C2001/6627, Transcript of Proceedings [2002] AIRCTrans 539 (20 February 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

C2001/6627

CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION

and

POWERCOAL PTY LIMITED

Application under section 170LW of the
Act for settlement of dispute re
alleged refusal to allow an employee
at Angus Place Colliery to take a
requested period of long service leave

SYDNEY

10.06 AM, TUESDAY, 5 FEBRUARY 2002

Adjourned sine die

PN1

THE COMMISSIONER: Good morning, I will take appearances, please.

PN2

MR W. McANDREW: If it please the Commission, I appear on behalf of the CFMEU and with me is MR G. OSBORNE, the Lodge Secretary of Angus Place Colliery.

PN3

MR S. GORDON: If it please the Commission, I appear on behalf of Powercoal Pty Limited in the capacity of manager for Human Resource Services and with me today is MR C. GILLARD, Manager of Business Services, Angus Place Colliery.

PN4

THE COMMISSIONER: Thank you. I would like both of you to put brief opening statements on the transcript to enlighten me as to what is the matter is about and then I think we will adjourn into conciliation.

PN5

MR D. SWEET: Commissioner, if I may, I appear for the Electrical Trades Union and I seek leave to intervene in this matter.

PN6

THE COMMISSIONER: Is intervention opposed?

PN7

MR GORDON: It is not opposed by the company, Commissioner.

PN8

MR McANDREW: It is not opposed by the CFMEU.

PN9

THE COMMISSIONER: Intervention is granted, Mr Sweet.

PN10

MR McANDREW: Briefly, Commissioner, the matter in dispute relates to the company's refusal to allow a member of our union, Mr Reg Scamp, a mechanical employee at Angus Place Colliery, to take a requested period of long service leave. Mr Scamp applied in July 2001 for 24 weeks long service leave and in fact he has had 22 years continuous service at Angus Place Colliery. The leave he has been given at this stage in the years on leave as we speak today has been seven weeks, that is all that has been granted by the company, and we are here before you today to seek to have the matter determined prior to Mr Scamp being required to return to work. I do further issues I would like to refer to but that is a brief overview of what the dispute is about between the parties at this stage.

PN11

THE COMMISSIONER: Could you give me the date at which Mr Scamp would have to return if the seven weeks was imposed?

PN12

MR McANDREW: He would be due to return on 15 February.

PN13

THE COMMISSIONER: Thank you. Mr Gordon.

PN14

MR GORDON: Thank you, Commissioner. This matter concerns a grievance raised by the CFMEU concerning their member Mr Scamp. However, management's decision to not grant an additional long service leave request consistent with its ability to do so under clause 36.3.1(2) of the Coal Mining Industry (Production and Engineering) Award. The award has an interrelationship with the certified agreement operating in place and where the agreement is silent the award prevails in that circumstance. If it pleases the Commission, I have an extract of the certified agreement and the award clause which I could hand up to the Commission for its reference, and to the parties. Commissioner, I don't necessarily seek to have this marked as an exhibit unless you believe it is appropriate, it is merely a reflection of the documentation that exists within the file at this time.

PN15

THE COMMISSIONER: To let it form part of the file I will mark the two documents together as being MFI 1.

MFI #1 EXTRACTS FROM CERTIFIED AGREEMENT AND AWARD CLAUSE

PN16

MR GORDON: Commissioner, MFI 1 is an extract of the Coal Mining Industry (Production and Engineering) Award in so far as the relevant section of the long service leave clause is concerned. I have only included clause 36.3 which deals with the issue of when long service leave may be taken and that becomes critical to the discussion this morning. Also on the attached page at 2.3 it identifies that matters not specifically dealt with in the agreement are covered by the following awards, and it references the Coal Mining Industry (Production and Engineering) Award.

PN17

THE COMMISSIONER: You appear to have handed me two copies of the same document.

PN18

MR GORDON: Sorry, the second page. I have attached the two pages together, I have given two copies to the Commission as they normally request to have two. The front page is the extract of the award clause and the second page is the relevant section of the enterprise agreement that draws the award into play.

PN19

To date, Commissioner, conferences between the parties at the local and district level have failed to resolve the matter. Those conferences have been taken place in good faith between the parties in an effort to try and reach a resolution. In brief, Mr Scamp's long service leave request is linked to prior requests for long service leave and annual leave that have already been approved. Mr Scamp has been on leave since 29 December 2001 and has leave approved until 4 April 2002, effectively a 14-week consecutive period made up of a combination of seven weeks long service leave and seven weeks of annual leave.

PN20

Subsequent leave requests by Mr Scamp have been lodged seeking an additional 21 weeks of leave, again made up of a combination of long service leave and annual leave, which would take him up to 23 July 2002 and I have a summary of that leave which I can hand up to the Commission for its information.

PN21

THE COMMISSIONER: Do you wish this one marked as an exhibit?

PN22

MR GORDON: I think it is appropriate that it is an exhibit, Commissioner.

PN23

THE COMMISSIONER: I will mark the document exhibit R1.

EXHIBIT #R1 SUMMARY OF MR SCAMP'S LEAVE

PN24

MR GORDON: Commissioner, on the first page is a summary of the leave applications that have been received and either approved or not approved and it identifies down at the bottom the total leave period, taking into consideration the interrelationship between long service leave and annual leave. Attached to those pages are the actual copies of the leave applications themselves. As can be seen from the summary, it is an issue where we really can't not deal with both the long service leave and annual leave requests. We need to look at both, we can't look at one in isolation of the other in this case.

PN25

With regard to the conferences that have been held on site, it is my understanding, Commissioner, that an alternative option has been put forward by the mine manager and that option has been rejected. This involved approval of a further six weeks annual leave to follow on from the existing approved leave period, subject to no one else on the same night shift weekend roster having leave booked for that period. This could be confirmed two weeks prior to the end of the current approved leave period. We saw that as an appropriate way to deal with that situation; however, that has not been taken up as a means of resolving it.

PN26

The extended long service leave period requested by Mr Scamp is well in excess of the mine's average long service leave approval over the last seven to eight years and if it's appropriate I can table documentation to reflect that, Commissioner. But in summary, the company submits that it has approved 14 consecutive weeks of leave for Mr Scamp consistent with his request, offered conditional approval of a further six weeks annual leave to coincide with the current approved leave period and been fair and reasonable in exercising its discretion not to approve a further 17 weeks long service leave request consistent with the employer's rights under clause 36.3(1)(ii).

PN27

Commissioner, the company submits that there's no justifiable basis for Mr Scamp contesting management's decision not to approve his extended leave request and we believe that the appropriate way to resolve this matter is consistent with the alternative proposals that have been put forward by management in regard to conditional approval of further leave and I note, Commissioner, your indication to move to private conference and we would have no objection to moving into conference under your chairmanship forthwith. Thank you.

PN28

THE COMMISSIONER: I'll just ask you a question. Mr Scamp's application for long service leave dated 30 July 2001, there's a notation at the end "rejected as per memo 10.09.2001". Am I going to be privy to that memo?

PN29

MR GORDON: I don't have copies but I can make available that for the Commission. I don't have copies for the parties but I can make it available to the Commission.

PN30

THE COMMISSIONER: My associate can arrange copies, that's no problem, but as it's referred to in the body of exhibit R1, I think it would be proper to form part of the record.

PN31

MR GORDON: Certainly.

PN32

THE COMMISSIONER: Well, at this point, we'll adjourn into conference.

OFF THE RECORD [10.18am]

RESUMES [11.30am]

PN33

THE COMMISSIONER: This matter has now resumed. During the adjournment, there's been a series of conferences between the parties together under my chairmanship, the parties separately and agreement appears now to have been reached subject to the parties confirming such on transcript. That agreement is most easily defined by reference to exhibit R1. The agreement in conference is that Mr Scamp will be granted the annual leave which he applied for, for the period 5 April to 26 April 2002. For the period from 27 April 2002 onwards, Mr Scamp will be granted a guaranteed two weeks long service leave of the 17 weeks he applied for.

PN34

At the conclusion of a four week annual leave period ending on 26 April 2002, Mr Scamp is to contact the mine management and he will be told at that time whether he can have further long service leave of five weeks to date from the end of the two weeks long service leave granted from 27 April 2002 and that process would continue in three blocks of possible five week absences with two weeks notification to the company. The company will accept leave applications from Mr Scamp as appropriate by facsimile.

PN35

There also appears to have been some problem with interpretation of the operation of the relevant clause of the award as to the quantum of long service leave which can be taken at any time and the company has undertaken to clarify the actual situation with the mine manager concerned. Now, I'd like the parties to affirm or otherwise the accuracy of my statement.

PN36

MR GORDON: If it pleases the Commission, we confirm that that is correct. I just draw the Commission's attention that the granting of the subsequent five week blocks of long service leave is subject to the management's discretion in regard to affecting the operation of the mine.

PN37

THE COMMISSIONER: That's my understanding also.

PN38

MR McANDREW: And from the union's point of view, Commissioner, we accept your interpretation of what has been offered by the company and we do see that it can resolve the issue as it relates to Mr Scamp.

PN39

THE COMMISSIONER: Thank you. Therefore this matter is concluded and we are adjourned.

ADJOURNED INDEFINITELY [11.35am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

MFI #1 EXTRACTS FROM CERTIFIED AGREEMENT AND AWARD CLAUSE PN16
EXHIBIT #R1 SUMMARY OF MR SCAMP'S LEAVE PN24