C2003/1831, Transcript of Proceedings [2003] AIRCTrans 1573 (29 April 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER ROBERTS

No C2003/1831

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

and

BULGA COAL MANAGEMENT PTY LIMITED

Notification pursuant
to section 99 of the Act
of an alleged dispute re
sick leave pay

SYDNEY

11.03 FRIDAY, 11 APRIL 2003

PN1

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

PN2

MR K. ENDACOTT: If it pleases the Commission, I appear for Construction, Forestry, Mining and Energy Union, Mining and Energy Division and with me at the bar table is a MR LLOYD HILL who is an official of the Operations CFMEU Lodge and further to Mr Hill's right is a MR R. YOUNG who is the person, the subject of the aspect of the dispute that deals with the issue of sick leave.

PN3

MR J. WHALE: May it please the Commission, I seek leave to appear for the respondent in these proceedings and I have with me MR M. CARRUCAN, the Mining Manager and MR N. WOOD, the superintendent of production.

PN4

THE COMMISSIONER: Is leave opposed, Mr Endacott?

PN5

MR ENDACOTT: It is opposed, Commissioner.

PN6

THE COMMISSIONER: Mr Whale can tell me why he should appear and then you can tell me why he shouldn't.

PN7
MR WHALE: Thank you, Commissioner. Commissioner, in relation to the application for leave to appear in these proceedings, I rely upon and adopt the submissions I made to this Commission as presently constituted in C No 2003/1022 which came before the Commission on 20 February. That case involved the CFMEU and Bulga Coal Management. At paragraph PN11 I put to the Commission that in relation to section 42(3)(c) the company cannot be adequately represented by other than counsel, solicitor or agent, as the company does not engage employees who are experienced advocates and who are across the issues before the Commission which may go to jurisdictional matters raised or other complex issues.

PN8
I put to the Commission that the company should not be put at a disadvantage relative to the opposition and that the union engages industrial officers to represent them on a regular basis in proceedings. At PN22 the Commissioner said that the Commission believed that section 42(3)(c) is in effect, a test as to whether there would be a disadvantage to a party and then granted me leave to appear in those proceedings. I adopt those submissions and put to the Commission that they equally apply in these proceedings. The company is in no different position in terms of representation than it was in those proceedings. The case before the Commission fits within the discretion of the Commission exercisable under section 42(3)(c) and is consistent with the Commission's reasoning in that earlier Bulga matter.

PN9

In relation to the subject matter of this dispute which section 42(3)(b) is relevant, a number of matters were linked, two of the matters that are actually before the Commission raise the jurisdiction of the Commission; the first in relation to whether the Commission can award a claim for payment of sick leave; the second issues deals with a claim for payment of a benefit under a certified agreement in relation to the taking of industrial action. We would put to the Commission that in relation to certainly the second matter, section 124(1) and (2) of the Act prohibits the Commission, 124(1) and 124(2) prohibit the Commission from dealing with such matters and If I could read 124(1) it says:

PN10

The Commission does not have power to deal with a claim for the making of any payment to employees ...(reads)... engage in industrial action.

PN11

THE COMMISSIONER: Just to pause you there, are you now running your case or still applying for leave to appear?

PN12

MR WHALE: No, I'm applying for leave in terms of the subject matter that is relevant to the Commission, which as I was saying, Commissioner, is raised by 42(3)(b), indeed, I seek leave ostensibly under 42(3)(c) but I sought to give you some brief overview of the subject matter which may fall under 42(3)(b) and which the Commission should have regard to.

PN13

THE COMMISSIONER: Thank you.

PN14

Mr Endacott?

PN15

MR ENDACOTT: Thank you, Commissioner. I just wish to respond with respect to this matter. In section 42 of the Act the legislators determined that the right for a party to be represented by an agent, solicitor or counsel would be restricted by the hurdle set out in that section, predominantly subsection (3). We submit that there is no automatic right and I know my friend agrees with that, we submit that the hurdle is high, in (b) it refers to special circumstances and I note the word, special. In this matter, Commissioner, we will be seeking the assistance in conciliation in an attempt to resolve the matter either on or off the record, so we don't believe that there is any specific jurisdictional questions that arise.

PN16

With respect to 124(1) and (2) referred to by my friends, those provisions aren't controversial, I think they are reasonably understandable on their face and that counsel or agent isn't required to distinguish or make submissions about the operation of that clause and what it means under certain circumstances. So we say that there are no special circumstances under 3(b) and I note that my friend indicates that substantially his application for leave is under 3(c). Now, 3(c) deals with an issue that a party cannot adequately be represented unless by counsel, solicitor or agent. We say that doesn't arise in this case because there will be no complex issues arise, we'll be seeking the assistance of the Commission in conciliation and it would be unusual that you would need counsel, solicitor or agent in the conciliatory process.

PN17

Secondly, I say this, that my friend says that the union regularly engages industrial officers, well, we do regularly engage counsel to appear for us where it is necessary but in these types of proceedings, the CFMEU appears with an employee in the case of myself who is not legally qualified and as a result, there is an automatic right for an employee to appear before this Commission and it isn't a situation if it is a test to be included, where the employee has some form of legal qualifications that would be appropriate.

PN18

The third point I raise, Commissioner, Bulga Coal Management is ultimately owned by Exstrata which is a multi-billion dollar mining company in a lay - and in essence their submission is in a lay jurisdiction a multi-billion dollar mining company with numerous employees that would be capable of appearing in this Commission needs to be represented by an agent. I can understand if it was a smaller employer that didn't have the facilities and certainly on that basis we oppose leave. If the Commission pleases.

PN19

THE COMMISSIONER: Thank you. Mr Whale, are you legally qualified?

PN20

MR WHALE: No, Commissioner, I'm not.

PN21

THE COMMISSIONER: Thank you. Having clarified that point with Mr Whale I believe the advocates are evenly matched. There is a history in the matters effecting Bulga Coal and Mr Whale has been granted leave to appear. I believe it is by leave of the Commission that it is largely up to the party, in my view, to decide how it should be adequately represented so as to protect its interest and on the basis of the discretion granted to me in section 42(3)(c) of the Act I grant leave to Mr Whale to appear.

PN22

MR WHALE: Thank you, Commissioner.

PN23

THE COMMISSIONER: We now come to the substance of the case.

PN24

MR ENDACOTT: Thank you, Commissioner. This matter involves I believe two issues, even though I've forgotten to bring a copy of the notification I made, which involves leave and the deduction that occurred for - thank you. The deduction and the second point being the deductions of moneys from employee wages in breach of the certified agreement when a meeting of the employees attended did not go longer than the period permitted by the agreement for the deduction not to occur. I'll explain that in more detail.

PN25

THE COMMISSIONER: You might hand up a copy of the certified agreement or the provisions, if you could.

PN26

MR ENDACOTT: Yes, I was intending to do that, Commissioner.

PN27

THE COMMISSIONER: Yes, I was intending to do that, Commissioner.

PN28

MR ENDACOTT: Commissioner, the terms and conditions of employment are regulated by a division three certified agreement under the Workplace Relations Act. The agreement came into effect on 6 June 2001 and remains in force until 6 June 2003. The document I have provided isn't the total agreement in that there was an amendment to the agreement by consent, but that amendment is unrelated to these issues, Commissioner.

PN29

Commissioner, I'll firstly draw your attention to the areas of the certified agreement that are related to the sick leave issue. I'll just spend some time detailing that matter. So originally I take the Commission to clause 4.1.8. I do no more than just note that "award" means the Coal Mining Industry Production Engineering Award 1997 as varied from time to time.

PN30

I then draw the Commission to clause 5.3 of the agreement which is on page 4. It just basically - and I'll read that provision:

PN31

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

PN32

Nothing controversial about that. It's a provision that normally occurs. Might not be in that same format but basically says it's read in conjunction with the award. I then draw the Commission to the sick leave clause which is clause 16 and I'll spend some time just outlining the application of this clause. 16.1 basically indicates how many sick leave days are accrued. 16.2 says:

PN33

For each day of paid sick leave the employee will have one day deducted from the employees sick leave accrual.

PN34

16.3 says:

PN35

Sick leave claims must be completed and approved before payment. The late claims will only be paid in the following pay.

PN36

So basically it means if you take a day's sick leave you've actually got to claim payment for it to be made. If you don't claim the payment then it's not to be made.

PN37

THE COMMISSIONER: I worked that out.

PN38

MR ENDACOTT: Yes. Yes, it's reasonable that your on that point, Commissioner. 16.4 talks about resignations. 16.5 indicates the process the employees is to follow when unavailable and it says:

PN39

The employee shall inform the employer prior to the commencement of the shift of the inability to attend for duty and state the nature of the illness or injury and the estimated duration of the absence or shall inform the employer of the name of the person requiring care and their relationship to the employee, the reasons for taking such leave and the estimated length.

PN40

We say 16.5 sets out the obligation on behalf of the employee, 16.6 sets out the obligation with respect to payment and I make that difference, it says:

PN41

If the employee does not notify the employer within twenty four hours of the commencement of the absence sick leave will not be paid unless there is a good reason why he/she could not notify the employer.

PN42

So there's an obligation and then there's an obligation that if it's not met payment is not received and then it goes on:

PN43

Sick leave claims immediately before and/or after public holidays and/or annual leave must be accompanied by a medical certificate.

PN44

Then it goes down, sets out some other grounds on which sick leave, 16.8, 16.9 where sick leave is not paid, obviously if you take sick leave during a strike the onus is greater to prove upon you that it's not related to the strike and in 16.9 you can't claim a day by which you're entitled to workers comp. So we say those issues are essentially related to this matter.

PN45

Now to go through the circumstances, Commissioner, a Mr Young who is at the bar table with me today on 30 and 31 January was absent from work because of illness. In essence prior to the commencement of the shifts he informed the company that he had a headache and wouldn't be available for that day so prior to the 30th he informed them of that and prior to the 31st he informed them of that as well.

PN46

I'm instructed that Mr Young attended a doctor and got a doctor's certificate for his absence and the doctor's certificate noted that he was unfit and that he had a headache. Now I do not have a copy of the certificate because it has been supplied to the company but I don't think there is a dispute about a certificate being provided. The company indicated that the doctor's certificate wasn't sufficient, they needed one with a great amount of detail provided about the nature of the illness.

PN47

Mr Young went back to his doctor and explained the situation and his doctor said, well I decide what I put on my doctor's certificates, not you or your company, in any event he had been informed by the AMA that it wasn't necessary for them to disclose when they filled the doctor's certificate the nature of the illness, so he provided an amended certificate saying he was unfit for work due to medical condition and Mr Young provided the certificate saying he was unfit because of a medical condition over the same dates.

PN48

Now the company has refused to accept these certificates, basically saying that they just don't believe he was sick. Now we've asked the company to establish, to inform us why that the assertion of Mr Young that he was sick is not accepted and why the certificate is not accepted and they've indicated they just don't believe it. It would assume the company speculates that Mr Young took days off not sick and that speculation's gone in the form of an allegation and now it's gone to the stage of assumed fact.

PN49

I don't have a copy of this decision but I think it's reasonably well accepted that a medical certificate must stand as proof of illness unless evidence to the contrary was adduced. That means if someone's got a certificate - - -

PN50

THE COMMISSIONER: Is that coming from somewhere or is that just your view?

PN51

MR ENDACOTT: Well I say it's a generally held view but there is a decision on that which I've got reported which is Fremantle Port Authority v MWU Western Australia 1978 but I actually don't have a copy of that decision and we're only in conciliation Commissioner, I just assert it as a general principle but I think it's a reasonable general principle, someone has got a certificate and they say, I was sick, I mean if the boss says, I saw you playing rugby, you say, well that's evidence contrary to it and I'm not going to accept it but you would need some something greater than speculation to support it.

PN52

THE COMMISSIONER: You say the certificate stands unless contradicted by other events or facts.

PN53

MR ENDACOTT: Yes, that's our position.

PN54

THE COMMISSIONER: Now Mr Young had this headache for two days, did he?

PN55

MR ENDACOTT: Yes he did.

PN56

THE COMMISSIONER: Did the doctor treat him?

PN57

MR ENDACOTT: I am informed that the doctor, he took Panadeine Forte for it which is a prescribed medication.

PN58

THE COMMISSIONER: So at the attendance at the doctor's the doctor prescribed a prescription drug to treat him.

PN59

MR ENDACOTT: Well I asked the member what was the - - -

PN60

THE COMMISSIONER: Well he's not very far away from you so perhaps you can ask him now.

PN61

MR ENDACOTT: Yes and he said that he takes Panadeine Forte for it.

PN62

THE COMMISSIONER: Well you can ask him the question I've just asked.

PN63

MR ENDACOTT: I'm instructed that our member attended the doctor and Panadeine Forte wasn't prescribed at the time. The doctor asked him what he was taking for the medication which I think was Espaligen and he informed him to continue take that to regulate the headache.

PN64

THE COMMISSIONER: So it was a migraine was it?

PN65

MR ENDACOTT: A migraine headache, yes.

PN66

THE COMMISSIONER: What does Mr Young do at the moment? What is his job?

PN67

MR ENDACOTT: He is a plant operator.

PN68

THE COMMISSIONER: It is relevant that question, which will become apparent later.

PN69

MR ENDACOTT: Yes. So we say this is quite simple. Mr Young had fulfilled his requirements under the terms of the certified agreement, even those set out in 16.5. Even though for non-payment the testing 16.6 is the only one that is appropriate. Now, I say to this Commission if the member wasn't sick then he is not entitled to be paid. But you would need more than just to say, we don't believe you were not sick and we don't accept the doctor's certificate, to deny that payment.

PN70

The award, Commissioner, at 30.4 - which is the industry award - says:

PN71

The employee must prove to the employer's satisfaction the absence from work was caused by illness or injury. If the proof is disputed it will be dealt with in accordance with clause 11 procedure for avoiding disputes of this award.

PN72

THE COMMISSIONER: And that has happened?

PN73

MR ENDACOTT: Well, Mr Young put the matter in dispute in writing. A notice of dispute. I understand it was discussed between the lodge and the union on 12 February and obviously we are now before the Commission in an attempt to resolve the matter. We would seek your assistance in conciliation in an attempt to resolve that matter. Now, the next issue is somewhat of a - - -

PN74

THE COMMISSIONER: Well, I might treat these sequentially and allow Mr Whale to respond while the first matter is fresh in his mind and you can move on to your second matter latter.

PN75

MR ENDACOTT: Yes, Commissioner.

PN76

MR WHALE: Thank you, Commissioner. Let it not be thought by this Commission that the company does not accept doctors' certificates as satisfactory proof of illness; as a general rule, Commissioner, the company does. The company has been subjected to a series of events which have brought to the company's attention that if the company does not challenge employees that it does not believe are genuinely ill that the company cannot rely upon the failure to challenge in the event that the company, at some future date, seeks to use the employee's attendance at work as a criteria to establish whether one employee should be preferred over another in retention for employment.

PN77

Indeed the recommendation of Commissioner Bacon of this Commission on 27 November 2002 - the print is print 925131, C number 2002/5125 - that case, Commissioner, involved the employees testing the company's decision to retrench employees out of seniority. In the course of that case the company was relying upon a number of factors to distinguish employees in terms of their effect upon the operation, and sought to rely upon absenteeism as one of the criteria.

PN78

It would not be unkind to say that Commissioner Bacon gave the company a serving. The serving was in the form that if the company did not challenge and did not refuse to pay claims for sick leave which it did not believe were genuine, then the company had a slight problem relying upon that failure to distinguish which employees should or shouldn't be retrenched.

PN79

In the course of those proceedings the Commissioner had purpose to consider the company's absenteeism policy which defined, among other things, unacceptable absenteeism. Unacceptable absenteeism dealt with a number of matters, but it does say that unacceptable absenteeism means an unacceptable pattern of absence, eg, an absence before or after an employee's rostered days off, a weekend, or a statutory holiday.

PN80

The company, Commissioner, in these proceedings is confronted with an employee who has a well-established pattern of absenteeism. In fact in the past 12 months there are four occasions where this employee, Mr Young, has taken two days of sick leave before and after rostered days off. Four occasions in the past 12 months he has taken two days of sick leave which joined with those rostered days off, Commissioner, gives him a week off work. In the past two years there are ten of these occasions where this employee has taken two days of sick leave before and after rostered days off which have given him a week of absence from work.

PN81

THE COMMISSIONER: Was that the case on 30 and 31 January?

PN82

MR WHALE: Yes, it was. And, Commissioner, the company's position in relation to those absences, if one has regard to the reason for those absences, they are the types of absences that are the self-reportables, "I've got a headache", "I've got flu", "I've got gastric". They are the sorts of things, the reasons for an illness, that a doctor, Commissioner, takes on face value. And unless the doctor then orders a series of other tests the doctor is substantially relying upon the patient's statements of what the symptoms are in forming a view as to the diagnosis.

PN83

Now, not only is Mr Young an employee who seems to fall sick before and after extended periods of rostered days off which give him weeks of time off work, but of the absences that he does have, Commissioner, there seems to be an unfortunate pattern to those absences.

PN84

They are that in the past five years he has had 58 days of sick leave of which two are currently unpaid to the question. Of that 58, 44 occur on night shift, 3 on afternoon shift and 9 on day shift. Since he commenced on the seven day roster which occurred in October 1999 he has had 41 sick days off and of them 41 of those days were on the night shift and 5 were on the day shift.

PN85

So we find it beyond the pale, Commissioner, indeed beyond coincidence that this gentleman's pattern of absenteeism and the preponderance of shifts that he misses has a clear pattern in it which brings us to the circumstances surrounding the absence on the 30th and 31st. The company, what is not in dispute here is those parts of the certified agreement that Mr Endacott refers to in terms of the procedure that has been followed by Mr Young.

PN86

What is in dispute here, Commissioner, is that the company simply does not believe that he was ill. The production of the first doctor's certificate which quite simply says, headache, is one of the type that is simply as I indicated before a self reportable and a doctor unless he orders, and he didn't order further tests to ascertain whether indeed there was some real illness, the doctor's simply replying upon that person's statements and the company said that unless it received further proof, further elaboration upon that certificate the company was not satisfied.

PN87

The second certificate provided says, medical condition, adds nothing to the context in which the company finds itself to ascertain whether this person indeed does have a medical problem or not and certainly it's our view Commissioner that the two are almost inconsistent. We would have expected the doctor in response to the first one to have elaborated upon the nature of the headache rather than go to a more generic description which in our view is not satisfying the obligations under the award in relation to notifying the cause of the illness.

PN88

THE COMMISSIONER: What's Mr Young do though if his doctor refuses to do other than what he's done? Perhaps I'll move on to another question which links to it. There's been a long debate going back many many years as to whether illnesses should be listed. People go to doctors, I'm sure none of us have, but people go to doctors for things which it would be the last thing in the world they would want to have listed on their medical certificate, I would like your comment on that as well.

PN89

MR WHALE: There are many employees, perhaps my friends to the left can elaborate on them but there are many employees who approach their supervisor or their superintendent or their manager and say quite confidentially, I have a problem, I'm not prepared to let the world know but I'm prepared to let you know so you can be satisfied that I do have a problem and ranging from mental illness to employees taking very strong drugs, a variety of things, and we would say that one can't legislate commonsense but indeed the majority of employees we would say would access the company's normal means of communication to address those sorts of issues.

PN90

Indeed the company has had no complaint from an employee with any long term problem that the company has refused to consider any particular situation they may have.

PN91

THE COMMISSIONER: I accept what you're saying in terms of the theory of it about pattern, while not applying that necessarily to Mr Young but I do have some problem with the privacy issues of medical certificates, so I just flag that to you. You obviously have a contrary view.

PN92

MR WHALE: It is a difficult situation and perhaps it's one that we can explore in conciliation which is our intention as well in these proceedings, Commissioner.

PN93

THE COMMISSIONER: I mean to cut to the chase, it's certainly not Mr Young's problem but if the problem was recurring genital herpes for example I don't think you would even whisper it to your supervisor, would you.

PN94

MR WHALE: Well if in fact it affects your ability to perform your work I would suggest Commissioner that you do and Mr Endacott has indicated in response to a question from you as to whether the doctor in question on this occasion had prescribed anything in relation to headache to which the answer is no, but he did indicated that he has been on Aspalgin for some period of time.

PN95

Now without conferring with Mr Carrucan my understanding of the company's drug and alcohol policy requires that that be a declared drug as it may or may not affect - - -

PN96

THE COMMISSIONER: Which is the very reason why I asked what he did at the mine because I think it is too.

PN97

MR WHALE: He was ostensibly a truck operator as I understand it, Commissioner working 12 hour shifts.

PN98

THE COMMISSIONER: I think if we look at a packet of Aspalgin we would see certain warnings on it.

PN99

MR WHALE: Yes, now indeed if he hasn't declared he's a user of that drug he would be in breach of the company's policy and I would think alarm bells would probably be ringing from this side of the table in relation to that.

PN100

THE COMMISSIONER: Well do you think at this stage conciliation might be wise whilst you reserve your rights as to jurisdiction and the rest of it. I think we know what it's about, don't we, both sides by now.

PN101

MR WHALE: I believe we do, Commissioner.

PN102

MR ENDACOTT: Yes, there are a couple of things I did want to explain to you.

PN103

THE COMMISSIONER: By all means, I won't stop you.

PN104

MR ENDACOTT: Well the agreement provides the employee is to disclose the nature of the illness which he did as a headache, it doesn't require the doctor has to detail the nature of the illness and in any event - - -

PN105

THE COMMISSIONER: Where's that bit?

PN106

MR ENDACOTT: 16.5 says - - -

PN107

THE COMMISSIONER: He does have to state the nature of the illness.

PN108

MR ENDACOTT: Yes, the employee does, state the nature of the illness before attending for work, and he rang up each day and said he had a headache, well that for Mr Young who's note a doctor that's the nature of the illness. It doesn't say the employee has, in fact a doctor's certificate doesn't have provided under the agreement unless it accompanies a public holiday or an annual, that doesn't matter, he provided that and there is no issue about that.

PN109

The other thing I wanted to mention is about the issue of every day coincides with ten days when he's taken two off, my friend's forgot to mention employees are working 12 hour shifts so they do a two and a three.

PN110

MR WHALE: Could I just elaborate to assist, what I meant to actually say to the Commission was that the days off coincide with Thursdays and Fridays, night shift Thursdays and Fridays on each of those occasions that I've referenced.

PN111

MR ENDACOTT: So it's not hard for someone to take two days off and end up with a week off because basically because of the way the roster works the vast majority of days are going to coincide with some other day off. We say that, we say that if the employer turned up with some sort of factual basis on which they could conclude that he wasn't sick we would be very sympathetic to that as a union but a speculative basis we're not sympathetic to and certainly payment should be made. Do you want me to move on to the next issue.

PN112

THE COMMISSIONER: I think that might be the most convenient way of doing it, then we'll move to conciliation on both.

PN113

MR ENDACOTT: I will take you to the next issue Commissioner and really I would like to draw the Commissioner's attention to - - -

PN114

THE COMMISSIONER: Briefly.

PN115

MR ENDACOTT: Very briefly because I think the point in dispute is quite narrow in this regard. I take the Commission to clause 9, Rates of pay. It's on page 6, Commissioner, and if you go down to 9.1 and you go to the end of 9.1, just above 9.2 it says:

PN116

Unless agreed by the employer the 1999 Bulga EA additional payment will not be paid on days where an employee is.

PN117

I go down there and it says:

PN118

Not at work for all or part of the day as a result of any form of industrial action except where there is a stopwork meeting of one hour or less in which case payment shall be on a pro rata basis

PN119

So it means the payment is about $400 a day as a rough estimate. It doesn't really matter what quantities but it is about $400.

PN120

MR WHALE: With respect, it's $400 a week.

PN121

MR ENDACOTT: I apologise, a week.

PN122

THE COMMISSIONER: I thought I was in the wrong job for a moment.

PN123

MR WHALE: We all thought we were.

PN124

MR ENDACOTT: With respect, it's a week.

PN125

THE COMMISSIONER: I was adding it up as an annual figure.

PN126

MR ENDACOTT: The annual figure is at the top, it's $20,800. So what it means is, if you have a stopwork meeting and it goes for more than an hour you lose the whole payment. Now, where the employees, historically, have had meetings, they have a stopwork meeting that goes for less than an hour so they don't get paid for the time that they have the meeting which is not permitted under Section 124 that my friend referred to.

PN127

On the day in question which was 8 October the employees have a stopwork meeting as they'd always applied it under this agreement for less than an hour and to be sure they always had the meeting for 50 minutes. This has never been a problem in the past. They didn't get paid for the meeting obviously, but they didn't lose the entire BIAT payment.

PN128

THE COMMISSIONER: Can I ask a question. I like to get these things clear in my own mind. If it's less than an hour they don't get paid for the time and if they are on a 12 hour shift they would get 11/12th of the bonus.

PN129

MR ENDACOTT: On my understanding that's how it reads, yes. But if it goes for more than an hour they don't get paid the BIAT payment at all.

PN130

THE COMMISSIONER: I'm clear on that.

PN131

MR ENDACOTT: So the employees had the meeting where they had it in the past, in the method that always applied in the past, it hadn't been an issue, they had lost the 1/12th for example. On this day the meeting went for 50 minutes and the company paid all of the people in the workshop in the prep plant for having a meeting less than an hour but didn't pay any of the plant operators because they said when they looked at the records between the time the equipment stopped and started it was more than an hour, therefore, the meeting went for more than an hour and therefore you are not entitled to any payment at all.

PN132

Now, this is the first time it had ever been applied that way and it's the first time that the company had ever indicated that was the way it was to be applied, than it had been applied previously and we say the meeting on the day went for less than an hour and as a result - - -

PN133

THE COMMISSIONER: When do you say the hour starts and finishes?

PN134

MR ENDACOTT: From the time the meeting starts and finishes and I say that not just because it favours our interpretation, I say that because that's the way it has always been applied and I say that for example there are other references to times in the agreement, things like crib time and crib time also stops from the time you enter the crib room and the time you leave the crib room.

PN135

So we would say that our interpretation up until 8 October was not controversial so we say that issue is a simple issue in that the parties need to reach some sort of understanding on what is the meeting for the purposes of the payment and obviously for assistance in conciliation to sort that out.

PN136

THE COMMISSIONER: How do the basic work hour work, when do they start? When are you considered to be at work and on the payroll?

PN137

HER HONOUR: Exactly the same approach. The time starts and finishes at the muster area.

PN138

THE COMMISSIONER: So there might be a time lag between that and actually striking a blow.

PN139

MR ENDACOTT: Yes, that would be correct. That's the way it applies to crib and it's our understanding that that's the way it applies for start and finish. I do note that I think the agreement does say the start and finish time is the muster area. Does it say that?

PN140

MR WHALE: Yes.

PN141

MR ENDACOTT: We might go into conciliation. I don't know what clause it is.

PN142

THE COMMISSIONER: I am just trying to fix the parameters in my mind. I will hear from Mr Whale now. I know what you are saying.

PN143

MR WHALE: Thank you, Commissioner. It is a simple case. The employees in question cease work at various times and indeed that's reflected in the way in which the company has treated employees. I can confirm the company has paid maintenance employees, the companies paid the coaling plant employees, the company paid the dragline employees as well. The company has not paid the balance, in fact I think the company has also paid the shotfirers as well.

PN144

THE COMMISSIONER: It might be a shorter list who you haven't paid.

PN145

MR WHALE: Basically employees engaged in appreciative operations, Commissioner. Those employees generally ceased work on or about 9.35 am on that day and the employees did not recommence work for some substantial period of time after that. Indeed, the employees in appreciative operations lost an hour and 21 minutes, coaling crew members lost an hour and 38 minutes.

PN146

THE COMMISSIONER: Did any of the people who are paid go over time?

PN147

MR WHALE: Well, it becomes a judgment, In our view the company decided to exercise - we say this is a matter of discretion - decided to exercise its discretion in relation to the other employees that I have just referred to in the basis that it would appear that a minimum period was lost but perhaps I do go to the exercise of discretion and if I do take you to 9.1 of the certified agreement and read exactly the same as Mr Endacott but I just might read a little bit beyond that:

PN148

Unless agreed to by the employer the 1999 ...(reads)... or not available or able to perform the full range of duties because of any form of industrial action or not prepared to perform the full range of duties because of any form of industrial action

PN149

Now, whilst the unions knew about this issue, if the meeting is less than one hour it doesn't matter how much time is lost outside of that meeting in terms of disruption to operation and lost time, the company has a different view, Commissioner, in that the employees in question were not available to perform the full range of duties. Notwithstanding the stopwork meeting the employees were not available or able to perform the full range of duties as a consequence of their stopping work in the coaling and ..... operations on or about 9.35 am.

PN150

We think this is a very straightforward case. Under that clause, Commissioner, they are not entitled to payment. Now, whether the company decides to exercise its discretion in respect of some employees then that is not a matter the subject of this certified agreement and, indeed, the company has exercised its discretion in relation to some employees perhaps who are marginal

PN151

THE COMMISSIONER: Can I ask you in relation to the three dot points that appear here in clause 9, rates of pay. Is there any substantive difference between the second sentence? What is the difference between not available and not prepared?

PN152

MR WHALE: Commissioner, I can safely say that I didn't draft the provision. Commissioner, again, our view is that the employees in question and not entitled to payment for the reasons of the total of lost time, notwithstanding the length of the meeting concerned. We think that is one of the elements of this issue. The length of the meeting is one of the elements of this issue. The total lost time, in our view, Commissioner, far exceeds what we regard as reasonable i the circumstances. That is all we have to say on the matter, Commissioner.

PN153

THE COMMISSIONER: You flagged jurisdiction objection before, do you have a jurisdictional objection to both parts of the application, even though you are not pressing it at this time, I just want to know?

PN154

MR WHALE: We reserved our right, Commissioner, to argue that, I mean, quite clearly, we think section 124(1) and (2) of the Act is a prohibition quite clearly on this issue, in relation to the sick leave one, the sick leave one is a claim for payment.

PN155

THE COMMISSIONER: I think I'm clear on what the problem is, so we shall adjourn into conference.

SHORT ADJOURNMENT [11.51am]

NO FURTHER PROCEEDINGS RECORDED