TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 25218-2

COMMISSIONER LARKIN

AM2010/5

s.158 - Application to vary or revoke a modern award

Application by Dalmeida
(AM2010/5)
Passenger Vehicle Transportation Award 2010

(ODN AM2008/51)
[MA000063 Print PR988774]]




Sydney

3.07PM, MONDAY, 22 MARCH 2010

Continued from 03/02/2010

PN128

THE COMMISSIONER: Yes, could I take appearances please.

PN129

MR I MACDONALD: If it pleases the Tribunal, MacDonald I, for the Bus Industry Confederation.

PN130

THE COMMISSIONER: Yes, thank you, Mr MacDonald.

PN131

MR O FAGIR: If it pleases the Tribunal, Fagir, initial O for the Transport Workers Union.

PN132

THE COMMISSIONER: Yes, thank you, Mr Fagir. Now do we have Mr D’Almeida?

PN133

MR D'ALMEIDA: I’m on telephone.

PN134

THE COMMISSIONER: Yes, thank you for that. We don’t have any appearance from the Australian Federation of Employees and Industries, they did appear on the last occasion. I think the parties before me are aware that on the last occasion I had the Brisbane Mini Bus Charter Organisation’s application before me, 3 February. And also would be aware of the written submissions lodged by the AFBI in relation to the application to vary the Passenger Vehicle Transportation Award (2010) a modern award, that an issue arose as into the provisions of the PVT modern award in relation to broken shifts and how that particular provision impacted upon clause 10.5(d) of the PVT award which was subject to the application to vary.

PN135

Now on that occasion on my understanding the parties seemed to be of the view, or it was persons seemed to be of the view that there may have been an ambiguity in the award. On my understanding an application was to be lodged in regards to an ambiguity or uncertainty. And therefore that question would be out there for all interested persons to make submissions. We waited for a while and I had my associate a couple of times contact the federation to see if an application would be filed. We have correspondence dated 15 March from Mr Storey and I presume that would have been available to all persons that are before me, that they decided on reflection not to seek an application – not to make an application varying the award in the manner that was discussed in the submissions and also on transcript.

PN136

Now I still had the Brisbane Mini Bus Charter of Organisations application to vary and of course the submissions that were attached to that application and therefore I determined that I would call the matter that I did have on this morning and I called it on for mention. The reason I called it on for mention and not hearing was to determine the view of the – any interested persons. I don’t think anything has been posted on this particular site, on our web-site. But – and Mr D’Almeida, you did speak to my associate approximately 10 minutes before I came on the Bench as in querying whether – what this actual listing was all about and what have you.

PN137

MR D'ALMEIDA: Yes.

PN138

THE COMMISSIONER: Yes. And that’s why you're not on video link for us to see you but we’ve organised and of course you're on the telephone at your place of business, which is fine. I directed my associate to ensure – it is your application or your organisation’s application, it’s for you whether you press your application or you withdraw your application, it’s not for me to tell you that you are to press it or withdraw it. But I had a concern when my associate advised me what had been discussed and my concern was that the AFEI may advise you in any manner that organisation chooses to advise you. But I wanted, as I don’t think you're a legally qualified person and I don’t know how much experience you have in industrial relations and awards and agreements and what have you, but I instructed my associate to make it perfectly plain to you that the views or the opinions that are being expressed to you in relation to the provisions of the PVT award is that organisation’s views and opinions.

PN139

The particular provisions that have been under discussion in relation to this matter have not been determined by a court nor has submissions been put to a member of Fair Work Australia for Fair Work Australia to determine whether there is an ambiguity or uncertainty and how that ambiguity and uncertainty if it does exist should be remedied. I had a concern that you might go about your business and – without an actual determination.

PN140

In relation to your application which I have read, as have other interested persons, I don’t know whether I have an opposition to what you seek to do in varying clause 10.5(d) of the PVT Award (2010). So I sought to call it on for mention to ascertain whether I did have any opposition to the application that is still before me and has not necessarily been formally withdrawn. Do you understand my logic for maintaining my listing this afternoon?

PN141

MR D'ALMEIDA: I certainly do, Commissioner.

PN142

THE COMMISSIONER: Yes. So I gather you still seek that I have your application before me for determination?

MR D'ALMEIDA: Well it’s interesting that what transpired from the last meeting through to now hasn’t determined the ambiguity in relation to the use of the word ‘shift’, ‘broken shift’ and ‘engagement’. Because from the – my previous understanding of the award that operated in Queensland the use of the word broken shift hadn't previously applied, although it appeared that it might have in New South Wales and that that is how it happened to be in the award because of what happened in New South Wales.

PN143

So when we read that the award, there was no mention of the word broken shift in that section that you’ve referred to and it did appear as a definition only. And so we took that as to be a shift meaning a shift in the morning and a shift in the afternoon where there would be a minimum of three hours per shift. But having been enlightened to the fact that the broken shift means a shift that can be separated by a period of time, meaning that the morning and afternoon could still count as one shift and then would be paid as a minimum of three hours, basically satisfied our requirements which was that we weren't going to be paying three hours in the morning and three hours in the afternoon for something that would cost a lot less currently.

PN144

THE COMMISSIONER: Yes, Mr D’Almeida, that interpretation may not be correct. That interpretation may be correct but that interpretation may not be correct. Let’s not necessarily muddy the waters unless someone decides to put another argument to me. What your – your application does not concern the definition of the broken shift. Your application concerns a submission to Fair Work Australia to vary clause 10.5(d) to include – and I don’t necessarily have a draft determination from you – but from my reading of your application your application is to vary that particular provision of the PVT Award (2010) due to your particular circumstances that you set out in your submissions to include words which I would envisage would say ‘At the end of to and from school’ and ‘a casual employee solely engaged for the purpose of transportation of people with a disability to learning and leisure centres and workshops’ and then ‘the provision to continue’. ‘Is to be paid a minimum payment of two hours per each engagement’.

PN145

That I envisage was, on my understanding, was your application.

PN146

MR D'ALMEIDA: That is correct.

PN147

THE COMMISSIONER: All right. Now my question to you apart from everything else that we’ve had before us for – since I heard the original programming and mention I think in February – unless someone puts it to me or puts another argument to me, that’s not what I've called on this morning. What I’ve called on this afternoon is your actual application and what I’ve read out to you, does that encapsulate what your application to Fair Work Australia involves?

MR D'ALMEIDA: That is correct. It was based on that we were happy to continue the arrangements that we had previously operated here and that is a two hour minimum engagement. And the word shift, forgetting the word shift, we were – in fact in the tale that I submitted with the submission, pretty much showed that we were allocating two hours per shift whether it took one hour to do or not. So we were happy to still apply the same principles but it appears that the current award now says that that can be – whereas one of the – it’s number 3 in my table, where it only takes an hour in the morning and any hour in the afternoon, under the modern award we would be paying three hours under the award.

PN148

What we’re applying is in fact two hours minimum per engagement in the morning and in the afternoon.

PN149

THE COMMISSIONER: So you seek to vary- - -

PN150

MR D'ALMEIDA: Yes, I’m not necessarily now changing that to change the minimum of three hours to a minimum of two hours each shift, because my interpretation of it was that taking into account what I said before that I believed it to be three hours per engagement. That I am sort of satisfied of the fact that the minimum of three hours applies there and that we therefore can still pay a minimum of two hours per shift and not the three hours which we believed it originally might have been. I don’t know if that – so I don’t want to make this a request to change the award from a minimum of three hours to a minimum of four hours.

PN151

THE COMMISSIONER: No. Mr D’Almeida, the long and the short of this is that under clause 10.5(d): ‘An employee engaged in the transportation of school children can have a minimum payment of two hours for each engagement’. And your application seeks to have that provision applied to your business where you have casual employees solely engaged for the transportation of people with a disability.

PN152

MR D'ALMEIDA: That is correct.

PN153

THE COMMISSIONER: That's correct. It’s not more complicated than that?

PN154

MR D'ALMEIDA: No, it’s not except that – Commissioner, when I submitted this it was on the basis that I believed we were having to pay three hours per engagement.

PN155

THE COMMISSIONER: Well you may have. You may have. You don’t know that. You see, this is what I’m saying to you, the matter hasn’t been determined. You're operating on advice, that advice may be wrong, that advice may be right. I really don’t know because I haven't heard argument and I haven't seen any determination from a court. So let’s just get down to the bare nitty gritty of what you seek to do. And you seek to have your organisation for your casual employees that transport – solely transport people with disabilities to be treated the same way that a casual employee engaged in the transportation of school children are treated under the PVT Award. True?

PN156

MR D'ALMEIDA: That is what the applicant is.

THE COMMISSIONER: Terrific, thank you. Now Mr MacDonald, do you have an opposition to my application? And then I will tell you why I ask you and then I ask Mr Fagir the same question. Does your organisation have an opposition to the application I have before me to vary 10.5(d) to include the words that I just outlined?

MR MACDONALD: It wouldn't have Commissioner.

PN157

THE COMMISSIONER: Mr Fagir, does the Transport Workers Union have an opposition to the application as I have just outlined?

PN158

MR FAGIR: Yes.

PN159

THE COMMISSIONER: Okay then. Can you – nothing – no submissions have been posted. Can you outline to me what your opposition may be in a nutshell because it may involve more detailed submissions in writing, I don’t know.

MR FAGIR: In a nutshell only, Commissioner, we don’t think there’s anything on the face of this application that would justify reducing the minimum length of shift and the minimum, it’s a necessary corollary, the minimum payment per shift for employees covered by this award.

THE COMMISSIONER: Well what we’re talking about is an organisation that puts an argument that they are in the same boat so to speak, or bus for want of a better word, that employers of casual employees transporting school children to and from school. That’s the application that I have. The application doesn’t seek to reduce a casual employee is to be paid a minimum payment of three hours pay for each shift. What the submission and the application before me is to afford to an organisation that has contracts that transport people with a disability in the morning and the afternoon to and from learning centres, leisure centres and workshops. I don’t think the application seeks to vary the first part of paragraph (d) in the particular subclause to remove the three hours, it’s simply putting it in where school buses are concerned as well. I just wanted to clarify, I don’t think it’s varying the actual three hours for a casual.

PN160

MR FAGIR: Well I think and I want to emphasise that I didn't come here prepared to fully argue this application but- - -

PN161

THE COMMISSIONER: No, and I didn't expect you to, I just wanted to know whether I had an argument because if I didn't have an opposition then I would progress the file by posting something on the web and providing people with an opportunity to comment on that. But I wanted to know if I had opposition.

PN162

MR FAGIR: I think two matters come to mind. First is that the material that we’ve got before us simply isn't adequate to make out that there is in fact a need for this variation.

PN163

THE COMMISSIONER: In regards to the Transportation Disability Services?

PN164

MR FAGIR: Yes. That’s the first issue. The second issue is that although it sounds like Mr D’Almeida’s organisation provides a valuable service, as a matter of principle if every organisation who said look, things would be easier for us if the award provided for this less beneficial provision, we’d have no award at all. I mean we might all accept that Mr D’Almeida's job would be easier if this variation were made but that’s simply not enough. This award and every award is about striking a balance between the employer’s needs and the employee’s and we say that prima facie that the award that was produced by the Full Bench after deliberations reflects that balance.

PN165

THE COMMISSIONER: I think though the only submissions in relation to this particular provision was put by the employer organisation in relation to school bus services. There was no, on my understanding, there was no submissions put in regards to disability services and I don’t know of any other organisation or section of an organisation that – where casuals transport for an hour or two hours in the morning or the afternoon. But then again there may be, there may be.

PN166

MR FAGIR: I’m sure there are, Commissioner. I just think of the local RSL which operates a courtesy bus between 10 pm and midnight, something along those lines and again that’s a valuable service and it might keep people off the road and- - -

PN167

THE COMMISSIONER: I think that’s normally a barman that does that, Mr Fagir, but I don’t know, I won’t comment. I don’t necessarily frequent many RSLs. But no, all I wanted to know. So you’ll be posting submissions opposing the application then?

MR FAGIR: Well Commissioner, I guess we weren't entirely clear on the status of the applicant, but if we’re now forging ahead then yes, we will be making submissions that are more expansive and possibly more coherent than what I've just said.

THE COMMISSIONER: Yes. All right. Now I really don’t want to dally. I still have this application and the application is concentrating on the provision that I talked about. If I don’t have any other application this is the application I deal with and it’s to do with paragraph (d) subclause 10.5. And I think Mr D’Almeida’s acknowledged the words I read out were the words that he would seek to have included in that particular provision. So I don’t want to get off on some hobby horse of any other issues. This is the particular application that I’m talking about.

PN168

All right, Mr Fagir, when do you think those submissions could be posted on the web-site?

MR FAGIR: I think we could do that within two weeks, Commissioner.

PN169

THE COMMISSIONER: 5 April?

MR FAGIR: Yes Commissioner.

PN170

THE COMMISSIONER: It won’t be 5 April. 6 April?

PN171

MR FAGIR: Yes Commissioner, I take it that's just after the- - -

PN172

THE COMMISSIONER: Easter break.

PN173

MR FAGIR: - - -Easter break.

THE COMMISSIONER: You’re a fast writer and a good thinker, I’m sure you can get it in by 6 April. I have faith in you.

PN174

MR FAGIR: We’re in the Commission’s hands.

THE COMMISSIONER: Thank you. Mr MacDonald, I would envisage that BIC would be seeking to put submissions in relation to what the TWU puts on?

MR MACDONALD: They would at least want to reserve the right to do that, Commissioner. So perhaps a couple of weeks after that would be suitable.

THE COMMISSIONER: What about Friday the 16^th?

MR MACDONALD: That will be fine.

THE COMMISSIONER: Good. Mr D’Almeida.

MR D'ALMEIDA: Yes Commissioner.

PN175

THE COMMISSIONER: You’ve heard the proceedings. Mr Fagir, the chief for the TWU seeks to put submissions in opposition. That material will be posted by Tuesday 6 April. And then BIC will be posting their view if they form a view or so choose by 16 April. You will want to consider what the TWU puts up and any submissions in reply from you if convenient I would seek that they be put in by no later than 21 April?

PN176

MR D'ALMEIDA: That would allow me to see both submissions there, yes.

THE COMMISSIONER: Yes. Is the 21^st acceptable for you? I take it – I can put pressure on the two gentleman that are sitting in front of me because I know they're experienced advocates and quite capable of complying with a tight timeframe. But I’m conscious of the fact you're running a business and I want to ensure that the 21^st is not an onerous requirement on you.

PN177

MR D'ALMEIDA: No, the 21^st would be fine.

THE COMMISSIONER: All right then. After I view that material then if I feel the need then I will relist it. If I don’t feel the need then I will address those submissions in a written decision.

PN178

MR D'ALMEIDA: Thank you, Commissioner.

THE COMMISSIONER: Do I have any other comments or views in relation to what I've just outlined to the persons before me?

PN179

MR FAGIR: No Commissioner.

PN180

MR D'ALMEIDA: None from me, Commissioner.

PN181

THE COMMISSIONER: All right then. A transcript of course will be available to you as normal and I’ll await that material and we’ll see how we go. I thank you for your attendance and we stand adjourned.

PN182

<ADJOURNED INDEFINITELY [3.31PM]