C2002/1308, Transcript of Proceedings [2002] AIRCTrans 1450 (1 May 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER JONES

C2002/1308

TRANSPORT WORKERS' UNION

and

WESTOIL PETROLEUM PTY LTD

Notification pursuant to Section 99 of the Act
of a dispute concerning enterprise agreement
negotiations - report back

SYDNEY

2.21 PM, TUESDAY, 16 APRIL 2002

Continued from 12.3.02

Adjourned sine die

PN30

THE COMMISSIONER: Any changes, please?

PN31

MR NIGHTINGALE: Commissioner, no, no changes except for two extra drivers, Commissioner.

PN32

THE COMMISSIONER: All right, who wants to go first?

PN33

MR NIGHTINGALE: Well, Commissioner, as I indicated on the last time we met on the 12th do you mind if I - do you want me to stand?

PN34

THE COMMISSIONER: No, we're informal here.

PN35

MR NIGHTINGALE: Thank you. This is a report back. We had the hearing on the 12th. The company, Peter Blair, the delegate and myself, we sat down and nutted through the agreement which was a changed agreement from the one that we agreed on in December if you may remember back to that and we made some movement. Then the document was taken to the committee and the committee took the document to the drivers on 2 April, 14 days ago.

PN36

Out of that there were 13 drivers at this meeting of Westoil drivers, and out of that meeting there were a few other changes that they weren't happy with and one in particular was that meal breaks will be unpaid especially that the drivers are currently being paid the meal breaks due to various circumstances, in control of a dangerous goods vehicle and they are on the road and they do up to 12 hour shifts. So that has been a custom and practice where they have been paid. They wish for that to be removed. I might mention that the meal breaks unpaid were never part of the - - -

PN37

THE COMMISSIONER: Well, excuse me, when we say "wish to be removed" is that the committee or the troops?

PN38

MR NIGHTINGALE: The Committee. We took it to the drivers and that was the result of the drivers' meeting with the 13 drivers on the 2nd. There was some other issues on the public holidays and the other issue was the meal breaks, the public holidays and the reflection of the working rate, the all up hourly rate, which is agreed upon as a $25.00 hourly rate. They wish it to be reflective of the $24.50 plus a 50 cent component on the meal allowance so there is some tax break there. That wasn't a problem when we met with Peter Blair, nor was the changing of the public holiday clause and it basically came down to the clause on meal breaks and rest periods that the drivers weren't happy about that such meal break is unpaid. Their argument at the time was if you are paying it why put it in the agreement that such meal break is unpaid.

PN39

There was some further discussions with Mr Blair and the committee drivers that we may be able to change the wording that the company is currently paying. I sought some advice the following day from our legal department and they are suggesting that the "currently" should be changed and the company will pay during the course of this agreement.

PN40

Quite clearly, Commissioner, by being paid it now and the custom and practice as having such meal break as unpaid inevitably when this agreement is certified it certainly would open up the way to cease payment of the meal break and that would incur a loss of about 2 1/2 hours paid per week. Again, it is a concern and as we indicated last time we were here, Commissioner, we have been working through this enterprise agreement since February last year and this document has only appeared in the last few weeks and all it needs to be expedited. The company has indicated now they are being taken over at the end of this month by BP which is a concern. There has been some suggestions that seven day rosters and all of those sorts of things may be pushed upon these drivers so we would like to go forward with this agreement and have it signed off.

PN41

I had spoken to Peter Blair last week and there was some confusion on Mr Blair's side about the Workplace Relations Act and I believe he believed I was acting inappropriately. I say that after the years that I have been in the TWU and having just done the Qantas National EBA I am certainly mindful of the sections of the Act and the 14 day periods but we are certainly not going to allow a document to be circulated and that is what happened last Friday. The document has gone out. It has been posted out to members and obviously non-members in other areas.

PN42

We did touch on last time when we were here, Commissioner, that Mr Blair wants to pay the Newcastle men under this agreement. The union hasn't got a problem but the initial bargaining period, which we started in February last year, was for the Clyde depot and for the union members and the non-members at the Clyde site. So as far as any secret ballot, which Mr Blair is indicating, we find that unacceptable especially when we have had no discussions with these particular people. We don't even know their names. We are happy for them to be paid and the company's is within its rights to do that but they are not going to be in the process of putting their hands up and voting for it. We are certainly against that happening, Commissioner.

PN43

Now we had an in principle agreement. We had some minor changes to be made. The 14 day period was today. The drivers then had the right to reject or accept and the rumour was that they were thinking of rejecting it, figuring it wasn't good enough and they wished to have probably gone back to the award. The seven days notice. So, again, the union and the committee have done the correct thing as far as the Industrial Relations Act is concerned, especially under 170LK that we have at all times informed our members. I have all the documentation between the company and the union. We have got surveys. We have involved the drivers 100 percent but where the company has erred, it has sent an agreement out to unknown people which has not been accepted by the committee or the drivers at Clyde. That is where the argument is.

PN44

On Friday, Brett Mitchell, who is the delegate, had a few words with the company and he was also made to feel that he was responsible and he had done it wrong. So Mr Blair has become an expert in industrial relations all of a sudden after many, many months of, I suppose, slowness in bringing this to a head and now it is to be rushed because we are getting sold in two weeks. I can agree on that point but we are not going to accept something that we haven't agreed upon, Commissioner.

PN45

THE COMMISSIONER: Mr Blair?

PN46

MR BLAIR: Commissioner, what Glen says is not too far from the truth. On 2 April there was a meeting held at Clyde with 13 drivers present. We have operating out of the Clyde terminal, I know this is concern from Glen and the guys who sit here, there is actually 28 drivers involved in the city/metropolitan environment and then another nine, 10 in fact, in Newcastle. So even if we discount the Newcastle guys, 12 guys in a room doesn't constitute the majority and we had a concern as a company that everybody involved, everyone who was to be encompassed by this document or the agreement hadn't seen it.

PN47

There was a sense of urgency from the union and from the delegates that we push this thing through before 30 April which is the anticipate date that Westoil will be consumed, if you like, by another company. In an effort to make that happen, the meeting on 2 April I attended very, very briefly - probably the last five minutes, I suggest, and the one clause that seemed to be the sticking point and when read the way the agreement reads is that meal breaks are unpaid, as it says in the award. It is more less out of the award however the company currently chooses to pay meal rates in order to maintain operational flexibility. We will continue to do that. However, we also believe we need a fall back position should at some stage we have some aggravation from some drivers, from people who choose to take advantage of the fact that we pay something that we don't necessarily have to pay and certainly don't have to pay under the award. We believe we need a fall back position. If we are to state clearly in this document that we will pay meal rates for the life of the document then we are locked into that. If anyone chooses to take advantage of the fact that they earn an hour's pay for their meal breaks we have no fall back position.

PN48

THE COMMISSIONER: Well I presume the agreement has got a disputes procedure?

PN49

MR BLAIR: It certainly has.

PN50

THE COMMISSIONER: Wouldn't the fall back situation be in terms of the company what it wants if it needs it by saying should the agreement need to be reviewed the company will take the matter up immediately and will follow the disputes procedure.

PN51

MR BLAIR: I guess in fairness to Westoil, we did challenge these guys to come up with a way to word this because we are happy to pay it. At this point, we are happy to pay it. So we challenge these guys to come up with a way to word it where we have a fall back position and whereby they can be paid. We will certainly be guided by you Commissioner.

PN52

THE COMMISSIONER: I am just putting a general concept to you that if you are in so much need of a fall back situation, should the need arise, then somewhere in the clause it will state that you will take out immediate - well, hold immediate discussions with the employees concerned and should there be no agreement then they dispute and said you have already reserved it.

PN53

MR BLAIR: Yes, I don't see why we couldn't get something along those lines. Like I said we are currently quite happy to pay it.

PN54

THE COMMISSIONER: I have got to hear from the other side because they are the ones that are spitting, or have got the problem with it. It is just that I am raising it to try and resolve that problem between the two of you.

PN55

MR NIGHTINGALE: Certainly, and those discussions had occurred. As we indicated earlier the company is currently paying, that was a suggestion from the union that it may suffice. But the fall-back position is they've got a double whammy. They have got a disciplinary procedure within the agreement that if I may I will pass up, I have brought copies. Have you got a copy with you, Peter? I brought three. Page 1 to page 5, Commissioner. The argument we did raise was yes you have not only a disciplinary procedure you also have a settlement of disputes and grievances procedure so there are two clauses in there. Just reading the first paragraph there, as a fall-back if the company is saying it is unsafe or if they are abusing.

PN56

THE COMMISSIONER: Okay, I understand that but disciplinary procedure is somewhat different to a disputes procedure. A disciplinary procedure comes into action if there is a need to discipline any employee or group of employees some action may be taken. I would see that the actions over whether that clause should be in - whether the payment should be paid or not is more an industrial dispute.

PN57

MR NIGHTINGALE: I believe where the company is coming from Commissioner is that a fall-back situation if it is being abused that is what we say.

PN58

THE COMMISSIONER: Well that would be their right to take it up at any time.

PN59

MR NIGHTINGALE: Exactly. But as far as - and that is in the disciplinary procedure practices associated and they should deal with it appropriately.

PN60

THE COMMISSIONER: That is in the interest of all concerned because if someone is abusing the situation - nine times out of ten the reason in this community why we lose our benefits, and I am talking generally, is because some silly idiot wants to go ahead and do something different and it falls upon governments, etcetera, of the day to bring in procedures which affect everybody then. This is no different. If someone is abusing a system which is given as a privilege rather than a right then others stand to suffer if the company takes it upon itself to withdraw it. So a disciplinary procedure in that case is probably bad for everybody.

PN61

MR NIGHTINGALE: I concur.

PN62

THE COMMISSIONER: But how you word it is up to yourselves.

PN63

MR NIGHTINGALE: Again another suggestion, Commissioner, was that if they are currently paying it there was no previous discussion as I indicated about meal-breaks unpaid. The award does state that and the award is rather archaic but still it does state it. Why not keep it silent, why mention the meal-breaks? The mention of the meal-breaks which is on page 3 states, "not less than 30 minutes and not more than an hour". The TWUs position was why give them the opportunity to take up to an hour, limit it to 30 minutes and go forward with it that way.

PN64

The simple sentence again which allows - and especially with a new company taking over in a fortnight - allows and from my legal advice immediately take it away even from the people who deserve it. Just carte blanche, removed from the people who aren't abusing the system, that are driving this dangerous goods product and it is finished because of the change and their interpretation. Mr Blair may not be around when the new company takes over.

PN65

THE COMMISSIONER: I don't care about that. It is a problem, you may not be around either. You know you are both mature adults and you may - why for the life of me carry on with the wording that meets that I don't know.

PN66

MR BLAIR: Well the wording in the document, Commissioner, was actually Glenn's. So, when I left the meeting on 2 April the 13 drivers in the room agreed to that wording.

PN67

MR NIGHTINGALE: That is not correct anyway. So that is another untruth. There were six drivers left. We need to be frank here.

PN68

THE COMMISSIONER: Well arguing over it - he said, what he said - is getting us nowhere. We are trying to resolve a problem that currently - why you can't come for wording and give what you put to me that meets the needs of both groups I don't know. I mean I could come up with the wording but I don't think it is my place to try and put words into people's mouths when they are trying to reach an agreement themselves. I can only make a suggestion.

PN69

MR NIGHTINGALE: If we can change the words:

PN70

However the company will continue to pay the 30 minutes meal-break.

PN71

Even though the flexibility in the award as I have indicated allows them to go up to an hour and such meal-breaks are unpaid. So it would clarify it or we would become silent and if the company ever wishes to take on the award it is silent in the agreement and they can adhere - see that was another suggestion as well - they could adhere to the award provisions. So if the company would continue to pay for a 30 minute break.

PN72

THE COMMISSIONER: Why is that needed by the company to have more than one hour? Is there a need there.

PN73

MR BLAIR: I wouldn't be required at any time by the company to have more than an hour, Commissioner.

PN74

THE COMMISSIONER: Not more than an hour.

PN75

MR BLAIR: The work that we perform is not something that we control ourselves. The work is given to us by, if you like, the BP people under this contract. The contract negotiations we undertook a year ago were based on - all the figures were based on the fact that in a 12 hour shift there is a legal requirement for an hours worth of breaks in a 12 hour shift. We deduct that hour and we are paid for it. Or for a component of it - for 30 minutes of it. Because legally we are entitled to be paid as these guys are entitled to be paid for 30 minutes, if you like, of their two 10 minute breaks.

PN76

I think the award states, two 10 minutes breaks are paid. Which is effectively if you want to call it morning smoko, afternoon smoko and lunchtime are the three breaks they would have in a shift. The morning smoko and the afternoon smoko are a 10 minute break and are paid under the award. The half-hour lunch break is not paid under the award. Therefore BP would suggest that the vehicle would be non-productive for that half-hour and therefore will not pay for it.

PN77

THE COMMISSIONER: Well, you say words to the effect of a, a meal-break is not less than 30 minutes and not more than one hour. Is it dictated by the type of work performed at one time - at any given time?

PN78

MR BLAIR: I would be quite happy to, Commissioner, to state that we put in the agreement that the company recognised that a meal-break is a privilege not an entitlement and we will pay it. However, we would like the opportunity to re-visit should it be abused. I mean something along those lines. We are happy to continue to pay it while ever we continue to work the way we work. But we insist that we need to be able to go somewhere should the practise of extra long meal-breaks become abusive.

PN79

I think it is all very well to say that there is a disciplinary procedure or a grievance procedure. These particular vehicles work 24 hours a day, six days a week. There is not always somebody watching what they do. The only time we can track-down what they do at a later time is effectively by examining their paper work or keeping electronic records - we do both. Apart from the fact I don't really want to get into having to go down the disciplinary procedure track with 24 or 27 people because one person is misbehaving.

PN80

THE COMMISSIONER: I agree. Just leave it with me for a second. You can take those words down but don't quote me. It has been dictated by the type of work being performed or being carried out - it doesn't worry me which you use - at any given time. The company, however, reserves the right to take the matter up further with employees. Should the matter for payment be considered to have been improperly applied by any employee at any given stage in such instances it is recognised that there may be a requirement to implement the disciplinary procedure shown in this agreement - I suggest under these clauses, it makes it easier for any cross-referencing - shown in this agreement and/or the disputes and grievances clause, whatever it might be. Now, I am not asking you to use that as a complete working in terms of working around but the intent was there I think.

PN81

MR NIGHTINGALE: In that clause of meal breaks we will call it just clause X at the moment.

PN82

THE COMMISSIONER: I am not wedded to it as an offer by any means.

PN83

MR NIGHTINGALE: No, it does make a lot of sense.

PN84

THE COMMISSIONER: So have a look at it, discuss it if you like between one another and see what you can come up with, that's a suggestion.

PN85

MR NIGHTINGALE: As a suggestion that will take out the unpaid meal breaks are unpaid.

PN86

THE COMMISSIONER: Yes.

PN87

MR NIGHTINGALE: In that area there.

PN88

THE COMMISSIONER: I will leave you for 5 minutes to have a look at it.

SHORT ADJOURNMENT [2.47pm]

RESUMES [2.59pm]

PN89

THE COMMISSIONER: Mr Nightingale or Mr Blair?

PN90

MR NIGHTINGALE: I might just start the proceedings, Commissioner. Thank you very much for that suggestion and we've built on that with probably 80 per cent of your wording. At this stage from the unions point of view we are happy to use that clause, or that particular phrase in the clause.

PN91

THE COMMISSIONER: What about Mr Blair?

PN92

MR BLAIR: We are not too unhappy with it, Commissioner.

PN93

MR NIGHTINGALE: That will be clause 17 and 19. There is still some sort of clarification that we are seeking today is the position. Again it is a Sydney metropolitan agreement with the majority of drivers that I've represented with our drivers committee and that the company is prepared to involve this agreement with people in other areas in Newcastle, we are happy for that to happen but they would not be in the process of voting upon it when it is a Sydney metropolitan agreement. With the union agreement with drivers committee it will take it to the Sydney metropolitan drivers. That is where the company has got difficulties with it and where they've pushed for a secret ballot again with a document that wasn't - so we need to be clear. We get this document sorted out and happy for it but the valid employees that I represent is at the Clyde depot. I am hoping to try and get a meeting on Sunday because of the difficulty in there, we have 28 drivers, last time we met we had 24, so the company is growing, within a couple of weeks.

PN94

THE COMMISSIONER: How many members are we looking at overall, employees?

PN95

MR NIGHTINGALE: Union members about 14.

PN96

MR BLAIR: The total employees encompassed by the contract with BP, Commissioner, is in total 37. That includes casuals and the union in fact wanted casuals included in this document so then I think they should count them.

PN97

THE COMMISSIONER: Are casuals mentioned?

PN98

MR BLAIR: Casuals are mentioned in the document.

PN99

THE COMMISSIONER: Because the stat dec that you will have to fill out has to state how many casuals.

PN100

MR BLAIR: Our concern is that in the meetings that the TWU hold with our committee and with our drivers there may be up to 14 and 15 perhaps, sometimes not that many. Like I said previously if we discount the guys in Newcastle, which I don't think that that is right, they're involved in exactly the same contract and should be involved in this agreement and in fact you know we're happy to pay the same. If 14 drivers come to a meeting in Sydney and they all vote one way or the other, whether it be in the positive or in the negative that can't be considered a majority vote. I mean a majority vote has to be by everybody encompassed by this agreement regardless of whether they're members of a union or not members of a union, they've all had input at some stage, whether it be directly with me or whatever.

PN101

THE COMMISSIONER: Lets go back a moment a bit and look at this in two ways. The union has membership there be it 13, 14 or whatever it might be, if they vote and it is carried there then you have got one section of the work force that carried it. If you go to the other section of the work force and you're not worried or not concerned that they would accept it up themselves because I see you are making a rod for your own back if you end up with two documents, one for one group and one for the other. So it is in your best interests to go for one encompassing agreement if you like. If you've got the other group in there and they have voted for it by majority too, then it is a foregone conclusion it's the majority. You've had your vote with your members, they are not influenced in numbers eventually by what might come out of the other side. It's in the company's interests to have the one document up in front so you are doing it by two courses. You may find at the end that it's a document that I certify but it's overall for the employees.

PN102

MR BLAIR: And we are happy to do that Commissioner.

PN103

THE COMMISSIONER: But I suggest you get the voting that you are doing elsewhere done by the proper means. In other words if there's 14 going to the meeting and the 14 names are ticked off as in agreement with the agreement or not you get your majority so you know who has voted and who hasn't. So no-one comes back to you from your group that you're looking at and says, hang on, we never got a vote. It puts the whole thing into doubt then.

PN104

MR BLAIR: We had planned Commissioner to - not planned, we had, in fact, sent a document out to all our drivers, everybody.

PN105

THE COMMISSIONER: Do you know who are members and who are not?

PN106

MR BLAIR: I don't have an accurate count of who are union members and who are not.

PN107

THE COMMISSIONER: That's the difficulty you've got.

PN108

MR BLAIR: At the end of the day, I would have expected that whoever appeared, if it is going to be a show of hands, that either chooses to accept or not accept the agreement then the show of hands needs to be of a majority of all those encompassed and if it is not then - - -

PN109

THE COMMISSIONER: If the show of hands is a majority of all those there and you know your members, Mr Nightingale, and they have voted in the majority have you got any problem?

PN110

MR NIGHTINGALE: No, I'm totally in agreement with you. Again, I agree with what you have said and I have said that to Mr Blair and I don't think he has - our particular group we represent is whether it's a union agreement and non-union members at that site will vote on this agreement. We are happy for the company to take it to the other members for them to have their vote which is part of the responsibility of the company. There's not a problem, so I agree that - - -

PN111

THE COMMISSIONER: The difficulty the company has got is who are members and who are not.

PN112

MR NIGHTINGALE: Well, from our understanding there have never been any discussions, we are not aware of these people. If the company weren't forthcoming in discussing it right from the outside that they existed, but happy for them and our understanding of one of our organisers in Newcastle has no membership up there in Newcastle. So we are happy for them to have it but they - - -

PN113

THE COMMISSIONER: Okay. Newcastle votes.

PN114

MR NIGHTINGALE: They will cast their own votes.

PN115

THE COMMISSIONER: There's no membership in Newcastle. You vote in Newcastle. So you're going to have a casting vote there. But there's some members in Sydney, or some non-members in Sydney and you know who they are and who they aren't.

PN116

MR NIGHTINGALE: That's right.

PN117

THE COMMISSIONER: And you are the one from your side who has got to eventually get a majority of your members up.

PN118

MR NIGHTINGALE: I understand, Commissioner.

PN119

THE COMMISSIONER: Well, do you want me to conduct this voting through a registrar manual?

PN120

MR NIGHTINGALE: Well the indications from Sydney - they are happy with a show of hands for the voting majority and what the company wishes to do with the non-union sites, if they wish to do a secret ballot I have no control over that any way. But a show of hands has been indicated from the majority of the drivers again as indicated I'm happy to go on Sunday because of the nature of the job.

PN121

THE COMMISSIONER: To some extent you conducting your elections or voting for it is by ballot as far as the company is concerned because it doesn't know who has voted there anyway but it gets a figure from you. The majority have voted for it. Now if you have got a majority from your side then overall you must have a majority.

PN122

MR BLAIR: It is our belief, Commissioner, that we should combine the two. Now we are happy for the members, if you like, to have a show of hands vote providing that we are involved in that.

PN123

THE COMMISSIONER: That's why I'm suggesting we get someone, a registrar, involved. Some independent person to go out there, do the election, take the votes and then they can consult with both sides and say well this is what we've got. If there's an overall majority, who cares? You got it up. It is only when you're in contention over who's in the majority and who's not. But if there's an overall majority who cares what the final vote is? You've got it.

PN124

MR BLAIR: Commissioner on the document we set out - the ballot paper - which was quite simply was a secret ballot. No names, no pack drill. It was to be sent back to Priestley and Morrison, an accounting firm in Parramatta, so we didn't have any direct involvement and it didn't come - so it was going to be, if you like, an independent arbitrator.

PN125

MR NIGHTINGALE: When did we agree on that?

PN126

MR BLAIR: Well, we didn't. That's what we thought would be a good thing to do because - - -

PN127

MR NIGHTINGALE: Fantastic.

PN128

THE COMMISSIONER: I'm suggesting is that we get someone from the registrar to go out to the voting on the day and take the votes. It's done there and then and on the spot so everyone knows within an hour of the vote taking what the result will be. If you're confident you've got your own to show up you have got no concerns. If you're confident, you'd have no concerns.

PN129

MR BLAIR: With the registrar, Commissioner, what that would mean that if we have 24 people - - -

PN130

THE COMMISSIONER: Well, you can do it two ways. You can do the registrar thing on everybody. Call on the vote from everybody there and then on the spot or you can get the registrar to do your election and your election. Then get one then two and see what they are.

PN131

PN132

MR BLAIR: So it will be a combination vote?

PN133

THE COMMISSIONER: Well, I said you can do one of two ways. You can do a combination vote with the registrar involved and that is done by a simple tick on the paper, a sheet of paper, or you can do it separate to the union elections and do yours.

PN134

MR BLAIR: I probably wasn't very clear there, Commissioner. What I am trying to get at I guess is that if we have two separate, the registrar comes to our offices and these chaps meet, they have a vote and they count the total.

PN135

THE COMMISSIONER: I suggest whichever way it goes it is done on the one spot at the one time. It may be said two separate votings if you like.

PN136

MR NIGHTINGALE: Commissioner, Mr Blair has indicated to us on many occasions it is virtually impossible to get the drivers all there at the one time. Now, there has been some suggestions whether it is a paid meeting. It is very important that we have it. We've already had our show of hands of an in principle agreement but we're confident but I agree that the two separate positions is the way to go as we've always indicated to the company. They can apply it in whatever area they wish and take it to other votes to other areas as well.

PN137

THE COMMISSIONER: It seems to me to get people down from Newcastle to Sydney is a problem.

PN138

MR BLAIR: I don't think we will have - I mean we probably should clarify something, Commissioner. We are happy for this agreement to move ahead. I mean if we change this one clause today and we as a company don't have a problem with it and I don't think anybody that has seen it today has a problem with it, especially once we take your words and - - -

PN139

THE COMMISSIONER: I accept that but logistically to get the people down from Newcastle to Sydney?

PN140

MR BLAIR: It is probably not achievable.

PN141

THE COMMISSIONER: It's not achievable so therefore you have the elections in Newcastle. As you said there's no union members up there or you believe there are no union members and from what Mr Nightingale has said that seems to be the position. So if we have an election in Newcastle later on and you have yours down here. Are there any non-members in Sydney?

PN142

MR BLAIR: I would suggest there is quite a few, I am not exactly sure.

PN143

MR NIGHTINGALE: There's been a bit of a turn over in the last six or eight months of drivers and we estimate there could be between eight or nine, just off the top of my head, there may be more. Some drivers that, as a committee, we haven't met some of the new drivers.

PN144

THE COMMISSIONER: No names no pack drill, on a voting ballot paper if I do the one in Sydney, I will arrange for the one in Sydney to be done through the registry, there should be two or three points on it. One is yes or no to it and 2, are you a union member or not so then the registrar can determine, no names as to who they are, can determine by that that is cast by a union member or a non union member. Only for the determination of the final voting position by the registrar.

PN145

I point out that you've got - well how long have you got before this occurs to take up, 2 weeks? You've got 14 days in which to put it before the troops for them to then vote. You really can find 14 days, not 14 working days, so that gives you at least the weekend. Well what day do you want for the registrar? I don't think we will need it for Newcastle and we don't need a ballot paper up there if there is a union member or non union member but what I'm saying is the ballot paper has on it yes or no to the - with no names on it in both areas and then in Sydney because we've got a mixture just a question, union member or non union member, tick the appropriate box. That is only for the registrar or whoever goes to the registrar to determine these are the votes from the union members, these are the votes from the non. I think there is a need for you, Mr Blair, and you, Mr Nightingale to get together with registrar's representative on that at the end of the voting. Both of you.

PN146

MR BLAIR: As to how that should be conducted?

PN147

THE COMMISSIONER: No, when the registrar adds up the votes you are able to see that. You won't know who the non-union members are because there will be name on it and you won't know. That retains the privacy of whether they're a member of the union or they're not for both sides.

PN148

MR NIGHTINGALE: So if we go forward with this ballot, we could start it as early as tomorrow in a box and then the registrar comes out or it's actually on the day?

PN149

THE COMMISSIONER: Well, the agreement has to sit there for 14 days.

PN150

MR NIGHTINGALE: We had an in-principle agreement on 2 April with this agreement. If that clause - - -

PN151

THE COMMISSIONER: If you've got an in-principle agreement at all, I'd suggest that you need to put it to the troops as a revised clause, get their agreement with that and then you put it to the vote. But let me know so I can get someone from the registrar to be out there because we've got a limited staff who can attend there.

PN152

MR NIGHTINGALE: What I was suggesting, Commissioner, would we try and get the voting under way in a locked box and for the registrar to come out and count them?

PN153

THE COMMISSIONER: Yes. Well, the registrar has to be out there when they're voting, I suggest.

PN154

MR NIGHTINGALE: When they're voting at the time.

PN155

THE COMMISSIONER: Yes, at the time, okay? I don't think you would need for the registrar to go to Newcastle.

PN156

MR BLAIR: No, there's already an in-principle agreement in Newcastle.

PN157

THE COMMISSIONER: We'll arrange for a locked box to go out there.

PN158

MR NIGHTINGALE: And so the Sydney drivers will do their box and the Newcastle will have theirs?

PN159

THE COMMISSIONER: I can get the election papers prepared, the election papers will simply be (a) an agreement with the agreement as put to you, yes/no. In Sydney it will be a case of please indicate whether you are a union member or a non-union member by appropriate ticking of the box. There'll be no names put on the papers whatsoever.

PN160

MR NIGHTINGALE: Excellent.

PN161

THE COMMISSIONER: Maybe you need a roll, my associate has just pointed that out, maybe you need a roll that when an employee goes to vote they put their name on a roll. It doesn't say how you vote, you just put your name there so we know that, yes, we've got the majority of the employees. If anyone has missed out, it might be they're on annual leave or they're on leave of absence or something.

PN162

MR BLAIR: I can provide a spreadsheet there, Commissioner, for the guys to tick as they walk in the room they can tick or sign it.

PN163

THE COMMISSIONER: It's all we need, in alphabetical order just a roll of who the employees are and just tick them off as they vote. Same in Newcastle, it needs to tick them off in Newcastle. It's for their own protection on both sides.

PN164

MR BLAIR: Just to clarify the Newcastle position, Commissioner. The registrar not required up there, so it's just a straight - - -

PN165

THE COMMISSIONER: Well, we can probably arrange for a scrutineer to be checking. I think if you're going to scrutineer in Sydney we should scrutineer Newcastle as well.

PN166

MR NIGHTINGALE: Mr Blair was saying it doesn't require a registrar up in Newcastle?

PN167

THE COMMISSIONER: Well, he's asking me and I'm saying I think if we are scrutineering the Sydney people we need to be when it ends up there they need to be scrutinised. Okay, but you've got to let me know the date of the voting so that I can then arrange for someone to be there.

PN168

MR BLAIR: In the interests of expediency, Commissioner, the concern that all the chaps have is the take over of this business will occur on 30 April, so I would suggest that they try and get it done before then. I mean, I don't think quite honestly it will make - - -

PN169

THE COMMISSIONER: I'll arrange for a hearing in the Commission to certify that if need be.

PN170

MR BLAIR: Having spoken to the chap that's actually taking the business over there, everybody's concerns could be misaligned, I don't think he's the slightest bit concerned about a new agreement being signed up, but I can understand the guys being a little nervous given what's happening.

PN171

MR NIGHTINGALE: 2pm, Friday the 19th.

PN172

THE COMMISSIONER: Friday the 19th, is that a suitable time?

PN173

MR BLAIR: That will be fine, Commissioner.

PN174

THE COMMISSIONER: 2 pm, Friday, the 19th. We will see if we can get someone out there on that date. But I've got to be convinced the employees have seen the amended document.

PN175

MR BLAIR: Can we get a ruling on whether we can mail that out because for the sake of expediency that might be the best way to get them to see it.

PN176

MR NIGHTINGALE: Well, again, as the rules indicate we have got an agreed document, you can post it on the walls, mate, let's get the document tomorrow or tonight and the amended document to me that I can give it a tick and to the committee guys, well, especially Brett as their delegate, and it gets the tick it will meet the criteria of the in-principle agreement from 2 April, not a problem.

PN177

MR BLAIR: Can I just suggest that 2 pm on Friday, 19 April is the day after Anzac Day. No, that's this coming Friday.

PN178

MR NIGHTINGALE: This Friday.

PN179

THE COMMISSIONER: You reckon you can have it ready by this Friday?

PN180

MR NIGHTINGALE: The document is all but, and I think Mr Blair has only to make those changes.

PN181

THE COMMISSIONER: Well, you've got to let the Newcastle people know, and the Sydney people and non-members. How do you do that?

PN182

MR BLAIR: Can we perhaps push it to the middle of the week, even Tuesday or Wednesday? That gives us a week.

PN183

THE COMMISSIONER: When did it go to the troops originally?

PN184

THE NIGHTINGALE: The latest one was, well, last year, but this latest one was 2 April.

PN185

MR BLAIR: That was the in-principle one, that was a piece of paper, we have an agreement document that got posted out on Friday.

PN186

MR NIGHTINGALE: No, I beg your pardon, we had a document, the in-principle document was distributed, I went through every clause.

PN187

THE COMMISSIONER: The 16th, today was 14 days, they've had the document 14 days, right?

PN188

MR NIGHTINGALE: That's right.

PN189

THE COMMISSIONER: I suggest that they have at least till the end of the week in which to review it, the amended, and then some time next week, and if we can get a document before the Commission we'll try and certify it before 30 April. Well, subject to someone being involved in the registrar too, so I'm getting someone up from there now. What's the best, what's the best internally, Monday or Tuesday?

PN190

MR BLAIR: I think Tuesday suits Brett, doesn't it, based on the shift you were talking about the other day, does Tuesday suit you better as an opportunity to get everybody?

PN191

MR MITCHELL: I'm easy, Peter, I'm in anyway.

PN192

THE COMMISSIONER: Okay, Tuesday of the 23rd.

PN193

MR NIGHTINGALE: Tuesday, 2 pm?

PN194

THE COMMISSIONER: Well, wait till I get someone up from the registry, they're the ones will have to send people out. Now, where have they got to go to here?

PN195

MR NIGHTINGALE: Durham Street at Clyde or Rose Hill.

PN196

THE COMMISSIONER: Clyde, okay, and Newcastle?.

PN197

MR BLAIR: In Newcastle they're on the corner of Industrial and Elizabeth Streets, Carrington, BP Terminal. I'll supply you with all that information.

PN198

THE COMMISSIONER: Okay. I'll get my associate to get it, down in Carrington. Well, if you've got a wording here and you agree with it, what's the difference how it goes out?

PN199

MR NIGHTINGALE: The agreeance with that clause is put in right to circulate anyway. There is no disagreement there whatsoever. In the trucks, round the depot, yes, fine, which happened with the last agreement, I think it was in the trucks, it was out and about.

PN200

THE COMMISSIONER: Yes, I would put in trucks at the moment.

PN201

MR BLAIR: Well, we will physically hand it to them.

PN202

THE COMMISSIONER: If there is anyone that's off sick or on annual leave, mail it out to them. Any of those that are not at work at the given time, you would have to mail it to them, I'd suggest. You will have to notify them that the elections are on, the voting is on.

PN203

MR NIGHTINGALE: Commissioner, Mr Blair has posted out the previous document we had the agreement on so he can ring them up with the changes in the clause and say there's a minor change. I think that would suffice.

PN204

THE COMMISSIONER: Right, well, let's go off the record for a minute.

OFF THE RECORD [3.23pm]

RESUMES [3.29pm]

PN205

THE COMMISSIONER: There is some uniqueness to this agreement because of the time that's been involved with negotiating it, there is also further uniqueness because of the potential takeover of the company within a short period of time. The other feature of it is that there are a group of non-union members and a group of union members and the company would like to see a position where everyone who is going to be affected by the agreement that there would be no one left out of it should it be certified.

PN206

The situation is brought about that the agreement or draft agreement has already been on the table for 14 days before the workforce. As a result of today's hearing there is an amendment to be made to the agreement. It is a minor amendment and therefore I don't see the need for that amendment to sit for the same 14 days. Agreements have been reached that the union and the company will arrange for that amendment to be made to the document along with changes which would include the numbering of those clauses currently in the draft agreement and that amendment will be pointed out to the workforce accordingly by Friday of this week.

PN207

In terms of the voting of the document as it stands with the amendment that will take place in Sydney and Newcastle on Tuesday next, the 23rd of April at 2.00 pm in both locations at Clyde and Newcastle Carrington. Because of the uniqueness of the membership being union members and not, in particular Sydney, the ballot paper in Sydney which will be prepared by the registry will indicate by ticking only, there will be no name whatsoever required to be placed on the ballot paper, ticking only will indicate whether that particular voter is a member of the union or not. It will also indicate whether they are in agreement with the agreement as it stands or not.

PN208

In Newcastle it will only have boxes appropriately for whether they were in agreement or not with the agreement. First of all, there will be a roll tick off by individuals and the registry will supervise that. If at the end of it there are some names not ticked off, means will be ascertained as to why those employees may not have been able to vote on that day but arrangements will be made by the registry also for voting by post for those employees who may have difficulty in attending.

PN209

Votes will be collated on the day of the voting, put together. The results will be arranged to be known to the individual as will the Commission also on no later than the morning of the 24th, and providing the Commission has the document in its hands by the end of that week which is agreed to by the employees I will arrange for the certification of the agreement either the 29th or 30th of April.

PN210

Anything you would like to add?

PN211

MR BLAIR: No, Commissioner.

PN212

MR NIGHTINGALE: No, that's fine, thanks, Commissioner.

PN213

THE COMMISSIONER: Are we right from the registry point of view? Okay, I will adjourn this matter and wait with interest from the parties as to where they stand next week.

ADJOURNED INDEFINITELY [3.34pm]