AG2004/3026, Transcript of Proceedings [2004] AIRCTrans 1884 (21 May 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 11135
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DRAKE

AG2004/3026

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Wambo Coal Pty Limited and Another for
certification of the Wambo Coal Handling and
Preparation Plant Certified Agreement 2004

SYDNEY

10.23 AM, TUESDAY, 11 MAY 2004

PN1

THE SENIOR DEPUTY PRESIDENT: Good morning. Can I have your appearances please?

PN2

MR A. LONGLANDS: May it please your Honour I seek leave to appear on behalf of the applicant in this matter, Wambo Coal Pty Limited. I am from Freehills and with me is MR P. BROOKER, the CHET Manager at Wambo, and MR D. FLETCHER, from my office.

PN3

MR G. KELLY: If it pleases the Commission, I am from the CFMEU. With me is MR M. MUSGROVE, who is the Lodge Secretary, and MR L. LYNCH, who is the Lodge Representative.

PN4

THE SENIOR DEPUTY PRESIDENT: Thank you. Do you have any objection to leave?

PN5

MR KELLY: Probably I should always object, but we won't.

PN6

THE SENIOR DEPUTY PRESIDENT: Mr Longlands, you are in.

PN7

MR LONGLANDS: Thank you very much, your Honour. This agreement applies as will be evident from the materials to the coal handling and preparation plant at Wambo mining facility. That plant washes and crushes coal which is mined at the Wambo open-cut mine which is operated by a contractor - Roche Contractors - at present. There are some 12 persons currently employed in the preparation plant and the employment of all of those people will be subject to this agreement.

PN8

The negotiations for the agreement commenced almost exactly a year ago on 23 May 2003. I am instructed that the delegates here today, the CFMEU Vice President and two management representatives comprised the committee and that they had 40 meetings in that period. The agreement was reached some days prior to 1 April. At a meeting on 31 March of all of the workforce the negotiating team explained the terms of the agreement. It was then formally distributed on 1 April for the statutory 14 day period to commence. There were questions and consultations during that 14 days and at the conclusion of it a further meeting occurred to explain the terms of the agreement. I am instructed that further meeting occurred on 19 April. The Company representatives then left the meeting and were later informed that a vote occurred and by a show of hands a valid majority - that is a majority of those persons who caste a vote - voted in favour of the agreement.

PN9

There is only one matter which is perhaps a little out of the ordinary, your Honour, and that is that we did intend to draw your attention to a very minor typographical error that appears in paragraph 6. It is in the second paragraph of paragraph 6. You will note that that paragraph provides that the agreement:

PN10

Applies only to employees whose employment would be otherwise subject to an award.

PN11

The typographical error is twofold. Firstly the word "employees" ought to have had a capital "E" instead of a small "e". You will note that higher up on that page the word "Employees" is defined and we don't want any suggestion that we are talking about different groups by the use of the lower case. The second, and perhaps less significant, typographical error is in the name of the award. You will note that the use of a word processor seems to have produced a rather curious result. As a matter of convenience I have prepared another page which I have confirmed with my friends they have no objection to. I might just hand that to your Honour.

PN12

THE SENIOR DEPUTY PRESIDENT: Well, can I have that please.

PN13

MR LONGLANDS: Clearly the Commission has no jurisdiction to vary agreements. There have been suggestions in a couple of prior cases though whether with typographical errors such as this that the Commission can rectify those at the time that the agreement is certified.

PN14

THE SENIOR DEPUTY PRESIDENT: It is a good word "rectified", don't you think?

PN15

MR LONGLANDS: Carefully chosen, your Honour.

PN16

THE SENIOR DEPUTY PRESIDENT: Should I so rectify this error, you are sending a copy with the corrections made?

PN17

MR LONGLANDS: Yes, of course, your Honour.

PN18

THE SENIOR DEPUTY PRESIDENT: Of the rectifications.

PN19

MR LONGLANDS: The rectifications. Unless there is anything that your Honour - - -

PN20

THE SENIOR DEPUTY PRESIDENT: No, you seem to have a very clear dispute resolution clause on this occasion.

PN21

MR LONGLANDS: Yes. There is one final matter. I understand my friend will say some things to you about understandings that have been reached about the manner in which the agreement will be applied. We are content for him to do that. We are aware of those things and if there is any issue we will address it subsequent to his submission.

PN22

THE SENIOR DEPUTY PRESIDENT: Yes.

PN23

MR LONGLANDS: Thank you, your Honour.

PN24

THE SENIOR DEPUTY PRESIDENT: Mr Kelly?

PN25

MR KELLY: Thank you, your Honour. Your Honour, for my part these negotiations started on 31 July, about a week after I started. I was involved in 33 CA meetings and six report back to members. The CA as presented to yourself was issued to the employees on 1 April, as Mr Longland said, and a vote occurred on the 19th. I was present on the 19th. We went through each clause separately and the company representative, Mr Brooker, was there as well and we answered any other questions that were asked of us on the day. After some lengthy debate occurred the CA was endorsed by a valid majority of employees covered by the agreement and I would like also to put a few matters on the record.

PN26

The agreement is a stand-alone agreement. There were a number of difficult issues that the members had to address and agree to during the process and they were around manning; some new manning arrangements; some roles; some staff functions; supplementary labour dispute; consultation mechanisms; and remuneration and rosters.

PN27

Manning - nine employees have been given secure employment as a result of this agreement. It is outlined in clause 11 on page 8. A tenth employee is still employed and that tenth employee is Mr Arthur Ling. Mr Ling has a letter of commitment from the company which outlines that his employment is secure until the first train is loaded at Wambo which will happen probably in a year or so. If any one of the nine people leaves during the life of the agreement then Mr Ling automatically gets secure employment like the others. If the event occurs where he is retrenched after the first train is loaded then Mr Ling is given an option, through this letter, of returning to work. So that next time they want to employ someone that is not an electrician - because Mr Ling is not - he will be employed, or given the opportunity to be employed.

PN28

With regards to roles: all employees are classified as operator/technicians. There is no demarcation between technicians and co-ordinators - which are the frontline staff people. The members were concerned, your Honour, about the cherry-picking of roles, and the company has given us an undertaking that this will not occur when they are assisting the team and the crews in their functions.

PN29

Remuneration is another important aspect for us which will see all employees paid the same rate of pay which is the first time at the plant. Supplementary labour can be used from the best supplier, but it is a principle of equal pay and equal work; there is no demarcation if those people have the skills.

PN30

Rosters are detailed in appendix A which is on page 35. There are four rosters and the company has given a commitment that if they require one of those rosters - or a six-day roster during the life of the agreement they will allow the employees to select which one of the two six-day rosters they wish to work.

PN31

As far as the dispute clause goes, your Honour, clause 10, page 5 has two parts. One is the consultation process which is for significant matters and it also allows for input and resources for employees to be involved in that consultation. The other part is the resolving matters part which has an aim to resolve matters. It has a procedure, it has steps. In step 4, your Honour, it allows for referral to the Commission for conciliation and then by agreement arbitration or mediation. So we understand how that plans to work.

PN32

There is another important part from our point of view and that is the clause 16(c)(1), which is on page 33, that allows for paid union meetings within work-time. We believe this greatly assists in avoiding disputes because matters can be dealt with collectively and commitments that we have made currently can be honoured; and members then are able to get matters off their chest so to speak, and we can add greatly to that process. If it pleases.

PN33

THE SENIOR DEPUTY PRESIDENT: What is "cherry-picking"? Apart from the obvious. What do you mean? I just want a common understanding of what "cherry-picking" is, so that we can talk about it later.

PN34

MR KELLY: "Cherry-picking", from my point of view, it is where the co-ordinator the operator/co-ordinator would select the best job for themselves, for example. The classic would be on a wet, rainy night send everyone else out to be out in the wet, rainy night and they are sitting in a nice warm room and not taking it in terms like everyone else would have to do.

PN35

THE SENIOR DEPUTY PRESIDENT: Mr Brooker, those things - I saw you nodding at that time - all of those things referred to by Mr Kelly they are matters about which you have a common understanding, and it is as expressed by him?

PN36

MR BROOKER: Yes, the company accepts those terms.

PN37

THE SENIOR DEPUTY PRESIDENT: I will order a copy of the transcript for both parties so that you can have available on your files a copy of what was agreed and put on the transcript. And I will certify the agreement as today's date, thank you. I'll sign the certification document and you will have it as soon as it is stamped.

ADJOURNED INDEFINITELY [10.34am]