C2015/4450, Transcript of Proceedings [2015] FWCTrans 396 (1 July 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052071

---

COMMISSIONER ROBERTS

C2015/4450

s.418 - Application for an order that industrial action by employees or employers stop etc.

SITA Australia Pty Ltd T/A SUEZ Environment Recycling & Waste Recovery

and

Transport Workers' Union of Australia
(C2015/4450)

Sydney

10.09 AM, THURSDAY, 25 JUNE 2015

PN1

THE COMMISSIONER: Good morning, I'll take appearances, commencing with the applicant company.

PN2

MR J DYSTER: Thank you, Commissioner, my name is John Dyster. I'm the Director of Human Resources for SUEZ Environment and with me is Mr Storm COX who is the Residential Collections Manager for the south of Sydney.

PN3

THE COMMISSIONER: You must have a peaceful company. I think it's the first time you've appeared before me, isn't it?

PN4

MR DYSTER: It is, Commissioner, yes.

PN5

THE COMMISSIONER: Yes.

PN6

MR DYSTER: Yes, we do try and keep the peace.

PN7

THE COMMISSIONER: Things change. Mr Guy?

PN8

MR A GUY: Thank you, Commissioner. If the Commissioner pleases, with me at the Bar table is Mr ARJONILLA.

PN9

THE COMMISSIONER: Yes, thank you. Mr Dyster?

PN10

MR DYSTER: Thank you, Commissioner. I don't think that there is a dispute between the parties in relation to the fact that industrial action occurred on the morning of 23 June in the form of a stop work meeting at the Lucas Heights, Campbelltown and Wetherill Park sites.

PN11

THE COMMISSIONER: Can I cut to the chase here - - -

PN12

MR DYSTER: Sure.

PN13

THE COMMISSIONER: I will only deal with historical matters, however recent, as they may affect current action or future probable action, okay?

PN14

MR DYSTER: Okay.

PN15

THE COMMISSIONER: If you want relief for historical alleged wrongs, you go somewhere else.

PN16

MR DYSTER: Yes.

PN17

THE COMMISSIONER: Okay?

PN18

MR DYSTER: No, I understand that, Commissioner.

PN19

THE COMMISSIONER: Okay.

PN20

MR DYSTER: In saying that, I'll cut to the chase, too. In terms of that, as I understand by way of background there was that industrial action that occurred but I guess, Commissioner, what I would like to do is just take you to the afternoon of Tuesday and it is by way of background that leads to our application.

PN21

THE COMMISSIONER: That's all right, I'm not trying to tell you not to tell me.

PN22

MR DYSTER: I understand, Commissioner, and Mr Guy has also pointed out to me about, you know, the nature of the 418 application and the fact that you are seeking relief, you know, for action that is occurring to stop, but certainly what we're asking for, Commissioner, under 418 and in our orders, is that we're seeking that the application that we make stops any industrial action that would reoccur, so to stop occurring in the future or from being organised, as may be the case.

PN23

THE COMMISSIONER: All right.

PN24

MR DYSTER: The matter that occurred on Tuesday is the subject of some discussions on the day and further discussions that would occur between the company, the union and the employees in relation to that matter, but what occurred, Commissioner, and I will just take you straight to that, is in relation to the matter of the St George drivers which is in the later part of our application, which is those drivers as a part of their enterprise agreement work a 9.6 averaged hours job and finish arrangements.

PN25

Those arrangements factor into wages, an annualised overtime component that allows for additional payment to be made at the end of the financial year where actual work hours have exceeded annualised overtime hours. On Tuesday, the drivers sought assurances from their site manager that they would receive overtime payments for any time worked over 9.6 hours from their start time. The drivers were directed to undertake work and complete collection for the day, that is, job and finish, however, refused to do this and returned to the site with over a thousand residents not having their bins collected.

PN26

This action by the St George drivers resulted in further industrial action of the type set out in section 474.2 and we seek assurances set out in dot point 3 of our draft orders that employees will be available for work and perform work as required in accordance with the 9.6 hours job and finish set out in the Enterprise Agreement, Schedule 1, Rates of Pay, Transport and Collections, Start and Finish Times.

PN27

Those, Commissioner, as I said, we have received no assurances. In fact, we've been told categorically that drivers will not be working more than a total of 9.6 hours when clearly, the annualised overtime, drivers are paid 9.6 hours per day on an annualised weekly basis that allows for them to work greater than 9.6 or lesser than 9.6, to an average of 9.6 hours over the course of the year and for additional hours to be paid to them if those are worked at some stage after the end of the financial year.

PN28

There is also provision in the annualised arrangements for where there are matters such as mechanical failures that are occurring in trucks where drivers are being asked to work over an average of 9.6 hours on a regular basis, to be paid quarterly. However, the manner in which the drivers have told us that categorically they will not be working more than 9.6 constitutes a threat of continuing industrial action.

PN29

THE COMMISSIONER: Is this about DriveCam or not?

PN30

MR DYSTER: I don't think so, Commissioner.

PN31

THE COMMISSIONER: The opening - - -

PN32

MR DYSTER: The opening part, as I said - - -

PN33

THE COMMISSIONER: The second ground - - -

PN34

MR DYSTER: Yes.

PN35

THE COMMISSIONER: Yes.

PN36

MR DYSTER: As you said, Commissioner, I'm cutting to the chase, something, you know, that occurred on Tuesday. That's not old ground to go over. We think that essentially what we've done - - -

PN37

THE COMMISSIONER: Well, it's interesting ground, given that I'm arbitrating about DriveCam in a few days' time.

PN38

MR DYSTER: We could provide you with a very good policy, Commissioner, that might help you in that area that has been done in consultation with the union but obviously it's not something that is the subject of this dispute. As I said, the industrial action that occurred.

PN39

THE COMMISSIONER: Well, you can hand up anything which you think may be relevant. You can also hand up a copy of the agreement, if you have one.

PN40

MR DYSTER: I have a - - -

PN41

THE COMMISSIONER: This has all been done in a rush, this file, to get it on.

PN42

MR DYSTER: It has, yes. I've got my own copy of the agreement but I do have the relevant part of the agreement, the SITA TWU Operations Agreement 2014, in relation to the start and finish time section.

PN43

THE COMMISSIONER: That will do me for the moment. If there's anything additional, Mr Guy will draw my attention to it. So to use that trite phrase again, cutting to the chase, if you go to 418.1(a), I take it no action is currently happening?

PN44

MR DYSTER: No.

PN45

THE COMMISSIONER: You say that it's threatened, impending or probable?

PN46

MR DYSTER: Correct.

PN47

THE COMMISSIONER: And you say, by extension that it's being organised?

PN48

MR DYSTER: Correct.

PN49

THE COMMISSIONER: All right, I'll leave it at that. Is there anything more you want to put to me? You can have another chance later.

PN50

MR DYSTER: I think so.

PN51

THE COMMISSIONER: Yes, all right.

PN52

MR DYSTER: Thank you, Commissioner.

PN53

THE COMMISSIONER: We'll do a bit of ping-pong on this. Mr Guy?

PN54

MR GUY: Thank you, Commissioner.

PN55

THE COMMISSIONER: Now tell me about DriveCam.

PN56

MR GUY: Commissioner, I actually don't have any instructions on what the issue with respect to DriveCam is. The instruction that I have received from my official is that there was a dispute of some nature. I don't wish to comment on the action that may or may not have occurred. I have no instructions to concede that but what I do know is that I have assurances from my official that insofar as there was any dispute, it has been resolved.

PN57

Now it is news to me about the overtime with respect to that and I must apologise, I don't have instructions on that. I was unaware of that by the nature of the application but notwithstanding that, Commissioner, there are some sort of fundamental threshold issues that we would sort of like to address before we kick on with the application proper.

PN58

THE COMMISSIONER: Yes.

PN59

MR GUY: The order that is sought deals with - - -

PN60

THE COMMISSIONER: What do you mean, before we kick on with the application proper, we're kicking?

PN61

MR GUY: I think we are kicking but perhaps as a matter of continuing to kick on with the application but the order that is sought is against a number of employees. I think it totals about a hundred. I think it's 97, to be exact. My understanding is those employees have not been served with the notices, nor is there an application for substituted service on foot for those employees. That is of course a concern of the union, as it is an order that seeks to impose restrictions on those employees.

PN62

THE COMMISSIONER: So it's a very obvious problem. Let's go straight to it. I'm going to avoid this "cutting to the chase" phrase. It's becoming boring. If we go to the orders sought, there are orders sought against the Transport Workers Union in the first dot point.

PN63

MR GUY: Yes.

PN64

THE COMMISSIONER: Then there is an order sought against each of the employees.

PN65

MR GUY: Yes.

PN66

THE COMMISSIONER: Then, further, against each of the employees. If you're telling me that the employees should be named and should be served, you're right - - -

PN67

MR GUY: Yes.

PN68

THE COMMISSIONER: - - - before any orders are sought against them. It's highly unlikely in these proceedings I'll issue orders against individuals, right?

PN69

MR GUY: Yes.

PN70

THE COMMISSIONER: Now, the question for you is do you represent those individuals or just the union? It's a curly one, isn't it?

PN71

MR GUY: It is indeed, Commissioner.

PN72

THE COMMISSIONER: It's deliberately specific, Mr Guy. I mean, the Transport Workers Union is a strong union. It represents its members very well, but I find it difficult to think that you would come along representing the union itself and not your members.

PN73

MR GUY: Indeed. Insofar as they are members, Commissioner, I do represent them. Obviously there are restrictions on me representing somebody who is not a member, but - - -

PN74

THE COMMISSIONER: Well, those of them who are your members.

PN75

MR GUY: Yes.

PN76

THE COMMISSIONER: And we don't know who they are.

PN77

MR GUY: I could perhaps the map the yard, but that might take some time.

PN78

THE COMMISSIONER: Yes, okay. All right. Go on.

PN79

MR GUY: So, Commissioner, there is that issue with respect to the fact that no substituted service has been effected on the employees.

PN80

THE COMMISSIONER: And I uphold your objection to that.

PN81

MR GUY: Thank you, Commissioner. With respect to the application, as I made mention, there is no submission that would be made on the action that is alleged to have occurred on 23 June. The issues that we have with respect to the order is that it further makes mention of employees at sites where it appears there was no industrial action occurred, particularly in relation to the Shoalhaven Service Centre and the Penrith Service Centre.

PN82

In addition to that, we would say - and, once again, it is my instruction - insofar as there is a dispute, that dispute has been resolved. That's my instruction from the official. As I previously said, it is news to me about some sort of - I think for fear of putting a label on it that might not be entirely correct, some sort of overtime ban with respect to the 9.6 hours. This is news to me and I'm unaware of what exactly the basis of that is.

PN83

My understanding is there was something that occurred on 23 June. The parties have been in discussion about it and the matter has been resolved. Insofar as my organiser is concerned, it is certainly not being organised. With respect to what appears to be a request for some sort of undertaking that no further action will occur, well, I will of course, as I always say in these situations, inform my official that protected industrial action isn't to occur and shouldn't occur, but unfortunately I can't speak for 97 members if they - - -

PN84

THE COMMISSIONER: We are separating two boxes at the moment.

PN85

MR GUY: Yes.

PN86

THE COMMISSIONER: But you do come, I presume, armed with the authority to give undertakings on behalf of the union.

PN87

MR GUY: I do indeed, Commissioner.

PN88

THE COMMISSIONER: Otherwise, someone else should have come.

PN89

MR GUY: Indeed. I will, as always, instruct our officials that they shouldn't engage in unprotected industrial action. That is the extent of the undertaking that I've made before this Commission.

PN90

THE COMMISSIONER: Let's be careful of words here. Without making any admissions, right - - -

PN91

MR GUY: Yes.

PN92

THE COMMISSIONER: - - - as to actions you may or may not have taken as a union, if one goes to the draft orders, you would dispute that you're organising industrial action, one takes it, but if you take out the word "organising", would you be happy to give me an undertaking that the union will refrain from organising or recommending the organisation of any unprotected industrial action; taking out the offending little bits of the opening paragraph "at any site run - - -"

PN93

MR GUY: Sorry, what point are we at? I'm terribly sorry, Commissioner, I've lost it.

PN94

THE COMMISSIONER: The first - point 5. Sorry, I know everyone is a bit on the run today about this. Point 5 of the application.

PN95

MR GUY: Yes.

PN96

THE COMMISSIONER: Going to "the Transport Workers Union must".

PN97

MR GUY: Yes.

PN98

THE COMMISSIONER: If one took out the perjorative term "organising", are you armed with authority to give an undertaking to the Commission that the Transport Workers Union will not organise or recommend the organisation of any unprotected industrial action by employees of the company?

PN99

MR GUY: I'm not, Commissioner.

PN100

THE COMMISSIONER: Pardon?

PN101

MR GUY: Commissioner, with the greatest of respect, I - - -

PN102

THE COMMISSIONER: Every time anyone tells me "with the greatest respect", I fear what is coming. Go on.

PN103

MR GUY: I cannot make that undertaking on behalf of my union insofar as the union - - -

PN104

THE COMMISSIONER: All the undertaking would mean is that you comply with the law.

PN105

MR GUY: Of course. The union always endeavours to comply with the law, but the issue is - and our primary position is - that the action isn't occurring, threatening, impending, probable to - threatening, pending, probable or being organised. That's my instructions, Commissioner.

PN106

THE COMMISSIONER: Do you give me an undertaking that none of the things - I'll extract some sort of undertaking out of you eventually, one hopes. You undertake not to do any of the things which are in that opening paragraph of the orders sought, in terms of unprotected industrial action? It's not a difficult undertaking to give.

PN107

MR GUY: I respect that, Commissioner, but obviously you are requesting that the union - or that I make an undertaking on behalf of the union that - - -

PN108

THE COMMISSIONER: As the fellow who stood up and said he represents the union in these proceedings.

PN109

MR GUY: Yes, indeed. Commissioner, the union is committed to complying with the law insofar as it relates to unprotected industrial action, but the issue that I'm grappling with today is the fact that it hasn't been made out to be that the action is threatening, impending or probable or is being organised. As such, it's my instructions to oppose the order.

PN110

THE COMMISSIONER: What I am trying to do - I understand that - is to draw you towards the light that if such an undertaking was given to me, that would make the issuing of any order difficult for the company.

PN111

MR GUY: I understand that, Commissioner.

PN112

THE COMMISSIONER: Right. If you're not going to give such an undertaking on behalf of the union, putting aside your individual members, then it's possible to intuit there might be something on foot. Do you want to think about this for a moment? Perhaps make a phone call or - - -

PN113

MR GUY: I may make a phone call, Commissioner.

PN114

THE COMMISSIONER: Okay.

PN115

MR GUY: Thank you.

PN116

THE COMMISSIONER: I'm adjourned for 10 minutes.

SHORT ADJOURNMENT [10.27 AM]

RESUMED [10.53 AM]

PN117

THE COMMISSIONER: Mr Guy?

PN118

MR GUY: Thank you, Commissioner - and thank you for the extended indulgence. I have received instructions that the organisation, that being the Transport Workers Union of Australia, New South Wales branch, will agree to an undertaking that we will not procure or organise industrial action with respect to SUEZ.

PN119

The only reservation that we have with respect to that is that we don't intend for such an undertaking to be some sort of lengthy open‑ended matter to which we may be held for some time, so we would somewhat seek your - - -

PN120

THE COMMISSIONER: I am not asking you for one until the end of time. I am asking you for one in relation to the specific matters in the application.

PN121

MR GUY: Right. Certainly with respect to DriveCam, I believe which is identified in the application, we certainly would make that undertaking. If there is any disputation with respect to DriveCam, my instructions are that we will of course, as is open to us, file a 739 application to deal with that dispute.

PN122

THE COMMISSIONER: Well, DriveCam is before me on 30 June for two days.

PN123

MR GUY: It is indeed. I believe Mr Warne will be with you with Linfox, yes.

PN124

THE COMMISSIONER: Yes, with Linfox. That will no doubt set some parameters.

PN125

MR GUY: Indeed. I understand that Mr Warne - I was on the phone to him just before and I think there may even be a reference to SITA in that proceeding.

PN126

THE COMMISSIONER: All right. We will go to the company now. What do you say about this?

PN127

MR DYSTER: Thank you, Commissioner. We do appreciate the undertaking in relation to industrial action at SUEZ Environment, specifically around the DriveCam, but I note that the application also talks about "being available for work and perform work as required by SUEZ Environment", which particularly I'm interested in the 9.6, so this is - - -

PN128

THE COMMISSIONER: In compliance with the agreement.

PN129

MR DYSTER: Correct.

PN130

THE COMMISSIONER: You did mention DriveCam specifically, Mr Guy, but your undertaking extends to not recommending, organising or procuring industrial action in relation to the other matters that are considered in the application?

PN131

MR GUY: Commissioner, it extends - insofar as my instructions are - that this allegation just isn't occurring. I have not the faintest idea. I have talked with the official a number of times about it and specifically asked him about it.

PN132

THE COMMISSIONER: Well, if you haven't been doing it, you're not going to do it, are you?

PN133

MR GUY: No. Insofar as it relates to the DriveCam issue - and I would stress not until the end of time, as well - there is the undertaking insofar as it relates to the present dispute that we will not engage in any overtime bans.

PN134

THE COMMISSIONER: Okay. Thank you. That being said, Mr Dyster, I will just confirm what I said earlier. I do not intend to make any orders against individuals in the light of the fact that they haven't been properly served and/or given an opportunity to be heard. The undertaking from Mr Guy would appear sufficient for today's purposes, unless you can convince me otherwise.

PN135

MR DYSTER: Commissioner, if I can just clarify - I mean, as I said, we appreciate the undertaking, but in relation to the overtime bans, Mr Guy did suggest that, you know, in the application we hadn't addressed that. Certainly we had brought that up in relation to point 8 and point 9 of the grounds.

PN136

THE COMMISSIONER: You did. He has given a wider undertaking than that first proffered. Cutting to the chase, what I am going to do is accept the undertaking from the TWU. It is recorded on transcript and I accept their word. The file will not be closed. The matter will be adjourned.

PN137

418 applications cannot remain open forever, but it will remain open for, say, the next seven days or so. Liberty to you to apply at short notice to bring the matter back on if something happens, because I do understand that the union is unable to give an undertaking on behalf of each individual, so there is still scope for something possibly to happen and you can bring it back before me. If it is very urgent, we can do it by telephone.

PN138

MR DYSTER: Okay. Thank you, Commissioner.

PN139

THE COMMISSIONER: There being nothing further today, these proceedings are adjourned.

ADJOURNED INDEFINITELY [10.58 AM]