C2003/6130, Transcript of Proceedings [2003] AIRCTrans 5393 (8 December 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 5401

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

C2003/6130

TRANSPORT WORKERS (OIL
DISTRIBUTION) AWARD 2001

Application under section 113 of the Act
by the Transport Workers' Union of Australia
to vary the above award to include a provision
for dispute resolution training leave

MELBOURNE

3.00 PM, THURSDAY, 20 NOVEMBER 2003

PN1

MS SUZIE LEARMONTH: Appearing on behalf of the Transport Workers' Union.

PN2

MS MARGARET TAYLOR: Appearing for APADA.

PN3

MR D. NORTH: Appearing for Linfox Australia.

PN4

THE COMMISSIONER: Thank you Mr North. Yes, Ms Learmonth.

PN5

MS LEARMONTH: The Transport Workers' Union has made an application to vary the Transport Workers (Oil Distribution) Award 2001 to insert a clause 4 - dispute resolution training leave. The respondents party to the award were served with a notice of hearing and order for substituted service and the draft order on 10 November. So I will hand up the statement of service which attest to that as well as the draft order.

PN6

THE COMMISSIONER: Thank you.

EXHIBIT #TWU1 STATEMENT OF SERVICE

EXHIBIT #TWU2 DRAFT ORDER

PN7

MS LEARMONTH: The draft order sets out the clause that we are seeking to have inserted into the award which provides for union delegates to have up to five days training in dispute resolution. The award currently provides for union delegates and that they be allowed during working hours to discuss with the employer matters effecting the employees. The union delegate is also able to interview a member of the union or members of the union during working hours.

PN8

This, we would anticipate, would be for the purposes of trying to resolve disputes that have arisen in the work place. Therefore it is important that union delegates and/or employee representatives be able to have access to paid training in the resolution of disputes. During the simplification process of the award the ability of an employee representative or union delegate to be allowed during working hours to attend to matters effecting employees has remained and it is included in the dispute settlement clause and that is current clause 11.2.

PN9

From the TWUs perspective it would seem a natural progression that access to paid training leave be available to these employees to facilitate the settlement of disputes under this clause. The draft clause is similar in nature to that provided for in the decision and supplementary decision of Munro J of this Commission which are both set out in PR903193 and PR906393 respectively. There have been some discussions with the employers party to this award and subject to what they have got to say today we would be seeking an operative date of today's date.

PN10

And in the terms of the draft order as provided and to have that inserted at the end of clause 11 - settlement of disputes clause. I have nothing further Commissioner.

PN11

THE COMMISSIONER: Thank you. Ms Taylor.

PN12

MS TAYLOR: Commissioner, again we are stating the obvious that we are only representing our members in this matter but after considering the draft provision we came to the conclusion that we do not oppose the insertion of the clause providing for dispute resolution training leave in principle and have indicated this to the union previously. We also indicated that our decision has been on the basis that such training may be conducted by any accredited training organisation of choice by the employer through discussion at the work place.

PN13

Can I add that the inclusion of this particular clause was thought to be appropriate because in reality it could be seen as taking a pro-active approach to have employees trained in dispute resolution processes as a means of hopefully minimising or avoiding potential disputation before it escalated. So that the consensus of our organisations board of management was that the training could be something agreed upon between employer and employee in terms of accessing the most appropriate course available having regard to the needs of the operation. That is all I have to say, Commissioner.

PN14

THE COMMISSIONER: Thank you, Ms Taylor. Mr North.

PN15

MR NORTH: Thank you, Commissioner. Similar to the submission of APADA, Linfox does not oppose the insertion of such a clause. However, we would appreciate the opportunity to have a little bit more time with the Transport Workers' Union to see if we could agree to a couple of amendments as we have sought in similar applications to other awards.

PN16

THE COMMISSIONER: So you are seeking an adjournment?

PN17

MR NORTH: That is correct, Commissioner. Just for seven days, Commissioner. I am sure we can resolve it quickly.

PN18

THE COMMISSIONER: I will be proceeding on leave at the end of next week for the better part of a month.

PN19

MR NORTH: I could almost advise you by close of business Monday, Commissioner.

PN20

THE COMMISSIONER: All right.

PN21

MR NORTH: If that would be acceptable to you.

PN22

THE COMMISSIONER: Yes. Thank you.

PN23

MR NORTH: Thank you, Commissioner.

PN24

THE COMMISSIONER: Do you have any objection to that Ms Learmonth?

PN25

MS LEARMONTH: No, I don't Commissioner. And I certainly think that time constraints will be useful.

PN26

THE COMMISSIONER: All right. Mr North you don't object in principle to the provision of leave entitlements of this kind?

PN27

MR NORTH: That is correct, Commissioner.

PN28

THE COMMISSIONER: You are concerned with the terms upon which the entitlements are regulated?

PN29

MR NORTH: That is correct, Commissioner.

PN30

THE COMMISSIONER: Are you concerned with the quantum of leave?

PN31

MR NORTH: No, Commissioner.

PN32

THE COMMISSIONER: All right. Good. Thank you. Well, look I can foreshadow that in light of the proof of service in TWU1 that I am satisfied that the application deals with an allowable award matter and is consistent with a Full Bench decision on that subject as a matter of principle. Moreover that the inclusion of leave of this kind is consistent with the principle object of the Act in section 3 of the legislation, and in particular section 3(b), 3(d), 3(e) and is consistent with the public interest insofar as it is desirable that the prevention and settlement of industrial disputes should occur as far as possible on an informed basis at the level of the work place.

PN33

As for the actual entitlements and the regulation of the entitlements prescribed by the proposed draft order varying the award I will adjourn consideration of the regulatory aspects of the clause and assume that an order should be made in due course which prescribes leave of the quantum sort on terms to be either agreed between the parties or determined by the Commission. And I direct that the parties advise by the close of business on Monday, 24 November, what, if any, changes are agreed to the draft order or if there is any disagreement as to the form of an order to give effect to my decision that the award should include such terms as are generally sought, what the nature of the disagreement is and how it is proposed that the Commission should deal with that disagreement. Thank you.

ADJOURNED ACCORDINGLY [3.08pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #TWU1 STATEMENT OF SERVICE PN7
EXHIBIT #TWU2 DRAFT ORDER PN7