C2003/4846, Transcript of Proceedings [2003] AIRCTrans 5066 (11 November 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 5125

A: 10.11.03

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

C2003/4846
C2003/4955

TRANSPORT WORKERS' (LONG DISTANCE
DRIVERS) AWARD 2000

TRANSPORT WORKERS AWARD 1998

Application pursuant to section 113 of the Act
by the Transport Workers' Union of Australia to
vary the above awards re increasing the minimum
payment under the supported wage clauses and
inserting of the test case standard provision
relating to "reasonable hours"

MELBOURNE

11.51 AM, MONDAY, 27 OCTOBER 2003

Continued from 18.9.03

THIS HEARING WAS CONDUCTED BY VIDEO CONFERENCE IN MELBOURNE

PN504

THE SENIOR DEPUTY PRESIDENT: The matter is listed today, as I understand it, to determine whether or not there ought to be an extended adjournment in the matter. Has there been any further discussions between the parties?

PN505

MS TISDALE: There has, your Honour, between a number of the parties, and I think I would be correct in saying that we feel there might be a way to resolve this without the matter needing to be arbitrated. I have had some discussions with Mr Anderson this morning, and I understand that John Allen of the Union has also had some discussions with Mr Anderson as a way of trying to get to the nuts and bolts of the issue in terms of what the legitimate concerns of the employer representatives are, that are motivating their attempt to have this matter put off.

PN506

And I think that we have identified those issues as the concern that this new award right may be able to be used in practice in a way that might jeopardise the operations of the business, particularly we are talking about long distance operations, where schedules and so on are fixed and commitments have been made and an employee might at the last moment kind of jump up and say, "No, I am not going to do that overtime, or that trip," which would put the employer to a significant disadvantage.

PN507

It is our understanding that the Full Bench's decision and the clause that they crafted wouldn't really allow that situation to arise, but we are prepared to sit down with the employers and perhaps tinker with the clause a little bit to make the sentiments behind the Full Bench's decision more overt and make it more clear that not only the personal circumstances of the employee that need to be taken into account, but also the needs of the business and the notice that the employer has given the employee of the overtime, whether that is in the form or a roster or some other form.

PN508

But all of those matters need to be taken into account and balanced in a way that comes out to something that is reasonable in all of the circumstances. So we are happy to have that - some more discussions with the employer representatives and see if we can allay their concerns, either by putting some of these matters on transcript or by tinkering with the clause a little bit. Although we would be certain - the Union would certainly be happy if that was something that your Honour wanted to assist us in and perhaps we could make some progress on today or elsewise perhaps a short adjournment for the parties to attempt to do that amongst themselves.

PN509

THE SENIOR DEPUTY PRESIDENT: Yes, all right. What do you say, Mr Ryan?

PN510

MR RYAN: Thank you, your Honour. I have no objection to sitting down and seeing if we can't nut some words out that more accurately deal with the concerns of ARTIO and the other employers. I have been involved in some of the discussions, although principally Mr Anderson from NATROAD was more directly involved in the discussions with the Federal Secretary of the union. So I would probably leave it there and let Mr Anderson advise the Commission of his understanding of those discussions, but ARTIO would certainly not have any objection to seeking if we can nut something out that reflects better the practices in the transport industry, if your Honour pleases.

PN511

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Ryan. Mr Anderson, what do you say about it?

PN512

MR ANDERSON: Thank you, your Honour. Yes, indeed. Discussions did occur with Mr Allan when he was in Canberra last week, and Ms Tisdale and myself had quite a lengthy discussion this morning. I think it would be true to say, your Honour, that we - NATROAD didn't take too much of a backward step about our concerns as to how this clause might overlay the current process in place, going to driver fatigue and driver hours and a new regime around all of that.

PN513

Nevertheless, one of our major concerns was accurately reflected by Ms Tisdale, and that is the potential that could occur in the destruction of operations by the ad hoc invoking of the provision should it be in the award, and we are very happy to engage in discussions around that matter; and again I confirm the outcome of those discussions were accurately reflected by Ms Tisdale.

PN514

THE SENIOR DEPUTY PRESIDENT: Mr Shearer?

PN515

MR SHEARER: Thank you, your Honour. I assume standing is all right? I am not sure if I am cutting my own head off by standing.

PN516

THE SENIOR DEPUTY PRESIDENT: Where you are I can't see you, Mr Shearer. Perhaps you might want to sit down. That might be better.

PN517

MR SHEARER: There you go, your Honour. Thank you. I learnt of the discussions about an hour ago when Mr Anderson paid me the courtesy of calling me and briefing me. I have not had the opportunity to discuss it with any of our members or the board, however on the surface of it, as we have said in our contentions and previously before you, we are not opposed to the principle behind the TWUs application.

PN518

It is a question of how it is applied and whether or not it cuts across the operations and puts a sub-set of controls in as distinct from the driving and its law and regulations; and I understand that you have received, both from SARTA and from NATROADS, probably four or five inches thick of paper outlining for your all of the considerations going on with the NRTC and in the industry.

PN519

As Mr Anderson said, we are certainly firmly of the view that we must not cut across the driving hours law and how it will operate. We would be quite happy to have discussions, and be involved in those discussions, and if there is a way through we certainly wouldn't stand in the way.

PN520

THE SENIOR DEPUTY PRESIDENT: All right. Well, look, I will go off the record in a minute to have some discussions with the parties about the, perhaps the way forward. But I will mark first of all the contentions.

EXHIBIT #TWU3 TWU CONTENTIONS

EXHIBIT #NARFI2 NATROAD SUBMISSIONS

EXHIBIT #SARTA2 SARTA SUBMISSIONS

PN521

THE SENIOR DEPUTY PRESIDENT: Does anybody else - Ms Tisdale, do you want to say anything on the record, before I go off the record?

PN522

MS TISDALE: No, your Honour.

PN523

THE SENIOR DEPUTY PRESIDENT: Mr Ryan?

PN524

MR RYAN: Simply that you might need to mark the last sheet that I sent in on behalf of ARTIO.

PN525

THE SENIOR DEPUTY PRESIDENT: I don't think I have it, Mr Ryan.

PN526

MR RYAN: It was faxed in at 5 pm on 20 October in accordance with your earlier directions. There is a copy there for the file. I assume, David, you received that last Monday, didn't you?

PN527

MR ANDERSON: What is that, Paul? I am sorry.

PN528

MR RYAN: A letter from me to the Senior Deputy President, just supporting the - relying on the material that you filed and seeking - - -

PN529

MR RYAN: Yes. Yes, we did. Yes, we have that letter. Yes.

PN530

MR ANDERSON: And, Steve, did you receive that?

PN531

THE SENIOR DEPUTY PRESIDENT: Yes. Well, all right. So long as - - -

PN532

MR SHEARER: Yes, we did.

PN533

THE SENIOR DEPUTY PRESIDENT: I have a copy now.

EXHIBIT #SIP2 ARTIO DOCUMENT

PN534

THE SENIOR DEPUTY PRESIDENT: All right. Mr Anderson, did you want to say anything before I go off the record?

PN535

MR ANDERSON: If you please, your Honour, I may have missed something, but NATROAD also submitted an outline of contentions.

PN536

THE SENIOR DEPUTY PRESIDENT: Yes. That was earlier on, wasn't it?

PN537

MR ANDERSON: It is dated, your Honour, 20 October.

PN538

MR RYAN: I assume that your NARFI2 included that, plus all the other papers.

PN539

THE SENIOR DEPUTY PRESIDENT: Well, I think it does. I think that is included in NARFI2.

PN540

MR ANDERSON: Okay. That is fine. Thank you.

PN541

THE SENIOR DEPUTY PRESIDENT: Yes. All right. Mr Shearer, did you want to say anything before I go off the record?

PN542

MR SHEARER: Just a question, your Honour. When you marked the contentions, I couldn't hear you when you marked the TWUs, and I have not received a copy of the TWUs contentions.

PN543

THE SENIOR DEPUTY PRESIDENT: Yes. All right. The TWU is TWU3, and we will arrange for Ms Tisdale to send you a copy of that in due course.

PN544

MR SHEARER: Thank you, your Honour.

PN545

THE SENIOR DEPUTY PRESIDENT: All right. Now, we will go off the record for a while. Thank you.

SHORT ADJOURNMENT [12.03pm]

RESUMED [12.11pm]

PN546

THE SENIOR DEPUTY PRESIDENT: During the short adjournment I have discussed with the parties the ways in which this matter might be further progressed, and it has been decided that the parties will over the course of the next week consider alternatives to modify the test case standard, and I will adjourn the matter until Wednesday, 5 November at 11 am in Canberra. Ms Tisdale, did you want to say anything else at this stage?

PN547

MS TISDALE: No, thank you, your Honour.

PN548

THE SENIOR DEPUTY PRESIDENT: No. Mr Ryan?

PN549

MR RYAN: No, your Honour.

PN550

THE SENIOR DEPUTY PRESIDENT: Mr Anderson?

PN551

MR ANDERSON: No, your Honour.

PN552

THE SENIOR DEPUTY PRESIDENT: And Mr Shearer?

PN553

MR SHEARER: No, thank you, your Honour.

PN554

THE SENIOR DEPUTY PRESIDENT: No. Very well. I will await, by the way, from each of the parties their draft proposed clause, if they are able to draft anything before next Wednesday, but failing that we will discuss the matter next Wednesday in conference. The matter is adjourned.

ADJOURNED UNTIL WEDNESDAY, 5 NOVEMBER 2003 [12.13pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #TWU3 TWU CONTENTIONS PN521
EXHIBIT #NARFI2 NATROAD SUBMISSIONS PN521
EXHIBIT #SARTA2 SARTA SUBMISSIONS PN521
EXHIBIT #SIP2 ARTIO DOCUMENT PN534