C2002/1355, Transcript of Proceedings [2002] AIRCTrans 1153 (8 April 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER ROBERTS

C2002/1355

CONSTRUCTION, FORESTRY, MINING AND ENERGY
UNION-MINING AND ENERGY DIVISION NORTHERN
DISTRICT BRANCH

and

RAVENSWORTH EAST OPEN CUT COAL MINE

Notification pursuant to section 99 of the
Act of a dispute re failure of the company
to meet with an employee and union to discuss
industrial matters etcetera

SYDNEY

10.05 AM, THURSDAY, 21 MARCH 2002

Adjourned sine die

PN1

THE COMMISSIONER: I will take appearances.

PN2

MR K. ENDACOTT: If it pleases the Commission, I am appearing for the Construction, Forestry, Mining and Energy Union, Mining and Energy Division and I have with me at the bar table MR J. DAGG, who is an employee of the respondent and is related to the issues in dispute.

PN3

MR J. WHALE: May it please the Commission, I seek leave to appear in these proceedings for and on behalf Ravensworth East Coal Management Pty Limited, who is the employer at the Ravensworth East mine and is the successor of Ravensworth East Open Cut Coal Mine, which is listed as the respondent in these proceedings. That isn't the actual name of the company, the correct name of the company is Ravensworth East Coal Management Pty Limited.

PN4

THE COMMISSIONER: Thank you. Do you object to the appearance of Mr Whale, Mr Endacott?

PN5

MR ENDACOTT: No, I don't, Commissioner, I don't believe Mr Whale requires the leave of the Commission to appear. In any event, we don't object even if you did require leave.

PN6

THE COMMISSIONER: Well, just in case, leave is granted. So, it's your application, Mr Endacott?

PN7

MR ENDACOTT: Thank you, Commissioner. From the outset, I would just like to explain what we wish from the Commission. Certainly, we wish the Commission to assist the parties in conciliation to resolve the matter today, and that would be our primary focus. I would like to take the opportunity to put some information on transcript.

PN8

THE COMMISSIONER: Briefly, I think.

PN9

MR ENDACOTT: Yes. The only problem is that this matter has a bit of a long history, and I would like to just make the Commission aware that the steps Mr Dagg and the union have made to try and get these issues that have resulted in the conduct against Mr Dagg being resolved.

PN10

THE COMMISSIONER: My heart sinks when I hear the term "long history".

PN11

MR ENDACOTT: Well, my heart sinks in this case because it is an unusual history, we would certainly submit. Now, firstly, I would just like to provide to the Commission a few of Mr Dagg's contract of employment.

PN12

THE COMMISSIONER: Do you wish to tender it?

PN13

MR ENDACOTT: Yes, please, just marked for information or just tendered as an exhibit. I understand it's in the conciliation phase, Commissioner.

PN14

THE COMMISSIONER: I've been handed a contract of employment for Mr Dagg which will be marked MFI1.

MFI #1 CONTACT OF EMPLOYMENT OF MR DAGG

PN15

MR ENDACOTT: Certainly this dispute is about what the proper, correct and fair administration of the contract of employment. I would just like to quickly identify a couple of areas to you, and certainly these are areas that I believe the employer would also take you to, so I'll take you to the ones that we submit are relevant and also the ones that the employer will more likely submit are relevant. The second one is the second - on the first page, which it says implement a salary employment arrangement. This was part of the salary offer provided to Mr Dagg and it says, that's the second point:

PN16

Implement as one of the objectives of the agreement are implement a salary employment arranged based on the concept of a salary for the position which fully compensates you for the performance of your role.

PN17

If you go over to the second page it says Conditions of Employment at point 4. The fourth paragraph below that says:

PN18

This agreement and the attachment schedule satisfy the provision of an award or agreement that otherwise applies to your employment. You ...(reads)... to enforce such award agreement upon the company.

PN19

I make no reference to the second part of the paragraph, Commissioner, even though just generally we would submit that the second sentence in that:

PN20

In all likelihood would form an aspect of an unfair contract of employment.

PN21

I make no submission on that. Specifically in respect of the first point:

PN22

That this agreement and attached schedule satisfies the provisions of an award or agreement that would otherwise apply to employment.

PN23

Now, at all times, Mr Dagg, when he commenced employment and entered into the contract was informed that the provisions in this agreement are better to, superior to, in addition to the award, and certainly we think that's important for ultimately the interpretation of the contract of employment. And then if you move on it's got schedule one, which is a couple of pages past that that says salaried employment general conditions. And if you move on to page 12 of that document, clause 19, disputes procedure.

PN24

THE COMMISSIONER: Yes, I have it.

PN25

MR ENDACOTT: 19.3 says:

PN26

In relation to appropriate authorities, the attention of the parties to this agreement that the private arbitrator or the Australian Industrial Relations Commission will be used to conciliate a resolution to the grievance.

PN27

I only bring that to the attention of this Commission. And then if you move onto schedule 2, which is the next page, and they're numbered sequentially. If you go over to page 14 at 2.1.4, it says:

PN28

Your TEC using full compensation of your position including the duties, time and attendance necessary to perform your role -

PN29

THE COMMISSIONER: What's a TEC?

PN30

MR ENDACOTT: Total employment cost it refers to:

PN31

...where you believe that you are regularly working in excess of those requirements you consult your manager.

PN32

Then if you move on, and it's after page 16 of the document, it has an attachment, and the first attachment outlines the salary that would be afforded to Mr Dagg, and he is roster number one operations, four times 10.5 hours rostering Monday to Saturday. And if you turn over the next page it says Roster number one, operations. It says, 6 am to 4 pm, finish on equipment. This is the one that says indicative work patterns, and it ways finis on equipment, which is after the roster number one operations, finish on equipment, commonly referred to as hot seat changeover in the industry. And then it ways 7.30 pm to 6 am is the night shift, and then it talks about the roster pattern he works.

PN33

Now, in his application for employment and when he applied for employment, Mr Dagg was informed this would form his contract of employment. He was also informed that he should read this carefully, get an understanding of it, and was informed that he would be required to work the hours set out in the roster.

PN34

After Mr Dagg commenced employment, and not only for Mr Dagg, other employees, other members of the union, it became evident that the company had a different interpretation of the contract of employment, and that was that you should work at the drop of a hat, in excess of the roster, you can start before it, work after it, and there was no additional payment to be afforded. Also, that you would be required to work an additional weekend shift once a month without payment.

PN35

Certainly the members of the union raised this with the CFMEU and Mr Dagg, and we attempted to arrange a meeting with the company to discuss it, and this is where the history of the matter comes into account, and I would like to tender a number of documents which is basically correspondence between the parties about this.

PN36

THE COMMISSIONER: Do you wish to do this prior to conciliation?

PN37

MR ENDACOTT: I wish to put it on the record because in light of the attempts Mr Dagg has made to resolve this issue, the warning against Mr Dagg under the circumstances seems astounding in light of the fair administration of the employment relationship.

PN38

THE COMMISSIONER: You understand I know nothing about the warning.

PN39

MR ENDACOTT: I understand that. I will lead you sequentially through it. Normally I wouldn't necessarily adopt this approach except for the sheer volume of correspondence that has gone between the parties.

PN40

THE COMMISSIONER: Do you want these marked as MFIs or exhibits?

PN41

MR ENDACOTT: If we could just mark them as MFIs.

PN42

THE COMMISSIONER: Mr Endacott has just handed me several documents, being in sequence a letter from the United Mine Workers Federation of Australia to Ravensworth East Open Cut Coal Mine dated 13 August 2001; another letter dated 22 March 2001 addressed to Peabody Open Cut Mining Pty Limited; another letter dated 30 March 2001 to the same company; another letter dated 7 March 2001 to the same company; a further letter dated 28 February 2001 also to Peabody Open Cut Mining Pty Limited. Together these will become MFI 2.

MFI #2 LETTER FROM UNITED MINE WORKERS FEDERATION OF AUSTRALIA TO RAVENSWORTH EAST OPEN CUT COAL MINE DATED 13/08/2001, LETTERS ADDRESSED TO PEABODY OPEN CUT MINING PTY LIMITED DATED 22/03/2001, 30/03/2001, 07/03/2001 AND 28/02/2001

PN43

MR ENDACOTT: When the issue first arose, as is normally the practice with the union we make attempts to try and contact the company to address the issue and you will see if you go to the 28 February 2001 correspondence that we wrote to the company outlining the concerns of our members and specifically at the second paragraph it says:

PN44

I write for and behalf of a number of members employed by you ...(reads)... when you start and finish.

PN45

Then it goes on, it sets out the issue and then it says:

PN46

I therefore request you to desist from compelling employees...(reads)... for working that shift.

PN47

Then:

PN48

I require you in 48 hours in receipt of this letter to confirm to us in writing that you will be complying with our request.

PN49

I won't take you through the letters because I wish to get into conciliation as soon as possible, Commissioner, but what will be seen from all those letters that they are a repeated request to have a meeting to sort the matter out on behalf of the employees, repeated requests. Well, until Monday of this week the company had outrightly refused to discuss the matter with the union as representative of their employees. In fact, they ignored our letters in toto until 21 March, and this was after we had written three letters to the company, then this was the response:

PN50

I refer to your letters dated 28 February 2001, 7 March 2001 and 20 March 2001. Your letter ...(reads)... all of its legal obligations.

PN51

That was their response. Not only had I made requests, Mr Dagg had personally spoken to the company and asked for representation on the issue. The company either didn't get back to him or just said, no, we don't talk to the union.

PN52

THE COMMISSIONER: Are you going to show me this correspondence that you are quoting from?

PN53

MR ENDACOTT: I can provide that correspondence to the Commission. I believe there is one letter that I am unable to find, the company may have that letter, it was a refusal to meet with the union. Generally they just ignored the union's requests.

PN54

THE COMMISSIONER: I will mark the company's letter to the union dated 21 March 2001 as MFI3.

MFI #3 LETTER FROM THE COMPANY TO THE UNION DATED 21/03/2001

PN55

MR ENDACOTT: Commissioner, this may seem - well, we don't say it is unusual under the circumstances. The company was originally owned by Peabody and Peabody sold the operation to Coal and Allied. As of last Thursday it has been bought by the new operation, a new name, in fact it is now owned by a company called Enex. Enex is one of the largest producers of coal in the Hunter Valley and certainly is a company with respect to coal production that is equal to and might even be bigger than Coal and Allied in the Northern Districts, but I say that without knowing the exact details.

PN56

What is amazing is that after this year of writing to the company trying to get a meeting, the day after the company sells to a new employer we get a letter from the company saying they are prepared to meet us, this was last Friday, and Mr Farrar the general manager rings me up and says he is quite happy to meet with the union. Now, I don't know whether it has been an instruction to the management about the change of attitude because there's a new corporate owner.

PN57

THE COMMISSIONER: So this change of attitude or possible change of attitude or alleged attitude has occurred after you lodged the notification of dispute?

PN58

MR ENDACOTT: Yes.

PN59

THE COMMISSIONER: Well, given that, it really is important, isn't it, that we proceed to conciliation and try and bat this around and then go back onto the record, but you continue what you feel you must put to me.

PN60

MR ENDACOTT: I will wind up after outlining a specific point, and that is this. On 13 August 2001, which is the later document, MFI2, I wrote to the company, and it is communicated in the first paragraph:

PN61

I write further to our correspondence of 28 February, 7 March and 22 March ...(reads)... to have a meeting to discuss the matter -

PN62

and I think that refers to the letter I can't find from the company, I believe there was one additional letter.

PN63

THE COMMISSIONER: That's 13 August 2001. You now have a letter from the company of, what, 15 March 2002, my guess about the date of last Friday is correct.

PN64

MR ENDACOTT: That's right.

PN65

THE COMMISSIONER: Perhaps Mr Whale is going to hand that letter up, I don't know, I would like to have this correspondence in some form of sequence so that I have got the company's correspondence as well as the union's to have a look at.

PN66

MR ENDACOTT: Yes, shortly I will provide the last one I've got, which is the one of last Friday saying that they are prepared to meet with us, but I just wanted to take the Commission's attention to this part, the fourth paragraph:

PN67

Further, you have informed the employees ...(reads)... overtime performed.

PN68

So they have been in the background doing things even though they would not meet with us:

PN69

You are not prepared to ...(reads)... union representation.

PN70

The company ignored it, approached them individually or in groups in a presentation of what they believed the issue was, never even mentioned that the union had been trying to have a meeting or there was a dispute about contracts of employment and then said at the end of them, well, we'll pay you if you work a full shift and certainly that covered the full shift issue and we say that was an acknowledgment of our argument being right but if you don't do other work we will start to breach a contract of employment and we have got this assessment process that will assess you on the basis of whether you do the additional hours.

PN71

THE COMMISSIONER: But is that complaint now partly satisfied by the company's correspondence of 15 March 2002.

PN72

MR ENDACOTT: Well, the complaint that they won't talk to us about Mr Dagg is partially satisfied because faced with having to turn up to this Commission today after a year of refusing to meet with the union, refusing blatantly to Mr Dagg to say, well, we'll talk to you but you aren't going to have anyone represent you.

PN73

THE COMMISSIONER: It is probably not productive to go through the motive.

PN74

MR ENDACOTT: But as a result Mr Dagg was assessed down in his performance, he was assessed as unsatisfactory because he left work on one occasion at 4.35 to a toolbox meeting when his roster clearly indicates he only works to, sorry, 4.35, when his roster indicates that he only works to 4.30. Mr Dagg was very concerned for a number of reasons as he stayed extra and he was assessed as not wanting to do the additional time.

PN75

THE COMMISSIONER: Is there a written warning give to Mr Dagg?

PN76

MR ENDACOTT: There was an unsatisfactory remark on his performance appraisal and I'll present the Commission with a copy - - -

PN77

THE COMMISSIONER: You might present me with a copy of this letter of 15 March 2002 as well.

PN78

MR ENDACOTT: Yes, I'll present that as well.

PN79

THE COMMISSIONER: I take it that the company has got all these documents which are floating around, Mr Whale?

PN80

MR WHALE: Yes, Commissioner. In fact we thank Mr Endacott for providing copies of the correspondence which shows that the company that has taken over the business some of that correspondence was not available to us.

PN81

THE COMMISSIONER: But if you feel disadvantaged any time let me know.

PN82

MR WHALE: I'll certainly do that.

PN83

MR ENDACOTT: I'll tender three documents to say which is a record of verbal warning, the correspondence dated 12 March saying that there will be a meeting and wasn't received at our office until 15 March 2002, and a copy of a warning and that should hopefully, I won't need to present any further - - -

PN84

THE COMMISSIONER: Well, we can have any documents copied that you need copied.

PN85

MR ENDACOTT: I have arranged copies of all the documents that I intended to provide. I generally try to have copies of all of the documents and the only time I am caught short is when the member turns up in the morning and gives me one.

PN86

THE COMMISSIONER: You have presented me with a bundle of documents and on the top is a document headed, assessment, under that is a copy of a letter from the operations manager of Ravensworth operations, dated 12 March 2002, addressed to yourself. The next document is a letter dated 26 February 2002 from Coal and Allied to Mr Dagg. Then there is a document headed Ravensworth East offer of salaried employment explanatory notes which together I'll mark as MFI4.

EXHIBIT #MFI 4 BUNDLE OF DOCUMENTS

PN87

MR ENDACOTT: Now, in Mr Dagg's case he was assessed, he was subject to a performance assessment of the operation and generally I would say it was a very good assessment but he was concerned about the area I provided which is attendance criteria and he was specifically concerned to willingness to work additional time, and it says, (1) unsatisfactory. This is the very last one, it says:

PN88

When asked John is unavailable to stay back after completing his normal shift.

PN89

Then it refers to, for example, 15 June 2001 left TBT at 4.35, whilst TBT was still being presented. And I presume TBT stands for toolbox talk. Now, certainly Mr Dagg indicated that he thought he should have been assessed as met expectations. He was also concerned that he was given such an unsatisfactory assessment for two reasons, one is that he stayed at the end of his shift until five minutes after it concluded and he was also concerned that, as I'm informed, that he had certainly with other employees been attempting to discuss this issue about his contract of employment with the company over 12 months and they just refused to meet.

PN90

What he said to the company, they said they were refusing to, he spoke to I believe his supervising manager who indicated they are refusing to - said that that was the appropriate assessment based on his conduct. Mr Dagg said, look, I was told when I started and I've been trying to talk to you about it that I was never required to work in excess of my hours without payment and I've been trying to sit down and sort it out and you have been ignoring me and even though that without prejudice I've done the work you have instructed, even though you've refused to talk to me about it and one of the letters indicated that the employers were doing it under protest.

PN91

He says, I come up to work 15 minutes early every morning for my shift because you tell me to even though it is quite clear that I don't have to and you're refusing to talk to me about it. He said, how can I be assessed willingness to work additional time when I start 15 minutes before the beginning of my shift every morning without payment.

PN92

THE COMMISSIONER: I presume that's why he has been assessed as outstanding in the start up preparations.

PN93

MR ENDACOTT: That's right, and he said if you say I'm unsatisfactory then you can't expect me to comply with a condition that I've disputed the entire time and have no recognition for it. So he said, I want to have a meeting with my union about this to sort it out and the company made it quite clear we don't speak to employees with their union. This was Coal and Allied at the operation and from my experience Coal and Allied, even though they deny it have a hostile approach to unions, certainly wanting to meet and discuss with unions and that could be why that the correspondence was ignored.

PN94

In any event, Mr Dagg, presented himself to work at the time set out in his contract of employment, the rostering of when you start and you finish, and the company issued him with the verbal record of warning basically saying, at point 4:

PN95

Your continued failure to attend pre-shift meetings will result in further disciplinary action.

PN96

Well, as a natural consequence of warnings his termination, and this Commission may be familiar in other proceedings about the Coal and Allied disciplinary procedure and as a result Mr Dagg believes he has been unfairly treated. He indicates quite clearly he was never informed that he had to work additional hours without payment, the roster is specific, and the company when they gave the warning issued Mr Dagg with a document that was attached which is the Ravensworth's offer of salary employment explanatory notes and the company relies upon this, even though it is not written in the contract of employment, even though the document was never provided to Mr Dagg relies upon this to say, well, you were quite aware you had to start 15 minutes early.

PN97

I only draw you to a couple of parts of that document which is point 3, which says, agreement commences on the date of employment and then the third dot point says:

PN98

The relevant coal mining industry award is the basis of this agreement which is substantially better than the award provisions.

PN99

I won't tender the award provisions but the award provisions say, you work in excess of your hours you get paid overtime. I also would like the Commission to identify the roster at the back of the document provides Mr Dagg works 42 hours a week minimum, that not if you don't include the 15 minutes before the shift, the industry award is on 35 hours ordinary so there is seven hours overtime already built in but there is no dispute that that was - he was provided with a roster his start and finish time was discussed and he was told at the end of the shift he had a changeover.

PN100

But you look at the document and it goes down on the third page, the fourth page of it, it says at 10.2. Now, I assume this was a document that was given to the supervisors so that when they spoke to the employees they had a working sheet and the company says, it was made quite clear to you that you had to start 15 minutes early because it says, work pattern payment, shifts and start finish times as shown plus changeover.

PN101

Then it says, you note you should be at work 15 minutes before shift start, this is the handwritten note. Mr Dagg says that was never discussed or raised with him has no recollection of it, in fact, even the issue that the company has previously said that employees were told they had to work an extra shift once a month without payment, Mr Dagg also says that was never mentioned to him and that's not recorded in this document either.

PN102

All we submit, Commissioner, is that a fair reading of the contract of employment would not reasonably believe that Mr Dagg or any other employee would have to have worked time in excess of their shift through want to warning or termination or without payment. I have looked through documents, I have looked through every document that was provided to Mr Dagg when he commenced his employment, and the best is says is you perform the hours required to fulfil your role.

PN103

Mr Dagg was informed that he would be required to work the hours set out in his roster, and he also told that all the provisions of the contract of employment provided provisions better than the award. I've used those words, I don't repeat them, and we submit this is a simple issue. Mr Dagg and certainly anyone else that's in the same position as Mr Dagg shouldn't be warned, and, secondly, shouldn't be required to work the additional hours if the company is not prepared to pay for them, and we seek your assistance in conciliation in an attempt to resolve this issue. If the Commission pleases.

PN104

THE COMMISSIONER: Thank you, but before you sit down, the letter of 12 March 2002, from Ravensworth to yourself, refers to a then proposed meeting, Tuesday night, 18 March 2002. Did that meeting take place?

PN105

MR ENDACOTT: Yes, it did, sorry, I said the Monday. I was in the Commission on Monday doing final submissions, it was the Tuesday, I apologise for that, Commissioner. And that took place, yes, and it failed to resolve the issues. If the Commission pleases.

PN106

THE COMMISSIONER: Mr Whale?

PN107

MR WHALE: Thank you, Commissioner. Commissioner, if I could firstly deal with the part of the application which relates to the time that was taken and the various correspondence that has been exchanged between the parties in relation to this matter.

PN108

As I indicated from the outset of these proceedings, Ravensworth East Coal Management Pty Limited has taken over the business of Ravensworth, and all of the events which surround these proceedings pre-date that company taking over the business. Indeed, Commissioner, the Ravensworth East Coal Management Pty Limited is part of the Enex group of companies of which Oakbridge is another part and Ulanderra, many components of the Enex group of companies.

PN109

So in relation to the manner in which this matter has been dealt with today, we can't really provide any enlightenment as to the rationale, but can say that Enex, under the auspices of Enex, that the matter is being addressed and we believe addressed in the appropriate way.

PN110

THE COMMISSIONER: Has been addressed or is continuing to addressed?

PN111

MR WHALE: Well, is being addressed, and it certainly - Enex had some input into the meeting which occurred on Tuesday of this week between the site representatives and the CFMEU and, indeed, these proceedings form part of that issue.

PN112

In relation to the other legs of the union's application, there's a fundamental and common theme which underlies the matters before the Commission and which relate to, in fact, the interpretation of the employment contract, representations which were made in the process of offering employment, the performance appraisal in question and, indeed, the warning of Mr Dagg.

PN113

The common theme in all of these matters comes down to how the contract of employment is to be applied, and what is meant by the specific terms of that contract and how those terms were represented to applicants for employment in the employment process. There is a substantial gulf between the company's view as to those representations and meanings to that of Mr Dagg.

PN114

Could I also say at the very outset of this case, Commissioner, the company has not formed a negative view of Mr Dagg. His performance appraisal other than in one respect is a very satisfactory performance appraisal.

PN115

THE COMMISSIONER: Well, it is at the top of the scale, isn't it?

PN116

MR WHALE: It is. Mr Endacott provided us with one of the sheets, there are multiple sheets in the performance appraisal, and they hold Mr Dagg in good standing. So we're not here to vilify an employee, we're here to deal with one aspect of the way in which the company regards his contract of employment applying and how he regards it as applying.

PN117

The parties are fundamentally apart on the meaning of the terms of the employment agreement and in relation to the oral representations that were made in the employment process prior to Mr Dagg accepting employment. The company's position is that Mr Dagg along with other team members accepted an offer of salaried employment under the terms offered by the company. The offer of employment was based on the concept of a salary for a position, and Mr Endacott has kindly taken you to page 1 of the contract of employment, the second dot point, where it says that:

PN118

The object is to implement a salaried employment arrangement based on the concept of a salary for a position which fully compensates you for the performance of your role.

PN119

And the words "fully compensates" must be given a very wide meaning, and "the performance of your role" comes down to how the role was described to the employee, and I propose to deal with that as part of this address.

PN120

The offer of salaried employment, Commissioner, does not contain notions of ordinary hours or overtime hours, rather it states that the total employment cost and therefore the benefits arising under the agreement, fully compensate the employee for their position, including duties, time and attendance necessary to perform their role. Now, those elements of duties and time and attendance necessary to perform the role are contained in the second schedule, which Mr Endacott has kindly taken you to, that is on page 14 of the contract, schedule 2.

PN121

THE COMMISSIONER: My copy of the contract is not signed by Mr Dagg, I take it you do possess a signed acceptance of the terms?

PN122

MR WHALE: Yes, I do, Commissioner.

PN123

THE COMMISSIONER: I don't know whether it becomes an issue.

PN124

MR ENDACOTT: We don't dispute that that's the contract of employment.

PN125

THE COMMISSIONER: If it's not disputed, that's okay.

PN126

MR WHALE: Each of the pages are witnessed by Mr Dagg.

PN127

THE COMMISSIONER: Right, I accept it. So we're at schedule 2.

PN128

MR WHALE: Yes, 2.1.4, it says:

PN129

Your total employment cost is in full compensation for your position including the duties, time and attendance necessary to perform your role. Where you believe ...(reads)... consult your manager.

PN130

THE COMMISSIONER: Well, that's the nub of it, isn't it?

PN131

MR WHALE: There are other elements of the contract which are also relevant to this. If the Commission goes back to schedule 1, clause 1.1, which is on page 7.

PN132

THE COMMISSIONER: Page 7 or page 4?

PN133

MR WHALE: Page 4, and it says under employment and work performance:

PN134

As a salaried employee, you are to fulfil the requirements or your role and maybe reasonably required by the company and to comply with all legislative provisions.

PN135

Again there is this emphasis upon fulfilling the requirements of the role as may reasonably be required by the company. With one exception, the contract does not contain any concept of additional payments for circumstances which are not contemplated in the salary contract but, as I have indicated, there is no provision for paid overtime, there is no concept of overtime in the contract. There is no concept of additional payments consistent with the principle of a salary 4 position and the total compensation of all claims within the salaried contract.

PN136

The only reference to concepts of hours or time worked is contained in 2.1.4 on page 14, where it deals with this concept of where the employee believes that they are working additional time that there is recourse to their manager, and the other reference to circumstances where an employee is required to do something that is not contemplated by the contract is in the public holidays provision which is clause 7 on page 5 of the contract. If I can take you to subclause 7.5. It provides that:

PN137

An additional amount of $480 for a nominal 10.5 hour shift would be paid where the employee is required to work on public holidays.

PN138

Which was not incorporated in the remuneration model. The company's position, therefore, is that the employees have been in effect pre-paid for the requirement to work additional hours outside of the nominal rostered hours. It is our position that the employees accepted the employment on that basis and that they were informed in the interview and selection process and prior to accepting employment what was meant by the contractual terms and how the concept of a salary for a position operated or would operate in practice.

PN139

THE COMMISSIONER: Well, that will go to evidence, won't it, if this matter proceeds?

PN140

MR WHALE: Yes. If I could just outline briefly what that process was. The recruitment process adopted by the company was by a panel of interviewers. Each applicant for a position undertook a number of interviews prior to being made an offer of employment. The offer of employment when it was provided to the employee, the employee was taken through the offer of employment and the employee was taken through the explanatory notes which Mr Endacott has handed up to you, and those explanatory notes quite mirror the flow of the contract.

PN141

The explanatory sheet is in fact a proforma sheet which was used by the interviewers, as was the interview assessment sheet which recorded the interviewers assessment of each applicant and their responses to questions that were put to them.

PN142

Applicants, we say, were informed of what was meant by a salary for a position and the concept of a salary. Applicants were asked about the requirements to attend for additional shifts outside of the rostered hours with no additional payment, that is, the concept of no overtime. Applicants were informed that they would be required to attend for work prior to the commencement time and the likely duration of that attendance. Mr Dagg's interview assessment sheets demonstrate that he had no difficulty with that explanation other than to say that where he was required to work Sundays he would seek some prior notice for the requirement to work Sundays.

PN143

We say that his interview and assessment sheets confirm the depth to which the company has explained the requirement to work additional time without payment, and obviously if that becomes evidentiary matters we no doubt would provide all of those interviews and obviously people who participated in the interview process.

PN144

At the end of the day, Commissioner, there are 59 team members at Ravensworth East who have accepted employment on the basis offered by the company based on the contractual terms as contained in the offer of employment.

PN145

MR ENDACOTT: Well, I mean, I just object to that submission. I, on behalf of my members have been trying to a year to meet with the company to discuss the concerns of our members, and he just blatantly asserts that they've accepted them. Well, if you look at our correspondence you will see that that's just not the case.

PN146

THE COMMISSIONER: Well, it's Mr Whale's right to asserts what he wants to assert at this time.

PN147

MR ENDACOTT: Yes, I understand that, it's just that- - -

PN148

THE COMMISSIONER: And I don't see a basis for an objection. I see a basis for a rebutting submission.

PN149

MR WHALE: We assert that they have accepted employment on the contractual terms and on the basis of representations that were made to them as to how the contractual terms would be interpreted and would be applied, and we say that in simple contract law the common law of contract is not simply constrained to the written work but indeed the oral representations that were made by the parties, the invitations to treat, et cetera, which I won't go back to contract law, all of which form part of the fabric of the contract of employment.

PN150

The company's view is that the effect of the collective provisions of the salaried employment agreement, the representations made in the interview and selection process obliges employees under their contract of employment to work additional time required by the company, and this includes such things as the pre-start change-over and one shift per month as being an indicative number of hours, the change-over that's necessary, and they are not entitled to any additional payment for that work.

PN151

The company has made one concession in relation to some additional hours. The company has made a discretionary payment where indeed the requirement to work additional hours exceeded the company's expectation to employees. So the company has made some discretionary payments where employees were working far beyond what the company's expectation was, and if I take you back to clause 2.1.4 where it referred to where employees believe they were working hours in excess of the requirements, you should consult your manager and, indeed, a number of employees did have a problem with those hours and indeed the company responded by making some additional payments as a discretionary payment.

PN152

These issues are the nub of why we are here. The issue of the performance appraisal and Mr Dagg's unsatisfactory rating, relates to the fact that Mr Dagg was not prepared to work additional time which the company believes he is required to do. The verbal warning of 28 February is similarly related to his unpreparedness to work those additional hours. So if we resolve this question of the additional hours we get to the nub of why those warnings and the appraisal were given in the first place.

PN153

If I could finish by taking up one point, and I think it was probably an oblique reference to the company may well have contrived to amend its assessment to do some damage to employees generally and capture Mr Dagg. Mr Endacott indicated that the company as a result of the performance appraisal system amended it so as to capture Mr Dagg for not working the additional hours. Could I just indicate that the performance appraisal system is not a stagnant document, it is a document that is under constant review and, indeed, in the course of January through March 2001, the performance appraisal system did undergo a review.

PN154

The company didn't implement those changes until the March 2001 appraisal was completed, and the changes that were made to that performance appraisal in March 2001 don't just relate to the point that Mr Endacott has raised with you, point C, which says willingness to work additional time. In fact, the wording was changed, Commissioner, from does not go missing from the job to willingness to work additional time.

PN155

The other changes to the performance appraisal were that a number of other changes were made and they are for completeness the punctuality section was completely deleted, there were three sections in it, it was completely deleted. In the environmental section there were additional criteria added. In the quality of work section two criteria were expanded to four criteria. In the teamwork section there was a reduction of criteria from four to three.

PN156

So I just want to put on record there that the company didn't contrive to change one aspect of the performance appraisal section with a view to capping or knee capping an employee. The company made a number of changes as part of the review of the performance system. Certainly the company's use of the words "willingness to perform, willingness to work additional time, is consistent with the company's interpretation of the obligations arising under the contract of employment.

PN157

THE COMMISSIONER: Might I ask this of you. I think you told me that there were 59 people working under similar arrangements?

PN158

MR WHALE: Yes, Commissioner.

PN159

THE COMMISSIONER: Are you in dispute with any others besides Mr Dagg?

PN160

MR WHALE: Not that we're aware.

PN161

THE COMMISSIONER: I would ask that question of both of you.

PN162

MR WHALE: Yes. We understand that there isn't a dispute with other employees.

PN163

MR ENDACOTT: I can respond to that quite clearly, Commissioner.

PN164

THE COMMISSIONER: Just a brief response.

PN165

MR ENDACOTT: The employees raised, and I have had meetings with them, their concern about the contract of employment and instructed the union to pursue it. There is no doubt about that, and I wrote to the company to arrange a meeting.

PN166

THE COMMISSIONER: Is Mr Dagg representative of a class of persons?

PN167

MR ENDACOTT: Well, not in this specific issue, he's not representative of a class of persons, and we will be pursuing now it's manifested itself in the section which we disagree. I just want to respond briefly to a couple of points. One is we dispute the characterisation of our- - -

PN168

THE COMMISSIONER: I just might check that Mr Whale has finished his address, and I just want to clarify that point, not provoke you into a full response before he's finished.

PN169

MR WHALE: Commissioner, I wasn't going to go over the submissions that have been made by Mr Endacott which counter those that I've been putting forward, I thought it best that we move into conciliation of this matter.

PN170

THE COMMISSIONER: Thank you.

PN171

MR ENDACOTT: Just a couple of points. One is that certainly representation by a union is a prima facie representation on behalf of its members. I think that is a common tenet. We were requested by the members to pursue the issue of the additional time, it was the whole issue of the contract additional time, but the greatest manifestation was working the additional full day once a month, I think six times a year which we put which obviously led to a deep concern.

PN172

There was that letter which said don't speak to the employees, we are in representation. The company ignored it and just went off and had meetings with them, and what they did do, certainly we conceded, and we submit that conceded to at the arguments being put, is they agreed to pay them overtime for working the additional day, and the reason why they had to was because half the employees and a lot of the union members just refused to work it, said we're not working, in the case of Mr Dagg and others, take us head on.

PN173

The company realised it could not have a situation where half the people were working and half the people were sitting on their digs about their contract of employment. They weren't speaking to the union about it, and what they did do is they agreed to pay- - -

PN174

THE COMMISSIONER: The company represents the situation rather differently, don't they? They have gone along with the provision in the contract of employment to discuss such matters with their employees?

PN175

MR ENDACOTT: Well, that's their evidence, but we would submit that after three letters, at this stage four letters saying we want a meeting, the union members are in dispute about the operation of their contract of employment to then say, well, the union never approached us, it was a representation by individual employees. What they did was that they agreed to pay the overtime for the double time for working on the Saturday, for working on the full shift. They had a meeting with the employees and they presented an overhead and it says here, and this is a presentation by the company:

PN176

Reasons why people are not working additional shifts. No direct reference in contract for working additional shifts.

PN177

They ultimately agreed to pay these additional shifts. But my friend here submits that, well, he submits that the employees just took what they could, but the company made it quite clear at the end of when they said we'll pay you only for this shift, they made it quite clear, it says solution to be implemented. A range of solutions was suggested, that the first solution to be adopted is, and this is what the company said they were going to do:

PN178

The company will pay for additional shifts worked every month without the shift a month qualification.

PN179

Now, it doesn't say anywhere in the document that you're required to do that. It says:

PN180

Personnel working reasonable additional time at the beginning and the end of their roster shifts without additional payment. Normally this would be for no more than a couple of hours.

PN181

Well, certainly that wasn't the case. And then it finishes by saying, this is how they finish the meeting, boom boom:

PN182

Personnel should be reminded that failure to work any reasonable additional time constitutes a breach of the staff agreement.

PN183

Not talking to the union:

PN184

The individual performance program clearly communicated for this year includes a section on the working of additional time.

PN185

Now, I don't want to be critical of Coal and Allied, but this is a company that dismisses employees, and I've got years of experience, they don't give a stuff whether it's fair or unfair, they just fight it, they turn up with lawyers and- - -

PN186

MR WHALE: Might I just intercede, we're not Coal and Allied.

PN187

MR ENDACOTT: Well, they certainly were Coal and Allied at the time, they're not as of last Thursday, and the employees know it. They know- - -

PN188

THE COMMISSIONER: Well, they are not Coal and Allied now.

PN189

MR ENDACOTT: But at the time they were, and if you protested they don't care, they'll dismiss you, they'll fight you in the courts, they'll go to the High Court, that's their view, and- - -

PN190

THE COMMISSIONER: Well, I think to quote you, I think boom boom, we should go into conciliation now.

PN191

MR ENDACOTT: Yes, I make no further submissions, Commissioner.

PN192

THE COMMISSIONER: We are adjourned into conference.

NO FURTHER PROCEEDINGS RECORDED [11.03am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

MFI #1 CONTACT OF EMPLOYMENT OF MR DAGG PN15
MFI #2 LETTER FROM UNITED MINE WORKERS FEDERATION OF AUSTRALIA TO RAVENSWORTH EAST OPEN CUT COAL MINE DATED 13/08/2001, LETTERS ADDRESSED TO PEABODY OPEN CUT MINING PTY LIMITED DATED 22/03/2001, 30/03/2001, 07/03/2001 AND 28/02/2001 PN43
MFI #3 LETTER FROM THE COMPANY TO THE UNION DATED 21/03/2001 PN55
EXHIBIT #MFI 4 BUNDLE OF DOCUMENTS PN87