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C2003/ 3728 , Transcript of Proceedings [2003] AIRCTrans 2550 (20 June 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C2003/ 3728 

CONSTRUCTION, FORESTRY, MINING AND
ENERGY UNION

and

BULGA COAL MANAGEMENT PTY LIMITED

Notification pursuant to section 99 of the Act
of an industrial dispute re alleged refusal of
the employer to permit an employee to perform his
normal duties

C2003/3981

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Construction, Forestry, Mining and Energy
Union for an order to stop or prevent
industrial action

SYDNEY

10.35 AM, THURSDAY, 5 JUNE 2003

Continued from 29.5.03 before Commissioner Roberts

PN189

THE SENIOR DEPUTY PRESIDENT: Good morning. I've called these matters on together and at this stage we'll deal with them both at the same time and I'll take the appearances please.

PN190

MR K. ENDACOTT: If it pleases the Commission, I appear for the Construction, Forestry, Mining and Energy Union, Mining and Energy Division, and with me is a MR L. HILL, who is the CFMEU Lodge Secretary of the Bulga Surface Operations Lodge and further to Mr Hill's right is a MR S. CHILDS, who is the employee that's referred to in the dispute notification in this section 127 application, if your Honour pleases.

PN191

MR S. AMENDOLA: If the Commission pleases, I seek leave to appear on behalf of Bulga Coal Management Pty Limited in respect to both matters and with me is MR J. DOFIAMINGH.

PN192

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Endacott, do you have difficulty with Mr Amendola's appearance?

PN193

MR ENDACOTT: No objection.

PN194

THE SENIOR DEPUTY PRESIDENT: Leave is granted, Mr Amendola.

PN195

MR AMENDOLA: If the Commission pleases, before Mr Endacott commences there are a couple of housekeeping matters I'd seek to deal with. Mr Endacott, wrote to my client on 3 June to ask whether or not in respect of the section 99 notification if my client intended to take any jurisdictional objection.

PN196

THE SENIOR DEPUTY PRESIDENT: Yes, I have a copy of that letter.

PN197

MR AMENDOLA: We wrote in response, but unfortunately.

PN198

THE SENIOR DEPUTY PRESIDENT: I don't have a copy of that.

PN199

MR AMENDOLA: You don't have a copy of that letter so I felt that it was appropriate to provide a copy of that letter so that the bases upon which we set our jurisdiction objection with respect to the section 99 application be on the Commission file. I apologise for the state of the toner in relation to the photocopying, your Honour.

PN200

THE SENIOR DEPUTY PRESIDENT: Its legible, Mr Amendola. Yes, thank you.

PN201

MR AMENDOLA: Further, in respect of the section 127 application, there is a fact that's asserted in relation to the application about payment being made to Mr Childs and I have sought instructions in relation to that. My client's instructions are that it will pay Mr Childs until the end of Friday of this week. So there was a letter, your Honour, that indicated on 20 May when another appointment had been arranged for Mr Childs and that if he didn't attend payment would not take place. There was in the notification to the Commission a letter that said that payment would be made until 23 May. Then there was a letter that then said until the matter was heard in the Commission payment would be made. At that Commission hearing before Commissioner Roberts - - -

PN202

THE SENIOR DEPUTY PRESIDENT: I don't have those documents but I think I follow what you're saying, Mr Amendola.

PN203

MR AMENDOLA: At that hearing before Commissioner Roberts it was indicated that payment would be that if he didn't attend the appointment payment would be ceased. That did in fact take place but my instructions are that now my client will pay Mr Childs up until Friday. My instructions are also that a further medical appointment has been organised for Friday at 1 o'clock in Sydney and because it will be pertinent to the nature of the application being made by my friend it should be indicated that if Mr Childs were not to attend that appointment on the Friday it would be my client's intention to dismiss Mr Childs. If the Commission pleases.

PN204

THE SENIOR DEPUTY PRESIDENT: Well, I think they were more than housekeeping matters, Mr Amendola, but thank you for raising it. Yes, Mr Endacott, they are your applications.

PN205

MR ENDACOTT: Thank you, your Honour. There are some housekeeping matters I would like to raise certainly. We propose that. firstly, we would commence dealing specifically with the dispute notification and then just keep the section 127 issue in abeyance at the moment just so that I can explain to the Commission what has progressed since the matter was last before this Commission on 29 May 2003.

PN206

I'll go firstly to those issues that my friend here appearing for the employers went to, your Honour. The union wrote to the company on 23 May 2003 and I'll provide a copy of that correspondence to your Honour. I'll also provide at the same time the company's response which is dated 26 May, and that correspondence was referred to by my friend.

PN207

THE SENIOR DEPUTY PRESIDENT: I should indicate that I have skimmed the section 99 file which was previously before Commissioner Roberts. I have not taken in much detail. I've deliberately done that because I've taken this as a new matter, as an arbitration, and I think it should start afresh. So you can consider that I know very little about this matter.

PN208

MR ENDACOTT: Thank you, your Honour. I was actually making my submissions on the basis that I thought you had read the transcript from the previous hearing.

PN209

THE SENIOR DEPUTY PRESIDENT: No, I've not read the transcript and deliberately not done so. Now, just let me have a look at the letter of 23 May for a moment. Do you want to tender that document?

PN210

MR ENDACOTT: It may be, because if the matter progresses to hearing, either this or the other matter, there might be a number of documents. So it might be better if we start marking them.

PN211

THE SENIOR DEPUTY PRESIDENT: Yes. The letter from the United Mineworkers Federation of Australia letterhead dated 23 May 2003 from Mr Richardson will be CFMEU1 and the reply from Bulga Coal Management dated 26 May 2003 will be CFMEU2.

EXHIBIT #CFMEU1 LETTER FROM UNITED MINEWORKERS FEDERATION OF AUSTRALIA DATED 23/05/2003

EXHIBIT #CFMEU2 LETTER FROM BULGA COAL MANAGEMENT DATED 26/05/2003

PN212

MR ENDACOTT: Now, your Honour, you will see that we have set out our position on 23 May 2003 and the company responded on 26 May 2003. It's somewhat of a brief letter but it refers to the matter being listed before the Australian Industrial Relations Commission on 29 May 2003, CFMEU2, and says:

PN213

Due to an application ...(reads)... pending the outcome of that hearing.

PN214

Then it indicates that Mr Childs will not be required to attend for his rostered shifts prior to the hearing.

PN215

Now, the matter was listed before Commissioner Roberts and it went into conciliation at the request of the parties, and at the end of conciliation the union requested that the matter be pressed to hearing for arbitration and that, as we are entitled, we used our rights under section 105 of the Act, I think it is.

PN216

It was certainly the union's understanding at all times, or it was my view, that the company wished that the matter be heard and would not take any action until there as an outcome as a result of that hearing. After 26 May certainly I thought it would be prudent to ask the company their exact position on that. I didn't want to turn up on the basis of assuming something that wasn't legally open to us and I wrote that letter to the Commission.

PN217

Ultimately the company then wrote back, and I didn't receive the letter to which my friend refers until the day after it was written, which was the 4th. I understand it was received at my office on that day but after the close of business. Therefore, that was the first time that we became aware the company was raising jurisdictional issues with respect to that and certainly it raised a confusion in my mind, your Honour, in that the company wasn't going to take any further action until the outcome of the hearing but now it would appear the company was objecting to the matter being heard on jurisdictional grounds.

PN218

THE SENIOR DEPUTY PRESIDENT: I'm not too sure that those two courses are inconsistent, Mr Endacott.

PN219

MR ENDACOTT: Well, they may not be, and I don't need to ask the Commission to form a conclusion about that, but what happened was - and this is why I asked for this matter to be dealt with first - the union has subsequently put verbally and in writing proposals to the company in an attempt to settle the matter. Certainly the final position was relayed as late as yesterday afternoon, I think about 2.40 pm, in a conversation with Mr Richardson, and also in correspondence which I subsequently sent to confirm the conversation I had with Mr Richardson.

PN220

We seek at this stage, certainly before we have to go into a complicated formal arbitration, specifically with respect to the 127 because it might be that we only press the 127 in the form of a hearing today, to resurrect that settlement. In making that submission I will indicate to the Commission what we propose will hopefully overcome this issue.

PN221

THE SENIOR DEPUTY PRESIDENT: If matters can be sorted out amicably that's always better than having a decision forced upon the parties. I would be reluctant, I think, to go into a conference, having regard to what's transpired to date. I don't know what you have in mind.

PN222

MR ENDACOTT: Yes. Well, what I was going to say, your Honour, and that's why I asked to put the 127 aside because I thought that would be certainly a concern raised by your Honour, is that if the proposal we put forward didn't settle the matter then we wouldn't press arbitration, not necessarily conceding the jurisdictional points but on the basis that there is jurisdictional uncertainty. We would only proceed with the 127. So there would be, in that regard, no bar to the Commission trying to have some sort of conference to deal with the dispute notification. I'm not sure of the present law on this issue, your Honour, because I'm not a lawyer, but I don't think the 127 is an act of arbitration. My friend here may well know that area of the field far better than I do.

PN223

THE SENIOR DEPUTY PRESIDENT: Well, perhaps we don't even need to go down that path. It's always open to the parties to waive their rights under section 105 when they invite the Commission to conciliate. If you both do that then we don't need to go down the path of whether 105 applies to 127 applications or not.

PN224

MR ENDACOTT: Yes.

PN225

THE SENIOR DEPUTY PRESIDENT: What's your position, Mr Endacott?

PN226

MR ENDACOTT: Well, certainly my position is that it does not apply to 127s but in order to clarify the position I would waive my rights - - -

PN227

THE SENIOR DEPUTY PRESIDENT: Yes. So if I chair a conference you won't then complain that I've chaired a conference when you want somebody else to hear the matter?

PN228

MR ENDACOTT: Certainly, I wouldn't do that.

PN229

THE SENIOR DEPUTY PRESIDENT: Mr Amendola, what's your position?

PN230

MR AMENDOLA: Our position, your Honour, is that I agree with the submissions of my friend in terms of section 127. I think there is some authority on the point that a 127 application is not an arbitration as such. I'm instructed that my client would waive its rights pursuant to section 105 if the Commission chaired a conference.

PN231

THE SENIOR DEPUTY PRESIDENT: All right. Well, that's cleared that part up. Mr Endacott, what do you want to do?

PN232

MR ENDACOTT: I just put on record that the proposal with respect to how we address the matter.

PN233

THE SENIOR DEPUTY PRESIDENT: Do you want to do this on the record or in conference, Mr Endacott? I'm not suggesting either way.

PN234

MR ENDACOTT: Yes. I'm unconcerned. Perhaps I can just put the proposal on record so that it's recorded.

PN235

THE SENIOR DEPUTY PRESIDENT: Do you have any problems with that, Mr Amendola?

PN236

MR AMENDOLA: No, your Honour.

PN237

THE SENIOR DEPUTY PRESIDENT: Yes?

PN238

MR ENDACOTT: It's set out in correspondence dated 4 June, your Honour. Just to give you a quick background without going over the detailed submissions we put in front of Commissioner Roberts: with respect to Mr Childs, who is the affected employee, we do not accept that there is sufficient concern, or there could be held sufficient concern, by the company about the ongoing health of Mr Childs to refer him to a medical specialist for assessment, which is our primary position and we would say you would need to have a bona fide concern, not a speculative doubt, but a bona fide concern to make such a request.

PN239

Certainly, the second prong, your Honour, is that there are agreed mechanisms in the industry for medical assessments should there be a concern by either the individual employee, an employer, or the union, about someone being able to perform their work in a safe and efficient manner because of medical reasons, and we submit that if a request is made it needs to be made in accordance with those agreed mechanisms which are the two prongs of the position.

PN240

Certainly we never have disputed the right of an employer who has a reasonable concern to investigate that issue and seek the assistance of the employee in that investigation. But I note with respect to the proposal and it reads as this, your Honour, and its to Mr Richardson, the operation manager, and I believe he's the operation manager of Bulga Coal Management Pty Limited, and that's how I normally describe him in my correspondence:

PN241

I write with respect to the abovementioned matter and further ...(reads)... on this basis remains.

PN242

So basically what's said today, I mean, this has been an ongoing issue and certainly there will be an ongoing issue about what is the correct mechanism for determining if someone's - I can certainly take the Commission in detail through the section 105 - what we say is the agreed industry practice. We now have that medical because I received a copy of it this morning. It was delivered to me while I was in the previous proceedings and we certainly on that basis propose if after reviewing that which is by an independent person, Joint Coal Board which is now Coal Services, if the company does have a concern, then we will attend the medical.

PN243

Now, when I proposed that correspondence, I hadn't seen the medical. I certainly had spoken to Mr Childs who had said, you know, verbally the guy had said, I don't know what he says but I think I'll get a good report out of it but in saying that, I'd also put the position earlier to the company in that correspondence that we would attend the Joint Coal Board medical in what we understood to be the agreed industry practices even before this.

PN244

So the offer of the Joint Coal Board medical wasn't a new one but in this case we do have a report. Certainly I believe that should perform a substantial basis upon which this issue could be - that is if after reviewing the report, there is any concern held by the employer, he will attend.

PN245

THE SENIOR DEPUTY PRESIDENT: So a medical is scheduled for tomorrow?

PN246

MR ENDACOTT: Is it tomorrow?

PN247

THE SENIOR DEPUTY PRESIDENT: Yes.

PN248

MR ENDACOTT: So I would say that we offer a conciliation on that basis.

PN249

THE SENIOR DEPUTY PRESIDENT: Mr Amendola, do you want to put anything on the record?

PN250

MR AMENDOLA: Plenty in due course if it doesn't settle, your Honour, but maybe not at this stage.

PN251

THE SENIOR DEPUTY PRESIDENT: No doubt.

PN252

MR AMENDOLA: Not at this stage, your Honour.

PN253

THE SENIOR DEPUTY PRESIDENT: Well, why don't we adjourn into conference then?

PN254

MR AMENDOLA: Can I just indicate that the person who came in is someone who is associated with Bulga Coal, Mr Wales so just to identify him.

PN255

THE SENIOR DEPUTY PRESIDENT: Yes.

NO FURTHER PROCEEDINGS RECORDED [10.55am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CFMEU1 LETTER FROM UNITED MINEWORKERS FEDERATION OF AUSTRALIA DATED 23/05/2003 PN212
EXHIBIT #CFMEU2 LETTER FROM BULGA COAL MANAGEMENT DATED 26/05/2003 PN212