AG2003/5738, Transcript of Proceedings [2003] AIRCTrans 3500 (15 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

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON

AG2003/5738

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the
Act by the Transport Workers Union of
Australia and Another for certification
of the Scott's Sydney Tanker Division
Enterprise Agreement 2003

SYDNEY

2.49 PM, FRIDAY, 25 JULY 2003

Adjourned sine die

THESE PROCEEDINGS WERE CONDUCTED BY VIDEOCONFERENCE IN SYDNEY

PN1

THE SENIOR DEPUTY PRESIDENT: I'll take appearances first here in Sydney?

PN2

MR G. NIGHTINGALE: Your Honour, I appear for the Transport Workers Union of Australia, New South Wales Branch.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Nightingale. I'll now take appearances in Adelaide?

PN4

MR R.J. KUCZMARSKI: If the Commission pleases, I represent Scott's Transport Industries. With me I have MR S. CROLL who is the General Manager of the Tanker Division.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. I'm happy for both of you to remain seated. Now, Mr Nightingale, there's an issue which, I think, has been raised by the TWU concerning the certification. Do you want to address that?

PN6

MR NIGHTINGALE: Yes, your Honour. It's unfortunate that it is the eleventh hour but the issue that we need to raise is the two-tier wage system that is in the agreement. That particular two-tier wage system is a $22 all-up hourly rate through the oil drivers, of whom I believe there are approximately three at Revesby - and I could stand to be corrected either way on three - and approximately eight fuel drivers who experience an in excess of $25 common hourly rate.

PN7

It has only been raised in the last few weeks by one of the oil drivers who has gone over his wage over the last 12 months and compared it with the base rate from Scott's and he has also compared it against the award and there is a huge net detriment when we compare it with the award. The reason we say there is a net detriment is that the particular gentleman started at 4 am in the morning and this $22 doesn't appear to cover the over time rate within that $22 all-up hourly rate; and also the excessive hours that these drivers are performing, up to and over 12 hours per shift. With our calculations that the drivers have done it appears that after nine hours, on this common hourly rate, they fall behind under the award provisions.

PN8

Just regressing a little bit: there were extensive negotiations with the company over the last 12 months and numerous Commission hearings with Commission Jones. This particular issue had been raised throughout the negotiations. Where we struck some form of in-principle agreement at our last negotiations in Adelaide before Commissioner Jones was that the company - Mr Eric Filmer, General Manager of the company - had private discussions with myself and indicated that a $22 rate was a feasible rate, a workable rate for the company, but they were losing these oil contracts that basically have no bearing upon the agreement.

PN9

Also part of those negotiations with Mr Filmer and myself was that we were after a two-year agreement and the company at that particular time agreed that to provide a two-year agreement with a 3 per cent increase, and also that they would provide a meal allowance for these oil drivers only.

PN10

So basically what we are saying is that the fuel drivers are in excess of $25 common hourly rate and the oil drivers are on $22. Provided they don't work over nine hours there is no net detriment but, with later discussions with the delegates, the company has picked up more oil work - and I believe the Caltex work has been secured - so we believe there has been a little bit of deception by the company of the transport workers union about the direction that the oil work was going.

PN11

Hence we have asked for this matter to be adjourned so tha we can have further negotiations with the company, basically on the basis that after 12 months we sit down and look at these rates and if it's proved that there is a net detriment as between the award and the agreement then the company would give a commitment to top up that net detriment to the oil drivers. So that's the position we're in, your Honour.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Kuczmarski?

PN13

MR KUCZMARSKI: Thank you, your Honour. Firstly, may I say that I'm very disappointed that Mr Nightingale has only raised this with me at 12.30 today. I attempted to find out who was representing the Transport Workers Union in this matter a couple of days ago. I spoke to the Federal Office and they directed me to the New South Wales Office. I left a message for Mr Nightingale but I spoke to one of the legal officers who said he would pass on the message and only at 12.30 today did I get this telephone call from Mr Nightingale to say he wishes to raise this matter.

PN14

Secondly, I'll say that Mr Nightingale is correct in his summation in saying that we have had extensive negotiation. We have used the assistance of Commissioner Jones quite extensively. We have held a number of meetings, both recorded and off-record, with Commissioner Jones. We have attended three-day conferences. We have got to the stage where the Commissioner, at the end of the day, was satisfied.

PN15

After the last meeting there was a vote taken by the employees, at which a member of the Registry was present as directed by Commissioner Jones, a valid majority was reached. At that vote there were eight for and one against. Mr Nightingale is correct in saying that our three employees that do oil work - now, I'm not about to ask who actually voted for and who actually voted against but there were nine people who attended the meeting in front of the member of the Registry. They voted eight for and one against.

PN16

As a result of that vote Mr Nightingale wrote to Commissioner Jones and said, if I can read from this note:

PN17

Members voted on 27 May ...(reads)... request the file to be closed.

PN18
I subsequently attended the report-back with Commissioner Jones and Commissioner Jones, in the transcript of 29 May, and I quote from PN96, said:

PN19

I will record that I have got a report ...(reads)... come to an agreement.

PN20

So we had reached agreement, your Honour, with the assistance of Commissioner Jones. Again, I'm disappointed that the matter brought up by Mr Nightingale was brought up during the negotiations so it was not a new issue. Mr Nightingale's position was reported on transcript. We discussed and debated it. We advised Mr Nightingale that the actual work he is referring to commenced well before either Mr Nightingale or myself were on the scene, and in fact before Mr Croll was on the scene, who has recently been appointed General Manager and who sits next to me at the bar table.

PN21

The negotiations were sometimes strained but sometimes they were conciliatory. We got to the stage where we reached agreement on a whole range of issues, not just this one issue. With the assistance of the Commissioner we have prepared a document that was put to the members and the employees who were eligible to vote. They subsequently voted and, as I have said, the vote was eight for, one against, the agreement being put forward for certification today. Thank you, your Honour.

PN22

THE SENIOR DEPUTY PRESIDENT: All of that might be right but the union no longer consents today to certification. That is not a matter that is discretionary. I do not have the consent of the union to this certification proceeding today. So what else can occur other than the adjournment, Mr Kuczmarski?

PN23

MR KUCZMARSKI: Thank you, your Honour. Mr Nightingale has asked for a commitment from the company for a 12-month review.

PN24

THE SENIOR DEPUTY PRESIDENT: Yes.

PN25

MR KUCZMARSKI: The agreement that we have in front of us already has an increase in the rate of pay in the second year of the agreement; there is a 3 per cent increase that has been negotiated.

PN26

Secondly, we have done a calculation of the hours and, due unfortunately to the lateness of time, I haven't been able to produce a document for your Honour to view but I've received notification from our Sydney office that, based upon the hours that these three trucks would have worked over the last month, we have an average of 7.1 hours per day per driver. Now, notwithstanding the drivers have actually performed more work than that on each day in the last month and because of the lateness we have only been able to get the figures for the last month, just the two drivers worked on average a higher number of hours per day than they would have if we had had three drivers or if we had had three vehicles operating this work.

PN27

The commitment I can give to the Commission from the company is that if Mr Nightingale wishes to pursue this matter we will reduce, under the agreement, every employee who totals a minimum of 35 hours - we will undertake to make sure that the drivers work no more than their statutory limit under the award and under the agreement by introducing further employment of drivers to cater for the work.

PN28

I do say that I am loath to suggest that that is what the company's position would be because Mr Nightingale is quite clearly determined that the current employees may be disadvantaged in their net take-home pay because of the hours they currently work; but if we were to reduce the number of hours to the minimum entitlement of 35 by drivers, we meet two demands of the TWU. One, gainful employment for other people in the industry; and, two, the minimum wage entitlement. So we could give that undertaking if your Honour so requested us to do so.

PN29

THE SENIOR DEPUTY PRESIDENT: In that case there wouldn't be an agreement before me for two reasons: this file would then be closed. Those changes being so substantially different from the EBA you would go back to the negotiating table, take another vote, enter another agreement and lodge another application.

PN30

It seems to me there is only one way for the Commission to deal with this today and that is to adjourn it. Either of you has liberty to apply to have the matter called on again at very short notice should in fact you now reach agreement or should you reach agreement on the terms of any undertaking that might allow this agreement to be certified. The Commission now adjourns.

ADJOURNED INDEFINITELY [3.00pm]