Hi all, I thought I might open a discussion thread that may assist some members to understand their employment entitlements, especially the status of their employment contracts, the relationship to underlying awards, EA or National Employment Standard provisions. During this extended period of downsizing and restructuring this area of discussion seems quite topical.
In context to any information I provide, please note it will be general only and not legally definitive. Although I have a Masters Degree in Employment Relations, I am also a committee member for the Colliery Staff Division of Professionals Australia. If you are a member of your union and have a complex issue, I will direct you to your union legal and contract specialist, who will assist you offline. If you are not a member of your union, I will encourage you strongly to join. In the mean time I will end this thread with a topic for discussion, and respond if there is interest.
Topic discussion; Does the Modern Black Coal award automatically ensure historical entitlements for Coal Mine Surveyors (NSW, QLD, WA) like 5 weeks annual leave, three week redundancy payout per year of service and payout of accumulated sick leave, accumulating at 15 days per year?
Of course, if you have another topic you would like to discuss, please drop me a thread.
Kind regards to all,
Justin Smith MER
Committee Member CSD, PA
Last edit: 3 years 4 months ago by Justin Smith. Reason: typo
As an update, yesterday, Yancoal issued an ultimatum to its staff including the surveying staff at all its Hunter Valley Mines to accept a new contract of employment. I have attached a reply from Kylie Rooke, senior Industrial Officer for the Colliery Staff Division of Professionals Australia.
We are aware that Yancoal has today issued new contracts to most Staff across the Yancoal operations.
We are aware that in some circumstances these contracts significantly alter the current conditions for Staff, and that Staff have been given only a short window to accept the contracts.
Our advice is that you do not sign the contracts at this time, until you have had an opportunity to receive appropriate advice. We will be setting up meetings for Staff next week and will be in touch.
In the meantime for advice, please phone me on 0487 545 557, or Belinda Giblin on 0411 654 259.
Senior Industrial Officer/Organiser
Collieries’ Staff and Officials Association Lvl 1, 491 Kent Street Sydney NSW 2000.
P: 02 9269 0688
F: 02 9269 0611[/i][/b]
The Colliery Staff Division is currently working hard to ascertain the risk to Staff, their rights and entitlements, following the announcement by Yancoal to move all staff onto new contracts and for their coal assets to be offloaded to a new management company YMS.
At this time, it is noted, that all staff, union members and ironically, non union members are looking to the Colliery Staff Division for support and clarity of information to address real concerns by staff who have been told if they don't sign new contracts, they won't have a job.
More than ever, it is important to be a member of your union, who will support you no matter what. More than ever, at times like these, it is noted that the individual is most vulnerable and the collective more influential in determining fairer outcomes.
If you are not a member of Colliery Staff, but have been attending information sessions, or asking for advice or hoping 'they' will do something to help, I urge you to take that next very logical step, and join your union and support them as they support you.
Yesterday, a well attended meeting of Mine surveying and other staff from the Yancoal Eastern group of coal mines met at a Cessnock Leagues club to be updated by your Colliery Staff Union on the progress of discussions with Yancoal. A resolution was unanimously passed by all present to peruse an intervention from the Fair Work Commission, to enable the legitimate concerns of staff to be appropriately addressed, within a reasonable time frame, without out the threat or arbitrary dismissal.
This statement below was issued yesterday by Catherine Bolger, Director of The Colliery Staff Division of Professionals Australia
"Yancoal front company strips away Staff conditions
In what is being seen as preparation for lay-offs at three Hunter coal mines, Yancoal has taken the extraordinary step of establishing a front company known as Yancoal Mining Services to avoid Staff future redundancy and accrued future sick leave entitlements.
Yancoal have demanded that 184 Staff at their three Hunter Valley mines sign new contracts with the front company by this Monday 1 February, or face the sack. But the new contracts strip them of much of their existing entitlements to redundancy and accrued future sick leave in their contracts.
The move from Yancoal to strip Sick Leave and Redundancy Entitlements from contracts, comes just months before Yancoal and other major coal companies are pushing to limit retrenchment pay in the Black Coal Award to just 27 weeks. Yancoal’s motives are clear, and if successful, Yancoal’s actions could see long term employees if retrenched out of pocket by tens of thousands of dollars.
It is not fair, or ethical, to set up a new company, transfer employees to the new company and demand they either sign up to reduced conditions or be sacked.
Your Staff Union has lodged a dispute in Fair Work Australia and at press time we are waiting to hear if Yancoal will agree to arbitration.
Your colleagues at Yancoal need your support. Staff need to stand together to ensure that we protect their entitlements. If Yancoal gets away with stripping Staff entitlements, it sends a very bad message to the rest of industry"
Most mine surveyors will be employed under an individual common law contract as opposed to an award based or EA based employment arrangement. For most of us, the concept of a contract is bound in the belief that it is an agreement that cannot lawfully be violated by either party.
Employers have promoted the individual contract as the preferred employment instrument. That said, resent events have shown that employers are willing to use a loophole in employment law to dissolve the agreement between themselves and their staff.
To bypass the integrity of the contract, the parent company creates a 'service' company to be the new employer of the staff, who will then ‘service’ the parent company with the same labor, just like a contracting company would. It then simultaneously ends employment with the old company, whilst offering new employment with the new company, but of course, with new and lessor contracts.
However, if one is employed under an EA, or award based instrument, all rights and entitlements are preserved and transferred to the new employer, intact and unchanged, providing a corresponding position is available in the new company. This is detailed by sections 311 & 312 of the Fair Work Act 2009. Fortuitously for the employer, the Act is silent on the status of an individual contract. At this time, the individual contract, the one instrument that employers have insisted be the only instrument of employment for most staff is not protected or automatically transferred to the new employer.
This means the old employment and the contract that described it can be dissolved with the old employer, even if the new position with the new employer is exactly the same as it was before. Employers are now using this strategy to dissolve contracts, reduce entitlements, expand job descriptions reduce salary and other benefits which may have been 'locked' in the original contract.
The reason why employers are doing this now is simply because they can. The rhetoric used to justify a violation of contract entitlements are usually words like standardisation or modernisation. It's happening now and your Union expects this to be an ongoing strategy that will impact many more staff. The most reliable and available option open to staff to protect their entitlements is to become collective, join their union and secure an EA, that both locks in and secures your current entitlements, even if the business in transferred or sold.
A contract was supposed to be an instrument of mutual trust. Clearly, that trust has been one sided.