C2004/2504, Transcript of Proceedings [2004] AIRCTrans 1344 (7 April 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
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TRANSCRIPT OF PROCEEDINGS


O/N 6552

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

C2004/2504
AG2004/10450

NATIONAL BUS COMPANY
(VICTORIA) PTY LIMITED

and

TRANSPORT WORKERS UNION OF AUSTRALIA

Notification pursuant to section 99 of the Act
of a dispute re industrial action at the North
Fitzroy and Doncaster depots with regards to
certified agreement negotiations

TRANSPORT WORKERS (PASSENGER VEHICLES)
AWARD 1984

Application under section 170NA(1) of the Act
re conciliation in respect of agreement

MELBOURNE

4.10 PM, FRIDAY, 26 MARCH 2004

PN1

MR B.W. STOOKE: I seek leave to appear for National Bus Company (Victoria) Pty Limited.

PN2

MR J. PICONE: I appear for the Transport Workers Union.

PN3

THE SENIOR DEPUTY PRESIDENT: Mr Stooke, you will have to tell me what is the issue.

PN4

MR STOOKE: Yes, your Honour, thank you. Your Honour, you will recall when we were last before the Commission on 4 March in matters pertaining to a 170NA application - - -

PN5

THE SENIOR DEPUTY PRESIDENT: Yes.

PN6

MR STOOKE: - - - filed by the company, certain proposals were canvassed with the parties and in particular whether the parties would be prepared to support an arbitration on the identified list of matters that had been tabled to your Honour.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes.

PN8

MR STOOKE: Unfortunately, we have been advised by the TWU following their meeting on 10 March - they met with the company on 11 March - that there had been a decision taken not to proceed with that particular option. Your Honour, the union also put to the company at that point in time a number of matters that had been resolved by resolution for the company to address, and a period of one week was set aside for the company to consider those matters and to revert. And on 23 March - Tuesday, 23 March, the company met with the delegates and Mr Picone and at that meeting the company responded to the matters. And perhaps, your Honour, if I hand up the document - it is a fairly succinct summation of what transpired in relation to that particular meeting and that will help your Honour gain an understanding of where the proceedings are at this point in time.

PN9

THE SENIOR DEPUTY PRESIDENT: I will mark this matter as NB1. How will I identify that? It is a memo, is it, from - - -

PN10

MR STOOKE: No, your Honour, it is a memorandum from Miss Mary-Lou Tan who is the Managing Director for National Bus to all drivers and workshop employees and it is dated EBA meeting today, Tuesday, 23 March 2004 and the document relates to the status of negotiations - the position that was put to the company by the union together with the company's response and if I may, your Honour, I am happy to read that on to the record or we can take it as having been - as read.

EXHIBIT #NB1 MEMORANDUM FROM MISS MARY-LOU TAN TO DRIVERS AND WORKSHOP EMPLOYEES DATED 23/03/2004

PN11

THE SENIOR DEPUTY PRESIDENT: Take it as read. I will just take a minute to finish reading it. And sorry, when did that go on the notice board, what date?

PN12

MR STOOKE: This is Tuesday, 23 March.

PN13

THE SENIOR DEPUTY PRESIDENT: Right. Yes, right.

PN14

MR STOOKE: In essence, your Honour, what this document seeks to do - and you will notice in the first, second, third paragraph, set out is the resolution that derived from the union meeting on 10 March and that resolution identified - from letters (a) to (i) - the matters that the union were seeking agreement on and similarly the response of the company is the NBC position at the bottom of that document. We would contend, your Honour, that substantially we have addressed the matters that the union has canvassed with the company and in fact on the matter of remuneration we would contend that the offer that the company has put, which in essence is 4 per cent per annum cumulative over a three year- period is actually closer to probably 13 per cent in the aggregate.

PN15

We would suggest that that is far in advance of what is on offer in comparative organisations within the industry. And indeed you will recall, your Honour, when we were last before you, we did go to some detail as to the differences between the aggregate rates that applied in the industry settlement, vis-a-vis, the proposal that the company had put. And in those terms, we would submit that at the end of a three year period the NBC drivers would be in a preferred position of something of the order of $21 per week at the benchmark rate, which is a straight-shift driver on the seniority.

PN16

Your Honour, that being the situation, the company also attached to that document - which is the company final options list - two options. One is 11.1 per cent increase over three years and it is linked to also recognising average weekly earnings on a certain premise, and without going through the detail of that, your Honour, it does preserve in the main some protection - if we can put it that way - for the remuneration question to be addressed if there is a significant movement in average weekly overtime earnings - ordinary earnings, I should say. And secondly, the second option, your Honour, relates to the one that was significantly canvassed before you in previous proceedings and that related to a 12 per cent increase over three years which, as I suggested, is probably closer to 12-point something given that the 4 per cent per annum is actually cumulative. And if you look at that, that involves certain productivity and efficiency concessions being made by the union and the employees to support that increment.

PN17

Your Honour, you will note that in that letter also the company did seek the views of employees to consider the options that had been put up - - -

PN18

THE SENIOR DEPUTY PRESIDENT: Yes.

PN19

MR STOOKE: So we would suggest that that is still the position at hand and in terms of what the company's expectation is.

PN20

THE SENIOR DEPUTY PRESIDENT: Have you had any response?

PN21

MR STOOKE: No, we haven't, your Honour, other than the fact that we, on 24 March, received a protected action notice from the union signed by the - or for and on behalf of the Federal secretary of the union, Mr John Allan.

PN22

THE SENIOR DEPUTY PRESIDENT: Do you have a copy of that?

PN23

MR STOOKE: I do have a copy, your Honour, and I will tender that document.

PN24

THE SENIOR DEPUTY PRESIDENT: I will mark the notice of industrial action dated 24 March 2004 from the Transport Workers Union of Australia to the National Bus Company as NB2.

EXHIBIT #NB2 NOTICE OF INDUSTRIAL ACTION FROM THE TRANSPORT WORKERS UNION OF AUSTRALIA TO THE NATIONAL BUS COMPANY DATED 24/03/2004

PN25

MR STOOKE: Thank you, your Honour. You will note that, as I said, that is the response that we have received to the particular proposition that we have put to the employees and also for the DCC and the union to consider, and in essence that notice has advised that industrial - it has empowered the union to take industrial action in the terms of 1, 2, and 3 as set out in the document: firstly, the holding of a four hour stop work meeting on Tuesday, 30 March 2004 commencing at 12 pm, midday; secondly, the holding of a stoppage each week day, Monday to Friday, from Wednesday, 7 April 2004 until Wednesday, 21 April 2004, commencing at 6 am on each occasion with a duration of up to 12 hours on each occasion, and thirdly, a ban on the sale of Met tickets. So, your Honour, simply put that is the response to the proposition that the company has put out.

PN26

We would say that having had something in the order of 218 claims and seven months of negotiations that the position of the union - given that the company offer is fair and generous - that the union position in this situation is completely unacceptable, particularly given the impact that this disputation next Tuesday is likely to have on the public who are dependent on the transport service. And in that regard, your Honour, you would appreciate that National Bus Company is the largest private bus operator in the Melbourne metropolitan area. It carries predominantly school children in the mornings in the peak hours and needless to say, the timing of this particular stoppage will have an impact on the ability of the company to meets its obligations to its contract and to the schools and the like to actually transport those children home.

PN27

So the company during the course of yesterday and today has taken every opportunity available to it to actually inform schools and the travelling public that there will be an inability to provide a service on Tuesday from 12 midday for four hours. And needless to say, that four hours would terminate within the middle of the peak period. So that is regrettable. Obviously, it is a decision taken by the union. We don't agree with it. We find it unacceptable and certainly we have not sat on our hands in relation to that matter and what we have done is written to the union and I would like to tender a copy of that document if I may to your Honour.

PN28

THE SENIOR DEPUTY PRESIDENT: I will mark the letter dated 25 March 2004 to Mr J. Allan of the Transport Workers Union from the Managing Director of the National Bus as NB3.

EXHIBIT #NB3 LETTER TO MR J. ALLAN FROM THE MANAGING DIRECTOR OF NATIONAL BUS DATED 25/03/2004

PN29

MR STOOKE: Thank you, your Honour. Your Honour, the notice actually states - and it recognises the fact that we did receive a copy of the notification on the intention to take industrial action, or protected action as such. Going to the second last paragraph and I will read it on to the record:

PN30

The company advises its extreme disappointment the union has elected to engage in industrial action which will have a significant impact upon the metropolitan community who rely on our transport. And particularly you should be aware that the timing of the proposed stoppage on Tuesday, 30 March will render thousands of school children stranded without transport to safely return them to their homes. This in our view is unacceptable and we will be publicly expressing that view. You should also be aware that the company has today notified the Australian Industrial Relations Commission pursuant to section 99 of the existence of the intended industrial action. Further, we note that your protected action notice is deficient to the extent that it lacks specificity in relation to proposed bans on the sale of Met tickets.

PN31

In relation to that, your Honour, we would seek from Mr Picone on the record today some clarity as to what the intention in relation to that ban is and when that ban is likely to come into effect. The letter further goes on to say:

PN32

We also formally advise that any industrial action including a ban on the sale of Met tickets will disentitle the payment of wages whilst taking such action. This, as you would appreciate, derives from section 187AA of the Workplace Relations Act. We formally request the union to reconsider its position and desist from engaging or organising any industrial action which will have the impact on the community at large.

PN33

And just finally, the company has said:

PN34

We would appreciate your formal advice regarding our request to desist from the proposed action as a matter of urgency. I can be contacted on 94882112 or mobile -

PN35

and that was signed by the Managing Director, Mary-Lou Tan. And I can report, your Honour, to this point in time, we have not had a response to that letter.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes, all right, and - sorry, were you going to say something else?

PN37

MR STOOKE: The only other thing, your Honour, we also yesterday put out an advice note to all employees to inform them of the status of the situation in relation to the company's action and our view that we find the action unacceptable and we have appealed to the employees to similarly desist from taking the action and I would like to tender a copy of that letter too and that was dated 25 March. It is a memo to all drivers and workshop employees.

PN38

THE SENIOR DEPUTY PRESIDENT: I will mark the memo from National Bus to all drivers and workshop employees as exhibit NB4.

EXHIBIT #NB4 MEMO FROM NATIONAL BUS TO ALL DRIVERS AND WORKSHOP EMPLOYEES

PN39

MR STOOKE: Your Honour, that basically brings us to this point in time. What we are seeking as a consequence of the action that has been taken by the union - as I have stated on the record here - we believe the notice is defective to the extent that it lacks specificity in terms of the industrial action intended to be taken, so we put the union on notice that they should address that particular issue. We are well aware of what their rights are under the Workplace Relations Act in relation to protected action.

PN40

We would however suggest to the union that given the nature of our business and the public interest in relation to our business that the union should give very serious consideration to the impact that their action is likely to have upon the community at large. And as your Honour would be aware, that many of the personnel who use our service are in fact in circumstances where they don't have alternative transport. So it will have a significant impact on the community in the Melbourne metropolitan area.

PN41

The stop-work meeting is intended to commence at 12. We haven't been advised as to whether that is when the meeting starts because if the meeting starts at 12 o'clock we would assume that there would have been an intention to actually leave the worksite at some time earlier than 12. Well, that is not stated in the notice that has been given to us. If it means that the actual activity ceases to take effect from 12 then that would comply to that extent with that part of the notice. But the union at this point in time hasn't given us clarification on that particular aspect.

PN42

Your Honour, perhaps I should not go any further at this point in time and it might be an opportunity for the union to actually advise whether or not they are prepared to respond to our letter of yesterday and give us and the community a general undertaking that they will desist from the action. If the Commission pleases.

PN43

THE SENIOR DEPUTY PRESIDENT: Well, what were you seeking from the Commission specifically?

PN44

MR STOOKE: Your Honour, what we are seeking is to continue to progress the matters that are subject to the negotiation with the view that ultimately we seek an agreement in an amicable way without the need to revert back to industrial action. So to the extent that the Commission is able to assist us in achieving that objective and sparing the public from going through the difficulties of a stoppage next week and thereafter as foreshadowed in April, then that would be an appropriate outcome from today's proceedings.

PN45

THE SENIOR DEPUTY PRESIDENT: Am I correct by the way in my understanding that Met tickets are not the same thing as National Bus tickets or are they one and the same thing?

PN46

MR PICONE: Do you want me to speak to that your Honour?

PN47

THE SENIOR DEPUTY PRESIDENT: You can tell Mr Stooke and he can tell me.

PN48

MR STOOKE: Met tickets are separate tickets but they are the majority of the sales. So they are actually the Government-issued ticket as I am instructed.

PN49

THE SENIOR DEPUTY PRESIDENT: Which entitles the passenger to travel on Government vehicles as such?

PN50

MR STOOKE: Correct. So it is universal across train, tram and bus.

PN51

THE SENIOR DEPUTY PRESIDENT: And National Bus has a ticket of its own that it sells as well?

PN52

MR STOOKE: Yes, it does, your Honour.

PN53

THE SENIOR DEPUTY PRESIDENT: All right, thanks, I will hear from Mr Picone now.

PN54

MR STOOKE: Thank you, your Honour.

PN55

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Picone, what do you have to say?

PN56

MR PICONE: If your Honour pleases. In response to the managing director's letter; your Honour, there was no response forwarded to the company as we were notified that we were attending a Commission hearing and that at that point in time our decision was to go ahead with the protected industrial action for Tuesday, 30 March 2004 and that is why we didn't respond to that letter, your Honour. Your Honour, the meeting that we had on 23 March with the company, the company tabled two options. The union responded with a claim on option one.

PN57

THE SENIOR DEPUTY PRESIDENT: Had there been meetings before 23 March?

PN58

MR PICONE: Yes, your Honour, there was a meeting on 16 March, I believe - Tuesday, 16 March.

PN59

THE SENIOR DEPUTY PRESIDENT: Is that all? Since the last time the matter was here which was - we were last here on 4 March,or the matter was last before me on 4 March. Have there been other meetings since then?

PN60

MR PICONE: No, your Honour, just the two that were mentioned.

PN61

MR STOOKE: Your Honour, if I may clarify that. There was a meeting obviously on the 11th following the stoppage on the - authorised stoppage on the 10th. That was when the proposal was put to the company and a week transpired for the company to be able to respond.

PN62

THE SENIOR DEPUTY PRESIDENT: Good.

PN63

MR STOOKE: And the company did respond on the 16th.

PN64

THE SENIOR DEPUTY PRESIDENT: Yes, right. Yes, Mr Picone, so there was a meeting on the 16th? There was a meeting on the 23rd?

PN65

MR PICONE: Yes.

PN66

THE SENIOR DEPUTY PRESIDENT: And on the 23rd that was when the union said that the company's proposals were not acceptable; is that right?

PN67

MR PICONE: That is correct, your Honour.

PN68

THE SENIOR DEPUTY PRESIDENT: When did the union notify the company that it wasn't interested in having outstanding matters arbitrated?

PN69

MR PICONE: That was on 11 March, your Honour.

PN70

THE SENIOR DEPUTY PRESIDENT: All right.

PN71

MR PICONE: And that was a result of the stop-work meeting on the 10th, if I remember right.

PN72

THE SENIOR DEPUTY PRESIDENT: Right. Okay. So what do you say about the rest of it?

PN73

MR PICONE: Well, your Honour, on 16 March the company was told of a report of the meeting that happened on 10 March and that the workforce had rejected an arbitrated outcome and it was agreed by the vast majority of the employees that the TWU award be adopted and with the - - -

PN74

THE SENIOR DEPUTY PRESIDENT: Now, just let me understand. When you say TWU award, you are talking about the industry standard agreement, is it, or - - -

PN75

MR PICONE: Yes.

PN76

THE SENIOR DEPUTY PRESIDENT: - - - not the actual award?

PN77

MR PICONE: The TWU award conditions with the industry rates of pay rise - that is fine, yes. And with the following points that are listed in the NBC or NB1 document, and I can read them out, your Honour, or - - -

PN78

THE SENIOR DEPUTY PRESIDENT: Yes, just read that now. I just want to go over that. How many companies do you say apply the award conditions of the industry rates of pay?

PN79

MR PICONE: All of them bar Mylon Motors in Wodonga, your Honour.

PN80

THE SENIOR DEPUTY PRESIDENT: How many is all?

PN81

MR PICONE: All the companies that have route service operations.

PN82

THE SENIOR DEPUTY PRESIDENT: Have what operations?

PN83

MR PICONE: Route service operations.

PN84

THE SENIOR DEPUTY PRESIDENT: Sorry, I still didn't catch that.

PN85

MR PICONE: Okay, well there is route service, there is charter - - -

PN86

THE SENIOR DEPUTY PRESIDENT: Oh, route service, yes.

PN87

MR PICONE: - - - and school work.

PN88

THE SENIOR DEPUTY PRESIDENT: I couldn't hear what sort of service you were saying. Now, you were going to tell me what - you are going to read to me, aren't you?

PN89

MR PICONE: Yes, your Honour, it is the first page of NB1.

PN90

THE SENIOR DEPUTY PRESIDENT: NB1?

PN91

MR PICONE: Yes.

PN92

THE SENIOR DEPUTY PRESIDENT: Yes, go on.

PN93

MR PICONE: And they are points from (a) to (i). So they wanted the - or they would prefer the TWU award with the industry rates of pay with the following points to be negotiated -

PN94

(a) is industry rates of pay with penalties; (b) TWU terms and conditions; (c) split shifts with pay rates to be negotiated.

PN95

because there is no split shifts in the TWU award - passenger vehicle award -

PN96

(d) weekend work to be optional; (e) five day rosters Monday to Friday; (f) no rotating rosters; (g) split shifts spread and hours to remain the same -

PN97

as per the current agreement that has expired and -

PN98

(h) is retain seniority and (i) is retain agreed items.

PN99

as have been agreed by the parties, your Honour. So that is what the vast majority of the employees preferred and that is what we tabled with the company. We had a meeting on 23 March and we were told that that was unacceptable and that the company would table - the company did table two options and they were as Mr Stooke explained on page 3 of NB document one. Your Honour, the union's response to option one was that we could see some merit in that if the increase was a 15 per cent increase over the three years. With that the company wanted 20 minutes to have a think about it and on returning from the time that was allocated to the company, they said that that was not a viable proposition for the company, your Honour. So as far as the consultative committee is concerned - I mean, we are at a dead end - absolute dead end, and, your Honour, that is what has brought the protected industrial action notice forward.

PN100

THE SENIOR DEPUTY PRESIDENT: These options have been considered by the employees at the yard, have they, these two options?

PN101

MR PICONE: By the consultative committee, your Honour, not - - -

PN102

THE SENIOR DEPUTY PRESIDENT: Not by the employees?

PN103

MR PICONE: - - - the employees.

PN104

THE SENIOR DEPUTY PRESIDENT: The employees are aware of them though, aren't they?

PN105

MR PICONE: Yes, your Honour, they are aware of them.

PN106

THE SENIOR DEPUTY PRESIDENT: How many people on the consultative committee?

PN107

MR PICONE: From the workforce we are looking at 12, I think, your Honour. That is the two from the workshops and the 10 from the driving force. And your Honour, options one and two are similar to what the company has tabled previously with the split-shift spread to blow out to 12.5 hours and 4.5 hours for the break, and the drivers in a meeting of 10 March totally rejected the split-shift spreads to blow out to that. Levels 1 and 2, they are not satisfied with that, they want them removed, your Honour, and we have put that to the company several times. So the consultative committee are well aware of the workforce's preferences, to use a better word, and that they understand that those two options would be rejected, your Honour.

PN108

THE SENIOR DEPUTY PRESIDENT: Why do you think industrial action will make the company give you 15 per cent?

PN109

MR PICONE: Well, I don't know what it will make the company give us, your Honour, but I can't answer that.

PN110

THE SENIOR DEPUTY PRESIDENT: Sorry?

PN111

MR PICONE: I really can't answer that but there is a very frustrated workforce and - - -

PN112

THE SENIOR DEPUTY PRESIDENT: Yes, but they have got to be realistic. I mean, where do you get 15 per cent from? Whereabouts in the workforce can you get 15 per cent over three years at the moment?

PN113

MR PICONE: Well, your Honour, they are the expectations of the workforce and as we have said in previous conference meetings and on transcript that - it is the difference between the industry hourly rate and the composite that is 11 cents and the 11 cents, your Honour, doesn't reward or compensate the employees for the loss of penalty rates and it is a composite rate of $17.23 for all hours worked Monday to Friday. So they are disadvantaged compared to other bus drivers, your Honour.

PN114

THE SENIOR DEPUTY PRESIDENT: Other bus drivers, where? In Victoria?

PN115

MR PICONE: In Victoria that carry out route service work.

PN116

THE SENIOR DEPUTY PRESIDENT: All right. What would it take for the employees to agree to call off the stop-work meeting or the industrial action?

PN117

MR PICONE: Well, it would have to - - -

PN118

THE SENIOR DEPUTY PRESIDENT: All right, sorry, let me re-phrase that: to simply delay their industrial action at this stage without withdrawing their notice of industrial action, but simply to delay it. In other words, because if you agree to withdraw it or delay it - sorry - if you agree to withdraw it then you would have to initiate another notice but if you can agree to delay it and let the notice stand, what would it take for them to do that at the moment?

PN119

MR PICONE: Your Honour, we would have to receive something attractive from the company to not carry out with that industrial action and it would have to be attractive.

PN120

THE SENIOR DEPUTY PRESIDENT: All right, okay.

PN121

MR PICONE: Thank you, your Honour.

PN122

THE SENIOR DEPUTY PRESIDENT: Mr Stooke, the union of course, and the employees, as you well know, are entitled to take industrial action under the Act, or authorised industrial action under the Act. I know you say, well, it is not properly authorised because the notice is ambiguous or uncertain and there is authority for the proposition that a notice that is uncertain or ambiguous may mean that the industrial action that is taken pursuant to the notice is unlawful rather than lawful. But to get to that stage, you need to come here and so would the union need to come here and argue about whether or not it is sufficiently clear and that is going to take up a lot of everybody's time. You heard what Mr Picone said in order to have them call off or delay or postpone the industrial action, there needs to be some other fairly substantial offer made. Is the company in a position at this stage to increase its offer?

PN123

MR STOOKE: Your Honour, I can be very succinct about that.

PN124

THE SENIOR DEPUTY PRESIDENT: I am sure you can but take as long as you like.

PN125

MR STOOKE: We have had considerable discussion over the last few months about the reality of the company's offer. The company offer, we believe, is a fair one. It is very much in line with community standards. It is far in excess of what the Government recently awarded to employees in the public sector which was an aggregate 3.8 per annum.

PN126

THE SENIOR DEPUTY PRESIDENT: But Mr Picone says it is not comparable with the bus industry standards.

PN127

MR STOOKE: We don't accept that proposition, your Honour, and in documents we have canvassed previously before the Commission, it was evident on the 12 per cent proposal that at the end of a three-year period there was in the order of 70 cents differential between the NBC and the industry rate, which on the basis of the hours worked for the ordinary hours would be $21 a week. And we put it fairly succinctly to the union at that time that for employees to enjoy comparable income to what they currently have under an industry proposal, they would have to work in the order of 43 hours a week and it is only beyond 43 hours with a kick-in of penalties where they may get some marginal benefit. So that would be assuming that we were agreeable to - in the hypothetical - to the industry penalty rates, which we are not.

PN128

Your Honour, clearly the company is not in a position, because of the particular revenue regime that the company works under, to change to an ill-defined or uncertain wages scenario where the company has not control over its costs and from that point of - - -

PN129

THE SENIOR DEPUTY PRESIDENT: But is it better placed to withstand industrial action over a protracted period of time?

PN130

MR STOOKE: Well, we obviously don't want industrial action. We would take a view - and we reserve our rights obviously under section 170MW, at some point in time to perhaps address that in the event that that action does take place. So that is obviously an option available to us.

PN131

THE SENIOR DEPUTY PRESIDENT: Of course, it is just the other one, I am just saying, it is - - -

PN132

MR STOOKE: But at this point in time, we would hope that the union would have some level of social responsibility in relation to the impact that it is, firstly, going to have on the community, whom we mutually serve; secondly, on the employees themselves because it is a significant investment they are going to make, and thirdly, the damage it will do to the company in terms of financial but also in reputational terms. So from that point of view, we would submit that it is not in either party's mutual interest to have any form of industrial action or stoppage and if the union is deluding itself that by taking this action that the company is all of a sudden going to materialise some improved offer, the company is not. It would be economically irresponsible for the company to increase its cost base to the extent that it puts the company in a very detrimental situation in terms of future operation. So the company is in a very complex and difficult scenario.

PN133

I mean, we have gone as far as we have gone and as your Honour knows, we address something of the order of 218 claims and many of those claims have been agreed to and there are some conditional changes that have also been included in the package, including changes in removal of the double meal break, extra flexibility on the spread of the meal allowance and the like. So we would say that the concessions that the company has made right through these negotiations have not been insignificant. And at this point in time, whilst one could have had some expectation that the inspections that your Honour facilitated on the meal breaks at these new locations, not even that has been agreed now, that has been repudiated.

PN134

So we would say we have got a package from the union perspective that offers us absolutely zero; no productivity savings, no improvement at all. So all the concessions have been made by the company and we don't believe that we can pander to a negotiation where it is just one way and that is where it has been. So we are at a point that we have Hobson's choice. We can't improve the offer, it would be economically irresponsible to do that. So if the union wants to take industrial action, as your Honour has pointed out, that under certain scenarios they are entitled to do that. We would argue that the notice is deficient and therefore the potentiality of having a legal action is, in our view, problematic for the union and the authorising officers of that union. So whether or not the company sustains losses or not will be the matter that will be tested in due course, I guess.

PN135

THE SENIOR DEPUTY PRESIDENT: Yes, well, I can't - without hearing evidence, without looking at the arguments and so forth - I can't decide that now, obviously. What I will give you though is - I will adjourn into conference. Is there anything else you want to say on the record?

PN136

MR STOOKE: Yes, I need to correct something. I did say, your Honour, that the 4 per cent per annum over the three years, I suggested to the Commission that that would be more than 12 per cent because of the cumulative effect but in fact it has been already built into the computations, so it is 1.97 for each of the six increments which - - -

PN137

THE SENIOR DEPUTY PRESIDENT: So it is not in fact - it is not 4 per cent cumulative.

PN138

MR STOOKE: It is literally 12 per cent, yes.

PN139

THE SENIOR DEPUTY PRESIDENT: Yes. So it is 12 per cent on the existing salary not 4 per cent next year on whatever the existing salary is - - -

PN140

MR STOOKE: And the only variation to that - we did make a concession which was for the first time during the negotiation since last before you, that we would recognise a WOTI. If the WOTI increased more than 13 per cent then we would recognise that. So up to 12, 13 per cent.

PN141

THE SENIOR DEPUTY PRESIDENT: But you would take the first 1 per cent?

PN142

MR STOOKE: Yes.

PN143

THE SENIOR DEPUTY PRESIDENT: Yes.

PN144

MR STOOKE: So that is a variation since we have last been here, yet another concession by the company and at this point in time we have had no concessions whatsoever, no recognition of any of the issues that the company has raised. So that is not negotiation in our view, your Honour.

PN145

THE SENIOR DEPUTY PRESIDENT: All right.

PN146

MR STOOKE: It is the old cricket-bat syndrome. So I guess I will leave it there, your Honour.

PN147

THE SENIOR DEPUTY PRESIDENT: Mr Picone, did you want to say anything else on the record before I adjourn into conference?

PN148

MR PICONE: Yes, I would, your Honour. In regards to the industrial action, your Honour, the Transport Workers Union sees itself as a fair union and a union that operates with integrity. It also understands that its employees, its members, have rights and those members can utilise those rights and understanding that there are people that are going to suffer but bus drivers have rights like any other employees do. And I would just like to point out to the Commission, your Honour, that some three years ago we had a protected industrial action meeting on a Friday to negotiate the previous enterprise bargaining agreement and the company didn't have a problem in locking the employees out for the rest of the afternoon.

PN149

THE SENIOR DEPUTY PRESIDENT: They might not have a problem locking them out now either, I - - -

PN150

MR PICONE: Well, your Honour, you know, they can have a go at the union for taking the action but they didn't think twice about locking six members out then.

PN151

THE SENIOR DEPUTY PRESIDENT: As I say, the union is entitled to take the action it is proposing, just as the company is entitled to take - provided again it does so in conformity with requirements of the Act - same with the TWU or the union and the employees - is entitled to take that action.

PN152

MR PICONE: But it works both ways, your Honour.

PN153

THE SENIOR DEPUTY PRESIDENT: Yes, of course.

PN154

MR PICONE: You know, they can whinge about the union but they also need to have a look at themselves.

PN155

THE SENIOR DEPUTY PRESIDENT: I am just saying, yes.

PN156

MR PICONE: So - and that is really all I have got to say, your Honour. I just wanted to correct that. Thank you

PN157

THE SENIOR DEPUTY PRESIDENT: Okay, well, I will adjourn into conference, thanks.

SHORT ADJOURNMENT [4.52pm]

RESUMED [5.22pm]

PN158

THE SENIOR DEPUTY PRESIDENT: During the adjournment, I have had discussions with the parties in an endeavour to resolve what appears to be an impasse between the union, the employees and the company. It seems at this stage neither party is prepared to change their position on the options that have been advanced for the resolution of the bargaining period and in the circumstances it doesn't appear that there is anything or any action the Commission can take under section 99 to assist the parties. It may well be that there are other avenues for one or other of the parties to deal with the matter but, as I say, at this point in time there is nothing the Commission can do. That is the way the Act or the scheme of the Act is and I can just ask that the parties try to moderate their views and enter into further discussions with a view to reaching some compromise that everybody can live with. Anything else on the record, Mr Stooke?

PN159

MR STOOKE: No, your Honour.

PN160

THE SENIOR DEPUTY PRESIDENT: No.

PN161

MR STOOKE: We thank your Honour for listing this matter at short notice. It has been disappointing that we haven't been able to achieve an undertaking from the union to desist from the action but as your Honour has pointed out, in certain circumstances it is available to the union to take this particular action. If the Commission pleases.

PN162

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Stooke. Mr Picone?

PN163

MR PICONE: Nothing further to add, your Honour.

PN164

THE SENIOR DEPUTY PRESIDENT: The matter is adjourned.

ADJOURNED INDEFINITELY [5.24pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #NB1 MEMORANDUM FROM MISS MARY-LOU TAN TO DRIVERS AND WORKSHOP EMPLOYEES DATED 23/03/2004 PN11
EXHIBIT #NB2 NOTICE OF INDUSTRIAL ACTION FROM THE TRANSPORT WORKERS UNION OF AUSTRALIA TO THE NATIONAL BUS COMPANY DATED 24/03/2004 PN25
EXHIBIT #NB3 LETTER TO MR J. ALLAN FROM THE MANAGING DIRECTOR OF NATIONAL BUS DATED 25/03/2004 PN29
EXHIBIT #NB4 MEMO FROM NATIONAL BUS TO ALL DRIVERS AND WORKSHOP EMPLOYEES PN39