AM2008/2, Transcript of Proceedings [2008] AIRCTrans 457 (21 August 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18930-1

VICE PRESIDENT LAWLER

AM2008/2

s.576E - Award modernisation
Award Modernisation
(AM2008/2)

SYDNEY VIDEO LINK TO MELBOURNE

10.57AM, FRIDAY, 08 AUGUST 2008

PN1

THE VICE PRESIDENT: I will just read out all the appearances that I have. MR B TERZIC for the AMWU, MS K ROOKE for APESMA, MR A MORRIS for the coal industry employers, MR A KENTISH for the ETU, MS J GRAY for the CFMEU, MR G BARTLETT for the two WA coal mining companies,
MR P GREEN for NECA, MR M MEAD for Australian Industry Group,
MR D BROANDA for the AWUEQ and MR O FAGIR for the TWU. Are there any further appearances or corrections? No. Ms Gray or Mr Morris, I take it that there have been some discussions about the order in which things might be done. I was just wondering whether an invitation should be issued to any parties that have got short submissions only to make and who need to get away, if they would like to identify that circumstance and perhaps they can be dealt with.

PN2

MR B TERZIC: Yes, your Honour, if I might go first. Is it better if I stand or sit from where you are?

PN3

THE VICE PRESIDENT: Please remain seated. That's fine.

PN4

MR TERZIC: Your Honour, our written submission pretty much covers what we have to say insofar as what our major concern is in this proposed industry award and it goes to coverage and in particular I point out to your Honour that the way that the coverage clause has been drafted, there is no effective reference to the industry of the employer. It seems to be drafted in a circuitous manner whereby the industry of the employee or the work of the employee stands out as the defining point of limitation of where this award goes to.

PN5

And we submit that that goes contrary to the established principles by which this industry has been circumscribed, in particular and the references to these cases are in the written submission, the Thiess Bros case, the Poon Bros case and other decisions of the Commission and generally it has always been the case that the industry of the employer has been a reckoning for defining an industry's boundaries and we say that should be continued in setting the scope for this proposed award.

PN6

In the submission there is also an analysis of the relevant section in the Act, section 576B(2) and some resort to extrinsic materials, the explanatory memorandum which shows that there is a good case to have the industry of the employer and the kinds of work of the employee used to define the boundaries of awards. Just briefly, I think your Honour can anticipate hearing submissions directed at the same objective from Mr Green and from Mr Mead.

PN7

I note that the AIG has used a different way of protecting the interests of contractors, mechanical contractors and I should maybe just go back a moment. They key points of concern are electrical and mechanical and engineering contractors who supply those services to this industry. We all say that they should be covered by the relevant occupational award. That would be the Metals and Manufacturing Award for mechanical and engineering contractors.

PN8

AIGs approach is simply to say that that award, the manufacturing award, maintains its existing scope and in that respect they're really using the precedent that was set out in the tobacco workers case. That was a decision of the Full Court of the Federal Court and if your Honour is not familiar with the reference for that, I can give it. It is (1988) 29 IR page 263, so in effect there might be different approaches to how contractors will be excluded, mechanical and electrical contractors excluded from the coal mining award.

PN9

There could well be different approaches, but we all want the same objective. I commend to the Commission, the AMWU commends to the Commission a means by which the industry of the employer is set out as a defining feature. As I said, that has customarily been the way it's been done and that has been the subject of litigation in the High Court, the Thiess case, the Poon Bros case. Apart from that, two other minor issues. In the written submissions, the AMWU said that it would provide a schedule to deal with some conditions that arise - - -

PN10

THE VICE PRESIDENT: Mr Terzic, why should historical decisions of courts and the Commission drive the definition of the industry given the statutory schema which leaves it to the Commission to identify industry boundaries? Why should the historical line drawings necessarily determine the outcome?

PN11

MR TERZIC: In our submission, your Honour, the two intersect neatly the relevant section in the Act, 576B and also if the Commission was to start throwing open hotly contested boundaries like this one is, it then opens up the job for more contest and the potential confusion, industrial disputation and there are other sound practical reasons that I can allude to. Mr Green will make a strong submissions in that regard, but, for example, mechanical and engineering contractors who ordinarily work in that area under that award, if they found themselves under the coal mining award, once they set foot within a mine's boundary they would have to jump from award to award and if that system was repeated over and over again, mechanical and engineering contractors would find themselves without a true home.

PN12

They would go from industry award to industry award to industry award. Now, that would present problems in setting their rates of pay. Now, I am not going to be so disingenuous as to say that many of these employees would be on award rates of pay, but many agreements under which they work are struck with the metal award as the core and the foundation and the basis. It sets their classification structure and it sets many other conditions like shift loadings, overtime, structure of penalty provisions, et cetera, and if they had to keep bouncing around from award to award, the system would become unmanageable. The historic system has worked, is well understood, is known and it can be used, it's something that is best not disturbed. That is some practical considerations, your Honour.

PN13

THE VICE PRESIDENT: Yes.

PN14

MR TERZIC: So that submission will be amplified by my Melbourne colleagues here, but just some minor housekeeping. I've arranged with one of the registry officials to have emailed to your Honour's chambers a schedule which deals with some provisions that should pick up the peculiar Western Australian conditions. I don't have means of transmitting that to the persons in the Sydney court room, but that should be available on the web site shortly, I believe, and apart from that a very brief submission on where the conditions should stand on an overall level.

PN15

We say that the way in which the phrase safety net is encapsulated in the current part 10A bears a remarkable resemblance to the old part 6 of the pre-WorkChoices Act and the safety net then should stand as the safety net under part 10A. That concluded the submission of the AMWU unless your Honour has any further questions.

PN16

THE VICE PRESIDENT: Thank you, Mr Terzic. If you wish to leave the court, feel free.

PN17

MR TERZIC: Thank you, your Honour.

PN18

MR P GREEN: Your Honour, if I might go next as I have a pressing appointment. I appear for NECA. My submissions are quite similar to those of Mr Terzic and I will certainly be very brief. NECA as I think you're aware, your Honour, represents electrical and communications contractors, some of whom perform maintenance work at coal mines while at the same time performing similar work across a number of industries and our concerns and they're not peculiar to today because I've been making similar submissions across the range of these consultations during the course of this week go to the scope or coverage of the proposed award which as presently drafted would appear to encompass the work of electrical contractors and their employees while working in the coal mining industry. The coverage clause at 3.1.2.2 - - -

PN19

THE VICE PRESIDENT: Is this the CFMEU version?

PN20

MR GREEN: Yes, I think 3.1.2.2 is the same in both versions. I stand to be corrected there. This is the subclause that defines coal mining employees to include employees who are employed in the black coal mining industry whose duties are carried out at or about a place where black coal is mined and are directly connected with the day to day operation of a black coal mine and who are employed in the classification or class of work in schedule A or B of this award.

PN21

Now, that it would appear on the face of it could well cover the work of electricians who are engaged by electrical contractors whilst they are working on or about a coal mine and I think our submissions here are similar to Mr Terzic's in that it seems to be this definition is based on the work performed by the employees, not the industry of the employer and we could see a situation where an electrical contractor, a large electrical contractor providing electrical services to a range of industries might send some employees to do some maintenance work at a coal mine and all of a sudden it would appear they slip into another award.

PN22

THE VICE PRESIDENT: Well, that rather depends, doesn't it, on the terms of the hypothesised electrical contracting award, because that award, the legislative scheme requires clear rules to be set for determining the coverage of modern awards.

PN23

MR GREEN: It does, your Honour.

PN24

THE VICE PRESIDENT: Where there is potential for conflict, then one of the ways in which this issue could be addressed, isn't it, both so far as the AMWU covered employees are concerned and the employees who are your members is for the relevant awards, the metals award and the hypothesised electrical contracting industry award to provide those awards take precedence over any other award?

PN25

MR GREEN: That would certainly be an outcome that we're hoping to achieve, but we can't presuppose that. We're dealing with priority awards and I guess the same issue has arisen in a number of the consultations. We certainly hope there will be an award for the electrical contracting industry, but we can't make that presumption at this stage and I guess for that reason and I know that's not the purpose of today's consultations, but I would urge you as a member of the Full Bench and, indeed, the Full Bench itself to ensure that these issues of contracting of maintenance services and what have you are dealt with in the second round of the priority awards. We certainly believe that the electrical contracting industry should be dealt with so that we can see some certainty, if you like, that we could start to get a sense of where things are going.

PN26

THE VICE PRESIDENT: Wouldn't it make sense, though, to deal with that in the third round, after the shape of key awards in the first round is known, at least the provisional shape?

PN27

MR GREEN: That is a way forward. I guess our concern is that in the second round it's been foreshadowed that building and construction should be part of the second round. Now, whilst there has been no decision there, that has certainly been foreshadowed. This issue will certainly come to the fore in the building and construction, if the building and construction is within the second round because electrical contracting again intersects significantly with building and construction. Hopefully that makes sense to your Honour.

PN28

THE VICE PRESIDENT: Yes.

PN29

MR GREEN: Just going back to my submission, I think reference was made by Mr Terzic, in fact reference has been made by a number of parties to the Thiess case and we would certainly support those submissions. I guess at the end of the day and I acknowledge what your Honour has said about these issues perhaps being left to the third round, we do seek an exemption, a specific exclusion for the electrical contracting industry, albeit I acknowledge that perhaps until we progress further down the modernisation path, that is unlikely to be granted. Unless your Honour has any further questions, in essence they are my submissions.

PN30

THE VICE PRESIDENT: Thank you, Mr Green.

PN31

MR GREEN: If I might be excused.

PN32

THE VICE PRESIDENT: Yes. Please feel free to go at any time.

PN33

MR GREEN: Thank you.

PN34

MR M MEAD: With your Honour's indulgence, I would like to make some very brief submissions while also going to the question of scope at this time.

PN35

THE VICE PRESIDENT: It's Mr Mead, is it? My distance vision is not good.

PN36

MR MEAD: Yes, it is, your Honour. Your Honour, my submissions will be very brief on this issue. I think the submissions of Mr Terzic and Mr Green are endorsed by AI Group and in this regard we all have a commonality of interest, it would seem, in relation to this issue and the scope of this proposed instrument. Your Honour, our submissions at paragraph or section 5.1 really do detail the matters that give rise to AI Group's concern.

PN37

Mr Green identified that in relation to electrical contracting, his membership work across a range of industries and in respect of AI Group's membership and specifically those employers, member companies who are bound to the Metal, Engineering and Associated Industries Award, there is a large proportion of our members that have a similar mechanical and engineering contracting function to various industries including the coal mining industry and that does not necessarily mean that they exclusively work within that industry.

PN38

We would have some concerns in relation to the proposal as drafted in that it could potentially create a situation where they could be applying a number of different awards from time to time depending on industry and who they were contracting their services to and we would see that that would be a proposition that is somewhat at odds with the terms of the modernisation request and the objects of part 10A.

PN39

Your Honour, I just want to clarify one or two matters in the submission and then if your Honour didn't have any further questions, seek to conclude my submission on that basis. The matters for clarification and as I said, the arguments in support of our position are detailed in our submission, but just for clarity, at paragraph 183 of our submission, your Honour, there is a reference in relation to career path and concerns in relation to how a modern award of this nature might affect career path and skill development and we make reference to our broader submissions in section 5.5 dealing with the metal industry award.

PN40

Just for your Honour's reference, the specific section or paragraph in section 5.5 we are seeking to make reference to it paragraph 212 where we detail arguments in relation to skills base, career path in the metals award and its importance, its ongoing importance. The only other point of clarification, your Honour, is that the subsequent paragraph, paragraph 184, as Mr Terzic has alluded to, we seek to draft an exclusion by virtue of reference to the scope of the modern Metal, Engineering and Associated Industries Award or whatever instrument supersedes the current Metal, Engineering and Associated Industries Award.

PN41

Your Honour may have noted in the context of our submissions on that instrument, the title that is being utilised is the Manufacturing and Associated Industries Employees Award. The way in which the exemption has been drafted, there is a typographical error insofar as it's inserted the word engineering in that second line. That shouldn't actually be there and instead, as I said, the Manufacturing and Associated Industries Employees Award would be the correct cross reference if in fact the modern instrument retains that name. Your Honour, those are my submissions, unless the bench had any questions.

PN42

THE VICE PRESIDENT: Thank you, Mr Mead.

PN43

MR D BROANDA: I appear on behalf of the Australian Workers' Union of Employees Queensland. Your Honour, I had indicated before you came in that I wasn't intending taking part, but with your Honour's indulgence if I could just have a minute or two if I may. Your Honour, the AWUEQs interest in relation to the coal mining industry is largely, if not exclusively, confined to the issue of coal samplers.

PN44

Now, your Honour, we put in a brief submission, written submission to that effect. In short, the position of the AWUEQ is one of wanting to see coal samplers accommodated in some respects. Now, we're not particularly fixed to the concept of coal samplers needing to be part of the coal mining industry or, indeed, any other industry. Our position is, though, that we would struggle to find an alternate home for them if they were not part of the coal mining industry.

PN45

Having said that, as I say we are entirely open to being persuaded about why they should or should not be part of coal mining or, indeed, any other industry award, but we just raise the issue for the Commission's consideration and, indeed, for the other parties' consideration that there is this occupation called coal sampling. In short, your Honour, the coal samplers that we represent in Queensland, they are employed almost exclusively at the ports and they're engaged by the purchaser of the coal which is mined and their purpose is to scientifically test that coal for its - to grade it, if you like, to ensure that what the purchaser has contracted for is receiving the quality coal, the type of coal, et cetera, that they entered into a contract for.

PN46

Not being aware of what industry awards may arise during round two or subsequent rounds to what might occur, we just raise it at this early stage so that all the parties keep in the back of their mind that there is this occupation of coal samplers that will need to be accommodated somewhere.

PN47

THE VICE PRESIDENT: Mr Broanda, can I just test this proposition with you? If one can hypothesise coal samplers being employed directly by coal mining companies, there may only be a small number, but one could hypothesise that occurring and then coal samplers being engaged by employers at the ports, does the AMWU have any objection to the notion of a coal sampler classification in the coal mining industry modern award and then coal sampler classifications in a ports modern award?

PN48

MR BROANDA: Your Honour, I note you mention the AMWU, no doubt a slip.

PN49

THE VICE PRESIDENT: I am sorry, the AWUEQ, yes.

PN50

MR BROANDA: Your Honour, in relation to the first issue being a classification appearing within the coal mining industry award, we would support the notion. However, if other parties had a strong view or a strong argument against that occurring, then we remain open to be persuaded that that shouldn't occur. We don't really have a fixed position in relation to that. As I say, though, it would be difficult to somehow - in my view it would be difficult to separate coal samplers directly employed by a coal mining company at a coal mine from a coal mining industry award.

PN51

The situation is somewhat different, though, where coal samplers are engaged by an employer not involved in coal mining at the ports. I don't think, your Honour, it would be appropriate to be part of a ports award because it's incidental that they are employed geographically at a port. They could be employed anywhere else. The incidence of their employment being at a port is inconsequential. They're not employed by ports corporations as such. They're not employed by operators at port. Indeed, for the most part within Queensland at least, I am not sure of the situation at Newcastle, but within Queensland the coal sampling business is actually conducted away from the port.

PN52

And what occurs is the coal samplers will drive to the coal dumping facility when the trains come in, take their samples literally in the back of a ute, they have a 44 gallon drum in the back of the ute that they will fill up with various samples, put it in the back of the ute and drive back to base, as it were, to conduct the testing upon that, so in relation to the second aspect of what your Honour said about whether they should be part of a ports corporation award, I would suggest that that's probably not appropriate. However, as with the appearance of the classification within the coal mining award, we remain to be persuaded one way or the other in relation to it. I should say, your Honour, as I understand the situation - - -

PN53

THE VICE PRESIDENT: If there would be as APESMA seeks an occupational award for professionals of the various classes that APESMA is interested in, that could extend to people who engage in that sort of technical testing and engineering work. If such an award did, would you have any difficulties with the inclusion of coal samplers in that sort of occupational award that related to professionals?

PN54

MR BROANDA: If it was determined that coal samplers were not part of the coal mining industry, we would see the APESMA situation to be the most likely next option for them. Having not seen any detail or anything in relation to the APESMA situation, we would suggest that that is probably the next best fit.

PN55

MS J GRAY: Your Honour, might I just say something at this stage about the AWU submission and the questions from yourself, your Honour? There has been a bit of a flurry amongst the employer representatives I have noticed, too, because we know something that it appears that your Honour may not which is that - - -

PN56

THE VICE PRESIDENT: I would say that is a very large circle on a Ven diagram.

PN57

MS GRAY: There are in effect three types of coal samplers that I am aware of. There are ones who are directly employed by coal companies and most of the coal companies used to have their own on site lab, particularly in Queensland, they were direct employees of the coal company. They were involved in production sampling, so they would test coal at different areas to see what was to be mined.

PN58

THE VICE PRESIDENT: And on any view, they are part of the coal industry modern award.

PN59

MS GRAY: Yes. They've been covered by classifications of ..... since about 1960 and I have a copy I have extracted of those definitions and those classifications for your Honour. There is also sampling done essentially by an automatic process in the wash plants which tests for whether or not that process is getting the results intended, then there is the contracting out of some of that work to off site laboratories run by companies like ACRL and CCI and so on and as I understand it, some of the agreements that the AWU has in Queensland might cover those off site labs.

PN60

Now, I know that the staff associations tried to chase that work at some stage and I think sort of gave up the fight, so that's really the coal mining industry sampling, then there is the superintending sampling done in connection with the ports for the customers and that's the work that is covered by one of the awards which has currently been placed in the metal industry panel, being the coal sampling superintending award which is AM120142.

PN61

We in our initial submissions on priority industries when we were seeking to have a coal industry, rather, coal mining industry dealt with as a priority industry asked for that award to be placed in with ours because it was in connection with the ports, so with those distinctions, what we would be saying is that coal samplers, chemists, senior chemists and so on have since at least the 60s been specifically by the coal mining industry awards.

PN62

Where that work is now done off site by contractors, it's covered by possibly - the metal workers say it's covered by the planning, drafting and technical employees part of the Metal Industry Award and the AWU would say, well, it's got some enterprise awards which cover it, possibly the port workers, possibly the off site so what we would be saying about coal sampling other than those who are legitimately in the coal mining industry should remain covered by the modern coal mining industry award is that should at a second or third stage we be able to have a coal industry award which included the coal ports, that the coal samplers of which Mr Broanda is speaking, the superintending coal samplers, would logically fit in a coal ports area, but that's the submissions that we would make and I can hand up a copy of those extracted - - -

PN63

THE VICE PRESIDENT: I think I understand that you put - please, by all means, but you've put it with some clarity, Ms Gray, and I understand exactly what you're saying and I understand the sense of it. Mr Broanda, is there anything else you wanted to say on the topic?

PN64

MR BROANDA: Your Honour, not on that topic, but just in terms of the coal mining industry and the exclusions that have been discussed from my colleagues that have now left the room, I just say this to perhaps throw the cat amongst the pigeons as it were, but to draw an analogy with the metalliferous mining in terms of the contractor issue, I am not sure of the position of the CFMEU, but the submission is that these contractors will come in and out and there would be complications caused as a result of looking at where the employee might be employed on a particular occasion.

PN65

If the coal mining industry, your Honour, if anything like metalliferous mining, if you take for example Mount Isa Mines, there are contractors on site at Mount Isa Mines that are there permanently. They are there, they are a fixed feature of the Mount Isa Mines operations. They work hand in hand with Mount Isa Mines to the point that employees regularly change between being employed by Xtrata that operates Mount Isa Mines or going to work for a contractor that's also on the mine, the employees themselves continue to do the same job, but they jump between employers depending on who happens to have the better enterprise agreement at a particular point in time.

PN66

And, indeed, where employees might lose their employment with either Mount Isa Mines or a particular contractor, you'll often find them coming to work the next day wearing someone else's jacket, so I don't say that to express a view about whether they should be excised or not, but rather just to relay a feature that occurs in metalliferous mining that may also occur in the coal mining area, that these contractors are not someone that comes in because a piece of plant has broken down. The contractors are a permanent feature of the mine site.

PN67

Your Honour, I can't assist you in relation to the coal mining industry any further. As your Honour would appreciate, it's not an area that the AWU has a significant interest in by any means, save for that interest with coal samplers which is something that obviously needs to be canvassed further as a result of what might occur during round two, three, four, however many rounds there might be. We simply raise it at this point so that the parties are aware there is this thing called a coal sampler and they need to be accommodated at some stage.

PN68

THE VICE PRESIDENT: Thank you, Mr Broanda. I think that finished Melbourne.

PN69

MR O FAGIR: Your Honour, I appear for the TWU. I am not sure if I fall into the first category of persons.

PN70

THE VICE PRESIDENT: Mr Fagir, if you want to make the submission so you can go, please feel free to do it. If you want to make a short one now, that's fine and stay, that's fine as well.

PN71

MR FAGIR: I might do that. Thank you, your Honour. I hope your Honour has our submission presented to the Full Bench on Friday, the 1st.

PN72

THE VICE PRESIDENT: Yes.

PN73

MR FAGIR: Your Honour, in that submission we say that on our reading of the CFMEU scope clause, proposed scope clause, road transportation functions don't fall within the scope of the coal mining award and we said that because even though the description of the industry might include those functions, that definition of the industry was by reference to classifications appearing in the coal mining award.

PN74

However, having seen the way that classifications have been drafted certainly in the metalliferous mining award and that is in quite an expansive and generic way, the position is probably less clear than we thought it was, so that being the case, we would just like to say something short about our view of the place of road transport in the coal mining award. We say it should be out and I note that the employers' draft provides a specific exclusion for haulage of coal off a mine lease and as a general proposition, we agree with that exclusion.

PN75

There might be some submission as to the precise form of the words, but as a general principle, we agree and we note that our friends, the CFMEU, in their scope clause haven't provided that exclusion and if I understand their submission correctly, that's because they say sometimes haulage of a mine lease or road transport does fall within the scope of the coal mining industry and in that respect and Ms Gray has helpfully provided us with a decision of the Coal Industry Tribunal, a 1978 decision I think it was, which found that certain haulage was within the coal mining industry.

PN76

However, on our reading of that decision, that is a very narrow set of circumstances which today might not exist, might be a purely hypothetical situation where the coal was transported from the mine to I think it was washing plants, vehicles weren't fully road registered, they were either unregistered or had limited registration and I won't bore your Honour with the details, but they were a narrow set of circumstances.

PN77

We say to have a prima facie inclusion of road transport, because there is that quite narrow possibility that some road haulage functions would fall within the industry, it's really a case of the tail wagging the dog. I think the CFMEUs suggestion was that we don't exclude road transport and then each case of coal being hauled off the mine lease will be treated on its merits and at that time it will be determined whether it falls within this award or another one and we say that is simply ..... to this process and defeats the purpose, what we say is the purpose of this award modernisation exercise.

PN78

THE VICE PRESIDENT: Can I just make this observation? Obviously I sit here as a member of the Full Bench and can't speak for the Full Bench and to the extent that I have any views at all, I can assure you that they're all provisional, but the parties must understand or ought understand that the post drafting consultation is a real consultation. In a practical sense, everything is up for grabs and the difficulties that are faced by the members of the bench in terms of drafting are not inconsiderable and the interaction between particular modern awards is going to be an ongoing issue.

PN79

And you ought be satisfied that you are going to have a full opportunity to make submissions that will have a real prospect of impact in the post drafting period because the first cut of the drafting of scope clauses in draft modern awards is very unlikely to be the last cut because obviously there are individual members of the bench who are drafting particular modern awards. The bench will obviously sit together and consider each of them, but the full subtleties of the interaction between particular modern awards is something that is going to be no doubt an ongoing topic so that you shouldn't be operating under any illusion that somehow or other I am going to make some - that I personally will make some determination that will, as it were, become set in concrete because I am not.

PN80

MR FAGIR: Yes, your Honour, we understand that and I think we expect that not only will these things not be settled until after the first draft, but they might not be settled until the transport award and other awards are - - -

PN81

THE VICE PRESIDENT: And they may not be finally settled until there have been amendments to awards that have already been made prior to the commencement of the new system because precise - the refinement of problems and the resolution of problems may happen at a quite late stage. It may be that when awards that are happening in stage 3 or stage 4 are being finalised that it becomes apparent that there are difficulties of interaction with awards that have already been made and there may need to be amendment of awards that have already been made.

PN82

MR FAGIR: Yes, your Honour. We're not going to die in a ditch over this issue yet.

PN83

THE VICE PRESIDENT: But does the TWU have any difficulty with the proposition that where, for example, to use the example you referred to, coal was being hauled between a mine and a wash plant as an integral part of the overall operation by a coal mining company that it would be inappropriate to have that work covered by a coal industry modern award.

PN84

MR FAGIR: Your Honour, I don't think I can answer that question just yet. I have to say having spoken to people in the organisation who are familiar with the coal mining industry, their understanding was that any driving off the lease in a road registered vehicle fell within a transport area, not within a coal mining area and that suggests that that's not quite as clear cut as that, so maybe I can't answer that just yet. We will certainly hopefully discuss the issue.

PN85

THE VICE PRESIDENT: You've flagged it and when parties flag particular issues as something they want us to have a focus on, we're making a list of those issues and they will get specific focus and it's on my list.

PN86

MR FAGIR: Thank you, your Honour. If I could just very briefly suggest what we say the solution might be. It might be to identify these in each circumstance, have a specific inclusion in relation to haulage for calls within that circle on the Ven diagram and otherwise exclude road haulage or road transportation functions, but obviously that is something that can be dealt with down the track.

PN87

THE VICE PRESIDENT: Thank you, Mr Fagir. Yes, Mr Morris.

PN88

MR MORRIS: Thank you, your Honour. I have got Mr Aiken at the bench with me and the trains trust of Mr Gillespie and Mr Wales, so if I get stuck, I will get prompted. Your Honour, we have - - -

PN89

THE VICE PRESIDENT: Perhaps I will make my own observation. It may cause you to focus submissions in particular ways. The bench has made no decisions I think about anything I think it's a fair description other than those matters that are expressly decided in the decision of 20 June and that decision is full of things that have been decided on a provisional basis, not on a final basis. It is entirely possible that the bench will be seeking to develop standard clauses for a range of topics that appear in each of the modern awards and that if that occurs and if then it is appropriate to be trying to place those standard clauses into the coal mining industry modern award, that there will be a need to re-craft clauses that have been agreed between the parties, not to change the effect of the clause, but rather to put it into a standard format.

PN90

And obviously the parties would have an opportunity, to the extent that that occurs, if it occurs, they will have an opportunity in the post drafting consultation period to identify ways in which such a redrafting by the Commission may have changed the import or effect of what was intended and agreed between the parties and certainly for my part it seems to me that unless there is some statutory requirement that forces a contrary conclusion where parties are - where the key parties can agree upon a particular matter, that's a pretty sound basis for the Commission embracing it.

PN91

When it comes to coverage, one can think conceptually of the notion of coverage by reference to the industry of the employer, coverage exclusively by reference to the work being performed by employees, that is a pure occupational award and a third category which is a hybrid which has both elements of the industry of the employer and occupational elements. I think the metals industry award represents an example of that hybrid category, if I could put it that way, in the sense that parts of the metals award apply by reference to the industry of the employer and parts of them by reference to work being performed by employees.

PN92

And I suppose there is another category as well which may describe the way in which the Commission could go in respect to this industry which is to define scope by reference to the industry of the employer in respect of employees employed in classifications covered by the award. Of course, under that scenario it would be important to have a catch all classification or catch all classifications in some circumstances. Obviously the issue of coverage and scope is contentious. It's contentious as between unions and there are differences between the principal union, the CFMEU and the employers in relation to it, but at the end of the day the bench needs to be concerned or the Commission needs to be concerned not just with defining coverage appropriately in isolation.

PN93

We've got to look and see how the whole of as it were the fabric of the modern awards fit together and make sure there aren't holes at the end of the day, inappropriate holes at the end of the day and it may well means that this is very much the preliminary argument that we're having about the scope and coverage and that what is produced in the draft will be truly provisional in the sense that there will be a need to come back and revisit it substantially in those drafting consultations. Having said that, go ahead, Mr Morris. I make those remarks because it's clear that scope and coverage are the ..... issues.

PN94

MR FAGIR: Your Honour, just very quickly, your Honour, I would seek leave to excuse myself from further involvement and I would just make your Honour and the parties aware that I am the last person standing here in Melbourne, so just so that you're aware there will be no-one else here in the room save for the court reporter, of course, is here.

PN95

THE VICE PRESIDENT: Thank you. Yes, Mr Morris.

PN96

MR MORRIS: Your Honour, if I can lead off for the key parties as your Honour has described, we tender a document. It was one of the attachments to the CFMEUs submission, but we have amended it slightly. It's the comparison document that shows the union draft and the employer draft side by side.

PN97

THE VICE PRESIDENT: Wonderful. Thank you.

PN98

MS GRAY: Theirs isn't colour coded, may I say, though, your Honour, so I can't see where we're supposed to be directed, but I am sure - - -

PN99

MR MORRIS: We can provide it in soft version and it will be colour coded.

PN100

THE VICE PRESIDENT: Thank you.

PN101

MR MORRIS: In a brief discussion with Ms Gray this morning, we thought what would be a practical way to advance - - -

PN102

THE VICE PRESIDENT: By the way, I should have thanked the parties for the remarkable amount of work that they have done and the commendable precision and the extent to which you have simplified a really terribly complicated task. That's very much appreciated. Yes, Mr Morris.

PN103

MR MORRIS: I want to whip through this in a moment and I think we will expect to be able to make our submissions quite succinctly about where there are points of difference, but just some preliminary points. We've deliberately aimed to reach as substantial a level of agreement as we could and that came through a number of meetings so the issues of where we're apart are the product of quite a bit of effort.

PN104

The document that I have just given you highlights the differences between the CFMEU and employer group submissions. We've tried to add embellishment in relation to the other unions, but I think that will become pretty clear as we go through. There are differences between us of various kinds. I think it's worth just spending a moment on that before we start because distinguishing between the differences, the types of differences, we hope will assist your Honour's processes and the Full Bench's processes.

PN105

THE VICE PRESIDENT: Yes.

PN106

MR MORRIS: There is a group of differences which are essentially concerned with style or form where what your Honour said a moment ago about the potential for general or standard terms may well answer the issue. In other words, we're not apart on substance. It's more we think that this is what should be in there, but ultimately these are sort of drafting style type issues, the first category and we can advert to those as we go through.

PN107

The second category is comprised of those differences where the employer group had a view that the objectives of the modern award as set out in part 10A and also in the Minister's request require an approach to drafting particularly where you are starting with a number of awards that might have exactly the same condition in terms of subject matter, but the detail of the existing provisions differs. Do you take the production engineering award example or do you take the staff award example or do you in fact have to sort of disaggregate them somewhat and just adopt a more generic type of provision?

PN108

An example would be annualised wages, providing for annualised wages or the cashing out of annual leave or personal leave where the employer's starting point is these are provisions that ought to be in a modern award and that is the point of difference between us, so I would call those more matters of principle concerned with how a modern award should deal with particular types of provisions. The third category is what I've called transition issues where one can go from one extreme saying, well, in the current awards and NAPSAs where it's different from the new model or modern award, you sort of preserve that for a period and then let it get absorbed into the modern award at some later time or where there are remuneration differences or classification differences, so matters where do you try and achieve a standard, absolute universal application of a provision or do you preserve some survival of some condition or classification or whatever that may be state based or may be award based?

PN109

THE VICE PRESIDENT: For a period of five years or of up to five years.

PN110

MR MORRIS: Or some other period. I can give you two examples. One is the provision for casual employment. Now, this may fall into category two as well, but casuals are provided for in the staff award at the moment, but not in the production engineering award. The employers would say casual employment should be permitted under the award and it shouldn't be limited to particular classifications.

PN111

Another example of transition is where there are state based classifications or allowances or rates of pay that are different, how do you deal with those? Another one is one that we will come onto which is the 35-hour week transition in the staff award, so there are some issues around transition. The fourth category is scope and there is a sort of fifth category of things that don't necessarily fit into any of those categories, but we don't want to lose sight of, so you can see how from our point of view, the amount that we want to say about some of these things will differ depending on the kind of issue it is or kind of difference it is, what category it fits into.

PN112

Some of that will be timing issues, for example the scope clause issue that your Honour has made some comments about already this morning. We will want to say some things now, but there may be things we will necessarily have to deal with again when the other bits of the Commission's priority awards and the second and third and so on waves are worked through, so if I could just work through that document. Would it be convenient to mark it?

PN113

THE VICE PRESIDENT: Yes. I don't know that the members of the bench have got some agreed position on how things are being marked, but why don't I mark this as CMI1. In any event, the document will find its way onto the web site.

EXHIBIT #CMI1 POSITION COMPARISON DOCUMENT

PN114

MR MORRIS: Thank you.

PN115

THE VICE PRESIDENT: And the other document that was handed up by Ms Gray, I should mark that as CMI2 which is the set of definitions relevant to coal samplers.

EXHIBIT #CMI2 SET OF DEFINITIONS RELEVANT TO COAL SAMPLERS

PN116

MR MORRIS: So perhaps if I can start at the beginning.

PN117

THE VICE PRESIDENT: I should say CMI1 is the document that compares the positions of the CFMEU and the coal mining employers in relation to their respective proposed draft awards.

PN118

MR MORRIS: I think in some instances it picks up issues that are peculiar to one or the other unions.

PN119

THE VICE PRESIDENT: Yes.

PN120

MR MORRIS: The first point of shading is on clause 2. I won't deal with that because it's the annualised wage arrangements. We will come to just the list of contents, but it's worth after the list of contents, you get onto schedules. Just flagging at this point that the union draft has schedules A to I. The employer draft has three schedules, one for staff, that's classifications, wage rates, allowances, one for production and engineering. I should have put those around the other way, again, classifications, rates of pay, allowances and the third, schedule C for mines rescue, again classifications, rates of pay and schedules.

PN121

We haven't attached all the schedules to CMI1. I think that's getting down to a level of detail that won't be helpful at this stage. The object is that anyone looking at this award will be able to look at schedule A, B or C and find the classifications, rates of pay and allowances all conveniently collected there. Clause 3 is the next one and whilst we haven't shaded clause 3.1 and point 2 because the employers and the unions are in agreement about that clause or subclause, in the light of what has been said this morning, I think there's a couple of things we need to say about 3.1 and point 2.

PN122

We have sought to craft a coverage clause that pays heed to the cases and pays heed to the coverage of the current awards, but adopts a practical definition that we think is apt for the industry as it now exists and the kinds of employers and employees one finds in it. We've also had regard to the definition of eligible employee in the Coal Mining Industry Long Service Leave Funding Act. That is one of the three pieces of cognate legislation that establishes the long service leave - the portable coal mining industry long service leave funding scheme and it hinges entitlement to long service leave by reason of employee service in the coal mining industry by defining an eligibility, so we accept with respect what was said by Mr Terzic and what has been said by the ETU in its submission and by NECA I think that we have departed in a very measured respect from the way the cases have defined or appear to have defined the coal mining industry by requiring both the employer and the employee to be employed in the coal mining industry, but it's a very measured approach.

PN123

THE VICE PRESIDENT: Can I ask a couple of questions? Firstly, the reference to black coal mining is I take it a deliberate choice which has the effect of excluding the Victorian brown coal mining that is an integral part of the power stations down there.

PN124

MR MORRIS: That's correct, yes, and there's some in South Australia as well.

PN125

THE VICE PRESIDENT: Yes, it being the shared view of the CFMEU and the coal mining employers that that mining work should be covered by some other award, presumably a power industry award.

PN126

MR MORRIS: The power industry would appear to be a logical place. There may be other arguments about it fitting somewhere else, but certainly we would not see it as being part of the coal mining industry, the black coal mining industry covered by this modern award.

PN127

THE VICE PRESIDENT: But do you see that there has been a shift from the coal mining industry to black coal mining industry which has occurred between the parties, not as part of some determination by the Full Bench, but I just want to make it clear that there is certainly agreement amongst the - I will call them the principal parties, the CFMEU obviously being the unions has got the greatest degree of interest in coal mining and the coal mining employers, so the coal mining industry modern award should not be applying to coal mining that occurs in Victoria and South Australia as an adjunct to the production of power?

PN128

MR MORRIS: That's correct.

PN129

THE VICE PRESIDENT: Okay. Secondly, do you accept that the effect of the clauses drafted is to render this in terms of that dichotomy that I was talking about before as an occupational award, that it focuses on the occupation of the employee, what it is that the employee is doing rather than the industry of the employer?

PN130

MR MORRIS: Not entirely.

PN131

THE VICE PRESIDENT: Well, I mean, it confines it, it defines the group of employees who are going to be covered by the award maximally as the black coal mining industry employees, but then it is employees doing particular things within the black coal mining industry.

PN132

MR MORRIS: Yes. If I can explain it this way. If you take the clause 3.1.2.1, you there require an employee employed in the black coal mining industry by an employer engaged in the black coal mining industry, so there both the employee and the employer must be in the black coal mining industry.

PN133

THE VICE PRESIDENT: Yes.

PN134

MR MORRIS: Furthermore, their duties must be directly connected with the day to day operation of a black coal mine. Now, just to pause there, that is a phraseology that appears in the Coal Mining Industry Long Service Leave Funding Act, so directly connected with the day to day operation of a black coal mine and then and who are employed in a classification or class of work in schedule A or B, so employer and employee must be in the coal mining industry doing - - -

PN135

THE VICE PRESIDENT: I suppose it's 3.1.2.2 that is the focus of those remarks that I've been making.

PN136

MR MORRIS: That's correct. Now, there you find that the employee must be employed in the black coal mining industry. Now, we would say that means the black coal mining industry as an employer industry, not necessarily that person's industry, but - - -

PN137

THE VICE PRESIDENT: So you would say the AMWU, NECA, AIG and the ETU are all jumping at shadows?

PN138

MR MORRIS: Not quite. There is an important point of distinction between 3.1.2.1 and 2.2. In 3.1.2.2, it's not necessary that the employer be engaged in the coal mining industry as the cases have ruled you determine that question. However, in distinction or in contrast with the previous subclause, their duties must be carried out at or about a place where black coal is mined and directly connected with the day to day operation of a coal mine and in a classification in the award.

PN139

THE VICE PRESIDENT: Can we reduce this to a concrete example that impacts the AMWU or NECA? Let us assume that we have an electrical contracting business that performs electrical contracting work for a range of clients, some of whom are coal miners so that you have electricians who are being sent to do electrical work on the mine from time to time, maybe they spend two weeks doing work at a coal mine, then their employer sends them to do some work for the Department of Defence or in the construction industry, are those employees caught by 3.1.2.2 at all?

PN140

MR MORRIS: We would say no. We're dealing here with unarguably an area of - some might say an area of grey, but certainly an area of delineation. Let me distinguish between the kind of person your Honour has just described who works for a contractor in a variety of different settings. From the employee who is provided by a labour hire firm who has coal mining industry skills and experience, works alongside can be indefinitely or at least filling vacancies or shortages of labour or so forth - - -

PN141

THE VICE PRESIDENT: The electrician is the classic example. The mine may have a number of directly employed electricians. Those electricians are undoubtedly employed in the coal mining industry, should be bound by a modern award, then you have the electrical contractor who supplies labour to make up the shortage that the coal miner may experience because its direct employees are on leave or whatever.

PN142

MR MORRIS: That's correct. That labour hire situation is one where as I am instructed on the practice that prevails in the industry now, when those people come in and they are provided on hire in that way, whilst their wages and their employer in a legal sense is the labour hire firm, they are embedded in the maintenance workforce or the operating workforce of the mine.

PN143

THE VICE PRESIDENT: Labour hire, one needs to draw a distinction, doesn't one, between the labour hire example where the employer doesn't necessarily have and industry character unless you character labour hire itself as being a separate industry. In a situation where you've got for example an electrical contractor and you can identify the employer as having a particular industry and one can hypothesise electrical contractors who do subcontract work in the building industry and do subcontract work in black coal mining.

PN144

Now, I understand that you're dealing with the labour hire scenario and I can't imagine that there would be anybody - well, maybe there is. Maybe there are people who would argue for the contrary, but I imagine that there would be a consensus that in the labour hire context the coal mining industry award should be applying to employees who are supplied by a labour hire company into a coal mine to do coal mining work, but in relation to the electrical contractor example, the one who subcontracts to the building industry is the same as the coal mining industry?

PN145

MR MORRIS: I think that would come down to, answering the question is that employee employed in the coal mining industry, you say, no, when you look at the employee, he or she is not employed in the coal mining industry, they're employed in the electrical contracting industry. They here, they contract there. You contrast that, however, with the person who has duties that only have them working in a coal mine or in connection with a coal mine.

PN146

There we would say you're in that area where the practice more generally, if not exclusively, is that those people are afforded the benefits of the coal mining industry conditions, rates of pay and so on. We accept that it's a line that comes down to matters of degree, fact. We've sought to draw that line, though, in a way that is we think industrially sound, that's just. There will be issues inevitably at the margins as to whether a particular employee of a particular contractor falls within this scope or not and we're not sure that we can divine some - - -

PN147

THE VICE PRESIDENT: Form of words that are going to provide certainty, yes.

PN148

MR MORRIS: No, beyond what we've done.

PN149

THE VICE PRESIDENT: Ms Gray, if I can just ask you at this point on this topic, do you have anything you would want to add to what Mr Morris has been saying?

PN150

MS GRAY: Your Honour, did you want me to address issues as we go through them or just do a submission by - - -

PN151

THE VICE PRESIDENT: I am in your hands as well, what your preference is, but certainly from my perspective it would be useful to have your input at particular points in relation to some issues and having heard what Mr Morris had to say about that, your - - -

PN152

MS GRAY: I am generally in agreement with what Mr Morris has said on the scope, your Honour, and I think that there was actually a real life example in Emerald of a mechanical contractor set up in the town, doing engineering work generally for farming and mining and so on who also had embedded contracts with various coal mines where they had taken over part of the production process and were doing it forever and a day and also provided labour to fill in, who are integrated into the crews, to fill in for long service leave and things like that, direct employees' absences. We would say that that company, that employer, was in respect to their town operation in the mechanical contracting industry, in respect to performing all maintenance work, production maintenance, not just shutdowns or things of that sort, but production maintenance at Gregory mine forever.

PN153

THE VICE PRESIDENT: Was in the coal mining industry?

PN154

MS GRAY: Was in the coal mining industry and in respect to their employees who were integrated into the crews would be in the coal mining industry, so that is what we see it as, your Honour, but the difficulty in trying to craft something with certainty for a modern award which doesn't transgress into other union organisations' representative rights, but at the same time recognises the practice and we've done our best with the proposal that we've come up with to deal with all of those and Mr Morris has only gone through the first part of it which I realise, you know, there's 3.1.2.2 is really what is causing the metal workers and the CEPU angst in respect to their contracting areas.

PN155

Clearly they would be comfortable with it in respect to their direct employees because this is an industry award, but, of course, their trade unions who are party to that award as well, so in respect to this part, we would say the first part is clearly the employer must be in the industry. Secondly, it would encompass employers who in some part or in one of their businesses is out of the industry and another part of their business is in the industry, but we would only be looking at 3.1.2.2 dealing with that part that was in the industry, but then, of course, there is the labour hire example and that employer is not in the coal mining industry, but they are supplying employees who are integrated into crews as replacements for direct employees of coal mining companies and they should be covered by this award, anyway, and we've actually had arguments where we were seeking to rope in employers and so on who argued that they weren't in the coal mining industry, initially argued, but the labour hire industry.

PN156

THE VICE PRESIDENT: Putting aside the labour hire just for one moment, to take the example that you gave of the Emerald mechanical contractor, they would be covered or caught, would they not, by 3.1.2.1 you would say correctly?

PN157

MS GRAY: Yes.

PN158

THE VICE PRESIDENT: 3.1.2.2 makes it plain, but if your analysis of that example is correct and that Emerald mechanical contractor is in both the mechanical contracting industry and the coal mining industry, then 3.1.2.1 would be adequate in respect of that employer.

PN159

MS GRAY: It would be, your Honour, except for - - -

PN160

THE VICE PRESIDENT: Sufficient, I should say.

PN161

MS GRAY: - - - those employees who were being supplied to be integrated into a crew. Now, if that employer didn't also conduct all of the production, maintenance at Gregory mine, but only did the work in town or farming, a mixed business, a contracting business, but supplied employees to replace direct employees of BHP Billiton at Gregory mine, well, it's arguable that that doesn't make them a coal mining industry employer because it isn't a significant - - -

PN162

THE VICE PRESIDENT: If there were to be adopted in relation to the supply of labour to deal with the labour hire problem and this is just a purely hypothetical, but if there would be some general principle laid down by the bench that said these hirers of labour are in the industry, by definition they're in the industry to which they supply labour, would that together with 3.1.2.1 be sufficient not to have to include 3.1.2.2? Perhaps just take that idea on notice even.

PN163

MS GRAY: Your Honour, I know that we're very keen to retain 3.1.2.2 and deal with grey areas more by specific exclusions than to take that out completely because - - -

PN164

THE VICE PRESIDENT: I just want to be in a position to maximally deal with a situation. I don't know what is going to occur, what hypothetically could occur where a majority of members of the bench are uncomfortable with 3.1.2.2 and if they were uncomfortable with it, what is the most effective way of achieving what I think is common ground about what the application ought to be? In other words, it is not a question of deciding what the application would be agreed about that. It's about getting a form of words that is sufficient to deliver that without creating unintended or unexpected problems.

PN165

MS GRAY: Yes, your Honour, and having had involvement through my union with general mining industry, the way that they appear to be dealing with it there is to have instead of just in the mining industry, in or in connection with the mining industry and then to have an exclusion, for example, for the modern MIA award, except insofar as employees who are engaged in work covered by the award, so there are other ways of dealing with it rather than - the difficulty for us, your Honour, is that - - -

PN166

THE VICE PRESIDENT: Ms Gray, I understand exactly where you're coming from and my concern is that with genuine good faith and a lot of hard work, the parties in coal mining have come up with a solution to keep a couple of the exclusions they see as being appropriate and suitable and that is something that is very commendable, but to the extent that the bench decides that there should be some consistent approach to the drafting of scope clauses and that consistent general approach that is decided upon by the bench is different from the way this is structured, I am endeavouring to explore how such a general approach might be adopted whilst preserving the on the ground outcome that we all seem to agree about.

PN167

MR KENTISH: Your Honour, the CEPU would have some ..... about the general labour supply approach, not in terms of the principle of it, but with the interaction with the electrical contracting that - - -

PN168

THE VICE PRESIDENT: That is a slightly different issue. We're here talking about the approach to drafting a scope clause in respect to which labour hire is an example that one wants to look at to see how it interacts in order to make sure that you've got the correct approach.

PN169

MR KENTISH: Sorry, your Honour, I thought you were suggesting that the bench might make some generalised ......

PN170

THE VICE PRESIDENT: I was hypothesising that as one of the myriad of possibilities that might occur, but we need to think about these possibilities and discuss them in order to get to the best result in relation to clear, concise, simple and effective scope clauses in conjunction with the rules, the clear rules that are supposed to allow people to determine uncertainty when it comes to determining which modern award applies, so, Ms Gray, you don't need to adopt a final position on that and certainly this is going to be an area where you can proceed on the assumption that there is going to be a real and substantive opportunity for post drafting consultation. If the bench ends up producing a scope clause that you think has difficulties with it, you can rest assured that there will be - that it will be a very provisional view that will be very much amenable to changing in the light of persuasive argument.

PN171

MS GRAY: And, your Honour, might I just, before I forget to ask your Honour, yesterday Senior Deputy President Harrison expressed a view that, really, if the parties didn't put what they need to put in terms of the content of a proposed award before the end of the consultation period that the opportunity to have genuine input after that may be limited and I am paraphrasing her Honour and might be doing her discredit, but your comment - - -

PN172

THE VICE PRESIDENT: No, I think we are talking about different things. She is talking about having input into what the draft award is going to look like and I am talking about having input into what the ultimate award as made is going to look like, as made, as varied if necessary is going to look like. In other words, we've got a practical problem of actually drafting awards and then having enough time to sit down and consider them as a bench and then proof read them, we'll have that done by the date in September and if parties are permitted to continue putting in material - - -

PN173

MS GRAY: It will never get done.

PN174

THE VICE PRESIDENT: Exactly. At a certain point we are going to have to stop looking at fresh material and I think the notion is to the extent that parties can come up with agreed clauses, they should feel free to submit them at any time, but after the end of the consultation period, it's going to be difficult for us to be taking account of substantive submissions about particular things.

PN175

MS GRAY: And perhaps I misunderstood her Honour, but I have been asked by my executive to seek clarification from you today on this point, your Honour, and that is that in between 12 September and 10 October, does your Honour see that the parties would have an opportunity in terms of making submissions on the draft, the exposure draft, to having put to the content of that draft in addition to the scope and application?

PN176

THE VICE PRESIDENT: I've got to be careful about not speaking for the bench because that is not a matter that has been discussed in any particular detail, let alone any determinations made, but from where I am coming from, the opportunity for parties to provide information and views in respect of the drafts commences the day that they're released and concludes at the end of the post drafting consultation, so the answer to your question is from my perspective, yes, but that is a matter that I will raise with the bench and it may be that that should be addressed in a statement.

PN177

Certainly, you can reasonably anticipate that there will be some document issued alongside the drafts, not just the drafts on their own, but there will be some sort of explanatory decision or statement. I can't commit the bench to that because again I don't speak for the bench, but it seems practical and likely that we're going to need to make particular comments about why particular clauses have been included or uncertainties we have about the appropriateness of including a particular form of words, but here is a provisional form of words for the parties to start working on, those sorts of remarks.

PN178

Such a document will need to be produced and no doubt it will address what is going to occur with some greater precision in the period following the issue of the ..... drafts, but I think it would be profoundly unlikely that you were going to be confined just to some narrow window of formal consultations which have presently been listed.

PN179

MS GRAY: Thank you, your Honour. I don't perceive that it is going to be anything like the problem, this industry is going to have very little problem, but because the parties have had exchange of drafts over the last month and as - - -

PN180

THE VICE PRESIDENT: I can tell you if all industries were like this one, the whole task would be much more manageable.

PN181

MS GRAY: Having involved in the general mining area, we had some real concerns. Thank you, your Honour.

PN182

THE VICE PRESIDENT: Now, Mr Morris, that was a long diversion. We're dealing still with scope. I don't know whether there is anything you wanted to say further on it in the light of Ms Gray's - - -

PN183

MR MORRIS: I don't think about 3.1.2. We've explained how we've come to the point. If you then go to the next page, 3.2.1 or 3.2, here this is we would say a category 1 type issue. We're looking for guidance from the Commission that the exclusion of enterprise award employees and employers is required by the Act. The higher income employees, again we're not sure how that is going to be dealt with, in the Act or by the bench.

PN184

Employers in respect of employees in the char plants, Mr Bartlett will address you on that. That is a Western Australian issue and then 3.2.4 is I guess the pregnant exclusion, exclusions in favour of other relevant awards and we take on board absolutely the fact that we're just sort of looking at one part of the jigsaw at the moment. Until one sees all the awards, crafting these kinds of exclusions is a work in progress.

PN185

THE VICE PRESIDENT: I don't know that there is that much more to be said about these.

PN186

MR MORRIS: I don't think so. Can I go to 3.3, the shaded bits there, the one that APESMA will have a particular concern about, the work of employees employed in head offices, corporate administration offices of employers engaged in the coal mining industry. As we point out in our submission, 3.3 starts with the observation that the black coal mining industry is that industry as discerned, determined, defined and what we then say is subject to the foregoing, the black coal mining industry includes five types of work and excludes or does not include some others. Those inclusions and exclusions are not seeking to provide an exhaustive definition, so that's why we've introduced them with the words before the first dot points at 3.3, subject to the foregoing, the industry includes.

PN187

THE VICE PRESIDENT: The provisional view expressed by the Full Bench in the 20 June decision was that there should be a private sector clerical occupation, but that consideration should be given to including clerical classifications in industry awards so that the private sector clerical occupational award, the provisional view expressed was, would pick up what is left over in relation to what has not been dealt with in industry awards. I see that there is a measure of agreement between the union and the employer in relation to that first dot point exclusion. If the bench were minded to provide for clerical classifications in this award, to adopt a consistent approach across the whole sweep of modern awards at the end of the day, is that something that you think you can come up with agreed clauses on or is it a case of you wanting to argue that there are good reasons why even if the Commission adopted that sort of approach generally, it shouldn't be applied in relation to the coal mining industry?

PN188

MR MORRIS: I think we start from the fact that one of the awards, the current pre-reform awards that will be subsumed by this award is the staff award which includes clerical classifications, but, of course, the staff award applies to employers and employees in the coal mining industry so what we contemplate is that - - -

PN189

THE VICE PRESIDENT: But employees in head offices and corporate administration offices are going to need to be covered by some award.

PN190

MR MORRIS: Quite, and they would inevitably we would say be covered by - clerical people would be covered by a general clerical industry award, no question.

PN191

THE VICE PRESIDENT: So the question is is there some compelling reason, some good reason why there shouldn't be clerical classifications in a coal mining modern award that covers people doing clerical work in head offices and corporate administration offices?

PN192

MR MORRIS: There is.

PN193

THE VICE PRESIDENT: With the generosity of the non-monetary terms and conditions enjoyed by the workers presently covered by the two industry awards?

PN194

MR MORRIS: We would say where the clerical work, supervisory work and so on, accounting work has been covered by staff awards in the past, it's appropriate for them to be covered by the modern coal mining industry award, but not elsewhere.

PN195

THE VICE PRESIDENT: And the rationale the bench could use for adopting that approach is that the task of trying to minimise detriment to employees and increased costs to employers will be rendered more difficult by seeking to expand the extent to which clerical type of work that is covered by coal industry modern award?

PN196

MR MORRIS: Yes. You would end up having two levels of conditions and remuneration if you sought to have the coal mining industry award apply in head offices and apart from some other problems which I will point out, in head offices and other sort of corporate administration offices. Where the work has been part and parcel, in other words your employers are employed by an employer in the black coal mining industry and duties directly connected with day to day operation of a black coal mine, they have enjoyed coal mining industry conditions and remuneration, but in head offices and this is another of these sort of sometimes contentious territories, but in off site offices the clerical employees for example have not enjoyed coal mining industry conditions.

PN197

There have been cases about that and the most notorious one is the one that we referred to in the note, the 1982 decision of the Coal Industry Tribunal. When you move away from site and into either a head office or a corporate administration office, you will have the sweep of work that is done under a manager of financial services, for example. You will have accounting work that will be corporate work. You will have tax work, you will have treasury work.

PN198

You've got information systems type work. You'll have public affairs, you'll have corporate governance. You may well in many companies have people who do work that's related to coal and work that is not related to coal and that was one of the instances considered in the head office case, so it is appropriate, it is - - -

PN199

THE VICE PRESIDENT: That is the situation for any large employer in any industry because ubiquitously large companies have head offices that have all of the functions or most of the functions you've just described. If the bench were minded to adopt as a general approach division of classifications for employees in those functions within each of the industry awards, rather than leaving them to a private sector clerical occupational award, some case needs to be made to treat this industry differently and the case that can be made is that the conditions enjoyed by the central coal mining employees are significantly superior to those employees who are employed in those sorts of clerical roles and administrative functions in head offices and off site corporate administration offices and therefore the task of minimising detriment to employees, not increasing costs to employers would be rendered much more difficult.

PN200

MR MORRIS: Indeed, and throw in another contributor to the difficulty. In the coal mining industry, the union that traditionally represents staff, including clerical employees, is APESMA. It's not the Federated Clerks Union, whereas if you went to a head office or a corporate administration office, APESMA might cover professional engineers and scientists, but it wouldn't cover the clerical employees.

PN201

THE VICE PRESIDENT: Yes.

PN202

MR MORRIS: It wouldn't cover the accounting employees, so as I say, that is just another layer of complication and we would say justification for differentiating.

PN203

THE VICE PRESIDENT: This all gets terribly complicated because the consequences that flow from the perspective of particular unions in a turf boundary sense, the consequences that flow from the inclusion or non-inclusion of a particular sector of industry or a particular part of work into or not into a modern award are not clear until we see the legislation.

PN204

MR MORRIS: Yes.

PN205

THE VICE PRESIDENT: Ms Gray, on that point, I understand there is a point of difference about whether or not one includes corporate administration officers and that is the off site administration from head office, but in terms of the head office employees, do you share Mr Morris's view that even if the Commission were to adopt generally in modern industry award the approach of including clerical classifications in those industry awards, it shouldn't occur in the coal mining industry modern award other than to the extent that the APESMA historical classification is preserved.

PN206

MS GRAY: Yes, your Honour.

PN207

THE VICE PRESIDENT: Okay. Mr Morris.

PN208

MR MORRIS: The next one shaded is the haulage of coal off a coal mining lease. It's important to remember that you need to read that in context, subject to the foregoing, this is at the beginning of the dot points, the black coal mining industry includes - but does not include, I should say, haulage of coal off a mine lease. Now, there have been decisions as the representative of the TWU observed earlier that have dealt - quite a few decisions that have dealt with haulage of coal and have looked at the particular circumstances of the employer and the employee and the work that is being done.

PN209

Now, as a general proposition, it is fair to say that the transportation of black coal on a coal mining lease which is the third dot point in the inclusions, that is in the coal mining industry and where it's off a lease, it's not. That is generally, those are generally true propositions. There will be again the areas of grey that the cases will assist in resolving. You could as the CFMEU proposes not make reference to that particular non-inclusion, so just make no reference to haulage, so you would then, when you were looking at this rule, all you would see is transportation of black coal on a mining lease is included.

PN210

We just think that it is appropriate to have the corollary or the counterpoint which is as a general rule haulage of a mine lease is not in the coal mining industry. It's a question of expression, it's a question of clarity. We thought it was better to leave it as we've put it, but the cases are helpful.

PN211

THE VICE PRESIDENT: Ms Gray.

PN212

MS GRAY: Your Honour, with these inclusions and exclusions, our view was that they really should be the black and white ones, you know, if such a thing exists. That's why we didn't want the haulage off a coal mining lease to be an exclusion. Mostly it's not in the coal mining industry, sometimes it had been known to be in the coal mining industry. Another proposal which we came up with was to say to have it as an exclusion, but in words to the effect of haulage of coal off a coal mining lease except where it's being transported to a BHP or a wash plant because in New South Wales it is the case that a number of wash plants are off the lease, off the mining lease and because of that, we think that this exclusion would be misleading on the face and that's what we're trying to avoid with these indicative examples. I also have a copy for your Honour if you wish of the case that was referred to by the representative of the Transport Workers' Union, the Hugh's Transport case which demonstrates the treatment by the Coal Industry Tribunal of the haulage contractors in each area.

PN213

THE VICE PRESIDENT: Thank you.

PN214

MS GRAY: We would be comfortable if the employers were in there, but - - -

PN215

THE VICE PRESIDENT: An exception from the exception made clear.

PN216

MS GRAY: Yes, or not to be in there at all is our view, your Honour.

PN217

MR MORRIS: Perhaps to complete - I am conscious of the Ipswich decision, the other case that covers a number of different, factually different situations, is the FEDFA v Roch Bros case, a decision of the Coal Industry Tribunal of 25 July 1990, sometimes called I think the south coast haulage case. It covered Brambles and Heggies and South Coast Equipment and Cleary Bros.

PN218

THE VICE PRESIDENT: It would be a mistake to assume that historic decisions about where the kinds of industries were drawn for the various purposes that existed under the 51(35) regime is going to determine the line drawing for this exercise. That doesn't mean one can't make submissions about it, it doesn't mean that those submissions may not carry the day at the end of the day, but the mere fact that the Coal Industry Tribunal in a particular dispute has said that something is in or out of the coal industry for its purposes doesn't prevent this Full Bench from drawing the line separately on the basis of considerations that arise under the present statutory regime.

PN219

MR MORRIS: We understand that, your Honour. Indeed, contrary to the position that the Commission would regard itself as having not necessarily a blank page, but certainly a discretion - - -

PN220

THE VICE PRESIDENT: Yes, something approaching it, anyway.

PN221

MR MORRIS: Yes, but we do as we make clear in our submission, our written submission, emphasise the point that because coal mining industry conditions which have followed the cases are substantially more generous than the Commission's general standard 35-hour week, additional annual leave, long service leave, sick leave run into real questions of additional cost for disadvantaging employees if - - -

PN222

THE VICE PRESIDENT: The moment you start to depart from the historical delineations, yes.

PN223

MR MORRIS: Correct.

PN224

THE VICE PRESIDENT: So this debate here about the haulage of coal off the mining lease is not a debate of principle as between you, it's a debate about where as a matter of interpreting the existing old - or if the line was drawn and you don't have necessarily the same view about what the cases mean at the end of the day.

PN225

MS GRAY: I think we do.

PN226

MR MORRIS: Substantially we would, yes.

PN227

THE VICE PRESIDENT: So you don't have any difficulty with the inclusion of that exclusion, haulage of coal off a coal mining lease with the words of qualification that Ms Gray - - -

PN228

MR MORRIS: That's the reference to the cases?

PN229

THE VICE PRESIDENT: Except where they're being transported to a wash plant.

PN230

MR MORRIS: No, I don't think we would agree with that. I think the cases don't enable you to go that far.

PN231

THE VICE PRESIDENT: So there is a difference of opinion between you about what the cases enable you to do?

PN232

MS GRAY: Well, we wouldn't agree with that as well, your Honour, because there are for example wash plants which are so far removed from a coal lease and the Dendrobium wash plant is an example where we would agree that the transportation from a mining lease to the Dendrobium wash plant is at such a distance, 40 kilometres, something of that sort and it has historically been done by contractors in the road transport industry, we would accept that that is out of the coal mining industry, but it's again an exception to the general rule that the transportation between the coal mine and the wash plant has historically been regarded as in the coal mining industry. There are a number of these cases, your Honour, which have got fine distinctions and that's why the union's preference was not to put in an indicative example which has exclusions and then exceptions on the exclusions. If that isn't clear to people - - -

PN233

THE VICE PRESIDENT: Can I just flag with you, just float this for your consideration and comment if necessary? One of the requirements of part 10 A and the request is to produce, if I could summarise, is simple, easy to understand and with clear rules that enable people to determine with confidence what their entitlements and obligations are, be they employees or employers. Isn't there a bit of a problem in not attempting to define the coal mining industry in language that fits that requirement and simply leaving it to the meaning that's been developed in the courts and industrial tribunals, when that itself is a subtle and complicated exercise?

PN234

It's fine for Mr Morris and yourself, you're on top of all of the cases and you can have the debate, but in terms of an individual employee in 2011 or 2012 or an individual employer trying to make a determination, they need to retain specialised solicitors or counsel in order to be able to get an answer to whether or not the award applies to them.

PN235

MS GRAY: And, your Honour, perhaps the fact that we accept that this is the beginning of a new system, this is a new approach both in terms of how it's developed and what the result is, we would say that it may be an appropriate thing that the Full Bench departs from the historical delineation of the coal mining industry with all of its intricacies to something that is in or in connection with the coal mining industry or away from the limitations that the Coal Industry Tribunal itself had which had to be within the coal mining industry. It had jurisdiction only to operate within the coal mining industry, not in or in connection with, so if the Full Bench was of a mind to - - -

PN236

THE VICE PRESIDENT: There are all sorts of problems with in or in connection with because of the breadth of the expression as it has been interpreted in the High Court on a number of occasions as you would be aware. There are separate issues in award modernisation which are not particular to specific industries, but are rather issues that arise in the process generally and that in or in connection with is one of those issues because it arises in relation to scope clauses for every modern award, to the extent to which one wants to resort to the use of that sort of expression.

PN237

I suppose what I am really driving at is in the event that a majority of the bench was uncomfortable with embracing the approach that the parties have agreed upon here in terms of defining the scope of the industry for reasons I have articulated because they would like to create a greater degree of clarity or simplicity or certainty in the mind of ordinary readers of the - track as to whether it applies or not, is there some utility in the parties themselves thinking whether they can come up with an alternative way of defining it?

PN238

I just ask that rhetorically. I am not trying to direct you to do it or anything of that sort and it may be that the bench doesn't go down that route and is happy to embrace it, but if it's not, is that just simply a matter where we leave it until the post drafting consultation and you treat whatever comes from the Full Bench in a draft form as the most provisional of first efforts which is up for grabs or do you want to have a crack sort of post haste.

PN239

MR MORRIS: I think haste is not an attractive proposition.

PN240

THE VICE PRESIDENT: In that case, it can be left on the basis that there will be some scope in the draft modern award. It may be what you have proposed, it may not be, but if it's not, that will be because of factors of the sort that I have indicated, in other words, sort of broader policy considerations and considerations of consistency and simplicity and ease of understanding and anything that is produced will be very much subject to amendment and correction in the light of the insight that the parties as to the adequacy or inadequacy of what has been produced and all of that is hypothetical because I don't know it is necessarily going to happen.

PN241

MR MORRIS: I think that would be our preference. If I could then just restate a couple of propositions and the thinking behind it. The fact is that for decades the parties have conducted their affairs relying on the cases and that hasn't just been sort of a nice academic exercise. It has had its consequences in terms of what employees enjoy - - -

PN242

THE VICE PRESIDENT: The superior benefits, yes.

PN243

MR MORRIS: The superior benefits and they're not just slightly superior, they're very superior.

PN244

THE VICE PRESIDENT: I know.

PN245

MR MORRIS: If one was to sort of say, well, let's - - -

PN246

THE VICE PRESIDENT: As testament to the effectiveness of the union over many decades.

PN247

MR MORRIS: Well, perhaps so, but if one moves away from that, then you might actually have to look at the terms of the award much more comprehensively. You might say, well, it's not actually appropriate to have a 35-hour week and five and six weeks annual leave and so on as the safety net standard in this award. Perhaps you should move to more mainstream conditions.

PN248

THE VICE PRESIDENT: So, Mr Morris, you've thought about trying to define it in some other way?

PN249

MR MORRIS: We looked hard at that and - - -

PN250

THE VICE PRESIDENT: And you've come to the view that having looked at it hard, this is the best solution?

PN251

MR MORRIS: Yes. I think it's fair to say that no single part of this
document - - -

PN252

THE VICE PRESIDENT: Has been the subject of more thinking and attention.

PN253

MR MORRIS: No.

PN254

THE VICE PRESIDENT: When we've multiple mature parties saying that, then that is a pretty compelling basis no doubt for embracing it.

PN255

MR MORRIS: If I can move on then to clause 3.4, we haven't proposed a clause of that sort. We think that is a form issue. We think those words, for what it is worth, perhaps pose as many questions as they answer, but that's without having given them as much thought as no doubt their authors have, so we don't want to say any more about that for the moment. 3.5, that's again a form issue, the references or the cross reference to the national employment standards.

PN256

MS GRAY: Your Honour, might I just say that in respect to 3.4, we have there just uplifted the ACTU proposed standard form and that has obviously been arrived at to minimise concern amongst all of the members of the ACTU, but we would also - if it was unacceptable to the Full Bench or in fact even with provisional draft by your Honour, then we would say that the type of wording proposed by AMMA in the mining industry for the exclusion of modern MIA award should be adopted for this industry as well.

PN257

THE VICE PRESIDENT: So the wording proposed by AMMA?

PN258

MS GRAY: AMMA, yes, and I think agreed to by the AWU, I would be very surprised if not which essentially excludes the modern MIA except where the work falls under the scope of the award and I realise that's circuitous, but nonetheless we would say that that would - to deprive coal mining industry employees of superior terms and conditions is just as contrary to the job of the Commission with respect as to extend those more beneficial conditions to employees who aren't in the industry, so that's why the parties have worked so hard to come up with a formula of this scope clause which deals with what we say are clearly defining the coal mining industry and we understand that we will be able to be heard on the draft when it comes out, but we really would have great concerns about an unrestricted exemption, considering the amount of contracting work done in the coal mining industry since the 90s, it's perhaps 50 per cent of employees working in the coal mining industry are engaged by contractors and that's the potential of half the coal mining industry employees losing their terms and conditions if there was just a bald exclusion for modern MIA which as we understand it, the scope of that award is very expansive.

PN259

THE VICE PRESIDENT: Yes.

PN260

MR KENTISH: Your Honour, if I could add in relation to that AMMA proposal, I should indicate that it doesn't share the support of the CFMEU or I believe the AMWU. That was expressed on transcript yesterday.

PN261

THE VICE PRESIDENT: Yes.

PN262

MS GRAY: So the industry unions are comfortable with it, your Honour, the trades unions in contracting aren't and that's the balance which the Full Bench obviously is facing.

PN263

THE VICE PRESIDENT: But the point that you make is that so far as the coal mining industry is concerned and from the CFMEU perspective, there is a big ticket item which is the extent to which a very large proportion of employees who as a matter of reality and fact are working in the industry could have their terms and conditions prejudiced because of the potential for drawing lines in particular ways that might result in contract employees being covered by some award other than the coal mining industry award, even though they're performing work in the industry and are presently enjoying coal mining industry terms and conditions of employment.

PN264

MS GRAY: Yes, your Honour, and finally on scope before as I anticipate Mr Morris is moving off it, your Honour, we note that our construction general division in its submissions in respect to the coal mining industry said that it would be comfortable with an exclusion which essentially is for shutdown work conducted by contractors and I think the employers and the CFMEU agree that that is work which is clearly out of the coal mining industry.

PN265

We actually proposed that exclusion during discussions on the many variations of the proposed scope clause. We withdrew that proposal when it wasn't acceptable to the trades unions, but the construction general division which of course is engaged in not only construction work we propose an exclusion for, but also has crane operators who are engaged by construction or engineering companies, so work that they say is - we agree that the major shutdown work conducted by contractors who might have construction or engineering employees working for them may be an appropriate exclusion. We wouldn't oppose that, your Honour.

PN266

MR KENTISH: Your Honour, the trades unions or the electrical trades unions shouldn't be taken to opposing that exclusion. We would support the exclusion of major shutdown work. It wasn't taken off the table for lack of support from the CEPU. We would see the exclusion as needing to go further, but those issues have been canvassed already, your Honour, in relation to contractors.

PN267

THE VICE PRESIDENT: Yes. Mr Morris.

PN268

MR MORRIS: I think that is all we had on clause 3. Did your Honour propose to pause for - - -

PN269

THE VICE PRESIDENT: How are we going? I am conscious that I started late. If you think we're travelling sufficiently, finish by the end of the day, we can take the usual luncheon adjournment. Otherwise it can be truncated.

PN270

MR MORRIS: We feel reasonably safe that I think probably another 30 minutes we can - subject obviously to the approach your Honour has adopted of taking particular provisions and getting all the parties to comment on them at once, I think I can say what I need to say about the other provisions in about 30 minutes.

PN271

THE VICE PRESIDENT: Okay, we will take the full luncheon adjournment. Are you happy with that, Ms Gray?

PN272

MS GRAY: Your Honour, I wouldn't mind a slightly shorter one, only because - I think that we probably will comfortably get through things, but - - -

PN273

MR MORRIS: I am happy to go for another 10 or 15 minutes, if that suits your Honour.

PN274

THE VICE PRESIDENT: I am in the parties' hands. Make a decision. Half an hour now or would you like to do the 10 minutes now? Does Mr Bartlett want to say something?

PN275

MR MORRIS: Maybe Mr Bartlett can take us west.

PN276

THE VICE PRESIDENT: I take it you'd like to get on a plane, Mr Bartlett.

PN277

MR BARTLETT: Correct, your Honour.

PN278

THE VICE PRESIDENT: Okay, why don't you fire away.

PN279

MR BARTLETT: Thank you. I intend to be brief. Our submissions are in relation to both WA coal companies who have agreed a joint position. That is in response to the draft CFMEU proposed award. The first issue, your Honour, relates to schedule F which is at page 69 which is a proposal to have eight base conditions for WA. The mining section, your Honour, comes to about 10 pages ..... proposed WA conditions. We have two problems, your Honour. The first is with the concept of state based issues and the second is detailed as being - if I could just briefly address your Honour on the concept.

PN280

THE VICE PRESIDENT: Correct me if I am wrong, but after 2015 there ..... differences, anyway. We are just talking about transitional arrangements.

PN281

MR BARTLETT: Talking about transitional arrangements. Well, certainly schedule G is clearly ..... in terms of the Act ...... We have ..... and we support the ....., their proposal, WA based special conditions. We're happy to consult further with the CFMEU in relation to this. We've only had a brief discussion with Ms Gray. If we open up this issue and start having state based conditions with that level of detail, the proposal ..... in the schedules as transitional which defeats the whole purpose in our view of having simple and easy to understand modern awards, so in terms of - we strongly oppose having the state based schedules.

PN282

I can make a number of comments about the detail, a number of problems with detail ...... That is the first point I wanted to flag, your Honour. The second point, the second issue is in relation to schedule G and staff and again and this commences at page 79, again that ..... approach on the basis of having state based differences in terms of classifications and rates. We again will be seeking to develop a single set of classifications and rates for staff. We think schedule G is very complex as it stands. We have consulted yesterday with the east coast employers and they as I understand it agree to trying to develop a single set of classifications and rates.

PN283

THE VICE PRESIDENT: Do the rates matter in the real world? There is no coal miner in the country, no coal mining employee in the country who is being paid anything less than three or four times these rates.

PN284

MR BARTLETT: Your Honour, perhaps the rates don't matter, but certainly the classifications.

PN285

THE VICE PRESIDENT: The classifications, yes.

PN286

MR BARTLETT: And to have state based, we say it makes no sense to have state based classifications, for example that apply just to New South Wales and Tasmania and another schedule which applies to Queensland and then the WA schedule and what we would like is obviously the opportunity to try and work with the east coast employers to develop a proposal to a single set of classifications and rates and then to put that proposal to APESMA and hopefully agree a single set of rates and classifications.

PN287

Otherwise, we're going to be back here at some point in the future going through that exercise, so that's in relation to schedule G. The third issue, your Honour, concerns char plants and in particular page 7 and 8 of the CFMEU submissions. I can put the position to you in relation to WA. My two clients I am representing today are not the employers of the employees of the char plants.

PN288

They are separate companies, employers at the char plants. It's true to say that those char plants, the companies who are closely associated with the char plants are on the mining lease. At pages 7 and 8 of the submission, your Honour, I can file some written submissions fairly quickly early next week, if not Monday, if it assists the parties in relation to these points I have covered, but in terms of
char - - -

PN289

THE VICE PRESIDENT: This is all going to be transcribed and on the net. It's a matter for you if you wanted to seek to put something else in.

PN290

MR BARTLETT: Some of the detail may assist, but in terms of today, we say char plants are not necessarily for the preparation of mining of coal. Char in fact is a product that is produced subsequent to the preparation for a mining of coal. It's actually - I haven't handled char, but I am told that it's as a result of a process of degasifying the material and it results in a product with a higher concentration of fixed carbon. This results in a lower ash release on burning and a reduction in the sulphur, oxygen and other chemical compounds in the coal.

PN291

Char can also be produced from other materials such as woodchips and the process for charring depends on the operation. Sir, we say that it's a separate product that's produced. It's not coal. The current WA coal awards do not in our view cover char because their scope clauses deal with the preparation and mining of coal and we say that char has nothing to do with the preparation for and mining of coal. The char production facility is not a required element of mining operations. We say it's a production process which occurs subsequent to the mining process.

PN292

THE VICE PRESIDENT: What do you say should happen to the char plants?

PN293

MR BARTLETT: In terms of the safety net award, we're currently investigating that, sir, as to what - in terms of the process unfolds of award modernisation in terms of what the most appropriate modern award to underpin their agreements may be and it may be more of a processing or manufacturing type award. Sir, I should also say that I am not purporting to say that char is only a WA issue because I am told there is at least one other char plant on the east coast.

PN294

THE VICE PRESIDENT: Is that the Bowen one?

PN295

MR BARTLETT: I am not sure of the detail. I can investigate and see what I can find and there is a char agreement as well that exists. I am not sure as I say what an appropriate modern award would be at this stage. In relation to ..... operations, they're covered by greenfields agreements. They were new projects and in that process I think it is fair to say a lot of thought is given to what the award might be that would underpin it, but that is something we're investigating and can provide further information on, sir, as the process unfolds, but at this point we say the exclusion of char, it should be made clear in the award that char plants are not covered. We can argue if we go back to the coverage, the scope clause in 3.1.2.1 that in fact - - -

PN296

THE VICE PRESIDENT: It is the case, though, isn't it, that it's not going - the inclusion of char plants would not result in - I am not putting a proposition, it's a question. I will put it more directly as a question. Would the inclusion of char plants result in increased costs to the relevant employers?

PN297

MR BARTLETT: Sir, at the present time it would have - my understanding is it would have no effect because there's instruments in place, collective instruments in place which cover those terms and conditions. As to what could be the case in the future, that's something we would need to consider, sir, if those collective instruments at some point fell away or those arrangements ceased, but as it stands at the moment, it would have no practical effect.

PN298

THE VICE PRESIDENT: Is that it, Mr Bartlett?

PN299

MR BARTLETT: That's it, your Honour.

PN300

THE VICE PRESIDENT: You should feel free to go. What if we take half an hour now?

PN301

MS GRAY: Your Honour, might I just ask if any material that Mr Bartlett wants to provide could be provided by Monday? That would be of great assistance to the union. We've addressed it in our written submissions.

PN302

THE VICE PRESIDENT: Are you proposing to, Mr Bartlett, or are you content that you have - I mean, you've put the position, it was clear to me what you've put and the basis upon which you've put it. There will be a transcript. If you feel you need to supplement it, please make sure that something is sent on Monday.

PN303

MR BARTLETT: Your Honour, I will take some instructions, but we may do that and it would be on Monday.

PN304

THE VICE PRESIDENT: And you understand that we're simply not in a position, just in a practical way we're not in a position to take account of further written submissions beyond the end of the actual formal consultation period and it's still going to be relatively a nightmare exercise even then.

PN305

MR BARTLETT: Thank you, your Honour.

PN306

THE VICE PRESIDENT: I will adjourn for half an hour.

<LUNCHEON ADJOURNMENT [1.12PM]
<RESUMED [1.53PM]

PN307

THE VICE PRESIDENT: Mr Morris.

PN308

MR MORRIS: At the risk of wearing clause 3, I think the point that we would all be in agreement about is - that's all the parties here, is that getting the boundary of application of this modern award for the coalmining industry right, is peculiarly not uniquely important because of this factor of very significantly different conditions and remuneration in a number of respects. With respect, we would say to the Full Bench a general approach to definition of coverage needs to take account of the peculiarities of this industry and its arrangements in its terms and conditions of employment and the consequences of shifting the boundary.

PN309

What we've sought to do, all of us I think, is to try and draw that boundary in the right place.

PN310

THE VICE PRESIDENT: To put the existing facts on the ground.

PN311

MR MORRIS: That's correct.

PN312

MS J GRAY: Your Honour, just before Mr Morris continues, I had intended just to advise your Honour of our position on the minor issues that we're apart as we go. I think that might be the best way to deal with it. To backtrack very briefly, as to the difference between the parties on schedules, can I say that the CFMEU would have no objection to an amalgamation of our schedules A and B, which is the P&E classifications and rates of pay and B being the allowances being put together in one schedule as proposed by the employers. We'd have no problem with that. Obviously we have a difference of opinion on the necessity or otherwise for a Western Australian specific schedule to remain.

PN313

THE VICE PRESIDENT: Your West Australian schedule, it is still a transitional schedule.

PN314

MS GRAY: Of course, the five years that's permissible and we have been very thorough in preparing it, your Honour, to ensure that any conditions which are common or almost common between the miners' NAPSA from Western Australia and the Production Engineering Award, we haven't sought to retain any Western Australian specific conditions. It's only those where they are quite distinct and different that we have put them into the schedule but we are prepared to have further discussions with Mr Bartlett, which he has requested me to do, both with a Western Australian official and myself to see if we can come to any accommodation or agreement on that.

PN315

THE VICE PRESIDENT: Mr Morris, back to you.

PN316

MR MORRIS: Clause 4, the union has proposed a definition in 4.1.4 of mine. We don't in principle object to defining a mine. It's a term that appears in several places in the draft award, but we have a problem with the open-endedness of the union's definition where it talks about "for establishment in the coalmining industry".

PN317

MS GRAY: Your Honour, before the words "in the coalmining industry" this definition existed in the 95 award at the time that the Coal Industry Tribunal was abolished. As I understand it, when the award was simplified - sorry, in about 1997 the words "in the coalmining industry" were added to that definition. I'm not aware of exactly why other than it appears to be the first variation to this definition between when the award was an award of the Coal Industry Tribunal and when it was an award of the AIRC.

PN318

THE VICE PRESIDENT: Does it matter?

PN319

MS GRAY: We wouldn't be opposed to taking out "in the coalmining industry" and leave it the way that it was defined when it was an award of the Coal Industry Tribunal and that would read "mine means any open cut or underground coalmine or any operation or establishment." Obviously that would be itself restricted by the scope of the award. We think that "in the coalmining industry" is unnecessary. "Any operation or establishment" was a part of the definition that was in the award from 1990.

PN320

THE VICE PRESIDENT: Can you think of any practical application that the words after the comma have? Is there something that's an operation or establishment that's not an open cut or underground coalmine?

PN321

MS GRAY: Yes, your Honour, a wash plant and it's used in terms of, for example, the closedown provisions that were in the award, that the employer had to give a month's notice if they intend to have a closedown at the mine or part of the mine and the mine would have to include a wash plant. I mean, I haven't researched more than that, your Honour, and I can if it's necessary.

PN322

THE VICE PRESIDENT: Does it matter for you to have a definition at all?

PN323

MS GRAY: Initially, we were going to agree to take the definition out because a word search was done and it turned up in a clause which we regarded didn't need the definition, but then when I did a word search of the award after that, I found it turned up in about 12 different provisions and some of them it was necessary, we felt.

PN324

THE VICE PRESIDENT: Okay.

PN325

MS GRAY: But I can look into that further if your Honour wishes.

PN326

THE VICE PRESIDENT: Yes, Mr Morris.

PN327

MR MORRIS: Clause 6, this is a matter of form. We don't have any further submissions to make on that. We assume the Full Bench will be looking at this kind of clause generally.

PN328

THE VICE PRESIDENT: As a general issue, yes.

PN329

MS GRAY: Your Honour, there was a difference in 4.2.2, the definition of seven day roster employee, a small difference but the employer's is to work ordinary shifts on the seven days of the week, ours is to work ordinary shifts on any of the seven days of the week because, for example, sevens ons and seven offs are not a regular occurrence in the industry. We think that any of the seven days of the week make it clearer to somebody looking at the award, that it doesn't infer a requirement that they might have to work seven days straight, although that may happen. It's just not a feature of the industry.

PN330

MR MORRIS: We don't have a problem with the extra words. I should say, just for completeness, clause 5 again we assume that's a matter of form. If you then move forward to clause 7, 7.9 introduces a list of other provisions of a facilitative or flexibility character and you'll see that there are some shaded clauses on the employer's side. That's because we have inserted provisions about those matters which the union doesn't agree with. I'll deal with those when we come to them in the body of the document. .

PN331

THE VICE PRESIDENT: Can I just ask at a general level, part 10A now contains a list of allowable matters. It doesn't use that expression but that's the expression that we're familiar with, which is broader than the Work Choices allowable matters list. There's an argument that says that anything that wasn't a Work Choices allowable matter ceased to form part of any federal award as a result of the Work Choices legislation and therefore, when one is coming to assess what the existing safety net is for the purposes of deciding the inclusion of allowable matters in a modern award, none of those matters in part 10A, in the part 10A allowable matters list, which were not also part of the Work Choices allowable list, can make it into a modern award at this stage. They would need to come in subsequently because they don't form part of the safety net as we speak. I can apprehend what Ms Gray's view is. Do you have a view on that, Mr Morris?

PN332

MR MORRIS: No, your Honour. I hadn't turned my mind to it.

PN333

THE VICE PRESIDENT: Fine, but you haven't sought to exclude matters from your draft award on the basis that they were not allowable under Work Choices but are now allowable under part 10A.

PN334

MR MORRIS: No, your Honour. We've taken the award on its face - or the awards, I should say, plural, and NAPSAs on their faces. Clause 8, 8.1.2 the union refers explicitly to a lodge officer, delegate or official of their union. This is a matter of again, I think, form frankly.

PN335

THE VICE PRESIDENT: You were not intending by your form of words to prevent anyone in that class description to represent employees.

PN336

MR MORRIS: No, as long as the words "the union proposes" are not seen as being exclusive of any other representative, which I don't think they are.

PN337

THE VICE PRESIDENT: It's not intended to be exclusive?

PN338

MS GRAY: No, it's not, your Honour.

PN339

MR MORRIS: You might want to say "which may include". As I say, that's a matter of form and we've said in our submission that we expect the Full Bench will have a view about dispute resolution procedures.

PN340

MS GRAY: In terms of that, your Honour, we'd only say that our proposal is closer to the provision which was introduced in the award in simplification and that's clear from behind tab 3.

PN341

MR MORRIS: Then, in 8.1.3 the union includes the words "subject to Part 15 of the Act." Again, that's a matter of form.

PN342

MS GRAY: Your Honour, we did so. We thought that it was probably prudent to do so because if the representative is a fulltime official then we didn't want to be seen to be introducing a provision into the award other - for right of entry. Obviously, the other proposed representatives are fulltime employees and don't need to have access to the mine site, but if it was a fulltime official, then we didn't want to appear to be introducing something contrary to Part 15.

PN343

MR MORRIS: We don't have a problem with the principle at all. Clause 9, employee duties. Our clause 9 is modelled on the staff award which is more simple. It doesn't have the, what we would say, unnecessary qualifications that the P&E award contains. Again, we surmise that this is a kind of provision where the Full Bench will turn its mind to some general approach to defining employee duties which has an impact on whether or not an employee is entitled to payment.

PN344

THE VICE PRESIDENT: Ms Gray, do you see your version of clause 9 as effecting some limitation on the shorter, more general statement in the employer draft?

PN345

MS GRAY: Yes, it does, your Honour, by having the proviso that such duties are not designed to promote deskilling and we think that is an effective protection for employees which should remain.

PN346

THE VICE PRESIDENT: "Within a safe working practice and statutory requirements" is that also necessary? Does that add anything?

PN347

MS GRAY: That's already an obligation on the employer under the various statutory - - -

PN348

THE VICE PRESIDENT: Occupational health and safety.

PN349

MS GRAY: Yes, and the coalmine specific provisions, your Honour, but I think that it doesn't hurt in an inherently dangerous industry to highlight that on the face of the document. Also, in addition to what I've said today, we would support and adopt the CEPU's submissions on this and the other parts of the award addressed by the CEPU which go to ensuring training and skill retention, skill based classifications which have been lodged.

PN350

THE VICE PRESIDENT: If I can just test this proposition again. The employer's version place a reasonableness requirement on directions to perform work. If they were designed to promote deskilling, they'd presumably fall foul of the reasonableness requirement.

PN351

MS GRAY: One would hope so, your Honour. We're aware, for example, of during the Blair Athol dispute that was very long and ongoing is that a number of our people there were required to paint rocks white for long periods of time and these types of protections in the award are helpful for circumstances where employers are prepared to do that type of thing in order to - for whatever reason they may have. It's not a hypothetical from our perspective, your Honour.

PN352

MR A KENTISH: Your Honour, the CEPU would rely on what we put in writing in relation to clause 9. We went to a number of issues, including the fact that that part of clause 9 was a result of the Full Bench's arbitration in the award simplification decision documents. Your Honour, there's a reference to it in submissions and to the relevant .....

PN353

THE VICE PRESIDENT: Thank you.

PN354

MS GRAY: The other thing we might like to say, your Honour, in general terms that where the employer has sought to introduce a staff provision where it says it's more simple, really shorter and sometimes lacking in what we see as protections for employees, that the proportion of staff in the industry compared to production and engineering is somewhere in the vicinity of about 80 per cent production and engineering to 20 per cent staff, award covered employees. We've heard on a number of issues from the employer's side that the tail shouldn't wag the dog so we say that in that respect that where a staff provision has been included and is opposed by the unions, and particularly by the CFMEU and the trades unions, that those proportions should be considered by the Full Bench.

PN355

MR MORRIS: In terms of 9.1, we see this clause as essentially a statement of what the common law would generally provide. What's added by reference to employees' skills, competence and training in the union's 9.1, we would say it's comprehended within reasonably. It would seem to be that by adding things like "with the respective classification structures of this award, provided some duties are not designed to promote deskilling" is a layer of gloss, if you like that ought to be unnecessary in a general modern award and is capable of leading to argument, contention, whereas it's better to leave the law - general and under common law the familiar concept of reasonably and lawfully.

PN356

THE VICE PRESIDENT: Ms Gray, I think it was Blackadder, wasn't it - the case, not the TV show, not the comedian - dealt with the issue of the entitlement of the employer not to provide work to an employee and the position that was adopted was, yes, well, in fact it was a common law right. Put aside that special class of employees who depend upon the maintenance of particular skills in order to be able to earn their livelihood, actresses, actors, circus performers and the like, but an employer did have an entitlement to pay somebody and say, "Well, don't do anything." The problem for the employer in Blackadder, who effectively sought to do that to Mr Blackadder, was that there was an obligation under the order of the Commission to in fact give him work and so it was a question of compliance with orders. I take it you would say that because the, for example, deskilling, the non-deskilling obligation already exists as a matter of arbitrated decision, as distinct from common law, that it's appropriate to maintain them in a modern award.

PN357

MS GRAY: We would, your Honour.

PN358

THE VICE PRESIDENT: I understand what you say as well, Mr Morris.

PN359

MR MORRIS: As I say, we suspect that this is a type of provision where the Full Bench may well look to some standardisation. 9.2, we don't really have a difficulty with that. It's perhaps an elaboration. 10.6, the union has some additional words in the salary sacrifice provision. We're content with those extra words, I must say. They just reinforce what we would say is implicit.

PN360

THE VICE PRESIDENT: You could look at those words.

PN361

MR MORRIS: Yes. We would say it's intended what we sought to set out in 10.6. Clause 13, a bit of difference between us here. Again our position is predicated on this being a modern award that applies to all of the employees under the award. We're not seeking to have - - -

PN362

THE VICE PRESIDENT: Is there any necessity to retain the weekly basis. I see you've both got that. This daily and weekly hire is an historical artefact. The practical reality is that people are engaged - the practical reality is they're engaged on an ongoing basis and they accrue rights as though they're ongoing employees in respect of termination and notice and what have you. Correct me if I'm wrong, the original significance of daily hire or weekly hire was that there was a separate contract for each day or a separate contract of employment for each week, as the case may be, and the employment relationship could come to an end through the effluxion of time on that daily or weekly contract and there'd be no termination at the initiative of the employer if they said, "There's no work for you next week" or "No work for you tomorrow" in the case of daily hire employees. That situation is then modified by a whole variety of statutory provisions and entitlements to notice and the like that are provided by statutory agreements. Is it important to retain the weekly basis?

PN363

MR MORRIS: It's hard to see what work it really does, I must say.

PN364

THE VICE PRESIDENT: Ms Gray?

PN365

MS GRAY: It's probably anachronistic your Honour, and I think because it used to be the contract miner of working for reward and weekly hire was introduced as a different type of employment in this industry but that was a long time ago now.

PN366

THE VICE PRESIDENT: From the employer's perspective, employment is either ongoing or it's not and weekly hire doesn't really come into it. We've got the temporary casual difference there.

PN367

MR MORRIS: Before I go onto that, if I could just revert to clause 10 for a moment, our clause 10 which doesn't have a union counterpart, that's the annualised wage arrangement. The Act allows for annualised wage arrangements,. They are commonplace for staff. They're certainly commonplace for production and engineering employees.

PN368

THE VICE PRESIDENT: Pursuant to individual collective agreements.

PN369

MR MORRIS: With staff, more typically under individual contracts. With production and engineering employees there will be some instances absolutely where employees are not covered by a workplace agreement but are on annualised arrangements, although predominantly they'll be under a workplace agreement. What we would say is, if you can do it under a workplace agreement and if you can do it in a practical sense by offering a staff employee an all-up salary, no one takes exception with the fact that you can do that. The award ought to actually reflect that. It's a safety net award and it's a reference point for the no disadvantage test. There's absolutely no reason not to allow it and to incorporate the safeguards which the Act prescribes.

PN370

THE VICE PRESIDENT: These form of words and the other things you're adverting to allow for a regime where a testing can occur after the event and the employer will be obliged to make up pay if it turns out on a testing that the employee has been underpaid.

PN371

MR MORRIS: Yes.

PN372

THE VICE PRESIDENT: Ms Gray, is your opposition based on the proposition that if it's not there in the awards now, this is effectively a new claim or an enhanced benefit being conferred to employees at the expense of employers?

PN373

MS GRAY: Without the necessity to bargain, your Honour, and aggregate wages are not uncommon in collective agreements but we do say that it hasn't been in the production engineering award before, that just because it's permissible in a modern award, it doesn't mean that it needs to go in there and it is an issue for bargaining, we would say. We have addressed this in our written submissions, too, your Honour.

PN374

MR MORRIS: 576J(1)(f) is the relevant section that provides for this. It just seems to us it would be a shortcoming of a modern award if it didn't reflect a reality and so what happens in that regard.

PN375

Going back to clause 12, employment categories, we include a definition of a fulltime employee, the union's doesn't. I don't know why that is. With respect to part time employees - - -

PN376

THE VICE PRESIDENT: No doubt the union's clause proceeds on the assumption that you're a fulltime employee by default when you're employed in accordance with 12.1 and you're a part time then, only if 12.2.1 applies.

PN377

MR MORRIS: Correct. It just seemed to us again it was a matter of style. It was better if the award defines a fulltime employee. The part time employee referred in point 3, we've added some words, "the weekly rate prescribed by clause 18." I would have thought that was just a matter of form.

PN378

In 13.3.6 there's a point of importance here. We say part time employees are entitled to payments in respect of annual leave and personal carers' leave based on the proportion of their average ordinary hours of 35. The union says "all paid leave based on the proportion." That can lead to, for example, bereavement leave. If an employee seeks bereavement leave on a day on which a part time employee is employed, then it's leave for the day. It's not some proportion. If, on the other hand, they take a day off - I'm sorry, they are - what otherwise would be taking bereavement leave but it's not one of their working days, then they wouldn't get paid for it at all. We'd say bereavement leave looks after itself. It shouldn't be subject to some proportional rule. We think that it's really only annual leave and personal carers' leave that are proportional.

PN379

MS GRAY: My difficulty with the employer draft there, your Honour, is that it doesn't afford otherwise to employees, for example, pressing domestic need. I know that the employers love to forget about pressing domestic leave but it is something which is in the award and which part time employees would be entitled to. Even if they were to say the public holidays and bereavement leave, for example, are covered by the NES and a part time employee would be entitled to them in that way, we say that pressing domestic leave needs to be afforded to part time employees and the employer's words don't deal with that.

PN380

THE VICE PRESIDENT: Is it just pressing domestic need leave that would need to be added to the employer's list or is there still some difference between you there?

PN381

MS GRAY: As long as the NES took care of the rest in effect, it would only be pressing domestic leave, your Honour, but we've taken the attitude throughout this of where there are entitlements more beneficial than the NES then they should be specified and wherever we can we want to highlight to employees looking at an award what their entitlements are on its face. By saying all paid leave, we thought it was clearer to an employee that whatever a fulltime employee was getting, they would be getting it too, but on a proportionate basis. I take Mr Morris's point but perhaps - we could certainly live with it if their draft be varied to include pressing domestic leave if the NES picked up the rest.

PN382

MR MORRIS: Just responding on pressing domestic leave, our primary and strongly contended for position is that it should be quietly despatched.

PN383

THE VICE PRESIDENT: I know that. I've read it.

PN384

MR MORRIS: If you just think about that for the moment, the effect of the - - -

PN385

THE VICE PRESIDENT: Pressing domestic need is for all practical purposes an additional day of annual leave. For practical purposes, isn't it? Do the employers ever go and check the assertion by the employee that there is some circumstance of pressing domestic need?

PN386

MR MORRIS: An employee can ask for a day of annual leave. If it's bereavement leave they can take bereavement leave. If it's personal carers' leave, they can take that leave. Pressing domestic leave is some strange, weird discretionary beast that stands apart from those. What does proportional pressing domestic leave mean? If you work three days a week does it mean you get - - -

PN387

THE VICE PRESIDENT: Three .fifths of a day.

PN388

MR MORRIS: - - - three-fifths, exactly, which is not what happens in practice, either they get the leave and they are paid for the day if it's a working day, or they don't get the leave.

PN389

MS GRAY: Unless they're a part time employee who works five days in an office of, you know, six hours a day or five hours a day. I mean, part time employment - - -

PN390

MR MORRIS: In those circumstances a day means six hours.

PN391

MS GRAY: Proportionate to - - -

PN392

MR MORRIS: The leave is not proportionate.

PN393

THE VICE PRESIDENT: Payment for it is. It amounts to the same thing in practice, the three day part time employee is going to end up with three-fifths of one day's pay for taking a day of pressing domestic need leave, on the union's version of the clause.

PN394

MR MORRIS: That's right, and as I'm instructed that's not the position at the moment.

PN395

THE VICE PRESIDENT: That's not what actually happens, they actually get paid one full day.

PN396

MR MORRIS: They get paid whatever they would have been paid for that day. If they work four hours on a day, they get paid four hours. If they work eight hours that day, they get paid eight hours.

PN397

THE VICE PRESIDENT: I should draw special attention in the transcript to the CFMEU proposing a clause that is less than what is actually occurring.

PN398

MR MORRIS: It tells my figures are wrong.

PN399

THE VICE PRESIDENT: A demonstration of just how reasonable, Ms Gray is.

PN400

MR MORRIS: The next point of difference is the temporary employment.

PN401

THE VICE PRESIDENT: Could I ask a question of Ms Gray on this. If a person is employed as a temporary or a casual at the time of their engagement, when one is talking about a safety net, how can the presence or absence of those alternatives be seen as constituting part of the safety net. The safety net is that which guarantees the conditions and entitlements of an employee once they've been engaged. How can the form of the engagement impact upon the safety net one way or the other? Sorry, how can the form of engagement be said to be part of a safety net that has to be preserved, or the absence of forms of engagement is said to be part of a safety net that has to be preserved? Have I made myself clear? I know that was a bit of a garbled question.

PN402

MS GRAY: Your Honour, in terms of casuals, we say that unless it's provided for in the safety net modern award, a casual provision, then - - -

PN403

THE VICE PRESIDENT: I understand. Unless it's provided for, then it can't occur, but in the case of pressing domestic need, you can say to take that out involves taking away an existing entitlement without compensation and that is altering the safety net for the employees who are presently entitled to pressing domestic need leave. This is in rather a different category and I'm just wanting to test the proposition or play Devil's advocate. The safety net represents what you're entitlements are once you're employed. How can a form of employment be seen as constituting part of a safety net that has to be preserved in modern award?

PN404

MS GRAY: Perhaps indirectly, your Honour, by casuals being able to be engaged, reduces job security for other employees in the industry as well as the employee who is engaged as a casual and that reduces an employee entitlement. Entitlements, we say, go beyond monetary conditions or even leave conditions but also go to security of employment and that's demonstrated by consultation for redundancy and redundancy pay and compensation for loss of a benefit. Perhaps it's something that - - -

PN405

THE VICE PRESIDENT: Security of employment is the big ticket item when it comes to casuals and temporary employment modes.

PN406

MS GRAY: In terms of temporary employment, though, your Honour, the employers - and we've been so pleasant to one another, I don't want to use a word like "disingenuous" but are not consistent - - -

PN407

THE VICE PRESIDENT: But you're going to anyway.

PN408

MS GRAY: - - - because what they've said there is we want to introduce some flexibilities that are already there for the staff, but they haven't imported or sought to import the staff temporary provision as it is, which has some qualifications which also provides some safeguards for employees. They've taken away the safeguards but given the flexibility and we say that that's not appropriate. If the Full Bench were of a mind to introduce a temporary employment provision, then we say that the staff provision which is currently there, which says in effect, when temporary employees could be engaged, for what purpose, is retaining the employee benefit and at the same time giving the employer flexibility.

PN409

THE VICE PRESIDENT: Ms Gray, just again in the Devil's advocates way, there are a number of criteria and objects that are in the legislation that have to do with economic outcomes, efficiency and what have you. Why shouldn't the provision of the range of modes of employment that is ordinarily available across the economy, occur in relation to the coalmining industry in the pursuit of those economic objects in part 10A, and to the extent they're repeated in the request there as well. Why shouldn't that happen? When job security is a rather - I mean, I understand it's a very real issue but it's a rather nebulous issue in terms of award entitlements. It's not there directly, it's something that sort of appears in the number or appears in an implied way in the fashion you've described through redundancy processes and the like.

PN410

MS GRAY: I suppose our opposition to a temporary employment clause is not as vehement as our opposition to casuals, your Honour. I just say that in a general way subject to having the protections for employees that the staff provisions currently have. In terms of casuals, the Full Bench in the simplification case rejected the employer application to have a casual provision inserted and they did so on the basis of essentially the inherently dangerous nature of coalmining and in production engineering areas as opposed to staff who may work a majority of their time in a mine site office. To have casuals coming onto a mine site without having dealt with all of the training issues and maintenance of skills was regarded by the Full Bench as - - -

PN411

THE VICE PRESIDENT: The bottom line is that there are good safety reasons for not providing for casuals in a coalmining industry award, even if those economic objectives might induce the Bench to include casuals generally in modern awards.

PN412

MS GRAY: Yes, your Honour.

PN413

THE VICE PRESIDENT: It's that safety issue about the nature of coalmining and the inappropriateness of having people with minimal training there on a regular basis.

PN414

MS GRAY: Yes, your Honour, and in practice, the way that the employers have dealt with a requirement to turn on and off the tap of labour, so to speak, by casuals is by having essentially labour hire companies produce people for short term use at coalmines but those labour hire companies have employees who are able to be employed as full time employees by the labour hire company, properly trained, have their accreditation up and then be available to different coalmines for short term absences and things of that sort. That's the way, to my understanding, your Honour, that the industry has dealt with the requirement - have that flexibility without having to compromise safety.

PN415

THE VICE PRESIDENT: Mr Morris, have you been cut off in this? I don't think you'd actually got the end of saying what you wanted to say.

PN416

MR MORRIS: No. In terms of casuals, this is a principal issue, we would say. Your Honour made some observations about classes of employment that are available generally in the labour market and in industry. This is an award that will apply not just to operative miners, if you like. Casual employment ought to be available, we would say, as a matter of principle and then regulated appropriately so you know what the rules are that apply to casuals.

PN417

The safety issue that was raised, it was raised in the Full Bench decision. The decision was more a case of, "We're not persuaded that we should allow casual employment," as I recall it, one of the Full Bench decisions in the award simplification. What we would say about that is, the safety regime in the coalmining industry is so strict, so comprehensive, the obligations of employers so plain, that safety issues should be determined by the safety legislation, not by some proxy cut-off in the award. The award is really usurping the role of safety legislation by sort of removing this as a type of employment..

PN418

The other point about casuals is, if employers can't engage casuals where it's safe to do so, then they will go to contractors or labour hire firms and procure the same result and there have been plenty of arguments. They routinely have come up until the prohibited content rules and regulations started to bite. It was commonplace to have rules about not hiring contractors or labour hire. It's not as though the union is relaxed about contractors and labour hire, they are - - -

PN419

THE VICE PRESIDENT: On the contrary. Ms Gray has been quite upfront about it, it's about job security. Ultimately it's about job security for the other employees.

PN420

MR MORRIS: What we would say is, casual employment as a principle is commonplace. It ought not to be anathematised or prohibited in this industry, it should be allowed. The safety legislation, the coalmine health and safety regulation, as we know, is very onerous. That is the appropriate method of controlling an employer's access to casual labour, if you like. That's what we say about casuals. It's already there for staff, it has some sort of - - -

PN421

THE VICE PRESIDENT: It shouldn't be taken away from staff and it would be rather peculiar to be authorising it for some classifications but not for others.

PN422

MR MORRIS: Correct.

PN423

MS GRAY: In terms of staff, your Honour, just to jump in in front of my colleague, that the casual provision in the staff award is restricted for use to fill any vacancy created by a permanent employee being on leave of absence or in the event of a short term requirement. Making this applicable to all employees under the award takes away a specific protection that exists currently in the staff award for staff employees.

PN424

THE VICE PRESIDENT: If it was included sith that protection generally, you'd still be opposed to it on the bases that you've advanced.

PN425

MS GRAY: Yes, your Honour. It would at least be fair for staff, in our submission.

PN426

MR KENTISH: Your Honour, it's a minor point but just in terms of the Commission's role in regard to safety, that is actually one of the matters which is listed under section 576B(2):

PN427

In performing its functions under this part the Commission must have regard to the following factors and strategies ..... employees.

PN428

It's a minor point but to the extent Mr Morris was - - -

PN429

THE VICE PRESIDENT: Mr Morris answered it by saying that there's a very comprehensive detailed safety regime provided for in the legislation and that's the appropriate way in which the safety can be ensured and which would be ensured and this is not the introduction of capacity to engage employees as casuals or temporary employees will not and should not be seen as undermining safety. Your point is, it's permissible and indeed required for the Commission to take account of safety.

PN430

MR KENTISH: That's correct, your Honour.

PN431

THE VICE PRESIDENT: Mr Morris.

PN432

MR MORRIS: We would say more about that in - we'd say it would be, as I say, usurping the health and safety legislation to adopt an arbitrary rule on this.

PN433

THE VICE PRESIDENT: Shall we move onto 15, is it?

PN434

MR MORRIS: Perhaps just in temporary employment we can cover that. It's arguable that you don't actually need a clause about temporary employment unless it has some consequence in terms and conditions that apply as a result. In this industry it does. Temporary employment is fixed term or fixed task. There's nothing to stop an employee being employed under the Production Engineering Award today for a six month period or a 12 month period or a period of a particular project, but we have this peculiarity that sick leave and personal carers' leave in this industry is conferred - or a year's leave is conferred on commencement and anniversaries of employment.

PN435

THE VICE PRESIDENT: It's conferred in advance.

PN436

MR MORRIS: Conferred in advance and if you employed someone for say two months, it's absurd to confer on them a year's annual leave but that is how the award operates today - sorry, I meant personal leave, personal carers' leave. It ought to be, in the interests of fairness and clarity, clear temporary employment is available and how personal carers' leave and annual leave apply.

PN437

Clause 16, redundancy. We've included in 16.1 a definition of redundancy which we think is an appropriate prescription in a modern award for the sake of clarity. This may well be a matter that has some general approach by the Full Bench and we think it's also important to make it explicit that it doesn't apply to casual or temporary employees.

PN438

THE VICE PRESIDENT: Ms Gray, do you object to it as a matter of principle including anything like this, or do you object to the form of words?

PN439

MS GRAY: Your Honour, we object to, I suppose, the change from what is an industry scheme and what we've sought to do with our draft is to replicate that industry scheme in its entirety, other than one change, which is, if you get alternate work provided in the same general locality rather than in the district. Ours is picking up the whole scheme. One of the most important things we say about retaining these definitions which have been in the industry since the redundancy scheme itself of technological change, market forces or diminution of reserves, is that many operational requirements, general operational requirements have been taken into account when determining whether redundancies occur due to technological change or market forces or a diminution of reserves.

PN440

We say that these definitions in our industry have been applied and are clearly understood by employers and employee representatives alike and it would actually be conducive to disputation to introduce a definition which may apply in general industry but which has never applied in the coalmining industry.

PN441

THE VICE PRESIDENT: What you're effectively saying is that the coalmining industry should have a narrower conception of what amounts to redundancy than the rest of industry. For example, it may be that through management reorganisation an employer can say reduce costs by shedding staff, making people redundant. That sort of managerial rearrangement wouldn't come within technological change, market forces or diminution of reserves, would it? In other words, what I'm saying - - -

PN442

MS GRAY: Just that they want to make more profit?

PN443

THE VICE PRESIDENT: Yes.

PN444

MS GRAY: It could easily come within market forces and, your Honour, I'm quite prepared to do - I had commenced some research on this. I haven't concluded it, that's why I haven't brought it along in summary today, but there is a very broad range of circumstances which the Coal Industry Tribunal found to come under the heading of market forces.

PN445

THE VICE PRESIDENT: Let me put it differently. Redundancy is one of these topics that may well end up attracting a standard clause that the Bench will be seeking to apply generally across modern awards, subject to appropriate adjustments to meet the specific circumstances of particular industries. Are you contending that the concept of redundancy in the coal industry should be narrower than the concept of redundancy that applies more generally?

PN446

MS GRAY: Yes, your Honour,. We're saying the whole scheme should be left intact.

PN447

THE VICE PRESIDENT: You acknowledge that the existing scheme is narrower in terms of what it comprehends as constituting redundancy than the concept as it exists more generally in industrial law.

PN448

MS GRAY: I think so, your Honour, and of course, the payments are higher.

PN449

THE VICE PRESIDENT: That is a different issue.

PN450

MS GRAY: There is no reference to customary turnover of labour, for example, the exception from the redundancy provision.

PN451

MR MORRIS: Your Honour, our view is that yes, we're seeking to retain an industry specific redundancy scheme but that doesn't mean that you are confined to precisely the language that might be there in the rules at the moment and that the language we've used - the approach we've used is appropriate in a contemporary setting. The inclusion of operational requirements, for example, is a contemporary appropriate prescription and if anything, it makes redundancy pay available in a wider class of circumstance than if it's not there. Either it does some work, which is to enlarge the class of terminations that qualify for redundancy payments, or it does no work, in which case there would be no - there would be no concern there.

PN452

I think here we're looking at relatively fine points of distinction but it seemed to us that what we have matches more the national employment standard and is an appropriate clear prescription that ought not to be contentious but - sir, this may be something which, as you say, the Full Bench will have a broader view about. The industry specific - - -

PN453

THE VICE PRESIDENT: I think we're all agreed to the extent that there's industry specific standards for redundancy which are superior to those applying more generally in the community that's consistent with part 10A and the request. In the national employment standards that there can be a retention of those benefits. The focus of disagreement is on the ambit of what constitutes redundancy, so you're contending for a broader notion on one view for the reasons you've articulated and Ms Gray contends for a narrower version for the reasons she has articulated and then in relation to those additional benefits or protections that Ms Gray has referred to.

PN454

MR MORRIS: Yes it think that's right and if you compare our 16.5 with the union 's 15.4 you can see a reference at the end where our formulation of the discretion of Fair Work Australia is expressed differently. The reference to determining terms is just as expedient we would say is inferior to what we put at 16.5 which is think is closer to what the national employment standard implies.

PN455

THE VICE PRESIDENT: Yes.

PN456

MS GRAY: And one other thing Your Honour and I think we've addressed this in our written submissions, is that the employer's variation doesn't change the distinctions between the severance - cases of severance and retrenchment pay and they were two separate concepts when put in to the coal mining industry awards.

PN457

THE VICE PRESIDENT: Can you just explain to me what the difference is?

PN458

MS GRAY: Retrenchment - - -

PN459

THE VICE PRESIDENT: Is it just a case of severance being a concept that is different to a expend ..... redundancy but you can have a severance other than for than purposes of redundancy? Other than for reasons for redundancy I should say.

PN460

MS GRAY: At the moment I've got a bit of a mental blank on it Your Honour and I don't really trust myself to respond to your question I'm sorry.

PN461

THE VICE PRESIDENT: That's all right.

PN462

MR MORRIS: Your Honour we just note that one change that has been made and appears to be - is agreed - if you take our 16.4, the last sentence and the union 's 15.3 in the corresponding sentence, it used to refer to allowing the employee to resign - sorry to - - -

PN463

THE VICE PRESIDENT: The same district.

PN464

MR MORRIS: - - - that he's in the same district and we think adopted a more sensible, contemporary formulation by referring to allowing the employee to reside in the same general locality.

PN465

THE VICE PRESIDENT: Yes. Now that takes us to 18 or 18 of the employer, 17 of the union.

PN466

MR MORRIS: Correct. There we think consistent with a modern award that is facilitative. It ought to be open to an employee to agree on an average if that is more than the cycle of that particular roster or indeed other than the cycle of a particular roster.

PN467

THE VICE PRESIDENT: Ms Gray you say they should have to bargain for that?

PN468

MS GRAY: Well we're saying that the roster cycle might be 12 weeks in length Your Honour and we're saying that that's sufficient time for an averaging of ordinary hours to ensure that there's no disadvantage to an employee.

PN469

MR MORRIS: That takes us to - - -

PN470

MS GRAY: Also to say Your Honour that to see that it may be also a back door way in to annualised salary arrangements you could average the ordinary hours over 12 months for example and - - -

PN471

MR MORRIS: The next one is our 18.4 contrasting the union's 17.4. I think this is a matter of form.

PN472

MS GRAY: It may well be a matter of form Your Honour but what it - the form of the employers gives an entirely different flavour. Currently this is a provision whereby the employer must try to reach agreement with the employees before them seeking an order if that agreement can't be made and by taking out that middle step and that emphasis on reaching agreement, it appears to give the employer the right to implement it without seeking agreement.

PN473

THE VICE PRESIDENT: That's not what you're seeking to achieve?

PN474

MR MORRIS: Well we are looking to a situation where the employer should be able to determine it unless directed not to. In other words there ought to be a circumstance where the employer has a discretion subject to - - -

PN475

THE VICE PRESIDENT: Disallowance by - - -

PN476

MR MORRIS: Disallowance yes. It's a question of substantially it would fall under - I suspect at the end it won't make a big difference.

PN477

THE VICE PRESIDENT: Do you have a - I can't recollect - do you have a work as usual clause in the dispute settlement procedure?

PN478

MR MORRIS: We do.

PN479

THE VICE PRESIDENT: Status courante?

PN480

MR MORRIS: We refer to that in our written submission. We have retained that status quo - as it's sometimes called - provision recognising the Commission may have a general approach to the inclusion or non inclusion of such terms. As Your Honour would know, it's sometimes the subject of contention.

PN481

THE VICE PRESIDENT: Yes. All right.

PN482

MR MORRIS: I'm just reminded by Mr Aicken that our 18.4 with the reference to or by order of correspondence with the current award provisions, except of course if refers to the Australian Industrial Relations Commission.

PN483

THE VICE PRESIDENT: And it's implicit that that is by order and consequent upon a dispute resolution process?

PN484

MR MORRIS: Yes if it's evoked.

PN485

THE VICE PRESIDENT: We're on to 17.7.6 of the union - - -

PN486

MR MORRIS: Yes. This is one we've made a submission about. We think it's inappropriate in a contemporary award to prohibit or proscribe pre shift overtime following a rostered day off. The overtime needs to be reasonable. We're not talking about rostered overtime here, we're talking about tad hoc or discretionary overtime and there's no reason to retain, just a general prohibition of that sort.

PN487

THE VICE PRESIDENT: And Ms Gray you say that's in the - - -

PN488

MS GRAY: Yes Your Honour.

PN489

THE VICE PRESIDENT: - - - entitlement or benefit and it should be preserved.

PN490

MS GRAY: Yes and it's part of this - all of this clause essentially is there looking at protecting rostered days off for employees and you can see, not just the one that's identified, the rest of the ones the employees agreed with but it's there to ensure that an employee gets sufficient time to recuperate from their work, to come back fresh, to have their rostered days off unless they put their hand up otherwise. We say that it's an issue that goes to fatigue management. There's
12 hour shifts which are not uncommon in the industry and having pre - and all of the rosters have built-in overtime in any case so to have their pre shift overtime additional to overtime of a shift can lead to dangerous hours.

PN491

Now we know that there are protections in terms of it having to be reasonable but often employees feel under an obligation to assist and so on and so forth, so we say that it's part of a scheme there and the whole flavour of the clause is to protect rostered days off as leisure time, as recuperation time and where an employee's got an existing right to not be forced to work pre shift overtime and that should be retained in the modern award.

PN492

MR MORRIS: Can I just add in relation to this as I understand it, it's only the production and engineering award that has this prohibition ..... so to have it apply, generally would be to extend it to staff who haven't been subject to that restriction as would others. We say this is moving to something which would come down to reasonableness and not be subject to a blanket prohibition.

PN493

THE VICE PRESIDENT: Yes.

PN494

MS GRAY: The quid pro quo of course for the protection of the employees, the integrity of the employees' rostered days off Your Honour is that statutory officials, whether they be the staff under managers or whether they be members of the Colliery Officials Association deputies, or whether they be our members who are deputies or open cut examiners, there's a provision in there that this prohibition doesn't apply to statutory officials whose non attendance would affect the operations of the mine.

PN495

THE VICE PRESIDENT: Their safety doesn't matter as much does it?

PN496

MR MORRIS: Again I just reinforce the point that this would extend to staff who may not be statutory officials. For example, an engineer, or some other technical person.

PN497

THE VICE PRESIDENT: Yes.

PN498

MS GRAY: Staff always volunteer for the extra time if they're asked Your Honour.

PN499

THE VICE PRESIDENT: That takes us to the meal breaks.

PN500

MR MORRIS: This is one where we think our formulation's more contemporary. It doesn't give an employer open slather to require an employee to work past five hours without a correct break. It leaves it to the reasonableness of employers and employees as to whether someone works beyond five hours. The union's 18.2 again has one of these sort of prohibitions, must not be required to work more than five hours. We just think that that's - that's a sort of an arbitrary prohibition that doesn't - is not really apt in the - - -

PN501

THE VICE PRESIDENT: If you took 18.2 out, is there any difference in effect between the union's 18.3 and your 19.2?

PN502

MR MORRIS: I suspect in practice, not.

PN503

THE VICE PRESIDENT: This is really a stylistic issue.

PN504

MR MORRIS: Yes. I think our 18.3 versus the 19.2 - sorry our 19.2 versus the union's 18.3 - - -

PN505

MS GRAY: But the 18.2 is clearly one of substance Your Honour. It's a right to refuse and it's - there aren't too many right to refuse. When you combine that with the requirement of the employee to have to follow the direction of the employer without these specific rights to refuse where they really go to fatigue, whether it be working you know, for more than five hours without a correct break or whether it's working pre shift overtime following an RDO, there's only a few protections in terms of an employee's right to refuse and we say that they should be retained in the modern award in a dangerous industry.

PN506

THE VICE PRESIDENT: Yes.

PN507

MR MORRIS: It's again consistent with what we said about casuals, fatigue rules - every mine ahs rules about hours and fatigue and the power of a ..... regime. This is not something that ought to have overlaying it a prohibition in the award. I think 18.4 is the next - - -

PN508

THE VICE PRESIDENT: I'm sorry, which one?

PN509

MR MORRIS: The employer 20.4. We say subject to the NES an employer:

PN510

May require the employee -

PN511

whereas the union says:

PN512

May request an employee to work reasonable additional hours.

PN513

THE VICE PRESIDENT: Were you intending, Ms Gray, that it should be optional for the employee to say yes to a reasonable request?

PN514

MS GRAY: Well Your Honour, because this is not just extra hours, but it's hours in addition to the rostered overtime hours, that is - - -

PN515

THE VICE PRESIDENT: I just wasn't sure - were you intending that a reasonable request for additional overtime should be at the option of the employee?

PN516

MS GRAY: No, if it's a reasonable request for additional overtime, then the employee would agree to it. What the employer's draft infers, is that an employer can require the employee to work hours additional to - and I know it says:

PN517

Reasonable additional hours in addition to their rostered ones -

PN518

but the flavour of it then is that an employee has to - must agree to a request to work additional hours to their rostered hours.

PN519

THE VICE PRESIDENT: If that was changed to say, "Subject to the NES an employer may require an employee to work additional hours in addition to their rostered hours, provided it is reasonable to so request". If it was just restructured to put an emphasis on the reasonableness being a condition , you'd have that - - -

PN520

MS GRAY: Yes, we wouldn't have the same difficulty with it at all Your Honour.

PN521

MR MORRIS: We say the safeguards here are subject to the NES and the additional hours be reasonable so how you express that is - - -

PN522

THE VICE PRESIDENT: Yes I think there's effectively an acceptance of the appropriateness of using a word like, "Require", provided that it's made clear that the requirement itself has to be reasonable.

PN523

MR MORRIS: That's exactly what this will result in ..... hours.

PN524

THE VICE PRESIDENT: We then jump to .....

PN525

MS GRAY: There was a small difference on - - -

PN526

THE VICE PRESIDENT: 21.10 - - -

PN527

MS GRAY: - - - 21.7 and 22.7 and we would say that the employer's is dramatically preferable to ours. I think ours was probably a typo Your Honour.

PN528

THE VICE PRESIDENT: 21.7?

PN529

MS GRAY: 21.7 we had and between 21.7 A and B and the employer's had, or. I think the or is the correct word so we concede that one.

PN530

THE VICE PRESIDENT: Yes.

PN531

MR MORRIS: And means or and or means and.

PN532

THE VICE PRESIDENT: Then we've got to cashing in annual leave, I think you've already said what needs to be said about that - it's a matter of principle?

PN533

MR MORRIS: Yes, we dealt with that in our submission.

PN534

MS GRAY: We may be seeking to - probably not until the exposure draft though Your Honour - we'll see how we go and make further submissions, but there is a history to additional leave being granted in the coal mining industry and why it was prohibited to be paid out during employment and we may need to go to that at a later time, but we've covered in our submissions what we need to say.

PN535

THE VICE PRESIDENT: Yes. I can genuinely say I don't have a - even a provisional beyond this - but if the Full Bench came to the view that it should include such a clause in an exposure draft, then obviously in the post drafting consultation, you would have an opportunity demonstrate by reference to that history - - -

PN536

MS GRAY: Yes.

PN537

THE VICE PRESIDENT: - - - it ought be removed from the final award?

PN538

MS GRAY: Yes Your Honour and I'm not trying to create any work for myself at the moment.

PN539

THE VICE PRESIDENT: Absolutely.

PN540

MR MORRIS: At 23.3 - - -

PN541

THE VICE PRESIDENT: You've done it pretty - I mean the parties have done a pretty remarkable job getting what they've got done at the time of this - I have a sense of just how big the job was. Sorry, the 23.3?

PN542

MR MORRIS: 23.3 and we've dealt with this in our written submission. We think that what we have is consistent with industry ..... at the moment. That it's consistent with the NES. The union's have looked at it differently than what's there at the moment.

PN543

THE VICE PRESIDENT: Yes.

PN544

MS GRAY: And Your Honour we didn't deal with it in our written submissions because it was one of the smaller issues. We just think that ours is a more balanced representation of what's required in the NES in any case. I mean, the proof just being the employer's draft restricting the proof, as an example, to a medical certificate, tends to infer a medical certificate, whereas by having both the statutory declaration and a medical certificate, in our draft, we think it's more balanced and is a requirement that a modern award must be simple to - be simple to understand. We take that to be for an employee reading it as well Your Honour.

PN545

MR MORRIS: There is an issue - - -

PN546

THE VICE PRESIDENT: And this will end up being in that general category
- sorry in the general category in the sense of it would have to be ..... for a standard form of words I would have thought.

PN547

MR MORRIS: We assume that that will be the case and there's actually a - I'll just raise this. There's a sort of a semantic question mark over the references in the second sentence and how it - what it means in the context of the first sentence. The first sentence says:

PN548

If the request by the employer the employee must prove to the employer's satisfaction that the absence was for the reason set out in the NES -

PN549

so that seems to give the employer an ability to dictate reasonably what it requires. The second sentence:

PN550

Such evidence may include a medical certificate provided by a medical practitioner -

PN551

is that just an example of what an employer may require or doest that enable an employee to say, "Well", take the union's example, "I'll provide you with a statutory declaration and that must suffice". If you follow what I mean?

PN552

THE VICE PRESIDENT: I know exactly what you mean. It may be that the medical certificate comes with - as one of those super lean ones that just says, "Illness" without further explanation and it may come from a doctor who's got a reputation for being shonky.

PN553

MR MORRIS: Correct.

PN554

THE VICE PRESIDENT: And depending upon the evidence that is available for everyone to - to reasonably taking the view that something more than that is required.

PN555

MR MORRIS: Yes. Now cashing out of personal carer's leave I think is in the same category. We've dealt with that in our written submission. If we just add this supplementary comment on this. We could understand if there was a proposition that the cashing out of personal leave should be subject to some maintenance of some minimum accrued entitlement - in the bank or balance being retained. In other words, it could be leave in excess of so many days or so many hours. Again we'd imagine this is something that the Full Bench will turn its mind to but the principle we think it should have been omitted, particularly where there are - there is an entitlement to an amount of personal and carer's leave in the coal mining industry, that is in excess of industry standards.

PN556

MS GRAY: We say the same thing Your Honour as we have alluded to in terms of annual leave, that that additional amount comes about because of the inherent nature of the industry and the fact that there is already a provision that employees with more than a certain bank when they are retrenched or retire or are retired by the employer because of ill health or die, are entitled to have it paid out, so it's again part of that industry scheme which we will go to the history of if necessary after the exposure draft in addition to what we've said in our written submissions.

PN557

THE VICE PRESIDENT: Why do you exclude the retirement in 23.6.9?

PN558

MS GRAY: The employer's have excluded retirement there. There was an expression - and we've covered this in our written submission - that reply, the effect of miner's pension legislation which no longer requires retirement at a particular age, so in order not to be specifying an age, we have modernised it to put in place retirement. The employers - and I'd leave it for Mr Morris - why they've chosen to leave that out.

PN559

MR MORRIS: I think this is something that there's an argument to include it. One of the issues with retirement is retirement reference in the past has been An age related retirement. If you simply put retirement in without that qualification, a person could retire at any time effectively.

PN560

THE VICE PRESIDENT: So retirement after the age of 55 or after the age of 65?

PN561

MR MORRIS: Or after the age of 60. I mean one could put in something of that sort at or above the age of 60. That would replicate - - -

PN562

THE VICE PRESIDENT: Would you be content with that? At or after the age of 60?

PN563

MS GRAY: Probably Your Honour, although it's my understanding that the miners pension legislation actually enabled people to retire after the age of 55 and required them to retire after the age of 60, so in effect they would get the payout of sick leave by action of the miners pension legislation if they retired after 55 but were required to retire after 60 so that the sick leave would have been payable in either of those circumstances by - - -

PN564

THE VICE PRESIDENT: So you would say at or after the age of 55. is that right?

PN565

MS GRAY: That would replicate the miner's pension legislation as I understand it Your Honour. It's not an area that I'm an expert on by any stretch but I'm sure that the employers will say otherwise if I'm wrong.

PN566

MR MORRIS: As I understand it, it used to refer - if you would look at the opening words, it says:

PN567

If employment is terminated by a retirement.

PN568

As I understand it, that meant under the coal and oil shale mine workers' pension legislation, which operated in this state at the age of 60 - yes that said:

PN569

Through the operation of the mine worker's pension legislation because of
age -

PN570

and that in fact brought - that came in to effect at the age of 60.

PN571

MR AICKEN: At the employers determination, as opposed to the employee's election.

PN572

MS GRAY: I can check that and advise otherwise Your Honour but if that's the case then 60 - - -

PN573

THE VICE PRESIDENT: This is a classic example. This would be - if it was in the draft appeared with the - with those words added that it was 60 - this would be a classic example of an opportunity for a post draft at consultation to say, "Here's how the legislation really operates at 55".

PN574

MS GRAY: Yes Your Honour.

PN575

THE VICE PRESIDENT: Have we dealt with the pressing domestic leave?

PN576

MR MORRIS: I think we have. I think we've said what we wanted to say in
our - - -

PN577

THE VICE PRESIDENT: Is that an anachronism from your perspective and it's a vital entitlement from your perspective?

PN578

MR MORRIS: It's not only an anachronism, it's just a - we would say inherently - the way it's predicated is - subject to the employment - the agreement of the employer or in the event of dispute determined through the dispute resolution procedure - it doesn't actually tell you anything about how the discretion is to be exercised. It sort of brings in, the umpire, sort of to say, "Yes you get the leave", or, "No you don't". We say that's not something you ought to put in a modern award, plus it's not just one day in a year or one day in - to determine the award. Its one day on each occasion and we just think it's had its day.

PN579

MS GRAY: And Your Honour I'd be - - -

PN580

MR MORRIS: Can I just say this? Reasonable employers will take account of the circumstances of employees.

PN581

THE VICE PRESIDENT: The award is supposed to be there to deal more particularly with the unreasonable employers.

PN582

MR MORRIS: Yes that is so Your Honour but we think it's time - - -

PN583

THE VICE PRESIDENT: So this could - theoretically there could be ten days a year - you could have ten occasions of pressing domestic - - -

PN584

MS GRAY: There could be Your Honour.

PN585

THE VICE PRESIDENT: - - - leave.

PN586

MS GRAY: Quite a lot of the information was put to the Full Bench in simplification on this and we've summarised it. We've extracted some of the Full Bench's statement in our written submission, but in our submission it really isn't a matter - an issue which has been abused, that it has covered the sort of circumstances which aren't covered by carer's leave. It's also covered some things which were covered by carer's leave, but it's covered such things as - - -

PN587

THE VICE PRESIDENT: So in the union's view, once you've exhausted your carer's leave, the fact of a sick child or spouse, which would ordinarily be the classic occasion of using carer's leave, could then be taken as a pressing domestic leave?

PN588

MS GRAY: Yes and that's some of the occasions that it's been used Your Honour. It's also been used to fight bush fires. It's been used because children have absconded or been arrested and the parent has had to attend the police station, things of that sort, so it's been a variety of circumstances that don't fall under necessarily one particular heading and there are again many, many decisions where it was challenged by employers as to whether or not an absence fell within this term, so if there's a body of decisions by the coal industry Tribunal which have determined what was reasonably pressing domestic leave and what was not.

PN589

THE VICE PRESIDENT: Do the employers contend - I ask this with trepidation - do the employers contend that this is being abused?

PN590

MR MORRIS: Sorry it is - - -

PN591

THE VICE PRESIDENT: Do the employers contend that this is being abused?

PN592

MR MORRIS: I don't think I can answer that. I would say just take the bush fire as opposed to the absconding child - the national employment standard of community service would cover that so this is - - -

PN593

THE VICE PRESIDENT: The absconding child?

PN594

MR MORRIS: Well why should the employer be employing - paying an employee in that circumstance?

PN595

MS GRAY: But the sort of examples I've given Your Honour are - - -

PN596

THE VICE PRESIDENT: Are just that - examples.

PN597

MS GRAY: - - - indicative of the fact that one employee would have to be the most unlucky person in the world to take two or three or five days of pressing domestic leave in a year. They would just have to you know, be incredibly unfortunate and it's really a circumstance that was initially put in when bereavement leave was put in to the award.

PN598

THE VICE PRESIDENT: Yes, 25.2.2?

PN599

MR MORRIS: Yes accident - - -

PN600

MS GRAY: We actually agreed with the employers that those words should go in Your Honour and that was omitted by mistake from our draft so those words in parentheses should be there.

PN601

MR MORRIS: Then to schedule A, the preambles and principles and so on, we think this is probably a matter of form. We don't think that - we're inclined to think that they're not machinery provisions for, or indeed necessary. I don't think I can say much more than that about those.

PN602

MR KENTISH: Your Honour we dealt with the difference between the union draft and the employer draft in our written submissions. Do you want me to go through that - - -

PN603

THE VICE PRESIDENT: No that's - - -

PN604

MS GRAY: And we've supported or adopted those submissions of the CEPU in that respect Your Honour.

PN605

MR MORRIS: If you go then to the CEPU - - -

PN606

THE VICE PRESIDENT: This is not one that you ..... Mr Morris?

PN607

MR MORRIS: No.

PN608

THE VICE PRESIDENT: It's really just it's unnecessary you say?

PN609

MR MORRIS: Yes.

PN610

THE VICE PRESIDENT: Rather than that you disagree with the - it's accuracy or the impression created by the words that are challenged?

PN611

MR MORRIS: Correct. The union's 4.6 is in the same category. The union's 4.7 is really a note between agreement but it's not something that - - -

PN612

THE VICE PRESIDENT: So you don't - I just want to make sure I understand the position clearly. You say about 4.6, it's not that you disagree that that's accurately stating the position that will obtain if your version of the award was embraced fully, but rather you say this is just unnecessary repetition of verbiage?

PN613

MR MORRIS: Yes.

PN614

THE VICE PRESIDENT: All right, 4.7.

PN615

MR MORRIS: That's a note as opposed to the substantive content and we agree with what's in it. We said something similar. It may just have appeared at a different place and the note in relation to deputies just before 4.8, we agree with. I think - we think we don't need it.

PN616

THE VICE PRESIDENT: You aren't sure about what your position is on that note at the moment?

PN617

MR MORRIS: Yes.

PN618

MS GRAY: Your Honour the deputies awards have been in effect completely subsumed in to the P&E provisions. Any differences that retained are the COA agreed not to push for. The only provision that the COA wanted in being subsumed in to a modern coal mining award was this particular provision. What it does is define their members in the same way as is already defined in the staff award and it also simply has a transitional step if you like, in the second sentence identifying the two awards that this classification moved from and the level in the generic classification structure that they should go in to. No it's my understanding that the employees don't disagree with the level but they don't think it's necessary.

PN619

THE VICE PRESIDENT: The only - the true effect of this note is to remove any debate that a deputy is a mine worker specialist, for the purposes of classification.

PN620

MS GRAY: Yes Your Honour.

PN621

MR MORRIS: Can we answer that Your Honour.?

PN622

THE VICE PRESIDENT: Yes Mr Gillespie.

PN623

MR GILLESPIE: Do I understand the Commissioner is that - Your Honour rather - is that that provision does something that the current award does not do. Deputies are not necessarily automatically in a specialised area. They could be in the advanced area?

PN624

MS GRAY: Now is that an appointed deputy, or is that somebody who had simply got a third class certificate of - - -

PN625

MR GILLESPIE: No it's at the point - because you can have different levels and if - - -

PN626

MS GRAY: Your Honour I'd be a little concerned about Mr Gillespie putting the position on behalf of the employer, because this is relevant to a deputy in New South Wales and Mr Gillespie represents the Queensland. Our area of deputies exist but in terms of - this is a transitional thing for essentially previous COA members. It restricts it to New South Wales and it makes the reference to the two deputies of laws.

PN627

THE VICE PRESIDENT: So the classification that's moving is the deputy New South Wales only classification.

PN628

MS GRAY: Yes.

PN629

THE VICE PRESIDENT: The deputy in New South Wales.

PN630

MS GRAY: And the two award codes ties it again to that.

PN631

THE VICE PRESIDENT: Mr Morris, can I suggest that his is a tiny matter that can be checked by those that instruct you and in due course you can just confirm whether you agree that this doesn't add anything or alternatively, confirm that you contest the accuracy of the not e.

PN632

MR MORRIS: Yes as I - - -

PN633

THE VICE PRESIDENT: It will either be - you'll either view it as accurate or not and if it's not then that's obviously something we'll have to get to the bottom of.

PN634

MR MORRIS: Yes I'll certainly do that. As I am instructed ..... just now, a deputy will fit where the deputy fits against the classification structure. That's the case in Queensland and the difference in New South Wales is there has been a separate deputy's and ..... award so it's not a case that everyone is necessarily a specialised mine worker. It will depend on the proper application of the competency qualifications for the classification, so in fact you don't need - we would say you don't need the note at all. The note is misleading and you don't need it because classification structure looks after it.

PN635

MS GRAY: Your Honour the only other thing I'd note and we'll do some further research on this because I'm relying on the instructions of the COA in respect of this particular one, is that the COA also sought to retain certain allowances which came from its two awards referred to there which pertained only to a deputy and by going in to the general classification structure, the minimum rate, and we know how far that is from the real rates - but the minimum rates would have been - are about 70 or $80 higher in the P&E than they were in the COA rates.

PN636

So the deputies backed off on pushing for their deputies specific allowances to go in to the transitional provisions for five year period on the basis that they came in at that level and were compensated. If now, the employees are saying that they should come in at either, mine worker advanced or specialised and that may well change the COA's position on the allowances and I'd be seeking instructions from that organisation because they're not here to represent themselves.

PN637

THE VICE PRESIDENT: This is the sort of clean up issue that could occur on the post drafting consultation irrespective of what appears in the draft ..... you've all agreed that that's so.

PN638

MR MORRIS: Thank you and in the union's ..... training plans and so forth - say that's unnecessary verbiage these days and indeed not be universally in application at the moment. In other words, that would not reflect - - -

PN639

THE VICE PRESIDENT: Do you say that that's in - you agree that that's in the award - in the relevant award at the moment - - -

PN640

MR MORRIS: Yes it's in the production - - -

PN641

THE VICE PRESIDENT: - - - but no longer necessary or appropriate.

PN642

MR MORRIS: Correct.

PN643

MR KENTISH: Your Honour we say that it should be included on the basis that it's incidental in the essentials of the career structure for its production and for the ..... employees ..... references ..... it's supported by ..... go in to consultation and if Your Honour ..... we say that it would be consistent with the Commission's obligation to regard the .....

PN644

THE VICE PRESIDENT: All right.

PN645

MS GRAY: We support and adopt the submissions of the CEPU. Both the written ones and the ones made today on that point thank you Your Honour.

PN646

MR MORRIS: Can I - we put in schedule B for staff, that's classifications and the ..... schedule it is ..... in the CFMEU's ..... that's where the rates of pay and cash ..... now as a result of some decisions in 2003 and 2004 by Commissioner Bacon there was a regime prescribed to translate all staff under the staffing award, to a 35 hour week with the - the consequence of that has for annual leave, for sick leave, for overtime, for other things that depend on the standard hours prescription, essentially the rules for this translation were, as I say, set by Commissioner Bacon. It provided for people to transition to a 35 hour week when their minimum rate, which was subject to indexation or a general wage rate adjustments by the Commission, became equal to the total payment prescribed. In other words there was a residual - there was a minimum rate, a residual component and together they made up the total.

PN647

When the minimum rate equalled the total payment and therefore the residual payment was reduced to zero, anything then not on a 35 hour week, went on to a 35 week for all purposes. That transition process has had one Commission wage adjustment I think at least, in 2005 and two Fair Pay Commission determinations, 06 and 07. In October this year, the most recent determination by the Fair Pay Commission would take effect so another adjustment and I think we're all travelling under the assumption that there will be a further determination in 2009. Now - - -

PN648

THE VICE PRESIDENT: So that by the time 2010 comes around and these awards commence operating there will be no residual left?

PN649

MR MORRIS: As best we can predict it, that's correct. If there are any, it will be very small and we suspect more likely there won't be any - there may not be any after the 2008 Your Honour. I think there might be - - -

PN650

THE VICE PRESIDENT: Rather than - can I just maybe put a question from the union's side. I just don't see what the practical utility of trying to incorporate in to ..... these transitional arrangements is, because we all agree that nobody gets paid ..... any more, that everybody's getting paid three to four times ..... so how can the transitional arrangements in relation to moving to the 35 hour week and the payments you do or don't get ..... have the slightest impact on anybody?

PN651

MS GRAY: This is an issue that ..... submission on this week. We have nothing to say about it Your Honour.

PN652

MR MORRIS: Before there's more answers, could I just say - and we've had some conversation about this today. What we would propose that the parties reflect on the fact that we are talking about an award and rates of pay that will take effect on 1 January 2010.

PN653

THE VICE PRESIDENT: Presumably if we come to some agreement?

PN654

MR MORRIS: Correct. Now, it may be that some facilitation by the Commission would be of benefit in us doing that - - -

PN655

THE VICE PRESIDENT: But Mr Morris I just - as I sit here today with the knowledge of have of the industry - perhaps not as much as anyone else at the Bar table but there's nobody employed on your terms who is covered by this - no one.

PN656

MR MORRIS: There will be some. There will be some. In the clerical ranks for example. I'm instructed there will be people who will be paid the highest and closest - - -

PN657

THE VICE PRESIDENT: To the award rate?

PN658

MR MORRIS: Correct.

PN659

MS ROOKE: And I would just like to confirm that. That was one of the main issues I wanted to raise that - - -

PN660

THE VICE PRESIDENT: Well I don't know Ms Rooke - well I've been operating under a misapprehension. If there are people working through a couple of these awards, who may actually have their take home pay affected then it's still an issue.

PN661

MS ROOKE: Yes in the Queensland Clerk classification s there are still some that are being paid on award rates. That's my understanding and who will be directly affected by any moves to not allow the ..... to take place. I take on board the points that the employers have raised about - - -

PN662

THE VICE PRESIDENT: Why can't we just treat the transition as done? I mean the employers are obviously not going to be dying in the ditch over paying two or three dollars a week more to somebody.

PN663

MR MORRIS: What we would advocate is that we do as Your Honour suggested, that we - subject to you know, testing that nobody really is disadvantaged - that we treat the transition to the 35 hour week as complete for all classifications. It's complete for most already - and the parties also look at whether we can bring about a single set of classifications and rates as opposed to the New South Wales/Tasmania column if you like and the Queensland column, where there are some differences. Some of the terminology is different and the amounts of money are different in some instances by very small amounts, in others slightly more, but we actually think whilst it might look difficult, it's not a reason not to try and do it if we've got some time and we should have some time in which to do that and therefore not burden a new award with something that is going to be out of date almost before it's published.

PN664

THE VICE PRESIDENT: Yes. That's desirable. Are you content with that course Ms Rooke?

PN665

MS ROOKE: In other words, you're going to have an opportunity argue for its inclusion if at the end of the day you were persuaded it's necessary, but if you can come to some agreement with Mr Morris's clients for a schedule that you can live with then so much the better.

PN666

MS ROOKE: We're certainly happy to have discussions with them regarding that. We do remain concerned though about the transition to the 35 hour week, not being able to take its full course in the process set by Commissioner Bacon in the award's simplification.

PN667

THE VICE PRESIDENT: But by the time 2010 comes around, there must - in monetary terms it must represent a very small amount if any employee who is still affected by it.

PN668

MS ROOKE: Well we're not convinced of that. I agree that of course there will be more increases and the - the extent to which our members will be affected will diminish to an extent, but we're not convinced at this point that there will be no disadvantage and we also submit that - well more of a question - is it actually the appropriate role of the Commission in this award organisation process, to alter the minimum rate to reclassification. That's essentially what would be - what the Commission would be doing through an automatic conversion of employees to the 35 hours and - - -

PN669

THE VICE PRESIDENT: But what Mr Morris is potentially proposing, that they'll go up not down.

PN670

MS ROOKE: If the transition actually is completed before 2010, but I'm suggesting that for this point - - -

PN671

THE VICE PRESIDENT: No Ms Rooke, the Commission, when it makes the modern award, has got to insert minimum rates. It doesn't have to insert the existing minimum rates. In the vast majority of cases it will be the existing minimum rates as adjusted to take in account of the 2009 - their pay commission determination, but where there are particular circumstances that justify some adjustment - provided it's not prejudicing employees and the employers are happy for that to occur - I can't see any reason as a matter of power why it can't occur.

PN672

MS ROOKE: Sure but I'm - - -

PN673

THE VICE PRESIDENT: Anyway, what Mr Morris is offering as I understand it, is to have a look on the basis that no employee will be prejudiced but to see whether or not this whole transitional issue can just be dispensed with by the employers agreeing to rates as though the transition has been completed. In which case I would have thought your members are better off.

PN674

MS ROOKE: I'm communicating the investment position as it stands currently and I concede, indicating that we're willing to participate in further discussions with the employer group. Our position at this point is that we're not convinced that our members won't be disadvantaged but obviously we're willing to continue discussions and if we can be convinced that that is the case, which obviously Your Honour you seem to be convinced of - - -

PN675

THE VICE PRESIDENT: No, I'm not convinced, I'm just going on Mr Morris's assurances. He's very trustworthy.

PN676

MR AICKEN: I'm writing that down now.

PN677

MS GRAY: I'm not even going to disagree with that one.

PN678

MR MORRIS: I'm being instructed.

PN679

THE VICE PRESIDENT: The point is that Mr Morris is saying, that let's have a look at it and if we can reach an agreement about treating the transition as having been completed on a basis it's not going to see any of your members worse off (we explain clearly some slight increase cost to employers we'll see if we're prepared to wear that) then we can agree to do that, dispense with the need for the transitional arrangements with respect to the move from 38 to 35 hours a week and your members are not worse off. I mean, it's all upside, no downside from your perspective, if it looks - if you think it's - that they've got their mathematics wrong or they've overlooked something and you're prejudiced, then you can say so and seek to have the transitional arrangements, included in this modern award.

PN680

MS ROOKE: At this point the parties haven't unnecessarily agreed on what are the current rates in place for the different classifications. There is a bit of dispute there. It appears they may have the same calculations which were taken in to account - the increases that have been set by the Fair Pay Conditions so we - my understanding is that we actually have a different position on which groups have actually made the transition to the 35 hour week or which groups have made the transition in according to the ..... decision.

PN681

THE VICE PRESIDENT: You're not - correct me if I'm wrong - you're not trying to seek to preserve as long as possible the obligation of people to work 38 hours a work, you're more than happy for them to be working 35 - you just don't want to see them financially prejudiced?

PN682

MS ROOKE: That's correct. A process was set down. The process which w believe will ensure that our members aren't disadvantaged and our position at this point is to see that process continue until it is complete, however of course, our main priority in insisting that in requesting the - our pretension of those transitional positions is to ensure that our members aren't disadvantaged, so of course if we can be convinced of that then that really would end it.

PN683

THE VICE PRESIDENT: Does that mean we're done?

PN684

MR MORRIS: I think so. I should say our conclusion about the transition being largely complete is using the appeasement as calculations of the rates of pay, there's a little issue as to how you translate the Fair Pay Conditions determination it's in a 35 hour week context which is not something that is our - - -

PN685

THE VICE PRESIDENT: No, and it's surely a matter of sense or fractions of sense?

PN686

MR MORRIS: Yes, so I think if we're practical and sort of look at the reality - hopefully this is something we can - - -

PN687

THE VICE PRESIDENT: How many employees are we talking about? Did you have a - Ms Rooke do you have any - even just an impressionistic or intuitive sense? I'd imagine that it's very small. We're talking - - -

PN688

MS ROOKE: I can't give any indication I'm sorry of numbers, we're talking about Queensland where I don't have any hands on experience - - -

PN689

THE VICE PRESIDENT: Just in these ..... clerical rates.

PN690

MS ROOKE: The classifications that I understand, that haven't made the transition to the 35 hour work and this may not be something that's agreed with Mr Gillespie - is Queensland classifications B, C, D, E, F and N, those are the classifications that are currently in the ..... staff award, so in terms of numbers that are in those consultations I can't say at this point.

PN691

MR MORRIS: If you take a snapshot right now, which means there's two determinations to go between now and 1 January 2010 is B, C, D, E and N is right at the - the residual amount of the group B is $5.99 and for group C it's $15.49 and that's without the $21 that comes from the determination from - - -

PN692

THE VICE PRESIDENT: Let alone the 2009 determination, because all of the modern awards are going to have to be varied immediately before the commencement of 2010 to pick up the 2009 minimum wage review and you may be up for a whole lot of other error corrections and the like.

PN693

MR MORRIS: Yes. Your Honour just one last thing. The schedules filed on behalf of the unions have a schedule H which has staff specific differences. We've really only averted to those on the way through. For example, they provide the staff a casual employment category with rules and temporary employment and on that I must say is rather ..... is termination by the employee in Queensland at period of notice. On our approach you would not need a schedule H even though no exceptional circumstances needing to be made in that.

PN694

MS ROOKE: I would just like to say on that, that in the current union's proposal the casual condition is actually different to the casuals provision that is proposed in the employer's modern award. The staff condition has a - sets out as Ms Gray ..... and you explained the staff provision - the staff casual provision actually defines when casuals will be used and ..... restrictions.

PN695

MR MORRIS: We don't accept the restrictions. We accept that there are
- they're different. We covered that when we were talking about casual employment.

PN696

THE VICE PRESIDENT: Nothing else?

PN697

MS ROOKE: Yes, I actually haven't spoken on ..... coverage yet and there may have been a mistake on my part but I understood when you were discussing - - -

PN698

THE VICE PRESIDENT: No, that's all right please - - -

PN699

MS ROOKE: - - - to be a discussion that's well, being led by the employees ..... to be responding and I believe the - - -

PN700

THE VICE PRESIDENT: That's all right, if you've got things you want to say that's - now is the time to say it.

PN701

MS ROOKE: At this late stage and given that this condition that we've cove red in depth in our written submissions, I don't intend to go in to a lot of detail, other than to, I guess raise a general point about whether ..... can ..... proposal and the employee's proposal that the scope of written clauses would actually exclude some of - some employees on staff who currently are in receipt of the coal mining industry standards from coverage of the modern award. We're specifically - specifically am talking about tour members who work in the town offices and we're concerned that as the scope and coverage clauses are proposed by the unions and the employers, that it's not clear that those employees that are - particularly white collar employees that are engaged in town offices - it's not clear that they would be covered by the coal mining industry modern award and we're concerned also about the - - -

PN702

THE VICE PRESIDENT: Can I just ask you about your understanding of the fact on the ground now? Some - am I correct in saying that some white collar staff employed by coal mining companies, don't have the benefit of coal mining industry superior conditions, nor monetary conditions, annual leave and all that, but some do?

PN703

MS ROOKE: Yes that's correct.

PN704

THE VICE PRESIDENT: And it's not a case of there being a neat and simple distinction between head office and town offices?

PN705

MS ROOKE: Yes that's our understanding.

PN706

THE VICE PRESIDENT: And you're saying the employer proposal embraced by the CFMEU would carve out of the coal industry modern award all of the town office white collar employees and therefore some town office white collar employees who presently have the benefit of the coal industry conditions, would lose them?

PN707

MS ROOKE: Yes we're concerned that it would have that effect on them and that's why we have sought amendments to the union's proposed modern award of the scope and coverage clause which would see town offices being significantly provided for. We are also - - -

PN708

THE VICE PRESIDENT: Are you able to say anything about the extent of this problem?

PN709

MS ROOKE: I'm sorry, not I'm not actually. I can't give you any indication of how many are in receipt of coal mine industry's ..... currently and how many are not.

PN710

THE VICE PRESIDENT: Mr Gillespie do you know anything about this? Or Mr Wild, do you know anything about it?

PN711

MR GILLESPIE: I'm not aware of anybody in the ..... staff condition - or coal mining in terms of the ..... as a result of our condition, so anybody that's in a town office and getting those conditions would not change.

PN712

MR AICKEN: We say they're captured by the clauses as they're written. They're designed - they were designed not to exclude the people who are currently included and they're designed to exclude people who currently aren't.

PN713

THE VICE PRESIDENT: I think Ms Rooke, prima facie if you've got members who are presently in receipt - presently properly in receipt of coal industry terms of conditions who would on the proposed scope clauses lose them, that's a very significant matter and it would prima facie require an adjustment within the scope of all this, so that those employees weren't worse off. What seems to be emerging at the moment is the need to actually identify that this is not just a theoretical problem, but actually a practical problem. Perhaps that's something you can do and that we can deal with tin the post drafting consultation if necessary. In other words, the clause could be drafted as it were as between the CFMEU and the employers in terms of debate but the statement of reasons that comes, or the statement that comes with the publication of the draft award could note that there's still an outstanding issue in relation to the members you've identified which will be addressed in the post draft in consultation in the event that it's still perceived by you to be a problem.

PN714

MS ROOKE: I also am happy to provide - or to supplement what I'm saying today with some additional information next week, indicating where there is a specific problem and - well not necessarily a problem currently - but where there would be a problem, obviously at the moment I'm not giving you details of where there is a situation where there are some town office employees that are in receipt of the coal mining conditions and where there are some that are currently not in receipt of coal mining industry conditions, but there certainly exists such a place. I'm not aware of the details today but I certainly can supplement what I'm saying, in information next week. As for providing you with evidence of how many people who are likely to be - - -

PN715

THE VICE PRESIDENT: It's just I'm personally very disinclined - I can't speak for other members of the Bench - to include what will be complicated transitional arrangements in respect of something which may in fact not be of a genuine problem as a matter of reality on the ground. If it is a reality on the ground - a genuine problem that has to be addressed.

PN716

MS GRAY: Your Honour one final thing. The CFMEU's draft and the employer's draft isn't exactly the same in that respect. Ours is limited to an exclusion consistent with our attitude that only examples of inclusions and exclusions which are black and white should be put in the scope. We have the work of employees employed in head offices, of employees engaged in the coal mining industry as an exclusion and the employers add to that, and corporate administration offices, and that may include some town offices which might include some who are in and some who are out, so that's why we haven't made that choice - have replicated the employer's wording. We also didn't want to go as far as Ms Rooke did in hers, but can I say that the ASU's submission supported the CFMEU wording in that respect.

PN717

THE VICE PRESIDENT: And the ASU has the principle coverage in respect of the clerical employees?

PN718

MS GRAY: Non coal mining industry clerks or admin employees.

PN719

THE VICE PRESIDENT: Ms Rooke, did you finish what you wanted to say?

PN720

MS ROOKE: I just wanted to say one more thing and that is both the unions and the CFMEU have made reference to - referred to the decision number 20 of 80, so this is the coal industry tribunal decision, or what's referred to as the head office case anecdotally - we take a general objection to the inclusion of a note which makes reference to that decision or really to any other decision of the coal industry tribunal. We don't think that's appropriate for a modern award and I wanted to make a general point as well, that we contend that there is no consistent and established use of the expression, coal mining industry arising from the decisions of the coal industry tribunal or the AIRC or the High Court that supports the intention of the white collar workers in towns removed from the proximity of mind sight cannot be considered to be formally included in the coal mining industry.

PN721

THE VICE PRESIDENT: Irrespective of how this is determined, it will be a matter of focus in the post draft of consultation it seems to me because it doesn't matter how the clause is drafted. Unless this is not a problem on the ground. If it is a problem on the ground then I don't see how it can be drafted without one or other party wanting to say, no we need to revisit the arguments and let's actually go through the case of what's genuinely ascertained what the position is. I mean, prima facie, the people who work in the administration of a business are as much a part of the business and therefore as much a part of the industry of the business as the operative workers - the production workers or the training workers. In the coal mining industry there may be particular considerations to say that the scope should be drawn to exclude them, that they should be covered just by the private sector occupational but that, consistent with the provisional indication of the Full Bench is a course that's open to parties that the private sector, clerical occupation award is not there to cover the clerical work generally but there to cover it when it's not appropriately included in the industry of the employer industry.

PN722

MR MORRIS: Your Honour can I just say, if there is some instance of the kind that Ms Rooke is saying they're concerned about, we're more than happy to know about it and have a discussion about it.

PN723

THE VICE PRESIDENT: I would have though that your clients - that the amount of money that's involved here would have to be so small in totality in terms of the total amount of dispute, no matter how long you let the time period that you're analysing go - would be so small that they would be more than happy to say with a bit of assurance that people are going to get the same money that they would have got under those old arrangements. It may be possible to deal with it in a transitional way of just having a simple, narrative obligation imposed on the employers not to pay less than what would have been payable if the transitional arrangements were to continue.

PN724

MR MORRIS: Quite so Your Honour, quite so and you've got an issue of current employees versus new employees which we haven't sort of touched on at all when it comes to transition - - -

PN725

THE VICE PRESIDENT: Well Ms Rooke does that - what's your reaction to that? That instead of trying to specify the rates, that there's just a narrative savings clause that simply recites that the employer is not to pay less than the amount that - in respect of this class of employees - they're not to ..... what would have been payable under the old arrangements, assuming the adjustments that occurred post the new regimes, the minimum wages have occurred under the old regime.

PN726

MS ROOKE: Yes it's certainly a potential remedy. I've yet to take - obviously I can't comment more on that at this stage. I've made my instructions clear - - -

PN727

THE VICE PRESIDENT: Well are we done? Thank you. Very good. The Commission is adjourned.

<ADJOURNED ACCORDINGLY [4.05PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CMI1 POSITION COMPARISON DOCUMENT PN113
EXHIBIT #CMI2 SET OF DEFINITIONS RELEVANT TO COAL SAMPLERS PN115