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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 2, 16 St George's Tce, PERTH WA 6000
Tel:(08)9325 6029 Fax:(08)9325 7096
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT POLITES
C2001/3442
APPLICATION TO STOP OR PREVENT
INDUSTRIAL ACTION
Application under section 127(2) by Westrail Freight
Employment Pty Limited re alleged threat to engage in industrial
action over the performance of work in a manner different from
that in which it is customarily performed
PERTH
11.22 AM, TUESDAY, 19 JUNE 2001
PN1
MR R.C. WELLS: I appear for the Rail, Tram and Bus Union.
PN2
MR D.F. JOHNSTON: I appear on behalf of Westrail Freight Employment Pty Ltd in response to the notice of listing issued by the Commission yesterday. I do have to say, your Honour, that I am instructed the Westrail Freight Employment Pty Ltd has not yet been served with the papers originating this matter.
PN3
THE SENIOR DEPUTY PRESIDENT: Thank you Mr Johnston. Yes, Mr Wells, what is the position?
PN4
MR WELLS: With respect to the serving of the notice papers that is correct, your Honour, it hasn't been done at this stage.
PN5
THE SENIOR DEPUTY PRESIDENT: Well, perhaps you might tell me what the matter is about and then if Mr Johnston wants to make an application he may.
PN6
MR WELLS: Right. The matter is as laid out in the application order to stop or prevent industrial action, as registered in the National office in Sydney. The grounds upon which the application is made are printed but I will read them out formally for the Commission:
PN7
The grants on which this application are made is follows: The Westrail Freight Employment Pty Ltd WFE employs locomotive drivers and drivers assistants being the train crew to operate the locomotive in accordance with the train schedule and train crew roster. These employees are covered by the Westrail Freight Employment Pty Ltd/ARTBIU/AMWU/CEPU Certified Agreement 2000, Certified Agreement and the Western Australian Government Railways Locomotive Enginemen's Award 1973, the award. Parties directly affected by the industrial action are the applicant and Westrail Freight Employment Pty Ltd Westrail Centre, West Parade, Perth.
PN8
The certified agreement we talk about is No C60732 of 2000, being a document or award that was by determination in Perth on 3 October 2000. In that agreement itself it mentions the parties at clause 3, mentions the date of operation being the date of operation expire - or the agreement is to remain in force until 31 August 2001.
PN9
So, we say that the agreement is in fact in force, and in respect to the parties bound we say that the first dot point in clause 3: Westrail Freight Employment Pty Ltd or any successive signee transmittee, a party - the second dot point being the Australian Rail Tram Bus Industry Union.
PN10
The issue that the application concerns itself is to be found at clause 5 where it talks about employment conditions and in clause 5 of that agreement it reads:
PN11
Subject to clause 10 and except or otherwise inconsistent with this agreement this agreement shall be read in conjunction with the following awards and agreements as varied 31st October 2000.
PN12
The first award it refers to there being the Government Railway Locomotive Enginemen's award 1973 to 1990 being the State award.
PN13
The actual matter that draws us here at point 2 in the application, it says:
PN14
Where necessary a train crew may be called upon to drive a car from the depot to a pre-determined changeover point away from the depot where at they relieve a crew already working a train, the crew being relieved then drive the car back to the depot.
PN15
That was an arrangement that had been long existing with Westrail, despite the workers returning to the award that agreement remained and was the subject of some discussion between WFE and the Union in January to the extent that that practice was agreed to there was no argument. However, when we arrive at point 3:
PN16
On or around 8 June 2000 a locomotive driver was instructed that in addition to driving a car to a changeover point the locomotive crew would be required to drive a second car to another location, leave the car at that location and proceed in the first car to their rostered changeover point.
PN17
That we say is an additional requirement that is not the subject of the Certified Agreement, not the subject of any discussion between the parties and, in fact, there had been discussion against the parties detailing that it was not the work of locomotive engine drivers on the award, bearing in mind a substantial number of locomotive engine drivers on AWAs they make no reference to their work practices.
PN18
The locomotive driver declined to perform this additional work on the basis that it was outside the Certified Agreement between the Rail Tram and Bus Union and WFE to govern their conditions for employment. WFE in response has refused to pay the locomotive driver and reduce the paid hours of employment of the other locomotive crew member. WFE has stated that it intends to pursue disciplinary action against the driver -
PN19
and we have a letter WFE have sent to the driver concerned to that effect. WFE has indicated that in the same circumstance the action mentioned in the paragraph immediately above will be ongoing. We say that the action undertaken by WFE is not in accordance with the terms of the Certified Agreement, so:
PN20
the action taken by WFE is not in accordance with the Certified Agreement also for the reason WFE has failed to observe the terms of the dispute settlement procedure -
PN21
which we say should have been a status quo not for unilateral implementation of action against the locomotive crew under the Certified Agreement but with conditions.
PN22
So, that the action taken by WFE is industrial action as defined in clause 4 and the Workplace Relations Act, 1996, the reasons stated at point 6 and 7, that is:
PN23
That the action was not in accordance with the Certified Agreement and that they failed to abide by the dispute settling procedure.
PN24
Finally, we say the action taken by WFE is industrial action as defined by clause 4 of the Workplace Relations Act in that:
PN25
It advanced the performance of work in a manner different from that which is customarily performed.
PN26
The situation between the parties, of course, is that the Certified Agreement does not expire until 31 August, part of the terms of the agreement between the parties is that they will have further discussions as to a new industrial instrument to prevail after that date.
PN27
It is seen by the Unions as a preemptive move by the employer in attempting to introduce different work practices without discussion of remuneration being mentioned and puts an onus on workers to perform the work at the former rate covered by the Award. So for those reasons we say that in terms of the jurisdiction deal with the Commission, that industrial action is happening, it is certainly threatened as evidenced by the question of punishment upon the worker and is likely to repeat itself in the short term.
PN28
We say that industrial action is in relation to work that is regulated by a Certified Agreement that is in term and of course the application is brought by the Union and is a party to the Agreement. So for those reasons we believe that jurisdiction exists to hear the matter, in respect of the matter, we do have a witness to testify to the events as they proceeded from 8 June onwards, if it please the Commission.
PN29
THE SENIOR DEPUTY PRESIDENT: Right. Do you want to call the witness?
PN30
MR WELLS: Yes, please.
PN31
PN32
THE SENIOR DEPUTY PRESIDENT: Thank you Mr Curran, please sit have a seat. Yes Mr Wells?
PN33
MR WELLS: Your full name please Mr Curran?---Brian James Curran.
PN34
You reside at?---92 Phoenix Road, Hamilton Hill.
PN35
Can you tell us who you are currently employed by?---I am employed by the Australian Rail Tram and Bus Industry Union, WA Branch, as a - the Locomotive Division Secretary.
PN36
Mr Curran do you have any knowledge of events leading up to the occurrences at Wagin on 8 June and beyond?---Yes I do, yes I do. If you would like me to elaborate?
PN37
Before you do, I just might ask you whether you can identify these documents?---Yes I do recognise these documents.
PN38
THE SENIOR DEPUTY PRESIDENT: Have you seen these Mr Johnston?
PN39
MR JOHNSTON: No, your Honour, I haven't seen these documents before. Perhaps we have actually seen the one dated 13 June, I think I have seen a copy of that document, but the handwritten document the one of 9 June I haven't seen before.
PN40
THE SENIOR DEPUTY PRESIDENT: Thank you, well what do you want to do with these documents?
PN41
MR WELLS: I wish to submit them as evidence through the witness.
PN42
THE SENIOR DEPUTY PRESIDENT: All right, well perhaps we ought to do them one at a time?
PN43
MR WELLS: Thank you.
PN44
Mr Curran, the first document there is a letter directed to Mr Unwin, can you please tell the Commission what you know about that letter?---Yes, the - that letter relates to actually a phone call originated this about a week before on about Monday, the 1st, a phone call between the Regional Operations Manager, Mr Bell and myself, who indicated to me late on the Friday evening of the 1st that he - he sought the Award crew at Wagin the next day to - to act in the manner you previously described. I informed him that that was contrary to the agreement that we had and that I would speak to the two relevant drivers. I did. They indicated that they had no desire to work outside their agreement on the - on the 2 June it appears that they weren't required to in any case, but the same matter arose the following week and on 8 June Robert Stone, one of the drivers involved had spoken to Damian Unwin, who is the Acting Regional Operations Coordinator at Wagin and the letter indicates the nature of that conversation and I will hark back to the previous Monday, which was the - must have been about the 4th I would assume, where the other driver involved on that weekend, who was under the impression that he was going to be requested to carry out duties that he thought were outside his agreement and Award, that was a Peter Foy, sorry on the Tuesday, because the Monday was a public holiday, he was requested when he went back to work - arrived at work on the Tuesday to ring Mr Bell. Mr Bell had indicated to him that he was very concerned about the fact that the Award drivers had declined, or indicated they would decline to carry out those duties and that if they - if they did so in the future, he would be disciplining them. So, on the Friday it was obvious that a conversation took place between the Acting ROC and one of the drivers that was booked up for the next day.
PN45
So how did that first document arrive in your hands?---It was faxed to the Union office by Robert Stone, subsequent to a phone conversation I had had with him where he expressed his concern about what was being put to him. I actually spoke to Mr Bell that afternoon on behalf of Robert Stone and his co-driver the next day, Robert Fleay, but my words didn't have any bearing on the result obviously.
PN46
In respect to your conversation with Mr Bell do you recall which day it was?---Yes, I had I think about three conversations, certainly the first was on Friday the 1st and if my memory serves me correctly again on Friday the 8th.
PN47
Did you make it clear that in your view it was a change from the Certified Agreement?---Certainly.
PN48
What can you tell about the second - - -
PN49
THE SENIOR DEPUTY PRESIDENT: Well do you want to tender the first letter?
PN50
MR WELLS: Yes, please.
PN51
THE SENIOR DEPUTY PRESIDENT: Yes. Any objection Mr Johnston?
PN52
PN53
THE SENIOR DEPUTY PRESIDENT: Yes Mr Wells?
PN54
MR WELLS: Thank you.
PN55
The second letter, is a letter addressed to you?---That's correct.
PN56
How did that letter arrive?---That arrived in the post on, I believe it was Wednesday, just gone, which was about the 13th I think and it was as a result of the - a conversation that I had had with Mr Stone on the Saturday after he had been stood down for the day and I suggested he put in writing the events of that day and send them to me, which he did in a - in a letter which as I said arrived either Wednesday or Thursday last week.
PN57
I would ask that that letter be tendered.
PN58
THE SENIOR DEPUTY PRESIDENT: Yes, any objection Mr Johnston?
PN59
PN60
THE SENIOR DEPUTY PRESIDENT: Yes Mr Wells?
PN61
MR WELLS: On the matters arising from that letter how many conversations had you had - can you recall the conversations you had with Mr Stone?---Yes, I had a number of conversations, I had one on Friday the 8th, when he rang our office and indicated that he had had a conversation with the Acting ROC at Wagin, who had indicated to him that he had certainly had an instruction about what was to occur the next day if either driver declined to carry out the duties that were put to them in regard to splitting up and driving separate cars. He further rang me on the Saturday afternoon, on the mobile phone, to indicate to me that he had been stood down by the ROC Wagin, who had driven down from Merredin that day. I asked him again to put in detail what had occurred. He had indicated to me that the upshot of what had occurred that day, was that he had been stood down. His co-driver, Robert Fleay had been sent home and told he would be paid two hours pay, not required. That the train that they were going to work at from Nyabing to relieve a crew at Nyabing, would be stabled at Nyabing and would be worked the next day by an AWA crew that had been booked up the previous day for just that job, an 11 hour shift, instead of 8 and that the relief of the - of the crew would be carried out by taxi from Katanning.
PN62
Were there other conversations with Mr Stone on this matter that you recall?---Yes, he certainly was very upset at being stood down and losing a day's pay in the manner that it had been done on the Saturday and that's why I suggested that he calm down and put in writing exactly what had occurred, which he did. He further - and that was the letter that's there dated 9 June. He further rang me later in the week, when he had received the letter dated the 13th from R. Stone, which is yet to be submitted, expressing his concern about the threats that were in that.
PN63
Thank you. So to ask you to have a look at the third letter in that group, the letter from WFE, have you seen that letter previously?---Yes, I saw it when the mail was handed to me on as I said, Wednesday or Thursday last week.
PN64
I would ask that letter be tendered as in evidence.
PN65
THE SENIOR DEPUTY PRESIDENT: Any objection to this letter being tendered, I think this is the one you have seen Mr Johnston isn't it?
PN66
PN67
THE WITNESS: Actually it was probably the Friday I think.
PN68
MR WELLS: Can you tell me about that letter?---Yes, that letter confirmed the phone conversation that I had had with Robert earlier that day, or the previous day. He was again upset that he was - that firstly he had lost a day's pay the previous Saturday, because he refused to do what he believed he had no obligation to do and that he further felt threatened that he was - his employer then writing to him indicating they were going - they had every intention of punishing him a second time for something he believed he should never have been punished for in the first place and quite rightly he was very concerned.
PN69
Mr Curran in your capacity as Division Secretary, which group of workers do you look after in terms of the Unions operation?---Locomotive drivers within this State outside of the north-west Mr Wells, that is drivers that work for National Rail Corporation and are stationed at Kalgoorlie and Kewdale for drivers that operate trains for - are employed by WFE based at about 10 various locations in the southern half of the State. For drivers with ASR based in Kalgoorlie and also for country passenger drivers and rail car drivers on the suburban system.
PN70
Thank you. Mr Curran are you conversant with the Westrail Freight Employment Proprietary Limited/ARTBIU/AMWU/CEPU Certified Agreement 2000?---I am.
PN71
How did you gain knowledge of that document?---I was involved in negotiating that with the Task Force set up by the previous coalition Government in this State last year and in fact I was present when it was ratified in this Commission in October last year.
PN72
Are you conversant with the work practices of Loco enginemen?---I am.
PN73
Under the terms of the Certified Agreement?---I am.
PN74
With respect to driving motor vehicles to the changeover point, what can you tell the Commission about that?---Well the locomotive drivers that are employed by WFE and whose services are somehow transferred to the operations of AWR, those drivers under the Certified Agreement are in fact covered by the Locomotive Enginemen's Award, which doesn't have any ability for them to drive motor cars at all. However, it has been a practice in the last few years under different industrial instruments with the previous Westrail freight system that drivers would drive themselves to and from relief points and shortly after the takeover of the Westrail Freight Services by ARG, the General Manager of AWR indicated to drivers throughout the system that it would be a requirement of them to drive motor cars. That resulted in a - in some conversations between the Union and representatives of ARG and WFE and as a result there was an agreement struck that Award drivers would drive themselves to relief points for the purpose of relieving other crews and/or being relieved and driving themselves as a crew back to their home location and that agreement was really for a month, but has continued from January onwards this year.
PN75
Was that agreement a registered agreement in the Commission?---Not to my knowledge.
PN76
In respect of the additional requirement that's mentioned at point 3, this question of driving a second - the same crew driving two vehicles for the purpose of dropping one off, has that practice been agreed to, to your knowledge?---It has never even been raised to my knowledge, much less agreed to.
PN77
Have you heard of that practice previously?---Not, not under the Award or Certified Agreement, certainly not.
PN78
I have no further questions for this witness at this stage, your Honour.
PN79
THE SENIOR DEPUTY PRESIDENT: Mr Johnston are you in a position to cross-examine this witness?
PN80
MR JOHNSTON: Your Honour, there have been a number of matters raised through the witness in relation to conversations he held with managers of Australian Western Railroad, I have had no opportunity obviously to talk to these people to establish what may or may not have happened, so I am somewhat at a disadvantage in respect of cross-examination of the witness at this point and I would perhaps make application at this point for an adjournment of the proceedings, so that instructions can be taken in relation to the evidence given by Mr Curran and also to give the Union the opportunity to make proper service of the documents initiating these proceedings, as required by the rules of the Commission.
PN81
The issue of section 127 orders is a fairly serious matter, as your Honour would be aware and one that the Commission, I am not suggesting that the Commission takes any of its responsibilities lightly, but in relation to the issue of section 127 orders, the Commission is normally very particular about the evidence it receives and the processes that are gone through in order to bring the matter before the Commission and to assist the Commission in making a decision.
PN82
So, we believe that it is important that the papers initiating this matter are properly served, or that the Union if it's unable to serve in accordance with the rule 6 in order for the substituted service by facsimile or whatever means it gleans would be appropriate, but also now that we have been made aware of some of the detail of the matter that the Union wishes to put before the Commission, to allow me to get some instructions and try and contact the people concerned.
PN83
I believe that Mr Bell, who as we mentioned may not actually be available today, we believe he may be in the wheatbelt somewhere up around Merredin, so I am not sure that I can contact him, but I will certainly endeavour to make what contact I can if we could be granted an adjournment for possibly a couple of hours at least to establish what information I can actually get today.
PN84
THE SENIOR DEPUTY PRESIDENT: Yes, well as to the first matter Mr Johnston I think, you are here in one sense, but I agree that you ought to have been served with the documents and we shall make sure that you don't leave the Commission without a copy of all of the documents and Mr Wells I would be grateful if you would take on notice the fact that this is a serious proceeding and the documents ought properly be served in accordance with the Commission's rules in future applications and I do think Mr Johnston it's reasonable that you get some time to obtain proper instructions.
PN85
Mr Wells is there anything other than that you want to put before the Commission. We will certainly reserve the cross-examination of this witness, but I think in order to expedite this proceedings it is important to put as much of your case as you can now, so that Mr Johnston can obtain proper instructions. What other matters did you wish to put?
PN86
MR WELLS: There are no other matters, other than the industrial action happening here, but I what I would wish to advise the Commission of is the status of negotiation between the parties which is intended to arrive at a replacement document as at 30 August and in terms of that we would see the industrial action as embarked upon here, as we see it, by the employer is that designed to further the employer's interest unfairly.
PN87
THE SENIOR DEPUTY PRESIDENT: Very well, well we will just ask Mr Curran. Mr Curran would you mind leaving the witness box, your evidence is not completed and therefore you are not entitled to discuss any evidence with anybody until your cross-examination is over, but thank you.
PN88
THE SENIOR DEPUTY PRESIDENT: Sorry Mr Wells but there's no point in having Mr Curran sit there while you finish what you have got to say.
PN89
MR WELLS: Thank you your Honour. In respect of this matter we see it as part of industrial strategy by the employer to further their interests in respect of negotiation currently under way between the parties. We see it as an endeavour to apply further pressure on workers in the workplace from the point of view of coercing them to sign AWAs. The situation is that workers who are on AWAs have an entirely different agreement, one that is far more flexible, certainly one that the employer has made clear to the union that it would seek to have an award in much the same terms.
PN90
What we see here as we said, it is a blatant attempt to intimidate a group of worries who are award workers to perform in identical terms to workers under the AWAs and certainly not an agreement between the union and the employer and that the employer's motives here are certainly less than honest in terms of the action against the individual. In light of the action against the individual which we say is not consistent with the certified agreement and a lie. We would say that if the Commission is to grant an adjournment for any length of time that the employer ought not conduct itself in the manner that it has here.
PN91
We believe we have established a prima facie case that the employer has, in fact, operated different to the terms of the certified agreement. If that be the case, they ought not to put that pressure on award based workers until such time as the matter has been clarified. We do view this extremely seriously bearing in mind that the Rail Terminal and Bus Union also has a heavy dispute with ASR which is the sister company to WFE and they are part of the same ARG group. So we would ask that an adjournment is granted, that an adjournment not permit Westrail to continue in the fashion they have in this matter. If it please the Commission.
PN92
THE SENIOR DEPUTY PRESIDENT: Mr Wells, can I just clarify one thing before you sit down and we consider the adjournment. I just want to understand what you say about award coverage. Now, I know you did deal with it in opening but I just want to make sure I understand it and agreement coverage. You say Westrail Freight Employment Pty Limited is the successor to Westrail, is that right?
PN93
MR WELLS: No, not in those terms. I will explain the - - -
PN94
THE SENIOR DEPUTY PRESIDENT: Carefully so I understand what you say about award and agreement coverage.
PN95
MR WELLS: The situation was that Westrail, it was the decision of the West Australian Government to put the Westrail freight business up for tender. They chose this course of action through the early part of 2000, they pursued it further through 2000 to eventually sell to ARG. How the process went was that Westrail and the West Australian Government set up a task force. That task force set up a company named Western Freight Employment Pty Limited. When they came before the Commission in September and early October to arrive at the Westrail Freight Employment Pty Limited Certified Agreement 2000, there were in fact no workers working for WFE. WFE was, in fact, a medium set up by West Australian Government to absorb the labour and allow the transmission of labour to the new company.
PN96
It also set the terms and conditions that that new company would employ that labour for and it was expected that inside a period of 8 months then the purchaser, whoever they were to be, would then have had ample opportunity to establish an award and a certified agreement in the Federal Commission to take over that operation.
PN97
THE SENIOR DEPUTY PRESIDENT: So you say the certified agreement in 2000, the WFE certified agreement was, in fact, a Greenfields agreement, was it?
PN98
MR WELLS: It was, in fact, the nature of a Greenfields agreement. It wasn't until 16 December 2000 that ARG became the owner. In the scheme of the tender to become the owner ARG were obliged to buy Western Freight Pty Limited by all the shareholders in that company. There were guarantees by the Western Australian Government of - and it was enforced through the terms of sale, the people who were on various awards and agreements would, in fact, have those awards and agreements carried over into WFE and subsequently into the new company. There was a guaranteed period of employment for 24 months and the like and that is the issue here. It is the issue that the existing awards were picked up, I have a copy of that decision of the Commission, if the Commission pleases.
PN99
THE SENIOR DEPUTY PRESIDENT: Yes. So you the 2000 certified agreement, in fact, bound WFE.
PN100
MR WELLS: That's correct.
PN101
THE SENIOR DEPUTY PRESIDENT: Yes.
PN102
MR WELLS: I would say that is to be found at clause 3. The period and date of operation is to be found at clause 4, so the agreement is within the term. And at 5 the employment conditions picked up a point in time, namely 31 October, they were varied to that date and in respect of those workers that we talk about now, they were in fact covered by the Government Railways Locomotive Employees Award 1973.
PN103
THE SENIOR DEPUTY PRESIDENT: I see.
PN104
MR WELLS: Now, the nature of this document, it did have a clause 7: Special Conditions for former Westrail employees and in terms of the document itself it made clear what their conditions of employment were to be. This definition of employment can further be found in the offers of employment that were made to employees where the identical offer was made by WFE to transmit their terms and conditions of employment over. I have a copy of that document if the Commission wishes to have that as well.
PN105
PN106
MR WELLS: Your Honour, in terms of W5 the union says that it is quite clear in the second paragraph what, in fact, has been offered despite the fact that ARG were not on the scene at that time.
PN107
THE SENIOR DEPUTY PRESIDENT: Sorry, what - - -
PN108
MR WELLS: In the second paragraph it reads:
PN109
Your appointed position and home base are designated at the end of this letter, the terms and conditions of employment are detailed in the attached proposed Westrail Freight Employment Pty Limited Certified Agreement. In essence, your ongoing rate for pay and conditions of employment will not change.
PN110
Now, the understanding that the union has and that which is the same understanding that the workers have is based on those words and we say that those words, in fact, have meaning in exhibit W4 and can be found to have that meaning we say in clause 5.
PN111
THE SENIOR DEPUTY PRESIDENT: And what do you say the award says about the duties, if anything?
PN112
MR WELLS: The award talks about locomotive engine drivers, it is an old award and it does not envisage car driving as part of their task at all. Car driving became part of the locomotive engineman's work with the existence of AG21 which is a document that was signed by the LED, that's the Locomotive Engine Drivers, Firemen Cleaners Union, a State based union in 1996. In exchange for a rate of pay in excess of a driver's rate of pay they undertook to do a wider range of tasks. There's no scientific basis about that offer, it was made in the rates of pay and it came to be a document that was very much scorned by most locomotive engine drivers.
PN113
The situation was that they did drive cars to the change-over point and when ARG became the owners of WFE by reason of the scheme of arrangement between the West Australian Government and the purchaser, ARG. We did have talks with Mr Johnston, Mr Johnston made it clear that it was very difficult for them to operate in terms of the award, would we mind if the car driving continued, toilets were to be cleaned and the like. To which there was an in kind agreement, as I said it didn't go past the end of January, I went on leave for a period of 10 weeks, the practice stayed but nonetheless the practice was only of crews driving themselves to the change-over point for the service that they were to operate. It was not - - -
PN114
THE SENIOR DEPUTY PRESIDENT: Was it documented anywhere, Mr Wells?
PN115
MR WELLS: It is documented but not clearly enough for me to give a document to the Commission. It was to be the work of a committee comprised of Mr Curran and some selected loco drivers to finally come to terms with Westrail on the question, it didn't happen.
PN116
THE SENIOR DEPUTY PRESIDENT: Just pardon me one minute while I just make sure I have asked you everything I want to. Yes. I see the agreement has a disputes resolution procedure in it.
PN117
MR WELLS: Yes.
PN118
THE SENIOR DEPUTY PRESIDENT: It's possible to say, I guess, that the first couple of steps may have been loosely followed in that the matter was raised with local management. But it doesn't seem to me unless you tell me to the contrary that 11.4, 5 or 6 have been followed.
PN119
MR WELLS: In terms of the position of the union, the position of the union is that the action was taken by Westrail before 11.4, 5 and 6, were in fact carried out. So that's the position that we say was not met and we say that in terms of the application for an order points that matter out as we say at point 7 of the application where we say the action undertaken by WFE is not in accordance with the certified agreement so we agree with that point, your Honour.
PN120
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Is there anything else, Mr Wells?
PN121
MR WELLS: Another point that we would make and I can find material on this if it is required, we did note that in a brochure issued in connection with the privatisation the arrangements you asked about earlier was expressed in these terms:
PN122
The purchaser of Westrail Freight is required to buy all shares in Westrail Freight Employment Company and to guarantee all of its employment obligations. These obligations include leave entitlements, the employment guarantee period, the current terms and conditions of employment and the payment of any post-sale redundancy.
PN123
And you can find that those terms are within the agreement. It was clearly within the scheme of arrangement that the West Australian Government when they sold the business they also intended to maximise the take-up of employees from Westrail to the new company and they, of course, did that by guaranteeing their existing terms and conditions of employment would continue and as I previously said, the vehicle for doing so was a certified agreement to which the Commission already has a copy. If it please the Commission that is the case.
PN124
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Wells. Mr Johnston, I certainly propose to acquiesce in your request to obtain some appropriate instructions. I propose to adjourn the matter to 4.15 this afternoon to enable you to get such instructions as are possible. I will then proceed with the matter from an early hour tomorrow morning if we don't finish tonight. Regrettably I have got sitting commitments, I have got matters tomorrow and sitting commitments in Melbourne on Thursday which mean I cannot extend the stay but we will fit it in as best we can tonight and tomorrow. We will adjourn on that basis until 4.15.
SHORT ADJOURNMENT [12.09pm]
RESUMED [4.20pm]
PN125
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Johnston?
PN126
MR JOHNSTON: Thank you, your Honour. Perhaps it might be appropriate if we recommence with the cross-examination of Mr Curran from this morning.
PN127
THE SENIOR DEPUTY PRESIDENT: Yes, by all means.
PN128
MR JOHNSTON: So that my friend can have all his evidence before the Commission before we make any submissions.
PN129
PN130
MR WELLS: Just a point, your Honour, before we commence this afternoon session. Arising from the opportunity of the adjournment, I sought advice from the national office of the Rail, Tram and Bus Union in respect of service to my friend. The advice from my office, and I have copies to tender there, was that the service was made yesterday at around 12 o'clock and verification of that is the facsimile, sir, facsimile notification arising from the transmission journal of the national office and I wish to tender that information to the Commission in order that there be no misunderstanding about service on my friend.
PN131
THE SENIOR DEPUTY PRESIDENT: Can you tell me where it is? I see, it has got an asterisk on it.
PN132
MR WELLS: It has an asterisk on the transmission journal.
PN133
THE SENIOR DEPUTY PRESIDENT: Well, perhaps you can deal with that later, Mr Johnston, if you need to.
PN134
MR JOHNSTON: Yes, happy to, your Honour. Thank you.
PN135
Mr Curran, in your evidence you stated, I believe, that you were conversant with the certified agreement that is the agreement between Westrail Freight Employment Pty Limited and the CEPU, AMWU and Australian Rail, Tram and Bus Industry Union?---Yes.
PN136
That's correct, yes. Do you have a copy of that agreement?---I haven't one before me.
PN137
Perhaps I can give the witness a copy of exhibit W4 which was handed up earlier today. Thank you. Mr Curran, the certified agreement at clause 5 refers to a number of awards and other agreements which have to be read in conjunction with the certified agreement. It's my understanding from the submissions of the union that the relevant award in relation to the matter before the Commission today, that is, the work of locomotive drivers, is the Government Railways Locomotive Enginemen's Award 1973 to 1990. Is that correct?---I agree.
PN138
Yes, thank you. Perhaps I could give you a copy of that award.
PN139
THE SENIOR DEPUTY PRESIDENT: I have got one.
PN140
MR JOHNSTON: You have? Thank you, your Honour. This is the award, and I assure your Honour, if your copy of that award is at 31 October 2000, that I don't believe there have been any amendments to it since that time, if you have a more up to date copy.
PN141
THE SENIOR DEPUTY PRESIDENT: Yes, thanks.
PN142
MR JOHNSTON: But I don't think there would be any substantial amendment. Now, Mr Curran, you said that you were conversant also with the work practices of, I think the term was locomotive enginemen. So you confirm that, that you know what locomotive enginemen do?---That's correct.
PN143
Yes. Okay. Now, it would be part of the work of locomotive drivers or locomotive enginemen, locomotive crew, let us say, to operate point levers to change points. Would that be correct, Mr Curran?---In some circumstances.
PN144
Yes. Okay. Now, would you say that that work of changing points, operating point levers, was covered by the certified agreement and the relevant award?---I am not sure the - of the question.
PN145
Well, would you say that the certified agreement and the award, in your view, covers the work of locomotive enginemen or drivers?---Yes. Yes.
PN146
Yes. Now, the operation of point levers in some circumstances, as you say, is part of the work of locomotive engine crew. So does the award, in your view, cover that type of work?---If there's a clause specifically relating to it. I don't know of it.
PN147
All right. So you don't know of any clause in the award that particularly relates to the operation of points levers?---No. Not as such.
PN148
No. Do you know of any clause in the award that would prohibit the operation of points levers by a locomotive crew?---Well, not necessarily. It has been common practice for a number of years and in particular the operations of points levers in two particular areas, that of outside of a depot. En route, as I understand it, was covered by the two-man crew agreement.
PN149
That's not an agreement which forms part of this award or forms part of a certified agreement?---That's true.
PN150
Okay. Now, locomotive crew also do something called roll by inspection. Would that be correct?---That's correct.
PN151
And that means that as one train passes another, the crew looks at the passenger train and checks for any irregularities on that train?---That's correct.
PN152
Can you draw the Commission's attention to any clause in the award for the certified agreement that specifically deals with roll by inspections by a locomotive crew?---No, I can't specifically point to that but of course there are other documents that all railway employees are obliged to contend with and they are Railway Rules and the appendix to those rules. And they apply to a variety of - a variety of employees.
PN153
Yes. So there are other documents outside of the award or the agreement, you are saying, which deal with matters which form part of the duties of locomotive crew?---Yeah. That's correct.
PN154
Yes. Now, can you take the Commission's attention to any clause or term of the certified agreement or award that deals with the driving of road motor vehicles by locomotive crew?---No, I can't do that, but traditionally drivers under the award never drove motor vehicles. There were the Westrail Freight Services and WAGR before them in other rail systems that I have been familiar with. That task was carried out by - by other staff.
PN155
Yes. Traditionally, Mr Curran, the second person on a locomotive used to shovel coal as well, isn't that the case?---That's correct.
PN156
Can you point to any clause or term of the certified agreement of the award that prohibits the operation of road motor vehicles by locomotive crew?---I can't point to a particular clause that defines that, no.
PN157
No. Mr Curran, can you point out whereabouts in the certified agreement or in the award it allows that, and I quote from the application of the union in this matter:
PN158
Where necessary a trade crew may be called upon to drive a car from the depot to a predetermined changeover point away from the depot whereat the reliever crew already working a crew. The crew being relieved then drive the car back to the depot.
PN159
Is there any provision in the award that specifies that method of working?---Not to my knowledge, no.
PN160
Thank you, your Honour. No further questions, Mr Curran.
PN161
THE SENIOR DEPUTY PRESIDENT: Any re-examination, Mr Wells?
PN162
PN163
MR WELLS: In terms of locomotive drivers driving cars, do you have any knowledge of how that came about, if it's not in the agreement?---Certainly in Westrail Freight Services. That came about as a result of a section 41 agreement in 1996. The previous union that looked after the interests of locomotive drivers and assistants in Westrail Freight Services, the LED, came to a section 41 agreement in the State Commission with Westrail Freight Services for an agreement to carry out their duties beyond the award duties and be rewarded financially to carry out those other duties. In particular, some of those duties relate to driving motor cars to and from relief points.
PN164
Is that section 41 part of the agreement now?---No, it certainly is not. As a result of the amalgamation between the Rail, Tram and Bus Union and the LEDF and CEU in 1999, the RTBU became the respondent effectively to the award and the AG21 Agreement and the union withdrew from that agreement in November 1999 and ultimately after some protracted circumstances in the State Commission, in July last year 2000, the award was reintroduced.
PN165
Was there an agreement with that award?---No.
PN166
No further questions for this witness, your Honour.
PN167
PN168
MR JOHNSTON: Your Honour, this is an application by the ARTBIU against Westrail Freight Employment Pty Limited seeking orders under section 127 that WFE, Westrail Freight Employment, cease engaging in industrial action. The claim that the industrial action being taken by WFE is the requirement on locomotive train crew whose terms and conditions of employment generally are covered by a certified agreement to which the union is a party with WFE, the requirement of such crew to drive two motor vehicles from a depot to a point away from the depot and then drive in one of those cars, leaving one car there, driving one of those cars to relieve a locomotive crew at a further point distant, that, they say, is the performance of work in a manner different from that in which it is customarily performed and that the terms and conditions of the work are prescribed wholly or partly by an award order of the Commission, certified agreement or an AWA or by an award determination or order made by another Tribunal under a law of the Commonwealth or otherwise by or under a law of the Commonwealth as provided in section 4 of the Workplace Relations Act.
PN169
So really, what the union appears to be saying is that the requirement by WFE, or the requirement on WFE employees to drive a car each rather than go together in a car and drive that car either on a shared basis or one person driving it, is a changed method of work performance, and the claim on its face is that the work is covered by a certified agreement. It would be WFEs argument that firstly the work spoken of is not covered by a certified agreement, certainly not the specific work which is being performed, that of driving cars and certainly the evidence so far would suggest that there is no reference to driving of cars in the certified agreement or in the awards which are to be read in conjunction with it.
PN170
However, I will come to that later in submissions. The alternative defence against the accusation of engaging in industrial action is that the action by an employer is authorised or agreed to by or on behalf of employees of the employer. That is also contained in section 4 of the Act under the definition of industrial action and will be WFEs submission that the requirement of employees to operate a motor car singly is an action that is authorised or agreed to by or on behalf of employees of the employer. We would further submit that the requirement to drive a car singly rather than have two people in a car in order to effect relief of a train crew is not the performance of work in any different manner from that in which it is customarily performed and we will bring evidence to show that this method of working has in fact been a practice for some time.
PN171
It was not something new that was introduced at Wagin on the 8th or 9 June, whatever the relevant date is that the union complains of, and that it in fact is a method of working which has been practised for some time. Your Honour, we have put up some evidence by way of documents which were exchanged or sent between the Westrail Freight Employment Pty Limited or the Australia Railroad Group, which was the parent company of Westrail Freight Employment, and the Australian Rail, Tram and Bus Industry Union over a period of time from 22 December 2000 until a date in February 2001.
PN172
The correspondence - perhaps if I can put it up this way? I myself was the author of much of the correspondence from either Australian Railroad Group or Westrail Freight Employment and Mr Wells or Mr Curran or the acting branch secretary of the union was the author of most of the correspondence coming the other way from the union. In order to expedite matters, I would seek leave to simply present the documents from the bar table. If there is any question on any of the documents, I am quite prepared to have them sworn to.
PN173
THE SENIOR DEPUTY PRESIDENT: They are probably admissible as business records anyway, Mr Johnston.
PN174
MR JOHNSTON: Thank you. Just so there is no confusion. Sorry. The first letter I would submit is a letter dated 22 December 2000 from myself as Corporate Employee Relations Manager of the Australian Railroad Group and also of Westrail Freight Employment Pty Limited concerning discussions that were held between the Australian Rail, Tram and Bus Industry Union, Westrail Freight Employment Pty Limited and a representative from Australia Western Railroad, which is the operating company which actually operates rail services in Western Australia. It is a subsidiary company of the Australian Railroad Group. It can be seen from the first paragraph of that letter - - -
PN175
THE SENIOR DEPUTY PRESIDENT: We will just mark it first, Mr Johnston.
PN176
PN177
MR JOHNSTON: That letter confirmed the outcome of discussions between the parties about the work performance of locomotive crews working service for Australia Western Railroad. And in the second paragraph we would see, the letter says:
PN178
It is agreed that from today, December 22 2000, locomotive crews employed under the Westrail Freight Employment Pty Limited, ARTBIU, AMWU, CEPU Certified Agreement 2000, will undertake the full work requirements outlined in the notice from AWUR.
PN179
And there was a copy attached. It then goes on to outline a process whereby the ARTBIU and WFE would seek to agree on an interim rate of pay to apply to employees covered by the agreement in carrying out those work requirements. It states that the interim rate would apply from 22 December 2000 and that when no agreement was reached, the WFE would pay the employees at the rate of pay in the certified agreement plus 3 per cent for the period during which those duties were carried out. It also goes on to say that the performance of the work requirements will enable the employees to share in a greater range of work and that it was not the intention of Australian Western Railroad to roster employees to carry out duties such as car driving, or shunting, for an entire shift and the agreement was without prejudice to either the position of the RTBIU or WFE in any other discussions or negotiations over conditions of employment for locomotive crews.
PN180
Attached to the letter was a notice to locomotive crews with the Australia Western logo at the top of it, purportedly coming from the General Manager of Australian Western Railroad, a Mr Goodall and dated December 21, 2000 and within that notice we see that Australian Western Railroad had a requirement for locomotive crews to carry out all work required for the safe, efficient and economical operation of trains and it goes on to say:
PN181
Such work includes, but is not limited to, driving road motor vehicles, piloting locomotives onto trains, shunting at attended or unattended locations, brake testing and train inspections, trip servicing of locomotives -
PN182
and there's a list of other things which were work Australian Western Railroad would require of WFE employees operating their trains and certainly by this letter, this letter signified agreement between the Union and WFE about those work requirements. That letter was sent following a meeting on 22 December 2000. On 28 December 2000 a copy of a memorandum from Australia Western Railroad to its local managers, called Rail Operations Coordinators and also a copy to some Regional Managers, the Manager of rail operations, was sent to the ARTBIU, I would tender a copy of the memorandum.
PN183
THE SENIOR DEPUTY PRESIDENT: What was the date again please Mr Johnston?
PN184
MR JOHNSTON: The memorandum was dated - well the memorandum on the face of the documents is dated December 28, 2000 and that is the date that the copy was sent to the ARTBIU. Attached at the back of the documents is actually the original of the memorandum which is dated December 22, the December 28 date arises through the computer generated dates which are effectively the date. However, the original memo was sent out by Australia Western Railroad on 22 December, following the meeting with the ARTBIU.
PN185
The copy was sent to the ARTBIU at round about quarter past 12 on the 28th, it was sent by myself to Mr Wells, because I had raised with Mr Wells the fact that the Union had not communicated to its members what the agreement was that had been reached by the parties on the 22nd. Mr Wells asked me if I could send a copy of the information that had been put out by Australia Western Railroad and I did that in the form that we have before us now.
PN186
MR JOHNSTON: It can be seen relevantly in the third paragraph of the memorandum which was signed by David Detez, the Workplace Relations Officer in Australia Western Railroad, that in the third paragraph it says:
PN187
In reaching the agreement the Union sought clarification that the list of duties did not mean that locomotive crew members would be specifically rostered to perform those tasks as a shift.
PN188
That is the tasks that were contained in the notice to locomotive crews of 21 December. The memo goes on to say:
PN189
That is full-time car driver, full-time shunter on ground, etcetera. An undertaking was given that this was not proposed and that the intention was that locomotive crews would perform these duties as part of their primary role of driving locomotives.
PN190
The ARTBIU was in possession of both of those documents by 28 December. On 29 December, the Rail, Tram and Bus Industry Union, through Mr Curran, wrote to myself again seeking a meeting to further discuss the issues, as had been undertaken at the meeting on 22 December and requesting certain work place representatives be released or be available to attend that meeting. That letter from the Rail, Tram and Bus Industry Union is dated 29 December.
EXHIBIT #J3 LETTER FROM RAIL, TRAM AND BUS INDUSTRY UNION, DATED 29.12.2000
PN191
MR JOHNSTON: So your Honour to save much of the to-ing and fro-ing I will just perhaps extract a number of documents which I will refer to and I will hand them up to you at one time. Your Honour, if I can refer first of all to the letter from Australian Railroad Group, dated 25 January, sorry I withdraw that. If I could refer first of all to the facsimile message from the Australian Railroad Group, dated 12 January 2001, which is to Mr Wells from myself and confirms the arrangement of a meeting between representatives of Westrail Freight Employment and the ARTBIU for the 17 January.
EXHIBIT #J4 FACSIMILE MESSAGE FROM AUSTRALIAN RAILROAD GROUP, DATED 12.01.2001
PN192
MR JOHNSTON: Thank you. That document confirms the arrangement of a meeting in response to the earlier correspondence from Mr Curran and confirms that Messrs Miller, Bullock and Seville would attend that meeting. That meeting was held on the 17 January and following that meeting a letter was sent from ARG to the Union on January 25 and if I could draw the Commission's attention to that letter, dated January 25, to Mr Wells.
PN193
MR JOHNSTON: It can be seen in the second paragraph of that document, the first, or the subheading is about driving of road motor vehicles. This was a matter which arose at the meeting of 17 January. The Commission will see that there is no reference in there to the actual nature of the driving work to be performed. The concern that was dealt with at the meeting - the issue that was dealt with and raised at the meeting was one about employees who did not have driver's licences and who would be required to drive a motor vehicle, where arrangements would be made for them and what would the employer's position be in respect of applications for extraordinary licences, where employees lost their licence, say through drink driving, or for other reasons, for accumulating too many demerit points or whatever and there is no reference there to any other restrictions on the driving of road motor vehicles, other than what had previously been agreed.
PN194
In response to that letter we see a - this is a facsimile of a letter, which is undated, but the facsimile is dated 31 January, 2001, it's a letter signed by R. Christison, the Acting Branch Secretary of the ARTBIU, WA Branch and is addressed again to myself as a Corporate Employer Relations Manager of the Australian Railroad Group.
EXHIBIT #J6 FACSIMILE OF UNDATED LETTER SIGNED BY R. CHRISTISON
PN195
MR JOHNSTON: Thank you. The letter, in essence, complains that the 3 per cent pay rise is not seen by the Union as being adequate for the work that locomotive crews are doing, but the Union allows the arrangement to continue for a further month, conditional on continuing discussions as outlined in the previous letter, mentioned at exhibit J5, the letter of 25 January. Again, there is a request for certain work place representatives to attend the discussions.
PN196
The final document of four that were handed up together, is a letter of 28 February, again from myself. This is addressed to Mr Christison, who was the Acting Branch Secretary of the ARTBIU and it deals with some of the issues raised at the meeting at Forrestfield on February 13, 2001.
EXHIBIT #J7 LETTER FROM MR JOHNSTON TO MR CHRISTISON, DATED 28.02.2001
PN197
MR JOHNSTON: Thank you. The letter outlines broadly a proposal for how the parties might be able to negotiate and introduce a Certified Agreement, which would deal with changes to conditions for locomotive crews, who were covered at the time by the Certified Agreement, to which the ARTBIU and another two Unions were a party and it goes through a number of steps that are suggested by Westrail Freight Employment Proprietary Limited, for achieving an agreement which would enable the rostering of locomotive crews covered by its Certified Agreement for the type of shift lengths that were available to crews covered by Australian Workplace Agreements.
PN198
The Award and Certified Agreement limited rostering to 8-and-a-half hours maximum. Australian Western Railroad wanted to be able to roster crews for up to 12 hours and some crews they were able to do that with under other agreements with Westrail Freight Employment Proprietary Limited and also crews that were made available through skilled rail services, another supplier of labour to Australian Western Railroad and also they were able to roster crews which were provided by Australian Southern Railroad, a sister company in South Australia for shifts for up to 12 hours.
PN199
On the second page, in fact on the last paragraph of - or second last paragraph of the letter, it said that:
PN200
It should be possible the parties agree to progress these discussions in parallel with negotiations between WRE and the relevant Unions for a new Award and Certified Agreements.
PN201
And there was some reference made by Mr Wells to these negotiations in these proceedings this morning. The Certified Agreement with the RTBIU and the other two Unions does have within it provision that Westrail Freight Employment will hold discussions with the Union parties within two months of the coming into effect of that Agreement, about a new Award and Certified Agreement to cover employees of Westrail Freight Employment. Those discussions had commenced and were taking place and those are the negotiations referred to that could go on in parallel any expedited discussions or negotiations in relation to locomotive crew.
PN202
As you see in the last paragraph the Union was invited to respond to the proposal by Westrail Freight Employment and contacted myself so that a meeting could be arranged to progress discussions on that proposal. Now, I am not able to put into evidence any response because there was no response received and that is where the matter really rested and continues to rest, although discussion was taking place as Mr Wells alluded to in relation to an Award and Certified Agreements generally covering staff of WFE there was no particular fast track to expedited negotiations taking place in respect of the matters that are outlined in these documents.
PN203
That evidence goes to an agreement by or on behalf of employees to work in certain ways. I would now seek to put up some evidence in relation to the practice of operating in the manner complained of by the Union, that is of having drivers use two cars to relieve train crews rather than going in the one car. We have been able to, in the time available to us, to extract some details from train schedules put together by the logistics planners of Australian Western Railroad and we would say that the planning of train operations is not performed by Westrail Freight Employment it is actually a function of Australian Western Railroad, who run the trains, but I think perhaps the best way to get this these notices into evidence would be to put them through a witness who was actually responsible for their extraction so I would call Mr David Detez.
PN204
PN205
THE SENIOR DEPUTY PRESIDENT: And you spell your surname D-e-t-e-z, is that correct Mr Detez?
PN206
THE WITNESS: That's correct, your Honour, yes.
PN207
THE SENIOR DEPUTY PRESIDENT: Thank you. Yes Mr Johnston?
PN208
MR JOHNSTON: Yes, thank you your Honour. Sorry, your Honour, I am just trying to get around a logistical problem, it would appear that I am one copy short on each of these but I will overcome it. Sorry, for the delay, your Honour, I have finally managed to sort these out, perhaps if I could pass these documents to the witness for identification? Thank you.
PN209
Thank you, Mr Detez, could you look at the bundle of documents and tell the Commission if you have seen these before?---Yes, I have.
PN210
Yes. Could you generally describe the documents for the Commission?---They are called: Special Train Notices, which are notices that go out to depots from our logistical planners to outlying train working and associated crewing and other working notes required for those particular operations.
PN211
Mr Detez, if I could just take you to the first page - the second page of the first document which is one that has at the top of it: Effective dates, 21.12.2000 to 23.12.2000?---Yes.
PN212
At the bottom of the second page there's points numbered 1 through to 5. Could you read what it says opposite point 4, please?---Point 4 says:
PN213
Crew on duty at 1330 hours Thursday. Take two vehicles to Pingaring one vehicle returned with crew loading under power at Pingaring, second vehicle to return with 0900 hours crew ex-Pingaring.
PN214
Now, Mr Detez, what is your understanding of how that instruction would operate in practice?---This is for the depot Wagin, a crew would come on duty at Wagin at 1330 hours and take a vehicle each through to Pingaring. They would leave one vehicle - one vehicle would be used for crew return, they would also then use that second vehicle to return later on after I am assuming doing some loading under power at that - well, shouldn't say "assume" it is clear there, "loading under power" at that depot.
PN215
What is the date on which this was to happen, Mr Detez?---That would have been Thursday, 21 December.
PN216
If I could just skip one document and take you to a document, effective dates: 14.02.2001 to 14.02.2001? Do you have that document?---Yes.
PN217
Again if I can take you to the second page under the subheading: ROC Wagin, provide vehicles for - there again are five points. Could you read out point 5 there please?---
PN218
Crew on duty 0700 hours Saturday. Take two vehicles Wagin to Tambellup, one vehicle return with crew X number 7693, driving self Tambellup to Wagin. Second vehicle to remain at Tambellup and return with same crew working number 7692 Gnowangerup to Tambellup.
PN219
Mr Detez, in your view does that describe a similar type of work arrangement to that in the previous Train Notice?---Similarly, yes.
PN220
Yes. Mr Detez, where did these Train Notices come from, how did you get hold of them?---I approached our two logistical planners this morning and asked for them to extract from the - they have a system which issues the special Train Notices, it's essentially like an e-mail system, to extract historical special Train Notices which had crew working involving the use of a crew driving two vehicles and they extracted these as examples of that type of operation.
PN221
Yes. Thank you. Could I take you to another document? It's quite a bit down, it's Train Notice 40174 with the effective date, 15 April 2001?---Sorry, what was the Train Notice?
PN222
41074?---Yes.
PN223
Effective date 15 April?---Yes.
PN224
Again on this example it's numbered page 29, it's actually the third page of the document that you have, again under: Car Working on that page:
PN225
ROC Wagin. Please provide vehicle for -
PN226
And there's 10 points, could you read point 10, please?---
PN227
Crew on duty 1400 hours Saturday, utilised two vehicles, parking one vehicle at Katanning for return by same crew. Second vehicle to Badgebup for return by crew X number 7682 driving self to Wagin.
PN228
Mr Detez, you have heard and I think you were aware of the particular working on 9 June, I think it was, that is complained of by the union. In your view, does the working outlined on this Train Notice of 15 April bear any resemblance to the type of working of 9 June?---It does, it's almost identical except that Badgebup is one location closer to Katanning than Nyabing which was the location referred to on 9 June.
PN229
Thank you, and what is the date of this particular train working?---It would be Saturday, 21 April.
PN230
Thank you. Mr Detez, I don't want to take up the Commission's time and everyone else's time unnecessarily, you personally have seen all of these train notices that you have there?---Yes, I have.
PN231
Do they all contain the same type of working that is a crew required to drive two cars, that is one member of the crew drive each car or have at some point a single crew member drive a car?---Yes. They do.
PN232
So they all contain similar types of working, thank you. If Mr Detez could hand those up to the Commission, please.
PN233
THE SENIOR DEPUTY PRESIDENT: Is it convenient to mark them as a bundle, Mr Johnston.
PN234
PN235
MR JOHNSTON: Have you a copy of an e-mail message addressed to Dave Detez from a Glen Justin, so could the witness be given that document, please? Mr Detez, are you familiar with the documents you have there?---Yes, this is an e-mail message sent to me by Glen Justin, the Acting Rail Operations Coordinator at West Merredin, in response to a question I put to him early this afternoon. The question I put was if he could recall examples for either Merredin or if he could ascertain examples for either Merredin or Wagin, Wagin because he's the - well, he's the appointed Rail Operations Coordinator at Wagin also, where locomotive crew have been used in motor vehicles for - other than the standard crew change type method and these were the examples that he highlighted that he could readily ascertain.
PN236
And what do those examples tell us, Mr Detez? For example, on 5 March 2001 what is the situation described there?---This is a situation where a grain train - where some altered working was required as a result of someone booking off sick at Avon Yard where the train was driven by - well, was meant to be driven by two locomotive operators employed under Australian Workplace Agreements. The circumstances were that one of the Australian Workplace Agreement employees booked off sick and they then utilised an Avon driver from the shed who was employed under a certified agreement to work that train from Avon to West Merredin and then drive a vehicle by himself back to Avon Yard and for the return journey for a West Merredin driver who is employed under a certified agreement to drive the train on the return journey from Merredin to Avon and then to drive himself back from Avon Yard to Merredin. The - - -
PN237
Sorry, continue with the 8 May scenario, please?---8 May example was where a standard gauge grain train was worked from Merredin to Avon Yard and for the purpose of repositioning motor vehicles both those certified agreement employees drove a vehicle each back to Merredin rather than going back in one vehicle. And that's a balancing exercise to get vehicles back in the right locations.
PN238
And on 9 May, Mr Detez?---9 May was also a similar example to the 5 March example where there was a crew rostered, an Australian Workplace Agreement crew rostered to work a train but because one of the Australian Workplace Agreement employees booked off sick, two certified agreement employees were utilised, one went out with the train but needed to be relieved because of the shift length restrictions and the relief came from another certified agreement employee from Wagin who drove out by themselves to Nyabing and relieved the other certified agreement employee who drove himself back from Nyabing to Wagin by car.
PN239
Thank you. Could the witness be shown this?
PN240
THE SENIOR DEPUTY PRESIDENT: Do you wish to tender that document?
PN241
PN242
MR JOHNSTON: I am sorry, your Honour, I don't actually have copies of these documents that I have given to the witness. I will endeavour to have copies made. I can certainly show them to my friend and leave them with the Commission. Mr Detez, have you seen those two documents before?---Yes, I have.
PN243
Could you describe to the Commission what they are, please?---These are the time sheets for employees, Stone and Fleay, for the week ending 9 June and I obtained these from the Payrolls Officer yesterday to ascertain how both of those employees were paid in relation to the matter on - or the incident that has been referred to on 9 June.
PN244
Yes. Mr Stone and Mr Fleay were the locomotive drivers rostered to work the service which involved driving the two cars?---That's correct, yes.
PN245
Yes. Now, if you look at the time sheets for Mr Fleay, what does it show for Saturday, 9 June?---Saturday, 9 June shows that he was paid 2 hours - not required.
PN246
Yes, and is there any payment shown for that day?---No.
PN247
Now, on the part of the time sheet below Saturday, 9 June, can you ascertain from that how Mr Fleay was paid for the fortnight's work on the time sheet?---Well, this particular week, the week was paid effectively with 34 hours working time if you count the 2 hours not required with a further 6 hours of time added for the guaranteed week to give a total of 40 hours and there is an adjustment for the credit time which makes it 38 hours.
PN248
But effectively Mr Fleay I think you are saying, did not lose any money for that week, he was paid for 40 hours?---He was, yes.
PN249
Yes, okay. If you could look at the time sheet for Mr Stone, what does that show for Saturday, 9 June?---Leave without pay for 8 hours.
PN250
Thank you?---Which was the shift that was meant to be worked, 1500 through to 2300.
PN251
Yes. And what does the time sheet show for him payments for the week. How many hours was Mr Stone paid for for the week?---It was actually 46 hours but that was because of some other work in relation to public holiday payments.
PN252
Yes. Was there any make-up time?---There was no make-up time in relation to the time lost on the Saturday, no.
PN253
And it may be somewhat speculative, if Mr Stone had worked the shift on the Saturday would he have been paid 46 hours plus a further 8 hours?---Yes.
PN254
Yes. So we can surmise that Mr Stone lost 8 hours pay on that Saturday?---That's correct, yes.
PN255
Thank you, Mr Detez. Perhaps if I can have those documents back to show to my friend and then I can - - -
PN256
THE SENIOR DEPUTY PRESIDENT: Yes, well we will have them copied before Mr Wells is required to cross-examine, Mr Johnston.
PN257
MR JOHNSTON: All right, thank you, your Honour.
PN258
THE SENIOR DEPUTY PRESIDENT: Now, do you want them marked?
PN259
MR JOHNSTON: Yes, I would like them marked, thank you.
PN260
THE SENIOR DEPUTY PRESIDENT: We will mark them as a bundle, they will be time sheets for Mr Fleay and Mr Stone and they will be marked T10.
PN261
MR JOHNSTON: Was that J10?
PN262
PN263
THE SENIOR DEPUTY PRESIDENT: We will have copies made before you are required to cross-examine, Mr Wells?
PN264
MR JOHNSTON: Mr Detez, if I can take you back now to 22 December 2001, were you present at a meeting between Westrail Freight Employment and the ARTBIEU in relation to the work of locomotive crew?---Yes, I was.
PN265
Yes. If I could show the witness exhibit - and I seem to have mislaid my copy of it, I think it is exhibit J2, it is a copy of a memorandum which was forwarded to the - it may be J2.
PN266
THE SENIOR DEPUTY PRESIDENT: J2 is the memorandum dated 28 December, is that right?
PN267
MR JOHNSTON: That's it, thank you, your Honour, yes.
PN268
Exhibit J2, Mr Detez, you have there a copy of a memorandum dated 22 December which forms the third folio in exhibit J2, do you recognise that as a memorandum written by yourself?---Yes, it is.
PN269
That memorandum talks about what was agreed between the RTEBU and Westrail Freight Employment at the meeting of 22 December. Does the memorandum reflect your understanding of the outcome of 22 December, yes, it does.
PN270
Okay. Thank you, I have got no further questions at this stage.
PN271
THE SENIOR DEPUTY PRESIDENT: Thank you. Well, we will stand the matter down for 5 minutes while we make copies of the documents that Mr Wells doesn't have and then we will resume with your cross-examination, Mr Detez, and I caution you not to discuss your evidence until your cross-examination is completed?---Yes, your Honour.
PN272
Thank you.
SHORT ADJOURNMENT [5.23pm]
RESUMED [5.27pm]
PN273
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Wells?
PN274
PN275
MR WELLS: Mr Detez, who are you employed by?---Westrail Freight Employment Pty Limited.
PN276
Are they the same people as Australian Western Railroad?---No, they are not.
PN277
What capacity are you employed by Western Freight Employment?---I am employed as a workplace relations officer.
PN278
The people who are the logistics coordinators, who are they employed by?---They are also employed by Westrail Freight Employment.
PN279
So they are not employed by Australian Western Railroad? Is that correct?---They are not employed by them, by Australian Western Railroad, but they perform the service for them, similar to the locomotive drivers that we have been speaking of.
PN280
So when you spoke about the works orders for trains, whose instructions were they to whom?---They were instructions from Australian Western Railroad.
PN281
To whom?---To managers and train crews in relation to the working at Wagin or whatever depot they apply to.
PN282
Does Australian Western Railroad have an employer/employee relationship with WFE employees?---No, they don't.
PN283
They don't?---No.
PN284
Who do WFE employees have an employment relationship with?---Sorry, can I have the question again?
PN285
Who do WFE employees have an employer/employee relationship with?---With WFE.
PN286
Exclusively?---Yes.
PN287
And you are aware of the terms of that?---Yes, I am.
PN288
Can you tell me the difference between an AWA driver and his working conditions and those employed under the award by WFE? I assume WFE employs both of them?---That's correct, yes.
PN289
Are the terms of employment decidedly different?---They are different in some respects in terms of things like maximum shift length, the way in which they are paid. Some allowances are aggregated in the Australian workplace agreements, some are not under the certified agreement.
PN290
What's the rate of pay for a 40-hour week for an AWA driver?
PN291
THE SENIOR DEPUTY PRESIDENT: Mr Wells, I am not sure about this. There are some secrecy provisions in the Act. I am not sure whether they are applicable, but I just want to check before the witness answers that question?---I couldn't safely quote the rate of pay, the weekly rate of pay - - -
PN292
Don't answer any further, please, Mr Detez, until we have looked at the provision in the Act. Well, I suppose the question is whether you are an entrusted person under 170WBH, Mr Detez. I don't suppose the answer will identify any person, so you can ask the question, Mr Wells.
PN293
MR WELLS: Thank you. Do you know what the difference in rate of pay of the two grades are?---Not exactly but the weekly rate for an AWA would be about 840 a week. And for certified agreement employee under the award conditions, I think it's 580 something, 590 something for an engine driver. That's level 5 of locomotive operator versus a thereafter engine driver.
PN294
For the purpose of the exercise, those figures are close enough. Do you agree with me that a person working under an AWA is working on basically the old AG21 conditions?---Very similar.
PN295
I put it to you that all locomotive drivers were working under those conditions for a period of time?---Under the AG21 conditions?
PN296
Yes?---Yes, they were.
PN297
From your knowledge, did it come to pass that drivers then were employed under different conditions and what were the circumstances that saw them employed under different conditions?---The union at the time, State Union, sought to withdraw from a section 41 agreement, which is AG21, which resulted in some employees reverting back to the conditions of the prevailing award.
PN298
Did that mean that they had a lesser range of duties to perform than they previously did under AG21?---That's not my personal view, no. I didn't believe that the award actually prescribed the duties.
PN299
Given that there was approximately $240 a week difference in rate of pay, I put it to you that it was a decidedly different range of duties and different range of expectations for employees employed under an AWA compared to those who followed by the award conditions? In fact, that's what the employer was paying for, wasn't it?---To some extent. There was also a wrapping up of a number of allowances that were provided for in the award and there were other issues such as I indicated earlier, a longer shift, maximum shift length provided for and also the ability for the work to be arranged over a longer period of time. The award provided for work to be arranged over a week whereas under an Australian workplace agreement, the work could be arranged over a fortnight or a 4-week period which provided additional flexibility.
PN300
But there was a lack of flexibility under the award conditions that the employer formerly enjoyed under AG21, is that correct?---Sorry, can you state the question again?
PN301
Your point is that there was a lack of flexibility when some workers returned to the award, that the employer had under AG21?---Compared to what they had under AG21?
PN302
Yes?---That would be correct.
PN303
Now, to take you then to this issue of when the sale of Westrail went through. You were conversant with those documents and practices, I assume?---Yes, I am.
PN304
Workers under the AWAs receive a far higher rate of pay for the 40 hours a week than the workers under the award. That's true, isn't it?---Base rate of pay difference, yes, that's correct.
PN305
Yes. And in terms of that, the difference is - if I told you that the hourly rate for an AWA is $21.05 compared to the award's $16.03, do those figures sound about right to you?---Yes, they do.
PN306
In terms of the restrictions that apply to award drivers that did not apply to AWAs, they were quite clear in the lead up to the sale of Westrail and they were quite clear immediately after, weren't they?---I think it was clear that there were restrictions there, yes.
PN307
Do you remember the meeting of 22 December well?---Fairly well, yes.
PN308
Do you remember what caused it? What brought about that meeting on the last working day before Christmas in the year 2000?---I believe it was the issue of the notice that was earlier referred to, issued by John Goodall to all locomotive crew in relation to the range of duties that were expected of all locomotive crew.
PN309
There wasn't agreement about that with the union prior to Mr Goodall's letter going out, was there?---No. Not that I am aware of, no.
PN310
No. In fact, there was a dispute, wasn't there? There was a dispute with the union about its members on the award. It had an entirely different view of life to the new employer, who was only then 4 days or 5 days old.
PN311
MR JOHNSTON: Your Honour, I don't know that Mr Detez can answer questions about the views of employees, the views on life of employees covered by the award, sir. I don't think that's something that's necessarily within his range of knowledge.
PN312
THE SENIOR DEPUTY PRESIDENT: Yes. You might like to rephrase that question, Mr Wells.
PN313
MR WELLS: Mr Detez, from your extensive travels around to the various depots with the employer, had it been put to you that award drivers were reluctant to perform certain tasks that AWA drivers perform willingly?---There was some evidence of that, yes.
PN314
Did that evidence go to the cleaning of toilets on units?---At some locations it did, yes.
PN315
I put it to you there was a majority of locations that that was a problem at that time?---Honestly, it's not something that I could quantify in terms of whether it was an overwhelming majority. There was certainly some evidence of a reluctance across the depots.
PN316
I put it to you that locomotive enginemen at various depots were threatened with being stood down over Christmas if they refused to clean toilets. Is that true?---I don't have a recollection of that.
PN317
Do you recall any industrial threats precipitated in that meeting of the 22nd following Mr Goodall's letter that was sent out?---I can only recall of a couple of incidents, I think at Merredin relating to the piloting of locomotives and perhaps some shunting, but I don't recall any - anything in relation to the servicing of toilets.
PN318
You can't recall any problems that you knew about at Avon in terms of the servicing toilet crews?---I can recall some long-standing issues at Avon in relation to toilets.
PN319
And then continued on with people who were in the award, didn't it?---I honestly can't recall. It's - I cannot recall specific events leading up to 22 December in relation to the cleaning of toilets.
PN320
The question of people who were on the award being restricted to shed duties Monday to Friday, do you recall that occurring at various depots?---I recall the issues, the matters being raised about certified agreement people working Monday to Friday in the shed, yes.
PN321
Do you recall that being a considerable concern as expressed by the union at that time?---It was.
PN322
Do you recall the question of driving motor vehicles being spoken of, and cleaning motor vehicles?---Are we talking about at our 22 December meeting, are you?
PN323
Yes. We are talking about that meeting?---Yes, I do.
PN324
Do you recall the discussions at that time being restricted to those vehicles that those people would drive for the purpose of changing over crews on the site, their own services? Do you remember that discussion?---That's not the way I recall it. I don't believe it was that specific in relation to motor vehicles.
PN325
I put it to you that it was. You don't recall? Do you recall the discussions about them not wanting to clean every motor car in the depot?---Yes, I do.
PN326
Do you recall that discussion being to clean the motor vehicle that they were to drive?---I do - I do recall conversations relating to some of those tasks and the discussions centred around whether or not employees would be asked to perform those tasks for full shifts and I believe the memo that I issued on 22 December communicated that, inasmuch as it was not the intent to use them for full shifts for these tasks, but to use them or require them to perform them in conjunction with their other - other driving duties.
PN327
The driving duties you talk to is loco driving duties, isn't it?---Yes.
PN328
Now, the purpose of driving the motor vehicles was to go out to the changeover place and relieve a crew, whether they were AWA or they were award drivers. I put it to you, that was the point of driving the motor vehicle and that was a point that the employer said: well, you can't get out of the shed 9 to 5 unless you agree to do that. I put it to you that that was the tenor of the discussion on 22 December. Was that true?---That was certainly the principle purpose for the driving of the motor vehicles. I don't believe that there were other restrictions placed on the driving of motor vehicles discussed at that meeting.
PN329
The ferrying of motor vehicles between point A and point B was never discussed, was it?---No, it was not.
PN330
No, it wasn't. And that in fact was what was asked for on 8 June, wasn't it?---Just it depends what ferrying of vehicles means.
PN331
Well, they weren't driving the second vehicle for the purpose of the service that they were to operate, they were driving it to ferry it from point A to point B to be used for some other purpose or some other reason. It was not to convey them to and from the locomotive service that they were to operate on that day?---Well, actually, that's not correct. The vehicle that was driven and left at Katanning was later used by that same - was intended to be used by that same crew to get from Katanning back to Wagin, because the train that they were loading at Nyabing was to be stabled at Katanning. So the vehicle that was left at Katanning was actually left for them, for that very crew to be returned from Katanning to Wagin. The vehicle that they took on to Nyabing was used to enable the crew who were loading the train at Nyabing to return to Wagin.
PN332
But nonetheless, the idea of running two cars out there, again to drive two cars for that purpose was not discussed on 22 December?---I agree it was not discussed.
PN333
No. I put it to you that then it couldn't have been contended to be within the terms of that agreement?---I would disagree with that, inasmuch as the discussions also centred on the work performed by, or an understanding that the work to be performed would be essentially the same work performed by AWA people other than the restrictions that those relevant agreements placed upon them, such as shift lengths. Now, I do distinctly recall that being part of the discussions on that day.
PN334
Shift lengths were one subject. Cleaning the toilets was another and other duties - there were a host of things discussed?---Yes, there were.
PN335
But still there's this massive difference between the two, between an AWA and an award rate, isn't there? Was then, still is?---There is a difference, yes.
PN336
Yes and it's not insignificant, it's around 25 per cent, isn't it?---That might be correct, but as I said a lot of that can be demonstrated by the way that the two different agreements require payment of allowances, versus the other one being an aggregated type of - type of wage.
PN337
Now we get to the document in terms of rostering. The large bundle of documents that you read from that went through the different points?---Yes.
PN338
THE SENIOR DEPUTY PRESIDENT: That's J8 is it Mr Wells?
PN339
MR WELLS: Right, thank you.
PN340
In terms of J8, can you identify from J8 which are Award drivers and which are AWA drivers?---No, I can't.
PN341
So, from those examples you gave us, bearing in mind that the large majority of drivers are AWA at present, that could have all been knit for AWA drivers or would the person rostering have known that they are Award or AWA?---I believe, in most cases, the Logistics Planner, who schedules the work, would have not have concerned himself with the agreement to be covered, well who was going to do the work and what agreement they might be covered by. In some cases it will be patently obvious because the shift length could be 9, or 10, or 12 hours. But in other cases the shift lengths would be 8 hours and when that work was put to the rostering personnel they would best utilise the people at their disposal and in some cases, they would be Award or Certified Agreement employees.
PN342
So the rostering people, draw up the rosters for AWR?---That's correct, yes.
PN343
AWA don't employ WFE employees?---That's correct.
PN344
So how would they know which ones are which?---Because of the way their rostering system is created they have records within the system to show which are AWA and which are Certified Agreement, they need to do that for the purposes of compiling the rosters.
PN345
They have records to show that?---Yes they do, they sit on one roster or on another roster, so it's clear that those employees are either AWA or Certified Agreement employees. Clearly to avoid rostering a Certified Agreement person for 12 hours, for example, in error, they need to be distinguished.
PN346
Is that view different to the view that WFE have been expressing in their negotiations in respect of a new Award?
PN347
MR JOHNSTON: Your Honour that question is so vague it can't be answered, what view is Mr Wells talking about?
PN348
MR WELLS: The view I am putting is that WFE, for its part, claims that it does not control AWRs rosters that they need maximum flexibility because they don't have control or knowledge of the rostering and the Award conditions, or the other conditions that they need this massive flexibility, that's what the employers been on right from the start about. So you say that's not true?---No.
PN349
Well if it's not true, it's not true, I accept that point?---That's not my answer at all. I don't understand that to be the case at all.
PN350
Well what do you understand to be the case?
PN351
MR JOHNSTON: Your Honour, the questions here are totally irrelevant, your Honour to the matter at hand, which is whether or not the action required by WFE of its employees in driving the car is in contrary to the terms of the Certified Agreement and constitutes industrial action. What the position of WFE might be in relation to negotiations on a new Award or Certified Agreement and what flexibilities might be required by other companies who make use of employees of WFE hardly seems relevant and if that is the view that has been expressed by WFE perhaps Mr Wells could present some evidence that that view has been expressed by WFE, not merely assert it from the bar table and expect the witness to say whether or it's right or wrong.
PN352
THE SENIOR DEPUTY PRESIDENT: Mr Wells I am not sure where this is taking us, but in any event I think the question was too long to comprehend, so perhaps you might ask it again.
PN353
MR WELLS: I will try to shorten it.
PN354
Is it not so that the position of WFE, in terms of its requirement for its drivers, is to assert that it requires maximum flexibility without restrictions and operate a seven day a week, 24 hour a day, operation. Is that not WFEs position?---Yes, that would be correct.
PN355
And it asserts this on the basis that it does not plan the work? It does not plan AWRs work, AWR plan the work and WFE merely provides labour for AWR, is that correct?---That is correct.
PN356
So we get down to you agree with me that it was the case that this driving two cars was never the subject of agreement between the parties?---No, I said it was not specifically referred to, that particular type of operation was not specifically referred to at the meeting.
PN357
Right, we will then go the question of what occurred from the examples that you have I noted in J9, obtained from Mr Justins, was Mr Justins at Wagin in June 8 or 9?---I believe he was there on June 9.
PN358
Right?---I couldn't answer about June 8.
PN359
Mr Justins was then employed by whom?---He was employed by WFE.
PN360
It says here, Australian Western Railroad?---He's employed by WFE but provides service to Australia Western Railroad in the capacity of the Rail Operations Coordinator.
PN361
Right. If we just take the examples you gave here:
PN362
Avon yard, AWA driver booked off sick at Avon, having utilised shared driver to work 055 Avon to West Merredin and then drive by self from Merredin to Avon.
PN363
What is unique in that?---I don't believe there's anything unique in it.
PN364
West Merredin utilised J. Gilmore, on at 7.30 to 1530 to work 056 West Merredin to Avon and then drove himself home.
PN365
That's not inconsistent with the agreement either is it?---I would say, no it's not.
PN366
No.
PN367
Mr Carroll and Christison were on duty, they worked 058 West Merredin to Avon by road, to Merredin in two cars, Merredin car had been left at Avon from the previous working.
PN368
They were still only providing service to their train weren't they? All of those three examples, the 5 March, provide people only servicing their own train, isn't that true?---Sorry on the 5 March?
PN369
Yes, all of those examples there contain people merely driving to the crossover point, or return, servicing their own service in the case of Mr Malcock, he was driving arising out of the service where he was driving 055. In the case of Mr Gilmore he's driving 056, he's driving the vehicle co-joiner in connection with the direct service he operated as a loco driver, he was not performing a faring service at all, was he?---No, in those cases I think the reason why that example was given was because the drivers were required to drive the car by themselves, rather than have a co-worker in the car with them.
PN370
Whether one driver or two is in the car, is not the question, as I see it. The question differentiates the Wagin working was that they were required to ferry or drive another car connected to another service for that same operation, that's the point, can you see the difference?---As I indicated earlier it was actually for the same service, but they did drive two separate vehicles, yes, well I should say the requirement was for them to drive two separate vehicles.
PN371
No, the point I am trying to make Mr Detez is that the agreement went to car drivers driving the vehicle for the crossover for the service that they were either going to drive, or vice versa and there's nothing unusual in these first arrangements you have given in J9 that go to that point is there?---I certainly don't believe any of the requirements indicated on that e-mail were inconsistent with the agreement that was reached.
PN372
THE SENIOR DEPUTY PRESIDENT: Yes, but that wasn't the question, I do think we will get through this quicker if you just try and answer the question and not guess what the answer might mean.
PN373
THE WITNESS: Sorry your Honour, I thought I was answering the question.
PN374
THE SENIOR DEPUTY PRESIDENT: No you weren't, Mr Wells ask the question again.
PN375
MR WELLS: All right, I will try and rephrase.
PN376
The point I am making is that the service that these people are driving the vehicle to or from is the direct service they are operating, they are not servicing any other service within that operation, it is uniquely different to what happened in June 8 and 9?
PN377
THE SENIOR DEPUTY PRESIDENT: Mr Wells it was the first part of that question you asked before, that's why I spoke to the witness because the question was not whether there was compliance with the Certified Agreement, the question was simply did the first two of the incidents on the 5 March, simply involve a driver, driving a motor vehicle in connection with his or her own service?
PN378
THE WITNESS: Yes, they did.
PN379
MR WELLS: All right.
PN380
THE SENIOR DEPUTY PRESIDENT: Now we can go on. That was the question you asked.
PN381
MR WELLS: That's correct.
PN382
Again on 8 May, Carroll and Christison were driving vehicles only related to their own service, is that correct?---Well the ordinary working in that particular case would not have been to take a second car, but apart from that the two vehicles didn't relate to any other services.
PN383
Thank you. In respect to May 9, in what way is that different, or is it the same as the other two?---I think as I indicated earlier, the May 9 example is not dissimilar to the March 5 example. The driving of the car by themselves for the purposes of facilitating relief at Nyabing as it was in this case, in relation to that particular service, 683.
PN384
THE SENIOR DEPUTY PRESIDENT: So, just let me understand what the first one under the May 9 was. Was there in fact a AWA driver dropped at Katanning? Or did they both go to Katanning to work a train?
PN385
THE WITNESS: Because of the shift length issue an AWA employee can work 12 hours, so in this case because that AWAs co-worker booked off sick, to cover that work for the day it was necessary to book up two Certified Agreement - - -
PN386
THE SENIOR DEPUTY PRESIDENT: Two CA drivers, yes I follow that much, I am just trying to work out where they went and where they stopped?---The train was worked from Katanning to Nyabing.
PN387
I see, yes?---And then it would have commenced loading at that location. The second Certified Agreement employee would have drove - - -
PN388
Then drove himself to Nyabing and then??---And relieved the first Certified Agreement employee, who would have driven back to Wagin.
PN389
Wagin. Yes.
PN390
MR WELLS: Again they were servicing only their own train, weren't they?---Yes, they were.
PN391
What they were asked to do then, which was not agreed to on June 8 and 9, was to do something different, wasn't it? It was decidedly different I put it to you, it was not driving that car to specifically perform that service on their train, it was in fact to service another train?---I think I answered this earlier, it was the same train.
PN392
The move to change over crews, if it had have been a simple changeover you took one crew, drove by car from Wagin to the agreed point and you changed crews simply over and they drove back, there would be no objection, could be no objection of that, could there?---I would expect not, no.
PN393
Right, but the second circumstance where you actually took two cars out for the purpose was again different, it was more flexible than you had ever done with them before, isn't it? You knew it was a different arrangement didn't you?---Certainly not different on June 9 because it was a practice that had been employed on many other occasions, certainly scheduled to occur on many other occasions, as indicated by those special train notices.
PN394
But those special train orders don't say whether it's an AWA driver, or whether it was a Certified Agreement driver, do they?---No, they don't.
PN395
And you haven't evidenced that, have you?---I can't tell you from the special train notices who actually did the - who finally did the work, no.
PN396
So you can't tell me that what had happened on June - what was endeavoured to happen on June 8 or 9 had ever been done by Westrail before? You haven't lead any evidence to say that it has, have you?---No, I haven't.
PN397
And you don't have any do you?
PN398
THE SENIOR DEPUTY PRESIDENT: Well that question is unfair I think. It may have been done, it has not been done with CA drivers, that's what you are trying to put, isn't it?
PN399
MR WELLS: That's what I am trying to get to, my interest is in Certified Agreement drivers.
PN400
THE SENIOR DEPUTY PRESIDENT: But you didn't ask it, you asked it more generally.
PN401
MR WELLS: Well I will ask that then.
PN402
Do you have any evidence it was ever done by Certified Agreement drivers, what was sought to be done on June 8 or 9?---I don't have specific evidence that I could bring to this proceeding, no.
PN403
No. So, if I put it to you that what was sought to be done there, using Certified Agreement drivers, was a change, it was designed to increase flexibility at Wagin, is that true?---Designed to increase flexibility, I don't believe that's particularly the case. It was a circumstance that arises because a train is being stabled at Wagin, sorry at Katanning, rather than working through to Wagin and there needed to be some working to facilitate that crew getting home to Wagin from where they stabled the train at Katanning.
PN404
It had not been done by Certified Agreement drivers at Wagin before to your knowledge, is that correct?---I am not aware of it being done at Wagin before, no, by Certified Agreement crews.
PN405
Does it follow that you are not aware of it being done by Certified Agreement crews anywhere in WA?---I am not aware of it specifically being done, no.
PN406
So I put it to you that it was a changed work practice instead of circumstances not agreed, would you agree with me?---Sorry, can I have the question again?
PN407
I put it to you that it was a changed set of circumstances that had not been specifically agreed to, would you agree with me?---I would agree that there wasn't any specific agreement with the Union about that particular type of operation, yes.
PN408
I now put it to you that the driver, or the people that were intended to do this, objected to it the day before and made their objections known?---I am not 100 per cent aware of that.
PN409
Have you seen exhibit W1?---No, I haven't.
PN410
Or W2 or 3?---No.
PN411
MR JOHNSTON: Perhaps if the witness were shown the witness would be able to say whether he had seen them or not?
PN412
THE SENIOR DEPUTY PRESIDENT: Well, he has asked the question, but if you want to push it further, Mr Wells, you should perhaps in fairness show the witness what you are referring to because I am not aware whether he was in court this morning or no.
PN413
MR WELLS: No, I am just asking. Well, if he hasn't seen them, he hasn't seen them.
PN414
THE SENIOR DEPUTY PRESIDENT: Well, he doesn't know what they are.
PN415
THE WITNESS: Well, I am not sure what they - what 1, 2, and 3 are.
PN416
MR WELLS: A letter to - - -?---I have never previously seen W1 nor W2 but I have previously seen W3.
PN417
Thank you. Were you aware at any time prior to Saturday, the action that took place in respect of Mr Stone was going to take place, Westrail were in fact going to stand Mr Stone down?---Westrail?
PN418
Or WFE or AWR, I am not sure who did yet?---I was aware that there had been some discussions in relation to car driving at Wagin, I wasn't specifically involved in them though.
PN419
Right. Were you aware that it was intended to take punitive action against Mr Stone if he did not perform the car driving - not his loco driving duty but the car driving duty?---Not before the event, I wasn't, no.
PN420
On day in question was Wagin normally used or was there additional Westrail staff at Wagin for the purpose of the events of that day?---I honestly can't tell you that, I don't know.
PN421
You spoke of exhibit 10 and we talk about the time sheet of Mr Stone?---Yes.
PN422
If I look at that time sheet it says, "Leave without pay". Is that what LWOP stands for?---That's correct, yes.
PN423
But that really wasn't what occurred, was it?---No, I don't believe it was.
PN424
What did occur?---I believe Mr Stone was stood aside, no work is directed and no pay.
PN425
Who signed these time sheets?---Sorry, I can't actually make it out on my - well, I can make our Mr Stone - I assume was Mr Stone's signature but I can't make out the other signature, it appears to be chopped off on the photocopier.
PN426
In the normal course of events, would that signature be a supervising officer?---Yes, it would.
PN427
So what's written on exhibit 10 isn't true?---Sorry, in terms of the - - -
PN428
Leave without pay?---The leave without pay reference, isn't technically correct. I guess from a payment point of view that's effectively the way the day was treated as a day without pay.
PN429
Why was he stood down?---Well, from what I understand because he was asked to perform some duties and he refused to perform them.
PN430
I put it to you that the only duty that he refused to perform was the car ferrying exercise, he was otherwise prepared to perform all of the duties?---I believe that was the centre of the issue, yes. I don't know specifically what happened on that day at Wagin in relation to the "no work as directed no pay" exercise.
PN431
I refer you again to then exhibit W3, a letter of Mr Bell to Mr Stone. Have you got a copy of it?---No, I don't.
PN432
All right. The concept of: no work as directed, no pay does not seem to me to appear on that letter, can you find it for me?---I guess the first paragraph makes reference to it in as much there was a refusal to comply with a lawful instruction.
PN433
Can you tell me which document goes to the question of the instruction of ferrying a vehicle, where will I find in this document that makes that a lawful instruction?---My understanding would be it was an instruction given to him - given to Mr Stone by his supervisor on the day.
PN434
But it says it was lawful, where's the authority? You agree with me there was no agreement between Westrail, WFE and the union?
PN435
MR JOHNSTON: Your Honour, the question of whether an instruction is lawful or not is not one for the witness to determine, it can be determined by the Commission on submission by the parties. Whether or not the instruction complies with a certified agreement or not is not a matter for the witness, it's a matter for a submission of the parties based on the evidence before the Commission.
PN436
THE SENIOR DEPUTY PRESIDENT: What do you say about that, Mr Wells.
PN437
MR WELLS: My friend didn't have a problem asking the previous witness in the box about turning points. He didn't have a problem asking about any other feature that a loco driver might be required to do. I find that this question is in the same vein and therefore ought be allowed.
PN438
THE SENIOR DEPUTY PRESIDENT: Well, I will permit the question.
PN439
THE WITNESS: I am sorry, can you repeat the question now?
PN440
MR WELLS: The question is, what instrument or agreement makes that - or qualifies the lawfulness of the instruction. Will I find it in the certified agreement, will I find it in the award?---Will you find the requirement for them to drive that vehicle in that fashion in those two instruments?
PN441
That's right?---I would say no, you would no.
PN442
In terms of specific things I would not. So what you were asking him to do was different?---I would say what was asked of the employee was a task that was within his skills and competence and that's why it was probably - or why it would have been viewed to be a lawful instruction.
PN443
THE SENIOR DEPUTY PRESIDENT: Can I just say to everybody, I mean, this issue of about whether it's lawful or not might be very important in terms of the question of - if I was determining whether Mr Stone should have been paid or not for the day. The issue before me however is whether the work is done in the way it's customarily done or whether it's not being done in the way it's customarily done because that's the relevant issue as to whether it's industrial action or not. So whether it's lawful or not may not help me in that sense. And I am not determining whether Mr Stone should have been paid or not.
PN444
MR WELLS: No, I am not asking the Commission to do that.
PN445
THE SENIOR DEPUTY PRESIDENT: No, I know you are not but I am just trying to keep the focus of the matter, Mr Wells.
PN446
MR WELLS: Yes, right. Well, in terms of getting to the point then, you would agree with me that this was a practice that had not been done before?---No, I don't agree with that.
PN447
Well, where had it been done before?---I believe from those special Train Notices there is indication that it has been done on numerous other occasions.
PN448
But where has it been done by a certified agreement worker?---As I have answered previously I can't specifically give you details. I can't qualify whether it has or it hasn't.
PN449
I put it to you that on the day in question the employer increased his staff and set the scene to put it directly to Mr Stone and singled Mr Stone out for industrial action, namely standing him down and depriving him of his work when such a provision does not appear in the certified agreement or the award?---I can't say if that's what occurred or not, I am not aware of that taking place.
PN450
Are you aware of any discussion between Mr Bell and the union on the days leading up to Saturday?---I had been informed by Mr Bell that he had had some discussions with the union but the exact nature of those, well obviously didn't hear those discussions but I am aware that there were discussions held.
PN451
I put it to you that the standing down or the action of standing down was a deliberate attempt by Westrail to amend work practices on the site and the action taken against Mr Stone is a reprisal for not agreeing to those changed work practices?---I would have to disagree with that.
PN452
Well, what did Mr Stone do that would otherwise precipitate the action taken by Westrail against Mr Stone on the day?---Failure to comply with a request for him to work in accordance with the workings that were set out for that day.
PN453
But that working that was set out for that day, I put it to you had not been done by certified agreement workers previously, it was not a flexibility available to the employer.
PN454
MR JOHNSTON: Your Honour, we have been over this - - -
PN455
THE SENIOR DEPUTY PRESIDENT: Well, that has been asked and answered, Mr Wells.
PN456
MR WELLS: Well, I don't seem to be able to get an answer from Mr Detez despite the fact he's an expert in the field.
PN457
THE SENIOR DEPUTY PRESIDENT: Well, he has answered it, he says he doesn't know and he's answered that twice. He said he doesn't know of any instance where it has been done. Now, I don't think you can get any further with the witness. He's not going to change that answer you have asked it at least twice, Mr Wells.
PN458
MR WELLS: I was hoping that he would.
PN459
THE SENIOR DEPUTY PRESIDENT: Well, I mean, there's a point where it becomes oppressive and I think we are getting close to it.
PN460
MR WELLS: Right.
PN461
Who stood Mr Stone down?---I understand it was the Rail Operations Coordinator, Mr Justins.
PN462
Who does Mr Justins work for?
PN463
MR JOHNSTON: That question has already been asked and answered. The witness responded he was employed by Westrail Freight employment and that he performed work for Australian Western Railroad, that was one of the early questions.
PN464
THE SENIOR DEPUTY PRESIDENT: I think that's right. You can ask him if that answer is still true.
PN465
MR WELLS: The authority to stand him down was done in WFEs name or AWRs name?---I believe if WFEs name.
PN466
No further questions of this witness.
PN467
THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Wells. Mr Johnson, any re-examination?
PN468
MR JOHNSTON: Yes, thank you, your Honour. I am aware of the time, your Honour, but - - -
PN469
THE SENIOR DEPUTY PRESIDENT: No, we will go until we finish.
PN470
MR JOHNSTON: Thank you.
PN471
THE SENIOR DEPUTY PRESIDENT: If we get hungry we will cope with it.
PN472
PN473
MR JOHNSTON: Mr Detez, you were asked about an agreement, I think it was AG21, an agreement of the State Commission and whether drivers had performed work under that agreement. Mr Detez, have any drivers since their employment by Westrail Freight Employment Pty Limited performed work under the agreement, AG21 to your knowledge?---No, they have not.
PN474
You also gave evidence about the union's attempted withdrawal from that agreement, subsequent withdrawal from that agreement and the application of the Locomotive Engineman's Award to the work of drivers. Which employer employed those drivers at the time that those circumstances took place that you described?---That would be the West Australian Government Railways Commission.
PN475
Mr Detez, to your knowledge since the purchase of WFE as we heard from Mr Wells this morning, the purchase of Westrail Freight Employment Pty Limited by the Australian Railroad Group on or about 16 or 17 December 2000, since that time what instruments have employees of Westrail Freight Employment Pty Limited who operate locomotives for Australian Western Railroad, what instruments have they been employed under?---Either an Australian, an individual Australian Workplace Agreement or the certified agreement between WFE, AITBIU, CEPU and AMWU.
PN476
So they haven't been employed under a state industrial agreement?---No, they have not.
PN477
You were asked, Mr Detez, any threats made to certified agreement drivers just prior to Christmas. I don't think you answered the question, my friend didn't pursue it, but I will. Do you recall any threats being made to drivers before Christmas?---No, I don't.
PN478
Thank you. Now, you also said, Mr Detez, that there was no specific agreement between WFE and the AITBIU in relation to the operation of two separate cars by locomotive crews. Would you say that that type of operation was encompassed in the agreement that you were a witness to on 22 December 2000?---Yes, in as much as we were looking for flexibility to drive motor vehicles.
PN479
Thank you. If I could just draw your attention to the time sheets which Mr Wells spent some time. Mr Detez, have you at any time in your career been involved with payroll - the payroll system?---Yes, I have.
PN480
Right. Now, how are incidents of non-payment records or dealt with under the payroll system?---Well, they are assigned a pay code which you can see in the case of Mr Stone's time sheet, it's W8 and that pay code filters through the payroll system to reduce that number of hours or assign that number of hours to that pay code which is a non payment code.
PN481
So there are a number of pay codes for different types of pay transactions; leave without pay, ordinary hours paid, overtime hours paid would all have different pay codes?---Correct.
PN482
Sick leave, long service leave would have a different pay code?---Yes, they do.
PN483
To your knowledge is there a pay code in the Westrail Freight Employment payroll system for "no work as directed, no pay"?---No, I don't believe there is.
PN484
Right, but the effect of the leave without pay pay code would be to withhold any payment for the day in question?---That's correct, yes.
PN485
Finally, I think, Mr Detez, if I can just go again to the scenario of 9 June because I hadn't got into any detail in that and just to clarify what actually was the roster working for that day in relation to Mr Stone and Mr Fleay. Could you just, if I put a scenario, could you just tell me if I have got it right? What was intended to happen was that Mr Fleay and Mr Stone would each take a car from Wagin and drive to Katanning, that one of those drivers would leave a car at Katanning, would get in the other car and would then drive on to - - -?---Nyabing.
PN486
A further point, thank you, Nyabing where they would relieve the crew of the train that was loading at Nyabing. They would get out of the car and the crew on the train that was being relieved would drive that car back to - - -?---Wagin.
PN487
Back to Wagin, yes. The crew at Nyabing would then load the train, take the train to Katanning, so this is Mr Stone and Mr Fleay, would take the train to Katanning, stable the train at Katanning and then Mr Fleay and Mr Stone would have got into the car which one of them had left at Katanning earlier in the day and driven it back to Wagin?---That's correct.
PN488
Yes, thank you. I have got no further questions, thank you, your Honour.
PN489
PN490
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Johnston.
PN491
MR JOHNSTON: Well, that has taken longer than I thought it might but I will try and pull it all together for the Commission. Industrial action under section 4 of the Act as we said earlier is defined and the definition that is relied on by the union in its application is that:
PN492
WFE is engaged in the performance of work in a manner different from that in which it has customarily performed or the adoption of a ...(reads)... or order made by another tribunal under a law of the Commonwealth or otherwise by or under a law of the Commonwealth.
PN493
And that is the relevant part of the Act. There is no evidence that the work complained of, that is the driving of cars by locomotive crew is in any way worked covered by a certified agreement or an award of this commission or another tribunal of the Commonwealth.
PN494
In fact, the evidence of Mr Curran is that these matters are not dealt with in the award or the certified agreement, the award doesn't make any reference to car driving or not to car driving. As it doesn't make any reference on his evidence to many of the other components of the work of a locomotive driver. And in the absence of any evidence that the work is - the terms and conditions of car driving are prescribed either wholly or partly by an award or order or certified agreement, then the requirement to conduct that work in a certain way by WFE cannot constitute industrial action.
PN495
If the union seeks to say that well, the work of a driver is covered partly by an award or a certified agreement then that might be true. But then the work of a driver is a broad and all encompassing as we have heard in evidence today that a driver can be asked to do many different things in the course of a driver's duties. And to say that to require a driver to do some part of his work in a manner different from that in which it is customarily performed misses the point. It would have to be the entire work of a driver that was done differently if we were to adopt the line that the entire work of a driver is in some way wholly or partly covered by an award or certified agreement and it would lead to say that any variation to any part of the work of a driver could constitute industrial action would, of course, be absurd.
PN496
If drivers normally work trains from say Merredin to Avon but for some reason on a one off occasion had to work a train from Merredin to Forrestfield, we could say: well, that's something different - but it's still part of driving a train it just has to go to a different destination, there's nothing very different about it, you still perform the same type of tasks, you push the throttle, apply the brakes, all the things the drivers do with trains. They check the load, the do the roll-by inspections, they may use the radio, they may use telephones, they may use a number of things. They may have one locomotive on, two locomotives on, one by remote control at the back end of a train. There are a number of variations to things that drivers do and while the award and the certified agreement clearly say how drivers will be paid when they work certain hours or at certain times of the day, the award and certified agreement doesn't go in any detail to the types of jobs that drivers may be required to do on a daily basis.
PN497
So we would submit that the work of driving the car is not the work which is the terms and conditions of which are prescribed wholly and partly by an award or order of the Commission or a certified agreement. So to require to drivers to do that type of work, cannot constitute industrial action for the purposes of this application. In fact, I believe the point has been admitted by the union and indeed Mr Wells in submissions I think said that the award does not envisage car driving. So quite clearly the union concedes that car driving is something that's outside of the award. It's not covered by the award which by reference forms part of the certified agreement.
PN498
So the union's argument on that point must fail and we don't concede it. But let us accept that we take a broader view of the work, the terms and conditions of work being prescribed wholly or partly by an award or order of the Commission. To require that work to be done in a manner different from that which is customarily performed would not be industrial action if under the Act the action by the employer is authorised or agreed by or on behalf of employees of the employer. And the evidence we have before the Commission quite clearly points to an agreement between the union which we would have to say acts for and on behalf of employees who are covered by a certified agreement to which it's a party and who are members of the union.
PN499
There is quite clearly an agreement between the union and Westrail Freight Employment Pty Limited in relation to locomotive crew driving motor vehicles and the terms of that agreement are contained in exhibit J1. They are explained further in exhibit J2 and nowhere in evidence is there any contrary position put by the union at the time that the agreement was struck. In fact, the evidence that there were a number of meetings subsequent to the December 22 agreement between the RTBU and WFE at which this issue doesn't appear to have been raised. There's no evidence that at any time subsequent and certainly up until 28 February, has the union raised as an issue with WFE the performance of this type of driving work by locomotive crews.
PN500
There is evidence, and we accept that we cannot - evidence to the fact that a certified agreement crew definitely did or did not that type of working, but there is evidence that the type of working complained, that is, the driving of two cars by locomotive crew to distant points is working which was in place at the time the agreement was made and has continued to be rostered subsequent to the agreement being made between the RTBU and WFE. The letter of 28 February which is J7 sets out a scheme whereby a more formal arrangement can be put in place that would meet the requirements of WFE for locomotive crews and there is an invitation to the union to respond to that so that that matter can be progressed and progressed expeditiously.
PN501
Again, there is no evidence of any response and we submit that there was no response from the union in relation to that matter. So it is quite reasonable for WFE in those circumstances to continue the practice of requiring people to drive cars provided they don't roster them to do it for a whole shift or to use them as taxi drivers which I think was the expression that might have been used at the meeting. Provided they don't roster them for a whole shift to do that particular kind of work or any of the other things which are mentioned in the notice of a AWR of 21 December. There is no evidence in this matter that the action complained of by the union was the rostering of a driver for a whole shift to drive a car.
PN502
So we would submit that the requirements on Mr Stone on 9 June to drive a car on his own to a distant point was comprehended within the agreement of 22 December and is only now, some later point after that agreement being complained of by the union. At the time there was absolutely no complaint about any arrangements that were in place in relation to car driving or piloting locomotives, shunting or a number of the other things which were enacted on through that agreement. I suppose it's somewhat ironic that what the union appears now to be seeking to do is to place restrictions on the performance of the work by employees of Westrail Freight Employment Pty Limited in relation to the driving of cars.
PN503
If any industrial action, your Honour, is before the Commission today it is the action by the union in trying to place restrictions on the performance of work and that certainly is industrial action as defined in section 4 of the Act. We have heard on a number of occasions how the union seeks to place restrictions, some nit-picking restrictions on the performance of car driving. The union is saying that if you drive a car for the relief of a crew on a train that you are about to drive then that is okay but if you happen to drive a car for a train which you may be not going to relieve, you may be going to go somewhere else, well that's outside the agreement. I mean, how ridiculous. How ridiculous can we get?
PN504
The agreement of 22 December is quite clear, it's very open, it's very broad and it was intended to be broad. It was intended to be broad because as we have heard there was a requirement for the rostering of locomotive crews in as flexible a manner as possible, the manner achievable under the Australian Workplace Agreements because of the extended shift lengths and that in order to prevent drivers on certified agreements from being given rather mundane tasks at depots, we have heard about them sitting in the shed Monday to Friday 9 to 5 on day shift.
PN505
In order to prevent that type of boring work which was an absolute product of the limitations, the specific limitations in the certified agreement and award to shift lengths and other arrangements but it didn't include all these other things such as car driving, etcetera, that the broadness of the agreement was specifically to avoid that rather mundane, boring work for those crews and to enable them to participate more fully in the work of the depot by doing things such as driving cars to and from different locations.
PN506
There is certainly no indication in the December documents J1 and J2 that there was any restriction on the performance of car driving duties other than not to roster someone up to do that for a whole shift and use them as a taxi driver. But even if we were to say, and we don't agree with this, even if we were to say: oh, that was the understanding that drivers would only drive cars in relation to a service that they working.
PN507
The evidence of Mr Detez and it was clarified at the end of his period in the witness box, is that the incident complained of on 9 June involved nothing more than two drivers driving cars which were to be used directly in connection with train services that they were operating. Mr Fleay and Mr Stone were to take cars from Wagin to Katanning, leave one car at Katanning and drive on to Nyabing and relieve the crew of the locomotive at Nyabing. The relief of a crew, driving to a location, relieving crew, that is part of the normal practice that the union would have us believe is the limit of car driving ability of locomotive drivers. That is a very common and normal practice.
PN508
Then Mr Fleay and Mr Stone were to work the train from Nyabing, after loading it, were to work it to Katanning and then they were to stable the train in Katanning and jump into the very car that they had left there. So that car was also driven by Mr Fleay, or would have been driven by Mr Fleay or Mr Stone in connection with the train service that they were to work. So again the union's argument falls flat. I mean, they are trying to create all these artificial restrictions and trying to put in place barriers to efficient operation, efficient rostering, efficient use of employees. And at every turn their argument falls flat, there is no industrial action by Westrail Freight Employment Pty Limited. It has got no reason to take part in industrial action.
PN509
The request on employees to drive cars is not a new request it is one - it is a method of working that was agreed to by the parties on the evidence with no contradiction on the evidence in December. And the particular operation complained of by the union is one that on their own very narrow standards complies with the terms of the agreement. So there is absolutely no industrial action as defined in section 4 for the union to complain of. I really don't think there is much more that needs to be said about this. There really is no evidence of industrial action and even if we look at - there has been some submission from the Bar Table that there is a motive for this industrial action in relation to negotiations that WFE is conducting with the union in relation to an award and certified agreement. There's no evidence that these negotiations are at a stage where either party would want to be putting any pressure on the other.
PN510
I don't want to comment too far on those, the union hasn't brought those things before us, they have just mentioned them. Certainly those negotiations are progressing, certainly there is - both WFE and the union are prevented from taking action in relation to those negotiations while there's a current certified agreement in place and that certified agreement as we see does not expire until 31 August. Then if no agreement is reached it will be open to use the provisions of the Act to put pressure on the other for the negotiation of a further agreement if that's what they desire to do. As far as negotiations that the union might be having with Australia Southern Railroad, well that's a company in South Australia.
PN511
It has got nothing to do with WFE, it just happens to be owned by the same parent company but ASR doesn't make use of WFE employees. I think at the moment Australian Western Railroad in WA doesn't make use of any Australian Southern Railroad employees, so it's really a totally separate matter. I don't see that the requirement on a driver at Wagin to drive a car to another point where you can drive it home later would in any influence the position of either Australian Southern Railroad or the RTBU in relation to those negotiations, it's quite absurd to even suggest that it would.
PN512
So the granting of an order under section 127 as we indicated this morning is a fairly serious matter. And we can understand that the Commission might be persuaded to grant such an order where industrial action was being taken and the consequences of that industrial action were detrimental to employees and were prejudicial to the position of employees in relation to their employment or even prejudicial to the position of the union in relation to negotiations that it might be holding.
PN513
There's absolutely no evidence that that is the case here, neither there is any industrial action being taken or that the action taken by Westrail Freight Employment is in any way prejudicial in those ways. So we would say that this application should be dismissed and should be rejected out of hand. There is absolutely no evidence to support it. I go now to a letter which was raised just at the commencement of this afternoon's proceedings by Mr Wells, and he said that documents had in fact been served on Westrail Freight Employment Pty Limited by facsimile of 18 June from Andrew Thomas, the industrial officer in the union's national office. In submission this morning, Westrail Freight Employment Pty Limited stated that the initiating documents had not been served on the company in accordance with the rules of the Commission and that point was conceded by the union.
PN514
Rule 72 in relation to the service of documents is quite clear on how a document should be served on a body corporate and there has been no service in accordance with that rule. I also in submission suggested that the union may wish to seek an order for substituted service by facsimile. I am not aware that any such order was sought at any time or that any such order has been granted.
PN515
THE SENIOR DEPUTY PRESIDENT: I think the rules were in the process of being amended, Mr Johnston, to provide for service for facsimile. I am not sure whether that has actually been done or not.
PN516
MR JOHNSTON: I am not aware that they have yet been amended.
PN517
THE SENIOR DEPUTY PRESIDENT: Certainly in relation to some documents they have been. Draft amendments have certainly gone to the Governor in Council.
PN518
MR JOHNSTON: However, as I understand the rules stand at the moment, your Honour, I mean, that was the point we were making, that they had not been served in accordance with the rules and nothing that has been presented to the Commission since those submissions this morning would suggest that the documents have yet been served in accordance with the rules. I did receive a copy from Mr Wells following this morning's proceedings and we have been able to proceed in this matter and we are happy to proceed in this matter.
PN519
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Well, Mr Wells, I don't think anything much is going to be gained by looking at the technical requirements as to service, to undertake that matter any further. What do you want to say in reply on the merits?
PN520
MR WELLS: In respect to the merits, we say that the certified agreement does exist. The certified agreement does have clauses. It does have matters dealing with dispute settling procedure. We say that what Westrail embarked upon on the 8th and 9 June was in fact a stand and deliver exercise designed to intimidate drivers employed under the award and certified agreement to extending their current range of duties that bit more. The concern that we have is, we see that as industrial action no less than if the union was to put the reverse position and say: where does the driving motor vehicle come within the requirement of a locomotive engine driver?
PN521
What we say occurred there, Westrail set the situation up. Westrail took action against an individual despite the existence of dispute settling procedure. It was made clear to Westrail that the parties had not agreed this matter that was down at Wagin to happen on the 9th. Certainly Mr Curran's evidence led to that fact and his discussion with Mr Bell. In terms of Westrail they still chose to take the action they did. Clearly, we say it is industrial action. If it is not industrial action, one draws a very fine bow. If my friend says that that's not industrial action, then one could have a look at each and every thing that a local driver does and say: where does that appear?
PN522
That is a nonsense. In terms of what is the situation, we say that the certified agreement exists, that the award exists. In terms of recognising the settlement reached on 22 December, we don't say that that's an agreement. We don't say that at all. In terms of the practice, we have allowed those practices to continue but we do not say that is an agreement.
PN523
THE SENIOR DEPUTY PRESIDENT: But that's the issue, isn't it, Mr Wells? I mean, cutting right to the heart of this problem, the issue is, I think: what is custom and practice, because that's what defines whether it's industrial action or not.
PN524
MR WELLS: That's correct. And we say that the industrial practice that was designed to be done on 9 June was one objected to on the 8th.
PN525
THE SENIOR DEPUTY PRESIDENT: Yes, I understand that.
PN526
MR WELLS: And we say that it was not custom and practice, but despite that, the employer went one step further and invoked what we say was industrial action on the 9th. Now, the concern that we have from a union point of view; if that is not seen to be industrial action, I would not want the organisers of the West Australian branch to go to a particular site for the purpose of invoking how their perception of a matter without going through the dispute settling procedure in the award as a whole. For if that was to occur, surely anarchy would be here and we would be here many more days than we currently are. And I am not suggesting that's beneficial to any party.
PN527
But this idea, that one could go into the ring and ring the bell at a time of their choosing and try and implement a different practice when the other party are disputing that practice certainly the day before in terms of the individual and the organisation was disputing that practice, but to actually go and carry out the action that was to take place, if that is to be condoned, it causes serious offence, I think, to the purpose of dispute settling procedures in a grievance, they may well not be there. And I am not advocating that such would be the case. I am quite aware of the objectives to be served by the Act.
PN528
What we contend is that industrial action did take place, it ought not to have, and that provisions of the Act ought to have been applied. The dispute settling procedure ought to be applied and if it was a genuine dispute between the parties, it should have been sorted out here without an individual being so affected. If it please the Commission.
PN529
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Well, I am conscious that these matters need to be dealt with expeditiously, but the issue is difficult and I think I need to study the evidence before I can determine the matter. I need to study the evidence quite closely, I think, and I will await the transcript, but I will issue my decision as expeditiously as possible after the transcript has been issued. I will reserve on that basis.
ADJOURNED INDEFINITELY [6.55pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
BRIAN JAMES CURRAN, AFFIRMED PN32
CROSS-EXAMINATION BY MR WELLS PN32
EXHIBIT #W1 HANDWRITTEN LETTER FROM ROBERT STONE TO DAMIAN UNWIN DATED 8.6.2001 PN53
EXHIBIT #W2 LETTER TO BRIAN CURRANT RTBU SECRETARY FROM ROBERT STONE, DATED 9.6.2001 PN60
EXHIBIT #W3 LETTER FROM WESTRAIL FREIGHT EMPLOYMENT TO MR STONE, DATED 13.6.2001 PN67
WITNESS WITHDREW PN88
EXHIBIT #W4 DETERMINATION OF COMMISSIONER O'CONNOR AND AGREEMENT ANNEXED TO IT PN106
EXHIBIT #W5 OFFER OF EMPLOYMENT DATED 22.08.2000 PN106
BRIAN JAMES CURRAN, RECALLED PN130
CROSS-EXAMINATION BY MR JOHNSTON PN130
EXHIBIT #W6 FACSIMILE RE TRANSMISSION JOURNAL PN131
RE-EXAMINATION BY MR WELLS PN163
WITNESS WITHDREW PN168
EXHIBIT #J1 LETTER DATED 22.12.2000 FROM MR JOHNSTON TO MR WELLS PN177
EXHIBIT #J2 MEMORANDUM, DATED 28.12.2000 SENT TO ARTBIU PN186
EXHIBIT #J3 LETTER FROM RAIL, TRAM AND BUS INDUSTRY UNION, DATED 29.12.2000 PN191
EXHIBIT #J4 FACSIMILE MESSAGE FROM AUSTRALIAN RAILROAD GROUP, DATED 12.01.2001 PN192
EXHIBIT #J5 LETTER FROM ARG TO THE UNION, DATED 25.01.2001 PN193
EXHIBIT #J6 FACSIMILE OF UNDATED LETTER SIGNED BY R. CHRISTISON PN195
EXHIBIT #J7 LETTER FROM MR JOHNSTON TO MR CHRISTISON, DATED 28.02.2001 PN197
DAVID WILLIAM LAWRENCE DETEZ, AFFIRMED PN205
EXAMINATION-IN-CHIEF BY MR JOHNSTON PN205
EXHIBIT # J8 BUNDLE OF SPECIAL TRAIN NOTES PN235
EXHIBIT #J9 E-MAIL FROM MR DETEZ TO MR GLEN JUSTIN PN242
EXHIBIT #J10 BUNDLE OF DOCUMENTS COMPRISING TIME SHEETS FOR MR FLEAY AND MR STONE PN263
CROSS-EXAMINATION BY MR WELLS PN275
RE-EXAMINATION BY MR JOHNSTON PN473
WITNESS WITHDREW PN490
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