C0087/898, Transcript of Proceedings [2002] AIRCTrans 2936 (31 July 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LARKIN

C No 00878 of 1998
C2002/2933

RAILWAYS TRAFFIC, PERMANENT WAY AND SIGNALLING WAGES STAFF AWARD, 1960

Review under section 51, item 51, schedule 5,
Transitional WROLA Act 1996 re conditions of
employment

RAILWAYS TRAFFIC, PERMANENT WAY AND SIGNALLING WAGES STAFF (ROPING-IN No 1) AWARD 1993
and the RAILWAYS TRAFFIC, PERMANENT WAY AND SIGNALLING WAGES STAFF AWARD, 1960

Application under section 33 of the Act
for review of above award on the Commission's
own motion

SYDNEY

11.36 AM, WEDNESDAY, 17 JULY 2002

Reserved for decision

THIS MATTER WAS CONDUCTED BY VIDEOCONFERENCE IN SYDNEY

PN1

THE COMMISSIONER: Could I take your appearances, please?

PN2

MR A. THOMAS: If the Commission pleases, I appear on behalf of the Rail and Bus Union.

PN3

MR M. MOREY: If the Commission pleases, I appear on behalf of the New South Wales Labor Council.

PN4

MR P. BOMFORD: If the Commission pleases, I appear for the Rail and Structure Corporation.

PN5

MR B.LARKINS: If it pleases the Commission, I appear for State Rail Authority.

PN6

MR S.VOSTI: If the Commission pleases, I appear on behalf of National Express and associated companies including in this particular award Hoyes Road Lines Limited.

PN7

MR C. SHAW: If the Commission pleases, I appear for Freight Australia.

PN8

THE COMMISSIONER: Thank you gentlemen for your appearances. I can only presume, Mr Thomas are you going to address?

PN9

MR THOMAS: Commissioner, I understand that this matter is about the roping-in Hoyes to the simplified award. Hoyes at the moment, your Honour, with respect to this award are parties to a roping-in award. That roping-in award mirrors the Railways Traffic, Permanent Way and Signalling Wages Staff Award in regard to Part 2. Hoyes are a rail operator in Victoria amongst other things and it in our submission is eminently sensible and reasonable as part of the simplification process that the continued application or application of a roping-in can be set aside and that they can be brought into the main body of the award. As such, Commissioner, in many respects this is a technical matter and the ARTBU would support Hoyes being roped in to Part 2 and made a party to Part 2 of the Railways Traffic, Permanent Way and Signalling Wages Staff Award. If the Commission pleases.

PN10

THE COMMISSIONER: Any other submissions on the simplified award?

PN11

MR THOMAS: Sorry, Commissioner, I thought you were only dealing with the Hoyes matter.

PN12

THE COMMISSIONER: No, this is - well I don't believe so. It is a part review of both the awards. Part of that process is to look at bringing the roping-in award in and of course the respondents to that roping-in award were notified of proceedings.

PN13

MR THOMAS: I apologise, Commissioner, I must have misheard, I thought you were only dealing with the Hoyes matter at this point but I will go on to refer to the award simplification, or item 51 review in general.

PN14

Commissioner, the parties received either at some point yesterday or first thing this morning when they accessed their e-mails, a draft 5 of the Railways Traffic, Permanent Way and Signalling Wages Staff Award. That draft as we understand it is a follow on from the earlier draft and should take into account a number of amendments as suggested by the parties that were e-mailed to the Commission in the last week or so.

PN15

Commissioner, there is two comments that need to be made with respect to the New South Wales part of the award. The first goes to the inducement allowance and the Broken Hill allowance as mentioned to you in the Railways Metal Trades Grades Award the parties believe that they reached agreement on an appropriate clause and we would seek that the same course of action as determined in the Railways Metal Trades Grades Award apply equally here.

PN16

The second issue, Commissioner, goes to Part 3, that is the rail operating grades side of New South Wales and in particular to a cause on part-time employment. The ARTBU seeks a clause on part-time employment and the SRA as I understand it are either opposed to the clause that we seek or are opposed in general. I am not too sure of that.

PN17

In our submission it would necessary for the Commission to one have before it a copy of the precise clause that the ARTBU seeks although I might add that it is no different to that which is in Part 2 of the award and also the Commission would need to hear submissions both from ourselves and from State Rail and include any of the other respondents if they so choose, on the competing nature of the clause. It is not possible to undertake that exercise today, Commissioner, as we are simply not in the position to do that.

PN18

THE COMMISSIONER: Well, Mr Thomas, I think the parties are fully aware that this was to be a part review of this award. All terms and conditions were to be reviewed except rates of pay. Now, if I have misled the parties then please tell me. I think I've made it very very plain that this would conclude the conditions section of the award. The only outstanding issue was to be the rates of pay and the inducement and Broken Hill allowance clauses which I take it the parties have agreed although I don't have a clause before me.

PN19

I was not led to believe that I would have anything else but what you're saying to me then is that you need an adjournment of proceedings because you wish to address me on part-time. That's what you - - -

PN20

MR THOMAS: Well, that is the nature of the submission, Commissioner, but I need to point out that for some time the issue of part-time employment was not seen as an issue within this award. However, it is a reason in the last few months on the grounds that the State Rail Authority are employing persons on a part-time basis.

PN21

THE COMMISSIONER: I am sorry to cut into your submissions. The New South Wales part currently does not have a provision for part-time employment?

PN22

MR THOMAS: No.

PN23

THE COMMISSIONER: I take it, and again I can stand corrected, I take it that the employer opposes the insertion of a part-time provision in the New South Wales section as part of this review?

PN24

MR LARKINS: In the manner sought by the union, Commissioner, yes.

PN25

THE COMMISSIONER: Now, my view is that I am being told it is not appropriate, I don't have to include a part-time provision. It is discretionary where the Commission considers it appropriate. My view would be on that point that it is open to the unions to lodge a section 113 and seek to insert the provision it seeks. I do not see why that argument, which it appears to me will be an argument, should hold up the review of this award.

PN26

MR THOMAS: Commissioner, in response, I think there's a number of points I can make. Firstly, the issue of part time being in contention between the parties has been brought to the attention of the Commission before.

PN27

THE COMMISSIONER: I acknowledge that.

PN28

MR THOMAS: This is not the first time. It was also our preferred position at the time that the matter be dealt with as part of this review. I am not too sure which item it is but item 51 states that certainly with respect to part time the Commission must, as distinct from May if it considers it appropriate, to insert part time provisions.

PN29

THE COMMISSIONER: The thing is the provision, the Commission must review the award to determine whether or not it meets the following criteria, where appropriate it contains provisions enabling employment of regular part time employees. It's not that they must consider part time, the provision says we must review the award and then consider where appropriate facilitative part time and then we go on to plain English and what have you. It's not that the Commission must consider the part time issue, it must review the award to look at a number of criteria.

PN30

MR THOMAS: But in that respect, Commissioner, part time employment is a reality for the purposes covered by this award. It is available to be dealt with under award simplification. It seemed to us - - -

PN31

THE COMMISSIONER: Mr Thomas I will hear your submissions. The matter was listed for hearing today. Why should I adjourn proceedings to allow an argument to be presented before me when it's open to the union to lodge a section 113 and seek to vary the award?

PN32

MR THOMAS: Partly because, Commissioner, there is no prejudice to any of the parties in this room of that course of action is taken.

PN33

THE COMMISSIONER: All right, thank you. Mr Bomford, do you oppose an adjournment of this matter?

PN34

MR BOMFORD: I see no reason for an adjournment in relation to these proceedings today, Commissioner.

PN35

THE COMMISSIONER: Mr Larkins?

PN36

MR LARKINS: Commissioner, I think as pointed out by the Commissioner, perhaps it may be more expedient for the union to apply for a section 113. We would be significantly opposed to the clause sought by the union. Whilst there were some differences initially in the inducement in Broken Hill allowance, it was form more than substance but in this regard I think that we would be substantially opposed. It may be better for the sake of today's proceedings if the part time was progressed separately by section 113.

PN37

THE COMMISSIONER: Mr Vosti?

PN38

MR VOSTI: Commissioner, from our point of view the issues is a matter affecting I think the parties in New South Wales. We're happy with the Commission's resolve to have the matter heard as a 113 variation.

PN39

THE COMMISSIONER: So do you support or oppose an application for an adjournment for the matter to be listed for hearing, to hear the argument on part time?

PN40

MR VOSTI: Opposed to the adjournment, Commissioner.

PN41

THE COMMISSIONER: Mr Shaw.?

PN42

MR SHAW: Commissioner, as far as the Victorian parts are concerned we have agreement on the part time employment provisions. I understand some elements of that clause the New South Wales employers are opposed to, so I do have some sympathy with Mr Thomas' argument but I would have to oppose an adjournment of today's hearing simply because of the cost it would impose on the Victorian employers in appearing again. I would suggest if the issue can't be resolved quickly then he would need to apply to have the award varied at some stage in the future.

PN43

THE COMMISSIONER: Mr Thomas?

PN44

MR THOMAS: Well, Commissioner, it appears I'm one out on this. I think we maintain the view that the Commission can either adjourn it or part simplify it and insert into your decision the matter of part time employment and Part 3 remains outstanding and can still be done under this clause. I reiterate - - -

PN45

THE COMMISSIONER: How soon could you give me written submissions on the point, Mr Thomas>

PN46

MR THOMAS: Well, I could give you a submission in a week.

PN47

THE COMMISSIONER: Mr Larkins, submissions in reply?

PN48

MR LARKINS: Within a week, Commissioner. If pressed I could provide submissions - - -

PN49

THE COMMISSIONER: I'd rather not press, I'd just prefer the week, providing parties comply with deadlines. This is not my preferred course of action but I will hear you by written submissions in relation to the issue of part time for the part of the award that's associated with New South Wales. Those submissions must be filed and served no later than 3 o'clock by the RTB on 24 July and submissions in reply by, well I don't know, Mr Larkins, Mr Bomford, who is affected?

PN50

MR LARKINS: Principally State Rail, Commissioner.

PN51

THE COMMISSIONER: Any parties who wish to file any submissions in reply must file that material by 3 o'clock on 24 July - 31 July - and Mr Thomas, if you wish to reply to those submissions I will give you till 3 o'clock Monday, 5 August.

PN52

MR THOMAS: Thank you, Commissioner.

PN53

THE COMMISSIONER: The decision to review this award will then issue in the same document that the part time issue will be determined as well. Have we addressed the Broken Hill inducement allowance clause, Mr Thomas?

PN54

MR THOMAS: The same course of action as in the Rail Metals Award.

PN55

THE COMMISSIONER: So I will receive agreed draft clauses by Friday the 19th.

PN56

MR THOMAS: Yes.

PN57

THE COMMISSIONER: There is one thing and I will hear the rest of your submissions, Mr Thomas; there is one thing and if you look at the draft that you have, I think the facilitative provision is a complete and utter mess, not putting too fine a point on it.

PN58

MR THOMAS: Yes, Commissioner, there is identification of clauses but no clause number.

PN59

THE COMMISSIONER: Also, does the clause itself provide for a facilitative arrangement?

PN60

MR THOMAS: We can undertake, Commissioner, on the basis of the draft before you also on the issue of errors and omissions to address that matter and if they are facilitative provisions to provide the appropriate clause number. If they are not facilitative provisions in essence to inform the Commission that we are of that view and the particular clause can be deleted from the facilitative provision.

PN61

THE COMMISSIONER: When could I expect to have that advice, Mr Thomas?

PN62

MR THOMAS: I think you can have it at the same time as our submission on part-time employment.

PN63

THE COMMISSIONER: 24th?

PN64

MR THOMAS: 24th, yes.

PN65

THE COMMISSIONER: I will hear the rest of the parties, of course, most definitely but this order won't issue now until after 5 August. It might issue on 6 August but it won't issue before 5 August, of course. So, while we are doing that we might as well fix up the facilitative clauses in the award. If the clause is going to be listed in the index then ideally you would like some wording in a clause that tells you how the facilitative provision works and it has got to be within parameters as well, it can't be open-ended. So, the Broken Hill and inducement allowance by 19 July and the facilitative provision information by 24 July.

PN66

Anything further at all, Mr Thomas? We have addressed that we're not reviewing at all the rates of pay.

PN67

MR THOMAS: No, I have nothing further to add.

PN68

THE COMMISSIONER: Mr Morey anything further?

PN69

MR MOREY: Nothing further, thank you.

PN70

THE COMMISSIONER: Mr Bomford?

PN71

MR BOMFORD: No, nothing further, Commissioner, I think we've covered it well this morning.

PN72

MR LARKINS: Commissioner, I had an opportunity of going through the draft 4 last night and there are some matters there that I believe may need some further attention.

PN73

THE COMMISSIONER: What is it, Mr Larkins?

PN74

MR LARKINS: Commissioner, in relation to the facilitative - clauses have been listed as facilitative. There's some that I believe may not actually be - - -

PN75

THE COMMISSIONER: Well, that's the issue that we've just covered isn't it?

PN76

MR LARKINS: Yes.

PN77

THE COMMISSIONER: That's true. That's one of the reasons I raised it. If you're going to use a clause you should ideally have some facilitative arrangement.

PN78

MR LARKINS: Yes, indeed. There's some other minor matters through the draft that I've picked up. Perhaps in concert with Mr Thomas providing the reviewed facility provisions we could also list these other matters that could be considered.

PN79

THE COMMISSIONER: Are they minor matters?

PN80

MR LARKINS: They are minor matters, Commissioner, yes. It is leaving a word out or inverting a word, or something like that.

PN81

THE COMMISSIONER: Well, that is appropriate. If you go through that and advise my associate. I don't think that is a major thing as long as it is not anything of substance.

PN82

MR LARKINS: They're not major things, it is not even major, I would raise that there is in the draft in section 59 1.1 there was two figures, 59.3 - - -

PN83

THE COMMISSIONER: Whereabouts are they?

PN84

MR LARKINS: I am sorry, Commissioner, clause 69 1.1.

PN85

THE COMMISSIONER: What page are you on of the draft?

PN86

MR LARKINS: On mine it is 100.

PN87

THE COMMISSIONER: What is the clause number?

PN88

MR LARKINS: 69 1.1, Commissioner. On the draft we got from the Commission the figures 59.3 had been highlighted as if there may have been some query as to their inclusion in that particular clause. I've checked it out. That clause 59.3 relates to charge money and it is appropriate that it is included in that section.

PN89

THE COMMISSIONER: You can raise that with my associate.

PN90

MR LARKINS: Perhaps when we run through we will include that in the list that is raised with the Commission.

PN91

THE COMMISSIONER: Anything further, Mr Larkins?

PN92

MR LARKINS: Nothing further, Commissioner.

PN93

THE COMMISSIONER: Mr Vosti?

PN94

MR VOSTI: Thanks, Commissioner. Just in respect to the roping-in award, and representing Hoyes Road Lines Proprietary Limited, we haven't had difficulty with them being included as a respondent in that award.

PN95

Secondly, Commissioner, the matters in Victoria have been dealt with, with the exception I think of reference to clause numbers in the facilitative provisions but I understand that Mr Shaw has provided your associate with those references. Thank you, Commissioner.

PN96

THE COMMISSIONER: Yes, thank you. Mr Shaw?

PN97

MR SHAW: Commissioner, other than the rates and allowances, the matters as far as the Victorian part are concerned are concluded. I spoke to Mr McDonald this morning of the clause numbers for the two outstanding facilitative provisions and then there was a final matter about the way out of the index but other than that the matters are concluded, thank you.

PN98

THE COMMISSIONER: Thank you gentlemen. Well, at this point I will adjourn the proceedings. I've heard the parties in relation to the review of the award and of course it has been agreed that the clauses in the award associated rates of pay won't be reviewed as part of this process. The parties are to provide an inducement and an agreement inducement and Broken Hill allowance clause and also to amend the facilitative clauses in the award to correct any errors. Also I am to consider its submissions in relation to the ARTBU submission that it seeks a provision going to part-time for the part in the award associated with the State Rail in New South Wales and the parties will receive my directions later on today in relation to the final in serving of that material. So my decision is reserved and the decision and order in this matter will issue after 5 August.

PN99

if there's nothing further, gentlemen, I thank you for your attention and I will stand adjourned.

ADJOURNED INDEFINITELY [12.03pm]