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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1047722-1
COMMISSIONER ROBERTS
C2012/6205
s.739 - Application to deal with a dispute
Construction, Forestry, Mining and Energy Union
and
Mt Arthur Coal Pty Ltd
(C2012/6205)
Mt Arthur Coal Enterprise Agreement 2011
(ODN AG2011/1004)
[AE885861 Print PR509945]]
Sydney
10.04AM, TUESDAY, 26 MARCH 2013
Continued from 13/03/2013
Reserved for Decision
PN2042
THE COMMISSIONER: Good morning. Where are we up to.
PN2043
MR ENDACOTT: Our final submissions.
PN2044
THE COMMISSIONER: Of course we are. Mr Endacott.
PN2045
MR ENDACOTT: Thank you, Commissioner. There were directions to file an outline of submissions in the proceedings, and each of the parties complied with that direction. It has been marked as evidence - the applicant's outline of submissions has been marked CFMEU25, and certainly the submissions I make today will follow generally that outline. Also in opening, I'd like to say that there has been evidence provided by 23 witnesses for the applicant, the vast majority of those being 17. The evidence was not sworn to because there was no need. It was accepted by the parties and - for want of a better description - tendered in evidence without objection.
PN2046
Each of them remained available for cross-examination should that have been necessary, and we say that the evidence that has been presented by the applicant and each of the affected employees has been given from those that have given evidence before this Commission truthful, reliable, dependable and that in determining the issues that we ask in resolution of this dispute and in accordance with the disputes resolution mechanisms contained within the industrial instrument, we ask the Commission to place weight on that evidence as being truthful, as being reliable and as being reflective of the factual matrix that is the - - -
PN2047
THE COMMISSIONER: You forgot "dependable".
PN2048
MR ENDACOTT: I beg your pardon.
PN2049
THE COMMISSIONER: You forgot "dependable".
PN2050
MR ENDACOTT: Dependable, yes, and reflective of the factual matrix that is in existence around this dispute. Certainly we say that the Commission would have observed that from the applicant's witnesses that appeared before it, but it goes without saying, we say, for those that gave evidence that weren't required to be cross-examined, that it can just be accepted as being the truth, dependable and reliable, Commissioner. Now, it's not my intention during these submissions to transverse each aspect of the evidence. The Commission sat through two days of evidence and listened to it, and the Commission would have had the opportunity - or will take the opportunity in deciding the matter - to read thoroughly the statements that have been tendered without objection and marked in evidence.
PN2051
But I will go to make submissions about what we say falls from the evidence and how that supports the applicant's position. But I will start by visiting the jurisdictional basis, both that gives rise to the dispute - and we say the jurisdictional basis which is relevant for resolution of this dispute are, firstly, I draw your attention to the industrial instrument that provides under clause 20, sub-clause (2) - and this is JD1 to exhibit 19, which is - - -
PN2052
THE COMMISSIONER: Sorry. What clause?
PN2053
MR ENDACOTT: It's clause 20.
PN2054
THE COMMISSIONER: I've got the - - -
PN2055
MR ENDACOTT: I just draw your attention to sub-clause (e).
PN2056
THE COMMISSIONER: Yes.
PN2057
MR ENDACOTT: Where it says:
PN2058
It shall be referred as a last resort by either party to the appropriate industrial authority for conciliation, and if the matter remains unresolved, arbitration. The parties involved in this dispute or grievance will accept the result.
PN2059
I draw your attention just formally that this Commission is empowered to resolve the dispute - - -
PN2060
THE COMMISSIONER: I don't think it's controversial, Mr Endacott.
PN2061
MR ENDACOTT: Yes, and subject to rights of appeal, that decision will be binding on the parties. Now, the application, Commissioner, originally arose - this matter originally arose as an application filed in accordance with the rules and was given matter number 6205 of 2012, and it described at point what the clauses to which the dispute relates. It was described as 9.1, Monday to Friday rosters, clause 14, Public Holidays, and the fifth point, the National Employment Standards at section 114 entitled to be absent from employment on holidays of division 10, public holidays, part 2.2 of chapter 2 of the Fair Work Act, which is contained, as you're aware, within the National Employment Standards of that Act.
PN2062
The dispute was described in this manner: the dispute is about the respondent introducing a four by 12 day shift roster for fuel maintenance personnel and the shotfirers. The roster requires employees mandatorily to work 13 hours overtime work per week. In addition to this, the respondent has indicated that it is mandatory for employees to work public holidays. The roster with the mandatory public holidays is contrary to the National Employment Standards, and we put the then commencement dates, which was 3 December 2012 and 11 December 2012. This dispute squarely arises about what are the rights of the employee under the National Employment Standard and what is the right that relates to the requirement on them on the roster they work and under the circumstances that are existent to work the public holiday.
PN2063
Now, the Commission, in accordance with its usual practice, asked for there to be posed some questions, and the parties have proposed respective questions, and I just take Fair Work Australia to those questions. In respect to point 4 of our outline of submissions, which was now marked CFMEU25, this is the question we propose: it says:
PN2064
The CFMEU has proposed the following questions as the questions that are required to be answered by the Fair Work Commission: (a) is the instruction to employees from the respondent requiring them to attend all public holidays that fall on their roster at the request of the employer to work a public holiday that falls during the period at which the roster indicates it is to operate for; (b) if the answer to (a) is yes, is it a reasonable request, taking the matters set out in section 114 into accoutn; and (c) if the answer to (b) is yes, is the request for each public holiday not reasonable or is the employees' refusal reasonable, taking into account those matters identified in section 114 of the Act.
PN2065
Before I take you to 114 of the Act, the Commission will be aware that that questioning tailors itself to what are the three components of 114, we submit. Now, we say what the Commission, in deciding this matter, is required to do is to direct its mind to section 114 and those issues that section 114 says needs to be taken into account. In fact, it uses the word "must" be taken into account. The Commission will be aware - I will draw the Commission's attention to it just for historical purposes - the legislative right, for want of a better description, that existed federally about public holidays and the rights for employees to be absent on it originally arose under the Workplace Relations Act 1996.
PN2066
I say the legislative right; in the context of what we say Fair Work Australia needs to consider in its jurisdictional role, there may have been a legislative right to public holidays and the taking of them appearing in New South Wales legislation and instruments prior to that. The test was similar but slightly different, so I just wish to draw initially, before taking you to the current legislative right contained in the Fair Work Act, to its predecessor legislative right in the Workplace Relations Act. So I might just tender the extract. I note that this is - I provided Fair Work Australia with a copy of an extract from the Workplace Relations Act 1996, and specifically division 2, entitlements to public holidays contained in that Act.
PN2067
Now, the test that applied in the Workplace Relations Act was slightly different in this sense, Commissioner: if you go to 6-11, it says, "Definition of public holidays". It sets out what the definition of those public holidays are, and I don't think there's any material difference in that, but if you go to 6-12, it says, "Entitlement to public holidays". The terminology used there is, "The employee is entitled to a day off on a public holiday subject to sub-sections (2) and (3)". It says, "An employer may request an employee to work a particular public holiday", and that's in sub-section (2) of section 612, and it says, "The employee may refuse a request to take the day off if the employee has reasonable grounds for doing so".
PN2068
I just note under sub-section (2), the reasonable component wasn't included in the predecessor legislation. The employer had the right to request it, and that was, one would argue, an unfettered right, to request someone work on a public holiday, but the employee had the right to refuse that request if the request was reasonable. When I take you to section 114, you'll see that the current legislation provides, Commissioner, that both the request has to be reasonable - - -
PN2069
THE COMMISSIONER: Yes. I know that.
PN2070
MR ENDACOTT: - - - and the refusal needs to be reasonable. Then if you go to 13 - if you turn over to page 4, at the top it says, "A term to the contrary in a workplace agreement or an award has no effect", so one would argue that under that legislative right, a term that didn't allow employees to refuse to work public holidays, if it wasn't on reasonable grounds, was a term that had no effect. Then it says here, clause 13, "Reasonableness of refusal", and it provides somewhat of a similar test, but again I note in the first paragraph of 12(3) it says, "In determining whether an employee has a reasonable ground for a refusing a request on a public holiday, regard must be had to" - I note again it's only directed to the employee because the nature of the test wasn't the reasonableness didn't apply to the employer, and then it sets those components, which are quite similar, other than (d) which says, "The employee's reasons for refusing the request".
PN2071
That doesn't appear in the current legislative framework, but one might argue that it's tied up against other elements.
PN2072
THE COMMISSIONER: Well, it would seem axiomatic that it is.
PN2073
MR ENDACOTT: Yes. But it doesn't appear as a separate one. Then (g) is, we say, materially different:
PN2074
Whether a workplace agreement, award, other industrial instrument, contract of employer or written guideline or policy that regulates the employee's employment contemplates that the employer might require work on a public holiday or particular public holidays.
PN2075
That doesn't appear - when I take you to that, that doesn't appear in that form or, we would say, probably nothing close to that form in the current - loosely the structure. Then the third point is, "Whether the employee had acknowledged or could reasonably expect that the employee might require work on a public holiday or a particular public holiday". The current framework is materially different but has elements of that contained in it, we would say. Obviously, the last point - - -
PN2076
THE COMMISSIONER: Well, it does. It's (c), isn't it? 114(4)(c).
PN2077
MR ENDACOTT: I think the second part it does, but not the first part, whether the employee had acknowledged.
PN2078
THE COMMISSIONER: Okay.
PN2079
MR ENDACOTT: So when - I'll start by saying that when the original industrial instrument - the predecessor agreement to the current one - was in operation under the previous Act, the agreement couldn't operate to the effect that people had to work a public holiday if, upon reasonable grounds, they could refuse, because to do so would have been contrary to terms of the Act. My friend will quite rightly identify, "Well, what has that got to do with the scheme of things? It's a new agreement under a different Act," but we do say that the term had passed on. It was pretty well a similar term just moved on, so it has got to be understood from the form in the predecessor agreement that remained essentially the same in the current agreement and the legislative structure that operated at that time.
PN2080
This moves me on to now going to the current legislative structure, because we say this issue will have to be determined by the Commission and therefore I want to spend a bit of time on it, and it does she that the parties are poles apart with respect to the understanding of how the NES will operate. What I do want to do is take the Fair Work Commission to a transcript on Wednesday, 13 March 2012, at paragraph 1206. Now, this is the opening remarks of Mr Warren, my friend here appearing for the respondent, and he says this before he brings his evidence: it says:
PN2081
The Commission will see that this case involves an interaction between specific words in an enterprise agreement and precisely the management Arthur Coal workplace agreement -
PN2082
It should read Mount Arthur Coal Workplace Agreement 2012 -
PN2083
and the words contained in the Act, specifically section 114 of the Act. The union, it appears, in their case relies entirely upon the provision of the Act, and we say that reliance is misdirected. The starting point should always be the agreement between the parties. The starting point should be the enterprise agreement and its words, and the agreement itself, as you will be well aware, was negotiated between the parties and was approved by the then Fair Work Australia, now the Commission. That's the starting point. That starting point of the enterprise agreement not only allows persons to be rostered to work on public holidays but we say it positively permits such work, and indeed anticipates such work.
PN2084
Now, my friend is right when he says we rely heavily upon the words of section 114 of the Act, and we say so should this Commission. If the Commission doesn't, it will fall into error, we say. I'm going to take the Commission to why we say that, Commissioner. I now proceed to the current legislative that's in existence, and firstly I'd like to draw the Commission's attention to section 55 of the Act. Now, in part, I feel almost embarrassed having to recite these elements to the Commission, as I know the Commission is well aware of the terms, but I do so in response to my friend's opening submissions, but I take you to what's my understanding and the applicant's understanding. I believe this is the correct one.
PN2085
I draw your attention to section 55, "Interaction between the National Employment Standards and the modern award or the enterprise agreement", and it says this at section 55.1:
PN2086
A modern award or an enterprise agreement must not exclude the National Employment Standards or any provision of the National Employment Standards.
PN2087
Unequivocal. I'll take you to the standard that's specifically in issue later. If you go to 55.6, it says:
PN2088
To avoid doubt, if a modern award includes terms permitted by sub-section (4), or an enterprise agreement includes terms permitted by sub-section (4) or (5), then, to the extent that the terms give an employee an entitlement - the award or agreement entitlement - that is the same as the NES entitlement of the employee under the National Employment Standards, those terms operate in parallel to the employee's NES entitlement but not so as to give the employee a double benefit -
PN2089
and (b), "The provisions of the National Employment Standard relating to the NES entitlement apply as a minimum standard to the award or the agreement". So the starting point, we say, can't be, as my friend asserts, the agreement. The starting point must always be, we say, the legislative standard; the National Employment Standard. I'll take you to section 61 of the Act that also deals with this issue. I say you can't have words more unequivocal than this, and this is 61(1) - and I'll just draw you - my version of the Act has at the top of the page "part 2, National Employment Standards" and then it starts off at division 1, which is introduction, division 2, which is the National Employment Standard, and section 61 is entitled, The National Employment Standards Are Minimum Standards Applying to Employment of Employees.
PN2090
I just divert before I take you to 61(1) to take you to 61(2), and you will see that 61(2)(h) talks about public holidays being contained within the standard division 10. But now I go back to what I say is the unequivocal words of the standard, and that is:
PN2091
This part sets the minimum standards that apply to employees which cannot be displaced even if an agreement includes terms of a kind referred to in sub-section 55.5.
PN2092
We say that when you go back to this principle issue that Mr Warren identifies as a matter between us, the starting point, being the agreement, is wrong, and its words are wrong, we say, because we say the agreement only becomes relevant, Commissioner, if the agreement provides a term which is superior to or parallel to the NES, and we say it doesn't.
PN2093
THE COMMISSIONER: Do you say the agreement breaches the NES or the employer's interpretation of the agreement breaches the NES?
PN2094
MR ENDACOTT: We say the employer's interpretation of it breaches it because the evidence of - and I'll take you to it - Mr Thomas was, "I always believed in negotiating the agreement Monday to Friday employees couldn't be required to work public holidays or weren't generally required.
PN2095
THE COMMISSIONER: Well, given your reliance on the National Employment Standards, why could, on your argument, any employee be asked to work on a public holiday?
PN2096
MR ENDACOTT: Why couldn't - - -
PN2097
THE COMMISSIONER: Why only Monday to Friday employees couldn't be required?
PN2098
MR ENDACOTT: Well, the problem is any employee has that right, even shift workers, because it exists for all employees. In the case that arises here, out of - I think we have over 1000 members - the people that are raising that the request is unreasonable are those that are Monday to Friday workers, not shift workers, and - - -
PN2099
THE COMMISSIONER: So you don't dispute that a Monday to Friday worker could be asked?
PN2100
MR ENDACOTT: Well, they could be asked, yes, but we say it's unreasonable in the circumstances that exist here.
PN2101
THE COMMISSIONER: Well, if it was unreasonable, they couldn't be asked.
PN2102
MR ENDACOTT: Well, that's right, yes.
PN2103
THE COMMISSIONER: The argument in simplicita is that under no circumstances can Mount Arthur Coal legitimately request a Monday to Friday worker to work on a public holiday?
PN2104
MR ENDACOTT: No, under the circumstances that exist here for these group of employees, they can't request it in the fashion they've done.
PN2105
THE COMMISSIONER: I'm only talking about this group of employees.
PN2106
MR ENDACOTT: Yes. Well, you said under no circumstances, Commissioner, but - - -
PN2107
THE COMMISSIONER: So they are, because of the circumstances applying, exempt from ever working on a public holiday?
PN2108
MR ENDACOTT: Under the current factual matrix that exists, yes, that's correct.
PN2109
THE COMMISSIONER: To be very clear, in the case we're doing at Mount Arthur Coal, this particular group of people can never be asked?
PN2110
MR ENDACOTT: Under these circumstances, yes. Because you can envisage the circumstances where - I divert slightly - the company makes applicationn, for example, to be able to fire a shot on a public holiday.
PN2111
THE COMMISSIONER: To do what, sorry?
PN2112
MR ENDACOTT: Makes an application to the authorities to fire a shot on the public for some special circumstance. Well, if that happened, it may be reasonable to request them to work on a public holiday, so that's why I make the point at the circumstances it exists now.
PN2113
THE COMMISSIONER: But in your argument, it would always in such circumstances be reasonable for the employee to refuse to do it, based on the evidence?
PN2114
MR ENDACOTT: Well, the current evidence, yes.
PN2115
THE COMMISSIONER: You keep saying "the current evidence". In this case - - -
PN2116
MR ENDACOTT: In this case, yes.
PN2117
THE COMMISSIONER: - - - you're asking me to decide something. I know what the matrix is. I'm just asking you that even if the employer could make a reasonable request, would it always be reasonable for the employee to refuse; the Monday to Friday worker, this group - - -
PN2118
MR ENDACOTT: Well, no, if the circumstances varied, Commissioner, because no matter what the Commission decides today, you can't take away the employer's legislative right. So that's why I may have been a bit over - - -
PN2119
THE COMMISSIONER: And I can't take away the employee's rights.
PN2120
MR ENDACOTT: Yes. That's correct.
PN2121
THE COMMISSIONER: I'm struggling, Mr Endacott, to understand how this can be comprehensively prescribed in a decision, but no doubt you will tell me and Mr Warren will tell me what I should do.
PN2122
MR ENDACOTT: Well, yes, I'll get to that, Commissioner. The problem is if it's not prescribed in some decision, then the employer will proceed on the basis, we say, is making people - asking people to work when they shouldn't and people refusing to work, which is not a satisfactory outcome for anyone.
PN2123
THE COMMISSIONER: I find - I struggle with the concept of how we, as a group, can ever escape from some individual analysis of the employer request of a particular employee, the reasonableness of the request, the possible reasonableness of the refusal.
PN2124
MR ENDACOTT: Yes.
PN2125
THE COMMISSIONER: And I struggle with being able to prescribe a complete cure to all possible problems in that regard. I'll tell you this because, as you know, I don't ambush people: I would like to be told why I shouldn't take that process.
PN2126
MR ENDACOTT: Well, I can (indistinct) it's a dispute between the parties and if that approach is taken, the dispute remains and we end up having to fight the matter out in the court, and that's why we have a disputes resolution procedure that brings these matters before the Fair Work Commission, and I make no further submission on that specific point, Commissioner.
PN2127
THE COMMISSIONER: I know what my duty is. I'm just wondering about the discharge of the duty. But go on. I won't interrupt you again.
PN2128
MR ENDACOTT: And that draws me to what the legislative right is, and I'll try to proceed through this quickly. It's down at section 114. So what is the legislative right? This is the right, Commissioner, that we say - and I've taken you back to section 55 and section 61 that describes it - it is a right that employees have - that all employees have - but it's a right that an employer can't go below by contract, by agreement - the Commission can't go below by award. It is, with respect to entitlements, the 10 commandments. It is, in industrial terms and the rights of people that hold it close, the word of God, in the sense that it can't be got around.
PN2129
THE COMMISSIONER: I wouldn't push it too far.
PN2130
MR ENDACOTT: Yes.
PN2131
THE COMMISSIONER: Perhaps Woodrow Wilson's 14 points or something. It's approaching Easter.
PN2132
MR ENDACOTT: And in construction terms, it is the ground floor; you can't go below it. We say this: it says at 14(1), absolutely unequivocal the right:
PN2133
An employee is entitled to be absent from his or employment on a day or part of a day that is a public holiday in the place where the employer is based for work purposes.
PN2134
We say the purposeful nature of the legislation has been set up front. That is the entitlement we say it should be interpreted giving effect to the purpose of it. We also say that it is beneficial legislation to an employee, and the normal interpretations that go with legislation that confers a right, it's interpreted widely, should be applied. I make the point that it's not in the terms - it's clearly written in the terms of granting a benefit to an employee. So it's that person's right that it should be read widely to. And then it goes on and it says - then it refers to the employer right.
PN2135
It says"However, an employer may request an employee to work on a public holiday if the request is reasonable", and I just quickly refer back, under the previous legislative structure, the reasonableness of the request wasn't an element that had to be taken into account. This - here it does. Then it goes on 14.3. It says:
PN2136
If an employer requests an employee to work on a public holiday, the employee may refuse the request if the request is not reasonable or the refusal is reasonable.
PN2137
And we say both elements apply here; the request, because of the circumstances not reasonable, and the refusal is reasonable. Then at 14, it says, "In determining whether a request or refusal of a request to work a public holiday is reasonable, the following must be taken into account", and we say that the Commission has to consider every element of that, and I'll briefly go to each of the elements and say what the evidence establishes with those elements. I notice the catch-all is "any other relevant matter", so you are required to take into account (h) to (j) and obviously anything else that might be relevant. This leads me to then each of the tests and back to the submission.
PN2138
"The nature of the employer, workplace or enterprise, including operational requirements and the nature of the work performed by the employee." We say what the evidence establishes - and a lot of this is not controversial - the employer is an open-cut coal mine, a very large one; that the employer operates on a 24-hour, seven-day-a-week basis, excluding two public holidays that aren't permitted to be worked by virtue of a superior term that arises under an industrial instrument, and that's not controversal in these proceedings. The employer has a large workforce and the vast majority of their production (indistinct) employees work seven-day rotating 12-hour operations.
PN2139
The vast majority does, and there is a lesser and smaller group - a very small group in comparison - that works Monday to Friday. Now, this matter before you concerns two elements of that, Commissioner. One is the shotfirers and nine of the shotfirers - all of them have given evidence in the proceedings - and then a small group of maintenance employees, all of which who have given evidence in these proceedings. This group of employees work Monday to Friday, and how they work, Commissioner, was - and I just divide them up. Shotfiring employees. Shotfirers historically worked five eight-hour shifts, 40 hours a week, then they moved to five nine-hour shifts, 45 hours a week.
PN2140
I know this issue arose in the evidence and you're aware of it, but that requires - the 40 hours required for the shotfirers to then work a mandatory five hours overtime a week and the five nine-hour shifts required them to work - then they moved to 10 hours overtime a week. But they only worked Monday to Friday and they weren't required to work on public holidays. Now, for the maintenance employees, this small group that do plant maintenance that were working five eight-hour shifts, either a day shift or an afternoon shift - that's what they had been working - Monday to Friday, and not required to work on public holidays.
PN2141
On the change of the roster - and that roster, Commissioner, required the working of 40 hours a week, which is 35 ordinary hours and five overtime hours each week - and rostered overtime hours each week. And then on the implementation of the new roster, the employer went to the four 12-hour shifts that required one group to work - one week you work Monday to Thursday and one week you work Tuesday to Friday as a day shift, so as a result, you work four days of 12 hours 48 hours a week, which is 13 hours overtime a week. But on the implementation of the increase of the eight hours overtime, there was also a requirement you had to work on public holidays as a Monday to Friday employee.
PN2142
We have situation which have shotfirers work Tuesday - this small group, effectively, works Tuesday to Friday. They do 48 hours a week, 13 hours overtime. They're not required to work on Saturdays, Sundays or Mondays. Just not required. You have another group that remained unchanged that works eight-hour shifts, that work Monday, Tuesday, Wednesday, Thursday, Friday - this is the shotfirers - and they're not required to work on public holidays but they're required to work from Monday to Friday. If we talk about the operation of this group of employee, the shotfirers, they are not required every day of the week. No shotfirer is required every day of the week.
PN2143
They're not required to work night shift. They're only required to work day shift. Operationally, they don't need to work on any particular day for the mine to operate because they're not there - the group that are affected are not there Saturday, Sunday or Monday. The other group, they're not there on Saturday, Sunday or not required to work on a public holiday that falls due. The reason why I stress this, it becomes important later on when we talk about the consideration of shift work. It's not a case operationally that this group of employees are required seven days a week, 24 hours a day. Their work is planned, it's predetermined; I'm talking about shotfirers.
PN2144
I want to stress this: I also make this point with respect to the operation of the business, and there's evidence on this - and it's not controversial - they're prohibited from firing a shot on a public holiday or on a Sunday. Now, I think it was conceded that - this is not a controversial submission - you can make application in special circumstances to fire a shot on those days and someone can consider whether to do it. I don't know whether one ever has been. They can fire a shot on a Saturday but they don't.
PN2145
THE COMMISSIONER: Well, rarely do, I think, was the evidence.
PN2146
MR ENDACOTT: They don't normally, but the evidence is that they rarely do.
PN2147
THE COMMISSIONER: Yes.
PN2148
MR ENDACOTT: Operationally, we say an employee is not required to work a public holiday, which they have this legislative right that they're entitled not to work it because the boss doesn't even need them on a day where he can work them, and he doesn't work them on a Monday every week, and we say that, and if you go to the cross-examination of Mr Botha, he admits that they can do things if they're behind - two things, if they're behind, to get the blast up. I make this other point, Commissioner: one would say - and the employers have tried to run this in evidence - well, to fire a shot on the day after a public holiday, we need them to fire a shot operationally on the day - you'll need them to work on the day before it, but you - - -
PN2149
THE COMMISSIONER: Not to fire the shot; prepare it.
PN2150
MR ENDACOTT: Yes, to fire a shot on the public holiday. Well, they need to do it the day before. But their evidence in that regard is self serving and it fell apart under the cross-examination of Mr Botha, that said they fire up to three shots on a Monday regularly. I also make this point: they can fire a shot on a Saturday and not have anyone work on a Saturday. They can't fire a shot on a Sunday, so no-one has ever worked on a Sunday. This goes back to this - never worked on a Sunday. They've always been able to fire a shot on the Monday - Mr Botha's evidence is it happens and they can fire up to three shots on a Monday - but they've never required people to work on a Sunday.
PN2151
The logic is if on a public holiday - say for example it's a Monday you can't fire a shot on a public holiday - you don't need me to work to get a shot off on Tuesday because I say this as time immemorial they've never required anyone to work on a Sunday to fire a shot on the Monday, and fire three shots.
PN2152
THE COMMISSIONER: Well, I'll ask you to speculate. Why, in your view, do they want this right? Is it merely being capricious?
PN2153
MR ENDACOTT: I don't know why, Commissioner.
PN2154
THE COMMISSIONER: If you're right and it's totally unnecessary and essentially dumb to want this, the question must arise why.
PN2155
MR ENDACOTT: Well, that's a question that the other side may need to answer. But the test - - -
PN2156
THE COMMISSIONER: I pose it to you. Mr Warren is listening.
PN2157
MR ENDACOTT: The test is whether it's reasonable to request it. One could argue, Commissioner, "Well, if you require people to work on a public holiday, they're just going going to do more work. Therefore they're more efficient. Therefore you can require them." The test is whether it's reasonable, taking into account all the factors, no one being more important than - should necessarily be more important than the others, even though one matter can be more determinative. We say - I don't know why. We say it's not reasonable on that basis.
PN2158
THE COMMISSIONER: Well, you say it's totally unnecessary.
PN2159
MR ENDACOTT: Well, I do, and we say it's unnecessary because they haven't had to do it ever.
PN2160
THE COMMISSIONER: Just to make your life more difficult, can I pose another question to you. I'll just wait for Mr Warren so he can hear as well. Say for argument's sake - purely hypothetical, because I've reached no conclusion at all - if I was to find that the request generically to work on public holdiays was reasonable and I was also to find that the persons who have given evidence, admitted statements et cetera have made a convincing case that their refusal is also reasonable, what happens with new employees?
PN2161
MR ENDACOTT: Well, you need to look at the circumstances - - -
PN2162
THE COMMISSIONER: We'd be back again, wouldn't we? Each time the workforce changes, we'd be back again.
PN2163
MR ENDACOTT: I couldn't speculate - - -
PN2164
THE COMMISSIONER: You could set up a permanent mini tribunal somewhere.
PN2165
MR ENDACOTT: Well, we could do, but that's the nature of the way disputes are resolved. The other thing that - when we need to look at the nature of the employer's workplace or enterprise, including operational requirements, and the nature of the work performed by employees - and I think I've talked about the shotfirers - I also want to make this point, and this evidence isn't, we say, controverted in any reasonable matter, and that is the affected employees work a lot of hours; 13 hours of overtime a week. That is a lot. Now, I know I put that - - -
PN2166
THE COMMISSIONER: That's significant, yes.
PN2167
MR ENDACOTT: I know I put that to each of the company's witnesses, and they were of the view that it wasn't a lot. Well, we say that it shouldn't be accepted. In any event, the evidence that is brought by each of the affected employees - to just cover shotfirers and maintenance - from those individuals, including in one case their wife, is just - it's evidence about how much it is and how much hardship it causes them.
PN2168
THE COMMISSIONER: But if they work the public holiday, they wouldn't be working longer that week, wouldn't they?
PN2169
MR ENDACOTT: Well, they'd be working longer hours in a year than they would - - -
PN2170
THE COMMISSIONER: If the public holiday falls during - on a day that they would normally be there, how does that extend their working week?
PN2171
MR ENDACOTT: Well, it doesn't extend their working - - -
PN2172
THE COMMISSIONER: You're saying they should work 7 hours - or, sorry, whatever it is - less that day - - -
PN2173
MR ENDACOTT: Or 12 hours, yes.
PN2174
THE COMMISSIONER: - - - that week, but if they were required to work it reasonably and had no reasonable excuse not to, it doesn't make for a longer week.
PN2175
MR ENDACOTT: Well, it doesn't make for a longer week, but in any event, if they don't - well, let's - - -
PN2176
THE COMMISSIONER: It's the same week.
PN2177
MR ENDACOTT: Well, put it this way: if they're required to work on a public holiday that falls - if a public holiday falls due on a Tuesday and they're required to work, at the moment there's a legislative right saying they have a right not to be there. So that's a day that they will be with their family.
PN2178
THE COMMISSIONER: Believe me. I haven't missed that.
PN2179
MR ENDACOTT: Yes. So if the boss says you've got to work, then you have to work more hours than you would have otherwise if you'd had the public holiday, and that's the point I make. Because interestingly, you can take your public holiday off - on the Tuesday, for example, it falls due - you still get your ordinary hours plus one hour overtime for the week. You don't even wipe your overtime out, Commissioner. We say what it is, people that are already working a lot of hours that are being pushed to virtually - and some of them you would think it was breaking point, based upon the evidence - and when you read the evidence you'll see who falls in that category. A lot of them say how difficult it is - and it just means they'd have to work more hours.
PN2180
What's not controversial from the evidence we say also, Commissioner - and this does in part apply to both categories - these employees work more hours than any other employees at the mine. They work more hours to the five nine-hour guys and they're still required to work on the public holiday. I do know the seven-day shift workers work on public holidays, but I make this point, Commissioner, and this is why we say you need to look at the work performed by these: for this category, the seven-day shift workers earn more money, they get one week more leave a year, they work 26 less shifts a year, and if you had the one extra week it's more than that, but 26 less shifts a year. They work less overtime on average each week.
PN2181
We say it's also unfair, Commissioner, because the category that's being required to work on the public holiday is the category that is Monday to Friday, not seven day, works more hours than anyone else, and we say that's an operational consideration that needs to be taken into account. Now, if we go to the planned maintenance employees, we talk about - and also the test of, Commissioner, the nature of the employer's workplace or enterprise, including operational requirements and the nature of the work performed, and I'll briefly go over it, because I've transversed the area before. There are many maintenance employees. The evidence is over 300 or something. This is a very small group; 11.
PN2182
This is a group that had only ever worked Monday to Friday, had only ever worked 40 hours a week. This is mandatory work, so they did do overtime, and if you see the evidence of them, they indicate they have worked voluntary overtime trying to help the company out. They did planned maintenance, and that is the maintenance that is scheduled for them to perform, and the vast majority of maintenance employees worked down on what's generally referred to on the breakdown crews. They're seven-day rotating 12-hour rosters, the vast majority, who are there all the time to repair things that arise.
PN2183
Now, this matter only concerns the Monday to Friday employees; no seven-day employee has got up and raised an issue about the working of the public holiday. We say operationally the reason for this is quite clear, because operationally you need - or you think the company needs so many people there 24 hours a day to do the work. And that's not this category. This category of employee, Commissioner, is not needed on Saturday or Sunday and half of them is not needed on Monday, half of them not needed on Friday and none of them are required on a night shift. Operationally, it's not a case, as in seven-day employees where, "Look, we need 20 people because we have work that comes up for 20 people and we've got to have people there to fix it".
PN2184
Operationally, it's we can schedule this work a month in advance and we can plan to have them working on one day and not the other day, and so we say the nature of the employer's operation for this group of Monday to Friday employees is such that you don't have to have them there every day. You don't need to have them work on public holidays a day they're entitled to be absent. Interestingly - we also say this, Commissioner: funnily enough, the company is requiring them to work on a public holiday where they're entitled to be absent. They don't require them to work on Saturday and Sunday when there is no entitlement to be absent; they can put in the roster a requirement to do that.
PN2185
It's because they don't need them there; they can schedule the work. The other point we say operationally is that, Commissioner, when you look at the operation, for years and years they've never required them to work on a public holiday. They've maintained the business. And if we look at the operation, Commissioner, you might have some sympathy if the company turns up and says, "Operationally, we need them because we've got the seat falling out of our pants or we're not making any money or we've got the worst production we've ever had" - - -
PN2186
THE COMMISSIONER: Or, "We'd like to make more money".
PN2187
MR ENDACOTT: Well, I say that's not an excuse.
PN2188
THE COMMISSIONER: Is that unreasonable? Would that in itself be unreasonable if the company said, "We wish to increase production to make more money?"
PN2189
MR ENDACOTT: Under these circumstances it is; to take away their right, but that may not. Because I draw your attention to this, and that is CFMEU20, and that's the company's own material. If you recall - I think I put to Mr White, and you may wish to read the transcript to check this, I said, "Look, your mine is the jewel in the crown in" - - -
PN2190
THE COMMISSIONER: I remember that.
PN2191
MR ENDACOTT: Look, the answer was generally, "Yes, it is". But I just take you to CFMEU26, and this is a document dated 23 January 2013, Commissioner. This is BHP Billiton's own press release. If you turn to the fourth page, it says here, towards the bottom when they're reporting on their performance:
PN2192
PN2193
And Mr White conceded that that was essentially Mount Arthur. This is a mine which has had record production. It's not a mine in which they can argue, well, they have some operational or cost imperative to require people - for them to request people to work on a public holiday. I also want to make a point about the maintenance employees - is that operationally, they've gone from being required to work 40 hours a week, five hours' rostered overtime, to 48 hours a week rostered overtime. That is an additional eight hours for 52 weeks a year, if they don't have any annual leave, and also them being required to work public holidays, so however many that falls on it adds up; a massive increase in hours.
PN2194
You'll have noticed when you've read the statements of the witnesses about the hardship that has caused some of the persons personally. But not even hardship; how the inconvenience it has caused them. And I can't remember whether it's one of the maintenance employees or the shotfirer employees who says in his evidence that because of the extra hours he's working, he can't do his fair share of the responsibility with his children. That's the evidence that he gave in these proceedings, and I can't recall whether that was a shotfirer or maintenance employer.
PN2195
I put this: he is prepared to swear that, and that is, for an admission for a father to make about his family, you can understand why he doesn't want to work on a public holiday. In unequivocal terms, the hours he's required to work, he can't meet his responsibilities in taking care of his children. Now, in any event, we go on about this, Commissioner. We go on about operational reasons, but in addition to that, we say it's unreasonable to request them to work on a public holiday - and certainly it's unreasonable for them to refuse - on operational grounds because you've just given them a massive slug of the number of hours you want them to work in a year, and now you put the additional burden of them not being required to work public holidays.
PN2196
With respect to that issue, we say all of that would favour, we would say, a tendency - and even it would meet a single test, Commissioner, of the request is unreasonable and the refusal, under these circumstances, is reasonable. Now, the next point deals with an employee's personal circumstances, including family responsibilities, and that's a matter that must be taken into account. I've mentioned, and each of the witnesses go to it and they endorse the letter that was written on their behalf on 18 December to the company about them working excessive hours, but I'm not going to take the Commission to each of the statements. When the Commission reads those statements, they will see the personal circumstances that arise, and - - -
PN2197
THE COMMISSIONER: I can admit I haven't read the statements at this stage.
PN2198
MR ENDACOTT: Yes. But when you read it, Commissioner, you'll see the circumstances behind each of them, and because there's 20-something statements - - -
PN2199
THE COMMISSIONER: I look forward to wading through them line by line.
PN2200
MR ENDACOTT: Then that takes me to the next point: whether the employee could reasonably expect that the employer would request work on the public holiday. We say the evidence that falls for each of them is that they couldn't have reasonably expected it. Now, I know my friend is going to point to the industrial instrument and say, "Well, if you read the industrial instrument, it operates to the effect that we can require them to", but I say that's wrong and can't assist our arugments on this basis: (1) is if you take the maintenance employees, they were - if we talk about maintenance, many of them went and worked there because it was Monday to Friday and they worked less hours, didn't do shift work and would get public holiday off. The weight of evidence is that if you're a Monday to Friday employee, in the industry, you don't work public holidays.
PN2201
Now, I say "the weight of evidence" because there is evidence in some places where that's not right, but I'm talking about generally the weight of evidence is that that's the process that happens. So anyone that's applying for a Monday job, they would have, unless specifically told otherwise, they would have been under the assumption that they wouldn't be required to work on public holidays, which is completely different from seven-day employees because I - and I think the Commission just knows this due to experience in the industry - if you work seven days, you pretty well know you're going to be required to work on public holidays because you're - - -
PN2202
THE COMMISSIONER: But on your argument, the seven-day worker still has the right to refuse on reasonable grounds.
PN2203
MR ENDACOTT: If it's reasonable, yes. But I make the point whether the employee could have reasonably expected it, and I would say, look, it's just (indistinct) fact, if you apply for a seven-day job and you get it, you can reasonably expect they're going to ask you to work on a public holiday. That's just the nature of seven-day, 24-hour employment.
PN2204
THE COMMISSIONER: I can accept that.
PN2205
MR ENDACOTT: But from Monday to Friday, we say the weight of evidence is it doesn't happen; you work on public holidays, even though there is evidence it does work on occasion, and a lot of them gave evidence about what they understand to be - for Monday and Fridays going to work on public holidays. Mr Thomson gave evidence from his experience about Monday to Friday employees not working on public holidays. Many of the shotfirers gave evidence that Monday to Fridays don't work on public holidays, and what's not controversial in the evidence here is that, Commissioner, shotfirers in the Hunter Valley, every operation is prohibited from firing a shot on a Sunday and a public holiday, but that's not the case in Queensland because they have the more remote mines.
PN2206
We would say in that category they would expect they're not going to be required - if you're a shotfirer, there's not going to be an expectation that you're going to work on a public holiday. But also with respect to the maintenance employees, they're Monday to Friday. It's schedule in advance. There is a legislative entitlement that you are entitled to your day - albeit there's a few clarifications around that - and also for years the mine had never worked on a public holiday. We say that test would fall again in favour of the employees, and in fact there's evidence from individual employees that wasn't challenged that they moved from seven-day operations to there so they didn't have to work Saturday and Sunday and public holidays.
PN2207
But I also want to make this point: the agreement doesn't read to the effect that the boss can roster you the work on a public holiday and you have to work it because the agreement has to be read in the context of the legislative structure. So you can have a roster - someone can say, "Look, can you put me in a roster", if you work Monday to Friday. Well, that doesn't mean, if that's conceded that the nature of the agreement is you have to work the Monday to Friday. It automatically is a reasonable request because we've issued you - because the agreement says we can have a roster to that effect in there. Because if that was the case, it would be a breach, we submit, of the National Employment Standards, and also a breach of the predecessor legislation.
PN2208
Certainly the evidence, I think, from our side of the table was, from the people involved in negotiations, they just thought you couldn't be required to work on the - they just thought Monday to Friday employees wouldn't work on public holidays. Also why we say, Commissioner, that the Commissioner could not reasonably expect it - and if we take the shotfiring employees - each of them gave evidence that - well, most of them gave evidence that when they applied for the job they were told they were thinking about going to new rosters and that might be a 12-hour roster - a four-day, 12-hour, so there was evidence of that, but each of them gave evidence that they were not told they'd be required to work on public holidays.
PN2209
I don't repeat again about shotfirers not being allowed to fire shots on the weekend. But I also make this point - - -
PN2210
THE COMMISSIONER: Well, not allowed to fire shots on Sundays and public holidays.
PN2211
MR ENDACOTT: Yes. Sundays and public holidays. I just take you to this point, Commissioner: even if you go to the terms of the agreement, and I go back to the statement of Mr Drayton, which is CFMEU19 and JD1, which is the current enterprise agreement, and I go to - and you go to the annexures to it - and I'm specifically going now - if you're going to page number 37 and turn the page before that, Commissioner.
PN2212
THE COMMISSIONER: I'll let you read it to me, Mr Endacott.
PN2213
MR ENDACOTT: Yes. This is the current collective agreement and it is schedule 2.1, which is the Monday to Friday, based on eight-hour nominal shifts, roster, and over the page it says, "Monday to Friday roster wage calculations", and it says, "Wage illustrations for a level A employee from the commencement of the agreement". Now, this document was included - and this was confirmed in the evidence - as an attachment so people had an idea of what they'd be earning under it. I think it goes without saying, and as was conceded, they wanted to be accurate, they wanted people to be reflective of what people were going to do.
PN2214
Now, if you go to that page, it says, "Wage illustration level employee". It talks about eight hour, 20 minutes, eight hour, 30 minutes and eight hour, 40 minutes, and I note the 12-hour Monday to Friday shifts are not there, but it is for Monday to Friday, and it goes through and outlines essentially everything you would need to be able to calculate what you're going to earn on the commencement of the agreement; every element. Except when it goes to public holidays, the only calculation - it doesn't - the only calculation it includes is public holidays not worked, shift length at hourly rate.
PN2215
It doesn't provide at all for what you'd be paid for a public holiday of your work, and there can be only one reason for that, Commissioner, if it's truly meant to be reflective of what someone was meant to earn; someone on Monday to Friday wasn't meant to work on a public holiday. And if you flick over the page two pages and you go to seven-day roster, and this can be found at the page before page 39, it says, "Seven-day roster wage illustration for level A employee from the commencement of the agreement", and it's got the 12-hour shifts there; 12 hours, 12 hours 20, 12 hours 30, 12 hours 40. The additional time is sorto f the changeover time.
PN2216
But what components does it raise so someone can accurately identify what they'd earn? You go down. It says, "Public holidays", and it's got the three different optinos you can get paid: public holiday rostered day on, not worked; public holiday rostered day on worked; public holiday rostered day off, paid 10 hours at ordinary rate. Look, the purpose of that, we say, accords with what was, from evidence, Mr Drayton and Mr Thompson's view about what could be happening, and that was Monday to Friday, employees didn't work public holidays. The reason why I take you to that is because the legislative test isn't the legislative test that appeared in the old legislation, and I'll just read what the old legislation was - and this is the Fair Work Act - sorry, the Workplace Relations Act.
PN2217
The legislative test there was whether a workplace agreement, award or other instrument, contract of employment or written guideline or policy that regulates the employee's employment contemplates that the employee might require to work on a public holiday or a public holiday. The test under the new provision is the more general test of whether the employee could reasonably expect that the employer might request work on a public holiday. And let's face it; if you're a Monday to Friday employee looking through that, you'll see that the the only option is not working on a public holiday and you've got an understanding of an industry - and we say the weight of the evidence establishes - of course your view is going to be, "Well, I couldn't reasonably expect I would be expected to work", which is different from a seven-day worker, where they might think, "Well, maybe I would be expected that I'd be called upon to do it, a shiftworker".
PN2218
I didn't address this when it cames to the nature of the workplace - this is the nature of the employer's workplace enterprise, but it goes without saying - and that is it's not a hospital. They're not ambulance drivers. They're not coppers. They're not a whole series of things that you pretty well have to be there. They are either shotfirers or they're planned maintenance employees. Also what else we say supports that is when, Commissioner, the shotfirers, when they applied for the job, some of them were sent out - and I think this may have been all of them - but some of them were provided with a breakdown of what their indicative rates would be; an estimate of what they would earn.
PN2219
I'm just trying to think of who - what I'll do, I'll move on from that point and when one of my colleagues finds - I'll take the Commission back to it when I find the attachment, but the employees were given a breakdown of what they would earn annually for one of the shotfirers, and in that annual figure, it didn't include the working a public holiday being calculated, and so we would say it further supports that view, and I'll just give you the reference number to that attachment when it's brought to my attention. I'll move on to the next point, which is (d), and that is whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectations an expectation of work on public holidays.
PN2220
I say this, Commissioner: the employees are paid very well. I don't think there's an issue about that. But in saying that, Monday to Friday, employees earn less than seven-day roster employees, and we say automatically a lot of that is because of the inconvenience of working on Saturdays and Sundays and working night shifts and that, but we say it's also open for the Commission to conclude that one of the issues is because they would be expected to work on a public holiday, most likely as shift workers. But I also say - I say that, and I also say this: for seven-day employees, Commissioner, they do have the working of public holidays built into their salary. They'll only get a single time extra payment for working on public holidays, and that's not the case with the seven-day - the Monday to Friday employees.
PN2221
In many regards, it's a neutral test. They do get paid for working on public holidays, Commissioner, but in any event, we say that it doesn't overly weigh for us or against us. But if it did weigh anyway, then it would weigh for us in the sense of the comparison with seven-day shift employees. Now, if I move on to the next point, which is (e), which is the type of employment of the employment. That's, for example, whether the employee is full time, part time, casual or shift workers. Well, what is the type of employment - and this has been covered in operational reasons - but they are Monday to Friday.
PN2222
They're not shift workers, and I just want to - I note that Fair Work Australia is aware of this, but shift work, when used in the context - the Fair Work Commission is aware of this, I should say - of the Act is the context of seven day. Shift work might mean you're just required to work day, afternoon or night shift, but we say it's seven day. And the reason why we shift work should be given a seven day meaning is because of section 187(3), which talks about the shift work definition for the NES. I hope that's right. I'll just double check that is the right section. 187 - well, it's not 187. I apologise for that, Commissioner.
PN2223
THE COMMISSIONER: On that note, Mr Endacott, you have been hard at it now for an hour and (indistinct) and I have been hard at it listening to you and giving you a hard time with questions so we will break for 10 minutes.
PN2224
MR ENDACOTT: Okay, thank you. I will just mark that section out.
<SHORT ADJOURNMENT [11.19AM]
<RESUMED [11.36AM]
PN2225
THE COMMISSIONER: Mr Endacott.
PN2226
MR ENDACOTT: Thank you, Commissioner. In section - under section 80 - - -
PN2227
THE COMMISSIONER: I thought you were looking for something else weren't you?
PN2228
MR ENDACOTT: Yes, I was looking for two things. One I was looking for the shift definition and I'll go back, I found the statement.
PN2229
THE COMMISSIONER: Very well.
PN2230
MR ENDACOTT: In section 87, not 187, 87, and we say shift workers when used in the Fair Work Act is given the meaning of a seven day employee and the reason why I say that, and I'll just take you to section 87.3. I note this deals with annual leave but it talks about the fifth week of - the extra week of annual leave and it's at 80.3, it says, "An award or agreement for an employee qualifying for shift work annual leave entitlement if the employee is employed in an enterprise in which the shifts are continually rostered 24 hours a day, seven days a week and is regularly rostered to work those shifts and regularly works on a Saturday, Sunday and public holidays," and then it talks about (indistinct) proscribed by the standard.
PN2231
So if I go back to 114 when it says the type of employment of the employee, for example whether full time, part time, casual or shift work, we say well they are obviously not part time, they're not casual, they're not shift work, in the sense not seven day employees working regularly Saturday, Sunday and public holidays, and in fact if you look at the type of employment I adopt without repeating what I said about the work they perform going back to the first test, the nature of the employer's workplace or enterprise and the nature of the work performed by the employee. Their category of employees Monday to Friday, not required to be every day, the work scheduled and all - as I said I adopt all without repeating myself about the shot firers not required to fire a shot on Sunday or public holidays and for the maintenance employees not required on the Monday or the Friday, only half crews on those days.
PN2232
So they are the category of employee, a type of employee where there wouldn’t be we would say general expectation normally that they would be required to work on a public holiday as a matter of course and also there is good evidence from each of the individuals, a lot of which is untested about their general understanding about people either shot firers or working Monday to Friday maintenance not being required to work on public holidays and also the evidence of Mr Thompson about his experiences being a union official for many years, about he was unaware of any Monday to Friday working Monday to Friday employees that were required to work on a public holiday and also he wasn't aware of any Monday to Friday employees that worked 48 hour 12 hour shifts. Mind you his evidence is in (indistinct) but we say that as a general proposition maintains and also just addressing that point of the evidence of Mr Thompson, you will recall Mr White responded specifically with respect to Bengalla and there was the unchallenged evidence of Mr Debba from Bengalla who is an employee there.
PN2233
His evidence is essentially the fact that they do have a category of employee that does work on a public holiday, it's Monday to Friday, but with respect to public holidays his evidence is to the effect Commissioner that basically if you don't want to work a public holiday you don't, you just ask for it and they give it off to you and in fact I think his evidence was also to the effect is that if you work a public holiday you get paid a choice - you get a choice about whether or not if you work a public holiday whether you want to get paid for it which was quite a handsome payment or if you just bank it and take it off at time that was mutually agreeable and convenient to everyone.
PN2234
So that had a we would say quite a generous public holiday policy and in fact one that certainly if not in the letter in the spirit complies with the requirements of section 114. It leads me to the next two points and I will sum up soon with the last point and that is the amount of notice in advance of the public holiday given by the employer when making a request. If a request is technically made there has been sufficient notice given for the working of public holiday. In a time sense we would say. But that doesn't help a party either way we would say and then G sort of the submission but in reverse and that is in relation to the refusal of request of the amount of notice in advance of the public holiday given by the employer when refusing the request which as soon as they realised that they were part of the public holidays it was raised - the concern was raised then and also each of the employees through the union, their representatives on for and on behalf of them had wrote to the company in considerable detail informing them of the refusal and setting out the basis for it, other than going into detail about the specific where they arose personal circumstances.
PN2235
So we say in turn the amount of notice given for the refusal for G is quite reasonable as well is that it's sort of a bit of a neutral there we would submit, Commissioner. And then the other point is any other relevant factors. So before I move on to that I will take you back to the document I was trying to find and that is CFMEU8 and it's the statement of Brandon Leadley and it's in fact attachment BL2 and if you recall, Commissioner, this was when I was speaking about the issue that I was dealing with about whether or not the employee could have reasonably expect that the employer might request to work on a public holiday and I said that couldn’t automatically fall through the agreement and then I took you to the (indistinct) in the agreement and I also raised that there were some pay information provided to the prospective employees for shot firers and it also didn't lead to the automatic conclusion that you would be required to work on a public holiday and we say it would lead to probably the reverse conclusion to the extent that it's relevant and CFMEUH, and what this is, is this was a document supplied to Mr Leadley, others were supplied as well.
PN2236
The document speaks for itself but it's indicative (indistinct) annually as an assistant shot firer or as a qualified shot firer, and as a matter of fact that does not include what you have received if you work on a public holiday. So we would say - and that deals with the 12 hour shift and we would say that that document wouldn’t have led anyone to believe that they would have been required to work on a public holiday when they were (indistinct) they would have earned and the evidence of each of the shot firers was that they weren't informed when they commenced they would be of were of the view they would not. Now this takes me to the last point, other relevant factors. We say another relevant factor here is of course the mine and it's been referred to in other areas has been achieving record production without them working on a public holiday.
PN2237
We say other relevant factors is that this operation is - I use the terms the jewel in the crown of BHP Coles assets. So there is not a need for people to work on public holidays. We say the other relevant factors are that these employees work a lot of hours, more than virtually anyone in the (indistinct) districts and there may be exceptions to it, a 12 hour four day roster, they work more than pretty well anyone else on a weekly basis. That that causes certain difficulties for them and therefore that should enhance their right to not work on a public holiday and it should enhance the reasonableness of their refusal. And there is a public interest question here, only a minor one but it's a public interest and that is is there's been lots of discussion lately about fly in and fly out.
PN2238
It's the ever increasing number of hours coal miners are required to work and in this case it's a group of employees that are now being requested to work on a public holiday where that category had been requested before. It's a group of employees that work an unprecedented amount of overtime, almost 13 hours a week of overtime. 13 hours of mandatory overtime a week and to the extent that that is rostered overtime. The evidence of the employees talks about the inconvenience that causes them and their families and we say that also is a matter that we say is relevant. And we also say - - -
PN2239
THE COMMISSIONER: But you don't dispute that overtime is reasonable?
PN2240
MR ENDACOTT: Beg your pardon?
PN2241
THE COMMISSIONER: But the overtime - 13 hours overtime is reasonable in accordance with 11.1?
PN2242
MR ENDACOTT: 11.1?
PN2243
THE COMMISSIONER: Of the agreement.
PN2244
MR ENDACOTT: Look, I say it’s a lot of overtime. Commissioner, we don't allege that people are being required to work unreasonable overtime but in - well, there is evidence from individuals saying the overtime they work is unreasonable, so there is evidence to that effect and in preparing the statements, Commissioner, and (indistinct) off point, I informed many employees of the right not to be required to work unreasonable overtime and many of them didn't even know it. So we say it's a lot, we say it's that much that it causes difficulty and that is another reason why they shouldn't be required to work on a public holiday. For the purpose of the argument here I'm alleging it’s a lot, may well be unreasonable but we are not running unreasonable overtime case, that's for the individuals to decide once they know their rights, what they wish to do, not in this sort of application.
PN2245
But I make the point it's a lot of overtime. It's more hours than everyone else works. It's more hours than everyone else works at the time. It's more hours than coal miners generally work in the northern district and that we say is a very important factor and when you read the evidence from individuals that are untested they talk about they do not spend enough time with their family. They can't do things with their family and a public holiday you lose with your children is a public holiday you never get back and I always - Martin Luther King in a speech said justice delayed is justice denied but it's also with respect public holidays, you've got entitlement to it but if you work a public holiday even though (indistinct) reasonable, you can never get it back, the time is lost forever and we say for that reason - and that's why the legislation says people are entitled to it and we say that's an important factor that arises in this case.
PN2246
Then I just want to finish on the very last point, Commissioner, and that is this. The evidence in these proceedings is that - and this has not only been brought by the employees who were involved in the original discussions about the roster but some individual people give evidence, is they were being told we're not even really concerned about public holidays, all of them, we're only really concerned about the ones that fall mid week. I make this point, when I cross-examined the company's witnesses about - Mr Seears about do you need people to work on a public holiday and I say you don't because you can schedule around it. He says, no, no, I think we need people and all that sort of stuff.
PN2247
But then I say then but you said to the - and this is the point I make, this is why I don't address the exact evidence, the Commission will be familiar with it, and then I say but hang on, you said to the employees if you agree to work the mid-week overtime (indistinct) public holidays we don't need you for the rest of them, if you recall, for the Monday, the Fridays, but there's only three mid-week public holidays a year. So I make this point about other relevant matters. The other relevant matter is they really don't even need them on the public holiday because if they needed them they wouldn’t be able to you know hang it like a sword over the employees. Do you agree to three days, well we don't need the other nine.
PN2248
Well, that's because the workers are saying you don't need the other nine and you don't need the other three and the same thing was with respect to a shot firer as well and the shot firers actually don't even work on the Monday. So we say that's another irrelevant factor that's to be taken into account. At the end of the day they don't really need it and its likely, and we say this is possible to fall from the evidence, they really only want employees to work every public holiday is to position them to get them to work three because you can't have it both ways, you can't say we have to schedule work on a public holiday, but hang on, if you agree to work a day in April we don't need you to work on a public holiday in June, October, you know all that sort of stuff or the ones that fall on a Monday.
PN2249
So we ask the Commission to find in our favour and find yes to all the questions and the remedy that we seek - and in finding in our favour that should resolve the dispute we would say. But I do want to finish off by addressing your concern, Commissioner, about well - if I can understand what the concern is and that is if the Commission finds in our favour today and finds yes to the questions, something might happen tomorrow which may mean it's reasonable for them to request it.
PN2250
THE COMMISSIONER: No, my point was that if I was to find the circumstances of the company and the industry and the rest of it made it reasonable, but the current group of employees also had a reasonable reason to refuse, what happened when the group of employees changed or their personal circumstances changed within the group that exist now?
PN2251
MR ENDACOTT: Yes, and that's a question that's impossible to answer without knowing the exact circumstances (indistinct).
PN2252
THE COMMISSIONER: I'm good at asking them, I'm not sure whether I could answer it myself.
PN2253
MR ENDACOTT: The only point I can concede is we are asking you to find based upon the facts that exist now. I mean it could happen that there is a flood tomorrow and the company is that far behind in blasting that they get an exemption and they want to ask people to work and those facts may be reasonable but we say on the facts that exist at the moment the request isn't reasonable and it really is a test where it's hard to speculate in the future. They issued a roster, they have issued a roster that says forever and a day you've got to work your public holidays and we say that's unreasonable and the guys refusing that's reasonable and we're asking the Commissioner to find on the circumstances that are presented before it because - and this goes without saying but you would be aware of the admissions that were made in evidence and that is part of it was that the company - when I was cross-examining them about well, you don't know in 2015 whether or not you need them, if you recall?
PN2254
THE COMMISSIONER: Yes.
PN2255
MR ENDACOTT: The company wasn't clear that they (indistinct) likely, we've got to see what the - you know, we've got to see what's the time and I didn't go into that but it goes without saying we would say that if you've got this request going out to 2015 that you're required to attend on a public holiday and you don't even know what the circumstances are going to be in 2015, then the request by its nature has to be unreasonable. And that is another factor that we say should be taken into account, and I'll just say this in - - -
PN2256
THE COMMISSIONER: Closing?
PN2257
MR ENDACOTT: No, no, I've closed, Commissioner, I should say, thank you.
PN2258
THE COMMISSIONER: Mr Warren.
PN2259
MR WARREN: Commissioner, section 114 of the Act anticipates that employees in certain circumstances will be requested to work on a public holiday. It is simply a misconception of that statute for my friend to say 114 gives the employee an absolute entitlement to have a public holiday off. There is only one way to construe 114 and that is it sets up an entitlement and then it allows an employer to request an employee work on a public holiday if the request is reasonable and then it tumbles down from there. I will come back to that. The CFMEU puts forward - indeed runs their case on the premise that any reason to refuse to work on a public holiday is a good reason.
PN2260
You will note from the evidence that was tendered on behalf of the CFMEU in every case, in every case there is a letter attached which is the letter dated 18 December 2012. It starts off with the premise that the employee is not going to work on the public holiday and refuses to do so. The letter then goes into in general terms and is somewhat repetitive as to the amount of overtime the people are required to work, that the request is a demand not a request and speaks in very general terms of the employees' desire not to work on the public holiday. At no stage, at no stage of that general letter are the employees' particular circumstances dealt with as to why they are saying they can't work on a public holiday.
PN2261
The entire thrust of that letter is, we say in essence, the CFMEU says that Monday to Friday workers don't work public holidays and these employees will not work on the public holidays. The letter of 18 December does not we say in any way address the requirements of section 114. Indeed when one looks at section 114 and we have referred to this in our written submission and I don't repeat what is put there, but it is clear that the employer is permitted to request an employee work on a public holiday, 113.2. 114.3 then posits the situation if that request is reasonable or indeed then allows the employee to put that the request is not reasonable and therefore a refusal, or if the request is reasonable that they may refuse if the refusal is reasonable. Then 114.4 sets out the instances in the statute that must be taken into account to determine whether either the employer's request is reasonable or the employees' refusal is reasonable or otherwise.
PN2262
Your Honour would be well familiar with these sort of check lists. There's one the Commission regularly runs through in unfair dismissal provisions. So it is obligatory that the parties must test the reasonable or otherwise against 114.4. My friend says that 114 and indeed the statute is the entire code as it were, my word not his, code, that the Commission must determine this on and the enterprise agreement has no work to do. He has cited to you this morning the provisions of section 55. If one looks to section 55 of the Act which deals with the interaction between the national employment standards and a modern enterprise agreement it clearly posits the situation that there is an interaction and that the Commission should properly take notice of that interaction. In other words for example in 55.4, relevantly the words say, "An enterprise agreement may also include the following kinds of terms, terms that are ancillary or incidental to the operation of an entitlement of an employee on the national employment standards, terms that supplement the national employment standards," et cetera.
PN2263
There is nothing in this enterprise agreement which attempts to override the national employment standards. It would be wrong to suggest to this Commission that the national employment standards or that we are indeed submitting to the Commission that the enterprise agreement subsumes or overtakes the national employment standards. But clearly the enterprise agreement has some work to do. Clearly the enterprise agreement we say sets out certain terms and conditions that this Commission can properly consider in determining whether the request was reasonable and further what's more whether the refusal is reasonable. I note particularly in section 114, just before I go to the agreement, it speaks in terms of in 114.4, "The nature of the employer's workplace or enterprise, including operational requirements and the nature of the work performed by the employee in (indistinct) whether the employee could reasonably expect the employer might request work on a public holiday, whether the employee is entitled to receive overtime payments or penalty rates, other compensation," or D, remuneration that reflects an expectation of work.
PN2264
Clearly section 114.4D anticipates that there may or may not be an enterprise agreement or an award which proscribes for example overtime payments. In E, the type of employment of the employee. The type of the employment of the employee is determined by the enterprise agreement among other things. Bearing that in mind one then goes to the enterprise agreement and I know my friend has referred to the enterprise agreement found in Mr Drayton's. I have marked up that which is found in Mr White's statement and it's MSW1 to Mr White's statement. First of all I'm looking at the bottom numbers of the page, page number 6 at the top. In the preface Mt Arthur Coal Enterprise Agreement 2011 is a comprehensive package, and noted cross-examining both Mr Thompson and Mr Drayton that their signatures appear in that document.
PN2265
At page number 7 under the heading, "Rosters," "Monday to Friday roster, roster whereby an employee is required to work only on Monday to Friday," that's a relevant provision. In the hours provision further down on page 7 under the heading of, "Rostered hours." "Rostered hours, ordinary hours of work and rostered overtime equivalent to an employee's shift length," that is a relevant consideration. Over the page at, "Public holidays," "The day on which a recognised public holiday as listed in clause 14 public holidays is observed." Then over the next page at page 9, virtually the whole of clause 2 the agreement purpose it speaks of increase in operational efficiency at Mt Arthur Coal operation, reduce the overall costs of production. The next sub-paragraph of the agreement defines the terms and conditions on which the employees and the company are to work and operate. (Indistinct) on structural efficiencies obtained under previous enterprise agreements. Implementation of agreed flexible work practices. Obtain increased flexibility and the use of labour. Achieving greater efficient. All of those elements are found within the agreement and are relevant to this consideration.
PN2266
In 5.1 on page 10 the third paragraph, "It is agreed that the company can take advantage of and implement changes to work practices, procedures and systems as a result of technological developments, innovative ideas or operating excellence recommendations that will improve efficiency, productivity, profitability and safety. In such circumstances the company shall consult with employees on the proposed changes." There was clear consultation between the company and the employees with respect to these changes. Over then to page 15, "Roster arrangements." Monday to Friday roster, four 12 hours fixed day shift. That is the shift. My friend spoke of these people not working shift, they are working shift and I will come to that in a moment further with respect to the Act, but it's a four by 12 hour fixed day shift.
PN2267
Further down at 9.4.3 employees allocated for one roster type, another roster type, given 14 days notice of such roster change. That occurred. Further over to page 20 and clause 14, the public holiday clause. It speaks of the recognised holidays and what they are in the second part of that, (indistinct), "Employees are rostered on to work on these public holidays, will receive payment in accordance with 14.3, rostered on means when the employee's shift commences on the public holiday." 14.2 deals with Christmas Day and Boxing Day which are two days which are non-rostered days. 14.3, "Employees who are rostered on and work on a public holiday will be paid at treble time for all hours worked." There is a clear indication and a provision in the agreement that people may be rostered to work on a public holiday and when they do work on that public holiday they would be paid triple time and once again of course one refers back to section 114.4D of the Act.
PN2268
Continuing in 14.3, "Employees not required to work on a recognised public holiday will be paid the length." In other words the agreement anticipates that in accordance with the terms of the agreement that employees may be rostered to work on a public holidays, when they are rostered to work on public holidays to be paid triple time and they may not be required to work on a recognised public holiday and it provides for the provision there. The new provision that was inserted in the 2011 agreement which was different from the 2008 agreement is found at the end of 14.3 which deals with the requirement for the employee to work the day before and day after public holidays to be so paid. Then 14.4, "The notice of holidays to be worked. At the commencement of the agreement (indistinct) nominate which public holidays shall be worked."
PN2269
And it says, "Provided (indistinct) worked on the two such holidays being Christmas Day and Boxing Day. If the company decides not to work on a public holiday so nominated the company shall give the employees at least four weeks of notice of such decision." I will return to that provision when considering the particular position of the shot firers in particular. So Commissioner we say clearly the enterprise agreement contemplates and provides for and allows employees to be rostered to work for 12, Monday through Friday. It provides for employees to be rostered to work on a public holiday. It sets out the agreement between the parties of the need for efficiencies and flexibilities and the parties specific agreement to that goal and it provides for what happens if a person is rostered to work on the public holiday and not rostered to work.
PN2270
Nowhere in that agreement does it say that employees who are four by 12 shift workers working on a fixed day shift Monday through Friday will not be required to work on a public holiday or will not be requested to work on a public holiday or are not permitted to work on a public holiday. Nowhere does it say that. We say that is significant for the purposes of your considerations in this matter. If I could just now briefly turn to some of the employer evidence for indeed that evidence clearly establishes, we say, the need and the reasonableness of the request that these employees work on the public holidays. You will recall we're talking about two different types of employees. There is the maintenance employees and there is the shot firers.
PN2271
THE COMMISSIONER: Yes.
PN2272
MR WARREN: The maintenance employees particular evidence was given by Mr Seears. His evidence was principally at exhibit MAC5. I draw the Commission's particular attention to paragraph 12. I won't read it in detail but it speaks of the evolution of the need for certain work to be done at certain times with respect to maintenance schedules. It speaks of the difficulty in rearranging the schedule, particularly on short notice. It speaks of, and I quote, "For example the maintenance schedule is planned so there is only one major dig unit undergoing short term maintenance at one time in order to minimise disruption in the mining operations. If maintenance work is not carried out on the machine on scheduled day it will need to be moved to a different day and then another machine is already scheduled to undergo maintenance work."
PN2273
You will recall, Commissioner, the evidence that the maintenance work on one particular piece of equipment which I'll come to is done on a Thursday and that is the day it's allocated, it must be done every week on a Thursday and if it isn't done on that Thursday it then has to be moved to another day and another piece of equipment would suffer. The evidence is clearly there that the capital items of equipment that the company is using now have significantly increased from when (indistinct) established and as a result of this significant increase that there is a need to specifically roster when those pieces of equipment will be maintained. Mr Seears then speaks at paragraph 15 of why the four by 12 roster was chosen as the preferred option for several reasons. In A he speaks as I've indicated that 12 hour shifts can be more efficient to eight hour day or afternoon shifts.
PN2274
B it talks of the reduction in the number of hand overs required, and C speaks of having 12 hour shifts is more conducive to the work management requirement as supervisors and field maintenance workers are provided with more time on each shift to view approved and close off maintenance work. In D the four by 12 roster reduces reliance on voluntary overtime hours. Under the previous roster it was difficult to predict with certainty which workers were able to work overtime hours and how many hours they would be able to work. In E he speaks of having two crews work on a four by 12 roster, mean that both crews will overlap work on Tuesday, Wednesday and Thursdays. This means that Mt Arthur Coal can schedule a major drill plan component replacement on Tuesdays and Wednesdays each week which were only previously conducted by contractors during major shut down periods. I mean here the company is employing direct employees and they need to employ those direct employees to do specific maintenance instead of contracting it out during major shut down.
PN2275
He goes on to say, "It bolsters our numbers to (indistinct) from Thursdays which is a major outage each week." In 17 Mr Seears speaks of, "All maintenance workers who are rostered to work have maintenance work scheduled for them and they cannot be taken away from these duties without causing major interruptions to their schedules. Maintenance workers have training and competencies that are specific to the equipment that they work on," and he speaks of how (indistinct) maintenance works from other areas (indistinct) to be asked to undertake that work carried out by the field maintenance workers. He further says in C, "Relying on volunteers from other maintenance crews to work on public holidays still does not provide Mt Arthur Coal with the assurance there will be sufficient numbers."
PN2276
Mr Seears, his assertions there are challenged and he gave extensive evidence which I will not read in detail but I will refer the Commission to, paragraph in transcript 1823 through to 1850 and then following. You will recall that Mr Seears gave telling evidence as to the need for him to have confidence that the persons that are rostered to work have both competence, experience et cetera on particular pieces of equipment otherwise he would need to buddy them up with someone else. He gave evidence of his knowledge of each individual person and gave telling evidence in that regard we say. He gave evidence as to how he formed opinions as to whether persons were competent or otherwise to work on particular pieces of equipment and he was not shifted on that.
PN2277
THE COMMISSIONER: I think he went through 112.
PN2278
MR WARREN: Yes, and that evidence is found, Commissioner, following PN1850 and it goes on and on. I won't take the time of the Commission, I am sure you are quite capable of refreshing your memory on that. But in any event the essence of Mr Seears evidence is that particular pieces of equipment need to be maintained on particular days. You can't just shift that around, you need particular employees to work on that equipment and those particular employees are rostered accordingly. If that day happens to fall on a public holiday the company's clear position is it's reasonable to expect that the employee would work on that day to maintain that piece of equipment for they know well in advance that the program of maintenance, the requirement to maintain those pieces of equipment and that their roster requires that they work on that piece of equipment and they know full well in advance when that public holiday is going to fall.
PN2279
Mr Seears continued at paragraph 26A, "In relation to public holidays the operational requirements and structured maintenance schedule make it important that planned maintenance work is carried out regularly and consistently with major maintenance work occurring on Tuesdays, Wednesdays and Thursdays," et cetera, "although it was important to Mt Arthur Coal that all public holidays were worked on Monday to Friday." Then they considered the consultation work and he was explaining why they were attempting to negotiate Tuesdays, Wednesdays and Thursdays. My friend seems to gain some comfort from that, that that means they really don't need to work Mondays and Fridays, that's not the case at all, but the majority of work occurs Tuesdays, Wednesdays and Thursdays and indeed that is when the two crews overlap. He then in paragraph 32 his evidence, "Mr Crossley, union delegate, came to see me and said words to the effect we're definitely not going to work on public holidays." So just a blanket refusal.
PN2280
In 39 he gives evidence that, "No employee from among the field maintenance workers notified Mt Arthur Coal was prepared to work on the Australia Day public holiday on Monday 28 January." Irrespective of this capacity to call for volunteers no one put their hand up to work on Monday 28 January. He speaks of in 51C, "The four panel roster works on selected tasks rather than volume work which is performed in service and equipment in the day shift." In paragraph 55 he speaks of in response to the statement of Beau Jackson he says that at no stage did Mr Jackson approach him about his concerns in relation to the four by 12 roster and he gives that clear evidence and he denies another particular conversation with Mr Jackson.
PN2281
Commissioner, the company's position with respect to certain employees seeking special consideration or indeed putting forward what they would claim to be a reasonable refusal and the general evidence of all of the employees concerned has been considered further by the company. It was not until these proceedings commenced that the company had any specific evidence from any of the employees with respect to the reasons why they personally had refused to work on public holidays. If I could hand up a document please. This document is headed, "Outline of employee reasons for refusal and company position." It in the company's view sets out certain evidence of each of the employees either statement or then continued cross-examination where relevant with respect to the reasons to refuse to work on public holidays and each one you will note starts with the general refusal to work on public holidays and that is consistent with the letter of 18 December 2012.
PN2282
We hand this up as an aide memoir for the Commission without the need to take you to each one of those particular statements, but it is significant that with respect to Mr Collard on the first page, Mr Smiles on the second page and Mr Jackson on the fourth page, the company have given an indication with respect to their refusal to work with respect to Mr Collard that they now have been given evidence with respect to why Mr Collard says he is unable to work on Anzac Day this year. Mr Smiles as to why he is unable to work these coming Easter public holidays in 2013 and why Mr Jackson is unable to work on the Easter public holidays in 2013. Having considered those reasons the company have agreed that in these circumstances and as to the reasons outlined by the employees that those particular public holidays and the reasons why they are unable to be worked is a reasonable refusal in terms of section 114 and would not be requiring those employees to work on those public holidays, with respect to all other employees the company position is their refusal is not a reasonable refusal and so states in that document.
PN2283
THE COMMISSIONER: Do you wish this document marked?
PN2284
MR WARREN: Yes, please, Commissioner.
PN2285
MR ENDACOTT: I don't know the nature of the document. I'll obviously mark that, I'll pass that concerns off to those individuals.
PN2286
THE COMMISSIONER: The nature of the document is this is the assertion by the employer as to what falls from - - -
PN2287
MR ENDACOTT: The evidence, yes.
THE COMMISSIONER: - - - the evidence and the individual circumstances elaborated upon by the witnesses and the non-witnesses whose statements were put into evidence.
EXHIBIT #MAC6 DOCUMENT
PN2289
MR WARREN: Thank you, Commissioner. I interpose that at the stage of Mr Seears evidence as he referred to Mr Beau Jackson and his statement and that is the company's response to that. If I then take the Commission back to the evidence of Mr Margetts. Mr Seears dealt with the maintenance side of things, Mr Margetts dealt with the shot firers. Can we say from the outset that the company does not require shot firers to work on a public holiday to fire a shot. There may be a time in the future where they get special permission to fire a shot but let us be very clear that the case as it sits at the moment, the company do not require shot firers to work on public holidays to fire shots, contrary to what my friend is saying. There is far more work for a shot firer to do than just fire the shot. There is a great deal of preparation work to be done and after shot firing to be done and that work the company says clearly may be required to be worked on a public holiday. There are two situations here, Commissioner.
PN2290
There is the situation with respect to the maintenance people where there is program maintenance and there is a need, an operational need we say clearly established for them to work on a public holiday as rostered. With respect to the shot firers the evidence is clear that the principal concern of the company is the working of the shot firers over the Easter period where there are a number of public holidays between Good Friday and through to Easter Tuesday inclusive. The shot firers are not required - these particular ones in this case - are not required to work on Mondays and so the question of Easter Monday does not arise.
PN2291
THE COMMISSIONER: What arises, Good Friday?
PN2292
MR WARREN: Good Friday and Easter Tuesday which is a union picnic.
PN2293
THE COMMISSIONER: Is it?
PN2294
MR WARREN: Which is an additional public holiday and the company's clear evidence is that if shot firers don't work i.e. preparing shot et cetera between Friday and Tuesday then there is a real risk the product will be unavailable for the use of equipment to clear that product, whether it be over burden or with coal.
PN2295
THE COMMISSIONER: Could I just ask you a question.
PN2296
MR WARREN: Yes, Commissioner.
PN2297
THE COMMISSIONER: You refer to Easter Tuesday, that's the union picnic day is it?
PN2298
MR WARREN: Yes.
PN2299
THE COMMISSIONER: Is that in substitution for another public holiday or is it just - - -
PN2300
MR WARREN: An additional public holiday, it's a public holiday with (indistinct).
PN2301
THE COMMISSIONER: So it's not a public holiday is it?
PN2302
MR WARREN: It's referred to - - -
PN2303
THE COMMISSIONER: It's the union picnic day.
PN2304
MR WARREN: I think it gets a guernsey, Commissioner, just a moment I'll turn to the agreement.
PN2305
THE COMMISSIONER: Sorry, as I said before it's easier to ask the question than to find the answer.
PN2306
MR WARREN: Easter Tuesday is a recognised holiday as a public holiday in the agreement.
PN2307
THE COMMISSIONER: Very well.
PN2308
MR WARREN: Here again - - -
PN2309
THE COMMISSIONER: It's not a public holiday.
PN2310
MR WARREN: It's a public holiday in the agreement, it recognises - - -
PN2311
THE COMMISSIONER: It's specified in section 115.
PN2312
MR WARREN: Well, Commissioner, that's where with my friend's argument that the agreement doesn't apply and should have no bearing on these deliberations comes to some - because if one looks to 115 of the Act, B, "Any other day or day declared or proscribed by or under a law of a state or territory to be observed generally within the state or territory or a region of the state or territory as a public holiday other than the day or day (indistinct) excluded in the regulation (indistinct) holiday."
PN2313
THE COMMISSIONER: It's still not a public holiday. It's a union picnic day.
PN2314
MR WARREN: It happened to be a union picnic day, it's not set out in the agreement as union picnic day, it's set out as Easter Tuesday.
PN2315
THE COMMISSIONER: Yes, and section 115 of the Act says, "Meaning of public holidays." And one doesn't find union picnic day.
PN2316
MR WARREN: If that were the case, Commissioner, the company would be comforted.
PN2317
THE COMMISSIONER: I'm asking a question, I'm not giving a definitive answer as well as answering the question, but Mr Endacott is forewarned that he might have to tell me something about that in his reply.
PN2318
MR WARREN: It's certainly been considered by the parties as part of this dispute if as Mr Endacott has insisted that 114 prevails it is not a public holiday in the terms - - -
PN2319
THE COMMISSIONER: On the face of 115 it's not.
PN2320
MR WARREN: On 114 and 115. It certainly isn't a substitute for a public holiday. I'll proceed.
PN2321
THE COMMISSIONER: Yes.
PN2322
MR WARREN: So Mr Margetts gives evidence at paragraph 4 that he engages the blast crew, sorry at paragraph 11 he speaks of the underlying reason for the move to the four by 12 roster was to maximise the time during which blasting operations, including preparation of the blasting can be conducted and to achieve greater efficiency. He gives this reason that when blast crew were working the five by nine roster there were several hours of daylight remaining that were not utilised. The trucks provided by Orica were on site but not able to continue with blasting operations during the remaining hours once the blast crew had finished its shift. Move to the four by 12 allowed for continued operations over the four day period. The blast crew was finishing I think about three o'clock and the Orica trucks are there through to I think about 5.30.
PN2323
In paragraph 12 a decision was also made to require workers on the four by 12 roster to work on public holidays that fell on their rostered work days. During public holidays although shots cannot be fired the blast crews were able to load shots in preparation for firing a shot. Many activities occur outside of firing a shot. And he goes into those activities. He speaks of a business risk blasted in paragraph 13 fluctuating over a period of time during the three public holidays over Easter and he speaks of including miners picnic day with further reduced blasting capacity. He then refers in AM4 to the spreadsheet of public holidays and I won't take the Commission specifically to it but you will note that certain highlighted areas are the public holidays that would be required to be worked and there is only three or four of those public holidays during that period. He speaks of the need importantly for working and the flexibility in C.
PN2324
In 14, "Although a decision was made to require the blast crews to work on public holidays that fell on their rostered days Mt Arthur Coal's position was and is that we consider each public holiday on a case by case basis. Public holidays coming up to the (indistinct) inventory and not behind schedule will not request the blast crew workers to work on that public holiday." This is consistent with the agreement which says give a month's notice we don't require you to work on a public holiday. So the real issue - a significant issue and an immediate issue is the Easter public holiday period, but the company have undertaken and would continue to do so and it would be entirely consistent with the provisions of section 114 for them to make an assessment. They said they will make that assessment some months out and say look, we don't need you on a particular day that might fall as a public holiday between the Tuesday and the Friday. He also gave evidence at paragraph 16 as to at the time the blast crew workers were engaged they were informed that they would commence work on the five by nine roster but eventually move to the four by 12 roster.
PN2325
That is important, Commissioner, because indeed the blast crew that we're speaking about here was specifically recruited to work the four 12's. When they commenced working they commenced on the five nine's and they moved to the four 12 and there is indeed with respect with that there is evidence - my friend has taken the Commission to the evidence of Mr Leadley. Mr Leadley's evidence was exhibit CFMEU8 and indeed if I could just briefly take the Commission to it. In paragraph 7 he is speaking in approximately May 2012, "I was informed that the roster for the shot firers worked Monday to Friday five nine hour shifts. I was informed the respondent was thinking including a 12 hour shift roster. When asked what my experience of 12 hour shifts and what I thought was the best 12 hour shift arrangement."
PN2326
He there asserts he was not required - he was not told then that he was required to work on public holidays and that assertion is indeed entirely consistent with Mr Botha's evidence because the decision at the stage had not been taken. In paragraph 11 Mr Leadley says, "I commenced employment with the respondent on the nine hour Monday to Friday roster, I was not required to work on the public holidays that fell after I commenced employment. Employees moved to the 12 hour roster," and I interpose there to say none of the shot firers who worked the nine hour Monday to Friday roster at the moment are required to work on public holidays. He then says at 12, "I can't recall the date, I was informed I'll be moving to 12 hour shifts. On 22 November I received correspondence from Mr Margetts, manager of shovels and contract mining informed me of a change of work hours.
PN2327
The correspondence informed me I would change my roster of four 12 hour fixed day shift, this included work on public holidays that fall within the roster." That if the Commission were to turn to the various attachments of Mr Leadley, annexure DL1 was his initial offer of employment and it speaks of (indistinct) shot firer. "This offer is subject to the terms and conditions set out in the attached terms and conditions of employment and in accordance with the Management Arthur Coal Enterprise Agreement 2011. (Indistinct) to clarify any of the terms and conditions of the employment condition," et cetera he says who to speak with. That was dated 1 June. One of the terms and conditions of employment was (indistinct) under hours of work he'll be deployed in the mining department according to the Mt Arthur Coal Enterprise Agreement 2011. "The roster arrangements and shift (indistinct) will vary and it’s a condition of your employment that you will work roster and shift arrangements as required by Mt Arthur Coal, as an employee may be required to give reasonable overtime at the company's discretion."
PN2328
Then at annexure DL3 - he has been given this document which my friend has already referred to with respect to earnings. It is significant that at that time they were not required to work on public holidays and so therefore it wasn't built into the calculations. He then on 22 November 2012 which is attachment DL3 under the heading of, "Change of work hours," confirmed the change of roster to four by 12, fixed Tuesday to Friday day shift, this will include work on public holidays that fall within the roster as outlined in section 14 of the Mt Arthur Coal Enterprise Agreement. So yes, Mr Leadley didn't commence work on the four by 12s initially, he started on the five 9s and then in accordance with his understanding he moved to four 12s when the company required that and it was done in accordance with the agreement which he was employed under.
PN2329
In paragraph 17 - I've already referred the Commission to that. Then on paragraph 21, "On 15 November held a formal meeting with the affected blast crew workers. During my presentation I emphasised that each public holiday would be considered under a case by case basis and we would consider the business needs a few weeks before each public holiday to decide whether it needed to be worked." 23, "During the presentation I explained that there would be discretion around personal individual needs, that an employee who could not work on a particular public holidays would be considered on a case by case basis. During the presentation none of the blast crew workers indicated or stated any reasons for their refusal to work on public holidays." He then gives evidence of just abject refusal. In 27, "The workers did not raise any issues at this time to indicate any reasons for refusing to work oh public holidays." And that is reinforced at paragraph 32.
PN2330
Then there is the evidence of Mr Botha is largely responsive to the various statements of the employees and takes it no further than Mr Margetts and then the evidence of Mr White at exhibit MAC2 indicates he is the general manager of Mt Arthur Coal. He indicates that a copy of the relevant enterprise agreement was provided to each employee at the time that he or she was issued with a letter of offer and he sets out what that was. He talks about the negotiation of the agreement. There was no discussion about imposing any additional or other restriction in paragraph 18 on the ability of Mt Arthur Coal to require its employees to work on public holidays except the Christmas Day and Boxing Day public holidays. He then speaks of the operational requirements in paragraph 19, I won't read them out.
PN2331
It's clear that the Commission can refresh its memory on those. He then speaks of the decision being made at paragraph 20 to recruit the new employees on a four by 12 roster. He speaks of further operational reasons in paragraph 22 and in paragraph 22E he gives evidence of two previous occasions being involved in a question to blast crew workers to work on public holidays when we had low inventory levels. This occurred in Easter 2010 and early 2012. On each occasion the blast crew workers were only willing to work on public holidays if they received triple time in accordance with the agreement as well as an extra day off in lieu. If they did not agree to such arrangements it was not provided for under the agreement. There is clear evidence that the employees indeed were willing to work but they wanted quadruple time in essence for doing so.
PN2332
Then in 23, "Due to these reasons it was decided that under the four by 12 roster blast crew employees would be expected to work on a public holiday, the (indistinct) roster from the start the position at Mt Arthur Coal has been that it would consider each public holiday for the blast crew worked on an operational basis about a month prior to the public holiday." He then in 24 gives evidence of certain crews currently work Monday through Friday and who work on public holidays and I won't repeat it, but it's found at 24A, B, C, D, E and F.
PN2333
THE COMMISSIONER: I'm not seeking to limit you, but how much longer do you think you'll be?
PN2334
MR WARREN: Probably another half an hour, Commissioner.
PN2335
THE COMMISSIONER: I think we'll break. Is this a convenient time to break in your - - -
PN2336
MR WARREN: Certainly. I might be shorter, but I'd estimate about half an hour.
PN2337
THE COMMISSIONER: Come back in one hour.
<LUNCHEON ADJOURNMENT [12.44PM]
<RESUMED [1.47PM]
PN2338
THE COMMISSIONER: Mr Warren continuing.
PN2339
MR WARREN: Thank you, Commissioner. Just prior to the luncheon adjournment I highlighted parts of the evidence that we say is relevant and appropriate to lead to a consideration of the reasonableness of the employer’s request to work certain public holidays. The legal principles that the commission need apply are contained within our written submissions through paragraphs 6 to 13. I don’t repeat them.
PN2340
THE COMMISSIONER: Good. Thank you for that.
PN2341
MR WARREN: Can I say this? The agreement was subject to approval, clearly, by the commission and was approved. We say the terms and conditions in that agreement are prima facie reasonable in the circumstances that may require an employee to be rostered to work on a public holiday in accordance with the reasonable roster, in accordance with the reasonable request of the employer and in accordance with the reasonable needs of the employer. We say that both Mr Thompson and Mr Drayton, the commission will note, in cross-examination agreed that the terms of the agreement were reasonable, and we say further that the agreement should be read in conjunction with section 114 and is entirely appropriate that it be done so and be consistent with section 55(4) of the Act.
PN2342
With respect to then applying the evidence as it stands to section 114(4), firstly looking at it in terms of whether the request was reasonable, 114(4)(a), dealing with the nature of the employer’s workplace or enterprise, clearly we say the nature of the employer’s workplace and enterprise necessitates for flexibility, efficiency and simply good operation, that the request would be reasonable that a person, an employee, would be requested to work overtime, in the case of the maintenance persons Monday through Friday to deal with programmed maintenance and in the case of shotfirers Tuesday through Friday, to prepare shots for firing on the day following a public holiday. We say that the evidence is clear and compelling that that request would be reasonable.
PN2343
114(4)(b) is not relevant with respect to the employer’s request. 114(4)(c), yes, the employee could reasonably expect that the employer might request work on a public holiday. One only has to look to the consultation process that occurred in October and then into November of last year and the indication clearly from the employer that if a public holiday fell on the employee’s roster and that public holiday was within that roster, then they may be required to work on that day and the differential in advice given to the employees between the maintenance persons and the shotfirers – so they could reasonably expect to be requested to work on a public holiday and the notice would have been substantial. The type of employment of the eligibility in (e), these employees concerned are full time and they are shift workers.
PN2344
My friend referred to the public holiday provisions of the Fair Work Act and in particular 87. 87(3), with respect to an additional week’s annual leave, is considering a particular type of shift worker. It does not say this is the only type of shift worker. It merely says that if the shift worker works on particular shifts then that shift worker would be entitled to an additional week’s public holiday. It is clear under the enterprise agreement that the concept of a four-day, 12-hour day shift worker is both contemplated and provided for in the agreement. The amount of notice in advance of the public holiday given by the employer I’ve already put submissions with respect to that, in 114(4)(f). The notice is substantial and the employer, what’s more, with respect particularly to the shotfirers, has indicated it would reassess the matter approximately four weeks out from each public holiday.
PN2345
In relation to the refusal of a request, that’s with respect to the employee’s position. Now, once again going back and applying 114(4) to the employee’s refusal, the nature of the work performed by the employee, 114(4)(a), the nature of the work is full-time work, it is work that is necessary for either the essential programmed maintenance or it is necessary as and when required with respect to shotfirers. The personal circumstances, there were no personal circumstances given prior to this case commencing before this commission. So the employer could not be held to say they unreasonably required the employee to work and that the refusal was reasonable when the employee’s personal circumstances were not explained prior to this.
PN2346
What we have with respect to the three particular employees that we’ve highlighted in exhibit 6, the company have agreed that that was a reasonable refusal with respect to the ANZAC Day in 2013. It fully understands that a father may with to take his daughter to a dawn service that she wished to attend and march in 2013, but that was not known until these proceedings commenced. With respect to the employees Smiles and Jackson, they have now given evidence that there has been, in essence, a family reunion, either at Byron Bay or in the country area with respect to Mr Jackson. Irrespective of the fact that both of those employees were aware that there was a requirement on their part to work on the public holidays, being Easter, the company, having considered the situation, have agreed that their position is different from and is a reasonable refusal and was done with concern to them not being required.
PN2347
All the other employees either have, you know, “I want to spend more time with my family.” Well, what employee doesn’t? “I want to go weight boarding,” or, “I need to go shooting,” or, “I need to go camping,” or whatever the case might be, they have had adequate notice of this situation and, what’s more, they have had adequate reasons given to them by the employer of the need to work the overtime. Indeed, in the case of shotfirers it’s only an additional, it would appear, three days per annum that they would be required.
PN2348
What’s more, we then go to the situation of the union attempting to make some significant mileage out of the amount of time these persons are working overtime. Working overtime on the public holiday on their roster is no extension to the actual number of hours they are working or required to work under the roster. They’re getting paid more money for it, triple time for the public holiday, but it is not an extension of the number of hours that they are working that they would normally be required under their normal roster.
PN2349
In 114(4)(c) I’ve already addressed the issue of the reasonable expectation. 114(4)(d), they are entitled to receive overtime payments. That’s one of the checks that is required by the Act. Indeed, the overtime payments are significant and they are in the order of triple time. Type of employee, whether they be full-time, I’ve already addressed that. The amount of notice, I’ve already addressed that. In relation to refusal of request, the amount of notice in advance, I’ve already addressed that.
PN2350
Commissioner, we say it is clear that there has been a compelling case put by the employer in this circumstance that there is a real
need for them to require these employees as nominated to work on the public holiday and there has been scant – scant –
evidence put as to the reasonableness or otherwise of such a refusal on the part of the employees. Indeed, when dealing with the
evidence Mr Crossley even gave evidence of a concern of some of the members that the four-day roster was going to exclude them from
working overtime on a fifth day, which as an aside appears to be entirely contrary to the thrust of the union’s core submission.
With respect to the union’s submissions, and in no particular order, I’ve already indicated with respect to their submission
and the NES that the agreement does not attempt to exclude the NES but indeed works in conjunction with it. My friend dealt with
shotfirers not needing to work on the Monday public holiday at one stage but then later in his submissions he indicated that he understood
that they were not required to work on Mondays in any event. So that really isn’t an issue. It’s important to note
that the shotfirers concerned in this particular dispute were particularly recruited to work four 12s Tuesday through Friday, that
they were informed of that when they were first employed although they didn’t initially go onto that four by 12 roster in the
first instance. No-one – I repeat no-one – has been forcibly transferred to the four by 10 roster.
PN2351
Indeed, I think the evidence is that two persons were excepted from that consideration to go on the seven-day shift roster because of their particular skills, and one particular witness, Mr Smiles – no, it wasn’t. Mr Clark actually applied for work as a seven-day 12-hour rotating roster worker, knowing that he would be then required to work on public holidays, and was not selected to work the seven-day rotating roster because of his particular skills and experience, but that may change as his skills and experience develop. He’s here complaining that he shouldn’t be required to work on a public holiday Monday through Friday, yet his very application in the first instance was to work a seven-day rotating 12-hour roster which he understood he would be required as a matter of course to work on a public holiday.
PN2352
There was evidence given and cross-examination on the point with Mr Thompson and Mr Drayton with respect to the – what was put to them was their misconception of the enterprise agreement prohibiting work for a Monday to Friday worker on a public holiday that fell during Monday to Friday. It was put to those two witnesses that indeed there was a provision in the modern award that indeed prohibited employees who worked Monday to Friday from working public holidays that fell between the Monday to Friday, yet that was not repeated in the enterprise agreement. It was put to them and it is our submission that that is significant, that that is clearly an intention within the enterprise agreement that that provision be allowed, which provision was varied from the award and which provision in the enterprise agreement was agreed between the parties and accepted as appropriate by the commission.
PN2353
THE COMMISSIONER: Mr Warren, can I ask a question?
PN2354
MR WARREN: Certainly.
PN2355
THE COMMISSIONER: It might be a naive question. My notes of what has been going in say the shotfirers don’t work Mondays.
PN2356
MR WARREN: That’s correct. These particular shotfirers don’t. There are shotfirers that work five nines who work on Mondays.
PN2357
THE COMMISSIONER: No, this group is the matrix or - - -
PN2358
MR WARREN: Tuesday to Friday.
PN2359
THE COMMISSIONER: Yes. So is it true that you’d only require shotfirers possibly to work on a public holiday that fell on a Tuesday to Friday.
PN2360
MR WARREN: Would only.
PN2361
THE COMMISSIONER: Not on a Monday.
PN2362
MR WARREN: Not on a Monday, certainly. There may be a time that they may be required to volunteer for some overtime on that day but as it currently stands there is no requirement for shotfirers to work on a public holiday on a Monday, whether they be a four by 12 or whether they be otherwise.
PN2363
THE COMMISSIONER: Okay. Thank you for that.
PN2364
MR WARREN: There was play made by my friend of the examples given with respect to the earnings under the new agreement. It must be apparent that at the time the agreement was made there was no requirement at that time, although there was a provision, for four by 12 shift workers and certainly four by 12 Tuesday to Friday shift workers and no requirement at the time when the agreement was made for, further, those shift workers to work on public holidays.
PN2365
Every conceivable computation and combination of the shifts that are found within clause 9 of the agreement were dealt with – various rosters five by eight, five by nines, five by nines, four by 11, four 12s, 10 by 12s, 14 by 12s on seven-day roster, et cetera, et cetera, in 9.1 and 9.2. Not all of those were detailed so far as earnings were concerned. The ones that were detailed were the ones that were required to be worked at that time and, as we’ve already said, whilst the agreement made provision for it, it didn’t require it at that time. So, therefore, it was not an exercise that we needed to go into with respect to that. I’ve addressed Mr Leadley.
PN2366
Commissioner, that just leaves us with what we say the commission should do to determine this matter. The applicant in paragraph 9 of its submissions seeks the commission determine generally and for each affected employee the requirement. The commission may be able to give an indication as a general basis that the employer’s request to work overtime or to work on public holidays which will become overtime, Monday to Friday in the case of maintenance persons and Tuesday to Friday in the case of shotfirers, in the circumstances as the evidence has been put before this commission and in the circumstances when related to section 114 was a reasonable request, as it currently stands.
PN2367
With respect to the employees’ refusal – by its very nature an employee is an individual whereas a company might have a collective request for a bunch of people to work overtime or work on public holidays – we say it is not possible and would be contrary to the clear intention or provision of the Act that the commission give a general blanket to say in the circumstances of A, B, C an employee is entitled to refuse. It doesn’t escape and, unfortunately, cannot escape the situation that these type of questions may be raised again and again.
PN2368
The employer says that with respect to those three employees it recognises the genuineness of their refusal and has agreed that they not be required, in the case of two of them, to work on the public holidays as rostered over this coming Easter period. With respect to the other employee, with respect to him and his desire to attend the ANZAC Day march with his daughter this year, then that would seem to be a reasonable refusal. But with respect to all of the others we say there is not one common thread other than, “We don’t want to work.” We say that’s not reasonable and that’s not a reasonable refusal.
PN2369
THE COMMISSIONER: You are inviting me to make a finding in that regard?
PN2370
MR WARREN: Yes, Commissioner, being the circumstances - - -
PN2371
THE COMMISSIONER: I mean, you’ve obviously in opposition to the application.
PN2372
MR WARREN: Yes.
PN2373
THE COMMISSIONER: I’m wondering whether you just want me to absent myself from the process or to make definite findings about individuals. Mr Endacott asked me to make findings about individuals and generally.
PN2374
MR WARREN: We aren’t asking you to abdicate that situation from that responsibility, Commissioner. We are saying that on the evidence that has been presented there are three employees who appear to have a reason for refusal. The other employees, all of the other employees, the position that they now put is not reasonable in all the circumstances. If the commission is persuaded that way, it should make a finding that way. So we say there is the capacity clearly on the evidence for the commission to make a finding that the employer’s request was reasonable in all of the circumstances. There is evidence that the commission may wish to observe, that the employer’s agreement with respect to those three employees was an appropriate or was an apparent appropriate agreement. If the commission is further persuaded, it could make the finding that the other employees’ refusal was not a reasonable refusal. If the commission is not persuaded to go to that step, it should make no finding. If the commission pleases.
PN2375
THE COMMISSIONER: Before you start on your reply, Mr Endacott, I’m just a bit puzzled over the wording of para 9 of your outline of submissions. I’m sorry, are you still on your feet?
PN2376
MR WARREN: No. I didn’t know whether you were addressing me or - - -
PN2377
THE COMMISSIONER: I’m sorry. I said Mr Endacott but I must have said it softly. Mr Endacott, I’m just puzzled by the wording in para 9 of your submissions. Is that meant to say at the end, “and that any refusal on their part is not unreasonable” or am I just not reading it correctly?
PN2378
MR ENDACOTT: Paragraph 9:
PN2379
The personal circumstances of each that falls from the evidence they have given before Fair Work – compels a mandatory requirement that they work on public holidays is not reasonable and any refusal on their part –
PN2380
Yes, sorry. There is a “not” that should not be included –
PN2381
and any refusal on their part is reasonable.
PN2382
THE COMMISSIONER: Is reasonable or is not unreasonable.
PN2383
MR ENDACOTT: Yes. I apologise, Commissioner.
PN2384
THE COMMISSIONER: Let me just strike the “not”.
PN2385
MR ENDACOTT: I think it was the double negative with the “not” before “reasonable” on the first occasion and then - - -
PN2386
THE COMMISSIONER: If I was to quote you as it was you might have been in some trouble.
PN2387
MR ENDACOTT: Yes.
PN2388
THE COMMISSIONER: Okay.
PN2389
MR ENDACOTT: Now, Commissioner, I just want to respond to my friend’s submission about the evidence of Mr Seears and what he asserts is the telling evidence based on his knowledge of the skills of the persons that could volunteer to do the work. Just to briefly go to the history – because I didn’t formally address this issue in a submission. I think I’ve touched on it in the outline and in the 18 December letter but I didn’t make a submission on this point. So I can respond to what the employer says, you will recall that the evidence of Mr Crossley – and Mr Crossley wasn’t cross-examined – was that with respect to the maintenance employees it was unreasonable to require them to because there was hundreds of employees that were fitters, that were qualified tradesmen, that wouldn’t be at work and could volunteer.
PN2390
He attached to his statement a declaration. I’m not sure of the exact number of people in the declaration but it’s approximately 130. Each of them, you’ll recall, Commissioner, declared that they were a qualified tradesperson. They declared that when a public holiday falls on a day that they’re not rostered to work and under the fatigue management policy they’re able to work, that they be considered to work on public holiday should they have nothing organised. They also made a declaration that:
PN2391
As qualified tradesperson, I am competent to undertake planned and unplanned maintenance, trade duties on plant and equipment at the mine.
PN2392
THE COMMISSIONER: But that’s a matter for the employer, isn’t it? I mean, a person can assert what they want. If the employer doesn’t believe or doesn’t accept it, the employer prevails, does it not?
PN2393
MR ENDACOTT: No, not with respect to reasonableness and for this reason. It’s an issue of fact whether or not they’re qualified to do the job or not, we would say. The employer can inquire and ascertain that they could. Each of these persons, if you recall, that we volunteered, they would attend and declare this before the commission.
PN2394
THE COMMISSIONER: I remember the document.
PN2395
MR ENDACOTT: Now, Mr Seears goes through each of them and he says for many – and I think it’s based upon the notes taken. For 42 he says, “I’m not aware of the employee’s working background. So I wouldn’t use them.” Well, that’s fair enough but they’re ultimately the employer and they can go and inquire about the background. For 45 of them he says yes. For nine of them he said, “I’d put them on a selected task.” For six of them, “I would buddy up.” For 26 of them he said no. In fact, that sort of evidence supports, we would say, the position that there are people there that could do the work and volunteer to do it.
PN2396
The unchallenged evidence on this point – and I think it was from Mr Thompson – was that that’s what happens at many mines about public holidays. They just call for volunteers. So, “Who wants to volunteer to work?” Then after they volunteer, if they haven’t got enough, then they start saying, “Well, we might need people.” So nothing controversial about that. We say the evidence proves there’s lots of people that could have volunteered to do the work and that’s something that adds in our favour and the evidence doesn’t reflect exactly as it was represented by friend.
PN2397
The other point that I just want to take the commission to, because it had been raised a number of times, is this general assertion that the employees didn’t provide some sort of reason why they didn’t want to work on public holidays. Now, I know that there’s evidence of the employer that says people didn’t raise concerns but I’m pretty sure the evidence reflects that their representative raised issues. Some of the witnesses brought evidence that people did raise concerns at the meeting.
PN2398
The other thing is that on 18 December 2012 the employees’ representatives, for and on behalf of the people affected – and that was the union – wrote to the company and formally set out what all their concerns were about each of these issues that are almost in identical form as has been argued in these proceedings. They went to many of the tests that were required to be considered by section 114. So this assessment that there was some failure on the part of the affected employees to inform the employer of a concern, they wrote through their union on 18 December 2012 to the general manager of the mine and informed them. Virtually every witness endorses that letter as being their view. So there remains that point. Ultimately the evidence speaks for itself.
PN2399
Now, my friend here goes to one particular part of the evidence, and that is he speaks of Mr Clark and there’s some sort of criticism of Mr Clark, that he applied for a seven-day job, a seven-day rotating 12-hour roster job, where he indicated that he would be prepared to work public holidays in that and that when he received the Monday to Friday he somehow had some objection to working a public holiday. Well, firstly, you need to remember the evidence of Mr Clark, and that is his wife is a copper - - -
PN2400
THE COMMISSIONER: A policeman, actually.
PN2401
MR ENDACOTT: A policeman. Yes, okay, sorry, I’ve used the - - -
PN2402
THE COMMISSIONER: In fact, she’s a policewoman.
PN2403
MR ENDACOTT: Policewoman, sorry.
PN2404
THE COMMISSIONER: You’ll get yourself into trouble, I tell you.
PN2405
MR ENDACOTT: A female copper who works a 12-hour rotating roster and she’s off on maternity leave, and the reason why he wanted the 12-hour shift, as you’ll recall, was so he could fit in with his wife. So he was put on the 12-hour day shift roster. His evidence about the inconvenience was that when his wife works seven days he has got to take care of the bubs. I think, if you’ll recall his evidence, he sort of – and that definitely probably would be a breach of section 114 – said his wife is forced to work and named a public holiday. His evidence was she’s not given the choice because of the nature of her job. I can’t recall the public holiday that he mentioned. So I wanted to clear that up about the evidence.
PN2406
THE COMMISSIONER: Well, that goes to his particular circumstances.
PN2407
MR ENDACOTT: Yes, it does. The last point that I just wanted to make about the employees’ response on the 18th, the correspondence through the union from the employees of the 18th, the correspondence was comprehensive and went to virtually all of the issues that are raised in these proceedings. It identified that there were additional personal circumstances that applied to each of them and the statements bear upon that. What Fair Work Australia needs to know about the test is that the test – when you read the correspondence, Commissioner, you’ll see that that correspondence goes through each of the issues that are identified in 119(4). It does mention that each of them have personal circumstances as well.
PN2408
To represent that as the employees not providing reasons why their refusal was reasonable and not providing reasons why, if this is how it has been provided to Fair Work Australia, that the company’s request was not reasonable, it misses the point. The employer’s position misses the point of how that section is to be interpreted. I just very quickly read out from the explanatory memorandum. This appears at item 452. Listed above it just sets out what is the non-exhaustive list that has to be taken into account but it describes it this way:
PN2409
The relevance of each of these factors and the weight to be given to each will vary according to the particular circumstances. In some cases a single factor will be of great importance and outweigh all others. In others there will be a balancing exercise between factors.
PN2410
This is what the explanatory memorandum says. Now, to provide a letter on their behalf, for an on behalf, that sets out all the reasons and identifies personal circumstances does go to the exact nature of the test, completely. I also note that the example given there is the requirement for certain staffing levels at hospitals. Completely different from this environment. Other than that, Commissioner, we ask the commission to – sorry, one last point. This is the employer’s last attachment. This is the last document provided which the company purports to be some sort of a - - -
PN2411
THE COMMISSIONER: Exhibit MAC6.
PN2412
MR ENDACOTT: Yes. I understood that document to be a submission about the company’s position on what the evidence of these proceedings revealed from their perspective.
PN2413
THE COMMISSIONER: Well, that’s a question I asked of Mr Warren and he concurred.
PN2414
MR ENDACOTT: Yes. It’s just that concluded the submission on the basis” of, “This is the agreement that has been - - -”
PN2415
THE COMMISSIONER: No. He’s not trying to do that and I’ll hold him to the earlier one anyway.
PN2416
MR WARREN: It was the employer agreed that three of those persons had a reasonable refusal.
PN2417
THE COMMISSIONER: It’s an exposition of what he believes falls from the evidence. It’s mixed with a statement in relation to three persons as to a conclusion the company has come to about the practical application of it in the light of the evidence.
PN2418
MR ENDACOTT: I finish very quickly by saying this.
PN2419
THE COMMISSIONER: You keep promising.
PN2420
MR ENDACOTT: Yes.
PN2421
THE COMMISSIONER: I’m getting my hopes up.
PN2422
MR ENDACOTT: I know. I’m just reminding you, shift work is – and my friend says they are shift workers. Well, we say they’re not. Even if you didn’t accept our statutory interpretation of them, shift worker, even in the more general sense, might be someone who works day and afternoon shift. They’re not that category because they only work day shifts. So in that sense - - -
PN2423
THE COMMISSIONER: All the affected employees only work day shift.
PN2424
MR ENDACOTT: That’s correct, yes. This isn’t a case about overtime. It’s a case about working on a public holiday. I know my friend had said working overtime on the public holiday. Really it’s this issue about the requirement to work a public holiday, because there’s a different test for overtime in the Act. I’ll conclude on that basis, Commissioner.
PN2425
THE COMMISSIONER: Can I still ask you – I’m not trying to be mischievous about this. I just am intrigued. Is Easter Tuesday a public holiday? It would be remiss of me if I didn’t - - -
PN2426
MR ENDACOTT: Yes. Commissioner, I haven’t looked at the latest version of the Banks and Bank Holidays Act in New South Wales and whether or not that includes a union picnic day.
PN2427
THE COMMISSIONER: Right.
PN2428
MR ENDACOTT: What we would submit, unless the company has got a different view, is that the parties treat that Easter Tuesday as a public holiday. Unless the commission was inclined to treat it differently - - -
PN2429
THE COMMISSIONER: No. I just come back to your reliance on the NES and the fact that the section in 114 and the section at 115 provides an explanation of what “public holiday” means. There’s no Easter Tuesday in there and I very much doubt there’s any state or local gazettal of a union picnic day. The only local gazettals that I know of are picnic race days or show days, something like that.
PN2430
MR ENDACOTT: Yes. Commissioner, without looking at the New South Wales legislation – I mean, technically it’s not a public holiday for the purposes of 114, that provision of the Act. I won’t state my life on it but I would submit, if you’re asking me to respond, that that’s probably correct. I say on this that the parties during the negotiations that commenced leading up to and during these proceedings have not raised any distinction between the two.
PN2431
THE COMMISSIONER: There’s no argument that it’s treated as a public holiday for payment reasons, but what happens to your Tuesday to Friday shotfirer if he’s required to work on that Tuesday, Easter Tuesday?
PN2432
MR ENDACOTT: Well, what we say is that in resolving the dispute the parties treat Easter Tuesday as a public holiday. I mean, if the employer wants to take a separate view, they’ve had legal counsel the whole time and would have identified it.
PN2433
THE COMMISSIONER: Look, I’m not sure they thought of it but it’s just I had time on my hands up here and one tends to read very carefully.
PN2434
MR ENDACOTT: Yes. It would depend on what position the employer took. I mean, ultimately – I know the employer makes a submission about how - - -
PN2435
THE COMMISSIONER: Well, I don’t want to get the employer’s hopes up or your hopes up but what I would think is that for practical purposes it is treated as a public holiday.
PN2436
MR ENDACOTT: Yes.
PN2437
THE COMMISSIONER: But I’ll have to look at it more closely.
PN2438
MR ENDACOTT: Commissioner, I know that the employer makes a submission about how they think the public holiday clause operates to the effect of what is meant by 14(4) where it says:
PN2439
At the commencement of the agreement the parties will nominate which public holidays shall be worked for the period of the agreement, provided that work shall not be carried out except by voluntary labour on two such days.
PN2440
I mean, the clause speaks for itself and we say it doesn’t really matter because of the way that the NES operates. So we say if that’s meant to override the NES it has not meaning. If Fair Work Commission was inclined to say that has meaning, well, we would simply say for these groups of employees on commencement of the agreement, they weren’t notified that they were required to work public holidays. In that sense - - -
PN2441
THE COMMISSIONER: Well, I think you’ve made that point.
PN2442
MR ENDACOTT: Yes.
PN2443
THE COMMISSIONER: I haven’t given you a second window.
PN2444
MR ENDACOTT: No. I finish on that point, Commissioner.
PN2445
THE COMMISSIONER: Okay.
PN2446
MR WARREN: Commissioner, you’ve asked the question and we should at least rise to what my friend has said. He has said it doesn’t matter what the employer position is. You have pointed out to us a position under section 114 of the Act. We recognise that Easter Tuesday is not one of those public holidays. My friend has been criticising our reliance on clause 14 of the agreement. He can’t now go both ways. We note that Easter Tuesday is not a public holiday for the purposes of section 114.
PN2447
THE COMMISSIONER: I note that I asked the question in the context of the union’s reliance on section 114 of the Act.
PN2448
MR WARREN: Yes, your Honour.
PN2449
THE COMMISSIONER: I won’t ask if there’s anything further. There isn’t. My decision is reserved. I’m adjourned.
<ADJOURNED INDEFINITELY [2.30PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #MAC6 DOCUMENT PN2288
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