C2006/133, Transcript of Proceedings [2006] AIRCTrans 819 (14 June 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 15184-1

COMMISSIONER LEWIN

C2006/133

TRANSPORT WORKERS’ UNION OF AUSTRALIA
AND
K&S INTEGRATED DISTRIBUTION PTY LTD
s.170LW pre-reform Act - Appl’n for settlement of dispute (certified agreement)
(C2006/133)

MELBOURNE

10.12AM, THURSDAY, 01 JUNE 2006

PN1

MR M MCNESS: I appear for the TWU and with me is MR H SMITH also from the TWU and we have two of the employees with us, MR P O'CONNOR who is the shop steward and his offsider, MR S AZZOPARDI.

PN2

MS D OBERDAN: I seek leave to appear and with me is MR M LANE and
MS K SMITH from K&S.

PN3

THE COMMISSIONER: Good, thank you. Is there any objection to that application, Mr McNess?

PN4

MR MCNESS: No.

PN5

THE COMMISSIONER: Very well, leave is granted, Ms Oberdan. Yes,
Mr McNess.

PN6

MR MCNESS: Commissioner, if it pleases, what we're proposing is to give a little bit of a background on the process so far and the dispute at hand and perhaps once I've completed that and once the company has completed their statement we may look to go into conference, if that's okay. It's in regards to the closure at this point of a general transport depot, K&S Integrated Distribution in Clayton South. The background, Commissioner, is we have six forklift operators operating at that depot at this point working on a paper contract, a storage and distribution contract. Currently we have a situation where the contract has been lost or not renewed and that will lead to the closure of the depot and the subsequent ceasing I suppose of services at that depot of these six employees.

PN7

The lengths of service we have at this point for the six employees are 18 years, 13 years, 12 years, two lots of five years and a two year service. Myself in particular I've been involved with the yard as an area organiser for about six years. Currently these employees work under a certified agreement and are bound by the Transport Workers Distribution Facilities Award 1996. We believe at this point, although we may need to confirm the exact grades at this point, four employees are grade 1 forklift drivers and we believe two maybe grade 4 forklift drivers due to the operation of heavier equipment.

PN8

Commissioner, in late April this year it was announced that K&S ID have lost the PMP Paper contract. Essentially it was, as I believe, 100 per cent of the warehouse staff existing or current workload. It was indicated that the depot would close at the end of June 06. At this point I believe that date has been confirmed. I attended a meeting of the drivers to discuss this information on the 1st of the 5th. Some general information had been verbally distributed by the company to the employees at that point. That information was discussed amongst the employees. Briefly two options were given for alternative employment. One to maintain existing jobs as forklift operators at a K&S Truganina site which is on the other side of town.

PN9

Option number 2 at this point was to be retrained and qualified as semi trailer drivers believed to be on the existing side of town. After discussion with the drivers it was clear that neither of those options were acceptable to the existing employees. The EBA does contain a dispute settlement clause. At that point we decided to enact that procedure and step through it with a view to resolving the issue. The company also agreed that we should kick through that process. We met with the company, the delegates. We had the depot manager, Malcolm Lane, and also a HR representative from K&S, Kay Evans, at the initial meeting with myself and the delegates. That was held on 4/5/06 at the Clayton depot.

PN10

At that point no real further information was provided, other than the confirmation of the previously mentioned two options. There was no further real development in discussions at that point. We put our cases forward to the company, explained our position and the company took that on board and it was agreed to move through the dispute settlement procedure. A further meeting - or the next step involved senior management and/or a senior official from the union. That meeting was held on 17/5/06 involving general manager of K&S, Steve Fenning, and senior official from the TWU, John Paccone.

PN11

Nothing further at that meeting was resolved either. We put our cases forward, as did the company. We hadn't really received a great deal of definite information from the company, or detailed information I should say. We requested some further letters and subsequently did receive those within a week. They didn't really resolve any difficulties in regards to the employees options that have been provided. They didn't involve discussions about the difficulties that the existing forklift drivers would encounter in either moving to the other side of the city or becoming semi-trailer drivers. The company certainly acknowledges those concerns. At that point it was decided that we should move to the further step in the dispute settlement procedure and subsequently we're here today.

PN12

We are seeking redundancies for these six forklift drivers, Commissioner, as per the existing certified agreement in clause 17 and I do have a copy of that if you wish to - - -

PN13

THE COMMISSIONER: Is that the redundancy entitlements?

PN14

MR MCNESS: That's correct.

PN15

THE COMMISSIONER: I have them in front of me.

PN16

MR MCNESS: Okay.

PN17

THE COMMISSIONER: Well, at least what I have in front of me is what was attached to the notification and that seems to be an extract from the certified - - -

PN18

MR MCNESS: I do have a complete copy of the agreement, Commissioner.

PN19

THE COMMISSIONER: Yes, well, that would be suitable. Good, thank you.

PN20

MR MCNESS: And that is clause 17 in that agreement.

PN21

THE COMMISSIONER: This is not the Commission's print, is it?

EXHIBIT #A1 CERTIFIED AGREEMENT

PN22

MR MCNESS: So as per clause 17 of that agreement which details the redundancy entitlements and processes, part of that clause mentions in particular as an example where redundancy payments would be applicable, a loss of contract. That is certainly the case that has occurred in this situation, Commissioner. That is contained in 17(a) of that clause. We didn't really get much of an argument from the company perhaps as to why redundancies were not being offered, other than that there were instructions - - -

PN23

THE COMMISSIONER: Mr McNess, you haven't actually told me so far what the dispute is about. I've got an idea but I think you need to record exactly what it is that you say the dispute is about.

PN24

MR MCNESS: We believe that redundancy entitlements should be offered and as per the agreement.

PN25

THE COMMISSIONER: Look, my understanding and it's simply my deduction from anything you've told me because you haven't stated this explicitly, is that you say that a proper of the terms of the agreement requires payment of the benefits referred to in 17(vi), is that right?

PN26

MR MCNESS: That's correct.

PN27

THE COMMISSIONER: Well, you hadn't said that until now. You told me a lot about what had happened?

PN28

MR MCNESS: Yes.

PN29

THE COMMISSIONER: But you hadn't said to me what the dispute over the application of the agreement actually was, which is what a proceeding under section 170LW of the Act is.

PN30

MR MCNESS: Okay.

PN31

THE COMMISSIONER: I've deduced that that's what you were leading up to but it's important to have it on the record because a part of the function of the Commission is to consider whether or not there is such a dispute as is asserted by the notifier, so I need to know how you're characterising the dispute.

PN32

MR MCNESS: Okay, I appreciate that.

PN33

THE COMMISSIONER: It's pretty fundamental to this jurisdiction.

PN34

MR MCNESS: Yes. Well, we have made application under section 170LW of the Act in that we are in dispute as per I suppose an interpretation of the agreement. We believe that under clause 17 of the certified agreement that redundancy entitlement exists and should be paid. Obviously the company disagrees with that and believes that they have offered suitable or alternative employment.

PN35

THE COMMISSIONER: A suitable position.

PN36

MR MCNESS: That's correct. There is reference in the agreement also in regards to reasonable proximity and we believe that's also at loggerheads with the offer that's been made by the company.

PN37

THE COMMISSIONER: So really the issue within the issue is whether or not given the facts of this matter clause 17(i) is operating?

PN38

MR MCNESS: That's correct. The clause also mentions specifically the dispute settlement procedure as part of that redundancy process and if we couldn't resolve the issue subsequently we could take that here, as we've done.

PN39

THE COMMISSIONER: Well, it appears that it's referred to the Commission for decision.

PN40

MR MCNESS: That's correct, that's correct. And that's certainly why we're here. I don't have anything further at this point. I'm quite happy and I've discussed this with the company, we're quite content to move into perhaps a conference to discuss this in some detail if you wish and move from there and I certainly don't have anything further at this point unless Howard Smith has something to say. He does not.

PN41

THE COMMISSIONER: Thank you, Mr McNess.

PN42

MR MCNESS: Thanks, Commissioner.

PN43

THE COMMISSIONER: Ms Oberdan.

PN44

MS OBERDAN: Well, seeing as my friend went over the background I won't go over the background. But okay, I accept that the issue in dispute is whether or not given on the facts 17(i) of the enterprise agreement is applicable. It is our view that the two options that have been put are suitable alternative positions within the company and that's - - -

PN45

THE COMMISSIONER: Well, it's not alternative. The word alternative is not used.

PN46

MS OBERDAN: Suitable position, sorry.

PN47

THE COMMISSIONER: It's simply a suitable position.

PN48

MS OBERDAN: Yes, within the company that are capable of being performed and they are reasonable proximity to the K&S Integrated Distribution site in Clayton. The first of those alternatives is to continue - sorry, not alternatives, the first other suitable position is to continue working in the position as forklift driver. It's the same position however the only difference will be that there will be a difference in location. The site is at Truganina rather than Clayton, which is approximately 40 kilometres additional travelling time.

PN49

THE COMMISSIONER: 40 kilometres distance?

PN50

MS OBERDAN: Yes.

PN51

THE COMMISSIONER: Is that a round trip, 20 kilometres each way?

PN52

MS OBERDAN: No, that's one way.

PN53

THE COMMISSIONER: 40 kilometres each way?

PN54

MS OBERDAN: Yes.

PN55

THE COMMISSIONER: So that the alternative depot for the forklift is 40 kilometres from the existing depot?

PN56

MS OBERDAN: No, the actual depot at Truganina - that is correct. Okay, that is correct.

PN57

THE COMMISSIONER: So the real question is whether that is as far as that is concerned, because presumably forklift positions presumably at the same level?

PN58

MS OBERDAN: Yes.

PN59

THE COMMISSIONER: And at the same rate of pay?

PN60

MS OBERDAN: Yes.

PN61

THE COMMISSIONER: Whether or not in large clause 17 that is within reasonable proximity to the current site.

PN62

MS OBERDAN: Yes.

PN63

THE COMMISSIONER: So the meaning of the words reasonable proximity is what's at stake.

PN64

MS OBERDAN: Yes.

PN65

THE COMMISSIONER: So I would have to decide whether or not the proximity is reasonable or not.

PN66

MS OBERDAN: Yes, that is correct. Everything else remains the same. The other alternative that has been put has been an offer to train the six employees in the position of local freight driver, so it is a separate position however it does attract a higher remuneration as well and that is going to be at the same site, so that will be at the Clayton site.

PN67

MR LANE: Close by.

PN68

MS OBERDAN: Or just close by.

PN69

THE COMMISSIONER: Close by. Your instructor says close by, what's meant by close by?

PN70

MR LANE: Well, within 5 kilometres.

PN71

THE COMMISSIONER: All right. So in that case the question is not so much reasonable proximity but it's a question of suitability, whether that position is a suitable position because it's a different position.

PN72

MS OBERDAN: Yes. And we would also say that everyone is capable of fulfilling that position.

PN73

THE COMMISSIONER: So you say that there's no - what sort of trucks would these be, what size? Are these 36 tonne articulated vehicle?

PN74

MR LANE: Yes, they are, yes.

PN75

THE COMMISSIONER: So you say there's no impediment to anybody being licensed?

PN76

MR LANE: They would need to be trained.

PN77

THE COMMISSIONER: But they're capable of it. You'll need to stand up if you're going to address the Commission, Mr Lane, I'm sorry.

PN78

MR LANE: Yes, they'd need to be trained and - - -

PN79

THE COMMISSIONER: But you so no impediment to them successfully completing the training?

PN80

MR LANE: No, I don't see any impediment to that, no.

PN81

THE COMMISSIONER: Right. Will they have to undergo any sorts of testing that they may not have yet undergone?

PN82

MR LANE: We would need to put through Adecco training.

PN83

THE COMMISSIONER: Any health issues or are there any sort of elementary hurdles that they would have to jump that they haven't done already for a forklift, apart from the training and the skills of operating the vehicle?

PN84

MR LANE: No, it's a transport environment. Certainly we work in a transport environment now and the guys work as forklift operators. They would be working in a similar environment delivering customer product, no manual handling associated with it.

PN85

THE COMMISSIONER: Do they have to have an eyesight test for instance for a forklift licence?

PN86

MR LANE: Well, yes, yes.

PN87

THE COMMISSIONER: Will they have to have the same eyesight test for - --

PN88

MR LANE: Well, an eyesight test would be a part of an ordinary licence.

PN89

THE COMMISSIONER: It's just a general test?

PN90

MR LANE: Yes.

PN91

THE COMMISSIONER: There's no particular bar that's imposed? I'm just giving that as an example as to whether there are any other issues that might stand in their way that don't exist in relation to forklift. All right, thank you.

PN92

MS OBERDAN: We would be prepared to go into conference.

PN93

THE COMMISSIONER: I take it you would be prepared to continue the employees wages and to meet the costs of their retraining, for the articulated vehicle licensing?

PN94

MS OBERDAN: We would meet the costs of retraining, yes.

PN95

THE COMMISSIONER: All right. Well, I will adjourn the matter into conference and terminate the formal record of the proceeding, thank you, and I will adjourn the parties at the bar table.

<NO FURTHER PROCEEDINGS RECORDED

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 CERTIFIED AGREEMENT PN21