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C2004/ 352 , Transcript of Proceedings [2004] AIRCTrans 5109 (24 December 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

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

TRANSCRIPT OF PROCEEDINGS


O/N 9574

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

C2004/ 352 

TRANSPORT WORKERS (MIXED
INDUSTRIES) AWARD 2002

Application under section 113 of the Act
by Transport Workers Union of Australia
to vary the above award to reflect rates
of pay

MELBOURNE

10.32 AM, THURSDAY, 9 DECEMBER 2004

THESE PROCEEDINGS WERE CONDUCTED BY VIDEO LINK AND RECORDED IN MELBOURNE

PN1

MR M. BOWER: I appear on behalf of the Transport Workers Union of Australia.

PN2

MS E. WATT: I appear on behalf of the Timber Merchants Association.

PN3

MR R. MARASCO: I appear on behalf of the Australian Industry Group.

PN4

MR R. IRONMONGER: I appear on behalf of the Victorian Employers Chamber of Commerce and Industry.

PN5

THE COMMISSIONER: I should say, Mr Ironmonger, if you would prefer to sit whenever you appear in my hearing room I am more than happy for you to do so.

PN6

MR IRONMONGER: Thank you.

PN7

THE COMMISSIONER: Yes. In Adelaide.

PN8

MR M. SHEEHAN: I appear on behalf of Business SA.

PN9

THE COMMISSIONER: Yes, Mr Bower.

PN10

MR BOWER: Thank you, Commissioner. As you have outlined this is a section 113 application to vary the Transport Workers (Mixed Industries) Award 2002. The variation essentially seeks to do two things. The first of that is insert the rates of pay for grade 7 and 9 which are a straight lift from the Transport Workers Award 1998, known generally as the '98 Award, and also provide at grade 6 for a twin steer or articulated concrete mixer with a 6 cubic metre bowl and over and at this stage I might just indicate that I think in the actual application it indicates a gross vehicle mass which I believe is wrong and I would seek to have that application amended to remove that reference to a GVM exceeding 15 tonne. If the Commission pleases.

PN11

THE COMMISSIONER: So there is no capacity?

PN12

MR BOWER: I am just under instruction that that may not be the correct gross vehicle mass for that size.

PN13

THE COMMISSIONER: Well, wouldn't it be better to establish whether or not gross vehicle mass is a component of the descriptor?

PN14

MR BOWER: Yes, that may well be the case, Commissioner.

PN15

THE COMMISSIONER: And if so, to ensure that the correct gross vehicle mass is nominated?

PN16

MR BOWER: Yes, Commissioner.

PN17

THE COMMISSIONER: Well, so what you are really saying is that you seek leave to amend the application so that item 1 seeks to vary the rates of pay clause so as to incorporate the grade 6 classification in respect of the concrete mixer with six metre bowl and over and four or more axles, with the gross vehicle mass in respect of that vehicle prescribed by the 1998 Award.

PN18

MR BOWER: I guess the difficulty there is, Commissioner, that there is no equivalent provision in the '98 Award.

PN19

THE COMMISSIONER: I see.

PN20

MR BOWER: That is a new classification and I guess - - -

PN21

THE COMMISSIONER: I see. So it is only item 2 that is a straight lift?

PN22

MR BOWER: That is correct.

PN23

THE COMMISSIONER: All right. So you don't know what the vehicle mass of this type of vehicle actually is typically?

PN24

MR BOWER: Look, I was instructed that this was the order - I am kind of appearing at the end of a long process - that that may not be the correct tonnage and I am seeking instructions from one of our organisers as to what the correct gross vehicle mass is for that type of vehicle.

PN25

THE COMMISSIONER: I think we will just take that on notice.

PN26

MR BOWER: Thank you, Commissioner.

PN27

THE COMMISSIONER: Typically there is a gross vehicle mass.

PN28

MR BOWER: Yes. I actually understand that it may be in the region of 22-1/2 tonnes, but as I say, I am waiting confirmation from someone with a little more knowledge of vehicle mass.

PN29

THE COMMISSIONER: All right. Well, let us just take on notice that that is subject to determination of what the appropriate vehicle mass is.

PN30

MR BOWER: Thank you, Commissioner. To get some other things out of the road first, on 26 November I sent by registered post copies of our application and the notice of listing and a draft order to the parties listed on an order for substituted service issued by the Commission on 22 November and I would just seek to tender a statement as to service to that effect.

PN31

THE COMMISSIONER: Thank you.

EXHIBIT #A1 STATEMENT AS TO SERVICE

PN32

MR BOWER: Further to that statement of service, Commissioner, on 2 December I sent by registered post a copy of the amended notice of listing to the same parties and I would tender that as well.

EXHIBIT #A2 COPY OF AMENDED NOTICE OF LISTING

PN33

MR BOWER: Thank you, Commissioner. At this point I would indicate, Commissioner, that I have had some brief discussions with the other parties regarding this application. Mr Sheehan in particular has indicated to me earlier in the week that he would require more time to consult with his members about the application. I have also had the same indications from the parties present - who are here today. Also I have had a discussion with the parties regarding the application and that it appears to me that there really are two separate parts of the application, one of which is the insertion of the grades taken from the '98 Award. I don't see too many problems with that and I have had some indications that it may be - there may be no problem from the other parties, depending on what their members say about it.

PN34

However, the second one, I think, requires a little work and certainly some more discussions between the parties. Given those discussions I think that Mr Sheehan will probably be seeking an adjournment and so may some of the other parties in the room and I am not opposed to any adjournment on that basis, mostly so that I can have further discussions with the parties. If the Commission pleases.

PN35

THE COMMISSIONER: Ms Watt.

PN36

MS WATT: Thank you, Commissioner. I have had a discussion with Mr Bower this morning about this application and insofar as point 2 of his application is an application to effectively lift classifications for grades 7 and 9 from the main Transport Workers Award, we have no objection to the award - the Mixed Industries Award being varied as sought. As far as part 1 of the application goes I would certainly not object to an extension of time. I don't think that in actual fact that variation to the award that would affect my members, but I would have to probably check that. Thank you.

PN37

MR MARASCO: Commissioner, we have sent out a members' advice to our members covered by the award and we have asked for responses by 22 December. We would then seek to have a couple of weeks to have a members' meeting or to discuss it with the members. I have discussed that with Mr Bower and suggested that the matter be adjourned until some time next year. If the Commission pleases.

PN38

MR IRONMONGER: Well, Commissioner, we have no objection to the second part of the application going ahead and I am in the Commission's hands when - once that - it is following the '98 Award which is typically what happens in this award. With respect to the first part of the application I would feel more comfortable if I could have further discussions with the TWU on applications made to vary the '98 Award and insert that classification in that award as well before it goes into Mixed Industries because I don't want to put the cart before the horse. Generally speaking the '98 award has been the award which is varied and other classifications have flowed through. I would hate to see an argument that we, being a minor part of the industry, approve a classification which will have effect on the major part of the industry, that major part being involved.

PN39

I don't think it is a back door application by the TWU in that respect, but I would feel more comfortable with the major parties in the '98 award were aware of this application, if that makes sense.

PN40

THE COMMISSIONER: Thank you, Mr Ironmonger. Mr Sheehan, did you hear that?

PN41

MR SHEEHAN: Commissioner, I can confirm that we have had some discussions with Mr Bower. We are in the process of consulting with our membership and we have asked members to get back to us by the end of next week. So our position is probably much the same as AIG, I think, who suggested an adjournment of a couple of weeks. I will certainly get in touch with the union on the Monday, which is, I think - on the 20th to finalise our position in relation to this application.

PN42

THE COMMISSIONER: Thank you, Mr Sheehan. Well, it appears that the most appropriate thing to do is to adjourn the matter until mid-January.

PN43

MR BOWER: Yes, I am pleased with that, Commissioner.

PN44

THE COMMISSIONER: Mr Ironmonger, there is not much I can do really about the fact that this application is made to vary the Mixed Industries Award rather than the 1998 Award. Would you accept that?

PN45

MR IRONMONGER: I understand that, Commissioner, yes, sure. I will have further discussions with the TWU and perhaps persuade them to make an application somewhere.

PN46

THE COMMISSIONER: Yes. I understand the logic of what you are saying - - -

PN47

MR IRONMONGER: Yes.

PN48

THE COMMISSIONER: - - - that the Mixed Industries Award tends to draw, as indeed item 2 of the application does, its inspiration, if you like, from the 1998 Award. But, as I say, procedurally it is not a matter over which I have any control unless an application was made for me to cease further hearing or determining the application on the grounds of the public interest. So I will fix a date in mid-January for the further hearing of the matter.

PN49

MR IRONMONGER: Commissioner, just while we are on this matter, with the ..... classification do you see any impediment with the National Wage Case in principle? Is it a new vehicle in the industry, whether it should be work valued or - - -

PN50

THE COMMISSIONER: I would like - I would rather hear from you about that. Well, does anybody have any preference for a date? Are there any difficulties that confront anybody say in the week beginning the 10th?

PN51

MR BOWER: No difficulties with the union.

PN52

MS WATT: No, Commissioner.

PN53

THE COMMISSIONER: Thank you. Mr Sheehan.

PN54

MR SHEEHAN: Unfortunately my schedule in January for the first - for January itself is a little bit unsure at the moment, sir, because I might be on leave, but I am quite happy for you to schedule a conference for the week commencing the 10th. If I can't attend someone else could attend in lieu of me, so there are no problems about that.

PN55

THE COMMISSIONER: All right. I didn't actually have in mind scheduling a conference. I had in mind setting it down for further hearing, but if you want a conference as a separate proceeding I am not adverse to that, but not necessarily in lieu of the hearing, but in addition to the hearing.

PN56

MR BOWER: Commissioner, that may be something that we can discuss amongst the parties. I certainly would envisage that the next time we meet would be for hearing rather than conference.

PN57

THE COMMISSIONER: Yes. All right. Look, what I will do is put it towards the end of that week and advise the parties that if they think it would be useful to have a conference I would be amenable to that, but that should take place before the date of the hearing and I will leave it in the hands of the parties to seek such a conference if they deem it useful and I will list the matter for 10 am on 13 January.

PN58

MR SHEEHAN: What time was that, again, sorry?

PN59

THE COMMISSIONER: 10 am.

PN60

MR SHEEHAN: Thank you.

PN61

THE COMMISSIONER: Which would be 9.30 am Adelaide time; is that suitable to you, Mr Sheehan?

PN62

MR SHEEHAN: I am happy with that, sir, thank you.

PN63

THE COMMISSIONER: One thing I will do is direct that as soon as practicable the TWU advise the parties and the Commission of the gross vehicle mass proposed to be included in the classification referred to in item 1 of the application.

PN64

MR BOWER: Yes.

PN65

THE COMMISSIONER: And that that should be done no later than 22 December.

PN66

MR BOWER: Certainly, Commissioner.

PN67

THE COMMISSIONER: Thank you. Is there anything else. Very well, we will adjourn. Thank you.

ADJOURNED UNTIL THURSDAY, 13 JANUARY 2005 [10.45am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 STATEMENT AS TO SERVICE PN32
EXHIBIT #A2 COPY OF AMENDED NOTICE OF LISTING PN33