C2002/5777, Transcript of Proceedings [2002] AIRCTrans 5261 (31 December 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
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TRANSCRIPT OF PROCEEDINGS

O/N VT1100
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER TOLLEY

C2002/5777

TRANSPORT WORKERS UNION OF
AUSTRALIA

and

STEVENSON TRANSPORT PTY LIMITED

Application under section 170LW of the Act
for settlement of dispute re concerning the
way in which the driver is required to work
and subsequently paid

MELBOURNE

9.30 AM, THURSDAY, 12 DECEMBER 2002

PN1

MR H. SMITH: I appear for the TWU with Mr F. BUTERA, Area Organiser and behind me are two delegates, MR N. VANDENBERG and JOHN LISSIK.

PN2

MR M. CARTER: I seek leave to appear with MR J. McMILLAN from Stevensons Transport.

PN3

THE COMMISSIONER: What do you say about leave, Mr Smith?

PN4

MR SMITH: I have no objection, Commissioner.

PN5

THE COMMISSIONER: Leave is granted, Mr Carter. Yes, Mr Smith.

PN6

MR SMITH: Commissioner, this is an application under 170LW of the Act re an interpretation of an enterprise agreement. That enterprise agreement has expired, expired on - had a nominal expiry date of 31/10/2002 but its - or the company's interpretation of that current - or current expired agreement - will either assist or impede the making of a new agreement. The principal area of concern where the company, the employees and the union disagree is how work is allocated.

PN7

What happens is whether people are employed under the local award, the '98 award, or the Long Distance award, they either ring up to find out on that day whether they are required or are told the night before. So they can work for two days and then be told that they are not required the following day and then either they ring up or they are rung up and told their work. Now, I would contend that under the '98 award that they have got to work five consecutive days. That can include weekends, of course. The award allows for that now and that under the Long Distance Drivers Award that rosters. Even though they may not have to work five consecutive days rosters need to be posted to as near as practicable to indicate when they are required to work.

PN8

That does not happen. I have been through the agreement and looked at those particular parts of the award and it would be my contention, despite what is in the agreement, that those two particular provisions of the award continue to apply. There are no fixed starting times because the agreement provides that there are no fixed starting times. So our major area of concern is this ad hoc way people are employed and there seems to be no differential how people are slotted to work under the local award or the Long Distance Drivers Award.

PN9

The company would appear to comply in terms of its contract of employment with these people solely on the agreement to the exclusion of all provisions of the award. I would leave my comments at that stage, see what Mr Carter has to say and it probably is useful that we go into conference at some stage, Commissioner.

PN10

THE COMMISSIONER: Yes, thank you.

PN11

MR SMITH: Thank you.

PN12

THE COMMISSIONER: Yes, Mr Carter.

PN13

MR CARTER: Stevensons Transport is a specialist carrier and - - -

PN14

THE COMMISSIONER: Yes, and where are the works at Stevensons Transport?

PN15

MR CARTER: Dandenong - in Ordish Road, Dandenong is where the current - the work is allocated from. And it is a specialist carrier of bitumous product and LPG and it itself has no cargo on site for regular work and it therefore carries when customers phone up and order. And we would rely upon the terms of the enterprise agreement that Mr Smith has referred to which was negotiated with the TWU.

PN16

THE COMMISSIONER: I will mark that as R1.

EXHIBIT #R1 ENTERPRISE AGREEMENT

PN17

MR CARTER: And as Mr Smith has indicated it expired in October of this year and it was a three year agreement and the agreement replaces the Long Distance Drivers Award and the Transport Workers Award. And as I said it provides for - - -

PN18

THE COMMISSIONER: When you say it replaces you mean in the specific issues listed in the agreement?

PN19

MR CARTER: To the extent that the agreement provides for provisions different to the award it displaces those. In clause 3 - parties bound - those awards are referred to as well as the nature of the product being articulated bulk LP gas and bitumen operations. And that the clause 6 provides for an hours of work clause and the hours of work clause is:

PN20

All hours of work are deemed to be at ordinary time -

PN21

And ordinary time is defined as into the ordinary time of this EBA not to the award rate:

PN22

- and to the extent that the hourly rates of pay provided for in schedule 1 of this agreement are inclusive of all shift, overtime, penalty loadings or any other loadings or allowances not specifically provided for elsewhere in the agreement.

PN23

So it provides for an all up hourly rate:

PN24

To avoid doubt this means that regardless of the number of hours worked in any one week and the time of day which duties are performed the hourly rates of pay prescribed for each skill level remains the same.

PN25

So there are no payment arrangements other than what is the hourly rate:

PN26

And the minimum allowance in any one week shall be 38 hours and each day shall stand alone at 7.6.

PN27

Clause 7 then sets out the rates of pay and the skill levels and then there are various allowances and provisions. And if I can then refer to clause 19 - exclusions:

PN28

Provisions of any other awards or industrial agreements relating to highest function, mixed function, starting times and hours of work -

PN29

And in relation to the Long Distance Drivers Award, as Mr Smith has noted, there are no hours of work or starting times but there is contained within the Transport Workers Award:

PN30

- or similar or related provisions -

PN31

And we would say that anything relating to rostering arrangements, starting times, spread of hours, those things are similar to starting times and hours of work:

PN32

- in any award or industrial agreement shall not apply to the operations and parties covered by this agreement.

PN33

So we would say that the contention by Mr Smith in his opening remark does apply and therefore this EBA excludes those arrangements. And what we say is what the parties negotiated was an arrangement by which the company could start and finish the drivers seven days a week at any day any time in any combination provided they received a minimum of 38 hours pay. And for that they negotiated a rate of pay contained in schedule 1, which is the last page of the document, in relation to various sized vehicles B doubles and 43 tonnes in which the rate of pay was based on the 38 h ours. They then added 10 hours overtime to the 38 hours.

PN34

They then paid two and a half hours meal allowance and that total sum was then divided back into 38 which then provides for the $23 and that is then paid for all hours worked. So in the first - for the first 38 hours the driver is actually receiving 55 hours pay and for every hour worked after 38 they receive an additional $23 which is - I think it is slightly over 1.5 - sorry, it is about between 1.3 and 1.5 hours for each hour worked. There is no deduction for the next two hours providing for the rostered day off so they are paid the higher rate without having to accumulate time towards a rostered day off.

PN35

So the parties have made an arrangement for all the drivers to receive a substantial payment in terms of comparing the hourly rate under the EBA to the award provisions plus any penalties for shift arrangements other than a straight Monday to Friday between the hours of 5 am to 6 pm provided for under the award. And that is why we say that the EBA when it was negotiated that was what was intended, that was the working pattern in existence at that time which previously - before enterprise agreements paid for - the company worked and paid the various award penalty rates and they negotiated this all up hourly rate to replace all that and still retained the freedom and flexibility to roster drivers when work is available.

PN36

And there is also a separate provision in there for if there is no work available for the payment of drivers of a minimum 38 hours. So we say t hat the contention made by Mr Smith in his application is not correct and we say that the EBA provisions for the exclusion clause, which are quite broad and quite specific, coupled to the negotiated all up hourly rate demonstrates what the intentions and the proper application of the EBA is. and I support Mr Smith's request that the parties convene at a suitable time into conference.

PN37

THE COMMISSIONER: Yes, thank you. Anything further?

PN38

MR SMITH: Only to say, Commissioner, that we don't argue about the all up hourly rate. Our argument centres round the ad hoc method of the employment - - -

PN39

THE COMMISSIONER: Excuse me.

PN40

MR SMITH: - - - of these people. Sorry, Commissioner?

PN41

THE COMMISSIONER: Your complaint is about the scheduling of work?

PN42

MR SMITH: Yes, the ad hoc method of employment. We don't believe that the agreement does provide for that.

PN43

THE COMMISSIONER: Which is counter to what Mr Carter says, yes.

PN44

MR SMITH: Mr Carter is saying and it is the only fundamental area I would disagree with him on.

PN45

THE COMMISSIONER: Yes, thank you. Well, the Commission will adjourn into conference.

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #R1 ENTERPRISE AGREEMENT PN17