AG2001/3888, Transcript of Proceedings [2001] AIRCTrans 2320 (13 September 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER WILKS

AG2001/3888

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under Section 170LJ of the Act
by Newstan Colliery and Another for
certification of the Newstan Colliery
Staff Enterprise Agreement 2001

SYDNEY

10.08 AM, THURSDAY, 23 AUGUST 2001

Adjourned sine die

PN1

THE COMMISSIONER: Could I have the appearances, please.

PN2

MR S. GORDON: If the Commission pleases, I appear on behalf of Power Coal Pty Limited in the capacity of Manager for Human Resource Services.

PN3

MR S. KEMPTON: If the Commission pleases, I appear on behalf of the Australian Colliery Staff Association.

PN4

THE COMMISSIONER: Thanks, Mr Kempton. Yes, Mr Gordon.

PN5

MR GORDON: Commissioner, the application is made today by Power Coal Pty Limited and the Australian Colliery Staff Association under section 170LJ of division 2 of Part VI of the Workplace Relations Act for certification of the Newstan Colliery Staff Enterprise Agreement 2001. The application was filed with the Commission on 6 August 2001, and included statutory declarations by the company and the Australian Colliery Staff Association, these statutory declarations set the details of how the application satisfies the requirements of certification under the Act and I don't propose to go through that detail and rely on the statutory declarations, so I can answer questions if the Commission requires me to do so.

PN6

Commissioner, in summary the agreement applies at Newstan Colliery only and it applies to all staff who are not otherwise covered by the Power Coal Staff Enterprise Agreement 2000, that was recently certified by the Commission in December of 2000, and that agreement applies at all the other sites operating at Power Coal. Power Coal Pty Limited is a constitutional corporation and is able to make an agreement under division 2 in the form of a section 170LJ agreement. The process of negotiation and explanation of the terms of the agreement certainly was conducted in a manner that was appropriate to the circumstances of the colliery and the particular needs of the 28 staff concerned at Newstan.

PN7

Explanation in detail of the terms of the agreement included all staff being provided with written copies of the agreement as the negotiations proceeded and concluded with a presentation to all staff by the negotiating term to allow proper consideration prior to them approving the agreement, and certainly the explanation included consideration of the grievance procedure set out under Part VIII of the agreement. The duration of the agreement is until 22 December 2003, which coincidentally coincides with the expiry date of the Power Coal wide staff enterprise agreement, which would give everybody the opportunity at that point in time in the future as to whether they wanted to have their own agreement or operate under one company wide agreement again, and that was a request of the employee and the company in considering the negotiations for this agreement.

PN8

The agreement provides for remuneration and conditions that are over and above those conditions contained in the Coal Mining Industry, Supervisory and Administration Award, and thereby satisfies the no disadvantage assessment required under the Act. In terms of remuneration it provides for two set wage increases and the ability to make performance payments subject to the achievement of specific targets which can be negotiated at the site level and is consistent with the same remuneration provisions provided in the company wide EA, in fact they are somewhat nearer terms. Commissioner, this is a second generation staff EA at Newstan and it sets the platform for a further positive and productive relationship between the staff and the company and I would commend the application to you for certification this morning.

PN9

THE COMMISSIONER: Thanks, Mr Gordon. Mr Kempton, do you have anything to add to that?

PN10

MR KEMPTON: No, Commissioner. We support the application just made by the employer and for further details we refer to our statutory declaration signed by Wendy Clews.

PN11

THE COMMISSIONER: All right, thank you, Mr Kempton. Mr Gordon, I only have one question in response to your invitation to ask in Part VIII, the grievance procedure, 8.1(d) the final step in that process says that if the matter remains unresolved then it is referred to the Australian Industrial Relations Commission. In order to avoid disputation between the parties and argument before the Commission about jurisdictional aspects of the resolution of disputes notified to the Commission can you tell me what it is that the parties intend for the Commission to do once a matter is referred to it.

PN12

MR GORDON: Yes I can, Commissioner. The reference of the matter being referred to the Australian Industrial Relations Commission for resolution would involve the Commission exercising its powers as constituted under the Workplace Relations Act. In fact, the agreement does not confer any additional power on the Commission in the form of otherwise resolving a matter under the agreement.

PN13

THE COMMISSIONER: Does it mean, I appreciate what you have just said, but what you said creates even more ambiguity. Does it mean that the Commission can exercise powers of conciliation and if necessary arbitration or what?

PN14

MR GORDON: It means it can exercise its powers of conciliation and/or arbitration insofar as they are allowed under the Workplace Relations Act.

PN15

THE COMMISSIONER: So allowable award matters can be arbitrated by the Commission but other matters under this agreement which may not be allowable award matters are not open for arbitration.

PN16

MR GORDON: That's correct, unless of course the parties in the process of bringing the matter to the Commission otherwise agree.

PN17

THE COMMISSIONER: Otherwise agree, okay. Do you concur with that, Mr Kempton?

PN18

MR KEMPTON: Yes I do, Commissioner.

PN19

THE COMMISSIONER: All right, thank you. Just for clarity, Mr Gordon, I'll obtain a copy of the transcript of this morning's proceedings and attach it to the file so that if there is an argument about a matter which is not an allowable award matter and the company does not concede that arbitration is appropriate then you have an appropriate means of recording what the parties intended.

PN20

MR GORDON: If I may make a request, Commissioner. I would request that we be provided a copy of that transcript so that the parties can put it in their own files.

PN21

THE COMMISSIONER: Yes, I'll do that. This is an application under section 170LJ of the Act for the certification of an agreement to which Power Coal Pty Limited staff employed at Newstan Colliery who are parties to the agreement and the Australian Colliery Staff Association are parties. Having heard the submissions of the parties this morning and having examined the supporting documentation I'm satisfied that the application meets the requirements of the relevant section of the Act and the rules and accordingly I will certify the agreement. The agreement will be known as the Newstan Staff Enterprise Agreement 2001. The agreement will come into force from today's date and it will remain in force until 22 December 2003. I will issue a certificate to that effect and place it on the file. On that basis these proceedings are adjourned.

ADJOURNED INDEFINITELY [10.16am]