PN1

DEPUTY PRESIDENT KOVACIC: Good morning, everybody. Are there any changes in appearances?

PN2

MR Y SHARIFF: There are no changes in appearance, thank you.

PN3

DEPUTY PRESIDENT KOVACIC: Thank you.

PN4

MR TAYLOR: There are on our side, just that Mr Fagir was unable to be here today and so Adam Guy from APESMA will be at the Bar table with me.

PN5

DEPUTY PRESIDENT KOVACIC: Mr Taylor and Mr Guy.

PN6

MR SHARIFF: Yes, thank you. Your Honours, where we were at is that my side was to call the next witness, Dr Adam, who was unavailable on the last hearing date. Dr Adam is here. What we propose to do is proceed with his evidence. There is cross-examination on that. Once that concludes I propose to deal with the tender of some further documents, and your Honours should have received a supplementary statement from Mr Gunzburg. And then once we tender those documents we'll move straight into closing submissions.

PN7

DEPUTY PRESIDENT KOVACIC: Fine. Look, I had – and this might go to some of the documents which you might be proposing to tender later today, but perhaps a couple of housekeeping issues.

PN8

MR SHARIFF: Yes.

PN9

DEPUTY PRESIDENT KOVACIC: One of the matters that we canvassed at the tail end of the last hearing was the possibility of the parties conferring to look to develop what might be an agreed statement of facts as to the basement on which accident pay is paid in those other awards that provide for accident pay. I just wanted to clarify whether the parties had had the opportunity to do that.

PN10

MR SHARIFF: Yes, thank you, Deputy President. I had seen a table of the awards that had been prepared by my side. I understand that that table has been sent to our friend's side of the record and they had asked for an additional award to be included. The table which I can provide now - - -

PN11

DEPUTY PRESIDENT KOVACIC: If it's more convenient to do it later this morning I'm happy. Whatever works.

PN12

MR SHARIFF: I can provide it now. What we can say is that this table represents the consent position of the parties as to the full extent of awards that the parties have been able to identify, the awards that contain accident pay provisions. And your Honours will see that the first set of awards from page 1 through to 9 are ones where the maximum quantum is of a 26 week entitlement, and then at page 9 you will see there's a single award that has a 39 week entitlement, and then your Honours will see from page 10 to the end, there are a handful of awards that have a 52 week entitlement. As part of what I was proposing to address your Honours on in closing submissions was to take your Honours to the accident pay provisions which we have extracted from each of these awards, and your Honours will see that the accident pay provisions fall into three categories:- one, they're payable by reference to what an employee would have earned on paid personal leave, but excluding over award payments; a second category is, the rate of pay is that payable by reference to the classification rate of pay, excluding above award payments; and a third is by reference to slightly different concepts such as ordinary time weekly rate of pay, excluding over award payments. That formulation of excluding over award payments seems to have as its genesis the decision of the Full Bench in the 2015 case, which I was proposing to take your Honours to. And the award that we're dealing with her, the Black Coal Mining Award, has a different formulation for the first 39 week component altogether. And the second 39 week component which is more commonly the award classification rate. The way we see the distinction between what is the paid personal rate the award classification rate is, we say no different than the different awards, and I was going to come to expand on why we say that that's the case. But there's a bit of history to that which I need to take your Honours to in the decision.

PN13

So what I can say is, happily the parties are at least agreed that these are the universe of awards. I think we can also say happily that they are the categories, I think, of a differential way payment has been expressed. I'm not sure that we have yet matured to the position where we are in agreement necessarily about what the words mean but that's a matter we can address on. And that has obviously some consequences for what are the variations that we put and alternatives that might flow from that but we'll address that in due course.

PN14

DEPUTY PRESIDENT KOVACIC: That might be a matter for submissions, so thank you.

PN15

MR SHARIFF: May it please.

PN16

DEPUTY PRESIDENT KOVACIC: Thank you for the parties for doing that. Another issue that I have, and it probably goes to – one of the questions that Deputy President Bull asked on the last occasion was a question as to the proportion of the industry that CMIEG represents. My assumption is, having read Mr Gunzburg's third witness statement is that that witness statement is directed at responding to that particular question.

PN17

MR SHARIFF: Yes, that is right.

PN18

DEPUTY PRESIDENT KOVACIC: All right.

PN19

MR SHARIFF: And the force of that evidence, and I should have clarified this with my friend but I didn't anticipate that Mr Gunzburg was going to be required for any cross-examination on the third statement but if one accepts that, then as I understand Mr Gunzburg's evidence there are, at most recent count, something in the order of 34,000 employees, almost 35,000 employees, that are collectively employed by the 14 employers that have collectivised, together, loosely call it, coal mining industry employers group, and that, we say, represents the vast majority of the employees that are engaged in the coal mining industry within the broader definition, but that's the best definition we can get for the purposes of any statistical data. And if one looks at the broader definition and the number of employees employed in the broader definition, that is my – each of my clients, the 14, represent the vast majority, in fact, the majority of the employees in the industry.

PN20

DEPUTY PRESIDENT BULL: Mr Shariff, where do we find, if we can, the statistics on how many employees are actually covered by that Coal Mining Award?

PN21

MR SHARIFF: I don't think, Deputy President, that there is any such data available. The best data we can get is, if I can take you to the Gunzburg statement, at paragraph 3 you'll see that the best data we have of employees who might be engaged in the coal mining industry is from a data set kept by the ABS but that data set is referable to the coal mining industry, and the definition of the coal mining industry picks up the ANZ industrial classification which includes black coal mining and brown coal mining.

PN22

DEPUTY PRESIDENT BULL: Yes.

PN23

MR SHARIFF: So what we don't know is what proportion of the overall coal mining in coal mining industry would be represented by a black coal mining. But Mr Gunzburg says that based on his experience that would be a fair, or a substantial part of the coal mining industry. As he sets out in paragraph 5 the ABS data showed that there were approximately 51,000 employed in 2011. In May 2011 there were 48,000, and that's the best we can do.

PN24

DEPUTY PRESIDENT BULL: But if your clients know how many people they employ in the industry would they not know how many employees they have covered by the award?

PN25

MR SHARIFF: The 14 or so CMIEG members each have various enterprise agreements that would cover employees - - -

PN26

DEPUTY PRESIDENT BULL: Sorry, yes, that's true.

PN27

MR SHARIFF: And so – but that might be a difficulty for them to work out, but I think my instructor is seeking some instructions about that.

PN28

DEPUTY PRESIDENT BULL: So when I say, covered by the award, I'm talking about the award being the default for the BOOT test, I suppose, as well, amongst the - - -

PN29

MR SHARIFF: Yes. Yes. Yes, at this stage I'm not in a position to assist on that question but what we could say is that it would be the vast majority of the 34,000 would be employees who are covered by the Black Coal Mining Award even though the award doesn't apply to them because they might have an enterprise agreement apply to their employment.

PN30

DEPUTY PRESIDENT KOVACIC: Yes. And that would be true of the contractors?

PN31

MR SHARIFF: That would be true of the contractors though the contractors – that raises a technical question that's, I think, beyond the scope of these proceedings because contract labour, depending on what its source is, for example, if it's contract labour supplied by Downer, it raises all kinds of other issues as to crossover with other awards. And those organisations, I just know, notoriously have different views as to whether they are covered or not by a Black Coal Mining Industry Award and there's been some recent Federal Court cases about that, as well (indistinct) industry.

PN32

DEPUTY PRESIDENT KOVACIC: The third housekeeping issue I just wanted to raise, and that's the final one, there is the material that was produced by CMI yesterday in response to the order that was issued earlier this week. The question I have is whether the parties feel as though they've had adequate opportunity to examine that material and reflect upon it in respect of their submissions.

PN33

MR SHARIFF: For my part I feel I've had adequate opportunity to read it. I couldn't say that I necessarily agree that it's an entirely fulsome response, I must say, but that's just for my part, because as my friend pointed out on the last occasion there are two periods of time where the data peaks and troughs. Whilst the CMI response identifies what are not the reasons for that, it doesn't explain what might be the reasons for that and so we're just left with a data set that has these two points in time where there are two differences and unfortunately I'm not in a position to take that any further.

PN34

DEPUTY PRESIDENT KOVACIC: The reason I ask the question is, and it might be something we come back to later today, but whether the parties wish to have some additional time, if I can describe it that way, to perhaps put further submissions in respect of that particular material, given that they would have only had the opportunity to examine it since yesterday.

PN35

MR SHARIFF: Yes, we may well take up that opportunity but it might well depend on where we both respectively land with our closing submissions as to what we wish to put to the Commission.

PN36

DEPUTY PRESIDENT KOVACIC: Sure. We might just come back to that before we finish up today and, sort of - - -

PN37

MR SHARIFF: May it please.

PN38

DEPUTY PRESIDENT KOVACIC: The Bench is in the parties' hands, to some extent.

PN39

MR TAYLOR: Before we go any further, because I'm just not quite sure whether we're dealing with Mr Gunzburg's statement at this stage, or not. There's some things that need to be said about it. I don't know whether this is the appropriate time, whether it's going into evidence or not.

PN40

DEPUTY PRESIDENT KOVACIC: We may as well deal with it now, Mr Shariff.

PN41

MR TAYLOR: Sure. There are two points that can be made, and they can be made by cross-examination or they can be made and my friend can acknowledge them, first in light of some of the questions that have come forward, that when one is talking about the award and its application as against coverage, that the application of the award is much more significant in respect of staff represented by APESMA, who are only in a small number of circumstances are covered by enterprise agreements that would oust the application of the award. The second point to make is that whilst Mr Shariff has suggested that his clients represent the vast majority of those covered, what the statement makes clear is that his clients employ only some of the 35,000 and that a proportion which is unstated are actually contractors. They are not employed by these individual companies and so these companies are not, on their face of the statement, it cannot be said that they're representing a majority of the workers in this industry. They might engage them but they are not the employers of them and they cannot stand here at the Bar table and tell you that they represent the employers of a majority of people, without further evidence. We don't have from the statement an ability for that conclusion to be made. Now that can be dealt with by cross-examination, perhaps, but I think the point can be simply conceded by Mr Shariff without needing to take the time to put Mr Gunzburg back in the witness box. They are the two matters.

PN42

MR SHARIFF: As to the first matter that my friend raises which is the coverage of the Black Coal Mining Award to staff, what my friend says is, I think, accepted. There is some evidence about that. I don't think anything in Mr Gunzburg's statement goes to that matter. As to the second, that, as I said, raises greater difficulty because within what are contractors – I'm sorry, if I could just – within the long-term contractors there is going to be a portion of contractors who are engaged by external contract labour companies and as I identified before, that raises a different area of complexity. The point we are making is that overall, as best we know, the coal mining industry has, as at May 2017, some 48,000 people engaged. If one accepts that that's the broad universe of coal mining industry employees then a portion of those are going to be black coal mining industry employees. I think that can be accepted as objective fact, assuming the statistics to be right. What we then know is that the 14 or so CMIEG employer group members employ people. They certainly employment people in the black coal mining industry. They also engage either directly or indirectly, contractors. To the extent that those contractors are not covered by the Black Coal Mining Industry Award we don't understand what the point is. To the extent that these 14 are the largest employers and represent the largest employers within the black coal mining industry, I don't understand Mr Taylor to be taking an issue with that, at all. And I would have thought between his two clients, that is a point about which we could agree, that these 14 entities represent the largest employers, and by largest, I mean they employ the most amount of employees directly in the black coal mining industry. Surely that can just be accepted as a fact. We accept that there's an issue about contractors but we are not sure why the contractors would matter because there's technical issues about whether they are covered or not. And if my friend wishes to cross-examination on this material, that's his right. But I wasn't dealing with the tender of this document just now but we've noted what he said.

PN43

DEPUTY PRESIDENT KOVACIC: Mr Taylor, would you wish to cross-examine Mr Gunzburg?

PN44

MR TAYLOR: Well, as I said, I think simply that the – I don't need to cross-examination if Mr Shariff accepts that he does not have evidence before this Commission that would satisfy the Commission that his clients employ a majority of the people covered by this award, which was the assertion he made on the basis of this affidavit.

PN45

MR SHARIFF: I think I don't have to resile from that evidence because as I've explained, I – I'd just be repeating myself, I think I've explained it. We've got 14 – just on its face - - -

PN46

DEPUTY PRESIDENT KOVACIC: Can I just interrupt. I think we're in the territory, Mr Taylor, if you want to press that point you're going to have to cross-examine.

PN47

MR TAYLOR: Sure.

PN48

DEPUTY PRESIDENT KOVACIC: So I think we'll work on the basis that Mr Gunzburg will need to give oral evidence.

PN49

MR SHARIFF: Is it convenient to deal with Mr Gunzburg first?

PN50

DEPUTY PRESIDENT KOVACIC: I'm in your hands. It's how you wish to order it. It is not of concern to me. Shall we deal with it first?

PN51

MR SHARIFF: Yes, I think it might be convenient just to deal with it first.

PN52

DEPUTY PRESIDENT KOVACIC: Mr Shariff, whilst Mr Gunzburg is coming up to the witness statement, just in terms of the table that was provided previously - - -

PN53

MR SHARIFF: Yes.

PN54

DEPUTY PRESIDENT KOVACIC: Do you wish to have that marked?

PN55

MR SHARIFF: Yes, that might be convenient.

PN56

DEPUTY PRESIDENT KOVACIC: I will mark it, rather than an exhibit, as a matter for information.

PN57

MR SHARIFF: Yes.

PN58

DEPUTY PRESIDENT KOVACIC: Matter for information no. 1.

PN59

MR SHARIFF: May it please. Thank you.

PN60

THE ASSOCIATE: Please state your full name and address.

PN61

MR GUNZBURG: David Maurice Gunzburg, (address supplied).

<DAVID MAURICE GUNZBURG, AFFIRMED [10.28 AM]

EXAMINATION-IN-CHIEF BY MR SHARIFF [10.28 AM]

PN62

MR SHARIFF: Yes, thank you. Just your full name?‑‑‑David Maurice Gunzburg.

PN63

And your business address?‑‑‑370 Highett Street, Richmond, Victoria.

PN64

You have prepared a third statement for the purposes of these proceedings dated 22 November 2017?‑‑‑That's correct.

PN65

Does that statement, in relation to the subject matter which you've addressed, reflect your best understanding and recollection and beliefs about those matters?‑‑‑It does.

PN66

I tender the statement.

PN67

MR SHARIFF: Any objections, anybody?

PN68

MR TAYLOR: No.

PN69

DEPUTY PRESIDENT KOVACIC: All right, I will mark the third witness statement of Mr David Maurice Gunzburg which comprises nine paragraphs and one annexure, exhibit 9.

EXHIBIT #9 THIRD STATEMENT OF DAVID MAURICE GUNZBURG DATED 22-11-2017.

PN70

MR TAYLOR: Mr Gunzburg, in paragraph 7 of your first statement, you have a table. Do you see that table?‑‑‑Yes.

PN71

What is the source of information in that table?‑‑‑That information is provided to me by the HR or Industrial Relations Managers of the organisations listed.

*** DAVID MAURICE GUNZBURG XN MR SHARIFF

PN72

Can you tell me, did you receive that information in a single document, or in a group of documents?‑‑‑It was a number of responses to a request for information I made, I think, in June or July of this year.

PN73

Can you recall the nature of the request for information you asked each of them to answer?‑‑‑Yes, I can.

PN74

What was that?‑‑‑I was in the process of reorganising the charge out percentages which I use for allocation of costs for the work I do on behalf of this group, and that is allocated based on the number of mines and the number of employees of themselves, or their long-term contractors who are working on their sites, as a means of dividing up the fees.

PN75

And when they responded did they separate out the number that were employees and the number that were long-term contractors?‑‑‑No.

PN76

And so do I take it that it follows that you aren't able to give this Commission evidence as to the number of employees that Anglo American has, as against the number of long-term contractors?‑‑‑Not in exact numbers, no.

PN77

And so you have said in paragraph 8 that the 14 company groups employ or engage via long-term contract arrangements, approximately 35 persons - - -?‑‑‑35,000.

PN78

Sorry, 35,000 persons across 74 mines. Do I understand it that you're not in a position to identify how many employees those 14 company groups directly employ?‑‑‑Not in exact terms. I could tell you that it's the vast majority of them but it changes from time to time. Contracts are let, contracts are taken back in, so it does vary a little.

PN79

Yes, and do you have any statistical material available to you to identify how many employees these company groups have, as against contractors?‑‑‑No, I just said I don't know the exact number.

PN80

So if I could just have a moment.

*** DAVID MAURICE GUNZBURG XN MR SHARIFF

PN81

DEPUTY PRESIDENT BULL: Mr Gunzburg, what's your understanding of the definition of "long-term contractor"?‑‑‑It's not a precise definition, your Honour. What I was seeking from them was, to put it in blunt terms, the number of people who are employed long-term on their mine sites, either directly or through long-term contract arrangements. So that's not trying to capture people who are there, to and fro, for short periods of time, but it's meant to reflect the number of employees working at those mine sites, either directly or through long-term contract arrangements to do work like overburden removal or something like that, part of the mining operation.

PN82

Yes. I don't want to put words in your mouth but they have ongoing contracts, do they, as opposed to being there for three months or six months or twelve months?‑‑‑Yes. It tends to be some long-term arrangement because there's substantial amounts of capital required all up to do the work, et cetera. So what I was trying to capture from these people was, how many people are employed on your mines for the - - -

PN83

No, I understand that you keep saying, "long-term", but you don't tell me what that means?‑‑‑There's no specific number, but there are contractors come on to do short-term work, like repair work or something like that.

PN84

Yes?‑‑‑I wasn't trying to capture those.

PN85

Right.

PN86

MR TAYLOR: Is this the case, that there are significant employers in the industry that are not, themselves, operating mines but employ significant numbers of workers who work in black coal mines?‑‑‑Yes.

PN87

Could you name some of those significant employers?‑‑‑I'm not – I'm going to get some of them wrong. Latent Contractors, at one stage, were large contractors in the area. There are others. I don't pay a lot of attention to the particular names. Thiess, certainly. I'm sorry, beyond that I'm struggling.

PN88

Would others include Mastermyne, M-a-s-t-e-r-m-y-n-e?‑‑‑Possibly.

PN89

Southern Colliery Services?‑‑‑Possibly.

PN90

Spartan Mining Services?‑‑‑Possibly.

PN91

Valley Longwall?‑‑‑Possibly.

PN92

Golding Contractors?‑‑‑I'm sure there's a lot of them.

*** DAVID MAURICE GUNZBURG XN MR SHARIFF

PN93

Workpac?‑‑‑Workpac, certainly.

PN94

Onetee?‑‑‑Possibly.

PN95

Chandler McLeod?‑‑‑Possibly.

PN96

For the purpose of preparing your affidavit, I think this is fair, isn't it, you didn't attempt to work out to what extent the contractor companies employ people in the black coal mining industry, what numbers of employees they have?

PN97

MR SHARIFF: I object. I'm happy to - - -

PN98

DEPUTY PRESIDENT KOVACIC: Please explain.

PN99

MR TAYLOR: Press my objection in the absence of the witness.

PN100

DEPUTY PRESIDENT KOVACIC: Would you mind stepping out of the room, thank you, Mr Gunzburg?

<THE WITNESS WITHDREW [10.36 AM]

PN101

MR SHARIFF: That question requires the witness to draw a conclusion of coverage of the employees of contractors, as to whether they are covered by the Black Coal Mining Industry Award. As I said before, that is a question – it's a perennial question, it's a technical question, about which different mines have different views on as to whether the business or a contractor, whether it be Downer or Latent or Thiess, is in the business of black coal mining, even though they have employees that work at a black coal mine. My friend knows that and my friend is inviting this witness who is not an expert in that matter, including an expert on the questions of legal analysis, for that matter, to express a view about that. I just don't see what the relevance of that is, or how his opinion on that could assist the Commission, at all.

PN102

DEPUTY PRESIDENT KOVACIC: Mr Taylor, you might just reflect on how the question is framed. I think the question itself goes to territory which is legitimate.

PN103

MR TAYLOR: Certainly.

*** DAVID MAURICE GUNZBURG XN MR SHARIFF

PN104

DEPUTY PRESIDENT KOVACIC: But in terms of how it's framed you might just be mindful of Mr Shariff's comments.

PN105

MR TAYLOR: Yes, I don't know what question Mr Shariff heard but I don't think I used the words, "award" or "award coverage" in the question. I simply asked him whether for the purposes of preparing this document he had turned his mind to what numbers of employees are employed by contractors working in the black coal.

PN106

DEPUTY PRESIDENT KOVACIC: That question is entirely legitimate.

PN107

MR SHARIFF: No, no, that – I'm sorry, that was the previous question and I did understand the question to be, "You didn't attempt to work out the contract companies that would be covered by the Black Coal Mining Industry Award."

PN108

DEPUTY PRESIDENT KOVACIC: I think that's what I heard, too.

PN109

MR SHARIFF: That's what I heard, and - - -

PN110

DEPUTY PRESIDENT KOVACIC: Well, the transcript – nonetheless, as Mr Taylor just reiterated, I think is entirely legitimate.

PN111

MR SHARIFF: Can I just try and cut through this. Is it the unions' positions that the employees engaged by every single one of the contractors that my friend has put to the witness, that those businesses would, as a matter of law, fall within the coverage of the Black Coal Mining Industry Award. Now the unions can come along and raise these points but what is their position?

PN112

MR TAYLOR: Just while the witness is out, our position is that the award covers those set out in clause 4.1 of the coverage, coal mining employees being "employees who are employed in the black coal mining industry by an employer engaged in the black coal mining industry whose duties are directly connected with the day to day operation of a black coal mine and who are employed in the classification set out in the award." So one thing that this witness may or may not know, although it's a matter of public record, is that all the companies that I identify have enterprise agreements that were certified, on my instructions, by this Commission by reference to the Black Coal Award, not some other award, which would tend to suggest – and this witness may well know this, that the award does in fact apply to employees of these contract companies who work day to day in the coal mine.

PN113

DEPUTY PRESIDENT KOVACIC: The inference that one would draw from what you've just said, Mr Taylor, is that to the extent that those contractors that you referred to and put questions to Mr Gunzburg about are incorporated in the 34,000, almost 35,000 employees that are referred to there that it perhaps reinforces the point that Mr Gunzburg made in his evidence that collectively that group of employees is a significant majority of employees in the industry.

PN114

MR TAYLOR: I didn't hear him say that. What I've heard him say so far is that a significant number of those employed directly by coal mine operators or their associated entities are employees of the 14 companies.

PN115

DEPUTY PRESIDENT KOVACIC: I accept that.

PN116

MR TAYLOR: I haven't heard him say that the majority of those who are covered by the Black Coal Award are represented by those 14 companies. And on one view that is clear just from the affidavit. He hasn't said it. And that submission can be made and really, the only point I was making earlier was to ask Mr Shariff to make the concession that the evidence doesn't rise to that level. He hasn't made that concession so I'm cross-examining. But really, ultimately, the cross-examination appears so far to have done no more or less than confirm that what he has done is taken some data and he's not capable of disaggregating out that portion which covered who direct employers covered. It's not even clear from his evidence that even the direct employees are necessarily covered and to what percentage they are, and Mr Shariff would know that itself can be the subject of contest between our respective clients. Questions about whether people employed outside of the mine itself, whether they remain covered by the award can itself be an issue. So the bottom line is that's the height of the evidence. The only question I was going to ask left was a question - but I think it may well be that Mr Shariff is content for this to be dealt with as a matter of public record that each of the companies that I identified as employers in this industry have enterprise agreements that were made by reference to the Black Coal Award.

PN117

MR SHARIFF: I don't know the answer to the last bit but if my friend says it's a matter of public record, he can take your Honours to it. This all seems to be a wild hare and a goose chase, in the sense raised by my learned friend because the question we were asked on the last occasion to which the statement was directed in the transcript was, at PN27, Deputy President Bull, you raised whether there is somewhere in the documentation who my client represents, and we identified that the employee groups that have been identified. And then at PN32 we were asked to identify who were the members of the CMIEG and what proportion of the industry those members would comprise, and it was said that that would be beneficial, and that's what the statement addresses. What I have invited, I think in what I said earlier, is an inference to be drawn, I think from objective fact, that the number of employees reflect the vast majority or proportion of the coal mining industry, which I think is just a statistical point, isn't it, which is that if there's 48,000 in coal mining industry, broadly defined, then 35,048 would seem to be the vast majority. The questions of coverage seem to be very technical. The other thing I think we added on the last occasion was the Australian Industry Group is being heard in these proceedings and it has indicated that it supports my client's position and we raise that in the transcript at PN39, and I don't know the answer to the question as to whether some of those employers that my friend mentions, that Mr Gunzburg has mentioned, Thiess, Latent and the like, are represented by AIG, as well. I might have taken somewhat optimistically from what Mr Taylor said, that that was the end of his cross-examination of Mr Gunzburg.

PN118

DEPUTY PRESIDENT KOVACIC: I just wanted to clarify whether he wanted to put that last question that he - - -

PN119

MR TAYLOR: I think I will, and it would be useful if Mr Vickers' statement – Mr Vickers wasn't required for cross-examination but it would be useful if Mr Vickers' statement could be made available to the witness. Exhibit 5, I understand. It's quite a large document.

<DAVID MAURICE GUNZBURG, RECALLED [10.46 AM]

CROSS-EXAMINATION BY MR TAYLOR [10.46 AM]

PN120

DEPUTY PRESIDENT KOVACIC: Thank you, Mr Gunzburg.

PN121

MR TAYLOR: Mr Gunzburg, I asked you some questions before you left, and named a number of entities that in some respects I think you knew were contractors that had as employees, workers that worked at coal mines, and others, I think, you figuratively shrugged your shoulders as you've just done, and you just weren't sure one way or the other?‑‑‑Yes.

PN122

I now want to show you – I want to show you Mr Vickers' statement but apparently on my side of the Bar table we don't have a complete copy of the statement with the annexures. So what I need thought, is Annexure 44, as well. Does anyone have a copy? I'm going to show you, firstly, Mr Vickers' statement, Exhibit 5, and paragraphs – opened at paragraphs 91 and following. Now you read Mr Vickers' statement, of course, no doubt, some many months ago now when it was filed in these proceedings?‑‑‑Yes.

PN123

Do you recall, as he indicates at paragraph 92, that in preparing the statement he instructed his industrial research staff, "prepare a table dealing with the nature of accident pay clauses in enterprise agreements applying to employees of coal mining companies." Do you recall reading that?‑‑‑I don't recall but I'm reading it now.

*** DAVID MAURICE GUNZBURG XXN MR TAYLOR

PN124

Yes, all right. And you'll recall that annexed to that statement was a table containing 145 enterprise agreements?‑‑‑(No audible reply)

PN125

In light of the fact that we don't have a copy, could the Commission make available to the witness, Annexure 44 to Mr Vickers' statement, as tendered?

PN126

DEPUTY PRESIDENT KOVACIC: We could if I had it in my folder.

PN127

MR SHARIFF: We've only got one copy on my side.

PN128

MR TAYLOR: Mr Shariff is suggesting there might be another way I can deal with it without showing it to you. I just didn't want to not show it to you, as a matter of fairness. Do you accept that that list of 145 enterprise agreements contains agreements with contractor companies?‑‑‑I'm sure it does. I don't know what Mr Vickers meant by "coal mining companies" in paragraph 92. It's a very broad term. If it's meant to mean companies which own leases upon which coal mining takes place, then I think it would only be members of the coal mining industry employer group, the 14 companies that I represent. There are a number of companies that perform coal mining operations as part of their broader duties, so I'm struggling. I don't know the where we're going.

PN129

DEPUTY PRESIDENT KOVACIC: Can I just interrupt there. The best way of doing it might actually to have the – and I've just asked my Associate if she can get the exhibit up on the computer and then, Mr Gunzburg, you can have a look at it and perhaps the comment that you've just made, you can actually come to a view one way or the other, as to the what the reference to "coal mining companies" means?‑‑‑Okay, I think I've got it in front of me now.

PN130

MR TAYLOR: Do you see, there's a cover page, AB44, at what was numbered 772 in the bottom right-hand corner, and then the table effectively starts at 773, and they're numbered agreements starting with number one, and going through to 115 in this particular schedule?‑‑‑Yes.

PN131

Do you identify at number six, the name of an enterprise agreement which would suggest that it is an agreement that applies to a contractor that employs workers in the coal mining industry?‑‑‑Yes.

PN132

And similarly, number eight, Mastermyne, Appin Mine enterprise agreement?‑‑‑Yes.

*** DAVID MAURICE GUNZBURG XXN MR TAYLOR

PN133

You, I think, identify Thiess as an employer of contractors in the industry. Number 11, would that appear to be an enterprise agreement that applies to employees of a Thiess Group company?‑‑‑I presume so, by the – all I've got is the name.

PN134

Yes?‑‑‑So I'll assume the name is representative of the coverage of the agreement.

PN135

Yes. Number 16, I'd suggested to you Chandler McLeod was an employer of those who work in the industry. Do you see number 16 is an enterprise agreement that commences with the words, "Chandler McLeod"?‑‑‑Yes.

PN136

And at 25, I think there's a company there that may or may not be a contractor, Sparta Mining Services Pty Ltd? Is that a company you're familiar with?‑‑‑I'm not familiar with that particular company.

PN137

But can I come back to the proposition, in light of that material that I've shown you so far, that you accept, do you not, that there are employers in this industry who would have employees covered by the Black Coal Award who are labour hire and contractor companies and are not mine operators?

PN138

MR SHARIFF: I object. I object.

PN139

DEPUTY PRESIDENT KOVACIC: Mr Shariff?

PN140

MR SHARIFF: Yes, and again, I don't want to raise my objection in the presence of the witness.

PN141

DEPUTY PRESIDENT KOVACIC: Would you mind stepping out of the room again, thank you.

<THE WITNESS WITHDREW [10.55 AM]

PN142

MR SHARIFF: That question suffers precisely the same vice as the question to which I previously took objection because it's again asking this witness to express a conclusion of law as to whether those contractors are ones who employ people in the industry covered by the Black Coal Mining Award. And that's just a question of law. And with respect, we just don't know what the relevance of any of this is, at the end of the day. But my objection is the formal one which is that it's inviting the witness to express a conclusion of law.

*** DAVID MAURICE GUNZBURG XXN MR TAYLOR

PN143

MR TAYLOR: I don't doubt that there are differences of views between our respective clients about exactly where the edge of the award is, but I didn't understand there to be any dispute that each of these entities employ people who are covered by the Black Coal Mining Award and this witness knows that. And if in fact the proposition is that no employee of any contractor is covered by this award, then I hadn't understood that before. But ultimately, the point is, as my friend says, a legal point. The question really was going to his affidavit wherein he is putting forward evidence to this Commission as to the members of his organisation employing a majority, or I think Mr Shariff calls it a vast majority, of those covered by this award, that this is just something that he hadn't considered. He just hadn't considered it when he put his affidavit together. So I think I'm entitled to put the proposition as to what his understanding is, albeit that there might be a legal question as to whether that understanding is correct or not, because it doesn't go to proving they are covered by the award, it goes to proving that he hasn't turned his mind in preparing his affidavit, to the extent to which his members in fact employ people who are covered by the award.

PN144

DEPUTY PRESIDENT KOVACIC: My interpretation of what Annexure 44 to Mr Vickers' statement is that it's purely a list of agreements that might operate in this sector. I don't know that anyone could tell from that list of agreements what might be the underpinning award that is used for the purposes of it but - - -

PN145

MR SHARIFF: And can I just correct a few things. The first is, when my friend keeps saying, "when this witness prepared his statement", well he's been calling it an affidavit, but when he prepared the statement, the statement doesn't purport to say the things that Mr Taylor says. I have made a submission about what is an inference that might be drawn from that evidence. They're two different things. And the fact that there's a list, as we've point out, well that's in evidence. If my friend wants to make a submission about that, so be it. But I'll come back to make some submission in reply about that if there's a point to be made by Mr Taylor about it. At the moment I don't understand the point to be made by it. But I just don't think asking this witness for his understanding assists. And with the greatest respect, inviting a witness to give an understanding to a trier of fact where this Commission in fact determines this matters, is just entirely irrelevant. It doesn't matter what the witness thinks, ultimately. If there's an issue to be had, you as members of the Commission will have to determine it.

PN146

DEPUTY PRESIDENT KOVACIC: Mr Taylor, I'm not sure where the question takes us.

PN147

MR TAYLOR: In light of that, your Honour, I'm content to, as Mr Shariff said, leave the matter at that point then and deal with it by way of submissions any further, as to what submissions Mr Shariff thinks he can make based on that evidence.

PN148

DEPUTY PRESIDENT KOVACIC: Mr Shariff, do you have any questions arising from that?

PN149

MR SHARIFF: No, I don't.

PN150

DEPUTY PRESIDENT KOVACIC: Thank you. We'll get Mr Gunzburg back in so he can be excused.

PN151

MR SHARIFF: May it please. The next witness will be Dr Adam. His report dated 28 February 2017, does the Commission have that?

<DAVID MAURICE GUNZBURG, RECALLED [10.59 AM]

PN152

DEPUTY PRESIDENT KOVACIC: Mr Gunzburg, just for the record, you're excused and you're now free to go?‑‑‑Thank you, your Honour.

<THE WITNESS WITHDREW [10.59 AM]

PN153

DEPUTY PRESIDENT KOVACIC: Yes. Mr Adam, if you could come please.

PN154

THE ASSOCIATE: Please state your full name and address?

PN155

MR ADAMS: Keith William James Adam, (address supplied).

<KEITH WILLIAM JAMES ADAM, SWORN [11.00 AM]

EXAMINATION-IN-CHIEF BY MR SHARIFF [11.00 AM]

PN156

MR SHARIFF: Just, could you state your full name for the record?‑‑‑Keith William James Adam.

PN157

Your business address?‑‑‑Level 5, 410 Ann Street, Brisbane.

PN158

You prepared an expert report for the purpose of these proceedings, dated 28 February 2017, doctor?‑‑‑Yes, I did.

PN159

Do you have a copy of that report with you?‑‑‑I do.

*** KEITH WILLIAM JAMES ADAM XN MR SHARIFF

PN160

Could I just take you in that report to appendix C, which is your CV?‑‑‑Yes.

PN161

You're a qualified medical practitioner?‑‑‑Yes, I am.

PN162

You're a Fellow of the Australian College of Occupational Medicine?‑‑‑Yes.

PN163

You, as I understand it, have been a member or a deputy chairman of the General Medical Assessment Tribunal for the Queensland Compensation Tribunal. Is that right?‑‑‑Yes.

PN164

You were also an expert member of the Workplace Health and Safety Board established by the Minister for Employment and Industrial Relations from 1997 to 2001?‑‑‑Yes.

PN165

You have, as I understand it, conducted research and been involved in publications that you set out at the bottom of page 15 there?‑‑‑Yes, I have.

PN166

You have been involved in providing advice on occupational medicine and related matters in the coal mining industry?‑‑‑Yes, I have.

PN167

You have also done that in other industries?‑‑‑Yes.

PN168

In the positions that you have held - the appointments that have been bullet pointed at the top of page 15 - you have had occasion to examine the different types of injuries that have arisen in different industries, I take it?‑‑‑Yes, I have.

PN169

You have done that over a period of time?‑‑‑A longer period of time now than I care to admit.

PN170

May it please, I have no further questions of this witness. Sorry, is should have tendered the report.

PN171

DEPUTY PRESIDENT KOVACIC: Any objections, Mr Taylor?

PN172

MR TAYLOR: No.

PN173

DEPUTY PRESIDENT KOVACIC: I will mark the export report of Dr Keith Adam, which comprises 10 pages and I think four annexures, as exhibit 10.

*** KEITH WILLIAM JAMES ADAM XN MR SHARIFF

EXHIBIT #10 EXPERT REPORT OF DR KEITH ADAM DATED 28/02/2017 PLUS ANNEXURES

CROSS-EXAMINATION BY MR TAYLOR [11.03 AM]

PN174

MR TAYLOR: Dr Adam, your report arose as a result of a request by Ashurst for you to provide an expert report on behalf of their client, Coal Mining Industry Employer Group. Is that right?‑‑‑Yes.

PN175

You were asked to provide your opinion as to the nature and frequency of work‑related safety incidents in the black coal mining industry since the early '70s?‑‑‑Yes.

PN176

You were asked to give your opinion as to changes to the length of time before a worker returns to work after a work‑related incident. Have you, before providing this opinion, done any research into either of those two issues?‑‑‑Not specific research, no.

PN177

Have you ever written any papers prior to writing this expert report that examine either of those two questions?‑‑‑No.

PN178

Is it the case that you currently work as a consultant to coal mining companies?‑‑‑I'm retained as the nominated medical advisor by two coal mining companies.

PN179

Are both of those companies members of CMIEG?‑‑‑I expect so. I don't know.

PN180

Just so that we identify them, is one of them Yancoal; Y‑a‑n‑c‑o‑a‑l?‑‑‑Yes.

PN181

Is the other one Curragh; C‑u‑r‑r‑a‑g‑h?‑‑‑Yes.

PN182

In light of the answers you've given so far, do you accept this proposition: whilst you clearly have expertise in respect of workplace injuries, you would not put yourself forward as an expert on the subject of changes to the nature and frequency of work‑related safety incidents in the black coal industry?‑‑‑Well, I've been involved in the black coal industry for over 25 years and during that time I've been involved in, for example, assessing a lot of people, undertaking examinations, also treating injured workers, so I do have significant, if you like, hands on, frontline experience.

*** KEITH WILLIAM JAMES ADAM XXN MR TAYLOR

PN183

Yes. You, I think, in your statement refer at times to some material, but then go on to say that it reflects or otherwise your personal experience?‑‑‑Yes.

PN184

So do I understand this to be the position: you have direct experience in dealing with work‑related injuries from your practise? Am I right so far?‑‑‑Yes.

PN185

But you would accept, would you not, that you are not someone who would put yourself forward as an expert on the nature and frequency of work‑related safety incidents across the black coal mining industry?‑‑‑Well, I guess my expertise is what it is. It's the sum total of my experience, my involvement in the industry and also what I've read.

PN186

Is this the case: what you did for this report is take some statistics provided to you by Ashurst and then reproduce them in a graph form with some additional comments?‑‑‑No, I also did some additional research on my own. I looked up other studies and figures.

PN187

Can you identify in your report any of those additional ones that you looked up?‑‑‑Well, for example, I actually looked back through some of the past coal mine - you know, chief coal inspector's reports from Queensland going back over some previous years, as well.

PN188

Is that something you mention in your report?‑‑‑No, I didn't, because a lot of the results were similar or consistent. I didn't think it was - there was nothing in there that was significantly different or noteworthy to and I didn't - in the end I didn't rely on that information, but I did do some broader reading around the topic. I didn't, for example, just take the figures that were given to me as read without undertaking some other work to make sure that I was satisfied in my own mind.

PN189

Let's just work out what you were given by Ashurst. Is what you were given by Ashurst set out in your report on page 1 in the paragraph that has then a series of dot points?‑‑‑Yes, it is.

PN190

Is there anything that you mention in your report by way of a source of material that is not a document provided to you by Ashurst?‑‑‑No.

PN191

Is it fair to say that your report, in essence, is your summary of the statistical material that Ashurst provided to you with some additional comments that you have added from your own personal experience?

*** KEITH WILLIAM JAMES ADAM XXN MR TAYLOR

PN192

MR SHARIFF: I object. I'm conscious of the criticisms raised on the last occasion, so I might for Dr Adam to leave.

PN193

DEPUTY PRESIDENT KOVACIC: Dr Adam, would you mind stepping out of the courtroom?‑‑‑Certainly.

PN194

Thank you.

<THE WITNESS WITHDREW [11.08 AM]

PN195

MR SHARIFF: That last question - and I should have raised objection to it on a previous occasion that my friend used the formulation - asked the doctor, "So what you've done is express your personal opinion." I object to the words "personal opinion" because what is being expressed here isn't a personal opinion, it's a professional opinion. My friend has also put some questions about expertise. My friend hasn't objected to the evidence.

PN196

Section 79 of the Evidence Act provides that a person can express "opinions based on specialised knowledge" based upon "training, study or experience", so that an expert expresses opinion. It's not a personal opinion, it's a professional opinion. Could I ask my friend just to clarify are the questions that he is putting intended to traverse this doctor's opinion as a personal opinion or as a professional opinion? It's just not clear to me what's being put here.

PN197

MR TAYLOR: I'm more than happy to confirm that perhaps, unlike him, I see the two as synonymous. He is giving his personal opinion as a professional. It is not some other professional's opinion, it's his professional opinion, but I'm content to clarify that if there is any thought that the witness might have misunderstood that I was asking a question on any other basis.

PN198

DEPUTY PRESIDENT KOVACIC: Mr Shariff?

PN199

MR SHARIFF: Yes. I just think it's important, because no objection has been taken to the evidence and I just don't know whether at the end of the day my friend is going to say that this witness wasn't qualified to express a professional opinion. That's my concern. I don't want to be taken by surprise by some submission in closing, but I thank my friend for what he said.

PN200

DEPUTY PRESIDENT KOVACIC: Mr Taylor, if you could perhaps couch your questions using the term "professional opinion", that would be helpful, I think.

*** KEITH WILLIAM JAMES ADAM XXN MR TAYLOR

PN201

MR TAYLOR: Of course, yes. I certainly didn't suggest anything else. I didn't mean to suggest anything else.

<KEITH WILLIAM JAMES ADAM, RECALLED [11.11 AM]

CROSS-EXAMINATION BY MR TAYLOR, CONTINUING [11.11 AM]

PN202

MR TAYLOR: Dr Adam, let me put the question again. Do you accept that it's fair to say that your report is, in essence, a summary - your summary - of statistical material provided to you with Ashurst, with some additional comments as to whether those statistics are consistent or not with your professional experience?‑‑‑I think the way you put it rather understates what I believe to be the case. I have been involved in the industry for over 25 years. During that time I've participated in a lot of health and safety programs. I have helped establish initiatives to improve rehabilitation in the workforce. While I haven't done any formal studies, I have been working with and observing the industry for a long period of time, so I find that the reports reflect what my experience is. So that I'm not just regurgitating these reports, I am using them to illustrate what I've perhaps observed firsthand and I'm saying that those figures that are quoted in there are consistent with my observations over a significant period of time.

PN203

Did you prepare the tables yourself?‑‑‑Some of them. Some of the graphs I cut and pasted. Others, for example, I actually took raw material, I put it into a spreadsheet of my own and I manipulated it myself to see - yes, to analyse it in the way that I wished to.

PN204

I was just wanting to clarify to the extent to which it's the second category, whether someone at your direction was doing it or whether you yourself were looking at the raw data and converting into a - - -?‑‑‑I myself did it.

PN205

I will come back to a couple of examples in a moment. Can I just take you now to one of the subjects which you expressed an opinion about towards the bottom of page 3 of the report there is a heading "Number 2". Do you see that?‑‑‑Yes.

PN206

Here you are responding to a question, are you not, which asks you to express an opinion about the general trend and injury frequency?‑‑‑Yes.

PN207

You then reproduce some figures in respect of fatalities?‑‑‑Yes.

PN208

That's at the top of the next page?‑‑‑Yes.

*** KEITH WILLIAM JAMES ADAM XXN MR TAYLOR

PN209

Do I understand that you have done so because of a view that you hold that fatality figures tend to track injury figures more generally?‑‑‑It's difficult to make that broad generalisation. The difficulty with - well, fortunately, the difficulty with fatalities is they are relatively infrequent so that the frequency can vary a lot more, but, yes, it's an indicator. It's not the only indicator, but it's - I mean, what I looked at was a number of different parameters to get an overall impression rather than just sort of relying on one figure, but, yes, they do roughly track - - -

PN210

The expression you use at the bottom of page 3 is:

PN211

A reduction in fatalities is usually paralleled by a reduction in other injuries.

PN212

Do you see that?‑‑‑Yes.

PN213

By "usually paralleled" do you mean that in your professional opinion one tends to follow the other? That is, one will find a direct - - -?‑‑‑Well, they both tend to trend in the same direction. Yes, for example, in the figures that are there, it's quite obvious there are a number of the disasters that have - mining accidents, so they're not - you know, the injury figures may not parallel those, but there is a general consistency in the trends.

PN214

The trend figure you have produced in figure 1 is a period that is in excess of a hundred years?‑‑‑Yes.

PN215

If one focuses on the last 20 years - - -?‑‑‑Yes.

PN216

That is from about 1997 - do you accept that at least with respect to the figures that you were able to obtain here, it would suggest that fatality figures haven't decreased over the last 20 years? They've bumped around, but they're - - -?‑‑‑Look, I think the problem when you're getting down to those sort - yes, when you're getting down to single digit counting, then an extra fatality in a year is going to bump the rate up. It's going to double it, for example, so they will - when you get down to that level, it's difficult to - the statistical trends aren't as strong because the numbers are very small.

PN217

When you say that they usually parallel - - -?‑‑‑Yes.

PN218

- - - are you suggesting that that's not necessarily true for the last 20 years?‑‑‑When you get to a stage, yes, when the number of fatalities is quite low, then - - -

*** KEITH WILLIAM JAMES ADAM XXN MR TAYLOR

PN219

Do they or do they not parallel for the last 20 years?‑‑‑Well, from my looking, the injury rates have continued to trend downwards, whereas the fatality figures are - if I may use the phrase - sort of bumping along the bottom.

PN220

When you say "trend downwards", when you looked down were you looking at the table below there?‑‑‑For example - that's just one example of - - -

PN221

I see. Do you see in that table for the period 2006 to 2016, a 10‑year period, a trend that is - do you accept if it is downward, it is only marginally downward over that period?‑‑‑It's at a reasonably low rate. I mean, what I find in my experience has been when the rate is high, you can often get a rapid improvement initially. When you get down to a fairly low level, it's difficult to gain further improvement, but it's continuing to trend downwards.

PN222

Can I ask you just on this subject of decreasing fatalities, as a doctor practising in this area do you accept that one of the reasons why - just to change tack slightly - the number of fatalities in car accidents has gone down over the last 30 years is in part due to improvements in emergency medicine?‑‑‑In part, yes.

PN223

So very serious accidents, because of those improvements, don't necessarily today result in a fatality that they might have decades ago?‑‑‑That's true, but we also have seat belts and a lot of other things. It's one of a number of factors.

PN224

It's only one of the factors. I accept that?‑‑‑Yes.

PN225

When it comes to work in a coal mine where we're not talking about seat belts and the like, if there is a very serious incident that can put a life in risk, those improvements in medical care - particularly immediate emergency medical care - may well be, do you accept, a fact in reducing fatalities without necessarily reducing serious injuries?‑‑‑It could be a factor, yes.

PN226

Duration of claims is a subject that you deal with at page 9?‑‑‑Mm‑hm.

PN227

You have a chart there on page 9 called "Duration of claims". Do you see that?‑‑‑Yes.

PN228

Is that one of the charts that you prepared based on data that had been provided to you by Ashurst?‑‑‑Yes. I think that came from the New South Wales coal industry.

*** KEITH WILLIAM JAMES ADAM XXN MR TAYLOR

PN229

Yes. That figure is mentioned in the first paragraph under a heading - and I'm looking at the middle of the page just so you can follow me?‑‑‑Yes.

PN230

It says:

PN231

The length of time before an employee returns to work after a work‑related safety incident or injury.

PN232

Do you see that?‑‑‑Yes.

PN233

The next paragraph refers to a different figure which is not actually contained in the report prior to your signature, but it is annexed?‑‑‑Yes.

PN234

It's annexed on page 12 of 16?‑‑‑Yes.

PN235

Do you recall the data that you used for those two were two different sets of data?‑‑‑Yes.

PN236

If you look at figure 2, is this case: what that figure is tending to show you is that for numbers of claims - just stopping there. That is what is represented on the left‑hand side, is it not?‑‑‑Yes.

PN237

Numbers of claims?‑‑‑Yes.

PN238

I'm sorry. Sometimes you just have to wait for me to finish, otherwise I don't actually hear your answer?‑‑‑I'm sorry.

PN239

Then on the right‑hand side is of course weeks. That is indicated. Is this the case: what this chart is showing is that the majority of claims, the duration or I think you're saying the length of time before an employee returns to work, is something less than three weeks?‑‑‑For a large number of them, yes.

PN240

And thereafter the line then trends slightly down up until the 52‑week mark?‑‑‑Yes.

PN241

You say - and I'm just going back to the middle of the page. You note there is an abrupt drop‑off at that time. That is, the 52‑week mark?‑‑‑Yes.

*** KEITH WILLIAM JAMES ADAM XXN MR TAYLOR

PN242

The abrupt drop‑off is to zero, is it not?‑‑‑Well, it looks like it on the graph. You could - yes.

PN243

You mention the data in figure 8 and you say there is a trend of return to work within the first week to occur less frequently -

PN244

but this is almost completely taken up by an increased rate of return to work in weeks 1 to 13.

PN245

You say this:

PN246

Again there is a relatively small proportion of claims which extend beyond 52 weeks.

PN247

?‑‑‑Yes.

PN248

Now, you're not suggesting, are you, as a matter of your professional opinion that in fact there are few, if any, claims in the coal mining industry which result in an employee being off work and making claims for more than 52 weeks?‑‑‑No, one of the reasons why I comment on the drop‑off is I suspect - although I wasn't able to establish what it was - that there may be some statutory thing or something about the claims or the way they're counted that makes it drop off at 52 weeks. There would certainly be some claims going on longer.

PN249

You don't mention that in your report. Do you accept that?‑‑‑Yes, I accept I didn't say that.

PN250

You simply identify a drop off at 52 weeks without qualifying that that is not consistent with your professional experience?‑‑‑Well, I perhaps should have elaborated on that. I have now done so.

PN251

You understand, do you not - and tell me if you do or not - that your evidence is being brought forward in circumstances where the applicant companies are seeking to convince the Commission that the current access to accident pay periods should be reduced from 78 weeks to 52 weeks?‑‑‑Yes.

*** KEITH WILLIAM JAMES ADAM XXN MR TAYLOR

PN252

You understand from that, do you not, that it is important for the Commission to have some understanding as to the proportion of current claims which in fact extend beyond 52 weeks?‑‑‑Yes. That is in fact - when I looked at that first figure and had, if you like, some scepticism or some concern about the apparent drop off of 52 weeks, that's why I actually then introduced this table to see - using some other data, to see whether - what was going on after that time.

PN253

What you have just said, again that's not something that you put in your report. You say that that was, nevertheless, in your mind as to why you put figure 8 in, as well. Is that right?‑‑‑Well, I was just being very careful to evaluate the whole thing, yes.

PN254

We asked CMIEG, by way of an order issued by the Commission, to produce the material that was provided to you which you used to prepare these charts. We got a bunch of material. I'm just going to show you that part of it which I believe appears to be the material that you relied on to prepare these charts?‑‑‑Yes.

PN255

I have some multiple copies of it, so could I provide that to you and also to the Commission at the same time. There is one for the witness and there are three more copies. Now, the material itself I think you described earlier as being supplied to you by Ashurst, but it being CMI material. You refer to it as figures provided by Coal Services?‑‑‑Well, I think it's Coal Miners Insurance or - - -

PN256

Yes?‑‑‑Yes.

PN257

Can I ask you to go to page 6 of the document. Here we have a heading:

PN258

Claim counts by financial year and paid duration weeks of accident paid payments as at 30 November 2016.

PN259

Do you have that page there?‑‑‑Yes.

PN260

Then underneath that it says:

PN261

In respect of the claims for workers compensation under insurance policies held with CMI in relation to which any payments for accident pay were made which were indemnified under policies held with CMI -

PN262

and then these are the words -

PN263

data showing the period of time for which payments for accident pay were made in each year for the period 1973 to 2016.

*** KEITH WILLIAM JAMES ADAM XXN MR TAYLOR

PN264

You see that?‑‑‑Yes.

PN265

Now, what then follows are tables with raw numbers starting with a column that starts "Financial year" and then the first column after that is "Less than a week" and then "One Week", then "Two weeks" and following?‑‑‑Yes.

PN266

Do I understand that what you did was enter this data into a spreadsheet which then recorded or produced figure 7?‑‑‑Yes. On mine I call it figure 8, but I think we're talking about the same document with the same - - -

PN267

No, I'm talking about figure 7 at this stage?‑‑‑Right.

PN268

We will come to figure 8?‑‑‑Yes.

PN269

But if you want to look ahead to page 13, there is a different data set there which, if you want to take the time to compare, has percentages which directly reflect the percentages that one finds in your figure 8?‑‑‑Yes.

PN270

What figure 7 is, is it not, is not something based on percentages. It's based on actual counts which is what one finds from page 6 and following?‑‑‑Yes. Figure 7 is actual counts, yes.

PN271

It's based on the data from page 6 through to page 11?‑‑‑Yes.

PN272

You see, do you not, that when one gets to page 9 - you would have seen when you're entering the data that there are weeks recorded in columns up to 52 and then from 53 onwards every entry is zero?‑‑‑Yes.

PN273

What this chart said it was recording was the amount of time - the period of time - for which payments for accident pay were made in each year?‑‑‑Yes.

PN274

There was never going to be more than 52 weeks in a year, was there?‑‑‑No, and that's - - -

PN275

When you produced the chart, you say there is an abrupt drop off at 52 weeks?‑‑‑Yes.

*** KEITH WILLIAM JAMES ADAM XXN MR TAYLOR

PN276

But you knew when you produced the chart that this chart wasn't recording the heading, as you put it, "The length of time before an employee returns to work." That's not what the chart was actually recording at all, was it?‑‑‑Well, it was recording the length of - it was paid, but, as you - and that was why I went looking further, because I felt that may have been the explanation.

PN277

I just want to put this as a matter of fairness. That first paragraph and the figure 7 create a misleading impression, do they not, by placing it under the heading "The length of time before an employee returns to work after a work‑related safety incident", and you say it's an abrupt drop‑off at 52 weeks, it flat lines?‑‑‑Yes.

PN278

That is a misleading impression. Those figures do not actually record the length of time before an employee returns to work?‑‑‑Well, I must say that I wasn't - I perhaps should have elaborated, but my thought was, when I comment on there being an abrupt drop‑off, that I rather suspected the sort of explanation that you provided.

PN279

Why would you include that paragraph and that figure given its capacity to mislead?‑‑‑Well, it wasn't an intention - there was no intention to mislead. It was a figure that was there and when I noticed what appeared to be an anomaly when suddenly stopping at 52 weeks, I commented on that.

PN280

Where do you comment on it?‑‑‑Now, I may have commented differently - - -

PN281

Where do you comment on it?‑‑‑I made the comment that it was an abrupt drop off. Now, I didn't at that stage speculate as to why, but I did comment on that, so I was already aware of the fact that this may not have been a true reflection.

PN282

When you say at the end of the next paragraph these words:

PN283

Again, there is a relatively small proportion of claims which extend beyond 52 weeks - - -

PN284

?‑‑‑Yes.

PN285

- - - what is the word "again" referring to? Is that referring to the previous paragraph?‑‑‑Look, I'm struggling to remember why I used a particular word when I wrote something almost 12 months ago. I'm sorry.

*** KEITH WILLIAM JAMES ADAM XXN MR TAYLOR

PN286

Isn't this the position: the first paragraph you were seeking to identify an abrupt drop‑off at 52 weeks and in the second paragraph you were confirming that there is a big difference at the 52‑week mark?‑‑‑No, I wasn't seeking to confirm an abrupt drop‑off. I commented that - you know, I made a comment there which in my mind indicated that I felt there may have been some anomaly occurring and so I actually did a further analysis which then comes out on figure 8, where I actually looked to see what figures were available that did actually extend beyond 52 weeks. Again there's a relatively small number or a proportion, a percentage, between 52 and 65 weeks and very, very few after that.

PN287

Yes, well, let's just look at that then. This is page 13 of the raw data that you have?‑‑‑Mm‑hm.

PN288

But you have reproduced it, to the best of my checking, faithfully in your figure 8?‑‑‑Yes.

PN289

So maybe let's just go to that figure 8?‑‑‑Yes.

PN290

You know, you have done so in a way that one can read it. What you have done in figure 8 is, by way of rows, identify percentages for whose duration of claims fell into particular nominated periods of weeks, have you not?‑‑‑Yes, that's correct.

PN291

If you take the last financial year that you have recorded here, 2015 to 2016 - - -?‑‑‑Yes.

PN292

- - - do you accept that something - well, to be precise, 9.4 per cent of all claims extended beyond 52 weeks?‑‑‑That's what the figure there says, yes.

PN293

The previous year, 9 per cent?‑‑‑Yes.

PN294

So when you say a relatively small proportion of claims beyond 52 weeks, by that you are talking about - because you hadn't quantified it in the paragraph - something in the order of figures that could include 10 per cent?‑‑‑Yes, on that figure.

PN295

Can we just go back - - -

PN296

DEPUTY PRESIDENT KOVACIC: Can I just ask a question there?

*** KEITH WILLIAM JAMES ADAM XXN MR TAYLOR

PN297

MR TAYLOR: Yes, of course.

PN298

DEPUTY PRESIDENT KOVACIC: Just following on from that in terms of the figures at figure 8 that go beyond 52 to 65 weeks, they're proportions. Do you have the raw numbers that underpin those?‑‑‑No, I just relied on that table that was - - -

PN299

Okay. Mr Taylor, thank you.

PN300

MR TAYLOR: Just while we're looking at that table, what you say in your paragraph about this figure is - just back to page 9 - there is a trend, a return to work, within the first week to occur less frequently. Firstly - there might be some words missing - what did you mean by those words so far?‑‑‑I guess what I observed was that in the very earliest years most of the - there seemed to be a large number returning to work in the first week and I - - -

PN301

By that, you were looking at - - -?‑‑‑Back in 1989.

PN302

- - - 1989 through to about 1995?‑‑‑Possibly.

PN303

Where we've got figures in the order of almost a third or up to a half returning in the first week?‑‑‑Yes.

PN304

Then, rather weirdly, zero?‑‑‑Yes.

PN305

And then the figures seem to reset?‑‑‑I mean, you've given this data and clearly at times there may have been a definitional change of the way they counted things that might have accounted for that.

PN306

Yes. You then indicate - I'm just going back to the balance of the sentence, but this is almost completely taken up by an increased rate of return to work in weeks 1 to 13. Is that referable really just to those early years? Are you suggesting that the percentage - effectively those who were not returning in the first week were returning in the first 13 weeks?‑‑‑Yes.

PN307

You're not suggesting, are you, that there has been as a general trend, if you include those returning in the first week, much of a difference in those returning in the first 13 weeks? As a general proposition, they tend to be sitting around the 50 to 60 per cent mark throughout that period, do they not?‑‑‑Yes.

*** KEITH WILLIAM JAMES ADAM XXN MR TAYLOR

PN308

One doesn't from this chart, do you accept, find a trend that suggests that increasingly claims are being dealt with in the first 13 weeks? If anything, the trend suggests - directs in the other way?‑‑‑Yes, I mean that.

PN309

There was another table you were provided which - I just want to confirm you were provided with it. You didn't refer to it in your report. If you can turn back to page 12. This table, item 7, appears on its face to provide the average period of workers compensation paid in weeks by financial year?‑‑‑Yes.

PN310

Is that how you read it?‑‑‑Yes.

PN311

You accept that this table does not suggest that there has been some general trend that claims are being resolved more quickly?‑‑‑Well, again it in part reflects that figure we saw at start where there initially seemed to be a lot more settled in one week, but, that apart, the figure is roughly consistent throughout the last 10 years except for a bit of a drop in 2016‑2017. There is a note about that, because that was only the part year.

PN312

That was only five months of that year?‑‑‑That's right. It's a part year, yes.

PN313

So one shouldn't place any reliance on that figure?‑‑‑No.

PN314

You accept?‑‑‑Yes.

PN315

So once you take that figure out, what one finds is that as a generalisation, you accept, there hasn't been a reduction in the average length of payments over that period?‑‑‑Not on those figures, no.

PN316

Dr Adam, just give me a moment. There are a couple of things I jumped ahead on, so I just want to check what else I need to put to you. They are my questions. Thank you. Could I tender the document that I provided the witness and which I described to the witness as being part of the material produced in answer to a call for material that the witness relied upon or used for the purpose of preparing this report.

PN317

DEPUTY PRESIDENT KOVACIC: Do you have any objection, Mr Shariff?

PN318

MR SHARIFF: No, no objection.

*** KEITH WILLIAM JAMES ADAM XXN MR TAYLOR

PN319

DEPUTY PRESIDENT KOVACIC: I'll mark the document which comprises 14 pages and the first page is titled "Exposed to risk (workers covered by CMI workers compensation insurance policies)" as exhibit 11.

EXHIBIT #11 DOCUMENT TITLED "EXPOSED TO RISK (WORKERS COVERED BY CMI WORKERS COMPENSATION INSURANCE POLICIES)

PN320

DEPUTY PRESIDENT KOVACIC: Mr Shariff?

PN321

MR SHARIFF: I have nothing arising. If the witness could be excused.

PN322

DEPUTY PRESIDENT KOVACIC: Thank you, Dr Adam. You're now excused and you're free to go?‑‑‑Thank you.

<THE WITNESS WITHDREW [11.39 AM]

PN323

DEPUTY PRESIDENT KOVACIC: We will just take a short five‑minute adjournment. We will resume at quarter to 12.

SHORT ADJOURNMENT [11.39 AM]

RESUMED [11.46 AM]

PN324

MR SHARIFF: Your Honours, what I was next going to do was to tender some of the further material that has come in from the CMI. I had dealt with the third statement of Mr Gunzburg. There was also two graphs that we wish to tender. Those are updated graphs. You will recall on the last occasion, we indicated that we would obtain further data from CMI in respect of the drop off from 2015/2016. We have done that and we have prepared updated graphs, which we have provided to our, friends and I would seek to provide those to you now. At least one of these graphs updates the graph that my friend Mr Taylor was just examining Dr Adam on.

PN325

MR TAYLOR: No.

PN326

MR SHARIFF: No? I'm sorry.

PN327

MR TAYLOR: These are both from Gunzburg.

*** KEITH WILLIAM JAMES ADAM XXN MR TAYLOR

PN328

MR SHARIFF: I'm sorry, my friend's right.

PN329

MR TAYLOR: Gunzburg's second statement.

PN330

MR SHARIFF: They update the graphs from Mr Gunzburg's second statement at exhibit 2, if your Honours have that. What these are, on the second page, they are an update to Figure 1 and Figure 2 from Mr Gunzburg's second statement and the first graph, Figure 6, is an update to Mr Gunzburg's first statement at page 8, the Figure 6 in that document.

PN331

DEPUTY PRESIDENT KOVACIC: Any objection, Mr Taylor?

PN332

MR TAYLOR: No objection. I did indicate to my friend that, we having only just recently received this updated data, thought that it might be of assistance if we could reproduce Figure 1 on page 2 of the document in a way that dealt with a shorter period. You will see that it's a period 1995 to 2016. If you go to page 3, you will see that there's this continuing unexplained significant difference between the years up to 2004, and including that year, and thereafter, and so what we haven't had an opportunity to do but intend to do is provide the Commission with a version of Figure 1 which is for a shorter time period.

PN333

Having only just recently received the data and not having Mr Fagir available immediately, we haven't done that, but we could do that in relatively short form consistent with Your Honour the Deputy President and presiding members' suggestion that in light of the fact that we've only recently received this data, both sides might want to put something further on about that.

PN334

That shouldn't stop us putting submissions about it, but that data, I think, will go to demonstrate a particular submission that we'll be putting about the percentage of employees that will be affected by this claim. On this chart, it's 40 per cent, but we suspect when you break the data down and take out the earlier years, that percentage may in fact be even higher. Whether that makes a significant difference - 40 per cent is already very large - is a matter for the Commission, but we still thought it might be useful to have that alternate dataset.

PN335

DEPUTY PRESIDENT KOVACIC: Mr Shariff?

PN336

MR SHARIFF: No opposition, but, of course, we would need to see what it is.

PN337

DEPUTY PRESIDENT KOVACIC: I think what I would envisage is to the extent that the parties wish to put further material on the CMI data, there would be, in essence, an opportunity to make any submissions that parties might wish to make and then an opportunity to reply to the other parties' materials subsequently.

PN338

MR SHARIFF: Yes, may it please.

PN339

DEPUTY PRESIDENT KOVACIC: In terms of the document which is headed "Updated Graphs AM2014/190" and comprises five pages, I shall mark that exhibit 12.

EXHIBIT #12 DOCUMENT HEADED "UPDATED GRAPHS AM2014/190"

PN340

MR SHARIFF: For completeness, I should tender the documents we have received in response from Coal Services in answer to both the order for production and the order requesting information. I will provide these in two bundles. One document is the document responding to the request or order for production of documents and the other is the document responding to the questions that were put.

PN341

DEPUTY PRESIDENT KOVACIC: No objection, Mr Taylor?

PN342

MR TAYLOR: No objection, sorry.

PN343

DEPUTY PRESIDENT KOVACIC: I will deal with each of the documents separately. I will mark the document which is headed "Order Dated 9 September 2017" as exhibit 13.

EXHIBIT #13 DOCUMENT HEADED "ORDER DATED 09/09/2017"

PN344

DEPUTY PRESIDENT KOVACIC: And I will mark the document which has in the heading "Order Dated 21 November 2017" as exhibit 14.

EXHIBIT #14 DOCUMENT WHICH HAS IN HEADING "ORDER DATED 21/11/2017"

PN345

MR SHARIFF: May it please. I am being reminded, your Honours, that there have now been two orders for production that have been issued to CMI in response to which the Commission ought to have received a vast bundle of documents in response to orders for production. I don't think it is necessary at this stage for either of the parties to tender those documents formally because both parties have sought to draw from them in the various - at least my side - in the various graphs that have been presented and my friend's side might do something else.

PN346

Deputy President, you asked a question of Dr Adam as to the raw data that was available to Dr Adam. That raw data is within - the first set of it is within the first order of production, but it is also within an updated portion of it for the 2015/16 years. It is also within the further order for production. If it is convenient - we don't have it in an easily digestible form now - but it is something that we can put into a smaller bundle, if it assists the Commission to provide that raw data.

PN347

DEPUTY PRESIDENT KOVACIC: It might be something that to the extent that parties wish to make submissions, it might be included as part of that material, Mr Shariff.

PN348

MR SHARIFF: Yes, may it please. They were the only further documents we wished to tender at this stage, subject to the right of further submission, and what I was proposing to do now was to address in oral closing submissions. I anticipate I will be roughly half an hour to 40 minutes and, from what I understood my friend to say to me this morning, he would be likely the same duration and so we should still complete before lunch, although he thinks it's ambitious.

PN349

DEPUTY PRESIDENT KOVACIC: Perhaps a late lunch.

PN350

MR TAYLOR: It could be a late lunch. I said to my friend I thought about 40 minutes. No doubt he'll say a number of things which will make me scribble furiously and that will become 45, but we'll see how we go.

PN351

DEPUTY PRESIDENT KOVACIC: All right.

PN352

MR SHARIFF: What I first wanted to start with was the statutory task. As your Honours know, the question of the statutory task on a modern award review has been the subject of examination by the Full Court of the Federal Court in two recent decisions, and something that my friend said in opening occasions us to take your Honours to those decisions.

PN353

My friend said in opening that there hadn't been any change in the position since the award was made, he said in 2008, but even if one looks at the award having been made and commencing in operation in 2008, and then he said that there's been no change since February 2015. We took that to mean that our learned friend was putting to your Honours that one needed to show a material change in circumstances or some kind of change in circumstances to warrant a variation to the modern award.

PN354

We say, with respect, that's the wrong test. Can I take your Honours first to the decision in Anglo Coal. That is the CFMEU v Anglo American Metallurgical Coal Pty Ltd [2017] FCAFC 123 decision of the Full Court of the Federal Court of Australia. Can I take your Honours to paragraph 29 of the judgment. Just to place this in context, at paragraphs 26 and 27, the Full Court sets out sections 156 and 157 of the Act. Then, at paragraph 28, says:

PN355

The terms of section 156(2)(a) require the Commission to review all modern awards every four years. That is the task upon which the Commission was engaged.

PN356

Just pausing there, this was an examination on judicial review of the decision of the Full Bench in respect of the same award but relating to redundancy provisions. Their Honours go on to say:

PN357

The statutory task is, in this context, not limited to focusing upon any posited variation as necessary to achieve the modern awards objective, as it is under section 157(1)(a). Rather, it is a review of the modern award as a whole. The review is at large, to ensure that the modern awards objective is being met: that the award, together with the National Employment Standards, provides a fair and relevant minimum safety net of terms and conditions. This is to be achieved by section 138 – terms may and must be included only to the extent necessary to achieve such an objective.

PN358

Importantly, at paragraph 29:

PN359

Viewing the statutory task in this way reveals that it is not necessary for the Commission to conclude that the award, or a term of it as it currently stands, does not meet the modern award objective. Rather, it is necessary for the Commission to review the award and, by reference to the matters in section 134(1) and any other consideration consistent with the purpose of the objective, come to an evaluative judgment about the objective and what terms should be included only to the extent necessary to achieve the objective of a fair and relevant minimum safety net.

PN360

Then if I take your Honours to paragraph 36 of the judgment on page 13, in paragraph 36, the Full Court identifies an extract of the decision of the Full Bench and that extract of the decision of the Full Bench, at 53, had as a first bullet point, you will see, a summary of the submission that the unions in that case put. The first bullet point identified that they put a submission that:

PN361

In order to succeed with its application, the CMIEG -

PN362

the same group involved in this case -

PN363

would need to demonstrate that its proposed variation was necessary to meet the modern awards objectives.

PN364

They also put a further proposition that:

PN365

The existing provisions of modern awards as made in 2010 were to be regarded as prima facie compliant.

PN366

What the Full Court said was the first dot point misstated the fundamental statutory task of the Commission in the four-yearly review. Pausing there, what the Full Court was saying, as I have taken you to in paragraph 29, was that it is not necessary for a proponent of a variation or indeed for the Commission to itself be satisfied that the proposed variation is necessary to meet the modern award objectives.

PN367

As to the second point, going on at paragraph 38, the Full Court said that, to the extent that stability of a modern award is a relevant consideration, one can accept that proposition, in other words, one can accept that one of the criteria in section 134 is to consider the stability of the award system and that is what the court was embracing there.

PN368

Can I next take your Honours to the Penalty Rates decision. That was a decision of a five-member Full Court. It's always a privilege to succeed in a case against my friend.

PN369

MR TAYLOR: I wasn't in this one.

PN370

MR SHARIFF: No, he wasn't in this one. I have just taken your Honours to Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161, and can I take your Honours to paragraph 30 on page 9. There was a contention, just to place this in context, if your Honours will recall, in the penalty rates decision, both when the matter was before the Full Bench here and in the Federal Court, that in order to succeed in its application, the relevant employer groups had to prove a material change in circumstances from 2010. The Full Court rejected that argument and, commencing at paragraph 30, their Honours said:

PN371

No other provisions of the Fair Work Act indicate that the FWC must be satisfied that there has been a material change in circumstances since the award under review was made or reviewed before the power under section 156(2)(b)(i) is engaged. The modern awards objective in section 134(1) applies to any such exercise of power but section 134(1) also does not identify any state of mind the FWC must hold. Rather, it imposes a function on the FWC to ensure that modern awards satisfy the requirements of that provision.

PN372

Again, just pausing there, there is no need in a modern award review process, at least the four-yearly review process as distinct to the section 157 process, for any proponent of a variation or for the Commission to show or to establish a material change in circumstances to satisfy the conditions for a variation. That was expressly rejected.

PN373

Further, if I can take your Honours to paragraph 32, as part of the rejection of the material change in circumstances test, the Full Court said:

PN374

The problem with this analysis is that it attributes an intention to Parliament (to confine the circumstances in which a power to make a determination may be exercised under section 156(2)) based on context in circumstances where the context is equally capable of supporting a contrary imputed intention. It is a fundamental tenet of statutory construction that the intention of Parliament is to be discerned from the statutory provisions, not from pre-conceived value judgments including those about the potential inconvenience of awards being subject to repeated or overlapping reviews. The fact that the statutory scheme required reviews commencing in 2012 and 2014 (and on a four yearly cycle thereafter) does not suggest that "review" should be given a more confined meaning than its natural and ordinary meaning.

PN375

Then, coming to paragraph 33, dealing with the objective of stability of the modern award system, their Honours said:

PN376

That is a matter which the FWC must take into account as part of the modern awards objective. It is thus a matter for the FWC to determine the weight to be given to the value of stability in the particular review it is conducting, along with the weight to be given to all other matters it must take into account, cognisant of its duty (which itself involves an evaluative assessment of potentially competing considerations) to ensure that modern awards, together with the National Employment Standards, provide the required fair and relevant minimum safety net. It is not legitimate to take one element in the overall suite of potentially relevant considerations to the discharge of the FWC's functions, such as stability, and discern from that one matter a Parliamentary intention that the scheme as a whole is to be construed with that end alone in mind.

PN377

If your Honours give me a moment. At paragraph 45 of that same judgment, the Full Court there embraced what the earlier Full Court had said at paragraph 28 and 29, which I have taken you to.

PN378

What does all that mean? We say, with respect, it would be an error to approach the review process, which is what the Commission is presently undertaking, on the basis that my clients need to show that a variation is necessary to meet the modern awards objectives or that there has been a material change in circumstances. Rather, unrestrained by those two types of limiting concepts, the task for the Commission is the one that the text directs, which is to ensure that the award here relevantly meets the modern awards objective of being a fair and relevant minimum safety net. A fair and relevant minimum safety net is just that. It is not, as we have said previously, intended to impose a ceiling of standards but a safety net of standards.

PN379

That then takes me to the clause in question here. As your Honours know, there are two components of the accident pay provision clause and our application pertains to two elements of them. The clause, as it presently stands, is a 78-week entitlement made of two components, the first 39 weeks and the second 39 weeks.

PN380

Our application can be divided into two parts, the first of which is to seek the entitlement to be reduced from 78 weeks to 52 weeks and, for reasons I will come to, we say that that is completely in line with the standard that's been established in respect of accident pay, and the second component of our application requires an alteration as between the 39 and the 13 that would remain, so that the 39 would reduce to 26 and then the balance of the 26 would be at the lower rate.

PN381

When one examines this, one does, we say, have to accept that there's a history by which the current provision came to be and, in that regard, can I take your Honours to the decision which established the standard and that was the decision of the Coal Industry Tribunal in 1980, which I think we refer to as the "January decision".

PN382

If your Honours have that decision, it's the decision of the Coal Industry Tribunal. I think we have referred to it as the "January 1980 decision" for convenience. The claim for accident pay is dealt with at pages 12 and 13 - numbered at the top. Just to place this in history, by this point in time, the accident pay standard in the black coal mining industry stood as a 26-week entitlement. Two things were done by the January 1980 decision. One was to increase the 26 weeks to 39 weeks and the second was then to extend the 39 weeks to 78 weeks. This is the genesis of the current position.

PN383

One might ask: what was the rationale of increasing it from 26 to 39 and then to 78 altogether? The best we can do, looking at page 12, you will see that there's a reference to a Mr McArdle, an organiser of the Trades and Labour Council giving evidence of what he called consistent and extensive drifting from 26 to 39 weeks as the limit in various awards, both State and Federal. Beyond that, we don't see in the judgment, other than the general factors which I will come to in a moment, what was the rationale for increasing the 26 to 39-week standard other than what was regarded as a shift in general State and Federal award standards.

PN384

You will then see, at the bottom of page 12, that a number of submissions were made on behalf of the unions as to why the standard should be increased and they are set out. Then, at the bottom of page 13, that case presented by Mr Sharp was said to have been convincing or had convinced the Tribunal that the Tribunal should exercise considerable discretion and then what is said is that accidents of a very serious nature are an unfortunate feature of the industry and adequate provision for a person injured in the industry is a proper feature of the employer/employee relationship and an order will be made extending the accident pay provision taking into account the guidelines.

PN385

The first is the unusual nature of the industry that justifies provisions in advance of the community standard. So, the first condition seems to be the unusual nature of the industry. The second was that the provision must, of necessity, be governed by the employer/employee relationship. We don't know what can be made of that much as a guideline factor. The third is that there must be a terminating point to the provision. Well, that can be accepted. The fourth is that costs can't be ignored. The fifth was an extension to 39 weeks is not sufficient satisfaction of the case that has been accepted. Just pausing there, what isn't disclosed in the reasoning is why, and that's all we have. Then the date of operation of any variation is specifically reserved.

PN386

So, all we have, at its highest, in terms of a justification for going from 26 to 39 and then going from 39 to 78 is just because of the case that was presented and not much else by way of rationale.

PN387

What has happened since then in terms of both accident pay provisions generally and in the coal mining industry we have set out in detail in the written submissions we have already provided.

PN388

Our friends rely upon a decision of Grayson DP in a New South Wales award provision, and we refer to that in writing and I don't intend to take your Honours to that now, but essentially all that Grayson DP did in the State Commission was to recognise that the coal mining industry was different because of the different safety regimes that apply and because of its inherently dangerous nature, and I will come to deal with those matters in a moment.

PN389

Could I then take your Honours to the 2015 Full Bench decision dealing with accident pay. I have a copy of that. This is Re Four yearly modern awards review - transitional provisions [2015] FWCFB 3523. We say there are three general propositions as a matter of principle. There are three propositions that we draw from the decision.

PN390

The first is a statement that the standard in modern awards would be 26 weeks; the second is that, in special circumstances, the standard can be 26 but should not exceed 52 weeks, and the third relates to the rate of pay. I will take your Honours to each of those three propositions.

PN391

Can I, in that regard, go to paragraph 211 and page 436 - this is page 436 of the Industrial Reports [2015] 2521 IR 384, and at paragraph 211, the Full Bench said:

PN392

In general we consider that the safety net accident pay entitlement should only apply for a period of 26 weeks from the time of incapacity for work due to injury or illness. This is the period of accident pay entitlement under many of the pre-reform instruments to which we have been referred. We consider that this is the appropriate period to be included as part of the minimum safety net in the awards unless there are special circumstances relating to particular awards which warrant a departure from this standard. Such an entitlement will provide support for low paid and award reliant employees at least in the initial period of absence from work due to injury. It will also limit the cost impact of providing a generally applicable accident pay entitlement -

PN393

and so on. What one can discern from at least that first proposition of the general standard being 26 weeks is a concern with the entitlements of the low paid but also a clear intention and indication that the accident pay provision wasn't intended to provide full indemnity for the full scope of absence from work due to accident.

PN394

At paragraph 212, the Full Bench said:

PN395

We recognise that there are special circumstances relating to the awards in the first category listed earlier in this decision. The pre-reform instruments in these industries provided a generally applicable accident pay entitlement of 39, 52 or 104 weeks. The accident pay provisions in those awards provided what might be considered to be a clear national standard for the particular industries as described in the Award Modernisation Decision 2008. For similar reasons as were given in relation to the Black Coal Mining Industry Award 2010 we have decided that the previous accident pay entitlements in these award areas should be maintained as part of the minimum safety net.

PN396

Now, my friend relies upon that portion of this judgment to say, "Aha, the Full Bench was identifying that the Black Coal Mining Award established a clear national standard. We have dealt with that in our written submissions based upon what was said against us when we made this application and the matter was dealt with by the Full Bench presided by Watson VP. We don't want to repeat what we have said in writing, we have been heard on that point and we say that matter has been determined and my client was free to take up the current application.

PN397

The Full Bench goes on, having made that observation, and says this:

PN398

However, having regard to the evidence and submissions in the present proceedings, and given the purpose of modern awards in setting minimum terms and conditions for employees in particular industries or occupations consistent with the statutory objectives, we do not consider that the accident pay entitlement in any of the awards should exceed 52 weeks. We consider that there is a difference in inserting such provisions in awards by arbitral determination at this time and in the context of the present proceedings and a decision to maintain provisions which were still in operation in an award.

PN399

But they go on to say:

PN400

We do not consider that it is necessary for the minimum award safety net to provide for a period beyond 52 weeks. In so deciding, we note that the evidence presented suggests that there is considerable scope in some of the industries for the safety net entitlement to be supplemented through collective bargaining.

PN401

Of course, your Honours will know that that idea is entirely consistent with the factors listed in section 136, being the need to promote collective bargaining so that one has a minimum safety net from which to bargain, not a ceiling.

PN402

In relation to the third matter I said that arises from this decision relating to rate of pay, your Honours will see that, at paragraph 214, reference is made to the ACTU having put forward a proposal in relation to the application of a formulation of words known as the "appropriate rate of pay", which it was said was modelled on the Black Coal Mining Industry Award. The Full Bench said - just picking up midway through:

PN403

Whilst there was no amendment to the union applications before the Full Bench, it was said the proposed clause was suitable with necessary adaptations to be included in the awards. In this regard it was said that the reference in the draft clause to "appropriate rate of pay" to be used for the purpose of calculating the accident pay entitlement was intended to reflect the way in which the rate of pay is described in a particular award. For example -

PN404

and then the example is given in relation to the Building and Construction Industry Award and then this is said:

PN405

It was explained by the ACTU that "appropriate rate of pay" would not include over award payments, shift allowances or overtime. We do not consider that it is appropriate or necessary in order to achieve the modern awards objective that accident pay entitlements to be included as part of the minimum safety net in the awards should include over award payments, shift allowances or overtime.

PN406

The Full Bench, I should note, at paragraph 216, invited the industry partners to adopt a more standardised clause and indicated that would be desirable, and the survey I am about to take your Honours to shows that, although some uniformity was achieved, there wasn't a model clause as such in terms of rate of pay that was determined.

PN407

When we come to what has happened in other awards, can I take your Honours back to what was marked as MFI1. If one looks at the Airline Operations Ground Staff Award, which is the first award, all these awards up to page 9 are ones where there was a 26-week standard, but your Honours will note, at clause 23.2 of that award, accident pay is defined to mean the differential between the statutory workers compensation rate and the weekly amount that would have been received by virtue of the award had the employee been on paid personal leave as at the date of the injury. But then it says: "(Not including over award payments)."

PN408

So, when one looks at what by virtue of the award an employee would be paid for paid personal leave, that is set out at clause 35, which is in the right-hand column, and personal carer's leave makes a reference back to the National Employment Standard. Your Honours know, for the purposes of the National Employment Standard, personal carer's leave is to be paid at base rate of pay, and base rate of pay is defined in section 16 of the Fair Work Act to exclude bonuses, incentives, loadings, penalty rates, overtime and the like.

PN409

So, the rate of pay for personal leave is at the base rate of pay, but when one injects that rate of pay into clause 23.2(a), so it's the differential between the statutory workers compensation legislation and the weekly amount that would have been received by virtue of this award had the employee been paid on personal leave, and we take that to mean base rate of pay as at the date of injury but not including over award payments, it seems to us - and I'm not suggesting that this isn't without ambiguity or debate and a matter, perhaps, that needs to be considered - but it seems to us that the proper interpretation of that clause is that it's to be the base rate of pay, not including over award payments, which leads to the conclusion that what's to be paid is the award classification rate. That's the way we read that.

PN410

Now, that is consistent with - if I take your Honours to the next award, which, I should say, this award, the Building and Construction General Award, has a different formulation, but you will see, at clause 3.1, accident pay is said to be the weekly payment made to an employee by the employer that is the difference between the amount of workers compensation received - so statutory workers compensation rate - and their ordinary time hourly rate for 38 hours of work, but in this case what is included is an RDO-accrued entitlement prescribed by clause 33 for shift work.

PN411

Now, importantly, the final sentence provides that the ordinary time hourly rate does not include over award payments, shift loadings or overtime and, again, we read that clause to mean that other than in respect of shift work, which is said to be expressly included, the ordinary time hourly rate is the rate prescribed in the award because it is to exclude over award payments.

PN412

If take your Honours to the next award, the Business Equipment Award uses, you will see in clause 24.1, the employee's ordinary time rate of pay, not including over award payments. The next award, the Concrete Products Award, takes the paid personal leave as at the date of injury, but then, if I can take your Honours to the Fast Food Industry Award, that has a slightly different formulation. You will see that in the accident pay provision, what's provided is the difference between the statutory workers compensation rate and the employee's weekly wage payable under the award for the classification of work.

PN413

So, there is a different formulation of words, but what's consistent is the words in brackets: "(not including over award payments, shift loadings and attendance bonus payments)."

PN414

What seems to be a feature consistent with what the Full Bench said in, I think, paragraph 14 of the 2015 decision, is that each of the awards have been amended to make plain that the entitlement is to be paid at the differential between the statutory compensation rate and the rate of pay that the employee would receive for ordinary hours or a base rate, but not inclusive of over award payments, in other words, award classification rate.

PN415

When one comes to awards which have a slightly greater entitlement, at page 9 of MFI1, the Labour Market Assistance Industry Award has a 39-week entitlement and that is to be paid on the definition of accident pay at the employee's ordinary rate of pay, a slightly different take on the formulation, but not including over award payments.

PN416

Then, when one comes to the next award, the Air Pilots Award, this is a different award, and when we looked at the 2015 decision and subsequent decisions, it seemed to us that the Air Pilots Award hadn't been the subject of any review - it seems to have fallen between the cracks - but, in any event, this does have a different - "under the radar", I'm told - yes, all right, very funny.

PN417

Clause 22.2 - I suppose I shouldn't use the word "cracks" in the context of aeroplanes - clause 22.2 provides that the amount of make-up pay will be the difference between the workers compensation entitlement and the amount of salary, plus allowances, that the pilot would have received.

PN418

Now, that seems to be different to all other awards because it seems to be providing full indemnity to the employee for the period of accident pay of 52 weeks. By "full indemnity" I mean everything that the employee would get by way of salary and allowances.

PN419

The other awards that have a 52-week entitlement, as your Honours will note in the following three pages, all have a variation of those three themes that I've raised before, which is either the paid personal leave rate, award classification rate, or weekly rate or ordinary rate, but all of them have the formulation excluding, or not including, over award payments, which is common to all.

PN420

So, having conducted that survey, one comes back to the award in question here. One sees two differences. The first is that the entitlement is greater than any other award in absolute terms because it's a 78-week entitlement and not a 52-week entitlement.

PN421

Secondly, one sees that, in clause 18.2(a), in relation to the first component, the first 39 weeks, we don't see the words "exclusion of over award payments". So, for the purpose of this award, the way, in practice, at least at the level of the award as opposed to under enterprise agreements, the entitlement is stated for the first 39 weeks, employees are to receive the rate that they would get when on personal leave and, because the personal leave in the award is set by reference to the National Employment Standard, that takes you back to the base rate of pay. Base rate of pay excludes loadings, allowances, overtime, but we don't have the formulation above award - over award payments, so it doesn't take you back to the award classification rate, whereas with the second component of 39 weeks, that is said to be referable to the rate prescribed from the time of the classification of the incapacitated employee as the differential between the amount of compensation paid to the employee and the rate prescribed for the classification. So, that's the classification rate. That second component, as it stands, the second 39 weeks, is in line with the standard as it currently is in other awards.

PN422

Our application, as I said, is to bring the 78 weeks to the 52-week standard, which we say the Commission said in the 2015 case, that even allowing for special circumstances, awards shouldn't have a standard greater than 52 and anything greater than 52 should be supplemented by way of collective bargaining.

PN423

As to the second of it, what we seek to do is to adjust the 39 weeks to 26 weeks to bring it in line with the other awards, but, at the moment, our application does not seek the addition of the words "excluding above award payments". In other words, the employees would get what they would get had they gone on paid personal leave and, in that regard, we say it's a differential entitlement and we don't seek to adjust that part of it.

PN424

The other thing I should make clear is that the intention, if it wasn't made clear in our application, is that the provision, if varied, would only operate from the date of variation forward, so that it would not retrospectively affect the entitlement of an employee who is currently injured and currently receiving an entitlement. So, an injured employee who's on the precipice of 26 weeks wouldn't have their entitlement altered, and likewise an employee on the precipice of 52 weeks wouldn't have their entitlement altered.

PN425

As I said earlier, the force of why I was going to those authorities from the Full Court is to say we don't need to persuade your Honours that there has been a material change in circumstances to warrant the difference and there is no onus in these cases, as has been held by previous decisions of the Full Bench. What we have to convince your Honours is that the setting of the standard in the way we say would ensure that the modern award is a fair and relevant minimum safety net, no more and no less. That's the only test.

PN426

We say, just to take up the factors that were said originally - I'm sorry, the other thing I should have added is that your Honours will need to be satisfied that it is necessary to include such a provision in the award to meet the modern award objective pursuant to section 138, and we say your Honours would comfortably do that with a 52-week standard in the way we put it.

PN427

Taking up the factors, the unusual nature of the industry, the nature of injuries that occur and the like, we say on the evidence that's been presented, your Honours would be satisfied that there isn't any relevant distinguishing feature about the black coal mining industry in terms of it being more dangerous relative to other dangerous industries or at more risk of having fatalities or at more risk of having long-term injuries than other industries.

PN428

Can I take your Honours to some of the evidence about that. First, I can I take your Honours to Mr Gunzburg's first statement - that's exhibit 1 - at pages 10 to 11. What you will see is that Mr Gunzburg has, based upon data obtained from Safe Work Australia, produced a table to identify the frequency rate of serious claims per million of hours worked and the incidence rate of the coal mining industry in each year from 2009/2010 to 2014/15, which is for when the dataset was available, to identify - and you'll see on page 11 highlighted in purple that the coal industry's frequency rate is roughly at the rate, or roughly below and some years roughly above, the rate for all industries, and the incidence rate for serious claims per thousand employees is slightly above, but what your Honours will note is that the rate for both topics as against other industries is below some of the other industries, looking at fabricated metal product manufacturing, cement, construction, grain mill and the like.

PN429

The point of this evidence, and we think our friends have missed the point of this evidence, was to identify for the benefit of the Commission that to the extent that it might be said the black coal mining industry is special and unique in relation to safety or the frequency of injuries or the frequency of serious claims is more special in the black coal mining industry, the point of this evidence is to say that this isn't made good on the best available data we have.

PN430

That is also supported by - if I can take your Honours to Dr Adam's report, exhibit 10, at page 8, item 5, Dr Adam says, in Appendix A, Table 2, he has simplified statistical material provided by Safe Work Australia, so I think it's the same dataset, and then sorted it and you will see that mining overall has a lower long-term injury frequency rate than the all industry average and that coal mining ranks behind a number of your other industry sectors, and your Honours will see that at page 11.

PN431

My friend, I think in his cross-examination, was seeking to suggest that Dr Adam was simply reproducing documents that were provided to him, but what Dr Adam was saying was that what he was observing here was consistent with his own professional experience in the field and, in that regard, if one goes to pages 14 and 15 and looks at Dr Adam's CV, one can see that Dr Adam, to take up some perhaps subtle point that was sought to be made that he might not have been independent, Dr Adam fully disclosed on page 14 of his CV that he was retained as a consultant by Yancoal, but also he is retained by other bodies: Queensland Fire and Rescue; he's the chief medical officer at Pacific National; he's on the National Standard for Health and Assessment of Rail and Safety Workers; and, down the bottom, Dr Adam was engaged by the Department of Mines, a government body, to assist with the revision of the Queensland Coal Industry Health Scheme.

PN432

So, the idea that Dr Adam has some limited or jaundiced view of trends in the industry, both in mining or across the board, we say isn't justified and, at the end of the day, my friend never squarely put it to Dr Adam that he wasn't independent or that his professional opinion wasn't such that he couldn't express the views that he did.

PN433

If I can then support what I'm saying about the trends about what both Mr Gunzburg and Dr Adam identified about the rates of long-term injury frequency rates, Dr Adam's evidence was more Queensland-focused because of the different dataset, and if you go to page 4 of 16 of Dr Adam's report, my friend asked Dr Adam questions about the fall in the rate of fatalities. We don't understand what impact that had on the evidence.

PN434

Ultimately, what Dr Adam was saying is that there has been a long-term fall and, of course, once you get at a lower level, statistically, if there's one or two additional fatalities, that's going to look like an increase in the rate, but the overall trend has been a reduction. That was the same in relation to the trend for Queensland long-term injury frequency rates at Figure 3. A table about which Mr Taylor didn't cross-examine is the one at page 7, which is the number of days lost, that is, the lost time injury severity rates at Figure 6 on page 7.

PN435

Again, as I say, the purpose of that evidence is to show that there isn't anything particularly unique about the black coal mining industry and also that the trends historically are downwards from a point from 1980.

PN436

Our friends, I think, wish to redo the data and present it from shorter time periods, but we say that that's only going to look at trends from, at best, 1990 or 2000 and one has to have a look at the overall trend that's been occurring in the black coal mining industry.

PN437

Just on similar topics, if I can go to Mr Gunzburg's statement, the first one, exhibit 1, in terms of the New South Wales perspective, at page 6, the rolling average for lost time injuries and lost time fatalities also shows a downward trend from where the industry started in 1980 and when the accident pay provision was introduced, and in relation to the particular issue of length and duration or number of claims per thousand exposed to risk and the duration, can I take your Honours to those updated graphs that we have produced.

PN438

As I understand it, your Honours, there isn't any dispute that the graphs at exhibit 12 are based upon now the updated data that had been provided by CMI. I think the only difference between us is how should that be represented by reference to time periods, but Mr Taylor will tell us. Looking at the updated Figure 6, this is accident payments per thousand exposed to risk.

PN439

Just before I go to all these figures, one has to accept that we're never going to have a precise dataset or an exact science on these materials, but we know that Coal Mine Insurance, as best as it can, is the repository of the data such as it's going to be for black coal mining, so we're just all labouring under the same dataset, but what Figure 6 shows is, we say, a declining number of accident payments per thousand exposed to risk.

PN440

Then if I can come to the next graph, which deals with a different point, which is the duration of accident payments made in the period from 1995 to 2016. Allowing for what Mr Taylor might say about a different period of time by which to examine the data, if one looks at the entire period from 95 to 2016 as represented, one can see that the vast - I shouldn't use the word "vast majority" because my friend takes issue with it from time to time - but the majority of accident payments are made for a duration of 26 weeks. That's the 60 per cent figure.

PN441

One can see then that a further 9 per cent relate to accident payments made for a duration of 39 weeks. The red represents 27 to 39; five per cent represents the period from 40 to 42; eight per cent represents the period in excess of 52 weeks, and then 18 per cent represents the per cent in excess of 78 or more.

PN442

Mr Taylor cross-examined Dr Adam on the basis that he was allegedly misleading or misrepresenting the evidence based upon the data set, but as Dr Adam pointed out because of what he saw as an abrupt end or drop off of the document, in the data that he was given he produced a different table based upon the similar data set which was table 8 in the appendix to his statement. If I can take you to that and if I can ask your Honours to open up and keep open page 12 whilst also keeping open figure 1 in exhibit 12, which is the pie chart.

PN443

My client in the evidence that it has produced to the Commission hasn't sought to shy away from or conceal any fact that there are employees, injured employees, who receive accident payments in excess of 52 weeks, and indeed there are employees who receive accident payments in excess of 78 weeks. That is a fact. As Mr Taylor put to Dr Adam, if one looks at page 12, on the data set as presented there, there are 9.4 per cent of those in excess of 52 weeks, but if one compares the two, if one looks at the 18 per cent on the pie chart, the 18 per cent represents people who have always been – not people who have been, past a point where they've never been covered in any way for accident pay. So we're not dealing with alteration of those people's entitlements. Although I think my friend has a different way of looking at that.

PN444

If the first portion of our claim is accepted, which is changing the first element from 39 weeks to 26 weeks, those claims that would have a differential impact would be the nine per cent between 26 weeks and 39 weeks, because their entitlement for that 13 weeks period will not be at the personal rate of pay; it will drop to the award classification rate of pay.

PN445

DEPUTY PRESIDENT KOVACIC: Wouldn't it potentially impact on those that go beyond the 39 as well?

PN446

MR SHARIFF: Yes. Yes, it would. So in a sense it impacts upon 9, 5 and 8.

PN447

DEPUTY PRESIDENT KOVACIC: Yes. But arguably also the 18 as well? Because at some stage they'll have to go through that 39 to 78 plus ‑ ‑ ‑

PN448

MR SHARIFF: Yes. Yes, they will. Yes, that's so. Then in relation to the next aspect of our claim it would impact upon the people above the 52 week line, which is the eight per cent, and of course the 18 per cent, who would've gone through that, and that's accepted. But we say, having regard to what the Commission has said about the standard being 26 weeks but in special circumstances no greater than 52 weeks, a setting of a fair and relevant minimum safety net is the 52 week standard. That we say is what flows from the 2015 decision. And the second part of our claim is the adjustment within the 52 week standard is one that brings the award into line with the 26 week component albeit without exclusion of the over-award payments. So it is better than - the 26 weeks is better than the award standard, and the second component of the 26 weeks would be essentially at the award standard.

PN449

DEPUTY PRESIDENT BULL: Mr Shariff, in terms of - while you're on the statistics, do you make anything of what appears to be greater accidents for underground as opposed to open cut? All the stats are rolled into one, aren't they?

PN450

MR SHARIFF: They are. Save that at page 9 of Dr Adam's report ‑ ‑ ‑

PN451

DEPUTY PRESIDENT BULL: Yes.

PN452

MR SHARIFF: ‑ ‑ ‑he does look at the incidents rate broken up between surface and underground, and just looking at those figures underground seems to have a higher incidents and I think could be understood because of the different types of trades and professionals who work at underground mines as opposed to above ground mines and open cut scenarios, but, no, the award currently doesn't distinguish between those two sets.

PN453

DEPUTY PRESIDENT BULL: No. No, do the underground stats on their own make them exceptional or not?

PN454

MR SHARIFF: We don't have any data that breaks down, and I don't think any data is available other than the data that Dr Adam has referred to by reference to incidents rate, but I'm just – I'm being reminded that there's another one at page 9 of Mr Gunzburg's first statement in exhibit 1, which is figure 7, which I think discloses the similar trend, but there's a differential or a higher rate of incidents of long-term injury frequency rates in underground as opposed to surface. But I can't say that I can take it much further than that. The award hasn't ever distinguished between those two in terms of ‑ ‑ ‑

PN455

DEPUTY PRESIDENT BULL: No, no, only that you were taking us to it and saying how other industries have got a higher rate of accidents. I'm just wondering how that compared with if you looked at it only at the underground.

PN456

MR SHARIFF: Yes, I don't – part of the trouble, Deputy President, is that the data that's kept by Safe Work Australia and the ABS only looks at coal mining as an omnibus group rather than a ‑ ‑ ‑

PN457

DEPUTY PRESIDENT BULL: Yes.

PN458

MR SHARIFF: Unfortunately I can't point to any further data set on it. Unless there's anything further that's what I wish to say by way of oral subsequent to what we had said in writing subject to what my friend says, both orally and in the further submissions, but unless we can be of any further assistance, those are our submissions.

PN459

DEPUTY PRESIDENT KOVACIC: Mr Taylor, thank you.

PN460

MR TAYLOR: Thank you. Just on that last question from Deputy President Bull, my recollection, although I wasn't able to turn it up immediately, was that part of the cross-examination of Dr Gunzburg did take him to some material that he had annexed which did include data that differentiated and separately recorded statistics for underground mining and surface mining. That might be something that we could, without spending too much time on it by way of a lengthy submission, just draw to the attention of the Commission by way of a supplementary note along with the other material that we are going to address.

PN461

I do say as I stand up that I think it's likely that my submission would be in the order of 45 to 50 minutes, but I'm content to start and keep going or alternatively content to take a lunch break now or at some point during the middle of the submissions. It may be my friend needs to respond to some aspects of it as well, so that time probably needs to be taken into account as well.

PN462

DEPUTY PRESIDENT KOVACIC: I think the Bench is happy to bat on.

PN463

MR TAYLOR: Yes, of course. Can we start then by examining – opening again the decision that my friend identified as the starting point for the current provision. He handed it to the Commission, 1980 decision of the Coal Industry Tribunal, and he identified that the relevant pages are from half-way down page 12 and following, and he took the Bench to some guidelines for the eventual order, one of which was an extension to 39 weeks is not sufficient in satisfaction of the case that's been accepted, and indicated that there wasn't clear statements as to why that conclusion was being drawn.

PN464

One thing that is clear from what preceded it was that the Commission in that case, the case as my friend indicated, to extend accident pay from 26 weeks to a longer period, received evidence as to the fact that injuries in the industry keep workers away from work for periods in excess of 26 weeks. So that's identified at the bottom of page 12 and a number of witnesses gave evidence to that effect. At the top of page 13, the fourth numbered submission, second line:

PN465

There are more serious accidents extending beyond 26 weeks.

PN466

The next full paragraph dealing with the evidence in this case of the employers, the joint coal board, was again:

PN467

The proportionate number of claims which result in periods of total incapacity in excess of 26 weeks is not great but the proportionate cost is.

PN468

So it was clearly the case in that case that it was the length of time that workers were off work that was a significant factor in the decision, and so when one is comparing industries and when one is considering trends what's clearly a critical matter is the extent to which in this industry there are indeed workers for whom they are off work and relying on Workers' Compensation payments beyond 26 weeks, and so while my friend took you to a lot of statistics about general issues about the number of days lost and the like, what one we say needs to focus on is the evidence as to the number or percentage of employees in this industry who are in fact off work for periods in excess of 26 weeks. The latest material tendered by my friend, exhibit 12, tells us that such in the order of 40 per cent of 26 weeks, and for reasons that I'll come to, we know that if their application in its current form had been in effect for the last 20 years, the period covered by the chart figure 1 of exhibit 12, then 40 per cent of injured workers would have had lower income during the period that they were incapacitated as a result of being injured at work. That's a very significant percentage. That is the figure that we say should be focused upon.

PN469

Can I next go, like my friend did, just sort of setting the framework of where we're up to by dint of the authorities, I wanted to start with an authority that my friend hasn't handed to you but we were told he would, and so we didn't make copies of it, so I was wondering if he could provide it. It's the decision found in 248 IR at page 1, the decision of the Full Bench in 11 February 2015 which reviewed this particular clause and determined to remove the sunset provision. We would have of course brought copies, but why print more paper if they were going to so – and they said they would, and I see that Mr Sebbens has those copies. I'm grateful to him.

PN470

DEPUTY PRESIDENT KOVACIC: It's good to see cooperative workplace relations in practice.

PN471

MR TAYLOR: Indeed. They're the people with all the money of course so it seems sensible that they have the printing cost.

PN472

So can we start – this of course is not unfamiliar to this Bench. Indeed two members of this Bench were part of this decision headed by Bolton J, and it was considering a sunset provision, and at paragraph 71 – sorry, from paragraph 65 onwards the Bench is dealing with the Black Coal Mining Award 2010 in the context of an application by one of my clients, the CFMEU, to delete the sunset provision and at paragraph 71 the Bench referred to their earlier decision in which they had decided to remove the sunset provision and the Bench says this:

PN473

As stated in our decision –

PN474

The earlier decision –

PN475

we consider that the accident pay provision in the Black Coal Award provides a clear national standard for the particular industry as described in the award modernisation decision 2008.

PN476

So the starting point is that we currently have a provision which can be properly described as a clear national standard consistent with the award modernisation decision. We accept that, as is the case demonstrated by different accident pay clauses and different awards that you can have different provisions which can also be said to be a clear national standard, but the one starting point that we say we can't gainsay is that the current clause is such a standard. We accept that that doesn't mean that you put the pen down because the Commission is capable of considering whether a different standard is also capable of being a clear national standard. But certainly there's no reason why one couldn't decide that this one is appropriate, and I couldn't help smiling when my friend was reading from the decision of the Full Court in the penalty rates case. He read that passage in which the Full Court identified that the parliament is not concerned with the inconvenience to the Commission of repeated and overlapping reviews. Parliament may well not be concerned, but I don't think my friend is suggesting for a moment that the fact that the Commission is being asked to reconsider a clause as part of the very same four year review is not capable of being a relevant matter. I accept what my friend's submission is, that it's not conclusive, but it's capable of being considered a relevant matter. That this clause has already been considered as part of this very same four yearly review, and here we are again.

PN477

Can I now turn to, what I call, the accident pay case. This is the decision 3834 that my friend has taken the Commission to, and I trust the Commission still has access to that decision. My friend took the Commission to paragraph 212, and of course in that paragraph the Full Bench identified, by reference to the first category of the awards that were being considered, that in respect of the case that had been presented to the Full Bench in that case, special circumstances warranted a different approach than the Bench was going to take in respect of the other awards. In that case it was said that the accident pay provisions in those awards, and by that of course – by this stage there were no accident pay provisions in those awards. They'd all expired as a result of the sunset clause, but they had previously been in those awards, and the Bench said:

PN478

Provided what might be considered to be a clear national standard for the particular industries as described in the award modernisation decision.

PN479

The same language is being used as was used in respect of the current clause in this award. The Bench goes on to identify that the similar reasons as given in the Black Coal Mining Industry Award case:

PN480

We have decided that previous accident pay entitlements should be maintained, however –

PN481

It says –

PN482

having regard to the evidence and submissions don't consider the accident pay entitlements of the award should exceed 52 weeks.

PN483

The first point we make about this is it's clear that the Bench in that case was not stating a standard that would necessarily apply beyond the evidence and the submissions before the Bench in that case. It was talking about those awards and it's talking about a context in which, having regard to the evidence and submissions in the present proceedings, a view was formed that in respect of the awards, not awards generally, it shouldn't exceed 52 weeks.

PN484

The Bench then identifies by reference to a footnote a difference in inserting provisions in awards by arbitral determination at this time and the context of the present proceeding and a decision to maintain provisions which were still in operation in an award, and the footnote is to the decision that I took the Commission to a moment ago in which the Commission decided to retain the existing accident pay provision in this award.

PN485

So there's no suggestion that we suggest that can be read into that paragraph that the Commission was in any way criticising its earlier decision. To the contrary it was explaining why for those awards it might be appropriate to bring down the maximum for 52 without that being inconsistent with a view that an award like this one, that's always had a higher provision, should be entitled to continue to have it.

PN486

We say that's a fair reading of that paragraph, and contrary to the submission of my friend, there is no principle that one would discern that was established in that case. After all it was not a case that proceeded on any basis other than it was a determination of the particular awards in question, and to draw from it some wider position like an old style test case that there was an attempt to create a test case standard, was I think what my friend is trying to do, so well beyond what was being decided in that case. If there was a test case standard one would have presumably had a single clause that came out of it. There's a variety of clauses that came out of it.

PN487

Now can I turn to the question of the approach? My friend has identified by reference to, what I call, the redundancy pay case, the Federal Court decision involving the change to the redundancy pay clause of this award, and also the penalty rates decision; that the Commission does not need to identify the change. That is accepted in light of that authority it's not necessary to identify a change to justify a new provision. I don't think we diverge on this but I think this is important because it hasn't been said yet the Commission still needs a reason to change. It needs to have a reason. This is not some sort of arbitrary process. The Commission needs to be satisfied that an existing clear national standard is not a standard that meets the modern award objective. It needs to be satisfied of that. There needs to be a reason for that. Clearly, change could be one reason. It's not, we accept, necessary that we must demonstrate change. The change could be a reason, and indeed the absence of any change may well be a factor that's taken into account in deciding not to alter a provision. So much must, we say, be accepted.

PN488

In the redundancy case there was of course a change. There was a change that had occurred which led the Commission there to think a further change was appropriate. In the penalty rates case there was extensive material put before the Commission as to contemporary circumstances and how they would give rise to a different outcome. In both cases the Commission identified a reason to do it, and that's important for the reason that my friend quite rightly drew attention to from the penalty rates case, that is, the provision in the modern award objective, section 134(1)(g), the need to ensure a stable and sustainable modern award system. That just emphasises that this Commission won't act arbitrarily and alter things just because it seemed like a good idea today when it wasn't a good idea yesterday. Stability is important, so there needs to be a good reason to take a different approach than the approach that comes before.

PN489

My submissions are now structured on the following basis: to try and identify what are the reason or reasons that the employers say should lead this Commission to take a view that his clause is one that isn't meeting the modern award objective, and identify by dint of four headings what are relevant matters that the Commission would take into account in deciding this question. Let me go down that path now. Let's look at the reason that the employers identify. We respectfully say they do not point to any relevant change. They appear not to identify any evidence which would suggest that the length of time that workers are off work as a result of injury has substantially changed over the years. There is some general suggestion that since 1970 there has been less lost time off work, but, as my friend quite rightly identified, that doesn't appear to have been the basis of the decision in the first place. It's not really clear why they place reliance that that is an important change.

PN490

I should say what else they don't appear to be relying on, and that is, cost; factors of cost. So we don't find in their submissions or evidence any suggestion that a factor that the Commission could take into account is the cost of this scheme. What one finds, I think this is a fair submission to make, the only basis, the only reason that's put to this Bench as to why this should change is a reason which is demonstrated starkly by the timing of the application. It was filed one month after the Full Bench's decision that determined the accident pay provisions in the particular awards that were before it, and my friend's submissions, if nothing else, make this clear. There's really just one reason, and they say, "Well, other awards aren't above 52 weeks and so ours shouldn't be either". That's a reason. You won't hear from me a submission that that is something you can't take into account. It is something you can take into account. We accept that. But there are a number of other things that we say would be taken into account that would not lead to a view that that decision that I've already taken the Commission to and made submissions about, would mean that all other factors can be put aside and we end up with an outcome of the sort that is being sought by the employer.

PN491

By that I want to deal with it under four headings, and I think each of these headings are ones that would be accepted as covering matters which are relevant to this Commission's determination of the matter. Firstly, the history. Whenever one is considering a clause it is almost inevitable that the history is going to be relevant; secondly, special features of the industry; third is the impact on employers of the proposal versus the status quo; and fourth is impact on employees of the proposal versus the status quo.

PN492

But before I do can I just say something about what my friend did when he took the Commission to the schedule of other awards? The first thing I want to say about that is that when one looks at that schedule one does not find the consistent approach to accident pay. There are a variety of clauses that have different terms in them and it's phrased in different ways. One of the things though my friend identified in respect of the award clauses other than the air pilots one is that they all work off the basis and include words to the effect that the accident payments would not include over-award payments. What is clear from the passage that he took the Commission to is that was the position that the ACTU sought in that case. There was the applicant in effect in that case was putting it forward on that basis, and that meant ultimately that the Commission in that case did not need to consider that the question of whether accident pay like sick pay should be, and like annual leave for that matter, should be the person's normal pay without overtime and shift penalties and the like, or should be on some other basis.

PN493

The only other thing I want to say about this is I think was important for my friend to do. He has made clear that his client does not seek to alter what they are seeking in this case. He places some emphasis on the way other awards have done it which he says assist the Commission to favour his case. But neither party are here today on the basis that there's any suggestion that what's being sought is that there be some change to the award in respect of what my friend has called the first period, currently the first period of 39 weeks, which they seek to reduce to 26 weeks. That is important to note because a change in that regard would have all sorts of different consequences which we haven't explored because it hasn't been a matter that's before the Commission on this case.

PN494

The history: in the penalty rates case I don't ask the Commission to open it, but you perhaps can note at about paragraph 60 of that decision the Full Court was considering one of the grounds which was that the Commission in that case had erred in focusing on the contemporary context, and what the court identified was that if one read the specific conclusion that was the focus of the attack one should read it in the context of the decision as a whole, and it's clear that in that very lengthy decision the Commission had not only considered the contemporary context, but also considered the history, and the court for that reason put that ground aside.

PN495

What is clear, I'd submit, is that the history of this clause is a very important consideration, and the one aspect of particular importance is that this clause has remained unchanged for 37 years, and accepted by the industrial parties throughout that period as being in an appropriate form. Ever since the arbitration decision that my friend took you to, and the actual variation occurred in the subsequent decision, but ever since that time it's been accepted by the industrial parties that this was an appropriate clause. That is a relevant matter this Commission can take into account. It is not determinative. I accept that of course, but the fact that when the modern award was made the clause has these provisions by consent is a relevant matter for the Commission to consider that it's appropriate terms in a modern award context.

PN496

The second reason why history is important is because every award is in truth an amalgam of the historical nature of that industry. Clauses come into an award and are varied and are set during their lengthy period by the parties or in arbitral proceedings by the Commission mindful of the rest of the award, and so one has to generally be, we would submit, slow to take a particular clause of the award and focus on it without understanding that to alter it will alter the package that's been created over time. In any particular award you'll find rates of pay a little different to another award, overtime provisions a little different to another award. There are variations between awards. If you play with one, the overtime rates in one award because another award has a lower overtime rate, without having regard to the fact that the rate of pay is different or the shift penalty is different, you forget that these things are done on a package, and that general proposition is no less true in respect of this type of clause. We're dealing with an award that's been created over time. It has a variety of conditions, some are favourable, and one has to be very careful, as a general proposition, in treating a clause in isolation in the way in which the employers ask the Commission to do because of the fact that it will alter the industrial balance. It will alter the industrial balance that's established over a considerable period of time.

PN497

They were the two key things that we draw from the history. I should have said from the outset, and I'm sure the Commission accepts, would have processed it on this basis anyway, that what I'm doing today is adding to the written submissions that we filed on opening. In those written submissions we said some further things about the history and the way in which the award was developed, but I wanted to emphasise those two particular things.

PN498

Can I now turn to the second heading, the special features of this industry, and we identified those in our written submission as filed at paragraph 66 and following, and we rely on those submissions. This industry as is clear from the evidence is unique. It has its own health and safety regime which we've identified by way of legislation. It is a quite different type of work than the work that is found in other industries. In particular, underground mining with its unique characteristics does identify this industry as special and different, and that's not just a submission that I'm making; it is clear that that is what parliament have considered over the decades. This industry had its own tribunal, because it's different to other industries. This industry has its own health and safety legislation because it's different to other industries. It can't be gainsaid that this is a special industry and has been treated so by legislature.

PN499

In our written submission we took the Commission to the particular conclusions of Grayson DP in the New South Wales Commission. The New South Wales Commission in 2005, and I pause just to interpose, there's no suggestion the industry has changed in any significant way since 2005. Grayson DP in 2005 heard extensive evidence from both employers and unions in that case, and heard a lot of evidence about risks of injury in the industry encountered by coal miners, and the risk management strategies and how successful they've been and said this:

PN500

It's not to the point as I'm disposed that the New South Wales Coal Mining compares favourably or unfavourably with other industries in terms of occupational health safety performance or whether and to what extent there have been improvements in that regard in the past decade or so. It can be accepted I think for the purposes of the issues to be tried here that the approach taken within the coal mining industry to the compensation of injured workers has historically been and remains unique, and the premise upon which the CFMEU application is essentially based is one of fairness and reasonableness –

PN501

And so forth. No different conclusion, we say, would be available in this case.

PN502

Deputy President Bull, I indicated we'd provide a note, but turning to the very next page I see that I should have given Mr Fagir credit for the fact that he's provided me with a note that deals with that very question of underground mining, so can I just give the references. It is to annexure DG3, that is, Mr Gunzburg's first statement, has an annexure DG3, and at pages 134 and 139 it deals with some Queensland data, Queensland Mines and Authority Safety Performance Health Report, and that data we say when examined demonstrates that Queensland lost time due to injury for underground coal mining is significantly higher than for underground metalliferous mining, and similarly significantly higher for surface coal mining by comparison to surface metalliferous mining. So those pages allow some comparison between the three different types of mining, and further indicate the permanent incapacity frequency rates in the industry are steady or perhaps increasing slightly over time, and that there's been no change in lost time due to injury in the last five years.

PN503

So I've got two headings left. The second heading, impact on employees, you'd be unsurprised to hear I'm going to spend a little bit of time on. Impact on employers, which is the third heading, I can deal with quite quickly because it has not been a feature of the applicant's case. They haven't put on any evidence that they can't afford the premiums or even that this change will somehow affect the premiums to any significant degree. There is no submission that the current provisions are in some way deleterious to employers. That has to be a very significant factor in all the factors that this Commission will take into account. The fact that, and I know we spent some time on it this morning, but the fact that we do not find all employers represented, and that some employers are not part of this proceeding, is perhaps explained by the fact that this is just not an issue that appears to have any sort of impact on them, or of any concern to them. We haven't heard what it is, and we certainly haven't got any evidence of it.

PN504

So let me turn then to the final heading, which as I said, I'll have to spend a little more time on, the impact on employees. The starting point here: to understand who we're talking about. We're talking about men and women who have gone to work and been injured. They're now at home as a result of an injury which I think from the Commission's general knowledge, one can start from the proposition is overwhelmingly not their fault. They would not be injured but for their employment. The second thing to do is understand what accident pay is doing; not giving them some sort of windfall; they're not getting rich on accident pay; they are receiving an amount above the minimum that Workers' Compensation provides them to a level no higher than the sick leave pay, and that's only for the first 39 weeks, and after that it lifts them only to the minimum amount in the award.

PN505

What this application is seeking to do, let's not beat about the bush, is to take this group of workers who are now at home, on the employer's factual example these people have a spouse and two children, who are at home, and say that it's appropriate, given the modern award objective, to have a safety net; that an appropriate safety net is that they should have their income reduced from north of one-and-a-half to two-and-a-half thousand a week to, on the employer's case, $500-odd a week, and that's a safety net. With respect, it isn't. But in any event the Commission needs to be very mindful of the impact that this change would have, and that impact we have identified in our submission, and so has the CMIEG in their submission.

PN506

Different assumptions apply, but could I trouble the Commission to open each of those two written submissions. In the CMIEG's case they didn't deal with this at all in-chief. The impact on employees passed them by, but in reply they did indeed identify the impact, but could we start with the submissions that were filed by my clients as the opening submission, and the heading, Impact of the Change on Employees is at page 9, and at page 10 and over to 11 one finds a table for New South Wales and a table for Queensland. Does the Commission have those available to them? I think we have a spare copy if not.

PN507

COMMISSIONER BISSETT: It would be useful. There was a problem with the mail from Melbourne.

PN508

MR TAYLOR: Was more than one copy needed or ‑ ‑ ‑

PN509

DEPUTY PRESIDENT KOVACIC: Yes, it would be helpful, I think.

PN510

MR TAYLOR: If your Honour, the Presiding Member, could ignore Mr Thomas's scribble on this, and focus only on that which was there. So we're looking at page 10 of the submission, and what this scenario has posited is an undermanager who does not have a spouse or dependents, both of those matters were matters of criticism of the example. It wasn't criticised that the actual calculation for such a hypothetical person would work out this way; it was just that who we had chosen was criticised. As to that I think can we just say that as is clear from the admission that my friend made this will have a more immediate impact on staff, that is, on the APESMA covered employees including the undermanagers. They are people who are not as a group tend to be covered by enterprise agreements, and any change to the award will actually directly impact on them.

PN511

As for dependents and children that makes a difference to the statutory weekly rate. For this person, $408, I think strictly it's $408.60, but $408, and as we'll come to when we look at the employer's submissions, with the spouse and children it's something closer to $560, which would of course affect the calculation, but what one sees is that the impact for those in New South Wales occurs in two different ways. The first is a change which does not arise from the employer's desire to reduce the period from 78 to 52. That could be achieved of course by simply reducing the second period from 39 weeks to 13 weeks, and indeed it's still not clear, despite Mr Shariff putting submissions, what basis there is said to be to reduce the first period. All I've heard is that the totality should go to 52. But why the first period should come down has not been explained, and the impact of that change is demonstrated here.

PN512

You'll see the bulk of the impact is in that 27 to 39 weeks for those in New South Wales, and in Queensland, which is the next chart, it's the whole of the change. The whole of the impact is because of the cause of reducing that first period from 39 to 27 weeks for which there doesn't appear to have been a proper, or any case positive. So that's important to understand, and also important to understand quite how significant. So this individual, this hypothetical individual's, 27th week is now having their income reduced from $3600 a week to $408.60 a week. That is a very significant impact, and a lesser but still significant change in respect of the employees in Queensland.

PN513

I hope, but perhaps this is a vain hope that the Commission might have my friend's reply submissions. I don't know whether we have copies. I'll hand up two copies printed in different ways of my friend's reply submission, and I do so because I just wanted to emphasise that evidence even on their assumptions there is still some significant impacts for these injured workers. So if one goes to page 15 here the employers have posited a hypothetical worker, and in this case it truly is a hypothetical worker because the notion that there are New South Wales mine workers working a five day Monday to Friday eight hour shift roster is apparently something that is relatively uncommon if unheard of. But on this case, even on this case, one sees – and this person has got a spouse and two children, so the statutory weekly rate is I'd said before 560, I correct myself, 595.80, we still see a significant difference in their income as a result of the employer's desire to reduce the first period from 39 down to 26. As well as the second period reducing down from 78 down to 52. If I've said 79 at various points, which I might have, 78 is of course what the current figure is. I think I've got 39 and 79 mixed up in my head.

PN514

The more realistic example perhaps is the next page, page 16. We now have the New South Wales mine worker working a seven day, 12 hour day/night shift roster, and on that much more realistic example still assuming the maximum amount that could be obtained by Workers' Compensation and still assuming one of the lower classifications in the award, one sees again the very significant impact from weeks 27 to 39, and the further impact to reducing it from 78 down to 52, and in Queensland the employers, like us, accept that the impact is in the period 27 to 39, and it's not an insignificant impact on either of their two assumptions, the Monday to Friday roster or the seven day roster. I draw attention to something which I'm sure is just a typographical error on page 17. You will see in the table that the difference is calculated at something like 8850 but the total has been carried over from the previous table erroneously. The total of course should be the same as the higher figure, 8850.

PN515

So we're not apart when one considers these different hypothetical examples. Neither side are saying on that hypothesis the figures would be different. We just have come up with different figures. But regardless of the hypothetical worker in question the same point, there is a very significant impact which takes me to exhibit 12. If the Commission could go back to exhibit 12, this is the updated table and we will, as my friend indicated, look at providing a further update of it that only examines the period from 2005 onwards because the data before then seems to be quite different. But what this table tells us is that on the employer's current case 40 per cent of people who turned up at work and have been injured to a point where they claim Workers' Compensation are going to be affected by this claim in its current form; 40 per cent. Not an insignificant amount. And the employers have not explained, as I said, why the first period has to be reduced from 39 to 26. If the Commission didn't reduce that first period from 39 to 26 then there would still be something in the order of 30 per cent of workers would be affected by the deduction in the entitlement. So we're talking about quite significant numbers and it may well be that when we do the other figures that the numbers affected are even more significant.

PN516

DEPUTY PRESIDENT BULL: So, Mr Taylor, this chart of this figure 1 ‑ ‑ ‑

PN517

MR TAYLOR: Yes.

PN518

DEPUTY PRESIDENT BULL: ‑ ‑ ‑we don't have to worry about people that might be covered by enterprise agreements?

PN519

MR TAYLOR: You don't have to worry about them. I think when one is considering the immediate impact – well, two things to say about that: first, my friend said today on his feet that it's not the intention of his clients that any change would have an effect on someone who is currently injured. It's not clear to us that that has been reflected in what might be said to be the application, that is, the letter to the Commission asking for this to be considered, but certainly if there was to be any change it would be important that the change reflects what my friend says is the intention of his client, that it not impact on people who were injured prior to that date, and that no doubt is a matter of wording that would need to be considered.

PN520

But the second thing of course, Deputy President, is that the extent to which it would impact would depend initially on the question of what is in enterprise agreements and the like. What one finds when one goes to the enterprise agreements is that there's a variety of provisions, some of which actually refer back and effectively incorporate the award clause, so those would still be affected if the award changed. Others replicate the award clause in its current form, and then of course wouldn't be affected until that award came to be re-negotiated. Agreement I should say. The agreement came to be re-negotiated. I have to say at apropos that, given that we're talking about a safety net, it is important to understand that the Commission, when setting safety net conditions, has to be very alive to the fact that when it comes to enterprise bargaining it's important to protect conditions of what I'm going to call the minority. Here we've got, of the workforce as whole, only a small proportion are going to be people who are going to be affected by an accident pay clause, and so when one is bargaining one has to be mindful of the fact that if one is in a classic bargaining situation where there's sort of demands on one side and offers on the other, that any clause that only affects a minority of employees has got the risk of not being able to be dealt with in a way, depending on the approach of the employers of course, but traditionally ‑ ‑ ‑

PN521

DEPUTY PRESIDENT BULL: No, I understand all that, but I'm just saying the 40 per cent here ‑ ‑ ‑

PN522

MR TAYLOR: Yes.

PN523

DEPUTY PRESIDENT BULL: ‑ ‑ ‑does that exclude people covered by enterprise agreements?

PN524

MR TAYLOR: No. As we understand the data – so, the data source is described by Mr Gunzburg in his second statement. In his second statement he says figure 1, which has been updated in exhibit 12, represents the percentage of the length of the periods of accident pay in total over the periods '95 to 2016 in pie chart 4. So he has taken the data, which has come from CMI, and which my friend described as the repository of data, he has taken the data from CMI and produced it in graph form, and what CMI are recording is the length of time that a person injured in any given year receives accident pay through to the point where it ceases.

PN525

DEPUTY PRESIDENT BULL: No, what I'm ‑ ‑ ‑

PN526

MR TAYLOR: So that would apply to both enterprise agreement covered employees and award employees.

PN527

DEPUTY PRESIDENT BULL: Yes. You've submitted that 40 per cent of people would be affected by the application by the employers, but we know that it's possible, but it depends on what their enterprise agreement says.

PN528

MR TAYLOR: Yes. Yes. We acknowledge this of course, there will be people covered by an enterprise agreement who won't be immediately affected by it. That is true. The point is that if we're talking about a provision in the award itself, we are talking about in a sense as to the impact of the underlying award, and 40 per cent of those who are injured who, if covered by the award, would be affected. That's the probably the better way to put it. So to the extent to which there are non-agreement covered employees, and agreement covered employees who are covered by a clause which incorporates the award one wouldn't expect substantially different - no reason why it would be different so we're still talking about a significant proportion of people who would be affected by this change.

PN529

As to the numbers affected, Dr Adam did give some evidence about the number affected, that is, the numbers who would claim accident pay beyond 52 weeks. In light of the cross-examination it would appear that that aspect of his report at least was not something that he had, to put it at its best, focused on adequately, and the data that the employer otherwise explored is exhibit 12, and it would appear to be the better data to rely on in that regard.

PN530

We will also, I think when we provide this pie chart, just add a note, if you can just make a note of this, CMI updated the data in light of I think a question from the Bench saying, "Well, this data is November 2015", they've updated the data, and that update suggests that there are fewer whose period of injury was less than 26 weeks, and more whose period of injury was greater than 52 weeks simply by dint of the fact that we've got a large data period for that year, for the 2016 year.

PN531

So in conclusion the proposal on the table is to reduce, firstly, as I understand my friend, from 78 to 52 weeks; and, secondly, to reduce each period. As to the first the only apparent reason is that in respect of different awards, on the submissions and evidence put there, it was thought that that was an appropriate standard. We say that when one considers the history of this award the impact on employees and the lack of impact on employers there's no reason why that should apply here.

PN532

The second change to reduce the two periods, well, in particular the first period from 39 to 26, there doesn't appear to be any substantial reason why that should occur, and given the impact on employees of that change, we would strongly submit that there is no proper basis as to why the Commission would think that is necessary from a safety net standard.

PN533

I hope I didn't transgress my approximate estimate by too much. I'm sure the Commission is looking forward to getting away to lunch, but I hope that's been of some assistance, and as I said if we could have an opportunity just to provide those couple of extra bits of material? Thank you.

PN534

DEPUTY PRESIDENT KOVACIC: Thank you. Mr Shariff, anything in reply?

PN535

MR SHARIFF: Yes. I'll be brief in reply, but there are some points I do need to make. The first point, just going back to the principles about the statutory task, my friend said - I think he accepts you don't have to show a material change in circumstances, but what he then said was you needed to show something that shows the clause was not meeting the modern awards objective. That submission is wrong. It's wrong because the Full Court in the Anglo Coal - the redundancy case that I took you, to stated that it is not necessary in the modern award review process to show that a clause or an award is not presently meeting the modern award objective to justify the change, and that's plain.

PN536

Can I then turn to the next submission my friend made about what the Full Bench found in the decision that I think – it's hard to refer to these, the sunset date transitional provision case [2015] FWCFB at paragraph 71 by reference to what was said to be the national standard. This is repeating what we've said in writing but of course the subsequent Full Bench presided by Watson VP and the other two Members of this Bench made it plain at paragraph 24, that's [2016] FWCFB 684, made it plain in paragraph 24 that all that was being determined in the earlier decision was the removal of the sunset provision and was only determining that issue from a transitional point of view.

PN537

The other point we'd make is that the words, national standard, that my learned fastens upon are words that are drawn from the modern award review decision of 2008. Perhaps I can just provide the citation, [2008] AIRCFB at paragraph 87 and 88, and what the Full Bench in the modern award review was saying was that what they would do with the accident pay provisions is in each industry determine whether there was a national standard, so the search was in the context of consolidating several State awards whether there was a uniform standard. The terminology of national standard – I understand why my friend relies upon the words national standard to say, well, that means that's the watermark, but rather what the words, national standard, in proper historical context mean is the search for something that was uniform.

PN538

DEPUTY PRESIDENT KOVACIC: I think that's why the Airline Pilots Award didn't have a transitional provision included and why it wasn't part of the earlier Full Bench's consideration in terms of that.

PN539

MR SHARIFF: Yes. I see. That would explain why that has stood outside it. Your Honours, my learned friend then made a submission by reference to the other awards in MFI1 but they disclosed there isn't a consistent approach. Our point was there is a consistent approach. The vast majority of awards have got 26 weeks as an entitlement; one has 39; and a handful have 52. But also what's uniform across them is the inclusion of the words, "not including over-award payments".

PN540

In relation to what my friend dealt with by way of history, my friend speaks about industrial balance and the like, and the fact that provisions in any award are an amalgam of historical compacts and compromise. Well, that is so, but the fact is that they needed to be considered within the current statutory context. The current statutory context is that the awards pursuant to the regulatory regime are to operate as a minimum safety net, and are not to operate as the product of the arbitral or industry wide compacts that might have been struck in decades and years gone back, and that is the very reason the parliament, part of the reason that the parliament has conferred upon the Commission the jurisdiction to review awards to ensure the particular statutory purpose of being a minimum safety net together with the national employment standards is met. We also point out in the context of the redundancy pay provisions, your Honours will recall, by way of industrial balance the unions came along and applied to excise a part of the redundancy pay provisions of the Black Coal Mining Award. The employers put a different case about what the redundancy entitlements should be, but nevertheless the Full Bench determined a different standard; not one that the employer asked for and not one that the unions asked for, but a different one. Obviously in any of these award review proceedings, whether are alterations to a particular clause, that needs to be considered in the context of the award as a whole, but it happens routinely.

PN541

Which brings me to the other point that my learned friend raised that the employer group, that is my client, hasn't put forward any different award provision or award variation that we seek. We've put forward what we say the award should be varied to reflect. The unions have just opposed that. As in the redundancy case it is open to the Bench to determine a different standard; something different to that which exists now, and not what the employers seek. That is routinely done. Obviously enough if what my friend's point is that if something different was to be done that it would change what his side has to say, well, the parties ought be given the opportunity to comment on that, and I'll come to make a particular point about an alternative approach when I come to deal with the impact on employees point in a moment.

PN542

The second point my learned friend raised related to the special features of the industry, and the special features of the industry that were put, aside from the peculiarities of underground mining and, Deputy President Bull, we were going to take you to the additional page. My friend pointed to one page where there was some data about underground mining. But can I also provide a reference to Mr Vickers' evidence, annexure AV38. There is some data that breaks down a subset to underground mining as opposed to surface mining at page 505 based upon a New South Wales Mine Safety Performance Report from 2016. I think it's fair to say that data together with the data that my learned friend has taken you to shows that there are some differences between underground mining and surface mining in relation to the frequency and incidents of long-term injury rates. But I don't think I can answer the other question which is, is there any difference between that, the comparison between that and the balance of industry.

PN543

But just coming back to what my friend said were some special features of the industry, my friend said that the parliament of State and Federal persuasion had expressed an intention that the coal mining industry should be the subject of special regulation. Well, that is so. That fact that there was a Coal Industry Tribunal, and we can talk about this for hours, had more to do about securing industrial harmony in light of the Second World War and the like, but in any event the Coal Industry Tribunal was disbanded. But the fact that parliaments have enacted particular safety regimes for particular industries doesn't answer the point. The same applies in construction. Rail industry has particular safety regimes that apply to it, including national network rules as does the electricity industry. The fact that each of those industries is inherently dangerous or have specific safety regimes isn't a point of difference for the purpose of accident pay.

PN544

Can I then take your Honours to what was said about impact upon employees? Can I take your Honours to my friend's submissions that he provided, that was their primary submissions, and to the table to which you've been taken? As my friend fairly conceded about the table, the first table that my friend took you to was the analysis that was conducted by reference to the New South Wales regime, and he's fairly conceded they used as a reference point an undermanager which, you'll see from footnote 18, is made apparent. Your Honours will see that, and we accept if our change was accepted, the vast differential in entitlement would fall by reason of the change from 39 to 26 weeks.

PN545

In relation to the position in Queensland, which is set out in our friend's submissions at paragraph 51, you'll see that again the differential primarily arises between 39 and 26 weeks, but there is no differential post 52 weeks. The reason for that is because you'll see that the statutory weekly rate equalises at a point in time post 26 weeks, and that point is also made apparent if I can take your Honours to our reply submissions. You'll see at paragraph 50 we set out two tables assessing the position in Queensland, and the differential, if any, in Queensland arises if our change from 39 to 26 weeks was accepted. In New South Wales on our two alternative tables there is a change in the 39 to 26 week position, and there is a smaller - albeit we accept there is a change in the difference from 78 to 52 weeks.

PN546

If against our client's position the Commission was to retain the 39 week component but change the second component from 78 to 52, the effect of that would be that in Queensland for those employees covered by the award in Queensland there would be no relative change at all. In respect of those employees in New South Wales if the first component of the entitlement of 39 weeks was to be retained but the second component changed there would be an alteration only for those employees who are incapacitated for greater than 52 weeks, and as we've pointed out by reference to the balance of what I've said there are few employees who fall into that category, and as I've said by reference to the table in Dr Adams's report, which is appendix 8, there was something in the order of nine per cent greater than 52 weeks. One looks at alternatively that that is around the same figure albeit we accept for the people in figure 1 of exhibit 12 there were people who exceed the 52 weeks who on the way through would be affected. But that would be – I'm not urging that. They're not my instructions, but that would be an alternative way of ensuring that the entitlement in this award is a fair and minimum safety net in line with the standards that have been imposed on other awards, and appreciating to the extent that there are any differences in this industry appreciating that that might be acknowledged by the differential entitlement; one of 52 weeks, but secondly, as I pointed out in the other submissions I made, the differential entitlement in the 39 week component, which is said not to be exclusive of over-award payments.

PN547

Your Honours, in relation to impact on employers it's not correct that we've said nothing about that. We've said something, but we've said something albeit limited about that. You will recall there was some evidence as to how premiums are determined for the purposes of the scheme. We have said something about that. But our more relevant point, and this ties in with the last set of points my friend was making based on the questions asked by Deputy President Bull, which is the coverage of enterprise agreements. Our more relevant point is the need to promote collective bargaining by the maintenance of what is a safety net, not a ceiling. We say it's not an answer to that point to refer to what the current evidence is as my friends point to in their submissions to say well, there are pockets of the industry, particularly in relation to staff where employers it is said are particularly in transition and don't wish to bargain. Our point isn't answered by that. What we say is that by the proper maintenance of a safety net that is intended to encourage collective bargaining which is one of the factors in section 136, and as to the impact of those employees who are covered by enterprise agreements, as my friend I think ultimately conceded, that will depend upon the particular entitlement contained in their enterprise agreement.

PN548

I'm not sure I accept as a matter of law the correctness of the proposition that my friend said; that where an enterprise agreement prescribes an entitlement by reference to the award that a change in the award entitlement would impact upon that. Ultimately one would have to look at the enterprise agreement and look at the particular terms of the enterprise agreement to determine that.

PN549

In relation to what I said about the intention of the application if it was to be granted, yes, we accept the proposition that the variation couldn't retrospectively alter people's rights. That was the point of it. If there needs to be particular wordsmithing to ensure that that is done we will of course attend to that if, of course, the Commission accepts our application.

PN550

DEPUTY PRESIDENT BULL: So just on that point, Mr Shariff, does that mean anyone with an existing claim irrespective of where they fall within the ‑ ‑ ‑

PN551

MR SHARIFF: Yes. That's right.

PN552

DEPUTY PRESIDENT BULL: All right.

PN553

MR SHARIFF: We had made this point in writing and to answer something that my friend said of course it can't be gainsaid that we are dealing with employees who have been injured at work, and of course that's accepted. But we don't accept the proposition that because they are employees who are a minority that they are forgotten. Indeed the provisions that my friend took you, the 145 or so enterprise agreements that contained accident pay provisions indicate that accident pay seems to be a feature of enterprise agreements. So we don't accept that, and of course my friend says that. His clients are two fairly large industrial unions, who have built their reputations on protecting the interests of minority groups, but just going to the point about enterprise bargaining, if there is a standard then that may or may not impact upon those entitlements, but we don't have any intention that people who are currently on a claim would be affected by it.

PN554

DEPUTY PRESIDENT BULL: Sorry, Mr Shariff, you may have answered this already but are you talking about the date of the accident or the date of the claim?

PN555

MR SHARIFF: Yes, I'm reminded that the entitlement operates by reference to being in receipt of compensation as opposed to the date of injury, and that's the entitlement is referrable to date of first receipt of workers' compensation, and I can understand why it operates that way, because date of injury, you might still continue to earn – you might be on sick leave or you might continue to be on your usual earnings.

PN556

Unless there's anything further we can assist with, but I note my friend wishes to say something in writing and if we had an opportunity to respond.

PN557

MR TAYLOR: Yes. I also wanted to – and I do reply to this, there was one thing that my friend said was a new point, and secondly I just wanted to deal with that question that Deputy President Bull raised. The new point as I understood it which he hadn't dealt with at first is this concept that this Commission can come up with a different outcome of that which has been sought by the employer, and he later on spoke about how an available option might be not to alter the first period but only alter the second. So much we can accept is within the realms of that which is available to the Commission as a matter of procedural fairness. One thing I think is clear though there has never been any suggestion in this case that the method of calculation for the two periods, how the amounts are calculated is being sought to be varied, only the periods in question. And I just say that to be absolutely clear about that, because it would be an entirely different case if there was any suggestion that the method of calculation as against the period of time was being considered.

PN558

As for this issues of what might be generically said to be the grandfathering it's of course not an issue for the Commission to make any change. If the Commission is minded to make a change, then, in my respectful submission, the appropriate course would be for the Commission to make that decision and then invite the parties to put submissions as to the way in which it might be done because the last things that just fell from my friend, I'm not entirely sure are right, but I'm not in a position to deal with here and now as to the impact upon when people make claims and the like. I just think it might be better, if there was to be any change that we have an opportunity to express a view as to why the change should be grandfathered using one set of words rather than another, if that's appropriate.

PN559

MR SHARIFF: I accept that. I think that would be an appropriate way to proceed, but of course subject to the Full Bench coming to any view about alteration. As to my friend's first point, that's right. We haven't sought, as part of our application, a variation to the method of payment for the first portion, and whether it's 26 or 39, and I thought I'd made that point by saying here that that's a relative difference to the other awards. May it please.

PN560

DEPUTY PRESIDENT KOVACIC: Thank you. Just in terms of the timetable for the provision of any further submissions that the parties may wish to, in terms of what I might suggest is that both parties may wish to provide any material in response to the CMI material that was provided yesterday within a fortnight, and then another week after that for anything in reply that you may wish to beyond in terms of the other parties.

PN561

MR SHARIFF: That would be convenient.

PN562

MR TAYLOR: Thank you. Yes.

PN563

DEPUTY PRESIDENT KOVACIC: So those dates would be 8 and 15 December respectively.

PN564

MR SHARIFF: May it please.

PN565

DEPUTY PRESIDENT KOVACIC: All right.

PN566

MR TAYLOR: Thank you.

PN567

DEPUTY PRESIDENT KOVACIC: We thank everyone for their submissions. We're going to reserve our decision.

ADJOURNED INDEFINITELY [2.09 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

DAVID MAURICE GUNZBURG, AFFIRMED................................................ PN61

EXAMINATION-IN-CHIEF BY MR SHARIFF................................................ PN61

EXHIBIT #9 THIRD STATEMENT OF DAVID MAURICE GUNZBURG DATED 22-11-2017.................................................................................................................................... PN69

THE WITNESS WITHDREW............................................................................ PN100

DAVID MAURICE GUNZBURG, RECALLED............................................. PN119

CROSS-EXAMINATION BY MR TAYLOR................................................... PN119

THE WITNESS WITHDREW............................................................................ PN141

DAVID MAURICE GUNZBURG, RECALLED............................................. PN151

THE WITNESS WITHDREW............................................................................ PN152

KEITH WILLIAM JAMES ADAM, SWORN.................................................. PN155

EXAMINATION-IN-CHIEF BY MR SHARIFF.............................................. PN155

EXHIBIT #10 EXPERT REPORT OF DR KEITH ADAM DATED 28/02/2017 PLUS ANNEXURES........................................................................................................ PN173

CROSS-EXAMINATION BY MR TAYLOR................................................... PN173

THE WITNESS WITHDREW............................................................................ PN194

KEITH WILLIAM JAMES ADAM, RECALLED.......................................... PN201

CROSS-EXAMINATION BY MR TAYLOR, CONTINUING...................... PN201

EXHIBIT #11 DOCUMENT TITLED "EXPOSED TO RISK (WORKERS COVERED BY CMI WORKERS COMPENSATION INSURANCE POLICIES)........................... PN319

THE WITNESS WITHDREW............................................................................ PN322

EXHIBIT #12 DOCUMENT HEADED "UPDATED GRAPHS AM2014/190" PN339

EXHIBIT #13 DOCUMENT HEADED "ORDER DATED 09/09/2017"....... PN343

EXHIBIT #14 DOCUMENT WHICH HAS IN HEADING "ORDER DATED 21/11/2017" PN344