C3890/397, Transcript of Proceedings [2003] AIRCTrans 2347 (13 June 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON

C 38903 of 1997
C 38904 of 1997

TRANSPORT WORKERS AWARD 1998

Application under section 113 of the Act
by the Transport Workers Union of Australia
to vary the above award re inserting a new clause -
Transportation of Dangerous Goods
Allowance

TRANSPORT WORKERS (LONG DISTANCE DRIVERS) AWARD 1993

Application under section 113 of the Act
By the Transport Workers Union of Australia
to vary Transport Workers (Long Distance
Drivers) Award 2000 re inserting a new clause -
Transportation of Dangerous Goods Allowance

SYDNEY

2.06 PM, WEDNESDAY, 28 MAY 2003

PN66

THE SENIOR DEPUTY PRESIDENT: I will take appearances first here in Sydney.

PN67

MR Y. SHARIFF: If it pleases your Honour, I am from the New South Wales Road Transport Association. I am seeking leave to appear on behalf of that association.

PN68

MR D. ANDERSON: If It please your Honour, I am from NatRoad, appearing on behalf of my members.

PN69

THE SENIOR DEPUTY PRESIDENT: I will now take appearances in Adelaide.

PN70

MR S. SHEARER: If it please your Honour, I appear on behalf of South Australian Road Transport Association and its members.

PN71

THE SENIOR DEPUTY PRESIDENT: I will now take appearances in Melbourne.

PN72

MS S. LEARMONTH: Your Honour, I appear on behalf of the Transport Workers Union

PN73

MR P. RYAN: Your Honour, I seek leave to appear on behalf of the Australian Road Transport Industrial Organisation.

PN74

MS S. DAVIS: Your Honour, I am from the Australian Industry Group.

PN75

MR B. IRONMONGER: Your Honour, I appear on behalf of .....

PN76

THE SENIOR DEPUTY PRESIDENT: I might start with - unless the parties have reached some accommodation about any particular issues you wish to tackle today. This was called on by me. I don't think there was any specific request by any party that I do so, but it just seemed to me there might be some matters that could be usefully addressed prior to the commencement of the hearing of this matter which is currently listed in Melbourne on Monday, 16 June.

PN77

Also, the parties should all be aware by now that the president has considered whether the matters should be referred to a Full Bench and has decided they should not; they should proceed before me. I trust that you have all received a copy of the document reflecting that, signed by the President.

PN78

Unless we need to spend a lot of time on any questions about leave - in particular about leave being granted to New South Wales Road Transport Authority - I thought we might start with you, Ms Learmonth. You can tell me what, if anything, has happened since we were last together. What, if any, outstanding issues need to be addressed by reference to the directions and anything else you wish to say about us commencing this matter at 10.00am in Melbourne, on the 16th.

PN79

MS LEARMONTH: Certainly, your Honour. The directions issued by yourself, your Honour, have in essence been a key issue. However, the TWU was required to file and serve their witness statements by Monday, 26 May which was Monday just gone. There has been a delay with us being able to provide those witness statements. That delay has primarily been because the employer's submissions were delayed and in fact we did not receive the last submission until Wednesday or Thursday of last week. We were intending to writing to yourself, your Honour, on Monday. However, it did seem superfluous given the listing for today.

PN80

In light of the fact that we have been unable to comply with the directions in relation to the witness statements we could have our witness statements provided to the employers and yourself, your Honour, by 2 June which is next Monday. It would therefore, presumably, push the employer's requirements to file their witness statements out to approximately 9 June. However, given the history to date particularly in relation to the outline of submissions we actually don't have any faith that the employers would be able to meet such a deadline or direction or that even that direction would be complied with in its entirety.

PN81

Even if it was complied with it would still only give the TWU about seven days in which to prepare our case. That would include needing to review our witness material and prepare our response to the witness statements and to further prepare our witnesses. And to be quite honest with you, your Honour, we are not prepared to run our case if we are not certain that we have all the witness evidence having been filed by 9 June.

PN82

I guess from our perspective we see that there would be a number of options. One is that there be absolute compliance with the directions, if they are amended today. And that any witness evidence and other material attempted to be served by the employers after 9 June is not allowed to be served and filed.

PN83

THE SENIOR DEPUTY PRESIDENT: Ms Learmonth, just pause there for a moment. Sometimes I can hear you clearly and other times not so. Is the microphone close to you?

PN84

MS LEARMONTH: It is now, your Honour.

PN85

THE SENIOR DEPUTY PRESIDENT: I have heard you so far but I know some time it is fairly faint and we have a reporter here in Sydney. So just pick up where you were when I interrupted you.

PN86

MS LEARMONTH: I was simply going to give a second option, your Honour, and that is whether there be an adjournment to this matter and we would therefore seek that further directions would be set down. If the matter was to be adjourned we would be seeking another three to five days for the matter to be heard at some other date.

PN87

THE SENIOR DEPUTY PRESIDENT: Do you have a preference or has your preference been expressed in the manner in which you have listed your two options?

PN88

MS LEARMONTH: We don't have a preference at this stage, your Honour. I am happy to hear what you have to say on the matter.

PN89

THE SENIOR DEPUTY PRESIDENT: Well I don't. Let us hear what the employers have to say and see if something they say makes me lean one way or the other. We might stay in Melbourne. We will start with you, Mr Ryan.

PN90

MR RYAN: Thank you, your Honour. One of the issues that I guess we wanted to address today was the timing for the case. Perhaps when the directions were initially issued we should have picked up on the point but a week from the collection of the TWUs witness statements to the filing of our own is totally inadequate. We think that a far more reasonable period would be four weeks, because the nub of the case could well depend on the witness evidence that is led and we need the opportunity to review that in a thorough fashion as well as preparing our own witness statements. I would urge the commission to adjourn this matter to a time to be fixed. And issue appropriate directions that enables the employers to comply, in a reasonable fashion, with those directions.

PN91

I would also foreshadow, your Honour, that we believe that it may be appropriate to have some inspections involved in this particular case. I think that without wishing to go into too much detail that some of the issues that will rise in this need to be experienced firsthand to appreciate some of the finer niceties involved. Now, that might mean that some inspections have to occur in the early morning or late after, your Honour. As you know some parts of the transport industry are very much predicated around early morning, late afternoon, early evening operations. So we would suggest that inspections may be warranted in this case.

PN92

The third point I would make is that our preference would be for this case to be adjourned until a decision is handed down on the living away from home allowance in the long distance award. Because that has the potential to have serious costs implications for employers, and it could impact on the way this case is argued. If your Honour pleases.

PN93

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Ryan. Ms Davis?

PN94

MS DAVIS: Your Honour, we are in a position where I guess we are in support of the submissions put to you by Mr Ryan. We are of the view that probably we would require additional time for purposes of witness statements. We are also of the view that there would be some value in site inspections. My instructions are that we do have one company whereby inspections could be carried out in either Melbourne or Sydney - if we were to go down that route.

PN95

Finally, we would also support Mr Ryan's submissions in regard to - or putting this matter to the side - pending the outcome of the living away from home allowance position.

PN96

THE SENIOR DEPUTY PRESIDENT: Mr Ironmonger?

PN97

MR IRONMONGER: Yes, your Honour. I don't want to duplicate - as you are probably aware already - but what we want to put on the record is that one of us did send out a fax to you and the other parties supporting the employers submissions and, inadvertently, we only attached the New South Wales Road Transport Association. We generally support all of the submissions of the employers. I don't want you to think we are only supporting New South Wales. I would support the submissions made by Mr Ryan. If the commission pleases.

PN98

THE SENIOR DEPUTY PRESIDENT: Mr Shearer?

PN99

MR SHEARER: Thank you, your Honour. The South Australian Road Transport Association will certainly be presenting some witness evidence. I notice that in the original directions you have allowed for 21 days from the time of respondent's outline of submissions to the applicant's witness material. That three week timeframe we would consider to be pretty much a minimum that is required - as Mr Ryan said - to prepare witness statements. It is a very important issue. It will affect industry substantially and we think it is important that we all be given the opportunity to do it properly. I understand and accept that deadlines have to be met. If we were to have at least a three week period - we would prefer four - but at least a three week period from receipt of the TWU witness material we would certainly be able to deliver on responding with our own witness material.

PN100

THE SENIOR DEPUTY PRESIDENT: Yes, all right. These directions were agreed, weren't they.

PN101

MS LEARMONTH: They were, your Honour, yes.

PN102

THE SENIOR DEPUTY PRESIDENT: It probably doesn't matter one way or the other whether they agreed or not, but I had understood they were largely agreed. Sobeit. Mr Shariff, here in Sydney?

PN103

MR SHARIFF: Thank you, your Honour. I would have to generally support Ms Learmonth's second proposition that the present date that has been listed for the hearing be adjourned. And following that I would support everything that Mr Ryan has already put.

PN104

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Anderson?

PN105

MR ANDERSON: Thank you, your Honour. NatRoad supports the submissions of Mr Ryan. This application potentially impacts on a wide span of our membership and we will be presenting witness evidence. We particularly support Mr Ryan's case for more time to prepare those witness statements and evidence and to review the union evidence.

PN106

We think there is a strong case for suggesting it be put aside pending the outcome of the living away from home allowance, and the potential impacts and what may follow from there. And we would support the idea that inspections would be appropriate also. Thank you, your Honour.

PN107

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Learmonth, in replying to any of those submissions you may assume that I am not attracted to putting the matter off pending any decision in the living away from home allowance matter, unless that is a position that you consent to. It seems that - I think unanimously - the adjournment of the matter currently listed to commence on 16 June is the position that the employers contend for. And we have this additional issue of inspections but it seems to me that if we deal with hearing dates first we can pretty easily deal with the need for inspections and if there is a need the time they can be undertaken.

PN108

In making any submission in reply, Ms Learmonth, you should assume that the adjournment would not be for a long period. And if it was to be allowed it would be only to allow the additional time in the vicinity of what the employers had sought for the filing of witness statements. I would be doing some counting and taking into account the time that everybody says they will need and probably listing the matter within a week or so of that. Ms Learmonth?

PN109

MS LEARMONTH: Firstly, your Honour, we would not consent to having this matter adjourned until after the living away from home allowance. We would prefer that the matter be heard before that matter is finalised. In relation to site inspections we would say that there probably is some value in site inspections and that the inspections could or should occur before the witness is being provided. Simply on the basis, your Honour, that it may assist in the understanding and comprehending of the witness evidence.

PN110

THE SENIOR DEPUTY PRESIDENT: Just pause there. Do you mean the oral evidence in court, or the witness statements to be filed?

PN111

MS LEARMONTH: No, the oral evidence in court, your Honour.

PN112

THE SENIOR DEPUTY PRESIDENT: Yes, because certainly if I was attracted to inspections it would have been prior to that day but not prior to the filing of written statements.

PN113

MS LEARMONTH: No, no.

PN114

THE SENIOR DEPUTY PRESIDENT: Continue.

PN115

MS LEARMONTH: And I guess then it is, your Honour, just a matter of looking at other dates and when this matter can be heard.

PN116

THE SENIOR DEPUTY PRESIDENT: I think that I am persuaded to abandon the three hearing dates that are currently set to commence 16 June in Melbourne. We will set some new dates and then you can all do two things. Talk about who wants inspections, and where, and what time we can undertake them. And you can all work on some revised directions that, hopefully you can agree upon, and provide to me for sealing and signing. And if you can't agree upon them I can then make whatever decision is need about any contentious areas. So let us just go off transcript for a short time to identify a new hearing date.

OFF THE RECORD

PN117

THE SENIOR DEPUTY PRESIDENT: The hearing in both of these applications currently listed in Melbourne, Monday, 16 June, will be adjourned. It will now commence Tuesday, 12 August, at 10.00am in Melbourne; and I will hold 13 and 14 August also. New listings will be sent out in due course.

PN118

In the interim the parties are going to talk about revised directions and hopefully agree upon them and send a draft to me for my signing. If you can't agree on them well I will make directions I think appropriate giving adequate time for you all to attend to the filing of witness statements. Also in the interim the parties are going to try and agree on inspections and a program for them, and where they can be undertaken - be they Melbourne or Sydney - and liaise with my chambers about my availability to attend those inspections. My current inclination is that they would be of most use after I have seen the witness statements but before I commence the hearing in Melbourne on the first day that I have now adjourned it to.

PN119

The parties have liberty to apply to call this matter on again should they see fit. The commission now adjourns.

ADJOURNED UNTIL TUESDAY, 12 AUGUST 2003 [2.36pm]