C2001/3512, Transcript of Proceedings [2001] AIRCTrans 3560 (18 December 2001)

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TRANSCRIPT OF PROCEEDINGS

O/N 8018

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT LEARY

C2001/3512

ENTERPRISE BARGAINING AWARD

Application pursuant to section 111 of the Act
by the Australian Rail, Tram and Bus Industry
Union for the making of a new award to be known
as the Abt Wilderness Railway Award 2001

LAUNCESTON

11.17 AM, MONDAY, 3 DECEMBER 2001

PN1

MR A. THOMAS: I appear on behalf of the Rail, Tram and Bus Union and appearing with me is MR R. NEIL.

PN2

MR A. CAMERON: I am from the Tasmanian Chamber of Commerce and Industry appearing on behalf of the employer and with me Mr R. SMITH from the employer company.

PN3

THE DEPUTY PRESIDENT: Thank you. If it is more comfortable to stay seated, this is a rather uncomfortable Court room. This is an application by the union for the making of an award to cover the Apt Railway. So perhaps if I ask Mr Thomas to open up, thank you.

PN4

MR THOMAS: Thank you, your Honour. Your Honour, this is an application pursuant to section 111(1)(b) of the Act seeking the making of a new award. In particular the RTPU seeks the making of an interim award pursuant to section 111(1)(b)(ii) of the Act and in doing so we will take into account those subsequent provisions being section 111(1)(d) and section 111(1)(e) of the Act in terms of the making of an interim award. Your Honour, the RTPU will submit in the course of the proceedings of this matter that the Commission should exercise its discretion to make an interim award. We will, amongst other things, argue that the interim award is necessary to protect wages and conditions and that in the circumstances under which the application is made, the need for an interim award is justified.

PN5

Further, it would be our submission that the application and the award accompanying that application meet the requirements of the wage fixing principles. In that respect it would be our submission that they meet the minimum rates requirements and the provisions in the Act pursuant to section 89A and the allowable matters considerations. However, your Honour, we were informed in the latter part of last week that the employer had foreshadowed a couple of threshold issues, they being section 111AAA and section 111(1)(g)(ii). We note, your Honour, that in terms of procedure that those matters need to be heard and determined before the Commission can consider the merit or otherwise of the interim award. We also observed, your Honour, that the Commission does have limited time today.

PN6

THE DEPUTY PRESIDENT: Yes, thanks to Qantas Airways.

PN7

MR THOMAS: Yes, well, a lot of things can be said about Qantas.

PN8

THE DEPUTY PRESIDENT: I am sure but none of them are going to help us in this application.

PN9

MR THOMAS: That is correct. That such, your Honour, I think what we need to do whilst we are all assembled in the one room is make expeditious time of what we have got. In that sense, with respect to section 111AAA, which I take it would end up being first cab off the rank in terms of the hearing.

PN10

THE DEPUTY PRESIDENT: Yes, we need to deal with that first.

PN11

MR THOMAS: The Commission is required pursuant to section 111AAA(2) that in determining the public interest to give primary consideration to the views of the employees that are covered by the dispute in question, in the view of the employee or employers, and in doing so the Commission must inform itself as quickly as it can of the views referred to and may inform itself in such manner as it thinks fit. I am there quoting from subclause (3) of 111AAA. Your Honour, from the point of view of the employees to whom the award is sought to cover, the RTBU has prepared an affidavit by Mr Neil. It goes, I might add, into some broader issues of 111AAA in terms of application of State awards and the nature of the industry, etcetera, but that affidavit also contains a resolution of a meeting held by employees of Apt last week.

PN12

In addition, your Honour, we have two employees of Apt Wilderness Railway with us here today. The question, I think, for consideration at this point is with respect to the employees, and I guess it will depend upon what the employer's view is as well, is to how the Commission will ascertain those views.

PN13

THE DEPUTY PRESIDENT: Well, I guess the first thing that has to be done is I have to have the application made, then I have to do some silly things. Like, I have to ring my president and ask him to refer it back to - no, it is not even a reference. To give it back to me in my capacity as a member of the State Tribunal and then I think I turn around and come back to you as a member of the State Tribunal and proceed with parts 2 and parts 3. It is interesting, this section of the Act, nobody seems to be too sure how it works. It is certainly not user-friendly but because we are in Tasmania and because it is not uncommon to do two things at once in Tasmania, we can deal with it in whichever capacity, but I cannot do anything until the application is made, which is why although my Federal President has been alerted, I cannot speak to him until the application is made.

PN14

So it may be to expedite it, if Mr Cameron tells me whether or not he is going to make the application, I can then disappear and make a telephone call and then come back and say, well, I am now here as a member of the State Tribunal.

PN15

MR THOMAS: Yes, I think that is proper - - -

PN16

THE DEPUTY PRESIDENT: It might save some time. It may not make much sense but it might save some time.

PN17

MR CAMERON: Thank you, Deputy President, and whilst you are wearing your Deputy President's I can inform the Commission that the employer will be - is making application under section 111AAA of the Workplace Relations Act to seek that the Commission ceased its dealing with this particular dispute because, pursuant to section 111AAA(1), there are employees employed by Apt Railway are governed and covered by various common law awards and occupational awards of the State Commission, Tasmanian Industrial Relations Commission. I have provided Mr Thomas with copies of various sections of relevant awards that do have application to these employees, and I will provide a copy to the Commission. There is the Restaurant Keepers Award, the Clerical and Municipal Employees Private Sector Award, the Retail Trades Award and also the Entertainment Award, all of which have application to argue to employees employed by Apt Railway.

PN18

In relation to the Retail Trades Award it is probably worth pointing out for the benefit of Mr Thomas that that has application pursuant to schedule 2 of the Industrial Relations Act (1984) of the Tasmanian Commission which has, pursuant to regulation 14(1), whereby the work of a retail employee is deemed to be covered by the Retail Trades Award. At the Apt Railway there are employees engaged in the selling and retailing of souvenirs and other products and therefore their work is suitably covered by the Retail Trades Award of the Tasmanian Commission.

PN19

THE DEPUTY PRESIDENT: And the proposed interim award picks up those sorts of classifications?

PN20

MR CAMERON: It endeavours to pick up those employees. In relation to the Restaurant Keepers Award, if the Commission draws the Commission's attention to the scope of that, but also to the - on page 4 as marked at page 3 of the documents, under the general definitions there is a definition of food and beverage establishment and it goes on to say that that covers, at the very second last line of that definition, includes restaurant, take-away food, cafeteria, canteen coffee shop and tea house. Annexed to that are wage schedules. I apologise but that seems to be before the recent safety-net adjustment which has been made applicable to this award and the safety net obviously was flowed through.

PN21

The Clerical and Administrative Employees is an occupational award of the Tasmanian Industrial Commission, one of the few occupational awards, and specifically covers clerical and admin employees if they are not covered by one of the industry awards. The Apt Railway, besides running the railway, obviously has office staff that manage and administer the operation and it could be argued that the employees who fit within those categories fall within the application of the Clerical and Admin Employees Private Sector Award. The Entertainment Award is an award that covers, and it is one of those interesting awards that has two parts, one of which refers to wage rates covered by existing Federal awards, but the scope of the award is, in respect of the industry, it is a supplier of public amusement or entertainment. Now, that maybe a matter that needs to go to evidence but it is the submission of the employer that the concept of the Apt Railway as a tourism facility is that it provides entertainment and amusement to the public who pay an entrance fee, not only get to ride upon the restored rack and pinion train but also to partake of other facilities that are provided along the railway line.

PN22

In relation to that they are the existing State awards. In the affidavit of Mr Neil they refer - there is reference made to the Emu Bay Railway Company. That was previously subject to the Emu Bay Railway Award that has been rescinded by the State Commission. I tender a copy of the notice rescinding that award. It is interesting, though, that it was rescinded at about the time that it was taken over by Tasrail, but the reason for providing a copy of that is to indicate that it is not unusual or that the State Commission cannot capably administer an award covering railway work. I have not got discovery of that but that award has been rescinded when it was taken over by Tasrail but I would suggest that that indicates that the State Commission is fully competent to deal with matters relating to the railway industry.

PN23

Further to that - that is the main part of the argument for the employer but there are relevant State awards covering employees who are employed by the railway.

PN24

THE DEPUTY PRESIDENT: Covering the employees in the interim award other than the railway-type employees, if I can call them that.

PN25

MR CAMERON: It does not cover specifically the drivers and we have to admit there is no provision for maintenance workers, unless of course the maintenance workers could be deemed to fall within the scope of the Metal and Engineering Award which has a huge definition which covers almost all sorts of things, anyone that tinkers with any mechanical apparatus could fall within the scope of that award. The drivers, yes, we would have to admit there is no award currently in Tasmania covering their occupation. The other aspect of our claim will go to parts - subsections (2) and (3) and further to advise the Commission that besides those existing awards the company is in negotiations with the employees for the making of an enterprise agreement under section 61A of the Industrial Relations Act (1984) of Tasmania.

PN26

The employees have recently been given an updated copy of that draft agreement and there have been prior discussions and talks with the employees about entering into a State registered enterprise agreement.

PN27

THE DEPUTY PRESIDENT: That is employees in all classifications, is it?

PN28

MR CAMERON: Covering all classifications, administration, restaurant, clerical and drivers and maintenance workers. Now, the other aspect is the whole operation is only partially operating at the moment in that only, I think, one third of the track is open. It is anticipated that the whole facility will open on about 26 December this year and it will become fully operational, just so that the Commission is aware of the circumstances at the moment. The company thus has not been in a mad rush to put in place any agreement because until such time as it is fully operational they will not have all staff - they will need extra drivers and other staff to cope with the - - -

PN29

THE DEPUTY PRESIDENT: So there will be more people employed after the 26th; is that what you are saying?

PN30

MR CAMERON: Well, we would imagine there would be more. Because we will be fully operational they expect to be a bigger drawcard.

PN31

THE DEPUTY PRESIDENT: Yes.

PN32

MR CAMERON: It is only about a third open at the moment. So the company has been working with the - I think it comes within the Department of Justice - it has a special department therein whereby a facilitator can prepare section 61 agreements - - -

PN33

THE DEPUTY PRESIDENT: This is the State version of the Employment Advocate, is it?

PN34

MR CAMERON: Well, to some extent.

PN35

THE DEPUTY PRESIDENT: Sort of.

PN36

MR CAMERON: We will work as a facilitator in the preparation of enterprise agreements to be registered.

PN37

THE DEPUTY PRESIDENT: So that is currently under way, is it?

PN38

MR CAMERON: That is currently under way and draft copies have been provided to employees. Prior to that there was a form of agreement that the parties had entered into in the hope of getting that registered but that is not keen to proceed.

PN39

THE DEPUTY PRESIDENT: So what currently applies? There is no agreement.

PN40

MR CAMERON: There is no agreement as such. It has not been approved and voted on nor registered with the Tasmanian Commission but there are relevant awards of the State Commission.

PN41

THE DEPUTY PRESIDENT: So the State awards are being applied, are they, at the moment?

PN42

MR CAMERON: Well, they are employed pursuant - - -

PN43

THE DEPUTY PRESIDENT: Where relevant.

PN44

MR CAMERON: Yes, they are relevant to the employees. In relation to the drivers, they are being paid, but they are award free - - -

PN45

THE DEPUTY PRESIDENT: I would hope so.

PN46

MR CAMERON: - - - I would argue both federally and at the state level at this stage.

PN47

THE DEPUTY PRESIDENT: Right.

PN48

MR CAMERON: That is our understanding that they would look to prefer a state system and will go into evidence in that if once you - - -

PN49

THE DEPUTY PRESIDENT: Well, that is actually something that the Commission has to determine - - -

PN50

MR CAMERON: Yes.

PN51

THE DEPUTY PRESIDENT: - - - and it is one of those exercises that is going to be a bit time consuming regrettably. Is that all you are going to put at this stage?

PN52

MR CAMERON: In relation just to advise the Commission that we will be seeking to - that the Commission cease dealing under section 111AAA, so that you can then go to the next step, we will of course looking to provide further evidence as to the reasons why, and in relation to, any argument that the union may put forward under the public interest test. We would be seeking to put forward the views of the employees and obviously the view of the employer as to its requirements in this matter.

PN53

THE DEPUTY PRESIDENT: All right, well perhaps before Mr Thomas responds I make my magic phone call and come back with another hat.

SHORT ADJOURNMENT [11.35am]

RESUMED [11.44am]

PN54

THE DEPUTY PRESIDENT: Thank you. All right I have a memo coming from the Acting President that I continue sitting apparently as a Federal Member to hear this and where it goes from there is anybody's guess. Seeing as we cannot agree amongst ourselves, I have some sympathy for the parties' view of these things. All right, well perhaps - did you want to pursue any further your application or can Mr Thomas now respond to what you have put?

PN55

MR CAMERON: Well, I suppose we can pursue it further, Deputy President, in relation to the wishes of the employer and the employee and if we need to call evidence from the employer, but our submission is that the employer doesn't wish to be responded to a federal award, we can bring that through witness evidence if the Commission so pleases.

PN56

THE DEPUTY PRESIDENT: I don't know how else we are going to do it, I guess.

PN57

MR CAMERON: The other aspect, Commissioner, is that I will hand up a number of documents. I think there is 15 signed by employees.

PN58

THE DEPUTY PRESIDENT: How many employees are there?

PN59

MR CAMERON: 32, I am instructed at the moment, Commissioner.

PN60

THE DEPUTY PRESIDENT: Are these all full-time people, or are they casual?

PN61

MR CAMERON: Part timers, full timers and there are - - -

PN62

THE DEPUTY PRESIDENT: So it is a mixed bag, sort of - - -

PN63

MR CAMERON: Yes, the full range of employees. I haven't got copies of all of these, Commissioner, they were only handed to me as we came in today. Mr Thomas has seen the content of the document, but they are signed by - there are 15 - - -

PN64

THE DEPUTY PRESIDENT: Right, do you not have copies of these?

PN65

MR THOMAS: No, I don't.

PN66

THE DEPUTY PRESIDENT: We will make copies available to you.

PN67

MR CAMERON: Not the signed ones, but there is a copy of the thing.

PN68

THE DEPUTY PRESIDENT: All right, I will mark all of those as one exhibit, C1.

EXHIBIT #C1 15 EMPLOYEE SIGNED DOCUMENTS

PN69

THE DEPUTY PRESIDENT: Okay.

PN70

MR CAMERON: The other document we have is - I withdraw that, I won't refer to that document, but there is another document signed by an employee which is the draft enterprise agreement, that one employee has already signed, I haven't got the full documentation, only the execution page. That employee is not present, but I understand that he has indicated his preference to be bound but he isn't one of the parties listed there and I have a separate document in that regard. In that regard then, Commissioner, we would seek to call Mr Roger Smith to provide evidence on behalf of the employer.

PN71

THE DEPUTY PRESIDENT: Is there a seat up there now. Be seated.

<MR GEORGE ROGER SMITH, SWORN [11.47am]

<EXAMINATION-IN-CHIEF BY MR CAMERON

PN72

MR CAMERON: Thank you, Mr Smith, for the benefit of the Commission can you state your full name and address please?---George Roger Smith, 21 Forest Road, Trevallyn, Launceston.

PN73

And your current occupation?---I'm the chairman and managing director of the Abt Wilderness Railway Company and the Abt Railway Holdings Pty Limited.

PN74

Okay, can you explain to the Commission the company structure that exists for the Abt Wilderness Railway, there are two companies involved?---Yes, there are two companies involved. We originally intended to run with the Abt Wilderness Railway, but when the Government did a lease for the railway for 20 years, they asked us to put it in a separate company, Abt Railway Holdings Pty Limited. I'm not absolutely sure why this was, but I think the Government actually had registered the other name, so we said, "Yes, fine," so we've never actually used Abt Wilderness Railway Pty Limited at this time. I won't say it's a shelf company but it was the first one we had. Actually when we were one of the 11 tenderers for the contract for running the railway it had to be a company that put forward so we actually formed that company as part of the original tender to operate the railway - - -

PN75

THE DEPUTY PRESIDENT: I see, so - - -?--- - - - with the Tasmanian Government.

PN76

So the employing company is Abt Railway Holdings is it?---Yes, that's right and it had to be that way because what happened was, when we came to do the - actually open and start trading we needed to using the Abt Railway Holdings Company for tax purposes and every other purpose. So it wasn't our choice of name, but I'm afraid it just had to go that way.

PN77

THE DEPUTY PRESIDENT: No, that is what you are stuck with. Okay, thank you.

**** MR GEORGE ROGER SMITH XN MR CAMERON

PN78

MR CAMERON: Deputy President, that may - - -?---And if I can just add, what you have got to remember is this is extraordinarily unusual, I have never had this situation before whereby it takes such a long time to rebuild. We've been nearly four years rebuilding this railway, and we've been bringing it into commission for over a year now in bits and pieces. Bits of line would be - or a section of line would be added on. It ran for a time even without any actual railway, so it's changed. It's like a chameleon really it started off as one thing and then it became something else and then it became the rack, and of course it still isn't finished.

PN79

THE DEPUTY PRESIDENT: Right?---So with each time it changed its purpose, it sort of shifted its, you know, it became a different sort of railway. So this made it very complicated and even more complicated because when you think the railway proper isn't open until the 26 December which is an extraordinary long period of lead up time. I've never had that before, probably a week with all my other projects, but this period of time is most unusual and it's caused dreadful complications in all manner of things, not just the staffing but, you know, just the sheer logistics of it, the training of the staff, probably a third of the staff we have now are, in fact, not properly employed. They're having to go through very lengthy training periods which it's necessary for when we get the extra locomotives and open extra outlets and the other - one, two, three - there's four more stations to go.

PN80

MR CAMERON: Deputy President, it may be an appropriate point to raise. The application before the Commission is not in relation to the employer of the employees. The application does not refer to the Abt Railway Holdings Pty Limited entity.

PN81

THE DEPUTY PRESIDENT: So you are saying it is served on the wrong employer?

PN82

MR CAMERON: Yes.

PN83

THE DEPUTY PRESIDENT: Is that what it - yes.

**** MR GEORGE ROGER SMITH XN MR CAMERON

PN84

MR CAMERON: And further, that as I understand it this application is in part settlement of a dispute before Commissioner Larkin and I understand that that - I haven't got the C number.

PN85

THE DEPUTY PRESIDENT: It is 1448.

PN86

MR CAMERON: Pardon?

PN87

THE DEPUTY PRESIDENT: 1448 of 2001.

PN88

MR CAMERON: 1448 and that wasn't this company either. The company has been served with documents by the union, notifying a dispute which is listed for hearing on the 10th of this month before Commissioner Jones, I understand, in Sydney.

PN89

THE DEPUTY PRESIDENT: What is that one for?

PN90

MR CAMERON: It is a dispute notification against Abt Railway Holdings Pty Limited. So at this stage there is no dispute with the employer.

PN91

THE DEPUTY PRESIDENT: So the dispute finding in 1448 was against Abt Wilderness Railway was it?

PN92

MR CAMERON: Yes, and there is no such entity.

PN93

THE DEPUTY PRESIDENT: I understand, right, okay.

PN94

MR CAMERON: And the employer as the evidence has just been given by Mr Smith is that the employer and the company involved is Abt Railway Holding Pty Limited.

**** MR GEORGE ROGER SMITH XN MR CAMERON

PN95

THE DEPUTY PRESIDENT: All right and what you are saying is that there is no dispute finding.

PN96

MR CAMERON: There is no dispute finding as yet against that company.

PN97

THE DEPUTY PRESIDENT: At this stage. All right. So what is happening on the 10th, are you opposing the dispute finding or?

PN98

MR CAMERON: We will - well, we are waiting to see what happened and also today as to forming instructions in that tomorrow as to what we notify Commissioner Jones in that regard.

PN99

THE DEPUTY PRESIDENT: Okay.

PN100

MR CAMERON: But that may have consequences here on a jurisdictional basis as to the application currently before the Commission as to whether it has any standing. Now, in the light that it may have, we can proceed with the evidence of Mr Smith, but I thought it an appropriate time to highlight that there is no dispute finding against the employer company. The company - I don't think there is a company as set out in the application. There is no company with that name and the dispute finding previously - - -

PN101

THE DEPUTY PRESIDENT: There is no company known as the Abt Wilderness Railway Limited, is that what you are putting?

PN102

MR CAMERON: No.

PN103

THE DEPUTY PRESIDENT: Okay, and is that the company against whom the dispute was found?

**** MR GEORGE ROGER SMITH XN MR CAMERON

PN104

MR CAMERON: No.

PN105

THE DEPUTY PRESIDENT: There was another company the dispute was found?

PN106

MR CAMERON: Well, there is no company with that name. There is Abt Wilderness Railways Pty Limited.

PN107

THE DEPUTY PRESIDENT: Is that the one against which the dispute was found?

PN108

MR CAMERON: That is against which the dispute was found?---But the real one - not the real one, but I mean the one we've had all along is Abt Railway Holdings.

PN109

THE DEPUTY PRESIDENT: Yes, that clarifies it for me anyway. Look, I think we will continue because I don't want to waste the time because it is an exercise we are going to have to go through at some time or other, in some form or other.

PN110

MR CAMERON: Thank you. Mr Smith, how many employees does Abt Railway Holdings Pty Limited currently employ?---32.

PN111

Thirty-two, and whereabouts are they employed?---Well, they're employed all over the place. They're employed, some are on the line, some are at Queenstown, some are at Launceston.

PN112

And any other towns?---No, the Abt Railway only works in those two areas really.

**** MR GEORGE ROGER SMITH XN MR CAMERON

PN113

Right, and when the railway - - -?---They will be in Strahan as well, but that -I consider Queenstown and the Abt Railway as sort of one continuous thing, I don't see it as two areas. West Coast and Launceston, shall we put it that way.

PN114

And besides the employees that you currently have, are there any other staff working on the railway that are not direct employees of the company, such as trainees or people with contractors?---Yes, I'm sorry, yes we have 4 or 5 - 4 these are trainee fire - fire persons or firemen or whatever they're called these days.

PN115

And who are they employed through?---People Source in Zeehan.

PN116

Do you have any contractors employed with the company?---Yes, yes we have a lot of contractors, individual contractors, yes.

PN117

So the 32 employees are those that are directly employed by Abt Railway Holdings?---There would probably be about 45 all up I guess, but some of them are part time subcontractors, some are full time subcontractors, other ones are independent companies with contractors. It is a bit hard - yes, they vary.

PN118

THE DEPUTY PRESIDENT: But, there is 32 potential employees - - -?---On our payroll, yes.

PN119

- - - that would be covered by this award if it were so approved?---Yes.

PN120

Yes.

PN121

MR CAMERON: With those employees, what employment arrangements does the company currently operate?---Well, they're paid weekly, is that what you mean?

**** MR GEORGE ROGER SMITH XN MR CAMERON

PN122

Yes, and under what terms and conditions, how have they been struck?---Right, well, what we did originally is we had Mr Jim Evans of the State Government Department when it was set up some years ago, he did an enterprise agreement for the Roman Bath Complex and he did a contract for that, I think it was about four years ago and we did that for a year and that was very successful. So it was repeated a year later for five years and I think it's got another two years to run. And then we used that as a basis for the next one that Jim Evans did for us which is the one that many of the employees have signed, and although we've changed it two or three times as the railway has changed its function or it's gone further or we've had extra employees that have done different jobs that weren't perhaps covered in the other award, so we've altered it to encompass them. And the latest one that we've got now, we think will satisfy the whole of the railway when it opens. Because, you've got to remember that only a third of it is running and probably a half of the railway stations. And of course a function is very difficult when you go part of the way and then return it's quite different from through trains which is a different situation. So to answer your question the basis of what we were trying to get through and Mr Seddon, our CEO has been to adapt an existing Tasmanian agreement which is very successful to meet the needs and satisfy where we can, the best interests of the employees for the railway. And I would emphasise that all of the staff that we have at the moment I consider to be excellent, every one of them, and I don't want to lose them. And the very latest agreement that we've done, I think is very generous, that's my view, but other people may have other views. The union may feel it's not good enough, but anyway my view is that it's a very generous award and that I would think it would bring lots of benefits to the staff that they perhaps otherwise wouldn't get under other jobs. So that agreement we're trying now to get through.

PN123

Okay, that draft agreement, which classifications does it cover, does it cover all the employees the Holdings - - -?---Yes, it covers all the employees. Well, you've got to remember that the vast majority, by far, by a ratio of four to one, or five or six to one, is either staff in the gift shop, reception, on the trains as stewards or a steward, there is only one train, and the coffee shop. We have at the moment three railway drivers and those railway drivers will be increased, hopefully, to four or five by Christmas time. There's one gentleman going through some more training now, but the vast majority of those people are either clerical or well, they're the background, the basis of the railway operation. We have at the moment only one train which has three staff on it and we have a maintenance engineer who runs the maintenance department and when we're operating two locomotives then we'll be increasing that, perhaps doubling it and the station staff will also increase by about a dozen, another dozen people at least.

**** MR GEORGE ROGER SMITH XN MR CAMERON

PN124

The Restaurant Keepers Award applies in Tasmania to coffee shops and other outlets, are you aware of that award?---Yes.

PN125

And you have got the three - or you have got staff working in a coffee shop, can you describe to the Commission what that facility is?---Yes, it's a small coffee shop with about 10 tables. It seats about 40 people. There's only light food, refreshments really. As it's name implies it's a coffee shop, it's open during the afternoons as well and we make sandwiches which are taken up on the train along with other supplies to the two stations along the way. One is Lynchford and the other one is Rinadeena and people have some food and an opportunity to have picnic meals there. I mean they're not proper meals because we've no power, for example, at Rinadeena, there's a generator so we have some difficulty providing anything other than teas and coffee, but it's just light refreshments.

PN126

So those - and those foods are prepared by the staff working in that coffee shop?---Yes, they do, they prepare the sandwiches and during the day they make up light snacks for the visitors who come through.

PN127

And so they do the normal functions of preparing food, waiting on tables?---Yes, it was never meant to be waiting on tables, but actually they're very good staff and they do look after the people and they go around and collect the dishes, but really people are meant to give their orders in and collect their orders, but we've sort of got a defacto waitress there this year. It is a very good coffee shop actually.

PN128

The other award that we have referred to is the Clerical and Administrative Employees Private Sector Award, how many people do you have employed doing clerical and administrative work for the company?---There'd be about six or seven of those.

PN129

And what sort of functions do they perform?---They perform bookkeeping, wage records, reception work, management, supervisors, and then we have sections of those that work on accreditation, clerical work. There's a lot - a tremendous lot of paperwork with all this.

**** MR GEORGE ROGER SMITH XN MR CAMERON

PN130

And where are those staff mainly located, are they in - - -?---Mainly in Launceston, yes.

PN131

And they are employed by Abt Railway Holdings Pty Limited?---Yes, that's right and then we have technical specialists, IT, computer work, electrical work, audio and that sort of work which is very specialised. Nowadays trains are fitted with all sorts of marvellous electronic equipment so we have to have backups for those as well.

PN132

Okay. The other award that was referred to as a retail trades award. You have employees engaged in retail work. What sort of retail outlets does the company have involved with the railway?---Well, we've got one gift shop in Queenstown which is the main one and the girls there or the ladies there, they sell tickets and also sell gifts to the passengers or the passing public.

PN133

Okay?---Very often people don't go on the trains but they come in and buy some souvenirs. At Lynchford and Rinadeena we have very small gift shops but we are hoping they may grow over a period of time and we also have at Lynchford, one of our stations, gold panning and one of the young ladies gives gold panning demonstrations of how gold panning takes place and up at Rinadeena we have an original mine which we have extended to the back of the railway station which people go down into and they can see collections of mineral stones and displaying one of the mines of a miner so we have various areas where they can sell goods or take people around a mine if need be and show them how they all work.

PN134

When the railway is fully operational, how many trains will be running?---We'll have two trains. One train will go from Queenstown to Strahan in the morning, or Regatta Point but it's still Strahan, and that will return in the afternoon.

**** MR GEORGE ROGER SMITH XN MR CAMERON

PN135

And the other train?---Yes, there will be another train leave from Strahan in the morning at approximately the same time, arrive in Queenstown about lunch time and in the afternoon about the same time as the other train returns it will pick up its coach passengers and go back to Strahan in the evening. We hope to have perhaps if we are lucky enough to get enough customers, the odd excursion on shorter parts of the journey at both ends but a lot depends on how many passengers and visitors we have so we are hoping to do perhaps one or two excursions a day if we are fortunate.

PN136

Okay. Now, how long is the actual railway track that is going to be used when it is finished?---Thirty four and a half kilometres.

PN137

How long is the trip expected to take?---Well, we don't know yet. I know that sounds silly but we haven't been able to run trains down the long rack, the one in 20, we don't know the speeds they'll go, we've got a new V13 diesel rack locomotive that has never ever been tried before except on one night so I can only say it will be approximately 3 hours to 3.15 minutes, depending on how long they stop for tea breaks on the way and comfort stops and lunch usually in one of the places.

PN138

For the benefit of the Commission can you explain, I suppose, the concept as to it's not a train, it just runs from A to B, when it's doing its run can you take the Commission through the sorts of facilities and what the train will do because to do three and a quarter hours to do 34 kilometres is probably not the fastest train in Australia. Can you explain to the Commission what the train will actually be doing?---Sure, yes. At the moment there are 11 commentaries for the whole route. I am just completing those now and they are about one or two pages each giving all the history of the railway, all the incredible events that have happened with the bush fires and floods and disasters and other points of great interest so that at various points all the way down the line the steward in the train, through a commentary system into each of the three carriages is able to advise people on the history and whatever of the train.

**** MR GEORGE ROGER SMITH XN MR CAMERON

PN139

Right?---Each of the stations that they come to, there will be a stop, either a short stop or perhaps a prolonged stop, maybe just short enough for a comfort stop for people so that they don't travel more than about 15 or 20 minutes without an opportunity to stop. Other places in the interior where it is very remote, we have actually got facilities for full blown stations for people to have hot food and drinks and maybe, of a night time, we're hoping to run a twilight train from Strahan to Double Barrel and maybe have a barbecue at night which will be great fun.

PN140

Okay?---And that's all included in the cost of the standard ticket so we think that would be successful. So intermingled between each of these journeys, for example the first one is Lynchford, a historical gold mining town where people are encouraged to carry out the activities of gold panning and all sorts of fascinating pictures and the old buildings. Lynchford, for example, was built exactly, precisely, as it was laid out in 1894, the correct dimensions of buildings so it is in fact a replica village of what was there.

PN141

Yes?---Rinadeena, which is at the top of the rack which is quite exciting and the only one of its kind in the southern hemisphere, that journey of course passes through incredible wilderness and there will be commentaries of all the trees and the various points of interest. At Rinadeena at the top of the rack again there is some old mines, as I think I mentioned before which are now filled with some pretty good displays of minerals and there are various walks at each of these little stations or old settlements where people can go for walks down the old tracks and paths for example, Meredith's track was quite a famous track. The first track on the coast.

PN142

Yes?---Further down again to Double Barrel which is at the bottom of the rack and roughly the middle of the whole railway, in that spot they're able to see all the remains that there are with ash pits and various other historical things. There is not very much left now because of the all the bush fires but there are some astonishing scenic positions where people can be at the station looking at the King River going by and unless people have actually been there, it's quite an awe-inspiring sight. We're also stopping at bridge 16 and 17 on the rack descending to Double Barrel where the railway is 213 feet above the river bed and King River

**** MR GEORGE ROGER SMITH XN MR CAMERON

Gorge, particularly when it's in full flood, and it usually is each day when the hydro release the power from the John Burgess Dam on Lake Burbury. It is a most incredible sight. So we will be stopping there for about eight or nine minutes and a commentary will be given as to the history of that area.

PN143

Yes?---Later on it passes down to another station area called Lower Landing Creek. This is of great historical relevance to the piners and today it's a stop where people can get off the train and take a bus up to the forestry lookout. There is a wonderful lookout the forestry have built by the Teepookana Plateau, again with great historical connections and that will also be quite a major class B station where people can have refreshments and toilet facilities.

PN144

Right?---Then finally carrying on from the Queenstown end towards Strahan the train passes over the iron bridge, that's repasses, goes over the King River again and makes its way along the flats beside the river to Lowana which is the freight depot for the huon pine logs that are pulled out of the only remaining area left in the world for huon pine so there is a story with that and great interest from people and then finally to Strahan itself where in fact the original station is being restored now and the marshalling yards and the old engine shed are being restored just as they were in 1894 and 1899.

PN145

Now, the train itself, you have indicated that it is going to do a number of stops. Will it do direct commuter work, just taking passengers from point A to point B?---No, I wouldn't imagine so. Nobody would want to go from one end to the other. It would be too slow.

PN146

Will it carry any freight at all?---Only our own freight like milk and things for the railway. Excuse me, yes, there is. Since signing our contract with the Government, they have requested that one of the locomotives - let me answer your question directly.

**** MR GEORGE ROGER SMITH XN MR CAMERON

PN147

Right?---The Abt railway passenger tourist trains, no, they won't but we will be putting on a special freight service for the Teepookana Plateau users which consist primarily of the beekeepers, the motor bike cyclists and the horse riders, Terry Hayes bus service and by far the biggest is the recovery of huon pine logs and other species from the Teepookana Plateau which are loaded on to two low loader wagons which the Government have brought and they have also provided a locomotive and we have amended our lease to include the railway system which wasn't originally in the lease and that only runs over a short section of the track. In fact it goes from Regatta Point through the depot at Lowana which is approximately half way to Lower Landing Creek which is the other depot, and Lower Landing Creek services the Teepookana Plateau and the forestry.

PN148

Okay?---Can I just finish, sorry, about this Andrew. If I just - while it's in my mind. There is another freight service, if you wish to call it that, in that the high rail vehicle which is classed as a train in railway terms is used to transport the two, three or four forestry loggers to Lower Landing Creek from Strahan or Regatta Point so they would occasionally take their own 40 gallon drums of fuel to drive the excavators and logging so if you are asking me if there is freight, yes, we do but it's freight for those users - - -

PN149

As part of the contract?---Yes.

PN150

And who provides the staff for the locomotive that the Government's providing?---Well, we would provide a driver and a fireman. Just those two and it's probably 7.15 in the morning until about 9.30 we will do a couple of shuttles to get them out of the way so the trains can run right through hopefully. That is the intention. You have got to remember all this is hypothetical at the moment but it is going pretty much according to plan.

PN151

To your knowledge is there any other railways operating on a similar basis in Australia?---No, there is no other rack railway and there is no other railway anything like the Abt. It is unique, properly unique in the true sense of the word.

**** MR GEORGE ROGER SMITH XN MR CAMERON

PN152

What Government involvement has there been in the implementation and initiation and getting it up to running stage?---Well, the initial involvement four years ago, exactly to the month I was approached by the State Government to see if I would rebuild the Abt railway because I'd very, very nearly got it going in 1983. If you look back through the press you will see that it was within a whisker, front page announcements of us getting it going but unfortunately there wasn't sufficient funds so it failed but the Government never forgot this and the previous Government to the one we had now asked if I would consider trying to rebuild it. The State Government then found they didn't have the 20 or $25 million that would be required to rebuild it so the Federal Government were approached by the previous Premier, that's Rundle, to Warwick Smith who at that time, Federal politician and Jocelyn Newman.

PN153

Right?---They were keen to see it promoted and they suggested that the State Government applied for its share of the Prime Minister's Centenary of Federation Fund money which is approximately $25 million and would be sufficient to build a railway. A committee was then set up of which I was one member called the Abt Railway Restoration Committee and we went through all the old calculations and various things that we had on the old railway and brought it up to date with safety standards and everything and the Tasmanian Government put forward, on 4 December, 1998 the application to the Federal Government for these funds which were subsequently in 1999 approved although only $20.45 million was approved because $5 million was held back for football stadiums and things like that.

PN154

Right?---So that was the background of the Federal involvement. More recently as costs escalated and time went by and we've improved the railway because it looked like being such a winner eventually, the State Government then put in first $2.5 million in the previous financial year and $2.5 million in this financial year and I would imagine probably another million or so in the next financial year or this current one. So that is how that development was. We were obliged in our contract to invest $2.7 million and when we got to $5 million we said to the Government that the things that they required us to do with freight trains were really not part of our original mandate and so they brought off us all the additional infrastructure that they had asked us to put in leaving us with about $3.3 million worth of involvement. So that's the history of the finance and the two Government involvements.

**** MR GEORGE ROGER SMITH XN MR CAMERON

PN155

And is that their only involvement at this stage?---How do you mean?

PN156

Well, were they - in terms of running the railway you have a lease over the system?---Yes, for 20 years.

PN157

Now, will there be other parties providing other services and facilities, other employers involved in the railway or is the company providing every facility and service?---As far as I can think I would think that's right.

PN158

There will not be any other tenants providing refreshments or other companies or businesses?---No, not at the moment, no. I can't think of any anyway.

PN159

When the - - -?---I am not saying there won't be in the future because the Queenstown station is big enough to sublease to other people but at this moment in time we don't have that situation.

PN160

When the whole system is fully operational - you have got 32 staff at the moment - how many staff do you envisage at that time?---Well, you have got to remember that quite a number of them are part time because it's a long day in summer time and of course in winter time it goes extraordinarily quiet so all the people that are taken on understand that it is strictly a part-time job. When we have the work it is there for them and when it isn't well then the hours will have to be cut down unavoidably. I mean it is just one of those things. I would hope that we would probably be around 40 to 50 employees but I mean, we haven't even built the railway yet so I really don't know.

PN161

Okay?---You see, and the reason I am saying that and I am not sort of hedging it, is simply because I don't know how successful it is going to be. If it's a great success then obviously we will have more people because we will be able to initiate more enterprise schemes with it and various things like that.

**** MR GEORGE ROGER SMITH XN MR CAMERON

PN162

Right?---It's very early days at the moment.

PN163

I understand that. Now, in relation to those staff, what percentage of them will be involved in retailing?---In retailing?

PN164

Yes?---Can I give you a rough figure? About a third I would say.

PN165

Okay. And in relation to cafe and restaurant?---About another third.

PN166

Administration?---Well, I would have said that clerical, oh I see - we might have to cut that to a quarter. If you are going to subdivide it again I would say a quarter on clerical about, a quarter on gift shops and a quarter on the feeding but you see they're multi-skilled. People just don't do one job. I mean they wouldn't. It would be impossible to operate if it was completely one job. There is some cross-over between selling tickets and reception and selling gifts and everybody tries to do different jobs as required if only for the rosters so it varies.

PN167

And what about drivers? How many drivers and other operational staff?---Well, I would say the whole of that side would probably make up another quarter and that's probably pretty right too. It's not very far out side that. I mean it might vary, you see. In summer time you might have a lot more clerical and shop types and in winter you would probably keep all your maintenance crew so that would go up in winter time and probably you would have less other staff. So you have got to remember that it varies. Maybe not numerically, but it would certainly change in hours. In other words there would be more work for the mechanical side and those, even the drivers do a certain amount of mechanical work themselves.

PN168

Are you involved in other businesses in Tasmania?---Yes.

PN169

Are any of those businesses subject to a Federal award that you are aware of?---No, they're all State.

**** MR GEORGE ROGER SMITH XN MR CAMERON

PN170

And how long have you been in business in Tasmania?---37 years.

PN171

You have used the Tasmanian industrial system over that period?---Yes.

PN172

Have you had any problems with the way that the system has dealt with the industrial relations of your businesses?---No, no, no it's been excellent.

PN173

Do you see any benefit in going to a Federal system?---No, none at all.

PN174

So on behalf of the company, what is the company's view on becoming bound by a Federal award, what is the company's view?---I think it's very inappropriate and I think we have these awards in Tasmania. Enough is taken away from poor old Tasmania it's about time we kept something for ourselves. There's precious little else left to us, even our young people leave.

PN175

No further questions, thank you, Deputy President.

PN176

THE DEPUTY PRESIDENT: Mr Thomas?

<CROSS-EXAMINATION BY MR THOMAS [12.27pm]

PN177

MR THOMAS: Yes, thank you. The draft enterprise agreement that you are circulating at the moment - - -?---Yes.

PN178

- - - are you saying that that covers all employees, or the vast majority?---Well, we're hoping it covers them all.

PN179

Covers them all?---It's appropriate that it does, bearing in mind, of course, that this is primarily a tourist attraction.

**** MR GEORGE ROGER SMITH XXN MR THOMAS

PN180

Yes, well - - -?---It is not a commuter railway, it is not a freight railway.

PN181

Yes, well, we will come to what it is and what it isn't?---Sure.

PN182

So I note that one of the persons to be covered by this agreement is Mr Seddon, what is his title in the company?---He's the chief executive officer, he is the manager if you like.

PN183

And the draft that is circulating at the moment has that got the classification of chief executive in it?---No, but he doesn't just do chief executive he does all the jobs in there. He serves behind the counter, he helps in other areas.

PN184

Well, for the purposes of the enterprise agreement what would his classification be in the enterprise agreement?---Railway worker, pure and simple, railway worker.

PN185

In terms of the awards of the Tasmania State Commission what award would cover Mr Seddon?---I would imagine clerical.

PN186

The managing director is covered by the Clerical Award?---I beg your pardon, sir, would you repeat that?

PN187

I just asked you - - -?---Did you say the managing director then?

PN188

That is what you said?---Mr Seddon is not a director.

PN189

Well, what is he, the general manager?---Well, lets - a big difference.

**** MR GEORGE ROGER SMITH XXN MR THOMAS

PN190

All right. So it is your view - - -?---The managing director is not covered by any award, right, the manager is covered by the clerical award I would imagine because most of his work is clerical attached to accreditation and matters like that.

PN191

Yes, I will ask the questions, Mr Smith, you just answer them?---I'm answering them, sir.

PN192

So Mr Seddon would be covered by, as general manager, so we will get his title correct, by the Clerical and Administrative State Award?---I would imagine so, yes.

PN193

Okay. We have just expanded its coverage. The restaurant keepers, you have a number of people work there, a number of people doing clerical, some doing retail. You mentioned in response to a question from Mr Cameron that the persons are multi-skilled. Does that mean that a person could be working in the restaurant one day, in the gift shop the next day, on the train the day after, or, indeed, doing all three positions in the one day?---In certain cases, yes.

PN194

And if that is the case when they are doing that, how do you deal with the appropriate award covering them at the time?---Well, their main work would be classed as their main award. That is to say if they were in reception then they would recept. If they were in the cafe they would be cafe people, and they have their positions and they go there. People help where they can.

PN195

I understand that - - -?---This is not a BHP, this is a - - -

PN196

But on that basis are you saying that people, depending upon the work they're performing, could be covered by two, three, maybe four awards in the one day?---It would be unlikely, but certainly one or two of them might fall into that category, yes.

**** MR GEORGE ROGER SMITH XXN MR THOMAS

PN197

Okay. Now you - - -?---As I say people help out where they can. We don't have lines of demarcation at this stage.

PN198

You also made reference to technical work, audio work, electrical work - - -?---Well somebody has to, for example, service the sound on the - in the carriages. Somebody has to make sure that that works and is functioning. Somebody has to make sure that the internet functions and that the computers are working correctly, and as you are well aware these days, there are a tremendous number of electronic devices which businesses use in their daily function, and therefore these need specialists who are required to do work on them.

PN199

Of the State awards that have been tendered, can you tell me which award covers that type of work?---No, I'm not able to tell you that.

PN200

Okay. You went through a running commentary on what happens on a typical daily trip on the Abt train. In doing it you made reference to the fact that they will, what - people make public announcements whilst on that trip?---Yes, there's a commentary by the steward on the train.

PN201

Yes, and are you aware whether there are other trains in this country where announcements are made about arriving at platforms or pointing out local scenic attractions, are you aware?---Of what?

PN202

Of other trains that do that in this country?---Not particularly, but I assume there are. I don't take a great deal of interest in the competition. I'm only concerned with ours.

PN203

Well - - -?---I imagine it's frequent because every bus driver does it when he drives his bus, so I assume to make the journey more interesting and more worthwhile for the visitor that every effort will be made by everybody on the railway to assist passengers with all their questions which are manifold.

**** MR GEORGE ROGER SMITH XXN MR THOMAS

PN204

So is it your evidence that your knowledge of railways elsewhere in Australia is not all that great?---Never been on one - oh yes once, sorry, one.

PN205

That being the case how do you find yourself in a position to argue that the Abt Railway is unique and there is no similar operation anywhere else in the country?---Because I'm an avid reader.

PN206

You are a - sorry average or avid?---Avid. A-v-i-d. Avid, that means - - -

PN207

So you draw that - - -?---That means a person who reads.

PN208

Yes, I know what an avid reader is?---Good, I'm pleased about that.

PN209

So your experience in based purely on what you have read?---And seen.

PN210

You just mentioned a minute ago you only ever one more train?---I watch television, sir.

PN211

You watch television?---You asked me did I go on trains. I said, no, only one but I watch television.

PN212

And television has produced for you broad experience of the operations of railways in Australia?---No, it hasn't but it has given me a limited insight into the things that are relevant to my business.

PN213

The rack railway, that is, is it not, a different technical way of operating or running a train by comparison with locomotive engine pulling freight between Melbourne and Sydney?---Yes.

**** MR GEORGE ROGER SMITH XXN MR THOMAS

PN214

But in essence be it a passenger train or freight train between Melbourne and Sydney or the rack railway, one of its major functions is to move persons or freight, and in this case it looks like you are going to move freight too, from one point to another?---Correct.

PN215

In that sense there is no great difference between that and any other railway?---Yes, because we are purely tourist showing the people extraordinary wilderness scenery which is quite different from taking them on a journey between two principal towns or cities from which they will either fly back or travel back in a different way or to work or anything like that. No, it is quite different and let's be clear about that.

PN216

You would agree, would you not, that other railways in this country provide tourist operations?---They do indeed, sir.

PN217

Now, you have mentioned that you have experience in the Tasmanian industrial system but no experience in the Federal system?---That's right.

PN218

You drew the conclusion from that in response to a question that it would be inappropriate to enter into the Federal award system?---Yes, that's correct.

PN219

Why?---Because there are adequate awards for the vast majority of the employees that we now have and it's already covered by the Tasmanian system in which case why would it go to the Federal - I mean there is no reasoning for it to particularly apart from engine drivers and they are quite easily to be able to be included in this agreement. It's quite simple. At the end of the day you have got to remember that almost as much hosts to the people on the railway answering numerous questions every time it's in the stations, they're almost like tour guides in themselves. You certainly don't get that on freight trains and that sort of thing so they fulfil a different role.

PN220

Now, if you didn't run the railway I take it that there wouldn't be a restaurant or a gift shop or any of those facilities?---Why do you take that?

**** MR GEORGE ROGER SMITH XXN MR THOMAS

PN221

Well, because if you didn't run a railway you would have no reason to operate those shops, would you?---Why not? They're perfectly good shops.

PN222

Right. So if the railway part of the operation closed down tomorrow your view is those shops would continue to operate?---Yes, why not, in summertime, most definitely.

PN223

Only in summertime?---Yes, because there is nobody there in winter.

PN224

Would they continue to sell products to do with the railway?---Yes, but they don't sell an awful lot to do with the railway now. They're nearly all Tasmanian craft gifts and similar so really the railway involvement is very small indeed. A few postcards, maybe an odd t-shirt with the Abt railway on it but other than that practically nothing.

PN225

Now, isn't the Abt wilderness railway operation an integrated operation around the running of a train for tourist purposes, whatever purpose it wants to be, between Queenstown and ultimately Strahan?---Yes.

PN226

Yes, so isn't the railway operational part of it the focal point?---The what?

PN227

The focal point. The key part of your operation is the running of that train from Queenstown to Strahan?---Yes, that's correct.

PN228

Okay. Now, you mentioned earlier that we have persons to whom the restaurant keepers, clerical and administration award and the retail trades award are applicable, yes. Are they currently paid according to those awards?---As far as I know.

**** MR GEORGE ROGER SMITH XXN MR THOMAS

PN229

MR CAMERON: Commissioner, I would have to take objection to the question. I can see where this is going. Mr Thomas is looking for perhaps a breach that is not with the matter before this Commission as it is about - the evidence is whether the awards have application. If he wants to pursue that he should perhaps lodge a claim in the State Commission.

PN230

THE DEPUTY PRESIDENT: Well, I think it is a fair enough question as to the issue that we are looking at. I understood that the - I think from one of your own questions - that generally speaking the awards apply.

PN231

MR CAMERON: Yes.

PN232

THE DEPUTY PRESIDENT: So the answer is already there.

PN233

MR CAMERON: Yes, but not as to - the question is - - -

PN234

THE DEPUTY PRESIDENT: The specifics.

PN235

MR CAMERON: - - - specific as to whether a particular section or clause of that award is being complied with. That is not a matter for this jurisdiction or this Tribunal.

PN236

THE DEPUTY PRESIDENT: Well, it may also be unfair to Mr Smith. I presume that he doesn't sit down and do the pay?---But I don't mind answering the question. Yes, most of them are paid over award and very much so, so there is an argument, I understand, with the union about double-time on Sundays and Saturdays but our understanding of our agreement with our staff was that the higher rates compensated for that and we haven't managed to get it registered yet and we are still trying to do that, anyway.

**** MR GEORGE ROGER SMITH XXN MR THOMAS

PN237

Perhaps the less said about that at the moment the better?---Okay. But I am being quite open - - -

PN238

Yes, I appreciate that - - -?---and forthright and I don't want you to think I'm hiding behind anybody else.

PN239

No, there are other issues that could develop from that but I don't think Mr Thomas is pursuing that particular issue?---Sure. I am happy to answer where I can.

PN240

MR THOMAS: The issue, your Honour, really came down to the applicability of awards?---But the answer is yes. I think we are paying awards and well beyond in some cases. Maybe not to your thinking but certainly we are, yes.

PN241

That is your understanding?---That's my opinion, yes.

PN242

That is your opinion, yes. Well, we will leave it as an opinion - - -?---Thank you, Mr Thomas.

PN243

- - - for what it is worth. When you were first established you mentioned earlier in your evidence-in-chief that you had some form of agreement but you didn't pursue it?---Some form?

PN244

Mm?---We had an agreement which was adapted to suit the railway that we had. We had the little railway embryo. We had to start somewhere and we were helped in this by Jim Evans who produced a document that was along the lines that the Government would normally proceed with an enterprise agreement as I understand it.

PN245

That - - -?---But it was wrong. We had to change it two or three times because as the railway became a railway, because it wasn't really a railway to start off with - - -

**** MR GEORGE ROGER SMITH XXN MR THOMAS

PN246

THE DEPUTY PRESIDENT: So you are saying it has developed as the railway has developed?---Yes.

PN247

It has changed circumstances?---It has been very difficult. It has changed. I mean everything has changed and it will change again, not so much in terms of what it is but certainly in the size and the full operation and we had to start somewhere and we only had a few people to start with and it has gradually grown from there and we have gone on accordingly and now, in the last few weeks, we have been trying to get the agreement ready for when the railway proper starts. You have got to understand the railway isn't more than really a little test bed at the moment and we have lost something like three-quarters of a million dollars already just starting up and training everybody and running it in winter when there was two people on it and it cost $1000 to take it to the top of the rack. We had to do that over and over and over again so that all the training, all the safety training, all the procedures, all the first aid, there's an enormous amount of what we have been doing, it has certainly not been done for profit, Mr Thomas, it has been done for the benefit of the employees and their training to a large extent. We did not really get going in any case until February and March of this year. The rack wasn't opened until March. It was opened but we couldn't operate it because the locomotive wouldn't go.

PN248

MR THOMAS: But you are operating as a commercial venture?---We are now, yes. This year we have been, or part of this year.

PN249

The material that was tendered as exhibit C1, are you aware of the signatories to these letters? The persons who have signed them?---Yes.

PN250

Can I ask you a couple of questions about that?---Yes.

PN251

What proportion of the employees who have signed these letters would be based in Launceston?---A majority probably.

**** MR GEORGE ROGER SMITH XXN MR THOMAS

PN252

The majority?---Mm hm. No, not the majority of them. Good grief, no. Less than the majority.

PN253

Less than the majority?---But if you would like to rephrase that. I thought you said, "What proportion of the Launceston people signed them?"

PN254

No, that is not - No, I asked - - -?---So that wasn't your question.

PN255

- - - "What proportion of the letters were signed by persons based in Launceston?" was my question?---No.

PN256

Okay. That is about it for me, your Honour.

PN257

THE DEPUTY PRESIDENT: Have you any re-examination?

<RE-EXAMINATION BY MR CAMERON [12.45pm]

PN258

MR CAMERON: Just a quick question thank you, Deputy President. Mr Smith, in relation to a question from Mr Thomas about the servicing of the sound equipment and things, do you currently use your employees or contractors to do repairs to radio equipment and computers?---Well, the contractors do but from time to time there will have to be skilled staff in our employment who will have to do this. I mean, it was only a few days ago we actually got the commentary system working for the first time properly so I don't know about an award. We have hardly got the original stuff put in place yet so we haven't - you have got to remember this is extremely early days. The thing is still being built at the moment and one must keep that in their mind because most of the work I am talking about has been construction or implementation or start up or set up and this applies to IT just as much as it applies to the locomotive people or the training of the staff in the shops.

**** MR GEORGE ROGER SMITH RXN MR CAMERON

PN259

Okay. And in relation to future operations, do you see yourself only employing people to do this work or will you use contractors for specialised work?---Some specialised work will have to be done by contractors but it would be nice to have somebody on the site who can do the job and be there on call because you see we are a seven day operation and many of the contractors go home or fishing at weekends so we want to have as little down time as we can over the important things and commentaries are very important I think.

PN260

Thank you, Mr Smith. Deputy President, I haven't provided a copy as yet but in relation to those questions that Mr Thomas raised there is an award of the Tasmanian Commission covering the sound equipment people and that is the electrical engineers award which is a State award and I can provide a copy of the relevant sections of that. That is again covered by regulation 14 of the Act and the schedule 2 of the Act which refers to radio electronics equipment service people. It also talks about radio mechanics and people doing those occupations and they come within then the electrical engineers award.

PN261

THE DEPUTY PRESIDENT: So what you are generally saying is there is coverage for everybody except perhaps the train drivers?

PN262

MR CAMERON: Yes.

PN263

THE DEPUTY PRESIDENT: What other things?

PN264

MR CAMERON: Well, at the moment there is no employed fireman by the company.

PN265

THE DEPUTY PRESIDENT: Isn't there? Okay.

PN266

MR CAMERON: I have no further questions for Mr Smith.

**** MR GEORGE ROGER SMITH RXN MR CAMERON

PN267

THE DEPUTY PRESIDENT: Thanks, Mr Smith, for your evidence, you can stand down.

<THE WITNESS WITHDREW [12.47pm]

PN268

THE DEPUTY PRESIDENT: What I am proposing to do is have a word with the two advocates to see where we can go from this and my concern is about what is happening next Monday, is it, with the dispute finding to see whether we can channel that some other way. Seeing as Mr Smith was here I thought it was worth hearing his evidence. It was of assistance to me and I am sure it was of assistance to Mr Thomas.

PN269

MR THOMAS: Yes, I was going to raise the further issue of evidence, your Honour.

PN270

THE DEPUTY PRESIDENT: Yes, have you got some people here you wanted to - - -

PN271

MR THOMAS: What I have, your Honour, is I have got Mr Neal - this presumes that they have finished their evidence.

PN272

MR CAMERON: Well, Deputy President, we have two employees present who are willing to express their views as to the Federal award.

PN273

THE DEPUTY PRESIDENT: You see I take the view that if I am going to hear from employees I am going to hear from all of them.

PN274

MR CAMERON: Yes, okay. Well, it was just that they were two and I mean I am not sure where Mr Thomas' employers are, whether they have come up from Queenstown or from Launceston.

PN275

MR THOMAS: Well, they have.

PN276

THE DEPUTY PRESIDENT: That is why I wanted to talk to you two rather than having this argy bargy on the record. If I can get you in there and we can start talking some facts. Okay. Let us just adjourn for a few minutes.

SHORT ADJOURNMENT [12.49pm]

RESUMED [1.15pm]

PN277

THE DEPUTY PRESIDENT: Thank you for your patience. I have had some discussions with the two advocates and what I am proposing to do is to adjourn the proceedings today. Mr Thomas is going to present an affidavit or witness statement from Mr Neil which we will accept and mark exhibit T1

EXHIBIT #T1 STATEMENT FROM MR NEIL

PN278

THE DEPUTY PRESIDENT: Mr Cameron, as I understand it, is reserving his rights on the content of that document to cross-examine perhaps at a future date. I have been alerted to a dispute finding hearing that is proceeding either the 10th or 19 December. We are not sure about that. What I propose to do in respect to that is to speak to Commissioner Jones to see whether we can work out a practical, logistical way of dealing with all these issues rather than have two lots of proceedings going at once.

PN279

These proceedings will be adjourned on the basis that there is a jurisdictional issue that cannot be ignored but can I say that if the 111AAA application continues, as it well may, I will be hearing the views of all of the employers. Now, there is a logistical issue in that also which we will address if and when the time comes so on that basis I will adjourn these proceedings sine die and both parties will be informed as to my hopefully positive discussions with Commissioner Jones and then we will determine how and when and where we proceed with this application. On that basis this matter is adjourned and the Commission resumes in five minutes.

ADJOURNED INDEFINITELY [1.17pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #C1 15 EMPLOYEE SIGNED DOCUMENTS PN69
MR GEORGE ROGER SMITH, SWORN PN72
EXAMINATION-IN-CHIEF BY MR CAMERON PN72
CROSS-EXAMINATION BY MR THOMAS PN177
RE-EXAMINATION BY MR CAMERON PN258
WITNESS WITHDREW PN268
EXHIBIT #T1 STATEMENT FROM MR NEIL PN278