C2001/4227, Transcript of Proceedings [2001] AIRCTrans 2253 (6 September 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LARKIN

C2001/4227

AUSTRALIAN RAIL, TRAM AND BUS
INDUSTRY UNION

and

WESTRAIL FREIGHT EMPLOYMENT
PTY LIMITED

Notification pursuant to Section 99 of the Act
of a dispute re classification structure

SYDNEY

2.11 PM, MONDAY, 20 AUGUST 2001

PN1

THE COMMISSIONER: Could I take appearances please?

PN2

MR R.C. WELLS: I appear for the Rail, Tram and Bus Union.

PN3

MR D.F. JOHNSTON: I appear with MS J. FURY for Westrail Freight Employment Pty Limited.

PN4

MR J. MURIE: I appear for Communications, Electrical and Plumbing Union.

PN5

MR J. MOSSENTON: I appear for the AMWU, Commissioner.

PN6

THE COMMISSIONER: Thank you, Mr Murie and Mr Mossenton. Gentlemen, are you a party to the alleged notification of dispute that I have.

PN7

MR MURIE: I do not yet have in my paperwork to be a party to the application for a bargaining period, no.

PN8

MR MOSSENTON: Both of us are seeking to intervene on this, Commissioner.

PN9

THE COMMISSIONER: All right. Mr Wells, what's your view on that?

PN10

MR WELLS: I certainly welcome intervention as they are parties to the establishment of attempted establishment of this new award in respect of WFE and they've been involved in all of the discussions and are an integral part as far as their trades go of the classification structure, the subject of this afternoon's discussion.

PN11

THE COMMISSIONER: Thank you, Mr Wells. Mr Johnston, what's your view?

PN12

MR JOHNSTON: Commissioner, we object to the appearance of parties other than the party which has lodged the dispute notification for a number of reasons but primarily as Mr Wells had indicated the matter today is about negotiation of an award and a classification structure which might be contained in that. In order to have an award made by the Commission in respect of the Australian Rail, Tram and Bus Industry Union and Westrail Freight Employment Pty Limited, of course there is a dispute finding between those parties out of which an award could be made.

PN13

There is no dispute finding between WFE and either the AMWU or the CEPU so in our view there is no award which could be made going beyond a classification structure which is the subject of this dispute in respect of those two parties and given that they are not even a party to the application before the Commission today we'd object to their appearance here.

PN14

THE COMMISSIONER: Mr Mossenton or Mr Murie, what do you say?

PN15

MR MURIE: Well, there's no argument, of course. We do not have in our formal application a dispute finding. If the employer objects then it's their every right and Mr Wells is here to assist. We've been party to all of the discussions, we've been party to all of the negotiations and we intend to be party to the award. It's a matter of getting in our dispute finding. At the end of the day it's not going to change anything I suppose whether we're here today or not. The employer is going to have to deal with us one way or the other. We need to get our paperwork in order.

PN16

THE COMMISSIONER: Mr Johnston, has the AMWU and the CEPU been part of the negotiations for this new award?

PN17

MR JOHNSTON: They've certainly been involved in the discussions we've held to date in respect of the formulation of an award. There was an undertaken given by WFE in a certified agreement which is registered between WFE and the three parties here today that we would hold discussions but that's the extent of the commitment by WFE, simply that we would hold discussions. It doesn't go any further than that. If the parties have not progressed matters from their side in order to make an award possible ultimately then that's their affair and we don't see that they have any standing before the Commission where the matter is sought to be conciliated or arbitrated.

PN18

THE COMMISSIONER: All right. I've decided Mr Murie and Mr Mossenton to grant you leave to intervene. I think it is appropriate. The issue gather from the dispute notification from the RTBU who does not object the AMWU and the CEPU intervening in the matter before me concerns an award which I imagine the three unions will seek to be bound by that award so I think it's appropriate for the purposes of today and if the need arises for further conferences or hearings then it's appropriate that the two other unions be privy to discussions and part of those discussions. Now, Mr Wells, it's RTBUs notification.

PN19

MR WELLS: That's correct. The situation has developed where the parties explored a new award to replace the existing certified agreement which comes to the end of its natural life on 31st of this month. The discussions have taken place and there have been numerous meetings since mid-February onwards with a view to forming a new award and new certified agreement or agreements.

PN20

THE COMMISSIONER: It's not a new award in a sense, it's a first award isn't it? Will it be a first award?

PN21

MR WELLS: Effectively, as I see it, it would be a first award because the function of the certified agreement was to take awards that were in the State jurisdiction and grant them a practical operation for a period of 8 months during which time the parties would then seek to have a new award take its place. What happened is WFEs operations commenced after the sale of West Australian Government Railways freight business then called Westrail. That happened on 16 December and following that occurrence and prior to it we had a scheme of arrangement whereby Westrail Freight Employment Pty Limited was a company set up prior to the actual sale and the scheme of the sale saw ARG who were the successful purchasers have to purchase the firm WFE. So WFE was in fact a set up by the West Australian Government for the purpose of transmitting its employees and their conditions over to the new freight operation when that business was sold in December. The scheme of the certified agreement which was certified by Commissioner O'Connor in Perth on 3 October 2000 was in fact a vehicle to transmit those award conditions as they existed and agreements as they existed both in the State and Federal arena into a single document to facilitate the operation for a period of 8 months.

PN22

It was envisioned by the parties through that period of time that they would arrive at a new award and certified agreements so as to continue then the operation of ARG and its associated companies. The parties have met. It was made clear in the initial meeting of the parties when the ARTBIU tried to get a memorandum of understanding so wanted a strict timetable would arrive at the situation of a new award effectively then smoothing over the arrangements that existed by the certified agreement to be in place as at 31 August.

PN23

The discussion went outside their timetable and we haven't reached agreement. The areas that WFE have insisted on right through the whole of the area is that they wanted a 7 day a week 24 hour a day operation that didn't include considerations for Saturday and Sunday penalties and didn't include shift work; they were insisting on that. There's been some sympathy from that point of view from the Rail, Tram and Bus Union in terms of it saw rail operations as a 7 day a week 24 hour a day operation.

PN24

The parties have arrived at a form of agreement between them where we say nothing is agreed until it is all agreed; we do have an award that does talk about a number of basic conditions but we have not reached agreement on the classification structure.

PN25

THE COMMISSIONER: Is the classification structure the only issue outstanding between the parties?

PN26

MR WELLS: I believe if we solve the classification structure we will solve the other problems that we have in the award which would lead us into the certified agreement. In terms of the classification structure, of course, it goes to the number of areas inside a classification structure that you would expect to find; that leads to the question of competency as to wage rates and to relativities. They are the areas that the parties are a part of.

PN27

THE COMMISSIONER: So the parties argue disagreement that the structure must contain appropriate levels with appropriate relativities between those levels, that issue is not disputed, what is disputed is what the levels are or how many levels, what is the relativity between the levels, that would be the issue in dispute?

PN28

MR WELLS: Well, the issue in dispute is relativities, it is competencies. In terms of the type of classifications, that has a lesser area of dispute but we do have a distinct difference on the question of the relevance of relativities within the industry and in terms of national competencies as recognised by the unions and which WFE seem to have considerable difficulty recognising.

PN29

In terms of the remuneration, we looked at the remuneration from the point of view of a seven-day week, 23-hour day point of view and that seems to be a problem with WFE as well. There would be minor differences between depots as to an additional amount that might be due in a certified agreement environment but in terms of the award, the award is looked at in that light.

PN30

THE COMMISSIONER: What are you saying about the remuneration, that the remuneration is set with consideration of seven days a week and a 24-hour operation, are you saying that?

PN31

MR WELLS: That is correct, in the classification structure.

PN32

THE COMMISSIONER: Not a minimum rates award?

PN33

MR WELLS: Well, it would be a minimum rate if one considered the treatment that was applied, say, in the seaman/deckhand type case, where you simply can't perform the work of the operative rail grades in a 9 to 5 Monday to Friday environment, it is just not possible without using overtime and penalty rates, it's the system, it leads to an inequitable arrangement that it is not possible to arrive at.

PN34

THE COMMISSIONER: All right, well, we might revisit that in a moment, because the Commission is only empowered to make a minimum rates award.

PN35

MR WELLS: Yes, we are aware of that.

PN36

THE COMMISSIONER: So what is the union actually seeking with its notification, Mr Wells?

PN37

MR WELLS: What we are seeking is the assistance of the Commission in solving the impasse that exists between the parties in respect of the existence of relativities, the recognition of national competencies and the remuneration outcome that follows from that, so it's a question of are the relativities relevant, we say that they are, of course. We had a look at the five benchmark cases that were looked at by the Commission in determining relativities, some years ago now, and we then had a look at the question of competencies and what determines which level a person ought to be on, that is certainly in dispute.

PN38

We then had a look at what the final outcome will be if you do have a look at a 24-hour a day seven-day a week operation, being in mind WFE are not interested in an award that includes shift penalties, an award that looks at Saturdays and Sundays as being any different to any of the other days, Monday to Friday during the week, they are simply not interested. I understand the minimum rates argument, we can revisit that later.

PN39

THE COMMISSIONER: In what way do you seek the Commission's assistance, how do you envisage it?

PN40

MR WELLS: We would seek the Commission's assistance in respect of the timetabling of future meetings between the parties; we are seeking the assistance of the Commission in respect of the recognition that relativities do exist despite the fact that the five industries upon which relativities were determined by the Federal Commission not being the rail industry. We do not see the rail industry as significantly different because it does have a number of classifications that do exist within those five industries determined. We also look at the assistance the Commission might give in the co-joint areas that flow out of that, it knows the question of recognition of the competencies on a national basis.

PN41

We think that those things are fairly straightforward and simple in the rail industry as it stands. The relativities that the union have put forward to the employer we say are only to be backed up by the examination of rates in comparable site rail systems or larger rail systems as they exist in Australia today. What the employer was offering was not that.

PN42

THE COMMISSIONER: Yes. Mr Mossenton or Mr Murie, is there anything you want to add at the moment?

PN43

MR MURIE: Well, I may just also add that whilst we understand the minimum rates award and that a minimum rates calculation needs to be made if an award was to be made by the Commission, we also need to take account that elements within the proposed award go beyond minimum conditions. There is productivity being sought within the document. The quandary in my mind just now is how would we handle those matters that we say represent productivity and improvement to the employer and yet can only arbitrate a minimum rate in wages where the award is more than minimum conditions.

PN44

THE COMMISSIONER: Yes, all right, we might talk about that in a moment.

PN45

MR JOHNSTON: Commissioner, from WFE's point of view the application by the RTBU is premature and somewhat surprising given the history of the negotiations between the parties. As I mentioned earlier, there was an undertaking given by WFE in the certified agreement registered that Mr Wells referred to that following the sale of the Westrail Freight business and the starting up of Westrail Freight Employment Pty Limited and ART's operations in Western Australia that we would hold discussions with the parties on putting together I think the term in the agreement is a modern award which would cover Westrail Freight Employment. That is certainly what we have been trying to do, to put forward the basis of a modern award which does not rely on outmoded, archaic provisions which have applied in the public sector rail industry for last hundred years.

PN46

The rail industry in Australia, as I am sure the Commission is aware, is going through massive transformation at a very rapid rate, with an impending sale of Freightcorp and National Rail Corporation we will virtually have a totally privatised rail industry in Australia with the exception of Queensland, which always seems to be the exception in these matters. The rail industry itself in the way it operates is different in the way it operated in the past. It has to be much more competitive being in the private sector rather than subsidised by government and hoping that traffic is regulated to it; it has to compete with road transport, with sea transport and with other companies which are logistics companies which can operate their own trains on the rail infrastructure within Australia, so the industry is much more competitive.

PN47

What we have put forward to the parties is an outline of an award which recognises where the rail industry is today and where it will be going in the future and it incorporates within it classification structures and rates of pay that reflect the needs of WFE as a business. The award that is being sought is only going to apply to WFE. We're not seeking an award which is going to apply across Australia to every rail operator. It is an award which will apply particularly to this business.

PN48

The features of this business, given its due graphical location, the types of traffics which it carries on the rail system are unique. They are not the same as say FreightCorp or National Rail Corporation or Australia Southern Railroad or Freight Australia. They are unique and each of those rail companies has its own set of unique conditions which pertain particularly to it, the distances they travel over, the types of traffics they handle, the types of locomotives that are used, the kind of yard operations they have are all different.

PN49

So we have sought to put forward something which reflects the needs of Westrail Freight Employment Proprietary Limited as a company which supplies labour to particular rail operators and particularly Australia Western Railroad in Western Australia. The unions have sought to - we're not exactly clear on their position on the majority of conditions that we have put forward. There has from time to time been statements that if the rates of pay are all right, then we're pretty happy with everything else when some parties are at the table.

PN50

When other parties are at the table, the position expressed might be somewhat different but what the matter here today appears to be about is on what basis you construct your classification structure and a rate of pay structure. What the unions in our view are seeking to do is have a classification structure for the rail industry which is based on the metal trades industry. They seek to tie progression through classifications to the attainment of competencies and it would appear that the attainment of competencies is separate from the requirement for those competencies to be held by the employer and also tie rates of pay to the attainment of competencies.

PN51

In our view, it is a fundamentally flawed method of classification and pay construction that it does not reflect what the employer actually requires in the business. It does not reflect the nature of the business and doesn't reflect the nature of the work which people will actually perform under the award or under any subsequent certified agreement. There have not been meetings between the parties now since I think about the 19th of last month but there has been no denial on the part of WFE of requests for meetings and the way is still open for the parties to hone the negotiations on the terms of the award and work together to get a classification structure which meets the requirements of the company and which the union parties can be satisfied meets some of what they are seeking in showing that there is some sound basis to the classification structure put forward.

PN52

That really is our position. We certainly have not closed the door on discussions and negotiations and I'm not sure what the Commission is going to be able to do to facilitate things further because things have not reached an impasse as far as we are concerned. We don't agree with the unions position that you have to have a classification structure based on metal trades standards and relativities and have identifiable competencies attached to every classification. The industry just doesn't work like that.

PN53

WFE has recognised national competency standards as far as training is concerned. We have said we will train people in the competencies that are required by our business to those standards and recognise those standards but that is a different matter from tying the acquisition of competencies to a dollar value, putting that into a rate of pay. That in our view is fundamentally flawed.

PN54

THE COMMISSIONER: What time frame do you see these negotiations going over, Mr Johnston?

PN55

MR JOHNSTON: Well, again, Commissioner, we like the union parties at the beginning of the year had an objective of having things in place by the end of this month. Now, that's fine as long as things are being agreed to. When the going gets a bit harder, then you simply have to work hard and extend your deadlines. I don't like putting timeframes on it because all that does is cause deadlines to be set which fall over and people get upset about it.

PN56

In this case, as I say, Commissioner, it is a first award. There was a clean slate there. The parties should be able to put conditions that are relevant to the organisation that the award is sought in respect of and work towards getting an award that is relevant to that particular sector of the industry and it may take a month, it may take three or four months. I don't know that time is a particularly pressing factor.

PN57

As we see already, without an award in place there is a certified agreement between the parties. We're operating under conditions which as Mr Wells said have been adopted from the public sector with one or two telling modifications. In an ideal world, we might have sought more modifications to the public sector conditions but that hasn't been the case and the business is running successfully and people are working within the terms of the certified agreement already.

PN58

There is no pressing need for an award that would need the setting of deadlines or timetabling other than the will of the parties to come together and negotiate a successful outcome.

PN59

THE COMMISSIONER: I hear what you're saying in that regard. So what you think is it could take a couple of more months, two or three months without setting a deadline on it?

PN60

MR JOHNSTON: I would say that is in the ball park, Commissioner, yes.

PN61

THE COMMISSIONER: All right. Mr Wells, what's your idea of a timeframe?

PN62

MR WELLS: I believe that we'd need a much lesser timeframe. I think that we if we can't wrap it up in four to six weeks, I think then probably we've gone past the talking stage and we'd have to look at what other means the act might give to the parties in order to assist them with the objective of ending up with a modern award in the rail industry. There is a history of these things. Although WFE is a new company, Westrail is certainly not and in terms of agreements, the rank and file do not look kindly on agreements that just go past their deadline and the rank and file are not getting a pay increase arising out of it and they just think that the exercises that Westrail have embarked on in the past and WFE are looking at here, seem to them to be the same action flowing through unfortunately.

PN63

What they're concerned about is that they have a look at the safety net adjustments in the life of it gone through. What they're saying is that because of the certified agreement, we're not eligible for those. In that respect, they're looking at a pay increase as workers do and they're saying that we don't wish to go two or three months or beyond. They are wary of WFE, bearing in mind the matter that was only determined by the Commission in June in respect of a dispute finding in terms of WFE with the number of matters that were challenged there.

PN64

They just take that as an indication that WFE are quite prepared to discuss this for as many months as they can, getting labour at the same price as it's getting it now. Now, the membership are very vary of that factor. They don't believe that WFE in terms of its operation have anything to lose by dragging it out over months, month after month after month and that's what they believe the process being embarked upon is and they have reason to believe that.

PN65

THE COMMISSIONER: Mr Wells, do you envisage the new award providing a pay increase?

PN66

MR WELLS: It may provide a solution to the existing environment. The existing environment out there is that there's a substantial number of workers on AWAs rather than be covered by the certified agreement because their rate of pay is in excess of the certified agreement because the certified agreement is based on existing awards with the limitations those awards provide. The idea of a modern award is to remove those barriers and so end the discrimination that exists in the workplace between certified agreements and AWAs.

PN67

THE COMMISSIONER: Yes. I'm a tad unsure that the award would fix the problem you state is there. The award is an instrument that would underpin any agreement that may be made in relation to the employer and those employees that are employed unless, of course, what you're attempting to advise me is that an appropriate classification structure may provide to some employees a higher level which then may be a higher rate, I'm unsure. But I think for the purposes of today that we might go into conference and discuss a couple of the issues that have been raised.

PN68

I don't know whether the parties or the RTBU would seek another conference in relation to the matter. As you know, gentlemen, I am Sydney based. I am planning to travel to Western Australia and I had planned to be there possibly the first week in October. Now, we are nearly at the end of August. Looking at your timeframe, Mr Wells, I don't think that a conference scheduled with the parties in Perth in October would be unrealistic and not part of the timeframe you say from the unions perspective you would prefer to keep to.

PN69

Depending on what may flow from the parties further talks and if required, a conference face to face in October, then if issues aren't resolved, then the parties may seek to discuss what avenue is available to them in regards to the outstanding issues. Now, do you think that would be beneficial, Mr Wells, to consider a face to face conference in Perth in the first week of October?

PN70

MR WELLS: I think it certainly would be beneficial. I think it would be necessary. I would hope that the parties might be able to progress the matter some but I'm not optimistic. The history hasn't led me to be optimistic.

PN71

THE COMMISSIONER: Well, the thing is that I might look for a time the first week in October. If anybody is not available that week, could they please let my associate know what their unavailability is but I might look at listing it for a conference to discuss some of those issues but if the parties reach agreement before that scheduled conference, then the parties may actually seek that I change the listing to a hearing to make their consent award. So that's another possibility.

PN72

If issues are resolved, then you'll have a consent document. Then the conference that I would list would simply turn into a hearing for me to actually make the award if I'm satisfied it meets the requirements of the act. Now, do you both have a draft of what you seek in regards to the classification structure?

PN73

MR WELLS: We have a simple draft that we've drawn but we also have a simple draft that WFE have drawn. I'm not sure that the Commission would want it in those terms but I certainly don't mind advancing that material which we gave to Westrail in respect of our proposed draft of relativities pertaining to the Commission.

PN74

THE COMMISSIONER: Does your draft, Mr Wells, have - it has the relativities on it, it has the dollar figures to those relativities?

PN75

MR WELLS: Yes, it does.

PN76

THE COMMISSIONER: Do you have definitions for the different levels within the structure?

PN77

MR WELLS: No, not in those terms. What we have is, we've taken the definitions that exist in respect of the grades below 100 percent from the existing Rail Employees Award and we've said in respect of those grades above, we have modelled the model that we have looked at on National Rail because in terms of National Rail, we view National Rail as a modern rail system and its award is fairly current in terms of its origin and its enterprise agreements are fairly recent in terms of their classifications.

PN78

So we've looked at those structures there and we say that those structures there could be mirrored within WFE, bearing in mind, if the Commission will bear with, I'll just explain WFE. It may assist. I think I explained it earlier but I don't think I explained totally what the situation is.

PN79

THE COMMISSIONER: Mr Wells, could I just interrupt you for a moment if I could. Unfortunately today I do have a 3 o'clock matter. I might go back to that. I just want to fine tune a few things so we can start to think where we're heading and what's the appropriate course of action. So keep that in mind but when I ask Mr Johnston about his draft, then we might discuss that a bit and then if we've got time you might, and I think it's beneficial that you and Mr Johnston put on the record because this conference is being recorded today. So if you seek transcript, please put your order in.

PN80

I think it's beneficial that both of you do put a bit of the history of the organisation before me. That type of information is valuable and not a waste of time at all but just for the moment so we know where we're going, I'd like to ask Mr Johnston the same thing. Mr Johnston, you have a draft?

PN81

MR JOHNSTON: Yes, we had a draft which we put to the union which shows classifications and indicative duties and rates of pay that we see appropriate to WFEs operation.

PN82

THE COMMISSIONER: You've calculated the relativities between those different levels?

PN83

MR JOHNSTON: No, we haven't put forward a relativity based structure and as the Commission is aware, relativities currently are flattened out by national wage increases. Relativities to a large extent, in our view are irrelevant in creating classification structures. What counts for rates of pay that apply to work within the organisation is the value of the work within the organisation to the organisation and we oppose ..... construction of classifications based on some national percentages which have no bearing on the operation of the business.

PN84

THE COMMISSIONER: You have a draft of what you say is appropriate. Let's forget about all the other issues at the moment. Possibly Mr Wells is right that if you get over this hurdle everything will fall into place. It may, it may not, I don't know. Both of you have a draft and you have a position as you've just quickly outlined to me as in to why your draft structure is the appropriate structure. I think it might be beneficial and you tell me if you think it is not that you actually forward that material to me and what I'd like to do is have a look over that material and because we are hindered to a certain extent because of distance, unfortunately, it might be appropriate that before the conference in October, I actually forward some comment back in relation to your draft which would be copied to the other party. All correspondence is to be copied.

PN85

Now, I may or I may not but what I would forward back may be questions to ask you as in to why do you say this or point you in another direction or make a comment or refer you to some Full Bench authority. I don't quite know but it might be beneficial to your discussions if I had a look over what you are proposing, consider why you're proposing it and without making any decision, possibly forming a prima facie view and forwarding that view to you as something you might take on board for your next meeting. So that way, before we get to October, you may have resolved your issues or you may have fine tuned them and narrowed them. Now, do you think that would be beneficial?

PN86

MR WELLS: I think it would be.

PN87

THE COMMISSIONER: Mr Johnston?

PN88

MR JOHNSTON: Yes, Commissioner, we're quite happy to go along that path and any comments that the Commission makes, of course, will be noted and taken on board by the parties.

PN89

THE COMMISSIONER: Please bear in mind, ladies and gentlemen, that if I make any comments on your draft, those comments will be purely prima facie. They may be questions. They may be how does that sit with the following decision in a Full Bench decision or what have you. So they would be prima facie views or questions that the parties would consider and advise me accordingly, either before I come to Perth or in that conference the first week. When do you think you could forward that material to me, please?

PN90

MR WELLS: I think I'd be able to forward it to you within 24 hours.

PN91

THE COMMISSIONER: Before 24 August?

PN92

MR WELLS: Certainly before the 24th.

PN93

THE COMMISSIONER: Well, that way you may want to give me a bit of an outline as in to why you say your classification is appropriate and that way I can consider that. So if I could have that information from both of you by 24 August, that would be appreciated. Also, if you could in that letter, advise me of any of your unavailability in the first week of October. Now, I'm going to make a couple of comments just very quickly and then, Mr Wells, if you wish to give me a little bit of background or Mr Johnston will have a few more minutes before my 3 o'clock and you're more than welcome to put that on the record before me.

PN94

What I want to say to you is that the award that you're looking at must be a minimum rates award. Anything over and above the rates contained in that minimum award is to be handled by agreements. Now, in saying that, your structure must reflect minimum rates of pay for the particular work performed. That is not to say that you could not have a provision in the award that gives you an option to pay a rate which takes into account a seven-day roster and a 24-hour operation.

PN95

Now, if you look at the award simplification decision, if memory serves me correct, the Full Bench provided to the parties a provision which was an option for annualised salaries. Also in the Full Bench decision in the exemption case which if memory serves me correct was the Clerks Breweries Award, the Full Bench pointed those parties off to what the award simplification Full Bench had said in regards to options for annualised salaries.

PN96

Now, a minimum award can contain a provision that provides for a particular payment for particular types of work situations, but at the end of the day the award must be a minimum rates award. Section 88B(3) of the act says to the Commission:

PN97

In performing its functions under this part, the Commission must have regard to the following -

PN98

and paragraph (a) of that section says:

PN99

The need for any alterations to wage relativities between awards to be based on skill, responsibility and the conditions under which work is performed.

PN100

I find it difficult to consider a classification structure that does not have appropriate definitions for the work to be performed and that does not have relativities between the particular levels in that structure. What those relativities may be, they must be based on work value principles and this Commission cannot make an award that is not a minimum rates award and in making an award I must have regard to the relativities in your award as opposed to some other award which has been through the minimum rates adjustment and has properly fixed minimum rates.

PN101

Now, that's the two comments that I wanted to make to you. I cannot make a paid rates award as I'm quite sure the parties know. I can only make a minimum rates award and I must be satisfied that the rates of pay in that classification structure for the particular levels within that structure are properly fixed minimum rate which have appropriate relativities based on the work to be performed.

PN102

I think they're the only two things or couple of things that I wanted to mention to you and you might take those comments onboard when you're getting ready for your next discussion but in the interim, if you would forward those two positions to me and if I could have it by 24 August, then I will attempt to turn my mind to it immediately and see if there's anything that I can forward to you or advise you that may assist you the next time you have your meetings.

PN103

MR JOHNSTON: I'd just like to put something on the record. I'm award of the time factor but having heard Mr Wells wax lyrical on the history of industrial relations, we certainly don't have time to hear that today, but the parties have been discussing an award and a certified agreement. WFE does not see that it is necessary to have an award in place before any certified agreement can be put in place. Clearly we have a certified agreement at the moment. We could have another certified agreement following on from the expiry of the current agreement on 31 August.

PN104

We would not see that any delay in the negotiation or consent to or arbitration of a new award should delay the parties ability to get together to discuss the content of a new certified agreement which would accurately reflect the work being performed by the organisation and rates of pay that are being paid currently and that should be paid into the future. I think it is important since the parties, particularly the RTBU has made it clear right from February that if there is no agreement by 31 August, they would take whatever action they could under the act to ensure that they could get an agreement, but we say that there is no delay on the part of WFE in respect of negotiating an agreement which can follow on from the current agreement that we have.

PN105

THE COMMISSIONER: Well, Mr Johnston, I won't make comment on that. You've put something on the record. If the parties are negotiating an agreement, then that is fine, I have no problem with that. In regards to the award, I have a dispute notification before me and I've already outlined the way I see this file should go. If I have as part of this file an application to make an award, then WFE can reserve its right to object to the making of that award. I just pass no comment on it at all. That's for the parties to determine and then if I receive an application, then in whatever regard that application may be, then I will deal with it when and if it ever arises.

PN106

Just in regards to looking at your classification as well, the classification must be appropriate for the organisation in which that classification structure is to operate, but it must also have regard or I must also have regard to the provisions of the act which direct me into my role in the making of an award. So that's the only comment I'll make in that regard. Now, Mr Wells, did you wish to place anything else on the record at all that you think may be beneficial at all to the matter that I have before me?

PN107

MR WELLS: Yes, just to explain in terms of WFE what they are. WFE as I spoke of earlier see themselves as a labour hire labour provider. They do not see themselves as an operator of a railroad. AWR is the operator of a railroad. WFE supplies staff to AWR. I think I should make that clear to the Commission in terms of where that comes from because it does help in understanding the seven-day a week 24-hour a day modern rail approach that Mr Johnston talks about. WFE have claimed consistently that they cannot roster staff and they do not roster staff.

PN108

So in terms of the award that we're talking about, that is a significant change from the rail industry as it stands everywhere else.

PN109

THE COMMISSIONER: Yes. I can understand what you're saying to me. How an award is to be made to take those issues into consideration is something that I'm sure the parties are discussing and it's something I will have to take on board as well but I do not move away from my point that any award must be a properly fixed minimum rates award with appropriate relativities based on work value.

PN110

So it concerns me the issue of remuneration for a seven-day a week 24-hour operation, but I will turn my mind to what you've stated to me, Mr Wells, and I'll also give consideration to the material that the parties will forward to me by the 24th. Then we'll see where we go from that point and as I say, if the issue is still or issues are still outstanding in the first week of October, then we'll have an opportunity to conference face to face and I will have a better knowledge of the issues that are before you, through that material that you will file with me this week.

PN111

Now, is there anything further before I adjourn at all, ladies and gentlemen? I think we know where we're heading. If anything arises apart from we've stated, please let me know and we'll see what we can do. If there's nothing further, the Commission is adjourned.

ADJOURNED INDEFINITELY [3.04pm]