AG2003/9758, Transcript of Proceedings [2003] AIRCTrans 5492 (10 December 2003)

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TRANSCRIPT OF PROCEEDINGS

O/N 7933

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT MARSH

AG2003/9758

APPLICATION FOR AGREEMENT ABOUT
INDUSTRIAL DISPUTE (DIVISION 3)

Application under section 170LS of the Act
by Muswellbrook Coal Company Limited and
Others for certification of Muswellbrook No. 2
Open Cut Certified Agreement 2003

SYDNEY

2.10 PM, TUESDAY, 25 NOVEMBER 2003

PN1

THE SENIOR DEPUTY PRESIDENT: Good afternoon. I'll take appearances, please?

PN2

MR J. LAWSON: Your Honour, I appear for the applicant in this matter, that's the Muswellbrook Coal Company and with me is MR R. DAY and MR K. O'KEEFE.

PN3

MR G. KELLY: Your Honour, I appear for the CFMEU and beside me is the Lodge Secretary from Muswellbrook Coal, MR G. UPWARD.

PN4

MR I. MORRISON: Your Honour, if it please the Commission, I appear on behalf of the Australian Manufacturing Workers Union.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you. Who has got carriage of this, Mr Lawson?

PN6

MR LAWSON: Very briefly, I think, your Honour. The application has been filed. It's our submission that it's filed within time and all the necessary procedural steps have been taken. It is further our submission that all the requirements of Division 4 of the Act have been satisfied in terms of the terms of the agreement and the methodology of reaching agreement and there's nothing in the documentation or the process which offends or enlivens anything with respect to 170LU. Unless there's something that your Honour has as an issue, I haven't proposed to address the specific terms of the documentation beyond that which is addressed in the statutory declarations filed.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes, just a couple of things, in the procedure for avoiding disputes, step 4, the referral of the matter to the Commission. Are you in a position to indicate on the record whether that envisages conciliation and arbitration or just conciliation?

PN8

MR LAWSON: I do recollect this question being asked by yourself the last time we were certifying this agreement. The answer was yes, we are in that position and that is our understanding of the provision. One of the issues, your Honour, is there were some minimalist changes from the previous document, so those sorts of things we didn't specifically address.

PN9

THE SENIOR DEPUTY PRESIDENT: The only other issue - I can assume or I can be satisfied that there's no objectionable provisions or preference clauses in the agreement.

PN10

MR LAWSON: Not to the best of our understanding.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes, there's no discriminatory provisions. Maybe I should address this to Mr Morrison, but in the statutory declarations in 6.4, the AMWU has no reduction, whereas the other two statutory declarations, that of the company and the CFMEU, indicate that there may be some reductions, two reductions which are outlined to 4.3 through the annualisation into an annual salary of allowances and the taking of the meal break in 5.3, but that overall there's no reductions.

PN12

MR MORRISON: That's right, your Honour. The advice we received from the organiser at the site was that in the overall scheme of things, there's no net reduction in the terms and conditions of the employees.

PN13

THE SENIOR DEPUTY PRESIDENT: I see, yes, so you're agreeing with the other parties.

PN14

MR MORRISON: Well, basically, yes. It perhaps might be worded inappropriately by the organiser.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes, expressed somewhat differently, yes. All right, thank you. So, Mr Lawson, you can just confirm what's in the stat dec of the company and that is that there may be two provisions which may result in reduction in conditions but overall there's no reduction in the overall terms and conditions.

PN16

MR LAWSON: Indeed, we would go so far as to not only agree with the two points that you mentioned, but also to say that, on balance, the others are far in excess of the impact of any of those reductions. So there is a net gain as distinct from any reduction which would need you to go to the public interest test about reductions.

PN17

THE SENIOR DEPUTY PRESIDENT: Yes, so there's no difficulties with the no disadvantage test.

PN18

MR LAWSON: Does that answer your issue sufficiently?

PN19

THE SENIOR DEPUTY PRESIDENT: Yes, it does, thank you, very much.

PN20

MR LAWSON: If you have no other matters, we simply formally request that the agreement be approved. What we do in the process just before you or anyone else has any comment, is just place on appreciation the recognition of the assistance and co-operation of those at the other end of the bar table and all of the joint working party representatives in reaching this outcome on this occasion.

PN21

THE SENIOR DEPUTY PRESIDENT: That's excellent, that's very pleasing. I appreciate that. I'm sure the unions do too. It's very good to see. Yes, thank you for that, Mr Lawson. Mr Kelly?

PN22

MR KELLY: Thank you, your Honour. I just have a couple of comments I would like to make. Your Honour, this is a two year agreement and it is, in essence, the same agreement that was here last time before yourself, I believe and I think that's testimony to the benefits that have been obtained by both the company and the employees from the previous agreement and hopefully into the future. Your Honour, this agreement includes a communication process with a mechanism for resolving disputes which is clause 2.2. On 29 September, I conducted a meeting with the rank and file members and sought their support for the offer in principle. The following day the company issued a document to all employees which outlined the offer and the certified agreement.

PN23

Then on 16 October, I conducted a meeting of employees where I went through the offer and each clause of the agreement, clause by clause, highlighting particularly any changes and when required answered any questions. I did that as well as the Lodge Secretary and the other members of the negotiating team - answered the questions. Following some debate, a valid majority endorsed the agreement and again the testimony to it, we only had actually one person who voted against the agreement and his answer was that there always had to be one. So I think it's testimony to the fact that the agreement is a good agreement.

PN24

Your Honour, the company also provided the employees with a couple of letters about the Muswellbrook No.1 Open Cut Mine which may be approved somewhere down the track and also how they're going to go about using supplementary labour, none of which we intend to table. We just make that point to you that from our point of view that's all part of the offer. It gave some certainty to some people because your Honour, you may not be aware that unfortunately as part of this agreement there will be a reduction in the manning of Muswellbrook No.2 because of the nature of the deposit.

PN25

That will see eight employees taking VRS and seven employees being forcibly made redundant, that will be occurring through the low flow process which is last on first off and that's being done in the main in a difficult circumstance with the support of the union employees and the company. We would also pass on our thanks to the company at the other end for the effort they've put in to try and resolve it. You would be aware that there is a matter coming up which is more of a clarification from our point of view than anything else which will finalise that process if need be. Your Honour, if it pleases, that would be our submission.

PN26

THE SENIOR DEPUTY PRESIDENT: Yes, thank you very much, Mr Kelly. Mr Morrison?

PN27

MR MORRISON: Yes, your Honour, similarly the AMWU supports the certification of the agreement from today. The AMWU submits that the agreement meets the requirements of the Workplace Relations Act, the rules and regulations and those of the Commission and therefore requests the certification as sought. Thank you.

PN28

THE SENIOR DEPUTY PRESIDENT: Thank you very much for the submissions. There's nothing further? No. Very well on the basis of the statutory declarations that have been filed in support of the proposed agreement in accordance with the rules of the Commission and having regard to the terms of the agreement itself and the submissions made in the hearing this afternoon, I am satisfied that the statutory requirements of the Workplace Relations Act 1996 governing 170LS Division 3 agreements have been met. The agreement will be certified. It will be known as The Muswellbrook No.2 Open Cut Certified Agreement 2003. It will come into force from today's date and remain in force for a period of two years.

PN29

The parties are to be commended for the way in which they've gone about negotiating this agreement. The certificate giving effect to the certification can be issued in due course. I've just signed it. The Commission stands adjourned. Thank you for your attendance.

ADJOURNED INDEFINITELY [2.20pm]