C0080/898, Transcript of Proceedings [2003] AIRCTrans 3445 (13 August 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BACON

C No 00808 of 1998
C No 00809 of 1998

APPLICATION FOR A REVIEW PURSUANT TO
ITEM 51 SCHEDULE 5 TRANSITIONAL WROLA ACT 1996
OF THE COAL MINING INDUSTRY (SUPERVISION AND ADMINISTRATION) INTERIM CONSENT AWARD 1990,
NEW SOUTH WALES AND TASMANIA, THE (ODN C00548/89) - COAL INDUSTRY

APPLICATION FOR A REVIEW PURSUANT TO
ITEM 51 SCHEDULE 5 TRANSITIONAL WROLA ACT 1996
OF THE COAL MINING INDUSTRY (SUPERVISION AND ADMINISTRATION) INTERIM CONSENT AWARD 1990, QUEENSLAND, THE (ODN C00548/89) - COAL INDUSTRY

BRISBANE

10.54 AM, WEDNESDAY, 23 JULY 2003

PN1

THE COMMISSIONER: Could I take the appearances please?

PN2

MR G. GILLESPIE: If the Commission pleases, my name is Gillespie, G. I appear on behalf of a number of Queensland companies, a list of which was tendered on a previous occasion, as I recall. This is a continuation of previous matters, Commissioner, so I am sorry I didn't bring a copy of the list.

PN3

THE COMMISSIONER: You mean the previous matters before Commissioner Harrison?

PN4

MR GILLESPIE: No, I think - I thought one matter had been before you on one occasion.

PN5

THE COMMISSIONER: There was a conciliation conference.

PN6

MR GILLESPIE: Yes. Yes, I think that was on 26 August, in fact. Perhaps I didn't lodge appearances there, but previously when the file I think had been with Commissioner Wilks, and I think prior to that with Commissioner Harrison. I am guessing now, I am afraid.

PN7

THE COMMISSIONER: In any event, Mr Gillespie, you might be able to provide an updated list or a copy of the old list. Do I understand that you are appearing in both matters?

PN8

MR GILLESPIE: Sorry. No, I am appearing in the Queensland Award matter.

PN9

THE COMMISSIONER: Very well. Thank you.

PN10

MS C. HOLMES: If the Commission pleases, Holmes, C. I appear in relation to the New South Wales award matter on behalf of a number of New South Wales minerals council members, a list of which was handed up to you, I believe, on the last occasion, 2 October, which is my recollection of the last time that it was before you.

PN11

THE COMMISSIONER: Thank you, Ms Holmes.

PN12

MS HOLMES: With me is Mr J. WHALE.

PN13

THE COMMISSIONER: Very well. Thank you.

PN14

MS C. BOLGER: If the Commission pleases, I appear on behalf of the Association of Professional Engineers, Scientists and Managers Australia, Bolger C.

PN15

THE COMMISSIONER: Thank you, Ms Bolger. Mr Gillespie?

PN16

MR GILLESPIE: Thank you, Commissioner. Commissioner, this matter has been around for a long time. It is to do with the simplification of the two awards, and was initiated back in the end of '97 and early in '98, and then applications were filed later in '98 with respect to New South Wales award and in '99 with respect to the Queensland award. We have been, as you just pointed out, before you by way of a conference on 26 August last year, and 2 October last year was a hearing before you as I recall, and before and since then we have had a series of meetings with APESMA. In fact, there is some six different times, the last of which was in April of this year.

PN17

We believe from the Queensland companies' point of view that we are not getting anywhere. We are going around in circles to some extent. The discussions have been on a without prejudice basis, so obviously I can't go into the individual matters that have been discussed, but it is an all or nothing type arrangement so as we haven't reached agreement on a number of the matters, we don't seem to be able to reach agreement.

PN18

In the light of those circumstances, we believe that we should now move to the arbitration stage, and we would be seeking from you today some directions as to the lodging by the employers of an outline of submissions possibly in about a month's time, a similar period later, the outline by APESMA, and then approximately a fortnight after that for any reply, or outline of submissions in reply by the employers, and with a hearing some two weeks or so after that.

PN19

There is at least two issues that will be matters of principle associated with those. Our view is that those can be dealt with at the same time as the other matters, and there is no need for any separate hearing of preliminary points. That would only be delaying the matter even further than the lengthy period we have had already. If the Commissioner pleases, that is our position at the moment.

PN20

THE COMMISSIONER: Very well. Thank you. Ms Holmes?

PN21

MS HOLMES: Yes, thank you, Commissioner. I concur with what Mr Gillespie has put to you. On behalf of the New South Wales companies, it has been disappointing, I must say, that despite some six formal negotiation meetings and other informal discussions, and drafts having been sent to and fro during a period of October until - well, until just recently, Commissioner, that we have been unable to agree, and that it is an all or nothing situation if we are unable to agree on the content of a new award, and rates we are unable to agree on - we are not able to agree on pieces of it.

PN22

So I have certainly had discussions with Mr Gillespie this morning, and we would support his suggestion that we proceed to arbitration and that submissions be filed by us in a month, with similar time for the union to have their time to file submissions, and any reply by us in two weeks, and then arbitration before yourself some time in late October.

PN23

THE COMMISSIONER: Very well. Thank you. Ms Bolger?

PN24

MS BOLGER: Commissioner. Firstly, I would just like to draw your attention to the correspondence that APESMA sent you on 17 September, which I presume is on your file, and the response.

PN25

THE COMMISSIONER: The 17 September?

PN26

MS BOLGER: September 2002, yes. I bring this up in response to Mr Gillespie's discussion of a conference on 26 August. You will recall in the correspondence to you of 17 September, which was copied to the people around the Bar Table, we indicated at that conference on - we were not advised that that conference was going to be about these awards, and a view about simplification. We were given listings that it was in relation to another matter. In response to that, you wrote back to us saying, "You note our views, and that if there is a threshold matter that needs to be determined, then you will determine it."

PN27

That brings me to my first issue. APESMA believes, and is of the view, that both of the awards, the Queensland award and the New South Wales award, have been simplified in respect of conditions matters. We accept and acknowledge that the rates have not been reviewed pursuant to the pay rates decision; however it is our strong position that the decision of Commissioner Harrison in, I think, was around December - the decision of Commissioner Harrison in print Q9533 in December 1998 which was an item 51 review of the awards was the simplification of the conditions matters.

PN28

The employers have a different view. In an attempt to try and bring our positions closer we have, as the employer has indicated, met since last year and had without prejudice negotiations. I have a more positive view of where we are at than the employers do. We have, I believe, without going to the detail, got agreement on almost everything except for one - perhaps one outstanding issue and one issue we discussed this morning which we need to clarify.

PN29

Our view on that one outstanding issue is that perhaps the employers are going further than the award simplification principles. Their view is it is part of the award simplification principles. So we have a bit of a difference on that one issue. Where do we go from here? Commissioner, as I know this Commission is only too well aware, the scheme of the Act is that conciliation should take place prior to arbitration taking place - for good reason. Often when the parties get together and they haven't been able to sort it out with some guidance from the Commission, we are able to resolve matters. So APESMA, we haven't had any conciliation to date, and APESMA seeks that we have conciliation on the rates, and then also on the without prejudice issues on the conditions matters.

PN30

Now, I put that view to the employers this morning. I will let them summarise what their response is in respect of that. One of the issues they did raise was that if that were to be the way that it went forward, then there may be an issue with the Commission as it is presently constituted conciliating and arbitrating. I have indicated to them, and would put to the Commission, that as often is the case, it is open to the Commission to allocate the conciliation to another member who sits in the Coal Industry Panel, and then arbitrate, or alternatively it is open to the Commission as presently constituted to conciliate and if necessary to allocate to another member for arbitration.

PN31

APESMA does not have a strong view about which way is the best way out of those two options. That is a matter for the Commission to determine. But we do submit that the scheme of the Act is conciliation prior to arbitration and that conciliation should occur. Then that brings us back to what I am calling a threshold issue. That is, whether the awards themselves have been simplified in respect of conditions matters. Should conciliation fail and that we don't have an agreement on a consolidated package, then APESMA submits that the threshold issue needs to be determined and that should be determined first.

PN32

We say that should happen in a shortened time frame, having regard to the employers views that they would like to wrap this matter up reasonably quickly. So if we were, we would seek that we have conciliation in the next couple of weeks, if at all possible, given the Commission's timetable. So if we were able to have conciliation prior to 22 August, that would be good, subject to the Commission's timetable. We would then suggest that we have two concurrent timetables, if you like: one, the timetable, the shortened timetable, for the threshold issue, the other one being the timetable probably as outlined by Mr Gillespie for the rates.

PN33

So we would hope that we could then determine the issue on the threshold issue and then move, if necessary to look at conditions matters but our view is that they are determined so it would be a waste of the parties' time to enter into submissions and responses without the issue being determined first. If the Commission pleases.

PN34

THE COMMISSIONER: Thank you. Mr Gillespie?

PN35

MR GILLESPIE: Commissioner, our position in relation to the conciliation is that we have had conciliation. We have had conciliation before Commissioner Harrison and at that time, the arguments with respect to, or the process with respect to simplification was split into two parts. The agreement was, and it is not in writing, but the agreement that clearly was from our point of view that part one would be as we did in the Production and Engineering Award, part one would be the removal of non-allowable matters from the award and subsequently there would be changes to make the award flexible as required under the WROLA Act.

PN36

For convenience it was decided that we would not proceed with that at the same time as it was being argued or negotiated originally, conciliated and then finally arbitrated with respect to the Production and Engineering Award, that most of the provisions being similar could be picked up once the P and E award was decided. Then ACSA were involved initially in the proceedings with respect of the production engineering award as interveners. So we say there has been conciliation.

PN37

There has been a process agreed and it is simply a matter now of varying the award in terms very similar in most respects with the Production Engineering Award that was decided eventually by a Full Bench of the Commission. So we say there is no need for further conciliation, and with respect to the particular so called preliminary points, they can be argued as part of the general matters and don't need to be handled separately and we would support that process. If the Commission pleases.

PN38

One other point: with respect to the Commission as presently constituted dealing with conciliation, or passing it on to somebody else, our point is that in this regard, that it is a lot easier when the Commissioner from the panel knows the industry and we would be supporting that you continue to handle the matter. There doesn't have to be a referral either of the conciliation or of the arbitration. The parties need to agree that no point under section 105 will be taken and from our part we would be happy to do that. If the Commission pleases.

PN39

THE COMMISSIONER: Yes, thank you. Ms Holmes?

PN40

MS HOLMES: Yes, thank you, Commissioner. On the point about whether there is the requirement for further simplification, I concur with what has been put by Mr Gillespie that the decision of Commissioner Harrison was merely putting formally in place a consent position that had been reached by the parties on the first stage. That is to remove a number of non-allowable award matters or matters that were found to be non-allowable in relation to the Production and Engineering Award and that certainly there were discussions and matters that were reflected in transcript to suggest that there was to be a second stage after the Production and Engineering Award had gone to the Full Bench and beyond to the High Court and so on.

PN41

And that after all those matters had been dealt with comprehensively by the Commission that the Staff Award being in relatively similar terms in a number of respects to the Production and Engineering Award that after it was dealt with, the second stage of the Staff Awards simplification would take place. Looking at Commissioner Harrison's decision itself, it merely does take out a number of non-allowable award matters and does not deal with the other aspects of the WROLA Act in terms of award flexibility and so on.

PN42

THE COMMISSIONER: How do you mean it doesn't?

PN43

MS HOLMES: I don't have Commissioner Harrison's decision with me, Commissioner.

PN44

THE COMMISSIONER: It was a consent award and the Commissioner - I am just at a bit of a loss to know what it is - I have read the transcript and I recall that there was some debate about how the matter should proceed and the employers put that it should be a two phase arrangement and that was opposed. The Commissioner never expressed any decided view on that, at least not that I could see in the transcript. Rather he adjourned into private conference and I think the next record of what happened was a consent award and a decision.

PN45

MS HOLMES: And a further transcript reflecting that the parties have agreed, or in conjunction with that decision that the parties had agreed on a first stage award. Again, I don't have that transcript in front of me to hand up but the transcript giving rise to that first stage or what we say is a first stage decision, says the parties have agreed on a first stage award and that clears up or in our submission, clears up any doubt that may have existed or any dissent by the parties as to what was to happen.

PN46

THE COMMISSIONER: Except that there is no definition of what first stage means. See, as I understand it, what the employers are now saying is, that there was a two stage process. One is that you would remove the non-allowable matters from the award which seem to be an interesting exercise given that the Act gave them no effect in any event, so that was a drafting exercise. The two stages, one can be that we will remove those and then when the P and E Award is finally settled we will get back together and make some further variations to the award clauses including wages.

PN47

The other might be, we will vary all the award - the various clauses of the award in accordance with the Commission's obligations under the statute and then we will come back to wages. My issue is not necessarily - I am trying to find clarity on whether or not there was a two stage process. It's what content was in each of the stages that interests me.

PN48

MS HOLMES: Certainly, well, our submission is that even putting aside for one moment agreement or otherwise, if you look at the award itself, there are a number of - it is not a simplified award and my submission would be that given the rates have not been properly fixed and that is conceded I think by Ms Bolger today that the rates have not been looked at, that the award simplification process has not been completed as it is a requirement that the rates be properly fixed in an award for it to be deemed a - - -

PN49

THE COMMISSIONER: Is it a requirement of the WROLA that that be done, of item 51?

PN50

MS HOLMES: By the paid rates decision, yes, I believe so, in item 51(4). An item 51(4) review has not been completed, therefore, the award is not simplified, whether or not there was agreement, and what the stage 1 and 2 process was - - -

PN51

THE COMMISSIONER: Item 51(4) is that the award that you were dealing with had to be a paid-rates award. Is that's what's being alleged here, that this award operated as a paid-rates award?

PN52

MS HOLMES: And there was a decision subsequent to the WROLA Act that the paid-rates decision that dealt with the proper fixing of minimum rates, which we spoke of on the last occasion. And principles - I believe 10 principles were set down for the proper fixing of minimum rates, and that was to occur in conjunction with any award simplification process.

PN53

The rates clearly haven't been fixed. Therefore, whether there's agreement or not, and we believe there was agreement to look at further award matters beyond those in item 51(4), but if there was an agreement, certainly the process is not completed and can be looked at. And there are a number of provisions that, in our submission, clearly need to be dealt with.

PN54

THE COMMISSIONER: Can you take me to them?

PN55

MS HOLMES: The major issue is clause 8, Commissioner.

PN56

THE COMMISSIONER: Of the New South Wales award?

PN57

MS HOLMES: Of the New South Wales award - the agreements provision, and it is similar in the Queensland award. A similar provision exists in the Queensland award. That provision is arguably non-allowable, given a decision by the Full Bench in the 109 decisions. I don't have a reference for you. There are a number of other provisions - - -

PN58

THE COMMISSIONER: How could it not be allowable and it be in an award that was made after the operation of the 1996 amendments? If it was not allowable, you could not put it in an award that was made subsequent to December 1996.

PN59

MS HOLMES: This - - -

PN60

THE COMMISSIONER: There was no power to do so.

PN61

MS HOLMES: All the - - -

PN62

THE COMMISSIONER: So the award can't be properly made.

PN63

MS HOLMES: All that was done in 1999 is that there was a consent award which was, we say, the first stage consent award.

PN64

THE COMMISSIONER: Correct, but to have a consent award, the Commission must have jurisdiction to make the clause. In 1996, I think, from 1 January 1997, the effect of the changes to the legislation was that section 89A came into operation and you couldn't by arbitration, or - sorry, you couldn't make an award that included a non-allowable matter. You now say this matter is not allowable.

PN65

MS HOLMES: And we say therefore that - - -

PN66

THE COMMISSIONER: Therefore the power didn't exist to make the award that the employers apparently consented to.

PN67

MS HOLMES: That's correct, Commissioner, and should any non-allowable award matters exist in an award, I believe that they cease to be effective and that is so - if arguably clause 8 - - -

PN68

THE COMMISSIONER: That was the effect of - you're right about that. If it existed in the award prior to the coming into effect of the roller, the operation particularly that item of the roller - - -

PN69

MS HOLMES: And this agreement's - - -

PN70

THE COMMISSIONER: - - - that included - - -

PN71

MS HOLMES: Yes.

PN72

THE COMMISSIONER: - - - section 89A. So if there was something in there that was not allowable, the parties had 18 months to come to grips with that, and that would cease to have any effect at law. But from the very commencement of - so from 1 January - my recollection - 1 January 1997, the effect of 89A was that if you made a new award, or you varied an existing award, your power - the Commission's power to do so was circumscribed by 89A. That means you couldn't make an award that included non-allowable matters, even though those non-allowable matters, an equivalent clause might appear in an existing award because it had been there for some years.

PN73

MS HOLMES: So you're suggesting, Commissioner, that all the - because the clauses have been included in a consent award in 1999 that they are all deemed to be allowable award matters, otherwise the Commission wouldn't have had - - -

PN74

THE COMMISSIONER: I'm definitely not saying that. I'm saying quite the reverse, that the Commission can only make an award within its jurisdiction if 89A removes a clause such as clause 8 - is it, that you complain of?

PN75

MS HOLMES: Yes.

PN76

THE COMMISSIONER: From the power to make an award, then you can't make one, and any decision or award that purports to contain such a clause, to the extent of that clause and maybe beyond, is - has no effect. It's a nullity.

PN77

MS HOLMES: We would suggest then that if such provisions, which arguable are non-allowable, award matters are in fact nullities, that it's in the interests of all parties to have a - what we've seen as a tidy up exercise done, and the award - the words of the award reflect the - what is binding, in effect, between the parties.

PN78

THE COMMISSIONER: My concern is this: the employers obviously thought it was an allowable matter when they included it in their draft consent award and went to Commissioner Harrison and said, "Here, make this award for us," on 29 March 1999.

PN79

MS HOLMES: All - as - - -

PN80

THE COMMISSIONER: I mean, it's almost bizarre to say that the employers thought this was non-allowable but we thought we'd just put it in the award anyway.

PN81

MS HOLMES: As we've previously submitted, all the employers sought to do in 1999 was to have a first stage award agreed, rather than deal with the award in its entirety, to have a first stage completed. Matters that were easily dealt with, given what had gone on with the Production and Engineering Award, and you will see I've - as I say, I don't have a copy of Commissioner Harrison's decision in front of me, but you do, I believe, Commissioner.

PN82

It's very - it's a very - very sparse decision. It merely takes out a number of clauses and in my view does not - I've been involved in a number of simplification exercises and certainly a true simplification process would have dealt with many more clauses than I think - possible seven or eight that are listed there. So whether or not there was agreement, the decision in itself cannot be seen as completing the simplification process, if you look at, on its face, what Commissioner Harrison did on that occasion. And the supporting transcript would suggest that it's a stage one process.

PN83

Commissioner, can I just comment, I don't have a copy of the WROLA Act in front of me, but I believe there's - there's certainly a second process involved, not just the obvious thing of taking out what is allowable and non-allowable, but the second stage, other than the rates, is to consider such things as whether clauses are expressed in plain English; whether there are sufficient facilitative provisions in an award, which is part of a comprehensive award simplification process. It's clear that those, at least, have not been done.

PN84

Even if we - even if we are - we have to accept that the non-allowable, or allowable award matter aspect has been dealt with, and that we now cannot remove any matters that we perceive are non-allowable, there's certainly aspects such as determining whether there are sufficient facilitative provisions in the award, given the level of people that we're dealing with and the nature of the industry, and the history of the award, as well as whether clauses are expressed clearly and in plain English, and allow sufficient flexibility and clear understanding for them to operate at individual workplaces. At the very least, that, in conjunction with the rates has not been done, and Commissioner Harris's decision cannot be said to consider such matters.

PN85

THE COMMISSIONER: All right. Thank you. Ms Bolger?

PN86

MS BOLGER: Commissioner, I just wanted to clarify a few things. There was no - I have been through all the APESMA records and the Commission's records on the matter, because I wasn't there at the time. There was no agreement between the former ACSA and the relevant mining councils that there would be a second stage of conditions looked at. The award itself has been treated as though it is simplified.

PN87

A Full Bench of the Commission, in the matter in Bengala, has treated it as though it was simplified, except for rates. It may be said that these employers are perhaps trying to have a second bite of the cherry, looking back a couple of years later, there are some things that they would like to change. That doesn't change the fact that they had the opportunity to appeal Commissioner Harrison's decision at the time, and they didn't do that. Commissioner Harrison's decision - - -

PN88

THE COMMISSIONER: The could hardly appeal it. It was consent.

PN89

MS BOLGER: Well, if they felt so strongly about it, they could have tried to appeal it. Commissioner Harrison's decision - nowhere does it mention that there is more to come. It talks about being an item 51 review.

PN90

THE COMMISSIONER: You think not?

PN91

MS BOLGER: It says it's a review of the award under item 51 - - -

PN92

THE COMMISSIONER: But you think the Commissioner doesn't suggest that there's more to come? I mean, if you go to the third paragraph, he says:

PN93

The parties contend, that as a result of item 50 -

PN94

item 50; that's interesting -

PN95

it is unclear which provisions of the current award continue to have legal force.

PN96

MS BOLGER: Then, if you go one sentence before that, which on my version is at the bottom of the page. It may well be on yours as - - -

PN97

THE COMMISSIONER: But if I can just - - -

PN98

MS BOLGER: Sorry.

PN99

THE COMMISSIONER: - - - go to the next sentence. I'm sorry I paused, but the next sentence of the Commissioner says:

PN100

The variation in orders which will issue will remove a number of non-allowable provisions identified by Boulton J.

PN101

And he quotes the Judge's decision in relation to the P and E award. My comment about that paragraph is that it's hard to read it and give it any other meaning other than, "All I'm doing here is going to remove a number of provisions which have already been decided in another matter, are non-allowable", as opposed to, "This completes an item 51 review of this award".

PN102

MS BOLGER: But if we read the decision in the earlier paragraphs, on your point there, in the first paragraph he says, at line 4, he talks about the decision as concerns the application, blah, blah, blah. He says:

PN103

Following a review of the award under item 51 of part 2 of schedule 5 of the WROLA Act that was initiated by the Commission pursuant to section 33...

PN104

He then goes on to say:

PN105

The parties submit that ambiguity and uncertainty is the reason, in respect of the whole of the current award, as a result of item 51.

PN106

Once again, and then he goes on to 50, so it's quite clear that it was an item 51 review.

PN107

THE COMMISSIONER: But if the Commissioner only did what he says he - if he only did what he says is all he did in the decision, I'm not sure that would constitute a complete item 51 review of an award. He makes no mention about anything else other than removing a number of clauses which he says - by inference, he says are non-allowable.

PN108

MS BOLGER: I suppose I can just go back to that first paragraph where he talks about it being an item 51 review.

PN109

THE COMMISSIONER: Sure. I mean.

PN110

MS BOLGER: Yes. I mean, this - - -

PN111

THE COMMISSIONER: But how you conduct an item 51 review, there's nothing which says it has to be done in one step, and indeed, as we know, the P and E award was not done in that way; it was done in another way.

PN112

MS BOLGER: There was never any agreement that the P and E award process would be adopted by us. Yes.

PN113

THE COMMISSIONER: I accept that. I'm not suggesting there was any agreement about anything. All I'm suggesting is that - I'm trying to run this to ground as to what the Commission did, and the starting point for that has to be too look at what he says he's doing, and what he says he's doing is, as a result of item 50, which says that certain clauses will cease to have lawful effect from 18 months after the commencement of the WROLA, he says, "Well, I'm just going to pull them out of the award". There's no reference about - and I would be happy to see any clauses that were simplified in a way - if I can use that term, "simplified" - in a way that was required by item 51.

PN114

MS BOLGER: What he says, himself - - -

PN115

THE COMMISSIONER: See, item 51 certainly requires you to remove those clauses that have been affected by item 50.

PN116

MS BOLGER: That's right, yes.

PN117

THE COMMISSIONER: And then goes on and places an onus on the commission to look at a raft of other things, and there's no evidence - and I'm happy for someone to trot up clauses of the award that are different in the award made by Commissioner Harrison as to what appeared in the award prior to that, but there's no evidence on the file that other clauses were varied in a way that is consistent with item 51.

PN118

MS BOLGER: It's correct in saying that the only clauses that were varied are the ones that he has listed. Once again, in my experience, I've simplified a number of awards across different sectors, and in some there have been some facilitative provisions; in others there haven't been. He may have taken the view that clause 8 itself was a facilitative provision in that it - - -

PN119

THE COMMISSIONER: Well, I think that's so because isn't it headed - - -

PN120

MS BOLGER: Yes, absolutely, so that may well have been - and that is very broad in its terms. It talks about rates of pay, hours of work, and conditions of employment, and facilitation of those, and a process for it. So that is very broad in its terms so one could say, well, that is an example of how he has looked at item 51 in entirety.

PN121

THE COMMISSIONER: But that clause has been in the award - - -

PN122

MS BOLGER: Yes, but he may well have - - -

PN123

THE COMMISSIONER: - - - before Commissioner Harrison's award.

PN124

MS BOLGER: Sure. Perhaps what I'm saying is that that may satisfy 51 because it is a very broad facilitative provision.

PN125

THE COMMISSIONER: Yes, I accept that; it may.

PN126

MS BOLGER: Commissioner, in a way we're going to what I've termed the threshold issue.

PN127

THE COMMISSIONER: Very well, thank you.

PN128

MR GILLESPIE: Commissioner, there is one point that does arise out of that. Ms Bolger says that there was no agreement that the P and E process would be applied. Our argument is quite the contrary, there definitely was, and it was agreed that there was no purpose in running the same case that was under the S and A awards that was being run under the P and E awards. So it was a logical thing that we did that so I certainly don't accept - - -

PN129

THE COMMISSIONER: But there is no record of that.

PN130

MR GILLESPIE: No, there's not, Commissioner. I mean, we had that conference with Commissioner Harrison and that was the result of it. We then got up subsequently and the transcript shows that the advocate for the Colliery Staff Association at that time indicated that we had reached agreement on stage one. The inference is that there is a stage two and with the overriding actions that were being taken with respect to the P and E award, there to me can be no doubt as to what process was agreed, even though it's not written down anywhere.

PN131

THE COMMISSIONER: Mr Gillespie, can I get an indication from you of the clauses that are at issue between the parties?

PN132

MR GILLESPIE: Yes, Commissioner.

PN133

THE COMMISSIONER: I want to try and get a feel for how big this thing is because at the moment I have no idea.

PN134

MR GILLESPIE: Certainly there is a lot more than one or two issues in our view. There is some preliminary wording with respect to coverage that needs to be looked at. There is the clause 8, of course. There is - - -

PN135

THE COMMISSIONER: Are we talking about the Queensland award at the moment?

PN136

MR GILLESPIE: Sorry, yes, I am.

PN137

THE COMMISSIONER: Clause 8 of the Queensland award; is that what - - -

PN138

MR GILLESPIE: Yes. It's in fact the same as the New South Wales one. The coverage provisions I'm referring to were separate clauses that - or sub-clauses that deal with successors, assignees and take-overs which we say can all be amalgamated. I think there are some definitions as well actually as to working patterns that are in the P and E award which we believe would simplify and make the award more understandable. There is the clause 8 provision we've just mentioned. There are other provisions with - - -

PN139

THE COMMISSIONER: What do you say is the problem with clause 8?

PN140

MR GILLESPIE: Well, I guess our point there is that I think what Ms Holmes was trying to say is that, arguably - not necessarily but arguably - as a result of subsequent decisions it could be not allowable, but there are provisions in it in relation to the association being required to approve of certain things that certainly don't simplify it and are not flexible type facilitative provisions that allow agreement to be made with individuals or with groups of individuals.

PN141

Just going on from that, just off the top of my head there's arrangements or there's provisions in relation to the lengths of shift. There's the sick leave provision, there's the wage rates of course. There's some things to do with part-time employment I'm reminded. Unfortunately, there's a number of things in this draft I'm looking at that have been discussed and tentatively agreed if we had agreement on the whole package, but we haven't so they come back in to play, so I'm not able to really pick those up easily at the moment. I'd say that there's certainly more than half a dozen different issues within the award. I don't know if that's sufficient for your current purposes, Commissioner.

PN142

THE COMMISSIONER: Yes, it is. Thank you. Might it be likely that the employers are able to put a joint submission on any of these matters that relate to conditions, but that separate submissions might be necessary in relation to wages? Is that - - -

PN143

MR GILLESPIE: I certainly think that's the case, Commissioner. In fact, our thoughts were that we'd probably split the provisions between us and we wouldn't be each covering the same - - -

PN144

THE COMMISSIONER: Okay. That's what I was trying to avoid so if you'd prefer to do it that way, that's fine. If the matter proceeds - well, the matter has got to proceed one way or the other, but does at this stage anyone intend to call any evidence in relation to any of this?

PN145

MR GILLESPIE: Well, in relation to the issue about stage one and stage two - - -

PN146

THE COMMISSIONER: No, leave that aside for the moment.

PN147

MR GILLESPIE: Leaving that aside, probably not because to a large degree we'd be relying on what has happened in the Production and Engineering Award.

PN148

MS HOLMES: Yes. We'd agree with that also, yes.

PN149

THE COMMISSIONER: What about you, Ms Bolger?

PN150

MS BOLGER: No, not at this stage, Commissioner.

PN151

THE COMMISSIONER: Very well. Thank you. Ms Bolger, can you give me what it is the major points on which you rely in support of your contention that what Commissioner Harrison did was a complete item 51 review of this award when he amended it in 1999? I'd like to hear an outline of what material you base that contention.

PN152

MS BOLGER: Now?

PN153

THE COMMISSIONER: Yes, please.

PN154

MS BOLGER: I may miss some - - -

PN155

THE COMMISSIONER: I don't want a complete submission on it, but I'm - - -

PN156

MS BOLGER: Yes.

PN157

THE COMMISSIONER: - - - interested to know - I mean, you've referred to the fact of the Commissioner's words in his decision. Is there anything else?

PN158

MS BOLGER: The way in which - well, going back from there, the Commission itself has talked about the debate between the parties and then we went off the record. In the next lot of transcript prior to the award being made, the word "second stage" was used. Our understanding is that means the rates of pay. We then have the decision.

PN159

Following on from that, the award itself has been treated as though it was simplified by this Commission. A Full Bench of the Commission in the Bengala decision - that was a roping in decision - whether Bengala Mine could be roped in to the New South Wales award. In that decision, the Full Bench indicated that the subject matter had been simplified but not the rates, but that didn't preclude them from roping in in respect of the New South Wales award. I'm just trying to think off the top of my head.

PN160

THE COMMISSIONER: Do you have a - - -

PN161

MS BOLGER: The other thing that we have - - -

PN162

THE COMMISSIONER: - - - print reference to that matter.

PN163

MS BOLGER: I beg your pardon?

PN164

THE COMMISSIONER: Do you have a print reference to that matter?

PN165

MS BOLGER: To Bengala? I don't have it with me, but I can get it after this hearing.

PN166

THE COMMISSIONER: It related to the Bengala roping in award, was it?

PN167

MS BOLGER: That's correct. Yes.

PN168

THE COMMISSIONER: And the matter was - was that issue contested during the hearing? Is that a matter the Bench decided or - - -

PN169

MS BOLGER: No. No, the Bench made reference to it rather than making it as part of the decision. They treated the award as though it had been simplified. We were in the Commission in August 2001 in a hearing in front of Commissioner Wilks in respect of the New South Wales award and the rates. In that particular matter, there was discussion on transcript between the parties about whether the award itself had been - the conditions matters had been simplified.

PN170

We handed up the Harrison decision at that stage. Commissioner Wilks looked at that and said, "Well, look, it does appear as though as it has been simplified" and the employer advocate acknowledged that that was the case at that time, and that was in August 2001 - 7 August. They're, I think, the main points. As I indicated, Commissioner, I wasn't there at the time, so I'm relying upon other things to come to the view that we've come to.

PN171

THE COMMISSIONER: Mr Gillespie, it's your submission, as I understand it, as well as Ms Holmes, that the award made by Commissioner Harrison in 1999 did nothing else other than remove a number of clauses?

PN172

MR GILLESPIE: That's correct - the same clauses that - - -

PN173

THE COMMISSIONER: It did not introduce any test case standards into this award?

PN174

MR GILLESPIE: None at all. It was simply flowing on what had happened in the first stage of the P and E award.

PN175

THE COMMISSIONER: Very well. Thank you.

PN176

MR GILLESPIE: Did you want me to make any comment about those items that Ms Bolger's just raised?

PN177

THE COMMISSIONER: Any comment about them?

PN178

MR GILLESPIE: Well, for example, with respect to the stage 2 dealing with the wage rates. The paid rates decision actually came out between the two hearings on this matter before Commissioner Harrison, one on 15 October and the subsequent one that I don't have the transcript with me because I've attached it to another file. And wage rates were not even considered at this time. In relation to Bengala, Mr Whale, who's with us today, was the advocate in that matter and if you needed any further clarification on that matter, he could certainly provide that.

PN179

With respect to Mr Wilks, the employer advocate was not aware of what had happened in the previous proceedings and was just relying on the face of the documents that were put to him on the spot. So that doesn't assist at all, in our submission. I make no further comment outside of those.

PN180

MS HOLMES: Commissioner, can I, by way of example, just take you perhaps to a part of the award which exists? It's the current clause 11.4, Part-Time Employment. If you look at that clause as it currently reads, 11.4.1:

PN181

In circumstances covered by clause 30, Parental Leave, an employee may be engaged by the week to work on a part-time basis.

PN182

That clause - and then it sets out the entitlements that a part-time employee who can only be engaged in relation to - or in circumstances covered by clause 30. It sets out the entitlements then that they get. My submissions is, and there are a number of clauses like this, had the award - a full process been done, you would not have clauses in an award that are clearly archaic, that clearly only provide for part-time employment in parental leave circumstances and don't provide true pro-rata entitlements for part-time employees that we know and that we find in all modern awards.

PN183

There are a number of other provisions similar to that - sick leave, for instance. The sick leave provision in clause 27 is still expressed in days rather than in hours, and it's a modern concept, given differing concepts of days and differing concepts of ordinary hours on each day, that sick leave should be expressed in hours of accrual rather than days of accrual. Had Commissioner Harrison taken all of this into account and done the comprehensive review of the award that was his obligation to do and the Commission's obligation to do under item 51, we would not find such provisions still in the award. And my submission is that Ms Bolger has been unable to take you to any concrete examples of where something more than taking out non-allowable or award matters was done.

PN184

And at the very least, the very least, even if we concede that facility provisions don't need to be in an award, at the very lest, there would be something - if not test case provisions - resembling what I loosely term modern award clauses in an award.

PN185

MS BOLGER: Commissioner, we're getting into - I could then go to clauses of the order which I say is appropriate. I must make one comment. I find it quite interesting that the employers are referring to test case provisions, when they themselves are opposed - opposed in this Commission, a couple of weeks ago, us inserting the reasonable hours test case provision into the award, but that's another matter.

PN186

THE COMMISSIONER: What I'll do is issue some directions in relation to this matter later today. I need not say anything further about that, just at the moment. What I do intend to do now is adjourn these proceedings formally, and we'll have a discussion with the parties about the matters which Ms Bolger suggests might - some Commission-assisted conciliation might be fruitful. So I'll adjourn these proceedings for that purpose.

NO FURTHER PROCEEDINGS RECORDED