Doorn-Djil Yoordaning Mining & Construction Pty Ltd

[2014] FWCA 8997

[2014] FWCA 8997

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

Doorn-Djil Yoordaning Mining & Construction Pty Ltd
(AG2014/8192)

DOORN-DJIL YOORDANING MINING AND CONSTRUCTION AGREEMENT 2014

Mining industry
COMMISSIONER WILLIAMS	PERTH, 15 DECEMBER 2014

Application for variation of the Doorn-Djil Yoordaning Mining and Construction Agreement 2014.

[1] This decision concerns an application made by Doorn-Djil Yoordaning Mining & Construction Pty Ltd (the applicant) under section 217 of the Fair Work Act 2009 (the Act) for a variation of the Doorn-Djil Yoordaning Mining and Construction Agreement 2014 (the Agreement) in order to remove an ambiguity or uncertainty in that agreement. The applicant is the employer covered by the Agreement.

[2] The evidence of Mr Batchler for the applicant, which I accept, is to the effect that there are two errors in the Agreement each of which is causing ambiguity and uncertainty.

[3] Firstly the table of positions and applicable annual salaries and hourly rates set out in paragraph 4 of Schedule C-Black Coal Mining Industry Employees of the Agreement (Schedule C) includes hourly rates that are wrong and are up to $6 per hour less than the correct hourly rates.

[4] This error creates ambiguity and uncertainty because these hourly rates are inconsistent with the weekly or fortnightly amounts to be paid calculated using the formula in paragraph 5 of Schedule C. In addition in many clauses throughout the Agreement there are references to the “hourly rate”. How these words are to be interpreted is ambiguous and uncertain because the hourly rates listed in paragraph 4 of Schedule C are less than the hourly amount that results from dividing the applicable annualised salary by the annualised hours worked in that position.

[5] The applicant proposes that the Commission vary the Agreement by increasing the applicable hourly rates in paragraph 4 of Schedule C so that they equate to the hourly rates that would be calculated by dividing the applicable annualised salary by the formula provided for in paragraph 5 of Schedule C and dividing the resulting weekly or fortnightly instalments by the hours worked for these periods.

[6] Secondly the applicant has identified an error in paragraph 16 ii. of Schedule C in that the average hours per week is wrongly specified as 52 when this should be 42 hours for the example of an even time 12 hour day/night roster of seven days on, seven off, seven nights on and seven off. This error creates a further uncertainty or ambiguity regarding the calculation of the applicable annualised salary that would be payable in the future for any amended or changed roster of this pattern.

[7] I am satisfied that each of the errors the applicant has identified does create an ambiguity uncertainty and that the Commission should vary this agreement to remove this.

[8] The Agreement is hereby varied to include the revised hourly rates for paragraph 4 of Schedule C specified in Exhibit A4 which significantly increases each hourly rate in this schedule and which is attached to this decision as Attachment A.

[9] The Agreement is also varied at paragraph 16 ii. of Schedule C to refer to an average of 42 hours per week instead of 52 hours per week.

[10] This variation to the Agreement operates from the date of this decision.

COMMISSIONER

Appearances:

C. McGonigle of Australian Mines and Metals Association for the applicant.

Hearing details:

2014.

Perth:

December 3.

Printed by authority of the Commonwealth Government Printer

<Price code G, AE410499  PR558940>

ATTACHMENT A

POSITION	ANNUAL SALARY	HOURLY RATE
PRODUCTION
Labourer	$107,032.92	$36.63
Truck Operator - Entry / trainee	$107,032.92	$36.63
Truck Operator – Experienced	$110,029.84	$37.66
Truck Operator – Advanced	$113,110.68	$38.71
All Rounder (Truck + 1 Ancillary)	$116,277.77	$39.79
All Rounder (Truck + 2 Ancillary)	$119,533.55	$40.91
All Rounder (Truck + 3 Ancillary)	$122,880.49	$42.05
Loading Tool Operator – Entry/Trainee	$126,321.15	$43.23
Loading Tool Operator – Experienced	$129,858.14	$44.44
Loading Tool Operator – Advanced	$133,494.17	$45.69
BLAST CREW
Labourer	$107,032.92	$36.63
Blast Crew	$110,029.84	$37.66
Shotfirer / Driller	$133,494.17	$45.69
MAINTENANCE
Trades Assistant	$108,808.03	$37.24
Serviceperson	$112,725.12	$38.58
Boilermaker/HD Mechanic – Entry / trainee	$116,783.23	$39.97
Boilermaker/HD Mechanic – Experienced	$120,987.42	$41.41
Boilermaker/HD Mechanic – Advanced	$125,342.97	$42.90
Auto Electrician	$129,855.32	$44.44
Leading Hand Boilermaker/HD Mechanic	$134,530.11	$46.04