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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 2, 16 St George's Terr PERTH WA 6000
Tel:(08)9325 6029 Fax:(08)9325 7096
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER EAMES
C No 38803 of 1999
TRANSPORT WORKERS' UNION OF AUSTRALIA
and
ADVENTURE TOURS PROPRIETARY LIMITED
TRADING AS SAFARI TREKS AND OTHERS
Notification pursuant to section 99
of the Act of a notification of industrial dispute
PERTH
10.17 AM, THURSDAY, 14 JUNE 2001
PN1
THE COMMISSIONER: Thank you, can I have the appearances please?
PN2
MR J. UPHILL: Good morning, Commissioner. If it please the Commission, I appear on behalf of White Gum Petroleum Proprietary Limited trading as Peak Petroleum.
PN3
MR L. DUFFIN: I appear on behalf of the Transport Workers' Union.
PN4
THE COMMISSIONER: Good, thank you. Well, has there been some discussion as to how we might proceed this morning or what has happened there, Mr Uphill?
PN5
MR UPHILL: There has indeed, Commissioner. I'm pleased to indicate that in the discussions I have had with Mr Duffin there seems to be agreement on the procedure to be adopted this morning.
PN6
THE COMMISSIONER: Good.
PN7
MR UPHILL: What we had in mind to do was that we are making the section 111AAA application and we would go first.
PN8
THE COMMISSIONER: All right.
PN9
MR UPHILL: With submissions, calling evidence and then Mr Duffin would respond by putting his case.
PN10
THE COMMISSIONER: That is fine, good. So you have got the short straw.
PN11
MR UPHILL: I did indeed. Commissioner, if I might commence, is that okay?
PN12
THE COMMISSIONER: Yes, indeed.
PN13
MR UPHILL: The application we make is pursuant to section 111AAA of the legislation so a convenient starting point is perhaps to review that section of legislation. Without going through it word for word but paraphrasing section 111AAA(1), what it talks about, Commissioner, of course is that if the Commission is satisfied a State award or a State Employment Agreement governs the employment of the particular employees, the Commission must cease dealing with the dispute unless the Commission is satisfied that ceasing will not be in the public interest. So broadly that is the command from section 111AAA.
PN14
A number of things in that section we need to look at. The first is whether or not there's a State award or a State Employment Agreement governing the Conditions of Employment of employees. What we say is that there is a State Employment Agreement, a State registered Workplace Agreement in fact. I think that is acknowledged by the union that the employees concerned are covered by a duly registered workplace agreement.
PN15
MR DUFFIN: There is no dispute on that.
PN16
MR UPHILL: The other aspect that perhaps is not quite so clear is whether or not there is State award that applies. I note in the union's outline of submissions they submit that there is no State award covering the employees in question. We have a different view, Commissioner. We believe that the State Transport Workers' General Award is capable of applying to these people and in fact we say it would apply if it were not for the workplace agreement. There may need to be some further detail on that and we will canvass that during the course of our submissions in evidence.
PN17
Returning to the relevant section in the Act, the Commission of course needs to be cognisance of the public interest and in section 111AAA(2), it tells us how we determine the public interest and the primary consideration is the views of the employees and also the views of the employer and they are matters that obviously we need to bring to the Commission so that a determination can be made in that regard. At the outset I should indicate to the Commission the result that we seek from these proceedings and what we seek, Commissioner, is an outcome pursuant to section 111AAA(4).
PN18
We seek the Commission to cease dealing with the matter and our preferred course of action is if the Commission dismiss that part of the dispute that relates to Peak Petroleum. In the alternative, if you are not persuaded to adopt that course of action, then what we would seek from these proceedings is that you refrain from further dealing with the dispute while the workplace agreements govern the employment of employees at Peak Petroleum. So that is the outcome that we seek from these proceedings.
PN19
I need to briefly mention what I believe are two important Full Bench decisions. They are of course referred to the respondent's outline of submissions. I won't take you to them in detail other than to indicate to you that these decisions are authority, in my view, for a number of propositions. If I might refer to the first Full Bench decision on our list of authorities. It is the matter in August of 1997 in print number P4289, a matter which is referred to as the River Connections case and what we say, Commissioner, is that particular decision is authority for the following proposition and that is that in our view the onus is on the union to prove that it is in the public interest for the Commission to continue dealing with the matter.
PN20
Once the Commission has determined that, the views of the employer and employee support the continuation of a workplace agreement. The next matter that I take you to is again a Full Bench decision, this time in October of last year, a matter involving the Rockingham Veterinary Clinic in print number T2026 and there are two propositions which we - no, in fact three propositions we believe can be substantiated by reference to that particular case. The first is that a WA registered workplace agreement satisfies the definition of a State Employment Agreement.
PN21
We think that conclusion is clear from what is page 12 of the decision. The second proposition that we think can be extracted from this decision is that in determining the public interest, the primary consideration is the views of the employer and employees and we draw attention to page 17 of that particular decision where paragraph 38, it says:
PN22
The second matter to which we refer is nothing in Simmonds C decision indicates that he gave primary consideration to the views of the employees and the employer or if he did, how that primary consideration was given. Indeed, it appears to us in paragraph 15 of his decision that he gave primary consideration to such of the objects of the Workplace Relations Act as are directed to an award safety net.
PN23
So we say that a consideration of that decision quite clearly leads to a conclusion that the main factor to consider in determining the public interest is the views of the employer and employees. The other proposition which we believe the Commissioner substantiated by looking at the Rockingham Veterinary Clinic case is a proposition that effectively reinforces the conclusion from the earlier River Connection's case and that was that once the views of the employer and employees had been determined, the onus then falls to the union to persuade the Commission why it should not cease dealing with the matter.
PN24
So that is reinforced as being a proper way to deal with issues such as this one. If I move on to look at the question of whether or not the State Transport Workers' General Award applies, given the comment I made a little earlier. I might perhaps at this stage hand up a copy of that award which I would ask go in as an exhibit.
PN25
MR UPHILL: Thank you, Commissioner. I take you to what is page 4 of the CCI copy of the award and in particular clause 3, the "scope clause". The close clause reads as follows:
PN26
This award shall apply to all workers following the vacations referred to in the wages schedule. When eligible for membership of the applicant union and who are employed in the industries referred to in the schedule of respondents.
PN27
So in looking at how the award applies, we need to look at the industries referred to in the schedule of respondents and if we go to the back of the award, in particular page 61 of the award, you will notice the second industry heading at the top of the page referred to as motor garages and service stations, that is industry heading that we say Peak Petroleum would come under if it were not for - and they would be covered by the award under that heading if it were not for the existence of the workplace agreements.
PN28
The other aspect I need to take you to, Commissioner, is to ensure that there are relevant classifications in the award that are capable of applying to the employees of Peak Petroleum and I refer simply to the blue wage schedule at the back of the document. There are various grades of drivers of vehicles and we would submit that grade 6 and 7 are probably the appropriate grades into which drivers of vehicles operated by Peak Petroleum would fall. So we submit that the Transport Workers' General Award is capable of applying to the operations of Peak Petroleum.
PN29
Having said that, I need to indicate to you, Commissioner, that the State Transport Award has as its parent award the major Federal Transport Award being the Transport Workers' 1998 Award. The rates are identical between the two awards and an adjustment in the Federal Award figures an adjustment in the State Award. Without going through the State Award, you will also I'm sure observe that it is a detailed and comprehensive award. It is an award which, in my submission, is kept up to date by a very active State branch of the Transport Workers' Union.
PN30
It has a dispute settling procedure within the award and employees and employers covered by the award have access to the State Industrial Commission. So in all respects it is a relevant and comprehensive State Award. Commissioner, I will next propose a brief review of the workplace agreements Act and I would hand up to you a copy of that legislation to go in as an exhibit, please.
PN31
MR UPHILL: Thank you, Commissioner. If we look at page 4 of the document, clause 5, Commissioner, indicates that in broad terms workplace agreements can be made between employers and employees. This in section 5 of the Act and section 6 of the Act deals with the effect of workplace agreements and you will notice in looking through section 6, 1A indicates that where there has been a workplace agreement made, that no award applies during the course of that workplace agreement in the life of the workplace agreement.
PN32
This is in 6(1)(a) and also (b) at the top of page 5. I would also draw your attention to page 9 of the legislation which deals with in clause 15 bargaining agents, you will notice that employees are entitled to be represented by a bargaining agent and I would submit that that may well be a union for example. There's no exclusion from a union being a bargaining agent so clearly employees have access to assistance if they wish to have someone help them with the development of a workplace agreement.
PN33
Page 11 of the Act in section 17 under the heading: Minimum conditions of employment, you will notice that the Minimum conditions of employment become part of the workplace agreement. So effectively the minimum conditions are implied into the terms of workplace agreement and in clause 18 there is also an additional implied provision, an implied provision as to unfair dismissal and that is that an employer must not unfairly, harshly or oppressively dismiss from employment an employee and there is a remedy if an employee so feels that they have been unfairly, harshly or oppressively dismissed.
PN34
Also at page 13 of the act, clause 21, you will notice that workplace agreements must have a dispute resolution clause within them and there is a number of central requirements for a disputing settling clause and the are spelt out in subclause (2) of clause 21. I note, Commissioner, in the union's outline of submissions they say that:
PN35
The workplace agreement currently in existence with employees of Peak Petroleum does not have a dispute settling clause. It has access to this Commission.
PN36
That is correct, but what we say is that there is an adequate dispute settling clause within the workplace agreement and indeed that is one of the essential requirements of a workplace agreement before it is capable of being approved by the Commissioner for Workplace Agreements. Turning to page 18 of the Act. There is further indication of the criteria that need to be satisfied before registration of workplace agreement can occur. In clause 30 it deals with the fact that:
PN37
The Commissioner must be satisfied as regards certain matters.
PN38
In subclause (1), there are a number of essential elements. Skipping subclause (a) and moving on to (b).
PN39
That each party of the agreement appears to understand his or her rights and obligations under the agreement.
PN40
That is an essential criteria that must be satisfied if an agreement is to be registered, and then in subclause (c) that:
PN41
No party to the agreement was persuaded by threats or intimidation to enter into the agreement.
PN42
So clearly, the workplace agreements must be freely entered into without any pressure to do so. Subclause (d) that:
PN43
Each party to the agreement generally wishes to have the agreement registered.
PN44
So again, a further requirement that it must truly reflect the wishes of the party that the agreement be approved by the Commissioner. That is a very quick over-view of the Workplace Agreements Act, but, I think, it covers more important elements of legislation. The next matter I perhaps need to take you to, Commissioner, is the Minimum Conditions of Employment Act and I will simply tender a copy of that without going through it in detail.
PN45
MR UPHILL: I simply ask you to observe, Commissioner, that in looking at the contents of the Minimum Conditions of Employment Act that it is comprehensive, dealing with a range of matters, wage rates, leave entitlements, keeping records and so forth. I take my comments in regard to that no further. Commissioner, the evidence that we will bring will, in our view, quite clearly indicate that employees and the employer wish to have their existing workplace agreement arrangements continue. If that is a conclusion that you form from the evidence then we need to move on to look at the public interests aspects, other than the views of the employer and the employees.
PN46
In considering what other factors might be brought to your attention, we need to bear in mind an assessment as to whether or not those other facts out-weigh the views of the employer and employees. Perhaps one of the first public interests issues that is likely to be raised by my friend goes to the objects of the legislation, the objects of the Workplace Relations Act. Of course, in these types of proceedings in the past, emphasis has been made by unions on the safety-net aspect of the objects of the legislation, Section 3D of the objects. But we believe there are also other important sections of the objects that we need to look at to get a total appreciation of the flavour that the objects of the act have within them. We believe that the objects, such as 3B, are important where it talks about:
PN47
Ensuring that the primary responsibility for determining matters affecting the relationship between employers and employees rest with the employer and employees at the work place or enterprise level.
PN48
That is an important consideration. Likewise, 3C is also an essential element. 3C talks about enabling employers and employees to choose the most appropriate form of agreement for their particular circumstances. Whether or not that form is provided for by this act. So clearly, that envisages other arrangements that people might enter into and that it is appropriate that people who are directly affected choose the form of regulation that they think suits them best. Also 3D(i) is important where that talks about:
PN49
Providing the means for wages and conditions of employment to be determined as far as possible by the agreement of employers and employees at the work place or enterprise level upon a foundation of minimum standards.
PN50
So all of those objects, we think, Commissioner, lend weight to the submission we put and, that is, that the employees and the employer ought to be able to determine their own destiny. We also say, Commissioner, that the objects of the act as they relate to the award safety-net aspect are not, in our view, a reason for overriding the wishes of the employees and the employer. The other aspect that I need to address in talking about the public interest is the aspect of uniformity. The likely suggestion from the union is that competitors of Peak Petroleum are covered by the Federal Oil Agents Contractors Award and therefore they company ought to be also bound by that particular award.
PN51
Now, we say, that particular notion is not a notion that ought to be given any weight. We say that for three particular reasons. The first is that, that argument about uniformity via national regulation is, we believe, inconsistent with the objects of the act. It is inconsistent with what is 3B of the act and also inconsistent with what is 3C of the legislation. The second reason why we say this notion of uniformity ought not be given any weight is because there was a section 94 in the act many years ago and that, as you may recall, encouraged the Commission to provide uniformity in conditions of employment within an industry. However, that section of the act was repealed in 1993 and with its repeal, what we say, is that there was a change in the direction within the act. There is now a greater emphasis on enterprise bargaining, an agreement making direct between the employer the employees.
PN52
The third reason why we say this notion of uniformity ought not be given any weight is that roping in Peak Petroleum will not, in our view, provide uniformity within the industry. We say that because, as you would be aware, companies usually have certified agreements that sit on top of Federal awards and what that means is that there are differences between each company with respect to wages and conditions of employment. So there is little uniformity, we would submit, at the moment between companies covered by the Transport Workers, Oil Agents Contractors Award. So roping Peak Petroleum into that particular award, we say, will do very little in reality to provide greater uniformity within that industry or within that award.
PN53
The third aspect of the public interests that I perhaps need to address is the safety aspect. In looking at the union's outline of submissions, there seems to be a suggestion that the current method of operation is unsafe and that is because there is no Federal award currently regulating the employer and employees. The suggestion is that by putting in place a Federal award it will somehow improve the operation's safety. What we say, is that suggestion really cannot be taken seriously. There is, we submit, already extensive regulation of fuel cartage to ensure safety. There is the Occupational Safety and Health legislation within this State that Peak Petroleum need to comply with.
PN54
There is also requirements related to the transportation of dangerous goods. There are licenses that people need to have, there is a code and also there is a requirement that dangerous goods only be transported on certain designated dangerous goods routes. In addition, Commissioner, we say that Peak Petroleum have in place a fatigue management code and that limits the work and the hours that employees can undertake to hours that can be safely worked within that particular operation. With respect to the fatigue management area, I might at this stage tender to you a document which I would ask be included as a further exhibit.
PN55
MR UPHILL: Thank you. Commissioner, this is, as you will see, a code of practice: Fatigue Management for Commercial Vehicle Drivers. It is produced by the Department of Transport and it is a document which has been around for a couple of years now and is the basis on which companies, in this State, have been encouraged to implement a fatigue management code within their own establishment. I might take you to some of the important elements of this particular code. At page 1, at the top of the page, the question is asked: Why the code is being introduced? And the response is that:
PN56
Bus and truck crashes are dangerous and costly to all road users and fatigue contributes to a significant number of these crashes. The West Australian Government aims to reduce the impact of fatigue in the road transport industry through the introduction of a fatigue management system. Both employers and employees have responsibilities under this section. Expected benefits of the fatigue management system are fewer crashes, reduced mechanical costs and reduced insurance premiums.
PN57
Then on the right hand side of the page the legislative framework for the code is outlined and it indicates that:
PN58
The code of practice on fatigue management for commercial vehicle drivers operates in accordance with section 57 of the Occupational Safety and Health Act.
PN59
We now look at the operational standards under this code, at page 7 of the document. They are shown in a table at the bottom of page 7. Those operating standards are firstly that:
PN60
There is a maximum continuous active work time. This is driving and non-driving work time for 5 hours. There is also a minimum short break time within every 5½ hours and this should be, at least, 30 minutes.
PN61
And thirdly, you will notice that:
PN62
There is a maximum average working time per 24 hours over 12 days of 14 hours.
PN63
So a maximum work time per day is 14 hours under the code. On page 9, Commissioner, you will notice that the various terms are defined and there is a need to have short breaks within every 5½ hours of work and you will notice the definition of a short break is shown on page 9 on the left-hand column and it means:
PN64
A break from active work which can include toilet stops, checking the load, rest and meals.
PN65
So that is an important requirement to ensure that drivers are not fatigued so they cannot undertake their duties safely. So that is, of course, the code under the Occupational Safety and Health legislation which is publicised by the Department of Transport. I can indicate to you that Peak Petroleum do have their own fatigue management code and it certainly is modelled on the requirements we have just been through and the evidence that Mr Mark Quackenbush will give, he will explain to us the features of the company's fatigue management code. What we say, Commissioner, is that the regulation of the employment arrangements for employees of Peak Petroleum under a workplace agreement does not, in our view, pose any safety hazards and conversely, what we submit is that the imposing of a Federal award on this company is not going to improve the safety of fuel cartage.
PN66
The next aspect of the public interests that I wish to go to is pending changes to State Industrial Relations legislation. I do so because it seems as though the union will suggest that Peak Petroleum should be roped into a Federal award because the State workplace agreement legislation is going to be repealed. Now, the implication of that, it would seem from the union's perspective, is that as workplace agreements will cease therefore you ought to provide some sort of regulation for the employment conditions of employees of Peak Petroleum.
PN67
Now, that of course, is predicated on the union's belief that there is no State award that covers these people and we believe that is a wrong conclusion that, in the absence of a workplace agreement, there would be regulation under a State award. But what we say is that even if the workplace agreement legislation is repealed as is foreshadowed by the State Labor Government. It is not correct to say that, automatically, the workplace agreements will come to an end and to substantiate that point I need to take you to what is the intention of the State Labor Government and I can indicate to you, Commissioner, that there is no draft legislation at the moment. It is certainly expected that draft legislation will be available, possibly in September or October of this year and the intention is that the legislation come into effect at the end of the year.
PN68
What that means is that, in order to get an appreciation of what is likely to be in the legislation I need to take you to a number of documents that explain the position of the State Labor Government and if I could tender a document which starts to do that?
EXHIBIT #U5 ALP POLICY STATEMENT DOCUMENT IN RESPECT TO INDUSTRIAL RELATIONS
PN69
MR UPHILL: Commissioner, this is the ALP's policy statement with respect to industrial relations. It was released prior to the February State election and if I take you to what is page 15 of the document. It talks about - in clause 3, repeal, the Workplace Agreements Act (1993), but you will notice in, what is dot point number 2, the following comment and that is:
PN70
Allow existing WA WAS to continue under transitional arrangements for a maximum period of 3 years from their commencement date.
PN71
So where there are workplace agreements already in place, it is envisaged that they will be allowed to continue and over on page 16 of the document is further reference to what happens with continuing workplace agreements. At the top of the page, point number 5 indicates:
PN72
The continuing WA WAS must equal or better the remuneration package for the applicable award as measured by the no-disadvantage test required for the registration of an EEA -
PN73
that is, employer-employee agreement -
PN74
There will not be any re-registration process but the new minimum standard is applicable from 1 month following repeal of the Workplace Agreements Act.
PN75
So for workplace agreements which are currently in force these will continue even although the workplace agreement sacked is being repealed, but what is significant is that one month after the new legislation comes into force, the continuing workplace agreements must meet a no disadvantage test - and clearly that is a significant change from what currently occurs in that State workplace agreements do not now have to meet a no disadvantage test. The other change, Commissioner, is at page 17 of the document under the heading, point 5: The Minimum Provisions of Employment Act 1993. The last dot point:
PN76
Expand the matters to which there are minimum standards in the Minimum Provisions of Employment Act.
PN77
So what is envisaged is that the Minimum Provisions of Employment Act will be greatly enlarged and as we have seen from a review of the Workplace Agreements Act - and it is expected that Minimum Provisions will continue to be implied into the new EAs and also Minimum Provisions of Employment Act will continue to be implied into continuing workplace agreements - and where that occurs those issues which are implied into those agreements will be expanded quite considerably. I might at this stage tender a further exhibit dealing with what is intended in the new legislation.
PN78
PN79
MR UPHILL: Commissioner, this is a media statement from the Minister for labour relations and it is dated 20 March of this year and it deals with time limits for workplace agreements. You will notice the fourth paragraph from the bottom. It says:
PN80
Mr Belpey said all workplace agreements that existed prior to today's date would continue to run until their respective expiry dates with all agreements expired within 3 years.
PN81
So the cut off date is 21 March of this year. Agreements in force before that date will be allowed to continue, provided their expiry date is not more than 3 years beyond the date of the introduction of the new legislation. I can report to you, Commissioner, that all of the workplace agreements that affect employees of Peak Petroleum were registered last year at varying times during the year, depending upon when people commenced with the company, and all of the agreements are for a 3-year period. So what that means, Commissioner, is that all of the agreements will expire some time in the year 2003.
PN82
So coming back to the effect of the pending legislation, existing workplace agreements will continue, but 1 month after legislation comes into being, there will be a requirement that they meet a no disadvantage test. What we say, Commissioner, is that the changes to the State legislation are in our view designed to benefit employees - and I don't think that can be seriously challenged. We therefore say that for the union to suggest that the changes to the legislation are a reason for this Commission to continue dealing with the matter, is not a view that we think can be substantiated. We think the opposite is true.
PN83
We say that the changes to the State legislation, which are likely to be of benefit to employees, are changes to legislation which mean that it is not necessary for this Commission to continue dealing with the matter. What we say is that the changes to legislation effectively mean there is no need for this Commission to be involved in the regulation of employment arrangements at Peak Petroleum. There is one last matter that I should take you to, Commissioner, and that is to comment on any comparison between the existing workplace agreement and the Federal Award - the Oil Agents Contractors Award. I am fairly confident that my friend will look at that comparison and perhaps criticise the workplace agreement by saying that it is inadequate in comparison to the award and what we say in response to that sort of comparison is that there is really not a lot of point in doing that sort of exercise - and I say that for a number of reasons.
PN84
The first is that the Federal Act, of course, says that the major consideration is the views of the employer and the employees, so that is the overriding consideration. The second reason why we say there is probably not a lot of point in doing that comparison is that, even the State Commissioner for workplace agreements does not at the moment need to do a comparison between a workplace agreement and an award. What he does need to satisfy himself about is that people understand the workplace agreement. They have freely entered into it, and if he forms that view then it is likely that the Commissioner will register the workplace agreement.
PN85
In my submission, it does not matter if the workplace agreement is better or worse than the award - that is simply not an element that the Commissioner for workplace agreements needs to enter into at the moment. The third reason why we say that a comparison is really not an exercise that you need to do - and this is really returning to the Federal legislation - and we say that if after determining the views of the employee and the employer they support the continuation of the workplace agreement, then we need to look at other public interest factors. While a comparison between the workplace agreement and the award may be of interest to drivers, I would argue that this is part of an individual interest and is not part of the public interest. What we say is that public interest involves wider considerations than individual interests. It takes into account such things as public safety, legislative changes, all those sorts of things that I have addressed in my submissions.
PN86
So therefore we submit that a comparison of the award and the workplace agreement is not one of the factors that, in our view, ought to be something that determines this matter. In conclusion to our submission, Commissioner, we believe that after hearing the parties and the evidence the conclusion that the Commission ought to draw is that there are no public interest factors that are of sufficient importance to outweigh the views of the employer and the employees and we put that submission. I now need to turn to call evidence and I would ask that Mr Mark Quackenbush go into the witness-box.
PN87
THE COMMISSIONER: I take it there is other people who will be giving evidence in the proceedings today. Is there any objection to those people remaining in the Court, or would people prefer that they remain outside?
PN88
MR UPHILL: Commissioner, I think by preference I would prefer that they were actually outside.
PN89
THE COMMISSIONER: Yes, well, I thought that might be the case and if there are people to be called, perhaps while evidence is taken from the witnesses, other witnesses might take a seat outside.
PN90
PN91
PN92
MR UPHILL: Mr Quackenbush, you have given your full name and address to the Commission. Can you tell me what your occupation is please?---I'm a director of White Gum Petroleum. My working capacity is that of general manager.
PN93
And who are the other directors of the company?---I'm a sole director.
PN94
Right, thank you. Could you describe the activities of the company?---We have - we operate 16 service stations in Perth and we've got a small commercial business of six or seven commercial customers.
PN95
Do your drivers deliver to all of your service stations?---At the moment they are - it changes - sometimes we use contractors, sometimes we use all drivers, it depends a little bit on who we're purchasing from.
PN96
And who do you purchase from?---Mainly Mobil but we - in recent times we have purchased from BP and things are changing a little bit because we've got maximum wholesale fuel coming in, hopefully, which we would like to have more flexibility to be able to buy from different suppliers, so the preference is to have drivers rather than contractors.
PN97
And how many employees do you have?---The company has about 45 employees, most of them are consul operators in service stations.
PN98
Okay, can you give the Commissioner a breakdown of what those 45 employees are - most are consul operators - how many would there be?---Well, if I work backwards there is five drivers, one of which is on long term workers compensation. There is office staff of - office and management of about five people - and the balance are consul operators.
PN99
So about 35 - - - ?---Yes.
PN100
- - - consul operators. And how long has the company been operating?---Five to six years.
PN101
Can you tell the Commission what vehicles you have, what truck delivery vehicles you have?---We've got a small 14 ton rigid that is seldom used - yes, they're just as an emergency - and there are two - two prime movers that are double-shifted. One of them operates a gas tanker during one shift and a fuel tanker on the other shift, and the other prime mover is petroleum - has liquid petroleum products only.
PN102
What does that LPG prime mover deliver to?---It's a one man, one shift, and delivers only to our service stations. In that case we buy from BP Kwinana Refinery and deliver to our service stations.
PN103
Do you do any country runs?---We've got a couple of commercial customers in Kalgoorlie. We deliver to Kalgoorlie every 5 days. That is really the - the major work, other than our service stations.
PN104
Okay. I wonder if the witness could be shown a copy of the State Transport Workers Award, which is exhibit U1. Can you turn to page 61 of the document please, Mr Quackenbush?---Yes.
PN105
See a heading of: Motor Garages and Service Stations?---Yes.
PN106
How would you compare your activities to that industry heading?---The - the second item - the Motor Garages and Service Stations?
PN107
That is right, yes?---That is our business.
PN108
Right, okay - - - ?---Primarily our business.
PN109
Right, thank you. Are you able to tell us what the size of the vehicles are that you operate?---Well, we've got two prime movers.
PN110
Yes?---And four wagons. One of those wagons is a gas wagon and the other three are 35,000, 40,000 litre fuel wagons. One of the prime movers is capable of running two wagons at a time. It's a pocket - called a pocket B-double.
PN111
Okay, thank you. Can I ask you how you started introducing workplace agreements to your employees? Who were the first - - - ?---Workplace agreements commenced with the consul operators and we worked up a model with the Commissioner of Workplace Agreements, and once that was established, we then looked at a workplace agreement for the drivers and that was about 2 years ago we commenced that.
PN112
On what was the workplace agreement based?---We took advice from the MTA, Motor Traders Association as to what award applied to our drivers and I took advice from the Commissioner of Workplace Agreements and we based it on the State Transport Award as a base for working it up.
PN113
Okay. Could I ask you how the workplace agreement was put to your new drivers?---It was a progressive thing. We had an agreement - we had agreements in place for the drivers that were mirrors of the agreements we were trying to work up, but there were a couple of areas which weren't suitable, so we had to submit a couple of drafts and, finally, took some help from one of the delegates of the Commission. From that time forward - "that time" being about 18 months ago - forward, we had a workplace agreement that hasn't changed until today and it's - it's a prime document in the interview process for a driver.
PN114
And can you tell us about that interview process and what is discussed?---We generally get our replacement drivers by word of mouth so it is a fairly brief process. They - we - they have probably already got their dangerous goods and AIP licences and passports in place before they come to us but it is a checking of the licences and giving them a copy of the workplace agreement, running through the main aspects with them, explaining the type of work that is involved, explaining that it is a set hourly rate no matter how many hours they work and that we don't mind whether they - whether their preference is for 20 hours or 60 hours, we will try and fit them in. They take a copy of the workplace agreement away with them. They are encouraged to phone or make other contact if they have got any queries.
PN115
What is the hourly rate you pay under the workplace agreement?---$16 an hour.
PN116
That is for all the work undertaken?---That is for all work, all vehicles.
PN117
And the workplace agreement has a disputes clause within it?---Yes, it does.
PN118
I wonder if you can tell the Commission what you see as the advantages of the workplace agreement to yourself and to employees?---It suits both parties. If we were bound by a particular award rather than a workplace agreement we would be scheduling work that didn't incur much overtime, if any. On routes like the Kalgoorlie run where we would incur log penalty rates, we would use a contractor instead, so it is - it gives the company flexibility and for the employee, it gives the employee opportunity to earn a lot more money that they would under the award circumstance where we would only be scheduling say 38 hours a week. I should say at that point, that the drivers - all the drivers, prefer to work longer hours rather than shorter hours.
PN119
What sort of hours on a daily basis would the drivers be working approximately?---Roughly 60 hours a week.
PN120
Is that over 6 days?---Yes.
PN121
Have any of your drivers raised queries with the workplace agreement or problems with the agreement?---Not - no, not that I'm aware.
PN122
I understand that Mr Paul Ganzer worked for you previously but left and has returned subsequently. Is that correct?---Yes, that is correct.
PN123
Are you able to tell the Commission the circumstances under which he left your company when he was first engaged by you?---Well, he first left of his own volition and then on return he was suspended for a short period of time by the supplying terminal, Mobil, so he has really worked for us in three separate lots.
PN124
Right?---We re-employed him for the second time as a - because he is a good driver.
PN125
THE COMMISSIONER: When you say he was suspended by the Mobil terminal, what does all that mean?---He spilt some fuel down there and that is not the problem. The problem was he didn't report it to the terminal manager and Mobil suspended him indefinitely and - - -
PN126
What - mainly he couldn't load from their location?---Yes, yes - can't load until Mobil approved of him again. They don't necessarily have a procedure for inducting them again, they just like them to go away and never return, but we made some representations to Mobil and we got him his induction back.
PN127
Right, that explains it, thank you.
PN128
MR UPHILL: Has Mr Ganzer expressed any view about the award or the adequacy of the workplace agreement?---Not until about 3 weeks ago when I became aware that he was the person talking to the TWU that brought this hearing on. I spoke to him then about it. He said very little other than - when I asked him directly whether he would prefer to be under the workplace agreement or the Federal award and he said he thought the Federal award was fairer. That is all he said.
PN129
Right?---So we finished the conversation there.
PN130
What do you say to any accusations the company has pressured Mr Ganzer to sign a witness statement supporting workplace agreements?---Certainly not. It was - and I know of no pressure whatsoever. He came back to us looking for a job. He knew the workplace agreement was - the way we did business, and it was never raised until we raised it 3 weeks ago.
PN131
Can you tell us, Mr Quackenbush, what licences people need to work in the industry?---There is dangerous goods licence, and there is an industry specific licence, called AIP - Australian Institute of Petroleum. Both of them are short courses with renewals every 2 or 3 years, depending on the licence. The AIP is both an employee requirement and a vehicle requirement. It is a vehicle safety inspection requirement every 6 months. Then there is the state fatigue management and other state requirements - well, work safe requirements are the state requirements.
PN132
THE COMMISSIONER: Apparently a tick from the oil companies.
PN133
MR UPHILL: Are there terminal inductions done for new employees, or - - -?---Yes. There is probably four or five metro fuel terminals and they have all got their own induction requirements and they differ and they have to be renewed.
PN134
Mr Quackenbush, can you tell the Commission what employees need to do in order to qualify to receive the dangerous goods licence or an AIP licence?---There are short - in both cases, there are short courses to attend. They have to reach a certain standard. I'm not familiar with the particulars of those.
PN135
Right. The cost of those licences, who bears those costs?---We bear the renewal costs so if they - usually they come to us with those in place, but if they came to us with dangerous goods in place and not an AIP passport, we would pay the cost of an AIP passport.
PN136
Can you tell the Commission whether or not you are restricted in the highways and routes that petrol tanker drivers actually drive on?---Dependant on what tanker and what load you are carrying. There are certain restrictions for dangerous goods. For instance, the Farmer Freeway, you can't go on the Farmer Freeway and when you are running the pocket B double, there is only certain designated routes in the metro area and state that you can run on. They are the prime ones.
PN137
I wonder if, Mr Quackenbush could be shown the document please?
PN138
Mr Quackenbush, you have seen the document before?---Yes.
PN139
It is your company's fatigue management code?---Yes, it is.
PN140
When did that code come into being?---We started working on it in about October last year and it came into force 1 December - sorry, 1 January this year.
PN141
There are a number of elements to the code. I think on the first page you indicate there are six elements. Is that correct?---Yes.
PN142
On the second page, the first element is licences?---Yes.
PN143
What is required there?---The licences I spoke about earlier, the dangerous goods licence, a normal drivers licence, and the AIP licence or passport as it is called.
PN144
Right, okay. Under the heading of "Training" - training is given to drivers - - -?---Well, there is a formal training that goes with the licences and internally we have fatigue management education process where they are given a book and when they feel comfortable with - that they understand it all, they are given a small test - it is a computer based test and if they pass the test they are awarded a certificate. It doesn't matter if they fail, they can try the test again next week. But it is really just - to make sure they understand the issues.
PN145
Right. Next page there is mention of various testing for alcohol, drugs, and also fatigue testing. What is involved with that in terms - - -?---Well, we haven't had any drug or alcohol problem to deal with. It is just there to empower the transport manager to take some action if he observes any drug or alcohol problem. Similarly with fatigue. Fatigue or rather length of hours and fatigue has been the real reason we have brought this in place. We were concerned that some drivers were - the drivers want to work as many hours as they can and we are trying to make sure that we are doing so without fatigue.
PN146
Over the page dealing with scheduling trips, it refers to the fact that the transport manager shall schedule trips according to certain principles. Can you just explain what those principles are?---Well, there is a variety of principles. The main one is to do with the number of hours in a day and if they are going to be required to say, work a 16 hour day on a Kalgoorlie run that they are given enough notice, but the main issue is to ensure that they don't work more than 13 hours in a day. We have been focussing on that over the last 6 months because we - the first - well, this one is dated 1 April. The one that was prior to that had a longer - had an extra hour in it and we took some advice from one of the workplace inspectors that because of our circumstance, it would be better to adopt this new model of 1 hour less. So that - although there is many aspects to the scheduling of a trip, that is probably the most important one.
PN147
So you took advice from a work safe inspector?---Yes, yes. A work safe inspector came out in March to review our records and procedures and made just the one recommendation.
PN148
I notice on the back page there is a compliance form. It is headed up "Compliance Form A"?---Yes.
PN149
How is that form used?---The transport manager completes this each week and it comes to me, or over my desk. If I've got a - together with the driver's work sheets, if I've got a problem with any aspect of it, I take it back to the transport manager. I should say I have a problem with it - about one every 3 weeks.
PN150
Okay?---Just with minor aspects. It is usually running an hour or two over on a particular day. That is always a question of, you know, was it scheduled diligently or could we have avoided it, those sort of problems.
PN151
Right. So there is a reporting mechanism to pick up - - -?---Yes, the weekly - the drivers are paid weekly and this comes to me with the pay sheets.
PN152
PN153
MR UPHILL: Mr Quackenbush, can I ask you what your company safety record is like?---I don't know of any safety problem other than the spill with Mr Ganzer and Mobil. I think there was one minor accident - minor being $1000. I'm not aware of any safety problem.
PN154
Okay. So you haven't had any tankers roll over or anything of that nature?---No, and the AIP licence - one of our competitors has, yes.
PN155
Okay?---The AIP licence is a 6 monthly inspection, so there is not - there is never any safety problem with the vehicle as such, it is more likely to be a safety problem with the way they are driven.
PN156
Okay. Thank you, no further questions.
PN157
PN158
MR DUFFIN: Mr Quackenbush, I just - I am a bit of a slow counter, which is probably why I did law and not economics or something similar - I just wanted to run through the number of vehicles you have got again. You have got four wagons, now they are roughly 35-40,000 or is it - - -?---Well, let us call them 35-4000 litres wagons.
PN159
You said you had two prime movers. What sort of is their maximum weight once filled?---Fully loaded?
PN160
Fully loaded?---Well, one of the prime movers takes two wagons on a Kalgoorlie run.
PN161
So it is a big road train?---Pocket road train, that's peculiar to WA. It is a short version of a road train and they are able to be operated in the metro area but seldom are but they can certainly get loaded at the terminals and take off for the country in this pocket configuration.
PN162
When that is fully loaded how much are you looking at? You know, it must be a huge load, certainly by comparison to 35-40,000?---Well, the - I would have to add it up. They carry about 60,000 litres of diesel with a specific gravity of .8283. The prime mover would weigh 7 tonnes and the wagons themselves would weigh 5 to 6 tonnes each. It is on that run, that is the only - - -
PN163
That is the Kalgoorlie run?---That is the Kalgoorlie run, yes. The rest of the time they would be dragging one wagon around metro which is the main work.
PN164
Now, you said that before you had five drivers, you haven't had any new employees since March 2001, that is right, isn't it? Any new drivers, I should clarify?---I am not sure when Ray joined us. Ray is the newest driver. He has been there for about 8 weeks, I think. Close to the cut-off.
PN165
So there is one driver that is probably - - -?---I am not sure - - -
PN166
There or thereabouts, we can ask Ray.
PN167
THE COMMISSIONER: That is Mr Howting, I take it?
PN168
MR DUFFIN: Yes.
PN169
THE COMMISSIONER: All right.
PN170
MR DUFFIN: So the remaining four drivers, one of which is on long term workers comp had their agreements made in 2000?---I think so. Without checking the dates I'm not sure.
PN171
What is the cause of the long term workers comp?---Wayne Dunphy kicked a ring feeder. The ring feeder connects the two trailers, A and B trailer for the Kalgoorlie run on the pocket road train. He brought it up together and it wasn't quite aligned and so he kicked it and did a cartilage.
PN172
In his knee, I take it?---In his knee, yes.
PN173
You stated - I don't know whether you have got a copy of your statement with you, perhaps you don't?---No, I don't.
PN174
I think you can have mine. Now, in paragraph 2 of your statement there you say that all the drivers freely accepted the workplace agreement?---Yes.
PN175
Was making a workplace agreement with you a precondition to obtaining employment?---In a general sense, yes.
PN176
So in essence if they didn't sign the workplace agreement you wouldn't have employed them, would you?---If they had a problem we would have discussed it with them. The workplace agreement is designed to suit both parties. If they had a problem with it, there may be a reason to change some aspect of the workplace agreement.
PN177
So if they had said to you, you know, look, I want $18 an hour, what would you have said?---That would not have been a negotiable part of it but if - - -
PN178
So the wage rate was not negotiable, is that right?---Correct.
PN179
So did you discuss Federal awards or the State award which my friend keeps referring to with them at all prior to offering this workplace agreement?---I haven't done any of the interviews for the drivers.
PN180
Well, to the best of your knowledge, would that have been something that was discussed in an interview?---They discuss the workplace agreement in detail. As to how much detail I am not sure but that is one of the key elements of the interview and they are given - - -
PN181
THE COMMISSIONER: Sorry, which is one of the key elements?---Keys elements of the interview process is they are given a copy of the workplace agreement to take away and the person doing the interview runs through - briefly runs through the agreement and says if you have got any problems, give me a call.
PN182
MR DUFFIN: Perhaps I can show you a letter from your organisation to Mr Ganzer - I have got copies for my friend and the Commission. Now, just bear with me one second while I give the Commissioner a copy. If I just take you to that, I guess it is the first paragraph after the initial position classification location and it says:
PN183
Terms and conditions of your employment are more fully detailed in the attached workplace agreement which you are required to sign prior to commencing work.
PN184
So that in essence - indeed it goes on to say:
PN185
This offer of employment is conditional upon the workplace agreement being registered by the Commissioner for Workplace Agreements. If the agreement is not registered your employment shall immediately terminate with the need for any further notice.
PN186
Now, that seems to me it is pretty clear the only basis of employment is upon the terms of the attached workplace agreement?---Yes. I said in essence, yes.
PN187
So when you say that they freely accepted the workplace agreement what you actually mean is if they wanted to work with you that was the basis of the employment relationship?---That's what we were offering.
PN188
I mean, I guess what I am trying to say is while there may not be what might be regarded as coercion in a legal sense, that is the basis of the employment relationship: you sign here and you have your job?---That is probably putting it too strongly. We just want to make sure that they are happy before they enter into the employment.
PN189
Just want to make them happy.
PN190
THE COMMISSIONER: Do you wish that document marked?
PN191
PN192
MR DUFFIN: Sorry, Commissioner, what was T1?
PN193
THE COMMISSIONER: Just going back to it now. Ms Tisdall tendered a statement of service in relation to the application.
PN194
MR DUFFIN: Thank you. Now, you said before the wage rate, as between all the employees, is $16 per hour, that is correct, isn't it?---Yes.
PN195
Are the workplace agreements, apart from that, in identical terms as between all the employees, to the best of your knowledge?---Yes. To the best of my knowledge, yes.
PN196
So there are no differences as between any of the employees?---No.
PN197
They have a set workplace agreement?---That's correct.
PN198
Now, you said before that in the interview process, employees or the prospective employees are given a copy of the agreement and encouraged to sort of walk away, have a think about it and get back to you. Did you encourage them to seek independent advice on the matter?---Well, I didn't do the interviews. It is mainly there - when they say they want the job and we say that we believe them to be suitable, there is a brief cooling off period just to ensure that both parties are content to proceed, that is why they are given a copy of the agreement and encouraged to give the transport manager a call, who is doing the interviews, if they have got any queries.
PN199
Well, looking at your statement, paragraph 5 there you talk about the agreements suiting the needs of the drivers. Now, you can't really know what suits the needs of the drivers, can you?---Yes, indeed.
PN200
So what is the basis of what makes them suit the drivers?---The drivers want to earn about $1000 a week.
PN201
On your flat rate, how many hours would they have to do to earn $1000 a week?---16 into 1000.
PN202
As I said, I am not a calculator - that would be upwards, around 60 hours a week I would imagine?---Approximately.
PN203
PN204
MR DUFFIN: Now, based on the sort of data there, would you look at the first page where it says: Peak Petroleum wage outcome, in order to get $1000 a week, let us put you into the first year of service person, you are having to work 140 hours per fortnight?---Sorry, I am just - - -
PN205
If you look at the first one which is Peak Petroleum, if you go to - let us just start at the fourth row which is - - -?---98 hours a week.
PN206
Sorry, 120 - must be fifth row - 120 hour fortnight, 6 months to 2 years service, 12 hours per day, Monday to Friday only?---Yes.
PN207
Under Peak Petroleum, that gets you about $1000?---Yes.
PN208
So that is your 60 hours a week?---Yes.
PN209
If you did the same analysis in the Federal Award, you would end up with $2500 - $2600 really. Now, fundamentally, the reason why they are having to work those hours with you is because your wage rate is so much lower, isn't it?---Well, this is not a valid comparison because if we are obliged to pay under the Federal Award they would be working 35 hours a week, not 60 hours a week so in other words we couldn't - the costs would be prohibitive that we would only be running at 35 hours a week or on selected routes we would use contractors.
PN210
So as far as you are concerned, if employees want to earn money the only way they can do it is by working under your way or as basically - - -?---Well, if they are on a Federal Award and on 35 hours a week, they would be earning in the high 600 somewhere, say 680-690. If they are doing the same number of hours on our $16, they would be on about - - -
PN211
In fact, you can do that same calculation, that first two rows there, if you want?---So they would be on 500 and something.
PN212
587 if they are under the award?---587. So what I am saying it is not a valid comparison because you - that sort of work wouldn't be available for under Federal Award.
PN213
Because you would say to them: No, we are not going to pay you overtime?---Correct, we are not going to schedule overtime.
PN214
Right?---There would be a little bit but we couldn't afford it.
PN215
For what it is worth, I guess this probably just confirms your position then, does not it, really. I think it is a letter that Mr Winn of your organisation sent. I must also regret the inconvenience to your organisation. Sadly that is the way these things work. It is not as a result of complaints to the TWU, the TWU did this prior to Mr Ganzer ever making any complaints - - - ?---Well, on that point, TWU organiser rang me about 12 months ago and they said they had had a complaint from one of our drivers. I didn't know until 3 weeks ago who it was. Mr Ganzer said 3 weeks ago that it was him.
PN216
There has been more than one driver that has made a complaint, let me assure you of that. Now, I guess that - I just want to go to that - what is it, the sixth paragraph down where it says:
PN217
While it sounds attractive reality is if we came under the award work would be scheduled at 35 hours per week of normal time. Overall wages would be much less.
PN218
Fundamentally what you are saying is, isn't it, you are only interested in paying the rate which suits your organisation. The rate which operates generally across the oil industry is something that you are not going to be involved in?---Well, I don't know that it does operate generally across the oil industry.
PN219
We will come to that later on, I guess?---The contractors award that you are attempting to rope us into are a diminishing business. There is probably only 20 per cent - 20 per cent of the number of contractors around now than there were 20 years ago when this award came into being.
PN220
We will leave that as your opinion. Do you know about the terms of the Federal All Agents and Contractors Award? Do you know about the award?---I know it is a 35 hour a week - I know about it generally, not specifically. I haven't looked at it in several years.
PN221
Well, from what you do know, is it the case your agreements are above or below that award condition? Let us being with the wages, are they above?---Below. They are below that. They are above the State award and below the Federal award.
PN222
THE COMMISSIONER: Do you wish this document marked?
PN223
PN224
MR DUFFIN: Your Honour, my friend earlier this morning referred to the Minimum Conditions of Employment Act which is the basis for which these workplace agreements must be compared to. Now, rather than use the whole thing, there is a brief summary which the local department provides on their web site, the Department of Productivity and Labour Relations. I do not know whether you have ever seen a copy of that? This could be marked as well, thanks, Commissioner. It is just, basically it is a summary of the Minimum Conditions of Employment Act. It is just a little bit easier to access.
PN225
MR DUFFIN: All right, now, I don't know whether you have got a copy of any of the - given that any of the workplace agreements would be in identical terms, but would you know the terms of the agreements off hand?---Probably.
PN226
All right. Now, the wage rate you are paying, the minimum rates are on the front page of that, and you can see that for the adult minimum wage is $400 a week, which is expressed as $10.01 per hour. Now, you are paying more than the minimum rate on that, under these, you are paying $16 aren't you?---Yes.
PN227
All right. Now, if you go over the following page we look at the minimum conditions of employment. Now, half way down, we have got annual leave?---Yes.
PN228
Full-time and part-time employees receive 4 weeks annual leave each year at the normal number hours worked. Now, your agreements provide for 4 weeks, is that right?---Yes, they do.
PN229
Sick and injury leave, it is up to 80 hours, that is the basis of your agreements, are they?---We have - we have a sick leave provision there, I am just not sure of the number of hours in it, but anyway - - -
PN230
All right, but as far as bereavement leave, I suspect you are probably in a similar position, you don't know exactly what it is but from what I have seen it is 2 days per annum, so that is the same as what is in this document as well. There is parental leave which is in your agreements which is for up to 52 weeks unpaid parental leave, which is the same as in the Minimum Conditions of Employment Act as well, isn't it? After 12 months service?---Yes, I am - look, I am not sure without referring to our agreement but I presume it is.
PN231
As far as the notice standards, workplace agreement provides the minimum Federal standards for notice, do you recall that at all?---Well, in answer to all these question, the agreement was worked up for us with the assistance of the Commissioner of Workplace Agreements. A draft went back and forth, we wanted to ensure that we met all the minimum conditions. I am not aware of the specifics but I just say I presume that they are covered.
PN232
Well, perhaps, I can just come to the crunch, if you like. Well, before I do that there are a last couple of questions. My friend has referred a couple of times in the workplace agreements to the existence of a disputes resolution procedure. Now, the disputes resolution procedure from what I have seen provides for the appointment of an independent arbitrator, is that correct and the costs for that independent arbitrator to be shared 50:50 between the employee and employer and that should no agreement be reached as between the employee and the employer as to who shall be the independent arbitrator, the Chamber of Commerce and Industry of Western Australia gets to chose who the independent arbitrator is. Do you recall that?---Not specifically, no.
PN233
All right, look, from what I have seen I can tell you that that is the case. I guess what I am coming to is that are there any other terms other than that $16 an hour difference, which are in the workplace agreements which are to the benefit of employees above the Minimum Employment Conditions Act standards?---I don't think so.
PN234
Because that is what the Commission for Workplace Agreements basically have to draft, isn't it?---Yes, it was - well, most of the focus, we wanted a casual, to pay the casual rate, we were proposing $19 under the casual rate and we couldn't quite - we took advice that that wouldn't be acceptable. It was in a grey area. So eventually we ended up back with the $16 and 4 four weeks annual leave and the rest of it. It was working up that model and taking advice for them on - from them on inclusion of certain paragraphs to make sure we met all the minimum requirements.
PN235
All right, so everything in the agreement meets the minimum requirements with the exception of the wage thing which is above?---I think so.
PN236
Are there any other provisions within those agreements which serve to increase productivity or the day work is performed, other than the fact that employees are paid a flat rate across all hours worked?---Could you rephrase that question?
PN237
Yes, sure. Apart from the fact that a flat rate is paid for every hour worked, are there any terms within the agreements which would serve to increase productivity?---I don't know.
PN238
Okay. Look, I might just leave those questions there for now, for the time being. Are you aware of the new Labor Government's policy in relation to workplace agreements?---Broadly, yes, but specifically, from today.
PN239
All right, if I can give you a copy of U5. I think my friend raised certain issues associated with these this morning. I think the key is to look at page 15. Are you aware firstly that the Government intends to amend the legislation providing for those agreements?---Yes.
PN240
Okay. Now, at page 15, the point 5 and it is more or less in the middle of the page:
PN241
Continuing Western Australian Workplace Agreements must pay a wage or salary that meets the no disadvantage test against the wages and conditions of the applicable award.
PN242
THE COMMISSIONER: Are you still on page 15?
PN243
MR DUFFIN: Yes. Sorry, I think maybe with the copy I have here it is slightly different. Sorry. I seem to have an outdated policy statement here. It is a moveable feast this. Sorry, the document that my friend has provided is that:
PN244
Continuing Workplace Agreements must equal or better the remuneration package for the applicable award as measured by the no disadvantage test.
PN245
That is at point 5, so I guess fundamentally we are talking about the same thing. Now, it seems to me that any of the agreements that you have got will now be subject to or are intended to be subject to the relevant award. Now, that is correct, isn't it?---Yes, I suppose I have to wait and see what the draft legislation is.
PN246
Well, from what you seem to be saying this morning that if there is legislation which leads to those laws coming into place you seem to be saying that the State award is the award that might bind you, is that right?---Well, we are advised by a couple of bodies that we come under the State award. I don't know of anything to the contrary.
PN247
I guess we will come to that during the course of the day. Are you aware that the State Government Policy is that the workplace agreements made after 21 March 2001 will only have a life span of 6 months. Now, I guess that is only relevant if - I have forgotten Ray's last name, his agreement is actually made after that date, isn't it?---We think it may be, yes. Look, I am not, I am really not sure on that point. Perhaps we should be checking it.
PN248
Look, we will wait for him, I think. Okay. For what it is worth, I just thought it might be worth looking at point 6 for you as well, which is that there will be scope for enforcement by employees to equivalent minimum award standards. Were you aware that that was the Government policy?---Well, you know, we meet the minimum standards and we always - - -
PN249
You meet minimum standards under the minimum employment conditions, is that right?---And the State Transport Award.
PN250
I have got a further document which refers to what the Government is actually intending to do. It is probably a little bit more recent than anything that Mr Uphill has provided this morning and it comes from the Department's website again. If you look at the first page of that, and it is the paragraph after or commencing:
PN251
Employers who fail to upgrade continuing workplace agreements may be prosecuted and incur monetary penalties.
PN252
Were you aware that that might happen?---Not until reading it there, no, but we would as a matter of course comply with any requirements as and when we have to. There is no - you are not suggesting that we are trying to avoid it, are you?
PN253
I am not suggesting anything. Were you a member of APADA at any stage, that is the Australian Petroleum and Agents Distribution Association?---Yes, briefly, about - we were a member for about 3 weeks, about 3 years ago.
PN254
About 3 years ago, and did you resign your membership?---Yes.
PN255
Why did you resign your membership?---Because we were advised by the Industrial Relations person that we would be bound under the contractors award if we were a member.
PN256
So as soon as you became aware that you had become a member you jumped straight out again?---Yes, at the time we had one driver.
PN257
Now, have you seen the statements that were prepared in relation to this matter?
PN258
THE COMMISSIONER: Well, just before you move on, did you wish that document marked?
PN259
PN260
MR DUFFIN: Yes, did you see a copy of the statements that were made by the employees in this matter?---Yes, I can't recall them but, yes, I did.
PN261
I may show you one just so that you can. Did you prepare the statements for the employees?---With the assistance of CCI.
PN262
Okay. Did the employees have any input into those statements?---I asked the transport manager, the person who employs them - - -
PN263
Mr Winn?---Mr Winn.
PN264
Yes?---To fully discuss the issues with them and to present them with the statement. I asked him to - he told me that he - he did - and without any exceptions they didn't have any problems - that included Mr Ganzer.
PN265
Well, were employees allowed to vary those statements to put in their own words at all?---Mr Winn, no, but Mr Winn said that none of them had any problems with it on those issues, so the statement was prepared on those issues.
PN266
I guess in one sense we really need Mr Winn here.
PN267
THE COMMISSIONER: Well, perhaps just to clarify that answer, were the statements prepared prior to the interviews with the employees?---I'm not sure, probably were.
PN268
MR DUFFIN: Okay. I guess what interests me about it is that the statements are - - - ?---It's - excuse me - yes, they were as I recall.
PN269
THE COMMISSIONER: All right, so they were prepared beforehand, discussion took place I assume between Mr Winn and - - - ?---And the drivers.
PN270
And the employee?---Yes.
PN271
On an individual basis?---An individual basis.
PN272
Then having had that discussion they were asked: would you sign this. Is that as you understand what happened?---That's as I understand it, yes. That was broadly his instructions and to make sure they understood the issues.
PN273
MR DUFFIN: Was it suggested to any of the drivers that if they didn't sign the statement that there wouldn't be ongoing work?---Not that I'm aware, but I wasn't present at the meetings.
PN274
Okay, well, was it suggested - again you may not be aware - but was it suggested that if they didn't sign the statements that the amount of work that would be available would be reduced to 35 hours per week?---Quite possibly because I explained to Ian Winn that: if we became - if we came under the Federal Award we'd have to restructure the way we did our transport.
PN275
Okay - - - ?---I didn't go into - - -
PN276
Could it possibly - - - ?---Sorry, I didn't go into specifics with him other than to just give him a - I said the Kalgoorlie run we'd probably put off to a contractor.
PN277
All right, so it could have been suggested to them that, for example, that one or more of the trucks might have been sold?---I doubt it. No, I didn't have that discussion with Mr Winn, so I doubt that he - - -
PN278
Would have gone that far?---- - - would have had - no.
PN279
All right. Were the employees to your knowledge informed as to the nature of the statement and what it was intended to be used for?---Only broadly. They were told that: we had a hearing coming up with the TWU, who are trying to rope us into the Federal Award. We want to stay where we are. We wanted to make sure that they were happy to stay where they are - along those lines.
PN280
Okay. Again, to your knowledge, were the employees - was this discussed with employees as a group, or individually?---The instruction was to talk to them individually - as far as I know it was individual.
PN281
Okay, and were they, again to your knowledge, brought into Mr Winn's office and given the statements and told to sign them?---No. Well, the instructions were to discuss the issues and then give them the statement and all discussions to take place in Mr Winn's office he's - that's where he delegates the work from. He sees them on a daily basis as they come in to get their work schedule.
PN282
Can I just - well, just for final clarification, I guess, you weren't present at any of these conversations, your instructions to Mr Winn were: these statements are for the purposes of this TWU application? That is right so far?---We - we said as a result of - we had - the application was coming up. We had been made aware that one of the drivers was not happy working under the present workplace agreement. We didn't know who that person was, that he should - Mr Winn should discuss all the issues with the drivers and - like a refresher, to make sure they're all happy with it. And he came back and told me that without exception they were.
PN283
Without exception they signed it?---No, that without exception all of them told him that they were happy with it. We didn't know until some time after that Mr Ganzer wasn't happy with it.
PN284
Right.
PN285
THE COMMISSIONER: When you say "it", happy with the agreement - - -?---The agreement, yes - - -
PN286
- - - the terms of the agreement?--- - - - terms of the agreement.
PN287
MR DUFFIN: Happy with the terms of the statement?---Terms of the agreement and when I became aware that Mr Ganzer wasn't I - I spoke to him with Ian Winn.
PN288
What was that conversation about?---Well, we wanted to discuss the issues with him to see whether it was true that he would prefer to be under a Federal award than under the current arrangement.
PN289
His answer was that he would?---No, his answer was specifically - I'm trying to recall his words again - - -
PN290
That it was fairer, from what you said earlier?---Yes, it was - it seemed like a fairer award. He didn't exactly answer the question but the inference was: yes.
PN291
Just a couple of points of clarification for me. If you were to have to reduce everyone's hours back to 35 hours and use contractors, who would those contractors be?---Well, on the Kalgoorlie run, Mobil would use a contractor - - -
PN292
An owner-driver?---No, I don't know who they use but I know the - the contractor rate for Mobil and it's approximately our cost now. So that would be an easy one. So whoever Mobil are using, we'd use.
PN293
Did you have, earlier this year, a degree of overflow in the truck side of the business where you were having to use contractors more often than you usually would?---Well, we varied a little bit to try and get it right. If - if we're a driver short we will use more contractors but it's - it's economical for us to - well, desirable and probably economical for us to use as many of our own as we can.
PN294
Were you using Finemores earlier this year?---Well, we don't exactly use Finemores. We get - we buy some fuel from Mobil.
PN295
Yes?---Most of it from Mobil and we'll ask Mobil to deliver and Mobil will use Finemores.
PN296
Who are your main competitors then?---I suppose Gull Petroleum would be the - the most or the closest. They're a large independent in WA. They've got about 100 service stations and we got 16. There's - there's Westco, I'm not sure how many they've got, maybe - maybe eight service stations.
PN297
Now, just the last couple of questions for you. Your fatigue management plan, prior to the introduction of this what were the main means, or what were the main options, you had for preventing drivers from working excessive hours?---It was left up to the transport manager to manage fatigue but without the formality of these guidelines.
PN298
Why do you think it is that the drivers want to work as many hours as possible?---They want to earn as much money as possible.
PN299
I guess this goes back to my earlier question to you, in order to earn as much money as possible with you they have to work as many hours as possible, isn't that correct?---No. We don't mind if a - if a driver worked 20 hours a week.
PN300
That is not quite answering the question. In order to earn as much money as possible, they have to work as many hours as possible. There's no - - -?---Yes, that would apply in any scenario.
PN301
That is true, but in most scenarios there are standard working hours and there are what might be regarded as penalty rates for working non-standard hours, for working overtime, for working excessive hours. There are no such things within your agreement, are there?---No, it allows us to schedule work that, you know, if under an award would be - penalty allows us to schedule work that's a flat rate, not penalty.
PN302
So in essence, the main issue for you is the fact that you are now able to provide as much work as possible - sorry, I withdraw that, let me rephrase that. The main issue for you is that you have a single rate that you can use irrespective of the number of hours a driver might work?---Yes.
PN303
Okay. I have got no further questions, Commissioner.
PN304
THE COMMISSIONER: Mr Uphill?
PN305
MR UPHILL: There is no re-examination, Commissioner.
PN306
THE COMMISSIONER: I have just got just a couple of questions. In relation to the situation that if the union is successful in their application, I take it from the evidence that you have given that you would look at restructuring your business to minimise the impact that the Federal award provisions might have on your wages - - -?---Yes.
PN307
- - - liability?---Yes, that's correct.
PN308
To what extent have you considered that? Is there - - -?---Well, I've thought it through, like, many times.
PN309
Yes?---But without really - well, first of all, I wasn't expecting the hearing to occur and then I - I still think - well, we will probably be successful but if we're not, yes, I thought of it a few times. What we'd probably do is put a contractor on the Kalgoorlie run, where we've got known low costs. We'd probably sell one truck off to an owner-driver type of contractor and we would probably keep one vehicle, being the gas - the one that does the gas work. So probably keep two - two drivers maybe, maybe three drivers, and restructure the rest. Sorry, I haven't formed any - that's just a general idea - - -
PN310
Sure?--- - - - of what we'd probably do.
PN311
I assumed, because of the time that this whole matter has been running, that you would have given some thought to it and I appreciate your frankness in relation to that. The only other question that I have got is that in relation to the witness statements from the drivers that Mr Duffin has just been questioning you about. I notice that in relation to Mr Ganzer, he has dated his statement on the 21st and the other drivers have dated it on the 20th. Is there anything that flows from that from your point of view?---Well, I doubt it. It's more like - Mr Ganzer does the Kalgoorlie runs, it's more likely that he was away.
PN312
He just wasn't available on the day that the other interviews were conducted and you got - - -?---I would - I would think so because at - - -
PN313
- - - him the next day?--- - - - at that time we didn't know that it was Mr Ganzer that was talking to the TWU.
PN314
Right.
PN315
MR DUFFIN: Commissioner?
PN316
THE COMMISSIONER: Yes?
PN317
MR DUFFIN: Just in relation to that first question you asked - - -
PN318
THE COMMISSIONER: Yes.
PN319
MR DUFFIN: - - - if I could be just given leave to ask a further couple of questions of the witness in relation to that?
PN320
THE COMMISSIONER: I would have said - if there was anything arising from my questioning, would have given both of the advocates an opportunity to pursue that.
PN321
MR DUFFIN: Well, perhaps I will wait until you finish then, Commissioner.
PN322
THE COMMISSIONER: Yes. I think, in fact, you have addressed the only queries that I had, Mr Quackenbush. Yes. No, I am satisfied. Is there anything arising?
PN323
MR DUFFIN: Look, I do just have a couple of questions in relation to your comments in relation to restructuring. It was something I should have asked you earlier, in truth. Had you given any thought, any consideration, to actually looking at doing an enterprise agreement or doing other forms of agreement which would satisfy no disadvantage tests, either in my Act or in the forthcoming Act?
PN324
THE COMMISSIONER: Yes, Mr Uphill?
PN325
MR UPHILL: Commissioner, I object to that question being put. It is not something that arises out of your questions to the witness.
PN326
MR DUFFIN: Well, Commissioner, I do think that it is pretty fundamental to what is going on. The question that you have raised, or your first question is: what is going to happen or what thoughts have you given as to - - -
PN327
THE COMMISSIONER: Yes.
PN328
MR DUFFIN: Now, it seems to me that fundamentally out of that comes a further question, which is: well, here is one strategy, have you not thought about this?
PN329
THE COMMISSIONER: As an alternative to - - -
PN330
MR DUFFIN: That is correct, as an alternative to - - -
PN331
THE COMMISSIONER: - - - the provisions of the award.
PN332
MR DUFFIN: - - - either getting rid of three people or looking at it - - -
PN333
THE COMMISSIONER: Yes. I will allow the question.
PN334
THE WITNESS: No. No, I haven't thought it, but if we are successful in this hearing there'll be some changes, probably when the State Government legislation comes in, but I hadn't thought of restructuring a - an agreement, a workplace agreement.
PN335
MR DUFFIN: You hadn't thought of either an Australian Workplace Agreement within the context of the Workplace Relations Act or a certified agreement either directly with employees or - - -?---No, I just hadn't thought it through that - that far.
PN336
All right. So we haven't got to that stage, the only issue that you have got to at this stage, if I am right, is that looking at restructuring the business, reducing the number of hours and possibly having contractors or a less number of employees, is that right?---Yes. Yes, two to three and keeping the - the one prime mover.
PN337
Okay, thank you.
PN338
THE COMMISSIONER: Mr Uphill?
PN339
MR UPHILL: There is nothing out of that, Commissioner.
PN340
PN341
THE COMMISSIONER: Yes?
PN342
MR UPHILL: Commissioner, I would ask that Mr Paul Ganzer be called to give evidence.
PN343
PN344
PN345
MR UPHILL: Mr Hood, you have given the Commission your full name and residential address?---Yes.
PN346
You are a truck driver employed by Peak Petroleum, is that correct?---I am.
PN347
How long have you been employed by the company?---Nearly 12 months.
PN348
When you started with Peak Petroleum did you have an employment interview?---Yes.
PN349
Who was that with?---Ian Winn.
PN350
Ian Winn, okay. Can you recall what was discussed at that employment interview?---Yes, he pointed out the - the pay, what the job consisted of, showed me a workplace agreement to read, asked me if I'd like to take it home and study it, and I said no, signed it and that was it. He countersigned it and that was the finish.
PN351
How long did the employment interview last, can you recall?---Probably about 15 minutes, I suppose.
PN352
Who were you working with before you - - -?---I'd been working with a Michael Edwards for 8½ years carting gas for BOC.
PN353
How did you come to be employed by Peak Petroleum?---Well, the contract run out at BOC and I needed a job so I just rang around until - and left my name and they rang me up when they needed a driver.
PN354
Did you know before you were offered a job at Peak Petroleum that they had workplace agreements applying at their organisation?---No.
PN355
So you read through the agreement at the employment interview, did you?---Yes, I read it.
PN356
You understand what is in it?---Yes.
PN357
At that employment interview were you aware that people covered by awards generally get overtime?---Yes.
PN358
It didn't bother you that there was a flat rate rather than penalty rates in the agreement?---No, because I'd worked on a flat rate for 8½ years with BOC.
PN359
Do you want your existing workplace agreement to continue to cover your employment?---I do.
PN360
What do you say to any suggestions that you are working excessive hours?---I'm not.
PN361
What hours are you working?---About - just over 70.
PN362
THE COMMISSIONER: That is per week, I take it?---Yes. Yes.
PN363
MR UPHILL: What do you say to any suggestion that working 70 hours a week is a safety hazard?---It's not. I was working 120 with BOC.
PN364
No further questions.
PN365
PN366
MR DUFFIN: Yes. Mr Hood, what is the weight of the truck that you are driving?---34 tonne loaded.
PN367
You have been with the company for about 12 months, that is right, isn't it?---Yes, 12 months on the 6th of July.
PN368
Now, just in relation to your statement - I don't know whether you have seen a copy of it. Now, it is in the same terms as the other statements by the employees in this matter. What was your input into actually making that statement?---It was written out and I signed it after I'd read it.
PN369
They just gave it to you and said: yes?---Yes, they asked me whether - I actually - I asked them to give me a waiver.
PN370
You asked for a waiver?---I asked them, I did.
PN371
Because you would prefer to be on the workplace agreement?---I do, yes.
PN372
Do you know about the terms of the Federal award?---No.
PN373
Any interest in the terms of the Federal award?---No.
PN374
Have you ever worked under the Federal award?---No.
PN375
As far as signing that statement then and as far as signing your workplace agreement as well - - -?---Yes.
PN376
- - - you don't know really what the alternative is, do you?---I didn't inquire because I wasn't interested.
PN377
Because you are quite happy with what you have got?---I'm happy with - very happy with what I've got.
PN378
Can I just show the witness T3, I think it is? You were saying that you are working 70 hours a week there?---Yes, roughly. Yes, roundabouts.
PN379
So roughly 140 hours per fortnight?---Sometimes a bit less, sometimes a little bit more.
PN380
If you go to the Peak Petroleum one, which I think is the front one?---That's the right one, yes.
PN381
You would be in that second last row there?---Mm.
PN382
So you are earning about $2000 a fortnight gross?---Yes, a bit over, yes.
PN383
That is roughly right?---Yes.
PN384
Now, just in relation to the Federal award - - -?---Yes.
PN385
- - - that is the following document?---Yes.
PN386
If you go to the second last row there?---Yes.
PN387
You would be earning $3322.44, plus leave loading, plus meal allowances?---Where does it say 3000? It says - - -
PN388
THE COMMISSIONER: It is the last page, I think.
PN389
MR DUFFIN: Go to the last page?---The last page you want me on?
PN390
I am sorry, my fault?---Okay, yes. Yes, right.
PN391
So why is it that you prefer working under the workplace agreement than under the award?---Because I've always made my own arrangements when I've got a job.
PN392
Yes?---I'm earning something like about 13,000 a year more than what I was earning at BOC and I'm just quite happy with the way I'm treated there. So that's - as far as I'm concerned, that's fine, but you can only go to the well so long - so many times, you know, and eventually it dries up. It's only a small company.
PN393
It is a small company, as I understand. Are you aware about the recent change of Government in Western Australia?---Yes.
PN394
Are you aware that the ALP has taken quite a detailed industrial relations policy into that election?---I've heard about it, yes.
PN395
Perhaps if the witness could be shown - I'm not sure it's strictly necessary - U5.
PN396
You will just see in relation to that that your agreement will shortly become subject - should the legislation get passed, I say - - - ?---Mm.
PN397
- - - will shortly become subject to - page 15 - - - ?---All right.
PN398
- - - a no disadvantage test within the - by comparison to the award?---Mm.
PN399
Are you aware of that for starters?---Well, I listened to what the gentleman said there earlier that it was going to run out to the end of the contract and that was going to be the end of it. I would imagine - - -
PN400
How would that affect you?---Well, I'll sit down and negotiate with the people that employ me. It's as simple as that.
PN401
I've got no further questions for this witness.
PN402
THE COMMISSIONER: Anything further, Mr Uphill?
PN403
MR UPHILL: There's no re-examination, Commissioner.
PN404
THE COMMISSIONER: If I can just clarify one thing, Mr Hood. In relation to the comparison document that Mr Duffin took you to - - - ?---Yes.
PN405
- - - and highlighted from his point of view that there was something like a difference of $1100 per fortnight - - - ?---Yes.
PN406
- - - between what applies under the agreement and what would apply under the terms of a Federal award, taking into account penalty rates on the log that would apply?---Yes.
PN407
Part of the response that you made to him was that it might be a question of going to the well too often?---That's right.
PN408
Now, do I take it from that comment - and correct me if I'm wrong - that you're expressing a concern that if the wage level was increased to something like $3300 a fortnight that you think your job might be in jeopardy?---No, it's not that at all.
PN409
What is the concern?---I just think that the hours you get - they start cutting the hours then and you don't make that sort of money anyway. It's quite easy to put on another driver and you both work 35 or 38 or 40 hours a week.
PN410
Do you think they would cut your hours - - - ?---I don't know.
PN411
- - - in that circumstance?---I don't know, but I've got to look at these sort of things. I've got to look after myself.
PN412
Yes?---I've been in business before and I know what it's like. I've owned a service station and I know what happens when people put pressure on you and give you a hard time. So you just alter the rules. You bring in somebody else. It's quite simple being done. I'm looking after myself and I'm happy with what I've got.
PN413
And that if there was any change, an upward change in terms of the income that flows to you - - - ?---Well, that's fine.
PN414
- - - you think there would be - if that was forced on the company by being made respondent to this Federal award, that that would impact on your situation?---Well, I'm not sure. I don't know how Mr Quackenbush's situation is with the company. I don't know how much the company can handle but it's only a small company. It's not Shell or BP.
PN415
You don't want to test that?---I don't want to test it, no, because I want to keep my job. I'm too old to start looking again and I know at my age it's pretty hard to find them. So - and like I said, I'm treated right, so what's the problem.
PN416
PN417
THE COMMISSIONER: Yes.
PN418
MR UPHILL: Commissioner, if I could ask that Mr Jack Longthorne be called to give evidence?
PN419
THE COMMISSION: State your full name and address, please.
PN420
PN421
MR UPHILL: Mr Longthorne, you're employed as a truck driver by Peak Petroleum?---That's correct.
PN422
When did you start with the company?---The 2nd of April this year, 2001.
PN423
Your employment is covered by the terms of the workplace agreement?---Yes.
PN424
Can you tell me about the employment interview that led to your being offered a job with Peak Petroleum? What was discussed?---The rates of pay were discussed and the fact that I would be signing a workplace agreement was discussed and I was happy with that at that time.
PN425
Was the discussion with Mr Ian Winn, the Transport Manager?---Yes.
PN426
So he showed you a copy of the workplace agreement?---Yes, he did.
PN427
Did you read through it there or later or?---I read through it there and then, yes.
PN428
When did you sign the document?---On that occasion.
PN429
On that occasion. Did you have any questions about the document?---Not that I can recall, no.
PN430
Were you offered the opportunity to take the document away?---I believe I was, yes.
PN431
But you didn't have any difficulty with the document so you didn't decide to take it away. You were happy to sign it there?---Yes.
PN432
I presume you understood what was in the document?---I did.
PN433
At the time were you aware that people covered by awards get overtime?---Yes.
PN434
At the time were you aware that people on awards usually get something extra for working nights or weekends?---Yes.
PN435
Your workplace agreement has a flat hourly rate in it, doesn't it?---That's correct.
PN436
Do you want your workplace agreement to continue?---In answer to the question I want to keep a job basically and in order to keep a job I feel that I need to keep the workplace agreement.
PN437
Can you explain that to me, how you got that view?---Well, I'm 56 years of age and I was grateful to get a job. I've been waiting 8 months for a job in the haulage industry and I was happy to sign the agreement because I needed full-time work.
PN438
What hours do you work at the moment approximately per week?---Approximately from 7 am to 9 pm.
PN439
How many days a week?---5 days a week at present.
PN440
You're comfortable with those hours of work?---At present, yes.
PN441
Would you like to work more hours?---No, I wouldn't.
PN442
Thank you. No further questions?---Thank you.
PN443
PN444
MR DUFFIN: Just in relation to - a couple of quick questions - what is the weight of the truck that you actually drive when fully loaded?---I estimate the weight to be 40 tonne.
PN445
You work Monday to Friday 12 hours a day?---We work on a rolling basis. We work - the operation runs 24 hours and obviously I'm called upon on occasion to work Saturday, Sunday.
PN446
But that's a rare thing. As a general - - - ?---No, it's not rare. It's a rolling procedure whereby - - -
PN447
Your shift comes up?---Yes, yes basically, on a sort of 5-day roster.
PN448
Would you work more than 60 hours in that situation or is it 7 to 9?---From time to time it does occur that we work more than 60 hours, yes.
PN449
Now, my friend asked you some questions in relation to your workplace agreement. As you understood it was it a term of you getting your job that you sign the workplace agreement?---No, I wouldn't say that, no.
PN450
Was it a pre-condition to you getting the job?---It's really hard to say. I mean, I didn't know I was obviously going to be put in this position now when I went for the interview for the job and I was quite happy on that occasion under the circumstances to sign the agreement. It was voluntary.
PN451
Yes, fundamentally it was because it was a job?---Basically yes, yes.
PN452
And part of the job was that this is the terms that we work under. You get this agreement. You work for $16 an hour as many hours as you want and this is the agreement?---In a manner of speaking, yes.
PN453
Yes, okay. Now, were you aware that there was a recent - obviously you were aware that there was a recent change of Government in Western Australia. Were you aware that the Labour Party took quite a detailed industrial relations policy to that election?---Yes, I do follow the news.
PN454
Again, I ask that the witness be shown U5, I think it is?---Thank you.
PN455
If you look at page 15 - you've actually got my copy so I - - - ?---Yes, okay, I've got it.
PN456
There's quite detailed comments there about the nature of your workplace agreement. Can I just get you to read out 5 and 6 there? I think it's numbers 5 and 6?---5 and 6 are not on page 15.
PN457
THE COMMISSIONER: They go over to page 16.
PN458
MR DUFFIN: Sorry, it's page 16?---Yes, okay, 5 and 6:
PN459
The WA IRC will establish objective criteria for the registration process -
PN460
I'm sorry, my fault. It's at the top of that page?---Right, okay.
PN461
No, that was my fault?---
PN462
Continuing WA WAS must equal or better the remuneration package for the applicable award as measured by the no disadvantage test required for the registration of an EEA.
PN463
Right, just stop there. Now, do you understand that what that means is that the Government's intending to ensure that workplace agreements such as your's will be subject to a relevant award?---I understand that now you've explained it to me, yes.
PN464
Now, you will also see - in your examination-in-chief you indicated that you commenced on 2 April 2001?---Yes.
PN465
That's obviously after 21 March 2001, isn't it?---Yes.
PN466
If the witness could be shown U6?---Thank you.
PN467
Now, this is a media statement from the Minister for Labour Relations in Western Australia. If you look at the very first line it says that:
PN468
Workplace agreements registered after today -
PN469
that's after 21st of the 3rd 2001:
PN470
will be valid for only 6 months.
PN471
?---Yes.
PN472
Were you aware of that?---I wasn't aware of it at the time I signed the agreement, no.
PN473
No. That doesn't surprise me but now that you are that would make your workplace agreement effective only for 6 months according to this media statement, wouldn't it?---Yes.
PN474
Now, I just want to show you a couple of things in relation to minimum conditions that exist in Western Australia generally. If you look at T5, now you find on that first page there the minimum conditions of employment - or minimum rates of pay and on a per hourly basis it's $10. Now, your wage rates are quite in excess of that, aren't they?---Yes.
PN475
If you go on to the following page there's a number of minimum conditions beginning sort of three quarters of the way down the page. It's 4 weeks annual leave. You receive that at the present time under your agreement, don't you?---Yes.
PN476
So your agreement doesn't actually provide you anything in excess of what you would get as a minimum entitlement within Western Australia anyway. Is that correct? Perhaps that's not a question for you. Your agreement also provides you with 80 hours sick leave. Is that right?---80 hours did you say?
PN477
80, eight zero?---Yes, I believe it does.
PN478
Okay and 2 days pay bereavement leave?---Yes.
PN479
Do you get parental leave should you require it after more than one year's service with the company?---Well, I don't think it's applicable to me but without actually going back and fully reading the agreement I can't answer all these questions explicitly.
PN480
Yes, all right. Look, I won't pursue that any further, other than to say look, is there anything else in your agreement that you recall other than the fact that it provides you with a job, which is to your benefit in excess of those minimum conditions that I've just sort of taken you to?---No, the only thing that I may do is retract the statement that I made regarding U6, the first paragraph:
PN481
Workplace agreements registered after today will be valid for only 6 months after major legislative changes later this year.
PN482
On reflection I think that I may have read that but I can't actually remember because obviously I didn't know this was going to happen.
PN483
Look, that's fair enough. I'm not trying to draw too much out of that?---Okay.
PN484
The one question - I don't know whether you recall this, but in your workplace agreement there's a disputes resolution procedure?---Yes.
PN485
In that disputes resolution procedure you and the employer can choose an independent arbitrator to deal with dispute, can't you?---Yes.
PN486
Do you recall how costs are to be apportioned in the event of that?---I don't recall, no, no.
PN487
Would it surprise you that costs were to be apportioned on a 50/50 basis between you and the employer?---Yes, it would surprise me.
PN488
Is there access to - again, from what you recall - is there access to an independent arbitrator on a cost-free basis such as the Western Australian Industrial Relations Commission?---I wouldn't know without looking into it.
PN489
That's okay. Now, look, I've prepared - I've done a comparison between the Federal award and your workplace agreement. This is at T3?---Thank you.
PN490
Now, again, based on the sort of truck you are driving, you are working a 120-hour fortnight. You're probably under the 6 months. For comparison purposes that's probably the best example I've got. So if you go to the fifth row on that front page?---Yes.
PN491
The 120-hour fortnight?---Yes.
PN492
At the present time you would be receiving fortnightly about $1920. Is that about correct, gross?---A fortnight.
PN493
Yes, a fortnight gross?---Yes.
PN494
Now, on the following page if you go to the fifth row again, the 120-hour fortnight under the Federal award which we are using as the comparison purpose here today, if you go to the final column, which is the total fortnight ..... package - - - ?---Yes.
PN495
- - - you get $2684. So there's a difference of about $600 a fortnight gross?---Yes.
PN496
Obviously under those circumstances would you prefer the agreement or the award?---Can I answer that question in a roundabout way?
PN497
That's what I would encourage you to do?---Right. I've been self-employed, worked for myself for 30 years and I understand the employer's point of view and I realise that the extra money involved in paying employees is a drain on the profit margin of the company. I've only just become an employee after 30 years and I'll repeat again that I was happy to be in a job at 56 years of age and obviously the extra money is attractive but I do want to remain in a job and I'm worried that if I go for the higher income then I may be out of a job.
PN498
Are you worried about the number of hours that you would receive should this application succeed?---I'm worried about my hours being reduced and consequently my income being reduced, yes.
PN499
Is that a major - is the major reason why you would say that you are concerned - well, sorry, is the major reason why you say that you answer the question in a round-about way is a concern for your employment on an ongoing basis?---I've got to be diplomatic, I've got to be diplomatic.
PN500
Sorry?---I've got to be diplomatic.
PN501
Yes, I'm aware of that?---I was always brought up to believe: don't bite the hand that feeds you.
PN502
I think that is a noble ambition?---Okay. I'm from the old school.
PN503
Yes. Well, look, just a few further questions for you: is carting fuel relatively dangerous work as far as driving goes, or truck driving goes?---Carting fuel in Perth is extremely dangerous because of the attitude of other road users.
PN504
Would - in those circumstances, does the number of hours that you have to work to maintain your wage affect your ability to do it safely?---Obviously the more hours a person works the more fatigued that person will become.
PN505
So potentially it does influence the degree to which - - - ?---It must - there must be a factor involved there, yes.
PN506
All right?---Yes.
PN507
Now, under the Federal Award there's payment penalty rates for doing hours outside of - - - ?---Yes.
PN508
- - - sort of, usual hours, I guess. Would you be - would the payment of penalty rates be something that would attract you to a Federal Award?---Yes - - -
PN509
Taking away - - - ?---- - - yes, it would.
PN510
Okay, in your view again, are rest periods and/or meal breaks adequately catered for within your employment with Peak?---It's difficult because of the nature of the work we do. If a - if a station's running out of fuel then we need to get there and get the fuel into the tanks so they can carry on trading, so from time to time there are pressures on us to get the job done within a certain time frame.
PN511
Just a last question: in your relation to your concerns about your ongoing employment or the number of hours - - - ?---Yes.
PN512
- - - has management made it clear to you or even suggested to you that should this application be successful here today that they would be seeking to reduce your hours and/or put your employment at risk?---It wasn't stated that our employment were put at risk, no, but, yes, there maybe a reduction in hours because of the agreement.
PN513
Okay, I've got not further questions, Commissioner.
PN514
THE COMMISSIONER: Mr Uphill, anything further?
PN515
PN516
MR UPHILL: Mr Longthorne, you were asked about how dangerous it was carting fuel in Perth?---Yes.
PN517
I wonder if you could give some thought to what are likely to be the causes of any accident while carting fuel in Perth, and you mentioned things like other road users and fatigue. Do you also consider other factors, weather or other things, in - give us some assessment as to what you think the most likely cause of an accident versus the least likely causes of accidents?---Fatigue, speeding, wet road conditions, fog.
PN518
THE COMMISSIONER: Perth does not get fogs?---I think it does. I've got to speak the truth here, haven't I, hey? It does when I'm working, anyway.
PN519
MR UPHILL: So what would you see as the most important considerations when driving that you need to be aware of so as to avoid an accident?---Concentration. Concentrating on the task in hand.
PN520
Okay, thank you.
PN521
THE COMMISSIONER: I've - I've got no questions for you, Mr Longthorne. Your evidence has been more than helpful and open and I thank you for that. In the context of the proceedings that we have here today what we really require is the openness and the honesty that you have distributed - or exhibited to us and I thank you for that, you are excused?---Thank you, Commissioner Eames. Thanks, everyone.
PN522
MR UPHILL: Commissioner, I'm conscious of the time - - -
PN523
THE COMMISSIONER: Yes.
PN524
MR UPHILL: - - - but there's also one witness that is out in the waiting room that wants to get back to work - - -
PN525
THE COMMISSIONER: Let us deal - - -
PN526
MR UPHILL: - - - and I envisage will only be fairly short, so - - -
PN527
THE COMMISSIONER: Yes.
PN528
PN529
MR UPHILL: Mr Howting, you are a truck driver employed by Peak Petroleum?---Yes.
PN530
When did you start with the company?---A month ago.
PN531
A month ago, so some time in May?---Yes, I think it was 13 May, I think, to be exact.
PN532
Okay, and can I ask what vehicle you operate, or what run you do?---Well, I drive both trucks, the - - -
PN533
Both the gas and the - - - ?---No, I haven't done gas, no, I've just been driving the road train and the Mitsi.
PN534
Okay. The job offer was made to you by Mr Ian Winn when you first started with the company?---Yes.
PN535
Okay, do you recall what was discussed at the time of the job being offered to you?---Yes, well, he just said, you know, I'd be a delivery man around town and now and again do the road train work. Just give Paul a break and I'll do a trip.
PN536
Give Paul a break you said?---Yes, if Paul's on the road train.
PN537
Right?---Yes.
PN538
Okay. That primarily goes to Kalgoorlie, is that right?---Yes.
PN539
Okay. At the time of that employment interview, was the Workplace Agreement discussed?---Yes, yes.
PN540
Okay, can you tell us what - what was discussed between you and Mr Winn?---Well, we just read the - got the paper there and he just asked me to sign it and I'd seen one of those before, so I was happy to have a job, to get a job, because I lost a job and at my age, well, you know you've got to grab anything while you can and I like the industry, I like doing the job, so I signed it.
PN541
So you have worked in the industry before?---Yes.
PN542
On the basis of a Workplace Agreement?---Yes, yes, yes.
PN543
How long did you work on the basis of a Workplace Agreement?---Well, the Workplace Agreement didn't come till the last 5, 6 years with the last company but before that, yes, it was just normal pay and nothing before till the rules come in. That's when we decided - my ex - have the Workplace Agreement.
PN544
By the time you signed the Workplace Agreement with Peak Petroleum you would have been aware that people on awards receive overtime, is that correct?---Yes, well, I just - well, yes, yes, it's the same, yes.
PN545
The Workplace Agreement involves a flat hourly rate of $16 an hour, does it not?---Yes, that's right, yes.
PN546
You'd be aware also that people on awards usually get something extra for working weekends or night?---Yes.
PN547
You work on weekends?---Yes.
PN548
Occasionally?---Yes, occasionally, yes.
PN549
You work at night?---Yes, I do a little bit late, well, you know, until midnight, yes.
PN550
What - what hours - - - ?---It all depends what truck - when the truck comes from the gas - - -
PN551
Right?---- - - when the - sometimes it's a bit late or something like that, but, yes.
PN552
So what hours on average would you work per week, approximately?---Well, I only just started a month ago. At the moment I'm averaging about 13 - 13 hours a day.
PN553
Okay. How many days a week would you be working?---6 days.
PN554
Can I ask you whether or not you want the Workplace Agreement arrangements to continue?---Well, I really don't know, no. Yes, I would say so, yes. Yes, yes.
PN555
Thank you, no further questions.
PN556
PN557
MR DUFFIN: You commenced work on 13 May, or thereabouts, that is right?---Yes.
PN558
Now, I think you were in the Commission earlier when my friend was talking about the Labor Party's policy, is that right?---Yes.
PN559
If the witness could be shown U6, again? Or rather, this time. U6. Now, this commences by saying - it is a media statement from the Minister for Labour Relations here in Western Australia. It commences by saying that:
PN560
Workplace Agreements registered after today will be valid for only 6 months.
PN561
Are you aware of that?---No, I wasn't, no.
PN562
All right, so your Workplace Agreement will only be valid for a total of 6 months, according to this should the legislation pass. If he could now be shown T5, I think it was? Or U5, sorry, my fault. Go to page 16, points 5 and 6 are relevant and, importantly, the first point is at 5, which says that:
PN563
Any continuing Western Australian Workplace Agreement must equal or better the remuneration package for the applicable award as measured by the no disadvantage test.
PN564
Were you aware of that?---No.
PN565
Okay. Now, it also goes onto say at 6 that:
PN566
Enforcement of equivalents to minimum award standards payment may be initiated immediately by an employee.
PN567
I take it you weren't aware of that, either?---No.
PN568
All right. Now, when you made the agreement, the Workplace Agreement, was it a term of your employment that you sign that agreement? This is - you know, this is how you get your job, this is the terms of your employment?---Yes, well, I was just lucky to get a job, you know, at my age and you can't be beggars or choosers, really.
PN569
Were you given any opportunity to negotiate the agreement or it was a - - - ?---Yes, yes, I had plenty of time but I was just as happy to get a job as to - - -
PN570
Just happy to get a job?---Yes.
PN571
Were you given a copy of the Federal Award or do you know what - the Federal Award standards at all?---No.
PN572
If the witness could be shown T3? If you look at - you were saying that you are working 13 hours a day, or thereabouts, 6 days a week, is that right?---Yes.
PN573
That is about 70-odd hours a week? If you go to the second last row on that front page, now, you are receiving about $2000-odd a fortnight gross?---A fortnight?
PN574
Yes, that is right?---Yes.
PN575
About $1000 a week, more or less?---Yes.
PN576
Right. Now, if you look at the third page, that will be the final page on that document, that is the second row from the bottom, that is the more or less equivalent provision within the Award that we are dealing with here today. If you go to the right-hand column you'd be earning $3300 plus leave-loading and meal allowances. Were you aware that was what the Award paid for working, sort of, 70 hours a week?---No, I wasn't.
PN577
Does it surprise you?---It has, yes.
PN578
Had anyone, sort of, previously shown you anything like that?---No.
PN579
Now, when my friend suggested to you that you wanted to work under the Workplace Agreement, in a perfect world, if there was no possibility of you losing your job or having your hours cut, would you prefer to be working under the Workplace Agreement or the Award?---Well, that's - well, I'm quite happy as it is now, I don't want to lose me job, but, well, Jeez, course I want more money.
PN580
I know, it is a somewhat - - - ?---Everyone does.
PN581
It is a somewhat artificial question, I'm willing to accept that, but nevertheless, in a - in that sense - - - ?---Yes.
PN582
- - - that would be correct, wouldn't it?---Yes.
PN583
All right. Now, look, just in relation to your Workplace Agreement, now, I presume you haven't read it for a while, although it has only been a month or so, is that right?---Mm.
PN584
Have you seen the - well, the Minimum Employment Conditions Act in Western Australia provides minimum conditions for all employees in Western Australia. The minimum number of weeks of annual leave is 4 weeks under that Act, that is what you get in your Agreement, isn't it?---Mm.
PN585
All right, and the minimum amount of sick leave in that Act is 80 hours per annum, which is what you get in the Agreement, as well. There's a disputes resolution procedure within your Agreement, do you recall that?---No.
PN586
Do you remember a procedure which says that in the event of a dispute the employer and the employee may choose for an independent arbitrator to deal with the dispute?---You lost me there, sorry.
PN587
All right. One of the clauses in the Agreement - and if you can't remember, just say so - - - ?---Yes.
PN588
- - - and I will move on - there is a clause which says that in the event of a dispute the employer and the employee have the right to go to an independent arbitrator, do you recall that at all?---Yes, yes.
PN589
Right, do you recall the nature of the costs distribution between the independent arbitrator who would pay the costs of the arbitrator?---No.
PN590
Okay, do you recall whether you have access to a cost-free jurisdiction such as the Western Australian Industrial Relations Commission?---No.
PN591
Now, in relation to the - just in - the last couple of questions - in relation to the number of hours that you are working, you are working about 70 per week at the present time?---Mm.
PN592
Has anyone said to you that if this application was successful here today that your hours might be reduced to, say, 35 hours?---Yes, well, I like - I want some money, that's for sure, I, sort of, I want to work, that's - you know, I've only got another 6 years and I have to retire and I needs a bit of money, so every hour counts.
PN593
If - well, at the moment, you are earning $16 an hour?---Mm.
PN594
Under the penalty rates time and a half would apply after the minute - if you worked subject to the Federal Award time and a half would apply for the hours immediately - immediately succeeding the 7 hours a day, so let me - let me just make a relatively, sort of, straightforward comparison. At the present time you are working about 70 hours to earn your $1000, or thereabouts, per week. Under the Federal Award, to earn that same amount you would probably only need to work around about 60 hours per week. Would that option be something that interests you, essentially working a slightly lesser amount for a slightly higher pay level?---Well - well - well, yes, I would like to have a little bit more time off but it means you've got to - yes.
PN595
Is carting fuel relatively dangerous work as far as truck driving goes?---It is, yes.
PN596
In the absence of penalty rates and situations where you get paid extra for working the large number of hours, do you find that you have to work more hours to make a reasonable wage?---Yes, you do.
PN597
Are rest periods and/or meal breaks adequately catered for - - -?---Yes.
PN598
- - - at the present time?---Mm.
PN599
Is fatigue an issue for drivers generally?---You have your breaks, but where there is fuel going like that - alongside the - when you are unloading, you are not driving, you are just standing around, you know, you are relaxed there, you know, it all depends if you are going to long distance like Kalgoorlie and somewhere like that where you definitely got to stop and to have a break but when you are around town delivering, yes, those breaks are good.
PN600
Now, my friend asked you, almost as his final question, was whether you would prefer to be under the workplace agreement or the award and you replied, "the workplace agreement". Was that fundamentally because you are concerned about the number of hours that you would get if the award came into play?---Yes.
PN601
And is it fundamentally about your concern about your employment status in an on-going way?---Yes.
PN602
So if those two matters were taken out of the equation, would you prefer the award or the workplace agreement?---I prefer the award, yes.
PN603
Right. I've got nothing further.
PN604
THE COMMISSIONER: Mr Uphill, anything further?
PN605
MR UPHILL: No, there is nothing further, Commissioner.
PN606
THE COMMISSIONER: Thank you, Howden, you have been very open and straightforward in answer to the questions that have been put to you. I'm conscious that this is somewhat awkward for all of the employees involved and I appreciate your frankness and openness. Thank you.
PN607
THE COMMISSIONER: We will take the adjournment at this stage and resume at 2 pm.
LUNCHEON ADJOURNMENT [1.15pm]
RESUMED [2.01pm]
PN608
THE COMMISSIONER: Yes, Mr Uphill.
PN609
MR UPHILL: Commissioner, there is one further witness I would like to call, that is Mr Wayne Dunphy.
PN610
PN611
MR UPHILL: Mr Dunphy, you are a truck driver employed by Peak Petroleum, is that right?---I am.
PN612
When did you start with the company?---March last year.
PN613
March last year, and you currently want this confrontation?---Yes.
PN614
Okay. Can I cast your - can I get you to cast your mind back to approximately March last year when you gained employment with Peak Petroleum. Do you recall a discussion, possibly with Ian Winn about your employment and the conditions under which it would be offered to you?---Yes.
PN615
Can you tell us what was discussed between you and Mr Winn?---Yes, I was just being made redundant in my last job, cleaned up and said that we had - I could be fitted in at a $16 an hour flat rate and I accepted it.
PN616
How did you come to learn of the job available with Peak Petroleum?---I had been - been with the previous company beforehand so, sort of, we all knew each other.
PN617
Right. So you had been involved in fuel carting before?---Not fuel, but oil.
PN618
So you were offered a job and you were aware it was on the basis of a workplace agreement?---Yes.
PN619
Did you read through the workplace agreement when the job was offered to you?---I did.
PN620
Did you take the agreement away to have a look at or sign it then and there?---Took it away.
PN621
Right?---Had a few reads of it over a few days and then talked to the wife and said: yes, we were in agreeance with this.
PN622
Did you have any questions about the workplace agreement?---No, none at all.
PN623
Have you worked under the basis of a workplace agreement before?---Flat rates, yes, I had, years ago and I found it to be very easy.
PN624
So working on a flat rate again was no great surprise to you?---It is the easiest way possible of knowing what you are going to get at the end of the day.
PN625
So notwithstanding the fact that you had been offered a job on the basis of a flat hourly rate, were you aware that people covered by awards generally get overtime?---I had - the job previous to starting with Peak, I was on a salary so - and I was doing sort of, 80 hours a week and with no overtime anyway, so.
PN626
Right, okay. When did you go off on workers compensation?---August - end of August last year.
PN627
August last year. So you worked for the company about 5 months?---Yes, 6 months, yes.
PN628
Okay, right. While you were working for the company, what truck or route did you operate on?---Driving the road train?
PN629
Mm?---Doing Kambalda run, taking fuel up to the mine, delivering on the way to Kambalda and then on other days, around town.
PN630
What sort of hours were you working? Did it vary?---Yes. It did vary to whatever it took to get the job done, but you know, I think at the time of the accident, it was down to about 70 hours a week.
PN631
Did you normally work Monday to Friday, or weekends, or how did it work?---Different days, dependent on when the mine was running low on fuel. They were the governing factor, so some weeks you would have a Sunday off or a Saturday off and some weeks you would have may be a Tuesday or a Wednesday.
PN632
How did you find that arrangement?---Yes, it is fine. My kids are all grown up and so it was good.
PN633
Your current employment on the basis of the workplace agreement, do you want that to continue on the existing arrangements?---Yes, I'm quite happy with that.
PN634
Thank you, no further questions.
PN635
THE COMMISSIONER: Mr Duffin?
PN636
PN637
MR DUFFIN: I don't know whether you have got a copy of your witness statement with you? I presume you don't?---No.
PN638
Do you recall making it?---Yes.
PN639
Now, that statement is in the same terms as the other statements that were made by employees in this matter. What was your input into making that statement?---For signing this?
PN640
That is right?---This was more or less just to re-assert that I'm happy with the agreement.
PN641
That is not quite what I asked. I guess, perhaps if you could just tell me how it was that statement came into existence. Were you rung up? Did someone say to you, you know, what do you think of this? Was all this presented in front of you as a written document?---On the day, as I was dropping of a continuation for workers comp at work, and Ian said, well, you know, there is something here you can sign if you want to. So having a read of it, I said yes.
PN642
Okay, that is all right. So did you discuss the terms with him or were you given the opportunity to vary the stuff in any way?---No, because I was happy to sign it.
PN643
Were you given a copy of the Federal award that this proceeding is about today, prior to making that statement?---No.
PN644
Are you aware of the terms of that Federal award?---To know it most probably creates dissension in the ranks anyway, so it was better to stick with the one that I liked.
PN645
So when you say that in that statement that you are happy to continue with the current arrangements, in essence, you are happy to continue with the current arrangements to avoid dissension?---What the left hand doesn't know the right hand doesn't miss.
PN646
So it is better not to know about things?---Well, if you are happy doing something, why would you change?
PN647
Because the answer to that is there are always other ways of doing things better. Mere sitting behind and just sort of saying, well, look, you know, this is good enough for me, is one thing. I guess what I'm asking you is, did you know of what the alternative was prior to making that statement?---I was - in the previous employment before becoming redundant from there, I had - it was just brain wreaking. You had to think for 7 days a week, every hour of the day you were awake, so to come from that to this for $16 an hour and just sit there and for someone to tell me what do to for a change, was heaven, so I really wasn't going to rock the ship.
PN648
So you were quite happy just - - -?---Look, I was ecstatic.
PN649
It was a job where you could leave your brain at the door, sort of thing?---That is right, turn it off, yes. Turn the key on and turn the brain off.
PN650
Well, was there any suggestion to you at the time that you made that statement that the numbers of hours might be cut for employees if this application here today was successful?---No.
PN651
Not to your knowledge, or not to you?---No, because I was only going in and out.
PN652
All right, well, since that time, more recently, had there been any suggestions to you should this be successful, your hours would be cut?---Yes.
PN653
Is that a major reason for you taking the view that you are comfortable with the current conditions?---No, no.
PN654
All right, well, we will come to that in a second then?---Even a 38 hour week would still give you over the minimum wage driving that truck. It would still be over the $400 in the hand which is still a pretty good wicket, so you are not losing out too bad.
PN655
Was it a term of your employment that you sign a workplace agreement?---Yes, to cover both parties, yes, which was then came to the Commissioner for - - -
PN656
For registration?---Yes.
PN657
Was it something which you had to sign prior to entering your employment?---Yes.
PN658
Now, I'm not sure whether you were in here when my friend made his opening this morning, but are you would be aware that the ALP has got quite a significant industrial relations policy that took into the last election and that that policy has major changes in relation to the operation of workplace agreements. Now, if I could just get the witness to see U5 which is the ALP policy document? You will see at page 16, I think it is, towards the top on that - paragraphs 5 and 6 there will seek to significantly bolter the operation of existing workplace agreements. Were you aware of that?---I had heard months previously, yes, they were up for a 6 month renewal.
PN659
That is not quite what they are up for. According to that, what is going to happen is that the agreements are going to measured as against a relevant award for the purpose of a no disadvantage tax. Were you aware of that?---Yes, heard something about it, yes.
PN660
Now, it is likely in that context, that the flat rate arrangement that you presently have is going to alter quite significantly. Were you aware of that?---No. It shouldn't - - -
PN661
It shouldn't affect you?---No.
PN662
Why is that?---Well, it is still the - a gentleman's agreement for working, isn't it?
PN663
Well, it will be a gentleman's agreement, but it may be unlawful?---Signed by two parties? It has got to be lawful, doesn't it?
PN664
Probably. I could take you to some pretty significant stuff that suggests it is not, but that is really not what we are here for today. I just want to sort of look at your agreement. Now, I presume you don't have a copy of it with you?---No.
PN665
Do you recall the terms of it at all?---$16 flat rate, with days in lieu and holidays.
PN666
Annual leave of 4 weeks?---Mm.
PN667
I think it is 80 hours sick leave, do you recall that?---Mm.
PN668
Bereavement leave?---No, I don't think I got that.
PN669
That would be somewhat surprising because I think it is a minimum term. Do you recall the dispute resolution procedure in it?---Not off hand.
PN670
The dispute resolution procedure as I - from the agreement I've seen, and I understand that they are all identical, indicates that the employee and the employer can jointly chose an independent arbitrator. Do you recall that at all?---No.
PN671
You wouldn't recall what the cost provision appointing an independent arbitrator is?---No.
PN672
Just in relation to that agreement, besides that $16 pay rate which as you say, gives you something more than a $400 minimum wage, what other benefits are there in that agreement to you?---As in what.
PN673
Besides the wage frame, which is above the minimum condition there, do you recall any other terms or benefits in that agreement other than what we have gone through by way of annual leave or parental leave?---Yes, well, it is three strikes you are out was written up I think, from memory.
PN674
Termination clause?---Yes. Dismissal of - mutual dismissal.
PN675
From what I have seen, the only benefit above what every employee gets within Western Australia, is that $16 wage rate. There is nothing there that is in excess of the minimum conditions within the minimum conditions of employment.
PN676
Would that be right? You are entitled to say you don't know. Look, I've also got a comparison here as between the Federal Award which you would be subject to should this application be successful and the agreement that you are presently - well, would you be working at the present time, be working under. If he could be shown I think it is T3. You were saying to my friend that you were working about 60 hours per week prior to suffering your injury, is that right?---Yes, it was up and down, yes.
PN677
The 60 hour week category would be the fifth row down in Peak Petroleum, okay. That is the one that earns about $1000 per week. Was that roughly about right?---Yes.
PN678
Now, if you turn over the page, again the fifth row down, the 120 hour fortnight, the Federal Award in this instance pays about $2700. Were you aware of that?---Yes, you would be. You would have to be, yes, knowing that it is double time and all the rest of it.
PN679
The double time is for penalty rates outside a minimum spread of hours. Now, you have worked under salary conditions I understand, what do you think of penalty rates? What is your position on them?---Good if you can get it, I suppose.
PN680
Do you think that employees should be encouraged to work more hours by having a flat rate or employers encouraged to employ employees?---Are you doing the overtime just for the extra money or are you doing it to get the job done?
PN681
In many cases it would be both, I would think?---Job satisfaction comes before me.
PN682
I think there are certain members in this room who probably take a different view towards that. I would almost put myself in that category. I'm not sure that - let me withdraw that. Is it - is driving trucks, particularly fuel laden trucks, a relatively dangerous element of driving in the Transport Industry?---No, not if it's done properly.
PN683
All right. Well, let us address that then. From what you are saying - well, let us put that question slightly different then. You have got two trucks, what we would call a general cartage truck carrying supermarket goods and a fuel truck, irrespective of how good the driver is, isn't it the case that driving fuel is a more dangerous form of truck driving?---Carting fuel itself is not dangerous. Driving around with an empty barrel is.
PN684
All right. Well, let us address both of those issues. Isn't that part of - isn't driving with an empty barrel part of doing your duties?---Yes, empty it would be more dangerous than carting vegies, yes.
PN685
Okay. Now, if someone is getting a flat rate of pay, isn't it the case that for them - if money is an issue for them - isn't it the case that they have to work as many hours possible - sorry, let me rephrase that. If someone is earning a flat rate of pay, don't they have to work more hours all other things being equal than a person who might get double time or overtime were they earning the same base rate of pay?---Still comes down to the individual.
PN686
You are saying that it comes down to the individual for their job satisfaction, they would prefer to do a good job and get the money, is that right?---Yes, if you are getting both - - -
PN687
Well and good?---Yes, that is good, yes.
PN688
All right. I guess what I'm trying to get at is this. At the present time, Peak Petroleum pay a flat rate of pay per hour. If a person needs money putting yourself to one side and using someone as an example and isn't it the case that they will get less money than a person who gets overtime or penalty rates if they are doing the same 60 hours per week?---Yes, if you get the penalties, you are definitely going to get more money.
PN689
So to get the same amount of money, you wouldn't have to work as many hours?---Yes, that's right.
PN690
Okay. Is fatigue a factor within driving generally, putting to yourself to one side and using the average truck driver out there?---Yes, yes, tiredness, yes.
PN691
Okay, and doing more hours, driving more hours all other things being equal, increases fatigue?---Yes, well, being only allowed to drive for 13 hours a day with two breaks - - -
PN692
Would limit that?---Sorry?
PN693
Would limit that fatigue?---Yes. You can have as many breaks as you want in that 14 hours or 17 hours of work. So if you want to have five breaks which is an extra hours, then you can legally go to 15½.
PN694
That is right. That is not what I am - I'm not talking about what your maximum number of hours is though, all I'm asking is general principles, okay. As a general principle doing more hours is likely to increase your level of fatigue?---Yes.
PN695
A person who is on the same rate of pay, irrespective of the number of hours, would have to work more hours than a person who is capable of accessing overtime and penalty rates?---Yes.
PN696
Okay. Does the suggestion that the number of hours that you are working at present, even though you are not - let me rephrase that. Would the suggestion that you are - would the suggestion that the number of hours available for drivers would be reduced have an impact on whether you would support the award or the agreement?---No.
PN697
Okay. I've got no further questions.
PN698
THE COMMISSIONER: Mr Uphill?
PN699
PN700
MR UPHILL: Mr Dunphy, you said that in your assessment driving a fuel tanker empty is more dangerous than other sorts of truck driving, is that correct?---Mm.
PN701
Would you concede that driving a fuel tanker whether it is full or empty, requires people to have licences and extra training and qualifications than an ordinary truck driver?---Sure.
PN702
You said that fatigue may be a factor in driving a truck, is that correct?---Mm.
PN703
Can you tell me what breaks you would normally get when you were doing fuel deliveries around town?---Well, the $16 an hour.
PN704
What breaks you would get?---Oh, breaks.
PN705
What work breaks you would get?---I thought you said rates. We are going down to load up, you could be sitting down there for an hour even before you even load because of other trucks in front of you. So that would happen say once a week, maybe twice a week if you are unlucky. Every time you stop to discharge you are standing there for ½ hour and then you've still got to have your ½ hour breaks every 5 hours.
PN706
How many service stations would you deliver to in the metro area on a daily basis?---You do three.
PN707
Okay. So each of those occasions where you unload fuel, the actual process of unloading fuel means you are having a break for about ½ hour?---Yes, because all you are doing is you are just hooking the hose up and you can't leave it, you've got to stand there and be with it.
PN708
Okay. No further questions, thank you.
PN709
THE COMMISSIONER: I just want to clarify one aspect of your evidence, Mr Dunphy and it goes to what Mr Duffin was putting to you at the end of his cross-examination. In the event that this application was successful, there is the potential for award rates of pay and penalty rates and the like to then be applicable to Peak Petroleum and that may well impact - the question that was being put to you was in those circumstances there may be the possibility of an impact on the amount of time that people are required to work or the way in which they would be required to work in the future. Do you have any concerns about that as to how that may impact on you? Have you given that any thought?---I've thrown it around in my own head and what would happen are the - it would come down to split shifts on trucks where you would lose - in the long run you would lose.
PN710
Then what is your view in relation to this particular application?---Bit of a waste of time actually. Sorry.
PN711
Well, I take it in general terms, your evidence is that you are supportive of the current agreement that you have, workplace agreement that you have, that you are comfortable with the hours that you work and the rates of pay that you receive, the $16 per hour and if it was your call, you would prefer that to continue?---Yes, because if you go up into the higher tax brackets, you are losing it all anyway.
PN712
Right?---You know, so it seems - when I took the original agreement home and worked it out with a calculator and a pad and pen and it worked out that we were roughly going to get the same amount of money by the time you took all the taxes out, there was only about $100 difference. So why make someone sort of pay the extra couple of hundred just for someone to gain it. It's better to put it back somewhere else.
PN713
What was it that you were comparing the $16 an hour rate with?---Well, because previously I was on 18 an hour and I was doing that with double time and time and half and then working it back and - - -
PN714
So there were penalty rates applied in your previous appointment?---No, no, no. I was on salary previously but what I was doing was I was just working out the hours that I would be doing and then sort of do the time and half and the double time and then roughly what you would get in the hand, if it was penalty rated, yes.
PN715
PN716
PN717
MR UPHILL: Mr Ganzer, you are a truck driver employed by Peak Petroleum?---Yes.
PN718
When did you start with the company?---August last year.
PN719
Had you previously worked for the company?---Yes.
PN720
Over what period was that?---About 5 months.
PN721
You worked for 5 months for them?---Yes.
PN722
How much of a break did you have between the first period of employment and the second period of employment?---Six.
PN723
That is 6 months, okay. So your first period of employment would have ended about February of last year, is that right?---Yes.
PN724
When you previously left in February of last year, why did you leave the employment of Peak Petroleum?---Because I went to work for a bloke that was paying proper because the wages were a lot higher.
PN725
Had you previously complained to the company about - this is Peak Petroleum - complained to Peak Petroleum about the level of wages while you were engaged with him in the first period that you worked there?---Yes.
PN726
Who did you complain to?---Transport Manager.
PN727
Ian Winn?---Mm.
PN728
Okay, and what was the nature of your complaint you say to him, do you recall?---I can't recall back that far.
PN729
Did you complain you weren't getting award wages and conditions?---Yes.
PN730
Okay. So you left the company to go and work for someone else because you were unhappy with - that you weren't being paid award rates and conditions and you worked somewhere else for about 6 months, is that correct?---I worked for another bloke for about 2 months.
PN731
Okay. Obviously things didn't work out so you decided to come back and work for Peak Petroleum again?---No, things didn't work out and then I went and worked for another bloke and it didn't work out with him because his work run out and then I just rang here and one day back - it would have been June last year to see if there were any jobs going, and he said: no, not at the moment, and that was it. Then I got a phone call in August and asked me if I wanted - he said: come back and work for us.
PN732
So at the time you were told that there was a job available at Peak Petroleum you were aware coming back to Peak Petroleum would mean coming and working on the basis of workplace agreement?---It was better than getting the dole.
PN733
Okay. So at that stage you accepted that in the total scheme of things, you were happy to work on the basis of the workplace agreement?---It was job, that's - - -
PN734
You knew when you accepted the job at that time that you wouldn't be paid overtime?---The second time, yes.
PN735
I understand about a year ago you were banned from the Mobil fuel terminal, is that correct?---No, it wasn't a year ago.
PN736
How long ago was it?---Only be 6 months ago.
PN737
About 6 months ago, okay. That was because you failed to report a spill?---That's right.
PN738
Peak Petroleum made a presentation to Mobil so that you were allowed to go back and work at the Mobil terminal, is not that correct?---Yes, that's what they said, yes.
PN739
THE COMMISSIONER: Sorry, your answer to that was what?---If that's what they said.
PN740
No, you were asked what you understood was the reason?---I don't understand what - - -
PN741
Do you know why you were allowed to resume picking up fuel from Mobil?---Yes.
PN742
Why was that?---Because Mobil were in the wrong to start with. I know why but no-one else knows it. I know what happened.
PN743
It is not a trick question?---I know it is not a trick question.
PN744
When you responded to the question you indicated that might be what they said, Peak. I am in interested in your answer as to why you think you went back?---I think I went back because Mobil knew they were in the wrong with what happened.
PN745
Do you know if Peak interceded on your behalf?---Yes, I know the transport manager did, yes.
PN746
I think that is what Mr Uphill was getting at?---Sorry.
PN747
MR UPHILL: You accept that a spill occurred at the Mobil terminal that lead to you being banned from the terminal?---Yes.
PN748
You accept that you failed to report that spill?---Yes.
PN749
Mr Ganzer last month I understood you got a warning about your job performance, is that correct?---No, not about my job performance, no.
PN750
Did you get a warning about excessive use of the company mobile phone?---Yes.
PN751
You had been previously spoke to about that issue?---Yes, once before, yes.
PN752
You were warned that if excessive use continued you may face termination?---That's right.
PN753
You are aware that you existing workplace agreement protects your existing wages and conditions?---In what way?
PN754
In the sense of the existing arrangements can't be changed without agreement of yourself and the company, are you aware of that?---Not really, no.
PN755
Are you aware that you can belong to the Transport Workers Union even though you are covered by a workplace agreement?---Yes, I suppose.
PN756
Are you aware that you can challenge any termination of your employment even if you are covered by a workplace agreement?---No.
PN757
Not aware of that?---No.
PN758
Are you aware the TWU can assist you if you are terminated, even if you are on a workplace agreement?---I know they can assist you. I don't know about workplace agreements but I know the TWU can assist you.
PN759
Mr Ganzer, you signed a witness statement indicating that your employment is covered by workplace agreement, is that correct?---Yes.
PN760
You also, in that witness statement, said that you wanted the workplace agreement to continue, is that correct?---That's right.
PN761
No further questions, thank you.
PN762
PN763
MR DUFFIN: My friend has asked you a couple of questions in relation to your statement which you made, do you have a copy of that with you?---No, not with me, sorry, no.
PN764
Now, your statement is in the same terms as the other statements the other employees have made in this matter. What was your input into making that statement?---Nothing.
PN765
So what happened?---I was just told to sign it.
PN766
Who told you that?---Well, Mr Winn told me to sign it to start with but the other drivers told me to sign it so they could keep their jobs so I thought, right, no worries.
PN767
What did the other drivers say to you?---They said that if I didn't sign it they heard that they were - Mr Quackenbush was going to sell the truck and they would be all out of a job.
PN768
So what was your reaction to that?---I thought say our jobs, sign it.
PN769
Were you given a copy of the Federal award prior to signing your statement?---No.
PN770
Were you advised about the nature of this proceeding prior to signing the statement?---No.
PN771
So when you signed the statement, you did so without really knowing what the alternative was, is that right?---That's right.
PN772
There were suggestions by the other employees that management might close down. Did management themselves indicate that to you at all?---Not to me, no. Just the drivers did.
PN773
So as far as that statement is concerned, what is your views of it?---I don't agree with - now having found out all about the thing I don't agree with workplace agreements.
PN774
Well, let us talk about workplace agreements, then. Was it a pre condition to you getting a job that you sign a workplace agreement?---Yes.
PN775
Were you given any opportunity to negotiate that agreement?---No.
PN776
Was there any opportunity of varying the terms of the agreement?---No.
PN777
So in your statement when you say you freely entered into the agreement I guess what you are saying is that you had to sign the agreement to get the job, is that right?---That's right, yes. Well, that was my understanding, I had to sign to get the job.
PN778
Now, just a couple of questions. I think you were in the room when Mr Uphill made his opening statement this morning and he was talking a little bit about the Labor party's - in fact the Western Australian Government industrial relations policy. Now, if the witness could be shown U5. At page 16 you will see the requirements - number 5 and 6 there - you will see firstly the Government is intending to make all workplace agreements subject to a relevant award, are not they and that such workplace agreements will be enforceable against the award by virtue of the no disadvantage test, can you see that?---Yes, under 5 there.
PN779
Yes?---Yes.
PN780
Now, in 6, it also talks about employees being able to enforce that, can you see that?---Yes.
PN781
So clearly that Government policy is going to have quite a significant impact on how those workplace agreements operates, isn't it?---That's right.
PN782
Do you recall the terms of your workplace agreement at all?---Parts of it.
PN783
You get paid $16 an hour, is that right?---Yes, that's right.
PN784
Apart from that, do you remember the dispute resolution procedure?---No.
PN785
Do you have a copy of your agreement with you?---Outside there.
PN786
Would it be possible for - would you be willing to disclose the terms of that agreement to the Commission?---Yes.
PN787
I may seek to tender that in a little while.
PN788
THE COMMISSIONER: Do you require it now, Mr Duffin?
PN789
MR DUFFIN: Yes, I think that probably is sensible.
PN790
THE COMMISSIONER: Perhaps my associate can help.
PN791
PN792
MR DUFFIN: Now, if I can just take you to clause 12, which is the dispute resolution procedure and it basically says that any dispute will be resolved by an arbitrator and the arbitrator being a person whom the parties agree on but in the absence of an agreement will be the person nominated by the Chamber of Commerce and Industry. Then it goes on in clause 13:
PN793
Costs of arbitration is to be apportioned on the following basis, 50 per cent to the employee and 50 per cent to the employer.
PN794
That is correct, from that, isn't it?---Mm.
PN795
Now, we have done some calculations as between the relevant award and the agreement which you have got which pays you $16 an hour. Now, you drive the road train to Kalgoorlie is that right?---That's right, yes.
PN796
How many hours a week do you do?---Probably average about 70-72.
PN797
If you go to the category there which deals with 70 hours per week, which is - on the front page it is the second last row?---Yes.
PN798
You will see what the total fortnightly salary package is for somebody doing that work and that would be $2000 per fortnight, is that about what you are receiving at the present time?---That's about right, yes.
PN799
If you go over to the final page, second last row there, you would be receiving about $3300?---Mm.
PN800
Were you aware of that?---Only after talking to the union.
PN801
Now, on the whole, would it be your preference to be covered by the award or by this agreement?---By the award.
PN802
No further questions, Commissioner.
PN803
THE COMMISSIONER: Thank you. Mr Uphill, anything further?
PN804
PN805
MR UPHILL: Mr Dunphy, you said that - sorry, Mr Ganzer, I am getting confused with the previous witness - Mr Ganzer, if you were given a choice between the award and the current workplace agreement with the same hours you are currently working, you have indicated you prefer the award, is that right?---That's right.
PN806
Well, most people would. Do you concede if the company operated on the basis of the award that there may be a need to change the methods of operation?---Yes, we would do less hours.
PN807
If you did less hours, would you still prefer to work on the award?---Yes.
PN808
Do you also make room for the possibility if the award applied, the company may well have less trucks and less drivers?---That's why - yes.
PN809
You still say you prefer the award to apply?---That's right.
PN810
Even if there were less truck and less drives?---Yes.
PN811
That is assuming you were still one of the drivers left at Peak Petroleum?---That's right, yes.
PN812
You would have a different view if you weren't one of the driver's left at Peak Petroleum?---Yes.
PN813
Yes, okay. Now, you said you were asked by Mr Winn to sign the witness statement that you ultimately did sign, is that correct?---That's right.
PN814
You said that you were also asked by drivers to please sign the witness statement?---Yes.
PN815
I assume that it was the latter influence, namely the drivers persuasion that caused you to sign the statement?---Yes, well, that's right.
PN816
So it wasn't because the company put pressure on you to sign the witness statement?---Well, I was under the impression that they had put pressure on them.
PN817
Thank you, no further questions.
PN818
THE COMMISSIONER: The only questioned I wanted to just clarify, in relation to the witness statement you signed, it was dated 21st and the others were all dated on 20th. It was suggested earlier in the proceedings that it may have been because you were on the Kalgoorlie run. Was there some reason why you - - -?---Well, I was thinking about it.
PN819
- - - signed the following day?---Because I was thinking about it.
PN820
So what were the circumstances when this was broached with you? What happened? Did Mr Winn ask to see you?---No. I just came in in the morning, the next morning, and the driver's had rung me and told me - I hadn't been handed this on 20th, this was handed to me on 21st - the other drivers had rung me and told me that, you know, we have got this thing to sign, if I don't sign it we are going to lose our jobs, they are going to sell the trucks, rah, rah, rah. So I went in there and the first thing you go see Ian to get your runs and everything and he said, "You've got to sign this." So just yes, righto.
PN821
Are you saying that is how it was put to you?---Yes.
PN822
As part of your getting your assigned for the day or the week or whatever it was, in addition Mr Winn said that you have got to sign this?---He just said, "You've got to sign this here."
PN823
What was your response to that?---I knew what he was going to hand me to sign. I didn't read it.
PN824
You expected to be given it?---Yes, I expected to be given it after the boys - the blokes they told me what was coming.
PN825
Did you query signing it or made any comment?---I made - I said, "Well, what's this?" Ian said to me, he said, "Just sign it and you'll be right." I just said: "Righto." I said, "Is he going to sell the trucks or anything?" and Ian didn't answer back or anything.
PN826
Thank you. I've got no further questions. Nothing arising? If not, I was going to suggest you might have prejudiced yourself by wearing the top that you have got on as a Swan supporter but I have decided to let that go through to the keeper. Thank you for your evidence. It has been forthright and open. I appreciate that, Mr Ganzer.
PN827
Yes, Mr Uphill.
PN828
MR UPHILL: Yes, sir. I think that concludes the number of witnesses that I wanted to include as part of our case, and I pause there
PN829
MR DUFFIN: Commissioner, just before I commence my opening I had spoken to Mr Ganzer about providing that agreement to you. There are confidentiality provisions within the Workplace Agreements Act. So I have really tendered, or sought to tender it really more for your information the confidentiality provisions do have exceptions for the purposes of Court proceedings but not necessarily Commission proceedings.
PN830
THE COMMISSIONER: In fact what I will do in those circumstances is whilst I will mark the exhibit I will place it in a plain sealed envelope on the Commission's file. If it was necessary to be referred to in any other proceedings then the Bench, as I assume it might be, can determine what they want do with it at the time.
PN831
MR DUFFIN: I guess we all hope that it does not come to that Commissioner. Commissioner, just by way of an opening, you in may ways have heard much of the evidence that is going to be called in this matter so perhaps I should really just address some of the submissions that Mr Uphill made to you this morning. I will be providing more detail in my closing submissions so in one sense this is really just to try and give you a flavour of where we are coming from.
PN832
We would certainly agree with Mr Uphill that as matters of law that the first decision that Mr Uphill provided to you the AMOU case, that the Full Bench has indicated that the onus is upon us to satisfy the Commission that it is in the public interest not to cease dealing with this proceeding. In one sense that is fairly clear from the words of the legislation but it does seem to me as a matter of law come out of that decision. We would also agree with the three propositions put by Mr Uphill in relation to the Rockingham case, namely, that Western Australian Workplace Agreements are State enterprise agreements. Indeed we have already conceded as much.
PN833
We agree also that primary consideration is to be put on the views of the employer and employees. We further agree that if the views of the employer and employees are unanimous that they prefer State employee agreements to continue then any public interest consideration must be one of some substance. That comes directly out of the Rockingham decision. Now, leaving that to one side we do depart fundamentally in the submissions of the employer in relation to the State Award. We do so and we say that it is quite a furphy for them to bring this up at this stage. We say so for two reasons. The first reason is we say that the Commission has indicated the State award which is brought up in these sorts of proceedings must be one that is actually governing the terms and conditions.
PN834
SDP Drake in a decision, if I can hand up to you in Theatre Managers Association v Greater Entertainment Proprietary Limited. This matter was faxed to me at lunch, hence the absence of page numbering, but if you go to the sixth page, the penultimate page that what is talked about here is the State award referred to in this decision is not such - this is three-quarters of the way down the page:
PN835
Governance is a word which infers an active regulation of wages and conditions of employment. The State award referred to in this decision is not such an award. It does not govern the wages and conditions of these employees and has never done so.
PN836
Now, we would say that is the first issue, but secondly, we would also say that you should rely upon the Workplace Agreements Act itself, which is U2. The Workplace Agreements Act at section 6(1) says that:
PN837
Where a workplace agreement has been made between an employer and an employee and has come into force no award, whether existing or future applies so long as the workplace agreement remains in force.
PN838
Now, we would say clearly that the State award just does not govern the terms and conditions. So we would say that there is no justification for the relying whatsoever upon that State award as a means of denying this application or supporting the section 111AAA application.
PN839
MR UPHILL: Commissioner, I might be able to short circuit anything - - -
PN840
THE COMMISSIONER: Yes.
PN841
MR UPHILL: My friend might be wishing to say by indicating that we concede that point, the award is not active, we don't seek to rely on its inactivity as being a reason that the Commission ought to not continue dealing with the matter. Reference to the State award was purely in terms of a fall back if the workplace agreement does not continue to exist and no Federal regulation comes into being.
PN842
MR DUFFIN: I thank my friend for that. Well, the second issue I guess that fundamentally we need to address and is the very basis for our ongoing application in one sense is the words of the Full Bench in the Rockingham decision. That is in relation to the unanimous position of employees and employer. As has clearly been the case from the evidence of the employees today it could not be said that the employees position on this matter is unanimous. There is clearly a range of use, ranging from some employees who take the view very strongly that the workplace agreements should continue in place and some who are very much of a different persuasion.
PN843
Now, the issue is fundamentally found at paragraph 39 of that Rockingham decision. What the Full Bench says is that:
PN844
The employees and the employers were unanimously of the view that they wished the arrangements in the Western Australian Workplace Agreements to continue.
PN845
The Full Bench goes on to say, well, to outweigh that primary consideration any public interest issue must have some you know, must be one of some substance. Now, we would say in circumstances where there is fundamentally a lack of unanimity as between the employer and the employees and indeed the range of use of the employees we would suggest is quite stark, that the public interest, or the primary consideration then in one sense falls away. We would say that because that is the basis of that Full Bench decision, is that it is the unanimity in this case which allows the Full Bench to say, well, it is just not right to then go behind the primary considerations and look at public interest generally.
PN846
We would say that in this instance where at least two employees are of the view that, well, we would prefer the award, and possibly three, although it all depends on what the outcome - it seems very much to depend on what the employers response to such a matter would be. Then we would say, well, in those circumstances the employees clearly have divergent views and you should look at the public interest generally. As far as the public interest generally is concerned we would then point you to the objects of the Acts that my friend's raised earlier this morning and I will deal with them in closing submissions.
PN847
Similarly, with our arguments which were in our written submissions concerning the nature of the work, the nature of the industry, such award and union coverage as exists and those public interest considerations which really the Commission has adopted in relation to section 111G. So there is not much further I would say by way of an opening other than to call the witnesses that we have.
PN848
THE COMMISSIONER: Very good.
PN849
MR DUFFIN: If I could call, Dennis Seiffert, first, please.
PN850
THE COMMISSION: State your full name and address, please?
PN851
PN852
MR DUFFIN: Now, Mr Seiffert, I understand you have had to give up work for a day to come here today. I would like to thank you for doing that. Now, have you made a statement in this matter?---Yes. I did that over the phone to a lady in Melbourne, yes.
PN853
Right, and you have got a copy of that statement?---I have, yes.
PN854
You have read it?---Yes.
PN855
Is there any changes to it that you want to make?---Yes.
PN856
Fire away?---It was just in regards to the - the allowance, the meal allowance. The company did pay a $47 - I would have to be corrected, stand to be corrected 47-something an hour - a day for overnight allowance.
PN857
So the overnight allowance in paragraph 4 of your statement should actually be crossed out, is that right?---Should be crossed out, yes.
PN858
Okay. Right. Are there any other - - -?---And the - no, it is just, I was just going to quote the overtime payments and shift penalties, they didn't occur so that still stands.
PN859
Right. So apart from that the statement is true and correct?---That's correct, yes.
PN860
Now, I just want to ask you a few additional questions concerning your employment with Peak Petroleum. Firstly, in relation to your comments in paragraphs 3,4 and 5 of that statement - - -
PN861
THE COMMISSIONER: Mr Duffin, I don't have a copy of it.
PN862
MR DUFFIN: Well, that could cause a few difficulties then.
PN863
THE COMMISSIONER: I have got the second page but not the first page.
PN864
MR DUFFIN: Perhaps if - - -
PN865
THE WITNESS: Right.
PN866
MR DUFFIN: - - - you can certainly take my front copy, or I will give you the whole thing that way.
PN867
THE COMMISSIONER: Do you wish this marked?
PN868
PN869
MR DUFFIN: Now, just in relation to your paragraphs 2, 4 and 5, there, to make it clear do you believe that you had any alternative to signing the workplace agreement if you were to obtain a job with Peak Petroleum?---Well, it was put to me that they - these were the conditions and you know, read through it, and sign on the bottom. So you know I have signed a few of them as I've moved around the work-force and the trend is you know, just sort of sign it and get on with it, you know, because they're the conditions and if you're there by yourself you are certainly not going to get things changed, you know, just because you're not happy with something. Everyone else has signed it so that's how you sort of feel towards these agreements.
PN870
Yes?---For myself anyway, yes.
PN871
Was there an opportunity to negotiate the agreement in any way?---Well, I didn't offer any myself. No, I didn't but I just took it that you know, if you didn't like it then don't sign it and unfortunately we can't start you until you sign that because that is part of the deal, you know.
PN872
So they can't start you until you sign it?---That's right.
PN873
Were you advised at all about the terms of the Federal Award or the wages of the Federal Award prior to signing it?---No, I wasn't.
PN874
Were you given a choice as to whether to be under this or the Federal Award?---No, I wasn't.
PN875
Now, you say in paragraph 10 which is on the second page of your statement, that you were approximately 3000 worse off as compared to the Federal Award. What is your reason for saying that?---Well, I looked at the - you know the hourly rate compared to what you would normally get, you know, with the hours that we did, in conjunction with, you know, the penalty rates and that, it would have worked out every bit of that, if not more, you know.
PN876
Would you prefer to work with penalty rates or would you prefer to work on a flat rate system?---Definitely penalty rates, yes.
PN877
Why is that?---For the simple reason that you know, you are going to earn more money for the same sort of hours that you would be putting in.
PN878
Does it affect the number of hours that you have to do by having the absence of penalty rates?---Yes, it does, yes.
PN879
In what way?---It just means you have got to put more time in at work to get the end result.
PN880
Does that affect - I withdraw that. Is driving - is driving within the fuel industry a more dangerous part of the truck industry, or the transport industry?---It is dangerous if things go wrong, you know, while it is in a controlled environment everything is okay. I mean, you don't need to be rolling things over and getting tanks rupturing and that type of thing.
PN881
Does fatigue lead to an increased risk of things rolling over?---Well, yes, that could contribute a heck of a lot, yes, for sure.
PN882
Does, so going back to what you said earlier in relation to the existence of penalty rates leading to less hours needing to be worked for the same wage, does the existence of penalty rates in your opinion lessen the risk of - lessen the risks within fuel industry driving?---Well, yes, I would agree with you on that last statement there that would be true, yes.
PN883
Right. Now, in your view, given a free choice as between workplace agreements and the award what would drivers chose?---Most definitely want the award.
PN884
Why would they chose workplace agreements over the award?---Because that's the trend of today.
PN885
Who is making that trend?---Companies are.
PN886
I have got no further questions.
PN887
THE COMMISSIONER: Mr Uphill?
PN888
PN889
MR UPHILL: Mr Seiffert, you say in item three of your witness statement that:
PN890
I was unhappy with the agreement as it provided for a flat rate of $16 per hour for all hours worked.
PN891
?---Yes.
PN892
Now, did you communicate your disagreement at the time you were talking to Ian Winn about the job that was being offered?---No, I didn't, sir, no.
PN893
I put it to you that in the absence of any comment from you - - -?---Yes.
PN894
- - - all the company could conclude is that you are happy with what is being offered, isn't that correct?---No, that's not correct, sir, no.
PN895
Well, how are they to delve into your mind to know you are unhappy unless you say something?---Well, I'm a man looking for a job at the time and you just get on with what's being offered and just do the job because you know damn well that - you know, to make a - a statement like you're trying to suggest would only jeopardise your chances of getting a start.
PN896
You didn't say anything at the time to indicate that $16 an hour as a flat rate was unacceptable to you?---No, I didn't, but I certainly thought along those lines.
PN897
You say in item six that you are required to have a current Dangerous Goods Licence and Australian Institute of Petroleum Passport?---Yes, sir.
PN898
You had both of those at the time you commenced with Peak Petroleum?---That's correct, sir.
PN899
You say that you obtained both of those tickets on your own time and paid for the costs yourself?---Yes, sir.
PN900
You are not implying that the company should have reimbursed you for those costs when you started with them, are you?---Not at all, sir.
PN901
In fact, the company pays for renewal costs associated with the licence and the passport, don't they?---Well, I heard one of the lads out there making a statement that they were wrestling with the company in regards to a renewal that was - had fallen due and they were just wrestling who was going to pay the cost. I don't know the outcome.
PN902
So you have got no definite knowledge about whether or not the company does or does not pay for renewal costs?---No definite knowledge, no. No.
PN903
So would it surprise you to know that the company does, in fact, pay renewal costs?---Well, that's the trend, so I - I wouldn't be surprised that they didn't.
PN904
Now, you worked for Peak Petroleum for, you say, about 3 months, is that correct?---Pretty close to 4 months it was, sir.
PN905
You were employed on a casual basis?---That's correct.
PN906
I presume as a casual employee you wanted to work as many hours as you could and get as higher income as you could while you were a casual, is that correct?---Yes, sir, yes.
PN907
You say you resigned due to a downturn in work, is that correct?---That's correct, yes.
PN908
You resigned in about February of this year, is that correct?---Yes, yes. Once I realised that, you know, it was going to take a while to come back on track I spoke to Ian Winn and said that I'd be best to try and find something else to keep afloat and we just left it at that and I think it was another week after that I ended up getting my holiday pay.
PN909
At about that time the hours were being reduced, weren't they?---Yes. Yes, they were.
PN910
That was occurring at the time of the introduction of the fatigue management code at Peak Petroleum, you are aware of that?---That was already in place.
PN911
Right?---Yes.
PN912
Now, you say you resigned because the hours and the amount of work was being cut back?---Yes, there'd been changes throughout the company in - in relation to another company taking over some of the fuel runs.
PN913
Right?---Yes.
PN914
Isn't it also true that part of your decision to leave was because you couldn't handle the paperwork associated with the job?---No, sir, no.
PN915
Isn't it true that the company arranged several tuition sessions with their accountant to try and assist you with handling the paperwork?---That's correct, yes.
PN916
Isn't it also true that you applied for a job with Finemores after leaving Peak Petroleum?---No, that was prior to starting there.
PN917
You weren't offered a job by Finemores, were you?---Well, I never heard any more from them.
PN918
They didn't say that there was any particular reason why they declined to offer you employment?---No, I didn't get a chance to speak to anybody.
PN919
Right?---There was no communication.
PN920
Now, you said, in answer to a question from my friend, that your witness statement was a statement taken over the phone with someone in Melbourne, is that correct?---Yes, that's correct.
PN921
So tell me how that came about? What led up to that?---Well, I got a call from Melbourne. The young lady was the receptionist for the TWU, she - she needed to have me appear in Court and she told me that I'd been summonsed to Court and we needed to get together and - so that she could take a statement, as we've got in front of us, and there was another call once I got home that night.
PN922
So did the union present you with a draft statement at any stage?---Of what, sir?
PN923
Of what is in here?---Yes, they - they did, yes.
PN924
They asked you to sign it?---Yes, well, I signed the one I've got at home.
PN925
Right?---Yes.
PN926
So did you make any changes to the statement they asked you to sign?---Yes, I did, yes.
PN927
What were those changes?---Those were the changes that I referred to before the commencement of this hearing, that was the - - -
PN928
Only in relation to the overnight and meal allowance of $47.50 - - -?---Yes, that's correct, yes.
PN929
- - - for Kalgoorlie?---Yes, sir, yes, that's the one.
PN930
So they suggested to you what you should put in your statement?---Well, once I realised that I was wrong in that area there, I made the phone call.
PN931
Right?---Mm.
PN932
Aside from that issue of the overnight and meal allowance it was the union who suggested to you the content of the document?---I don't quite understand that question.
PN933
Okay. How much of this document is your input?---It's all my input there.
PN934
THE COMMISSIONER: I take it it was dictated by you over the phone - - -?---That's correct.
PN935
- - - to someone at the other end who wrote it up?---Yes.
PN936
Sent it to you to say: is this it, have I got it right?---"Have I got it right?" yes, that's right.
PN937
MR UPHILL: That has made it a lot simpler, Commissioner, thank you. Thank you, I have no further questions.
PN938
THE COMMISSIONER: Anything further, Mr Duffin?
PN939
MR DUFFIN: I think you stole my thunder, Commissioner. No, I have got nothing further.
PN940
THE COMMISSIONER: The only question I had in relation to this, Mr Seiffert, is that you indicate at point seven that you were employed by Peak Petroleum on a casual basis. Do you make that statement on the basis that you were paid $16 per hour - - -?---Yes, I - - -
PN941
- - - or do you make it on some other basis?---No. Well, I was employed as a casual with holiday pay and - - -
PN942
Well, let us just clarify that?---Okay.
PN943
Were you employed under the terms of this workplace agreement - - -?---Yes.
PN944
- - - that we have been discussing with various witnesses? So you were offered a workplace agreement which you agreed to sign?---Yes.
PN945
It is that agreement that you say causes you to say that: I was employed on a casual basis?---Well, yes, I was a casual, sir.
PN946
All right. Well, the advocates at the bar table might have something to say to me about all of that but I think we understand what it is that you are putting and it is probably in evidence again reaffirming that you drafted the statement and it wasn't done for you. I have got no further questions. Thank you, I appreciate you attending the Commission today to give the evidence that you have. You are excused?---Am I able to make any comments here at all?
PN947
PN948
MR DUFFIN: I now call Tim Dawson.
PN949
PN950
PN951
MR DUFFIN: Now, Mr Dawson, have you made a statement in this matter?---Have I made a statement?
PN952
Yes?---Yes.
PN953
You have got a copy of that with you?---Yes, I have.
PN954
Now, is that all true and correct?---Yes, it is.
PN955
PN956
MR DUFFIN: Now, the first question I ask you is just in relation to Peak Petroleum. Have any former drivers made any complaints to you about the wages and conditions there?---Yes, they have. I mean, that was the original reason I went up to Peak Petroleum 18 months or 2 years ago to see Mr Quackenbush about the workplace agreements he'd offered people and to attempt to negotiate an agreement that would have been, I suppose, in line with the Oil Agents Award.
PN957
What was the response to that?---Mr Quackenbush believed that he wasn't respondent to the Oil Agents Award. There was - that - and I said: well, you know, in that we may well go through the process of roping him in. And he said: well, you know, that's been tried before and he didn't believe that he'd be - that no matter what we done he wouldn't have to - he wouldn't end up being respondent to it.
PN958
Now, I am just going to ask you a few questions to sort of supplement your statement a little bit. Now, in paragraph 3 of your statement you say there that you are familiar with the work performed by fuel tanker drivers?---Yes.
PN959
You suggest, in paragraph 2, that you are aware of the terms of the Transport Workers Oil Agents Contractors Award?---Mm.
PN960
Right?---Yes.
PN961
You say that, in paragraph 3, that the work performed is work which comes under the classifications of Federal award. Why do you say that?---Well, I believe it is. You know, the employees at Peak Petroleum, I mean, they - they cart fuel, and you know, in carting fuel in the definitions of the Oil Agents Award, they're - you know, I believe they should be covered by it. I mean, they compete against people who are respondent to that award and I just - I don't see the difference between what people at Peak Petroleum do and people in the - in the industry do in general, you know - - -
PN962
Who are the main competitors of Peak Petroleum, to your knowledge?---Well, other competitors, yes, I mean, you know, whether it's with BP, it's Shell, it's the contractors out there, Finemores, Linfox, you know, there's a - you know, a grossly - advantage to Peak Petroleum in what these people are paid under the - under the award to what Peak Petroleum drivers are paid.
PN963
What does Gull Petroleum pay under, do you know?---Well - well, Gull Petroleum are respondent to the Oil Agents Award but they, I suppose to get out of being - to paying their drivers that, they contract it out to some small contractors. They now use Finemores because then contractors, at the end of the day, couldn't - I suppose the way they paid their people caused them - caused them to drive unsafely. I mean, they - you know, several months ago there was - there was a couple of roll-overs and, you know, we'd say that was attributed to the - the way their people worked, they were paid trip money and they had to rush around to do more loads a day so that they could get more trips in and make better money.
PN964
The Transport Workers General Award, which I understand is the State award here?---Yes, 1961 award, yes.
PN965
That is exhibit U1. Now, do the main competitors, or the main competitors to Peak Petroleum, pay employees under that award?---None that I'm aware of.
PN966
Does that award - to what extent does that award cover people within the classifications that the drivers at Peak Petroleum would operate?---Only in the configuration to their vehicle, I would say. I mean - but as far as the products that they cart, I don't believe there's any classification under that award for it and companies in the past have argued that it - they may well cart oil or fuel that the general award doesn't have any coverage of them, that they're award free. I mean, that's the problem we've had in some cases when we may well go in and say the general award, they will argue that the general award has nothing to do with them.
PN967
So is State or Federal award regulation the main award regulation within the Oil - - -?---Yes, the Oil Agents Award is - is the award that is either - the majority of companies are either respondent to or we have enterprise bargaining agreements at which, you know, the no disadvantage test is what we use. So if they're not respondent we've sat down and negotiated an agreement which is in line with the Oil Agents Award.
PN968
So the underpinning award generally is the Oil Agents Award?---Definitely. Definitely, and as a union we'd - we would argue strongly that that is the award, you know, for reasons of uncompetitiveness and in the industry for all companies. I mean, you know, parity of wages, we don't like to see employees used as a tool for companies to be able to have a competitive edge against other people. If companies wish to run their business and can't run their business, I mean, wages shouldn't be the determining factor in then people either making a bigger profit or getting the work.
PN969
All right. I just want you to again turn to your statement then. You say that you are aware that the terms and conditions of these particular drivers are covered by the registered Western Australian workplace agreements. Do Western Australian workplace agreements have to satisfy a no disadvantage test - - - ?---No - - -
PN970
- - - in comparison to a relevant award, like the Australian Workplace agreements do?---No, no, and that is - no, they just have minimum conditions and I believe it's - you know, and I may be mis-quoted on this, Commissioner - but it is approximately $10 an hour is what the - the minimum conditions are. No - you don't have to take into account what the other award conditions, ie, overtime, shift penalties, meal moneys, etcetera, and you know I mean really I suppose that is why, you know, if this is a political statement that the Government - one of the reasons the Government was changed is the new Government intends to change that legislation.
PN971
All right. Now, have you got a document which explains what the minimum conditions are? Have you seen any document like that?---I have - I have, but I may well not have one with me.
PN972
I think, Commissioner, if the witness could be shown T5 - - - ?---Well, I understand that they shall be changed and that awards will be used as - as minimum conditions to the award. Is that what we're talking about?
PN973
We will come to that in a little while?---Okay.
PN974
If you have got T5 there?---Mm, mm.
PN975
Have you seen any of the workplace agreements in this matter?---Yes, similar to this one?
PN976
Sorry, have any of the employees at Peak Petroleum - employees, or former employees in fact - shown you copies of their workplace agreement?---Yes, I have seen some - I have seen some.
PN977
Okay, and have you been authorised by an employee, or a former employee to discuss and make comparisons with the - - - ?---Well, there's been no objection when they've shown them to me - they haven't said - I mean, what I said to them I wouldn't go flashing around with their names or who they were on it for obvious reasons - but at no time when they showed it they were quite willing to let me discuss what their rates of pay were and the conditions of that workplace agreement.
PN978
Were you given written authority to your knowledge, or to your recollection?---Yes, yes.
PN979
Okay. Now, do you know what the wage rate payable under the terms of the workplace agreement is?---Well, it's $16 - - -
PN980
This particular one?---- - - an hour, a common hourly rate.
PN981
And is there an overtime rate payable in this agreement?---No.
PN982
All right. A spread of ordinary hours in the agreement?---No, it's 24 hours a day, 7 days a week, 365 days a year.
PN983
So weekend work, or public holidays - - - ?---Public holiday, Christmas Day, Good Friday - - -
PN984
- - - are paid at different rates - - - ?---- - - you know, I mean, awards allow for triple time and things like that, where this is - - -
PN985
Provision for shift work in it?---No, no.
PN986
Provision for rostered days off?---No, no.
PN987
As far as the dispute resolution goes, is there a provision to access any commission?---No, no, it's a typical workplace agreement.
PN988
What is that?---Well, that you know - I mean, they don't want to give the employee a fair crack and if there is any place to go - I mean, they unfortunately usually have to pay 50 per cent of the costs and if someone wants to run off and get a silk at $10,000 a day, the poor old employee has got to fork out five of that. Yes, no, I mean, they really take it out of the hands - you know, take the union away where they can get free representation - well, it's not free, Commissioner, they do pay union dues - but you know where we go and represent them - they don't have that opportunity.
PN989
Okay.
PN990
THE COMMISSIONER: Well, is that the end of the commercial?
PN991
MR DUFFIN: Barely started, Commissioner.
PN992
THE WITNESS: There is no members here, Commissioner.
PN993
MR DUFFIN: That is not quite true.
PN994
THE WITNESS: Yes, well, there's a couple of us.
PN995
MR DUFFIN: Now, is there a - from your reading of them is there a provision for a minimum rest period between allocated work periods or - - - ?---My recollection of it, no, there isn't, no. I mean, we have what they call fatigue management regulations in place now which, I mean, has been argued by some people that they - we don't need them in this State.
PN996
All right, now, look, you have given us a brief snapshot of what you understand the State Government's policy in relation to these agreements to be?---Mm, mm.
PN997
The State Government - we have heard other evidence and we have seen things which basically indicate that the ALP intends to introduce a no disadvantage test. Do you understand how that is going to operate or - - - ?---Yes, well, I mean, there would be no - I mean, until we actually see the legislation, you know, we're not too sure what 100 per cent it will be, but I believe the no disadvantage test is - is to what the award is and we hope that that means penalties and overtime as well.
PN998
What would the award in this case be?---Well, we would argue the Oil Agents Award.
PN999
Do you know what is going to happen to agreements made after March 2001?---March 2001, yes, I believe - yes, well, they - any signed after that had 6 months to run.
PN1000
Okay, so what happens to those ones?---When they run out, well, I suppose if the legislation is in place by then that we will be able to argue the no disadvantage case for them people, so people who have people on agreements before that and people that they have put on agreements after that, I suppose, will be a problem for companies, where they will have people on different rates of pay doing the same work.
PN1001
Right. Now, you say in your statement at paragraph 7 that:
PN1002
Drivers in the fuel industry require higher levels of skill and knowledge than general transport drivers.
PN1003
Why do you say that?---Well, I mean, they cart dangerous goods firstly and, you know, I mean, "dangerous goods" you have an accident - I mean, you know, we've got the public out there that are driving along - never mind the environment - if you have a spill of - any sort of petroleum product, you know, the effect on the environment if it spills out. It spills on service stations when they're dropping it, it can affect the environment and, you know, I mean, I suppose - I'm not going to say that a truck is going to explode, but they still cart dangerous goods. I mean, I suppose we can talk all day about it but the fact is that people should have higher skills to do this job. We believe that we have an award in place that was - that has been fixed around - the conditions of that award is so that we have professionals in that job - the training - I mean, everything that is in the award pushes the companies to make sure these people are fully skilled and trained up to do the job properly. As a union we believe that the public has the right to make sure that people that do this work are trained properly, are paid properly and they look at it as a career path - in any industry that - you know, the elite of it is dangerous goods and fuel. Somebody that is on $16 an hour at the end of the day is paid less than we have people carting containers of wheat around the metropolitan area on hours and overtime. Now, we believe that people should - and it does not mean that they don't have to be safe on the road either, Commissioner, but these people that cart dangerous goods should at the end of the day be the people that aspire to drive them vehicles because they want to be professionals and better than everyone else in the industry. If they're not paid properly, no one aspires to be the best, that is where we see it.
PN1004
All right. Now, fundamentally safety is a big issue and that is the reason why you want people that are best, is that right?---For sure. I mean, the safety issue would be number one. Nobody out there and - you know whether it is the employee or the employer - should put safety ahead - should put anything else ahead of safety. Now, I mean, at the end of the day wages won't make someone think safety more than another, but when people are paid better - on higher rates, the boss then has the ability - or should have the ability to say: mate, we pay you, we pay you well, we expect you to do these things and safety should be it. I mean, you know and that's why we - you know, the argument is: is you're paid well, do the job properly.
PN1005
All right. In your experience, does the existence of penalty rates and overtime payments discourage the use of excessive hours?---For sure, for sure. Especially - especially if - if it ends up not being - you know, the no disadvantage case. I mean, if it is totally different. I mean, someone under an Oil Agents Award, the minimum rates is about $16.80, that is the minimum before you go on to you know - after - over 6 months, 3 to 5 years, where it gets up to over $17 an hour. So when you're on less than that just without penalties in it, you must work long hours to make, you know, a reasonable amount of money and, you know, it is a fact - and I'm not saying that it's happening now - but it is a fact that people at Peak Petroleum were working up to 100 hours a week, and so you know they intended to work longer hours and people do tend to work longer hours to make the same amount of money that they would have if they were on an award where they can work less hours.
PN1006
Okay. I have got no further questions.
PN1007
THE COMMISSIONER: We might just take a short break before we have the cross-examination.
SHORT ADJOURNMENT [3.45pm]
RESUMED [3.59pm]
PN1008
THE COMMISSIONER: Yes, Mr Uphill.
PN1009
PN1010
MR UPHILL: Mr Dawson, are you aware that the State Transport Award covers people involved in the service station industry?---The service station industry?
PN1011
Yes?---No, I'm not, I'd have to say.
PN1012
Okay, so that would surprise you to learn that it does in fact cover people in the service station industry?---In what respect in the service station industry?
PN1013
I will ask the questions. Does it surprise you, or doesn't it?---No, it doesn't surprise me.
PN1014
Okay?---I just - do you mind if I answer that fully? It doesn't surprise me, but my understanding is that it doesn't cover people that transport goods to and from service stations.
PN1015
Okay, that is your understanding?---Mm.
PN1016
But you concede that you may be mistaken in that view?---Yes, yes. As you can't tell me what people it covers.
PN1017
Are you aware that the State Transport Award covers configurations of vehicles that Peak Petroleum operate?---Yes, yes, and I think I admitted that earlier.
PN1018
Okay. Are you aware that the workplace agreement covering employees at Peak Petroleum provides for time off in lieu when they work public holidays?---Yes, yes.
PN1019
Okay?---I must say, I mean, it's quite a while since I've read the workplace agreement and they never give me one to take away because - as I wouldn't take it in case it fell into hands - - -
PN1020
THE COMMISSIONER: Well, we don't need the commentary, we just need the answers to questions?---Okay, okay, thanks, Commissioner.
PN1021
Thank you.
PN1022
MR UPHILL: You say in item 6 of your statement that:
PN1023
At least one employee at Peak Petroleum has indicated to me that he signed a witness statement in this matter after pressure from his employer.
PN1024
So this is something that you were told by an employee of Peak Petroleum, but you don't know that to be correct, do you?---No, it is correct, he told me that.
PN1025
So it is hearsay?---It's hearsay, it's hearsay.
PN1026
You didn't hear someone from the company talk to him about signing a witness statement, did you?---No, but he told me that.
PN1027
Okay, and do you believe everything your members tell you?---Unless proven wrong.
PN1028
Have you ever been proven wrong before by something that a member has told you that has turned out to be incorrect?---Yes, I'd have to say that.
PN1029
Yes. Thank you, I have no further questions.
PN1030
THE COMMISSIONER: Anything further?
PN1031
MR DUFFIN: I have got nothing further, Commissioner.
PN1032
PN1033
THE COMMISSIONER: Mr Duffin.
PN1034
MR DUFFIN: I have got no further evidence. Do you want me to go first?
PN1035
THE COMMISSIONER: If there is nothing further I think it is probably up to Mr Uphill now with, ultimately, the right of reply.
PN1036
MR UPHILL: Commissioner, that concludes what the union wish to put then. There are just a few very brief remarks that I would make and they are that clearly the views of employees are paramount in determining this matter and I was a little surprised when my friend indicated that in his assessment of the evidence there were only a couple of employees who supported workplace agreements continuing. I must confess that that is a conclusion different from the one I formed, in that in my assessment, there were four or five employees who supported the continuation of workplace agreements and if I might just very briefly touch upon the evidence that we have heard in these proceedings.
PN1037
The first witness was Clive Hood, who was very forthright and clear in what he had to say, that he wanted the workplace agreement to continue. I think he was unequivocal in his evidence on that particular aspect. We then heard from Jack Longthorne, and he indicated to you that he was worried about his job and hours being reduced if the award was to commence to apply at Peak Petroleum. He put views which indicated that he was well informed, he knew the consequences of the various alternatives, but at the end of the day in my assessment, his evidence was that he wanted the workplace agreement to continue.
PN1038
We then had evidence from Mr Ray Howting and he indicated in cross-examination that if you take out of the equation possible cuts to hours, or threat to job security, that he would prefer the award - and that is what my friend got from him in cross-examination - but it does not detract from the inescapable conclusion that: he cannot take those things out of the equation, and if they factor into the equation, his evidence was that he would prefer the workplace agreement to continue. We then had evidence from Wayne Dunphy and his evidence was that he was happy with the existing arrangements to continue.
PN1039
The only employee - the only current employee who did not want the workplace agreement to continue was Mr Paul Ganzer, and he was very forthright in his evidence and it was clear on what basis he made that assessment. But I think it is also significant that Mr Ganzer took up employment for the second occasion with the company in August of last year, knowing that his employment would be on the basis of a workplace agreement. Knowing that his employment would be on the basis of a flat hourly rate, so I think all of that detracts from his evidence, that when you look at all the factors you weigh up in deciding whether or not to accept employment, he made a decision - an informed decision - to come back and work for Peak Petroleum, knowing full well that he would be working there on the basis of a workplace agreement.
PN1040
So that is why we say when looking at all the evidence there are four or five current employees who do support the continuation of the existing workplace agreements. There was certainly evidence from former employees about workplace agreements but, in my submission, that evidence ought to be discounted. It is not a factor you can, in my assessment, take into consideration in looking at primarily determining the public interest as reflected by the views of the employer and employees - current employees. The question then arises as to if that assessment is right - that the majority of employees do support the continuation of a workplace agreement - does that affect the sort of decision-making that needs to go on.
PN1041
THE COMMISSIONER: I think too the other relevant aspect of all of that I think is that in each case on my recollection it was reasonable to say that they are anxious for the agreements to continue in the main because they want to keep their jobs and they are concerned that if there is a change which impacts on the amount of money that has to be paid in terms of wages, that some of them might not have jobs and that that is an incentive to maintain the status quo.
PN1042
MR UPHILL: Look, I would certainly agree with that assessment of the evidence overall.
PN1043
THE COMMISSIONER: I think you are right, Mr Ganzer said: if he had his druthers, he would rather have the award, thank you very much.
PN1044
MR UPHILL: Yes.
PN1045
THE COMMISSIONER: But the others were a bit more qualified than that.
PN1046
MR UPHILL: Yes, yes. So it comes back to what notice do you take of the views of the majority. Now, in the union's submission it was put that there needs to be some unanimity of views before you can in some way decide that the onus then turns to the union or - I'm not sure what they then make of the fact there's no unanimous support for a workplace agreement but the issue has been, if you like, canvassed without saying to us what we should do about it and we think that given the wording of section 111AAA(2) it doesn't matter if there's no unanimous view.
PN1047
The public interest, as seen by the views of employees and the views of the employer as referred to in section 111AAA - I don't think on reading of that section there is a need for any unanimous view to be crucial to how the Commission undertakes it's task of determining what is the public interest. I think it's sufficient that we decide what are the views of an individual and aggregate those views if you need to decide that clearly the majority of employees support the continuation of the workplace agreement and we say that's the conclusion that ought to be drawn from the evidence.
PN1048
Having said that, we believe that the primary consideration has been determined and that is that unless there are good public interest considerations the Commission ought to cease dealing with the matter. So we then come to the public interest factors and these have been canvassed and most notably the issue of safety and also changes to the State Industrial Relations legislation. What we say, without repeating our earlier submissions, is simply that there's really nothing been put in these proceedings that would indicate sufficient importance in those factors to overrule the views of the majority of employees and the employer. On that basis we would seek that the application be upheld and that you cease dealing with the matter, if it please the Commission.
PN1049
THE COMMISSIONER: Thank you. Mr Duffin.
PN1050
MR DUFFIN: Yes, thank you, Commissioner. Like my friend I also want to take you back to section 111AAA and it's the views of employer and employees. It doesn't say anything about the majority of employees. There's no voting requirements. There are by contrast quite considerable provisions relating to valid majorities in the remainder of the Act and had that have been something that was intended by Parliament to have been used in this instance we would have said that it would have gone in.
PN1051
In relation to that the explanatory memorandum which I don't have but is quoted in relation to this provision in the decision of the Full Bench in the AMOU case which has been previously referred to, is found at page 12 of that case. It says that - primarily it's found at the middle of that page 12 and it says:
PN1052
The new section also admits ...(reads)... of regulation.
PN1053
It goes on to say:
PN1054
Where employers and their employees ...(reads)... and the employees.
PN1055
Now, we would say that despite my friend's comments in relation to Mr Longthorne and Mr Howting, that their evidence was far more equivocal than the way it's been proposed here today. Their evidence was: look, we would prefer the award but we are fundamentally concerned about losing our jobs. Now, we would say well, look, that's something that the employer may well come to deal with by virtue of this matter continuing to go on. No requirement was seen to be ceased dealing with, that the roping-in applications still continue and 3 months down the track the employer is saying: well, look, I know what's going on. I'm prepared to deal with this by way of an enterprise agreement. I want to put something in. I know what the deal is.
PN1056
But for the employer to say: well, look, today my only idea at the moment is to contract everything out and get rid of at least 2 or 3 employees, well rightly those employees have gone: well, I'm fearful of my job. But this process doesn't end here today. This process has still some time to go and given that it has been going on for now the best part of 16 or 18 months it will continue to go on. The opportunity will come about for the parties to again consider how this matter should be dealt with but that does not mean that the employees have equivocally said, or rather that the employees have unequivocally said: the award is not what we want; nor have they unequivocally said: the workplace agreements are what we want.
PN1057
Certainly two of them did. We concede that. One employee did not. But the other two were very much more: well, look, it really depends on the circumstances; and fundamentally with that degree of divergence of views we say to you well, this primary consideration, the primary consideration that is granted to you, or the discretion that's imposed upon you under section 111AAA(2) is something that you now need to say: well, I've examined that. I know what the employer's view is. I know what two of the employees' views are, in fact I know what three of the employees' views are; but there is quite a considerable divergence as between those employees and the explanatory memorandum makes it clear in that situation you then go to look at the general public interest.
PN1058
Again I'm reinforced in that interpretation by virtue of the way the Full Bench dealt with the decision in the Rockingham case. In that situation they say:
PN1059
The employees and the employers ...(reads)... which outweighed it.
PN1060
But they don't go on to say well, you know, we would have adopted a majoritarian principle in this situation. They don't say anything to that at all. They say: look, fundamentally this is a matter of a threshold issue. Once you get past the primary consideration you then are capable of looking at that but they only do that in an instance because there's unanimous views. Here where there's quite a substantial divergence and in the absence of anything in the Act that points you to a means by which a vote occurs or a valid majority occurs, you should then look at the extrinsic material. The extrinsic material says where there is a divergence of views the Commission should then examine the general public interest considerations.
PN1061
So to that extent I'm greatly at conflict with my friend's case in this matter in that there is just no unequivocal basis. There is no way you can say that four employees supported one thing and even if there was a way that you could say four employees supported one thing that still doesn't provide you with circumstances where the employer and employees have agreed that this is the jurisdiction of their choice. It may well be a matter of weight then for you to look at as far as general public interest concerns and that may well be something that you should consider but it's not something that we say leads you to ignore the general public interest at that point. That is still there for you to be determined.
PN1062
Now, in examining the general public interest as I indicated in my opening submission the issue that we say is that it's a matter which you then begin to look at section 111G cases. They are in many ways very similar and in a lot of ways were the fundamental basis to how 111AAA entered the Act in 1996. But as far as the general public interest goes it's quite clear that the balance between various factors is a matter of fact and degree and that's seen in numerous decisions from the High Court down that balancing the public interest is a difficult task but it is a combination of looking at the whole range of factors and then working out where on balance the public interest lies.
PN1063
Now, we say that the first consideration of any public interest by the Commission is to look into section 3 and 88 of the Act. We say that in this context it's important to bear in mind the general scheme of the Act. Section 3 provides the principle objects of the Act and they are well known and my friend's touched on the relevant ones this morning and the relevant ones are found between 3B, 3C, 3D and to a lesser degree 3E. Now, fundamentally the objects in some ways seem to sort of force the Commission to go in different directions. Section 3B suggests that primary responsibility rests with the parties at the workplace.
PN1064
Section 3C requires the parties have the ability to choose the most appropriate form of agreement and we would emphasise to you that choice is a really fundamental word within section 3C. Fundamentally there was no element of choice in these workplace agreements in this case. The only choice was if you want a job this is the basis of your employment. It was unanimous as between the employees, or certainly dominant between them. The agreement was presented as a pre-condition to obtaining any form of employment.
PN1065
So it was the employment that was chosen by the employees, not the agreement and not that form of employment regulation. So we would say that 3C, although it talks about agreement-making and allowing the parties to choose, in this instance the choice has not been a valid choice. It has been a matter where the choice has been employment and the consequence has been: well, here's your agreement and you've got to sign that. That's quite clear by virtue of exhibit T3, I think it was, which was the letter to Mr Ganzer saying: sign here, this is your employment agreement.
PN1066
Now, section 3D is about providing a foundation of minimum standards and my friend has indicated that the unions often in these cases come back to 3D particularly because it talks about having a minimum award safety net. Now, we would say that that's fairly fundamental. It is about having an award safety net and that section 3D is further emphasised by section 88 and section 89 which deals with this part of the Act, the dispute settlement procedures part of the Act, which is part IV. Now, section 88A, which is about the objects in Part VI, talks about wages and conditions of employment protected by a system of enforceable awards established and maintained by the Commission and awards to act as a safety net of fair minimum wages and conditions of employment.
PN1067
It does not talk about the minimum employment of condition Act [sic]. It talks about awards and fundamentally that's why we say that this is a very important part of this section and a very important part of the public interest considerations that you need to consider. We would also point out the fundamental and crucial absence of the no disadvantage test within these agreements. Interpretation of an act and the scheme of the Act has been clearly set out to be - look, you need to consider the whole Act, the whole scheme, the whole purpose of the Act, and we say that there's a very important public interest component, which is the absence of the no disadvantage test.
PN1068
We say this because if you look at section 152 this section was inserted within the Act to say: well, look, State employment agreements are allowed to override Federal awards. It's a section which provides a great deal of coverage to the State system, but section 152(5), which is fundamental to the way this works, says that: well, the State employment agreement cannot be used in subsections (2) and (3) unless - and this is subsection (a):
PN1069
The employees covered by the ...(reads)... of an award.
PN1070
Now, fundamentally we say that the Act has said minimum award wages and the minimum award system is crucial and it's the very basis within which the objects exist but it also says: look, we're prepared to have agreements. We're prepared to accept agreements in existence but those agreements must be predicated upon a no disadvantage test by comparison with the relevant award and that is - it's a two-fold thing. It's to protect the award safety net, to protect employees, but it's also to allow fair and proper agreement-making, which we say doesn't exist in relation to workplace agreements in the Western Australian sense and particularly in circumstances where they are presented as a fait accompli to employees upon their commencement of employment.
PN1071
Now, the second issue that we wish to raise as a public interest matter beyond the scheme of the Act is the forthcoming changes to the State industrial relations system. Now, my friend pooh-poohed the idea earlier this morning that somehow this was an inappropriate thing to consider or that this is not a reason for the Commission to be interested in this but we have provided evidence. Both the employer and the union have provided evidence which shows that any workplace agreement made after 21 March 2001 can only last 6 months. My friend, in his opening comments this morning, said: well, there are none. This doesn't exist. Everyone's made them in 2000.
PN1072
Well, the truth is two of the five employees had them made after 21 March 2001. Secondly, the change will introduce a no disadvantage test with respect to a relevant award. Again we say: well, this is the relevant award. We will come to that in a little while. But thirdly - and this is fundamental - employers who fail to upgrade their workplace agreements can be prosecuted - can be prosecuted for failing to do so. Employees are capable of suing to recover these things and we say to you, Commissioner, that it is a matter of public interest which is clearly specified by this Western Australian Government that these agreements are - the Western Australian Government has indicated that these agreements are not models, should not be considered appropriate because they are not developed or designed or produced in accordance with what they say is the appropriate basis for agreement-making.
PN1073
To go further, it is again Government policy, as I understand it, that agreements will not be capable of being provided to employees prior to employment. Now, I could be wrong on this but it is a similar situation to what we have here, that these employees were given an agreement to be signed as a pre-condition to obtaining employment. Now, it's my understanding that that's not going to occur in the new legislation either. So fundamentally we say it is not fair agreement-making. It's not an exercise of choice and the Government here has recognised this. So we say that this is a very important and fundamental public interest consideration for you to consider.
PN1074
THE COMMISSIONER: That is even if there's no legislation in place?
PN1075
MR DUFFIN: That is even if there's no legislation in place. The Government has made it clear that the legislation intends to be retrospective. You know, it intends the legislation to operate as of 21 March 2001. Now, there will be transitional arrangements, they say that, but they also say upgrading is going to occur. Now, we say that, well, look, you are entitled to put different levels of weight on that, you are entitled to say: well, it may be that, you know, it does not go through in exactly that way, but it is still Government policy. It may not be something that is legislation to date, it may not be a bill to date, but it is Government policy and they've made it clear, they've made it clear.
PN1076
THE COMMISSIONER: The only difficulty I have with that is, if we can use another analogy, in the Federal area where the current Opposition says that it is going to roll back the GST and that that is its general policy thrust, it is going to be part of their platform in the up-coming Federal elections and the other side, the current Government, says: well, to what extent are they going to do that? We don't know, we haven't seen any legislation. The Federal Shadow Treasurer says he wants to see the figures that are attached to the Budget to determine to what extent roll-back will occur. Now, that - that is an example of an intent but we don't really know what the legislation is going to be at the end of the day and if, in fact, they reach a position where, in fact, they deliver on the policy. It may well change. The two could be different.
PN1077
MR DUFFIN: That is - - -
PN1078
THE COMMISSIONER: Now, isn't it true with this as well?
PN1079
MR DUFFIN: We would say, yes, that is true, it is true, although it is probably not as accurate an example because you have a Federal Opposition rather than the State Government.
PN1080
THE COMMISSIONER: That has been elected in terms - - -
PN1081
MR DUFFIN: That is right.
PN1082
THE COMMISSIONER: - - - of a policy, I accept that.
PN1083
MR DUFFIN: Okay? Moving from that, sort of, slight quibble, if you like, we would say that there are Government documents now which have been produced. I've submitted the DOPLA - - -
PN1084
THE COMMISSIONER: The exhibits, DOPLA.
PN1085
MR DUFFIN: That is right.
PN1086
THE COMMISSIONER: Yes.
PN1087
MR DUFFIN: That is more than just a general, sort of: well, we've given a speech or two which says this is what is going to happen. This is actually - the Government is - the bureaucrats are working on this and providing it and it is a public document, it is not something where they have - in your roll-back example, where it is left in a situation of: well, as a general policy statement, we're going to roll-back things but we want to wait and see until we see what the dollars say. In this case, they've actually given you the specific elements to their policy: we will do the following, 1, 2, 3, 4. Now, that is quite different to a general: look, you know, we're opposed to the GST, so let's see how the numbers work out and we'll try and get rid of some of it.
PN1088
THE COMMISSIONER: Yes.
PN1089
MR DUFFIN: So we would say: look, fundamentally, there are two - two very big differences there. One is you have a Government which has indicated not only what its policy was prior to the election but has actually subsequently, both through media releases and on its - on its web page, indicated exactly what changes are going to be made. Now, we further submit that as matters of public interest, as I foreshadowed, that the matters in relation to section 111G are relevant in assessing a section 111AAA case. In South Australia v The Australian Education Union, which was a matter which was referred to in our submissions, and I've got a copy from the Industrial Reports series - thank you.
PN1090
Now, in that case the Full Bench was examining the approach Munro J took to the interpretation of this and Munro J bracketed his analysis - and the Full Bench seemed to concur that this is the appropriate way of doing it - around a number of different sorts of headings and they were the work in industry, the nature and source of the employment conditions, the union and what award coverage existed, whether there was regulation available by way of State Industrial Commissions, Australian Industrial Authorities, what the interests of the employees were, what the scope of Federal Award regulations and whether there were any particular considerations that might be used.
PN1091
Now, in relation to the issue of the interest of employees, we say, really, that is a matter that has to be determined in the context of section AAA2, so there's no real further need to address you on that, I would say. As far as the work is concerned, the work is clearly the transport and delivery of oil and fuel and LPG by truck. It is a matter which is clearly within the confines of the Transport Workers Union as the appropriate union and it is within the industry which is identifiable, which is oil industry work. Now, fundamentally, we would say: well, this industry is clearly different to that of education, which is what the basis of this decision was.
PN1092
The industry is one which is, by and large, essentially the same throughout Australia. Finemores, Mobil, Shell, they are all national companies and they are the main competitors, or they are amongst the main competitors with Peak Petroleum. Gulf Petroleum, which is a much more local base operation, as I understand it, you have heard evidence from Mr Dawson that they are also bound by the Oil Agents and Contractors Award, and that is not contested evidence. Now, we would say clearly there's a degree of uniformity as between the industry and the nature of the regulation across Australia in that the need for dangerous goods licences, the Australian Institute of Petroleum passports, to do this sort of cartage work shows the importance of industry standards within the industry generally.
PN1093
Regulation is found within the industry. There are, as my friend has alluded to earlier today, that there are regulations concerning the length of time people spend driving and there are, sort of, numerous bodies which examine this sort of work. So we say that the industry is clearly identifiable, it is part of the industry which is addressed by the Oil Agents Award, it is an industry which is fundamentally subject to Federal Award regulation, irrespective of whether the Federal Award is used as the underpinning Award for enterprise agreements. We would say to the parties, that is the way most employers operate.
PN1094
Most employers are involved in enterprise agreements and they base it upon the Oil Industry Award, the Oil Contractors Award. There's no historical State-centric basis to the regulation in the oil industry. My friend has tried to indicate that the Transport Workers General Award is something that is capable of covering. Well, maybe it is capable of covering but it is not something which fundamentally covers people in this industry. The industry is fundamentally subject to Federal Award coverage. While there may be workplace agreements subject to the Western Australian Workplace Agreements Act in place within the industry, the Government policy has indicated clearly what is going to happen to those and how they are going to change.
PN1095
So we would submit, in relation to those aspects, there are cogent reasons, there are very good reasons for saying that the general public interest says that this matter should continue to be deal with, it is not a question where you should be ceasing to deal with it. Now, as I indicated earlier, the onus is upon us to satisfy you that it is not in the public interest to cease dealing with a dispute and we would say: well, look, you know, there are a number of reasons here, a number of reasons here, for not doing so. We would submit that the TWU and the Federal Award are the dominant parties when in transport of this industry.
PN1096
It is clearly a case that the State Award is - seems to have relatively little impact in this area and if you look at the general scheme of the Act award minimums are fundamental to the basis of the Act. We would further say that where agreements are presented on a take-it or leave-it basis as a pre-condition to obtain employment, that it is in the public interest that there be properly set award minimums. We would also say in relation to some particular elements that the Federal Award provides for a meaningful dispute resolution procedure. The absence of such a procedure from these agreements, we would say, particularly the absence of a procedure which is cost-free and does not clearly allow the employer, or more accurately, the third party, which is the employer or association, to choose the independent arbitrator who, as the evidence can be, can very easily be chosen to be a silk, leading to the employee and the employer having to share the cost of QC wages for, you know, the purpose of the arbitration.
PN1097
Now, that is clearly - that is clearly got to be something that is relevant to the public interest. The - what it does, is it creates a situation where the employees are left with little recourse other than to leave. It is either the employers way or the highway, it is that at the time that they sign the agreement and it is that at the time if they have any difficulties along the way, because they had no alternative. They can't go to the Commission, the only place they can go is an independent arbitrator jointly chosen, but if not chosen is supplied by the Chamber of Commerce and Industry.
PN1098
Similarly, the - our views have been made clear through both the evidence and the evidence of the witnesses as well in relation to safety and appropriate regulation. Now, again, my friend this morning said: well, look, regulations shouldn't be done through the Award. He said: well, you know, it's appropriate done through a fatigue management plan. Now, we would say: well, that is partly true, all right? It is partly true, we can't deny that. What we do say is that the setting of appropriate minimums and appropriately developed wage structures through awards is what prevents employees from having to work excessive hours.
PN1099
At the present time they are there in a situation where, irrespective of the number of hours they get the same fixed rate along the way, which puts them into a situation where they have to work more hours to get the same rate of pay as they would under the award. Now, the evidence clearly was that if you work more hours you have got an increased risk of fatigue. Increased risk of fatigue can lead to an increased risk of safety concerns and that safety concern is not just the truck rolling over but it is spillages at appropriate sites and the way fuels are dealt with generally. Finally, although my friend raised this morning the repeal of section 94, we do wish to raise that there are strong reasons in a public interest sense for examining the matter in an industrial equity sense.
PN1100
Section 3 and section 88 are still there talking about that, they are still talking about appropriate award minimums and in a situation where you have a vast pay differential as between the award and agreements where there are no productivity situations, the only difference between - the only productivity improvement in this case is the fact that you don't have to pay penalty rates for working outside of - well, there is an even an enormous amount of hours. You know, you - any hour is equivalent to any other hour and we would say: well, the company is operating at a vastly superior cost advantage as compared with its competitors and it is doing so solely at the expense of the employees.
PN1101
It is not doing so because it is doing better runs, it is not doing so because it is doing it cleverer, it is doing it solely by saying: you get one fixed rate here, you know, you know what the deal is, you sign here or you go somewhere else. All the guys say: well, this is the only alternative, we've got to sign here. So to conclude, fundamentally, we would say: look, your primary consideration is the views of the employees and the employer but where there is a divergence we say: you must go to the general public interest concerns. We would - clearly, you also should - should take into account the public interest generally before you come to that stage, but a primary consideration should be the views of the employees and employers.
PN1102
We would say the public interest must be examined in the light of the objects of the Act and the general schemer of the Act. Those are found through section 3, through section 88, but more importantly and - or perhaps just as importantly, through the nature of the no-disadvantage test in relating to how agreements are to operate. We would also say that the change of Government, the Government policy which will ultimately - or more relevantly, the Government policy which indicates that the Government does not support this form of arrangements, certainly as it is presently constituted, should say to you: it is not in the public interest that this continue.
PN1103
MR UPHILL: We say that the work industry at Peak Petroleum is clearly such that it falls within Federal Award regulation, nature and source of employment conditions was clearly and has always been Federal Award regulations in this areas and so we would suggest that the public interest generally is clearly to say: you should not cease dealing - sorry, yes, you should not cease dealing with this dispute - that you should not cease dealing with this dispute and that you should continue to hear the matter.
PN1104
It does not conclude it here today. It does not in any way finish this matter but what it does do is allow the parties to continue with where the matter should go. Those are my submissions, if the Commission pleases.
PN1105
THE COMMISSIONER: Thank you. Mr Uphill?
PN1106
MR UPHILL: Commissioner, there's nothing further. I think any additional comments from myself would simply be repeating what I've already put to you.
PN1107
THE COMMISSIONER: Very good, thank you. I intend to reserve my decision in relation to this matter. There are some aspects of the evidence that I want to revisit because I believe there's some relevant witness evidence that has been adduced for the proceedings. I will hand my decision down in due course. Commission adjourns on that basis.
ADJOURNED INDEFINITELY [4.46pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #U1 COPY OF STATE TRANSPORT WORKERS' GENERAL AWARD PN25
EXHIBIT #U2 REVIEW OF WORKPLACE AGREEMENTS ACT PN31
EXHIBIT #U3 COPY OF MINIMUM CONDITIONS OF EMPLOYMENT ACT PN45
EXHIBIT #U4 FATIGUE MANAGEMENT CODE OF PRACTICE DOCUMENT PN55
EXHIBIT #U5 ALP POLICY STATEMENT DOCUMENT IN RESPECT TO INDUSTRIAL RELATIONS PN69
EXHIBIT #U6 MEDIA STATEMENT FROM THE MINISTER FOR LABOUR RELATIONS DATED 20/03/2001 PN79
MARK VICTOR QUACKENBUSH, SWORN PN91
EXAMINATION-IN-CHIEF BY MR UPHILL PN92
EXHIBIT #U7 COMPLIANCE FORM A PN153
CROSS-EXAMINATION BY MR DUFFIN PN158
EXHIBIT #T2 LETTER TO MR GANZER PN192
EXHIBIT #T3 RATES COMPARISON PN204
EXHIBIT #T4 LETTER FROM MY WINN PN224
EXHIBIT #T5 SUMMARY OF MINIMUM CONDITIONS OF EMPLOYMENT ACT PN225
EXHIBIT #T6 DOCUMENT FROM WEBSITE OF DEPARTMENT RE WHAT GOVERNMENT INTENDS DOING PN260
WITNESS WITHDREW PN341
CLIVE JOHN HOOD, SWORN PN344
EXAMINATION-IN-CHIEF BY MR UPHILL PN345
CROSS-EXAMINATION BY MR DUFFIN PN366
WITNESS WITHDREW PN417
JACK LONGTHORNE, SWORN PN421
EXAMINATION-IN-CHIEF BY MR UPHILL PN421
CROSS-EXAMINATION BY MR DUFFIN PN444
RE-EXAMINATION BY MR UPHILL PN516
WITNESS WITHDREW PN522
RAYMOND JOHN HOWTING, SWORN PN529
EXAMINATION-IN-CHIEF BY MR UPHILL PN529
CROSS-EXAMINATION BY MR DUFFIN PN557
WITNESS WITHDREW PN607
WAYNE MICHAEL DUNPHY, SWORN PN611
EXAMINATION-IN-CHIEF BY MR UPHILL PN611
CROSS-EXAMINATION BY MR DUFFIN PN637
RE-EXAMINATION BY MR UPHILL PN700
WITNESS WITHDREW PN716
PAUL WAYNE GANZER, SWORN PN717
EXAMINATION-IN-CHIEF BY MR UPHILL PN717
CROSS-EXAMINATION BY MR DUFFIN PN763
EXHIBIT #T7 COPY OF WORKPLACE AGREEMENT PN792
RE-EXAMINATION BY MR UPHILL PN805
DENNIS ROGER SEIFFERT, SWORN PN852
EXAMINATION-IN-CHIEF BY MR DUFFIN PN852
EXHIBIT #T8 STATEMENT OF D.R. SEIFFERT PN869
CROSS-EXAMINATION BY MR UPHILL PN889
WITNESS WITHDREW PN948
TIMOTHY JOHN DAWSON, AFFIRMED PN950
EXAMINATION-IN-CHIEF BY MR DUFFIN PN951
EXHIBIT #T9 STATEMENT OF TIMOTHY JOHN DAWSON PN956
CROSS-EXAMINATION BY MR UPHILL PN1010
WITNESS WITHDREW PN1033
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