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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 2, 16 St George's Tce, PERTH WA 6000
Tel:(08)9325 6029 Fax:(08)9325 7096
TRANSCRIPT OF PROCEEDINGS
O/N WT05120
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
DEPUTY PRESIDENT McCARTHY
AG2002/228
APPLICATION FOR CERTIFICATION
OF AGREEMENT
Application under section 170LK of the Act
by Byrnecut Mining Pty Ltd for certification
of the Byrnecut Mining Pty Ltd Certified
Agreement 2002
PERTH
10.03 AM, WEDNESDAY, 7 AUGUST 2002
PN1
MR T. ADAMS: I appear for Byrnecut Mining Pty Ltd.
PN2
THE DEPUTY PRESIDENT: Can you take me through this?
PN3
MR ADAMS: Yes. If the Commission pleases, this is an application pursuant to Division 2 section 170LK of the Act. It is an agreement covering Byrnecut Mining's operations. At this stage, exclusive to Western Australia. Predominantly, in fact exclusively, as gold and nickel underground mining operations.
PN4
THE DEPUTY PRESIDENT: Which nickel?
PN5
MR ADAMS: Gold and nickel.
PN6
THE DEPUTY PRESIDENT: Okay, thank you.
PN7
MR ADAMS: If I can just take the Commission through the process that was followed by the company with respect to the making of the agreement. There was a mail-out conducted by the company on 6 and 8 July this year and I should interpose at this juncture that much of the information with respect to the ballot and some other aspects of this submission that I am about to make are covered off on in the statutory declaration of Mr Evers who is the Finance Director of the company, your Honour. The notice was sent to employees by mail. That is, those employees who were not at the time working - who were otherwise off duty on the 6th and they were handed or made available to everybody at each of the company sites on 8 July.
PN8
An explanation was provided by the project managers at each of the sites in relation to what the company's intentions were with respect to the making of the agreement. An explanation was also provided as to the terms of the agreement and employees were invited at that juncture to discuss any concerns or issues they may have had with the project manager consequent upon that presentation. There were few, if any, I am pleased to say, concerns or issues raised by employees sought to be covered by the agreement. The voting on the agreement commenced on Tuesday the 23rd, which is 15 days after the notice to employees was sent and a copy of the agreement provided to all of them. The voting concluded on 25 July.
PN9
Substantially that is the point at which the agreement was made because there were - of all the votes that were recorded at that time, there was an overwhelming majority in favour of making the agreement. So, with effect from that date the agreement was made. I should hand up for the Commission's benefit at this point a copy of the notice that was sent to employees on 6 July.
PN10
PN11
MR ADAMS: So, in section 5.7 of Mr Evers' statutory declaration, mention is made of the mail-out and the timing of mail-out in relation to the receipt of both the notice and a copy of the agreement which was appended to the notice for employees who were not working at the time. And a copy of the agreement was made available to everybody at each location at the time the presentations were made by the project managers. Copies were also appended to the notice board. And if anybody chose to, a copy of the agreement was made available to them from the site clerk, which they could take away at their leisure.
PN12
The explanations that were provided to employees as part of that presentation process during the period between receipt of the agreement and the notice by the employees in the actual voting process was conducted predominantly by the project managers. You will see from Mr Evers' statutory declaration that there are two elements that probably need to be brought to the Commission's attention. The first is that each of the crews at all of the locations were given a presentation by the project manager as to the essential elements of the agreement, why the company wanted to make the agreement. And there was an invitation at those presentations for queries or concerns, once again, to be raised.
PN13
And there is a second element which concerns a requirement under the Act for the explanation of the terms of the agreement to be conducted in such a fashion that the company is satisfied that everybody who was present understood the import of the message at the presentation, having regard for the workers ethnicity and religion and a range of other factors which the Commission is aware of. In Mr Evers' statutory declaration mention is made at section 5.11 of the manner in which the company had regard for those requirements. And I should point out that there was some attention paid to the question of the degree or extent to which employees were deemed or considered to have understood what the message was that was being delivered to them via that presentation.
PN14
The underpinning principle, however, on which the company proceeded with those presentations was fundamentally that there is regulations under the Mines Act or the Mines Safety and Inspection Regulations 1995, Part IV, Division 1 - there is a regulation at 4.17 which specifically requires companies or contractors who engage themselves or conduct business pursuant to the Mines Safety and Inspection Regulations to satisfy themselves that the people whom they are employing have some knowledge or are fluent in English. Obviously, because they need to be able to read and interpret safety signs and other related material and signs that one finds commonly on minesites.
PN15
So, having knowledge of that regulatory requirement, the company proceeded on the basis that there ought not be anybody at the presentations who did not understand either the message that was being delivered or the import of it. Notwithstanding that, however, the company was very careful to ensure that following the presentation, the project manager made himself available for employees to come and speak with him personally as to any queries or concerns or issues they may have had. And, in particular, the company made clear at the presentation that should anybody not understand what was being presented to them, either the message itself or what the message was intended to convey, was also invited to come and discuss the issues with the project manager.
PN16
I am pleased to say that there were no such approaches made by anybody and that the company proceeded accordingly with confidence that the message that was delivered as part of the presentations was understood by everybody. One further comment in relation to the ballot process. I am also pleased to say that following the issuance of the notice and a copy of the agreement on 8 July, there were no variations sought to be made or, in fact, made to the agreement during that period. That agreement that was subsequently voted on is the agreement that was made available to employees on 8 July. So, having had the vote of confidence, if one can put it that way, from the employees concerned with respect to the ballot, the company lodged the agreement for certification.
PN17
In terms of the requirements of section 170LT with respect to - - -
PN18
THE DEPUTY PRESIDENT: Just before you get to 170LT, there is no statutory declaration by any employees or representatives of any employees nor is there a signatory to the agreement, an employee's signature.
PN19
MR ADAMS: Yes.
PN20
THE DEPUTY PRESIDENT: From what has been filed. So, do you have any comment about that?
PN21
MR ADAMS: Well, the only comment that I choose to make in relation to that is the agreement was not negotiated with a group of employees or an individual employee. There is no signatory to the agreement because by extension of that logic there was no negotiation. There was no requirement, as far as I am aware, either under the Regulations or the Act, for the agreement to be executed by an employee representative.
PN22
THE DEPUTY PRESIDENT: No, there isn't.
PN23
MR ADAMS: So, the agreement was drafted by the company, having regard for the no disadvantage test and related matters and put to the employees on the basis of, "We would like to execute this agreement with you. Here is why we would like to do it." And conducted the presentation and left it to the employees to make their own mind up.
PN24
THE DEPUTY PRESIDENT: So, what you are saying is that the agreement was made when the ballot was completed successfully?
PN25
MR ADAMS: Yes.
PN26
THE DEPUTY PRESIDENT: Okay. Thank you, Mr Adams. And just on that ballot, can you outline a bit to me how that was conducted.
PN27
MR ADAMS: It was conducted at each site at the end of shift. At each shift change there was a presentation made by management representatives for each of the crews coming off shift. They were taken through the essence of the agreement once again. They were handed a ballot paper. Each of their names for the people on shift at the time were ticked off.
PN28
THE DEPUTY PRESIDENT: Yes.
PN29
MR ADAMS: If you like, on a roll. They then went elsewhere to a separate room where they cast their vote. The ballot paper simply said the company wishes to make the agreement.
PN30
THE DEPUTY PRESIDENT: Okay.
PN31
MR ADAMS: Do you agree or disagree with that? Yes/No. Tick a box. Fold the ballot paper and put it in a box.
PN32
THE DEPUTY PRESIDENT: Okay, thanks. And they were counted and there was a majority and what you are saying is that once that count was undertaken with a successful majority, the agreement is made?
PN33
MR ADAMS: The ballot boxes were opened at each site and they were counted by the project manager, the site clerk and a scrutineer was designated, an employee scrutineer from each site.
PN34
THE DEPUTY PRESIDENT: Okay.
PN35
MR ADAMS: The votes were counted and e-mails sent to Mr Evers, the Finance Director, who tallied all the votes. And I suppose there were some unders and overs at each site according to the preferences of the employees who were voting. But at the end of the day, when all the votes were counted across seven odd sites, there was an overwhelming majority in favour.
PN36
THE DEPUTY PRESIDENT: Okay. Good, thank you, Mr Adams. Yes?
PN37
MR ADAMS: With respect to 170LT, the no disadvantage test, I suppose there are two elements to this. There is the cash and the non-cash conditions side. I should preface the remarks that I have to say in relation to the no disadvantage test by indicating to the Commission that the company conducts its business in respect to its underground workers on piece rates. The AW Gold Mining and Processing Award which is one of the awards to which the no disadvantage test has been conducted in relation to this proposed agreement makes provision at clause 20 for workers engaged under the award to adopt a piece rate system of payment.
PN38
I sent to the Commission yesterday pursuant to your direction some documentation which set out the calculations with respect to the no disadvantage test, based around employees working in accordance with the wages clause and the classifications set out therein. I also sent to the Commission yesterday a document, an 11 page document or thereabouts, which sets out the earnings by employee by classification for the financial year just concluded, 2001/2202.
PN39
PN40
THE DEPUTY PRESIDENT: Thank you for supplying those. With piece rates it is virtually impossible to compare the agreement with the award without that information.
PN41
MR ADAMS: Yes. If your Honour pleases, I do have an updated document which, just before you marked that earlier exhibit, perhaps I should make available to you. It is essentially the same information, however, it is shown slightly differently. And the reason we wanted to do that is because the Commission will probably be aware, having received the information yesterday, that there are a number of people by classification who, on the face of it, would seem to have earned less than the no disadvantage test would require. And those particular employees are marked on that document you have before you, in yellow.
PN42
THE DEPUTY PRESIDENT: Okay. Well, do you want me to replace those two previous ones with this one or add this one to it?
PN43
PN44
MR ADAMS: Very well, thank you.
PN45
THE DEPUTY PRESIDENT: Perhaps you can take me through that.
PN46
MR ADAMS: So, exhibit A4 is a representation by the company of all of the employees on the payroll at the time by classification. I have another document that perhaps the Commission might want to look at that will make the explanations slightly easier to follow.
PN47
PN48
MR ADAMS: That A5 is a document which establishes what the comparable award classification is, having regard for the workers classifications employed by the company. What the best fit is in terms of the wage classifications set out in the particular awards and what the no disadvantage tells us in relation to what the average earnings would be. And so exhibit A4 then extrapolates that information across all of the employees in the company at the time the agreement was made. Now, A4 tells us that in relation to the employees who have been categorised as underground workers group 8, which is the first three pages of exhibit A4, the first dozen and a half or thereabouts, 2 dozen employees have, on the face of it, made earnings during the last financial year which are less than what the no disadvantage test tell us.
PN49
There are a couple of reasons for that. The first of which is that most of those employees have not worked a full year. And the second reason is, for those employees who have worked a full year, is that they were engaged originally at the commencement of the financial year just gone in a classification which paid less than the classification which they have been designated in this exhibit.
PN50
THE DEPUTY PRESIDENT: I see.
PN51
MR ADAMS: So, if you like, in relation to those employees who have earned less on exhibit A4, it is more probable than not that had they worked the full year in that classification they would have exceeded the no disadvantage test earnings.
PN52
THE DEPUTY PRESIDENT: Yes, yes. So what you say is that that would satisfy the on balance test?
PN53
MR ADAMS: Yes, yes.
PN54
THE DEPUTY PRESIDENT: Thank you.
PN55
MR ADAMS: And the same applies with respect to certain other classifications in exhibit A4. There aren't terribly many. I am happy to say that in most cases, because the company applies a piece rate method of the calculation of payment for these employees, that by far and away the majority of them earn substantially in excess of what the no disadvantage test suggests. The vast majority earn many thousands more than what the award would suggest ought to otherwise be paid for those comparable classifications. In some cases, upwards of 20 to $30,000 more. Which, I am sure the Commission will be aware, is unremarkable in the context of piece rate earnings in the mining industry.
PN56
But the additional confidence that I should express in relation to this part of the no disadvantage test is to say that there is provision contained in the proposed agreement at clause 14 at the bottom of page 6 which indicates that in any event should an employee over the course of the full year, and assuming that they work the full year in a classification unchanged, should they earn less than what the no disadvantage test would otherwise tell us, then the company will undertake to ensure that the earnings for that employee over the course of that year will equate to at least what they would otherwise have been entitled to under the award.
PN57
THE DEPUTY PRESIDENT: So, there will be some sort of monitoring of hours - - -
PN58
MR ADAMS: Yes. Yes, there will.
PN59
THE DEPUTY PRESIDENT: - - - and application of those hours to have on-going comparison or annual comparison anyway?
PN60
MR ADAMS: Well, yes, yes, your Honour. The plan is that the company will seek from the Australian Mines & Metals Association an update of the actual no disadvantage test for those classifications where the company apprehends that there may be a deficiency in the earnings. We will provide the updated no disadvantage test information and they will contrast that with the actual earnings and look at whether or not there has been a change in classification over the year. If, as a consequence of all that, there is a deficiency, that deficiency will be made up.
PN61
THE DEPUTY PRESIDENT: And that will be applying the standard rosters that they have for - - -
PN62
MR ADAMS: Yes.
PN63
THE DEPUTY PRESIDENT: - - - the workers bound by this agreement?
PN64
MR ADAMS: That is right, yes.
PN65
THE DEPUTY PRESIDENT: Okay, thank you, Mr Adams. That was a question I was going to raise.
PN66
MR ADAMS: Now, there are a couple of other areas which I am duty bound to the Commission's attention, away from the cash for a minute, but incidental to it, which concern areas of the award where there are departures on the conditions side in the proposed agreement. And the two that are relevant for the purposes of this exercises are long service leave or in particular, I should say, long service leave. The proposed agreement purports to grant an entitlement to long service leave for employees working under the agreement pursuant to the WA Long Service Leave Act which, as the Commission would be aware, grants an entitlement after 15 years continuous service.
PN67
Whereas the award requires long service to be calculated and granted in accordance with the standard long service leave provisions from the WA Industrial Gazette at volume 73, page 1. So, there is a departure from the standard, in the context of the long service leave entitlement. There is no intention on the part of the company to apply the terms of the long service leave general order. The company takes the view that the difference in the qualifying period as between 10 and 15 years is more than adequately compensated for when one has regard for the annual earnings piece rate earnings that employees make under the agreement.
PN68
THE DEPUTY PRESIDENT: So, again, you are saying that the difference would still fit within the on balance test?
PN69
MR ADAMS: Yes. In our submission, your Honour, the requirements of section 170XA are more than adequately covered.
PN70
THE DEPUTY PRESIDENT: Thank you.
PN71
MR ADAMS: XA, I am sorry, in the context of the no disadvantage test.
PN72
THE DEPUTY PRESIDENT: Thank you.
PN73
MR ADAMS: The other requirements of 170LT in relation to the valid majority of employees electing to make the agreement, we have covered already. There was a properly conducted ballot which was scrutineered and the outcome of the ballot was beyond doubt. There was an overwhelming majority of employees who wished to make the agreement. There was, pursuant to the declarations made by Mr Evers in his statutory declaration, a level of explanation of the terms of the agreement and the company's intentions in relation to it that, in our submission, fulfil the requirements of 170LT(7). There is a dispute settling procedure in the proposed agreement and is contained in clause 20.
PN74
And there is also an expiry period set out in clause 5 which is intended to be 3 years from the date of making of the agreement. Unless the Commission has any particular questions in relation to the no disadvantage test or related matters, your Honour, that is all that I - - -
PN75
THE DEPUTY PRESIDENT: All right. Just a couple of questions. Appendix 1 is referred to throughout the document. I don't appear to have a copy of that in the agreements that were lodged.
PN76
MR ADAMS: If you give me a moment, your Honour, I will see if I can source a copy of that and I will hand it up and it can be exhibited with the documents.
PN77
THE DEPUTY PRESIDENT: Yes, okay, thank you.
PN78
MR ADAMS: Thank you, your Honour. I apologise for not appending that to the original application. That is the appendix - - -
PN79
THE DEPUTY PRESIDENT: That is appendix 1. So that forms part of the agreement?
PN80
MR ADAMS: Yes. It sets out the rosters which are worked at the sites that the company currently operates at. Indicates that piece rates are payable at all of those sites, what the transport or the designated transport arrangements are in the assembly points, and what arrangements are in place with respect to accommodation.
PN81
THE DEPUTY PRESIDENT: Thank you. We can see without that it was possible for me to make an assessment. Just a question, Mr Adams. With clause 6 of the agreement:
PN82
This agreement stands alone. All other agreements and awards are excluded from having application to employees while they are performing work covered by this agreement.
PN83
That, read in context of the last paragraph of clause 3: Application, I am assuming what is intended there is that clause 6 is subject to that paragraph in clause 3?
PN84
MR ADAMS: Yes, it is.
PN85
THE DEPUTY PRESIDENT: Yes.
PN86
MR ADAMS: The intention certainly is that the parties have an opportunity during the currency of this LK agreement to enter into AWA should they choose to. So, to the extent that - - -
PN87
THE DEPUTY PRESIDENT: Yes. I think that is fairly obvious but I think it is just in case of any interpretive difficulty down the track.
PN88
MR ADAMS: Yes.
PN89
THE DEPUTY PRESIDENT: It is worthwhile having that on record. Clause 11, just before "work patterns". That last dot point. I raised this issue in another agreement that was before me a week or so ago. Can you just give an expression or expansion on how that is to be applied and how that can be ensured not to subsequently import provisions that would fail the no disadvantage test.
PN90
MR ADAMS: Well, that is the last dot point before work patterns in bold - - -
PN91
THE DEPUTY PRESIDENT: Work patterns, yes.
PN92
MR ADAMS: On page 4?
PN93
THE DEPUTY PRESIDENT: Yes.
PN94
MR ADAMS: The way the agreement is intended to work is that all of the rosters that are worked by the company and the Commission will see from appendix 1, are typically 2 x 1.
PN95
THE DEPUTY PRESIDENT: Yes.
PN96
MR ADAMS: 2 weeks on, 1 week off. There is no intention to change those cycles of work or rosters. And really, what it is intended to express is that should be a departure, for example, from piece rate earnings at a particular site, which is not likely, I hasten to add, but in the event that there is a pattern of work, if one can characterise it that way, which comes outside of the scope of this agreement, then those different arrangements will be drawn to the employees attention or made known to them prior to them being sent to those particular sites. And the terms and conditions which attach to that site will be made known to the employee at the time.
PN97
However, given that the roster will stay the same and that the award will otherwise apply to the work, there is no intention by the company to alter in any way the earnings of employees as a consequence of a transfer to another site.
PN98
THE DEPUTY PRESIDENT: Yes, I see. And I suppose that clause you identified in clause - or that paragraph in clause 14 would nevertheless apply so that - - -
PN99
MR ADAMS: Yes, it will, yes.
PN100
THE DEPUTY PRESIDENT: So that there wouldn't be any disadvantage? Yes, thank you.
PN101
MR ADAMS: No, that is certainly not the intention.
PN102
THE DEPUTY PRESIDENT: Similarly, I suppose, that is the case with clause - the same clause, 11, under: Duties. If there is a change in job classification, the same sort of circumstance would apply, I am presuming?
PN103
MR ADAMS: Precisely.
PN104
THE DEPUTY PRESIDENT: Thank you.
PN105
MR ADAMS: Yes.
PN106
THE DEPUTY PRESIDENT: Just bear with me for a moment. I think you have answered most of the questions that I did have in your submissions. My pretty standard question I have, grievance resolution procedure, clause 20. I am assuming that means grievances related to the application of the agreement, does it?
PN107
MR ADAMS: Yes, it does.
PN108
THE DEPUTY PRESIDENT: And assistance in resolution means what?
PN109
MR ADAMS: Well, the intention ultimately is that if the matter is unable to be resolved in a conciliatory sense then the company's wish would be that the matter be arbitrated or in some fashion concluded by the Commission.
PN110
THE DEPUTY PRESIDENT: Okay. So, that would be arbitration by consent at that time or - - -
PN111
MR ADAMS: Yes, it would be.
PN112
THE DEPUTY PRESIDENT: Okay, thank you. Well, thank you for that explanation of the process and the content of the agreement, Mr Adams. I am satisfied that the processes have complied with the requirements of the Act and the content of the agreement is such that on balance there is no disadvantage to the employees and in all other respects complies with the requirements of the Act. That being the case, the agreement will be certified, to take effect on and from today's date. I have prepared a statement that will be incorporated into the transcript, further expanding on those reasons for the agreement being certified. So, I congratulate the parties on reaching that agreement and, in particular, the explanations given this morning that made it able to be certified this morning, Mr Adams. So, I appreciate that. This - - -
PN113
MR ADAMS: Can I just make one comment on the record, your Honour, before you conclude? On behalf of the company, can we thank you for expediting the listing. The company's senior management representatives who are here with me today have an important engagement overseas and they are leaving on Friday. So, at very short notice, the Commission has listed this matter and for that we are very appreciative.
PN114
THE DEPUTY PRESIDENT: Thank you, Mr Adams.
PN115
MR ADAMS: Thank you.
PN116
THE DEPUTY PRESIDENT: This matter is adjourned.
ADJOURNED INDEFINITELY [10.34am]
DEPUTY PRESIDENT
This was a statement by Deputy President McCarthy at the certification proceedings on 7 August 2002 to be incorporated into transcript.
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1966
s.170LK certification of agreement
Byrnecut Mining Pty Ltd
(AG2002/228)
BYRNECUT MINING PTY LTD CERTIFIED AGREEMENT 2002
This is an application to certify an agreement pursuant to section 170LK in Division 2 of Part VIB of the Workplace Relations Act 1966 ("the Act"); the agreement this time to be known as the Byrnecut Mining Pty Ltd Certified Agreement 2002.
Having heard what each of the parties have said and having read the statutory declarations of Robert David Evers, Finance Director, Byrnecut Mining Pty Ltd:
· I am satisfied the relevant requirements of the Act, and the Australian Industrial Relations Commission Rules 1998 ("the Rules", have been met. Specifically, I am satisfied that the agreement has been entered into in the manner consistent with the requirements of the Act; that the employees have been given the relevant notice of the intention to enter into an agreement, or to make the agreement; that the terms of the agreement were explained in an appropriate way to all the employees who are to be covered by it; and the agreement has been approved by a valid majority of employees at the relevant time. The application has been lodged within a time period prescribed within the Act.
· I am also satisfied and find that Byrnecut Mining Pty Ltd as Trustee for Byrnecut Mining Unit Trust is indeed a constitutional corporation and a single business to be covered by the agreement, and that the agreement applies only to that organisation.
· It is clear, and I find, that the agreement meets the no disadvantage test as defined in the Act and, indeed, there is to be no reduction in the overall terms and conditions of employment specified in the awards which now cover employees covered by this agreement. The agreement contains the necessary dispute settlement procedure and, furthermore, the agreement specifies a nominal expiry date in accordance with the requirements of the Act.
· The agreement also has no provisions in it that are inconsistent with Division 3 of Part VIA, nor does it contain any provision of the nature identified in section 170LU(2A), nor has there been any conduct of the nature identified in section 170LU(3) which would prevent me from certifying it.
These and all other requirements of the Act and the Rules have been itemised in a checklist that will be placed on the file.
And I, therefore, indicate to the parties that the agreement will be certified with effect from today's date, but to operate in accordance with its terms, and the agreement is to remain in force for three years from the date of certification as is specified in the document.
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