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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 10, 15 Adelaide St BRISBANE Qld 4000
(PO Box 13038 George Street Post Shop Brisbane Qld 4003)
Tel:(07)3229-5957 Fax:(07)3229-5996
TRANSCRIPT OF PROCEEDINGS
O/N 2412
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER BACON
C2004/1925
CONSTRUCTION, FORESTRY, MINING AND
ENERGY UNION
and
NORTH GOONYELLA COAL MINES LTD
Application under section 170LW of the Act
for settlement of dispute re management's
decision to terminate the employment of
Mr Brett Milburn
BRISBANE
9.33 AM, FRIDAY, 26 MARCH 2004
PN1
THE COMMISSIONER: Can I take the appearances, please.
PN2
MR T. CONROY: I appear on behalf of the CFMEU. With me, two gentlemen you're probably familiar with, GLENN POWER and TOM HALL.
PN3
THE COMMISSIONER: Thank you, Mr Conroy.
PN4
MR A. ANDERSON: If the Commission pleases, Anderson, A. I'm a solicitor from Clayton Utz and I seek leave to appear on behalf of the respondent in this matter, North Goonyella Coal Mines Pty Ltd. I have with me today MELINDA SHINKEL, solicitor from Clayton Utz, and also MR REID, who I'm sure you're also familiar with, Commissioner, the HR Manager from North Goonyella.
PN5
THE COMMISSIONER: Thank you, Mr Anderson. Any objection to the application for leave?
PN6
MR CONROY: Commissioner, the company wrote to me the other day forecasting they'd be here with the team from Clayton Utz, and I advised them there would be no objections.
PN7
THE COMMISSIONER: Very well. Thank you. Leave is granted, Mr Anderson.
PN8
MR ANDERSON: Thank you, Commissioner.
PN9
THE COMMISSIONER: Mr Conroy?
PN10
MR CONROY: Commissioner, there's probably a preliminary point that needs to be dealt with. I didn't intend to give any opening submissions, as such, before calling evidence, but in addition to Mr Milburn, who we've provided a witness statement for and provided the Commissioner with a signed statement yesterday, I had intended to call Mr Hall in response to some material that the company have submitted to provide evidence on that. I just advised Mr Anderson of that immediately prior to the commencement of the hearing, so I felt it appropriate that I should raise it now, in case the company have some objection that they want to raise now.
PN11
THE COMMISSIONER: Very well. Thank you. Any objection, Mr Anderson?
PN12
MR ANDERSON: There is an objection to that, Commissioner. I've only just become aware of it five minutes ago from Mr Conroy, and I understand that, in accordance with directions, affidavit material was to be filed and served in this matter some time ago. Those directions certainly haven't been complied with with respect to any evidence that's going to be called from Mr Hall.
PN13
THE COMMISSIONER: Other than the fact that - well, before I say anything. Firstly, Mr Hall, it might be appropriate if you could wait outside, please. What's the evidence go to, Mr Conroy?
PN14
MR CONROY: Commissioner, it goes to, well, the CFMEUs understanding of clause 6.2 of the certified agreement and, particularly, in the company's outline of submissions they've raised argument with respect to the meaning of the clause and, particularly, the work that the word "may" has to play, and his evidence is giving his understanding, as one of the people who negotiated the certified agreement, of what that clause means. So it's primarily in response to - - -
PN15
THE COMMISSIONER: But that's not evidence of fact.
PN16
MR CONROY: No. No, I - - -
PN17
THE COMMISSIONER: That's an evidence of what Mr Hall believes - - -
PN18
MR CONROY: That's correct.
PN19
THE COMMISSIONER: - - - was in the agreement he negotiated, and that's the matter in contest. I mean - - -
PN20
MR CONROY: It's - - -
PN21
THE COMMISSIONER: It doesn't take us anywhere.
PN22
MR CONROY: Well, I think it - what it does do is indicate one of the party's understanding of what the clause means and what the word - - -
PN23
THE COMMISSIONER: And that's clear from the submissions that no doubt will be made about what the clause means.
PN24
MR CONROY: So you're saying it's of no relevance what the parties understood the clause to mean, Commissioner?
PN25
THE COMMISSIONER: No, I'm not saying that at all. What I am saying is that it's clear that the CFMEU has a view of what this clause means.
PN26
MR CONROY: That's right.
PN27
THE COMMISSIONER: Evidence establishes facts.
PN28
MR CONROY: Yes.
PN29
THE COMMISSIONER: Now, there's no factual basis, other than what Mr Hall understood - - -
PN30
MR CONROY: Certainly.
PN31
THE COMMISSIONER: - - - at the time the agreement was negotiated, but that doesn't take us anywhere. I might have different views with Westpac about my mortgage - - -
PN32
MR CONROY: There's every chance you do, Commissioner.
PN33
THE COMMISSIONER: - - - but, at the end of the day, I've signed it and if there's a contest between Westpac and I about that, then a court would sort that out for us, and it's not a matter of fact. It's not a matter of evidential basis that Mr Hall is going to tell us about. He's just going to tell us what it is he believes he signed. That's clear on the submissions.
PN34
MR CONROY: I accept what you're saying. The point is that what is in contest is the meaning of the clause - - -
PN35
THE COMMISSIONER: Right.
PN36
MR CONROY: - - - and I'm simply attempting to introduce what the workforce's understanding of the meaning of that clause was. That aside, I do understand what you're saying with respect to it a matter being for submissions. So, look, I won't try and convince you any other way. I'll just make the point, and I guess it's by the way, I don't think there can be any suggestion that we haven't complied with directions. You didn't give any directions - - -
PN37
THE COMMISSIONER: No, no. There was no directions for rebuttal evidence. That's right.
PN38
MR CONROY: Yes.
PN39
THE COMMISSIONER: I don't - well, Mr Anderson, do you have anything to say about all of that?
PN40
MR ANDERSON: I do, Commissioner. The union has put together an outline of submissions and, also, affidavit material on this matter and, from what I'm hearing from Mr Conroy, if those matters were going to be raised by the union, they could well have been raised in the outline already filed and served in this matter. It could already have been filed - already have been raised in affidavit material and given the company at least an opportunity to object to any evidence that might - - -
PN41
THE COMMISSIONER: I don't think that's so. I don't think that's so because the material from the company, at least from my purposes I only received later yesterday, and it's the first time I can recall that the issue about what the clause means in the certified agreement came into focus.
PN42
MR ANDERSON: Well, my understanding of this whole application is the interpretation of clause 6.2 of the agreement, and in the clause it clearly uses the term "may", despite - - -
PN43
THE COMMISSIONER: I'm not arguing about what the clause says. All I'm saying is that whether or not the CFMEU knew that that was going to be an argument by the respondent didn't become clear to me until yesterday, when I received the company's submissions.
PN44
MR ANDERSON: I accept that, Commissioner.
PN45
THE COMMISSIONER: So I don't know how they could have put in rebuttal evidence on a point of contest that they didn't know existed.
PN46
MR ANDERSON: No. No. I accept that as well. All I'm saying is that if they wanted to raise submissions about the wording used, it was open to them to raise those submissions in their outline initially.
PN47
THE COMMISSIONER: Which they did.
PN48
MR ANDERSON: Well, they've made a statement in their submissions in relation to the clause without really referring to the words themselves. Anyway, Commissioner, the point of evidence from Mr Hall is objected - - -
PN49
THE COMMISSIONER: Yes. In any event, I'm not going to allow Mr Hall's evidence because I don't think it's evidence of fact. It's evidence of what - interpretation of a document which, obviously, Mr Hall is entitled to his view but, at the end of the day, I don't think it's going to particularly assist me.
PN50
MR CONROY: Commissioner, could you stress to Mr Hall to generally keep his views to himself in general from now on. Commissioner, I hear what you're saying and of course will comply with that, and I'll do my best next time to be a mind reader.
PN51
THE COMMISSIONER: Perhaps we can get Mr Hall back.
PN52
MR CONROY: Well, Commissioner, after that, I might call Mr Milburn.
PN53
PN54
MR CONROY: Mr Milburn, could you state your full name and address just for the record, please?---Brett John Milburn (address supplied)
PN55
And, Mr Milburn, you've prepared and signed a witness statement of evidence in this matter?---Yes, I have.
PN56
Do you have a copy of that with you?---Yes, I have.
PN57
And it's a true and accurate statement?---Yes.
PN58
Commissioner, I seek leave to tender it as an exhibit.
PN59
THE COMMISSIONER: I don't have an executed copy of the affidavit.
PN60
MR CONROY: My apologies.
PN61
THE COMMISSIONER: I'll mark Mr Milburn's statement as exhibit CFMEU1.
PN62
MR CONROY: Commissioner, that represents our evidence-in-chief, thank you.
PN63
**** BRETT JOHN MILBURN XXN MR ANDERSON
PN64
MR ANDERSON: Mr Milburn, you have a copy of your witness statement before you?---Yes.
PN65
That's a witness statement which was signed by you on 25 March. Is that correct?---Yes.
PN66
Mr Milburn, are you aware of the witness statement in your name filed in the Commission on 9 March?---Yes, I suppose. Yes.
PN67
Okay. You commenced employment with North Goonyella in your permanent position on 18 October 2003?---Yes.
PN68
That's correct? And you commenced a period of leave from 15 January 2004. Is that correct?---Yes.
PN69
When did you first apply for leave?---I think it was mid-December I think from my recollection.
PN70
Okay. So your recollection is that you applied for leave in mid-December?---Yes. I can't remember the exact date but, yes.
PN71
Well, I can assist. Commissioner, I wish to show the witness a document attached to an affidavit of Sonya Olsthoorn. Mr Milburn, I've taken you to exhibit SO-4 of an affidavit of Sonya Olsthoorn which has been filed in these proceedings. Have you seen this affidavit before today?---This one here?
PN72
That affidavit that's before you?---Yes, I have. Yes.
PN73
You'll see that SO-4 attaches a number of applications for leave. Is that correct?---Yes.
**** BRETT JOHN MILBURN XXN MR ANDERSON
PN74
If you go to the third leave form?---Mm.
PN75
Does your signature appear on that page?---Yes, it does.
PN76
Okay. And the date next to your signature is 6 November 2003?---Yes.
PN77
Okay. Is it the case that you signed the application for leave on 6 November 2003?---Well, that's what it says on this one but it wasn't my - yes - - -
PN78
Okay. Thank you?--- - - - my original one, yes.
PN79
All right. Now, if you look below your signature at least it appears that the company has approved it. There's a signature underneath where it's got shift - above, sorry, where it's got shift manager, and that's dated 14 November 2003?---Yes.
PN80
So it seems that your original application for leave in January '04 was made on 6 November '03?---Mm.
PN81
Is that correct?---Yes.
PN82
Thank you. Now, Mr Milburn, in the unsigned witness statement which has been filed by the union on 9 March 2004 in these proceedings, you state in paragraph 2:
PN83
My last shift before going on annual leave was on either 14 or 15 January 2004.
**** BRETT JOHN MILBURN XXN MR ANDERSON
PN84
You've now stated in the witness statement filed or tendered this morning as exhibit 1 that:
PN85
My last shift before going on annual leave was on 10 January 2004.
PN86
Which was it? Was it 14 or 15 January or 10 January?---The 10th.
PN87
Is there any reason why there's a difference between the witness statement filed in these proceedings in accordance with the directions of the Commission in the witness statement tendered as an exhibit this morning?---No, I just went through my records and it was - the 10th was my last shift.
PN88
Thank you. Mr Milburn, you had a telephone conversation with Miss Olsthoorn on 16 January 2004?---16th, yes.
PN89
You did have a telephone conversation on the 16th?---Oh, it was Friday. I don't know whether it was the 16th. Yes.
PN90
All right. Well, if you can have a look at your witness statement that you have before you?---Yes.
PN91
Paragraph 3?---Mm.
PN92
It starts off:
PN93
On 16 January 2004 I was travelling to Brisbane by motor vehicle. At approximately 1 pm that day I received a telephone call from Ms Sonya Olsthoorn.
**** BRETT JOHN MILBURN XXN MR ANDERSON
PN94
Is that correct?---Yes.
PN95
So you had a telephone conversation with Miss Olsthoorn on 16 January?---Yes.
PN96
Okay. Thank you. So you said in your statement that you were travelling to Brisbane by motor vehicle?---Mm.
PN97
Is it the case you were using a mobile phone to have a telephone conversation?---Yes.
PN98
So you received a telephone call on your mobile phone?---Yes.
PN99
All right. Do you have a telephone at home?---Yes.
PN100
What's your home telephone number?---4941 7514.
PN101
Okay. Did you have your home telephone number diverted to your mobile?---I think we may have, yes.
PN102
You may have. Okay?---Because we were on holidays.
PN103
Okay. In your witness statement which has been filed in these proceedings on 9 March 2004 you state in paragraph 3:
PN104
On 16 January 2004 I was travelling to Brisbane by motor vehicle. At approximately 6 pm that evening I received a telephone call from Ms Sonya Olsthoorn from North Goonyella Coal Mines Limited.
**** BRETT JOHN MILBURN XXN MR ANDERSON
PN105
In the affidavit - sorry, in your witness statement which was tendered as an exhibit this morning, you state that you received a telephone call at approximately 1 pm that day?---Yes.
PN106
Is there any reason for the difference in time between 6 pm and 1 pm?
PN107
MR CONROY: Commissioner, I object to these questions. I just don't see the relevancy with respect to this matter.
PN108
MR ANDERSON: I'm just trying to get an accurate record of the evidence, Commissioner. I've got a witness statement before me that was filed on 9 March 2004 and this is the witness statement which I've relied on in preparing for these proceedings. This morning through the witness a further witness statement has been tendered as an exhibit and I have only seen this witness statement five minutes before appearing. I'm just trying to clarify with the witness exactly what his evidence is, given the inconsistencies between the two.
PN109
THE COMMISSIONER: I'm happy to allow the question. The material is relevant. I mean, the discrepancies go to credit and capacity to recollect.
PN110
MR ANDERSON: Mr Milburn, I just asked you if there was any reason why in your witness statement filed in these proceedings on 9 March which states that you had a telephone conversation at approximately 6 pm on 16 January; why there's a difference now in your witness statement tendered this morning which says you had a telephone conversation at 1 pm?---It's the same as before; just going through my files and that, of the phone calls. My notes and - - -
PN111
What notes are they, Mr Milburn?---I had noted on my mobile phone what time the phone call was approximately.
**** BRETT JOHN MILBURN XXN MR ANDERSON
PN112
Right. So the notes you refer to in your evidence is a reference to your mobile phone record?---Yes.
PN113
Okay. And is it the case that your mobile phone record indicated that you received a telephone call at 1 pm?---Approximately.
PN114
All right. Did you have reference to your mobile phone, though, in swearing your witness statement before these proceedings?---My first - my first - - -
PN115
Well, in either one?---In the second one, yes, I did.
PN116
MR CONROY: Commissioner, could we just be clear that the sworn statement is his second final statement.
PN117
THE COMMISSIONER: Yes.
PN118
MR CONROY: I just don't want the witness being - it being put to him that he had a sworn statement provided and served on 9 March.
PN119
MR ANDERSON: Mr Milburn, did you have any reference to your mobile phone before completing your witness statement which has been tendered into evidence this morning, in relation to the time of the telephone call?---My first reference or this - the second - the signed reference.
PN120
No, your second reference in paragraph 3 of the witness statement that you have before you. Did you have any reference to your mobile phone?---I don't - I don't understand what you're - - -
PN121
Well, Mr Milburn, you've told me in evidence that you had reference to notes and that's your explanation for why - - - ?---Yes.
**** BRETT JOHN MILBURN XXN MR ANDERSON
PN122
- - - there's a difference between information contained in an unsworn witness statement which was filed on your behalf by the union in these proceedings on 9 March 2004 and the witness statement that has now been tendered into evidence. Your explanation is that you had reference to notes?---Yes.
PN123
Is that correct?---Yes.
PN124
And you gave evidence that when you say notes you meant a reference to your mobile phone?---Yes, yes.
PN125
Correct. So I'm just simply asking you whether you had the reference to your mobile phone for the purposes of determining that telephone call occurred at approximately 1 pm?---Yes.
PN126
Thank you. When you said notes earlier, is it only the mobile phone you had reference to?---Yes.
PN127
Okay. Mr Milburn, do you still have the witness statement of Sonya Olsthoorn there before you?---No.
PN128
That was the document I handed to you where we looked at the applications for leave?---Yes.
PN129
All right. Can I ask you, please, to go to the last exhibit of that affidavit. It's exhibit SO7. Go right to the back. Sorry, it's the second last exhibit. Sorry, Mr Milburn. Have you found that exhibit, SO7?---Yes.
PN130
Okay?---Yes.
**** BRETT JOHN MILBURN XXN MR ANDERSON
PN131
Now, behind the exhibit marking is some telephone records. Have you found those?---Yes.
PN132
If I can ask you to go to the third page of the telephone records. Have you got the third page of those telephone records?---Yes.
PN133
Can I ask you to go to entry on the left-hand side 38408, which relates to a telephone call on 16 January?---Yes.
PN134
If you move across a couple of columns there's a telephone number, 07 4941 7514. Is that your home telephone number?---Yes.
PN135
What is the time which is next to that telephone number; to the left of that telephone number?---11.43.
PN136
Could that have been the time of the telephone discussion that you had with Ms Olsthoorn on 16 January?---Yes.
PN137
Okay. If you can go two entries down to entry on the left-hand side 38411. That also relates to a telephone call on 16 January. There's a telephone number 07 4941 7514. That's your telephone number, Mr Milburn?---Yes.
PN138
Yes. And the time of that call was 12.07 pm. Do you agree with that?---Yes.
PN139
Was that a second telephone call that you had - telephone discussion that you had with Ms Olsthoorn?---Yes.
PN140
On 16 January?---Mm.
**** BRETT JOHN MILBURN XXN MR ANDERSON
PN141
Mr Milburn, is there any reason why the second telephone discussion which I've just taken you to in the telephone records is not referred to in your witness statement?---No.
PN142
So you've referred in paragraph 3 of your witness statement to a telephone call. Are you now saying there's been two telephone discussions?---Yes.
PN143
Okay. And you agree that those telephone discussions occurred at about 11.43 am and the second one at about 12.07 pm?---Yes.
PN144
Okay. Mr Milburn, can I have that affidavit back, please. Now, Mr Milburn, we've established that you received a telephone call from Ms Olsthoorn at about 11.43 am on 16 January, which is a Friday. And we've established that you received that on your mobile phone?---Yes.
PN145
You've given evidence that you had your home telephone diverted to your mobile phone. Okay. And that you were travelling to Brisbane at the time to give evidence in your witness statement?---Yes.
PN146
That's when you received the call?---Mm.
PN147
Now, during that telephone conversation did Ms Olsthoorn tell you that you were still on probation?---I think - my recollection is she said that my probation period was up that week, yes.
PN148
That your probation period was up that week?---Three months probation period ended at the end of this week, yes.
PN149
All right. Did Ms Olsthoorn tell you that the company had decided not to confirm your employment?---Yes.
**** BRETT JOHN MILBURN XXN MR ANDERSON
PN150
Did Ms Olsthoorn tell you that this resulted in your employment being terminated that day?---Yes.
PN151
Did Ms Olsthoorn tell you that the company would pay you a roster block in lieu of notice plus accrued entitlements?---I honestly can't recollect it. Because we were on the - obviously travelling and the reception was, you know, somewhat jaded. That's why Sonya give me the second phone call because it cut out.
PN152
Did the phone cut out?---Yes, the phone cut out - the reception.
PN153
Okay. All right. Do you recall - have you got any recollection that she might have told you that there was going to be a payment made for the one roster block in lieu of notice?---I can recollect something - something about payments. I can't tell the exact - what was said about them.
PN154
All right. That's fine. And did you actually tell Ms Olsthoorn you were travelling that day?---Yes.
PN155
All right. Did Ms Olsthoorn ask you where you were staying?---Yes.
PN156
Why did she ask you where you were staying?
PN157
THE COMMISSIONER: How would he know? How would he know why she asked him where he was staying?
PN158
MR ANDERSON: Very good point, Commissioner. I will withdraw that question.
**** BRETT JOHN MILBURN XXN MR ANDERSON
PN159
So you've just given me evidence that she asked you where you were staying. And what did you tell her?---I told her where I was staying.
PN160
And where was that?---Breakfree Resort.
PN161
Breakfree Resort?---Yes.
PN162
Is that in Surfers Paradise?---Yes. Yes.
PN163
All right. Did Ms Olsthoorn tell you that she wanted to fax a letter to you?---Yes.
PN164
Okay. Did Ms Olsthoorn tell you that - sorry. Did Ms Olsthoorn ask you for the fax number for the Breakfree Resort?---Yes.
PN165
And did you know the fax number?---No.
PN166
No. Okay. During the conversation did you tell Ms Olsthoorn - sorry, did you ask Ms Olsthoorn whether this was definitely the end?---Yes.
PN167
Did she reply that it was?---Yes.
PN168
Okay.
PN169
THE COMMISSIONER: You will have to speak up, Mr Milburn?---Yes.
PN170
MR ANDERSON: And you've given evidence that the telephone call cut out at some stage. The first telephone discussion cut out?---Yes, that's why - yes.
**** BRETT JOHN MILBURN XXN MR ANDERSON
PN171
And you've given evidence you believe that's why Ms Olsthoorn phoned you again?---Yes.
PN172
Okay?---She - she also said that she wanted to - she wanted to fax all the details through to finalise my termination.
PN173
To the Breakfree - - - ?---To the Breakfree Resort, yes.
PN174
- - - Resort. Okay. All right. During the second telephone conversation did Ms Olsthoorn tell you that she had a fax number for the resort?---Yes.
PN175
Did she tell you that she would like to let the resort know who was - who the booking was under?---I honestly don't remember.
PN176
You don't recall. Okay. Did you tell Ms Olsthoorn that you were booking into the resort that afternoon?---Yes.
PN177
And that you would ask at reception if there was a fax for you?---Yes.
PN178
Did you check at reception when you got to the resort?---Yes.
PN179
Was there any fax for you?---No.
PN180
Okay?---I checked the next morning as well and there was still no fax.
PN181
No fax?---No.
**** BRETT JOHN MILBURN XXN MR ANDERSON
PN182
Okay. All right. No further questions
PN183
THE COMMISSIONER: Very well. Thank you. Mr Conroy?
PN184
MR CONROY: Nothing arises, thanks, Commissioner.
PN185
THE COMMISSIONER: Very well.
PN186
PN187
MR CONROY: That's our evidential submissions, Commissioner.
PN188
THE COMMISSIONER: Very well. Thank you. Mr Anderson?
PN189
MR ANDERSON: Yes, thanks, Commissioner. Commissioner, I intend to call just one witness, Ms Sonya Olsthoorn.
PN190
MR ANDERSON: Ms Olsthoorn, could you please state your full name and your occupation, please?---Sonya Nicole Olsthoorn, and I'm the Employee Relations Adviser.
PN191
Employed by?---North Goonyella Coal.
PN192
Okay. I'd like to show you a witness statement, please?---Thank you.
PN193
You have before you a witness statement. Have you seen that document before?---Yes. I have.
PN194
Have you read the contents of that document?---Yes. I have.
PN195
Do you believe the contents of that document are true and correct, to the best of your knowledge and belief?---Yes. I do.
PN196
Have you sworn that document?---Yes. I have.
PN197
When did you swear that document?---Yesterday.
PN198
25 March?---25 March.
PN199
Thank you. Commissioner, I seek leave to tender that document.
PN200
THE COMMISSIONER: I'll mark that as exhibit NGCM1.
EXHIBIT #NGCM1 AFFIDAVIT OF SONYA NICOLE OLSTHOORN SWORN 25/03/2004
**** SONYA NICOLE OLSTHOORN XN MR ANDERSON
PN201
MR ANDERSON: Commissioner, that's the evidence-in-chief of this witness.
PN202
THE COMMISSIONER: Very well. Thank you. Mr Conroy?
PN203
PN204
MR CONROY: Ms Olsthoorn, can you just turn to SO-5, which is your notes - I take it your handwritten notes from the conversations you had with Brett on 16 January?---Yes.
PN205
And if you go to the last page of those notes, and I - my reading of - from what you've said there is that you were comfortable with the process of faxing that letter that afternoon. You had no issue that Brett was trying to avoid receipt of that letter?---No. I didn't.
PN206
Now, if my memory is correct - so you say you had two telephone conversations with Brett on that day?---Yes. I did.
PN207
And your phone records indicate that?---Yes.
PN208
And the first telephone conversation was cut off?---Yes.
PN209
Okay. So the second conversation was merely to complete the first conversation, if you like?---No. The first conversation had pretty much come to a close, anyway. The second conversation was more to confirm that I had the fax number and that I'd go ahead now and fax it.
**** SONYA NICOLE OLSTHOORN XXN MR CONROY
PN210
Sure. Okay. Oh, because you telephoned back after you got the fax number from the resort?---Yes.
PN211
So it was important to you to get that written letter to Brett terminating his employment that day, wasn't it?---Yes.
PN212
And it was important to you because you know that you have to terminate an employee's employment in writing.
PN213
MR ANDERSON: Objection. Commissioner, he's asking a question of law as to whether - as to how an employment relationship is terminated.
PN214
THE COMMISSIONER: That's right.
PN215
MR ANDERSON: So I object to any question directed to the witness about that matter. Ms Olsthoorn is HR - - -
PN216
THE COMMISSIONER: Perhaps you could just wait outside for a moment, please.
PN217
THE COMMISSIONER: Mr Anderson?
PN218
MR ANDERSON: Commissioner, Ms Olsthoorn is a witness as to fact in this matter. She's a HR supervisor at North Goonyella and she had numerous conversations and did a number of things on 16 January, and those are the issues which are in dispute in this matter, not whether Ms Olsthoorn believes, at law, she needed to give notice of termination in writing.
PN219
THE COMMISSIONER: Mr Conroy?
PN220
MR CONROY: Commissioner, what I'm seeking to establish is that she knows, and the company knows, their obligation to terminate in writing, so I think I'm actually agreeing with Mr Anderson, but I'm saying - - -
PN221
MR ANDERSON: But the company doesn't agree with that. That's the reason we're here, Commissioner. The company does not agree. The reason this dispute is before you under LW is because the company does not agree.
PN222
MR CONROY: Shall I finish, or shall I just sit down for a while?
PN223
THE COMMISSIONER: Just - you can sit down, Mr Conroy, because I'm going to allow the question because it seems to me that it has some relevance what it is the employer, who is charged with the responsibility of effecting the termination of employment, understands what its obligations are. I'm not saying that, at law, they're its obligations, but I'm interested in what the company believes are its obligations. So we might get Ms Olsthoorn back, please.
PN224
THE COMMISSIONER: Thank you, Ms Olsthoorn.
PN225
MR CONROY: Ms Olsthoorn, I'll try and ask the question how I asked it before. You faxed that, or wanted to fax that letter off because you were aware that you had to advise Mr Milburn in writing of the termination, aren't you?---No. I faxed it because I'd received legal advice that it wouldn't hurt to fax it. I faxed it because it was good HR practice to fax it, and I faxed it because I'd promised Brett that I would fax it.
PN226
And when did you get this legal advice?
PN227
MR ANDERSON: Well, legal advice is a matter of privilege, Commissioner.
PN228
THE COMMISSIONER: Yes, but not when she got it isn't a matter of privilege.
PN229
MR CONROY: Yes. I don't really know what it is. I think I know what it is.
PN230
THE WITNESS: It was that morning.
PN231
MR CONROY: What time? Now, when you terminate employees at the mine, in your role in Human Resources - you would have had involvement in that process - it's always the case that you terminate in writing, isn't it?---This is actually the first person that I've terminated.
PN232
And you've got no knowledge about what the company have done with anybody else?---As I said, I believed it was good HR practice to put it in writing and get it to Brett as soon as we could.
**** SONYA NICOLE OLSTHOORN XXN MR CONROY
PN233
And if we could just go to your witness statement. In paragraph 9, you've got subparagraphs, like clause (a) to (e)?---Yes.
PN234
You really took a few steps to ensure that you supplied that letter in writing that day, didn't you, advising of the termination?---Yes.
PN235
And it is really because you know that you had to supply it in writing?
PN236
MR ANDERSON: Well, the question has already been asked, Commissioner.
PN237
MR CONROY: I don't think I'm badgering. I'm just asking the question again.
PN238
MR ANDERSON: Well, "again." That's my point.
PN239
THE COMMISSIONER: Well, it has been asked.
PN240
MR CONROY: So Ms Olsthoorn doesn't have to answer that one, Commissioner?
PN241
THE COMMISSIONER: Well, she can - you can if you like, Ms Olsthoorn, to be blunt about it, but I doubt she's going to answer it a different way than she did about five minutes ago.
PN242
MR CONROY: I had my fingers crossed, Commissioner.
PN243
You're aware of the recent termination of Mr Woods?---Yes, I am.
**** SONYA NICOLE OLSTHOORN XXN MR CONROY
PN244
MR ANDERSON: Sorry, Commissioner, I don't want to impose unnecessarily, but I query the relevance of the termination of Mr Woods in this matter.
PN245
THE COMMISSIONER: Well, I haven't heard the line of questioning. I'm prepared to let it go for a while, Mr Conroy, and we'll see where it takes us, but - - -
PN246
MR CONROY: As I said to Commissioner Richards last week, I'm up against the alley wall. It's not going to go too far.
PN247
You're aware that Mr Woods, when he was terminated, it was in writing?---Yes, I am.
PN248
That's what the mine always does when a person is terminated, isn't it? They usually - - - ?---Those are the only two cases that I've been involved with.
PN249
Sure. Since your time - - -?---Yes.
PN250
Yes. And they were both in writing?---In both cases we put it in writing, yes.
PN251
I've got nothing further, thanks, Commissioner. Thanks, Ms Olsthoorn.
PN252
THE COMMISSIONER: Ms Olsthoorn, just before Mr Anderson asks you any questions, I've got a question for you. I don't understand something in your statement. At paragraph 2 you say - I'm sorry, at paragraph 3 you say that:
PN253
Originally Mr Milburn was employed in a temporary position.
**** SONYA NICOLE OLSTHOORN XXN MR CONROY
PN254
?---Yes.
PN255
Can you explain to me what a temporary position is?---He'd been employed for a period of six months, so it wasn't an ongoing permanent position. It was just for a period of six months.
PN256
Well, in the certified agreement there's two categories of employees, so it seems, at Clause 6.1. One is a full-time permanent, and the other is for a specified job task or period of time. So is it that he was the latter?---I don't - I didn't do that letter of employment. There's also a clause for temporary employees further on somewhere.
PN257
Is there?---It's around about 28 or - - -
PN258
MR ANDERSON: Commissioner, clause 35 I believe the witness may be referring to, if it would assist.
PN259
THE COMMISSIONER: Well, a temporary is again in the first sentence described - I won't use the word "defined," but it describes itself as:
PN260
Employees under the terms and conditions of this agreement as temporary full-time employees for a specified job, task or period of time.
PN261
?---Well, I would assume it was for a period of time. I didn't write the letter of employment.
PN262
Okay. And this engagement for a period of time; can I take you to I think it's attachment 5 to your affidavit. There's two things I want to draw your attention to there is the second paragraph, the second sentence - - -?---Am I looking at my handwritten notes.
**** SONYA NICOLE OLSTHOORN XXN MR CONROY
PN263
No, no, I'm sorry, it's attachment SO-2, I'm sorry. I apologise?---Okay. Second paragraph.
PN264
Second paragraph, second sentence?---Yes.
PN265
And the first sentence of the next paragraph, which I think constitutes almost - if I was to read that, and this is the point of all of this, is it the company's view that the company can employ a person for a specified time but terminate that person at the employee's discretion during that period?---You mean during the - during the - - -
PN266
Well, there's two issues here. What I'm trying to find out from you is - there's two issues here. One is that you say, "You are engaged for a specified time"?---Yes.
PN267
That is, in this case approximately six months. I won't even trouble you with why approximately. It should be specified what the period of time is, but there is a statement that, "We'll employ you for six months but it seems that the termination provisions of the certified agreement will apply, which means that NGCM during the six months can terminate you at any time," and I'd just be interested to know if that's the company's view about all of that?---I don't know. I didn't write this letter, as I say. It was written before I - I guess I'd - I'd probably want to get some legal advice on that.
PN268
So the company doesn't - or at least you don't know?---No, I wouldn't - - -
PN269
Okay. That's fine. I don't know if anyone has anything arising out of that. Mr Conroy?
PN270
MR CONROY: Not from Sonya's point of view, Commissioner. It might be a matter for subs.
**** SONYA NICOLE OLSTHOORN XXN MR CONROY
PN271
PN272
MR ANDERSON: Just briefly, Commissioner.
PN273
Ms Olsthoorn, Mr Conroy raised during examination-in-chief the termination of I believe it was Mr Woods?---Yes.
PN274
And you gave evidence that notice in writing was given to Mr Woods?---It was.
PN275
How was that letter given to Mr Woods?---It was couriered to his place of residence.
PN276
No further questions, Commissioner.
PN277
PN278
THE COMMISSIONER: That completes your evidence, Mr Anderson?
PN279
MR ANDERSON: Yes, Commissioner.
PN280
THE COMMISSIONER: Very well. Thank you. Mr Conroy?
PN281
MR CONROY: Commissioner, could I seek a brief adjournment? I just want to consider something that you've just raised. I just wouldn't mind having a few minutes to think something through before I give my submissions.
PN282
THE COMMISSIONER: How long were you thinking of?
PN283
MR CONROY: Half an hour, Commissioner, maximum.
PN284
THE COMMISSIONER: Mr Anderson?
PN285
MR ANDERSON: I have no objections for Mr Conroy to consider something.
PN286
THE COMMISSIONER: Very well. We'll adjourn and resume at quarter to 11.
PN287
MR CONROY: Thank you, Commissioner.
SHORT ADJOURNMENT [10.20am]
RESUMED [10.46am]
PN288
THE COMMISSIONER: Mr Conroy.
PN289
MR CONROY: Thanks, Commissioner, for that time to just consider some points. Following on from the questions you asked Ms Olsthoorn at the conclusion of her evidence it seems to me that there may be an issue with respect to whether or not Mr Milburn was actually a permanent employee of the company prior to October last year. To this end, I'd seek to recall him as a witness just to ask him one or two specific questions that perhaps go to that.
PN290
THE COMMISSIONER: Sorry, that he was a?
PN291
MR CONROY: A permanent employee prior to the last letter from the company with respect to his employment, that letter being the letter issued and signed by Mr Jackson on 9 October.
PN292
THE COMMISSIONER: But he was a permanent employee.
PN293
MR CONROY: What I'm getting at, Commissioner, is that perhaps he was a permanent employee prior to 9 October and as a result the probation period had well and truly been exhausted or even there was no probation period with respect to his permanent employment.
PN294
THE COMMISSIONER: Well, Mr Anderson.
PN295
MR ANDERSON: Commissioner, I don't see the relevance of any inquiry of that nature in this LW proceeding involving disputes and interpretation of Clause 6.2 of the certified agreement. It would seem to me and my submission is that any inquiry of this nature should probably be brought in an unfair dismissal proceeding. And I object, therefore, to any evidence - further evidence being called from Mr Milburn in that regard.
PN296
THE COMMISSIONER: Very well, thank you. I'm not sure, Mr Conroy, what further evidence you would need. The material is all in. The material is attached to Ms Olsthoorn's affidavit.
PN297
MR CONROY: Okay, well - - -
PN298
THE COMMISSIONER: It's in evidence that he was engaged as a temporary employee; that that temporary engagement in accordance with the relevant clause in the certified agreement is for a specified time. The time specified is approximately six months. It seems that on its face, despite the fact that an employee is alleged to employed for a specified time, it seems that either side continues to hold a discretion to terminate that engagement at any time in accordance with the termination of employment provisions of the certified agreement.
PN299
Now, having said that, I don't know how those two sit together at law. I think that they - I don't think they sit together very comfortably as concepts but nevertheless what else, though, is in evidence is the fact that on 25 September a letter terminating that engagement or the contract of employment between North Goonyella and Mr Milburn was given to him and effective. Whatever flaws that previous contract might have had it's been terminated on 25 - by the letter of 25 September, which took effect from 6 October. My point of asking is, no doubt, to draw - because I'm just aware of what goes on in this coal mining industry; that you tag people as something - - -
PN300
MR CONROY: Yes.
PN301
THE COMMISSIONER: - - - even though they are not and I'm just getting tireder and tireder of it. And particularly this issue of, "You're not subject to unlawful termination legislation because you're a temporary and you're a temporary because we call you a temporary and you're engaged for a specified time even though the time is not specified. And in any event even if it is specified both sides retain a discretion to end the contract at any time by giving appropriate notice". And it's just rot.
PN302
And you may well get on the front foot about it but I'm not sure this is the place because whatever happened in that engagement is over, it seems, in accordance with the original letter of appointment for approximately six months - almost six months to the day the engagement was terminated in accordance with the requirements of the certified agreement.
PN303
MR CONROY: Commissioner, I hear the comments you've made. I think I understand what you're saying. But the evidence I was going to draw was to bring into question that perhaps the contract of employment which was called a temporary contract of employment actually wasn't brought to a conclusion.
PN304
THE COMMISSIONER: But there was notice given in accordance with the certified agreement.
PN305
MR CONROY: Yes. Actually, before I continue I might just ask Mr Milburn to go outside.
PN306
THE COMMISSIONER: Very well.
PN307
MR CONROY: There was notice given but the accrued benefits weren't paid out, as is required by the certified agreement. His sick leave wasn't paid out. So that when the company then deemed him to be a permanent employee his sick leave was retained from - recredited from his period of when he was labelled as a temporary employee. That's what I'm trying to question, whether or not his employment is actually terminated at that time.
PN308
The company say in the letter - they give the notice and then go on to say, "Any outstanding pay and accrued benefits will be paid into your nominated bank account". They weren't paid out. That's my instructions. They were recredited, so it just muddies the water even further - well, I say, with respect to the status of Mr Milburn's employment. Was he - in addition to the comments you've made, which I've got something to say about in my words - I would be making submissions about whether or not he was actually terminated in September.
PN309
THE COMMISSIONER: It's pretty hard to say that both parties didn't understand that there was a termination of his employment effective - whatever the date was, 6 October.
PN310
MR CONROY: Sure. Yes.
PN311
THE COMMISSIONER: And that he was re-engaged as a full-time employee.
PN312
MR CONROY: That's right, Commissioner, but it comes down to this argument. You can call it whatever you want, but if you already were a permanent employee at that time then a claim that the employment relationship was actually broken didn't occur.
PN313
THE COMMISSIONER: Go on, Mr Anderson.
PN314
MR ANDERSON: I don't think I can expand too much on my earlier submission, Commissioner, that is, it merely appears to me to be a submission that should properly be made in an unfair dismissal claim.
PN315
MR CONROY: Being the optimist that I am, I'm hoping not to end up there, hence, that's why I want to make it now.
PN316
THE COMMISSIONER: I must admit, Mr Conroy, even on the evidence that's in front of me, the fact that someone didn't receive some annual leave or sick leave pay-outs might constitute a breach of the certified agreement. Whether or not the parties agreed that they would simply re-credit upon his re-engagement those accruals might, in itself, constitute a breach of the certified agreement. But I'm not sure that they take you where you want to go, which is that they establish that the contract never terminated.
PN317
MR CONROY: Sure.
PN318
THE COMMISSIONER: Because to pay them out - I'm sorry, I withdraw that. And to be blunt about it, it's clear from the evidence that the parties accepted that that six month contract came to an end and that a new contract was created and that the new contract, unlike the one that preceded it, wasn't for a specified time but it was for a full-time permanent position which was subject to a period of three months of probation.
PN319
I'm not saying that if you want to put that argument that you shouldn't, that the contract was ongoing. That's a matter for you, but I don't think it's going to be assisted by calling more evidence about whether or not the accrued leave was simply re-credited or was paid out. And it's my recollection as well that the notice of termination dated 25 September, and I've just turned it up, even makes reference to the fact that his - Mr Milburn had applied for a position. So that was obviously in the mix at the time his employment for the specified time was effected.
PN320
And there's a paragraph in the letter giving notice that says, "Look, we know you've applied for a job and we will advise you about that as soon as we can". Could we get - would you like Mr Milburn to come back.
PN321
MR CONROY: Yes, please. Commissioner, I will move on to making some submissions. The first thing I would like to do is put forward some argument with respect to the issue that has just been discussed and say Mr Milburn received a letter on 24 March 2003, as is stated in the company's evidence. The terms of the letter state that the period of employment will be approximately six months, which is certainly not a specific time as the certified agreement states must be the case at 35.1; that a person may be employed for a specified period of time.
PN322
So, Commissioner, the effect of this is, I say, that Mr Milburn was actually employed as at 24 March 2003 as a permanent employee. Now, the certified agreement states that a person may be employed on a permanent full-time basis or for a specified job task or period of time. It's clear that there's been a failure to employ him for a specified period of time. As a result I say that he was actually employed as a permanent then. In addition to that the certified agreement provides either party with the ability to end that contract prior to the expiration of the specified component of it.
PN323
In this issue or with respect to this issue it's the date. As a result it's not a fixed term contract of employment. The company employed him on 24 March 2003 as a permanent. In that letter, Commissioner, on 24 March there's no reference to a period of probation and as a result I say that there cannot be an issue of Mr Milburn now being terminated during a probation period because when he was employed as a permanent there was no probation period.
PN324
Commissioner, if you don't see it that way with respect to - or the way that I've submitted and you do determine that there was a separate and new period for engagement that occurred in October last year, I first of all rely on the submissions that - outline of submissions that were provided in accordance with your directions, that the company terminated Mr Milburn outside his probation period. In addition to that, Commissioner, I would just like to make some comments with respect to the outline of submissions that the company have provided for this matter.
PN325
Commissioner, they have put forward argument with respect to the meaning of Clause 6.2 of the certified agreement. Commissioner, it's the view of the CFMEU that Clause 6.2 is clear in that it is mandatory that employment can only be terminated by written notice. The discretionary aspect or where the word "may" comes into play is that notice can be either worked or paid out or money forfeited. And that's what we say is the ordinary or usual meaning of Clause 6.2.
PN326
Commissioner, the company, at clause 21 of their outline of submissions, commence to raise points about the effective date of termination. Commissioner, what we're seeking today out of these proceedings is an order from the Commission stating that the termination of Mr Milburn was required to be in writing and, as a result of that requirement, the effective date of termination was when he received that written advice which was 21 January. Furthermore, with respect to the case that we provided - and my apologies, I should have handed a copy of that case up earlier. I'll do that at the end of these proceedings, if you're comfortable with that, Commissioner.
PN327
The company say, or the quote from that case, they say that they rely upon is - and the quote is:
PN328
It seems to us that, in the case of this kind, termination must be construed to refer to the date on which the termination is communicated to the employee.
PN329
Our view of the case, Commissioner, is that the point it's making is that, at common law, the termination is effective when the letter is actually received, and there's some qualifications to this, and that is if the letter, in good faith, is trying to communicate in writing but the employee is deliberately avoiding the receipt of the written communication. And the evidence before the Commission on this matter is that Mr Milburn was doing nothing to avoid the receipt of the communication.
PN330
Ms Olsthoorn, in her evidence, advised that she was comfortable with the actions of Mr Milburn in providing her with the fax number, or not trying to avoid receipt of the letter. Commissioner, with respect to the claim that the verbal advice of Ms Olsthoorn is when the termination occurred, we say that that cannot be relied upon by the company, going back to the words of clause 6.2. It's a certified agreement, and that is it has got to be in written form, and that is when the date of termination is effected.
PN331
And I would say that, indeed, the actions of Ms Olsthoorn with respect to attempting to fax through the letter of 16 January gives some indication that the company was aware of the requirement for the mode of communication to be written. Commissioner, the company then provides submissions with respect to the distinction at law between the termination of an employee's contract of contract and the termination of the employment relationship, and they make the point that the termination of the contract of employment may not always be the same time as the termination of the employment relationship, and cite a number of cases with respect to this point.
PN332
The cases they've provided, the first one, Siagian, if I've pronounced that correctly, v Sanel indicates, or makes the point:
PN333
Where payment is made in lieu of notice, the date on which the notice is given is the date of termination.
PN334
And then there's the CFMEU v The Newcastle Wallsend Coal Company, and in that case the Full Bench had to determine when the employment relationship terminated, and they had to decide was it when the notice of termination was given, or at the expiration of that notice. Commissioner, I submit that these cases do not assist the company in any way with respect to the argument, due to the fact that the requirement for communication of termination in this matter has to be in writing, and that was not given until the completion of the probationary period, that being on 21 January.
PN335
Therefore, any argument about the ending of the employment relationship versus the ending of the contract of employment can only commence from when Mr Milburn received his written notice of termination, which was outside the probation period. So it's simply not relevant. Commissioner, unless you've got any questions at this stage, that's all I intended to say.
PN336
THE COMMISSIONER: Thank you, Mr Conroy. Mr Anderson?
PN337
MR ANDERSON: Thank you, Commissioner. Commissioner, firstly in relation to the first issue raised by Mr Conroy, that is, in relation to the end of the previous engagement and the commencement of the new engagement and the issues surrounding that, my submission is that those issues are irrelevant for the purposes of your determination under section 170LW in these proceedings. Certainly, the company's view is that there was a temporary arrangement which came to an end, and the commencement of a permanent arrangement commenced shortly thereafter, that my submission is that the LW proceeding before you is a dispute over the application of clause 6.2 of the agreement dealing with whether termination was required to be given in writing, arising out of the termination of a former employee of North Goonyella, Mr Milburn.
PN338
I note that Mr Conroy has made submissions that, firstly, the union seeks an order from the Commission that the termination was required to be in writing under clause 6.2 and then, secondly, Mr Conroy had submissions that the consequences of this is that the employment didn't come to an end until Mr Milburn actually received the written letter. I'm not sure whether Mr Conroy actually seeks an order in relation to the latter statement that I've just made, that is the consequences, but if that is sought, again, my submission is that that's not a matter for resolution in an LW proceeding.
PN339
There are separate provisions under the Workplace Relations Act dealing with unfair dismissal, and that's a matter which should properly be determined in those proceedings. I submit that, in terms of your discretion to resolve the dispute under LW, it is in relation to the interpretation of clause 6.2, and that is whether the termination is required to be in writing, Commissioner. Commissioner, you have the evidence before you in this matter. I'll briefly outline some of the key provisions - the key evidence.
PN340
Mr Milburn gave evidence that he had two telephone conversations with Ms Olsthoorn on Friday, 16 January 2004. He agreed under cross-examination that those conversations occurred at about 11.43 am and 12.07 pm. He agreed, during those conversations, that it was communicated to him that his employment would be terminated, "effective today." And he gave evidence about that. He gave evidence that he asked whether this was definitely the end, and he gave evidence, also, that Ms Olsthoorn told him that it was.
PN341
There's no dispute that he was sent a letter to his home address by Ms Olsthoorn. In his evidence he says that he received that letter after returning from leave sometime later; I believe it might have been 21 January, Commissioner. However, Ms Olsthoorn did, at about 12.20 pm on Friday, 16 January attempt to fax through a letter to Mr Milburn at the Breakfree Paradise Island Resort, and Ms Olsthoorn gives evidence about that in her affidavit. I can take you to the paragraph, if you'd like me to, Commissioner.
PN342
It's paragraph 13 of the affidavit of Ms Olsthoorn, and attached as an exhibit to that affidavit, SO-6 - sorry, SO-8, is a facsimile transmission report which indicates that, at 12.20 on 16 January a facsimile was sent to a telephone number 05 592 5552. Commissioner, that telephone number is the same number which is set out in Ms Olsthoorn's handwritten notes of the conversation that she had with Mr Milburn SO-5 to her affidavit where it appears under the word Marcus it says:
PN343
Breakfree Paradise Island Resort and has fax 55925552.
PN344
For whatever reason, it appears from the facsimile transmission report that the letter did not transmit to the resort itself. Ms Olsthoorn gave evidence in an affidavit that a payment was made of one roster block in lieu of notice by direct deposit into Mr Milburn's bank account on the Friday 16 January 2004. She also gave evidence that she only discovered that the transmission of the facsimile did not go through on returning to work the following Monday, which was 19 January 2004.
PN345
Commissioner, if I can take you now to the union's outline of submissions. Paragraph 10 of the outline of submissions state:
PN346
It is submitted that the agreement at Clause 6.2 specifies that termination must be effected by written notice.
PN347
Well, Commissioner, it's submitted from the company that that's not the case. They're not the words used in Clause 6.2. The words used are different. The word "must" for example, is not included in the provision itself. The provision itself - Commissioner, do you have the provision itself before you?
PN348
THE COMMISSIONER: I do.
PN349
MR ANDERSON: The provision itself uses the word "may" and in fact says:
PN350
Employment shall be by the roster block and subject to the Workplace Relations Act 1996 may be terminated by written notice of one roster block given by either side -
PN351
and then there is a comma, and it says -
PN352
or payment or forfeiture of wages for the ordinary time component in lieu thereof.
PN353
It's submitted by the company that the use of the term "may" indicates that the company has a discretion. It's a discretionary term, so the company has a discretion in relation to which mode of termination that it may be use in Clause 6.2 in complying with that provision and that if the framers of the document did want to make it a mandatory requirement, that they could well have used other terms such as "may only" or could have used the term "must," which is the term which has been submitted by the CFMEU. The term "must" isn't found in the clause itself.
PN354
It's also submitted that Clause 6.2, Commissioner, sets out two separate modes of termination, and it's submitted that the modes of termination are these: the first one is that employment may be terminated by written notice of one roster block given by either side. That's the first mode of termination under Clause 6.2. The second mode of termination is that a payment or forfeiture of wages for the ordinary time component in lieu thereof can be made. So the submission that I make is that to comply with 6.2 it is submitted there are two separate modes. It can either be written notice in accordance with the first mode, or a payment or forfeiture of wages for the ordinary time component in lieu, which is the second mode.
PN355
Commissioner, Ms Olsthoorn gave evidence that on the Friday 16 January 2004 a payment was made in lieu of notice of termination and it is submitted that the company complied with the second mode of termination set out in Clause 6.2. I think it's also worthy to note that 6.2 says that it is subject to the Workplace Relations Act 1996. There's no further clarification of that, and I simply submit that that's something that the Commissioner should take into account given that, as far as I'm aware, there's no obligation under that Act to give notice or to terminate employment in writing.
PN356
THE COMMISSIONER: I think the purpose of the words are because obviously for an employee with 10 years' service and who is over 45 they are entitled to more than one roster block of notice under the statute.
PN357
MR ANDERSON: I accept that, Commissioner. That may well be the case. Commissioner, the union has in this matter attempted to make an issue or has made an issue of the effective date of the termination in this matter. That is, when does the employment relationship itself come to an end? It's submitted that this matter, and LW matter, is a matter whereby you are to determine - sorry, you are to resolve the dispute by making some determinations in relation to the dispute over Clause 6.2. That is, under Clause 6.2 is the employment required to be terminated by written notice?
PN358
It's submitted that Clause 6.2 itself doesn't actually deal with the effective date of termination of the employment relationship. That is a matter of law to be decided based on the facts of a particular case, Commissioner. Clause 6.2 deals with some modes of termination. It doesn't deal with the effective date of termination of the employment relationship. And Mr Conroy took you to the case of P.T. Wilson v Australian Taxation Office, which I understand was a Full Bench decision, Commissioner, upon you presided, and the facts of that case can be distinguished from Mr Milburn's case to the extent, if any, that the effective date of termination in this matter, this LW proceeding, is relevant, because the P.T. Wilson decision - and I have a copy, Commissioner, if you'd like to see a copy of the decision.
PN359
In that case the first time that the employee received the letter was outside of a probationary period, and that's the first time that the actual termination of the employment relationship was communicated to the employee. So if my interpretation of the decision is correct the Commission held that it is the communication to the employee of the termination which is the critical step and because the Australian Taxation Office didn't communicate the termination until the employee received written notice ie a letter outside the probationary period, despite the fact that it was signed, dated and may well have been sent inside the probationary period - I believe it was sent by registered post - that the termination did not take effect until the employee actually received that letter and that's when the notice was communicated.
PN360
So when it comes to the effective date of termination, Commissioner, it's submitted that it is when the company communicates that termination to the employee. I've already pointed out the evidence of Mr Milburn and he agreed under cross-examination that Ms Olsthoorn told him that his employment was terminated effective today. In fact, he also undertook a further trail of inquiry of Ms Olsthoorn in the telephone conversation. He gave evidence about saying something to the effect that, "Well, is this definitely the end?" to which his evidence is that Ms Olsthoorn replied that it was.
PN361
That's consistent also with Ms Olsthoorn's affidavit and her handwritten notes. So when it comes to the effective date of the employment relationship it's submitted that the effective date is when it was communicated, which is via the telephone, by Ms Olsthoorn to Mr Milburn on the 16th. Now, that's not to detract from the earlier submissions in relation to Clause 6.2 itself, and I've already outlined those submissions, but in summary the company submits that termination is not required to be in writing. That's termination of employment relationship.
PN362
There are the separate modes and there is the discretionary use of the term "may" when it comes to the words at Clause 6.2 itself. So for those reasons the company says it's not required to be in writing under 6.2. But let's say, Commissioner, you find against the company on that particular issue in this proceeding and under 6.2 the company was required to give notice of termination in writing. Well, the company did, in fact, do that. I believe it was 21 January Mr Milburn received a letter from the company which was, in fact, couriered to Mr Milburn's home on the Friday, the 16th, although Ms Olsthoorn did know that Mr Milburn wouldn't be there. And Ms Olsthoorn gives evidence about that in her affidavit. So a letter was couriered which Mr Milburn received on the 21st when he returned from holidays.
PN363
So in terms of the actual carrying out of the written requirement, if there is one, and it's submitted that there isn't, that was complied with by North Goonyella. But that must be distinguished, Commissioner, from when the effective date of the termination of the employment relationship took effect. And I come back to my earlier submission, the critical step is the communication and it's a question of law based on fact and both parties, both Mr Milburn and both Ms Olsthoorn, were under no misapprehension that the employment relationship was effective on Friday, 16 January.
PN364
Commissioner, there is one further point which has been raised in the company's outline of submissions and I should say it is a technical point and that is in relation to the distinction between the termination of the employment relationship itself and the termination of the contract of employment. Mr Conroy has referred to the cases which are set out in the outline of submissions.
PN365
Commissioner, the submission on that particular point is simple and that is that despite the fact that there may be some obligation under the contract of employment or there may be some obligation under the certified agreement or some other industrial instrument, to take a particular step, that does not mean that the employment relationship itself cannot come to an end if the company communicates that to the employee,
PN366
The company makes a unilateral decision to terminate employment, communicates that over the telephone. In this case it seems to be well understood and that doesn't seem to be in dispute between both witnesses who gave evidence in the proceeding, so if that gives rise to some other legal claim, whether it be breach of the contract of employment, well so be it. That needs to be pursued in the appropriate jurisdiction. Commissioner, to resolve the dispute and make a determination under 170LW today or in doing so at the appropriate time, the company seeks a determination from you that under Clause 6.2 of the agreement that it was not required to provide Mr Milburn the written notice of termination of his employment.
PN367
Alternatively, the company seeks a determination that Clause 6.2 specifies two separate and distinct modes of termination, which I've already set out, Commissioner, and that the company did comply with the mode of termination by paying in lieu of notice on the Friday, the 16th, and, in fact, also sent written notice of termination which he received on 21 January. If there's any questions, Commissioner, those are my submissions.
PN368
THE COMMISSIONER: Mr Anderson, I do have two questions for you. Do you have any views on what the term "notice of one roster block" means? I know what a roster block - - -
PN369
MR ANDERSON: In Clause 6.2?
PN370
THE COMMISSIONER: Correct. I know what a roster block is. A roster block at North Goonyella is one cycle of the roster.
PN371
MR ANDERSON: Yes.
PN372
THE COMMISSIONER: In this case four days on and four days off; eight days.
PN373
MR ANDERSON: Yes.
PN374
THE COMMISSIONER: Do we read "roster block" as eight days or is - well, does the company have a view how notice works? Is it - - -
PN375
MR ANDERSON: Commissioner, I would need instructions. Certainly, as you've rightly pointed out, it's subject to the Workplace Relations Act. So someone who had 10 years, for example, the example you used, I would have thought the company would advert to the notice periods referred to in the Workplace Relations Act. So it might be, for example, the five weeks. I don't know if I can make those submissions, Commissioner, without taking instructions.
PN376
THE COMMISSIONER: In any event it's not a significant point. I was just wondering whether or not there was some view as to what - - -
PN377
MR ANDERSON: I just can't assist.
PN378
THE COMMISSIONER: To me a "roster block" is eight days.
PN379
MR ANDERSON: Eight days.
PN380
THE COMMISSIONER: On the current roster as defined by the certified agreement itself.
PN381
MR ANDERSON: Look, Commissioner, I really can't assist without seeking instructions. There doesn't seem to be any evidence in this matter - - -
PN382
THE COMMISSIONER: Well, my point is this.
PN383
MR ANDERSON: Yes.
PN384
THE COMMISSIONER: If you have to give a roster block - - -
PN385
MR ANDERSON: Yes.
PN386
THE COMMISSIONER: - - - and I refer to decisions of the Federal Court as to what constitutes three working days for the purposes of Section 170MO notices, what that means is that a clear roster block of the employee or is it eight days? For instance, if - and I'm sure those who are instructing you will understand this - if it's the first day of the tour.
PN387
MR ANDERSON: Yes.
PN388
THE COMMISSIONER: So you're into - part way through a roster block.
PN389
MR ANDERSON: So day one of the work cycle?
PN390
THE COMMISSIONER: Correct.
PN391
MR ANDERSON: Yes.
PN392
THE COMMISSIONER: And you have to give one roster block's notice - - -
PN393
MR ANDERSON: Yes.
PN394
THE COMMISSIONER: - - - is the roster block eight days; that is the termination will affect half-way through the next roster block or must you give sufficient notice to include the whole of the next roster block for that employee? Is the question if you understand what I'm talking about.
PN395
MR ANDERSON: I do.
PN396
THE COMMISSIONER: There are decisions of the Federal Court that say three working days, don't include the day of the termination and don't include the day that the notice was given.
PN397
MR ANDERSON: So, Commissioner, for example, if you're on day three of the work cycle of the roster you might have to wait through the four days off and then up to day three of the next working cycle on your - - -
PN398
THE COMMISSIONER: Well, that's my point. Is it eight days, or in that case is it eight days plus the balance of the cycle in which you're given notice?
PN399
MR ANDERSON: Again, Commissioner, I could maybe seek some instructions. I can't assist. But when it comes to maybe paying in lieu of the roster block I would have thought that the dollar figure wouldn't be in dispute because you would get a certain dollar figure paid, say, for the - - -
PN400
THE COMMISSIONER: It does come in dispute because if - if it's the first day of a roster block and, in my example, I was given notice today.
PN401
MR ANDERSON: Yes.
PN402
THE COMMISSIONER: I would still have seven days of the existing roster block to run - - -
PN403
MR ANDERSON: Yes.
PN404
THE COMMISSIONER: - - - four of which would be non-working days and three of which I would be rostered to work. I then get notice of a full roster block of which there are four days on which I would work. So there's seven working days in one proposal - - -
PN405
MR ANDERSON: Yes.
PN406
THE COMMISSIONER: - - - versus three days in the second. That is a roster block is eight days and a roster block for the purposes of notice in this case would - the eight days would commence today, the day I was given notice.
PN407
MR ANDERSON: Would the employees not be paid by the hour, say, for when they are actually working on the four working days of the roster block? Hence when it comes to calculating the payment given that there are, say, eight days in a roster block, four of which are non-working and four of which are working, that the payment is calculated by the four working days and it's - I don't know what the company does, Commissioner.
PN408
THE COMMISSIONER: No. Yes, I don't either. And that is why I was interested to know whether you have to give - whether a roster block is just eight days or whether for the crews it's - you have to give one clear roster block's notice which could - which is eight days. But if it was given on the first day of the current roster block it could be as many as 15 days.
PN409
MR ANDERSON: That's right. I see your point. I would need instructions, Commissioner.
PN410
THE COMMISSIONER: Well, I'll give you some time to get those. The second of my questions of you is that, if you're right about 6.2, the term "may" means that it may be terminated - employment may be terminated by written notice - - -
PN411
MR ANDERSON: Yes.
PN412
THE COMMISSIONER: - - - and that's it's discretionary and, presumably, it's discretionary on either side.
PN413
MR ANDERSON: Well, it's dealing with the employment. Presumably, it is. It doesn't seem to limit it to the company.
PN414
THE COMMISSIONER: Well, it says:
PN415
...terminated by written notice of one roster block given on either side.
PN416
MR ANDERSON: Oh, yes.
PN417
THE COMMISSIONER: So whoever terminates, on the CFMEUs proposal, is it must be in writing but, on your proposal, well, that's just one option - - -
PN418
MR ANDERSON: Yes.
PN419
THE COMMISSIONER: - - - because the term "may" is used.
PN420
MR ANDERSON: That's our submission.
PN421
THE COMMISSIONER: If that's so, is the option that is exercised only the provision of written notice, or the discretion relates only to written notice, or if "may" precedes all that follows it, does that mean that employees actually don't have to give any notice of termination of employment?
PN422
MR ANDERSON: Well, they can forfeit wages for the notice period.
PN423
THE COMMISSIONER: But it's "may". I mean, that's one way that termination can be effected. There are others, as you've relied on.
PN424
MR ANDERSON: Yes. Well, it may be the case that an employee absents him or herself from work, doesn't communicate at all with an employer, and the employer maybe makes some attempts to contact the employee, never does. The employment relationship, you know, would come to end by virtue of a different avenue outside of clause 6.2 in that case.
PN425
THE COMMISSIONER: Yes, 6.4.
PN426
MR ANDERSON: 6.4.
PN427
THE COMMISSIONER: But my point is if "may" is a discretion - - -
PN428
MR ANDERSON: Yes.
PN429
THE COMMISSIONER: - - - and it's a discretion for all that follows it, is what your argument is.
PN430
MR ANDERSON: Yes. That's absolutely correct.
PN431
THE COMMISSIONER: Then if it's a discretion for all that follows it, it just becomes one option of how - all that follows it becomes one way employment might be terminated.
PN432
MR ANDERSON: Well, in accordance with 6.2 of the certified agreement, it's either termination by written notice of the one roster block by either side, or the other mode is the payment or forfeiture. But when it comes to the termination of the employment relationship, it may well be the employee turns up to work and says, "I'm out of here, not coming back again," and it's a verbal communication to whoever it is within the company that, "The employment has come to an end, and I've brought it to an end." Now, the company may have some right if the employee has breached 6.2, I don't know, but the employment relationship, at law, would have come to an end when the employee turns up to work and says, "See you. I'm out of here. I'm not coming back."
PN433
THE COMMISSIONER: And, arguably, NGCM would say, "Well, we're going to take - withhold from your accruals, the equivalent of how many working days' notice remain in this roster block."
PN434
MR ANDERSON: They could well argue that - - -
PN435
THE COMMISSIONER: Well, that's my point, because - - -
PN436
MR ANDERSON: - - - because he's failed to comply with an obligation - if he's failed to comply - sorry, Commissioner.
PN437
THE COMMISSIONER: But it's a discretion - that's my point. If you're saying it - doesn't it become discretionary. If "may" - that's how - that may be done, but it may not - - -
PN438
MR ANDERSON: Yes.
PN439
THE COMMISSIONER: - - - because it's discretionary.
PN440
MR ANDERSON: Yes. So the employee may turn up to work and say, "I forfeit my wages for a period of time." It's a may. It's a discretion either way.
PN441
THE COMMISSIONER: What is the employee turns up and says, "I'm finishing up today and I'm not forfeiting my wages, and that's - I'm allowed to do that because I have a discretion under 6.2 to do that. I've a discretion to forfeit my wages, but I don't want to forfeit my wages because it's only discretionary."
PN442
MR ANDERSON: Well, the company - it's a mode of termination. It's a mode for bringing the employment relationship to an end.
PN443
THE COMMISSIONER: Sure.
PN444
MR ANDERSON: It's not the entitlement, necessarily, to - it's not whether the company might have some sort of right of other action against the employee to recover some payment from the employee because the relationship has been brought to an end in some manner which, say, the company disagrees with. But if the employee turns up and says, "I forfeit my wages for a period of time," then it's a discretion that, in my submission, 6.2 contemplates. So the employee says, "6.2, I am not going to give you written notice of one roster block and work through. What I'm going to do is forfeit my wages for that period and I'm out of here."
PN445
THE COMMISSIONER: No, but my point is, does it then provide, because of your argument and the use of the word "may", a discretion to the employee to say, "I'm not going to forfeit my wages because it's a discretion"? You say everything that follows "may" is a discretion to either side.
PN446
MR ANDERSON: But it's a discretion in terms of two discrete options. So it's discretion in terms of either, pay by written notice of one roster block. That's discretion number 1. Discretion number 2 is the payment or the forfeiture of wages. So it's a - there are the two options, and those two options - - -
PN447
THE COMMISSIONER: But they're not the only two.
PN448
MR ANDERSON: Well, because - - -
PN449
THE COMMISSIONER: Because "may" is discretion, you say, so there are a whole host of other ways that the termination could be effected, aren't there?
PN450
MR ANDERSON: Well, not contemplated by 6.2
PN451
THE COMMISSIONER: Correct, not contemplated by 6.2
PN452
MR ANDERSON: But I'm saying outside of 6.2, and whether that results in some sort of breach of 6.2 or not, there may be other ways where - how the employment relationship can be brought to an end, at law, such that the law says, "Well, it's been brought to an end, and if that gives either party some sort of right under 6.2, well, so be it." That right might exist. Now, the "may" may be limited to - in the context of 6.2, those two discrete options, but when it comes to at law, whether the employment relationship itself has come to an end, has actually ceased, if a party hasn't complied with 6.2 in doing that, a right might accrue under 6.2. But what I'm saying is, at law, if the parties - if there's no dispute, the employment relationship has come to an end on a particular day by whatever manner, then the employment relationship at law is at an end. There may be some sort of other rights which accrue.
PN453
THE COMMISSIONER: Very well. Thank you.
PN454
MR ANDERSON: Commissioner, do you require some instructions in relation to that first point?
PN455
THE COMMISSIONER: If you would. Do you think you'll need very long?
PN456
MR ANDERSON: 10 minutes. Could I just inquire in relation to the relevance of me obtaining those instructions in this matter?
PN457
THE COMMISSIONER: Well, because I would like to - the matter has come up, and I would like to settle it. Now, because this is an LW application and because it's my experience that North Goonyella and the CFMEU argue about everything from the size of steaks in the single persons' quarters through until whether it's night or day - - -
PN458
MR ANDERSON: Yes.
PN459
THE COMMISSIONER: - - - I would like to take the opportunity to try and resolve the matter so that I'm not sitting here arguing about it at some later stage, as to what is a roster block, because, ordinarily, most awards and other documents refer to weeks. Everyone, hopefully - although I've had the same argument, about what constitutes a week. The roster block issue is a different concept and I'd like to try and have both parties understand exactly what the concept means, if that's at all possible. So you might like to talk to Mr Conroy as well, and if you can agree - - -
PN460
MR CONROY: God forbid.
PN461
THE COMMISSIONER: - - - if you can agree what the term "roster block" means, then that would be good. If it just simply eight days, then that's fine. If it's something else, then - and that's the sole intention. I don't think it has much impact on this matter because, either way - - -
PN462
MR ANDERSON: I understand, Commissioner.
PN463
THE COMMISSIONER: - - - although it might, arguably, given that there might be additional moneys owed if proper notice wasn't given.
PN464
MR ANDERSON: Yes.
PN465
THE COMMISSIONER: But that wasn't the point of the question. The point of the question is that I don't want to have you here at some other time, or in an unfair termination jurisdiction, arguing that termination wasn't effected because no one knows what a roster block is and how you give notice under this clause 6.2
PN466
MR ANDERSON: All right, Commissioner.
PN467
THE COMMISSIONER: It's in the role of the Commission trying to prevent disputes.
PN468
MR ANDERSON: I appreciate it. I was just trying to understand the relevance in this matter - - -
PN469
THE COMMISSIONER: No. That's fine.
PN470
MR ANDERSON: - - - so I can ask the appropriate question.
PN471
MR CONROY: Commissioner, you've had a fair bit of involvement with this organisation, trying to prevent disputes in the past, haven't you?
PN472
THE COMMISSIONER: I have. We'll resume at 12.
SHORT ADJOURNMENT [11.47am]
RESUMED [12.07pm]
PN473
THE COMMISSIONER: Mr Anderson.
PN474
MR ANDERSON: Yes, Commissioner. Look, I've taken instructions from Mr Reid and those instructions are that the company's view is that it's eight days; that is eight days commencing the day after the notice is given. Now, Mr Reid has attempted to make a - or has made a phone call to the mine to try and check records as to previous payments. Unfortunately in the short time that we've had we haven't been able to get those records to see what the actual past practice has been. I don't know if I can assist the Commission right now any further on that matter.
PN475
THE COMMISSIONER: Do you have anything to say about the logic that lies behind the decision that it's eight days? Eight days which don't necessarily correlate to any roster pattern at the mine.
PN476
MR ANDERSON: Well, Commissioner, I will just proceed with the submissions by saying that work for North Goonyella has ordinarily been carried out by Mr Lunny, so I'm not as familiar as he otherwise be with it. But you've asked for a submission on it. It appears to come down to the definitions, page 4 of the certified agreement. The definition of roster block deals with one work cycle attendance block and one work cycle absence block. The work cycle attendance block shall mean the working days where employees attend the mine.
PN477
So employees could attend the mine on occasions where there is a break in-between, which is the work cycle absence block. And it may well be a sensible interpretation that work cycle attendance block is interpreted to mean simply the days when they attend the mine. And if that's correct, Commissioner, then the company's interpretation of the eight days commencing the day after the notice was given seem to accord with 6.2 in terms - well, seem to accord with the definition of roster block for the purposes of the certified agreement.
PN478
THE COMMISSIONER: Can I just take you to the rosters in Appendix 1.
PN479
MR ANDERSON: I have those, Commissioner.
PN480
THE COMMISSIONER: My understanding that the roster at 1.1 is the roster that is in place at the mine.
PN481
MR ANDERSON: Yes.
PN482
MR CONROY: For the majority of employees, Commissioner.
PN483
THE COMMISSIONER: For the majority of employees. And that in accordance with the definitions of what constitutes a roster block for Crew A the block commences on Monday.
PN484
MR ANDERSON: Yes.
PN485
THE COMMISSIONER: And runs until - and I'm not - it would commence at 8 pm Sunday night. Is that right? And would run through until 8 am on the Tuesday, which is about nine days later when they start day shift.
PN486
MR ANDERSON: 8 am on the Monday.
PN487
THE COMMISSIONER: 8 am on the Tuesday.
PN488
MR ANDERSON: On the Tuesday.
PN489
THE COMMISSIONER: For Crew A the roster block starts presumably - would be eight days commencing the Monday.
PN490
MR ANDERSON: Yes. They commence their shift at pm on the Sunday night.
PN491
THE COMMISSIONER: Yes. So that is the roster block for the employees that are in Crew A.
PN492
MR ANDERSON: Right.
PN493
THE COMMISSIONER: And the following roster block commences on the Tuesday and runs for eight days. So it would finish - or start when they turn up for night shift. The next roster block would commence at the start of night shift on the Wednesday eight days later.
PN494
MR ANDERSON: Yes.
PN495
THE COMMISSIONER: Nine days later, I'm sorry. And this is the point of all of this. If it's only eight days - eight days, they are the roster blocks. There doesn't seem to be - for the people on that roster they are the roster blocks in accordance with the roster, which is what it says at the definition.
PN496
A roster block in the agreed roster in Clause 7 shall mean a block of days in the roster cycle comprising one work cycle attendance block and one work absence block.
PN497
Now, what it seems to be is - the company is saying is that it's for the purposes of 6.2 it's something else. Because the roster blocks for that roster for Crew A, and indeed for all the crews, are clear. They are the roster blocks in accordance with the definition.
PN498
MR ANDERSON: It would seem to me that for the purposes of 6.2 it's either the company's - well, it's either the company is right in terms of what a roster block is or the company is wrong in terms of what a roster block is for giving notice. And it doesn't seem to me that there's any alternative meaning of roster block for 6.2, so it comes down to your issue, Commissioner.
PN499
THE COMMISSIONER: Yes. For instance, if the employee - let's assume Mr Milburn - let's assume employee A; let's not assume Mr Milburn. Employee A works in Crew A; receives notice or gives notice on the first Tuesday there at some stage during the shift.
PN500
MR ANDERSON: Yes.
PN501
THE COMMISSIONER: The question then is does he actually finish - does the notice expire on the third Tuesday in that roster or does it expire eight days later? That is two part roster blocks.
PN502
MR ANDERSON: I understand. And I will - Commissioner, you've asked me for the company's interpretation and the company's interpretation is that it's eight days.
PN503
THE COMMISSIONER: Eight days.
PN504
MR ANDERSON: The day after. I can certainly try and get you records of what's happening - - -
PN505
THE COMMISSIONER: No, it's a point that - I mean, it's a point that needs to be clarified if it's not agreed by the parties as to what it means. And it may be that the union agrees with you, in which case you can exchange some letters and if I end up with a dispute I'm sure someone will hand up the letter.
PN506
MR ANDERSON: I'm happy to write a letter to the union, Commissioner. I don't know what response I will get.
PN507
THE COMMISSIONER: Well, let's find out. Mr Conroy.
PN508
MR CONROY: Commissioner, how it's been applied is as the company says.
PN509
THE COMMISSIONER: Eight days.
PN510
MR CONROY: The notice would actually start the next day. In terms of the logic of that - perhaps my logic is off but I see something else. Where it says, "May be terminated by written notice of one roster block" that means that the actual notice cannot commence according to 6.2 until the start of a roster block. So that if you're in mid-roster block and the party indicates that the employment relationship is being terminated, the actual notice cannot commence until the start of the next roster block.
PN511
THE COMMISSIONER: Presumably 6.2 could be read down that narrow, that the only day on which you can give notice is sort of at the start of the first shift of a roster block.
PN512
MR CONROY: That's right. And so therefore - - -
PN513
THE COMMISSIONER: Presumably, though, you could give more notice than that. That is, you could give part way through an existing roster block so long as you give one whole roster block of notice.
PN514
MR CONROY: Then the question would arise when does the notice actually begin.
PN515
THE COMMISSIONER: Well, providing you give at least one roster block you've complied with the obligations presumably in the award. The notice would begin when you give it, so it's more than a roster block.
PN516
MR CONROY: That's an interesting point.
PN517
THE COMMISSIONER: Well, the award should - I mean, you can only - you must give one roster block, no more, no less.
PN518
MR CONROY: That's right, and - look, I'm not going to go any further.
PN519
THE COMMISSIONER: Yes. My concern is that obviously the termination of employment, whether it's initiated by the employer or by the employee, is an important step and it should be clear what people's obligations and rights are, and it's your agreement and I'm happy to receive from the parties hopefully by no later than, say, next Tuesday a common understanding of the term so that everybody knows what the term means, because depending on how you approach this, it doesn't matter either way. It's your agreement, it's your term, so long as you can agree what it means I'm happy to accept that.
PN520
MR CONROY: Commissioner, with an issue like this I'm not going to try and put any spin on what the past practice is to use it to our advantage here. I think from what I've heard the company have said and now that we've said, how it's worked is it's eight days. Starts the next day after the notice is given and I think that's what's happened and it may be the one thing that's not broke at this joint - - -
PN521
THE COMMISSIONER: And again, all I'm saying is that if both of you are happy to go along with that, I'd like to see an exchange of letters that attach to the certified agreement or do what you like with it: keep them, frame them. But just so long as if it ever comes up in an unfair termination case, there is an understanding as to what it means, and as I say, I don't care either way, just so long as the parties understand what people's obligations are.
PN522
MR ANDERSON: And, Commissioner, you want to see an exchange of the correspondence, you indicated?
PN523
THE COMMISSIONER: I would like that.
PN524
MR ANDERSON: Mr Reid is not going to be at the mine on Monday. If I could seek an indulgence for some further time just to get that correspondence to you.
PN525
THE COMMISSIONER: Well, what I'll do is it's - having heard what's just been said, it's not a matter that I'll deal with obviously in the decision, and if - - -
PN526
MR CONROY: Yes. Commissioner, look, I think that's the appropriate part.
PN527
THE COMMISSIONER: If the parties are happy to continue with the roster block for the purposes of Clause 6.2 is eight days, and you can be much more precise about this in your renegotiations of this agreement, which is about to occur in the near future, then I'm happy to leave it at that.
PN528
MR CONROY: Well, look, it's on transcript that we're prepared to look at that, so perhaps if the company indicates on transcript we're all bound by it, to some extent.
PN529
MR ANDERSON: I've got instructions, for the transcript, to agree with the union on that point.
PN530
THE COMMISSIONER: Excellent.
PN531
MR ANDERSON: Certainly the company can write a letter to the union confirming the transcript agreement.
PN532
THE COMMISSIONER: Okay. That would be good.
PN533
MR CONROY: And as long as the company indicates that it's daytime at the moment. We'll agree with that as well, Commissioner.
PN534
THE COMMISSIONER: I'm not going to push my luck, Mr Conroy. I've got one agreement today. Mr Conroy?
PN535
MR CONROY: Just a brief point in response, but before I do I just need to clarify or take issue with a point you made before. My current law secretary is very upset. That dispute had nothing to do with the size of the steaks, if you recall. It had to do with the quality of the food.
PN536
THE COMMISSIONER: Sorry.
PN537
MR CONROY: And after the men decided to withdraw their labour because of the quality of the food when they were getting the bus back to Mackay, they stopped in at the village for a meal. But that aside, just one brief point, and that is in relation to 6.2. I think the company's argument about the option that it gives is just incorrect, and I'd just like to illustrate that by way of short example. And that is that if an employee turned up to work and said, "I'm resigning. I'm leaving." But then worked out the requisite notice period, according to the company's argument that employee would still have to forfeit wages for that period because they didn't give the notice in writing.
PN538
So, Commissioner, from our point of view it's just the "may" comes into play in relation to whether it's work out the notice or you forfeit or page wages in lieu of. It's mandatory that it's got to be written. And that's what at issue. That's all I wanted to say, thanks, Commissioner.
PN539
THE COMMISSIONER: Very well. Thank you. I'll reserve my decision in this matter. It will issue in writing certainly within the next week. I adjourn the Commission.
ADJOURNED INDEFINITELY [12.24pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
BRETT JOHN MILBURN, SWORN PN54
EXAMINATION-IN-CHIEF BY MR CONROY PN54
EXHIBIT #CFMEU1 STATEMENT OF BRETT JOHN MILBURN PN62
CROSS-EXAMINATION BY MR ANDERSON PN64
WITNESS WITHDREW PN187
SONYA NICOLE OLSTHOORN, SWORN PN190
EXAMINATION-IN-CHIEF BY MR ANDERSON PN190
EXHIBIT #NGCM1 AFFIDAVIT OF SONYA NICOLE OLSTHOORN SWORN 25/03/2004 PN201
CROSS-EXAMINATION BY MR CONROY PN204
WITNESS WITHDREW PN217
SONYA NICOLE OLSTHOORN, RECALLED PN224
CROSS-EXAMINATION BY MR CONROY PN224
RE-EXAMINATION BY MR ANDERSON PN272
WITNESS WITHDREW PN278
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