C2004/360, Transcript of Proceedings [2004] AIRCTrans 4903 (14 December 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

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

TRANSCRIPT OF PROCEEDINGS


O/N 9335
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER TOLLEY

C2004/360

TRANSPORT WORKERS' UNION
OF AUSTRALIA

and

PIAVE PREMIX CONCRETE

Notification pursuant to section 99 of the Act
of an industrial dispute re alleged non payment
of top up insurance

MELBOURNE

10.07 AM, FRIDAY, 3 DECEMBER 2004

PN1

MR B. DUNN: Transport Workers' Union.

PN2

MR L. CREMA: Piave Concrete.

PN3

THE COMMISSIONER: What is the problem, Mr Dunn?

PN4

MR DUNN: If the Commission pleases, it is about the non-payment of top up insurance for our member at Piave Concrete. In our EBA it states that the Piave Premix Concrete will take out an income protection with a top up, and at this stage the company haven't got an income protection policy. If I could pass up our EBA, if you could just go - - -

PN5

THE COMMISSIONER: You have got of that with you, Mr Crema?

PN6

MR CREMA: Yes.

PN7

MR DUNN: Thank you. Page 4. If you would just go to page 4.

PN8

THE COMMISSIONER: You are talking about clause 7, page 4?

PN9

MR DUNN: Yes. Yes, Commissioner.

PN10

THE COMMISSIONER: Yes.

PN11

MR DUNN: The income protection - and it is signed off in 2001:

PN12

The income protection policy will be taken out to contribute of gross pay for the top up of 1.3 per cent per member to provide top up insurance cover.

PN13

At this stage we haven't got a policy, and our argument is that the company are only paying him his base rate whilst he is on WorkCover, and we are saying that he has to have his gross pay prior to his injury. I have also brought in - part of our argument is the definition of "gross". I would like to pass that - - -

PN14

THE COMMISSIONER: I don't need to see that.

PN15

MR DUNN: Now, I have been down to Piave Concrete on four or five occasions trying to - with Mr Crema. I am trying to sort this out for our member, and Mr Crema has asked that somewhere along the line an umpire, someone rule to state that he has to pay the top up, which is the pre-injury. If you go to any top up insurance policy it says - I have one policy here from an insurance company and it says:

PN16

WorkCover top up. WorkCover top up insurance covers the difference between the compensation payable under WorkCover or similar legislation and your average gross earnings, up to a maximum of $1500 a week for 104 weeks.

PN17

Our argument is that Premix Concrete - Piave Premix concrete are only paying him his base 38 hour week, and not his pre-injury of his - at the stage we are arguing he was getting $661 a week for his normal hours. We were arguing at the time that he should have been getting $883, less tax.

PN18

There have had an increase since because of the - the EBA has forwarded an increase from 1 November 2004. But we are arguing that he is - our member isn't getting paid his top up insurance.

PN19

THE COMMISSIONER: Yes. Thank you. Mr Crema?

PN20

MR CREMA: We believe that we should be paying him his normal week pay prior to injury.

PN21

THE COMMISSIONER: Well, can we just - - -

PN22

MR CREMA: For a 38 hour week - - -

PN23

THE COMMISSIONER: Can we just put that aside for a moment?

PN24

MR CREMA: Yes.

PN25

THE COMMISSIONER: Has your company, in accordance with the EBA, got a top up and accident policy?

PN26

MR CREMA: No.

PN27

THE COMMISSIONER: Why not?

PN28

MR CREMA: Well, we actually - it was an oversight from our part. That was in the EBA actually.

PN29

THE COMMISSIONER: Well, yes. I know it is in the EBA. It is there. It says so in black and white.

PN30

MR CREMA: Yes. We are aware of that.

PN31

THE COMMISSIONER: Well, why haven't you done that?

PN32

MR CREMA: Because it wasn't until Brian brought it up to us when this started that we were aware that it was in there.

PN33

THE COMMISSIONER: Well, who from your company signed the EBA?

PN34

MR CREMA: Myself.

PN35

THE COMMISSIONER: Did you receive any advice from an employers organisation or anyone else?

PN36

MR CREMA: No.

PN37

THE COMMISSIONER: Well, you just can't say "I suddenly realised it was in the EBA and I haven't done anything about it."

PN38

MR CREMA: No, no. We have done something about it. We have spoken to a couple - - -

PN39

THE COMMISSIONER: Because - Mr Crema?

PN40

MR CREMA: Yes.

PN41

THE COMMISSIONER: Let me finish talking. I rule the roost here. You may have done something about it now. You just can't sign things and use the excuse later on you weren't aware, or you had forgotten it was there, because you are liable. Do you understand that?

PN42

MR CREMA: Yes.

PN43

THE COMMISSIONER: And I am telling you that for your own information, not to be critical at this moment. Now, in respect to the top up pay, it is generally on the gross rate, Mr Crema. Not on the base rate.

PN44

MR CREMA: Sorry?

PN45

THE COMMISSIONER: He is entitled to be topped up to what his gross rate - gross normal earnings rate was. Not the base rate of pay.

PN46

MR CREMA: Well, his normal weekly pay, or his normal weekly pay including overtime?

PN47

THE COMMISSIONER: His normal weekly pay including overtime, if the overtime is regular.

PN48

MR CREMA: Well, we believe it doesn't say that there.

PN49

THE COMMISSIONER: Well, I am going to tell you you are wrong, because that is what the policies say.

PN50

MR CREMA: Well, according to the insurance companies we spoke to it depends on - - -

PN51

THE COMMISSIONER: Which insurance companies?

PN52

MR CREMA: A couple that Brian recommended to us that are approved from the TWU.

PN53

THE COMMISSIONER: Where is a copy of your insurance policy?

PN54

MR CREMA: We haven't got one for this.

PN55

THE COMMISSIONER: Well, you don't - well, you haven't got a ..... insurance cover.

PN56

MR CREMA: Yes, that is right.

PN57

THE COMMISSIONER: Well, you just told me you did have. You just told me you have got one now.

PN58

MR CREMA: No, no.

PN59

THE COMMISSIONER: I want - - -

PN60

MR CREMA: No.

PN61

THE COMMISSIONER: Mr Crema, I want you to just take a moment and read the whole of clause 70 yourself.

PN62

MR CREMA: Yes.

PN63

THE COMMISSIONER: Okay? Now, in (ii) I want you to read out aloud what it says.

PN64

MR CREMA:

PN65

...contribute of gross weekly pay of 1.3 per cent per week per member to provide top up insurance cover.

PN66

THE COMMISSIONER: So you haven't got top up insurance cover?

PN67

MR CREMA: No.

PN68

THE COMMISSIONER: Well, you are in breach of the EBA.

PN69

MR CREMA: Yes.

PN70

THE COMMISSIONER: You can do the things - you can fix it up now or I can remit the matter to the Federal Court.

PN71

MR CREMA: Pardon?

PN72

THE COMMISSIONER: Or the matter can go to the Federal Court.

PN73

MR CREMA: No. We will fix it up. Yes.

PN74

THE COMMISSIONER: You will - and you see, it says in (i) and (ii) - - -

PN75

MR CREMA: Yes.

PN76

THE COMMISSIONER: - - - you can - your contribution is based on gross weekly pay.

PN77

MR CREMA: Yes.

PN78

THE COMMISSIONER: Gross weekly pay includes overtime that is regular overtime. I acknowledge that overtime often goes from there to there.

PN79

MR CREMA: Yes.

PN80

THE COMMISSIONER: But there is a level across a year - the year.

PN81

MR CREMA: Yes.

PN82

THE COMMISSIONER: And that is the average you look at.

PN83

MR CREMA: The average of?

PN84

THE COMMISSIONER: The overtime. For the - on top of the ordinary wages.

PN85

MR CREMA: Over the year?

PN86

THE COMMISSIONER: Yes. That is how you work out gross weekly pay. I don't care what anyone else has told you. That is how you do it. Now, Mr Dunn says he believes he should have been getting $883 on the basis of $883 tax, which is the top amount. What do you say the top amount should be?

PN87

MR CREMA: The difference between what we get from WorkCover and what his normal weeks pay is.

PN88

THE COMMISSIONER: Yes. Well, his normal weeks pay is a gross amount.

PN89

MR CREMA: Depending whether he does overtime or not.

PN90

THE COMMISSIONER: How much overtime do you people do?

PN91

MR CREMA: Pardon?

PN92

THE COMMISSIONER: How much overtime does he do?

PN93

MR CREMA: It varies from day to day.

PN94

THE COMMISSIONER: And before I came to this place, I had better warn you, I worked as an employee in the road transport industry, and prior to that I worked as a union official, for a while. It was many years. When I first came to this Commission I dealt with the building industry, so I am aware of the use of agitator trucks, and their frequency on overtime.

PN95

MR CREMA: Yes, that is right. Yes.

PN96

THE COMMISSIONER: Okay. So don't tell he does just a bit of overtime during the year.

PN97

MR CREMA: No, no, but it varies.

PN98

THE COMMISSIONER: He would be doing - he would be - - -

PN99

MR CREMA: It varies. The amount varies from day to day.

PN100

THE COMMISSIONER: Yes. But he would be - over the year, as an average, he would be doing a lot more overtime than the average worker.

PN101

MR CREMA: Possibly. Yes.

PN102

THE COMMISSIONER: In other industries. Yes. And you have got his wages sheets, the spreadsheet?

PN103

MR CREMA: Yes.

PN104

THE COMMISSIONER: Fairly easy to work out, isn't it?

PN105

MR CREMA: What his average is?

PN106

THE COMMISSIONER: Yes.

PN107

MR CREMA: Yes.

PN108

THE COMMISSIONER: Yes. Well, you better do that. Okay? You had better get that insurance policy with a top up component, tout de suite.

PN109

MR CREMA: Mm.

PN110

THE COMMISSIONER: In fact, within the seven days from today's date.

PN111

MR CREMA: Yes. That is okay.

PN112

THE COMMISSIONER: Okay? Within seven days of today's date, Mr Dunn, you will contact my chambers and you tell me this matter has been resolved.

PN113

MR DUNN: Yes, Commissioner.

PN114

THE COMMISSIONER: If it is not resolved, the matter will be called back on again, and I won't be smiling because it is Friday. All right?

PN115

MR DUNN: Thank you, Commissioner.

PN116

THE COMMISSIONER: Good morning, gentlemen. Enjoy the weekend. It is going to be wonderful weather anyhow, and I hope you get plenty of work, Mr Crema, because that means you are going to employ people. Good morning.

PN117

MR CREMA: Sir.

PN118

THE COMMISSIONER: The Commission is adjourned.

PN119

MR DUNN: Thank you, Commissioner.

ADJOURNED INDEFINITELY [10.17am]