C2004/2609, Transcript of Proceedings [2004] AIRCTrans 1712 (7 May 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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TRANSCRIPT OF PROCEEDINGS


O/N 6883

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMILTON

C2004/2609
C2004/2785

BITUMEN SPRAYING SERVICES
AWARD 1999

TRANSPORT WORKERS UNION
CONSTRUCTION AWARD 1999

Applications under section 113 of the Act
by the Transport Workers Union of Australia
to vary the above awards to delete an existing
clause and insert a new clause regarding
casual employees

MELBOURNE

2.17 PM, TUESDAY, 27 APRIL 2004

PN1

MR L. DUFFIN: I appear before the Commission in both matters and I appear on behalf of the Transport Workers Union.

PN2

MS K. ATTWOOD: I appear on behalf of the Master Builders Association in Victoria in the matter C2004/2785. I am also authorised to appear on behalf of the Master Builders Association of South Australia in that same matter, and can provide a copy of that letter of authority for the Commission.

PN3

THE DEPUTY PRESIDENT: Are both bodies registered organisations, or - - -

PN4

MS ATTWOOD: Yes, they are.

PN5

THE DEPUTY PRESIDENT: Are they respondent to the award?

PN6

MS ATTWOOD: Yes, they are.

PN7

THE DEPUTY PRESIDENT: Excellent, thank you very much for that.

PN8

MS ATTWOOD: Thank you, your Honour.

PN9

THE DEPUTY PRESIDENT: Terrific. Any objections to hearing both matters together, at least initially?

PN10

MR DUFFIN: No.

PN11

THE DEPUTY PRESIDENT: No objection?

PN12

MR DUFFIN: No, your Honour.

PN13

THE DEPUTY PRESIDENT: Terrific, well, we will do that. Right, over to you, Mr Duffin; they are your applications, I think.

PN14

MR DUFFIN: Thank you, your Honour. Your Honour, perhaps if I may begin by handing up both statements as to service and draft orders in relation to both matters. If I hand up the Bitumen Service matters first. I presume it would be appropriate to mark them on separate files.

PN15

THE DEPUTY PRESIDENT: Yes.

PN16

MR DUFFIN: Notwithstanding the fact that they - - -

PN17

THE DEPUTY PRESIDENT: No, all right.

EXHIBIT #D1 STATEMENT AS TO SERVICE OF THE BITUMEN SERVICES AWARD

EXHIBIT #D2 BITUMEN SERVICES AWARD DRAFT ORDER

PN18

MR DUFFIN: And in relation to the Union Construction Award, the draft order and the - I regret that I didn't give it to your associate at the same time.

EXHIBIT #D3 STATEMENT AS TO SERVICE FOR THE TRANSPORT WORKERS UNIONS' CONSTRUCTION AWARD

EXHIBIT #D4 DRAFT ORDER FOR THE TRANSPORT WORKERS UNION CONSTRUCTION AWARD

PN19

THE DEPUTY PRESIDENT: All right.

PN20

MR DUFFIN: Perhaps I might indicate just by way of an opening that both matters are in relation to increasing the existing loading for casual employees from the existing rate in the award to a 25 per cent loading. I have had only a very brief conversation with Ms Attwood this afternoon in relation to the Union Construction Award; the matter that she appears on behalf of the employers in relation to. I suspect that it will not be too difficult to provide the Commission with consent orders between the parties in relation to that award. We haven't reached that point yet but what I would be seeking is perhaps a two week adjournment to allow Ms Attwood and I to just discuss the finessing of the terms of the draft order.

PN21

In relation to the Bitumen Spraying matter, we have had no correspondence from the party that is on the substitute of service; the one party that attends in these matters.

PN22

THE DEPUTY PRESIDENT: Which party is that?

PN23

MR DUFFIN: They are actually a company by the name of Inrows Technology Proprietary Limited. They have a HR Officer who usually deals with us in relation to that award. What it may be appropriate to do, your Honour, is deal with it in the same way; by giving it a, sort of a, two week period where I can contact them and see whether they have any difficulties, or whether there is a possibility of a consent position being provided to the Commission. Beyond that, perhaps I should also indicate to the Commission that in no other matter has a section 107 application in relation to the principles been made. It may be appropriate to wait until the position between the parties is established in relation to those. It may be that in those circumstances we can provide - - -

PN24

THE DEPUTY PRESIDENT: It is a principle 10 matter, is it?

PN25

MR DUFFIN: That is correct, your Honour.

PN26

THE DEPUTY PRESIDENT: An application, what, above the safety net or - - -

PN27

MR DUFFIN: Yes, that is right. But given that without certainty that it is likely to be a consent position in both matters, it ought not be, given the history of matters in the Commission, something that necessarily requires a Full Bench to oversee. But obviously that is a matter for the President.

PN28

THE DEPUTY PRESIDENT: Let us have a look at it, shall we? Principle 10. Is it agreed that this is an application - and I think you have just answered that question - to make or vary award for wages and conditions above the safety net? I think it is that, isn't it?

PN29

MR DUFFIN: I think it is.

PN30

THE DEPUTY PRESIDENT: Right.

PN31

MR DUFFIN: Certainly in the way that the safety net is defined within the principles as being the existing award.

PN32

THE DEPUTY PRESIDENT: Yes.

PN33

MR DUFFIN: It constitutes a safety net.

PN34

THE DEPUTY PRESIDENT: So that means that either you have to make an application under section 107, or I presume I have to take you to the President - - -

PN35

MR DUFFIN: That is correct.

PN36

THE DEPUTY PRESIDENT: - - - for his consideration under section 108, I think.

PN37

MR DUFFIN: That is correct. I should indicate in relation to that, the TWU has a, sort of a, parent award which is the Transport Workers Award 1998, where these provisions have been inserted into it by way of consent orders before Senior Deputy President Harrison. And there are a number of other awards where those orders have been placed in - - -

PN38

THE DEPUTY PRESIDENT: Right.

PN39

MR DUFFIN: The position was put to Senior Deputy President Harrison who referred the matter to the President, and the President indicated a single member would be capable of dealing with that matter there. So - - -

PN40

THE DEPUTY PRESIDENT: You will take me to all of that material at the appropriate time.

PN41

MR DUFFIN: At the appropriate time. Beyond that I think, as I said, Ms Attwood and I, I suspect, will not be in serious disagreement in relation to it.

PN42

THE DEPUTY PRESIDENT: Understood.

PN43

MR DUFFIN: Unless your Honour has any further questions.

PN44

THE DEPUTY PRESIDENT: No, no, what would be useful though is if you - I suppose on the next occasion you provide me with Senior Deputy President Harrison's decision and any other relevant material.

PN45

MR DUFFIN: Certainly.

PN46

THE DEPUTY PRESIDENT: I think you said it is a parent award?

PN47

MR DUFFIN: Yes, that is right.

PN48

THE DEPUTY PRESIDENT: Need to explore what that means in the context of these proceedings.

PN49

MR DUFFIN: Yes, well, look, it is not - I will provide that in the material as well, your Honour.

PN50

THE DEPUTY PRESIDENT: I am sure we can - I mean, are the wage rates the same, for example?

PN51

MR DUFFIN: The wage rates are a little different because the classification structure is a little different. But within - I mean, within the private transport industry which this is sort of an adjunct to in one sense, because of the slight construction element to it.

PN52

THE DEPUTY PRESIDENT: Yes, there is a whole network of linked transport awards, aren't there?

PN53

MR DUFFIN: Yes, that is correct, your Honour.

PN54

THE DEPUTY PRESIDENT: There is about 40 of them.

PN55

MR DUFFIN: Yes, the classifications flow through on a very similar basis to the metal industry fitter rate flowing through.

PN56

THE DEPUTY PRESIDENT: Right. Well, it was one of the original classifications of award restructuring, wasn't it; I think the transport operator?

PN57

MR DUFFIN: Yes.

PN58

THE DEPUTY PRESIDENT: I vaguely recall in the August, was it, 1989 national wage case decision?

PN59

MR DUFFIN: 1989, yes.

PN60

THE DEPUTY PRESIDENT: I think it was one of the five or six rates, wasn't it?

PN61

MR DUFFIN: It was.

PN62

THE DEPUTY PRESIDENT: Yes.

PN63

MR DUFFIN: As I say, your Honour, unless you have got anything further.

PN64

THE DEPUTY PRESIDENT: Okay, so you propose basically that we adjourn for two weeks and I direct the parties to confer, is that right?

PN65

MR DUFFIN: I think that would be - - -

PN66

THE DEPUTY PRESIDENT: The way to do it.

PN67

MR DUFFIN: Perhaps it may not even require a direction. I think we would be - - -

PN68

THE DEPUTY PRESIDENT: All right, I won't direct if you don't want one. I may not.

PN69

MR DUFFIN: As your Honour pleases.

PN70

THE DEPUTY PRESIDENT: Thank you very much. Ms Attwood?

PN71

MS ATTWOOD: Yes, nothing really further to add, your Honour. Obviously, as Mr Duffin said, we have had some discussion with it. We have provided him with some words and so it really is for us to now discuss that further. Certainly we would believe that we can reach a consent position on the matter. The only thing I will need to do is obviously confer with South Australia in our dealings with it. But given that I have conferred with them to this time, I don't see that that will present any problems and two weeks would be more than adequate. Thank you.

PN72

THE DEPUTY PRESIDENT: All right, thank you very much. Sorry, Mr Duffin, I forgot to ask you, was there a substituted service order issued?

PN73

MR DUFFIN: That is an interesting question; I believe there was, your Honour.

PN74

THE DEPUTY PRESIDENT: I don't think - no, I don't think you did an application for substituted service and on that basis, no order is issued and therefore you are, I think under the rules, obliged to serve all the parties to each of the two awards. So if you wish to do an application for substituted service in each matter, I will - as opposed to serving the full respondency list in each matter, perhaps the appropriate thing to do would be to forward it - - -

PN75

MR DUFFIN: Perhaps if I - - -

PN76

THE DEPUTY PRESIDENT: - - - to my associate and - with grounds, and I will look at it and deal with it appropriately. And that would enable you then to serve in accordance with that order, I think is probably the way to do it.

PN77

MR DUFFIN: I think that is correct, your Honour.

PN78

THE DEPUTY PRESIDENT: Then allegations can be made of failure to serve and natural justice and the like.

PN79

MR DUFFIN: It would preferable for that not to occur, your Honour.

PN80

THE DEPUTY PRESIDENT: I think so, I think so.

PN81

MR DUFFIN: For both of our sakes, I think.

PN82

THE DEPUTY PRESIDENT: I think so. All right, my associate will provide you with a card so that you have an address to send the drafts to, and when do you think you will be able to get them done? I mean, I am just asking so - it is important to have time.

PN83

MR DUFFIN: I suspect by Thursday.

PN84

THE DEPUTY PRESIDENT: No problems. All right, we will see an application from you by close of business on Thursday, and I will issue them, probably, on Friday if the grounds - if I am satisfied as to the grounds. Terrific, I think that is all then. Have you been making these applications in other transport awards? Is this one of many or - - -

PN85

MR DUFFIN: This is one of - or two of approximately 20 I think, your Honour.

PN86

THE DEPUTY PRESIDENT: That you have been making?

PN87

MR DUFFIN: Yes.

PN88

THE DEPUTY PRESIDENT: To the same effect?

PN89

MR DUFFIN: Yes.

PN90

THE DEPUTY PRESIDENT: Right.

PN91

MR DUFFIN: There are four - in relation to the - as I indicated earlier, the Transport Workers Award 1998, in addition to that there was also orders made in the transport workers refuse, recycling and waste management, transport workers mixed industries and transport workers distribution facilities towards the end of 2003.

PN92

THE DEPUTY PRESIDENT: Right.

PN93

MR DUFFIN: So there are, sort of a - - -

PN94

THE DEPUTY PRESIDENT: So there is a long history of them.

PN95

MR DUFFIN: Yes.

PN96

THE DEPUTY PRESIDENT: I am sure you will show me all of that if it is relevant. I think it will be, won't it?

PN97

MR DUFFIN: I suspect that there is some relevance. I mean, yes, perhaps some relevance, yes.

PN98

THE DEPUTY PRESIDENT: I think it is relevant, or it could be relevant.

PN99

MR DUFFIN: That is correct, your Honour.

PN100

THE DEPUTY PRESIDENT: If that is the way the principles are being applied and it is probably relevant to show me that.

PN101

MR DUFFIN: Yes.

PN102

THE DEPUTY PRESIDENT: So that we can have regard to it. Excellent, well thank you very much for that. I will await to see the draft substituted service orders in each matter. Secondly, we will adjourn the matter for two weeks. Shall we fix a date now so that - we will just go off the record for a minute.

OFF THE RECORD

PN103

THE DEPUTY PRESIDENT: Having heard the parties, we intend to adjourn until 10.15 on 24 May. On that date the parties have informed me they expect to have completed consultations with relevant award respondents and have filed and served in accordance with signing substituted service orders. And we will see where we go to at that stage in terms of submissions, the principles and the like. Right, nothing else?

PN104

MR DUFFIN: No, your Honour.

PN105

THE DEPUTY PRESIDENT: Thank you very much. We will adjourn until 10.15 on 24 May.

ADJOURNED UNTIL MONDAY, 24 MAY 2004 [2.31pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #D1 STATEMENT AS TO SERVICE OF THE BITUMEN SERVICES AWARD PN18
EXHIBIT #D2 BITUMEN SERVICES AWARD DRAFT ORDER PN18
EXHIBIT #D3 STATEMENT AS TO SERVICE FOR THE TRANSPORT WORKERS UNIONS' CONSTRUCTION AWARD PN19
EXHIBIT #D4 DRAFT ORDER FOR THE TRANSPORT WORKERS UNION CONSTRUCTION AWARD PN19