C2002/5037, Transcript of Proceedings [2003] AIRCTrans 1484 (23 April 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N VT2260

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

C2002/5037

TRANSPORT WORKERS' UNION OF AUSTRALIA

and

A. HARTRODT AUSTRALIS PTY LIMITED
and OTHERS

Notification pursuant to section 99 of the Act
of a dispute re log of claims, wages and conditions

MELBOURNE

9.30 AM, MONDAY, 7 APRIL 2003

THE FOLLOWING MATTER WAS HEARD VIA VIDEO LINK-UP AND RECORDED IN MELBOURNE

PN142

MS J. TISDALE: I appear for the Transport Workers' Union.

PN143

MR M. GUYMER: I appear for the Retailers' Association of Queensland Limited appearing on behalf of the Warehouse Group Australia Limited.

PN144

THE SENIOR DEPUTY PRESIDENT: Mr Guymer, it might be advisable if you remain seated, if that is all right. When you stand up, I can't see you. Could I indicate first of all that I have received, or there is on file a letter from VECCI consenting in part to the roping-in order for GV Liquid Tankers Pty Limited. They were included in the roping in order, but, in fact, there was no evidence of service in relation to that company.

PN145

However, as I say, I have received a letter from VECCI saying that the company consented to being roped-in, so on that basis, even though I made a finding of dispute without evidence at the time that there was service, I am satisfied that there was service. Now, RAQ, Retailers' Association of Queensland, Mr Guymer, I have received from you this morning a fax setting out a questionnaire and answers to a questionnaire directed to the employees of the company that you represent in Brisbane, I presume, is it?

PN146

MR GUYMER: Yes, that is correct.

PN147

THE SENIOR DEPUTY PRESIDENT: Have you received a copy of that, Ms Tisdale?

PN148

MS TISDALE: I have, your Honour.

PN149

THE SENIOR DEPUTY PRESIDENT: And what do you have to say about that, or what should I do about that, Mr Guymer?

PN150

MR GUYMER: I will be referring to that today in my submissions.

PN151

THE SENIOR DEPUTY PRESIDENT: All right. Well, I have only listed the matter today for mention and that was for programming for any hearing, but if you wish to address that, you may do so. Ms Tisdale, what did you want to say about the matter?

PN152

MS TISDALE: Thank you, your Honour. It might actually cut short the necessity for some of those submissions if I indicate at this stage that we are no longer seeking to proceed in relation to the Transport Workers Award 1998. That is because the drivers who were the subject of that dispute have now all been contracted out and that function has been performed by a transport company throughout Australia and there is no issue from our perspective about the terms and conditions on which that contracting out has occurred.

PN153

All of the drivers have been appropriately looked after, so there is no reason for us to proceed in relation to that award. At this stage, though, we are still intending to proceed in relation to the Transport Workers Distribution Facilities Award. I am still having discussions with our Queensland branch in relation to that matter, although, as I say, at this stage we are still seeking to proceed in relation to that. I would anticipate that if we do proceed with that, section 111AAA of the Act is unlikely to be invoked.

PN154

That is because the employees who would fall under the coverage of that award are already the subject of an NUW warehousing award, a Federal award and that is on a national basis, so I would anticipate that if the company doesn't consent to being roped into the Distribution Facilities Award, they might wish to raise arguments under 111(1)(g) in relation to the public interest around that matter.

PN155

THE SENIOR DEPUTY PRESIDENT: Sorry, say that again?

PN156

MS TISDALE: I would anticipate they may wish to raise public interest - - -

PN157

THE SENIOR DEPUTY PRESIDENT: 111(1)(g)?

PN158

MS TISDALE: Yes, that is correct. I can say that one of the main issues in relation - one of the main concerns that we have is around representation rights and rights under the dispute resolution procedure. As your Honour would be aware, the award that the company is currently subject to provides rights only for representatives of a union who is a party - - -

PN159

THE SENIOR DEPUTY PRESIDENT: Members of NUW.

PN160

MS TISDALE: That is right, so that is the issue that is primarily motivating us in this matter, but it is something that may still be able to be resolved on the ground through ongoing negotiations between us and the company and I would flag that matter just because if those issues can be resolved satisfactorily, then we wouldn't see the need to proceed with this application, although those matters aren't certain at the moment, so we think it would be appropriate to perhaps issue some directions in this matter, but perhaps with a generous lead time, to give the situation on the ground and those local negotiations a further opportunity to see whether they can resolve themselves before Mr Guymer's organisation is put to the trouble of needing to respond in formal terms to our application. If the Commission pleases.

PN161

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Guymer, did you hear all that?

PN162

MR GUYMER: Yes, I did. Thank you.

PN163

THE SENIOR DEPUTY PRESIDENT: That effectively renders the fax you sent me this morning of no utility, doesn't it?

PN164

MR GUYMER: Well, it is an interesting situation, Senior Deputy President, and given the undertakings this morning from the TWU I would obviously not make any further submissions on that part of the dispute relating to drivers. Basically, what has happened here is the TWU seem to have changed the goal posts halfway through the proceedings. It was quite clear to all the parties that the initial dispute related to drivers and the draft orders that were proposed specifically requested as resolution to the dispute that the parties be roped in to the Transport Workers Award 1998.

PN165

Given explanations in regards to demarcation and membership issues, the TWU have now submitted new draft orders that relate to an entirely separate group of employees, specifically the company's warehousing employees. There may be a jurisdictional issue on that point and we would reserve our rights in regards to that. The new draft orders would affect the company's warehouse employees as opposed to its drivers. The company has two distribution centres employing approximately 50 staff and one of those distribution centres is located in Victoria and the other in Brisbane. By mid-August, the Brisbane operations will be relocated to a new facility and that new facility is located near the wharfs here in Brisbane which essentially has been somewhat of an MUA and TWU grounds.

PN166

Obviously the Federal award that these employees are already covered by is an NUW award. If the matter proceeds, we will certainly be relying on section 111(1)(g). We will be specifically relying on the fact that this Commission has already decided upon an appropriate Federal award that will cover these employees and no significant arguments have been advanced or flagged to persuade the Commission that the status quo should not be maintained, nor have there been any reasonable explanations given of the union's sudden change in direction in the matter which has caused the company - which stands to cause the company significant expense should the union not drop their application. I would certainly like to make it quite clear that the company has no intention to consent to being roped in to this new Federal award. It seeks to maintain the status quo. If it pleases the Commission.

PN167

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Guymer. What do you say about the proposal of Ms Tisdale that directions be issued subject to a fair sort of lead time to allow further discussions or negotiations to go on?

PN168

MR GUYMER: I am comfortable with that, Commissioner, on the proviso that the Commission is satisfied under section 111(1)(g) that it should not refrain from hearing the matter based on this significant change in direction halfway through the matter by the union and also the fact that this dispute or a dispute very similar to it has already been dealt with by this Commission and it would certainly be a significant cost to the company to continue from this point onwards.

PN169

THE SENIOR DEPUTY PRESIDENT: Yes, well, given the fact that you have raised section 111(1)(g), any directions that I make would take account of that issue being determined I suppose as a preliminary to the question of any award that might be made.

PN170

MR GUYMER: That is fine.

PN171

THE SENIOR DEPUTY PRESIDENT: Yes. Is that your understanding of the way it might proceed, Ms Tisdale?

PN172

MS TISDALE: Yes, your Honour. I imagine the questions are largely inter-linked, but - - -

PN173

THE SENIOR DEPUTY PRESIDENT: Well, they can both be dealt with together, but RAQ would obviously want to run the 111(1)(g) as a preliminary issue and at that time, then, at the time that the matter is heard, if it has to be heard, I could decide then whether the 111(1)(g) matter should be dealt with as a preliminary matter, but the directions that I will make now will, in fact, take into account the fact that there has been a 111(1)(g) matter raised and that has to be determined.

PN174

MR GUYMER: Senior Deputy President, after some discussion between the parties, it may be and the TWU may clarify this - I think they addressed in their submissions, but there still may be a chance that the matter may not proceed. That is the indication that we have been given, but the union may want to clarify that.

PN175

THE SENIOR DEPUTY PRESIDENT: Yes, what do you say about that, Ms Tisdale?

PN176

MS TISDALE: It does really entirely depend on how things go on the ground. It is certainly my understanding that there are no NUW members at this site in Queensland that we are talking about primarily.

PN177

THE SENIOR DEPUTY PRESIDENT: What, you say they are members of the TWU, are they?

PN178

MS TISDALE: There are a core of members who are of the TWU and a larger number who are not members of any union, so there are issues about representation rights and the ability for our union to effectively represent the industrial interests of our members there and seeking to increase the number of those members there and I understand seeking discussions with the company in relation to an enterprise agreement, so all of those matters will influence whether there is a need for us to attempt to enforce our rights or protect our rights in relation to those representational issues through this mechanism or whether that is something that can be done through negotiation and agreement.

PN179

THE SENIOR DEPUTY PRESIDENT: All right. How much time do you think you might need for further negotiation before you might have to start preparing any material in support of your application?

PN180

MS TISDALE: It is my understanding that the onus would primarily be on Mr Guymer in relation to 111(1)(g).

PN181

THE SENIOR DEPUTY PRESIDENT: Yes.

PN182

MS TISDALE: Which is why I think I was thinking something like six weeks or two months might be appropriate so that he is not put to the expense and the trouble of preparing material that isn't required.

PN183

THE SENIOR DEPUTY PRESIDENT: Would it be clearer within a month whether or not you are going to achieve a resolution by negotiation?

PN184

MS TISDALE: I believe that is likely.

PN185

THE SENIOR DEPUTY PRESIDENT: Well, what if I simply leave the directions at this stage and list the matter for mention again in a month's time, to ascertain what the situation is then?

PN186

MS TISDALE: That would be satisfactory to us.

PN187

THE SENIOR DEPUTY PRESIDENT: Mr Guymer, what do you say about that approach?

PN188

MR GUYMER: Senior Deputy President, there has basically been very, very limited discussion on any idea of a certified agreement. I think it has been mentioned maybe once or twice in a meeting at a State level and then in submissions by the Federal TWU in these proceedings. I don't believe there is any likelihood of the company consenting to do a section 170LJ agreement with the TWU. Its view is that these employees are appropriately covered by a Federal award at the moment with the NUW as a principal party and I don't believe there is much chance of any agreement being reached which would involve the TWU taking control over, effectively taking control over the employees of a retail warehouse.

PN189

THE SENIOR DEPUTY PRESIDENT: Yes.

PN190

MR GUYMER: Senior Deputy President, I think the issue comes down at the moment and the union may want to clarify this, but it basically comes down to the fact that one of its distribution centres plans to relocate near a port in Queensland and that effectively has raised the issue.

PN191

THE SENIOR DEPUTY PRESIDENT: Look, what if I allow the parties some time to reach some negotiated settlement by themselves and in the meantime, I will list the matter for conciliation in Brisbane on 7 May, so that I will hold a conciliation conference in Brisbane on that day?

PN192

MR GUYMER: It may be worth proceeding directly to the preliminary arguments, Senior Deputy President. As I said, there is a very limited chance of any agreement being reached unless the union remove their application.

PN193

THE SENIOR DEPUTY PRESIDENT: Well, I do have an obligation under the Act to endeavour to conciliate the matter in the first instance, in any event, and it may well be that you can achieve whatever you want to achieve through conciliation, Mr Guymer.

PN194

MR GUYMER: Yes, Senior Deputy President, I will accept that.

PN195

THE SENIOR DEPUTY PRESIDENT: All right. Well, I will list the matter for conciliation on 7 May in Brisbane and we can see where we proceed from there. Anything else?

PN196

MS TISDALE: No, your Honour.

PN197

THE SENIOR DEPUTY PRESIDENT: Anything else from you, Mr Guymer?

PN198

MR GUYMER: No. Thank you.

PN199

THE SENIOR DEPUTY PRESIDENT: Thank you for your attendance. The matter is adjourned.

ADJOURNED ACCORDINGLY [9.50am]