Linfox Armaguard Pty Ltd v Transport Workers' Union of Australia

[2012] FWA 4949

[2012] FWA 4949

FAIR WORK AUSTRALIA

STATEMENT

Fair Work Act 2009
s.739 - Application to deal with a dispute

Linfox Armaguard Pty Ltd
v
Transport Workers' Union of Australia
(C2012/574)

Road transport industry
COMMISSIONER LEWIN	MELBOURNE, 7 JUNE 2012

Alleged dispute concerning Crewing and crewing allowance - conciliation - standard method of crewing - extra claim - no merit - dispute settled.

[1] Linfox Armaguard has notified of a dispute concerning the application of the Armaguard Road Crew (Victoria) Collective Agreement 2011 (“the Agreement”). In particular, the application of the Agreement in relation to crewing numbers to apply to various operations rostered on the Queen’s Birthday weekend public holiday, 11 June 2012.

[2] I conducted a conciliation conference to deal with this dispute in accordance with Clause 8.5 of the Agreement today.

[3] The provisions of Clause 8 of the Agreement are set out below:

“8. DISPUTES SETTLEMENT PROCEDURE

8.1 The parties commit to resolve disputes, difficulties or issues arising from time-to time by following the dispute avoidance and settlement procedures detailed

below:

8.2 In the event of a question, grievance, dispute or other difficulty arising, the following actions are to be taken, in turn, until the matter is resolved.

8.3 All matters of concern to the parties can be referred via this process so that the interests of those affected, including clients of Armaguard, are protected from disruption and the value of good working relationships and efficiencies continue.

8.4 The Process

8.4.1 The basis of this procedure is that all matters affecting employment should as far as possible be resolved at the Branch level and without interruption to work. At all stages during this process, an employee is entitled to have another employee or an employee representative present during the discussions

8.4.2 Disputes between a supervisor or a representative of Armaguard and an employee or a group of employees should be referred to the Senior Supervisor by either the employee/employees or the supervisor/Armaguard representative. The Senior Supervisor will maintain a record of matters discussed.

8.4.3 If not settled, the matter shall then be discussed by the affected employee or employees and the Operations Manager.

8.4.4 In the event that the matter cannot be resolved at Branch level the following

procedures shall then apply:-

8.4.5 The Branch Manager will brief the appropriate Human Resources Manager along with a written submission by the employee and their supervisor.

8.4.6 The Human Resources Manager will then consult the appropriate parties to decide the issue and issue a directive in writing.

8.5 If the matter is not resolved by following the procedure set above under paragraphs 8.4.1 to 8.4..4, either party may refer the matter to Fair Work Australia for conciliation and, where necessary, Arbitration. The decision of the Tribunal shall be final subject to any right of appeal and shall be accepted by the parties.

8.6 The parties may choose to engage external representation in matters appearing before FWA or other external bodies subject to the rules of FWA and the Fair Work Act 2009 as amended from time to time.

8.7 Continuity of Work

8.7.1 While the parties are attempting to resolve the matter the parties will continu to work in accordance with this Agreement and their contract of employment unless the Employee has a reasonable concern about an imminent risk to his or her health and safety. Subject to relevant provisions of the State’s occupational health and safety law, even if the Employee has a reasonable concern about an imminent risk to his or her health or safety, the Employee must not unreasonably fail to comply with a direction by the Company to perform other available work, that is safe and appropriate for the Employee to perform

8.8 Speedy Resolution

8.8.1 At all stages of this procedure, the parties shall act as expeditiously as

practicable in attempts to resolve the matter.”

[4] Four vehicles will operate on the Queen’s Birthday public holiday 2012; three two-person crews and one three-person crew.

[5] Clause 27.1 of the Agreement provides as follows:

“27.1 Upon the inclusion of the Flexible Crewing allowance in base pay, the standard method of crewing, allowing for provision of appropriate vehicles, shall be two person crewing, generally with two people out, except where noted in the Security Site Survey or for Operational reasons as determined by the company.”

[6] Consequently, the Agreement permits the working of two-person crew vehicles. However, the TWU points out that by a private collateral agreement the company has agreed that a number of employees who, some time ago, indicated that they do not wish to work on a vehicle with less than a crew of three will not be rostered to do so.

[7] While this agreement is separate to and distinct from the enterprise agreement, the terms of which provide for two-person crew vehicle operations as the standard method of crewing, the company nevertheless accepts that those who so indicated will not be required to work on a two-person crew vehicle on the Queen’s Birthday public holiday.

[8] Mr Frendo a delegate of the TWU, suggested that, nevertheless the company should roster some of the employees who do not wish to work a two-person crew vehicle in addition to the employees who will be rostered under the arrangements currently planned for the Queen’s Birthday holiday. Mr Frendo explained that some of those employees who do not wish to work on two-person crew vehicles had expressed a desire to work on the Queen’s Birthday public holiday. However, Mr Frendo stated that most of the employees who do not work on two-person crews do not wish to work on the Queen’s Birthday public holiday.

[9] It seems to me that Mr Frendo’s proposition is that the three two- person crew vehicles scheduled to operate on the Queen’s Birthday public holiday should have an additional employee rostered from among those who do not wish to work on two-person crewed vehicles, so that all the operations would be crewed by three persons.

[10] This is not required by the enterprise agreement nor is the company in any way in violation of its private agreement not to roster employees who have indicated in accordance with the private agreement that they do not wish to work on a two-person crew vehicle.

[11] Accordingly, it would appear that the only purpose of the proposition made by Mr Frendo would be that three additional individuals be provided with an opportunity to work on the public holiday, in order to receive the enhanced remuneration which would be payable due to the public holiday penalty rate of double time and half applying to the work.

[12] It is not possible to discern any merit in this proposal. The enterprise agreement does not require it. It would also seem to be an extra claim contrary to the provisions of Clause 4 of the Agreement. Moreover, I was advised that a mixture of two-person and three-person crewing has been scheduled on previous public holidays in accordance with the terms of the Agreement and operational requirements. Finally, this proposal, it would seem, is not on behalf of the workforce as a whole but rather the benefits of the proposal would be confined to three individuals.

[13] Having regard to all of the above I stated to the TWU that I considered the proposal to be without merit. I was advised by Mr Parker of the TWU and Mr Frendo that arbitration of the dispute was not necessary in light of my statement, Linfox Armaguard concurred. In accordance with clause 8.5 of the Agreement the dispute has been settled as a result of the Tribunal’s statement during the conciliation conference and the advice of the TWU and Linfox Armaguard that arbitration of the dispute is not necessary.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

< Price Code A, AE891045  PR524983  >