C2007/2564, Transcript of Proceedings [2007] AIRCTrans 198 (20 April 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16761-1

COMMISSIONER TOLLEY

C2007/2564

TRANSPORT WORKERS’ UNION OF AUSTRALIA
AND
SCOTT’S TRANSPORT INDUSTRIES PTY LTD
s.170LW -prereform Act - Appl’n for settlement of dispute (certified agreement)
(C2007/2564)

MELBOURNE

10.26AM, THURSDAY, 05 APRIL 2007

Continued from 28/3/2007

PN174

THE COMMISSIONER: Are there any changes in the appearances?

PN175

MR FENNELL: Commissioner, I just might announce that the two who appeared with me at the last hearing are both on annual leave, the delegates, Mr Keith Wiggett and the organiser, Mr Davids.

PN176

MR KURCZMANSKI: Good morning, Commissioner. No changes to this side.

PN177

THE COMMISSIONER: Yes. Now, Mr Kurczmanski, have you got any further submissions to make, giving rise to my comments when we adjourned last time?

PN178

MR KURCZMANSKI: I have a brief submission in conclusion.

PN179

THE COMMISSIONER: I don't want to hear that now.

PN180

MR KURCZMANSKI: I would like to hear what Mr Fennell has to say.

PN181

THE COMMISSIONER: Yes, Mr Fennell.

PN182

MR FENNELL: Thank you, Commissioner. In response to Mr Kurczmanski's submissions at the last hearing, Mr Kurczmanski made mention of clause 4 of the Scott's Bulk Tanker Enterprise Agreement and particularly the second paragraph of it and I'll read it out:

PN183

It is a term of this agreement that whilst this agreement remains in force, employees covered by the terms of the agreement and future employees covered by this agreement will continue to enjoy conditions of employment and rates of pay no less favourable than the award and this agreement, provided that these conditions and rates of pay do not disadvantage Scott's Transport Industries Pty Ltd against other contractors in the oil industry.

PN184

It was particular trying to keep to that part of the last sentence of that clause was the reason that we approached Scott's in trying to seek the extra week's leave for the 13 day roster. If you go to Mr Kurczmanski's exhibit R8 and that's the summary of these enterprise agreements, the fourth example on that is the Toll Liquid Distribution Victorian Enterprise Agreement and if you have a look under the Sunday shift pattern that says that - excuse me, if you go to the right-hand column, the annual leave provisions, it shows that those on 6.5 shift roster do get the five weeks' annual leave.

PN185

The reason that I point that out is actually this work that we're talking about was actually being performed by Toll Logistics and it was work that was won away by Scott's and that's why we were trying to keep if you like a level playing field in that part of the industry. Also, Mr Kurczmanski highlighted clause 10.2.5 of the agreement which says:

PN186

Should any employee agree to perform tasks not covered by this agreement, such employee will be paid according to rates included in the Scott's Adelaide Tanker Agreement for such work.

PN187

We don't believe that is a matter that should be pointed to here, because the work for the employees that we're discussing is actually work that does fall under the provisions of the Scott's bulk tanker Melbourne operation. All we're doing at this point in time is having a dispute about the quantum of annual leave for Sunday shifts, so the reference to the annual leave provisions of the Adelaide agreement should not form part of any decision-making. What I would like to actually do, Commissioner, is actually hand up an extract of the award.

EXHIBIT #A1 AWARD EXTRACT CLAUSE 25.1.5

PN188

MR FENNELL: I will read out 25.1.5:

PN189

Continuous work means work carried on with consecutive shifts of employees throughout the 24 hours of each of at least six consecutive days without interruption, except during break-downs or meal breaks or due to unavoidable causes beyond the control of the employer. Non-continuous shift work means shift work other than continuous shift work as defined.

PN190

The reason for pointing that out is that the work that's being performed by the Woolworths drivers would fall in the definition of continuous shift work. It is six consecutive days. They're 12 hour shifts. The only cessation of work is for the change-over of drivers and it actually goes more than the six days. There is actually a Sunday day shift, so it's actually six and a half days that there is ongoing work. I'd like to actually hand up a bit of a comparison on wage rates that I've prepared, Commissioner.

EXHIBIT #A2 COMPARISON ON WAGE RATES

PN191

MR FENNELL: It's only a simple summary, Commissioner, but what I've attempted to do here is identify the difference between what has been paid by the people working the common hourly rate with the 20 per cent compared against the base rate and double time. The wage rates as of 1 February of this year in the enterprise agreement, for an articulated vehicle the base rate is 22.19 per hour. If you extrapolate that out by double time, that gives you a rate of $44.38.

PN192

The 28.53 is the current common hourly rate for a single articulated vehicle and with the 20 per cent loading - sorry, Commissioner, I've actually made an error. The 19 metre B double might be a better comparison. I've actually gone on an old rate for the articulated vehicle. The 19 metre B double, the base rate is $22.80 per hour, extrapolates out to $45.60 for double time and the common hourly rate as of 1 February is $30.78 with a 20 per cent loading for Sunday work is 36.94. I will come back to that a bit later in the rest of my submission, Commissioner. At the last hearing, Mr Kurczmanski used the decision of a Full Bench in Sydney and it was exhibit R3. If you go to page 6 of that exhibit.

PN193

THE COMMISSIONER: Whereabouts?

PN194

MR FENNELL: At arbitral history.

PN195

THE COMMISSIONER: Yes.

PN196

MR FENNELL: The Full Bench in their deliberations went:

PN197

Both parties took us to a brief arbitral history of the granting of annual leave, specifically the evolving history of payment of an extra week's leave for shift workers ...(reads)... ordinary hours or overtime on such days. The second is that it appears clear the continuous method of rotating through all three shifts, morning, afternoon and evening.

PN198

The reason for going to that is in the decisions that were used by Mr Kurczmanski last week, there appears to have been clear definitions of shift workers working Sunday and the employers arguing that these people weren't continuous shift workers and had no entitlement to the annual leave. On the previous page, page 5, the seventh paragraph where it starts off:

PN199

DHCE did not dispute the overriding general tests arising from arbitral authority which governs the grant of an additional week's annual leave, namely employees must be seven-day shift workers ...(reads)... in similar terms to that provided in the Hotels, Resorts and Hospitality Industry Award, the Hotels Award.

PN200

The employer itself in that matter seemed to be arguing that there was no dispute about whether a worker in a continuous industry would be entitled to the extra week's leave. They were basing their submissions that the employees involved in the dispute weren't continuous shift workers and therefore the test of the annual leave test case, the 34 Sundays, is the relevant authority to be relied on. In exhibit R4 at page 7, paragraph 35, again you have the employer in the matter, Mr Lemon:

PN201

Right, well, we believe that the substantive issue that's preconditioned to the extra annual leave in clause 5.1.1(b) of the award and that is an employee who works a continuous shift ...(reads)... list of persons or groups with their turns or periods of duty, a list, that roster in this case is covering continuous shift work.

PN202

The Commissioner, over the page:

PN203

So just to make sure I understand that, Ms Lennon, you are saying that 5.1.1(b) has no application because the employees in question do not work a continuous shift roster?

PN204

Mr Lemon:

PN205

That is correct, sir, with the emphasis on the word roster or a roster, one single roster.

PN206

THE COMMISSIONER: Can I stop you there, Mr Fennell, and make it quite clear at this stage, I don't agree with the Commissioner's decision in that matter, but he makes his own decisions, but I can tell you now I had a long discussion with him at the time, after he had made that decision and in my view he is wrong, so it would be wrong if I didn't state that now.

PN207

MR FENNELL: Okay. The other thing I would like to point out in exhibit R4 is at the findings, finding 1, Commissioner Mansfield in this matter:

PN208

For employees that the CPS should be eligible for an extra week's annual leave, it is required that they normally work on continuous shift rosters and regularly work on Sundays and public holidays as part of that roster.

PN209

The reason I point that out is that during Mr Kurczmanski's submission the other day, he skipped over the first two findings and just highlighted the third finding and I will read that out:

PN210

As production officers at CPS do not usually work on continuous shift rosters and also fall considerably short of 34 Sundays and public holidays ...(reads)... not eligible for an extra weeks' annual leave, nor are they eligible for a proportionate amount of an extra annual leave.

PN211

THE COMMISSIONER: Mr Fennell, isn't it the accepted dicta in this industry that to gain something, you've got to work more than half as a basis, coming from an industry many years ago where continuous shift work and seven day work and public holiday work, including Christmas Day, was the norm?

PN212

MR FENNELL: The industry norm for the transport side of the oil industry, there was no seven day shift work until the introduction of contractors into the industry about - and I will get the year wrong - possibly about 1993 or 4.

PN213

THE COMMISSIONER: I think you might be right and I wasn't referring to the oil industry, by the way. I don't come from the transport industry, don't forget.

PN214

MR FENNELL: All I can answer it this way, Commissioner, is that in the history that I've been involved in with the Victorian branch since 1992, we don't have a lot of parts industries that are seven day shift, except for the airport operations.

PN215

THE COMMISSIONER: I was waiting for you to mention them, Mr Fennell. Thank you.

PN216

MR FENNELL: R7, Mr Kurczmanski actually referred to the decision you made in a matter with Linfox in 2003. What I'd like to say about that matter is that the Commission when you made your deliberations, you took into account all the issues were at hand and there were a number of matters in dispute, but one of the differential issues at the time compared to the matter we've got before us was that employees, the new employees of Linfox for the oil industry work had actually signed letters of appointment where they agreed to voluntarily do Sunday work and eventually we had a dispute and an arbitration that was conducted by yourself where you came down with a number of Sundays.

PN217

THE COMMISSIONER: Yes, 20.

PN218

MR FENNELL: Commissioner, I'd like to actually hand up now another decision. It's actually print number 900964.

EXHIBIT #A3 DECISION MUNRO J AND NATIONAL UNION OF WORKERS V BRIDGESTONE EARTHMOVER TYRES PTY LTD

PN219

MR FENNELL: This matter was a dispute in relation to payment of weekend penalties whilst on annual leave, seeking to gain five weeks' annual leave and while on sick leave, payment of weekend penalties to be paid. I'd like to go to page 2 at paragraph 7:

PN220

The genesis of the issues in dispute was the company's negotiations in 1997 quite unequivocally was to be a 24-hour continuous shift roster worked over seven days ...(reads)... also made provisions for flexible work arrangements allowing for lags at commencement of the normal shift to accommodate a rest period for overtime.

PN221

THE COMMISSIONER: From memory, that rest period was to be eight hours from cessation of work and commencement of work.

PN222

MR FENNELL: I think you're right, Commissioner. Just jump ahead to paragraph 13 on page 3 of the decision:

PN223

The dispute arose when the relevant employees ceased being engaged on continuous work within the meaning of the expression in the award. It continued the day shifts in the agreement ...(reads)... other words, when weekends are worked by rostered crew, the work is rostered Thursday to Monday inclusive.

PN224

I might just take you, Commissioner, to page 11 of Munro Js deliberations at 54, paragraph 54:

PN225

In that context, the silence of the agreement about the rates applicable to ordinary time working hours on -

PN226

THE COMMISSIONER: Sorry, page 11 runs from 44 to 47.

PN227

MR FENNELL: Sorry, Commissioner.

PN228

THE COMMISSIONER: If you're talking about paragraph 54, that's on - - -

PN229

MR FENNELL: Sorry, I've actually skipped over something, Commissioner. Page 11.

PN230

THE COMMISSIONER: What paragraph?

PN231

MR FENNELL: At 45.

PN232

THE COMMISSIONER: Yes, Mills and Sorrell.

PN233

Mills and Sorrell in their 1975 work repeated observations from earlier editions about the origins and reasons for the award of longer periods of annual leave in particular cases ...(reads)... compensation for the lower payment they receive for weekend work, Re South Australia -

PN234

THE COMMISSIONER: I am familiar with all of those cases. There is no need to read them out. I can assure you when I asked you to make sure you gave the Commission other cases in other industries, that's what I was talking about. I am sure Mr Kurczmanski was aware of that, so you can take it I am familiar with them and I intend to peruse them again.

PN235

MR FENNELL: It goes on at 46:

PN236

In the first of these cases, Kelly, Foster and Kirby JJ dealt with the claim for an extra week of annual leave for shift workers based on comparative justice ...(reads)... it should be available to shift workers rostered to work regularly on Sundays and holidays, day workers and other types of shift workers were not awarded access to the benefit.

PN237

Commissioner, we believe those principles would allow you in your judgment to actually vary from the standards of an annual leave test case as put up by Mr Kurczmanski to make a determination based on the merits of our application and in particular the circumstances of what is actually occurring in this part of the industry presently. I will go on to page 13, paragraph 54:

PN238

In the context of the silence of the agreement about the rates applicable to ordinary time working hours on a Saturday or Sunday are significant, in relation to conditions for shift workers ...(reads)... unless they are rostered over seven days for afternoon and/or night shifts on a regular basis.

PN239

We believe that - it's a bit presumptuous of myself to understand what the Justice was thinking at the time, but we read that he's accepted the employer's argument that with the change to the work patterns, that the employees weren't covered - no longer are covered by a continuous shift roster and therefore weren't entitled to the week's annual leave because of that.

PN240

THE COMMISSIONER: He goes further than that. He says unless they're rostered for seven days, over seven days, which gives an impression that it's meant to include Sundays.

PN241

MR FENNELL: That's right. One final decision to hand up, Commissioner. It's actually print M3222.

EXHIBIT #A4 DECISION, PRINT M3222

PN242

MR FENNELL: It was a dispute involving Transport Workers' of Australia v Airport Fuel Services. It was an appeal against a decision of Commissioner Blair about a decision to vary the award. The union complained the Commission had reduced five weeks annual leave as standard in contravention of safety in a test case without reference to Full Bench, found section 106 of the Act not complied. At page 6 of the decision, the third paragraph down:

PN243

It remains then to consider whether the variation adopted by Blair C would have the effect of reducing annual leave entitlements below the five week standard approved by the Full Bench as contended by Mr Marles ...(reads)... receive an actual period of five weeks' leave for their place of employment, whilst ensuring the employees receive no more or less than 175 hours paid annual leave.

PN244

The reason for producing that decision, Commissioner, was during that case there was actually never a debate about whether the five weeks' leave was the relevant amount of leave for the employees. It was actually about how the leave was to be calculated. Commissioner, that's all the exhibits I'd like to hand up, but what I hoped was that in my submission I have been able to show that there is provision for the Commission to determine a matter on its merits.

PN245

We hope that the Commissioner does accept our argument, but if the Commissioner feels that there does need to be an amount of Sundays noted for these employees to get the extra weeks' annual leave, we would hope that you would accept that the 13 Sundays that we offered the company during negotiations would be an acceptable alternative. Thank you.

PN246

THE COMMISSIONER: Just before you sit down, Mr Fennell, in most years, I've excluded leap years in that, where you have an extra weekend in a year, most years have 52 Sundays. The roster being proposed by the company while you were delegate, on your information, contains how many Sundays on an average?

PN247

MR FENNELL: It will only derive 13 as an average.

PN248

THE COMMISSIONER: Thank you. When you're ready, Mr Kurczmanski.

PN249

MR KURCZMANSKI: Thank you, Commissioner. Mr Fennell was kind enough to provide me advance notice of the documents he was going to refer to today, especially the authorities. I am actually probably not going to refer to those documents, because in my submission that I am going to summarise in a minute, I actually cover the points that he's raised before, this morning.

PN250

THE COMMISSIONER: Thank you.

PN251

MR KURCZMANSKI: It is our submission that the TWU have not provided sufficient justification to advance their claim that only 13 Sundays over a 12 month period should be required to be worked to enable employees to take the additional one week's annual leave. On average, an employee under the rosters that we've got, they would be working 17 Sundays. The company has come to this table with a compromised position on - - -

PN252

THE COMMISSIONER: If I can just stop you there, you're saying that the roster being proposed would cover - each employee would work 17 Sundays in a 12 month period?

PN253

MR KURCZMANSKI: Yes.

PN254

THE COMMISSIONER: Thank you.

PN255

MR KURCZMANSKI: The company has come to this table with a compromise position of the 20 Sundays which is far less than the threshold number of 34 Sundays and six public holidays as advanced in the authorities previously handed up to this Commission and as previously agreed to by the federal office of the Transport Workers' Union of Australia in Adelaide and Sydney agreements with the company.

PN256

It is our submission that the previous agreements with the TWU as negotiated in Adelaide and Sydney for exactly the same work as here in Melbourne is fundamental to the decision to be made by this Commission. To allow for a different set of employment conditions would severely disadvantage other employees in our business. There would be a flow-on effect to those other employees which would come at a considerable cost to the company as well.

PN257

Any amount of Sundays less than what is already agreed to in our other industrial agreements would also be against the principles agreed to by the Transport Workers' Union and the company at clause 4 of our Melbourne agreement. Mr Fennell has already pointed to that. Clause 4 of the agreement clearly provides for the parameters of the employment conditions should not disadvantage the companies against our competitors.

PN258

Mr Fennell mentioned during his submission that the work was taken - he referred you to our document which was R8 which was a comparison of all the other agreements and, yes, he pointed out that Toll were providing a 6.5 roster. Now, the details in their agreements are only as what is written in their agreements. The other agreements, the other examples that we've used have a specific requirement for metropolitan drivers of only 20 days, whereas for non-metropolitan drivers, they are allowed 25 days.

PN259

There is a distinction there and Linfox obviously as has already been pointed out in previous decision of this Commission that they applied for 20 Sundays before an additional week's leave is granted. In the Ship case in 1972 as referred to in the theatrical employees case, R3 of our submission, the Commission said:

PN260

We make our decision bearing in mind that the true seven day shift worker usually receives one week's additional leave in addition to the standard provision of three weeks in the Annual Holidays Act ...(reads)... as seven day shift workers, even though there could be further debate just on this issue alone.

PN261

Picking up the points that Mr Fennell has made reference to in his authorities that he's handed up in A3 and A4, the decision about - the discussion in those cases is about what constitutes continuous shift work and over a seven day period and morning, afternoon and night shifts. The company is coming to this Commission in this dispute saying that we actually agree that these workers are working continuous work shift work over a seven day period, but what we're saying is that while the definitions that are being referred to previously by myself and also by Mr Fennell really talk about a true seven day, 24 hour roster where a group of men work on different shifts over the 24 hour period.

PN262

Our workers are not doing that, but we are conceding as a result of the concessions that under the award where it talks about continuous work under the annual leave provisions that we're saying these workers are continuous workers. The employees receive a compensation in the way of a loading of 20 per cent on top of their normal hourly rate for working the Sunday am shift which has become an industry standard, in agreements between our competitors and their employees and between our company and our employees.

PN263

Mr Fennell pointed to our document again that referred to the 20 per cent and also the double time. There are some workers in our business that receive as I pointed out last time, Commissioner, that receive double time payment for working on Sunday and we have agreements just like every other - all of our competitors have a standard of 20 per cent loading on the common hourly rate for working on a roster that includes a Sunday day.

PN264

The Commissioner indicated that the parties to the dispute should look at continuous shift operations other than those advanced in the authorities handed up as part of our submission. There are a number of examples that continuous shift operations occur in manufacturing, health care, printing and other industries and Mr Fennell has pointed to the document that I was going to point to as well, sir, but when I talk about compromise positions, I am going to provide if I may, Commissioner, some examples of some compromise positions.

PN265

Examples of compromise positions can be observed in the Bridgestone case where reference was made to the roadhouse and motels case of a compromise position that for employees to qualify for the additional week's leave, they must work at least 50 per cent of the Saturdays, Sundays and holidays which the Commissioner has already pointed out earlier. In the Queensland Blue Care Enterprise Award 2004 and I do have an extract of that, Commissioner, that is a Queensland Commission document, QIRCOM98 of 7 June 2004.

EXHIBIT #R9 EXTRACT QUEENSLAND BLUE CARE

PN266

MR KURCZMANSKI: Thank you, Commissioner. In the Blue Care Enterprise Award, the compromise for attracting an additional weeks' leave is work on at least 20 rostered shifts on each of the three types of shifts, morning, afternoon and night shift which in total is 60 shifts, so there is a position that they come to a compromise position. In another example, in the Community and Social Services Western Australia Award 2002, again a copy for the Commission if I may hand that up, sir.

EXHIBIT #R10 COMMUNITY AND SOCIAL SERVICES WESTERN AUSTRALIA AWARD 2002

PN267

MR KURCZMANSKI: Thank you. Again, I've just provided extracts, I haven't provided the whole award, Commissioner. That is known as the Social and Community Services Western Australia Award 2002 and I am referring to clause 24 which is the annual leave provisions which is on page 2 of the document that I've handed up, sir, there is a compromise position where the number of days from one to five additional days' annual leave is accrued depending upon the number of Sundays worked in a qualifying period.

PN268

The scale ranges from seven to 31 or more Sundays worked. In one of our original authorities that we handed up, sir, the compromise position that the union was advancing in that position was that anything less than 34 down to a minimum number of seven employees should be entitled to the additional week's actual leave which was not accepted by the Full Bench. These examples may or may not be helpful to the Commission in determining the required number of Sundays to be worked for the entitlement to the additional week's annual leave in this dispute.

PN269

What the examples may add is that there is not a common ground across all industries and that compromise positions are found. Notwithstanding that, the authorities relied upon and the Commission clearly indicates that there is a threshold for the number of Sundays and public holidays and that the employees in these industries that work in a continuous process industry enjoy the additional week's annual leave after meeting a qualifying number of shifts.

PN270

The transport industry is clearly a continuous process industry and the work required by Woolworths of this company around Australia certainly fits that definition. Before I conclude, sir, for any decision that the Commission should hand down as a result of this dispute, it is our submission that the application for the fifth week of annual leave and the number of Sundays required to be worked to attract the additional entitlement should be phased in over the 12 month period from the beginning of the first pay period to commence on or after the date of the decision.

PN271

The number of Sundays worked should not be counted backwards and that the provision should start from the date of the decision and I refer the Commissioner to your own decision in the Linfox arrangement where similar provisions were made. The Commission in this dispute is asked to consider the submission that the company has accepted that the employees can be classed as seven day shift workers and that agreement with the Transport Workers' Union has already been reached about the number of Sundays that are required to be worked to enable an employee to have access to an additional week's leave.

PN272

That agreement is 20 Sundays or more per year. To now have the union advance that their position should be 13 Sundays has not been in our submission justified in their submission at all. We've heard no basis about why we should have 13 Sundays other than the workers have said that's what they would like. The agreement for the Transport Workers' Union and for our Melbourne based employees' conditions of employment in our submission sets out the ground rules.

PN273

By agreement, the company cannot be disadvantaged against our competitors and the work patterns in other states for similar work have already been established again by agreement with the union. Any granting of less than 20 Sundays would be a disadvantage. If the Commission pleases.

PN274

THE COMMISSIONER: Thank you. Anything further, Mr Fennell?

PN275

MR FENNELL: Yes, Commissioner. First I'd like to actually correct - I wrongly gave you the number of Sundays on the roster.

PN276

THE COMMISSIONER: Well, there was no argument when Mr Kurczmanski raised that, so I presumed he was correct.

PN277

MR FENNELL: I should point out that if an employee takes a four week period of annual leave in the year, leaves 48 weeks with one Sunday being worked in three, that leaves 16 Sundays in the 48 week period. If they don't have annual leave, then it would be 17.

PN278

MR KURCZMANSKI: The other issue, if I may - sorry.

PN279

THE COMMISSIONER: Yes, Mr Kurczmanski.

PN280

MR KURCZMANSKI: Just on that, I mean, that's, of course, if the employees take blocks of four weeks at a time which is not always the case.

PN281

THE COMMISSIONER: Yes, I'm very much aware of that. Yes, Mr Fennell.

PN282

MR FENNELL: I would just like to also before I finish up just point out Mr Kurczmanski in his R8 made mention of the Toll Liquids Transport Agreement and their five weeks' annual leave for a 6.5 roster, there is no requirement in the agreement with Toll Liquids to work any number of Sundays. They only have to be working for the 12 month period on the roster and also the Coots Transport Workers' Agreement, the reason that there is only 20 days' annual leave for the metropolitan drivers in their agreement is there only a six day shift in their operation.

PN283

There is a clause in the agreement that talks about the introduction of a seven day shift which hasn't been activated at this point in time. The union in its dealings with the company over this matter all along has been consistent in our discussions that we feel that being rostered over seven days a week with an entitlement to the week's annual leave, Mr Kurczmanski is pointing to agreements with the union in other states and their decisions have been accepted by the branches in those states to have the figure of 20 Sundays to be included in their agreements.

PN284

In Victoria, the union has been consistent in our dealings with all the companies in the contracting of oil and petroleum products and we've taken a consistent approach. The first change to that in Victoria was Linfox when they won the Mobil contract in 2001 and that gave rise to a change in Victoria. Mr Kurczmanski in the last couple of matters that he's handed up has actually also highlighted that it's in your prerogative to make an alternate decision and make a decision which you think the facts would support.

PN285

The last thing I would like to say is any decision that the Commission does make in this matter, we would be seeking for the calculation of any leave that you grant to be from the start of the operations. The employees since then have actually been working and accepting the reduced rate of pay, the common hourly rate plus 20 per cent, not the rate of pay plus double time and it would be a fair outcome for those employees that the counting of any number of Sundays, if that's how the Commission proceeds, is counted from their first start of employment.

PN286

THE COMMISSIONER: What was the date on which the roster first started, Mr Kurczmanski.

PN287

MR KURCZMANSKI: Sorry, my colleague was just talking to me. What was the question again, please?

PN288

THE COMMISSIONER: When did the roster first start?

PN289

MR KURCZMANSKI: August 2006.

PN290

THE COMMISSIONER: When did the negotiations start, Mr Fennell?

PN291

MR FENNELL: It must have been April or May, Commissioner.

PN292

THE COMMISSIONER: This year?

PN293

MR FENNELL: Last year, 2006.

PN294

THE COMMISSIONER: Do you have any disagreement or agreement with that, Mr Kurczmanski?

PN295

MR KURCZMANSKI: I actually refer to the date in my original submission. I think it was March 2006 and if I recall in my submissions, I think I said that the negotiations commenced with employees who weren't going to be working the Woolworths work, which I thought was significant in our submission to be taken into account by the Commissioner. The workers started work in August 2006 and then the debate that Mr Fennell and the company, or the Transport Workers' Union and the company has been having really has been with the senior delegate who was here last week who again is not part of that workforce, but represents those employees. We're not saying that it doesn't represent them, but most of the discussions since, we haven't been able to come to a conclusion on the number of Sundays, has been between Mr Fennell and myself.

PN296

THE COMMISSIONER: Have you anything else, gentlemen?

PN297

MR FENNELL: No, Commissioner.

PN298

MR KURCZMANSKI: If I can just address a couple of things that Mr Fennell has just mentioned in closing. He referred to the Linfox agreement. I have a copy with me. I am sorry, I don't have a copy for my friend, but it is the Transport Workers Coots Transport Group Pty Ltd Fuel Agreement 2006. Clause 6.1 of that agreement says:

PN299

In the event of Coots Transport Group Pty Ltd performing distribution of petroleum products on seven days, the rate of pay for this work performed on Sundays will be the relevant common hourly rate plus 20 per cent.

PN300

And it goes on further on. Mr Fennell says that they may not have started that work, but they certainly at the time of reaching this agreement with the employees, they certainly would have forecast that that work was soon to occur, if at all and if they were going to forecast that Sunday work, they would have forecast the additional week of annual leave for metropolitan drivers.

PN301

THE COMMISSIONER: What was the date of that?

PN302

MR KURCZMANSKI: The date is, it came into force on 24 March 2006 before Commissioner Mansfield.

PN303

THE COMMISSIONER: Thank you.

PN304

MR KURCZMANSKI: The other point that Mr Fennell raised was in regard to our agreements that we have in our Adelaide and Sydney divisions of this business. While Mr Fennell may have a view about state delegates or organisers making their own points of view, these agreements are actually federal agreements, they are signed by the federal secretary of the Transport Workers' Union and if they're going to tell me now that they're coming from different schools, we're going to have a bit of a problem with the Transport Workers'
Union - - -

PN305

THE COMMISSIONER: You don't recall that this Commissioner is the former state and federal official for the union.

PN306

MR KURCZMANSKI: Yes, I understand what Mr Fennell is saying and I understand what the Commissioner is saying.

PN307

THE COMMISSIONER: Yes, well, I am also saying he's not going to get away with it.

PN308

MR KURCZMANSKI: Thank you, sir, and that's in reply to Mr Fennell. Thank you.

PN309

THE COMMISSIONER: Thank you. Thank you, gentlemen. The Commission reserves its decision. I am going on leave on 7 May. I will try and render my decision before then. We're adjourned. Thank you.

<ADJOURNED INDEFINITELY [11.20AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 AWARD EXTRACT CLAUSE 25.1.5 PN187
EXHIBIT #A2 COMPARISON ON WAGE RATES PN190
EXHIBIT #A3 DECISION MUNRO J AND NATIONAL UNION OF WORKERS V BRIDGESTONE EARTHMOVER TYRES PTY LTD PN218
EXHIBIT #A4 DECISION, PRINT M3222 PN241
EXHIBIT #R9 EXTRACT QUEENSLAND BLUE CARE PN265
EXHIBIT #R10 COMMUNITY AND SOCIAL SERVICES WESTERN AUSTRALIA AWARD 2002 PN266