AG2005/2709, Transcript of Proceedings [2005] AIRCTrans 985 (22 April 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11240-2

COMMISSIONER DANGERFIELD*

AG2005/2709

APPLICATION BY GARRY WILLIS TRANSPORT PTY LTD AND ANOTHER
s.170LK - Agreement with employees (Division 2)
(AG2005/2709)

ADELAIDE

9.43AM, WEDNESDAY, 13 APRIL 2005

PN1

MR S SHEARER: I am from the South Australian Road Transport Association and I appear on behalf of Garry Willis Transport. With me is MR G WILLIS, the owner, and MR M WILLIS, the elected employee representative.

PN2

THE COMMISSIONER: Thanks, Mr Shearer.

PN3

MR SHEARER: Thank you. If it please the Commission, this is an application under division 2, Part VIB, section 170LK of the Workplace Relations Act or a certified agreement to be called the Garry Willis Transport Certified Agreement 2005. The company primarily performs long distance operations in the road transport industry and principally from Adelaide to Perth, Sydney and Melbourne but it does do some other work. They have three employees - two of whom are sons of Mr Willis, and the third is not - those three employees would be covered by the agreement. The company discussed the development of the agreement with the employees over several meetings and as a result all employees, all three of them, were directly involved. However, on 18 January they formally elected
Mr Mark Willis as their representative having been advised previously of their rights to representation verbally. On 19 January 2005 the employees were formally advised in writing of their rights in accordance with section
170LK(4) and that the company proposed to make the agreement that had been discussed with them over the previous meetings.

PN4

The agreement was subsequently signed by the employees. On 3 February, one of them signed, and the other two on the 17th. The agreement and application had been lodged on 10 March 2005. This is not a complex agreement, essentially it provides for payments at the award hourly rates of pay as per the Transport Workers Long Distance Drivers' Award for the vast bulk of the work and the Transport Workers SA Award for the local work. In relation to the long distance award, the agreement adopts the hourly rate method under the long distance award as set out in clause 19.42 and identifies some agreed average speeds of 90 and
85 kilometres per hour. In essence, that is probably the key point of the agreement, just specifying what those average speeds will be. Those speeds are safe and consistent with the speeds that are provided elsewhere in the award and they are able to be performed legally and sustained. The agreement also provides for a flat rate of $150 for the work to Port Pirie. Now, that journey to Port Pirie, per trip there and back, is a seven and a half to eight hour journey. For a grade
6 driver, that would be $118.90 under the award and for a grade 8 driver it would be $125.13.

PN5

So the $150 which is a flat rate, the reason for that is it is not a trip that is as attractive to drivers to do so there is an additional incentive for them to do it. All award increases will be passed on under the agreement, dispute resolutions provisions are set out at clause 3 including reference of matters to the Commission under 3.1.3. The agreement would be for three years as set out in clause 7 and non-discrimination provisions are set out in clause 21. If it please the Commission.

PN6

THE COMMISSIONER: Yes. The reference to the regular increases - - -

PN7

MR SHEARER: That's the no further claims clause, 5.1.

PN8

THE COMMISSIONER: 5.1, yes.

PN9

MR SHEARER: You will note that it says other than national wage case safety net increases, so all award increases will be passed on. And of course, the company is still able to pay additional amounts if and when it should ever determine to.

PN10

THE COMMISSIONER: Yes. The only thing I would say, I mean the agreement doesn't specifically say that national wage case safety net increases will be passed on. I mean, that is clearly the intention.

PN11

MR SHEARER: Yes. That is clearly the intention.

PN12

THE COMMISSIONER: But all if says is there that no other claims other than national wage case safety net increases. That's clearly the intention to apply them but it doesn't specifically say that in clause 8, does it?

PN13

MR SHEARER: No. And we could word that differently, too, to make it- - -

PN14

THE COMMISSIONER: Well, as long as the parties are clear that that is the intention, Mr Willis, isn't it?

PN15

MR WILLIS: Yes.

PN16

THE COMMISSIONER: The safety net adjustments to be applied, whatever increases come through in the award apply during the period of the agreement. I think that's fine. The only other question I had was just a simple little one in regard to clause 3, the disputes procedure, it's actually 3.1.6. It says that:

PN17

The parties will agree that during the time when the parties attempt to resolve the matter, point 1, point 2, point 3, the parties must cooperate to ensure the dispute resolution procedures are carried out as quickly as is reasonably possible, and -

PN18

There's nothing missing there?

PN19

MR SHEARER: No. Thank you. That's an omission in making an adjustment to what had been a standard clause and following a couple of comments from other Commissioners about the subsequent meaning of that we dropped that out of subsequent agreements but we missed taking out the `and'.

PN20

THE COMMISSIONER: Okay. So there is a full stop at the end of - - -

PN21

THE COMMISSIONER: There is a full stop after `possible'. I think we can just note that, unless you want to supply a replacement page?

PN22

MR SHEARER: Yes. I am happy to do that. And thank you for noting that, that's something we have missed in - - -

PN23

THE COMMISSIONER: Look, it is not going to affect the interpretation of the agreement, but when I saw that there I just thought I would raise it just in case there was something missing, and I felt there probably wasn't, but I just thought I should raise that. So, perhaps a replacement page on that, Mr Shearer, that should be fine.

PN24

MR SHEARER: I will email that today.

PN25

THE COMMISSIONER: Now, Mr Mark Willis, anything you want to add on the procedure? Are you quite happy with the procedure that was followed?

PN26

MR WILLIS: All happy.

PN27

THE COMMISSIONER: No major questions that the employees had in regard to the agreement or anything like that? No major problems?

PN28

MR WILLIS: No, all happy.

PN29

THE COMMISSIONER: I can indicate then formally that this is an application under division 2 of Part VIB of the Act for certification of an agreement pursuant to section 170LK. The application is supported by statutory declarations on file from Garry John Willis, transport operator, the employer in this matter and Mark Willis, a duly elected employee representative employed by the company. Those declarations are in order. The underpinning award for the Transport Workers Long Distance Drivers Award 2000 and the Transport Workers South Australia Award, which is an award of the South Australian Industrial Relations Commission, the agreement has been tested against those awards in terms of the no disadvantage test. And having compared the provisions of the agreement with those of the award I am satisfied that the agreement passes the no disadvantage test. I am also satisfied that the agreement, in every respect, pertains to the relations of the employer and the employees in their respective capacities as such and hence complies with section 170LI of the Act.

PN30

I note that the agreement in clause 3 includes procedures for preventing and settling disputes between the parties. I am satisfied on the material before me that a valid majority of persons employed at the time genuinely approved the agreement and that the explanation of the terms of the agreement took place in ways that were appropriate. In view of all this, the Commission certifies the Garry Willis Transport Certified Agreement 2005 with effect from today's date, that is on and from today's date, 13 April 2005 and in accordance with clause
7.1 it will remain in force for a period of three years from today's date. The necessary documentation confirming certification will be forwarded to the parties, and I could indicate to Mr Willis that we send out a formal signed version of the agreement that just records that the Commission has formally certified the agreement. It becomes law as from today. Is there anything further from anyone for the record? No? That being the case, that disposes of the hearing of the matter. The Commission stands adjourned.

<ADJOURNED INDEFINITELY [9.52AM]