AG2005/3796, Transcript of Proceedings [2005] AIRCTrans 1032 (29 April 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11329-1

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2005/3796

APPLICATION BY TRANSPORT WORKERS' UNION OF AUSTRALIA & SERCO AUSTRALIA PTY LTD
s.170MD(6) - Variation of certified agreement to remove ambiguity
(AG2005/3796)

ADELAIDE

11.51AM, WEDNESDAY, 20 APRIL 2005

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN ADELAIDE

PN1

MR L DUFFIN: I appear on behalf of the Transport Workers' Union of Australia.

PN2

MR SHORT: I seek leave to appear for Serco Australia Pty Ltd. With me is MR PRITCHARD and MR COREY.

PN3

THE SENIOR DEPUTY PRESIDENT: Mr Duffin, I've noted the application was made pursuant to section 170MD(6) and on a consideration of the material now provided to me, including the agreement and the statutory declarations, indicates that in fact the parties seek a variation of the agreement pursuant to section 170MD(3) of the Act. Is that the case?

PN4

MR DUFFIN: That is the case, your Honour. Perhaps I might just place on record that regrettably I was in Adelaide on Thursday and I had to attend my grandfather's funeral in Sydney on Friday and consequently was not really in the position to oversee the preparation of materials in a way that would have prevented the matter going through in that way but your Honour is correct in that we are pursuing the matter pursuant to section 170MD(3) rather than 170MD(6) and we would seek your Honour to exercise powers pursuant to the rules in relation to that.

PN5

THE SENIOR DEPUTY PRESIDENT: Section 111(1) allows the Commission that discretion and I'll utilise that discretion so as to allow a variation of the ground upon which the - or the basis upon which the application has been made.

PN6

MR DUFFIN: Thank you, your Honour.

PN7

THE SENIOR DEPUTY PRESIDENT: Mr Duffin, I've read the statutory declarations and I've read the agreement. It appears to me that the parties have made changes to the following clauses of the agreement: Clause 6, which change reflects the actual expiry date of the original agreement and probably takes account of the issue that prompted a variation order at the time of Commissioner Dangerfield's certification of the agreement; clause 19, clause 35, clause 36.1, clause 36.2, clause 36.3.1 and clause 37. Have I picked up the actual changes the parties propose to make to this agreement?

PN8

MR DUFFIN: I think, your Honour, there may also have been a change at clauses 14.4.2 - - -

PN9

THE SENIOR DEPUTY PRESIDENT: Sorry. yes. I missed that obvious one, yes. Should I understand from the statutory declarations then that in fact those changes or an agreement in that same revised form was provided to all employees in each of the three depots. That is, at Elizabeth - sorry, four depots -
Carrie Street, St Agnes and the Morphetville Road, Morphetville depot and that, that agreement was subject of some form of explanation to employees?

PN10

MR DUFFIN: Certainly you can, your Honour.

PN11

THE SENIOR DEPUTY PRESIDENT: Further, that the explanation occurred before employees in each of those four depots voted?

PN12

MR DUFFIN: Yes. Again that occurred and for completeness sake, although I'm not sure it's strictly necessary, there was at least 14 days.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes. If I look at paragraph 6.6 in the statutory declaration you'll see the parties have written "not required" against that particular specification. Does that reflect an assessment of the obligations of the Act or does that statement "not required" reflect some form of advice about the nature of the workforce to be covered by the agreement?

PN14

MR DUFFIN: Your Honour, I might ask Mr Short to answer that question. My assessment of it is that it was in accordance with the knowledge of the workplace that was both of the employers, in particular those managers of Serco, and also the TWU representatives, but Mr Short may be in a better position to answer that given that he has both of those managers immediately next to him.

PN15

THE SENIOR DEPUTY PRESIDENT: Mr Short, Mr Duffin has said that you are the expert in this area. Just one moment, Mr Short.

PN16

MR SHORT: Thank you, Senior Deputy President

PN17

THE SENIOR DEPUTY PRESIDENT: Mr Short, perhaps before you answer the question that I've raised, I might just get you to clarify the standing of the document. I have before me an agreement signed by Mr Gallagher for the union and Mr Allan for the union and Mr Corey for Serco Australia.

PN18

MR SHORT: Yes.

PN19

THE SENIOR DEPUTY PRESIDENT: I have before me signed a statutory declaration from Mr Allan and I have before me a statutory declaration which is substantially handwritten but is signed - and I stress the word signed - by Mr Corey. Mr Corey has not put in his name, or address or occupation at the front of that statutory declaration. Lest there be any doubt, I'll provide a copy of - not a copy of that. At this stage, I'll provide the actual Commission's file in that regard so you can have a brief look at it and I'll ask you to hand it back to me when you've had that opportunity to look at it.

PN20

MR SHORT: Mr Corey is the general manager of bus operations for Serco Australia Pty Ltd and a person authorised to sign the agreement on behalf of the company.

PN21

THE SENIOR DEPUTY PRESIDENT: It was that statutory declaration that I was reading from relative to paragraph 6.6. The answer to that same request in Mr Allan's statutory declaration is simply a, not applicable, response.

PN22

MR SHORT: I'm instructed the answer "not required" has been inserted because there were no people who required any special assistance in order to understand the agreement. There were no non-English speaking employees.

PN23

THE SENIOR DEPUTY PRESIDENT: I see.

PN24

MR SHORT: And no persons with disabilities requiring any special assistance.

PN25

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN26

MR DUFFIN: Your Honour, if I might just add one further element to that which is just to say that as your Honour has noted that the terms of the agreement are almost identical to the agreement that the employers are currently working under. There were some minor changes as your Honour has noted. In that context the degree of explanation focussed more on the changes rather than the underlying agreement in one sense, your Honour.

PN27

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Duffin. Mr Duffin, I would understand that a number of the changes that have been made have been made in order to ensure that the agreement in its revised form is capable of certification as a result of the requirements of section 170MD(3)(b) which requires that I certify the agreement as if it were a new agreement and as a consequence, some of the provisions of the original agreement, if I can call it that, might well fall foul of the Electrolux High Court decision requirements. Is that the case?

PN28

MR DUFFIN: That's very much the case that in particular the wage deduction clause which you referred to earlier and also, I think it's the right of entry and inspection of premises clause. You'll note that clause 36.1 for example, is intended to reflect very much the decision in the Full Bench of Schefenaker. Also, the wage deduction clause has had to deal with that issue as well.

PN29

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Duffin. Is there anything you want to say to me about the revised agreement? I should hasten to add that I have read the document.

PN30

MR DUFFIN: The answer is, no. Essentially the agreement has been revised in a very difficult context but hasn't been intended to extend its operation beyond what was previously there and really has been intended to clarify some issues that were either previously ambiguous or in the event that we had to comply with 170MD(3)(b), we've sought so to do. Beyond that, your Honour, it's an agreement which is in very similar terms to the agreement that was currently operating at the employer and we've sought to merely clarify and address those other issues.

PN31

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Short, is there anything the employer wants to say to me about the agreement? Or the variation to the agreement is I think the best way to refer to it.

PN32

MR SHORT: Yes. Some comments which will be relevant to a proper understanding of the agreement and its intended operation. By way of background, I'll just place on record some matters that I'm sure the Commission is aware of but it may nonetheless be of assistance. Serco has operated buses in Adelaide under a contract with the state government, which in turn is through the Office of Public Transport. Those contracts expire on 23 April and Serco has been unsuccessful in obtaining new work. As a consequence, two incoming contractors, Southlink and Torrens Transit will take over those bus operations that Serco has been conducting to date. Also as a consequence of the loss of those contracts, bus operators will no longer be required by Serco, effective close of business 23 April.

PN33

It was always envisaged by the TWU and Serco and the parties to the agreement that if Serco lost its contracts there would be a seamless transition to incoming contractors. It was never envisaged by Serco or the TWU that employees would as a consequence lose their jobs. Serco and the TWU have been working assiduously with a view to encouraging incoming contractors to employ Serco employees and also have been liaising with the Office of Public Transport encouraging it to see that Serco employees all obtain employment with the incoming contractors. The enterprise agreement comes about in a context where there is, I think a common intent and understanding that it's not appropriate for bus operators who obtain a like for like position with incoming contractors to also receive a severance payment.

PN34

That is relevant to a proper understanding of clause 14. By like for like what is meant is that full-time Serco employees who obtain a job with an incoming contractor as a full-time employee, ought not receive a redundancy payment. A part-time employee who receives a part-time or full-time position with an incoming contractor also ought not to receive a redundancy payment. Casual employees will have no entitlement under clause 14 in any event. This is in a context where incoming contractors have agreed to recognise accumulated
sick leave and original start dates with Serco for the purposes of determining long service leave benefits and future redundancies. That scenario is one where it's common ground that severance pay under clause 14.7.1 will not arise.

PN35

It is perhaps helpful to place that on record at this time lest there be any disputation about it in the future. We say that, that's the position both under the 2004 Agreement and under the agreement before you today. Hopefully that serves also to clarify any ambiguity or uncertainty that may otherwise arise out of clause 14. It is Serco's position that in any event the loss of the contract and consequent loss of labour would be within the meaning of clause 14.1.1:

PN36

A loss due to ordinary and customary turnover of labour.

PN37

Sir, you'll be aware of authorities where contractors have lost jobs and as a consequence employees lose their job. We say that the agreement is approached on the basis that again severance pay under 14.7.1 would not be triggered.

PN38

We agree with Mr Duffin in relation to the changes that have been made and the changes also made in relation to Electrolux. Can I also place on record our recognition of the corporate approach that the union has taken in relation to working with Serco to see that employees so far as possible, have not been inconvenienced by Serco's loss of these contracts. I hope that serves to clarify.

PN39

THE SENIOR DEPUTY PRESIDENT: Just one other question of clarification with respect to clause 14, Mr Short. Should I understand that the position that Serco have adopted in this regard is predicated on employees being offered equivalent alternative roles with either Southlink or Torrens Transit and, and I stress the word, and, recognition of accrued entitlements?

PN40

MR SHORT: That is recognition of sick leave entitlements and recognition of start date for long service leave and future redundancy. That is the basis on which the majority of currently Serco operators have been offered employment with incoming contractors.

PN41

THE SENIOR DEPUTY PRESIDENT: It doesn't include annual leave presumably which is paid out?

PN42

MR SHORT: Annual leave will be paid out on termination.

PN43

THE SENIOR DEPUTY PRESIDENT: Or any other form of leave apart from sick leave?

PN44

MR SHORT: Apart from sick leave and long service leave recognition.

PN45

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Short. Mr Duffin, is there any dispute over any of the information Mr Short's provided to me?

PN46

MR DUFFIN: Your Honour, perhaps I ought to just place two caveats on what Mr Short has put to you. In relation to the, like for like aspect, I think it is common ground between the TWU and Serco that equivalent the like for like employment would not involve situations involving a full-time job being offered in a depot some considerable distance from the current depot. I should also put on record that the TWU does not agree with Serco's interpretation in relation to 14.1 in relation to the ordinary and customary turn over of labour but we don't need to say anything further in relation to that. It's not a matter which we think has arisen in this case. What we can say though, is that the union believes that Serco has done everything in its power to assist employees in obtaining employment with the incoming contractors. For that, we thank them for their assistance.

PN47

MR SHORT: In relation to the employees who were offered positions at depots far away. We don't quibble with that matter and it seems that apart from the
turnover of labour issue we otherwise have a common position that we're putting forward today.

PN48

THE SENIOR DEPUTY PRESIDENT: On the basis of the information provided to me by the parties I have considered this application in a context of
section 170MD(3) of the Act. That section requires that I must approve the variation if I'm satisfied that a majority of the employees are included, subject to the agreement at the time, genuinely approved the variation. That I am required to certify the agreement as varied as if it were a new agreement whose certification was applied for under this part. On that basis I'm satisfied that the agreement or variation to the agreement was approved by a valid majority of the employees to be covered by it. I've had regard to the information provided to me in the statutory declarations and the accessibility of the agreement in its varied form, together with an explanation of the variations proposed.

PN49

I'm similarly satisfied that whilst the catalyst for the variation to the agreement may well revolve around clause 14 redundancy, the other variations to the agreement mean that the agreement in its varied form can be said to pertain to the relationship of Serco as the employer and its employees as such. Hence there is no impediment to consideration of the application. I'm satisfied that
sections 170LT and sections 170LU do not represent a further impediment to certification. I've noted that with particular reference to clause 14 of the varied agreement that the parties have engaged over the past few months in extensive discussions associated with the transfer of the Adelaide bus passenger transport contracts.

PN50

That those discussions have involved both the TWU and Serco but in addition have involved the new contractors Torrens Transit and Southlink and that those discussions have been directed in part at the determination of the terms upon which employment will be offered to employees and the issue to which employees, will it be offered. I've also noted that there is no dispute between the parties at the time of variation of this agreement and of certification of that variation of the agreement in its revised form. That provided employees are offered employment with a replacement contractor at comparable locations and on equivalent terms with recognition of accrued sick leave annual leave and redundancy entitlements there is no entitlement to redundancy under clause 14 of the agreement.

PN51

On the basis of the information provided to me I will approve the variation of the agreement with effect from today. Given the transfer of employment, it may be that this actual agreement does not operate for a very long period of time in terms of its effect on Serco. The order giving effect to this variation, which takes effect from today, will be forwarded out to the parties within the next few days.

PN52

Mr Duffin, I noted at the outset the various clauses that I understood were subject of the variation. So as to make sure that I've accurately reflected all of those variations, I'm wondering whether I could require from the TWU a draft order giving effect to this application. I would then delay publication of my order until such time as I've had a look at that draft order.

PN53

My suggestion would be that it might make logical sense for you to devise that draft order and perhaps confer with Mr Short to ensure that the parties didn't manage to snatch disagreement from the very real prospect of an agreed position. How long do you think it might take you to provide that material to me?

PN54

MR DUFFIN: I'd be hopeful, your Honour, of providing it to you no later than this time tomorrow.

PN55

THE SENIOR DEPUTY PRESIDENT: On that basis I would hope to have the variation order published to the parties on Tuesday of next week. Mr Duffin does that resolve the issues from your perspective?

PN56

MR DUFFIN: It does, your Honour.

PN57

THE SENIOR DEPUTY PRESIDENT: Mr Short?

PN58

MR SHORT: Yes, Senior Deputy President. There's just one housekeeping matter that I'd overlooked that I don't think has been addressed and that relates to the timing within which the application for certification was made. It was outside I think the 21 days and seek an extension of that time under section 111.

PN59

THE SENIOR DEPUTY PRESIDENT: Yes, indeed. Should I understand that the make up of the workforce didn't change significantly over that period of time?

PN60

MR SHORT: It did not.

PN61

THE SENIOR DEPUTY PRESIDENT: Mr Duffin, I take it that you too would support the use of section 111(1)(r) of the Act to enable that time limit to be extended should it be applicable in this instance?

PN62

MR DUFFIN: I would, your Honour.

PN63

THE SENIOR DEPUTY PRESIDENT: Very well, I shall do that, Mr Short.

PN64

The order that I make varying the agreement will apply until 29 July 2005, which is reflective of the nominal expiry date of the existing agreement. I congratulate the parties on working their way through this maze and I'll adjourn the matter accordingly.

<ADJOURNED INDEFINITELY [12.22PM]