C0085/299, Transcript of Proceedings [2003] AIRCTrans 1942 (23 May 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C No 00852 of 1999
C2001/5399

TRAFFIC OPERATING, WORKSHOP AND
MISCELLANEOUS GRADES (AUSTRALIAN
NATIONAL RAILWAYS) AWARD 1978

Review under Item 51, Schedule 5,
Transitional WROLA Act 1996 re
award simplification

Application under section 33 of the Act
on the Commission's own motion to vary
re award simplification

SYDNEY

11.33 AM, THURSDAY, 8 MAY 2003

Hearing Continuing

THESE PROCEEDINGS WERE CONDUCTED BY VIDEO CONFERENCE IN SYDNEY

PN1

THE SENIOR DEPUTY PRESIDENT: Yes, I'll take the appearances in this matter only, please?

PN2

MR A. THOMAS: If the Commission pleases, I appear for the Rail, Tram and Bus Union.

PN3

MS K. FAIRBAIRN: If the Commission pleases, I am appearing on behalf of Tasrail.

PN4

THE SENIOR DEPUTY PRESIDENT: Thank you. In Perth?

PN5

MR D. DETEZ: Thank you, your Honour. I seek leave to appear on behalf of Australian Southern Railroad, if it pleases the Commission.

PN6

THE SENIOR DEPUTY PRESIDENT: Any objection to Mr Detez' leave?

PN7

MR THOMAS: No, your Honour.

PN8

THE SENIOR DEPUTY PRESIDENT: Leave is granted. Yes, Mr Thomas? Can you fill me in on this one, please?

PN9

MR THOMAS: Yes, I can, your Honour. A draft was sent to the Commission some time in the middle of April. On 30 April the parties received a draft put together, I guess, out of the original draft and perused by the Commission's Award Simplification Unit.

PN10

The parties have met to discuss the draft. It has been unfortunately somewhat delayed because of my absence on bereavement leave last week. We did meet yesterday via a telephone link-up and in saying that there is a point that Mr Detez would, I presume, raise at a later stage, the details of which are in a letter to the Commission dated 24 April regarding whether or not they are actually bound by the award in question.

PN11

Putting that to one side and referring to the contents of the draft, we worked through the points raised by the Award Simplification Unit. In doing so it is noted that the overwhelming majority of those comments or points have more to do with form rather than with substance and there are a number of queries or issues that the parties would take with some of those points raised. If you want me to take your Honour to the particulars of those I can do so.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes. The way I have been doing these simplification matters is to ask the parties to address me on the clauses suggested by the Award Simplification Unit with which the parties do not agree. If you agree to the changes proposed by the unit you do not need to address me - they will just be reflected in your next draft - and if there are any where you don't want to go along with what the unit has suggested they should be the subject of discussion between us.

PN13

MR THOMAS: The comments raised by the Award Simplification Unit, your Honour, that the parties had some concern about primarily involve a lack of undertaking as to precisely the point being made in those comments.

PN14

THE SENIOR DEPUTY PRESIDENT: Well, perhaps we should go through the ones that you have difficulty with, Mr Thomas.

PN15

MR THOMAS: Yes. Your Honour, the first one is point 4 which goes to the arrangement. It says:

PN16

PN17

Delete sections and arrange by parts.

PN18

The difficulty we have is that the award is in four sections, so to speak. The Introduction, the Traffic Operating Grades, The Workshops, etc Grades, and a General Conditions section. Then, within each of the sections we have parts. The difficulty we have is that if we delete the term "sections" and put in "parts" we will have parts on top of parts.

PN19

THE SENIOR DEPUTY PRESIDENT: In that case I think we'll leave the sections there. Mr Detez, if you have anything to say, or Ms Fairbairn, if you don't agree with anything Mr Thomas says, please jump in. We'll do it clause by clause, I think.

PN20

MR DETEZ: Yes, thank you, your Honour.

PN21

MR THOMAS: The next is point 15, your Honour, which goes to subclause 11.6.2, page 7 of the draft which the Commission sent to us on 30 April. The Award Simplification Unit states:

PN22

Allowance to be primary obligation -

PN23

and then the first print, R2700, which, we understand, was the section 109 Full Bench decision. Now, clause 11.6.2 will pay an allowance to employees under the circumstances as stated and what needs to be done there, your Honour, is to put the actual quantum.

PN24

THE SENIOR DEPUTY PRESIDENT: Yes.

PN25

MR THOMAS: We are a bit confused as to what that comment by the Award Simplification Unit means in the context of that allowance.

PN26

THE SENIOR DEPUTY PRESIDENT: Yes. Have you gone to the decision to see what the comment in print R2700 was at paragraph 147?

PN27

I don't think I have it here.

PN28

MR THOMAS: Well, I haven't had the opportunity to do that but we can indeed do so.

PN29

MR DETEZ: Your Honour, if I might: I did go to the decision after our discussions yesterday and unfortunately had trouble reconciling the substance in that paragraph 83 with the substance of this particular provision because in that paragraph 83, and around it, it was dealing with the provision of uniforms, gloves and certain protective equipment and the like. It really didn't seem to relate to - well, I couldn't find the link, to be honest.

PN30

THE SENIOR DEPUTY PRESIDENT: Do you have paragraph 83 there?

PN31

MR DETEZ: Sorry, no, I don't. I looked it up on line.

PN32

THE SENIOR DEPUTY PRESIDENT: Because I'm in Sydney and not Melbourne I don't have it with me. I think that clause can stay. I think I understand what the Award Simplification Unit was suggesting but I don't think that it applies in this case. So I think we'll leave clause 11.6.2 as it is.

PN33

MR THOMAS: The next one, your Honour, is point 35 and the clause is 21.26.3. Now, the substance of the clause at the moment is in effect that where an employee is in receipt of the allowance, that is, the disability allowance, then they are not entitled to the payment of other allowances in the clause in the award. The Award Simplification Unit makes the comment, and I quote again:

PN34

Should this exclusion appear at 21.4. to 21.17?

PN35

I'm really not too sure what they mean by that?

PN36

THE SENIOR DEPUTY PRESIDENT: What they mean is - it's a matter of expression - should you at those clauses say that no disability allowance is payable? Let's just go back to 21.4, Working in a Confined Space, and the Award Simplification Unit is suggesting that maybe there you say it's not payable in respect of any time for which the allowance prescribed, but that would then require repetition on a number of occasions. I think it's neater to leave it where it is.

PN37

MR THOMAS: Yes. That was what we thought yesterday may have been the proposition, to repeat it in 13 separate sub-clauses.

PN38

THE SENIOR DEPUTY PRESIDENT: Yes. I think that's unnecessary.

PN39

MR THOMAS: Yes and we also noted that there are other allowances in there that have similar terms. The only other comment we would make on the notes from the unit, your Honour, go to points 51, 52 and 53 where it refers to wording differing from the standard test case standard. We agree they do differ. Those clauses were taken from the Locomotive Award that was done by your Honour, and you may recall that - - -

PN40

THE SENIOR DEPUTY PRESIDENT: Well, then, they must be right, by definition.

PN41

MR THOMAS: We discussed them in some detail, so we would propose that they would remain as is.

PN42

THE SENIOR DEPUTY PRESIDENT: Yes. Well, if I'm in for a penny, I'm in for a pound, so if I'm wrong on the other one I'll be wrong on these.

PN43

MR THOMAS: Yes. We would respectfully submit that you weren't wrong there this time.

PN44

THE SENIOR DEPUTY PRESIDENT: We'll leave those as they are.

PN45

MR THOMAS: Yes. Your Honour, there are a number of other comments that do require some changes. The parties have discussed the nature of some of those changes and we will then attempt to rectify the situation in the next draft.

PN46

There are, your Honour, some further issues. The employers raised with me yesterday why the award didn't make provision for temporary employment. My response was that the current award didn't provide for temporary employment. However, be that as it may, we are amendable to putting the Temporary Employment clause in there. That reflects the fairly standard provision that you see in many awards today and it's also seen in the Locomotive Award.

PN47

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I take the view that if the parties consent to matters that are not perhaps strictly award simplification matters but if they are variations by agreement it's not necessary to make a separate application for variation. So if there's agreement for inclusion of a Temporary Employment clause by all means do it and as long as I'm satisfied with it then it will go into the award.

PN48

MR THOMAS: Yes, thank you, your Honour. The next point is subclause 12.4 on page 10 and in particular 12.4.1 and 12.4.2, which repeat themselves so I need to go back and look at the current award and remedy that situation.

PN49

MS FAIRBAIRN: Your Honour, if I may: it was just a matter of a couple of words that are different, when Mr Thomas obviously transferred it over. It's just a matter of a couple of words saying "28 consecutive days" instead of repeating "10 consecutive fortnightly periods".

PN50

THE SENIOR DEPUTY PRESIDENT: So 12.4.2 should be "28 consecutive days"?

PN51

MS FAIRBAIRN: Yes, pretty much that's the gist of where it's going but Mr Thomas will go back to it.

PN52

THE SENIOR DEPUTY PRESIDENT: Yes. Well, if that's all that's required there that amendment will be made.

PN53

MR THOMAS: Your Honour, the next point is in subclause 41.2 which concerns training. That's on page 41 of the draft. Tasrail has sought that the second dot point, which refers to "recommending individual employees for training and re-classification" be deleted from the draft. The reason for that, as I understand it, is that the clause which clause 41 is taken from, which is a rather large clause in an appendix of the existing award on training committees and structure, etc, does not contain any reference to that function.

PN54

Now, our view is that if that is the case then we don't have a problem deleting it, as in the alternative it would constitute a new function.

PN55

THE SENIOR DEPUTY PRESIDENT: Yes. That can go then, can it?

PN56

MR THOMAS: Yes - - -

PN57

THE SENIOR DEPUTY PRESIDENT: We'll delete that then.

PN58

MR THOMAS: - - - on the basis that it's not in the existing award.

PN59

THE SENIOR DEPUTY PRESIDENT: Well, you can check that. If it is then you had better let me know.

PN60

MR THOMAS: Yes, your Honour. The next provision is that the current award contains an Extra Rates Not Cumulative clause which has been omitted from the draft. It needs to be included. The omission lay with me, your Honour. I left it out of the first draft wed put together. So we can re-insert that provision.

PN61

THE SENIOR DEPUTY PRESIDENT: Yes. It take it it's allowable?

PN62

MR THOMAS: Oh, yes. It simply says that you can't double up on your shift penalties. We need to finalise the minimum rates adjustment and we have a formula or methodology to do that. That will be consistent with what we did in the Locomotive Award. So some work needs to be done there.

PN63

In that context the issue of the Definitions, or job descriptions, was raised. There are two points within that. The current award contains the job descriptions or job definitions in an appendix. What was discussed yesterday was whether it should appear either in the Definitions clause, or indeed a subclause within the Classifications and Wages clause or an alternative was discussed yesterday as to, why don't we just leave it in an appendix?

PN64

Now, none of us have any objections to it remaining as an appendix but we make that proposal to the Commission as to whether the Commission would see that is appropriate or that it should appear more in the main body of the award.

PN65

THE SENIOR DEPUTY PRESIDENT: My instinct is that it should appear in the body of the award. Let me just have a look at it. Is it Appendix A that deals with generic work, double standards?

PN66

MR THOMAS: That's correct, yes.

PN67

MS FAIRBAIRN: Yes, your Honour.

PN68

THE SENIOR DEPUTY PRESIDENT: It is a very large appendix. That might be why it's not in the body of the award.

PN69

MR THOMAS: On that issue, your Honour, I can say that that appendix will be subject to some editing on the basis that some of the work that was performed by the old Australian National is now no longer performed by either of the two employers. For example, neither of the employers operates passenger services. There's also a question-mark over whether or not - well, certainly Tasrail employs classifications in the building trades. So we have to tidy that up to ensure that the position descriptions align with the work that's currently performed. That will reduce the length of that appendix.

PN70

THE SENIOR DEPUTY PRESIDENT: Yes. The appendix, by its introduction, indicates that:

PN71

The attached work level standards are designed to provide a basis for the uniform and consistent classification of positions.

PN72

I think, given that that's the purpose of the appendix, it might be better to leave it as an appendix.

PN73

MR THOMAS: All right, thank you, your Honour. Two points that were raised with me subsequent to yesterday's telephone link-up. Firstly, I understand that Tasrail now want to retain the existing award provisions covering what is known as broken shifts. That is an existing award provision.

PN74

I had deleted them from the draft essentially because the working of broken shifts is more pertinent to passenger train operations and ion particular urban rail operations and, secondly, in that context, broken shifts, to my knowledge, have not been worked in rail systems for many many many years. So that's why they were deleted in the first place. However, given the nature of this exercise, I can't really debate the point, I suppose.

PN75

THE SENIOR DEPUTY PRESIDENT: No, I think that's right. I'll just ask Ms Fairbairn. Ms Fairbairn, you want those retained, do you?

PN76

MS FAIRBAIRN: Yes. The clause in part II, Broken Shifts, and also within the definition, Tasrail would like that to remain but do acknowledge that at the moment they're not using broken shifts, but they would like to have that.

PN77

THE SENIOR DEPUTY PRESIDENT: Well, in light of that, Mr Thomas, they should remain.

PN78

MR THOMAS: Yes, your Honour. We can insert those back. The second matter that was raised with me is one that was the subject of some controversy in the Locomotive Award and that was as to length of shifts. You will recall the 12-hour shift work issue. That was just raised with me this morning. I'll take that for consideration, also being conscious of the fact that it was arbitrated in a similar award which should influence my thinking, I suppose.

PN79

THE SENIOR DEPUTY PRESIDENT: I would hope so, I would expect so.

PN80

MR THOMAS: So, your Honour, that, save for Mr Detez' comment about ASRs respondency and any other comments the parties may wish to make, I think is a summary of where we're at.

PN81

THE SENIOR DEPUTY PRESIDENT: Has a dispute been found with Australian Southern Railroad Group?

PN82

MR THOMAS: Yes.

PN83

THE SENIOR DEPUTY PRESIDENT: So an award binding that entity could be made on the basis of that dispute finding?

PN84

MR THOMAS: Correct. That is what was done with the Locomotive Award, you will recall, your Honour.

PN85

THE SENIOR DEPUTY PRESIDENT: Yes - although I notice that Mr Detez suggests that nobody is employed in the classifications covered by the award. What do you say about that?

PN86

MR THOMAS: Well, what we say to that, your Honour, depends on the definition in the award. Our concern is that when ASR was first formed it entitled the shunting time worked under the classification "power shunter". They have since expanded the range of functions.

PN87

Now, in general terms that doesn't then mean that by taking an existing classification and expanding its range they all of a sudden become award free. In our view, to follow that approach would mean that any employer, simply by changing some work inherent in the classification, becomes award-free and I don't think that's the approach and it's certainly not consistent with the nature of, say, the Transmission of Business provisions which are about ensuring employers do not avoid their award responsibilities.

PN88

So what I can say, without going into in-depth submissions, if it ever comes to that, is that, in our view, ASR are still bound by this award and if there is a need to do a work value because an existing classification has had its duties expanded or its work value increased, then we can do that. At that time it can be determined whether or not the classification is more appropriate for the Locomotive Award or for this award. If it is the case that it should go into the Locomotive award then we can do that and delete their respondency. One of my concerns, your Honour, is that we're getting tangled up in what could be a complicated exercise in a matter which is complicated enough without throwing a bit more into it.

PN89

THE SENIOR DEPUTY PRESIDENT: Yes. I don't intend to get into that. Mr Detez, what do you say?

PN90

MR DETEZ: That you, your Honour. Perhaps I'll just respond to Mr Thomas' comment in terms of award-free. It's not our intention to keep this position award-free, and I think we've made that clear in the correspondence to you. We're not out to try to have this role sitting in some void notwithstanding obviously it's covered by a certified agreement at the moment.

PN91

The first thing to me that seemed the logical thing to do is to say that this award prescribes the work. You've just flicked through the appendix, for example, which details the definitions for the positions, and I would challenge anyone to find any description in that appendix that actually aligns with the work that is undertaken by a power shunter.

PN92

Now, I acknowledge, as I have done in the discussions with Mr Thomas, that there is a good part of the job that can relate to bits and pieces in that award - there is no question about that - but there are other substantial parts that are not. So, from a practical point of view, that's the first issue, that if it was the case that we needed to determine the classification of power shunter in ASR and what might his rate of pay be, or the like, then I honestly believe you would not be able to discover that from this award.

PN93

So the position that ASR saw as being most appropriate would be that this classification is a new classification that was created at the time of ASRs business coming into being. It was an amalgam of a number of functions from this award and from the Locomotive Award and in fact probably some even from the Clerical Award as well for that matter. So it is essentially a new position.

PN94

We are also mindful of the fact that there are only 14 of these people in the business. ASRs interest in an award which, as you've seen, is quite extensive and covers a whole range of work which ASR has absolutely no interest in, and also its interest in keeping the number of awards to which it might be a respondent to a minimum, suggest that the appropriate action would be, given that they do actually work side by side on occasions with locomotive operators or locomotive drivers, we could do an exercise amongst ourselves of a work value nature and make a variation to the Locomotive Award.

PN95

I might just draw your attention to some comments that were made previously. As you know, this exercise has been going on for a long time and I haven't been involved in it from the start, but there was certainly a desire expressed by ASR, and I think by yourself, that if there was an opportunity to reduce the amount of awards that were around through amalgamation, or whatever, then we certainly should look at that exercise.

PN96

From our point of view, to have an award which covers a whole range of work that could be more simply accommodated by what I think is a relatively small operation - I'm not saying the exercise in itself would be necessarily an easy one, that would be something for Mr Thomas and myself to try to work out - I would have thought would be the more appropriate position from the company's perspective.

PN97

There's also the argument about whether or not we might be able to put forward a solid argument that, under 149(1), there would be a position that we could put to the Commission that the company would not be bound by the award notwithstanding it's been sitting there for a long long time, under the assumption that under 149(1)(d) it may well have bound ASR.

PN98

However, I think this is a different exercise because of the fact that we're now talking about a new award that's likely to make ASR a named respondent. That does put a different spin on it. I was looking at it and I was thinking, from a fairly pragmatic point of view, about reducing the number of awards that the company were going to be a respondent to but certainly not aiming to have this classification sitting out there in no-man's-land, if I could use that expression, being award free.

PN99

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Ms Fairbairn?

PN100

MS FAIRBAIRN: Thank you, your Honour. I don't really have anything to add.

PN101

THE SENIOR DEPUTY PRESIDENT: Very well. You don't say the same with respect to Tasrail?

PN102

MS FAIRBAIRN: No, no.

PN103

THE SENIOR DEPUTY PRESIDENT: No, very well. Well, gentlemen, I agree with both of you. What I'm going to do is bind ASR to the new award on the basis of the dispute finding that has been made between the union and ASR and I commend the course of action that you propose, Mr Detez, that you and Mr Thomas have discussions to see if you can rationalise the situation so that appropriate applications to vary or to set aside awards can be made.

PN104

This award simplification exercise must come to an end some time and if we bow to the position of power shunters at this stage this exercise will never conclude. So the position of the power shunter, I think, should be an exercise for another day. In the meantime the simplified award will bind ASR on the basis of the dispute finding between the union and that organisation.

PN105

MR DETEZ: Sorry, your Honour - can I just make another couple of points? Mr Thomas mentioned the dispute finding. I'm at somewhat of a disadvantage in that I think that that dispute finding may have occurred before AIG acquired ASRs business and I've searched our records and I'm unable to find it. I'm not suggesting that it doesn't exist but as a result - - -

PN106

THE SENIOR DEPUTY PRESIDENT: Well, if it doesn't exist Mr Thomas will rectify that by serving a log of claims.

PN107

MR DETEZ: I'm aware that it can be rectified very quickly, your Honour.

PN108

THE SENIOR DEPUTY PRESIDENT: I wasn't being flippant.

PN109

MR DETEZ: No, no.

PN110

THE SENIOR DEPUTY PRESIDENT: We do need a jurisdictional foundation and I'll leave it to Mr Thomas to identify the relevant dispute. If he can't, well then, he can rectify it by serving another log of claims.

PN111

MR DETEZ: Yes. I was mindful of the comments that you made when you made the Locomotive Award, about the need for that aspect to be covered off.

PN112

THE SENIOR DEPUTY PRESIDENT: Yes, and I thank you for drawing that to my attention.

PN113

MR THOMAS: Your Honour, there is a dispute and you may recall or the records will show that I forwarded a copy of the dispute finding to the Commission under that previous award. If Mr Detez likes, I can also forward to him a copy of the Commission's formal dispute finding.

PN114

THE SENIOR DEPUTY PRESIDENT: I think that's desirable and you might forward it to me again.

PN115

MR DETEZ: Just one other point, your Honour - and this may have been an error in judgment on my part - but what I did communicate in the teleconference we had yesterday was that it may have been, given our position, inappropriate for me to make comments on the award. While I did take in the discussions to some extent I felt that it might have been inappropriate if I was saying in one breath that we shouldn't be a respondent to the new award and then I passed judgment in relation to its content.

PN116

So that's another matter that I think, given your comments today, Mr Thomas, Ms Fairbairn and myself will obviously need to have some further discussions about. There are obviously some other matters that Mr Thomas has raised today anyway - for example, the shift length question was one that I would have raised if we were going to be bound by the awards.

PN117

THE SENIOR DEPUTY PRESIDENT: Yes. Well, you're obviously going to have further discussions. We'll have to have another hearing, unfortunately, to see where we've reached. I've just gone through some of my previous notes. It's suggested that the dispute finding that involves ASR is C No 2978 of 2000, or it might be 22978, I'm not sure. That was the dispute finding that I was told about. So it does appear that there is a dispute between the union and ASR but you might just confirm that.

PN118

MR THOMAS: Your Honour, I recall Mr Detez writing to the Commission suggesting that the heading should have been Australian Southern Railroad and the response from the Commission was that the dispute was found under the name of ASR.

PN119

THE SENIOR DEPUTY PRESIDENT: Yes. Well, anyway, that's a matter that can be sorted out by reference to the records of the Commission. There's correspondence from SERCO saying that they're not involved in these proceedings. You're not seeking to have them involved?

PN120

MR THOMAS: I'm not seeking to have SERCO involved in this award. The salary award is a different matter.

PN121

THE SENIOR DEPUTY PRESIDENT: No, very well. So the only employer respondents are Tasrail and ASR?

PN122

MR THOMAS: That's correct.

PN123

THE SENIOR DEPUTY PRESIDENT: Yes. Very well. We'll adjourn this matter to a date which I'll fix at the end of the hearing of all of these matters. In the meantime progress will be made on the draft. There are a few matts that were resolved today. There are a few matters that need to be resolved between the parties. I am determined that this file will be closed by the end of June. So we'll fix a hearing in the not too distant future so that we can meet my deadline.

ADJOURNED UNTIL WEDNESDAY, 28 MAY 2003 [12.10pm]