C2005/1319, Transcript of Proceedings [2005] AIRCTrans 484 (25 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10543

COMMISSIONER TOLLEY

C2005/1319

s.99 - notification of an industrial dispute

Marchetti Transport
and
Transport Workers' Union of Australia
(C2005/1319)

MELBOURNE

12.59PM, THURSDAY, 17 FEBRUARY 2005

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

PN1

MR B IRONMONGER: I appear with MR BERNARD and
MR R MARCHETTI. Mr Bernard is next to me and Roland is the furthest one.

PN2

MR D HERBERT: For the Transport Workers' Union.

PN3

THE COMMISSIONER: I am glad someone has got a good voice, Mr Herbert. And I presume the gentlemen sitting with you are delegates, Mr Herbert?

PN4

MR HERBERT: That is correct, Commissioner.

PN5

THE COMMISSIONER: Thank you. Yes, Mr Ironmonger?

PN6

MR IRONMONGER: Thank you, Commissioner. Last night,
Commissioner - - -

PN7

THE COMMISSIONER: Mr Ironmonger, you will have to raise your voice, because I am sure they cannot hear you properly in Sydney.

PN8

MR IRONMONGER: Commissioner, at approximately 3.54 last night I received a message from my secretary advising:

PN9

Urgent, going to stop work tonight at Marchetti Transport. Please ring John Walters in Sydney re. the above.

PN10

I tried to ring Mr Walters between four and 4.30 to ascertain what was going on. He did advise me there was going to be a stop work meeting. By way of background, Commissioner, there has been ongoing discussions with TWU and Marchetti Transport for the last month. Approximately a month ago, the line, the shuttle drivers from Sydney to Melbourne refused to go to work until certain undertakings.

PN11

It caused considerable inconvenience to the company where the shuttles were about three or four hours late. I then contacted Mr Walters the following day and then undertook to listen to his concerns. He faxed me a document with a number of concerns and we agreed to meet in Sydney last Thursday, which we did to discuss these issues. Subsequent to that, now by way of background, the company does have an enterprise agreement which is document N8661. It is an enterprise agreement which was certified by the TWU and the company.

PN12

Commissioner, this document is some years of age, and the company does not pay those rates which are in the enterprise agreement but have been updating those rates ever since the thing was certified by the Commission. The issue between the union and the company, of this week, I rang Mr Walters on Monday to advise him that the company had decided to put a tow operator on the run from Sydney to Holbrook. I advised him that it would be a requirement that one of the shuttle drivers would have to go and one local driver because a tow haulier would pick up that work.

PN13

I advised him that we had asked for expressions of interest from the existing workforce and if not we would use the last on, first off basis. His advice to me was, that was fine, and I heard nothing more from him until this message I got on Thursday night. That is the issue of dispute in a thumbnail sketch, Commissioner. If the Commission pleases.

PN14

THE COMMISSIONER: Yes. Mr Herbert do you have anything that you want to say?

PN15

MR HERBERT: Yes thank you, Commissioner. That notification - - -

PN16

THE COMMISSIONER: Mr Herbert, you are still in the formal hearing in the Commission.

PN17

MR HERBERT: Sorry, Commissioner. That notification that we were given from the company was only received yesterday, with the company notifying employees that that had to take place by tomorrow, no formal notification. Mr Walters has been in negotiations with the company in respects to the agreement that the company has with employees, which I must admit is dated in 1996. The current rates that the company are paying for these Holbrook changeovers are well under the Transport Industry Federal Long Distance Award. The company has acknowledged that fact and sent their notification back to Mr Walters dated 3 February. It has also responded to the - - -

PN18

THE COMMISSIONER: Can I just stop you there, Mr Herbert, because I have only just received some documents. I have got to say the notification sent to the Commission was probably exemplary in its lack of information. It is not good enough. And you do not have to answer that now, Mr Ironmonger I just want to make sure I have got a copy of that document you just mentioned and it appears that I haven't. Should I have it, Mr Ironmonger?

PN19

MR IRONMONGER: The enterprise agreement, Commissioner?

PN20

THE COMMISSIONER: No, the correspondence Mr Herbert just referred to.

PN21

MR IRONMONGER: I can give you a copy of that.

PN22

THE COMMISSIONER: I have got it in front of me now, Mr Herbert.

PN23

MR HERBERT: As you will see Commissioner, it refers to the discussions that Mr Walters had with the company in respects of rates of pay, telephone calls and the like. It is itemised down the line. The company had agreed to get back to that and the union did notify the company that they wished to rescind the current agreement and have it updated. Now, since this notification has gone through, the company has now elected to, let us say, in a hastily way, restructure their operation pointing more or less to the disputes procedures and everything else. We are at a loss. Mr Walters did contact the company and said, look, because of the short notice, you are probably asking for trouble here.

PN24

The company has now put us in the Commission on the notification of future or pending industrial action. That is not the case. The union still wishes to meet with the company to try and structure something in a way of a redundancy package for these blokes or in a way of coming up with an agreement that can be amicable for both parties. The current situation at the moment that it revolves around is that the drivers are getting paid $220 to do an equivalent of a 936 km run, which is well under the Transport Industry Long Distance Award. The company has recognised that.

PN25

They also recognise that the drivers are paying for their own phone calls as none of these vehicles are equipped with telephones and have not paid in the past the phone bills that the drivers have asked. The fact of the truck repair scenario in respects to any truck that has a defect or problems with it in the Sydney side of things, has to wait until it gets to Melbourne. Now, this company is asking the vehicles to travel down a highway unsafely. We have noted that of the company.

PN26

RDOs. The company has more or less told us that RDOs are not paid as the extra hours are not accrued. In the hours that it takes to get to Holbrook and back to Sydney, these drivers are actually breaching the New South Wales Motor Traffic Act and the actual Driving Act. The standard consensus is in New South Wales for what they call changeover scenario, is Tarcutta, and if the Commissioner is probably not aware, Tarcutta is another - - -

PN27

THE COMMISSIONER: The Commissioner is very well aware of the road between Melbourne and Sydney having only lived in Melbourne for 15 years, but before that lived in Sydney and travelled frequently up and down that road. Just for your information, I am a past president of the National Road Transport Industrial Organisation and a union official with transport responsibilities some years ago from the Labour Council of New South Wales. I thought your colleagues would have drummed you up about that.

PN28

MR HERBERT: Sorry, Commissioner. Mr Walters - - -

PN29

THE COMMISSIONER: Well, Mr Walters wasn't around in my day either.

PN30

MR HERBERT: My apologies, Commissioner. However, I understand the Commissioner knows exactly then where Tarcutta and Holbrook are in the geographics of things. The smoking in the trucks, the union and the employees agree that yes, there is an OH&S issue in this and don't have a problem with that. Breakdown times, currently that is not being paid. The letter from the company states that breakdowns in impassable highways will need to have more information at this point. Local drivers, driving awards and rates, it has come to the union's attention in a lot of respects that drivers who are doing local work in some cases are drivers that are coming up as interstate work and are being underpaid at the hourly rate. These are the sort of things that we need to address with the company.

PN31

We have been doing this since about the end of November, I believe, Commissioner, and we felt that we were actually starting to come to some terms with the company. Mr Walters sent a letter to the company and that was the reply that the company gave back to us. We think we are still in an arrangement and now all of a sudden the company has come out with this major restructure and asked that the two employees cease and the subcontractor they are going to put on, by his own admissions, my friend there said that he would be doing the long haul work plus the labour work. They are actually asking that bloke to exceed the New South Wales Driving Act in respects of hours of work. It can't be done. And the union seeks now that the company has put this matter in dispute that the decisions of the Commission to try and get back to some negotiations.

PN32

THE COMMISSIONER: Yes, thanks, Mr Herbert. Anything further to say, Mr Ironmonger?

PN33

MR IRONMONGER: I refute the allegation the company is breaking any laws. We are particularly - - -

PN34

THE COMMISSIONER: Well, I did not expect you to agree to it.

PN35

MR IRONMONGER: No. They are applying the award, the enterprise agreement. There is no breach, is my submission to you, Commissioner, and we are happy to go into conference and discuss the matter further if you wish.

PN36

THE COMMISSIONER: Well, I find myself at a disadvantage. I have got to say I am not in the habit with having conferences over video links. I detest them. They are unsatisfactory in my view. However, you said at the outset, Mr Herbert, that there is no intention to indulge in the industrial disputation, is that correct?

PN37

MR HERBERT: Not at this stage, Commissioner. We are still able and open for amicable agreement into further negotiations and discussions with the company.

PN38

THE COMMISSIONER: Now, you mentioned the agreement that was certified in '96 and you indicated an intention to rescind. Have you lodged documentation with the Commission to rescind that agreement?

PN39

MR HERBERT: We have intentions of doing that. Mr Walters has got that with our legal department at the moment, however, this has hit us with virtually limited notification and I was unable to get that notification from our legal department prior to coming to the Commission today.

PN40

THE COMMISSIONER: Yes. All right. Well, as far as I am concerned, the parties should enter into discussions between themselves with no action being taken by either party for at least seven days and they should report back to this Commission. I had better check my diary before I make silly statements about days because I always make the wrong comment. Now, is Monday, the 1st, a public holiday? No, so that is all right.

PN41

Pursuant to section 111(1)(t) of the Workplace Relations Act the Commission directs the Transport Workers' Union of Australia and in particular, the officers of the New South Wales branch of the union and the elected delegates of Marchetti Transport at the Sydney site, to enter into discussions with the principals of Marchetti Transport and their industrial adviser if necessary to try and resolve the matters that are before the Commission.

PN42

The parties will report to the Commission via telephone prior to Thursday,
3 March as to the progress of the matter. If the Commission forms the view that not enough work or effort has been put into it, the Commission will decide whether the matter will be re-listed for hearing and I can assure you, gentlemen, it won't be by video conference but it will be somewhere in between Sydney and Melbourne.

PN43

MR HERBERT: Thank you, Commissioner.

PN44

MR IRONMONGER: Commissioner, to make my point.

PN45

THE COMMISSIONER: Yes, Mr Ironmonger?

PN46

MR IRONMONGER: Today we have two drivers in the company. There are four shuttle drivers. The number of employees in the Sydney depot would constitute one delegate under New South Wales state legislation. When we met last week, the union wanted to bring two delegates. We said no, you can only bring one. Today, this second driver cannot drive tonight because he would be out of hours. Now this is total disruption to the company.

PN47

THE COMMISSIONER: Well, that is why I have given so much notice, so that people can arrange things.

PN48

MR IRONMONGER: Yes, without bringing two delegates, I am saying - - -

PN49

THE COMMISSIONER: Well, that is not for you to decide. They might need two delegates. Workers have got a situation at sites, Mr Ironmonger, and you have been around long enough to know this, where they don't just trust one delegate and go to the Commission.

PN50

MR IRONMONGER: There is only four employees - - -

PN51

THE COMMISSIONER: Well, I am not going to enter into that. You know what the problem is as well as I do. You have been around as long as I have and as long as I have in this industry as well. All right. I have made my decision pursuant to section 111(1)(t) and it stands. The Commission is adjourned. Thank you.

<ADJOURNED INDEFINITELY [1.14 PM]