AG2003/10374, Transcript of Proceedings [2004] AIRCTrans 496 (6 February 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 3572

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DEEGAN

AG2003/10374

APPLICATION FOR CERTIFICATION OF AGREEMENT

Application under section 170LK of the Act
by O'Brien Transport Service Pty Ltd
for certification of the O'Brien Transport
Services Enterprise Agreement 2003

CANBERRA

10.44 AM, WEDNESDAY, 28 JANUARY 2004

PN1

MR P. SCHULZ: I seek leave to appear for O'Brien Transport Services Pty Limited and appearing with me is MR M. O'BRIEN, a director of the company, and MR R. HESS appearing as the employee representative.

PN2

THE COMMISSIONER: Right, thank you. Go ahead, Mr Schulz.

PN3

MR SCHULZ: Thank you, Commissioner. Certification of the O'Brien Transport Services Pty Limited Enterprise Agreement 2004 was sought under section 170LK of Division 2 of the Workplace Relations Act, noting that the agreement does not replace a previous agreement. The agreement contains clauses that provide for consultation with employees in the event of major workplace changes and for dispute resolution purposes.

PN4

Employment matters covered in the agreement also include an anti-discrimination clause to give effect to the objectives of paragraph 3(j) of the Act. Having regard to the no disadvantage test provided for in the Act, and in order to assist and demonstrate the agreement's overall compliance with section 170XA of the Act, I have prepared a comparison of the relevant major elements of the agreement and the nominated award, to demonstrate compliance and seek leave to hand that up.

PN5

THE COMMISSIONER: Marked S1.

EXHIBIT #S1 COMPARISON DOCUMENT OF RELEVANT MAJOR ELEMENTS OF AGREEMENT AND NOMINATED AWARD

PN6

MR SCHULZ: Additionally, the agreement provides for an increase between 5 and 10 per cent in the annual leave loading for employees employed for more than one year, and that was not shown in clause 6.4 of the statutory direction provided. If the Commission pleases, I will take you through that document now.

PN7

THE COMMISSIONER: Just go through it, Mr Schulz.

PN8

MR SCHULZ: Thank you, Commissioner. The table demonstrates that the weekly income outcomes of each of the driver classifications in the agreement is equivalent to or in excess of those provided for in the relevant award. Other than the addition of a 10 hour shift by agreement with local drivers, the agreement has not introduced any new conditions of employment that may have had an effect on the compliance with the no disadvantage test provided for in section 170XA of the Act.

PN9

In addition to the wage rates provided for, and as mentioned previously, and on certification, the agreement provides automatic annual wage increases through the application of the consumer prices index as they fall due in the agreement, and that will serve to maintain the parity between the agreement and awards at the date of certification.

PN10

Accordingly, apart from the matters that the Commission may wish to address, I now commend the agreement to the Commission for certification.

PN11

THE COMMISSIONER: All right. So how are O'Brien's Transport covered by the award, the Long Distance Drivers Award, Mr Schulz?

PN12

MR SCHULZ: They will say because a company called Graham O'Brien Transport, which is listed in the documentation, Commissioner - as a respondent, sorry.

PN13

THE COMMISSIONER: I see. And we are certain of that, are we?

PN14

MR SCHULZ: Yes, we are, Commissioner.

PN15

THE COMMISSIONER: So they are covered by the State award for all but long distance drivers, are they, Mr Schulz?

PN16

MR SCHULZ: That's correct.

PN17

THE COMMISSIONER: And the State award and the Long Distance Drivers Award, have got the same conditions?

PN18

MR SCHULZ: In particular, Commissioner, which conditions are we talking about? All conditions or - - -

PN19

THE COMMISSIONER: You tell me. Yes, all conditions. I note that - - -

PN20

MR SCHULZ: Well, the conditions outlined in the agreement are equivalent to or better than what is contained in the appropriate award for the classification of employee.

PN21

THE COMMISSIONER: So, the hours are the same in the State Transport Award and the State Long Distance Drivers Award?

PN22

MR SCHULZ: As contained in the agreement, in comparison, yes, Commissioner. In the Long Distance Drivers Award there is no spread of hours, as you are probably aware.

PN23

THE COMMISSIONER: So, are these people one or the other, or do they change - the drivers - - -

PN24

MR SCHULZ: As a classification of whether they're long distance and - - -

PN25

THE COMMISSIONER: Yes.

PN26

MR SCHULZ: Perhaps I could - Mr O'Brien could you - - -

PN27

THE COMMISSIONER: Perhaps you could, perhaps Mr O'Brien will tell me.

PN28

MR M. O'BRIEN: No, I guess they would all be on the one.

PN29

MR SCHULZ: Yes. So a long distance driver is a long distance driver and a local driver is a local driver, or do they swap? That's what - - -

PN30

MR O'BRIEN: Yes.

PN31

MR R. HESS: Yes.

PN32

MR SCHULZ: "Yes" to which? "Yes", are the same?

PN33

MR O'BRIEN: All be the same. They're all the same. It won't matter. There won't be no difference. They'll be all paid the same. We don't want to - - -

PN34

MR HESS: They'll be all the same.

PN35

MR SCHULZ: Yes, but that's not the question. If a person is a long distance driver - - -

PN36

THE COMMISSIONER: I'm interested in that, Mr Schulz.

PN37

MR SCHULZ: Sorry.

PN38

THE COMMISSIONER: So they are all being paid the same, are they? How are we being paid, by the kilometre or a weekly wage?

PN39

MR O'BRIEN: No.

PN40

MR SCHULZ: Well, you can't give long distance drivers a kilometre rate.

PN41

MR O'BRIEN: Yes, that's right, yes. Long distance ones are, yes.

PN42

THE COMMISSIONER: Do you really know, Mr O'Brien?

PN43

MR O'BRIEN: Well, it's a very complicated situation.

PN44

THE COMMISSIONER: You're not wrong.

PN45

MR O'BRIEN: It is a complicated thing to work out.

PN46

THE COMMISSIONER: I'm not surprised about that. It's getting more complicated by the minute. So we don't know. So, when your fellows drive to Albury and - sorry, drive to Melbourne and back - - -

PN47

MR O'BRIEN: Yes.

PN48

THE COMMISSIONER: - - - what are you going to give them?

PN49

MR O'BRIEN: The kilometre rate.

PN50

THE COMMISSIONER: The kilometre rate?

PN51

MR O'BRIEN: Yes.

PN52

THE COMMISSIONER: Not the agreed trip rate?

PN53

MR O'BRIEN: The agreed trip rate, sorry, yes.

PN54

THE COMMISSIONER: All right, I see. Have you got any clerical people working for you, Mr O'Brien?

PN55

MR O'BRIEN: Yes.

PN56

THE COMMISSIONER: What award covers them?

PN57

MR SCHULZ: State Clerical.

PN58

MR O'BRIEN: Yes, State Clerical one.

PN59

THE COMMISSIONER: This agreement doesn't cover them?

PN60

MR SCHULZ: No, it doesn't, no.

PN61

THE COMMISSIONER: No. I'm not sure whether it passes the no disadvantage test or not, but it doesn't really matter because what I said about the last two agreements applies. The 170LK(4) notice is deficient.

PN62

MR SCHULZ: Yes, those extra - - -

PN63

THE COMMISSIONER: And although a similar notice may have been passed in the past, there have been Full Bench decisions becoming more and more stringent over the last two years, saying that the notice must use the words in the Act.

PN64

MR SCHULZ: I understand that, Commissioner, just that the same agreement has been used in the past. If the Full Bench has changed the rules, that's fine.

PN65

THE COMMISSIONER: Sometimes going through - yes, going through these agreements sometimes, Mr Schulz, there is so much to look at, I'm sure things slip through.

PN66

MR SCHULZ: Sure. I wasn't being judgmental, Commissioner, I'm just saying - - -

PN67

THE COMMISSIONER: I'm pleased you weren't.

PN68

MR SCHULZ: No, no. Well, it's not just yourself that approve these, it's senior deputy presidents that have - - -

PN69

THE COMMISSIONER: If it slipped through before, I'm not surprised, and because it looks like the words of the Act, going through, you would flick over it and you would think, "Oh, yes, that complies", until you read it very carefully and you notice those last four words have been changed, which is the weird thing. Why change them? Why use the words of the Act up until there and then change the few words that make all the difference? Very strange.

PN70

MR SCHULZ: I can honestly say, Commissioner, I have no idea.

PN71

THE COMMISSIONER: No, neither do I, Mr Schulz, and that's why most people would have just looked at that agreement, and thought, "Terrific. The notice complies. It follows the wording in the Act completely", and you wouldn't even read down to the last four words because you would think, "Why would someone change them when they have covered everything else?" Apparently there's a reason.

PN72

Anyway - so I can't certify it. It's going to have to be done again. Please make sure, when you put it up to them again, that they understand exactly which award they're going to be covered - well, which award covers them currently, and how it's going to work. Okay? Because I'm going to go through it, because the wage rates are exactly the same in most cases as the award rate, if there's one slight reduction in any other entitlement, I won't be certifying it.

PN73

MR SCHULZ: Well, the trip rate is so high, Commissioner.

PN74

THE COMMISSIONER: Good.

PN75

MR SCHULZ: As is the overnight allowance, so the overnight allowance is - - -

PN76

THE COMMISSIONER: Okay, I will make sure that that's the one that's going to comply, because if you don't give them the trip rate and you don't give them, you know, the overnight allowance - see, they're local drivers - - -

PN77

MR SCHULZ: Yes.

PN78

THE COMMISSIONER: - - - and they're on exactly the award rate. If you changed one hour in the span of hours, it fails the no disadvantage test, okay? It's got to be award which is the absolute bare minimum, or better. And it only has to be better by a dollar, but it's got to better, okay? All right. So, take it back, put the right LK(4) notice up, check the agreement to make sure it complies. It will only take you a couple of weeks, lodge it, and I'll certify it, and if everything complies and if you're fairly certain everything complies, you need not bring Mr O'Brien away from his work again, or anybody.

PN79

MR SCHULZ: Okay.

PN80

THE COMMISSIONER: So long as it complies, okay?

PN81

MR SCHULZ: Yes, loud and clear, Commissioner.

PN82

THE COMMISSIONER: Fine.

PN83

MR SCHULZ: Thank you, Commissioner.

PN84

THE COMMISSIONER: I'll adjourn.

ADJOURNED INDEFINITELY [10.54am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #S1 COMPARISON DOCUMENT OF RELEVANT MAJOR ELEMENTS OF AGREEMENT AND NOMINATED AWARD PN6