C2004/4514, Transcript of Proceedings [2004] AIRCTrans 2885 (27 July 2004)

AUSCRIPT PTY LTD
(Administrator Appointed)
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS


O/N 7883

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER MANSFIELD

C2004/4514

TRANSPORT WORKERS'
UNION OF AUSTRALIA

and

TRANSWEST HAULAGE
PTY LIMITED

Application under section 170LW of the Act
for settlement of dispute re parties bound
and the alleged intention of the company
to introduce a seven-day roster

MELBOURNE

9.59 AM, FRIDAY, 16 JULY 2004

PN1

MR H. SMITH: I appear for the Transport Workers' Union. Immediately to my right is MR A. WOOD, the area organiser and to his right again is MR C. BLUNDEN, one of the consultative committee members from Transwest.

PN2

MS A. WATT: I seek leave to appear as a solicitor for Transwest Haulage. I seek to appear with MR J. BEATON from Transwest.

PN3

THE COMMISSIONER: Thank you. Ms Watt, are you an employee of Transwest, just by the way, or are you a legal representative?

PN4

MS WATT: I am a legal representative.

PN5

THE COMMISSIONER: Any objection to an appearance by Ms Watt, Mr Smith?

PN6

MR SMITH: Yes, Commissioner, you probably won't be surprised.

PN7

THE COMMISSIONER: Mr Smith, before you go into your quite proper submission on representation, can I just say we will adjourn the application for Ms Watt's appearance on behalf of Transwest for the time being. I do expect, Ms Watt, there is not going to be any legal argument in this matter, but let us cross that bridge when we get to it and I propose to at this stage allow Ms Watt to remain in the Court, speak on behalf of Transwest in any particular matter and I will indicate to the parties that I will shortly be proposing to go into conference to see if we can resolve this matter and we will handle the appearance issue at a later time.

PN8

MR SMITH: Thank you, Commissioner. The only question I would ask is I am not sure who the other gentleman is sitting in the Court. He may be an employee.

PN9

THE COMMISSIONER: I think he is a Transwest person.

PN10

MR K. SANDERSON: Yes, I manage the fuel division.

PN11

THE COMMISSIONER: Thank you.

PN12

MR SMITH: Thank you, Commissioner.

PN13

THE COMMISSIONER: Now, this is a notification of a dispute under section 170LW of the Workplace Relations Act which goes to matters arising out of an enterprise agreement. It is a notification by the Transport Workers' Union of Australia. I did receive late yesterday information from the Transport Workers' Union relating to the issue which involves the introduction of a seven-day roster, I think, at Transwest and the payments that should be made to drivers for working on Sunday. I think this is the issue, Mr Smith.

PN14

MR SMITH: Correct.

PN15

THE COMMISSIONER: Good. Would you like to give us an outline, Mr Smith, of where the matter is, because in your correspondence, I think you have indicated that you have had quite extensive discussions with the company and have been unable to resolve the matter and therefore you are bringing it here under the terms of the enterprise agreement. Yes.

PN16

MR SMITH: Yes, those discussions took place before you mainly, Commissioner, pursuant to an 170MH application and it was determined as a result of those discussions that we would resolve the rest of the agreement and have that matter that could not be dealt with, which was the Sunday rosters, come back here pursuant to 170LW. What I have tried to do for the ease of the Commission and in as simple a way as possible and supply information which includes the Oil Distribution Award rates of pay that will apply from 15 August is show to at least equal the award rate of pay for Sunday work, the employees for a grade six, if you go to the fourth paragraph.

PN17

THE COMMISSIONER: I take it that the company has a copy of this document, Mr Smith.

PN18

MS WATT: Yes, Commissioner.

PN19

THE COMMISSIONER: So we go to the fourth paragraph?

PN20

MR SMITH: Yes, the semi-trailer driver of grade six would need to get 30.2 per cent just to equal the award. To get to the award rate of pay, you go to 16.2 - - -

PN21

THE COMMISSIONER: What basically is the claim, Mr Smith?

PN22

MR SMITH: Well, what we are saying, we are really given two choices there, if you go to it, that in the agreement there is a base rate and I am talking just to a grade six, but the arguments apply equally to a B double. The semi-trailer driver, the base rate of pay of the agreement is 754.52. If you were to divide that by 35, because this is a 35 hour award and then double that, it would give you a rate of $43.12.

PN23

THE COMMISSIONER: So is it your argument that the Sunday work ought to be paid for at double time?

PN24

MR SMITH: We are saying loud and clear that the employees should be no worse off than if they were under the award and, in fact, should be better off because they have an enterprise agreement. It is unusual that any enterprise agreement would leave you worse off for work.

PN25

THE COMMISSIONER: Yes, but your argument, then, is that the appropriate rate of pay on a Sunday for people who are rostered for normal duty should be 100 per cent extra penalty, or is it more than that?

PN26

MR SMITH: No, what I am saying is they should be no worse off than the award rate of pay.

PN27

THE COMMISSIONER: And what would that achieve for them?

PN28

MR SMITH: Over what they have got at the moment?

PN29

THE COMMISSIONER: No, over the standard hourly rate.

PN30

MR SMITH: Of their agreement or of the award?

PN31

THE COMMISSIONER: Of the agreement?

PN32

MR SMITH: The minimum they would have to get is 30 per cent of their common hourly rate.

PN33

THE COMMISSIONER: Okay, they get a common hourly rate. On top of that, they would get another 30 per cent.

PN34

MR SMITH: If they get 20 per cent, then they are worse off than they would be under the award.

PN35

THE COMMISSIONER: Okay, so you are seeking a 30 per cent - - -

PN36

MR SMITH: No, we are seeking - we are giving the Commission and the parties some options, okay?

PN37

THE COMMISSIONER: Yes, and the two options - - -

PN38

MR SMITH: Come in with just a one option, leaving the Commission and the parties nowhere to go. What we are saying is that basically you can go to the base rate of the agreement, which is not the common hourly rate of the agreement, divide that by 35, get your hourly rate and double that or we can go to the agreement. I have equated the 30 per cent, get at least equal to the award rate of pay and again we are talking about a grade six and similar arguments will apply to the B doubles.

PN39

You have got to get 30 per cent to equate to the award rate of pay for Sunday work and then what we are saying is on top of that, they deserve some recognition and I am looking for the words right now as I talk to you, Commissioner, but in the agreement it talks about a 10 per cent component as a disability allowance, to allow for irregular starting times, shift penalties, etcetera. That will put another 10 per cent on, so the minimum that they should get for that Sunday work should, in fact, be 40 per cent of the common hourly rate.

PN40

THE COMMISSIONER: Right, 40 per cent, that is one option?

PN41

MR SMITH: That is one option and the other option is that they go to the base rate of the agreement and they get double the hourly rate for the base rate in the agreement and one will give you a $39.84 outcome per hour. Double the base hourly rate will give you $43.12 per hour and the same logic is then used for the B doubles. It is my understanding that there is some four B doubles in the company's fleet.

PN42

THE COMMISSIONER: And what is the company paying right now, Mr Smith?

PN43

MR SMITH: They are not doing the work, I don't think, and therefore - - -

PN44

THE COMMISSIONER: Well, what is the company proposing to pay?

PN45

MR SMITH: They haven't proposed anything, Commissioner.

PN46

THE COMMISSIONER: There is no proposal on the table as yet? There may well be, but I will come to that.

PN47

MR SMITH: All they have proposed previously is to pay the common hourly rate. It is my understanding that there is four B doubles in two classifications, but although there is only one size B double recognised by the agreement, we are using the same logic there. The only difference is they have got to get 29 per cent to match the award, to about one per cent difference. To get 40 per cent and there is a mistake there, too, Commissioner, to get 40 per cent of common hourly rate, they would need to get 42.10 per hour. Did you pick up that mistake, Commissioner?

PN48

THE COMMISSIONER: I doubt if I have at the moment, Mr Smith.

PN49

MR SMITH: The last word on that second last paragraph, should be per hour, not per year.

PN50

THE COMMISSIONER: Yes.

PN51

MR SMITH: To get double the base rate of the agreement, they would get 45.56 per hour, Commissioner.

PN52

THE COMMISSIONER: Mr Smith, under the award, if a person works a Sunday as part of normal duty, what is the basic - - -

PN53

MR SMITH: That is what I was just being reminded of, Commissioner. If they work a Sunday, it is 100 per cent.

PN54

THE COMMISSIONER: A hundred per cent extra on standard rates?

PN55

MR SMITH: Yes.

PN56

THE COMMISSIONER: And what you say is you have had discussions with the company on this matter and you haven't been able to reach agreement.

PN57

MR SMITH: Extensive discussions before this Commission on previous occasions under another application, Commissioner.

PN58

THE COMMISSIONER: Yes, okay. Anything else to add at this stage, Mr Smith?

PN59

MR SMITH: I don't think so. I assume that you may take this into conference at some stage as well.

PN60

THE COMMISSIONER: Yes, I would think so at this stage, but what I think the agreement proposes and I think you have referred to this in your document is that if the matter cannot be resolved by agreement, it will be arbitrated.

PN61

MR SMITH: Correct.

PN62

THE COMMISSIONER: So the parties have agreed if you can't agree between yourselves, you will bring it to the Commission and we will arbitrate it and give you an answer?

PN63

MR SMITH: 3(b) of the agreement sets that out, Commissioner.

PN64

THE COMMISSIONER: Yes, I have got that. Good, Mr Smith, thank you. We will see what the company has got to say for a start. Ms Watt.

PN65

MS WATT: Thank you, Commissioner. Just by way of background, just to remind the Commission that Transwest is a principal supplier to Shell.

PN66

THE COMMISSIONER: Yes.

PN67

MS WATT: It has four tankers, B doubles, and five of the tri-axle vehicles. They are 45 tonnes. This will become important later in looking at the rates and the B doubles are 68 tonne vehicles. It is very important in terms of our contractual arrangements with Shell that in considering this issue, the company does its best to try and neutralise the cost of moving to compulsory Sunday pm shifts and we are required to do that by Shell, so, Commissioner, if you were to go back to the recently certified certified agreement, the issue about whether or not Sunday pm shifts are compulsory is decided. Shell requires us to do that.

PN68

THE COMMISSIONER: Yes.

PN69

MS WATT: In the past, you may recall that the pm shifts on Sunday have been worked voluntarily at the company and approximately 95 per cent of the time there is no problem with that, but the fact is we are now required to have compulsory shifts and, for instance, over the Queen's Birthday weekend, we couldn't fulfil our obligations. We couldn't get enough of the drivers in, so that is why we are here today. In brief, the company's contention will be that industry practice in terms of our main competitors, Coots, for instance, who provides the back-up contractual work for Shell with Transwest. Linfox is another example. In terms of certified agreements, the standard seems to be 20 per cent on top of the common hourly rate and the company I think had raised that as a possible option during its discussions with the union.

PN70

THE COMMISSIONER: Yes.

PN71

MS WATT: In terms of the maths of this issue, in terms of it being approximately 30 per cent to come in with the award, we think that is correct.

PN72

THE COMMISSIONER: Ms Watt, just before you go on with this very useful explanation, but just to refresh my memory again, as I recall, the individuals who volunteered for Sunday were getting 20 per cent on top of the common hourly rate.

PN73

MS WATT: No, there was no extra payment.

PN74

THE COMMISSIONER: There was no extra payment?

PN75

MS WATT: No loading.

PN76

THE COMMISSIONER: No loading? Okay, thank you.

PN77

MS WATT: And that was contemplated in the previous EBA. It talked about it being done on a voluntary basis and that is actually an important point to make, that it has been done on that basis, so we have no issue with Mr Smith's calculations in terms of the equivalency with the award as at 15 August of this year. The safety net adjustments go through. I will just flag to you that we do have an issue about the 40 per cent calculation.

PN78

THE COMMISSIONER: Yes.

PN79

MS WATT: If we were to go to the agreement and you were to look at the calculation of the common hourly rate, that disability component is already built in to the common hourly rate, so in terms of my maths, it looks like it has been counted twice.

PN80

THE COMMISSIONER: That wouldn't be true, Mr Smith, would it? You wouldn't count anything twice, would you?

PN81

MR SMITH: No, it is not. We are using the award - - -

PN82

THE COMMISSIONER: I wasn't inviting you to stand up at this stage, Mr Smith.

PN83

MR SMITH: - - - using that as some sort of benchmark.

PN84

THE COMMISSIONER: Okay, thank you. Ms Watt.

PN85

MS WATT: I don't mean to be offensive. I am a lawyer and they often say that lawyers have no idea about maths, so I will be clear about that.

PN86

MR SMITH: And, Commissioner, I am a union official. I have got a thick skin. I am not offended.

PN87

THE COMMISSIONER: I won't invite any more interventions.

PN88

MS WATT: I think I have really struck on the key points for you. I do have some certified agreements and some tables I could hand up to you, to assist you with the calculations, if that is helpful.

PN89

THE COMMISSIONER: Now, I think what is being said basically to me certainly by you, Ms Watt, and possibly also by Mr Smith, if I cast my mind back, is that really this matter is going to have to be arbitrated. Am I right?

PN90

MS WATT: Yes.

PN91

MR SMITH: You can't reach agreement?

PN92

MS WATT: That is correct.

PN93

THE COMMISSIONER: Well, I think we should probably get on with the arbitration, then, if that is the case and deal with this matter and then I can hand down a decision in due course. Now, Mr Smith, are you ready to present your material which would support your propositions for a higher penalty to apply for compulsory shifts? Ms Watt is saying basically that the company believes that an amount of 20 per cent on top of the common hourly rate is an appropriate level of penalty.

PN94

MR SMITH: Well, the answer to that, Commissioner, is yes and no. Our submission basically is set out in what we have already supplied you.

PN95

THE COMMISSIONER: Yes.

PN96

MR SMITH: We are at a disadvantage because we have had nothing back from the company. The matter of 20 per cent has been discussed previously and that was on the basis that employees should be paid the 20 per cent for volunteering to work on the Sunday and clearly here we are talking about compulsory rosters and if they are compulsory rosters, we would argue that a greater amount should be paid.

PN97

THE COMMISSIONER: Yes, good. Now, I propose just to go off the record for a moment.

NO FURTHER PROCEEDINGS RECORDED