C2007/3659, Transcript of Proceedings [2007] AIRCTrans 575 (26 October 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17635-1

COMMISSIONER SMITH

C2007/3659

s.496(1) - Appl’n for order against industrial action (federal system).
Torrens Transit Services North Pty Ltd
and
Transport Workers’ Union of Australia
(C2007/3659)

ADELAIDE

3.33PM, THURSDAY, 11 OCTOBER 2007

MR S DOWD: May it please the Commission. I seek the Commission’s leave to appear with MR D LAMONT, who is the general manager for and on behalf of the two employer companies, Torrens Transit.

MR AM GALLACHER: If the Commission pleases, I appear on behalf of the Transport Workers Union of Australia.

THE COMMISSIONER: Do you have any objection to the application for leave?

MR GALLACHER: Well, I understand an objection to lawyers but given the matter afoot it’s probably frivolous for me to raise that.

THE COMMISSIONER: Thanks, Mr Gallacher. A general objection to lawyers but leave is granted in your case, Mr Dowd. Yes, Mr Dowd.

MR DOWD: I don’t know whether I should feel lucky, honoured or impotent. Thank you. Sir, you will have had an opportunity, I imagine, to have a look at the grounds set out in the application.

THE COMMISSIONER: Yes.

MR DOWD: By and large I think it’s tolerably safe to say they speak for themselves but what I’d like to do, if I can, is just give you some background first as to how this matter has arisen, if you like, to the point where the letters that are annexed to the application have come to have been written. To do that I would be useful if I was to hand to you, unless you already have it, a copy of the Torrens Transit and Transport Workers Union Certified Agreement 2005?

THE COMMISSIONER: Certified by Commissioner Dangerfield, as he then was.

MR DOWD: Certified by him, sir, that’s right.

THE COMMISSIONER: I have copy, thank you.

MR DOWD: Excellent, thank you. So if I could direct your attention first to the hours of employment clause which is clause 7. You will see in clause 7.1, sir, that the ordinary hours of work are said not to exceed - are mandated not to exceed 38 hours per week, Monday to Friday. Then you see clause 7.2 makes a reference to full-time drivers being guaranteed a minimum roster of 38 ordinary hours and two rostered overtime hours a week.

Clause 7.10 deals with the situation where broken shifts are concerned and briefly speaking, a broken shift would be, for instance, a shift that started in the morning, went for a period of time, had a break and then resumed again in the afternoon. I’m sorry that that probably seems trite, but I thought I should say it. Clause 7.11 talks about the break in a broken shift and 7.12 talks about the maximum spread of a broken shift being not more than 12 hours and 30 minutes. If I could just take you back to clause 7.3, sir, you will see the minimum hours of work on any full-time shift shall be six hours, part-time shift four hours.

What the company has set about doing is preparing some new rosters that affect drivers who work broken shifts. The outcome of the preparation of those rosters is to reduce the longest span of any shift so that it will not be greater than 11 and a half hours. If I can give this example: if a worker started at 6 am and had a span until 6.30 pm, then the company would pay him at double time from 4.30 to 6.30 pm. The companies have now put out rosters that bring back, if you like, by one hour the span of a shift so that instead of finishing at 6.30 pm the employee would finish at 5.30 pm. Instead of getting, in that example, two hours of double time, the employee would get one hour paid at double time.

I want to make this clear if I can, sir. The 38 hours a week ordinary time stays in place. What the parties to this agreement and the employees also refer to as the guaranteed two hours overtime stays in place, so that even if for some rostering reason a full-time employee only were to work 39 hours instead of 40 hours he or she would be paid for 40 hours. The changes that are referred to, which I’ll take you to in a minute in the letters annexed to the application, relate to the rostering of employees vis-à-vis broken shifts.

It’s not insignificant that I tell you that when this agreement, the current industrial instrument was bargained, the very question of penalty rates dependent on rosters was the subject of some debate and on my instructions, on 12 July 2005. This matter was discussed between the parties and it was pointed out that penalty rates could vary and vary enormously depending on the nature of the rosters. At the time, on my instructions, the company was suggesting that what would happen as a preference from employees would be that - sorry, to the benefit of employees, some employees, was that pays be aggregated. But the other bargaining parties to the agreement didn’t want that. They wanted to stay on the same penalty driven rosters and the company accepted that.

More recently, however, in January of this year, on two separate occasions employees have come to the company - and this is at a time when there has been a new round of Australian workplace agreements put out, because some of the employees work on agreements and some are covered by the instrument that’s before you. Employees have come to the company and said, on my instructions, “Look, 12 hours is a span longer than we want. We’d like to have lesser spans” and, in reaction to that - - -

THE COMMISSIONER: Span or working time?

MR DOWD: Span. So that instead of working from 6 am to 6.30 pm, will work a lesser period like to 5.30 pm.

THE COMMISSIONER: So it’s working time?

MR DOWD: Sorry, working time, you’re quite right. I apologise.

THE COMMISSIONER: That’s all right.

MR DOWD: Now you can see why Mr Gallacher didn’t object to me. This is a matter that has been known to the union prior to January and from January because there is a joint committee made up of the union, AWA employees and the management that have been discussing this issue for some time and discussing the fact that a lesser working time has been wanted.

So we have been talking about this from July 2005 on and off and more recently, 10 and 25 January 2007. I thought it important to tell you that so that you would have some context in which to consider the two letters that are annexed to the application. The two letters really are not terrifically different in themselves. You will see that attachment B, being the letter 9 October 2007, really is a call by the union - I’m looking at paragraph 3 - on all drivers to dedicate Monday, Tuesday, Wednesday coming to - and now it said “spend more quality time with your families” but the way the vehicle to achieve that is clear in the next paragraph. To do that the union is calling on all operators to refuse to do voluntary overtime as requested by the company and spend that time with their family.

On my instructions it’s not quite right to describe this overtime as voluntary overtime but it’s more apposite to describe it in this way, that to continue to have the businesses run, drivers volunteer to do additional overtime. And I’ll just explain what I mean by that. We have the 38 hours ordinary time that’s referred to in the agreement. We have what we call - or the agreement calls a guaranteed two hours of overtime. In addition to that, the agreement has special clauses about weekends, overtime on Saturday and Sunday, volunteering not mandatory, quarantine that too, sir.

So in addition to those matters, to keep the businesses running the businesses rely on employees volunteering to do additional overtime daily. We’re talking about businesses that, on my instructions, employ something in the order of 1,000 people and that between 50 - depending on the need - between 50 and 100 people a day volunteer to do additional overtime. The position is that without that process of volunteering to do the additional overtime, the running of the business will be severely hampered. There is just not going to be enough people to drive buses. That’s all there is to it.

Now, Mr Lamont, will give evidence, if we get to that, to say that he’s been the general manager of this company for seven and a half years, or seven and a bit years, and prior to that he walked for another bus company and he will say, “Look, this is the way it has always been and all the parties and employees know that that is so”. That is, for these businesses to function there must be this volunteering to do overtime. It is expected and anticipated. And so what we say is that if employees are encouraged not to volunteer, and they take up that call to arms, one bad turn deserving another, as the letter says, then that satisfies the definition in section 420, we say, of “industrial action” because we say that what you will then have is a variation that fits into the definition which is:

The performance of work by an employee in a manner different from that in which it is customarily performed.

Mr Lamont will give evidence to say this business would not have been able to run in the way it has run for the last seven and - well, these businesses, sorry, for the last seven and a half years if it wasn’t the case that customarily employees volunteered to do the overtime that they’re being encouraged not to take up. So essentially our case is we meet all of the other criteria for an order, there can be no argument about bargaining periods and the giving of notice. There can be no argument, we say, clearly about the fact that the agreement is still in its nominal life. We say that if this is held to be industrial action, if you’re satisfied that this is industrial action, then the action is unprotected action and the order ought to flow.

The letters in question go on in their penultimate paragraph to encourage - to invite recipients to “encourage all your co-workers to get involved in the TWU family day campaign and say no to voluntary overtime” and again, what is accountability to you is that it’s not actually a call to refuse, it’s a call not to volunteer to do the overtime, because that’s the nature of how the process works.

So, unless you have questions of me or you want to ask my friends anything, it would be my proposal to call Mr Lamont at this stage to give some evidence.

THE COMMISSIONER: Thank you. Mr Gallacher, do you want to make any submissions at this stage or do you want to hear the evidence of Mr Lamont?

MR GALLACHER: Commissioner, I think it may be pertinent if I just make an initial submission.

THE COMMISSIONER: Sure.

MR GALLACHER: I’m not sure that the evidence will bring out anything we don’t already know.

THE COMMISSIONER: All right.

MR GALLACHER: Commissioner, if I can just sort of give you a bit of background on the dispute. We have a letter which we’d like to table dated 19 February 2007. It basically just goes to the heart of the problem, if you like, that we have had some difficulties with the rosters being posted. We have another letter dated 9 October 2007.

EXHIBIT #G1 LETTER ADDRESSED TO MR NEIL SMITH DATED 19/02/2007

MR GALLACHER: We have another letter dated 9 October which we would like to table as well. Just by way of explanation we have had a continual, in other view, failing on the company to post rosters in conformity of the agreement, 14 days in advance, clearly setting out the requirements that the parties agreed to. There were some discussions earlier this year. Mr Lamont undertook to comply with the agreement and we would say that that hasn’t been honoured.

EXHIBIT #G2 LETTER TO MR LAMONT DATED 09/10/2007

THE COMMISSIONER: Sorry, yes?

MR GALLACHER: So, Commissioner, our organising in the field end on ..... has been fairly continuing concern from members as to the operation of the agreement in its proper way. My friend has taken you to paragraph 7 of the enterprise agreement, or at least clause 7. I would like to make a couple of points in respect of that clause as well, in particular - - -

THE COMMISSIONER: Can I just ask, please, for a moment, the substance of these letters, of 19 February and 9 October - I haven’t had a chance to read this one yet - but the substance of those, you’re stating that there hasn’t been compliance with clause 7.22 of the agreement?

MR GALLACHER: That’s correct. And it’s been a matter of some six months sort of discussion and concern. It sort of get us to the heart of the problem, if you like, that if the rosters are not posted with the appropriate notice people can’t make the arrangements that they would normally make in respect to their family in the home requirements and those sorts of things.

But I think particularly in clause 7 there are a number of very, very pertinent clauses and this pre-reform document was the subject of extensive negotiation and we would say that we dealt with almost every possible circumstance that could possibly arise in the operation of this business and we’re, in my view, very generous in respect to the treatment of the employer’s contractual requirements, in particular clause 7.25, which is “Rostered weekday overtime”. We accept the two hours of compulsory overtime agreed between the parties so there will always be two hours of overtime work by the workforce.

In addition to that, rostered weekday overtime is compulsory in this agreement. So a guarantee of working two hours overtime, we have a guarantee that anything that is rostered weekday will be worked. In addition to that, we have rostered weekend and public holiday overtime. Standard weekend work should be rostered for ever second week. We have a guarantee that every Saturday will be worked. So the workforce has a guarantee to work all rostered overtime Monday to Friday in addition to the two hours that we guarantee, and in addition to that we will do a compulsory Saturday.

So I think it’s really pertinent to note that the workforce has honoured that, in these circumstances, despite the provocation, in our view, that the rosters are not posted with the appropriate notice. They have honoured the agreement in its entirety. What we’re talking about is additional to compulsory week, Monday to Friday overtime, the compulsory Saturday overtime system, a guarantee that we’ll do two hours anyway, even if we’re not rostered Monday to Friday or Saturday. We’re now talking about the business having to run on the goodwill of the employees volunteering over and above that in the face of their rosters not being posted 14 days in advance and, in our view, a computer driven model which mercilessly tries to reduce any penalty or any advantageous system of rostering for the workforce.

We have people on AWAs who on different conditions to people on the enterprise agreement. The employer looks for the cheapest model, as they would normally, in efficiency terms. That is not conducive to harmony in the depots. People are on AWAs, people are on this enterprise agreement, the company is always trying to balance the most efficient way of working people. What it’s done has caused tremendous concern in the workforce and it’s really impacted on the running of the business. People are less cooperative than they have been over the last number of years.

THE COMMISSIONER: I’m sorry, I see where the weekend overtime is dealt with. Can you point me to the clause that mandates the working of overtime on a weekday?

MR GALLACHER: On the weekday?

THE COMMISSIONER: On a weekday, yes.

MR GALLACHER: We’ll go 7.25(b), “Rostered weekday overtime is compulsory”.

THE COMMISSIONER: I see. What do you understand by the term “overtime” there? What does that mean?

MR GALLACHER: Well, it would be rostered - it would be a shift - - -

THE COMMISSIONER: Can it two hours, three hours, four hours, five hours?

MR GALLACHER: Exactly. What happens with the - it’s my understanding of the computer driven models that puts shifts together, they will include a component of ordinary time plus any hours of overtime, whichever is the most efficient model for the company. If it came up you were rostered the 9.25 hours a week that week and some of that was overtime that’s your shift, you do it. There’s no discretion about that.

THE COMMISSIONER: And if you’re rostered for 10 hours, the same thing.

MR GALLACHER: You do that.

THE COMMISSIONER: If you’re rostered for 12 hours, the same thing?

MR GALLACHER: That’s right. So I think we’re in - and I understand my learned friend’s sort of submission in respect to no bargaining period. In a lot of cases this would be a straightforward case of unprotected action but in this environment where we have a guarantee we’ll do two hours of overtime, we have a guarantee that we’ll do compulsory overtime Monday to Friday, we have a guarantee that we’ll do Saturday overtime, I’m not sure that we can construe this as unprotected action when people do not volunteer over and above that because they have some strong views about the way the company is operating, AWAs versus an enterprise agreement, the way that they’re not complying with the agreement in terms of appropriate notice periods of 14 days for the rosters.

Mr Lamont may say that the rosters were up recently but our submission in respect to that would be they were incomplete. They didn’t detail the actual shifts that were intended. There is a punitive roster at the moment, in the view of some of our members. They see a diminishment in their take-home pay and they have said, “Well, our cooperation is not as complete as it’s always been. We’ll honour our agreement, and we’ll do our overtime Monday to Friday, Saturdays, but we don’t feel like volunteering”.

I don’t think there’s much more I can add in respect to that. I’d be really interested if someone can show us the way forward here because on one hand very clearly we have an agreement, our friends here are saying it’s unprotected action. We’re looking for some guidance in respect to that because we don’t believe it is unprotected because we’re honouring the overtime commitments which, to my knowledge, are not in any other agreements that the TWU has signed off. We actually went out of our way here to make sure this employer could meet its contractual requirements under all circumstances.

Unfortunately there has been a parting of the ways in terms of cooperation on the additional overtime but we’d actually seek some guidance from the Commission in respect to whether this is unprotected action. Thank you.

THE COMMISSIONER: Well, Mr Lamont, we might just defer for one moment the evidentiary side of the matter but what do you say about that when the company has the capacity to roster the hours it wants people to work?

MR DOWD: Sir, do you mean to be addressing Mr Lamont or me?

THE COMMISSIONER: I’m sorry, you, Mr Dowd.

MR DOWD: It’s all right, it might be the best course - - -

THE COMMISSIONER: No, no, I’m sorry. I won’t put him on the spot just yet.

MR DOWD: No, that’s right. Yes, the company does have a capacity to roster hours. Can I just go back a step? Clearly, although Mr Gallacher says he’s been generous in the bargain just let me state the obvious. It’s a bargain so there’s been something in it for everybody otherwise it wouldn’t have been met. I take that no further.

THE COMMISSIONER: So you put the same generosity back to him, do you?

MR DOWD: No, I realistically say if two people bargain there’s giving and taking and you get an - somebody came to the Commission and said, “We’re happy with this”.

THE COMMISSIONER: I was being light hearted.

MR DOWD: No, that’s all right.

THE COMMISSIONER: Thank you.

MR DOWD: You can afford to be, I can’t.

THE COMMISSIONER: Yes.

MR DOWD: Yes, the company can mandate a period of overtime on weekdays. The company has been able to do that prior to this bargain. That’s not what we’re about here. That’s not the concern here. What the concern is that even over and above that the parties know and the employees know that the company needs volunteers to do additional overtime, notwithstanding the fact that it can mandate the two hours or three hours. It can’t mandate - it’s limited on how much it can mandate. The company says - let’s take this example, if the - - -

THE COMMISSIONER: Up to the spread hours it can mandate.

MR DOWD: Yes.

THE COMMISSIONER: Well, can it? What’s the limit on its mandating of overtime?

MR DOWD: Well, it can’t - - -

THE COMMISSIONER: Do you have a reasonable overtime provision in the agreement?

MR DOWD: Twelve and a half hours in a day, is it not? Yes, 10 hours work and 12 and a half hour day.

MR GALLACHER: If the Commission pleases, it may be that the limitation on driving hours is the only restriction.

MR DOWD: Yes.

THE COMMISSIONER: I see.

MR DOWD: And that’s found somewhere in clause 7. It’s up at the top. So the company can, to some extent, mandate time but what’s significant in this is perhaps best appreciated, I say, if looked at this way: if no employees were to volunteer to do the voluntary overtime as opposed to the mandated two hours or anything else put in a shift, overtime, the company acknowledges that it can’t turn around and say, “Well, you have to do it”. It will be shorthanded, it will be short staffed. All right? So if - - -

THE COMMISSIONER: Sorry, just so that I fully appreciate the issue, you’re talking about circumstances that are beyond prediction because, as I understand the argument that was put to me, it was that provided you gave the requisite 14 days’ notice you could mandate a working day that included overtime.

MR DOWD: We can mandate a working day which includes overtime. Just excuse me, sir. It’s as I thought, we can roster 10 hours over a 12 and a half hour day. What we’re looking for is volunteers to cover other things, employees who don’t turn up for work, bus breakdowns where you have to get another bus out quickly, somebody who has had trouble on a bus run. I mean, these are the day-to-day issues in running a bus company and there’s nothing unique about them, they happen all the time. They happen daily.

So what we’re looking for is people who will volunteer and say, “All right, well, if there’s a problem on such and such a run, I’m happy to put my hand up and do some more work”. And on my instructions there’s something in the order of five to ten per cent of the workforce, 50 to 100 people a day who do that.

THE COMMISSIONER: When a volunteer is sought?

MR DOWD: Called for over the radio or I imagine contacted on mobile telephones because those details are available.

THE COMMISSIONER: So it’s during the day?

MR DOWD: So there would be a broadcast out saying, “We’re looking for volunteers to do work during the day” and people would either volunteer or they would not.

THE COMMISSIONER: Yes, I see.

MR DOWD: Now, that’s a very different circumstance from the - just let me go back a step. If no one volunteered then that would be that. But what these letters that are annexed to the agreement do is call people to rally to not volunteering or they say not accepting overtime. It’s an organised approach to ensuring that when calls go out for help - and I want to stress this - the anticipated ordinary customary calls that happen daily and have been for years in this business, these businesses, I’m not talking about other bus companies although I’m told that’s the case too but ignore that - that when those ordinary calls go out for help what we have in these letters is an invitation to rally to arms, we say, and that the union is calling on all drivers, rather than as Mr Gallacher puts it, drivers don’t want to do this because they have been already the subject of oppressive rosters.

But that’s not what these letters are saying. The letters are saying the unions are calling on all drivers to refuse to do, and that’s why I made the point it’s not a matter of refusing to do. The situation is employees are called to put their hand up and say, “Yes, I want to do this and I want to make the extra money doing it”, when the call is broadcast, when the contact is made.

THE COMMISSIONER: What I was trying to understand, and I think from your answer I do understand it - let me go over it, was that whether or not you were using a volunteer system of overtime in place of a regular roster system or whether or not the volunteering was as a consequence of unforeseen circumstances on a daily basis. If you had a regular use of voluntary overtime in place of properly rostered work, that might put a different complexion on it but I thought I understood you to say that this really arises from unforeseen circumstances during a day which cannot be predicted for the terms of a roster.

MR DOWD: And that’s correct but they’re unforeseen but not anticipated. We don’t know the actual event that’s going to occur.

THE COMMISSIONER: But you know it’s going to happen.

MR DOWD: But you know events will occur. You don’t know how many events are going to occur. But what we do know is that something like 50 to 100 employees volunteer and get and do additional overtime daily, something in the order of five to ten per cent of our workforce.

THE COMMISSIONER: I see.

MR DOWD: And it’s for that reason, that’s why I made reference to section 420 saying that if the employees accept and act on the suggestions made in the letters, that is, not to volunteer for work then what we sat occurs is that you have the performance of work by an employee or group of employees in a manner different from that in which it is customarily performed. That’s the importance of the fact that day in, day out this group of five to ten per cent of people volunteer to do this overtime and that’s - - -

THE COMMISSIONER: Can I ask you a technical question then?

MR DOWD: Yes.

THE COMMISSIONER: In terms of the order that you seek to have made, how does the order distinguish between someone who might be a regular volunteer for overtime and someone who you might approach and say, “I’d like you to volunteer and to the extent you don’t you’ll be engaged in industrial action”.

MR DOWD: Just let me take an instruction on that, will you, please.

THE COMMISSIONER: Sure.

MR DOWD: There are two aspects to how the process operates. Firstly, the call may be at large rather than to an individual. There may be a call for people and none may come forward. That would be unusual, but none may come forward.

THE COMMISSIONER: But it wouldn’t be unusual that you would have a core group of employees who don’t volunteer for overtime, I would imagine.

MR DOWD: I would think there would be a group that - yes, it’s my point that we’re dealing with the company - - -

THE COMMISSIONER: For whatever family responsibilities or - - -

MR DOWD: For whatever reason.

THE COMMISSIONER: - - - whatever, they just don’t volunteer.

MR DOWD: “I don’t want to.”

THE COMMISSIONER: No.

MR DOWD: “I don’t have to give a reason.” Yes. And then of course there are times when you telephone an individual and say, “Do you want to do the work or don’t you?” I’m told and sometimes the individual says, “No, I don’t want to do the work” and that’s that, that’s accepted. But your point is, well, then how do I differentiate between those people if I’m invited to make an order, and I guess what I - - -

THE COMMISSIONER: If I can take the two extremes. One extreme to assume for the purposes of your submissions a person for the last two years who has not only volunteered but has worked voluntary overtime and the other extreme we’ll discuss is somebody who never works overtime, and then you have a whole continuum in between.

MR DOWD: Yes.

THE COMMISSIONER: Some who say, “Yes, it suits me today but it doesn’t suit me tomorrow”, or whatever.

MR DOWD: And you can’t discern between them, it seems to me, with any order.

THE COMMISSIONER: Yes. Well, I’m interested, to use the vernacular, how do you pen the person who’s involved in industrial action?

MR DOWD: What you’re really saying is how you identify the one from the other.

THE COMMISSIONER: Yes. What I might do, depending upon your instructions, Mr Dowd, is that it might be something you might like to consider for a few minutes with your client. I’m not putting it forward as a recommendation but if the parties wanted a conference to discuss this issue I’m happy to engage in such a conference to see whether I could assist you but I’m minded that the thrust of the legislation, which I’m compelled to apply, tells me to hear your matter and dispose of it quickly. So I don’t offer that as a delay or anything like that.

MR DOWD: No, I understand that. No, indeed, thank you, it could be quite helpful.

THE COMMISSIONER: I’ll adjourn for 10 minutes.

MR DOWD: Thank you.

<SHORT ADJOURNMENT [4.07PM]
<RESUMED [4.29PM]

THE COMMISSIONER: Mr Dowd.

MR DOWD: Thank you, sir. Thank you for that opportunity. We were happy and willing to have a conference but our friends didn’t want one, and that’s fine, it takes two to confer, so here we are back in front of you with me addressing your issue. What I say is that from my client’s perspective, it would be enough if the order is made - if the order suggested, sorry, in the draft minutes of order were made because the issue for us is far more the fact that an organisation of the ilk of the TWU, with the standing of the TWU, is making a call upon the operators to refuse to do something.

The orders that we have proposed simply - well, essentially, require and mainly require that that organisation publish the order set out in paragraph 4.1. We accept that given the nature of the description, that is, whether one volunteers is voluntary or not, we will not be able to determine if an individual were asked on Monday whether they would volunteer and they said no, whether or not they were taking action.

But what we do know already on the ground is that our employees are contacting us - contacting Mr Lamont, contacting his managers and saying, “We don’t know how to react to this letter. What does it mean? What do we do?” On my instructions some of them are hostile because they want to volunteer for overtime but they feel, and quite understandably, they feel the shadow, if you like, of a not insignificant industrial body asking them to do something else.

So I’m in the position now where I still press for the orders subject - I’m not sure, sir, whether you want to hear evidence from Mr Lamont. There doesn’t seem to be a lot of dispute from the union’s side about what I have said about the way in which overtime is employed, this voluntary overtime is employed. But subject to whether or not you want to hear evidence from Mr Lamont then my instructions are to press for the orders and I say that the orders are not insignificant and will stop action because the imprimatur of the union will no longer be present as it is in these letters, calling or rallying to arms the people who are currently employed, in fact, calling on them to refuse to do overtime. We say it’s a matter of personal choice as it always has been, and that’s the way it should be.

THE COMMISSIONER: Do you wish the applicant to put evidence on this at all?

MR GALLACHER: If we could - not so much evidence - well, I’d like to just expand on my initial submission just to give the Commission a bit of better background briefing on what exactly is happening here.

THE COMMISSIONER: Sure.

MR GALLACHER: Commissioner, the TWU has membership of round about 500 people in Torrens Transit. There are membership who are on Australian workplace agreements, there are membership who are covered by an enterprise agreement. We have sent out 162 letters in respect to this issue and that is the area that people who have made representation to us about having a particular problem. There is no problem at Port Adelaide, Mile End, Newton, Camden Park - those are specific depots.

THE COMMISSIONER: There’s Port Adelaide, yes.

MR GALLACHER: Mile End, Newton, Camden Park.

THE COMMISSIONER: Yes.

MR GALLACHER: And Hendon depot. So add more confusion, if you like, to the situation, Commissioner, not only do we have this historical thing about people who have traditionally volunteered and people who haven’t volunteered, we have no problem with them in the significant area of the operation. We have people that are covered by an Australian workplace agreement who have no - you know, this doesn’t apply to them. This applies to the people who have the enterprise agreement and they have made the commitments about compulsory weekday overtime and compulsory Saturday overtime.

We have a longstanding tradition in this industry of having enough people on hand to deal with the eventualities that the employers talk about but if you have 1,000 people then, you know, if the flu season hits you’re generally going to have a few people off sick - a longstanding tradition in this industry that they have spare drivers to pick up the operation as it needs to be operated. What we’re saying is that the company has sharpened its pencil there as well as in the rostering areas and is running as lean and mean as they can, as they have the opportunity to do so, but if cooperation of 160 people is not forthcoming then the operation, in their view, falls over.

My view is that even out of the 160 that we have sent a letter to that it’s probably going to be a disproportionate result there. I mean, we don’t know if 162 people are not going to volunteer for overtime or not. We have just had representation from a large number of people in a couple of depots saying, “Can we do this?” And our view is I think they can.

If the Commission is of a mind to give orders then I think it also is beholden on the Commission to tell us on what basis and how we can communicate that back to a workforce that arguably is the most flexible and efficient and has the most generous commitment to weekday and weekend overtime that is possible in an agreement and they are honouring that agreement in its entirety. There is no allegation that the overtime isn’t being worked Monday to Friday or Saturdays.

This is additional overtime on top of that and we’d be very, very keen if someone had a view that orders were to be granted in this case that - how do we communicate that to people who, during the school holidays, as it now, who may have family requirements, who may have grandchildren or children or - you know, just personal requirements to look after their family. We’d be very, very keen if there was a mind to give orders, how do we communicate that back to ordinary working people who, in my view, have been very generous in their commitment to overtime and working patterns.

THE COMMISSIONER: Thank you. Anything you want to add?

MR DOWD: Yes, just a couple of things. Firstly, I don’t understand what my friend Mr Gallacher said when he said there’s no problem for people on AWAs because this doesn’t apply to them. I don’t know what the “this” is but just let me say clearly, if people who are members of the union have received the letters of either the 9th or 10th, whether they’re on an AWA or not, the call to arms does apply to them; that is, they will see it as their union saying to them, “We’re asking you to refuse to do overtime”.

I also don’t quite see where my friend is going with the comment about rostering being lean and mean but let me just say this to the Commission: it seems that Mr Gallacher is saying the company has sharpened its pencil to save money. Whether or not that’s true, it’s beside the point because what the company has done is within the ambit of the agreement reached between the union, the employees and the company. There’s no suggestion it’s going outside of that ambit.

He goes on to say, “And we don’t know if 162 people won’t volunteer” and what that clearly tells us, even from his own words, it must mean that exactly what the letters say, that is, it’s the union’s intention that 162 people won’t volunteer. That’s exactly what the correspondence is about.

And as to how one communicates the orders, I don’t quite comprehend that either. I mean, the union has managed to send out yesterday at 6.30 or 6.20 by post, on my instructions, and my friend Mr Gallacher can correct me, these letters, they can send out another bund of letters either by courier or by post, and they’ll be received now on Monday, but of course there are noticeboards at all worksites where, if you were minded to make an order in the terms that we have annexed, it could also be ordered that this notice be put up on noticeboards at all worksites.

We fear that the fact that the letter has been sent to 162 people, we don’t know who they are or where they are, but there’s not much doubt that others in our employ will hear of the letter because we anticipate communication between our employees and so we fear a contagion of this correspondence going outside of the pool that Mr Gallacher refers to and that’s why we have drafted the order in the terms we have and that’s why, if you’re prepared to make the order we seek then having that order posted on all noticeboards at all worksites would be, in our respectful submission,, significant.

THE COMMISSIONER: What do you say is the Commission’s jurisdiction to issue such an order to a person who is on an AWA?

MR DOWD: What is the jurisdiction to issue the - all right.

THE COMMISSIONER: Yes.

MR DOWD: Yes, I don’t think the Commission can do that. I don’t think you have jurisdiction. I accept that point. And so therefore - - -

THE COMMISSIONER: We’re starting to get into the realm of the vibe, aren’t we?

MR DOWD: The realm of the - - -

THE COMMISSIONER: The vibe.

MR DOWD: Very much. Well, let’s be realistic about it. Mr Gallacher says he wants to be. The vibe is that we don’t know what the reaction to this is going to be Monday, Tuesday, Wednesday. We have an anticipation of what it might be given that a number of these people are and presumably have been for a long time members of a good and solid union. So one wouldn’t expect they’re going to ignore the union. That’s the vibe and that’s the vibe we’re dealing with.

THE COMMISSIONER: Yes.

MR DOWD: The importance of that vibe of course is highlighted when you look at the fact that what we need these volunteers for is to cover anticipated but not identifiable shortcomings. So, yes, we have known we have been in the realm of the vibe for some time.

THE COMMISSIONER: Yes. I must thank the leader of the Panel for asking me to do the file.

MR DOWD: Well, it’s at least not cut and dried.

THE COMMISSIONER: Indeed.

MR DOWD: So perhaps, because of the very good point you make, that is the ability to direct this order to people on AWAs, perhaps we’re better to recast our shadow by seeking that the order be directed because we’re in the realm of the vibe, to the union and its officials and include that no further action be organised because you clearly can direct the order to the union and its officials and their imprimatur, frankly, is almost certainly what’s going to be important in this matter.

THE COMMISSIONER: All right. Thank you for your submissions. I’m not going to announce a decision now. I’m going to think about it. I think the Act gives me 48 hours and, in any event, if I’m unable to announce a decision tomorrow afternoon that should be sufficient time for information to go out if I’m with you - if I’m not with you. Or if I’m with you I have to pick up what’s been asked of me of the TWU to explain precisely why I’m with you and how they tell their members.

Thank you for submissions. I’ll reserve and adjourn.

<ADJOURNED ACCORDINGLY [4.41PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #G1 LETTER ADDRESSED TO MR NEIL SMITH DATED 19/02/2007 PN37
EXHIBIT #G2 LETTER TO MR LAMONT DATED 09/10/2007 PN38