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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)










9.31 AM, MONDAY, 9 OCTOBER 2017


JUSTICE ROSS:  Could I have the appearances please, firstly in Melbourne.


MR D GUNZBURG:  May it please the Commission, Gunzburg initial D, for the Coal Mining Industry Employer Group.


JUSTICE ROSS:  Thank you Mr Gunzburg, and in Sydney.


MR T SEBBENS:  For the Coal Mining Industry Employer Group, Sebbens initial T, solicitor.


JUSTICE ROSS:  Thank you.


MR A THOMAS:  If the Commission pleases, Thomas initial A, for the CFMEU, Mining and Energy Division.


JUSTICE ROSS:  Thanks Mr Thomas.


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


JUSTICE ROSS:  Thanks Ms Devasia.


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


JUSTICE ROSS:  Thanks Mr Guy.  In response to directions issued on 4 August this year, the parties have filed submissions and witness statements.  There's a witness statement from the Coal Mining Industry Employer Group from Mr Gunzburg and there are three witness statements that have been filed from the CFMEU.


Perhaps if we deal with the Coal Mining Employer's witness statement first.  What I had intended to do was mark each of the statements as exhibits and deal with any corrections or challenges to those statements and then put Mr Gunzburg in the witness box as we had some questions for him.  Is there any objection to that course?  No?  All right.  Just bear with me for a moment.


We'll mark Mr Gunzburg's witness statement as exhibit CMIEG1.



Any objections to that statement?  No?


We'll mark the statement of Robert James Williams as exhibit as CFMEU1.



Any objections to that statement?  No.


We'll mark the statement of Robert Timms as exhibit CFMEU2.



Any objection to that statement?


MR SEBBENS:  No, your Honour.


JUSTICE ROSS:  Thank you.  We'll mark the witness statement of Stephen Alan Pearce as exhibit CFMEU3.



JUSTICE ROSS:  I think those are the statements.  Mr Gunzburg, would you mind taking the witness box and my associate will swear you in.


THE ASSOCIATE:  Please state your full name and address.


MR GUNZBURG:  David Maurice Gunzburg (address supplied).

<DAVID MAURICE GUNZBURG, AFFIRMED                              [9.35 AM]

EXAMINATION-IN-CHIEF BY JUSTICE ROSS                             [9.35 AM]


JUSTICE ROSS:  Mr Gunzburg, have you got a copy of your statement in front of you?‑‑‑I do.

***        DAVID MAURICE GUNZBURG                                                                                             XN JUSTICE ROSS


Can I take you to paragraph 7 of the statement?  It indicates there that the survey was conducted of company groups that form part of the CMIEG.  How many company groups form part of the CMIEG that are covered by the Black Coal Award?‑‑‑Some 13 or 14 from memory, your Honour.


In terms of that constituency, that group of 13 or 14 company groups that form part of the CMIEG, how many other employers are covered, to your knowledge by the Black Coal Mining Award?‑‑‑There'd be a large number of contracting type companies that work from time to time for principally the CMIEG members and that number would be very large, but I don't know what it is.  There's I think, three or four smaller mines around Australia which are operated by companies which are not members of the CMIEG, but they're largely smaller individual mines.


Can I take you to paragraph 10 of your statement?‑‑‑Yes.


As I understand it there, you're referring to the nine company groups that have responded to the survey?‑‑‑That's correct.


You say there that that group represents approximately 28,000 workers in the black coal mining industry in New South Wales and Queensland across 55 mines?‑‑‑That's correct.


If you look at the mining as opposed to the employees by contractors, you look at those employed by miners, what sort of proportion is that of all of the workers covered by the Black Coal Mining Industry Award and all of the employers?‑‑‑I can give you two figures to sort of represent that, your Honour.  All of the CMIEG members employ around 34,000 employees.  The 28,000 which are covered by this particular survey is around 80, 82 per cent of the total CMIEG membership.  The most recent figure I have for total employment in the coal mining industry from ABS surveys, which includes brown coal and lignite mining, fairly small groups, is 48,000 employees.  So it's around 60 per cent of the ABS survey of total employees at the time the survey was taken in May 2017.


Have you had an opportunity to read the CFMEU submission in these proceedings?‑‑‑I have.  I don't have it with me at the moment, though, your Honour.


Have you read what they've said about the survey, the observations they've made?‑‑‑Yes.  I don't recall any particular except that it was difficult for them to know exactly when the instances of shutdowns refer to.  I don't recall the other submissions.

***        DAVID MAURICE GUNZBURG                                                                                             XN JUSTICE ROSS


I can hand you an extract from the CFMEU submissions, if that assists.  It's really whether you wish to make any comment about any of the observations, that's all?‑‑‑In respect to 39.1 the CFMEU says that it's not possible to determine the frequency of the use of shutdowns.  I'm not sure how you would derive a frequency of shutdowns, but I think we would probably agree with the CFMEU that it's infrequent but it does occur.  Apart from that, it's hard to say.


If I could just ask you to confine yourself to their comments on the survey?‑‑‑I'm sorry.


They're saying from the results of the survey it's not possible to determine how frequent the use of shutdowns is?‑‑‑That's probably correct, your Honour.  As a mathematical frequency, I don't know how you would calculate it, that's for sure.


Were there any other comments you had?‑‑‑No, your Honour.  Mr Sebbens may have something to say as an advocate on our behalf, but I don't think there's anything I need to respond to, unless there's something which caught your eye.


No.  I was really putting it to you as a matter of fairness, that some comments have been made in relation to the survey, and it was to the extent that those comments were factually inaccurate or otherwise, to provide you with the opportunity to comment, that's all.  Thank you, Mr Gunzburg.  Is there anything arising from any of the parties in respect of any of those questions?  No.


COMMISSIONER HAMPTON:  Mr Gunzburg, just before you finish, then.  In relation to the nine companies that are identified in paragraph 8 of your witness statement, are they all subject of enterprise agreements?‑‑‑I'm sure all of them have enterprise agreements covering some proportion of their workforce.  There would probably be some who have areas that are not covered by enterprise agreements as well.


Are those comprehensive agreements?  Do they include shutdown or closedown provisions, for instance?‑‑‑It depends.  Unfortunately there's no clear picture.  Many of the enterprise agreements contain a clause which mentions shutdowns.  Sometimes they're simply a reference to the award clause, sometimes they're moderately comprehensive, sometimes they're simply one aspect of what happens during the shutdown which is covered.  So it's a wide variety of circumstances.


JUSTICE ROSS:  Anything further for the witness?  No.

***        DAVID MAURICE GUNZBURG                                                                                             XN JUSTICE ROSS


MR SEBBENS:  No, your Honour.


JUSTICE ROSS:  Thank you for your evidence, Mr Gunzburg, you're excused.

<THE WITNESS WITHDREW                                                            [9.42 AM]


JUSTICE ROSS:  Mr Sebbens, we've had the opportunity to read your submissions, so there's no need to take us through that unless there's a particular aspect you wish to highlight.  What do you wish to say orally?


MR SEBBENS:  Perhaps if I could just briefly and concisely confirm what the position of the Coal Mining Industry Employer Group is, and then I might make some brief comments, your Honour, in respect of the submissions that have been filed by the union just in reply.  Perhaps if I just start with the position of the Coal Mining Industry Employer Group.


In respect of the clause which is sought, we confirm, as is annexed to the submissions at annexure A, that the clause that is supported by the Coal Mining Industry Employer Group is there set out.  It is based upon the proposed clause which was attached to the directions issued by the Full Bench on 4 August of this year with some amendments, which are shown in underlining.


JUSTICE ROSS:  Can you speak into the microphone, Mr Sebbens.  We're just having a little trouble hearing you.


MR SEBBENS:  Yes, I'm sorry.


JUSTICE ROSS:  I understand that the clause you're proposing at annexure A to your written submissions is largely reflective of the provisional clause attached to our directions of 4 August.  As I understand it, the departures are indicated by underlining in your draft.


MR SEBBENS:  That's correct.


JUSTICE ROSS:  And they essentially focus on the requirement or the capacity for the employer to direct that an employee take leave without pay for the period of the shutdown, that is (iii).


MR SEBBENS:  That's correct, your Honour.  We've also, as a feature of paragraph (d)(i), we've made express a cross-reference, of course, two and employee being able to take leave in advance.  I'm not sure that there's any opposition to that from the unions, but we thought as a matter of completeness and simplicity of understanding that there should be that express reference.  In respect of the clause, of course what the CMIEG seeks is a clause that is simple to understand, both for employers and employees alike, and also a clause that would enable a shutdown to be implemented in an effective way.


We say that the clause, as amended and set out in annexure A makes clear in express terms what occurs if an employee has available accrued annual leave and what occurs for an employee who has insufficient accrued annual leave to cover the period of the shutdown, and those features are as primarily set out in paragraph (d)(i), (ii) and (iii).


As you've noted, your Honour, where we appear to depart from the union in respect of the clause is both in respect of the ability to direct the taking off leave during a period of shutdown, but also what occurs with an employee who has insufficient leave for the entire period of the shutdown.  There also appears to be a question about whether or not (e)(ii) in particular is sufficient to be compliant with section 93(3) of the Fair Work Act.


In our submissions we've dealt with each of the provisions under the Act.  We say that the clause as amended appearing in annexure A would meet the Modern Awards Objective, primarily that it would be simple and easy to understand under section 134(1)(g), and accordingly would then meet the test of being necessary under section 138.  We've also set out how we say it's permissible under sections 93(3), 139(1)(h), 55(4) and 142(1).  I won't take you through our submissions there again, but I just note that we say that the clause as amended would meet those particular provisions.


We further say that it would be consistent with both historical clauses in the black coal mining industry. Also the legislative regimes for shutdowns, including under the Fair Work Act, for award and agreement‑free employees, but also the practice of shutdowns which is evidenced by the materials filed by both the CMIEG and the CFMEU.


Perhaps if I can then respond briefly to some matters raised by the CFMEU and AMWU in their submissions.  There are two relatively smaller items that are perhaps easiest to deal with first.  The first of those is whether or not there needs to be within the clause a specific paragraph dealing with service and continuous service.  The CFMEU says that there ought to be a specific clause providing for that.


Certainly in some other modern awards there are subclauses that deal with that point.  We say that would not be necessary.  Section 22 of the Fair Work Act deals with service and continuous service, and we say there is no necessity for the clause to expressly deal with that point.  In fact the Commission, as we understand it, has taken the course of avoiding there being duplication or replication between the terms of modern awards and terms in the Fair Work Act.


The second point is in respect of public holidays and again the CFMEU says there ought to be a clause that deals expressly with that point.  Again we say that would appear not to be necessary, to deal expressly with that within the clause.  Again, the Fair Work Act in section 116 already deals with payment of employees when they are absent and there is a public holiday.


We say on that basis, similarly to the concept of service and continuous service, there's no need for a duplication of that provision in the body of the clause itself.  In respect of annual leave in advance, I think my friends appear to agree with us, but if that's not clear then we say it would be useful for there to be an express reference in the clause to annual leave in advance.  We have set that out in our proposed amendments as they appear in annexure A.


There are two more fundamental points that are raised in the CFMEU's and AMWU's submissions,  and I'll just deal with those briefly.  The first is whether or not there is already existing within the current clause of the Black Coal Mining Award, 25.10, an ability to direct employees to take annual leave during a period of shutdown.  We note that the Full Bench has already expressed a view in that regard in its March 2017 decision at paragraph 31.


Notwithstanding the view that has been expressed, we maintain that it is implicit within the clause 25.10 that there is an ability to direct the taking of leave.  That is clear in respect of the way in which the clause has been developed from predecessor awards and it can be seen from those predecessor clauses, which are set out in annexure B of our submissions and also set out in part in the submissions of the CFMEU, that initially annual leave was only able to be taken at the times nominated by the employer.  That is historically how leave was taken.


From 1988 onwards, while not expressly stated in this way, it's clear that there was a mechanism by which notice was given to employees and that there was then a requirement to take annual leave.  While there are some provisions that deal with the ability of the employee to elect to take leave without pay as a first option rather than being directed to take annual leave, it appears that there is such an ability.


That would seem to be clear from the decision of Harrison C, which is Print R4611 at paragraphs 98 to 105.  My friend Mr Thomas refers to that decision in his submissions at paragraph 34 and notes that there was an objection raised by the CFMEU in respect of an ability to direct the taking of - or apply the taking of annual leave.  Now, on a closer reading of that decision, it appears that the objection was taken that there ought not be a broader ability of an employer to direct the taking of annual leave and the unions were saying that effectively the ability to direct the taking of annual leave should only be in respect of shutdowns.


The way in which the Commissioner expresses that, it appears as though the CFMEU did concede that there was already such an ability to direct the taking of annual leave for a period of shutdown and they were opposing a broader ability by the employer to direct the taking of leave, which ended up being clause 25.4(c).  In any event, despite that analysis, there is clearly from that time onwards - from the decision of Harrison C in 1999 - an express clause, 25.4(c), which provided for an incontrovertible ability of the employer to require the taking of leave.


In particular, that clause is not limited on its face to the circumstances in which it may be deployed and we have submitted previously, and we confirm our position, that that clause was used in conjunction with clause 25.10 to avoid there being any doubt or dispute about the ability of an employer to direct the taking of annual leave during a period of a shutdown.  So it's incorrect in the submissions of the CFMEU and the AMWU to say that there is or was no ability to direct the taking of annual leave during a period of shutdown.


We say it is implicit within the clause prior to 1999 and certainly after 1999 it has been made express.  Now, what is sought by the CMIEG is an amendment to make that ability an express one within the clause itself to ensure that the clause has utility, but also to clarify any uncertainty which may arise from the impending deletion of the existing clause 25.4(c).


The second primary point of dispute that seems to be between the parties is the circumstance of the employee with insufficient leave to cover the period of a shutdown.  The unions - that is the CFMEU and AMWU - contend that it is not a consequence of the current clause 25.10 that an employee who does not elect or take paid annual leave or does not voluntarily elect to take leave without pay is then unpaid for the period of the shutdown.


We make the following points in that regard.  It can be seen again from the predecessor federal awards, which are set out in annexure B of our submissions and also in part in the CFMEU's submissions, that the language of the predecessor clauses was that employees who had insufficient leave were to take a proportionate amount of leave.  Now, while we accept that the accrual of leave has changed since that time, and certainly the wording has, as well, at that time that concept of proportionate leave - and it still has some remnants in other modern awards, that language - it's apparent that employees who were not yet entitled to a full entitlement of annual leave that would cover the entirety of the period of the shutdown were to be granted what leave they were entitled to on a pro rata basis.


It's implicit within that that they were to not be paid for the balance of the period of the shutdown or, alternatively, that what pro rata amount of leave they had would be averaged out over a period of the entirety of the shutdown, but they would only receive such amount of payment as reflected that pro rata amount.  Now, as I've said, it's implicit within that, that part of the period of the shutdown - whether in reality or just mathematically - was to be unpaid.


It's further clear from the evidence filed by both the CMIEG and the CFMEU that in practice in the industry employees who do not have sufficient annual leave are required to take unpaid leave.  That's clear from the survey of Mr Gunzburg and it's expressly set out in certain of the responses, but it's also clear from the union witnesses, particularly I respect of the Glencore shutdown in 2014, where it is noted that employees were required to take unpaid leave.


Now, notwithstanding that the unions say that was a unique situation, it's certainly an example of such a situation and a quite broad spread one, at least for that particular employer of that in fact being the case that employees who did not take a form of paid leave were on unpaid leave.  We further say that providing a clause or a subclause within 25.10 that expressly sets out the employees who do not take a form of paid leave, or do not voluntarily take unpaid leave, is completely orthodox.  If one has regard to other modern awards, we accept that the circumstances of this particular industry are different from those other - - -


JUSTICE ROSS:  Mr Sebbens, there is two points to be made about that.  One is each award has to be reviewed in its own right and we will be looking at the circumstances of this award, but the second proposition is that those award terms are to be reviewed.




JUSTICE ROSS:  They haven't been reviewed as yet?


MR SEBBENS:  I accept that, your Honour.




MR SEBBENS:  We say further, however, that when one has regard to certain legislative schemes again, it is quite orthodox that employees who do not take a form of paid leave or volunteer to take unpaid leave are place on leave without pay.  Perhaps one final point to deal with, and that is the prevalence of shutdowns.  The unions have, in their submissions noted in particular that the amendments which are sought are in respect of a clause which is infrequently used and therefore that the need for any amendment would appear to be marginal.


Now, it may be the case that shutdowns are an infrequent feature of the black coal mining industry, but it's similarly clear, on the evidence of both the CMIEG and the unions, that shutdowns do in fact occur, that they occur for a variety of reasons and those reasons are clear from the survey, but also clear from the evidence of the unions that it's not limited to just circumstances of shutdowns at Christmas time or for circumstances of maintenance, but are also deployed for other reasons and those reasons may be to avoid the circumstance that might give rise to a stand down or perhaps put at its worst, to potential redundancies of employees.


Utilising the clause in those ways is certainly of the benefit of both the employers and employees in those circumstances where it is there deployed.  The fact that there is enterprise bargaining within the industry on a broad base, again, is conceded.  We make these points.  That's not an answer to whether or not this award clause ought to be amended or not.


While it might be accepted that enterprise bargaining could deal with shutdowns, the award still has important work to do on two fronts.  One is that not all employees in the industry are covered by enterprise agreements and particularly at any one site where there might be a shutdown, not everyone one on that site will be covered by an enterprise agreement.  My friends will correct me if I overstate this, but it is relatively common that production and engineering employees or mine workers, if I can use that term, are typically covered by enterprise agreements.


It's less frequent although certainly a feature in underground mines that deputies may be covered by enterprise agreements.  But above that level, and certainly in respect of support staff, each of whom would be covered by the modern award, but also potentially reaching into classifications that are not then covered by the modern award.  Clearly the modern award has work to do and so does the Fair Work Act which provides for an ability to require employees to take leave for award or agreement-free employees.  In order for the clause in the award to have utility and for an employer to effectively put in place a shutdown, regard needs to be had to the terms of the applicable enterprise agreement and the award and the provisions of the Act in that circumstance, if there's to be a whole of mine shutdown.


We say, therefore, that it's no answer to simply say this can be cured through enterprise bargaining.  In respect of whether or not there is disputation about the way in which shutdowns have been implemented, it's accepted that there is little or no disputation in respect of the implementation of shutdowns and that is a testament, one might say, to the way in which the parties have gone about implementing shutdowns, both on the part of the employers but also employees and their unions.  But notwithstanding that, the clause still needs to be effective; it still needs to be clear on its face what is intended.


To the extent that there was a common understanding in respect of the clause as it's currently drafted, these proceedings may have illuminated that common understanding has somewhat drifted and in that circumstance, there is a need now to make clear what the new clause, if there is to be a new clause, is intended to say and how it operates.  Those are the submissions that I wish to make in addition to the written submissions, but I'm happy to take any questions that the Bench has.


DEPUTY PRESIDENT KOVACIC:  Mr Sebbens, one question.  One of the points that are made in the CFMEU submissions is that one of the circumstances in which shutdowns occur in the industry is in the context of plant maintenance.  Sometimes, and the submission is that that maintenance is quite often planned up to 12 months out in advance.  Is there anything you wish to say about that particular issue point?


MR SEBBENS:  I would be really just responding based upon my own knowledge and experience, but if that assists, we don't disagree that there is a long period of planning that goes into major shutdowns at coal mines and I think Mr Thomas refers specifically to drag lines.  Similarly, in an underground circumstance, it would be well known in advance that there is to be a long wall move or shutdown as well.


That may be a circumstance where there is a partial shutdown of a mine that could be implemented, but perhaps it's a feature of the responses from employers that while that could be used, it seems as though that in most circumstances that employees are just redeployed to other work, be that training, or to other work within an area of the mine.  Notwithstanding that, if that's not possible, then an employer ought to be able to have a mechanism by which they could shutdown and that's why we say the clause could be deployed in that circumstances in order to be able to be used effectively in such a circumstance.




JUSTICE ROSS:  Thank you Mr Sebbens.  Mr Thomas?


MR SEBBENS:  Thank you, your Honour.


MR THOMAS:  Yes, thank you, your Honour.  Your Honour, similar to Mr Sebbens, I will proceed to briefly outline or reiterate what our position is in this matter and then I wish to respond to a couple of comments made by Mr Sebbens.


Your Honour, the CFMEU position on the contents of a shutdown clause is set out at paragraphs 5 to 13 of our recent submission.  It is based upon the Black Coal Mining Industry Award as varied, not strictly speaking, but as it will be varied, to reflect the outcome of the excessive leave proceedings as set out in the decision of the Full Bench of 22 September 2016 and there was a subsequent draft order which your Honour may recall, essentially set off the proceedings that has led to where we are today.  In essence the CFMEU position is that in the event of a shutdown an employee may elect to take annual leave, or leave without pay, or a combination of the two.


JUSTICE ROSS:  Just in regard to that, do I take it - if I can take you to annexure A to the employer's submission for a moment, Mr Thomas.  Have you got that in front of you?




JUSTICE ROSS:  Do I take it from that that if you go to paragraph (d)(i), that you don't oppose the addition of the underlined words that appear there?  Bearing in mind this particular provision, part of the clause is dealing with the employee electing to take different types of leave, and it's really just the reference to the clause number dealing with leave in advance an ‑ ‑ ‑


MR THOMAS:  No, I don't propose that, your Honour, simply because in this situation the employee could, pursuant to section 25.9, take leave in advance in any case.


JUSTICE ROSS:  Yes.  So it's really the combination.  You don't mind whether it's a combination of accrued annual leave, leave in advance, or leave without pay, provided it's the employee election about that course.  But as I understand your submission, you're opposed to any capacity for the employer to direct the employee to take paid annual leave or unpaid leave to cover the period of shutdown.


MR THOMAS:  That's correct, your Honour.  I think that puts the finger right on the point.  Yes.


JUSTICE ROSS:  So it's (ii) of the draft that was circulated - the revised draft that accompanied the directions, (d)(ii); and it's (iii), or 25.10(d)(iii) of the employer's draft that you take issue with.


MR THOMAS:  (d)(ii) and (d)(iii) of the employer's draft, yes.


JUSTICE ROSS:  Yes, that's right, but (d)(ii) is the same as the other - is the draft we circulated.


MR THOMAS:  That's true, yes, in that sense, that's correct.


JUSTICE ROSS:  But I follow it's (ii) and (iii) that - and of course, you know, the balance of the clause insofar as they relate to (ii) and (iii).


MR THOMAS:  Yes, that's correct, your Honour.  And we have also, in our submission, taken some issue with subparagraph (e)(ii) on the notion of reasonableness, and that's set out in the submission, and I won't take you any further to those.  I have nothing to add.


The other - third point, I guess, in that sense, your Honour, is that we do seek that where an employee elects to take leave without pay, that the employee has that period of time treated as service; and where any public holiday falling during that period of leave without pay would otherwise be paid according to the award, the employee receive that entitlement.  And we've set out the reasons why we seek that provision as well.  In other words, it's to treat an employee as if they weren't on leave without pay for the purposes of service and public holidays.


Your Honour, Mr Sebbens addresses those two points; that is the issue of service and public holidays, by saying that it's unnecessary.  In the context of service a reference is made to subclause 22(2) of the Fair Work Act.  Our concern with subclause 22(2) is that it actually excludes leave without pay service.  So in the absence of something set out on that point, section 22(2) would preclude the employee's leave without pay from counting as service.


In that sense I might add, your Honour, that the issue of service is relevant in the Black Coal Mining Award to things like parental leave, and it also applies, at least outside of that, to long service leave.  The provisions in the award for annual leave and personal leave apply to years of employment, as distinct from years of service.


The second issue is that of the public holidays.  Again the point of the CMIEG is that's unnecessary because it's covered by section 116, which is the National Employment Standards.  However, the National Employment Standards also make clear that where an employee would not be working on the day, the employee would not be entitled to a public holiday.


The award differs in that respect when it comes to rostered days off, and it's covered by - excuse me for a second - 23.6(f), which talks about RDOs falling on a recognised public holiday, and provides such employees to be paid at a classification rate or given a day in lieu.  The award also defines a rostered day off, and that's in the definitions clause, to mean:


Any day on which the employee, by virtue of their roster, is not rostered to attend for rostered hours of work, and does not include non-working days.


Not the clearest definition in the world, I agree, your Honour, but by looking at that against a non-working day in the award, that's defined as, "A day on which an employee is never rostered to work."  So in that respect a seven-day shift worker, who can be rostered to work on any seven days of the week, the days on which that employee does not work would, for the purposes of the award, be defined as a rostered day off.


I must say, in honesty, there has been some dispute in the past over the application of that provision, hence what we are saying is that the employee should be treated no differently than if the employee had been at work; and if they wanted to have a dispute over the award, then that could be dealt with as a separate matter.  So it's for those reasons, I think, your Honour, that we seek that in the event that you opt for our clause, that those sorts of provisions should be included.


And finally, in response to what Mr Sebbens has said to you earlier, it just seems to us that it has, in a broad sense, involved a re-agitation of what we say the Commission has already determined, and that is whether or not the existing clause allows for an employer to direct an employee to take annual leave or leave without pay.


At paragraph 7 of our submission, your Honour, we take a quote from the Full Bench's decision on this matter, and therein you will see that in our submission the Commission has determined that there is no capacity for employees to be placed on leave without pay or any capacity to direct that annual leave be taken during the shutdown, save for the excessive leave requirements.  It is our submission that the CMIEG's view runs into a brick wall when it hits that conclusion.  It is a matter that has, in our view, been agitated and spoken about on many occasions.  It has been done and dusted, and there seems to be little hope in re-agitating it here this morning.


Your Honour, Deputy President, Commissioner, for the reasons set out in our submission, we would seek that the Full Bench proceed to enact a shutdown clause along the grounds sought by the CFMEU, if the Commission pleases.


JUSTICE ROSS:  Thank you, Mr Thomas.  Ms Devasia?


MS DEVASIA:  Thank you, your Honour.  I won't re-agitate or go over the submissions relating to the relevant powers and the precedents in relation to how the clauses come about, suffice to say that at the crux of our opposition to the clause both as - - -


JUSTICE ROSS:  I'm sorry, can you just speak into the microphone.  When you speak away, we can't pick you up.


MS DEVASIA:  Is that better?


JUSTICE ROSS:  Yes.  Thank you.


MS DEVASIA:  I was just saying that the crux of our opposition to the clause as drafted specifically by the CMIEG is about the employer's direction to take leave.  That power had been removed from them - - -


JUSTICE ROSS:  You are still not talking into the microphone.


MS DEVASIA:  I'm a lot shorter than my friends.


JUSTICE ROSS:  I have the same problem.  You were saying that the crux of the AMWU's opposition is - - -


MS DEVASIA:  Is the stripping of the employees' direct discretion and managing their own entitlements.  The previous shutdown clauses as raised by both the CFMEU and by my friend consistently protected employee entitlements and the draft proposed by the CMIEG simply removes that again.  We would also say that the reasonableness requirement as laid out in the annual leave decision relating to excessive leave provisions has not been met in this instance.  We also support the CFMEU's submissions regarding continuity of service to be safeguarded.


The evidence that the CMIEG has put forward in support of how a shutdown should essentially lead to this right for an employer to direct employees to take leave has not been made out.  It would be our position that the use of shutdowns in the industry has not been made out to warrant such a power to be given to the employer.  Other than that, we would rely basically on our submissions that we have filed on 3 October and our earlier submissions of 11 May.  I think the AMWU's position essentially has been set out quite clearly in those.


JUSTICE ROSS:  All right.  Thank you.  Mr Guy?


MR GUY:  Thank you, your Honour.  APESMA, as you would be aware, has not formally put down submissions in this matter today.  We are here to merely put on the record that we support the submissions of both the CFMEU and the AMWU.  Insofar as their objections and positions are made out, they are the objections and positions of APESMA, if the Commission pleases.


JUSTICE ROSS:  Thank you.  Mr Sebbens, anything in response or have you already said what you wish to say in reply?


MR SEBBENS:  Just three brief points, your Honour, and these seem to be minor points between the parties in any event, but for completeness.  In respect of service in section 22, I would just draw the Full Bench's attention to section 22(2) of the Act that both we and Mr Thomas have referred to.  Now, clearly that is talking about service for the purpose of service based entitlements under the Act itself.


It may be possible for the Commission to include a clause in the award that deals with service for the purpose of service based entitlements expressly provided for in the Black Coal Mining Industry Award, but, as Mr Thomas points out, the significant ones that are set out in the award are based on employment rather than service.


To the extent that there are cross‑references back to the National Employment Standards in the award for service based entitlements, it may not be possible - I haven't formed a concluded view on this, but I wish to draw it to the Full Bench's attention - for an award to express something different than what 22(2) says, noting that 22(2) and (3) refer to the ability for regulations to prescribe periods of leave or absence that might come within that definition, but it doesn't seem to contemplate an award doing so; but, as I say, I haven't formed a concluded view about that.


In respect of public holidays, my friend talked about other provisions of the award dealing with public holidays on rostered days off.  We simply say an employee on leave - those would still be rostered days off.  The clause, it would seem, in respect of how public holidays are dealt with on rostered days off would still operate on its ordinary construction, then together with section 116, that would appear to deal with circumstances of public holidays; but again if we're wrong on that, we have no violent opposition to it being expressly dealt with within the award.


In respect of the final point of the ability to direct the taking of annual leave, I did note to the Full Bench that you previously made comment in that regard about clause 25.10 in your March 2017 decision.  I just wanted to clarify this.  I didn't intend to cavil with what you said there, but on one of the last occasions we were before I think at least the Presiding Member, there was a question about what was the position under historical awards and the practice of directing the taking of leave.


It was my intention to deal with that point and to give reasons for why a particular practice might have been adopted, but, in any event, from Harrison C's decision onwards in 1999 there clearly was an express ability to direct the taking of leave under 25.4(c).  That was all I wished to add.


JUSTICE ROSS:  Anything further from any party?  Yes Mr Thomas.


MR THOMAS:  The only thing I could add, your Honour, in terms of the Harrison decision and others, we disagree quite strongly that there was any power in the awards to direct people to take annual leave or leave without pay.  That is in our submission.


JUSTICE ROSS:  Yes.  Thank you, Mr Thomas.  Thanks to all the parties for their submissions.  We will adjourn and reserve our decision.

ADJOURNED INDEFINITELY                                                        [10.26 AM]







DAVID MAURICE GUNZBURG, AFFIRMED................................................ PN23

EXAMINATION-IN-CHIEF BY JUSTICE ROSS............................................. PN23

THE WITNESS WITHDREW.............................................................................. PN42