C2004/308, Transcript of Proceedings [2005] AIRCTrans 299 (8 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10242

COMMISSIONER MANSFIELD

C2004/308

s.170LW - application for settlement of dispute (certification of agreement)

Transport Workers' Union of Australia
and
Swire Cold Storage Pty Ltd
(C2004/308)
Cleland Cold Stores (Aust) Pty Ltd (Transport Workers Victorian) Agreement 2002

Melbourne

10.01AM, FRIDAY, 28 JANUARY 2005

Continued from 25/10/2004

PN1

MR H SMITH: I appear on behalf of the Transport Workers Union. Immediately along side me, MR F BUTERA and behind me, MR J WALL and MR T CLARKE, two employee representatives.

PN2

MR D JURY: I appear with MR D JURY and MS L BRISCOE to my left.

PN3

THE COMMISSIONER: Thank you. Good to see you both. Now, it's a section 170LW, which means, are you familiar with it Mr Jury?

PN4

MR JURY: No.

PN5

THE COMMISSIONER: Well, it is effectively the disputes procedure includes in it a reference on matters than cannot be resolved between the parties, they can come to the Commission for consideration and if necessary, some arbitration. They normally don't get to that point.

PN6

And so the TWU is notified a dispute, by virtue of the certified agreement you can given the Commission authority to have an involvement in the dispute and what we normally do is, first we get a very general statement on the record as to what the dispute is all about and the notification says, it's about the functions being required of drivers at the Dandenong Distribution Centre which are contrary to the agreement. That's the simple two line statement of the dispute. Now I will ask Mr Smith to give us a very general statement, which is only a broad over view. Then I will ask you to give a broad over view and then I will suggest to the parties that we will go into conference and we will attempt to resolve the matter in conference. So Mr Smith?

PN7

MR SMITH: Thank you, Commissioner. This matter was before you once before, I think, back in about October. I have not got the actual date, where we went into conference. Arising out of that, we suggested that we talk to the company a bit more. It is really a dispute about highest function. Not that our members won't do the work that is requested by them of the company, but how they are rewarded. At this stage we are saying that they are not rewarded at all and that people who are members of the NUW are paid a higher rate of pay for carrying out the same work.

PN8

Now while I never physically met with Lorna, we did speak on the phone again and it appeared that the company's position was quite firm. As stated previously they believe this matter should be held over until the next enterprise agreement.

PN9

THE COMMISSIONER: To the next EBA negotiations, yes. When are they due to start, or have they already started?

PN10

MR SMITH: The agreement expires, I think, on the 30 June. I am just checking it. Their view is that it should be held over until then. We have a contrary view, is for each day or week or month that passes, payments that we would suggest that are due to our members, they don't get ---

PN11

THE COMMISSIONER: What is the level of under payment that you believe is occurring, Mr Smith?

PN12

MR SMITH: Well, they don't get - even if you take in the email that was sent to you about the $40, that is not payable for all purposes. And if they don't front for work then they lose, I understand, one fifth of it. Where as the NUW rates that, we are comparing against, to the best of my knowledge, are all purpose rates so they would feed into overtime.

PN13

THE COMMISSIONER: Just remind me again please about what is the cause of the underpayment?

PN14

MR SMITH: Well, they have our members carrying out work traditionally done by NUW, which is a picking up of freight, bringing it to the back of their vehicles, in the chiller area mostly, I think, but also occasionally in the freezer area.

PN15

THE COMMISSIONER: Yes.

PN16

MR SMITH: And the company purport that there is an agreement for our members to do that.

PN17

THE COMMISSIONER: And if they were employed permanently on the picking up of and loading functions and the NUW type functions, they would be getting a higher rate than they currently get?

PN18

MR SMITH: Correct.

PN19

THE COMMISSIONER: And that is the basis of your argument?

PN20

MR SMITH: Yes. I mean even if you take the $40.50 and convert that to an hourly rate, using one 38, and that is a very inaccurate method because these guys work more than a 38 hour week. But even if you do that that is a most generous way of doing it, they would be on $18.81 which is still behind the NUW people, and of course, they didn't get the chiller or freezer allowance.

PN21

THE COMMISSIONER: When you say $40.50, I notice that there is an amount of $40.50 in subclause 1.2 in the memorandum of understanding section of the EBA. Is that the $40.50 that you are referring to?

PN22

MR SMITH: Correct. Yes, the 1.2.

PN23

THE COMMISSIONER: Is that, a general $40.50 allowance that occurs for all purposes, or what is it?

PN24

MR SMITH: No. It is not all purposes and they loose $12 of it. It goes to make up pay.

PN25

THE COMMISSIONER: Accident make up pay.

PN26

MR SMITH: But if they don't front for a day, if they are off sick, it is my understanding they also loose one fifth of that again.

PN27

THE COMMISSIONER: Yes. Okay.

PN28

MR SMITH: That is my understanding, Commissioner.

PN29

THE COMMISSIONER: So, a driver is paid at what the, is it the grade 6 or what?

PN30

MR SMITH: Grade 6 is $17.77.

PN31

THE COMMISSIONER: $17.60?

PN32

MR SMITH: $17.77 an hour I have got from notes last time.

PN33

THE COMMISSIONER: According to the EBA as at July 1 2004?

PN34

MR SMITH: Yes, it says that in the EBA as I say Commissioner, but in my notes from - - -

PN35

MR JURY: The, company gave an increase of one per cent earlier in the year.

PN36

THE COMMISSIONER: Okay. It took it up to?

PN37

MR JURY: It took it up to $17.77.

PN38

THE COMMISSIONER: $17.77.

PN39

MR SMITH: I believe them.

PN40

THE COMMISSIONER: And on top of that, they get the $40.50?

PN41

MR SMITH: Correct.

PN42

THE COMMISSIONER: Yes.

PN43

MR SMITH: Which $12.00 is - - -

PN44

THE COMMISSIONER: With the $12.00 coming out so they effectively get $33.00. With one fifth of that - - -

PN45

MR SMITH: $28.50 and then I assume if they are off a day, one fifth of that comes off the full $40.50.

PN46

THE COMMISSIONER: Yes. Sorry. Yes. Okay. Just take me, Mr Smith, I know I am interrupting you and you have probably got a particular presentation that you want to make but the function you talk about is, take me through that again please?

PN47

MR SMITH: What I get asked to do, and this has not always been the case within the company, well I suppose the best way to put it is, when it is quieter and there are, or the company are short staffed in terms of NUW personnel, they get asked to go in and do work, mainly I understand the chiller area and that is bringing the freight up to where it would normally be loaded on the vehicle.

PN48

THE COMMISSIONER: So they go into the chillier area.

PN49

MR SMITH: Yes, and occasionally to the freezer area.

PN50

THE COMMISSIONER: Collect some goods. On a fork lift, are they, or what are they?

PN51

MR SMITH: Hydraulic trolley.

PN52

THE COMMISSIONER: Hydraulic trolley. Take it out. Take it up to the truck.

PN53

MR SMITH: To the rear of the vehicle.

PN54

THE COMMISSIONER: To the rear?

PN55

MR SMITH: To be loaded.

PN56

THE COMMISSIONER: Is this a vehicle that they are driving or is it?

PN57

MR SMITH: No.

PN58

THE COMMISSIONER: They are loading the vehicle.

PN59

MR SMITH: But you may not load, it may not be your own vehicle. So they are taking it up - - -

PN60

THE COMMISSIONER: And they are doing it on a daily - what proportion of the working hours in the day would they be doing that? Are they required to do that over the whole of the eight hour shift or whatever the shift length is or?

PN61

MR SMITH: Some days they are asked to do it more and they carry out those functions more on some days than others I am informed, Commissioner.

PN62

THE COMMISSIONER: Yes. So some days it could be only a couple of trips into the cold storage area and some days it could be what, 10 trips into the cold storage area?

PN63

MR SMITH: And other days it may be none.

PN64

THE COMMISSIONER: Okay. All right. Good.

PN65

MR SMITH: Look at this stage, I mean I am more than happy to go into conference if that is the view of the Commission and the company but at this stage, if we can't resolve it, and that seems unlikely then I see no alternative - - -

PN66

THE COMMISSIONER: What is your suggested resolution, Mr Smith?

PN67

MR SMITH: We want to have people to be paid the same rates of pay as the NUW when they are carrying out that work, Commissioner.

PN68

THE COMMISSIONER: And that would require an extra how much?

PN69

MR SMITH: Well, the difference at the moment between the two rates - as I said - and it is not an accurate or easy way to do, but even if you just look at the base. Our base grade 6 and their level 1, you are still talking about - and that is taking the $40.50 into account, you are still talking a deficiency of 15 cents an hour and that does not include the chiller or the freezer allowance.

PN70

THE COMMISSIONER: Right. So as you say, it may be a little bit complex to do the calculation, to establish what the individual - - -

PN71

MR SMITH: Well, it may differ for different groups of workers.

PN72

THE COMMISSIONER: Well, let's just stand the chiller issue aside for the moment. You are saying that the work the TWU members are required to carry out, is equivalent to that which is the function of a stores type worker and that person gets a higher rate than the grade 6 driver.

PN73

MR SMITH: Correct.

PN74

THE COMMISSIONER: Okay. Now is that work, standing aside the chiller, and how many times they go in there every day - in the cold store - they carry out that work over the full 38 hour week, or whatever the working week is?

PN75

MR SMITH: The NUW or our people?

PN76

THE COMMISSIONER: Your people.

PN77

MR SMITH: No. They would do some driving as well, Commissioner.

PN78

THE COMMISSIONER: Do some driving as well.

PN79

MR SMITH: Well, I mean I would have thought a majority of their work is still driving.

PN80

THE COMMISSIONER: Majority are still driving but a proportion is this stores type?

PN81

MR SMITH: And worse on some days than others I am informed.

PN82

THE COMMISSIONER: So, what would you seek happens, that it is paid on a hourly basis or it is paid on a half day basis or a day basis or what?

PN83

MR SMITH: Well I mean, all I can do is say what the award currently provides.

PN84

THE COMMISSIONER: And what does the award say?

PN85

MR SMITH: And that is normally you would be paid the higher rate for the whole day.

PN86

THE COMMISSIONER: For the whole day. So once you have worked for, is there a threshold amount of time though? Is it is one hour, two hours, three hours? Like if you do 10 minutes work are you paid for the day?

PN87

MR SMITH: Under the mixed industries award, if you do it, you do it, and you are paid the higher rate for the day. Now that normally would equate to driving say a larger vehicle but here, I mean our members don't normally don't carry out these functions.

PN88

THE COMMISSIONER: Yes.

PN89

MR SMITH: The agreement provides for higher function and doesn't limit it just to vehicles.

PN90

THE COMMISSIONER: If there was a proposition, for example, after they carry out this work for say two hours in a day, they get the higher rate for the day, has that sort of proposition been discussed between the parties?

PN91

MR SMITH: No.

PN92

MR JURY: No.

PN93

MR SMITH: So I mean we can't even, we haven't even been in a position to, without prejudiced - considering that sort of proposal. It`s the company's position, I got to say they have been consistent about it is, they don't want to pay.

PN94

THE COMMISSIONER: Deal with it in mediation.

PN95

MR SMITH: They don't want to pay it. They don't believe they have to pay it and put it off until the enterprise agreement.

PN96

THE COMMISSIONER: Well, yes. But as the company would understand that normally if people are required to do work which is paid above the rate they are employed to do, then higher duties is applicable, but I don't think any reasonable person would say if I am required to do that for five minutes in a day, I get paid for the full day, but there maybe a - - -

PN97

MR SMITH: I don't believe that is what is happening.

PN98

THE COMMISSIONER: No, I know. You are not saying that, Mr Smith, but perhaps there is a basis here, if there is a threshold put in, where over that threshold people get paid for higher duties on the understanding this whole matter will be up for reconsideration with the EBA negotiations. May be that is something that could be talked about but anyway, okay. But now on top of that you would say, I am just talking here about the general comparison of the rate between the NUW worker and the TWU worker, your saying, I think I heard you say 15 cents an hour or thereabouts.

PN99

MR SMITH: That's on their lowest level.

PN100

THE COMMISSIONER: Yes. Compared to your grade 6.

PN101

MR SMITH: If you put out $40.50 on top of the grade 6 rate, you are still taking 15 cents an hour.

PN102

THE COMMISSIONER: 15 cents an hour.

PN103

MR SMITH: And that doesn't take, as I said, take into account the chiller or freezer.

PN104

THE COMMISSIONER: Well eight times 15 cents on my calculation, although my arithmetic earlier was pretty dubious is $1.20, I think. 15 cents an hour times eight is, yes it is $1.20 a day. Now the chiller allowance is on top of that again and what is the chiller allowance worth?

PN105

MR SMITH: The chiller is $40 I think. Yes so you are talking about $3.20 there.

PN106

THE COMMISSIONER: So that's $40 per week chiller allowance and again you might have a threshold there. Okay, now Mr Smith I understand the position. I have interrupted you many times but have you anything else you want to put on the record.

PN107

MR SMITH: Only to say that if we are not able to resolve it in conference then I see no alternative for the matter to be set down for another day and we do written submissions, Commissioner.

PN108

THE COMMISSIONER: Yes. Certainly. All right.

PN109

MR SMITH: Other than that I have probably had enough to say this morning.

PN110

THE COMMISSIONER: Thanks, Mr Smith. Now Mr Jury or Ms Bristow do you wish to put anything on the record because what I am going to propose to the parties is that at this stage we just go off the record and have some discussions, I think there is a basis to resolve this by agreement and what I would be thinking about is there could be a without prejudice agreement which will operate between now and the next EBA. Okay. And the whole matter could then be reconsidered as part of the next EBA, but you would have to understand of course if even though it is without prejudice to your negotiations, if there was a situation put in place where the company recognises that if people perform certain functions they will get allowances that you would have to understand that people will not go backwards from that. So I am sure that the practicable side of that is appreciated. But do you want to put anything on the record otherwise we will go into conference?

PN111

MR JURY: If I could please, Commissioner, I suppose where we come from is traditionally the company was owned by a company called Clelands and the drivers used to traditionally load their vehicles. We had some OH & S issues about six or seven years ago and the warehouse decided no they will take it over because they had a better control of it.

PN112

THE COMMISSIONER: Yes.

PN113

MR JURY: Okay, traditionally they have done that at our distribution centre for the Coles work. When we did our EBA, we had a clause in there that said that the driver was responsible for the loading and the unloading of the vehicles, knowing full well that at a lot of places where they have to go to they have to physically load and unload themselves, okay. Yes traditionally the NUW have done the work at our Coles site. What we have also said is in clause 3 - - -

PN114

THE COMMISSIONER: Sorry, Mr Jury, you said your Coles site. You have a depot which services the Coles work.

PN115

MR JURY: Coles DC?

PN116

THE COMMISSIONER: Okay.

PN117

MR JURY: It is a tradition where most of this occurs. We have got a situation where the warehouse may be behind with labour. My guys are sitting there waiting for work so get in, sort of give everyone a chop out.

PN118

THE COMMISSIONER: Yes. Now, all of these people, like the warehouse people are employed by you as well?

PN119

MR JURY: All by the same organisation, different EBA. Just that with our EBA in clause 10 where it has got in terms of the agreement during normal terms set out in clause 2, there shall be no claims for wages and allowances. So I suppose I am sticking my head in the sand a bit and, as a sort of matter of principle. You know there is a process to deal with this and it is during our EBA discussions and traditionally the guys load and unload the vehicles pretty much, I suppose, 80 per cent of the sites they go to. So I see no difference and it is purely the fact that, okay yes, the NUW have a higher rate of pay. But the NUW do other functions in there other than just load trucks and I suppose that is where we are coming from.

PN120

THE COMMISSIONER: Okay. Good. Well we will go off the record and go into conference and see if we can resolve this.

<NO FURTHER PROCEEDINGS RECORDED