C2001/5643, Transcript of Proceedings [2001] AIRCTrans 3318 (30 November 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C2001/5643

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

and

BULGA COAL MANAGEMENT PTY LIMITED

Notification pursuant to Section 99 of the Act
of a dispute re entitlements to rostered days
off falling on public holidays for roster workers

SYDNEY

2.21 PM, THURSDAY, 15 NOVEMBER 2001

PN1

THE SENIOR DEPUTY PRESIDENT: I will take appearances please.

PN2

MR K. ENDACOTT: If the court pleases, your Honour, I appear for the Construction, Forestry, Mining and Energy Union, Mining and Energy Division. With me at the bar table and immediately to my right is MR LLOYD HILL who is the Vice President of the mine site CFMEU lodge. Further to Mr Hill's right is MR STEPHEN O'NEILL who is the lodge Secretary and in the back, in the gallery present are two other lodge representatives.

PN3

MR J. WHALE: May it please the Commission, I appear for Bulga Coal Management Pty Limited. I have with me MR L. RICHARDSON, Operations Manager, MR M. CARRUCAN, Mining Manager and MR A. EGAN, Maintenance Manager.

PN4

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Endacott?

PN5

MR ENDACOTT: Your Honour, this matter concerns a dispute as set out in the notification to the Commission. Before I explain to this Commission the detail of the dispute I was going to take your Honour through the relevant sections of the agreements and awards that cover the employees to identify those terms that are applicable. The terms and conditions of employees are covered by two documents, one being the Bulga Surface Operations Enterprise Agreement 2001 and the second document being the document that that certified agreement is read in conjunction with which is the Coal Mining Industry (Production and Engineering) Consolidated Award. If your Honour does not have a copy of the agreement - - -

PN6

THE SENIOR DEPUTY PRESIDENT: I have a copy of the agreement but I don't seem to have a copy of the award.

PN7

MR ENDACOTT: I have a copy of the award, I might hand that up as well. I will take you to the agreement first. That document is a published version we circulate to members. With respect to the agreement I would originally like to draw your attention generally to the fact that it is a division 3 certified agreement and that it is a registered certified agreement before this Commission and it is presently a current certified agreement. But with respect to the terms I would initially like to draw your attention to clause 4, Definitions and 4.1.8 which is a definition for the award. That clause in essence defines the industry award as the award.

PN8

If we now move on to clause 5, the Incidence and Application of the award, 5.3. It says:

PN9

The intention of this agreement is to establish and define those terms and conditions ...(reads)... the agreement shall apply.

PN10

Which is a pretty standard clause. The reason why I specifically identify that is because the award terms are relevant to this issue.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes, I assumed that might be your submission.

PN12

MR ENDACOTT: If we move on to clause 9, Rate of Pay. 9.1 basically indicates that it is an annualised salary arrangement in place and you could read 9.1 for yourself, your Honour, but the table below sets out the payments for the different rosters. You may note that next to the listed rosters - and if I take the first one, for example, Monday to Friday, eight hour day shift, it has two asterisks. If you go further down the table on my version at the bottom it says - it has a key to what those two asterisks mean - - -

PN13

THE SENIOR DEPUTY PRESIDENT: "Rosters which do not roster work on public holidays"?

PN14

MR ENDACOTT: Yes. And you will see that a lot of the awards have the two asterisks with them and a lot of the rosters do but some do not and certainly the ones that have the two asterisks, in essence what happens is you work your roster and then when a public holiday falls due you don't need to attend on a public holiday because that's not taken into account in the annualised salary, only for those that have the two asterisks. I would like to draw your attention now to clause 12, the Overtime clause and that clause basically says if you do overtime on a public holiday you are paid at triple time. So in essence if you are called in to work on a public holiday and you work the roster that had two asterisks you would be paid overtime for that.

PN15

Now if I can move on to clause 14, it says Saturday, Sunday and Holiday Work and it basically makes a similar statement:

PN16

All Saturday, Sunday and Holiday penalties for full-time employees are accounted for in the annualised salary.

PN17

The last clause I would like to take you to is clause 27 of the agreement which is Public Holidays. Basically that just specifies the Public Holidays that apply.

PN18

I would like to take you to the award because the certified agreement does not specify how you are to be rostered when a public holiday - how your rostered days off or non-working days are to apply when a public holiday falls due, we submit that is set out in the award and I wish to draw your Honour's attention to initially of the award clause 5.3.4 which is a definition and it says:

PN19

Non-working day means any day on which an employee by virtue of the employee's roster is never rostered to attend for rostered hours of work.

PN20

Also I'd like to draw your attention to the next page, 5.3.5 which is rostered day off. It says:

PN21

A rostered day off means any day on which an employee by virtue of the employee's roster is not rostered to attend for rostered hours of work and does not include non-working days.

PN22

The reason why I have taken you to those two definitions is the next clause I refer to you which refers to both of those definitions, refers to both those terms, and I would like to draw your attention to clause 24.6.8 which is on page 37 of the award I've tendered. This is actually where the dispute arises. It says:

PN23

Rostered days off not to fall on a recognised public holiday for Monday to Friday employees.

PN24

Then A:

PN25

which is subject to 26.8(b): where an employee's roster does not include work on a holiday the rostered day off is not to fall on a holiday.

PN26

You will recall from the wages clause it clearly spells out that there is no work on a holiday, the two asterisks I've referred to specifically make reference to that. I think it is clause 9 - - -

PN27

THE SENIOR DEPUTY PRESIDENT: Yes, they are rosters which don't roster work on public holidays.

PN28

MR ENDACOTT: Yes, and we would say by the operation of 24.6.8 an RDO, a rostered day off, not to fall on a recognised public holiday for Monday to Friday employees and then it goes on at A:

PN29

subject to 26.6.8(b): Where an employee's roster does not include work on a holiday - - -

PN30

which this would be the case for the ones with two asterisks:

PN31

the RDO - - -

PN32

which is the rostered day off:

PN33

is not to fall on a holiday.

PN34

Certainly where the dispute has arisen is that the company is rostering RDOs to fall on a holiday. This clause was subject to an application made by BHP to vary the award, a variation that was declined by Commissioner Bacon and there is a decision about how this clause specifically intends to operate and I would wish to tender that decision and take your Honour to the explanation that was relied on by this Commission not to grant variation.

PN35

THE SENIOR DEPUTY PRESIDENT: The application was to vary clause 24.6.8 was it?

PN36

MR ENDACOTT: Well, the application was in fact to vary the agreement to include a definition of Monday to Friday employees and in considering that variation declining it the Commissioner detailed how that clause was meant to operate and certainly I was wishing to draw your attention to those observations of Commissioner Bacon. I'll only take you to selected aspects of the decision, your Honour, but first of all is on page 2, the heading The Controversy. It says:

PN37

BHP at Bulga Colliery has two rosters of employees which are as follows.

PN38

They're set out:

PN39

Roster 1; 9 hours working Monday, Tuesday, Wednesday, Thursday and no work on Friday, Saturday, Sunday.

PN40

Roster 2 provides:

PN41

No work on Monday, 9 hour shifts on Tuesday, Wednesday, Thursday, Friday and no work on Saturday and Sunday.

PN42

There is a difference between the roster in place, more than a slight difference, at Bulga but I understand the rest of the decision you need to know the rosters he's talking about. If you'd now move on page 4 it says The Award and the Commissioner observes this; he says at paragraph 8:

PN43

The award provides directly or indirectly for three categories of days for employees. These are days on which the employee ...(reads)... non-working days.

PN44

THE SENIOR DEPUTY PRESIDENT: Is that the same at Bulga?

PN45

MR ENDACOTT: Yes, there are rostered days off.

PN46

THE SENIOR DEPUTY PRESIDENT: As well as non-working days?

PN47

MR ENDACOTT: That's correct, yes. It says at paragraph 9:

PN48

Rostered days off and non-working days are defined in the award based definitions are -

PN49

And I've taken your Honour to both those definitions. It says:

PN50

It is clear from the foregoing that a rostered day off cannot fall on a non-working day, that is ...(reads)... cannot be both.

PN51

Commissioner Wilks concluded that the Friday in roster 1 was a rostered day off and that the employees were Monday to Friday employees. These two factors then enliven subclause 24.6.8 of the award which is repeated in the foregoing extract of the Commission's recommendation. Paragraph 11:

PN52

The term Monday to Friday employee is not defined in the award ...(reads)... statutory public holiday.

PN53

Then it goes on:

PN54

Is Friday in roster 1 a rostered day off?

PN55

It says:

PN56

Any day of the week in which an employee is never rostered to work is a non-working day ...(reads)... rostered day off.

PN57

It goes on:

PN58

Commissioner Wilks' conclusion that the Friday in roster 1 is a rostered day off is one which I must specifically disagree with ...(reads)... Monday to Friday inclusive.

PN59

Commissioner Wilks had made a recommendation. He's just setting out there he didn't agree with it. I'll just go on to the heading that says Monday to Friday Workers; it says:

PN60

There is little doubt that the employees are Monday to Friday workers ...(reads)... clauses of the award.

PN61

On the next page the Commissioner goes into whether or not the award should be varied but I only wish to draw your Honour's attention to paragraph 22 because that's the relevant part we would submit:

PN62

Further, if the variation was granted it would remove from employees an award provision specifically intended to apply to them ...(reads)... hours per week.

PN63

The Commissioner gives an example of an employee working a two week roster; Monday, Tuesday, Wednesday, Thursday in the first week, Monday, Tuesday, Wednesday in the second week and then after giving that roster example he says the following at paragraph 23:

PN64

For the reasons already discussed Friday and Saturday and Sunday in the roster would be non-working days ...(reads)... intention of the award.

PN65

So basically he said a non-working day is a day of the week, any day by virtue of the roster, you can never be required to work and the case he gave Friday, Saturday and Sunday the employees were never required to work, they were non-working days and the clause didn't apply but if you had a roster, and he gives this clearly, where you would work every second Thursday then that wouldn't be a non-working day, it would be a rostered day off and if a public holiday fell on that day the clause 24.6.8 would apply and if I draw your Honour's attention back to clause 24.6.8 which is on page 3 of the decision or in the award, whichever your Honour wishes to consult, it says:

PN66

Rostered days off not to fall on a recognised public holiday for Monday to Friday employees.

PN67

So it actually means they've got to change their rostered day off to be another day.

PN68

THE SENIOR DEPUTY PRESIDENT: Is that a heading in 24.6.8?

PN69

MR ENDACOTT: No, it's not.

PN70

THE SENIOR DEPUTY PRESIDENT: It's phrased more as a heading, it's not a proper sentence grammatically. If it was a prohibition it would say, right, RDOs are not fall, must not fall, or something like that.

PN71

MR ENDACOTT: Well, RDOs not to fall on recognised public holidays. In any event we submit Commissioner Bacon made it quite clear of how that would apply in his decision which means it wouldn't fall on that day. Your Honour, I will tender a copy of one of the rosters and certainly this is one worked by a number of employees and relevant to these proceedings.

PN72

THE SENIOR DEPUTY PRESIDENT: I will make the five day roster as exhibit CFMEU1.

EXHIBIT #CFMEU1 FIVE DAY ROSTER

PN73

MR ENDACOTT: I take you again to clause 9, rates of pay of the certified agreement. I am informed that this is the roster for employees working the Monday to Friday, 12 hour, 20 minutes rotating shifts.

PN74

THE SENIOR DEPUTY PRESIDENT: Say that again?

PN75

MR ENDACOTT: The Monday to Friday, 12 hour, 20 minute rotating and it is the third last roster.

PN76

THE SENIOR DEPUTY PRESIDENT: Where do you want me to look?

PN77

MR ENDACOTT: It is clause 9, rates of pay and it is third from the bottom. You will see that next to that is the two asterisks which are identified as rosters which do not roster work on a public holiday. Now, if I take you to that roster, your Honour, this sets out the roster for the three separate shifts between 11 June, 2001 all the way up to 23 June 2002 and if I can show you the roster. We start off with 11 June, 2001 and that is a Monday and it says, "Crew 1 will work day shift".

PN78

THE SENIOR DEPUTY PRESIDENT: Which one am I looking at?

PN79

MR ENDACOTT: It is CFMEU1 and it is the very top corner. You will see it says, Monday and then if you move across to the fifth box to the right, it says, 11 June, 2001. Well, that means on 11 June, 2001, shift 1 - crew 1, I'll use. Crew 1 will work day shift that day. On the next day, crew 1 will work day shift. For example, crew 2 on the Monday will be on a rostered day off - on the Tuesday will be on a rostered day off. Crew 3 will be on night shift and that is how you work out where you will be working each day.

PN80

THE SENIOR DEPUTY PRESIDENT: So the RDOs are the blanks all the way down that page?

PN81

MR ENDACOTT: Yes, they are. Except the blanks that are in the coloured, they are non-working days. This is a company document - - -

PN82

THE SENIOR DEPUTY PRESIDENT: Because it is a five day roster?

PN83

MR ENDACOTT: Yes. The Saturday and Sunday are days you can never be required to work. Now, if you go down the roster, your Honour, you will see that you actually - say, you take the crew 1 as you move through sequentially, you do four shifts and this is Monday to Friday. You do three shifts in the next week and you do three shift again and you will see that during that roster cycle that is repeated continually, you work on every day of the week. You work Monday, Tuesday, Thursday, Friday in the first week.

PN84

THE SENIOR DEPUTY PRESIDENT: Yes, I follow it.

PN85

MR ENDACOTT: And so you have an RDO. Now, what we say, the award says quite clearly and this is exactly consistent with the findings of Commissioner Bacon when he considers the award interpretation is that, say we take New Year's Day which is definitely going to be a public holiday which is 1 January, 2002.

PN86

THE SENIOR DEPUTY PRESIDENT: Yes, that is a Tuesday.

PN87

MR ENDACOTT: Yes.

PN88

THE SENIOR DEPUTY PRESIDENT: And crew 3 is rostered off on that day?

PN89

MR ENDACOTT: Yes. I actually go to 1 October, your Honour, it is probably a better example. That is the next public holiday that just passed, your Honour.

PN90

THE SENIOR DEPUTY PRESIDENT: What was on 1 October?

PN91

MR ENDACOTT: A public holiday.

PN92

THE SENIOR DEPUTY PRESIDENT: What was it?

PN93

MR WHALE: Labour Day.

PN94

THE SENIOR DEPUTY PRESIDENT: In New South Wales?

PN95

MR ENDACOTT: Yes. So, 1 October and if you could find that one, your Honour.

PN96

THE SENIOR DEPUTY PRESIDENT: Yes. Crew 1 was rostered off on that day, is that right?

PN97

MR ENDACOTT: Crew 1 was rostered on.

PN98

THE SENIOR DEPUTY PRESIDENT: Rostered off.

PN99

MR ENDACOTT: I apologise. Now, the thing is, even though Crew 2 and 3 were rostered to work, by virtue of the double asterisk, they are not required to attend. That is back to clause 9 because next to them they have a roster and they have the double asterisks which says, rosters which do not roster work on a public holiday.

PN100

THE SENIOR DEPUTY PRESIDENT: But why isn't this a roster that has rostered work on a public holiday?

PN101

MR ENDACOTT: When they have developed it, they have just rotated it around but everyone understands that you are not required to attend to work that day because the certified agreement says that you are not required to attend.

PN102

THE SENIOR DEPUTY PRESIDENT: So, does the mine not operate on that day?

PN103

MR ENDACOTT: It does but with people working other rosters.

PN104

THE SENIOR DEPUTY PRESIDENT: Not with the five day roster people?

PN105

MR ENDACOTT: That is correct, your Honour. You have a situation in which, even though you have a situation for 1 October, that Crew 2 doesn't show up and Crew 3 doesn't show up and that's not disputed but Crew 1 is on a rostered day off and what the award specifically says, is the rostered day off can't fall - a public holiday can't fall on a rostered day off and that is as Commissioner Bacon says in his decision. Now, the employees and this dispute has been going on for quite a while, says in fact, giving that to me as a rostered day off is in fact, a breach of the award and in fact, I should have in that week - - -

PN106

THE SENIOR DEPUTY PRESIDENT: Another rostered day off, is that the way you put it?

PN107

MR ENDACOTT: Yes.

PN108

THE SENIOR DEPUTY PRESIDENT: That is a public holiday, so it is not a RDO?

PN109

MR ENDACOTT: Yes.

PN110

THE SENIOR DEPUTY PRESIDENT: To put it in simplistic terms which you have already learnt, I like to do, it boils down to you saying, does it, that if there is a public holiday, that can't be rostered as an RDO, it has got to be rostered as a holiday?

PN111

MR ENDACOTT: Yes, that is correct.

PN112

THE SENIOR DEPUTY PRESIDENT: And you get another day as an RDO?

PN113

MR ENDACOTT: That is correct, that is exactly it. I know that I've given detailed explanations because we're going through so many different documents.

PN114

THE SENIOR DEPUTY PRESIDENT: It is complicated but that is where we've come to, is it?

PN115

MR ENDACOTT: Yes. And that is the crux of the dispute.

PN116

THE SENIOR DEPUTY PRESIDENT: Can you just bear with me for a moment while I just make a note of that?

PN117

MR ENDACOTT: Yes. The dispute before you today, we seek your assistance in conciliation in an attempt to resolve the matter, your Honour. There is only one other point I would like to raise - - -

PN118

THE SENIOR DEPUTY PRESIDENT: Just to follow through with that. You say for Crew 1 is a public holiday and I take the company is not prepared to roster another day off or provide another RDO for those people?

PN119

MR ENDACOTT: That is correct.

PN120

THE SENIOR DEPUTY PRESIDENT: The company says, no, that is an RDO and it just happens to fall on a public holiday and you don't get another RDO?

PN121

MR ENDACOTT: That is correct, your Honour.

PN122

THE SENIOR DEPUTY PRESIDENT: You get paid for that day at the same rate regardless?

PN123

MR ENDACOTT: There is no issue about the payment, you are on the annualised salary.

PN124

THE SENIOR DEPUTY PRESIDENT: It is a question of whether you get another day off or not?

PN125

MR ENDACOTT: Yes.

PN126

THE SENIOR DEPUTY PRESIDENT: I understand.

PN127

MR ENDACOTT: There is one further issue, your Honour and certainly important in being able to resolve this matter by conciliation is that the employees raised this some time ago with the company and has a number of meetings over it and the company's general response I'm instructed, is if you take us on this issue and you win, we are going to change your roster. The exact implication is to a 5-day rotating roster which is certainly unfavourable to the employees and certainly in taking this matter to the Commission now, of prime consideration is that there is a concern by the employees and this has been made many a time, the company will punish us if we win. We say that was an unlawful threat.

PN128

THE SENIOR DEPUTY PRESIDENT: Isn't another way of putting it, that the company is saying, well, we'll do what the award requires and we won't arrange our rosters so that RDOs fall on public holidays because the award says we can't.

PN129

MR ENDACOTT: No, what they are saying is, we will change the entire roster that you work so that you will work a 5-day, 8-hour roster.

PN130

THE SENIOR DEPUTY PRESIDENT: On every day of the 5-day week,

PN131

MR ENDACOTT: Yes, of 8 hours instead mow the 12-hour roster.

PN132

THE SENIOR DEPUTY PRESIDENT: So, you won't have RDOs at all.

PN133

MR ENDACOTT: That's right, you won't have any RDOs and you will get paid less. We say that certainly we are not prepared to be intimidated by those sort of comments but certainly, we seek to resolve the matter by conciliation but not if that's the sort of position the company is going to adopt in trying to buoy their position in the negotiations. If your Honour pleases.

PN134

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN135

Mr Whale, i will get you to put the company's position on the record, if that suits you and then we'll adjourn into conference.

PN136

MR WHALE: Your Honour, of course, the people who negotiated this certified agreement are very experienced people in negotiating certified agreements. This is not the first certified agreement for the Bulga surface operations, if my memory serves me correctly, I think this would be about the fourth agreement that has been reached at that particular site.

PN137

The agreement immediately prior to this one, indeed, contained the annualised salary concepts and in fact, clause 9.1 of the agreement which Mr Endacott has referred you to, is in the same terms in the 1999 agreement as it is in the current agreement. There is nothing new about any of the construction of the salary system or indeed, the say in which it has been applied from one agreement to the next.

PN138

The reason I say that, your Honour, is that when the company was negotiating this agreement, it put forward a number of options with respect to roster systems, specifically the employees were given the choice either to work the 12-hour, 20-minute roster which Mr Endacott has kindly tabled in these proceedings, exhibit CFMEU1 which is indeed a company document and the employees were given the option to work that roster or to work a Monday to Friday 8-hour rotating shift roster where employees would work every day of the week.

PN139

THE SENIOR DEPUTY PRESIDENT: That's the top one, is it, the Monday to Friday 8-hour day shift?

PN140

MR WHALE: No, it's not, it's a variation, it is a 3-panel rotating shift roster, it's not actually contained there.

PN141

THE SENIOR DEPUTY PRESIDENT: I see, it's the Monday to Friday 8-hour, 20-minute.

PN142

MR WHALE: Yes, 8-hour, 20-minutes in that case. So, the employees - - -

PN143

THE SENIOR DEPUTY PRESIDENT: Just stopping you there for a moment, on that roster, are people rostered on every Monday to through to Friday, are they?

PN144

MR WHALE: Yes.

PN145

THE SENIOR DEPUTY PRESIDENT: There are no RDOs?

PN146

MR WHALE: There are not rostered days off falling Monday to Friday. The employees, your Honour, chose to work the 12-hour, 20-minute roster which means that they work on average 3_ days per week over the 3-week cycle and as you can see in the roster, they work in one week 4 days, in another 3 days and another 3 days. They chose that, I have to say, they voted to accept that roster.

PN147

THE SENIOR DEPUTY PRESIDENT: That's the only roster that works for the surface operations, is it? That is the surface operations roster or are there others?

PN148

MR WHALE: No, the company works quite a number of rosters but this indeed, is the only one that we understand the union contest falls foul with clause 24.6.8.

PN149

THE SENIOR DEPUTY PRESIDENT: How many people work this roster, Mr Whale?

PN150

MR WHALE: I think it's about 70 - 42 of about 270 employees. Were we are getting to with this is that the employees chose to work the roster and the company clearly defined that they would not be required to work on public holidays which is the two asterisks that Mr Endacott has pointed you to. Indeed, your Honour, the company's position in those negotiations, as it is now, is that the annualised salaries compensate employees for all payments that would otherwise apply.

PN151

Really, what is before you is an interpretation of clause 9.1, 9.1 says in the second sentence:

PN152

The annualised salary includes compensation for all types of payments and/or disability allowances however expressed ...(reads)... working staggered flexible cribs.

PN153

The point we dwell on is that it includes compensation for all types of payments and disability allowances however expressed. Certainly the company did not factor into this roster that if it were accepted by the employees that some nine months into the certified agreement, the employees would then claim that indeed, clause 24.68 of the award applies to them and that the employees should now be given an additional rostered day off.

PN154

THE SENIOR DEPUTY PRESIDENT: Do you say that clause 9.1 is inconsistent with 24.6.8 and therefore prevails?

PN155

MR WHALE: That is our view and indeed, the only payments the company makes in additional to the annualised salary is for non-rostered overtime that is worked, public holidays that are worked where they are not scheduled to be worked and indeed, call-outs. They are the only three types of payment that the company makes in addition to the annualised salary.

PN156

All other roster systems, if they require no work on public holidays, there are no adjustments made, for employees who work public holidays, who regularly work are rostered to work public holidays, there is no adjustment to the salary in relation. As Mr Endacott has taken you to, your Honour, clause 14 of the certified agreement which the heading is Saturday, Sunday and Holiday Work says:

PN157

All Saturday, Sunday and holiday penalties for full-time employees are accounted for in the annualised salary.

PN158

Supporting what I've said, your Honour, that indeed, there are no adjustments to salaries to reflect he working or non-working of public holidays and certainly, there has been no substitution of public holidays where there's been a coincidence of a rostered day off falling upon that public holiday.

PN159

THE SENIOR DEPUTY PRESIDENT: What is the estimated annual cost of the union's claim?

PN160

MR WHALE: I can't give you an answer to that, it comes down to loss of production. What we are talking about is 5 days additional lost production for those employees who are captured by their rostered day off falling on a public holiday. Could I respond to Mr Endacott's inflammatory words regarding threats by the company, the company has made it quite clear that it has rights to implement roster systems in accordance with the certified agreement and it will exercise those rights, based on the needs of the operation and indeed, cost is a significant issue.

PN161

Rather than a threat in relation to what may occur in these proceedings, the company has made it quite clear that cost is an important issue for the company and if indeed, it needs to change roster systems based on a view about additional costs being incurred by the company, then the company has the ability to utilise or to access its rights. That is not a threat, that is quite simply dealing with the practical situation that confronts it.

PN162

What Mr Endacott didn't say is that in relation to costs the company has, as of Monday this week, notified all employees that the operations will be totally shut down for a period of two weeks from 22 December because the company does not have markets for its coal. So for the company - - -

PN163

THE SENIOR DEPUTY PRESIDENT: That will at least fix up Christmas Day, Boxing Day and New Years Day, won't it?

PN164

MR WHALE: Yes, I suppose it is a solution to those problems, but one can't divorce oneself from the economics of the operation. Or indeed, in our view, come back at a later stage after the agreement has been certified and say well, we actually now think that we can tweak a bit more of time out of the company.

PN165

THE SENIOR DEPUTY PRESIDENT: Mr Whale, I think I understand the way in which each site puts it case. Is there anything more you want to say before we adjourn into conference?

PN166

MR WHALE: I don't plan to go into the way in which the salaries have been structured, but the salaries contain substantial over-award payments, penalties for shift work, etcetera, etcetera. These things all go into and are all part of the fabric of negotiation, as is, we say, this issue of whether there are substitute days or not.

PN167

THE SENIOR DEPUTY PRESIDENT: Mr Endacott, do you want to say something?

PN168

MR ENDACOTT: Yes, I would like to make a very brief comment, your Honour. The entitlement to a day off isn't a payment. It is an entitlement to a day off. This issue was raised with the company, on my instruction, on the first occasion on 13 June this year which was some week after the agreement was certified and they became aware that there was a different understanding of it. Nine months wasn't waited, and even though the issue arose on 13 June, when a public holiday is coming around and people have been rostered to work, where it has been people's rostered day off, and where it has been their interpretation they should another day off, they have still complied with what the company said, in the purpose well, you know, it still hasn't been sorted out as yet.

PN169

They could have said our lawful entitlement is to have an RDO and another day not turned up. It wasn't that. They continued to work while this discussion was ongoing in an attempt to resolve the matter. We say the payment clearly is saying well, it compensated for a payment. It is a day off, it is not a payment. As I said, it is not an issue of money, we just say we are entitled to a day off.

PN170

THE SENIOR DEPUTY PRESIDENT: Yes, well, that is an issue of money for the company, of course.

PN171

MR WHALE: Precisely, it is an issue of money.

PN172

THE SENIOR DEPUTY PRESIDENT: I understand. I will adjourn us into conference now. We will see if we can get somewhere in conference. We may need to break off and then resume after the 3.15 matter that I have. We will go off the record.

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CFMEU1 FIVE DAY ROSTER PN73