TWU and McColls Transport Pty Ltd [2012] NSWIRComm 1026

Industrial Relations Commission New South Wales Medium Neutral Citation: TWU and McColls Transport Pty Ltd [2012] NSWIRComm 1026 Hearing dates: 20 August, 2012 Decision date: 07 December 2012 Before: Macdonald C Decision: Respondent required to pay Grade 8 rate of pay to drivers of B Double and semi-trailer vehicles Catchwords: INDUSTRIAL DISPUTE - section 146B of Industrial Relations Act 1996 - truck drivers paid particular graded rate regardless of driving B-Double truck or semi-trailer - particular rate (Grade 8) paid over years - Respondent carried out national payroll audit - Respondent said payment of Grade 8 to all drivers was a mistake - differing graded payments then applied by Respondent - TWU notified dispute - conciliation - Hearing - evidence about payment of Grade 8 to new and promoted drivers - interpretation of 2007 and 2011 Agreements - custom and practice. HELD: the 2007 and 2011 Agreements interpreted to require Respondent to pay Grade 8 rate of pay to drivers of B-Double and semi-trailer vehicles - Order sought by TWU granted. Legislation Cited: Industrial Relations Act 1996 Cases Cited: Australian Municipal, Administrative, Clerical & Services Union v Treasurer (Cth) (1998) 80 IR 345

Short v FW Hercus Pty Ltd (1993) 46 IR 128 Category: Principal judgment Parties: Transport Workers Union of Australia, New South Wales Branch (applicant) McColls Transport Pty Ltd (respondent) Representation: Mr T Warnes - Transport Workers Union of Australia - NSW Branch

Ms A DeBoos - Middletons File Number(s): IRC 111 of 11

DECISION 1The Transport Workers Union of Australia - NSW Branch (the TWU) filed a dispute notification pursuant to section 146B of the Industrial Relations Act 1996 ("the Act"). The dispute notification was lodged on 10 February 2011 and named McColls Transport Pty Ltd as the Respondent to the dispute. 2The dispute notification was listed before myself (Macdonald C) for either a Compulsory Conference or Report Back on the following occasions: 15 February, 2 March, 16 March, 15 April, 12 May, 9 June and 25 August 2011. On the latter date a program for the filing of evidentiary material was put in place. 3The TWU did not file its opening evidentiary material by the required date. A revised filing program was suggested by the Respondent's legal representative (Clayton Utz). Subsequent revisions of the filing program eventually saw the filing of material for both parties. 4By notification of 25 June 2012, issued out of my office, the dispute notification was set down for a two day Hearing on 20 and 21 August 2012. 5On 7 August 2012, my office was advised of a change in legal representation for the Respondent. Ms A DeBoos of Middletons now appeared (in lieu of the law firm, Clayton Utz). 6At the Hearing, the TWU was represented by Mr T Warnes, assisted by Mr Nyols: both union officials. The following witnesses (who also filed witness statements) for the TWU were not required for cross-examination: Paul Smith - truck driver Leigh Foster - truck driver Jason Russo - truck driver Peter Sterland - truck driver Matthew Russell - truck driver Scott Maxwell - truck driver David Travers - truck driver All of the foregoing witnesses are engaged by the Respondent. 7At the Hearing, the Respondent was represented by Ms A DeBoos, solicitor who was assisted by Mr Matthew Purcell (Operations Manager, Altona, of the Respondent). Mr Purcell filed a witness statement but was not required for cross-examination. Ms DeBoos called the following witnesses: Sharon Dyke (formerly Sharon West) - Human Resources Manager Justin Keast - General Manager, Bulk Chemicals Division Rod McGuiness - Operations Manager, Preston 8The Hearing took place on one day only: 20 August 2012.