C2001/4227, Transcript of Proceedings [2003] AIRCTrans 1610 (30 April 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LARKIN

C2001/4227

AUSTRALIAN RAIL, TRAM AND BUS
INDUSTRY UNION

and

WESTRAIL FREIGHT EMPLOYMENT PTY LIMITED

Notification pursuant to section 99 of the Act
of an industrial dispute re negotiation
of an award

SYDNEY

2.06 PM, MONDAY, 14 APRIL 2003

Continued from 13.11.02 in Perth

PN4932

THE COMMISSIONER: I think my Associate has advised you that this is a form of conference, but it is to actually settle the orders and it will be recorded. What I plan to do is take the parties through the documents that have been filed with me in relation to the settlement of the orders and clarify some points and make determinations on what will be included in the award. As we are recorded I would like you to record your appearances please.

PN4933

MR A. THOMAS: I appear on behalf of the Rail, Tram and Bus Union and with me in Perth is MR R. CHRISTINSON.

PN4934

MR S. HEATHCOTE: I appear for ARGE.

PN4935

THE COMMISSIONER: Who do you have with you, Mr Heathcote?

PN4936

MR HEATHCOTE: Pardon me, Commissioner. MR D. DITAE and also out of your field of vision is MR C. DAVIES, also from ARGE. Mr Davies is here to observe the conference.

PN4937

THE COMMISSIONER: Yes, thank you, Mr Heathcote.

PN4938

MR J. MUIRE: I appear for the CEPU.

PN4939

THE COMMISSIONER: Thank you, Mr Muire.

PN4940

MR J. MOSSENTON: I appear for the AMWU, Commissioner.

PN4941

THE COMMISSIONER: Thank you, Mr Mossenton. Now, the issues appear to me to be one of a couple of clauses where ARGE are saying: well, there should be a provision for an individual agreement. There is also issues of a change of wording put up by ARGE in relation to clause 16.1.3(a), and that is to do with span. There is also an issue of number of shifts, whether it is worked on five shifts between Monday to Saturday inclusive, or whether the wording should be, "Not more than five shifts".

PN4942

There is also the issue of the cycles over - 13 over a 4-week cycle - I'm going to go back and I will pull out each of these clauses from the document I have got. There is also an issue in regards to whether the hours of work clause put up by the unions should have reference to "guaranteed week" in 16.3.2. There is also an issue about the RDOs - overtime on RDOs - and that is issue. Also, overtime after eight hours. "Guaranteed hours" clause, they are the predominant issues that I can see from the summary draft that we drafted up to ascertain where there was a difference.

PN4943

Now, can I start with 16.1.2(d). Now, it appears to us ARGE is seeking that the provision also provide for individual agreement as well as majority agreement. Now, Mr Thomas, does the RTBU agree with that? It appears to us it does.

PN4944

MR THOMAS: Yes, as I understand the point, Commissioner, your decision stated that where there was provision for agreement between the employer and the majority, it should also allow for agreement between the employer and an individual.

PN4945

THE COMMISSIONER: Well, depending on what the clause is.

PN4946

MR THOMAS: Yes.

PN4947

THE COMMISSIONER: Okay, that is fine. So 16.1.2(d) is agreed, in relation to facilitative arrangements, all right. So that is a, "yes". 16.1.3(a), there is two issues, the span and also the wording and I don't know whether that is agreed with, the change of wording proposed by ARGE. Now, Mr Thomas, does the union agree with individual agreement in regards to that?

PN4948

MR THOMAS: I'm sorry, Commissioner, I'm a bit lost.

PN4949

THE COMMISSIONER: Yes:

PN4950

Provided that the ordinary hours of work within the span shall be determined by agreement between the employer and the majority of employees in a particular workplace.

PN4951

Do the unions agree to that being also individuals concerned?

PN4952

MR THOMAS: Commissioner, if that is in conformity?

PN4953

THE COMMISSIONER: Yes.

PN4954

MR THOMAS: Yes.

PN4955

THE COMMISSIONER: It is just that we couldn't quite work out whether some of these provisions were agreed or not.

PN4956

MR THOMAS: If it is in conformity with your decision, Commissioner - - -

PN4957

THE COMMISSIONER: I think at paragraph 44 - - -

PN4958

MR THOMAS: - - - that it does not matter whether it is agreed, or not.

PN4959

THE COMMISSIONER: Well, the parties are disagreeing about the draft clauses to go into the award - - -

PN4960

MR THOMAS: Well, that is true.

PN4961

THE COMMISSIONER: Whether or not it is in my group - - -

PN4962

MR THOMAS: I think that is because there is a difference about what your decision actually says, you know.

PN4963

THE COMMISSIONER: Yes, yes, I won't even go into that, Mr Thomas, I might have to re-visit my decision writing, I don't know. Okay, the next thing in regards to that also is the - and this is the ARGE clause:

PN4964

Provided that any proposal to alter the ordinary hours within the span.

PN4965

From our perspective the RTBU are saying: provided that - well, the different wording is:

PN4966

Alteration to the arrangement of ordinary hours.

PN4967

MR THOMAS: Yes.

PN4968

THE COMMISSIONER: So do you not agree with the - what is the RTBU position? You don't agree with the:

PN4969

Provided that any proposal to alter the ordinary hours.

PN4970

MR THOMAS: Yes. Commissioner, the differences may be more apparent than real, but our view is that what we are talking about in this clause is an actual operation, rather than a proposal to alter.

PN4971

THE COMMISSIONER: So what the RTBU is saying is that the clause is:

PN4972

Provided that any alteration to the arrangement of ordinary hours.

PN4973

MR THOMAS: Yes, Commissioner.

PN4974

THE COMMISSIONER: Does ARGE want to comment?

PN4975

MR HEATHCOTE: Commissioner, we are comfortable with the alternative wording that Mr Thomas put forward on 12 March, which was to say:

PN4976

Provided that any alteration to the arrangement of the ordinary hours of work within the span.

PN4977

THE COMMISSIONER: So you agree with the RTBU?

PN4978

MR HEATHCOTE: In relation to their counter proposal then, yes, which they put forward on 12 March, we would be comfortable with 16.1.3(a) being varied in that way.

PN4979

THE COMMISSIONER: Okay, so agreed, accept RTBU wording. Okay, that is two lots. Okay, number of shifts, 16.2.1, I think it is. Now, Mr Thomas, the unions have got:

PN4980

The ordinary hours of work for shift workers shall be 38 hours per week to be worked on five shifts between Monday to Saturday inclusive.

PN4981

MR THOMAS: Yes.

PN4982

THE COMMISSIONER: ARGE are saying that that defeats the purpose of being able, or having the capacity for 10 and 12-hour shifts, and they say it should read:

PN4983

Not more than five shifts.

PN4984

You disagree?

PN4985

MR THOMAS: We disagree, Commissioner.

PN4986

THE COMMISSIONER: Okay, why is that, Mr Thomas.

PN4987

MR THOMAS: Because the - well, one, it was part of our original clause was put to the Commission, which is RTBU15, as we see as being accepted in the decision.

PN4988

THE COMMISSIONER: Well, it wasn't accepted in totality, you know that.

PN4989

MR THOMAS: Not in totality.

PN4990

THE COMMISSIONER: It had qualifications on it, okay.

PN4991

MR THOMAS: But this wasn't one qualification.

PN4992

THE COMMISSIONER: Well, because it was never addressed.

PN4993

MR THOMAS: Yes.

PN4994

THE COMMISSIONER: There is a lot in this that was never ever addressed or put to me so, therefore, this was not necessarily ruled on. Mr Thomas, logic tells me, how can you work - how can you have the capacity to work 10 or 12-hour shifts by agreement if you have got to work five shifts per week?

PN4995

MR THOMAS: If you read it in the context of the - of our entire hours of work clause, Commissioner, those hours in excess of eight, are not taken into account for the guarantee and are paid at overtime rates, so effectively as we see it whilst the length of his shift may be greater than eight, it is only eight hours that are taken into account for the satisfaction of the guarantee and you can only work 5/8 40 in a week ordinary hours.

PN4996

THE COMMISSIONER: So you say, 16.2.1 as drafted by the unions does not impact upon the working of 10 or 12 hour shifts by agreement - well, 12 hour shifts by agreement?

PN4997

MR THOMAS: Well, they can work 12 hour shifts but it is only 8 hours that are taken into account to satisfy the guarantee. That is the way in which the clause is drafted.

PN4998

THE COMMISSIONER: Mr Heathcote?

PN4999

MR HEATHCOTE: Commissioner, as I understood it, the position on the guarantee was clearly understood, that is the purpose of it was to make sure that any driver who came to work could be guaranteed to get paid for 38 hours a week notwithstanding whether the employer could provide work or not and that the Commission accepted that that was the correct position. As I understand it, your decision says that you would accept ARGEs position on that as well.

PN5000

What Mr Thomas is really doing here is putting the employer in a situation where a shift - whether it be a 10 hour shift or a 12 hour shift, becomes essentially 8 hours of rostered time and 2 or more hours of mandatory overtime which strikes me as being completely at odds with the idea of having 10 ordinary time shift. I can't see how - - -

PN5001

THE COMMISSIONER: All right, there is three issues here and you cross - then these issues cross over. They cross over into whether the overtime is paid after 8 hours and they cross over into the guaranteed hours clause.

PN5002

MR HEATHCOTE: Yes, Commissioner, and I think if the union's position and it's hours of work clause is adopted then it makes a nonsense of other parts of the decision.

PN5003

THE COMMISSIONER: All right, first thing, I wasn't - I might as well go back and start at the back. The guaranteed hours clause I accepted ARGEs clause.

PN5004

MR HEATHCOTE: Yes, Commissioner.

PN5005

THE COMMISSIONER: I stated that you two - the union's hours clause that may require amendment and I noted that it wasn't completely in accordance with the LEA Award guaranteed clause which was put to me that the ARGE clause was taken from that award. Now, the reason I said it may require amendment was because of the 9 day fortnight because the - if my memory serves me correctly, the LEA award had provisions for a 9 day fortnight. The clause that ARGE put before me did not have a provision for a 9 day fortnight.

PN5006

MR HEATHCOTE: Yes, that is correct, Commissioner.

PN5007

THE COMMISSIONER: All right, my ruling in regards to that guaranteed hours payment was only in relation to 9 day fortnight. All right? So that is where I came to from that.

PN5008

MR CHRISTINSON: The Government Locomotive Engineman's Award never had a 9 day fortnight.

PN5009

THE COMMISSIONER: Sorry?

PN5010

MR HEATHCOTE: Please.

PN5011

MR ..........: Wrong word.

PN5012

MR HEATHCOTE: Commissioner, you would - - -

PN5013

THE COMMISSIONER: No, no, no, somebody is speaking. Sorry, somebody from Perth is talking.

PN5014

MR CHRISTINSON: Yes, I misunderstood there, but the Government Locomotive Engineman's Award never had a 9 day fortnight.

PN5015

MR HEATHCOTE: I think Mr Christinson is referring to the WA State Award, Commissioner - - -

PN5016

MR CHRISTINSON: That is correct.

PN5017

MR HEATHCOTE: - - - not the New South Wales LEA.

PN5018

MR CHRISTINSON: That is right, sorry.

PN5019

THE COMMISSIONER: Well, the award that you have put up, what was the basis of your guaranteed payment's clause?

PN5020

MR HEATHCOTE: Clearly, Commissioner, we put it forward on the basis that it was the LEA of New South Wales, the 1966 award or the simplified it at 2002 award - - -

PN5021

THE COMMISSIONER: Yes.

PN5022

MR HEATHCOTE: - - - that was the one we put forward.

PN5023

THE COMMISSIONER: But there wasn't - you had modified that?

PN5024

MR HEATHCOTE: Yes, clearly, what we done and since seeing your decision, I have gone back to have a look at how we change it. I don't think we changed it in substance, it was a case of the New South Wales Award used slightly different terminology and encompassed a roster cycle that wasn't contemplated in our business. The same substance is there in both, our draft clause and in the LEA clause.

PN5025

THE COMMISSIONER: All right, the LEA clause had - well, the LEA Award had a 9 day fortnight?

PN5026

MR THOMAS: No.

PN5027

THE COMMISSIONER: No?

PN5028

MR HEATHCOTE: It did, Commissioner.

PN5029

MR THOMAS: Where?

PN5030

THE COMMISSIONER: Okay, it must have been one of the other awards then that had guaranteed payment.

PN5031

MR THOMAS: Commissioner, the LEA Award, knowing it well for what simplification does not have any specific provisions for a 9 day fortnight and it also has provisions that overtime is payable after 8.

PN5032

THE COMMISSIONER: Yes, well, one thing at a time, that is it. I'm trying to clarify the reason that I put - I accepted ARGEs guaranteed payments clause. It was to be modified having regard to 9 day fortnight.

PN5033

MR HEATHCOTE: Commissioner, I have the clause in front of me and it refers to and I will read it so that everybody is clear:

PN5034

An employee who was ready, willing and available for all work offering to him/her shall be paid each fortnight an amount equivalent to ordinary hours for the fortnight at ordinary rate of wage for his/her grade. In satisfaction of such guaranteed payment there shall be included all wage paid to the employee within the first ten shifts or in the first nine shifts where a 9 day fortnight is worked the ordinary hours of labour worked on the basis of 152 hours in a four week cycle excluding...

PN5035

And then it goes on.

PN5036

THE COMMISSIONER: That is the LEA Award you are reading?

PN5037

MR HEATHCOTE: That is the one I'm reading, yes, it is before the Commission's RTBU20 which is the Locomotive Engineman's Award 1966 which was subsequently re-named Locomotive Engineman's New South Wales Award 2002.

PN5038

THE COMMISSIONER: All right, so it has the capacity there for a 9 day fortnight in the guaranteed hours clause, is that what you are telling me?

PN5039

MR HEATHCOTE: Sorry, Commissioner, I missed that?

PN5040

THE COMMISSIONER: It has - it makes reference to the workings of a 9 day fortnight?

PN5041

MR HEATHCOTE: Yes, Commissioner, it does, in relation to what part of the - it makes reference to a 9 day fortnight in that that part of the wages paid for a - towards a guarantee in a 9 day fortnight is the first 9 shifts otherwise it is the first 10 shifts.

PN5042

THE COMMISSIONER: All right, and that is not the clause that you put up to me?

PN5043

MR HEATHCOTE: Not precisely, no.

PN5044

THE COMMISSIONER: No.

PN5045

MR HEATHCOTE: But it was the clause on which it was based.

PN5046

THE COMMISSIONER: Yes, so that is the change?

PN5047

MR HEATHCOTE: Yes, you will - - -

PN5048

THE COMMISSIONER: So that is what I referred to when I said having regard to the union's hours clause, i.e. 9 day fortnight, then that clause would require amendment?

PN5049

MR HEATHCOTE: Okay, yes, Commissioner, I think from my reconsideration of this clause, all the other substantive parts of it relating to the guarantee whilst might express necessarily exactly the same words, the substance of it is the same. The only difference between was that we referred to cycles in our clause whereas this one refers to fortnights and obviously we didn't make any reference to 9 or 10 day cycles.

PN5050

THE COMMISSIONER: Now, the issue of overtime after 8 hours, that was never ever debated with me. There was no submissions put to me in regards to that. In paragraphs 75, 76 and 77 of the decision and I haven't got that right in front of me at the moment. ARGE in these documents that have been presented to settle the draft state: well, Commissioner, you accepted our additional clause, end of story, full stop. The only argument before me in relation to that, was whether it was 2 or 3 hours and that is the only argument I got. I accepted the ARGE position which went to 3 hours if memory serves me correct. That was the position, the 3 hours was the position. No one argued to me that there should not be overtime after 8 hours.

PN5051

Now, apart from the fact I may scratch my head about a provision like that, that position, the union position, was reflected in RTBU15. No-one ever argued RTBU15 in regards to that issue before me. The RTBU sups referred to at being current practice, I accepted ARGE, clause 9, in relation to Saturday work. I think that might be out of sync, that little note that I've got there because we refer to Saturday and Sunday work later on.

PN5052

In relation to the overtime after eight hours, the Australian National Railways and the Loco New South Wales Awards, both have overtime after eight hours and both have the capacity for extended shifts of 12, 10 and 11. If I can refer you to transcript pages - and I'm not going to necessarily pull them out at the moment - paragraph numbers 3.4.01, 02, 14 to 20, 45 and paragraph numbers 4.1.30, 36, 82 to 84. Paragraph numbers 42.42 and 43.51, 46.69 and 48.70.

PN5053

The issue of whether people are paid overtime after eight hours was never argued, never debated and I was never asked to rule on it. The union had it there plainly in front of me in their draft clauses and their submissions and there is nothing before me, gentlemen, unless someone can show it to me, that that issue was ever raised. So I took it that was the practice, regardless of whether I might shake my head about it, my decision did not say that: you will not be paid overtime after eight hours because I was never asked to determine it.

PN5054

Now, you might want a bit of time to have a look at those transcript numbers. As far as the union's submissions to me and the settlement of the orders, the unions are saying in regards to clause 16.3:

PN5055

The decision accepted the hours clause contain these provisions.

PN5056

That does not go as far as the guaranteed week. I accepted the union's hours clause, but that was to be modified to take into account that I accepted ARGE guaranteed payments clause to be amended to provide for the union's 9-day fortnight. So that was something that, while I might have accepted the union's clause, I did not necessarily accept their position on guaranteed hours.

PN5057

Clause 16.5, in regards to RDOs, again, that was never ever debated. Never argued in front of me, never debated. Again, the additional hours clause, the only thing accepted as regards to ARGE argument was to do with the two or three hours and that position. So I accepted the RTBU hours clause and if that incorporates RDOs, if no-one put anything to me, then that is what has been accepted.

PN5058

In regards to working of Saturday and Sunday I, on my understanding of paragraph 80, I accepted time and a half for Saturday. The ARGE draft clause had "day" and "shift work" in it and, again, I don't know that anybody argued that with me and I accepted the ARGE clause in that regard.

PN5059

Then I accepted the union's clause that Sunday - and I don't think anybody disputed that Sunday should be double time - so that was a given, but I accepted that Sunday stands alone. Guaranteed hours, I have just mentioned. The unions draft in the guaranteed hours, I think, added 16.9.1(c), I think Mr Thomas does not form part of the LEA 66 New South Wales Loco clause.

PN5060

MR THOMAS: That is correct, Commissioner.

PN5061

THE COMMISSIONER: In relation to safety net adjustments if the award is to reflect the 2002 rates, or safety net adjustment then, obviously, allowances must also. You are not making application to vary the award, you are making an award. I can't see how you can set an award with rates of pay in 2002 if you don't have allowances set at 2002 value. Could anybody argue contrary on that point? No?

PN5062

MR HEATHCOTE: Commissioner, it wasn't so much we had significant issues with it, it was really flagging that we didn't know whether, based on this being a new award and submissions and material being put before you about allowances being at a particular value, to then make an automatic assumption that it was okay just to adjust them without actually getting some guidance from yourself. I think you have just given that.

PN5063

THE COMMISSIONER: Well, you can see the logic. I mean, if the rate - because let's face it, gentlemen, we all thought we would do this award, what, two years ago. I think it was two years ago, but I mean if the award - and let's hope that we can do it before the safety net review decision in 2003 - let's make it a 2002 safety net award decision, but the allowances must reflect that because, what do you do, the allowances will always be 12 months behind. It is what the value is now when the award was made.

PN5064

MR HEATHCOTE: Yes.

PN5065

THE COMMISSIONER: Is that okay? You don't really disagree with that anyway, do you?

PN5066

MR HEATHCOTE: There is no argument really. The only observation we were making was that from the RTBU's point of view we would like to presume that it just adjusts to the rate that have been dealt with in arbitration. We will agree that it is appropriate that they ought to be adjusted to reflect 2002 levels.

PN5067

THE COMMISSIONER: Okay, so that is agreed, that is not a major issue. Now, clause 24.4.3. Now, is this still disagreed, whether the term is "employee", or whether it is "loco driver", or "advanced trainee loco driver", is that a disagreed provision, or what?

PN5068

MR HEATHCOTE: I don't think so. Sorry, Commissioner, is that 24.4.3?

PN5069

THE COMMISSIONER: Yes, to do with - I have only got summaries here, I don't have the actual - I'm not pulling up the actual clauses.

PN5070

MR THOMAS: It should be replaced, Commissioner, with "Locomotive Driver" or "Advanced Trainee Locomotive Driver", that is in point 6 of our document - reply document sent to you.

PN5071

THE COMMISSIONER: Yes, but I don't know whether ARGE agree with it, or not, I don't know what the position is.

PN5072

MR THOMAS: I thought it came out of discussions that we had.

PN5073

MR HEATHCOTE: Commissioner, we do agree to it. So long as it refers to both the classification you - - -

PN5074

THE COMMISSIONER: All right, now, is there anything I have forgotten and then if I haven't, where do we go to now?

PN5075

MR THOMAS: Well, I guess, Commissioner, what we have to do is look at that - at your - - -

PN5076

THE COMMISSIONER: We haven't got the number five shifts, I'm sorry, not more than five shifts, but go on, you finish?

PN5077

MR THOMAS: We have to look at that statement, we have to look at your statement about the five shifts and how it mixes in with the guarantee and whether of course it has any other implications, taking into account what you have said here today. That is my feeling, others may differ.

PN5078

THE COMMISSIONER: It is not - this has not - this has not been a simple issue - - -

PN5079

MR THOMAS: No.

PN5080

THE COMMISSIONER: - - - of actually doing or trying to get this award done and I realise you have both got your positions and you have both got your constituents who you are trying to make sure you do the right thing by. But, my decision was based on the material in front of me and if things weren't argued, then I couldn't go any further than what I had before me. I accepted the paper work in front of me and I made rulings on particular provisions and arguments that were put. Now, if arguments weren't put at that stage, then to be quite honest with you, the last thing I want to do is have another Hearing.

PN5081

This is an interim award for a period of time which we agreed upon. Surely the parties can actually mould these clauses in accordance with what that decision said and what I've attempted to clarify here today and I will stop interrupting you now, Mr Thomas.

PN5082

MR THOMAS: Yes, I'm sorry, Commissioner, what we need to ensure is that because the - I suggest the guaranteed payment clause that went before you was not necessarily consistent with the hours of work clause hence we took it that to mould it to the hours clause, that is how we took your statement.

PN5083

THE COMMISSIONER: Yes, but I wasn't moulding it to you - I was moulding it to the 9 day fortnight.

PN5084

MR THOMAS: So in light of what you have said this morning, I guess we have to have some discussions with ARGE to see and to ensure that on the basis of what you have said about both, the hours of work clause and the guarantee clause, that they don't end up inconsistent with one another, that is the - - -

PN5085

THE COMMISSIONER: What is the rationale for a guaranteed hours clause, Mr Thomas?

PN5086

MR THOMAS: Well, the rationale for a guaranteed hours clause historically has been to ensure that if a person is ready, willing and available to work their ordinary hours over a fortnight, or a week, that that is what they get paid. Part of its history, Commissioner, lies in the fact that in many areas where there was seasonal ups and downs, that a person in a grain season area for example may get a peak during the grain season but off season may only be rostered because of work availability to say work 30 hours a week, but because they ready, willing and available the wage had to be paid to 38.

PN5087

THE COMMISSIONER: The concept behind it and correct me if I'm wrong, is to protect people's ordinary hours of work?

PN5088

MR THOMAS: Yes.

PN5089

THE COMMISSIONER: To make sure they don't lose any money - - -

PN5090

MR THOMAS: Yes.

PN5091

THE COMMISSIONER: - - - because of situations that arise where the employer does not actually need them because of the work?

PN5092

MR THOMAS: Yes.

PN5093

THE COMMISSIONER: It is not there for a double whammy, it is not there to make more out of your week?

PN5094

MR THOMAS: Well, the other thing that is taken into account there, Commissioner, if you look at for example, the local award in New South Wales, there are certain payments that are precluded from being taken into account and the guarantee - - -

PN5095

THE COMMISSIONER: Yes.

PN5096

MR THOMAS: - - - and that is the issue about, you know, saying: well, if you are only going to roster them for 30 ordinary hours, you can't start piling overtime onto them and then use all that to satisfy the guarantee and it talks about shift penalties etcetera, etcetera. So there was a balance I think, between what could be taken into account for the guarantee and what could not. But in the old Western Australian system, as I understand it, there was some differences between the way in which the guarantee operated there, while it was a guaranteed week as distinct from fortnight in the Federal Awards and the difference between the State application and the traditional Federal Awards, which have been remarkably similar and - - -

PN5097

THE COMMISSIONER: Well, ARGE took it from a Federal Award?

PN5098

MR THOMAS: Yes, yes, they did. So, you know, I think that is - that is the history as I understood it, it goes way back to the influence of the English rail systems. But that, I think that is what we need to check, Commissioner, your right - you see, in a sense they weren't considered in that fashion between one another and what we attempted to do was to draft a guaranteed clause that also reflected the outcome of the hours clause and that is what we have sought to do. We will have to give due consideration to the comments you have made here this afternoon, as I'm sure ARGE will, and we will talk to them.

PN5099

THE COMMISSIONER: Is there anything I have - there is something else I want to raise with the parties. Mr Heathcote, what is ARGEs position?

PN5100

MR HEATHCOTE: On the guarantee, Commissioner?

PN5101

THE COMMISSIONER: On everything, Mr Heathcote, we might as well throw it all in the pot.

PN5102

MR HEATHCOTE: Well, let me start with the guarantee. ARGEs position is that it was content with a guarantee that provided the employees with their full - with consistently - like shifts that are longer than 8 hours because they were inappropriate for its business and we demonstrated that statistically. The ARGEs position ultimately was was it was prepared to accept 10 hour shifts as being something it could roster for. So on that assumption ARGE didn't make an issue of when overtime was going to kick in because again, ARGEs assumption was if it was entitled to roster for 10 ordinary hours, then those would be ordinary hours of work.

PN5103

THE COMMISSIONER: Well, someone should have said that to me, Mr Heathcote?

PN5104

MR HEATHCOTE: Perhaps that is as you say, the end result from ARGEs point of view, Commissioner, was that it always regarded the guarantee as including all of the hours for which the employee would be paid on that shift and the clause says so. So ARGE never contemplated a situation where it's 10 hour shift would be comprised of 8 ordinary hours and 2 overtime hours. ARGE heard that the union would want a premium rate paid on the last 2 hours but we didn't necessarily regard that as overtime in the sense of being worked outside the ordinary hours of work, nor did we consider that that could be excluded from the guaranteed payment.

PN5105

So ARGE has been going forward on the assumption that all of the hours for which they paid in relation to a 10 hour rostered shift which they would be allowed to roster would be taken into account for the purposes of the guarantee. Now, as far as we can see going back to the intent of a guaranteed clause, it seems to me that we have - we will address the intention of the clause, that is to make sure that somebody gets a full weeks work and gets paid for it. It seems that if the union's position is adopted, the effect of it will be that our 10 hour shift or 11 hour/12 hour shift, will for the guaranteed be 8 hours.

PN5106

If somebody works their whole 38 hours in four shifts, then we are going to end up sticking our hand in our pocket to pay somebody to do nothing and I suspect that is the union's preferred position, it is certainly not ours. From ARGEs point of view, what it has got in its guarantee clause is what it means, the - wants to pay - well, wants all the wages paid in respect of a shift to be taken into account for the purposes of discharging its obligations under guarantee.

PN5107

THE COMMISSIONER: I'm not taking submissions, all I'm doing is - Mr Thomas said he will have to re-visit, considering the comments I've made, so I don't really want a submission of something I didn't hear when I was hearing this matter. I just want to know whether ARGE now will have dialogue with the union and I will ask Mr Muire and Mr Mossenton too in regards to their position but can the parties work out this draft in discussion with each other? Bearing in mind this happens to be a safety net award which is interim of nature and the parties are negotiating with an enterprise agreement. Now, I would envisage in other agreements that operate in the rail industry a lot of these little clauses in awards are actually bargained out.

PN5108

Now, there is no guarantee, I don't know about that. Excuse the choice of my word there, but the parties are, I think, still in negotiations for an agreement. I don't know that an agreement has been reached. So there are a lot of little issues that impinge upon this. So getting back to the basics, are you going to have talks with the unions in regards to settling these orders, having regard to what I have said today in relation to that decision.

PN5109

MR HEATHCOTE: Absolutely, Commissioner. I think our own observations of the award as it has been put together indicate that it has been a difficult exercise to do given that the clauses were drafted by different draftsmen and brought together. There is some issues in relation to terminology and consistency throughout which will need to be gone through once the substantive stuff is - we see there is some significant benefit in ARGE and the ARTBIU and the other unions to the extent that they want to be involved in working through the draft clauses and giving effect to them in a consistent way so that the award does not read like a patchwork. To that end we think that discussions are absolutely critical. They need to be held.

PN5110

THE COMMISSIONER: Mr Muire?

PN5111

MR MUIRE: We most certainly want to take part in those discussions. Our view very much is what you have said, this is a minimum conditions award and therefore those minimum conditions should be reflected in here. Our view is certainly that the guaranteed week is ordinary hours and that we don't account for overtime hours as part of a guarantee but anyhow you are not taking submissions anyway, but we are more than willing to talk to the employer to try and resolve the matter.

PN5112

THE COMMISSIONER: Mr Mossenton, your view, Metals' view.

PN5113

MR MOSSENTON: No, I concur with Mr Muire, Commissioner.

PN5114

THE COMMISSIONER: All right then. All right, well you go in to hold your discussions.

PN5115

MR MUIRE: ..... of the EBA meeting .....

PN5116

MR MOSSENTON: Commissioner, I just heard Jim talk about the EBA meeting but I don't think you have got one lined up for a while, have you?

PN5117

MR MUIRE: It is another 3 weeks.

PN5118

MR MOSSENTON: Yes.

PN5119

THE COMMISSIONER: All right, gentlemen, we just might go off the record while we get some dates and then we will return to the record because there is another clause in the award I want to talk to you about.

OFF THE RECORD [2.50pm]

RESUMED [2.56pm]

PN5120

THE COMMISSIONER: All right, we have been in discussions, the parties have agreed to meet, discuss the issues that we have been discussing this afternoon. The parties are to advise me of the status of their discussions in the draft order by no later than 14 May. If they can advise me earlier that is fine but at least by 14 May I will expect to see an agreed draft order hopefully. I'm just raising now if the parties could turn to clause 29, in particular, 29.4 of the draft interim award number 10 which was forwarded to the parties on 31 March 2003.

PN5121

The difficulty I have with the clause, gentlemen, if you have read it, is that how is that an allowable award matter? Deduction of wages is not a section 89A item. In other words, it is not listed as one of the 20 allowable award matters. Therefore, to be in the award it must come in under section 89A(6), in other words it is a provision that is incident and necessary for the effective operation of the award. Now, in that regard it needs to be linked to an allowable item and/or items.

PN5122

I don't have the award simplification decision in front of me and I neglected to grab that. There was an issue in that particular award before the Full Bench, the Hospitality Award in regards to non-deduction or deduction for breakages. So I don't particularly have that provision and my apologies for not bringing that down. As you people are going to discuss the outstanding issues, I will raise with you my prima facie view that 29.4 is not an allowable award matter.

PN5123

I would suggest that you have a look at the award simplification decision, Full Bench, and that particular provision may require redrafting to make it allowable. Do I have any comments on that at the moment?

PN5124

MR THOMAS: No, i have nothing to add but I see your point.

PN5125

THE COMMISSIONER: Thank you, Mr Thomas.

PN5126

MR MUIRE: Yes, Commissioner, it is appropriate that we take this away and have another look at it.

PN5127

THE COMMISSIONER: No other comments?

PN5128

MR MOSSENTON: Not a problem, yes. No, no, look I'm - - -

PN5129

THE COMMISSIONER: All right. All right, is there anything else? If there is nothing further by 14 May the parties are also to advise me of their position in regards to 29.4 and won't it be nice to finish this award by June this year, so that I keep my marbles and the next thing you will probably give me, although you probably won't, is your enterprise bargaining negotiations.

PN5130

MR THOMAS: Then we will come back in 6 months, Commissioner, on converting it from an interim to a final.

PN5131

THE COMMISSIONER: It will have to go into WA, won't it gentlemen, you are all over there and you prefer face to face, don't you? You would rather the personal touch. All right, well, look, good luck with these discussions. I will hear from you no later 14 May and I wish you all a very happy and very safe few days off.

PN5132

MR THOMAS: Thank you.

PN5133

MR MOSSENTON: Happy Easter.

PN5134

THE COMMISSIONER: Thank you, gentlemen. The Commission is adjourned.

ADJOURNED INDEFINITELY [3.01pm]