AG2015/911, Transcript of Proceedings [2015] FWCTrans 532 (25 September 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052432

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DEPUTY PRESIDENT WELLS

AG2015/911

s.318 - Application for an order relating to instruments covering new employer and transferring employees

Application by Direct Access and Equipment Pty Ltd

(AG2015/911)

Boom Sherrin Drivers, Mechanical & Workshop Personnel - Victoria and Tasmania - Enterprise Agreement 2013 - 2016

Hobart

4.38 PM, THURSDAY, 10 SEPTEMBER 2015

PN1

THE DEPUTY PRESIDENT: Thank you, I'll take appearances. For the applicant?

PN2

MR LESTER: Lester is my name, Deputy President.

PN3

THE DEPUTY PRESIDENT: Thank you very much, Mr Lester.

PN4

Mr Lowe, are you with us?

PN5

MR LOWE: Yes, I am.

PN6

THE DEPUTY PRESIDENT: Lovely. Thank you. All right, I called the telephone hearing today, Mr Lester, in the hope that I can short-circuit having to ask for further information or submissions from you. As you're aware there are a number of criteria that I need to consider as part of section 318(3) of the Act. Mr Lowe, you understand that you are a transferring employee?

PN7

MR LOWE: Yes.

PN8

THE DEPUTY PRESIDENT: Okay, so what that means is that you worked previously for Boom Sherrin and that you are now conducting the same or substantially the same work as you were conducting previously.

PN9

MR LOWE: Correct, yes.

PN10

THE DEPUTY PRESIDENT: And that there has been an application made to have an order granted by the Commission which means that the Boom Sherrin Agreement from 2013 would no longer apply to you and that you would then go to a proposed common law contract. So you understand that?

PN11

MR LOWE: Yes.

PN12

THE DEPUTY PRESIDENT: So there has been the provision of some submissions from Mr Lester on behalf of your current employer, Direct Access, and the questions that I've been asking in relation to that refer to that part of the section or subsection that requires for me to determine whether a transferring employee would be disadvantaged by me making the order that is sought. So what that means is I need to determine as part of the criteria - and it's only one part of the criteria - whether if I grant for you to be taken off the enterprise agreement and to allow your new employer to place you onto a common law contract, whether that means you are going to be disadvantaged. Now that's going to require for me to probably make some findings in relation to what your entitlements currently are and what they would continue to be if you were on the EBA, and what they are likely to be if you aren't on the EBA. So having said that I have some particular questions that I wanted to ask.

PN13

Mr Lester, was there anything you wanted to say first?

PN14

MR LESTER: No thank you, Deputy President.

PN15

THE DEPUTY PRESIDENT: All right. What I can say is I am wanting to - my understanding, Mr Lester, is that the financial advantages which have been provided by yourself on behalf of the employer is that Mr Lowe will receive an increase of $69.54 per week.

PN16

MR LESTER: In base salary, yes.

PN17

THE DEPUTY PRESIDENT: Yes, and that equates to on a 38 hour week $1.83 per hour? So do you accord with that?

PN18

MR LESTER: Yes. Yes.

PN19

THE DEPUTY PRESIDENT: Okay, that there is a fully maintained job-related motor vehicle and a mobile phone?

PN20

MR LESTER: Yes.

PN21

THE DEPUTY PRESIDENT: And there was some discussion about wet weather payment but as I understand it your submission is that it doesn't really apply because they work in a workshop.

PN22

MR LESTER: Correct.

PN23

THE DEPUTY PRESIDENT: Right. Excellent. So my question of yourself, Mr Lowe, and we can do this one of two ways I suppose, Mr Lester. I was proposing that we probably just do it by submission, and that is that I ask - because I've taken no particular evidence from the employer either, that I just ask Mr Lowe some questions and if it's felt that we need to enter it into some kind of formal evidence then we can affirm him and just have him repeat those facts. But I'm not sure that we actually really need to do that. So I will just go ahead with the questions.

PN24

So, Mr Lowe in relation to the vehicle which you've been provided I understand from the paperwork that has been provided that it's operational, an operational vehicle. Is that correct?

PN25

MR LOWE: That is correct, yes.

PN26

THE DEPUTY PRESIDENT: What sort of vehicle is?

PN27

MR LOWE: A Toyota Hilux dual drive work vehicle.

PN28

THE DEPUTY PRESIDENT: Okay, is it a single cab or a dual cab?

PN29

MR LOWE: A single cab.

PN30

THE DEPUTY PRESIDENT: What do you understand to be your usage of that vehicle?

PN31

MR LOWE: I'm not entirely aware whether I have private use on it but during work hours to drive it home, which I have just at the moment. So I drive home to and from work and I also during working hours, I'm called out to breakdowns et cetera.

PN32

THE DEPUTY PRESIDENT: Okay, so you have home to work use?

PN33

MR LOWE: Yes.

PN34

THE DEPUTY PRESIDENT: And then the rest of it is just the work that you would normally do?

PN35

MR LOWE: Correct. Yes.

PN36

THE DEPUTY PRESIDENT: Yes. Prior to, when you worked for Boom Sherrin, what was the situation then?

PN37

MR LOWE: It was the same as far as I'm aware.

PN38

THE DEPUTY PRESIDENT: So you had an operational vehicle and you had home garaging of that?

PN39

MR LOWE: Yes.

PN40

THE DEPUTY PRESIDENT: Okay.

PN41

MR LOWE: Yes.

PN42

THE DEPUTY PRESIDENT: So there has been no change?

PN43

MR LOWE: No, there's no change to that. No.

PN44

THE DEPUTY PRESIDENT: Was it the same vehicle?

PN45

MR LOWE: Yes.

PN46

THE DEPUTY PRESIDENT: So it was purchased along with the business and it just came with, kind of? So it was like two men and a ute?

PN47

MR LOWE: Yes, basically.

PN48

THE DEPUTY PRESIDENT: Right. Sorry, that's just my attempt at humour. The mobile phone, what can you tell me about that?

PN49

MR LOWE: I have the full use of the phone.

PN50

THE DEPUTY PRESIDENT: Okay, so when you say full use of mobile phone you can make whatever calls you want to on it? It's unrestricted?

PN51

MR LOWE: Yes.

PN52

THE DEPUTY PRESIDENT: Yes. What was the situation with Boom Sherrin?

PN53

MR LOWE: The same.

PN54

THE DEPUTY PRESIDENT: How were your vehicle and your mobile phone provided to you when you were with Boom Sherrin? What was the understanding? Was there a policy in place?

PN55

MR LOWE: As far as I'm aware, yes.

PN56

THE DEPUTY PRESIDENT: Was there ever any issue with Boom Sherrin with you using the vehicle or the telephone in the manner that you were using it?

PN57

MR LOWE: No.

PN58

THE DEPUTY PRESIDENT: And I'm assuming the same goes for the work that you're now doing with Direct Access?

PN59

MR LOWE: No, that's no problem.

PN60

THE DEPUTY PRESIDENT: All right. Overtime, I want to talk to you about your overtime that you worked when you were with Boom Sherrin.

PN61

MR LOWE: Yes.

PN62

THE DEPUTY PRESIDENT: So you were paid an hourly rate and then you were paid overtime rates?

PN63

MR LOWE: Yes.

PN64

THE DEPUTY PRESIDENT: In relation to any additional hours you worked over 38?

PN65

MR LOWE: Yes.

PN66

THE DEPUTY PRESIDENT: Do you have an idea of what your average overtime was? Now you were on call?

PN67

MR LOWE: It varied a lot.

PN68

THE DEPUTY PRESIDENT: Yes.

PN69

MR LOWE: Like some weeks you wouldn't do overtime and other weeks you could do, you know, six, seven, eight, nine hours' overtime, depending on what the situation was.

PN70

THE DEPUTY PRESIDENT: Yes. You were on call?

PN71

MR LOWE: Technically I'm on call all the time, yes.

PN72

THE DEPUTY PRESIDENT: Yes. Yes, all right. So I understand that the nature of on call means that you are going to have peaks and troughs and some weeks you will have no overtime and some you will have, as you said, seven, eight or nine.

PN73

MR LOWE: Yes.

PN74

THE DEPUTY PRESIDENT: If you had to average it - and I know this is going to be a guess, and Mr Lester I'll hear from you in relation to that - but if you had to average it out over your work year how many hours per week would you say you would do? So if sometimes it was none, sometimes it was four, sometimes it was eight, sometimes it was two; what would you think was an average of what you would do per week?

PN75

MR LOWE: Well, I would've said the average would probably only be one, one and a half, two.

PN76

THE DEPUTY PRESIDENT: Okay, so one to two hours per week, and has that continued with your work that you've done with Direct Access?

PN77

MR LOWE: Yes. Yes.

PN78

THE DEPUTY PRESIDENT: Right, thank you for that. Is there anything else that you wanted to say to me, Mr Lowe?

PN79

MR LOWE: Not really. It's the - they're saying the base hourly - weekly hours is 38?

PN80

THE DEPUTY PRESIDENT: Yes.

PN81

MR LOWE: We're working from seven to four which equates to 42.5 hours a week.

PN82

THE DEPUTY PRESIDENT: Seven till four?

PN83

MR LOWE: Yes.

PN84

THE DEPUTY PRESIDENT: 42.5 hours?

PN85

MR LOWE: Yes.

PN86

THE DEPUTY PRESIDENT: And you get paid for 38, or currently what are you getting paid?

PN87

MR LOWE: Currently it's 38 hours a week but when I go on to a salary I'll be required to work from seven to four instead of seven till three, which works out at 42 and a half hours a week.

PN88

THE DEPUTY PRESIDENT: So I think what you've put to me is currently you work a 38 hour week.

PN89

MR LOWE: Yes.

PN90

THE DEPUTY PRESIDENT: You would work on average between one to two hours per week overtime, but your understanding is that a change to the common law contract will require you to work 42.5 hours a week for the annualised salary that has been provided. Is that correct?

PN91

MR LOWE: Yes.

PN92

THE DEPUTY PRESIDENT: Okay, thank you for that.

PN93

All right, Mr Lester?

PN94

MR LESTER: No, nothing further from me, Deputy President. Thank you.

PN95

THE DEPUTY PRESIDENT: Were you aware, Mr Lester, in relation to the changes of work hours in the contract?

PN96

MR LESTER: No I - well, I knew that they were the hours but I must admit I assumed that they were the previous hours. So that was my understanding with respect to that.

PN97

THE DEPUTY PRESIDENT: All right, okay. Nothing further you wish to say to me on that?

PN98

MR LESTER: No thank you.

PN99

THE DEPUTY PRESIDENT: All right. Look, I know that this has taken some time and I know that's probably been, Mr Lester, because you had to get instructions and do all sorts of things. It is my proposition that I will try and get the decision down within the next few working days so that at least it's known, and so you can let your client know, Mr Lester, that hopefully within a week or so there should be an answer to it.

PN100

MR LESTER: Thank you.

PN101

THE DEPUTY PRESIDENT: All right, anything else Mr Lowe?

PN102

MR LOWE: No, that's all. Thank you.

PN103

THE DEPUTY PRESIDENT: All right. Thank you very much.

PN104

MR LESTER: Thank you.

PN105

MR LOWE: Thank you.

PN106

THE DEPUTY PRESIDENT: We stand adjourned. Thank you.

ADJOURNED INDEFINITELY [4.53 PM]