RE2015/100, Transcript of Proceedings [2015] FWCTrans 126 (16 March 2015)

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PN1

THE COMMISSIONER: So can we just confirm who’s involved because I’ve just come in. So from the union we’ve got Mr Coghill, is that right?

PN2

MR D COGHILL: Yes, Commissioner.

PN3

THE COMMISSIONER: Okay, thank you. And we’ve got Mr Powter from AI Group?

PN4

MR A POWTER: That’s right, Commissioner, and also with me is MS RODRIGUEZ.

PN5

THE COMMISSIONER: Yes, and we’ve also got Mr Bocquet, yes?

PN6

MR P BOCQUET: That’s correct, Commissioner.

PN7

THE COMMISSIONER: Okay. Thank you. Where we left it last time was that I required that the meeting take place, in an attempt to resolve the matter without the necessity for issuing the orders; but that if the matter wasn’t resolved then I had indicated that I would issue the order, but not – but only in respect of the time and wages records. And we then got the advice from the TWU that as far as they were concerned the matter had not been able to be resolved to their satisfaction and they wanted the orders issued.

PN8

Prior to my issuing the orders as requested and consistent with what was decided on 30 January, received the letter from the Australian Industry Group, and in their letter on behalf of the company they suggest that appropriate data can be provided to the TWU without the need to access non‑member records, to enable the review of material with some precision to ascertain any suspected contravention the union may have regarding the method of payment Greenfreight applies to its drivers. Given that statement, I felt that it was appropriate to understand from the TWU why they don’t believe – well, why they don’t agree with that statement. So perhaps we might hear from the TWU about that first.

PN9

MR COGHILL: Thanks very much, Commissioner. Yes, I can confirm that the company and myself met on 5 February and at that meeting we requested – I requested that the company provide payslips and the company to comply with the direction you gave on 30 January. And the company reluctantly provided five payslips, and at that meeting we went through a brief rundown of our view of the payslips. However the payslips are only part of the information that we are seeking. The company never provided us with copies of the work cards and / or letters that indicated to the TWU – to the employees that they were deemed changed from an hourly rate of pay to a – from a CPK rate of pay to an hourly rate of pay.

PN10

The company have not provided this information. They gave me every indication that they are unlikely to provide that information. So if the company are now saying to me via – through this letter from Mr Powter that the company are now prepared to provide that information then, Commissioner, we may not need to have that order given. If that is not what the company is saying then we’d certainly see a problem with being able to ascertain properly whether our – the employees are being paid correctly. The follow up to that meeting on the 5th, we had - the company organised a meeting with some of the drivers on the 12th, which the company invited myself and a senior official, John Parker, to attend, which we did. At that meeting it was told to us by two drivers out of the 20 that they indicated that they didn't want the union to be involved.

PN11

Subsequently, we told that meeting that (indistinct) the TWU was brought in was that the reason behind our application in the first place still stands, and we believe that certainly threats and intimidation are alive and well. Now we also believe that out of that meeting the company allowed one fellow in, this individual in particular, to make threats both to the union and to the company, which the company never raised an objection to and allowed the matter to continue. At that meeting we agreed that we would be able to work with the company moving forward, and the TWU took that view of working together to mean that the company would provide the TWU with the information that we were seeking. Commissioner, I don't believe that that position is going to take place.

PN12

THE COMMISSIONER: All right, so can I just – ignoring for a moment what happened, in other words ignoring the past, if there is agreement to provide that information that you have requested or raised at this point, then there wouldn't be a need for the orders. Is that correct?

PN13

MR COGHILL: Yes, Commissioner. Yes.

PN14

THE COMMISSIONER: All right, so we might hear now from the company or the AI Group.

PN15

MR POWTER: Thank you, Commissioner. It's Mr Powter here.

PN16

THE COMMISSIONER: Yes.

PN17

MR POWTER: Yes, just by way of follow-up there have been two meetings, as Mr Coghill has mentioned, between the parties. They were on 5 February. At that 5 February meeting there was five wage slips provided by the company. It wasn't reluctantly provided. It was openly provided to the union, but the payslips had blacked out the names of the individuals as well as their personal bank account details. So that was provided to the union and then there was a subsequent around two hour discussions onsite on the 5th, which then led to a second meeting on 12 February.

PN18

I guess as outlined in our letter, Commissioner, our position is one that we are not hiding behind shields or ducking and weaving here. We're prepared to – I've spoken to the company this morning and I've spoken to the company over the last week. The company is prepared to be very proactive to ascertain that it is paying the correct rate. We believe we are paying the correct rate. We have provided payslips to the union, as well as providing information about the method and how the drivers are being paid.

PN19

At the last meeting on 12 February there was a further indication by the company that it was prepared to undertake an audit of the method of payments for these 30 drivers, and that it would share that information with the union as well. That remains unchanged. We believe moving forward, Commissioner, that we can continue to provide the relevant information. Our biggest concern is providing information that's specific to named individuals, be they union members or non-union members. And I've spoken to the company and we've talked about a way forward, in contemplation of this afternoon's hearing.

PN20

One thing we can do moving forward, Commissioner, is to provide more details, provide more payslips and run sheets as well for a period of a week. The TWU can specify whatever week period they wish to have that segment of wages and payslips provided. We would also be prepared, if any named individual, any individual, gives us written consent we'll provide their records as well to the TWU. But we would require the individual to at least notify to us in writing that they would consent to that, and that's consistent, you know, with section 482(2A) of the Act as well.

PN21

So we believe that would enable there to be, you know, sufficient material provided to the union. It would also alleviate the need for the Commission to issue the order under 483AA, between you would be satisfied that there would be sufficient material given to the union to investigate the suspected contravention, Commissioner. Now in relation to what was said at the meeting, I must say I wasn't at the meeting but Paul was at the meeting, both meetings, and the allegations of any forms of threat and intimidation against fellow workers or against employees we refute.

PN22

I did that last time we were both before you, Commissioner. We recognise employees' rights to question their rate and raise issues regarding their rates of pay and how they are paid, and from where we're coming from we don't believe there is any environment of intimidation on the site at all coming from management towards any driver. I'll leave my submissions at that at this stage, Commissioner, but that's one way which I've discussed with the company as a pathway to move forward.

PN23

THE COMMISSIONER: So, Mr Coghill, is you received – leave aside the issue that Mr Powter referred to a particular week. If you received payslips and run sheets for a number of drivers for a period, for specified periods, would that resolve your – would that give you the information that you need?

PN24

MR COGHILL: I can – Commissioner, we would seek the payslips and the work cards for a period of a month, and could that month be November 2014?

PN25

THE COMMISSIONER: Yes.

PN26

MR COGHILL: If the company are prepared to provide the payslips, the word cards and any method that was supplied to the employees to inform them that they were being paid from – moved from a CPK rate of pay to an hourly rate of pay, then we would be satisfied with that information.

PN27

THE COMMISSIONER: Okay, so you broke up a little bit there, Mr Coghill, so I just want to get clear. So payslips de-identified, that is without the person's name on it?

PN28

MR COGHILL: Yes.

PN29

THE COMMISSIONER: And run sheets for the month of November, right?

PN30

MR COGHILL: Yes.

PN31

THE COMMISSIONER: And any notification that was provided to employees about the shift from - the shift to hourly rate, yes?

PN32

MR COGHILL: Yes, from the CPK rate to an hourly rate of pay.

PN33

THE COMMISSIONER: Yes, from TPK to hourly rate.

PN34

MR COGHILL: Yes.

PN35

THE COMMISSIONER: So have I got it right? It's those three pieces of information, so payslips and run sheets for November and any notification that was – a copy of any notification that was given to employees about the shift from TPK to hourly rate. Is that what you're after?

PN36

MR COGHILL: Yes, Commissioner. Yes.

PN37

THE COMMISSIONER: And in respect of how many employees do you want that information?

PN38

MR COGHILL: Commissioner, to get a fair sample of the employees and their work patterns we would be seeking somewhere in the vicinity of 10.

PN39

THE COMMISSIONER: About 10, did you say?

PN40

MR COGHILL: Yes, and if I may, Commissioner, the TWU are not overly concerned about the identification of the employees concerned.

PN41

THE COMMISSIONER: Yes.

PN42

MR COGHILL: So we're more than happy for the company to keep the individual's identification private.

PN43

THE COMMISSIONER: Yes.

PN44

MR COGHILL: And so if that was to allay the company's fears of that, we're hoping that would make it easier.

PN45

THE COMMISSIONER: Okay, so if I just summarise again so then Mr Powter can respond. So the payslips and the run sheets and any notification to the employees about the shift from TPK to hourly rate in respect of 10 employees for the month of November 2014? Is that a correct summary, Mr Coghill?

PN46

MR COGHILL: Yes, Commissioner. Yes.

PN47

THE COMMISSIONER: Thank you. All right, so Mr Powter, is that something that the company can do?

PN48

MR POWTER: Commissioner, it might be best if Jude Lowe could respond to – the capacity to do that. I believe that it is something – but just Jude can confirm that.

PN49

THE COMMISSIONER: Okay. Yes, Mr Lowe[sic], can you let us know whether that's possible?

PN50

MS J LOWE: Sorry, Commissioner, you just broke up after – before Daryl – not Daryl - - -

PN51

THE COMMISSIONER: Okay, so - - -

PN52

MS LOWE: - - - Dale spoke.

PN53

THE COMMISSIONER: We're just seeking from you whether in lieu of – instead of us making an order will the company agree to provide that information, which is the payslips and the run sheets for the month of November 2014 in respect of 10 employees with their names and bank details removed, together with any notification letter or email, or whatever form it's in, to employees about the shift from TPK to hourly rates?

PN54

MS LOWE: Yes, we can provide that.

PN55

THE COMMISSIONER: Yes? Okay.

PN56

MS LOWE: Yes.

PN57

THE COMMISSIONER: All right, and when would you be able to do that?

PN58

MS LOWE: Today is the 18th. Would the end of the month be sufficient, Commissioner?

PN59

THE COMMISSIONER: By the end of February?

PN60

MS LOWE: The end of February, sir, yes.

PN61

THE COMMISSIONER: Yes, is that - - -

PN62

MS LOWE: Would that be sufficient?

PN63

THE COMMISSIONER: Is that an acceptable timeframe, Mr Coghill?

PN64

MR COGHILL: Commissioner, we would say within seven days.

PN65

THE COMMISSIONER: Can you do it within seven days, Mr Lowe – Mr Law, sorry?

PN66

MS LOWE: With respect to Mr Coghill, Commissioner, we wouldn't be able to do it in seven days, and I'm not being obstructionist. I understand that there is still a number of run cards to get photocopied, still a number of timesheets to be photocopied. So 40 timesheets and however many – and they would be already archived. We're more than happy to provide it as long as it's a fair and reasonable timeframe.

PN67

THE COMMISSIONER: Well, today is the 18th so the 28th is 10 days' time. I don't think it's worth fighting about three days, frankly. So Mr Coghill, are you prepared to accept 28 February?

PN68

MR COGHILL: Commissioner, given it's only for three days, yes we will.

PN69

THE COMMISSIONER: All right. So I will not issue the order requested, and the TWU have accepted that on the basis that the information is provided to the TWU by 28 February, and that's the de-identified payslips and run sheets in respect of 10 employees, together with any notification to employees about the shift from TPK to hourly rate, and that will resolve this matter. So this particular file will be closed on the 28th of – well, sorry, on 1 March. Just before we close, just for the record, Mr Law, could you just spell your name so we've got that – have that correct?

PN70

MS LOWE: Sure, Commissioner. It's Ms Jude, J-u-d-e, Lowe, L-o-w-e.

PN71

THE COMMISSIONER: L-o-w-e?

PN72

MR LOWE: Yes.

PN73

THE COMMISSIONER: My apologies for getting it wrong. It's just, you know, the sound quality of the phone is not so good.

PN74

MS LOWE: No problem at all, Commissioner.

PN75

THE COMMISSIONER: All right, thank you.

PN76

MS LOWE: No problem at all.

PN77

THE COMMISSIONER: Thank you for that. So unless there's anything else, that concludes this matter.

PN78

MR POWTER: Thank you, Commissioner.

PN79

THE COMMISSIONER: All right.

PN80

MR COGHILL: Thank you, Commissioner.

PN81

THE COMMISSIONER: Thank you. All right, we've concluded.

PN82

MS LOWE: Thank you, Commissioner.

PN83

THE COMMISSIONER: Thank you.

ADJOURNED INDEFINITELY [2.21 PM]

Fair Work Commission Transcripts

RE2015/100, Transcript of Proceedings [2015] FWCTrans 126 (16 March 2015)