C2003/957, Transcript of Proceedings [2003] AIRCTrans 705 (3 March 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N VT1653
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER MANSFIELD

C2003/957

WESTGATE LOGISTICS PTY LTD

and

TRANSPORT WORKERS' UNION
OF AUSTRALIA

Notification pursuant to section 99 of the Act
of a dispute re the lodgment of BP2003/706 on
5 February 2003

MELBOURNE

2.07 PM, THURSDAY, 13 FEBRUARY 2003

PN1

MR P. RYAN: I seek leave to appear for Westgate Logistics as an agent and with me is MR D. SINCLAIR.

PN2

MR H. SMITH: With me is MR F. BUTERA and we represent the Transport Workers' Union of Australia.

PN3

THE COMMISSIONER: Thanks Mr Smith and Mr Butera?

PN4

MR SMITH: And Mr Butera.

PN5

THE COMMISSIONER: Mr Butera, thank you. This is a section 99 notification which was notified to the Commission by Strategic Industrial Planning Services on behalf of the employer. The notification indicates that there was strong concern about industrial action being taken. That has subsequently been clarified by correspondence from Mr Duffin by the TWU which indicates that it withdraws any suggestion that it would seek to take protective action in this matter and it has clarified that matter. But apart from those items of information, I am not aware of the substance of the matter that has been notified. So perhaps, Mr Ryan, you could help us in that matter.

PN6

MR RYAN: Thank you, Commissioner. Essentially, from our perspective, the issue revolves around the TWU on behalf of its members at one particular Westgate site, which is the Pound Road site, are seeking to obtain a dangerous goods allowance for those employees who might work there and handle dangerous goods. I think, Commissioner, I just want to put a little bit on the record and then head into conference, I think might be a better approach.

PN7

THE COMMISSIONER: Yes, I would be happy to do that.

PN8

MR RYAN: That particular site was initially a site operated by Brimac, a company which Westgate acquired in 2001, operationally from 1 April and the transaction was unconditional from 1 July, 2001. Westgate and the TWU have a current live enterprise agreement and the details of that were contained in the dispute notification. That is a fourth generation enterprise agreement between Westgate and the TWU and it was predicated on the '98 award, which is the major - the parent award in the transport industry. It was certified in the Commission on 17 October and runs - has a notional expiry date of 31 August. Clause 4 of that agreement provides that it is binding on Westgate, its employees and the TWU. It also states, in paragraph 2, that:

PN9

All employees existing in future will be covered by this agreement.

PN10

When Westgate acquired Brimac, it brought the employees across and put it on to the Westgate Enterprise Agreement. So the initial - our initial concern with this process that had been followed, was that the TWU had filed an intention to enter a bargaining period, a bargaining period notice I think, which, I would submit, that under the regime of the Workplace Relations Act they can't do as there is a live enterprise agreement in place.

PN11

THE COMMISSIONER: That is a little but uncertain at the moment, Mr Ryan, as you would know, but go on, I hear what you say.

PN12

MR RYAN: There has been some debate about a decision of the Federal Court Judge - - -

PN13

THE COMMISSIONER: In the Electrolux matter, I think.

PN14

MR RYAN: Yes Kenny J, I think.

PN15

THE COMMISSIONER: Yes. But that is subject to appeal.

PN16

MR RYAN: It would be improper of me to make editorial comments on the inadequacy of that decision, so I won't do that, Commissioner. But, in my view, the regime of the Workplace Relations Act makes it plain that a bargaining period can't be initiated where an existing agreement is in place. I think the issue here is possibly - we have had some discussions in the last 15 minutes while we have been sitting here, Commissioner, and it seems to be that agreement, the Westgate Agreement is going to expire in August, Westgate has approximately five or six sites around Melbourne and over the next six months will play out some negotiations leading to a new Enterprise Agreement.

PN17

We were simply concerned, in the short term, that notice of a - a bargaining period notice had been filed and then protected industrial action and there were going to be rolling stoppages, commencing next Monday. All of that has been withdrawn, as you indicated in the letter from the Federal office of the Transport Workers' Union, and we are now in a position where we have had some discussions with the Transport Workers' Union and, I guess, attempt to move forward in this matter. And I think that is all I need to put on the record at this stage.

PN18

THE COMMISSIONER: Mr Smith, do you want to put anything on the record?

PN19

MR SMITH: Yes, I do and I will - - -

PN20

THE COMMISSIONER: Because I would propose, after you do that, we would go into conference.

PN21

MR SMITH: Yes, I mean, because there are some things I want to say that I don't want to say in open Court. There are two enterprise agreements that apply to the company. I don't dispute what Mr Ryan says, that there is a current live agreement that is underpinned by the Transport Workers' Award 1998, which was agreed to with the union prior to them acquiring Brimac, and essentially applies to their Grieve Parade and western suburbs operation. There is also another enterprise agreement. I have only got one spare - I meant to do some others - called the Transport Workers' Distribution Facilities Enterprise Agreement 1998, which had a nominally expiry date of 31 August, 2000.

PN22

Westgate, under its previous name - there has been a transmission of business - is a respondent to the Transport Workers Distribution Facilities Award 1996. Clearly, we are not the only people within the company that would see that we have a right to negotiate an enterprise agreement for these Dandenong sites, because Mr Des Ralph of the company, on 1 October - sorry, I am going back a decade - 2001, wrote to the union suggesting that we do agreements for these distribution facilities area, the former Brimac sites. And if I can tender that in evidence. The company already have a copy, Commissioner.

PN23

THE COMMISSIONER: Do you have anything else you want to put up, Mr Smith, because - - -

PN24

MR SMITH: Yes. The only other thing is a copy of a draft agreement that we served on the company on 25 November, 2002.

EXHIBIT #S1 LETTER FROM MR RALPH

EXHIBIT #S2 PROPOSED ENTERPRISE AGREEMENT

PN25

MR SMITH: Other than that, at this stage, I am more than happy to go into conference, Commissioner.

PN26

THE COMMISSIONER: We will adjourn off the public record for the moment and go into conference.

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #S1 LETTER FROM MR RALPH PN25
EXHIBIT #S2 PROPOSED ENTERPRISE AGREEMENT PN25