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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052110
SENIOR DEPUTY PRESIDENT HAMBERGER
C2015/4407
s.739 - Application to deal with a dispute
Construction, Forestry, Mining and Energy Union
and
North Goonyella Coal Mines Pty Ltd
(C2015/4407)
North Goonyella Underground Mine Collective Enterprise Agreement 2012
Sydney
10.05 AM, THURSDAY, 2 JULY 2015
Continued from 29/06/15
PN2047
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Docking.
PN2048
MR DOCKING: Thank you, Senior Deputy President. Insofar as Mr Moran's additional notes are concerned, I'm content to rely upon the existing cross‑examination and I have now had a chance to look at his typed notes. I can make the points I want to make, but clearly they're not a fully accurate or complete record.
PN2049
THE SENIOR DEPUTY PRESIDENT: They did get tendered? Did they get tendered into evidence?
PN2050
MR DOCKING: No.
PN2051
THE SENIOR DEPUTY PRESIDENT: They didn't. Okay.
PN2052
MR DOCKING: Secondly, in any event, the points I wish to make can be made good by the existing evidence.
PN2053
THE SENIOR DEPUTY PRESIDENT: Okay, good.
PN2054
MR DOCKING: I appreciate the Senior Deputy President has at least one other matter listed today.
PN2055
THE SENIOR DEPUTY PRESIDENT: Fortunately, I'm now actually - I'm not inviting you necessarily to go all day, but I'm actually okay today, so don't feel under any particular - the other matter has been delayed.
PN2056
MR DOCKING: I can indicate that I can hand up - I have reduced to writing most of what I wanted to say.
PN2057
THE SENIOR DEPUTY PRESIDENT: Okay, thanks.
PN2058
MR DOCKING: At the same time, I also provide to the Commission a copy of parts of the 2010 North Goonyella Underground Mine Collective Enterprise Agreement, because the history of those provisions help explain some of the current provisions. There is some misnumbering that is carried over, but I think it's quite explicable what was intended by those persons covered by the 2012 agreement.
PN2059
THE SENIOR DEPUTY PRESIDENT: Right.
PN2060
MR DOCKING: Might I adopt, without reading onto the record, everything that is the supplementary outline?
PN2061
THE SENIOR DEPUTY PRESIDENT: Yes. I don't normally mark submissions, but you can be sure that I will - it's not evidence, but I will definitely have regard to them. I've obviously got some questions I want to ask you and you may well have covered some of it off in here, but I'll definitely make sure that it's included in my consideration.
PN2062
MR DOCKING: Thank you. The first five paragraphs are what I have described as general principles.
PN2063
THE SENIOR DEPUTY PRESIDENT: Just on this - well, you might be going into this, but I think one of the principles - I don't know if you mentioned it there and leave aside the issue of how you define "consultation", et cetera. The scope of the dispute I think is potentially - well, in my mind isn't necessarily entirely clear and I'd appreciate your view on what the scope - actually both parties. You may agree on this, which is great, but just in case you don't, can you be clear about what the scope of the dispute is.
PN2064
MR DOCKING: I do so by reference to paragraph 2 of the supplementary outline.
PN2065
THE SENIOR DEPUTY PRESIDENT: Okay.
PN2066
MR DOCKING: The scope of the dispute is determined by both written dispute applications. In addition, by the Construction, Forestry, Mining and Energy Union's outline that was provided on 26 June 2015.
PN2067
THE SENIOR DEPUTY PRESIDENT: I suppose that's okay. Is there a problem if, for example - I'm not saying there is a problem. I'm just trying to get you to address me on this. Let's say, hypothetically, something hadn't been in dispute during the course of the discussions that have occurred - maybe even hadn't occurred prior to that point. Can you then say, "Well, now we're putting it in dispute in our submissions?"
PN2068
MR DOCKING: Yes. I hadn't copied it, but I can get a copy made. I have included in paragraph 2 what the full bench said in Serco Australia Pty Ltd v United Voice, which confirms that the union, United Voice, was not limited to what was referred to in any dispute application, but the scope of the dispute extended to what was in the written submissions in that case.
PN2069
THE SENIOR DEPUTY PRESIDENT: Okay, yes. Thanks.
PN2070
MR DOCKING: If I needed further authority, I know it was under a different regime and constitutional regime, but the Commission I imagine would remember the High Court in Vista Paper Products where it was confirmed that the types of paper disputes then considered could be enlarged or varied as they went on.
PN2071
THE SENIOR DEPUTY PRESIDENT: Right, yes.
PN2072
MR DOCKING: I think Serco Australia is the complete answer, in any event.
PN2073
THE SENIOR DEPUTY PRESIDENT: Yes. Do you actually in your outline seek to identify the scope of the dispute any more than that?
PN2074
MR DOCKING: No.
PN2075
THE SENIOR DEPUTY PRESIDENT: It might be quite useful for me, I suppose, to make sure I've covered it all off, to break it up into issues, if you like, or components of the dispute. I hear what you - I mean, I will certainly look at the submissions, but, say, for example, is one of the issues in dispute compliance with the - I've forgotten the section number, but there's a section on contractors and external resources. There is obviously an issue about consultation about the use of contractors.
PN2076
That's obviously the case, that that's part of the dispute, but is potentially a separate issue - but I'm not sure whether it is or isn't an issue, which is, is the employer complying with that specific clause? Not the consultation clause, but the clause - I've forgotten its number, but there is a clause headed Contractors and - so what is your view on that?
PN2077
MR DOCKING: In the 2012 agreement, it is clause 36.
PN2078
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2079
MR DOCKING: And, yes, it is in dispute.
PN2080
THE SENIOR DEPUTY PRESIDENT: Okay.
PN2081
MR DOCKING: As I read the company's first outline, it anticipated that much. In particular, clause 36.2, which provides:
PN2082
It is not the intent of the company to permanently substitute or displace the whole or a part of the company's workforce with contractors and other external resources.
PN2083
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2084
MR DOCKING: The background to that dispute, I submit, goes back to July and August 2013, continuing until the present time - - -
PN2085
THE SENIOR DEPUTY PRESIDENT: There are separate proceedings before Lewin C, aren't there?
PN2086
MR DOCKING: Yes.
PN2087
THE SENIOR DEPUTY PRESIDENT: There are.
PN2088
MR DOCKING: They are apparently subject to directions. The CFMEU interests have filed statements.
PN2089
THE SENIOR DEPUTY PRESIDENT: I don't want to overlap. I don't want to end up, if he's dealing with something - I want to make sure I'm not dealing with the same - what is the dividing line between the two disputes, in your view?
PN2090
MR DOCKING: Could I first deal with this proposition: as developed in the supplementary outline, the first submission maintained by the CFMEU is the Commission as presently constituted should, apart from the 24 voluntary redundancies, refrain from there being any further redundancies until that matter before Lewin C is determined. The next step in those proceedings is the respondent is to file its materials.
PN2091
I think I can say - and Mr Williams will correct me if I'm wrong - Lewin C indicated he proposed having some communication with a member or members who may allocate or constitute the full bench, because Lewin C dismissed one dispute notification, but has given direction to set down and determine - I think he uses the expression "the residue of the other dispute.
PN2092
MR WILLIAMS: Just to be totally clear about it, the decision is before you. What he said, he has not yet determined whether there is a residue.
PN2093
THE SENIOR DEPUTY PRESIDENT: Right.
PN2094
MR WILLIAMS: But he has set a timetable for that determination.
PN2095
THE SENIOR DEPUTY PRESIDENT: Okay.
PN2096
MR DOCKING: I think both the applicant in this case and respondent, have no knowledge of if and when a full bench will be allocated and - - -
PN2097
THE SENIOR DEPUTY PRESIDENT: So there is an appeal against his first decision.
PN2098
MR WILLIAMS: Yes.
PN2099
THE SENIOR DEPUTY PRESIDENT: The decision to dismiss.
PN2100
MR DOCKING: Only part of the decision to dismiss; one of the two disputes.
PN2101
THE SENIOR DEPUTY PRESIDENT: Yes, okay. Just going on - and you might have covered this, but if that's okay if I can ask you - - -
PN2102
MR DOCKING: Certainly.
PN2103
THE SENIOR DEPUTY PRESIDENT: Obviously there is an issue about consultation and therefore - in clause 37, it says that the clause applies if -
PN2104
there is no consultation mechanism provided for elsewhere in this agreement.
PN2105
Now, there is obviously a clause that deals with redundancy and it actually has specific provisions about consultation there, so presumably to the extent that the dispute is about redundancy, then you don't look at clause 37.
PN2106
MR DOCKING: It may be triggered, then it's overtaken by you apply the consultation obligations and requirements in clause 38.
PN2107
THE SENIOR DEPUTY PRESIDENT: 38. Is there anything that I need to have regard to in clause 37 or can we just say, well, no, let's look at the consultation provisions in clause 38 and not worry about 37?
PN2108
MR DOCKING: Other than originally it is a type of major change, but if the Commission looks at clause 37.6 of the 2012 agreement, my submission is that makes it clear for this type of major change to production, program, organisation and structure, one does go to clause 38 for the consultation obligations -- -
PN2109
THE SENIOR DEPUTY PRESIDENT: So when it says "this clause 38 does not apply, such as clause 39," what does that mean?
PN2110
MR DOCKING: This is an example - - -
PN2111
THE SENIOR DEPUTY PRESIDENT: The numbers are wrong.
PN2112
MR DOCKING: The numbers are wrong.
PN2113
THE SENIOR DEPUTY PRESIDENT: So you think that should say "this clause 37 does not apply?"
PN2114
MR DOCKING: That's my understanding.
PN2115
THE SENIOR DEPUTY PRESIDENT: Where it says "such as clause 39", it should really be clause 38. Really that subclause is in the wrong place. "If a term of this agreement" - it probably should say "such as clause 38 provides for a major change, then this clause 37 does not apply." Is that how you read it?
PN2116
MR DOCKING: Yes.
PN2117
THE SENIOR DEPUTY PRESIDENT: Okay. In other words, we do look at clause 38. We don't look at clause 37.
PN2118
MR DOCKING: Whilst looking at clause 37 - - -
PN2119
THE SENIOR DEPUTY PRESIDENT: It may not make much difference, but I just want to be - - -
PN2120
MR DOCKING: - - - as is developed in the supplementary outline, it is of importance because the exclusion of clause 37.4 in the current consultation has no application.
PN2121
THE SENIOR DEPUTY PRESIDENT: It doesn't apply, yes.
PN2122
MR DOCKING: And that is understandable why the drafters or practical laypeople would maintain that in the 2012 agreement, because redundancy consultation disputes are a specific category and in a different category.
PN2123
THE SENIOR DEPUTY PRESIDENT: Yes, okay. So obviously then we look - you would say, anyway - to clause 38 and presumably that, therefore, is the key - so there is clause 36 that you said is relevant and clause 38. Is it fair enough to say there are essentially two sets of issues? One is the consultation about the redundancy process - well, about the whole redundancy issue, including presumably everything to do with - what does it say? Clause 38.2, they've got to take these measures, but then 38.3 would be the key one. It would include - it says "consultation about redundancies", but also 38.5, which is about how you actually make involuntarily redundant. In other words, there is an issue also about consultation, about the process of making people involuntarily redundant, which is a subset of the consultation, if that makes sense, but there is also an issue about compliance with 38.5(a) to (e) I suppose potentially.
PN2124
MR DOCKING: I think it's (a) to (d).
PN2125
THE SENIOR DEPUTY PRESIDENT: (a) to (d), okay.
PN2126
MR DOCKING: Another reason why I provided the extracts from the 2010 enterprise agreement, it demonstrates when you look at the 2012 agreement, clause 38.5(e) is a new benefit or entitlement of employees.
PN2127
THE SENIOR DEPUTY PRESIDENT: I said (e). So you include (e) in this?
PN2128
MR DOCKING: Yes.
PN2129
THE SENIOR DEPUTY PRESIDENT: I thought you said (d). I might have misheard you.
PN2130
MR DOCKING: No, the - - -
PN2131
THE SENIOR DEPUTY PRESIDENT: (e) is included in that, yes.
PN2132
MR DOCKING: Yes, and (e) is - - -
PN2133
THE SENIOR DEPUTY PRESIDENT: There is an issue about what it means, yes, but, nevertheless, it's part of the - okay. Is there anything else in what I've just described as what the issues are? Does the dispute cover anything else than those things?
PN2134
MR DOCKING: Can I make it clear insofar as 38.5(e) is concerned, disputes about the formulation of the selection criteria, their application and then the union on behalf of employees or individuals employees having a right to dispute the selections, are separate issues, but still related.
PN2135
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2136
MR DOCKING: They can stand alone by themselves regardless of disputes about what information, for example, should be provided for consultation.
PN2137
THE SENIOR DEPUTY PRESIDENT: Yes, so they're separate issues. Obviously related, but separate issues from consultation about those issues. There is an issue about whether they have been properly consulted in relation to those things, but there is also an issue about those things in themselves.
PN2138
MR DOCKING: Yes.
PN2139
THE SENIOR DEPUTY PRESIDENT: Compliance with those provisions. That's what I understood, but I just wanted to be clear.
PN2140
MR DOCKING: In particular, that is where the applicant says it's a classic example of looking at past conduct - - -
PN2141
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2142
MR DOCKING: Coming to an arbitrator and saying - - -
PN2143
THE SENIOR DEPUTY PRESIDENT: "This is why we've done it."
PN2144
MR DOCKING: - - - "I want a just and enduring outcome."
PN2145
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2146
MR DOCKING: "I want nothing like what happened in 2013," and therefore the private arbitrator should grant the orders sought by the applicant. By the orders, I'm particularly referring to orders 9 and 10.
PN2147
THE SENIOR DEPUTY PRESIDENT: But this agreement - I mean, I've been jumping around a bit. The 2012 agreement, that was approved by the Commission in 2012. I thought all the fight about the previous redundancy process was 2013.
PN2148
MR DOCKING: August 2013.
PN2149
THE SENIOR DEPUTY PRESIDENT: Yes, so it was after this agreement was made.
PN2150
MR DOCKING: Yes.
PN2151
THE SENIOR DEPUTY PRESIDENT: So we can't read into this agreement anything about that dispute, presumably.
PN2152
MR DOCKING: I'm sorry, I don't understand "read into".
PN2153
THE SENIOR DEPUTY PRESIDENT: Okay. I'm pre‑empting what you wanted to say. Don't worry. Forget about that for a minute. So what is the past conduct you're referring to?
PN2154
MR DOCKING: The past conduct I'm referring to. I'll go to the outline, at least in dot point - - -
PN2155
THE SENIOR DEPUTY PRESIDENT: Yes, that's fine.
PN2156
MR DOCKING: It has references to wish to go to.
PN2157
THE SENIOR DEPUTY PRESIDENT: Okay.
PN2158
MR DOCKING: I'll deal with this out of order, but I'll go to page 16, paragraph 35. The past conduct includes Logan J's judgment, which is an exhibit, CFMEU4, attachment LL7. The Commission will have seen that in the outline provided last Friday, there are two references to that judgment. By going to Friday's outline, page 3, paragraph 15(c), it sets out Logan J's finding at paragraph 42. I ask the Commission to note that his Honour found that Mr Niehaus was assisted by a John Deacon, the development superintendent, and Mr Terrence Courts, who was the longhaul coordinator.
PN2159
What happened in that case, there were a number of workings and re‑workings of Mr Ludlow's score at that level; his actual score itself. They were desperate - and I can put this - to get Mr Ludlow below the line to make him forcible redundant. They manipulated his score based on criteria to make it lower. That wasn't good enough to get him below the line to make him redundant on that occasion. They then manipulated and experimented with the weightings that would be given to the various manager/coordinator as opposed to supervisor ratings. It had been agreed before Asbury DP on 8 August 2013 that there should be supervisory input.
PN2160
Now, what occurred was to get Mr Ludlow and others below the line on that occasion, they tried 50/50. That is 50 per cent to manager who did ratings with coordinator and superintendent, and 50 per cent to superintendent. Still Mr Ludlow was to be retained. They then tried 60/40; no luck there. They then tried 70/30; no luck there. Finally they tried 80/20 per cent after reducing Mr Ludlow's score, which wasn't even the score on his rating sheet - the sanity check, as Mr Niehaus called it - but then reducing that score and applying 80/20 per cent, they finally got Mr Ludlow below the line so he was selected for forceful redundancy.
PN2161
That's the sort of past conduct I'm talking about and it's important when I asked Mr Moran about, "Well, who that was around in 2013 are going to be involved this time?" he has indicated in the affirmative that Mr Deacon is going to be involved again. He is one of the two persons referred to by Logan J in his judgment at paragraph 42. Mr Moran's evidence was he was unsure for Terrence Courts, the longhaul coordinator, but on this arbitration the Commission has got positive evidence that one of the three people referred to by Logan C is definitely going to be involved again and it cannot be ruled out that Mr Courts, the other one, will be, as well. They were involved in what Logan C described as the re-workings and different weightings in either all or parts or aspects of that process.
PN2162
In addition - and I will come to the orders in a moment - there are other persons who did the ratings in 2013 who may have done them on the night we were last here again or have done them in the meantime. The reason I can say that is I'll now go specifically to the orders of the Federal Court, exhibit CFMEU4, attachment LL8 commencing at page 119. That is in a separate folder. If the Commission has LL8 - - -
PN2163
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2164
MR DOCKING: What occurred, this matter was set down for a summary trial and it literally was on the doorstep that the respondent capitulated and said it would admit certain contraventions. Some of those contraventions concerning Mr Barry Elliott were only agreed on the very morning of the first day of the trial. But I want to go through to demonstrate the past conduct to show how extensive it was and how illegal, both because adverse action was taken contrary to general protection provisions in the Fair Work Act, but in addition there were section 50 Fair Work Act enterprise agreement contraventions. These are set out commencing at page 119.
PN2165
If one looks at the first order Logan J ultimately made, it can be the extent to which this illegality occurred. Mr Ludlow was dismissed, looking at (a), because he was the president of the lodge and a member of the lodge committee; (b) because he was a member of the union; (c) because he remained an officer of the union; (d) because he remained a member of the union. In (e) on the next page, he represented or advanced the views, claims or interests of an industrial association; namely, that of the union.
PN2166
Order 2 sets out for Mr Elliott - and it can be seen the reasons there included similar ones to Mr Ludlow, with a difference that the reasons for dismissal included here Mr Elliott was the secretary of the lodge, a member of the lodge, but in addition he was a Queensland district board member of the CFMEU. I pause there - he still is. They were the two industrial activity orders 1 and 2, but the company's illegality did not stop there. In order 3, a person by the name of Brendan John Woods, he was the site safety health representative and he was dismissed for reasons that included - he exercised those powers under the relevant Queensland legislation. The other aspects of that were particularised and admitted in (b) and (c). They were the general protection matters.
PN2167
I then go to the section 50 admitted contraventions under clause 38.5(c). Now, order 4 dealt with Mr Ludlow and it can be seen when one looks at the particulars 1, 2 and 3, the sorts of matters that were only identified post‑dismissal that the company purported to rely upon. This chronology cannot be disputed. Mr Ludlow, as I've provided a reference as set out in his evidence in this set of disputes - the process undertaken was, in my language, the old style tap on the shoulder, come into a room, "Here is an envelope. You are dismissed."
PN2168
That was in the context where the CFMEU and Mr Ludlow and Mr Brodsky had been seeking before the dismissals to have disclosed the ratings and the like, and for there to be a meeting with each employee before he or she was dismissed. The company refused to do so.
PN2169
THE SENIOR DEPUTY PRESIDENT: There was no finding - I suppose there was no need to - in terms of the construction to be given to - if you look at clause 38, one of the issues might be what a materially adverse assessment is. I'm not quite sure; it depends how you do them. Say you've got a situation where you get one to five for a particular criterion that's related to performance and/or attitude. Is it anything less than five that you'd have to be told about or anything less than three?
PN2170
It's not really clear what a materially adverse - obviously it means a negative assessment, but it doesn't really define what a negative assessment is. I don't know if you have got a view on that.
PN2171
MR DOCKING: Perhaps I'll get instructions during the course of this morning.
PN2172
THE SENIOR DEPUTY PRESIDENT: Okay.
PN2173
MR DOCKING: All for the moment I can indicate is I was going to go through 4, 5 and 6 for two purposes, because it actually gives - - -
PN2174
THE SENIOR DEPUTY PRESIDENT: There were omissions made by the employer of contraventions, so the judge didn't actually have to consider how to construe these provisions. Is that right?
PN2175
MR DOCKING: It was finally admitted from Mr Elliott on the day of the trial what is set out in order 6. Of course a Federal Court judge would not accept the plea or the acceptance of guilt unless satisfied - - -
PN2176
THE SENIOR DEPUTY PRESIDENT: No.
PN2177
MR DOCKING: - - - that it truly fell within clause 38(c).
PN2178
THE SENIOR DEPUTY PRESIDENT: Sure.
PN2179
MR DOCKING: And, therefore, was a section 50 civil penalty contravention. I want to go through 4, 5 and 6, because it gives examples of the types of matters which were admitted and accepted by the Federal Court in the civil penalty proceedings to constitute 38.5(c) matters. That is probably the best way I can demonstrate. I'll get instructions on the other questions during the course of this morning.
PN2180
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2181
MR DOCKING: The Commission will see that the sorts of matters that were admitted and found by the Federal Court to fall within 38.5(c) included, for Mr Ludlow, 4.1, an allegation that he did not work well as part of a team. Then in .2, that he was disrespectful and argumentative in his dealings, and accused a manager of criticising the red crew and opposing the efforts of the manager to ensure the workplace is safe. Then in .3, aggressively challenged the manager in relation to the fact that he had not issued a warning to the workforce in response to a tropical low.
PN2182
Senior Deputy President, I pause here. In the civil penalty proceedings, the CFMEU insisted on having read the affidavit evidence of each of these three persons which said not only did they breach 38.5(c), but their allegations were not true. If I had have been told about them, I would have been able to tell you they are untrue and/or put them in a proper context. None of that affidavit material was challenged in the Federal Court.
PN2183
This only occurred, might I say, not from the company disclosing all these reasons before dismissal. The only way they emerged was there was an interlocutory application, the applicant put on evidence in response to that interlocutory application and evidence, the respondent put on evidence.
PN2184
Once seeing the respondent's evidence, which was "The reason I gave" - take Mr Ludlow as the current example - "this score a rating is because I allege he acted this way. My ratings were done with Mr Courts and Mr Deacon", and various company personnel put on evidence alleging this is how he behaved. The applicant took advice, looked at 38.5(c) and said, "Thank you very much. That means you've contravened 38.5(c)". Why was this not disclosed before the dismissal? It's this very type of scenario by seeking - from you as the private arbitrator, is sought to be avoided. It's undeniable that the result of these proceedings cost both sides hundreds of thousands of dollars, time - - -
PN2185
THE SENIOR DEPUTY PRESIDENT: You have got to avoid it happening again I think is the - - -
PN2186
MR DOCKING: Yes.
PN2187
THE SENIOR DEPUTY PRESIDENT: For both parties.
PN2188
MR DOCKING: But having said that, Logan J also for the reasons set out in the judgment for part of the period - and this is quite unusual - ordered costs in favour of the applicant to reflect what had occurred; and the reasons and why part-costs are ordered are expressed in the judgment, and I adopt what's set out there. But I then go to order 5 for Brendan Woods and four matters are set out, and what's important is two refers to "Panel supervisor Harrington. Three. Panel coordinator John Miller. Four. Panel superintendent Sinclair Deacon". Now Mr Moran has confirmed - and I've got the cross‑referencing in the supplementary submission at page 17, paragraph 37(c):
PN2189
Harrington and Deacon will be involved in the 2015 ratings. Court may or may not be.
PN2190
Now let's assume Harrington is still a panel supervisor, which I'm instructed he is from those who work at the mine, he did his ratings most likely Monday night 29 June or by now. And I'll come to the evidence further about this issue but before doing so, the Commission will be able to see for Mr Woods one through to four, "Matters admitted and found to fall within 38.5(c)." Take for example number 3:
PN2191
View of the supervisor he was not a team player. Not where he was supposed to be underground. Not reliable. Did not apply himself. Did not always communicate with others well.
PN2192
These are the exact types of matters, if one looks at their proposed selection criteria at NGC1 that will be used again and by the same persons who have been admitted and found to have been involved in contraventions previously.
PN2193
MR WILLIAMS: That's not - - -
PN2194
THE SENIOR DEPUTY PRESIDENT: Of course they might have learnt their lesson.
PN2195
MR WILLIAMS: That is not correct. That is a substantial misrepresentation of what was before the Court and what the Court found.
PN2196
THE SENIOR DEPUTY PRESIDENT: Well, okay, I - - -
PN2197
MR WILLIAMS: I should leave it for submissions, I understand.
PN2198
THE SENIOR DEPUTY PRESIDENT: Okay.
PN2199
MR WILLIAMS: But that is profoundly misleading.
PN2200
THE SENIOR DEPUTY PRESIDENT: Okay, I'll - - -
PN2201
MR DOCKING: I immediately invite Mr Williams to particularise in dot or number form where I've misrepresented and I'll respond. Here's your chance now.
PN2202
THE SENIOR DEPUTY PRESIDENT: Well, do you want to do that?
PN2203
MR WILLIAMS: I'm able to do that, your Honour, yes.
PN2204
THE SENIOR DEPUTY PRESIDENT: Okay.
PN2205
MR WILLIAMS: Could you go to the decision of his Honour Logan J.
PN2206
THE SENIOR DEPUTY PRESIDENT: Where?
PN2207
MR WILLIAMS: It is attached to - well, I can hand it up.
PN2208
THE SENIOR DEPUTY PRESIDENT: I've got it. It's in here. No, it's just before where we were, isn't it? It's at page 95?
PN2209
MR DOCKING: 93 it starts, LL7 in exhibit CFMEU4.
PN2210
THE SENIOR DEPUTY PRESIDENT: Okay, yes. Yes, I've got it here. So, thanks.
PN2211
MR WILLIAMS: Now can I commence the explanation at paragraph 26 of his Honour's reasons - and sorry, I should put this in context. The history or the substantial history of that matter is before you, almost two years ago, and the chronology is this, that it's set out in Mr Schuller's affidavit that there was a selection process, a number of people left. Three and three only employees, of which Mr Ludlow was one, brought applications initially under the general protections provisions of the Fair Work Act claiming they'd been adversely treated, substantially because of union activity.
PN2212
An interlocutory application was made and it was resolved by consent. In his evidence Mr Schuller gave evidence that the material that was put forward by the union in relation to the interlocutory application was of concern to him. But he did not feel he had enough information at that time to determine whether or not the company, the subordinate company under his overall management - Mr Schuller being a very senior executive - had proceeded unlawfully. So the process towards trial continued but it is important that the interlocutory application, which included a reinstatement order in relation to wages at least, was made by consent. Our company consented to it.
PN2213
Mr Schuller then gives evidence that once the disclosure had been completed and all of the material was in, he reviewed it and he took advice and he determined that the matter - that NGC should not contest the proceedings. He then instructed his lawyers and Mr Kruger to attempt to negotiate an outcome with the CFMEU. Now the details of that negotiation are not before you but it is misleading for Mr Docking to suggest that on the doorstep of the Court, to sort of say a sudden capitulation.
PN2214
THE SENIOR DEPUTY PRESIDENT: I'm not terribly worried whether it happened on the doorstep or not, to be honest.
PN2215
MR WILLIAMS: No, but that - - -
PN2216
THE SENIOR DEPUTY PRESIDENT: That's a bit of a by the by anyway.
PN2217
MR WILLIAMS: Well by the by, but that was a misrepresentation.
PN2218
THE SENIOR DEPUTY PRESIDENT: Yes, okay.
PN2219
MR WILLIAMS: Then the company did plead to the contraventions and the matter proceeded by consent as a penalty proceeding. So when Mr Docking says that Mr Ludlow's evidence wasn't challenged, that's hardly surprising given that what the matter evolved into was a penalty proceeding. But that's also a matter of history. The misleading aspect that I'm concerned about comes here.
PN2220
THE SENIOR DEPUTY PRESIDENT: Okay, right.
PN2221
MR WILLIAMS: In paragraph 42 of his Honour's reasons he says this:
PN2222
Mr Niehaus was assisted by a Mr John Deacon, the development superintendent, and a Mr Terrance Courts, who was the longwall coordinator. The product of his assessment work was sent to another company officer, a Mr Serhan. There were a number of reworkings and different weightings which came to be allocated to that assessment process.
PN2223
And that's what occurred as his Honour found, and Mr Docking correctly said that what occurred was a manipulation of the weighting process to get to 80/20 and that's what the company accepted had led to an unlawful conduct in relation to the three employees, particularly Mr Ludlow.
PN2224
THE SENIOR DEPUTY PRESIDENT: Right.
PN2225
MR WILLIAMS: What his Honour did not find, and there wasn't a scrap of evidence before him upon which he could find and nor was it admitted, that there was any manipulation of the ratings given to any of the employees themselves. And he certainly didn t find that there was any manipulation by Mr Niehaus - - -
PN2226
THE SENIOR DEPUTY PRESIDENT: Hang on. So what - hang on, sorry I'm lost there. He says here:
PN2227
There were a number of reworkings and different weightings which came to be allocated to that assessment process.
PN2228
MR WILLIAMS: Yes.
PN2229
THE SENIOR DEPUTY PRESIDENT: But:
PN2230
...there was a deliberate manipulation of the weighting process, so as to yield a result which saw the termination of Messrs Ludlow, Elliott and Woods.
PN2231
MR WILLIAMS: So:
PN2232
It suffices to note that there was a deliberate manipulation of the weighting process, so as to yield a result which saw the termination -
PN2233
THE SENIOR DEPUTY PRESIDENT: Right, but isn't that what was just described?
PN2234
MR WILLIAMS: No, what Mr Docking is suggesting to you is that the subordinate coordinators and supervisors and managers were involved in a manipulation of the ratings, which is untrue.
PN2235
THE SENIOR DEPUTY PRESIDENT: No, no, I think there were two different things he was alleging, unless I misunderstood. One is there was this manipulation of the weightings, which is described there in paragraph 42 of the judgment.
PN2236
MR WILLIAMS: Yes.
PN2237
THE SENIOR DEPUTY PRESIDENT: To get a particular outcome, which is also referred to there. But there's a separate issue which is relevant to clause 38 - - -
PN2238
UNIDENTIFIED SPEAKER: Point 5(c).
PN2239
THE SENIOR DEPUTY PRESIDENT: I forget - so the one about, you know, if you have a materially adverse - it's 38.5(c).
PN2240
MR WILLIAMS: Yes.
PN2241
THE SENIOR DEPUTY PRESIDENT: Which is another issue.
PN2242
MR WILLIAMS: In relation to - - -
PN2243
THE SENIOR DEPUTY PRESIDENT: Which was that - - -
PN2244
MR WILLIAMS: Sorry.
PN2245
THE SENIOR DEPUTY PRESIDENT: - - - people had had adverse - forget about whether they were true or not because that's actually a separate issue. But people had been marked down because there had been a materially adverse assessment made and they hadn't been notified of that beforehand.
PN2246
MR WILLIAMS: And that's correct in relation to one employee.
PN2247
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2248
MR WILLIAMS: In accordance with Mr Schuller's affidavit, Mr Ludlow.
PN2249
THE SENIOR DEPUTY PRESIDENT: Right.
PN2250
MR WILLIAMS: Mr Schuller's assessment was that Mr Ludlow had received materially adverse ratings. Mr Schuller did not know and did not concede that those ratings were not valid.
PN2251
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2252
MR WILLIAMS: But he did say that he accepted that they had not been - on advice, they had not been discussed with Mr Ludlow in a - - -
PN2253
THE SENIOR DEPUTY PRESIDENT: Yes, I mean in a sense whether they were valid or not is another issue.
PN2254
MR WILLIAMS: It didn't matter to the - - -
PN2255
THE SENIOR DEPUTY PRESIDENT: We don't even need to make - it's already a breach if he has not been told about them.
PN2256
MR WILLIAMS: That's right.
PN2257
THE SENIOR DEPUTY PRESIDENT: Yes, yes.
PN2258
MR WILLIAMS: But Mr Docking has suggested, and when I rose he had suggested it with some ferocity, that there are a group of managers at the mine who are doing ratings who were engaged in some criminal process in 2013.
PN2259
THE SENIOR DEPUTY PRESIDENT: Well, no, I don't think he said criminal.
PN2260
MR WILLIAMS: That is utterly untrue.
PN2261
THE SENIOR DEPUTY PRESIDENT: I don't think anybody said it was a criminal - did you?
PN2262
MR DOCKING: No, it's actually a civil penalty.
PN2263
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2264
MR DOCKING: There's a difference between crime and civil penalties - - -
PN2265
MR WILLIAMS: Well, I'll withdraw that and I'm sorry if I've made the submission with some emotion.
PN2266
THE SENIOR DEPUTY PRESIDENT: But in breach of the agreement is the - - -
PN2267
MR WILLIAMS: That they themselves were involved in the scheme which Mr Schuller identified as having led to an unlawful result. There is no such evidence and no such finding.
PN2268
THE SENIOR DEPUTY PRESIDENT: If you look at paragraph - just to be clear. In the orders, paragraph 4:
PN2269
The company contravened section 50...in that the company contravened clause 38.5(c) -
PN2270
MR WILLIAMS: Correct.
PN2271
THE SENIOR DEPUTY PRESIDENT: Then:
PN2272
because the company made a materially adverse assessment of an employee Luke Adam Ludlow ... Mr Ludlow was not informed ... by a supervisor or manager of relevant concerns about his performance and/or attitude
PN2273
MR WILLIAMS: But which is not a finding that the - it is not a finding that the assessment was invalid. It's a finding that the requirement of natural justice - - -
PN2274
THE SENIOR DEPUTY PRESIDENT: About the process.
PN2275
MR WILLIAMS: Yes.
PN2276
THE SENIOR DEPUTY PRESIDENT: The process wasn't consistent with the agreement.
PN2277
MR WILLIAMS: But it is being squarely suggested to you that you should be concerned that there are supervisors giving ratings who were involved in a scheme in 2013. Utterly untrue.
PN2278
THE SENIOR DEPUTY PRESIDENT: Well, I think what was put was there was evidence to that effect.
PN2279
MR WILLIAMS: And there was not.
PN2280
THE SENIOR DEPUTY PRESIDENT: You say there was no evidence to that effect?
PN2281
MR WILLIAMS: Yes, the manipulation which was found by his Honour, based on admissions, was the weighting manipulation from 50/50 to 80/20. The ratings themselves were not impugned except to the limited extent of a breach of the natural justice requirement. It's an important matter, your Honour, because you are being asked to suggest that the process might misfire because of conduct which these people engaged in in 2013. It is misleading.
PN2282
THE SENIOR DEPUTY PRESIDENT: Who was responsible for the breach of clause 38.5(c)?
PN2283
MR WILLIAMS: His Honour found - - -
PN2284
THE SENIOR DEPUTY PRESIDENT: He talks about the company, that's the trouble.
PN2285
MR WILLIAMS: His Honour found at paragraph 43:
PN2286
The end result is that, on the evidence before me, it is not possible to identify precisely who undertook the process of manipulation.
PN2287
That's the manipulation that his Honour - - -
PN2288
THE SENIOR DEPUTY PRESIDENT: Right, that's that - yes.
PN2289
MR WILLIAMS: - - - referred to in the previous para of the weighting process:
PN2290
What is clear enough pellucidly clear, sadly is the overall directing mind and will at local company level in respect of the process. And that, as one might readily surmise from the admitted effect of statements made, is Mr Pawley -
PN2291
THE SENIOR DEPUTY PRESIDENT: And he's not there any more?
PN2292
MR WILLIAMS: He is not there.
PN2293
THE SENIOR DEPUTY PRESIDENT: No.
PN2294
MR WILLIAMS: To the very happy common ground of the parties.
PN2295
THE SENIOR DEPUTY PRESIDENT: Okay.
PN2296
MR WILLIAMS: And Mr Serhan who is also mentioned as being involved after the supervisors delivered their ratings is also not with the company.
PN2297
THE SENIOR DEPUTY PRESIDENT: Right.
PN2298
MR WILLIAMS: Neither would be involved in this process and you will have also heard evidence - and I don't want to pre‑empt my submissions - that Mr Carter and Mr Moran were acutely sensitive to this issue.
PN2299
THE SENIOR DEPUTY PRESIDENT: Well, I might as well put this on - you know, put this issue up front. I mean it did concern me that there's this history and it's a relatively recent history. I appreciate that some of the key people may not be there any more but there are other people who are. At the very least it is going to create an atmosphere of what is already probably a high level of distrust, it's going to exacerbate that. And Mr Moran's response to this, the fact that there was this recent history, was "I just won't look at it. I'll just come at it with a fresh mind, and that's the solution".
PN2300
I have to tell you I think that was an extraordinarily nave approach. It doesn't mean it was unlawful. I'm just saying that, you know, if you had a recent problem like this I would have thought you would be doing your level best as a company to make sure it didn't happen again and the way to do that is hardly to say, "I won't even look into it. You know, I won't even consider it. I won't look at what went wrong last time. I'll just basically pretend it never happened and we'll just look at this as if it never happened".
PN2301
MR WILLIAMS: Well, your Honour - - -
PN2302
THE SENIOR DEPUTY PRESIDENT: That is essentially what he seemed to be saying which struck me as extraordinarily nave.
PN2303
MR WILLIAMS: Mr Moran said that?
PN2304
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2305
MR WILLIAMS: Mr Moran's a junior superintendent - a human resources superintendent.
PN2306
THE SENIOR DEPUTY PRESIDENT: Well, he's the HR person responsible for the process isn't he?
PN2307
MR WILLIAMS: And let me make some more of my submission about this. Mr Docking in extensive detail expressed some concern, which we accept he must be making on instructions. You don't see any such concern in the process itself at operational level. This issue of Mr Moran and Mr Carter essentially quarantining themselves from those concerns was specifically put on the table by them at the first meeting, and Mr Ludlow specifically said he agreed with that process. There is no concern. It is not even - - -
PN2308
THE SENIOR DEPUTY PRESIDENT: I'm concerned.
PN2309
MR WILLIAMS: - - - an aspect of the dispute between the parties.
PN2310
THE SENIOR DEPUTY PRESIDENT: Okay, okay.
PN2311
MR WILLIAMS: The parties themselves discussed the approach they were going to take in that regard and it was agreed. The vehemence of the submission is put on instructions but it doesn't reflect that there's any genuine concern at operational level.
PN2312
THE SENIOR DEPUTY PRESIDENT: Right.
PN2313
MR WILLIAMS: Quite the contrary.
PN2314
THE SENIOR DEPUTY PRESIDENT: Okay.
PN2315
MR WILLIAMS: And I can show you the minute where that matter was specifically tabled and specifically discussed and agreed.
PN2316
THE SENIOR DEPUTY PRESIDENT: Okay, we might come back to that. I don't want to - because I didn't have a problem with you saying what you said there but, I mean, just in terms of - - -
PN2317
MR WILLIAMS: I'm certainly happy to wait but I - - -
PN2318
THE SENIOR DEPUTY PRESIDENT: No, no, I'll give you an opportunity to say that.
PN2319
MR WILLIAMS: It was such a sensitive submission I thought I needed to say something about it.
PN2320
THE SENIOR DEPUTY PRESIDENT: No, that's fine. Thanks Mr Williams.
PN2321
MR DOCKING: Yes I invited, subject to the Commission's view, Mr Williams expressing his concerns. I'll invite him to retract at the first possible opportunity his suggestions that counsel has misrepresented anything. I can assure the Commission that I had a conference the Sunday night before the Federal Court trial was to commence. I can assure the Commission I'm the one who personally handed up to Logan J the proposed declarations.
PN2322
THE SENIOR DEPUTY PRESIDENT: Look, I really don't want to get into this. I appreciate why you're concerned.
PN2323
MR DOCKING: Yes.
PN2324
THE SENIOR DEPUTY PRESIDENT: But I think when the company did or didn't make these submissions, I really don't want to go into.
PN2325
MR DOCKING: Yes.
PN2326
THE SENIOR DEPUTY PRESIDENT: Because it's not relevant to what I'm - - -
PN2327
MR DOCKING: As for that point. The second point is I think, with respect, in the exchanges with the Senior Deputy President and Mr Williams, the Senior Deputy President has understood what I was addressing. I was addressing the section 50 Fair Work Act contraventions because of a contravention of clause 38.5(c). I was addressing the orders which were made by the court and which were consented to by the respondent.
PN2328
THE SENIOR DEPUTY PRESIDENT: Yes, is there anything in the judgment about those orders?
PN2329
MR DOCKING: Yes, I'll come to that.
PN2330
THE SENIOR DEPUTY PRESIDENT: Yes, okay.
PN2331
MR DOCKING: But I first want to go back to the orders.
PN2332
THE SENIOR DEPUTY PRESIDENT: Right.
PN2333
MR DOCKING: Exhibit CFMEU4 page 122:
PN2334
It is trite to say whether in a criminal matter or a civil penalty proceeding a plea of guilty is the ultimate admission of guilt that you have done what is specifically particularised. These contraventions were particularised specifically to include - take page 122 order 5(2) "Panel supervisor Daniel John Harrington marked down the employee on a number of issues."
PN2335
And so on.
PN2336
THE SENIOR DEPUTY PRESIDENT: Yes, but isn't that - there's no question that they made these negative assessments, materially negative assessments. Is there anything in there that - and that the employee was not told about them.
PN2337
MR DOCKING: Yes.
PN2338
THE SENIOR DEPUTY PRESIDENT: And that's the breach of the agreement. That's all you have to - - -
PN2339
MR DOCKING: The company, it's trite to say, is - - -
PN2340
THE SENIOR DEPUTY PRESIDENT: No, but is there anything in the judgment that suggests or that says that "and those assessments were wrong" or just - - -
PN2341
MR DOCKING: I'm going to come to that.
PN2342
THE SENIOR DEPUTY PRESIDENT: Okay.
PN2343
MR DOCKING: But can I just make the point of course a company can only act through natural persons.
PN2344
THE SENIOR DEPUTY PRESIDENT: Sure.
PN2345
MR DOCKING: The ratings could only be done by natural persons. Without natural persons the company could not have contravened this type of provision in 38.5(c), and that's why it was particularised quite specifically about the various company personnel marking down, rating the employee. Now let's go to the judgment which is in exhibit CFMEU4, the annexure before, and on the point I submitted before it will show it's no misrepresentation. I'm referring to page stamped 109 in exhibit CFMEU4. Paragraph 54 says as follows:
PN2346
The so-called concerns which I shall identify in the declarations made were not sought to be defended by evidence by the company in the context of what proved to be a penalty hearing. What I mean by that is that there was no affirmative evidence, much less any contest, in relation to the denials by the workers concerned that the so-called concerns had any foundation in fact. Their evidence is to the contrary. It is important that they be recognised in the future as persons who are not blemished in the way that the company sought to and did blemish them for the purposes of the redundancy rating process.
PN2347
The Senior Deputy President will recall before it was suggested I misrepresented, that I correctly put the position that affidavit evidence was read on behalf of each of those employees which was contrary to what is in their respective section 50 clause 38.5(c) declarations. My position is confirmed by Logan J's judgment. Whilst looking at the judgment I go now to page 114 in exhibit CFMEU4, paragraph 72 dealing with costs. The provision in section 570 that was relied upon, in particular paragraph (b):
PN2348
The court is satisfied that the party s unreasonable act or omission caused the other party to incur the costs.
PN2349
His Honour Logan J then set out the history from paragraph 74. It can be seen at paragraph 75:
PN2350
The company s initial response, as I have said, was that of contesting...
PN2351
And then I ask the Commission to read all of that paragraph and then paragraph 76:
PN2352
The company, self-evidently from the discovered documents, always had within its possession a set of documents which sent a very particular message upon analysis as to what had occurred.
PN2353
And it will be seen from Logan J said at paragraph 76 through to 79 his Honour explained why the union should get the costs of an incidental to the preparation and filing of affidavits in reply. And what occurred is, it was the discovered documents comprising - I'll deal with Mr Ludlow as the classic. Mr Niehaus' ratings done with the two other persons I've already mentioned, as identified by Logan J in paragraph 42, including the sanity check rating of Mr Niehaus which is in evidence in these proceedings. What then occurred is indeed Mr Ludlow's rating was manipulated. His actual score was lowered in addition to trialling with 80/20, 70/30, 60/40 until they used 80/20 to get him below the - - -
PN2354
THE SENIOR DEPUTY PRESIDENT: So 80 manager, 20 supervisor is that what that is?
PN2355
MR DOCKING: Yes.
PN2356
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2357
MR DOCKING: I have not misrepresented. I've accurately and faithfully conveyed the position to the Commission. So I appreciate I'm doing this out of order but I've no difficulty with that. I then want to deal with Mr Williams' plea that this was never raised, the 2013 matter, in the minutes and part of why I said at the beginning there was sufficient in the evidence already about the minutes that I wouldn't trouble the Commission further is because let's look at the written minutes. I've summarised the proposition in the supplementary outline at page 18, subparagraph 38(d), and it has Mr Brodsky raising at 11 June 2015, a consultation meeting, in response to being told that Mr Carter and Mr Moran were not familiar with what happened last time in 2013, Mr Brodsky telling them it was Mr Moran's job to find out what happened last time.
PN2358
THE SENIOR DEPUTY PRESIDENT: So where is this?
PN2359
MR DOCKING: I'm first dealing with the supplementary submission.
PN2360
THE SENIOR DEPUTY PRESIDENT: Yes, I'm looking at that.
PN2361
MR DOCKING: Page 18.
PN2362
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2363
MR DOCKING: Subparagraph (d).
PN2364
THE SENIOR DEPUTY PRESIDENT: D, okay.
PN2365
MR DOCKING: I will then go to the source - - -
PN2366
THE SENIOR DEPUTY PRESIDENT: Okay, yes.
PN2367
MR DOCKING: - - - document which is Mr Moran's statement, page stamped 36.
PN2368
THE SENIOR DEPUTY PRESIDENT: Yes. So page 36. It's down the bottom 36.
PN2369
MR DOCKING: Yes, and I've said it's at about point 7 on the page. Does the Commission see "SM and MC"?
PN2370
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2371
MR DOCKING: In the company's own evidence it records:
PN2372
SM and MC said that they were not familiar regarding what happened last time in 2013. CB told SM that it's his job to find out what happened last time. MC stated that he was aware of certain items but not full details of what happened leading to the process in 2013.
PN2373
It has never been accepted by the CFMEU, whether it be Mr Brodsky or Mr Ludlow, that Mr Carter and Mr Moran should not find out what had occurred in 2013. And I again invite Mr Williams at the first available opportunity to correct his submission mistakenly, I accept, put a short time ago about it not being raised in the minutes.
PN2374
THE SENIOR DEPUTY PRESIDENT: I guess the question though is not just whether he said, "You know, you need to go back and have a look at what happened but what we need to do" - you know, did they ever come up with an idea of what should be done to prevent it happening again, which is perhaps more important?
PN2375
MR DOCKING: And that's why I said the scope of these disputes includes two dispute notifications, the one on 23 June 2015 which expressly put in dispute the selection criteria, followed up as per - I'm not sure if it was agreed directions or however it came about - 26 June 2015, the first outline of the CFMEU with attachment A which expressly sought orders 9 and 10, and I - - -
PN2376
THE SENIOR DEPUTY PRESIDENT: But generally in relation to the selection criteria a lot of the debate was about the seniority issue, wasn't it?
PN2377
MR DOCKING: Only part of it. The reason that is - I've tried to, in the time available, reflect the evidence on this issue. Can I go to the submission and I've set out at page 18 the evidence I've identified about who is responsible for the 2015 criteria and what they knew about 2013. The Commission will see I've extracted on page 18 of the supplementary outline that it's Mr Carter and Mr Moran are responsible for what is in the criteria. That's the concession of Mr Moran.
PN2378
They both understood either it was run poorly in 2013 - I stop there, "poorly" in the sense of p-o-o-r-l-y, I'm reliably told it was often a comment about how things were pawley - p-a-w-l-e-y on site for some time and probably continuing. I assume he was using "pawley" in the sense of p-o-o-r-l-y. And then I then set out the evidence and it is extraordinary and an arbitrator should get involved, as permitted by the enterprise agreement.
PN2379
When one looks at the propositions I've listed then from (d) through to (i), Mr Carter has not even read any of the three statements of Mr Ludlow in - I'll call them the Lewin C proceedings -and the Commission will see he sets out and goes through how the ratings were misapplied, including the company never used the selection criteria that had been negotiated at consultation meetings and then agreed to by the company before Asbury DP on 8 August 2013.
PN2380
He goes through the manipulation process relying on what were discovered documents, which without discovery would never have been disclosed. Frankly, the company would have got away with it. It's only because of compulsion of law was the true position ever revealed. Then it seems none of them have read Logan J's judgment or Lewin C's decision, that's fairly recent, this year, and Mr Moran says, "That's just - it's with Peabody Energy's legal department." Some faceless people, who knows who they are, whether he, she or a combination.
PN2381
And then importantly (h) and (i), even once he looked at the clauses when he was shown a copy in the witness box, he admits nothing has been done. There was an objection about 38.5(d), but it does have work to play here, because Mr Moran confirmed they can go right back to 2012 to base an assessment on. If they're going right back to 2012, there's that three-month period after the 2012 agreement came into play, so they had to give written notice.
PN2382
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2383
MR DOCKING: No-one has even bothered looking at that and finding out what notice or notices exist and who they apply to, and I know that - - -
PN2384
THE SENIOR DEPUTY PRESIDENT: Well, there don't seem to have been any instructions given to the managers or supervisors involved as to how to comply with those - I mean, not now but to deal with this, there don't seem to have been any direct - because there have been lots of ways you could address those in part of a process, but there doesn't seem to have been any guidance given to them. I don't suppose you'd expect your individual supervisors to be aware of those kinds of details in an enterprise agreement.
PN2385
If they're not given any guidance by the HR people responsible for the process or the senior management - and there doesn't seem to have been, but I can't see any evidence that they - well, the evidence seems to be completely to the contrary, no guidance given at all to how to deal with those issues.
PN2386
MR DOCKING: There's two parts to that. Objectively, they should be aware of what's in the enterprise agreement, individuals have to take the dispute up with the supervisor and go through the steps. Of course, the present disputes are on the basis the agreement allows steps to be bypassed and come to the Commission. Secondly, I agree. That's why I was asking, what steps or measures have been put in place? That's the language of whether it be health, safety or complying with industrial instruments comprising enterprise agreements which contravene civil penalty breaches, and the answer is, "Nothing."
PN2387
And I emphasise it's in the best interest of my client and the CFMEU and Mr Ludlow and the other employees, and I would have thought the company, frankly, to avoid the alternate which I've described already. And they're not submissions made lightly that the seriousness with which the Federal Court treated the matter is shown by the level of pecuniary penalties imposed, which are on the scale or range, if such a thing exists, are shown to be very high, reflecting the seriousness of the contraventions.
PN2388
THE SENIOR DEPUTY PRESIDENT: What were they?
PN2389
MR DOCKING: If I got back to the judgment - - -
PN2390
THE SENIOR DEPUTY PRESIDENT: This was in CFMEU4, wasn't it?
PN2391
MR DOCKING: Yes, or if I go to the orders in exhibit CFMEU4, page 124, from order 5 gives the breakdown of individuals going 4 to 10, that is individual either general protection contraventions or enterprise agreement contraventions. As the court must do, totality was applied and that's why it came in at order 11, a total sum of 120,000 in pecuniary penalties.
PN2392
And whilst dealing with what's the last part of the submission about orders 9 and 10, I know the Senior Deputy President raised some concerns as an experienced practitioner both before coming on the Bench and on the Bench, "Do people require things in writing?" I rely upon =- I've set out and I apologise, it's not in the list of authorities, I just put it in this morning, extracted what's at page 19 of the supplementary outline, what Gray J said in the Federal Court.
PN2393
I appreciate facts are different in each case, but what I've highlighted for emphasis, I submit provides guidance in the present case before the Commission. These are not every day redundancies, given the past conduct of this company, and further, given what 38.5(c) and (d) and D actually provide, that the Commission noted during the question that 38.5(c) does make express reference to:
PN2394
Unless the employee has been informed, either verbally or in writing, by a supervisor or manager of relevant concerns about his or her performance and/or attitude.
PN2395
It has contemplated one option is that it would be something informed by writing and then 38.5(d) requires notice to have been given. So those matters contemplate things in writing and I pause here, I think a copy is in the respondent's bundle of authorities. These are provisions that were arbitrated and determined by Lawler VP, which the parties elected to - - -
PN2396
THE SENIOR DEPUTY PRESIDENT: Was this the 2012 agreement or, in fact, was this the previous agreement?
PN2397
MR DOCKING: 2010 agreement. It has the equivalent of 38.5(a) to (d) then numbered clause 39. The 2012 agreement, the negotiating parties elected to include and make 38.5(a) to (d), but added clause 38.5(e).
PN2398
THE SENIOR DEPUTY PRESIDENT: Yes, right. So just going back to the 2010 agreement, was that like a section 240? Does anyone know what the history was there? I don't want to go too much into it, but - - -
PN2399
MR DOCKING: Mr Ludlow refers to it in part, but my recollection is tab 4 of the respondent's authorities I'm told - - -
PN2400
THE SENIOR DEPUTY PRESIDENT: I don't have that as yet, do I?
PN2401
MR DOCKING: I have no objection to a folder being provided now.
PN2402
THE SENIOR DEPUTY PRESIDENT: Is that okay? Can you - - -
PN2403
MR DOCKING: When the Senior Deputy President goes to tab 4, paragraph 1 confirms it's a private arbitrator under agreement in the context of an application under section 240 of the Fair Work Act. Whilst looking at that decision, it can be seen there's heading, "Seniority Redundancy and Recruitment" appearing above paragraph 6. It helps explain what the Vice President intended by "material" in paragraph 9, which goes on to the top of the fourth page. That's for the - I can call it "Seniority", 38.5(b) as it now is.
PN2404
Then paragraph 10, keeping in mind that it was clause 39 - it looks like 39.6 in the 2010 agreement. It's dealt with in paragraph 10. That's expressly said to provide, about halfway through that paragraph:
PN2405
some additional protections against the remote possibility that the company does decide to embark on a further round of redundancies included for the real purpose of getting rid of long serving employees who are perceived as being troublemakers or a drag on productivity.
PN2406
I would have thought - and I wasn't in that arbitration, I think my past inquiries, Mr Bukarica from the National Office of the CFMEU was. It has a remarkable resemblance to the High Court in Bowley in 1975 or 1976 when the shop steward in that case was considered by GMH to be a troublemaker. Of course, in that case, the High Court confirmed the employer had not discharged reverse onus.
PN2407
It's quite clear, as drafted and intended by the Vice President:
PN2408
Employees cannot be treated adversely in redundancy process on the basis of poor attitude and/or performance unless that issue has been raised squarely with them.
PN2409
That is, employees should have an opportunity to address a perception of poor attitude and/or performance.
PN2410
THE SENIOR DEPUTY PRESIDENT: So 40.3 and 40.4, are they now - - -
PN2411
MR DOCKING: 39.3 and 39.4, a copy of those are either in this folder or in an attachment to the first dispute application.
PN2412
THE SENIOR DEPUTY PRESIDENT: So what are 40.3 and 40.4 brought into?
PN2413
MR DOCKING: They've now become 39 - is the recruitment clause and it was added in 39.3 or 39.4, that if the company decided to expand its operator and/or tradesperson workforce and the decision is made before three months after operator and/or trade employees have - - -
PN2414
THE SENIOR DEPUTY PRESIDENT: Yes, but I'm just - I'm looking at Lawler VP's decision at paragraph 10, at the end of paragraph 10 he says:
PN2415
40.3 and 40.4 are designed to act as disincentive against such a process and -
PN2416
you know, which is about manipulation, if you like - - -
PN2417
MR DOCKING: Yes.
PN2418
THE SENIOR DEPUTY PRESIDENT: And:
PN2419
in the unlikely event that any manager decided to embark on such a strategy, providing an additional avenue in redress above -
PN2420
you know, unfair dismissal and general protections et cetera. So I'm just trying to think what are those clauses that he says provide an avenue of redress?
PN2421
MR DOCKING: It's now in - if the Commission looks at the first dispute notification, these clauses are attached. They are part of clause 39, Recruitment.
PN2422
THE SENIOR DEPUTY PRESIDENT: In a sense, they are simply talking about getting rid of people there, rather than recruiting people.
PN2423
MR DOCKING: In the old language I'm thinking, of Hodder C in Gordonstone, it would be like an increase-in-hands clause. If the company is going to its own workforce within three months of the they were to be given a preference.
PN2424
THE SENIOR DEPUTY PRESIDENT: I see. Okay.
PN2425
MR DOCKING: The troubling matter which is unresolved, when it refers to tradesperson workforce, you get around that by, "I will not employ them as permanent employees. Instead I will use contractors. That is one of the complaints that's been agitated by Mr Ludlow and the Lodge and the District Office since August 2013; the complaint being they used contractors.
PN2426
THE SENIOR DEPUTY PRESIDENT: Yes. But I mean, can I put it to you - I don't know if it's a good time or not, but it's a bit of a different situation. I mean, the complaint there seemed to be, well, last time they had this restructure they reduced the number of people quite substantially - this is 2013 - and then as permanent people have left - but they didn't - I don't think there was a reduction in output.
PN2427
There was, kind of, an attempt to reduce - well, it was a reduction in manning levels whilst still basically trying to maintain output, I think. You can tell me if that's wrong. Whereas now they're saying, "We're closing the whole shift. We're only going to have one production shift." And so before the argument was they were trying to squeeze the permanent workforce down, but below what you needed to really operate the mine, and therefore they - instead of bringing back new permanent people, they brought back contractors.
PN2428
But here everyone - you know, actually reducing production quite substantially and everyone is going; the permanent people are going and contractors are going. It' s not a question of - I mean, according to the plans as outlined, there's no - you know, I mean there's - the contractors are going as well.
PN2429
MR DOCKING: That's what was said last time, but within a few weeks - - -
PN2430
THE SENIOR DEPUTY PRESIDENT: But it makes more sense, if I can put it that way, this time because there's actually a whole lot of production that's not going to be happening.
PN2431
MR DOCKING: Yes, and it's submitted it even makes more sense that the as-needs, as it was described, will lead to contractors being used to fill permanent employee positions.
PN2432
MR WILLIAMS: No, that's not the evidence.
PN2433
MR DOCKING: Well, Mr Williams says that - - -
PN2434
THE SENIOR DEPUTY PRESIDENT: No, we'll get (indistinct) and we'll give you a chance because it's - - -
PN2435
MR DOCKING: I've given the references in the supplementary outline, but that's the evidence of Mr Ludlow, and it's quite clear that, take DWS, for a long time, Mr Carter put in "as-needs", the union kept saying, "We want numbers",
PN2436
THE SENIOR DEPUTY PRESIDENT: Yes, but he said - well because it will fluctuate and so he said, "Well, that's the average number. It will be about 26."
PN2437
MR DOCKING: And in cross-examination he confirmed he couldn't guarantee that would be right.
PN2438
THE SENIOR DEPUTY PRESIDENT: No, well, I mean, that - he probably can't guarantee anything really.
PN2439
MR DOCKING: Yes, but he can guided by past conduct and the same conduct happened last time. Within a few weeks, redundant employees were being engaged by contractors to work side‑by‑side with permanent employees in the permanent employees' old positions. So it's not - - -
PN2440
THE SENIOR DEPUTY PRESIDENT: Yes, okay.
PN2441
MR DOCKING: It's not a standard complaint in the sense that - - -
PN2442
THE SENIOR DEPUTY PRESIDENT: There's a history to it.
PN2443
MR DOCKING: Yes, past conduct which can be used to guide what a private arbitrator should do this time. But that's, if you like, a separate issue; what may or may not happen with the contractors, but coming back to orders 9 and 10, it reinforces why the relief is sought. It's not mere speculation, it's past conduct and then it's been confirmed. Nothing has been done to reduce or prevent it happening again. People have been doing ratings who did mark down previously in contravention of clause 38.5(c).
PN2444
There is not a scintilla of evidence that they've received any education in any step or measure. Nor could there be suggested to the contrary, given Mr Moran's admissions and he's one of the two people responsible for designing and applying the selection criteria.
PN2445
It's not good enough, and Mr Williams now downgrading, "He's a junior person." He's actually the human resources superintendent responsible not just for this mine, but two other mines and understandably Mr Carter, who also holds a statutory position of site senior executive, as well as general manager, relies heavily on a human resources superintendent. Mr Moran confirmed that he had no practical coal experience. In no way do I criticise him for that. He was employed as a specialist human resources practitioner.
PN2446
Now, this is not an unsophisticated company. Using the language of Mr Carter, it has - as he agreed in cross-examination - world-wide executives; it has a global role. I'm referring, for example, to the one who issued under his name the 3 June 2013 press release in St Louis, USA. It cannot be said that these type of order in 9 or 10 is somehow burdensome to such an employer, given the vast resources it has.
PN2447
It has a specialist human resources superintendent that deals with this and two other mines. It has its legal department that it's confirmed some faceless people are dealing with the just ongoing dispute that's before Lewin C, and it also has international global executives.
PN2448
So what is sought is quite proportionate and reasonable in order 9, and in order to be fair to both sides, order 10 is added that if there is any dispute, it can come back before the Commission for determination. The CFMEU has no difficulty with a third part, as sometimes the language is used, in the form of the Fair Work Commission being involved; nor could this company, because it agreed to the dispute settlement procedure to have a private arbitrator in the form of the Fair Work Commission.
PN2449
It should not occur again, a common occurrence of a tap on the shoulder, "Come to a room; here's your envelope and you are dismissed." Because what's happened before Lewin C, what's subject to appeal, is in essence the Commissioner upheld the company's argument that those employees could not invoke the dispute settlement procedure, because once they were dismissed they had become former employees.
PN2450
That's why the relief is sought, to ensure that before anyone is dismissed, after getting notice that he or she can use their rights under clause 38.5(e) and the dispute settlement procedure in clause 41. I would have thought that's an unremarkable position.
PN2451
Mr Ludlow understandably in his statement has taken issue with the respondent's submissions saying it would be diabolical or disastrous. I would have thought that, using Mr Williams' language is stated with some ferocity and without justification, given what happened in August 2013.
PN2452
I can then just briefly refer to some other points in the supplementary outline. Page 7, paragraph 9, I've provided some of the references to the first application why, apart from the concession made on Monday about what's now become 24 voluntary redundancies, there should be an order refraining the company from terminating anyone else. Part of the trouble is - - -
PN2453
THE SENIOR DEPUTY PRESIDENT: Just to be clear, you're not seeking an order to prevent the people who have put their hands up for voluntary redundancy to go?
PN2454
MR DOCKING: Yes.
PN2455
THE SENIOR DEPUTY PRESIDENT: I think that's what you said a couple of day - - -
PN2456
MR DOCKING: Yes, and I got instructions on Monday and during the course of the day with the effluxion of time, when Mr Moran got in the box he said it had gone from 20 to 24, and I'm told that there's no objection to those 24 being processed.
PN2457
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2458
MR DOCKING: But the primary position is they should be refrained from acting further until Lewin C makes his ruling.
PN2459
THE SENIOR DEPUTY PRESIDENT: You say "acting further" you are talking about involuntary redundancies?
PN2460
MR DOCKING: Yes. There should be a consultation process in the meantime. This is only for the first order. There should be the other orders made. I'm not suggesting the consultation process and the like should be put in abeyance, and Mr Williams referred to Mr Schuller's statement in subparagraph (d) of paragraph 9 on page 7 of the supplementary outline, I've given the reference where all of Mr Schuller's affidavit in the Federal Court has been attached to exhibit CFMEU4.
PN2461
I've summarised the essence of it. In order to try to mitigate their penalties, they came to the Federal Court and said if there's any unfairness or illegality by the company beyond the three, they could be explored in the Fair Work Commission. It has never happened and - - -
PN2462
THE SENIOR DEPUTY PRESIDENT: Wasn't that for you to do?
PN2463
MR DOCKING: What occurred is they took a first jurisdictional objection before Asbury DP, trying to have it struck out effectively. That was unsuccessful. Looking at the respondent's list, I'm not sure if that's included, but I can provide the Fair Work Commission reference to that. The CFMEU also made an application that it should be allocated to another member, because Asbury DP had been involved in the conciliation and I think she said on record she had been up to her eyeballs in proposals, which that's what you expect the arbitrator to do.
PN2464
It then got transferred to Lewin C. The respondent or company then took, for the first time, a new jurisdictional objection, what I will call "the former employee objection".
PN2465
THE SENIOR DEPUTY PRESIDENT: Right.
PN2466
MR DOCKING: So it's had - - -
PN2467
THE SENIOR DEPUTY PRESIDENT: There is authority, of course that, you know, once you are no longer employed - I mean, you can't lodge a dispute; it doesn't mean that you can't have a dispute you have already lodged dealt with. I think that's the kind of way the authorities lie on that.
PN2468
MR DOCKING: And it's the last part that Lewin C is in the process of determining. Might I say, I will be arguing before the Full Bench that what they haven't looked at is you can have an enterprise agreement pertaining to the employment relationship. It uses in the current act the same language the Act, as it then was, had in cases like Ranger Uranium and Boyne Smelter.
PN2469
Those cases actually found you can have either a former employee can bring a dispute - - -
PN2470
THE SENIOR DEPUTY PRESIDENT: I (indistinct) to ask you there, is that Full Bench constituted? No it's not. Okay.
PN2471
MR DOCKING: I think Mr Williams and I both - - -
PN2472
THE SENIOR DEPUTY PRESIDENT: Okay. Well, I won't say any more. I mean I'm not aware - - -
PN2473
MR WILLIAMS: We're on common ground that we're surprised that it hasn't been, your Honour, but that's the fact.
PN2474
THE SENIOR DEPUTY PRESIDENT: Okay. It is actually quite an interesting issue more broadly, I have to say. I won't express an opinion on this, so - - -
PN2475
MR DOCKING: No, I - - -
PN2476
THE SENIOR DEPUTY PRESIDENT: Just in case I end up on the Full Bench.
PN2477
MR DOCKING: Obviously, I'm not suggesting it's any - - -
PN2478
THE SENIOR DEPUTY PRESIDENT: No, I don't need to deal with it. I just - it's just - - - -
PN2479
MR DOCKING: But it is an interesting point.
PN2480
THE SENIOR DEPUTY PRESIDENT: But your point is they took a jurisdictional point.
PN2481
MR DOCKING: Yes.
PN2482
THE SENIOR DEPUTY PRESIDENT: Having said in the court that that could be dealt with through the Commission.
PN2483
MR DOCKING: Yes.
PN2484
THE SENIOR DEPUTY PRESIDENT: Okay.
PN2485
MR DOCKING: And I'm not saying the delay is attributable exclusively to the respondent. Various sides, including eh Commission could suggest pointing fingers, but it doesn't get anywhere.
PN2486
THE SENIOR DEPUTY PRESIDENT: Lewin C is retiring very soon, so I hope that does - that may help, I don't know, to finalise the matter.
PN2487
MR DOCKING: But the point also which will be interesting is the Boyne Smelter, Ranger Uranium, Cram - the retained employees can take a dispute on behalf of former employees separately from the former employees.
PN2488
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2489
MR DOCKING: Part of the appeal is none of those arguments relying upon that line of authority were dealt with, let alone that 38.5(e) was newly introduced in the 2012 agreement, but was not there in 2010.
PN2490
THE SENIOR DEPUTY PRESIDENT: Are you going to take me to - was there anything about the history of the inclusion of subsection (e)? Or are you - - -
PN2491
MR DOCKING: Other than what I've stated, there's no evidence available I'm aware of, other than it emerged as a result of enterprise bargaining.
PN2492
THE SENIOR DEPUTY PRESIDENT: Right.
PN2493
MR DOCKING: And it was included as a new 38.5(e). But just while dealing with the concerns and I'd always accept Mr Williams acts on instructions, but if you look at the bottom of page 7, part of why the, I'll loosely call, the former employee dispute was dismissed, was what I've put in bold was said to be position on 8 May 2015. I checked the transcript in the early hours and the timing, announcing something 3 June 2015 and - - -
PN2494
THE SENIOR DEPUTY PRESIDENT: Well, from St Louis. They may not have told the local managers - - -
PN2495
MR DOCKING: Well, you can understand the concerns, but I think - - -
PN2496
MR WILLIAMS: Let's be very careful here. That should be withdrawn. That comment was made on 8 May 2015. I made it. I made it on instructions and I am - and I made it on instructions which where the instructions given to me and believed - - -
PN2497
THE SENIOR DEPUTY PRESIDENT: I don't think - I'm not sure there is any suggestion anyway. I wouldn't accept there was in any way any evidence of anyone being misleading. I'll just tell you that now. There can be all sorts of reasons why he may have legitimately said that at the time. It came up - it was two weeks later there was announcement.
PN2498
MR WILLIAMS: My instructions, to my knowledge, it was true.
PN2499
THE SENIOR DEPUTY PRESIDENT: I made that interjection because I find that very - - -
PN2500
MR WILLIAMS: I think there was an inference sought to be drawn which is inappropriate.
PN2501
THE SENIOR DEPUTY PRESIDENT: Yes, okay.
PN2502
MR DOCKING: I expressly said I accept before I commented on it that Mr Williams would act on instructions.
PN2503
THE SENIOR DEPUTY PRESIDENT: No, but there may be - - -
PN2504
MR DOCKING: I'm not concerned about my position. I'm concerned about my client's position.
PN2505
THE SENIOR DEPUTY PRESIDENT: I don't think there would be any reason to believe that the instructions weren't honest as well, that at that time there weren't any proposals that they would have known about. There is no evidence to the contrary.
PN2506
MR DOCKING: Yes, there's a chronology which may get explored elsewhere.
PN2507
THE SENIOR DEPUTY PRESIDENT: Okay, but in this case there's no evidence. The announcement was some weeks later.
PN2508
MR DOCKING: Even if one treats it as an unfortunate proximity in time, unfortunate for the employees to be made redundant.
PN2509
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2510
MR DOCKING: And those yet to have their case heard.
PN2511
THE SENIOR DEPUTY PRESIDENT: Not great for the managers. I don't suppose they get much pleasure out of this process either, quite frankly, in my experience.
PN2512
MR DOCKING: I imagine may have some issues.
PN2513
THE SENIOR DEPUTY PRESIDENT: Well, I think most would find it a rather difficult process.
PN2514
MR DOCKING: Yes, and the final point that I want to make on 38.5(e) is going to the applicant's list of authorities to - what is behind tab 8. It is a reference to the Full Court of the Federal Court in Transport Workers Union of Australia v Coles Supermarkets Australia Pty Ltd (2014) FCAFC 148. It should be behind tab 8.
PN2515
THE SENIOR DEPUTY PRESIDENT: I've got CFMEU - - -
PN2516
MR DOCKING: It would be the bundle of authorities - - -
PN2517
THE SENIOR DEPUTY PRESIDENT: I'm looking at CFMEU.
PN2518
MR DOCKING: I might not have handled up a bundle of authorities either.
PN2519
THE SENIOR DEPUTY PRESIDENT: Okay, it's in your bundle.
PN2520
MR DOCKING: Yes. I now provide them.
PN2521
THE SENIOR DEPUTY PRESIDENT: Yes, okay, so if you could hand them up, that would be great.
PN2522
MR DOCKING: I appreciate the Commission as presently constituted would be well familiar with principles of interpretation. Why I go to this judgment is set out commencing from paragraph 39, that is the oft cited passage of Madgwick J in Kucks v CSR Ltd [1996] IRCA 166; (1996) 66 IR 182, and I rely upon both those passages to support that 38.5(e) does indeed give a right for either the CFMEU on behalf of its members, the North Goonyella Lodge people like Mr Ludlow and Mr Elliott who are accredited employee representatives under the enterprise agreement, or an individual employee the right to bring a dispute under 38.5(e). It clearly fits within both propositions in Kucks.
PN2523
I do understand from what has been argued before Lewin C that Mr Williams may submit to the contrary. However, as I understand the submissions before - and Mr Williams will correct me if I'm wrong - it has never previously been suggested before Lewin C that an employee, if he or she took the dispute before he or she was dismissed, that they would be precluded from bringing a dispute about the selection criteria.
PN2524
My concern is now, I'm not sure if in the present proceedings, accepting we're not bound what they have submitted before, are now suggesting an existing employee cannot use 38.5(e). Perhaps that will be something he will clarify in his submissions. But subject to responding to the submissions of Mr Williams, they were my submissions.
PN2525
THE SENIOR DEPUTY PRESIDENT: Okay, thanks. We might just have a five minute adjournment. Do you want longer or only five?
PN2526
MR WILLIAMS: No, five minutes is fine, your Honour. I might borrow Mr Docking's high tech - - -
PN2527
THE SENIOR DEPUTY PRESIDENT: We will just adjourn for five minutes or so.
SHORT ADJOURNMENT [11.35 AM]
RESUMED [11.47 AM]
PN2528
MR WILLIAMS: Thank you, your Honour. Might I hand up a written submission? Mr Docking has a copy. Your Honour, like Mr Docking, I ll be able to rely, of course, on the written submission as well as my oral submissions and that will save some time.
PN2529
Your Honour, Mr Docking spent a large part of his submissions dealing with an event which occurred nearly two years ago. Now I m not suggesting that at least some of his submissions weren t relevant, but we re now in 2015 and we need to address the issue which is before the company and before its workforce now and we need to do it in a pragmatic and effective and efficient way.
PN2530
My client, NGC, faces an urgent and critical need to reduce costs. In doing so, it has made the decision, and one can imagine what a difficult decision this was, to also produce its production, essentially by half. One can only imagine the level of distress that an organisation must feel when it makes a decision as a coal producing company to reduce its production by half. And naturally enough, although is if you were able to make suggestions to the contrary, that must come with a significant reduction in head count. And your Honour is quite familiar with the evidence, that that is to be achieved by a combination of permanent employees and contractors, and large numbers of each.
PN2531
And it does so, in our submission, in an economic environment where the urgency of the need could not be seriously questioned. Mr Carter gave evidence of the profound reduction in coal prices since 2011. Mr Brodsky gave evidence of a number of similar processes that he s been involved in in recent times. And in one of the cases that we ve handed up, the BHP Coal case, Logan J, treated it as a matter of notoriety, that this is an industry which is facing a very grave economic situation.
PN2532
Now, your Honour, in this environment, the primary submission of the CFMEU is to suggest that you should order it to stop that process, not reduce cost. Delay its process to a date which could not be ascertained and indeed, offers no undertaking as to damages. It has, according to Mr Carter s evidence, offered no genuine suggestion of other ways that the company could achieve its financial objectives. I don t criticise them for that.
PN2533
But it comes to you with a position of substantial overreach, and in our submission, in a situation where my client and the managers and the senior people in it, as your Honour rightly points out, are as distressed and anxious about this process as anyone, have in my submission, consulted in an entirely compliant way and are proposing to apply or to implement the redundancy process in a way which is otherwise entirely compliant with the enterprise agreement.
PN2534
Now, the proposed changes were published to the workforce on 3 June, so almost exactly a month ago. Since then, the parties have been working to a methodical timetable or methodically working to a timetable and it s a timetable which has been which is almost completely agreed was almost completely agreed between the parties, at least up to the date that the CFMEU as an organisation decided to move the matter into this Tribunal.
PN2535
The minutes record that my client s implementation proposal is that, or was, that both voluntaries and involuntaries be decided by 30 June. Mr Ludlow asked them to defer to 1 July and they didn t agree to do that, although the practical situation we now face is that they have done that. And there was no disagreement as between the consulting parties that the redundancies ought to be implemented in accordance with the timetable which is for 9 and 10 July.
PN2536
Until 21 June 2015, when the CFMEU decided that they would litigate, there was no quibble between the parties as to that timetable. It was substantially agreed.
PN2537
THE SENIOR DEPUTY PRESIDENT: Just, not sort of indirectly on that point, but in that timetable that you just referred to and that you handed up earlier this week, you said that the forced redundancy process be completed on 9 and 10 July- - -
PN2538
MR WILLIAMS: Yes.
PN2539
THE SENIOR DEPUTY PRESIDENT: - - -when employees were notified of their forced redundancy. When actually would they leave? That day?
PN2540
MR WILLIAMS: That day.
PN2541
THE SENIOR DEPUTY PRESIDENT: That day, okay, right.
PN2542
MR WILLIAMS: But that s well, your Honour, to be completely accurate about it, I don t have a specific instruction about that, but that is invariably what occurs.
PN2543
THE SENIOR DEPUTY PRESIDENT: Okay, right.
PN2544
MR WILLIAMS: And I m quite sure that- - -
PN2545
THE SENIOR DEPUTY PRESIDENT: No, I assumed that s probably the case, but I just wanted to be clear.
PN2546
MR WILLIAMS: Yes.
PN2547
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2548
MR WILLIAMS: And the fact that there is no dispute, or has been no real genuine dispute between the consulting parties about that is no doubt reflective of the fact that everyone understands how difficult and distressing these processes are for everybody. Everyone understands that that distress and anxiety can spill over into other sorts of issues, wellbeing issues, safety issues, production issues. And the practical people who met five times in that period and exchanged much correspondence and information can be taken to have understood that there was an imperative to have this matter concluded quickly.
PN2549
And that s not just from the company s point of view, although as Logan J recorded quite correctly in the BHP Coal case, a delay in implementation of restructuring of this size clearly comes with enormous financial cost. My client has made the difficult decision to halve its production and it needs to work through that to a conclusion as quickly as possible.
PN2550
Now, the last thing that this workplace needs, and has not asked for at the workplace level, is more delay in that process, or anxiety, more uncertainty. Now, your Honour, you have an- - -
PN2551
THE SENIOR DEPUTY PRESIDENT: Well, their representative is asking, potentially well effectively for a delay, I think realistically.
PN2552
MR WILLIAMS: And no doubt on instructions.
PN2553
THE SENIOR DEPUTY PRESIDENT: So well, I mean, aren t they the representatives of almost every employee almost all the employees are members of the CFMEU.
PN2554
MR WILLIAMS: Your Honour, I m not doubting the instruction I m not doubting the instruction. Unless- - -
PN2555
THE SENIOR DEPUTY PRESIDENT: Well, it s a bit hard then to turn around and say they haven't asked for delay, isn t it?
PN2556
MR WILLIAMS: Well, I m simply reading the minutes of the things that we appear be comfortably agreed between the consulting parties at workplace level, including Mr Ludlow. There was no context- - -
PN2557
THE SENIOR DEPUTY PRESIDENT: Is that question though, is there, that there were still issues in dispute?
PN2558
MR WILLIAMS: Yes.
PN2559
THE SENIOR DEPUTY PRESIDENT: Leaving aside the dispute notifications to the Commission, obviously, even up until that point there clearly were, even based on Mr Moran s evidence, there had been some issues that hadn't been resolved. I mean, there s no question of- - -
PN2560
MR WILLIAMS: No question.
PN2561
THE SENIOR DEPUTY PRESIDENT: So, you know, presumably there was no I don't know what well obviously, if everything had been able to be sorted out by the end of the month, end of last month, then people might have been happy with the timetable. But given that the whole well, there were at least some matters that hadn't been resolved, even based on the evidence of the minutes and Mr Moran s evidence. You know, presumably people wanted those things sorted out before the process was implemented. Isn t that a reasonable inference?
PN2562
MR WILLIAMS: No doubt, your Honour. I m not doubting the jurisdiction of the CFMEU as the organisation to bring the matter and they make their submission to you about the way the timing should be delayed as a result.
PN2563
THE SENIOR DEPUTY PRESIDENT: Look, just so you know. I understand that there are costs to any delay in implementation of the process. There are costs obviously to the company, financial costs potentially this is if it happened.
PN2564
MR WILLIAMS: Yes.
PN2565
THE SENIOR DEPUTY PRESIDENT: There are costs for the people involved, if you like, psychological and potentially financial costs to them.
PN2566
MR WILLIAMS: Yes.
PN2567
THE SENIOR DEPUTY PRESIDENT: I do understand that, I m not quibbling with that.
PN2568
MR WILLIAMS: I understand that, your Honour. And I wasn't suggesting that it wasn't available even, for the CFMEU as an organisation, to take a different view or to take a view that the circumstances required a delay. That s what they ve done. But I do make a submission, based on the evidence, that the parties themselves appear the negotiating parties before a different position was taken, appeared to have been at one about the need to bring this matter to a conclusion quickly. And I will make a submission in order, that the matters genuinely in dispute, as opposed to the matters that have been put to you across the Bar table, were relatively narrow.
PN2569
And your Honour, you have an absolute discretion as to what to do in relation to this dispute, as a private arbitrator. If you were persuaded- - -
PN2570
THE SENIOR DEPUTY PRESIDENT: Well, I don t have absolute discretion. There are some constraints.
PN2571
MR WILLIAMS: Well, I should qualify that.
PN2572
THE SENIOR DEPUTY PRESIDENT: Don t encourage me to do something I shouldn t do.
PN2573
MR WILLIAMS: No, of course not, your Honour. Under section 739, in fact, makes it clear that you can t make an order which is inconsistent with the enterprise agreement which gives you the authority. So let me not say that I m inviting you to do something which the agreement wouldn't would be inconsistent with the agreement of course.
PN2574
But you have a discretion, depending of course, on the issues before you and the way you determine them, to arrive at an outcome which is appropriate and fair to the parties. Now, your Honour, I m confident that I can persuade you, if you re not already persuaded, that this is a company which has consulted in a compliant way, which has a sensible approach to each of the issues in dispute and recognising that, in many cases, there s no requirement for agreement. And in relation to its implementation proposal in respect of selection criteria and other things which are not quite agreed, that its position is compliant with the enterprise agreement.
PN2575
And your Honour, if you found if you were persuaded to the contrary that there d been a profound failure of process which was about to cause genuine injustice on the facts before you, then you have whatever authority you need to resolve that. But, if your Honour had concerns or if you felt there d been something short of perfect compliance with consultation or one issue or another, then at that point you d have to weigh up whether there is anything which should be done, to delay this process particularly, which would do which would reduce harm rather than cause harm. And in my submission, anything which prolongs the agony or the anxiety for all people at the NGC Coalmine is likely to cause harm.
PN2576
So, your Honour, when you come to weigh if there should be remedy, what the remedy should be, the no doubt they re matters which would have to be considered. But our position is, of course, that you would not be persuaded that my client has proceeded in a non-compliant way and you wouldn't be concerned, despite submissions to the contrary, that there s any risk that it s going to do so in the future.
PN2577
Now, the starting point, of course, in your consideration has to be the enterprise agreement and the enterprise agreement dispute resolution clause is authorised by section 739 of the Fair Work Act. And in section 739(3) it provides, understandably enough, that:
PN2578
In dealing with the dispute the Fair Work Commission must not exercise any powers limited by the term.
PN2579
And in section 739(5), it makes the point I made before, that you must not make a decision that is inconsistent with the Act, or in this case, the NGC enterprise agreement.
PN2580
Now, the workplace change I m sorry, the dispute resolution clause provides in clause 41.1 that it applies only to disputes:
PN2581
Which arise as to the interpretation or the application of the agreement or the (indistinct) or disputes expressly authorised to be dealt with under this clause by another term of the agreement.
PN2582
So whatever the dispute can be about, relevant to this Tribunal, it must be a dispute about the interpretation or application of the agreement.
PN2583
And in our written submissions, your Honour, you didn t hear much about this in oral submissions from Mr Docking, but I assume they re still pressed, there was much evidence, much concern or asserted concern raised about safety issues on the site. I ll come back to the facts, but I want to make the point now that an issue about safety compliance, including consultation in relation to safety, does not arise under the enterprise agreement.
PN2584
THE SENIOR DEPUTY PRESIDENT: Is there nothing about safety in the agreement?
PN2585
MR WILLIAMS: No.
PN2586
THE SENIOR DEPUTY PRESIDENT: Nothing at all?
PN2587
MR WILLIAMS: No relevant to this matter, your Honour. There is evidence that there is a consultation process going on- - -
PN2588
THE SENIOR DEPUTY PRESIDENT: No, no, in the agreement.
PN2589
MR WILLIAMS: I m not aware- - -
PN2590
THE SENIOR DEPUTY PRESIDENT: You take me to the enterprise agreement, is there anything in the enterprise agreement that talks about safety?
PN2591
MR WILLIAMS: Well, your Honour, I better make sure. There is a provision in relation to mines rescue training.
PN2592
THE SENIOR DEPUTY PRESIDENT: Right.
PN2593
MR WILLIAMS: I don t understand there to be an unresolved issue about mines rescue training. But the company s safety, health and management system is a system which is regulated under different legislation, the Coal Mining Safety and Health Act, which is Queensland statute. And as the evidence reveals, there are consultation obligations under that statue and those consultations, as Mr Carter was cross-examined at length about, are proceeding. But that is not a consultation process which is within the purview of this agreement. Nor might I say, on the evidence, is there any cause for concern about the way that process is proceeding.
PN2594
Your Honour, the next matter to be considered is what is actually genuinely in dispute between the parties, and in my submission, it s narrower than the CFMEU would suggest. I ve made my submission in relation to timing. Your Honour, I accept that the discussion in relation to timing may have proceeded in part on a presumption that other issues would be resolved or at least, consultation would have taken place, but it is the fact that never, at any time, in the consultation process was it ever suggested to my client that it should stand its process down, for example, until any residue of the 2013 dispute had been dealt with never suggested. It s only suggested in these proceedings.
PN2595
The original dispute application filed between which is before you of course was substantially about the timing in relation to involuntary redundancies and nothing else. It s been expanded by, since then, and my client has cooperated in ensuring that all the matters are before you. And by that I mean that it agreed to bypass other steps in the dispute resolution procedure to allow everything to be before you. But the first dispute application made in the Fair Work Commission is very narrow. We ve seen a significant expansion since and then we ve seen an even more significant expansion as the evidence has unfolded. But the matters which were genuine in dispute between the parties were not extensive.
PN2596
And I will deal now with that issue of the relevance of the 2013 dispute, your Honour, and that s a matter which has troubled you.
PN2597
THE SENIOR DEPUTY PRESIDENT: Well, I guess so.
PN2598
MR WILLIAMS: Yes.
PN2599
THE SENIOR DEPUTY PRESIDENT: Yes, it s hard to no, go on.
PN2600
MR WILLIAMS: And I hate to- - -
PN2601
THE SENIOR DEPUTY PRESIDENT: It does concern me, obviously. I appreciate that we re not dealing with the 2013 situation, I understand.
PN2602
MR WILLIAMS: No, we are not and we are not. Your Honour, Mr Docking I made a submission which Mr Docking has asked me to correct.
PN2603
THE SENIOR DEPUTY PRESIDENT: I ll be frank, I mean, and you probably would know, what concerned me was not so much concerned that what happened in 2013 happened, but that s on one level that s history.
PN2604
MR WILLIAMS: Yes.
PN2605
THE SENIOR DEPUTY PRESIDENT: The trouble is, what worried me was particularly worried me, quite frankly- - -
PN2606
MR WILLIAMS: Yes.
PN2607
THE SENIOR DEPUTY PRESIDENT: - - -was Mr Moran s evidence of almost an unwillingness to learn anything from it and almost a deliberate kind of pout your head in the sand approach. And then given that there are specific provisions, I am concerned I ll flag this right up front.
PN2608
MR WILLIAMS: Yes.
PN2609
THE SENIOR DEPUTY PRESIDENT: There are specific provisions in the agreement about the way that the process for choosing people for involuntary redundancy is supposed to operate- - -
PN2610
MR WILLIAMS: Correct.
PN2611
THE SENIOR DEPUTY PRESIDENT: - - -that are relatively unusual.
PN2612
MR WILLIAMS: They are unusual.
PN2613
THE SENIOR DEPUTY PRESIDENT: And quite prescriptive, in a sense, in some respects anyway. I m talking about particularly the kind of procedural fairness. That is an unusual provision.
PN2614
MR WILLIAMS: It is.
PN2615
THE SENIOR DEPUTY PRESIDENT: It is there.
PN2616
MR WILLIAMS: It is.
PN2617
THE SENIOR DEPUTY PRESIDENT: It s pretty clear well, I think there are some issues about exactly what it means in a practical sense, but and I asked that question about of Mr Docking about well, what is a materially adverse assessment. But I d be interested in your view as well.
PN2618
MR WILLIAMS: Well, let me- - -
PN2619
THE SENIOR DEPUTY PRESIDENT: But I m concerned that there didn t seem to be - but I m happy to be contradicted if you can there didn t seem to be anything in the process as outlined, that was going to have regard to that requirement and it sort of just relied, it seems, relied that you know, all the people involved would just know that that s what they had to do.
PN2620
MR WILLIAMS: Yes.
PN2621
THE SENIOR DEPUTY PRESIDENT: But there s nothing in the process, unless I ve missed it, that actually tells them that s what they ve got to do.
PN2622
MR WILLIAMS: Well, your Honour, this- - -
PN2623
THE SENIOR DEPUTY PRESIDENT: So you can almost make an assumption, based on my experience, that they wouldn't do it.
PN2624
MR WILLIAMS: That was Mr Moran s evidence. You weren t the only one to be somewhat surprised by that. Mr Carter, unfortunately wasn't asked questions about it. Can I take you to the minutes of the very first meeting on 9 June 2015 which is SM3, to Mr Moran s statement? Now, on the second page, there s a this is the very first meeting there s a heading Forced redundancies . And MC, which is a reference to Mr Carter says this:
PN2625
Due to what happened last time, we want to apply the current EA with consideration to Asbury s ruling which involves 50/50 rating weighting between supervisor and management.
PN2626
So can I make this point, that it would be to understate the position to say that the company has not both learned from the 2013 process and has determined that it will steps to avoid what happened on that occasion. I made a submission, and I won t repeat it, that the issue which was of the most concern in 2013 was this manipulation of weightings. So Mr Carter has gone to the first meeting and he has said:
PN2627
We re not going to make that mistake again. We agree, without being asked, we agree that the supervisors and management will both be involved and not only that but they will be involved with equal weight.
PN2628
And your Honour, I ve made a submission that that was 95 per cent of the concern identified by Logan J.
PN2629
Now it is true and sorry, just to complete, Mr Ludlow asked for the section criteria to be provided. Then Mr Moran stated that:
PN2630
Mike Carter and Mr Moran had intentionally not delved deeply into the process used last time. This is due to the errors that were made. We are unsure of what errors were made. We wanted to strictly apply the enterprise agreement and look at it with fresh eyes. Mr Ludlow says he was happy with that approach.
PN2631
That s the reference that I made in the submission which Mr Docking has challenged that at the operation there was no dispute or there was agreement about that process. And Mr Ludlow is an employee of NGC and he s the lodge president. Mr Docking, correctly, referred you to a statement which Mr Brodsky had made at a later meeting and I did not have that reference in my mind when I made the submission, and I am happy to acknowledge that Mr Brodsky had expressed a concern about 2013 and a suggestion that the managers of NGC should educate themselves about it at a later meeting, and I acknowledge that.
PN2632
But the submission that I did make, and I don t resile from it at all, is that as between the people who worked and lived at that mine and I did say, the people at the operations there was agreement that really, a fresh start was required, and Mr Ludlow agreed to that. Mr Brodsky, of course, is an employee of the CFMEU and it s demonstrably clear that the CFMEU takes a different position.
PN2633
THE SENIOR DEPUTY PRESIDENT: I must say, just not by-the-by. I mean, even if Mr Ludlow really did say and I m not saying he didn t, but he was happy with that approach, I think it s nave or would be naive if that s the approach that was taken.
PN2634
MR WILLIAMS: Well, I think- - -
PN2635
THE SENIOR DEPUTY PRESIDENT: To not try and learn from a mistake like that.
PN2636
MR WILLIAMS: Well, I- - -
PN2637
THE SENIOR DEPUTY PRESIDENT: I just think from a business point of view, if I can put it that way.
PN2638
MR WILLIAMS: Your Honour, I agree.
PN2639
THE SENIOR DEPUTY PRESIDENT: It doesn't matter whether Mr Ludlow thought it was okay.
PN2640
MR WILLIAMS: But Mr Carter s- - -
PN2641
THE SENIOR DEPUTY PRESIDENT: I m not saying it s irrelevant, but I m just saying that if it was my business, let me put it that way- - -
PN2642
MR WILLIAMS: I understand.
PN2643
THE SENIOR DEPUTY PRESIDENT: - - -I d certainly want to- - -Well, your Honour, I don t disagree.
PN2644
MR WILLIAMS: Well, your Honour, I don t disagree. As I said, you weren t the only person surprised by Mr Moran s evidence.
PN2645
THE SENIOR DEPUTY PRESIDENT: Yes, okay.
PN2646
MR WILLIAMS: But Mr Carter s comment though reflects that the organisation most certainly has learned.
PN2647
THE SENIOR DEPUTY PRESIDENT: Yes, okay.
PN2648
MR WILLIAMS: In relation to what was the key issue in 2013.
PN2649
THE SENIOR DEPUTY PRESIDENT: Yes. But what about the other issue- - -
PN2650
MR WILLIAMS: Well, your Honour, this is my suggestion about this. The first suggestion I make and my submission I make is that it is a concern about future compliance rather than a dispute between the parties which is before you. So I make that submission. It is not- - -
PN2651
THE SENIOR DEPUTY PRESIDENT: Well, it s not really because the assessments have actually already been done, I think, or will be done probably today. They would have been done this week.
PN2652
MR WILLIAMS: I understand they ve been done, yes.
PN2653
THE SENIOR DEPUTY PRESIDENT: So I don't think it s about future compliance, it s about what well, this is an important point. It s obviously there may or may not there s no evidence that there hasn't been compliance.
PN2654
MR WILLIAMS: Precisely.
PN2655
THE SENIOR DEPUTY PRESIDENT: That s not quite the same as future complaint, because no one knows yet- - -
PN2656
MR WILLIAMS: No.
PN2657
THE SENIOR DEPUTY PRESIDENT: - - -what the circumstances so no one s been told.
PN2658
MR WILLIAMS: Your Honour, there is no evidence, so- - -
PN2659
THE SENIOR DEPUTY PRESIDENT: There is I mean, I suppose, and I m sort of jumping ahead obviously, and this is- - -
PN2660
MR WILLIAMS: No, it s an important issue, your Honour.
PN2661
THE SENIOR DEPUTY PRESIDENT: - - -the critical issue, it s about what process let s say well, first of all, it s not clear that people are going to be told well, tell me if I ve got this right. Are people going to be told the basis of those assessments? Are they going to be I think what happened last time, the evidence was and I appreciate this is last time, was that people were just told, You re going to be made redundant, you re on the list, you re out the door . And when they asked, Well, how could that be, I m a really good worker? I m paraphrasing Mr Ludlow I think they said, Well, I m not going to enter into that, you re just on the list, you re out the door .
PN2662
So obviously, in relation to this process, the company has outlined a process for scoring people.
PN2663
MR WILLIAMS: Yes.
PN2664
THE SENIOR DEPUTY PRESIDENT: Are people is there any evidence of this, and I m not asking you to give evidence from the Bar table, but was there any evidence about whether people would be told what their scores were? Not anybody else s scores, but what their scores were and why they had been scored that way?
PN2665
MR WILLIAMS: There was no evidence that that was proposed.
PN2666
THE SENIOR DEPUTY PRESIDENT: No evidence, yes.
PN2667
MR WILLIAMS: And your Honour- - -
PN2668
THE SENIOR DEPUTY PRESIDENT: Because if they re not, then obviously they re not going to know whether an adverse assessment they re going to have to try and guess whether an adverse assessment. It s going to be very hard to tell whether there s been compliance with this provision in the agreement.
PN2669
MR WILLIAMS: Yes, it s an unusual provision and, in fact, if those who produced it, agreed to it, had considered how it might work in practice, perhaps they would have they might not have agreed to it. But anyway, here we are.
PN2670
THE SENIOR DEPUTY PRESIDENT: Because there is one way there is one way of making it work and I m not sure which is that people get told what their scores are. And if they ve had an adverse assessment, they get told that you got marked down on this because, your Honour, you were always late for work, or whatever it might be, or you ve got a poor attitude to teamwork. Which if they get told those things and then that gives them an opportunity to say, Hang on, I ve never been told that before , or indeed, to cop it, or not. But you know, at least they have a chance to actually that s one way of potentially ensuring compliance with it.
PN2671
MR WILLIAMS: Yes. Your Honour, I understand the attraction of the position you put, but I will say this about it. There is this is not a performance selection process. People are not being made redundant because they have failed or they ve performed poorly.
PN2672
THE SENIOR DEPUTY PRESIDENT: No, but well no, you have to make a certain number of people, you say, and I m not really quibbling in a sense with this, that you have to make a certain number of people redundant. Who gets chosen is a performance, in the broad sense of the term, process.
PN2673
MR WILLIAMS: What I m suggesting, your Honour, that it s quite this is a ranking process.
PN2674
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2675
MR WILLIAMS: Someone comes last in the 100 metre final at the Olympic Games- - -
PN2676
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2677
MR WILLIAMS: - - -that doesn't mean they re not a good runner. So it is conceivable, and I don't know I haven't seen the ratings but it is conceivable that that ranking may be put together with nobody suffering a materially adverse finding on any level.
PN2678
THE SENIOR DEPUTY PRESIDENT: It may well just be based on seniority, I think.
PN2679
MR WILLIAMS: Well, then it would be- - -
PN2680
THE SENIOR DEPUTY PRESIDENT: Well, it doesn't quite work that way.
PN2681
MR WILLIAMS: No, it wouldn't be based on seniority, your Honour, it would be based- - -
PN2682
THE SENIOR DEPUTY PRESIDENT: I think there s an assumption that there will be a that there will be a ladder, because otherwise the process can t work basically.
PN2683
MR WILLIAMS: No, there ll be a ranking, your Honour, but- - -
PN2684
THE SENIOR DEPUTY PRESIDENT: Everyone s not going to get 100 per cent.
PN2685
MR WILLIAMS: No, they re not going to get 100 per cent, your Honour, but- - -
PN2686
THE SENIOR DEPUTY PRESIDENT: Some people are going to get adverse assessments made against them.
PN2687
MR WILLIAMS: Well, not- - -
PN2688
THE SENIOR DEPUTY PRESIDENT: I think I could guarantee it.
PN2689
MR WILLIAMS: Well, I m not suggesting it s not likely, but it s not necessary. A materially adverse if we take the one to five rating scale, which is- - -
PN2690
THE SENIOR DEPUTY PRESIDENT: So what s a materially adverse assessment on the one to five scale?
PN2691
MR WILLIAMS: Probably a one.
PN2692
THE SENIOR DEPUTY PRESIDENT: Is it? Is there anything less than five?
PN2693
MR WILLIAMS: No, your Honour, but- - -
PN2694
THE SENIOR DEPUTY PRESIDENT: Materially, I presume you mean, so argue this with me, but materially presumably means has an effect, wouldn't you agree? If something s if it s just academic, then it s not material. Draw the distinction between material material means not academic. An action would have a consequence. If you can get rated less than five, it s material.
PN2695
MR WILLIAMS: It doesn't mean no, not material, it s not material to the ranking process, not at all. It s subsection (c):
PN2696
To the extent that performance and/or attitude are utilised as selection criteria, the company must not make a materially adverse assessment of an employee against either or both of those criteria as an individual as distinct from assessment as part of a group unless the employee has been informed.
PN2697
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2698
MR WILLIAMS: So it s not about whether it has an impact in the ranking process, it s about whether they are personally judged, or there are personally materially adverse assessment is made.
PN2699
THE SENIOR DEPUTY PRESIDENT: So what do you say it means?
PN2700
MR WILLIAMS: Well, your Honour, I say this. I say five is excellent, and it s not written down anywhere, so this is a submission.
PN2701
THE SENIOR DEPUTY PRESIDENT: No.
PN2702
MR WILLIAMS: A five is somebody who is excellent. A four is somebody who exceeds expectations. A three is someone who s meeting requirements. A two is somebody who needs improvement and a one is somebody who is failing.
PN2703
THE SENIOR DEPUTY PRESIDENT: Okay.
PN2704
MR WILLIAMS: So in that situation, you might say that a two is an adverse mark and a one is a materially adverse mark.
PN2705
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2706
MR WILLIAMS: But I can see an argument that either a one or two could be a materially adverse assessment.
PN2707
THE SENIOR DEPUTY PRESIDENT: Yes, okay.
PN2708
MR WILLIAMS: But I don t see any argument that anything above a one or a two would be.
PN2709
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2710
MR WILLIAMS: So- - -
PN2711
THE SENIOR DEPUTY PRESIDENT: It is a five point ranking scale, that is the- - -
PN2712
MR WILLIAMS: It is exactly that. It is exactly that.
PN2713
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2714
MR WILLIAMS: And so, your Honour, I think it comes down to this. I think it would be unfortunate if my client s process, particularly its timetable for the reasons I ve expressed, was delayed because of a concern based on 2013 or based on Mr Moran s evidence about training, a concern as opposed to a reality, that there was anything non‑compliant with this enterprise agreement that was about to take place. I would have thought, and I appreciate what Mr Moran said, but I would have thought that it must be axiomatic that this company would understand its obligations under the enterprise agreement. Mr Schuller - - -
PN2715
THE SENIOR DEPUTY PRESIDENT: You d hope so. You d hope say, I must say that.
PN2716
MR WILLIAMS: Mr Schuller expressed remorse, almost grief, that a process had gone so badly wrong. So Mr Carter wasn't asked about it, Mr Moran gave the evidence he did, but it would be absurd to suggest that this company is not acutely aware, and particularly given the I ve used the word ferocity again. The ferocity with which the CFMEU has pursued this matter and still the 2013 matter.
PN2717
So your Honour, it seems to me that the right that given that, in my submission, if you accept it, it s not a matter in dispute between the parties, it s rather a concern about future compliance and therefore it s not within not in your purview, you may accept that. Or you may accept that there s an element of the dispute before you which means you can give attention to it. But if you do, your Honour, my suggestion is this, and I did this evidence is before you there has been a midyear performance review and in fact, the company s initial proposal was that the mid-year performance review be used as the rating system. If that had been the case- - -
PN2718
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2719
MR WILLIAMS: - - -there wouldn't be a concern because the mid-year performance review would be documented.
PN2720
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2721
MR WILLIAMS: The conversation would be documented. We d be in a much- - -
PN2722
THE SENIOR DEPUTY PRESIDENT: But that s not being used.
PN2723
MR WILLIAMS: It s not being used because the CFMEU asked for it not to be.
PN2724
THE SENIOR DEPUTY PRESIDENT: Okay.
PN2725
MR WILLIAMS: And they also asked- - -
PN2726
THE SENIOR DEPUTY PRESIDENT: So it doesn't really help. I say it doesn't help.
PN2727
MR WILLIAMS: Well- - -
PN2728
THE SENIOR DEPUTY PRESIDENT: Maybe they should have the company should have stuck to its guns, I don't know.
PN2729
MR WILLIAMS: It does help it does help, your Honour, because it reflects the company position that it wants to proceed on the basis of the most objective evidence it can have and the mid-year performance review is that evidence.
PN2730
THE SENIOR DEPUTY PRESIDENT: So why didn t they agree to the mid-year performance review, can you is there evidence about it?
PN2731
MR WILLIAMS: Well, the CFMEU didn't agree to it and the company accepted the CFMEU's position.
PN2732
THE SENIOR DEPUTY PRESIDENT: Okay.
PN2733
MR WILLIAMS: But the company's proposal was for the mid‑year performance assessments to be used and that it would be simple. You'd have a rating system clearly documented, a conversation would have just taken place, there would be a record of it and no concern would arise. Now as you say, perhaps my client should have stuck to its guns but it went into a consultation process with the CFMEU, and it's obvious they did so in good faith with a view to changing its position where it was reasonable. The CFMEU have a different position. The CFMEU has a strong position that supervisors should be involved and, so be it, they will be involved. It complicates this process further because of that. That's the CFMEU's request. My client has agreed to it.
PN2734
THE SENIOR DEPUTY PRESIDENT: Okay.
PN2735
MR WILLIAMS: But my client's primary position was that the objective evidence should be used. So this would be my advice - I won't say one way or another whether it has been my advice - that Mr Carter and Mr Moran will get a rankings and of course it would be inappropriate for them to manipulate those ratings or to change them at all. But they will be immediately able to tell whether somebody has been materially adversely affected on the few criteria, because there aren't many which are really about performance and attitude.
PN2736
They're mostly about skills and experience but some of them are about performance and attitude. They will be able to immediately able to ascertain whether somebody has been ranked adversely, and it would be more acute of course if it has happened to an employee who has been selected for redundancy; and they will be able to go to the mid‑year performance reviews and ascertain whether or not those issues or issues related to that criteria have been discussed with the employee. And if they haven't then they will be able to adjust that rating at least to a three, and it couldn't be surely any concern about a rating being improved for a particular employee. They could do that.
PN2737
I'm not suggesting that they're required to do it but that surely is a better way of meeting the fairness and the objectives of the parties, which are somewhat mutual in terms of timing at least, without putting in place with my client the kind of obstacles suggested by the CFMEU. Let me just explain why in my written submissions, in my first written submissions your Honour, I described that process as diabolical and potentially disastrous. What my learned friend on behalf of his client is suggesting is that employees should be given ratings, and there are different views about whether in a redundancy process there should be much discussion at all about the rating process because that can be humiliating for employees.
PN2738
THE SENIOR DEPUTY PRESIDENT: You'd have a hell of a time - because I know there's a view by some companies that it's better not to tell people why they were chosen. I think all the evidence - just so you know my view on this - all the research shows that is completely ill-founded.
PN2739
MR WILLIAMS: I'm not going to try to persuade you to the contrary.
PN2740
THE SENIOR DEPUTY PRESIDENT: No. This is something I've actually examined in quite a lot of depth.
PN2741
MR WILLIAMS: Yes, well I'm certainly not going to persuade you to the contrary. But it should not be a process where the employee is told, "You know, you're our worst or our second or third-worst employee and therefore you've got to go". That would be destructive. It would be a destructive way for the employee to leave the organisation, so there has got to be some balance about it. So what Mr Docking on instructions would have you do is that any employee - because let's be clear about this, subparagraph (e) is not limited to employees who have been selected for redundancy.
PN2742
He would read it, he would have to read it, "If any individual has a dispute about their ratings" then the process could apply. So we shouldn't be confident that it's only going to be a handful of employees. But let's assume that one employee who's just below the line comes forward and is allowed to appeal the ratings. It's not just the adverse ratings which could be reviewed. The clause doesn t say that. So that employee might say, "Well I've got a two for this and I think I should be a four. But I've got a four for this and I think I should be a five".
PN2743
So how does that play out given that the disputes resolution procedure would find its way here at some point? Does that mean that my client and the Commission would have to have an endless Tribunal where supervisors, one after the other, were called to justify their ratings, are cross‑examined, some adjusted from four to five, then you see how that - then you do the rankings again? But of course if that has changed the order and somebody else is now selected for redundancy, obviously they would have a right to appeal and then that employee comes forward.
PN2744
Let's assume there's a change and another employee entirely might be selected. That process would never end. It would pit one employee against another and it would be utterly destructive of morale and relationships on the site, and at the end of the day the same number of employees would leave, goodness knows when. That would be a process which would be both diabolical and potentially disastrous, and you cannot confine or break down the process in any way which would have a different result. Every employee would have the same right. Every employee could contest every rating.
PN2745
Every supervisor and every coordinator and every manager might be required to justify their ratings. That's not what this dispute procedure is about. This dispute procedure as it says in plain terms in subparagraph (e) allows a dispute about the process itself, and that's what we've got now before you. It does not and could never have been intended to set up a kind of individual appeal tribunal right which is eventually resolvable here. That would be just unthinkable, and if you go back to the principles Mr Docking has referred to, the Kucks principle that you restrain from absurd result - not absurd results, that's not quite the language that was used, but unfair results.
PN2746
That would certainly be unfair and Amcor was to similar effect. But you don't need to be driven to fine points of analysis or fine points of interpretation, rather, because subparagraph (e) says exactly what it says, a dispute about a selection process. Not a selection outcome. Not a selection decision. So your Honour, as much as it may be intellectually attractive to consider that as a proposal because, for better or for worse, the parties have agreed that there be a merit selection process, it just would not work.
PN2747
What I propose, which is that managers take the steps that a prudent manager would take and ensure that there has been compliance with the enterprise agreement in relation to people who have been materially adversely rated, that's all that this process should require, and my client can do that. It has the documents, it has the evidence, it has the time to do that before the 9th and 10 July. But we resist - because as much as there is some superficial attraction to it, your Honour we resist the idea that employees individually should otherwise have the right to contest their ratings. Because what we are producing here is a ranking, and the process could never end. Your Honour, are you happy for me to go on to another topic?
PN2748
THE SENIOR DEPUTY PRESIDENT: Yes, okay.
PN2749
MR WILLIAMS: Your Honour, the issue of contractors, and you asked Mr Docking early in the piece whether he would make a submission to you about what the points of dispute were. We've done that in paragraph 8 of our written submissions and we agree, although it's not entirely straightforward from the text of what appears to be two different consultation clauses, misnumbered is how - we agree that we really must be - in terms of the redundancy process we're looking at clause 38.
PN2750
THE SENIOR DEPUTY PRESIDENT: Yes. I mean that's the thing, does clause 37 have any application?
PN2751
MR WILLIAMS: Your Honour, I think the true position is this that in relation to the change in operations from one shift or from four shifts down to two shifts, that may have engaged clause 37 or at least if it didn't involve redundancies it possibly would have engaged clause 37.
PN2752
THE SENIOR DEPUTY PRESIDENT: Yes, but it does, doesn't it? That's the trouble.
PN2753
MR WILLIAMS: If there had been a discussion about a proposal by the company or a suggestion by the company to move to a different roster system, that certainly would, but the evidence is that that's not being pursued. But once you get to a discussion about redundancy the contention appears to be that that's exclusively to be dealt with under clause 38, and clause 38 is a very straightforward consultation process:
PN2754
The parties must consult about the proposed terminations. Measures to avoid or minimise the termination. Measures to mitigate any adverse effects of any termination on the employees concerned.
PN2755
Pretty straightforward. It could not be said that my client hasn't complied with the obligation to consult in relation to those matters and I've made the submission in writing, and I make it here that if there were some aspects of the change process which require consultation under clause 37 then my client has complied with those obligations as well. The chronology annexed to Mr Moran's statement reflects a highly comprehensive consultation process where requests for information were made and they were responded to, where meetings were scheduled, five of them, where Mr Carter the most senior person at the mine attended each one of them with his human resources superintendent - and your Honour, I didn't mean to call Mr Moran junior.
PN2756
But what I meant to say was that there would be matters of operational decision making and financial decision making which would be beyond his purview as he stated. But he certainly is Mr Carter's human resources support person. They each attended every meeting and no doubt there were other things that both of them could have been doing at the time. The first meeting was scheduled for three hours, the other meetings by the minutes themselves - I'm not sure if times were recorded but they were lengthy. All of the issues which are before you were discussed and discussed at length. Proposals were exchanged.
PN2757
Mr Ludlow and Mr Brodsky - and I will say something about Mr Ludlow and Mr Brodsky as witnesses. They were utterly straightforward. Mr Ludlow and I parted company on one issue and that was after the organisation had appeared to adopt a litigation or a dispute strategy rather than a consultation strategy, and you remember the evidence, your Honour. On the 21st the CFMEU signed a dispute notification. On the 22nd it appears that the industry safety and health representative was flooded with numerous complaints. My client maintains that that was in part a contrivance or at least someone encouraged those employees to do so on that day for effect.
PN2758
So Mr Ludlow and I did not agree about that, but apart from that I found Mr Ludlow to be entirely straightforward. He accepted that in the consultation process he had had opportunities to put forward proposals about all of the things that are before you; contractors, selection criteria. He accepted that in relation to the use of contractors that he was happy with some of the outcomes, for example the outcome that supplementary labour would be removed from the NGC crews. He expressed some doubt or concern that the future might - things might change in the future but so be it. Mr Ludlow is no doubt vigilant for those sorts of things.
PN2759
But he accepted and fairly accepted that if the proposal was implemented in the way proposed it would be in some ways a good outcome for his members or the CFMEU's members. He accepted that in relation to the company's acceptance during the consultation process that it would reduce the number of head count to be reduced. So Mr Ludlow, in my submission, supported the submission that we make that the consultation was a complaint one, and Mr Brodsky did the same.
PN2760
Mr Brodsky similarly accepted the propositions I put to him about the effectiveness of the process, the company's responsiveness, and the CFMEU's ability in relation to some matters to influence the outcome of the proposal. It is only with respect to Mr Docking and his instructor, it was only on 21 June or slightly before it when the - I think it was the 18th or 19th the correspondence got more formal, it got more aggressive and the CFMEU moved the process into the Fair Work Commission. But that approach or that, you know, I think quite positive engagement between the company and the union broke down.
PN2761
MR DOCKING: Are you inferring I was involved in 21 June? I knew nothing about that.
PN2762
MR WILLIAMS: I'm not at all. Not at all.
PN2763
Getting back to contractors, your Honour, the first dispute notification did not refer to clause 36, which is the contractor clause. The second one did. The consultation was comprehensive in relation to contractors and that's all, in our submission, that's required by the enterprise agreement in clause 38.3. My client did consult in relation to the removal of contractors. It did agree to remove contractors and in many respects Mr Ludlow accepts that the result was a reasonable one.
PN2764
It is unavailable on the facts before you to suggest that there is a genuine dispute about the company's antecedent compliance with clause 36. Your Honour, in relation to selection criteria, which is one of the matters we identify as being in dispute, that s a matter which has to be resolved clearly enough by reference to the enterprise agreement, and we've already had much discussion about this. The relevant clause is 38.5(a) or the first of the relevant clauses and it reads that:
PN2765
Subject to (b) and (c)
PN2766
which are broadly about seniority and natural justice:
PN2767
the company will select employees for involuntary redundancy on reverse merit.
PN2768
So it is for the company plainly enough to do the selection process although in this case it has agreed to give weight to the supervisor ratings:
PN2769
Utilising selection criteria reasonably chosen by the company.
PN2770
So it's for the company to choose the selection criteria. That is not to say of course that the matter can't properly be the subject of consultation, and it was. But it's for the company to choose and it can do so based on its business needs and they can include:
PN2771
...an employee's skills, competencies, experience and aptitudes...
PN2772
And it's specifically stated:
PN2773
To remove doubt, performance, attitude, absenteeism record and disciplinary history can also be used as selection criteria.
PN2774
My client had proposed using the same rating system that it uses to rate performance, but we've been there. Eventually it moved past that and there was an agreement to use a rating process substantially in accordance with the 2013 process, and that was at the CFMEU's request. So there was then a consultation about that. The CFMEU - and we've set this out in the chronology in the written submissions - said that they would provide the criteria that they wanted to use and the company said it would consider it. Mr Ludlow did say - and the criteria which Mr Ludlow sent through was substantially the same was it not - - -
PN2775
THE SENIOR DEPUTY PRESIDENT: What seems to have been the difference - and tell me if I've got this wrong.
PN2776
MR WILLIAMS: Yes.
PN2777
THE SENIOR DEPUTY PRESIDENT: Is that they actually weren't really arguing about the criteria per se. It was more that the way the union proposed that it be dealt with is it was more - so obviously the company is proposing this one to five points scoring system and then you add them all together.
PN2778
MR WILLIAMS: Yes.
PN2779
THE SENIOR DEPUTY PRESIDENT: And then for the kind of people who are close to the line you then have these extra points based on seniority.
PN2780
MR WILLIAMS: Seniority, yes.
PN2781
THE SENIOR DEPUTY PRESIDENT: Whereas what the union is proposing is that you have the same criteria, I think, or pretty much the same criteria but you either get a tick or a cross. In other words you either meet the criteria or you don't. It's not a point - I might have misunderstood, but I don't think I did. It's not a points scoring system. You know, if you meet all the criteria as in you get a tick against all of them - - -
PN2782
MR WILLIAMS: Yes, I didn't pick that up. I understood that - - -
PN2783
THE SENIOR DEPUTY PRESIDENT: Maybe I got it wrong, but then if you didn't meet them all - I'm trying to think how the seniority - they had a different approach to the way seniority fitted in. Because I thought it wasn't like you get - they could have just said "Well, it's just another criteria and you get a number of points for it".
PN2784
MR WILLIAMS: My understanding of the evidence is that there were two matters which were not agreed. There was agreement - and Mr Brodsky accepted this, there was substantial agreement in relation to the criteria to be adopted.
PN2785
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2786
MR WILLIAMS: There were some differences. Mr Moran got onto the rocks on this issue because the company's final proposal has been - it has become known as NGC1 and NGC1 is a set of criteria which are modelled on the ones which were used - although apparently there's a contest about this - in 2013 and Mr Moran was asked evidence, was asked "Was NGC1 agreed?" and he said "Yes" and that wasn't quite right. NGC1 was not quite agreed. NGC1 followed almost virtually identically the 2013 process and it was the CFMEU which had said they wanted to follow the 2013 process.
PN2787
But the CFMEU had quite clearly said that they wanted to make a couple of changes to it and they sent through a version which was modified by reference to a couple of changes, and we've identified one or two of them in the written submissions. They weren't significant but they were changes. So the company's final proposal, having considered that, was it was what has become NGC1 and it was identical to the form which was in play in 2013 although it is contended that Mr Pawley back in 2013 also agreed to some modifications for that. That's not common ground between the parties but it's certainly contended. But in any event the CFMEU had suggested that the 2013 process be substantially repeated but it did suggest some changes to the criteria, and the company didn't accept those criteria and it proposed ones which were the - - -
PN2788
THE SENIOR DEPUTY PRESIDENT: But I thought it was also the way you scored people against the criteria that was - - -
PN2789
MR WILLIAMS: I didn't understand that to be the case.
PN2790
THE SENIOR DEPUTY PRESIDENT: I might have that wrong.
PN2791
MR WILLIAMS: I think there is a dispute, I believe, about whether part ratings could be used, half ratings.
PN2792
THE SENIOR DEPUTY PRESIDENT: Yes, I thought that was - - -
PN2793
MR WILLIAMS: I don't want to mislead anyone here. I could be wrong.
PN2794
THE SENIOR DEPUTY PRESIDENT: No half marks, yes.
PN2795
MR WILLIAMS: Yes, so the one to five was agreed as it had been in 2013.
PN2796
THE SENIOR DEPUTY PRESIDENT: So they weren't arguing you shouldn't use the scoring system. It was just you shouldn't use half marks.
PN2797
MR WILLIAMS: You shouldn't use half marks and the company hasn't agreed to that.
PN2798
THE SENIOR DEPUTY PRESIDENT: I wondered why that was - - -
PN2799
MR WILLIAMS: And so the company proposal was essentially identical to what it believes was the 2013 process. So there is a dispute about that but it's a very limited dispute, in my submission, and it's one which the company was entitled to resolve - or not resolve but to decide, to determine, on the basis of having listened carefully and properly to what the CFMEU said and then decided what it wanted to do, and it has done that. But there wasn't a huge amount of difference between the parties and I think Mr Brodsky accepted that. But that is a dispute which is before you - - -
PN2800
THE SENIOR DEPUTY PRESIDENT: I think that it was a significant dispute about seniority.
PN2801
MR WILLIAMS: Seniority there is a significant dispute because the CFMEU s proposal which was its preferred proposal in an email to Mr Moran which is on Mr Moran s statement was that the company essentially decide what skills and experience it needed and then work through the workforce in order of seniority and put people into those spots as they fitted into it until every spot was filled. In other words - - -
PN2802
THE SENIOR DEPUTY PRESIDENT: But you say what, not use the criteria at all?
PN2803
MR WILLIAMS: No. No, well except for the extent that the company - - -
PN2804
THE SENIOR DEPUTY PRESIDENT: Well they decided not to show how they can square those two decisions. That s what I d understood was the criteria were ones you just met. You either did meet them or you didn t meet them and then if you met them, then you were - - - Well, everybody who didn t meet them were knocked out and then if you d meet them, then it was based on - and you need more people based of seniority. That s how, I might have misunderstood, but that s what - - -
PN2805
MR WILLIAMS: I understand your Honour. Your Honour, you re correct. That was an alternative which the CFMEU preferred, and it worked a little bit like that, but as I understand it, you ve got an organisational structure. You went to your most senior person. You said has that person got the skills to fit into somewhere into that box that you put them in. If they didn t, then they got taken off the list. You went through until all your boxes were filled. In other words, a pure system based on seniority. And my client didn t accept that and he might have been very well advised not to because that might have had been a substantially unlawful way to proceed. But that I think, may be where your memory comes from.
PN2806
In my submission, what my client has proposed is a set of criteria which are demonstrably responsive to the sorts of criteria described in subparagraph (a) and it should simply be allowed to use them.
PN2807
We then come to seniority. This issue of seniority is a vexed issue your Honour, because there is no doubt that back in 2010 the Vice President arbitrated a clause which requires my client to give material weight to seniority. He didn t explain to my client, or to anybody else what he meant by material weight, and that s perhaps unfortunate.
PN2808
THE SENIOR DEPUTY PRESIDENT: What do you think it means?
PN2809
MR WILLIAMS: Well, your Honour, I can explain my client s proposal in relation to it.
PN2810
THE SENIOR DEPUTY PRESIDENT: I think I understand your proposal, but I m just interested in whether you got abused of what material they claim. What does it mean? It must be more than weight, material weight. I think I mentioned this before, what I think material weight means. It means not just a weight in an academic sense, but a weight that might actually make a difference.
PN2811
MR WILLIAMS: Could make a difference. I agree with that.
PN2812
THE SENIOR DEPUTY PRESIDENT: That s what I think it means.
PN2813
MR WILLIAMS: The consultation proceeded on the basis of my client s proposal that what it meant was that it should be a tie breaker. But that s not right. Mr Ludlow pointed out correctly in the consultation that it means more than that. And he did say by reference to the Vice President s reasons. The Vice President himself said that he thought it should be more than a tie breaker.
PN2814
THE SENIOR DEPUTY PRESIDENT: Someone could be below somebody else, but leap over them based on seniority.
PN2815
MR WILLIAMS: Somebody could do that and we made a proposal which could lead to that result. We are very reluctant, your Honour, to take the position much further. If you thought that was inconsistent with the Vice President s clause, then of course, my client will comply with whatever you say. But, this is my client s concern. Any system based on seniority, particularly if it has the potential consequences of somebody who is disadvantaged by it, may believe that they have been adversely treated, indirectly on the basis of their age. This is by no means an academic concern. Seniority has been removed as a criteria from most modern awards, if not all modern awards, specifically as a consequence of this concern.
PN2816
THE SENIOR DEPUTY PRESIDENT: I think I m going to focus on you now. You need to comply with the agreement and not start to get into arguments about compliance and anti-discrimination legislation. Very interesting.
PN2817
MR WILLIAMS: Well, your Honour, we intend to, but if it is a discriminatory term, then it s unlawful and therefore objectionable and it has no force and effect. There is a risk, a genuine risk, my client wants to comply but it wants to act lawfully. If an employee, for example, who is a highly experienced miner, has spent 38 years of his mining career at a BMA mine, comes to NGC and is there for six months, and is one of the best performers in the mine, but then he s selected but gets no points for seniority and is dismissed as a result, would have every reason to feel unfairly treated. In that case, perhaps not unlawfully treated.
PN2818
THE SENIOR DEPUTY PRESIDENT: That s not a regular example, actually. The real example would be somebody who is brilliant at their job but is young and therefore has limited seniority - - -
PN2819
MR WILLIAMS: That s my next example.
PN2820
To somebody who is not very good at their job, but has been there a long while and therefore effectively is much older.
PN2821
MR WILLIAMS: I agree.
PN2822
THE SENIOR DEPUTY PRESIDENT: But they would argue it was age based discrimination, but no one was actually - this is what would be indirect discrimination. No one has yet made a ruling on that. There s been an issue about direct discrimination where you ve got a clause that says if you re 65 basically, you don t get paid redundancy pay. That s a much more black and white issue.
PN2823
MR WILLIAMS: It is more black and white.
PN2824
THE SENIOR DEPUTY PRESIDENT: This is yet to be really seriously argued. One day it will be.
PN2825
MR WILLIAMS: I ve seen the argument made and the matters which were resolved carefully, behind the scenes.
PN2826
Your Honour, the example you just gave is the right one. A 25 year old is the best miner in the place and has been there after he got out of mining school or whatever and he s only been there for a year. He s made redundant when he can plainly see, that his objective qualification are no better than somebody else who is - - -
PN2827
THE SENIOR DEPUTY PRESIDENT: I m not going to make this - this case is not going to - I m not going to deal with that issue.
PN2828
MR WILLIAMS: No, your Honour, you won t have to, but my client might have to. Therefore, what my client has done is it s attempted to balance the requirement of the clause to give it material weight. My client s proposal could lead to changes. It would lead to a situation where if somebody was within five positions below the line, one of the top five selected for redundancy, may well change places with somebody who is fortunate enough at that time to be within the first five above the line. That s what we think material weight means.
PN2829
His Honour was very careful, and if you ve read his reasons you ll know this, he was very careful to say that seniority should not be a primary criteria.
PN2830
THE SENIOR DEPUTY PRESIDENT: It should mainly be merit based, that s what he s saying.
PN2831
MR WILLIAMS: Should mainly be merit based. So, if a situation arises where seniority overwhelms merit, other than around the margin, then we think we would be acting not only potentially unlawfully, but also not consistently with his Honour s call in the agreement.
PN2832
We ve made our proposal about that. That is a matter which is absolutely not agreed between the parties, but it has been subject to consultation. At the end of the day, my client is the one who has the obligation to comply with the enterprise agreement. It does not have to reach agreement on anything, although the facts reveal that it reached agreement on many things.
PN2833
I ve made my submissions about timing. Your Honour, I ve - I ll just see if there s anything I need to respond to, that I haven t responded to.
PN2834
THE SENIOR DEPUTY PRESIDENT: Done (d) to death, and (e).
PN2835
MR WILLIAMS: I think we have. I think my list might be complete your Honour. We ask of course, as we would, that you endorse the proposal that we ve made. We want to make it in clear terms. We re still litigating apparently about an outcome two years ago, so we want there to be clarity this time, and that s why we ve provided our proposal in writing.
PN2836
THE SENIOR DEPUTY PRESIDENT: Okay, thank you.
PN2837
MR WILLIAMS: In relation to the weightings - I m sorry, there is one matter in relation to how we weight seniority. In our first written submission we ve proposed a little table of what s a one point, what s a two point, what s a three point, what s a four point, what s a five point in respect of seniority. That s in our written submission. The union has been consulted about that, but I would certainly suggest don t agree to it.
PN2838
The clause doesn t say how you - it says that seniority has to be given material weight, but it doesn t say that up to two years has to be given a one. It doesn t do that.
PN2839
THE SENIOR DEPUTY PRESIDENT: Yes, yes I understand.
PN2840
MR WILLIAMS: We ve made our proposal. We think it complies. If your Honour has questions for me, I ll stay on my feet, but if not.
PN2841
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN2842
MR WILLIAMS: I m sorry your Honour, I think have made the submission.
PN2843
THE SENIOR DEPUTY PRESIDENT: I ve got your written submissions.
PN2844
MR WILLIAMS: You do have my written submissions. I do wish to emphasise a submission I made right out the outset that matters of timing and completion of this process.
PN2845
THE SENIOR DEPUTY PRESIDENT: Yes, I should actually ask you about this. I mean obviously I will, as I said before, I appreciate the potential significance of delay of being involved, not just the company, but employees. It s not the only consideration, there are other considerations obviously, but I am conscious of those and as a consequence I will do my best to produce a decision in a short time frame, but I also have to write it properly and consider all the submissions that have been made and all the evidence and there s quite a lot.
PN2846
It would be wrong to - I can t guarantee that I ll have a decision by the 9 or 10 July. I m not saying I won t have a decision by then, but I can t guarantee it. I guess what I m looking for is an undertaking that you will not, if you like, pre-empt my decision, by making people involuntarily redundant before I ve issued my decision.
PN2847
MR WILLIAMS: Your Honour, I don t even need to seek an instruction to give that undertaking. Of course that s a position.
PN2848
THE SENIOR DEPUTY PRESIDENT: Otherwise, I d just make an order to that effect.
PN2849
MR WILLIAMS: I understand you would, and you d be right to make the order.
PN2850
THE SENIOR DEPUTY PRESIDENT: Yes, okay. But I m not saying I won t have a decision by then, but I am certainly not guaranteeing it.
PN2851
MR WILLIAMS: I understand that your Honour. We will respect that too.
PN2852
THE SENIOR DEPUTY PRESIDENT: I don t think it s a problem with the - and this is what I asked before. I don t think it s a problem with the voluntary redundancies being notified and duly processed. You may have a practical issue.
PN2853
MR WILLIAMS: An enormous practical issue.
PN2854
THE SENIOR DEPUTY PRESIDENT: That s something you have to decide. Same with contractors. I don t think the union s going to have any problems with you letting contractors go early. There may be a practical issue for you in implementing change until you know the actual outcome of the decision, but that s with all due respect, up to you.
PN2855
MR WILLIAMS: It is our problem, your Honour, but let s be very clear about it, it doesn t help us for the union to say we ve let the voluntaries go, because that would result in an entirely different operating structure to the one that we ve proposed. It couldn t be done, and similarly with the contractors, so I think it s all at the same time, thanking the union for its concession, but it s no use to us.
PN2856
THE SENIOR DEPUTY PRESIDENT: Yes, right.
PN2857
MR WILLIAMS: In relation to timing, your Honour, of course we re in your hands. We accept that the matter s got to be dealt with properly.
PN2858
THE SENIOR DEPUTY PRESIDENT: It won t take three months.
PN2859
MR WILLIAMS: Your Honour, these issues of timing, we ve made submissions about it and Mr Docking scoffs at it. He says that they re not legally binding, they re just self-imposed deadlines. Well, they may be, your Honour, but they re very important to my client and they ought to be respected to the extent possible. And I don t mean that as a submission to you.
PN2860
THE SENIOR DEPUTY PRESIDENT: No, I also think for the employees concerned, but knowing one way or the other what the process is going to be. If there s going to be changes, what there s going to be and it s going to be in their interests for me to issue a decision quickly, as long as its properly done. So I ll do my best. Okay.
PN2861
MR WILLIAMS: Thank you.
PN2862
MR DOCKING: Thank you Senior Deputy President. Can I deal with the last point that said I scoff at the timeline. I take a conservative approach. I look for evidence and I made it clear, it s been said for decades including in the High Court in Tribunals like this, if there s dispute, you cannot give evidence from the bar table.
PN2863
The company has chosen not to lead any evidence about these self-imposed - - -
PN2864
THE SENIOR DEPUTY PRESIDENT: I m not basing my - I think that it s in the interests of - I form my own view, based as much as anything else on my knowledge of workplace relations that it is in the interests of everyone I need to issue.
PN2865
Compared to some of the other decisions I ve got to write, if I could put it that way, I will give this one first priority because these types of situations, it s not just the company s interest, it s in the employees interest to know what s happening, sooner rather than later. All I m saying is I will do my best to do this quickly, but I made it clear that I m not bound by the 9 and 10 July, I m not giving it any particular weight I suppose. I take your point, one way or the other, but these things are always better done - not saying the process needs to be done quickly, the decision needs to be done quickly.
PN2866
MR DOCKING: I think there was the oral submissions I ll deal with to begin with. It was suggested that the proposed order 9 applied to every employee. Can I take the Commission to the opening words, it s the outline filed last Friday, attachment A, should be the last page which has order 9 to the opening words.
PN2867
THE SENIOR DEPUTY PRESIDENT: Yes, An employee has been selected for involuntary redundancy .
PN2868
MR DOCKING: There are two triggers. You have to be selected and then you have to elect to put that in dispute. It was incorrect on one s feet to suggest that it was intended or drafted to apply to every employee.
PN2869
MR WILLIAMS: I was referring to the clause, not the order.
PN2870
MR DOCKING: Okay. All that clarifies is a matter that the CFMEU is quite confined. And quite apart from 38.5(e), if I take the Commission to clause 41.1, a copy of that for example, is attached to the 21 June dispute settlement procedure. If the Commission looks at the opening words, In the event of any dispute arising as to the interpretation or application of this agreement .
PN2871
THE SENIOR DEPUTY PRESIDENT: You can lodge a dispute anyway. There s an argument that you could lodge a dispute irrespective of whether I hand down a specific procedure.
PN2872
MR DOCKING: Without having clause 38.5(e).
PN2873
THE SENIOR DEPUTY PRESIDENT: Well, that s right. Because there s a dispute about the - arguably yes I guess there is an argument you could lodge a dispute, if you think that it hasn t been properly complied with, you can lodge a dispute. There might be a jurisdictional issue if you ve already been put out the door.
PN2874
MR DOCKING: The former employee argument. Before Lewin C, so far it s gone forward that if you did it before you were terminated, you could challenge the process under section 38.5. It might just apply. Whether you get there under clause 38.5(e) or alternatively, or in addition under clause 41.1, clause 38.5, when it talks about a selection process, quite clearly the earlier paragraphs are dealing with formulating the criteria for how they will be applied. It makes no sense.
PN2875
THE SENIOR DEPUTY PRESIDENT: If that s the case, why do you need them? Why do you need any, because you can just rely on the - well, arguably you can just rely on the 41.1 it s a dispute about the application of the agreement.
PN2876
MR DOCKING: Unsuccessfully before Lewin C, it was argued that even a former employee could bring a dispute because 38.5(e) was an additional benefit in addition to the dispute settlement procedure which is now numbered clause 41.
PN2877
THE SENIOR DEPUTY PRESIDENT: But, (e) s not going to allow - I mean there s this jurisdictional argument and the Full Bench, up till now anyway, has upheld correctly that once - if you lodge a dispute while you are still an employee, then the dispute remains on foot, even though you might have subsequently left employment. But you can t lodge a dispute after you ve left employment. So once your employment has ceased, you can t lodge a dispute. I m not saying that s right or wrong, I think it s an arguable position to be honest, I think it s actually clear. But that s kind of the general view.
PN2878
MR DOCKING: It is, and in any event, as Mr Ludlow sets out in his statement at exhibit CFMEU5, he brings this dispute in part. He was one, if you look at paragraph 16, he was involved in formulating the orders sought, that became attachment A, filed and served 26 June 2015. He sets out the reasons why he supports making the orders and it includes the various matters at his paragraph 17 including paragraph (g). I am a representative of the 97 to 98 percent of the permanent employees of the company employed at the mine.
PN2879
It is simply incorrect as it s generically been attempted in oral submissions to suggest that there s agreement with Mr Ludlow as to the lodge President, or as the clause 40 enterprise agreement accredited representative. Clause 40, if you re a member of the lodge and notified as such, and there s no dispute this applies to Mr Ludlow, you become an accredited employee representative under the enterprise agreement.
PN2880
The same applies suggesting Mr Brodsky agreed to various matters. I ll return to some of these when I go to the respondent s written submissions, because it fails to look at, for example, their re-examination or other documents that are even in Mr Moran s evidence.
PN2881
This idea that you, as the private arbitrator have an absolute discretion, I would invite the Commission to reject that.
PN2882
THE SENIOR DEPUTY PRESIDENT: Don t worry, I already did.
PN2883
MR DOCKING: One example, is a failure to accord procedural fairness which would apply here if submissions disputed from the bar table were accepted or the Commission acted on a submission which is contrary to the only evidence. For example, Mr Ludlow is the only one who has given uncontested evidence in detail about what s happened from July, August 2013 to the current, about disputing contractors. It s not new. The company s known about it. It s no answer to say the company has not given Mr Carter or Mr Moran a copy of the statements or told them anything about them being the three statements filed before Lewin C.
PN2884
The Commission accepted to Mr Williams, perhaps it would be an enormous head in the sand. Another way, perhaps a legal way of describing it is, wilful blindness. That s an abstention from making an enquiry when it s known matters exist. Either description satisfies.
PN2885
It was suggested that Mr Ludlow had specifically agreed to the criteria because there was agreement about using 50:50 from Asbury DP. One only needs to look at the annexures to Mr Moran to know that that s an incorrect understanding. If you go to SM5, page 22 of Mr Moran, it s an email from Mr Ludlow to Mr Scott, copied to Mr Carter, Mr Elliott, Furdy Kruger and Chris Brodsky.
PN2886
It s headed - there s a typographical error, which we all make - Ashbury decision for redundancy process. It s obviously Asbury DP that s being referred to. Hi Scott, yourself and Mike stated today that you would be referring to Deputy President Commissioner Ashbury s decision from the last redundancy process throughout this redundancy process. Could you please tell me the date of the decision that you will be referring to? Thank you.
PN2887
Mr Ludlow was asking for them to identify what was being referred to because at no stage did Asbury DP, before 9 June 2015, issue some decision saying that there should be 50:50 manager versus supervisors. Rather, that was one of the complaints that was made and continues to be made that the company applied an 80:20 percent weighting after agreeing that supervisors should be involved.
PN2888
It s a little bit hard to suggest Mr Ludlow agreed to something which never existed, namely the complete lack of understanding of Mr Carter and Mr Moran about what happened in August 2013. Further, where their misunderstanding is shown by their mistaken reference to what was in a decision which does not exist.
PN2889
Insofar as what Asbury DP did recommend, a copy of that is contained within one of Mr Ludlow s statements, namely exhibit CFMEU4. It is LL10 commencing at pages 127 right through to 131. It s important to go to exhibit CFMEU4 while I m referring to it for another context. I ll do this out of order. In skimming the written submission of the respondent, it suggested Mr Brodsky agreed that contractors were not involved in the 8 August 2013 conciliation process leading to a printed document issued 9 August 2013 .
PN2890
What the respondent failed in its submissions orally and in writing to refer to is the re-examination of Mr Brodsky after he was quickly shown the recommendations and associated documents in cross-examination. He was shown them in re-examination and his attention was drawn to exhibit CFMEU4, page 127, paragraph 4 near the bottom where it sets out the Commission recommends that.
PN2891
The second recommendation, the first dot point of it is expressly details of contractors who will remain following the redundancies. It had been a bit unfair to Mr Brodsky to put a proposition to him in cross-examination which was directly inconsistent with what s in recommendation to first dot point.
PN2892
However, it was clarified in re-examination that a contractor was always expressly part of it. Mr Ludlow s dealt with this in that statement, exhibit CFMEU4 and also CFMEU5. But whilst looking at this document, for the first time today, Mr Williams has tried to suggest that in dispute that the selection criteria had been agreed back I can tell the Commission on 30 July 2013 and confirmed there was such an agreement before Asbury DP on 8 August 2013.
PN2893
Why I can make that submission is Mr Ludlow is the only one who has given the evidence and he actually attaches the company s own minutes for 30 July 2013 but he also attaches if I go to page 129, still part of LL10 the agreed timeframe for redundancy process and consultation, in fact, Thursday 8 August 2013, has the opening entry,
PN2894
Workforce assessment to continue with revision based on the agreed selection criteria. Supervisors will be involved in the process.
PN2895
The next paragraph:
PN2896
The agreed process to be communicated to the workforce.
PN2897
It may be another day for Lewin C to address, if any contrary evidence is put on to Mr Ludlow s existing statement that the barrier is a mighty one for the respondent to get over the top of given the Commission has issued document twice records there were agreed selection criteria and the agreed process.
PN2898
It was also suggested in oral submissions, as I could best understand them, that there is no explanation of what one to five equals and I think Mr Williams suggested an interpretation. If one goes to the very last page, as one example, of Mr Moran s statement page 154 there s actually a blue coloured square shape in the right-hand side headed Rating Scale . It actually has the definitions of one through to five inclusive.
PN2899
One, is below requirement. Two, is develop in confidence. Three, is competent. And so on.
PN2900
MR WILLIAMS: I accept the correction, your Honour.
PN2901
MR DOCKING: I think that just underlines that there is a lot of evidence that both sides of the Bar table have had to try to deal with in a compressed timeframe. However, I do object to submissions from the Bar table that somehow the Commission, if it was as the private arbitrator, going to intervene make some orders or directions based on the use of the mid-year performance review.
PN2902
THE SENIOR DEPUTY PRESIDENT: Yes. What was the problem with mid-year performance review? Why was the union unhappy with using it?
PN2903
MR DOCKING: All I am instructed at this stage is there was a complete evidentiary case to put on and it s not been prepared and I do not have instructions about that because I thought - - -
PN2904
THE SENIOR DEPUTY PRESIDENT: Okay. If you don t know it wasn t in the evidence only if it s in the evidence but I m not asking you to give evidence now. But if there was evidence about it, if there s not then that s fine.
PN2905
MR DOCKING: Unfortunately, no. Other than it being mentioned.
PN2906
THE SENIOR DEPUTY PRESIDENT: Well, you might - - -
PN2907
MR DOCKING: But I did seek instructions and saying, Would there have been an evidentiary case that you wanted to put on this? This is for Mr Ludlow about that, if it was the proposed criteria and I am told, Yes. And obviously it just can t meet the requirements of procedural fairness at this late stage for the company to throw that up. It should have led evidence and I could have dealt with it in return by evidence. It would simply not happen.
PN2908
MR WILLIAMS: I m sorry. What s said not to have happened?
PN2909
THE SENIOR DEPUTY PRESIDENT: If I was to make an order that said you should use the mid-year performance review as a check . I think that was that and there s not been any evidence about it.
PN2910
MR WILLIAMS: No. I didn t ask for an order.
PN2911
THE SENIOR DEPUTY PRESIDENT: You said it could be done that way.
PN2912
MR WILLIAMS: I did say it could be done that way.
PN2913
MR DOCKING: It was maintained today that the contrivance arguments are still pressed. It suffices to - - -
PN2914
THE SENIOR DEPUTY PRESIDENT: From the health and safety issue are you going to address this question of whether it s part of is it a dispute about the application of the enterprise agreement?
PN2915
MR DOCKING: Yes. When I deal with the oral the written submissions, I should say, I ll deal with it then. It was where it was most developed. The contrivance arguments I am surprised it s still even maintained in part. It s been addressed in the written supplement of the CFMEU which I adopt without reading. Page nine from paragraph 15 through to page 10, paragraph 16.
PN2916
Now, with great respect there were two parts raised. The suggestion in the minutes of the company showed it was a contrivance and that in the consultation that there d been not expressed any genuine concerns about safety. On the next page 10, I do not purport to have exhaustively listed all sources of evidence in the time available, but enough to demonstrate it s wrong.
PN2917
And I have started with, in sub-paragraph (a) on page 10, the handwritten note of Mr Moran, issue is safety no safety factors in the numbers. Impossible for that to take place on the numbers that are provided, and that explains one of my opening comments this morning that I thought the existing evidence would be sufficient to ground the points I wanted to make about the minutes. And I have got the cross-examination references there that Mr Moran s compilation in writing it does not accurately or completely reflect at all what Mr Brodsky raised.
PN2918
And I provided other references, including to illustrate the point that the contrivance arguments are incorrect, sub-paragraph (c). It took a long time to get Mr Carter to finally answer that he accepted before Stephen Woods became available, it had been raised that major changes were going to lead to problems and issues because the requirements of the Coal Mining Safety and Health Act.
PN2919
And I provided other examples where it was incorrect to try to erect a theory that there was some contrivance to make complaints because they had not been expressed before the mine entry record of Mr Woods.
PN2920
As for the oral submission near the end which, as I apprehended, is based on a single Federal Court judgment, I join the Senior Deputy President that this case is not a case to suggest there s some indirect discrimination. Even on a reading of its tab five of the respondent s authorities a Federal Court judgment. When one looks at what was reasoned there it doesn t support its application at all - to clause 38.5 of this enterprise agreement the facts are not the same, there s no general principle which could be extracted and said to be of general application.
PN2921
I then go to the written closing submission of the respondent and to the point about suggesting matters of safety and, in particular, under the relevant Coal Act and regulations in Queensland are outside the agreement. That s clearly not the case. One only needs to go to the concessions of Mr Carter, in cross-examination.
PN2922
THE SENIOR DEPUTY PRESIDENT: Well, can I get you to point to me to something in the agreement? That shows this about the application of the agreement.
PN2923
MR DOCKING: I ll go to the evidence and then go back.
PN2924
THE SENIOR DEPUTY PRESIDENT: Okay.
PN2925
MR DOCKING: If I rely upon the evidence set out at page 8 in the supplementary outline in paragraph 14, let s look at the evidence of Mr Ludlow. Again, it s continuously since July/August 2013 confirmed in a statement, 7 April 2015, this is page 8, paragraph 14 sub-paragraph (a) that the mine has been desperately under-manned for a long period of time, and that there s coal mine workers suffering physically and mentally due to under-manning.
PN2926
Is it seriously suggested that the manning levels would not be a dispute for clause 41.1? Well, even if it is, it s quite clear when one looks at other evidence that s set out on page 9 of the supplementary outline, sub-paragraph (c), paragraph number 1190. And this theme was touched upon a number of times with Mr Carter question: These are significant workplace changes aren t they? Answer: Yes, they are. I mean that in fact obviously a lot of people and we don t take the decision lightly.
PN2927
And that s where there is an interplay to this extent between clauses 37 and 38. Thirty-seven, in the earlier parts deals with workplace changes. Clearly, they are matters arising under the enterprise agreement. In particular, if one looks at clause 37.1, 37.2 and 37.3. As I submitted in the primary submissions, the difference here is because it involved redundancy to consult in consultation obligations for this type of major change as it involves redundancies are found in 38.2 and 38.3 and so on.
PN2928
Redundancies of this type I am thinking of the old Kenefick cases the Submarine Corporation cases which went to originally, Chief Justice Wilcox of the Industrial Relations Court of Australia and then to a Full Court.
PN2929
It said there s a two-step process in a redundancy. The first step is deciding how many people would be made redundant. In my submission is that is a classic example of the workplace change or a redundancy within the meaning of clause 38.
PN2930
The second step is selecting from the pool of employees which employees should be selected. So there is a dispute if one uses that language in Kenefick v Australian Submarine Corporation about the first step, the reduction of the number of employees. And then that triggers, for example, 38.2 consulted are the proposed terminations. I pause then that redundancy determinations, because of a decision to reduce the number of employees here going from a 24-hour operation seven days a week to a one production shift with one maintenance operation.
PN2931
That s how and why there is proposed to be those terminations referred to in clause 38.2. And in the ordinary way one can look at measures to avoid or minimise the terminations. In other words, you re saying to the company here, in your first step of the redundancy process you do not need and should not reduce as many people. However, if you decide to proceed there should be consultation on the measures to avoid or minimise the terminations which in this case it can be seen 38.3 as an example can include consultation about the removal of contractors and reductions of supplementary labour and so on.
PN2932
So, in my submission, it squarely is within either a workplace change to the limited extent it has application in 37, until you have to defer to 38, for consultation. It is separately within clause 38 redundancy because by the very nature of it there is going to be a two-step process and one has to work out as part of that consultation about determinations how the mine is going to continue. How is it going to operate here with adequate manning and safety and so on?
PN2933
Could I then go to the written outline of the respondent, page two, paragraph five? There s absolutely no authority cited in support of the argument and there s no submission made or authority cited contrary to the Full Court of the Federal Court in my abbreviated Gordonstone judgment I have cited, about using past conduct, and nor could there be because in the judgment of I think it was Justices Wilcox and Madgwick and the separate judgment of Justice Small. There s reference to authorities of how arbitrators can use past conduct to secure an enduring and just outcome for the future.
PN2934
There s nothing to the contrary and then I have already made the point in response to the respondent s paragraph 6 that one looks at Serco and that s why I have drawn attention to Mr Ludlow actually helped formulate attachment A to clearly define the scope of the dispute is defined by the orders sought and paragraph 7, this is where I will need to go to the re-examination of Mr Brodsky.
PN2935
If I can just pull up that transcript, at PN416 for example, on the topic of the selection criteria Mr Brodsky explained what he meant by base tool. It s not an issue of whether an opportunity has been given to comment on something like the selection criteria. It s a question of whether real or genuine opportunities have been accorded and that s where the CFMEU says the company has its difficulties.
PN2936
In the same vein, in the re-examination at PN419, going to PN420, he was re-examined about Yes, you could put proposal about contractors. And PN420 Question: Did you experience any difficulties and being able to put such a question or proposals to the company, given the information available? And then Mr Brodsky then explains the difficulties which, based on the authorities I have set out, in the supplementary outline it s said it s not in the facts of this case the type of consultation required.
PN2937
And then when one looks at the respondent s written second outline, page 3, paragraph 9 Consultation onwards I think these paragraphs are mainly good examples of where issues already clearly joined by looking at the respondent s outline as opposed to the outline of the CFMEU and the supplementary outline.
PN2938
I have set out for all the types of information or types of consultation of both the authorities and why it s submitted the obligations have not been complied with. There is one I do need to address orally in reply, at page four, reference to Mr Carter s evidence is it s confidential and commercially sensitive, I invite the Commission to look at that. I was objecting to it during that re-examination by way of what was really cross-examination, and it was led from him in a leading way. But, in any event, I ve set out in the CFMEU s outline where he basically conceded he hadn t sought instructions from those who could decide that matter and, in particular, in circumstances where an undertaking an enforceable undertaking was offered by the CFMEU and the CFMEU representatives.
PN2939
That type of undertaking, as I have set out in the supplementary outline is not novel. It s actually taken straight from what Rowe C did in what I ve called the BHP case, 2012. And whilst talking about BHP cases or BMA, I m more than happy for the Senior Deputy President to look at what Justice Logan dealt with in the case Mr Williams referred to.
PN2940
The consultation period there, or one that s disputed, if it meets the consultation provision in that enterprise agreement it started from 23 September 2014 and concluded on 4 December 2014. No one was permitted or made involuntarily redundant until after 4 December 2014. This is not when you have your first consultation meeting on 9 June 2015 and it comes to the Commission by way of a dispute notification at 21 June 2015, some few weeks from beginning to trying to seek some intervention. In the BHP matter, the Senior Deputy President will be able to work out how many months and weeks, in contrast.
PN2941
And then in paragraph 31, there s this reference to the CFMEU s aggressive approach which apparently existed even before coming before the Commission. That s rejected. One only has to look at the correspondence of Mr Ludlow or Mr Brodsky to see how measured and sensible it is. And paragraph 42 it is rejected that there is some strategy of the type suggested in the fifth line in paragraph 42 of the response.
PN2942
As attachment A to the first submission makes it clear a first position is put, if I call it defer apart from volunteers until Lewin C can determine the outstanding dispute. But the alternative, if the Commission is presently constituted will not accede to that first option is following cases like Rowe C in BHP 2012, Asbury DP in BHP 2014, is to have apart from the concession about the 24 volunteers that the rest of the process restrained for a modest number of weeks, I think it s been three weeks is particularised, all subject to such other order of the Commission.
PN2943
It s hardly given the nature of this change an extensive delay that it would be one which would commit the various matters to be addressed and it would suggest that there was an agreement on the timing of voluntary redundancies and the like but that s simply untrue. Just because Mr Moran puts it on a whiteboard and says, This is what the company is going to do. That s the classic Justice Logan. This is a decision we ve made. Not, This is what we re thinking about. What do you think? At no stage has that timetable ever been agreed which is borne out, even by the minutes attached to Mr Moran and the various correspondence exchanged between people like Mr Ludlow and the company and Mr Brodsky and the company, confirmed by just two disputes that were filed.
PN2944
And I think page 13, paragraph 71, has already been touched upon. It s just not a submission that should be entertained by the Commission that it s now too late for any modification to the selection process, without significantly inconveniencing the process.
PN2945
There are good matters of principle which mean that s so. First and foremost is that the company agreed in the 2012 agreement to have two separate dispute settlement options, namely, clause 38.5(e) and/or clause 41.1. That s the bargain you ve entered into. You don t come and complain when other people covered by the bargain avail their rights.
PN2946
In paragraph 77, this has been touched upon before. There are two parts to it. Attachment A clearly particularises in the way Serco authorises, that there is a dispute about individual employees having their right or their union on their behalf having their right to challenge the application of the criteria. And that s what going back to the Commission Lewin proceedings, the union and its members, including retained employees on behalf of the former employees are being trying to get arbitrated now since 2013 without any success.
PN2947
And part of the complaints Mr Ludlow, as the Senior Deputy President has noted sets out uncontested what happened on the last occasion. They raised it in consultation meetings. We provide this course in advance, we have an exit interview, and the company said no. It s simply incorrect to suggest in 2015 that there was anything satisfactory about the matter proceeded in 2013.
PN2948
Again, now, for as Mr Williams points out, for a long time there s sought to be arbitrations on that very issue. Unfortunately, that has not occurred. And then paragraph 83 I have already made reference to the re-examination of Mr Brodsky where he confirmed there were issues about contractors. But in his re-examination as well, Mr Brodsky was shown his own notes where on 17 June he had recorded in his own notes, he was telling the company it was impossible to operate the mine in the way it proposed with their numbers.
PN2949
Also, in the supplementary outline I have put Mr Moran s handwritten note references, his typed minutes and then Mr Carter s concession that Mr Brodsky was always taking issues about safety from the very early days of the consultation meeting.
PN2950
And then, finally, I have already dealt with in oral submissions - page 15, paragraph 87 - the suggestion that there s some inference about Mr Ludlow. There is nothing forensically relevant, even about who made the complaint.
PN2951
THE SENIOR DEPUTY PRESIDENT: I m not sure I must say, there s no evidence that he did it and I m not even entirely sure that even if he had done it it really matters in itself, to be frank.
PN2952
MR DOCKING: Yes. Senior Deputy President - thank you for that opportunity to make those submissions and I say, again, I appreciate both sides have provided some referencing to the evidence and I understand it would take a reasonable time to reconcile the conflicting submissions, where issues have been joined or look at the source documents.
PN2953
THE SENIOR DEPUTY PRESIDENT: Thanks very much. I will reserve my decision.
ADJOURNED INDEFINITELY [1.29 PM]
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