AG2003/1256, Transcript of Proceedings [2003] AIRCTrans 2195 (12 June 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DANGERFIELD

AG2003/1256

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Booth Transport Pty Ltd and Another for
certification of the Booth Transport Drivers
Agreement 2002

ADELAIDE

10.45 AM, MONDAY, 26 MAY 2003

Continued from 7.5.03

PN99

THE COMMISSIONER: Now, we have had this matter on before. I take it there is no change in the appearances?

PN100

MR SHEARER: Just one, if I may, your Honour. We have with us today in addition to last time, we have Mr Aub Rohlach, who is the Manager of the Tanunda Depot for Booth Transport.

PN101

THE COMMISSIONER: Mr?

PN102

MR SHEARER: Aub Rohlach.

PN103

THE COMMISSIONER: Rohlach, thanks. Mr Bell, you are still for the union?

PN104

MR BELL: Yes, Commissioner.

PN105

THE COMMISSIONER: Mr Bell, I think you are taking up the batting?

PN106

MR BELL: Yes, Commissioner, at the last hearing I raised some concerns that we had with the agreement and I indicated that I wished to bring some witnesses to the fore but over the duration of the last couple of weeks there has been some meetings with the members and I am here today to present some evidence across the table, but I have no witnesses who are willing to speak at this particular stage. Commissioner, I just want to make it quite clear that once again we do not have a problem with the content of the agreement as far as the long distance drivers go and it is the concerns that we raise today in relation to the process that has gone through the agreement, through the voting process and also I will reinforce the position in relation to the Tanunda Depot employees.

PN107

We have mixed messages from the Tanunda Depot employees whether they took part in the voting process or whether they didn't take part in the voting process, but if I can turn to paragraph 21 of the transcript. Mr Shearer indicates on transcript there that the voting result was 84.4 out of 192 of 228 employees and he goes into some detail in relation to the percentages of each depot and I wish to tender a email sent to me by Mr Shearer on 11 February which indicates to the union the number of people who voted in the agreement and the percentages which, if you take any notice, they appear to match exactly what Mr Shearer said. So the question is raised through the Commission how can a vote that has taken place in April/May with the results being exactly the same as February? Is it purely a coincidence?

PN108

THE COMMISSIONER: Mr Shearer, do you have any objection to this email?

PN109

MR SHEARER: No, I was going to present it myself today, your Honour, no trouble at all.

PN110

THE COMMISSIONER: There are in fact - no, I happen to have two copies. There is just the one sheet, isn't it? I've got two copies.

PN111

MR BELL: That is correct.

PN112

THE COMMISSIONER: Yes, we will mark that as exhibit U1.

PN113

MR BELL: One copy was for the employer but he has already got one.

PN114

THE COMMISSIONER: Sorry, Mr Bell?

PN115

MR BELL: One copy was for the employer.

EXHIBIT #U1 EMAIL TO MR BELL FROM MR SHEARER DATED 11 FEBRUARY

PN116

MR BELL: That is the first point of our concerns, Commissioner. The next point of our concerns relates to employees being paid and I just want to reinforce my position of the last hearing is that the company seeks to convert weekly or hourly paid employees into long distance drivers in relation to their provisions of payment. That is, that they are saying from a zone A, a zone B and a zone C. If you work in zone C, if you do your trip in zone C which is the true long distance section then you will be paid under the kilometre rates that they have agreed to.

PN117

The zone B is a mixture of kilometre rates which is a shorter radius than the 500 kilometres. It incorporates the depots that are around the Tanunda area and all the wineries where they pick up from. The concern we have is that it is a radius emanating from the GPO of Adelaide and the employees of Tanunda work out of the Tanunda Depot which is some 85 kilometres already into the radius. The next port of call at Clare or Berri is into zone B, so they must be paid under the kilometre rate method. I provide some calculations in relation to what we believe would be the differences for sectors and I've only given two examples.

PN118

THE COMMISSIONER: I guess this is more a sort of a working - it is not evidence it is such, is it? It is more a working paper, would that be the - - -

PN119

MR BELL: Well, it is the best I can offer today, Commissioner, in relation to - and I'm sure that the company will be able to answer any concerns that we may raise with this.

PN120

THE COMMISSIONER: All right, well, we will perhaps mark it as exhibit U2.

EXHIBIT #U2 CALCULATIONS RE DIFFERENCES FOR SECTORS

PN121

MR BELL: Commissioner, if I can just talk you through the comparisons there. This is for a comparison of hourly rates versus kilometre rates. The first box is if they are paid by the kilometre rates as per the agreement at 30.39 cents per kilometre for the load and unload rate which is included. There is 538 kilometres for the round trip, Berri to Reynella and I understand that is from Tanunda, Berri, Reynella, Tanunda. There's two load and unload rates at $21.58 giving a total payment of $206.66 for the day.

PN122

If an employee on an hourly rate method, a permanent employee, was paid on that basis on an 11-1/2 hour day then he would receive in addition to the $206 a meal allowance payment of $10.12. The overall payment for the day would be some $9.59 less than what the company is applying on the day. Now, that in itself is probably not too much of a disadvantage for a weekly employee on the daily rate, however, when you look at the next box down which is the payment for a person or a weekly employee working on a Saturday he would be $118 short of what he would achieve if he had been paid on hours at overtime. On the next box down he would be $132 short of what he should have received.

PN123

The next page is marked: Casual Employees. The same procedure or process has been applied and the differences are noted on - for a casual employee working on a daily basis he would be $16.15 short on a Monday to Friday basis. On a Saturday he would be $124 short of what he would get paid under the award and on a Sunday he would be $140 short of what he would get paid on the award. That is one example in relation to that run. An employee on a Monday to Friday would be $47 short in their pay and that would be just mostly the equivalent of the meal allowance that he is not getting paid.

PN124

THE COMMISSIONER: Sorry, where are we looking at there?

PN125

MR BELL: I haven't included that, Commissioner, but on the basis of the first box he would be $47 short for the week if he is working a 5-day week and not working a Saturday. If he includes a Saturday in he loses the extra $118, a total of around $165 that he is not getting paid for working under that kilometre rate. Now, if I can draw your attention to the next page on that example I've given, it is called a split load payment for a permanent and split load for a casual.

PN126

This split load arrangement is where the employee loads up at Peter Lehmann Wines at Tanunda, heads for Berri, he unloads there. He reloads and goes to Reynella and he unloads there and returns to Tanunda and this is all based on B-double work and that is what they typically call a split load. The duration of that takes some 15-1/2 hours. That is the indication that has been given to me that it takes that long to perform these functions.

PN127

So based on what the company is proposing on the first box they are paid that, and they get an additional two load and unload rates bringing the whole rate for that day to $249.82. If you are working through an hourly rate method you would be $73 short on a Monday to Friday. If you worked on a Saturday you would be $182 short and if you worked on a Sunday you would be $196.79 short. The last page indicates the differences for a casual. On a Monday to Friday a casual would be $91 short for the day, $200 short on the Saturday and $215 on short on a Sunday.

PN128

THE COMMISSIONER: That last one is for, it is the same trip?

PN129

MR BELL: It is the same job but performed by a casual.

PN130

THE COMMISSIONER: A casual.

PN131

MR BELL: And one of the concerns that we would raise would be that if employees convert to this zone allowance there's no provision or there is no indicated provision of what would be a minimum payment for the drivers whether they are classed as - they are covered by the Transport Workers 1998 Award, or whether they are covered by the Transport Workers Long Distance Drivers Award. The Transport Workers '98 Award provides for a minimum of 5 days work, work Monday to Friday. The Long Distance Drivers Award provides for a minimum of fortnightly payment to be if you don't get the kilometres up during the week.

PN132

Now, it would seem that the company wants to convert employees to long distance drivers doing medium haul work and having the flexibility to work them any 5 or any 7 days of the week for no off-sets and that is the concern to us is that they can work them and say well you have earned the minimum fortnightly wage this fortnight so you don't need to work 2 or 3 days this week. With the long distance operation it has not been an issue because there has always - there's been work available and the long distance drivers seem to get their kilometres and more than earn over the average of the fortnight.

PN133

It does tend to give the company an opportunity to casualise, for want of a better term, their employees who currently work at an hourly rate out at Tanunda and those are the concerns that we raise. Commissioner, we also spoke about the Booth Transport Agreement for the Tanunda employees and the zone B payment and I'm not sure whether that has been handed up as yet, but I will hand it up today as what we discussed in the last part of the hearing. Do you want a copy, Mr Shearer?

PN134

MR SHEARER: I've got one, thank you.

PN135

THE COMMISSIONER: So what am I looking at here?

PN136

MR BELL: This is, as I raised at the last part of the hearing, which is not part of the agreement but which is spoken to by myself and by Mr Shearer, is a result of the meetings held with the local drivers up there and the understanding that was supposedly put into place or by the group drivers and the understanding by the drivers up there was that it was going to form part of the agreement but as Mr Shearer has indicated it does not form part of the agreement.

PN137

I want to just draw your attention to what I raised last time is that in point 2 or paragraph 2, 2.1.2, the loading and unloading where it says the words: the loading/unloading time exceeds 2.5. This is in relation to the issue I've raised where the company has indicated that in the trip times there is 1-1/2 hours allowed to load and unload, but if you exceed that we don't start paying you again until you exceed 2-1/2 hours. So they are effectively giving an hour's time to the company. It is an hour for nothing. The example goes on into 2.2 as to how it applies.

PN138

THE COMMISSIONER: So this is a document that was given to the workers prior to them voting on the agreement?

PN139

MR SHEARER: No.

PN140

MR BELL: No.

PN141

THE COMMISSIONER: No?

PN142

MR BELL: No.

PN143

THE COMMISSIONER: Well, I just wanted to understand the - when did this first see the light of day, this document?

PN144

MR SHEARER: Perhaps I can help with that.

PN145

THE COMMISSIONER: Yes, Mr Shearer, please.

PN146

MR SHEARER: Following the negotiation of an agreement, there were many months of discussions both with the union and with drivers as the union began to get more involved. That culminated as I read into transcript last time in a discussion meeting with Tanunda drivers, local drivers out at the Tanunda depot, including a TWU representative to try and address the operational issues that were at the core of the concerns and it really came to this question of: what happens if we are kept waiting by a customer to load or not.

PN147

The company gave an undertaking as a result of those discussions to work out those operational issues and it was agreed that because the agreement had already been voted on and that there was no great desire to go back and start the process again and have another vote and the company was giving an assurance. It said that it will put this agreement - this arrangement in place locally. It was specifically said at that meeting, including - with the TWU present, that it would not form part of the agreement formally because they may need to review it fairly quickly if it is not working well, they change, and they didn't want to have to come back to Commission to vary an attachment to an agreement.

PN148

But it was a very clear undertaking from the company to the Tanunda drivers that these issues would be dealt with and in fact much of that has already occurred and several of the gentlemen here were actually at that meeting and it was designed to tackle this key issue of waiting which occurs on occasions to Tanunda drivers.

PN149

THE COMMISSIONER: So when was this actually signed?

PN150

MR SHEARER: That was - I would have to confirm the exact date, but it was after - I think it was on 17 September last year or thereabouts.

PN151

THE COMMISSIONER: Because I should just indicate for the record that I don't have - well, the copy that I have got is a blank copy, it is unsigned and undated. It was signed for and on behalf of Booth Transport Proprietary Limited by whom?

PN152

MR SHEARER: By - I think it was Aub wasn't it? Did you sign that Aub or was it Andre? I think it was you, wasn't it?

PN153

MR ROHLACH: Yes, it was.

PN154

MR SHEARER: Yes, and the driver - yes, but on behalf of the company it was Mr Aub Rohlach who is the Tanunda Depot Manager.

PN155

THE COMMISSIONER: Tanunda Depot Manager and for the employees?

PN156

MR SHEARER: I'm not sure whose the signature was, we can - I don't have a signed copy with me. We can get that - - -

PN157

THE COMMISSIONER: Well, look, what I will do, I will accept this as an exhibit, but what I would like is a copy of the signed and dated version.

EXHIBIT #U3 COPY OF UNSIGNED AND UNDATED AGREEMENT

PN158

MR SHEARER: Certainly.

PN159

THE COMMISSIONER: So I will accept this at the moment just as a - temporary purposes but if you could provide a signed and dated copy, Mr Shearer.

PN160

MR SHEARER: Certainly, yes.

PN161

THE COMMISSIONER: So we are back with you, Mr Bell.

PN162

MR BELL: Thank you, Commissioner. What Mr Shearer has just indicated to you is that it was signed on 17 September after a vote took place and that brings us to our point one, again, this morning, as we are concerned that the process as required under the Act, that the 14 days has to elapsed, wasn't carried out correctly and that may be an issue that needs to be addressed by the company again. I think that in relation to the objections that we have raised so far, we want to make it quite clear that we do not intend to make this process any more difficult than it is already.

PN163

We do not like to see employees in one sector of the work-force being disadvantaged whether the company does it intentionally or whether it is not done at all and that is the sole purpose of this objection. We are not about holding up enterprise agreements when there is a majority of employees who will benefit by it, and we suggest that the company should have another look at what they have done in relation to this and go back to the drawing board and see if it can be rectified.

PN164

THE COMMISSIONER: So you are saying the majority will benefit from this agreement?

PN165

MR BELL: There is no doubt about that, we indicated that in our first hearing, Commissioner, but there is a discrete part of the work-force at Tanunda who may very well be disadvantaged by the certifying of this agreement. Nothing further, Commissioner.

PN166

THE COMMISSIONER: And, Mr Bell, I take it that you are then objecting to the certification of this agreement?

PN167

MR BELL: On the basis - - -

PN168

THE COMMISSIONER: You want the Commission to refuse certification?

PN169

MR BELL: On the basis that at point one, the time frames indicated in the statutory declarations by the company are not correct, and a vote did not take place after 14 days of the document being circulated to all employees. And on the basis that the discrete unit of Tanunda employees maybe disadvantaged by this certification of this agreement.

PN170

THE COMMISSIONER: How employees are we talking about there who maybe disadvantaged?

PN171

MR BELL: Well, I'm not sure, but it has been indicated to me about six to eight. There are a lot of long distance drivers that work out of Tanunda.

PN172

THE COMMISSIONER: All right, okay. Mr Shearer?

PN173

MR SHEARER: Thank you, your Honour. Perhaps dealing with things in a slightly different order because it may assist you in your considerations. The company is quite satisfied that local drivers based at Tanunda and elsewhere, in other jurisdictions, won't be disadvantaged. In fact the company own calculations have shown it quite clearly, as they review their position following the last hearing, that the company would actually be better off simply paying under the award. And the company has no difficulty in providing an assurance that no locally based driver given that that is where the concern has been raised, would be disadvantaged as per - compared to the award at all.

PN174

The alternative for the company which was discussed at great length, was that the company could have chosen some time ago to re-organise the work, relocate vehicles and do a number of things that would actually advantage the company significantly. But because of the company's good and sensible approach to industrial relations, they realised that might upset a few people, so they have sought to avoid doing that. We dispute some - the terms we use, assessment of the impact on local drivers. It is also interesting to note that under exhibit U2, a trip of 538 kilometres, that would actually fall under the Transport Workers' Long Distance Drivers' Award, being over the 500 kilometre threshold.

PN175

And so the proper comparison for the trip, based on 538 kilometres would be against the Transport Workers' Long Distance Drivers' Award, not the Transport Workers' 1998 Award, which of course, is for trips below 200, unless they are across a State border and in excess of 200. And of course, unless one takes it out to a figure, something like 538, it is very difficult to demonstrate any disadvantage in that volume of kilometres to point to any disadvantage. But you are then comparing apples and oranges because the Long Distance Award, just to make sure we are reading from the same page.

PN176

The same basic rate, let us say a Grade 6 semi-trailer driver, and forgetting for a moment the Award Safety Net increase that no doubt will flow through today, it is $515 a week. The hourly rate is derived from that by dividing by 40 - this is to give you the hourly rate in both awards. Then in the Long Distance Awards, you multiply that by 1.3 which adds a 30 per cent disability component and you multiply that by 1.2 which adds a 20 per cent overtime component and then you divide that by 75 which is the notional average speed built into the Long Distance Drivers' Award.

PN177

The Long Distance Award provides under clause 19, several methods for payment. One of them is just to pay straight cents per kilometre that you derive from that calculation. The other gives three options for paying under the hourly rate method, where you take that initial hourly rate figure and then apply it to the number of hours of actual driving. After you have added the 30 per cent disability, that gives you the loading and unloading rate. Now, if you take the - I think I've misled you a bit there.

PN178

I will just correct that. You take the base hourly rate and for the driving time for a driver under the Long Distance Award, you pay them that base hourly rate plus the 30 per cent and the 20 per cent. For loading and unloading it is just the base hourly plus the 30 per cent. Now, if you are going to do a comparison of a trip of 538 kilometres of the EBA as against the award, the comparison has to be for the number of hours of driving times the award hourly driving rate and the number of hours of loading up then times the award hourly loading/unloading rate, and you don't get these results.

PN179

What you get is a very different result and of course, what the agreement is proposing is that for long distance trips, the hourly rate as per the award will be paid but it will be paid for the appropriate number of hours based on an adjusted average speed. And the award provides specifically for that three options and the fourth option is to go into an EBA and vary that slightly differently yet again. That is what this agreement is proposing to do. In relation to the short trips be they at Tanunda or elsewhere, the zonable approach that is proposed is designed to allow the company to manage things more effectively, provide drivers incentives to get the work done efficiently.

PN180

It does ensure that they will receive rates which are at least equal to the award rate, even for the shorter trips under the '98 Award. Now, with the cents per kilometre method that is used for the short trips in the EBA, you may recall from my comments last time, that we have adjusted the average speed down from 75 to 71. So in other words, it is paying them for even more time. So it is inappropriate just to look straight at the cents per kilometre and effectively we have increased the cents per kilometre figure if you like, for that portion of those particular trips in the shorter zoned area.

PN181

So what the company was seeking to do, was to deal with some operational difficulties it had where some drivers for various reasons may not be performing efficiently. To provide an incentive for them to perform efficiently and ensuring that provided they do, they will certainly be paid on a basis that puts them at no disadvantage compared to the Transport Workers' 1998 Award. We don't believe that the model that has been presented by the union is an appropriate comparison and we think it, you know, unintentionally is misleading in terms of using a longer trip so as to draw out some - an endeavour to draw out some significant variation.

PN182

But as I say, the company is prepared to give an undertaking that drivers working under the local arrangement will not be disadvantaged as per the Transport Workers' 1998 Award.

PN183

THE COMMISSIONER: And when you say drivers working under the local arrangement, you mean the - - -

PN184

MR SHEARER: The zonal arrangement.

PN185

THE COMMISSIONER: Under the zonal arrangement?

PN186

MR SHEARER: Correct, and that seems to be where the unions' concern lies.

PN187

THE COMMISSIONER: And that in effect is the Tanunda employees, Tanunda based employees?

PN188

MR SHEARER: In this State, it is the Tanunda based employees. The union has not raised any objection, nor have any of the drivers in any of the States. As I understand it from Mr Bell's comments this morning, their objection appears to be that the Tanunda depot is - I think he said 85 kilometres from the GPO and therefore it eats up some of that zone structure if you like. Well, again, that is a rather simplistic view of the way it will actually work in practise and the reason that the driver representatives both here and elsewhere were happy with it, is that they know the detail of how they actually work.

PN189

As with all of these arrangements, you Honour, there are swings and roundabouts that apply. There are some trips where the people are better off and some trips where people are slightly worse off. But it is the overall balance that counts and as I say, yet again, the company is prepared to give an undertaking that no driver will be disadvantaged in relation to that zonal work compared to the award.

PN190

THE COMMISSIONER: Compared to the Transport Workers' - - -

PN191

MR SHEARER: 1998 Award, or even the Transport Workers' Long Distance Drivers' Award.

PN192

THE COMMISSIONER: - - - 1998 Award. Either award?

PN193

MR SHEARER: Either award, certainly.

PN194

THE COMMISSIONER: And that undertaking would mean in effect, that you would need to keep full records of course - - -

PN195

MR SHEARER: As they do.

PN196

THE COMMISSIONER: - - - for their details and that the union would, from time to time, presumably be allowed to have a look at those records and compare them against what they would consider they would get under either of those awards?

PN197

MR SHEARER: I don't see any difficulty with that at all. The simple reality is that after the previous hearing, the company thought very seriously about it's options and one of its very clear options was to say: well, forget it, we will just go back to the awards and work from those. Now, for good industrial management reasons, it has decided to persevere. But it is no doubt whatsoever, that the company, financially is better off under the awards, because this agreement provides significant incentives and bonuses for the employees.

PN198

And as the union has acknowledged, particularly in relation to the long distance aspect, it is a good - and I think - and quote; it is a reasonable agreement, as indeed it is. I think there is some misunderstanding on the part of the union, perhaps based on some information they have been given by one or two drivers who have not made sure that they understand precisely how the arrangement will work. In relation to the other key issue. There was an issued mentioned last time which has not been addressed today, and we would like to address on transcript.

PN199

There was an allegation last time that people were victimised depending on the way they voted. There are people here today, including the Tanunda Depot Manager, who would have been the person responsible for victimising, they are prepared to give evidence should that be necessary, that there was no such victimisation. Yes, it is true, it was not a secret ballot, but the Act does not actually require a secret ballot and agreements can be signed by people by way of demonstrating their agreement and of course that means, you know, precisely at least who voted for the agreement, and perhaps who either didn't vote for it or didn't vote at all.

PN200

There also seems to be substantial confusion relating to the vote. Now, the email that you had handed to you this morning, is exhibit U1, refers specifically to the vote that was in May/June. At no time have we purported that there was a subsequent vote. I think there may be perhaps, a misunderstanding in terminology. Following the vote in May/June of last year, I don't have the exact date, but for the purposes of today, May/June is sufficiently far away I guess, to not worry too much about the precise date.

PN201

THE COMMISSIONER: That is May/June of 2002, we are talking about there, are we?

PN202

MR SHEARER: Correct, yes.

PN203

THE COMMISSIONER: Yes.

PN204

MR SHEARER: As I said in transcript last time the company could have simply, if you like - I think I said - charged ahead at that time notwithstanding, subject of course to the Commission certifying the agreement, but it could have sought to charge ahead notwithstanding that there were several drivers at Tanunda who subsequently expressed some concerns. But the company did and it may well prove to be to their disadvantage depending on the way the Commission decides to go. The company sought to resolve those issues both with the drivers and with the TWU and there's a great litany of emails and records of phone conversations which we could put on as exhibits but I really don't think we will need to.

PN205

Suffice to say that we were endeavouring, with the drivers at Tanunda, to deal with the issues and the union was involved in that process for quite some months from around about August of last year onwards. At various times the company and I understood that the union was agreeing to the agreement. In fact, I have an email from Mr Bell to me dated 21 February this year which says:

PN206

Hello Steve, we've looked at the information -

PN207

which was my response to his question about the vote -

PN208

and we are ready to go ahead. What's the next step? If you send us a stat dec I will have the Federal Office prepare one for handing up on lodging your certification.

PN209

At that time we were in no doubt that the union was agreeing fully with the agreement. We are not actually convinced that the principal reason for objection is coming solely from particular drivers at Tanunda. We feel that in fact it has as much, if not more, to do with the fact that this is an agreement between the company and the employees, as distinct from an agreement with the union on the employees' behalf.

PN210

The current agreement, which is still in place, is of course an agreement with the union but again, as I mentioned in transcript last time, that occurred right at the eleventh hour on the decision of the then managing director of the company for industrial reasons only. This time round, again as I said at the last hearing, the employees unanimously did not wish the union to be involved. The union became involved because several employees, as is their right, decided subsequently they would like the union involved.

PN211

So the difficulty we have is that having had substantial negotiations resulting in an agreement, everybody agreeing to that agreement, a vote being held in May/June of 2002 and we were ready to come forward, lodge and proceed, it then just bogged down in a very protracted process which did not result in a change in the agreement. It resulted in the document you have as exhibit U3 to try and address the local issues for Tanunda. Meanwhile around the country the other 220-odd employees were tearing their hair out waiting to find out when on earth the agreement was going to proceed.

PN212

We may well, in your view, be at error in terms of that timeframe and we acknowledge that but in my comments before you last time what I actually said was the agreement was eventually signed on 7 March with the final signature, which was the company's signature, going on 28 March. Now, there has been no malice aforethought, no attempt to subvert anything whatsoever. There has been no indication from any party about a change to the agreement and the company and its employees simply want to proceed with this agreement without mucking around and they are very happy to give that assurance that there will be no disadvantage.

PN213

THE COMMISSIONER: There was only one vote and that vote was in - - -

PN214

MR SHEARER: May/June of last year.

PN215

THE COMMISSIONER: Right.

PN216

MR SHEARER: Correct and we should have just stormed ahead and come straight in and lodged and proceeded and we could have and the company may be hoist by its own petard in terms of - - -

PN217

THE COMMISSIONER: But you didn't because certain employees said: look, we'd like the union to be involved.

PN218

MR SHEARER: Yes.

PN219

THE COMMISSIONER: Discussions then took place with the union. They went on for some time. You thought you had agreement in February of this year but that sort of gradually came apart.

PN220

MR SHEARER: Yes. Since that email that I read out from Mr Bell we were waiting for the union response and as Mr Bell and I will both acknowledge, at various times we both had difficulties with our email systems so one or two emails didn't quite work but we were both, we thought, waiting for the decision out of head office and the union to sign and much to his displeasure probably, but he's just doing his job as are we all, I kept the pressure on Mr Bell for an answer and we finally got one which was that the union is not supporting the agreement.

PN221

So we then said right, well that's it, we will proceed without them on the basis that 84.4 per cent of employees have said very clearly that they want this agreement and the company is in no doubt that this agreement is going to cost them more than the awards and that no single employee is going to be worse off, which is why they're quite happy to give the assurance. But what they are not happy to do and will not do is go back and start all over again, because it's just too much time and cost and they might as well just go with the award, or awards.

PN222

The only other option that I have been able to think of which I think is a very unattractive option because it would have the effect of disaffecting simply because people don't always understand these things, it would be possible in theory to ensure that the EBA does not apply, or is not applied, to employees doing local work at the Tanunda Depot. But then straight away you've got a very difficult job of explaining to local drivers in other states why is that, are they getting a special deal, and even with explanation people just have difficulty. I guess they don't all understand and both to understand. They will just go on their suspicions.

PN223

Now, I think with the assurance from the company that they are happy to give, which is that no-one will be disadvantaged, the better course would certainly seem to be to proceed with certification and the company and the employees can get on with it with that assurance.

PN224

THE COMMISSIONER: When you say the vote took place in May/June of last year, when was the actual closure, the actual final day for voting?

PN225

MR SHEARER: They had about a week, I think - it was a couple of weeks. It would have been mid-June, I think, would have been the final - we can certainly pull out and send to you the documentation. It was all very carefully recorded. The documents all still exist and it's just a pity that we didn't go ahead at the time. So in our view the - - -

PN226

THE COMMISSIONER: The agreement wasn't actually signed pursuant to that vote until March of this year.

PN227

MR SHEARER: Because of the efforts to resolve it and the view that we have taken is that it was March this year that the agreement was formally made. It has not been instituted at all prior to that.

PN228

THE COMMISSIONER: Do you have any information on any change to the composition of the workforce in that period of 7 or 8 months or so?

PN229

MR SHEARER: Yes. We've checked that. I specifically asked the company about that and they feel that something under 10 per cent of changes occurred. Given that they had an 84.4 per cent majority, the company is quite satisfied, and again if need be we can produce records of new employees and departures and so on. But this company has a fairly consistent workforce because it's one of the better companies. So even if the 10 per cent of change were to cause a reversal and of course specifically in terms of the vote you could double that, so even if you take off 20 per cent you still get 64.4 per cent.

PN230

But in reality of course the vast majority of the 10 per cent would have voted for it for exactly the same reasons that the other 84.4 per cent have. So even in the worst cast scenario we're entirely satisfied that the majority of employees were in favour and remain in favour of this agreement because, as the union says, it's a good agreement.

PN231

THE COMMISSIONER: Anything further?

PN232

MR SHEARER: No.

PN233

THE COMMISSIONER: Mr Bell, what do you say to the company's proposal that it can given an undertaking and that would be an undertaking pursuant to section 170LV of the Act, which I'll read for the sake of the record. Section 170LV says:

PN234

If the Commission has grounds to refuse to certify an agreement the Commission may accept an undertaking from one or more of the persons who made the agreement in relation to the operation of the agreement and, if satisfied that the undertaking meets the Commission's concerns, certify the agreement.

PN235

Section 170LV(1)(a), if the company gave an undertaking that drivers working under the zonal arrangement - in other words, the Tanunda-based employees, for want of a better term - will not be disadvantaged in regard to either the Transport Workers' 1998 Award or the Transport Workers' Long Distance Drivers Award, what would the union say to that? Would that change the union's view, and my understanding of that would be that the undertaking would be that throughout the duration of the agreement the company undertakes that the employees will not be paid less than what they would be entitled to under either of those awards for the duration of that agreement?

PN236

You would have the right at any point, on behalf of those employees, to check their wage records, driving details, hours and so on and to check that that undertaking was being adhered to. Would that make a difference to the union's submission?

PN237

MR BELL: I'm not in a position to say yes or no.

PN238

THE COMMISSIONER: Well, I mean, that still leaves the issue of the vote. That still leaves that swinging. I understand that but I'm just saying given that there are some benefits in this agreement obviously and if that undertaking was given I am just simply saying would that change the union's opposition to this agreement being certified? That's my question.

PN239

MR BELL: It may well do, Commissioner, but I'm not in a position today, until we see those undertakings given. I mean, the Commission has the right to certify or not certify it. We're just raising objections in relation to this that we see for some members of our union.

PN240

THE COMMISSIONER: Well, there seem to me to be two issues of debate here. The issue is first of all the whole business about the voting and the approval and that, right. That's one issue. The other issue is the question of the no disadvantage test in regard to those particular employees covered by - well, the Tanunda-based employees.

PN241

MR BELL: Yes.

PN242

THE COMMISSIONER: Now, in regard to that second issue, it would seem to me, without going to great detail as to your calculations and what Mr Shearer says about how the other awards operate - and I would have to frankly go away and have a look at all that - but without going into all that, the undertaking has been given: look, whatever happens here these employees at Tanunda are not going to be paid less than the award. We will give that undertaking. That would seem to me to be a pretty solid undertaking.

PN243

MR BELL: We ask from the company then what do they do if it does occur? What does the company do?

PN244

THE COMMISSIONER: Well, they would have to be paid the minimum - well, I think that perhaps comes back to the issue, Mr Shearer, we would perhaps need to see that undertaking in writing and the Commission would need to see - I know what's in my mind as to what I think you're saying in regard to that undertaking but I would need to see that in writing and the union would need to see that in writing before it could say whether or not it might be satisfied by that.

PN245

MR SHEARER: Could we do that here today and mail it down - - -

PN246

THE COMMISSIONER: Happy to work something through. We can adjourn and you can have some talks about that. That of course only deals with the second issue. There is still that first issue about the vote, but if that second issue could be resolved where would that leave - if it could be resolved where would that leave the union's submissions today in regard to the agreement? Would you still be wanting the Commission to go ahead and make a decision about the ballot?

PN247

MR BELL: Well, I think that the Commission has no option but to look at the requirements of the Act and make sure that they are carried out.

PN248

THE COMMISSIONER: True but I'm just saying - I agree with that but - - -

PN249

MR BELL: What Mr Shearer has put to you is - - -

PN250

THE COMMISSIONER: But would you still be objecting to the certification of the agreement? Perhaps that's a better way of putting it.

PN251

MR BELL: It's a very difficult question to answer on the basis that the vote occurred in May/June last year. There was some dialogue that took place with the involvement of us as requested by our members. There was some resolution which was not necessarily a resolution that we were in favour of and that is the point that we're raising in relation to the disadvantage to those Tanunda employees. Now, we're not suggesting that - I think what I was suggesting before was that even if the vote occurred today there would probably be no different result.

PN252

If the vote occurred last week in accordance with the Act there would be no different result. I merely raise it as a point of the two issues that have occurred in the process. I don't expect that the result would be any different in relation to the vote and that would bring us down to one issue.

PN253

THE COMMISSIONER: Is there anything else that you wish to say in reply to Mr Shearer?

PN254

MR BELL: No, nothing, Commissioner.

PN255

THE COMMISSIONER: Might it then be appropriate, given the time and so on, might it be appropriate for us to spend an extra half hour, three quarters of an hour or so, Mr Shearer, for you to actually put something in writing in terms of the sort of undertaking you would be prepared to give and to discuss that with the union to at least see whether that second issue can be resolved? Because in my view if the undertaking is as I understand Mr Shearer to have put this morning it would - from my point of view it would resolve the issue of no disadvantage.

PN256

MR BELL: I should indicate for the record that we would probably still oppose it.

PN257

THE COMMISSIONER: On the basis that - - -

PN258

MR BELL: It doesn't meet the disadvantage test.

PN259

THE COMMISSIONER: On what grounds?

PN260

MR BELL: Well, on the information that I have just put forward to you today, but I mean that - - -

PN261

THE COMMISSIONER: But my understanding is Mr Shearer would be saying: look, in effect we would be happy to keep the records and say under the agreement they get paid X and if X happens at any point in time to be less than what they would have been paid under the awards then we will pay what they would have been paid under the awards, either of the awards.

PN262

MR BELL: Let's go through the process and see where it leads us.

PN263

THE COMMISSIONER: Can I just suggest we adjourn for the time being and Mr Shearer, you work hard on getting some undertaking there and have that discussion for the next 40 minutes or so and see if we can resolve it? If we can't we can't, but let's put an undertaking down in writing, see if you can reach some agreement with the union on that point. I'm not pushing people to agree here, Mr Bell, but I'm just saying we've got two issues before the Commission at the moment.

PN264

The second issue, which is this issue of the no disadvantage, is frankly an issue which if you can't resolve between you on the basis of an undertaking, I've got to say there's a lot of hard work ahead of me to try and work out if there is a disadvantage or not. So it would be in the Commission's interests and I think all the parties' interests to see if that issue can be resolved with an undertaking. That still leaves the other one but we will come back to that. Perhaps if we adjourn for half an hour or so and you can keep my associate informed and we will take it from there.

SHORT ADJOURNMENT [11.30am]

RESUMED [12.12pm]

PN265

THE COMMISSIONER: Now, Mr Shearer, how did it go during the break?

PN266

MR SHEARER: Thank you, your Honour, we have come up with a form of words which we have shown Mr Bell and he indicates his agreement to it. The words are that:

PN267

Booth Transport Proprietary Limited gives the following assurance regarding the operation of the agreement: that no local driver based at the Tanunda depot will be disadvantaged under the agreement when compared to the wages and conditions that would otherwise have been entitled to under the Transport Workers Award 1998 or the Transport Workers (Long Distance Drivers) Award 2000, the awards. To facilitate efficient management of this undertaking any driver who believes that they may have been disadvantaged as compared to the awards over a 12-month period, including their holiday entitlements and the holiday bonus provided for under the agreement, may seek to have their wages reviewed and compared to those payable under the award. Where such a review identifies any under-payment as compared to the awards, the company will pay the drivers the difference.

PN268

Now, of course, our intention with that is that there are several points worth making. The way the agreement is structured the annual bonus is an integral part of the agreement and if one looked at wages and compared them to the award and ignored that annual bonus, would get a fair comparison. In most agreements where there is an undertaking like this it is over a period of time where it is workable both for the employee and the company. That is the first point. Secondly, in relation to the employees seeking to have their wages reviewed, that certainly does not preclude in any sense that the union on behalf of an employee would be able to be involved in that process. We simply just wanted to keep it fairly simple so there would be any number of mechanisms where an employee can say: look, I'm not sure I've got the right wages.

PN269

THE COMMISSIONER: Yes. Mr Bell, any comments to make on that?

PN270

MR BELL: Mr Shearer indicates that I agreed to it. I agreed to the wording. I'm not sure that I can add anything further to today's discussion.

PN271

THE COMMISSIONER: Well, we will mark that then as - if I can I've got a text of the thing in front of me - perhaps we will mark that as exhibit E1 and the Commission will take that into account, although I do indicate that I think that is a pretty - in my view that is a pretty strong and firm undertaking as far as undertakings are concerned.

EXHIBIT #E1 DOCUMENT

PN272

THE COMMISSIONER: During the break, Mr Shearer, I have had cause to examine the application in some other regards and it seems to me we do really have an extension of time issue here and I can't really avoid that. It seems that in the applications you have indicated that the - under 5.2 of the statutory declarations - the question is: on what date was the agreement made, you have answered there: 7 March 2003. Now, I understand your position there. You are saying: well, it was made on that date because that is when it was signed. If one looks at the Act and I draw your attention to - it seems to me that the - I was looking at the wrong part of the Act unfortunately.

PN273

There's two possibilities, of course. I could find that the agreement was actually made on the date on which it was signed, or it was made on the date when the vote was finalised. They are the two options. I was actually looking at the wrong provision of the Act but it might give us some indication. If you look at section 170LS. Now, this is not applicable here, I know that, section 170LS, this is under division 3 but that is the thing I had in front of me at the time. This is where agreements are made following industrial disputes and industrial situations and 170LS one says:

PN274

The application to the Commission to certify the agreement must state that it is made under this division. (2) The application must be no later than 21 days after the day on which it is approved.

PN275

So what does approved mean? Well, as mentioned in subsection 170LR(1). LR(1) says:

PN276

The agreement must be approved by a valid majority of the persons at the time whose employment would be subject to the agreement.

PN277

The approval referred to there is not the day on which it is finally signed but the day on which it is actually agreed to or voted on by the majority of the employees concerned, if you follow my argument.

PN278

MR SHEARER: Indeed.

PN279

THE COMMISSIONER: Now, I presume that applies back to division 2.

PN280

MR SHEARER: Yes, we are operating under 170LK.

PN281

THE COMMISSIONER: Yes.

PN282

MR SHEARER: Of course, 170LE which defines the valid majority which can either be by vote or where they indicate otherwise via signing. Certainly we acknowledge the point, as I mentioned earlier, that there is that time delay. I must say - - -

PN283

THE COMMISSIONER: So the statutory declarations are in fact incorrect in that.

PN284

MR SHEARER: On that interpretation they would be.

PN285

THE COMMISSIONER: So it is a question of what interpretation you make of the Act.

PN286

MR SHEARER: Yes.

PN287

THE COMMISSIONER: Look on the assumption - just at this stage assume that - because I will have to reserve my decision on this and I don't intend to be too long about it but I will have to reserve a decision, but on the assumption that you are going to have to ask for an extension of time to have this matter dealt with, the Commission can deal with this, of course, under section 111(1)(r), it can grant an extension of time. The traditional way in which we look at extensions of time for these matters is to have regard to the decision of Vice President Ross on 29 April 1997 in the TNT Logistics matter and in that case Vice President Ross had regard to three factors.

PN288

First of all the fact that the decision by the relevant employees in that case to approve the agreement was unanimous. Now, it is not unanimous here but it is a fairly substantial majority. Secondly, he relied on the fact that there had been no change in the composition of the workforce from the time the agreement was approved through to the time the matter came before him. Now, here there has been a change in the composition of the workforce but as you pointed out that change is your saying no more than 10 per cent which would not have altered the ballot.

PN289

MR SHEARER: Correct. Correct.

PN290

THE COMMISSIONER: Thirdly, he had regard to the reason for the delay in that case. In that case it was occasioned by the loss of the original signed copies of the agreement in transit and it took some time to have additional copies signed. Well, in this case you are saying that the reason for the delay was endeavouring to get the union to be part of the agreement under a section 170LJ application because of the views of certain employees who wanted the union involved.

PN291

MR SHEARER: Indeed.

PN292

THE COMMISSIONER: That took months and months to try to resolve. So I think I understand what your submission would be in regard to an extension of time. Is there anything else you want to put to the Commission as to why it should grant you an extension in these circumstances - because it is, of course a long time. Normally when we deal with these matters it is a matter of days. Here we're talking about months.

PN293

MR SHEARER: Yes, indeed. If I could - I take it you would be looking for a written submission from us?

PN294

THE COMMISSIONER: No, no, not necessarily unless you wanted to, but I mean - - -

PN295

MR SHEARER: No, not particularly. I think what we would like to stress is that the motive and intentions of the company through this whole process, and particularly over that protracted period of discussion, was to try and reach an agreement that would be put in place where there was no concern or dissension within the company. Now, as I mentioned before, that may well turn out to be in the company's disadvantage because they could simply have gone ahead with an 84.4 per cent majority subject to passing a no disadvantage test, etcetera, and in all likelihood would have had virtually no difficulty in having it certified.

PN296

They have made the effort to resolve the matter industrially. I think Mr Bell has found himself between a rock and a hard place from time to time with the conflict between internal politics within the union. This is not an agreement with the union although I repeat from comments I made at the previous hearing, we do have on record a letter from the union seeking to be bound. We do not have anything from the union confirming their desire to withdraw from that. That is something we would be wanting to clarify. The company is quite happy to have the union involved, but that issue of would it or wouldn't it be involved, would it or wouldn't it sign the agreement, also extended the matter substantially.

PN297

As I read out from the email dated as late as February this year, the union was indicating it was ready to go ahead and even to do a stat dec to support the matter. Now, that then changed and it took quite some period of time. So I think from the point of view of fairness to the employees and the company who have put a lot of effort into this, the substance of the agreement is not altered. The intention of the agreement is not altered. Yes, the process is at fault on this question of time but it is a fault that I think comes from a desire to get a good industrial result when the company could have just charged ahead. So we would ask you to take that into consideration.

PN298

We acknowledge it is a lengthy period of time. We think that in fact the alternative which may well be in your mind of going to a vote, certainly that can be done but we think that that is probably going to stir up a substantial amount of ill feeling within the company within the employees, that it could result in, particularly the Tanunda employees, feeling somewhat pressured. That is happening at the moment, it is just a natural thing.

PN299

THE COMMISSIONER: I note the operative date of the agreement is expressed to be from the date of signing which is actually 7 March.

PN300

MR SHEARER: March, correct.

PN301

THE COMMISSIONER: If you did put this back to another vote you could still keep that as a - preserve that as the operative date.

PN302

MR SHEARER: You certainly could, yes.

PN303

THE COMMISSIONER: So there would be no issue there.

PN304

MR SHEARER: Indeed. I guess, as Mr Bell mentioned, he would anticipate that there would be no change in the outcome. In fact the majority may well be more substantial. The agreement itself is a reasonable agreement. The assurance deals with the concerns about the Tanunda depot. All we would be doing is delaying the process and I think at some genuine risk, if you take into account the human behaviour issues, there are already drivers around the company - we are talking about a large company, 228 drivers - and there's already some significant ill feeling and we wouldn't want to add to that. We don't think that apart from a very, very strict formality, we don't think anything would be added to the process whatsoever.

PN305

We would certainly concede that if there was a lot of manoeuvring that meant that in any way the agreement had been changed or people had been disadvantaged in the process we would certainly understand the desire to say: well, that time frame is not acceptable. I think in this particular case, which is not something you would see very often because I don't know of another company that would bother trying so hard for so long. Most other companies would just give up or charge ahead. So we would urge you to take that into account.

PN306

THE COMMISSIONER: So there's 228 drivers in how many locations, in how may States?

PN307

MR SHEARER: Five.

PN308

THE COMMISSIONER: Five locations.

PN309

MR SHEARER: I can check from the transcript where I actually read out the figures from the various depots just to make sure we get it exactly right for the purposes. We've got the Adelaide depot, we have Brisbane, Deniliquin New South Wales, Melbourne, Sydney and Tanunda. And .....

PN310

MR ..........: And .....

PN311

MR SHEARER: So seven.

PN312

THE COMMISSIONER: Seven locations and in various States.

PN313

MR SHEARER: Yes.

PN314

THE COMMISSIONER: If you did go back to the employees then you would go back with that undertaking. I mean, you may decide or you may not - well, you would have to - well, you wouldn't have to but I mean presumably you would go back with that undertaking as well.

PN315

MR SHEARER: Yes, indeed. I think if the company went back it would be - it would need, so as to manage the industrial unrest, it would need to explain why there would be 220-odd concerned drivers out there and I think that that would be a negative step for want of a, if you like, technicality.

PN316

THE COMMISSIONER: I suppose the other thing to note in this is that you originally started to discuss the possibility of an agreement back in the end of 2001, as I understand it, so it is interesting it took about 6 to 8 - well, it took about 6 months, I suppose, in order to get an agreement to the vote and then it took another, well, 6 to 8 months to explain the thing and get the union on side. So there's some sort of - - -

PN317

MR SHEARER: In relation to - - -

PN318

THE COMMISSIONER: - - - symmetry there, isn't there?

PN319

MR SHEARER: Yes, and in relation to one very small pocket and a small number of drivers and it is a pity that that didn't work better at the time. I think the fact that there's no one here today with the union probably reflects the fact that they don't want to go down that path either. They are aware. I think this undertaking will satisfy them fully. I can certainly understand that you have got the issue of the Act to deal with but I think there is no profit for the company, no advantage derived to the company in going ahead with this agreement without having another vote whatsoever and the outcome wouldn't be any different. I think the only thing that can be said about it is that it would generate some animosity and that would have to be managed and it would be better to avoid that. Thank you.

PN320

THE COMMISSIONER: Mr Bell, anything finally? I mean, perhaps we could just confer. I mean, I think you have made it clear in your submissions today that the union is opposing certification of this agreement.

PN321

MR BELL: Yes, that is correct.

PN322

THE COMMISSIONER: So, in effect, your submission today is countering the previous email to Mr Shearer. I mean, you are opposing certification of the agreement, and on those two grounds, on the ground of disadvantage to the employees at Tanunda, and on the ground that an extension of time should not be granted.

PN323

MR BELL: The extension of time, and you are well within your rights to exercise your discretion.

PN324

THE COMMISSIONER: Mr Bell, do you have any comment to make about why you are unable to bring any evidence from the employers today? Is it that they are not prepared to give evidence or - - -

PN325

MR BELL: That is the prime reason that they are not prepared to give evidence. There has also been some indication that many of them are not of the opinion of the union, and we are acting on the interests of members of the union. We are not acting on the interests of individuals, so the issue was raised to us. We were involved in the process. We, as Mr Shearer said, were indicating to the company that we were going to be a party to the agreement. Issues were raised to us, and which we have since been raised and our opposition has to stand at this stage .

PN326

We are not in a position to back down from looking after the interests of the members of the Transport Workers Union. We raised those two points today, so what I've already put on transcript here today can be read and you can make a decision on it.

PN327

MR SHEARER: There is one question, if I may, that I should have addressed and Mr Bell has just reminded me of it. If there were to be another vote, and let us just assume for the sake of argument the vote is the same or thereabouts, so in other words let us assume there is still a number but a minority of drivers overall but also a minority at Tanunda who say: no, we are not happy, notwithstanding the undertaking because they may not understand the undertaking. These people don't always understand everything. We are rather curious to know as to whether or not the union would sign the agreement if the majority of its members say they are happy with it.

PN328

We are not sure where we are at in terms of the union's position on this agreement. I would assume that they have, in effect, withdrawn their request to be bound and their opposition means they wouldn't wish to be party to it at all but it would help if we had some clarification on that.

PN329

MR BELL: Well, understand that we wouldn't be a party to this agreement whether it is certified or not. We are here to make our position clear. If it is certified today or it is certified next week, we wouldn't be a party to it. That is the relationship with the Act.

PN330

THE COMMISSIONER: Okay. Well, thank you, gentlemen. Look, I appreciate the fact this has been around for many months and I don't want to delay proceedings unnecessarily, but I think given all the circumstances, I should reserve a decision on the matter. I would intend to deal with it as expeditiously as I possibly can, and I won't guarantee when I will be able to issue a decision on it but I won't be sitting on it, I can assure you of that. I think until then, we will adjourn the matter.

ADJOURNED ACCORDINGLY [12.30pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #U1 EMAIL TO MR BELL FROM MR SHEARER DATED 11 FEBRUARY PN116
EXHIBIT #U2 CALCULATIONS RE DIFFERENCES FOR SECTORS PN121
EXHIBIT #U3 COPY OF UNSIGNED AND UNDATED AGREEMENT PN158
EXHIBIT #E1 DOCUMENT PN272