AG2004/2807, Transcript of Proceedings [2004] AIRCTrans 2752 (16 July 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 12271

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON

AG2004/2807

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by WITS Holdings Pty Limited for certification
of the Wadley's Interstate Transport Services
Enterprise Agreement 2003

SYDNEY

10.18 AM, WEDNESDAY, 7 JULY 2004

PN1

THE SENIOR DEPUTY PRESIDENT: May I have appearances in this matter.

PN2

MR P.X. HOULIHAN: I am appearing with MR B. WADLEY of the company and MR N. PIERPOINT and employee of the company your Honour.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Houlihan.

PN4

MR HOULIHAN: Your Honour this application flows from the last time we were here in the matter AG1353 and the faults that your Honour found with that application. In consequence of that your Honour the procedure required under section 170LK has been repeated. I understand you have on file the notices that went to all employees that details the requirements of section 170LK, advises employees that the company intends to make this agreement in this jurisdiction and advises them of their rights in relation to being represented by a trade union.

PN5

THE SENIOR DEPUTY PRESIDENT: No I don't have that notice on file Mr Houlihan.

PN6

MR HOULIHAN: Well I'll provide you with a copy your Honour.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes I have a document titled notice to all employees dated 27 April 2004.

PN8

MR HOULIHAN: Your Honour the form R30 affidavit signed by Mr Wadley of the company and witnessed by a JP, do you have that your Honour?

PN9

THE SENIOR DEPUTY PRESIDENT: Yes.

PN10

MR HOULIHAN: The procedure that was followed your Honour is detailed at 5.4. The fact that in the second paragraph there it is referred to that in the period from 27 April to 30 April a series of meetings were held with different drivers as they rotated through the Sydney depot your Honour and Mr Wadley and Mr Tom Wills of our company attended those meetings. Employees were again given copies of that document that has just been handed to you your Honour and also of the agreement. Then a ballot was commenced on 14 May and was concluded when 10 of the 15 employees effected by the proposed agreement had voted in favour of the proposal.

PN11

THE SENIOR DEPUTY PRESIDENT: So five did not cast a vote?

PN12

MR HOULIHAN: That's as I understand it your Honour, yes. Your Honour I have given to your associate a document which is simply the agreement that was given to the employees varied for the most recent minimum rate review.

PN13

THE SENIOR DEPUTY PRESIDENT: Sorry, I have on my file an agreement in respect of which the statutory declaration has been sworn and I have read that agreement. That's the agreement according to the statutory declarations that was given to the employees.

PN14

MR HOULIHAN: That's right, that's absolutely right.

PN15

THE SENIOR DEPUTY PRESIDENT: I understand.

PN16

MR HOULIHAN: Now what I have further done then your Honour is this morning provided to your associate a document which is the identical agreement, save that it has been varied for the most recent minimum rate review.

PN17

THE SENIOR DEPUTY PRESIDENT: I wasn't too sure when that was coming up. I thought it might have been in August of this year.

PN18

MR HOULIHAN: Yes we decided to do it anyway and be done with it and your Honour I also gave to your associate a spread sheet that shows the routes that are detailed in the agreement that you have which shows, if I just look at the top of it, at grade six your Honour, Adelaide/Brisbane, there's a distance of 2015 kms at a speed of 90 kms, that's 22.39 hours. The hourly component is $21.41, that gives you that figure. There is an overnight allowance of 21.53, that is paid twice on that route. The award therefore comes through at 522.41 and the rate in the Wadley's agreement is 5.5. You can see in the final column on the right your Honour the difference between the Wadley's agreement and the award with the $17.00 in.

PN19

THE SENIOR DEPUTY PRESIDENT: $17.00?

PN20

MR HOULIHAN: On the award, yes your Honour.

PN21

THE SENIOR DEPUTY PRESIDENT: All right, I have prior to coming in today relied on the application as filed and the statutory declaration. There clearly was not a variation during the process that was being undertaken. What I understand here is that unilaterally the employee has decided to increase the rates in the enterprise bargaining agreement bearing in mind the likelihood that the Long Distance Drivers Award in the near figure is going to be increased.

PN22

MR HOULIHAN: That's a fair depiction of it your Honour, yes.

PN23

THE SENIOR DEPUTY PRESIDENT: I need to think about the consequences of all of that Mr Houlihan, but in any event I have here some documents that you've just described, I think I've got two copies of them. I had previously received some calculations and I had looked at those calculations and they were under cover of a fax dated 24 June. Now these documents you've given to me this morning are an up date on those, are they?

PN24

MR HOULIHAN: That's precisely the case your Honour.

PN25

THE SENIOR DEPUTY PRESIDENT: All right well I will mark these documents handed up this morning, I'll mark the 170LK(4) notice Wadley's 1.

EXHIBIT #WADLEY'S1 170LK(4) NOTICE

PN26

THE SENIOR DEPUTY PRESIDENT: And these documents Wadley's 2.

EXHIBIT #WADLEY'S2 SPREADSHEET AS DESCRIBED ABOVE

PN27

MR HOULIHAN: Your Honour we rely on the material that you have had before you in the file in terms of the application to certify the agreement. It seemed to us that it could be construed as being an attempt at being clever to seek to have the agreement made at this stage when everyone in the industry knows that there is a review of those rates coming shortly and we simply sort to demonstrate to your Honour that there would be no disadvantage for any of the Wadley employees when that change arises.

PN28

THE SENIOR DEPUTY PRESIDENT: Well that may well have some consequences Mr Houlihan. I was not aware of that additional development prior to coming here this morning so I need to think about it. I had considered the agreement as filed in the statutory declaration.

PN29

MR HOULIHAN: Well that's what we rely on your Honour.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes I understand.

PN31

MR HOULIHAN: Your Honour we would seek that given the comparison that your Honour has had since mid June of the rates across the routes travelled, given the fact the employees have been properly advised in relation to their rights under section 170LK of the Act, given that 10 of the 15 voted in favour in a secret ballot, we would ask that the Commission certify the Wadley's agreement as filed with the Commission on 31 May.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes. I should probably mark so that it is clear what these various documents are, the copy of the agreement provided to me this morning which has been described by you that will be Wadley's 3.

EXHIBIT #WADLEY'S3 COPY OF AGREEMENT

PN33

MR HOULIHAN: So your Honour is the spread sheet that I put to you Wadley's 2, is it?

PN34

THE SENIOR DEPUTY PRESIDENT: Correct. Yes, all right, is that all you want to say?

PN35

MR HOULIHAN: Yes it is your Honour.

PN36

THE SENIOR DEPUTY PRESIDENT: Obviously with the various matters raised if I have any difficulties consistent with the Act I will alert you in advance of making any final determination on it. May I confirm that the workforce is one casual employee and fourteen full time.

PN37

MR HOULIHAN: Yes your Honour.

PN38

THE SENIOR DEPUTY PRESIDENT: I think that's best this morning Mr Houlihan, as I say I was prepared for a different exchange that what might now arise out of the various developments you've addressed this morning, so I think that - - -

PN39

MR HOULIHAN: Well the calculations this morning would have given real concern to me that the no disadvantage test was reached. For the purposes of looking at the award which clearly does not allow for trip rates I undertook the same calculations on a cents per kilometre basis, an hourly basis. The major capital city trips were undertaken by way of calculations and almost without exception the agreement as filed would not have passed the no disadvantage test. I now know you've updated it, I will look at that calculation and see if I come to the same conclusion. If I do I will alert you and if I don't and if there are no other matters of significance the agreement will be certified but I suspect there will be some matters of concern to me, Mr Houlihan.

PN40

MR HOULIHAN: Can I just draw your attention your Honour to the way the overnight allowances have been calculated.

PN41

THE SENIOR DEPUTY PRESIDENT: Yes.

PN42

MR HOULIHAN: I think you will find that the overnight allowances are significantly more generous than the award requires.

PN43

THE SENIOR DEPUTY PRESIDENT: Yes I understand, well I can certainly see them on the document I've marked as Wadleys 2 but I will give some further consideration now to this Mr Houlihan and just let you know what my decision is as soon as possible.

PN44

MR HOULIHAN: Thank you your Honour.

PN45

THE SENIOR DEPUTY PRESIDENT: The Commission will now adjourn.

ADJOURNED INDEFINITELY [10.21am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #WADLEY'S1 170LK(4) NOTICE PN26
EXHIBIT #WADLEY'S2 SPREADSHEET AS DESCRIBED ABOVE PN27
EXHIBIT #WADLEY'S3 COPY OF AGREEMENT PN33