AG2003/9107, Transcript of Proceedings [2003] AIRCTrans 5032 (11 November 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER ROBERTS

AG2003/9107

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LS of the Act
by Camberwell Coal Pty Limited and Another
for certification of the Camberwell Coal
Mine Certified Agreement 2003

SYDNEY

3.20 PM, WEDNESDAY, 29 OCTOBER 2003

PN1

MR L. MUIR: I appear for Camberwell Coal, and with me I have MR K. GOOGE.

PN2

MR G. KELLY: I appear for the CFMEU with MR S. THOMPSON, MR G. BAILEY and MR C. BATES.

PN3

THE COMMISSIONER: It's your application, Mr Muir.

PN4

MR MUIR: If I just might start. I've been elected to do the speaking today, Commissioner. This is Mr Kelly's first appearance in the Commission. I've had some previous experience many years ago so you might have to bear with us while we go through the application today.

PN5

THE COMMISSIONER: That's no problem at all.

PN6

MR MUIR: Commissioner, this application comes before you under section 170LS and it's in order to ratify the Camberwell Coal Mine Certified Agreement 2003. Firstly I'd just like to give you a bit of background to the agreement and then go through some of the changes that have been made to the agreement and then just explain to you; you may have noticed on the agreement there's a number of letters of understanding that are attached to that agreement, just some background behind those.

PN7

Firstly just as a preamble to the agreement, Commissioner, the agreement is basically an extension of the Camberwell Coal Mine Certified Agreement of 2001 which has expired in September 2003. Just some explanation behind my comments in regards to it being extension. When the agreement came up for re-negotiation this year, it was in May of this year, the company put a proposal to the union that due to the financial pressures that were facing the company due to a larger than expected reduction in coal price this year, in its contract prices, and also the significant increase in the foreign exchange rate, that we weren't in a position to go into a negotiation of an enterprise agreement with the view of offering any wage increases.

PN8

In doing so, and I think it would be remiss of me not to mention, Commissioner, to the credit of the union that position was accepted by the union and we went on the negotiation process from that point. In doing so the company recognised that if we were to do that, that we weren't looking at a long-term agreement. Obviously from the employees' point of view it would be very hard for them to accept a long-term agreement with no increases. We agreed at a fairly early point in the negotiations that we would look at a short-term agreement and as such the agreement has a nominal 15 month term.

PN9

The position with the agreement was that we went through the negotiation process. There were some issues that required some clarification from the 2000 agreement where there was some confusion in wording and in some of the meanings of some of the clauses, and those issues were tidied up during the negotiation of the agreement and I'm pleased to report that in mid September we did reach agreement with the on-site lodge representatives.

PN10

I would just like to make note of a couple of the issues in the agreement that I think for both parties were issues that had some major significance and I just wanted to put them on the record today so that they are noted. If I could refer you firstly to page 17, clause 22.8, payment on termination. One of the issues that we did have between the parties was the valuation of accrued sick leave. Prior to this agreement in the 2001 agreement there was an arrangement whereby there was an amount of sick leave that had accrued up to a period up to 1998 that was valued at a different level to the annual salary rate. What we have done in this agreement, as you'll note from the words, that any sick leave that an employee has accrued will be paid out at the annual salary rate.

PN11

I'd then like to take you, Commissioner, to page 26. In regards to clause 38, superannuation, in terms of the last paragraph, the company has agreed to make a one-off lump sum payment of $625 into employees' superannuation contributions and that that payment will be made on the certification of the agreement. Further, on page 26 you'll note that there is a clause there, number 39, incentive scheme. That is a new clause, Commissioner, that has been introduced into the 2003 agreement. It wasn't in the 2001 agreement, and basically there is an incentive there on the achievement of a number of parameters for the employees to earn an incentive payment during the course of the agreement on the achievement of those parameters.

PN12

Then if I may just take you to the letters of understanding that are attached to the agreement. Just for your reference these letters are some of the understandings that the company has with the local lodge representatives and employees on-site. In the past there has been some matters of discussion and negotiation between the parties. In the past we've dealt with these in a number of ways but in the last agreement they were dealt with as letters of understanding that were attached to our agreement. I don't intend to go through them other than to say that they are as they are, as read, and they are the understandings that exist between the parties at this point in time.

PN13

THE COMMISSIONER: One small problem. It's my prima facie view that these letters of understanding can't form part of the actual agreement. Are you suggesting that they should form part of the agreement?

PN14

MR MUIR: No, I'm not, Commissioner. I'm just indicating that - - -

PN15

THE COMMISSIONER: Just to make it clear, as I understand it these letters of understanding will be placed on the file and may be relied upon by either party in any proceedings or negotiations if there's a dispute over those matters?

PN16

MR MUIR: That's correct.

PN17

THE COMMISSIONER: That's quite okay with me.

PN18

MR MUIR: In summary, Commissioner, in terms of the process that has gone through, we went through a lengthy negotiation process, a process of about 3 or 4 months which culminated in agreement between ourselves and the on site lodge officials. Following that agreement a copy of the finalised agreement was distributed to the workforce and in accordance with the Act the employees were in possession of that document for a period of at least 14 days.

PN19

There was a subsequent meeting held of all employees on 2 October, 2003 at which I had the opportunity to address all of the employees and then they were subsequently addressed by the union and my understanding from that meeting is that the agreement was voted on in the positive and it was accepted by the majority of people that attended that meeting. I understand that the documents have been served in accordance with the Commission requirements and as such would commend the agreement to you for ratification.

PN20

THE COMMISSIONER: I take it you rely on the statutory declarations as filed.

PN21

MR MUIR: Yes.

PN22

THE COMMISSIONER: The CFMEU, you agree with this?

PN23

MR KELLY: Yes, Commissioner, we do.

PN24

THE COMMISSIONER: Yes is sufficient unless you wish to say anything more?

PN25

MR KELLY: I did want to make a couple of comments if I could please, Commissioner. Commissioner, as Mr Muir said there was a number of opportunities for employees to comment on the agreement. The local lodge raised issues at their regular meetings. I was in attendance at the meeting on 2 October where the company made a brief presentation on the agreement followed by the union running through the agreement clause by clause and seeking comments from our members.

PN26

At the conclusion of that we sought a vote, there was 134 members who cast a vote. Only 16 of those were in the negative so the agreement has been significantly endorsed by the membership. Also Commissioner, the issue with regards to the letters of understanding, we concur with what's been said about how they should be treated. Thank you.

PN27

THE COMMISSIONER: Thank you. I've just been having a bit of a look at the grievance procedure, Mr Muir. It's a little unusual, it's a bit convoluted, isn't it as to how matters will be solved if they're not solved between the parties. But there is a reference here which now has no meaning. I'm just trying to find where I was actually. 31.4, the second line, it refers to the Industrial Relations Court of Australia. This is of course been defunct for some years, it doesn't exist.

PN28

So I have a suggestion for you. I think we can safely just strike the words, Industrial Relations Court of Australia, and then let the clause run on. Is the union agreeable to that?

PN29

MR KELLY: Yes, Commissioner.

PN30

THE COMMISSIONER: I'm a great believer in not having any nonsense in these documents. Given that the striking of those words purely reflects a matter of fact there's certainly no problems about it having not been voted upon.

PN31

This matter is an application by Camberwell Coal Pty Limited v Construction, Forestry, Mining and Energy Union for the certification of an agreement pursuant to section 170LS of the Workplace Relations Act 1996. The employer is carrying on a single business and is or was a party to an industrial dispute in C No 22841 of 1995.

PN32

On the basis of the submissions of the parties and the statutory declarations submitted in accordance with rule 52(2) I am satisfied that the agreement meets the relevant requirements of the Act. Consequently I will certify the agreement pursuant to section 170LT of the Act with effect from today's date and the agreement shall remain in force until 31 December, 2004. That concludes this matter. We are now adjourned.

ADJOURNED INDEFINITELY [3.35pm]