WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION TAKE NOTICE that the Commission acting pursuant to Section 47 of the Industrial Relations Act, 1979, intends, by order, to strike out the following party to the Furnishing Trades Award No. A6 of 1984, namely-- Pindan Constructions on the grounds that the respondent is no longer operating in the industry or employing persons in the industry to which the award applies. Any person who has a sufficient interest in the matter may, within 30 days of the date of the publication of this notice, object to the Commission making such order. Please quote File No. 76/80/209 on all correspondence. DATED THIS 11TH DAY OF JANUARY, 2006. J. SPURLING, Registrar. RECLASSIFICATION APPEALS—Notation of— File Number Appellant Respondent Commissioner Decision Finalisation Date PSA 11 of 2000 Rosemarie Dunn South East Coastal Health Service Scott C. Dismissed 06/01/06 PSA 3 of 2005 Noel Bond Minister for Health in Right of the South West Area Health Service Scott C. Dismissed 12/12/05 PSA 4 of 2005 Michael Patrick Beeson Minister for Health in Right of the South West Area Health Service Scott C. Dismissed 12/12/05 PSA 5 of 2005 Ellen Fitzgerald Minister for Health in Right of the South West Area Health Service Scott C. Dismissed 12/12/05 PSA 6 of 2005 Janean Halket Minister for Health in Right of the South West Area Health Service Scott C. Dismissed 12/12/05 PSA 7 of 2005 Robert Hartley Minister for Health in Right of the South West Area Health Service Scott C. Dismissed 12/12/05 PSA 8 of 2005 John Loffelman Minister for Health in Right of the South West Area Health Service Scott C. Dismissed 12/12/05 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 165 COAL INDUSTRY TRIBUNAL—Awards/Agreements— Application for— COAL INDUSTRY TRIBUNAL OF WESTERN AUSTRALIA (Section 12) Griffin Coal Mining Company Pty Limited and The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers, Western Australian Branch (No. 9 of 2005) MEMORANDUM OF AGREEMENT WHEREAS a conference between Griffin Coal Mining Company Pty Limited and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers, Western Australian Branch was convened by me pursuant to section 12(1) of the Coal Industry Tribunal of Western Australia Act 1992 (“the Act”) on 18 November 2005 for the purpose of finalising an agreement relating to the Griffin Coal (Maintenance) Enterprise Bargaining Agreement 2005-2008. AND WHEREAS agreement has been reached between the applicant and the respondent in the terms of the Schedule annexed hereto and signed by me in accordance with section 12(3) of the Act is a memorandum of the matter upon which agreement has been reached and the terms and conditions agreed upon. THE Griffin Coal (Maintenance) Enterprise Bargaining Agreement 2005-2008 in the terms of the following schedule be and is hereby registered as an industrial agreement. DATED at Perth 18 November, 2005. (Sgd.) S J KENNER, Chairman, [L.S.] Coal Industry Tribunal of Western Australian. 1. Title (1) The terms and conditions of this document shall be known as the “Griffin Coal (Maintenance) Enterprise Bargaining Agreement 2005- 2008”. (2) The Griffin Coal (Maintenance) Enterprise Bargaining Agreement 2005- 2008 shall replace the Griffin Coal (Maintenance) Enterprise Agreement 2001-2004 with effect 1 October 2005. 2. Arrangement 1. Title 2. Arrangement 3. Scope and Parties Bound 4. Definitions 5. Objectives 6. Term of Agreement 7. Application 8. Contract of Service 9. Additional Work Arrangements and Reductions in Demarcations 10. Hours of Work and Rosters 11. Salaries and Other Benefits 12. Superannuation 13. Public Holidays 14. Annual Leave and Shut Down/s 15. Sick Leave 16. Long Service Leave 17. Bereavement Leave 18. Other Leave 19. Management of Leave/Absenteeism 20. Redundancies 21. Contractors 22. Fixed Term Employees 23. Union Meetings and Training 24. Grievance Procedure 25. Fair Treatment Procedure 26. Variation to Agreement 27. Right of Entry Schedule A – Attachment 1 Salaries 166 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. 3. Scope and Parties Bound (1) The Griffin Coal (Maintenance) Enterprise Bargaining Agreement 2005-2008 shall apply to the operations of Griffin Coal Mining Company Pty Ltd in the Collie Coal Basin and its employees who are eligible to be members of the union party to it. (2) The parties to the Griffin Coal (Maintenance) Enterprise Bargaining Agreement 2005-2008 are Griffin Coal Mining Company Pty Ltd and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers –Western Australian Branch. 4. Definitions (1) The following definitions shall apply: ‘Act’ means the Coal Industry Tribunal Act 1992 (WA) as amended from time to time. ‘Agreement’ means the Griffin Coal (Maintenance) Enterprise Agreement 2005-2008. ‘Apprentices’ means the Griffin Coal (Apprentices) current Agreement’ Enterprise Agreement. ‘Award’ means the Coal Mining Industry (Engineers) Award 1990 as amended. 'Complying Fund' means any superannuation fund or scheme: (a) that is a complying fund or scheme for the purposes of Part IX of the Income Tax Assessment Act 1936; and (b) to which, under the governing rules of the fund or scheme, contributions may be made by or in respect of the employee permitted to nominate a fund or scheme. ‘employee’ means any person engaged by the employer under a contract of service to carry out maintenance work. ‘employer’ means Griffin Coal Mining Company Pty Ltd. ‘GCM’ means Griffin Coal Mining Company Pty Ltd. ‘industry' as defined in Coalfields Engineering 1990 Award. ‘maintenance is the designated term for employees whose duties work’ may include but are not limited to maintenance of equipment plant, component installation, corrective and preventative maintenance, repairs on heavy equipment bore fields and coal producing plant. ‘panel’ means the maintenance employees working on the same shift roster. ‘shift transfer’ means an approved agreement between an employee on one panel and an employee on another panel to exchange a shift with a balance of skills remaining on both panels affected. ‘shift swap’ means an approved arrangement whereby an employee works a non-rostered shift in lieu of a rostered shift. ‘staff’ means employees who are not bound by either this Agreement or any registered agreement binding on maintenance employees. ‘fixed term’ means an employee engaged pursuant to Clause employee’21 – Fixed Term Employees of this agreement. ‘tribunal’ means the Coal Industry Tribunal of Western Australia. ‘union’ means the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers - Western Australian Branch. ‘week’ means seven (7) consecutive calendar days. ‘week’s pay’ means the weekly salary rate applying in accordance with Schedule A – Salaries. 5. Objectives (1) The principal objective of this Agreement is to secure the future of GCM and employees covered by it through the establishment of efficient and effective operating practices which, in turn, will minimise GCM’s cost of operations and lead to an expansion of operations. (2) To achieve this objective: (a) The parties jointly commit to a process of continuous improvement to make the mine operations as safe, cost efficient and productive as possible and to maximise the use of GCM’s resources for the purpose of maintaining or increasing demand for GCM coal; (b) Management and employees will co-operate to achieve the objective and recognise that price and quality are the main factors which may contribute to making GCM coal more competitive with other energy sources. (3) A subordinate objective is that GCM will maintain and expand its role in the community of Collie and it is envisaged that this will include the continuation of training of young people in Collie to prepare them for future employment in mines. 6. Term of Agreement (1) This Agreement shall come into effect 01 October 2005 and remain in effect until 30 September 2008. (2) The terms and conditions of employment contained in this Agreement shall be deemed to have had effect from 01 October 2005. 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 167 (3) The parties shall commence negotiations no later than six (6) months prior to the expiry of this Agreement for the purpose of replacing it at the end of its term. (4) In the event that the Agreement is not replaced in accordance with (3) above it shall remain in force until it is either replaced or a party provides thirty days written notice to withdraw from it. 7. Application (1) This agreement shall be read and interpreted in conjunction with the Award as amended and where there is an inconsistency the Agreement shall prevail. (2) Where the current agreement is silent, the parties undertake to review the 1996 – 2001 Enterprise Agreements and 1990 Award. If a conflict arises with subclause 7(1) or 7(2), the most recent agreement shall prevail in an attempt to resolve the matter. In the event agreement cannot be reached, the parties agree to refer the matter to the CIT for resolution. (3) This Agreement shall not apply to apprentices. 8. Contract of Service (1) Subject to (3) hereof, the employer may direct an employee to carry out all reasonable tasks within the employee’s skills, training, experience and knowledge and such other reasonable tasks incidental to the employee’s performance of these. (2) And included in (1) hereof for the purposes of this Agreement, an employee may be directed to work in their primary work area or outside that area to perform tasks which are incidental to work in their classification, and as identified in Clause 9 – Additional Work Arrangements and Reduction in Demarcations. (3) An employee shall not be obliged to work in a way contrary to safety standards or contrary to any statutory requirements or obligations applying to the work site. (4) Any direction to an employee in accordance with (1) hereof shall be a matter for the employer’s discretion. (5) Temporary redeployment (a) The employer, after consultation with affected employees and their representatives, may assign employees temporarily to work on other of its mine sites to meet operational needs. (b) Temporary assignments not covered by (a) hereof may occur by agreement between the parties. (c) The terms and conditions of this Agreement will apply for the duration of any temporary assignment provided that when an employee on temporary assignment carries out duties that are predominantly incorporated into a work team, the employee will be entitled to either the terms and conditions of this Agreement or the local terms and conditions, whichever is the higher. (d) Terms and conditions such as travel, living away from home allowance and other conditions will be negotiated by the parties prior to any assignment outside the Collie Basin area. (e) It is not intended that temporary assignments will have the effect of changing the work arrangements of an employee on a permanent basis. (f) The employer shall not assign any employee bound by this Agreement to any workplace where protected action, as defined by the Workplace Relations Act 1996 as amended, is being undertaken. (g) An employee may be appointed temporarily to a supervisory or regulatory position provided that: (i) the appointment is subject to prior agreement between the parties; (ii) the employer is satisfied the employee has the necessary skills; (iii) the employee agrees not to be involved in any industrial action by the union during the period of the appointment and the union agrees to the exemption of the employee from the action; (iv) the pay levels and conditions to apply are equivalent to those usually applied to the position being filled; (v) any increase shall be compensation for variations to the employee’s usual travel arrangements to and from work; and (vi) additional time worked shall be credited to the employee’s annual leave entitlement. (6) Stand Downs (a) Should there be a major interruption to business such as industrial action, major component failure or as a result of external influences; the employer may, after discussions with the union stand down employees who can no longer be gainfully employed. (b) Before any employee is stood down every effort should be made to minimise the impact of this by whatever reasonable means are available. (c) An employee stood down in accordance with this subclause shall not be entitled to payment for the period of stand down. (7) Training (a) The employer will work with the employees in a consultative fashion to develop a training programme that will maintain or improve relevant skill levels essential to ensure GCM’s aim of competitive advantage. (b) Pending the establishment of the programme per (a) the employer will provide a minimum 20 hours of training per person per year, including occupational health and safety training. 168 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. (c) Classroom time not to exceed 8 hours and will be deemed to be a complete shift. (d) If an employee, in their own time undertakes training that the employer endorses as beneficial to its operations, the employer will reimburse the cost to the employee of this training subject to it being successfully completed. (e) Reimbursement for the purposes of (c) includes a crediting of time taken for training to be credited to the employee’s annual leave entitlement. (8) Notice of Termination of Employment by Employer (a) Subject to (b) hereof, the following notice periods for termination of an employee’s contract of service shall be given by the employer unless the termination is for misconduct. Period of Continuous Service Period of Notice up to 1 month 1 day more than 1 month up to 1 year 1 week from 1 year up to 3 years 2 weeks from 3 years up to 5 years 3 weeks from 5 years 4 weeks (b) An employee, who at the time of being given notice of termination of their contract of service is over 45 years of age and has completed two (2) years’ continuous service for the employer, shall be entitled to one (1) week’s notice in addition to any notice prescribed in (a) hereof. (c) The employer may dismiss an employee at any time without notice for misconduct; in which case, the employee shall be due salary payment up to the time of dismissal only and for any entitlements due but not taken by the date of dismissal. (9) Notice of Termination of Employment by Employee An employee shall give an equivalent period of notice of termination of their contract of service to the employer as per the table in (8) (a) but the notice in (8) (b) shall not apply. (10) The employee and the employer may agree on a shorter period of notice to apply. (11) Payment in Lieu of Notice If the required notice is not given, the employer or employee, as the case may be, shall pay/forfeit a sum equivalent to the salary which would have been due had that notice been given and worked out. 9. Additional Work Arrangements and Reduction in Demarcations (1) General Maintenance Work (a) The employer is committed to maintaining a core of essential skills in the maintenance of heavy vehicles and in processing plant fitting (including light fabrication and some machining) as well as welding, electrical and pump fitting work. (b) The core of skills of employees covered by this Agreement is to be enlarged to include a “whole of job” approach so that an appropriately skilled employee may: • operate forklifts in and around the workshop, in the pit and to obtain parts from the stores compound for specific work but not for general deliveries; • carry out dogging (slinging) of loads in all areas of operation provided that in the case of a hire crane, a production employee shall be involved; • use the wash-down vehicles at any time for cleaning equipment and, as well, move the wash down vehicles for filling with water and detergent but only when the position of crane driver/general duties employee is filled; • to deliver machinery requiring maintenance from the pit to the workshop and return for the nearest “ready” line for production. (c) When an employee covered by this Agreement needs to move parts in the course of carrying out a maintenance function, they shall use an appropriate vehicle with a maximum capacity of five (5) tonnes. (d) The towing of tools such as a mobile welder is included for the purposes of (c) of this subclause; (e) The hiab crane shall not be used to lift loads greater than 3.5 tonnes. (2) Testing Within Maintenance (a) From the time mine equipment becomes partially or totally unserviceable to the time it is returned to full service, qualified maintenance employees may test as appropriate, carry out any washing, deliver to the workshop and deliver from the workshop to the nearest ready line in each pit wash down and otherwise conduct all related or peripheral activities for the return to full operation of that equipment. (b) There are four ready lines namely the Muja Maintenance workshop, Muja fuel island go bay, Ewington Maintenance workshop and Ewington fuel island go bay. (c) Testing in production or the operation of the low loader whilst loaded, is not included for the purposes of (a) hereof. (d) Overall safety of the operation shall be maintained throughout (e.g. splitting machines or pins). (3) Work Carried Out by Production/Maintenance Employees. (a) Where appropriate, a trained competent employee (exclusive of staff) from the Production or Maintenance Departments may undertake the following: 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 169 • change out of ground engaging tools on equipment; • change out of screening media on the Coal Processing Plant (‘CPP’); • change out of conveyor skirts in the C.P.P; • disconnect and connect suction and delivery lines to dewatering pumps; • disconnect and connect pumps in dewatering systems; • minor repairs on equipment eg change globes and lenses, adjust mirrors, tighten loose nuts, bolts etc; and • start/stop lighting towers. (b) The work identified in (a) may be considered menial or incidental work requiring the use of tools compared with more complex or technical work expected of a tradesperson. (c) If a job identified in (a) requires welding, cutting, specialist tools or a degree of trades training, a fitter will be required to carry out the task and the production employee will either assist or be assigned to other duties during the period the work is carried out. (4) Component Exchange (a) The employer is required to maintain equipment in the most efficient, practicable manner possible having regard for operational and safety standards. (b) The employer may elect to implement an exchange component programme during planned maintenance to achieve the most efficient component life of an item of equipment at the least cost (including the cost of lost production due to machine down time). (c) The employer will discuss any component exchange programme with the union prior to any implementation. (d) In making the decision on component change, regard will be had for the following: • component turn around; • component exchange costs; • machine requirements of production; and • required machine turn around. (e) Assessment of the factors in (d) is to be made after discussions with the trade’s personnel on the job. (5) Certified Rebuilds (a) In order to achieve best possible cost competitiveness, the employer will continue to rigorously evaluate the capital purchase of new or replacement equipment. (b) A comparative analysis of the economies of certified rebuild equipment and new or used replacement equipment will be undertaken on occasions. (c) Any analysis in accordance with (b) shall include information from a certified repairer of the original piece of plant and, further, will include but not be limited to consideration of: • warranty; • rebuild costs; • upgrades to be included; and • rebuild time frames. (d) If an analysis in accordance with (b) and (c) establishes that a certified rebuild presents more net worth to the employer than a new or replacement machine, the employer may elect to proceed on this course after discussions with the union. (6) Warranty The Union agrees to the company implementing warranty plans and extended warranty plans up to (2) two years from date purchase or 6000 operating hours which ever comes first. 10. Hours of Work and Rosters (1) The average weekly hours of work for each employee shall be 42 worked in accordance with a four (4) panel roster (12 hour shifts) and day shift roster (10.5 hour shifts). (2) Employees will work a roster sequence of two days on, two nights on and four days off. (3) Shift start and finish times for a shift will be agreed provided that the following guidelines shall be considered: Day shift (12 hour) 7.00 am to 7.00 pm Night shift (12 hour) 7.00 pm to 7.00 am 10.5 hour day shift 7.00 am to 5.30 pm (4) A total of 60 minutes paid crib and smoko breaks may be taken within a shift in accordance with the following: (a) The crib break will be 30 minutes and there will be two 15 minute smoko breaks. (b) The parties agree to the implementation of a trial for a period of (3) three months, where 10.5 hr dayshift crew will take 15 minute afternoon smoko shift break at 5.15pm or deem the shift complete. At the completion of the trial period the parties will review the effectiveness of the trial and agree on if it will remain permanent for the life of the agreement. 170 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. (c) Employees may be required to work through a nominated crib time provided one hours notice is given or job continuity is a factor. (d) The time of taking a crib break may be altered to suit a task provided that it is commenced between five (5) hours and seven (7) hours from the commencement of the shift. (e) When it is likely that employees working in open cuts need to continue to complete a job when a crib break or smoko is due, the break shall be taken in in-pit crib huts. (f) In-pit crib huts shall have full facilities and be sound insulated, dust proofed and air-conditioned. (g) In-pit crib huts will be located close to the main haul routes of both the Muja and Ewington sites. (5) Required Temporary Roster Changes (a) Transfer from four (4) panel (12 hour) roster to day shift panel (10.5 hour) roster. (i) When the transfer is for a period of five (5) or less consecutive blocks, the employee shall continue on their four (4) panel rate for that period. (ii) If the temporary roster change is for six (6) or more blocks, the rate applicable to the new roster will be paid from the start of the change provided that, if for any reason the roster change does not exceed five (5) blocks, payment of the four (4) panel rate will be applied retrospectively. (b) Transfer from a day shift (10.5 hour) roster to four (4) panel (12 hour) roster shall be paid at the 12hr roster rate. (c) Transfers for project work on to any combination of 12 hour shifts shall be paid at the four (4) panel roster rate. (6) Shift Swaps/Shift Transfers by Employees (a) Any shift swap/shift transfer by an employee shall be subject to prior approval by the employee/s supervisor/s having regard for: (i) the efficient operation of the panels; and (ii) the balance of skills required to meet workloads. (b) The employer may request an employee to swap shifts to facilitate the undertaking of training or to meet increased workloads or any other sufficient reason. (7) Timesheets and Reporting (a) Each employee shall accurately complete a time sheet for each day of work and any off-site training and shall submit this to their supervisor. (b) Failure to submit a timesheet may result in payment of wages being stopped until the timesheet is submitted. (c) Subject to receiving training for the purpose, each employee shall enter the correct coding into the Fleet Management System. (d) Employees will be required to complete job card closing information on work orders detailing but not limited to work performed, duration, and adjustment settings, parts/lubrication and other information as directed. (e) The collection of data in accordance with (c) and (d) shall not be used as a time and motion study against any employee’s performance. 11. Salaries and Other Benefits (1) Subject to this Agreement each employee will be entitled to an annualised salary in accordance with Schedule A - Salaries. (2) Payments will be by fortnightly instalments and by direct funds transfer on the Thursday following a pay period into an account nominated by the employee. (3) Payments for emergency call outs (a) An employee called to work because of an emergency (eg life threatening incident) where personnel or skills in addition to those available on shift are required shall be paid at twice the employee’s hourly rate for the time worked; provided that a minimum payment of four (4) hours shall apply. (b) In the event of an emergency call out on Christmas Day, Good Friday or on an Anzac Day dayshift, an employee called out will be entitled, in addition to any benefit arising under (a) hereof, to have the following credited to their annual leave: • six (6) hours for up to six (6) hours work; • 12 hours for over six (6) hours and up to 12 hours work by a 12 hour shift employee; • 10.5 hours for over six (6) hours work up to 10.5 hours work by a 10.5 day shift employee. (4) Fares Allowance and Additional Payment (a) (i) A daily fares allowance of $20.80 will be paid to each employee for each attendance at work at the Muja mine. (ii) The daily fares allowance for an employee required to attend and work at the Ewington mine shall be 66% of that applying for the Muja mine. 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 171 (b) Adjustment of Allowance (i) The fares allowance shall be adjusted annually to reflect the average increase in the Private Vehicle Running Costs Index as calculated by the Royal Automobile Club of Western Australia (‘RAC’). (ii) Formula: The formula for the adjustment will be as follows: RAC average rate x distance x carpool number ÷ frequency = daily rate Agreed inputs: RAC Average = Large family car > 3 ltr + large 4WD ÷ 2 Distance = 52kms Muja – Ewington 66% of Muja rate Car Pool = 2 - agreed site average Frequency = 4 - agreed site average (iii) Date of adjustment: Any increase will apply in July/August each year in the first pay period commencing on or after the annual publication of the RAC Private Vehicle Running Costs Guide. (iv) In the event of a negative outcome, the fares allowance will not be amended. (c) In addition to any entitlements to the fares allowance employees shall receive the following payments: $350.00 on 1 July 2005 $375.00 on 1 July 2006 $400.00 on 1 July 2007 $425.00 on 1 July 2008 (5) Work Clothes etc (a) The Company will provide the Employees with one (1) issue of industrial clothing each year. An issue of industrial clothing consists of: • 1 pair of protective footwear; • 3 long or short sleeve shirts; • 3 pairs of long trousers; or overalls or shorts • 1 jumper; • 1 winter jacket every 2 years. Additional clothing may be made available, at the discretion of the employer, on a more frequent interval when required due to fair wear and tear and/or damage. Current issue clothing must be worn at all times whilst on duty and must be maintained in a reasonable standard of presentation and repair. (b) Protective clothing and equipment which GCM will make available for Employees. GCM will make available to employees wet weather gear, safety glasses and other personal protective equipment on an as needs basis at no cost to employees. Appropriate safety equipment must be worn at all times as defined by GCM. (c) Shoulder Tool Carry Bag Employees required to carry tools up and down ladders shall be issued with an appropriate shoulder tool carry bag. (6) Worksite - Based Benefits (a) Tea, coffee and milk will be supplied by the employer for employees’ use; this to be co-ordinated within each Department. (b) The employer shall provide a telephone free of charge for local calls by employees. (c) Vending Machine The employer will permit two (2) or more coin operated chocolate bar vending machines on-site provided that the parties agree on the number; the employer shall not be responsible in any way for the administration, co-ordination, maintenance, stock replenishment or any other aspect; the supplier is reputable; and production is not affected. (7) Workers’ Compensation Workers’ compensation payments are to be paid on the basis of the annualised salary rates. (8) Employee Insurance (a) 24 hour illness or accident cover is provided through the Salary Continuance Plan described in Clause 15 Sick Leave. (b) Travel insurance covering travel to and from work shall be taken out by the employer for each employee. (c) Travel insurance covering travel to and from work shall be taken out by the employer for each employee and shall include the following: • Coverage of salary (not medical costs); 172 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. • Maximum payment of $3,000.00 per week; • Capital benefit payment of $200,000.00; • Maximum of two (2) years benefit. (9) Death Benefit Employees will be provided with Death Benefit cover to the value of $30,000 separate from the benefit provided under Clause 11(8)(b). 12. Superannuation Contributions pursuant to Federal superannuation regime (1) The employer will pay an amount equivalent to 9% of each employee's Annualised Salary into a superannuation fund set out in subclause (4) of this clause. (2) The employer's superannuation contribution in accordance with subclause (1) of this clause shall not fall below the amount required in order to avoid incurring a liability to pay the superannuation guarantee charge under the Superannuation Guarantee (Administration) Act 1992 (Commonwealth). (3) Subject to statutory limits in the Income Tax Assessment Act 1936 (Commonwealth), and provided the election is made before the entitlement accrues, an employee may elect to sacrifice: (a) a portion of their Annualised Salary; and/or (b) the annual payment in respect of sick leave provided for in subclause 15(6) of this Agreement, and for the sacrificed amount to be contributed by the employer to a superannuation fund set out in subclause (4) of this clause. (4) The superannuation funds for subclause (1) of this clause are: • Coal Industry Superannuation Fund; • AMP Custom Super Fund; • Westscheme provided in each case the fund is a Complying Fund. Contributions to Coal Industry Superannuation Fund pursuant to State Coal Industry Superannuation Regime (5) In addition to the contributions required under subclause (1) above, the employer shall contribute to the Coal Industry Superannuation Fund an amount or rate that is required for the employer to comply with the Coal Industry Superannuation Regulations 1990 (WA). (6) Without in any way adding to the obligation under subclause (5) above, the parties acknowledge that, as at the date of this agreement: (a) the amount to be paid by the employer under subclause (5) must not be less than 7% or more than 10% of the benchmark amount (as defined in the Coal Industry Superannuation Regulations 1990 (WA)) multiplied by the number of employees employed by the employer that are covered by this agreement; and (b) as the Coal Industry Superannuation Fund has a defined benefit structure, this amount is not credited to the employees' accounts but is part of the pool of assets from which the fund meets its benefit obligations and costs of member insurances, statutory fees and administration expenses. 13. Public Holidays (1) The following is to apply with respect to gazetted public holidays. (a) The annual shutdown shall include Christmas Day, which will be recognised as a non-rostered day without loss of pay by “slipping” the roster. (b) Good Friday will be recognised as a non-rostered day without loss of pay by “slipping” the roster by 24 hours. (c) (i) Any employee who is rostered on and works on Australia Day, Labour Day, Easter Monday, the Sovereign’s Birthday or Foundation Day shall be paid an additional sum; to be the rate paid for a shift worked on that Public Holiday. (ii) In lieu of the payment in (i) hereof the employee may elect to be paid single time and accrue a day to be added to their annual leave entitlement. (d) Boxing Day and New Years Day will be deemed to be in the list of public holidays in (c) hereof if they are not included in the annual shut down (reduced crew only). (e) Anzac Day will be observed as follows: (i) Employees rostered for the day shift only on Anzac Day shall be entitled to be absent from work without loss of pay. (ii) Employees rostered to work on a night shift which ends or begins on Anzac Day shall be entitled to the payment in accordance with (c) of this Clause. (iii) The roster of employees not covered by (i) will not be affected by the releasing of day shift employees on Anzac Day. (f) The time for the purposes of any payment under this Clause will be from midnight to midnight on the date of the gazetted public holiday. (2) In the event of an emergency call out of an employee on a public holiday the employee shall be paid in accordance with subclause (3) of Clause 11 – Salaries and Other Benefits in addition to any payment arising under this Clause. 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 173 14. Annual Leave and Shut Down/s (1) An employee shall be entitled to 252 hours annual leave for each 12 months of continuous service. (2) Subject to this Clause, the taking of annual leave shall be managed within a crew. (3) An employee will be able to take a portion of their annual leave entitlement as single days in accordance with leave policy and planning for crews approved by the employer. (4) The decision as to whether a shut down over the Christmas period in any year will be made on a year by year basis provided that notification of any decision will be made by the employer prior to 30th of June in the relevant year (5) As a general rule the timing of the annual shut down will include the week to and including Christmas Day and the week from Christmas Day. (6) Period 26-31 December (a) Employees usually will take the period 26-31 December as annual leave provided that an agreed number of employees will be required to attend for work to support production work. (b) The agreed minimum number of employees required will be set by management and employee representatives when production requirements for the period are known. (c) Subject to this subclause, those requested to work will be paid the four (4) panel rate for the time worked. (d) No maximum number of employees to work in this period will be set but if the number who wishes to work significantly exceeds the estimated requirements, not all will be paid the four (4) panel rate. (e) Christmas Day will be recognised as a non rostered day without loss of pay by ‘slipping’ the roster. (7) The employer shall endeavour to notify any employee who has applied to take annual leave in the December- January period whether or not that application has been approved by no later than the prior 1 August. (8) When an employee is rostered on and subsequently is on approved annual leave or long service leave, the public holiday will be added to the employees leave bank. 15. Sick Leave (1) Any employee taking sick leave shall endeavour to notify the employer of that prior to the commencement of that shift. (2) (a) Subject to this subclause any employee taking sick leave shall be required to justify that absence in accordance with the standards prescribed in the Award Clause 12 (6). (b) Any employee absent for more than two consecutive days is required to produce a medical certificate to the employer for an entitlement to paid sick leave to arise. (c) An employee otherwise applying for sick leave shall produce a medical certificate to the employer provided that this requirement shall not apply for five (5) single days in a 12 month period. (3) An employee taking sick leave will be paid according to a salary continuance insurance plan (‘the plan’) which covers an employee for illness or accident up to 30 calendar days at the normal salary rate and thereafter up to two (2) years at 75% of the normal salary rate. (4) The plan does not require an employee to undertake a pre-entry medical examination and clearance. (5) No accrual of sick leave applies under the plan. (6) Up to five (5) shifts may be paid out to an employee in January of each year provided that the payment will be reduced by any absence on sick leave in the previous calendar year in accordance with the following. Absence on sick leave Incentive payment 0 shifts Equivalent to 5 shifts 1 shift Equivalent to 4 shifts 2 shifts Equivalent to 3 shifts 3 shifts Equivalent to 2 shifts 4 shifts Equivalent to 1 shift 5 shifts No payment (7) If an employee is sick for five (5) or more consecutive days and produces a medical certificate certifying that, any absence from work covered by the medical certificate shall not count for the purposes of (6) hereof. (8) Where an employee can prove they have been confined to hospital or home while on annual leave or LSL, these days may be taken from sick leave allotment. (9) Carer's Leave (a) Employees are entitled to use carer's leave in accordance with the Minimum Conditions of Employment Act 1993 (WA).to provide care and support for members of the Employees immediate family who are sick and require care and support from the Employee. (b) Employees are to advise the company where possible at least two (2) hours before the start of a rostered shift of the Employees inability to attend work. (c) Employees must provide evidence to the satisfaction of the Manager or nominee, that the Employee is required to provide care for a family member who is sick or who requires the Employees care. 16. Long Service Leave (1) An employee who works a 4 panel or a 10.5 hour day shift roster respectively shall be entitled to long service leave of 45.5 shifts or 52 shifts (546 hours) after eight (8) years of continuous service. 174 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. (2) Long service leave will be managed within the crew. (3) The minimum period for the taking of any long service shall be at least six shifts. 17. Bereavement Leave (1) In the event of the death of an employee’s spouse, child, parent, brother or sister (including in laws), de facto spouse, stepchild, parent-in-law, grandparents or foster parent and upon production of satisfactory proof of such death, the employee shall be entitled to two days of leave at the ordinary rate of pay provided that such leave shall be extended to cover the balance of the shift without loss of pay if the employee receives notification of the death when at work. (2) These days may not be consecutive. (3) Where interstate or international travel is involved a longer period may be considered reasonable. 18. Other leave (1) Jury Service as per Clause 16 of the Award. (2) Employees are entitled to unpaid Parental Leave in accordance with the Minimum Conditions of Employment Act 1993 (WA). (3) An absence in excess of two (2) hours to attend a funeral may be taken as annual leave subject to approval by the employer. (4) Pressing Domestic – subject to the approval of the Departmental Manager, an employee may be absent from work with pay, because of an emergency. 19. Management of Leave/Absenteeism (1) Each panel will manage the taking of annual leave and long service leave by the employees on it having regard for (2) hereof. (2) The essential skills in each crew required to enable maintenance activities to be achieved efficiently and effectively are to be maintained throughout. (3) Any annual leave or long service to be taken will be subject to approval by the employer. 20. Redundancies (1) (a) For the life of this agreement Griffin Coal shall maintain a minimum manning level of 86 maintenance employees, in the event of a downward movement in contracted tonnages below 2.650 million tonnes per annum and the Employer is of the opinion it cannot maintain the existing manning levels of a minimum 86, a voluntary redundancy program shall be implemented hereof in clause 3. In the event that coal sales return above 2.650 million tonnes the company will increase the manning levels to the agreed level above for the life of the agreement. (b) If the employer implements a programme of voluntary redundancies the parties are to agree on a reasonable time frame for the program for redundancies to take place. (2) Should a dispute arise between the parties, the matter will be referred to the Tribunal for determination. (3) In addition to any contractual benefits due on termination of employment and any superannuation benefits, the following shall apply in the event of a redundancy. (a) A minimum amount equivalent to 13 weeks’ pay (maximum uncapped); (b) plus four (4) weeks’ pay; (c) plus an amount equivalent to one (1) week’s pay for each year of service; (d) plus an amount equivalent to one (1) week’s gratuity for each year of service; (e) plus an amount equivalent to one (1) week’s pay for each year of service above 20 years; (f) plus an amount equivalent to three (3) weeks’ pay per year for any employee over 50 years of age; (g) Plus the sum of $20,000.00 in the case of an employee’s application for redundancy being accepted by the employer. (4) This Clause shall not apply to employees engaged on short term contracts. 21. Use of Contractors (1) The parties recognise the need for the utilisation of contractors from time to time to meet the operational needs of the industry. (2) GCM will ensure that employees of the contractor undergo the Company’s induction processes and comply with all relevant safety procedures and laws. (3) (a) Subject to this subclause, contractors may also be used for work of a short duration during periods of high workload or urgent work requirements affecting production output. (b) The engagement of contractors for short periods shall occur only after the employer has exhausted all other options such as employees working extra hours or the employment of short term employees. (c) In entering into any arrangement for a contractor to carry out work covered by this subclause the employer will require the contractor to apply at least the wages of the current EBA. (4) Subject to this Clause, the employer will give the union notice in writing of an intention to engage a contractor onsite and the reasons for it and the union will respond in writing. (5) In engaging any contractor to carry out work in an active mine the employer will, subject to this Clause: (a) Have reached prior agreement with the union to engage the contractor. (b) Require any employees of the contractor to undergo the employer’s induction processes and comply with all relevant Mine Special Rules and Safety Procedure (No. 5737); 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 175 (c) Require the contractor to limit the hours of any individual carrying out the contract work to no more than 60 hours in a week worked over no more than six (6) days in a week and with shifts to be no more than 12 hours. (6) (a) The employer and the union will confer on any extension of time of engagement of a contractor and variation of any limits in this Agreement or the Award so that the job may be completed expeditiously. (b) Any agreement will be recorded in an exchange of letters between the parties and will be deemed to be part of the Agreement from the date of that exchange. (7) If no agreement is reached as a result of (6) hereof the question of an extension will be referred to the General Manager - Operations and the District Official of the union. (8) If no agreement is reached between the parties on the engagement of a Contractor, the employer may proceed on with the Contractor unless the Union makes application to the Tribunal within (3) three working days of being notified of this intention. (9) Notwithstanding any engagement of contractors, the employer will continue to provide training opportunities for its employees to enhance their skills for the purpose of efficiently and effectively carrying out work allocated to them. 22. Fixed Term Employees (1) Subject to this Agreement, the employer may engage persons on fixed term contracts of at least 84 hours of work in periods of up to 18 months the purpose of relieving when employees are on leave or to meet specific work demands. (2) The employer shall give prior notice to the union of any intention to engage a fixed term employee. (3) GCM can employ up to seven percent (7%) of the total permanent trades employees (in this case it would be 86). The parties agree to the employment of additional fixed term employees above 7% conditional hereof: (a) The company will employ fixed term employees in blocks of five (5). (b) Of the five (5) positions, one (1) will be made permanent. (c) The permanent position will be filled from the current fixed term employees, conditional on the right skill mix being available, otherwise the position will be filled via external applicants. (4) Any employee on a short fixed term contract shall not be, and shall not be deemed to be, a permanent employee, except after 18 month continuous service. (5) No person of the same classification employed on a short fixed term contract who works more than 12 months for the employer shall be rehired within two (2) months of their contract expiring unless otherwise agreed by the union. (6) Where possible the employer will give preference to qualified applicants who reside in the Collie region and/or have previous experience in the coal mining industry when engaging people on fixed term contract. (7) The ability to engage persons on fixed term contracts shall not be used by the employer to limit work opportunities or career opportunities for permanent employees. (8) (a) A short fixed term employee shall be entitled to One week’s severance pay for each 3 months of continuous service. (b) No severance payment shall be due in the case of a short fixed term contract of less than three (3) months. (9) If an employee on a fixed term contract applies for any accrued annual leave for personal reasons, the employee’s Department Manager will consider the application on its merits. (10) If a fixed term contract exceeds 12 months, then the procedure for application, approval and taking of annual leave by permanent employees shall apply to a fixed term employee after 12 months continuous service. (11) A fixed term employee shall be entitled to benefits in accordance with Clause 11 – Salaries and Other Benefits and as otherwise provided by this Agreement. 23. Union Meetings and Training (1) (a) Regular Meetings: (i) Provision will be made for shift employees rostered off to attend a one (1) hour paid union meeting every four (4) weeks. (ii) Payment will be on the average designated rate per hour (i.e. the fortnightly average base divided by 84). (iii) As the shift patterns for the two (2) panel 10.5 hour day shift roster does not allow for the attendance at the meeting, affected employees will be entitled to attend every second meeting when they are rostered on with pay to be deducted for the period of any such absence. (iv) The total payment for the meeting will be based on the number of personnel rostered off when the meeting is held plus the number of employees on the two (2) panel 10.5 hour roster who are rostered on at the time of the meeting and are entitled to attend. (b) Irregular Meetings: (i) If the union notifies the employer that employees rostered on at the time of a regular meeting need to attend it together with those employees rostered off, this will occur provided that the meeting will be held at 5.15 pm in Collie if possible. 176 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. (ii) Any employee who leaves early or is late reporting for their rostered shift will have pay deducted for the period of that absence. (iii) The total value of the payment for the meeting will be based on the number of personnel rostered on and off when the meeting is held. (c) Attendance to Union Meetings The union will provide the employer with the names of all employees who attended for the duration of any meeting and each attendee will be paid an equal proportion of the total value of payment less due taxation. (2) Aggregate Meeting The employer will pay for one aggregate meeting per annum of two (2) hours duration for those employees who are rostered to attend work on that day. (3) Delegates/Stewards (a) Attendance by delegates/stewards rostered off from work at the time of union meetings called at the request of the employer shall be dealt with as follows: • the employee’s annual leave entitlement will be credited with six (6) hours for any such meeting with a duration of six (6) hours or less; • if a meeting takes more than six (6) hours, the employee may elect to have either 12 hours or 10.5 hours (which ever shift length currently applies to them) credited to their annual leave entitlement or, if the next rostered shift is a night shift on the same day as the meeting, to take the shift off. (b) The credited time shall be used to cover time off from the shift prior to or following the meeting should time off be required. (4) Union Training (a) Union representatives collectively shall be entitled to a total of 24 paid days in any fiscal year to attend official AMWU training courses approved by management. (b) Time for training may accumulate for up to three (3) years. (c) Unused training days may be transferred between union representatives subject to management approval. (d) Internet access will be made available to union delegates on request. (5) Elected officials and/or delegates who are rostered on when the union’s monthly meeting of its Board of Management is scheduled, shall be released from work with no loss of payment. (6) The employer will meet with union delegates after the conclusion of regular meetings of members subject to the union making such a request shortly after such meeting. (7) If an official of the union is required to attend the Tribunal, or other court systems the employer will release them from duties without loss of entitlement. 24. Grievance Procedure (1) Individual Disputes (a) If an individual raises a grievance the procedure in (c) will apply during which time work will continue in accordance with the reasonable direction of the employer having regard for safe working practices. (b) During the dispute resolution procedure the employee may elect to involve an employee representative to assist in resolution of the dispute by participating in discussions and providing advice. (c) The procedure for resolution of disputes is as follows; Step 1 Details of the dispute or grievance will be presented to the employees’ immediate Supervisor. The Supervisor will provide a response to the issue as soon as possible. If a response is not given by the end of the Supervisor’s next rostered shift, then they will give a progress report which will include an undertaking as to the time by which a response might be given. Step 2 If resolution has not been achieved, or the Supervisor’s immediate response is unacceptable; the matter may be referred in writing by the employee/s to the relevant Superintendent or Supervisor. The Superintendent or Supervisor will provide a response to the issue as soon as possible. If a response is not given by the end of the Superintendent’s or Supervisor’s next rostered shift, they will give a progress report which will include an undertaking as to the time by which a response might be given. Step 3 If resolution has not been achieved, or if the Superintendent or Supervisor’s immediate response is unacceptable, the matter may be referred to the relevant GCM Manager. The Manager will provide a response to the issue as soon as possible. Step 4 If the matter remains unresolved it shall be referred for discussion between the district officials of the union and nominated senior personnel of the employer. Step 5 If resolution cannot be reached, referral by either party to the appropriate industrial authority may occur. 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 177 (2) Collective Disputes Obligations by the Parties. The parties agree that all grievances will be dealt with promptly and with each party involved keeping the others fully informed of developments and progress relating to the particular grievance. • Each grievance is to be dealt with at the first direct level of referral (eg: employee – supervisor) as far as possible. • Until a matter is resolved the ‘status quo’ shall continue; (i.e. the most recent prior position to the grievance being raised) in an endeavour to ensure that work continues subject to safety and other standards. • The application of the status quo principle in accordance with this Clause shall not prejudice any party’s position in any arbitration of the issues/s. (3) Procedure All parties are to strictly adhere to the following procedure; Step 1 The party likely to be affected shall notify the other party of any anticipated dispute or grievance. It shall be the responsibility of the initiating party to ensure their notification is received by an appropriate level officer of the other party. Step 2 If the issue is not resolved at the point at which it is first raised and is therefore likely to be remain in dispute, it shall be put in writing and exchanged by hand to the other party. That party shall respond by the end of the shift in which the issue is notified or not later than prior to the commencement of the next shift for that panel unless the parties agree otherwise. Step 3 If the matter is unresolved at Step 2 it will then be referred to the next level (i.e. Department Manager – union official) and they will agree on a response timeframe which is not to exceed 48 hours unless the parties agree otherwise. Step 4 If the matter is not resolved at Step 3 it is to be referred to the district officials of the union and the employer representative who will agree on the time period to resolve the matter; provided that this shall not exceed the cooling off period in subclause (4). (4) Cooling Off Period (a) The parties commit to a ten (10) calendar day cooling off settlement period during which work will continue as normal while the procedure is followed. The ten (10) day period shall commence on the date the matter in dispute is first put in writing to the other party. (b) Stop work meetings during the cooling off period should not be held more often than once in every four day block and may include one report back meeting, provided the total accumulated time involved is no more than one (1) hour. (c) The parties shall not involve a third party within the cooling off period unless otherwise agreed. (5) State or National Stoppages (a) Exempt Stoppages The union agrees to exempt GCM from participation in any State or national stoppages relating to standards for wages and conditions. This exemption is in recognition of the underlying theme of this agreement where the management is committed to work together with the workforce through their elected representatives. (b) Non Exempt Stoppages The union’s exemption to GCM does not extend to matters not incorporated in this Agreement (eg worker’s compensation, occupational health and safety etc) or wide ranging alteration to industrial relations so as to imperil the continued existence of the Agreement. In the event of a State or National stoppage or campaign, which is not exempt, the union undertakes to notify GCM with as much notice as reasonably possible of any impending industrial action. In the event of a non exempt dispute, the following process shall occur: (i) the parties commit to a consultation process before any action and wherever possible give notice in order to minimise any disruption to GCM’s operations where appropriate. (ii) the parties commit to man the support for industrial action from the panels rostered off shift where possible. (6) Conciliation and Arbitration Proceedings (a) At the conclusion of the cooling off period the parties may initiate the appropriate actions to resolve the dispute and this may include referring the matter to the Tribunal. (b) Any challenge as to whether or not any action constitutes a breach of the cooling off period shall be referred to the Tribunal, or in the event of the Tribunal ceasing to exist, a mutually agreed mediator, for mediation. 25. Fair Treatment Procedure If an employee continues to ignore a reasonable lawful instruction or is involved in misconduct or displays behaviour in the workplace which may be in breach of established law, the following will apply. Examples of misconduct: • Disrespect for others including abuse, harassment, bullying • Disregard for accepted and agreed rules and procedures 178 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. • Refusal to carry out reasonable lawful directions • Unsafe behaviour The Procedure: Step 1 (a) The employee’s supervisor will counsel the employee in the presence of a union representative. (b) The supervisor will record a diary note of the fact of the counselling, the reason for it and any explanation or objection raised by the employee at the time. Step 2 (a) If the employee ignores that instruction again the supervisor shall refer the matter to their manager and the manager may counsel the employee in the presence of their supervisor and union representative. (b) A record of any such counselling shall be made by the manager and a copy placed on the employee’s file. Step 3 (a) If the employee, not withstanding the counselling, again ignores that instruction and prior to a final warning being issued or further disciplinary action being taken, the manager, in the presence of the supervisor and a union representative, will warn the employee of the seriousness and that any further breaches will be subject to disciplinary action. This step will be known as the Final Warning. (b) The Manager will put the warning in writing to the employee and place a copy of their file. Step 4 In the event of further breaches of conduct from the previous step or if the initial breach is of such a serious magnitude to break the conditions of the contract, the Company reserves the right to terminate the employee’s employment. (1) Before proceeding on any action in accordance with either Step 2, 3 or Step 4 the Manager shall give the employee a hearing and consider any explanation or objection they maintain. (2) The disciplinary action referred to in Step 3 includes standing the employee down from work without pay. (3) Any stand down of an employee without pay or any other disciplinary action will be subject to prior agreement with the union. (4) Termination of employment will require union consultation but not union consent. (5) A stand down of an employee without pay allowed under this Clause may be up to 16 consecutive days. (6) The record in each case where this Clause has been invoked shall be reviewed in or about 12 months from the last date this Clause was applied to the employee and, in the event of that involving either Step 1 or Step 2 or Step 3 (but the disciplinary action allowed for in Step 3 has not been applied) and there being no repeat of the conduct by the employee since the date the Clause was last applied, the disciplinary procedure applied in relation to it under this Clause will be deemed completed and removed from the employee’s file. If the disciplinary action applied is taken in Step 3, the procedure will be deemed completed and removed from the employees file after 18 months. (7) This Clause does not affect any rights or obligations arising under Clause 6 – Contract of Service of the Award. (8) Where an enquiry or investigation is required into any matter affecting employees covered by this Agreement, the Union and the Company, of equal representation, shall jointly undertake such and provide a report to the General Manager for determination. The parties may agree to bypass steps in the process depending upon the seriousness of the confirmed breach. (9) If the parties disagree with the above procedure outlined in Steps 1 – 4 of the above then either refers the matter to the tribunal for determination. 26. Variations to Agreement (1) Subject to this Clause the parties may, by mutual consent, vary, amend, delete from or add to this Agreement at any time during its term. (2) Any agreed variation, amendment, deletion or addition shall be expressed between the parties by way of an exchange of letters. (3) Any terms of the mutual agreement between the parties arising under this Clause shall be deemed to be part of this Agreement from the date prescribed by the parties in the exchanged letters. 27. Right of Entry of Union Officials (1) An accredited official or officer of the Union shall have the right to enter the sites covered by this Agreement for the purpose of consulting with members and prospective members covered by this Agreement on employment related matters as required. (2) Accredited officials or delegates on their behalf will notify the Site Manager or his representative of their intention to visit the site giving reasonable notice. (3) An accredited representative means a person meeting the requirements under the Industrial Relations Act 1979 (WA) as amended. (4) “Reasonable notice” for the purpose of this clause shall be in writing and 24 hours in advance, unless otherwise agreed by the employer. 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 179 WAGES SCHEDULE A – ATTACHMENT 1 Base increase over previous year Effective 17 Oct 04 – 30 June 05 Effective from first pay period commencing after 1 October 2005 +4% Effective from first pay period commencing after 1 October 2006 +4% Effective from first pay period commencing after 1 October 2007 +4% 4 Panel Base (inc 2 modules) 83,421 86,758 90,228 93,837 1% 834 867 902 938 2% 1,668 1,734 1,804 1,876 Plus 4 Modules 87,870 91,385 95,040 98,842 8 Modules 92,319 96,012 99,853 103,847 Dayshift Base (inc 2 modules) 78,414 81,551 84,813 88,206 1% 784 815 848 882 2% 1,568 1,630 1,696 1,764 Plus 4 Modules 82,596 85,900 89,336 92,910 8 Modules 86,779 90,250 93,860 97,614 AUTHORITY TO APPROVE AGREEMENT SIGNATURES OF THE PARTIES Signed for and on behalf of: THE GRIFFIN COAL MINING COMPANY PTY. LIMITED Date: Stephen Rodgers General Manager – Operations Date: Garry Green Manager – Employee Relations THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING and KINDRED INDUSTRIES UNION OF WORKERS -WESTERN AUSTRALIA BRANCH Date: Jock Ferguson- Secretary COAL INDUSTRY TRIBUNAL OF WESTERN AUSTRALIA (Section 12) Griffin Coal Mining Company Pty Limited and The Coal Miners Industrial Union of Workers of Western Australia (No. 10 of 2005) MEMORANDUM OF AGREEMENT WHEREAS a conference between Griffin Coal Mining Company Pty Limited and the Coal Miners Industrial Union of Workers of Western Australia was convened by me pursuant to section 12(1) of the Coal Industry Tribunal of Western Australia Act 1992 (“the Act”) on 18 November 2005 for the purpose of finalising an agreement relating to the Griffin Coal (Production) Enterprise Bargaining Agreement 2005-2008. AND WHEREAS agreement has been reached between the applicant and the respondent in the terms of the Schedule annexed hereto and signed by me in accordance with section 12(3) of the Act is a memorandum of the matter upon which agreement has been reached and the terms and conditions agreed upon. THE Griffin Coal (Production) Enterprise Bargaining Agreement 2005-2008 in the terms of the following schedule be and is hereby registered as an industrial agreement. DATED at Perth 18 November, 2005. (Sgd.) S J KENNER, Chairman, [L.S.] Coal Industry Tribunal of Western Australian. 180 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. 1. Title (1) The terms and conditions of this document shall be known as the “Griffin Coal (Production) Enterprise Bargaining Agreement 2005-2008”. (2) The Griffin Coal (Production) Enterprise Bargaining Agreement 2005-2008 shall replace the Griffin Coal (Production) Enterprise Agreement 2001-2004 with effect 10 July 2005. 2. Arrangement 1. Title 2. Arrangement 3. Scope and Parties Bound 4. Definitions 5. Objectives 6. Term of Agreement 7. Application 8. Contract of Service 9. Additional Work Arrangements and Reductions in Demarcations 10. Hours of Work and Rosters 11. Salaries and Other Benefits 12. Superannuation 13. Public Holidays 14. Annual Leave and Shut Down/s 15. Personal Leave 16. Long Service Leave 17. Bereavement Leave 18. Other Leave 19. Redundancies 20. Contractors 21. Fixed Term Employees 22. Union Meetings and Training 28. Grievance Procedure 29. Fair Treatment Procedure 30. Employee Training 31. Variations to Agreement 32. Right of Entry of Union Officials Schedule A – Salaries Schedule B – Roster 3. Scope and Parties Bound (1) The Griffin Coal (Production) Enterprise Bargaining Agreement shall apply to the operations of Griffin Coal Mining Company Pty Ltd in the Collie Coal Basin and its employees who are eligible to be members of the union party to it and employed in classifications bound by it. (2) The parties to the Griffin Coal (Production) Enterprise Bargaining Agreement 2005-2008 are Griffin Coal Mining Company Pty Ltd and the Coal Miners Industrial Union of Workers of Western Australia. 4. Definitions (1) The following definitions shall apply: ‘Act’ means the Coal Industry Tribunal Act 1992 (WA) as amended from time to time. ‘Active Mine’ As per Schedule C – Attachment 3 ‘Agreement’ means the Griffin Coal (Production) Enterprise Bargaining Agreement 2005- 2008. ‘Ancillary work’ means activities not directly related to production work which will be undertaken subject to the provisions of this Agreement and are as follows: • exploration drilling; • liberating laterite and subsequent crushing and screening; • general cleaning of mine offices and facilities; • deliveries to store; • use of forklift; • cranage and dogging; • use of the wash down cart for cleaning equipment prior to and during maintenance; and 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 181 • delivery of machinery requiring maintenance, from the pit to the workshop and return ready for production use; and provided that the Employer may engage contractors in accordance with Clause 20 – Contractors, to carry out the work described in the first two dot points above. ‘Award’ means the Coal Mining Industry (Miners) Award 1990 as amended. 'Complying Fund' means any superannuation fund or scheme: (a) that is a complying fund or scheme for the purposes of Part IX of the Income Tax Assessment Act 1936; and (b) to which, under the governing rules of the fund or scheme, contributions may be made by or in respect of the employee permitted to nominate a fund or scheme. ‘Construction means construction, building, erection, establishment Work’ and drilling of bore fields, introduction of conveyor systems, process and transport systems and coal washery. ‘Employee’ means any person engaged by the Employer under a contract of service to carry out production work. ‘Employer’ means Griffin Coal Mining Company Pty Ltd. ‘Fixed term means any person engaged for a specific length of Employee’ time or for a specific task. ‘Ordinary rate’ means the weekly salary rate applying in accordance with Schedule A - Salaries. ‘Panel’ mean the production employees working on the same shift roster. ‘Production work’ means work that directly relates to the preparation and removal of overburden and the mining and delivery of coal, including but not limited to, the following: • drilling and blasting of overburden and coal; • preparation of the mining face involving use of dozers; • mining of overburden and coal with excavators, front end loaders, draglines, scrapers, dozers or other equipment; • transportation by trucks to the dumping point within each mine; • control of active dumps by dozers; • use of a low loader around the mine sites; • crushing, preparation, stockpiling and loading of coal; • any associated work involving the preparation of the face, dump or roadways. For example the use of graders, dozers or water carts in the incidental tasks directly associated with activities of overburden removal and coal mining; • rehabilitation of slopes involving the dozing to final shape and topsoiling; and • pumping and lubricating. ‘Shift’ means the hours allocated to an employee in accordance with the work roster at each mine site or work place. ‘Shift swap’ means a approved agreement between an employee on one panel and an employee on another panel to exchange a shift. ‘Staff’ means employees who are not bound by either this Agreement or any registered agreement binding on maintenance employees. ‘Totally means plant and equipment that is deemed in-operable by the maintenance Unserviceable’ department for production operators to continue to operate. ‘Tribunal’ means the Coal Industry Tribunal of Western Australia. ‘the Union’ means the Coal Miners Industrial Union of Workers of Western Australia. ‘Week’ means seven consecutive calendar days. ‘Weeks pay’ means the weekly salary rate applying in accordance with Schedule A – Salaries. 5. Objectives (1) The principal objective of this Agreement is to secure the future of the Employer and employees covered by it through the establishment of efficient and effective operating practices which, in turn, will minimise the Employer’s cost of operations and lead to an expansion of operations. (2) To achieve this objective: (a) the parties jointly commit to a process of continuous improvement to make the mine operations as safe, cost efficient and productive as possible and to maximise the use of the Employer's resources for the purpose of maintaining or increasing demand for the Employer coal; (b) management and employees will co-operate to achieve the objective and recognise that price and quality are the main factors which may contribute to making the Employer's coal more competitive with other energy sources; and 182 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. (c) the Employer intends to use the employees covered by this Agreement to carry out the production work as defined. (3) (a) A subordinate objective is that the Employer maintain and expand its role in the community of Collie and surrounding areas; including consideration of the establishment of training schemes for young people during Christmas shut down periods, or other times, to prepare them for future employment in mining. (b) The terms and conditions to apply under any such training scheme will be subject to prior agreement between the parties and may be different from those applying under this Agreement. (c) Any agreement for the purposes of this subclause shall be recorded between the parties and certified in the CIT. (d) It is open to the parties to jointly vary, amend or replace such agreement at any time provided the variation is registered in the CIT. 6. Term of Agreement (1) The Agreement shall come into effect 10 July 2005 and remain in effect until 30 June 2008. (2) The terms and conditions of employment contained in this Agreement shall be deemed to have had effect from 10 July 2005. (3) The parties shall commence negotiations no later than six months prior to the expiry of the Agreement for the purpose of replacing it at the end of its term. (4) In the event that the Agreement is not replaced in accordance with (3) above it shall remain in force until it is either replaced or a party withdraws from it. 7. Application (1) This Agreement shall operate to the exclusion of and shall override the award and agreements (whether written or unwritten, registered or unregistered) unless otherwise stated in the Agreement. (2) (a) the Employer's existing policies relating to the Terms and Conditions of employment of employees will continue to apply, however where those policies are inconsistent with this Agreement, the terms of this Agreement shall prevail, and; (b) Policies developed during the term of this Agreement shall be by the agreement between the parties and shall become agreements of the parties. 8. Contract of Service (1) Subject to (3) below, the Employer may direct an employee to carry out all reasonable tasks within the employee’s skills, training, experience and knowledge and such other reasonable tasks incidental to the employee’s performance of their usual duties. (2) And included in (1) above for the purposes of this Agreement, an employee may be directed to work in their primary work area or outside that area to perform tasks, which are incidental to work in their classification and as identified in Clause 9 - Additional Work Arrangements and Reduction in Demarcations, and Production Work as defined in Clause 4 - Definitions. (3) An employee shall not be obliged to work in a way contrary to safety standards or contrary to any statutory requirements or obligations applying to the work site. (4) Any direction to an employee in accordance with (1) above shall be a matter for the Employer’s discretion. (5) Temporary Term Assignments (a) The Employer, after consultation with affected employees and the union, may assign employees temporarily to work on other of its mine sites to meet operational needs. (b) Temporary term assignments not covered by (a) above may occur by agreement between the parties. (c) The terms and conditions of this Agreement will apply for the duration of any fixed temporary assignment provided that when an employee on temporary term assignment carries out duties that are predominantly incorporated into a work team, the employee will be entitled to either the terms and conditions of this Agreement or the local terms and conditions, whichever is the higher. (d) It is not intended that temporary term assignments will have the effect of changing the work arrangements of an employee on a permanent basis. (e) The Employer shall not assign any employee bound by this Agreement to any workplace where protected action, as defined by the Workplace Relations Act 1996 as amended, is being undertaken. (6) Stand Downs (a) The Employer may stand down an employee if the employee cannot be usefully employed in productive work because of an industrial dispute or machinery breakdown. (b) In the case of machinery breakdown, the right to stand down any employee will arise only if the breakdown has continued for four consecutive days (including the day of breakdown if it is a workday). (c) An employee stood down in accordance with this subclause shall not be entitled to payment for the period of stand down. (7) Training The Employer will implement training of employees to facilitate and improve the operation of its mines and skills level of employees which will be aligned to the business needs. (8) Notice of Termination of Employment by Employer (a) Subject to (b) the following notice periods for termination of an employee’s contract of service shall be given by the Employer unless the termination is for serious misconduct. 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 183 Period of Continuous Service Period of Notice Up to 1 month 1 day More than 1 month up to 1 year 1 week From 1 year up to 3 years 2 weeks From 3 years up to 5 years 3 weeks From 5 years 4 weeks (b) An employee who at the time of being given notice of termination of their contract of service is over 45 years of age and has completed two years continuous service for the Employer shall be entitled to one week’s notice in addition to any notice prescribed in (a) above. (c) The Employer may dismiss an employee at any time without notice for serious misconduct; in which case, the employee shall be due payment to the time of dismissal only and for any entitlements due but not taken by the date of dismissal. (9) Notice of Termination of Employment by Employee An employee shall give an equivalent period of notice of termination of their contract of service to the Employer as per the table in (8) (a) but the additional notice in (8) (b) shall not apply. (10) The employee and the Employer may agree on a shorter period of notice to apply. (11) Payment in Lieu of Notice If the required notice is not given, the Employer or employee, as the case may be, shall pay/forfeit a sum equivalent to the salary which would have been due had that notice been given and worked out. 9. Additional Work Arrangements and Reduction in Demarcations (1) Crane operator/General duties employees (a) The Employer will engage two crane operators/general duties employees (one on each dayshift panel). (b) These employees shall have the appropriate certification to operate cranes, forklifts, wash down equipment and to carry out the duties of a dogman. (c) When these employees are absent on annual leave, long service leave or other leave in excess of one day and prior notice has been given of this absence, their work will be carried out by production employees or the Employer may use a fixed term employee to free up an appropriately qualified employee to carry out the duties. (d) When the position/s arising under (1) (a) are filled, the Employer may utilise an appropriately skilled employee from the maintenance or production department to carry out the following: • to act as a dogman for lifts using the Employer's crane provided that for work involving a contracted crane, all loads are to be dogged by a production employee; • to operate a forklift (in the workshop area or as a tool of trade on a maintenance location or to retrieve specific parts from the stores compound but not for general deliveries) with transport to location by a production employee if a low loader is required; • to carry out the wash down equipment and the movement and filling of the wash down vehicle within the operation. (e) Staff may operate the forklift in and around the immediate stores area for the purpose of securing goods within the compound, the transfer of goods from the compound to the store and for unloading the line hauler. (2) Testing Within Maintenance (a) From the time mine equipment becomes partially or totally unserviceable to the time it is returned to full service, qualified maintenance employees may test as appropriate, deliver to the workshop from the nearest ready line and deliver from the workshop to the nearest ready line in each pit, wash down and otherwise conduct all related or peripheral activities for the return to full operation of that equipment. (b) There are four ready lines namely the Muja Maintenance workshop, Muja fuel island go bay, Ewington Maintenance workshop and Ewington Fuel Island go bay. (c) Testing in production or in operation of the low loader loaded is not included for the purposes of (a) above. (d) All parties recognise that a tradesperson carrying out repairs on equipment has the right to test a machine to its capacity before they hand it back to production. If the machine requires load testing in a working situation, a competent production operator will perform this task. (e) If maintenance requires to split the excavator or shovel from its current configuration or the fitting of rams or bucket pins, a competent production operator will be utilised to operate the equipment. (3) Bathhouse Facilities and Cleaning Work (a) The Employer may change the size of the Muja bathhouse to suit the requirements of employee numbers and, in so doing, will have regard for future labour increases at Ewington. (b) The Employer shall maintain clean facilities for its employees. (c) In addition to employees engaged pursuant to subclause (1)(a) of this Clause, two employees (one on each dayshift panel) will be employed to clean the workshop, and production employees’ bathhouse and in-pit crib hut facilities. 184 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. (d) (i) Subject to (ii) below, cleaning of the administration offices at Muja and Ewington and the main hall facility adjacent to the bathhouse at Muja will be undertaken by a contractor. (ii) Prior to any contracting out of this work the union will have an opportunity to negotiate competitive terms and conditions for an employee or former employee to undertake the work. (4) Rubbish Removal The removal of rubbish from the mine site shall be done by a contractor who shall supply the necessary rubbish bins. (5) Coal Samples Samples for analysis may be collected and delivered from a central location on site by the authorised coal assayer or a production employee. (6) Stores Delivery and Parts Movement (a) Items purchased by the Employer on the basis of ‘free into store’ will be delivered to the site by the supplier. (b) Local pick-ups shall be done by a general duties employee when available. (c) (i) when maintenance employees need to move parts on a mine site or between mine sites as part of the particular maintenance function being undertaken an appropriate rated vehicle will be used to a maximum of five ton capacity. (ii) A movement for the purposes of (i) above shall include the towing of tools such as a mobile welder. (iii) Any hiab crane on such vehicle shall not be used to lift loads greater than 3.5 tonnes. (d) (i) Other than as provided for in (c) above, the Employer shall, if a general duties employee is unavailable and the stores truck or its replacement needs to be used, direct another employee covered by this Agreement to operate the vehicle having regard for practical and efficient production needs at the time. (ii) Any employee directed to carry out this work will have the appropriate skills and accreditation for it. (e) The parties expect that the implementation of (b) and (d) above will result in an employee covered by this Agreement carrying out the work in nearly all instances. 10. Hours of Work and Rosters (1) The average weekly hours of work for each employee shall be 42 worked in accordance with a four panel roster (12 hour shifts), two panel roster (12 hour shifts). (2) Employees will work a roster sequence as per Schedule B - Roster. (3) Shift start and finish times within a panel may be staggered and may be varied by mutual agreement. (4) Each shift will start and finish at the nominated bathroom unless otherwise agreed. (5) A total of 60 minutes for (12 hr rosters) paid crib and smoko breaks may be taken within a shift in accordance with the following: (a) Breaks will be 2 x 30 minutes for 12 hr shifts or 1 x 30 / 2 x 15 minutes and will be determined by the shift panel and supervision by mutual agreement. (b) All crib breaks and smoko breaks shall be taken in in-pit huts unless otherwise directed by management, in which case they shall be taken in a crib room with equivalent facilities. (c) The time at which a crib break or smoko break is taken shall be as agreed between the panel and panel supervisor provided that in the event of no agreement being reached the maximum time without a break will be five hours. (d) In-pit crib huts shall have full facilities and be sound insulated, dust proofed and air-conditioned. (e) In-pit crib huts will be located close to the main haul routes of both the Muja and Ewington II sites. (6) Temporary roster changes: (a) Transfer from four panel to two or single panel (i) When the transfer is for a period of five or less consecutive blocks, the employee shall continue on their higher panel rate for that period. (ii) If the fixed term roster change is for six or more blocks, the rate applicable to the new roster will be paid from the start of the change provided that if for any reason the roster change does not exceed five blocks then payment of the higher panel rate will be applied retrospectively. (b) Transfer from two panel to four panel When an employee is transferred to a four panel day/night roster from a two panel (12 hour) roster, the employee will be paid the higher panel rate. 11. Salaries and Other Benefits (1) (a) Subject to this Agreement each employee will be entitled to an annualised salary in accordance with Schedule A - Salaries. (b) The hours of work contained in this Agreement are based on the Award provision of 35 ordinary hours per week and an additional 7 hours per week calculated at overtime rates. 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 185 (2) (a) Payments will be by fortnightly instalments and by direct funds transfer on the Thursday following a pay period into an account nominated by the employee. (b) Payroll deductions will be deducted and paid fortnightly. (3) Payments for Emergency Call Outs (a) An employee called to work because of an emergency (eg life threatening incident) shall be paid at twice the employee’s hourly rate for the time worked, provided that a minimum payment of four hours shall apply. (b) In the event of an emergency call out of an employee on a public holiday (with the exception of Christmas Day and Good Friday), the employee shall, in addition to any benefit arising under (a) above, be entitled to have the following credited to their annual leave: • six (6) hours for up to six (6) hours work; • 12 hours for more than six (6) hours work up to 12 hours work. (c) In the event of an emergency call out on Christmas Day, Good Friday or on an Anzac Day day shift, an employee will be entitled, in addition to any benefit arising under (a) hereof, to have the following credited to their annual leave: • six hours for up to six hours work; • 12 hours for over six hours and up to 12 hours work. (4) Fares Allowance and Additional Payment (a) (i) A daily fares allowance of $20.80 will be paid to each employee for each attendance at work at the Muja mine. (ii) The daily fares allowance for an employee required to attend and work at the Ewington mine shall be 66% of that applying for the Muja mine. (b) Adjustment of Allowance (i) The fares allowance shall be adjusted annually to reflect the average increase in the Private Vehicle Running Costs Index as calculated by the Royal Automobile Club of Western Australia (‘RAC’). (ii) Formula: The formula for the adjustment will be as follows: RAC average rate x distance x carpool number ÷ frequency = daily rate Agreed inputs: RAC Average = Large family car > 3 ltr + large 4WD ÷ 2 Distance = 52kms Muja – Ewington 66% of Muja rate Car Pool = 2 - agreed site average Frequency = 4 - agreed site average (iii) Date of adjustment: Any increase will apply in July/August each year in the first pay period commencing on or after the annual publication of the RAC Private Vehicle Running Costs Guide. (iv) In the event of a reduced cost, the fares allowance will remain as is. (c) In addition to any entitlements to the fares allowance, employees shall receive the following payments: $375.00 on 1 July 2006 $400.00 on 1 July 2007 $425.00 on 1 July 2008 (5) Work Clothes etc (a) The Employer will provide the employees with one issue of industrial clothing each year. An issue of industrial clothing consists of: • 1 pair of protective footwear; • 3 long or short sleeve shirts; • 3 pairs of long trousers; or overalls or shorts • 1 jumper • 1 winter jacket every 2 years Additional clothing may be made available, at the Employer's discretion, on a more frequent interval when required due to fair wear and tear and/or damage. The clothing issue must be worn at all times whilst on duty and must be maintained to a reasonable standard of presentation and repair. (b) Protective clothing and equipment which the Employer will make available for employees The Employer will make available to employees, wet weather gear, safety glasses and other personal protective equipment on an as needs basis, at no cost to employees. Appropriate safety equipment must be worn at all times in accordance with the Employer's policies. 186 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. (6) Worksite - Based Benefits (a) Tea, coffee and milk will be supplied by the Employer for employees’ use; with this to be co- ordinated within each Department. The Employer will supply 1 x Thermos and 1 x Crib bag in the second year of this Agreement. (b) Telephone The Employer shall provide a telephone on site for local calls by employees free of charge. (7) Workers’ Compensation Workers’ compensation payments are to be paid on the basis of the annualised salary rates. (8) Employee Insurance (a) 24 hour illness or accident cover is provided through the Employer's Salary Continuance Plan. (b) Travel insurance covering travel to and from work shall be taken out by the Employer for each employee. (9) Death Benefit Employees will be provided with Death Benefit cover to the value of $30,000 in addition to the benefits provided under (8) above. 12 Superannuation Pursuant to Federal Superannuation Regime Contributions (1) The Employer will pay an amount equivalent to 9% of each employee's Annualised Salary into a superannuation fund listed in subclause (4). (2) The Employer's superannuation contribution in accordance with subclause (1) of this clause shall not fall below the amount required in order to avoid incurring a liability to pay the superannuation guarantee charge under the Superannuation Guarantee (Administration) Act 1992 (Commonwealth). (3) Subject to statutory limits in the Income Tax Assessment Act 1936 (Commonwealth), and provided the election is made before the entitlement accrues, an employee may elect to sacrifice: (a) a portion of their Annualised Salary; and/or (b) the annual payment in respect of sick leave provided for in subclause 15(6) of this Agreement, and for the sacrificed amount to be contributed by the Employer to a superannuation fund set out in subclause (4). (4) The superannuation funds for subclause (1) are: • Coal Industry Superannuation Fund; • AMP Custom Super Fund; • Westscheme provided in each case, the fund is a Complying Fund. Contributions to Coal Industry Superannuation Fund Pursuant to State Coal Industry Superannuation Regime (5) In addition to the contributions required under subclause (1) above, the Employer shall contribute to the Coal Industry Superannuation Fund an amount or rate that is required for the Employer to comply with the Coal Industry Superannuation Regulations 1990 (WA) (the regulations). (6) Without in any way adding to the obligation under subclause (5) above, the parties acknowledge that, as at the date of this agreement: (a) the amount to be paid by the Employer under subclause (5) must not be less than 7% or more than 10% of the benchmark amount (as defined in the Coal Industry Superannuation Regulations +1990 (WA)) multiplied by the number of employees employed by the Employer that are bound by this Agreement. 13. Public Holidays (1) The following is to apply with respect to gazetted public holidays. (a) The annual shutdown shall include Christmas Day, which will be recognised as a non-rostered day without loss of pay by “slipping” the roster. (b) Good Friday will be recognised as a non-rostered day without loss of pay by “slipping” the roster by 24 hours. (c) (i) Any employee who is rostered on and works on Australia Day, Labour Day, Easter Monday, the Sovereign’s Birthday or Foundation Day shall be paid an additional sum equal to the average payment for a 12 hour shift; or (ii) In lieu of the payment in (i) above the employee may elect to have the hours added to their annual leave entitlement. (d) Boxing Day and New Years Day will be deemed to be in the list of public holidays in (c) above of if they are not included in the annual shut down (reduced crew only). (e) Anzac Day will be observed as follows: (i) Employees rostered for the day shift only shall be entitled to be absent from work without loss of pay. (ii) Employees rostered to work on a night shift, which ends or begins on Anzac Day, shall be entitled to the payment in accordance with (c) above. (iii) The roster of employees not covered by (i) above will not be affected by the releasing of day shift employees on Anzac Day. 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 187 (f) The time for the purposes of any payment under this Clause will be from midnight to midnight on the date of the gazetted public holiday. 14. Annual Leave and Shut Down/s (1) An employee shall be entitled to 252 hours annual leave (for 12 hr continuous shift rosters) for each 12 months of continuous service. (2) Subject to this clause, the taking of annual leave and long service leave shall be managed within a crew. The percentage of employees permitted to take leave shall be 15% of a shift panel. During the peak holiday periods of. Christmas and Easter the number permitted shall be 20% of a shift panel. (3) Employees will be able to take annual leave as single days in accordance with leave planning for crews approved by the Employer. (4) A shut down of 17 days comprising eight (8) days of rostered shifts for each employee (including Christmas Day and New Years Day). (5) The following conditions will apply during a shutdown: (a) Christmas Day will be recognised as a non-rostered day without loss of pay by ‘slipping’ the roster by 24 hours. (b) The reduced crew shall consist of a minimum of two panels of 10 employees on each panel, or other numbers as determined by the Employer, and shall be selected from volunteers having regard for the required balance of skills. (c) The reduced crew will be required to maintain coal deliveries and other mining duties as directed. (d) Employees on the reduced crew shall be paid the four panel rate. (e) The Employer may use fixed term employees as provided in Clause 21. – Fixed Term Employees, to undertake seasonal work including pit maintenance, drainage and mine rehabilitation during the shut down. (6) As a general rule the timing of the annual shut down will include the week to and including Christmas Day and the week from Christmas Day. (7) The Employer may allow an employee to take a maximum of two weeks in advance of the annual leave actually accruing as an entitlement. (8) If an employee who has taken annual leave in advance terminates prior to completing the 12 months service for the full entitlement to accrue, the Employer may, for each complete week of the 12 months not served, deduct from remuneration payable to the employee on termination the salary paid for the leave in advance. (9) Subject to this clause, an employee shall be entitled to payment for any untaken accrued leave calculated on the basis of completed weeks of employment as a proportion of 52. (10) Sickness on Annual Leave If employees are incapacitated or confined to hospital or home for a period greater than seven consecutive calendar days whilst on annual leave, they may have the annual leave, to the extent of the absence, re-credited, provided that the Employer is informed of the incapacity at the time that it occurs and the employee provides the Employer with a medical certificate confirming the confinement. (11) When an employee is rostered on and subsequently is on approved annual leave, the public holiday will be added to the employees annual leave bank. 15. Personal Leave (1) Any employee taking sick leave shall endeavour to notify the Employer prior to the commencement of their shift. (2) Any employee taking sick leave shall be required to justify their absence in accordance with the standards prescribed in the Award in Clause 12(6). (3) An employee taking sick leave will be paid according to a Salary Continuance Insurance Plan (‘the Plan’) which covers an employee for illness or accident up to 30 calendar days at the normal salary rate and thereafter up to two years at 75% of the normal salary rate. (4) The Plan does not require an employee to undertake a pre-entry medical examination and clearance, but employees are required to comply with all the insurer’s requirements as to the provision of information in regard to a particular claim. (5) No accrual of sick leave applies under this Agreement. (6) Up to five shifts may be paid out to an employee in January of each year provided that the payment will be reduced by any absence on sick leave in the previous calendar year in accordance with the following. Absence on sick leave Incentive Payment 0 shifts Equivalent to 5 shifts 1 shift Equivalent to 4 shifts 2 shifts Equivalent to 3 shifts 3 shifts Equivalent to 2 shifts 4 shifts Equivalent to 1 shift 5 shifts No payment (7) Subject to an application for a review by an employee who has been absent from work on sick leave for five consecutive shifts or more, the Employer may decide that some other condition apply in lieu of that provided for in (6) above. (8) Carer's Leave 188 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. (a) Employees are entitled to use carer's leave as per the Minimum Conditions of Employment Act to provide care and support for members of the employees immediate family who are sick and require care and support from the employee. (b) Employees are to advise the Employer where possible at least two hours before the start of a rostered shift of the employees inability to attend work. (c) Employees must provide a medical certificate certifying that the employee is required to provide care for a family member who is sick or who requires the employees care. (d) For the purposes of this clause “immediate family” means spouse, parent, sibling, child, step child, grandchild, parent-in-law, grandparent, defacto or any other person who lives with the employee as a member of their family. 16. Long Service Leave (1) An employee who works a four panel and a two panel 12 hour shift roster shall be entitled to long service leave of 45.5 shifts (546 hours) after eight years of continuous service. (2) Long service leave will be managed within a crew in accordance with the leave policy. (3) The minimum period for the taking of any long service leave shall be six shifts. 17. Bereavement Leave (1) Employees are entitled to two shifts paid bereavement leave on the death of a member of the employee’s immediate family including in-laws, foster parents, in addition to the balance of the shift without loss of pay if the employee receives such notification when at work. (2) If interstate, overseas or extended travel to attend the funeral is required, additional paid leave may be approved by the Employer. 18. Other leave (1) Jury Service as per clause 16 of the Award. (2) Employees are entitled to unpaid parental leave as per the Minimum Conditions of Employment Act 1993 (WA). (3) An absence in excess of two hours to attend a funeral may be taken as annual leave subject to approval by the Employer. (4) Pressing Domestic – subject to the approval of the Departmental Manager, an employee may be absent from work with pay, because of an emergency. 19. Redundancies (1) (a) For the life of this Agreement the Employer shall maintain a minimum manning level of 155 production employees. In the event of a downward movement in contracted tonnages below 2.650 million tonnes per annum and the Employer is of the opinion it cannot maintain the existing minimum manning levels of 155, a voluntary redundancy program may be implemented. (b) If the Employer implements a programme of voluntary redundancies the parties are to negotiate on a reasonable time frame for the program for redundancies to take place. (c) Should the voluntary redundancy program fail to attract sufficient volunteers the parties shall negotiate a process to achieve any such reductions. Should a dispute arise between the parties in regard to the above the matter may be referred to the Tribunal for conciliation. (2) In addition to any contractual benefits due on termination of employment and any superannuation benefits, the following payments shall apply in the event of a redundancy. (a) A minimum amount equivalent to 13 weeks’ pay (maximum uncapped); (b) plus four weeks’ pay; (c) plus an amount equivalent to one week’s pay for each year of service; (d) plus an amount equivalent to one week’s gratuity for each year of service; (e) plus an amount equivalent to one week’s pay for each year of service above 20 years; (f) plus an amount equivalent to three weeks’ pay per year for any employee over 50 years of age; (g) Plus the sum of $20,000 in the case of a voluntary redundancy. (3) This Clause shall not apply to employees engaged on fixed term contracts. 20. Contractors (1) The parties recognise the need for the utilisation of contractors from time to time to meet the operational needs of the mines. (2) Subject to this Agreement, contractors will be used when the Employer is of the view that the contractor can carry out warranty work or new construction work more efficiently, more effectively, at less cost or with greater expertise than can employees. (3) Subject to this clause, the Employer will discuss with the Union the nature and extent of the work involved. The Employer will also give the Union notice in writing of an intention to engage a contractor and the reasons for it and the union will respond in writing. (4) Exploration drilling in non-active mining areas, drilling within an active mine where a one person rig is utilised and preparation and crushing of laterite where that work is undertaken by a contractor (with employees utilised to rip and push laterite to a stockpile) shall be subject to prior notification to the union. Confirmation of agreement by the union is not required. 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 189 (5) The hours of work by or on behalf of contractors engaged pursuant to (4) above shall be bound by the requirements of (7)(d) of this clause. (6) When a contractor is drilling in accordance with subclause (4) within an active mining area with a crew of two or more, the Employer shall provide one employee to work with the contractor and this employee will be included in the crew and take cribs and smoko in accordance with the contractor’s requirements. (7) In engaging any contractor to carry out work the Employer will, subject to this clause; (a) have reached prior agreement with the Union to engage the contractor (with the exception of those contractors covered by subclause (4); (b) require the contractor, to apply the base pay rates outlined in Schedule A. (c) require any employees of the contractor to undergo the Employer’s induction processes and comply with all relevant Mine Special Rules and Safety Procedure ( No. 5737); (d) require the contractor to limit the hours of any individual carrying out the contract work to no more than 60 hours in a week worked over no more than six days in a week and with shifts to be no more than 12 hours. (e) where the contract extends beyond three weeks, the parties will consult with a view to reaching agreement on hours worked. If the parties cannot agree sub clause 10 will apply. (f) where a contractor is engaged for construction work (d)(2) shall not apply. (8) (a) the Employer will give the Union 24 hrs notice prior to engaging contractors except under an emergency situation. (b) the Contractor notification form will be signed by the Mine Manager or nominated representative before acceptance by the Union Delegate on shift. (c) upon such confirmation the form is to be posted on both the Muja and Ewington notice boards before the work commences. (9) (a) the Employer and the Union will confer on any extension of time of engagement of a contractor and variation of any limits in this Agreement or the Award so that the job may be completed expeditiously. (b) any agreement will be recorded in an exchange of letters between the parties (with the exception of contractors covered by subclause (4) of this clause). (10) If no agreement is reached as a result of (8) and 7(d) above the matter will be referred to the General Manager – Operations and the District Official of the union. (11) If no agreement is reached between the General Manager – Operations and the District Official on the engagement of a contractor, the Employer may proceed on with the contractor unless the Union makes an application to the Tribunal within three days of being informed of the Employer's intention. (12) Notwithstanding any engagement of contractors, the Employer will continue to provide training opportunities for its employees to enhance their skills for the purpose of efficiently and effectively carrying out work allocated to them. 21. Fixed Term Employees (1) Subject to this Agreement, the Employer may engage persons on fixed term contracts for periods up to 18 months for the purpose of relieving when employees are on leave or to meet specific work demands. (2) The Employer shall give prior notice to the Union of any intention to engage a short term employee. (3) The Employer can employ up to seven percent of the total permanent employees (163 at commencement of this Agreement.) Any employee on a fixed term contract shall not be, and shall not be deemed to be, a permanent employee. (4) The parties agree to the employment of additional fixed term employees above the 7% conditional upon; (i) The Employer employing fixed term employees in blocks of five (5). (ii) For every block of five positions, one fixed term employee will be made permanent. (iii) The permanent position will be filled from the existing fixed term employees. (5) Where possible the Employer will give preference to qualified applicants who reside in the Collie region and/or have previous experience in the coal mining industry when engaging people on short fixed term contracts. (6) The ability to engage persons on short fixed term contracts shall not be used by the Employer in lieu of more work and career opportunities for permanent employees. (7) (a) A fixed term employee shall be entitled to the following on expiry of their fixed term contract: Period of Continuous Service Severance Pay three mths up to six mths 1 weeks’ pay six mths up to nine mths 2 weeks’ pay nine mths up to twelve mths 3 weeks’ pay twelve mths up to eighteen mths 4 weeks’ pay (b) No severance payment shall be due in the case of a fixed term contract of less than three months. (8) If an employee on a fixed term contract applies for any accrued annual leave for personal reasons, the employee’s Department Manager will consider the application on its merits. (9) If a fixed term contract exceeds 12 months, then the procedure for application, approval and taking of annual leave by permanent employees shall apply to a fixed term employee after 12 months continuous service by the Employer. 190 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. (10) The Employer and the Union will review the use of fixed term contracts annually. (11) A fixed term employee shall be entitled to benefits in accordance with Clause 11 – Salaries and Other Benefits. 22. Union Meetings and Training (1) (a) Regular Meetings: (i) Provision will be made for off shift employees to attend a one hour paid union meeting every month. (ii) Payment will be on the average designated rate per hour (i.e. the fortnightly average base divided by 84) (iii) The total payment for the meeting will be based on the number of personnel rostered off when the meeting is held. (b) Irregular Meetings: (i) If the Union notifies the Employer that the shift rostered on needs to attend one of the regular meetings together with those employees off shift, this will occur provided that the meeting will be held at 5.15 pm in Collie if possible. (ii) Any employee who leaves early or is late reporting for their rostered shift will have pay deducted for the period of that absence. (iii) The total value of the payment for the meeting will be based on the number of employees rostered on and off when the meeting is held. (c) Attendance at Union meetings The Union will provide the Employer with the names of all employees who attended for the duration of any meeting and each attendee will be paid an equal proportion of the total value of payment less tax. (2) Aggregate Meeting The Employer will pay for one aggregate meeting per annum of two hours duration for those employees who are rostered to attend work on that day. (3) Delegates/Stewards Attendance by delegates/stewards rostered off at meetings called at the request of the Employer will be treated as credited time at the rate of single time up to six hours (six hours and above at double time) for the meeting duration to be allocated to the delegates annual leave entitlement. (4) Union Training (a) Subject to management approval, Union representatives will be permitted up to two days in any financial year without deduction of pay to attend training courses. (b) Training time for a union representative may accumulate for up to three years. (c) Unused training days may be transferred from one union rep to another, subject to management approval. (5) Elected officials and/or delegates who are rostered on when the Union’s monthly meeting, and Board of Management is scheduled, shall be released from work with no loss of payment. (6) The Employer will meet with Union delegates after the conclusion of regular meetings of members subject to the Union making such a request shortly after such meeting. (7) When an official of the Union is required to attend the Tribunal, the Employer will release them from duties without loss of entitlements. 23. Grievance Procedure (1) Individual Disputes: (a) If an individual raises a grievance the procedure in subclause (c) will apply during which time work will continue in accordance with the reasonable direction of the Employer having regard for safe working practices. (b) During the dispute resolution procedure the employee may elect to involve a representative to assist in resolution of the dispute by participating in discussions and providing advice. (c) The procedure for resolution of disputes is as follows: Step 1 Details of the dispute or grievance will be presented to the employee/s immediate Supervisor. The Supervisor will provide a response to the issue as soon as possible. If a response is not given by the end of the Supervisor’s next rostered shift, then the Supervisor will give a progress report which will include an undertaking as to the time by which a response might be given. Step 2 If resolution has not been achieved, or the Supervisor’s immediate response is unacceptable; the matter may be referred in writing by the employee/s to the relevant Superintendent or Supervisor. The Superintendent or Supervisor will provide a response to the issue as soon as possible. If a response is not given by the end of the Superintendent’s or Supervisor next rostered shift, a progress report will be given which will include the time by which a response might be given. Step 3 If resolution has not been achieved, or the Superintendent or Supervisors immediate response is unacceptable, the matter will be referred to the relevant Manager. The Manager will provide a response to the issue as soon as possible. Step 4 If the matter remains unresolved it shall be referred for discussion between the district officials of the Union and nominated senior personnel of the Employer. Step 5 If resolution cannot be reached, referral by either party to the Tribunal. 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 191 (2) Collective Disputes: Obligations by the Parties • The parties agree that all grievances will be dealt with promptly and with each party involved keeping the others fully informed of developments and progress relating to the particular grievance. • Every grievance is to be dealt with at the lowest possible level in the first instance (i.e. employee-supervisor). • Until a matter is resolved the ‘status quo’ shall continue; that being the most recent prior position so as to ensure, wherever safely possible to do so, that work will continue as normal and without prejudice to any arbitral procedures in the contested matter. (3) Procedure: All parties are to adhere to the following procedure: Step 1 The party likely to be affected shall notify the other party of any anticipated dispute or grievance. It shall be the responsibility of the initiating party to ensure their notification is received by an appropriate level office of the other party. Step 2 If the issue is not resolved at the point at which it is first raised and is therefore likely to be remain in dispute, it shall be put in writing and exchanged by hand to the other party. That party shall respond by the end of the shift in which the issue is notified or not later than prior to the commencement of the next shift for that panel unless the parties agree otherwise. Step 3 If the matter is unresolved at Step 2 it will then be referred to the next level (i.e. Department Manager – Union official) and they will agree on a response timeframe which is not to exceed 48 hours unless the parties agree otherwise. Step 4 If the matter is not resolved at Step 3 it is to be referred to the district officials of the Union and the Employer representative who will agree on the time period to resolve the matter; provided that this shall not exceed the cooling off period in subclause (4)(a) (4) Cooling Off Period (a) The parties commit to a ten calendar day cooling off settlement period during which work will continue as normal while the procedure is followed. The ten day period shall commence on the date the matter in dispute is first put in writing to the other party. (b) Stop work meetings during the cooling off period should not be held more often than once in every four day block and may include one report back meeting, provided the total accumulated time involved is no more than one hour. (c) The parties shall not involve a third party within the cooling off period unless otherwise agreed. (5) State or National Stoppages (a) Exempt Stoppages The Union agrees to exempt the Employer from participation in any State or National stoppages relating to standards for wages and conditions. This exemption is in recognition of the underlying theme of this Agreement where the Employer is committed to work together with employees through their elected representatives. (b) Non Exempt Stoppages The Union exemption does not extend to matters not incorporated in this Agreement (eg worker’s compensation, occupational health and safety etc) or wide ranging alteration to industrial relations so as to imperil the continued existence of the Agreement. In the event of a State or national stoppage or campaign, which is not exempt, the Union undertakes to notify the Employer with as much notice as reasonably possible. In the event of a non exempt dispute, the following process shall occur: (i) The parties commit to a consultation process before any action and wherever possible give notice in order to minimise any disruption to the Employer’s operations where appropriate. (ii) The Union commits to engage support for industrial action from the panels rostered off shift where possible. (6) Conciliation and Arbitration Proceedings: (a) At the conclusion of the cooling off period the parties may initiate the appropriate actions to resolve the dispute and this may include referring the matter to the Tribunal. (b) Any challenge as to whether or not any action constitutes a breach of the cooling off period shall be referred to the Tribunal, or in the event of the Tribunal ceasing to exist, a mutually agreed mediator, for mediation. 24. Fair Treatment Procedure If an employee continues to ignore a reasonable lawful instruction or is involved in misconduct or displays a behaviour in the workplace which may be in breach of established law, the following will apply. 192 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. Step 1 (a) The employee’s supervisor will counsel the employee in the presence of a Union representative. (b) The Supervisor will record a diary note of the fact of the counselling, the reason for it and any explanation or objection raised by the employee at the time. Step 2 (a) If the employee ignores that instruction again the Supervisor shall refer the matter to their Manager and the Manager may counsel the employee in the presence of their Supervisor and Union representative. (b) A record of any such counselling shall be made by the manager and a copy placed on the employee’s file. Step 3 (a) If the employee, not withstanding the counselling, again ignores that instruction and prior to a final warning being issued or further disciplinary action being taken, the Manager, in the presence of the Supervisor and a Union representative, will warn the employee of the seriousness and that any further breaches will be subject to disciplinary action. This step will be known as the Final Warning. (b) The Manager will put the warning in writing to the employee and place a copy on their file. Step 4 In the event of further breaches of conduct from the previous step or if the initial breach is of such a serious magnitude, the Employer reserves the right to terminate the employee’s employment. (1) Before proceeding on any action in accordance with either Step 2, 3 or Step 4 the Manager shall give the employee a hearing and consider any explanation or objection they maintain. (2) The disciplinary action referred to in Step 3 includes standing the employee down from work without pay. (3) Any stand down of an employee without pay or any other disciplinary action will be subject to prior agreement with the Union but not including termination of employment (4) Examples of misconduct include: • Disrespect for others including abuse, harassment, bullying • Disregard for accepted and agreed rules and procedures • Refusal to carry out reasonable lawful directions • Unsafe behaviour (5) Termination of employment will require Union consultation but not union consent. (6) A stand down of an employee without pay allowed under this clause may be up to 16 consecutive days. (7) The written record in each case where this clause has been invoked shall be reviewed on or about 12 months from the last date this clause was applied to the employee and, in the event of that involving either Step 1, Step 2 or Step 3 (but the disciplinary action allowed for in Step 3 has not been applied) and there being no repeat of the conduct by the employee since the date the clause was last applied, the disciplinary procedure applied in relation to it under this clause will be deemed completed and the record removed from the employees file. If the disciplinary action applied is taken in Step 3 (Final Warning), the procedure will be deemed completed and the record removed from the employees file after 18 months. (8) This clause does not affect any rights or obligations arising under Clause 8 of this Agreement. (9) Where an inquiry or investigation is required into any matter affecting employees covered by this Agreement, parties with equal representation shall undertake to provide a report to the General Manager for determination. The parties may agree to bypass steps in the process depending upon the seriousness of the confirmed breach. (10) If either party has a dispute with the procedure in Steps 1 – 4 then they may refer the matter to the Tribunal for determination. 25. Employee Training The Employer is committed to provide ongoing relevant training which recognises the needs of the operation and the aspirations of employees. Training will be based on responsibility and performance coupled with development and enhancement of skills with the objectives of generating high standards of productivity and having accredited training recognised externally. (1) (a) The parties commit to allocate two employees per shift to training. Should the Supervisor raise concern with respect to attendance that may have an impact on production, the shift delegate and Supervisor will confer in accordance with the agreed guidelines, ensuring neither training nor production is prejudiced. (b) The parties may amend the training arrangement by agreement. (2) Once a commitment is made to an employee for training, the Employer agrees to continue with training until it is completed. 26. Variations to Agreement (1) Subject to this clause the parties may, by mutual consent, vary, amend, delete from or add to this Agreement at any time during its term. (2) Any agreed variation, amendment, deletion or addition shall be expressed between the parties by way of a written Agreement registered with the Tribunal. 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 193 27. Right of Entry of Union Officials (1) An accredited official or officer of the Union shall have the right to enter the mine sites covered by this Agreement for the purpose of consulting with members and prospective members covered by this Agreement on employment related matters as required. (2) Accredited officials or delegates on their behalf will notify the Site Manager or representative of their intention to visit the site giving reasonable notice. (3) An accredited representative means a person meeting the requirements under the Industrial Relations Act 1979 (WA) as amended. (4) “Reasonable notice” for the purpose of this clause shall be in writing and 24 hours in advance, unless otherwise agreed by the Employer. SCHEDULE A – SALARIES Base increase over previous year Effective 05 Sept 04 – 1% Effective from first pay period commencing 10 July 2005 4% Effective from first pay period commencing 9 July 2006 4% Effective from first pay period commencing 8 July 2007 4% 4 Panel Base 80,334 83,548 86,890 90,365 Plus 1 Modules 81,405 84,661 88,048 91,570 2 Modules 82,477 85,776 89,207 92,775 3 Modules 83,548 86,890 90,365 93,980 4 Modules 84,619 88,003 91,524 95,184 5 Modules 85,690 89,118 92,683 96,390 6 Modules 86,761 90,232 93,841 97,594 7 Modules 87,832 91,345 94,999 98,799 8 Modules 88,904 92,460 96,158 100,005 2 Panel Base 75,514 78,534 81,676 84,943 Plus 1 Modules 76,520 79,581 82,764 86,075 2 Modules 77,528 80,629 83,854 87,208 3 Modules 78,534 81,676 84,943 88,340 4 Modules 79,541 82,722 86,031 89,473 5 Modules 80,548 83,770 87,121 90,606 6 Modules 81,555 84,817 88,210 91,738 7 Modules 82,561 85,864 89,298 92,870 8 Modules 83,569 86,911 90,388 94,003 194 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 195 196 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. AUTHORITY TO APPROVE AGREEMENT SIGNATURES OF THE PARTIES Signed for and on behalf of: THE GRIFFIN COAL MINING COMPANY PTY. LIMITED Date: Stephen Rodgers General Manager – Operations Date: Garry Green Manager – Employee Relations THE COAL MINERS INDUSTRIAL UNION OF WESTERN AUSTRALIA Date: Gary Wood Secretary COAL INDUSTRY TRIBUNAL—Awards/Agreements— Interpretation of— BEFORE THE WESTERN AUSTRALIAN COAL INDUSTRY TRIBUNAL HELD AT COLLIE ON 26 JULY 2005 APPLICATION NO. 3 OF 2005 BETWEEN: THE COAL MINERS INDUSTRIAL UNION OF WORKERS OF WESTERN AUSTRALIA Applicant and GRIFFIN COAL MINING COMPANY PTY LTD Respondent IN THE MATTER OF: Interpretation of the Griffin Coal (Production) Enterprise Agreement 2001 - 2004 DECISION OF THE TRIBUNAL 1 THE CHAIRMAN: This application comes before the Tribunal arising from an industrial dispute concerning the meaning and effect of cl 12 of the Griffin Coal (Production) Enterprise Agreement 2001-2004 (“the Agreement”). The application has been made pursuant to s 10 of the Coal Industry Tribunal of Western Australia Act 1992 (“the Act”). 2 The essence of the dispute is this. The applicant submits that on its proper construction, cl 12 of the Agreement requires the respondent to contribute superannuation contributions of 15 per cent of an employee’s salary. The respondent says that the terms of the Agreement, properly construed, do not give rise to such an obligation rather cl 12 of the Agreement requires contributions to both Commonwealth legislation and the Coal Industry Superannuation Act 1989 (“the CIS Act”) which does not equate to a contribution rate of 15 per cent. 3 Given that the employer and the employee members of the Tribunal are evenly divided on the appropriate decision in this matter pursuant to the Act the decision is that of the Chairman. 4 A preliminary issue was raised by the respondent concerning the jurisdiction of the Tribunal to deal with this matter. I will turn to this issue first. Jurisdiction 5 Senior counsel for the respondent, Mr Martin, submitted that the application was beyond the jurisdiction of the Tribunal under s 10 of the Act. His submission was in summary that the Agreement, the subject of this application, resulted from the settlement of an industrial dispute referred to the Tribunal at about the time of the Agreement being made. On the making of the Agreement, as the submission went, the industrial dispute was settled by the making of a memorandum of agreement by the Chairman of the Tribunal under the Act, which Agreement has the force and effect of an industrial agreement registered under the Industrial Relations Act 1979 (“the IR Act”). The submission was that in effect, the applicant was seeking by this application, to reopen the circumstances leading to the making of the Agreement. Alternatively, there was a brief submission made that the application essentially sought the enforcement of the Agreement by the Tribunal, which was not permissible. 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 197 6 The applicant, represented by Ms Boots of counsel, submitted that the Tribunal did have jurisdiction and power to deal with this matter. In short, her submission was that the Tribunal has the power to inquire into and deal with “any industrial matter arising under any order, decision or award of the Tribunal”: s 10(1)(b) Act. Ms Boots submitted that the subject matter of the application was an industrial matter as defined in s 3 of the Act and therefore was within the jurisdiction of the Tribunal. 7 For the following reasons, which I can state relatively shortly, in my opinion, the Tribunal has jurisdiction and power to deal with this matter. 8 Section 10 of the Act deals with the jurisdiction of the Tribunal. Relevantly, s 10(1) provides as follows: “(1) Notwithstanding any of the provisions of the Industrial Relations Act 1979, or of any award or industrial agreement made or registered under that Act, the Tribunal has cognizance of and authority to inquire into and deal with — (a) any industrial dispute relating to the coal mining industry in the State not extending beyond the limits of the State referred to the Tribunal; (b) any industrial matter arising under any order, decision or award of the Tribunal, relating to the coal mining industry in the State referred to the Tribunal; and (c) any other matter affecting industrial relations in the coal mining industry in the State referred to the Tribunal.” 9 Additionally, the definitions of “industrial dispute” and “industrial matter” are relevant for present purposes and in s 3 of the Act they provide that: “industrial dispute” means — (a) any dispute as to an industrial matter; (b) any threatened or impending or probable dispute as to any industrial matter; or (c) any dispute relating to the demarcation of functions of employees or classes of employees whether as between employers and employees or as between members of different organizations in the coal mining industry of Western Australia; “industrial matter” means any industrial matter likely to affect the amicable relations of employers and employees in the coal mining industry of Western Australia;” 10 The Agreement resulted from a memorandum of agreement pursuant to s 12(3)(c) of the Act. This resolved the industrial dispute then before the Tribunal in relation to the circumstances in existence leading to the making of the Agreement. However, in my opinion, that does not mean that there cannot be subsequent to its making, an industrial matter arising from the terms of the Agreement itself. 11 By s 3 of the Act, for the purposes of s 10(1)(a), an “industrial dispute”, has the meaning set out above. Furthermore, for the purposes of the meaning of “industrial dispute”, there must be an industrial matter which means a matter of an industrial character, which is likely to affect the amicable relations of employers and employees in the coal industry in this State. 12 The present dispute relates to superannuation contributions to be made to employees, members of the applicant. The obligation to make those contributions arises pursuant to cl 12 of the Agreement. The parties are in dispute about the level of contributions required, and that dispute is to be resolved by the Tribunal forming a view as to the meaning and effect of cl 12 of the Agreement. In my opinion, the subject matter of the present disagreement is an industrial matter because it is a matter which has an industrial character, that being a dispute as to the entitlement of employees to superannuation contributions pursuant to an industrial instrument. The parties being in dispute about that issue, in my opinion, for the purposes of s 3 of the Act, the present matter before the Tribunal is an “industrial dispute” as defined, notwithstanding it arises from the operation of an industrial agreement already in existence. 13 Given the terms of s 46 of the IR Act, when read with ss 12(4) and 17(1) of the Act, the Industrial Commission has no jurisdiction to interpret an agreement made before the Tribunal, because such an agreement, is not an industrial agreement made by the Commission in the terms of ss 46(5) and 7(1) of the IR Act. If the respondent's submissions as to this matter were correct, that would mean in effect that the present dispute would be unresolvable within the industrial relations machinery of this State, which is not a result that was likely to be intended by the framers of this legislation in my view. 14 As to the submission by counsel for the applicant that the present matter is a matter “arising under any order, decision or award of the Tribunal” for the purposes of s 10(1)(b) of the Act, given my views as to the jurisdiction of the Tribunal to deal with the present dispute under s 10(1)(a) of the Act, it is not necessary for me to determine that matter on this occasion. However, it does seem to me to be arguable at least, that a memorandum of agreement made under s 12(1)(3)(c) when read with the terms of s 17(1) of the Act, is not an “order, decision or award of the Tribunal” for that purpose. I would also add that it is not immediately apparent why the present dispute before the Tribunal, could not also be regarded as “any other matter affecting industrial relations in the coal mining industry in this State”, for the purposes of s 10(1)(c), despite the terms of s 10(4) of the Act. Again, that matter can await another day. 15 I am also not persuaded, for the reasons I have expressed above, that the present application involves the enforcement of the Agreement for the purposes of s 83 of the IR Act. The Merits 16 Before considering the contentions of the parties and the issue of interpretation of cl 12 of the Agreement, I firstly briefly turn to some relevant principles to apply in this matter. Principles of Interpretation 17 It is settled law that in the interpretation of any written instrument, the first task is to examine the words used in the context of their ordinary and natural meaning. The meaning of words so construed, is to be considered in the context of the document as a whole. The approach of the Industrial Commission in this State to the interpretation of its awards was considered by the Industrial Appeal Court in Norwest Beef Industries Ltd & Derby Meat Processing Co Ltd v West Australian Branch, Australian Meat Industry Employee's Union (1984) 64 WAIG 2124. In that case, Brinsden J observed at 2127 that in the interpretation of an award, the principles applicable to the construction of instruments generally will apply that being, if the term under consideration is clear and unambiguous it is not permissible to look to extrinsic 198 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. material to alter the meaning of the provision under question. Similarly, with industrial agreements, this approach was adopted by Brinsden J in Robe River Iron Associates v Amalgamated Metal Workers & Shipwrights Union of Western Australia (1987) 67 WAIG 1097. In that case, Brinsden J said at 1098: “The meaning of a provision in the Agreement is to be obtained by considering the terms of the Agreement as a whole. If the terms are clear and unambiguous it is not permissible to look to extrinsic material to qualify the meaning of the particular provision being considered. Therefore, when the issue is which of two or more possible meanings is to be given to a contractual provision it is not permissible to look at actual intentions, aspirations, or expectations of the parties before or at the time of the contract, except in so far as they are expressed in the contract but to look at only the objective framework of facts within which the contract came into existence, and to the parties presumed intentions in that setting: per Mason J in Construction Pty Ltd v. State Rail Authority (New South Wales) (1981 - 82) 149 CLR 337 at p 352. Should a consideration of the whole terms of this Agreement expose an ambiguity in the construction of cl 6(9) then resort may be made to extrinsic material and in certain circumstances any trade custom usage.” 18 I would add that it is also well settled that in the case of industrial instruments such as awards and in particular agreements, then a liberal approach to interpretation should be applied, and an adherence to an overly literal interpretation of relevant provisions is to be avoided. This is commonly referred to as the rule of “generous construction” of such instruments: Geo A Bond & Co (Liq) v McKenzie (1929) 28 AR 499; Aitco v Federated Liquor & Allied Industries Employees Union 1988 AILR 382. A particular difficulty arises where parties seek to refer to their intentions in relation to the making of an award or the reaching of an industrial agreement. The dangers of referring to such matters have been referred to often by courts and tribunals when considering matters of interpretation: Hume Pipes case 11 SAIR 1; Printing & Kindred Industries Union and Ors v Davies Bros Ltd (1986) 18 IR 444. Unless there is clear evidence of a common intention, in my view, an individual parties’ subjective intention cannot be taken into account in the interpretation of a provision of an award or agreement. It must be assumed that parties’ common intentions, after a period of negotiation, are to be discerned from the language used in the document itself, and not any earlier expression of view. The Clause 19 Clause 12 of the Agreement deals with superannuation and it provides as follows: (1) The employer will pay an amount equivalent to 8% of each employee’s annualised salary into an agreed complying superannuation fund in the period to the 30 June 2002 and from then the amount will increase to 9% of employee’s annualised salary. (2) The employer’s superannuation contribution in accordance with (1) hereof shall not fall below that prescribed by statute. (3) In addition to the contribution under (1) hereof the employer shall make payments to the Coal Industry Superannuation Fund. (4) Subject to statutory limits, an employee may elect to sacrifice a portion of his/her salary to additional superannuation. (5) An employee may elect to have any annual sick leave entitlement paid into his/her superannuation. (6) The agreed complying funds include: • Coal Industry Superannuation Fun • AMP Custom Super Fund • Westscheme (7) Defined Benefits Fund (a) The employer contributes a prescribed annual amount of (which at he commencement of this Agreement was $3,000.00) to this Fund on behalf of each employee. (b) As the Fund has a defined benefit structure, this amount is not credited to the employee’s account but is part of the pool of assets from which the Fund meets its benefit obligations and costs of member insurances, statutory fees and administration expenses. (c) The employer contribution arising under (a) hereof results from a funding formula which requires the employer to contribute an amount in the range of 7% to 10% of a benchmark salary ($33,740.00 per annum as at the date this Agreement commenced). (d) The amount paid by the employer shall reflect the relevant statutory requirements. (e) The contribution has a notional value of 6% of the benchmark salary for SGC purposes. (8) The combined contributions amount to an effective employer superannuation contribution of 14% of salary to 30 June 2002 and 15% from July 2002 compared with the SGC requirement for 8% for the current and next financial years and 9% subsequently. 20 The particular provision most at issue in these proceedings is cl 12(8). Counsel for the applicant submitted that the inclusion of cl 12 (8), which did not appear in a previous agreement between the parties dealing with superannuation, is significant. Her submission was that the plain language of cl 12(8) requires the employer to pay a total of 15 per cent of an employee’s annualised salary into relevant complying superannuation funds. It was counsel’s submission that this was effected by the employer paying the defined sum into the Coal Industry Superannuation Fund (“CISF”) and an amount in excess of nine per cent into a relevant complying fund under the Commonwealth superannuation guarantee scheme legislation. 21 Mr Martin made a number of submissions about the terms of cl 12. He submitted that the clause needed to be considered in the context of the relevant State and Commonwealth superannuation legislation specified and how that legislation operated. The clause refers to two components of an employee’s superannuation entitlements. The first component is the entitlement arising under the Commonwealth superannuation guarantee scheme presently prescribing a contribution of nine per cent of an employee’s salary. The second component of the entitlement is that arising under the CISF, which fund is a defined benefit fund. 22 In particular, counsel submitted that the two components are calculated in fundamentally different ways and therefore each component is not reconcilable one to the other. The effect of this submission was that the reference in cl 12(7)(e) to 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 199 the “benchmark salary” is nonsensical because the CISF reference to “benchmark salary” is for the purposes of determining a prescribed annual amount of contributions by employers to all employees in the defined benefit fund. The submission was that the reference to “benchmark salary” has no relevance for superannuation guarantee scheme purposes. Rather, the sub clause should be read as simply referring to a notional value of six per cent for SGC purposes, because this is the effect of a benefit certificate issued under the Commonwealth superannuation guarantee scheme, which enables an employer to offset against any obligations it has under the SGC scheme, superannuation contributions made on behalf of employees arising from other obligations. 23 Mr Martin further submitted that this conceptual error was perpetuated in cl 12(8) when reference is made to “the combined contributions”. This is so, as the submission went, because the second component, that being the CISF contribution component, bears no reference to “salary” or “annualised salary” of an employee, as it is derived from a formula involving a percentage of a predetermined “benchmark salary”, which itself, bears no relation to actual salaries received by employees. 24 Therefore, the respondent submitted that cl 12(8) can contain no positive performance obligations on the respondent and does not have the effect contended by the applicant. Consideration 25 There was evidence adduced on behalf of both the applicant and the respondent in this matter. A witness statement was filed by Mr Gary Wood the secretary of the applicant. His evidence went largely to the history of the making of the Agreement and negotiations about cl 12 in particular. Similarly, for the respondent, evidence was adduced through Mr Robert Banks at the material time the manager employee relations for the respondent. Additionally, there was a witness statement from Mr Geoffrey Kidd an accountant. This evidence, tendered by consent of the parties, went to an explanation of the Commonwealth superannuation guarantee scheme and aspects of the CISF. 26 Apart from the helpful evidence adduced through Mr Kidd, for the following reasons, in reaching the conclusions that I do, I have not needed to consider the oral and documentary evidence adduced in these proceedings, save for some limited reference which I deal with below. 27 In my view, the terms of cl 12 of the Agreement contains provisions some of which are prescriptive and some of which are descriptive. The prescriptive provisions are those that impose obligations on the respondent and confer entitlements on its employees, members of the applicant. By cl 12(1), the respondent is obliged to contribute the minimum amount required by the Commonwealth superannuation guarantee scheme effective up to and beyond 30 June 2002. Those rates of contribution are eight per cent and nine per cent respectively. Whilst there are few definitions used in the Agreement generally, and cl 12 regrettably, is not particularly well drafted, the reference to “annualised salary” is in my view, taken to be a reference to the salaries appearing in Schedule A of the Agreement. Those salaries are specified to be effective from 3 June 2001, thereafter adjusted annually according to movements in average weekly ordinary time earnings. 28 Furthermore, by cl 12(3), it is clear that in addition to the contributions under the SGC scheme, the respondent is required to make payments in accordance with the CISF. From these provisions combined, it is the case that the respondent is not able to offset any of the contributions that it makes to the CISF on behalf of members, as against any of its obligations under the SGC scheme. Thus far, in my view, on its ordinary and natural meaning, cl 12 of the Agreement requires the employer to make two contributions, one contribution in accordance with the SGC scheme, and a further and additional contribution, into the CISF in accordance with the applicable legislation covering governing that fund. 29 Cl 12(7) sets out further provisions under the heading “Defined Benefits Fund”. Whilst it does not say so, it was common ground that the CISF is the defined benefits fund referred to. In my view, the terms of cl 12(7)(a)-(c) are descriptive in nature, as they set out the nature of the defined benefits fund and the contributions made by the respondent, for the benefit of the reader of the Agreement. Then, perhaps unnecessarily, as with cl 12(2), cl 12(7)(d), provides that the employer is required to contribute amounts in accordance with the “relevant statutory requirements.” It was common ground that the relevant statutory requirements are the CIS Act and the Coal Industry Superannuation Regulations 1990 (“the CIS Regulations”). Being a defined benefit fund, as opposed to an accumulation fund, employers contribute a prescribed amount into the fund, on behalf of each employee, which then forms a pool of funds generally, from which benefits under the fund are payable. Under this arrangement, members of the fund do not accumulate superannuation contributions, based upon a percentage of their salaries, as is the case with an accumulation fund under the SGC scheme. This is the critical difference between the first and second obligations contained in cl 12. 30 Under both the CIS Act and the CIS Regulations, a funding formula is used to determine employer contributions for the CISF. That contribution, depends upon advice from an actuary to the board of the CISF, and ranges from seven per cent to 10 per cent of a benchmark salary, which is itself prescribed by the CIS Regulations. The benchmark salary is adjusted, either by the application of average weekly ordinary time earnings or on the recommendation of the actuary, by the board of the CISF. It was common ground that in recent years, the contribution rate has been set at eight and a half per cent of the relevant benchmark salary. 31 Importantly, by cl 12(7)(e), reference is made to “the contribution”, having a “notional value” of six per cent of the “benchmark salary” for SGC purposes. This subclause can only refer to the employer’s contribution under the CISF, when read in the context of cl 12(7) as a whole. Reference in it to “notional value”, and inclusion of the words “for SGC purposes”, is consistent with the relevant provisions of the SGC scheme, referred to above, which enable an employer to offset any payments made on behalf of employees in respect of superannuation, against their SGC obligations. This notional contribution is determined by a benefit certificate issued pursuant to s 10 of the Superannuation Guarantee (Administration) Act 1992 (Cth). A copy of such a certificate dated 28 June 2001, for the period 1 July 2000 to 30 June 2005, was annexure RB5 to Mr Banks’ witness statement. This benefit certificate prescribes that the notional value for SGC purposes is “6 % of the Benchmark Salary”. 32 By s 22 of the Superannuation Guarantee (Administration) Act 1992 (Cth), (“the SGC Act”) the charge percentage that is levied against an employer under that legislation, can be reduced where the employer makes a contribution to a defined benefit superannuation scheme. The level of reduction is that specified in any benefit certificate issued for this purpose, as in the example referred to above. 33 Whilst the use of “benchmark salary” in both the benefit certificate and in cl 12(7)(e) of the Agreement is somewhat confusing, given that SGC contributions are not calculable by reference to any such concept, the effect of s 22 of the SGC is clear enough. What cl 12(7)(e) of the Agreement, when read in accordance with its plain meaning and with s 22 of the SGC Act means, is that if the respondent did offset its contributions to the CISF against its SGC obligations, then it could do so to the equivalent of only six per cent, with a three per cent minimum obligation remaining. 200 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. 34 When read in this way, it seems to me that cl 12(8) is to be construed as describing the “effective” rate of combined contributions of both the SGC and CISF components of an employee’s superannuation entitlements. The use of the words “combined contributions” and “effective”, are, in my view, intended to convey to the reader of the Agreement that it is the combined amounts set out cl 12(1) and cl 12(7)(e) of the Agreement, when expressed in SGC contribution terms, that amount to contributions of 14% and 15% respectively. What the subclause appears to attempt to do, although somewhat less than elegantly, is to compare the rate of contribution under the SGC scheme only with that including the CISF contribution, expressed as a total in SGC terms, by adding the notional rate in cl 12(7)(e) to the actual rate of contribution in cl 12(1) for SGC purposes. This results from reading the terms of cl 12(1), (7) and (8) together. 35 From the structure of the clause as a whole, read in context, I am not persuaded that cl 12(8) of itself, confers an entitlement to superannuation contributions in the actual amounts of 14% and 15% of salary. The language used in the subclause does not admit of that conclusion. The entitlement under the clause as a whole, in terms of prescriptive provisions, clearly springs from both cl’s 12(1) and (7) when read together, in my opinion. 36 Of course, a corollary of this construction of cl 12 is that given under the CISF the level of employer contribution is variable between seven and 10 per cent of the benchmark salary, if the level of the contribution is increased as a result of a recommendation by the actuary, which would presumably also increase the level of the notional value for SGC purposes, this would in turn increase the total “effective” rate of employer contributions. 37 Some support for this construction can be found in annexure GW2-3 to Mr Wood’s witness statement, to the extent that it can be referred to. That annexure contains an earlier negotiation draft of cl 12 of the Agreement. Not insignificantly, in the proposed cl 8.2.7 reference is made to the combined contributions but also included are the words “at this point in time”. The inclusion of these words tends to support the proposition that the combined contributions were not intended to be fixed and indeed, as I have observed above, may well increase over time. 38 The Tribunal orders accordingly. ORDER Having heard Mr K Martin of Queens Counsel on behalf of the applicant and Ms J Boots of counsel on behalf of the respondent the Tribunal hereby declares: THAT the true interpretation of clause 12 of the Griffin Coal (Production) Enterprise Agreement 2001 - 2004 is that the combined employer contributions to superannuation for employees is not 15 per cent of salary from July 2002. (Sgd.) S J KENNER, Chairman, [L.S.] Western Australian Coal Industry Tribunal. COAL INDUSTRY TRIBUNAL—DISPUTES—Matters Referred— BEFORE THE WESTERN AUSTRALIAN COAL INDUSTRY TRIBUNAL Held at Perth on 7 and 8 March 2005 Application No. 5 of 2005 Between: Wesfarmers Premier Coal Limited, Applicant and The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers, Western Australian Branch, Respondent In the matter of: An Application for a Conference Pursuant to s 12 of the Act Order WHEREAS the applicant made an application for an urgent conference under s 12 of the Coal Industry Tribunal of Western Australia Act 1992 (“the Act”) on 6 March 2005; AND WHEREAS at the conference the Chairman of the Tribunal (“the Chairman”) was informed of a dispute between the applicant and the respondent in relation to the taking of industrial action by employees of the applicant, members or eligible to be members of the respondent in the form of strike action commencing 1 March 2005 and the existence of protest or picket lines established at two locations en route to the applicant’s mining operations in Collie Western Australia; AND WHEREAS at the conference the Chairman was informed of the circumstances leading to the present industrial action as summarised in the application to the Tribunal as attached to this order; AND WHEREAS the respondent disputed a number of allegations of fact as to whether there had been by any improper or unlawful conduct by persons associated with the industrial action; AND WHEREAS the applicant informed the Chairman that the industrial action presently being engaged in by the maintenance employees and others is having a substantial effect upon its business and is causing a serious deterioration of relations between the applicant and the Coal Miners Industrial Union of Workers (“CMU”) in relation to mining operations employees who have ceased to attend for work because of the presence of protest or picket lines at the various locations; AND WHEREAS the Chairman was informed as is aware that the action taken by the respondent and employees of the applicant members of or eligible to be members of the respondent is in connection with matters in dispute between the applicant and the respondent as to terms and conditions of employment to apply to maintenance employees which dispute has been referred to the 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 201 Tribunal for arbitration commencing on 21 March 2005 at Collie for the purposes of hearing and determining the issues in dispute between the parties; AND WHEREAS in light of the deterioration in industrial relations at the applicant’s operations as a consequence of the industrial action and or other action engaged in by the respondent and employees of the applicant members of or eligible to be members of the respondent the applicant has sought orders from the Tribunal for such industrial action and protest or picket lines to cease to ensure that there is no further disruption to the operations of the applicant; AND WHEREAS the applicant submitted that the Tribunal has jurisdiction and power to make the orders sought on a variety of bases as set out in its outline of submissions to the Tribunal dated 8 March 2005; AND WHEREAS the respondent has submitted that the industrial action engaged in by maintenance employees of the applicant is protected industrial action under the Workplace Relations Act 1996 (Cth) (“WRA”) insofar as that action is undertaken by the federally registered organisation and its members; AND WHEREAS the Chairman having considered the issues, heard from the parties both in the herein application and in respect of application 4 of 2005 between the applicant and the CMU is satisfied that there has been a significant deterioration in industrial relations in the coal mining industry in this State between the applicant and the respondent and employees of the applicant members of or eligible to be members of the respondent and that the present circumstances are contributing to a substantial deterioration in relations between the applicant and the CMU and its members; AND WHEREAS in any event the Chairman has formed the view that protests, gatherings and/or picketing conduct is not industrial action for the purposes of s 4 of the WRA and therefore is not protected industrial action for the purposes of Division 8 of Part VID of the WRA; NOW THEREFORE having heard Mr G Bartlett of counsel on behalf of the applicant and Mr L Edmonds on behalf of the respondent, the Chairman of the Tribunal, pursuant to the powers conferred under the Act, does hereby order - (1) THAT the respondent, its officers, officials, agents and members and those employees of the applicant eligible to be members forthwith remove any protest or picket line in or about the premises of the applicant including but not limited to any such protest or picket lines in or about the locations as set out in the application attached to this order and they not participate in any protest or picket line affecting in any way the access to and egress from the applicant's mining operations. (2) THAT the respondent and each of its officials shall take all necessary steps to ensure that conduct ceases in accordance with the terms of paragraph (1) of this order including but without limiting the generality of this obligation to: (a) call a meeting of members of the respondent union at the earliest opportunity or otherwise to bring to the attention of the affected persons the terms of this order; (b) advise the employees of the terms of this order; and (c) counsel the employees to act in accordance with the terms of paragraph (1) of this order and to refrain from engaging in any further action of the kind specified in par (1) of his order. (3) THAT otherwise the application be adjourned to a time and date to be fixed. (Sgd.) S J KENNER, Chairman, [L.S.] Western Australian Coal Industry Tribunal. BEFORE THE WESTERN AUSTRALIAN COAL INDUSTRY TRIBUNAL Held at Collie on 7 and 8 April 2005 Application No. 2 of 2005 Between: Griffin Coal Mining Company Pty Ltd, Applicant and Coal Miners Industrial Union of WA, Respondent In the matter of: Disciplinary action against Mr Gregory Wheeler Decision of the Tribunal 1 THE CHAIRMAN: The applicant has referred to the Tribunal a dispute between it and the respondent concerning proposed disciplinary action to be taken against a member of the respondent, Mr Gregory Wheeler. A conference held pursuant to s 12 of the Coal Industry Tribunal of Western Australia Act 1992 (“the Act”) did not resolve the issue in dispute between the parties and it was referred for hearing and determination by the Tribunal. 2 The employer and employee members of the Tribunal being evenly divided in this matter, pursuant to s 14(4) of the Act, the decision is that of the Chairman. 3 The essence of the dispute is this. The applicant, following allegations against Mr Wheeler, that he used abusive language towards another employee, proposed to issue Mr Wheeler with a final warning. This followed an investigation by the applicant into the relevant events. The respondent, representing Mr Wheeler, put the issue in dispute in accordance with cl 23(1) of the Griffin Coal (Production) Enterprise Agreement 2001 - 2004 (“the Agreement”). The grievance procedure provides that if a matter is unresolved, it having been progressed through that procedure, either party to the dispute may refer the matter to the Tribunal. In this case, no further steps have been taken by the applicant, pending the hearing and determination of the matter by the Tribunal. 202 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. 4 Whilst the issues in dispute are relatively narrow, the parties adduced a considerable body of evidence, from which it is readily apparent that on the central factual issues in contention, the parties are diametrically opposed. Contentions of the Parties 5 Counsel for the applicant, Mr Richardson, submitted that on or about 3 February 2005, at the applicant's administration building car park at the Ewington mine site, Mr Wheeler engaged in abusive and threatening conduct towards another employee Ms Gilbert, the applicant's senior health and safety adviser. Counsel submitted that following an investigation after the relevant events, the applicant had formed the view, and held an honest and reasonable belief, that the conduct complained of actually occurred. Having come to this view, and in the light of previous incidents involving Mr Wheeler and his use of inappropriate language, it was considered appropriate on this occasion, to issue him a final written warning. It was Mr Richardson's submission, that the applicant had both a right and duty to act as it did, in the exercise properly, of its managerial prerogative, at the time that it took the action that it proposed. 6 Counsel for the respondent, Mr Schapper, submitted that the factual circumstances of the alleged incident were sufficiently unclear, so as to not enable the applicant to come to any final judgement as to whether the conduct complained of against Mr Wheeler occurred or not. In the alternative, if there was sufficient evidence to support the issuance of a penalty against Mr Wheeler, then on all of the facts, a final written warning is too severe. 7 The parties were granted leave to file and serve any supplementary written submissions upon which they intended to rely. The applicant filed written submissions on 22 April 2005. The Evidence 8 As I have already noted, there was a substantial body of evidence adduced on behalf of both the applicant and the respondent in this matter. It is fair to observe however, that there were three central witnesses called in respect of the incident. These were Mr Smoker, the applicant's safety adviser and formerly a mine worker employee of long standing; Ms Gilbert, and the alleged perpetrator, Mr Wheeler, also a mine worker employee of the applicant of long standing. Additionally called on behalf of the applicant, was Mr Brad Burrows, the applicant's manager of mining operations; Mr Green, the employee relations manager and Mr Rodgers the applicant's general manager operations. A number of miners were called on behalf of the respondent who were, to various degrees, witnesses to the relevant events. What follows is a summary of the testimony given by the witnesses. 9 Mr Smoker has been employed by the applicant for about 26 years mostly as a mine employee and as a member of the respondent. He recently took on the role of safety adviser working with Ms Gilbert. Mr Smoker testified in relation to the events which occurred in the Ewington administration building car park on 3 February 2005. He said that as usual, he arrived with Ms Gilbert in Ms Gilbert's company vehicle at the car park between about 6.25am and 6.30am that morning. They parked in their usual bay. Copies of photographs of the scene were tendered as exhibits A1 and A3. Having got out of the passenger seat of the vehicle and retrieved some papers from the back seat, and moving to the driver side of the vehicle, Mr Smoker, who at that point had his back turned to the administration building, testified that he heard words to the effect “Get your f... car out of the f...ing car park”. Mr Smoker said he turned around to look towards the administration building and saw Mr Wheeler walking along the pathway which runs along side the building on the edge of the car park. Mr Smoker, whilst acknowledging this was a busy time at the shift changeover, and it was likely there would be a number of other persons in the area, testified he did not see anyone else at this time, and Mr Wheeler was walking in the direction of his vehicle and got into it. Mr Smoker then went over to Mr Wheeler's vehicle but as he was doing so he testified he heard what he described as “some broken discussion... about the vehicle in the car park.” Mr Smoker could not say who he heard at that time. 10 When he got to Mr Wheeler's vehicle, Mr Smoker said he told Mr Wheeler that he and Ms Gilbert had permission to park in the car park from Mr Burrows and they had been through this before. Mr Smoker testified that as Mr Wheeler was about to get into his vehicle, he said words to the effect “I don't want to hear your f... excuses. Just get the f... car out of the car park”. It was at about this point, that Ms Gilbert according to Mr Smoker was present at the vehicle beside Mr Smoker. He testified that Ms Gilbert then told Mr Wheeler words to the effect that they'd been through this before “the other day” and permission had been obtained from Mr Burrows to park in the car park. Mr Smoker testified that Mr Wheeler in response to this said words to the effect “I'm not interested in your get f... excuses. Get the car out of the car park. If you don't get the car out, the next time you park in it I'll call a stop work meeting and have you f... black-listed.” Mr Smoker said he was very close to Mr Wheeler when this was said and Mr Wheeler was angry. 11 Ms Gilbert then left and went towards the administration building. Mr Smoker said he remained at Mr Wheeler's vehicle and again said to him that they had been through this issue before and they had permission to park in the administration car park. Mr Wheeler was alleged to have said once again words to the effect “I'm not interested in your f... excuses.” Mr Smoker testified he recollected the vehicle Mr Wheeler was driving was a sedan type vehicle, and he had a passenger with whom he then could not identify. Mr Smoker said that Mr Wheeler then somewhat quickly, drove out of the car park. 12 Ms Gilbert has been the applicant’s senior safety adviser since January 2005. At the time of the relevant events, she did not know who Mr Wheeler was, and nor apparently, did he know who she was. Ms Gilbert testified that she arrived in the car park on the morning in question with Mr Smoker as he outlined in his evidence. She testified that as she was stopping the vehicle she could hear a man’s voice yelling out something. The engine of the vehicle was still running and when she switched it off, she could still hear raised voices and yelling, although the vehicle windows were wound fully up. Ms Gilbert got out of her vehicle and waited for Mr Smoker to retrieve his papers. She locked the vehicle and then heard someone yell out words to the effect “f... car out of the car park.” She testified she heard this a couple of times. At this point, she said Mr Smoker was walking in front of her heading towards a vehicle parked outside the bathroom location. Ms Gilbert testified she heard some yelling coming from the vehicle and foul language where words to the effect “get the car out of the f... car park” was said a couple of times. Ms Gilbert testified that the person yelling these words, had his head slightly out of the driver side window of the vehicle. 13 When she got closer to the vehicle, Ms Gilbert said she heard Mr Smoker ask the driver what was the problem. His response was in words to the effect “She's been told to get the f... car out of the f... car park before.” She testified she heard Mr Smoker reply that they had been through this before with Mr Burrows. Ms Gilbert testified she then heard the driver, now known to her as Mr Wheeler respond by saying words to the effect “he didn't care what f... Brad Burrows had to say, they already had an agreement in place.” Ms Gilbert then spoke to Mr Wheeler and said that she had been through this before on the Monday that Mr Burrows had “sorted it out” and that as a clean company car, she was allowed to park in the car park. In response to this, Ms Gilbert testified that Mr Wheeler said words to the effect “there was a f... agreement in place, the next time I came to site and parked in that f... car park, he would call a stop work meeting and have me black-banned”. Ms Gilbert, in a raised voice then, said to Mr Wheeler, “I've already been through this on Monday. I'm not putting up with this.” She then said she turned, left the vehicle and walked towards the administration building. 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 203 14 Following this, Ms Gilbert testified she felt upset by this incident and reported it to Mr Burrows. Mr Rodgers became aware of the incident, and requested Ms Gilbert to make a formal complaint, which she did. The complaint led to an investigation by Mr Burrows, and resulted in the proposed disciplinary action against Mr Wheeler. 15 Ms Gilbert denied she acted in anyway aggressively towards Mr Wheeler when she went over to his vehicle. She denied putting her face close to or inside the window of the vehicle. Ms Gilbert denied that Mr Wheeler spoke to her politely and that she was the aggressor. She did testify that she had no intention of moving her vehicle because the matter had been resolved with Mr Burrows. Ms Gilbert also testified that she went over to Mr Wheeler's vehicle to attempt to defuse the situation as she was a trained paramedic. 16 Mr Burrows has been the applicant's manager of mining operations since about January 2003. He has known Mr Wheeler for some time and at least until relatively recently, had some social contact with Mr Wheeler and his wife through sporting links in the local community. 17 Mr Burrows testified about previous incidents involving Mr Wheeler using abusive language in the workplace or directed to employees of the applicant. Mr Burrows recounted two incidents. The first occurred during negotiations for a replacement enterprise agreement in June 2004. During those negotiations at a meeting, Mr Wheeler used profane language towards Mr Green, a member of the applicant's negotiating team. It was said that Mr Wheeler used words to the effect “You'd have to be a dumb c..., the dumbest c... I know”. Mr Burrows testified that Mr Wheeler was in an angry state when he said these words. The second incident referred to in Mr Burrows' testimony, was a voice mail message left on his mobile telephone in or about September 2004, an audio tape of which was played in evidence. The audio tape refers to Mr Wheeler complaining to Mr Burrows, using profane language, about the failure of Mr Wheeler's son to obtain a permanent mining position at the applicant. This particular incident led to a formal written warning being given to Mr Wheeler about the use of insulting and offensive language. A copy of the letter, dated 24 September 2004, was tendered as a part of a bundle of documents as exhibit A5. In relation to the incident involving Mr Green, the evidence was Mr Wheeler apologised for his behaviour and the apology was accepted. 18 Mr Burrows gave evidence about the policy for parking vehicles in the administration car park. A copy of this policy was tendered as exhibit A6. Mr Burrows testified that the issue arose following complaints by mining employees about dirty mine vehicles being parked in the car park. As a result of discussions between the applicant and the respondent, it was agreed that all mine site vehicles could not use the administration car park, to try and reduce vehicle congestion and the build up of mud in the car park area. The car park policy was posted on the applicant's notice board to all employees. 19 A couple of days prior to the incident on 3 February 2005, Mr Burrows said Ms Gilbert came to see him about parking in the administration car park. She raised the matter because she told him she had received some abuse for parking in that location. Mr Burrows said that he gave Ms Gilbert permission to park in that car park, on the basis that the vehicle is in a clean state. In cross-examination, Mr Burrows agreed that the car park policy was a widely accepted rule and that neither the respondent nor any of the miners had any knowledge of the exception he had made for Ms Gilbert's vehicle, a couple of days prior to the incident in question. 20 Mr Burrows outlined the investigation he undertook in response to Ms Gilbert's complaint, and the documents he prepared in relation thereto, which were tendered as a bundle as exhibit A5. He testified that after speaking to the relevant parties and those who witnessed the events, he came to the conclusion that considerable weight should be placed on Mr Smoker’s statement in preference to Mr Wheeler's denial of the incident. It was for this reason that he recommended to Mr Rodgers that Mr Wheeler be issued with a final written warning. 21 Mr Green gave evidence. He referred to the incident during the enterprise agreement negotiations in June 2004 and confirmed that Mr Wheeler apologised for his behaviour and he accepted the apology. In relation to the voice mail incident, Mr Green testified that following the inquiry held into that matter, he made recommendations that Mr Wheeler's conduct on that occasion constituted gross misconduct however took into account his length of service and prior employment record. After having commitments from Mr Wheeler to apologise to Mr Burrows and to attend anger management sessions, a letter of warning was given to Mr Wheeler instead. Mr Green also outlined in his testimony, his role in the investigation process and the preparation of various documents, subject to the outcome of the applicant's review. 22 In his evidence, Mr Rodgers referred to previous incidents involving Mr Wheeler, and his decision making in relation to the report prepared by Mr Burrows. Mr Rodgers testified that following the voice mail incident with Mr Wheeler, a notice to all employees was published on the notice board, reminding employees that abusive language and threatening behaviour was unacceptable conduct. A copy of this notice was tendered as exhibit A7. Additionally, Mr Rodgers outlined his consideration of Mr Burrows' report into the conduct of Mr Wheeler. He testified that after interviewing Mr Wheeler and speaking with Mr Wood, the Secretary of the respondent, there was no change to his view that a final written warning should be issued to Mr Wheeler. 23 The principal witness called by the respondent was Mr Wheeler. Mr Wheeler has been employed by the applicant as a production operator for about 23 and a half years. He is an official of the respondent Union and has been involved in its affairs for some time. Mr Wheeler referred to the incident with Mr Green and said he accepted he should have not used the words he did and apologised. Mr Wheeler described the circumstances of the voice message he left for Mr Burrows in September 2004. He testified that his son had made a number of applications for permanent employment with the applicant and had been unsuccessful. Mr Wheeler said he had spoken to Mr Burrows on a number of occasions about this and was led to believe that it was likely that his son would be put on in the next intake. The next he heard of the matter, was a telephone call from Mr Curran of the respondent to advise him that his son had not been offered a position. Mr Wheeler testified he became very upset and emotional at this stage, and it was in that context that he left the message that he did. Mr Wheeler said he was upset because he had spoken extensively to Mr Burrows about this matter and felt aggrieved that Mr Burrows did not notify him personally that son had not been successful, given that they were friends and had socialised on a number of occasions. Mr Wheeler said he also at about that time was emotional from the death of his father, and was upset that no one had represented the applicant at his father’s funeral, when his father had been employed by the applicant for many years. Mr Wheeler said that he felt victimised by the applicant's conduct. 24 As to the events of 3 February, Mr Wheeler said he had just returned from an overseas trip the weekend before. He was leaving the administration building area and walking to his car after finishing work from the previous night shift. He testified that as he was putting his work bag in the rear of his vehicle, he saw Mr Smoker walking around from the rear of Ms Gilbert’s vehicle. He said that he called out to him asked what he was doing parking there. Mr Wheeler testified that Mr Smoker then gestured with his hands pointing to Ms Gilbert, a gesture Mr Wheeler said he did not then understand. Mr Wheeler testified he then got into his car and heard someone yelling words to the effect “Who the hell do you think you are?”. He said that after hearing this, a woman, whom he then did not know, walked over to his car and put her head in the driver's side window and as he described it, “gave him a serve.” According to Mr Wheeler, the woman, now known to be Ms Gilbert, said to him in words to the effect “Brad Burrows said I can park my car here because it's clean and you're not going to stop me and no one else is.” 204 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. In response, Mr Wheeler testified that he said words to the effect “If that's your attitude lady I will call a stop work meeting over this and sort it out.” Mr Wheeler testified that was the end of their exchange and it only took some 30 to 40 seconds. Mr Wheeler denied that he swore at either Mr Smoker or Ms Gilbert. 25 Additionally, Mr Wheeler testified that he became aware about a day or so earlier after night shift, some employees had called out to Ms Gilbert in profane language to get her car out of the car park. Mr Wheeler said he told the persons concerned that they should not have done that as it was against the applicant's policy. As Mr Wheeler understood it, this prior incident had occurred on the previous Tuesday morning. 26 Mr Wheeler admitted that on the morning in question, his son was in the front passenger seat of his vehicle. However, on advice from the respondent, he did not wish to have his son involved in the matter and therefore did not permit him to be interviewed by the applicant during the investigation. Mr Wheeler also testified that prior to the morning of 3 February he had no knowledge of Mr Burrows giving Ms Gilbert permission to park in the administration car park, contrary to the agreement in place with the respondent, which Mr Wheeler was involved in negotiating. 27 There were a number of other witnesses called by the respondent who are miners employed by the applicant and were in or about the area on the morning of the incident. The first witness called was Mr Kenyon who has been employed as a miner for over 30 years. Mr Kenyon testified that he was in the Ewington car park on the morning of 3 February and also on the previous Tuesday. He testified he was in the car park that previous morning and observed a commotion amongst some miners about a mine vehicle being parked in the car park. Mr Kenyon identified it was Ms Gilbert’s vehicle and there was some discussion about it between him and other employees, on the basis that it shouldn't be there. 28 Mr Kenyon was also in the car park on the morning in question. He testified he drove his vehicle close to where Mr Wheeler's vehicle was parked. He saw Mr Wheeler and Mr Smoker talking. Mr Kenyon remained in his vehicle but had the driver's window down and was about a metre or so away. When he got close, he realised they were discussing the mine vehicle being parked in the car park. Another employee, Mr Crowe, was with him in his car at that time. 29 According to Mr Kenyon, shortly after parking close to Mr Wheeler's vehicle, he saw Ms Gilbert walking across the car park and diverted towards Mr Wheeler's vehicle. He heard her shout out words to the effect “Who the hell do you think you are?”. He then said she put her head into the driver's side window of Mr Wheeler's vehicle but he did not hear what was discussed. Mr Kenyon testified he did not hear any swearing after that time. 30 Additionally, Mr Kenyon also referred to events when he was leaving the bathhouse before going to his vehicle that morning. He testified that as he was doing so, he heard someone calling out words to the effect “She's done it again. She's put the f... car back in our own f... car park.” Mr Kenyon recognised this person as a Mr Eddie Skwirowski. Mr Kenyon said he thought Mr Skwirowski was also involved in the discussions with Ms Gilbert over her mine vehicle in the car park on the previous Tuesday morning. Mr Kenyon denied in cross-examination that he heard any swearing from Mr Wheeler. He also said that when Ms Gilbert moved towards Mr Wheeler’s vehicle “she moved pretty quick-she got a spurt on to get to the car”. 31 Mr Lerm has been employed by the applicant as a miner since 1974. He testified that on the morning in question he was parked in his vehicle close to Mr Wheeler’s. Mr Lerm said he heard Mr Wheeler call Mr Smoker over to see him at his car. He testified that he saw Mr Smoker gesture by a hand movement. He did not hear what was discussed between Mr Wheeler and Mr Smoker but saw Mr Smoker beckon Ms Gilbert over to where he was. Mr Lerm testified that he saw and heard Ms Gilbert “go ballistic” at Mr Wheeler, as he described it, who was then sitting in his vehicle. Both Mr Smoker and Ms Gilbert then walked away. Other than this, Mr Lerm did not hear much and he said he did not hear any foul language being used. 32 Mr Simmonds has also been a mine worker employed by the applicant since 1974. Mr Simmonds has a difficulty with his hearing but testified he is able to hear shouting. On the day in question, he was a passenger in Mr Lerm’s car, parked next to Mr Wheeler's vehicle. He testified he saw Mr Smoker and Ms Gilbert drive into the car park in Ms Gilbert's vehicle. He saw Mr Smoker go over to Mr Wheeler's car and observed them talking. He then saw Ms Gilbert go over to Mr Wheeler's car and in his words she “stuck her head in the window.” Mr Simmonds said he heard little and definitely no shouting. 33 Mr Crowe has being employed by the applicant as a miner for 23 years. He was also in the car park on the morning in question in Mr Kenyon's vehicle. He described how he was putting his bag in the back of Mr Kenyon's vehicle and when he saw Ms Gilbert's vehicle come into the car park and stop. He saw both Mr Smoker and Ms Gilbert, who he then did not know, get out of the vehicle. Mr Crowe testified that he then heard “a bit of a commotion” with some “yelling and talking and carrying on.” He said he did not take much notice of this at the time. Once he got into Mr Kenyon's vehicle, he could see Mr Smoker standing next to Mr Wheeler's vehicle at the driver’s side window and he was talking with him. According to Mr Crowe, at about that point, he saw Ms Gilbert “come storming across the car park towards Mr Wheeler's car.” He described Ms Gilbert's movements as “marching hurriedly across, not walking at a normal pace.” As he was moving forward in Mr Kenyon's vehicle, Mr Crowe testified he heard Ms Gilbert say words to the effect “who the hell do you think you are?”. He then heard some further discussion including Mr Wheeler saying words to the effect “if you want to carry this further, we'll have a stop work meeting now to sort it all out.” Mr Crowe testified he did not hear foul language or raised voices at this point. Mr Crowe did say however, when he heard the earlier commotion, that some language was used at that time. 34 The final witness called by the respondent was Mr Corey Wheeler, Mr Wheeler's son. He was in the passenger seat of Mr Wheeler's vehicle on the morning in question. Whilst he was speaking to Mr Lerm through the passenger window, he heard some discussion between his father and Mr Smoker, who was standing at the driver’s side window. Mr Wheeler then said he saw Ms Gilbert come over to the driver side window and said words to the effect “who the heck do you think you are?”. He then said his father referred to having a stop work meeting while Brad Burrows was there to sort the matter out. Mr Wheeler denied there was any swearing used in these conversations. Consideration 35 Before considering findings the Tribunal should make on the evidence, an issue arose as to the approach the Tribunal should adopt in dealing with this matter. The applicant submitted the approach should be the same as that adopted in considering whether a dismissal for misconduct is unfair, that is whether the applicant held an honest and reasonable belief that the relevant events occurred: Bi Lo Ltd v Hooper (1992) 53 IR 224. This was disputed by the respondent and counsel submitted the approach should simply be whether on the facts the conduct justifies the issuance of a final written warning. 36 In my view the Tribunal is required to determine for itself on the evidence, whether the course of action proposed by the applicant is justified in all of the circumstances. That is, whether the applicant is justified in continuing with the course of action proposed. I do not consider the approach in Bi Lo to be the appropriate test in a matter such as this. That approach is adopted in the specific case of determining, ex post facto, whether a dismissal satisfies a statutory test of unfairness in circumstances where an evidentiary onus falls on the employer to establish it had good cause to dismiss the employee in the first instance. In such cases the overall persuasive burden still falls on the former employee to establish the dismissal was harsh, oppressive or unfair. There is no such evidentiary burden on the employer in the matter before the Tribunal in this case. 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 205 37 The events in question on 3 February 2005 occurred in the context of an agreed car park policy at the Ewington mine formulated in April 2004. That policy was that mine vehicles would not use the administration car park. The policy arose from complaints about congestion and dirty vehicles, and lead to an agreement between the applicant and the respondent in the terms of the written policy posted on the applicant's notice board. 38 On the evidence, little appears to have been controversial about the policy until the week of 3 February 2005, when Ms Gilbert, a new employee, drove her mine vehicle in the company of Mr Smoker, into the Ewington administration car park. It was apparent on the evidence at that time, Ms Gilbert was not aware of the policy. I am satisfied and I find that on either the Monday or Tuesday morning of that week, Ms Gilbert was on the receiving end of some abuse as a consequence of her parking in the Ewington administration car park, contrary to the policy. I am satisfied on all of the evidence, that the question of car parking was a sensitive issue. On the evidence, I find that Ms Gilbert then went to see Mr Burrows to discuss the matter, and Mr Burrows granted Ms Gilbert an oral exemption from the policy, to permit her to park her mine vehicle in the Ewington administration car park, as long as her vehicle was in a clean condition. However, I am also satisfied and I find, that nobody was told about this and in particular, no one told any representative of the respondent with whom the policy was agreed, about the exemption so granted. 39 A couple of days later on 3 February, Ms Gilbert arrived once again in her mine vehicle into the Ewington administration car park and was seen by employees. I am satisfied that at least initially others saw Ms Gilbert drive into the car park in apparent breach of the policy for a second time in so many days. I am satisfied that there was an initial response by a person or persons who yelled and shouted at Ms Gilbert. One person identified on the evidence was “Eddie”, who had apparently been in the car park on the previous occasion. 40 The incidents of that morning in my view can be separated into two events. The first event was the initial shouting heard by Mr Smoker and Ms Gilbert, confirmed by other witnesses called by the respondent. In particular I refer to the testimony of Mr Crowe when he said he heard a commotion and people yelling. This was consistent with the testimony of Mr Kenyon. Importantly also, neither Mr Smoker nor Ms Gilbert saw who initially was shouting in the car park. I am not satisfied that Mr Smoker's testimony establishes that it was Mr Wheeler who in fact was engaged in the initial event. His evidence was he heard shouting, did not see who it was, but when he turned around he saw Mr Wheeler getting into his vehicle. This sequence of events is not inconsistent with the testimony of other witnesses called, that there were other persons in the area at that time, also shouting at Ms Gilbert, in particular “Eddie”. 41 Therefore, on the evidence, I am not satisfied on balance, that it has been established as to the first event, it was Mr Wheeler who engaged in any abuse of Ms Gilbert. The totality of the evidence is in my view, simply inconclusive on this point. 42 The next event is what occurred at Mr Wheeler's vehicle. Both Ms Gilbert and Mr Smoker testified that Mr Wheeler was angry and abusive in his exchange with them. Ms Gilbert denied she was in anyway agitated or aggressive in her approach to Mr Wheeler. The other witnesses in and around the area, gave various accounts as to what they saw and heard at that stage. Mr Wheeler denied he was angry or abusive at that time. 43 Having considered all of the testimony and observed the witnesses giving their evidence carefully, I consider it more likely than not that Mr Wheeler did use some foul language towards Ms Gilbert and he was upset. I accept that neither Mr Smoker nor Ms Gilbert had anything to gain from pressing the issue when Ms Gilbert was requested to, and did, make a formal complaint about the events of that morning. Certainly Mr Smoker, having been a miner and member of the respondent for many years, if anything had something to lose by testifying against his colleagues. 44 I am also of the view that Mr Wheeler's prior conduct, where he has on occasions in the past, used foul language towards other employees of the applicant, discloses a propensity to behave in that way, which propensity evidence I am able to take into account in my assessment of the matter on this occasion: Mister Figgins v Centrepoint Freeholds Pty Ltd (1981) 36 ALR 23 at 30 - 31; Martin v Osborne (1936) 55 CLR 367 at 375. 45 However, based on all of the evidence adduced in these proceedings, I am not persuaded that Ms Gilbert was entirely innocent in the exchange that took place at Mr Wheeler’s vehicle. In my view, I think it more likely than not on the evidence, that Ms Gilbert was assertive and possibly aggressive, as suggested by the respondent's witnesses, when she went over to see Mr Wheeler. The background and context is important. Only a few days prior, Ms Gilbert had been on the receiving end of some abuse when she drove into the Ewington administration car park, in breach of the policy, which policy she was not then aware of. Ms Gilbert then received permission from the relevant manager to park her vehicle in the car park. Armed with that, Ms Gilbert then proceeds to park in the car park on the morning in question. In so doing, she again is on the receiving end of some language, both initially on arriving in the car park, and then in a conversation with Mr Wheeler. There was also the evidence of Ms Gilbert's demeanour when she diverted from moving towards the foyer area of the administration building, towards Mr Wheeler's vehicle. I accept that she moved swiftly over to Mr Wheeler’s vehicle and this was indicative of her state of mind at this time. 46 I have no doubt on the evidence, that in light of the previous incident, Ms Gilbert was aggrieved by the reception she received on entering the car park that morning, and went over to Mr Wheeler's vehicle to “sort him out” and did speak to him in the terms as identified by the respondent’s witnesses. Ms Gilbert, from her demeanour whilst giving evidence, did not strike me as a person unprepared to stand her ground in the appropriate circumstances. I therefore am satisfied that whilst Mr Wheeler did use profane language in his exchange with Ms Gilbert, there was an element of provocation in the circumstances in question. The exception granted to Ms Gilbert was not communicated to anyone, at least on the evidence, prior to the second incident on the morning of 3 February. I am satisfied on balance also, that Ms Gilbert probably did place her face very close to the passenger side window of Mr Wheeler's vehicle, when she was speaking to him and intended to let him know in no uncertain terms that she had been given permission to park in the car park and that she was not going to move her vehicle for anyone. By going over to Mr Wheeler and in the manner she did, Ms Gilbert only inflamed an already tense situation. 47 In my view, the events of 3 February do need to be considered in the context of the car park policy; the prior incident a few days earlier; the exemption to the policy not communicated; and the additional conduct of Ms Gilbert in dealing with Mr Wheeler. Whilst I do not consider that those issues in any way excuse Mr Wheeler's conduct, they do put the events in a more relevant context in my opinion. 48 As to the investigation that was undertaken by the applicant into these events, there was no apparent reference on the evidence, to any of these matters and as such, they were not apparently taken into account by the applicant in its decision making. In my opinion, the background context and any provocation were both relevant considerations that should be taken into account, in judging the matter overall. 49 In conclusion, in my view there is no sound basis to conclude on balance that the first event which occurred, that being the initial abuse in the car park, was established to be directly attributable to Mr Wheeler. As to the second event at Mr Wheeler's vehicle, there was sufficient evidence to establish an exchange between Mr Wheeler and Ms Gilbert in which Mr Wheeler 206 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. used abusive and profane language. However, as I have already observed, in my view, the events were not a “one way street”. The element of provocation was present and it is relevant to take it into account. 50 On balance, in all of the circumstances of this case and as a matter of equity and good conscience, a final written warning to Mr Wheeler would be too severe. However, his conduct on this occasion cannot go unpunished, having regard to the present circumstances and also Mr Wheeler’s prior conduct. Mr Wheeler should receive a further written warning as to the use of offensive language. Additionally the Tribunal recommends that Mr Wheeler suffer the further penalty of a four shift suspension. It is also recommended by the Tribunal that Ms Gilbert should be counselled as to her behaviour and she should receive a letter along the lines of that dated 9 February 2005, tendered with the bundle of documents as exhibit A5. 51 The Tribunal orders accordingly. BEFORE THE WESTERN AUSTRALIAN COAL INDUSTRY TRIBUNAL Held at Collie on 7 and 8 April 2005 Application No. 2 of 2005 Between: Griffin Coal Mining Company Pty Ltd, Applicant and Coal Miners Industrial Union of WA, Respondent In the matter of: Disciplinary action against Mr Gregory Wheeler Order HAVING heard Mr B Richardson of counsel on behalf of the applicant and Mr D Schapper of counsel on behalf of the respondent, the Tribunal, doth hereby order – THAT Mr Gregory Wheeler receive a written warning as opposed to a final written warning in relation to the events that occurred in the applicant’s Ewington administration car park on or about 3 February 2005. (Sgd.) S J KENNER, Chairman, [L.S.] Western Australian Coal Industry Tribunal. COAL INDUSTRY TRIBUNAL OF WESTERN AUSTRALIA ACT 1992 (Section 12) Griffin Coal Mining Company Pty Ltd - and - The Coal Miners’ Industrial Union of Workers of Western Australia (No. 8 of 2005) Order WHEREAS the applicant made application on 4 August 2005 to the Tribunal for an urgent conference pursuant to s 12 of the Coal Industry Tribunal of Western Australia Act 1992 (“the Act”); AND WHEREAS the Chairman of the Tribunal convened an urgent conference between the parties on 4 August 2005; AND WHEREAS the Chairman was informed at the conference that employees of the applicant members of or eligible to be members of the respondent have failed to attend for rostered shifts commencing at approximately 6.45am 4 August 2005 and continuing on the basis of the disciplinary action being taken against Mr Greg Wheeler in accordance with the Recommendation of the Tribunal dated 5 March 2005 in respect of Application 4 of 2005; NOW THEREFORE the Chairman of the Tribunal, pursuant to the powers vested in him by the Act and having regard for the public interest and the interests of the parties directly involved and to prevent any further deterioration of industrial relations in respect of the matters in question, hereby orders: (1) THAT there be a immediate cessation of industrial action by the respondent and employees of the applicant members of or eligible to be members of the respondent to ensure the resumption of normal work as soon as practicable and that those employees continue to work in accordance with their contracts of employment without any limitation on the performance of work in whatever form. (2) THAT the respondent and each of its officials shall take all necessary steps to ensure that work resumes in accordance with the terms of paragraph (1) of this order including but without limiting the generality of this obligation to: (a) advise the employees of the terms of this order; and (b) counsel the employees to return to work in accordance with the terms of paragraph (1) of this order and to refrain from engaging in any further industrial action in respect of the matters the subject of these proceedings. 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 207 (3) THAT the disciplinary action recommended to be taken against Mr Greg Wheeler in the form of a four shift suspension be stayed pending any further determination or decision of the Tribunal. DATED at Perth 4 August 2005. (Sgd.) S J KENNER, Chairman, [L.S.] Coal Industry Tribunal of Western Australian. COAL INDUSTRY TRIBUNAL OF WESTERN AUSTRALIA ACT 1992 (Section 12) Wesfarmers Premier Coal Ltd - and - The Coal Miners’ Industrial Union of Workers of Western Australia (No. 4 of 2005) Order WHEREAS the applicant made application on 4 March 2005 to the Tribunal for an urgent conference pursuant to s 12 of the Coal Industry Tribunal of Western Australia Act 1992 (“the Act”); AND WHEREAS the Chairman of the Tribunal convened conferences between the parties on 5, 6, 7 and 8 March 2005; AND WHEREAS the Chairman was informed at the conference that employees of the applicant members of or eligible to be members of the respondent have failed to attend for rostered shifts commencing at 6.30pm 4 March 2005 and continuing on the basis of the existence of protest groups formed in support of a dispute between the applicant and the AMWU regarding enterprise negotiations and also in response to the applicant’s engagement of maintenance contractors on site as a consequence of that same dispute; AND WHEREAS on 5 March 2005 the Chairman issued a recommendation in relation to the dispute recommending a return to work which recommendation has not been complied with; NOW THEREFORE the Chairman of the Tribunal, pursuant to the powers vested in him by the Act and having regard for the public interest and the interests of the parties directly involved and to prevent any further deterioration of industrial relations in respect of the matters in question, hereby orders: (1) THAT there be a cessation of industrial action by the respondent and employees of the applicant members of or eligible to be members of the respondent to ensure the resumption of normal work as soon as practicable after 6.30am 9 March 2005 and that employees continue to work in accordance with their contracts of employment without any limitation on the performance of work in whatever form. (2) THAT the respondent and each of its officials shall take all necessary steps to ensure that work resumes in accordance with the terms of paragraph (1) of this order including but without limiting the generality of this obligation to: (a) advise the employees of the terms of this order; and (b) counsel the employees to return to work in accordance with the terms of paragraph (1) of this order and to refrain from engaging in any further industrial action in respect of the matters the subject of these proceedings. (3) THAT any matters remaining in dispute between the parties be the subject of further conciliation under the Act by the Chairman of the Tribunal on dates to be determined by the Chairman. (4) THAT the parties may on the giving of 24 hours notice to one another apply to the Tribunal to vary, revoke or otherwise set aside the terms of the order. DATED at Perth 8 March 2005. (Sgd.) S J KENNER, Chairman, [L.S.] Coal Industry Tribunal of Western Australian. NOTICES—Union Matters— NOTICE FBM No. 5 of 2005 NOTICE is given of an application by the “Civil Service Association of Western Australia Incorporated” to the Full Bench of the