C2008/144, Transcript of Proceedings [2008] AIRCTrans 604 (8 October 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17683-1

COMMISSIONER ROBERTS

C2008/144

s.553(1) - Application for variation of award (maintain min. safety et entitlements)
CPSU
and
New South Wales Minerals Council on behalf of Xtrata Coal New South Wales and BHP Illawahra Collieries
(C2008/144)

SYDNEY

11.39AM, THURSDAY, 25 SEPTEMBER 2008

PN1

MS J. GRAY: May it please the Commission, Ms Gray for the CFMEU.

PN2

THE COMMISSIONER: Long time no see, Ms Gray.

PN3

MS GRAY: Indeed.

PN4

MS J. LEE: If the Commission pleases, Ms Lee for Australian Business Industrial.

PN5

MR M. AICKEN: Aicken, from the New South Wales Minerals Council on behalf of Xtrata Coal New South Wales and BHP Illawahra Collieries.

PN6

THE COMMISSIONER: You have any authority for somebody else don't you?

PN7

MR AICKEN: And I do indeed, I am here on behalf of Mr Gillespie.

PN8

THE COMMISSIONER: For which I have an authority in the file and I note the non-appearance of the AMWU but we will come to all of that in relation to a competing draft order which has been filed. Ms Gray.

PN9

MS GRAY: Thank you, Mr Commissioner. Mr Commissioner, I will start first, seeing as we have just dealt with appearances, I received an email this morning from Mr Kentish, national industrial officer of the CEPU, was this copied to the Commission? No? It's simply to advise that they do not object to the terms of the CFMEU's proposed draft, Mr Commissioner, and as you can see from the bottom of that they have been in receipt of the material filed by the AMWU as a consequence of that.

PN10

THE COMMISSIONER: Yes.

PN11

MS GRAY: Mr Commissioner, we have an amended draft order which I did send in by email yesterday, but I have a hard copy if you would like.

PN12

THE COMMISSIONER: Pass it up, it will save me searching through this paperwork.

PN13

MS GRAY: And also a proposed exhibit showing increases calculated. Mr Commissioner, the union served the parties in accordance with a substituted service order issued by the Commission on 12 September. I did file with the Registry some days ago a statement of service, 22 September I filed that. Do you have that Mr Commissioner?

PN14

THE COMMISSIONER: Yes, I do.

PN15

MS GRAY: As a result of that service we have had discussions with various parties to the award, certainly the employees represented by Mr Aicken in respect of the New South Wales Mineral Council and in respect to Gillespie Consulting, we understand to be in consent in terms of the amended draft order in this matter. The amended draft order we would seek, Mr Commissioner, we would seek to tender in substitution for the draft order lodged, I think, on 22 September.

PN16

THE COMMISSIONER: I take it I am only referring to the amended draft order dated 25 September 2008.

PN17

MS GRAY: Thank you, Mr Commissioner. Mr Commissioner, the vast majority of allowances in this pre-reform award are related to disability or skill based allowances. The only one which is otherwise based is the meal allowance.

PN18

THE COMMISSIONER: If you'll excuse my ignorance for a moment, it's normal in this award is it not to round?

PN19

MS GRAY: Not to - - -

PN20

THE COMMISSIONER: Round.

PN21

MS GRAY: What, to the closest five or 10 cents?

PN22

THE COMMISSIONER: Five or 10 cents, yes.

PN23

MS GRAY: It is except in respect to the meal allowance where the manner in which it has been rounded as long as I know of, Mr Commissioner, is to the nearest 10 cents. The rest of them, there are various industry historical matters of probably very little interest, but there are different ways of coming to the appropriate increase in this award than maybe in others. This depends on the allowance, Mr Commissioner, and I will do it by way of example. The washery allowance is for a shift. The minimum payment is based on half a shift.

PN24

THE COMMISSIONER: That's what intrigued me, yes.

PN25

MS GRAY: So we add the increase to the shift payment and simply divide by two, rather than adding the increase to the minimum payment. Similarly with the Longwall allowance, New South Wales only, it is a weekly amount. There is a daily amount which is arrived at - and this is in the second page of the proposed exhibit, Mr Commissioner, under the sub-heading of sub-clause 21.2. There is a weekly amount and that is the amount the increase of the allowance is applied to. The daily is arrived at by dividing the weekly amount once increased by five, and the minimum payment by dividing the daily amount by two. So they are some of the differences in method of calculation that have been consistently applied by the parties over many years.

PN26

THE COMMISSIONER: I thank you for the comparison document, it's very helpful.

PN27

MS GRAY: Thank you, Mr Commissioner. Mr Commissioner, we note that all parties served, with the exception of the AMWU, have either consented to the application as seen in the amended draft order or have not objected to it. In terms of the AMWU, Mr Commissioner, we would say that this application is to vary a pre-reform award. We are acting under - or seeking the Commission act in accordance with section 553(4) of which in paragraph A requires the Commission to vary the award only if it is satisfied that the variation is essential for the maintenance of minimum safety net entitlements, and sub-clause b, all of the following conditions are met, (i) of which is,

PN28

The award as varied would not be inconsistent with decisions of the AFPC.

PN29

Mr Commissioner, on this occasion and on the last occasion when the award was varied in respect to allowances, we did take the AFPC pay scales and use the increase on the hourly amount as a result of that to apply to the award increases, with the exception of meal allowance which is tied to the take away food component of the CPI increase. The award was last varied in respect to allowances in PR975677 by a Full Bench of the Commission, 22 January 2007 but with an operative date of 1 December 2006. The union didn’t make an application to vary allowances last time, Mr Commissioner, because in our experience sometimes a small amount and rounding even to a cent has actually meant that some of the increase is lost, so we left it for two years, as we have done sometimes in the past to allow the amount to build up and then make the application.

PN30

Mr Commissioner, we say that any rates which are in a transitional award for the production, engineering and coal mining industry should not be taken into account and would be inconsistent with the AFPC amount which we have used and that explains the differences, although only in matters of cents between our proposed amended draft order and that proposed by the metal workers. There is no application to vary the transitional award as opposed to the pre-reform and we have never made an application to vary that since it came into existence Mr Commissioner, that is because we are unaware of any employer bound by the award being an excluded employer, in other words not being of course a constitutional corporation.

PN31

That is the position as we know it, Mr Commissioner, so we have simply sought to vary allowances in the pre-reform award in accordance with the appropriate provisions of the Act and in accordance with the AFPC decision. I am happy to answer any questions which the submissions of either Mr Gillespie or the metal workers have raised in your mind, Mr Commissioner, but we believe that the application in terms of the amended draft order is the appropriate result from this application to vary the pre-reform award, and we would seek that it be done in those terms from the first pay period to commence on and after 1 October 2008, and subject to any questions, Mr Commissioner, they are the submissions of the applicant union.

PN32

THE COMMISSIONER: Given that there are various documents floating around the file, various draft orders, I take it you are tendering the two documents that you handed up?

PN33

MS GRAY: Yes, thank you Mr Commissioner.

EXHIBIT #CFMEU1 - CFMEU AMENDED DRAFT ORDER DATED 25/09/2008
EXHIBIT #CFMEU2 - EXPLANATORY DOCUMENT SHOWING INCREASES CALCULATED OVER THE YEARS 2006/2007/2008

PN34

THE COMMISSIONER: It will just make better for ease of reference.

PN35

MS GRAY: Thank you, Mr Commissioner.

PN36

THE COMMISSIONER: Who is next?

PN37

MS LEE: Thank you, Commissioner. Australian Business Industrial is happily in a position to consent to the making of the variation to the award in the terms of exhibit CFMEU1, if the Commission pleases.

PN38

THE COMMISSIONER: Mr Aicken.

PN39

MR AICKEN: On behalf of those organisations that I represent we too are in a position to consent to the application and endorse the submissions of Ms Gray in relation to this matter. I should note only that there has been hopefully on the Commission's file a short submission made by Mr Graham Gillespie on behalf of the organisations that he represents.

PN40

THE COMMISSIONER: Yes.

PN41

MR AICKEN: I believe it arrived yesterday and I believe that also supplies additional information to the Commission in support of Ms Grey's earlier submissions and - - -

PN42

THE COMMISSIONER: I've just read it as being supportive of the CFMEU application.

PN43

MR AICKEN: Indeed it is, indeed it is, and that is our submission and we consent to the application going forward.

PN44

THE COMMISSIONER: I take it your submission to the three parties before me would be that the AMWU's approach is misconceived?

PN45

MS GRAY: Yes, that's the case, Mr Commissioner.

PN46

MS LEE: Yes, Commissioner.

PN47

MR AICKEN: Yes, Commissioner.

PN48

THE COMMISSIONER: Is there any historical precedent in this award for the approach - it's a Globo question - the approach being adopted by the AMWU? I take it it's a no?

PN49

MS GRAY: I am unaware of any such precedent, Mr Commissioner. I think essentially because it does tend to confuse the transitional award with the pre-reform award structure within the Act.

PN50

THE COMMISSIONER: Right.

PN51

MS LEE: I am similarly unaware of any precedent.

PN52

MR AICKEN: As am I.

PN53

THE COMMISSIONER: Yes. I wish to note the short history of this matter, the very brief history. The AMWU did at one stage in the last 48 hours seek an adjournment of this matter. That adjournment was denied and the metalworkers were told they should turn up today to address any concerns or supply a written submission. A written submission of a kind has been received but no appearance has been made, which I find disappointing, given that they wish to take a different approach to the applicant union which is in consent with the employers. I find no merit in the AMWU's submissions. I accept the submissions of Ms Grey, together with the support of the employer bodies and I note the consent of the CEPU to the amended draft order as sought by the CFMEU. The award will be varied as set out in exhibit CFMEU1 and that variation will take effect from the beginning of the first pay period to commence on or after 1 October 2008. Should it subsequently arise that there is some error in the figures, the matter can be re-opened, otherwise it's finished. We are adjourned.

<ADJOURNED ACCORDINGLY [11.55AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CFMEU1 - CFMEU AMENDED DRAFT ORDER DATED 25/09/2008 PN33
EXHIBIT #CFMEU2 - EXPLANATORY DOCUMENT SHOWING INCREASES CALCULATED OVER THE YEARS 2006/2007/2008 PN33