C2005/460, Transcript of Proceedings [2005] AIRCTrans 2495 (9 December 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13545-1

COMMISSIONER MANSFIELD

C2005/460

TRANSPORT WORKERS’ UNION OF AUSTRALIA
AND
PARTS DIRECT AUSTRALIA PTY LTD
s.99 - Notification of an industrial dispute
(C2005/460)

MELBOURNE

11.27AM, FRIDAY, 25 NOVEMBER 2005

PN1

MR B DUNN: I appear for the Transport Workers Union.

PN2

MS S MILLEN: I seek leave to appear on behalf of Parts Direct Australia Pty Ltd.

PN3

THE COMMISSIONER: Thank you Ms Millen. Good to see you again.

PN4

MS MILLEN: Thank you.

PN5

THE COMMISSIONER: Mr Dunn, any objection to Ms Millen appearing? I take it there is not.

PN6

MR DUNN: Yes Commissioner.

PN7

THE COMMISSIONER: Thank you, Mr Dunn. Now, we have had correspondence this morning from Deacons passing on information from Parts Direct alleging that the TWU does not have members in Parts Direct and therefore is ineligible to bring this action seeking access to information on the terms and conditions of their employees. Now Mr Dunn I understand this matter relates to one particular former employee of Parts Direct who is a member of the TWU.

PN8

MR DUNN: That is correct, Commissioner.

PN9

THE COMMISSIONER: Now this is all we are talking about, Ms Millen. As I understand it there is one former member, former employee of Parts Direct who is a member of the TWU and that is the person that the union is seeking to obtain information on. Perhaps Mr Dunn, you could give me a bit of an outline of what is happening.

PN10

MR DUNN: Sure Commissioner. Sorry. That is just a copy of his history as a union member, Commissioner.

PN11

THE COMMISSIONER: Thank you and I don't think there is any secret about this individual's name either, is there?

PN12

MR DUNN: No.

PN13

THE COMMISSIONER: And the person's name is Mr Ross Linklater.

PN14

MR DUNN: Correct.

PN15

THE COMMISSIONER: And he joined the union in December 2004 and there is a range of details regarding him, his payroll deductions and payment of subscriptions. So it is one person.

PN16

MR DUNN: Yes.

PN17

THE COMMISSIONER: What is the actual issue, Mr Dunn. What is the problem?

PN18

MR DUNN: I will just go through it, Commissioner, if I may.

PN19

THE COMMISSIONER: Well come to the bottom line, Mr Dunn, what is his worry?

PN20

MR DUNN: His worry is that when he left he asked for his money and - - -

PN21

THE COMMISSIONER: Asked for his entitlements?

PN22

MR DUNN: Yes.

PN23

THE COMMISSIONER: Yes.

PN24

MR DUNN: To be paid up.

PN25

THE COMMISSIONER: And how long had he been working with Parts Direct?

PN26

MR DUNN: He tells me over two years, nearly three years.

PN27

THE COMMISSIONER: Nearly three years. Okay and he resigned?

PN28

MR DUNN: He resigned because Carl Bulach had asked all the drivers to sign a document for them to agree to pay the company's insurance excess if any of the drivers had a crash.

PN29

THE COMMISSIONER: Okay. So the company was going to require of their drivers if they had an accident in their vehicles and damaged the vehicles they had to pay the excess?

PN30

MR DUNN: Correct.

PN31

THE COMMISSIONER: Yes okay. And he balked at that so he resigned.

PN32

MR DUNN: Yes Commissioner.

PN33

THE COMMISSIONER: Now in terms of his entitlements what does he think he - he thinks he has been short changed, does he?

PN34

MR DUNN: Well, when Ross left the employer, Parts Direct the company didn't pay him. Ross made a few phone calls to Michael Wallace.

PN35

THE COMMISSIONER: Michael?

PN36

MR DUNN: Michael Wallace.

PN37

THE COMMISSIONER: How do you spell the surname?

PN38

MR DUNN: W-a-l-l-a-c-e, I am assuming on that. They just tell me that it is Michael Wallace.

PN39

THE COMMISSIONER: Wallace, okay.

PN40

MR DUNN: Now, he made a couple of calls to Michael. I have no idea what rank Michael is in the company.

PN41

THE COMMISSIONER: Yes.

PN42

MR DUNN: Whether or not he is the supervisor, manager, whatever.

PN43

THE COMMISSIONER: Yes.

PN44

MR DUNN: Michael then said that it would be two or three weeks until he gets his wages, his entitlements.

PN45

THE COMMISSIONER: And how long ago was this?

PN46

MR DUNN: This was on - he resigned - probably have it in my diary but I - he resigned approximately six weeks ago, Commissioner and he has started a new driving job.

PN47

THE COMMISSIONER: And he is still waiting on his entitlements?

PN48

MR DUNN: No he has received $1500 and then three weeks after that roughly another $1500. Now he rang us up and I asked for the company how much was he going to be paid. At that stage Michael said that they were still checking into the documentation. So under the Act we - I was asked to facilitate and do a time and wages check to see if we can go back and check his documentation for the last 12 months.

PN49

THE COMMISSIONER: Yes.

PN50

MR DUNN: And Michael - I spoke to Michael the day after, or the same day as we sent the fax out to Parts Direct. Michael rang me that afternoon. He stated that the paymaster was only part time so the paymaster wouldn't be there on the Thursday. We then come to an arrangement that on Wednesday 16 November at 11 o'clock I would be able to go out and check all the documentation because they would have it ready for me. We would come to that the day after. He rang me back a couple of times so we come up with 11 o'clock on Wednesday 16 November.

PN51

On 16 November at quarter to eight in the morning, am, he rang me and said that Carl had had legal advice saying that I wasn't allowed to enter the premises to check the documentation and after that I informed Ross. Ross then said to ask me to keep going at it because he wants to know how much he is owed and at this stage he still hasn't got any documentation from the company but now Michael wants him, Michael's words:

PN52

I will meet you anywhere, anytime to sort this out because we want it finalised. We will meet on the side of the street, in a hotel, on a footpath, whatever, you tell us how much you are owed and we will pay it.

PN53

THE COMMISSIONER: Pretty hard to tell how much he is owed unless he can examine what he has been paid and what his entitlements are.

PN54

MR DUNN: Well they are saying to them now, to Ross, that they will mail it out because they don't want the union to be involved. They don't want to have the union person come and go through the documentation.

PN55

THE COMMISSIONER: So you are still wishing to go to the premises, look at the time and wages records for Ross Linklater and for the last 12 months.

PN56

MR DUNN: Yes.

PN57

THE COMMISSIONER: And then advise Mr Linklater what you believe he may be entitled to.

PN58

MR DUNN: Correct.

PN59

THE COMMISSIONER: Okay.

PN60

MR DUNN: He is saying to us also that he has not been paid his super for 2004, 2005. He had a file from AMP which is the superannuation fund. On his documentation it was said it was put in. He then rang AMP for a copy of the documentation and it is now saying that no super was paid between 2004, 2005. So there is more money that is owed to Ross and we are saying that something might be fishy if we are not allowed on the premises to check.

PN61

THE COMMISSIONER: Yes okay. Good thanks, Mr Dunn.

PN62

MR DUNN: Thank you, Commissioner.

PN63

THE COMMISSIONER: Now Ms Millen, it seems fairly straightforward. We have a member of the TWU, Mr Linklater, former employee of Parts Direct believes that his entitlements over the last 12 months prior to his resignation have not been paid. There is a suggestion that his superannuation has not been paid to the fund that he is entitled to have it paid to and the union simply wishes to go to the company and inspect the books for that particular individual for the last 12 months. It does not seem unreasonable to me. What does it seem to you?

PN64

MS MILLEN: Commissioner if I could firstly, I do not have instructions in terms of the reasons for resignation.

PN65

THE COMMISSIONER: Don't worry about the reasons for resignation. It is not an issue.

PN66

MS MILLEN: Yes the fact that I haven't commented on it - - -

PN67

THE COMMISSIONER: Yes not an issue, Ms Millen.

PN68

MS MILLEN: - - - as an accepted fact.

PN69

MR DUNN: If I could, Commissioner, I was just setting the process.

PN70

THE COMMISSIONER: That is fine. It wouldn't surprise me if the company asked – I think that it is not unusual that actually the transport companies do put penalties on or endeavour to put penalties on drivers who have accidents but, you know, in certain circumstances. I wouldn't expect every accident would require a driver to pay the insurance excess but where a driver perhaps behaved recklessly or gross negligence it may be appropriate but that is just an observation from me. I am sure Mr Dunn wouldn't necessarily agree with that but Ms Millen, we will move on from that.

PN71

MS MILLEN: Indeed.

PN72

THE COMMISSIONER: We will deal with the substance of the issue which is can somebody acting on behalf of Mr Linklater, a former employee of Parts Direct who is a member of the TWU have access to his time and wages records for the last 12 months to enable his entitlements to be properly established by the advice of a person who knows what his entitlements are.

PN73

MS MILLEN: Commissioner if I may the specifics of the alleged suspected breach have not been made clear to my client.

PN74

THE COMMISSIONER: Yes.

PN75

MS MILLEN: But as I understand - - -

PN76

THE COMMISSIONER: It surprises me, Ms Millen, if that is the case. Mr Dunn I would have thought would have made it very clear by now, but go on.

PN77

MS MILLEN: As I understand it between discussions between the ex employee and my client they have related to issues of accrued annual leave and the payments that were made with respect to that. I understand that time and wages records were provided to Mr Linklater and that matter has been resolved. I understand that there is no further issue but as to the issue of whether or not the union which is what the notification of alleged industrial dispute related to, is to whether or not there is a right of entry in 285B. Commissioner, we would draw your attention to sub section 285B(2).

PN78

THE COMMISSIONER: Yes.

PN79

MS MILLEN: Which provides for the purposes of investigating suspected breach the person may enter during working hours any premises where employees worked who are members of the organisation of which the person is an officer or employee. We would say that the right of entry under this section and sub section C, 285C for that matter is not at large. It is for specified purposes and subject to specified conditions and we would say one of those conditions specified in the Act in relation to 285B is that the right of entry must only be exercised in respect of premises where there are employees who are members of the union. That mere eligibility isn't sufficient.

PN80

Commissioner we would say at the time the union sought to exercise its alleged right of entry, to the best of my client's knowledge there were no employees who were members of the union working at the Hallam premises who are there currently.

PN81

THE COMMISSIONER: Would you be satisfied at this point, Ms Millen, that Mr Linklater is in fact a member of the TWU? On the face of things Mr Dunn is coming here and saying he is. He has produced a statement to me that indicates payroll deductions of union dues et cetera. Are you satisfied generally that Mr Linklater is in fact a member?

PN82

MS MILLEN: We have not sought evidence in relation to that Commissioner, but we would say that that is not something which is determined of this issue.

PN83

THE COMMISSIONER: Yes.

PN84

MS MILLEN: It has to be assessed at the time the request was made. He was not an employee at the time the request was made.

PN85

THE COMMISSIONER: Yes. Yes indeed.

PN86

MR DUNN: Commissioner, can I just ask how the company would know who is a member and who is not and how Carl would know that unless he has gone out and – because my information is that the information that goes around is if you join the union you won't be here. Now, has Carl gone out and asked everybody is everybody in the union or not in the union? Hopefully that hasn't happened.

PN87

MS MILLEN: Commissioner, mere assertions as to what my client feel the union are does not assist but as I said to the best of my client's knowledge it is not a case of we have gone around and asked every employee by any means.

PN88

MR DUNN: Well that is what it states in the letter coming from Carl that we received yesterday stating that no one is a member of the union nor was Ross.

PN89

MS MILLEN: Commissioner if I may, the letter - - -

PN90

THE COMMISSIONER: Now Ms Millen, let me just look at something here. This is a notification under section 99 of the Act. It is a small matter. One person, entitlements for 12 months. Not unreasonable. What we are trying to do here is to get a bit of fairness. Now if your client says he is not going to co-operate at all with Mr Dunn making a reasonable request to go out and view this person's time and wages record - and I think Mr Dunn, if you had access to the time and wages records which are provided to you by facsimile or by letter to your office would that satisfy you, by the way?

PN91

MR DUNN: That would satisfy us, Commissioner.

PN92

THE COMMISSIONER: We are not talking about going out to the premises. Now if that isn't okay I will be looking very closely at my powers as a Commissioner to physically go out there and go into the premises and require the employer to produce certain documents and I will go there myself and Mr Dunn and yourself can come with me if you wish. Now that is the option for your client. It is not an unreasonable thing that Mr Dunn has requested. It is an individual who is no longer working who simply wants to get his entitlements straightened out. Now it can be done the easy way or the hard way and maybe you could communicate that to your client and what I would like you to do is pass that on to your client.

PN93

I hear what you say about a person must be employed at the workplace and quite possibly technically you are right that if Mr Dunn's argument is this person is no longer - he wants to have access for a person who is no longer at the workplace the right that is contained in the Act for a union officer to visit the workplace and inspect the time and wages records is probably not the way that has been expressed by Mr Dunn but this is a small matter. Should be resolved fairly to both parties. Mr Dunn is responding to my suggestion that if the employer provides the time and wages records for Mr Linklater by mail or by facsimile to the TWU office to enable him to be satisfied that those time and wages records are accurately provided and if they are not there will be consequences.

PN94

That will be the end of the matter. If that isn't satisfactory this matter will come back on and quite probably I will arrange an inspection of those premises with Mr Dunn under the powers that I have got under section 111 of the Workplace Relations Act to adjourn to any time and place to conduct its proceedings, sorry to sit at any place, to conduct these proceedings at any part of its proceedings in private, adjourn to any time and place and to, I think, summon before it the parties to the dispute, the witnesses or any other persons whose presence the Commission considers would help in the hearing or determination of dispute and compel the production before it of documents or other things for the purpose of reference to such entries or matters only as relate to the industrial dispute.

PN95

Now those things - none of us want to go down that sort of track and to get into the technicalities of what my powers are, what they might not be over this matter. So I am sure if you can talk to your client the matter can be resolved.

PN96

MS MILLEN: Commissioner if I could say that this is not a matter of my client trying to avoid providing time and wages records to the employee by any means. This was the response to the notification of industrial dispute that was received. If appropriate to all parties, Commissioner, I am happy to enter into conciliation immediately in relation to trying to resolve this matter expeditiously and amicably.

PN97

THE COMMISSIONER: That is good, Ms Millen, I am pleased about that and so if you could talk to Mr Dunn. Work something out. Do you want to do that with my presence or are you - good. Well we will adjourn into an off the record discussion.

<SHORT ADJOURNMENT [11.46AM]
<RESUMED [12.14PM]

PN98

THE COMMISSIONER: Good. We are back on the record and progress has been made in the conciliation proceeding and I would ask Ms Millen if she could put on the record what she understands the employer is prepared to provide to Mr Dunn by correspondence.

PN99

MS MILLEN: Thank you, Commissioner. By correspondence following the conciliation I have received instructions from my client that they are prepared to provide to Mr Dunn in or about seven days time sheets relating – and this is in relation to Mr Linklater, for the last 12 months of his employment, wages paid for each pay period in the last 12 months of his employment and his details of wages paid. Details of his accrued annual leave balance 12 months before the end of his employment and his accrued annual leave balance on resignation of his employment. A summary of payments made on resignation and thereafter and details of superannuation contributions paid in the last 12 months of his employment.

PN100

THE COMMISSIONER: Good. Thank you, Ms Millen. Mr Dunn, will that satisfy the Transport Workers Union when it is received and what does that mean in terms of the application you have made?

PN101

MR DUNN: The application – we will be satisfied once we receive them within, in or about seven days and once we have gone through them and we have gone over them with Ross to work out how much he is entitled to or if he has reached his amount or whatever else it comes and works out to but as far as the application we will have no more use for the application for not allowing us to do the time and wages check.

PN102

THE COMMISSIONER: Good. Thank you, Mr Dunn.

PN103

MR DUNN: Thank you, Commissioner.

PN104

THE COMMISSIONER: So I take it the TWU when it receives the information provided it is in line with what Ms Millen has outlined, will be agreeable to withdrawing its application?

PN105

MR DUNN: Yes Commissioner. Can I just ask would it be faxed or mailed?

PN106

MS MILLEN: Depending on the volume of the information.

PN107

THE COMMISSIONER: Yes.

PN108

MS MILLEN: And how many pages may dictate which is the most convenient way.

PN109

THE COMMISSIONER: Yes. Good.

PN110

MS MILLEN: It will be either.

PN111

THE COMMISSIONER: Thanks, Ms Millen. At the commencement of this proceeding Mr Dunn outlined his concerns regarding member Ross Linklater and the difficulties he was experiencing in obtaining access to time and wages records which led to the application seeking an order to allow access to the premises under section 285B of the Workplace Relations Act. Ms Millen argued that as Mr Linklater is no longer employed by Parts Direct that section 285B of the Workplace Relations Act didn't give an entitlement to an officer of the TWU to inspect time and wages sheets.

PN112

Now that matter hasn't been resolved but there appears to be some substance in Ms Millen's arguments however we have gone into conciliation and I am pleased to note that the core issue which is that Mr Dunn will now be provided with the required information to allow him on behalf of Mr Linklater to advise his member of his entitlements will be provided by Parts Direct by correspondence and that should be the end of the matter when that information is provided and I can only hope that if there is evidence of some deficiency in the payment of entitlements that Parts Direct will then make those payments appropriately and I am sure that will be done. Any comment by either of the parties?

PN113

MS MILLEN: Commissioner as I understand it no further action will be taken by the union in relation to the alleged refusal to permit right of entry.

PN114

THE COMMISSIONER: That is correct. In relation to the right of entry matter but if there is any evidence of underpayments the employer, Parts Direct, obviously can expect to be spoken to by either Mr Linklater direct and/or his union, the Transport Workers Union.

PN115

MR DUNN: Yes Commissioner.

PN116

THE COMMISSIONER: Good. This matter is adjourned.

<ADJOURNED INDEFINITELY [12.19PM]