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Fair Work Act 2009                                                    





s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Black Coal Mining Industry Award 2010

(common issue – annual leave – timing of taking leave – shutdown provision)




9.33 AM, FRIDAY, 5 MAY 2017


JUSTICE ROSS:  Can I have the appearances, please?


MR A THOMAS:  Yes.  If the Commission pleases, I appear on behalf of the CFMEU mining and energy division.  My name is Thomas, initial A.


JUSTICE ROSS:  Thanks, Mr Thomas.


MR A GUY:  If the Commission pleases, Guy, initial A.  I appear for APESMA collieries staff division.


JUSTICE ROSS:  Thank you.


MS A DEVASIA:  If the Commission pleases, Ms Devasia.  I appear for the AMWU.


JUSTICE ROSS:  Thank you.


MR T SEBBENS:  If the Commission pleases, my name is Sebbens, initial T, solicitor.  I appear for the Coal Mining Industry Employers Group.


MR B FERGUSON:  If the Commission pleases, my name is Ferguson, initial B, for the Australian Industry Group.


JUSTICE ROSS:  Thank you.  Ms Sebbens, I think you've got a colleague observing in Melbourne; is that right?


MR SEBBENS:  Yes.  I should have announced him as well, your Honour.  Mr Gunsberg, who was the convenor of the CMIEG.


JUSTICE ROSS:  All right.  I wonder if we might proceed this way:  we'll focus on the Black Coal Award initially, and look at some of the issues that have come up there. Really it's been largely Ai Group that's made submissions about the broader.  We've read those, but if, at the end of the Black Coal, there's anything either Ai Group or anyone else wanted to say about that, we can deal with that then.


Can I turn to Black Coal, and can I deal initially with the Coal Mining Industry Employers Group's submission of 11 April, and you'll see there that there are two proposed changes which don't seem to be canvassed in the union's reply submission.  The two changes – well, one on the face of it, I wouldn't have thought – well, I'm not sure either would create much controversy, but the first one is to replace the reference to one month's notice with 28 days.  Now, understanding what the unions say about the period of notice, particularly the AMWU, leave that aside for the moment; that's a separate question.  Is there any objection, if we were to retain the month, that it be expressed as 28 days?  So it doesn't seem to ‑ ‑ ‑


MR GUY:  No.


JUSTICE ROSS:  No, all right.  The second issue, and I note, in some of the unions' submissions, particularly, I think, the AMWU, they refer to the facilitation of agreed positions in relation to the taking of annual leave, well, that seems to be captured a bit in the proposition that's advanced, the second one, by the Coal Mining Industry Employers Group, and that is that there be – again, leave aside, I understand the argument about the period of notice, but there's a general requirement that the employer must give a certain period of notice to the affected employees, and what's proposed is:


"or such shorter period as agreed between the employer and the employees affected".


I don't think that was addressed in the unions' submissions.  Do you want to comment on that, or do you want to – Mr Thomas, what do you ‑ ‑ ‑


MR THOMAS:  I don't think that would be, if it's subject to agreement ‑ ‑ ‑




MR THOMAS:  ‑ ‑ ‑ it may well be convenient for both.


JUSTICE ROSS:  Indeed.  Yes, it maybe.  Yes.


MR THOMAS:  So as it's subject to agreement, I wouldn't object to that.


JUSTICE ROSS:  All right.  Thank you.  APESMA?


MR GUY:  We would agree with the CFMEU's position on that.




MS DEVASIA:  We would agree, your Honour.


JUSTICE ROSS:  All right.  That deals with those issues, Mr Sebbens, so I don't think we need to hear from you any more in relation to that.




JUSTICE ROSS:  I think the balance of the issues in contention really, and correct me if I'm wrong about this, and I know there are related issues to them, but they seem to fall into two categories; the first is the period of notice, and there you have the AMWU's contention that the period of notice should reflect the period of the shutdown, that is, by that I don't mean if it's a two-week shutdown, it's a two week notice; I mean, it's the time that would be taken to accrue that amount of leave.  So that's the proposition advanced by the AMWU.  We've seen the response that's been put, and that seems to be pretty clearly articulated between the parties, and, unless anyone wants to say anything more about that, we understand what's been put.


The second issue is more complex, and that's around the unpaid leave proposition, and there's been the toing and froing about whether it's stand down or whether it's not stand down, but it may be that there's a more fundamental issue in it, and that's the proposition that's put, and this may sort of fit conveniently with Ai Group's submissions that if you look at this provision in context, you look at its predecessor, the unions have taken the point that, well, you haven't previously had the right to direct unpaid leave, and it doesn't seem to have been something that you've agitated.  If anything, we've inadvertently agitated it by picking up common elements of clauses in other awards, but it may be that if it's not something that's been in the award before, and, as you've seen the other two changes that the employers seek are not opposed, if they were granted, then it sort of begs the question, well, do we need to get into the debate about unpaid leave, or is the CMIE Group content not to have that power in this award, not having had it previously, and it operated apparently satisfactorily.  So then we simply are down to a debate about – that also I think gets rid of your subsidiary points, Mr Thomas, where you want the additional changes about continuous service and the like.




JUSTICE ROSS:  So we avoid that debate.  Then the debate gets focused on the quantum of notice it seems to me.  Is that – do you want – and I appreciate that this is something that we are raising now, but, firstly, can I just confirm with the unions, is that right?  Those are the two central points?  It seems to be the one that's generated – I understand the notice argument, but the one that's generated the most controversy, from your perspective, is the capacity to direct unpaid leave.  In the alternative, and this might not be a fair characterisation, I think you're really saying that, well, if there's to be another option then it could be perhaps a leave in advance option might create one way forward with, either by agreement or direction, but fundamentally your proposition is they haven't the right to direct unpaid leave, and it's not appropriate, for the reasons you articulate, and that seems to be where all the heat is in the debate.  Not – you know, there's still a bit of heat over the notice, but I think the issue for you on the notice is you've got a current provision that's operated, and the like, and the area of departure from what you've currently got is in relation to the direction to take unpaid leave.


Mr Sebbens, I wonder, given we've raised this now, I'm going to ask the unions whether all of that summary is accurate from their perspective in a moment, but you might benefit from a short adjournment ‑ ‑ ‑




JUSTICE ROSS:  ‑ ‑ ‑ to confer with your colleagues, and the others might be kind enough to vacate the room while you do that, and then we can come back and see where we are, because I think, to the extent that you want to persist with an unpaid leave, bearing in mind it's not something you've raised, then I think you'd need to, consistent with what Mr Ferguson is saying about other awards, if you want to move from where we are, you'll need to give some thought about how you're going to persuade us on that prospect.




JUSTICE ROSS:  Can I just confirm with the unions, is that a fair summary of your position?  I understand there are nuances to it, and I understand what you say about the stand down and all that, and there's been the toing and froing about the jurisdictional issues and the rest, but at the end it really comes down to they don't currently have the power to direct unpaid leave, and you don't want them to have it for the reasons you articulated, and that's really the main beef.  There's the argument around notice, and the accrual point, but the thing that's got you most worked up, if I can put it that way, is this is a new direction.  Having regard to the context where shutdowns are shifting as well, and all that material, and you don't think it's necessary to give effect to the modern award objective and we shouldn't do it seems to be the nub of it.


MR THOMAS:  That is the nub of the issue, at least as far as the CFMEU is concerned, and I say in that it does raise the question of whether or not it actually can be done, but that's a separate issue in that context.




MR THOMAS:  But, yes, as far as the CFMEU is concerned, it's that issue of leave without pay.


JUSTICE ROSS:  All right.  Mr Guy?


MR GUY:  Similarly for APESMA, your Honour.


JUSTICE ROSS:  I understand that the AMWU has two fundamental issues; the notice and this one.


MS DEVASIA:  That's correct, your Honour.


JUSTICE ROSS:  But this one sort of generated the broader range of arguments ‑ ‑ ‑




JUSTICE ROSS:  ‑ ‑ ‑ about jurisdiction, merit, et cetera.


MS DEVASIA:  Exactly.  That's correct.


JUSTICE ROSS:  All right.  If we stand down until 10, would that give you enough time and ‑ ‑ ‑


MR THOMAS:  Yes, it would, your Honour.


JUSTICE ROSS:  All right.  Thanks.

SHORT ADJOURNMENT                                                                    [9.44 AM]

RESUMED                                                                                             [10.02 AM]


JUSTICE ROSS:  Mr Sebbens?


MR SEBBENS:  Your Honour, I might just seek clarification, both from the Bench but also primarily from the unions just in relation to the question that you put before you adjourned briefly, which was that the nub of the question is the ability of an employer, under the relevant clause in the Black Coal Mining Industry Award, to direct the taking of unpaid leave.  I just wanted to clarify whether or not it was the issue about the directing of taking unpaid leave or the concept of unpaid leave more generally.  On one view, if it's just about the ability of the employer to direct that might have a different complexion than if it was, say, a more fundamental one.


JUSTICE ROSS:  All right.  So if we look at the provisional shutdown term, if I can as the parties to have a look at that, and I can at least set out my understanding and then go to the unions.  If you look at paragraph (d)(i) the first – I hadn't anticipated there was an opposition to the first point, because that's really about the employee electing to do what they wish to do.  But the issue came in in relation to (ii) towards the end of it, where it says:


Then the employer may direct the employee to take a period of accrued paid leave.


No difficulty at that point.  It's then the – it would involve the deletion "or unpaid leave" there, and it would involve the deletion of (iii).  So it is the direction, as I understood it.  Was that your question, Mr Sebbens or ‑ ‑ ‑


MR SEBBENS:  Yes, it is.


JUSTICE ROSS:  All right.


MR SEBBENS:  Yes, that is the question.




MR THOMAS:  Yes.  That's correct, your Honour.  If an employee wishes to take leave without pay then we have objection to that for obvious reasons.  It's the capacity of the employer to direct that an employee take unpaid leave that is our problem area because ‑ ‑ ‑


JUSTICE ROSS:  Yes.  No, that's fine.  That's as I understood it.  Do the other unions have a different position or you agree with that?


MR GUY:  Not at all.  No, we ‑ ‑ ‑


MS DEVASIA:  We agree with that as well.


JUSTICE ROSS:  All right.  There you are, Mr Sebbens.


MR SEBBENS:  The reason why I sought that clarification, your Honour, is because the clause as it currently stands, put to the one side the provisional clause that the Commission has drafted, the clause as it currently stands, on one view, has the result that employees that don't elect to take paid leave or leave in advance are then in a circumstance where if the operation is shut down, there's no available work for them to perform, and I think this is perhaps where the employers and the unions part ways, but on the employer's side of things, the employer would say, "Well, the end result of that is that employees are then effectively off pay, whether we call it unpaid leave or we call it something else, there's no work to be performed, the operation has shut down, employees are off pay".  That's the end result of not electing to take paid leave or to take leave in advance.  Historically, and it may be that the current drafting is a little infelicitous but the historical position was, on my instructions indeed, that that is the way in which the clause operated, and in fact in the drafting of predecessor awards while, again, it's not as express as it perhaps ought to be, but it's certainly closer to the mark, that is, that if employees aren't on paid leave, then they've got no other entitlement to pay during the period of the shutdown that the employer how so directed.


JUSTICE ROSS:  But that's probably by operation of other provisions and stand down and the like might come into play there, but at the moment, as I understand it, there's no capacity for the employer to direct them to take unpaid leave in those terms.


MR SEBBENS:  Not to direct it, no.


JUSTICE ROSS:  No.  So to that extent if the words, "or unpaid leave" were deleted in (ii), and if (iii) was deleted, then if, in (f) it just said, "the employee must take paid annual leave in accordance with the direction" and you delete "or unpaid annual leave", then you've also got (g) dealing with the leave in advance point ‑ ‑ ‑




JUSTICE ROSS:  ‑ ‑ ‑ and agreements reached there.  If you're content with those deletions.


MR SEBBENS:  I'm not, your Honour.  I asked for clarification for the very point of just understanding what the issue was.


JUSTICE ROSS:  Yes, all right.


MR SEBBENS:  But, no, my instructions are we're not content for those parts of the provisional clause to be deleted.


JUSTICE ROSS:  Then why should a clause be put in to give you a right that you don't currently have?


MR SEBBENS:  Perhaps just go back a step, your Honour, which is that our obvious concern is that we'll be faced with a circumstance where shutdowns will be just completely be frustrated, that is, that employees who take a view that they don't wish to take the leave that they've accrued, or leave in advance, will then just say simply to the employer, "Well you might be shutting down the operations, do that if you wish, but I'm ready, willing and I'm available to perform work.  I will attend and, you know, I will expect to be paid".  That's certainly not the way in which the clause has operated in the industry in the past, either on the current drafting nor under the predecessor awards.


JUSTICE ROSS:  On the current drafting, it doesn't contemplate you directing them to do anything.




JUSTICE ROSS:  Other than to take their accrued leave.


MR SEBBENS:  Yes, I accept that it does not expressly provide for that.  Perhaps if I can just very briefly, your Honour, take you to those historical clauses, and that might inform how that clause now has been drafted in 25.10.




MR SEBBENS:  The historical clauses were – perhaps I can just read it out to you.  This is in the Coal Mining Industry Production and Engineering Consolidated Award 1997.  Clause 29.11 provided a very similar clause to what is now at 25.10 in the current drafting.  It says:


An employer who shuts down all or any part of its operation must give employees at least 28 days' notice of the shutdown or such shorter period as agreed between the employer and the affected employees;


(2) employees directly affected by the shutdown who have annual leave credits may take all or part of those credits during the shutdown period;


(3) employees directly affected by the shutdown who are not yet entitled to annual leave may take leave during the shutdown period calculated using the formula in 29.9.


That formula concerned and was headed, Leave for less than a full year's entitlement, and then set out a formula.  And then (4) was:


Payment for the leave will be at the employee's classification rate immediately prior to commencing such leave.


There was a very similarly worded clause in the Coal Mining Industry Supervision and Administration Interim Consent Award 1990.  It ended up effectively being called the Staff Award colloquially, and a slightly differently worded, but quite close drafting in the Coal Mining Industry Award Deputies and Shotfirers 1990 Award.  That particular clause says in (k), that's in clause 17:


Where an employer decides to shut down the mine, or a section or sections thereof, the employer, at its discretion, pay leave on a proportionate basis to those employees who have not qualified for a full entitlement of leave.  An employer who decides to shut down the mine or a section or sections thereof shall give four weeks' notice.


That concept of a proportionate basis has its origin in awards prior to the ones that I've just referred to.


JUSTICE ROSS:  Yes.  But that no longer applies because it accrues with each hour worked under the NES.




JUSTICE ROSS:  So the old restriction that you might not accrue any entitlement to leave until 12 months' service, for example, those have now gone.




JUSTICE ROSS:  So we're now with 25.10 it does raise - in the current award there are the three aspects; there has to be at least 28 days' notice or such shorter period as is agreed between the employer and employees affected, leave aside the debate about the period of notice, that clause is captured in the provisional view.  Employees directly affected, who have an entitlement to take annual leave, may take all or part of that entitlement during the shutdown period; and then the third is those who are not yet entitled to sufficient leave may take their accrued leave.  That's really – that last bit is really a function of how leave used to accrue under the old provisions.




JUSTICE ROSS:  And doesn't add a lot in the current context.  But nowhere does it deal with the direction.  The direction is in 25.4(c).




JUSTICE ROSS:  It relates to the taking of all or part of an annual leave entitlement.




JUSTICE ROSS:  Provided there's notice in writing.


MR SEBBENS:  Yes.  It's accepted, your Honour, there's no express words within the clause currently drafted nor did there seem to be in the predecessors that directly says, expressly says, you don't have enough leave or you don't elect to take, you know, unpaid leave.  That wasn't dealt with at all in the clauses that you're off pay, but the reality was, and my instructions are, that that is indeed the operation of the clause in practice.  I understand that.


JUSTICE ROSS:  Do you have any evidence to support that proposition?


MR SEBBENS:  No.  I may be able to call it.  I accept that we're here to hear the matter now, but I ‑ ‑ ‑


JUSTICE ROSS:  Really it would be a question of what power did you use to put people on unpaid leave?  What's the source of that power?


MR SEBBENS:  Again, I would need to seek instructions on what the view was about what was considered to be the power to put people off on unpaid leave.


DEPUTY PRESIDENT KOVACIC:  Mr Sebbens, I think some of the CFMEU contentions previously is that invariably where these issues have arisen in the past, the parties have sat down and sorted through an arrangement by agreement to the extent that, what might have occurred in the past, is by agreement, and if that were the case it would be of interest to know about as well.


MR SEBBENS:  I note that my friend said that at a previously hearing that it was by agreement.  I understand that there was some discussions about the Glencore circumstance that was being specifically talked about as an example.  I'm not sure that there was agreement on that finer level of detail.




MR THOMAS:  I could add to that, your Honour, on the Glencore thing my understanding talking to some people is that there were some provisions in enterprise agreements which may have allowed for the taking of leave without pay in the circumstance where they were closing for economic reasons, for want of a better word.


JUSTICE ROSS:  All right.


MR SEBBENS:  So perhaps if I can then move perhaps away from the history to why we say there ought to be provision for directing people on to unpaid leave or the simple taking of it, and that is, and we've dealt with this in our submissions, there are circumstances beyond just Christmas or Easter shutdowns for which annual leave close downs or shutdowns are utilised.  My friends have pointed to one of those circumstances which is for a maintenance shut, for significant overhaul of equipment or maintenance days, but we have listed, in our submissions, a series of other circumstances where it's in the interests of both the employers and employees that there be shutdowns or close downs and utilising annual leave, and they're detailed in paragraph 19 of our submissions.  I won't go to them in detail but they were briefly dealings with geological and geotechnical circumstances, bearing of longwall machinery and its recovery, market conditions as well as dealing with stockpiles reaching their full capacity.  There may well be other circumstances in which it's in the interests of employers and employees that annual leave be utilised, perhaps via a shutdown, in order that employees don't need to be then stood down, perhaps under section 524, or that if, in the worst circumstances, employees need to be made redundant because the business needs to be, or is significantly impacted by those particular circumstances.


From a practical operation of the clause, and one needs to obviously consider the modern awards object that the clause does need to be simple and easy to understand, but it also needs to be obviously practical in its operation and not be perhaps internally inconsistent or frustrated in any way, we say that the provision of unpaid leave within a shutdown clause is quite orthodox.  There are a series of other awards the Commission has made ‑ ‑ ‑


JUSTICE ROSS:  Sure.  But the other awards also have a range of other provisions, including longer notice periods, as is set out in Ai Group's submissions, some for three months; others confine the nature of the shutdown to Christmas.  And we're not looking at the other awards; we're looking at your award.




JUSTICE ROSS:  Speaking for myself, if you want to depart from the powers you have in the existing provision ‑ ‑ ‑




JUSTICE ROSS:  ‑ ‑ ‑ to direct someone to take unpaid leave, I'm going to want to hear evidence about why the current one isn't operating.




JUSTICE ROSS:  Because ultimately why is it necessary to vary it in the way you contend to meet the modern award objective?  You didn't agitate the unpaid leave issue.




JUSTICE ROSS:  I accept that that's been us, but it having been pointed out that there's no current power, and I think it probably comes down to the extent that you've exercised the power, it's been a stand down power, well, that would still be available, constrained by the provisions of the Act.




JUSTICE ROSS:  So I think you need to reflect on this issue and be given an opportunity to put material, and consider your position.




JUSTICE ROSS:  Because at the moment and for the reasons Ai Group has articulated - although, you know, these things are always contextual.  Parties always argue that you don't need to worry about the existing award provision when it doesn't suit them.




JUSTICE ROSS:  Then you do need to worry about it when it does.  Our general approach has been, well, that is the existing provision.  We have expressed views about which parts of it don't sit conformably with section 93 and the like, but, you know, on reflection I wonder if we hadn't put in the unpaid leave whether we would be here arguing about anything other than the notice.




JUSTICE ROSS:  I think you need to reflect about what you really need to do and how big a case you want to make this, is the short point.


MR SEBBENS:  Yes.  Look, your Honour, I hear what you've just said and I pursued the argument for the moment because we're here - - -


JUSTICE ROSS:  No, that's fine.  We'll give you until the end of next week to consider that position.




JUSTICE ROSS:  But if you do wish to pursue it, then you'll need to put in draft directions for the filing of evidence.




JUSTICE ROSS:  On the two points:  why you say it's necessary, so what is the problem with the current clause historically that didn't give you the power and, secondly, where you've said that you've exercised it in practise, when did that arise.




JUSTICE ROSS:  At what locations and what was the legal source of the power to do it.  Okay?


MR SEBBENS:  Very well.  I won't continue on with submissions at this point.


JUSTICE ROSS:  No, and I think we'll leave that issue of the unpaid leave for the moment until we get clarification about the extent to which the matter is going to be pressed, bearing in mind at least speaking for myself what I would be looking to get by way of an evidentiary case.


MR SEBBENS:  Yes.  We don't want to unnecessarily take up your time.




MR SEBBENS:  Nor pursue a matter that on reflection we don't need to pursue.




MR SEBBENS:  So I appreciate you raising that with me.


JUSTICE ROSS:  Look, I wonder can I raise another issue and it is touched on in the CFMEU's submissions although not in this way.  The other option that the parties may wish to consider - it needs a date to raise it since we've raised the unpaid leave and look where that has got us - is the leave in advance point.  That may be an alternative to any of these issues that provides that, you know - just a reference - the employer may also grant leave in advance.  That's an another option in addition to the employee electing to take paid leave, unpaid leave; they can also elect to take leave in advance and, if they do, then you would accommodate that.




JUSTICE ROSS:  It would seem to me that that combination may well provide - it provides some additional flexibility to you, but in the context of a provision that it would be an employee election and there is a capacity under the award now to reach an agreement on leave in advance.


MR SEBBENS:  We would have no opposition to that, your Honour, and you'll see - which is contained in the Full Bench's decision - that the draft clause that we put forward at 25.10 - this is at paragraph 13 of the judgment.




MR SEBBENS:  25.10(d)(ii) does include already the concept of annual leave in advance in accordance with 25.9.


JUSTICE ROSS:  Yes, all right.


MR SEBBENS:  I might leave my submissions there, your Honour, based on what we've just had in our exchange.


JUSTICE ROSS:  Okay.  Thank you.  Perhaps if I can go to the unions around that leave in advance point and also if there is anything further that you wish to say about the notice issue.


MR FERGUSON:  Before we get to that, your Honour, Ai Group does have a relevant interest in this award, although involvement in proceedings has been limited for reasons including resource considerations.




MR FERGUSON:  I would like a similar opportunity to come back to the Full Bench about this issue around unpaid leave and whether it's necessary - - -


JUSTICE ROSS:  Sure, but if you're pressing it, you're going to have to run an evidentiary case, too.


MR FERGUSON:  I understand.  I raise this for two considerations that come to mind, not fully thought through.  We have been watching the proceedings and obviously to the extent that there is a change in the conditions where there is now a new limitation on the right to take - or direct taking leave falling from the bench, and that might be in order to address a concern about 93(3) - - -




MR FERGUSON:  - - - that in itself would be a catalyst for an enhanced right, potentially, to direct the taking of unpaid leave consistent with our submissions that we have raised generally.  I raise that firstly because there may be a new ability for employees to refuse the taking of leave.  Secondly, and it's something - - -


JUSTICE ROSS:  You might want to think about the consistency with your general submissions, as well.  Your general submission is don't disturb the existing - or do as little violence to them as you can.  I don't think you can take the opportunistic view that where more flexibility suits you, you will argue for that change, but you won't argue - and you'll argue against others.


MR FERGUSON:  I understand.  They're not trying to, but the reality if is there is a new restriction on an ability of an employer to direct the taking of leave, you need to avoid the ludicrous situation where an employee for their own personal circumstances might say, "I won't take leave", or refuse to take leave.




MR FERGUSON:  And you are left compelled to let the - and that's the first issue.  I understand that.


JUSTICE ROSS:  But that's not the context here.  The context here was simply there was the capacity to direct the taking of paid leave.  There was no capacity for unpaid leave, nor has it been agitated by the main employer interest that they wanted a capacity to direct the unpaid leave.  So I regret that it has come to this and we have raised it, but I think you need to think long and hard about whether it's something you're going to pursue.


MR FERGUSON:  And we would - my organisation would - but I raise it partly for reasons of consistency with my other submissions.  We would need to think about that plays out in the context of this particular industry.  It may not be necessary given their particular circumstances.


JUSTICE ROSS:  Look, other awards have a capacity to direct unpaid leave.  Similarly, where that has arisen, well, if there is to be any change to that, the unions haven't agitated in those awards for any change to those provisions.  For our part, we wouldn't propose to go through that issue.  Our concern relates to the extent of compliance with the NES and that has fallen from what we have already said.  So if a party wants to raise it, they can raise it, but similarly if they want to depart from an existing framework, they have to mount a merit argument.


MR FERGUSON:  Look, I don't quibble with that, obviously.  We raise it firstly because to the extent that there is a departure from the existing framework, anyway, there may be a consequential change that needs to be made and we accept that there will be arguments about that, and it might play differently in this particular industry if there is - - -


JUSTICE ROSS:  It does seem to me that it's a very different construct to say there is a problem with - the current clause only deals with direction to take unpaid leave; we have made a finding about noncompliance; we have addressed the finding of how you comply; we have done that in the thing; we have not added the unpaid leave in order to compensate for that.  That has not been the approach we have taken.  We have simply picked it up from another template.  Nor was it sought, so I think it's a very different - - -


MR FERGUSON:  The motivation may be different and I understand that.




MR FERGUSON:  The second issue I raise - and I raise this now in only very broad terms because I need to think through it - is that when you look to the wording of 25.10 and you consider that in the context of the clause as a whole, it appears to me that it operates on the presumption that there is some sort of absence by the employees as a consequence of the shutdown, and that it provides a vehicle for dealing with that by enabling employees to access a period of leave.


Now, I would like to give further thought to that, but I say that because there seems to be very little utility for this provision absent that being the approach, because there are already broad rights for an employer under this clause when viewed as a whole to direct the taking of leave and for employees to mandate their access to leave.  Of course the history that Mr Sebbens went to may well reinforce that.


Now, I'm not familiar with this, but it's not dissimilar to the provisions in other awards that provided for, in effect, an absence from work in the context of a shutdown and the shutdown was enabled by the award, and then just an ability to access leave to moderate the negative impacts upon that.  I want to merely think through those issues, because I don't think it is clear‑cut to say that the way the award operates now doesn't deliver an ability to direct the taking of unpaid leave or an outcome where an employee is upon unpaid leave, although I readily accept the words do not expressly provide for that and so I merely seek that opportunity to put something further in relation to that because we do have a relevant interest in that.


JUSTICE ROSS:  Sure.  That will be the end of next week, as well.


MR FERGUSON:  Thank you, your Honour.


JUSTICE ROSS:  Can I go back to the unions about the leave in advance point and anything you wanted further to say about the notice issue.


MR THOMAS:  Your Honour, we're content to allow the CMIEG to consider its position and come back at the end of next week.  We will take the matter from there.




MR THOMAS:  On the leave in advance point, I note that subclause 25.9 already allows for leave in advance.




MR THOMAS:  That is a clause that was consistent with the common issue outcome.  As long as leave in advance is taken consistent with that provision and it's up to the employee, then we would clearly have no objection to it.


JUSTICE ROSS:  All right.


MR GUY:  Similarly from APESMA, your Honour, we will wait and see what the employee groups have to say.


JUSTICE ROSS:  Yes, all right.


MS DEVASIA:  That would be our position, as well.


JUSTICE ROSS:  All right.  Was there anything further you wanted to say about your notice issue?


MS DEVASIA:  With the notice, we were thinking that - we basically stand with our written submissions.  There is nothing further to add other than that.  I think both the CFMEU and APESMA are also on board with the notice requirements, so other than the written submissions, nothing further.


JUSTICE ROSS:  No, that's fine.  All right.  Thank you.  Well, that seems to deal with Black Coal.  Was there anything further you wanted to say, Mr Ferguson, about your general - - -


MR FERGUSON:  Yes, but I'll be brief.




MR FERGUSON:  Obviously our involvement in these proceedings have partly been triggered by the observations of the Full Bench that there may be broader ramifications.  Now, our concern relates to the prospect of broader changes being made of a similar nature to other awards in order to ensure conforming with 93(3).  Now, I suppose the crux of our argument, if I can come to that, is the proposition that we say the shutdown provisions currently in awards should be considered compliant with 93(3) and that there is no need to reconsider those more broadly.


In this respect, we obviously contend that there is a difference between provisions dealing with the direction to take leave in the context of a shutdown as opposed to a general right to direct the taking of leave or even a right in the context of excessive leave accruals.  Obviously that in some awards will apply with more force where there are additional safeguards.  Not only safeguards, but where the operation of the clause is narrower.


I take, for example, in particular a context where the shutdown only occurs for the purpose of directing the taking of leave.  That is a much narrower situation, but ultimately we say that the bench should in this proceedings proceed on the basis that the clauses are fine as they are, if you will - and I don't mean to be flippant about that - and the parties who have a contrary view should advance an argument in support of that.  I say that in light of the fact that we really haven't had any parties in the context of this review advancing a proposition that they are operating unreasonably in practice.  That is simply not something that has come to light in any serious way even with the catalyst of this most recent decision.


We do appreciate though that the Full Bench is trying to ensure or guarantee, if you will, that the awards are compliant with 93(3), but we say that you shouldn't lightly include words that would effectively just guarantee that outcome, because (1) it probably doesn't get past the necessary tests as contemplated by section 138 if they are already compliant.  Also, we think that it could give rise to practical issues in that if the clauses as they are, dealing with a shutdown, are operatively effectively and an employee has no valid right to refuse that direction, simply putting words to that effect might give rise to disputational confusion about whether individuals in particular circumstances can now assert that they don't have to take the leave.  We say that's not something that should be encouraged lightly.


Look, our submissions go through our arguments in detail, but one of the propositions is that if there is to be a change to the existing framework merely to ensure compliance - and we understand that the bench may take that view - that may be a catalyst for a reconsideration of the existing framework in some of these provisions and obviously the issue about an ability to ensure there is access to unpaid leave or the direction to take unpaid leave is foremost in our thoughts there; because if we're now in a change paradigm where employees can refuse a direction to take annual leave in the context of a shutdown, there needs to be a mechanism to ensure that the shutdown can still occur in those industries, because in many industries they are important provisions and we would say there would need to be reconsideration of that point.


We do foreshadow that there may also be a need to reconsider the necessity for some of the additional safeguards that are in there, as well.  Put frankly, if the direction can only operate where it's reasonable, it calls into question whether you still require the additional protections, but that would obviously be something that would raise on an award‑by‑award basis.  Really that brings me to the ultimate conclusion, which is that in the event that anything further is to be contemplated in terms of a specific proposal, we would want to be heard further in relation to that, but there is nothing beyond that, your Honour.


MR THOMAS:  Your Honour, could I interrupt?




MR THOMAS:  Just as a point of clarity, I understand that this matter essentially involves the conformity of a closedown period with section 93(3).  It does also raise an issue about whether the Act - or whether there is power to insert a clause that directs an employee to take unpaid leave.  Do you envisage that would be something that the CMIEG would consider in the event that it decides to take this matter further?


JUSTICE ROSS:  I think if they take the matter further, it will be a larger case for the reasons you have articulated, both evidentiary and they will need to address those issues, but let's see where they go with that.  In relation to the other awards, our approach would be to adopt an award‑by‑award examination of those provisions as to whether any amendment is necessary consequent on section 93.  If we formed any provisional views about that in relation to a particular award, we would probably go down a path of publishing those and give interested parties an opportunity to comment.


It is clear on an examination of those provisions in other awards that they are quite diverse.  Some of them provide extended periods, some of them only permit shutdown in limited circumstances and all of that goes to the question of reasonableness.  It may be that in some it's not necessary to amend.  In others, the amendment to include a reasonableness requirement on any direction might be necessary, but we'll wait and see where we go.


I think the same approach that we were adopting with the CMIEG in this case - that is, if you want to depart from an existing provision beyond what we might be suggesting is necessary to comply with 93, then you will need to run your case.  Similarly, if you want more safeguards than that or any union with an interest in those awards does, they will need to run it.  If an employer wants to have less, then they will need to run that argument, as well.  It will be done in each award, because the shutdown operations and the award history in each award is different.  Okay?  All right.


We will hear from the employer position by the end of next week and communicate that to the unions.  If that issue is not pursued, it seems to us that other than the notice question, the other issues have fallen away, so we would determine the matter on the basis of what has been put.  We will deal with the debate between you about how much notice, but the other matters would appear to be largely resolved in this award if that is the position that is arrived at.  Anything further?


MR SEBBENS:  Just one point of clarification, your Honour.


JUSTICE ROSS:  Yes, Mr Sebbens.


MR SEBBENS:  If the CMIEG were not to press this request for unpaid leave to be provided, the amendments that you indicated to me would be the ones - - -


JUSTICE ROSS:  That you had put.  That's right.






MR SEBBENS:  With I think one addition, which you have now put to the parties, which is potentially the inclusion of a cross‑reference to clause 25.9 about leave in advance.






JUSTICE ROSS:  Look, it may assist if you - it's both the amendments that I was putting to you, the amendments that you had advanced in your earlier submission - - -




JUSTICE ROSS:  - - - and that cross‑referencing, and when you reply, if that is the position, you might put a marked up version in and we can just confirm that that is the case with the other interests.




JUSTICE ROSS:  And proceed on that basis.  Then what will fall to us will be the resolution of the dispute about how much notice.


MR SEBBENS:  Yes.  Thank you.


JUSTICE ROSS:  All right.  Thanks very much.  We will adjourn.

ADJOURNED INDEFINITELY                                                        [10.40 AM]