AG2001/5132, Transcript of Proceedings [2001] AIRCTrans 2549 (2 October 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

AG2001/5132

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under Section 170LS of the Act
by Bayswater Colliery Co Pty Ltd and Others
re Bayswater/Mount Arthur North Enterprise
Flexibility Agreement 2001

SYDNEY

4.01 PM, MONDAY, 10 SEPTEMBER 2001

Adjourned sine die

PN1

THE SENIOR DEPUTY PRESIDENT: Good morning, I'll take appearances please.

PN2

MR S. BILLING: If it please the Commission I appear for Bayswater Colliery Co Pty Ltd.

PN3

MR P. JORDAN: May it please the Commission I appear for the Construction, Forestry, Mining and Energy Union.

PN4

MR I. MORRISON: If it please the Commission I appear on behalf of the Australian Manufacturing Workers' Union.

PN5

MS A. COLLINS: If the Commission pleases I appear on behalf of the Communications, Electrical and Plumbing Union.

PN6

THE SENIOR DEPUTY PRESIDENT: Who wants to kick off? It's the employer's application.

PN7

MR BILLING: Your Honour, this is an application for certification of an agreement under section 170LS of the Act. The agreement has been made under division 3 of part VIB of the Act. If I could just take you through the material very briefly. The agreement application for certification was lodged on 21 August 2001. Your Honour will note from the stat dec of Mr Smith and Mr Jordan that approval was given for the agreement on 3 August 2001.

PN8

THE SENIOR DEPUTY PRESIDENT: I think it was actually filed on 23 August but you're still within the 21 days, Mr Billing.

PN9

MR BILLING: Sorry, the copy I had didn't have the Registry stamp on it, your Honour.

PN10

THE SENIOR DEPUTY PRESIDENT: You've snuck in.

PN11

MR BILLING: Your Honour, the agreement was reached after a process of some 15 meetings involving negotiations involving most of the people if not all the people who are in the room for the certification and the negotiations culminated in a paid meeting and you'll notice from the stat decs at clause 5.1, both stat decs, that there were meetings involving the elected representatives of all three unions and an extensive consultation process involving a 6 hour presentation to all employees and a ballot conducted by the unions giving approval to the agreement.

PN12

The agreement itself in its terms meets the requirements of the Act. It has a dispute settlement procedure in terms which meet the requirements of the Act in clause 21. The nominal expiry date of the agreement is 3 years from the date of certification and all of the requirements we submit have been met as required by the Act and attested to in the stat decs of the general manager of the company Mr Smith and the vice president of the union Mr Jordan. We seek an order certifying the agreement from today's date.

PN13

THE SENIOR DEPUTY PRESIDENT: Just before you resume your seat. It is the whole of the single business I take it from the stat decs and so is the entire operation of the company.

PN14

MR BILLING: Yes, your Honour.

PN15

THE SENIOR DEPUTY PRESIDENT: Thank you. Could you have a look at clause 3 of the agreement, parties to the agreement, I'd just like a little clarification if I may. Firstly, it says that the agreement is binding on all of the above parties who are set out as being the company and the three unions. Under section 170MA of the Act the agreement is also binding upon the members of the unions and I think that order perhaps be conveyed to the workforce as the agreement may not be entirely clear on its face. The query that I also have is in respect of which employees is the agreement made, is it all employees of the company or is it the employees engaged in the classifications that one can find at table 1 on page 18 or if neither of those in respect of whom.

PN16

MR BILLING: It is the latter, your Honour, it is all employees of the company in classifications set out in the tables to the agreement.

PN17

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Billing. What I will do I think, after I hear from the unions, but if I do certify the agreement I might ask that the transcript of today's hearing be attached to the copy that I certify so that it is clear as to those matters that you've just explained to me, thank you.

PN18

MR JORDON: Your Honour, the application before the Commission today is for the certification of the Bayswater/Mount Arthur North Enterprise Flexibility Agreement, 2001. It is made pursuant to division 3 of the Workplace Relations Act 1996. The agreement partially settles the matters found to be in dispute in C No 22841/1995. In order for the agreement to be certified it must satisfy the statutory test contained in section 170LT of the Act and the Commission should be in receipt of a statutory declaration made by me that addresses the specific requirements of section 170LT.

PN19

The CFMEU submits that the Bayswater/Mount Arthur North Enterprise Flexibility Agreement 2001, satisfies the requirements of section 170LT of the Act. The Bayswater/Mount Arthur North Enterprise Agreement 2001, replaces the agreement known as the Bayswater Colliery Co Enterprise Agreement 1998 which was certified by the Commission in C No 22717 on 7 July 1998 in accordance with the Workplace Relations Act 1996. The agreement is binding on the CFMEU and its members who are employees of Bayswater Colliery employed in either the production or engineering streams.

PN20

Consistent with the agreements work model the production stream is further subdivided into mining, coal handling and preparation and service substreams. The engineering stream is subdivided into mechanical and electrical. The agreement has been made in regards to the company intending to operate the Bayswater and Mount Arthur North Operations as an integrated operation, it is a stand alone agreement. The agreement provides for employees a security of employment provision in clause 8 where it states:

PN21

In the absence of exceptional circumstances it is the intention of the parties that no full time employee will be made redundant or retrenched during the life of this agreement.

PN22

Further in regard to the use of contractors the agreement states at clause 30, contractors:

PN23

The company will erode the job security, earnings or working conditions of full time employees ...(reads)... for all our full time employees.

PN24

Your Honour these are important provisions and very much an integral part of the agreement. The agreement provides for a clause 21 a disputes and grievance procedure, but in particular, I refer to the grievance procedure at subclause 21.2.5 where a dispute is referred to the Commission as the appropriate industrial authority for resolution. It is the clear intention of the parties that the Commission is empowered to settle the matter by determination. In final we - - -

PN25

THE SENIOR DEPUTY PRESIDENT: Do you suggest, Mr Jordon that the agreement is confined to referring matters to the Commission as being the only appropriate industrial authority.

PN26

MR JORDON: No, I don't.

PN27

THE SENIOR DEPUTY PRESIDENT: How is the industrial authority to be ascertained in the event of a disagreement?

PN28

MR JORDON: Simply by either of the parties making the application.

PN29

THE SENIOR DEPUTY PRESIDENT: To an industrial authority.

PN30

MR JORDON: In normal circumstances this Commission would be in the CFMEUs view the appropriate industrial authority to resolve normal industrial disputes in the workplace. It would be the intention of the CFMEU if an application was made that it be made to this authority. In final regards to the agreement I refer to the work model at appendix two where in the introduction it states:

PN31

The parties acknowledge that staff employees of the company do not perform ...(reads)... under the work model.

PN32

Your Honour, that is a clear unambiguous provision of the agreement and it is an intentional statement of the parties to avoid any future misunderstanding or dispute in that area. In finishing may I say that this is the parties fourth agreement, this agreement like others before it has been developed by the parties by way of a long and well established working relationship. Parties entrust each other to deliver their commitments and to maintain credibility in the true spirit and intent as the agreement was negotiated.

PN33

The agreement creates a positive atmosphere and is a comprehensive package to deliver what's required to develop a successful integrated Bayswater and Mount Arthur North Operation. The CFMEU negotiating group are all represented here today, their involvement and effort in the development of the agreement is worthy of mention. I thank them for their valued assistance and I'm privileged to have been associated with such a group. I'd also wish to acknowledge the involvement of the other union representatives on the negotiated group.

PN34

Finally, it is with respect that I acknowledge the senior management group who are also represented here today. Their co-operation, understanding and effort in negotiating the agreement was appreciated. I commend the agreement and respectfully seek the Commission to certify the Bayswater/Mount Arthur North Enterprise Flexibility Agreement 2001 effective as of today. May it please the Commission.

PN35

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Jordon. Mr Morrison?

PN36

MR MORRISON: Yes, your Honour. The AMWU request that the Commission approve this agreement and similar to the application by the CFMEU the union also submits that the agreement complies with the Commission's requirements and therefore we request approval of the certification of the agreement, thank you.

PN37

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Morrison. Ms Collins?

PN38

MS COLLINS: We too support the application, your Honour, and seeks its certification.

PN39

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Do you want to say anything else, Mr Billing?

PN40

MR BILLING: No, your Honour.

PN41

THE SENIOR DEPUTY PRESIDENT: I've read the statutory declarations filed in support of the application for certification, there are four in number, one from the employer and one from each of the employees. I've also read the Bayswater/Mount Arthur North Enterprise Flexibility Agreement 2001. I'm satisfied having read those documents, and having heard the advocates before me today, that the requirements of the Act are satisfied and I'm prepared to certify the agreement operative from today's date.

PN42

Particularly, I'm satisfied that the agreement passes the no disadvantage test that it was made in accordance with division 3, part VIB of the Act, that the explanation of its terms was appropriate but it includes procedures for preventing and settling disputes between the employer and the employees whose employment will be subject to it and that it specifies three years from the date of certification as the nominal expiry date and that is not more than three years after the date on which the agreement will come into operation which is today's date.

PN43

I'm also satisfied that there are no reasons set out in section 170LU of the Act as to why I should refuse to certify the agreement. It is an agreement between the employer and the three unions made in further settlement of the industrial dispute identifying matter C No 22841 of 1995. Accordingly the agreement will be certified to operate in accordance with its terms from the first pay period on or after today and that it will remain in operation for a period of three years. The appropriate documentation will be prepared shortly and issued. Thank you for your attendance.

ADJOURNED INDEFINITELY [4.17pm]