C2005/98, Transcript of Proceedings [2005] AIRCTrans 1180 (23 May 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11545-1

COMMISSIONER ROBERTS

C2005/98

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
AND
ENDEAVOUR COAL PTY LIMITED
s.99 - Notification of an industrial dispute
(C2005/98)

SYDNEY

12.05AM, THURSDAY, 12 MAY 2005

Continued from 4/5/2005

PN52

THE COMMISSIONER: Good afternoon. This is listed for report back, I take it?

PN53

MR WOODBURY: Yes, Commissioner. I might take the lead because I think the matter was left on the last occasion to allow the company to consider the position, bearing in mind a revision of the claim that was made during conference on the last occasion.

PN54

THE COMMISSIONER: Yes. It comes back to me now.

PN55

MR WOODBURY: I think you might recall, I think that the decision we reached at the end of the conference was that the claim that was being put forward at the end was to the effect that certain electrical tradesmen should be reclassified within the existing terms of the agreement, and not, as we had apprehended at the beginning of those proceedings, that they wished to vary the rates of pay for particular classification levels within the agreement, or, for example, new classifications, which would have amounted to a variation of the agreement.

PN56

THE COMMISSIONER: That is as I understand the situation when we last finished, yes.

PN57

MR WOODBURY: And the Commission might recall that I raised some difficulties from a jurisdictional point of view with the latter approach and therefore the claim just provides, as I say, to effectively say that it was actually looking at individual employees and their possible reclassification within the existing structure. We have gone away and had a look at that point and whilst we oppose the claim from a jurisdictional point of view, if it is framed under section 170LW, it is a dispute in relation to the classification or reclassification of particular individual employees. The case law seems to suggest that the dispute would be opening up occasion for the agreement the Commission would then seek to deal with it. So, to that extent, if that is the claim it is our concern that we would not have any jurisdictional objection to raise in relation to that matter although we oppose the merit of the claim. So that is where we sit, Commissioner, subject to anything that Mr White wishes to put.

PN58

THE COMMISSIONER: Good. Thank you. Mr White?

PN59

MR WHITE: If it please the Commission. We also left that last conference with yourself and went back to the site and actually went down that road to pursue that, your Honour.

PN60

THE COMMISSIONER: Do you have any - - -

PN61

MR WHITE: I don't have any problems with what he has putting up as to a reapplication to have the Commission deal with it. But certainly, I am trying to indicate to the company that part of the process of grievances on site is actually for the people and management on site to try and address the issue rather than taking up the Commission's valuable time. We left with certainly a direction to try and solve this on site and went back and formulated grievance to the site, and at this stage the company hasn't even responded to the grievance in an endeavour to try and solve it without wasting the Commission's time. And so, although we will go along with a reapplication, the issue for us is the company's non-response to grievances on site is becoming more and more predominant and that is why we are coming to the Commission to seek conciliation. And so I certainly want to make that for the Commission's knowledge.

PN62

THE COMMISSIONER: Good. Thank you, Mr White. Mr Woodbury, in addition to now we are all ad idem about what we are talking about. It took a bit of doing, I think, last time but we are there all on the same page. Do you have a response to the specifics of the claim?

PN63

MR WOODBURY: Due to the specifics of the claim?

PN64

THE COMMISSIONER: You say reclassify, they say wrongly classify but apart from that.

PN65

MR WOODBURY: Yes. Look, in terms of the knowledge I have as to the grounds for the proposed reclassification, the company's view on merit of that is that there is effectively no merit in that the fact of the matter that a number of employees, or one employee, two employees might be classified as ..... competent person, that is what the reliance has been placed on by the union to try and say that they should be reclassified. We don't see that that necessarily is something that is so special that it requires a reclassification, in fact it is a general term that is used as I understand it under the Coal Mining regulation Act and as part of a safety requirement that there be competent people. It is a standard requirement, but we don't see that it necessarily sounds in requiring any reclassification or additional remuneration. That is really, I think, the nub of the issue.

PN66

THE COMMISSIONER: So your answer is, no. Where does that leave you?
Mr White will lead the case.

PN67

MR WHITE: Well, your Honour, our issue certainly is that the CP classification for a surface electrician is not only a safety issue but it is also a legal onerous position, up and above a normal electrician. These people have to certainly put in place putting power on and making sure inspections are done before they put that power back onto whatever has occurred. They are the people that wind people out of the pit in safety situations when power is off and have a legal responsibility way up and above a normal electrician. And I would seek that the company be forced into some sort of discussions rather than just come around with a position in an attempt to try and not waste the Commission's time.

PN68

THE COMMISSIONER: I won't force them but I will certainly encourage them to have discussions on site with you and I anticipate there be no problem from the company's view, would there about that?

PN69

MR WOODBURY: No, Commissioner.

PN70

THE COMMISSIONER: So I am left with that still hanging question, where do we go now?

PN71

MR WOODBURY: Well, Commissioner, I think the next step - Mr White could cavil with this, but if the discussions don't resolve the matter, that they would then file effectively an application under section 170LW that reflects effectively the dispute and the claim that they wish to make. Bearing in mind that - - -

PN72

THE COMMISSIONER: This one could be amended though, couldn't it?

PN73

MR WOODBURY: Yes, provided it is under section 170LW, amend this claim- - -

PN74

THE COMMISSIONER: If Mr White was to apply to me to use my general powers to change this into an - abracadabra, changed into an LW, would you be opposed to same?

PN75

MR WOODBURY: No, we wouldn't be opposed to that.

PN76

THE COMMISSIONER: Well, can I hear from Mr White on that point there?

PN77

MR WHITE: I would be a party to that, your Honour.

PN78

THE COMMISSIONER: No. You have to actually ask me to do it.

PN79

MR WHITE: I would ask you that you do that.

PN80

THE COMMISSIONER: Well, Mr Woodbury has already advised that he is not opposing me exercising my general powers under the Act. This matter will now proceed as an application pursuant to section 170LW. So now that we have an LW before me, the parties will confer on site. Do the parties wish to put something on the record about when those discussion will occur?

PN81

MR WHITE: Your Honour, if I could indicate my availability that I will be in Brisbane next week but I only have two other dates that I am out of action and the following week, which should be the 24th and the 25th, because of our union structure with meetings on the rank and file but other than that any other day the company wishes to seek.

PN82

THE COMMISSIONER: Let's just go off the record for a moment.

<OFF THE RECORD

PN83

THE COMMISSIONER: I have discussed with the parties the progressing of this matter. It has been agreed between the parties that they will meet on site at the mine within the next 14 days on one or more occasions to discuss this matter and leave is granted to the union to make application for this matter to be re-listed before me at short notice should it be so required. Anything further?

PN84

MR WOODBURY: No, thank you, Commissioner.

PN85

THE COMMISSIONER: We are adjourned.

<ADJOURNED INDEFINITELY [12.13PM]