AG2015/2141, Transcript of Proceedings [2015] FWCTrans 234 (14 April 2015)

	Home \| Databases \| WorldLII \| Search \| Feedback Fair Work Commission Transcripts

PN1

THE SENIOR DEPUTY PRESIDENT: I've listed this matter today because there's been an objection by the AWU that the application should be dismissed because the agreement doesn't pass the BOOT. You understand that that's why it's listed, Mr Murray?

PN2

MR D MURRAY: Yes, I do. Thank you.

PN3

THE SENIOR DEPUTY PRESIDENT: And you're with Mr Hogbin. Are you the IR manager?

PN4

MR G HOGBIN: Correct, Deputy President.

PN5

THE SENIOR DEPUTY PRESIDENT: Mr Gounis, you are appearing for the AWU.

PN6

MR A GOUNIS: That's correct, your Honour.

PN7

THE SENIOR DEPUTY PRESIDENT: You're welcome.

PN8

MR GOUNIS: Thank you, your Honour.

PN9

THE SENIOR DEPUTY PRESIDENT: Your first appearance?

PN10

MR GOUNIS: That is correct, your Honour.

PN11

THE SENIOR DEPUTY PRESIDENT: Well, be kind to him, Mr Murray.

PN12

MR GOUNIS: I apologise - second appearance.

PN13

THE SENIOR DEPUTY PRESIDENT: Second, all right. Your call.

PN14

MR GOUNIS: Thank you, your Honour. As your Honour has mentioned the AWU objects to the approval of the D AND D Traffic Management and Other Work Enterprise Agreement 2015. One of the grounds is because we say that the agreement doesn't pass the Better Off Overall Test as required by section 186(2)(d) of the Act and the test, as provided, section 193(1), being that the Commission must be satisfied at test time that each award-covered employee in each respective award-covered employee for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied.

PN15

Secondly, your Honour, we say that the application cannot be approved because the nominal expiry date provided is more than four years from the prospective date of approval. Clause 5 of the agreement refers to the expiry date at being June 2019, which from today's date and from the next couple of months would be more than four years. If your Honour is minded, I might run through some of - - -

PN16

THE SENIOR DEPUTY PRESIDENT: You should take me to which particular employees. I've listed this for oral submissions and it might have been - do you intend to rely on those matters set out in your correspondence of 25 March?

PN17

MR GOUNIS: Your Honour, I will provide oral submissions.

PN18

THE SENIOR DEPUTY PRESIDENT: But they're the matters that you intend to address.

PN19

MR GOUNIS: There are some other matters and a couple of matters I'd wish to clarify, so the matters which I outlined in the email I sent to chambers was the summary of the issues as I saw them at that point in time and being the key issues. There are a number of additional matters that have come to the union's attention.

PN20

So firstly, your Honour, the union doesn't press its objection in relation to penalty rates. It appears as though the agreement applies overtime rates for Saturday and Sunday work, which would have the same or similar effects. So the union doesn't rely upon that point which was addressed in its email.

PN21

THE SENIOR DEPUTY PRESIDENT: Which one is that? I'm sorry, Mr Gounis, I'll just go through your - that's dot point 3?

PN22

MR GOUNIS: Correct, your Honour.

PN23

THE SENIOR DEPUTY PRESIDENT: So that's no longer pressed. Yes, go on.

PN24

MR GOUNIS: The union's three primary objections relate to firstly the classification of a level 1 trainee traffic controller, which is at the pay rate of 19.62, which we say is below the award minimum as prescribed in Schedule B of the Building and Construction Award being the award classification of CW2 which has a minimum wage rate including special allowance and industry allowance of $20.01.

PN25

In relation to that objection, your Honour, on page 22 of the agreement, it outlines the classification as it applies to the trainee traffic controller. As your Honour will observe, the employees who would be at this level are required to be accredited to perform traffic management duties and will be performing traffic management duties as is prescribed by the CW2 classification of the award. The reason for these employees being classified as a trainee is because of the alleged lesser experience that these employees have in the industry and that they haven't done the requisite number of hours from the company's perspective to attain the level 2 classification.

PN26

THE SENIOR DEPUTY PRESIDENT: Is the level of hours indicated anywhere?

PN27

MR GOUNIS: It is inferred from level 2, which provides that a level 2 traffic controller has greater than 800 hours proven industry experience. Also of concern in relation to the level 1 classification is the comments under the subheading General, which refers to promotion to a higher level being at the sole discretion of the company and that a minimum of 33 per cent of the employee numbers will need to be maintained at each level. Again the union's primary position is that the minimum classification for a traffic controller, regardless of experience, as provided in the award is CW2, which is a pay rate of $20.01 including the applicable allowances.

PN28

Under this proposed agreement the pay rate for the level 1 employees is $19.62. That would apply to permanent and casual employees who the company proposes to classify as a level 1 trainee traffic controller. Our second objection relates to the minimum pay rates for customer service officers and that classification is provided at page 23 of the proposed agreement.

PN29

Now, the proposed pay rates for a customer service officer are the minimum wage and if we have a look at the prior agreement that applied to employees at D and D Traffic Management, there was no CSO classification and that these employees, however they are characterised - and we take an issue with how they're characterised as being effectively award-free, such that the minimum wage would apply to them - were employed under the classification in the prior agreement, being the D and D Traffic Management Pty Ltd and Australian Workers Union Collective Agreement 2008 to 2011, which was varied on 19 February 2013 [2013] FWCA 1155, the minimum pay rates for these employees under the prior agreement at 26 January 2013 would have been $18.25. The rate that is proposed under the current agreement before the Commission is $16.87.

PN30

Now, that doesn't have a definitive impact in relation to the BOOT.

PN31

THE SENIOR DEPUTY PRESIDENT: Why doesn't it have a definitive impact in relation to the BOOT?

PN32

MR GOUNIS: In relation to the award comparison, but we say your Honour that these employees are not award-free; that is not the correct characterisation, which is the only characterisation that could be given to them to be allowed for them to be paid at the minimum wage.

PN33

These employees, as provided by the minimum qualification on page 23, is that they are required to hold a WorkCover white card, which is a general induction construction and these employees perform traffic control and related work, I will be at being outside the building construction industry.

PN34

We say that these employees are performing traffic control work and that they're required to hold a general induction in relation to the construction industry and that they would properly fall under either the Building and Construction General Onsite Award or in the alternative the Security Officers Award.

PN35

These employees are performing traffic control work and in terms of considering whether or not an employee would or would not be covered by an award, the Commission should take a purposive approach and where an award is apt to cover employees based on the work that they're performing, then they should be covered by that award. In that regard, I note that the minimum wage proposed in the agreement is below the minimum classification that is in the Building and Construction General Onsite Award.

PN36

Thirdly, your Honour, we refer to the payment for employees who are performing work which is characterised as being during a night span. So that is provided on page 18 of the agreement. It's proposed that these employees will be paid an allowance of 30 per cent when performing duties during night span and it appears as though that would apply even where an employee would only do one or two or irregular night shifts.

PN37

Noting that this is a casualised industry and the F17 speaks to that, in terms of the proportion of casual employees, that would be covered by this agreement. So therefore these employees are not regular night shift workers. They will do irregular night shift work; that is, they are not permanent night shift workers and therefore they should be paid at overtime rates for night work. If indeed they were shift workers as defined by the award then they would be entitled to additional rates for night shift work on Saturdays and Sundays and also shift allowances for any afternoon shifts that are performed.

PN38

In relation to some of the other matters that the union relies upon, clause 8(d) of the agreement, which is on page 7, sets out that employees must have at least eight hours consecutive hours off duty after finishing work. The award prescribes that the minimum period of time off is 10 hours, which is provided at clause 36.9 of the award.

PN39

In relation to clause 9, Travel Entitlements, in the agreement, we say that they are also on a whole below the award minimum under the Building and Construction Award. So the first point referred to, we do not press that in relation to a vehicle allowance. There is a vehicle allowance that is provided at a later stage in the agreement. However, we continue to press our arguments that employees under the agreement are only paid for travel time if it's more than 70 kilometres from the nearest depot as opposed to 50 kilometres from the radial area under the award, which is provided at clause 25.2 and 25.4.

PN40

That radial area itself means that a shorter distance may well be travelled before an employee is entitled to be paid for travel time, because the radial area references and is measured from the principal post office in the regional area or the metropolitan area. Further, employees who are travelling in excess of the stipulated travel distances under the agreement are not paid or reimbursed for the costs incurred per kilometre for that additional travel. Under the award, clause 25.5(vii) that rate is paid at 47 cents per kilometre.

PN41

In relation to employees who are provided with a vehicle and are required to pick up or transport other employees to and from work, they are not paid for their travel time under the agreement whereas clause 25.1 of the Building and Construction Award does prescribe that this occurs. The reference to no driver allowance in annexure A, we do not press that. That is provided at the end and is referred to in the F17 as being one of the matters which is more beneficial than the award.

PN42

I might just quickly run through some of the additional concerns - - -

PN43

THE SENIOR DEPUTY PRESIDENT: Sorry. The one that you are not pressing is the absence of a driver allowance?

PN44

MR GOUNIS: Correct, your Honour.

PN45

THE SENIOR DEPUTY PRESIDENT: Yes. So the two matters set out in your first correspondence not pressed are dot point 3 and the third point in relation to clause 9. All other matters are pressed.

PN46

MR GOUNIS: And the first dot point in clause 9 as well.

PN47

THE SENIOR DEPUTY PRESIDENT: Is not pressed?

PN48

MR GOUNIS: That's correct. So in relation to some of the additional concerns of the union, clause 17 of the agreement prescribes the redundancy arrangements, which are provided as being in accordance with the NES. Clause 17.3 of the Building Construction Award prescribes an industry redundancy scheme and the details of that scheme. The minimum requirements of that scheme are prescribed in the Building and Construction Award Clause 17.

PN49

In relation to any permanent staff and shift workers, we say that they are worse off because there is no inclement weather clause in the agreement and the inclement weather clause in the award, which prescribes that employees will be paid for a proportion of days where they are not able to perform duties because of inclement weather is at clause 23 of the Building and Construction Award. Secondly, there doesn't appear to be a reference to five weeks' annual leave for continuous shift workers in the agreement.

PN50

Now, a couple of matters which relate to casual employees and as I've mentioned, your Honour, the vast majority of employees within the industry and for the employer are engaged on a casual basis. Clause 14.8 of the Building and Construction Award prescribes that employees have a right to convert to permanent employment after a certain period of time and based on some other factors and this is not reflected in the agreement, and secondly, doesn't appear as though the agreement provides the written notice to casuals of the expected duration of the work that they may perform.

PN51

There is a slight conflict in relation to a couple of provisions of the agreement, as they apply to casual employees. So clause 17 states that:

PN52

A casual employee's employment may be terminated on one hour's notice either side of a work shift.

PN53

The union says that could be read as meaning an employee's shift could be cancelled within one hour of having started.

PN54

THE SENIOR DEPUTY PRESIDENT: What is the award entitlement?

PN55

MR GOUNIS: The award entitlement is that casuals will be paid a minimum of four hours if the job is cancelled. That is provided, your Honour, in clause 14 of the agreement. There is just a conflict there which could give rise to concerns going forward.

PN56

In relation to being recalled to perform overtime, clause 36.3 of the award prescribes that a minimum of three hours at overtime rates must be paid. Clause 8(b)(ii) prescribes that the hours worked will be paid and doesn't set a minimum.

PN57

Clause 13 of the Building and Construction Award prescribes requirement in relation to part-time employees in terms of a written agreement as to when they will work; so the time and days that they will work and the period of that part-time arrangement being on foot. The corollary of that is if worked above those hours they would be paid overtime. These requirements aren't reflected in the agreement.

PN58

Clause 7 of the agreement merely prescribes that part-time employee's hours will average less than 38 hours per week. The award also prescribes that any variation to the part-time hours must be in writing.

PN59

A couple of final matters, your Honour; clause 26 of the agreement, which relates to training, states that casuals will not be paid for training that they are directed by the company to attend and that the costs of the training will not be paid unless the employee completes and passes the training. The agreement also doesn't prescribe the opportunity for employee representatives to conduct and receive dispute-resolution training of five days, which is provided at clause 9.7 of the Building and Construction Award.

PN60

Your Honour, I also have some comments in relation to the F17 and the matters which the company relies upon as demonstrating that notwithstanding any matters that cause employees to be worse off there are some additional benefits. I'm not sure if your Honour would like to hear from the company.

PN61

THE SENIOR DEPUTY PRESIDENT: No, I'd like to hear from you now.

PN62

MR GOUNIS: Thank you, your Honour. I might refer to the F17 which has been declared by Diego Diaz.

PN63

THE SENIOR DEPUTY PRESIDENT: Why don't you use that lectern? Pull it over, you're so tall. You are making my back ache looking at you. Is that better?

PN64

MR GOUNIS: Thank you, your Honour. So the F17 employer statutory declaration in support of an application for approval of an enterprise agreement was declared by Diego Diaz who appears to be a director of D and D Traffic Management. That was declared on 9 March 2015 before Justice of the Peace Mr Geoffrey Charles Hogbin.

PN65

In relation to the F17, your Honour, I might first take your Honour to paragraph 3.5 which asks for the person providing the declaration to answer the following question"

PN66

Does the agreement contain any terms that are less beneficial than equivalent terms and conditions in reference instruments listed in questions 3.1 and 3.2 and/or does the agreement confer any entitlements that are not conferred by those reference instruments?

PN67

The response which was provided by Mr Diaz was "No." The union submits that based on the matters I have just spoken to, that that - - -

PN68

THE SENIOR DEPUTY PRESIDENT: Is incorrect.

PN69

MR GOUNIS: That answer is incorrect, your Honour. At paragraph 3.4, in response to the question:

PN70

Does the agreement contain any terms and conditions of employment that are more beneficial than equivalent terms and conditions in the reference instruments listed in questions 3.1 and 3.2 and/or does the agreement confer any entitlements that are not conferred by those reference instruments?

PN71

The response was "yes" and five matters were listed. I might briefly speak to those matters. Firstly, your Honour, the company - Mr Diaz - refers to the living away from home allowance. Under the agreement at page 25 provides a payment of $75 per night. The award prescribes a payment of $65 per night so the union accepts that there would be an additional benefit in relation to living away from home allowance of $10 per day. However, that additional benefit is surpassed by employees not being entitled to the travel allowance of $17.43 for distant work.

PN72

THE SENIOR DEPUTY PRESIDENT: We're getting there.

PN73

MR GOUNIS: So clause 25.3 of the building and construction agreement prescribes that the allowance which is $17.43 as listed at 25.2, must be paid to employees employed on distant work, which is defined in clause 24.1. Clause 24 itself refers to living away from home distant work. So therefore although the employees may receive an additional $10 LAHA, to use the vernacular, they do not receive the travel allowance of $17.43, so in fact they're $7.43 worse off when living away from home.

PN74

In respect of the team leader allowance, the union accepts that employees would receive small additional benefits of $38 per week if the team leader is responsible for five to 10 people as their responsibility increases in terms of the number of people, the additional benefit conferred by the agreement reduces in quantum and related to that point, it is at the company's discretion whether or not there will be a team leader for the project or job and as noted in the agreement not all jobs will have a team leader present.

PN75

In relation to the driving allowance on page 26 of the agreement, which is the sum of $25 per day, the union notes that any employees who would be picking up or dropping off other employees are not paid for travel time, which is prescribed in the award and that where they are provided with a vehicle which includes all work material; that is, a truck with various equipment, it may well be that they are performing duties when they are driving to and from work sites.

PN76

The fourth matter referred to is a truck-mounted attenuator allowance of one dollar per hour additional benefit if the employee performs that role. Finally, F17 refers to the first aid allowance of $2.69 per shift, which is provided at page 26 of the agreement. Clause 21.10 of the award prescribes the same allowance for persons who are required to hold and perform first aid duties as directed by the employer. So in respect of that matter, we'd say it's the same as the award.

PN77

THE SENIOR DEPUTY PRESIDENT: So it's not a benefit.

PN78

MR GOUNIS: Correct, your Honour. Your Honour, I think that's all I have to say at the moment.

PN79

THE SENIOR DEPUTY PRESIDENT: It seems to me, Mr Murray - well, it did when I read the agreement and the submissions that there are significant matters raised here in terms of the BOOT. Would you like an opportunity to put your submissions in relation to these matters in writing?

PN80

MR MURRAY: Some of these issues are new to us in that they weren't the subject of the email that was forwarded to us outlining what we were to face today. So to that extent - - -

PN81

THE SENIOR DEPUTY PRESIDENT: Which is another reason why I am giving you that opportunity.

PN82

MR MURRAY: Yes, it would be appropriate, at Leicester have some time for me to get some instructions on those points. Maybe we can deal with those today, rather than delay matters.

PN83

THE SENIOR DEPUTY PRESIDENT: Well, I wasn't thinking that you would delay them. I was thinking of giving you a week to put a written submission in and then giving Mr Gounis three days to respond.

PN84

MR MURRAY: Yes. Perhaps I might have a very brief word - - -

PN85

THE SENIOR DEPUTY PRESIDENT: The problem that we've got - the problem with the term of the agreement is a real one.

PN86

MR MURRAY: Yes. That came as something of a surprise and I suspect that it might've been a typographical error, which perhaps could be attended to under the slip rule. It wasn't intended that this agreement runs for more than the period allowed under the Act.

PN87

THE SENIOR DEPUTY PRESIDENT: It is, however, in the - it is the term that was voted on by the employees though.

PN88

MR MURRAY: That is the case, but of course the employees cannot validly have voted on a term which is not allowed to them, if you like, your Honour. The intention certainly wasn't that the term extended beyond four years.

PN89

THE SENIOR DEPUTY PRESIDENT: Yes.

PN90

MR MURRAY: It's a matter of a fairly short difference in the term of the agreement, but as I say it potentially might be attended to either by the making of an undertaking or under the slip rule and simply directed on the record.

PN91

THE SENIOR DEPUTY PRESIDENT: All right. The other matters are matters of substance which you can tell me how long you need. I would prefer you to provide a written submission detailing the differences and going to some balance against the award.

PN92

Did you know there's an application for a separate award for traffic?

PN93

MR MURRAY: I had been made aware of that, yes, but of course that can't play a part in your decision.

PN94

THE SENIOR DEPUTY PRESIDENT: No, I'm just wondering if he knew about that?

PN95

MR MURRAY: It's to attend to some of the issues that this agreement was intended to do, and amongst them the sticking point as between the company and the union - the company had been negotiating with the AWU; not the Newcastle branch, but the main branch, the New South Wales branch of the union - and the sticking point had been this question of trainees, and I understand that's attended to in the application for a new award amongst other things.

PN96

THE SENIOR DEPUTY PRESIDENT: Well, amongst many other things, none of which can be agreed, since I've been allocated to bar.

PN97

MR MURRAY: Yes, but I have a response to that particular issue anyway and that is that the Building Award does provide for employees to be engaged as trainees working towards the CW2 classification.

PN98

THE SENIOR DEPUTY PRESIDENT: For a period of at least - I mean, if you were a full-time employee it's a period of 21 weeks.

PN99

MR MURRAY: Yes, and this is - - -

PN100

THE SENIOR DEPUTY PRESIDENT: And this is not rocket science.

PN101

MR MURRAY: Well, it might not seem so, but that is perhaps a rather jaundiced view, your Honour.

PN102

THE SENIOR DEPUTY PRESIDENT: No, not jaundiced. I'm just forming a view about the skill level of the work involved and 20 weeks at full-time training, the equivalent of full-time training for a job of this kind, it's a very long period.

PN103

MR MURRAY: Yes, but you will note of course that the award provides for a graduated series of classifications for new entrants, and this is about new entrants to the industry. This is about people who haven't worked in the industry before.

PN104

THE SENIOR DEPUTY PRESIDENT: All right.

PN105

MR MURRAY: Perhaps I can take you to Schedule B of the Building and Construction General Award. It does provide for a classification structure and, in particular, provides for classifications of CW1 and CW2, which are the ones in issue here.

PN106

In the case of CW1, levels A, B, C and D reflect time in the industry. Now, CW1 is not rocket science, as you correctly say. CW1 is labourers of various sorts and other classes of employees, but even so the award does provide for the classification outcome for the employee to be based on the skill level and the experienced time in the industry. So if we go to - do you have the award before you at the moment?

PN107

THE SENIOR DEPUTY PRESIDENT: No, I don't, but Mr Murray, since you have to address those additional matters and since I've already flagged I don't think a couple of them are serious matters, so it might influence my determination of the issue, I think you've be better off if you put your matters in the submission.

PN108

MR MURRAY: I'm happy to take that opportunity, thank you.

PN109

THE SENIOR DEPUTY PRESIDENT: How long do you want?

PN110

MR MURRAY: The timing is the challenge though. Of course, it's Holy Thursday today and Good Friday tomorrow and I'm actually going to be on leave with my children in the coming week, which ordinarily I wouldn't raise as an issue, but it would trouble - - -

PN111

THE SENIOR DEPUTY PRESIDENT: No, I'm the perfect person for you to raise that with, Mr Murray.

PN112

MR MURRAY: So in terms of the time to respond, I'd be inclined to ask for two weeks.

PN113

THE SENIOR DEPUTY PRESIDENT: It's a matter for you. It's your application.

PN114

MR MURRAY: Yes.

PN115

THE SENIOR DEPUTY PRESIDENT: I'm not going to press you. The application remains outstanding until you - why don't you just do it as quickly as you can, given your commitments, and Mr Gounis can respond. How long do you think you would need to respond, given your work commitments, Mr Gounis?

PN116

MR GOUNIS: Your Honour, I think one week would be prudent.

PN117

THE SENIOR DEPUTY PRESIDENT: All right. Well, you just get them in when you can and Mr Gounis can have a week after that.

PN118

MR MURRAY: Thank you, your Honour. So by way of indication, I will endeavour to have them in two weeks from today and a further week.

PN119

THE SENIOR DEPUTY PRESIDENT: That would be good. Have a lovely weekend with your children.

PN120

MR MURRAY: Thank you, your Honour.

PN121

MR GOUNIS: Just one final matter, your Honour. In relation to the requirement that the agreement has been genuinely agreed to by the employees, the F17 does refer to a memorandum that was provided to employees summarising the differences between the agreement that applied at that point in time and the proposed agreement. I think it would be prudent, considering the matters outlined in respect of the F17 for a copy of that to be provided to the union.

PN122

THE SENIOR DEPUTY PRESIDENT: And to me.

PN123

MR GOUNIS: And to the Commission.

PN124

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. To the union and to me, Mr Murray. You do that work then in your own time and let me know.

PN125

MR MURRAY: Your Honour, I intend to do it in the company's time, but anyway, yes, I will.

PN126

THE SENIOR DEPUTY PRESIDENT: I meant on your own timetable.

PN127

MR MURRAY: Yes. Thank you, your Honour.

PN128

THE SENIOR DEPUTY PRESIDENT: Preferably on the company's time though.

PN129

MR MURRAY: Yes. Thank you, your Honour.

PN130

THE SENIOR DEPUTY PRESIDENT: I've got some issue that just came in and out of my head, through an empty vessel obviously. It's gone. If I think of whatever it was, I will let you know. I will order a copy of the transcript, Mr Murray so it's available for your assistance.

PN131

MR MURRAY: Thank you.

ADJOURNED INDEFINITELY [10.49 AM]

Fair Work Commission Transcripts

AG2015/2141, Transcript of Proceedings [2015] FWCTrans 234 (14 April 2015)