C2003/5602, Transcript of Proceedings [2003] AIRCTrans 4302 (30 September 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 4666

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

C2003/5602

TRANSPORT WORKERS UNION
OF AUSTRALIA

and

TRONCS CARRYING SERVICE

Notification pursuant to section 99 of the
Act of a dispute re flat hourly rates and
working rates

MELBOURNE

11.21 AM, THURSDAY, 11 SEPTEMBER 2003

THIS HEARING WAS CONDUCTED BY VIDEO CONFERENCE IN MELBOURNE

PN1

MR D. PRIOR: I appear on behalf of the Transport Workers Union of Australia, Queensland Branch, together with MR P. BIAGINI, a TWU organiser for this site.

PN2

MR A. TOBIN: I seek leave to appear for Troncs Carrying Service, together with MR J. STEVENSON, a director of that company.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Prior, what do you say about Mr Tobin's application for leave?

PN4

MR PRIOR: Senior Deputy President, we have no objection to his appearance in these proceedings.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Mr Tobin, leave is granted.

PN6

MR TOBIN: Thank you, your Honour.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Prior, what is the matter all about?

PN8

MR PRIOR: Thank you, Senior Deputy President. This matter comes about by way of notification on Wednesday, 27 August, and it talks in the section 99 dispute notification about an industrial dispute which has occurred in relation to allegations of award breaches resulting from the introduction of flat hourly rates at Troncs. In addition to that we have received complaints from members about excessive working hours, which would appear on the face of the investigations that we have conducted, to be breaching rest breaks in relation to the Transport Workers Award 1998.

PN9

We understand that Troncs intention was to implement a flat hourly rate, and our instructions are that that flat hourly rate, in terms of when it was introduced, was, on its face, without consultation with employees.

PN10

THE SENIOR DEPUTY PRESIDENT: When was it introduced?

PN11

MR PRIOR: It has been in for some time, I understand, and perhaps the company can illuminate what the time period is in relation to that flat hourly rate. We have had discussions with the company since the listing of this matter last Wednesday week, and perhaps the TWU organiser appropriate with that workplace might like to you through in relation to what progress has been reached.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Mr Biagini, is it?

PN13

MR BIAGINI: Yes, that is right. We had a meeting with one of the owners of the company, Joe Stevenson, myself and the State Secretary on Monday.

PN14

THE SENIOR DEPUTY PRESIDENT: Can I just interrupt for a moment. Did you want this to go on the record, or would you rather deal with this in conference?

PN15

MR PRIOR: Well, perhaps we might just make brief comments on the record, then break straight into conference.

PN16

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Go ahead.

PN17

MR BIAGINI: Yes, we had some discussions on Monday about our concerns with the flat rate and the long hours that people are working. Our view is that the company has no certified agreement or AWA, it is just a tick in the box arrangement, do you want the award or do you want the flat rate? Many of the employees in the workplace are casuals, so they just go along with what is accepted. The company has come back to us and said they will review they pay structure they have got and they would come back to us next week. We still state that as far as we are concerned they should be paid as per the award until such time as they do it properly with a consultative committee and do a certified agreement, or any other legal document.

PN18

And with the flat rate that they pay, with people working averages of 55 up to 75 hours per week, they are disadvantaged to the award, and the flat rate encourages people to work long hours, and the 10 hour penalty rate for not having the 10 hour break between shifts, that has been breached with the flat hourly rate as well.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes. Anything else?

PN20

MR BIAGINI: No. That will do for now.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Prior, do you want to say anything more?

PN22

MR PRIOR: No, Senior Deputy President. That very well brings us up to date in relation to this matter.

PN23

THE SENIOR DEPUTY PRESIDENT: All right. Mr Tobin, did you want to say anything on the record?

PN24

MR TOBIN: Only, your Honour, that the dispute provisions of the award haven't been observed, and the first time this was brought to the employer's attention was in the dispute notification. Following receipt of the notification, Mr Stevenson contacted the union. He was overseas at the time, but upon his return, or the day after, he contacted the union to convene a meeting to find out what it is all about.

PN25

In terms of responding to the issues, our position is that no employee has been disadvantaged against their entitlements under the award, and that has been evidenced by a recent time and wages inspection undertaken by the union in the case of two particular test employees. That did reveal one underpayment over a period of a year of $3000, and one overpayment of $2000, and the underpayment was immediately rectified. But it has not been pursued since then, the issue of non award compliance has not been pursued since then until this notification.

PN26

THE SENIOR DEPUTY PRESIDENT: Do you agree that there were discussions last Monday?

PN27

MR TOBIN: Definitely, and those were initiated by Mr Stevenson.

PN28

THE SENIOR DEPUTY PRESIDENT: When, after the notice of dispute was given?

PN29

MR TOBIN: Yes. The dispute notice, your Honour, was dated and received, I think, on about 27 August.

PN30

THE SENIOR DEPUTY PRESIDENT: But it was only filed on 8 September, so far as I can see.

PN31

MR TOBIN: Well, we got it be fax on 27 August. It is a copy of what went to the Registry, I assume. Mr Stevenson was in Sweden, he got back on the Thursday last week, he contacted the union and had a meeting with them on Friday - sorry, Monday.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes. Well, the notice was only lodged in the Commission on 8 September.

PN33

MR PRIOR: Senior Deputy President, perhaps I can assist the parties in relation to that. We faxed it to the Commission on the afternoon of Wednesday, 27 August. I believe that the Commission had a period after that of some high turnover in terms of matters. When I came back to investigate what was happening in relation to days and dates, the Brisbane Registry noted that at that point in time they couldn't locate the original, so I sent over another copy of the dispute notification for them.

PN34

THE SENIOR DEPUTY PRESIDENT: All right.

PN35

MR PRIOR: Just to assist also in relation to the life of this dispute, we have correspondence dated 16 July 2002, which pretty well reiterates what appears in the dispute notification. Sir, just by way of brief response, we would certainly say that the matter has been discussed and been on foot for at least 12 months.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Does anybody else want to say anything else on the record before I adjourn into conference?

PN37

MR TOBIN: I am instructed to make one other point, your Honour, and that relates to the flat hourly rate. What seems to us, with our limited information, to have brought this dispute here today, is that on 19 August, Troncs settled the acquisition of another business, another container business as a result of which it employed approximately 10 new drivers employed in the business that was purchased. Now, those employees were previously paid as per the award. There was consultation with them when they were offered employment on the day after settlement, 20 August, about the change to the pay structure. As for the actual pay structure itself, our position is that they are not disadvantaged.

PN38

In terms of excessive working hours, well, we don't know what the specifics of that allegation is, or the specifics are. There has been a very hectic time at the end of August, the last two weeks, which might have resulted in some unusual blitz of hours, but we say they are exceptional. Apart from that, we have asked the union for information about the proposed terms of the certified agreement, and that was confirmed in writing only yesterday, and we are waiting for that material. When we get it we will be happy to talk to them about wages, advantages, disadvantages, and so forth.

PN39

THE SENIOR DEPUTY PRESIDENT: Well, do you have any objection to going into conference now to talk about these matters?

PN40

MR TOBIN: No, not at all.

PN41

THE SENIOR DEPUTY PRESIDENT: No. All right. Anything else you want to say before I adjourn, Mr Prior?

PN42

MR PRIOR: Nothing further, Senior Deputy President.

PN43

THE SENIOR DEPUTY PRESIDENT: No. Very well. I will adjourn this matter into conference.

NO FURTHER PROCEEDINGS RECORDED