AG2003/10507, Transcript of Proceedings [2004] AIRCTrans 319 (23 January 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 8798

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON

AG2003/10507

CONCILIATION IN RESPECT OF
AGREEMENTS

Application under section 170NA(1) of the Act
by the Transport Workers Union re negotiation
of a proposed agreement

SYDNEY

9.07 AM, FRIDAY, 16 JANUARY 2004

Continued from 19.12.03

PN79

THE SENIOR DEPUTY PRESIDENT: Are there any changes to the appearances in this matter?

PN80

MR G. NIGHTINGALE: Yes, your Honour, with me today I have MR C. HEUSTON from the Transport Workers Union, our legal department.

PN81

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Nightingale.

PN82

MR GEEVES: Senior Deputy President, today the Manager, Mr de Mello is ill and I have with me, Mr G. MASSINGHAM and MS F. BUCKSATH.

PN83

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Geeves. I have commenced this report back today on transcript, so that you might both have an opportunity to inform me what has occurred since 19 December when the matter was before me last. Shall I start with you, Mr Nightingale?

PN84

MR NIGHTINGALE: Thank you, your Honour. Resulting from the conciliation before yourself on 19 December 2003 it was suggested that we meet with the company prior to this report back, that has happened on 13 January 2004 this year. The company finally provided a written position regarding negotiations and during the course of discussions of that meeting on 13 January there was some interesting positions that arose. We may cover them if we go off the record or would you like me to highlight some of the positions?

PN85

THE SENIOR DEPUTY PRESIDENT: It's really up to you, Mr Nightingale, I'm interested to know whether this matter is moving forward, what you now propose will happen today.

PN86

MR NIGHTINGALE: Your Honour, I'll just cover a couple of the issues, it was confirmed that the drivers at Newton Road, some 16 drivers were employees of Tricart, the company believed that they had taken over the Caltex, Caltex Petroleum Distributors had taken over Tricart in June 2003 but from our information that is incorrect and it was June 2002 that they were taken over.

PN87

THE SENIOR DEPUTY PRESIDENT: You are going to have to assist me there, how does Tricart fit into this dispute?

PN88

MR NIGHTINGALE: Tricart was a family business run by the Massingham's and it was trading as Metropolitan Fuel Distributors.

PN89

THE SENIOR DEPUTY PRESIDENT: That's a name I was familiar with on the last occasion.

PN90

MR NIGHTINGALE: In June 2002 they were the employees and they were taken over by Caltex Petroleum Distributors and letters confirming that were sent to all the drivers that they would be covered under a new employee which was Caltex Petroleum Distributors, still trading as Metropolitan Fuel Distributors. It was confirmed that Caltex Petroleum Distributors have recently registered two Federal agreement, it's not clear whether they were Australian Workplace Agreements or Enterprise Agreements but it has been confirmed that one was in Victoria and another one covered drivers for the Canberra/Goulburn, the rural area of New South Wales. That is all I'd like to put on record at this stage, other that we are still probably no closer to forming an agreement and - - -

PN91

THE SENIOR DEPUTY PRESIDENT: Have they put a proposal to you or vice versa?

PN92

MR NIGHTINGALE: We've written back in response asking for some schedules. It is obvious that they want to reduce the incentive pay from the 10 per cent. It was raised that that 10 per cent pay that the drivers have received for some four years is an all purpose and the company are quite surprised or Mr Colin Geeves was surprised that it was an all purpose incentive bonus, the company had been trying to replace that bonus with a 35-hour week base onus and at a lesser rate. So during our negotiations the company have always stated they did not want to reduce any of our wages and conditions but now I believe the parties must be in some agreement that it is obvious.

PN93

So we have asked for schedules and comparisons and some tables to actually show us what these figures are. So that was our correspondence to the company dated 15 January this year. Thank you, you Honour.

PN94

THE SENIOR DEPUTY PRESIDENT: Yesterday?

PN95

MR NIGHTINGALE: I'll just correct that, on 14 January we responded to the company.

PN96

THE SENIOR DEPUTY PRESIDENT: All right, it just seemed that nothing happened between 19 December and 13 January, I'm wondering what we are going to achieve with a report back today when little has occurred - - -

PN97

MR NIGHTINGALE: I was on annual leave.

PN98

THE SENIOR DEPUTY PRESIDENT: That's all right, that's completely understandable, I just wondered why we were having a report back so hot on the heels happening at all but so be it.

PN99

MR NIGHTINGALE: Also, there was the issue of the AWAs, the company believed that out of the 16 drivers approximately eight were covered under AWAs but it was confirmed that all the drivers, the 16 drivers were employed under the same arrangements, the same agreement as the ones who signed the AWAs and it was also that the TWU relies on the Transport Workers Oil Distribution Award (2001) and the eight AWAs, they were to cancel them on 9 January, was another reason for the report back.

PN100

THE SENIOR DEPUTY PRESIDENT: I see and from your understanding, what happened on 9 January?

PN101

MR NIGHTINGALE: I've not confirmed if they have been, maybe Mr Geeves can confirm that here today.

PN102

THE SENIOR DEPUTY PRESIDENT: All right, thank you. Mr Geeves?

PN103

MR GEEVES: Senior Deputy President, in the broad I agree with what Mr Nightingale has said, not the detail. We wrote to the Transport Workers Union on 23 December following before yourself and the purpose of that letter which was sent by facsimile was to ensure that our position was set out correctly and to move away from a lot of rhetoric that we had been subject to at that last hearing concerning the union involvement. We received a response to that on 14 January and I think it would help the Commission if I tender that as an exhibit.

PN104

THE SENIOR DEPUTY PRESIDENT: You have copies of these documents I image, Mr Nightingale?

PN105

MR NIGHTINGALE: Yes, your Honour.

PN106

MR GEEVES: Senior Deputy President, there are two documents stapled together, one is from the company and one is from the Transport Workers Union.

PN107

THE SENIOR DEPUTY PRESIDENT: I'll mark them together as a bundle, they will become Caltex 1.

EXHIBIT #CALTEX 1 BUNDLE OF DOCUMENTS

PN108

THE SENIOR DEPUTY PRESIDENT: I will just read these. Yes, thank you.

PN109

MR GEEVES: Your Honour, following that letter and the vacation period, we did meet with Transport Workers Union as Mr Nightingale has indicated. I have to report that that meeting did not achieve a great deal. I think I can sum it up like this - the company, that is CPD, Caltex Petroleum Distributors, is made up of a number of trading companies of which MFD is one. The other companies within the CPD group are either paid on the award itself or above the award on registered agreements. They are LK agreements, 170LK agreements. The administration of all of these various companies is currently being centralised and it is clearly within the company's interests and one of its objectives, to ensure that there is reasonable standardisation across the whole of CPD.

PN110

The difficulty we have in these negotiations is that the employees of Tricart, now MFD, are significantly above those in the remaining companies within CPD. By significant I mean upwards of 20 per cent, 25 per cent. We have recognised that each company is unique and we are prepared to accommodate variations between companies, thus for example, one company Barry Petroleum in Canberra, is a higher rate than Access Fuels and Energy in Victoria because it takes into account pre-existing arrangements. In the same way, we are prepared to accommodate MFD drivers, however, what is terribly important to CPD is that eventually we get some form of standardisation.

PN111

Now, the fundamental problem that confronts us is this, we have a claim for an increase in long service leave by 33 - in fact 50 per cent. We have a claim for wage increases to increase by five per cent and we have a bonus system which, under any definition, does not operate as a bonus system. It is paid beyond even what the agreement says for all purposes and that represents 10 per cent. It is lost from time to time. Now, how we get to a position where we can get some form of standardisation is quite a dilemma. We feel that it is not possible to negotiate increased rates and our efforts at this stage are trying to work out how we can maintain a reasonable level for the drivers so that eventually they match the other drivers within the group.

PN112

Because of those two fundamental differences, this negotiation is really stalemated and it is going to be very difficult to reconcile. Now, if I can just put two other things that you should be aware of. We have been advised by the Transport Workers Union that on their legal advice, the AWA has in fact ceased to exist.

PN113

THE SENIOR DEPUTY PRESIDENT: These are the eight AWAs?

PN114

MR GEEVES: Yes. We are not totally convinced on that, so what we will move to do is to formally cease them. At this stage we have not reduced any wages and we will continue to negotiate. Based on the letter received from the TWU, we will endeavour to put together a schedule. This has been made difficult this week because the Manager, as I have indicated when announcing appearances, has been ill. I have been unable to consult with him. We'll put together a schedule which clearly explains the wage increases as best we can anyway, that we are proposing.

PN115

I think it is reasonable to say that what we want to do is phase out the bonus arrangements as they exist and replace them with some other bonus arrangement that truly represents a performance typing system. We want to come to a standard sort of base pay and, preferably we would like to go to an hourly rate of pay, which is becoming very common in our industry and is common to other parts of our company. So your Honour, what I can say now is there is probably room for one more meeting when we can put together some sort of schedule. I am not hopeful that we will get agreement but that I think is a fair report back to you.

PN116

I do need to make one other comment. There is a suggestion that we are asking for a standard working week of 42 hours. I just want to - and you will find that in the TWU response - I want to hit that on the head. That's not correct. We were seeking to use 42 hours as a possible means of developing an hourly pay concept. No other reason. We would continue to use 35 as the minimum hours.

PN117

THE SENIOR DEPUTY PRESIDENT: Well, that makes sense. Presumably there being an award against which any "no disadvantage" test would ever have to be performed so, yes thank you.

PN118

MR GEEVES: Thank you.

PN119

THE SENIOR DEPUTY PRESIDENT: Mr Nightingale, what do you want to do now? Is there anything you wish to respond to and have transcribed or do you wish to adjourn into conference or something else?

PN120

MR NIGHTINGALE: No, I think we'll be going to conference your Honour. That's fine with me.

PN121

THE SENIOR DEPUTY PRESIDENT: We'll now adjourn.

NO FURTHER PROCEEDINGS RECORDED [9.23am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CALTEX 1 BUNDLE OF DOCUMENTS PN108