AG2003/7234, Transcript of Proceedings [2003] AIRCTrans 4238 (25 September 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LARKIN

AG2003/7234

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by McClintock's Transport Pty Limited for
certification of the McClintock's Transport
Enterprise Agreement 2003

SYDNEY

3.30 PM, TUESDAY, 9 SEPTEMBER 2003

PN1

MR P. HOULIHAN: I seek leave to appear for McClintock's Transport.

PN2

THE COMMISSIONER: Yes. As there is no one else intending to make an appearance, it would appear, Mr Houlihan, then leave is granted.

PN3

MR HOULIHAN: Thank you very much. Commissioner, this is an application made pursuant to section 170LK of the Workplace Relations Act. On 26 August a series of documents were filed with the Commission relating to this matter. It is an original and four copies of the McClintock's Transport Enterprise Agreement: an original copy of the form R30 statutory declaration made by Mr Tom Earls of IR Australia; an original R29, being an application for certification; a copy of the notice issued to employees pursuant to 170LK(2); a copy of the ballot form signed by all employees.

PN4

Commissioner, the agreement is an agreement that adopts the Long-Distance Drivers Award of this Commission and simply sits on top of it. It has a provision for disputes settling, which is clause 3 of the agreement. Clause 4 deals with rates of pay and deals with the existing routes that those rates of pay relate to.

PN5

THE COMMISSIONER: Those routes aren't in the award?

PN6

MR HOULIHAN: No, Commissioner. The award works on a matrix of essentially the capital cities and a number of key provincial centres. I think, for argument's sake, Shepparton is in the matrix in the Long-Distance Award but I don't think Gympie is. Commissioner, the number of persons employed was nine and the nine persons voted in favour of the agreement.

PN7

THE COMMISSIONER: Unanimous, was it?

PN8

MR HOULIHAN: It was a unanimous agreement. There were discussions between the company and the employees in July, late July. Then there was a formal meeting on 7 August at which the draft document was given to employees and the ballot took place on the 23rd; so there were 16 days between those two events. The employees were advised of their representational rights - and you were given a copy of that notice with the documents that were filed on 26 August.

PN9

THE COMMISSIONER: Just a moment. I don't know that I do have that. Yes, I do.

PN10

MR HOULIHAN: Notice To All Employees, it is headed, Commissioner.

PN11

THE COMMISSIONER: Yes, I do have that.

PN12

MR HOULIHAN: Commissioner, it is proposed that a life of two years from today be the operative date of the agreement. It is a term of the agreement, Commissioner, that as the rates are varied in the Long-Distance Drivers Award that they will be reflected in this agreement.

PN13

THE COMMISSIONER: Well, I think the award applies - - -

PN14

MR HOULIHAN: Award applies apart from these agreements.

PN15

THE COMMISSIONER: Apart from the limited provisions. The agreement only covers - it has an applications clause, the disputes settling provision, rates of pay, routes, occ health and safety, and duration.

PN16

MR HOULIHAN: That is it.

PN17

THE COMMISSIONER: All other provisions, where applicable, in the award, which is the Transport Workers Long-Distance Drivers Award 2000 applies.

PN18

MR HOULIHAN: Commissioner, we would ask that the agreement be certified in accordance with the provisions of the act from today's date with a life of two years.

PN19

THE COMMISSIONER: One of the concerns I have - well, of course, it is a very small agreement.

PN20

MR HOULIHAN: Yes.

PN21

THE COMMISSIONER: It is just to do in regards to the rates of pay. All the drivers, the drivers are based on category 6, grade 6 driver in the award, and the routes that you have are not routes that are necessarily outlined in the award. The award does say - - -

PN22

MR HOULIHAN: Commissioner, could I perhaps give you a document that goes to the calculation?

PN23

THE COMMISSIONER: Well, that might be beneficial.

PN24

MR HOULIHAN: Yes.

PN25

THE COMMISSIONER: Because I just draw your attention to in the award 19.4.1(b) where the way the agreement calculates the rate of pay - correct me if I am wrong - but it is a fixed amount per trip.

PN26

MR HOULIHAN: Yes.

PN27

THE COMMISSIONER: There are different ways that can be calculated according to the award. That particular provision in the award, 19.4.1(b) states:

PN28

Where the journey to be completed is not listed in clause 19.4.3, payment must be for actual hours worked and must not be pursuant to a trip rate which provides for a fixed amount per trip. Or -

PN29

Yes, I was just getting to the "or" -

PN30

where the employer has accredited fatigue management plan in place, the hourly rate may be used to calculate a trip rate for any journey by multiplying the hourly rate by the number of driving hours specified in the FMP for that journey.

PN31

Then it goes on about fatigue management - and that is in 19.4.1(c).

PN32

MR HOULIHAN: Commissioner, if I could just refer you to clause 6 of the agreement, it deals with at 6.2. fatigue management - the company is one of the earliest to be involved in fatigue management and there is a proper fatigue management plan in place. I just you also to - - -

PN33

THE COMMISSIONER: And that is administered by a Queensland department.

PN34

MR HOULIHAN: Yes.

PN35

THE COMMISSIONER: Yes, I see.

PN36

MR HOULIHAN: Yes, they are all administered by State departments.

PN37

THE COMMISSIONER: Yes. The document you have just handed up to me, I think it might be appropriate that I mark that for the file. We will mark it H1, thank you.

EXHIBIT #H1 FATIGUE MANAGEMENT PLAN

PN38

MR HOULIHAN: Thank you.

PN39

THE COMMISSIONER: Just describe the document again, Mr Houlihan.

PN40

MR HOULIHAN: Commissioner, this is simply a spreadsheet that starting at the left of the page nominates the trip and it says:

PN41

All trips are return trips unless otherwise indicated. Driving hours are based on the registered fatigue management plan.

PN42

The Gympie/Cairns, Gympie/Mackay, and so on, all the way down to Gympie/Maroubra, obviously the company is based in Queensland, Commissioner - I didn't mention that. We then in the next column have the distance. We then have the time that is taken for that distance. The $20.77 per hour, which is the grade 6 rate from the Long Distance Drivers Award; the overnight allowance, how many overnights are allocated; and then the allowance - and the allowance is obviously $21.52 per night - so, for argument's sake, the Cairns/Gympie trip, there are two allowances, which is $43.04.

PN43

Commissioner, the loading and unloading - and this is important in that loading and unloading is paid on all rates on all trips. There are, in fact, very, very few trips where loading and unloading is done. It is essentially - it has been a fairly long-standing over-award payment, if you like, that exists in the company.

PN44

THE COMMISSIONER: Through its agreements. The award provides for the payment of that allowance.

PN45

MR HOULIHAN: Yes, when the work is actually done.

PN46

THE COMMISSIONER: Yes.

PN47

MR HOULIHAN: And that has been, as you can imagine, a fairly highly-contested provision and it is very clear. So, what happens, these drivers are essentially what are termed line-haul drivers. They get into a loaded truck and they walk away from a loaded truck. They get to a depot and walk away. There is no loading or unloading involved in virtually all cases. We can't say in all cases because, from time to time, it does happen. And you can see there then, Commissioner, when you put the loading and unloading in, we get the rate. We compare that next to it with the award and you will see that there are a number of those rates are less than the award. That is because of the loading and unloading situation.

PN48

THE COMMISSIONER: Why would the rate be less than the award when -would the agreement be less than the award if - doesn't the agreement include the loading and unloading allowance even when it is not worked.

PN49

MR HOULIHAN: It does, Commissioner, and it has been an agreement between the company and the employees - or when I say an agreement - - -

PN50

THE COMMISSIONER: Yes. No, it is not so much that.

PN51

MR HOULIHAN: I am just trying to put it in context, Commissioner.

PN52

THE COMMISSIONER: Yes.

PN53

MR HOULIHAN: What has happened is, like virtually any transport operator, until five or six years ago virtually all drivers would have done loading and unloading and it has always been a part of their rate of pay. What has happened has been that increasingly companies have moved away from the drivers doing that. In this case there has been a provision arrived at for it to be gradually phased out. What is happening is, the company is simply not paying - is not increasing that rate, if you like, and is allowing it to fall into disrepair over time with the agreement of the employees.

PN54

THE COMMISSIONER: But Mr Houlihan that is not the question. The question is the award rate of pay you have on exhibit H1 that wouldn't include the loading and unloading rate, would it?

PN55

MR HOULIHAN: The award rate would include the - - -

PN56

THE COMMISSIONER: Yes, that you have - - -

PN57

MR HOULIHAN: The rate that we are comparing it to does.

PN58

THE COMMISSIONER: Yes.

PN59

MR HOULIHAN: The rate we are comparing it to has the loading and unloading rate in it.

PN60

THE COMMISSIONER: So this award rate, say at the top 783.80, is the loading and unloading rate.

PN61

MR HOULIHAN: Yes. That has got a factor of $20 loading and unloading in it to what we say is that if we disregard the loading and unloading rate, you know, on that first trip - - -

PN62

THE COMMISSIONER: But why would you put it in the award because you are saying that it doesn't always apply?

PN63

MR HOULIHAN: Well, because we are comparing it - we have done it to be as frank as we can.

PN64

THE COMMISSIONER: Where is the clause for the loading and unloading?

PN65

MR HOULIHAN: In the award - - -

PN66

THE COMMISSIONER: 19.5 isn't it?

PN67

MR HOULIHAN: In the award, Commissioner?

PN68

THE COMMISSIONER: Yes.

PN69

MR HOULIHAN: Yes.

PN70

THE COMMISSIONER: But it would only counteract each other out anyway, wouldn't it?

PN71

MR HOULIHAN: It is - not yet. It doesn't quite yet. It is getting that way but it doesn't yet. See, 19.5.2 is there because of this circumstance, because a great number of respondents to that award are in exactly the same boat because of the change of methodology and technology over the last few years.

PN72

THE COMMISSIONER: You see, the loading and unloading rate is worked out as a multiplier, isn't it?

PN73

MR HOULIHAN: Yes. Oh, no, hang on. How do you mean, a multiplier, Commissioner, I am sorry?

PN74

THE COMMISSIONER: Well:

PN75

Where an employee is engaged on loading and unloading duties that employee shall ...(reads)... be made where loading and/or unloading duties are required.

PN76

MR HOULIHAN: that is right.

PN77

THE COMMISSIONER: Although you can by written agreement have a fixed allowance.

PN78

MR HOULIHAN: Yes, yes, and that is the position that we are in here.

PN79

THE COMMISSIONER: So how do you say employees are not - on balance do not result in a reduction?

PN80

MR HOULIHAN: Because Commissioner, if you go down to the fourth last, the third last and the second last entries.

PN81

THE COMMISSIONER: Yes.

PN82

MR HOULIHAN: In excess of 60 per cent of all work performed by the drivers under this agreement is performed on the Gympie/Gold Coast, Gympie/Brisbane, Gympie/Brisbane, Gympie/Brisbane, Gympie runs.

PN83

THE COMMISSIONER: So the Gympie/Cairns, how often did they do Gympie/Cairns or Gympie/McKay?

PN84

MR HOULIHAN: I can't tell you. What I am advised of and this was only by phone this afternoon, Commissioner, is that that is about 60 per cent of the work is that and these others occur but not anything like the frequency of those three trips.

PN85

THE COMMISSIONER: And employees rotate through these particular runs?

PN86

MR HOULIHAN: Yes, employees go all through the trips.

PN87

THE COMMISSIONER: Does the employer have a schedule?

PN88

MR HOULIHAN: I don't know, Commissioner, but I could find out and get it for you if you like. I would imagine they would have to.

PN89

THE COMMISSIONER: See, if I look at this there are 13 different trips if I have calculated correctly.

PN90

MR HOULIHAN: Yes. I think that is - - -

PN91

THE COMMISSIONER: Eight trips the rate is down.

PN92

MR HOULIHAN: Yes.

PN93

THE COMMISSIONER: By about $14.

PN94

MR HOULIHAN: Yes.

PN95

THE COMMISSIONER: And one is down by $4.

PN96

MR HOULIHAN: Yes.

PN97

THE COMMISSIONER: But the others are about $14 1/2.

PN98

MR HOULIHAN: Yes.

PN99

THE COMMISSIONER: So eight are down and five are up.

PN100

MR HOULIHAN: And what I am putting to you, Commissioner, is that the ones that are up - - -

PN101

THE COMMISSIONER: Up are the ones that are more - - -

PN102

MR HOULIHAN: The ones where the overwhelming amount of the work is done.

PN103

THE COMMISSIONER: Can I have material on that, Mr Houlihan?

PN104

MR HOULIHAN: Yes, I will get that material for you, Commissioner.

PN105

THE COMMISSIONER: And the nine employees, they all rotate through these trips so I don't have - - -

PN106

MR HOULIHAN: As I am advised that is the case. You don't have people just doing those three and the other people doing the rest.

PN107

THE COMMISSIONER: That would be a roster then. The employer would have a roster?

PN108

MR HOULIHAN: There would be some sort of roster or schedule as you said earlier.

PN109

THE COMMISSIONER: All right. Could you file that material for me within a week, Mr Houlihan?

PN110

MR HOULIHAN: Yes, I will do that for you, Commissioner.

PN111

THE COMMISSIONER: As we have outlined, the agreement is not - well, doesn't have a vast majority of provisions but the award will apply in those cases.

PN112

MR HOULIHAN: Yes.

PN113

THE COMMISSIONER: The statutory requirements for certification on the material before me I am satisfied that they have been met. The - well, it is not - at this point it is not so much even a concern. The only query that I have at this stage is in relation to satisfaction of the no disadvantage test and that test of course is an on balance, but there is nothing much else in the award except I note there is the opportunity of a bonus payment.

PN114

MR HOULIHAN: Yes.

PN115

THE COMMISSIONER: But that is something I can't put a figure on. It may apply, it may not apply so how much weight I can give that when looking at it on an on-balance argument remains to be seen. There is a road safety bonus that I notice there and there is also another bonus in regards to tarps and I am not - I don't know that they are part of or an allowance covered by the award but also the monthly - there is a monthly cleaning bonus as well.

PN116

MR HOULIHAN: They are genuine bonuses, Commissioner, and I think your treatment of them - - -

PN117

THE COMMISSIONER: But are they found in the award?

PN118

MR HOULIHAN: I think your treatment of them is correct. It is not something we can count in as I am advised.

PN119

THE COMMISSIONER: Oh, well, some of the bonuses you can. They have got a dollar figure on them.

PN120

MR HOULIHAN: Yes.

PN121

THE COMMISSIONER: So you know if you do a particular thing you will get - the road safety bonus has got a dollar figure and the tarp and the cleaning has.

PN122

MR HOULIHAN: Yes.

PN123

THE COMMISSIONER: The other performance bonus doesn't - is not necessarily quantifiable. The agreement provides for any form of increase over its life, Mr Houlihan.

PN124

MR HOULIHAN: It does, Commissioner. It provides that as the rates move in the Federal award and catch these rates up they are to be moved in line with those decisions.

PN125

THE COMMISSIONER: All right. So they would stay abreast and if they are above then they would stay above.

PN126

MR HOULIHAN: Above, yes.

PN127

THE COMMISSIONER: All right. Well, look, if you could forward that material to me in regards to these particular trip routes, how often are they - well, how often does each - nine employees, each employee, perform work on those particular trips. So your submission to me is that 60 per cent of the award is performed in the - - -

PN128

MR HOULIHAN: Those three.

PN129

THE COMMISSIONER: - - - Gympie/Gold Coast/Brisbane, Brisbane/Gympie/Brisbane/Gympie route.

PN130

MR HOULIHAN: Commissioner, can I just read what I have got here and make sure that I get - you want me to provide a schedule showing how often each trip is worked by each of the employees?

PN131

THE COMMISSIONER: Well, what it would probably be, there must be some form of roster - - -

PN132

MR HOULIHAN: There would be some sort of schedule, yes, yes.

PN133

THE COMMISSIONER: - - - to tell employees what trip they are going on. Now, say over the last three or four months there would be something that advises them what trip they are on and also there must be some operational document that the employer has in regards to what - where its clients are and how often it does particular runs.

PN134

MR HOULIHAN: Yes.

PN135

THE COMMISSIONER: You understand whatever material that will satisfy me that employees are not being disadvantaged - - -

PN136

MR HOULIHAN: Yes, I understand.

PN137

THE COMMISSIONER: - - - that over a period of time while a couple of times they might run a trip which brings them $14 below what their rate would be under the award - these are approximate figures.

PN138

MR HOULIHAN: If they are loading and unloading.

PN139

THE COMMISSIONER: Well, we have - - -

PN140

MR HOULIHAN: Because that is the other - - -

PN141

THE COMMISSIONER: That is in the equation I have got anyway.

PN142

MR HOULIHAN: Yes, yes.

PN143

THE COMMISSIONER: So if they are only doing that trip occasionally then - and they are doing a trip which brings them up $35 above what the award would be - well logic tells you they are going to be on balance better off.

PN144

MR HOULIHAN: That is right.

PN145

THE COMMISSIONER: Providing they are not losing out more than they are winning and that is the main thing and if I can be satisfied with that then unless anything else arises in front of me then I will certify the agreement based on that material.

PN146

MR HOULIHAN: Okay. I will simply get this material and furnish it to your - - -

PN147

THE COMMISSIONER: Within a week.

PN148

MR HOULIHAN: Yes - to your chambers.

PN149

THE COMMISSIONER: Yes, speak to my office, my associate.

PN150

MR HOULIHAN: And assuming that that meets your satisfaction, you will then register the agreement?

PN151

THE COMMISSIONER: Yes.

PN152

MR HOULIHAN: Okay, thanks, Commissioner.

PN153

THE COMMISSIONER: And I think you will know before you send it to me whether it is going to satisfy me.

PN154

MR HOULIHAN: I think I have a pretty clear idea of what you want, Commissioner, okay.

PN155

THE COMMISSIONER: Okay, all right?

PN156

MR HOULIHAN: Thanks, Commissioner.

PN157

THE COMMISSIONER: On that basis the Commission is adjourned. Thank you.

PN158

MR HOULIHAN: Thank you.

ADJOURNED INDEFINITELY [3.52pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #H1 FATIGUE MANAGEMENT PLAN PN38