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Australian Industrial Relations Commission Transcripts |
354 
, Transcript of Proceedings [2005] AIRCTrans 418 (18 February 2005)
1800 534 258
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 10427
COMMISSIONER DANGERFIELD*
C2004/ 354
s.99 - notification of an industrial dispute
TransAdelaide
and
Australian Rail, Tram and Bus Industry Union
(C2004/ 354 )
Rail Industry (TransAdelaide) Award 2002
ADELAIDE
10.46AM, TUESDAY, 08 FEBRUARY 2005
Continued from 26/11/2004
Hearing continuing
PN1
MR P WELSBY: I appear on behalf of TransAdelaide. With me is MS L GENTILCORE.
PN2
MS K VAN BARNEVELD: I appear on behalf of the Rail, Tram and Bus Union and with me MR R HANCOX.
PN3
THE COMMISSIONER: Thank you, Ms Van Barneveld. Now, this being a private arbitration, I guess in terms of procedure, we don't really have an applicant as such, do we? Have the parties decided who wants to go first?
PN4
MR HANCOX: I thought the applicant was TransAdelaide in the first instance, so we are happy to let them go first.
PN5
MR WELSBY: I think that is the way we would have agreed, but because we made the notification of the dispute - - -
PN6
THE COMMISSIONER: Okay, that is fine. That is okay. Well, Mr Welsby, we will hear from TransAdelaide then.
PN7
MR WELSBY: Commissioner, I guess just before we do proceed, in terms of how we might proceed today, Ms Van Barneveld and I had a discussion yesterday about how we might proceed. There are four items that we have listed as being in dispute with a possible fifth in that letter about the wording of a particular clause. I was advised yesterday there is also another couple of matters that may be on the agenda and in speaking to Ms Van Barneveld this morning, I flagged that that may require us to go away and take some more instructions, given that we were only advised of those matters yesterday afternoon. We also discussed, in terms of proceeding with the matters, whether we ought to do them issue by issue for the help of the Commission, rather than me rattle off all of the issues and then the union respond on each issue.
PN8
THE COMMISSIONER: I see. Well, I am easy, whatever the parties think is appropriate there. It might be more convenient for the parties to deal with it issue by issue. I guess it could be of some advantage to the Commission, but really I am in the hands of the parties there. I don't mind how you proceed.
PN9
MR WELSBY: Well, we are certainly happy to proceed issue by issue.
PN10
MS VAN BARNEVELD: I think it would probably save muddying the waters between issues, because as I can see it, some of them are quite distinct, I mean under the banner of medical assessment.
PN11
THE COMMISSIONER: All right, okay. Well, then we will proceed along that path. We will deal presumably with the issues that were noted in the letter, the joint letter from you and Mr Hancox, Mr Welsby and then we will deal with any other issues at the end of all this. I am in the parties' hands, too, in terms of any further time you might need or whatever. I can indicate to the parties, I should indicate right up front here that I am on two weeks' leave at the end of this week and in terms of looking at a decision in this matter, I couldn't begin to look at this until the week commencing 28 February. I am tied up for the rest of the week, trying to get matters out of the way to get away from here for two weeks and then I am back on Monday 28 February and I just indicate to the parties that that is when I could resume, so if you did want adjournments or anything like that, if that is what you are foreshadowing, Mr Welsby?
PN12
MR WELSBY: I am not sure that I am asking that we might need an adjournment. It may be that - my first thought was that we may not go into the second day, but I think we probably will if we need to go away and look at some issues that might be raised.
PN13
THE COMMISSIONER: I see, all right. Well, certainly, I have got the rest of today and tomorrow as planned and we will see where we get to.
PN14
MR WELSBY: The other matter, and I haven't discussed it with Ray this morning, but we had a new general manager appointed yesterday who is meeting with all of our unions this afternoon and I think Ray would like to be at that meeting, so whether we might structure the lunch break to allow that, I don't know what the Commission plans in terms of that.
PN15
THE COMMISSIONER: I am happy to structure the matter as you would see fit. I have an engagement, actually, a sort of formal engagement, The Federal President is over here today to talk to a number of members and that is at 1 o'clock, but what are you suggesting?
PN16
MR WELSBY: Well, he is having that meeting at two, so maybe 2.30, I don't know.
PN17
MR HANCOX: Sounds more like an early afternoon tea than a lunch break. I mean, I am sure it won't go much longer than half an hour, forty-five minutes.
PN18
MR WELSBY: No, I don't believe it will either.
PN19
THE COMMISSIONER: Well, we will keep it flexible. What we will say then, we will go through for a couple of hours now, perhaps with a short break half way through if we need. We will go through as close to 1 o'clock as possible and then we will resume, we will say not before 2.30, but we will resume basically when you get back, Mr Hancox, is probably the situation. But it won't be before 2.30.
PN20
MR HANCOX: Mr Welsby has also got an invite .....
PN21
THE COMMISSIONER: Right. Well it would probably be a good idea for Mr Welsby to be there, wouldn't it, and you too?
PN22
MR WELSBY: I had better not get off on the wrong foot too early.
PN23
THE COMMISSIONER: Okay, well, we will do that and then I can go as late as you need to go. We have certainly got plenty of time to deal with whatever we have to today and tomorrow. All right.
PN24
MR WELSBY: Okay. Well, on that basis, as we notified you, Commissioner, there were four areas where the parties are in dispute. They are the categorisation of passenger service assistants as category one, the period of income maintenance for temporary incapacity, income maintenance for permanent incapacity and payment for the blood test taken in the employees' own time. We also flagged in that letter that there may be an issue about the use of the words wherever possible in terms of giving employees notice of having to attend a health assessment and that will be covered in these submissions by both parties.
PN25
The two additional matters that have been raised with TransAdelaide, that the blood test and the medical are conducted on the same day, which the union believe is not appropriate or the best way of conducting the total health assessment and the other matter is the drug testing during periodical medical examinations, so they may be issues that we will need to take some further instructions about.
PN26
In terms of the first issue, categorisation of passenger service assistants as category one, whilst this is listed as an item in dispute, TransAdelaide does not believe with due respect that the Commission is able to override the decision made by the organisation on this important safety consideration. It is a decision based on the level of risk the organisation is prepared to accept. In this regard, the national standards for health assessment provide that:
PN27
The employer is responsible for analysing the risks associated with the rail safety work performed in their operations and for assigning a risk category to each rail safety worker.
PN28
End of quote. Having said that, I will nonetheless proceed on the basis that the Commission will want to hear TransAdelaide's logic
in arriving at their decision before determining whether it is prepared to arbitrate on this matter. You will recall in previous
proceedings before this Commission on 26 November 2004 relating to the dispute over the health assessments, matter C2004/ 354 , that
TransAdelaide provided you with an exhibit TA3, New Health Assessment Standards for Rail Safety Workers. I have extra copies of
that if the Commission please.
PN29
THE COMMISSIONER: No, I have got all those documents. I should just indicate, too, that in the paperwork that the parties have provided prior to today, I have noted there are quite a number of other documents, particularly the union documents, RTBU1, et cetera. What I intend to do is just build on those documents that I received earlier and I think it was TA, TransAdelaide 1 to 7. I have got TA 1 through to 7 from the previous occasion. Now, do you have it from the previous transcripts or you would know what they were? Do you want me run through what they are again?
PN30
MR WELSBY: I think I know what they are. I have got the transcript. I am happy for you to run through them.
PN31
THE COMMISSIONER: Well, just briefly, what I then have is this. TA1 is the National Industry Reference Group and that is a list of those people who were on the reference group. That is all that is. TA2 is the letter from Transport SA which was apparently sent to all rail operators in South Australia dated 12 July 2004. TA3 is a document headed New Health Assessment Standards for Rail Safety Workers, Keeping you on Track with your Health and your Career,
PN32
TA4 is a draft Corporate Procedure dated 7 July 2004 from TransAdelaide on the Health Assessment Procedure. TA5 is a letter from the union to Mr Arnold dated 20 August 2004. TA6 is - and it would be explained in the previous transcript, but it says six points on a document headed Health Assessment Survey of Payments in regard to what is currently happening with various other rail operators around the country, a simple sheet TA6. TA7 is a letter from TransAdelaide to Mr Hancox of the union dated 22 November 2004. There was also a U1, I said U1 from the union last time, a document headed up Summary of Current Agreement in Rail Industry in relation to payment for medical assessments. I called that U1 on the last, I am going to keep that U1. In regard to any other documents that the union wants to put up today, I will follow your numbering, RTBU1 et cetera, but I will keep U1 as separate and then I will keep going in that sequence RTBU1, et cetera.
PN33
MS VAN BARNEVELD: Just to let you know, Commissioner, I am happy for it to proceed as you have suggested. The only problem is our RTBU numbering is now going to go out of whack slightly because we have added in new documents. So if you are happy for them not to be in order - - -
PN34
THE COMMISSIONER: No, well, in other words, would it be better if I just followed the numbering of U1 right through and then as you put them up, just make them U1, U2? I will do that.
PN35
MS VAN BARNEVELD: It might be, and we will just change our numbering.
PN36
THE COMMISSIONER: Okay, I will do that. That is fine.
PN37
MS VAN BARNEVELD: Thank you.
PN38
THE COMMISSIONER: So you have got all those then, Mr Welsby? What I am saying is those previous documents that were before me before Christmas, I still have on file and I am taking them into account, unless the parties want to say something to the contrary.
PN39
MR WELSBY: If I can refer the Commission to that exhibit, in determining the category or the type of - - -
PN40
THE COMMISSIONER: Which exhibit was this, by the way?
PN41
MR WELSBY: The TA3.
PN42
THE COMMISSIONER: Three, okay. Yes?
PN43
MR WELSBY: On page two of that exhibit, there is a diagram called Figure 1, determining the type of health assessment - a risk management approach, which asks a couple of questions which need to be answered by an organisation. The first one is that:
PN44
For any aspect of the tasks identified, could your health lead directly to a serious incident affecting the public or the rail network?
PN45
And it has a yes or no answer. I don't believe that there would be any argument that for passenger service assistants, the answer would be yes, due to the fact that they are required to perform safe working duties of a critical nature. We would then argue that this clearly places them in the safety critical area. The second question then as you follow that down to the safety critical area, is that:
PN46
For any aspect of the tasks involved, could sudden incapacity lead to a serious incident affecting the public or the rail network?
PN47
Again, you have a yes and no answer. It is in this area that we probably differ with the ARTBIU. TransAdelaide determined that the answer this question is yes, which then places passenger service assistants in category 1, high level safety critical worker.
PN48
In support of TransAdelaide's decision, can I illustrate an example of where passenger services could and are required to perform a particular function that could lead to a serious incident? I use the term are required to perform as an actual incident occurred just before Christmas. In this incident, the leading rail car of a train became disabled and could not be driven. The second rail car in the consess was still working and the driver, in accordance with procedures, went into this rail car to drive the train to its destination.
PN49
The actual trip involved was from Edwardstown to Adelaide. Obviously, this was a difficult and potentially dangerous situation as the train needed to negotiate rail crossings that cross main roads, pedestrian crossings, et cetera, with public interaction, i.e. a major safety issue. The train also had to proceed through signals that the driver could not see from the second rail car. In this situation, a passenger service assistant on board, who is safe working qualified, was required to ride in the driver's cab of the front rail car and keep in contact with the driver by radio to advise him of signal indications and that rail crossings were clear with boom gates working and thus presenting no danger to the public. Admittedly, the train proceeds at low speed, which is not to exceed 25 kilometres per hour in these circumstances. That mitigates the potential for an incident to occur. However, it could nonetheless occur with significant consequences.
PN50
TransAdelaide would strongly argue that the sudden incapacity of the passenger service assistant in these circumstances could lead to a serious incident and therefore would justify passenger service assistants being included as category 1 workers for the purposes of health assessment. To further illustrate TransAdelaide's point in this regard, we would like to hand up an exhibit.
PN51
THE COMMISSIONER: Right, so you had better explain what this is then, Mr Welsby.
PN52
MR WELSBY: This is an extract from the general instruction and addenda to the working timetable and the date is 9 June 1991.
PN53
THE COMMISSIONER: Say that again? It is an extract from the?
PN54
MR WELSBY: General instruction and addenda to the working timetable. It then goes on and it is page 19 that has been extracted from that, and it is headed Rail Car Movements. At point 4 under General, the comment is made or the ruling is made:
PN55
If in an emergency a main line movement is made and the driver is unable to operate from the leading end of the consess in the direction of such movement ...(reads)... pedestrian crossings, per way maintenance gangs apply the emergency air break if necessary.
PN56
And at (c) it goes on to say:
PN57
The speed of the movement must not exceed low speed -
which as I have explained to the Commission is a maximum of 25 kilometres an hour, so clearly there is an instruction there for employees related to the circumstances that I have described and it is contained within our instructions within the organisation.
EXHIBIT #TA8 EXTRACT FROM THE GENERAL INSTRUCTION AND ADDENDA TO THE WORKING TIMETABLE, PAGE 19, DATED 09/06/1991
PN59
MR WELSBY: One of the arguments advanced internally by the union is that TransAdelaide did not conduct a risk assessment before determining that passenger service assistants should be placed in category 1. In fact, the organisation is not required to conduct a risk assessment as such. This has already been performed by the national project team who developed the health assessment standards. What TransAdelaide was required to do was to conduct a risk assessment of the task performed by each affected group of employees.
PN60
In conducting this risk assessment of tasks for PSAs or passenger service assistants, it was determined that the type of tasks that I have just described justified passenger service assistants being classified as category 1, high level safety critical worker. As I said at the beginning, TransAdelaide is firmly of the belief that this category is appropriate and as previously indicated, the Commission should not change the decision as it is an operational responsibility and an organisational responsibility to determine the level of risk that it is prepared to accept and act accordingly. That is all I have got in terms of that item.
PN61
THE COMMISSIONER: Thanks, Mr Welsby. Ms Van Barneveld.
PN62
MS VAN BARNEVELD: Thank you, Commissioner. Just to clarify, I think most importantly the RTBU is certainly not here today to argue that TransAdelaide has necessarily miscategorised people, although we do have some suspicion that there are one or two grades of workers, not just the PSAs who have possibly been incorrectly categorised. Our main concern is that TransAdelaide has unilaterally determined what these risk categories should be for the purposes of the health assessment and we believe under the health assessment there is actually a requirement for consultation and we don't think that that has happened and this is why it has led to confusion in relation to categorisation.
PN63
Commissioner, the medical standards state in numerous places in volumes 1 and 2 that the categorisation of rail safety workers is to be done using a risk management approach and Mr Welsby just acknowledged that. The document which we forwarded to you and marked RTBU1 contains excerpts from volume 1 and 2 of the standard. I have other copies if you would like me to hand them up.
PN64
THE COMMISSIONER: No, that is fine. I am happy to work off this.
PN65
MS VAN BARNEVELD: I can take you through those.
PN66
THE COMMISSIONER: Yes. Perhaps I should indicate then that if we take this particular document, which we will mark this as U2, or perhaps it might be easier if we mark it as U1A so that then I get in step with the RTBU numbering a little later?
PN67
MS VAN BARNEVELD: Okay, yes, although Mr Hancox - - -
PN68
THE COMMISSIONER: Yes, there will be other documents.
PN69
MS VAN BARNEVELD: He is about to jump to 13.
THE COMMISSIONER: That is all right. Well, we will just follow the U right through.
EXHIBIT #U2 EXTRACT FROM NATIONAL STANDARD HEALTH ASSESSMENT RAIL SAFETY WORKERS JUNE 2004
PN71
MS VAN BARNEVELD: Thank you, Commissioner. All I wanted to use those for was to just highlight the focus in the standard on the risk management approach. Point 5 obviously in part 2 of volume 1 clearly states that the risk management approach should be taken so that the level and frequency of rail safety worker health assessments corresponds with the risks associated with the tasks they perform. Further, section 6.1 in volume 2 also clearly states the requirements for health assessments and rail service safety workers are to be determined by a risk management approach, so I don't think that is particularly contentious. In fact, TransAdelaide in a letter dated 9 June from Roy Arnold to Ray Hancox actually states that they are committed to consulting over risk categories and I have a copy of that letter which I am happy to hand up.
THE COMMISSIONER: Yes, thanks.
EXHIBIT #U3 LETTER FROM TRANSADELAIDE TO UNION DATED09/06/2004
PN73
THE COMMISSIONER: If there are any objections to any of these documents being considered, then I take it the other party will jump to their feet and object to U3.
PN74
MS VAN BARNEVELD: Just to point out, Commissioner, in that letter in the second paragraph, it says:
PN75
Your letter is most timely in that TransAdelaide has already agreed in principle to the adoption of the national standards, subject to consultation with its workforce and their representatives.
PN76
And the RTBU is disappointed that we don't feel significant consultation has occurred in relation to that matter. We are also concerned in that risk assessments in the rail industry are done according to the Australian Standard AS4360. AS4360 outlines the main elements of the risk management process in 2.2 and I have included those in the parcel of documents you have got, Commissioner, and I have called it RTBU2, but I presume - - -
PN77
THE COMMISSIONER: Yes, and that RTBU2 will now become exhibit U3 - sorry, U4, it will now become U4.
MS VAN BARNEVELD: It is an excerpt from the Standards Australia Risk Management Standard AS4360.
EXHIBIT #U4 EXCERPT FROM THE STANDARDS AUSTRALIA RISK MANAGEMENT STANDARD AS4360
PN79
MS VAN BARNEVELD: Commissioner, I just wanted to highlight the focus in that standard on consultation as well. Page 7 of AS4360 lists the main element, the first main element of the risk management process as communicate and consult. It says:
PN80
Communicate and consult with internal/external stakeholders as appropriate at each stage of the risk management process and concerning the process as a whole.
PN81
Further detail is found on the next page I have provided the Commission on page 11, which just highlights, it just expands on that first element of communicate and consult. The first paragraph says:
PN82
Effective communication and consultation should involve a dialogue with stakeholders with efforts focused on consultation rather than a one-way flow of information from the decision-maker to other stakeholders.
PN83
The third paragraph down says:
PN84
Effective internal and external communication is important to ensure those responsible for implementing risk management and those with a vested interest understand the basis on which decisions are made and why particular actions are required.
PN85
Again, I don't think the level of consultation that has occurred to date addresses some of those concerns and probably leads us to why we are here discussing this particular item. The other concern the RTBU has is how this lack of consultation in relation to assigning risk categories fits in with the occupational health and safety legislation in South Australia. The RTBU would just like to note that section 34 of the Act highlights the responsibilities of employers. I have got a section to hand up if you would like.
PN86
THE COMMISSIONER: Yes, that would be useful, thanks. I don't think we need mark that as an exhibit as it is just part of the Act, section 34, Occupational Health Safety and Welfare Act 1986. Yes.
PN87
MS VAN BARNEVELD: I just would like to highlight to the Commission the responsibilities of the employer in relation to consultation so the employer must, under section 34(1)(a):
PN88
Consult any relevant health and safety representatives and health and safety committees on ...(reads)... where those changes might affect the health, safety or welfare of employees at the workplace.
PN89
And on it goes. We do have some concerns that possibly not consulting over risk categories also may not comply with that particular section of the occupational health and safety legislation in South Australia. As I mentioned, Commissioner, the RTBU is certainly not trying to arbitrarily push groups of workers into a lower risk category in order to avoid the concerns of some members about having a pathology test as part of their health assessment for a category 1 position. Rather, the RTBU is concerned about the lack of consultation and this has resulted in some workers being incorrectly categorised.
PN90
We believe there are some instances, not just amongst PSAs, but perhaps purvey workers and several other grades and there are instances perhaps of this happening both in terms of a higher categorisation, i.e. workers that possibly could be category 2 being categorised as category 1 and also perhaps instances of it happening the other way, where workers who are supposed to be perhaps category 1 have been categorised at a lower level and this has obviously significant concerns about the application of the health assessment standards. The RTBU simply requests that consultation occurs over the categorisation of workers as per what we read as the requirements of the national health standard for assessment of rail safety workers. I can give an example, Commissioner, of how we think perhaps PSAs may not be categorised as category 1, if you like.
PN91
THE COMMISSIONER: Please.
PN92
MS VAN BARNEVELD: In your parcel of documents was a passenger service assistant and it was marked at 3, job description. Mr Welsby has already gone through that table and I had also included it I think at - - -
PN93
MR WELSBY: Can I just ask for a clarification here? Is that document being tabled as the current job description for a passenger service assistant?
PN94
MS VAN BARNEVELD: I believe so. You have it in your parcel.
PN95
MR WELSBY: I certainly object to that on that basis, because I don't believe it is the current job description for a passenger service assistant.
PN96
THE COMMISSIONER: It says it is amended March 2000.
PN97
MR WELSBY: I think it has been amended since then, too.
PN98
MS VAN BARNEVELD: I suppose, Mr Welsby, then it would be useful for you to just highlight to us in which way it had been amended and the only reason I would be interested in it being amended is if the changes to it put in increased safe working duties for a passenger services - - -
PN99
MR WELSBY: Well, it would certainly be my understanding that they do.
PN100
MS VAN BARNEVELD: Okay. That is fine. If you look at it, I suppose our point was with the old one is that it didn't really highlight any particular safe working duties and in that sense, if you try to match it up against the criteria in the standard in that table that Mr Welsby has already tabled, and that I believe is actually in our parcel of documents which is now marked U2, there is no way you can match up a passenger service attendant or assistant against the category 1 worker. It just doesn't work, because to become a category 1 worker, you have to be at risk. If you collapse, there has to be a risk of a catastrophic incident on the railway, and we didn't see from what was contained in that position description, so perhaps it would be helpful if TransAdelaide could at some stage maybe - - -
PN101
THE COMMISSIONER: All right, I take the point you are making, but we won't call the excerpt RTBU3 if it is not an up to date document, then. I understand the point you are making.
PN102
MS VAN BARNEVELD: Certainly, Commissioner, I mean, the categorisation of this type of work being the PSAs is different in different rail organisations depending on the sorts of safe working duties they are expected to do. For example, in RailCorp, the RTBU has investigated what these people are categorised as and, in fact, an example was also provided in the standard of a RailCorp worker and interestingly, despite the safe working duties they do, they are categorised as category 1, sorry category 2. Personally, having read it, I wouldn't have thought they were. I would have thought they were category 1 because they have to change points and all sorts of things in times of a failure of a driver, but according to the health standard, the group who developed it categorised a guard and a country link onboard services staff, so two different categories, as category 2 and that is in the parcel of documents provided to the Commission at RTBU4.
PN103
If you have a look at the table in RTBU4 on page 27, it is volume 1 of the health assessment standard. It has an example of guard duties. If you have a look on the page of that table, there is a little grey box which says what they categorised that person as. It covers guards and country link onboard services staff.
PN104
THE COMMISSIONER: Which page are you looking at here, sorry?
PN105
MS VAN BARNEVELD: Page 28, down the bottom on the right hand side, there is a little grey box which says - - -
PN106
THE COMMISSIONER: Category 2.
PN107
MS VAN BARNEVELD: Yes, and if you look up, slightly up towards the left hand column at the top, it describes the sorts of duties which Mr Welsby described as PSAs performing in that incident in December last year, in that in an emergency, and this was just specifically for the guards, they were to drive no faster than 25 kilometres an hour in second notch to the nearest station. I would argue that that is probably even a higher requirement of safe working duties than the example Mr Welsby gave, and yet these workers were categorised by the reference group developing the standard as category 2. I think my point here is not necessarily to argue, Commissioner, what the workers at TransAdelaide should be categorised at this point in time, but just to highlight that there is a need for consultation.
PN108
THE COMMISSIONER: Yes, it is the consultation thing that you are talking about because at the end of the day, it is TransAdelaide's responsibility as a rail operator to - they have to do that to categorise it. That is their legal duty, to categorise.
PN109
MS VAN BARNEVELD: But we believe that legal duty has to be conducted within the context of both obligations under the occupational health and safety legislation as well as under AS4360, which is the risk management standard used quite widely in the rail industry and other industries.
PN110
THE COMMISSIONER: I understand your point about consultation, but, I mean, as I understand Mr Welsby, he is saying, well, look, it is the legal duty of TransAdelaide to categorise workers, not the Commission's role.
PN111
MS VAN BARNEVELD: Yes, what we are seeking from the Commission is maybe a recommendation to consult rather than any, I mean, we wouldn't seek for the Commission to put anyone in a category at all. I think it requires expertise that probably none of us in the room have.
THE COMMISSIONER: I understand where you are coming from, yes. Look in regard to RTBU4, again if we mark that particular document as U5.
EXHIBIT #U5 EXTRACT FROM NATIONAL STANDARD HEALTH ASSESSMENT FOR RAIL SAFETY WORKERS
PN113
MS VAN BARNEVELD: Commissioner, that was effectively all I had to say in relation to the first item in the letter signed by Mr Welsby and Mr Hancox.
PN114
THE COMMISSIONER: Yes, I think it is going to be useful going through this issue by issue. All right, thank you for that. I suppose I should ask Mr Welsby if there is any final comment or matter arising from anything mentioned.
PN115
MR WELSBY: There are a couple of comments, Commissioner. One is about the level of consultation and that is always an issue that is a vexed question between an employer and employees as to the level of consultation that occurred. It is my submission that TransAdelaide did consult over these. The level of consultation, of course, can be questioned, but I don't believe, I certainly believe they were consulted. They were consulted at a peak level in terms of State bodies in that our occupational health and safety manager gave a presentation to all unions of the national health assessment standards and also provided information in relation to categorisation of employees and that information and those presentations were also made to occupational health and safety committees within the organisation, so I believe there was consultation undertaken. Whether the level of consultation meets what the Commission thinks is appropriate, I will have to leave it in your good hands, but I certainly believe there were consultations taken.
PN116
I think the critical thing, though, even despite what the submission of the union have been is the point that you referred to and I will go to the national standards in volume 2 of those national standards and quote from them:
PN117
The employer is responsible for analysing the risks associated with the rail safety work performed in their operations and for assigning a risk category to each rail safety worker.
PN118
End of quote. Now, whilst I am not totally familiar with these volumes, because they are quite voluminous, I don't believe anywhere have I read of the need to consult with employees about determining those risk categories. Now, I believe we did, as I just stated, but there is no requirement necessarily for the organisation within the standards to consult over those risk categories.
PN119
I think Ms Van Barneveld talked about whether we have under-categorised some people or over-categorised others. I think the over-categorisation to me should not be a concern because that means we have taken a very minimalist risk in terms of over-categorising people and that means that we are actually probably paying them over what we need to in terms of that medical assessment in that we are conducting a blood test of some people, that people would argue may not be necessary and I think that has benefits, both for the organisation and the individual. To the organisation, it is minimalising its risk as much as it can. For the individual, it is providing an additional health check for them which should be of personal benefit to them.
PN120
Under-categorising people would certainly be a concern for the organisation and any examples of that, that the union would like to provide to us, we would certainly be prepared to have a re-look at those. That is all I would like to say.
PN121
THE COMMISSIONER: Okay, then we will continue with the next issue, unless there is any final - I don't want to get into rights of reply and rights of reply and rights of reply, but as long as everyone has said their bit, I will move on.
PN122
MR WELSBY: The second issue that we notified to the Commission that the parties were in dispute about is the period of income maintenance for temporary incapacity. I believe this is only a small issue for the organisation and the union now in that we have had further discussions and hopefully I can present something to the Commission that may be acceptable to the parties.
PN123
The parties recognise that there will be occasions when employees are unable to meet the health assessment standards on a temporary basis and this is particularly true in relation to the cardiac risk or that is determined by the blood test and other factors of the medical assessment, for example blood pressure readings.
PN124
There is also a recognition by the parties that where an employee is temporarily unfit for work, but is expected to meet the standards with adjustment to lifestyle in a reasonable period of time, that the employee should not suffer a loss of income whilst they are able to perform alternative duties. Where the parties differ and I believe it is only minor, is when this period of income maintenance for temporary incapacity should cease. TransAdelaide has proposed that the limit of income maintenance should be three months. We believe this is fair and reasonable in that it, (1) provides for a reasonable period of income maintenance for the affected employee, (2) it is importantly encourages the employee to make the necessary adjustments and return to his or her normal work and, thirdly, it takes note of medical advice.
PN125
It has been suggested by the ARTBIU that this period should be extended, but they haven't provided any upper limit to that extension. TransAdelaide believes this does not encourage the individual to make the necessary adjustments and return to work as a level of income maintenance becomes comfortable for the employee. However, TransAdelaide has indicated it would be prepared to exercise some flexibility in relation to the three month cut-off in that if there is medical advice that indicates an individual is genuinely attempting to make the necessary adjustment and to meet the medical standard to return to their normal work, then consideration should be given to that advice.
PN126
TransAdelaide would be prepared to agree to a form of words that preserves the three month cut-off but recognises that flexibility needs to be exercised when medical advice indicates that a further short period is required and is likely to successfully lead to a return of the employee to their normal duties. We would suggest that this form of words be along the following lines:
PN127
TransAdelaide will provide income maintenance to an employee who is temporarily unfit for normal duties as a result of their health assessment and will provide alternative duties where possible, provided that the total period of income maintenance does not exceed three months. If an extension to the period of temporary incapacity is recommended and in the opinion of the medical practitioner, the employee is genuinely attempting to meet the required health assessment standard and has made substantial progress towards that standard and is likely to meet that standard, consideration will be given to an extension of income maintenance for a further short period of temporary incapacity.
PN128
I believe that that could resolve the issue between the parties. There may be some playing with words that the union might want to discuss with us - - -
PN129
THE COMMISSIONER: Further short period, of course, leads it open ended, still.
PN130
MR WELSBY: Yes, it does.
PN131
THE COMMISSIONER: What, to cover the myriad views of a medical practitioner, I suppose?
PN132
MR WELSBY: Correct.
PN133
THE COMMISSIONER: Short period, I mean, what if they say another six months? Is that another short period? I mean, that is the difficulty, isn't it?
PN134
MR WELSBY: I suppose given that you have made the cut-off at three months, I would suggest six months is not a further short period, but two weeks, in circumstances three weeks, I mean - - -
PN135
THE COMMISSIONER: It just that what is a short period? It is in the hold of the beholder, isn't it?
PN136
MR WELSBY: Well, it would be really acting on medical opinion, because you have already covered three months. The medical person should be able to make a reasonable assessment at the end of that three months as to whether the person is genuinely trying to meet the standard, whether they have made significant progress towards meeting the standard and whether they are likely to meet the standard.
PN137
THE COMMISSIONER: When you say likely to meet the standard, likely ever to meet the standard, or likely to meet the standard in a reasonable time? I mean, some people might be in such bad shape, for example, it might take 12 months, all right? I suppose that could happen. I mean, what happens in that situation?
PN138
MR WELSBY: I think it is unlikely, given that TransAdelaide's standards have been reasonable in the past, so I think it is unlikely that someone would have got themselves into a situation where they are going to be that far out of kilter with the standard that they are going to take 12 months. I think that is a pretty extreme case.
PN139
THE COMMISSIONER: I forget the TV show, but I saw Merv Hughes the other day on the cricket and he had got himself into terrible shape and he is on some TV show and I reckon he will be taking more than three months, I can assure you.
PN140
MR WELSBY: I think that is a pretty good advert for looking after yourself.
PN141
THE COMMISSIONER: You say you don't have any Merv Hughes operating at TransAdelaide?
PN142
MR WELSBY: I am not a medical practitioner and perhaps appearances can be deceiving, but I would have thought that our regime of testing should have shown up if people were in that bad a condition. That is all I have really got to say on that issue because as I said, I believe it is a small disagreement now between the parties and I think with some help from the Commission, we can probably agree on a form of words.
PN143
THE COMMISSIONER: All right. Ms Van Barneveld?
PN144
MR HANCOX: That is certainly a new development from our point of view, Commissioner, because we have been arguing at all times that whatever the period be, whether it be three months or six months or 12 months or whatever, it should be left for the medical practitioner. I mean, if we look at the paperwork that TransAdelaide has handed up in regard to the medical assessments, there is a degree of confidentiality.
PN145
TransAdelaide is not told what the nature of the employee's problem is. They are merely told that he is, (a) either fit for duty or not fit for duty. There is also provision for the doctor to give TransAdelaide an indication of whether that unfitness for duty is temporary or permanent. All we ask is that it be left to the medical practitioners to determine the length of the person's rehabilitation or ability to be brought up to a level of fitness where they can continue to the work they hired to do, rather than placing an arbitrary limit on it and then saying, well, we believe that this employee is not really trying to get himself fit. That is like saying he is taking advantage of the income maintenance to sit around and do alternative duties for a period of time, simply because he can. We would argue that our members wouldn't be attempting to do that. They would be more likely to want to get back to doing the job they are hired to do.
PN146
THE COMMISSIONER: Now, this would be the Mile End Clinic, would it, that makes that assessment?
PN147
MR HANCOX: The Mile End Clinic or the TransAdelaide chief medical officer, whoever that might be. It could be a number of different people who determine that.
PN148
THE COMMISSIONER: Mr Welsby, could I just get clarification on that?
PN149
MR WELSBY: It could be a specialist that Mile End refer to the person to. For example they could have a high blood sugar or whatever, high blood pressure.
PN150
THE COMMISSIONER: What about, you see, you could get the situation, though, where the employee's own doctor could then come in and say, well, look, I disagree with the Mile End Clinic or the specialist and I have known this person for 40 years and they are trying, it might not look as though they are trying, but they are trying, so what happens when you get involved in that? Any comment on that?
PN151
MR WELSBY: My comment on that would be that Mile End usually do not act unilaterally in cases such as that. They generally, if they have a concern about a person's health, not necessarily that will make them unfit to work, for example, they might see a blood sugar level that they are a bit concerned about, within the levels prescribed, but they believe it is getting pretty close to the mark. They will refer the individual back to their own GP so there is an interaction and a liaison between Mile End and the individual's GP as the occasion warrants, so I don't believe that they act unilaterally without any reference back to the individual's GP or in some cases, and if we go away from the health assessments and just talk about people's health in general, for example, people who may have suffered a coronary and therefore have a specialist treating them for it, they will, Mile End will generally confer with that specialist before clearing the person to come back to work, so there is that interaction between Mile End and people's GPs or specialists.
PN152
THE COMMISSIONER: I suppose the assessment at the end of the day is to be made by Mile End because they are the ones who are accredited. Are they accredited to determine fitness for work on the rail system?
PN153
MR WELSBY: Correct. So they can be mindful of what the GP or what the individual's GP tells them, but at the end of the day, it is them that has to make the certification.
PN154
THE COMMISSIONER: Because they are the ones accredited.
PN155
MR WELSBY: Correct.
PN156
THE COMMISSIONER: Mr Hancox?
PN157
THE COMMISSIONER: Well, I guess we have still got a concern about the upper limit being three months and then having to haggle later over what TransAdelaide would regard as reasonable, but perhaps we could take five minutes and I can discuss this with my colleagues, just have a short adjournment.
PN158
THE COMMISSIONER: It might be appropriate to a short adjournment for five minutes.
<SHORT ADJOURNMENT [11.40AM]
<RESUMED [12.04PM]
PN159
THE COMMISSIONER: Right. The results of those discussions, anything arising?
PN160
MR HANCOX: Certainly, Commissioner. We have had a bit of a play with the words that TransAdelaide read out a bit previously and we are now proposing that the particular clause would now read that:
PN161
TransAdelaide will provide income maintenance to an employee who is temporarily unfit for normal duties as a result of their health assessment that will provide alternative duties where possible. It is envisaged that the usual period of income maintenance will not exceed three months. However, if an extension to the period of temporary incapacity is recommended and in the opinion of the accredited medical practitioner, the employee is genuinely attempting to meet the require health assessment standard and has made substantial progress towards that standard, consideration will be given to an extension of income maintenance as recommended.
PN162
There is a further clause that goes on to say that:
PN163
If there is disagreement between the parties over an extension of income maintenance for a temporarily unfit worker, the dispute avoidance settlement procedures in the EBA applies.
PN164
THE COMMISSIONER: And that has been agreed?
PN165
MR WELSBY: I will probably have to take instructions, but on the surface, it appears that those words will probably suite TransAdelaide's purpose. There was some conjecture about the use of those words "where possible", but in discussions, Mr Hancox and I agreed that TransAdelaide's track record in terms of providing people alternative duties and the desirability of having people productive during that period of temporary incapacity would suggest that those words would very rarely, if ever, be used, anyway.
PN166
THE COMMISSIONER: All right. Well, you can advise me further on that in due course, Mr Welsby, but it looks as though issue two may be resolved.
PN167
MR WELSBY: Correct.
PN168
THE COMMISSIONER: And there is nothing further you want to add on that at this point for either party?
PN169
MR WELSBY: No, nothing for me.
PN170
THE COMMISSIONER: All right. We can move on to issue three.
PN171
MR WELSBY: Now, with the Commission's indulgence, I just want to change the order of those.
PN172
THE COMMISSIONER: Okay.
PN173
MR WELSBY: I will confess to the documentation provided by the union as throwing me a little bit in terms of item three and I need to re-assess what my submission would have been. So, with their indulgence we will move on to item four instead.
PN174
This is about the payment for taking a blood test undertaken in an employee's own time. If the blood test is undertaken in working time, then the employee receives payment of the time involved as working time, as it is part of their normal shift. I do not believe this arrangement is in dispute between the parties.
PN175
For ease of rostering, TransAdelaide is now arranging for the blood test and health assessment to be conducted on the same day. I indicated to you that that may be an issue that the union will raise as a concern, so we may need to make submissions in respect to that further. Previously they were conducted on different days, so that the results of the blood test were available to the examining doctor when the medical was undertaken.
PN176
Obviously this has some impact on the ability of the doctor to certify the employee fit immediately following the medical. However, we are prepared to accept the fact that some will be required to attend for a follow-up if there are concerns with the blood test and the consequent cardiac risk score.
PN177
Since using this new regime, there have only been two instances of individuals needing a follow-up, and both of these were minor and had no impact on operations. I say that they were minor in that they were only a concern about where the cardiac risk score was sitting and wasn't sufficient to make them either temporarily or permanently unfit for work. It was just a warning, so to speak, that you are heading down a path that you may need to correct. Our medical provider as in the Mile End Health Clinic is comfortable with the new arrangement, although they would probably acknowledge that from their viewpoint, it is not necessarily ideal.
PN178
Having said that, a typical example of how the new arrangements for the blood test and medical occur is that an employee would sign on duty at 7.30 am and be taken by car to pathology to undergo a blood test. The employee undergoes the blood test and is transported back to the Adelaide Railway Station. The employee is given their agreed one hour meal break for rest and a meal and then the employee goes to the work health clinic at Mile End for a medical arranged for 10 am. The employee returns to the Adelaide Railway Station between 12 and 1 o'clock and is available for work or training after that period.
PN179
THE COMMISSIONER: Do you say that in that period from, say, 10 o'clock to when they are picked up between 12 and one, how much of that is the actual medical itself?
MR WELSBY: I will come to that in a moment with an exhibit, if I could. Since TransAdelaide has been utilising this arrangement, statistics show that the blood test component is being completed within the two hour time frame and this includes the one hour rest meal break. In fact, the overall time is about 1.5 to two hours and I will now table an exhibit that sets out these timings for the Commission.
EXHIBIT #TA9 DOCUMENT HEADED AVERAGE TIMES FOR MEDICAL APPOINTMENTS
PN181
MR WELSBY: If I could just run through that to explain to the Commission. The testing for the blood takes about 10 to 15 minutes and for the medical between one and one and a half hours. It can be more, depending on if the Mile End Health Clinic is required to deal with any emergencies whilst the person is there.
PN182
In terms of travelling time, we allow 15 minutes either way to go to the blood test and 30 minutes either way to go to the health clinic. Now, that 30 minutes is quite generous to get from Adelaide to Mile End and the 30 minutes is allowed because if we don't have a car available to transport the person there, they actually go on the train and return by train. That is not that it takes 30 minutes for the train to get to Mile End, but it includes the fact that it has a timetable that may not necessarily comply with the appointment times and there is a short walk involved to get from the station to the clinic.
PN183
THE COMMISSIONER: Where are the blood tests conducted?
PN184
MR WELSBY: They are being conducted in the city by a pathology unit, rather than at Mile End.
PN185
THE COMMISSIONER: Somewhere in the city?
PN186
MR WELSBY: Yes.
PN187
THE COMMISSIONER: Okay.
PN188
MR WELSBY: In addition, they get that one hour break after the blood test. Where we vary a little bit is that we have people located at out depots, such as Blair, Gawler and Port Stanvac that require a greater travelling time because they sign on at that depot, travel into Adelaide before we then take them for the pathology test, so the level of travelling time is more at those outer depots. So what that means is that in total time for the process to be completed from when they sign on and are ready to travel for the blood test is between four and a half hours for people in Adelaide, up to five hours 45 minutes for those at Gawler. A couple of notes there at the bottom:
PN189
The above timings are provided, it is possible to get a medical appointment exactly at the right time and there is no waiting for trains.
PN190
The second note is, and this is important:
PN191
The average times from leaving Adelaide station to returning to Adelaide station for the blood test is approximately 30 minutes.
PN192
So if you look at it in terms of our timing, the allocation even in the timing is quite generous in that we allow 10 to 15 minutes for the test and 15 minutes each for the drive to and from. Our statistics show that that process has actually been completed within 30 minutes.
PN193
If you then add the 30 minutes average time, or even the allocated time of 45 minutes to the one hour that we have allowed people to have a break after the blood test in order to have a rest and a meal, given that they have been fasting, then the period involved is always less than two hours.
PN194
The exhibit shows that employees typically return to the Adelaide Railway Station from their medical between 12 and 1 pm. It is TransAdelaide's intention to utilise the remainder of the shift to provide short training packages. These are currently being developed or have been developed in some cases and will be delivered by the training group. I am sure the ARTBIU would support this initiative relating to training as being able to release employees for training as an ongoing issue for the organisation, but is one that has improved in the last twelve months, but still requires further.
PN195
There is no intention by TransAdelaide to utilise people who have the combined blood and health assessment in the same shift to work trains during the remainder of their shift, although we would reserve the right to do so in an emergency. We believe there is no medical reason why they could not perform work in this shift.
PN196
TransAdelaide's preference is that the entire health assessment process, that is the blood test and medical, be completed during working time in the manner described above. We believe this is consistent with the directions of Senior Deputy President Hamberger in Pacific National and Australian Rail, Tram and Bus Industry Union, matter C2004/6794 of 11 January 2005 and I wish to table that as an exhibit.
PN197
Now, whilst I will argue later that the circumstances between Pacific National and TransAdelaide in terms of how we conduct the medical assessments and payments et cetera and quoting from that exhibit, Senior Deputy President Hamberger was quite specific in saying that the most efficient and fair way of enabling as many drivers as possible to have their blood tests done during normal rostered hours.
PN198
THE COMMISSIONER: But he only asked them to discuss that.
PN199
MR WELSBY: Yes, he did, and subsequent to that and I will table another exhibit shortly - - -
PN200
THE COMMISSIONER: Mr Welsby, he doesn't actually - with respect, he doesn't actually say that it is his view that the most efficient and fair way of enabling as many drivers as possible to have their blood test is to have it during normal rostered hours. That is not what it says. He just wanted the parties to discuss that.
PN201
MR WELSBY: Correct.
PN202
THE COMMISSIONER: Okay. And what happened after they discussed it?
MR WELSBY: Well, it is my understanding that as a result of these discussions, the parties agreed that Pacific National local management
would consult with the local RTBU delegate with the intent to agree on the fairest and most efficient method of providing the blood
sample and the parties would explore all options available, for example, fasting and providing a blood sample during a rostered shift
and where fasting and providing a blood sample during a rostered shift occurred, the employee will not be entitled to payments contained
within Senior
Deputy President Hamberger's recommendation, except where the required notice is not given.
EXHIBIT #TA10 DIRECTIONS ISSUED BY SDP HAMBERGER ON 11/01/2005
PN204
MR WELSBY: However, TransAdelaide is prepared and has indicated that it is prepared to recognise that for a variety of reasons, individual employees may wish to undertake the blood test in their own time on a day that they are booked off duty. TransAdelaide has indicated that whilst it is not our preference, ie. we would prefer people to have the blood test and medical in working time, it is prepared to allow employees to do this and has offered to pay them two hours at their base rate of pay when they do it. In addition, we meet any costs associated with the test.
PN205
THE COMMISSIONER: Hang on, that is for both the blood and the medical?
PN206
MR WELSBY: No, just for the blood.
PN207
THE COMMISSIONER: Just for the blood, sorry, okay. This is perhaps a question I will ask the union in a moment, why would people want to do it on their day off?
PN208
MR WELSBY: I think there are people who take blood tests routinely as part of their normal health, anyway, and so they would say,
why go and do it twice? There are people that have objections on privacy issues associated with having a blood test that would prefer
that it is undertaken by their own GP with whom they have a relationship, so to speak, so I mean we are prepared to recognise those
facts. I don't know whether Ray wants - - -
PN209
THE COMMISSIONER: I think they would rather do it in the employer's time, but I will hear from the union in a moment on that. That is interesting. Okay.
PN210
MR WELSBY: TransAdelaide believes the offer is fair and reasonable. It allows ample time for the employee to drive to their GP or a pathology clinic, have the test and drive home. Most people's personal experiences would suggest that there are seldom delays in undertaking a blood test when it has been pre-arranged and typically the entire process, that is travel to and from the test and undertaking the test would be completed within about an hour, depending on the distance travelled.
PN211
The union has been seeking four hours' payment for an employee who undertakes the blood test in their own time. TransAdelaide believes this is ludicrous and has no basis in terms of relevance to the time actually taken. As indicated above, the statistics show that the blood test component of the health assessment is completed within two hours when it is undertaken during working time and this includes the one hour rest or meal break.
PN212
TransAdelaide would therefore argue that employees should not financially benefit from having the blood test in their own time. This isn't an exercise about making money. It is a requirement of their employment and undertaking the blood test in their own time has only been agreed in the interests of being flexible. I reiterate that TransAdelaide considers the two hours payment is fair and reasonable.
PN213
Without pre-empting the ARTBIU submission, I would be surprised if it doesn't argue accurately with Pacific National and RailCorp who it will claim pay four hours for the blood test and four hours for the medical. TransAdelaide argues that the situations are different and the circumstances are different between us and those organisations.
Firstly, I will comment on Pacific National. I would like to hand up an exhibit that is Senior Deputy President Hamberger's recommendations relating to a matter between Pacific National and the Australian Rail, Tram and Bus Industry Union. The matter is C2004/6794, the matter referred to previously and the date of these recommendations is 15 December 2004.
MFI #TA11 RECOMMENDATION OF SENIOR DEPUTY PRESIDENT HAMBERGER DATED 15/12/2004 IN RELATION TO PACIFIC NATIONAL AND THE AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION
PN215
MR WELSBY: TransAdelaide submits at point seven of those recommendations of 15 December 2004 provides the clear and significant difference in our submission in that Pacific National were requiring their drivers to have a blood test done in their own time. Senior Deputy President Hamberger goes on to say at point eight:
PN216
Whilst the blood test itself is a fairly short procedure, drivers understandably resent the intrusion into their private time.
PN217
This prompted Senior Deputy President Hamberger to recommend at point 10 that:
PN218
In addition to continuing to receive the $65 allowance, drivers who need to undergo a blood test in their own time should also have two hours credited to their hours bank. Rather than focusing on additional financial compensation, this emphasises that it is the private time of the driver that is being intruded upon.
PN219
The important words from TransAdelaide's perspective in that point are that they need to undergo a blood test in their own time, whereas TransAdelaide is giving people the option of undergoing a blood test in their own time. TransAdelaide is not intruding upon the employees' private time. If they had the blood test in their own time, then they are doing so by choice. Senior Deputy President Hamberger goes on further in that decision or that recommendation to say at point 13:
PN220
In the long run, it would be preferable from both an employer and employee perspective to find a fair and efficient way for the blood test to be conducted during normal rostered shift.
PN221
This is exactly what TransAdelaide is doing as previously indicated, with our preference for the blood test and health assessment to be conducted during working time. As such, it is TransAdelaide's submission that there should be no additional payment to an individual employee who elects to have the blood test in their own time that is over and above what it takes to conduct a blood test, that is two hours. At point 13, Senior Deputy President Hamberger goes on to say:
PN222
If the test is undertaken during normal rostered time and the employee is given sufficient notice, I do not believe there would be a need for any additional payment.
PN223
It is a little bit difficult for me to comment on the RailCorp Agreement, as it was an agreement negotiated between the parties and all one can do is refer to the agreement itself. It is acknowledged that this agreement provides for a payment of one full eight hour shift to attend both the pathology and the health assessment. However, there is nothing in the agreement to say that this is four hours for the pathology or blood test and four hours for the health assessment, nor do I concede there is no stipulation that it hasn't been split that way, either.
PN224
Notwithstanding it is TransAdelaide's submission that the Commission can certainly take note of this agreement when making a decision, however, it should have no practical standing in the decision making process from our point of view. Of the two examples provided, TransAdelaide submits that the Pacific National case should carry far greater weight. In conclusion, TransAdelaide submits that its offer of paying employees two hours' payment for selecting to have the blood test performed in their own time is fair and reasonable and the Commission should find accordingly.
PN225
THE COMMISSIONER: Thanks, Mr Welsby. Ms Van Barneveld?
PN226
MS VAN BARNEVELD: Thank you, Commissioner. I think there are a few things that probably require clarification. From what Mr Welsby has just said, I was quite closely connected with the Pacific National arguments before Senior Deputy President Hamberger and I would like to go into those probably in some detail in a minute. When we were last before the Commission on 26 November, the RTBU tabled a document which summarised the arrangements in relation to the national health assessment standard which had been agreed with other rail organisations. I think you marked it one.
PN227
THE COMMISSIONER: Yes.
PN228
MS VAN BARNEVELD: This document has actually been updated slightly just to include the arrangements which are now in place at Pacific National as a result of Senior Deputy President Hamberger's decision. I did include those in the parcel of documents which I sent to the Commission and it was at that stage marked RTBU5.
PN229
THE COMMISSIONER: Yes. What I might do, would it be appropriate to take RTBU5 and mark that as the updated version of U1?
PN230
MS VAN BARNEVELD: Yes, that is fine.
PN231
THE COMMISSIONER: So I will put U1 on top of that and that will supersede, it will totally supersede the previous U1.
PN232
MS VAN BARNEVELD: Thank you, Commissioner. Commissioner, Mr Welsby gave the impression that there are only really two organisations which pay effectively a four hour payment for conducting the pathology part of the health assessment. I won't take you through the detail of that document which has now been marked U1, but I would like to draw to the Commission's attention that besides the anomaly in Victoria, where an 11 hour payment for fasting is provided to workers, and that certainly isn't the position of the union in this case, there is a national standard in relation to payment for the blood test component of the medical assessment and that is four hours.
PN233
I can assure the Commission and Mr Welsby that at RailCorp, the agreement was effectively for four hours for the blood test and four hours for the medical and that can be demonstrated by the fact that in the RailCorp EBA and in the Pacific National EBA and I presume in others, there is actually a requirement or a provision that entitles workers to four hours for any health assessment, so that four hours for the medical already existed. It just went down to the parties to actually have a debate about how much time was going to be paid for attendance at the blood test.
PN234
So at RailCorp, ARTC, Queensland Rail, ARG/ASR, the workers are all entitled to a four hour payment for the blood test component. The structure of that is effectively as Mr Welsby explained, at these organisations the workers are given an eight hour shift and do undertake the blood test in their own time. The reason for that is purely for rostering purposes and I think we might run up against this probably in TransAdelaide as well and I am probably going to cut across two of the issues before the Commission today, because we would argue that the blood test should not be conducted at the same time as the medical and I can go into those arguments in a minute. I know from discussions with Mr Welsby that TransAdelaide prefers to do it on a same day for rostering problems and I know that at RailCorp and Pacific National and other organisations, the reason workers do it in their own time is precisely for that reason.
PN235
The rostering complications of trying to give people two separate periods off in work time to do a blood test a week at least before doing their medical and then giving them another four hour block to do the medical just logistically became far too difficult, and certainly that is one of the arguments that was raised quite a lot in the discussions before Senior Deputy President Hamberger as well, so I don't know whether TransAdelaide is going to raise some of those concerns later on, and the RTBU's position in this case, as it was in the Pacific National case is that we are happy for our members to do it during working time. The only thing is, logistically, it just becomes too difficult. I mean, there is massive shortages of train drivers, who are predominantly the main group of workers that fall under category 1 and organisations just find it too hard, as I said, to roster them two separate periods.
PN236
THE COMMISSIONER: Are you saying that so far, TransAdelaide has been able to manage it, but you don't suspect they will be able to manage it forever?
PN237
MS VAN BARNEVELD: I would argue that they haven't been managing it, Commissioner, because they are doing it at the same time. That is how they have managed it and they are doing it incorrectly.
PN238
THE COMMISSIONER: I see. All right.
PN239
MS VAN BARNEVELD: The other thing, Commissioner, which I will just note in relation to Mr Welsby's document which was marked TA9, he gave some statistics which have been prepared by TransAdelaide to argue his case that two hours for a worker who does have the blood test done in their own time is fair and reasonable. In his examples, he was pushing quite close to his two hours and I would argue that in none of the cases in the other companies has there ever been any discussion of how employees are to get their payment for travel or car use or petrol or any of those things, so if you were to factor in those into Mr Welsby's calculations, you may well push it well over the two hours that he has calculated as being a fair payment.
PN240
In any event, I would argue very strongly before the Commission that particularly since the decision or the recommendation handed down by Senior Deputy President Hamberger on 15 December, that a four hour payment formulized however you would like it to be, because the Pacific National decision is a little bit different and I can give you the history behind it, is a national standard for pathology testing, for workers who do the tests in their own time in the rail industry.
PN241
Just to clarify before the Commission as well, the RTBU believes that the decision by Senior Deputy President Hamberger is applicable to the current dispute over payment with TransAdelaide. I wasn't quite clear on Mr Welsby's reasons, except for the requirement obviously to do it in your own time. At Pacific National, there are some workers who do do it in rostered time and most of the time they get an eight hour shift similar to RailCorp to do it.
PN242
Now, there have been cases, I think in Western Australia certainly and I could provide the Commission evidence in relation to that where workers have been rostered to do it and just effectively given the entire shift to do it, so that means by default they are getting the RailCorp position and the position in other organisations of an eight hour shift and they have done the medical and the blood test together and the only reason that was done is because they were running up against time constraints for expiration of pre-existing medical.
PN243
They have done it at Pacific National during rostered time and there were some discussions between the parties in relation to how we would reach an agreement for more workers to do it during rostered time, and I think even though it is not reflected in Senior Deputy President Hamberger's decision and TransAdelaide is trying to place a lot of weight on the words, "requires the drivers to have the blood test in their own time", that firstly is only due to rostering constraints within Pacific National and also is only the case, (1) because an agreement hasn't been reached yet, but the union had made it reasonably clear that we would be quite amenable to that position, so I don't think you can put so much weight on the words "requires the drivers", as you may have put in your submission.
PN244
In any event, Mr Welsby has indicated that there will be conditions where situations where workers at TransAdelaide do give blood in their own time, and I would argue that if the medicals are done according to how they are supposed to done, ie. a separated pathology and medical assessment, then perhaps TransAdelaide's position on requiring workers to do it in their own time might change and you might find that there will be more workers doing it in their own time than in work time, just because of rostering constraints and these would be exactly the same pressures then experienced by these workers as what is experienced by Pacific National workers who have to do it in their own time.
PN245
The key issues which were argued by the union before Senior Deputy President Hamberger was basically the pressures of shift work on workers who worked at Pacific National and the fact that often, time constraints as a result of shift work were such that workers couldn't easily fast and then have a blood test on their day off, without firstly significant disruption to their personal life and often recovery time from working shift work and also without significant prior planning. We can get to the notice issue as well later, but I will just leave that for the moment.
PN246
THE COMMISSIONER: What fasting period were they working on the basis of?
PN247
MS VAN BARNEVELD: It was between eight and 12 hours, as per the recommendation, but there was no - - -
PN248
THE COMMISSIONER: Eight and 14 is the recommendation, isn't it?
PN249
MS VAN BARNEVELD: Eight and 12 - - -
PN250
THE COMMISSIONER: And 12 I think is what TransAdelaide works on, I think, but, anyway, it is anywhere between eight and 14.
PN251
MS VAN BARNEVELD: Eight to 12 or eight to 14. It wasn't - it is the standard, the same that applies to everyone else and in fact
I note, I think that Pacific National were generally saying 10 hours in the information they provided to workers and TransAdelaide
says 12, I think generally, and I have rung a
few - - -
PN252
THE COMMISSIONER: 12 sticks in my mind, I think.
PN253
MR WELSBY: 12 is definitely the requirement of our medical provider.
PN254
MS VAN BARNEVELD: I have rung a few South Australian pathology labs, and they all told me I had to fast for 12 hours before I did my blood test. So his Honour when handing it down, took into account that it isn't as easy as he thought, because originally he had basically said, well, why can't they do it on their way to work? I do. I give blood sometimes and I just go down to the pathology unit and it takes five minutes, I am in and out and it is done, and we provided some letters from members and we have a copy of one which we can provide to the Commission as well, which shows that notice is not necessarily given to workers in a timely fashion and I think TransAdelaide is a bit better at giving notice that Pacific National was.
PN255
It really is quite impossible for a shift worker to be able to fast, given their eating habits are all messed up and their rostering arrangements. We have got, just for your information, a copy of the master roster from TransAdelaide. Unfortunately, we couldn't get a copy of an actual roster, mainly because, and this is no fault of - we are not using this as a negative argument or otherwise, because it is our members that do it, but quite often compared to the master roster, in actual hours worked, members will swap shifts due to a mutual shift swap arrangement, which will mean what they work is effectively different to this, but this will give you an idea of the sorts of hours that people might be working and then you could give consideration as to when or how difficult it might be to fast. So I am happy to hand that up.
PN256
THE COMMISSIONER: Yes, please.
PN257
MS VAN BARNEVELD: If you need an explanation of it, I think Mr Hancox will have to take you through it.
PN258
THE COMMISSIONER: I think I will need a bit of explanation here, I think.
PN259
MS VAN BARNEVELD: I will get Mr Hancox to explain it, because he is better placed to go through it than me.
PN260
MR WELSBY: Can I just get a clarification before Ray starts, is that the actual roster for that period?
PN261
MR HANCOX: That is the actual master roster for the period, yes.
PN262
MR WELSBY: Master roster or period roster?
PN263
MR HANCOX: Period roster.
PN264
MR WELSBY: Okay, just clarifying that, Commissioner, because we have what we call a master roster that sets down all of our jobs and then on a fortnightly basis I think it is, we fill that in with people's names.
PN265
THE COMMISSIONER: Okay, so this is the actual period roster?
PN266
MR WELSBY: Yes.
PN267
THE COMMISSIONER: And the only change to this would be where there is a shift swap mutual arrangement?
PN268
MS VAN BARNEVELD: Or if someone called in sick.
PN269
MR HANCOX: It is not an easy document to follow, Commissioner, but at the top of the page you have got the dates, Sunday, Monday, Tuesday, et cetera and the followed by the day of the month. The start time is shown on there, but the finishing time is a little bit different. You have to compare it to the master roster, rather than just look at the period roster. The start/finish times are often different on days, consecutive days, for instance on line D4326 you will see a start at 1710, a start at 1722 and another start at 1710 the following day, 1754 et cetera.
PN270
MR WELSBY: I am not sure that Ray is reading that right. I don't believe that they are the start times. I believe they are the schedules.
PN271
MR HANCOX: That is the sequence, I am sorry.
PN272
MR WELSBY: I don't think those numbers that are there are people's sign-on times, because if you look at the second person, Parker, 5713 is not a sign-on time, so I think they are their schedules. There are no sign-on times on that roster.
PN273
MR HANCOX: Well, it looks like I might have to gather further information on that one and just match it up with the master roster.
PN274
MR WELSBY: What they do is they compare this period roster with the master roster, they see that they are on schedule 5713 and from the master roster, they pick up when the sign-on and sign-off times are.
PN275
THE COMMISSIONER: Yes, if that is the case, if you want, I think perhaps we had better ignore this for the time being, so we will withdraw exhibit U6, it won't be exhibit U6, we withdraw it for the time being.
PN276
MR HANCOX: I apologise for that. Commissioner. All we were trying to show was that these people are shift workers just like those people at Pacific National. They do start and finish at different times each day. Quite often they will work three afternoon shifts, have a day off and then come back on a morning shift and all we were trying to demonstrate is the difficulty of looking in a master roster like this, projecting a month in advance that Mr Welsby is due for a medical and then try to slot him in on a roster which changes daily.
PN277
MR WELSBY: I probably wouldn't dispute anything that Mr Hancox is saying in terms of the difficulties with rosters and maybe it might confuse the Commissioner, given that that roster you have seen there, if we produced another one for you to try and look at as well, so I am happy to concede that it is not the easiest thing in the world for you to slot a medical into someone's roster.
PN278
THE COMMISSIONER: No, and I suppose given the sort of patterns that Mr Hancox has talked about, I mean, I hate to think what eating patterns would be there, I suppose, although presumably people get to have a meal some time shortly before they start work and at the end of it I would imagine, somewhere in the middle - - -
PN279
MR HANCOX: That is correct and it is complicated further by the issue of what we call workers' directed shifts, where the worker isn't actually allocated any work, but he might come in that day and find that he is working a broken shift from 7 am in the morning to 7 o'clock at night. He has his meal in the middle of the shift. He might then, as Mr Welsby said, book off at 7 o'clock and be rostered on for a medical at 7.30 the following morning, which effectively means he has been fasting for something like 20 hours or more, which makes eating - - -
PN280
THE COMMISSIONER: Are we having problems not talking into the microphone? Just remember when any of you when you speak, to make sure you get a microphone.
PN281
MR HANCOX: So that is all that we were trying to demonstrate, that in fact TransAdelaide is not a great deal different to Pacific National or any other rail operating company and that their drivers do shift work, their rosters are a little bit difficult to manage and I believe that is why Senior Deputy President Hamberger gave the one month raise up to 31 March and then in Pacific National's case, it said well you need to give your drivers two months' notice of a medical and pathology test.
PN282
MS VAN BARNEVELD: I think Mr Hancox just stole a little bit of my thunder, but I will get to that in a minute, because we are crossing over into the issue of notice periods as well, which I am happy to jump to, but I thought I would just very quickly take you through Senior Deputy President Hamberger's recommendation which both the parties have accepted. The RTBU did seek in January some clarification before the Commission in relation to some of the intricacies of the decision and I can explain those as well.
PN283
THE COMMISSIONER: So this is TA11 we are looking at?
PN284
MS VAN BARNEVELD: Yes. I think the most important parts of his Honour's decision are on the second page and he recognises that while the blood test as Mr Welsby has pointed out, is a fairly short procedure. He said that drivers resent the intrusion into their private time and also the question of notice came in. He said:
PN285
In recognition of the inconvenience caused to drivers by the blood test, the company is currently paying them a $65 allowance and this is broadly equivalent to two hours' pay.
PN286
Now, this $65 allowance that Pacific National is paying is something that it arbitrarily had decided to pay to drivers, similar to TransAdelaide. Pacific National had decided that the pathology part of the medical was equivalent to two hours' pay. His Honour said:
PN287
I do not consider that a payment of $65 adequately compensates the employees for having to make a special visit to the pathology centre on their day off. Accordingly, in addition to continuing to receive the $65 allowance, drivers who need to undergo a blood test in their own time should also have two hours credited to their hours bank. This emphasises that the private time of the driver is being intruded upon.
PN288
The union sought clarification because on discussion with some of, in fact most of the Pacific National depots, it turned out that their rostering arrangements were such that having two hours credited to their hours bank was effectively useless. It is a very detailed arrangement, but sometimes they don't work up to the prescribed number of hours in a period, so having two hours credited when you already haven't worked enough hours was completely irrelevant. So the union sought some clarification in relation to that and Senior Deputy President Hamberger made it quite clear that he meant it to be an effective two hours and he directed Pacific National to make it such and he also confirmed that he intended it to be the four hours in a different form that was paid at other rail organisations. I can move into the notice period, if you would like, Commissioner, now.
PN289
THE COMMISSIONER: Yes.
PN290
MS VAN BARNEVELD: In this decision, Senior Deputy President Hamberger was concerned at the short notice some drivers had been given, both in relation to the blood test and their requirement to attend a medical and he recognised that this significantly increases inconvenience to drivers, particularly given the type of rostering arrangements they work under and rostering arrangements which we have just discussed, the RTBU contends also applies in TransAdelaide. Senior Deputy President Hamberger said that:
PN291
In most cases, the employer is well aware in advance of when a medical needs to be conducted.
PN292
This is also the case in TransAdelaide because TransAdelaide firstly knows they have to get everyone through within a certain period and also knows when people are up for expiry of their previous medical. To that effect, Senior Deputy President Hamberger recommended that:
PN293
All drivers who needed assessments from the end of March this year, get eight weeks in advance notice of when their medical assessment was due.
PN294
They were also to be advised at that time that they were supposed to do their blood test no more than four weeks before the assessment. If they didn't receive this notice, they were to be paid an extra $65 in addition to the 65 plus two hours already given to them and he had a breaking in or a lead in period, where he said that if drivers were due before 31 March, they were to be given four weeks' notice and if four weeks' notice wasn't given, then they were entitled to the $65 payment as well, so he recognised that notice was quite important for workers doing the blood test in their own time, particularly for shift workers.
PN295
I think we have some evidence that while TransAdelaide has been endeavouring to provide notice to its employees of the health assessment, there are circumstances where adequate notice is not being provided. Certainly the health assessment does require adequate notice.
PN296
MR WELSBY: Can I just interject here, Commissioner? I am just mindful of the time and that we have gone on to a new subject that wasn't the subject of the issues that we have talked about in terms of and agreed as the outstanding items. I haven't yet commented on, had the right of reply about the other issue about blood tests as yet, so I am not sure whether we should go onto that next item in terms of timing at this point.
PN297
THE COMMISSIONER: No, well, if it is a new point, I am happy to adjourn.
PN298
MS VAN BARNEVELD: I am happy to do it after lunch, it is just that they are so intertwined, but - - -
PN299
THE COMMISSIONER: Just before we conclude, just one question, the question I asked Mr Welsby earlier. All other things being equal, I know they never are, but all other things being equal, it is the right thing to have employees do the blood test in the company's time, isn't it?
PN300
MS VAN BARNEVELD: The union doesn't have any problem with people doing it in work time.
PN301
THE COMMISSIONER: As I say, all other things being equal, that is appropriate. Now, I can accept that somebody might say I would rather do it on my time. In my own experience, I am not a train driver, of course, but in my own experience, if the employer is offering for me to have a blood test in the employer's time, why on earth would I want to do it in my own time? I can't work that out. I presume as Mr Welsby said that some people have got - some people might want to. Do you have any comment about that?
PN302
MS VAN BARNEVELD: There have also been workers who have been requested by TransAdelaide to have blood tests in their own time, for example, Craig Rogers was requested to do it during his annual leave.
PN303
THE COMMISSIONER: I can understand if TransAdelaide directs people to have it done in their own time, that seems to me to be, that is a different situation.
PN304
MS VAN BARNEVELD: And they have done that.
PN305
THE COMMISSIONER: Right. Well if they have, that might be a different situation, but if a worker says, no, look, I have no objection to having it done in the company time, but I think I would prefer to do it on Saturday morning for some reason or other, why on earth would they want to do that?
PN306
MS VAN BARNEVELD: Well, I think as Mr Welsby suggested, there might be people, who for fear of needles reasons, I don't know, may prefer to go to their own GP. I certainly fall into that category, but I wouldn't imagine that the group of workers who would fall into that category would be particularly huge. My biggest concern is that once we have the discussion in relation to whether or not you can have a blood test and a medical at the same time, it is going to force TransAdelaide into a rostering position which I suspect would encourage them to take a position of requiring people to do it in their own time. So in addition to presently asking people to do it in their own time because their current medical is about to expire and they are running out of time, that is the circumstance where people have been required to do it at this point, in their own time, I think that there could be this problem.
PN307
THE COMMISSIONER: In regard to this issue about whether you do the blood test and the medical at the same time, the same day, is it the argument there you want to put to me is an industrial relations argument, or is it a medical type argument?
PN308
MS VAN BARNEVELD: Well, it is straight out of the medical standards, so I suppose, yes, it would be a medical argument, but it is documented quite reasonably clearly in the medical standard that you are supposed to have your blood test at least one week before conducting the medical, and I have got - Mr Alex Classens sat on the NTC reference group that drafted the document and he has written something to the Commission explaining why that is the case and I was going to seek a document from Jan Powning, but ran out of time, who is from the Department of Infrastructure down in Victoria who was instrumental not only in drafting up the Victorian standard, but also in the National standard and I can almost guarantee she would agree.
PN309
THE COMMISSIONER: Why, then, wouldn't the Mile End Clinic agree if they are the accredited ones doing all this? You would think they would blow the whistle and say, no sorry, got to have a blood test weeks earlier.
PN310
MS VAN BARNEVELD: No, I haven't had any discussions with the Mile End Clinic in relation to that, so, I mean, I presume they are being paid by TransAdelaide.
PN311
THE COMMISSIONER: Sure, but at the end of the day, Mile End Clinic, they are the people accredited to ensure that the people working on our rail system are fit and healthy.
PN312
MS VAN BARNEVELD: Yes.
PN313
THE COMMISSIONER: And if there is something wrong with having a blood test and having the medical on the same day, shouldn't they be the ones to say, no, no, this isn't right? Mr Hancox?
PN314
MR HANCOX: I think it is a little bit difficult for any medical practitioner to - and if you look at all the forms that we haven't brought along with us today, and perhaps that a bit remiss of us, there are several forms which an employee takes along to the Mile End Clinic. One of them is a questionnaire about his or her health habits, you know, how much do you smoke and how often do you drink and little things like that. But there is also little pointers. The blood test actually demonstrates whether someone has a high cholesterol level or whether they have a sugar problem or whether there is a weight problem or whatever and I just fail to see how a doctor can certify anyone as being medically fit to perform the task required until he has actually got that blood sample. They don't know the right questions.
PN315
THE COMMISSIONER: Well, presumably they don't until they do subsequently get the blood test back.
PN316
MR HANCOX: But aren't we then taking a chance that, you know, we will send Mr Welsby along for a blood test at 8 o'clock in the morning, bring him back to Adelaide station and give him his hour off and then take him back to Mile End and give him a medical and then we will bring him back and give him some training, but the next day he might take up his normal rostered work?
PN317
THE COMMISSIONER: Yes, but he still hasn't been certified at that point fit or not.
PN318
MR HANCOX: He still hasn't been certified as fit to drive. What happens if that person collapses at the control just like Waterfall?
PN319
THE COMMISSIONER: Well, he hasn't been tested yet, and so you have to take that into account.
PN320
MR HANCOX: That is the difficulty.
PN321
THE COMMISSIONER: You see, it is a bit like - I know everyone will use their own personal experience here, but every time I have had a medical, I go to my GP, the GP will take the blood, give me a medical and then call me a few days later if there is some problems with the blood test, but I don't get the clearance from him until such time as I ring up to say was there anything wrong in the blood test? Well, I want to talk to you about your cholesterol or whatever, so it is a sign-off from the GP until he has looked at the blood test results some days later. Now TransAdelaide would have to take that into account in terms of the timing of all of this, you know, when people are due for it and so on.
PN322
MR HANCOX: The circumstances - - -
PN323
THE COMMISSIONER: If I am due for it today, if I am due for it today and I have everything done today and Mile End certainly wouldn't have the blood test results for another day or two or three, then what Mr Hancox says is true. If you put me out driving trains tomorrow, I am over the time when I should have been tested, Mile End hasn't signed me off because they haven't got the blood test results back yet, and I am sort of operating illegally, you know what I mean?
PN324
MR WELSBY: But what I would say is that that is no different to the circumstances if you have a blood test a week before the medical. You are still working in that week period before you go to the doctor and the blood tests are analysed in terms of the medical as well. So there is always going to be that gap between having the blood test and the results being known and you getting the certification.
PN325
THE COMMISSIONER: The question is, am I over my two year period of time or whatever, isn't that the critical issue? If my two years, I have to have it every two years. If my two years expires today, at 5 o'clock today and I am at the moment having my blood test and whatever and then you are putting me out back on driving trains tomorrow, then I am out there swinging in the breeze, aren't I? I mean, I am not covered. If my two years is up a week today, 15 February and I am having my blood test and medical today, well, I should get the result of the blood test and all that sort of stuff within the next seven days, I should be okay.
PN326
MR WELSBY: Look, I am not sure of our regime, how far in advance we do it or when people are actually due. You know, are they due on the first of the month and therefore we make sure we do them in the month before? I couldn't answer that one for you. I would hope that we provide ourselves with that lead time, but I can't say that we do.
PN327
THE COMMISSIONER: Look, in view of the time and I know that we are going off on some tangents a little bit, let us pick up the threads after lunch. We will adjourn at the moment and perhaps you might, Mr Welsby and Ms Van Barneveld might talk about where you are at in terms of that particular issue four, whether we are up to a quick response from Mr Welsby or whether you have some other things to say. We will pick that up, no earlier than 2.30, but essentially we will start when you get here.
<LUNCHEON ADJOURNMENT [1.01PM]
<RESUMED [3.31PM]
PN328
THE COMMISSIONER: Now, Ms Van Barneveld, I think we were with you and how do we pick up the pieces?
PN329
MS VAN BARNEVELD: Hopefully I can be a bit more succinct. What we did during our break was the union drafted up some words which we thought might go some way to addressing TransAdelaide's concerns. It has transpired, Commissioner, that one of the reasons TransAdelaide is nervous about the 4 hour payment is that they are worried that there will be a flood of employees putting their hand up to rush to do it in their own time, if that was to be the case, or if TransAdelaide were to agree to that.
PN330
Our view is, quite clearly, that that actually would not be the case, because workers at TransAdelaide already work so many overtime shifts and so much work, the last thing they would want to do in their own time is something which entailed more work, but, that was where we were at, so we drafted up some words during the lunch break - the union did - and put them to TransAdelaide. I can read them - it is:
PN331
Where applicable (according to the health assessment category) the blood test and medical components of the National Health Assessment for Rail Safety Workers are to be conducted in normal rostered working time. If for personal reasons or at the request of TransAdelaide the worker undertakes the blood test in their own time, they are entitled to a 4 hour payment. It is understood that having the blood test in a worker's own time is not the norm and will occur in limited circumstances only.
PN332
However, we gave a copy of those words to TransAdelaide and they were not happy with them, so we are back here debating it again. Just to sum up, I think the union's position - TransAdelaide - the cornerstone of TransAdelaide's argument is the wording in Senior Deputy President Hamberger's decision that the employer requires drivers to have the blood test in their own time. I would argue that it is actually not as clear cut as that, and indeed, if you read the next sentence in Senior Deputy President Hamberger's recommendation, he also notes that:
PN333
The driver generally needs to attend a pathology centre, although in some cases there appears to be the scope for a nurse to visit the work site to conduct the test.
PN334
So, I do not think it is quite as clear cut as TransAdelaide is making out, and, yes, while the preference is, due to rostering constraints, for workers to do the blood test in their own time, there is certainly examples in Pacific National and in those other organisations which are included in the table, I think union submission 1, indicates that there is some flexibility in relation to that and that the term requirement is not necessarily the lynchpin of his Honour's decision. So, the union seeks that the Commission recommends that for those who do the medical in their own time, the payment is the rail industry standard of 4 hours.
PN335
TransAdelaide also, in our discussions during the break, suggested that they were not particularly interested in having the ability for TransAdelaide to require a worker, in certain circumstances, to do the blood test in their own time because they guaranteed that it would always happen during rostered working hours.
PN336
What I did not hand up before, Commissioner, is an example of one case where a worker has been requested, and agreed, to do the blood test in his own time, and that was a panic because his accreditation was about to expire, and he did that and we are seeking - sorry, this is included in the parcel of documents you have already got - I think it was originally at RTBU7 - it is a letter, it says attention Ashley Wodell, and it is a letter from a Mr Craig Rogers.
PN337
THE COMMISSIONER: Yes. Wodell, is it, W-o-d-e-l-l?
PN338
MS VAN BARNEVELD: Yes, and what this letter effectively says is that towards the end of his annual leave, he received a phone call from TransAdelaide asking if he could do the blood test because 30 November deadline was drawing near and he was on annual leave at the time and he did have the blood test in his own time, so I think it would be remiss of TransAdelaide to suggest that there will not be circumstances where they do need to call on a provision which gives a worker some kind of entitlement for having the blood test in their own time, so as I said - - -
PN339
THE COMMISSIONER: Now, that was from Mr Rogers, who is employed - who is Mr Wodell?
PN340
MS VAN BARNEVELD: Ashley Wodell is a - what is his position? - National Organiser, working out of the South Australian branch of the union.
THE COMMISSIONER: The union - right. So are we up to U6 - yes, because the other one we withdrew.
EXHIBIT #U6 COPY OF LETTER FROM MR ROGERS TO MR WODELL DATED 01/02/2005
PN342
THE COMMISSIONER: And just again, the union's views on why, under normal circumstances, an employee might want to do things, do these tests in their own time. What are the sorts of reasons why?
PN343
MS VAN BARNEVELD: Our position is similar to that already explained by Mr Welsby in that they may just have a preference to go to their own doctor. Besides that, we cannot envisage, unless TransAdelaide is going to request someone to do it in their own time because of time constraints, or desperation because an accreditation is going to expire and the RTBIU does - it is not our position that we expect the majority of employees to then attempt to do this in their own time. I mean, as Ray was explaining to me before, TransAdelaide workers work enough hours as it is and I do not think they are particularly interested in trying to, you know, open a floodgate, to all run and do the medical in their own time when they just do not have enough time off as it is.
PN344
THE COMMISSIONER: Okay.
PN345
MS VAN BARNEVELD: So, I mean, we would seek that the Commission does grant the union's claim of the national standard in the rail industry of 4 hours, but again, I mean, as the words we suggested earlier, we would be more than happy for those to be limited to, you know, virtually exceptional circumstances because our position is that people should get this done in work time, but we also recognise that there are circumstances like Mr Rogers, where that is not going to happen or circumstances, and again probably rare, where people have, you know, an overriding preference to go to a doctor that they are familiar with. We would argue that the 4 hours recognises, as Senior Deputy President Hamberger recognised, the rostering arrangements and the difficulty of workers trying to fit pathology tests in their own time, particularly if required by, or requested by their employer, as in Mr Rogers' case.
PN346
Keep in mind also, Commissioner, that not too many workers at TransAdelaide have had their medicals and their blood tests to date and we imagine that, you know, there are going to be an awful lot more people going through these tests in the near future because there is a deadline for everyone in all rail organisations to be tested and that is coming up. So, there are going to be circumstances where you are going to have to start pushing people through as well, otherwise you will hit up against the deadline. Also, we would argue that in some circumstances where a worker is requested to do it in their own time, it does cost potentially more than 2 hours, particularly when you do factor in things like the cost of using your own vehicle or public transport to get to the pathology centre and back again. As I said though, Commissioner, I would reiterate that we really do expect that those circumstances would only cover the odd exception rather than the majority and I think we will have to hand it over to TransAdelaide.
PN347
THE COMMISSIONER: Okay. Thank you.
PN348
MS VAN BARNEVELD: Thank you.
PN349
MR WELSBY: Before I respond to that, Commissioner, I also want to inform the Commission that the form of words in relation to the income maintenance clause about temporary incapacity is acceptable to TransAdelaide and we will amend that accordingly and advise the union and, accordingly, I believe that that issue is now not requiring the Commissioner to arbitrate.
PN350
THE COMMISSIONER: Right. So issue two is fixed
PN351
MR WELSBY: Correct.
PN352
THE COMMISSIONER: And we will note - if you like, I will note that in my final decision, anyway, that has all been picked up. I will pick it up from the transcript that that has been agreed. Excellent. So that is issue 1, issue 2 and issue 4.
PN353
MR WELSBY: I just wanted to respond to some of the things that have been put by my colleague in relation to issue 4, if I could.
PN354
THE COMMISSIONER: Right, yes.
PN355
MR WELSBY: Ms Van Barneveld - and I will probably get that name clear in my head by the end of these proceedings - has talked about a national standard. I think she is playing on words in calling it a national standard. I accept that there are a number of national organisations that pay an 8 hour shift for the blood test and the medical assessment, but I do not think you can call it a national standard as such.
PN356
Some of those organisations that are used in there as being relevant, such as Pacific National, ARG, Queensland Rail, et cetera, we would argue are quite different to TransAdelaide in that they are - in general they involve the working of freight trains, which is long haul and the rostering arrangements associated with them are quite different to what they are with TransAdelaide and one of the reasons we say they are different is that they have limited options for work to be performed on the shift that the medical assessment is performed, whereas we have put it to the Commission that we are able to provide options for the residual amount left over when people do their blood test and their medical, in that we will provide them with training for the 8 hours of the shift.
PN357
So, I think that is significantly different for us. We also heard that the 2 hours is not considered to be sufficient time for people to be able to attend for a blood test in their own time, involving the travel component and the blood test itself. If I could perhaps refer to that U6 document that was tabled just recently, you will note about three-quarters of the way down the page there, through Mr Rogers' letter, where he says:
PN358
I had a blood test, travel, test, travel, half hour.
PN359
So that is pretty consistent with what TransAdelaide has put to the Commission in that the period of time required for someone to go and have a blood test when they are undertaking it in their own time is completed well within the 2 hour period, and therefore, by any stretch of the imagination, is generous for a person who undertakes the blood test in their own time.
PN360
Further in relation to that letter of Mr Rogers, I just would probably say that from our point of view, that is a one off aberration. It happened, it should not have happened, and it will not happen in the future. There is certainly no intention by the organisation that we would expect people to undertake the blood test in their own time.
PN361
In relation to that Pacific National decision and Senior Deputy President Hamberger, I think it is important for the Commission to understand some of the circumstances that were presented in transcript, in that a lot of reliance was placed on a particular station or a particular home station of Pacific National, that being Dimboola and the fact that people who were home stationed at Dimboola and working out of Dimboola got to spend very little of their time off between shifts and booked off at Dimboola. They often had - their period of 12 hours between shifts was spent in Melbourne on a layover and so therefore it was reasoned that their time off duty in Dimboola was pretty precious in terms of family. I would argue that is not the situation in TransAdelaide.
PN362
People are always booked off in their home station because they do not travel out of Adelaide other than to work the suburban network during their period of work in a shift, so I think the fact that Senior Deputy President Hamberger was saying that there is an intrusion into people's time is different to what it is in TransAdelaide and therefore what he provided in terms of payment, bearing in mind that it was already a requirement that people there would undertake the blood test in their own time, is different as well.
PN363
THE COMMISSIONER: What are the outer limits of the TransAdelaide coverage?
PN364
MR WELSBY: Gawler would be the furthest station.
PN365
THE COMMISSIONER: Gawler to - - -
PN366
MR WELSBY: Adelaide to Gawler. There are people stationed at Gawler, yes.
PN367
THE COMMISSIONER: Right.
PN368
MR WELSBY: So we would run trains Adelaide to Gawler and return.
PN369
THE COMMISSIONER: And down south?
PN370
MR WELSBY: Noarlunga.
PN371
THE COMMISSIONER: So it is metropolitan limits, is it?
PN372
MR WELSBY: Correct. So I guess in conclusion we would just reiterate that TransAdelaide is not requiring any employee to attend for the blood test in their own time. They are doing so by choice and they should not be rewarded over and above what it takes for them to attend for that blood test.
PN373
THE COMMISSIONER: Anything further?
PN374
MS VAN BARNEVELD: I just want to clarify one or two things, if I could please, Commissioner. Just in relation to the Pacific National dispute, the only reason Dimboola is mentioned so much is because that was where the dispute arose. It was a dispute arising out of the Dimboola depot. You will also note that I think Melbourne freight terminal is mentioned a fair bit in that transcript because there was - that was the only other place the dispute notice arose at that point and that is the reason.
PN375
In the discussions in relation to that case I am not sure how much weight could be put on the fact that Dimboola drivers did have layovers in Melbourne, because I certainly recall comments from the Senior Deputy President that the workers could have had the test in Melbourne during one of their layovers, which are a substantial number of hours, say 10 to 16 probably, depending on the roster, so he certainly did think that that was a possibility as well. Thank you.
PN376
THE COMMISSIONER: Right. Mr Welsby, issue 3?
PN377
MR WELSBY: I am not in a position at this point to put forward TransAdelaide's position. I believe that we can probably resolve that issue.
PN378
THE COMMISSIONER: Issue 3?
PN379
MR WELSBY: But I need to take some instructions in relation to that.
PN380
THE COMMISSIONER: Okay.
PN381
MR WELSBY: We seem to have a conflict between two letters that were sent for the union, both proposing different responses, so I need to have that clarified and I believe that we will probably go over until tomorrow and I will undertake to have that for the Commission by tomorrow morning.
PN382
THE COMMISSIONER: Right, and it may be resolved by then?
PN383
MR WELSBY: Yes.
PN384
THE COMMISSIONER: Okay. That would be terrific. So, now, what about these other matters? There were some other matters outside those four.
PN385
MS VAN BARNEVELD: Commissioner, the next one actually I do not believe sits outside the four, and this relates to notice periods given to employees. It was flagged by Mr Welsby as an outstanding issue, potentially, in the letter that went to the Commission, and I am happy to address that now. The other two in my list were the practice of requiring the blood test and the medical to be carried out at the same time.
PN386
I am not sure whether or not we need to seek some expert medical opinion in relation to that, that the union does not have at this stage. We do have comments from someone who actually sat on the panel that developed the standards, but in conversations that we have had outside the Commission with TransAdelaide this afternoon, it seems that the union might need to seek some clarification from firstly Dr Bruce Hocking who was, from what I can gather, the chief medical person working on the standard.
PN387
The other person is the doctor at Mile End clinic to find out on what basis he thinks the blood test and the medical can be carried out at the same time. I just do not think that we have the medical expertise to be able to do that. And I had sought - obviously I have got one statement to support why they should be done separately and certainly the standard contains some information to suggest they should be done separately, but I think it would useful to clarify both the positions.
PN388
THE COMMISSIONER: Yes. What bothers me about this is that it seems to me that if there is some dispute about that, it is really to be sorted out between relevant medical people, to some extent.
PN389
MS VAN BARNEVELD: Or the regulator.
PN390
THE COMMISSIONER: As I was saying before lunch, if those who set the standard believe that it should be separate, well, they need to have that debate with the accredited people who do the test, the Mile End clinics and whatever.
PN391
MS VAN BARNEVELD: Yes.
PN392
THE COMMISSIONER: They need to have that debate there and sort that out between them. It is certainly not for any of us in here, it would seem to me, to tell the Mile End clinic what is right and what is not. I am decidedly uncomfortable about that.
PN393
MS VAN BARNEVELD: Yes. No, I agree.
PN394
THE COMMISSIONER: So - yes. I do have some discomfort with that whole thing. It seems to be - - -
PN395
MS VAN BARNEVELD: Well, perhaps we take it off the table now and do some more investigation in relation to it and talk to the regulator and see what their interpretation of it is as well.
PN396
THE COMMISSIONER: Mr Welsby might be able to answer this, but how does the Mile End clinic get accredited for this? Who gives them the tick? Is that the national accreditation people in the first place who set all these standards? I mean, you cannot go to an ordinary GP if you are a train driver. You cannot go to an ordinary GP and get the big tick, as I call it, to say yes, I am medically okay to drive a train. You have got to go to a special person who is accredited. Mile End are accredited. Who accredits them?
PN397
MR WELSBY: It is not necessarily Mile End who is accredited, it is particular doctors there.
PN398
THE COMMISSIONER: No, I know, there are others. And there might be other GPs who get it.
PN399
MR WELSBY: Yes.
PN400
THE COMMISSIONER: But how do they get the tick?
PN401
MR WELSBY: I could not answer that off the cuff for you, but I am sure if we refer to the standards in a break, I am sure there is a statement in there, how they get that accreditation.
PN402
THE COMMISSIONER: I would have thought there would be something in the standards.
PN403
MR WELSBY: Yes.
PN404
THE COMMISSIONER: So presumably, the people who set the standards are a combination I suppose of medical people and OH&S people and experts, right. They are experts who set the standard. Now, if they accredit the medicos, surely the accredit them on a certain basis and it is that lot, the accreditors and the accreditees who ought to sort that through, it seems to me.
PN405
MR WELSBY: I think in terms of what Ms Van Barneveld has put to you, I think what threw her today was that she had this advice from a particular person who was a member of the medical panel that set these standards, but also in addition to that, we put to her that Dr Drew from the Mile End Health Clinic was also part of that project team, so if he is saying that it is all right, then who are we to argue with it because he was part of the group that set the standards on the medical side of things?
PN406
MS VAN BARNEVELD: I think the position is that generally it is the rail regulator who sorts out disagreements or misunderstandings or interpretations in relation to this and certainly we have a letter from the regulator about the drug testing forming part of the medical or otherwise and so perhaps it is up to the parties then to contact the regulator to seek some clarification in relation to that and then I presume they would go and seek medical advice before they made that, but maybe that is the best way forward at this point.
PN407
THE COMMISSIONER: Yes. I think perhaps, if the parties are going to have some further discussion, have a think about that, anyway, between now and tomorrow, that would be useful.
PN408
MS VAN BARNEVELD: Okay.
PN409
THE COMMISSIONER: All right. Now, how can we usefully use any remaining time today?
PN410
MS VAN BARNEVELD: On notice periods.
PN411
THE COMMISSIONER: On notice periods? Okay, yes, and this really is - you do not see this as a separate issue, do you? You see this as connected, do you, with - - -
PN412
MS VAN BARNEVELD: Well, the only reason I - if you look at the facts agreed by the dispute in the letter that was jointly signed, it, says in bold on the top there - note, the union is not particularly happy or entirely happy with the words, wherever possible, so TransAdelaide will provide at least 1 month's notice wherever possible and we do have some concerns with the wherever possible.
PN413
THE COMMISSIONER: Right. Okay, I will hear from you, then, on that.
PN414
MS VAN BARNEVELD: Okay. Commissioner, the health assessment standard notes that the worker should receive adequate notice of the due date of their health assessment. I believe this document was originally handed up as RTBU6. I am not sure what it has become marked as.
PN415
THE COMMISSIONER: It has not become marked at all.
PN416
MS VAN BARNEVELD: It has not. Okay - I did not think so.
PN417
THE COMMISSIONER: So, it will be U7 if you want that marked.
PN418
MS VAN BARNEVELD: It is just, if you have a look at that, page 26 of volume 1 of the standard, 13.5.1 says the worker should receive adequate notice of the due date for their health assessment, so that was where we get that.
THE COMMISSIONER: Right, so, can I just then say that what we have got, the document headed RTBU6 which is an extract from page 26, volume 1 of the National Standard For Health Assessment Of Rail Safety Workers. That will become U7.
EXHIBIT #U7 EXTRACT FROM PAGE 26, VOLUME 1 OF THE NATIONAL STANDARD FOR HEALTH ASSESSMENT OF RAIL SAFETY WORKERS.
PN420
MS VAN BARNEVELD: Thank you, Commissioner. The RTBU also notes, Commissioner, a letter from Roy Arnold to Ray Hancox dated 30 August 2004 states that workers are to be given one month's notice of the requirement to participate in the health assessment. Mr Arnold suggests that this period is sufficient. The union notes, however, that recently there has been an increasing incidence of TransAdelaide giving workers notice - sorry, while there has been an increasing incidence of workers getting one month's notice roughly, there are also cases where this notice has not been given and an example of that is contained in the letter already marked by the Commission, I think, as U6, which is the letter from Mr Rogers.
PN421
I think Mr Gehangry has mentioned to the union that there are some other cases of short notice being given. Certainly this was something raised by the union in the debate that was had before Senior Deputy President Hamberger and it has already been recognised today that the rostering arrangements for TransAdelaide workers are similar to those, the pressures caused by shift work are similar to those experienced by TransAdelaide workers. I do not think that is contentious and in recognition of the type of work or the hours worked and the requirement to fast prior to having a blood test, which we do not contend, that is done in the worker's time, but they do need some notice in order to be able to organise their life so that they are not at a dinner party or at a kid's school function or any of those things, to be able to fast.
PN422
Senior Deputy President Hamberger found that a reasonable period of notice was mandatory. His Honour's decision recognised at paragraph 8 that some drivers have also been justifiably angered by having to do the blood test at very short notice and to this end in his recommendation, his Honour stated at paragraph 12 that he believed in most cases the employer is well aware, in advance, of when a medical assessment needs to be conducted.
PN423
Therefore, his Honour recommended that all drivers who need assessments from the end of March 2005 be advised eight weeks in advance when their medical assessment is due. They should also be advised at that time that they must have their blood test done no more than four weeks prior to the assessment. His Honour said that if this notice was not given, the employee was entitled to an additional $65 payment above, effectively, the four hour payment.
PN424
Drivers who were due for a medical assessment before March 2005 were to be given at least four week's notice and if they did not get that notice they would also get the $65 additional payment and the RTBU believes that the situation that led his Honour to this outcome for Pacific National workers is the same as it is for TransAdelaide workers, because they are shift workers and their hours of work vary day to day. Their eating habits are not routine, and they may require some sort of prior notice, or a significant amount in order to organise their eating habits and their life, such that they can fast for what is a reasonable period of time in order to attend their health assessment.
PN425
Although TransAdelaide claims that workers are being given one month's notice, TransAdelaide does not agree that his notice should be mandatory, but rather only given wherever possible. As I have already noted, evidence provided in the letter by Mr Rogers and other anecdotal evidence from RTBU members confirms that there are cases where this notice has not been provided and we would argue that, along with his Honour's decision, that notice should be mandatory. If the Commission please.
PN426
THE COMMISSIONER: The basis for the $65, now, is that compensation?
PN427
MS VAN BARNEVELD: It is almost a sort of penalty on Pacific National.
PN428
THE COMMISSIONER: Yes, well, is it compensation or is it a penalty or what? Is there anything you can refer to there which indicates what the nature of that is?
PN429
MS VAN BARNEVELD: Well, I think it was to encourage Pacific National to give adequate advice and also to compensate drivers who were not given adequate advice.
PN430
THE COMMISSIONER: You see, if I am a shift worker and I am told, look, sorry, we would normally give you a month, but I can only give you seven days, I mean, my big problem with that, my problem with the shortage of notice is going to be my eating patterns and whatever and I have to fast beforehand and so on, right, that is going to be my main problem.
PN431
MS VAN BARNEVELD: I would say it is one of your problems, but the other problem will be that with a week's notice, they may well have other things planned that make fasting quite difficult for the time that they have been required to do so by TransAdelaide. So, if it is - you know, if they are going to - they do not necessarily have a weekend like you and I have, so they may have functions during the week, which means that if they are going out to dinner with friends on a Wednesday night and have to have their medical, they would have to stop eating at a certain time.
PN432
THE COMMISSIONER: Okay. So the worst case scenario is, I might have to change some social arrangements?
PN433
MS VAN BARNEVELD: It could be children's functions. I mean, we have had people who have had to change family things, who have had weddings on certain days where they have had to just not eat or those sorts of things. So, if they do not get adequate notice, it means that they have to forego things and his Honour realised that firstly, the employer was well aware, as TransAdelaide is, when people's medical assessment is going to expire and believe that it was not a particular burden on the employer to give the employee adequate notice.
PN434
THE COMMISSIONER: Okay. But why $65, why not $60 or $70?
PN435
MS VAN BARNEVELD: That was just what he decided?
PN436
THE COMMISSIONER: What is the magic in the $65?
PN437
MS VAN BARNEVELD: That was just what he decided?
PN438
THE COMMISSIONER: But I see some - - -
PN439
MS VAN BARNEVELD: The union did not make an argument claiming anything in relation to this, and this is what came down in the recommendation. We argued, well and truly, that they were not getting notice. As I said, at Pacific National, there were some absolutely shocking cases of a day's notice being given to people and this is what his Honour deemed to be an appropriate resolution to that issue.
PN440
THE COMMISSIONER: And there is nothing in his recommendations or in anything you know of to indicate, well, what is the basis?
PN441
MS VAN BARNEVELD: Except that the employer is well aware, in advance, when a medical assessment needs to be conducted and also, in all the debate that went on that day, that it is a massive inconvenience for workers to be able to fast at short notice.
PN442
THE COMMISSIONER: He says in TA11, this is his recommendation of the 15th, he talks there about - 15 December, paragraph 9, he says -
PN443
which is broadly equivalent to 2 hour's pay.
PN444
MS VAN BARNEVELD: No. This is - yes it is. But, in this instance he is actually talking about the $65 allowance which was unilaterally
imposed by Pacific National for workers doing the blood test in their own time and then to that he adds two hours to make it equivalent
to the four hour that was being paid
by - - -
PN445
THE COMMISSIONER: Yes. But, is there meant to be some connection between that and this notice bit?
PN446
MS VAN BARNEVELD: I did not think so and there certainly was never any mention made of a connection. It may well just have been the figure that was in his mind at the time. I do not know.
PN447
THE COMMISSIONER: All right. Now, I do appreciate that is another issue, but I saw his reasoning there as to why the $65 in that instance and I wondered if that is somehow or other applicable to this?
PN448
MS VAN BARNEVELD: Well, it may well be, but there was nothing raised in the discussions.
PN449
THE COMMISSIONER: Yes. All right. Nothing further on that?
PN450
MS VAN BARNEVELD: No, Commissioner, thank you.
PN451
THE COMMISSIONER: All right. We will hear what Mr Welsby has got to say.
PN452
MR WELSBY: Just a couple of things, Commissioner, that I wanted to address. One relates to U7 and the notion of the worker receiving adequate notice and to my knowledge, and again, I have said before, I am not an expert in the whole national standard, but I am not aware of any definition of what that adequate notice means, and therefore you could take it which ever way you want to take it I guess. And, on that basis I guess, is where we come to the one month, as we believe that that is adequate notice to be providing to employees.
PN453
The reason for putting wherever possible in there is that it is certainly our intention to give that month's notice. However, there may well be circumstances where we would want to reserve the right to provide less if those circumstances dictate that there should be less and maybe I am on the wrong wave length in terms of what the union are coming from, but I would have thought that once the one month's notice is given, if a change is made within that period, for example, we provide a driver with a one month notification and then for circumstances that were not foreseen the driver goes on leave for a week, in the week that the medical was due to be undertaken, do we need to give the person another month's notice when they come back, in terms of attending a medical.
PN454
Or, if we know in advance that the person is going to take that leave, if we know in advance of it actually being taken, if that then means that we put the medical out another week and that only gives them three weeks' notice, I am not sure why that is deemed as inadequate notice.
PN455
I think the eating habits argument was a bit of a spurious argument, I would have thought. I mean, you need a month's notification to change your eating habits to be able to comply with a 12 hour fasting period that is a one off fasting period? I could accept the argument if you had to fast for the month, or you had to fast every second day for the month, but to have to have a month's notice to change your eating habits to fast for 12 hours seems a bit funny to me and the scenario that you painted about seven days' notice, I think you are probably right.
PN456
I think seven days' notice is inadequate and it certainly would not be TransAdelaide's intention to provide notice as tight as that, but I think if you are going to be held hard and fast to a month, to then say in a 30 day month we have only given the person 29 days' notification, I think is a bit tough to take. We have acknowledged that we have had some issues in the past and the one that was provided as an exhibit in relation to Mr Rogers, it was a mistake.
PN457
It should not have happened, but it did happen and we would acknowledge that. However, I will go on in terms of that and say that Mr Rogers did accept and did not raise any argument about complying at the time. We are trying to work out ways and means in which we can provide notice greater than a month. However, we do not want to be held to anything over and above that month because we believe that is adequate, and most people would accept that that is a reasonable period to provide people. I notice in the decision of Senior Deputy President Hamberger when they are taking about the $65 payment, I think the $65 payment appears to me to come from the fact that the company is already paying them a $65 allowance, so I think he has just hit on that $65 in making his decision later. But, I note that he says - - -
PN458
THE COMMISSIONER: It does seem to me to be more in the nature of a penalty than compensation. I mean, he does not use those terms, but, I mean, if there was some compensation, you would expect there to be some rhyme or reason to it.
PN459
MS VAN BARNEVELD: I think in the transcript, though, it is clear that there were debates around the inconvenience that posed and that, yes, it does appear as a penalty, but it is also to compensate them for the inconvenience, so I think it is both.
PN460
MR WELSBY: I also note from point 8 of that decision that Senior Deputy President Hamberger notes that some drivers have also been justifiably angered by having to do the test at very short notice and I think they are the key words, at very short notice and I would probably suggest that the seven days or less that you are talking about may well be what the Senior Deputy President is talking about in terms of very short notice. I do not think he would be distinguishing between 30 days and 29 days as being very short notice.
PN461
THE COMMISSIONER: Or the 24 hours' notice, that I think Ms Van Barneveld - in one case that someone was - 24 hours I think you said.
PN462
MS VAN BARNEVELD: Yes, there was one case where they were booked, but I think generally it was most of the Pacific National examples, from memory, that we provided the Commission, were of two weeks, two or three weeks and less.
PN463
MR WELSBY: I think my final point there would be holding the organisation to providing a minimum of one month's notice could impose on the organisation an example of where accreditation could be dependent on the completion of the medical and whilst it would be our intention that we do not get ourselves into that situation, there are circumstances which could dictate that and if we were unable to provide the one month's notice and someone's accreditation to operate as a driver was on the line, then I would suggest that less than one month's notice ought to be able to be used.
PN464
MS VAN BARNEVELD: Can I just add something there, Commissioner? I think - I mean, from being there in all the discussions in the Pacific National case, I think it was quite clear in the discussions that his Honour believed quite strongly that rail organisations know full well when an accreditation is about to expire. I mean, there should be a database of when workers' medicals are about to expire and on that basis he truly believed and that was why he extended it to eight weeks' notice, that there was absolutely no reason a rail organisation could not provide one month's notice or, after March, eight weeks. So, I would agree wholeheartedly with that. There is no way that a rail organisation cannot possibly have prior warning of when people are about to expire. Thank you.
PN465
THE COMMISSIONER: Anything further, Mr Welsby?
PN466
MR WELSBY: No, thank you.
PN467
THE COMMISSIONER: Now, I take it then that that is about as far as we can go today?
PN468
MS VAN BARNEVELD: Commissioner, I have one more thing and I am not sure whether Mr Welsby will want to go through this one today, but there is a bit of confusion between the union and TransAdelaide, or actually, from the union's perspective, various documentation from TransAdelaide about whether drug testing forms part of the medical and I am happy to take you through the documentation very quickly.
PN469
THE COMMISSIONER: Right, and then Mr Welsby can either respond today or tomorrow, I do not mind, but if you want to talk about the drug testing, that is fine. Go ahead, yes.
PN470
MS VAN BARNEVELD: Yes. Commissioner, our concern arose when we were looking through some documentation from TransAdelaide. At RTBU9 in the original documents that we provided you is a copy and Mr Welsby has already actually submitted this document as well, a copy of a document from TransAdelaide entitled New Health Assessment Standards for Rail Safety Workers - Keeping You on Track with your Health and Career. I am not sure what number TransAdelaide put on it?
PN471
MR WELSBY: TA3, I believe it was.
PN472
THE COMMISSIONER: TA3 is it? Right.
PN473
MS VAN BARNEVELD: On page 4, the bottom left hand column of page 4, if you have a look under the heading, will you have to have a blood test? The third paragraph, the last little paragraph there says:
PN474
All medical tests will entail standard drug testing consistent with the existing drug testing procedure and practice in TransAdelaide.
PN475
And this is talking about high - well high level safety critical workers, because they are the only ones who have a blood test. The health standard from my reading clearly states that drug and alcohol testing is not part of the medical, for existing workers, unless specific circumstances arise. At RTBU10 in the original documents is another excerpt from the National Standard for Health Assessment.
PN476
THE COMMISSIONER: Yes.
PN477
MS VAN BARNEVELD: On page 15 of that document, under 7.5, titled drug and alcohol screening, that section talks about the fact that there are other ways organisations can drug and alcohol test their workforce and it says that at pre-placement or change-of-risk category, organisations could include a drug screen in those circumstances. The majority of TransAdelaide workers would not fall obviously under those and they would be subject only to periodic health assessments and in the second last paragraph, it says:
PN478
Periodic health assessments generally do not include a drug screen.
PN479
The next sentence:
PN480
However, assessment for drug or alcohol dependence is an aspect of the safety critical worker periodic health assessment.
PN481
That is just a questionnaire which is filled in and the worker takes it along to the doctor, so we would argue that that indicates that drug testing is not supposed to be part of a periodic health assessment. Attached to RTBU - sorry, do we need to mark RTBU?
THE COMMISSIONER: Yes, we will.
EXHIBIT #U8 EXTRACT FROM THE NATIONAL STANDARD ASSESSMENT OF RAIL SAFETY WORKERS, VOLUME 1, PAGES 2, 15 AND 19.
PN483
MS VAN BARNEVELD: Thank you, Commissioner.
PN484
THE COMMISSIONER: This will all make sense once we get them in their proper plastic sleeves in the thing here. It sounds like it is a mess at the moment, but it will make sense to me at the end of the day, I can assure you. All right.
PN485
MS VAN BARNEVELD: Thank you. Just to confuse you even further, at RTBU11 was a copy from Transport South Australia, the rail regulator, in response to a query from the union about drug and alcohol screening as part of a periodic medical assessment and that letter confirms the union's position that drug and alcohol screening should not be, and is not, part of an assessment.
PN486
THE COMMISSIONER: So this is the letter, is it, from Mr Henniker?
PN487
MS VAN BARNEVELD: Yes, Commissioner.
THE COMMISSIONER: So we are looking here at RTBU11 which is a letter from Transport SA, Mr Henniker to Ms Van Barneveld of the union
dated
4 February 2005.
EXHIBIT #U9 LETTER FROM TRANSPORT SA, MR HENNIKER TO MS VAN BARNEVELD DATED 04/02/2005
PN489
MS VAN BARNEVELD: Thank you. I should have actually brought a copy of the email to which the letter was responding, but I think if I hand up this other letter from Alex Claassens, who is divisional secretary of the Lokay Division in New South Wales, that clarifies the reason why drug and alcohol testing is not part of the standard.
PN490
THE COMMISSIONER: So this letter you handed up is unrelated to the previous one, U9, but it is related to the issue.
MS VAN BARNEVELD: Yes, Commissioner.
EXHIBIT #U10 MEMORANDUM OR LETTER DATED 08/02/ 2005 FROM MR ALEX CLAASSENS, DIVISIONAL SECRETARY OF THE UNION
PN492
MS VAN BARNEVELD: Alex sat on the NTC group that developed the standard and I just approached both him and the South Australian regulator to write an explanation. The South Australian regulator, unfortunately, almost responded without including detail to my email as to the reasoning behind it. They just specifically state that it does not include a drug screen and I just think Mr Claassens explains the reasoning behind it.
PN493
THE COMMISSIONER: Right. So Mr Claassens' letter here, U10 and the previous letter, U9, are basically responding to the same question.
PN494
MS VAN BARNEVELD: Effectively, although Mr Claassens includes a few other issues in his letter as well.
PN495
THE COMMISSIONER: Okay. Mr Welsby.
PN496
MR WELSBY: Commissioner, I just raise an objection to the tabling of that document. I mean, it is not relating to any specific item, it is not addressed to anyone and I also raise the question of what qualifications provides Mr Claassens to give a statement of this nature, not having read the statement, I must admit - I need to read it to decide whether I totally object to it or not, but I just question the validity of the letter in terms of its acceptance.
PN497
MS VAN BARNEVELD: I can clarify, Commissioner, if you would like.
PN498
THE COMMISSIONER: Yes.
PN499
MS VAN BARNEVELD: I can get Mr Claassens to write one addressed to the Commission if that would satisfy the first query and the second one is TransAdelaide at TA1 has tendered a list of participants in the NTC drafting group and you will not that Mr Claassens was one of those participants and, if you read Transport SA's letter, from Derek Henniker, who is writing on behalf of the actual rail regulator, in conjunction with Mr Claassens' letter, it is quite clear the position in relation to drug testing as part of a periodic health assessment.
PN500
THE COMMISSIONER: Well, I think in any event it does purport - I know it is a sort of - I understand what Mr Welsby is getting at here, but what I would say is that it purports to be, it is signed by Mr Claassens and it purports to be his understanding of certain things and, again, I suppose really it amounts to evidence from the bar table, I suppose. It is part of the union's submission. As with a lot of these documents that are handed up today, letters and whatever, they perhaps speak for themselves, but they are more evidence from the bar table than anything else, I suppose, and just a part of the union's submission. I mean, I treat it with caution, Mr Welsby.
PN501
MR WELSBY: I think as long as it is taken in the context that it is a private individual expressing an opinion, rather than an authoritative statement.
PN502
THE COMMISSIONER: Yes. I will note that caution and treat it with the same amount of caution in that sense. I think we did mark it as U10.
PN503
MS VAN BARNEVELD: Yes. I do not think I need to read through those documents unless the Commission requires.
PN504
THE COMMISSIONER: No, I will look at them in due course.
PN505
MS VAN BARNEVELD: Commissioner, the only other thing is that, regardless of those letters, TransAdelaide has agreed that drug testing is not to form part of the health assessment in a letter from Roy Arnold to Ray Hancox, which states:
PN506
Consistent with the health and fitness policy, a new procedure has been drafted which provides additional guarantees and entitlements, namely, (1) the blood test will be used for the health assessment only (not used for random drug screening or DNA testing).
PN507
And I am happy to hand up - actually, I handed up a copy of the letter in the original documentation and it was marked RTBU12.
PN508
THE COMMISSIONER: So that is the letter from Mr Arnold to Mr Hancox, 30 August 2004 and the bit you quoted from was?
PN509
MS VAN BARNEVELD: I think it is on the second page. I have not highlighted this one, sorry, Commissioner. It is right up the top of the second page, under point one:
PN510
The blood test will be used for the health assessment only, not for random drug screening or DNA testing.
PN511
And that is consistent with the health and fitness policy.
PN512
THE COMMISSIONER: Yes.
PN513
MS VAN BARNEVELD: So given that the document numbered TA3 contradicts the content of the letter from Mr Arnold, the RTBU simply seeks clarification of TransAdelaide's position in relation to drug and alcohol testing as part of the health assessment and would like to note before the Commission that not being able to drug test as part of a periodic health assessment is no impediment to TransAdelaide in terms of drug and alcohol testing generally, because they have a requirement to test under the Rail Safety Act, anyway.
PN514
It is just that it is not supposed to be part of a periodic health assessment because the point of the health assessment was for a worker to reveal as much information about their health as they possibly could and if a worker believes that that information is seeking drug and alcohol - is purely drug and alcohol testing by another name, they are not going to fully trust the doctor and confide other health complaints.
PN515
I mean, their health assessment is to look at other health complaints and TransAdelaide can drug test basically whenever they want under the Rail Safety Act, anyway, so that is why it is designed to be completely separate and I think that the letter from Roy Arnold acknowledges that. Thank you, Commissioner.
THE COMMISSIONER: Okay.
EXHIBIT #U11 LETTER FROM MR ARNOLD TO MR HANCOX DATED 30/08/2004
PN517
MS VAN BARNEVELD: Commissioner, that was all I had for today. Thank you.
PN518
THE COMMISSIONER: Mr Welsby, do you want to make any comment at this stage, or leave it until later?
PN519
MR WELSBY: I do want to make one comment. I do not intend to respond in detail, because I would like to take the opportunity to adjourn and do that. One thing I would just ask is the purpose of U10, document U10, in relation to this matter. I do not think that has been clarified for me as to what the relevance of this document is in relation to the drugs screen.
PN520
THE COMMISSIONER: I think - my understanding of it is, as Ms Van Barneveld is saying, U10 really confirms U9, the letter from Transport SA.
PN521
MS VAN BARNEVELD: Yes. I think it just provides, Commissioner, a little bit more information. There is one particular paragraph which I think is pertinent to the discussion at this stage. I think there is a lot of stuff up the front which probably is not necessary, but on the second page, the third paragraph from the bottom, Mr Claassens talks about the fact that the stake holders all felt that if drug testing was carried out above the medical assessment, any trust that was being established between the medical professional and the employee would be lost.
PN522
THE COMMISSIONER: Right.
PN523
MS VAN BARNEVELD: So I think that - I mean, I have already said that, anyway, and my email which was sent to Transport SA seeking clarification also contained that and I have spoken to Jan Powning from the Department of Infrastructure in Victoria, who has also confirmed that that was the reason the drug testing was not included.
PN524
THE COMMISSIONER: Look, and that is my understanding of it. As I said earlier, it is part of the union's submission. In effect, what U10 is I think, Mr Welsby, it is something of a statement, if you like, from Mr Claassens, and it purports to be the sort of evidence he would give if he were called here today to give evidence and you would be able to cross-examination him on that.
PN525
Now, if you call for him to be cross-examined, well, he would have to be. In other words, I am accepting it at the moment, purely on face value, that that is in fact his view, but it really has no more force with me than just evidence from the Bar Table. This is the union's submission, this is what Mr Claassens from the union would say if he were here giving evidence. Now, if you say it is a load of codswallop, I do not accept any of that, then the union would have to prove it.
PN526
MR WELSBY: I am happy with that explanation. I do not envisage calling Mr Claassens to cross-examine him.
PN527
THE COMMISSIONER: No, but again, I just accept it more than anything else as just as part of the union's submission and part of their explanation. Can I just say, before we finish, there are a couple of things. So, where this leads us is, on this particular issue, we have got you responding tomorrow, Mr Welsby, on this final issue about the drug testing, we will call it the drug testing issue, so that will, in effect, be the kick off point for tomorrow, then, following that, there is some clarification on issue 3. Issue 2 has been fixed, hasn't it? Issue 3, there is some clarification that may be fixed.
PN528
MR WELSBY: Correct.
PN529
THE COMMISSIONER: Then, there is your response, Mr Welsby, on what I will call this new issue about the notice, adequate notice for health testing in 30 days. Is that right?
PN530
MR WELSBY: I think I have given you a response to that. I do not think I have anything more to add. Were you not taking note?
PN531
THE COMMISSIONER: I have got too many notes, that is my trouble. What else is there? There is your response on the drug testing, there is clarification on issue 3. What else?
PN532
MS VAN BARNEVELD: That is all, I think.
PN533
MR WELSBY: That is it as far as I am concerned. We have agreed that that issue about whether the two tests can be done on the same day really needs a medical opinion rather than the Commission.
PN534
THE COMMISSIONER: Yes, that was the one I was thinking of, sorry. Now, before we conclude, then, there are just two things I would like to do. If we go to the document of agreed facts that you both supplied to me dated 1 February, and there was a covering note there from Mr Welsby 1 February, there was the jointly signed two page, one and a half page letter, and then there were a number of letters attached to that and whatever, right? What about we just simply call that the - I will call that the statement of agreed facts - that whole document we will simply call the statement of agreed facts.
PN535
MS VAN BARNEVELD: Commissioner, we have to actually object to this because we did not know that, until we received a copy subsequently, of what was sent to the Commission, what was being attached to this letter and we may have some concerns because we have not read through. Now, if they are just simply letters, then that it fine.
PN536
THE COMMISSIONER: They look to be simply letters, the attachments, although one is a corporate procedure, a draft corporate procedure, 7 July.
PN537
MS VAN BARNEVELD: I think some of these letters are actually ones from the unions.
PN538
THE COMMISSIONER: And some of them may already be in as part of the exhibits U or TA.
PN539
MS VAN BARNEVELD: Yes, I think it might be okay, Commissioner.
PN540
THE COMMISSIONER: Look, then what I will do is this. I will simply mark not as an exhibit or anything, the two pages up front that purport to be the agreed facts, right. The jointly signed Welsby Hancox letter of two pages, that is simply the statement of agreed facts - that is what we will call it. In regard to the various attachments thereto, some of those may have already been picked up in the exhibits U1 to 11 and the exhibits TA1 to whatever that we have got.
PN541
If any have not been picked up, could we just clarify that tomorrow, and if any need to be formally marked, we will mark them tomorrow. But, at this stage, I am just going on the statement of agreed facts, those two pages. The others, we will pick them up, and I do not want any of those to fall through the net tomorrow. I mean, it does sound here at the moment as though we are getting very confused with a lot of the documents, but as I say, it is actually - it sounds more confusing than it is and I think I have got them fairly well marshalled in front of me at the moment.
PN542
MR WELSBY: We might impose on you to do that for us.
PN543
THE COMMISSIONER: You might indeed, but tomorrow. I would just ask the parties to go through those attachments to the agreed facts, see if there is anything that is not sort of formally before me in any of the exhibit format at the moment, and we will clarify that in the morning. Now, the other thing that it has occurred to me might be a useful thing to do here - often, at the conclusion of an arbitration, normally when a decision is handed down, the Commission may ask for draft orders and we are nowhere near the stage of draft orders at this stage, but what might be useful is that if both parties provided a set of what I would call draft outcomes, all right, draft outcomes rather than draft orders. So, given everything that we have had here at the moment, and this does not have to be provided necessarily be close of the argument tomorrow, but as soon as possible, hopefully this week, if each party could just provide me with a simple page of what you, as the party, would like to see as the outcome of this arbitration.
PN544
Now, that might be in the form of some simple words. I do not anticipate it be any more than a one page - all right - just a one page, a draft outcomes. It is the equivalent to a sort of draft orders statement, what the union would like to see and what TransAdelaide would like to see as the outcome of this arbitration. That, I think, would help me. It would get a bit of discipline back on the process as well Is that all right? You understand?
PN545
MS VAN BARNEVELD: Yes, thank you.
PN546
THE COMMISSIONER: Now, we should not be very long tomorrow, but can I just indicate that I have got a 9 o'clock Full Commission matter which should be relatively - it is a costs matter - should be relatively straight forward. Now, we are scheduled, I think, to commence at 10 o'clock. Can I say then, it will not be before 10 o'clock. I cannot anticipate that Full Commission matter would go any more than - anywhere past 10, but it will not be before 10, and it might be, again, the sort of flexible time that we seem to have had today. It has all been very flexible right through, but if that is okay with the parties, we will adjourn on that basis, and pick it up then.
<ADJOURNED UNTIL WEDNESDAY 9 FEBRUARY 2005 [4.38PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #TA8 EXTRACT FROM THE GENERAL INSTRUCTION AND ADDENDA TO THE WORKING TIMETABLE, PAGE 19, DATED 09/06/1991 PN58
EXHIBIT #U2 EXTRACT FROM NATIONAL STANDARD HEALTH ASSESSMENT RAIL SAFETY WORKERS JUNE 2004 PN70
EXHIBIT #U3 LETTER FROM TRANSADELAIDE TO UNION DATED09/06/2004 PN72
EXHIBIT #U4 EXCERPT FROM THE STANDARDS AUSTRALIA RISK MANAGEMENT STANDARD AS4360 PN78
EXHIBIT #U5 EXTRACT FROM NATIONAL STANDARD HEALTH ASSESSMENT FOR RAIL SAFETY WORKERS PN112
EXHIBIT #TA9 DOCUMENT HEADED AVERAGE TIMES FOR MEDICAL APPOINTMENTS PN180
EXHIBIT #TA10 DIRECTIONS ISSUED BY SDP HAMBERGER ON 11/01/2005 PN203
MFI #TA11 RECOMMENDATION OF SENIOR DEPUTY PRESIDENT HAMBERGER DATED 15/12/2004 IN RELATION TO PACIFIC NATIONAL AND THE AUSTRALIAN
RAIL, TRAM AND BUS INDUSTRY UNION PN214
EXHIBIT #U6 COPY OF LETTER FROM MR ROGERS TO MR WODELL DATED 01/02/2005 PN341
EXHIBIT #U7 EXTRACT FROM PAGE 26, VOLUME 1 OF THE NATIONAL STANDARD FOR HEALTH ASSESSMENT OF RAIL SAFETY WORKERS. PN419
EXHIBIT #U8 EXTRACT FROM THE NATIONAL STANDARD ASSESSMENT OF RAIL SAFETY WORKERS, VOLUME 1, PAGES 2, 15 AND 19. PN482
EXHIBIT #U9 LETTER FROM TRANSPORT SA, MR HENNIKER TO MS VAN BARNEVELD DATED 04/02/2005 PN488
EXHIBIT #U10 MEMORANDUM OR LETTER DATED 08/02/ 2005 FROM MR ALEX CLAASSENS, DIVISIONAL SECRETARY OF THE UNION PN491
EXHIBIT #U11 LETTER FROM MR ARNOLD TO MR HANCOX DATED 30/08/2004 PN516
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