TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 23477-2

COMMISSIONER LARKIN

AM2010/5

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

Application by Mr D'Almeida
(AM2010/5)
Passenger Vehicle Transportation Award 2010

(ODN AM2008/51)
[MA000063 Print PR988774]




Sydney

2.37PM, WEDNESDAY, 3 FEBRUARY 2010

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN SYDNEY

PN1

THE COMMISSIONER: Could I take appearances, please. Mr D'Almeida, you're the applicant in the matter before me this afternoon?

PN2

MR D'ALMEIDA: That is correct. Although I understand that - not understand - but I did send in an email to retract the application based on some information that was provided to me which probably meant that we might be covered under the modern award. However, there may be some dispute about the interpretation, so possibly that could be clarified today for us.

PN3

THE COMMISSIONER: I wouldn't hold out my hopes of it being clarified before you today but you received that advice from the Federation, on my understanding, and you contacted my associate and put that to her. The concern I had, I chose not to cancel the mention and programing this morning because I thought the issue required something to be put on. Furthermore, other interested parties or persons concerned with this particular modern award may or may not have a different view to what the advice was that was given to you and I thought it far more prudent to list the matter and hear from interested parties in relation to what was being sought, and what you sent was the advice.

PN4

Your original application was to vary a particular clause due to the circumstances that you outlined in your application to Fair Work Australia. You're in Brisbane on a video-link.

PN5

MR D'ALMEIDA: That's correct.

PN6

THE COMMISSIONER: Other appearances, please.

PN7

MR STORY: If the commission pleases, Story, initial D, for the Australian Federation of Employers and Industries.

PN8

THE COMMISSIONER: Thank you, Mr Story.

PN9

MR MacDONALD: If the commission pleases, MacDonald, I, from the Bus Industry Confederation.

PN10

THE COMMISSIONER: Thank you, Mr MacDonald.

PN11

MR FAGIR: If the tribunal pleases, Fagir, initial O, for the TWU.

PN12

THE COMMISSIONER: Thank you, Mr Fagir. The matter has been, as I said, actually called on for programing the mention but I do note that, Mr Story, you've posted submissions on the award modernisation site.

PN13

MR STORY: Yes, commissioner.

PN14

THE COMMISSIONER: Mr MacDonald, Mr Fagir, I presume you've sighted those submissions.

PN15

MR MacDONALD: Yes, I have, commissioner.

PN16

THE COMMISSIONER: Mr D'Almeida, have you sighted those submissions at all or have you received them?

PN17

MR D'ALMEIDA: Yes, I received a copy of the submission from the Federation, your Honour.

PN18

THE COMMISSIONER: All right then. So, Mr Story, do you seek to add anything to those submissions at all?

PN19

MR STORY: Commissioner, I generally rely on our written submissions here. I suppose the main thrust behind that submission was that it was our interpretation that the Passenger Vehicle Transportation Award allowed for broken shifts which would be a total shift possibly split into two parts with the minimum engagement of three hours, which meant that Mr D'Almeida's proposed variation wouldn't have been necessary. That's based on the wording of the award where it refers to the three-hour minimum engagement on a shift basis. Our interpretation being that a broken shift is still a total shift. Also, with other modern awards such as, say, the Children's Services Award where - we believe that where there's an intention that there be a minimum engagement for parts of the shift, the award will use terms such as "successive hours" or "consecutive hours".

PN20

If the commission does agree with our interpretation here of the award, we would seek that in the interests of removing any ambiguity under section 160 of the Fair Work Act that the award possibly be varied to provide some clarity there. Thank you.

PN21

THE COMMISSIONER: Part of those submissions then, Mr Story, is that the Federation is seeking that the award then be varied to remove what you say is an ambiguity and uncertainty - - -

PN22

MR STORY: That's correct.

PN23

THE COMMISSIONER: - - - and that variation is at clause 10.5, the casual provisions in the award.

PN24

MR STORY: Yes, that's correct.

PN25

THE COMMISSIONER: Have you proposed - yes, at point 7 of your submission.

PN26

MR STORY: Yes, there's a proposed wording for that possible variation to the award.

PN27

THE COMMISSIONER: Thank you, Mr Story.

PN28

MR STORY: Thank you, commissioner.

PN29

THE COMMISSIONER: Mr MacDonald.

PN30

MR MacDONALD: Thank you, commissioner. The Bus Industry Confederation represents private bus operators throughout Australia. They were a significant contributor to the development of the Passenger Vehicle Transportation Award and made a number of submissions in relation to the original draft provision relating to casuals where it was proposed that there would be a minimum engagement of three hours for casuals.

PN31

The Bus Industry Confederation refer the commission to practices where school bus operators, particularly in rural areas, have broken shifts. The school bus driver in the bush will drive the children to school sometimes just an hour in the morning, go to their other job or just go home, and then drive the children back from school to home in the evening. As a consequence, in most of the states there was a minimum engagement of two hours, an hour in the morning and an hour in the afternoon.

PN32

The impact of a definition that didn't recognise the broken shift would mean that in New South Wales, for instance, where the rates of pay are significantly higher than the PVTA, the payment to a school bus driver would double. The school bus contracts and the funding that the government would then have to meet to make those school bus operators viable would be twice the SSTS payments, which are the School Student Transport Scheme payments. So our submissions outlined that to the Australian Industrial Relations Commission and in their decision of 4 September 2009, at paragraph 229, the commission did refer to an amendment to the original draft where they indicated:

PN33

In the case of casual employees, we have retained a three-hour minimum for each shift but where the transportation of school children is undertaken, we have provided a two-hourly minimum for each engagement.

PN34

It's a slightly different definition: what is an engagement; what is a shift? It has, as Mr Story has indicated - and obviously which Mr D'Almeida has brought before the commission or the tribunal - it has created some uncertainty. The Bus Industry Confederation would appreciate the matter being cleared up and we support the AFEI submission which would be to correctly define the engagement as the period of time in which the school casual or casual works for the day. So the definition that's been drafted by the AFEI is a satisfactory definition because it indicates that the engagement is engagement for the day and would take into account the broken shift.

PN35

I should say, in the definitions within the Passenger Vehicle Transportation Act, paragraph 3.1, there is a definition of a broken shift. It would be our submission to you that that was deliberately put in there by the commission to properly define what a shift is. We would submit that the definition of a shift or an engagement includes a broken shift. That is a variation from the previous federal award where the practice generally was to recognise broken shifts but there was no definition of it so the commission, in their wisdom, actually put that definition in there.

PN36

Our submission to you, commissioner, is that there is a need to better define the word "engagement" and to incorporate that into the work that the driver does for the day, and that would include their shift which is a broken shift or a straight shift.

PN37

THE COMMISSIONER: I think the definition of broken shift could have been adopted from one of the proposed drafts of the parties, if memory serves me correctly.

PN38

MR MacDONALD: It was based on a draft that we submitted which is a definition out of the New South Wales Bus Award NAPSA, commissioner. In the New South Wales Bus Award NAPSA there are all sorts of provisions that relate to broken shifts, minimum engagements for broken shifts, and a whole range of matters pertaining to broken shifts.

PN39

THE COMMISSIONER: Yes.

PN40

MR MacDONALD: Thank you, commissioner.

PN41

THE COMMISSIONER: Thank you. Mr Fagir?

PN42

MR FAGIR: Commissioner, I think your apprehension around this issue is well-founded. There's at least an arguable case - and we say the correct case - that on the face of the award there's a distinction between provisions applying to casual employees compared to full-time or permanent part-time employees. It's clear that in relation to the permanent categories the clauses refer to "shift/day engaged". We would say that contemplates broken shifts.

PN43

The clauses relating to casuals are different. As Mr MacDonald highlighted, the full bench turned its collective mind to this issue and after I think her Honour Harrison SDP initially indicated some reluctance to introduce this foreign concept into a federal award, I think in particular because of the issue of school buses in remote areas, the full bench dealt with that issue by reducing the minimum engagement to two hours for school bus drivers.

PN44

So we say that it is not only arguable but it's correct to say that in fact the broken shift provisions which - there could even be an argument about this - which may apply to permanent employees, don't apply to casuals. That's not just a random difference. There are good, practical reasons why that would be the case; because casuals don't have the guarantees of minimum hours and so on that permanent employees do have.

PN45

So the short version is that we agree it might be a little bit dangerous for Mr D'Almeida to proceed on his present understanding. Perhaps this isn't the time but I will say something about the Federation and its AFEI submission.

PN46

THE COMMISSIONER: Just before you do, Mr Fagir, the matter has only been called on for mention and programing, gentlemen, and to ascertain the feelings of interested persons to this award. So don't for a moment feel that anything you put in these proceedings is restricting to add to those submissions. I think what we're doing at the moment is giving Fair Work Australia an outline of what the position is and, in the circumstances, I will probably report to the full bench in relation to the issue and we'll see where we go to from there.

PN47

So don't feel that you're restricted at all in putting your case on the issue, considering that it is a contested issue and not an agreed position between the parties. My apologies, Mr Fagir, please continue.

PN48

MR FAGIR: Thanks, commissioner. All I wanted to say about the submission at this stage is that the application that's before the tribunal asks for something very specific, which is that a variation be made in respect to casual drivers who are performing a particular type of work; that is, transporting of people with a disability to and from learning and leisure centres or workshops. The submission seems to be moving the commission or the tribunal to somewhere completely different, which is making a very significant change to the conditions of engagement of all casual employees.

PN49

The concepts of ambit and those types of things probably don't strictly apply here but if the Federation seeks the kind of result that's outlined in their submission, then they should make an application to that effect. That can be fully argued and argued perhaps without specific reference to the needs of this one particular company that has made the application.

PN50

Certainly in relation to the ambiguity issue, if there is to be again some fundamental change, it shouldn't be something that's tacked onto this quite narrow application. It should be put squarely and fully argued as its own issue, and that will be responded to by us as appropriate.

PN51

Finally, I will say one thing and the commission or the parties that are here can give this whatever weight they like: the concept of broken shifts was completely foreign certainly to our members in Victoria. I can say that when we discussed the modern award with our members there was one issue that, above all others, caused consternation and caused negative reactions, and it was this issue of the broken shifts. So obviously there's been a broken shifts provision in New South Wales but that's in the context of significantly higher minimum wages.

PN52

I'm repeating the submission, the first submission we made in these proceedings, which is that if we're not going to adopt the New South Wales' wage rates, then we have to be very, very cautious about adopting any of the flexibilities that are included in there because that will disturb the balance of the instrument. So we would repeat that submission again. Commissioner, I think that's all I would like to say at this stage.

PN53

THE COMMISSIONER: Yes, I hear what you're putting; in other words, we have a stand-alone application which now has brought a discussion about an ambiguity, and I think what the TWU is saying is, "Well, look, yes, there is an arguable case of an ambiguity but that should be heard as a stand-alone issue upon application by an interested party, employer or what have you, but the application that I have from Brisbane Mini Bus Charter should be determined as a stand-alone matter.

PN54

MR FAGIR: Yes.

PN55

THE COMMISSIONER: In relation to that stand-alone matter, it seeks to vary the particular clause, and let us go to that application. I don't think we actually have a draft clause, Mr D'Almeida. Did you propose to - - -

PN56

MR D'ALMEIDA: No, commissioner, my submission was based on the information provided to me from my contacts with their workplaces and that - there was no guidance to me in relation to providing an alternate clause for the paragraph 10.5. What I was requesting in my submission was that:

PN57

there be a variation to the award, and that the above award allow bus drivers who transport people with a disability -

PN58

I used the word "solely" because the word "solely" was used in paragraph 10.5(d) of the award -

PN59

people with a disability to and from learning and leisure centres or workshops -

PN60

and the terminology there - different states may have different terminology -

PN61

be paid a minimum of two hours for each shift.

PN62

I was, at that time, assuming that a shift was the morning and a shift was the afternoon. So in addition to that, the clarification of the ambiguity is probably the first thing that we would like to see before we would know what we were going to do next.

PN63

THE COMMISSIONER: Firstly, there's no criticism of your application by any means at all. I simply asked was there a draft clause, or have I seen one? The next point is that paragraph (d) subclause 10.5 actually does refer to payment of two hours for each engagement.

PN64

MR D'ALMEIDA: That's for a school driver.

PN65

THE COMMISSIONER: That's right, and this is what we were talking about. I think what your application really in a sense means is that - and we will step back to the last point you raised - but what your application really means is that the second sentence in paragraph (d) subclause 10.5 you would seek to have:

PN66

A casual employee solely engaged for the purpose of transportation of school children to or from school, or solely for the transport of people with a disability to or from learning and leisure centres or workshops -

PN67

and then it continues -

PN68

to be paid a minimum payment -

PN69

and you say "two hours per shift". It says:

PN70

two hours per each engagement.

PN71

Your next point is, what you're saying - and correct me if I'm wrong - given what has been put to Fair Work Australia in regards to these provisions, you would seek that your application be stood over until that particular issue was determined and then you would revisit your application.

PN72

MR D'ALMEIDA: I think so, commissioner, because it appears from the discussion so far that the definition of "broken shift" and its application and the use of the word "engagement" and the use of the word "shift" - whilst the definition is provided for broken shift, there was no definition for engagement or for shift as it would apply to the broken shift.

PN73

MR MacDONALD: Commissioner, may I make a point here?

PN74

THE COMMISSIONER: Yes, Mr MacDonald.

PN75

MR MacDONALD: Commissioner, what Mr D'Almeida is saying is that on an interpretation of the passage of the Passenger Vehicle Transportation Award where he works a driver two hours a day currently, he would have to pay three hours for that driver's minimum engagement, which is 50 per cent more than he's paying previously, and because he relies on government funding, he would have to go to the government to seek an extra 50 per cent increase. On an interpretation that my friend Mr Fagir suggested in relation to school drivers, if you included Mr D'Almeida's circumstance in there, he would have to pay four hours and he would have to pay double because his drivers work broken shifts, morning/afternoon, or they break up during the day.

PN76

If there was a minimum two hours' engagement and that was deemed to be each of those two engagements for the day, he would have to pay four hours. So he would be actually significantly worse off because he would have to pay double the amount, double the rates that he is paying now, whereas under a determination he's paying only 50 per cent more now. That's the anomaly that's probably created by the uncertainty here.

PN77

I just reiterate in relation to the school operations, and that is that almost 100 per cent of school buses in country areas throughout the country have that broken shift. It is just simply the way that it's run. Even in a larger country town there are not significant route services that would allow drivers to work significantly more hours other than their morning and afternoon shifts that they do when they take the children to and from school. Even in the cosmopolitan or metropolitan areas there is a number of casual employees in any one particular yard.

PN78

So the concept of broken shift, whether it was defined in the federal award or as defined in New South Wales, which is the largest user of these shifts, the broken shift existed in reality and that's where the commission adopted our submission in relation to it. So that's just sort of a background on, I guess, the uncertainty of it, and perhaps there is a need to have it clarified.

PN79

THE COMMISSIONER: I was simply asking Mr D'Almeida what his position was with his application. So that's fine. So is that what you're seeking? You don't - - -

PN80

MR D'ALMEIDA: Commissioner, what we're seeking is to have it stood by or stood down for the moment, until the clarification of how the application of broken shift applies in relation to a shift. Just looking at the words "for each engagement", I mean I can work that out as to what it means but just as a clarification against "engagement", against "shift", and against "broken shift".

PN81

Just in our submission, Mr MacDonald, we don't receive any government funding at all. The funding we receive comes from the Endeavour Foundation.

PN82

We pay currently two hours for the morning shift and two hours for the afternoon shift as under the state award. The way I read paragraph 10.5(d) initially was that we were going to be paying three hours in the morning and three hours in the afternoon, which was a total of six hours. That's where we have a problem.

PN83

In light of that broken shift - and that's where I need the clarification - is it does apply and it does work in a way that would then mean we would still pay two hours for the morning and two hours for the afternoon, and we would be satisfied with that if the use of the broken shift definition applied to shift. That's what I need clarification on and that's what there seems to be dispute about.

PN84

THE COMMISSIONER: So you seek that your application for the moment be stood over until the other issue is determined.

PN85

MR D'ALMEIDA: Yes.

PN86

THE COMMISSIONER: It remains, Mr Story, are we to receive an application in relation to ambiguity/uncertainty?

PN87

MR STORY: Yes. Look, we certainly can make an application, commissioner.

PN88

THE COMMISSIONER: I think it's tidier, don't you?

PN89

MR STORY: Sure. I mean, we weren't trying to circumvent the process at all.

PN90

THE COMMISSIONER: No.

PN91

MR STORY: It's just that it came up in the process of talking to Mr D'Almeida.

PN92

THE COMMISSIONER: No, I didn't think for one moment that you were.

PN93

MR STORY: Sure.

PN94

THE COMMISSIONER: No, I fully understand that. All right then. I don't think anyone wants to comment on that. I think that's what has come out of the submissions in any event. I think we will go along in the normal process, that the application is made, it's posted on the web site and then submissions are put up addressing the application and any argument put for the various respective positions in relation to the provision. Now, do we have a time frame on this? I wasn't (indistinct) full bench, gentlemen. I did read every single decision but I presume there would be a requirement for a time frame or is it just get it in as quick as you can and you've got a cut-off date?

PN95

MR MacDONALD: There is a need for clarity, given that schools are back and operators in New South Wales are paying two hours' minimum engagement for broken shifts.

PN96

THE COMMISSIONER: What do you want to - - -

PN97

MR MacDONALD: I'm not trying to speed up any time frame, commissioner, but there is a need to have it resolved and I think everyone would be happy to have it settled one way or the other.

PN98

THE COMMISSIONER: I don't think we're going to resolve it by 5 o'clock, Wednesday, 3 February, Mr MacDonald.

PN99

MR MacDONALD: No, definitely not.

PN100

THE COMMISSIONER: We work quick in this tribunal but I don't know that we work that quick. So what time frame do the parties envisage? Mr Story, you are to put your application on and your argument. Mr MacDonald, that may be a joint application. I really don't know how you want to handle it. Mr Fagir, you would consider that material and then put any competing position up in relation to that. So what time frame do we envisage, gentlemen?

PN101

MR STORY: I would say at least a fortnight, commissioner.

PN102

THE COMMISSIONER: For?

PN103

MR STORY: For the original application and supporting documentation to be filed.

PN104

MR MacDONALD: It may be easier, commissioner, if AFEI lodges the application and then it allows ourselves and the TWU to formulate either a joint reply or a reply in support because I'm not sure that any of us are that far away from an agreement in relation to this. It's just a matter of trying to understand what the implications of an agreement are.

PN105

THE COMMISSIONER: But that then would have to be considered by Fair Work Australia in any event.

PN106

MR MacDONALD: Yes, I understand.

PN107

THE COMMISSIONER: I'm flexible in regards to the timing. I don't think the issues should run into the never-never, and I think it's too important especially - well, not only to Mr D'Almeida but to a number of other operators that we haven't heard from in relation to this issue. So it's not an issue that I think should run off for months and months. It's not an issue that's going to be decided by the end of the week, unfortunately. I can't envisage that. I'm in your hands, gentlemen. What time frame do you suggest for this material to be put on for Fair Work Australia to consider what the next stage is?

PN108

MR MacDONALD: I'm thinking a 14-day application period, then 14 days for us to respond, and whether the TWU wants to respond in that 14 days or 14 days after that.

PN109

THE COMMISSIONER: Normal procedure, I think, is that a notice goes up on the web site to say anybody interested must file material by a set date. If that is still the process - it was - then I will select a date but that date will be selected having regard to what you tell me are your time requirements. So the application, material in support, what you're saying is close of business on the 17th.

PN110

MR STORY: The 17th? Yes, that will be fine.

PN111

THE COMMISSIONER: And these are outside limits, gentlemen. If you can do it the following day, well and good, but these are the outside limits. You say, Mr MacDonald, you need another 14 days after that?

PN112

MR MacDONALD: Yes, commissioner.

PN113

THE COMMISSIONER: Which brings us up to 3 March.

PN114

MR MacDONALD: That's suitable, commissioner.

PN115

THE COMMISSIONER: Mr Fagir, you've been very quite. Do you have a view on these dates that we're discussing and what's the TWU's position?

PN116

MR FAGIR: Commissioner, it's a little bit difficult to make any promises in the absence of the application and without consideration of its scope. I wouldn't like to be held to this but I have visions of what in another jurisdiction might be described as a cross-claim, because as I've said, this is a very, very important issue for many of our members, and in particular outside of New South Wales. So I just think the matter has some potential to go a few different ways but ultimately whatever time limits, commissioner, you attach to this, we will comply with.

PN117

THE COMMISSIONER: These aren't going to be directions issued in relation to filing and serving, they're just dates for my benefit to set a cut-off date because there may be other interested persons out there that seek to comment as well. So I need to give everybody a time limit. Whether you gentlemen file or don't file, that's up to you, but there will be a date. So we're up to 3 March. Is the cut-off date 3 March or 10 March? I think it should be 10 March. Is 10 March a date too far into the future? I don't feel so. Does anybody have a different view on that?

PN118

MR MacDONALD: It would be suitable to the Bus Industry Confederation, commissioner.

PN119

THE COMMISSIONER: Silence is golden.

PN120

MR STORY: That's right.

PN121

THE COMMISSIONER: All right then. Is there anything else that anyone seeks to advise me on or are we all happy and what have you? All right then. So for the purposes of the application before me, application AM2010/5, that application will be stood over and there will be another application lodged by AFEI within a two-week period. If that can be brought down and not two weeks, I think that might be of assistance but I leave that to you. It's not for me to tell you when you put an application in or you don't. Once that has arrived, it will be allocated a new file and I will speak to the full bench in regards to what I see, after discussions with the parties, that the cut-off for submissions date should be on that application. I would recommend to them that it's 10 March but that will be up to the powers that be.

PN122

MR MacDONALD: Commissioner, will that notification be on the web site or will it come to us direct?

PN123

THE COMMISSIONER: Which one?

PN124

MR MacDONALD: The notification of any other dates.

PN125

THE COMMISSIONER: The notification of the application when AFEI lodge their application?

PN126

MR MacDONALD: Yes.

PN127

THE COMMISSIONER: It will be the normal process. I don't get too much into the admin side. I'm going to adjourn, gentlemen, on that basis, that the application I have is stood over. Ms Howe, my associate, will speak to you in regards to the why and the wherefores of the administrative side of this process. So if there's nothing further, I thank you for your attendance and I'm adjourned. Thank you.

<ADJOURNED INDEFINITELY [3.15PM]