C2005/454, Transcript of Proceedings [2006] AIRCTrans 105 (31 January 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13974-1

COMMISSIONER MANSFIELD

C2005/454

TRANSPORT WORKERS’ UNION OF AUSTRALIA
AND
LINFOX ARMAGUARD PTY LTD
s.99 - Notification of an industrial dispute
(C2005/454)

MELBOURNE

2.00PM, FRIDAY, 13 JANUARY 2006

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

PN1

THE COMMISSIONER: Can you hear us in Canberra?

PN2

MR PINKAS: We can, Commissioner.

PN3

MS H RYALL: I am from the Transport Workers Union. My colleague,
MR K PINKAS, can run you through the dispute and he will speak on behalf of the union in this matter.

PN4

THE COMMISSIONER: Your appearance is noted, Mr Pinkas.

PN5

MR G WATSON: I seek leave to appear for the company, with MR R KRAJEWSKI and MS D WHITE, who are in Canberra.

PN6

THE COMMISSIONER: Mr Krajewski? Not the foremost CEPU Krajewski, is it?

PN7

MR WATSON: One and the same, Commissioner.

PN8

THE COMMISSIONER: One and the same? There you go. How times change. Good. This is a notification under section 99 of the Workplace Relations Act from the Transport Workers Union of Australia regarding Linfox Armaguard. Now, my understanding of the issue is that a member of the Transport Workers Union had been employed for a period of time as a casual and he sought to exercise his right to transfer from casual to permanent employment. Linfox, I understand, has offered the employee permanent employment, but as a part-time employee, not as a fulltime employee. Am I correct so far?

PN9

MR PINKAS: Correct, Commissioner.

PN10

THE COMMISSIONER: Yes. And the employee is seeking that he be fulltime rather than part-time?

PN11

MR PINKAS: That's correct.

PN12

THE COMMISSIONER: So perhaps, Mr Pinkas, you could take us through the arguments of the Transport Workers Union as to why the employee has a right to fulltime employment rather than part-time employment?

PN13

MR PINKAS: Yes, Commissioner. It's based on the Transport Workers (Armoured Vehicles) Award 2004, clause 13.4.6, Conversion of Casual Employment.

PN14

THE COMMISSIONER: Yes. I have it in front of me, Mr Pinkas.

PN15

MR PINKAS: Okay. Basically, to sum it up, our reading of it is that Mr Nott is entitled to nominate for permanent position based on his hours, over a year - - -

PN16

THE COMMISSIONER: Which subclause of 13.4.6 are you relying on, Mr Pinkas?

PN17

MR PINKAS: 13.4.6 - just a second, sorry, Commissioner.

PN18

THE COMMISSIONER: Is it (g) perhaps, that you - - -

PN19

MR PINKAS: Sorry, (h), Commissioner.

PN20

THE COMMISSIONER: Yes. So (h) states in part:

PN21

An employee who has worked on a fulltime basis throughout the period of casual employment has the right to elect to convert his or her contract of employment to fulltime employment -

PN22

et cetera. The employee concerned, is that Mr Nott?

PN23

MR PINKAS: That's correct, Commissioner.

PN24

THE COMMISSIONER: Is the gentleman alongside of you, I guess, is it?

PN25

MR PINKAS: It is, Commissioner. Yes.

PN26

THE COMMISSIONER: Good. Was he working as a fulltime employee during his earlier period of service as a - - -

PN27

MR PINKAS: He was working as a casual employee, Commissioner, but averaging over 40 hours per week - - -

PN28

THE COMMISSIONER: Sorry, yes. He was a casual, but he was working over 40 hours per week?

PN29

MR PINKAS: Yes. That's correct, Commissioner.

PN30

THE COMMISSIONER: Yes. As subclause (h) states:

PN31

An employee who has worked on a fulltime basis throughout the period of casual employment has the right to convert to a fulltime employment.

PN32

And you are alleging that Mr Nott's employment as a casual was on a 38 hour/fulltime basis?

PN33

MR PINKAS: That's correct, Commissioner. His average of a year, from when he commenced employment as a casual, was 41 hours. That's including overtime hours. Obviously it's over 40. He started in September 2004, so for that year, his average was 40.34 and his average since then has been 41.38.

PN34

THE COMMISSIONER: Yes. Now, you say average, Mr Pinkas. An average can disguise a lot of things. Is that an average which includes 20-hour weeks and 60-hour weeks or what? Or is it generally in the order of 40 hours?

PN35

MR PINKAS: It's generally in the order of 40. Some weeks are larger than others. Some days are larger than others, but based on a weekly average, it's 40 and some - I mean, the maximum weekly was probably 43, 44 hours a week. Is that correct, Mr Nott?

PN36

MR NOTT: Yes. Might be a few more.

PN37

MR PINKAS: A few more. So the maximum would have been about 44.5; the minimum would have been about 35, 32, something like that, Commissioner.

PN38

THE COMMISSIONER: Yes, and so what is the offer of Linfox, Mr Pinkas, to Mr Nott? For how many hours?

PN39

MR PINKAS: 32 hours, Commissioner.

PN40

THE COMMISSIONER: For 32 guaranteed?

PN41

MR PINKAS: Yes. The problem we have, Mr Nott has, with that is that other employees have been offered permanent part-time, of 24 hours, and then have not been able to convert to fulltime. So Mr Nott is worried that if he accepts that offer, then he negates his rights under the award to a permanent position, he will be parked in the 32-hour position forever, basically.

PN42

THE COMMISSIONER: So he's concerned that he might consistently get somewhere around 32 hours, rather than somewhere around 38, 40 hours?

PN43

MR PINKAS: Yes. Well, he's after a permanent fulltime position, Commissioner, with the company. He enjoys working with the company, but he's just worried that if he takes the 32 hours, that it might be only 32 hours.

PN44

THE COMMISSIONER: Yes. Good. Thanks, Mr Pinkas. Is there anything else you want to say in regard to the facts of this matter?

PN45

MR PINKAS: Just that it has actually - we have had a conference in front of Commissioner Deegan on 2 November and the Commissioner suggested that the company make an offer and the offer was made after that period of time. Commissioner Deegan at that time suggested that the hours based up until notification to the Commission of a dispute be the hours that are used, because Mr Nott has suffered a little, not to a great extent, but we believe to a certain extent, after he notified the Commission of his intention to apply for a fulltime position.

PN46

THE COMMISSIONER: You say he has suffered, Mr Pinkas?

PN47

MR PINKAS: His hours have suffered a little bit. He has been knocked back for overtime occasionally, and we believe it indicates victimisation.

PN48

THE COMMISSIONER: When he was taken on as a casual, what was stated to him in regard to the hours that he would be likely to be working?

PN49

MR PINKAS: Mr Nott?

PN50

MR NOTT: It was just - just as a casual. There was no guarantee of any hours.

PN51

THE COMMISSIONER: No guarantee of any, and it just turned out the average was in the order of 40, or 43?

PN52

MR NOTT: Yes, that is correct. Yes.

PN53

THE COMMISSIONER: What do you say about Linfox's statement that the work is seasonal?

PN54

MR PINKAS: Well, Commissioner, it's based on - now it's 18 months just about and his average is still over 40 and is averaged throughout a season. Granted, there is more work during the winter. Based in Canberra, there's a run that goes up to the mountains, so that that is extra work then. However, even outside of those times, since the end of the ski season October, his hours have still been averaging around 40.

PN55

THE COMMISSIONER: What constitutes the seasonality of the work? Is the driving - I think it's an Armaguard driver, isn't it? Is it Armaguard?

PN56

MR PINKAS: That's right. That's correct, Commissioner.

PN57

THE COMMISSIONER: Yes. So it relates to the - - -

PN58

MR PINKAS: There's more work during winter, Commissioner, because of that extra run that is based out of Canberra, up to the mountains.

PN59

THE COMMISSIONER: Good. Thanks, Mr Pinkas. Perhaps I'll turn to the representative of the employer. Mr Watson, are you going to address these matters?

PN60

MR WATSON: Yes, I am, Mr Commissioner.

PN61

THE COMMISSIONER: I take it, Mr Watson, that the employer maintains the position that its obligation to Mr Nott is only to offer him a permanent part-time position?

PN62

MR WATSON: Well, it maintains its position, that it has discharged all of its obligations under the award.

PN63

THE COMMISSIONER: Yes.

PN64

MR WATSON: The company has a right under the award to refuse an election to convert, on reasonable grounds, and it has refused an election to convert to fulltime on grounds which it believes are reasonable.

PN65

THE COMMISSIONER: And that goes to the last paragraph of subclause (h), is it? 13.4.6(h)?

PN66

MR WATSON: Yes, it does, and it refers back to the right in sub-paragraph (e).

PN67

THE COMMISSIONER: Yes.

PN68

MR WATSON: So the company's position is that the employees' election is really in the nature of an application which the company should grant unless it has reasonable grounds for refusal, and there are operational reasons which mean that the company is not in a position to offer any further fulltime positions. Indeed, the workload overall of the employees has been reducing and there is a question mark as to the appropriate level of manning of fulltime and part-time employees in any event. So because of operational reasons, the company has refused the election of Mr Nott to convert to fulltime employment.

PN69

THE COMMISSIONER: Yes.

PN70

MR WATSON: As Mr Pinkas has indicated, this matter has been addressed through the disputes procedure. It has been the subject of a conference before Commissioner Deegan. The company has made an offer in an effort to settle it, which is in the nature of a compromise, and it appeared that, agreement not being reached in relation to that compromise, the union is then now seeking something in the nature of a determination from the Commission in relation to compliance with the award provision.

PN71

THE COMMISSIONER: Yes.

PN72

MR WATSON: Now, at that point, the company has indicated to the union and indicated to the Commission, and it appears that it might be the reason why the matter has been reallocated in the Commission, the company has indicated that it wishes to apply for the matter to be dismissed on the basis that there is no jurisdiction for the Commission to determine the matter and the Commission should not proceed further with any formal or informal determination of the question of award compliance.

PN73

THE COMMISSIONER: Yes. My understanding, Mr Watson, was that the company - that's why I am here; the company had, I think, raised objections to Commissioner Deegan continuing to deal with the matter. That was what I was informed about, but I'm just mentioning that. I'm not looking for a response.

PN74

MR WATSON: Yes.

PN75

THE COMMISSIONER: Today was essentially, on my part, an opportunity to try and bring myself to a position where I understood where the parties were coming from and what the issues were more clearly than I did from the file. I certainly hear your argument about the provisions of the conversion clause. It does talk about unreasonably - it should accept the request of the employee, but shall not unreasonably so refuse. The unreasonableness is the key. It has an opportunity to reject an application, but it should not do so unreasonably.

PN76

MR WATSON: That's correct, Mr Commissioner. That's as we understand the operation of the provisions.

PN77

THE COMMISSIONER: Yes. And I think it also says - I thought the clause also said that if there was a dispute about this, it should be dealt with under the disputes procedure; am I correct in that?

PN78

MR WATSON: It does indeed, and that's sub-paragraph (i):

PN79

Any dispute shall be dealt with as far as practicable, with expedition, through the disputes settlement procedure.

PN80

THE COMMISSIONER: Yes, and just looking at the disputes settlement procedure, it refers to:

PN81

If a matter cannot be resolved, it may be referred to the Australian Industrial Relations Commission.

PN82

Am I correct in that?

PN83

MR WATSON: That's correct, yes, Mr Commissioner.

PN84

THE COMMISSIONER: Yes, but doesn't go much further than that, does it? It doesn't say what the Commission might do with it once it's referred to the Commission?

PN85

MR WATSON: And we say obviously that it doesn't have words which empower the Commission to - - -

PN86

THE COMMISSIONER: To arbitrate.

PN87

MR WATSON: - - - determine the matter.

PN88

THE COMMISSIONER: Yes. Yes. Okay.

PN89

MR WATSON: There are authorities on this. Such a reference in a disputes settlement procedure of an agreement or an award would naturally be interpreted as providing jurisdiction for the Commission to conciliate, but in the absence of any power to arbitrate conferred by the parties or formally under the Act in the case of an award, then our argument is that no such power exists.

PN90

THE COMMISSIONER: Yes. Just as an observation at this stage, without necessarily accepting or rejecting Mr Watson's proposition, it does seem to have substance. The sub-paragraph 11.3 of the disputes procedure. It says, after referring to the earlier stages:

PN91

If the matter cannot be resolved, it may be referred to the Australian Industrial Relations Commission.

PN92

It does not in any way, shape or form confer on the Commission a power to arbitrate a matter and impose a resolution on the parties. Do either Ms Ryall or Mr Pinkas want to make an observation or a submission in regard to the extent of the power which is given to the Commission under 11.3 of the disputes procedure in the award?

PN93

MR PINKAS: Commissioner, clause 18(5) of the certified agreement, the Armaguard Road Crew Certified Agreement, clause 18, basically reads stage 5, after going through the other stages:

PN94

If the matter is still unresolved, it may be referred by either party to the AIRC. Both parties will agree to the AIRC decisions as final.

PN95

And then:

PN96

Subject to any appeal process which may be instituted by either party.

PN97

I'm just - - -

PN98

THE COMMISSIONER: Yes, that is a worthwhile point, Mr Pinkas. Perhaps Mr Watson would like to make some comment about the effect of the disputes procedure in the enterprise agreement?

PN99

MR WATSON: Mr Commissioner, we say that this is a matter arising in relation to the award - - -

PN100

THE COMMISSIONER: Out of the award.

PN101

MR WATSON: - - - and not the agreement. The disputes procedure in the agreement can only deal with disputes relating to the application of the agreement.

PN102

THE COMMISSIONER: Yes.

PN103

MR WATSON: The provisions of the Act only empower the parties to do so and that's what the parties have done in formulating the disputes procedure of the agreement and that disputes procedure relates to issues arising from the agreement. This is a matter that arises under the award and therefore the differently-worded disputes procedure of the award is the applicable provision.

PN104

THE COMMISSIONER: Good. Thank you, Mr Watson. Well, just by way of summary, my understanding is that Mr Nott wishes to be a permanent fulltime employee. I take it, Mr Nott, you haven't converted from your casual status as yet, or have you?

PN105

MR NOTT: No, I haven't converted.

PN106

THE COMMISSIONER: Okay. He's still a casual employee and at least to the point of the initial conference last year, he was working in the order of 40 to 42 hours per week on average. The employer, in considering his application, has not accepted the proposal to convert to fulltime and it alleges in its response, which is to offer a 32-hour week, is reasonable, and that its refusal to accept fulltime is done on reasonable grounds. The employee and the union are challenging the employer's response on this occasion and have brought it to the Commission on one previous occasion before Commissioner Deegan and it's now here again.

PN107

The suggestion has been that the matter could be dealt with by a decision of the Commission which is imposed on the parties. Now, I am assuming that the union is putting that proposition? I don't think it's been put expressly here today.

PN108

MR PINKAS: That would be our preference, Commissioner.

PN109

THE COMMISSIONER: Yes. That would only be open to us, on the face of things, if Mr Watson's submission is correct, and that is that the enterprise agreement disputes procedure only applies to disputes under the enterprise agreement and that the award disputes procedure applies to disputes under the award, which as I said before in regard to Mr Watson's original submission, I would suggest has some substance. That is, if you are wanting to have the Commission deal with a dispute under the award, the relevant clause that will define the power of the Commission is the disputes procedure under the award, not the disputes procedure under the enterprise agreement.

PN110

That's my inclination, without being definitive on that and saying it as a formal decision. Now therefore, if that was correct, the only basis for the Commission to hear argument on the merits of whether or not the company decision was reasonable when it said to Mr Nott, "We are prepared to offer you 32 hours, but not 38 hours as a permanent employee" would be if both parties were to agree. That's open to both parties to agree. But I haven't heard any submission from the company at this point that it's prepared to allow the Commission to consider the merits of its decision to refuse fulltime employment to Mr Nott and to make a decision which took account of the submissions of both the company and the union.

PN111

So that's where we are at this stage. Mr Watson, do you have any instructions on whether the company is prepared to allow the Commission to make a decision binding on the parties?

PN112

MR WATSON: The company does not agree to the Commission making a decision binding the parties.

PN113

THE COMMISSIONER: Yes, and it also argues, as you have done so already, that there is no jurisdiction in the Commission to require the company and the union to be bound by a decision.

PN114

MR WATSON: That's the position we have advanced, Mr Commissioner.

PN115

THE COMMISSIONER: Yes. Good. Well, what I am proposing to do at this point is to adjourn this hearing and I will give further consideration to Mr Watson's submission in regard to jurisdiction. I would be inclined to issue a decision on that. Is it sought by the parties that a decision be issued? Because if it is, I will of course give a formal decision on Mr Watson's submission, that there is no jurisdiction for a hearing which would lead to a binding decision in relation to this matter. Now, so I was proposing to adjourn, but also to go off the record and to see whether there's any basis of helping both the company and Mr Nott through this little problem.

PN116

I'm not suggesting there's much of an opportunity because I think this matter has been the subject of a fairly close consideration by Linfox already, but I would be proposing to give that just one more try. So does anyone want to say anything about what's been said to date before I adjourn?

PN117

MR WATSON: Mr Commissioner, we would say that in terms of the company's position on jurisdiction and the application we make that the matter be dismissed, we are in the Commission's hands as to how that matter should proceed and whether enough has been said by the parties in relation to that matter. For our part, we would be prepared, and we've only outlined the position very briefly today, and we would have no objection to filing an outline of a formal submission and allowing the union to do the same, having a further brief hearing if that was sought or deemed appropriate.

PN118

THE COMMISSIONER: In regard to which issue, Mr Watson?

PN119

MR WATSON: To the jurisdictional issue.

PN120

THE COMMISSIONER: To the jurisdictional issue? Okay, yes.

PN121

MR WATSON: Really, to the effect that there is no jurisdiction for the Commission to determine the matter. I think it is a short point and I think the points have been raised, but if it was considered appropriate to adopt a further procedure to allow the parties to press them fully, then - - -

PN122

THE COMMISSIONER: Well, I'll look to the union on that, Mr Watson, to see what their preference is.

PN123

MR WATSON: Yes.

PN124

THE COMMISSIONER: Perhaps I could ask the union; there's been a jurisdiction point raised, Mr Pinkas and Ms Ryall. The jurisdiction point is that the Commission has no power to arbitrate on the reasonableness of the company's decision to not convert Mr Nott to a fulltime employee. Now, Mr Pinkas has raised a point about the enterprise agreement and the disputes procedure there. Now, Mr Watson has offered, if the union so requests, that we could convene another hearing where Mr Watson would elaborate on his jurisdiction point and also provide a written submission on it, brief probably, and the union would be required also to do the same. Is that your preference at this stage?

PN125

MR PINKAS: Yes, it is, Commissioner.

PN126

THE COMMISSIONER: So we could have the jurisdiction argument fleshed out a bit more?

PN127

MR PINKAS: Yes, Commissioner.

PN128

THE COMMISSIONER: Okay. Good. Well, we'll organise a further brief hearing on the jurisdiction matter at a time probably in the next fortnight or so, if that would suit the parties? Good. Now, is there anything else that needs to be said at this point in regard to this matter before I adjourn and go into conference?

PN129

MR WATSON: Is it appropriate to make directions, Mr Commissioner, about filing material in advance of the hearing?

PN130

THE COMMISSIONER: Well, until I have my diary which is currently on its way back from Shepparton, Mr Watson, probably not. But I will issue a - well, rather than issuing some directions, I'll just indicate to the parties that I'd expect that the employer's outline of submissions be lodged in the order of eight working days prior to the hearing and the union's outline of submissions be lodged four days prior to the listed date. I would imagine that we're talking about a hearing which would go no longer than probably 90 minutes.

PN131

MR WATSON: Yes, Mr Commissioner.

PN132

THE COMMISSIONER: And quite possibly shorter. Good. That being the case, we will adjourn this proceeding and go off the record.

<NO FURTHER PROCEEDINGS RECORDED [2.28PM]