AG2013/10790, Transcript of Proceedings [2013] FWCTrans 853 (12 November 2013)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1049099-1

COMMISSIONER SPENCER

AG2013/10790

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

Application by Endeavour Coal Pty Ltd
(AG2013/10790)





Sydney

10.41AM THURSDAY, 31 OCTOBER 2013

PN1

THE COMMISSIONER: Good morning. I thought we would just commence this morning off transcript, just to deal with - because I know there's a little bit of difference in the way in which the parties considered it might proceed. So are you in agreement just to have a quick discussion off transcript as to how you want to deal with things on transcript?

<OFF THE RECORD [10.42AM]
<ON THE RECORD [10.43AM]

PN2

THE COMMISSIONER: We'll go back on the record. I'll take appearances, please. Thank you.

PN3

MR M. AICKEN: Aicken, initial M, from Endeavour Coal.

PN4

THE COMMISSIONER: Thank you very much, Mr Aicken.

PN5

MS K. ROOKE-DAVIS: Rooke-Davis, initial K, for APESMA.

PN6

THE COMMISSIONER: Thank you very much. With you - just for the record - with you, Ms Rooke, you have MS C. BOLGER - - -

PN7

MS ROOKE-DAVIS: Yes, sorry; yes.

PN8

THE COMMISSIONER: - - - also for the union.

PN9

MS ROOKE-DAVIS: Yes.

PN10

THE COMMISSIONER: Thank you very much. All right, Mr Aicken.

PN11

MR AICKEN: This is a matter the Commission is familiar with. This is an application for the approval of an agreement known as the Appin Mine Staff Agreement 2013. The company filed a number of documents with its application when it was made to the Commission. The company in principle relies on the declarations of the parties to support the approval of the agreement. In addition to those were two documents tabled: one was headed, "The Proposed Undertaking," and it was the undertaking tabled with employees as part of the voting process. It is the undertaking made by the company and that was discussed during the process of the agreement. So that's there for the Commission. That undertaking in connection with clause 6 of the agreement we would say insures that the agreement satisfies the Better Off Over All test.

PN12

In addition to that there was a further document entitled, "Staff Additional Hours and Public Holidays Procedure," a procedure of Illawarra Coal but which applies to the employees in this agreement. During the course of the discussions it was agreed that that document would be made an exhibit in this process today.

PN13

THE COMMISSIONER: So not attached to the agreement but made an exhibit?

PN14

MR AICKEN: Made an exhibit for today - that the procedure provides the detail on payments that apply to employees under clauses 11(c), 11(e) and 14(b) of the agreement. I'm happy to have that marked in some way or noted in some way.

PN15

THE COMMISSIONER: By consent, as I understand it, Ms Rooke, we'll mark that as exhibit 1 in the proceedings.

PN16

MS ROOKE-DAVIS: Yes, that's correct.

EXHIBIT #1 COMPANY PROCEDURE DOCUMENT APPENDED TO AGREEMENT

PN17

THE COMMISSIONER: Thank you very much. Thanks, Mr Aicken.

PN18

MR AICKEN: In relation to the further matter in relation to the undertaking, it resulted from discussions yesterday I provided a copy of the current template letter of offer to the representatives of the union for the purposes of establishing, I assume, a base line for the undertaking as it deals with changes to the letter of offer.

PN19

THE COMMISSIONER: Right. Is that to become an exhibit in the proceedings?

PN20

MR AICKEN: No.

PN21

THE COMMISSIONER: There's been an exchange of that and you've noted that on the transcript? All right. Ms Rooke, you are in receipt of that current letter of offer which as Mr Aicken says will be the benchmark or the template against which the agreement in relation to changes to the letter of offer would work?

PN22

MS ROOKE-DAVIS: That's correct. That's our understanding and it's referred to directly in the undertaking as well.

PN23

THE COMMISSIONER: Yes. Thank you very much. Thanks, Mr Aicken.

PN24

MR AICKEN: Finally, on related matters that arose out of the directions that the parties were under for today's proceedings, both parties had corresponded with the presiding member on the full bench in relation to related matters to this procedure. As a result of that we received on 23 October a letter from Mr Stephen Crilly, associate to Justice Bolton. Attached to it was an order of the Commission noted here as PR543565 and from my point of view - and it's my understanding it's from the understanding of the parties that that resolves the other or outstanding matters in relation to this. On that basis I seek the approval of the agreement and thank the Commission for its stewardship of this matter, especially during the course of 2013.

PN25

THE COMMISSIONER: Thank you, Mr Aicken. As you say, the understanding of the employer and the union parties is that the order issued by the full bench in connection with the subsequent approval of the agreement would bring to full finalisation the full bench proceedings associated with this matter. Ms Rooke - Mr Aicken, thank you very much. Ms Rooke.

PN26

MS ROOKE-DAVIS: Well, basically I wish to concur with all that has been said by Mr Aicken so it's our view that this agreement meets the requirements under section 186 and 187 of the Act, in that the agreement has been genuinely agreed to by employees. The terms do not contravene section 55 of the Act and that the agreement in conjunction with the undertaking means that the agreement should pass the Better Off Over All test. It's our view that the group of employees that has been fairly chosen and the agreement contains mandatory terms as required by section 186. Mr Aicken has drawn to your attention the undertaking and mentioned that a current template letter of offer has been provided to us so the parties are clear on the terms contained in that current letter of offer. It's our view that the undertaking in clause 6, "Minimum conditions and rates of pay," should mean that the agreement passes the Better Off Over All test.

PN27

I don't think there's much more to be said other than thank you also for the extensive assistance that has been provided by the Commission throughout these proceedings.

PN28

THE COMMISSIONER: Thank you to both parties for the approach that they've taken to the course of negotiations. What in the outset was a difficult matter has been resolved by the approach of both parties. I appreciate the professional manner that you've taken in relation to the provision of documents and the submissions. I intend to approve the document. I consider it meets the requirements of the Act. In providing the decision I will make mention, obviously, of the undertaking and the exchange of the letter of offer and the procedure and I intend to issue the decision of approval as soon as possible but within the next 48 hours, that will provide then for the discharge of the agreement. On that basis I'll adjourn. Thank you very much.

<ADJOURNED INDEFINITELY [10.50AM]