[2009] AIRCFB 958 [2009] AIRCFB 958 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION DECISION Workplace Relations Act 1996 s.576H—Commission may vary modern awards Australian Mines and Metals Association (AM2009/13) MINING INDUSTRY AWARD 2010 [MA000011] JUSTICE GIUDICE, PRESIDENT VICE PRESIDENT LAWLER VICE PRESIDENT WATSON SENIOR DEPUTY PRESIDENT WATSON SENIOR DEPUTY PRESIDENT HARRISON SENIOR DEPUTY PRESIDENT ACTON COMMISSIONER SMITH MELBOURNE, 21 DECEMBER 2009 [1] The Australian Mines and Metals Association (AMMA) has made an application pursuant to s.576H of the Workplace Relations Act 1996 (the WR Act) to vary the Mining Industry Award 2010 1 (the modern award). The modern award was made during the priority stage of the award modernisation process being conducted by the Commission in accordance with Part 10A of the WR Act. [2] The variations sought may be summarised as follows: to insert an annualised salary clause; to amend the hours of work provisions to provide that up to 12 ordinary hours of work per day may be worked by both shift and nonshift workers; to insert a clause to expressly provide rostering arrangements for the working of “cycle work”; to insert a provision to expressly permit handover working arrangements; to provide for an employer to require an employee to take annual leave in accordance with roster arrangements; and to vary the annual leave clause to provide for payment at the greater of either the projected roster amount or the minimum weekly wage plus 17.5%. [3] With the exception of the last variation referred to above each of the others is said to give effect to the requirements of paragraphs 33AA and 33A of the award modernisation request (consolidated request). It should be noted that the modern award was published on 19 December 2008. Subsequently, on 2 May 2009, the Minister for Employment and Workplace Relations (the Minister) varied the provisions of the consolidated request to introduce paragraphs 33AA and 33A. The terms of those two paragraphs are as follows; “33AA Where a modern award covers work performed in remote locations, the Commission should include terms that permit the roster arrangements and working hours presently operating in practice in those locations to continue after the making of the modern award. 33A The NES allows a modern award to include terms requiring an employee, or allowing an employee to be required, to take paid annual leave in particular circumstances, but only if the requirement is reasonable. Where an award covers remote work, a modern award should provide that an employer may reasonably require employees who work on a roster cycle made up of working days (on-duty period) and non-working days (off-duty period) to do either or both of the following: (i) to take any period or periods of annual leave of the same duration as the on-duty period under the employee’s work cycle roster; (ii) to take annual leave on any day nominated as annual leave as part of the roster cycle.” [4] The application is supported by BHP Billiton Group (BHP). It is opposed by the Australian Workers’ Union (AWU), the Communications, Electrical, Electronic, Energy, Postal, Plumbing and Allied Services Union of Australia (CEPU), the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Construction, Forestry, Mining and Energy Union (CFMEU). [5] AMMA’s submissions demonstrated that the majority of operations that will come within the coverage of the modern award are carried out in remote locations. This was not put in issue by any of the unions. AMMA also addressed the existing roster, working hours and annual leave arrangements so as to persuade us that the variations sought were required by the provisions of the consolidated request. BHP addressed each of the same areas in respect of the operations of the various companies in its group. The BHP companies will be the largest employer of employees covered by the modern award. [6] Submissions were made by the AWU and were adopted by the CEPU and AMWU. In the AMWU submission it also addressed how we should interpret the words “presently operating in practice” in paragraph 33AA of the consolidated request. CFMEU also adopted the AWU submissions and identified a number of enterprise awards in the industry which it submitted should be excluded from any consideration in this application. [7] Contrary to the AWU submission we read the consolidated request as requiring us to revisit the provisions of the modern award and to consider the variations sought by AMMA. The fact that some of these provisions may have earlier been considered by us, prior to the variations to the consolidated request, is not of any great weight. [8] We note the AWU submission that if we were to consider the variations sought by AMMA it wished us to also reconsider a range of other provisions that are in the modern award or might be considered appropriate to go into it. In the absence of an application identifying precisely which clauses it seeks to be varied as a consequence of the variations to the consolidated request we are unable to consider these matters further. In any event, all of the provisions of the modern award can be considered in the context of the two yearly review. [9] We also note the unions’ submission that in a number of operations the practices that are now relied upon were introduced into workplaces as part of Australian Workplace Agreements or are contained in enterprise awards. Assuming that to be so, on our reading of the consolidated request we are to consider what is “presently operating in practice” and should not confine our consideration only to provisions contained in existing industry awards. Annualised salary [10] Annualised salaries are widespread in the industry and have been for many years. AMMA described them as being a universal feature of the industry. They allow for equal payments to be made regardless of the actual roster or work cycle undertaken by the employee in the relevant payment period. BHP submitted that all of its employees are paid by way of an annual salary which it described as essential in facilitating regular and certain payments for the work performed. This method of payment can be seen as being incidental to and complementing the manner in which roster arrangements and working hours presently operate within the industry. There is no evidence, nor was there any submission, that this method of remuneration, which has been in operation in this industry for many years, has operated to the disadvantage of any employee. [11] We have decided to insert an annualised salary clause in terms similar to that we have recently placed in the Salt Industry Award 2010 2 (Salt Modern Award) which in turn was based on a clause recently inserted into the Clerks—Private Sector Award 2010 . 3 The clause contains a safeguard to protect an employee being paid less that they would otherwise have been had they not been on an annualised salary. Hours [12] The working of 12 hour shifts is commonplace in this industry and has been for many years. In fact, on the evidence, there were very few operations where 12 hour shifts were not worked. The parties disagreed about the extent to which the 12 hour shifts were worked due to an agreement to do so or where they were worked because an employer could require such shifts. [13] We have decided to vary the provisions of the award in relation to both shiftworkers and non shiftworkers although not in the terms sought by AMMA. The provisions will be in similar terms of the hours clause we have recently inserted into the Salt Modern Award. In this respect the comments we made about these provisions when publishing the exposure draft of that award are equally applicable. 4 This clause also acknowledges that some sites may work 12 hour shifts with the agreement of the majority of employees and at some sites the employer is able to require 12 hour shifts to be worked. Special arrangements for cycle work [14] AMMA described cycle work as the working of a roster that is comprised of a number of consecutive working days and a number of consecutive non working days. It is also known as a compressed roster, where the ordinary hours of work that fall during the length of the roster cycle are taken into account (compressed into) determining the obligation to provide 38 hours of employment over the duration of the work cycle. [15] AMMA relies on information collated from its members that cycle work is the predominant form of engagement in the industry. These submissions were also supported by reference to the working arrangements at the BHP companies. [16] We have decided to make the variation sought by AMMA. Again, it is consistent with, and required by the provisions of the consolidated request. Handover work [17] AMMA described its proposed new clause as a mechanism to ensure continuity of operations between one 12 hour shift and the next by requiring an employee to provide a shift handover (where required) of reasonable length. It submits that this allows the incoming employee to be informed of issues concerning the work being performed including safety considerations and aids to smooth operations. It says that the practice is customary in most continuous shift operations. Little more was said in justification of the clause by AMMA or BHP. [18] In our opinion the considerations said to justify the clause would apply to all operations where continuous shifts are worked and nothing in particular in the consolidated request requires such a clause be put into the modern award. [19] We decided to not allow a similar clause in our 19 December 2008 decision. 5 We have not been persuaded to revisit that decision. It is not a variation necessitated by either paragraph 33AA or 33A of the consolidated request. In any event it has no safeguards as to the period of the handover or clarification of the payment that would be made for any such period. If necessary, the issue can be revisited in the two yearly review. Annual leave to be taken in accordance with the work cycle [20] The prevailing practice in the industry is for annual leave to be taken in multiples or proportions of the roster cycle. The proposed clause allows for these current annual leave rostering practices to continue. All BHP employees take their annual leave on the basis of proportional numbers of on duty and off duty days in their work cycle. [21] The proposed clause is consistent with paragraph 33A of the consolidated request and will be inserted into the modern award. Payment for annual leave [22] AMMA seeks this variation to rectify an error in the relevant clause in the modern award. It is a variation that we have considered on its merit as to whether it should be allowed. The variation retains the existing methodology for calculating a weeks leave (which includes penalties and loadings) and provides for an alternative by reference to the minimum weekly payment rate plus 17.5%. It is to be the greater of these which is to be paid to an employee. We noted in our 19 December 2008 decision 6 that we had decided upon an annual leave payment clause consistent with the submissions of the AWU and we identified the components that would be taken into account when calculating payments for annual leave. The new clause became cl.21.3 of the modern award. At that time however the annual leave loading clause, which had been in the exposure draft, was not revisited. It should have been. We will allow the variation sought by AMMA. BY THE COMMISSION: PRESIDENT 1 MA000011. 2 MA000107. 3 MA000002. 4 [2009] AIRCFB 865 at paras 249-251. 5 [2008] AIRCFB 1000 at para 214. 6 Ibid at para 217. Printed by authority of the Commonwealth Government Printer <Price code C, PR991810>