C2007/2495, Transcript of Proceedings [2007] AIRCTrans 185 (13 April 2007)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 16773-1

COMMISSIONER TOLLEY

C2007/2495

TRANSPORT WORKERS’ UNION OF AUSTRALIA
AND
TOLL TRANSPORT PTY LTD T/AS TOLL CONTRACT LOGISTICS
s.170LW -prereform Act - Appl’n for settlement of dispute (certified agreement)
(C2007/2495)

MELBOURNE

3.01PM, TUESDAY, 27 FEBRUARY 2007

Hearing continuing

PN1

MR H SMITH: I appear for the Transport Workers' Union of Australia, with me MR D COGHILL, the area organiser, and MR J COLES, assistant delegate on that particular contract.

PN2

MR L CONNOLLY: I seek leave to appear today for Toll. I also have with me MR J HALL who is the manager for the particular area and MR D HUGHES is also here today.

PN3

THE COMMISSIONER: What do you say about leave, Mr Smith?

PN4

MR SMITH: I'd prefer he wasn't here, Commissioner. I don't believe solicitors add anything to resolving disputes and in the end, arising out of today, we would hope that the parties talk to each other which is what's really been lacking up to today and if any matters can't be resolved in those discussions we come back before you for a formal decision. So my view is that he's not required. If the Commission pleases.

PN5

THE COMMISSIONER: I'm going to grant leave on the basis that Mr Connolly knows me, and so do you, on the basis he doesn't try and play games. If he does, he'll be going home real quick. Leave is granted. Mr Smith?

PN6

MR SMITH: If the Commission pleases, I'd like to place some brief matters on the record and then seek to go into conference because the other two gentlemen with me are probably in a better position to add some matters. But fundamentally we have a dispute for what they call the shunt drivers on their base weekly rate which is set out in the agreement. I assume you've got a copy, Commissioner?

PN7

THE COMMISSIONER: You assume too much.

PN8

MR SMITH: That leaves me at a little bit of a disadvantage then.

PN9

THE COMMISSIONER: Doesn't it?

PN10

MR SMITH: Unless you can give us a short adjournment and get you a copy.

PN11

THE COMMISSIONER: Have you got one there, have you?

PN12

MR SMITH: I haven't got a spare, Commissioner.

PN13

THE COMMISSIONER: Hang on. Your delegate can find one, or your assistant, or your organiser.

PN14

MR SMITH: Every time I've bought one before, Commissioner, you've had a copy.

PN15

THE COMMISSIONER: You go into your submission and if I need to ask you a question, I'm sure with the assistance of your assistant and your delegate you can answer it.

PN16

MR SMITH: If we go to clause 8.2 of the agreement, Commissioner, you'll see as of 1 January this year the base rate is $655.96. Now, the particular drivers in dispute work, or are supposed to work, if they don't work, what's called a five and three roster where they work four hours and if you go over to 9.1 where they're supposed to work four shifts at 12 hours, which are made up of their 7.6, and overtime, and they're supposed to get an additional shift of 7.6 hours, a fifth day. They have not been getting that fifth day.

PN17

We then go to clause 32, Superannuation, and in those weeks where they have only worked 30.4 hours, the superannuation is based on 30.4 hours and a leading hand allowance. To the best of my knowledge, I stand to be corrected, I don't believe they're getting the superannuation paid on the shift penalty when they get it, like, for a Saturday and Sunday. They may work over the weekend as part of their routine shift. They're not getting the super paid on that.

PN18

Broadly, they're the three issues that we've notified on, Commissioner. I'll be testing your memory, there were some matters before you earlier last year in relation to this contract.

PN19

THE COMMISSIONER: Yes, I remember it, yes.

PN20

MR SMITH: Under a section 99 relating to rostering and we've had ongoing - - -

PN21

THE COMMISSIONER: I think Mr Connolly was involved in that, were they, from memory?

PN22

MR SMITH: I wasn't here.

PN23

THE COMMISSIONER: Mr Connolly was involved, a conciliation meeting was convened at the union's offices.

PN24

MR SMITH: A second time, yes.

PN25

THE COMMISSIONER: Yes.

PN26

MR SMITH: I also understand now, while that's not part of the formal listing today, that that's an issue that seems to have reared its ugly head. I mean, we find it very difficult with this company because usually with Toll the union has a good working relationship and if we have an issue with them, we are able to usually sit down with the particular division and if we're having a bit of difficulty with the particular division, we go to the likes of Wright Walters and we're able to resolve matters.

PN27

This particular division seems to just say, no, we don't interpret a clause in a particular way and we can't advance it to some resolution. Commissioner, as I said, unusual for Toll, more usual of other companies, and seems to be unique to this particular contract, and what we'd like is for the Commission to either direct or advise the parties to confer on matters in dispute and if we're not able to resolve those via direct discussion, have them brought back here and have you resolve them pursuant to the powers that you have. Other than that at this stage, and after Mr Connolly has made his comments and with your agreement I'll be happy to go into conference, Commissioner.

PN28

THE COMMISSIONER: Yes, thanks, Mr Smith. Mr Connolly, do you wish to make any comments before that?

PN29

MR CONNOLLY: Yes, thanks, Commissioner. A little bit of a loss. I'll be as bold as to say maybe there's a miscommunication organisers of the Wodonga site and the state office, but my client, as you'd well know, we would say, Commissioner Tolley, is always open to dialogue, always open to discuss these types of matters and considers itself as very amenable to discussion. The comments by my friend that the managers with respect to this particular issue have not been open to resolution is inaccurate.

PN30

The managers, and the most significant manager is to my left, in fact, as he had thought, had come to an agreement with the shunt drivers as to their hours and their roster and then we get a letter from the state office saying there is no such agreement and now we're here today, as I'm instructed. There's a roster in place where there is always a five day roster that has been in place. It is in place and it is to the satisfaction, as we understand it, of the shunt drivers and that is a four days on at 12 hours, one day on at eight hours and three days off, and they're notified of those three days months in advance, and that roster is occurring.

PN31

So we're not quite sure where some of these instructions are coming from from my friend. In terms of superannuation payments which we understand is the nub of the issue here today, Toll is always and intends on paying as it is required to do under the EBA, the awards and the Super Administration Act, and when we can, and perhaps this will occur off the record, pinpoint a bit more as to the nub of the concerns, we will then be able to advise our client - this is a reasonably complex issue. It always is when you raise superannuation.

PN32

So if we can find out with a bit more clarity as to the arguments - - -

PN33

THE COMMISSIONER: I'm not going to dispute that, Mr Connolly.

PN34

MR CONNOLLY: Yes, and the issues. We'll either need to stand this matter down to advise our client and come back to the union or perhaps we can discuss it today and come to a resolution. I mean, the important people for Toll are here today, have flown down from Sydney. So they're here ready to talk. So let's do it.

PN35

THE COMMISSIONER: We'll adjourn into conference with the parties.

<OFF THE RECORD

PN36

THE COMMISSIONER: Yes, Mr Hall?

PN37

MR J HALL: Yes. I'll recalculate all of the wages that will be paid to all relevant employees, taking into consideration superannuation and annual leave, sick leave, et cetera, so the objective being that we will pay consistently throughout the year.

PN38

THE COMMISSIONER: On what I'll term an annual salary basis.

PN39

MR HALL: Yes, Commissioner, that's correct.

PN40

THE COMMISSIONER: Okay.

PN41

MR CONNOLLY: The superannuation issue, Commissioner, this is something that we need to consider further and Toll needs to consider further. We don't want to be locked in a position like today. However, we would see that as consistent with your view, and that is, we have further discussions on that.

PN42

THE COMMISSIONER: Yes. Well, I make it clear, I'm not trying to lock either side into that. I'm just saying to either side you should go and have discussions as much as you can, arrive at some resolution because I'm not trying to dodge work, I never have and never will but I'd prefer for you to work that out among yourselves if you could. Otherwise a member of the Commission is going to have to arbitrate the matter and home grown solutions are better than when other people foist them on you. Have you anything further to say, Mr Hall?

PN43

MR HALL: I'm sorry, do I?

PN44

THE COMMISSIONER: Anything further to say?

PN45

MR HALL: No, Commissioner.

PN46

THE COMMISSIONER: Mr Connolly, anything further to say?

PN47

MR CONNOLLY: No, Commissioner, I don't think so. No, Commissioner.

PN48

THE COMMISSIONER: Mr Smith?

PN49

MR SMITH: No, Commissioner.

PN50

THE COMMISSIONER: Yes, thank you. All right, well, the parties will go away and try and resolve the matter between themselves and I commend that to them and I congratulate them on their good sense anyhow, and the matter will be reported back to the Commission at 11 am on Tuesday, 27 March. In the happy event that the parties have reached total agreement prior to then, I'll be most grateful. I'm sure they will and they can inform the Commission they no longer need a hearing. The Commission is adjourned.

<ADJOURNED UNTIL TUESDAY 27 MARCH 2007 [3.47PM]