TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
Four yearly review of modern awards
Black Coal Mining Industry Award 2010 –Annual Leave
[MA000001 Print PR985111]]
9.03 AM, TUESDAY, 21 NOVEMBER 2017
THE COMMISSIONER: Good morning. Please be seated. I'll take the appearances in Sydney, and please feel free to remain seated.
MR T SEBBENS: For the CMIEG, if the Commission pleases, Mr Sebbens, initial, T, solicitor.
THE COMMISSIONER: Thank you, Mr Sebbens.
MR A THOMAS: If the Commission pleases, Thomas, initial A, from the CFMEU.
THE COMMISSIONER: Thank you, Mr Thomas.
MS A DEVASIA: If the Commission pleases, Ms Devasia from the AMWU.
THE COMMISSIONER: Thank you, Ms Devasia. Mr Gunzburg, you're in Melbourne?
MR D GUNZBURG: Commissioner, yes, Gunzburg, initial D, appearing with Mr Sebbens, Commissioner.
THE COMMISSIONER: Very well. Good morning to you as well. All right.
MR THOMAS: Commissioner, could I just interrupt for a minute. We can't see you, if that's a ‑ ‑ ‑
THE COMMISSIONER: That might not be a bad thing.
MR THOMAS: I understand that. It's a bit sort of funny.
THE COMMISSIONER: I understand.
MR THOMAS: We can hear a voice but not put a face to it.
THE COMMISSIONER: We'll see what we can do about that.
MR SEBBENS: The phantom of the opera.
MR THOMAS: I mean, if it's not possible then it's not a - there we go. Thank you, Commissioner.
THE COMMISSIONER: Right. Look, this feels a little bit like déjà vu, but I think we know why we're here. With the finalisation of the shutdown provision, one or more of the parties requested that we issue a consolidated or revised draft determination for comment, which of course is an entirely proper thing to do.
That's been done, but in order to bring this matter to a head I took the view on behalf of the Full Bench that firstly I should convene a conference so that we can in effect deal with any remaining issues alive, and secondly, I thought the best way to illustrate the draft determination was to produce an unofficial consolidated version of what clause 25 would look like.
You will have hopefully received with both an email and on the website a draft determination and a draft determination number 2, and I think the email that went with that explains why we revised the draft determination. So you should have in your hands a draft determination number 2 and a consolidated clause 25. What I'd like to do is hear from each of the parties about whether or not there are any remaining drafting and/or substantive issues associated with any of that. Who would like to lead off?
MR THOMAS: I'll lead off.
THE COMMISSIONER: Yes, Mr Thomas?
MR THOMAS: It's probably myself that initiated the proceedings today. We did so on the basis that the finalisation of the excessive leave provisions in the black coal award were pending the outcome of the shutdown provisions.
THE COMMISSIONER: Yes.
MR THOMAS: That has now occurred, and as you mentioned, Commissioner, the draft amendments to the black coal award for the excessive leave provisions have been distributed to the parties. The CFMEU has no objections to the content of the latest draft determination as it has been circulated, Commissioner, so in that sense it's short and brief.
THE COMMISSIONER: Very well. Thank you. Ms Devasia, do you want to comment on that?
MS DEVASIA: Nothing to add to the CFMEU's, Commissioner ‑ ‑ ‑
THE COMMISSIONER: All right, thank you. Mr Sebbens?
MR SEBBENS: We're equally happy with the draft determination number 2 that's been issued, Commissioner. Perhaps I'll just raise for consideration one very minor thing, and it's only become apparent on seeing the consolidated clause.
THE COMMISSIONER: Yes.
MR SEBBENS: That is that in what's now intended to be 25.13, items (g) and (h) refer to four weeks and two weeks. Elsewhere throughout the body of the clause there's been a corresponding reference to the number of hours that represents. Perhaps that similarly should represent - will be written as time, but that should perhaps similarly represent for four weeks, 140 hours, and for two weeks, 70 hours.
THE COMMISSIONER: All right. So as I understand it, the proposal would be to adopt the same approach that we have adopted in the other earlier clauses by naming the hours and then perhaps with the weeks in brackets.
MR SEBBENS: Yes.
THE COMMISSIONER: So that's in 25.13(g) and (h). So that would be 140 hours, four weeks.
MR SEBBENS: That's correct.
THE COMMISSIONER: And "70 hours (two weeks)".
MR SEBBENS: Correct. Thank you.
THE COMMISSIONER: All right. Does anyone have any concerns with that?
MR THOMAS: No, Commissioner. It's consistent with the rest of the order and the current award clause.
THE COMMISSIONER: Very well. The only drafting matter I just want to raise with the parties is that you'll notice in 25.12 - so this is the new shutdown provision, and probably the easier way to look at this is in the consolidated version. You'll see that at 25.12(a) is contained the words "despite the terms of 25.4 and 25.6" and then there is subclause (i) which confirms that "25.4 to 25.6 do not apply to a period of annual leave", et cetera.
At one level that may be a duplication, but at another level the Bench was concerned to clarify the relationship between the excessive leave provision and the shutdown clause, and so the expression "despite the terms" is something which appeared in an earlier decision of the Commission and subclause (i) just follows the normal sort of pattern of explaining the relationship. So for my part, I think arguably one of those might be otiose, but I don't know whether the parties have any concerns about that, about that duplication, or potential duplication.
MR SEBBENS: We noted that addition in (a), Commissioner, and we have no problem with it.
MR THOMAS: It's of no difficulty for us either, Commissioner.
MR GUNZBURG: Commissioner, if my memory serves me right, I think it may have been us in an earlier draft who raised the point that "despite the terms of" is one of those phrases which people use, but I've never quite understood what it means, to be quite honest.
THE COMMISSIONER: Yes.
MR GUNZBURG: I don't take a spiteful approach to any of the clauses of these awards. So I think the doubling might be because we thought it was clearer to say the clauses do not apply, so we don't need to take ‑ ‑ ‑
THE COMMISSIONER: Yes, all right. Does that lead to any concern about the "despite the terms" clause being left?
MR SEBBENS: No.
THE COMMISSIONER: All right.
MR GUNZBURG: No.
MR THOMAS: No.
THE COMMISSIONER: All right. As I understand the situation, with the minor amendment that we discussed to insert the hours as well as the weeks in 25.13, there's a common position that the draft determination should be issued. I will, of course, consult with the President and the Deputy President and have that draft determination issued as soon as possible. Obviously depending on the timing of that will dictate exactly when it comes into force.
All right. I think we're there. I appreciate the assistance of the parties and your attendance today. I think this was an efficient process. The Commission will be adjourned. Thank you.
ADJOURNED INDEFINITELY [9.12 AM]