C2006/1766, Transcript of Proceedings [2006] AIRCTrans 259 (28 February 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14224-1

COMMISSIONER MANSFIELD

C2006/1766

METRO TASMANIA PTY LTD
AND
AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION
s.127(2) - Appln to stop or prevent industrial action
(C2006/1766)

HOBART

1.33PM, MONDAY, 13 FEBRUARY 2006

Continued from 1/2/2006

PN1

MR P MAZENGARB: I appear from Tasmanian Chamber of Commerce and Industry Ltd. With me I have MR T SIM, the chief executive officer of Metro Tasmania and I also have MS A BALL with me who is the human resource manager of Metro Tasmania.

PN2

MR S AMICOSANTE: I appear from the Rail Tram Industry Union and with me I’ve got MR J NICHOLS and MS S SIMONETIS.

PN3

THE COMMISSIONER: Thank you. This is an application lodged by Metro Tasmania to prevent or stop industrial action which is being proposed by the Rail Tram and Bus Union. As the parties are aware there has been extensive discussion and negotiation between them on a range of issues related to the enterprise bargaining agreement which is under negotiation. I made a recommendation to Metro Tasmania and the Rail Tram and Bus Union in relation to wages and conditions matters on Thursday of last week. I understand that was put to the membership of the RTBU in a secret ballot and the membership voted by a significant majority to reject the recommendation that was made.

PN4

I should on the record make one small correction to the documentation associated with that recommendation and that is just to make it clear that on page four of the recommendation there was a table which showed a translation of the existing salary rates to the new salary rates and the table should have shown that the salary rate of 626.55 translated to 675.20 and the salary rate of 627.65 translated to 680.50. It wasn’t shown that way on the original page four and I’m just making it clear to everybody as I did this morning privately, that that is a correction.

PN5

Now, the Workplace Relations Act does allow for applications to terminate bargaining periods under certain circumstances and that is the substance of the application that’s been made by Metro Tasmania in relation to the industrial action which I understand is proposed to commence tomorrow which would result in a stoppage of the public transport bus system throughout Tasmania for an initial three day period. So Mr Mazengarb, it is the application of Metro Tasmania that that industrial action should be prevented by an order from the Commission to terminate the bargaining period. I’m prepared to hear you at this stage.

PN6

MR MAZENGARB: Yes. Thank you, Commissioner. Once again as I did when I was before you standing at this very spot 12 days ago again on behalf of Metro, I appreciate your involvement in this matter and we thank the Commission for availing yourself today at very short notice to hear this matter.

PN7

THE COMMISSIONER: Mr Mazengarb, just let me make it clear that whilst I’m not pleased to be in this position right now it’s no difficulty for the Commission to respond in the way we have and I’m just hoping that this matter could have been resolved in a way that prevented the industrial action. At this stage your application is what is between the prevention of the industrial action and the strike going ahead tomorrow. So please go ahead.

PN8

MR MAZENGARB: Thank you, Commissioner. As indicated you’ve briefly outlined some of the history to this matter, but we lodged two applications before the Commission the week before last and there was a hearing before you on that Wednesday. Since then there’s been a series of, as you indicated, discussions and hearings before yourself with a view to attempting to resolve the impasse that’s currently before us. Those negotiations commenced on Friday 1 February. Subsequent to that - and I’ve lost count - I think there were about five days of proceedings before yourself where we were trying to conciliate the issue. You made recommendations and statement last Thursday 9 February.

PN9

As indicated that was not accepted by the RTBU but it was accepted by Metro. Whilst there was some issues in that recommendation that were a little bit unpalatable to Metro, they believed in the context of the issue in relation to the dispute that they were willing to accept your recommendations and implement the same. As a result of the rejection by the RTBU industrial action has been advised to us will commence tomorrow on a state wide basis and as I understand the issue it’s for three days, Tuesday, Wednesday and Thursday of this week. But the potential exists, as I understand, for that to be extended through to Friday, Monday and Tuesday of next week.

PN10

As a consequence of that there have been further applications lodged in the Australia Industrial Relations Commission and what we are seeking in today’s hearing is termination of the bargaining period and an order from yourself to stop that industrial action taking place with effect from tomorrow. Commissioner, our application is based on a number of grounds. Firstly in relation to section 170MW(2)(a) of the Workplace Relations Act and I'll read that. It says:

PN11

A circumstance for the purposes of subsection (1) is that a negotiating party that, before or during the bargaining period, has organised or taken, or is organising or taking, industrial action to support or advance claims in respect of the proposed agreement (a) did not genuinely try to reach an agreement with the other negotiating parties before organising or taking the industrial action.

PN12

I should go and say at this stage we’re not relying on (b) and (b) does state:

PN13

Is not genuinely trying to reach an agreement with the other negotiating parties.

PN14

We are of the view, and I’m quite happy on behalf of Metro to put on record, that we do believe that over the last week and a half the RTBU has generally tried to reach an agreement with regard to a new enterprise agreement and I think from our perspective Metro, I would submit with the utmost respect, has also tried to reach an agreement. But our concern relates to primarily MW(2)(a) in that we believe and we would submit that the RTBU was organising industrial action prior to the outcome of the negotiations and we believe that is contravening that 170MW(2)(a). More importantly, Commissioner, I must go and say that pursuant to 170MW(7)(c) of the Act, and that reads:

PN15

A circumstance for the purposes of subsection (1) is that:(c) there is no reasonable prospect of the negotiating parties reaching an agreement under Division 2 or 3 during the bargaining period.

PN16

Commissioner, as you well know - and I’m not going to insult your intelligence by going through all the matters, but there have been proposals put on the table by both parties, there have been changes to those proposals, there have been tweaking of those proposals, there have been new proposals put on, taken off even as late as today. We are of the view that there is no possible chance with all good intentions of both parties by reaching agreement with further negotiations. My hair has certainly gotten a lot greyer over the last few days, that’s not a real worry.

PN17

THE COMMISSIONER: At least you’ve got some hair to become grey,
Mr Mazengarb.

PN18

MR MAZENGARB: I realised when I said that I could be in trouble. But certainly, you know, we have tried very hard and I'll give credit to the RTBU. They have certainly changed their position. They have not been inflexible, but unfortunately for all good intentions from both sides we’ve not reached agreement. And as I said, and I repeat, we used yourself this morning again, Commissioner - and we appreciate that - with a view to attempting to reaching agreement at the eleventh and a half hour, but unfortunately that’s not been achievable.

PN19

THE COMMISSIONER: Now, Mr Mazengarb, in relation to 170MW(7)(c) it’s the position of the employer I take it that immediately before the commencement of the section the wages and conditions of the employees were subject to a paid rates award. Is that the position of the employer?

PN20

MR MAZENGARB: Yes. As I understand they are subject to what’s called the Metro Tasmanian 2002 Award which is an award with this Commission and also an EBA which was registered by the Deputy President of this Commission, Pat Leary, back in 2004 and I understand that agreement nominally expired in January this year. I’m not going to go to that particular part of the Act, Commissioner.

PN21

THE COMMISSIONER: Yes, but prior to the commencement of enterprise bargaining it’s the position of the employer that the conditions of the operators were determined by a paid rates award?

PN22

MR MAZENGARB: Paid rates award, that’s absolutely correct. That’s our position, yes.

PN23

THE COMMISSIONER: Okay, good. Thank you.

PN24

MR MAZENGARB: Further, Commissioner, we’re of the view that pursuant to 170MW(3)(a) that this threatened industrial action will have an effect on the welfare of the bus commuters in Tasmania. Again for the record 170MW reads:

PN25

(3) A circumstance for the purposes of subsection (1) is that industrial action that is being taken to support or advance claims in respect of the proposed agreement is threatening (a) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it.

PN26

We say that the intended action that’s going to be taken by the RTBU as notified will certainly have an impact upon the welfare of bus commuters in Tasmanian public generally. You should be aware, Commissioner, that Metro Tasmania virtually operates the monopoly with regards to services within Tasmanian bus area with regard to the provision of services and there have been a number of organisations of their own volition that have come out and expressed extreme concern with regard to the proposed action of the union. For instance, if I can quote from yesterday’s Sunday Tasmania.

PN27

I’m sorry, I don’t have a copy of this, I haven’t been in my office this morning. But if I can quote from yesterday’s Sunday Tasmania in relation to an article by Charles Waterhouse under the heading of Strike Blow- - -

PN28

THE COMMISSIONER: Is he a journalist we should trust, Mr Mazengarb?

PN29

MR MAZENGARB: I’ve got to be very careful here. My daughter is a journalist, so I’ve got to make sure I don’t say anything that she’s going to have a go at me about. But what I wish to do is on the assumption that quotes that have been made here by Mr Waterhouse from Jennifer Branch who is the president of the Tasmanian Council of State Schools Parents and Friends Association, in actual fact, they are direct quotes and are accurate.

PN30

THE COMMISSIONER: Yes.

PN31

MR MAZENGARB: Under the heading of Bus Chaos, as I said, Jennifer Branch who is the president of the Tasmanian Council of State Schools Parents and Friends Association, and I quote, said:

PN32

It was disappointing drivers were taking action this week.

PN33

And she’s quoted for saying:

PN34

I would prefer if it was not on a first day that schools go back.

PN35

And I should indicate that most public schools return tomorrow, Commissioner.

PN36

THE COMMISSIONER: Meaning state schools, Mr Mazengarb?

PN37

MR MAZENGARB: State schools. A lot of public schools went back last week and as I understand some other public schools may also go back on Thursday, but certainly the bulk of public schools will return- - -

PN38

THE COMMISSIONER: So this week they will be affected?

PN39

MR MAZENGARB: This will be crucial.

PN40

THE COMMISSIONER: Yes.

PN41

MR MAZENGARB: She goes on to say:

PN42

It’s a bit of a shame they’ve chosen to strike at that time.

PN43

That is the end of the quote. She said:

PN44

It was important children start off on the right foot for their first day for school year.

PN45

She goes on to say - sorry, this is the article:

PN46

Mrs Branch said strikes will cause problems for an increasing number of parents who are unhappy about their children walking to school. She said parents who did not drive or did not have a second car would also be affected. ‘I assume everybody has a drivers licence, but it’s not always the case’ she said. Mrs Branch said she’d expect some parents would be looking at alternative arrangements and where these could not be made children would have to stay at home.

PN47

Also, Commissioner, whilst I haven’t got copies of the transcript with us, again because of the public holiday here today, I can recall the president or the secretary of the Pensioners Union being on the ABC News yesterday morning indicating her grave concerns from her organisation’s perspective about the impact this would have on her members of pensioners with regard to their ability or inability to be able to use the public transport system for doing the things they’d need to do. So those two bodies alone have been a lot of indications given that they are extremely concerned. Generally we would go and say that this is going to have a detrimental effect, certainly on the welfare of the travelling public.

PN48

With regard to that, Commissioner, I'll just quote some statistics which may assist you in relation to considering this matter and what I have is some documentation that’s been provided by Metro Tasmania which is statistic analysis that they keep for year to year and I must go and say that this period of time last year, this is a peak period. For instance sake, in Hobart there was something like 32 or 33 thousand uses of the buses during this week. Those uses are per day and certainly it possibly would mean that they would be reflective of one person getting on in the morning and using the bus and then using the bus of an evening. But certainly they are total trips for that period of time per day. As I said they’re around 32 and a half thousand in Hobart alone.

PN49

THE COMMISSIONER: Do many employees use the bus service to come to work, Mr Mazengarb?

PN50

MR MAZENGARB: Yes, they do. I will lead to that now. Whilst I haven’t got the statistical information, as I understand, there’s certainly a lot of employees who utilise the public transport system for the purpose of getting to and from work. Again I have no statistical information with regard to what impact that will have directly or indirectly on those people, but certainly we would submit that it’s going to have a detrimental effect on their ability to get to and from work. Whether or not they can find alternative processes or means of getting to work is unknown to us, but certainly with regard to the use of the services from tomorrow it’s going to have a very bad effect on those employees.

PN51

THE COMMISSIONER: What’s the population of Hobart, Mr Mazengarb?

PN52

MR MAZENGARB: That is a very good question, Commissioner.

PN53

THE COMMISSIONER: Approximately?

PN54

MR MAZENGARB: I’ve been advised it’s appropriate 190 odd thousand.

PN55

THE COMMISSIONER: 190,000?

PN56

MR MAZENGARB: Yes.

PN57

THE COMMISSIONER: So approximately 15 - the 33,000 you quote is a journey to and a journey back I expect?

PN58

MR MAZENGARB: Yes. Total trips.

PN59

THE COMMISSIONER: So we could say 17,000 journeys in one direction. So it’s 10 per cent of the population roughly is using the bus service on a daily basis.

PN60

MR MAZENGARB: At this peak period of time.

PN61

THE COMMISSIONER: Yes, at this period.

PN62

MR MAZENGARB: It does vary, certainly we can say that certainly when all is fine, but this week is an extremely busy week with children going to school and that sort of thing. Just on those figures with regard to Launceston it’s in excess of 8000 trips per day and from Burnie, it’s around about 2500 trips per day at this period of time. So you can see from that, Commissioner, and from the comments of the Parents and Friends and the Pensioners Union and the usage of the bus service it is going to have an impact on the travelling public. We therefore say that 170MW(3)(a) in relation to the welfare of the Tasmanian people must be taken into consideration in relation to your consideration of our application.

PN63

Commissioner, I have taken the liberty of drawing up an interim order which I am unsure if it’s been delivered to you yet?

PN64

THE COMMISSIONER: I’m not familiar with it, Mr Mazengarb, so perhaps you could hand it up if you wouldn’t mind. Those statistics, Mr Mazengarb, are they available to be handed up?

PN65

MR MAZENGARB: Yes. Look, I have just drawn on a couple of things, but I’m happy to give them to you. I haven’t got spare copies for the other party and I sincerely apologise for that.

PN66

THE COMMISSIONER: We can get copies made.

PN67

MR MAZENGARB: Yes. It might be appropriate if we also get copies of that interim order.

PN68

THE COMMISSIONER: Yes.

PN69

MR MAZENGARB: Thank you. What I’ve done, Commissioner, as I said is drawn up an interim order which we would ask you to consider and once that interim order - well, I can go through it now. I apologise to the other party for not having this in front of them, but it will be available shortly. Again I’ve taken the liberty of referring to the order as the Metro Tasmania Pty Ltd Interim Industrial Action Order February 2006. We say that the order should be binding upon Metro Tasmania and the RTBU. What we are seeking from the Commission is a direction that all industrial action be ceased or stopped and certainly not occur.

PN70

It is explicit in its request or direction from you if you accept this interim order that all industrial action stop, not commence, not engage in or threaten to engage in any industrial action to which the order applies and that would be binding on Metro Tasmania and the RTBU. We request the RTBU prepare a written notice signed by an authorised officer indicating that you have issued a section 127 order to stop or prevent industrial action, that the RTBU advise its members that there is to be no industrial action and who it applies to. It also gives the opportunity for Metro Tasmania to go out and take all reasonable steps to ensure that the employees of Metro Tasmania who will be affected by the proposed industrial action cease to take that action and report to work at that normal time tomorrow morning.

PN71

In relation to the interim order or the draft order that I’m having copied now, I’ve left a blank with regard to when we seek this order take effect. I’ve just put in there February 2006. We weren’t quite sure when the hearing would be on, but certainly from our perspective we would request that that interim order take effect from today’s date with a view to the proposed action not taking place from tomorrow and we’ve tentatively indicated we believe it should remain in place until midnight on 1 March 2006 or until there’s a further order of the Commission.

PN72

So Commissioner, I think that concludes my submissions with regard to the application to suspend or terminate the bargaining period and to prevent the industrial action. But certainly, Commissioner, if there’s any other issues that you need me to address I’m certainly happy to do that, but I think I'll leave it at that point or leave it there at this point in time.

PN73

THE COMMISSIONER: No, that’s satisfactory. Thank you, Mr Mazengarb.

PN74

MR MAZENGARB: If the Commission pleases, thank you.

PN75

THE COMMISSIONER: Mr Amicosante.

PN76

MR AMICOSANTE: Mr Commissioner.

PN77

THE COMMISSIONER: Thank you.

PN78

MR AMICOSANTE: Good afternoon, Commissioner. I’d just like to put a few points across from how the RTBU stands. We went into these negotiations early. We thought that we could tidy them up early without any trouble.

PN79

THE COMMISSIONER: When did they actually start please?

PN80

MR AMICOSANTE: September.

PN81

THE COMMISSIONER: September 2005 obviously?

PN82

MR AMICOSANTE: 2005, yes.

PN83

THE COMMISSIONER: So you’ve been negotiating already a very long time?

PN84

MR AMICOSANTE: We have, Mr Commissioner. When we went into the start of these early negotiations we found that Metro was unreasonable, they kept jumping from clause to clause, page to page and nobody knew where they was. It’s not the union’s fault that we couldn’t reach any amicable result. Even in doing so we still continued to try to negotiate. So we say that the union has done everything possible without organising any industrial action in that time. We had no plans for industrial action until things got a lot worse. We asked the company to negotiate fairly, which it didn’t, and we felt that we were backed into a corner and had no other option.

PN85

THE COMMISSIONER: When you say the company didn’t negotiate fairly,
Mr Amicosante, what do you mean?

PN86

MR AMICOSANTE: Well, we put certain - we were truthful right from the outset that what our position was with our hourly rate was extremely low, that over the years that this hourly rate was eroded for a lot of conditions. We put forward the argument that we could not come up with enough efficiencies to justify any pay rate because of our situation and we put forward the argument that mainland operators were heavily paid. But we didn’t want their top rate, all we wanted was their lowest rate. We put forward the argument of state movement in the public sector and that also wasn’t considered.

PN87

THE COMMISSIONER: There was an offer of four plus four plus four at one point, wasn’t there?

PN88

MR AMICOSANTE: There was, Mr Commissioner, but if you can understand on $16 an hour or roughly $16 an hour an offer of four plus four plus four would not do anything. It’s equivalent to about $5 a day or $20 a week which any increase in petrol would erode that condition away immediately.

PN89

THE COMMISSIONER: Yes.

PN90

MR AMICOSANTE: It’s also a known factor that there is movement on our roster which lowers the rate of drivers and that movement in the roster would eliminate any percentage rate that we gained immediately.

PN91

THE COMMISSIONER: So you think there could have been give with the one hand and take back on the other?

PN92

MR AMICOSANTE: Past history suggests that that would be the case,
Mr Commissioner.

PN93

THE COMMISSIONER: Yes. Just your point, Mr Amicosante, about the mainland and the lowest rate. My understanding of mainland rates is that they do not have to take anything like 40 years that has to be experienced here in Tasmania to get to the maximum. So there is a bit of a difference between the salary structures for other bus operators, as I understand it, and Metro Tasmania. I just make that observation. When you talk about the lowest rate, as I understand many of the operators on the mainland, they basically only have about one rate for the key bus driver, experienced bus driver rate. But I just note that.

PN94

MR AMICOSANTE: That’s true.

PN95

THE COMMISSIONER: So there isn’t a lowest and a highest, there is only one figure.

PN96

MR AMICOSANTE: Yes.

PN97

THE COMMISSIONER: Yes.

PN98

MR AMICOSANTE: We are operating under an inadequate pay system or pay scale which we’ve tried to get modified in these negotiations. We generally feel that they should not be part of the EBA, that they are outside of it, but we would concede that in the interest of both parties that we would incorporate it into the EBA.

PN99

THE COMMISSIONER: In my judgement, Mr Amicosante, is that it is in everybody’s advantage to develop at least the start of a new salary structure with the outcome of this EBA and we all know that and I think people on both sides, certainly management, are of the view that there does need to be a re-structure of the salary table as is the union. Now, I just make the point that the restructure that’s been on the table so far which is part of my recommendation should not be seen as the finish of a restructure, but rather the start. And it’s gone a long way towards something which is an improvement, but it isn’t necessarily perfection.

PN100

MR AMICOSANTE: Thank you, Mr Commissioner.

PN101

THE COMMISSIONER: So there’s still room for the union and the management to sit down and talk about further improvements in the structure.

PN102

MR AMICOSANTE: Thank you, Mr Commissioner. I think I’ve got my point across that the union has done everything possible to negotiate a fair and reasonable outcome. It’s only forced into strike action because of these negotiations not reaching an outcome. I must admit in later hours we did get within two per cent of each other, but management still disagrees on that as well.

PN103

THE COMMISSIONER: So what are you saying there, Mr Amicosante? Are you saying that the offer that’s on the table right now is within a small margin of what you think is acceptable?

PN104

MR AMICOSANTE: I’m saying that, plus I’m also saying that the union has come down in its claims since our original claim of 11 per cent per year. We’ve backed down and backed down until we’ve come to this plateau and on this plateau we’ve got a two per cent difference that Metro won’t come to.

PN105

THE COMMISSIONER: Won’t concede?

PN106

MR AMICOSANTE: Won’t concede and that outcome is nowhere near what mainland operators are getting at the moment, nor does it reflect the movement of public sector unions within the state. So I think I proven that we’ve tried to negotiate fairly, we’ve not gone overboard in asking for large demands and the demands that we have made we were perfectly welcomed to negotiate on. My second point is safety issues of drivers. We feel that Metro has totally ignored all safety issues of drivers.

PN107

THE COMMISSIONER: Now, Mr Amicosante, I hear what you say about safety. This hearing this afternoon is on the issue of whether or not the bargaining period ought to be terminated and Mr Mazengarb for the company has said it should be terminated on two grounds. One being the effect on the welfare of the Tasmanian public, and he quote for example the person from the Parents and Friends who is concerned about school children and also the representative of the Pensioners Association saying that this will impact on their well being and their ability to travel and so forth. So the first argument he has is in regard to the effect on the Tasmanian community.

PN108

The second argument it is around the issue of is there a reasonable prospect of reaching agreement. Now, the observation you’ve made on the record is the parties are not all that far apart in your view, but you’ve also said you’ve been negotiating since September last year which there is a point at which negotiations are exhausted where both sides have made a number of concessions and you’ve made the point that the union has already made a number of concessions and there’s little or no ability to make any more. But the two arguments are effect on the Tasmanian community and is there a reasonable prospect of agreement.

PN109

Neither of those goes to issue of safety and Mr Mazengarb hasn’t even mentioned safety issues. Now, if you want to say something about safety by all means put it on the record, but I’m just saying to you it’s not very relevant to the argument you’ve got to put this afternoon about whether or not the bargaining period ought to be terminated.

PN110

MR AMICOSANTE: Thank you, Commissioner. I was only going to touch on safety as a leader to how Metro feels about the general public.

PN111

THE COMMISSIONER: Yes.

PN112

MR AMICOSANTE: I wish to repeat safety issues such as not enough driving time, drivers urinating behind shelters because of inadequate toilet facilities. All these were brought forward and Metro was forced into fixing these problems through the workplace safety department. I mention safety because Metro shows very little consideration towards its drivers. So I can’t see how Metro can now stand up and say that it cares about the general public when it shows very little consideration for its own drivers or own employees. On the other hand, granted. Although we didn’t plan for industrial action in the earlier negotiations period, we did anticipate that if negotiations did break down that some sort of industrial action would have to happen.

PN113

And we all agreed that if this was the scenario to happen that it would happen in the school holidays and not in school terms and I did bring that forward to the Commissioner’s attention earlier on.

PN114

THE COMMISSIONER: Yes and I think it should be understood by everybody in the room that the union had intended actually to commence its industrial action last week rather than this week which would have been out of school term period, for most of the schools at least, and it only has happened that it’s now been pushed into - in fact it was the week before last, I think, you were going to commence your action and it was only because we had another effort at reaching an agreement through conciliation involving the Commission that it was pushed out to this week. So it’s conceded, but at the end of the day the fact remains that any industrial action this week will impact on school children going back to school.

PN115

MR AMICOSANTE: I want it on the record that the RTBU doesn’t plan to hurt any school children or minimise any industrial action it can. We also, Commissioner, are parents and also have got school children and we have to get to work as well. So it’s affecting us just as much as anybody else. We’re only at this stage because of the unreasonable offers that Metro, or we consider Metro have put forward. The comparison between us and the mainland, they do eight hours of driving no matter what those driving conditions are, we do eight hours of driving. These were not considerations that were taken into value. If so I can put a statement of value of work between us and the mainland if the Commission desires.

PN116

THE COMMISSIONER: Well, we know, Mr Amicosante, that if this matter isn’t settled by agreement either in any proceedings that happen beyond this date, there will be what is called a section 170MX arbitration where a full bench of the Commission will hear argument from both sides as to what the wage levels ought to be and that will go to issues of changes in working conditions of the drivers, changes in issues such as road congestion, changes in timetables which could lead the Commission to make a judgement that there is a case for higher increases than might otherwise be the case.

PN117

The issue of comparisons between one state and the other is always a difficulty and I think it’s conceded by everybody that the wage rates in Tasmania differ from other states and by and large are not as high as other states for some historic reasons and arguments about increases in Tasmanian wage rates by reference to the level of wage rates in states like Victoria, Western Australia and New South Wales are not compelling in arbitration proceedings. They’ll be taken note of, but they’re not going to - no one has to my knowledge in the past has ever set a fixed relationship between the wage rates of metro Tasmanian operators and the wage rates in any other state to my knowledge and that hasn’t been mentioned to me in the discussions to date.

PN118

So the relevance will be more within the state of Tasmania with people doing similar work than other comparisons. I just make that as a - it’s a point we’ve spoken about over the last week or so.

PN119

MR AMICOSANTE: It’s hard to compare metro Tasmania with any other company in Tasmania simply for the fact that all of us do different types of bus driving. The passengers that we carry are different. 80 per cent of our patronage is school children and concession holders. So to make a comparison with any other company in Tasmania would be extremely difficult. So what we can go on is the cost of living which use to be an argument past where the cost of living in Tasmania was lower, but in recent times the cost of housing and everything else associated with it has gone up and that argument doesn’t hold as much water as it use to. So I think we’ve proved that the union has tried to everything as much as possible.

PN120

THE COMMISSIONER: Mr Amicosante, let me say to you I have no question in my mind that the union genuinely tried to reach agreement with the management. I don’t doubt that. So there won’t be much reliance on any proposition, and I don’t think Mr Mazengarb put it as a very significant part of his submissions, that the union was not genuine in its efforts to reach agreement. I have no doubt having sat through discussions with the union and management over the last week or so that you were as anxious as anybody to reach agreement, but there were different expectations on both sides.

PN121

MR AMICOSANTE: Thank you, Commissioner. Commissioner, I also want to add that the bulk of children go back on Thursday to my knowledge. There is some schools back, but the bulk go back on Thursday. We’ve done everything humanly possible, we’ve stayed within the Australian Industrial Relationship Act

PN122

THE COMMISSIONER: Australian Workplace Relations Act, yes.

PN123

MR AMICOSANTE: Thank you, Commissioner. We’ve stayed within the law. I think if the Commissioner was to see that fit to stop our industrial action it would be going against the rights of people of withdrawing their labour.

PN124

THE COMMISSIONER: I can understand what you say there, Mr Amicosante, but the Act expressly provides a provision that where a negotiating party has no reasonable prospect of reaching agreement with the other negotiating party and industrial action commences in a period of protected action, there is a discretion in the Commission to terminate the bargaining period. And the question here is - and you’ve said basically that there’s been an offer put on the table - now, as I understand it the offer is inadequate in wage terms, but it also has some problems in other respects in terms of some of the other parts of it and you would want both of those matters addressed in order to have a reasonable chance in your mind of going back to your membership and having the proposal accepted.

PN125

MR AMICOSANTE: Yes, Commissioner. As I said before we’ve negotiated to a point where we’re in two percentage points of each other. We’ve tried the best we can. We’ve stayed within the law and we’ve tried not to affect the general public of Tasmania. There is no way other than industrial action at this time because we’ve been forced into a corner. Thank you.

PN126

THE COMMISSIONER: Thank you, Mr Amicosante. Let me just say before I go any further, Mr Mazengarb has put forward two matters. A graph showing the usage of Metro Tasmania and I'll mark that MT1 and he’s also put forward an interim order which could apply if his submissions were accepted by the Commission and I'll mark that MT2.

EXHIBIT #MT1 GRAPH SHOWING USAGE OF METRO TASMANIA
EXHIBIT #MT2 DRAFT PROPOSED INTERIM ORDER

PN127

THE COMMISSIONER: Mr Mazengarb, do you have any reply submissions to Mr Amicosante’s submissions?

PN128

MR MAZENGARB: Very, very briefly, Commissioner. Firstly with regard to the occupational health and safety issues that were raised by the RTBU. I’m not quite sure this is a court of competent jurisdiction to actually hear those matters.

PN129

THE COMMISSIONER: Well, it isn’t, Mr Mazengarb and I made that clear to the RTBU.

PN130

MR MAZENGARB: As it’s on the record I must go and say that we reject the observation made by the RTBU that Metro has little consideration for its drivers from the occupational health and safety perspective. Certainly my observations are that Metro Tasmania take very seriously occupational health and safety issues, be they are affecting their drivers, other employees or the public. So I further understand there was a review conducted by what they call Workplace Standards Tasmania which is a Tasmanian government arm of, I think, the Department of Industrial Relations and there was a report that was produced in October 2005 which I understand is being actively pursued by Metro Tasmania to employees, but I just want to put that on the record.

PN131

Secondly, Commissioner, with regard to our arguments that there doesn’t appear to be any relative to a new EBA. I take on board your comments, but I think that’s been reinforced today by the very comments of the RTBU that we did and we have commenced negotiations as far back as September 2005. We don’t need to be Einstein to realise that four and a half months has elapsed since those negotiations commenced and unfortunately we’re here today in the circumstance we are where we haven’t been able to reach agreement.

PN132

And thirdly and lastly I must go and say, Commissioner, that with the utmost respect to the RTBU I would say that our principal submissions have not been rejected by the union, they’ve not been refuted. It’s been accepted that there has been extensive negotiations for four and a half months without a resolution and I think it’s been indicated by the union themselves that the industrial action is going to happen. I think the comment was made well, we’ve got to get our children to school. I think it was actually get to work. We’ve got to get our children to school also.

PN133

So I think there’s acknowledgement and acceptance that it is going to have an impact, that it is going to have certainly a detriment affect in relation to the welfare of Tasmania, not just in Hobart, but state wide and therefore we say that our principal and primary arguments have not been refuted by the union. So again we request that you seriously look at the order in the draft order that I’ve presented and has been marked as MT2. Commissioner, I don’t know if there’s any need for me to go through that document.

PN134

THE COMMISSIONER: It would be useful for you to do so, I think,
Mr Mazengarb.

PN135

MR MAZENGARB: All right. As I indicated before it’s in relation to the claim of the parties to try to reach a certified agreement. I’ve given it that name, Metro Tasmania Pty Ltd Interim Industrial Action Order February 2006 be binding upon the RTBU and obviously employees of Metro Tasmania. In relation to the RTBU and employees of Metro Tasmania, under 3.1 we would be requesting that they be directed to stop, not commence, not engage in or threaten to engage in any industrial action to which this order applies including particular strikes, unauthorised stoppages, any other ban or limitation on the performance of work by employees of Metro Tasmania to whom the order applies.

PN136

There’s 3.2, the RTBU including any officers or officials of the RTBU must stop or not commence or re-commence, I should say, any ban on employees attending or performing work on the sites operated by Metro Tasmania and must stop and not further direct, procure, advise or authorise the employees to stop performing work.

PN137

THE COMMISSIONER: So the purpose of the direction is to the RTBU shall effectively tell its members to perform work in the normal manner?

PN138

MR MAZENGARB: Yes and I think that’s reflected through the order, 3.3 and as the order goes on. It refers to our section 127 under 3.3 on page two. The name of the order, there be no industrial action by persons employed by Metro Tasmania at any of the sites, who the interim order applies to. It also indicates that at 3.4 the notice referred to in clause 3.3 shall be forwarded to Mr Tony Sim, chief executive officer of Metro Tasmania. 3.5, fairly importantly the employees must attend work and perform work as normal without any restrictions, limitations or delays and then the service order refers and states without limitation as to other means of service it shall be sufficient service of this order if service of this order is affected by any one of the following means on the RTBU.

PN139

By a fax going to their national office, on all persons by (1) reading the order in the presence of an RTBU officer, delegate, employee or agent, or (2) leaving a copy of the notice for that each Metro Tasmania Pty Ltd site. 4.2 gives the ability to Metro Tasmania to take reasonable steps to conduct, to contact all employees bound by the order by telephone and other advice advising of the order and obviously provide a copy of this order to its employees. 4.3 addresses the issue that I think you were raising, Commissioner, that the RTB shall immediately notify each of the employees who are their members to attend work and perform work in accordance with this order and that there’s the ability through 4.4 for Metro Tasmania to advertise in the radio or any other press the existence of this order.

PN140

As I said before, Commissioner, at 8.5 under the heading Term and Date of Effect we would request, whilst I’ve left it blank, we would request that this order come into effect immediately, that is 13 February, and remain in force until at least 1 March 2006 or until further order of this Commission.

PN141

THE COMMISSIONER: Thanks, Mr Mazengarb.

PN142

MR MAZENGARB: I don’t think in relation to exhibit MT1 there’s any need to go through that. I think that’s fairly self explanatory, Commissioner.

PN143

THE COMMISSIONER: And I take it that the bars present what, a monthly or two monthly period, do they Mr Mazengarb?

PN144

MR MAZENGARB: The columns going up there? They are daily.

PN145

THE COMMISSIONER: They’re daily are they?

PN146

MR MAZENGARB: Excluding two weeks. So on the front page the range goes from 9 January 2005 and the week also goes to the 16th. So it’s for every single day.

PN147

THE COMMISSIONER: Very simple.

PN148

MR MAZENGARB: You will notice there’s some, where there’s infrequent use, that is Saturday and Sunday usage.

PN149

THE COMMISSIONER: Yes, good.

PN150

MR MAZENGARB: If the Commission pleases.

PN151

THE COMMISSIONER: Thanks, Mr Mazengarb. Do you have anything to say about the proposed order, Mr Amicosante?

PN152

MR AMICOSANTE: Yes, your Honour. We’ve stuck within the laws as far as we can see. We have given all notices to the public. They have been given ample opportunity to take alternative routes or any other thing that they see appropriate to get themselves or their children to school. If this injunction was to take, interim order was to take effect it would seriously curtail our ability to negotiate.

PN153

THE COMMISSIONER: Well, the first step following any order,
Mr Amicosante, is that further conciliation would be arranged between the parties. Now, the conciliation is in a different environment, there’s no doubt about that because effectively it’s in an environment where if the conciliation fails the next step is an arbitration case. And what everyone needs to understand is any arbitration would take place probably in another, it would be at least four weeks and maybe twice that length, before you have an arbitration before a full bench of the Industrial Relations Commission organised down here in Tasmania. And when you present the case, which would take probably in the order of at least two days I would suggest between the union and the management, it would be another period of at least another four weeks before any decision was handed down.

PN154

Now that’s the normal. I’m not saying that is going to be the exact timetable on this occasion, but that’s the norm.

PN155

MR AMICOSANTE: I’m saying in a sense that we, by operating within the law, even though it may sound silly, that we are not disadvantaging the community because we’ve given out appropriate notices to undertake a different action to get to work.

PN156

THE COMMISSIONER: Yes.

PN157

MR AMICOSANTE: And we would also be in favour if that we can contact Metro ourselves and resume negotiations ourselves.

PN158

THE COMMISSIONER: Mr Amicosante, any time that the union and the company wish to negotiate they are free to do so. When you walk out this door today if you wish to say to management let’s sit down and have another discussion you are free to do so. Tomorrow, the next day, any time. It doesn’t have to be under any involvement of the Commission. There’s no obligation to that. We’re happy to try and assist and of course that’s our responsibility, to try and assist, but we don’t have to be involved.

PN159

MR AMICOSANTE: And the other thing that I’d like to bring to the Commission’s notice is that the RTBU would be prepared to call off the strike if some outcome was achieved.

PN160

THE COMMISSIONER: Some outcome along the lines that you’ve put on the table this afternoon?

PN161

MR AMICOSANTE: Yes, Mr Commissioner.

PN162

THE COMMISSIONER: Yes, thank you.

PN163

MR AMICOSANTE: Thank you.

PN164

THE COMMISSIONER: Good.

PN165

MR MAZENGARB: Commissioner, just in relation to that last comment made by the RTBU, can I go and say on behalf of Metro they’re more than happy to have negotiations. It doesn’t necessarily have to be under the chair of the AIRC. They’re certainly happy to have those negotiations continuing and as you and I both know, Commissioner, you can literally work out a problem walking up the front steps in this particular instance of the court house on the day of the hearing and you can have it resolved 30 seconds before the hearing. The fact that we’re here today does not mean that that’s the end of any negotiations.

PN166

Certainly the door is open from Metro’s perspective if the RTBU wishes to have further negotiations. We certainly haven’t shut that door as a result of these applications before you today.

PN167

THE COMMISSIONER: Yes. But on the face of it what it really means is, as I understand it, if one side wants to resume negotiations they have to be prepared to move a little away from where they are at the moment. Now, that probably goes for both sides for that matter because while people are talking there is always an opportunity for some lateral thinking and another solution and we’ve done a little bit of that over the last week or so. But just confirming what everybody has just said. The door should be always open from both sides for further discussions. While you’re talking there is an opportunity for reaching agreement.

PN168

Okay, all right. If that’s the case, I’m going to adjourn this matter. Now, before I walk out that door I’d like to have a private discussion with the union and management. Can the media please leave? We’re off the record.

<SHORT ADJOURNMENT [2.26PM]
<RESUMED [4.43PM]

PN169

THE COMMISSIONER: All right. This is the formal statement about the outcome of the negotiations held today between Metro Tasmania and the Rail Tram and Bus Union representing operators. Arising from lengthily discussions in the Industrial Relations Commission today a proposal to resolve the Metro Tasmania RTBU Operators Enterprise Bargaining Agreement will be put to meetings of operators tomorrow. Metro Tasmania Bus Services will commence running as normal. Depot meetings will be held in Hobart, Launceston and Burnie at 11 am. If RTBU members endorse the proposals outlined below services will resume from around 1.30 pm. Should the proposals be rejected stoppage action will commence.

PN170

The revised package is as follows. The wage increases will be as follows. Six per cent plus restructure from first pay period after 3/1/06. Four per cent from first pay period after 3/1/07. Four per cent from first pay period after 3/7/07. In effect the second four per cent is brought forward from January 2008 to July 2007. The agreement will be for two and a half years, not three, thus allowing earlier negotiations for a new EBA. Three issues have been identified as causing significant problems for operators. These are satellite yards item 17, meal breaks in other depots item 18, part time work item 3. These issues will be removed from the proposed EBA.

PN171

That removal will not inhibit Metro Tasmania from having further discussions with the union, but they will not be in the EBA as proposed agreed items at this stage. Should this revised proposal which has been initiated by Metro Management and the RTBU not be acceptable a decision on the application to suspend or terminate the bargaining period will be issued later this week. And that’s from the Commission, the statement that’s been made. We’ll now go off the record.

OFF THE RECORD

PN172

THE COMMISSIONER: I issued three years. Metro Tasmania will agree to not introduce AWAs for operators during the lifetime of the agreement and it’s understood between the parties that if that is achievable within an EBA it will be incorporated in the EBA, otherwise it will be a written undertaking from Metro to the Union. Now, I'll stay on the record just to say that if this is endorsed by the meetings of members tomorrow there will be work undertaken between management, the union and the Commission to incorporate the changes to the existing EBA. The existing EBA will be extended by those items which have been agreed.

PN173

A new draft will be prepared. That will then be put formally to meetings of members, probably during next week. I’m sorry, no. It will be advised to members during next week and they will commence to get their 14 days notice of the proposed EBA and then there’ll be the subject of formal meetings of members at the earliest appropriate time to have them consider it and virtually and certainly endorse it if they pick up the deal tomorrow and then the new agreement will be put to the Commission for certification.

PN174

MR SIM: Can I make two points if I can, Mr Commissioner? I think that the EBA, the last EBA ended on 5 January. I’m just wondering if it’s a technical point that you’re actually starting this from the first so we don’t have a hiccup down the track? I mean, in terms of the pay period cycle.

PN175

MR MAZENGARB: The certification of the agreement by Leary DP, she says this is dated Hobart 5 January 2004:

PN176

This agreement shall come into force from 5 January 2004 and shall remain in force until 4 January 2006.

PN177

THE COMMISSIONER: When did we work out the pay period commenced from? I think it commenced from the 7th.

PN178

MR SIM: The pay period is actually after both the dates, but I’m just thinking if we’re going to go put it through formally if it does get voted through in two weeks time and we’ve got the wrong date, are they going to throw it back out because technically it’s - - -

PN179

THE COMMISSIONER: You can be assured, Mr Sim, there’ll be no technical problems with the certification of this agreement.

PN180

MR SIM: Thank you, okay.

PN181

THE COMMISSIONER: But let’s have a look at that and if the correct date is the 5th we’ll put the 5th in. Okay?

PN182

MR SIM: Yes.

PN183

THE COMMISSIONER: And we’ll do that immediately and revise the document. I’ll just have a quick look at the last EBA. Any other issues? No? All right. Well, this matter is adjourned. We’re now off the record.

<ADJOURNED INDEFINITELY [4.48PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #MT1 GRAPH SHOWING USAGE OF METRO TASMANIA PN126
EXHIBIT #MT2 DRAFT PROPOSED INTERIM ORDER PN126