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C2002/ 752 , Transcript of Proceedings [2002] AIRCTrans 537 (20 February 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883

TRANSCRIPT OF PROCEEDINGS


O/N VT02370
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER TOLLEY

C2002/ 752 

MAYNE LOGISTICS-ARMAGUARD

and

TRANSPORT WORKERS UNION
OF AUSTRALIA

Notification pursuant to Section 99 of the Act
of a dispute re change in working conditions

MELBOURNE

11.30 AM, TUESDAY, 5 FEBRUARY 2002

PN1

MR R. IRONMONGER: I appear with P. CUMMINS and J. PASTORE from Mayne Nickless Logistics.

PN2

MR C. FENNELL: I appear on behalf of the Transport Workers Union, together with three delegates from the site, M. CURTIS, A. ACHT and J. COLIC.

PN3

THE COMMISSIONER: Mr Ironmonger.

PN4

MR IRONMONGER: Thank you, Commissioner. I do apologise to the Commission for the error which we first made in notifying this dispute. Unfortunately my secretary did put Armaguard on it which made some confusion amongst the parties. This matter was previously listed before the Commission on 21 January, but because of that error the Commission kindly adjourned the matter.

PN5

Sir, this is a dispute between Mayne Nickless and the TWU, concerning the operation of an enterprise agreement which is print number PR903433, and I have provided the Commission a copy of that enterprise agreement. Basically, sir, the dispute concerns a change in the way the company rosters its employees. The operations, as I am instructed, is that the company delivers steel from Port Kembla to Melbourne and from Westernport to New South Wales and the drivers actually work from the depots in Melbourne and Sydney and do a changeover at Tarcutta.

PN6

Now, the agreement as currently situated allowed for a roster from Sunday to Friday. Now, because of the operational requirements of BHP, they have asked the company to implement a new roster working from Sunday to Thursday. Now, the employees were notified of the changes required back on 11 December 2001, by memoranda, and there were discussions with the delegates in both New South Wales and Victoria. My instructions are - well, the interstate operations concern five drivers at any one point in time.

PN7

Now, because of the change required, the company can now operate between Sunday and Thursday with five trucks. In the past it was Sunday to Friday with a roster which allowed one employee a night off during the week. Now, we say the enterprise agreement allows us to make the changes required and we say we rely on the hours of work clause, which is clause 45. Now, because the discussions have taken place, the union said well the status quo must remain. So presently the company has no requirement for drivers to operate Friday nights, and because of an interpretation of the current agreement those drivers are being paid for that particular shift, when they have not been required to work it.

PN8

Now, I have got to say that the dispute is at the Victorian end, the New South Wales drivers, from my instructions, don't have a problem and they were complying with the request. And also I am instructed, sir, that although the status quo was in place, my instructions on Monday, 28 January, the employee drivers refused to work that particular night, claiming it was a public holiday and therefore didn't have to work. On my instruction, that would have been unprotected action. So that is sort of the outline of dispute, Commissioner.

PN9

THE COMMISSIONER: Yes, thank you. Mr Fennell.

PN10

MR FENNELL: Thank you, Commissioner. Our position in this dispute is that we agree that BHP are changing the way they want to do business with the company, but in discussions we have had with Mr Terry Hargraves who is the line haul manager for the business, he did indicate that it was not BHP that was saying that the vehicles had to go out Sunday night through to Thursday. Our belief is that the operation hinges around taking Saturday out of the roster where there is - the trucks are not unloaded and reloaded on the Saturday.

PN11

The trucks - the operational ..... actually locally, they are unloaded on the Monday through to the Friday and then they are reloaded for the line haul that night. Our position is that doing the work through Monday to Friday night still allows the company to operate and meet their requirements for the contract with BHP. The issue of the Sydney drivers actually being in acceptance of the company's change centres around the fact that up in the New South Wales end of the business they do a rotating, where one week they are on local deliveries and the next week they are on the line haul changeover.

PN12

By doing that roster it effectively gives them a long weekend every second weekend. We think the company is being a bit - they have hinted to us that through fatigue management it is not their ideal position, they will be looking to go to single operations where they will have people that just drive locally and do the day shift and then they will have people who do the line haul of a night similar to the Melbourne operation. We say the company should really be notifying the Sydney end of that during all this.

PN13

But getting back to the dispute here at the Melbourne end, our position is actually included in clause 40 of the agreement. We have got - we did have an agreement for rosters that were included as appendix A of the agreement and clause 40 says:

PN14

Additionally it is agreed that employees engaged under this agreement will be available to perform ...(reads)... required as per appendix A.

PN15

And then it goes on:

PN16

From time to time there will be occasion when the nature of the line haul operation will vary in order ...(reads)... unreasonably withheld.

PN17

When this originally came out there was no discussions with the drivers at all, it was the company just printed out new rosters and informed the drivers that there will be a change. Our membership took objection to that and felt that we could deliver the company what they needed through negotiations rather than them just imposing change on without consulting. The reason why the drivers are taking the position that they have is that by being the only ones that are required to work Sunday night through to Thursday night, that will be effectively mean that by only having the five drivers where now they have six, and it is correct that one is rested every night and there is only the five trucks are going.

PN18

But by everybody being required to go out on the Sunday night, effectively when it comes to family life at the weekends they will be unable to actually have a social drink on Saturday nights which is where most people have their family functions and with that they need to be zero/zero to go out on the Sunday afternoon, so that will take them out of the social life. I think I have covered all our positions, Commissioner.

PN19

THE COMMISSIONER: Yes. Thank you. Anything further, Mr Ironmonger?

PN20

MR IRONMONGER: Well, Commissioner, we say that this award agreement is based on the Long Distance Drivers Award and it is quite common for employees under that particular award. There is no - - -

PN21

THE COMMISSIONER: Yes, but there is a conflict because clause 40 and clause 45 isn't there?

PN22

MR IRONMONGER: I would not say it is a conflict. We say that from time to time there will be changes and we are invoking one of those changes. Now, we say - - -

PN23

THE COMMISSIONER: Well, there is a conflict because at clause 40, it says it is to be done in consultation with the drivers, okay. In clause 45, it says, this agreement, the company's position will prevail. There is conflict.

PN24

MR IRONMONGER: Yes, Commissioner. We say on 11 December we notified our requirement to change and gave a cooling off period of some four weeks to let people understand what the ramifications were. Now, at the moment the company - - -

PN25

THE COMMISSIONER: Mr Ironmonger, whether you gave four weeks or four years, notification of change to provide a cooling off period, it does not mean you have reached agreement does it?

PN26

MR IRONMONGER: I understand that, Commissioner. We do not say it is unreasonable though, it is just part of the industry.

PN27

THE COMMISSIONER: Do not start introducing other issues into the equation.

PN28

MR IRONMONGER: Well, that is where the parties stand, Commissioner.

PN29

THE COMMISSIONER: There is a clear conflict between clause 40 and 45, and it is not for this Commission to interpret awards and agreements. And I am surprised that when the parties agreed on the document that conflict wasn't dealt with.

PN30

MR IRONMONGER: We are in the Commission's hands, Commissioner. That is why we have notified - - -

PN31

THE COMMISSIONER: No, no, the Commission is in the hands of the parties. You own the agreement, not the Commission. And the parties can do one of two things: they can agree for the Commission to interpret the agreement in respect of the application of it pursuant to section 170LW and amend it accordingly, or you can both tell me - politely of course - that I have got no authority.

PN32

MR IRONMONGER: Well, we would say, Commissioner, we have notified under section 99 which would give the Commission the power.

PN33

THE COMMISSIONER: It does not give the power - it does not give the power to interpret an award.

PN34

MR IRONMONGER: No, we are not asking you to interpret it, we are just saying to enforce our rights under the agreement that - - -

PN35

THE COMMISSIONER: But which right do you want me to enforce, your requirement to reach agreement with the drivers, or your requirement to just ride roughshod over them?

PN36

MR IRONMONGER: We don't say we are riding roughshod over them. We are actually - - -

PN37

THE COMMISSIONER: Well, they are my words. They my words, but I mean - you know, which clause do you want me to say I should - - -

PN38

MR IRONMONGER: Perhaps we could use your good offices to try and resolve the matter between the parties.

PN39

THE COMMISSIONER: Thanks, Mr Ironmonger. Mr Fennell, what have you got to say about that?

PN40

MR FENNELL: I can see the conflict in the two clauses. I was one of the appearances involved in putting this agreement, and it actually - the reason for it actually having the clause relating to the rosters included in the agreement was actually - there had been a long history of industrial disputation for the contract.

PN41

THE COMMISSIONER: It is all right for me to be smart after the event about conflict. I mean you people formulated the agreement, not the Commission.

PN42

MR FENNELL: Yes. We would be happy, if the Company is in agreement, to use your abilities and knowledge to try to come to some sort of settlement through conference. The members have actually based all their issues here solely on acceptance of, yes, the Company has been put in a unique situation by BHP, but we are saying to the Company: okay, we can still deliver what you require contractually by doing it on the days we say they should be done, which is on the Monday night to Friday night, but we would be quite prepared to have some discussions in conference if the Company is prepared to.

PN43

THE COMMISSIONER: I think Mr Ironmonger indicated that.

PN44

MR IRONMONGER: Yes.

PN45

THE COMMISSIONER: The Commission will adjourn into conference.

NO FURTHER PROCEEDINGS RECORDED