C0087/898, Transcript of Proceedings [2003] AIRCTrans 3239 (1 August 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LARKIN

C No 878 of 1998
C2001/2957

RAILWAYS TRAFFIC, PERMANENT WAY AND
SIGNALLING WAGES STAFF AWARD 1960

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

Application under section 113 of the Act
by Australian Rail, Tram and Bus Industry Union
to vary the above award re wages and allowances
safety net wage decisions from 1993 up to and
including the decision in May 2001

SYDNEY

12.16 PM, THURSDAY, 17 JULY 2003

PN1

MR A. THOMAS: I appear on behalf of the Rail, Tram and Bus Union and appearing with me is MS K. VAN BARNEVELD.

PN2

MR P. BAMFORD: I appear for Rail Infrastructure Corporation.

PN3

MR B. LARKIN: I appear for the State Rail Authority of New South Wales.

PN4

MR S. VOSTI: I appear on behalf of the National Express Group.

PN5

MR C. SHAW: I appear on behalf Freight Australia.

PN6

THE COMMISSIONER: Material has been filed in relation to the rates of pay that are to be reviewed in these proceedings. This is correct?

PN7

MR VOSTI: That is correct, Commissioner. Do you wish me to speak on it?

PN8

THE COMMISSIONER: Well, what I have before me is a conclusion of the review of the award under item 51, 4 and 5 and I also have an application from the RTBU in relation to safety net adjustments in parts of the award in relation to the Victorian part of the award, the union is seeking to adjust wages up to the adjustments from the safety net review 1998 decision and in relation to the New South Wales parts of the award, the RTBU are seeking to adjust those wages up to the safety net review adjustment decision 2002.

PN9

I understand that the union section 113 application in relation to the various parts of the award is by consent of the parties but of course I will hear anyone that is not in consent. So the material was filed from Victoria and I also received I believe material from New South Wales. So if the union is addressing the review or the employer is addressing the review, then we can address the safety net adjustments. However you wish to handle it gentlemen and ladies.

PN10

MR VOSTI: Well, Commissioner, perhaps if I start with the Victorian terms of the application?

PN11

THE COMMISSIONER: Yes, that would be fine, thanks Mr Vosti.

PN12

MR VOSTI: In relation to the order before you, Commissioner, C1998 of 878, the parties I represent, which is the National Express Group, ..... Passenger, Bayside Trains, Connicks Trains Melbourne, Alstrom Melbourne Transport Limited, Boyes Road Lines, Works Infrastructure a division of Dowe ETI Limited, seek to implement the minimum rates contained in the Railways Traffic, Permanent Way and Signalling Wages Staff Award 2002.

PN13

The methodology adopted is that which is consistently applied across the public transport industry in that it seeks to utilise the existing work value relativity between the key classification. In this case, as was determined, the conductor or the classification for Victoria and the fitters rates in the Railway Metal Trades Grades Award, then apply the relativity to the Metal Industry C10 Fitters Rate applying at the time the rates were last varied. That is the methodology of the undertaking. In relation to the section - - -

PN14

THE COMMISSIONER: Then once that exercise had been concluded, Mr Vosti, the safety net adjustments by consent were applied to those figures?

PN15

MR VOSTI: That is correct, Commissioner.

PN16

THE COMMISSIONER: Thank you.

PN17

MR VOSTI: Just one view from Victoria is that the safety net adjustments for agreement from employers is to 1998 even though the initial application I think was for 2002.

PN18

THE COMMISSIONER: One. Yes, well, I haven't actually heard Mr Thomas but I presume Mr Thomas is going to seek leave to amend his application and also he will, at that time, address service in relation to the application and the listing. But we will get to that, thank you, Mr Vosti.

PN19

MR VOSTI: Thank you.

PN20

THE COMMISSIONER: Yes, Mr Thomas?

PN21

MR THOMAS: Yes, thank you, Commissioner. As you foreshadowed, I seek leave of the Commission to vary our application, that being C No 2957 of 2001 and that that application be amended to vary the Railways Traffic, Permanent Way and Signalling Wages Staff Award, Part 2, that being the Victorian part by safety net adjustments of this Commission up to and including the year 1998. Further, to vary the same award with respect to Parts 3, 4 and 7 which now is becoming 5, for the relevant safety net adjustment decisions of this Commission for the period up to and including 2002. I make that application for leave.

PN22

THE COMMISSIONER: Well, we might address that at the moment. Do I have any position of any of the parties on that application to amend the RTBU's application to vary the award?

PN23

MR SHAW: Commissioner, we support Mr Thomas's submissions to do that. The agreement of the employers from Victoria is to adjust these rates up until 1998.

PN24

THE COMMISSIONER: Yes. Nothing further. Yes, leave is granted to amend that application.

PN25

MR THOMAS: Thank you, Commissioner. In doing so make a point that the Commission given the nature of the relationship between the awards and the enterprise agreements in some of the Victorian employers would have been precluded from varying it beyond 1998 anyway because of the application of the - for want of a better term - the 12 month principle. Commissioner, what you have before you are two matter which have, in essence, been consolidated into one. The first is to minimum rates adjustment of the award.

PN26

In that regard, Mr Vosti has outlined to you the methodology that has been used by the parties and that methodology was applied to wage rates as they existed in 1991. We then had sought to vary the award to increase those minimum rates amounts up to and including either 1998 or 2002, depending upon the part of the award. Commissioner, the applications as they concern the minimum rates adjustment in our submission meet the requirements of the paid rates principles of this Commission in that they have used the C10 in a Metal Industry and Associated Industries Award as the base. The draft order before you removes any increments based on time only.

PN27

THE COMMISSIONER: Mr Vosti may have addressed this but the key classification in this award was the conductor?

PN28

MR THOMAS: It is the conductor for Part 2 which is relevant to Victoria. In Parts 3 and 5 it is the guard class 1.

PN29

THE COMMISSIONER: As they are different classifications in the different Parts?

PN30

MR THOMAS: Correct.

PN31

THE COMMISSIONER: That is right?

PN32

MR THOMAS: Correct, yes. In Part 4 I think it is the Permanent Way level 11 I think which was the classification used. Now, there are reasons for that. The first, Commissioner, is that the award is differentiated on the basis of States so we use what was the classification appropriate to each State. In New South Wales Part 3 is a Rail Operations part of the Award and Part 5 are the On Train Grades. Now, it wasn't all that long ago that those classifications effectively in Part 5 were in Part 3.

PN33

So historically those classification in Parts 3 and 5 and so on across the board were values that deemed to be considered together. So it was appropriate to do that and also to note that the passenger attendance and the guard of course work on the same train, so to speak. Part 4 is the Permanent Way maintenance grades. So they are somewhat of a different category to the Rail Operations grades and it was seen as appropriate that we use as the measuring stick a classification within that Part rather than the guard to whom the classifications traditionally have had no significant or relevant connection to.

PN34

So that explains the different measuring sticks for the relevant parts and in the methodology has progressed along the course that has been adopted in this award and other railway awards that the Commission has been associated with throughout this long tedious haranguing experience from which we have all emerged as better people.

PN35

Commissioner, then we have applied the relevant safety net adjustments and I have explained to you the differences in the years that were applied to, with respect to Victoria and New South Wales, it is to meet the existing wage fixing principles. Commissioner, we would submit that on the safety net adjustments that they do meet the principles as set down by the Commission, the relevant absorption undertaking that is given and contained within the draft orders. The allowances have been adjusted in accordance with the formula in the Furnishing Trades' case.

PN36

The increases have been consistent with the increases given in each of those decisions and the 12 month proviso for, I guess, real increases in the field has been met. The orders have been the, the orders in draft form before you have been the subject of discussions between the relevant parties and they are put to the Commission as a draft order in an agreed form that reflects the outcome of the processes undertaken and in accordance with our obligations to meet the various tests of the Commission. In that respect we would seek that the Commission grant those applications with the operative date being the first pay period on or after today.

PN37

THE COMMISSIONER: And to remain in order for 6 months, Mr Thomas?

PN38

MR THOMAS: Yes, Commissioner, that would be consistent with the capacity for future variations to the award for safety net adjustments, etcetera.

PN39

THE COMMISSIONER: Yes, thank you, Mr Thomas. I think that concludes the issue in regards to the Victorian material filed. Mr Larkin I believe that you have filed material on behalf of the New South Wales parts to the award?

PN40

MR LARKIN: That is correct, Commissioner, yes, in anticipation of the RTBU application being varied to take in the 2002 safety net adjustment on behalf of the New South Wales parties I have prepared a draft document that incorporated the recent decisions of the Commission in relation to incremental payments and related provisions and included the calculation including the 2002 safety net adjustment.

PN41

THE COMMISSIONER: Your methodology reflects the methodology that was outlined by Mr Vosti earlier?

PN42

MR LARKIN: Yes, indeed it does, Commissioner, yes, and with one minor exception, I would concur with Mr Thomas' submission. In the Part 4 it was the purvey level 12 to be selected as the key grade. Purvey level 12 came out to about 100.73 per cent of the fitters rate, purvey level 11 was just before this rate and it was on that basis we selected 12 for the key grade in that part of the award. What I've also done in preparing the draft, there was several allowances relating to specific grades that I have taken the liberty of removing them from the wage rate clause and creating separate provisions.

PN43

Also too there is another issue outstanding relating to the inducement allowance and Broken Hill allowance, so I've taken the liberty of also having incorporated that in to the draft utilising an agreed methodology for that. I've also provided to the parties a copy, or copies of a spreadsheet that outlines the method of calculation for the various wage rates and also the allowance. With the weekly allowances being rounded after every step, the hourly and daily allowances were not rounded, they were left to the fifth decimal place and they will be tied up at the end to the exercise.

PN44

THE COMMISSIONER: And that is, you said, material that you have provided to the parties, that is the material you have also provided to the Commission, Mr Larkin?

PN45

MR LARKIN: That is correct, Commissioner, yes.

PN46

THE COMMISSIONER: Just a moment please? All right, Mr Larkin, if you all have that draft order that was served and filed by Mr Larkin - Mr Thomas you have that, do you have that?

PN47

MR THOMAS: Yes, i have a copy on me.

PN48

THE COMMISSIONER: All right, but do I take it that is a consent draft order?

PN49

MR THOMAS: Yes.

PN50

THE COMMISSIONER: Yes. Mr Bamford, is that - - -

PN51

MR BAMFORD: Yes, that is correct, Commissioner.

PN52

THE COMMISSIONER: Yes, and of course, at the moment we are talking about New South Wales.

PN53

MR BAMFORD: Yes.

PN54

THE COMMISSIONER: All right, so I will raise this with Mr Larkin and if anybody seeks to comment then please feel free. Just on the second page, classification 15 is deleted. Now, is that an error, or is that correct, is that a guard's assistant with a figure of first year of 494.70?

PN55

MR LARKIN: That is a redundant grade, Commissioner.

PN56

THE COMMISSIONER: Redundant grade?

PN57

MR LARKIN: Yes, or obsolete.

PN58

THE COMMISSIONER: All right, we just wanted to double check that, okay.

PN59

MR LARKIN: So I apologise for that, whilst I went through and removed a number of redundant grades there are a couple of grades that have been left in on the basis that I wasn't quite sure what one or the other New South Wales parties had.

PN60

THE COMMISSIONER: Yes, all right. Now, just on page 3 and it is point 27 and right down, point 27(a) and it is right down the bottom, 23 tones and over, there is a figure there. The figure is 383.90, should that be 543.60?

PN61

MR LARKIN: I would strongly suggest that, Commissioner, yes. If I can just check on the spreadsheet? Yes, indeed, I apologise for that Commissioner, it should be $543.60.

PN62

THE COMMISSIONER: On page 4, 8.2, to do with clause 36(1).

PN63

MR LARKIN: Yes.

PN64

THE COMMISSIONER: Should that be special class allowance, or specific class allowances?

PN65

MR LARKIN: Well, they are allowances specific to certain grade, Commissioner.

PN66

THE COMMISSIONER: Yes, we are just thinking because you have got - I think what we have here is, we are suggesting that we put a title, 36.1 specific classification allowances and then we would have 36.1.1 and 36 - no, I see, just a moment. No, look gentlemen, we won't worry about that. I think that is - because of the other allowances and the way they are structured, I think that is all right. All right, let us move on.

PN67

MR THOMAS: Commissioner, the only thing I would say is that it does say specific shunters allowances which could almost mean anything but whether it wants to be retitled, such as "shunter in charge of shunting engine" to make it more clear or the coach captains, you know - "coach captain required to collect fares" or something which makes the title more reflective of the nature of the allowances.

PN68

THE COMMISSIONER: Well, I think the actual clause itself reflects the nature of the allowance. I mean, unless the parties - I mean, it was simply we were going to raise if for the structure more than anything else but as I can see now, they are 1, 2 and 3 allowances anyway so we had best leave well enough alone in that regard. Just on page 10, 61.7.3, I take it - well yes, we will just include there a date, 17 July 2003, so you are aware of that.

PN69

MR LARKIN: Yes, Commissioner, that was - as we did in the previous variations, the variation was just incorporated in there. It also appears on page 11, 61.8.4.

PN70

THE COMMISSIONER: Yes, I'm glad you have pointed that out to me. Yes, thank you, Mr Larkin. Now, the only last thing really is the last page, page 12. You have got, "delete clause 82.2.4." Now, on my understanding, I don't think the award has an 82.2.4. Would that be correct? I don't actually - do I have the award? Yes, see what - it has an 82.2.3 on my copy anyway. Then it has an 82.3 and an 82.4. Is it meant to be 82.4?

PN71

MR LARKIN: No. I must confess, Commissioner, I haven't got a copy of the award with me.

PN72

THE COMMISSIONER: All right. Well, can I just read it out to you.

PN73

MR THOMAS: I think it is, Commissioner - - -

PN74

THE COMMISSIONER: Yes.

PN75

MR THOMAS: - - - because if you go to the spreadsheet, and it is the very last tabulation. It says 82.4 per hour and then the various adjustments. I suspect it will be 82.4 rather than 82.2.4.

PN76

MR LARKIN: I apologise, Commissioner, yes. That is more enthusiasm than ability.

PN77

THE COMMISSIONER: You are all so excited about doing this with your lovely awards. You are over the moon about it, having them so nice and clean and tidy. You won't know what to do with yourself when you have finished all the Rail awards, although I can imagine some of you will know what you are going to do with yourselves. Yes. Well, they are the only things I wish to raise with you in regards to that draft order that we received. Is there anything else, Mr Larkin, that you wish to put before me?

PN78

MR LARKIN: No, I think that actually covers the situation for parts 3, 4 and 5 of the award which, I think, would effectively bring our part to a conclusion, Commissioner.

PN79

THE COMMISSIONER: Yes, and I think you support Mr Thomas' submission in regards to the safety net review.

PN80

MR LARKIN: Yes, we do.

PN81

THE COMMISSIONER: Okay. All right. Thank you for that, Mr Larkin. Mr Bamford?

PN82

MR BAMFORD: Thank you, Commissioner. We support the application and have nothing further to add. Mr Larkin has covered the issues in relation to the New South Wales organisations. Thank you.

PN83

THE COMMISSIONER: Yes, thank you. Nothing further from anyone at all? I think, Mr Thomas, you have given me submissions in regards to safety net adjustments and principles and what-have-you. Yes. Well, look, thank you all very much for that. I'm prepared to hand down my decision in regards to the files before me this morning and, of course, that decision concerns a review of the Railways Traffic Permanent Way and Signalling Wages Staff Award 2002, pursuant to sub item 51(4) and (5) of the Railway Act.

PN84

It also concerns an application pursuant to section 113, lodged by the RTBU to vary the award to apply safety net adjustments to 1998 in relation to part 2, Victoria, and 2002 in relation to parts 3, 4 and 5, New South Wales. On 15 August 2002, I issued a decision in relation to a review of the award. In that decision, I stated that a number of clauses would not be reviewed at that point as the parties sought time to finalise the issues relevant to those particular provisions. This decision addresses the conclusion of that particular review.

PN85

In relation to part 2, Victoria, having regard to the submissions filed by the parties, and having heard the submissions at the hearing today, I am satisfied that the wage rates have been reviewed by the parties in accordance with the principles established by the Full Bench in the Paid Rates Review decision. The application to increase the rates for the relevant safety net adjustment decisions, 1991 through to 1998, is by consent of the parties. Having heard the submissions of the parties, I am satisfied that the adjustment to the rates and allowances sought is consistent with the statement of principles set out in the Safety Net Review, Wages, April 1998 decision and the Furnishing Trades decision.

PN86

In relation to the parts relevant to New South Wales, having heard the submissions filed by the parties and having heard the submissions at the hearing today, I am satisfied that the wages rates have been reviewed by the parties in accordance with the principles established by the Full Bench in the paid rates review decision. The application to increase the rates for the relevant safety net adjustment decisions from 1991 through to 2002 is by the consent of the parties.

PN87

Having heard the submissions, I'm satisfied that the adjustment to the rates and allowances as sought is consistent with the statement of principles set out in the Safety Net Review, Wages, April - consistent with the principles established in the Safety Net Review decision of 2002 and the Furnishing Trades decision. Orders reflecting this decision will issue and will operate from the first pay period to commence on or after 17 July, 2003 and remain in force for a period of 6 months. Is there anything that has been neglected or overlooked, ladies and gentlemen? Nothing at all? All right. Look, I thank you very, very much for your hard work on this file, and all I can say is that another one has hit the dust and I'm adjourned. Thank you.

ADJOURNED INDEFINITELY [12.47pm]