AG2003/234, Transcript of Proceedings [2003] AIRCTrans 3033 (16 July 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 2, 16 St George's Tce, PERTH WA 6000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N WT0538
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

AG2003/234

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application by Sir Samuel Mines NL and
Another for certification of the Sir
Samuel Mines NL 170LK Agreement 2003

PERTH

9.00 AM, WEDNESDAY, 2 JULY 2003

PN1

MS K. R. TAYLOR: I am acting on behalf of agent for Sir Samuel Mines.

PN2

THE SENIOR DEPUTY PRESIDENT: Acting on behalf of?

PN3

MS TAYLOR: Sir Samuel Mines NL.

PN4

THE SENIOR DEPUTY PRESIDENT: Yes. Are you appearing, Mr Miller?

PN5

MS TAYLOR: Mr Miller won't be appearing this morning, he is just joining me, thank you.

PN6

THE SENIOR DEPUTY PRESIDENT: Yes, all right. All right, well tell me all about it, Ms Taylor.

PN7

MS TAYLOR: Okay, Senior Deputy President, may it please the Commission, we are here today to seek certification of the Sir Samuel Mines NL 170LK Agreement 2003. We are seeking certification of this agreement based on the following grounds. The application has been made under Division 2 of Part VIB of the Act. Sir Samuel Mines NL is a constitutional corporation with ACN number 009 173 906. The agreement is about matters pertaining to the employment relationship. All employees who are to be covered by the agreement were given at least 14 days notice of the company's intent to make the agreement and after that time, a majority of employees whose employment will be subject to the agreement, did cast a valid vote to make the agreement.

PN8

THE SENIOR DEPUTY PRESIDENT: All of the employees have?

PN9

MS TAYLOR: A majority, sir. They were the majority of the employees.

PN10

THE SENIOR DEPUTY PRESIDENT: What was the numbers?

PN11

MS TAYLOR: The numbers were 29 yes, 9 against and 1 invalid. The agreement and the - - -

PN12

THE SENIOR DEPUTY PRESIDENT: Did everybody get a vote?

PN13

MS TAYLOR: I beg your pardon?

PN14

THE SENIOR DEPUTY PRESIDENT: Did everybody get a vote?

PN15

MS TAYLOR: Yes. All employees who are to be covered by the agreement and agreement packs were sent out to all employees with a letter of the intent to make the agreement, a copy of the agreement and also the ballot paper to be done by secret ballot.

PN16

THE SENIOR DEPUTY PRESIDENT: But the stat dec says that there are 48 employees. You just gave me numbers for 39.

PN17

MS TAYLOR: Yes. Some of the employment - the cut off date for employees to return their votes to, it was to John Spurling at the WAIC who was counting the votes, was 30 May, and some of the employees, their votes came in after that date so they were not counted.

PN18

THE SENIOR DEPUTY PRESIDENT: Oh, right.

PN19

MS TAYLOR: So that makes up for the - - -

PN20

THE SENIOR DEPUTY PRESIDENT: But everybody got a vote?

PN21

MS TAYLOR: Everybody got a vote, yes, that is correct.

PN22

THE SENIOR DEPUTY PRESIDENT: Yes, all right.

PN23

MS TAYLOR: Their rates of pay within the agreement all pass the no disadvantage test, for the purpose of payment and the - - -

PN24

THE SENIOR DEPUTY PRESIDENT: Well, just tell me a bit about that. The award that you have used as the benchmark is a State award, is it?

PN25

MS TAYLOR: Yes, that is correct.

PN26

THE SENIOR DEPUTY PRESIDENT: And is there no Federal award which operates in this area?

PN27

MS TAYLOR: The award best that would cover all aspects of the employment is the actual State Nickel Mining and Processing Award, so we use that award to best cover - - -

PN28

THE SENIOR DEPUTY PRESIDENT: I appreciate that but is there a Federal award operating - - -

PN29

MS TAYLOR: To my knowledge, no.

PN30

THE SENIOR DEPUTY PRESIDENT: No. And the annualised salaries, that is not the same as in the award, is it?

PN31

MS TAYLOR: The annualised salaries, no. The award pays a weekly wage. I have an example of one of the classifications, that of maintenance technician just to give me some figures.

PN32

THE SENIOR DEPUTY PRESIDENT: Perhaps you could pass that up to me.

PN33

MS TAYLOR: Certainly. These figures are for the process operator level 9 which - - -

PN34

THE SENIOR DEPUTY PRESIDENT: I will mark this document.

EXHIBIT #1 EXAMPLE OF SALARY CLASSIFICATION

PN35

THE SENIOR DEPUTY PRESIDENT: Yes, sorry, go on.

PN36

MS TAYLOR: The figures in there show the level 9 which is the highest process operator level under the award which has a weekly wage of $473.10. That is also inclusive of the 2003 safety net adjustment, we have factored that amount in. In terms of the rate per week under the maintenance technician that are paid as per the agreement, the salary is $65,000 per annum; is a minimum salary that will be paid and that based down to a weekly wage is $1,250.

PN37

From the comparison calculated that we have used, it shows that the agreement rates clearly pass those of the award rates. You will find on the second page annualised salaries using those weekly rates at the top. There is a 52-week award annual salary and a 52-week agreement annual salary excluding superannuation. You will see that they are quite a dramatic difference in rates paid there.

PN38

THE SENIOR DEPUTY PRESIDENT: But you have got the annual salary, excluding super?

PN39

MS TAYLOR: Yes.

PN40

THE SENIOR DEPUTY PRESIDENT: $106,111.84 but - - -

PN41

MS TAYLOR: Based if you are paying the award. If you are paying it on a weekly basis for the award wages.

PN42

THE SENIOR DEPUTY PRESIDENT: Right.

PN43

MS TAYLOR: We are paying $65,000 minimum per annum for that work.

PN44

THE SENIOR DEPUTY PRESIDENT: Yes.

PN45

MS TAYLOR: And you can see from the award side it requires you to pay $52,900 per annum, minimum, of the award. And I stress that the rates in th agreement are the minimum based salaries that are applied.

PN46

THE SENIOR DEPUTY PRESIDENT: But what is the other one, results for the agreement?

PN47

MS TAYLOR: Yes.

PN48

THE SENIOR DEPUTY PRESIDENT: What is that about?

PN49

MS TAYLOR: Results from the agreement, this is the OEA calculator that we use and it breaks down the per week and it adds in all loadings such as, on costs, your public holidays, any penalties that come through, any sick leave, any annual leave and those other components so it comes up with a higher figure.

PN50

THE SENIOR DEPUTY PRESIDENT: A higher figure than what you are actually paying?

PN51

MS TAYLOR: Yes. But what we are actually paid is the $1250, is the $65,000 per annum divided by 52.14 to give a weekly wage.

PN52

THE SENIOR DEPUTY PRESIDENT: And that is the maintenance technician position is it?

PN53

MS TAYLOR: Yes.

PN54

THE SENIOR DEPUTY PRESIDENT: In the agreement?

PN55

MS TAYLOR: Yes.

PN56

THE SENIOR DEPUTY PRESIDENT: So under the award, that position would earn $55,311.47?

PN57

MS TAYLOR: That is including superannuation, that is correct.

PN58

THE SENIOR DEPUTY PRESIDENT: Including superannuation. Is the $65,000 including superannuation?

PN59

MS TAYLOR: No. No, that is excluding superannuation, sir.

PN60

THE SENIOR DEPUTY PRESIDENT: So superannuation is paid on top of that?

PN61

MS TAYLOR: That is correct, yes.

PN62

THE SENIOR DEPUTY PRESIDENT: What is the rate of superannuation?

PN63

MS TAYLOR: Nine per cent for this agreement.

PN64

THE SENIOR DEPUTY PRESIDENT: Nine per cent, according to the - - -

PN65

MS TAYLOR: Nine per cent and it will change. I think the superannuation clause has provision for change should the SGC rate change.

PN66

THE SENIOR DEPUTY PRESIDENT: But there are no salary increases over the life of the agreement for the 3-year period, are there?

PN67

MS TAYLOR: No. But I do stress, some employees are on higher levels of pay and they will be continually on those higher - remain on those levels of pay. These are just the minimum for each bracket of employee. Salaries, sorry. My apologies, Senior Deputy President. Salaries are actually reviewed every year; on an annual basis and so they will increase.

PN68

THE SENIOR DEPUTY PRESIDENT: Yes, it says that in the agreement but that does not necessarily mean there would be an increase, does it?

PN69

MS TAYLOR: No. They will not be decreased at all from these.

PN70

THE SENIOR DEPUTY PRESIDENT: No, no. But it doesn't mean there will be an increase neither, does it?

PN71

MS TAYLOR: The company undertakes that it does give an increase each year in salary reviews. I guess it does not - it is not a hundred per cent guaranteed that all rates will go up, no.

PN72

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Okay, all right, go on.

PN73

MS TAYLOR: Okay. Sir, with passing the NDT, the agreement also contains a disputes settlement clause and the agreement as a nominal expiry date of no more than 3 years after the date of certification by the Commission.

PN74

THE SENIOR DEPUTY PRESIDENT: Yes, just on the dispute settlement clause?

PN75

MS TAYLOR: Yes.

PN76

THE SENIOR DEPUTY PRESIDENT: In appendix 1, paragraph 1.4?

PN77

MS TAYLOR: Yes.

PN78

THE SENIOR DEPUTY PRESIDENT: It says:

PN79

If the employee is not satisfied with the Resident Mine Manager or General Manager, the General Manager Exploration's decision, they may seek to have the issue arbitrated by a third party including a Commissioner of the Australian Industrial Relations Commission.

PN80

Is it meant to confine it to a Commissioner or a Senior Deputy President or a Deputy President?

PN81

MS TAYLOR: No. It will be by someone appointed by the Australian Industrial Relations Commission.

PN82

THE SENIOR DEPUTY PRESIDENT: So just, a member of the Commission and not, just a Commissioner.

PN83

MS TAYLOR: Certainly. It does not have to be a Commissioner, no.

PN84

THE SENIOR DEPUTY PRESIDENT: Right. It can be any member of the Commission?

PN85

MS TAYLOR: Yes.

PN86

THE SENIOR DEPUTY PRESIDENT: Yes. All right, now I have a couple of other queries. Did you want to say anything more before I ask?

PN87

MS TAYLOR: No. No, certainly, sir.

PN88

THE SENIOR DEPUTY PRESIDENT: The hours of work definition, 11.5.1.

PN89

MS TAYLOR: Yes.

PN90

THE SENIOR DEPUTY PRESIDENT: Normal working hours means:

PN91

...those normal working days that the employee is contracted to work. Employees normal working hours will be arranged in days or shifts of up to 12 hours duration over a defined cycle.

PN92

Do I have any material before me to tell me what a defined cycle is? I mean, apart from the definition?

PN93

MS TAYLOR: The no disadvantage test that we have provided show the 2-in-1 defined roster cycle which is two - - - THE SENIOR DEPUTY

PN94

PRESIDENT: Sorry, that is this one here?

PN95

MS TAYLOR: Yes.

PN96

THE SENIOR DEPUTY PRESIDENT: Yes.

PN97

MS TAYLOR: A two weeks on working over a continuing shift pattern of seven days, seven nights, seven off. And that is a standard pattern across the operations.

PN98

THE SENIOR DEPUTY PRESIDENT: Why did you only do this for one classification, by the way?

PN99

MS TAYLOR: I brought that as an example, along today. I can supply the Commission with a - - -

PN100

THE SENIOR DEPUTY PRESIDENT: Yes, I think it might be helpful.

PN101

MS TAYLOR: Certainly.

PN102

THE SENIOR DEPUTY PRESIDENT: If you would provide me with a similar calculation in respect of each of the other classifications.

PN103

MS TAYLOR: Certainly.

PN104

THE SENIOR DEPUTY PRESIDENT: Clause 13.5 under, Hours of Work, page 6.

PN105

MS TAYLOR: Yes.

PN106

THE SENIOR DEPUTY PRESIDENT:

PN107

In addition to working normal working hours the company may require employees to work reasonable extra hours including call outs and employees must work those extra hours. Employees remuneration packages include a component to account for the working of extra hours. This means that overtime is not paid.

PN108

Now, when you did the calculations for the position that you provided the form to me for, did you take into account the overtime hours that they would be required to work?

PN109

MS TAYLOR: Not in terms of - in terms of the award set up, it has overtime per week based on the roster paid but there is no component for call outs. They are not a common occurrence as such within - that clause is, merely, should the employer have an operational situation where a call out is required.

PN110

THE SENIOR DEPUTY PRESIDENT: But is there rostered overtime generally?

PN111

MS TAYLOR: No. The way the salaries are constructed is that $1,250 per week is payment for all hours worked in the week including if there were call outs.

PN112

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that but if they worked under the award, how often would they be required to work overtime or how much overtime would they normally - - -

PN113

MS TAYLOR: They work in a 2-in-1 cycle. They work 24 hours of overtime in both week 1 and week 2, and in week 3 which is their week off, obviously there is no overtime worked.

PN114

THE SENIOR DEPUTY PRESIDENT: And have you included that into the calculation?

PN115

MS TAYLOR: Yes, I have. You will see on the second page of the calculations, there is a shift roster pattern which is like the last 3 boxes down the page.

PN116

THE SENIOR DEPUTY PRESIDENT: I see. Yes.

PN117

MS TAYLOR: You will see they work 60 hours normal.

PN118

THE SENIOR DEPUTY PRESIDENT: Right.

PN119

MS TAYLOR: Ordinary hours. And then 24 overtime a week. It is based on the average in provision of a 40 hour week ordinary hours.

PN120

THE SENIOR DEPUTY PRESIDENT: All right, so you will provide that for me in each of the calculations for each of the classifications?

PN121

MS TAYLOR: Yes.

PN122

THE SENIOR DEPUTY PRESIDENT: All right. Is the annual leave loading paid under the award?

PN123

MS TAYLOR: Annual leave loading?

PN124

THE SENIOR DEPUTY PRESIDENT: Yes.

PN125

MS TAYLOR: Yes, it is.

PN126

THE SENIOR DEPUTY PRESIDENT: What is the value of that under the award?

PN127

MS TAYLOR: Leave loading is 17.5 per cent under the award.

PN128

THE SENIOR DEPUTY PRESIDENT: Sorry, what?

PN129

MS TAYLOR: 17.5 per cent under the award. And they have also been provided with an extra week's annual leave and annual leave loading for continuous shift workers.

PN130

THE SENIOR DEPUTY PRESIDENT: So the 28 days, that is 28 week days, is it?

PN131

MS TAYLOR: Yes.

PN132

THE SENIOR DEPUTY PRESIDENT: 28 working days. Yes, all right is there anything else you want to say?

PN133

MS TAYLOR: No, that is all today, thank you.

PN134

THE SENIOR DEPUTY PRESIDENT: All right. How long will it be before you can provide me with those?

PN135

MS TAYLOR: I will be able to provide them electronically today.

PN136

THE SENIOR DEPUTY PRESIDENT: Later today, will you?

PN137

MS TAYLOR: Yes, certainly.

PN138

THE SENIOR DEPUTY PRESIDENT: Can you e-mail them?

PN139

MS TAYLOR: Certainly.

PN140

THE SENIOR DEPUTY PRESIDENT: Yes, well if my associate speaks to you after we have adjourned, you can find out the relevant address for e-mailing then.

PN141

MS TAYLOR: Certainly. Not a problem.

PN142

THE SENIOR DEPUTY PRESIDENT: And I will be here all week if there are any other difficulties, then I will get my associate to contact you and follow that through. Is there anything else you want to say?

PN143

MS TAYLOR: No, that is all today, thank you.

PN144

THE SENIOR DEPUTY PRESIDENT: All right. Well subject to you providing those documents and my satisfaction as to the no disadvantage test then I will certify the agreement otherwise, we will contact you.

PN145

MS TAYLOR: Okay.

PN146

THE SENIOR DEPUTY PRESIDENT: Thank you.

ADJOURNED INDEFINITELY [9.15am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 EXAMPLE OF SALARY CLASSIFICATION PN35