C2002/1757, Transcript of Proceedings [2003] AIRCTrans 3290 (5 August 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
DX1344 Sydney Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N TO 101143

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON

C2002/1757
C2002/6025
C2002/6026
C2002/6027

TRANSPORT WORKERS AWARD 1998

TRANSPORT WORKERS (REFUSE, RECYCLING
AND WASTE MANAGEMENT) AWARD 2001

TRANSPORT WORKERS (MIXED
INDUSTRIES) AWARD 2002

TRANSPORT WORKERS (DISTRIBUTION
FACILITIES) AWARD 1996

Applications under section 113 of the Act by the
Transport Workers Union of Australia and others
to vary the above awards re casual employment

SYDNEY

4.20 PM, FRIDAY, 18 JULY 2003

Continued from 3.2.2003 in Melbourne

THESE PROCEEDINGS WERE CONDUCTED BY VIDEOLINK AND RECORDED IN SYDNEY

PN128

THE SENIOR DEPUTY PRESIDENT: No appearances here in Sydney. I will take appearances in Canberra.

PN129

MR D. ANDERSON: I appear on behalf of NatRoad and with your leave I will also be representing SARTA, South Australian Road Transport Association.

PN130

THE SENIOR DEPUTY PRESIDENT: Yes. It might be a convenient time for me to mention a fax received from SARTA indicating they couldn't be represented today but that you would be representing them. I will return to that in a moment because it looks as if it was copied on everybody so I probably don't need to go through its content but if there is anyone who has not received it, it might be appropriate that a little later in this hearing I indicate what SARTA has had to say. I will take appearances now in Melbourne.

PN131

MR L. DUFFIN: I appear on behalf of the Transport Workers Union.

PN132

MR P. RYAN: I appear on behalf of the Australian Road Transport Industrial Organisation, or seeking leave to appear actually.

PN133

MS F. FIELD: I appear on behalf of the Australian Industry Group.

PN134

THE SENIOR DEPUTY PRESIDENT: I think for today's purposes we can assume that there will be no issue in relation to leave in any case where it has been sought. Anyone object to that? All right. Now, I have received a number of documents since the last time this matter was on and at an appropriate time, if you want me to, I can identify them but I think most importantly I should identify the most recent document I have received from you, Mr Duffin, that has attached to it no doubt that the latest version of the draft orders you seek but maybe I will start with you and you can tell me what has been happening and what you propose should occur today.

PN135

MR DUFFIN: Thank you, your Honour. Yes, there are four new draft orders that the TWU would seek in relation to this matter. I think the gist of it is that in our previous draft orders the option to convert from a regular and systematic casual to a permanent employee was to occur at the conclusion of six months with a facilitative provision in relation to 12 months. The facilitative provision has been deleted and the six month period is now 12 months. In relation to the casual loading where previously we were seeking 25 per cent, the draft order now provides that the casual loading be increased to 22.5 per cent as at 1 January 2004 and from 22.5 per cent to 25 per cent as at 1 January 2005.

PN136

The other perhaps less significant change in one respect is that there were some more perhaps detailed prescriptions in relation to some obligations upon employers to provide sort of ongoing written advice to casual employees in relation to their status. Those provisions have been removed. Your Honour, those draft orders came about through negotiation with ARTIO. From our perspective I should indicate, your Honour, that that is as far as we are prepared to go in relation to any negotiations. We have received SARTA's fax and I have had a brief discussion with Mr Anderson this afternoon.

PN137

I should point out in relation to paragraph 5A of SARTA's fax that the TWU has not advised what is said there formally and is not intended to be so. What is intended that irregular and non-systematic casuals be excluded, that is true casuals within the meaning of that expression and we would say as well, your Honour, that really the issue of minimising and avoiding unnecessary paperwork has been addressed in relation to our negotiations with ARTIO. That was one of the concessions that ARTIO had sought and we have agreed to within the terms of the draft order.

PN138

Perhaps that is about as much as I need to put on the record at this time, your Honour, unless your Honour has any questions in relation to those matters. I do have some submissions in relation to the future progress of this matter based on what SARTA has said but perhaps it might be appropriate to listen to Mr Anderson as the representative in that respect.

PN139

THE SENIOR DEPUTY PRESIDENT: Well, I might just stay with Melbourne then and see the extent to which we do have some consensus about the latest drafts. Mr Ryan?

PN140

MR RYAN: Thank you, your Honour. We have received a draft order by facsimile today and I understand that there is a further one been issued this afternoon which I haven't had the chance to examine in detail. I am assuming that it basically meets the parameters within which we have engaged in discussions with the TWU and incidentally I might add on behalf of what I would term the industry as a whole and other employer associations were kept informed of our discussions with the union and we believe that we, in good faith, negotiated an agreement for the implementation of the metals casual decision into the transport industry and we do not oppose what the TWU is seeking. The only issue that I would draw at this time, your Honour, is that we have a period of time just to check that the drafts reflect our understanding of what has been discussed and agreed.

PN141

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Ms Field?

PN142

MS FIELD: Thank you, your Honour. Your Honour, we have just received the revised draft order this afternoon and like Mr Ryan I have not had the opportunity yet to check those documents, however, if they reflect the position that Mr Duffin has put then we will not be opposing the application in the terms that have been broadly outlined to you today but like Mr Ryan, would like the opportunity to be able to check the orders in detail.

PN143

THE SENIOR DEPUTY PRESIDENT: All right. Mr Anderson?

PN144

MR ANDERSON: Thank you very much, your Honour. I do of course have Mr Shearer's fax and I can say we have had quite detailed discussions with SARTA and our positions match fairly comfortably. Mr Ryan is correct in saying we have also been party to consultations with the other employer groups and I am also aware and have in my possession the offer of a consent settlement on the part of the TWU. I have taken further instructions from my membership about the matter and NatRoad believes that a consent arrangement is achievable and fairly much within our collective read. NatRoad has done a fairly extensive survey of its members on the issue of casualisation of labour.

PN145

A fairly uniform pattern has emerged from our discussions with our members and that is that many of our members do employ casuals in the true sense of the word, occasional and irregular basis as it is so described. These arrangements benefit both the employer and the employee and generally are used to meet peaks and seasonal activity, are used to cover contingencies like sick leave and the occasional weekend shift.

PN146

Accordingly, we see no fundamental reason to change the format around those, what I might put, genuine casuals, so in seeking to achieve a consent agreement my instructions are to protect that particular sector as much as possible. Firstly to make sure that in a definitional sense the occasional or non-systematic or irregular basis so described in 12.5.6, number 8 of the revised orders, is sufficiently rigorous to protect employers and employees who are involved in genuine casual labour, if I can put it that way, and indeed, to ensure that some of the more burdensome requirements placed on employees of casual labour so described in the orders do not extend to again, if I can call it that sector where flexibility and the very essence of employment of casual labour in that sense means a flexibility and not too Draconian requirements in terms of conditions of employment are placed upon the employer so that they can fill gaps and seasonal needs.

PN147

We have, as Mr Duffin said, we had a discussion this afternoon. I think we are well advanced in terms of reaching agreement on those aspects, they have already been met to some extent in the revised orders. however, I have only recently received those orders and we would like some more time please, to study them and talk further with the union around the points that I have mentioned.

PN148

THE SENIOR DEPUTY PRESIDENT: All right. Well, Mr Duffin, maybe I will ask you now where you propose we go from here. It seems to me a short - at the very least, a short time needs to be given to everybody to consider your latest drafts, then we have the additional - and assuming there is not an issue there - we have any additional time that might need be given to NatRoad and SARTA, and consideration of what we do in the event a consent or at least a not-opposed position is achieved and whether we should perhaps pencil something in, in relation to that. What are your thoughts?

PN149

MR DUFFIN: Your Honour, my suggestion will be in the light of positions of the parties that if perhaps a report back could be organised for a week's time whereby that would give the opportunity for those who intend to not formerly oppose to indicate that formerly in that context, and indeed that would allow the representatives of SARTA and NatRoads to have both a look at those orders and a look at what they seriously think needs to be rectified.

PN150

In that situation we would say following that report-back hearing that the matter be heard fairly speedily thereafter. It seems to me that the issues in dispute are becoming increasingly narrowed rather than broadening out and so that would be an appropriate course, we would submit, your Honour, but I would also suggest, your Honour, in that context, that perhaps prior to the report-back hearing that any witness evidence be provided to the Commission. That was intended to be done by Tuesday of this week, your Honour, and I have been sort of sitting on our material pending what came out about this but that would give both parties both in terms of the potential fighters, if you like, rather than the non-opposers, for both the Commission and ourselves to appropriately programme it next Friday, if that would be an appropriate thing to do.

PN151

THE SENIOR DEPUTY PRESIDENT: I suppose so, but I guess in a way even though I am assuming that the documents are in existence in compliance with the directions, I am just wondering what will be gained by requiring them to all be exchanged now. What I had in mind was maybe - unfortunately I can't do a report back, I think, next Friday, I am already pretty well committed. I could do one the following Monday though, the 28th, depending on everyone's availability. I am wondering what is achieved by an exchange of documents if happily we find on the 28th you have got a consent position, Mr Duffin?

PN152

MR DUFFIN: Perhaps not too much, your Honour, in that concept, so - - -

PN153

THE SENIOR DEPUTY PRESIDENT: Well, then, SARTA and NatRoads should be aware that if a consent position isn't announced on the 28th I would expect by close of business that day they would exchange their documents with the TWU as would the TWU with them and on that day we will also set a date for hearing the SARTA and NatRoad opposition and I will give you - well, whatever date I am able to but I understand that your request will be for an early date.

PN154

MR DUFFIN: That is correct, your Honour.

PN155

THE SENIOR DEPUTY PRESIDENT: All right. Well - excuse me a minute. All right. I can fit in with most times that day assuming that this videolink is available and we can check that pretty readily. Does anyone have a preference for morning or afternoon? I don't mind, I can't do 4 pm on that day I have a conference.

PN156

MR DUFFIN: My preference would be for morning, your Honour.

PN157

THE SENIOR DEPUTY PRESIDENT: Before 10 or at 10?

PN158

MR DUFFIN: 10 would suit me best.

PN159

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Anderson, can you do 10?

PN160

MR ANDERSON: I am sorry, your Honour, could you just inform me of the date again; I wasn't - - -

PN161

THE SENIOR DEPUTY PRESIDENT: Monday, 28 July at 10 am.

PN162

MR ANDERSON: Yes, we are very pressed for time, your Honour, given all the other things that are on in the Commission at the moment but yes, we are okay with that date.

PN163

THE SENIOR DEPUTY PRESIDENT: All right. Mr Ryan and Ms Field, any problems?

PN164

MS FIELD: No, that is fine.

PN165

MR RYAN: That is fine, your Honour.

PN166

THE SENIOR DEPUTY PRESIDENT: All right. Well, I will assume that this videolink is available, I will have my associate check it as soon as we adjourn. If it is not she can contact you and we can nominate another time on that day but for the time being what I am going to do is now adjourn until Monday, 28 July at 10 am. It will be by video conference hook-up. It will be for a report back and programming if required. I think I have recorded on transcript what might occur in the event that a consent position is not achieved on that day, that will be the immediate exchange of witness statements in compliance with the directions and the setting of a date for hearing any remaining opposition. Can we achieve anything further today? Anyone in Melbourne?

PN167

MR DUFFIN: No, your Honour.

PN168

THE SENIOR DEPUTY PRESIDENT: Anyone in - Mr Anderson in Canberra?

PN169

MR ANDERSON: No, I am fine, your Honour, thank you.

PN170

THE SENIOR DEPUTY PRESIDENT: All right. We will adjourn now until the 28th.

ADJOURNED UNTIL MONDAY, 28 JULY 2003 [4.40pm]