C2002/1757, Transcript of Proceedings [2002] AIRCTrans 2948 (1 August 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

SENIOR DEPUTY PRESIDENT HARRISON

C2002/1757

TRANSPORT WORKERS AWARD 1998

Application under section 113 of the Act
by Transport Workers Union of Australia to
vary the above award re casual employees

SYDNEY

10.27 AM, THURSDAY, 18 JULY 2002

Continued from 11.6.02

THESE PROCEEDINGS WERE CONDUCTED BY VIDEO CONFERENCE IN SYDNEY

PN46

THE SENIOR DEPUTY PRESIDENT: There are no appearances here in Sydney. Any changes to the appearances in Melbourne?

PN47

MR RYAN: No, your Honour.

PN48

THE SENIOR DEPUTY PRESIDENT: I think you should just bear in mind what Ms Field mentioned earlier. I don't think it was transcribed.

PN49

MR P. EBERHARD: Sorry, your Honour. I am from VECCI. I would also be appearing on behalf of the Australian Industry Group.

PN50

THE SENIOR DEPUTY PRESIDENT: Yes, thanks. Any appearances in Adelaide?

PN51

MR S. SHEARER: Yes, thank you, your Honour, I appear on behalf of the South Australian Road Transport Association.

PN52

THE SENIOR DEPUTY PRESIDENT: Now, when this matter was last before me, I indicated that the employers should put in writing their response to the application and if they are not opposed to it, I said I will assume silence is consent. I received only written advice from NatRoad informing me in a memorandum dated 15 July that it was directed by its members to oppose the application so I assume this morning, Mr Duffin, we only need to worry about setting the matter for hearing so as to hear NatRoad's submissions. Mr Duffin?

PN53

MR DUFFIN: I think Mr Eberhard might have something to say on that.

PN54

THE SENIOR DEPUTY PRESIDENT: Do you have something to say, do you, Mr Eberhard?

PN55

MR EBERHARD: I do, your Honour. Mr Ironmonger, certainly in the file has a copy of a very brief outline in the sense that it goes to three points to the grounds of opposition to the TWUs application. It is addressed to yourself and it is dated 15 July. I don't know whether Mr Ironmonger or where Mr Ironmonger had forwarded to in the sense of which registry of the Commission he sent that to, but certainly there has been some submissions made by VECCI and we would be opposing the TWUs application of this matter.

PN56

THE SENIOR DEPUTY PRESIDENT: Well, I haven't seen it. Does it say anything more than it's to be opposed? Does it give any particulars at all, Mr Eberhard?

PN57

MR EBERHARD: It will take me about 10 seconds to read it so I'll do that.

PN58

THE SENIOR DEPUTY PRESIDENT: Yes, do that.

PN59

MR EBERHARD: In regards to firstly the application sought appears to reflect the position made in the metal industry decision which relied on industry specific issues in that industry. Secondly, if the application was granted, there would be a substantial cost to employers in both wages and other administrative costs and thirdly, any other matter that the Commission deems fit and proper and they are the three grounds upon which VECCI oppose the application that's been made by the TWU in this matter.

PN60

Can I also say for the Commission's benefit, the AI Group has concerns about the application. I understand that the TWU were to send a revised draft of clause to the parties and the AIG would rely on VECCIs submissions in this matter. Could I undertake to get to the Commission later this afternoon a copy of the submissions that VECCI has made in this matter.

PN61

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Well, is there any other employer organisation in Melbourne who wants some accommodation in relation to their filing of the grounds upon which they'd be opposing this matter or can I assume that the opposition seems likely to come from NatRoad and VECCI, who are likely to be supported by AIG?

PN62

MR RYAN: Your Honour, my notes of the last hearing indicated that the employers were to address the terms of the variations sought including specific clauses and general grounds and that was on the basis when the TWU sent out the redraft of the clause which we didn't receive. So I've been remiss in not filing, if you like, an in principle opposition and then I'll redefine that to mean that - it's the flow on of the metals case. I think, as I've said, and probably on record it's only a couple of times, we're not opposed to the concept but some of the detail we might have issues with but until we got the redraft, it was difficult to say exactly what they were.

PN63

So I would still like to reserve ARTIOs rights and if necessary, I'll file just a submission that opposes it in principle but I'm not exactly -

PN64

THE SENIOR DEPUTY PRESIDENT: Well, yes, there might have been a bit of misunderstanding there. It was certainly my view and I think it is reflected in the transcript, Ms Tisdale said little was to be achieved by any redraft and so accordingly the directions I gave were related to the application was filed. But never mind, we will make sure it now moves along promptly. Mr Shearer?

PN65

MR SHEARER: Yes, thank you, your Honour. Unfortunately, we've not received any copy of the transcript and Mr Kuczmarski who appeared on the last occasion is no longer with our organisation. Whilst that a problem on our side of the fence and we accept that, I therefore have not made a submission. We do have an in principle objection to the proposal from the TWU. We do need to see the detail of their proposed clause. We do not have that at this stage, including the original proposal.

PN66

We aren't opposed in broad principle to the maternity provision but we need to see the details and we're quite happy to submit to you today an indication of that and follow up very quickly with a more detailed submission.

PN67

THE SENIOR DEPUTY PRESIDENT: Right. Mr Duffin, what do you want to do about progressing this matter?

PN68

MR DUFFIN: Your Honour, I think given that both VECCI and NatRoad have indicated they do intend to oppose this matter, I think it's probably better that we actually just progress it on and to that end I suspect that we may need to set the same sorts of directions as we've done on the previous occasion for the Long Distance Drivers Award. So perhaps something along the lines of the TWU to provide witness evidence and an outline of submissions.

PN69

THE SENIOR DEPUTY PRESIDENT: I'm hearing several of the employers saying in principle they don't have a problem but they want to look at it and maybe I'm immediately attracted to adopting the metal industry standard without some tailoring and I guess I can understand that, although I don't yet have any proposals as to what modifications are being put. Do you think that there's a chance that a lot of this could be resolved in conciliation before we set a timetable?

PN70

MR DUFFIN: My own view is that it could be but the difficulty we have is that both VECCI and NatRoad have opposed it without giving anything other than a blanket opposition and perhaps conciliation might be the means by which we can - and indeed, that was the purpose of getting them to put some things in writing was to see whether it would be possible to narrow the scope of the dispute as it were. If the arbitration could be lessened to one of the matters or parts of the matters.

PN71

So certainly we're not opposed to the idea of conciliation. It may be the best means of ensuring that if there is to be an arbitration, it's conducted as expeditiously as possible.

PN72

THE SENIOR DEPUTY PRESIDENT: Yes. Well, why don't I require the employers to address in some detail the clause to identify any parts of it that they oppose and to put any competing proposal in writing and that will be more than just what we've been talking about, just filing a general outline of opposition in principle. It will be actually addressing each of the provisions of the clause and saying what their problem is. Do any of the employers have a strong view about that because I think that might be the way to go and then armed with that information, we can have a conciliation and see if we can't resolve most of this without the need for a hearing.

PN73

MR SHEARER: We'd be happy to do that if somebody would just give us a copy of the proposed provision.

PN74

THE SENIOR DEPUTY PRESIDENT: All right. Well, Mr Duffin can do that.

PN75

MR RYAN: Your Honour, just in terms of the process, are you looking at three weeks?

PN76

THE SENIOR DEPUTY PRESIDENT: A couple of weeks.

PN77

MR RYAN: Well, three weeks. Yes, that's what I'm looking at, Mr Ryan.

PN78

MR RYAN: Thank you, your Honour. So if we file something by close of business 9 August. I think Mr Duffin is all right with that.

PN79

THE SENIOR DEPUTY PRESIDENT: Yes, let's do that and in the interim, I will be looking at when I'll be next in Melbourne shortly after that time and if it's not to be me, when a Melbourne based Commission member can chair a conference, but I do expect whatever the employers have filed will be in some detail in terms of it will address in detail the variation that is sought because I'm assuming as you say, it may well be that in principle what is being sought to be achieved is not opposed but you're just not happy about adopting the metal industry standard well then, address each of the sub clauses and if you want to put a competing proposal, put that in writing too.

PN80

MR RYAN: Your Honour, just in terms of again process, it might be useful if the TWU was to send out their proposed draft to everyone again to make sure we're all singing from the same hymn book.

PN81

THE SENIOR DEPUTY PRESIDENT: Yes. Can you do that this afternoon or tomorrow afternoon, Mr Duffin?

PN82

MR DUFFIN: Yes, I should be able to do it today.

PN83

THE SENIOR DEPUTY PRESIDENT: Thank you. What else can we do about this matter other than adjourn it to a date to be fixed with the union having liberty to apply to call it on as soon as possible after it forms the view that conciliation is not going to be likely to resolve the matter. I can't identify a calendar date because I don't know yet when you'll be in conciliation but I think that's the way we should leave this file, Mr Duffin.

PN84

MR DUFFIN: That seems fine to me, your Honour.

PN85

THE SENIOR DEPUTY PRESIDENT: All right. I think that's all we can achieve this morning. Mr Duffin, did you get NatRoad's document that it sent to me?

PN86

MR DUFFIN: No, I haven't, your Honour.

PN87

THE SENIOR DEPUTY PRESIDENT: All right, we'll give you a copy of that as well.

PN88

MR RYAN: Neither did ARTIO, your Honour.

PN89

MR EBERHARD: Neither did VECCI, I don't think. It's not in the file anyway.

PN90

THE SENIOR DEPUTY PRESIDENT: All right. Let my associate know who wants a copy of it. The Commission now adjourns.

ADJOURNED INDEFINITELY [10.40am]