C2005/138, Transcript of Proceedings [2005] AIRCTrans 1509 (12 July 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12134-1

COMMISSIONER MANSFIELD

C2005/138

TRANSPORT WORKERS' UNION OF AUSTRALIA
AND
GREENFREIGHT PTY LTD
s.99 - Notification of an industrial dispute
(C2005/138)

MELBOURNE

9.58AM, WEDNESDAY, 15 JUNE 2005

PN1

MS A RICHARDS: I appear on behalf of the Transport Workers' Union of Australia.

PN2

THE COMMISSIONER: Thanks, Ms Richards.

PN3

MR P GAYNOR: I'm representing Greenfreight.

PN4

THE COMMISSIONER: Right, Mr Gaynor, thank you. This is a section 99 notification by the Transport Workers' Union against Greenfreight Pty Ltd. The notification alleges refusal by Greenfreight to pay meal allowances in accordance with clause 36.3.1 of the Transport Workers' Award 1998. Perhaps, Ms Richards, if you could give us an outline of the situation involving the company and
Mr Gaynor you can give us an outline of a response and if it's okay by the parties, we might go into conference and see whether we can sort this out. Good,
Ms Richards.

PN5

MS RICHARDS: Thank you, Commissioner. You're correct this is an application under section 99 of the Workplace Relations Act in relation to an alleged refusal by Greenfreight to pay meal allowances or supply appropriate meals in accordance with the award. There is no certified agreement between the parties, so these employees are covered by the Transport Workers 1998 Award. The clause that I'm referring to, is clause 36.3 and the clause states:

PN6

An employee required to work overtime for two hours or more, shall either be supplied with a meal by the employer or paid $10.69.

PN7

The issue has arisen - - -

PN8

THE COMMISSIONER: The clause is fairly clear Ms Richards, one wonders how it can be misapplied, but we will see.

PN9

MS RICHARDS: Yes. Well we've had discussions with members at two of the yards that Greenfreight operates out of, one in Wodonga and also one in Melbourne located in Campbellfield. The issue has arisen - we've had indication from members that either meal allowances have not been paid or that we believe that the meals actually supplied by Greenfreight aren't satisfactory and not suitable in terms of the spirit of them - of the clause provided in the award.

PN10

Our understanding is that if meals are provided, they are of a frozen variety nature, they are locked in a fridge. The employee once they come off overtime, after working a 10 hour shift, has to go and speak to the local shift supervisor or the manager . The manager then opens the lock and then opens the door to the fridge/freezer, they receive a frozen meal, they're expected to heat that up themselves. No drinks are provided and often I've had instructions that some of those meals happen to be out of date. So that's the basis of our claim at the moment. Either meals have been provided, we believe they are of a substandard nature and aren't of approximate value to the meal allowance or meal allowances have not been paid.

PN11

THE COMMISSIONER: So, Ms Richards the situation is that members of the TWU work overtime - - -

PN12

MS RICHARDS: Yes, that's correct.

PN13

THE COMMISSIONER: They work for more than two hours after their normal finishing times or alternatively work before the shifts regular start time. The meal that is provided in lieu of the meal allowance is a frozen meal, which the member has to heat. In the opinion of the union and its members, the meal isn't suitable and there is a problem in terms of reheating and you're saying that in some cases the expiry date on the meal is beyond the - - -

PN14

MS RICHARDS: That's correct, that's what I've been instructed.

PN15

THE COMMISSIONER: Thank you Ms Richards. Mr Gaynor, what does Greenfreight say about all of this?

PN16

MR GAYNOR: Commissioner, Greenfreight received a letter from the TWU dated 16 May 2005. I apologise, I don't have copies but if I may, it's a short letter if I could quickly read it. It's basically a letter from the TWU signed by
Amy Richards basically alleging that the company is not correctly applying the clause, it outlines what the clause provides and said:

PN17

We are led to believe no rules are currently being provided and no allowance is currently being paid. We wish to meet with a company representative to discuss the matter further in order to resolve the outstanding dispute. If the effort does not prove fruitful we will seek to escalate the matter in accordance with the disputes procedures in the award.

PN18

Ms Richards asked whether the company could contact her to arrange a suitable time to meet.

PN19

THE COMMISSIONER: What date was that written on?

PN20

MR GAYNOR: That was 16 May.

PN21

THE COMMISSIONER: 16 May.

PN22

MR GAYNOR: The company sent a letter back on 30 May. The letter was addressed to Amy from Mr Anthony Green, who's a managing director and that letter reads:

PN23

Our general practice has been to provide meals at our sites where employees are required to work more than two hours overtime. Could you please provide further information to allow us to investigate your claim further - advise further. We will also follow this up directly at each of our sites. Greenfreight's commitment to its employees is that we will and always have complied with the requirements of the award. Signed, Mr Anthony Green.

PN24

I was contacted by Mr Green, sorry I should indicate that we then received notification of the matter before you today, Commissioner and after Mr Green received that notification I was contacted and asked to pursue the matter on his behalf. On 7 June I rang Amy Richards and left a message on her mobile phone, I did not receive a return call. On 7 June I also contacted Mr Colin O'Malley, who is the TWU organiser stated on the document. I spoke to Mr O'Malley on 8 June for about two minutes, he was apparently going in for an operation on his hand. He said he'd get back to me the next day but said it was something about the quality of the meals and that was all I was told. I then rung back Colin on the 14th, which was yesterday sorry, to just see if there was any update. I still haven't received a return call from Colin. I did also speak to Ms Richards and I was told that it was something to do with the meals not being supplied, other than at the ..... in Victoria and they were at a low standard.

PN25

So, Commissioner, I've been instructed by the company that it wishes nothing more than to apply the clause appropriately. It believes it is applying it appropriately, it's seeking information from the TWU about where that may not be appropriate, if there's a problem with the standard of the meals, that it's more than happy to talk about that. If there's a problem with not applying it properly it certainly wants to know what the problem is, so that it can fix it.

PN26

THE COMMISSIONER: Thanks, Mr Gaynor. I'm not going to come down at this stage but, Ms Richards can you be more specific about where the difficulty is in terms of the inappropriateness of the meals which are being supplied? Because the award does allow the employer to provide a meal, there's no question about that. But I think everybody would agree that when a meal is supplied it should be appropriate and the employer is saying - the employer is quite happy to provide an appropriate meal.

PN27

MS RICHARDS: Commissioner, if I could just also articulate, I did receive the correspondence from Greenfreight. It was postmarked - it was apparently sent on 30 May, we didn't receive it until 6 June, so the mail was actually lost in between that interim period, if I could just quote the record for that.

PN28

THE COMMISSIONER: Ms Richards, I should ask you as well, has somebody attempted to contact the appropriate level of management in Greenfreight to raise the issue, seek to organise a discussion? Where is the manager of Greenfreight located, is it in Melbourne or is it in Albury, or where?

PN29

MR GAYNOR: Commissioner, there are various sites but Mr Tony Green who's the managing director normally takes up these issues with his operations management.

PN30

THE COMMISSIONER: Where's he located?

PN31

MR GAYNOR: He's located in Wodonga.

PN32

THE COMMISSIONER: In Wodonga.

PN33

MR GAYNOR: Yes, I think Mr Dunn was up there on the weekend actually, with a meeting of employees. My instructions are that no one from the TWU has sought to contact anyone within management, to discuss this issue.

PN34

THE COMMISSIONER: Ms Richards, what's happened here? We're here in the Commission, you're here, Greenfreight has organised a representative to appear on its behalf. What it's saying is we have a problem, we're happy to sort it out. My question really is to the TWU, what efforts have been made to meet directly with the appropriate level of management in Greenfreight and sort this out as per the dispute settlement procedures arrangements before it comes to the Commission?

PN35

You come here, I am entitled to assume that the union has made appropriate efforts to meet with management and those efforts have come to naught. What I'm hearing from management is, they understand what they are required to do
vis a vis the award and are quite prepared to accept the obligations that are set out in clause 36.3.1, which are either to provide an appropriate meal or pay a meal allowance.

PN36

So, there are two issues here. One, the issue of what effort has the union made to resolve this matter with management prior to coming to the Commission and you've said you've sent a letter. The company has said we've responded to that letter on the 30th. The question would be did anyone endeavour to contact the appropriate level of management on the telephone, who is Mr Green and say to Mr Green, what's happening and why is this a problem and on the face of it,
Mr Green would have said, if it's a problem we'll sort it out. That's one issue. The least effective way of communicating with someone is to write them a letter. Because for a start you had a delay between 16 May and 30 May, there's two weeks there that the letter sat somewhere. You didn't even receive the letter in reply until early June and here we are a couple of weeks - a little over a week later in the Commission. So, there's a correspondence and secondly, you've accepted that meals are being provided, but you're stating that the meals are inadequate in some respect.

PN37

MS RICHARDS: Meals in some occasions have been provided.

PN38

THE COMMISSIONER: Let me hear you on those issues.

PN39

MS RICHARDS: Certainly, I suppose the base of my submission would be that in that letter that I did send on 16 May, I did attempt to engage with seeking to have a meeting. The correspondence sent back didn't indicate an appropriate time to meet nor a willingness to meet, it was rather, I would assume, a request for further information. Perhaps if our local organiser, Brian Dunn, could perhaps provide some insight into the discussions that have been engaged with management on a local level, with respect to this.

PN40

THE COMMISSIONER: Thanks, Ms Richards. Mr Dunn.

PN41

MR DUNN: Commissioner, on 8 June last week I had a meeting with 17 drivers at Wodonga and last year - - -

PN42

THE COMMISSIONER: Now Mr Dunn, this is 8 June we're talking about? It's a week ago.

PN43

MR DUNN: Yes.

PN44

THE COMMISSIONER: Please go on. I'm going to be asking you at some
point - this was notified to the Commission - - -

PN45

MS RICHARDS: The 3rd, I think, Commissioner.

PN46

THE COMMISSIONER: It was received on 3 June and I'm going to be asking at some point, what happened sometime in April/May to draw this matter to the attention of management and why wasn't it resolved in normal discussions? But you go on. You met with your members on 8 June.

PN47

MR DUNN: 8 June. 17 drivers, we had a meeting about a lot of issues about putting together - seeing if we could put together a new EBA because they're on the award, increases the whole - all the issues that are in the yard. We also spoke about, and I asked the question, do they get a meal or do they get paid meal allowance. Now, there was quite a lot of laughing in the meeting about that they don't get a meal, nor do they get a meal allowance.

PN48

THE COMMISSIONER: They don't get a meal?

PN49

MR DUNN: They don't get a meal - - -

PN50

THE COMMISSIONER: Ms Richards has said to us a little while ago, they get given a frozen meal.

PN51

MS RICHARDS: My understanding is that might be at the Campbellfield site, we don't have the local organiser of that - - -

PN52

THE COMMISSIONER: So Wodonga, maybe they don't get a meal at all?

PN53

MR DUNN: They don't get a meal at all and I asked a question of how long have they - how long has it been since they hadn't had a meal. There was a couple of people there that said in the last couple of year they wouldn't think that there was even a meal in the fridge. Now it's locked. Last year when, we'll just step back a little bit further, when I met with Tony Green and one of the directors, Roger and I can't think of Roger's surname - - -

PN54

MR GAYNOR: Hennessey.

PN55

MR DUNN: And when we terminated our agreement on another occasion, we spoke about meal allowance with Tony Green, the managing director of the company. He told me, and he showed me the fridge at Wodonga that is locked, he told me what the process was. I asked him why - - -

PN56

THE COMMISSIONER: The explanation at that time, Mr Dunn, was what? If you work overtime you come to the fridge, open it and get the meal out, or what?

PN57

MR DUNN: No, the process is that if you work overtime, you park your vehicle then you've got to go and find a supervisor or a manager, then he comes with key, unlocks it. If there's none in there, they'll give you one later on. Sometimes, and when I asked the guys last week how often does this happen, they laughed and they said we don't go and get the meal because it makes it very hard when it's out of date. It makes it very hard when the chest is empty and Tony Green, I asked the question to Tony Green last year, why is it- it's very unusual in this day and age that someone is given a two dollar meal.

PN58

THE COMMISSIONER: Is it a two dollar meal we are talking about, Mr Dunn?

PN59

MS RICHARDS: I've got a receipt here that indicates the types of meals are approximately $4.75, the frozen nature. I've brought one into the Commission if you're interested in having a look at one.

PN60

THE COMMISSIONER: I would be.

PN61

MR DUNN: Now, what happens is that Tony Green said that his father, Fred, years ago, caught a couple of people hanging out under a tree in Wodonga, so he said I'll fix these people, I will give them a meal. Now if that's a meal that you're going to be able to take home - - -

PN62

THE COMMISSIONER: When you say, hanging out under a tree - - -

PN63

MR DUNN: They were his words.

PN64

THE COMMISSIONER: They were his words

PN65

MR DUNN: Hanging out under a tree looking for overtime, his words.

PN66

THE COMMISSIONER: Yes, okay.

PN67

MR DUNN: So we will give them a meal. We're talking about a grown adult, a man that's worked probably 10 or 11 hours, he's supposedly going to get that on his way home, he's either going to stop at the hotel and have a couple drinks, which he's entitled to, then if he gets home he may not have a microwave because there are people in this day and age that don't have microwaves, how he's going to heat it, I have no idea. But this, in 2004 and 2005, is what is expected for people to have.

PN68

THE COMMISSIONER: So this, is the "meal", that is available for the employees of Greenfreight in Wodonga?

PN69

MS RICHARDS: I know definitely in Campbellfield.

PN70

THE COMMISSIONER: Possibly something similar in Wodonga?

PN71

MR DUNN: The people at Campbellfield actually go and get it and then when they get home, they throw it straight in the rubbish bin because they won't eat it. But they take it, so they can throw it in the rubbish bin.

PN72

THE COMMISSIONER: But the point would be - that the union would argue that this particular meal, if it's provided to members at either Campbellfield or Wodonga is not an adequate meal as per the award.

PN73

MS RICHARDS: That is the basis of our submissions, yes, Commissioner.

PN74

THE COMMISSIONER: The company would say, this is the meal that's in the freezer, and we're prepared to give it to you in lieu of the $10 meal allowance.

PN75

MR DUNN: If Tony Green is saying that we haven't sat down and spoken to him, last year, now we're talking about October/November last year when we terminated the agreement, I spoke to Tony and Roger and I asked them the question and he actually showed me around the depot the first time I was there. He showed me around and took me into the room and I asked him and I said to him, I find it very hard to believe that you're going to give someone a two or three dollar meal. That was his answer. Now when I spoke to the guys on 8 June, and had 17 local drivers there, the interstate guys are different because they finish up in Sydney or Brisbane or wherever, but the local guys, it was just a laugh. They don't get anything.

PN76

THE COMMISSIONER: Mr Dunn, in regard to work practices at Wodonga, let's talk about Wodonga specifically, the normal overtime is what, two or three hour's duration? Is it a situation where a person could be - you work for two hours, you get your meal break, you're given this meal then you go back and do some more work?

PN77

MR DUNN: You go home.

PN78

THE COMMISSIONER: You go home, normally. Now, I'm looking at a meal, I'll have describe it for the purposes of the transcript, which is in a plastic container, it appears to have some gravy and sauce in it but I can see some potato and maybe carrot and some meat and it's frozen. According to the Coles supermarket tax invoice, it's called Lean Cuisine Bowl 300g and it costs $4.79 from a Coles supermarket in Elsternwick. Are you interested in looking at this meal, Mr Gaynor?

PN79

MR GAYNOR: Commissioner, I think your description is probably fairly accurate.

PN80

THE COMMISSIONER: I have to make an observation that I wouldn't consider that, personally, to be an adequate evening meal. No one is expecting necessarily 3 courses or anything of that nature, but something better than $5 from Coles is, in my opinion, just off the top of my head, deserved for a person who has worked a full day, has worked two hours overtime and I could imagine being given that, would not be considered to be adequate by most individual employees. That's just an observation from me.

PN81

Coming back to it, Mr Dunn, I hear what you say about talking to Mr Green last October, but quite frankly, if this continued to be an issue with the employees and I can understand it would have been, I would have thought that the union should have, in addition to the letter sent by Ms Richards in May, somebody should have rung Mr Green and said look this is a serious problem and we've got to address it specifically and then gone and seen Mr Green, taken a sample of this stuff with you and discussed the matter and attempted to resolve it.

PN82

MR DUNN: Can I just comment?

PN83

THE COMMISSIONER: Yes, please Mr Dunn.

PN84

MR DUNN: Mr Green would sit 50 feet from the fridge that's in the room. Now, if Mr Green needs us to explain to him what it's all about, you'd think that himself and Roger would be able to walk out and unlock the fridge and actually open the fridge and go, "we haven't got any meals in there, I think we better put some meals in there".

PN85

THE COMMISSIONER: But the letter from Ms Richards to Mr Green, basically said, what again Ms Richards, remind me please?

PN86

MS RICHARDS: The letter at that particular point in time said:

PN87

We are led to believe no meals are currently being provided and no allowance is currently being paid.

PN88

THE COMMISSIONER: So, that specific letter talked about no meals and no allowances, whereas Mr Green probably argues that these are sitting the fridge and are available for people to take home.

PN89

MR DUNN: The 17 workers in the place, said to me that there is never a meal in the fridge. You would think that - - -

PN90

THE COMMISSIONER: I understand what you're saying Mr Dunn and I'm fully appreciative of it and I think you have a genuine issue here, I'm not arguing about that. But I'm just suggesting to the TWU in particular, and I'm not saying the company is blameless in this, it could have done probably more as well. It took two weeks to respond to Ms Richards' letter and, no disrespect to Australia Post, fax machines work a lot faster than Aussie Post does in Melbourne, Wodonga. Or email, or whatever but if the parties had sat down and you weren't able to solve it and you came in here and produced this meal and said, look we've discussed with Mr Green, the managing director and he's told us as far as he's concerned this is perfectly adequate and their not going to get anymore than this and the union can whistle Dixie before it's going to improve, fair enough, come in here and we'll try and get it sorted out.

PN91

This is just an observation about the process to date, that's all I'm doing and I really do expect the parties to do more than what apparently has been done, and I'm talking here to both sides, to sort it out before it comes to the Commission. My own - off the top of the head view, is as I've said, this is not an adequate evening meal and if that's what the company is providing to its employees to respond to the obligations in the award, I think they've got to do better. There may be other meals that are available that can go in the freezer and people can be given a more adequate meal.

PN92

MR DUNN: I just think they should be paid the $10.69 if they work two hours, they can spend the $10.69 wherever and however they want.

PN93

THE COMMISSIONER: The award provides the option.

PN94

MR DUNN: I understand that.

PN95

THE COMMISSIONER: There's a lot of sense for many employers simply to say, I don't want to have the bother of getting this, I don't want to have the bother of going to the freezer every month and checking all the used by dates and making sure they haven't run out, because I imagine something like this is not going to last for all that long, it's not like a box of biscuits that will last for months. This thing, on the fact of it, probably have a used by date 2 or 3 weeks after you purchase it and you've got to check it and make sure it's not passed its used by dates. So, in many cases it's more convenient to everybody just to pay the allowance and from the employees' point of view, probably that's the preferred way of getting the meal entitlement paid for. But it's up to the company, if the company wants to provide a meal it's allowed to do so but the meal has to be adequate and you've heard what I have to say about this particular meal.

PN96

MS RICHARDS: Certainly, Commissioner, we take your points on board but I suppose for the record, we state on 16 May 2005, we're happy to engage in further discussions with the company with respect to that matter, that is still our position today. We propose to do that and in the event that we don't' - we are not able to seek an effective resolution, perhaps we would seek to re-list it and seek your assistance further.

PN97

THE COMMISSIONER: I would certainly recommend to the parties that, taking into account particularly what Mr Gaynor has said, that the company - at the point of coming into this hearing this morning, from his point of view, wasn't fully aware of the specific problem which was of concern to its employees. Was it, is there a meal available? Or have I not been paid my allowances? Or, is this meal adequate? If it's not, in which way is it inadequate? He's now better informed. Mr Gaynor, are you in a position this morning to sit down with the union and try and work this out and get a resolution or are you basically under instructions to come here and appear for the company this morning and get some better understanding about where things are?

PN98

MR GAYNOR: It's the latter, Commissioner. In speaking to the company, we just simply wanted to understand fully the problem and then deal with it. So, really I guess the message for the company is, understandably, either review the meals that you're providing or look at another system to apply the clause. I've been given some anecdotal information from the company, I don't think it's worth putting on transcript, because I think this is something that can be easily resolved at the local level and I don't think it serves any purpose to have a debate in front you.

PN99

THE COMMISSIONER: Mr Gaynor, I would prefer never hear about the problem of meals at Greenfreight again. That means that I want the parties to sit down and work it out. You've heard the opinion I've expressed about this particular meal and I would hope that discussions do occur that, the company doesn't say, well we give you a meal, that's the end of the story. Because if it comes back to me and this is the meal that's brought forward as the standard, I won't be overly impressed.

PN100

MR GAYNOR: Commissioner, I can assure you that's not the case. Just to repeat what I said before, the company has not received any complaints about its meals. As far as it's aware, it is supplying meals in accordance with the clause. The locks are on the fridge because people have been stealing them so - - -

PN101

THE COMMISSIONER: I've got no concerns about the locks - - -

PN102

MR GAYNOR: There is no desire by the company to scrooge the employees. It's simply been, it seems to me, a breakdown in communications.

PN103

THE COMMISSIONER: Don't worry about the locks. Meals are going to be the standard, then 1) meals have to be in the refrigerator at all times, you can't have a situation where at times people go to the refrigerator to get a meal and there's no meal there.

PN104

MR GAYNOR: Of course.

PN105

THE COMMISSIONER: Also, the meals have got to be within their use by dates.

PN106

MR GAYNOR: Of course.

PN107

THE COMMISSIONER: Did you get one that was out of date, Ms Richards or not?

PN108

MS RICHARDS: No, we picked that one straight from Coles yesterday, Commissioner.

PN109

THE COMMISSIONER: That's interesting. I'll just do a quick check on this. The use by date on this is October, so on the face of it, they actually have a used period from, where are we now, in June of about 4 months. Little bit longer than I assumed. But I hope that it can be resolved and Mr Gaynor, I hope you take on board the comment that's been made by Mr Dunn that I think most employees actually prefer just to get the amount of $10.69 in their hand and left to their own devices, as to what they want to do with it. They might go along to the Kentucky Fried Chicken place, they might call into the hotel as Mr Dunn suggests on the way home.

PN110

MR GAYNOR: And spend it on food instead - - -

PN111

THE COMMISSIONER: And spend it on food, of course. A hearty pub meal rather than a warmed up Coles meal, which quite frankly I wouldn't buy and I wouldn't normally eat and neither would you, I expect. But, that's a way to do it and saves the employer all sorts of mucking around and buying meals and things of that nature. Just note that, whether the employer goes in that direction or not is, at the end of the day, the employer's discretion but the meal has to be a good standard.

PN112

MR GAYNOR: Commissioner, I can give an undertaking to go back to the company and inform them of your views and just common sense in this situation and communicate back to the union what its views are. I really don't see this as being a big issue. I think it is something that is a breakdown in communication and can be easily resolved.

PN113

THE COMMISSIONER: Thanks, Mr Gaynor. I think everybody understands as well that when people like Mr Dunn go to a yard and say to the employees, well how are things going, things are raised with Mr Dunn that might never have been raised with the management, because people just get things off their chest and quite properly then the union brings it to the attention of the management in the first place and then when the problem wasn't resolved they brought it here. As I said before, I really prefer never to hear of meal standards at Greenfreight again. I'm sure the union feels the same way and the company feels the same way. But, if it's not resolved and it comes back here, we will deal with it. Good, anything else that needs to be said?

PN114

MS RICHARDS: Thank you for your time, Commissioner.

PN115

THE COMMISSIONER: This matter is adjourned.

<ADJOURNED INDEFINITELY [10.30AM]