C2005/4157, Transcript of Proceedings [2005] AIRCTrans 2346 (14 November 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 13337-1

SENIOR DEPUTY PRESIDENT DRAKE

C2005/4157

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
AND
COOK’S CONSTRUCTION PTY LTD
s.99 - Notification of an industrial dispute
(C2005/4157)

SYDNEY

9.36AM, TUESDAY, 01 NOVEMBER 2005

Reserved for Decision

PN1

MR K ENDACOTT: I appear for the Construction Forestry Mining and Energy Union (Mining and Energy Division) Northern Districts Branch, with me MR S PEEL and MR M BARRETT who are lodge officials of the CFMEU Donaldson Lodge, if your Honour pleases.

PN2

MR B DUDLEY: I appear for the respondent, Cook's Constructions Pty Ltd.

PN3

MR ENDACOTT: This matter is listed for hearing today. Certainly I'd go straight into the evidence. It's our intention to bring evidence from one witness today, Mr Stephen Peel, a lodge official. Mr Peel's statement's been filed with the Commission as has an outline of submissions. I also wrote to the company indicating there were a couple of other items to be tendered to the Commission in evidence which, briefly described, is the statutory declaration filed on certification of the Cook's Construction Agreements and we also indicated that we'd provide a copy of the award and we'd make reference to a dictionary definition of service.

PN4

So in saying that, if your Honour doesn't have a copy of the award, I - - -

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN6

MR ENDACOTT: I call Mr Peel into the witness box.

<STEPHEN JOHN PEEL, SWORN [9.39AM]
<EXAMINATION-IN-CHIEF BY MR ENDACOTT

PN7

MR ENDACOTT: Can you provide your full name and address to the Commission?---Stephen John Peel, (address supplied).

PN8

Mr Peel, have you prepared a statement to these proceedings?---Yes, I have.

PN9

Do you have a copy of that statement with you?---Yes, I do.

PN10

Does that statement constitute six pages and 21 paragraphs?---Yes, it does.

PN11

And attached to that statement are a series of annexures marked SJP1 to
SJP6?---Yes, that's correct.

PN12

Do you swear to the accuracy of that statement to your best knowledge and belief?---Yes, I do.

PN13

Thank you. I have no further questions of this witness, your Honour.

PN14

MR DUDLEY: Your Honour, as will be clear, I think the submissions that were filed on behalf of the respondent, we don't seek to challenge the statement of Mr Peel so I have no questions in cross-examination. Subject to that qualification on the basis of the question before the Commission we don't consider that evidence is necessary.

EXHIBIT #CFMEU1 STATEMENT OF STEPHEN JOHN PEEL
<THE WITNESS WITHDREW [9.40AM]

PN15

THE SENIOR DEPUTY PRESIDENT: If you could just tender those documents you intend to rely on now, Mr Endacott.

PN16

MR ENDACOTT: Thank you, your Honour. I've tendered four documents and the documents are in the order that they would be provided, so the top document would be the statutory declaration in respect of the application under Division 3 by Gavan Williams and it says the type of agreement Cook's Construction Donaldson Mine Pty Ltd Certified Agreement 2002-2005. I'd ask that to be tendered. I'd ask that to be tendered.

EXHIBIT #CFMEU2 STATUTORY DECLARATION OF GAVAN WILLIAMS

PN17

MR ENDACOTT: The second document was a statutory declaration in respect of an application under Division 2 and it is the statutory declaration of Phil Gunter of Cook's Construction for the Cook's Construction Donaldson Mine CFMEU Certified Agreement 2000. I ask that to be marked in evidence.

EXHIBIT #CFMEU3 STATUTORY DECLARATION OF PHIL GUNTER

PN18

MR ENDACOTT: The third document again is a statutory declaration in respect of the application under Division 2. It's a statutory declaration of Steve Crockford and it is for the purposes of certification of the Cook's Construction Donaldson Mine CFMEU Certified Agreement 2000.

EXHIBIT #CFMEU4 STATUTORY DECLARATION OF STEVE CROCKFORD

PN19

MR ENDACOTT: The last document which I tender which I don't ask to be marked in a formal sense, your Honour, is an extract, as evidence, is an extract of the Macquarie ABC Dictionary that deals with the definition of service which I'll refer to in the submissions and, certainly, I tender our outline of submissions on behalf of the applicant.

PN20

THE SENIOR DEPUTY PRESIDENT: I don't think that needs to be a tender. I'll just keep that with the other documents.

PN21

MR ENDACOTT: Thank you. That concludes the case for the CFMEU, other than to make final submissions, depending on what else my friend from the company wishes to do.

PN22

THE SENIOR DEPUTY PRESIDENT: All right. You don't intend to call any evidence?

PN23

MR DUDLEY: I'm happy to go to final submissions, your Honour. We don't seek to bring any evidence before the Commission to answer the question before it.

PN24

THE SENIOR DEPUTY PRESIDENT: All right, Mr Endacott.

PN25

MR ENDACOTT: Thank you. Your Honour, we've set out an outline of submissions and those submissions deal essentially with the bulk of the submissions I wish to make, so I'll only make some additional submissions to expand a couple of points and to respond to the company's submissions. Your Honour, the question for determination as set out in paragraph 6 of our outline of submissions, which is Cook's Construction Pty Ltd required to accrue a leave entitlement for an employee in relation to a period in which the employee does not attend for work, but is receiving Workers' Compensation.

PN26

Certainly it would appear the matter at issue is the interpretation of the operation of clause 14.1.1 which reads:

PN27

Employees are entitled to five weeks' 25 days annual leave at the base shift for each completed year's service, that the employee which shall accrue pro rata at 4.329 hours with each completed week of service, being 225 -

PN28

which is 25 times nine ordinary hours' payment. Ultimately the company asserts that completed years of service means for the accumulation of long service leave completed is actually performing work - for Workers' Compensation, completed years of service actually performing work. That's for annual leave purposes. Certainly we submit that Workers' Compensation is the performance of service and that clause appropriately would afford employees that are in receipt of Workers' Compensation but not required to attend as a result of their illness or injury Workers' Comp, not required to attend work as a result of them being - receiving an injury and being in receipt of Workers' Comp, to attend work, would have their annual leave accrued.

PN29

Your Honour, the definition of service we say is sufficient for, on a plain reading of the operation of the clause for Workers' Compensation or the period absent from work on Workers' Compensation is service and in taking you to the dictionary definition tendered, service at point 1 says:

PN30

An act of helpful activity.

PN31

At point 6 when it's looking at what service means says:

PN32

The performance of duties as a servant occupation or employment as a servant

PN33

And then point 7 says:

PN34

Employment in any duties of work for another.

PN35

Certainly we say that any person off the street, any reasonable person in reading the clause, in saying is a person on Workers' Comp, performance of service, well, they are in employment as a servant and we would say that it falls within that definition.

PN36

We also say that it is commonplace for employees on Workers' Compensation to receive annual leave payments and that there is no ubiquitous understanding in the industry that service doesn't mean while absent on leave on Workers' Comp. If service did mean the actual performance of work and therefore the annual leave clause afforded that you actually had to perform work in each week to be completed service, then manifestly any time you weren't in attendance at work would mean that you weren't accruing annual leave. But other than Workers' Compensation there are a whole series of reasons why someone made the absence from performing work while still in employment, and then I'm thinking jury service, bereavement leave, sick leave, long service leave, annual leave itself, and as I understand the employer's argument and the company, they're not saying you don't accumulate for those reasons.

PN37

I think they're saying that for some reason Workers' Compensation should be treated differently from the global concept of what would be understood to be service. That is, that they actually give no justification, we say, in their arguments and their submission about while being absent on annual leave or absent on long service leave or absent on sick leave or bereavement leave would be service, and absence on Workers' Comp would be not. So we would say that in any reasonable person negotiating a better understanding would be of the view that clause would operate in that fashion.

PN38

Further, we say about the nature of the certified agreement itself, and this is for a later point, the actual certified agreement acknowledges Workers' Compensation. I might just take your Honour to the relevant parts of the certified agreement. It's SJP4 and it's clause 21 which says:

PN39

21. Workers' Compensation. An employee who is injured during the course of his employment shall be entitled to claim in accordance with the Workers' Compensation Act 1987, as amended, as it relates to the Coal Mining Industry.

PN40

Further, clause 4.3.4 of the certified agreement also refers to Workers' Compensation and it says the following unchanged award clauses are referenced in this document but are repeated in full. It says Worker's Compensation as per award clause 22 paid at the base shift, accident pay as per clause 22 paid at the base shift.

PN41

Now, if you go to the award that has been tendered, your Honour, accident pay is dealt with in clause 22 because in the coal mining industry, as some other awards provide, there is an accident pay clause which actually affords payments in addition to the statutory obligations to be afforded to employees while they're off work on Workers' Comp, and it says at clause 22, Accident Pay:

PN42

An employee in receipt of weekly payments under the provisions of the WorkCover Queensland Act 1997 or the Workers' Compensation 1987 New South Wales or Workers' Compensation Act 1927 and 1988 Tasmania, will be entitled to receive accident pay from the employees subject to the following conditions and limitations. Payment to be made during incapacity -

PN43

and then it outlines how long it goes for, which is a period of 78 weeks, and then it says, if you go to 22.2.1 it says:

PN44

For the initial period of 39 weeks form the date of injury a weekly payment representing the difference between the weekly amount of compensation paid to the employee by virtue of the said amount and the weekly amount that would have been received by virtue of the said award had the employee been on paid sick leave at the date of injury.

PN45

Which would make up the pays if you were on sick leave. Then at 22.2.2 he talks of what happens for the rest of the 39 weeks which is made up the classification rate.

PN46

So there is an acknowledgement both in the certified agreement and in the award that payments received for Workers' Compensation but also that there is a regulation of Workers' Compensation and a payment. So it's not that it's some unauthorised absence or non absence dealt with by the employer. The award specifically provides for the payments to be made and as it does for jury service and other payments like long service leave, annual leave, all of which it's not disputed is service, even though persons aren't required to attend and that would result in the accrual of annual leave in accordance with the cause at issue.

PN47

So we submit that, your Honour, on its face that the employees clearly and unambiguously are entitled to accrue Workers' Comp. But we say if it can't be read reasonably from its terms in that fashion and the Commission needs to go further and look at some extraneous or other evidence to support that interpretation and we say, well, that further supports that annual leave should have been approved while on Workers' Comp, and we say that's supported because of the unchallenged evidence of Mr Peel where Mr Peel says at clause 12:

PN48

I have been informed by the company that the terms of the certified agreement were to be read in conjunction with the award and no term of the certified agreement was less than the term of the award.

PN49

That was not controverted by the company. We also say that the whole history of what happens, in that if your Honour looks at the evidence of Mr Peel, is, well, they always did accrue it. His understanding and all the employees have got the same view and the company doesn't bring evidence to them either that always accrued it, but they stopped Mr Thompson for a reason - well, they didn't pay him out on termination and then for other employees, once they got past 13 weeks of accruing it, they didn't just stop accruing. They took the lot off them and said there was a policy to that effect after an inquiry and in fact the policy, you know, could never be produced in writing.

PN50

Certainly we say that the interpretation we press is that that's the way the company afforded the entitlement under the previous agreement, under the current agreement until some discussion was made at some point that it would be cut off at 13 weeks, and we say the reason why they did that - and I can't put this to a witness of the company because we say it's open for the Commission to conclude the reason why they did that because that's the way that the agreement would operate.

PN51

We also say that what supports it is the fact that the statutory declarations were filed, your Honour, and they're all in the same terms when the agreement was certified and when that agreement is certified the rules of the Commission require that a statutory declaration be completed in a completed form addressing particular points and one of the points is inquiry of - and it's 6.3:

PN52

Would certification resolve on balance in a reduction of overall terms and conditions of employment if the employee is covered by the agreement under relevant or designated awards or laws of the Commonwealth, a state or territory.

PN53

Now, the answer to that in all the declarations that have been provided is known. Now, I understand that doesn't necessarily help because that's the global question. But question 6.4 then requires that the parties that filed the stat dec identify, if a term is less than the award, what that term is, and it reads this:

PN54

Please identify by referring to specific clauses in the agreement any reductions in the terms and conditions of the employees under any relevant or designated award or other law. If there is no reduction proceed to 6.7.

PN55

Now, all of the statutory declarations presented don't answer that question. They in fact, as is required, if there's no reduction, they pass it and they either leave it empty or, as in others say, not applicable. We say well, this certainly supports what Mr Peel had been informed, is that there was no term less than the award and the company doesn't dispute the award clause provides - you know, used as a slightly different terminology and there'd be no dispute within the same terminology would be used.

PN56

The other point that we say supports our interpretation should your Honour have to look behind the key wording because some ambiguity may exist, is the fact that, in our submission, the company uses the words service and employment interchangeably. Now, as I think people in the general community do, if I take your Honour to the SJP5, which is the termination letter of Mr Thompson, it says:

PN57

As per the Coal Mining Industry Production Engineering Award, we hereby give you four weeks' notice of a termination of your services.

PN58

So when the company has actually terminated the employment it hasn't, as they tend to suggest in their submissions, said well, the concept of employment is totally alien to the concept of services.

PN59

They've actually used the terminology services to actually terminate the employment. I mean, the company wasn't of the view that services meant something different to employment. They use the term. Considering that the open paragraph to that is:

PN60

We wish to confirm that the period of 78 weeks from the date of incapacity has elapsed. As discussed it is unlikely that you will be fit to return to normal duties in the foreseeable future.

PN61

So you know, at the time of writing the letter there's no expectation, look, they're not actually performing any work, but they still use the word services, and we say that supports the term, and this is signed by the Project Manager at Donaldson Mine, it supports the assertion that the word services and employment is interchangeable.

PN62

Now, the last point I wish to address is the point on some of the decisions that have been referred to by my friend in their submissions and they refer to the definition of continuous service and they say the issue of continuous service has been determined and that if you're absent from work, not performing duties, then a break in continuous service. Well, firstly the term continuous service isn't used. It's completed, either weeks or years of service. Further is if complete the weeks or years of service is meant to mean continuous service, then the certified agreement has a definition for continuous service and then in the long service leave clause that provides you don't take into account long service leave.

PN63

But further, the decisions that have been referred to, which is the Restaurant Keepers' Award and - or the ones I was able to get access to, one being the Restaurant Keepers' Award, and the decisions referred to by the applicant in that award, all actually are looking at taking of industrial action. It's said the taking of industrial action doesn't constitute continuous service. Well, being away from work on Workers' Compensation where you've been receiving payment in accordance with the terms of the award is certainly not, and then therefore taking industrial action is, we say, are two totally different beasts, your Honour.

PN64

But I will go to the Restaurant Employees' decision. Does your Honour have a copy of that?

PN65

THE SENIOR DEPUTY PRESIDENT: Insofar as you're answering the submissions of Mr Dudley at the present, Mr Endacott, I don't think you're obliged to answer all of those submissions except in reply. If you'd rather wait until Mr Dudley has addressed me and then reply?

PN66

MR ENDACOTT: Well, I may do that.

PN67

THE SENIOR DEPUTY PRESIDENT: Whichever is more convenient to you.

PN68

MR ENDACOTT: No, I will do that, your Honour.

PN69

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN70

MR DUDLEY: Thank you, your Honour. I don't wish to take up too much of your time on this. We primarily rely on the written submissions that we've filed with the Commission. That was on 21 October but I'd just like to highlight a few points and respond to my friend's submissions. It's clear, your Honour, what the question before the Commission is and as my friend said, that's whether Cook's Constructions Pty Ltd is required to accrue annual leave entitlements for an employer in relation to periods during which the employee does not attend for work, but is receiving Workers' Compensation payments.

PN71

Now, in the respondent's submission the only possible answer to that question is no and as we've set out in our submissions there are a number of reasons for that. In particular the words of the clause in question itself, that's clause 14.1.1 of the certified agreement and the established industrial meanings of the words used in that clause. In our submission the law on those words is clear and to accept the applicant's contentions would fly in the face of the authorities. Now, I might just take this opportunity to hand up the authorities that we have referred to in our submissions. I think your Honour already has a copy of the Restaurant Keepers' Award decision. Is that right?

PN72

I'll hand up to your Honour the other decisions which are the Birmingham v Francis decision and the Australian Journalists' Association v Advertiser Newspaper decision, those are just for your reference, your Honour.

PN73

THE SENIOR DEPUTY PRESIDENT: Yes, I have them.

PN74

MR DUDLEY: What the respondent says, your Honour, as I say, are the applicant's contentions about the meanings of the words used in the clause in the certified agreement would fly in the fact of those authorities and even in the face of the very definition that my friend has referred to in the Macquarie Dictionary. The definitions there referred to included an act of helpful activity and the performance of duties. Now, we would say that when an employee is absent from work and he's being paid Workers' Compensation payments, that employee is not performing any acts of helpful activity, nor are they performing any duties.

PN75

We would say that accordingly, not providing service and under the terms of the clause in the certified agreement not entitled to the accrual of annual leave credits. We also say that that conclusion is clear from a comparison of the words in that clause with the words in other clauses in the certified agreement and also with the clause in the underlying award, the Coal Mining Production - I think your Honour has a copy of that.

PN76

THE SENIOR DEPUTY PRESIDENT: Yes.

PN77

MR DUDLEY: The Coal Mining Production and Engineering Award. It is clear, your Honour, that there is a difference between the words that are used in 14.1.1 and in other clauses in the agreement. I've taken your Honour in the written submissions to the words used in relation to sick leave. That's clause 13.2.2 which refers to the employment anniversary for an employee. The other clause I've taken you to in the written submissions is the retrenchment pay clause which refers to completed years of service in the same way that the annual leave clause does.

PN78

Now, in the underlying award you will see, your Honour, at clause 29 that the entitlement in clause 29 is:

PN79

An employee must be credited with annual leave on each anniversary of that employee's employment.

PN80

Now, it's clear, your Honour, that there's a difference between the award entitlement and the entitlement in the certified agreement. We say that they are different entitlements based on the well established industrial usage of the terms service and employment. Those terms are distinct. They're not completely alien as my friend has put it. A period of employment will include periods of service, in the sense that an employee can remain in employment with an employer, but may not be providing service at particular times during that period of employment.

PN81

So they're not totally alien. They are related concepts, but distinct in that sense and we would say that time spent absent from work whilst receiving Workers' Compensation payments is not service, unless there is particular legislation or particular words in an award or an agreement that deems it to be so, and my friend hasn't pointed you to any authorities which suggest that the concept of service would include, at least in New South Wales, periods spent absent on Workers' Compensation.

PN82

THE SENIOR DEPUTY PRESIDENT: What do you say the effect then of the worker being paid by the employer during that period, what effect does that have?

PN83

MR DUDLEY: The effect of the?

PN84

THE SENIOR DEPUTY PRESIDENT: The fact that the worker is being paid by the employer during that period?

PN85

MR DUDLEY: In the sense of the accident pay provisions, your Honour, is that - - -

PN86

THE SENIOR DEPUTY PRESIDENT: Being paid by either the compensation insurer or the employer as a self-insurer? Is the employer insured separately?

PN87

MR DUDLEY: I understand that the respondent has insurance with Coal Mines Insurance.

PN88

THE SENIOR DEPUTY PRESIDENT: Right. For the purposes of the insurance the payment is made - the insurers in the place of the employer, I understand it, and also the employer is paying the worker during that period. What effect do you say that has on your submission?

PN89

MR DUDLEY: We would say the fact that the employee is being paid is associated with the concept of employment rather than the concept of service in the sense that the employee is continuing in employment. He or she may be or may not be receiving salary or wages. That is a separate question to whether the employee is providing service at a particular time.

PN90

THE SENIOR DEPUTY PRESIDENT: Right, thank you.

PN91

MR DUDLEY: Your Honour, as I've mentioned in the written submissions there's nothing in the Workers' Compensation legislation itself which requires annual leave accruals for periods when employees are absent on Workers' Compensation, nor is there anything in that legislation which deems time absent from work on Workers' Compensation to be service. I've referred, I think, on the last page of the submissions, perhaps the second last page, page 9 of the respondent's written submissions to section 49 of the Workers' Compensation Act 1987. I can hand up to your Honour a copy of that section if it's useful for you.

PN92

THE SENIOR DEPUTY PRESIDENT: thank you.

PN93

MR DUDLEY: But that section, we would submit, is not a section that answers the question for you. I hand it up to demonstrate that this section in the Workers' Compensation Act reflects the only place in that Act where there's an intersection between annual leave and Workers' Compensation and that section simply says that compensation payable under the Act in respect of any period of incapacity, even - sorry, your Honour:

PN94

Compensation is payable under the Act to a worker in respect of any period of incapacity for work, even though the worker has received or is entitled to receive in respect of the period any payment, allowance or benefit for holidays, annual holidays or long service leave.

PN95

That section, your Honour, relates to the fact that an employer might be taking, say, annual leave during a particular period, employees still entitled to payment or compensation under the Act. That does not mean that during the time the employee is absent from work that the employer is obliged to accrue annual leave credits. It simply does to say that and there is nowhere else, and my friend hasn't pointed to anywhere else in the legislation where time spent absent from work on Workers' Compensation is deemed to be service or obliges the employer to accrue annual leave credits.

PN96

Now, your Honour, if the question before you was to the effect of what should the entitlement be, what would be fair in all the circumstances, what did the parties think or intend the entitlement to be, what might be common place in the industry, or even what do the statutory declarations that were filed some two years ago say about the matter, if those were the questions before the Commission, we might then have an argument about what the answer is. If your Honour was considering an application for a new award, what the appropriate entitlement for employees was, if your Honour was presiding over a conference to assist the parties in reaching a new agreement, then we could have an argument about what the entitlement should be, what's fair, as I've mentioned.

PN97

That's not the question before the Commission. The question before the Commission is, on the words "in the agreement" is there a requirement to accrue annual leave whilst an employee is on Workers' Compensation and absent from work. As I say, there is only one answer to that question in our submission. What we say the applicant is seeking to do in this case is to vary the clear meaning of the words in the agreement, to change the word from service to employment and that's something that in my respectful submission we say the Commission cannot do and should not do in these circumstances.

PN98

The Commission made an order on 18 February 2003 that this is the certified agreement between the parties. My friend hasn't bought an application seeking to challenge the validity of that certification, has not brought an application to vary the agreement on the basis that it's ambiguous or uncertain. Those are not things we're here to talk about today. Only in those cases, if an application was brought to challenge the certification or if an application was brought to vary the agreement on the basis that it is ambiguous or uncertain, only in those circumstances would we be looking at the extraneous evidence that my friend has brought.

PN99

I hope it's clear to your Honour from the written submissions that the respondent has filed that the respondent does not consider that any evidence is necessary to answer this question and that's the very reason that we didn't bring any evidence, we didn't cross-examine Mr Peel. The question simply relates to the words in the agreement. We don't think that there's any ambiguity or uncertainty and on that basis we don't think there's any need whatsoever to refer to other matters in the interpretation of the words in the agreement.

PN100

THE SENIOR DEPUTY PRESIDENT: Do you have a copy of the agreement there, a spare one? It won't be no great matter, I can print one off.

PN101

MR ENDACOTT: There is one attached to the certified agreement. It's a bit small, that printing on it.

PN102

THE SENIOR DEPUTY PRESIDENT: It doesn't matter, Mr Dudley.

PN103

MR DUDLEY: I do have a copy, it's marked with a couple of my flags, I can remove those, your Honour.

PN104

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, go on.

PN105

MR DUDLEY: Your Honour might ask what's the industrial reality of the situation and might I venture to suggest that perhaps there's been a misunderstanding by various persons, whether from the applicant, whether from the respondent, as to what the words in the clause mean. That may be - - -

PN106

THE SENIOR DEPUTY PRESIDENT: And if I accept what you say about what is my task, that's not a question that will arise, will it, what is the industrial reality?

PN107

MR DUDLEY: Well, indeed, your Honour. What we say about that is that if there has been a misunderstanding, then there's been a misunderstanding. That should not impact on what you're doing, your Honour, in the sense that if there's a misunderstanding, it's not the place for the Commission to come in and say, well, there's been a misunderstanding. One person thinks this about the agreement, one person thinks this about the agreement. Well, let's go with what one person thinks and that's how we should resolve the situation.

PN108

If you allow that kind of application to the Commission every time a misunderstanding arises as to the words in an agreement, I know it's often said, your Honour, but you simply open the flood gates. There'll be application after application, oh, well, that's not what we meant when we certified the agreement. That's not what we think it means. You know, let's go down to the Commission and resolve the situation down there.

PN109

The words in the agreement are clear. There's no ambiguity. The parties have agreed to put this question before you and that's the only question that we've put before you and simply to allow this kind of application whereby one party says, well, we think - when we certified the agreement we thought it meant one thing. When it comes two or three years down the track, no, we've realised it wasn't what we thought it was. It was something else. In terms of the statutory declarations and the other extraneous evidence, I don't wish to address those really, your Honour, because the basis of our submissions is that reference to that material is not necessary, but I might just mention that the termination letter, it's simply beyond me how the words in a letter of termination can be relied upon to interpret the words in a certified agreement.

PN110

With respect those comments were made in a completely different context. One, a letter of termination to an employee. The other is the question of what were the words in the certified agreement mean.

PN111

THE SENIOR DEPUTY PRESIDENT: When does this agreement terminate?

PN112

MR DUDLEY: In February 2006, so in two or three months, your Honour.

PN113

THE SENIOR DEPUTY PRESIDENT: Mr Dudley, I have here an agreement that was certified by Commissioner Roberts that says that in the material provided to him, that there's no clause, no detriment, no matter that's lower in it's terms of benefits for the workers than the award, then the employer's position is that there is such a particular clause. What do I do about that? Nothing?

PN114

MR DUDLEY: Well, we say the question for your Honour is what do the words in the clause mean. Not what - - -

PN115

THE SENIOR DEPUTY PRESIDENT: I understand what the question is before me. What do you say about the two matters before me in relation to that agreement? I should just ignore them?

PN116

MR DUDLEY: Well, for present purposes, yes, your Honour. If the applicant wants to challenge the certification and if the applicant wants to say that there is actually a reduction now and we should go back and we should fix up the agreement, then that's a matter for the applicant. The parties have agreed what the question before your Honour is.

PN117

THE SENIOR DEPUTY PRESIDENT: Thank you. Is there anything else?

PN118

MR DUDLEY: No, your Honour.

PN119

MR ENDACOTT: Thank you. Just very briefly to those. Just to further say, my friend didn't respond to part of my submission where I said, well, if his interpretation of service is right then why doesn't that apply to sick leave and bereavement leave and all those parts of it. The other thing is that it was put to us, well, why don't we challenge the certified agreement? I think my friend put it on the basis, well, if the applicant is now saying there's some detriment because there's a reduction in a term, then suggesting we should challenge that. Well, we say there is no detriment because there was no reduction. The company informed Mr Peel of that and in fact the company doesn't turn up today and deny it, it doesn't deny it at all.

PN120

I mean, the reason why my friend hasn't got evidence is not, as he speculates, that it is dis-related, because he knows what the company will say. They will say to this court should they have turned up exactly what they've said to Mr Peel and they said in the statutory declarations, there was no term less. Now, I know my friend is saying well it is a term less now for Workers' Comp and we would say that the company's failure to challenge that evidence is because there was no - I know the Commission comes with what evidence they would bring, but we'd ask the Commission to conclude the person wouldn't bring evidence that would assist them. That's why they have failed to do so.

PN121

My friend also talks about well, if there is a misunderstanding, the company brings no evidence to challenge what we say was all the employees' understanding. They're silent on that point and previously, your Honour, because they can't, they simply can't, my friend can't, and I know that he doesn't have a company representative turning up today and he may have done that because they want to be at the races.

PN122

THE SENIOR DEPUTY PRESIDENT: Don't we all.

PN123

MR ENDACOTT: Yes. He may have done it because the company representative, like Mr Williams, didn't want to sit there while he made a submission that was detriment when he filed stat dec saying there was no term less than - with us looking across at him wondering why he was putting a submission that was contrary to the assertion that's not been tested, or the statutory declaration that was filed by him.

PN124

But I'd finish on the last point and that is with respect of the decisions that have been referred to. There's a reference to the Restaurant Keepers' Award and most of the context where the issue of continuous service was defined, and it spoke about service, and it was really in the context of industrial action, but I say a couple of things. If you look at the Restaurant Keepers' Award that's been referred to, firstly, it's an application where they want to seek a declaration from the Commission, as it appears they can do under the legislation that was at issue, of how the agreement operated with respect to Workers' Compensation and further leave entitlements.

PN125

Firstly, whoever heard the case, Mr Westwood declined to make the declaration. He declined to make it because he said it shouldn't be different to how the legislation applies. He does say, and we say it's a comment - I think the term is - he doesn't go into any detailed sense about why he's made that conclusion, and there's probably no need to because he decided that he wasn't going to make the declaration. They sorted out how the agreement operated. He says:

PN126

If I were to leave aside Mr Cooper's submission with respect to the effect of the Workers' Rehabilitation Compensation Act on annual leave, and in respect of the application of section 62 of the Industrial Relations Act, I'd be satisfied, having considered the case precedence put forward by the other party, that the award does not provide for employee's absence on Workers' Comp to count such absences of service for the purpose of calculating entitlements to leave.

PN127

Now, he makes that comment just by adverting to the decisions that were referred to. But I also take you in part the submissions of the company in that case because it's a very different context. In that decision Workers' Compensation as I understand it was excluded from the definition of industrial matter in the legislation, excluded from the definition of industrial matter. So it wasn't like he had a reward term of what payment was. You had a pure statutory obligation. But Mr Gates who says this, Mr Gates submitted that:

PN128

Where an absence from service occurred which was a paid absence under the award, continuity of service was not broken because the award specifically recognised such an absence.

PN129

Now, if I can say that, that comment and the submission referred to in the submission is not a submission of the person advocating that Workers' Compensation accrued annual leave. It was a submission of the person saying that Workers' Compensation didn't accrue annual leave in that case. But what he's submitting is that, it is submitted that where an absence from service occurred, which was a paid absence under the award, continuity of service was not broken because the award simply recognised such an absence. That's what was said.

PN130

Then he goes on to say, he said:


Termination strikes or other unauthorised absences would break continuity as no agreement existed with the employer to not provide service.

PN131

So it's a totally different question and in fact Mr Gates' submission, if he was making it in our case, we would win, because he's saying if it's a paid absence, then it doesn't break the service if it truly was continuous service and whether or not it constituted a break. So it's a very different case and it's one of the points at which we say agreements should be looked at by looking at the terms of the award.

PN132

There's also a reference to the decision that's relied upon which - in that decision, which is the Forsyth's case which only deals with the issue of industrial action, not Workers' Comp where the person absolutely refused to perform work and the fact that it acknowledges that the people didn't go back to work until the Prime Minister issued some sort of direction which must have been provided for under the legislation, and one of the further cases referred to, your Honour, is the Wire Workers, Wire Fence and Tubular Workers' Union, it's one of the cases referred to in the Restaurant Keepers' case, and I might just tender that one.

PN133

If you go to the 189, and this again is a decision that deals - it's an appeal decision that deals with whether or not someone should look for entitlement of leave while taking Workers' Compensation. The last page deals with the majority decision which is Mara v J Kelly, and Mara says, "I agree with the reasons and conclusions of Kelly J." And it says:

PN134

The New South Wales award referred to in the order under appeal confer rights to annual leave subject to the performance by employees with 12 months' continuous service. I am of the opinion that continuity of service in this connection is not synonymous with continuity of employment in the sense of engagement.

PN135

Then he goes on to say:

PN136

I think that he can by his conduct in ceasing work without legitimate reason break the continuity of service with his employer. By going on strike these employees break the continuity of service for the purposes of annual leave provisions of the award mentioned.

PN137

So even when it's talking about - even when the Full Bench is talking about being absent, breaking continuity, they're dealing with continuity. But the majority of the decision talks about ceasing work without legitimate reason. It's not talking about like, the ceasing of work for the purpose of continuity. It's talking about without legitimate reason. That's one of the reasons why in the Restaurant's decision Mr Cooper talks about, your Honour, that if they're being paid, they're being paid for it, then it doesn't break continuity which is a distinction, of course, because in the Coal Mining Industry you have the entitlement of the under the legislation of the 78 weeks. You have the entitlement under the accident pay. It's not that the legislation requires it. The award requires the employer pay, and so it's a payment that's made and ongoing for that period.

PN138

Now, the practice in the Coal Mining Industry is that when you're setting out weeks' expire, if you're not fit enough to return to work, you get terminated. I mean, that's just the way it operates and historically section 99 in the New South Wales Act says if you're fit to return to work in two years you're required to be employed. It's a site issue. But there is payment made after that period. So we, your Honour, just rely upon the words of the agreement. We say that, reading on its face, it provides for the payment for the accrual of annual leave while on Workers' Compensation.

PN139

There can be some ambiguity in that that it's not service, and we say it should be - and your Honour needs to look further, to unchallenged evidence, that all the terms were superior for Mr - that's what he was informed by Mr Peel, the statutory declarations, the two of them by the company and one by the union, that there was no term less, the conclusion of Commissioner Roberts on certification, which is evidence saying there is no term less, and we make no further submission. If your Honour pleases.

PN140

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, Mr Dudley, your position is that the agreement is simply, on its face, clear and it supports your proposition and however if I find that if it is ambiguous you don't present any evidence?

PN141

MR DUDLEY: Well, we would say in relation to that, your Honour, that if you find that it's ambiguous, then that's a different question and that if it is ambiguous, then the applicant - well, if you find that it's ambiguous, it's then for the applicant to make an application to the Commission to vary the agreement to remove that ambiguity.

PN142

THE SENIOR DEPUTY PRESIDENT: Yes. I will reserve my decision, thank you.

<ADJOURNED INDEFINITELY [10.35AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

STEPHEN JOHN PEEL, SWORN PN6
EXAMINATION-IN-CHIEF BY MR ENDACOTT PN6
EXHIBIT #CFMEU1 STATEMENT OF STEPHEN JOHN PEEL PN14
THE WITNESS WITHDREW PN14
EXHIBIT #CFMEU2 STATUTORY DECLARATION OF GAVAN WILLIAMS PN16
EXHIBIT #CFMEU3 STATUTORY DECLARATION OF PHIL GUNTER PN17
EXHIBIT #CFMEU4 STATUTORY DECLARATION OF STEVE CROCKFORD PN18