PN1

JUSTICE ROSS: Good morning, could I have the appearances, please, in Sydney?

PN2

MR T SEBBENS: Yes, your Honour - my name is Sebbens, initial T, solicitor. I appear for the Coal Mining Industry Employer Group.

PN3

JUSTICE ROSS: Thanks, Mr Sebbens. Perhaps if you keep your seats and just talk into the microphone, that might make it easier.

PN4

MR SEBBENS: Thank you, your Honour.

PN5

MR A THOMAS: If the Commission pleases, Thomas, initial A, for the CFMEU mining and energy division and also on this occasion for APESMA.

PN6

JUSTICE ROSS: Thanks, Mr Thomas.

PN7

MS A DEVASIA: Ms Devasia for the AMWU.

PN8

JUSTICE ROSS: Thanks, Ms Devasia. The purpose of the mention is to set down a process for finalising the shut-down annual leave issues in the black coal mining Industry award. Each of you are aware of the background of this matter but I might recap on it briefly. Because of some decisions made relating to the insertion of excessive leave provisions in this award and consequent on a decision of 27 March 2017 there - an issue arose as to the inappropriate stand-down or shut-down provision for this award.

PN9

In the decision of March the bench expressed or set out a provisional term in an effort to try and move the matter along. A hearing took place on 5 May this year to deal with the parties' responses to the shut-down provision. There was then subsequent to that a shift in position from the Coal Mining Industry Employer Group such that they indicated that they supported what had been the provisionally expressed view in the March decision and the issue between the unions and the employer interest, as I understand it, is that the provisionally expressed term included a capacity for the employer to direct an employee in certain circumstances to take unpaid leave.

PN10

That was the point at issue between the parties. There was then correspondence filed after the statement that I'd issued on 15 May in which among other things the CFMEU indicated the matters should be listed for hearing, it continuing to oppose the position advanced by the employers. It would appear that - and this is really to you, Mr Sebbens - is it still your position - I understand there was some agreed or not-opposed variations to the provisionally expressed term but the substance of it is the direction to take unpaid leave that is the issue still in dispute.

PN11

Has the position of your organisation changed or does it remain the same?

PN12

MR SEBBENS: It remains the same, your Honour. Perhaps if I just turn primarily to the submission that we filed on 18 May.

PN13

JUSTICE ROSS: Yes.

PN14

MR SEBBENS: It describes what the position is that and remains the case.

PN15

JUSTICE ROSS: Yes.

PN16

MR SEBBENS: So the Coal Mining Industry Employer Group still continued to support the provision view of the Commission and the insertion of the model term with some amendments and those amendments are set out in annexure A to that submission on 18 May.

PN17

JUSTICE ROSS: Yes, and I don't think the - the amendments as I understood it - I see, yes, right.

PN18

MR SEBBENS: I think, your Honour, the summary - if I can put it this way, and my friends will let me know if I get it incorrect - is that the amendments in B are not opposed - - -

PN19

JUSTICE ROSS: Yes.

PN20

MR SEBBENS: - - - in the revised clause. The amendments in C - I'm not sure if they're opposed but it would seem that there is little controversy about that. The primary disputes remain in respect of D and primarily in respect of - within that clause - both to put in leave of pay, if I can put it that way, and also I believe it still remains a matter of dispute whether or not there is an ability to direct the taking of paid annual leave, the basis of that being that the union's former view that the already existing clause in the black coal mining industry award does not provide for the directing of paid annual leave in the current shut-down clause. So while that's provided for in the model term - - -

PN21

JUSTICE ROSS: All right.

PN22

MR SEBBENS: - - - there remains an issue there about whether or that's a substantial change being affected by the insertion of this model clause.

PN23

JUSTICE ROSS: All right, well, Mr Sebbens, do I take it that if we go to what the position was in this award before the excessive leave model term was inserted - - -

PN24

MR SEBBENS: Yes.

PN25

JUSTICE ROSS: - - - so before the process started - clause 25.4(c) provided that the employer could direct an employee to take all or part of an annual leave entitlement by the giving of at least 28 days' notice.

PN26

MR SEBBENS: Correct - 25.10 is the next subclause, your Honour.

PN27

JUSTICE ROSS: Yes, but it doesn't provide any right to direct anything.

PN28

MR SEBBENS: On its express terms, no.

PN29

JUSTICE ROSS: No. So it's the combination of 25.4(c) and 25.10 that in the event there was a shut-down the employer could also direct the taking of annual leave for the duration of the shut-down.

PN30

MR SEBBENS: Correct.

PN31

JUSTICE ROSS: All right, and there was no capacity in the award at that time to direct the payment or direct an employee to take unpaid leave?

PN32

MR SEBBENS: So the unions contend.

PN33

JUSTICE ROSS: No, I'm asking whether you say if it's anything different and if so, where was that power?

PN34

MR SEBBENS: Well, we would contend that in order to make this clause work that must be the consequence, if the employees do not elect to take either of the options that are set out within that clause and/or if they're not directed we'd say that's the consequence.

PN35

JUSTICE ROSS: Well - - -

PN36

MR SEBBENS: I know there obviously is a different view open and I know that the Commission has in hearing previously expressed some view about that.

PN37

JUSTICE ROSS: Well, I can indicate that my provisional view would be the same. I can't see - you're asking for it to be implied that there be a power to direct an employee to take unpaid leave in circumstances where it just is a matter of construction. The difficulty I'm having with your argument is that there is - where the award intends to provide a power to direct, it does so expressly and it does that in 25.4(c). Isn't that really against the contention that if you were right, why would it expressly do it in one point and then by implication in another?

PN38

MR SEBBENS: I hear what your Honour says. Obviously the employer group has a different view and would be contending that in the current term it would be implied with respect - - -

PN39

JUSTICE ROSS: Well, is there any evidence from the employer group as to when such an implied provision has been utilised in practice?

PN40

MR SEBBENS: Well, not before your Honour at the moment, nor the full bench.

PN41

JUSTICE ROSS: No, but there might be an opportunity to provide any such information - - -

PN42

MR SEBBENS: Yes.

PN43

JUSTICE ROSS: - - - and that may well obviously be relevant to the issue and may well colour the conclusion, I suppose, because at the moment I'm just looking at it as I suppose a construction point, purely looking at clause 25.

PN44

MR SEBBENS: Yes.

PN45

JUSTICE ROSS: But how the provision is operated in practice may well put a different colour on that, so - - -

PN46

MR SEBBENS: Yes, your Honour.

PN47

JUSTICE ROSS: All right. Well, can I come to you, Mr Thomas, just to - if I take you to the employer submission of 18 May, do you have that?

PN48

MR THOMAS: Yes, I do, your Honour.

PN49

JUSTICE ROSS: Do you see the attachment there?

PN50

MR THOMAS: Yes.

PN51

JUSTICE ROSS: I had understood that the 25.10(b), the marked-up version there, was not opposed?

PN52

MR THOMAS: Yes, that's correct.

PN53

JUSTICE ROSS: What about (c)?

PN54

MR THOMAS: Yes, we don't oppose (c) either.

PN55

JUSTICE ROSS: Yes, all right, so am I right in thinking that the issue, really - well, I might not be right about this on the basis of what Mr Sebbens said a moment ago but I had apprehended that the concern of the unions was directed at the power to direct an employee to take unpaid leave or leave in advance.

PN56

MR THOMAS: Yes, your Honour - if we go back to your decision or the decision of the full bench on 27 March - - -

PN57

JUSTICE ROSS: Yes.

PN58

MR THOMAS: - - - you will recall that we raised two major objections there.

PN59

JUSTICE ROSS: Yes.

PN60

MR THOMAS: The basis for those was firstly that what the coal-mining group was seeking to do was to re-insert a power that the full bench had just removed from the award and that in effect was 25.4(c), and that was the power to direct an employee to take annual leave and that secondly, the issue of the employer being able to direct an employee to take unpaid leave in whatever form you wish to call it was opposed as well because as you have expressed just a minute ago and also in the proceedings on 5 May, the absence of a power in the existing award to require the employee to take unpaid leave.

PN61

What is also tangled up in that, your Honour, is the question of whether or not the Commission has jurisdiction to insert such a provision in the award in the first place - - -

PN62

JUSTICE ROSS: Yes.

PN63

MR THOMAS: - - - because if that gets up everything else in that area falls to the wayside. So those points, your Honour, are perhaps encapsulated in subclause (d), I think is where the amended clause in annexure A of the 18 May submission where the employer is seeking the right to require employees to take annual leave or leave without pay, depending on the circumstances.

PN64

JUSTICE ROSS: Yes.

PN65

MR THOMAS: We draw the line in particular at those two - - -

PN66

JUSTICE ROSS: Well, what can an employer do in the event of a shut-down, then, in your submission?

PN67

MR THOMAS: At present the employer can request an employee to take annual leave; can request an employee to take leave without pay and in the event that an employee declines to do either, the employer is met with the position that they either find them alternative work - and that may be more or less available, depending on the nature of the shut-down, if it's only a partial shut-down, for example, there may well be work elsewhere - or the employer has to find other meaningful forms of employment over that period, such as training or it may be confronted - well, we wouldn't support this but it may well be confronted with stand-down situations but we would say that the employer should provide an employee with work.

PN68

JUSTICE ROSS: All right. Does the AMWU have a different position or are you essentially - - -

PN69

MS DEVASIA: No, your Honour, it's essentially the same position as the CFMEU on all of those aspects.

PN70

JUSTICE ROSS: All right.

PN71

MR SEBBENS: Your Honour, could I just note - just in the summary Mr Thomas has just given, of course the present clause as it exists still contains - sorry, the previous clause in a situation when shut-downs have previously arisen was in circumstances where - - -

PN72

JUSTICE ROSS: I'm sorry, you need to talk into the microphone. I can't hear you.

PN73

MR SEBBENS: I'm sorry, your Honour.

PN74

JUSTICE ROSS: That's all right.

PN75

MR SEBBENS: The majority of examples of shut-downs since the modern award has been in place is a situation where 25.4(c) existed. That was that there wasn't a lead to direct the taking of annual leave. Mr Thomas omitted that in his summary and I think he does that because your Honour's question was in relation specifically in relation to the operation of 25.10 but of course that was the corollary mechanism by which the taking of leave could be directed.

PN76

JUSTICE ROSS: Yes, yes.

PN77

MR THOMAS: We would also say, your Honour, is that at present we say that the award is such that the employer does not have a right to direct an employee to go on leave without pay. So our view would be it's no different to what they've already got.

PN78

JUSTICE ROSS: Yes, well, I understand what each of you say about that. All right, look - - -

PN79

MR SEBBENS: Your Honour, if it assists you, the parties have had some brief discussions about the way forward on this matter and this is obviously (indistinct).

PN80

JUSTICE ROSS: Yes, I've also had a discussion with the full bench about the way forward too, so - - -

PN81

MR SEBBENS: Thank you, your Honour.

PN82

JUSTICE ROSS: I might indicate - bearing in mind that, look, these issues have been fairly well-canvassed between you. What we had in mind was having regard to what's been put between you we would propose to circulate a revised clause for your consideration. We would provide the employer parties with an opportunity to file any submissions or evidentiary material they wish to by 4 pm on Monday 14 August, the union parties to file a response by 4 pm on Thursday 17 August and the we'd hear the matter on Friday 18 August at 9.30.

PN83

It's of fairly relatively short compass, the issue between you. The revised draft that we will look to circulate is to try and focus the discussion of the parties. It would include the material that is agreed between you and it would provide the employer with the right to direct an employee to take a period of accrued annual leave. In adopting that position it's - we don't wish to foreclose any argument about either from you, Mr Thomas, your position being it appears there should be no power to direct the taking of annual leave, nor your position, Mr Sebbens, that there should be a power to direct the taking of unpaid leave. But it will at least provide some focus for the discussions. You've been well familiar with the issues for some time now and we just want to provide a fairly short process to hear and determine the matter. Is there anything about that - any questions you have or issues you wish to raise?

PN84

MR SEBBENS: Your Honour, perhaps if I just foreshadow that the parties and each of those who are at the bar table as we speak, have accident pay proceedings in which evidence and submissions in reply are due by the CMIEG on that date of the hearing that you've suggested, from memory.

PN85

JUSTICE ROSS: Yes.

PN86

MR SEBBENS: We are currently obviously working on that.

PN87

JUSTICE ROSS: This is a fairly confined issue, though. I can't imagine - - -

PN88

MR SEBBENS: The CMIEG has somewhere in the order of 14 or 15 members. In order to put on evidence we will need to speak with each of those entities to be able to get the sort of the evidence that your Honour has indicated would assist the full bench. I hear what your Honour says but 10 days in order to do that may be quite a tight timeframe.

PN89

JUSTICE ROSS: Well - - -

PN90

MR THOMAS: Your Honour, if I could just interpose whilst you're thinking about it - my concern is that if the employer puts on material on the 14th and it has evidence and we wish to put evidence in reply we have a very short time.

PN91

JUSTICE ROSS: Sure, but there would be liberty to apply, as there is with any directions, in the event that something unforeseen occurs.

PN92

MR SEBBENS: Could I - somewhere apart from what your Honour has just outlined but could I perhaps just put to you what the parties had discussed amongst themselves?

PN93

JUSTICE ROSS: Sure.

PN94

MR SEBBENS: It was a probably more substantial timetable and I accept that the full bench may have a different view about all this but the parties had discussed a timeframe of - that the Coal Mining Industry Employer Group would have until 29 September to put on evidence - - -

PN95

JUSTICE ROSS: No, no, no, no. No.

PN96

MR SEBBENS: I won't continue, your Honour.

PN97

JUSTICE ROSS: Yes, it's - this is a fairly narrow-compass issue. It's been ventilated by the parties. We've had - we've dealt with it in one decision, we've had a further hearing and to now have another two months to just sort of get evidence in and - how long would the union have after the end of September?

PN98

MR SEBBENS: The union would then have a similar sort of time, so - - -

PN99

JUSTICE ROSS: Well, I mean, for goodness' sake - this is one issue about the terms of the shut-down provision. It's not, you know - you'll either have the material or you won't. I hear what you say about the accident pay matter and we'll give some thought to that but no material was filed prior to the earlier hearing. It was essentially an argument that was merit-based rather than evidentiary-based.

PN100

MR SEBBENS: Yes.

PN101

JUSTICE ROSS: I'll confer with my colleagues and I'll have regard to what you've said about the accident pay issue. We'll look to provide some additional time. But it's not going to be in the order of four months before we get to a hearing of the matter.

PN102

MR SEBBENS: Yes.

PN103

JUSTICE ROSS: The parties have been aware at least since the third week in May of the issues between them. I'll endeavour to get directions out later today and we'll proceed to have the matter heard and determined but I will have regard to what you've said about the other matter so it's unlikely that the time frame will be as I had earlier indicated. You'll be given more time but it won't be of the order that you're seeking.

PN104

MR SEBBENS: Yes.

PN105

JUSTICE ROSS: All right? Is there anything further? Anything from you, Mr Thomas?

PN106

MR THOMAS: No, your Honour.

PN107

JUSTICE ROSS: No, all right. Nothing further? Okay, all right. We will issue directions later today. Thanks very much. I will adjourn.

ADJOURNED INDEFINITELY [9.52 AM]