AG2001/2272, Transcript of Proceedings [2001] AIRCTrans 873 (14 May 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

AG2001/2272

AGREEMENT WITH ORGANISATIONS
OF EMPLOYEES (DIVISION2)

Application under section 170LJ of the Act
by Transport Workers' Union of Australia
re Budget Removals and Storage Enterprise
Bargaining Agreement March 2001 to March 2004

PERTH

9.34 AM, THURSDAY 26 APRIL 2001

PN1

MR G.W. FERGUSON: I represent the Transport Workers of Australia in this matter.

PN2

MR E. REA: I represent the respondents in this matter.

PN3

THE SENIOR DEPUTY PRESIDENT: I'm sorry for the delay. There seems to have been some sort of administrative glitch this morning. Mr Ferguson?

PN4

MR FERGUSON: Yes, thank you, Senior Deputy President. This is an application by the Transport Workers Union of Australia for the certification of a certified agreement in accordance with section 170LJ, being an agreement with an organisation of employees. I can advise the Commission that the union has at least one member employed in a single business and that the agreement has been approved by a valid majority of employees, the subject of the agreement. This agreement covers six employees and the employer and the Transport Workers took reasonable steps to ensure that at least 14 days before approval was given, all persons either have or had ready access to the agreement in writing.

PN5

I can also advise the Commission that the vote to accept the certified agreement was taken initially on March 22 2001. I have advised your associate, Senior Deputy President, that following the application that was made on April 12, there was an amendment in the work site involving two issues and those amendments were carried by a vote of the employees bound by the agreement and it was on April 19, just recently. Those amendments go to page 4 and page 9 of the agreement and I have provided Madam Associate with the replacement pages.

PN6

THE SENIOR DEPUTY PRESIDENT: Yes, I have that.

PN7

MR FERGUSON: Just so that there can be no confusion. The original page 4 at clause 12.1 describes that the rate of accrual for annual leave would be at 2.9, 2, 3 hours per week. That has now been amended to reflect a rate of 0.07692 minutes per normal working hour.

PN8

THE SENIOR DEPUTY PRESIDENT: Now, Mr Ferguson, my mental arithmetic is a little slow. How does that relate to the hourly rate?

PN9

MR FERGUSON: I have not been forwarded an explanation, Commissioner, I might ask my good friend to explain that to your good self.

PN10

THE SENIOR DEPUTY PRESIDENT: Yes.

PN11

MR FERGUSON: I have no instruction on that other than that there has been a replacement. The other matter that I advise you on in replacement is on page 9, the last paragraph, "Meal allowance: $20 shall be paid to any removalist driver." That has been amended to now read an amount of $10 in the replacement page and I would ask my good friend to explain those circumstances to the Commission.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes. Now, how has this gone about? There was another vote taken on what date?

PN13

MR FERGUSON: The other vote; the amendment vote was taken April the 19th, which was after the application was made on April the 12th.

PN14

THE SENIOR DEPUTY PRESIDENT: Yes. I wonder what that does to it.

PN15

MR FERGUSON: There has been no further statutory declarations filed on behalf of that amendment, and if the Commission seeks such a declaration to be made, we would certainly comply with that instruction.

PN16

THE SENIOR DEPUTY PRESIDENT: Yes.

PN17

MR FERGUSON: But notwithstanding my comments to date, we would say that the agreement is on all fours with the Act. It provides wage increases over the life of the agreement totalling 9 per cent. There is provisions for sick leave to be paid out provided that there is a bank, a residual bank of eight sick days kept to the employee's credit. There is a dispute settling procedure at clause 29 and there have been changes to the overtime rate that will operate on public holidays, Saturdays and Sundays and the parties have agreed to a flat rate of pay when required to work on those days.

PN18

THE SENIOR DEPUTY PRESIDENT: Is that a change upwards or downwards to the overtime rate?

PN19

MR FERGUSON: Overall, Commissioner, we would say it is to the benefit of the employees. It allows the employer to work his business at times when he would - may be normally restricted to do so. We see it's an efficiency to the business and it also provides an extra opportunity for our members to gain more hours of employment in a week, in a very tight marketplace. So the purpose of that is to assist the employer, operate his business with greater flexibility whilst at the same time providing good rates of pay to our members, notwithstanding that we've been able to arrange sick leave to be paid out and substantial wage increases over 3 per cent. All in all, on balance it's judged that that is an improvement from where we've been.

PN20

I would advise the Commission, for the purposes of the no disadvantage test, that it meets the requirements and that there is no disadvantage in this agreement and unless the Commission has any further questions of the Transport Workers Union, I would ask that the agreement be certified. Thank you, Senior Deputy President.

PN21

THE SENIOR DEPUTY PRESIDENT: In the statutory declaration filed on behalf of the Transport Workers Union - - -

PN22

MR FERGUSON: Yes, by Mr John Allan, should be filed.

PN23

THE SENIOR DEPUTY PRESIDENT: Yes. In talking about the no disadvantage test at paragraph 7 of the agreement and particularly 7.3 where the pro forma says, "Please identify by referring to specific clauses, any reductions and so on", he refers to clause 10.2, 10.5, 13.2 and clause 30, I was just wondering if you could explain to me, merely so that I understand it, what the effect of those clauses is by way of a reduction in terms. 10.2, for instance, is a 30-minute lunch break in the agreement.

PN24

MR FERGUSON: To be taken in the form of 2 15 breaks if mutually agreed.

PN25

THE SENIOR DEPUTY PRESIDENT: Yes.

PN26

MR FERGUSON: Yes. I have no instruction from my Federal office in relationship to those changes. My instruction is that the agreement is to the betterment of our members and that is the only instruction I have received. I'd also advise the Commission that the notice of listing this matter came in very late on April 24 and I was not notified basically till 8.45 this morning to appear. It does not have a lot of time for instructions, Senior Deputy President.

PN27

THE SENIOR DEPUTY PRESIDENT: It makes it a bit hard for you. Yes, I listed it quickly because I thought the parties wanted it to be dealt with.

PN28

MR FERGUSON: I think there was a need to have it done quickly, but in times of preparation, that was a little bit short for my end of the - - -

PN29

THE SENIOR DEPUTY PRESIDENT: No, I understand.

PN30

MR FERGUSON: But if the Commission does seek answers to those specific points that Mr Allan has made in the Transport Workers Affidavit, I can give an undertaking, Senior Deputy President, that we can provide written answers to you throughout the course of today, if that is a requirement.

PN31

THE SENIOR DEPUTY PRESIDENT: I think that would be desirable, unless Mr Rea can perhaps, assists?

PN32

MR FERGUSON: Yes. He may well be better placed to do so than I am, Senior Deputy President.

PN33

THE SENIOR DEPUTY PRESIDENT: Mr Rea?

PN34

MR REA: Thank you, sir. Look, largely of course, we concur with the union in this matter and wish the agreement registering according to the law. In regard to 10.2, and I've had some difficulty with last minute instructions as well, sir, but in regards to the lunch break, I understand that that actually hasn't happened as yet, but the idea of taking two 15-minute lunch breaks, it's just simply if it's mutually agreed. Mr Maynard, the person instructing me from Budget, tells me that this initiative came from the workers themselves, that frequently they would say that they're bored with sitting around for half an hour and they'd appreciate the shorter breaks, at least in some circumstances. So it's just intended for flexibility, sir.

PN35

THE SENIOR DEPUTY PRESIDENT: Thank you. I don't have the award in front of me and perhaps that's my fault, I should have made arrangements to get it, but do I take it that currently the award provides for a lunch break of 30 minutes and this allows 15 minutes by mutual agreement?

PN36

MR REA: I believe so, sir, yes. And this then just allows for the lunch break that's provided for in the award of 30 minutes to be taken in two 15-minute lots.

PN37

THE SENIOR DEPUTY PRESIDENT: Yes. I understand. And then 10.5. I don't quite understand that clause either, but that's referred to in the stat dec. "Payment for meal breaks not taken will not be recognised."

PN38

MR REA: I think that that may well be perhaps inelegant drafting. If you could excuse me a moment, sir, but I would believe that I could understand what it means. Okay. Look, apparently again this was as a safety issue, sir, and I beg your pardon for having to take aside instructions.

PN39

THE SENIOR DEPUTY PRESIDENT: No, that's okay.

PN40

MR REA: But what was happening is that for safety reasons, the employer wishes the meal breaks to be taken so that this has been put in just merely as an incentive for the employee to take it, because if they don't take it when they're on country trips, then payment for the meal itself will not be made.

PN41

THE SENIOR DEPUTY PRESIDENT: I understand. Yes.

PN42

MR REA: So it's effectively to try and force the employee to take breaks as they ought.

PN43

MR FERGUSON: And I would add; that's probably in line with the union's push to ensure that fatigue management policies are adhered to, and I would say that would be the union's incentive behind such a move, Senior Deputy President.

PN44

THE SENIOR DEPUTY PRESIDENT: I understand, thank you. The next one is clause 13.2 that seems to have some effect on the starting and finishing times of the spread of hours, and that can apparently be looked at as a reduction in terms and conditions. Can you explain how that can be so viewed?

PN45

MR REA: I'm afraid I can't, sir, other than that the whole agreement is intended to provide greater flexibility for an industry that has difficulty in operating within the confines of the existing award and that there's going to be some areas which may appear to be a diminution but would be picked up in the fact that there's a pay increase to arise out of it.

PN46

THE SENIOR DEPUTY PRESIDENT: I understand that. I was just trying to understand how it's said that that could be a diminution.

PN47

MR REA: I'm sorry?

PN48

THE SENIOR DEPUTY PRESIDENT: I was just trying to understand how it could be said, as is said in the stat dec, that clause 13.2 is to some extent a reduction in terms and conditions.

PN49

MR FERGUSON: Commissioner, one would think it was a reduction on the employer's side, rather than the employee's, though one would have to say it does not give the employees a uniform starting time throughout the week. My understanding of this industry is that jobs are not always on time as the employer would like in certain situations, because drivers would have to rendezvous and be at certain premises at certain times. As an efficiency, the employer just seeking to be able to start people between 6 am and 10 am on any day, I would seek that as a flexibility to the employer and maybe a slight disadvantage to the employee only inasmuch as he would not have a regular starting time that he could rely on. But I don't see that as a major disadvantage.

PN50

MR REA: And previously, sir, my understanding is that 7.15 was the starting time. The flexibility is to allow people to be back by the appropriate times and then it makes the runs a lot safer.

PN51

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. I understand that one too, which then leaves me with the final clause. In Mr Allan's statutory declaration, clause 30 is put in answer to paragraph 7.3 and 7.4. On the one hand it's said that it can be seen to be a reduction in terms and on the other hand, something that negatives the reductions.

PN52

MR REA: I see. That will be in relationship to the meal allowance, sir, of $10 being paid to any removalist. I don't have the award in front of me either and naturally I should have done, but what this does is that there are, within the award, several different payments that can be made depending on the number of hours you've got to work to get it. This $10 is payable after 9.7 hours and the way the workers view it is that they are more likely to get the $10 at 9.75 hours than they would, I think, the next amount in the award is about $12.50 and that's round about the 12 hours from memory, sir. So there is, over a year, a balancing where it was felt that they'd get the $10 in situations where they would not get anything, and that's preferable to get $10 than be eligible for $12.50 that you're not going to achieve on a particular shift.

PN53

THE SENIOR DEPUTY PRESIDENT: Yes, I see. And of course then the other - the pay increases that come in to counteract any negative aspects?

PN54

MR REA: That's correct, sir.

PN55

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN56

MR REA: I think you did ask about the clause dealing with the computation for accumulation of annual leave. And quite simply is that that's a different way of arriving at the same answer, which is - the award is approximately 2.9270. What it does is that there are a lot of the employees of the respondent that don't want to work all of the 38 hours a week. Some only work 30 to 34, for example, sir.

PN57

THE SENIOR DEPUTY PRESIDENT: Yes.

PN58

MR REA: What that means then, if it's based on the new calculation, it works out the same for everybody, but pro rata because of the hours. It saves the employer having to separate those employees who work 38 hours per week all year from those that work less than 38 hours a week all year, but they still end up with the same amount of days leave, but the hours paid would be pro rata down for those that work less hours.

PN59

THE SENIOR DEPUTY PRESIDENT: Yes. So the quantum is the same?

PN60

MR REA: Yes. Yes. It remains the same. It just simply is - it eases administrative costs for the employer, administrative fees just generally - and also for the employees it just accumulates as it goes.

PN61

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. And the change from the agreement, $20 for meal allowance in clause 32 to $10, what was the reason for that?

PN62

MR REA: Well, the same as I mentioned earlier, sir, is that the balancing there for the employees is that they would quite rarely achieve the higher rates, whereas they would more readily achieve the $10.

PN63

THE SENIOR DEPUTY PRESIDENT: But the agreement as initially voted on provided for a meal allowance of $20 to any driver who worked more than 10 hours. Now it's $10 for 9.75 hours.

PN64

MR REA: Yes. If I can just seek further instructions. Mr Maynard was directly involved in the negotiations. Yes. The balancing, sir, is that quite simply with the $10, they get that half an hour earlier and with the greater amount, they get that half an hour later and then that fits in with my comments earlier in regards to the fact that they're more likely to qualify for the lower amount than they ever would for the higher amount, sir. I'm sorry. Another aside, sir, is that this initiative came from the employees themselves.

PN65

THE SENIOR DEPUTY PRESIDENT: And that was voted on after the application was lodged and approved by a valid majority of those affected?

PN66

MR REA: Yes. They were all part of the changes that were on the second ballot, sir, yes. All changes - the whole agreement as has been brought before you today, sir, has been put to the employees. They've had copies in writing and they have had the opportunity to vote acceptance or otherwise.

PN67

THE SENIOR DEPUTY PRESIDENT: Yes. And all six of them voted on the latest version, if I can call it that?

PN68

MR REA: Yes, sir. And I believe that was on the 19th.

PN69

THE SENIOR DEPUTY PRESIDENT: And a valid majority of the six. How many of them voted in favour, can you tell me?

PN70

MR REA: I don't know the number, sir. If you can excuse me? Look, it was unanimous, sir.

PN71

THE SENIOR DEPUTY PRESIDENT: Unanimous. Yes, thank you.

PN72

MR REA: Thank you, sir.

PN73

THE SENIOR DEPUTY PRESIDENT: I'm going to need to think about this a little bit just to satisfy myself that the changes after the application was made can be accommodated in a certified agreement. I need to satisfy myself that the technicalities in the Act have been complied with. I'm not certain as I sit here right now, much as I'd like to say to you that I'll certify the agreement, I can't do that at this stage. Subject to being satisfied that these latest changes can be accommodated, I'm satisfied that the requirements of the Act have been met.

PN74

I'm just not quite certain and I'd like to think about it for a little while as to whether changes that have been made after an application is made can actually be incorporated into a certified agreement and if so how? I've got another matter listed. Perhaps we can go off the record for a time?

OFF THE RECORD [9.55am]

RESUMED [5.57am]

PN75

THE SENIOR DEPUTY PRESIDENT: I have advised the parties that I will consider this matter. If I'm able to certify the agreement without hearing further submissions, the parties will be notified to that effect. If I require further submissions, again the parties will be notified and arrangements made to have the parties address me further. On that basis I will adjourn. Have the Commission adjourn now, please.

ADJOURNED INDEFINITELY [9.58am]