AG2003/5807, Transcript of Proceedings [2003] AIRCTrans 3192 (28 July 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS


O/N 10469

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

AG2003/5807

APPLICATION FOR CERTIFICATION OF
AGREEMENT

Application under section 170LJ of the Act
by Transport Workers' Union of Australia and
Another for certification of the HBL Chemtrans
Victoria Certified Agreement 2003

MELBOURNE

10.15 AM, MONDAY, 14 JULY 2003

PN1

MS P. DOODY: I appear for the Transport Workers' Union of Australia.

PN2

THE COMMISSIONER: Thank you, Ms Doody. Now I might save you some time with this. I understand that you have already been advised that even though Mr Allan's statutory declaration hasn't been signed, I will proceed on the assumption that the contents of the declaration are true, subject only to Mr Allan signing it and filing it with the Commission in due course.

PN3

MS DOODY: Sure. Thank you, Commissioner, and I do apologise.

PN4

THE COMMISSIONER: That is all right. Yes, well, if you can arrange to do that as soon as practicable. Will he be able to do that tomorrow?

PN5

MS DOODY: I am not - I know that he is in Canberra, so I know that he is in Canberra today, Commissioner, and I am not too sure of his movements for tomorrow.

PN6

THE COMMISSIONER: All right. Well, just do that as soon as practicable. Now I have also had the opportunity to read the agreement, which is relatively brief, and I don't think that there are any great issues arising from the agreement, but just for the sake of clarity I will ask you some questions about it.

PN7

MS DOODY: Certainly.

PN8

THE COMMISSIONER: Now I am proceeding on the assumption that in accordance with the statutory declaration the agreement has met the requirements for its making.

PN9

MS DOODY: Yes, I understand - - -

PN10

THE COMMISSIONER: Is that right?

PN11

MS DOODY: That is right, Commissioner, yes.

PN12

THE COMMISSIONER: It has been made in accordance with the Act in a sense that the 14 days was provided to the employees for consideration of the terms of the agreement.

PN13

MS DOODY: Yes, they were.

PN14

THE COMMISSIONER: It was explained to them. Did the union provide the explanation to the employees?

PN15

MS DOODY: I am sorry, Commissioner?

PN16

THE COMMISSIONER: Did the union provide the explanation about the terms of the agreement to the employees?

PN17

MS DOODY: Yes, I believe the union official was present at those meetings, yes.

PN18

THE COMMISSIONER: All right. And explained the terms of the agreement to the members.

PN19

MS DOODY: Yes.

PN20

THE COMMISSIONER: Very good. And I also understand that it has been approved by a valid majority of employees.

PN21

MS DOODY: That is correct, Commissioner.

PN22

THE COMMISSIONER: Right. And do we know how that happened? Was there a meeting?

PN23

MS DOODY: There was a meeting held and a vote was taken by all employees.

PN24

THE COMMISSIONER: Right. And there was a majority of the employees in favour, was there?

PN25

MS DOODY: That is correct.

PN26

THE COMMISSIONER: Now I take it you weren't at the meeting.

PN27

MS DOODY: No, Commissioner, I wasn't present.

PN28

THE COMMISSIONER: So you are unable to tell me, except that you have been told that a majority of employees voted in favour. Is that right?

PN29

MS DOODY: Yes, that is the information I have been provided by the union official who was present at that meeting.

PN30

THE COMMISSIONER: All right. It might be useful for the future if some steps were taken to provide a little bit more information about that. I know that the form doesn't provide for it but it is good to be able to be told exactly what happened.

PN31

MS DOODY: Sure.

PN32

THE COMMISSIONER: And as for the terms of the agreement themselves, are the rates of pay in excess of the rates of pay prescribed by the award?

PN33

MS DOODY: Yes, they are, Commissioner.

PN34

THE COMMISSIONER: And can you tell me by what amounts?

PN35

MS DOODY: I am sorry?

PN36

THE COMMISSIONER: Can you tell me by what amounts?

PN37

MS DOODY: The agreement provides for a bogie drive rigid, which is equal to a grade 4 in the award. The agreement provides a rate effective from 1 July 2003 at $573.07 and the award provides for $499.70. A semi trailer or a semi tanker which is equal to a grade 6 of the award, the agreement provides $595.34 and the award provides for $515. The dow on site, which is I believe to be a side loader, which is equal to grade 7 of the award, is in the agreement $604.86 per week, and the award provides for $524.70 per week. A V-double is equal to that of grade 8 of the award and the agreement provides for $634.23 per week, and the award provides for $543.70 per week. So those rates are in excess of the award.

PN38

THE COMMISSIONER: Are they the award rates including the recent safety net adjustment?

PN39

MS DOODY: Yes, that is correct.

PN40

THE COMMISSIONER: Well, I will just ask a couple of questions for clarification then, but is the casual loading a little - is that the same as the award, or is that different, 10.3 of the agreement? I am really just asking you give me some indication as to what the effects of clause 10.3 are on the overtime work performed by casuals. How many of the employees are casuals?

PN41

MS DOODY: I couldn't answer that, Commissioner. Perhaps Mr Wackett could clarify that for you.

PN42

THE COMMISSIONER: It should be in the declaration actually, just a moment, I will have a look.

PN43

MS DOODY: According to the statutory declarations, Commissioner, there are no casual employees.

PN44

THE COMMISSIONER: All right.

PN45

MS DOODY: The agreement, Commissioner, provides for casual employees to be paid on an hourly basis, 138 to the appropriate weekly wage rate described in schedule 1 of this agreement plus 10 percent of ordinary time earnings for the work performed, and the award actually provides for on an hourly basis 138 of the appropriate weekly wage prescribed by the award plus 20 percent of ordinary time earnings for work performed.

PN46

THE COMMISSIONER: Well - - -

PN47

MS DOODY: I would have to further calculate that to find out.

PN48

THE COMMISSIONER: - - - just wait a moment, because you may be addressing a different subject. Clause 10.2 and clause 10.3 both deal with casual employees. One prescribes what the ordinary time casual loading will be, clause 10.2. And clause 10.3 deals with the subject of when overtime is worked by casual employees. I think you may have just told me what the award provides for clause 10.2, isn't that right? Or are you talking about - - -

PN49

MS DOODY: That is for 10.3, sorry, Commissioner.

PN50

THE COMMISSIONER: You are talking about overtime?

PN51

MS DOODY: Sorry, no, that was just - sorry, I read the clause wrong, Commissioner.

PN52

THE COMMISSIONER: It is the overtime casual loading that I am asking about. Well, maybe we can come back to that in due course.

PN53

MS DOODY: Yes, thank you, Commissioner.

PN54

THE COMMISSIONER: You have to file Mr Allan's declaration in any event. You can answer the question in writing.

PN55

MS DOODY: Sure.

PN56

THE COMMISSIONER: At the same time you do so, either electronically or by fax, as you wish.

PN57

MS DOODY: Thank you.

PN58

THE COMMISSIONER: That is to say, if you wish, you can email my office with the answer to that question. I doubt that it is going to be of any consequence for the purposes of the application having regard to the information you gave me about the differential in the wage rates. It seems to me there is quite sufficient differential there to absorb any potential disadvantage, but it is a question - I think there may be a difference between the award in that respect.

PN59

MS DOODY: Sure.

PN60

THE COMMISSIONER: More substantially however, I would like to know what the parties' intentions are under clause 26.1.3 of the award. Clause 26 is the disputes procedures clause, and I am particularly interested not only to know the view of the union in relation to what that clause or sub-clause rather means, but also what the company's view of what it means is. And most particularly, what I need to know is what was explained to the employees about this clause, the way in which it would operate, because that is what has been approved.

PN61

MS DOODY: I would have to seek further clarification, Commissioner, and get back to you.

PN62

THE COMMISSIONER: All right.

PN63

MS DOODY: As I wasn't present at the meeting.

PN64

THE COMMISSIONER: Well, let me just ask the company this question - should I ask you, Mr Brown, or Mr Wackett?

PN65

MR WACKETT: I am from the company and Bruce is there - - -

PN66

THE COMMISSIONER: I beg your pardon. Well, I am sorry, he said he was from - representing HBL Chemtrans, that is what we have got on the appearance record. However, Mr Wackett, could you help me please? And perhaps you might just like to look at clause 26 of the agreement. Is it the intention of the parties, and was it put to the workforce that if the dispute couldn't be resolved by discussion either at the workplace level with the supervisor, the job representative, or further between the union and the company, that the Commission would conciliate and if necessary arbitrate in relation to the dispute, or was that a more limited intention?

PN67

MR WACKETT: No, it was just simple as if we have some form of a dispute we would talk it over between the driver concerned and his supervisor. And if they failed to come to an agreement then, they would involve their union representative, and in this case it is Mr Brown here. If it still couldn't be resolved from there, we would involve the union office, and if necessary it would come up to here.

PN68

THE COMMISSIONER: Yes, all right. At the point when it came up to here, so to speak, what did you envisage would happen?

PN69

MR WACKETT: Well, I have been with the company 15 years and thank goodness we have never been up here so I don't think anybody envisaged that it would get to that stage, though not the way our company operates.

PN70

THE COMMISSIONER: Sure. Well, let us hope that is the case. Of course I am asking this question from the perspective of the Commission because it simply says that it would be referred to the Commission.

PN71

MR WACKETT: Right.

PN72

THE COMMISSIONER: Now once it is referred to the Commission, what would the parties anticipate would happen?

PN73

MR WACKETT: We would be looking for a decision from the Commission.

PN74

THE COMMISSIONER: All right. And would that decision be binding upon both parties?

PN75

MR WACKETT: It would have to be, yes.

PN76

THE COMMISSIONER: Yes, very well. Fine, thank you, very much, Mr Wackett. Is that the way it was put to the workforce?

PN77

MR WACKETT: Yes.

PN78

THE COMMISSIONER: Good. You agree with that, Ms Doody?

PN79

MS DOODY: Yes, we do, Commissioner.

PN80

THE COMMISSIONER: All right. Well, are both parties prepared to offer that as an undertaking as the appropriate interpretation of the agreement in the event of any matter being referred to the Commission?

PN81

MS DOODY: Yes, Commissioner.

PN82

THE COMMISSIONER: Yes, very good. Now I ask those questions, they may seem a bit mysterious, but there are technical reasons why that matter needs to be clarified in the manner that it has. Thank you, I indicate that I will, subject to completion of the directions I have given during the course of the discussion for the signing of the relevant statutory declaration and for the explanation of clause 10.3 viz-a-viz the award. Provided I am satisfied the agreement meets the no disadvantage test after answering that question, which I am confident it will, I intend to certify the agreement.

PN83

MS DOODY: Sorry, Commissioner, there was one more matter that needed to be addressed, if I may. I believe the agreement is nine days out of time and we would exercise - we would ask the Commission to exercise its discretion under section 111(1)(r) to have those time limits extended please, Commissioner.

PN84

THE COMMISSIONER: All right. Mr Wackett, are the same people employed by the company as when the agreement was approved, or have there been any changes?

PN85

MR WACKETT: There has been one change in so far as one of the members that was at that - the final meeting.

PN86

THE COMMISSIONER: Has left?

PN87

MR WACKETT: Has left.

PN88

THE COMMISSIONER: And has that person been replaced?

PN89

MR WACKETT: Yes, she has.

PN90

THE COMMISSIONER: I think, Ms Doody, this illustrates the point that I made a little earlier, it is important to know what the situation was at the time when a valid majority approved the agreement.

PN91

MS DOODY: Yes, I understand that, Commissioner.

PN92

THE COMMISSIONER: You can appreciate in these circumstances where the agreement is filed late, if it had been carried by a majority of one or two, depending upon the numbers, there may be some issue as to the extension of the time. Although perhaps we might be able to get some help from Mr Brown. Mr Brown, were you at the meeting?

PN93

MR BROWN: Yes, Commissioner.

PN94

THE COMMISSIONER: Was there a vote taken?

PN95

MR BROWN: There was a vote taken.

PN96

THE COMMISSIONER: Do you remember what the vote was?

PN97

MR BROWN: 100 percent in favour.

PN98

THE COMMISSIONER: 100 percent. Very well, in that case I will extend the time for the lodgment of the agreement.

PN99

MS DOODY: Great, thanks, Commissioner.

PN100

THE COMMISSIONER: And as I say, subject only to the completion of the matters that I have given directions about, I intend to certify the agreement. I will issue a decision and a certificate in due course directly to the parties, thank you.

PN101

MS DOODY: Thank you.

PN102

MR BROWN: Thank you, Commissioner.

ADJOURNED INDEFINITELY [10.31am]