PN3071

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, Mr Baroni.

PN3072

MR BARONI: Thank you, your Honours and Commissioner. Can I just firstly start by handing up an amended draft determination? That's the determination sought by my clients. I'll refer to this in due course, but just so that the Bench is aware of the amendments that we've made, they are in relation to clause 5.

PN3073

SENIOR DEPUTY PRESIDENT HAMBERGER: Does Mr Ryan have that draft determination?

PN3074

MR BARONI: No, unfortunately, we thought he was going to be here.

PN3075

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay, okay.

PN3076

MR BARONI: But the effect of it is a concession, so there shouldn't be any concern about it in that sense. From the union's perspective, it would be a better position than what we've put. Whether they agree with it or not is a different - - -

PN3077

SENIOR DEPUTY PRESIDENT HAMBERGER: Well, as long as you explain what the difference is, yes.

PN3078

MR BARONI: Yes, yes. I'll just briefly explain that now. But, in essence, the changes are to clause 5, particularly clause 5.1, where it alters the casual loading to bring it into line with what would occur with the long distance award and I'll take the Bench to that in due course. Then it amends what would otherwise be the exclusion of the higher duties clause that it wouldn't apply in circumstances where the employee was doing incidental work, that is the carriage of goods as contemplated by clause 4 for the majority of the day so they get the higher rate. The original schedule had in it that simply that clause would not apply in any circumstances. So we've amended that and, again, I'll take the Bench through the draft determination in due course in a bit more detail.

PN3079

Can I just first start, your Honours and Commissioner, by saying this. The clients I act for, and I think this is an important point to make, is that they're not in breach of any industrial law. They've built a model based on the fact that they have not been covered by an award. Now, they can't be criticised for that and why I raise it at the outset is because I think it's an important consideration that the Bench should take into account in determining how it should now be covered by the award. So we've got to the point that they are covered by the Award, as I said on the last occasion.

PN3080

The question that now arises for the Bench's consideration is what provisions of the Award should be amended if any and we say that leads into the question of the rates as well. My friend will disagree with that, but I've made our position fairly clear that we don't see anything that arose from the Full Bench's decision and the invitation which is in paragraph 87 of the Full Bench's decision that it's limited in any way. The exercise today or the last two days, including today, is to determine how the award should apply.

PN3081

The second thing that I think is important to reemphasise is the fact that the award, this award, the Road Transport and Distribution Award, did not cover my clients or anybody in that industry. Mr Gibian will say: "Well, it did, there was a decision in the Federal Circuit Court at that point in time." We say, well, that decision was wrong. It must be wrong because the Federal Court said it was wrong and overturned it. That's the effect of it. So we come here with - and, in my submission, there can be no dispute about the fact that this industry in relation to which my client is operating has never been covered by an award. That's the fact.

PN3082

So the Bench has decided that - and, of course, the legislation provides that that should be so. That it was an anomalous event that such an industry should not be covered and the Bench found that it should be covered. But the fact is that it wasn't covered. It also then follows by definition, if one has regard to the definition in the Road Transport and Distribution Award, at the time prior to the amendment that the TWU sought that it didn't fall within the transport industry because the TWU's application to the Full Bench was to amend that definition so as to include vehicle relocation. That's a fact, so it couldn't have been in the transport industry as far as the award was concerned. It just could not have been because the amendment, as I said, that the TWU sought and was granted was the inclusion of this industry to form part of the definition of the award which defined the transport industry.

PN3083

So, again, following this through as a matter of logic as far as the transport industry was concerned, this industry, the vehicle relocation industry, was not a part of it. As I said, I mean, so much is clear from the application that the TWU made so as to amend that definition because now it reads - or the insertion of a new subclause in (3):

PN3084

The distribution and/or relocation by road of new and used vehicles as described in the classification within this award where the vehicle itself is required to be driven from one location to another for the purposes of delivery and relocation of the vehicle.

PN3085

So, as I said, to reemphasise the point, it follows that this industry was never part of the transport industry. It now is. It's now part of the award.

PN3086

Then that leads to the next issue which needs to be considered and that is the history of the award. The history of the award, whilst on one view it might be said that, well, it's a modern award now and the history falls away. I'm not entirely sure that that is a proper submission to make. We say that it's entirely relevant and it will become clear why that is relevant in due course when I make some submissions about the structure of the relevant classifications which are in the award and I'll come back to that shortly.

PN3087

Whilst I'm on this issue about coverage, can I say both - I'll withdraw that. Artio had asserted that Truck Moves - I'll withdraw that. It had asserted that my clients and anybody in the vehicle relocation industry doing long distance work could avail itself of the provisions of the long distance award in relation to long distance work and your Honours and Commissioner will note that the draft schedule contains a provision therein to deal with long distance work and that is found at clause 6, 7 and 8. So those three clauses in totality deal with long distance work and it's there because we say that there is no mechanism, number 1, by which we can avail ourselves, contrary to the assertions of Artio that we can utilise the long distance provisions of the award.

PN3088

Secondly, and more fundamentally, when one has regard to clause 3 and 4 of the long distance award - and if I may, your Honours and Commissioner, I'll hand up a copy of that. I'm not sure that it needs to be tendered. It's simply a copy of the award.

PN3089

SENIOR DEPUTY PRESIDENT HAMBERGER: Thanks.

PN3090

MR BARONI: If I can take your Honours and Commissioner to page 5 of the award, firstly, that is clause 3.1 which contains various definitions. And if one goes to page 5, around about towards the bottom of the page, it has a definition of 'interstate operations' and your Honours and Commissioner will recall some of the work that Truck Moves does are instate moves of trucks. There's some debate about the percentage, but it really doesn't matter. Some of the work it does is the delivery of trucks interstate. If one looks at that definition, it says as follows: "Interstate operations will be an operation involving a vehicle moving livestock or materials whether in a raw or manufactured state from a principal point of commencement." And then it goes on.

PN3091

The important point in that definition is that there must be the movement of either livestock or materials whether in a raw or manufactured state. So in general parlance, that would mean the movement of goods or freight. As the evidence has clearly shown, this industry, apart from some minor exceptions, does not do that.

PN3092

If then one goes over the page to the next definition, which is 'long distance operation', it's defined as meaning: "Any interstate operation and any return journey where the distance travelled exceeds 500 kilometres and the operation involves a vehicle moving livestock or materials whether in raw or manufactured state." And then it goes on. The same submission is made in relation to that. That is that you have to be carrying goods.

PN3093

Then if I can take your Honours and Commission to clause 4 which is on page 7 and, particularly, clause 4.1, that definition contains in the second line a reference to long distance operations which is a defined term. So it then follows by that analogy, your Honours and Commissioner, that in order to be covered by this award, you need to be carting freight, if I can put it as simply as that.

PN3094

Then I think the last point I want to make about this award, and this is in relation to the submission of Artio, if one then goes to clause 4.2, and Mr Ryan will tell me if I'm wrong, if I've misunderstood his submission, but I think his submission was that one could avail itself of clause 4.2 of this award so as to use the facilities in this award. But clause 4.2 simply doesn't get you there because, as I've said, in order to be covered by the award, you need to be carrying freight. So that's all I need to say about that issue and it simply doesn't follow, and I think we say that the submission of Artio should be rejected because it's just not possible to be covered by the award. I withdraw that. Of course it is possible to be covered by the award, but we are not covered by the award because we don't carry freight. That's all I need to say about that.

PN3095

As I mentioned earlier, obviously, the task for the Bench today is in the context of the modern award review as to determine what provisions of the award should apply, should be amended, including rates and, of course, the Full Bench may be completely against my clients and form the view that no amendments are required and that is open to the Bench. Obviously, that is not our position.

PN3096

But dealing, again, with the submission that, as I understand it, the TWU and Artio have put that the proceedings, as have involved now by way of, for example, the draft order that my clients and the industry seeks is that it's gone too far. That is that these are not proceedings, as I understand the submissions of both Artio and the TWU, they are not proceedings and cannot be proceedings whereby it allows the Commission to look at whether rates should be varied. And Mr Gibian, no doubt, and Artio, will develop that further, but we say that's simply incorrect.

PN3097

Again, referring the Full Bench back to paragraph 87 of its decision, it makes quite plain that it has left open the possibility. In fact, as I said before, it's invited submissions and evidence in relation to this issue and there's nothing of limitation that we can see, and we submit there are not limiting words in that part of the decision which would suggest that the rates are not part of this process.

PN3098

Do your Honours and Commissioner have a copy of the submissions that I have filed?

PN3099

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN3100

MR BARONI: They were filed, I think, on 24 November or thereabouts last year. If I can take your Honours to paragraph 70 of those submissions, there I go into - I make some submissions about the concept of fairness as contemplated by section 134 and one of those provisions in the Act talks about not only the views of the employer, and it talks about many things, 134(1), but one of the important aspect from my client's position and the industry is the views of the employers are quite important in determining what should happen in a review process and 134(1)(f) makes it plain the likely impact of any exercise of modern award powers on a business, including productivity, employment costs and the regulatory burden.

PN3101

Your Honours and Commissioner, I don't intend to read my submission, but I'll do this in relation to paragraph 70 and I invite the Bench to take note of this. As I say this: "Crucially, as already identified, the concept of fairness contemplated in the context of section 134(1) have to be considered from the perspective of both employers and employees. It may easily be accepted that it's not fair for employees in the vehicle relocation industry to receive lesser terms and conditions to those employees in the transport industry. However" - the first point I make there - "it doesn't follow that" - and that's a typographical error. That should say: "That it is fair." "It doesn't follow that it is fair to simplistically seek to shift the entire cost burden from a decision of the Fair Work Commission to expand coverage of the award to employees in the vehicle relocation industry, particularly" - the next point is - "particularly in circumstances of work performed, et cetera, by drivers in that industry is fundamentally and significantly different."

PN3102

So one needs to balance and my submission is that the Full Bench needs to balance how it deals with this in the context of ensuring that generally speaking the modern award objectives are met as contemplated by section 134. But one of those objectives also requires the Full Bench to take into account the impact that any decision the Full Bench may make will have on the employer or employees in that particular industry. This is particularly novel in a sense because we are covering, as I said before, an industry that's never been award covered at all.

PN3103

So this industry, and certainly the clients I represent today, have built their model on the basis of that fact and, again, they can't be criticised for that. They have built their model on provisions which don't require them to be covered by an award and axiomatically there would be no surprised and, again, no criticism could be levelled against the industry that their rates of pay would be somewhat lower and terms and conditions different from those regulated by an award. But, again, that should not be a criticism. It is a factor that that the Full Bench needs to take into account, we concede that.

PN3104

Then that takes me briefly to the evidence of Mr Bradac. Now, I know Mr Gibian will make much of that, particularly the evidence he gave in relation to his confidential statement. But can I say two things about his evidence in general. The first thing is that if I can take the Bench to his statement of 24 November 2016. This is the non-confidential one, your Honours and Commissioner, which is TM8, yes.

PN3105

The evidence that he gave in this statement, as best as I can recall, was not really challenged in the sense that he provided simply a mathematical provision in various parts of that statement which identified in percentage terms and dollar terms the increases between what Truck Moves pays now and what it would have to pay depending on what grade it ended up being covered or relevant under the award. Now, we don't know what the Full Bench is going to say about whether there should be one grade or whether our argument is accepted that it should be a specific new grade, if I can put it that way. We don't know and in some respects that's irrelevant to his evidence.

PN3106

His evidence is that as night follows day, and nobody can quibble with this, that we're paying a lower rate now. Depending on where we end up, we're going to be paying a higher rate then. There can be no dispute about that and, obviously, as a matter of logic, that will have flow-on costs and, for example, at paragraph 11, he sets out - and this wasn't challenged - he sets out the increases with respect to worker's compensation for each grade depending on which grade ultimately one has to pay. He sets out the superannuation increases, payroll increases. Then he sets them out in percentage terms. He sets out the differences which would flow from having to pay overtime, et cetera.

PN3107

Nobody can quibble with that and I don't think Mr Gibian has quibbled with it. What he quibbled with was - and we concede that the calculations were erroneous in his confidential statement - that's what he quibble with because there was errors in the calculation of the spreadsheet. But the reality is that there are increases. Mr Gibian will say that we can't rely on his evidence because it was highly embellished. Well, we don't concede that for one moment. What we do concede is there were errors in his calculation in relation to the confidential evidence he gave and that was in relation to the direct impact on the business.

PN3108

But, as I said, in his further statement he sets out unchallenged - and there is nothing to challenge because just as night follows day, if you increase the rate of labour, your costs must go up and consequentially your on-costs must go up. So there is no dispute about that, in my submission, and that is a valid consideration and, in fact, it was a consideration that the Commission has to take into account in determining what should happen with this industry and where it should be pegged.

PN3109

I readily concede, your Honours and Commissioner, that the Full Bench may form the view that, well, the rate that we seek is inappropriate and it's too low. We say it's not given the factors that I'll come to in a moment about the type of work and the type of industry it actually is. But we concede that your Honours and Commissioner may form a different view about that. I mean, that's open to you and, of course, we would accept that if that's the case. It's also open to your Honours and Commissioner to determine that there should be no specific grade that it's pegged at. So, for example, your Honours might be against in relation to the draft order we want in terms of the rate of pay and your Honour might say: "Well, they should be a grade 2 or 3." Alternatively, your Honours might just throw the whole thing out and determine that you get paid at the relevant grade in relation to the truck you're driving. I'll come back to that why that won't work because that's an important consideration as well.

PN3110

The other important issue about the cost structure is that Mr Whitnall in his statement of 17 March last year, there was a confidential contract which was attached and tendered. Now, I can't find the exhibit number for that contract. For some reason it doesn't appear in the exhibits, but it was a Mercedes Benz contract. Do your Honours and Commissioner have that document?

PN3111

SENIOR DEPUTY PRESIDENT HAMBERGER: Is it the Mercedes Benz?

PN3112

MR BARONI: Yes.

PN3113

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes. I think it was TWU12.

PN3114

MR BARONI: TWU12.

PN3115

SENIOR DEPUTY PRESIDENT HAMBERGER: (Indistinct).

PN3116

MR BARONI: It's not very confidential then.

PN3117

SENIOR DEPUTY PRESIDENT HAMBERGER: Well, no, it is confidential.

PN3118

MR BARONI: Yes, anyway, I'm being facetious, your Honour. This is one of the contracts that Mr Whitnall had referred to in his statement, particularly at paragraph 118 to 123 which is exhibit - which was TM3. And in TM3, commencing around about paragraph 118 which was page, I think, 25 of the statement, he says:

PN3119

I'm also concerned that the RTD Award's wages include compensation for riggers, freight and transport industries that are not in the business of Truck Moves. This will result in drivers being paid more for less work and responsibility. All business modelling and financing of Truck Moves has been based on it being award-free. That's been the consistent position for 25 years. As I've said, Truck Moves has long-term agreements with a number of significant clients. As I explained below, coverage under the RTD Award at this time will place these agreements and the business of Truck Moves at risk.

PN3120

Then he goes on to say: "For example, on June 2016, Truck Moves signed a significant contract with one of its main clients for a three-year term." And he goes on and I don't read the whole thing, but that's the reference to the Mercedes contract.

PN3121

Then if I can take your Honours to that contract. At page 28, your Honours and Commissioner, at schedule 1, one can see there that the commencement date was 6 June 2016. It's an initial period of three years, so it's still in force. It has a further option there that one can see. This, according to the evidence of Mr Whitnall, is a significant contract.

PN3122

Then if I can take your Honours and Commissioner to page 12: "Review of rates and charges." Without necessarily reading all of it, the effect of that clause is that there will be no increases during its term and if there are increases after its term they have to be agreed. But, in any event, they won't exceed the consumer price index. We say this would be a typical contract in the industry for the relocation of vehicles off the wharf which your Honours and Commissioner will recall is a significant part of what my clients do.

PN3123

DEPUTY PRESIDENT SAMS: Is this contract with Mercedes Benz the one that has the longest duration or are there others that go beyond that three years?

PN3124

MR BARONI: I think, to be fair, your Honour, this is the one that has the longest duration.

PN3125

SENIOR DEPUTY PRESIDENT HAMBERGER: So just to be clear, just looking at schedule 1, so that finishes 1 July 2019.

PN3126

MR BARONI: Yes.

PN3127

SENIOR DEPUTY PRESIDENT HAMBERGER: But I think the other party can opt to extend it for another year at the same rates, basically, and it's unilateral, it doesn't have to be by agreement.

PN3128

MR BARONI: That's correct.

PN3129

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN3130

MR BARONI: But the problem - - -

PN3131

SENIOR DEPUTY PRESIDENT HAMBERGER: That's why I say, effectively, it's to 1 July 2020 or potentially.

PN3132

MR BARONI: Yes. So, I mean, obviously, I haven't taken your Honour to that. Well, I haven't made a point about that because, obviously, one must concede that they could decide not to renew the contract if it becomes too expensive.

PN3133

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, but it's up to Mercedes. It's not up to your client.

PN3134

MR BARONI: Yes, that's right.

PN3135

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN3136

MR BARONI: So they're kind of locked in, fortunately or unfortunately, that's not the issue. The issue is that these are the sorts of contracts which float about in this particular industry. Just so that I get this right because there was some debate between myself and Mr Gibian and the Bench about the percentage of work that my client does, I think the evidence clearly establishes that around about 96 per cent or so of the work they do is trade-plated vehicles and of that 96 per cent or so, 25 per cent were long-distance work. So I just wanted to clear that up so that there's no - - -

PN3137

SENIOR DEPUTY PRESIDENT HAMBERGER: Are you going to come back to your proposed clause in this revised draft determination to deal with long distance operations?

PN3138

MR BARONI: Yes, I'm coming back to that.

PN3139

SENIOR DEPUTY PRESIDENT HAMBERGER: Are you going to come back to that?

PN3140

MR BARONI: Actually now I was going to.

PN3141

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay, great. I just want to understand how you've come up with that formula.

PN3142

MR BARONI: Yes.

PN3143

SENIOR DEPUTY PRESIDENT HAMBERGER: Well, no, I won't make any assumptions. I want you to explain it to me.

PN3144

MR BARONI: Excuse me for one second, your Honours. Yes, if I can turn now to that draft schedule, your Honours and Commissioner. I'll take you briefly to it, then talk to that long distance provision. The operational parts of it are really commencing at clause 2 which sets out some definitions about kilometres travelled, long distance trips, et cetera. The long distance trip is generally derived from the long distance award. That is that it's commonly accepted that trips with no fewer than 500 kilometres are typically understood to be long distance trips which would be covered by the long distance provisions of the award.

PN3145

Your Honours may or may not recall that I took you to some definitions in the long distance award which have 200 kilometres. They were really dealing with - that would only apply when you crossed a border. So, for example, from New South Wales to Queensland or Queensland to New South Wales or New South Wales into the ACT. So there's a different structure. So you'd have to cross an interstate border to avail yourselves of the 200 kilometres. But, otherwise, it's generally accepted in the industry that 500 kilometres is the - - -

PN3146

SENIOR DEPUTY PRESIDENT HAMBERGER: 500, okay.

PN3147

MR BARONI: 500, yes, is generally what's considered a long distance trip.

PN3148

SENIOR DEPUTY PRESIDENT HAMBERGER: Sorry, just to be clear, you're not saying this has to be interstate or you are saying this has to be interstate?

PN3149

MR BARONI: No.

PN3150

SENIOR DEPUTY PRESIDENT HAMBERGER: You're saying it doesn't?

PN3151

MR BARONI: It doesn't.

PN3152

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN3153

MR BARONI: It just has to be 500 kilometres which is a better - well, if I can put it this way, is a worse position for my client than, for example, if it was covered by the transport long distance award because it then could avail itself of a shorter distance if it crossed the border. We're not going there, we're just simply articulating the common understanding of what is long distance. So that will capture intrastate, it will capture interstate, but it pegs it at 500 kilometres and no other figure.

PN3154

Then if your Honour picks up the new definition of vehicle relocation and inserts a definition of vehicle relocation employee. Then it goes to the classification structure. Now, Mr Bradac gave some evidence about the 1883. But, in essence, it was simply a figure that, in my submission, my clients in the industry deal with going forward. And, again, I'm not sure that they can be necessarily criticised for picking a figure which is lower than the award. I mean, as I said, the whole industry's model itself are not being covered by the award. And one can readily see from the submissions I made earlier about the evidence that Mr Bradac gave about the increases which would just as a matter of logic follow. So I don't think there's any remarkable about that.

PN3155

Obviously, in relation to that minimum hourly rate, it is slightly higher than the national minimum rate and to that one would add the casual loading of 25 per cent. We have then provided clause 4 which deals with the incidental work which the evidence clearly establishes that some of the employees may do from time to time and that is they may be driving vehicles are loaded and we can't resile from that fact. That is the evidence and nobody has ever shied away from that issue. The fact is that they do from time to time, but it is incidental. So we've said, well, when they do do that, they'll get the applicable rates contained in the provisions of the award and not the rates contained in clause 3 of this draft.

PN3156

The next thing to note is that some qualified exclusions which are picked up in clause 5. So the following clauses won't apply. Can I firstly deal with 12.5(c) of the modern award. Do your Honours have a copy of the modern award?

PN3157

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, thank you.

PN3158

MR BARONI: 12.5(c) is the clause which provides the casual loading to be paid. Now, we have modified that in two respects. The first is that to the extent that a casual loading is to be paid, it will be only 15 per cent worked on weekends and public holidays. Now, the reason for that, your Honours and Commissioner, if I can take the Full Bench back to the long distance award, and if I can take the Full Bench to clause 10.4, your Honours and Commissioner. That sets out casual employment and one will note two things. The first is that 10.4(b) applies a casual loading of 15 per cent to the CPK rate for driving duties. And then one look sat 10.4(c) and it applies 25 per cent for loading and unloading duties. So this award, in fact, makes a distinction between the effort which one - presumably this must be the reason for it - makes a distinction between simply driving the vehicle - I'm talking about casuals - as compared to a casual doing other work, manual work, physical work, loading and unloading. So it makes that distinction and it recognises that driving doesn't need the 25 per cent loading, it only needs the 15 per cent loading.

PN3159

SENIOR DEPUTY PRESIDENT HAMBERGER: But that's in the long distance award.

PN3160

MR BARONI: Correct.

PN3161

SENIOR DEPUTY PRESIDENT HAMBERGER: But in the road transport - - -

PN3162

MR BARONI: Well, there is no long distance provisions in the - - -

PN3163

SENIOR DEPUTY PRESIDENT HAMBERGER: No, no, I didn't think this was restricted. In your clause 5, you're not - this isn't restricted to long distance operations, is it? Or have I misunderstood it?

PN3164

MR BARONI: No, it's not.

PN3165

SENIOR DEPUTY PRESIDENT HAMBERGER: So why would you look at the long distance award?

PN3166

MR BARONI: Because what it does, if you, by analogy, if you - our submission is that we do nothing more than driving and the skills that are required to simply drive a truck from A to B and the ancillary work that an employee would do doing that work is significantly different - this has been our case from the beginning - to one that loads and unloads and drive a fully laden semi-trailer - fully laden rigid. So we say there's a distinction between the task and the skill level and the amount of effort that's required.

PN3167

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay, okay.

PN3168

DEPUTY PRESIDENT SAMS: It sounds like you're cherry-picking.

PN3169

SENIOR DEPUTY PRESIDENT HAMBERGER: Well, yes, it does look like that, I mean, because the Road Transport and Distribution Award, you've got people who are sometimes driving and sometimes loading and unloading. They don't get different rates for when they're loading and unloading, particularly casual loading, they don't get different casual loadings.

PN3170

MR BARONI: No, they don't, and - - -

PN3171

SENIOR DEPUTY PRESIDENT HAMBERGER: You're saying, well, just pick up the casual loading for the driver. I accept that your drivers aren't doing any loading or unloading, but you're going to another award where the rationale is not necessarily all that obvious why there's a different rate.

PN3172

MR BARONI: Well, no, but again, your Honour, I take your point. I may be cherry-picking in a vacuum. But I'm not in a vacuum because what I'm saying is consistent with our theme. Whether you accept it or not, I mean, at the end of the day, it's consistent with our theme. We're saying that it's an easier job.

PN3173

SENIOR DEPUTY PRESIDENT HAMBERGER: That's your rationale, okay.

PN3174

MR BARONI: You've got an award that on one view recognises the fact that you do no more than drive gets a lesser amount. That's the rationale. Now, I can put it no higher than that, but, in effect, that is the basis of why we have chosen that.

PN3175

SENIOR DEPUTY PRESIDENT HAMBERGER: The only thing is that's the casual loading. I'm not actually quite sure why there is a different casual loading. But the casual loading isn't about the work. It's not kind of work-value based. It would make more sense - you know, that might have been a stronger argument if this was about the long distance award. Nevertheless that's not been what we're talking about, but let's say this other award recognised that there was this work value distinction between the work you do when you're driving and the work value you do - the work value of the work you do when you're loading and unloading. But the casual loading, there's no obvious reason why that's a question of work value. I mean, I'm not quite sure why there is and I don't know if Mr Gibian will be able to help me. I don't know why there is that difference.

PN3176

MR GIBIAN: I think Mr Ryan knows more than me probably, but I think it's because the 15 per cent is on the cents per kilometre or the hourly driving method rates in the long distance award which already are loaded up for overtime penalties which casual loading would not be paid on. So it's not a different casual loading.

PN3177

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN3178

MR GIBIAN: The casual loading is adjusted for the fact that there are already overtime components and the like incorporated in the cents per kilometre and the hourly driving rate.

PN3179

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, anyway, I mean - thanks so much, Mr Gibian.

PN3180

MR GIBIAN: So it's not reflective of the different casual loading. As a basic matter, it's reflective of the fact that the rates are calculated in a different ways - - -

PN3181

SENIOR DEPUTY PRESIDENT HAMBERGER: The way they're calculated.

PN3182

MR GIBIAN: - - - because of the very specific features of that award.

PN3183

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, it doesn't really make sense to say that - - -

PN3184

MR GIBIAN: But Mr Ryan can tell me if I'm wrong.

PN3185

SENIOR DEPUTY PRESIDENT HAMBERGER: I mean, I can understand you argument about - well, you didn't put it quite like this, but the implicit argument is that there's a different work value for work involved in driving and work involved in loading and unloading, you know, where there's loading and unloading involved.

PN3186

MR BARONI: That is, in effect, the submission.

PN3187

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, but this seems to be not about that. It would be weird.

PN3188

MR BARONI: If you look at the original one that we filed, in fact, there was no casual loading paid, so we - - -

PN3189

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, yes, it's a concession. I accept it. I accept that it's a concession.

PN3190

MR BARONI: We'll give you 15 per cent.

PN3191

DEPUTY PRESIDENT SAMS: Good to see you moving, Mr Baroni.

PN3192

MR BARONI: So, you know, we're moving and, you know, we should get some brownie points for that and it's very important. But that is the submission and I'm sure my friend, Mr Ryan, will tell us all about the issue with this clause in due course. But can I move on then to - then we have the long distance provisions which my understanding the way they've been calculated are akin to the provisions of the long distance award. The loading is not as high, the multiplier. It's slightly less and I think the reason for that, again, goes back to this issue that we say is relevant for consideration about the tasks that one does again, vis-à-vis, simply driving a truck from A to B to driving a fully loaded truck, loading it, unloading it, et cetera. Because if you take what Mr Gibian says about the loading rate in the driving duties for the long distance awards, that's in effect what it's for.

PN3193

SENIOR DEPUTY PRESIDENT HAMBERGER: But that would be - I mean, this is why I'm a bit confused because I can understand your argument that the rate - the kind of base rate of pay as it were or the classification level, if you like, would vary, you know, because you're saying there's a different work value involved. I didn't say whether I accept that argument or not, but at least it's logical to say that. But I don't really see why you'd be changing the loading. It would be the base. Wouldn't it be the rate that you're then applying the loading to that would be different? I don't see why the loading should be. The loading is not for, kind of, work value if you like. It's about things like - it's to compensate the shift loadings, et cetera.

PN3194

MR BARONI: Well, there's a long history of the long distance award, if I can put it, your Honour, and the loading was a historical thing about a number of different things and one must concede, I suppose, at the end of the day that the loading was in recognition of or in payment of the fact that you'd be driving cents per kilometres at any time of the day and any day of the week. So, I mean - --

PN3195

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, yes, but that's got nothing to do with kind of the work - how hard the job is, if you like.

PN3196

MR BARONI: No, no, but I think you asked me right at the beginning the methodology. That's the methodology.

PN3197

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, but so if it was exactly - you say it's akin to but not quite the same as.

PN3198

MR BARONI: Well, because in - - -

PN3199

SENIOR DEPUTY PRESIDENT HAMBERGER: So if it was the same, what would it look like?

PN3200

MR BARONI: I think the loading would be 1.3, rather than 1.1. 1.2.

PN3201

SENIOR DEPUTY PRESIDENT HAMBERGER: 1.2, okay, okay.

PN3202

MR BARONI: Which when I find it I can point to the provision in the long distance award.

PN3203

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, if you could, yes.

PN3204

MR BARONI: But it is 1.2 if it was the same.

PN3205

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay.

PN3206

MR BARONI: Then can I deal with hours of work and the hours of work provision derives, at least in relation to the span of hours, derives directly from the evidence of Truck Moves in relation to how they operate in terms of the number of hours they work. And unlike the situation now, this would not exclude overtime. Obviously, it modifies the provisions of clause 22.2 and 22.3 in that, firstly, overtime would only be paid after one works 10 hours on any day for local work. And then you would get overtime after you worked 12 hours on any day for long distance trips. After that point, then the normal overtime provisions would apply to the award.

PN3207

SENIOR DEPUTY PRESIDENT HAMBERGER: So what is the logic for that?

PN3208

MR BARONI: It reflects the patterns of work that Truck Moves - certainly, Truck Moves, that's the evidence, and to a lesser extent the evidence of Mr Clayton, I think it was, about the way they operate because, your Honour, it's very important, as I said, from the beginning. This is an organisation that has built its financial model, its structure on something very different than the award.

PN3209

SENIOR DEPUTY PRESIDENT HAMBERGER: Sure.

PN3210

MR BARONI: And, again, I can't emphasise that enough and I completely understand that your Honours and Commissioner may be against me on this. But the fact is that for 25 years they've been doing it a particular way. Now we've arrived at a junction where all of a sudden we're going to have to do it differently. There's no question about that. we accept that. The question is how different and over what period of time can we transition. That's the fundamental issue, but that's the way they work, they generally work. And don't forget the evidence that was provided that all of my client's employees are casual. The majority of them are at the end of their career looking for something as you do. And the patterns of work reflect that. That is, they generally work 10-hour days on local work and 12-hour days on long distance work and then they stop.

PN3211

Part of that reason also, I think, your Honours and Commissioner will recall there was evidence that Mr Whitnall gave not in these proceedings but in the previous proceedings and there were documents in relation to trade plates and the operation of trade plates in Mr Whitnall's statement of 24 March last year and that prohibited driving at night. So there's a mix of reasons why these hours have been picked. But historically, again, the model of the business has been built around these hours and these patterns.

PN3212

Then moving on, once you then accumulate 38 hours in any week, you give them overtime. And, again, these are fundamental shifts which from the current method of paying my clients have adopted historically. So at the moment there'd be no overtime paid. Now the concession is, well, once you work more than these spans in any one day, you get overtime at the normal rates as applicable under the award. If you work more than 38 hours and, yes, it's a Monday to Sunday span, you'd get 38 hours and the span of hours of any one day, I think, reflect what's in the award. From memory, that is 5.30 am to 6.30 pm.

PN3213

My instructing solicitor also asked me to mention, which is true, and, again, it goes back to our fundamental underlying submission that the work these people do is fundamentally easier and less physical than a truck driver would do normally in the transport industry. And if you recall, your Honours and Commissioner, there was evidence given by both Mr Whitnall and Mr Bradac that quite a lot of their time, for example, would be travelling back either in a shuttle or on a plane or on a train. So all of those hours weren't actually working hours. So it's a combination of different factors which historically lead to the selection of those two spans or hours per day which are reflected in the draft.

PN3214

The next clause is clause 25. We've excluded that. They're the start times.

PN3215

SENIOR DEPUTY PRESIDENT HAMBERGER: Why should that be excluded?

PN3216

MR BARONI: Because there are no set patterns. I think the evidence of Mr Whitnall was - and I think this was evidence he gave from a question that was put to Mr Gibian - his evidences was that there was no, sort of, set start times or patterns of work flow. So it wasn't, you know, you'd set a time and everybody starts at 7 am. A lot of this, because they're casual employees, all of them are casuals, so there's different start times throughout the day, there's different work that's available throughout the day. That's the reason. It may certainly be, and I concede this, that if the workforce was permanent, then I'd concede that my clients would have a lesser argument than what it has now.

PN3217

DEPUTY PRESIDENT SAMS: So what sort of notice do they get to start?

PN3218

MR BARONI: The day before, I'm told, your Honour, as I understand it. I'd have to check the evidence. I don't know. I don't want to mislead your Honour.

PN3219

DEPUTY PRESIDENT SAMS: I can't recall.

PN3220

MR BARONI: I can't recall either. Mr Gibian is going to find it, I can assure you. But the day before, but again I think it really flows into this issue that the whole workforce is casual. And while I'm on that point, it also follows that there are the casual conversion provisions in the award. We haven't excluded those, so we accept the fact that at some point in time, this industry will in part or in whole migrate to a permanent workforce. So there are, again, concessions, we say, major concessions, in relation to that.

PN3221

That flows into some of the criticisms, for example, that Mr Gibian had and will have in relation to the evidence of Mr Bradac in terms of his calculations for trips. For example, those long distance trips from Sydney to Brisbane or Melbourne to Brisbane, because some of those trips, for example, if one goes from Sydney to Brisbane and stays there overnight, the next day they come back and I think there was an estimate of three hours incorporated into some of those costings, that's the end of their job. In fact, there is no evidence or there is no guarantee because they're casual that they've got another job.

PN3222

So that's another issue that, you know, looms large for the industry when these people become permanents and whenever this order is effect from, 12 months thereafter, we're facing that problem. Perhaps not in whole, but as night follows day, they'll be people putting their hand up wanting to be permanent.

PN3223

SENIOR DEPUTY PRESIDENT HAMBERGER: Well, only if they fit the definition of regular.

PN3224

MR BARONI: Well, indeed, indeed, your Honour. But whilst we don't - you know, and I think the evidence demonstrates that it's not completely ad hoc, you know, there will be a certain number of these employees throughout the industry which may choose to become permanents and that will be an issue that the industry has to deal with. It's not a trivial issue, but it's one that the industry obviously seems to readily accept because there's no attempt by us to modify that.

PN3225

Then the balance of the schedule deals with the transitional provisions. No doubt my friend to my left will say four years for 54 cents is ridiculous. This Commission has made transitional provisions for lesser amounts, if I recall, historically. But that's our submission in relation to that. And, again, this shouldn't be trivialised because you're going from a - if I can put it this way - a zero base, you know, an industry which has, at least as far as my client is concerned, been around for 25 years. It starts at zero. It's never been regulated in terms of award coverage.

PN3226

You are asking it to make, and it will, and it has to in part or in whole, a quantum leap, and it will have an impact on its cost structure. It just will because if you look at the evidence, my clients have said they don't pay overtime. They don't pay overtime. Now they're going to be paying overtime, not exactly - well, we say the submission is they shouldn't be paying it exactly in terms of the award, but the rates of pay when they hit overtime will be the same. So there is a significant cost impost. It's not just the 54 cents. Assuming your Honours and Commissioner accept that that should be the rate and if you don't accept that that's the rate, well, then the impost is even higher. But put that to one side, the fact that we're now going to be paying overtime is a significant impost. I mean, you can't hide from that and nobody can resile from that fact, it is, and that's a concession that the industry has made. It accepts that it will have to do that.

PN3227

DEPUTY PRESIDENT SAMS: Well, it's not quite zero. We handed our decision on 6 July last year.

PN3228

MR BARONI: Yes, you did, your Honour. I was probably trying to make it as simple as possible, not - - -

PN3229

SENIOR DEPUTY PRESIDENT HAMBERGER: For example, you were paying the minimum (indistinct) wage. It's not quite zero.

PN3230

MR BARONI: Well, again, I think it was maybe just perhaps an incorrect analogy on my part.

PN3231

SENIOR DEPUTY PRESIDENT HAMBERGER: (Indistinct).

PN3232

MR BARONI: But I think, your Honours and Commissioner know what I'm getting at.

PN3233

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, I understand what you're saying. It's a significant change.

PN3234

MR BARONI: Yes. Now, can I deal with - can I now deal with the nature of the work. And, again, I don't want to traverse this too much. We have debated this until the cows come home. In my submissions at paragraph 56, I think, I talk about the differences in the work and I think more relevantly for the Full Bench is the table of skills and responsibilities comparison which is set out there.

PN3235

Now, as I said, there was a lot of debate and I should say that the source has been put in the far right-hand column of where we get that from and it's obviously all evidence based and, again, I don't intend to take your Honours and Commissioner through it. It goes for two or three pages, but that's consistent with the evidence we've given about what we say are the tasks and duties relevant to the industry.

PN3236

Now, there's a lot of cross-examination from both sides about skills and how difficult it was and how difficult it wasn't, et cetera, and can I make these observations. The first thing I'll say is this. As night follows day, you don't need any evidence about this, driving a cab chassis off the wharf to a location not too far - it really doesn't matter where the location is but, you know, within half hour drive or 15 minutes or even an hour drive, simply a cab chassis where all you have to do - and the evidence is clear about this - all that happened about the evidence, I should say this, is that various witnesses tried to embellish how difficult all this was.

PN3237

But at the end of the day, the evidence is clear that what you do is you go down to the wharf, you may or may not do a check about whether there's damage on it. You've got to put mud guards on. Not all the time, but sometimes. You've got to put trade plates on. Sometimes you might have to put some mirrors, have a bit of a check around, collect some paperwork, jump in the thing, familiarise yourself with it and you drive to the location where the - to the location either at PrixCar or WWL, I think it was. You drop it off there. You'll do another inspection or somebody else does another inspection. You hand in the paperwork, you hand in the keys, that's the end of it. That's the end of it.

PN3238

You can't come here and give evidence to say, well, as some of these witnesses did: "No, no, that's as difficult as driving a fully laden semi-trailer from Sydney to Perth." That is just nonsense and that should be just thoroughly rejected because on any logical assessment, that cannot be the case.

PN3239

SENIOR DEPUTY PRESIDENT HAMBERGER: I think the evidence is more like driving an empty semi-loader from Sydney to Perth. Driving a laden truck isn't necessarily in itself harder than driving an empty driving. You know, I don't think it was anything, sort of, higher than that, I suppose, it wasn't saying - - -

PN3240

MR BARONI: I think that's right and that was the evidence of Mr Haining and Mr Haining has actually - - -

PN3241

SENIOR DEPUTY PRESIDENT HAMBERGER: He's done a lot of driving.

PN3242

MR BARONI: He's done a lot of driving and he was very honest with his answers and, you know, the cross-examination with Mr Haining made clear on any view that, for example, the debate I had with him about the seven-car enclosed trailer that he used to cart cars which was computerised and they had platforms in there. On any view, the work involved in loading those cars, strapping them, restraining them, driving a fully laden semi-trailer is significantly more and more skilful than simply jumping in, as I said, a cab chassis from the wharf and delivering it to a facility where that truck gets them compliance plated, et cetera. It just - - -

PN3243

SENIOR DEPUTY PRESIDENT HAMBERGER: One of the problems for you, I think, is that the Road Transport and Distribution Award doesn't actually say much about duties at all. You know, the classifications, well, there are certain allowances you get for some specific things that you might do, but they're exceptions. And then if you look at the classification, it is all based around, you know, well, largely based around the size of the vehicle you're driving.

PN3244

MR BARONI: I'll come to that. I'll come to that because I have an answer.

PN3245

SENIOR DEPUTY PRESIDENT HAMBERGER: So, obviously, this award covers an awful lot of different people doing an awful lot of different - driving a lot of different vehicles with lots of different loads.

PN3246

MR BARONI: Yes, yes.

PN3247

SENIOR DEPUTY PRESIDENT HAMBERGER: And, you know, some may be more challenging than others.

PN3248

MR BARONI: Yes.

PN3249

SENIOR DEPUTY PRESIDENT HAMBERGER: But it doesn't really go - there's no - it's hard - the trouble is it doesn't make a lot of fine distinctions about some driving jobs are more difficult than others.

PN3250

MR BARONI: No, it doesn't. It doesn't, your Honour, but you come to that conclusion if you look at that award in a vacuum, you come to that conclusion.

PN3251

SENIOR DEPUTY PRESIDENT HAMBERGER: Right.

PN3252

MR BARONI: And this is one of the submissions that Mr Ryan had - well, not submissions, but part of his cross-examination was in relation to rigid vehicles and I'll come to this. But the reality that one needs to contemplate in determining what that award does or doesn't do - and you can't look at it superficially or in a vacuum - is you have to understand the history of it and I'll come to that a moment. To simply say, well, it says a rigid and you then, without understanding the history of the award, say, well, a cab chassis is a rigid as well coming off the wharf, that's an erroneous view. It would fly in the face of the principles in Berri, for example, because if you think about the antecedents of that award, it's been around for decades. We all understand the history of that award and the awards which are incorporated into it as a consequence of the modern award process, for example, like the Transport Industry State Award, were about carting freight. That's what they were.

PN3253

SENIOR DEPUTY PRESIDENT HAMBERGER: Sure, sure.

PN3254

MR BARONI: Because in 1940 - - -

PN3255

SENIOR DEPUTY PRESIDENT HAMBERGER: No, that's not really - I mean, we know that but - - -

PN3256

MR BARONI: No, no, no, but it gets to your point, your Honour. This is very important and I'll take you to a decision in a moment whilst we're digressing into that issue. Reading the classifications, for example, a grade 3 where it talks about a rigid with three axles, can't possibly mean a rigid with no body. It had to mean, back then, or as it has transgressed over the decades, it had to mean a rigid, a truck that I can actually use to carry something, otherwise it would be pointless to have a classification in a transport industry award that actually meant a truck that you couldn't actually use given that we're all in agreement that this industry was never part of the transport industry.

PN3257

To come to that conclusion would be ridiculous and an erroneous adoption of the principles in terms of how you would interpret the relevant words in the clause because if your Honour adopts that approach, you simply look at the clause without its context and say, "Well, it says rigid, it doesn't matter if it's got a body or not because that would be the logical conclusion", we say, well, that can't be right because there was no contemplation of that when the award was made or its predecessors. We're all carrying freight. That's what it was doing.

PN3258

So to have a classification that would by analogy mean, well, it doesn't matter whether it's got a body on it or not and it doesn't matter whether it can carry any freight or not, if you're just driving a truck back in 1940, then you're in. But they're be no point in having a truck with no body in those days covered by an award because you couldn't do anything with it. It's not even roadworthy.

PN3259

SENIOR DEPUTY PRESIDENT HAMBERGER: I'm not sure that's really answering my question or answering my issue.

PN3260

MR BARONI: Well, it goes to the issue that you raised, your Honour, because what you're saying is the classifications don't really have a descriptor of the tasks involved. But I'm not entirely sure that that's the way to approach it. The way to approach is that you look at those - and I'll take your Honours and the Commissioner to it in a moment. The way to approach it is that what is the purpose of the award? What is the context in which the award was made and what was its purpose? It's from there that you glean and understand what the classifications were designed to do. The classifications weren't simply designed to have somebody jump in a truck and drive it and do nothing and just drive around the block. The purpose of the award is to have somebody driving a truck to pick up a load or drop a load off.

PN3261

SENIOR DEPUTY PRESIDENT HAMBERGER: Sure. No, no, and I appreciate that.

PN3262

MR BARONI: That's inherent in those classifications. Then if you approach it in that way it's implicit in that definition that these are the tasks which are required and naturally one would readily concede that between the different grades there will be different tasks because if I'm driving a semi-trailer, I might have to unhitch it, hitch it, do all sorts of things with it, load it differently, restrain it differently compared to a rigid with a Pantech where I just throw the stuff in the back, shut the door and off I go. One readily concedes that, but the implied tasks are those. That is that I am going to jump in a truck to carry something, not jump in a truck to just drive around the block because it's got no body on it. And you have to accept that proposition, your Honour, with respect, because - - -

PN3263

SENIOR DEPUTY PRESIDENT HAMBERGER: No, no, that's in issue. I don't think that's - I don't have a problem with that.

PN3264

MR BARONI: No, no, because we're all in agreement that the industry was not covered. So that analogy, which I have just put to you, is that the award which we are now covered by could not have contemplated driving trucks with no bodies or the associated tasks which went with that particular part of the industry which wasn't regulated. That's the point.

PN3265

DEPUTY PRESIDENT SAMS: How do you have a driver on a weekly rate of 715.54 being paid more than $20 less than someone who doesn't even go into a truck? That is a greaser, a cleaner, a yard person or a washer?

PN3266

MR BARONI: Yes, I understand. I understand that and I apprehend that that would be put against me. I was waiting for it, your Honour, and no doubt my friend will say something about it.

PN3267

SENIOR DEPUTY PRESIDENT HAMBERGER: They might ride a bicycle - they'd still be less than somebody who rides a bicycle.

PN3268

MR BARONI: The best way I can answer your question, your Honour, is to say this, and again I don't want to sound like a broken record and, perhaps, I am, but you've got to go back to zero. Where did we come from? Where did we come from and what have we done? How was the industry developed and built compared to an award that has classifications in there which were built around or conceptually to do with the carrying of freight.

PN3269

SENIOR DEPUTY PRESIDENT HAMBERGER: But what you haven't done is really analyse. I mean, yes, you've said there were these duties that you typically do if you were driving a truck which is laden and, therefore, you don't need to do them if you're one of your - who are in the vehicle relocation industry. But you haven't really shown how that fits with, if you like, the work value of each of the different classifications and the award and said, well, as a matter of logic, therefore, it fits in here. Your argument is, well, you know, we've never had to worry about the award before. Now we're going to have to worry about it's going to be (indistinct) cost, in fact, which is, I mean, that is obviously something we have to have regard to. I'm not saying we don't, but, you know, but then to slot - but then we've got to work out how do you fit these employees into the classification structure. You're saying, look, it doesn't make sense just to take the existing classification structure because there's a whole load of stuff that's implicit there because they weren't thinking about people driving vehicles with nothing in them. But what you haven't done is actually show, you know, where any kind of logic as to how they might fit. I mean, it is not logical in terms of work value to suggest that somebody driving a vehicle, even with nothing in it, is lower, a lower level, than somebody who is a foot courier or somebody who washes the vehicles.

PN3270

MR BARONI: I understand that, your Honour. As best as I can put it is this and I'll say no more about it and then I'll get onto the grades which I think is probably the appropriate point given where we are.

PN3271

SENIOR DEPUTY PRESIDENT HAMBERGER: Right.

PN3272

MR BARONI: The work value arises this way. You have an industry which was fundamentally different other than the fact that they drove trucks. There's lots of people that drive things, that doesn't mean that they're in the transport industry. They drove a truck. The evidence suggests quite clearly, in my submission, that the tasks involved are different. They're less. They must as a matter of common sense be less and the evidence suggests that they're less. As I said before, when you have to load, restrain, you know, tarp, for example, a semi-trailer or a flatbed rigid, there is a lot of work, physical work that's involved in that. It's not only simply driving the truck and, again, in the transport industry as it's developed over the years, there are no doubt examples where one simply drives up to a yard, a distribution centre, and it'll be loaded for you, but you still have to restrain it. I have to concede that, I mean, because there is no question that that will happen. Some of the sophisticated distribution centres like Woolworths or Coles, for example, the drivers won't do anything.

PN3273

SENIOR DEPUTY PRESIDENT HAMBERGER: We don't pay those drivers less.

PN3274

MR BARONI: No, you don't pay those drivers less, but you're not paying them less because there's a historical context of where they are because that same driver 50 years ago would have been doing it. Technology has moved on. I mean, that's the reality of it. But obviously what's happened is you don't go backwards and say: "Now because you're doing less, you get paid less." That's the context that I'm asking the Bench to consider. 50 years ago, we still would have had distribution centres. They would have been far from technical - nowhere near as technologically advanced as they are today. There would have been completed different methods of loading. You know, the forklifts that we have today, the types of trailers that we have today, quick hitch operations wouldn't have existed back 50 years ago. So the driver who was a grade 7 driving a semi-trailer with a load of groceries going to a supermarket from a distribution centre would have done a significantly greater amount of work then than they do now.

PN3275

SENIOR DEPUTY PRESIDENT HAMBERGER: Right.

PN3276

MR BARONI: So that's the answer, in my view, to your question, that is, well, they don't get paid any less in circumstances where today, because of modern technology, they don't have to do that work. But, again, that's in the context of the Transport Industry Award. What you're now doing is bolting on something that was never part of that award. So what, in essence, the union is saying - and I can understand why they're saying it - is that, well, you don't look at any differently. There's no difference. They just drive a truck, end of story. And that's what I'm urging the Bench not to do because there are differences and you have to understand where they came from.

PN3277

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, I mean, there might be differences, but the question is - and I'm sure the evidence really - I mean, there's things - certainly there are things that some drivers do, maybe many drivers do who are currently covered by the award that these drivers don't do, that may well be true. There would be other drivers who possibly don't do all those things and are still covered by the award. But in terms of work value, I mean, the fact that you have to do certain things as well as other things doesn't mean that the job is a higher - has got a higher value. You don't just look at the number of tasks to determine work value. You look - are they more difficult? You know, like, okay, so you've got a tarp something. Is that actually particularly more difficult than driving on a busy road? You know, it's all just part of the job.

PN3278

MR BARONI: But, again, if you look at it insolation, that might be an appropriate question. But we say it's not because you have to have regard to the history of the award and I've addressed this in my submissions. I can't remember what case I referred to, but it clearly implies that variations to rates historically were based on tasks which were required to be done - I'm just trying to find the relevant case and it was in relation to the Transport Award as it was then, I think, in 1946 or 48. I can't remember the case, but it's in my submissions.

PN3279

DEPUTY PRESIDENT SAMS: The Drover's Award?

PN3280

MR BARONI: That might be it, your Honour, but it's there.

PN3281

SENIOR DEPUTY PRESIDENT HAMBERGER: So can you take me to it? So is this 56 in the original submissions?

PN3282

MR BARONI: Well, it was always dealt with in the original submissions - - -

PN3283

SENIOR DEPUTY PRESIDENT HAMBERGER: Sorry, where are you saying this is?

PN3284

MR BARONI: I'm just trying to find it, your Honour. Just bear with me a second.

PN3285

SENIOR DEPUTY PRESIDENT HAMBERGER: There's some stuff about the history. History of transport awards.

PN3286

MR BARONI: Here we go. So those submissions there commencing at, I think, clause 14.

PN3287

SENIOR DEPUTY PRESIDENT HAMBERGER: Right.

PN3288

MR BARONI: It sets out various matters which I - - -

PN3289

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, but I mean, that's more about whether - I mean, I don't think we're in any doubt that the award does not cover these people currently and, you know, it's been fought out and determined by the Federal Court and it probably follows that the award wasn't made with these people in mind. The award was probably made over the years. Well, you know, there's a whole history, obviously, of the award and obviously when the original awards were made, they didn't have the current circumstances and the current work in mind either. But I'm not sure that it really answers my question which is that, okay, there might be some things they don't' do that some other drivers do do but is it actually - is that of higher value? Are they more difficult things? Do they involve a greater level of responsibility as opposed to just some extra tasks you have to do?

PN3290

MR BARONI: Well, I think, again, yes, I understand the - I understand the example. But, again, if you do a comparison, which the evidence does, as I said, and again using the wharf as an example, it was significantly different and less onerous to pick up a truck, a cab chassis from the wharf and simply deliver it 10, 15, 20, 30 kilometres down the road to a processing facility. That is completely different compared to a general transport task where you're not only picking up the truck, you've got to load it, you've got to unload it and that was the evidence of Mr Haining when he was delivering high luxury cars. He's got to restrain it. There are significant obligations under the heavy vehicle national law and there's a lot of debate about this. But at the end of the day, if you're not carrying anything, you don't have to worry about restraining it. That's part of the national heavy vehicle law. If you're not carrying it, you don't have to worry about any of the mass requirements. That is you can't be over weight. And these are all fundamental things that we don't have to do in this industry.

PN3291

DEPUTY PRESIDENT SAMS: I think we all understand that.

PN3292

MR BARONI: Your Honour, that goes to the very nature of the tasks and the responsibilities. That's the point, as best I can make it. When you look at the two industries, they are fundamentally different. The only common denominator is that they drive a truck, but it's not as simple as that, as simply driving a truck. There is much more to driving, as I said, and I hate to harp on this again, but a fully loaded semi-trailer compared to driving an empty cab chassis 15 kilometres down the road. A fully loaded semi-trailer requires all sorts of considerations, breaking distances, turning circles, how do I get around a corner, fatigue laws, national mass, all those sorts of things that I spoke about. There are fundamentally different issues and even if you go down to smaller vehicles.

PN3293

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, but not everybody is just driving down, you know, 15 kilometres down the road. You've got people doing long distance operations.

PN3294

MR BARONI: Yes, but not all of them. That's a small part of it. That's a small part of it.

PN3295

SENIOR DEPUTY PRESIDENT HAMBERGER: But this is the problem about the cherry-picking. You've got some people only do this. And the trouble is the award doesn't make those kind of fine distinctions. It doesn't really lend itself to those kind of distinctions because there might quite a lot of truck drivers who are only driving 15 kilometres down the road and, you know, some people drive on easy roads and some people drive on harder roads, but it doesn't make those kind of distinctions. That's where it's hard to see how you could - you know, this is the problem, obviously, in trying to fit these people into the award.

PN3296

MR BARONI: I'll take your Honours and Commissioner now to the grades because this neatly falls into this issue and debate and I was going to deal with it later, but I may as well deal with it now. Obviously, the Full Bench and it's clear has some difficulty with the proposition that - forget about whether it should be a separate classification, but there is some difficulty, as I understand, certainly the signalling from the Bench about it being $18, whatever it is, and that the reality of that is it's less than a grade 1. I don't need to say anything more about that, but is what it is.

PN3297

SENIOR DEPUTY PRESIDENT HAMBERGER: Right.

PN3298

MR BARONI: But then what the Bench has to grapple with is this. Again, the evidence is quite clear on the types of vehicles that this industry drives, relocates, whatever you want, and you can break it into - well, you can, you can break - - -

PN3299

SENIOR DEPUTY PRESIDENT HAMBERGER: Well, there's been a bit of evidence that there's quite a diversity of vehicles.

PN3300

MR BARONI: Yes, but you can break it up into these three groups.

PN3301

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay.

PN3302

MR BARONI: As far as my clients are concerned, the ones I represent, the vast preponderance of the work they do is unregistered vehicles and the vast preponderance of those unregistered vehicles are vehicles off the wharf going to a facility which is not a long way away. That's the bulk of what the industry does in general terms. Then there is another category which relocates trucks and my client does it as well. For example, Linfox want to trade in a prime mover. It's sitting at their yard. The driver get shuttled there in a ute or another car. They'll jump in it and drive it to the sales yard and they leave it there. So there's that category. And that might be a prime mover. It might be - so any second-hand truck which registered. It could be big or small, it really doesn't matter.

PN3303

Then there is an even smaller category of what seems to be the evidence that there may be the odd loaded vehicle or articulated vehicle which is carried. But that's not the industry. That's a very, very small part of the industry. So the preponderance of what the industry transports, if I can use that term, is unregistered vehicles from a wharf either to a facility which is close by or to a significantly lesser extent, long distance. And the long distance part of that task is either trade plated vehicles or on fewer occasions plated vehicles which are being transported between locations. So there's no dispute about that.

PN3304

So then you go to the classifications and if I can start, for example, at classification No.10. Even if there was a vehicle that would fall into that - which there's no evidence or suggestion that any vehicle that fell into that category existed - but even if there was, it would be such an inconsequential part of the vehicle relocation industry. It happens. It may happen, but it's not the predominant part of what certainly my clients do, in fact, hardly at all. So you'd have to be driving a multi-axle platform trailing with carrying capacity in excess of 70 tonne. It just doesn't happen. It just doesn't happen and if it did happen it'd be so rare that it wouldn't matter. So what do you do? What do you do there? I mean, it just doesn't - nobody fits into that category because there'd be nothing to drive.

PN3305

COMMISSIONER LEE: Wasn't there a concession that 10 was not relevant?

PN3306

MR BARONI: I think that's right, but I'm just starting at the top working my way down, Commissioner. Then classification grade No.9. I think, Commissioner, you might be right, there is also some concession about this that it's really irrelevant and nobody fell into this either. There was no evidence that anybody carried those sorts of vehicles. The next one then would be grade 8 and the most obvious type of vehicle that may or may not be carried from time to time would either be - and I think there might have been some evidence about a mobile crane being driven from one location to another. Now, let's assume that that's correct and let's assume it's for a short distance and it would take you two hours.

PN3307

SENIOR DEPUTY PRESIDENT HAMBERGER: But, I mean, take that as an example. If you were driving, presumably - mobile cranes, presumably, aren't carrying any goods. So, you know, if your client was driving - if an employee of your client was driving a mobile crane for a couple of hours, what's the difference for anyone else driving a mobile crane?

PN3308

MR BARONI: Well, because no doubt that the person driving that mobile crane, that's only part of their job. They'll be driving it somewhere to do something with it. That is to lift or to lift - - -

PN3309

SENIOR DEPUTY PRESIDENT HAMBERGER: I see.

PN3310

MR BARONI: I mean, otherwise, there would be no - - -

PN3311

SENIOR DEPUTY PRESIDENT HAMBERGER: To operate the crane, you mean?

PN3312

MR BARONI: Yes, absolutely. It follows that that would have to be the reason.

PN3313

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay.

PN3314

MR BARONI: Again, if you factor in the history of the award, then a driver of rigid vehicle and trailers or double articulated vehicles, I mean, I'm not sure that there is any evidence of such a vehicle being transported and, again, even if there is, there would be such an infinitesimal part of the work. So there's nothing that one would fit into that grade. Grade 7 is equally the same. You'd have to be driving articulated vehicles to fall into a grade 7, otherwise, it simply wouldn't apply.

PN3315

Equally, with six, you'd have to be driving some sort of heavy vehicle combination, otherwise, it wouldn't apply and there seems to be very, very little evidence, if at all, about these sorts of vehicles being carried. And, again, to the extent that they are - I withdraw the word 'carried' - to the extent that they are driven, it's not what we're dealing with. So, again, there's a question mark over what relevance grade 6 would have.

PN3316

Then we go to grade 5. It talks about a driver of a rigid vehicle with four or more axles and this is perhaps where the debate starts. You've got the one below, driving rigid vehicle and a heavy trailer combination again. Based on the evidence, it would hardly have any application whatsoever. And there is some debate about knowing certainly off the wharf whether the GBM - what the GBM of the vehicle is. There was some evidence given by Mr Bradac which was then dealt with by Mr Gibian about plating and non-plating, but that was only in relation to one particular type of vehicle. That was a Mercedes.

PN3317

The evidence generally is that you don't know with any specificity what you're picking up from the wharf other than in general terms. The same issue then arises for grades 4 and 3 in respect of that. So then the question that one asks themselves is if I'm simply going to appoint somebody to one of these particular grades, what grade do I appoint them at? Where do I start because I don't know what vehicle they're driving from day to day.

PN3318

There was evidence of PrixCar from the HR managers, both of them, the past and the present, that they appoint people to particular grades. Why? Because they're allocated a particular vehicle. They know that they're going to be driving a semi‑trailer, a seven‑car car carrier or they know they're going to be driving some other configuration of vehicle. That's what they're appointed to because that is their job. Their job is to drive a particular type of vehicle with goods on the back of it. That's why it's easy for them.

PN3319

Their evidence also was that they have only come into the vehicle relocation industry in the last two to three years. That was the evidence of both of them and they made that concession. It follows again the evidence of both Mr Cassar and Mr DeClase was that the vast preponderance of the work they do is transporting vehicles around, primarily cars and to a lesser extent other trucks on the back of trailers, and to an even lesser extent vehicle relocation by driving them.

PN3320

If you don't know what you're going to be carrying with any certainty, what do I offer them? Where do I put these people? Do I simply make them a grade 2 and then, you know, change their rate every particular day because they're driving different vehicles? That evidence was quite clear in the sense that there was difficulty in understanding what you would be driving on a day‑to‑day basis.

PN3321

As I said, the concessions were made by not only Mr Cassar and Mr DeClase in their evidence, but also by Mr Haining; that he had been there for a long, long, long time and he was appointed to a particular grade. His evidence was that that was really the grade he had always worked to because they're the sorts of trucks he drives; carrying cars. That's the real difficulty why we say that the bench should consider a separate classification.

PN3322

Now, the bench might say, well, I can amend one of these classifications to say something about an employee in the vehicle relocation industry. That might be something the bench may consider and if you're against me in relation to what we say should be the primary position, then that's what we would suggest the bench have a look at; to say that, well, a driver may either fit into grade 2 or 3. Just like, for example, grade 2 deals with a

PN3323

tow motor driver, so it's a separate classification with distinct tasks than simply driving vehicles. So is grade 3; it talks about a forklift driver.

PN3324

There would be no logical reason why you couldn't insert a provision in there in the alternative that says, "A driver who goes to relocate vehicles shall be a grade 3" or "a grade 2", and that would then overcome the problem which I've just put to the Commission about identifying how you appoint a driver to a particular grade. Even if - and putting the TWU's evidence at its highest or their argument at its highest - you can determine what vehicles, for example, you're picking up off the wharf by a GVM or whatever, you don't know that every day and you're picking up different vehicles every day. Every day you're doing something different by the very nature of the industry, so what do I peg them at?

PN3325

In my submission, the higher duties provision is not an answer to that because you would be going up and down like a yoyo day in, day out. That would be an unsatisfactory outcome, in my submission, for the bench to consider, so we say that is a live issue again. Our position is what it is in relation to where the rate of pay - but I'm not sure that the rate of pay is really the issue. The Full Bench will form a view about that one way or the other, that's as clear as crystal.

PN3326

The underlying issue in relation to that issue is, you know, should there be a separate classification or a classification within a classification to deal with this particular issue that this industry faces. We say there should be. There should be a distinct pay level for drivers that are engaged to relocate vehicles. That's the only fair thing for the bench to do, in my submission, to deal with the peculiarities of this industry.

PN3327

DEPUTY PRESIDENT SAMS: Just one classification?

PN3328

MR BARONI: In our submission, it should be just one. I don't make any submission as to what that should be, but in my view it should be just one; one neat one. For all the reasons that we have been debating this morning about the differences in the industry, the difference in the work, the irregularity of consistent vehicle driving, all those sorts of reasons, it would make it the easiest way forward. Don't forget, your Honour, in our schedule it does say that if you're driving loaded vehicles, for example, well, you will get paid at those applicable rates. We recognise that that does happen from time to time, but it's not the work we do; it's ancillary to what we do.

PN3329

I just wanted to finish off dealing with some of the evidentiary issues, unless your Honours, Commissioner, have any further questions in relation to that issue. I have dealt with the nature of the work. I think we have done that to death in some respects. I have made some submissions about the grading just then and I've also noted, your Honour, that when one has to have regard to those classifications - this is the last thing I wanted to make a point of - particularly that the lower grades, for example, grades 2, 3 and 4, when they talk about a reference to a rigid vehicle.

PN3330

I think it's very important, as I said earlier, that you shouldn't read the reference to a rigid vehicle in some sort of vacuum which would then be analogous to saying, well, it's doesn't matter whether you've got a body on or not, you're a rigid vehicle, end of story. That should not be the approach the bench takes, because obviously that phrase in this award has a particular meaning historically.

PN3331

Can I just hand up a decision. Your Honours and Commissioner, this was a decision dealing with this particular award. It was a decision of his Honour Tracey J and the reference to this is Transport Workers Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829. The dispute that was before the Federal Court was the interpretation of the award as it related to two things, from memory; the payment of crib breaks and whether they arose in the circumstances of shift workers.

PN3332

The underlying dispute in relation to that was how you then determine what a shift worker was, given certain words in the current award. They may have changed now, but in the award as it was then about working a day shift. The dispute arose that, well, if you're working a day shift you're a shift worker and, therefore, you have an entitlement to the crib break. That was the nut of this case.

PN3333

Importantly, in terms of the context of interpreting the award, if I can take your Honours to paragraph 38. His Honour references there Short v FW Hercus Pty Ltd and then he goes on to discuss that case. Then, over the page, he cites a further case in Australian Agricultural Co Ltd v Federated Engine drivers and Firemen's Association of Australasia. He quotes from that case and says this:

PN3334

His Honour concluded at 518 that, "Where the circumstances allow the court to conclude that a clause in an award is the product of a history out of which it grew to be adopted in its present form, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history and to prefer to peer unaided at some obscurity in the language."

PN3335

Then he goes on to quote McHugh J, but the point there is that - and this is why I'm labouring on this issue about the history in the context of the award, because a reference in the award as I said - and I won't spend too long on this, but I just want to re‑emphasise this point, your Honour, with the debate I was having with your Honour presiding. The reference to "rigid" has to be understood in the context of a rigid vehicle which is capable of carrying goods, because that was the history of this award. Otherwise, it would make no sense.

PN3336

If your Honour is now going to simply ignore that history and say, "Well, I'll just take the words literally and it's any rigid. It doesn't matter what you're driving", then in my submission that would be an erroneous construction of the words in those provisions. That's why we say that lends weight to my submission about having a particular distinction either separately or within a grade about recognising the vehicle relocation industry. I don't really need to say anything more about it than that, but I think that decision of Tracey J puts that squarely for consideration.

PN3337

I have dealt with the evidence of Mr Cassar and Mr DeClase. I make a couple of observations about their evidence. Your Honours and Commissioner will recall that there was some debate that I had with both the witnesses about the similarities in their evidence. I won't put it any higher than that, but I think that evidence should be treated with caution. The second thing I say about their evidence is that it's clear that their evidence was not really about assisting this process, in a sense. It was really about trying to bolster their competitive advantage in the marketplace.

PN3338

That's what their evidence was about, because their whole lament was about the enterprise agreement that they had negotiated with the Transport Workers Union and that they were finding it difficult to compete. Both those two gentlemen conceded that their rates were significantly higher than the award and they wanted a level playing field. That came clearly out in the evidence.

PN3339

Can I also take your Honours to - my recollection is both Cassar and DeClase conceded the issue about the grades, which I was debating with your Honours and Commissioner a moment ago; that is that would appoint somebody of a particular grade. I'm not sure if your Honours have the transcript readily available of the proceedings.

PN3340

DEPUTY PRESIDENT SAMS: What date?

PN3341

MR BARONI: Tuesday, your Honour.

PN3342

DEPUTY PRESIDENT SAMS: 20 March?

PN3343

MR BARONI: Yes. I will just find the reference. If I can take your Honours to PN2165. This was cross‑examination of Mr Cassar.

PN3344

MR GIBIAN: Re‑examination.

PN3345

MR BARONI: Yes, it was re‑examination - no, Was it? Sorry, that's my error. I don't need to go there, your Honours. My apologies for that. The point being, in the evidence that they both gave, they had acknowledged the fact that when they employed a driver, they would appoint that driver to a particular grade and the reason for that was that they knew what work that driver was going to do. That's the point that came out of both the cross‑examination of Mr Cassar and Mr DeClase.

PN3346

Can I then briefly deal with - and I'm not entirely sure that we need to spend much time on this, if any at all - the issue about the National Heavy Vehicle Law. The simple point that has come out of the evidence, I think, is this: it's simply clear that depending on what you're doing, various parts of the National Vehicle Law will apply or won't apply. There is no dispute about that. All the witnesses made concessions - that I cross‑examined - about this.

PN3347

Mr Gibian will raise a point about the evidence of Mr Bradac, where Mr Bradac had in response to a question from Mr Gibian said that - and this was in the first proceedings, not the ones I was in - the National Heavy Vehicle Laws apply. If one looks at the transcript, the question was very broad. It was a general question and the answer was, "Yes, it does apply", because in fact it does apply. The question that I was asking was what specific provisions apply.

PN3348

Again, the concessions were from Mr Haining and Mr Cassar, I think from memory, and also Mr DeClase - we'll come to Mr Mealin in a moment - that if you're not loading anything or unloading anything, there's nothing to restrain so that part of the National Heavy Vehicle Law doesn't apply. If you're not carrying anything, then you don't need to worry about being overweight; that part of the National Heavy Vehicle Law doesn't apply. That was the substance of their concessions.

PN3349

The only thing that we all concede that would apply from time to time in the event that there is long distance travelling, is the provision for fatigue management as part of the NHVL, but in all other respects it simply doesn't apply to those sorts of movements - the majority of movements - that this industry makes, because it's not carrying anything. Whilst it might seem trivial on one view, it's an important issue to raise in understanding the context of the award and where these people should fit.

PN3350

The evidence of Mr Haining was - and I think I've addressed this briefly before - that when he started, he was allocated a particular grade and he conceded that that was based on the vehicle configuration that he was going to drive, and he has been on that same grade ever since. He explained that his predominant work that he has done for many, many years involves loading, unloading, securing the load, dealing with hydraulic platforms, restrains, making sure that he's not overloading, et cetera. He acknowledged that in those circumstances the National Heavy Vehicle Law would apply.

PN3351

He also in his evidence conceded that when he wasn't doing any of those functions - that is not carrying, not restraining, et cetera - none of those provisions of the Heavy Vehicle Law would apply. He had to; it was a proper concession that he made. I then put the question to him at PN2613 - I think his response is at PN2613 - about a comparison of the work that he was doing on that particular day when I cross‑examined him. That is, loading, taking a seven‑car carrier from Sydney to Perth and I asked him to concede whether the tasks would be different.

PN3352

In fact what I was asked him was that the amount of work or skill required would be significantly less when you're simply driving a truck off the wharf to a facility and he would not concede that. In my submission, that's simply untenable. I mean, as a matter of logic based on the evidence that answer can't be maintained. They are simply completely different jobs which have completely different skillsets and, as is clear from the evidence, when you're dealing with a fully laden vehicle they are significantly more onerous than a simple cab chassis.

PN3353

Then can I quickly deal with Mr Mealin. I think the bench will be very cautious of what it does with Mr Mealin's evidence. He was very argumentative and wouldn't make concessions where proper concessions should have been made. The simplest of things required the question being asked seven times, for example.

PN3354

One example that I raise is dealing with fuelling a truck. At first instance he conceded that it's a relatively simple task, then on re‑examination, given the opportunity, he made some reference to a vehicle that had six tanks and he has to purge it, turn it upside down and do all sorts of things. I mean, it's a nonsense answer. At the end of the day he should have made proper concessions about the questions that were being put to him. At PN2868, I put to him this question:

PN3355

You would agree with me that the task involving driving a cab chassis from one location to another are significantly less complicated than driving a fully loaded semi‑trailer. Would you agree with that?‑‑‑I would agree with that.

PN3356

That was his answer. In certain circumstances, he has made appropriate concessions. His own evidence was that when he was working at Truck Moves, about 75 per cent of the work he did was driving trade‑plated vehicles. He had a bunch of photos, which I think your Honour presiding decided to cross‑examine him on or ask questions of, and I think his evidence was that they were all trucks that he drove at some point in time with Truck Moves or others.

PN3357

Again that's beside the point, we say, because on his own evidence 75 per cent of the work he did was not those vehicles. That's the important thing. It's all well and good to focus on the peripherals. What one needs to focus on is the actual work that the individual does on a day‑to‑day basis.

PN3358

There was evidence from Mr Whitnall in his 24 March statement, I think, which seemed to be unchallenged about the work he did. That can be found at, I think, paragraph 93 of Mr Whitnall's statement, which is TM3, where he has done an analysis of the job as Mr Mealin had done while working for Truck Moves. Your Honour, they are the matters I wanted to address the Commission on. Unless there is anything further - - -

PN3359

SENIOR DEPUTY PRESIDENT HAMBERGER: No. Thanks very much.

PN3360

MR BARONI: Thank you.

PN3361

SENIOR DEPUTY PRESIDENT HAMBERGER: I think we were going to hear from Mr Ryan next.

PN3362

MR GIBIAN: I think he had decided to go first.

PN3363

SENIOR DEPUTY PRESIDENT HAMBERGER: Is that okay?

PN3364

MR GIBIAN: I'm content for that.

PN3365

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes. Mr Ryan?

PN3366

MR RYAN: Thank you, your Honours and Commissioner Lee. The business model that Truck Moves has operated has been without award coverage, as Mr Baroni has told us several times. The Full Bench has determined they should come within the award so their business model will need to change, as the Road Transport and Distribution Award applies.

PN3367

Mr Baroni just told us that there are three groups of trucks that Truck Moves engage work with. One is unregistered vehicles that are moved off the wharf. Once they leave the wharf, they're on a public road and I think the evidence tended to be that they were moved from Webb Dock to Laverton. To go from Webb Dock to Laverton you need to go across the Westgate Bridge, so once they're driving in traffic on the Westgate Bridge, they have to be driven by a qualified driver.

PN3368

If it's a three‑axle vehicle with or without a body, the work involved in driving that vehicle across the Westgate Bridge is identical. They have to ensure that they obey the road rules; they have to ensure that they don't have accidents; they have to ensure that they monitor traffic conditions. In effect, they're going from point A to point B on a public road and that's the nub of the reason why they need a licence to drive on a public road. The licence is based around the number of axles and the size of the vehicle.

PN3369

In ARTIO's submission, it became very plain that whether you're driving a prime mover which has three axles without a trailer, which is called bobtail, you're just driving from let's say Wetherill Park to Botany - just a prime mover without any trailer on the back of it and that is, a three‑axle vehicle without a body - if a driver did that day in, day out, they would be paid at a three‑axle rigid vehicle rate which is identical to the vehicle that is driven off the wharf.

PN3370

SENIOR DEPUTY PRESIDENT HAMBERGER: Is that a grade 4?

PN3371

MR RYAN: Yes, that would be a grade 4. That is a prime mover without any trailer attached. That would be driven as a grade 3 or a grade 4 vehicle depending upon how many axles it had. Some prime movers do have four axles, most of them have three. ARTIO submits that there is no fundamental difference between the duties of drivers in the vehicle relocation sector and the other 30‑odd sectors that are listed in ARTIO's submission at paragraph 13 - it's submissions of 22 December. Trucks are being driven by licensed drivers on public roads. That is the fundamental principle behind the structure of the system; the licence to drive on a public road.

PN3372

Mr Baroni talked about ARTIO's submissions with respect to the long distance award. I'm well aware of the Federal Court decision that found that Truck Moves was not covered by either the Road Transport and Distribution Award or the long distance award. ARTIO's submission doesn't bring them within the award. It's simply that the long distance award has a provision that allows - and this is in clause 14(c)(i):

PN3373

An employee who is engaged as a local driver under the terms and conditions of the Road Transport and Distribution Award -

PN3374

and who temporarily transfers to long distance duties - in other words, engages in a long distance operation - can be paid under the long distance regime, which is either cents per kilometre or hourly. It doesn't say the employer is bound to that award. It simply says that an employee engaged under the Road Transport and Distribution Award who is temporarily required to do a long distance operation can be paid under the long distance regime.

PN3375

The cents per kilometre regime under the long distance award has a loading of 30 per cent for a disability allowance to enable work to be performed at any time of the day, on any day of the week. It also has an additional 20 per cent loading as a notional overtime component. In effect, the long distance award - the cents per kilometre rates of pay are determined by multiplying the base rate in the award by 1.3, by 1.2, dividing it by 40. That is set out in clause 13.5(b); by dividing the minimum weekly rate by 40, multiplying by 1.3, 1.2 and that will give you an hourly driving rate. You then divide by 75 to obtain the kilometre rate.

PN3376

I note in the draft determination filed by Truck Moves that they are seeking the divider by 82 and multiplied by a loading of 1.1 - this is from clause 6 of their determination - and the 1.1 loading being paid in lieu of shift loadings, overtime, et cetera. The disability allowance is to compensate for the fact that work can be done at any time of the day, any day of the week, and that is at 30 per cent. It's not 10 per cent; there is a 20 per cent additional on overtime.

PN3377

As I have indicated, this provision 14(c)(i) does not bring Truck Moves within the long distance award. It simply allows somebody to be paid - - -

PN3378

SENIOR DEPUTY PRESIDENT HAMBERGER: So this is in the - sorry, let me just check this.

PN3379

MR RYAN: This is in the Road Transport (Long Distance Operations) Award, your Honour.

PN3380

SENIOR DEPUTY PRESIDENT HAMBERGER: Which clause is this again?

PN3381

MR RYAN: Clause 14(c)(i), which is on page 22 I think of the - I'm not sure if you have the same - - -

PN3382

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, okay, so:

PN3383

An employee who is engaged as a local driver under the terms and conditions of the Road Transport and Distribution Award 2010 and who is required by the employer to temporarily transfer to duties covered by this award must be paid an allowance of 1.24 per cent of the standard rate on each occasion.

PN3384

MR RYAN: And "duties covered by this award" include, as Mr Baroni pointed out, driving on long distance operations.

PN3385

SENIOR DEPUTY PRESIDENT HAMBERGER: But isn't the definition of "long distance operations" - it has got to be interstate, I think.

PN3386

MR RYAN: No. A long distance operation includes an interstate operation, but a long distance operation is defined as 500 kilometres - 500 or more return.

PN3387

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay, any interstate operation or - - -

PN3388

MR RYAN: Or any interstate operation.

PN3389

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay.

PN3390

MR RYAN: The rationale for why interstate is in there, because I think all of us in this room are well aware that pre‑2006 the industrial relations system was based on interstate industrial disputes and the corporation's power of our constitution was used by the Howard government. I think it was 2006 when those amendments were made, so it was simply - an interstate operation has just flowed through from those days.

PN3391

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, all right.

PN3392

MR RYAN: There is a distinction between driving and unloading under the long distance award. The rates for loading or unloading under that award, the 1.3 or the 30 per cent disability component apply and that is a time based payment system, whereas 97, 98 per cent of driving done under the long distance award is paid on the cents per kilometre method. In one sense loading/unloading is done on a time based system; driving is factored into where a notional overtime component and disability allowance has already been built in.

PN3393

Most linehaul drivers these days would not spend much time in loading and unloading, if at all. Most linehaul drivers these days - I think as Mr Baroni conceded is too strong a term - they may go in and collect their truck and head off to their interstate depot, but I just want to reiterate the point that clause 14(c)(i) talks about an employee being paid on a CPK system.

PN3394

Truck Moves currently employs casuals at $22.90 per hour for all hours worked. No overtime or other penalty payments. When I asked Mr Whitnall what the casual loading was for, he couldn't recall until I put it to him. The $22.90 - if it employed these drivers as a permanent employee either full‑time or part‑time, then the current hourly rate of 22.90 would cover all grades or classifications up to grade 10. As Mr Bradac conceded during his evidence, it's really only grades 2, 3 and 4 that perform well over 95 per cent of Truck Moves' work.

PN3395

It's also quite clear that Truck Moves must have knowledge of the truck required to be moved or relocated because they must send a driver with the necessary licence to perform the task, unless of course the drivers are all in possession of a heavy rigid licence, which basically includes all drivers from grade 5 and down.

PN3396

The evidence provided by Truck Moves in ARTIO's submission does not support a de facto work value claim that drivers engaged by Truck Moves should be paid less because their responsibilities are less. They are required to possess a licence to drive a vehicle on a public road, exactly as is any other driver in one of the other 30‑odd industry sectors listed in paragraph 13 of ARTIO's submissions. The long distance award provision was inserted to cater for exactly the position we're talking about where occasionally, temporarily, a transport company is required to do some long distance work and they can utilise the payment provisions under that award.

PN3397

I think Mr Baroni made some submissions about the grades - the classification structure - within the award; started at grade 10 and worked backwards. Very few transport companies operate in grades 9 and 10. There are some in grade 8 because that's where the heaviest B‑doubles fit, but grades 9 and 10 are basically specialised transport operations who are operating low loaders that carry very heavy equipment and would have oversize plates on their vehicles, and would require pilots to assist them. The evidence from Mr Bradac I think clearly indicates that most of the work - all of the work is done from a grade 5 heavy rigid driver below.

PN3398

Your Honours and Commissioner, the Road Transport and Distribution Award does not need to be varied to insert a CPK provision. That is dealt with by clause 14(c)(i). Throughout this whole exercise, in ARTIO's submission, Truck Moves has done as much as possible to confuse the issues facing this bench. Your task is simply to include another subsector of the industry into the Road Transport and Distribution Award which operates efficiently and effectively across many subsectors, some of which already engage in work that is performed by Truck Moves.

PN3399

There is no need to create a separate schedule or annexures to deal with Truck Moves. Put very simply, they employ truck drivers to drive trucks on public roads; precisely the rationale behind the Road Transport and Distribution Award. In ARTIO's submission, there is no need to have any separate arrangements other than perhaps an ability to enable some phasing in to enable their costs to be transitioned over a couple of years. Although it is noted that Truck Moves cost models or structures were shown to be based around false assumptions under cross‑examination, ARTIO submits that a maximum transitional period of two years would be sufficient in all the circumstances.

PN3400

Truck Moves' work is simply driving trucks and they are not an industry to themselves. They are simply a sector within the road transport industry and can fit within the Road Transport and Distribution Award as it currently operates. If the Commission pleases, that concludes ARTIO's submissions in this matter.

PN3401

SENIOR DEPUTY PRESIDENT HAMBERGER: Thanks very much. You are excused. We just might have a short break.

PN3402

MR RYAN: Thank you, your Honours.

SHORT ADJOURNMENT [12.11 PM]

RESUMED [12.16 PM]

PN3403

SENIOR DEPUTY PRESIDENT HAMBERGER: Thank you, Mr Gibian.

PN3404

MR GIBIAN: Thank you, your Honour. We have got another written document, really just to avoid the need to go to too many transcript references in oral submissions. If it's convenient, I'll propose to address broadly in accordance with the way the document is laid out. Can I just say by way of introduction, as everyone knows the Full Bench has already found that the Road Transport Award should be extended to apply to a business such as Truck Moves involved in a general sense in the relocation.

PN3405

Truck Moves says it has accepted that finding, but now seeks changes to the award which would have the effect of, in effect, having a completely different regime for them compared to every other employer and every other group of employees that is covered by the Road Transport Award. It seeks to exempt itself from critical provisions of the award, including all the rates of pay, changes to the hours of work and overtime arrangements and higher duties provisions, and to insert for the first time a cents per kilometre rate derived - albeit not in full - from the long distance award into the Road Transport and Distribution Awards.

PN3406

In effect, it seeks an entirely different set of conditions for its business in a manner which is quite inconsistent with the broad structure of the modern award system. Essentially the approach that it has taken and it urges upon the Full Bench is to craft exceptions from this modern award to suit its - I won't even say needs, but desires. That is, the desires of one particular business. I note in that respect there was one statement earlier filed - a two‑page statement or something - from a Mr Clayton. Other than that, we're told there are a range of operators involved in the vehicle relocation business. None of them have turned up here to say that the sky will fall in if the Road Transport and Distribution Award applies to them.

PN3407

We have one business which is persistently resistant to reasonable award coverage of their employees and they continue to adopt the approach of fighting reasonable award coverage and really, with respect, saying anything that they think will avoid proper award regulation. The modern award system and the modern award objective dictates to the Commission to establish general industrial standards applying across industry or across occupations and not to establish some kind of exemptions by reference to the stated desires or intentions of one particular business.

PN3408

If Truck Moves says for its business it has some difficulty with the hours of work arrangements or the way the classification structures are precisely drafted, then it can pursue collective bargaining subject to the better off overall test to alter those arrangements if it can make an enterprise agreement with its employees. That is the approach it should be taking, not asking this Commission by reference to one particular business to alter the shape of long‑standing regulation in the Road Transport and Distribution Award.

PN3409

The Full Bench in its decision said that there was an arguable proposition that some provisions might be modified to reflect vehicle relocation. With respect, we at least did not read that as contemplating a wholesale exclusion from crucial provisions of the award, much less exclusion from all the rates of pay provisions contained within the Road Transport and Distribution Award.

PN3410

Can I deal then with the significant areas in which Truck Moves seeks to alter the operation of the award. The first area is obviously with respect to classifications and rates of pay. It proposes a single rate for all employees of $18.83 at present per hour. As is plain from the evidence, that proposition was not one which was founded in any exercise of work value consideration.

PN3411

It was an arbitrarily selected figure which Mr Whitnall quite candidly disclosed was the lowest figure he thought he could get away with really. That is really how the figure was arrived at. He said he knew they would have to pay some more and that was the lowest figure he thought he could get away with. It is obviously a substandard rate of pay which has been proposed. It is, as has been noted below, the lowest grade in the award; below that applicable to a yards person, a vehicle washer or a foot or bicycle courier.

PN3412

In proposing one single rate, even if it were different to the amount of $18.83, it fails to recognise the skills, experience and qualifications necessary to drive different types of vehicles. In that respect it is fundamentally inconsistent with the manner in which driver classifications have been structured for decades and decades. The structures of the classifications in the Road Transport and Distribution Award mirrored in the long distance award reflect that driving different types of vehicles requires a different qualification, a different licence. It requires a different skill level and a different level of responsibility in driving vehicles of different types.

PN3413

The proposition that is being put forward, the rate is itself obviously substandard, but in proposing a single rate it departs fundamentally from the long‑standing arrangements for driver classifications which recognise the different skills, experience and qualifications necessary to drive vehicles of different types. It may be unusual for a large mobile crane to be transported by Truck Moves. It's unclear, but they would have a driver who has the licence and the skills to transport such a vehicle to be paid the same as a person who is transporting, as they say they do from time to time, a usual suburban sedan car.

PN3414

As I say, Mr Whitnall in his evidence accepted that there were different skills and requirements involved in driving vehicles of different types, but the proposition they have put forward refuses to acknowledge that or to give any reward for the skills and qualifications necessary to undertake those different types of work.

PN3415

Can I just say with respect to the casual loading, the original proposal was simply to remove casual loading entirely for weekend work, for reasons which have never been explained. They now want to put a lower casual loading rate of 15 per cent rather than 25 per cent for weekend and public holiday work, Mr Baroni says, because he picked that out from the Road Transport (Long Distance Operations) Award.

PN3416

As I indicated when that issue was raised, I don't precisely know how the mathematics of 15 per cent was worked out, but the casual loading provision - as is common in the Road Transport and Distribution Award at clause 12.5(d) - provides that the casual employees not receive the loading for overtime work, as is common. The kilometre rates and the hourly driving rates in the long distance award incorporate a component, as is made clear in the provision to which Mr Ryan referred.

PN3417

Clause 13.5(b) of the long distance award includes an overtime component in the rate itself already and that is the explanation for having a lower casual loading rate for driving work, because for driving work employees under the long distance award are required to be paid either the cents per kilometre or the hourly driving method which already accrues an overtime component for each hour worked. For that reason driving work is compensated by a lower causal loading. Other work under the long distance award is still, for casual employees, compensated by 25 per cent loading and there would be no basis for that proposition to be made.

PN3418

With respect to hours of work, the proposal is to increase from eight to 10 hours - well, 10 or 12 depending on whether it's local or what they've referred to as long distance work. It's said that that is necessary because of Truck Moves' pattern of work. With respect, that would be one company saying it wishes to change the hours arrangements would be entirely insufficient basis upon which the hours arrangements would be changed in any event, but as I've noted in paragraph 9 of the submission, the evidence didn't even suggest that.

PN3419

I mean, Mr Whitnall's evidence was that usually the employees worked eight hours a day, sometimes they worked more. The usual pattern is entirely consistent with the eight ordinary hours. If they worked more, they would be paid overtime in the manner that other employees under this and other awards would be. Again, with respect, this proposal is simply an attempt to avoid overtime liability arising in its business. If it can extend to 10 and 12 hours, then it wouldn't in a practical sense ever have to pay overtime and that is its obvious objective.

PN3420

Mr Whitnall also gave evidence that if they had to pay overtime over eight hours, then they would only allocate work for eight hours. Well, if that's the case then they can structure their business in that way if that's a practical means for them to operate. If employees work eight hours, then they have the rest of the time for their family or other life and no overtime entitlement would arise. I note in that respect that they don't seek to change the span of hours. It's not suggested that the span of hours is somewhat inconsistent with the operation of their business. They just want to lengthen the number of ordinary hours they can direct employees to work without paying overtime.

PN3421

With respect to the removal of the obligation to set starting and finishing times, we really don't know what the basis of that suggestion is; although I do note in that respect that they say all their employees are currently casual in any event, in which case it would seem to be not an issue, but - - -

PN3422

SENIOR DEPUTY PRESIDENT HAMBERGER: Does that clause apply to casuals or not?

PN3423

MR GIBIAN: I was looking - - -

PN3424

SENIOR DEPUTY PRESIDENT HAMBERGER: It didn't appear not to have - - -

PN3425

MR GIBIAN: It doesn't actually say it's excluded.

PN3426

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN3427

MR GIBIAN: But it's difficult to see in a practical sense how it would apply to a casual. I couldn't detect a provision which excluded its operation with respect to casual employees - - -

PN3428

SENIOR DEPUTY PRESIDENT HAMBERGER: No. I mean, you can employ people by the day as a casual.

PN3429

MR GIBIAN: Indeed.

PN3430

SENIOR DEPUTY PRESIDENT HAMBERGER: So it's a bit hard to know what a regular start time would be, given that it can vary - - -

PN3431

MR GIBIAN: Indeed.

PN3432

SENIOR DEPUTY PRESIDENT HAMBERGER: Well, presumably you can vary it day to day.

PN3433

MR GIBIAN: I would assume it doesn't apply to casuals, I would have to say, but I'm not sure it says as much.

PN3434

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN3435

MR GIBIAN: I mean, it refers to one week's notice of a variation. I suppose maybe to the extent that there are regular casuals, as it were, who have regularity, then they should be given that notice. With respect to the higher duties provisions, there is an endeavour to exempt entirely from clause 19, which initially at least seems somewhat redundant if they only have one rate of pay, anyway. It seems to be acknowledged that drivers employed in the vehicle relocation business may be required from time to time at least to transport freight or goods, in which case it's said that they would be paid for that work at the ordinary rates that apply under clauses 15.1 and 15.2.

PN3436

They then seek to change even in that situation the operation of clause 19 by requiring not that the person be paid the highest rate that is applicable for the work they do on a particular day, but that they be paid a higher rate only for the majority of their work on a particular day that involved the transportation of goods. Again, that's simply an erosion of the long‑standing conditions under the Road Transport and Distribution Awards which is not explained other than by a desire to not pay its employees the reasonable safety net conditions that that award prescribes.

PN3437

In a general sense the opposition or the concern which is asserted with respect to the operation of clause 19 of the award is that it is said that Truck Moves' employees may drive a number of different types of vehicles on the same day. The short answer to that is that that is precisely what clause 19 is there for.

PN3438

Any practical difficulty is really overcome by the fact that Truck Moves - as it has said in its evidence and I've set out the references - is able to allocate work to its employees in the manner which it chooses consistent with whatever is necessary for the practical operation of it business. If it has jobs moving vehicles which would put an employee within grade 4 or grade 5 or grade 6 rather than grade 3 on a particular day, it can allocate all that work to one driver if it wishes or if that is practical for it to do so. Those are entirely matters within its control.

PN3439

With respect to the classifications more generally, Mr Baroni said that some difficulty arose in assigning a particular grade to an employee as a general matter if that employee would, throughout their work, be driving different types of vehicles from time to time. That is not an issue with respect to the application of the Road Transport and Distribution Award for the simple reason that the award itself does not require an employer to classify an employee in a general way. The award, as many other awards do, does not say when a person commences employment that the employer is required to assign a particular classification to the employee. They are paid from time to time in accordance with the grade of work that they undertake.

PN3440

Now, I accept Mr DeClase and Mr Cassar said, look, they had a particular practice. I think many employers do. That is, an employee will be given a general classification and no doubt as a matter of employment contract the employer can agree to pay in a particular way, but it's not actually a requirement that arises from the award itself. I think the union had given consideration to seeking such a provision be inserted into the award because of the difficulty that that type of variability can create to its employees.

PN3441

That was opposed by employer groups and I think the union didn't ultimately press it as part of this review. It is a concern the union has in some sense with the award, but that is the provision as it currently exists and, frankly, as it has historically existed, as well. As I say, that simply means that the concern that Mr Baroni raised is not one which gives rise to any difficulty in the application of the award to a business such as Truck Moves undertakes.

PN3442

With respect to - and I think this is the final substantive area of modification that is sought to the award provisions - the insertion of a long distance provision - - -

PN3443

SENIOR DEPUTY PRESIDENT HAMBERGER: Do you agree with Mr Ryan on this; his interpretation?

PN3444

MR GIBIAN: I can see where Mr Ryan is coming from with it.

PN3445

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, I see where he's coming from, but I'm not sure he is right. That's why I asked. He's not here to defend himself any more, but - - -

PN3446

MR GIBIAN: I mean, look, I think the difficulty with it is the words "temporarily transferred to duties covered by the award". The long distance award applies to employers in the private transport industry who engage in long distance operations. In a sense, unlike other awards where the sort of business of the employer, as it were - its business has to be transport, but it then falls within the long distance award to the extent that it has long distance operations, even if it's only once. It's not as a general matter. Obviously it has been found and we didn't ultimately contest that - - -

PN3447

SENIOR DEPUTY PRESIDENT HAMBERGER: Well, one of the problems if you look at the definition of "long distance operation" in the long distance operations award, it is -

PN3448

any interstate operation...and the operation involves a vehicle moving livestock or materials.

PN3449

MR GIBIAN: Yes, I understand that.

PN3450

SENIOR DEPUTY PRESIDENT HAMBERGER: Also -

PN3451

where the distance travelled exceeds 500 kilometres and the operation involves a vehicle moving livestock or materials.

PN3452

Of course the whole point is we're talking about usually, anyway, vehicles that aren't doing those things.

PN3453

MR GIBIAN: Yes. Look, I accept that's a difficult issue by way of interpretation and we didn't make that submission.

PN3454

SENIOR DEPUTY PRESIDENT HAMBERGER: No. I was just curious to see whether you agreed.

PN3455

MR GIBIAN: I see where Mr Ryan is coming from. In terms of the long distance operation generally, we have made application for employers such as Truck Moves to be covered by the Road Transport and Distribution Award. We think that's the appropriate step. If they thought that they wanted a long distance operation provision, then really they should apply for the long distance operations award to be extended to apply to this business, as well, and it should apply in its full entirety, not some hybrid version that - hybrid, inferior and substandard, we would say, version of it which has been sought here. They haven't done that. I mean, they've known since the middle of last year that they're going to be covered by this award if they thought that they wanted to pay cents per kilometre.

PN3456

The reason why we did that is the present situation is that they're required to pay hourly rates, albeit they pay not a cent more than the federal minimum wage. They are required to pay hourly rates, including for long distance work. It's not clear that this work, even where it's long distance in the sense of exceeding 500 kilometres, is long distance operations as the long distance operations is intended to apply to. Your Honour the presiding member had the definition of a long distance operation. You will see it refers to -

PN3457

any interstate operation or any return journey where the distance travelled exceeds 500 kilometres.

PN3458

It's talking about return journeys. It's not talking about a situation in which a person drives from one place to another place and then gets the plane back, obviously enough. I note the definition that Truck Moves has suggested seeks to ally that issue, so it has sought to include a definition of a long distance trip at point 2 on the first page of its draft determination simply by reference to a trip or series of trips the total of which is 500 kilometres. That's not what the long distance operations award applies to. It applies to the transportation of raw and other materials on return trips of particular duration. That is what it applies to.

PN3459

Here they want to have a hybrid situation. They don't do return journeys transporting material - or that's what they say - which would fall within the long distance operations award or of that type. They are going from one point delivering a vehicle to another location. They want to pay that journey as a cents per kilometre rate - albeit inferior to the long distance award - but then they want to revert to an hourly rate for the plane flight back. We think really that this work properly fits within the Road Transport and Distribution Award.

PN3460

COMMISSIONER LEE: Just remind me, was there any findings in respect of the Federal Court proceedings which is the genesis of this whole - that is, findings on the application of the long distance award.

PN3461

MR GIBIAN: There was a declaration that the long distance award did not apply.

PN3462

COMMISSIONER LEE: Right.

PN3463

MR GIBIAN: We did not actually contend otherwise in the Federal Court proceeding.

PN3464

COMMISSIONER LEE: Yes, right.

PN3465

MR GIBIAN: But they did seek and the declaration was made, albeit we didn't say anything about it.

PN3466

COMMISSIONER LEE: You didn't say anything about that, yes.

PN3467

MR GIBIAN: In relation to the long distance operations - but my recollection at least, and I'm reasonably confident, is that the Court made a declaration in relation to both awards. As I say, the primary position we advance is that the Road Transport and Distribution Award is the appropriate award to apply and there is no reason for an adjustment simply because sometimes they move a vehicle from Melbourne to Sydney or whatever it might be.

PN3468

That's not actually the type of trip that the long distance operations award is intended to apply to and, as I say, the existing situation where what is happening is a vehicle being transported and delivered to another location without a return trip, empty or otherwise, the present arrangement is that they pay on an hourly basis. I think I've had some debates with Mr Whitnall as to whether they actually pay the federal minimum wage with respect to their long distance trips, but they insist they do and are able to calculate and pay hourly rates for that work.

PN3469

There would certainly be no basis upon which the rates that are now proposed for long distance operations would be made. As Mr Ryan pointed out, the cents per kilometre rates in the long distance award are calculated in quite a different way and the proposal that Truck Moves puts forward is substantially inferior, for reasons which are not explained. That is, the cents per kilometre rate is worked out by multiplying the hourly rate by 1.3 and 1.2. They just want to multiply it once by 1.1 and with a different divisor, 75 rather than 82.

PN3470

They're working out a substantially lower cents per kilometre rate, for reasons which are entirely unexplained. I didn't discern any explanation as to how or why there would be a lower compensation for overtime and shift loadings appropriate, much less that the industry disability allowance would not apply, which is really there to compensate for the unsocial hours and the like which are necessarily involved in driving long distances.

PN3471

They are not even satisfied with translating their substandard $18.83 into a cents per kilometre rate. They want to chip away further by a lower compensation for shift penalties and overtime, and removing the industry disability allowance which applies to long distance operations. With respect, that provision would not be made at all. If the Full Bench thought there ought be the option of a cents per kilometre rate for longer trips, then the proper thing would be for the long distance award to be varied to apply, as well. That's not the approach we would suggest is appropriate, but that would be the only way in which that could properly be done, with respect.

PN3472

Those are the major areas of modification which are sought. The upshot of the TWU's submissions is essentially the same as ARTIO's. That is, we don't accept there is any need for some specific schedule to apply with respect to vehicle relocation. We think the award can quite properly apply in its full force. We have accepted that there would be - if the Commission were to agree with us on that - some type of transitional provision. I think we have said, at most, two years.

PN3473

We do note and I do repeat in that respect that this is not an issue that arose today. The Federal Circuit Court found in 2014 that a business such as this was covered by the Road Transport and Distribution Award. Now, they subsequently got a different finding out of the Federal Court, within two weeks of which the TWU applied as part of the award review process to - "Well, if that's the law, we think it's not an appropriate regulation and the award should be varied to be extended to cover these kind of operations", but the issue that has been plainly front and centre since at least 2014 - - -

PN3474

SENIOR DEPUTY PRESIDENT HAMBERGER: But it's only really since our decision saying that the award should be varied to cover them.

PN3475

MR GIBIAN: I accept that to some degree. Well, there was a period of time when the law of the land - between 2014 and 2016 where the law of the land was that it did apply. Courts came to a different view. These things happen, of course.

PN3476

DEPUTY PRESIDENT SAMS: I think the point is it wasn't zero.

PN3477

MR GIBIAN: Indeed, and they have been alive to this. If they have not been planning as part of their business that the award would apply or may apply at some time, then they can't complain with too much force. It's not something that has been thrust upon them with great expedition without warning. It's something that has been an issue since 2014 at least, if not before.

PN3478

Those proceedings arose because there were complaints to the Fair Work Ombudsman prior to that in relation to the operations of this business and others, so it's not as if there has been years leading up to this point, with respect, and if they have not taken steps to count against the contingency that they would have to pay proper award standards, then they cannot complain with too great a force.

PN3479

The other issues I've intended to deal with are in response to matters which are relied upon by Truck Moves. In relation to the work of drivers involving vehicle relocation work, we essentially agree with what Mr Ryan has said, that the core task is essentially the same, but can I just embellish that a little. As I've said in paragraph 18 of the submission on page 7, the first point of difficulty with the submissions that Truck Moves advances in this respect is that they infer or assume that there is a single type of work which is done by employees covered by the Road Transport and Distribution Award.

PN3480

One saw that from Mr Baroni's cross‑examination and submissions today. There was a continued attempt to say, "Well, it's a bit easier, isn't it, to drive a cab chassis from the wharf than it is to drive a fully laden B‑double." That assumes that all the work under the Road Transport Award is capable of being described in a single way, being driving a B‑double from Sydney to Perth.

PN3481

As I've noted and ARTIO noted in its submissions, as well, there is a broad range of roles and occupations and industries which involve the core task of driving on the public roads, but are very varied in the circumstance and the demands of the work involved. As I say, from livestock and dairy and agricultural products to couriers and partial transport car carriers, refrigerated transport, fuel and other dangerous goods, container cartage, tip trucks, freight forwarding and the like.

PN3482

No doubt the particular demands from day to day on workers involved in those various different types of operations have some differences attached to them, but modern awards operate by setting a rate of pay appropriate for that work and this is the award that sets the base rate for professional driving work. To say that there are some differences between what a worker does when they are transporting an unregistered cab chassis to some other types of transport workers, simply doesn't advance the argument at all.

PN3483

Can I add to that by just noting that the rates of pay are the base rates for the driving work. The award also provides additional payments by way of allowances for particular types of work where there is seen to be additional either skill or responsibility or difficulty or unpleasantness involved and they are dealt with in clause 16 of the Road Transport and Distribution Award, which provides for additional payments to be made over and above the base rates in various circumstances; excessive load, width, furniture carting, livestock carting, sanitary vehicles, garbage collection, transport of black carbon, offensive material, dirty material, tar, money handling, dangerous goods, et cetera.

PN3484

Where there are additional difficulties and the like above the basic driving task, it's not that people get paid less if they don't have to load the vehicle or they don't have to do something else; in certain circumstances they're paid more. To say that it's more difficult to drive a dangerous goods vehicle or there is some greater degree of responsibility is to some extent right, but what the award does is say, well, you get more. You get an extra payment in that situation.

PN3485

To simply say, well, there are some differences in the work performed doesn't grapple with the fact that the award already covers a wide array of work, but the historical way in which the rates of pay have been set have been to attach to the core driving task by reference to type of vehicle that is involved. As I say, the core driving task is, with respect, essentially the same. I note in paragraph 18(c) that Truck Moves recruits and advertises to attract persons with experience driving in the road transport industry.

PN3486

Can I add a reference in that respect. Some documents were marked as TWU14 in the proceedings last year, I think, which were a vehicle delivery driver employment checklist which Truck Moves utilises when recruiting drivers, which requires the driver to list whether they had experience operating various types of vehicles; rigid, tautliner, semi‑trailers, D‑doubles, road trains, different types of gearboxes, tankers and the like. As I say, they advertise for persons with professional driving experience, understandably enough. Those are the skills and experience which are necessary and appropriate for the type of work being undertaken.

PN3487

In relation to the training and the like, I've set out the evidence that Mr Bradac gave in that respect; that drivers are trained in matters such as fatigue management, heavy vehicle relation, safe operations of vehicles, fuelling/refuelling, et cetera, vehicle checks, safe driving practices and the like. Some drivers in other circumstances might do other types of training and others won't.

PN3488

None of that is to suggest that there be some lower rate of pay on some individual workplace basis - should be incorporated into the award. The evidence of the TWU's witnesses also made clear that whilst there are differences, it is overly simplistic to say that the driver just walks up, gets in the truck and starts driving. There are other tasks attached to the work involved.

PN3489

The primary difference which is asserted - understandably enough - is that in other circumstances drivers may be involved in loading or unloading, which won't be the case here at least generally speaking. As I think Mr Baroni acknowledged, that's not always - in other circumstances, drivers are not involved in loading or unloading either and it has been asserted more commonly now than perhaps in the past, which is perhaps a matter I can't comment upon.

PN3490

If one is engaging in container transport or transporting bulk goods which are loaded off a conveyor belt at the wharf, the driver is not involved in the loading or unloading in those situations either, but they don't get a lower rate of pay. Maybe their hours are shorter - they don't have to work during that period or something to that effect - but they don't get some lower rate of pay based upon that variation. That is, in short, what is suggested.

PN3491

I have then dealt with the question of the application of the classifications. As I apprehended the submissions today, the primary issue that was raised in relation to the classifications that Mr Baroni raised was the asserted difficulty in assigning a general classification to employees at the outset of their employment in circumstances in which they might drive different types of vehicles. I've addressed that issue.

PN3492

Mr Bradac did ultimately raise an issue about whether or not they could sensibly apply the classifications because of some difficulty in identifying the gross vehicle mass of the vehicle. Mr Baroni didn't advance that today, at least with any force. I've noted in the written submission that there has been some changeability in that respect. In the Federal Court proceedings, Truck Moves expressly disavowed any suggestion that was an issue which created any difficulty for them.

PN3493

I have then addressed the issues - the evidence that was given in that respect which involved a degree of changeability, with respect, in Mr Bradac's evidence; certainly initial acceptance that the regulatory environment required the insertion of information which would allow that to be readily determined. In any event, it's necessary to be able to be ascertained for the purposes of ensuring that the person with appropriate licence drives the vehicle.

PN3494

In any event, as I ultimately point out at paragraph 25, there is no real difficulty in applying the classifications in a very straightforward way. If one has a prime mover without any attachment, it's clearly a rigid vehicle. One can count the axles and it doesn't take any great difficulty in ascertaining the gross vehicle mass. They would be, generally speaking, grade 4 or perhaps grade 3 if they were small vehicles. Ultimately if there were some difficulty in that respect, it ought be addressed by inserting new descriptions of documents in the various grades, as has been done from time to time as new vehicles are introduced.

PN3495

Finally, I've dealt with the financial impact issue. In short, we say three things about that. The first is that there will no doubt be some additional cost to Truck Moves' business because it is currently paying not a cent above the federal minimum wage; a rate which we say is obviously substandard for the work that its employees are undertaking.

PN3496

However, evidence that there will be some increase and additional cost would not provide the basis for the Commission to set some lower rate than is a fair and appropriate rate of pay for a particular class of work. One employer coming and saying, "We can't afford to pay", is not a basis upon which a modern award wage would be set, with respect. At its highest, the evidence about financial impact would support some kind of transitional arrangement which we've accepted, albeit not embracing the extreme duration that is proposed by Truck Moves.

PN3497

The second observation we make in relation to evidence of financial impact is that the only evidence we have of financial impact is upon Truck Moves, not upon any other business. There is no basis upon which the Full Bench would infer that the same impact or the same difficulty would arise in other businesses in circumstances in which no such businesses have come forward to suggest any difficulty.

PN3498

Thirdly, there has been an assertion of some kind of competitive disadvantage arising by reason of the application of the Road Transport and Distribution Award. The submission is misconceived. Firstly, any other competitors who operate in the same or a comparable way would be covered by the same award provision and no competitive disadvantage experienced by Truck Moves in that respect.

PN3499

So far as alternative modes of transporting vehicles, car carriers or companies engaging their own drivers to move vehicles or, it was suggested, coastal shipping, all of those industries are covered by modern awards which apply to the employees. They have to pay what the Commission has determined are appropriate award wages and any competitive disadvantage that arises for Truck Moves as against those different types of operators, arises because of factors other than that they will now be required to comply with reasonable award standard.

PN3500

I have, finally, in that respect observed that the evidence that was put forward particularly by Mr Bradac very substantially overstated the economic or financial impact of the application of the award. The calculations, particularly in the confidential statement that Mr Bradac prepared, were wrong and based upon assumptions which sought to widely exaggerate the effect. In particular, at paragraphs 15 and 16 of his confidential statement there was an assertion that there was an increase in wage cost of 51.9 per cent - or would be, sorry, an increase in award costs of 51.9 per cent.

PN3501

That was based upon a number of quite erroneous assumptions, the primary one being that each driver always worked a 12‑hour shift and one only got to a high percentage increase by incorporating an overtime component in circumstances in which the company pays no overtime no matter how long someone works at present. The assumption of a 12‑hour day was inconsistent with the evidence.

PN3502

Mr Whitnall said generally they worked eight‑hour days and he said more particularly that if there was a requirement to pay overtime, they wouldn't allocate work beyond eight hours, in which case no overtime liability would arise. If they are able to do that, well, that's consistent with the award and they can avoid overtime entitlements in that way.

PN3503

The difference in base wages for the grade 4m - which was utilised for those calculations - was 11.75 per cent rather than 51 per cent, to put things in perspective. To the extent the members of the bench say, well, an 11 or 12 per cent increase is still a substantial increase, it is, but it's a substantial increase for this business because it is paying the federal minimum wage and no more.

PN3504

These are not high award rates that we are talking about in the Road Transport and Distribution Award. They are basic safety net rates which have been determined over a long time, as appropriate, for professional driving work. There is an increase of the percentage that there is because of the approach that this business in particular - and not necessarily others - have adopted to the payment of their employees to date.

PN3505

I have also noted that the table in paragraph 16 of the confidential statement very substantially overstates increases in on‑costs, payroll taxes, increased by 89 per cent, for reasons which are entirely unclear. There is a workers compensation increase that is calculated at 593 per cent based upon Mr Bradac's asserted belief that their workers compensation payments would go up, albeit not having talked to any insurance company about this, on the basis that in some way the award application would change the nature of their business which is, with respect, a fanciful and bordering on ridiculous proposition.

PN3506

As I say, there will be some financial costs, no doubt. That is a factor though in relation to which the Full Bench only has evidence for Truck Moves and in relation to which - or the issue would not support anything other than some transitional provision at best. It's not a basis upon which the Commission would assess a rate of pay other than that which is reasonable and appropriate, and those other rates which have been set in the award developed over many years. Unless there is anything further - - -

PN3507

SENIOR DEPUTY PRESIDENT HAMBERGER: No. Thanks very much, Mr Gibian.

PN3508

MR BARONI: I have a few matters in reply, your Honour. The first, Mr Gibian suggested that the difficulty that arose in identifying vehicles in terms of at the wharf, for example, so that one could allocate a particular grade to an employee, Mr Gibian suggested in paragraph 21 of his further submissions that that was abandoned. I'm not sure that that is the right terminology.

PN3509

I think the issue was that it wasn't pressed because, as I understand it, it wasn't relevant to the proceedings in the Federal Court and I can put it no higher than that. I'm not sure that it was necessarily abandoned. It is a live issue for the reasons I've already articulated, but I don't need to say anything more about that. That's the first issue.

PN3510

The second issue is in relation to Mr Gibian's submission about clause 12; that is, the types of employment where he suggests that there is no requirement to allocate a grade. That's not strictly true, because if one looks at clause 12.4 dealing with part‑timers, 12.4(b)(ii) requires that a classification be allocated, so that immediately causes a problem. It's no answer to say that my client doesn't have part‑timers at the moment. The answer will be that in 12 months' time we will have a range of different people working under different arrangements because of the function of the award.

PN3511

SENIOR DEPUTY PRESIDENT HAMBERGER: It's possible, yes.

PN3512

MR BARONI: It's possible, but - - -

PN3513

SENIOR DEPUTY PRESIDENT HAMBERGER: It depends what the hours are currently and whether people want to convert and so on, but, yes, the - - -

PN3514

MR BARONI: Indeed, but again it may open up to rather than having casuals that you might have part‑timers, your Honour.

PN3515

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN3516

MR BARONI: So it does raise a problem.

PN3517

SENIOR DEPUTY PRESIDENT HAMBERGER: Clearly the award - leave aside the people you're representing - envisages that drivers might be paid at different classification rates at different times. I don't see that it would be difficult to say, well, you'll be appointed as a driver - even if you're a part‑timer, you know, you'll be classified as a 3 or a 4 or something like that; that you would get paid actually on the basis of the vehicle you were driving that way.

PN3518

MR BARONI: That might be the case where there is - - -

PN3519

SENIOR DEPUTY PRESIDENT HAMBERGER: It's not really particularly different for Truck Moves as for any other company in this industry.

PN3520

MR BARONI: Yes and no, your Honour. There are two things I would say about that. The first is that (a) as Mr Gibian pointed out that is not the practice in the industry, but I'm not entirely sure that that is necessarily of any great moment. More importantly, two things arise from that. Even if you are able to determine with some ease the sort of vehicle - and again I use the wharf as the example because that's the most complicated in a sense - you'll only determine it at the time you go down there to pick it up, because there is no other information they've provided.

PN3521

SENIOR DEPUTY PRESIDENT HAMBERGER: Really the company doesn't know what vehicles there are?

PN3522

MR BARONI: That's the evidence.

PN3523

SENIOR DEPUTY PRESIDENT HAMBERGER: It wouldn't be difficult to find out, I wouldn't think.

PN3524

MR BARONI: Well, that's the evidence, that they can't find out.

PN3525

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay.

PN3526

MR GIBIAN: Someone has to know what's coming.

PN3527

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay, yes.

PN3528

MR BARONI: We know there are a bunch of trucks coming. That's what we know. That's the evidence as I understand it. What we know is there are a bunch of different configurations of cab chassis to be picked up from the wharf. They may be all one particular classification or they'll be multiple classifications. Who knows? Again, you'll know when you get down there, sure. Whether they're plated or not, you can work it out. You can count the axles and you can get some guide, but that's when you know.

PN3529

That's the difficulty with this, because again you need to get out of the thinking that this is the transport industry; it's something different. It's in the transport industry now, as I said, we've not quibbling with that, but it needs to be catered for in a particular different way. In any event, because of the vast changing of vehicles that these drivers take on on a day‑to‑day basis, you will be chopping and changing between grades consistently on a day‑to‑day basis.

PN3530

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, but it seems to be there is only probably one, two or three grades that are going to be generally relevant. I mean, it's going to be exceptional, but it won't be in - basically I think a 3 or a 4, isn't it?

PN3531

MR BARONI: We don't accept that, but even if it is 2, 3 and 4, in a week - - -

PN3532

SENIOR DEPUTY PRESIDENT HAMBERGER: Well, 3 and 4, yes.

PN3533

MR BARONI: - - - you're going to be hopping between three grades. That can't be an acceptable burden for a business to carry. If I do appoint them to a particular grade - so I appoint them to a grade 4 or a grade 3 and then I carry a lesser vehicle; well, I'm stuck with that grade, so that's not the answer either. It's not going to be something that's going to be resolved by appointing somebody to a particular grade and that is a live issue.

PN3534

In clause 9(b) there is not an answer; the higher functions clause. That's not an answer to it, because, as I said, what you're going to be doing is hopping around between classifications on a regular basis - because they do. They pick up different vehicles every day. Today it might be wharf stuff which may be whatever it is; tomorrow it will be something completely different and there will be multiple - you have occasions where you've got multiple different trucks on the one day.

PN3535

You might have a morning's worth of - hypothetically. No witness goes directly to this - movements off the wharf and then an afternoon worth of second-hand trucks which need to be delivered to a sale yard at different locations around metropolitan Sydney. Not that that is an issue, but the trucks won't necessarily be all the same. We say that it is a live issue and there needs to be a proper consideration of that. As I said, that lends to the argument why there should be a singular particular grade.

PN3536

Mr Ryan - the thrust of his submissions seemed to be the fact that you're on a public road. That's the vital submission.

PN3537

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN3538

MR BARONI: I'm not sure that it takes this anywhere, because it's not the "driving on a public roads award", it's the "distribution of freight award". That's what it is, so it has got all to do with that industry, not whether you're driving on a public road. The award was never created for the purpose of regulating or paying people to drive on the public road. The award historically was created to pay people carting freight. That's why it exists, not because you're driving on a public road. That argument takes us nowhere.

PN3539

Mr Ryan made a submission that, well, if you're driving a prime mover with no trailer, it would be a grade 4. With respect, nobody would employ anybody to drive a prime mover on a grade 4 and nothing else. The prime mover has to tow something. You would never have an employee as a matter of practice engaged as a grade 4 to drive a prime mover with no trailer. Happy days, because they wouldn't be doing anything other than driving a truck around.

PN3540

Mr Ryan's submission was that if you're not driving a prime mover that has a trailer attached to it, then you would be a grade 4 based on the configurations because it has got three axles. I assume that's the proposition he was making. Why would anybody employ somebody to simply drive a prime mover with no trailer?

PN3541

SENIOR DEPUTY PRESIDENT HAMBERGER: I'm a bit lost at what you're trying to say. I mean, you do.

PN3542

MR BARONI: No, but - - -

PN3543

SENIOR DEPUTY PRESIDENT HAMBERGER: Don't you, you know, to move them - to get them off the wharf to the - - -

PN3544

MR BARONI: Go back a step. This gets back to the submission I made earlier, your Honour, about understanding the operation of the award in context. Yes, we do.

PN3545

SENIOR DEPUTY PRESIDENT HAMBERGER: Right.

PN3546

MR BARONI: But we weren't going it in the transport industry.

PN3547

SENIOR DEPUTY PRESIDENT HAMBERGER: I understand that.

PN3548

MR BARONI: Put aside what we do. Mr Ryan's submission is that if you drive a prime mover without a trailer, you're a grade 4.

PN3549

SENIOR DEPUTY PRESIDENT HAMBERGER: Right.

PN3550

MR BARONI: Nobody would be paid a grade 4 in the transport industry to drive a prime mover and nothing else. That's the submission he's making. In other words, the submission is that, well, you can get over the problem that Truck Moves put forward by simply saying if you drive a prime mover with no trailer, you would be a grade 4. You would never employ anybody in the transport industry to simply drive a prime mover. If you're driving a prime mover, you would be a grade 6 or 7 under the award because the utility of a prime mover without a trailer is useless.

PN3551

Again it goes back to the historical context of the award, your Honour. That submission simply says, well, you sweep the history of the award under the carpet, have no regard to it, it has got three axles and it's a rigid, then you pay them a grade 4, but that's not the way the award operates. There wouldn't be one person in this country that is paid a grade 4 to drive a prime mover. It simply doesn't arise because you drive a prime mover because you're towing something and you're carrying goods. That is how the transport industry - - -

PN3552

SENIOR DEPUTY PRESIDENT HAMBERGER: Are you saying that if the award - you know, assuming your client is covered by the award and they were driving a prime mover - - -

PN3553

MR BARONI: Well, it is covered by the award.

PN3554

SENIOR DEPUTY PRESIDENT HAMBERGER: - - - that didn't have a trailer attached - I mean, if they had the trailer attached, its grade 6.

PN3555

MR BARONI: Grade 5 or 6, yes.

PN3556

SENIOR DEPUTY PRESIDENT HAMBERGER: But if they don't have a heavy trailer attached, they wouldn't have to pay a 6. You're not suggesting they have to pay a 6, are you?

PN3557

MR BARONI: No.

PN3558

SENIOR DEPUTY PRESIDENT HAMBERGER: Right.

PN3559

MR BARONI: But what I'm suggesting is it's not as simple as simply saying that it hasn't got a trailer, so then I'm paying a grade 4, because then that would mean that every time an employee is not towing something, they should get paid something less.

PN3560

COMMISSIONER LEE: Could I just say I didn't understand - I think this proposition is being overworked - Mr Ryan to be saying anything other than from time to time in the contemporary environment transport companies who may well be engaged in largely transporting goods around will have drivers who will drive just a prime mover from place to place; perhaps to pick up an empty trailer or such thing. The reality is that that driver will not be paid anything other than in accordance with the Road Transport Award, leaving aside that they might be covered by an enterprise agreement - but assuming that they're award covered.

PN3561

MR BARONI: Which will be the relevant grade as if - a combination grade.

PN3562

COMMISSIONER LEE: Yes.

PN3563

MR BARONI: So they won't get paid a grade 4, because there's no purpose to driving a semi‑trailer - I withdraw that. There is no purpose, Commissioner - - -

PN3564

COMMISSIONER LEE: I don't want to debate what rate they will be paid. They will be paid in accordance with the award. The fact that they're not carting goods at a particular time because that's not necessary as part of their role - - -

PN3565

MR BARONI: Yes.

PN3566

COMMISSIONER LEE: - - - they will still be capable of being classified and paid in accordance with the award. It's not that there is no capacity for the award to cover them. I just thought the proposition put by Mr Ryan is a fairly straightforward one.

PN3567

MR BARONI: Again, it might be a straightforward one if you don't have any regard to the proper operation of the award.

PN3568

COMMISSIONER LEE: Yes, I heard that submission. I'm just putting to you what I understood Mr Ryan was saying.

PN3569

MR BARONI: Again, that submission should simply be rejected because you wouldn't have that scenario.

PN3570

COMMISSIONER LEE: Okay.

PN3571

MR BARONI: If you're a driver who drives a prime mover, you would be engaged as a driver that drives an articulated vehicle on the higher grade and you would stay there forever and a day. You wouldn't drop down when you're not carting goods or when you're not towing a trailer. You're a grade 6 or 7 or whatever you would be. You don't end up getting a lower rate of pay when you're not towing a trailer. That wouldn't happen. That's why I say that submission is of no moment. It takes us nowhere.

PN3572

In relation to the submission about clause 14.2(c), I think Mr Gibian was a bit coy about it but it won't operate because you've still got to be bound or covered by that award. It has no ability to do what Mr Ryan suggests it does. In relation to that issue about the grade of the award - and it flows into a question your Honour had asked me earlier about work value and what the rates of pay, in effect, remunerated somebody for. We've dealt with it in our submissions of 1 March 2017, your Honour, which made reference to one of the decisions in my submissions of 24 November.

PN3573

I'm not sure if your Honours and Commissioner have that handy, but the relevant parts of the 1 March submissions was paragraph 90 where it makes reference to the decision of Austin C, which was in relation to the Transport Workers (General) Award. It was a decision in 1959; Transport Workers Union of Australia v A1 Carrying Co and Ors, 20 February 1959. The submissions make plain there, commencing at paragraph 90 through to 91 and 92 and over the top of the page, that it was an application made by the union to increase rates of pay.

PN3574

It was, in essence, a work value case that argued that given certain skills, et cetera, the rates of pay should be increased. Importantly, at the bottom there at paragraph 92, the submissions make reference to a passage in that a decision and I quote as follows:

PN3575

One cannot lightly dismiss the value of an employee to his employer in the transport industry, notwithstanding the type of work on which he is engaged. Some make deliveries to suburban homes, others to stores and the like. Heavy haulage from wharves and manufacturing points all entail more completely than most other industries, intermittent individual representation between the owner of the vehicle and the parties whose goods are being carried -

PN3576

and then in bold:

PN3577

The transport industry driver requires certain skilled qualities. I extended the definition of skills to not only the fact that the driver's licences entails a person to drive, but to work with mechanical aids, manual loading, efficiency operations of prime movers, then pulling trailers.

PN3578

The point of that submission was again to put in context the history of the award. The rates originally were set to take into account certain skills and applications of manual labour that were relevant to the transport industry. That's why we say part of the rationale and the submission we make about the rates is that the rates in the current award have historically incorporated into them certain amounts - or values, if I can put it that way, recognising what was relevant to the transport industry; that is, the carrying of freight. That's exactly what that passage said.

PN3579

Now, it was 1959, I concede that, but the rates have been compounding ever since for the same reasons, albeit under different statutory regimes and premises for varying rates; but the fundamental underpinning was that the rates had incorporated into them and recognised certain value propositions that were relevant only to the freight industry, not to the relocation of vehicles.

PN3580

That's simply the point that I was making in that exchange I had with you earlier in my submissions, so that's a relevant consideration and that's part of the answer why the rate of pay that my client seeks should be distinguished from the rates of pay which are in the current freight award, if I can use that phrase. That's one of the distinguishing factors, because they are different.

PN3581

I just have a couple of other issues. Mr Gibian, I think, raised the issue about clause 25; the exemption from start times. Now, that may or may not apply to casuals. It probably does, in my submission, in certain circumstances but in any event, as I said earlier, what will follow as night follows day, my client will be faced in part with a permanent workforce at some point in time and it will become relevant in those circumstances.

PN3582

I dealt with clause 19 and I've said that's just simply not going to be an answer to the problem of vehicle identification. Even putting the TWU's submission at its highest, where you peg an employee in terms of a grading structure, the problems seem to be that even if you nominate them as a grade 2 or a 3 or a 4, whatever the case is, because of the varying descriptions of vehicles and configurations which they will be required to move on any day or any week, it will just be like a yoyo in terms of a payroll burden. They will be completely different rates on a very regular basis and again, as I said before, we don't see that as being a satisfactory outcome.

PN3583

The submission I made a moment ago about that award, your Honour, takes into account the matter that Mr Gibian raised about the rates of pay as being the base. I'm not quite sure that that's exactly right given the history of the award. The rates of pay weren't the base simply for recognising driving skills. They were a base for recognising, as I've pointed out, many other things; as I read out from that passage of Austin C.

PN3584

The allowances are an add‑on, but the rates themselves are not simply a recognition of, "I have a licence that I can drive a heavy vehicle." They went far beyond that and that, we say, is an important issue that you raise and a reason why we say that there should be some distinguishing rate for people in the vehicle relocation industry. Unless there is anything further, they are my submissions.

PN3585

SENIOR DEPUTY PRESIDENT HAMBERGER: Thanks very much. We will reserve our decision.

ADJOURNED INDEFINITELY [1.22 PM]