AG2003/6262, Transcript of Proceedings [2003] AIRCTrans 3653 (21 August 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON

AG2003/6262

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Shearers Road Freight Pty Limited for
certification of the Shearers Road Freight
Enterprise Agreement 2003

SYDNEY

9.07 AM, THURSDAY, 7 AUGUST 2003

Adjourned sine die

PN1

THE SENIOR DEPUTY PRESIDENT: Can I have appearances in this matter?

PN2

MR A. SPOTTISWOOD: If the Commission pleases, I appear for Shearers Road Freight Pty Limited, and appearing with me is MR R. WARD, appearing as the employee representative.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Spottiswood. Yes?

PN4

MR SPOTTISWOOD: Thank you, Senior Deputy President. The certification of the Shearers Road Freight Enterprise Agreement 2003 is sought under section 170LK of division 2 of the Workplace Relations Act, noting that the agreement does not replace a previous agreement. The agreement for which certification is now sought contains clauses that addresses all the relevant allowable matters listed in section 89A(2) of the Act.

PN5

The agreement also contains clauses that provide for consultation with employees in the event of workplace changes and for dispute resolutions purposes. The employment matters covered in this agreement include an anti-discrimination clause to give effect to the objectives of paragraph 3(j) of the Act. Having regard to the no disadvantage test provided for in the Act and nor to simply demonstrate the agreement complies with section 170XA I've prepared a comparison of the major elements of the agreement and the relevant award to demonstrate compliance, and if the Commission pleases I'll table that document now.

PN6

THE SENIOR DEPUTY PRESIDENT: Yes, I'll mark this document. It will become exhibit Shearers 1.

EXHIBIT #SHEARERS1 COMPARISON DOCUMENT
DEMONSTRATING COMPLIANCE

PN7

THE SENIOR DEPUTY PRESIDENT: Yes?

PN8

MR SPOTTISWOOD: Overall, Senior Deputy President, you'll see that the terms of the agreement shown in the table show that they are in excess of the relevant awards particularly in regard to the long distance driver employees who form the majority of employee numbers.

PN9

THE SENIOR DEPUTY PRESIDENT: Just pause there for a moment. I think you might use that term in a manner different to how I use it in relation to Federal Long-Distance Drivers Awards. The Federal Long-Distance Drivers Award is not an award that you have used for the purpose of the no disadvantage test it is solely a State award.

PN10

MR SPOTTISWOOD: Its solely a State award, yes.

PN11

THE SENIOR DEPUTY PRESIDENT: Is any interstate trip work undertaken?

PN12

MR SPOTTISWOOD: Yes, there is, there's interstate work. Its rather odd I think that a lot of the industry in fact here - and I've actually that stated at the bottom of the table - a lot of the industry seem to use the Long-Distance Award as a reference point in a lot of their negotiations and payments and so simply because I think its more detailed and they are more widely used, even though we think many people are not responding to it but they tend to still raise it. Now, we use the long distance award but obviously as you're aware the award that applies in New South Wales is the Transport Industry State Award and that's what I've used for the comparison.

PN13

THE SENIOR DEPUTY PRESIDENT: I just have parts of that award in front of me. Can you identify in that award where the cents per kilometres rates are?

PN14

MR SPOTTISWOOD: In the state award?

PN15

THE SENIOR DEPUTY PRESIDENT: Yes.

PN16

MR SPOTTISWOOD: At clause 13, I think. Sorry, Senior Deputy President if you go to the wage rates of the award there is at the last page of the wage rates it actually says the long distance rates but it refers back from clause 13 from the top of my head. Clause 13 indicates long distance work. It is to do with long distance work and the table in the rates summary of the award - I have a copy here if you wish - has the rates, cents per kilometre rate. For grade 7 and below, 26.78 and for grade 8 - they don't wish to raise it - 28.27.

PN17

THE SENIOR DEPUTY PRESIDENT: Do those rates incorporate the 2002 safety net adjustments?

PN18

MR SPOTTISWOOD: Yes, they do.

PN19

THE SENIOR DEPUTY PRESIDENT: Continue?

PN20

MR SPOTTISWOOD: With regard to the rest of the document the comparisons are fairly read. Do you wish me to go through each of the comparisons, Senior Deputy President?

PN21

THE SENIOR DEPUTY PRESIDENT: No, I have them here in front of me or I have this document in front of me.

PN22

MR SPOTTISWOOD: Apart from the table the agreement has not introduced any new conditions of employment that may have any effect on compliance with the no disadvantage test provided for in the Act and in addition the wage rates provided for I mentioned previously on certification will be increased automatically through the application of the consumed price index. This will serve to maintain parity between the agreement and awards at the date of certification. Accordingly, Senior Deputy President, apart from any matters you may wish to raise for the rest of the agreement, I commend the agreement to the Commission.

PN23

THE SENIOR DEPUTY PRESIDENT: Now, Shearers are not a party to any Federal Award?

PN24

MR SPOTTISWOOD: No, they're not.

PN25

THE SENIOR DEPUTY PRESIDENT: They're not a member of any organisation of employers?

PN26

MR SPOTTISWOOD: No, they are not. They are a member of an organisation but not one that is party to the Long-Distance Award.

PN27

THE SENIOR DEPUTY PRESIDENT: I understand, yes. Well, certainly I am concerned and need to think about the fact that long-distance work is the majority of work undertaken by Shearers but the award, by reference to which the no disadvantage test is undertaken, is a State Award, albeit a State Award that has per kilometre rates. So that is a matter I need to consider. First, perhaps, could I have a copy of the notice that was given to employees and is referred to in clauses 5.7 and 5.8, I think, of the statutory declaration?

PN28

MR SPOTTISWOOD: Senior Deputy President, I appear not to have a copy of that notice with me.

PN29

THE SENIOR DEPUTY PRESIDENT: All right. How long would it take you to get a copy of it?

PN30

MR SPOTTISWOOD: I could get it to you today. I have a copy on my computer. I could certainly get it to you today..

PN31

THE SENIOR DEPUTY PRESIDENT: Well, it's important because, reading your statutory declaration, I have some concerns about compliance with section 170LK, namely, the notice that was given, the variations to the agreement and the additional requirements under the Act for notice again to be given.

PN32

MR SPOTTISWOOD: If you're referring to the changes to the agreement, I have a coy of that notice that was given to the employees; but I haven't got a copy of the original notice to the employees.

PN33

THE SENIOR DEPUTY PRESIDENT: The document you have in your possession is something dated 5 June, is it?

PN34

MR SPOTTISWOOD: There were changes made to the document and I have with me a copy of the advice to employees about those changes; but I haven't got a copy of the original one when the agreement was promulgated in the first instance but I certainly can get that to you today.

PN35

THE SENIOR DEPUTY PRESIDENT: Yes, all right. There's just the requirement in section 170LK(8) that you repeat the process again, you see - - -

PN36

MR SPOTTISWOOD: Yes, and we did repeat the process and I'm sure that the representative would attest to that fact.

PN37

THE SENIOR DEPUTY PRESIDENT: I have to see the document.

PN38

MR SPOTTISWOOD: That's fine; I have copy of that document.

PN39

THE SENIOR DEPUTY PRESIDENT: All right. This is not a discretionary matter. I must see the documents; I always call for them. I do need that other document that you don't have in your possession today. So we can talk a little later about that but in the meantime give me a copy of what you do have there, namely, this notice to employees about changes to the agreement which, I think, is dated 5 June - well, no, it's undated. What is this ruling before Commissioner Deegan in Canberra?

PN40

MR SPOTTISWOOD: It's just another matter we had. A commitment that had been picked up on some items concerning the use of - and that's where you came in earlier - or the citing of the Long-Distance Award in agreements where the employers in fact were not entitled to be cited in the agreement, they weren't parties to the award.

PN41

THE SENIOR DEPUTY PRESIDENT: So do you have the C No before Commissioner Deegan>

PN42

MR SPOTTISWOOD: No, I haven't.

PN43

THE SENIOR DEPUTY PRESIDENT: When were you before the Commissioner?

PN44

MR SPOTTISWOOD: That was some weeks ago. It was in April or May.

PN45

THE SENIOR DEPUTY PRESIDENT: All right, I'll speak to her associate about that. We'll be able to obtain any relevant documents relating to that. In the meantime though this memo to all employees, which is undated, will become exhibit Shearers2.

EXHIBIT #SHEARERS2 UNDATED MEMO TO ALL EMPLOYEES

PN46

MR SPOTTISWOOD: Thank you..

PN47

THE SENIOR DEPUTY PRESIDENT: Well, I've already mentioned the per kilometre rate which is a matter I need to consider because of the fact that long-distance work is done here and not intrastate work. In relation to clause 16.6.2, you refer to the Long-Distance Drivers Award. Let's have a look at that. I'm just wondering why that is so if you're not party to it.

PN48

MR SPOTTISWOOD: Senior Deputy President, when you look at the Transport Industry State Award at clause 13 it actually does refer back to the Long-Distance Award as the basis for long-distance work so it actually uses the Long-Distance Award. Then at clause 15 of the Transport Industry State Award it says:

PN49

Future adjustments of rates of pay. The union may ...(reads)... Relations Commission as varied.

PN50

So it actually uses that award for its base.

PN51

THE SENIOR DEPUTY PRESIDENT: Your agreement in clause 3.7 defines ordinary time as being periods not exceeding 12 hours, Monday to Sunday, that for drivers and 10 hours for clerical employees.

PN52

MR SPOTTISWOOD: I think some how you've got a copy of the agreement before the amendments were made.

PN53

THE SENIOR DEPUTY PRESIDENT: Well probably then that's as far as we need to go today. Well, there's some substantial procedural problems here Mr Spottiswood. Perhaps when they're attended to you may consider whether there is a need to re-file again and then I will list the matter again for hearing. In the interim though I would need the correct documentation required under the Act. It is not a discretionary matter and I would need to have a fresh statutory declaration so I know the agreement the employees thought they were voting on because there would have been a little doubt in my mind the document before me here would not have passed the no disadvantage test. Now, it might be that that is now happily going to be so because I've got the wrong copy of the agreement in front of me.

PN54

MR SPOTTISWOOD: Senior Deputy President, in which way, from my reference, would it have not passed the no disadvantage test?

PN55

THE SENIOR DEPUTY PRESIDENT: Well, I've just raised something, the ordinary time hours can be worked over any 12 hours, Monday to Sunday.

PN56

MR SPOTTISWOOD: And that's a clause that was changed?

PN57

THE SENIOR DEPUTY PRESIDENT: Yes. The Commission now adjourns.

ADJOURNED INDEFINITELY [9.22am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #SHEARERS1 COMPARISON DOCUMENT PN7
EXHIBIT #SHEARERS2 UNDATED MEMO TO ALL EMPLOYEES PN46