AG2003/7561, Transcript of Proceedings [2003] AIRCTrans 4451 (3 October 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT MARSH

AG2003/7561

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Beltana Highwall Mining Pty Limited trading as
Beltana Highwall Mining and Another for
certification of the Beltana No 1 CFMEU
Certified Agreement 2003

SYDNEY

11.00 AM, FRIDAY, 19 SEPTEMBER 2003

PN1

MR N. TURNER: I appear for the company. With me today is MR JOHN ROMCKIE. I seek leave to appear.

PN2

THE SENIOR DEPUTY PRESIDENT: Mr Murray?

PN3

MR MURRAY: We would oppose the appearance of legal representation in accordance with section 42 of the Act. I think the parties are well aware of what 42 makes reference to. It makes reference to special circumstances. We put to you in the certification of an agreement, there are no special circumstances. The Act goes on to say the Commission needs to be satisfied that the party can only be adequately represented by counsel, solicitor or agent.

PN4

Now, what we have today is we have the manager of the operation here, who is the other part author, if you like, of the document, well versed in it, quite capable to represent the company during the course of these proceedings and I do not think anybody can make a case that there are special circumstances where the company could only be represented by legal counsel. We certainly have not got any legal counsel or trained personnel in that degree on our side of the table and we don't feel disadvantaged, if it pleases the Commission.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Turner.

PN6

MR TURNER: The union was put on notice today that we were representing the company. This is the first that we have heard that they were going to object.

PN7

MR MURRAY: We always object.

PN8

MR TURNER: Mr Romckie is not an advocate. Yes, he is a representative of the company but he is a mine manager. He is inexperienced in the Commission. In relation to the matter on before you there could be - there are particular issues with the agreement which may need legal argument and there is also the issue that the union itself has not lodged a statutory declaration and there may be legal argument that goes to that. They have not indicated on the record whether they actually oppose the certification of the agreement today but they have previously refused to file a stat dec and there may be legal argument in relation to that as well and how that is interlinked with the provisions of the Act. On those bases, I seek leave.

PN9

THE SENIOR DEPUTY PRESIDENT: Leave is granted. Who has got the carriage of the matter?

PN10

MR TURNER: It was the company's application.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes, it was, thank you.

PN12

MR TURNER: If the Commission pleases, this is an application pursuant to division 2 of the Workplace Relations Act to certify a section 170LJ agreement. The agreement is made between Beltana Highwall Mining Pty Limited and the CFMEU. It covers the production and engineering work carried out at Beltana Mine. Specifically, clause 4.2 of the agreement sets out the parties to be covered by the agreement and I just make reference to that. There has been a statutory declaration filed by John Romckie on behalf of the company which sets out the statutory requirements which I assume your Honour has read.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes, I have. You can proceed on that basis.

PN14

MR TURNER: It fulfils the requirements of the Act in relation to the 14 days notice, at least 14 days for the agreement and also in relation to consultation with employees about the terms of the agreement, etcetera. We say that the agreement clearly passes the no disadvantage test in all respects. To the extent that we have to, we seek to vary rule 48(2). As noted previously, the union has not, at this stage, filed a statutory declaration.

PN15

MR MURRAY: Yes, we have.

PN16

MR TURNER: Have you, when was that? We were instructed only yesterday that they have not so if they have, that is fine. Well, then we don't need to go to that section. There is one issue with the agreement, your Honour, which I do wish to raise with you and that is in relation to clause 6.3 of the agreement, specifically on page 7, the wording:

PN17

If contractors are utilised to cut coal, the contractor will, as a minimum, employee people under the conditions of the P&E Award.

PN18

Without speaking for my friend, he will make his own submissions on that point, we say that based on recent decisions, and one in particular of Senior Deputy President Ross, that appears to be on the jurisdiction of the Commission on the basis it is not employee-employer relationship and we seek to certify the agreement but with that wording deleted from the agreement. We say the Commission can do that on the basis that it is beyond jurisdiction but you still have the power pursuant to the Workplace Relation Act to certify the agreement.

PN19

There has been an agreement reached between the parties that letters will be exchanged along the lines of that when the company is seeking tenders from contractors to perform the cutting of coal, as part of that tender process, they will require the contactor's employees to be paid under the conditions of the minimum of the P&E Award. On that basis, we seek to have the agreement certified. Unless there is anything in particular your Honour would like me to take you to - - -

PN20

THE SENIOR DEPUTY PRESIDENT: Just clarify, on the record, in 7.2.5 the referral of a dispute in line with the dispute resolution procedure to the Commission is for the Commission to participate in conciliation, it does not provide an arbitral role.

PN21

MR TURNER: That is correct.

PN22

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Yes, Mr Murray.

PN23

MR MURRAY: Your Honour, we are seeking that the Commission certify the agreement today. The agreement has come about after a lengthy negotiation and long bitter struggle of dispute at this operation. There have been a number of happenings, if you like, or events that are associated with the document but before we leave the document, I will concur with the comments made by the legal representative of the company, in the change we are seeking to remove the second-last paragraph of 6.3 on the basis that we do have an agreement between the parties, a, to remove that reference and to have an exchange of letter that gives undertakings and the tendering process, the company shall require contractors to employ their people under terms no less than the P&E Award.

PN24

Some other minor in dealing with the document, your Honour, in reference to the definitions there are some words in there in 2.8 that I think are a bit of a hangover from the old agreement, but whilst it makes a definition of other awards, there is no reference in the agreement to the words "other awards", so it just an extra I suppose. There is a typo in 13.8 with the word "included", should be just "include".

PN25

There is also a very important attachment in attachment 2, which is the bonus attachment. Now, that bonus attachment was drawn up and agreed between the parties on the basis of the criteria in the budget that the mine expects to work to, even though we have agreed to a no extra claims clause in clause 30. It is understood between the parties that if the company changes the barriers of the criteria in how attachment 2 is arrived at the parties will sit down and re-discuss how that can be catered for in accordance with the changes made by the company.

PN26

Your Honour, as I indicated there was certainly some disagreement between the parties during the course of reaching this agreement today and as part of the settlement, there was a letter sent from the company acknowledging that any disciplinary action that was taken by the company on any individual in the course of this dispute would be removed from any records, in fact, the terms that we would with a clean sheet was agreed to between the parties and I wish to table that letter for the purposes of the record.

PN27

THE SENIOR DEPUTY PRESIDENT: Yes, I will mark that as an exhibit. That will be placed on the file as an exhibit.

EXHIBIT #M1 LETTER SENT FROM THE COMPANY

PN28

MR MURRAY: As I have indicated the letter is self-explanatory.

PN29

THE SENIOR DEPUTY PRESIDENT: Yes.

PN30

MR MURRAY: It does make reference to the "clean sheet". We certainly are prepared to and give that commitment to pass behind us and move on with life and get on with the job of producing coal. Your Honour would recall that during the course of this dispute that also the question of coverage came up. I can report to the Commission that - - -

PN31

THE SENIOR DEPUTY PRESIDENT: I do recall that.

PN32

MR MURRAY: I can report to the Commission that, yes, the question of coverage has been dealt with between the parties and an understanding has been reached that the step up deputies have the option of being covered by this agreement. In fact, they have the option of being covered by this agreement - the individual has the option, not the company forcing the individual - and there is currently some letters taking place to recognise people going from one contract of employment to another contract of employment.

PN33

We haven't yet signed off on the exact terms of those letters, but it is the clear understanding between the parties that the individuals will have that option, if they wish to under the terms of this agreement. With those comments, yes, I would put it to the Commission that the agreement does meet the no disadvantage test. It meets all the test of the Commission and it should be certified today.

PN34

THE SENIOR DEPUTY PRESIDENT: Thank you. Any further submissions?

PN35

MR TURNER: Just one or two. We confirm the letter that was provided but that speaks for itself and we won't go any further on that.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes.

PN37

MR TURNER: In relation to the no extra claims and the change to the performance scheme I would confirm that that is the approach that the company will take, but if things do change that it will be re-negotiated, however, just to make it clear that that does not mean that further protected industrial action can be taken in relation to that point. I just wanted to make sure that the Emwest decision does not apply, that they have agreed to sit down and re-negotiate the terms, but not open up the further protected industrial action. The agreement is the complete basis.

PN38

In relation to the coverage issue, just to clarify one thing, on my instructions the option for existing employees to choose which agreement they would be intended to be covered by, there was a date upon which they had to make that election and once that date has passed, then that election can no longer be made. In relation to new employees, of course as your Honour would recall, there is also a staff agreement which can cover the employees and, again, either agreement can cover staff or supervisors, etcetera, and that leaves open the company allowing for new employees to choose which agreement they will be covered by.

PN39

THE SENIOR DEPUTY PRESIDENT: That is it, yes.

PN40

MR TURNER: Apart from that - - -

PN41

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Murray.

PN42

MR MURRAY: Just to clarify that coverage issue, your Honour, as I said, the parties have not agreed to the terms of the letter. We received the letter that was obviously legally written and didn't cater for the protection of the individuals. In fact, we didn't have an instrument until today, until this matter is certified for the individuals to have an option on and the expiry date that was put on the letter, pre-dated the certification of the agreement, so I would take it that the date that the company had insisted upon was impossible to meet, we had no instrument for them to have an option on that until today and we would be seeking some clarification that the principle that was agreed between the parties, that there is an option for existing individuals to be employed under the terms of this industrial instrument, will still be on it.

PN43

THE SENIOR DEPUTY PRESIDENT: Are you seeking that now?

PN44

MR MURRAY: I'm seeking that now. Your Honour, the last comments from the legal representative of the company said that the terms were covered by a date, that date has gone.

PN45

THE SENIOR DEPUTY PRESIDENT: Yes.

PN46

MR MURRAY: There was no ability for people to be employed - - -

PN47

THE SENIOR DEPUTY PRESIDENT: Because the agreement had not been certified.

PN48

MR MURRAY: We had no instrument.

PN49

MR TURNER: I think I can second this. The company is prepared - so there is no misunderstanding - the company is prepared to extend the time frame from two weeks from today, which it would seem was going to be the certification date, two weeks from today to make that election. I would assume that that puts at ease - works out that particular issue - so two weeks from today they have that election - existing employees have that election of whether to fall within this agreement that will be certified today, or stay on the staff agreement.

PN50

THE SENIOR DEPUTY PRESIDENT: Does that meet your - - -

PN51

MR MURRAY: Your Honour, we principally have no problem with that extension time, but I put this rider on it, that providing that the terms in the letter that are being put to the individuals to change from one contract of employment to another does not place the individual's continuity, or any other of his employment rights, at any sort of jeopardy in terms of the letter that they are proposing.

PN52

MR TURNER: Well, that is fine, but it cannot anyway, of course, because they are still employed by the same legal entity, so in terms of continuity of service, there won't be an issue, but that is not an issue.

PN53

THE SENIOR DEPUTY PRESIDENT: Yes. No further submissions? Application has been made for the certification of proposed agreement to be known as the Beltana No 1 CFMEU certified agreement 2003 subject to one qualification, I am satisfied on the basis of the submissions made in today's proceedings. The reading of the statutory declarations have been filed by both parties to the agreement and the terms of the agreement itself that the requirements of the Act governing 170LJ division 2 agreements have been met. The one qualification relates to the provision in clause 6.3 which reads:

PN54

If contractors are utilised to cut coal, the contractor will, as a minimum, employ people under the conditions of the P&E Award.

PN55

I concur with the submissions of the party that on the basis of the current state of authority of the Commission that that provision is beyond jurisdiction. It will be deleted from the proposed agreement. I am further satisfied that because that provision is beyond jurisdiction and will be deleted I have the power to certify the agreement as amended. The agreement will come into force from today's date, 19 September 2003 in the normal course for a period of 3 years. The certificate given effect to the certification will be issued in due course.

PN56

I am well aware that this - have been a lot of difficulties at Beltana No 1 mine. It is therefore gratifying that the agreement has finally been reached with the production employees and I trust that as the exhibit M1 said that not only will employee start with a clean sheet but relations generally will have that. So thank you for your cooperation. The Commission stands adjourned.

ADJOURNED INDEFINITELY [11.20am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #M1 LETTER SENT FROM THE COMPANY PN28