C2005/1845, Transcript of Proceedings [2005] AIRCTrans 451 (23 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10466

COMMISSIONER ROBERTS

C2005/1845

s.99 - notification of an industrial dispute

Construction, Forestry, Mining and Energy Union
and
Endeavour Coal Pty Limited
(C2005/1845)
West Cliff Colliery Certified Agreement 2004

SYDNEY

9.14AM, FRIDAY, 11 FEBRUARY 2005

PN1

MR A BUKARICA: I appear for the CFMEU, and with me I have
MR CARTWRIGHT, Lodge President of the West Cliff Lodge.
MR McLAUGHLIN and MR REES, Vice Presidents, and MR WHITELY, Secretary.

PN2

MR A DEARDEN: I appear on behalf of the Endeavour Coal Pty Ltd.

PN3

THE COMMISSIONER: Seeking leave I take it?

PN4

MR DEARDEN: Yes, Commissioner.

PN5

THE COMMISSIONER: Is leave opposed?

PN6

MR BUKARICA: Not opposed.

PN7

THE COMMISSIONER: Leave is granted. Mr Bukarica.

PN8

MR BUKARICA: If the Commission pleases can I first extend our thanks to the Commission, for bringing the matter on at such short notice. We believe the urgency of the matter is justified, given that a serious industrial situation is developing at the West Cliff mine. I perceive that perhaps this morning we are not going to get very far in terms of resolution of the dispute due to issues of - problems with representation on the employer's side. But nonetheless I will suggest a course to the Commission that may move the matter on, if we can't progress very far today.

PN9

Commissioner, the dispute involves a serious disagreement between the workforce and management at the West Cliff Colliery. The employees contend that management has reneged on solemn commitments given to the workforce regarding the conversion of employment status of a number of employees, about 70 in number, from fixed term to permanent employees.

PN10

THE COMMISSIONER: Do you have the agreement there to hand up to me?

PN11

MR BUKARICA: I beg your pardon Commissioner, I haven't had a chance to get the agreement, and I do apologise for that. I have, however, a copy of company presentations relating to the agreement which go to the matter that I want to address.

PN12

THE COMMISSIONER: I haven't had time to look up the dispute resolution procedures in the agreement.

PN13

MR BUKARICA: Mr Cartwright has a copy, and if the Commission pleases I can hand that up. Again, Commissioner I apologise for that.

PN14

THE COMMISSIONER: That's okay, I think we are all on the run at the moment.

PN15

MR BUKARICA: In relation to the dispute settlement procedure I do have only originals unfortunately. Here are two documents which pertain to it. There is a grievance form lodged by the union, some two weeks old, and a memorandum concerning a district conference, which I think - - -

PN16

THE COMMISSIONER: We can come to that later I think. I will take your word that it has been filed for the company. Sorry, I interrupted you.

PN17

MR BUKARICA: No. Commissioner, do you need a bit of time to refer to the procedure?

PN18

THE COMMISSIONER: No, I will do it as you speak.

PN19

MR BUKARICA: Commissioner, in relation to the dispute settlement procedure we submit that the union has followed the appropriate course and perhaps at the conclusion of this hearing I will ask your associate to make copies of the forms I have just referred to, for the sake of completeness. I will hand up, however, a copy of the presentation given by management to employees dated 15 September, 2004, and I am content for that to be just marked for information at this stage.

MFI #1 WEST CLIFF SITE AGREEMENT 15/09/2004

PN20

I will take the Commission to a section of that presentation shortly, but the contention of the union wishes to advance is basically this. That as part of the 2004, certified agreement negotiations the company made a commitment to employees as one of its selling points for the agreement, that, and this is in the context the Commission would know through the Commission's experience in other matters such as the Elouera dispute of last year, and the Appin certified agreement. The agreement which was eventually entered into by West Cliff employees involved concessions in relation to the wages issue, where there was originally some pursuit of a parity situation with Appin, and one of the selling points that the company put forward as an offset against parity with Appin, was essentially a firm commitment as to the status of 70 odd fixed term employees.

PN21

So, if the Commission refers to the document I have just sent you will see that there is various comparisons between relevant BHP mines in the district, and also I think there is reference to Metropolitan Colliery. Then on the second last page of the document, you will see a reference to a heading, what's in it for you. Day shift operator production normal week, where there is an explanation of the benefits accruing under the new agreement. Then on the right hand side the words appear, plus intend to put on permanently, 71 employees over a 12 month period dependent on quality of applicants.

PN22

Now, no doubt in due course the employer will make some particular stress on the words quality of applicant, but what the union says, and what we understand the - both the negotiators and employees were assured about, is that the 76 odd existing fixed term employees at the mine - the assurance is to the effect that almost all of those employees would be converted over that 12 month period to permanent status.

PN23

Since then there has been announcements, most recently, yesterday in a shift meeting, where management has informed the workforce that what in fact would occur would be that 20 fixed term employees, would be guaranteed conversion to permanent status but the remainder would be pitted against outside applicants, and would have no guarantee of permanent status. So from a position where something like 71 guaranteed permanent positions, or at least that is the perception of the workforce and their representatives, to a situation of 20 guaranteed, and perhaps some more, but no firm guarantees beyond that figure.

PN24

That is putting it in a very simplified way Commissioner. I don't wish to do much more in relation to explaining the nature of the issue, at this stage anyway, but the situation that has emerged is that employees think that they have been duded, and they have been given assurances which have really misrepresented the company's position at the outset, or the company has changed its position since the certified agreement.

PN25

There is a degree of anger. There was some possibility that as late as last night the night shift was going to take industrial action over this issue. Due to today's scheduling of the matter, that particular group of workers has adopted a view that they will wait and see the outcome of these proceedings. But in any case there is a great degree of concern and anger amongst the workforce about an apparent breach of agreement, if not in the terms of the certified agreement then at least in relation to assurances which went to the agreement.

PN26

THE COMMISSIONER: And you say the Commission should do what?

PN27

MR BUKARICA: I am saying the Commission at this stage should seek to conciliate the dispute. In view of the inadequate representation of the employer at this stage I think that the appropriate course - not in the sense, nothing personal there, Commissioner.

PN28

THE COMMISSIONER: You did break through his sang-froid there for a moment.

PN29

MR BUKARICA: I beg your pardon. It is early in the morning and perhaps I need another cup of coffee Commissioner, but I was referring of course to the management side of it. Due to that fact I would suggest to the Commission, that what needs to occur is that there is a further compulsory conference, arising from this hearing where appropriate management representatives and union representatives are called to this Commission, to attempt to negotiate an appropriate settlement to the dispute because the issue of industrial action is certainly a live one.

PN30

THE COMMISSIONER: Are undertakings given by the union that there will be no industrial action while that process is underway?

PN31

MR BUKARICA: I believe there won't be a difficulty with that, but I need - - -

PN32

THE COMMISSIONER: You might like to consult.

PN33

MR BUKARICA: I think the commitment is Mr Commissioner, that at least until the next hearing we can guarantee that.

PN34

THE COMMISSIONER: Well, that is good enough for the moment.

PN35

MR BUKARICA: Unless, there is any questions, Commissioner, that is what I wanted to put on the record at this stage.

PN36

THE COMMISSIONER: I just have a short statement before I hear from you, and that is that I was contacted on my mobile yesterday whilst I was Moss Vale, by Mr Bukarica, advising me of the general outline of this matter, and advising me that industrial action might occur that evening, and that is as far as the discussion of industrial action went. He advised me that he wished to lodge a section 99, late yesterday afternoon and I agreed to give the matter some priority. I then apprised myself via Vice President Lawler's associate, that all parties had been properly informed of the hearing. I apologise for the short notice but I think Blake's, are used to asking for short notice hearings from time to time in emergency situations, and I think the union has the same right.

PN37

MR DEARDEN: Thank you Commissioner. I think that - as you alluded there has been correspondence from Blakes in respect of this matter, the unavailability of management from the quarry. The unavailability arises as a result of the Walters issue, there is some pretty serious meetings taking place because Walters is involved in more than Endeavour colliery in the Illawarra, and given the deadline pending to date, with announcements in respect of Walters, the majority of management are involved in meetings in the Illawarra, with Walters and other parties.

PN38

THE COMMISSIONER: Is that put in the form of a complaint about the hearing being brought on at short notice?

PN39

MR DEARDEN: No, it's not Commissioner, but I have got to say the company wasn't served with the notification of the section 99 notice, nor was it - received anything, from this Commission. That said, we were advised orally through one of the employees last night, following which we were able to make some enquiries and determine this morning's meeting. That said the company instructions to me this morning are that it has given the status quo promised to the employees in respect of this matter, pending obviously conciliation before this Commission.
It seems, given the absence of the appropriate company personnel, that a date needs to be set for that conciliation.

PN40

THE COMMISSIONER: I agree, on the basis of a status quo and an undertaking from the company there is certainly no need for industrial action, or no justification for industrial action by the employees. So you give an undertaking in the same terms as Mr Bukarica?

PN41

MR DEARDEN: My instructions are that the status quo does prevail.

PN42

THE COMMISSIONER: Good, thank you. There doesn't seem much point in batting the issue itself around now. I mean, I won't refuse conciliation if the parties want it, but I think we might be down to setting dates. How urgent is the matter, given that the status quo will remain until further proceedings? We can adjourn for a few minutes while you have your discussion if you wish?

PN43

MR BUKARICA: Perhaps Commissioner if we just go off the record for a few moments.

PN44

THE COMMISSIONER: We will go off the record.

OFF THE RECORD

PN45

THE COMMISSIONER: I have discussed the program of this matter with the parties in private and it has been agreed that this matter will be adjourned until 10 am on Thursday 17 February, 2005, in Sydney, for conference and hearing. This hearing is being set subject to my understanding of undertakings given by the union firstly that there will be no industrial action in relation to this dispute, prior to that hearing, or on that day, and a similar undertaking from the company that they will take no action in relation to the matters in dispute, until after that date at least. I also note that some 20 employees have been offered permanent employment at the new mine and any undertakings given by the company and the union don't relate to the transfer of those 20 persons. Does that cover it?

PN46

MR BUKARICA: Yes Commissioner.

PN47

THE COMMISSIONER: We are adjourned until 17 February.

<ADJOURNED UNTIL THURSDAY, 17 FEBRUARY 2005 [9.34 AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

MFI #1 WEST CLIFF SITE AGREEMENT 15/09/2004 PN19