C2003/10344, Transcript of Proceedings [2004] AIRCTrans 1120 (24 March 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 6360
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER TOLLEY

AG2003/10344

APPLICATION FOR VARIATION OF
CERTIFIED AGREEMENT

Application under section 170MD(2)
of the Act by Australian Rail, Tram
and Bus Industry Union to vary the
preparation times on the M>Train system

MELBOURNE

11.45 AM, WEDNESDAY, 10 MARCH 2004

Continued from 21.1.04

PN11

MR M. MAROTTA: I appear for RTBU.

PN12

MR D. MOORE: I appear for M>Train together with MR R. JOHNSTON.

PN13

THE COMMISSIONER: Yes, Mr Moore, thank you. Mr Marotta, I presume you are going to lead off.

PN14

MR MAROTTA: If the Commission pleases. This is an application under 170MD of the Act. The application seeks to have a variation on what is currently the work practice on metropolitan trains, the preparation of. Currently a driver is required to bring a train into service, he needs to check a range of safety critical equipment, such as brakes and a whole range of other things. The time allocation for that is all together 58 minutes. Now, with the advent of the privatisation of the system and the division of the rail metropolitan system into two companies, there was also a requirement from the government to install additional equipment, the passenger communications with the driver, the emergency egress mechanism for passenger use, and there is also video surveillance of passengers within each compartment, and that is recorded whether the driver has access or not.

PN15

Now, because it is categorised as safety critical, it is required to be tested and be functional at the beginning of all revenue services on electric trains. Now, once the M>Train company installed all this equipment, a number of tests were commissioned. The original preparation time was in the order of 85 minutes, the parties agreed that they would seek ways to reduce that by range of streamlining and double - or checking whether we could streamline it down. After exhaustive tests we bought the system the preparation time down to 67 minutes. Now, this was achieved after our members did the preparation and it was corroborated by numerous tests done by management representatives.

PN16

So it was agreed late last year that that would be the time frame allowed for a preparation of a six car train of a metropolitan service. And as a consequence we subsequently got a supplementary agreement from the company which we have submitted today for a variation of what exists today.

PN17

THE COMMISSIONER: Yes, thanks, Mr Marotta.

PN18

MR MAROTTA: If the Commission pleases.

PN19

THE COMMISSIONER: Mr Moore.

PN20

MR MOORE: If the Commission pleases. First of all I would say that there is no disagreement, or there is agreement I should say to put it in the positive, with the RTBU Loco Division about the content of the agreement for preparation time. There may have been some comment made inadvertently earlier by M>Train that has been interpreted by the union to suggest that the standing of that agreement may have been in question. I take the opportunity whilst we are on transcript to reassure the union and reaffirm that M>Train is committed to the terms of the agreement and it acknowledges that those terms of agreement that have been reached between the parties are appropriate in the circumstances.

PN21

I would however though raise an issue, or perhaps it is more of a question, regarding the form of the agreement. So in terms of content we say - - -

PN22

THE COMMISSIONER: Did you say the form?

PN23

MR MOORE: The form of agreement.

PN24

THE COMMISSIONER: Yes.

PN25

MR MOORE: That is correct, your Honour. The question in my mind is with respect to do we need to progress a formal variation to the certified agreement to capture the content of this agreement. And there is a couple of things that draw me, I guess, to that conclusion, or to that question. One is that the content of the agreement for preparation time was in fact negotiated between the parties at the same time or coincident with the negotiations for the enterprise bargained agreement, the certified agreement, which is the M>Train Enterprise Agreement 2003-2006.

PN26

And it could have been incorporated into the terms of that agreement during its negotiation but that was not done at that point in time. I understand that to the best of my knowledge, and this may be subject to correction from Mr Marotta, that at the time of negotiating the preparation time agreement it was not contemplated by the parties, nor was it presumed that that prep time agreement would in fact be incorporated into the enterprise bargain agreement. I would also draw the attention of both the Commission and Mr Marotta to the provisions of the agreement, particularly at clause 7.2, where the agreement certainly contemplates that there may be changes to future working arrangements and certainly this issue regarding preparation times is one of those issues. And I will just quote from the agreement. It states that:

PN27

If there are matters identified by the parties during the term of the M>Train Enterprise Agreement 2003-2006 it could necessitate the need for a significant ...(reads)... framework of this agreement. This agreement will not preclude the negotiation of other agreements between the parties during the life of this agreement.

PN28

So certainly the EBA contemplates that there would be a process for, I guess, as we conveniently refer supplementary agreements to be incorporated. But in the sense of my reading of the enterprise agreement, the life - during the life of the enterprise agreement is sometime between the date of certification of that agreement, which is 25 November 2003 and 1 June 2006, which is the nominal expiry date.

PN29

The agreement that we have for preparation times has a date stamp of 24 September 2003. So in fact that agreement was reached prior to the certified agreement receiving certification from this Commission. It also talks about significant change, but perhaps I am not the best person to comment about how significant the change is. I think that Mr Marotta has identified that as it goes to safety issues, it certainly is of a significant nature, and one that needs to be properly contemplated by the parties.

PN30

In summary, I would simply come back to the question of saying, is this something that we really need to go through a formal process of variation of the certified agreement to capture, or are we more contemplating that when supplementary agreements are being negotiated, that they are issues of far more significance and substance that occur during the life of the agreement not prior to the agreement being certified. If the Commission pleases.

PN31

THE COMMISSIONER: Thank you. Any comment about that, Mr Marotta?

PN32

MR MAROTTA: Yes, if the Commission pleases. Mr Moore quite rightly points out that the agreement was not reached until late September. A letter was received after 24 September. The process for the EBA was well under way at that stage, and for us to go back and try and amend or add on at that point was quite difficult. That was the technical reason why it wasn't attached.

PN33

The other matter that perhaps I should give some background to. Normally, if we were dealing with the same company over the life of this agreement we would say perhaps Mr Moore's comments have some merit. But unfortunately there is a bit of a history here. I will draw the Commission's memory to the last time we presented at this place, an unorthodox request was made of us to seek to postpone it, based on their commitment to negotiate what was an alternate way of doing the preparations with a view to lessening the time even more.

PN34

A couple of complications come - well, first of all, to report back, no meeting has been requested by the company who asked for the original postponement. Second, these companies went and installed equipment that is quite different, whereas on one company - they achieved the same thing, but on one company they have used a different brand of equipment, and they are able to install technology that doesn't require the driver to actually physically test it: it gives the driver an indication that there is a defect. Whereas on M>Train, the equipment there, we are still - well, it is still not known if that is able to be done.

PN35

Whilst the union has said to the new franchise holder, or potentially new franchise holder that we are quite happy to sit down and do that in due course, and with a view to reducing it, but we are confronted with a couple of problems. This preparation has now been incorporated in the driver training course. It is being taught to trainees as we speak. It is also being taught to qualified drivers.

PN36

So as there is a timetable change - well, books to come out shortly, it needs to be varied, because nowhere is it reflected. Now, given our situation, I thought this was the most appropriate way to deal with it. If the Commission pleases.

PN37

THE COMMISSIONER: We will go off the record for a moment.

OFF THE RECORD

PN38

THE COMMISSIONER: There has been some discussions in conference. The Commission strongly recommends that the matter is best resolved by having the new arrangement about preparation time reduced to correspondence from M>Train to the RTBU, and the RTBU to reply saying that is the accepted position between the parties. That is to happen by Friday of this week, that is 12 March, from memory - I am generally wrong about dates - and I will append such correspondence to the file of this matter for posterity. I will undertake to contact Mr James to acquaint him with the situation.

PN39

Anything, Mr Marotta? Nothing? Anything, Mr Moore?

PN40

MR MOORE: No, your Honour. I would simply acknowledge that we will comply with that recommendation as you have put it.

PN41

THE COMMISSIONER: Is that your position too, Mr Marotta?

PN42

MR MAROTTA: Yes. If the Commission pleases, that is an acceptable arrangement.

PN43

THE COMMISSIONER: All right, gentlemen. Thank you for your cooperation. The Commission is adjourned.

ADJOURNED INDEFINITELY [12.02pm]