B2019/27, Transcript of Proceedings [2019] FWCTrans 55 (5 March 2019)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                       1056802

DEPUTY PRESIDENT BARCLAY

B2019/27

s.240 - Application to deal with a bargaining dispute

Metro Tasmania Pty Ltd T/A Metro

 and 

Australian Rail, Tram and Bus Industry Union

(B2019/27)

Hobart

4.28 PM, MONDAY, 14 JANUARY 2019

PN1

THE DEPUTY PRESIDENT: I call on what is now B2019/27. It is an application by Metro in respect to an issue that has arisen regarding trainers doing some bus operating. The appearances are the same?

PN2

MR D DILGER: Thank you, your Honour.

PN3

THE DEPUTY PRESIDENT: Thank you. However, for the other side, Mr Dilger. You're for the applicant in 27.

PN4

MR D DILGER: Yes, your Honour.

PN5

THE DEPUTY PRESIDENT: Mr Nichols, Mr Chisholm, you're for the respondent?

PN6

MR J NICHOLS: Yes.

PN7

THE DEPUTY PRESIDENT: That is, the union.

PN8

MR NICHOLS: Yes.

PN9

THE DEPUTY PRESIDENT: All right. Mr Dilger, I'll come straight out with it: I think it's declaratory only. I think that for two reasons. The first is the EA is not in yet.

PN10

MR DILGER: Yes.

PN11

THE DEPUTY PRESIDENT: Secondly, there is not an actual dispute about anybody purporting - sorry, that will actually affect anybody right now. It's declaratory with a view to the future. I'm not sure I can do it, but if you want to tell me I can - I also want to say something to you guys; it's a bit late.

PN12

MR NICHOLS: In relation to that, this has been brought up a number of times. Up until a few months ago, I wasn't the secretary. I was dealing with the bus operator EA and we brought it up there a number of times, and Stacey Hogarth was the general manager of people and safety at the time.

PN13

THE DEPUTY PRESIDENT: Yes.

PN14

MR NICHOLS: Every time we brought it up we kept on getting back the answer, "The trainers are going over to admin and once I've discussed it with them, then I'll talk it over in the EA." It was brought up in the admin EA with my predecessor and they both had concerns - Steve Knight and Jamie Cole were doing the admin EA at that time and they both wanted clarifications.

PN15

They said that they couldn't see a problem, but they wanted a fence built around it so the admin in general couldn't go out and drive, and that hadn't been forthcoming. That still hadn't been forthcoming up until I went and seen - - -

PN16

MR CHISHOLM: Sue‑Ellen Taylor.

PN17

MR NICHOLS: - - - Sue‑Ellen Taylor and said, "Has anyone got any information on this?" So it had been followed up in a number of meetings, but it hadn't been followed through from Metro's side.

PN18

THE DEPUTY PRESIDENT: The difficulty you've got is it's in the access period, so it's out there for a vote.

PN19

MR NICHOLS: Sorry, sir, even with that they still hadn't changed the wording in the current one or the proposed one. The current one still states that they can only drive in the case of an emergency so trips aren't dropped. That hasn't been changed, even in the one that they are proposing. If you had an agreement, wouldn't you think they would turn around and change a clause in there to say that this is how it is, except for these four people or whatever, and that hasn't been entered. That has been my argument with it; that they haven't done that.

PN20

THE DEPUTY PRESIDENT: Tell me what the difficulty is from your side.

PN21

MR NICHOLS: Sorry?

PN22

THE DEPUTY PRESIDENT: Let's forget what things say.

PN23

MR NICHOLS: Yes.

PN24

THE DEPUTY PRESIDENT: What is the problem from your side? What is it that you don't want to happen or that you do want to happen?

PN25

MR NICHOLS: We don't want to have admin employees that can go out and drive - - -

PN26

THE DEPUTY PRESIDENT: You don't want non‑drivers driving.

PN27

MR NICHOLS: Pretty much, as long as it's rostered work. They can drive if there is an emergency. There is a number that can.

PN28

THE DEPUTY PRESIDENT: Yes.

PN29

MR NICHOLS: But I don't want them to be able to have rostered work where they know they're going to be driving that every time.

PN30

THE DEPUTY PRESIDENT: We're back to the old demarcation days, Mr Dilger.

PN31

MR DILGER: Your Honour, that sounds like we're in furious agreement.

PN32

THE DEPUTY PRESIDENT: That's what I wondered.

PN33

MR DILGER: It's quite clear - now, just to give you some background, your Honour, the admin employees are everyone who you would ordinarily think would be admin employees, like HR and finance people. The new part about all of this - - -

PN34

THE DEPUTY PRESIDENT: Is the trainers.

PN35

MR DILGER: - - - is the trainers. Now, they would be the only people who would be undertaking the rostered bus work; the bus driving duties. It's pretty much agreed, your Honour, that people who are not trainers - let's call them the other admin people - would only be by exception. There is no intention for any of those people to be driving buses, but absolutely for the trainers it would turn on its head.

PN36

All of a sudden you have this group who effectively need to keep driving a bus for the sake of maintaining their, I suppose, currency. They're the only people who Metro want to be driving and they want to just roster them like they've done normally. Now, if that was agreed - - -

PN37

THE DEPUTY PRESIDENT: Early in the morning.

PN38

MR DILGER: Yes.

PN39

THE DEPUTY PRESIDENT: So that the bus operators under the operations agreement, if I can call it that, are the ones doing the driving in the main.

PN40

MR DILGER: In the main.

PN41

THE DEPUTY PRESIDENT: But is there a problem with that?

PN42

MR NICHOLS: Well, at the moment there are driver trainers.

PN43

THE DEPUTY PRESIDENT: I follow that.

PN44

MR NICHOLS: So their main job is as drivers, right, and they do train. There are four people who are involved - - -

PN45

THE DEPUTY PRESIDENT: It looks the emphasis of that is going to change.

PN46

MR NICHOLS: Yes, but my - - -

PN47

THE DEPUTY PRESIDENT: And that's by agreement though, isn't it?

PN48

MR NICHOLS: Sorry?

PN49

THE DEPUTY PRESIDENT: That's by agreement with the four trainers, is it not? The change of emphasis, I mean.

PN50

MR NICHOLS: Not at the moment, because they still are waiting on information. Up until last week when they were speaking to Blair and myself, they don't know whether or not they're going to sign to go over to the admin, because they still haven't got the information - enough information to give them the - - -

PN51

THE DEPUTY PRESIDENT: Hang on. Nobody has made a scope application? The notice of representational rights issued a long time ago with the trainers in the admin.

PN52

MR NICHOLS: Yes, but they - - -

PN53

THE DEPUTY PRESIDENT: And then you bargained on that basis.

PN54

MR NICHOLS: Yes, but - - -

PN55

THE DEPUTY PRESIDENT: Now it's out to vote.

PN56

MR NICHOLS: - - - Metro have not got back to the trainers to tell them what they are actually going to be paid. They still don't know what their payments are going to be, so they don't know whether or not they're going to say yes to it.

PN57

THE DEPUTY PRESIDENT: I just don't understand this.

PN58

MR DILGER: Your Honour, we say they do.

PN59

THE DEPUTY PRESIDENT: It's in the EA, surely.

PN60

MR DILGER: It's in the EA. There are a group of - I mean, it's set out with the normal broadbanding, it's Mercer, your level 1 to 5; you fit in there and that's what you get.

PN61

THE DEPUTY PRESIDENT: Have they been told where they're at under the new one?

PN62

MR DILGER: Yes.

PN63

MS McCANN: They were all advised on Friday.

PN64

MR NICHOLS: We spoke to them last week and they didn't know anything about it, so - - -

PN65

THE DEPUTY PRESIDENT: But as of Friday they've been told where they sit - - -

PN66

MS McCANN: As of Friday, with the exception of the Launceston one who was advised this morning.

PN67

THE DEPUTY PRESIDENT: Right, but they have been told where they sit in the - I'm assuming there is a classification structure.

PN68

MR DILGER: Yes, 1 to 5.

PN69

THE DEPUTY PRESIDENT: And they're told where they're at?

PN70

MS McCANN: Yes, they have been.

PN71

THE DEPUTY PRESIDENT: Told what their salary is and they understand that they're going to be doing some driving but that will be between 6.00 and 9.00, and that the emphasis has changed somewhat to training from driving.

PN72

MS McCANN: That's correct.

PN73

THE DEPUTY PRESIDENT: Right.

PN74

MR DUNSBY: As far as we are understanding, sir, they still don't have a position description either.

PN75

THE DEPUTY PRESIDENT: Yes.

PN76

MR DUNSBY: The relief trainers still don't have a position description. They have a proposed one, but we haven't got one yet that has come through.

PN77

MR DILGER: Your Honour, if I could just maybe - - -

PN78

THE DEPUTY PRESIDENT: Could I just ask you, what do you propose I do? This thing is for vote this week, isn't it, or next week?

PN79

MR DILGER: Wednesday.

PN80

THE DEPUTY PRESIDENT: Two days away?

PN81

MR DILGER: Yes.

PN82

THE DEPUTY PRESIDENT: What do you propose I do about all of that? Don't you just - they just vote it down if they don't work?

PN83

MR NICHOLS: If they vote it down, what I'm worried about is what happens to their positions because they've taken out a level 7 - sorry - yes, level 7 out of the drivers' EA, which is what they currently are now. That has been withdrawn, so if they vote it down then they get back down to a level 6, which is a driver. They won't be a trainer, they will go straight back to a driver. If they refuse it, their position is gone.

PN84

THE DEPUTY PRESIDENT: Well, that's not right, is it? You're just back to continuing to negotiate.

PN85

MR NICHOLS: At the moment if you have a look in the proposed EA for the drivers - - -

PN86

THE DEPUTY PRESIDENT: I haven't seen either the old or the new, but, anyway, go on.

PN87

MR NICHOLS: But that level 7 is gone and that's what we were talking with them on - - -

PN88

THE DEPUTY PRESIDENT: It isn't gone though, is it? What I'm getting at is if the EA doesn't get up, you go back to a bargaining meeting, don't you?

PN89

MR DILGER: Your Honour, what happens is - you had levels 1 to 7 in the bus ops, right? The proposal is, with the new one, it's levels 1 to 6. Those trainers are voting on a proposed admin agreement.

PN90

THE DEPUTY PRESIDENT: Yes.

PN91

MR DILGER: If it gets up, they're under a new EA.

PN92

THE DEPUTY PRESIDENT: That's right.

PN93

MR DILGER: They haven't lost anything.

PN94

THE DEPUTY PRESIDENT: And if it doesn't get up - - -

PN95

MR DILGER: If it doesn't get up, they stay.

PN96

THE DEPUTY PRESIDENT: They still haven't lost anything.

PN97

MR DILGER: No. We're not even out to vote on the bus ops and then that would be a matter of negotiation. We would be continuing - - -

PN98

THE DEPUTY PRESIDENT: There is more negotiation on the admin one, anyway.

PN99

MR DILGER: On the bus ops one.

PN100

THE DEPUTY PRESIDENT: Well, if the admin doesn't get up - - -

PN101

MR DILGER: Correct.

PN102

THE DEPUTY PRESIDENT: - - - you're back to bargaining, anyway.

PN103

MR DILGER: Yes, we're back on two foots.

PN104

THE DEPUTY PRESIDENT: Two foots.

PN105

MR DILGER: Two feet.

PN106

THE DEPUTY PRESIDENT: Yes, right. That's right though, isn't it? We're being slightly facetious, but it is right, isn't it? If it's voted down, nothing changes.

PN107

MR DILGER: Yes.

PN108

THE DEPUTY PRESIDENT: If it's up, from what we know now they know where they fall within the relevant salary band and classification under the proposed admin EA, but there is an issue about the PD.

PN109

MR DILGER: Mm‑hm.

PN110

THE DEPUTY PRESIDENT: Well, that wouldn't be engaged - ordinarily PDs aren't engaged at the level of the EA. That's usually within the classification structure of the EA once it's in. What is the difficulty with - what's lacking in the PD? There's not one at all?

PN111

MR CHISHOLM: There's not one at all that we're aware of.

PN112

THE DEPUTY PRESIDENT: That's because of the change of emphasis from driver/trainer to trainer/driver. We're at a higher level than that with the EA, aren't we?

PN113

MR DILGER: We are, but if it came down to these things being determined, I think we could all just work over the next day furiously. If it was agreed that the trainers aren't going to be prevented from actually driving buses and if it would be additionally confirmed that we don't want the non‑training admin people to drive buses and take bus operator roles, I would be fairly confident we could make that undertaking.

PN114

Equally, if they were requiring of the position description, I'm pretty sure given the significance of it we could turn our minds to that by tomorrow and have that resolved, as well.

PN115

THE DEPUTY PRESIDENT: Yes. I don't think I can do anything about the PD. What I was going to do, regardless, was because of the way in which Mr Dilger made his submissions about admin staff being classical admin staff, not driving, I was going to order a copy of the transcript and all the parties would get it, so that if there was ever an issue about it you can come along with this piece of evidence to say, "Hey, look, the way in which this document is to be construed is on the basis of what Barclay DP was told" on whatever day today is, because you made it really clear - and he has done it again; he has done it twice now.

PN116

It seems to me that having said that in open court and recorded, that that will be used to construe what the EA means if there is any - - -

PN117

MR DILGER: What the understanding - - -

PN118

THE DEPUTY PRESIDENT: - - - ambiguity about it.

PN119

MR NICHOLS: That's what I would have thought with their opposed one. They would have at least put a clause in that mentioned the trainers specifically, but they have just gone exactly the same - word for word with the previous one.

PN120

THE DEPUTY PRESIDENT: Yes.

PN121

MR NICHOLS: The issue I've got is that means that if we allow admin trainers to drive, then that opens up the gates for admin to be able to go out and drive - if they haven't got a full‑time job as admin, they can turn around and put them on for three days in admin and two days as a driver or something like that.

PN122

THE DEPUTY PRESIDENT: You have just heard what they have said.

PN123

MR DILGER: Yes.

PN124

THE DEPUTY PRESIDENT: The other thing is it's all just too late. Firstly, I don't think I can do what you want me to do because it is purely declaratory at this stage. The access period has been going for almost all of the month.

PN125

MR DILGER: It has gone past the minimum - - -

PN126

THE DEPUTY PRESIDENT: Yes. It's for vote in two days and it's just too late. If you wanted to try and stop all this, maybe you could have if you had done something earlier. What I would have had in mind would have been a scope application if you were that concerned to get the trainers out of the admin and back to the operator, because there are negotiations since, I think, September. Is that right? Since August, I think, from memory, about the scope. That was done and dusted with the NERR number 2.

PN127

MR DILGER: Yes.

PN128

THE DEPUTY PRESIDENT: That was by consent, so the scope was sort of set in concrete unless and until somebody came along and tried to fix that. In any event, I'm not really seized of any of that. What I will do though is - I note what Mr Dilger has said about the position descriptions and that they propose to have something to you tomorrow that deals with what I will now call a trainer/driver. There are four, is there?

PN129

MR DILGER: Yes.

PN130

MS McCANN: Yes.

PN131

THE DEPUTY PRESIDENT: A PD for those four as to what it is they'll be doing.

PN132

MR DILGER: Yes.

PN133

THE DEPUTY PRESIDENT: There has been the submission in open hearing that the EA is not to be construed as meaning that traditional admin staff will be doing any driving. Mr Dilger has heard me say that that would be binding on them, not a question of construction at a later date if that should ever arise.

PN134

Where I think we're at is the vote will take place and if it gets up, it gets up, but at least you've got what has been said to me today. If it doesn't get up, you're back to bargaining and it might be that they will put something in the proposed admin EA to reflect what has been said to me, but it's too late to do that now. All right. I'm simply going to adjourn - - -

PN135

MR DILGER: Your Honour, could I just ask one question?

PN136

THE DEPUTY PRESIDENT: Sorry, yes. Go on.

PN137

MR DILGER: Whilst I'm happy to be on record, I would also just like Mr Nichols to be on record to confirm that provided it's just the trainers doing the rostered duties, there is no actual objection to the trainers doing that. It's really that traditional admin that you've got the concern with.

PN138

MR NICHOLS: I have a problem with the way it's written in there where it says "admin drivers" or "admin doing rostered driving", because that is not the way that this works. They said originally when they had a talk with Ms Hogarth that as long as there is a fence built around it where it will not be used for admin to drive - - -

PN139

MR DILGER: Okay, but - - -

PN140

THE DEPUTY PRESIDENT: That's not quite an answer.

PN141

MR DILGER: Yes.

PN142

THE DEPUTY PRESIDENT: What he wants to know is, is there a concession or agreement that the trainer drivers will do some rostered driving?

PN143

MR NICHOLS: I have to, because it's too late, as you said, so - then I give consent to it.

PN144

THE DEPUTY PRESIDENT: Well, just on that, if you don't drive for months and months or years and years, and you purport to train, what sort of trainer are you going to be? For the purposes of the record, the respondents are nodding their heads. Really what Mr Dilger is saying is don't play ducks and drakes with him and I'm inferring from what I've heard, Mr Dilger, that the trainer/drivers - as I'm now describing them because of the change in emphasis - will do some rostered driving between 6.00 and 9 am. Essentially that will be agreed between the drivers and Metro, won't it.

PN145

MR DILGER: Yes. We haven't specifically said 6.00 and 9.00, but that's the anticipation of hours.

PN146

THE DEPUTY PRESIDENT: Yes.

PN147

MR DILGER: But it may be earlier than that depending on, you know, the roster.

PN148

THE DEPUTY PRESIDENT: That's right. That will be by agreement with them, won't it?

PN149

MR DILGER: Yes, there will be a roster or however that generally works.

PN150

THE DEPUTY PRESIDENT: Yes, the provisions as to - - -

PN151

MR DILGER: Rostering.

PN152

THE DEPUTY PRESIDENT: Will apply, yes. Did you want to say anything about it?

PN153

MR NICHOLS: No.

PN154

MR CHISHOLM: I've just got one small matter.

PN155

THE DEPUTY PRESIDENT: Yes.

PN156

MR CHISHOLM: Mr Dilger was diligent in getting us to correct some of our work. I just note that we haven't been able to find a signature, either electronic or by hand, on this submission that he put in; this one, the F11 application that we've just been discussing.

PN157

MR DILGER: That's actually correct, your Honour. I neglected to do that. I'm happy to amend that as required. I'm here. I don't think anyone has been under any misapprehension - - -

PN158

MR CHISHOLM: No, no. It was that you were kind enough to get us sorted out and I thought it would be wise to have it signed and done properly.

PN159

THE DEPUTY PRESIDENT: You don't need to sign it. If you read what's written there on the form, it says if you haven't got an electronic signature, type your name. It's sufficient to type your name in the "signature" field.

PN160

MR CHISHOLM: Yes, but in mine it's not in there.

PN161

THE DEPUTY PRESIDENT: No, it's next to it.

PN162

MR CHISHOLM: Yes, it's next to it under "Name" but it's not in the signature field though.

PN163

THE DEPUTY PRESIDENT: Do you really care about that?

PN164

MR CHISHOLM: No, I was just - he was very particular with us.

PN165

THE DEPUTY PRESIDENT: Mr Dilger, can you sign this, please. Thank you.

PN166

MR DILGER: Thank you, your Honour.

PN167

THE DEPUTY PRESIDENT: There we go.

PN168

MR CHISHOLM: Thank you.

PN169

THE DEPUTY PRESIDENT: He has now signed the original application which is on file. The only order I make is that I will adjourn this application to a date to be fixed. That means there is no date, but it might be that you - depending what happens on Wednesday and the result of the ballot - might want to come back. I don't think you can use that application, but I just want to keep it alive in case there might be a reason why you want to come back on this one or some other one.

PN170

MR DILGER: Thank you, your Honour.

PN171

THE DEPUTY PRESIDENT: Yes, all right. I will direct that a transcript of the matters in respect to application B2019/27 be prepared and circulated to the parties. I will otherwise adjourn that application and I will adjourn the Commission.

ADJOURNED TO A DATE TO BE FIXED                                        [4.49 PM]