C2003/1841, Transcript of Proceedings [2003] AIRCTrans 2592 (23 June 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DRAKE

C2003/1841

CONSTRUCTION, MINING AND ENERGY UNION

and

RAVENSWORTH COAL MANAGEMENT PTY LIMITED

Notification pursuant to Section 99 of the Act
of a dispute re changes to overtime

SYDNEY

11.12 AM, TUESDAY, 10 JUNE 2003

PN1

THE SENIOR DEPUTY PRESIDENT: This is a report back, where are we up to?

PN2

MR ENDACOTT: Yes, your Honour, the appearances are the same as the last occasion from the union's side. I'll just give you a brief history, your Honour, this matter was last before the Commission on 23 May 2003 and before that was before the Commission on 1 May. There have been meetings on the 8th, the 15th and the 21st of May and certain matters reported back on the last occasion your Honour and there has been further meetings on the 27th of May, 2 June and 4 June and a final, not a final meeting but a further meeting on 6 June 2003 and that last meeting was attended by both Mr Farrar and myself.

PN3

There are a couple of things I can report. One is that the discussions have been progressing and it would appear that there's certainly an understanding in principle on almost all issues except for two. When I say an understanding in principle that is should the two issues be able to be overcome I think readily the parties would slide into an agreed position, that we would be able to take back to our members and seek them to be endorsed but the two issues are crucial to effective resolution of this matter.

PN4

I can explain it, they are related and it deals with the issues of core hours and access to the hours that are required to be worked under the staff contracts of employment and you will recall, your Honour, when this matter first arose it arose about the fair distribution of over time, the fair and equitable distribution over time in which there was a concern by the employees because of a separate over time roster that the open and audible system that had been in place for all employees still existed for the employees covered by the certified agreement but not covered for staff employees.

PN5

THE SENIOR DEPUTY PRESIDENT: So, Mr Endacott, this question is what are the core number of hours that need to be worked by the contract of the persons under contracts of employment so that it can be ascertained what are the hours being done in excess of those core hours so as to constitute over time for those employees?

PN6

MR ENDACOTT: Exactly, your Honour. Exactly that is the issue.

PN7

THE SENIOR DEPUTY PRESIDENT: So that there is a control from which you can figure out from which point each employees hours who is on a contract of employment constitutes overtime, that is time in excess of the hours they're contracted for so that that the equality between the two groups of employees can be figured out?

PN8

MR ENDACOTT: That's correct and when I say the two issues are related is what one was access to how many hours they've contracted for and the company said look we have an extreme difficulty with respect to that issue because peoples hours that they've contracted for should be kept to themselves and we wouldn't want any person auditing the system or reviewing it from the CFMEU being able to look at them.

PN9

Essentially we said look, we'll give you a position by which we don't need to look at the hours they've contracted for as long as we can agree the hours that everyone works off, doesn't matter how many you've contracted for, as long as we can work off the same base and we've proposed the indicative roster that the people work off because ultimately they're operators of heavy plant equipment, if they're maintenance areas, they're operators so there are 10 indicative or will be 10 indicative rosters that the company will be able to access generally and certainly they can have other rosters in consultation.

PN10

We're saying well we'll use the over time hours to be those in excess of the indicative rosters. The indicative rosters are set out in the agreement you've just certified your Honour but because without having it one way or the other, having access to the hours they've contracted for working off the indicative roster base, we can be assured no equity and unable to have an open system because I for example could contract to work one shift a week and the way the system operates is of the access to overtime, I get paid for that in my contract but when you start working out who gets allocated hours I'll be able to work tons of over time more and still have over time allocated to me in preference of someone else that hasn't worked anything in excess of their indicative roster.

PN11

We say that's an issue. The company can't have it both ways, can't have the contract hidden for a base number of hours and certainly we're saying well we don't need to see the contract as long as we have the same base and that's the major issue that's between the parties, so as I said two issues really. It's an either or option of the one issue.

PN12

THE SENIOR DEPUTY PRESIDENT: Last time we were here there was a discussion about appointing an independent person such as the pay clerk who would be aware of those hours. There was some issue as to whether the pay clerk actually knew those hours. Has that been investigated?

PN13

MR ENDACOTT: Well, the situation that arises is that in principle position has been agreed on the paymaster being the person responsible for it. There's also a position that the system would be able to be audited by - - -

PN14

THE SENIOR DEPUTY PRESIDENT: One person from each group.

PN15

MR ENDACOTT: Yes, which - - -

PN16

THE SENIOR DEPUTY PRESIDENT: And has there been an agreed or suggested person from the persons who are on staff contracts?

PN17

MR ENDACOTT: Yes, there has been, a Mr Tinkler would be the person?

PN18

THE SENIOR DEPUTY PRESIDENT: Is that you? Very foolish to step forward there I thought.

PN19

MR ENDACOTT: But that information wouldn't be available to Mr Hipwell about how many hours each staff person is allocated. From my understanding it would only be allocated to the pay master on the basis of extra hours of paid over time, not pre-paid over time built into the contract. So in that regard he might not be available - he wouldn't even have that specific information. I do note the issue and when we spoke about the fair distribution of over time and the company which was referred to as the proposal, Ravensworth Operations Narama Mine that was given to us I think in conciliation on 1 May before the Commission.

PN20

It spoke about over time hours, certainly one couldn't be expected at that time that over time hours didn't mean in fact over time in excess of ordinary hours or over time in excess of the roster. It meant sort of over time in excess of some sort of hidden specific arrangements that you hadn't already agreed with the company about how much over time you do. So I think the issue can be readily sorted as long as the company is able to take a pragmatic view about it because other than that there will be an unfair and a distorted allocation of over time between the two groups.

PN21

THE SENIOR DEPUTY PRESIDENT: All right, thank you. Mr Farrar?

PN22

MR FARRAR: Thank you, your Honour. I have with me today the same people who attended the previous hearings. I guess, your Honour, we say that yes, we have reached generally agreement in principle on most of the matters although there are some matters that are still outstanding although we believe we can resolve them. The issue of core hours or access to some of the details in the staff agreements does remain a source for some difficulties.

PN23

THE SENIOR DEPUTY PRESIDENT: Mr Farrar, could I just ask you, I seem to always be interrupting but I don't understand what the sensitivity is about the core hours, persons want to keep their contract details to themselves and maintain their privacy but unless that information is accompanied by information as to hours is accompanied by information as to salary I don't understand why it's such a sensitive issue. It's really meaningless information unless it's accompanied by salary and if salary is kept confidential why would it be so sensitive?

PN24

MR FARRAR: Your Honour, I guess in response to that we would say that the union has been on a bit of a fishing expedition and for what their motives are, I guess we're not sure at this point in time but it would appear that they wish to insert themselves into the arrangements between ourselves and persons on the staff agreements. One of the core issues that we maintain with the people on staff arrangements is that the arrangements are between themselves and ourselves and not available to others except for lawful purposes for which we both consent to provide those details to others.

PN25

THE SENIOR DEPUTY PRESIDENT: But I just put this to you, Mr Farrar and we'll go into conference I think as soon as you put on the record what you want to put too that most of the complaint about the inadequacy of the other - of the previously existing arrangement with Mr Hipwell was a perception by Mr Tinkler and others that that system was unfair, that there were, you know, acts of sabotage against them and outcomes that were unequal in allocation of work.

PN26

So in part in reaching for a transparent system arises out of unhappiness with the system that was pre-existing with Mr Hipwell. Perhaps I'll just leave it there. It seems to me though that we have to get to a point where there's transparency and some trust in both of the persons who are allocated as to confidentiality in that that confidentiality and trust will have to extend to the representatives of both groups; Mr Tinkler as well as Mr Hipwell, but we'll see. I promise not to interrupt you again.

PN27

MR FARRAR: Thank you, your Honour. I guess we say that the issue of what constitutes the application that was put before the Commission mainly related to the allocation of weekend over time and we've said through a number of discussions that we are prepared to discuss and make transparent and count for the purposes of the allocation of over time all hours that relate to the working of weekend over time shifts.

PN28

Now, the difficulty we have in detail with application of what Mr Endacott has submitted is the issue that remains outstanding is the fact that under the staff arrangements that we have in place there is an expectation of flexible time for which people are paid a salary. There is no core hours as such. There is some nominated indicative rosters but the expectation is that people will work flexibly to get the job done and we do pay additional payments when there is an expectation of people working consistently above those indicative rosters and we're quite prepared to be entertaining a system which collates the hours that relate to additional payments.

PN29

Now, even the CFMEU and CEPU members on site work additional hours beyond their normal rostered shifts for the purposes of toolbox talks or make up production and whilst we've had toolbox talks conducted in their normal shifts for the purposes of union meetings, there's paid union meetings on site, there's also change over.

PN30

THE SENIOR DEPUTY PRESIDENT: You don't have an anticipated sort of core number of hours such as 48, 50, you would think that would be the average, that you could use for that purpose.

PN31

MR FARRAR: Your Honour, the difficulty we have is that there's different employment arrangements that are in place and they all have an expectation of what is normal. The issue as we understood it, why we were here in the first place was the allocation of weekend over time and we're quite - - -

PN32

THE SENIOR DEPUTY PRESIDENT: But making sure that over time was fair. All right. So where do we go from here?

PN33

MR FARRAR: I would suspect if we go into conference, your Honour, we might be able to discuss some - - -

PN34

THE SENIOR DEPUTY PRESIDENT: I have some difficulty with that. I have to just do something else as well. We'll just go off the record for a moment.

NO FURTHER PROCEEDINGS RECORDED