C2008/2708, Transcript of Proceedings [2008] AIRCTrans 472 (28 August 2008)

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TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18968-1

COMMISSIONER RAFFAELLI

C2008/2708

s.170LW - prereform Act - Appl’n for settlement of dispute (certified agreement)
Patrick Stevedores Holdings Pty Limited
and
Maritime Union of Australia, The
(C2008/2708)

SYDNEY

10.06AM, FRIDAY, 15 AUGUST 2008

PN1

MR C GARDNER: I appear for the applicant Patrick in both matters, Mr Commissioner, and I seek leave to appear.

PN2

MR P PASFIELD: If it please the Commission I seek leave to appear in both matters. With me is MR W GIDDINS. I obviously appear for the union.

PN3

THE COMMISSIONER: Yes, leave is granted. Yes, Mr Gardner?

PN4

MR GARDNER: Yes, thank you, Mr Commissioner. There are two applications before you. I will provide a suggestion as to how we think that they should proceed. Before doing so if I could provide some background for you. There are two applications. One is the 170LW application which is the application over - or a dispute over the application of the prereform certified agreement being the Patrick General Stevedoring Certified Agreement 2004. So there is a dispute over the application of that agreement and secondly there is the application to terminate that agreement being a 170MH application.

PN5

Now in both instances the legislation relied upon to bring forward those applications is actually under the prereform, that is a pre WorkChoices legislation, but those provisions are continued by the operation of the current WorkChoice legislation under schedule 7 of that legislation. There are provisions there which simply say prereform agreements continue and certain sections which bear upon those agreements continue and 170LW is one sub-section and 170MH is another sub-section. That is just to say that there is a foundation for being here and I won't labour that any further.

PN6

Some background, Mr Commissioner. The enterprise agreement operates in well over a dozen sites around the country and Patrick together with the MUA has been in quite exhaustive negotiations over many months to replace that national agreement with site based agreements. Those negotiations have progressed on the basis that each agreement will have three parts, part A, B and C, and A and B will be common to each site and part C will be particular to each site. I think it's fair to say that the parties ought to be commended for their efforts and their stamina because agreement has been reached in I'm instructed all the ports apart from Melbourne and Brisbane and I understand perhaps Darwin next week.

PN7

From Albany to Townsville to Tasmania negotiations have taken place since April of this year. Mr O'Leary who is with me today is exhausted by those negotiations, notwithstanding that he has more stamina than Stephanie Rice I think it's fair to say. But we thought we had agreement in Brisbane and we haven't. We don't understand why but nevertheless that's the position. I say all that just to say that had agreement been reached in Brisbane we wouldn't be here today. That is to say there is some overlap between what has happened in negotiations and the subject matter of what is here today.

PN8

The operation in Brisbane is facing significant and unsustainable losses such that the company needs to take some serious steps and do so as a matter of urgency. The volumes in Brisbane simply don't support the current work arrangements such that they need to be changed or otherwise those volumes won't support the current workforce numbers. The structuring of the work arrangements and rostering is at the heart of this issue. Under the enterprise agreement the full time employees have their work - are paid a salary I should say and that salary is based on them working 1645 hours per year or 1820 hours per year if you were to include annual leave and that is based on a 35 hour week.

PN9

Now the decline in the work volumes means that in every case, that is every employee, the 1645 hours isn't being worked. It's being paid for but it isn't being worked. On average each employee is working 464 hours less than that 1645 hour target. It's a significant reduction. Now the costs associated with this are compounded to the tune of some $800,000 per annum because where an employee works beyond eight hours they are entitled to overtime and so we have a situation where people are getting paid for about 22 hours per week and getting overtime for that as well. So that brings into focus two issues. The first issue I'll characterise as the 1645 issue and the second issue is the overtime issue.

PN10

THE COMMISSIONER: Mr Gardner, do I take it that the drop in work doesn't create problems for any casuals or juniors, they're just earning less? They're not really - they're affected but it's not - - -

PN11

MR GARDNER: That's correct.

PN12

THE COMMISSIONER: They're accommodated by the - they're earning less but you're paying less which is different from the - - -

PN13

MR GARDNER: Yes.

PN14

THE COMMISSIONER: I take it that - so it's the full timers you're concerned about.

PN15

MR GARDNER: Yes, it's the full timers.

PN16

THE COMMISSIONER: Okay. Right.

PN17

MR GARDNER: Now for both those issues there are mechanisms to deal with it in the agreement. The agreement is structured in such a way we say which enables those two very issues to be dealt with. It's those mechanisms that are in dispute. Coming back to the first issue if I can turn now to the agreement. Do you have a copy of the agreement there?

PN18

THE COMMISSIONER: No.

PN19

MR GARDNER: I'll hand one up.

PN20

THE COMMISSIONER: Unless it's been filed I haven't.

PN21

MR GARDNER: I'll hand one up.

PN22

THE COMMISSIONER: Yes.

PN23

MR GARDNER: So focussing on the first issue, Mr Commissioner, if I can ask you to turn to clause 17.2 which is on page 23 of the agreement.

PN24

THE COMMISSIONER: Yes.

PN25

MR GARDNER: This is the first issue and this is essentially the first clause which is in dispute or in contention. You will see that the clause refers to certain rostering arrangements in schedule 8 and then the clause goes on to say that:

PN26

It is acknowledged that during the life of this agreement the company shall consult with the employees and the union and make variations to the internal configuration of each roster to accommodate changes to levels of employees or to levels of business and demand. Any such change shall not alter the aggregate of working days required or duty free days within the rosters.

PN27

So what Patrick has sought to do is to change the internal configuration of the rosters and that initiative has been resisted. That again is the first issue.

PN28

THE COMMISSIONER: It hasn't altered the aggregate of working days?

PN29

MR GARDNER: No. What is proposed does not alter the aggregate of working days required or the duty free days within the rosters.

PN30

THE COMMISSIONER: Right.

PN31

MR GARDNER: I will come back to this, Mr Commissioner. The second issue centres on clause 17.18 which is on page 27 of the agreement.

PN32

THE COMMISSIONER: Yes.

PN33

MR GARDNER: That is the clause which makes plain that employees will earn overtime at the end of eight hours. That's the first sentence in 17.18. Then it goes on to provide a mechanism to change that situation:

PN34

Ensure the annual salary worked hours of 16.45 are worked. In addition to such overtime payments a review of each employee's worked hours shall occur at six monthly intervals. Where it is found that an employee has not worked half of the annual hours then overtime payment for shift extensions beyond the eight hours will be suspended until such time as those pro rata short salary powers have been recovered.

PN35

So Patrick has sought to suspend the overtime hours and that has been resisted. There have been discussions about this issue I'm instructed at a local level which I understand Mr Munday who is here today, the deputy branch secretary, has been involved and there have been discussions at a federal level with Mr Newland who of course is the assistant state secretary of the union. No joy has followed from those discussions and hence the disputes procedure leads us to the Commission and calls for conciliation in the first instance. If I can just hand up Mr Commissioner the letter from Patrick to the union formally notifying the union of the changes it seeks.

EXHIBIT # P1 LETTER FROM PATRICK STEVEDORES TO UNION NOTIFYING CHANGES

PN36

THE COMMISSIONER: Yes.

PN37

MR GARDNER: So the two issues are reflected in this letter. The first begins on the bottom of page 1 where Mr Tamplin, the author of this letter, says:

PN38

The company now formally gives notice under clause 13 and clause 17.2 of its intention to vary the internal configuration of each roster as follows.

PN39

What is set out is the proposed revised internal configuration of the rosters. Mr Tamplin sets out the reasons for that in the paragraph after that roster availability matrix. Then the second issue is dealt with in the last paragraph of the second page where notice is given of the intention to implement the arrangements set out in clause 17.1 and remove access to overtime payments for employees who work over eight hours. They again are the two issues that have been discussed and which are in dispute.

PN40

I don't propose to go into any great detail around the arguments associated with those clauses now but as I understand the union's position in relation to the clause 17.2 issue, the hours issue, there is a suggestion that the actual duty free days set in the current roster need to remain the same. That seems to be the contention that's being put or at least there is some debate about the number of duty free days, but we say the aggregate of those days will be maintained.

PN41

THE COMMISSIONER: Are you saying the difference is that where the words say "any such change shall not alter the aggregate of working days required or duty free days within the rosters" that on one reading the word "aggregate" defines the duty free days? You say any such change shall not alter the duty free days or the aggregate of duty free days?

PN42

MR GARDNER: We says it's the aggregate.

PN43

THE COMMISSIONER: I understand. That's right.

PN44

MR GARDNER: That's what we say.

PN45

THE COMMISSIONER: They say you can't alter the aggregate of working days required nor can you alter the duty free days.

PN46

MR GARDNER: I understand that - - -

PN47

THE COMMISSIONER: That's their position. Yes, okay, that's the difference.

PN48

MR GARDNER: Yes, but Mr Pasfield might say something else but I gather that's the heart of the contention. As to the overtime issue that's clause 17.18 again on page 27. The debate is not so much about the capacity to do this but it is about the timing of this. Patrick's view is that it can put the stake in the ground at any time and simply look retrospectively and take a view about the number of hours that have or haven't been worked and seek to rectify the issue from that moment forward. As I understand it the MUA contends that we have to wait until December, that is half way through the financial year, to do the retrospective. We of course say that there is nothing in the agreement which suggests that.

PN49

We also say in respect of both clauses, Mr Commissioner, that there are other clauses in the agreement in particular, and I just note them for now, clause 7 which deals with the intent of the agreement, clause 13 which deals with change and continuous improvement, and clause 14.1 which deals with job manning and work practices. Once you look at the agreement through the lens of those provisions it becomes even clearer that the interpretation that Patrick seeks in both provisions is right.

PN50

Now that's all I propose in the way of an overview of the dispute, but I wanted to return Mr Commissioner about the nature of interpretations. Both are listed. We wanted at the outset to be I guess upfront and transparent about where we saw things going. The way we suggest proceedings the application is as follows. Obviously there will be - we would be grateful for time today in conference and perhaps further time next week, but if discussions don't resolve the matter then we would suggest that the LW matter proceed first because if Patrick is successful in that there is not then the need to proceed with the termination of the agreement.

PN51

Terminating the agreement is another step to get the same solution by relying upon the award provisions. It's not a step which is taken lightly. Patrick and Mr O'Leary would not be here if it weren't for the tenuous position the business is in. As I said if the LW application isn't successful then we will proceed with the MH application but we don't see much point running that at the same time because it might take up time which was ultimately not necessary if that makes sense. If it pleases.

PN52

THE COMMISSIONER: The only thing that you haven't talked about and that's Melbourne. That's not in issue at the moment. Your discussions are continuing.

PN53

MR GARDNER: Discussions are continuing and our preference is to proceed with the Brisbane issue.

PN54

THE COMMISSIONER: Okay. All right. Yes, Mr Pasfield?

PN55

MR PASFIELD: Commissioner, we're happy to simply proceed to conference at this stage.

PN56

THE COMMISSIONER: Okay.

<NO FURTHER PROCEEDINGS RECORDED

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT # P1 LETTER FROM PATRICK STEVEDORES TO UNION NOTIFYING CHANGES PN35