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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
Tel:(08)8205 4390 Fax:(08)8231 6194
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER DANGERFIELD
C2002/4239
APPLICATION FOR AN ORDER TO
STOP OR PREVENT INDUSTRIAL
ACTION
Application under section 127(2) of the
Act by Trans Adelaide for an order to stop
or prevent industrial action
ADELAIDE
2.10 PM, WEDNESDAY, 6 NOVEMBER 2002
Continued from 4.10.02
before SDP Harrison in Sydney
PN44
THE COMMISSIONER: Now, appearances please, for Trans Adelaide?
PN45
MS M. SMEDLEY: Sir, I appear for Trans Adelaide, appearing with me MR P. WELSBY.
PN46
THE COMMISSIONER: Thank you, and for the union?
PN47
MR R.B. HANCOX: Yes, sir, I appear on behalf of the ARTBIU and appearing with me is Mr J. JAHANGIRI, that is J-a-h-a-n-g-i-r-i, if the Commission pleases.
PN48
THE COMMISSIONER: Mr Hancox, Mr Jahangiri. Now, this is an unusual matter, of course, in effect it is a private arbitration of course, and therefore the usual procedures don't necessarily apply although I want to deal with this as we normally would, but I guess the issue is, who is going to lead off? Has that been agreed?
PN49
MR HANCOX: Trans Adelaide.
PN50
THE COMMISSIONER: Because this is really no one's application as such, it is an agreement for private arbitration, but it has been agreed has it, that Trans Adelaide won the toss and decided to bat, is that right?
PN51
MS SMEDLEY: I think so.
PN52
THE COMMISSIONER: Okay. I'm happy with that and then you will follow, Mr Hancox, and then there will be just a brief right of reply at the end if there is any cases to distinguish or matters like that, I think that is probably the fairest way of handling it. Ms Smedley, over to you?
PN53
MS SMEDLEY: Sir, the parties appeared before the Australian Industrial Relations Commission on 4 October 2002 under a section 127 application by Trans Adelaide for an order to stop or prevent industrial action by the Australian Rail, Tram and Bus Industry Union, the ARTBIU. The matter was heard by Senior Deputy President Harrison and it related to a recommendation from the union that drivers do not work trains beyond 209 kilometres in any one shift. Sir, Trans Adelaide suburban train drivers who travel a distance greater than 209 kilometres in any one shift are entitled to a distance payment and this payment is just one of a number of elements of the train drivers aggregate wage calculation.
PN54
However, sir, this particular element is currently under dispute and the parties cannot agree on a common interpretation of the award clause on distance payments. Sir, at the 4 October 2002 hearing Senior Deputy President Harrison referred the matter to you as a Commissioner of the Australian Industrial Relations Commission with what Trans Adelaide understands was a request for you to assist the parties with resolution of the matters in dispute. On Wednesday, 23 October 2002 the parties met with you in chambers where it was agreed to resolve the matter through private arbitration. The parties agreed to you being the private arbitrator and it was determined that the parties would present their respective positions to you by formal submission.
PN55
Sir, the parties therefore come before you today to seek your assistance in determining a common interpretation of the award clause on distance payments. Sir, as I previously mentioned distance payments are one element of the Trans Adelaide suburban train drivers aggregate wage. The distance payments are contained at clause 33.3 of the Rail Industry Trans Adelaide Award 2002 which I will refer to in my submission as "the award".
PN56
THE COMMISSIONER: What clause was that again, sorry the - - -
PN57
MS SMEDLEY: 33.3.
PN58
THE COMMISSIONER: Yes, 33.3.
PN59
MS SMEDLEY: Sir, for the purposes of this hearing I will read the clause. 33.3.1:
PN60
A suburban train driver will be paid a minimum of 8 hours on completion of the distance of 209 kilometres in any one shift.
PN61
33.3.2:
PN62
A suburban train driver will be paid at the rate of time and a half for all time worked after completion of a distance of 209 kilometres in any one shift, such time to stand alone and not be included in the computation of overtime.
PN63
The aggregate wage is contained at clause 33.2 of the award and for the purposes of this hearing I will also read that clause. 33.2.1:
PN64
So far as normal rostered work is concerned the parties to this part of this award may agree to apply the penalties and allowances provided for Saturday time and Sunday time, over time, shift work, broken shifts, distance payment and annual leave loading on an averaging basis and this arrangement will be referred to as the aggregate wage.
PN65
33.2.2:
PN66
Employees covered by this part of this award and who are in receipt of the aggregate wage are not entitled to any additional payment in respect of annual leave loading as provided in clause 16.1.3.
PN67
Sir, these clauses in turn refer to other matters such as shifts, over time, Saturday and Sunday time in the award and we will turn to these matters in a short while. Under the current Trans Adelaide Train Operations Certified Agreement 2001 at clause 9.1 the unions and drivers agreed to form a working party with Trans Adelaide to progress outstanding issues in respect to the aggregate wage within 12 months of certification of the agreement which occurred on 5 November 2001. Within that clause 9.1 it is note four which refers to this.
PN68
THE COMMISSIONER: This is clause 9.1 of the agreement?
PN69
MS SMEDLEY: Of the certified agreement.
PN70
THE COMMISSIONER: Yes, that is the Classifications, Wage Rates and Allowances.
PN71
MS SMEDLEY: At the page - next page, page 6.
PN72
THE COMMISSIONER: Yes.
PN73
MS SMEDLEY: Half-way down is note four.
PN74
THE COMMISSIONER: Half-way down is note - - -
PN75
MS SMEDLEY: Four, under the heading of Aggregate Wage.
PN76
THE COMMISSIONER: I have it, yes. It is on my copy at page 9 of 27, I think, this is towards the end of 9.1, is it?
PN77
MS SMEDLEY: Yes.
PN78
THE COMMISSIONER: I see, it says Aggregate Wage and there is note 1, note 2, note 3, note 4?
PN79
MS SMEDLEY: Four, that's is correct.
PN80
THE COMMISSIONER: Yes.
PN81
MS SMEDLEY: Sir, this aggregate working party has meet frequently since 31 May 2002 and comprises of Trans Adelaide management, drivers, union representatives and officials. Sir, if I may table a list of the times that the party and Trans Adelaide has met in respect of the aggregate wage?
PN82
THE COMMISSIONER: So Mr Hancox you have had a look at this? Are you happy with this document?
PN83
MR HANCOX: Yes, certainly, Commissioner.
PN84
THE COMMISSIONER: Yes, well, we can take this as an exhibit, I guess, exhibit TA1, and that is a list of the meeting times of the Aggregate Working Party held in accordance with clause 9.1 of the Trans Adelaide Train Operations Certified Agreement 2001.
EXHIBIT #TA1 LIST OF MEETING TIMES OF THE AGGREGATE WORKING PARTY
PN85
MS SMEDLEY: Sir, the exhibit is self-explanatory. It just details the times the party has meet, also details when Trans Adelaide management has met to progress research matters which we have then taken back and tabled in a report to the working party.
PN86
THE COMMISSIONER: Can I just ask, there is no reference, is there, in the award or the agreement to the working party as such? It is just that the parties may agree on an aggregate wage and the reason the working party was put together was for that purpose?
PN87
MS SMEDLEY: Yes, in the certified agreement it refers to the parties working towards agreement on the interpretation of the award for calculating the aggregate wage.
PN88
THE COMMISSIONER: Yes, that is in note 4, yes.
PN89
MS SMEDLEY: Considerable discussion amongst the parties during enterprise bargaining that there were issues that had to be addressed and the best way to address them would be through a working party.
PN90
THE COMMISSIONER: So that working party was looking at things other than the aggregate wage as well?
PN91
MS SMEDLEY: No, solely the aggregate wage.
PN92
THE COMMISSIONER: Solely the aggregate wage?
PN93
MS SMEDLEY: Yes.
PN94
THE COMMISSIONER: Can I just ask also, when did these provisions about the aggregate wage come in to the agreement and the award, for that matter? What is the history have they been around for a long time or - - -
PN95
MS SMEDLEY: I will come to that - - -
PN96
THE COMMISSIONER: Okay.
PN97
MS SMEDLEY: - - - in my submissions.
PN98
THE COMMISSIONER: You will come to that, that is fine.
PN99
MS SMEDLEY: Yes. Through the working party we have been able to progress a clear understanding of the elements of the aggregate wage calculation, however, the interpretation of the award clause for distance payments is one matter that the working party hasn't been able reach a common understanding on. Sir, the aggregate wage calculation is very labour intensive and Trans Adelaide Commissioner Consultant, Mr Errol Muller, to automate it on Excel spreadsheets and to draft detailed working instructions. It is Trans Adelaide's intention at the end of this process to finalise those working instructions and perhaps file them on the Commission's file so that there is clarify, transparency on the entire process.
PN100
Sir, the working party is continuing to meet to finalise deliberations on the aggregate wage and we trust that the working party will be able to finalise all outstanding matters in the next couple of its scheduled meetings, however, as Trans Adelaide foreshadowed during the party's meeting with you in chambers, the working party may require your assistance on other matters if it becomes stuck and we are unable to resolve such matters. Sir, if I could turn to the matter of distance payments. Trans Adelaide will be presenting evidence today to support its current calculation of distance payments and we will be asking you, sir, to confirm that position.
PN101
As part of this evidence, Trans Adelaide will put to you the history and methodology of the current aggregate wage calculation for Trans Adelaide suburban train drivers, Trans Adelaide's interpretation of the distance payments clause, the origins of the clause and precedents, and Trans Adelaide research and support of its current interpretation of the clause and costs involved in the union's claim. We will be submitting a series of documents to support our position. If I can begin with the aggregate wage history and methodology? Sir, as part of structural efficiency and award restructuring and the direct employment of Australian National drivers to Trans Adelaide, Trans Adelaide and the AFULE, the Australian Federated Union and Locomotive Enginemen which is now part of the ARTBIU, discussed the possibility of introducing an aggregate wage for suburban train drivers.
PN102
Over time this came to fruition and the process and formula were documented and agreed. Commissioner Nolan of the Australian Industrial Relations Commission in matter C No 5064 of 1990 inserted a provision for an aggregate wage in the State Transport Authority of South Australia Traffic Operating Permanent Way, Workshops, Miscellaneous and Suburban Train Driving Grades Award 1988 on 15 october 1990. Sir, the purpose of the aggregate wage was and still is to pay drivers no more and no less than what they would be paid under their award.
PN103
The initial draft work instruction for the aggregate wage payable to suburban train drivers of 1989 was refined and agreed on 19 February 1990. Three further changes were agreed and a further instruction was prepared and released, dated 26 April 1991. Trans Adelaide and the ARTBIU have followed this 1991 instruction containing the formula for the aggregate wage calculation for the last 11 years. Sir, if I may table the 26 April 1991 working instruction as an exhibit?
PN104
THE COMMISSIONER: Yes. The union has copies, has it?
PN105
MR HANCOX: Yes, Commissioner.
PN106
THE COMMISSIONER: No objection, Mr Hancox?
PN107
MR HANCOX: No, that is fine.
PN108
PN109
THE COMMISSIONER: Yes.
PN110
MS SMEDLEY: Sir, before I take you through this document, if I can just broadly explain the aggregate wage? It expresses the suburban train driver wage as an annual wage, for example, it applies a percentage component to the base rate of the suburban train driver to compensate for work normally incurring penalty payments. So it equates to what a driver would earn working his or her normal 10 shifts a fortnight in accordance with a posted roster. In addition, leave loading has been built in to the aggregate wage and it is no longer paid separately. So instead of receiving fluctuating wage amounts they get a set amount each week. Sir, if you turn to the third page of the exhibit, dot point 4, marked page 1 at top of the page.
PN111
THE COMMISSIONER: Yes.
PN112
MS SMEDLEY: The percentage component I referred to comprises of shift allowances, rosters Saturday and Sunday work, rostered daily overtime, distance payments, public holiday working, which occurs when the public holiday penalty would be normally paid as a result of a shift finishing after midnight and set workings associated with school holidays and other special events.
PN113
THE COMMISSIONER: So those components there in point 4, they are included in that 15.5 per cent, is that right? Being the point 3 says the annual salary been determined by including a 15.5 per cent component.
PN114
MS SMEDLEY: Yes.
PN115
THE COMMISSIONER: And point 4 says: this component, that is the 15.5 per cent, represents the following.
PN116
MS SMEDLEY: That is correct, that - - -
PN117
THE COMMISSIONER: So presumably there is some science to that 15.5 per cent.
PN118
MS SMEDLEY: Yes, which of course has changed considerably since 1991, that percentage.
PN119
THE COMMISSIONER: Yes.
PN120
MS SMEDLEY: Sir, if I refer you to the fifth page of the document which is dot point 11, page 3, at the top of the page, the set wage that they receive each week only varies if drivers work a public holiday. They receive their normal aggregate wage, plus public holiday penalties for the public holiday as such penalties are excluded from the calculation except where a shift falls into a public holiday, for that portion that extends into a public holiday past midnight. If drivers work daily on rostered overtime or an overtime shift such overtime that is not accounted for in the original rosters on which the aggregate was calculated they would receive the base rate of pay in addition to the appropriate penalties and for New Year Eve working, if it is not included in the original rosters, drivers receive the base rate of pay plus the appropriate penalties in such circumstances.
PN121
So there are some circumstances where payment is made outside the aggregate but the intent is that the aggregate is a costing of the roster as it is posted. The formula used to determine a percentage component of an aggregate wage is provided at the top of the previous page, dot point 5. On the inception that the aggregate was determined that drivers generally work 45 weeks in a week with 7 weeks accounting for leave, so the formula that was struck was 45 weeks in this case, with 7 weeks comprising of 5 weeks annual leave and 2 weeks long service leave. So once the penalties, overtime, etcetera have been costed for the aggregate then those details are fed in to this formula. So you take the award base rate, add on the cost of the penalties, the weekly rate multiplied by 45 and then you add 7 weeks' worth of the award base rate to get a total per annum cost of what a suburban train driver's pay should look like.
PN122
THE COMMISSIONER: Why the 2 weeks long service leave per annum, that is an average, is it? An average right across Trans Adelaide, or how do you get that?
PN123
MS SMEDLEY: There is not a lot of, well, I think we are agreed, there is not a lot of science in some of that original agreement, except that was the arrangement that was struck based on the number of weeks that they considered a train driver would work and Trans Adelaide drivers, I think, are entitled to 9 days long service leave which increases after 15 years service under the Government conditions.
PN124
THE COMMISSIONER: Yes.
PN125
MS SMEDLEY: So there was just - - -
PN126
THE COMMISSIONER: So by the sound of it, I mean, I would take that to mean across - at that time, across the whole of Trans Adelaide staff, that was sort of the average accumulation of long service leave per employee?
PN127
MS SMEDLEY: Yes, entitlement, yes. It wasn't - this original formula, from my understanding, wasn't based on exact figures, it was like "near as", you know, to provide as close as possible wage reflecting what the drivers would actually work.
PN128
THE COMMISSIONER: Yes, and this was, in effect, this instruction was based on the original agreement. It has been updated since?
PN129
MS SMEDLEY: This is the last instruction so - - -
PN130
THE COMMISSIONER: SO this is current?
PN131
MS SMEDLEY: There was an '89 instruction draft which was put in to a formal format in 1990, an agreed format and formula and then three changes were made on this particular one so it was resubmitted in 1991. This hasn't changed until recent meetings under the aggregate working party where we have had a new draft working instruction put together which will be far more detailed than this to update this present one and clarify some of the finer points that have come to our attention in changes with the way we have worked.
PN132
THE COMMISSIONER: Can I just ask also, what is the status of this? This is obviously prepared by Trans Adelaide initially, does this - it is an instruction, what does that mean? The instruction to whom? TO pay office people, is it? Or who does it instruct?
PN133
MS SMEDLEY: Initially my understanding was industrial staff who prepared the aggregate and provided a copy of that to the union to check and clarify. Once agreement was reached then the outcome of that agreement would be passed on to the payroll clerks to implement. SO when this originally was done I understand a copy of this would have been issued to - the actual instruction would have been a reflection of the agreement between the union and Trans Adelaide and then issued to management within Trans Adelaide to ensure its implementation.
PN134
THE COMMISSIONER: No doubt Mr Hancox will tell us in due course, but I would be - well, perhaps you could just tell us now, Mr Hancox, I mean, are these instructions agreed? Before they are issued are they agreed by the union?
PN135
MR HANCOX: My understanding, Commissioner, is that yes they are agreed before the document goes out and both parties reach agreement on the wording.
PN136
THE COMMISSIONER: yes.
PN137
MR HANCOX: It goes out as an instruction as Ms Smedley says to admin staff, payroll staff, HR staff, anyone that has anything to do with calculating the - - -
PN138
THE COMMISSIONER: Yes, so in effect the status of this document is that it is a document agreed between the parties which aims to explain what the aggregate wage is in the award and the agreement and how it is to be applied?
PN139
MS SMEDLEY: That is correct.
PN140
MR HANCOX: Yes, I suppose the best way of describing it, would be an unregistered agreement which was formerly registered as some stage in the award or the certified agreement by a reference.
PN141
THE COMMISSIONER: Yes, and the instruction has continued to apply all the way through until this - well, it still actually applies?
PN142
MS SMEDLEY: Yes.
PN143
MR HANCOX: It still actually applies.
PN144
THE COMMISSIONER: But you are reviewing the document at present and - - -
PN145
MS SMEDLEY: Yes, there is some matters within the instruction which we have agreed to discuss.
PN146
THE COMMISSIONER: Yes.
PN147
MS SMEDLEY: To hopefully result in a common interpretation.
PN148
THE COMMISSIONER: Okay, sorry to interrupt there.
PN149
MS SMEDLEY: Sir, at the end of this process with the formula, it results in a percentage which might be, for example, 120 per cent and that is what a suburban train driver would be paid, 120 per cent of their base wage. These 1991 work instructions also describe payment of leave and superannuation. However, I do not believe these matters are relevant to the matter before you today. Sir, at each major roster change or wage increase, either through the certified agreement or safety net adjustments, Trans Adelaide does a calculation to determine the aggregate wage for suburban train drivers.
PN150
Trans Adelaide looks at how many lines of work are on the roster and costs these lines of work in respect of penalties for shifts, Saturdays, Sunday, broken shifts, overtime, distance payments, and leave loading. Sir, the result is the total value of the penalties and overtime in the roster, together with the leave loading. This is then fed into the aggregate wage formula to product a percentage of the base rate that the suburban train drivers are to be paid. Sir, if I can just explain to you the suburban train drivers classification structure at this point. It is located at clause 32 of the Award.
PN151
I will take you briefly through the classifications. There are seven classifications. A suburban train driver, trainee, is a new entrant undertaking training, and is an employee confined to driving trains within the rail car depot. A suburban train driver, intermediate, is appointed to this position after completing the training as a trainee and is confined to driving trains within the rail car depot and Adelaide station. A suburban train driver, trainee main line, is an employee who has commenced training in suburban train driving over main running lines.
PN152
A suburban train driver, main line, is a qualified employee who has been engaged in suburban train driving over main running lines. A suburban train driver, trainer, is an employee qualified to carry out the on-the-job training of suburban train drivers, and is also called upon to perform driving duties. A suburban train driver, operations coordinator, is an employee who ensures the correct marshalling of trains in the depot for train services and maintenance requirements, and may also be called upon to perform driving duties.
PN153
The last one is suburban train driver, senior driver, who is an employee who undertakes final evaluations and coordinates and monitors training of suburban train drivers. They also have responsibilities in coordinating and monitoring train operations, and may be required to perform some driving duties as well. Sir, I understand that there are currently no employees classified as suburban train driver, trainee, or suburban train driver, trainee main line. Suburban train driver, intermediate, and suburban train driver, main line, receive an aggregate wage calculated at major roster changes or wage increases as I previously described.
PN154
THE COMMISSIONER: So which were those two again?
PN155
MS SMEDLEY: Suburban train driver, intermediate - - -
PN156
THE COMMISSIONER: Yes.
PN157
MS SMEDLEY: - - - and suburban train driver, main line.
PN158
THE COMMISSIONER: Yes.
PN159
MS SMEDLEY: The current aggregate percentage for a suburban train driver, intermediate, is 114.80 per cent, and there are 16 intermediate drivers. That aggregate wage for main line drivers is calculated by taking an average of aggregates for each of the four railway depots, which are Adelaide, Belair, Gawler and Port Stanvac. So, for example, an individual aggregate is calculated for each of the depots from the respective workings that originate from these depots, and then it is averaged. The current aggregate percentage for main line drivers, that is, the combined aggregate, is 120.21 per cent, and there are 116 main line drivers.
PN160
THE COMMISSIONER: How often do those percentages change? Is it every, what, every 12 months?
PN161
MS SMEDLEY: Well, with our current certified agreements, there's, I think, up to two increases per annum and then every year, there is a safety net adjustment which increases the allowances which influences the aggregate percentage. The only other reason would be, perhaps, the introduction of new services in which case there would be an agreement with the union that the roster, or the aggregate would be recalculated again and a new roster would be posted.
PN162
THE COMMISSIONER: Yes, so any time there's, say, a national wage safety net adjustment, for example, that 120.21 per cent, that will - well, how will that - it won't vary because it is 120.21 per cent of the base rate. The base rate varies but the percentage does not, does it?
PN163
MS SMEDLEY: The base rate increases which, in turn, increases the cost - - -
PN164
THE COMMISSIONER: Yes.
PN165
MS SMEDLEY: - - - of overtime and - - -
PN166
THE COMMISSIONER: Yes, it changes everything. I understand, yes.
PN167
MS SMEDLEY: - - - the shifts, Saturday times, Sunday times, so there is a slight increase. With the safety net adjustments, the majority of allowances are still contained in the Award, so all the allowances increase which then influences the aggregate outcome.
PN168
THE COMMISSIONER: Yes, I can see how it does affect everything. Then, of course, I can also see that if a train service is done away with or a new one is added or something, that automatically fixes it so there's got to be an adjustment made then.
PN169
MS SMEDLEY: Yes.
PN170
THE COMMISSIONER: What other circumstances did you say would there be an adjustment? Well, any enterprise agreement?
PN171
MS SMEDLEY: Any sort of major roster change, there would be an agreement with the union to post a new roster and to cost that roster.
PN172
THE COMMISSIONER: Yes, but generally, the rosters don't change all that much. Is that right?
PN173
MS SMEDLEY: I believe they have changed a bit more frequently in recent years with the introduction of new initiatives in our services, and there's been changes in the frequency of services and initiatives which have been driven by our Minister as well. So it probably could be twice a year roster changes compared to looking back over past records. There might have been a lapse of a year or two between a new aggregate calculation.
PN174
THE COMMISSIONER: Yes, okay, thanks.
PN175
MS SMEDLEY: Sir, the suburban train driver, trainer, and suburban train driver, operations coordinator, receive the same aggregate percentage as each other, and this currently is 125.65 per cent, but this rarely changes given the small number of lines of work involved in the calculation. There are three trainers and five coordinators.
PN176
THE COMMISSIONER: Yes.
PN177
MS SMEDLEY: The suburban train driver, senior drivers, also are paid an aggregate wage, currently 113.25 per cent, but this rate rarely changes as, I believe, there are only three lines of work involved. There are three senior drivers so, in effect, for major roster changes, it is really only the intermediate main line, trainers, and operation coordinator aggregates which are affected.
PN178
THE COMMISSIONER: Yes.
PN179
MS SMEDLEY: Sir, most importantly out of all of that, the distance payment affects only the main line drivers.
PN180
THE COMMISSIONER: Sorry, say that again? The distance - - -
PN181
MS SMEDLEY: Payment only affects the main line drivers, so there's drivers based at our four depots, Adelaide, Belair, Gawler and Port Stanvac.
PN182
THE COMMISSIONER: Right.
PN183
MS SMEDLEY: Sir, if I might table a set of documents that comprise the aggregate wage calculation for Trans Adelaide suburban train drivers, main line, for 30 September 2002, this current calculation has not yet been implemented due to the matter before you today being challenged by the ARTBIU. However the parties are agreed that the 30 September calculation is appropriate for the purpose of demonstrating the content and complexity of the aggregate wage calculation to you.
PN184
THE COMMISSIONER: It is, in effect, Trans Adelaide's proposal?
PN185
PN186
MS SMEDLEY: Sir, looking at the cover sheet or the control sheet, as it is called, up in the top left-hand corner is the weekly rate wage which is the current certified agreement rate for a main line suburban train driver. Also shown is the hourly rate, converted to minutes, and then the rates, current rates, for allowances for am/pm, night, and late ..... It then shows the aggregate wage calculated from the sets which are attached for each of the depots, so it shows the dollar amount for Adelaide depot, for example, of 1014.38 with an aggregate of 122.52 per cent. Then it shows the combined aggregate wage which, as I explained before, an average of these depots and that is taken by taking the highest and the lowest percentage and dividing by 2.
PN187
Beneath all that is costing data for the depots which, I don't believe, is relevant to the matter today. Probably more important is to take you through the calculations of the sets on the next sheet. At the top is class 5, Adelaide, Monday to Friday. Down on the very left-hand column: schedule numbers, the numbers of the different sets. Sorry about the size of the print, we were attempting to get everything on one page. Across the top, at the - - -
PN188
THE COMMISSIONER: What do you mean by "a set," by the schedule numbers of different - - -
PN189
MS SMEDLEY: So you will have 1750, for example, and probably my colleagues here could explain what that particular one is, but that would be a run from one point to another so it would be a certain set that a train driver has to travel to within a given time.
PN190
MR HANCOX: It is not line, it is just schedule for a day, line is for the whole fortnight.
PN191
MS SMEDLEY: Okay. So next to that schedule number is the sign-on time and the sign-off time and the total minutes worked. Also there is a distance penalty column which will show the total distance travelled. For example, against 1754, about half-way down, there a distance of 210 kilometres travelled and 209 kilometres was reached at 1723. Then it goes into your broken shift penalty and allowances so it automatically calcs how many minutes apply from that particular schedule. Then costs in dollars in the middle section of the spreadsheet. So the spreadsheet has been set up by Mr Muller to fully automate this calculation so that using award perimeters it can automatically calc what penalties and overtime apply and then the data is costed and then that is all fed into formulas which arrive at the aggregate percentages on the control sheet.
PN192
So in past calculations have been done manually and it has taken up to three days, so this has made quite a vast difference to how we undertake this now. Then that is just repeated for the different schedules, you have got: Monday to Thursday, Monday to Friday, Friday only, Saturdays, Sundays and then it repeats that for each of the depots, the four depots. Then the data is summarised in the front and we arrive at the percentages. This spreadsheet is relatively new in Trans Adelaide and I believe it has probably been used for two or there aggregate calculations. We have spent some time with the union verifying its accuracy to ensure that they are comfortable with us using this particular format and we are still ironing out one or two minor alterations but I believe we are pretty close to both parties being comfortable with using this for future calculations.
PN193
Sir, if I may now turn to Trans Adelaide's current interpretation of the Distance Payment clause. Sir, in the acceptance of the aggregate a few shifts contained a distance greater than 209 kilometres, there was only two in 1991, two in 1997. However, since 1997 the number of shifts containing 209 kilometres have increased considerably and there was 33 in July of 2001, 41 in September of 2002. Consequently, the application of this payment has come under scrutiny. Trans Adelaide and the union now each have a different interpretation of how this clause should be applied. If I could provide you - - -
PN194
THE COMMISSIONER: Are you going at some stage talk about what the magic of 209 is? I mean, that is the one thing that has not changed throughout all these years.
PN195
MS SMEDLEY: No.
PN196
THE COMMISSIONER: 209 kilometres, I mean, why not 200 or 210? Is there some reason for that? It is probably irrelevant to these proceedings, I have got to say, but I am intrigued?
PN197
MS SMEDLEY: Yes, most people who have a long history in industrial areas don't recall the specifics of the 209 that I have been in contact with. I know that it is a figure that has also been used interstate so it must have had some significance when it was brought in. I understand the suburban distance payment came in after the intrastate distance payments. So that is what one of my industrial counterparts has alluded, whether that is correct or not, I don't know.
PN198
THE COMMISSIONER: Again, these questions that I'm asking, Mr Hancox, have you got anything to say about this, you might in your submission? I'm also interested to know the philosophy behind the distance payment, what is the philosophy behind it? It is a fatigued thing or - - -
PN199
MS SMEDLEY: My understanding is, from the steam-engine days, and it is to do with travelling a long distance was harder work for the driver in terms of getting the engine prepared and maintaining it so it was a reward for hard work basically. Like, 209 kilometres in the initial days of when this would have come into play, and I understand it is back in the 1920s is the origins of it, it would have been very rare to have been able to travel that far, so it was a reward for hard work. Sir, if I could provide you with some time-line examples as an exhibit to explain Trans Adelaide's current interpretation of distance payments.
EXHIBIT #TA4 TRANS ADELAIDE'S INTERPRETATION OF DISTANCE PAYMENTS IN CLAUSE 33.3: RAIL INDUSTRY TRANS ADELAIDE AWARD 2002 DATED NOVEMBER 2002
PN200
MS SMEDLEY: Sir, would you like me to re-read the Distance Payment clause at this point before I go through the examples?
PN201
THE COMMISSIONER: Yes, which is?
PN202
MS SMEDLEY: 33.3.
PN203
THE COMMISSIONER: Yes, it would be useful.
PN204
MS SMEDLEY: 33.3.1:
PN205
A suburban train-driver will be paid a minimum for 8 hours on completion of a distance of 209 kilometres in any one shift.
PN206
33.3.2:
PN207
A suburban train-driver will be paid at the rate of time and a half for all time worked after completion of a distance of 209 kilometres in any one shift. Such time to stand alone and not be included in a computation of overtime.
PN208
So we look at my first example, the distance of 209 kilometres has been struck at 6 hours and the driver is working a 9-hour shift so there is a component overtime between 8 and 9 hours. Trans Adelaide pays the distance payment from the time a driver reaches 209 kilometres to the end of the shift. In other words, for all time worked. So from that 6 hours to 9 hours Trans Adelaide pays a distance payment based on the time and a half. So between 6 and 9 hours is 3 hours work. Trans Adelaide pays a penalty of 1.5 hours. So Trans Adelaide is saying: there's 9 ordinary hours in a shift worked, 1.5 hours distance payment, so that between 6 and 9 hours they are receiving time and a half.
PN209
Also, for overtime an additional penalty payment of half an hour for a total payment of 11 hours.
PN210
THE COMMISSIONER: So what do you pay for the first 6 hours? How many hours pay for the first 6 hours?
PN211
MS SMEDLEY: Well, looking at the whole shift Trans Adelaide would say: a driver has worked 9 hours so they have got 9 ordinary hours payment.
PN212
THE COMMISSIONER: Yes.
PN213
MS SMEDLEY: Between 6 and 9 hours is work that exceeds 209 kilometres so they receive an additional half-time penalty. Between 8 and 9 hours is overtime so they receive an additional half-time penalty. So that between the hours of 6 and 9 they are receiving time and a half. Also, between the hours of 8 and 9 they are receiving time and a half for overtime.
PN214
THE COMMISSIONER: Well, that are receiving time and a half on time and a half?
PN215
MS SMEDLEY: It is, except it is all underpinned by the - there is an issue with penalty on penalty, they in effect receive double-time for that hour.
PN216
THE COMMISSIONER: Okay, so for the 9 hours Trans Adelaide is saying: for the 9 hours they receive 9 hours ordinary pay to start with, they then receive 3 hours at time and a half.
PN217
MS SMEDLEY: Three hours at half-time penalty.
PN218
THE COMMISSIONER: At half, they get a half a 50 per cent penalty, all right.
PN219
MS SMEDLEY: Yes.
PN220
THE COMMISSIONER: Then in that last hour, the 8th to the 9th, they in effect get 100 per cent penalty?
PN221
MS SMEDLEY: That is correct, yes.
PN222
THE COMMISSIONER: Okay.
PN223
MS SMEDLEY: Looking at the next example, which should read: Example B. This is on a shift that is less than 8 hours. So for a 7-hour shift - and this Trans Adelaide says again: there's 7 ordinary hours so they are paid 7 hours, and between 6 hours, when they reach 209 kilometres and the end of the time worked, which is 7 hours, they receive half-time penalty for distance payment, so a total of 7.5 hours. However, the award states that: a minimum of 8 hours has to be paid, so therefore they would receive 8 hours for that shift. In the last example, which is just a straight 8-hour shift, again, reaching 209 kilometres at 6 hours, that should read: Example C, Trans Adelaide would pay 8 ordinary hours and one hour of half-time distance payment for the 2 hours between 6 and 8, so a total payment of 9 hours.
PN224
Again, because 8 hours have been worked in that shift in which a driver reached 209 kilometres the minimum required in the award has been paid.
PN225
THE COMMISSIONER: Just let me take that in for a minute. The 1-hour distance payment there in example C, is that in effect 2 hours at a 50 per cent penalty?
PN226
MS SMEDLEY: Yes, at half-time penalty.
PN227
THE COMMISSIONER: Yes, so two lots of a half equals 1, therefore payment is 9 hours?
PN228
MS SMEDLEY: Yes, that is correct.
PN229
THE COMMISSIONER: Okay. You could do a PhD thesis on this you know.
PN230
MS SMEDLEY: I feel like I already have.
PN231
THE COMMISSIONER: Yes, it is high in mathematics.
PN232
MS SMEDLEY: Sir, when applying the Distance Payment clause the following award clauses also need to be considered: the definition of a shift, which is clause 10.10; the aggregate wage clause, 33.2, and I will take you through these in more detail, which I have already read out in my submission. The extra rates accumulative clause 15.8, and this clause in turn refers to clause 16.6: Public holidays and clause 27.3: Special rates. An overtime clause, 33.4 and payment for Saturday and Sunday clause, 33.5.
PN233
THE COMMISSIONER: They are all references to the award?
PN234
MS SMEDLEY: Yes. Sir, I would not like to analyse the distance payment clause, 33.3, in detail.
PN235
THE COMMISSIONER: Yes.
PN236
MS SMEDLEY: I have previously read to you the aggregate wage clause which states that distance payments form part of the allowances and penalties that are averaged to determine an aggregate wage. 33.3.1 of the distance payment clause commences with:
PN237
Suburban train driver shall be paid...
PN238
Sir, the definitions for suburban train driver classifications are contained at clause 32.1 in the award and I have already mentioned distance payments only apply to main-line drivers who are driving our main running lines. Parties, I believe, are clear about to whom this clause applies.
PN239
THE COMMISSIONER: Yes.
PN240
MS SMEDLEY: Sir, 33.1 then states drivers shall be paid a minimum of 8 hours on completion of a distance of 209 kilometres in any one shift. Sir, the definition of a shift is provided at clause 10.10 in the award. A shift is defined as:
PN241
A turn of duty during which actual work has been performed and includes compulsory attendance at examinations, inquiries and hearings where such attendance is of at least 4 hours duration.
PN242
Sir, we say you look at a shift to see 209 kilometres have been travelled and if the answer is yes, then you are ensured that a minimum of 8 hours is paid for that shift. Sir, 33.3.2, distance payment clause states:
PN243
A suburban train driver will be paid at the rate of time and a half for all time worked after completion of a distance of 209 kilometres in any one shift.
PN244
Sir, we say an additional half time is paid to the end of the shift, in other words, ordinary hours plus half-time penalty and after 8 hours a driver is also paid time and a half for overtime. In other words, overtime is treated in the normal manner. Sir, in respect of paying a penalty on penalty, extra rate not cumulative, clause 15.8 states:
PN245
Extra rates in the ward with the exception of those at clauses 16.6 and 27.3 are not cumulated so as to exceed a maximum of double the ordinary rates.
PN246
So the exception in clause 16.6, which relates to public holidays, when payment of double time and a half may occur if working overtime on a public holiday, for example, and clause 27.3, which relates to special rates for metal trades persons which I do not believe is relevant to this matter, therefore payment cannot exceed double time unless in certain circumstances on a public holiday for that portion of a shift where a 209 has been reached in the overtime portion.
PN247
If I can repeat, that second part of the distance payment clause again, suburban train driver be paid at the rate of time and a half for all time worked after a completion of 209 kilometres in any one shift and such time to stand alone and not be included in the computation of overtime. Sir, the emphasis is on time worked after reaching 209 kilometres not being included in the computation of overtime. As previously submitted, Trans Adelaide has paid overtime for time worked after 8 hours in a shift where 209 kilometres has been travelled. Trans Adelaide has received external advice that suggest this is incorrect and that a driver should receive just time and a half for all time worked after reaching 209 kilometres and I will turn to this matter shortly.
PN248
Sir, 33.3.2 also states that such time should stand alone, not being included in computation of overtime - reference to overtime again at clause 33.4.4. Overtime is paid on a daily or fortnightly basis, whichever alternative gives the greater amount. On ordinary shift overtime is paid after 8 hours but not in excess of 11 hours at the rate of time and a half. Sir, also to be considered, when determining the application of the distance payment clause is the impact of 209 kilometres being travelled on a Saturday or Sunday.
PN249
Sir, clause 33.5 explains payment full-time on duty on a Saturday or Sunday and there are implications to consider in respect of penalty on penalty when distance payments are made on a Saturday-Sunday or as mentioned before, public holiday. Sir, I wish to provide evidence that Trans Adelaide calculates distance payments in the way I described in exhibit TA4. If I can refer you to the previous exhibit, TA3, comprising of 30 September 2002 aggregate wage calculations for main-line drivers.
PN250
If you turn to the workings for Adelaide, Monday to Friday, which is the first page of the schedules, schedule 1724, about a third of the way down on the left, contains a distance payment. At the left of the page you will note the shift commenced at 0628 and finished at 1436. Total minutes worked was 488 which means there were 8 minutes overtime, 480 minutes in a normal shift. A total of 210 kilometres were travelled and the 209 kilometres were reached at 1418 which means there was 18 minutes to go in the shift after 209 kilometres was reached.
PN251
That 18 equates to 9 minute payment of distance payment, which is in the next column, there is a distance payment of 9 minutes. Also, further on, under the overtime column is 8 minutes, which, as stated earlier 8 minutes overtime, and that gets paid at the rate of time and a half which equates to the $4.36 in the column headed: OT by 1.5.
PN252
THE COMMISSIONER: Hang on, which one is that?
PN253
MS SMEDLEY: A bit further along.
PN254
THE COMMISSIONER: OT by 1.5, yes, got it.
PN255
MS SMEDLEY: So there is a total of $4.36 and if that was calculated out that is 8 minutes by time and a half.
PN256
THE COMMISSIONER: Yes.
PN257
MS SMEDLEY: So using this as an example, Trans Adelaide has paid half-time penalty for distance payment after the 209 kilometres was reached to the end of the shift and Trans Adelaide has also treated overtime in the normal manner, which I explained in a previous exhibit. Sir, now having outlined Trans Adelaide's interpretation of the distance payment clause to you, what we would have to see from the employer point of view is that there is something significantly wrong in the way we have determined it. If I can now perhaps turn to the origins of the distance payment which we have covered briefly and some of the precedents.
PN258
Sir, as I previously mentioned, as part of award restructuring efficiency, Part 5, the Suburban Train Drivers was inserted into the State Transport Authority of South Australia Traffic Operating Permanent Way Workshops, Miscellaneous and Suburban Train Driving Grades Award of 1988. The distance payment clause was in Part 5 of that award. During the - which was a consolidation of the award and the aggregate wage was also introduced at that time into the award. This all occurred before Commissioner Nolan on 15 October 1990.
PN259
The present Rail Industry Trans Adelaide Award 2002 is part of the award simplification processes superseded the 1998 award, however, the distance payment clause has remained unchanged throughout this time. Sir, Trans Adelaide has consistently applied its interpretation of the existing distance payment clause, which we have traced back to award conditions in metropolitan rail since 1978, since it was inserted into our Trans Adelaide award.
PN260
This clause appears to have originated from the Locomotive Enginemen's Australian National Railways Award of 1978 and that is a word for word copy from that award. Sir, I wish to demonstrate to you that Trans Adelaide has consistently applied its interpretation of this clause since the inception of the aggregate wage for suburban train drivers and would like to table as an exhibit, an example of a distance payment calculation from 1991.
PN261
THE COMMISSIONER: I think that is at TA5, I think that is 5, isn't it, TA5, which is an example of distance payment calculations from 1991, Trans Adelaide document exhibit TA5.
PN262
MS SMEDLEY: Sir, if you turn to the page with page 5 at the top, about half the way through the document, this is one of the early aggregate calculations for Adelaide depot and part-way down there is a mileage allowance calculation and there were two schedules which had mileage greater than 209 kilometres travelled. One was - had 31 minutes in addition travelled, one had 24 minutes. Taking this calculation, if you convert 31 minutes to an hour, in other words divide by 60 and multiple it by half time, you get .25, that is then multiplied by five shifts in a week to give you 1.25 hours payment for distance payment for that particular schedule.
PN263
THE COMMISSIONER: The multiplier there of five, that is the number of shifts per week?
PN264
MS SMEDLEY: Yes. So in this particular calculation the cost of penalties for a week to add to the weekly base rate.
PN265
THE COMMISSIONER: Just one moment. Yes, okay.
PN266
MS SMEDLEY: So what that is demonstrating is Trans Adelaide has taken the minutes travelled since 209 kilometres and applied half-time distance payment to those minutes to arrive at the - then multiple by five to arrive at 1.25 hours per week.
PN267
THE COMMISSIONER: This particular calculation dates back to when?
PN268
MS SMEDLEY: This is 1991. It was a re-calculation due to the establishment of rosters for suburban train drivers at Lonsdale depot.
PN269
THE COMMISSIONER: Yes.
PN270
MS SMEDLEY: Sir, I have a further example from 1997 which continues to demonstrate Trans Adelaide's consistent approach in apply its interpretation of the distance payments clause. If I can table an aggregate wage calculation for main-line drivers for 1997.
PN271
THE COMMISSIONER: We will mark that. I take it, Mr Hancox, there is no objection to these? If there is, just interject. I take it there is no objection
PN272
MR JAHANGIRI: We are all lost.
PN273
MR HANCOX: No, not at all.
PN274
MR JAHANGIRI: we are all lost about those sort of things but we let them finish and after that - - -
PN275
PN276
MS SMEDLEY: Sir, if you turn to about the eighth page within this exhibit, actually it does not have a heading but it has schedule number 1950 at the top of the page, on the left-hand side. Looking down that left-hand column, schedule 1911 which shows it commenced at 1330 and finished at 2207 and a total of 517 minutes is the total of the shift. So 37 minutes overtime was worked in this particular one. A total distance of 251 kilometres were travelled and the 209 kilometres were reached at 1920, which means there is 167 minutes remaining of the shift after that 209 kilometres was reached. Again, Trans Adelaide applied half-time payment to that 167 minutes to give a distance payment of 83.5 and to the far right of that sheet, Trans Adelaide treated overtime in the normal manner, there is 37 minutes overtime with a penalty of 18.5 so that all up equates to time and a half of the overtime.
PN277
THE COMMISSIONER: Yes, I am with you. 37 minutes at 50 per cent is 18.5, yes.
PN278
MS SMEDLEY: Sir, the calculation - we have laid out some formats of change from '91 to '97 to our current one of 2002 but Trans Adelaide's application for the distance payment has clearly remained unchanged during that time. In other words, half-time penalty paid for all time worked beyond 209 kilometres with overtime after 8 hours treated in the normal manner. Sir, when aggregate wage calculation prepared by Trans Adelaide it is sent to the ARTBIU who checks it and agrees to the percentage to be applied to the driver's base rate.
PN279
The union has accepted the current calculation of distance payments for the last 11 years and has accepted past aggregate wage calculations containing this calculation and we say on this basis that Trans Adelaide's interpretation of the clause should remain unchanged. How we treat it today is how we have treated it for the last 11 years. Sir, I would now like to table a series of exhibits comprising reports from external independent consultants that were commissioned to assist Trans Adelaide in determining the appropriate application of the distance payment clause.
PN280
THE COMMISSIONER: I will make this an exhibit as various documentation relating to the issue of application of distance payments and aggregate calculations.
PN281
MS SMEDLEY: Sir, this is the first of three reports which I will table as exhibits. This particular one is from EMA Consulting, who are industrial relations advisers. Sir, if I can just say, Mr Rod Reid, is an executive director of the EMA Consulting but he is also a former industrial relations adviser of Australian Nation which I previously mention is where we believe the distance payment clause originated from. His report, in part, refers to offsetting of overtime against any make-up paid as a result of the distance payment and this element is not relevant to the matter before you today. However, what I have done is highlighted certain passages of his report and I will quote them now.
PN282
Firstly, the distance payment clause, parts A and B, which was from 1988 award and is now 33.3.1 and 33.3.2 in the 2002 award, is quoted in his report and beneath it is an analysis of the clause and I quote:
PN283
Upon reading part A above, it becomes relevant that this section is to ensure the minimum payment for any shift where 209 kilometres is worked is 8 hours.
PN284
What it does not say is: A suburban train driver shall be paid as for 8 hours at the time of completing 209 kilometres in any one shift or other words to denote that at 209 kilometres 8 hours is application and any time thereafter is counted in addition to the 8 hours. The report, on page 3, provides examples of the aggregate wage calculation that support Trans Adelaide's current interpretation of distance payments, namely an additional half-time penalty is paid for all time worked after 209 kilometres with overtime treated in the usual manner.
PN285
THE COMMISSIONER: Yes. I should just indicate for the record that in fact exhibit TA7 is simply the letter from EMA Consulting to Trans Adelaide dated 28 June 2001, it does not contain any other correspondence. I thought it did, exhibit TA7.
EXHIBIT #TA7 LETTER DATED 28/06/2001 FROM EMA CONSULTING TO TRANS ADELAIDE
PN286
MS SMEDLEY: Sir, if I may now hand up another exhibit which is a report by Mr Errol Muller, an industrial consultant which was prepared on 20 August 2001 and it was tabled as a discussion paper at the aggregate working party meeting on 31 May 2002. Sir, Mr Muller was also commissioned to automate the aggregate wage calculation as previously mentioned.
PN287
THE COMMISSIONER: What is Mr Muller's background?
PN288
MS SMEDLEY: I understand he use to work at WorkCover as an industrial manager or human resources manager.
PN289
THE COMMISSIONER: So he is now what?
PN290
MS SMEDLEY: He is consulting now.
PN291
THE COMMISSIONER: An industrial relations consultant?
PN292
PN293
MS SMEDLEY: Again, sir, for your convenience, I have highlighted certain clauses within his report and I read them to you now.
PN294
THE COMMISSIONER: What was he asked to - I mean, this is a report but what was the context of it?
PN295
MS SMEDLEY: Mr Muller was commissioned by Trans Adelaide to review the entire aggregate wage process that we had in place because it was laborious and it was taking, as I said before, 3 days to produce a calculation and then it would take about the same amount of time for someone to check them and we wanted a process that was more transparent for everyone involved in the calculation. He automated the spreadsheets on the Excel spreadsheets which you have already seen. He documented draft working instructions which are an update of the original 1991 working instructions which are on the table for Trans Adelaide or the aggregate working party to review once we have bedded down all the matters that we are discussing.
PN296
He also looked at issues which the drivers and the union raised during Enterprise Bargaining and did some research into those issues and the aggregate working party has used his report as a basis for progressing those matters and trying to reach common ground on them.
PN297
THE COMMISSIONER: Yes, so this is just a - it is part C of his report?
PN298
MS SMEDLEY: Yes - clause 1 relates to the distance payments, the matter before you today.
PN299
THE COMMISSIONER: Yes, okay.
PN300
MS SMEDLEY: If I can quote Mr Muller at clause 1.62 of his report he says:
PN301
To interpret subclause (a) -
PN302
and again, he is referring to the old 1988 clause -
PN303
such that at the time of reaching 209 kilometres 8 hours have been deemed to have been worked or have been reached would mean that all time after that would technically be a kind of overtime rather than a penalty. That appears to be inconsistent with the spirit of subclause (b).
PN304
At 1.6.3 he adds:
PN305
The precise wording of subclause (a) really only means that irrespective of how far short of 8 hours a shift falls 8 hours of non-overtime should be pay should be paid on reaching 209 kilometres.
PN306
At .1.5 he notes that:
PN307
There is the view by the ARTBIU that the distant payments should be calculated in the aggregate wage system as an additional 1.5 or time and a half penalty because at 209 kilometres the normal pay underpinning the penalty is technically ceased.
PN308
At .167 he adds that:
PN309
To pay distant payment at 1.5 times extra would be to construe the payment as a kind of overtime rather than a penalty. Also it is the convention of this award to describe penalty in gross terms; eg, Saturday time as time and a half. As such he believed the current rate as paid by Trans Adelaide is correct.
PN310
He adds:
PN311
Generally speaking, current practise seems technically correct. However, in summary the clause contains genuine ambiguity in the way the two subclauses can be interpreted in relation to overtime. Also as practised in the past it has been accepted and has been consistent there has been no error or underpayment as such.
PN312
THE COMMISSIONER: Yes.
PN313
PN314
MS SMEDLEY: Sir, again for you convenience I've highlighted certain passages of this report and I will just summarise them briefly. Mr Baker stated that distant payments should be paid at half time penalty for all time worked after reaching 209 kilometres but overtime should not be paid as clause 14B and again he is referring to the 1988 Award for a simplified - specifically excludes time - sorry, specifically excludes it. In other words time worked beyond 209 kilometres should stand alone and not be included in the computation of overtime.
PN315
This is where I referred to before in my submission, there was advice to say that overtime shouldn't be treated in the normal manner and that when you read clause (b) of the Distance Payment clause where it talks about time and a half for all time worked after 209 kilometres and then it says such time should stand alone and not be included in the computation of overtime. His interpretation has been that distant payments should be paid in lieu of overtime.
PN316
On page 4 he tests this interpretation by determining if there is a net benefit to drivers as compared to not having a clause at all for distance payments and demonstrates that a net benefit for example on page 4 and at the top of .75 hours actually exists. He states that the real intent to the distant payment clause was to ensure the payment of a minimum of 8 hours with 209 kilometres reached in a shift less than 8 hours. So in other words for people who travelled a long distance on a shorter shift it was to ensure that they received that minimum of 8 hours.
PN317
THE COMMISSIONER: Where are you reading that from, sorry?
PN318
MS SMEDLEY: That is on page 3 at .2 when he gives an example of a shorter shift and he says:
PN319
This is where the real intent of subclause (a) has application - - -
PN320
THE COMMISSIONER: Yes.
PN321
MS SMEDLEY: Sir, Trans Adelaide has also contacted interstate rail passenger transport providers to determine if like clauses existed in interstate awards or agreements. Trans Adelaide to date has not been able to locate any similar clauses. Mr Colin Shaw of Great Vic and Mr Bruce Larkins of State Rail Authority, both longstanding Industrial Practitioners were of the view that distance payments originated from the days of steam locomotives and were a reward payment for the extra effort required to travel over long distance. There was more effort required by the driver to prepare and maintain a train for a long trip.
PN322
This relevance I guess in its original form has been lost, there is still the element of long distances being travelled. Great Vic no longer pay distance payments but Mr Shaw was of the view that the emphasis was on a reward being paid to those who had to travel a long distance particularly in a short time. As Mr Baker emphasised in his report, the intent of the first part of a distant payment clause becomes clear when you consider 209 kilometres being travelled in a shift of less than 8 hours duration.
PN323
Sir, Trans Adelaide also prepared a report dated 30 September 2002, titled "Trans Adelaide's Recommendations on Aggregate Wage Calculations to the Aggregate Working Party" and this report was tabled to the Working Party at a meeting on 1 October 2002. The aim of the report was to gather all of the items that we had discussed within the party and try and put the discussions and outcomes in some sort of perspective and to list the issues, to list the research that Trans Adelaide had undertaken and also to detail recommendations by Trans Adelaide to the Working Party as a discussion document so that we could progress the issues.
PN324
It provides a summary of the issues in respect of distance payment and it really just covers the main points of my submission due today but if I may table it to you as an exhibit?
EXHIBIT #TA10 REPORT PREPARED BY MS SMEDLEY DATED 30/09/2002 TITLED: TRANS ADELAIDE RECOMMENDATIONS ON AGGREGATE CALCULATIONS TO THE AGGREGATE WORKING PARTY
PN325
MS SMEDLEY: Sir, at clause 2 in that report it pertains to distance payments, one thing I should make note of is when looking at the example in clause 2.2 how you describe payment of distance payment for a shift of 9 hours, I guess is done slightly differently but with the same result. In previous examples to you I explained 9 ordinary hours pay for a 9 hour shift and then half-time penalty for for all time after 209 and then half-time penalty for over-time. This has the same net effect - - -
PN326
THE COMMISSIONER: Yes.
PN327
MS SMEDLEY: - - - it is just 8 hours ordinary time with half-time penalty for distance payment but the over-time portion time and a half.
PN328
THE COMMISSIONER: A different way of expressing it, yes.
PN329
MS SMEDLEY: Yes. Sir, if I may turn to the costs involved in the ARTBIUs claim. Should you determine that there interpretation of the clause is appropriate then Trans Adelaide has calculated that the aggregate percentage will increase by 1.78 per cent for main line drivers which equates to $14.73 a week with an annual wage increase cost of $89,000 to Trans Adelaide. Sir, I would like to table as an exhibit a table calculating costs to Trans Adelaide in respect to this matter.
PN330
THE COMMISSIONER: I'm happy to receive it but are you saying it should persuade the Commission? Is Trans Adelaide saying it should persuade the Commission or be a relevant factor in determining what this things means? My understanding is that what I'm called on to arbitrate he is the meaning of the clause.
PN331
MS SMEDLEY: It is only relevant to the Commission, I guess in you having an understanding of its importance to the drivers in terms of a monetary value. Naturally it has quite a considerable impact on their take home pay. So it is important for the Commission to understand that it has been one of the more emotive issues and more contentious issues and more contentious issues that we have had to deal with probably for - because of the cost issue involved. So it gives you a perspective of what that means.
PN332
THE COMMISSIONER: Is this part of the context I mean I - that - that - I mean to me it is irrelevant to the issue of the interpretation of the clause?
PN333
MS SMEDLEY: That is correct.
PN334
THE COMMISSIONER: And unless you have got any objections, Mr Hancox, I will accept it in on that basis just as part of the general context. I mean there has been a lot of conjectural material but it won't persuade me in terms of the interpretation of the clause as such.
PN335
PN336
MS SMEDLEY: I also understand we are putting the cart before the horse in some respects before you here sir, because you have yet to hear the union's interpretation of the clause and we base these costs on a known understanding of their interpretation so they will duly fill you in on what that is. Sir, the column highlighted in yellow just shows the change in the aggregate percentage for the main line drivers compared to the current aggregate percentages and dollar amounts in the columns highlighted in grey.
PN337
And as I said before they are not a concern to Trans Adelaide but they do give you a understanding of why this issue has been debated hotly by the union given the outcome that could possibly arise from it.
PN338
THE COMMISSIONER: Okay.
PN339
MS SMEDLEY: Sir, Trans Adelaide also recognises that the number of shifts containing distances greater than 209 kilometres may change in the future, they may increase or they may decrease, depending on for example the introduction of new services or faster trains or possibly outcome in the rostering principles which are currently I understand, being put together. So it is important that you understand that there may be changes that go up or down so I guess when we table to you costs associated with this, the impact on the actual driver's wage you know, is fluid, it is - - -
PN340
THE COMMISSIONER: I understand.
PN341
MS SMEDLEY: - - - not set. In closing, Trans Adelaide and the ARTBIU are seeking a final decision from you as a private arbitrator in the determination of this clause on distance payments so that we have a common interpretation. Sir, Trans Adelaide has demonstrated to you that it has consistently applied the clause - a current interpretation of the distance payment clause for the last 11 years and the union has accepted this interpretation in past aggregate wage calculations. External consultants have all referred to some ambiguity in the clause but technically support Trans Adelaide's application.
PN342
Industrial counterparts have confirmed the intent of the clause in so much it was to pay a reward for hard work over long distances particularly where this distance is travelled in a shorter period of time. Trans Adelaide thanks you, sir, for your assistance in determining this matter and that completes my submission. The union will now put forward their views on the distance payment clause interpretation and I reserve Trans Adelaide right of reply on hearing those views. Thank you, sir.
PN343
THE COMMISSIONER: Yes, thank you. Mr Hancox?
PN344
MR HANCOX: Yes, if the Commission pleases.
PN345
THE COMMISSIONER: Mr Hancox, how long are you going to be?
PN346
MR HANCOX: Sorry.
PN347
THE COMMISSIONER: How long are you going to be? I just wondered if you might want a 5 minute adjournment?
PN348
MR HANCOX: Yes, that might be an idea, I will only be about 20 minutes but then I will rely on Mr Jahangiri to - - -
PN349
THE COMMISSIONER: It might be useful, there is a lot of material there and look, just for 5 or 10 minutes - 10 minutes and we will just have a short adjournment, yes.
SHORT ADJOURNMENT [3.40pm]
RESUMED [3.52pm]
PN350
THE COMMISSIONER: Now, Mr Hancox?
PN351
MR HANCOX: Certainly, thank you, Commissioner. From the union's point of view, sir, we submit that it is only recently - at least within the last 3 years or so that these particular clauses have attracted any attention in relation to how the clauses are interpreted. Prior to this, instances of suburban train drivers working beyond the 209 kilometres were a rarity rather than the norm. It has only been since the advent of the Trans Adelaide Rail Operations Certified Agreement of '97 and its current replacement by the current Trans Adelaide Train Operation Certified Agreement of 2001 that these particular clauses have caused some concern.
PN352
You will recall no doubt that during those negotiations which led to the parties reaching an agreement in 2001, the aggregate wage component was a contentious issue between the parties to the extent that a clause relating to the aggregate wage and I refer of course to clause 9.1 which contains the rates of pay for the classifications covered by this agreement and notably the notes numbered 1 to 4 under the heading "Aggregate Wage" on page 6 of the current agreement notes that the parties will work towards agreement on the interpretation of the award for calculating the aggregate wage within 12 months of the date of certification of this agreement.
PN353
Sir, that all came to past because of a letter written by Mr Jahangiri to the then manager of Trans Adelaide's rail system Mr Jim Sandford, questioning the calculation of the aggregate. That was how that present impasse began so to speak. Do you have a copy of that letter, your Honour?
PN354
THE COMMISSIONER: Why has that 209 kilometres thing only been a issue in recent years? I mean - - -
PN355
MR HANCOX: Sorry?
PN356
THE COMMISSIONER: Why has the - why has it only been in recent years that the 209 kilometres is being reached, you know, on a regular basis.
PN357
MR HANCOX: Well, prior to that - prior to that, sir, the train drivers were regularly rostered for 8 hours per day and it was a rarity that they - because of the certain restrictions in the award that related to travelling over the same line over a certain number of times it was very, very rare that the distant payment ever came into being. It happened on a couple of occasions when drivers would work over-time on top of an 8 hour shift and perhaps go beyond the 209, I think that is supported by one of the exhibits that Ms Smedley put up a little bit earlier that showed that there are a couple of trains in '91 and a lot more in '97 and a lot more in '99 and even more today.
PN358
It is those changes to the - those award conditions which have led to this - this exceeding the 209 kilometres on more occasions because I suppose basically the drivers are being asked to do more and more work in a compressed amount of time.
PN359
THE COMMISSIONER: Yes.
PN360
MR HANCOX: In other words drive more trains. The clause that I refer to in the '97 Agreement and I've got a copy of that here, sir, if you would like to have a look it, it varied the conditions of that particular clause referring to suburban train drivers also meant that the Trans Adelaide could use their make-up time in calculating the aggregate.
PN361
THE COMMISSIONER: So this clause - - -
PN362
MR HANCOX: Is 3.3.
PN363
THE COMMISSIONER: - - - 3.3 is it? This is a 1997 Agreement, I don't think we need put this in as an exhibit, it is part of the public record in effect?
PN364
MR HANCOX: Yes.
PN365
THE COMMISSIONER: So clause 3. - - -
PN366
MR HANCOX: 3.3 suburban - - -
PN367
THE COMMISSIONER: Yes, yes.
PN368
MR HANCOX: - - - train drivers on page 3 and that clause reads at 3.3:
PN369
And on calculation of overtime in the suburban train drivers aggregate to be changed from the current daily or fortnightly calculation to assist in where make-up pay is reduced from the over-time paid unless specified below.
PN370
And those clauses below describe how that make-up time is used. Subsequently, sir, that clause was taken out of the 2001 Agreement because it created quite a bit of controversy within the suburban train driver grades, it had a fairly detrimental effect on the the aggregate, lowering it quite considerably. So I think that is the history of the clause, sir, you can actually trace it back as Ms Smedley indicated, to the Locomotive Enginemen's Australian National Award of 1978 and I've got a couple of extracts on that award.
PN371
In particular clause 20 which talks about distance payments and this is where the Trans Adelaide clause emanated from. And if you look at page 14, that is the second page of that particular exhibit clause (e):
PN372
The provisions of this subclause are to be applied to a locomotive engineman on any second engine...
PN373
Rah, rah, rah. 2(a):
PN374
A locomotive engineman driving a suburban train be paid a minimum of 8 hours on completion of a trip of 209 kilometres in any one shift.
PN375
That clause, sir, apart from referring to a locomotive engineman, is exactly the same wording as appears in the 1988 award which subsequently in the stripping back process became the 2001 Award. The only reference that I can find prior to that to this particular provision, sir, goes back to the old SAR Miscellaneous Grades Award of 1960 I believe it was and I haven't been able to locate a copy of that, so I can't provide one of those to the Commission but I - it is exactly the same as that clause which appears in the AN Award of 1978.
PN376
THE COMMISSIONER: Yes.
PN377
MR HANCOX: I think it is fair to say that up until today, I thought there was no disagreement between the parties on clause 3.3.1 but rather 3.3.2 was the contentious clause. It appears that Trans Adelaide's point of view is a little bit different from the union's on the interpretation of that clause in two particular areas, sir. One is that the clause as we see it, is quite unambiguous. It states quite clearly - at 33.3.1.
PN378
THE COMMISSIONER: Yes.
PN379
MR HANCOX: That on completion of a trip of 209 kilometres a minimum payment of 8 hours is made. As far as we are concerned that is quite unambiguous. Once you have reached 209 kilometres you are then paid as if you had worked 8 hours. Any time beyond that is paid at time and a half and shall stand alone. Mr Jahangiri has got a few exhibits to hand up which - he's done a fair bit of research into the number of shifts that actually exceed the 209 kilometres in the years 1997, 1999 and currently and some percentages which show quite remarkably the increase in the number of trips that a driver now works in excess of 209 kilometres which in some depots on a weekend exceeds 50 per cent of the work done.
PN380
So it is quite obvious that that is going to have a fair effect on the calculation of the aggregate wage and for its part the union contends that clause 33.3.1 is fairly straight forward without ambiguity and is certainly not open to interpretation. Trans Adelaide have in their submission, not put anything contrary to the union's view apart from reading evidence from a number of people. One of those persons in Trans Adelaide's own documentation - and that was
PN381
TA10, sir, and if you look at page 2, 2.3: Discussion Research, placitum 6: Independent consultant, Mr Bob Baker, ex-AN industrial manager, prima facie agreed with the driver interpretation but on review (after consultation with Mr Peter Moran, ex-AN industrial relations manager) has stated that distance payments should be paid at point 5. So obviously, Mr Baker had two views. One that he formed by himself and another after speaking with Mr Baker.
PN382
The union would contend that neither Mr Baker nor Mr Moran would indeed be experts on the payment of the 209 kilometres given that in Australian National even though the clause was there it would probably have been similar to Trans Adelaide, a rarity for that payment to have been made on more than a couple of occasions per annum given that Locomotive Engine and Australian National were similarly, in all my experience, based for 8 hour shifts as near as possible.
PN383
So the chances of Australian National ex-industrial officers who last handled this matter in 1989 having any memory of how this clause was applied would be debatable. Certainly, the unions found it difficult in looking back in history as to where this clause emanated. It certainly go backs to the forties and fifties from as far as we can see and I think it is only in recent times with, as I say, the changes to the certified agreements in Trans Adelaide over the years that have caused this to come to the fore.
PN384
Trans Adelaide's position, sir, is that they are already paying the distance payment as part of the aggregate wages of suburban train drivers. We haven't seen too much evidence that this is so. In fact, our members say that when they exceed 209 kilometres they are paid only half time not as the award clause states time and one half. They are only paid the point 5 rather than the time plus the point 5. What we say and, you know, Trans Adelaide have given a couple of examples where the 209 kilometres kicks in at about 6 hours.
PN385
It is our experience that it does not kick in until about 7 hours and 30, 7 hours and 40 minutes on the majority of occasions. So we are not talking about big dollars in this particular occasion. We are only talking about 20 minutes or so which is paid at the time and a half rate. So if you take that mileage payment kicking in at 7.5 hours the union's interpretation would be that after 7.5 hours the employees are entitled to 8 hours pay. Then for all time worked beyond that 209 kilometres at, say, 7.5 hours he or she should be entitled to time and a half.
PN386
So if they only work up to 8 hours they would get 8 hours pay for the 7.5 and then a further 45 minutes for the extra half hour being the half hour at time and one half. The union would say that Trans Adelaide arguing that clause 15.8 refers to extra rates not being cumulative preventing them from paying both the distance payment and the overtime rate is not correct. Clause 15.8 refers to two exceptions and those are clause 16.75 on page 22 and 23 of the Award and 27.3 at pages 57 to 60 inclusive and both of these clauses relate to public holiday payments and to certain allowances in part 5 of the Award which only applies to workshops of miscellaneous grade section and not the suburban train drivers.
PN387
The union for its part submits that nothing in clause 15.8 prevents Trans Adelaide from the payment of overtime rates in addition to the distance payment. We say the two are unrelated. Both are separate and distinct payments. One for overtime either on a daily basis or in excess of 80 hours work a fortnight. We contend that this is supported by those words in clause 33.3 which state:
PN388
Such time to stand alone and not be included in the computation of overtime.
PN389
The intent of this clause, we say, is clear and unambiguous. That is the distance payment is not a penalty rate as is the overtime rate and should stand alone in the calculation of suburban train drivers' wages. Trans Adelaide, on the other hand, argues that it has sought advice from ex-Australian National industrial relations personnel and Mr Baker at first agreed with the union and then changed mid-stream. We wouldn't comment on Mr Baker's change of heart suffice to say that neither of these people have had one iota of hands on experience in relation to this issue especially since around 1989 when all of the suburban train drivers became permanent direct employees of then State Transport Authority which, of course, is now Trans Adelaide.
PN390
These employees were formerly AN employees made available to Trans Adelaide or on loan and all of their wages calculations were done by Trans Adelaide and then the calculations were handed over to Australian National who would then make the payment to these people. It is our belief, sir, that the aggregate wage was a very vital component in persuading the suburban train drivers who were AN employees to become direct employees of Trans Adelaide in 1989. That was the reason for the making of the 1990 Interim Award when that happened.
PN391
The aggregate wage, we say, was the hook, so to speak, that got those employees who were, at the time, resisting direct appointment by STA to actually make up their mind to go over. It is not surprisingly that the former AN payroll officers find it difficult to answer this question accurately because they - over 13 years have elapsed since their minds were applied to payroll issues in regard to suburban train drivers. True it is that this payment for exceeding 209 kilometres would, indeed, be an exception rather than the norm given that these employees were regularly rostered for shifts which were completed in 8 hours as the norm rather than the difference.
PN392
We submit that it was only with the advent of the 1997 certified agreement that Trans Adelaide introduced the practice of rostering suburban for train drivers for shifts extending up to and beyond 9 hours and so began the increase in the number of shifts which exceeded the 209 kilometre mark and Mr Jahangiri will give some evidence around those figures. Also within the '97 agreement a clause permitting Trans Adelaide to deduct make up time from overtime penalty rates was introduced.
PN393
Not only did Trans Adelaide deduct make up time from overtime they also began to deduct it from the mileage payment. A practice which, I understand, still continues to this day despite the fact that the clause permitting Trans Adelaide to deduct make up from overtime penalties was removed in the 2001 agreement. Significantly, Trans Adelaide no longer deducts the make up time from overtime. However, in the calculations for the current aggregate rates for suburban train drivers it is apparent that a deduction is still being made of make up time from distance payments and we say that this is incorrect.
PN394
Sir, the union has examined the impact of roster changes since 1997 and quite clearly there has been a significantly marked increase in the number of shifts which extend beyond 209 kilometres. The last three major roster changes have seen the percentage of shifts increase in excess of 209 kilometres from 12 per cent to around about 25 per cent. In some depots, as I said, the percentages at weekends exceed 50 per cent.
PN395
As a result the correct calculation of the aggregate wage becomes extremely important to our suburban train drivers. The union is not arguing that Trans Adelaide should pay these employees other than what they are legally entitled but we do contend that their current interpretation of the clause is incorrect and it should be corrected and transparent and at the moment we say it neither. Sir, I will leave my submission there for the time being. I will hand over to Mr Jahangiri to give you some more details on the effect of the roster changes on the drivers' aggregate wage and the number of shifts exceeding 209 kilometres.
PN396
THE COMMISSIONER: Yes, Mr Hancox, just on the - I mean, what Trans Adelaide basically says is here - well, the union is saying - the union is saying the clause 33.3 is - it is unambiguous and it is just a - it is clear it is unambiguous therefore you can't look behind it at what the parties have done.
PN397
MR HANCOX: Yes.
PN398
THE COMMISSIONER: Trans Adelaide is saying: no, look, you are entitled - it is ambiguous in effect or - you might correct me if I am wrong here, Ms Smedley, but I mean, what you are saying is you can have regard to customer practice. So you are relying a lot on customer practice. I am interested, Mr Hancox, why it is that over the last 10 years there has not been a problem raised about this. Now, I know that the problem with distance payments or the occurrence of distance payments has been - there has been a lot more of it in recent times.
PN399
MR HANCOX: Yes.
PN400
THE COMMISSIONER: I understand that but there must have been other times during the 1990s when these things happened. Trans Adelaide has applied the rates on. There has not been a complaint from the union until recently.
PN401
MR HANCOX: I would have to say that in the example that Ms Smedley handed up from the 1991 letter from Mr Bedford it was quite apparent that 2.5 hours spread across the whole of the suburban train drivers roster would mean that the distance payment wasn't a very important component of the aggregate wage at that time. It was a very minor part of it. A far more important one, if you look at those documents, was the broken shift penalty.
PN402
That really blew the aggregate up to a significant extent because broken shifts paid a larger penalty than the distance payments. The distance payment was only a small part of it. What I am saying, sir, is that it is only the changes in the '97 and the 2001 agreement that have led to different rostering practices which have meant that suburban train drivers are more likely to hit the 209 kilometres before they reach 8 hours than they ever were in the past. That is why this has become such a major sticking point between the parties.
PN403
THE COMMISSIONER: So you are saying before 1997, in effect - - -
PN404
MR HANCOX: It was a very small part of the calculation.
PN405
THE COMMISSIONER: Yes, and therefore the union didn't really apply its attention to the calculation.
PN406
MR HANCOX: I would say it would have applied its attention far more to the other matters. The number of suburban train drivers, the number of shifts worked, the number of broken shifts which actually made up the largest part of the percentage. I would suggest that prior to 1997, 1998 or even 1999 the number of shifts that exceeded 209 kilometres were insignificant. They had very little effect on the aggregate one way or the other.
PN407
So I would suggest that in checking those calculations during those years and I think the number of roster changes were also very minimal. Sometimes the rosters didn't change for 2, 3 and 4 years. The service didn't change so the roster didn't change. So there were very few calculations done. Now, those calculations are becoming more and more the norm. They might happen twice a year. They might even happen three times a year. So I suppose people are paying a lot more attention to them now that they are becoming more regular.
PN408
THE COMMISSIONER: Yes. okay. All right, thanks. We will hear from Mr Jahangiri.
PN409
MR JAHANGIRI: Yes, your Honour. In regard to just why nobody before just talk about the distance penalty up until 1997 anytime the calculation of the aggregate was made it was in a good face or the calculation is right and the union just sign it without going through the details of it and after that at 1997 when it was just, you know, the aggregate was paid I just ask management what was the problem with that one because in my view the calculation 2 plus 2 is going to be 4. Why has it become 3.5? After that they say: no, it is right.
PN410
They just - after lots of difficulty to get a copy of the calculation eventually I got that copy and I just pick up so many mistakes which were made. One of them was that supposed few numbers add together and divided by that one, one of them which was 1 another one appear next to it. Just that add up was - instead of 13 become 23. When they divided total of the penalty it dropped. Instead of divided by 13 it was divided by 23.
PN411
I knew the management if you are going to just get anything from them at that time they were not going to just give it to you so I approached them step by step. First about that one and after that it gave - it took - just as much, you know, a year to acknowledge that one and eventually the drivers were paid on that regard.
PN412
THE COMMISSIONER: When did you first raise the issue with Trans Adelaide?
PN413
MR JAHANGIRI: It was just in the year 2000. Before year 2000 I didn't put it in the writing. I approached them. I talked to them in 1999 but as they were dragging so long I just put it in the writing and I say I am going to just take the legal action and that was the thing I did. After that I just look at the calculation of the aggregate and I notice the calculation of the aggregate is wrong at that time and mainly because of the distance penalty.
PN414
Before 1997 we didn't have any problem with the distance penalty. Even in that - 91' there are two of them which are tabled and just paper - Trans Adelaide tabled today, TA5 and in that one it is mentioned about two of the sets which go over 209 but there is not any detail of it to see how it becomes 31 minutes. Maybe they have done already just, you know, calculating that one to just get that figure of 31 or just 24. It is not clear for us where did they get that number and there is not any details on those that are working to say about it.
PN415
When it came to the 1997 that calculation when they have done it, I approached them and I asked them, they say because through the 1997 EBA we put in a clause over there which is going to just make up time, take away from overtime to just save some money for them. They apply that one and they apply that one to just the distance penalty as well. I said: no, you cannot find anything in that EBA to mention you can touch the distance penalty.
PN416
Since that time up to now they haven't done anything. The only thing they have done to go to different people to just, you know, see what is their view and all those peoples as - in a consultant or Mr Muller or the others, they were all paid by Trans Adelaide so they are not going to definitely work in my favour or if their report is not in their favour they cannot just easily table it here. They can just not put it in the shelf.
PN417
Before we go through the other details about it as a driver as somebody with just, you know, non-English speaking background I started to work. I just - the only thing I have got to rely on it. It is my award and in my award clearly as it was mentioned it is just about 209 kilometres distance penalty. Anytime I just reach 209 kilometres I have to be paid 8 hours and after that time and a half.
PN418
Apart from that one, in the section B of that one, it says it going to be a stand alone. It is not going to be included into the calculation of the - just overtime. With Trans Adelaide - did it and when we just talk with the manager all the time they try to just refer us to the others and the others and eventually when they have got some report which was in their favour they just tabled that one. When we go to that one although I say in my view I don't know anything about the background of it but it is obvious so many countries they are just, you know, getting some part of their constitution from the other countries. They copy anything which is going to suit them. Which is going to work for them.
PN419
So that was the part which come into our award. If they were not angry with that one they should just, you know, say about it at the beginning not let it to just go through and after that when there is a problem they kind of say: no, we have to go and just find somebody who was in the payroll of the Australian National 13 years ago and such and such to come and justify it. The other reason that 209 kilometres is over there you will see as it was mentioned before it was for suburban train drivers because suburban train drivers they are going through so many of the signals and crossing, pedestrian crossing, road crossing and lots of other things which is just every day. It effect our performance.
PN420
In that regard that 209 it is not only for the payment it is for the safety as well. If you are going to be overloading the drivers you are going to just have some effects on their performance which is just - you are not talking about it here. In that regard when 1997 they brought - just new roster and that time through the EBA they accept to do that one. That time we had just there - I have got some of the table in that regard which is - - -
PN421
THE COMMISSIONER: Now - - -
PN422
MR JAHANGIRI: In table - - -
PN423
THE COMMISSIONER: - - - just explain what is this again?
PN424
MR JAHANGIRI: This is just number of the shift which just, you know, went over 209 kilometres.
PN425
THE COMMISSIONER: Where do you - where are these - where do these figures come from?
PN426
MR JAHANGIRI: The figures come from the roster. It was prepared by Trans Adelaide and - that one its roster commencement was 8 May 1997. We had the number of 362 shifts which 10 of those shifts were over 209 kilometres.
PN427
THE COMMISSIONER: Yes.
PN428
MR JAHANGIRI: It represents 2.76 per cent. That was on weekdays. After that again in 1999 they changed the roster and through that time again because they just - they squeezed the number of the drivers, they give a package to some people, they go. So they have to load the others. At that time that percentage on weekdays jumped nearly 10 per cent. The current roster which is just started from 30 September this year it has gone up to 18 per cent.
PN429
When you go back to the table numbered 2 you see the percentage at that time for the return was zero and after that 1999 it jumped to 25 per cent and recently it is just 38 per cent. Why? Because they didn't want to have extra drivers on weekend to pay penalty for them to attend at work. So they just add another train on the top of - set workings for the driver which had some effect on them and they can just acknowledge lots of increase number of the sickies or the others in that regard.
PN430
THE COMMISSIONER: Now, first of all, does Trans Adelaide have any objection to this? It looks as though this has been taken from Trans Adelaide documentation. Do you have any objection to that document being considered by the Commission, Ms Smedley?
PN431
MS SMEDLEY: I don't have any objection. I notice the numbers from the 2002 roster are different to the ones I submitted to the Commission but perhaps that is something that I can - - -
PN432
MR JAHANGIRI: The numbers is table 1 weekdays and table 2 is weekend. If we add them up it is going to be just total of the number.
PN433
THE COMMISSIONER: I will then - I will accept it as exhibit U1. I think with any of this - I mean, I don't think anything is going to hinge on the precise number of shifts or whatever. It is clear that there is a trend to more and more shifts over 209 kilometres as Mr Hancox said. That is clear and I think that is really the point of it.
PN434
MR JAHANGIRI: It has just come to table number 3. That one is just reflect - just increases of the number of the shifts which just, you know, over 209 kilometres in one depot. For example, Adelaide depot. Why one depot is just getting so much of those shifts which just exceed 209 kilometres because Trans Adelaide at the moment is just using a formula to paying the aggregate to the drivers instead of just having a waited hour rate for any set working everybody is entitled for whatever they work as it was mentioned in presentation of the Trans Adelaide who want to just pay the drivers no less, no more.
PN435
This way you are paid the penalties in one hand and it is just taken away with the other hand because they just by intention, we believe, give all the jobs to one depot, increase that depot and the other depot they bring it so low. Why they increase one depot because that depot has got the majority of the number of the drivers. When you have got four depots that Adelaide depot it is just exceeding more than 50 per cent of the work-force. The other three are just nearly - they are the rest.
PN436
This way this depot is just, you know, add on and after that one depot is just, you know, go so low and after that you have got a Trans Adelaide depot as just 44 line and Belair depot has 10 lines. After that you are using that formula, highest one and lowest one add together divided by two. What we are doing we are just bring 40 people's wages down and we are increasing 10 people's wages up. That is the problem. Why they don't do this one to go on and just do it for the other depot or be a fair distribution of the work for the - all the depots which is one of the things we just - for so many years we are just fighting with Trans Adelaide to just correct that one. I have got just - - -
PN437
THE COMMISSIONER: Okay, just before you go on. This third table that you have put in I will put that as part of exhibit U1.
PN438
MR JAHANGIRI: All right.
PN439
THE COMMISSIONER: So if I can just - there are no other tables you want to put forward?
PN440
MR JAHANGIRI: Yes, your Honour, the table numbered 4 it is shift work over 209 kilometres and all the example we just received from Trans Adelaide you are talking about the shift was just, you know, hit 209 kilometres at 6 hours which in this table you can see on weekdays or weekends average duration of the shift or average time taken to reach 209 kilometres and also average distance worked per shift.
PN441
It is not just big deal to say, okay, between 6 overs and 9 overs something is just going to be double-dipping - okay, it's double time for distance payment or double time for the overtime. That way clearly you can see the maximum amount of money it is going to be in regard of something like 30 or 40 minutes. In that regard again, I have got table 5 and table 6 and 7 which show the number of the set working and the minutes they work and minutes they reach 209 kilometres so it is not going to be like that a spreadsheet which Trans Adelaide tabled and it is just going to create some difficult for someone who is not familiar with the system to go through it and just work it out, how much time it was, just you know, paid or not.
PN442
As you go through the calculation of the aggregate you will see, even in the EBA 2001, we don't have that section in regard of just taking minus time, take away from overtime. Still Trans Adelaide is just paying half a penalty which clearly, and their words state, after 209 kilometres is reached should be paid at the rate of time and a half and, unfortunately, that one is missing. Mainly Trans Adelaide is the one who created this sort of roster because before 1999 we had a procedure in place to have a new roster and it was Trans Adelaide's need to change roster or set working or extra services and at that time they create, through their planning co-ordinator, a roster and they negotiate that one with the union and the union distribute the roster - copies of the roster to their drivers and after that the drivers had a right to vote for it.
PN443
If they accept that one, it is going to go for fine tuning and be implemented and if it is not accepted by the drivers it should go back and just change its content. Since 1999, Trans Adelaide reached that gentleman's agreement and they are just creating a roster the way they like and just implement it and we don't have any say about it or word in that regard and that is the reason it is just causing problem amongst the drivers and when we approached management, up to now, unfortunately, we couldn't get anywhere and when we just - management in Trans Adelaide changed, we approached the new managers and we asked them and they say: We are going to sort it out and that is the reason we started to just have aggregate working party. Not only because they were going to just sort it out, because of their obligation through the EBA to just do this one within 12 months and after - - -
PN444
PN445
MR JAHANGIRI: At the same time, when we are just having the roster working party for the aggregate, we explain it to just management and also some other issues as mentioned here, like averaging or the others, and surprisingly, for us, we were just told, and it was minuted in one of the meetings paper, they wanted to just give that weighted average, to be fair, if we trade-in the distance payment. We are not just going to just now bartering about trade this one, trade that one. We are asking for something which was calculated wrongly and should be just corrected and we don't want to just, you know, go through any other thing which is not related because otherwise we can just go and get the view of so many other people who can interpret that one in a different way.
PN446
THE COMMISSIONER: Mr Jahangiri, the only thing I am interested in though is what this clause means. I realise what you are saying, from your point of view and the people you work with or represent, there might be all sorts of issues hanging on this but all - I cannot have regard to that really. It is, just like I said earlier, I can't have regard to how much this cost Trans Adelaide. As I understand it, the parties have asked me to make a private arbitration on what the clause means.
PN447
MR JAHANGIRI: Yes, that is the thing we just like to - - -
PN448
THE COMMISSIONER: I understand that there could be implication but I think we need to confine it to what the clause means.
PN449
MR JAHANGIRI: Definitely, we need - you know, your reading from that paragraph and after that we don't have anything.
PN450
THE COMMISSIONER: Okay.
PN451
MR JAHANGIRI: Thanks a lot.
PN452
THE COMMISSIONER: Thank you. Now, can I just ask both parties here, this is a private arbitration, of course, as I have indicated, which means the Commission does not have authority, it does not have normal jurisdiction as we know to interpret awards but it is a private arbitration. Do the parties intend to apply any decision I make prospectively or both prospectively and retrospectively? Like, I am just thinking here, depending on what I come up with - I mean, there is two different interpretations. There is the union's and Trans Adelaide.
PN453
For all I know, there might even be a third interpretation somewhere in the middle or out to the side but if I come up with an interpretation that is different from the way that it has been applied in the past, I mean if that were to be the case, I would hate to think of all the reworked calculations that might have to be done over the last goodness knows how many years. I mean, what are the parties intentions in that regard? Do you understand the purpose of my question?
PN454
MR HANCOX: I think from our point of view, Commissioner, we would be looking to say, well, the only roster that has come to my attention which Trans Adelaide has sent. these are our calculations, do you agree and I have written back and said: Yes, I agree the methodology you are using these calculations are correct but we disagree with that. That is on 30 September this year and that is when I have been looking for this decision to take place from. I would not be looking to go back to 1989, if that is what you are asking.
PN455
THE COMMISSIONER: No. I mean, it is a matter of what the parties agree on but if that is what you are agreed on, well, that is what you are agreed on. Is that Trans Adelaide's view as well?
PN456
MS SMEDLEY: Yes.
PN457
THE COMMISSIONER: Yes. I mean, it seems to me that to try to - if I came to the conclusion to try and untangle what has been done over the last X years would be, I think, impossible, to be honest. It would be a recipe for - a major recipe for stress but I understand where you are coming from. Mr Hancox, is there anything further you wish to put in submissions?
PN458
MR HANCOX: Not from my point of view, Commissioner, no.
PN459
THE COMMISSIONER: Mr Jahangiri?
PN460
MR JAHANGIRI: Your Honour, when we just wrote the letter to the management at that time we mentioned about, you know, payment from 1999 - even '97, it was two of them, but as they are just going to be divided by number of lines and number of weeks in a year, it was so little so we don't have anything in that regard but a calculation from 1999, we have got some concern about the distance payment.
PN461
THE COMMISSIONER: Right, but do you agree with Mr Hancox - well, Mr Hancox speaks for the union, I guess. What I am being asked to do is interpret the award provision and the parties intention is that they will then - that will have implications from 30 September this year.
PN462
MR JAHANGIRI: We have got that but we just reserve our right about the calculation from 1999.
PN463
THE COMMISSIONER: Okay, let me put it this way. I mean, I am accepting 30 September this year is when the parties want me to interpret and intend to apply it from 30 September this year. Now, there is nothing - nothing to stop any individual employee making a claim for back payment at any point. However, if you do make a claim for back payment at any point, you will not be able to rely on my decision because this is a private arbitration because technically the Commission does not have the authority to interpret the award.
PN464
So as long as that is clear for everyone. Probably, Mr Jahangiri you might have to have that explained to you but basically - Mr Hancox, I am sure you can explain that. I mean, it is a complex situation but there is nothing to stop anyone applying for back pay at any point but you then have to go to the Industrial Relations Court and it is a new ball-game, basically. Ms Smedley, is there anything that you want to finally comment on that Mr Hancox and Mr Jahangiri raised?
PN465
MS SMEDLEY: Yes, sir, just some of the points Mr Hancox and mr Jahangiri raised in respect to there being two parts of the clause which were under contention in respect to the interpretation, my understanding is there has always been differing views in both of those parts of the clause, not just the second part. In respect of custom and practice, yes, Trans Adelaide has put in its submission, you know, there has been consistency over the 11 years and we disagree that the clause is completely clear and concise. In fact, if it was, we wouldn't be here today and we also wouldn't have put in the effort that we to seek external advice in an attempt to try and analyse the clause in detail and come to a common understanding of it.
PN466
We acknowledge there was a letter from Mr Jahangiri in 2000. It became part of the discussions in the enterprise bargaining at the end of that year and into the following year and resulted in the establishment of the aggregate working party where, hopefully, we are working positively to addressing some of these issues that have been put before us by the drivers and the union. In respect of a lack of clarity in the calculations, we have employed Mr Muller to put together a spreadsheet which will automatically calculate the aggregate.
PN467
So our intention, at the end of the process, is the union can have a copy of the spreadsheet, we can have a copy, we can be clear on what the outcome is and sign off on the end result each time a new aggregate has to be calculated and also put together much more detailed working instructions which will address all of the individual issues that we have raised in the working party so at the end of this process we are not in the position that we were 4 years ago where probably only one or two people had a detailed understanding of how this calculation worked.
PN468
Trans Adelaide does just want to pay no more, no less than what a driver is entitled to receive. However, we would also like to make our decisions on our interpretations based on a sound understanding of an award clause and whether that be through understanding what has been done in the past, understanding its origins, understanding industrial interpretation of like clauses. We disagree we have only tabled favourable reports, they are the only reports we have received and parts of those reports are not favour, they do say the clause has some ambiguity in parts and we acknowledge that and have tried to research further to bring some clarity to the situation.
PN469
THE COMMISSIONER: Just so that we are all understand where we are with those reports, I am accepting those reports as putting forward Trans Adelaide's viewpoint. I mean the fact that consultants have made reports is of itself no persuasive value to the Commission in terms of arbitrating this matter, you understand.
PN470
MS SMEDLEY: Yes.
PN471
THE COMMISSIONER: I understand you are putting them forward to say these are what consultants have told us and they happen to agree with us.
PN472
MS SMEDLEY: Yes.
PN473
THE COMMISSIONER: Just the fact - we are not dealing here with sort of a weight of consultant's reports. There are five consultant's reports on one side and none on the other therefore consultants must be correct, that does not automatically follow, of course, and I am sure you understand that.
PN474
MS SMEDLEY: It was just part of our journey in seeking a better understanding of the award clause. We disagree with Mr Jahangiri's comment about the safety aspect involved in travelling long distances. that the clause should be, in itself, a consideration of that. You should not pay for unsafe practices, you should address them and make them safe. I believe the intent of the clause is as we have put forward before in respect of back in the steam engine days where there was a reward for hard work, although the long distances, having to travel them now, still applies.
PN475
The union has also raised the example used by Trans Adelaide of 6 hours, it was purely a mathematical example to clarify how Trans Adelaide applies the clause. We acknowledge that in real terms this differs and in a number of circumstances, depending upon the actual schedule. Sir, if it assists you, in summarising Trans Adelaide believes for a distance payment calculation, distance payment of half time is paid for all time worked from the time the driver reaches 209 kilometres to the end of the shift and overtime is treated in the usual manner.
PN476
The union, from my understanding, believes that on reaching 209 kilometres 8 hours should be paid and all time after 8 hours, to the end of the shift, should be paid as time and a half and any overtime worked should also be paid as time and a half. Trans Adelaide disagrees with this interpretation because the penalty on penalty issue for the overtime portion and Trans Adelaide also says that the 8 hours minimum is in respect of 8 hours minimum for the shift in which 209 is travelled not 8 hours minimum on reaching 209 kilometres. Hopefully that summarises the differences in the interpretations. Thank you.
PN477
THE COMMISSIONER: Yes, thanks. I think even though there is a lot of material surrounding this issue the bottom line still is what the parties are after is an interpretation of 33.3.1 and 33.3.2, that is what it comes down to. If you look at it, there are some key issues there, I think. I know it is from the steam days but I would still love to know where the precise distance of 209 kilometres came from and I know that is not relevant to this decision but I would love to know the answer to that at some point.
PN478
MR HANCOX: I think I might be of some help there, Commissioner. It use to relate to 130 miles.
PN479
THE COMMISSIONER: I thought it - I did my calculations and it was around 130 miles, yes.
PN480
MR HANCOX: That appeared in an early New South Wales Award which transposed itself throughout the country - - -
PN481
THE COMMISSIONER: I suppose there was some arbitration back in the 1920s or even earlier that sort of came up with that magic figure.
PN482
MR WELSBY: That was probably the distance between two stations at the time, could well have been.
PN483
MR HANCOX: No, the stations only use to be 20 ks apart in those days.
PN484
MR WELSBY: I mean in terms of a train travelling between two stations for a portion of a shift.
PN485
THE COMMISSIONER: Yes, I am sure that is a good one for the historians. There is a lot of material to sift through and I will certainly be having a careful look at transcript when that becomes available. Now, I can't guarantee a decision by any particular date but I will tell the parties I will do my best and sort through the material and obviously reserve my decision.
ADJOURNED INDEFINITELY [4.45pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #TA1 LIST OF MEETING TIMES OF THE AGGREGATE WORKING PARTY PN85
EXHIBIT #TA2 INSTRUCTION ON THE AGGREGATE WAGE FROM P. BEDFORD, DIRECTOR OF HUMAN RESOURCES, 26/04/1991 PN109
EXHIBIT #TA3 AGGREGATE WAGE CALCULATION FOR SUBURBAN TRAIN DRIVERS, MAIN LINE, DATED 30/09/2002, AS PROPOSED BY TRANS ADELAIDE PN186
EXHIBIT #TA4 TRANS ADELAIDE'S INTERPRETATION OF DISTANCE PAYMENTS IN CLAUSE 33.3: RAIL INDUSTRY TRANS ADELAIDE AWARD 2002 DATED NOVEMBER
2002 PN200
EXHIBIT #TA6 DISTANCE PAYMENT CALCULATION FOR 1997 PN276
EXHIBIT #TA7 LETTER DATED 28/06/2001 FROM EMA CONSULTING TO TRANS ADELAIDE PN286
EXHIBIT #TA8 DOCUMENTATION FROM MR MULLER PN293
EXHIBIT #TA9 MATERIAL FROM MR BAKER INDUSTRIAL RELATIONS CONSULTANT TO TRANS ADELAIDE DATED 25/07/2002 PN314
EXHIBIT #TA10 REPORT PREPARED BY MS SMEDLEY DATED 30/09/2002 TITLED: TRANS ADELAIDE RECOMMENDATIONS ON AGGREGATE CALCULATIONS TO
THE AGGREGATE WORKING PARTY PN325
EXHIBIT #TA11 TRANS ADELAIDE'S COSTS ASSOCIATED WITH THE UNION DISTANCE PAYMENT CLAIM DATED OCTOBER 2002 PN336
EXHIBIT #U1 VARIOUS TABLES INDICATING PATTERNS OF DIFFERENT ROSTERS AND THE NUMBER OF SHIFT WORKED IN EXCESS OF 209 KILOMETRES PN445
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