C2002/5938, Transcript of Proceedings [2003] AIRCTrans 58 (7 January 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 1, 17-21 University Ave., CANBERRA ACT 2601
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER TOLLEY

C2002/5938

TRANSPORT WORKERS UNION OF AUSTRALIA

and

MAYNE GROUP LIMITED

Application under section 170LW of the Act
for settlement of dispute re concerning
negotiations over the NSW Road Crew as
required by Clause 12

CANBERRA

3.00 PM, TUESDAY, 17 DECEMBER 2002

PN1

THE COMMISSIONER: I will take the appearances.

PN2

MR P. SEAL: If the Commission pleases, on behalf of the Transport Workers Union. With me is G. MALONE and also K. RYAN.

PN3

THE COMMISSIONER: Ryan, was it?

PN4

MR SEAL: Kevin Ryan.

PN5

THE COMMISSIONER: R-y-a-n?

PN6

MR SEAL: R-y-a-n.

PN7

THE COMMISSIONER: Thank you. Yes.

PN8

MR D. McPHERSON: I appear on behalf of Mayne Logistics trading as Armaguard. Also R. MYERS.

PN9

THE COMMISSIONER: Yes, thank you. Well, tell me all about it, Mr Seal.

PN10

MR SEAL: Commissioner, this dispute is about section 12 point - note 2 - of the Canberra Road Crew Certified Agreement, and I have a copy of that agreement for the Commission, if you do not have one.

PN11

THE COMMISSIONER: Thank you. I presume the company has got a copy of the agreement.

PN12

MR SEAL: Commissioner, as you will note in that section of the Enterprise Agreement, there is - at 12 note 12 - there is a provision for a number of wage increases. The first one is that a certain criteria is met, that the criteria is, that there are two, four person, crewed vehicles in full operation and, as a result of that, there is pay rise delivered. It also says - in the second paragraph, Commissioner - "Within three months of any New South Wales wage movement, it is agreed by both parties they entered negotiations regarding Canberra rates and parity." Now, that is in relation to the New South Wales rates, Commissioner. On 25 May this year, the New South Wales - Armaguard, New South Wales Road Crew Enterprise Award 2002-2005 was signed off and certified. That then became the trigger for the negotiations to take place in Canberra. Now, Commissioner, there has been numerous attempts to negotiate - meaningfully, negotiate with the company - in relation to New South Wales parity. All the triggers that are required in the New South Wales award - because that is what it is, an enterprise award in New South Wales - have been, not only met in the ACT, but also surpassed. Now, I have certainly a history of that for you, Commissioner.

PN13

For example, at the time that the enterprise agreement was entered into, there was a road crew of 34 staff. There were nine armoured vehicles, consisting of two by two persons vehicles; six by three persons vehicles; one purpose built four wheel drive snow truck and two support vehicles; minimum of eight rostered runs a day, and nine during the snow season, which is - and also there was servicing of an average of 820 clients per week. Since that time, up to present, Commissioner, the work has not dropped off; in fact, the work has increased. There is a crew of 22 staff now performing those functions. There are 10 armoured vehicles consisting of seven by two person trucks; two by three persons trucks; and they still have the purpose built snow vehicle. There are six rostered two man trucks runs a day, and an additional three man truck twice a week. And they service an increased average of about 880 to 900 clients per week. Commissioner, also, in relation to the two man crewing arrangement, the crew carry out, approximately, 90 per cent of their work - sorry, weekly work is done in two man crewing operations. The KPIs are, at the time of the enterprise agreement, was one job per hour person per truck. The current rate is 1.8 jobs per hour per person truck. And also, Commissioner, the workers at Chubb work consistently long hours.

PN14

Now, Commissioner, this has been an issue that has been, as I say, the subject of numerous discussions between the company and ourselves. It has been a matter that has been raised for this Commission, when it was raised before Commissioner Deegan; that was on 8 November. As a result of that, Commissioner, the parties were told to go away and deal with the question of flexibility of the New South Wales parity. Commissioner, there was a subsequent meeting with the company. In fact, two subsequent meetings: the first one resulted in the company requesting that the union put their claim in writing, which is what we did - and I have a copy of that for the Commission.

PN15

THE COMMISSIONER: We will mark that as A1.

EXHIBIT #A1 COPY OF WRITTEN CLAIM RESULTING FROM FIRST MEETING WITH THE COMPANY

PN16

MR SEAL: The company should have a copy of it, but if they do not, I have one for them. At that meeting, Commissioner, the company gave every indication that they were prepared to negotiate on flexibilities - sorry, not flexibilities - on the parity - the New South Wales parity. At that meeting, it was put - what is written there is, basically, a written form of what was, actually, put to the company at the time. The company gave every indication that they would go away and do exactly what was requested of them, not only by the Commission, but also at that meeting, and that is to look at the question of parity, to look at the flexibilities, and to come back with a wage offer.

PN17

Commissioner, what they, in fact, did, was wrote a letter which, I think, by any definition, was designed to inflame the situation, and maybe one would be so callous as to say, "Enforce the employees to take some form of industrial action." I have a letter - I have a copy of that, Commissioner.

PN18

THE COMMISSIONER: A2.

EXHIBIT #A2 COPY OF LETTER FROM COMPANY

PN19

MR SEAL: Subsequent to that, Commissioner, there was another meeting at which Mr McPherson, who is present, and Mr Myers, who is also present, attended. Once again, there was discussion about parity. Once again, there was a discussion about the claim. And, once again, the company went away claiming that they would put back an offer to the union. They did not do that. So, what they did, in fact, was attempt to circumvent the union by calling a meeting of all the staff and putting an offer which could only be described as insulting to those workers. By that, I mean, Commissioner, there is some difference of $200 per week between New South Wales and the ACT. What the company then offered was, basically, approximately, $50 in response for the scrapping of clause 12 point note 2, and I have a copy of that, Commissioner, to present to the Commission. Commissioner, subsequent, again, to that and after - - -

PN20

THE COMMISSIONER: This will be A3.

EXHIBIT #A3 OFFER FROM COMPANY AT SECOND MEETING

PN21

MR SEAL: And my understanding after the employees at Armaguard told the company that - in no uncertain terms what they could do with that particular offer - it was determined that we would seek the Commission's - under 170LW arbitration on the issue. Commissioner, it is important to say that the workers were at work - - -

PN22

THE COMMISSIONER: In accordance with the EBA.

PN23

MR SEAL: Well, that is, certainly, true, Commissioner, that is definitely true. It is an emotive issue. The workers do know that they are subject - they are substantially disadvantaged by the position they are in. They know that criteria that is required in the New South Wales award to be met for them to, in fact, get what amounts to a 24 per cent wage - sorry, a 9 per cent wage increase over a period of time which would put them some 24 per cent in front of the ACT, does not even come to the criteria that has, actually, been performed by the ACT drivers or road crew at this moment. As I say, Commissioner, it is certainly an emotive issue. It is certainly one that need to be arbitrated.

PN24

Commissioner, at the time of this certification of this enterprise agreement, and the negotiations for it, it was understood - and I have - if the Commission needs evidence-in-chief from the delegate who was present at the time, Kevin Ryan, because neither myself, or Mr Malone were, actually, part of that negotiation process, but Mr Ryan was - who can inform the Commission as to what his understanding - and the members, at the time - understanding of what that particular clause meant because the Commission will note that this agreement goes to the year 2004. And other than that particular clause, there is no provision for any other wage increase between now, or 2004.

PN25

Now, Commissioner, I know the Transport Workers Union is certainly not in the habit of signing off on enterprise agreements that do not provide for a wage increase over an extended period of time and I am certain that the members at the time also would not have agreed to something that did not provide for them some form of wage increase over that period of time. Therefore, I can only assume that what Mr Ryan is telling me is accurate, and that is that the wage increase was going to be delivered by this particular clause. Commissioner, if necessary Mr Ryan will provide that evidence.

PN26

THE COMMISSIONER: Well, that may not be necessary at the moment. Mr McPherson.

PN27

MR McPHERSON: Yes, thank you, Commissioner. We are a bit perplexed. We do not really know why we are here. We thought adequate progress was being made in terms of negotiating some form of wage increase on clause 12, note 2, but in particular we are a bit I suppose bemused about the interpretation of that clause. But more to the point, my understanding is we are here for a section 99, not a 170LW.

PN28

THE COMMISSIONER: The notification was made under section 170LW. The matter was listed pursuant to section 99.

PN29

MR McPHERSON: So under a section 99, we do not believe that the settlement disputes procedure in the EBA has been exhausted.

PN30

THE COMMISSIONER: Well, I can deal with that right now. This matter is now before the Commission pursuant to section 170LW and the Commission can use its general powers to make a change. Does that sort that out for you?

PN31

MR McPHERSON: Yes.

PN32

THE COMMISSIONER: Let us get it fixed up and not pussyfoot around.

PN33

MR McPHERSON: I appreciate that and I would prefer it that way as well. We did meet with the union. We did meet with the road crew. We have written twice to the union. We have put in an offer to the union and to the road crew. We have received no formal response. If I can put up to the Commission the letter that we wrote to Mr Seal of the TWU on 10 December. On 10 December when we actually met with the union, we believed that there was informal overtime bans in place and we refused to meet with the union whilst those informal overtime bans were in place.

PN34

THE COMMISSIONER: That was December, was it, the 10th?

PN35

MR McPHERSON: December the 10th. The actual dates that we believe informal overtime bans were in place were Friday, 6 December, 10 December and 11 December.

PN36

THE COMMISSIONER: Yes, thank you.

PN37

MR McPHERSON: We have 21 road crew and on those three days - - -

PN38

THE COMMISSIONER: I will mark that as R1.

EXHIBIT #R1 LETTER FROM MAYNE GROUP TO TWU DATED 10/12/2002

PN39

THE COMMISSIONER: Have you got a copy of that, Mr Seal.

PN40

MR SEAL: I have a copy.

PN41

MR McPHERSON: We have 21 road crews, Commissioner, and not one was available to work overtime on that Friday, Thursday - sorry, Monday and Tuesday. We raised it with the union on at least three occasions and I believe on Wednesday after the hearing had been listed, the informal overtime bans had been lifted. If I can also draw your attention to clause 12, note 2 in that correspondence I have just put forward, we did make an offer of $10 for a flexible crewing allowance and that was made in good faith providing that the overtime bans were lifted, and that that would settle the claim. We have not heard from the union.

PN42

Subsequent to that we met with the road crew on the 10th after the union had received that letter and we did give them notification that we intended to communicate with our employees. We spoke to the employees and it was during discussions with the employees - and then we subsequently wrote to Mr Seal and we have a copy of that letter - that the concept of a joint working party comprising local management and employees would get together to discuss the issues and any increases and any flexibilities which are Canberra-based specific flexibilities. That was put forward. We thought that was a good outcome and that we were about to set that committee up. To my knowledge, there has not been a formalised committee put forward and we have had no flexibilities, no Canberra-based specific flexibilities, put forward from the TWU or from the employees.

PN43

During the discussions it became evident that there was informal overtime in place. Some of the comments coming from the road crew was the rule at the moment is no to any overtime and yes, these actions were designed to move discussions along so that we can commence our negotiation of the issues. If I could put that one forward. That was written to - or said to Mr Seal of the TWU on 11 December.

EXHIBIT #R2 REPORT OF DISCUSSIONS ON 11/12/2002

PN44

MR McPHERSON: Commissioner, if I can cut through a lot of what has been happening, there is an interpretation of clause 12, note 2 that I do not believe - neither party is seeing eye to eye. I wrote the clause, I was there at every meeting and I do recognise at least one gentleman there. I wrote that clause and note 2 states:

PN45

Within three months of any New South Wales wage movement it is agreed by both parties that they will enter into negotiations regarding Canberra rates and parity. The resultant increase will be based on Canberra specific flexibilities.

PN46

And what we have offered is a $10 a day flexible crewing allowance to try and reach some of that. It is quite clear they are not part of the New South Wales award. They are under a federal jurisdiction. We have employees that work in Queensland that come into New South Wales. We have employees from Victoria that come into New South Wales. The Canberra road crew, Commissioner, are the highest paid base rate federally in Australia.

PN47

We are not saying that we are not negotiating. What we are trying to get is a process. Every time when we have gone to the union there are no flexibilities on the table, there are no offsets for this increase. And on top of that we had what we believe were informal overtime bans. We were not prepared to discuss it, but we retain our right to communicate and talk to our employees. The parity we claim - and I wrote this clause - the parity that we claim is based on Canberra specific flexibilities. If they would give us those to offset a wage increase, then we can do some wage increase. It depends on what it is, and that is what I was explaining to the road crew. If we sit down together - - -

PN48

THE COMMISSIONER: Thanks, Mr McPherson. Anything further to add before I adjourn into conference?

PN49

MR SEAL: Sorry, Commissioner, I think that there is any number of issues that Mr McPherson raised which are not exactly true, but I think that we can probably deal with those in conference. Thank you, Commissioner.

PN50

THE COMMISSIONER: We will adjourn into conference.

SHORT ADJOURNMENT [3.18pm]

RESUMED [3.40pm]

PN51

THE COMMISSIONER: I have had some brief discussion with the parties in conference and the Commission is of the view that this matter needs to be dealt with swiftly. It will also need to have some goodwill from either side to resolve the issues. Accordingly, pursuant to section 111(1)(t), and being mindful of the fact that this application is made pursuant to section 170LW of the Workplace Relations Act, the Commission orders and directs as follows.

PN52

One, a working party will be set up by the parties. The names of the members on the working party will be communicated to each other by no later than midday tomorrow, it being Wednesday the 18th. The working party will meet firstly by no later than midday on Friday of this month - that is about the 20th - and exchange the issues between them, the company's - I will not use the word "allegations" because it is not correct - the company's outline of what they see they need, the union's view of what they see they have already given, and their views about the other stuff. Those meetings will continue until Friday, 3 January.

PN53

By Tuesday, 7 January, Mr Seal and Mr McPherson, you will both inform me in writing in my chambers in Melbourne as to the position of the parties in respect of what they have been discussing. In the event that I form the view there has not been sufficient progress to resolve the issues, I will set a hearing date, if not at the end of that week, early in the next week. I will come to Canberra, I will proceed to hear arguments pursuant to section 170LW and I will set down three days for the arguments and inspections.

PN54

Now, it goes without saying, I know people get frustrated. We are all human. Do not go spitting the dummy before Christmas. Do not go putting any bans on unnecessarily. And by the same token, I would expect the company to use a bit of common sense too in dealing with its employees. Do you all understand that? Are you all very clear on what I am saying? I hope so. Enjoy what is left of the year. Enjoy Christmas. I will you all in new year. The Commission is adjourned.

ADJOURNED INDEFINITELY [3.45pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 COPY OF WRITTEN CLAIM RESULTING FROM FIRST MEETING WITH THE COMPANY PN16
EXHIBIT #A2 COPY OF LETTER FROM COMPANY PN19
EXHIBIT #A3 OFFER FROM COMPANY AT SECOND MEETING PN21
EXHIBIT #R1 LETTER FROM MAYNE GROUP TO TWU DATED 10/12/2002 PN39
EXHIBIT #R2 REPORT OF DISCUSSIONS ON 11/12/2002 PN44