AG2013/6016, Transcript of Proceedings [2013] FWCTrans 375 (14 May 2013)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1047950-1

Deputy President Bartel

AG2013/6016

s.185 - Application for approval of a single-enterprise agreement

Application by Red Mulga Pty Ltd
(AG2013/6016)





Adelaide

1.46PM, THURSDAY, 2 MAY 2013

PN1

DEPUTY PRESIDENT BARTEL: Good, afternoon. Thank you, I’ll take appearances.

PN2

MS E. VAN DER LINDEN: Van Der Linden, Initial “E” for the Australian Mines Matters Association, representing Red Mulga Australia.

PN3

THE DEPUTY PRESIDENT: Yes, thank you. Yes, the Commission issued a statement of preliminary findings dated 16 April and there were several matters raised that were advised to the employer as being subjects that I sought further information and/or clarification on. So, I guess this is your opportunity to address those matters, thank you.

PN4

MS VAN DER LINDEN: Thank you. I’ll speak directly to the preliminary findings that you sent out and I might just start off saying thank you for changing the time of this hearing.

PN5

THE DEPUTY PRESIDENT: No problem.

PN6

MS VAN DER LINDEN: It’s very much appreciated. The first matter that I took from the preliminary findings was just clarification around the classification structure. Firstly, with the clerical employees, the clerical employees will be identical as per the Private Sector Clerks Award 2010 of the modern award. So, the classification structure is identical to the one in the modern award.

PN7

THE DEPUTY PRESIDENT: Yes, and how do the employees enforce their rights to that classification structure?

PN8

MS VAN DER LINDEN: In regard to?

PN9

THE DEPUTY PRESIDENT: The fact that it’s not in the agreement and the fact that the award is excluded.

PN10

MS VAN DER LINDEN: What I can do is put an undertaking to actually have a classification structure put into the award, sorry, into the agreement so that all of the details of each classification is in the agreement. I think it was mainly an oversight of the FSC that the table was taken in its entirety to be put in as far as the actual rates of pay, the levels are exactly the same and it was intended that the actual classifications related to each level would be technically the same.

PN11

THE DEPUTY PRESIDENT: That would be the case for the, I think it is three awards that apply?

PN12

MS VAN DER LINDEN: The mining industry is very slightly different in that Level 5, 6 and 7 aren’t applicable to this company so if you look, the entry level, Level 1, 2, 3 and 4 are included in the classification structure but they hadn’t included 5, 6 and 7 because they hadn’t hired and will never hire people in those positions because they’re at the higher dual trade levels and that’s not the type of business that they’re in.

PN13

THE DEPUTY PRESIDENT: But if the company were prepared to provide an undertaking that the classification structures of the relevant awards would apply that wouldn’t –

PN14

MS VAN DER LINDEN: That would be fine.

PN15

THE DEPUTY PRESIDENT: - - - wouldn’t apply the employer to engage people under the higher classifications.

PN16

MS VAN DER LINDEN: No, that’s not a problem at all.

PN17

THE DEPUTY PRESIDENT: Thank you.

PN18

MS VAN DER LINDEN: The second matter that was raised was the overtime rates and permanent night shift for the clerical employees under the applicable modern award. My understanding is that the clerical side of things was actually put in later in the piece, so the original agreement when it was negotiated was going to be for more of the mining stream within the organisation and they decided to included clerical and I think that that’s why some of the things were potentially missed out. I have spoken to the company and they’re willing to do an undertaking to say that any clerical employees will be paid overtime at time and a half for the first two hours and double time thereafter which is the same provisions which are in the Private Sector Clerks Award.

PN19

Just to clarify that clerical employees will not be required to work any night shift because that was the other issue that was raised is that the night shift provisions in the agreement were at 30 – sorry in the award are 30 per cent but in the agreement were at 15 per cent.

PN20

THE DEPUTY PRESIDENT: I think that’s permanent night shift.

PN21

MS VAN DER LINDEN: Permanent night shift, yes, and their clerical staff work Monday to Friday, five days a week so they’re willing to make an undertaking that there won’t be clerical employees engaged on the permanent night shift as well to overcome that.

PN22

THE DEPUTY PRESIDENT: The earlier undertaking is that the overtime will apply as per the Clerk’s Award.

PN23

MS VAN DER LINDEN: That's correct. So, time and a half for the first two and then double time thereafter. Now, in regard to the allowances in the mining industry, so the next matter was regarding allowances in the mining industry.

PN24

THE DEPUTY PRESIDENT: Yes.

PN25

MS VAN DER LINDEN: And that there were a number of allowances which were excluded also in addition, permanent night shift and overtime penalties for continual shift workers were lowered and that you just sought clarification on the rosters in order to assess for the BOOT Test. So, I guess, starting with the rosters, there will be seven rosters which will be implemented at the workplace. What I’ve asked the company to do is to provide, I guess, the worst case scenario rosters as far as the employees working the most overtime, the most hours and, you know, on night shift and that as well, because there’s no point in them giving me a five and two roster where it’s Monday to Friday and – we can go, “Not a problem, fantastic” so I’ve asked for worst case scenario and what I’ve actually done is created a spread sheet which I can send to you in an excel version so I believe that – if I’ve got a copy – which just compares a full cycle of that roster.

PN26

What the roster is, is what they call a four and five roster. They’re going to be working four days on, five days off. Five nights on, four days off. Then five days on, four nights off. Four nights on, five days off. So, that’s all in there. That’s what they consider a complete roster cycle which is 36 days. You then get 10.3 of those into a year so if you want to look at – you know the (indistinct) but as I said, I will send it through to you which will have all the calculations in the background so you can look at it.

PN27

On the left hand side is if you run that roster through the award and on the right hand side is if you do it according to the enterprise agreement and you see that the enterprise agreement rates of pay are considerably higher and I’ve done it for both permanent and for casual employees.

PN28

Just as a side note – with the mining industry award ones, you’ll see down the very bottom there is a note to say that I’ve included the industry allowance as the award rate. So, if you look at the actual award rates in the award you will notice that they’re a bit lower. I’ve had the higher ones because I’ve just automatically added on the industry allowances. It’s an all- purpose one – just because I think that that makes it a little bit fairer as far as your comparison as well.

PN29

THE DEPUTY PRESIDENT: All right.

PN30

MS VAN DER LINDEN: Getting back to the allowances, essentially the allowances have been incorporated into the rates of pay and are not payable unless they’re specified in the agreement and that’s based on the fact that the agreement does pay considerably higher than what the award rates of pay are.

PN31

In addition to that, employees are not required to provide their own tools. Most of these people are going on to Olympic Dam, onto the BHP site so they’re not required or even allowed to provide their own tools on site just because of Occ Health and Safety risks and, you know, they probably haven’t passed the right standards and everything like that. So, there’s no requirement for providing their own tools and these people will not be engaged in any drilling, prospecting or exploration either. Just to clarify and, I guess, round off those allowances within the award.

PN32

THE DEPUTY PRESIDENT: Drilling, prospecting or ?

PN33

MS VAN DER LINDEN: There was an allowance for drilling, prospecting and exploration. So, those allowances will not be payable just because it’s not within the scope of what the company does or will do.

PN34

THE DEPUTY PRESIDENT: I take it from that that the other allowances described by the award, the various disability type allowances would otherwise be payable but you say that will be taken into account.

PN35

MS VAN DER LINDEN: That's right, yes, and of all of those I’m not even sure that a lot of location allowances for working, you know, in Western Australia or working in the Northern Territory. Obviously, (indistinct).

PN36

THE DEPUTY PRESIDENT: Sure, I’ll disregard those obviously.

PN37

MS VAN DER LINDEN: Having said that, it is an Australia wide agreement so I guess there is the potential – I would be dishonest if I said there wasn’t the potential but those allowances aren’t significant enough to push over for the BOOT test as far as – if you compare the rates of pay you’ll see they’re a fair bit higher.

PN38

THE DEPUTY PRESIDENT: Thank you.

PN39

MS VAN DER LINDEN: The other issue around that was also night shift as well because there was different rates for permanent night shift. Now, these employees are not going to be engaged on permanent night shift and the company is willing to make an undertaking that they won’t be employees engaged on permanent night shift.

PN40

THE DEPUTY PRESIDENT: I was just a bit surprised by that, only because – and I stand to be corrected but from my memory the agreement provided for the extra week’s annual leave. I know that doesn’t necessarily imply permanent night shift but that’s tied to the seven day continuous work.

PN41

MS VAN DER LINDEN: The extra weekend relief goes around to more continuous shift work other than permanent night shift because the people will be working regularly on weekends and on public holidays all be it it might not be on a permanent night shift, they will be cycling through those days. Therefore, they are entitled to the extra day of annual leave. Sorry, extra week.

PN42

THE DEPUTY PRESIDENT: Thank you.

PN43

MS VAN DER LINDEN: The next matter was in regard to the apprentice in that an apprentice is paid a specific percentage of the trade rate and the trade rate wasn’t specified. The trade rate is going to be equivalent to the Level 4 rate of pay within the agreement which is the highest rate of pay. It only goes up to Level 4 and their employees will be engaged on Level 4 if they are trade. The company currently doesn’t have any trade employees engaged, they just have apprentices and the apprentices work under the trade persons of either BHP or their primary contractors. I guess it’s probably worthwhile to give you a bit of a summary of what this is - - -

PN44

THE DEPUTY PRESIDENT: How are their rates calculated at the moment - on the Level 4 rate?

PN45

MS VAN DER LINDEN: On the Level 4 rate, on the trade rate, yes, but they don’t actually have any employees as far as actual trade people employed under that one but the apprentices that they have – that’s why they’ve got that Level 4 rate – it’s in order to calculate the apprentice rates based on it.

PN46

THE DEPUTY PRESIDENT: Where the agreement talks about the apprentice getting a percentage of the trade rate really should say a percentage of the Level 4?

PN47

MS VAN DER LINDEN: Level 4 rate, yes, and I can make an undertaking for it to have effect as that. Now, I believe that the final matter was in regard to the offset clause or an offset clause which, after reading through, I’ve recommended and the company has agreed to remove the offset clause because we don’t believe that – I don’t believe that it’s necessary, you know, you’ve gotten an individual flexibility arrangement clause if you want to make individual flexibility arrangements and this, in a way, kind of doubles up and then contradicts that to a degree. So, they’re willing to make an undertaking to remove that. I do want to avoid any ambiguity in that it’s intended that the second half of the clause - which talks about project working on site - remains within the agreement and so I wanted to make sure that that was clear. That the – if we go to Clause 2, Project and Offset Clause – that 2.1 be removed. However, Clause 2.2 remains within the agreement.

PN48

THE DEPUTY PRESIDENT: Yes, all right because that’s what the proviso - - -

PN49

MS VAN DER LINDEN: That’s really just if they then contract to people outside of where they are up at Olympic Dam and maybe send somebody to a mine site in the Northern Territory and they’ve got very specific site rules then those site rules then apply but it’s fairly clear in the company and even the site so, you know, we don’t want these people to be paid less than the award and that’s the intent, that they would get paid significantly higher than probably even this agreement if they go on site.

PN50

THE DEPUTY PRESIDENT: Yes, but the protection specifically is that they won’t get less than they would otherwise be entitled to under the agreement.

PN51

MS VAN DER LINDEN: Yes.

PN52

THE DEPUTY PRESIDENT: Just in relation to – if we can just go back one minute to the apprentices.

PN53

MS VAN DER LINDEN: Yes.

PN54

THE DEPUTY PRESIDENT: It’s all so long ago now. There was the issue about the trade rate which you’ve clarified.

PN55

MS VAN DER LINDEN: Yes.

PN56

THE DEPUTY PRESIDENT: Then, in paragraph 8 of the findings, “(Indistinct also provides that adult apprentices are entitled to a specified percentage of the minimum rate prescribed by the relevant modern award.” So, if they’re not getting – the point I’m making – if they’re not getting the beneficial provisions of the higher rates of pay then I’m not satisfied that there’s anything else in the agreement that is going to bring them better off overall.

PN57

MS VAN DER LINDEN: Yes, I would agree with that. I don’t believe that that has been covered off in my discussions. I apologise about that. If possible would I be able to just have discussions with the company to see what they currently do with their adult employees or their adult apprentices and ensure that whatever terms are included within the agreement because, I agree, reading that that it would not pass the BOOT test. So, we would need to make adjustments and undertakings to ensure that they do.

PN58

THE DEPUTY PRESIDENT: Perhaps when we adjourn today if you could provide the – if you wish – the spread sheet and also the undertakings that you are prepared to provide.

PN59

MS VAN DER LINDEN: I have already provided a draft copy for you to have a look at but it has got “draft” written on it because, as I said, I have only just come back from leave and it was – I knew that as much as I like to think I’m perfect – I know that there would be something which – so what I will do is I will amend these. I will have discussions with the company to amend them to include the apprentice rates as well for the adult apprentices and then send them through as a final copy and then, if you’re happy with that, we will endeavour to get it signed by the employees and by the company.

PN60

THE DEPUTY PRESIDENT: Well, my understanding is that the undertaking – I’m not discouraging you from getting the employees to sign the undertakings but my understanding is that it’s not a requirement.

PN61

MS VAN DER LINDEN: I agree it’s not a requirement. It’s – I guess – a practice I have done in the past which – and they’re all on site up there and I think there’s only about 12 employees or so at the time but I guess it’s up to the company as to whether or not they do but as a general rule we try to get the employees to be involved.

PN62

THE DEPUTY PRESIDENT: All right. Well, look, perhaps and I’m just thinking of the time frames to try and get this wrapped up – perhaps if the undertakings that you provide, perhaps run them past the employees before they’re provided to the Commission.

PN63

MS VAN DER LINDEN: Certainly.

PN64

THE DEPUTY PRESIDENT: If there’s any minor modifications then you have the opportunity if you wish to put it back to the employees but you may not deem that necessary. Otherwise they will be acceptable in which case I can go ahead and approve the agreement at that point.

PN65

MS VAN DER LINDEN: Yes, your Honour.

PN66

THE DEPUTY PRESIDENT: But, yes, look, if you provide undertakings as long as that issue about the adult apprentice is addressed then it would seem to me that the other matters that you’ve put forward and undertakings that you’ve indicated so far today would satisfy the concerns I have and allow me to approve the agreement.

PN67

MS VAN DER LINDEN: Thank you very much.

PN68

THE DEPUTY PRESIDENT: Nothing further?

PN69

MS VAN DER LINDEN: No, nothing further. Thank you for your time.

PN70

THE DEPUTY PRESIDENT: We will adjourn on that basis. Have you got any idea when you will be able to provide something?

PN71

MS VAN DER LINDEN: To be honest I will try and do it by tomorrow. I generally don’t – actually, I am working this Monday. I don’t work on Mondays and Tuesdays but I am coming in Monday of next week so – it would be Monday at the very latest.

PN72

THE DEPUTY PRESIDENT: All right. Perhaps I can just say, take your time on that front simply because I am in court all day tomorrow, Friday and all day Monday. If you can get something perhaps by close of business Monday then I can have a look at it on Tuesday.

PN73

MS VAN DER LINDEN: That would be a perfect time frame. Thank you.

PN74

THE DEPUTY PRESIDENT: We’ll adjourn on that basis.

<ADJOURNED INDEFINATELY [2.17PM]