RE2015/100, Transcript of Proceedings [2015] FWCTrans 86 (2 March 2015)

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TRANSPORT WORKERS' UNION OF AUSTRALIA
and
GREENFREIGHT SERVICES PTY LTD
(RE2015/100)

PN1

THE COMMISSIONER: Yes, good morning. I’ll take the appearances in this matter so for the TWU?

PN2

MR COGHILL: Commissioner, Daryl COGHILL and Howard SMITH.

PN3

THE COMMISSIONER: Right, thank you. I understand we have representatives for the employer on line, so perhaps they could identify themselves.

PN4

MR POWTER: Yes Commissioner, it’s Powter, initial A, from the Australian Industry Group for Greenfreight and also on the line should be MR Paul BOCQUET as well as Jude LOWE from the company.

PN5

THE COMMISSIONER: Thank you, Mr Powter. So who’s on the line from the company?

PN6

MR POWTER: Jude L-o-w-e and Paul B-o-c-q-u-e-t.

PN7

THE COMMISSIONER: Okay, thank you.

PN8

MR POWTER: Just one thing, Commissioner, I’m having trouble hearing as it’s not very clear. Is the microphone quite close?

PN9

THE COMMISSIONER: It’s going to be difficult for the microphone to be closer to me and then you won’t hear the TWU, that’s the issue. Can you hear me now?

PN10

MR POWTER: Kind of, Commissioner. If I have any problems, I’ll let you know.

PN11

THE COMMISSIONER: Yes, all right. That would be good. That would be good. Thank you. All right. The application has been made by the TWU. The application specifies the application was made on 21 January and it identifies that the permit holder that is seeking entry is Mr Coghill. It identifies the employer as Greenfreight Services Pty Ltd, 2 Chapel Street, Wodonga, 3690. It identifies the date of entry as 27 January 2015 but there may be some amendment to that, I assume, given when we are having the hearing. The suspected contraventions relate to the Road Transport (Long Distance Operations) Award 2010 and in particular clause 13 Minimum Rates of Pay and Classifications; clause 14 Allowances; clause 19 Superannuation; and clause 26 Public Holidays, and the non-member records which access is sought relates to the employees at Woolworths DC Barnawartha, and they are the time and wages records and the contract of employment. Finally, the grounds and reasons for the application are:

PN12

1. Information from our members is that should the company find out who has requested union assistance, their employment will be terminated;

2. If records are sought of just members of the union, this would have an adverse effect on their ongoing employment with Greenfreight Services Pty Ltd; and

3. That the TWU believes employees are being paid less than that prescribed in the Road Transport (Long Distance Operations) Award 2010.

PN13

So that’s what the application says. It’s the TWU’s application so if the TWU want to explain the matter, then that would be appropriate.

PN14

MR COGHILL: Thanks very much, Commissioner. The TWU makes the application clearly as outlined in the application based on the information that we have been provided, both by members and discussions that we’ve had with non-members working at Greenfreight, indicate that the rates of pay for a number of legs out of the distribution centre at Barnawartha North are below award rates of pay. Those rates of pay seem to be inconsistent with their classifications as indicated on the top of the payslips that certainly we have seen.

PN15

The employees there are employed, I believe, Commissioner, as long distance drivers, therefore the rates and terms and conditions that they are subject to are those prescribed in the Road Transport (Long Distance Operations) Award 2010 and what we say is that the rates being paid are certainly not the minimums, and the company seems to be moving employees from a cents per kilometre to hourly rates of pay seemingly at will without notification as required and prescribed by the award and they are doing it without the agreement of the employees concerned. This actually happened in November last year.

PN16

The TWU makes the application based on the fact that conversations that were had at the DC with the local manager revolve around the threats to employment should the person or persons be identified of seeking the assistance of the TWU to investigate the wage claim.

PN17

In order to allay those fears by the members, the TWU have sought the application so as we can see whether the issue is being applied across the board or whether our members are being disadvantaged against non-member rates of pay and so we can establish whether this is a broad thing or just a local thing. So based on that, Commissioner, that’s more or less why we are seeking the application.

PN18

I would also like to make mention there it’s just one small amendment to our application, Commissioner, and that’s around the right of entry date. As you indicated in your opening remarks, we put the 27th on the application because we were hoping that we might have got this hearing before. As it is, if the Commissioner grants us approval that date will be amended to suit shortly.

PN19

THE COMMISSIONER: Okay. Now - - -

PN20

MR BOCQUET: Sorry, Commissioner, is it possible to - we are only getting every second word essentially. It’s Paul Bocquet speaking. Is it possible if Melissa is able to ring us back and we can get a better line? I’m sorry but we are only picking up every second word.

PN21

THE COMMISSIONER: Okay.

PN22

MR POWTER: I’m also the same, Commissioner. I can vaguely make out what was said, but perhaps it might be better to do a second call if we could.

PN23

THE COMMISSIONER: Do you think it’s worth trying? Yes, we’ll try to reconnect you to see if we can get a better line.

PN24

MR POWTER: Okay, thank you.

PN25

THE COMMISSIONER: Yes, we will go off record.

OFF THE RECORD [9.17 AM]

ON THE RECORD [9.18 AM]

PN26

THE COMMISSIONER: So we’re back on transcript. Can you hear me now, Mr Powter?

PN27

MR POWTER: I can, Commissioner. It’s a little better, I can hear you, yes.

PN28

THE COMMISSIONER: Yes and, Ms Lowe(sic), can you hear me?

PN29

MR BOCQUET: Yes, that’s better as well. Thank you.

PN30

THE COMMISSIONER: Okay, all right now. I’ll just try and summarise what Mr Coghill has said. So firstly he said that his suspicions in respect of the suspected contraventions arise from discussions that he’s had with members and also with non-members, and he has also seen payslips, and based on that discussion and the payslips he believes that the rates of pay in some cases are below the award and that the work is inconsistent with the classifications on the payslip, and based on his observations and discussions he believes that the drivers concerned are the long distance drivers who are employed under the Road Transport (Long Distance Operations) Award. He says that he has reason to believe that employees have been moved from cents per kilometre arrangements to hourly rates without notification or agreement of the employees, and he also believes that threats have been made by a manager to employees that their jobs would be at risk if their complaint was identified, and finally, it’s been said that the proposed date of entry was originally 27 January in the hope that this matter would be dealt with prior to 27 January but the union would obviously be seeking a different date today.

PN31

Is that a fair summary of the matters that you raised?

PN32

MR COGHILL: Yes, Commissioner.

PN33

THE COMMISSIONER: Okay, thank you. All right.

PN34

MR POWTER: Thank you, Commissioner. I got all of that without a problem.

PN35

THE COMMISSIONER: Okay, good. Thank you.

PN36

Now at this point I’ll give the company the opportunity to say anything they might want to say at this point, so Mr Powter, do you want to say anything?

PN37

MR POWTER: Certainly, Commissioner. Just by way of background I should also inform the Commissioner there has been a degree of dialogue between the TWU and the company, particularly between the organiser and the company representative Jude Lowe, to discuss this matter and that took place firstly back in 23 December there was a meeting, and there’s been a commitment made by the company to review, to look into the matters which the union have raised regarding the alleged contravention.

PN38

So at the outset the company still maintains that position that it’s prepared to look at, to ascertain whether or not there is any underpayment or not. We don’t believe there is an underpayment or not. We don’t believe there is an underpayment, but there’s been a degree of exchanges of emails between the parties trying to lock down a date to meet, and there’s not just been one email, there’s been quite a few emails, and I understand there’s actually been a confirmed meeting time arranged between the parties which is going to take place on Thursday 5 February.

PN39

So, from a company perspective we’re not being obstructionist or difficult with regards to enabling the union to review their members’ time and wages records. They have the right to do that under the Act provided they follow the necessary protocols regarding right of entry and the like, and we’ve facilitated a meeting date to be scheduled on 5 February.

PN40

In relation to this application, I note that the - I won’t deal with the reasonable suspicion aspect but the issue about the grounds and reasons for the application we might just say, from our position it might be a bit premature at this stage to grant such an order, particularly given the background to the dispute.

PN41

The allegations that there has been some threat made by some management towards employees is rather concerning. We don’t believe that there has been. In any event the employees are protected by the general protection provisions under the Act with regards to any form of adverse action for raising questions regarding the time and wages records, and our wish would be that we would certainly not be allowing any member of management to make any threats towards any employee that they could lose their job should they make an enquiry regarding their time and wages records. You know, that’s the right under the Act for the employees and we recognise that right.

PN42

I don’t wish to get too technical, Commissioner, but it requires production of non-member records, but when you look at the nature of the Act, we believe that by producing member records that will enable the union to conduct their investigation into the alleged suspected breach. Production of non-union members - we don’t know who are members and who are non-members, that’s another problem that we have - but with the production of union members, that will give the union enough material to enable them to review how and why and the way in which people are being paid and to satisfy their grievance in that regard.

PN43

The application also seeks for a contract of employment or employment contracts from non-union members and it’s questionable whether or not that type of document will fall within the scope of the Act from which such documents can be requested. I only raise that as a preliminary issue, Commissioner, because we would argue that a contract of employment is not a Fair Work instrument; it’s not a modern award; it’s not an enterprise agreement; it’s not a workplace determination and it’s also not a Fair Work Commission order.

PN44

Moving forward, Commissioner, like I said, commitment has been made by the Company to meet with the union on 5 February. The company is quite prepared to discuss and consult with the union regarding their grievance. As to the way in which the people are paid, as I understand it, it’s a dispute over whether or not they’re worse off if they’re paid cents per kilometre as opposed to hours in overtime. But the company certainly is not an operation which seeks to underpay its employees. It recognises the minimum obligations under the award and on that basis, we would continue to discuss with the union the nature of their grievance, and given what this order is seeking, we’d say at this stage, might be a little bit premature, particularly given that we’ve got open communication that’s been taking place for some time and a meeting scheduled for 5 February. So I’ll leave my outline at that, at this stage, Commissioner.

PN45

THE COMMISSIONER: Thanks, Mr Powter. That’s helpful. So perhaps you could assist me, Mr Coghill, by explaining when it was that you had - when was it, I don’t mean the exact day, when was it that you had the discussion with the members where you were told about the threat?

PN46

MR COGHILL: Yes, Commissioner. The TWU have been in discussions with Greenfreight for some period of time. Like Mr Powter has alluded to, this really became a major issue around about May/June last year and then subsequently we have been having, or I have been having discussions with the company through the then HR Manager Linda Bone about rectifying this issue and addressing the pay issues. We were making a fair bit of headway with Linda and in the end, Commissioner, Linda was starting to accept our position and we were moving towards a position where we felt confident about having a good outcome for our members and indeed, all the employees out at the DC.

PN47

During the month of November, the company saw fit to change the way the employees were paid for particular runs and paying them by an hourly rate of pay as opposed to a CPK rate. That hourly rate of pay was well more in line, I wouldn’t say consistent, but more in line with the Road Transport and Distribution Award 2010 to which the employees are not employed under. So there was a definite change and when employees raised the issue around the rate change and then I believe that’s about when the questions really started coming towards the employees about their employment and our involvement.

PN48

THE COMMISSIONER: Thank you. Can we just identify a couple of things here? Are all of the people you whose records you are seeking to look at, are they full time, part time or casual employees?

PN49

MR COGHILL: We would be seeking the records of both, Commissioner.

PN50

THE COMMISSIONER: So there are some casual drivers as well as some full time or part time drivers, is that correct?

PN51

MR COGHILL: I believe so, Commissioner. I believe that there’s full time and casual employees.

PN52

THE COMMISSIONER: Okay, full time and casual is it?

PN53

MR COGHILL: Yes. There’s no provision in the long distance for part time.

PN54

THE COMMISSIONER: No, okay. All right. So you believe that there are some casual employees involved as well as some full time?

PN55

MR COGHILL: Yes, Commissioner.

PN56

THE COMMISSIONER: Yes, and do you have any idea of the number of persons? Because you’re talking about the drivers, aren’t you?

PN57

MR COGHILL: Yes, yes. I’m not really sure. That's a figure that I’ve never really discussed with the company about the number out there. Look, I would believe it would be probably about 30.

PN58

THE COMMISSIONER: Okay. Can I just check with the company, whether what has just been said is correct, that is are there both full time and casual drivers involved and would the number of drivers affected, if the order was granted, would that number be approximately 30?

PN59

MR POWTER: Commissioner, that would be something which Jude might be able to answer there.

PN60

THE COMMISSIONER: Yeah, thank you.

PN61

MR POWTER: So Commissioner, the question was how many drivers are involved?

PN62

THE COMMISSIONER: Yes, how many drivers involved and are there both full time and casual drivers involved?

PN63

MS LOWE: Yes, we employ a combination of both full time and casual and the number of employees we would have would be 30.

PN64

MR POWTER: Approximately 30 drivers, Commissioner. As to the break up, what percentage full time workers, casual?

PN65

MS LOWE: It would be probably 90 per cent: 10 per cent.

PN66

MR POWTER: About 10 per cent casual.

PN67

THE COMMISSIONER: Okay. Thank you. So the next thing I just wanted to deal with, can I ask the TWU, it’s been raised by Mr Powter that there’s a meeting scheduled for 5 February.

PN68

MR COGHILL: Yes, Commissioner.

PN69

THE COMMISSIONER: Are you seeking to exercise right of entry to inspect records? Obviously you’ll have to issue the appropriate notice and so on, but would your intention be to do that after the meeting of 5 February or before the meeting of 5 February?

PN70

MR COGHILL: Given time frames, Commissioner, I would say, because the 5th is only Thursday next week, and it’s only four working days from today, I would say that it would be after.

PN71

THE COMMISSIONER: What I would like to propose is the following - and this is my preliminary views, so I am open to be persuaded to a different course of action - but my interim view would be that the company and the union should have the opportunity at the meeting on 5 February to see if, on a voluntary basis, the company provides sufficient information to the union at the meeting and discusses the issue in a way that reaches a resolution and satisfies the union. So, I think it would be appropriate for the company to have that opportunity and for the union to exercise that opportunity on 5 February.

PN72

If following the meeting on 5 February the union wishes to persist with this application, then my inclination would be to grant the application and allow the union, provided it issues the appropriate notice, to exercise access to member and non-member records. I’d be inclined to confine that to the issues of the time and wages records and I think finally, just in respect of the points that have been raised by Mr Powter, I think the issue of access to the employment contracts, I don’t wish to make any particular finding or ruling about the matter about whether they are records that can be accessed or can’t be accessed. To me, the appropriate thing would be to have access to the time and wages records and if following that the TWU wants to make some sort of further application, we could consider that at that time. In my view, I don’t think we need to determine that contract of employment issue at this point.

PN73

Secondly, in respect of the point about general protections, I can’t see what purpose the provision in 483AA would have, what purpose that provision would have if there was a view that the right of general protections meant that there would be no basis for unions and employees to be concerned about the potential consequences of revealing the identity of members’ records in respect of whom they’re interested.

PN74

In my view, of course adherence with the general protections provisions are very important and I make absolutely no observations or findings about this particular company. There’s no basis for doing so. I’m not in any way suggesting this company would take adverse action against members, but it is quite understandable why members may from time to time be concerned about revealing their identity and I think that the matters raised by Mr Coghill give reasonable basis for the issuing of the certificate should that prove to be necessary.

PN75

So that’s my view. Have the meeting on 5 February. See if the matter can be sorted out through that process. If it can’t, then I’d issue the certificate necessary and it would be restricted to the time and wages issue and of course, the date of the right of entry would have to be specified.

PN76

So can I just ask first whether that approach would be acceptable to the TWU?

PN77

MR COGHILL: Yes, Commissioner, that would be.

PN78

THE COMMISSIONER: And Mr Powter?

PN79

MR POWTER: Yes, Commissioner, that approach is appropriate.

PN80

THE COMMISSIONER: Okay, so that’s the approach that we’ll take. So the TWU should inform my chambers in writing, with a copy to the company and Mr Powter, if the meeting of 5 February doesn’t resolve the matter sufficiently from the point of view of the TWU and in that correspondence, the TWU should also indicate the proposed date for the entry for the purpose of inspecting the records and will issue the necessary decision following that.

PN81

All right, so unless there’s anything further, I think that concludes this matter. Okay, all right, that concludes the matter. Thank you.

ADJOURNED INDEFINITELY [9.42 AM]

Fair Work Commission Transcripts

RE2015/100, Transcript of Proceedings [2015] FWCTrans 86 (2 March 2015)