C2003/5350, Transcript of Proceedings [2003] AIRCTrans 4300 (30 September 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 4662

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER MANSFIELD

C2003/5350

AUSTRALIAN MUNICIPAL, ADMINISTRATIVE,
CLERICAL AND SERVICES UNION - VICTORIAN
AUTHORITIES AND SERVICES BRANCH

and

NATIONAL EXPRESS GROUP AUSTRALIA
(V/LINE PASSENGER) PTY LTD

Notification pursuant to section 99 of
the Act of a dispute re consultation
and negotiations regarding Spencer
Street Allowance

MELBOURNE

2.53 PM, THURSDAY, 11 SEPTEMBER 2003

PN1

MR D. HARRIS: I appear on behalf of the ASU with MR M. BARTLEY and MR J. VANDERHORST.

PN2

MR L. HOCKING: I appear on behalf of National Express Group Australia (V/Line Passenger) Pty Ltd trading as V/Line with MR G. ARTHUR and MR G. WILSON

PN3

THE COMMISSIONER: Now, typical of section 99 notifications it is rather cryptic as to what the problem is. It concerns consultation and negotiations regarding Spencer Street Station Allowance and which doesn't, I must say, give me a great understanding of what the problem is. So, Mr Harris, could I turn to you to give us a general indication of what the problem is. It may be after I have heard a general outline from yourself and Mr Hocking we could go into conference in regard to this matter before coming back on the record. But what I am looking for from you at the moment is an outline of the problem, an outline of what you want the Commission to do about it and that is about all I need at this stage.

PN4

Then I will turn to Mr Hocking and get the employer view as to its response in broad terms to what you say is the problem and what you say is the desirable answer. So, Mr Harris, first, please.

PN5

MR HARRIS: Thank you, Commissioner. Yes, the issue is to do with construction work at the Spencer Street Rail Station area and a site disability allowance that has been accorded there as a result of, I guess, negotiations between the Rail, Tram and Bus union and the employer, with the assistance of the Commission and in particular Senior Deputy President Lacy and a recommendation - - -

PN6

THE COMMISSIONER: So there is a site allowance?

PN7

MR HARRIS: Yes, it is a site allowance for construction workers.

PN8

THE COMMISSIONER: There is a site allowance, yes.

PN9

MR HARRIS: There is a site allowance there in line with your comments before. That is the history - that is the matter at hand. What we would seek the Commission - what our concerns are with that matter is that the ASU with coverage of employees and members in that area were not consulted with regard to the determinations of that allowance and it does affect our members there. And in relation to what we are seeking from the Commission we seek the Commission's assistance today and hopefully bring the parties together to discuss the matter, how it would apply to an area there which we believe has been overlooked with regards to that allowance.

PN10

THE COMMISSIONER: Now, before you sit down, Mr Harris, SDP Lacy assisted the parties - not necessarily the ASU, but certainly the employer - in regard to the establishment of a site allowance during construction work which is going on at Spencer Street Station?

PN11

MR HARRIS: Yes.

PN12

THE COMMISSIONER: That has been implemented but what the ASU is saying is that the ASU wasn't adequately consulted as part of that process - this is what I am hearing you say - and it appears as though you have some members in the Spencer Street Station area who you may believe should be entitled to receive the site allowance but are currently not receiving it. Is that basically the problem?

PN13

MR HARRIS: They are receiving - there are three definitions of the site allowance as in high, medium and low and we believe our members because they - because we weren't involved and they weren't consulted as well, they haven't been accorded the proper - - -

PN14

THE COMMISSIONER: And what are they receiving at the moment?

PN15

MR HARRIS: They are receiving the medium allowance.

PN16

THE COMMISSIONER: The medium, and you believe they should receive the low or the high?

PN17

MR HARRIS: The high.

PN18

THE COMMISSIONER: The high. Yes, I thought that might be the case.

PN19

MR HARRIS: I also add - sorry, Commissioner - that I have consulted with Brian Boyd, who has the role of convening the rail unions from Victoria Trades Hall Council who bears out that - makes it clear that, yes, they did overlook the ASU being party to the original negotiations and he has spoken with the Rail, Tram and Bus Union, who are quite happy for me to proceed with this matter that does not impact upon the agreed ..... so far.

PN20

THE COMMISSIONER: Fine, Mr Harris. And how many members are involved generally?

PN21

MR HARRIS: There would be five.

PN22

THE COMMISSIONER: Round five.

PN23

MR HARRIS: Eight - sorry, eight.

PN24

THE COMMISSIONER: Five to eight?

PN25

MR HARRIS: Yes.

PN26

THE COMMISSIONER: Eight members.

PN27

MR HARRIS: Yes.

PN28

THE COMMISSIONER: And that is the number in totality who would be eligible to receive this higher level of allowance if it turned out that way?

PN29

MR HARRIS: Yes.

PN30

THE COMMISSIONER: And what is the difference in the rate of allowance between the medium and the high, please?

PN31

MR HARRIS: I will seek assistance. 62 cents per hour extra.

PN32

THE COMMISSIONER: 62 cents per hour over and above the rate that is there at the moment?

PN33

MR HARRIS: Yes.

PN34

THE COMMISSIONER: The medium rate.

PN35

MR HARRIS: Yes.

PN36

THE COMMISSIONER: Good. Okay, thank you, Mr Harris. Sorry, one more question. How long is the construction work likely to take at Spencer Street Station? It is only for the duration of the construction work I expect we are talking about.

PN37

MR HARRIS: I will need the advice of my members.

PN38

MR HOCKING: Commissioner, if I could assist. Senior Deputy President Lacy's order states that the allowance payment should commence on 1 February of this year and conclude on 30 June 2005 and that subject to a review should the expected completion date not be met.

PN39

THE COMMISSIONER: Yes.

PN40

MR HOCKING: If the Commission pleases.

PN41

THE COMMISSIONER: Or if it occurs earlier I expect.

PN42

MR HOCKING: Indeed, Commissioner.

PN43

THE COMMISSIONER: Sure. Good. Well, Mr Hocking, you have heard an outline from Mr Harris as to the problem. He believes, and he is stating on behalf of the members concerned, that firstly the interests of the ASU and its members in this matter were not adequately taken account of and certainly they weren't consulted on the way through and he explained the circumstances of that. But beyond that, of the three levels of allowance that have been set down the five members - sorry, the eight members concerned have been placed on the medium level and they should be placed on the high level.

PN44

Could you give us an outline of why management believes that the current level is appropriate and is it an issue which is able to be further discussed between the parties, or is it a matter where management has a very firm view and is not in a position to say that?

PN45

MR HOCKING: Certainly, Commissioner. If I could perhaps answer your questions by giving a little more detail to the background that has been given by Mr Harris thus far.

PN46

[3.01pm]

PN47

Commissioner, this is about - the allowance issue arose over the redevelopment of the Spencer Street Railway Station, which is an approximately $300 million project that is being undertaken by the Spencer Street Station Authority on behalf of the government, really, at large.

PN48

THE COMMISSIONER: Long overdue, Mr Hocking.

PN49

MR HOCKING: Many would agree, many would agree, Commissioner.

PN50

THE COMMISSIONER: And I am sure it will be a magnificent structure when you finish.

PN51

MR HOCKING: And I have seen the models and indeed it will be magnificent when it is completed, and of great benefit to all concerned - the employees, the travelling public and so on. Employees of a number of different organisations other than V/Line are affected by the construction works, and indeed there is an award whose name escapes me for the moment, being the Public Transport Corporation (Disruption to Work) Award 1990, which deals with matters of this nature.

PN52

Claims were made earlier this year by the VTHC on behalf of affected unions, on behalf of employees from a number of different organisations. Negotiations were carried out, and they did not - they were not negotiated to a conclusion. The matter was ultimately brought before the Commission by section 9 notification by the Rail, Tram and Bus Union and I believe others earlier this year, and what occurred, Commissioner, was a series of hearings before Senior Deputy President Lacy on 28, 29 and 30 May and 2, 3, 4 June.

PN53

And involved in those hearings in the Commission were several site inspections by the Senior Deputy President at the Spencer Street site.

PN54

THE COMMISSIONER: Did he get to drive a train, Mr Hocking?

PN55

MR HOCKING: I don't believe he did, I don't believe he did, Commissioner, although I do recall him commenting at one stage that he couldn't hear the piling machine on the construction site because a train had gone past.

PN56

THE COMMISSIONER: I see.

PN57

MR HOCKING: However, I am sure the Senior Deputy President took all those matters into account when he finally reached his decision.

PN58

THE COMMISSIONER: He is a very wise Deputy President. He is actually my panel head at the moment, so I can't make any - - -

PN59

MR HOCKING: Indeed he is, Commissioner. And perhaps it might assist the Commission if I could hand up a copy of two documents, in fact, one being print PR 933206, dated 18 June, which is Senior Deputy President Lacy's recommendation - - -

PN60

THE COMMISSIONER: So it was a recommendation that he issued at the end of the process?

PN61

MR HOCKING: Yes, indeed it was, Commissioner. And following that, on 4 August, he issued orders flowing from that decision, or that recommendation. And if I could tender a copy of that for the Commission's benefit as well. Commissioner, the recommendation document one could treat as a decision, I suppose. It is fairly lengthy, and I don't intend to take you through it at length, I don't think that is necessary.

PN62

But what it does is it sets out the background of the matter, and at about page 3 sets out the three, if you like, levels of classification of certain groups of employees subject to the, if you like, disabilities or disruption associated with the construction works, and if I could refer you, Commissioner, to the order dated 4 August issued by the Senior Deputy President, he reiterates those three work group categories, at page 2 - work groups in the high category and lists then in the medium category and then the low category.

PN63

And above that, in the schedule, sets out the appropriate hourly and shift rates of disability to apply to those categories of employees, and I confirm Mr Harris' submission to you before that the difference between the medium and high category is 60 cents per hour, as you can see from that schedule. And I should add that in those five or six days of hearing and site visits, the Senior Deputy President dealt with these matters in a thorough manner.

PN64

They were exhaustively examined and dealt with, although I should mention, by way or completeness, that in effect the Senior Deputy President one could say arbitrated the quantums appearing in point 4 of his order, and it would probably be fair to describe the process as he facilitated agreement between the parties with respect to items 4.1, 4.2 and 4.3, being the respective work groups.

PN65

Subsequent to that, Mr Harris at the ASU has written to V/Line on several occasions indicating the ASU's opposition, or dissatisfaction with the outcome of the matter, and if I could tender a copy of a letter in response to Mr Harris' earlier correspondence on that matter, which I think, Commissioner, succinctly summarises the issues that Mr Harris has raised in his submission.

PN66

If one can note the first paragraph, Commissioner, you can see it is in response to a letter from the ASU dated 4 July, and it deals with the questions that Mr Harris has raised, namely that it is ASU's belief that the cars office employees should be in the high category rather than the medium category, as set out in the Senior Deputy President's decision, and it goes in the second and third paragraphs to respond to Mr Harris' claim that the ASU weren't properly consulted or advised of the process.

PN67

V/Line stands by its proposition as contained in the letter that ASU should have been advised by the VTHC, it is V/Line's understanding that appropriate correspondence was put forward, and that ASU didn't appear at the hearings and site inspections and the proceedings before Senior Deputy President Lacy for matters which we were unaware of. Mr Harris, of course, says that they weren't advised, and that is a matter of some difference between the parties, and I don't think there is sufficient evidence to decide that matter either way.

PN68

And I don't think it is necessarily helpful that we go into that. Nonetheless, the ASU weren't represented at those hearings. There is further correspondence between the parties, Commissioner, that I don't intend to hand up, because it really reiterates that basic disagreement.

PN69

THE COMMISSIONER: So what you are saying, Mr Hocking, is that the cars office, where I take it the five individuals who - or the eight individuals who make up the submissions of Mr Harris are employed, the cars office was part of the process of inspections and consideration during - - -

PN70

MR HOCKING: Indeed.

PN71

THE COMMISSIONER: - - - SDP Lacy's determination of this matter, and he has, after looking at all the circumstances, placed the cars office in the medium impact category, not the high impact category. And basically management is saying you stand by the decision of SDP Lacy.

PN72

MR HOCKING: We do, excepting that, Commissioner, for the sake of completeness and accuracy, I reiterate what I said earlier, that Senior Deputy President Lacy's consideration of the matter was really in two parts. To some extent he was facilitating or conciliating, if you like, between the parties on the categorisation of certain groups of employees, and in the second instance he was effectively arbitrating on it with respect to the quantum of allowance, and I think that differentiation might be an important aspect of this particular matter.

PN73

THE COMMISSIONER: Yes.

PN74

MR HOCKING: However, Commissioner, we say that the process was comprehensive, thorough and robust, and that it turned up with a certain outcome. We acknowledge ASU's submissions to you today that they weren't represented, and I have gone to the matter of why that may or may not have been the case, and what circumstances went to that. Commissioner, I think at this juncture, I have probably provided you with - I hope I have provided you with sufficient background to the matter.

PN75

And I return to the opening remarks you made that it might be appropriate to convene - to move into conference to discuss the matter in further detail, and we would be happy to follow that course. If the Commission pleases.

PN76

THE COMMISSIONER: Good. Thank you, Mr Hocking. We will do that. We will go off the record into conference to discuss the matter at this stage. We may go back on the record and deal with it more substantially at a later time this afternoon.

NO FURTHER PROCEEDINGS RECORDED