C2005/268, Transcript of Proceedings [2006] AIRCTrans 63 (10 January 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13941-1

COMMISSIONER TOLLEY

C2005/268

TRANSPORT WORKERS’ UNION OF AUSTRALIA
AND
K&S FREIGHTERS PTY LTD
s.99 - Notification of an industrial dispute
(C2005/268)

MELBOURNE

WEDNESDAY, 14 DECEMBER 2005

Continued from 13/10/2005

PN1

MR J PARKER: I appear on behalf of the Transport Workers' Union, with me MR D EDWARDS, the organiser for the K&S yard and MR BRABAZON, the delegate for K&S.

PN2

MS K EVANS: I'm the HR Manager for K&S Freighters, with MR P CURMI, an operations manager at Melbourne Full Load.

PN3

THE COMMISSIONER: Thank you. From memory, the last time this matter was before me the parties were to have some discussions, and further that I spoke to Mr Parker and Ms Evans by telephone and asked Ms Evans to make some inquiries as to the understanding that the agreement had been reached, or literally reached I think with Mr John someone, whose name escapes me.

PN4

MS EVANS: Findlay, my predecessor, yes.

PN5

THE COMMISSIONER: Yes. All right. Where are you at, ladies and gentlemen, and the Commission is in session, not in conference?

PN6

MR PARKER: Commissioner, if it please, can I just take a few minutes to go back in history because this has a little bit of time frame and that's why I'm here today. I was the previous organiser in 2003 for K&S at Millers Road and Alan was the delegate, as he is today. At that point in time we had to do a new enterprise agreement and there also arose an issue of garaging of B Double trucks at that site because the current landlord at the Millers Road site was reducing the contract and there was less room to park vehicles.

PN7

I had a number of meetings with John Findlay, who was the current HR Manager at the time, and we had formally arrived at an enterprise agreement that was acceptable to drivers and people that worked in the warehouse at Millers Road and we put together an enterprise agreement. Now, in that proposal from John Findlay who came down to the site on - I've got my original notes here - on 31 October 2003. We had a meeting, it was a Friday at 6 am at Millers Road to explain to the boys what the new state of affairs would be and that part of that agreement would be that the B Double vehicles would be garaged at Whitehall Street and that they would continue to do their normal duties.

PN8

However, at the expiry of this enterprise agreement for the 2003 one which expired in December 2004 the B Double drivers would revert to a lower rate of pay, slightly lower rate of pay, what we call the Whitehall Malpool Agreement. Now, there was of course, as you can imagine, some angst amongst the B Double drivers at that point in time. It was quite a matter for discussion and it was explained to us by John Findlay, which I didn't have a problem with him, the argument, he said, listen, we are creating a new process for better utilisation in the business of these B Double vehicles and what we want to do is garage these B Doubles at Whitehall Street and we want to utilise these vehicles to do work other than the K&S work.

PN9

Now, I want to just briefly talk about the K&S work. K&S Millers Road site is basically the Norski contract, Paper Link contract and Wharf to Rail Containers. It's quite specialised, because the key of the Norski contract has big rolls of paper for such people as The Herald Sun and The Age.

PN10

THE COMMISSIONER: Yes, we're aware of that.

PN11

MR PARKER: So you are aware of the different sort of structure as to Whitehall Street. The vehicles are set up, the skulls are set up on the B Doubles to reflect that type of work and as they go to places like The Herald Sun and The Age, it's quite specialised in what they do. The new rule was explained to these B Double drivers, that at the end of this, we said, all right, we'll pay you for another 12 months at the Millers Road rate of pay, but then we're going to utilise these B Double vehicles in the Whitehall arrangement in Malpool and they'll go everywhere and anywhere and they'll be better utilised.

PN12

What we've discovered is that as we've gone into this year, created a new enterprise agreement which I want to talk about in a minute, what we've discovered is that they're still doing Millers Road work. 80 per cent of the work is Millers Road work. This was not what John Findlay discussed with me or with the employers that I was representing at that time. My understanding is that they were going up to Whitehall totally immersed in the new Whitehall agreement and that's why we agreed with that.

PN13

There's actually a letter of correspondence to confirm that. Commissioner, you probably have a copy of that. It's dated 5 November 2003, K&S Freighters letterhead.

PN14

THE COMMISSIONER: No, I don't.

PN15

MR PARKER: If you could just have a read of that one, Commissioner.

PN16

THE COMMISSIONER: Have you got a copy of that, Ms Evans?

PN17

MS EVANS: Yes, thank you.

PN18

THE COMMISSIONER: Yes, thank you.

PN19

MR PARKER: Thank you, Commissioner. I'd just like to talk about that letter. You will notice down the bottom there that there may be a little initial there from John Findlay himself. There was a typo there, it said 31 December 2003, and I actually went to John's office at the time and said, John, we've got a typo in there. He corrected that for me on the spot and that's what we see today. It should have read 31 December 2004. So you can see that at that point in time, the workers in the TWU agreed with the point of view that Mr Findlay had put up to us and we honour that commitment.

PN20

However, what continued to happen in 2004 is they continued to do the paper contract, the Paper Links, Wharf to Rail work, that never changed. Now, we move into 2004 - - -

PN21

THE COMMISSIONER: So in essence, up to this point which, I think, because the vast majority of the work is the Millers Road work, they should still be on the Millers Road rate of pay?

PN22

MR PARKER: Yes, and there's one other - I'll just finish on one point, Commissioner, you've picked up the gist of what we're talking about. What really disturbs me, and I didn't know this last time we were here in the Commission because I would have raised it with you, was that on 27 January this year I'm now told that the management came down and had a meeting with the employees and these five B Double drivers were there and they voted on the new Millers Road EBA with the B Double rates in there and the semi rates in there, all the truck rates were in there.

PN23

They're there voting, and I think Kaye Evans might have been there at that point in time, they're there voting, these same five drivers are there voting on this EBA, and now they're told that it doesn't apply to them. They all voted yes. I think we had, was it 14 yes votes and none against? They all voted for this new agreement believing that they were going to get paid these B Double rates and now that part, I'm told - I'm totally confused as to why that's going on at all. I can't understand, when this issue has been brewing, that we eventually got management there, they're explaining to the men who worked there, who drive these B Doubles, and this has been an issue because we've always had this letter, because this letter is dated 5 November 2003, so everyone knew about this letter.

PN24

To then have the management there and voting on that, I think that's really wrong, because they should have said, well, hang on, you're going to go on these other rates. So they've even voted on this new agreement. As soon as that's voted in, I believe, the delegate tells me, that the rate of pay stopped, even though the pay slips were showing Millers Road for the next six months, and they still continue to do Millers Road Norski work. Thank you, Commissioner.

PN25

THE COMMISSIONER: Yes, thank you. Ms Evans?

PN26

MS EVANS: Thank you, Commissioner. Firstly, again I'd like to apologise for my non-attendance at the last hearing and I've made appropriate steps to ensure that won't happen again. As I've provided to you in the minutes from the meeting taken before Mr Parker and myself, Mr Findlay was involved in the discussions and the transfer of Millers Road employees to Melbourne Full Load. I understand that it wasn't an EBA negotiation process that took place during those discussions. In fact, the Millers Road EBA agreement commenced in '02 and ran through to January '04.

PN27

It was a meeting specifically to talk about the transfer of drivers from Millers Road to Malpool and the Malpool function was set up predominantly to cover the Melbourne area and certain tasks that encompassed some of those tasks form Millers Road. The agreement, as I understand, was reached to eliminate any redundancies at the Millers Road site and the employees were offered the opportunity to transfer to Melbourne Full Load.

PN28

It was explained to them that within the life the agreement, the existing agreement would prevail and when that expired they would go on to the Melbourne Full Load Agreement. As I understand it, those drivers have been integrated into the Melbourne Full Load operation. We won't dispute that they have predominantly taken on the tasks that were performed by the Millers Road operation, but they also have been managed from the Melbourne Full Load operation and they have gone on the overtime roster and like, at the Melbourne Full Load operation.

PN29

In terms of the Millers Road agreement, when the agreement was reached, there were members of the Melbourne Full Load operation there. That had been transferred. We had lengthy discussion about the drivers. They claimed that they were still attached to that agreement. We told them they weren't attached to that agreement. We agreed that they had then laid a claim that they were attached to that agreement. We said that we would put that aside, that they weren't part of this agreement and they wouldn't receive an increase. I don't believe that they were part of that voting process.

PN30

We did have a subsequent meeting after the Millers Road agreement had been reached and voted and this issue has been ongoing since then.

PN31

THE COMMISSIONER: Ms Evans, was the ballot in question a show of hands or a secret ballot?

PN32

MS EVANS: It was a show of hands held by the union organiser.

PN33

THE COMMISSIONER: And how many people were on the site?

PN34

MS EVANS: Off the top of - I can't give you exact numbers. I would have thought there would have been - - -

PN35

THE COMMISSIONER: There must have been a record kept somewhere of the number of persons in attendance at the meeting and the number of votes for and against or abstaining.

PN36

MS EVANS: There will be. I believe it was unanimous.

PN37

THE COMMISSIONER: Well, if it was unanimous and those persons who are the subject of this hearing and the earlier hearing were not moved away from that meeting to vote?

PN38

MS EVANS: I can't give you an answer because I wasn't in the room when the vote was taken.

PN39

THE COMMISSIONER: Yes, thanks, Ms Evans.

PN40

MS EVANS: Thank you.

PN41

THE COMMISSIONER: You see, ladies and gentlemen, my conundrum is this. You are asking me to interpret an agreement. That's a power that doesn't labour this Commission. It's a matter for a Full Bench. An application can be made for interpretation separately. Otherwise we can sit here all day and I can tell you to go and sort it out and you can agree or disagree, nicely or whatever, but at the end of the day it won't be finalised.

PN42

I might add, if his Honour decides that it is a matter of interpretation and it is a matter worthy of the attention of a Full Bench of the Commission, the parties will be required to provide a lot more documentation than that which has been provided to me and I just hope you've got the documentation, not memory or the hope that someone would agree with what you've said, because it's not as simple as that. So what do you want to do? Mr Parker, the ball is in your court, sir, in the union's court, not in Ms Evans'.

PN43

MR PARKER: Commissioner, we think there's a principle at stake here. The fact that I'm concerned that 14 people voted unanimously, the document is plain.

PN44

THE COMMISSIONER: Yes, you've explained all that to me.

PN45

MR PARKER: We'll have to go and seek some directions from the Secretary of the Transport Workers' Union and we're happy to do that.

PN46

THE COMMISSIONER: Okay. Well, I think to be fair to both sides, it's the wise thing to do. It's over and done one way or the other. Otherwise it's going to sit there and it's going to niggle at all of you and someone's going to spit the dummy somewhere from either side and it's going to cause problems, probably problems that can be avoided. I'll adjourn this matter sine die and I await your correspondence from the Secretary as to whether you lodge the matter for interpretation of the agreement or not. Thanks very much.

<ADJOURNED INDEFINITELY [11.40AM]