PR935308

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AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996

s.99 notification of industrial dispute

Construction, Forestry, Mining and Energy Union

and

Pacific Coal Pty Ltd and Others

(C2003/956)

Coal industry

   

VICE PRESIDENT ROSS

 

SENIOR DEPUTY PRESIDENT DUNCAN

  

COMMISSIONER BACON

MELBOURNE, 25 JULY 2003

Application for exceptional matters order under s.120A in relation to Hail Creek Project - adoption of findings of another Full Bench - issue estoppel - order issued.

DECISION

Introduction

[1] This decision deals with an application by the Construction, Forestry, Mining and Energy Union (the CFMEU) for an exceptional matters order pursuant to s.89A(7) of the Workplace Relations Act 1996 (Cth) (the WR Act). The operative obligation in the order sought is that the `Pacific Coal Companies' `give preference in employment' and `are required to employ' sixteen named individuals at the Hail Creek mine when a decision is made to increase hands. The `Pacific Coal Companies' referred to in the order proposed are:

[2] These entities are related. Pacific Coal Pty Ltd (Pacific Coal) is a subsidiary of Australian Coal Pty Ltd, which is in turn a subsidiary of Rio Tinto Ltd. Pacific Coal is the employer of production and engineering staff at the Blair Athol and the Tarong coal mines.

[3] Hail Creek Coal Pty Ltd (Hail Creek Coal) is a subsidiary of Queensland Coal Pty Ltd. Queensland Coal Pty Ltd is a subsidiary of Australian Coal Pty Ltd. Hail Creek Coal is the present and proposed employer of production and engineering staff at the Hail Creek Mine in Queensland.

[4] Hail Creek Management Pty Ltd changed its name to CRA Finance International Pty Ltd in 1991. It is a subsidiary of Rio Tinto Ltd. It does not employ any staff, it finances projects. There is a Joint Venture between Marubeni Coal Pty Ltd, Sumisho Coal Developments Pty Ltd and Queensland Coal Pty Ltd to develop, market and sell coal taken from the Hail Creek Mine. This is referred to as the Hail Creek Coal Project.

[5] A chart showing the relevant corporate structure is set out below:

[6] Appearances in this matter were made by Pacific Coal Pty Limited, Hail Creek Coal Pty Ltd and Hail Creek Management Pty Ltd. It is convenient in this decision to refer to these entities collectively as the respondents. To avoid doubt we make it clear that where ever that term is used it includes the three companies who entered an appearance unless the context demands otherwise.

[7] The sixteen named individuals in the proposed order are all former employees of Pacific Coal who, until the termination of their employment in about July 1998, had been employed at the Blair Athol open cut coal mine in central Queensland. The form of the order requires that the sixteen individuals be given preference of employment at the Hail Creek coal mine in order of seniority based on their length of service with Pacific Coal (provided the individual is reasonably qualified to perform the duties of the vacant position).

[8] The order sought by the CFMEU is in the following terms:

[9] In the alternative the CFMEU seeks an order in the following terms:

[10] It is appropriate to set out some of the background to these proceedings before turning to consider the submissions before us.

[11] In 1997 Pacific Coal announced its intention to re-organise the mine operations at Blair Athol and made it known that the re-organisation would result in a significant reduction in employment levels. In July 1998 the employment of each of the sixteen individuals named in the order sought in these proceedings was terminated on the ground that they were surplus to Pacific Coal's operational requirements.

[12] The sixteen individuals sought relief in respect of the termination of their employment pursuant to s.170CE(1) of the WR Act. Commissioner Hodder dealt with these applications.

[13] The hearing before Commissioner Hodder extended over 32 sitting days, followed by extensive written submissions. The transcript of the proceedings exceeds 4500 pages and over 200 exhibits were tendered.

[14] On 9 April 2001, the Commissioner issued a decision1 (the reinstatement decision) and made findings that the termination of employment of each of the former employees was harsh unjust and unreasonable. The reinstatement decision ordered Pacific Coal to reinstate the former employees from 9 April 2001, without loss of continuity, and to pay them for remuneration lost since the date of termination up until the date of reinstatement.

[15] On 27 September 2001, Commissioner Hodder issued orders2 settling the consequential relief of the former employees (the consequential relief orders).

[16] On 12 October 2001, Vice President McIntyre ordered that the reinstatement decision and the consequential relief orders be stayed.3 In effect his Honour stayed the Commissioner's orders in so far as they placed an obligation on Pacific Coal to pay the wages of the former employees from the time their employment was terminated until 9 April 2001, but did not stay the order requiring the former employees to be reinstated.

[17] Pacific Coal paid the former employees their ordinary rate of pay, but directed each of the sixteen employees not to attend for work at the mine from 9 April 2001 until the appeal decision was issued, on 12 December 2002.

[18] On 18 February 2002, a Full Bench of the Commission, comprised of Vice President McIntyre, Senior Deputy President Kaufman and Commissioner Smith (the first Full Bench), issued a decision4 granting Pacific Coal leave to appeal in respect of Commissioner Hodder's reinstatement decision and the consequential relief orders. In that decision, the Full Bench said the following:

[19] The Appeal Bench was subsequently reconstituted (with Senior Deputy President Watson substituted for Vice President McIntyre, we refer to this Full Bench as the Pacific Coal Appeal Bench). It then conducted a rehearing consistent with the principles described in Coal & Allied Operations Pty Ltd v AIRC.5 The appeal hearings extended over six days with further evidence and extensive written submissions. A brief background to those proceedings is conveniently set out at paragraphs 10-19 of the decision of the majority (per Watson SDP and Smith C), under the heading `Brief Background':

[20] On 12 December 2002, the Pacific Coal Appeal Bench issued a decision7 in the appeal against Commissioner Hodder's reinstatement decision and consequential relief orders. The majority of the Bench upheld the appeal and quashed the orders of Commissioner Hodder. The majority found for themselves that the terminations of the former employees were harsh, unjust and unreasonable but made no further order other than to set aside the decision of Vice President McIntyre in the stay proceedings. In his minority decision Senior Deputy President Kaufman allowed the appeal, quashed Commissioner Hodder's orders and dismissed each application for relief. His Honour found that the termination of each of the respondents was not harsh, unjust or unreasonable.

[21] The majority made a number of findings in relation to matters specified in s.170CG(3). At paragraph 59 the majority said:

[22] The majority then considered remedy and said:

[23] On 12 February 2003 the 16 persons named in the proposed order made application to the High Court for writs of Certiorari and Prohibition. That application seeks to challenge the reconstituted Full Bench's decision on a number of grounds.

[24] It is important to recognise at this point that the powers we are being asked to exercise are materially different from those exercised by the Pacific Coal Appeal Bench. The order sought by the CFMEU seeks to regulate future conduct. Further, the appointment of the 16 former Blair Athol employees to positions at Hail Creek was not a matter which was determined by the Pacific Coal Appeal Bench as the majority concluded that there was insufficient evidence to establish that there was the requisite power to make such an appointment.

[25] Section 170CH(3) empowers the Commission to `make an order requiring the employer to reinstate the employee'. The employer in the proceedings before the Pacific Coal Appeal Bench was Pacific Coal not Hail Creek Coal. At paragraph 63 of its decision the majority said:

[26] In addition to what the CFMEU refers to as Pacific Coal's `past conduct' the applicant also relies on more recent events. In particular it is contended that the 16 former Blair Athol employees have been discriminated against in that they were not employed at the Hail Creek mine. As we have noted, the order sought by the CFMEU is directed at securing the employment of the 16 former employees at the Hail Creek mine. Accordingly it is appropriate that we set out some of the background in relation to Hail Creek.

[27] The Hail Creek mine is owned and operated by a joint venture between Sumisho Coal Development Pty Ltd, Marubeni Coal Pty Ltd and Queensland Coal Pty Ltd (referred to collectively as the Hail Creek joint venture partners). The majority shareholding is held by Queensland Coal Pty Ltd. The Hail Creek mine is located approximately 50 kilometres from the town of Nebo and approximately 140 kilometres outside of Mackay.

[28] The Hail Creek joint venture partners have appointed Hail Creek Coal to manage and operate the Hail Creek project. The joint venture partners have also entered into a service agreement with Pacific Coal to provide management services to Hail Creek Coal. Hail Creek Coal is the employer of all people at Hail Creek, excluding the senior management team.

[29] Hail Creek Coal, Queensland Coal and Pacific Coal are all companies within the Rio Tinto group of companies.

[30] The establishment and development of Hail Creek has two phases. The first is the construction of the mine. This phase includes the building of the coal handling plant, construction of the dragline, construction of workshops, offices, roads, the stockpile area, a rail line, dams and water pipes. HC Development Pty Ltd has been contracted by Hail Creek to construct the mine.

[31] The second development phase is the commencement, and ongoing, mining operation.

[32] The process for the recruitment of employees for the operation of Hail Creek commenced in September 2002. This process was the subject of extensive evidence and submissions in the proceedings. At this stage we only propose to briefly summarise the process adopted.

[33] The first stage of the process was to select prospective employees to form the core of the Hail Creek workforce from within the Rio Tinto group. These employees were to undertake mobile equipment operation, mobile equipment maintenance, coal handling plant and drill and blast. The positions were advertised in a number of Rio Tinto's Australian business units.

[34] About 400 applications were received for the 44 positions available in the first phase.

[35] There is a dispute about whether all of the sixteen named individuals in the CFMEU's proposed order (the former Blair Athol employees) lodged applications but it is conceded that twelve of them did.13 We return to this matter later.

[36] As a result of an initial screening of the employment applications only 148 of the 400 applications proceeded to the next stage of the recruitment process. The initial screening process is described by Mr Davies, the Manager, Employee and Community Relations for the Hail Creek coal mine from August 2001 to February 2003, in the following terms:

[37] None of the applications made by the former Blair Athol employees proceeded beyond the initial screening process. The 148 applicants who did progress were then subject to a telephone interview by which the numbers were reduced to 96. Following an assessment interview approximately 44 applicants were invited to attend a weekend session at which, amongst other things, they were offered employment.

[38] In addition to the specific recruitment of skilled and experienced employees from within the Rio Tinto group of companies, Hail Creek Coal also advertised, and has recruited, approximately 52 employees from the Mackay region. Mr Davies in his evidence describes this as `the second recruitment process at Hail Creek'.15 Except for those who made it to the last 96, applicants who had responded to the first invitation made to the employees of companies in the Rio Tinto group (including the former Blair Athol employees) were not considered in the second recruitment process.

[39] Hail Creek Coal has now completed its recruiting process for 2003. The next recruitment drive will not be until about January 2004 in relation to the commissioning of the dragline though some evidence suggests that additional employees will be engaged as operators/maintainers in the Coal Handling plant in September 2003.16

[40] We now turn to the relevant statutory provisions.

Relevant Statutory Provisions

[41] The WR Act limits the exercise of the Commission's industrial arbitral power by restricting the class of matters that may, for the purposes of arbitration, be treated as a matter in dispute. Those matters are identified in s.89A(2) as `allowable award matters'.

[42] It is common ground that the provision sought by the CFMEU is not referable to one of the matters identified in s.89A(2), nor is it incidental to such a matter and necessary for the effective operation of an award (s.89A(6)).17 But s.89A(7) establishes a jurisdictional exception to allow the award-making power to be exercised to deal with parts of an industrial dispute that would otherwise be excluded from jurisdiction by the operation of s.89A. The exercise of discretion to make an order based on the jurisdictional extension to exceptional matters is then constrained by s.120A.

[43] The nature of the power exercised pursuant to s.89A(7) was considered in CFMEU v AIRC in which the Full Federal Court said:

[44] Section 89A(7) provides that:

[45] Section 120A provides that:

[46] An exercise of award-making power over an exceptional matter depends on the Commission's satisfaction as to each of the five conditions set out in s.89A(7). Once the Commission declares that it is satisfied that the matter meets the five conditions, the jurisdiction to make an award provision in the terms proposed flows from the originating industrial dispute, unhindered by s.89A(1). However, s.120A operates to constrain the exercise of award-making power in relation to exceptional matters. Those constraints affect the scope of orders that may be made, the constitution of the Commission when making orders, and the maximum term of an order. Subsections 120A(2) and (3) impose conditions that must be observed in any exercise of the discretionary power to make an order.

[47] We propose now to turn to deal with the submissions relating to the originating industrial dispute. We then deal with the requirements of ss.89A(7) and 120A.

The Originating Industrial Dispute

[48] The CFMEU submitted that the requisite jurisdictional basis for the order sought was provided by either:

[49] In relation to the second matter the dispute finding sought is said to arise out of a letter of demand and log of claims served by the CFMEU, by letter dated 13 February 2003, on a number of companies including Hail Creek Coal, Hail Creek Marketing Pty Ltd, CRA Finance International Pty Ltd and Dendrobium Pty Ltd.20 The CFMEU subsequently served a further letter of demand and log of claims on the same entities, dated 5 March 2003, in the following terms:

[50] We have received correspondence dated 11 April 2003 from Blake Dawson Waldron, solicitors for Dendrobium Coal Pty Ltd, in the following terms:

[51] The respondents contended that there was no relevant industrial dispute to be settled by the making of the order sought. It is conceded that the Full Bench in the Gordonstone decision22 in effect found that claim 48 in the log which led to the 1995 dispute finding would be sufficient to underpin an order in the terms sought against Pacific Coal as an employer. But it is argued that this is insufficient to provide the jurisdictional basis for the order sought because:

[52] In the course of his oral submissions, Mr Parry SC, counsel for the respondents, also challenged the genuineness of the demands served by the CFMEU in February, March and April 2003. The respondents' submission on this point is limited to the following:

[53] We now turn to consider the arguments put.

[54] In relation to the 1995 dispute finding, Pacific Coal is party to that dispute, Hail Creek Coal is not. Indeed Hail Creek Coal did not come into existence until 15 November 1997. In these circumstances there is no proper basis for, in effect, expanding the 1995 dispute to include parties who had no corporate existence at that time25. This is so despite what may be said about the relationship between Pacific Coal and Hail Creek Coal. Hence the 1995 dispute finding does not provide a jurisdictional basis for the order sought - at least not insofar as the order applies to entities other than Pacific Coal.

[55] The respondents also challenged the genuineness of the dispute said to arise from the service of letters of demand and logs of claim on various entities in February, March and April 2003. The essence of the argument put in this regard is that the demands made are simply an attempt to give the Commission the requisite jurisdiction to make an Exceptional Matters Order in the form sought in these proceedings. In support of this proposition the respondents point to the close proximity between its submissions about an absence of jurisdiction and the service of the log.

[56] It is clear that a demand made without any intention of it being pursued, but for the purpose of attracting jurisdiction with respect to a purely intra state dispute, does not give rise to a genuine demand.26 But it is also well settled that a dispute is genuine if the demands on which it is based are genuine demands in the sense that they are seriously advanced.27 It does not matter that the demand is motivated by some other consideration or perceived collateral advantage28 including that of attracting the jurisdiction of the Commission.29 As her Honour Gaudron J (with whom Brennan, Dawson and Toohey JJ agreed) said in Vista Paper Products:

[57] We are satisfied that the demands made by the CFMEU are seriously advanced. The industrial history associated with a claim relating to an `increase in hands' also supports our conclusion in this regard. A cursory examination of the reports of the Coal Industry Tribunal establishes this.31

[58] The matter reported in C.R. Print 4640 is indicative. It was a dispute at Callide Coalfields Pty Ltd in Central Queensland. The Chairman of the Queensland Board of Reference issued a decision on an application by the CFMEU (UMW division) concerning the refusal of management to employ miners on union retrenchment lists as replacement labour for employees who had left the Company's mines. In the course of referring a particular issue to the Coal Industry Tribunal the Chairman said:

[59] In the course of the Tribunal's decision an observation on the history of the dispute over re-engagement was made:

[60] The Tribunal found that a practice had existed prior to 1990 although it operated in a somewhat flexible fashion. It operated at Callide but exceptions occurred from time to time in particular circumstances.32

[61] We are not persuaded that the proximity of the demands made to the respondents' jurisdictional objection is such as to warrant a conclusion that the demands are a sham and that the dispute lacks genuineness. The fact that one of the reasons for serving a log of claims is to defeat a jurisdictional objection to the relief claimed does not necessarily mean that the CFMEU was not seriously advancing the claims made. The High Court reached a similar conclusion in Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd.33

[62] We are prepared to find a new dispute on the basis of the letters of demand and logs of claims dated 13 February and 5 March 2003. A record of our finding in this regard is attached to this decision.

[63] It is convenient to record here that we are satisfied that the Exceptional Matters Order which we propose to make is within the ambit of the dispute we have found, in that it is reasonably incidental to the CFMEU's demands and has a rational or natural tendency to dispose of the question at issue.34 The demand dated 5 March 2003 is, in substance, in the same terms as that which the Full Bench in Gordonstone found was sufficient to underpin an order of the type sought in these proceedings. We have reached the same conclusion and respectfully adopt the reasons given in Gordonstone.

[64] It is also convenient to deal with the respondents' contention that if the log of claims and disputes found are left to one side, the orders sought are clearly in settlement of a local dispute and hence beyond power. It is said that the orders seek the employment of individuals and that claims seeking the reinstatement (or the engagement) of individuals, without more, do not create an interstate dispute.

[65] There is no substance to this point. While the dispute on which the Commission's jurisdiction is founded must extend beyond the limits of one State, the settlement of that dispute need not. As his Honour Mason J (as he then was) said in R v Hegarty; Ex parte City of Salisbury:

[66] Before turning to deal with the requirements of ss.89A(7) and 120A we note that there is a degree of overlap between the considerations which may be relevant to the matters identified in paragraphs 89A(7)(c), (d) and (e), and in s.120A. The CFMEU broadly relies on its merits argument in support of its contentions in respect of each of these matters. Accordingly it is convenient to deal with the CFMEU's merit argument in general terms before turning to the particular matters in ss.89A(7) and 120A.

Merits

[67] For reasons which will become apparent it is only necessary for us to deal with two of the merit arguments advanced by the CFMEU, namely:

[68] We express no view as to merit of the range of other arguments advanced by the CFMEU.

Pacific Coal's Past Conduct

[69] In addition to the evidence filed in the proceedings before us, the CFMEU relies on what is said to be the `past conduct' of Pacific Coal36 in relation to the sixteen named individuals specified in the proposed order. This past conduct is based on:

[70] In relation to Commissioner Hodder's findings the CFMEU contends that the majority decision of the Pacific Coal Appeal Bench did not find that there was any appealable error in the Commissioner's reinstatement decision and accordingly we are able to rely upon the Commissioner's first instance findings in relation to Pacific Coal's conduct.

[71] The respondents contend that as the Pacific Coal Appeal Bench conducted a rehearing consistent with the principles described in Coal and Allied Operations Pty Ltd v AIRC,37 any `findings' made by the Commissioner have been overturned and replaced by the Pacific Coal Appeal Bench. Hence it is argued that the adoption of findings made by Commissioner Hodder would lead us into error.

[72] In our view Coal and Allied Operations Pty Ltd v AIRC is authority for the proposition that an appeal under s.45 of the WR Act is properly described as an appeal by way of rehearing and that the exercise by a Full Bench of the Commission of its powers under s.45(7) depends on the decision at first instance being attended by appealable error.

[73] The Pacific Coal Appeal Bench upheld the appeal from Commissioner Hodder's decision and exercised its powers under s.45(7) to quash the orders subject to appeal.38 While not made explicit in the decision of the majority it must be inferred that they concluded that the Commissioner's decision was attended by appealable error.

[74] In these circumstances we do not think it appropriate to adopt or otherwise have regard to Commissioner Hodder's findings.

[75] The respondents also contended that the adoption of findings made by the majority of the Pacific Coal Appeal Bench would lead us into error. It is submitted that the Commission as presently constituted is required to act in a judicial manner and must have before it evidence or material on which it can rely in forming its views. It should not simply adopt the views and findings of another tribunal in a different matter. It has no statutory authority to do so and s.110 of the WR Act does not have that effect. The respondents argued that the Commission can only have regard to the prior proceedings to a limited extent:

[76] In addition to the submissions about our power to adopt the findings in question the respondents also made reference to the prerogative writ proceedings initiated by the 16 persons named in the proposed exceptional matters order. It is said that in any such proceedings Pacific Coal will contend that the majority of the Full Bench was in error in the exercise of its jurisdiction in coming to the findings it did and the way it discharged its statutory obligations and that such errors would go to the discretionary aspect of the High Court's jurisdiction in deciding whether or not to issue prerogative relief. It is submitted that ultimately the High Court (or the Federal Court) may come to its own findings on the evidence and that where there are ongoing proceedings dealings with these findings it is unsatisfactory that they be relied on for the creation of future rights.

[77] It is convenient to record here that we are not persuaded by the respondent's submissions in relation to the prerogative writ proceedings. It seems to us to be highly unlikely that in the context of such proceedings a court would make findings of fact in relation to matters which were before the Pacific Coal Appeal Bench. In Re Griffin and others; Ex parte Professional Radio and Electronics Institute of Australia Brennan J described the court's role in such proceedings in the following terms:

[78] The findings of the majority remain unaltered until a court determines whether the Commission's powers have been validly exercised.41 In such circumstances we see no impediment to our reliance on those findings.

[79] We now turn to deal with the respondent's contention that it would be an error to adopt the findings made by the majority of the reconstituted Pacific Coal Appeal Bench.

[80] The power of a tribunal to prevent the relitigation of issues which have been previously determined by the tribunal has been considered in the context of proceedings in the Administrative Appeals Tribunal (the AAT).

[81] In Re Quinn and the Australian Postal Corporation42 the AAT suggested that s.33(1) of the Administrative Appeals Tribunal Act 1975 (Cth) gave it the flexibility to decide whether to allow re opening of an issue that had been decided in earlier proceedings between the parties. Section 33(1) states:

[82] The Full Court of the Federal Court approved this approach in Morales v Minister for Multicultural Affairs.43

[83] In Morales the AAT had made a decision affirming the delegate's refusal of Morales application for an entry visa. The Federal Court (Sackville J) had set aside the decision of the AAT (constituted by Mr McMahon) and remitted the matter to the Tribunal `to be dealt with by law'. On hearing the remitted matter, the AAT, constituted by Purvis J, regarded the matter as a rehearing, and permitted the introduction of fresh evidence on which the AAT had made a finding in the earlier decision. The Full Court held that no question of issue estoppel arose, as Sackville J set aside the earlier decision in its entirety. (The Court did not comment on the broader question of whether a decision of the AAT could ever give rise to an issue estoppel). However the Court held that Purvis J made an error of law in that he wrongly considered that he was bound to conduct a full rehearing with further evidence, when the order of Sackville J had left him with a discretion as to whether to conduct a rehearing:

[84] In setting aside the decision of Purvis J, the Full Court quoted with approval its earlier decision in Blackman v Commissioner of Taxation,45 in which Gray J (with whom Keely J agreed) said that where a case is remitted to the AAT it has a wide discretion as to how it should proceed in making its findings:

[85] It was therefore open to Purvis J to decide to hear the evidence afresh, if he thought it appropriate `after careful examination of a range of competing considerations'. He failed to exercise that discretion because of his erroneous belief that he was bound to conduct a rehearing.

[86] The Court went on to approve the approach in Quinn in the following terms:

[87] While Morales involved the remittal of a matter following a successful appeal to the Federal Court, the comments of the Full Court quoted above would seem to apply also where the issue sought to be re-opened had been determined by the Tribunal in a previous application between the same parties. The effect of the decisions in Morales and Blackman appear to be that in both situations the tribunal is required to consider whether to:

[88] In deciding how to proceed, the Full Court said in Morales that the tribunal would need to `consider all relevant circumstances'. Presumably these would include the statutory requirements, such as duty to act expeditiously and fairly, and the common law requirements of procedural fairness.

[89] The Commission is afforded similar procedural flexibility to that enjoyed by the AAT under s.33 of the AAT Act. Relevantly s.110 of the WR Act provides that:

[90] We are satisfied that we may, if we consider it appropriate, adopt the findings made by the majority of the Pacific Coal Appeal Bench.

[91] We note that it may also be the case that issue estoppel operates to preclude the respondent from challenging those findings in these proceedings. The nature of issue estoppel is explained by Dixon J in Blair v Curran in the following terms:

[92] A question arises as to whether issue estoppel applies to decisions of administrative tribunals such as the Commission. In The Administration of the Territory of Papua and New Guinea v Daera Guba49 the High Court held that such decisions can give rise to cause of action estoppels. The facts of the Guba case were (relevantly) that there had been a 1954 decision of a Land Board, set up under s.9 of the Land Ordinance of 1911 (Papua), as to the ownership of certain land in Port Moresby. The decision had been that the land in question was owned by the Administration. In 1966 a claim of ownership of some of the land subject of the 1954 decision was made by certain Papuans. That claim was made before the Land Titles Commission set up under the Land Titles Commission Ordinance 1962 (PNG). The Commission decided that the earlier decision of the Board created no estoppel against the applicants before the Commission and declared that the applicants, rather than the Administration, owned the land in question. The Commission's decision was the subject of appeal to the Supreme Court of Papua and New Guinea and ultimately to the High Court of Australia.

[93] Gibbs J, with whom in this regard Menzies and Stephen JJ agreed, said:

[94] The above remarks are to be understood as limited by their context to cause of action estoppel and not as intended to extend issue estoppel, but the question arises as to whether they should be so extended in an appropriate case.

[95] The applicability of issue estoppel to Commission decisions has been considered in a number of cases.

[96] In Hatchett v Bowater Tutt Industries Pty Limited51 the respondent sought to have a proceeding before the Court dismissed or stayed on the ground that the applicant was estopped by a decision of the Commission from re-litigating the subject matter of the proceeding, or alternatively on the ground that the proceeding was an abuse of process. After noting that the jurisdiction of the Commission was limited to the prevention and settlement of industrial disputes extending beyond the limits of any one State,52 von Doussa J held that the Commission lacked jurisdiction to ascertain and declare the existing rights of the applicant. His Honour said:

[97] It should noted that his Honour concluded that no issue estoppel could arise by reason of the decision of the Commission because the decision of the Commission was not a decision made by a tribunal which had jurisdiction finally to decide such applications.

[98] Similarly, in Australian Transport Officers Federation v State Public Services Federation,54 the Full Court of the Federal Court doubted whether the principles of res judicata or issue estoppel applied to proceedings of the former Conciliation and Arbitration Commission.

[99] However, it is important to recognize that the relevant statutory framework is now quite different.

[100] The Pacific Coal Appeal Bench was dealing with an appeal from orders made by Commissioner Hodder who had exercised the power conferred by s.170CG. That section confers a power to arbitrate in relation to an application made under s.170CE. The arbitration of such an application is not industrial arbitration deriving from legislation enacted by reference to s.51(xxxv) of the Constitution. The nature of the Commission's powers in relation to what are colloquially known as unfair dismissal claims was discussed by the Full Court of the Federal Court in Re Australian Industrial Relations Commission; Ex parte Construction, Forestry, Mining and Energy Union, in these terms:

[101] The effect of the different character of the Commission's unfair dismissal jurisdiction on the applicability of issue estoppel was remarked upon by Moore J in Blagojevch v Australian Industrial Relations Commission, as follows:

[102] His Honour went on to cite the final sentence from the extract from the decision of Gibbs J set out above at paragraph 93.

[103] More recently, in Miller v University of New South Wales, Bransen J agreed with the above observations:

[104] Dr Miller was a former employee of the University. He was aggrieved by the circumstances in which his employment was terminated. In the Federal Court Dr Miller was seeking relief under s.413A of the WR Act consequent upon an alleged breach by the University of a certified agreement. Before Dr Miller commenced this proceeding he had made and prosecuted an application to the Commission in respect of the termination of his employment by the University.

[105] The University contended that the issues and matters upon which Dr Miller relied in the Federal Court had already been determined by the Commission, giving rise to an issue estoppel concerning them.

[106] Justice Bransen held, among other things, that Dr Miller was estopped from relitigating the issue of whether there was a valid reason under the certified agreement for the termination of his employment by the University.58

[107] On the basis of the foregoing it seems to us that a decision of the Commission pursuant to ss.170CG and 170CH can give rise to an issue estoppel. In deciding whether issue estoppel applies in this case the central consideration is whether the Commission has the power to finally decide the question arising between the parties. On this basis issue estoppel would not apply to Commission decisions regarding jurisdictional facts, such as whether a termination of employment was at the initiative of the employer, because the Commission's decisions in respect of such a matter is not conclusive.59 But, issue estoppel would apply to findings of fact which lead the Commission to conclude that a termination of employment was harsh, unjust or unreasonable. In expressing this view we make it clear that we are only referring to decision made in the exercise of the jurisdiction conferred on Division 3 of Part VIA of the WR Act. Different considerations arise in respect to the Commission's general jurisdiction.60

[108] For completeness we note that the doctrine of issue estoppel is properly regarded as a rule of public policy and not merely as a rule of evidence.61 Hence the fact that the Commission is not bound to apply the rules of evidence does not affect the application of issue estoppel in the circumstances we have referred to.

[109] We also note that the effect of issue estoppel is that once an issue has been determined it `cannot afterwards be raised between the same parties or their privies'.62 Hence the estoppel would also extend to Hail Creek, as a privy of Pacific Coal.

[110] We are satisfied that on the basis of either our general powers under s.110, or the application of issue estoppel to unfair dismissal decisions, we are entitled to have regard to the findings of the Pacific Coal Appeal Bench.

[111] Even if we are wrong about the application of issue estoppel in the circumstances of this case, we are satisfied that our general powers are broad enough to enable us to have regard to the findings made by the Pacific Coal Appeal Bench. In this context we have taken the view that we are entitled to have regard to the policy considerations which underpin issue estoppel in deciding whether to rely on the earlier findings pursuant to our powers under s.110 of the WR Act.63 Such policy considerations include the orderly administration of justice and avoiding the reagitation of issues. 64

[112] We have had regard to these policy considerations as well as matters of administrative efficiency and convenience, and industrial fairness. We have decided to adopt and rely on the findings of the majority in the Pacific Coal Appeal Bench, which are set out below.

[113] The majority found that the actions of the employer in selecting the applicants for redundancy were harsh, unjust and unreasonable.65 The majority reached no particular conclusion in relation to the PER process per se,66 but did find that the initial selection of the `worst 50 employees' by the supervisors and superintendents and the PER assessments were undertaken in the context of Pacific Coal's objective of reducing union influence.67 Further, the majority concluded that this `unfairly disadvantaged the (16 former Blair Athol employees) in the selection of employees to be made redundant'.68 The majority went on to say:

[114] The majority also found that the selection of the 16 former Blair Athol employees was influenced by the fact that they had asserted a right which they enjoyed under an industrial instrument. The fact that this was a matter which was taken into account in the selection of the employees to be made redundant was found to be `unjust and unreasonable'.70 In relation to this issue the majority said:

[115] The respondents contended that if we were minded to rely on the findings made by the Pacific Coal Appeal Bench we should prefer the findings in the minority decision of Senior Deputy President Kaufman. At paragraph 36 of its written submission the respondents say:

[116] We are not persuaded by the respondents' submissions in this regard and in the circumstances of this case we can see no reasonable basis upon which we would prefer the findings of Senior Deputy President Kaufman to those of the majority.

[117] The respondents also contended that the findings of the Pacific Coal Appeal Bench were irrelevant to the matter before the Commission. The essence of the submissions advanced in this regard is that the circumstances of this case are distinguishable from those in the Gordonstone matter. Unlike Gordonstone, Hail Creek is a different mine with a different employer. Hence Pacific Coal's conduct in respect of Blair Athol is irrelevant to a consideration of an order regulating the future conduct of Hail Creek Coal.

[118] We accept that the circumstances in the matter before us are different to those which confronted the Commission in Gordonstone. We also accept that Hail Creek Coal is not a subsidiary of Pacific Coal. But in our view the distinction drawn by the respondents between these two entities is highly artificial. A number of points may be made in this regard.

[119] First, in his evidence Mr Davies makes this representation:

[120] Second, Rio Tinto is the ultimate holding company of Pacific Coal, Queensland Coal Pty Ltd, Australian Coal Holdings Pty Ltd, Hail Creek Coal and CRA Finance International Pty Ltd (formerly Hail Creek Marketing Pty Ltd).74

[121] Third, there is a Management Agreement under which the Joint Venturers agree that Hail Creek Coal manages, supervises and conducts the Hail Creek Project. Hail Creek Coal is responsible for the engagement of (at least production and engineering) staff as employees of Hail Creek Coal. Hail Creek Coal has entered into a Management Services Agreement with Pacific Coal. Under that Agreement Hail Creek Coal has engaged Pacific Coal to provide management services for Hail Creek Coal, subject to the policies and directions of the Board of Hail Creek Coal.

[122] Fourth, in the past and presently, Rio Tinto transfers employees between Queensland mines operated by Pacific Coal and the Rio Tinto Group mines located elsewhere in Australia75 and even overseas.76

[123] Finally, there is also some evidence to suggest that management regard the various units of Rio Tinto as one entity. In his witness statement Mr Kelly says:

[124] Mr Smith's evidence is to the same effect.78 Mr Paul McCrea was the Manager - Business and Employee Services at Blair Athol at the time the employment of the 16 former employees was terminated.

[125] Given the practical relationship between Pacific Coal and Hail Creek Coal as part of Rio Tinto we are satisfied that evidence of Pacific Coal's `past conduct' is relevant to our consideration of the matter before us.

Hail Creek Selection Process

[126] In addition to Pacific Coal's past conduct the CFMEU contends that there is within the Rio Tinto group continuing discrimination against each of the 16 former Blair Athol employees as is demonstrated by the failure of Hail Creek Coal to engage any of them at the Hail Creek mine. In this regard it is submitted that each of the former employees is a competent and experienced mine production employee who is qualified to fill positions with respect to `Mobile equipment operators (including drill & blast)', `Coal handling and preparation plant maintainers/operators', and `Mining operators, mining experience not essential'.

[127] There is a dispute as to whether all of the 16 former Blair Athol employees applied for positions at Hail Creek. The respondents initially submitted that Messrs Mannion, Halverson, Crichton and Mitchelson never applied. It was later conceded that Mr Mitchelson must have made such an application as he had received a rejection letter.79 The fact that Messrs Mannion, Halverson and Crichton did not receive rejection letters is not conclusive. A number of the former Blair Athol employees, who the respondents accept made applications, did not receive rejection letters.

[128] On the material before us we are satisfied that all 16 of the former Blair Athol employees applied for positions at Hail Creek.

[129] We also find that each of the former Blair Athol employees is a competent and experienced mine production employee and each is qualified to fill some of the positions advertised in the first and second phases of the recruitment process at the Hail Creek mine. Indeed a number of the former Blair Athol employees are highly skilled and/or have extensive experience. For example, Messrs Mannion, Appleton and Finger were trainers/testers for many years at Blair Athol; Messrs Mitchelson, Bettridge and Barnes were open cut examiners. Messrs Mannion, Crichton, Cusack, Lindley and Mitchelson had years of mining experience before working at Blair Athol.

[130] Further, the former Mining Superintendent at Blair Athol, Mr Thompson gave evidence in the unfair dismissal proceedings before Commissioner Hodder that he would have no difficulty employing Messrs Mitchelson and Barnes if there were jobs available at Blair Athol. Indeed he considered these two former employees as friends and regarded them as good and reasonable employees.80 Mr Thompson is now the Mining Superintendent at Hail Creek. Eight of the former 16 Blair Athol employees listed Mr Thompson as a referee in support of their applications for employment at Hail Creek.

[131] Despite the matters set out at paragraphs 129 and 130 not one of the former Blair Athol employees proceeded past the first stage of the selection process. None of them even obtained an interview.

[132] It is apparent from the evidence before us that errors took place in reviewing the applications made by the former Blair Athol employees in order to determine if they should proceed to the next phase of the selection process. These errors disadvantaged the applicants concerned. For example, Mr Barnes, despite his experience as an Open Cut Examiner - a position that carries statutory responsibilities concerning the safe operation of the open cut workings - was incorrectly assessed as having no open cut experience81 and as not having the requisite skills for work in the coal handling preparation plant.82 Mr Barnes' 15 years experience as a shot firer was also ignored.83

[133] The evidence is replete with other examples.84 The essence of the respondents' reply is that the same process applied to everyone. We disagree, for three reasons.

[134] First, the evidence of the respondents' own witnesses discloses differential treatment. At paragraph 35 of his witness statement Mr Davies says:

[135] In the course of Mr Davies' cross-examination the following exchange takes place:

[136] Second, the submission by the respondents invites us to accept that while errors occurred in relation to the assessment of the applications from the former Blair Athol employees the same process applied to all applicants. Implicit in this is the proposition that errors were made in relation to other applicants as well and hence all applicants were disadvantaged to the same extent. There is no evidence to support the latter proposition. While the same process operated (save for the point mentioned at paragraphs 134-135 above) there is no evidence of any errors occurring in relation to the assessment of any of the other applications. The only evidence we have regarding errors in the assessment process is in relation to the applications made by the former Blair Athol employees. In essence we are invited to infer that errors also took place in the assessment of the other applications. We see no reasonable basis for doing so.

[137] Hail Creek and Pacific Coal have a clear relationship with Rio Tinto. To find that the errors which took place in assessing the applications by the former Blair Athol employees occurred across the board implies a breathtaking level of incompetence in the selection process. Such a finding is clearly at odds with Rio Tinto's standing as a highly successful international company.

[138] Third, as we have already noted (see paragraph 16 infra) no stay order was issued in respect of Commissioner Hodder's order that the 16 former Blair Athol employees be reinstated. In Ramsey Butchering Services Pty Ltd v Blackadder87 the Federal Court considered the meaning of `reinstatement' in the context of s.170CH of the WR Act. In that case the majority, Tamberlin and Goldberg JJ, held:

[139] Hence it follows that as a consequence of Commissioner Hodder's order the contractual relationship between the 16 former employees and Pacific Coal was restored.

[140] The first stage of the recruitment process was targetted at the employees of the Australian Business Units of Rio Tinto. An advertisement in respect of the positions vacant at Hail Creek89 was sent to each business unit and it was distributed to employees in accordance with local practice.90

[141] The 16 former Blair Athol employees, despite their reinstatement by Commissioner Hodder, were not permitted on site at the time the advertisement was distributed. Unlike the position taken in respect of other Pacific Coal employees, no steps were taken to ensure that the positions vacant at Hail Creek were drawn to the attention of the 16 former employees.91 In particular, those employees were never sent, by Pacific Coal or Rio Tinto, advice about the positions vacant at Hail Creek.92

[142] At the relevant time the 16 former Blair Athol employees were being paid by Pacific Coal but were not permitted to perform any work. In fact none of the 16 former employees has been permitted to enter the Blair Athol site to work as Pacific Coal employees since their employment was terminated.93 As a consequence they did not have access to on site notice boards or meetings.

[143] For present purposes it is unnecessary for us to go so far as to find that the recruitment process at Hail Creek discriminated against the former Blair Athol employees. However we do find that the process operated unfairly in respect of the former Blair Athol employees.

[144] We now turn to the requirements of ss.89A(7) and 120A.

Requirements of ss.89A(7) and 120A

s.89A(7)(a): genuine attempt to reach an agreement

[145] There is no contest in respect of this issue. We are satisfied that the history of the issues between the parties shows that genuine attempts have been made by the CFMEU to settle the dispute.94 We find that a party to the dispute has made a genuine attempt to reach agreement on the exceptional matter.

s.89A(7)(b): no reasonable prospect of agreement

[146] There is no contest in respect of this issue. We find that there is no reasonable prospect of agreement being reached on the exceptional matter by conciliation, or further conciliation, by the Commission.

s.89A(7)(c): appropriate to settle by arbitration

[147] The condition in paragraph 89A(7)(c) is generally worded and in our view should be read as a general discretionary ground about the appropriateness of arbitration as the mode of settling the matter in dispute.95

[148] On the basis of our consideration of the merits and our findings in respect of both the originating industrial dispute and s.89A(7)(b) we are satisfied that it is appropriate to settle the exceptional matter by arbitration.

s.89A(7)(d): exceptional issues

[149] The respondents contended that the matters relied on by the CFMEU do not make the issues involved exceptional. In particular it was argued that the commencement of a coal mine is not an exceptional matter and that the commencement of operations at Hail Creek had nothing to do with the retrenchment of the 16 former employees from Blair Athol in 1998. The circumstances in Gordonstone - where the re-opening was at the same mine and the same work was to be performed - were distinguished from the circumstances in this case.

[150] The respondents accepted that where an exceptional matters order is sought against an employer, the prior conduct of that employer may be a relevant consideration. But argued that in this case whatever may be said about Pacific Coal's past conduct, it is not relevant to the future rights sought to be created.

[151] We are satisfied that the issues involved in the exceptional matter are exceptional issues. In reaching this conclusion we have had regard to the findings of the majority in the Pacific Coal Appeal Bench (set out at paragraphs 113-114 herein) and our findings in relation to the Hail Creek Selection Process.

s.89A(7)(e): harsh or unjust outcome

[152] The respondents contend that a consideration of whether a harsh or unjust outcome would apply requires `a balancing of the position of the former employees and Hail Creek Coal in the context of the legislative scheme and the public interest.'96 It is also said that there is a significant overlap between s.89A(7)(e) and the discretionary considerations in s.120A. We agree with the respondents' contentions as to the approach to be taken to s.89A(7)(e). We also agree that there is a significant overlap between s.89A(7)(e) and s.120A.

[153] The respondents submit that a harsh or unjust outcome would not apply if the industrial dispute did not include the exceptional matter. The following points were advanced in support of this contention:

[154] The respondents also relied on the merits issues it advanced in respect of the public interest considerations arising under s.120A.

[155] We have had regard to the respondents' submissions but have concluded that a harsh or unjust outcome would apply if the industrial dispute were not to include the exceptional matter. We have reached that conclusion after balancing the merit issues set out at paragraphs 66-143, the impact on the 16 former employees of those issues and the matters advanced on behalf of the respondents.

[156] We now turn to deal with s.120A.

Must only relate to a single matter (s.120A(1))

[157] The respondents contend that each of the 16 former Blair Athol employees constitute a single matter on their own. In its written submission the respondents say, after setting out the terms of s.120A:

[158] Contrary to the submissions of the respondent we are satisfied that properly characterised the order we propose to make only deals with a single matter.

Public interest and objects of the WR Act (s.120A(2))

[159] Determining whether the public interest supports a particular outcome necessitates a balancing of the relevant interests. As their Honours Mason CJ, Wilson and Dawson JJ observed in Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia:

[160] The interests of the relevant employees and employers are relevant in this regard.99

[161] The respondents contend that neither the public interest nor the objects of the WR Act support making an order in the form sought. In particular, reference is made to the effect of such an order in removing from Hail Creek Coal its right to choose its employees on their merits.100 It is put that such an outcome would be inconsistent with basic notions of management and with allowing an employer to conduct its business efficiently subject only to the fair treatment in accordance with those who become employees.

[162] Two further considerations are raised by the respondents. First, that the 16 persons named in the present application have made an application to the High Court for writs of certiorari and prohibition that seek relief inconsistent with the relief sought in this application.

[163] Second, in ACSA v Gordonstone101 the Commission made particular note of the fact that the WR Act excluded `provisions which affect the capacity of an employer to determine a number or identity of persons who may be redundant' from allowable award matters. It is said that in this case the WR Act is being used to affect the capacity of an employer to determine the number or identity of persons who were to be employed.

[164] In relation to the second matter, we accept that the approach to be applied in proceedings such as this, where what is sought is an order which materially inhibits the ability of a management to implement its preferred recruitment policy, is as set out in the XPT case, as follows:

[165] However in our view the balance of considerations in this case warrants the order we propose to make. Further, we are satisfied that making the order we propose is in the public interest and consistent with the objects of the WR Act (s.120A(2)).

[166] As to the first matter, we do not agree with the respondents' contention that the prerogative relief sought by the 16 former Blair Athol employees is inconsistent with the relief sought in these proceedings.

[167] In the unfair dismissal proceedings the applicants seek reinstatement. Such an order would usually, though not necessarily, carry with it orders under s.170CH(4) for maintenance of the employee's continuity of employment and payment of remuneration lost up to the time of reinstatement. Where such orders are made, an employee is protected against economic loss arising out of the termination of employment. The order we propose will not have that effect.103 Moreover the order has been framed such that it will cease to apply to any person who accepts or rejects a written offer of employment made by Pacific Coal for a position at its Blair Athol Coal Mine. We also leave open the prospect of the Commission varying the order by consent should the parties agree such a course.

[168] Finally, we do not find the respondents reliance on ACSA v Gordonstone persuasive. The circumstances in this case are quite different from those considered by the Full Bench in that matter.

[169] We have had regard to all of the matters specified in s.89A(7) and ss.120A(1) and (2). We have decided to make an exceptional matters order.

Single business (ss.120A(3) and (4))

[170] The order we propose to make only applies to a single business, being Hail Creek Coal. We deal with the parties to the order in more detail shortly.

Term of order (s.120A(5))

[171] The order we propose to make will cease to be in force two years after it is made.

Form of the order

[172] In its written submission the respondents suggested that an order in the form sought may offend s.298Y of the WR Act. It was submitted that:

[173] This part of the respondents' written submission was not the subject of any further elaboration during the course of oral argument. The basis of the respondents' contention that the provision sought may be void under s.298Y is not immediately apparent. The argument was not developed and no authorities were referred to. Even if one assumes that in its log the CFMEU is seeking an outcome which would benefit its members that does not advance the respondents' argument. It is the terms of the order which is determinative, not the log upon which it is based.

[174] Section 298Y states:

[175] We are satisfied that the order we propose to make does not require or permit, or have the effect of requiring or permitting any conduct that would contravene Part XA, Freedom of Association, of the WR Act. The benefit conferred by the order we propose to make is not dependent on any of the named individuals being a member (or not being a member) of an industrial association.

[176] Two other matters arise for determination in relation to the form of the order we propose.

[177] The first concerns the parties to the order. The CFMEU is seeking an exceptional matters order binding on the:

[178] The evidence in this case clearly establishes that Hail Creek Coal is the present and proposed employer of all production and engineering staff employed at the Hail Creek mine. The Hail Creek joint venture partners have entered into a service agreement with Pacific Coal to provide management services to Hail Creek Pty Ltd. The senior management team at the Hail Creek mine is employed by Pacific Coal.

[179] Hail Creek Management Pty Ltd finances projects, it does not employ any staff.

[180] There is a joint venture between Marubeni Pty Ltd, Sumisho Coal Developments Pty Ltd and Queensland Coal Pty Ltd to develop, market and sell coal taken from the Hail Creek mine. The Hail Creek Project describes this process.

[181] Given the roles of the various entities we do not think it appropriate to make an order binding Pacific Coal, Hail Creek Management Pty Ltd and the Hail Creek Coal Project. In the event of a change in circumstances application may be made to vary the order. The parties to the order we will make will be the CFMEU and Hail Creek Coal.

[182] The second matter concerns date of effect. The CFMEU contends that a retrospective date of operation is warranted. It is proposed that the order should operate from 13 December 2002, which is the day after the decision of the Pacific Coal Appeal Bench. It is said that this date was selected in order to avoid any suggestion of double dipping on behalf of the 16 former Blair Athol employees. A number of points were advanced in support of the CFMEU's contention,105 including:

[183] We are not persuaded by the CFMEU's submissions on this point. It seems to us that the matters raised by the CFMEU need to be balanced against the unfairness in requiring Hail Creek Coal to increase the number of its employees by 16, potentially resulting in the redundancy of other employees. It is also relevant that the respondent's timetable for filling the positions was well in place before the CFMEU's application was made on 7 February 2003.

[184] The order we propose will operate from the date of this decision.

BY THE COMMISSION:

VICE PRESIDENT

Appearances:

B. Docking of Counsel with P. Pasfield and A. Bukarica for the Construction, Forestry,

Mining and Energy Union.

F. Parry of Counsel with H. Tuck for Pacific Coal Pty Limited, Hail Creek Coal Pty Ltd

and Hail Creek Management Pty Limited.

Hearing details:

Before Vice President Ross:

2003.

Sydney, Brisbane - video hearing:

February 14.

Before Full Bench:

2003.

Brisbane:

April 10, 11.

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996

s.99 notification of industrial dispute

Construction, Forestry, Mining and Energy Union

and

Pacific Coal Pty Ltd and Others

(C2003/956)

Coal industry

   

VICE PRESIDENT ROSS

  

SENIOR DEPUTY PRESIDENT DUNCAN

  

COMMISSIONER BACON

MELBOURNE, 25 JULY 2003

Log of claims - terms and conditions of employment.

RECORD OF FINDINGS

This Commission pursuant to section 101 of the Workplace Relations Act 1996, DETERMINES, RECORDS AND FINDS as follows:

1. That there is in existence an industrial dispute within the meaning of the Act.

2. The parties to the industrial dispute are Construction, Forestry, Mining and Energy Union on the one part and Hail Creek Coal Pty Ltd and Dendrobium Pty Ltd on the other part.

3. The subject matters which are in dispute are set out in the Letters of Demand and Logs of Claims from the Construction, Forestry, Mining and Energy Union dated 13 February and 5 March 2003.

4. This dispute extends beyond the limits of any one State of Australia.

BY THE COMMISSION:

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code I>

1 PR902679.

2 PR903256.

3 PR910218.

4 PR914348.

5 (2000) 174 ALR 585.

6 PR925566, per Watson SDP, Kaufman SDP and Smith C, 12 December 2002.

7 Ibid.

8 McLauchlin v Australia Meat Holdings Pty Ltd (1998) 84 IR 1, Print Q1625; Re Newtronics Pty Ltd, Print R4375; Wark v Melbourne City Toyota (1999) 89 IR 132, Print R4864, Henderson v Department of Defence, Print S8591, 28 July 2000.

9 Print PR910218.

10 (1998) 88 IR 21.

11 [S0691] 5 November 1999.

12 [S2686] 25 January 2000.

13 Statement of Mr Paul Michael Davies at paragraphs 42 and 45, Exhibit PC 1.

14 Ibid at paragraph 39.

15 Ibid at paragraphs 59-67.

16 See Mr Duncan's evidence, Transcript 10 April 2003 at paragraphs 1085-1092.

17 Preference in employment and seniority lists have generally been treated as not allowable award matters and outside the terms of s.89A(2). See Re Coal Mining Supervisors, Print R0474, 13 January 1999 per Munro J, Polites SDP and Hodder C; Re Coal Mining Production Award, Print Q1205, 26 May 1998 per Boulton J; Flight Attendants (Domestic Airlines) Award 1985, Print R9932, 11 October 1999 per Wilks C; Re Ansett Airlines of Australia (Pilots) Award 1989, Print R9116, 13 September 1999 per Wilks C.

18 (1999) 93 FCR 317 at 342-343.

19 Print M6302, attached to Mr Barnes' witness statement, Exhibit CFMEU 1, as GB56 at pp 524-532.

20 Annexure TM4 to Exhibit CFMEU 15.

21 Annexure TM5 to Exhibit CFMEU 15.

22 (1998) 87 IR 470.

23 (1992) 174 CLR 345.

24 Transcript, 11 April 2003 at paragraph 1934.

25 See Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd (1993) 113 ALR 448; Transport Workers' Union of Australia v Gate Gourmet Services Pty Ltd, PR917550, 9 May 2002 per Polites SDP, Acton SDP and Holmes C at paragraphs 24 and 47.

26 Caledonian Collieries Ltd v Australasian Coal and Shale Employees Federation (No. 2) (1930) 42 CLR 558; R v Gough; Ex parte BP Refinery (Westernport) Pty Ltd (1966) 114 CLR 384.

27 Caledonian Collieries Ltd v Australasian Coal and Shale Employees Federation (No. 2) (1930) 42 CLR 558 per Isaacs J at 570-571; R v Blakely; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia (1950) 82 CLR 54 at 94 per Fullagar J; R v Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178 at 181; Re Printing and Kindred Industries Union; Ex parte Vista Paper Products Pty Ltd (1993) 113 ALR 421 at 429 per Gaudron J; Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd (1993) 113 ALR 448.

28 R v Cohen; Ex parte Attorney-General (Qld) (1981) 157 CLR 331 at 338 per Gibbs CJ; Australian Tramway and Motor Omnibus Employees' Association v Commissioner for Road Transport and Tramways (NSW) (1938) 58 CLR 436 at 440 per Evatt J; R v Blakely; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia (1950) 82 CLR 54 at 69 and 79.

29 R v Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178 at 182; R v Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1957) 97 CLR 71 at 81.

30 (1993) 113 ALR 421 at 430.

31 See decisions in the period 1957-1993 in C.R. prints Nos. 1034, 1225, 1595, 1604, 3263, 4033, 4151 and 4640.

32 Print C.R. 4640.

33 (1993) 113 ALR 448 at 456-457.

34 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Kirsch (1938) 60 CLR 507 at 538; R v Galvin; Ex parte Amalgamated Engineering Union, Australian Sector (1952) 86 CLR 34 at 40; R v Holmes; Ex parte Victorian Employers' Federation (1980) 145 CLR 68 at 76; Re PKIU; Ex parte Vista Paper Products Pty Ltd (1993) 113 ALR 421 at 432.

35 (1981) 147 CLR 617 at 630, with whom Gibbs CJ, Stephen and Wilson JJ agreed.

36 Set out in summary form at paragraph 12 of Exhibit CFMEU 12.

37 (2000) 174 ALR 585.

38 Majority at paragraph 71, Kaufman SDP at paragraph 167.

39 Exhibit PC 6.

40 (1988) 167 CLR 37 at 42.

41 Ibid.

42 (1992) 15 AAR 519; see also Matusko and Australian Postal Corporation (1995) 21 AAR 9.

43 (1998) 82 FCR 374 (Black CJ, Burchett and Tamberlin JJ).

44 Ibid at 389.

45 (1993) 43 FCR 449

46 Blackman at page 455-56 per Gray J.

47 (1998) 82 FCR 374 at 390.

48 (1939) 62 CLR 464 at 531-532.

49 (1973) 130 CLR 353.

50 Ibid at 453.

51 (1991) 39 IR 24.

52 Ibid at 28.

53 Ibid at 29.

54 (1981) 34 ALR 406 at 413.

55 (1999) 164 ALR 73 at 97.

56 (2000) 172 ALR 611.

57 [2002] FCA 882 at paragraph 77.

58 Ibid at paragraph 79.

59 See Craig v State of South Australia (1995) 184 CLR 163 at 179; Kowalski v Trustee, Mitsubishi Motors Australia Limited Staff Superannuation Pty Ltd [2003] FCAFC 18.

60 See Dalrymple Bay Coal Terminal Pty Ltd and others, Print N0224, 20 March 1996 per Ross VP, Hancock SDP and Bacon C; Re The Motor Inn, Motel and Accommodation Association, Print M8072, 22 December 1995 per Ross VP, Drake DP and Gay C.

61 Mills v Cooper [1967] 2 QB 459 at 467 per Lord Diplock; Queensland v The Commonwealth (1977) 139 CLR 585 at 614-615 per Aickin J; Rogers v The Queen (1994) 181 CLR 251 at 274 per Deane and Gaudron JJ.

62 Blair v Curran op cit at 531 per Dixon J.

63 In this regard it is said that issue estoppel is justified by the same policy considerations that give rise to res judicata: Rogers v R (1994) 181 CLR 251 at 274 per Deane and Gaudron JJ.

64 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 605 per Murphy J; Rogers v R (1994) 181 CLR 251; Lockyer v Ferryman (1877) 2 App. Cas. 519.

65 PR925566 at paragraph 57.

66 Ibid at paragraph 55.

67 Ibid at paragraphs 29, 30 and 38.

68 Ibid at paragraph 38.

69 Ibid.

70 Ibid at paragraph 36.

71 Ibid at paragraph 36.

72 Exhibit PC 6.

73 Witness Statement of Mr Davies, Exhibit PC 1, at paragraph 10 and PMD1.

74 Ibid at GB14-GB19; Witness statement of Mr Maher, Exhibit CFMEU 15.

75 Witness statement of Mr Barnes, Exhibit CFMEU 1 at paragraph 44 and GB24.

76 Ibid at GB4. Pacific Coal employees selected to travel to the US covering operators, maintainers, supervisors and superintendents (Pacific Coal "OUT OF SITE").

77 Exhibit CFMEU 6.

78 Exhibit CFMEU 10 at paragraph 22.

79 See Annexures A and B to Mr Barnes' supplementary statement, Exhibit CFMEU 2.

80 Witness statement of Mr Barnes', Exhibit CFMEU 1 at paragraph 38.

81 Transcript, 10 April 2002 at paragraphs 766-767.

82 Ibid at paragraph 774.

83 Ibid at paragraphs 800-801 and see generally Exhibit CFMEU 2 at paragraphs 8-11.

84 Mr Rodgers, Transcript 10 April 2003 at paragraphs 807-816; Mr Cusack at paragraphs 824-832; Mr Smith at paragraphs 833-837; Mr Appleton at paragraphs 850-878; Mr Albert at paragraphs 880-883; Mr Finger at paragraphs 8930894 and Mr McGuiness at paragraph 907.

85 Exhibit PC1.

86 Transcript 10 April 2003 at paragraphs 418-422.

87 (2003) 196 ALR 660.

88 Ibid at paragraphs 77-78.

89 Annexure PMD 3 to Exhibit PC 1, Mr Davies' witness statement.

90 See Mr Davies' evidence at paragraphs 387-389 of the Transcript of 10 April 2003.

91 Ibid at paragraph 389.

92 See the supplementary statements of Messrs Kelly and Finger, Exhibits CFMEU 7 and 9. Also see Mr Bates' evidence before the reconstituted Pacific Coal Full Bench at paragraphs 5191-5195.

93 Evidence of Mr Bates in the proceedings before the reconstituted Pacific Coal Full Bench, Transcript, 11 June 2002 at paragraph 5348.

94 Mr Barnes' statement, Exhibit CFMEU 1 at paragraph 194.

95 Australian Collieries' Staff Association v Gordonstone Coal Management Pty Ltd, Print R0474, 13 January 1999 per Munro J, Polites SDP and Hodder C at paragraph 22.

96 Pacific Coal's written reply submission at paragraph 157.

97 Exhibit PC 6 at paragraph 158.

98 (1987) 61 ALJR 393 at 395.

99 Re Crown Employees (Teachers Locality Allowance) Award [1981] AR(NSW) 1017 at 1049.

100 See generally paragraph 166(a)-(i) of Pacific Coal's written submissions, Exhibit CFMEU 34.

101 Print R0474, 13 January 1999.

102 Australian Federated Union of Locomotive Enginemen v State Rail Authority of New South Wales (1984) 295 CAR 188. Also see Australian Federation of Air Pilots v Qantas Airways Limited, Print P1218, 26 May 1997 per Polites SDP, Acton DP and Blair C.

103 CFMEU v AIRC (1999) 93 FCR 317 at 337-338 per Wilcox and Madgwick JJ.

104 Exhibit PC 6 at paragraph 72.

105 See CFMEU submissions. Exhibit CFMEU 34 at paragraphs 97-99, submissions in reply at paragraph 83 and Exhibit CFMEU 25, supplementary submissions at paragraphs 10-17.

106 See Exhibit PC1, Annexure PMD10.