C2002/5713, Transcript of Proceedings [2002] AIRCTrans 5215 (30 December 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

C2002/5713

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

and

RAVENSWORTH COAL MANAGEMENT PTY LTD

Notification pursuant to Section 99 of the Act
of a dispute re policy on sick leave

SYDNEY

10.13 AM, WEDNESDAY, 11 DECEMBER 2002

PN1

THE COMMISSIONER: Good morning. I'll take appearances, please.

PN2

MR K. ENDACOTT: If it pleases the Commission, Endacott, initial K, appearing for the Construction, Forestry, Mining and Energy Union, Mining and Energy Division, and with me at the bar table is a MICK DOBIE who is a lodge official of the Ravensworth-Narama Lodge, if the Commission pleases.

PN3

MR J. DE FLAMINGH: May it please the Commission, de Flamingh, initial J. I seek leave to appear on behalf of Ravensworth Coal Management Ltd. With me at the bar table is MR GRANT FARRER, operations manager.

PN4

THE COMMISSIONER: Thank you. Is leave opposed, Mr Endacott?

PN5

MR ENDACOTT: Yes, it's opposed, Commissioner.

PN6

THE COMMISSIONER: Mr de Flamingh, you can tell me why you should appear.

PN7

MR DE FLAMINGH: Thank you, Commissioner. The purpose of my appearance today is to present the relevant factual and legal matters in a clear and concise manner. I am instructed to seek leave pursuant to section 42(3) of the Act which, having regard to the subject matter of the dispute, we consider there are special circumstances which make it desirable for me to appear and for the company to be represented. The dispute potentially raises technical legal issues, potentially concerning the interplay of the certified agreement and arguments about contractual terms. The company also has issues about jurisdiction with the Commission to deal with the matter.

PN8

Further Commissioner, in my submission, the company can only be adequately represented by a solicitor. The company has no specialist industrial relations or human resources function. The company relies on consultants and lawyers. You would be familiar, Commissioner, with Mr Wade, who often appears and seeks leave to appear in these circumstances. He is unavailable today. Mr Farrer, the operations manager of the mine has never represented the company before in Commission proceedings.

PN9

With us also today is Ms Tracey Clements who, similarly, is unaccustomed to dealing with industrial disputes. Indeed, this is her second attendance at the Commission and she too has not dealt with - not appeared on behalf of the company. Also in the Commission today is Mr Steven Hubert, mine manager for Ravensworth. His presence concerns the following dispute. I would also submit that the union is not prejudiced by my appearance. If it pleases the Commission.

PN10

THE COMMISSIONER: Thank you. Mr Endacott?

PN11

MR ENDACOTT: Thank you. Commissioner, the legislators have determined that the right to be represented by agent or counsel in the Commission is fettered and it's fettered by them deciding on the inclusion of section 42. Section 42 places high hurdles on the grounds at which leave should be granted where there is an objection from the - where leave is opposed. And the words used in the relevant section of the Act is "special circumstances", and I note the thing "special circumstances" that make it desirable. We would say that the notification of a dispute about the unilateral change in policy doesn't give rise to special circumstances. I would submit that they're bread and butter issues before this Commission.

PN12

I know my friend refers to legal issues, contractual, jurisdictional issues of the Commission, but he doesn't specify why those issues are such but legal representation is required. And certainly we say that the special circumstances don't exist with respect to the additional test - is that leave is to be granted if the Commission is satisfied that a party can only adequately be represented by counsel or agent. We submit that hasn't been met. This company's owned essentially by Extrata which is certainly one of the world's largest mining companies - I mean, a multi-billion dollar mining company.

PN13

THE COMMISSIONER: I have some recent familiarity with Extrata.

PN14

MR ENDACOTT: Yes. And to say that that company doesn't have within its ranks the resources to adequately represent itself before a lay jurisdiction is, we would say, on its face and prima facie, shouldn't be accepted. So we oppose leave on those grounds. I note my friend says that there's the additional point and that is one of that the union won't be prejudiced. I will respond to it even though I note that it is not a test required to be satisfied by section 42. I am not legally qualified and therefore we submit that if the company is legally represented then there would be some prejudice, but I also note that that's not a test that's referred to in section 42. If the Commission pleases.

PN15

THE COMMISSIONER: Particularly in the light of a foreshadowed jurisdictional objection to the hearing of this matter and given I take Mr de Flamingh's word that there is no dedicated HR function within the company or role for anyone within the company, I do grant leave to Mr de Flamingh to appear in this matter. Mr Endacott?

PN16

MR ENDACOTT: Thank you, Commissioner. Commissioner, I seek leave at the commencement of the proceedings to amend the notification of alleged industrial dispute by the inclusion of a point (b).

PN17

THE COMMISSIONER: Are you going to hand up anything or do I write it down?

PN18

MR ENDACOTT: No. No, I'm not, Commissioner. Point (b), that is, the failure of the company to provide employees - - -

PN19

THE COMMISSIONER: I've got up to "failure" so far so just a little slower.

PN20

MR ENDACOTT: Yes. Sorry. Failure of the company - - -

PN21

THE COMMISSIONER: Yes.

PN22

MR ENDACOTT: - - - to provide employees who are members of the CFMEU and covered by the terms of the certified agreement - - -

PN23

THE COMMISSIONER: Just wait a moment.

PN24

MR ENDACOTT: - - - with Christmas beer and a ham as - - -

PN25

THE COMMISSIONER: "Who are covered by the certified agreement" - I'm - - -

PN26

MR ENDACOTT: Yes.

PN27

THE COMMISSIONER: - - - much slower than you are. Right. With a - - -

PN28

MR ENDACOTT: Christmas beer and ham as required by existing agreements.

PN29

THE COMMISSIONER: Christmas beer and a ham?

PN30

MR ENDACOTT: Yes. And the treatment of union members less favourably than other employees.

PN31

THE COMMISSIONER: Okay. I've noted the beer and ham.

PN32

MR ENDACOTT: Yes. Just these two issues - - -

PN33

THE COMMISSIONER: And I grant leave to the application to be amended in the terms you've just read out.

PN34

MR ENDACOTT: Thank you, Commissioner. The factual basis of the dispute set out in the notification is quite brief and I'll specifically refer to point (a) initially. Commissioner since - I'll use the words time immemorial, but check that by saying, well, as long as I can determine the practice, employees that were required to attend funerals or that attended funerals were given the option to, if it wasn't an immediate family member, to take a sick day, and that was the practice.

PN35

Mr Dobie tells me that he commenced employment in 1993 and within four days of commencing employment, he unfortunately had to attend a funeral and spoke to the then human resources manager about taking a day off with pay, and the human resources manager, back in 1993, said, "No. We have a practice. As long as you give us the notice of the funeral you're attending, we will take it as sick leave if you're required to take the whole day or you can make the time up". And that is the practice that had remained in place until this year.

PN36

An unfortunate circumstance arose. The company, during the term of the current certified agreement, retrenched employees and this initial happenstance - within a period of a couple of weeks, three of the ex-employees died. And I am informed generally the issue arose about two funerals were on the one day and one was a week or so later. And in accordance with the normal practice that had occurred up to that time, the employees informed the company that were attending - because, as you can imagine, the funerals were related to people that they were close with - had worked with for many years and informed the company that they would be absent because they were to attend the funeral, and I understand when the request was made that there was no objection at the time, but the employees were subsequently informed either just as they were about to knock off for the shift before the funeral, or not until after they'd taken the day off, that sick leave would not be paid. And the company said it's because it had changed its policy. Now - - -

PN37

THE COMMISSIONER: How many were going? Everybody?

PN38

MR ENDACOTT: No, not everybody. Not everybody. I can't - I don't have the exact numbers, Commissioner. People have signed forms telling me the circumstances that occurred, but the - they were informed that they could either take leave without pay, access some other leave if it could be available, but they wouldn't be paid sick leave because the policy had changed. It seems unusual that a policy in 13 years is changed without the employees - without the vast majority of employees knowing, that certainly a number of them knowing about it only after they've raised with their supervisor they were taking it and the supervisor didn't mention it.

PN39

So that's the concern, Commissioner. The issue of the employees is not necessarily the change of policy, but the fact is that the policy - the procedure change wasn't communicated to the employees in a timely fashion. And we submit that it's not open to the company to have a position that operates for years that employees are readily informed is available to them and then change it and not tell people or, in fact, people act in accordance with in and then say - then change it and tell people that they're now complying with the change. Now, the agreement is not silent with respect to what happens with respect to change and - do you have a copy of - - -

PN40

THE COMMISSIONER: I don't.

PN41

MR ENDACOTT: I'll tender a copy to you, Commissioner - to the Commission. I've printed that off the Osiris website. I apologise I've printed two pages per page. It's a practice I've been recently adopting because of - to reduce the amount of paper I personally consume.

PN42

THE COMMISSIONER: I'm a bit of a closet Greenie myself.

PN43

MR ENDACOTT: And if we go to page 5 and point 4, aims. It says:

PN44

4. Aims and objectives of the agreement.

PN45

And the third paragraph says:

PN46

Throughout the terms of this agreement, the company will continue to assist employees to adjust to future change through timely communication of change and the provision of employee assistance programs and counselling services.

PN47

Now, we say that - we say just as an issue of contract law you can't change the policy without telling the employee in a reasonable time frame in any event, but I go further to that, Commissioner, and I say, with respect to the terms of the agreement, the commitment is that, to assist employees to adjust to future change through timely communication of change, so the company has given the commitment that, if change occurs, there's be timely communication. Now, timely communication, we submit, isn't a 12 year practice that changes the minute you're about the walk off at the end of your shift before you attend the funeral the next day, or after you attend the funeral and then come back. I mean, timely changes - there's no time to it but you have to be reasonable and - - -

PN48

THE COMMISSIONER: Well, I've got your point.

PN49

MR ENDACOTT: Yes. And so certainly we submit that that is an issue we seek the assistance of the Commission in attempting to be able to resolve, and we would think that, with a reasonable approach from the employer, it was one that could be readily resolved. The second issue, Commissioner, and the one that leave was granted, and the reason why we sought leave to amend the application, is one that has arisen, and certainly I was hoping to take the opportunity that it could be resolved with the assistance of the Commission today, rather than having to put down a separate notification, deals with the issue of Christmas beer and ham.

PN50

And I think this is the first Christmas issue I've dealt with in the mining industry, but used to deal with numerous when I worked in the hospitality industry, but if I can explain the circumstances to the Commission. The employees at the site have a specific Christmas arrangements, and I'd like to tender to the Commission a copy of an agreement that was reached on 29 November 1989.

PN51

THE COMMISSIONER: Do you object to the tendering of the document, Mr de Flamingh?

PN52

MR DE FLAMINGH: No, Commissioner, but we do reserve our rights to make comments about it.

PN53

THE COMMISSIONER: A document headed "Costain" - C-o-s-t-a-i-n - "Australia Limited Ravensworth Mine" become exhibit A1 in these proceedings.

EXHIBIT #AI DOCUMENT HEADED "COSTAIN AUSTRALIA LIMITED RAVENSWORTH MINE"

PN54

MR ENDACOTT: The documents tendered, Costains Australia Limited, it's called Ravensworth Mine. It is the same operation and the company - the mine had gone through a number of manifestations by the buying and selling of companies over the years, and so I note that, Commissioner, it is, in essence, the same operation. Commissioner, there was an agreement reached in 1989 that we say continues to have force and has had force during the period of the three certified agreements that have been on operation at the mine, and when the certified agreements have been negotiated - and we're not talking about one, we're talking about continually - it has been understood and we, in fact, made it clear that the company knew that this agreement was ongoing and continuous. So there's an arrangement that existed, continued, continues to have effect at the operation, that employees - - -

PN55

THE COMMISSIONER: So you say this provision of the beer and the ham on the gone has been provided since 1989 until 2001 without fail?

PN56

MR ENDACOTT: Without fail. And it's not being provided this year, and the company says that there is no requirement or obligation for it to do so, and will not do it. And we say that a dispute has arisen because this agreement has not been voided and is not voidable and, in fact, the company, since 1989, 23 November 1989, has said to employees, the issue of what happened has been settled by this document, and has honoured it until this year. Now, Commissioner, we seek your assistance to resolve the issue. But the issue goes somewhat further than that, and you'll note that I've mentioned union membership and treating employees less favourably.

PN57

The company has a system by which it provides to two classes of people a different Christmas gift, Christmas terms and conditions arrangements. And that is that employees who are non-union and that are not covered by the terms of the certified agreement this year are afforded a Christmas party for them and their wives to the value of $100 for them and their wife.

PN58

THE COMMISSIONER: Is this a first for this year?

PN59

MR ENDACOTT: Well, it's the first - - -

PN60

THE COMMISSIONER: Or is this also custom and practice?

PN61

MR ENDACOTT: Well, not for people that perform the same functions as our members, but - - -

PN62

THE COMMISSIONER: What happened last year with the non-agreement employees?

PN63

MR ENDACOTT: I'm not aware of what happened last year with the non-agreement employees. Last year - - -

PN64

THE COMMISSIONER: Well, Mr de Flamingh has no doubt made a note of that and he'll tell me.

PN65

MR DE FLAMINGH: Yes.

PN66

MR ENDACOTT: Last year they did provide it in accordance with this agreement, but this year we've been informed that CFMEU members and people covered by the terms of the agreement will be allocated $20 each and that that will be given to an organisation of their choice in which they can spend it. So I assume they'll give it to a catering company or a pub or something, and you'll get $20 to spend per head, if you prove that you attended, but employees that work side by side you, the exact same shifts, they are offered a $100 for them and their wife to attend a Christmas party.

PN67

THE COMMISSIONER: Each, or - - -

PN68

MR ENDACOTT: Yes. So it's $100 each, which is $200.

PN69

THE COMMISSIONER: Just let me take you back a step. What happened - I mean we're talking about the custom and practice about the beer and the ham. In previous years, and perhaps Mr Davey can help us with this, what's happened about payments for Christmas parties?

PN70

MR ENDACOTT: Well, basically you got the beer and a ham. That was it.

PN71

THE COMMISSIONER: So this is a new arrangement, the 20 and the 100 dollars?

PN72

MR ENDACOTT: Yes, that's true.

PN73

THE COMMISSIONER: To start this year.

PN74

MR ENDACOTT: I believe so. Okay. No, the staff had their party last year.

PN75

THE COMMISSIONER: And what were the arrangements - financial arrangements - for that? Just so we've got a point of comparison if there is one. You can take instructions.

PN76

MR ENDACOTT: I'm instructed it was the same deal. That is, the same deal for the staff: the $100 and a function at McCubbin. But the company can no doubt check what the arrangements are.

PN77

THE COMMISSIONER: Hang on - just before I get totally confused about the Christmas arrangements. Last year, staff got the $100 each for husband and wife. Employees under the agreement got $20.

PN78

MR ENDACOTT: No, last year they got the - sorry. With respect to the staff, Commissioner, and that was - I was answering the question only dealing with the staff - they had the same arrangements - the $100 and the function at McCubbin - $100 a head. The employees, which are the agreement employees, received the terms of the exhibit A1. That was the ham and the beer, yes. Now, we seek your assistance, Commissioner, certainly primarily in conciliation in an attempt to resolve the matter. Unless there's any further questions the Commission wishes to ask I'll leave it with my friend to respond.

PN79

THE COMMISSIONER: No, I think I'm fairly clear on what the problems are. Perhaps Mr de Flamingh can give me a thumbnail sketch now before we go into conciliation.

PN80

MR DE FLAMINGH: Thank you, Commissioner. Commissioner, if I can deal with the first issue first - the matter about the paid sick leave. The company's position is that the circumstances when employees are entitled to be paid sick leave are contained in the industrial instruments applying to the company, namely the certified agreement and the Coal Mining Industry Production and Engineering Consolidated Award. There is no provision in either of these instruments for payment of sick leave to attend the funerals of former employees.

PN81

Indeed, the EBA is very clear on the circumstances in which paid sick leave is available, and in respect of sick leave it states, amongst other things, that it is agreed that the purpose of sick leave is to cover team members when they are absent because of their illness or injury, and not to encourage team members to have extra time off or to attend to personal business. To the extent, Commissioner, that historically the company may have permitted employees on occasions to use paid sick leave to attend funerals of former employees, my instructions are that this was solely at the company's discretion.

PN82

There was no obligation to make such payments; that there is no express or written policy that could be said to apply in respect of these alleged arrangements; that at best there was an ad hoc practice at a time when the mine consisted of approximately 350 production and engineering employees and its operations were able to sustain people's absences. And further, that in the past many employees took other types of leave. On this occasion the company has sympathy, especially where employees have worked closely with the deceased employee, and the company has proposed the following options, and that is that annual leave be used subject to the existing annual leave quotas; that the employees make up time for time missed to attend the funeral - and that's the company's preferred position - and also that there be approved leave without pay, and that includes the option of employees taking time off to attend the funeral and then returning to work and getting paid for the hours worked.

PN83

Turning to some of the factual matters raised by Mr Endacott, I can advise the Commission that the employees were advised that these options were available to them by their team leaders prior to them taking their leave - or prior to the funerals, I should say. There was an issue as to how many employees sought to avail themselves of this, and I'm instructed approximately seven employees out of the production and engineering workforce of approximately 60. The employees, as I mentioned, were advised that the other options were available to them and that, to the extent there had been this past practice, that that was no longer the case.

PN84

In short, before we proceed to conciliation, Commissioner, I'd just like to say the company's view is that it is acting in a reasonable and appropriate manner, certainly well within its rights. It is not a matter in which the company is imposing an unreasonable or unfair burden on employees that may require the Commission's intervention in the company's decision. Indeed, the CFMEU is seeking relief beyond the Commission's own test case standards, the standards on bereavement leave which apply to the immediate family.

PN85

Dealing with the second issue of Christmas beer and hamper, the Commission would appreciate we've just been notified of this issue, but I can - before hopefully moving into conference - clarify a couple of matters in respect of that. Last year, all employees were given the option of attending a party or obtaining Christmas beer and ham, and employees were advised at that time that the practice of providing Christmas beer and ham would no longer continue, so in effect they were given 12 months' notice.

PN86

The company denies any allegation that they have treated union members differently. As has always been the case, the staff have had their own separate Christmas party. It is just an issue of whether or not they are staff or not. It is not an issue of whether or not the company - whether or not they are CFMEU members. They may or may not be CFMEU members. Indeed, the staff parties, I understand, are attended by a number of employees from both parts of the workforce, it's said.

PN87

THE COMMISSIONER: And when the workforce attend, do you pay for them?

PN88

MR DE FLAMINGH: Yes, Commissioner, we do. At this stage that is all we'd like to put on record. To the extent, Commissioner, there is an allegation that this is a practice which must continue indefinitely, the company does not accept that. Practices do not continue indefinitely. Circumstances do change, and to the extent that there is a change in the practice, the company is entitled to do that and has indeed given 12 months' notice of its intention to change that practice. I alluded, Commissioner, at the outset, that the company did have some jurisdictional issues.

PN89

We would like to place on the record we do not think the Commission has jurisdiction in any binding sense. Mr Endacott has indicated that it's not necessarily - at least in respect of the first issue in dispute, that being sick leave - it is not necessarily the change in policy but it's the process that is at issue. The company is more than prepared to participate in conciliation of this matter but does not consent to this matter being arbitrated, and on that basis I would - - -

PN90

THE COMMISSIONER: I would suggest to you that we will put aside, for the moment, the question of jurisdiction - - -

PN91

MR DE FLAMINGH: Yes, Commissioner.

PN92

THE COMMISSIONER: - - - for later if required to be raised, and we'll now adjourn into conference.

PN93

MR DE FLAMINGH: Thank you.

OFF THE RECORD [10.43pm]

RESUMED [1.45pm]

PN94

THE COMMISSIONER: We're resuming matter 5713 of 2002. Once again, extensive discussions have occurred between the parties and myself relating to the two matters, those being the taking of sick leave for the purpose of attending funerals of persons for whom bereavement leave would not be allowed under the agreement; and the second one being the company's refusal to continue supply of a Christmas ham and case of beer to employees of the mine.

PN95

In relation to the first matter, agreement has been reached, as I understand it, in these terms: that those employees who have submitted sick leave applications for recent funerals that fall within the parameters of the description I gave earlier will have those sick leave claims allowed and paid, but future sick leave claims for funerals of that ilk will not be accepted by the company. The company will publish to employees a memorandum setting out its position in relation to the use of sick leave and will provide details of alternative arrangements for persons who wish to take that form of bereavement leave. Is that correct?

PN96

MR DE FLAMINGH: I believe so.

PN97

MR ENDACOTT: Yes, Commissioner.

PN98

THE COMMISSIONER: That matter is settled. Now, in relation to the Christmas beer and ham on the bone, I have examined the history of the matter and I must say that there seems to have been a history of 13 or 14 years where these arrangements have been made. I note the company's statement that they did notify employees that the arrangement would cease last Christmas. I don't believe there is jurisdiction for the Commission to issue any orders in relation to provision of these goods to employees, but I would note my concern that the abolition of the entitlement unilaterally by the company has come at the same time as the company has seen fit to establish a principle of separate Christmas parties for those employees classified as staff and those employees who work under the certified agreement.

PN99

I believe it's not helpful to staff relations with the employer for certain persons to be separated in terms of having a party provided for them and their partners at a cost of approximately, I think, $100 per head, and the end result for those under the certified agreement to be that they will have the entitlement of the beer and ham removed and to be replaced by another entitlement which appears to be, to put it colloquially, $20 each on the bar at the local pub.

PN100

I would urge the company to reconsider its attitude in this and I would suggest to them, although I have no power in this area - it's only a suggestion - that the company should earnestly entertain my proposition that, for this year at least, employees under the certified agreement should receive an allowance - a bar allowance to replace the allowance of $20 - of $100 per head, but not for partners. That's the recommendation I do make to the company. I have no power to do anything more than that. This matter is now adjourned.

ADJOURNED INDEFINITELY [1.50pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AI DOCUMENT HEADED
x~x

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AI DOCUMENT HEADED
EXHIBIT #AI DOCUMENT HEADED
EXHIBIT #AI DOCUMENT HEADED PN100
EXHIBIT #AI DOCUMENT HEADED PN100