AG2003/6062, Transcript of Proceedings [2003] AIRCTrans 4879 (5 November 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DANGERFIELD

AG2003/6062

APPLICATION FOR CONCILIATION IN RESPECT OF
AGREEMENTS

Application under section 170NA(1) of the Act
by Transport Workers' Union of Australia re
the negotiation of a new enterprise bargaining
agreement

ADELAIDE

2.10 PM, MONDAY, 20 OCTOBER 2003

Continued from 28.8.03

PN7

THE COMMISSIONER: Now, quite a number of things have happened, I think, since we were last on the record. Is there a change of appearances there, Mr Duggen, were you here before?

PN8

MR DUGGEN: I was, sir.

PN9

THE COMMISSIONER: You were. Okay. Now, perhaps Mr Gallacher, you are going to give us a report as to where we are at?

PN10

MR GALLACHER: Yes, thanks, Commissioner. Basically, the scenario is that the company asked for an extension of a week. I believe they contacted the Commission, they certainly contacted myself. Given that they seemed imminent in putting a revised position to us, we let that go, so about the date we have on the letter. It is an undated letter - 3 October, sorry. About 3 October we were in possession of a copy of a letter to yourself or at least to your associate, a without prejudice offer and a copy of amended agreement.

PN11

We then took that to a meeting of our consultative or campaign committee on the following Monday and we reduced to writing essentially what our position would be. I could hand up a copy of that to the Commission.

PN12

THE COMMISSIONER: Thanks. This is the resolution, is it, of the campaign committee?

PN13

MR GALLACHER: Yes. It is. So Tuesday the 7th, Monday the 6th, whatever. The position is fairly clear there that the offer be referred to a vote of members and conducted by the AEC. The document be circulated after today's hearing and that we sought two hour information meetings at each depot, equal time between the company and the union to address the issues. The campaign committee referred the document to members without recommendation.

PN14

We forwarded that offer to the company and sought a fairly quick reply. They weren't able to come back to us by the 10th, but I'm in possession of a letter which is signed by Mr Baxter on the 13th and I will hand up a copy of that. I've only got the one copy, I left the others in the photocopier unfortunately, Commissioner.

PN15

THE COMMISSIONER: We can get extra copies.

PN16

MR GALLACHER: So essentially, we have got a process which is, you know, resolved to - we are agreed that the offer must go to the membership. The only point between us - and I would seek some clarification on this - in the without prejudice offer under 13, if all other terms are agreed we will remove the clause about AWA. It is in their without prejudice offer, but I struggle to understand how that could be actually achieved given the circulation and the voting of the document with it in it and then I will be curious about how we would remove it after if it was subsequently voted on in the affirmative.

PN17

So I just want a point of clarification on that from the employers in return, in respect of our without prejudice position. Apart from that, the committee was not in a position to recommend in favour of it, but everybody believes that this must go to the work-force and if you see the two sets of correspondence, Commissioner, the only point of odds I believe that we are at - and it is a reasonably hot issue - is that we sought information sessions at each depot two hours, an hour for the company, an hour for the union spokespeople and that was based on the premise that people may have considerable question or might have some other questions about what happens if it gets up or what happens if it does not get up.

PN18

We thought that it would be appropriate to have both company and union spokespeople available to answer those sorts of questions. That has not been agreed. We are now - well, firstly I may say, we are under a bit of pressure with that situation, even within our campaign committee. There was a view put that we should have a 4 hour stoppage and get people from all depots to a central spot, that we should then have full and frank discussion for and against the deal in circulation.

PN19

I wasn't convinced about this may be the appropriate or the best way to seek resolution of this matter, so I was able to sway the campaign committee at least in terms of the offer that we put to the company. But having said that, that has been knocked back, so we will be seeking here today, if the Commission has a mind to consider our position and that is that we do need a mechanism for resolving questions in respect to the agreement. A mechanism for resolving questions in respect to the what ifs. What if it gets up, what if it does not get up. That was the basis for the position put to the company.

PN20

So I will just simply state today that we are in a position where a number of our delegates are under pressure from some rank and file members to give them the time and date of a 4 hour stoppage whereby this document can be discussed to its fullest extent. I hasten to say that that wouldn't be a deliberative meeting in terms of voting on the document, but that is the situation as we have it, Commissioner, and I'm happy to answer any questions if I've missed anything.

PN21

THE COMMISSIONER: I think that looks fairly reasonable. Now, Mr Duggen or Mr Baxter, who is going to bring us up to date?

PN22

MR DUGGEN: Commissioner, we may well both contribute. Commissioner, I was unsure whether you wanted us to stand?

PN23

THE COMMISSIONER: It is fine.

PN24

MR DUGGEN: Commissioner, in relation to the point of the communication to employees or bus operators in relation to the agreement, can we just explain the company's position in relation to that. We certainly don't have any difficulty with explanation of the terms of the agreement. I think the issue is more about who pays for that more than anything else.

PN25

We are happy to run sessions outside of normal hours, whether that be during the week or on the weekend, explaining the terms of the agreement or the changes to the agreement that have been proposed, but we don't want to be in a position to make that compulsory such that there's an additional cost to the company to explain the terms of the agreement which may never be voted on in favour by the employees.

PN26

What we are putting forward is, it is simply an agreement for a vote. There's not going to be recommendation by the committee from the union about that particular agreement, so there's no guarantees that that agreement will indeed be voted upon in favour by the bus operators. I mean, this could be one of a series of votes that take place, so we are happy to do it in the manner that I've proposed. But we don't see it as appropriate for the company to be paying additional costs associated with what is being proposed in terms of the information sessions.

PN27

THE COMMISSIONER: What has been done previously, with the previous ballot?

PN28

MR GALLACHER: Commissioner, if I may be of assistance there. Previously they paid single time on Sundays at the football park out at Elizabeth - the rugby club. Those meetings were organised and paid for by the company and the company discussed and deliberated. I attended at least two of those meetings.

PN29

MR DUGGEN: Sir, can I indicate, I've been informed that our financial situation was different to what it was at that stage. It was a smaller operation that long ago and our financial position has certainly changed in the last years. Could I also indicate that from the company's perspective, in terms of the information sessions themselves, what we are really talking about is the changes to the agreement itself.

PN30

From the company's perspective it does not see that those changes are overly significant as such that there needs to be an extensive information session for the employees to have explained turn by turn the agreement itself. Because it is really only the changes that need to be discussed at this particular point in time.

PN31

THE COMMISSIONER: What about a shorter meeting?

PN32

MR DUGGEN: Again, I think it comes down to the issue of funding and again, the company is quite happy for these meetings or sessions to take place, but it does not see any reason why they should take place during working hours, as such that the company is required to pay for these meetings.

PN33

THE COMMISSIONER: All right. I might discuss that in a moment with you in private, I think. Anything further?

PN34

MR DUGGEN: Sir, short of you discussing that issue in a moment, perhaps there is another issue we will raise with you at that stage.

PN35

THE COMMISSIONER: Right. What about the situation with the AWAs that Mr Gallacher has sought clarification on?

PN36

MR DUGGEN: Sorry? I missed that, sir?

PN37

THE COMMISSIONER: The position with regard to AWAs. In your covering note you mention under point 13, AWAs:

PN38

If all other terms are agreed, will remove clause about AWAs.

PN39

But yet the draft agreement itself still has the provision for AWAs in there.

PN40

MR DUGGEN: One possible way of addressing that would be an explanatory memorandum that goes out to the employees. Now, what we've proposed doing in our letter, which is dated 13 October 2003, is we propose sending a letter to the bus operators. Now, that could be one issue that is discussed in that particular letter.

PN41

THE COMMISSIONER: What would you be saying in the letter?

PN42

MR DUGGEN: Well, in essence, that if the other terms are agreed that the AWA clause will be removed from the agreement. Now, once the - - -

PN43

THE COMMISSIONER: In other words, you are saying in effect, if the ballot gets across the line, then - I mean, the point is you are voting for the agreement. Now, if you vote for the agreement - you vote yes to the agreement - you can't then take something out that has already been voted on. I don't quite understand.

PN44

MR DUGGEN: Sir, perhaps if I can indicate that we could take it out for the purpose of the vote itself, such that the agreement does not contain that particular term. But it needs to be made clear that that would only be for the vote itself.

PN45

THE COMMISSIONER: Yes. Well, I think that is the way to do it. I mean, if it is not in the document that finally goes, that is fine, that is the document they are voting on. If that gets across well it is implemented in full. All right? Does that make sense, Mr Gallacher? The company is saying it will withdraw - what clause is it, by the way?

PN46

MR PRITCHARD: 7.2.

PN47

THE COMMISSIONER: 7.2. So is it the whole of 7.2? Is the company saying that it will delete the whole of clause 7.2 for the purpose of this going to the employees for a vote?

PN48

MR DUGGEN: Yes, sir.

PN49

THE COMMISSIONER: Yes. Does that clarify it, Mr Gallacher?

PN50

MR GALLACHER: Yes, it certainly does. I'm just curious as to how they handle it.

PN51

THE COMMISSIONER: Yes. I think that clarifies it from my point of view. Clause 7.2 will be deleted for the purposes of the ballot. Yes?

PN52

MR GALLACHER: Yes, sir. There's just one other point of clarification. I mean, I see in front of me the without prejudice and I read it as it states. 15 says:

PN53

5 minutes at the end of shift to walk to the depot and 5 minutes at the beginning of the shift to walk to the bus.

PN54

However, it is headed up: sign on and off times and meal breaks. Now, there is a lot of consternation or confusion about what that actually means. Now, I have a very clear understanding that it means sign on and off and meal breaks. I would just like to know, is that exactly what the company is saying, because there have been people saying that means sign on in the morning, sign on in the afternoon.

PN55

THE COMMISSIONER: What does the company say to that?

PN56

MR PRITCHARD: Well, it was agreed during the negotiation stage and that should be quite clear to the delegates because that is what they agreed. It was to do with the meal breaks for straight shifts, where at the moment, there's no time to leave the bus as such when it comes in. The meal break starts on arrival at the depot, it was agreed during the negotiations - this is way back in January or February when we first drafted this - that we allow 5 minutes for them at the start of that meal break and 5 minutes at the end of the straight shift meal breaks. It is fairly clear what it means.

PN57

THE COMMISSIONER: So it is only at meal breaks?

PN58

MR PRITCHARD: For the straight shift meal breaks.

PN59

THE COMMISSIONER: Yes.

PN60

MR GALLACHER: I understand that and it is clear to me. What I'm saying is that in this offer, it has been construed by some that this relates to a sign on and sign off claim outside meal breaks and also to your recommendations, Commissioner, which really does not, so we clarify that.

PN61

THE COMMISSIONER: Straight shift on - was there something else, did we say?

PN62

MR GALLACHER: The only other point of clarification was the meal breaks. We will:

PN63

The company will roster meal breaks with the aim of insuring that a bus operator has no more than two 90 minute meal breaks in a 5 day roster.

PN64

Some of the cynics in the ranks are saying that that means there will be three 87 minute meal breaks, given that they sort of are broken at 1 minute increments. So just for the purpose of clarification once again, if we could get a view from the company? This is the sort of debate - - -

PN65

MR DUGGEN: I think in relation to these issues, we understand the points that have been raised. I mean, perhaps the best way of going forward would be for the union to indicate in writing to the company what the issues are in terms of interpreting the issues from the without prejudice offer that has been put. Now, they are obviously the sort of issues that we would want to address in the letter that is going to go to bus operators explaining what the offer is all about.

PN66

Now, we obviously wish to have discussions with the union about clarifying those issues as well in terms of interpretation, because we want an agreement that is workable obviously. So perhaps if the union can put in writing any concerns they have in terms of the interpretation. I mean, as I read it - - -

PN67

THE COMMISSIONER: Well, another way might be to say are there any other points here at the moment that you want clarification on? Let us list them out right here and now.

PN68

MR GALLACHER: Those are the ones that we have got a list and we have debated and reduced to writing all of the concerns that we have with the agreement, but I don't want to go into that. I just want to go into the offer - clarify that. So that at least myself and all of the committee are able to answer with some certainty. Look, we will write to them and get that.

PN69

THE COMMISSIONER: All right, so there are those issues. I mean, I think we have clarified that about sign-on, sign-off times, meal break, only applicable to meal breaks. The 90 minutes - there's a bit of an issue there - well, the point 9, the two 90-minute meal breaks. There's an issue there that well, you are going to apply that to the letter of the law and take it right up to the edge and the third one is that clause 7.2 about AWAs being deleted. Now, there is nothing else at this point?

PN70

MR GALLACHER: No.

PN71

THE COMMISSIONER: Can I suggest - so it would seem to me that the company needs to clarify that in whatever letter goes to employees, but the thing that is outstanding at this stage is the issue of meetings, all right? I wonder if we can go off record for the time being and can I have a brief chat to the company, please, if I might?

OFF THE RECORD [2.27pm]

PN72

THE COMMISSIONER: Just to clarify where we are at following discussions with the parties this afternoon. First of all, the union is to write a letter within the next 24 hours to the company, seeking clarification on several aspects of the latest agreement proposal. Secondly, the company is to respond to that letter - respond to the union on the points raised in that letter within a further 24 hours. Thirdly, the Commission will issue a statement about the present situation and about the agreement and the options surrounding the agreement and I will do that by the close of business tomorrow. It is my intention that that statement accompany the agreement, when the agreement goes to the employees for a ballot.

PN73

Thirdly, it will be my recommendation from today that the parties continue discussions and attempt to co-operate on the holding of some sort of a brief explanatory meeting for the work-force in regard to these latest proposals. I will issue recommendations covering those points by close of business today and as I say, my statement on the agreement and the processes surrounding it, that will be issued in a separate document by the close of business tomorrow. Finally, liberty to apply to both parties at short notice, should they need to in the course of this matter going out to another vote. I think that probably covers things.

ADJOURNED INDEFINITELY [3.20pm]