COMMISSIONER ROBERTS BRISBANE, 13 APRIL 2011

Transcription

1 [2011] FWAA 2265 DECISION Fair Work Act 2009 s.185 Enterprise agreement Hail Creek Coal Pty Ltd (AG2011/7621) HAIL CREEK AGREEMENT 2011 Coal industry COMMISSIONER ROBERTS BRISBANE, 13 APRIL 2011 Application for approval of the Hail Creek Agreement [1] An application has been made for approval of an enterprise agreement known as the Hail Creek Agreement 2011 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Hail Creek Coal Pty Ltd. The agreement is a singleenterprise agreement. [2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met. [3] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Construction, Forestry, Mining and Energy Union, being bargaining representatives for the Agreement, have given notices under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers the organisations. [4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 April The nominal expiry date of the Agreement is 19 April COMMISSIONER Printed by authority of the Commonwealth Government Printer <Price code G, AE PR508406> 1

2 Hail Creek Agreement 2011

3 Table of contents Clause Page 1 Title 3 2 Scope 3 3 Purpose 3 4 Relationship to Awards and Agreements Previous Awards and Agreements Continuation of Staff Employment 4 5 Contract of Employment Types of Employment Engagement of Employees Work Code of Conduct Resigning from Hail Creek Termination by Hail Creek Abandonment of employment 6 6 Classifications 6 7 Remuneration Full-time and Fixed Term Employees Part-time Employees Casual Employees Apprentices / Trainees Salary Sacrifice Method of Payment 8 8 Salary Guarantee on Commencement 8 9 Performance Review 9 10 Hours Rosters Indicative Hours Meal and Rest Breaks Rest Period Between Shifts Safety and Health in the Workplace Safety Fitness for Duty Travel and Village Accommodation Medical Examinations 11

4 12 Work Clothing Staff Benefits Annual Leave Public Holidays Long Service Leave Compassionate Leave Parental Leave Community Service Leave Personal Leave Accident Pay Insurance Superannuation Training Introduction of Change Retrenchment Definition Basis Benefits Resolution of Issues Anti-Discrimination Individual Flexibility Arrangement Duration Signatories to the Agreement 23 Annexure 1 - Salary Structure 1 Total Salary 24 2 Role Base Salary 24 3 Market Allowance 24 4 Roster Allowance 25 5 Commute Allowance 26 6 Worked example of Calculation of Total Salary 26

5 1 Title This Agreement will be known as the Hail Creek Agreement 2011 (the Agreement). 2 Scope This Agreement applies to and covers Hail Creek Coal Pty Limited (Hail Creek) and its Employees based at the mine site working in operator and maintainer roles (the Employee(s)). 3 Purpose The Agreement provides a safety net that underpins the terms of the staff contracts of employment of all Employees covered by this Agreement. 4 Relationship to Awards and Agreements 4.1 Previous Awards and Agreements Upon approval of this Agreement with Fair Work Australia, this agreement replaces all previous Awards and Certified Agreements. The total package of benefits provided in this agreement includes compensation for and excludes the provisions in any award or agreement relating to Rest breaks Leave loading Incentives or bonus payments Public holidays Monetary allowances Overtime loadings Shift loadings Penalty rates. page 3

6 4.2 Continuation of Staff Employment Subject to the observance of this Agreement and to the obligations contained in it, nothing in this Agreement will affect the continued operation of existing staff contracts. An Employee under this Agreement may choose to work on staff conditions by accepting an offer of staff employment from Hail Creek. Staff contracts of employment will be not less favourable when taken as a whole, than the salary and conditions of employment provided by this Agreement. In particular, salaries may exceed the maximum provided in this Agreement. An Employee who has accepted a staff contract of employment may at any time elect to retum to the conditions provided by this Agreement. 5 Contract of Employment 5.1 Types of Employment Employees may be engaged as full-time, part-time, casual or fixed term Employees. Employees may also be engaged as apprentices or under a traineeship. Unless otherwise stated part-time employees will receive pro rated entitlements. 5.2 Engagement of Employees Employees may be engaged for an initial probationary peliod of 6 months. During the probationary peliod, the Employee's performance will be monitored and discussed. If an Employee is subject to a probationary period, the Employee or Hail Creek can terminate the employment duling the probationary period only, by giving one week's notice or by Hail Creek making a payment in lieu of one week's notice. Prior to the completion of the probationary period, Hail Creek will confilm the Employee's employment if the Employee's performance has been satisfactory. If, at this time, the Employee's perfolmance is assessed as being unsatisfactory the Employee will be advised of the details of an extension to the probationary period or the date that the employment will end. page 4

7 5.3 Work Hail Creek may require an Employee to carry out any work that is within their competence, subject to safety and statutory requirements. Employees may also be required to undertake training. Employees who do not attend for work when required, or who do not work as Hail Creek directs them to do, will be counselled and, where necessary, subject to disciplinary action and at Hail Creek's discretion may not be paid for the time that they did not attend or did not perform that work. 5.4 Code of Conduct Employees are required to comply with Hail Creek's Code of Conduct, as va11ed from time to time. 5.5 Resigning from Hail Creek Full-time and part-time Employees other than those on probation may resign by giving Hail Creek one month's notice, or less by agreement. Employees who choose not to work out their notice will folfeit the balance of the time not worked up to a maximum of one month's pay by a payment from any money owing on termination. Hail Creek may elect to make payment in lieu of notice and in these circumstances employment will end immediately. 5.6 Termination by Hail Creek Hail Creek will give full-time and part-time Employees at least one month's notice of termination. Hail Creek may pay an Employee in lieu of giving all or part of the required notice. If the Employee is over 45 years of age and has completed at least 2 continuous years of employment, the period of notice will be increased by 1 week. If Hail Creek has engaged an Employee for a fixed period or for a specific task, the employment will terminate at the completion of the period or task without the need for notice of termination to be given to the Employee. For Casual Employees, the period of notice required to telminate employment is 1 hour. page 5

8 The requirement to give notice of termination or pay in lieu does not apply when Hail Creek is terminating an Employee for serious misconduct. In such a case, the termination will take effect immediately. 5.7 Abandonment of employment Subject to the Fair Work Act 2009, an Employee who is absent from work without the prior or subsequent approval of Hail Creek shall lose pay for the actual time of such non-attendance. An Employee who is absent from work for more than one working week without approval of Hail Creek will be notified in writing that unless they report for duty, or communicate the reason for their absence, the Employee shall be deemed to have abandoned their employment. If within 2 weeks of notifying the Employee Hail Creek has not received a notification to satisfy a reasonable cause for absence the Employee shall be deemed to have abandoned employment and have terminated their contract of employment from the date of commencement of the absence from work. 6 Classifications Employees will be engaged and classified in operator or maintainer positions. Indicative base salaries are set out in clause 2 of Annexure 1. This Agreement underpins the terms of the staff contracts of employment of all Employees covered by this Agreement. There will be no reduction in base salaries and market premiums for existing Employees as a result of this Agreement. In pmticular, salaries may exceed the minimums provided for in Annexure 1. page 6

9 7 Remuneration 7.1 Full-time and Fixed Term Employees Full-time and fixed term Employees will be paid an annualised salary that includes provision for all ordinary hours averaged over a roster cycle, overtime penalties, loadings and all other payments or allowances (Total Salary). The Total Salary is comptised of a Role Base Salary, a Market Allowance, a Commute Allowance and a Roster Allowance where applicable. Annexure 1 sets out the salary structure. The quantums of salary payable under this Agreement may be varied having regard to the provisions of Clause Part-time Employees Part-time Employees will receive a pro-rata annualised Total Salary based on Annexure 1. The quantums of salary payable under this Agreement may be vatied having regard to the provisions of Clause Casual Employees Casual Employees will be paid an hourly rate based on the approptiate Role Base Salary as set out in Annexure 1, plus a 25% loading in lieu of sick leave and annual leave, together with a pro-rata payment of any applicable allowances. Casual Employees are not entitled to paid compassionate leave, the Medical Assistance Scheme or Death and Disability Insurance. 7.4 Apprentices / Trainees Apprentices and I or Trainees will be paid the following percentages of Total Salary for the relevant Role Category: 1 st Year 2 nd Year 3 rd Year 4th Year 40% 55% 75% 90% page 7

10 7.5 Salary Sacrifice Any salary sacrifice altangement entered into under this clause must be in accordance with Hail Creek's policy and Australian Taxation Office guidelines. Hail Creek and a full-time or part-time Employee may agree to allow the Employee to sacrifice a portion of his or her pre-tax salary, as set out in Annexure 1. For this purpose, an Employee's Total Salary shall be reduced by the amount which the Employee elects to salary sacrifice. The reduced salary and salary sacrifice contributions apply to all periods of paid leave provided by this Agreement. Salary reviews, company superannuation contributions, and termination and redundancy payments, are calculated by reference to the salary as if no salary sacrifice agreement was in place. Hail Creek has the right to vary and / or withdraw from offering salary sacrifice to Employees with appropriate notice if there is any alteration to relevant legislation that is detrimental to the salary sacrifice arrangements or Hail Creek. Employees may vary their salary sacrifice altangements in accordance with Hail Creek's policy. 7.6 Method of Payment An Employee's Total Salary following adjustment if required for a salary sacrificing an'angement, will be paid monthly into bank accounts of the Employee's choice. Any eltors in payments must be notified as soon as is practicable. Any over payments shall be recouped from the Employee's Total Salary, any accrued entitlements owing or any other payments made to Employees. Any under payments shall be rectified as soon as is practicable. 8 Salary Guarantee on Commencement An Employee's Role Base Salary will not be reduced as a result of the making of this Agreement. The Employee will continue to receive the salary arrangements pages

11 provided by their staff contract of employment unless the Employee transfers from full-time to part-time or casual employment. This guarantee applies while the Employee remains in their CUlTent position on their CUlTent anangements. 9 Performance Review Hail Creek will review each Employee's peliormance at least annually with the Employee to identify achievements and areas for improvement. This will assist the development of the Employee in their role. 10 Hours 10.1 Rosters Employees will be required to work the hours that are reasonably necessary to perform their role. Employees may be required to work shifts of up to 12Yz hours duration. Hail Creek may calty out its operations 24 hours per day, 7 days per week. Hail Creek will implement and change roster systems to meet the needs of the operation and in consideration of the health and safety needs of Employees. Prior to the introduction of any new roster system, Hail Creek will consult with the Employees directly affected, as far as is practicable, and will give prompt consideration to the matters raised by the Employees. Employees may be required to perfmill a handover for communication and work continuity. Recognition for this requirement is included in the Employee's Total Salary. Employees may be required to change between day work, shift work, shift work and day work or from one fmill of shift or shift roster to another. Where it is identified by Hail Creek that the hours of work including pre-shift meeting and hot seat changed cannot consistently be completed in 12Yz hours and all other options have been exhausted, a hot seat change will not occur. page 9

12 10.2 Indicative Hours An Employee's Total Salary represents payment for the pelformance of their role, not for the hours attending work. An indicative number of hours to be worked by a full-time Employee are contained in the roster descliptions in Annexure 1. The Total Salary has been determined on the basis that an Employee may need to work reasonable hours in addition to those hours indicated in Annexure I to perform their role Meal and Rest Breaks During the rostered hours of duty, Employees working 10.5-hour shifts or less are entitled to one 30 minute paid meal break. Employees working more than hour shifts are entitled to a total of 60 minutes as paid meal breaks. Meal breaks shall be taken at a scheduled time or as agreed with Hail Creek in consideration of health, safety and operational requirements. Employees are entitled to take additional breaks in accordance with their health and safety needs in consultation with their Supervisor Rest Period Between Shifts Unless exceptional circumstances exist, an Employee will have a break of at least ten consecutive hours between leaving work on one rostered shift and the start of their next rostered shift. Where a break of 10 hours is not possible Hail Creek shall have due regard to appropriate health and safety anangements for the Employee. 11 Safety and Health in the Workplace 11.1 Safety Employees are required to comply with all of Hail Creek's safety policies and procedures as varied from time to time and all safety provisions in any law or regulation. page 10

13 11.2 Fitness for Duty Employees must ensure they are fit for work whilst at work and fully comply with Hail Creek's Fitness For Duty Policy, as varied from time to time Travel and Village Accommodation For safety and health reasons Employees must comply with the Hail Creek Travel and Village Accommodation Policy, as vmied from time to time Medical Examinations Hail Creek will ensure that each Employee is physically able to meet the requirements of their role. Employees will be required to undertake a medical examination at Hail Creek's expense that will be based on the requirements of the Employee's role. The medical examination may include a physical examination, colour vision test, audiometry test, X rays and substance abuse screening for alcohol and drugs. Where an Employee changes role, the Employee may be asked to undertake a further examination based on the requirements of the new role. 12 Work Clothing Hail Creek will provide Employees with work clothing in accordance with the Hail Creek Clothing Policy as varied from time to time. Clothing will be replaced on a fair wear and tear basis. 13 Staff Benefits 13.1 Annual Leave Employees, other than casuals, are entitled to annual leave at the rate of 175 ordinary hours per year. Employees working on a 7-day roster (which means an employee who, over the roster cycle, may be rostered to work shifts on any of the seven days of the week or a roster which required ordinary shifts on public holidays and not less than 272 ordinary hours per year on Sundays) are entitled to annual leave at a rate of 210 ordinary hours per year. page 11

14 Employees will be paid their Total Salary for any period of approved annual leave. Unless otherwise agreed, Employees will give Hail Creek 4 weeks notice of their desire to take leave. Annual leave will be approved unless it will cause undue disruption to Hail Creek's operation. Hail Creek may shutdown a part or the entire site and require the taking of annual leave. In the event of a shutdown, Hail Creek will give Employees as much notice as possible. Unless otherwise agreed, Employees without a sufficient entitlement to leave for the period of the shutdown may apply to access annual leave in advance. The maximum amount of annual leave that Employees may accrue is the amount of leave that they would accrue for 2 years continuous service. Except where otherwise approved by their Manager, it is preferred Employees take at least two weeks of annual leave per year. Where an Employee has not taken 2 weeks annual leave within a 12 month period, Hail Creek may request an Employee to take 2 weeks' annual leave within the following 6 months or as agreed. An Employee may apply to their Manager to cash in up to 2 weeks per annum of their accrued annual leave entitlements provided that a minimum of 1 year's entitlement is retained. On termination, Employees will be paid for any untaken leave at their Total Salary. page 12

15 13.2 Public Holidays The following days will be recognised as holidays, together with any other day gazetted as a public holiday in Queensland or the region, for the purpose of this Agreement: New Years Day Australia Day Show Day Good Friday Easter Saturday Anzac Day Queen's Birthday MayDay Christmas Day Boxing Day Easter Monday Employees who are required to work Public Holidays in accordance with their roster are compensated for this in their Roster Allowance. Other than employees who volunteer to perform essential operational and maintenance activities, employees will not be required for duty on Christmas Day and Boxing Day (commencement on night shift Ch11stmas Eve and recommencement of full operations on night shift Boxing Day). Employees who work on either day will receive payment of $750 and 1 shift in lieu for each day worked. Hail Creek and the maj0l1ty of affected Employees may agree to transfer a holiday to another day. If this occurs, this other day will be recognised as the holiday and the gazetted holiday will be regarded as an ordinary working day Long Service Leave Entitlement Employees, other than casuals, are entitled to 13 weeks long service leave for each 8 years of continuous employment, provided this entitlement for any page 13

16 employee is not less than an employee's entitlement under the coal industry long service legislation. Following an Employee's first entitlement to long service leave, which is after 8 years continuous employment, the Employee will be entitled to a further period of 2 weeks long service leave after each 64 weeks of continuous employment. Employment will be continuous with previous employment in the coal mining industry unless the Employee has been out of the industry for a period of 3 months or longer. For periods greater than 3 months, agreement between the Employee and Hail Creek is required for bridging previous service, or in the event of a disagreement it will be dealt with in accordance with the dispute resolution procedure in Clause 17 of this Agreement. IT however, an Employee has been retrenched, Hail Creek will give the Employee credit for previous continuous employment in the industry. Previous employment will not include employment that has been used as the basis for leave that has been taken, or for which the Employee has been paid out. The period of absence will not count as time worked. Payment Payment whilst on long service leave will be at the Employee's Total Salary. IT an Employee is retrenched by Hail Creek and has completed a minimum of 6 years continuous employment a payment may be made for long service leave the Employee has accmed. Payment will be made in the event of an Employee's death or if 3 months has elapsed since retrenchment and despite taking all reasonable steps the Employee has been unable to obtain alternative employment in the coal mining industry. In the event of an Employee's death, termination due to ill health or retirement at the end of the Employee's working career, the Employee is entitled to payment for any accmed but untaken long service leave. If the Employee leaves Hail Creek with 8 years continuous employment, the Employee is entitled to payment. Payment on termination for any accmed but untaken long service leave will be at the Employee's Total Salary. page 14

17 13.4 Compassionate Leave If an Employee's spouse or defacto spouse, siblings, child, parent, step-parent, grandparent, grandchild, or the child, parent, grandparents, grandchild or sibling of a spouse or defacto spouse of the employee, or any other person who, immediately before that person's death, lived with the Employee as a member of the Employee's household: contracts or develops a personal illness that poses a serious threat to his or her life; or sustains a personal injury that poses a serious threat to his or her life; or dies; the Employee will be entitled to up to 2 days paid leave. The Employee may be entitled to an additional 2 days if significant travel is required. Hail Creek may require an Employee to provide satisfactory proof. Total Salary will be paid for approved compassionate leave. Casual employees are entitled to unpaid compassionate leave in accordance with the National Employment Standards in the Fair Work Act 2009 (Cth) Parental Leave An Employee will be entitled to Parental Leave in accordance with the National Employment Standards in the Fair Work Act (Cth) Community Service Leave Employees are entitled to Community Service leave for the period of time required by the courts. Employees will be paid the difference between the amount they receive for attending jury duty and their Total Salary. Employees notified of a requirement to attend for Jury Service should immediately advise their Manager. Employees are entitled to leave for voluntary emergency management activities or other prescribed activities in accordance with the National Employment Standards in the Fair Work Act (Cth) page 15

18 13.7 Personal Leave Personal leave includes both sick leave and special leave. Notwithstanding this clause, no Employee will have access to less than the personal leave prescribed by the National Employment Standards of the Fair Work Act (Cth) Sick Leave Employees, other than casuals, have access to paid sick leave on Total Salary when they are unable to work due to illness or injury. Employees are required to let their Manager know as soon as possible when they realise they are unable to attend work. An Employee's Manager may exercise their discretion requiring an Employee to provide a medical certificate or other evidence for any period of sick leave. Where, due to illness or injury, an Employee takes extended sick leave (usually longer than 3 months duration) the Employee's Manager will have the discretion as to whether any further component of salary will continue or be amended in any further payments made. There will be no payment for sick leave upon termination of employment. Special Leave Special leave may be approved for an Employee to provide care to members of their immediate family for whom they have responsibility or for other personal emergencies. Employees may be required to provide evidence of their need for special leave. Employees will be paid their Total Salary for special leave Accident Pay If an Employee is absent from work and receiving workers' compensation, Hail Creek will pay them accident pay on the following basis: (a) For a period of 39 weeks from the date of their injury, they will be paid the difference between what they receive for workers' compensation and their Total Salary at the time of the injury. page 16

19 (b) (c) If at the end of 39 weeks an Employee is still receiving workers' compensation, Hail Creek will pay them for a further 39 weeks, the difference between what they receive for workers' compensation and their Role Base Salary together with their Market Allowance. Accident pay will cease when an Employee resumes work or after a maximum of 78 weeks from the date of injury, whichever occurs first. The 78-week period commences from the first day of incapacity for work, which may be after the date of injury. Intermittent absences arising from the one injury are to be cumulative in the assessment of the 78 weeks. Where Hail Creek gives notice of termination of employment to an Employee absent from work on accident pay, the telmination of employment will not take effect until such incapacity ceases or until the expiration of a period of 78 weeks from the date of injury, whichever occurs first Insurance Hail Creek will provide free of cost to each Employee, other than casual and fixed term Employees, death and disability insurance. In the event of total and permanent disability or death, the Employee or the Employee's family are entitled to a lump sum amount based on the Employee's Role Base Salary. This is subject to the terms of the Rio Tinto Group Staff Death and Disability Scheme as varied from time to time Superannuation Hail Creek, and if required by the relevant fund, each Employee, will make superannuation contributions into either: (a) (b) The Defined Contributions (DC) Section of the Rio Tinto Superannuation Fund; or AUSCOAL Super; or if agreed by the Employee and Hail Creek, another complying Superannuation fund, in accordance with the rules of that fund or Hail Creek will contribute on a monthly basis, 9 per cent of an Employee's role remuneration into the Fund chosen by the Employee. Role page 17

20 remuneration is defined as being the sum of role base salary, plus market allowance, plus commute allowance, plus roster allowance. Where contributions made in accordance with this clause are made to a fund other than AUSCOAL Super, such contributions will be will be in satisfaction of all liabilities in relation to superannuation including any requirement that may exist within Queensland Coal and Oil Shale Mineworkers Superannuation Act (QCOS Act) on Hail Creek or Employees to make contributions required by the QCOS Act and the rules of the AUSCOAL Super Fund. Where an Employee elects for superannuation contributions to be paid to AUSCOAL Super, the contributions paid in accordance with this clause will be in satisfaction of the employer's contribution under the QCOS Act and AUSCOAL Super Fund rules. Employees will be required to make necessary contributions required by the QCOS Act and the rules of AUSCOAL Super. 14 Training To meet the business and operational needs of Hail Creek, and in order to increase the efficiency and productivity of the business, Employees are expected to participate, as required, in training and development. 15 Introduction of Change Hail Creek will consult with Employees about any decisions taken by Hail Creek that involve a major change which is likely to have a significant effect on jobs, the work performed or the way in which work is performed. An employee may be represented by a person on their choice in any discussions held under this clause. page 18

21 16 Retrenchment 16.1 Definition For the purpose of this clause "Total Remuneration" shall be calculated in the same way as the Employee's "Total Salary" in Annexure 1 except that the Role Base Salary component only will be factored up by An Employee will be retrenched if their role at Hail Creek becomes redundant and there is no alternative role for them in Hail Creek and they are not offered an adequate alternative position with another employer Basis Retrenchments will be based on merit and the needs of the business. Where an Employee is selected for retrenchment the Employee will be given as much notice as possible with a minimum of one month's notice Benefits Retrenched Employees will be entitled to the following benefits: At Hail Creek's discretion, pay in lieu of 1 month's notice where the notice period is not worked. If an Employee is over 45 years of age and has at least 2 years of continuous service, the Employee will be entitled to 5- calendar weeks notice or payment in lieu. Payment of 3 months earnings based on Total Remuneration; Payment of a Yz months Total Salary based for each year of service paid on a pro-rata basis, where total years of service is rounded to the next whole year; Pro-rata payments for accrued annual leave and long service leave. 17 Resolution of Issues It is the intent of Hail Creek and the employee to resolve any grievances directly with the employee. In the event of any dispute which relates to a matter arising under this Agreement, the National Employment Standards or in relation to employment or other issues whether specific to Hail Creek or industry generally, there shall not be any stoppage page 19

22 of work by the employee, and if such dispute is not settled it shall be processed in accordance with this clause. An employee may be represented by a person of their choice in any of the following steps. Procedure:- (1) When a grievance arises the matter shall in the first instance be discussed between the employee and the employee's supervisor. If the matter remains unresolved; (2) It will be refened in wliting for discussion between the employee and the appropliate Supelintendent. If the matter remains unresolved; (3) It will be refened in wliting for discussion between the employee and the appropliate MRU Manager. Where a dispute remains unresolved after step 3 above, then: a) For a matter that is the subject of this Agreement or the National Employment Standards, the employee or the employer may refer the matter to Fair Work Australia for conciliation. b) For a matter that is not the subject of this Agreement or the National Employment Standards, the employee or the employer may, by agreement, seek to refer the matter to Fair Work Australia for conciliation and/or arbitration. Any issue raised through this clause should be resolved within a reasonable period of time. An indicative timeframe will be provided to an employee refening a matter to steps 2 or Anti-Discrimination It is the intention of the parties to this Agreement to achieve the plincipal object in section 3(e) of the Fair Work Act (Cth) 2009 through respecting and valuing the diversity of the workforce by preventing and eliminating discrimination. page 20

23 19 Individual Flexibility Arrangement Hail Creek and individual Employees may agree to make an individual flexibility arrangement (IFA) to vary the effect of the terms of this Agreement, in accordance with this clause and the Fair Work Act. To make an IF A, the following requirements must be met: the IF A deals with any term under this agreement which confers rights and obligations on the Employees; the IFA is made to meet Hail Creek's and the Employee's genuine needs in relation to one or more of the above matters; and Hail Creek and the Employee genuinely agree to the arrangement. Hail Creek will ensure that any IF A that is agreed to: is in wliting; identifies the names of both parties; is signed by both parties (and if the Employee is under 18, by a parent or guardian of the Employee); is about permitted matters under s,172 of the FW Act and does not contain any unlawful terms under s.194 of the FW Act; includes the details of the terms of the Agreement that will be varied by the arrangement, and how they will be varied; and results in the Employee being better off overall than they would have been if the IFA had not been entered into. Hail Creek will provide the Employee with a copy of the IF A within 14 after it has been agreed. Hail Creek or the Employee who has entered into an IFA may terminate the IFA: by giving 28 days written notice to the other party; or if both parties agree in writing - at any time. page 21

24 20 Duration This Agreement will come into operation from 7 days after the agreement is approved by Fair Work Australia and has a nominal expiry date three years after the date of approval and shall continue until replaced or terminated in accordance with the Fair Work Act (Cth) page 22

25 21 Signatories to the Agreement SIGNED for and on behalf of Hail Creek Coal Pty Ltd On the 2011 z.-«-- Signature Full Name (printed): G U. S'H /7' A/;t/G tv in the presence of: r;:.-... \\ U \. \ \r.t"..-..,. 'j 5 _ Witness signature Address: ;;'ut"7v":< C)t.?(.Ic/,z-OP"-1.(:/'f..." r -o Address: 1.,111'4 Authority Position: ' SIGNED for and on behalf of /v1/l-iv/+g-c,7<{. (/3 G 77A- J 6) Bargaining representative of the employees On the 1. q d 0:;;" e.rc. \ A Full (printed):. (\ \ \ v- \-tt\"hs. Address: \ 4- nje...- :::. \- \ 'ke.<"' s.,\.c" L..t" S \ Authority Position: V '\ve Full Name (printed): "-C i'r, 'br' in the presence of: Witness signature. "r<- \{\c v \r) Full Name (printed): Address:.. :.... SIGNED for and on behalf of Staff Members... On the 30 day of t u.{. "-!if=o<u,) Address: 20lb r"'l,,"v"''i.}u 71'1 L<U1(] it 711 ij Authority Position: '1"&1 in the presence of:.. '. D) j \' -rt:j -.,,-,-.. /. ".....,... ""... ""."... "."."... "."." Witness signature Full Name (printed):. Address'....,'.... r \..+ {\ \ _ '> Ii; q",,fl./" \-.,-). page 23

26 Annexure 1 - Salary Structure 1 Total Salary The Total Salary of an Employee will comprise the Role Base Salary applicable to the Employee, the relevant Market Allowance, Commute Allowance and Roster Allowance where applicable. The amounts are provided by the following clauses. A worked example is set out in clause 6 of this Annexure. 2 Role Base Salary An Employee's Role Base Salary includes compensation for additional hours that are worked dm1ng employment. An Employee's Role Base Salary will be reviewed annually. Role Category Operators Minimum Role Base Salary $60,000 per annum Maintainers $69,250 per annum 3 Market Allowance This allowance compensates for all factors and disabilities associated with work at the mine together with a premium for remuneration levels in the coal mining industry. Market Allowance on Market Allowance 12 Market Allowance 24 Approval Month After Approval Months After Approval $20,000 per annum $21,000 per annum $22,000 per annum page 24

27 4 Roster Allowance An Employee's Roster Allowance compensates an Employee for all disabilities and working hours associated with the role, including the requirements of the roster, and work on any shift, weekend or public holiday required as part of the role, but excluding the additional hours incorporated in the Role Base Salary. Where a Roster Allowance needs to be calculated for a roster not set out in this Annexure, the Roster Allowance is to be not less than the extra loadings, penalties and payments provided by the relevant award that are payable for the work envisaged by the roster, calculated on the basis of the weekly rates of pay set by that award, less those amounts already incorporated in the Role Base Salary for compensation for additional hours. During the term of this agreement, roster allowances will be reviewed annually. Roster Roster Allowance eg Monday-Friday $9,625 Indicative 45 hour week Day Shift (incl Public Holidays) eg Monday-Friday $20,350 Indicative 45 hour week Rotating Shifts eg 7 Day $33,000 Continuous Shift Indicative hour week 7 Day $27,500 Day Shift Indicative hour week page 25

28 5 Commute Allowance This allowance compensates site based employees for the time spent away from their normal place of residence. Employees cun-ently receiving accommodation assistance under the Hail Creek Accommodation Assistance policy will transition to the commute allowance via a no disadvantage transitional an-angement. Commute Commute Allowance Commute Allowance Allowance on 12 Months After 24 Months After Approval Approval Approval $5,500 per annum $5,750 per annum $6,000 per annum 6 Worked example of Calculation of Total Salary This is an example of the calculation of the Total Salary on approval of the agreement for a Maintainer Employee paid a Role Base Salary of $69,250 who is appointed to the 7 Day Continuous Shift roster: Role Base Salary $69,250 Market Allowance $20,000 Commute Allowance $5,500 Roster Allowance $33,000 Total Salary $127,750 per annum page 26