C0085/499, Transcript of Proceedings [2003] AIRCTrans 5595 (15 December 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N F5544

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

C No 00854 of 1999

TRANSPORT WORKERS GARBAGE (ACT)
AWARD 1990

Review under Item 51, Schedule 5, Transitional
WROLA Act 1996 re conditions of employment

MELBOURNE

11.05 AM, TUESDAY, 2 DECEMBER 2003

PN1

MS J. TISDALE: I appear for the Transport Workers' Union.

PN2

THE SENIOR DEPUTY PRESIDENT: Notice of listing has been sent to the Transport Workers' Union Canberra branch and to Australian Business Lawyers ACT and Region Commerce and Industry, Master Builders Association ACT. Have you had any communication with those parties at all?

PN3

MS TISDALE: Not directly. Our office has carriage of the matter rather than a branch so I wouldn't have expected them to appear.

PN4

THE SENIOR DEPUTY PRESIDENT: Yes, I appreciate that.

PN5

MS TISDALE: There is a letter on file dated 22 November 2001 from Australian Business Industrial indicating that they have no interest in this matter.

PN6

THE SENIOR DEPUTY PRESIDENT: Yes.

PN7

MS TISDALE: The Master Builders Association are a common rule party but also have no direct interest in this matter. I have, at an earlier stage in this proceeding, had contact with Mr Billington and his predecessors from the Chamber of Commerce but they have played a very little role, after the initial arbitration, around some matters concerning this award. The situation has changed also in that the refuse work was previously done by a number of different companies who were represented by industry associations and that has all changed in the last year.

PN8

Now there is only one provider and they are a provider who hasn't previously done work in Canberra. That is Brambles, so I have recently commenced a discussion with Bonnie Kestel of Brambles about this and I understand that really she will be the only employer representative who will have a significant interest in this matter.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I have a letter on file from Brambles which they have indicated they have recently contacted and commenced preliminary discussions regarding simplification of the award. Are they the only party then to this award or are there other parties who just have no interest in the simplification process?

PN10

MS TISDALE: Well, the award covers refuse work.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes.

PN12

MS TISDALE: Refuse work, in terms of what is done by the Local Government is all now done by Brambles. I imagine that there are some small operators who do little bits and pieces but they haven't played any role in these proceedings so far.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes, all right. But there are other refuse awards, aren't there, for the other States? I think there is another common rule one, isn't there?

PN14

MS TISDALE: The main award across the rest of the country is the Transport Workers Refuse Recycling and Waste Management Award. That covers work in every State and Territory except for New South Wales and the ACT, so this award only operates in the ACT and is very different to that other Federal Award, very different conditions.

PN15

THE SENIOR DEPUTY PRESIDENT: So there would be no prospect of setting this one aside and having that one apply to ACT as a common rule award?

PN16

MS TISDALE: We have been exploring - maybe I have been exploring, a number of options over some time. The difficulty is that this award is - its history is more within the New South Wales system than the federal system and its conditions are markedly different, superior in a number of respects to most federal awards including the Federal Refuse Award. The main problem though is that the rates are not properly fixed minimum rates. If that adjustment was done, on my calculations there would be significant drop in the rates of pay, but the award doesn't have a compensating industry allowance which the Federal Refuse Award has.

PN17

So it would create quite a distorted situation that might be difficulty to rectify. We have a couple of options that I have explored and I have put to Ms Kestel over the last week, is that the award could be set aside with the Refuse Award common ruled in Canberra but with a schedule of Canberra specific conditions maintaining some of the most significant more beneficial conditions for Canberra. The other possibility is simplifying this award but varying so that we substitute the classifications structure in this award for the Federal Refuse Award and those rates have already been properly fixed minimum rates and it is the classification structure that Brambles operates around the rest of the country.

PN18

Essentially all the work has been done for either of those options. I have a draft simplified award which is ready to go and I also have a draft order which would have the effect of setting this award aside and creating a special schedule in the Federal Refuse Award and essentially now I am waiting to have some discussions with Brambles about what their reference is. As they have only recently taken over this work they aren't very familiar with the award and don't have a sense yet of what their preferred option is.

PN19

THE SENIOR DEPUTY PRESIDENT: I see nothing has been done on this file since December last year.

PN20

MS TISDALE: That is because there was quite a lot of industrial difficulty around the change in contract. There were redundancies paid. The current award didn't have a redundancy entitlement. There was a lot of disputation about how some people were taken on and others not and the level of payments made to those people. That was all put to Commissioner Jones who made a decision to just leave things for a period of time so that the industrial situation could resolve itself without this unnecessarily complicating matters and even those not all of those proceedings have been completed, it is not the case that the award changing now would have an impact on the situation on the ground. So there is no reason why it can't be finalised now.

PN21

THE SENIOR DEPUTY PRESIDENT: Well you say you have a draft simplified award, is that right?

PN22

MS TISDALE: Yes.

PN23

THE SENIOR DEPUTY PRESIDENT: Could you make that available to me? How much time do you think you might need to consider or discuss the options with Brambles?

PN24

MS TISDALE: That is really in their court, your Honour. They need to come up to speed fairly quickly. They really have no idea about these options and really no familiarity with the award. So they are, I understand, at the moment doing their own comparison between this award and the federal award and I am really not quite sure how long they feel they will need.

PN25

THE SENIOR DEPUTY PRESIDENT: Would you convey to them my desire to have this finalised by the end of this year?

PN26

MS TISDALE: Yes.

PN27

THE SENIOR DEPUTY PRESIDENT: By 31 December.

PN28

MS TISDALE: Your Honour, for that to occur it would probably - the option least likely to be able to be completed in that time frame would be to keep this award as is and simplify it. Even though the simplification has been done the minimum rates conversion has not and I think unless - - -

PN29

THE SENIOR DEPUTY PRESIDENT: Sorry, just to interrupt. Couldn't you adopt the minimum rates from the Refuse Award?

PN30

MS TISDALE: We could. It would require a complete change in the classification structure, so varying the award to remove the existing classification and some allowances and substitute an entirely dissimilar classification structure. That would probably be the option that would take the second kind of least amount of time and work.

PN31

THE SENIOR DEPUTY PRESIDENT: What would take the least amount of time and work?

PN32

MS TISDALE: To set the award aside and create a schedule on the Canberra award. I have done the administrative work there but the parties would probably need to just go through that carefully and make sure there are no inadvertent consequences.

PN33

THE SENIOR DEPUTY PRESIDENT: Would that include the existing classifications with a minimum rates adjustment, would it?

PN34

MS TISDALE: My thinking was if we went that way that we would just adopt the classification in the Refuse Award, the Federal Refuse Award would apply with all of its allowances but the other conditions around leave and various other things - - -

PN35

THE SENIOR DEPUTY PRESIDENT: Would be - - -

PN36

MS TISDALE: In the schedule, yes.

PN37

THE SENIOR DEPUTY PRESIDENT: All right. Well, I really would like to do as much as possible to have it finalised before the end of the year and if that necessitates listing the matter for a further conference here between yourself and Brambles, or any other interested party which there doesn't appear there are any now, then we can do that some time in the week beginning the 15th, perhaps in the later part of that week. All right?

PN38

MS TISDALE: Yes, I was will speak to Mr Kestel this afternoon and see if we can come to an agreement ourselves about the best way to proceed.

PN39

THE SENIOR DEPUTY PRESIDENT: Okay. And whichever you decide would you provide me with either the draft appendix or a new draft simplified award?

PN40

MS TISDALE: Yes.

PN41

THE SENIOR DEPUTY PRESIDENT: All right. Thanks very much. The matter is adjourned.

ADJOURNED INDEFINITELY [11.17am]