C0084/499, Transcript of Proceedings [2003] AIRCTrans 4090 (17 September 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LARKIN

C No 00844/1999
C2003/2483

MANILDRA GROUP - PUBLIC TRANSPORT UNION
RAIL OPERATIONS AWARD 1996

Review under Item 51, Schedule 5,
Transitional WROLA Act 1996 re
conditions of employment

Application under section 113 of the Act
by Australian Rail, Tram and Bus Industry
Union to vary the above award re safety net
review - wages from 1997 to 2003

SYDNEY

11.41 AM, MONDAY, 1 SEPTEMBER 2003

PN1

THE COMMISSIONER: Could I take appearances, please?

PN2

MR A. THOMAS: If the Commission pleases I appear on behalf of the Rail, Tram and Bus Union.

PN3

MR W. ALLPORT: If it please the Commission I appear on behalf of the Manildra Group.

PN4

THE COMMISSIONER: Yes, Mr Thomas?

PN5

MR THOMAS: Commissioner, by a decision and order in late November, early October 2001, the Commission partially applied the outcome of an Item 51 review of the Manildra Award. It remained for the minimum rates adjustment of the wage rates in the award to be completed. The award it is noted in subclause 7.2 is a paid rates award.

PN6

Commissioner, the award was created in July 1996. It was the product, amongst other thins, of a decision by the Manildra Group to undertake certain of its rail operations that are performed, associated with its overall operations. Up until that time that work had been performed by employees of the State Rail Authority which subsequently became Freight Corp.

PN7

As a consequence of that decision Manildra proceeded to directly employ a number of locomotive drivers and rail operators. As a paid rates award the wage rates in the award at the time reflected the actual wage rates being paid. That in turn based on the paid rates award was based on some enterprise agreement rates paid at that time within State Rail. It has, of course, consequently slipped behind because of subsequent enterprise agreements within the Manildra Group.

PN8

Commissioner, the completion of the minimum rates adjustment process in a number of respects was delayed in this matter as it was pending the outcome of the Locomotive Enginemen's New South Wales Award matter and the reason for this is that the key classification in the Manildra award which has been determined as the locomotive driver was based on, when the award was made, the locomotive driver within the State Rail Authority. You will note from my earlier submission, Commissioner, the Manildra Group picked up work that was directly performed by State Rail and therefore the work performed by drivers in both organisations was essentially the same.

PN9

It was the view of the parties that in applying the minimum rates adjustment that it would be important to ensure that that position be maintained to the extent that the principles permit. Commissioner, on 21 August the RTBU forwarded to the Commission a copy of a draft award that would do two things, firstly to reflect the outcome of the minimum rates adjustment and secondly to apply safety net adjustments from 1997 to 2003 inclusive. Accompanying that order was an explanatory note which, amongst other thins, set out the methodology utilised by the parties in reaching the figures in the draft order forwarded to the Commission.

PN10

Subsequent to that, Commissioner, and in light of some discussion between the Commission and the parties the methodology has been re-worked and that re-working, Commissioner, is set out in an e-mail that was forwarded both to the Commission and to Mr Allport in the last couple of days. It would not be subject to the Commission's indulgence my intention to read that e-mail rather than to have it simply noted for the record that it is the document that we say on the basis of discussion with the Commission should reflect the application of both the minimum rates adjustment and the safety net adjustment.

PN11

THE COMMISSIONER: That correspondence was copied to Manildra, Mr Thomas?

PN12

MR THOMAS: Yes, Commissioner, I sent a copy to Mr Allport this morning and I have had the opportunity to discuss it with him and whilst Mr Allport will speak for himself he has informed me that they accept the email. The Commission will also note that even with the minimum rates adjustment and the application of safety nets there remains a residual and that in accordance with the practice of the Commission has been inserted as a schedule in the draft order.

PN13

Commissioner, we would submit to you that the documentation before you has been done in accordance with the paid rates principles of this Commission that it therefore meets those principles. Further, that in accordance with safety net adjustment decisions of this Commission that the draft order forwarded to you is consistent with those decisions. It will require some amendments, the draft order.

PN14

THE COMMISSIONER: Do you have another draft order because the draft order that I received on 21 August would change now?

PN15

MR THOMAS: Yes. I don't have a draft order with those changes. There are in fact three changes that would need to be made. I can have it done and forwarded to the Commission but for the record we would say that the amount of $614.30 for the locomotive engine driver will become $613.90. That the amount of $573 for the rail operator will become $572.70.

PN16

THE COMMISSIONER: Because the internal relativities have been applied, have that?

PN17

MR THOMAS: Yes, they have.

PN18

THE COMMISSIONER: $572.70.

PN19

MR THOMAS: One other minor alteration, Commissioner, is in the schedule A of the transitional provisions. With respect to the locomotive engine driver the amount set out in the draft order is $654.24. That is an error, it should be $645.24, which is the current amount in the award.

PN20

THE COMMISSIONER: And the rail operator is still at $590.90?

PN21

MR THOMAS: That figure is correct. Yes, Commissioner. As you will note, Commissioner, given that we are compressing I guess about six safety net adjustments into one it would not offend the 12 month period rule that the Commission applies, particularly if you look at the schedule where those safety net adjustments will not have any effect on the actual wages or conditions of the employees, even from an award point of view. From an enterprise agreement point of view there is still a significant gap between the wage rates in the award and the actual wage rates paid under an enterprise agreement so the outcome of this matter would not offend that principle of the Commission in any way.

PN22

THE COMMISSIONER: It is up to the 2003 safety net, Mr Thomas?

PN23

MR THOMAS: Yes. The application is to insert the 2003 as distinct from the earlier matter where it is only up to 2002.

PN24

THE COMMISSIONER: No, that is all right, your application in C2003/2483 reflects that. I think your draft order reflects that too.

PN25

MR THOMAS: That's correct. Commissioner, on the basis of the submissions put to you and the documentation that is currently before the Commission, in particular the material in the e-mail of last Friday, we would submit that all of the tests necessary to vary the award in the manner sought have been met. Therefore we would seek the Commission grant the application for the safety net adjustments and also finalise the Item 51 review process with respect to the minimum rates adjustment with an operative date being the first pay period on or after today and the order to have a life of six months. If the Commission pleases.

PN26

THE COMMISSIONER: Yes, thank you, Mr Thomas. Mr Allport?

PN27

MR ALLPORT: Commissioner, I've read the application that was submitted by Mr Thomas on 21 August and we have had discussions on his fax of Friday last and I concurred with those things that have said in there. I have no objection to what has been submitted by Mr Thomas this morning.

PN28

THE COMMISSIONER: Mr Allport, did you get a copy of the draft order which was forwarded to the Commission on 21 August?

PN29

MR ALLPORT: Yes, I have that here.

PN30

THE COMMISSIONER: You note the changes that Mr Thomas has just eluded to in regards to that draft order?

PN31

MR ALLPORT: That's correct.

PN32

THE COMMISSIONER: Mr Allport, in regards to increasing the rates of pay in the award and allowances up to the decision in the safety net review 2003 decision, will that have any actual impact on the rates of pay, paid by Manildra to its employees covered by this award?

PN33

MR ALLPORT: No, none whatsoever. In line with our enterprise agreement and what's contained in the award the workers receive significantly more than what's in the award.

PN34

THE COMMISSIONER: So, Manildra is satisfied with the methodology used by the union and its draft order filed and also that's to do with the Item 51 4 and 5 review but also consents to the application to vary for the safety nets up to the 2003 adjustment?

PN35

MR ALLPORT: That's correct.

PN36

THE COMMISSIONER: Anything else, Mr Allport, at all?

PN37

MR ALLPORT: No, that will be all, Commissioner.

PN38

THE COMMISSIONER: Thank you very much for those submissions. Mr Thomas, anything at all?

PN39

MR THOMAS: Nothing further, Commissioner.

PN40

THE COMMISSIONER: This decision concerns the review of the Manildra Group Rail Tram and Bus Union Operations Award 2001 pursuant to subitems 51(4) and (5) of the WROLA Act and an application pursuant to section 113 by the Australian Rail Tram and Bus Industry Union to vary the award to apply safety net adjustments up to 2003.

PN41

On 28 September 2001 I issued a decision in relation to the review of the award. In that decision I stated, and I quote:

PN42

I have decided that clause 8 rates of pay will not be reviewed at this stage. Properly fixed minimum rates of pay in the Public Transport Industry has been subject to discussion and has not at this stage been determined. This award will be re-listed to address clause 8 when a determination of rates of pay in the Public Transport Industry has been made.

PN43

The matter was relisted today, 1 September 2003, to conclude the review of the award under subitem 51 (4) and (5) of the WROLA Act and also to address the union section 113 application. Having regard to the material filed by the RTBU and having heard the submissions at the hearing today made by Mr Thomas and Mr Allport, I am satisfied that the wage rates have been reviewed by the parties in accordance with the principles established by the Full Bench of the paid rates review decisions.

PN44

On 29 August 2003 the RTBU filed a document representing its methodology for conversion of the award which was made as a paid rates award in 1996. That methodology commenced with the selection of a clear classification in the award being the driver classification. This classification was then compared with the locomotive drive in New South Wales, which had a relativity to the rails metal figure of 116.7 per cent in 1996.

PN45

As the two classifications were comparable the relativity of 116.7 per cent for the driver in the Manildra award was adopted and applied to the metals C10 rate of 441.20 as at 1996 to arrive at a properly fixed minimum rate of pay for the driver. Internal relativities were then applied for the remaining classification.

PN46

The application to increase the rates for the relevant safety net adjustment decisions from 1991 through to 2003 is by consent of the parties. Having heard the submissions I am satisfied that the adjustment to the rates and allowances as sought is consistent with statement of principles set out in the safety net review of wages made 2003 decision and a furnishing trades decision.

PN47

Orders reflecting this decision will issue and will operate from the first pay period to commence on or after 1 September 2003 and will remain in force for the period of six months. If there is nothing further I thank you gentlemen for your attendance and the Commission stands adjourned.

ADJOURNED ACCORDINGLY [12.01pm]