AG2002/6842, Transcript of Proceedings [2003] AIRCTrans 356 (4 February 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

AG2002/6842

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Endeavour Coal Pty Ltd for certification
of the Endeavour Coal Pty Ltd, Elouera Colliery
Mine Deputies Certified Agreement 2002

SYDNEY

10.15 AM, TUESDAY, 21 JANUARY 2003

Adjourned sine die

PN1

THE SENIOR DEPUTY PRESIDENT: Yes, I'll take the appearances, please.

PN2

MR A. McCOWAN: If the Commission pleases, I appear on behalf of Endeavour Coal Proprietary Limited, Elouera Colliery.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr McCowan. Any other appearances?

PN4

MR R. BAILEY: I'm from Elouera Colliery, COA Group and just representing them here today. I haven't been here before.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Take a seat.

PN6

MR BAILEY: Thank you.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes, Mr McCowan?

PN8

MR McCOWAN: Yes, thank you, your Honour. Your Honour, this agreement is made under section 170LK, an agreement with employees pursuant to division 2 of part IVB of the Workplace Relations Act 1996. The agreement I seek to have certified is titled the Endeavour Coal, Elouera Colliery Mine Deputies Certified Agreement 2002. Your Honour, the company and documentation, that being the agreement and the supporting statutory declarations as completed by representatives of the parties to the agreement confirm their parties intentions and unless the Commission requires, your Honour, I was going to let those documents read for themselves.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes. The agreement covers 19 employees, I notice.

PN10

MR McCOWAN: Yes, your Honour.

PN11

THE SENIOR DEPUTY PRESIDENT: They're all the mining deputies, are they?

PN12

MR McCOWAN: Your Honour, if I could just explain. It's an agreement made between a number of the mine deputies at Elouera. Previously the mine deputies were part of the CFMEU. It goes back some years, your Honour, I suppose. Originally they were members of the Colliery Officials Association. Elouera Colliery when it commenced in 1992, it only had one union covering the mine. In the last some months ago, a number of deputies became, if you like, didn't wish to continue to be members of the CFMEU and they chose to form once again a branch of the Colliery Officials Association.

PN13

I'd just like to make, your Honour, this is not an agreement with the COA as such. It's more an agreement with the employees. However, each of those employees are members of the COA. So there's a group of those, approximately 17 and I think just from memory, your Honour, there's four deputies who still remain as members of the CFMEU and as such they are covered by the terms of the Elouera Colliery Certified Agreement 2001. So there's a bit - not of confusion but -

PN14

THE SENIOR DEPUTY PRESIDENT: Well, you've managed to confuse me. How many mine deputies does Endeavour Coal, Elouera Colliery, employ?

PN15

MR McCOWAN: Approximately 24.

PN16

THE SENIOR DEPUTY PRESIDENT: How many mine deputies voted in relation to this agreement?

PN17

MR McCOWAN: 19, your Honour.

PN18

THE SENIOR DEPUTY PRESIDENT: 19 voted?

PN19

MR McCOWAN: 19 voted out of 19 who are subject to the agreement. There's five employees who remain as members of the CFMEU who are not parties to this particular agreement.

PN20

THE SENIOR DEPUTY PRESIDENT: Well, they may not be parties to it but doesn't this agreement govern their employment once it's certified?

PN21

MR McCOWAN: No, I believe this agreement covers the employment of the deputies who have -

PN22

THE SENIOR DEPUTY PRESIDENT: You've only listed them in appendix five?

PN23

MR McCOWAN: Yes.

PN24

THE SENIOR DEPUTY PRESIDENT: Aren't we falling foul of a provision of that which I'll have to find. It says that an agreement is to apply to all of the people in a particular category?

PN25

MR McCOWAN: I believe, your Honour, that the agreement could apply to a number of employees in a particular category.

PN26

THE SENIOR DEPUTY PRESIDENT: First of all, in appendix five, I've only got 14 employees.

PN27

MR McCOWAN: There are 14 permanent employees there, your Honour, and there are five what we call fixed term employees whose tenure has - some of those particular people have worked for 6, 12, 9 months, but at the time of the voting of this agreement were actually, if you like, members of the COA and chose to be parties to this particular agreement. Your Honour, if I might just - - -

PN28

THE SENIOR DEPUTY PRESIDENT: But their names don't appear there, do they?

PN29

MR McCOWAN: No, they don't.

PN30

THE SENIOR DEPUTY PRESIDENT: Well, you are managing to confuse me. I didn't pick this up when I read the agreement.

PN31

MR McCOWAN: Your Honour, the terms of this agreement are essentially exactly the same as the Elouera Colliery Certified Agreement. The agreement that we reached with the mine deputies, they chose not to be members of the CFMEU. They requested that they have an agreement in their own right and the company believed along with the deputies that a 170LK was a way we could have an agreement with those particular employees, but they weren't bound by anything to do with the CFMEU in their agreement.

PN32

THE SENIOR DEPUTY PRESIDENT: Are there any differences at all between this agreement and the Colliery Certified Agreement?

PN33

MR McCOWAN: No.

PN34

THE SENIOR DEPUTY PRESIDENT: None at all?

PN35

MR McCOWAN: None at all. It's basically a mirror image. The only thing that's different, your Honour, is any reference to the CFMEU.

PN36

THE SENIOR DEPUTY PRESIDENT: What's the full name of the colliery agreement?

PN37

MR McCOWAN: The colliery is Endeavour Coal Proprietary Limited, Elouera Colliery.

PN38

THE SENIOR DEPUTY PRESIDENT: Do you have a copy of it here by any chance?

PN39

MR McCOWAN: A copy of the agreement?

PN40

THE SENIOR DEPUTY PRESIDENT: Yes.

PN41

MR McCOWAN: Yes, your Honour.

PN42

THE SENIOR DEPUTY PRESIDENT: Yes, could I have a look at it? No, that's the one you want me to certify now, isn't it?

PN43

MR McCOWAN: I'm sorry, I misunderstood you. No, I don't have a copy of the Elouera -

PN44

THE SENIOR DEPUTY PRESIDENT: The CFMEU Agreement.

PN45

MR McCOWAN: The CFMEU Agreement, no, sorry, your Honour.

PN46

THE SENIOR DEPUTY PRESIDENT: Yes, just bear with me for a moment.

PN47

MR McCOWAN: Yes.

PN48

THE SENIOR DEPUTY PRESIDENT: Yes, you see, what concerns me is section - well, one of the things that concerns me is section 170LI(1)(b) because for an application to be made to the Commission:

PN49

There must be an agreement in writing about matters pertaining to the relationship between an employer.

PN50

and then (b): "All" -

PN51

and I emphasise the word "all" -

PN52

All persons who at any time when the agreement is in operation are employed in a single business or part of a single business of the employer and whose employment is subject to the agreement.

PN53

Now, you want somehow this agreement to operate only to the named employees, the 14 named employees, do you?

PN54

MR McCOWAN: Effectively, your Honour, yes. Your Honour, the difficulty being that we didn't wish to have a situation arise where, for example, the Colliery Officials Association and being a state registered organisation, we are aware of some previous history on that. However, whilst we don't have any difficulty and the company doesn't have any difficulty with the Colliery Officials Association who represent employees at our other pits, we just felt that we didn't also wish to have a situation arise with the CFMEU whereby they could effectively intervene and say, well, we've already got an agreement covering these employees.

PN55

So we felt that the 170LK agreement with the employees and then particularly the employees, if you like, your Honour, who are members of the COA at Elouera Colliery, that's really the effect and the names on the back are the employees who are members of that with the exception of those fixed term employees.

PN56

THE SENIOR DEPUTY PRESIDENT: Where does it leave them?

PN57

MR McCOWAN: Well, your Honour, they are members of the COA. We say they're covered. Because the agreements are exactly the same, but however, the COA employees - sorry, your Honour, the fixed term employees will actually have their employment ceased in March in any case. Their fixed term comes to an end. It's just that this has been going now for some months.

PN58

THE SENIOR DEPUTY PRESIDENT: Well, they may have something to say about not being bound by this agreement, I don't know. Has the nominal expiry date of the CFMEU agreement expired?

PN59

MR McCOWAN: It's the same, your Honour, 6 July 2004.

PN60

THE SENIOR DEPUTY PRESIDENT: Well, to the extent of any inconsistency, this agreement won't operate if you look at section 170LY(1)(b).

PN61

MR McCOWAN: Sorry, your Honour, LI?

PN62

THE SENIOR DEPUTY PRESIDENT: 170LY(1)(b).

PN63

MR McCOWAN: Yes, your Honour, that particular clause has no effect to the extent of any inconsistency with another agreement.

PN64

THE SENIOR DEPUTY PRESIDENT: Yes, so the CFMEU agreement will prevail over this agreement to the extent of any inconsistencies if there are any so what are you achieving?

PN65

MR McCOWAN: What we're achieving, your Honour, is the fact that there are a group of employees there who chose not to be represented by the CFMEU. Now, I understand, as well, that they can choose or not to be a member, or not be a member of the CFMEU. Certainly a number of -

PN66

THE SENIOR DEPUTY PRESIDENT: Well, the CFMEU agreement doesn't require anybody to be a member of the CFMEU, does it?

PN67

MR McCOWAN: No, that's correct.

PN68

THE SENIOR DEPUTY PRESIDENT: I still don't understand what you're achieving by making this agreement other than signalling that these people don't want to be members of the CFMEU.

PN69

MR McCOWAN: That's the intent, your Honour. I mean, our argument was that we are happy to have an agreement with you as a group of employees who are members of the Colliery Officials Association. However, there is no change to the particular agreement and we felt that that was something that could be done.

PN70

THE SENIOR DEPUTY PRESIDENT: Yes, well, I'll have to think about this. Do you want to say something?

PN71

MR BAILEY: Maybe, your Honour, if I could explain what happened?

PN72

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. I can do with all the help I can get.

PN73

MR BAILEY: I'm a deputy there and we were a member of the COA until we were forced to join the CFMEU in '92 to have a job. It was a greenfield site, you must join it, we had to join. Now that the situation has changed and also because we were - - -

PN74

THE SENIOR DEPUTY PRESIDENT: How has the situation changed?

PN75

MR BAILEY: Well, we're allowed to choose for ourselves now which union we belong to and because we had to get exception every time when the guys went on strike to do our statutory duties, the union had to agree to let some of the guys work whereas in the COA, that doesn't apply, we're automatically able to do our statutory duties and this makes it easier for - - -

PN76

THE SENIOR DEPUTY PRESIDENT: But what does that have to do with which agreement you're covered by if the terms are the same? You're not members of the CFMEU.

PN77

MR BAILEY: Presently, no, we've resigned and come back to the COA.

PN78

THE SENIOR DEPUTY PRESIDENT: Yes, well, that's fine. I don't follow what follows.

PN79

MR BAILEY: Well, the deputies are employed as a supervisory group and responsible to do statutory duties whereas the normal guys aren't. If ever there was a situation arise where the men were to work, we had to be excused and receive exemption to go and do that.

PN80

THE SENIOR DEPUTY PRESIDENT: That's why you were members of the CFMEU?

PN81

MR BAILEY: Yes.

PN82

THE SENIOR DEPUTY PRESIDENT: Yes, well, now that you're no longer members, that doesn't apply.

PN83

MR BAILEY: That's why we wish to be covered by the COA again so that we can do our required duties -

PN84

THE SENIOR DEPUTY PRESIDENT: Yes, well, this agreement won't cover you by the COA the way I read it. If you're a member of the COA, that's fine but the COA is not a party to this agreement. It's an agreement that binds some deputies and that's what concerns me. I think I understand where you're coming from. I'm just not sure about the ability of the Commission to certify this agreement.

PN85

MR BAILEY: Well, virtually, all the deputies were given the opportunity to choose which one they wanted to join or to stay members of the CFMEU.

PN86

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that. I just don't follow at this stage and I'll need to think about it, why having a section 170LK agreement makes any difference because I need to have a look at the CFMEU agreement which I will do. Yes, Mr McCowan?

PN87

MR McCOWAN: Your Honour, if I could, I would appreciate even if we could have maybe an off the record discussion with you. I mean, it's the first time that we've done anything like this and maybe it's - - -

PN88

THE SENIOR DEPUTY PRESIDENT: Me too.

PN89

MR McCOWAN: Maybe it might be beneficial for both of us to, particularly Mr Bailey, that we could have a talk about the benefits or otherwise.

PN90

THE SENIOR DEPUTY PRESIDENT: Yes. Well, we'll go off the record if you like.

OFF THE RECORD [10.31am]

RESUMES [12.14pm]

PN91

THE SENIOR DEPUTY PRESIDENT: I've had some discussions with the parties and I understand the concerns that the BHP Illawarra Coal, Elouera Colliery Certified Agreement 2001 which is a division 3 agreement made between the CFMEU and the company under a previous name. The concerns are that it potentially leaves uncovered by any agreement persons who are not members of the CFMEU. I needn't and I'm not in a position to in any event decide that issue. The agreement that is sought to be certified indicates that it is to bind Endeavour Coal Proprietary Limited in respect of Elouera Colliery, employees of Elouera Colliery who are employed as mine deputies and listed in appendix 5, I note there are 14 of them, and an employer who becomes bound in accordance with section 170MB of the Workplace Relations Act.

PN92

The agreement was voted on by 19 mine deputies who I'm told are no longer members of the CFMEU. Five of those are on fixed term contracts which expire in March of this year and accordingly they are not mentioned in appendix 4. However, as it binds the employer, it seems to me that it binds the employer in respect of those employees. In any event, my discretion is limited. If I'm satisfied as to certain things, I must certify the agreement and if I'm not satisfied, I must not unless certain provisos apply.

PN93

I'm satisfied that the part of the business to which the agreement applies is the Elouera Colliery business of Endeavour Coal Proprietary Limited which operates more than one coal mine and the part of the business is further confined to that of the employment of deputies who are a distinct organisational unit being in a supervisory capacity. Accordingly, I'm satisfied that the agreement is about matters pertaining to the relationship between an employer that's a constitutional corporation that's carrying on a part of a single business and employees employed by the employer in the part of the single business and whose employment is subject to the agreement.

PN94

I'm also satisfied that the agreement passes the no disadvantage test. It was made in accordance with section 170LK and a valid majority of relevant employees voted to approve it and that approval was genuine. I'm satisfied that the explanation of its terms was appropriate in the circumstances, that includes dispute settling procedures and that it specifies 6 July 2004 as the nominal expiry date which is not more than three years after the date on which the agreement comes into operation.

PN95

I note that that's also the nominal expiry date of the CFMEU Certified Agreement. I'm also satisfied that there are no reasons in section 170LU as to why I should refuse to certify the agreement. Accordingly, the agreement will be certified to operate in accordance with its terms from today's date and the appropriate instrument will issue shortly. Thank you, gentlemen, I apologise for delaying you.

ADJOURNED INDEFINITELY [12.19pm]