AG2003/9553, Transcript of Proceedings [2003] AIRCTrans 5107 (19 November 2003)

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TRANSCRIPT OF PROCEEDINGS


AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

AG2003/9553

APPLICATION FOR CERTIFICATION OF AGREEMENT

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

CANBERRA

3.59 PM, WEDNESDAY, 5 NOVEMBER 2003

PN1

THE SENIOR DEPUTY PRESIDENT: Good afternoon, could I have appearances, please?

PN2

MR P. SCHULZ: I seek leave to appear for Sutherland's Transport Pty Limited, and appearing with me is MR A. HERITAGE appearing as the employee representative and MR C. SUTHERLAND, the company director.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN4

MR SCHULZ: Thank you, Senior Deputy President.

PN5

THE SENIOR DEPUTY PRESIDENT: Sorry, you're Mr - - -

PN6

MR SCHULZ: Peter Schulz.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Schulz. There is no objection. There is no other party here, so leave is granted.

PN8

MR SCHULZ: Thank you, Senior Deputy President. Before addressing the agreement, itself, I seek leave to raise with you some issues that have been raised in previous hearings and that relate to the drafting of agreements that have recently been certified by the Commission. These same issues relate to clauses contained in this agreement now before you. As a consequence of these other hearings, the matters that have been raised have now been made clear to me, and the company's concerned with a resolution and the certification of those agreements reached through the giving of undertakings that are provided for in section 170LV of the Act.

PN9

Clearly, this has been a matter of concern to the Commission, and to ourselves, and one from which we, hopefully, have learned a great deal on the recent weeks. If it is appropriate - and without pre-empting your Honour's view of the hearing - I seek leave to hand up to your Honour a letter provided on behalf of the company that covers those issues that have been raised on these previous occasions.

PN10

THE SENIOR DEPUTY PRESIDENT: Yes. I will mark the letter addressed to myself from Arthur Spottiswood, dated 4 November as exhibit S1.

EXHIBIT #S1 LETTER ADDRESSED TO SENIOR DEPUTY PRESIDENT LACY FROM ARTHUR SPOTTISWOOD, DATED 04/11/2003

PN11

MR SCHULZ: Thank you, Senior Deputy President.

PN12

THE SENIOR DEPUTY PRESIDENT: I will just read that for the moment.

PN13

MR SCHULZ: Yes.

PN14

THE SENIOR DEPUTY PRESIDENT: I do not understand the reference to clause 51?

PN15

MR SCHULZ: Sorry, Senior Deputy President?

PN16

THE SENIOR DEPUTY PRESIDENT: I do not understand the reference to clause 51 on the second page of the letter.

PN17

MR SCHULZ: It was deemed in other hearings, Senior Deputy President, that clause 51, as it stood, would be ambiguous and serve no purpose without reference to a section of the Act.

PN18

THE SENIOR DEPUTY PRESIDENT: Yes. But where do you say the words that are in - are you saying, is it, the words in quotes or in - - -

PN19

MR SCHULZ: Are to be added to that clause.

PN20

THE SENIOR DEPUTY PRESIDENT: What, to that heading, or to the 51.1?

PN21

MR SCHULZ: 51.1.

PN22

THE SENIOR DEPUTY PRESIDENT: I see, yes, all right, yes. That clause just states some variation to amendments to the alphabetical index at the back as well, not that that means - - -

PN23

MR SCHULZ: That is correct. They would all need to be amended, your Honour.

PN24

THE SENIOR DEPUTY PRESIDENT: Right. The clause numbering would have to be amended too.

PN25

MR SCHULZ: Sorry, Senior Deputy President.

PN26

THE SENIOR DEPUTY PRESIDENT: The clause numbering will have to be amended.

PN27

MR SCHULZ: Yes, that is true, yes.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Did you want to say anything else about it, at this stage?

PN29

MR SCHULZ: Not at this stage, unless you have specific questions.

PN30

THE SENIOR DEPUTY PRESIDENT: I have some questions I want to ask you. It mainly goes to the question of the no disadvantage test.

PN31

MR SCHULZ: Yes.

PN32

THE SENIOR DEPUTY PRESIDENT: There are a couple of issues, first of all, arising out of the stat dec. At 1.4 - clause 1.4 - of the statutory declaration. I take it, as a result that there be no answer to that question that it is - it is not part of a single business, but a whole business.

PN33

MR SCHULZ: A whole business, yes.

PN34

THE SENIOR DEPUTY PRESIDENT: Yes. The - that's right, I see that there. Clause 4.2, I take it that "No" that's there, is the "No" that has been put in by the employer, is that right?

PN35

MR SCHULZ: "No", that's correct, yes.

PN36

THE SENIOR DEPUTY PRESIDENT: Clause 6.2, that says that a section 170XF application was made to determine the appropriate clerical award on 2 September 2003 and it refers to that - I take it that Commissioner Larkin there determined the appropriate award?

PN37

MR SCHULZ: That's correct.

PN38

THE SENIOR DEPUTY PRESIDENT: Which award was that, that was determined?

PN39

MR SCHULZ: The State Clerical Award.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Now, then we come to the issues about a disadvantage, clause 6.5 says that there are better casual conditions from line haul drivers. What proportion of the drivers are line haul drivers and what proportion are not?

PN41

MR SCHULZ: I might just defer to the company director if that's okay?

PN42

THE SENIOR DEPUTY PRESIDENT: Yes.

PN43

MR C. SUTHERLAND: At present, your Honour, we have about 40 per cent line haul and 60 per cent are local distribution drivers out of Cootamundra. They're casuals.

PN44

THE SENIOR DEPUTY PRESIDENT: Yes.

PN45

MR SUTHERLAND: Casuals is very seasonal at present, none at the moment.

PN46

THE SENIOR DEPUTY PRESIDENT: Does the clerical award apply to them?

PN47

MR SUTHERLAND: To?

PN48

MR SCHULZ: The line haul drivers.

PN49

THE SENIOR DEPUTY PRESIDENT: Drivers, line haul drivers?

PN50

MR SUTHERLAND: No.

PN51

MR SCHULZ: No.

PN52

THE SENIOR DEPUTY PRESIDENT: Well, when it says here, "better causal conditions for line haul drivers", what's the relevance of that?

PN53

MR SCHULZ: That the rates are higher when they're payable to casual drivers. Company's paying over the State Award.

PN54

THE SENIOR DEPUTY PRESIDENT: Yes. That's in the Clerical Award? Sorry, over the State Transport Industry Award, si that right?

PN55

MR SCHULZ: That's right.

PN56

THE SENIOR DEPUTY PRESIDENT: Well, has the Transport Industry Award been determined as a - - -

PN57

MR SCHULZ: It's a common rule, your Honour, so it applies to all drivers in the State of New South Wales.

PN58

THE SENIOR DEPUTY PRESIDENT: And Canberra, ACT?

PN59

MR SCHULZ: No, ACT has its own award, your Honour.

PN60

THE SENIOR DEPUTY PRESIDENT: Well, why isn't the ACT Award applicable?

PN61

MR SCHULZ: Because they don't have depot in the ACT, the depot is only based at Cootamundra.

PN62

THE SENIOR DEPUTY PRESIDENT: I see. Right. Well, in what way is it better - in what way are casual conditions for line haul drivers better?

PN63

MR SCHULZ: The cents per kilometre rate is higher, your Honour, than the State Award.

PN64

THE SENIOR DEPUTY PRESIDENT: Right.

PN65

MR SCHULZ: There's also a minimum pay of 500 kilometres.

PN66

THE SENIOR DEPUTY PRESIDENT: All right. There are a couple of things now I want to take you to in the agreement. Clause 12.3, this is to do with the dispute resolution provision and that provides:

PN67

In the event that no resolution to the problem is found within reasonable time, the matter may be referred to the Australian Industrial Relations Commission for resolution.

PN68

What does resolution mean in that context?

PN69

MR SCHULZ: First off, would be conciliation and then determination.

PN70

THE SENIOR DEPUTY PRESIDENT: Arbitration?

PN71

MR SCHULZ: Arbitration, yes.

PN72

THE SENIOR DEPUTY PRESIDENT: The loading for casual drivers is in the agreement, 10 per cent?

PN73

MR SCHULZ: That's correct.

PN74

THE SENIOR DEPUTY PRESIDENT: In the award - - -

PN75

MR SCHULZ: It is 15 under the award.

PN76

THE SENIOR DEPUTY PRESIDENT: Yes. Right.

PN77

MR SCHULZ: But because of the higher cents per kilometre rate payable under the company's agreement, when you multiply that by ten percent, it still comes out ahead of - if I could refer your Honour to the comparison table that we provided.

PN78

THE SENIOR DEPUTY PRESIDENT: How many of the drivers are casual, by the way?

PN79

MR SCHULZ: At the moment, none.

PN80

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I do not know that it does come out more, does it? I suppose, sorry, if you - if you add the 10 per cent as compared to 15 per cent on the - - -

PN81

MR SCHULZ: That is correct.

PN82

THE SENIOR DEPUTY PRESIDENT: Yes, yes. All right. Now, the hours of employment - a couple of aspects about that.

PN83

MR SCHULZ: What clause is that, sorry, your Honour?

PN84

THE SENIOR DEPUTY PRESIDENT: Clause 21 in the agreement. Clause 3 in the award. They have 38 hours per week in the award, Monday to Friday, or 76 hours per fortnight. The agreement is 38 hours per week, Monday to Saturday.

PN85

MR SCHULZ: Yes.

PN86

THE SENIOR DEPUTY PRESIDENT: And I note that clause 25 in the agreement provides for payment of time and a half for Saturday which really brings it into alignment with the second point in clause 3 relating to time and a half for Saturday.

PN87

MR SCHULZ: That is correct.

PN88

THE SENIOR DEPUTY PRESIDENT: But one other distinction is that the award provides that the employee must then have Sunday and Monday off if they work on Saturday.

PN89

MR SCHULZ: Yes, your Honour.

PN90

THE SENIOR DEPUTY PRESIDENT: But that is not - there is no equal provision in the agreement for that?

PN91

MR SCHULZ: No, there is not. But the Sunday is a rest day. It is the Monday that can be worked but if they have worked their five days - - -

PN92

THE SENIOR DEPUTY PRESIDENT: Yes.

PN93

MR SCHULZ: One would assume that - and that included, as I say, Saturday, that they would then include - would say that they would have the Sunday/Monday off.

PN94

THE SENIOR DEPUTY PRESIDENT: But the agreement does not say that.

PN95

MR SCHULZ: Well, the award will apply to that.

PN96

THE SENIOR DEPUTY PRESIDENT: Well, how would it? If the agreement provides for hours of work then there would be an inconsistency between the agreement in the hours part and that in the award.

PN97

MR SCHULZ: Clause 51 I think would cover that agreement - that variation, I think you will find, your Honour.

PN98

THE SENIOR DEPUTY PRESIDENT: Clause 51 of the agreement, you mean?

PN99

MR SCHULZ: That is right. Where - "by agreement" and then, "referred back to the Commission".

PN100

THE SENIOR DEPUTY PRESIDENT: Well, I suppose the fact that the 38 hours - I suppose if you work Monday through Saturday in one week, you will have worked more than your 38 hours, will you not?

PN101

MR SCHULZ: Yes, you would have.

PN102

THE SENIOR DEPUTY PRESIDENT: Mm.

PN103

MR SCHULZ: Obviously if it was more than 38 hours, your Honour, that would include overtime.

PN104

THE SENIOR DEPUTY PRESIDENT: But see, that does not then guarantee you to have two days off.

PN105

MR SCHULZ: But it is by agreement.

PN106

THE SENIOR DEPUTY PRESIDENT: Yes. But my question is whether it is a disadvantage - whether it is by agreement or not, it is a question of whether it is a disadvantage even if it is done by agreement.

PN107

MR SCHULZ: The award currently provides for people working on Saturdays and Sundays.

PN108

THE SENIOR DEPUTY PRESIDENT: Yes, it does, but - - -

PN109

MR SCHULZ: At appropriate penalty rates, which this agreement would have.

PN110

THE SENIOR DEPUTY PRESIDENT: But as I say, the award provides that they can be worked on Saturday - - -

PN111

MR SCHULZ: By agreement, yes.

PN112

THE SENIOR DEPUTY PRESIDENT: Yes, provided they have the Sunday/Monday off.

PN113

MR SCHULZ: Yes.

PN114

THE SENIOR DEPUTY PRESIDENT: There is - I am just concerned that there does not appear to be any guarantee that an employee will get two days off in a week. It seems to me under the agreement as it stands, an employee could be required to work 38 hours Monday to Saturday without having a full day off in any event, be paid time and a half Saturday, and not get his two days off in the week.

PN115

MR SCHULZ: But if you go to work the Monday, you are going to be back on overtime if you are just working the same thing - I mean, he is being paid - - -

PN116

THE SENIOR DEPUTY PRESIDENT: Well, it should be, but there is nothing in the agreement that would give him that. Because you are into a new week.

PN117

MR SCHULZ: Yes. Well, the average hours can be averaged over the month.

PN118

THE SENIOR DEPUTY PRESIDENT: Yes, that is true. It can be averaged - well, again, it does not say that in the agreement, does it?

PN119

MR SCHULZ: Yes, it does.

PN120

THE SENIOR DEPUTY PRESIDENT: Yes. A "one, two, three or four week period".

PN121

MR SCHULZ: Which is the same as the award, your Honour.

PN122

THE SENIOR DEPUTY PRESIDENT: Clause 21.1.4 is of no consequence any more, is it?

PN123

MR SCHULZ: That is right.

PN124

THE SENIOR DEPUTY PRESIDENT: Yes, all right. I mean, the - I suppose the thing is, apart from the trips - trip per kilometre rates of pay, the other rates of pay are just on a par, are they not, with the - save for a dollar here and there occasionally, but mostly just on a par with the award.

PN125

MR SCHULZ: That is correct, your Honour.

PN126

THE SENIOR DEPUTY PRESIDENT: I am a bit troubled that where that occurs, and there are other entitlements or benefits taken away, then it immediately signals some sort of a disadvantage, I think. Well, I will just leave that for the moment. The other point I wanted to make was the rates of pay.

PN127

MR SCHULZ: In the schedule - or, in the comparison tables, your Honour, that were provided, or in the agreement?

PN128

THE SENIOR DEPUTY PRESIDENT: In the award, sorry.

PN129

MR SCHULZ: In the award, yes.

PN130

THE SENIOR DEPUTY PRESIDENT: Just bear with me. Sorry, just bear with me for a moment. Are the relevant rates taken from the award in clause 1 of the award, are they?

PN131

MR SCHULZ: Yes, your Honour.

PN132

THE SENIOR DEPUTY PRESIDENT: Which is "the wage rate set out in part B of this award. Total weekly rates of pay - " is that it?

PN133

MR SCHULZ: It is the weekly - it is the part B, the monetary rates. THE SENIOR DEPUTY PRESIDENT: I seem to have lost my part B. I'll come back to that.

PN134

MR SCHULZ: Just harking back to the previous matter, your Honour?

PN135

THE SENIOR DEPUTY PRESIDENT: Yes.

PN136

MR SCHULZ: I mean, clause 50 will apply if the agreement is silent on a particular issue such as not having the Sunday/Monday off, then the award applies. If it doesn't specifically include it, then clause 50 is a catch-all saying that the award applies, at 50.2.

PN137

THE SENIOR DEPUTY PRESIDENT: Yes. Well, you say that that's the way clause 50.2 is to be construed?

PN138

MR SCHULZ: Most certainly.

PN139

THE SENIOR DEPUTY PRESIDENT: That if there is no provision - - -

PN140

MR SCHULZ: If the agreement is silent on a particular issue, then 50.2 would come into play.

PN141

THE SENIOR DEPUTY PRESIDENT: Including the issue that we've just dealt with now, in relation to - - -

PN142

MR SCHULZ: To Sunday/Monday?

PN143

THE SENIOR DEPUTY PRESIDENT: Yes.

PN144

MR SCHULZ: Yes.

PN145

THE SENIOR DEPUTY PRESIDENT: Yes. All right. Excuse me. Sorry, Mr Schulz, I've just got to - I've lost something that I had marked somewhere, but can't find it now. Yes, sorry, it's clause 14 of the award.

PN146

MR SCHULZ: Of the agreement?

PN147

THE SENIOR DEPUTY PRESIDENT: Of the award, sorry. Clause 16 of the agreement.

PN148

MR SCHULZ: Yes, the wage rates, yes.

PN149

THE SENIOR DEPUTY PRESIDENT: Yes, clause 14.1 of the award, provides that:

PN150

An employee covered by this section must receive each week, no less than the wage rate prescribed for the appropriate classification in clause 1 of this Award, and, in addition, 30 per cent.

PN151

Now, do you say that clause 16 equates to that?

PN152

MR SCHULZ: The cents per kilometre - - -

PN153

THE SENIOR DEPUTY PRESIDENT: Yes.

PN154

MR SCHULZ: - - - rate, which is inclusive of the 30 per cent, your Honour.

PN155

THE SENIOR DEPUTY PRESIDENT: Yes.

PN156

MR SCHULZ: And the 30 per cent only applies to the long distance drivers.

PN157

THE SENIOR DEPUTY PRESIDENT: I appreciate that, but - well, how many of your people are long distance drivers?

PN158

MR SCHULZ: I think, 60 per cent of them.

PN159

THE SENIOR DEPUTY PRESIDENT: 40 I think, wasn't it?

PN160

MR SUTHERLAND: 40 per cent.

PN161

THE SENIOR DEPUTY PRESIDENT: 40, right. You say those rates there?

PN162

MR SCHULZ: The cents per kilometres rates?

PN163

THE SENIOR DEPUTY PRESIDENT: Yes.

PN164

MR SCHULZ: Yes, are inclusive of the 30 per cent.

PN165

THE SENIOR DEPUTY PRESIDENT: Is that for both the rates set out for the award, the cents per kilometre, and the cents per kilometre rates for the agreement, or just the ones for the agreement?

PN166

MR SCHULZ: No, both. Both contain 30 per cent.

PN167

THE SENIOR DEPUTY PRESIDENT: Is this Award the same as the Federal Award is it?

PN168

MR SCHULZ: The cents per kilometre contained, there is a nexus between the Federal - - -

PN169

THE SENIOR DEPUTY PRESIDENT: Right.

PN170

MR SCHULZ: - - - cents per kilometre rates and the State ones.

PN171

THE SENIOR DEPUTY PRESIDENT: Right. All right. Travel and living away from home allowances?

PN172

MR SCHULZ: Yes.

PN173

THE SENIOR DEPUTY PRESIDENT: That's clause - in clause 16 - 6.2 of the agreement.

PN174

MR SCHULZ: Yes.

PN175

THE SENIOR DEPUTY PRESIDENT: That provides for a daily allowance of $28 per day and grade 8 line haul drivers, $30 per day. The award provides for reasonable actual expenses - reasonable and actual expenses, including accommodation and meals.

PN176

MR SCHULZ: Or as a minimum $28.60.

PN177

THE SENIOR DEPUTY PRESIDENT: But you've given - - -

PN178

MR SCHULZ: The Australian Tax Office allows - - -

PN179

THE SENIOR DEPUTY PRESIDENT: - - - you've given the low - sorry?

PN180

MR SCHULZ: The Australian Tax Office allows the drivers, at the end of the year, to claim up to $67 per night, without substantiation.

PN181

THE SENIOR DEPUTY PRESIDENT: But the $28 is below the $28.60?

PN182

MR SCHULZ: Yes, for the grade 7s and over - for the 8s.

PN183

THE SENIOR DEPUTY PRESIDENT: Well, how many grade 7s have you got?

PN184

MR SCHULZ: How many B-doubles versus singles have you got?

PN185

MR SUTHERLAND: We've got one B-double and about eight normal semis.

PN186

THE SENIOR DEPUTY PRESIDENT: Right. The agreement makes no provision for crib breaks, compared to the crib break given in the award after two hours and Saturday and Sunday?

PN187

MR SCHULZ: Once again, your Honour, if it's not specifically contained in the agreement, it refers back to the award.

PN188

THE SENIOR DEPUTY PRESIDENT: So you say, the award applies, as far as crib breaks are concerned?

PN189

MR SCHULZ: If the crib break is not contained in the agreement, or reference to the crib break, then the award would apply in those circumstances.

PN190

THE SENIOR DEPUTY PRESIDENT: It does apply or it doesn't?

PN191

MR SCHULZ: It does apply, yes.

PN192

THE SENIOR DEPUTY PRESIDENT: Yes.

PN193

MR SCHULZ: Sorry. It would only be more duplication in the agreement.

PN194

THE SENIOR DEPUTY PRESIDENT: Yes, all right. That's okay. That's just - you say there are no casuals, is that right?

PN195

MR SCHULZ: None currently. It's a seasonal thing, your Honour.

PN196

THE SENIOR DEPUTY PRESIDENT: Does the penalties for late payment of wages clause in the award apply?

PN197

MR SCHULZ: Most certainly would, if it's not contained in the agreement again, your Honour.

PN198

THE SENIOR DEPUTY PRESIDENT: Again, this might be - the award might pick this up. The award specifies the amount or the way of calculating annual leave loading. The agreement provides for annual leave loading but doesn't specify any amount?

PN199

MR SCHULZ: Once again, that's a statutory requirement, your Honour. Every award in New South Wales contains a 25 per cent clause.

PN200

THE SENIOR DEPUTY PRESIDENT: All right.

PN201

MR SCHULZ: Well, it's legislation which is reflected in every State-based award.

PN202

THE SENIOR DEPUTY PRESIDENT: So the 25 per cent would apply?

PN203

MR SCHULZ: That's correct, your Honour.

PN204

THE SENIOR DEPUTY PRESIDENT: Again, the union picnic day, there's no provision in the agreement for that, the award applied?

PN205

MR SCHULZ: The agreement or the award actually contained an agreement to have an equivalent day off, if it's not union picnic day, so there is that choice.

PN206

THE SENIOR DEPUTY PRESIDENT: There is no provision for - in the agreement that is, for minimum engagements on recall?

PN207

MR SCHULZ: In the agreement?

PN208

THE SENIOR DEPUTY PRESIDENT: Yes. Clause 37 of the award.

PN209

MR SCHULZ: Yes.

PN210

THE SENIOR DEPUTY PRESIDENT: Provides for recall and it provides for a minimum payment of four hours on a recall, but there's no provision in the agreement. Again, does it - - -

PN211

MR SCHULZ: Once again, your Honour, if the agreement is silent on it, or it's not specifically covered, then the award would apply.

PN212

THE SENIOR DEPUTY PRESIDENT: All right. Yes, very well. Is there anything else you want to say?

PN213

MR SCHULZ: Do you want me to go through the formal process of seeking certification, your Honour?

PN214

THE SENIOR DEPUTY PRESIDENT: No, I've read the statutory declaration and I've had a look at the agreement - had a look at the award. Unless there's anything else and specifically you want to say and - when do you anticipate the applications for the variations to be made?

PN215

MR SCHULZ: Within six weeks, your Honour.

PN216

THE SENIOR DEPUTY PRESIDENT: Right. Yes. There's nothing else?

PN217

MR SCHULZ: No, nothing else.

PN218

THE SENIOR DEPUTY PRESIDENT: All right. Yes, well, I will certify the agreement and I'll issue a statement to the effect that I'm satisfied that the agreement meets the no-disadvantage test and the other requirements of the Act, based on the documentary material, including the statutory declaration and the submissions made by you, Mr Schulz. Thank you for your time.

PN219

MR SCHULZ: Thank you very much, your Honour.

PN220

THE SENIOR DEPUTY PRESIDENT: The matter is adjourned. Copy of the certified agreement will be sent out to you in due course.

PN221

MR SCHULZ: Thank you very much.

ADJOURNED INDEFINITELY [4.34pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #S1 LETTER ADDRESSED TO SENIOR DEPUTY PRESIDENT LACY FROM ARTHUR SPOTTISWOOD, DATED 04/11/2003 PN11