Dalrymple Bay Coal Terminal Pty Ltd v The Australian Workers' Union of Employees, Queensland and Others [1997] QIRC 79 (1997) 154 QGIG 952

952 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 21 March, 1997 ########################################################## QUEENSLAND INDUSTRIAL RELATIONS COMMISSION lndusrrial RPlations Act 1990 s. 319 notification of dispute Dalrymple Bay Coal Terminal Pty Ltd AND ~e Australian Workers' Union of Employees, Queensland and Others (No D35 ofl997) DALRY:\f PLE BAY COAL TERMINAL PTY LTD BULK HANDLING CERTIFIED AGREEME1'T COMMISSIONER BLOOMFIELD l I March 1997 Dispute - Enterprise Bargaining Outstanding Issues - Long Service Leave - Supplementary hours under Stable Income Plan Parties agreed to accept Commission determination - Supplementary hours should remain at 65 per annum - The taking of long service leave should lie essentially at discretion of management. DECISION This dispute notification first came before the Commission on 14 February 1997 when the Commission chaired a conference of the parties in Brisbane At that time the Commission was told that there were two unresolved items from the enterprise bargaining negotiations at Dalrymple Bay Coal Terminal namely, the taking of long service leave by utilising temporary employees as replacements and the treatment of supplementary hours under the Stahle Income Plan The Commission was informed that the parties had agreed to refer these two matters to the Commission for its assistance with the Commission being asked to hear argument and submissions about the respective issues and then to decide the dispute. The Commission's decision was to be accepted by the parties and the result incorporated into the enterprise bargaining agreement. The Commission agreed to undertake this role with the proceedings to resume in Mackay on Thursday 27 February 1997. In proceedings on that date the Commission spent ove1 two and a-half hours in on-the-record and off-the-record discussions with the parties. During the course of those discussions the Commission was presented with very comprehensive submissions from Messrs Collins, Stannard, McKie and Miller representing various Unions and employees and by Messrs May, Morphctt and Donaldson representing the respondent employer. In order to gain the maximum benefit from rhe proceedings, and to assist in its enquiry into the nature of the issues which lay between the parties and their background, the Commission allowed the discussions to be very free flowing. During the discussions each of the participants was given ample opportunity Lo advocate their views ahoul how the Commission should decide the non-agreed items. At the conclusion of the free-ranging discussions I recorde.d my understanding of the submissions which had been put and asked the parties to indicate their agreement with my summary. All of the parties accepted my encapsulation of their submission5 and the primary aspects of the arguments which were recorded al that time. At the end of the proceedings I indicated that I wished to reserve my decision in order that I might review the transcript, my notes of earlier conferences which I had chaired in previous enterpri,e bargaining negotiations where similar matters had been discussed and argued, and the need to consider and evaluate the arguments and matenal presented. Since my return to Brisbane I have had the opportunity to review my notes of earher conferences, my notes of the conference held in Mackay on 27 February 1997 and the transcript. I now issue my findings in relation to the contested points. Supplementary Hours i.:mder the Stable Income Plan It was put to me that during the course of negotiations about the Stable Income Plan employees were led to believe that there would be no change in the hours that they were required to work as individuals. I was also told that there were a number of employees who were dissatisfied with the hours that they were now working with some employees wishing to work more hours and some of them wishing to work less. It was argued that this flexibility should he provided for in the new agreement subject to the employer being guaranteed that the necessary hours would be covered by the employees a, a group. The employer put to me that whilst flexibility was canvassed during the earlier parts of the original negotiations the point was ultimately reached where the parties had agreed that a common supplementary hours provision was necessary if the arrangement was to work. It was also argued that the requirement for coverage for any individual employee was not great and that if certain employees opted out of the arrangement that would impact adversely upon the remaining (smaller number of) employees who would be available for cover in the event that an employee wa~ unahk to attend for duty. There were of course other arguments presented sometimes very forcefully but the above serves to highlight the major points which were consistently put to me. I have considered this issue mo,;;t carefully and have arrived at the conclusion that the supplementary hours under the Stable Income Plan for production workers should remain unchanged at 65 hours per annum. I have detem1ined that a single supplementary hours quantum should be applied for a number of reasons, including:- • It is fair and equitable that all employees should have equal responsibility for providing coverage. • There is a need for employees to make themselves available for minimum periods in any event to provide coverage for group, unit and safety briefings as well as some staff training. • It will mean that all employees will be available for contact in the event that an employee is unable to attend for duty rather than the burden falling, consistently, on a lesser number of employees. • It is administratively sensible to have a common supplementary hours provision across the workforce. • The requirement to provide 65 hours coverage pe1 annum if required is not unreasonable. Long Service Leave and the Utilisation of Temporary Employees On behalf of the employees it was contended that employees should be able to make application for long service leave by making a request to the employer for such leave by the giving of no less than three months' "notice" It was suggested that the employer should respond to the request within fourteen days. If the response was positive long service leave would have been approved as requested. If the response was in the negative and the employee wished to challenge that rejection the matter should be processro through the grievance and disputes procedure with ultimate access to the Queensland Industrial Relations Commission. It was suggested that temporaries could be used to cover Jong service leave absences and that the onus should rest with the employer lo establish that a rcqueM for long service leave had been validly rejected. On the other hand the respondent employer referred to the discretionary provisions which existed under current industrial instruments and legislation which gave the Company the discretion about whether to use temporaries and whether to approve a long service leave request. In particular, it was put that the issue being pressed by the Unions had only been a problem on one occa,ion. It was made very clear to me during the course of the discussions/suhmi:-.sions that the issue of temporary employment had been a vexed issue at Dalrymple Bay Coal Terminal over the years. The parties had arrived at certain accommodations and these appeared to be working reasonably well, albeit that there were occasional difficulties. An issue had arisen in recent times where an employee was not granted approval to lake long service leave because there would have been more than two people 21 March, 1997 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE absent on his shift. Apart from this I was not referred to any other circumstances where there had been a problem. In deciding this issue I have been most conscious of the fact that the taking of long service leave, and other leave, has generally not been a problem at Dalrymple Bay Coal Terminal because the employees within each shift are. and have been, capable of working the matter out between themselves It appears that there 1s a policy in place that not more than two employees from any one shift can be absent at the one time. This appears, to me, to be quite reasonable. I have decided that, subject to the qualification which I make below, the taking of long service leave should be a matter which lies essentially at the discretion of management. The qualification is thal the enterprise bargaining agreement should record that where an employee has made a request for long service Jea\.e and the employee is of a view that that request has been unreasonably refused the employee should be able to process the matter through the grievance and disputes settling procedure which will provide ultimate access to the Queensland Industrial Relations Commission. By ibis mechanism the existing practices will largely continue viz. employees will be able to agree the taking of leave amungst themselves subject to the final approval of the employer. Where there is some difficulty and that difficulty is not ahle to be resolved locally the parties can turn to the Queensland Industrial Relations Commission for m;sistance. Whilst the proposal advanced on behalf of the employees by Mr Collins had certain merits I have decided not lo adopt it in total but rather to put in place the modified version described above. Mr Collins' version seemed, to me, to be a touch formal and may have led to an artificial expectation by employees that they were able to request leave at a particular time and that it should not be refused. In this sense the burden of proof about refusal would have rested with the employer whereas, under my deterrnination, the employee will have the burden of establishing that the employer's refusal was unreasonable. This more correctly reflects historical and current Jaws and provisions dealing with the granting of long service leave The partie.~ are asked to make the necessary adjustments to the draft enterprise bargaining agreement and to file it within the Commission. I undertake to deal with such agreement expeditiously once it has been filed. A.L BLOOMFIELD. Commissioner Appearances:- Mr B. May. Mr G. Mmphett and Mr R. Donaldson for Dalrymple Bay Coal Terminal Ply Ltd. Mr R. Collim ..md Mr C. Stannard for The Australian Workers' Union of Employees, Queensland. Mr B. Miller for The Electrical Trades Union of Employees of Au~tralia, Queensland Branch and the Automotive, Metals, Engmeering, Printing and Kmdred Industries Industrial Union of Employees, Queensland. Mr M. McKie. a member of the negotiating committee. Operative Date N/ A Decision Dalrymple Bay enterprise bargaining Relea~cd I I March 1997 166525--76 953 -- 1 of 1 --