Cumnock No 1 Colliery Pty Ltd v Construction, Forestry, Mining and Energy Union

[1998] FCA 252

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - Industrial award - Interpretation - “Last on, first off” provision - Meaning of “different classes of work” - Applicant operates both open cut and underground mine - Whether work in one location falls within a different class to corresponding work in the other location.

Workplace Relations Act 1996 - s 413
Coal Mining Industry (Production and Engineering) Consolidated Award 1997 - cll 16 and 18

CUMNOCK NO.1 COLLIERY PTY LTD v CONSTRUCTION, FORESTRY, MINING & ENERGY UNION

NG94 OF 1998

JUDGE:         WILCOX J
PLACE:         SYDNEY
DATE:           23 MARCH 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG94 of 1998

BETWEEN:	CUMNOCK NO.1 COLLIERY PTY LTD Applicant
AND:	CONSTRUCTION, FORESTRY, MINING & ENERGY UNION
Respondent

JUDGE:	WILCOX J
DATE OF ORDER:	23 MARCH 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. It be declared that, on the true construction of clause 16.2 of the Coal Mining Industry (Production and Engineering) Consolidated Award 1997 and for the purposes of application of the principle described in the said sub-clause as “the last to come the first to go”, work performed by production employees in the applicant’s Cumnock South Open Cut mine does not constitute a different class of work to work performed by production employees in the applicant’s Cumnock underground mine.

1. It be declared that, on the true construction of clause 16.2 of the Coal Mining Industry (Production and Engineering) Consolidated Award 1997 and for the purposes of application of the principle described in the said sub-clause as “the last to come the first to go”, work performed by engineering employees in the applicant’s Cumnock South Open Cut mine does not constitute a different class of work to work performed by engineering employees in the applicant’s Cumnock underground mine.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG94 of 1998

BETWEEN:	CUMNOCK NO.1 COLLIERY PTY LTD Applicant
AND:	CONSTRUCTION, FORESTRY, MINING & ENERGY UNION Respondent
JUDGE:	WILCOX J
DATE:	23 MARCH 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J: This is an application, pursuant to s 413 of the Workplace Relations Act 1996 (formerly the Industrial Relations Act 1988), for an interpretation of an award made under that Act, the Coal Mining Industry (Production and Engineering) Consolidated Award 1997 (“the award”). The applicant is a coal mining company, Cumnock No.1 Colliery Pty Ltd (“Cumnock”). The respondent is Construction, Forestry, Mining & Energy Union (“CFMEU”). Section 413 provides:

“(1)     The Court may give an interpretation of an award on application by:

(a)       the Minister; or

(b)       an organisation or person bound by the award.

(2)The decision of the Court is final and conclusive and is binding on the organisations and persons bound by the award who have been given an opportunity of being heard by the Court.”

It is common ground that Cumnock is a person bound by the award and, therefore, a competent applicant.

The award and industrial agreements
As its name suggests, the award is a consolidation (and modernisation) of earlier awards.  It applies to persons engaged in work performed in the coal mining industry in New South Wales, Queensland and Tasmania, whether in underground or open cut operations.  The award deals with many matters but, for present purposes, it is necessary to refer only to clauses 16 and 18.  Clause 16 is headed “Redundancy”.  Sub-clause 16.1 contains requirements for discussions before terminations on the ground of redundancy.  Clause 16.2 is the provision whose interpretation is in current dispute.  It reads:

“16.2  Reduction of Hands

When a reduction of hands is decided upon by the employer it shall be regulated by the principle ‘the last to come the first to go’ in the respective classes of work according to length of service at the mine.  Provided that if with regard to any mine an agreement is arrived at between the employer and the appropriate union, such agreement will bind such members notwithstanding that it may be inconsistent with the foregoing provisions of this clause.”

The word “mine” is defined by cl 5.1.2 of the award as meaning “any mine, operation or establishment”.

Sub-clause 16.3 deals with severance pay, and sub-cll 16.4 and 16.5 with retrenchment pay.  They are not presently material.

Clause 18 of the award is headed “Classifications and Wage Rates”.  It contains sub-cl 18.2 which sets out minimum wage rates for each of 10 groups of classifications of employees and makes a special rule about sites that have implemented the National Underground Work Model.  The detail of cl 18 does not matter; in relation to Cumnock’s operations, its provisions have been superceded by a workplace agreement, made in June 1996, called “Cumnock Operations Workplace Agreement”.  That agreement envisages multi-skilling of employees and a drastic reduction in the number of their separate classifications.  It includes cl 7 headed “Contract of Employment” which reads:

“7.1The Company may reasonably require an employee to carry out any duties within the employee’s recognised skills, streams, competence and training, and to use such equipment and tools as are appropriate to those duties.

7.2The Company shall not direct an employee to carry out any duties for which the employee does not have the skills, competence and training, but may provide, or arrange to be provided, such training as is necessary to equip the employee with the skills required to carry out those duties safely.

7.3An employee shall perform such work as the employer may reasonably require, including work which is incidental and peripheral to the employee’s main task.”

Clause 9 deals with wages.  It provides a standard weekly “base rate” for all employees, other than new starters, apprentices and youths, of $735 together with a standard hourly overtime rate.  The clause makes no distinctions based on work classification.

Annexed to the workplace agreement are three ancillary documents:  a bonus agreement which is not presently relevant, and agreements relating to two sites within the colliery, the South Open Cut and the Underground Site.  Each of the last mentioned agreements opens with a clause stating it is to be read in conjunction with the Cumnock Operations Workplace Agreement, it “represents the work specific conditions” of the relevant site and it is not to “form any basis for forced redundancies at the mine”.

The Open Cut agreement deals with matters such as shift change procedures, cross-skilling and training, and the use of contractors.  It also provides, by cl 4, that employees at the Open Cut are to be designated as either “Production” or “Engineering” stream employees, and all employees are to be trained in all aspects of the work of their designated stream and are expected to undertake them all.

The Underground Site agreement covers similar topics but descends to greater detail in relation to the composition of work teams, no doubt for safety reasons.  It also recognises two “streams” of employees, production and engineering, and provides for cross-skilling and training.

The facts
Cumnock is the holder of a coal lease over an area of land at Ravensworth, in the Hunter valley of New South Wales, from which it produces semi-soft coking coal and  thermal coal.  The company purchased the lease in October 1991.  At that time the only mining operation within the leased area was an underground mine.  However, in April 1992 Cumnock commenced an open cut mine in the leased area.  It became known as “No.1 Open Cut” and was the subject of an agreement with the United Mineworkers Federation of Australia, the industrial organisation then representing mine workers, containing these terms:

“1.Union coverage of the non-staff employees at Cumnock No.1 Open Cut will be held exclusively by the United Mineworkers.

2.Appropriate training will be provided for the United Mineworkers employees at Cumnock No.1 Colliery, with the intention of those employees gradually taking over the manning of the open cut from contractor’s employees, as skills and experience are gained in future stages of open cut mining.

3.Negotiations will continue between the parties to formulate an enterprise agreement for the operation of the open cut mine.  This agreement will deal with matters such as pay and conditions, flexibility of operations, training and manning, among others [sic] issues.”

Pursuant to the agreement some 30 employees transferred from the underground mine to the open cut operation.  The company offered employees the opportunity to transfer in accordance with their seniority (length of service) with the company.

In January 1994 Cumnock opened a second open cut mine.  It became known as “South Open Cut”.  Underground employees were again offered the right to transfer according to their relative seniority.  Those employees were supplemented in July 1994 by employees transferred from No.1 Open Cut, which then closed.

The practice of transferring underground miners to South Open Cut ceased early in 1995.  Since then any needed additional employees have been new employees recruited because of their previous open cut mining experience.

In November 1997 Cumnock decided to reduce by 24 the number of its open cut production employees.  In implementing that decision, it acceded to a demand from CFMEU that it apply the “last on, first off” principle across its entire production workforce.  As a result of Cumnock having applied the seniority rule in offering positions at the open cut mine, most open cut production employees were long-serving employees, senior to the production employees working underground.   Cumnock fixed to the notice board at the open cut mine a list of all open cut production employees in order of seniority, with a notation against the bottom 24 names that they were to be transferred to the underground mine.  In order to make room for those employees, the company retrenched 24 underground production employees, all of whom were junior to those being transferred from the open cut.

In early February 1998 Cumnock announced a decision to close the South Open Cut mine and to retrench all 66 employees working there.  It proposed to terminate 15 employees at the end of March and the remainder in June, when operations would finally cease.

CFMEU took the position that cl 16.2 of the award required Cumnock to apply the “last on, first off” principle across the entire workforce in each of two streams, production and engineering, regardless of employees’ particular work location.  Having regard to the relative seniority of most of the open cut employees, this would mean most of the persons selected for retrenchment would be people currently working in the underground mine; their places would be taken by more senior employees moved over from the open cut mine.  Cumnock did not agree with this position.  It contended work within the open cut mine fell within a different class to work within the underground mine.  Consequently, it was inappropriate to apply a common seniority approach, spanning both operations; the open cut mine should be considered on its own and, as it was to be closed completely, there was no scope for operation of the “last on, first off” principle.  Because CFMEU disagreed, Cumnock brought this proceeding seeking an interpretation of cl 16.2

There is a deal of evidence about the necessity for training people newly introduced (or reintroduced) to underground mining and the extent of the underground experience of the employees who would be transferred from the open cut mine to the underground mine, on CFMEU’s approach.  I need not detail this evidence.  As might be expected, new underground miners receive training in relation to safety matters and emergency procedures.  They must also be instructed in the use of underground equipment, which differs from open cut equipment.  According to Jeffrey John Gerard, Cumnock’s Operations Manager, the required training may extend over months.  However, Mr Gerard conceded the length of time before training was completed was directly related to the resources (personnel and equipment) committed to training by the company.  In relation to the November 1997 transfers, priority in the use of resources was given to production rather than training, so the training of some transferred employees is not yet complete.  Notwithstanding this, high production levels are being achieved.  One five-man team, that includes four men transferred from the open cut in November 1997, has set two records for longwall development in the underground mine.  Most, if not all, the prospective transferees have had extensive underground experience.

Background decisions
Counsel for Cumnock, Mr J Trew QC and Mr J Fernon, took me to a number of decisions that constitute a background to consideration of the meaning of cl 16.2 of the award.  None of them is determinative of the present issue but some provide useful insights.

The earliest of these decisions is Illawarra Colliery Employees’ Association v The Southern Colliery Proprietors’ Association [1902] AR 70. In that case the Court of Arbitration of New South Wales made an award that included a clause (cl 25) adopting the “last to come, first to go” principle for redundancies. The clause did not specify the composition of the pool of employees amongst whom the principle was to be applied. However, the Court addressed that issue in Banks v North Bulli Colliery [1905] AR 289. This was an appeal from a decision of a magistrate dismissing an information alleging a breach of cl 25. The colliery had retrenched an employee named Smith, who was a miner, while retaining the services of one Anderson, a shiftman. Smith had been employed at the colliery longer than Anderson. On the appeal two points were argued, the second being “whether the principle is to be of general application throughout the mine irrespective of classification, or whether its true meaning is not that it should have application having regard to the classes of employees”. The Court preferred the latter interpretation. The President, H E Cohen J, said at 291-292:

“I have arrived at the conclusion, after a very lengthy discussion of the matter, that the last to come the first to go must mean having regard to the different classes of employees.  The principle would then work automatically.  You get each class of employee.  The management determine whether all or a portion of that class should be dismissed, and, when that is so determined, the application of the principle is perfectly clear.  If the principle were to be applied generally, without respect to classes, it would involve an elaboration of detail running from the highest to the lowest class of employees, which I am sure the Court never intended.  I am quite prepared to draw a distinction between surface employees as one body, and underground employees as another, but what I desire to say is that, from the discussions we have had as to the applicability of this particular condition, as to its being applied generally throughout the whole of the employees - in the one case to those on the surface, and in the other to those underground - there would be so much detail involved that I should have required to have considered very seriously whether I would have given consent to this principle without some evidence before me on one side or the other.”

The President did not explain what he meant by “surface employees”.  I think it would be erroneous to understand this as a reference to miners working in an open cut mine, something that is unlikely to have existed at Bulli in 1905.  I think he was referring to administrative and support staff rather than miners.

It appears that, by 1983, the type of clause inserted in the Illawarra award had become common in the mining industry.   On 8 February 1983 the Coal Industry Tribunal determined an application by the Australian Collieries Staff Association for the insertion in the Collieries Staff Award of a redundancy clause:  see Australian Collieries Staff Association v New South Wales Coal Association, unreported.  It is not necessary to set out the form of the clause proposed by the applicant; the Tribunal did not accept that form.  But it is pertinent to mention two points about the case.  First, the Tribunal noted (at 1) evidence “that one of the matters which affected staff was that there was movement from one location as an employee of a company to another.  Very few clerical people stay at one place for the whole of their career ... and surveyors also moved from place to place”.  So the Tribunal was concerned with an application relating to a mobile workforce.  Yet, and this is the second point, the Tribunal was prepared to make a provision dealing with classes of work without reference to locality.  At 6 the Tribunal said:

“I am satisfied that the only practical provision for an award in the circumstances put to me by the parties is to accept the decision that a position - or number of positions - are affected and to deal with that position.  In other coal mining awards the phrase used is ‘class or classes of work’.  That appears suitable in this case as the description of the area affected.  In the light of the evidence I stipulate that this shall mean the class of work being done, not the award classification.  Thus if secretaries, paid as clerks, are to be retrenched the class is secretaries, not clerks.  Of course the immediate replacement of a retrenched secretary by a clerk would indicate that the class was that of clerks.”

It seems that, if there was to be a retrenchment of secretaries, the relevant class consisted of persons employed as secretaries regardless of their place of employment.

Reference was made to a decision of the Local Coal Authority, Australasian Coal & Shale Employees’ Federation (Northern District Branch) v BP Coal Development Australia Pty Ltd, unreported 2 October 1987.  It deals with common seniority for retrenchment purposes, as between an underground and open cut mine.  However, the decision turns on an express agreement between the parties for common seniority.  It does not assist resolution of the present case.

Australian Collieries’ Staff Association v Coal & Allied Operations Pty Limited (24 November 1992) was also a Local Coal Authority decision.  It concerned the retrenchment of an adult clerk, Ms Kehane, in preference to a senior clerk, Mr Gallimore.  Ms Kehane had been employed by the respondent longer than Mr Gallimore.  The Authority accepted a submission that “class of work” referred to “the class of work being done, not the award classification”; so it was possible for an adult clerk and senior clerk to be in the same class of work.  However, it held that, in order to take over Mr Gallimore’s work, “Ms Kehane would require lengthy training to an extent which renders her in a different class of work from Mr Gallimore”.

Finally, there is a decision of Deputy President Duncan of the Australian Industrial Relations Commission, the person who previously constituted the Coal Industry Tribunal, in Australian Collieries’ Staff Association v Coalex Pty Ltd, 20 July 1995.  The question was whether Coalex had unfairly retrenched an employee named Williams.  Amongst other things, it was said the company had contravened an award provision requiring it to have regard to “length of service at the mine”.  Mr Williams had been employed as the company’s shipping and transport officer.  On his termination, his duties were dispersed among a number of employees.  The Deputy President drew attention to what he had said in the New South Wales Coal Association case and added:

“In this case that means that if shipping and transport officers, paid as chief clerks, are to be retrenched the class is shipping and transport officers not chief clerks or any other classification.  There has been no immediate replacement by a clerk or anyone else.  The duties of the job have been redistributed over a wide range of occupations and that means the last sentence from the quotation does not apply.”

The last sentence was that relating to secretaries and clerks set out above.

Conclusions:  preliminary matters
Before dealing with the main issue between the parties, it is appropriate to deal with two preliminary points taken by Mr S Crawshaw, counsel for CFMEU.  First, he says no account may be taken of the terms of the two site agreements annexed to the Cumnock Operations Workplace Agreement, the reason being the statement in each site agreement that the agreement and its conditions “will not form any basis for forced redundancies at the mine”.  Mr Crawshaw argues this excludes any reference to the agreements, in considering the application of cl 16.2 of the award.  I do not agree.  The existence of the workplace agreement, and its annexures, and their terms are matters relevant to a factual determination of what constitutes “classes of work” at the two sites.  They cannot sensibly be disregarded.  I think the purpose of the quoted provision is to exclude reliance being placed on the terms of a site agreement as a justification for a decision to terminate employees on the ground of redundancy; for example, because of some operational practice required or sanctioned by the site agreement.  But that is not the basis of the 66 terminations now proposed by Cumnock; those terminations will flow from the company’s decision to close the open cut mine.

Secondly, Mr Crawshaw submits it is inappropriate to make an interpretation order under s 413 where there is a dispute as to relevant facts. I agree with that submission, as a matter of general principle. But I do not think it applies to this case. As Mr Trew suggested in argument, the only factual issue that was raised by the evidence concerned the extent of training required to equip open cut production employees to undertake underground mining. Even that issue substantially disappeared when Mr Gerard conceded the training period he cited substantially reflected the low priority given to training in the allocation of resources. I do not think there remains any significant factual issue between the parties. It is not inappropriate to deal with the case under s 413.

Conclusions:  the central issue
Counsel for Cumnock say the evidence demonstrates there is a discrete class of work called “open cut work”; the skills required for this work differ from those required for underground mining.  In support of that contention, they refer to the detail of Mr Gerard’s evidence respecting the equipment used in each location.

Mr Crawshaw accepts the equipment used in an underground operation differs from that used in an open cut operation.  But he says this difference relates more to size than essential character.  In each operation the coal is won by mechanical means (not blasting) and transported in shuttle cars (underground) or road trucks (open cut) to the washing place.  John William Sinclair, a fitter and turner employed at the mine since 1974, gave evidence that he had worked both underground and in the open cut operations and throughout had “performed the same or similar type work”.  He said in his affidavit:

“15.I know of no piece of equipment presently in operation at the underground mine that I have not or would not be able to maintain and fit.

16.As an employee I am required to maintain and fit all the equipment that is in operation in the opencut section of the mine.  When I was working underground I was required to perform similar functions.  Even though the type of equipment varied the work I was required to perform on the respective pieces of equipment was similar.

...

22.Most equipment operates on similar principles and we are required to perform fault findings on equipment and are required to have a working knowledge of hydraulics and phnematics [sic], this is vital for both the opencut and the underground.

23.The work performed in the opencut is similar in the break-up of repairs, fitting and maintenance as in the underground with the exception the plant and equipment is a lot larger with a greater emphasis on planned maintenance.”

It seems to me the notion underlying the industrial decisions to which I earlier referred is interchangeability; employees cannot be regarded as belonging to the same class of employees, for the purpose of a “last on, first off” provision, unless they are reasonably interchangeable.  The concept of reasonable interchangeability accepts the possible need for some training, but not training so extensive as to make the use of the new employee commercially or industrially infeasible.  As a question of degree arises, opinions may differ in particular cases as to whether the required training is or is not unduly extensive.

In the present case there is no doubt about interchangeability.  Mr Sinclair gave evidence that, when he was moved across to the Open Cut No.1 mine, the then Mine Manager, Gerard O’Hagan, told him the open cut would operate only for a few months and he (Mr Sinclair) would then return underground.  [As it happened, the mine operated for a longer period because of a later extension of its area.]  His evidence of Mr O’Hagan’s attitude is confirmed by a letter Mr O’Hagan sent on 22 December 1993 to Warren Cook, the then Lodge Secretary at the Colliery, in which he said:

“Following our recent discussions on the manning of the open cut mine and other related issues, I would like to formally state the Company’s position on seniority.  Cumnock No.1 Colliery Pty Limited recognises that gate seniority applies to all United Mineworkers employees at Cumnock.

In statutory terms there is one open cut mine, Cumnock Open Cut Mine.  There are two operating units within that mine, i.e. Cumnock No.1 and Cumnock South.  In the same way that no difference in seniority exists between separate units or seams in the underground mine, no difference in seniority exists between the two open cut pits.

It is vital that in the next six months in particular, open cut output, productivity and training opportunities are maximised.  In order to achieve this objective it will be necessary to deploy the people within the open cut to the best possible advantage.”

It seems the company desired maximum flexibility to deploy its personnel to its best advantage and, towards that end, was prepared to concede there was interchangeability between its underground and open cut operations and there should be a common seniority roll.

Mr O’Hagan’s attitude was further confirmed by evidence of Gregory Swancott, a production employee who was one of the 24 people transferred back to the underground mine from the open cut mine in late 1997.  He recounted how he was recruited by Mr O’Hagan as a temporary employee but with a prospect of permanency.  Mr O’Hagan said to him:

“You will be working at the opencut section of the mine but if you go permanent you will be moving between the opencut and underground depending on how the trialing of the opencut works out.”

Mr Swancott said Mr O’Hagan elaborated on this by saying:

“We want to be able to turn on and off the opencut operation when it suits the production so you may all be required to work between the opencut and the underground.  Occasions may arise when we don’t want to produce coal from the opencut and then you will be working in the underground. ... There will be occasions when we need to lift production in the opencut to cover down time with the longwall and if the longwall is firing you may be required to do underground development work.”

Mr Swancott was made a permanent employee in August 1994.  The attitude taken by Mr O’Hagan was then still Cumnock’s position.  This is evident from the letter of appointment sent to Mr Swancott which included this paragraph:

“Your place of work will initially be in the mine’s open cut operations and your wages and conditions of work will be as per the Coal Mining Industry Interim Consent Award (Production and Engineering), 1990 and the Cumnock No 1 Open Cut industrial agreements.  However you may be deployed to work in the underground mine at some stage, depending on future production and manning requirements.”

David Sellars, the current Union Lodge Secretary for Cumnock No.1 Union Lodge has worked as a production employee at Cumnock since 1984.  He gave extensive affidavit evidence about the deployment of employees, including the use of seniority in determining offers to move to the open cut mine.  He also said:

“The company has utilised the agreement about movement between the opencut section of the mine and the underground.  Not only was it used as a mechanism for determining retrenchments in the November 1997 reduction in hands across the mine but it has also been used on a number of occasions in the general operation of the mine.  When the opencut wasn’t producing for a number of reasons, most notably from my recollection due to the weather, employees were allocated to work in what was generally understood to be the underground section of the mine.  They were allocated to surface work in the underground area and also to perform functions underground.  This happened on a number of occasions.  Production employees were also required to do box moves in the underground including an overtime shift underground.”

In the light of this evidence, it seems to me incontestable that there is a high degree of interchangeability of employees as between the underground mine and the open cut.  This can only be because each particular type of employee - that is, a production employee on the one hand or an engineering employee on the other - is performing the same class of work regardless of location.

Orders
Cumnock filed an amended Application in which it sought the following orders:

“1.An order and declaration that on the true construction of clause 16.2 of the Coal Mining Industry (Production and Engineering) Consolidated Award December, 1997 (‘the Award’), work performed by employees in an open cut mining operation constitutes a different class of work to work performed by employees in an underground mining operation for the purposes of identifying employees to be retrenched applying the principle of ‘the last to come the first to go’ in the respective classes of work according to length of service at the mine.

1A.Further or alternatively to paragraph 1 above, an order and declaration that upon that true construction of clause 16.2 of the Award and in the events which have happened, work performed by employees in the open cut mining operation carried on by the Applicant constitutes a different class of work to that performed by employees in the underground mining operation carried on by the Applicant for the purposes of identifying employees of the Applicant to be retrenched by applying the principle of ‘last to come the first to go’ as set out in the said clause.”

Even if Cumnock’s argument had proved successful, I would not have made orders in this form.  In relation to order 1, I do not think it is desirable to make a general order and declaration about the relationship between open cut mining and underground operations.  The evidence has focused on Cumnock; the situation in other mines may be materially different.  Any declaration should relate specifically to Cumnock.

In relation to order 1A, I note this includes a reference to “the events which have happened”, without identifying them.  It is undesirable to make a declaration in such a form.  A reader of the declaration should be able to understand its import without needing to inquire into unstated facts.

Having regard to the conclusion I have reached, I have considered whether I ought to make any declaration or simply to dismiss the proceeding.  On balance, I think it preferable to make a declaration stating the conclusion I have reached.  Accordingly, I propose to declare that, on the true construction of the award, work performed by production employees and engineering employees, respectively, at the applicant’s Cumnock South Open Cut Mine does not constitute a different class of work to work performed by similar employees in the applicant’s Cumnock underground mine.

I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox

Associate:

Dated:             23 March 1998

Counsel for the Applicant:	J Trew QC and J Fernon
Solicitor for the Applicant:	Freehill Hollingdale & Page
Counsel for the Respondent:	S Crawshaw
Solicitor for the Respondent:	CFMEU (Mining & Energy Division)
Date of Hearing:	17 March 1998