C2008/2346, Transcript of Proceedings [2008] AIRCTrans 143 (31 March 2008)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 18281-1

COMMISSIONER DEEGAN

C2008/2346

s.496(1) - Appl’n for order against industrial action (federal system).
TNT Australia Pty Ltd
and
Transport Workers’ Union of Australia-New South Wales Branch
(C2008/2346)

CANBERRA

3.00PM, TUESDAY, 18 MARCH 2008

PN1

MR B MACKENZIE: I appear for TNT Australia Pty Limited and I am the National Manager Industrial Relations. I have with me MR D CHARLESWORTH, Regional Director of the Central Region.

PN2

MR K PINKUS: I appear for the Transport Workers Union ACT Sub Branch, and with me is MR B SWEENEY, an organiser with the Transport Workers Union.

PN3

THE COMMISSIONER: Thank you. Mr Mackenzie?

PN4

MR MACKENZIE: Thank you, Commissioner. Thank you for listening to this matter so quickly today. Commissioner, this is an application under Section 496 of the Workplace Relations Act, and I read and rely on the application filed in the Commission today.

PN5

THE COMMISSIONER: All right. Do you want to give me a bit more information, if any, available to you, Mr Mackenzie?

PN6

MR MACKENZIE: Yes, I will, Commissioner.

PN7

THE COMMISSIONER: If the matter is going much further I’m obviously going to need some evidence, but just give me a little bit of background as to what happened and how many people we’re talking about.

PN8

MR MACKENZIE: Yes, Commissioner. Effective from start of shift this morning the drivers and dockhands that are engaged at the Canberra depot had initially an unauthorised stop work meeting. That unauthorised stop work meeting was in direct response to the company terminating an operations manager that was employed at the depot.

PN9

THE COMMISSIONER: When did that happen, Mr Mackenzie?

PN10

MR MACKENZIE: That happened yesterday, Commissioner. Subsequent to the unauthorised stop work meeting the employees, both drivers and dockhands, elected to go on strike as a form of protest and it is our understanding, that was our understanding at that point, Commissioner, that those drivers and dockhands would be off for the full shift today and potentially they would return to their normal duties tomorrow morning. The depot is covered by a national collective union agreement which is in time, Commissioner.

PN11

THE COMMISSIONER: Right. That national agreement is an over arching agreement that also includes current agreements as well isn't it?

PN12

MR MACKENZIE: Yes, Commissioner.

PN13

THE COMMISSIONER: So the depot is actually covered by another agreement as well as the national one?

PN14

MR MACKENZIE: That’s correct, Commissioner. That over arching agreement is referred to basically as a heads of agreement. That’s a national agreement that covers all drivers and dockhands engaged in our business in Australia except the Western Australian branch, Commissioner. That agreement was concluded through negotiations at Christmas time of this year and it was lodged with the Workplace Authority on 13.2.2008 and, Commissioner, I have a copy of that declaration receipt and the agreement if it helps the Commission.

PN15

THE COMMISSIONER: I think it’s already been faxed, Mr Mackenzie, and I’m prepared to just work off that document. I’m sure Mr Pinkus has got a copy.

PN16

MR PINKUS: Yes, Commissioner.

PN17

THE COMMISSIONER: So that was the date, 13 February?

PN18

MR MACKENZIE: 13 February, Commissioner.

PN19

THE COMMISSIONER: The declaration receipt is not very forthcoming as to the actual day it was received, which is the date of effect unfortunately. But never mind. So 13 February. All right. And can you tell me, Mr Mackenzie, this unauthorised stop work meeting that took place, was there somebody from the TWU there or was it - - -

PN20

MR MACKENZIE: Yes, Commissioner. Mr Pinkus was actually on site at the time.

PN21

THE COMMISSIONER: All right. Did you have any prior notification at all, Mr Mackenzie, that this might be about to happen?

PN22

MR MACKENZIE: No, Commissioner, albeit I must say that Mr Charlesworth visited the depot on the day before and had a discussion with Mr Pinkus and the delegates.

PN23

THE COMMISSIONER: On Sunday?

PN24

MR PINKUS: Monday, sorry.

PN25

THE COMMISSIONER: What’s today, Tuesday?

PN26

MR PINKUS: Tuesday.

PN27

THE COMMISSIONER: So yesterday? Right,.

PN28

MR MACKENZIE: Sorry, Commissioner.

PN29

THE COMMISSIONER: You’re right. So Mr Charlesworth had a discussion with Mr Pinkus yesterday?

PN30

MR MACKENZIE: Mr Pinkus and the delegates on site yesterday in relation to the termination of the operations manager. Of course, Commissioner, you’ll appreciate that that operations manager is not covered by the site agreement. It’s a management position and it was inappropriate for Mr Charlesworth to go into too much detail in terms of the termination of Mr Pinkus, however I do understand that Mr Charlesworth pointed out to both Mr Pinkus and the delegates that he expected that if there was an issue with the termination of the manager there was firstly a disputes procedure that we expect the people to abide by, and of course Mr Pinkus has right of application to this Commission for unfair termination application if he feels fit. And we expected that work would continue normally whilst those processes were followed.

PN31

THE COMMISSIONER: How many people are we talking about on strike at the moment, Mr Mackenzie? Are they all TWU? I’m not asking are they all members of the TWU, but does any other union have any coverage?

PN32

MR MACKENZIE: No, Commissioner. They all have coverage through the TWU, and I understand there’s approximately 25 drivers and dockhands engaged at the depot on the basis of the day shift. We also run a pm shift which starts approximately at midnight tonight, Commissioner.

PN33

THE COMMISSIONER: At midnight tonight?

PN34

MR MACKENZIE: Yes.

PN35

THE COMMISSIONER: I see. All right. Okay, Mr Mackenzie, thank you. Did you want to - yes.

PN36

MR MACKENZIE: Yes, Commissioner. I’d like to seek to call Mr David Charlesworth.

PN37

THE COMMISSIONER: Well, before we do that I’d first like to hear something from Mr Pinkus to see where we’re going, and then I might go off the record for a short conference to see if we can’t sort this out.

PN38

MR MACKENZIE: Thank you, Commissioner.

PN39

THE COMMISSIONER: Mr Pinkus?

PN40

MR PINKUS: Commissioner, at the TNT Canberra depot the membership there are back at work, have been since 11 o’clock or since 10 o’clock this morning. There’s no further action planned, there is no action currently happening, there is no industrial action threatened or impending or probable.

PN41

THE COMMISSIONER: I see. Mr Mackenzie?

PN42

MR MACKENZIE: Well, Commissioner, that’s not quite right. In fact there are from, I think it was 10 o’clock this morning, there were efforts to see whether the drivers would return to work, and in fact a number of drivers, in fact the majority of drivers did return to work, however there are still at least two drivers that are, as far as we are concerned, taking industrial action, Commissioner.

PN43

THE COMMISSIONER: Two drivers?

PN44

MR MACKENZIE: Two drivers.

PN45

THE COMMISSIONER: Mr Pinkus?

PN46

MR PINKUS: I was aware at half past 11 this morning that – sorry, half past 10 this morning, that two drivers had not been contacted. Every effort was made to contact those drivers by delegates, by members on site and by employees at TNT. I am unaware if they have been contacted or not up to this date, but as of this morning at 11 o’clock I think we left off, they had not been – two of the workforce had not been contacted.

PN47

THE COMMISSIONER: Okay. And so, Mr Mackenzie, is that correct? There are two missing currently?

PN48

MR MACKENZIE: Yes.

PN49

THE COMMISSIONER: Nobody else, no dockhands unaccounted for, just two drivers?

PN50

MR MACKENZIE: No, Commissioner. There are still two drivers that haven’t returned.

PN51

THE COMMISSIONER: Right. So it appears they couldn’t be contacted?

PN52

MR MACKENZIE: That’s correct, Commissioner.

PN53

THE COMMISSIONER: They don’t have mobiles, Mr Pinkus?

PN54

MR PINKUS: We do have mobile numbers for them but they - - -

PN55

THE COMMISSIONER: Are turned off?

PN56

MR PINKUS: I presume so. We’ve left them messages, Commissioner.

PN57

THE COMMISSIONER: All right. I’m going to go off the record while I go into conference just for a few minutes and have a chat to the company.

<SHORT ADJOURNMENT [3.09PM]
<RESUMED [3.32PM]

PN58

THE COMMISSIONER: All right. Well, we’ve had a very short conference off the record and I understand, Mr Pinkus, you have some undertakings you are prepared to give on behalf of the Union?

PN59

MR PINKUS: Yes, Commissioner. I give an undertaking that I will not organise any industrial action for the life of this agreement, that I will use the dispute settling procedure of the agreement if there is any dispute at TNT, and I’ll advise members to use the dispute settling procedure if there’s any dispute.

PN60

THE COMMISSIONER: And of the consequences of taking - - -

PN61

MR PINKUS: And of the consequences of taking unprotected industrial action.

PN62

THE COMMISSIONER: All right. So that's sufficient for your purposes at this stage, Mr Mackenzie?

PN63

MR MACKENZIE: Yes, Commissioner. As indicated off the record, could I have that in writing this afternoon?

PN64

THE COMMISSIONER: Well, do you think you could transcribe just that very last bit this afternoon or not? Yes, you can have that this afternoon.

PN65

MR MACKENZIE: Thank you, Commissioner.

PN66

MR PINKUS: Thank you.

PN67

THE COMMISSIONER: All right. Well, the matter will be adjourned. It can be relisted at incredibly short notice, Mr Mackenzie, should you require.

<ADJOURNED INDEFINITELY [3.34PM]