Transcript - 20 March 2020 - Tranche 3 - Black Coal Mining Award

PN1

JUSTICE ROSS: At paragraph 10 we expressed the provisional view that the definition be amended as is set out there. At paragraph 11 we note that we don't think it's necessary to expressly refer to the note in clause 4.3 as it's part of that clause. Does anyone dispute that provisional view? No? All right.

PN2

I'll occasionally just ask if you're still there. It's mildly disconcerting when nobody says anything, so - and I might just be proceeding on the basis everyone agrees and you've all hung up. But the - - -

PN3

MR HARRINGTON: Harrington (indistinct) located at paragraph 10. If the Commission agrees (indistinct) is a part of 4.3 then we're not going to put (indistinct) reference to the note (indistinct).

PN4

JUSTICE ROSS: All right, thank you. Can I take you then to the definition of "ordinary week's pay", in clause 2, and the provisional view is set out at paragraph 14 and the amendments are noted in red. Does anyone dispute that provision view? No?

PN5

MR HARRINGTON: Okay - - -

PN6

JUSTICE ROSS: Yes?

PN7

MR HARRINGTON: It's Ai Group here again. Look, most of the (indistinct) we've got, that's in relation to the members who have ordinary week's pay. Our original proposal which referred to the rates in schedule A or schedule B as applicable, and we still think that this might be preferable to A.4 and B.2. They're a junior rate, as well, in A.7. So our position would be that if the redundancy applies to these employees the ordinary week's pay should reference the higher rate, which never (indistinct) those employees.

PN8

JUSTICE ROSS: All right, so to give effect to that the definition would be amended. So where you've got in paragraph 14 in the quoted section, the second line, it would say, "Clauses A and B", rather than "A.4 and B.2", is that what you're proposing?

PN9

MR HARRINGTON: We would propose schedule A and schedule B.

PN10

JUSTICE ROSS: Yes, so we'd be in schedules A and B. Is that the proposition, Mr Harrington?

PN11

MR HARRINGTON: Yes. Thank you, your Honour.

PN12

JUSTICE ROSS: All right, anybody oppose that? Okay. Personal carer's leave and compassionate leave. This is, Ms Sarlos, a proposal of your organisation. At paragraph 18 we expressed the provisional view that the explanatory words that appear in clause 21.6 of the current award be inserted in 25.1 of the exposure draft as proposed by the union. Is there any opposition to that course? No? All right. The next issue raised by the CFMMEU relates to the shiftwork rates in schedules C and D. The proposition put by the union is at clause 22. They submit that the rates in the schedule C, 1.2(d), 1.2, and D2.2 be amended as is set out there. Can I just ask you first, Ms Sarlos, have we correctly set out the amendment that you are seeking?

PN13

MS SARLOS: Your Honour, I think so but out of an abundance of caution I just want to double check that before committing to that position.

PN14

JUSTICE ROSS: Yes.

PN15

MS SARLOS: Would I be able to communicate that following - if that's okay?

PN16

JUSTICE ROSS: Look, just communicate if we've made a mistake.

PN17

MS SARLOS: Okay. That's okay.

PN18

JUSTICE ROSS: Look, I'm pretty sure I just quoted what you said. I didn't try and paraphrase what you were seeking. But we can deal with any error later. For the moment, let me just ask the other parties. If I can firstly to you, Mr Harrington, then to you, Mr Morris, as to whether you oppose the amendments that are being sought by the CFMMEU.

PN19

MR HARRINGTON: Ai Group here. Yes, we do oppose the amendments sought by the CFMMEU, assuming they are accurately reflected in the statement.

PN20

JUSTICE ROSS: Okay. And Mr Morris?

PN21

MR MORRIS: Yes, we have a continuing concern about the treating of the penalties as cumulative. And whilst we're not invincible of it, we do have a concern and we - - -

PN22

JUSTICE ROSS: None of us are invincible, Mr Morris.

PN23

MR MORRIS: Yes. Perhaps not.

PN24

JUSTICE ROSS: Is that the central issue, as you see it? It's that the union's proposal has proceeded on the basis that there's accumulation of the penalties?

PN25

MR MORRIS: That's correct.

PN26

JUSTICE ROSS: All right. All right, well, we'll park that issue for a moment as being a matter in dispute and then we'll return to how we might deal with it. Do I take it that the other unions either support the CFMMEU's position, or don't take a position in relation to the issue?

PN27

MR COLUCCIO: Mr Coluccio here. We do support the position of the CFMMEU.

PN28

JUSTICE ROSS: Okay.

PN29

MS ABOUSLEIMAN: Ms Abousleiman here. We do support the position of the CFMMEU.

PN30

JUSTICE ROSS: Thank you.

PN31

SPEAKER: The AMWU also supports the position of the CFMMEU.

PN32

JUSTICE ROSS: Okay. Then we've got the question dealing with the six, seven day roster employees, overtime and public holidays. This issue is sort of set out in the statement. That issue still seems to be a live issue between the parties. I wanted to touch on one thing before leaving it, and then to go to clause 29.4, the matter raised from paragraphs 34 of the statement and onwards. But the first thing I wanted to cover is, at paragraph 32 the CFMMEU notes there is some dispute about the terms of the six and seven day roster provisions. But they're not aware of any party holding a different view in relation to the correct interpretation of those provisions. So as I understand it, Ms Sarlos, what the union is saying is that, look, there's no real dispute about the interpretation of the current six, seven day provisions. The dispute is about the translation of those provisions into the exposure draft and the variation determination. Is that what you're saying?

PN33

MS SARLOS: Yes, your Honour.

PN34

JUSTICE ROSS: All right.

PN35

MS SARLOS: I think there are some issues that come up that are brought to a head with the translation into the words in the exposure draft, but the issues may - well, I think do exist in the current drafting.

PN36

JUSTICE ROSS: All right. Well, let me just get some observations from Mr Harrington and Mr Morris about that issue, for the moment and then we'll see how we proceed. Mr Harrington?

PN37

MR HARRINGTON: Look, as we understand it the issue of the six and seven day roster employees, there are two issues there. There's one which pertains to overtime, and that's for 21.3 of the overdraft, and another which pertains to public holidays, and even though they're interlinked they can be looked at conceptually separately. We're just dealing with the - yes, any proposed variation of 21.3, we understand that the union has altered its position slightly since the 3 December 2015 submission and that the proposed wording for the variation for the 21.3 is reflected in its 4 March 2020 submission and it merely seeks to replace the word, "after", with the word, "of", to avoid what might be seen as an implied additional temporal limitation to the application for the overtime rates for shiftwork employees. If the CFMMEU's proposal then are limited just to those two variations then we don't oppose them. But the far more contentious issue, as we see it, relates to public holidays.

PN38

JUSTICE ROSS: All right. And that's the issue you raised about clause 29.4, that's dealt with from 34 onwards in the exposure draft?

PN39

MR HARRINGTON: That's correct.

PN40

JUSTICE ROSS: All right.

PN41

MR HARRINGTON: We can continue to press our proposed amendment (indistinct).

PN42

JUSTICE ROSS: No, no, that's fine. Well, just, Mr Harrington, can you just repeat the two amendments that you've indicated the CFMMEU seeks, that you don't oppose?

PN43

MR HARRINGTON: That is the variation to 21.3(a) and (c), the replacement of the word, "after", in the first line of each of those subclauses, with the word, "of."

PN44

JUSTICE ROSS: Okay. All right, thank you. And Mr Morris, do you take a similar position, you wouldn't oppose - - -

PN45

MR MORRIS: We do. Yes.

PN46

JUSTICE ROSS: Yes, all right. Okay, so that's the measure of agreement. Leave aside for the moment Ai Group's position on clause 29.4. Are there any other issues in relation to - or what are the other issues in relation to six and seven day shift workers that are canvassed in the exposure draft from paragraphs 23 through to 33, that are still in dispute? We've dealt with the variation to clauses 21.3(a) and (b), replacing "after" with "of", where it first appears. Are there any other variations - other than the 29.4 issue, is there anything else in that section that remains in dispute?

PN47

MR COLUCCIO: Mr Coluccio here. Just as an administrative note, I just notice in paragraph 31 of the statement where it does talk about the drafting for those two paragraphs, it does appear that the word, "after", has been put into those clauses still. I think that might be (indistinct).

PN48

JUSTICE ROSS: Yes. No, no, no, I follow. Yes. Yes, thank you. Yes. No, I'll make sure those changes are made. Well, let's then look at 29.4, and Ai Group is confirming that its claim is pressed, continues to rely on its submission of the 13 November. The issue then arises, as well, how to determine that claim and to deal with the issue in dispute. Look, from my perspective I think the easier course is for Ai Group to file a fresh submission setting out precisely the variation sought to the exposure draft, and the arguments that it relies on. That will avoid us sort of going back to an earlier submission, et cetera. And that once that's been filed, and anyone else who supports a similar variation that's - and if you've got anything separate to say, Mr Morris, that will be the time to say it. Then there would be a period of time in which the unions could file a response to that. And probably once the response is in we would have a further conference. That's in relation to 29.4.

PN49

If I return to the other issue that we had parked earlier - just bear with me for a moment - that is the shiftwork rates in schedule C and D. Similarly, the union has set out its position. I would provide them with an opportunity to file a submission and anything else they wished to say in relation to that issue. Let's say, for argument's sake, in four weeks the union files its submission on schedule C and D; the Ai Group or the employers file their submission in relation to clause 29.4 and public holidays; then a further four weeks after that all parties reply to the submissions of other parties; and then following the lodgement of the reply submissions I'd have a further telephone conference to see whether you needed to reply to what someone else has said, whether you're all content to have the matter dealt with on the papers on the basis of what you've filed. I would also circulate a report from this conference which would capture what I think has been agreed. And you'd have an opportunity to comment on that report in the submissions that you would be filing. Can I invite your comments about that process? Ms Sarlos?

PN50

MS SARLOS: Your Honour, I think that sounds like a reasonable way forward on each of those matters.

PN51

JUSTICE ROSS: And, look, we won't proceed to do anything further in relation to this exposure draft or the variation determination. I think we'll resolve these issues and then proceed with the rest of it once this is done. Mr Harrington?

PN52

MR HARRINGTON: We are content with that approach, your Honour.

PN53

JUSTICE ROSS: All right. Mr Morris?

PN54

MR MORRIS: We're very happy with that, thank you.

PN55

JUSTICE ROSS: Okay. Anyone oppose it? No?

PN56

MR COLUCCIO: No, your Honour.

PN57

JUSTICE ROSS: And, look, I've given reasonably generous time periods because I think each of you are coping with a range of other things at the moment. If anything arises that creates a problem for you in complying with directions that I'll put out on Monday following the conference then you'll have liberty to apply. All right? Is there anything else from any party? No?

PN58

MS ABOUSLEIMAN: No, your Honour.

PN59

JUSTICE ROSS: All right. Thanks, very much for your attendance, I'll adjourn.

PN60

MR HARRINGTON: Thank you, your Honour.

ADJOURNED INDEFINITELY [9.31 AM]