National Union of Workers v Linfox Australia Pty Ltd
[2012] FWA 4046
•11 MAY 2012
[2012] FWA 4046 |
|
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
National Union of Workers
v
Linfox Australia Pty Ltd
(C2011/6418)
COMMISSIONER BISSETT | MELBOURNE, 11 MAY 2012 |
Alleged dispute concerning incorrect classification.
Introduction
[1] The National Union of Workers (NUW or the Applicant) has made an application to Fair Work Australia to deal with a dispute pursuant to the dispute settling procedures of the Linfox Victoria (Foster’s Warehousing - NUW) Agreement 2010 (the Agreement).
[2] The dispute relates to the appropriate classification levels of employees operating certain forklifts within the warehouse.
[3] The NUW claims that the classification structure contained in the Agreement requires that employees operating a forklift with a gross vehicle mass (GVM) exceeding six tonnes should be classified at Grade 3 and not at Grade 2 as is currently the case.
[4] Linfox (the Respondent) says that the Applicant misreads the Agreement and that classification descriptors with respect to forklift operation relate to the lifting capacity of a forklift and not to its GVM.
[5] The NUW seeks:
1. an order determining that employees covered by the Agreement operating a forklift with a GVM in excess of six tonnes are classified as Grade 3;
2. an order stating that the Respondent breached the terms of the Agreement to the extent that it has incorrectly classified said employees; and
3. a recommendation that the Respondent compensate said employees for lost wages. 1
[6] Linfox, alternatively, seeks ‘an order from FWA determining that employees who operate the Crown twin-tine forklift with a lifting capacity of 2.68 tonnes and Toyota twin-tine forklift truck with a lifting capacity of 3.2 tonnes are correctly classified as Grade 2 in accordance with Appendix 2 of the agreement.’ 2
The Agreement
[7] The Agreement was approved by Fair Work Australia on 3 October 2011 and operates from 10 October 2011. The Agreement contains a classification structure and descriptors for each classification level at Appendix 2. The classification descriptors for Grades 2 and 3 are relevant to this matter and state:
APPENDIX 2 - CLASSIFICATION STRUCTURE
Grade Duties & tasks
2 Skills/duties
1. Able to work from complex instructions and procedures.
2. Able to co-ordinate work in a team environment under limited supervision.
3. Responsible for quality of their own work.
4. Possesses sound interpersonal and communication skills.
5. Must be competent to perform one or more of the following tasks/duties or combination:
• maintaining control registers including inventory control and being responsible for the preparation and reconciliation or regular reports or stock movement, despatches, etc.
• liaise with management, suppliers and customers with respect to warehousing operations;
6. Inventory and distribution facility control, including:
• licensed operation of all appropriate materials handling equipment;
• use of tools and equipment within the warehouse (basic non-trades maintenance);
• VDU operation;
• operates 3 - 6 tonne truck.
7. In addition to the above, may possess a duly recognised first-aid certificate.
3 Skills/duties
1. Understands and is responsible for quality control standards.
2. Possesses an advanced level of interpersonal and communication skills.
3. Competent keyboard skills.
4. Sound working knowledge of all distribution facilities duties performed at levels below this grade, exercises discretion within scope of this grade.
5. May perform work requiring minimal supervision either individually or in a team environment.
6. Must be competent to perform one or more of the following tasks/duties or combination:
- use of a VDU for purposes such as the maintenance of a deposit storage system, information input/retrieval, etc;
- operation of all materials handling equipment under license, where required;
- development and refinement of a distribution facility layout including proper location of goods and their receipt and despatch;
- operates truck with a capacity in excess of 6 tonnes up to and including 13.9 tonnes.
7. In addition to the above, may be responsible for the proper application and maintenance of appropriate occupational health and safety standards.
(underlining added).
[8] The dispute settling procedure of the Agreement provides:
2.2 SETTLEMENT OF DISPUTES
2.2.1 Any question, dispute or difficulty arising from this agreement or the NES shall be dealt with in accordance with the following procedure:
(a) The matter shall first be discussed between the aggrieved employee and his/her supervisor.
(b) If settlement is not reached the matter shall be discussed between an employee representative of the affected employee’s choice, who may be a union delegate, and the site manager or other appropriate Linfox representative.
(c) If not settled the matter shall then be discussed between an employee representative of the affected employee’s choice, who may be a union organiser.
(d) If agreement is not reached, the matter shall then be discussed between a representative of Linfox and a more senior employee representative of the affected employee’s choice, who may be an appointed senior official of the union. The provisions of this sub-clause need not apply unless either the company or the employee representative of the affected employee’s choice, requests otherwise.
(e) If the matter is still not settled it may be submitted to a member of Fair Work Australia for determination, whose decision shall, subject to any rights of appeal, be final and will be accepted by the parties.
(f) If arbitration is necessary, the parties agree that Fair Work Australia shall have the power to do all such things as are necessary for the just resolution or determination of the matter in dispute. This includes the exercising of procedural powers in relation to directions, hearings, evidence and submissions which are necessary to make the arbitration effective.
2.2.2 A nominated employee representative may be involved in any of the above steps.
2.2.3 While the matter in dispute is being discussed in accordance with the procedure, as prescribed in sub-clause (2.2.1) hereof, work shall continue and the status quo as applying before the dispute shall be maintained. No party shall be prejudiced in relation to the final settlement by the continuance of work in accordance with this clause.
2.2.4 To avoid doubt, the dispute resolution procedure detailed in this clause shall not be used to resolve unfair dismissal or discrimination matters.
Jurisdiction
[9] The matter in dispute between the parties is the correct classification of employees covered by the Agreement who operate forklift trucks as established by the application of the classification structure contained in Appendix 2 to the Agreement.
[10] The NUW and Linfox have met on a number of occasions in an attempt to resolve the matter and have participated in conciliation at Fair Work Australia. These efforts have not been able to resolve the differences between the two parties.
[11] I am satisfied that the matter in dispute is a ‘dispute... arising from this agreement.’ The classification structure forms part of the Agreement. Further, I am satisfied that the parties have dealt with the matter in dispute in accordance with the dispute settling procedure of the Agreement.
[12] I therefore find that Fair Work Australia has jurisdiction to deal with the dispute as provided for in the dispute settling procedure.
Submissions
NUW
[13] The NUW submits that the approach to be taken in determining the correct classification of employees requires that I ‘consider the overall character of a classification definition and determine whether or not it is suitable, having considered the work performed by the employee.’ 3
[14] The NUW submits that the classification structure in the Agreement should be considered in the context of the classification structures contained in the Road Transport and Distribution Award 2010 (the RTD Award 2010) and the Transport Workers Award 1998 (the TW Award 1998). It submits that each of these awards distinguishes between classification levels based on the vehicle capacity. These awards are part of the wider industrial context within which the Agreement operates, are the genesis of the Agreement classifications, and are therefore a relevant consideration. The NUW notes that such a distinction does not exist in the Storage Services and Wholesale Award 2010.
[15] The NUW, in its written submissions, put that:
the reference to capacity on the Agreement’s classification structure means the gross vehicle mass of the forklift truck that is operated by employees. This is consistent with the genesis of the Agreement’s classification structure. 4
[16] The forklifts used at the Applicant’s site are those with a GVM of less than six tonnes and those with a GVM of greater than six tonnes, consistent with the distinction in tonnage provided for in the Agreement classification structure.
[17] The overall character of the Grade 2 and 3 classifications are otherwise broadly similar. The key difference between the Grades - consistent with the Awards - is the capacity or GVM of the machinery operated.
[18] On this basis the NUW submits that employees operating a forklift with a tonnage (ie GVM) in excess of six tonnes should be classified at Grade 3 under the Agreement.
Respondent submissions
[19] Mr Jones for Linfox accepts that, for the purpose of the classification structure, a forklift is a truck. This is based on the Australian Standard AS2359-1995 (the Standard). Further, Mr Jones submits that when reference to a forklift truck’s operational capability and performance is made in the Standard it is to the forklift’s lifting capacity, not to the GVM. In its written submission the Respondent outlines a number of areas where the Standard references the capacity of the forklift (referred to as an industrial truck).
[20] Mr Jones submits that the relevant modern award (the RTD Award 2010) uses lifting capacity when referring to forklift trucks and GVM when referring to rigid/heavy/multi combination vehicles.
[21] Mr Jones agrees with the Applicant that the relevant awards that provide context for the classification structure found in the Agreement are the RTD Award 2010 and the TW Award 1998. Both of these awards, he submits, use lifting capacity when referencing a forklift and GVM when referencing other vehicles.
[22] GVM is defined in the RTD Award 2010:
gross vehicle mass or GVM means the maximum permissible mass (whether described as the gross train vehicle mass or otherwise) for the motor vehicle and its load (but excluding any trailer and its load) as stated in a certificate of registration or other certificate that is issued in respect of the motor vehicle by the relevant authority or by the corresponding authority of another State or Territory or that is required by the law to be painted or displayed on the motor vehicle
[23] Mr Jones submits that the definition ‘clearly aligns “GVM” to a registered motor vehicle and not a fork-lift’ as ‘none of the forklifts at the site have certificates of registration.’ 5
[24] Mr Jones submits that the classification structure in the Agreement arose from the Storage Services - Warehousing - Award 1999 (SSW Award 1999). The wording of the classification descriptors in that award is the same as existed in the earlier (1996 and 1994) versions of the Award.
[25] The classification structure in the SSW Award 1999 provides that a Grade 2 task/duty includes ‘operate a 3-6 tonne truck’ and Grade 3 duties include ‘operates a truck with a capacity in excess of 6 tonnes.’ (The words ‘up to and including 13.9 tonnes’, ‘gross vehicle mass’ and ‘GVM’ are not included in the description.)
[26] Mr Jones submits that the RTD Award 2010 skill/duty of a Distribution Facility Employee Grade 3 of ‘operates a truck with a capacity in excess of six tonnes up to and including 13.9 tonnes GMV’ is clearly incongruent and an obvious error.
[27] On this basis Mr Jones submits that the employees are correctly classified at Grade 2 and they do not operate a forklift with a lifting capacity in excess of six tonnes.
Consideration
[28] This is an application by the NUW for me to determine the correct classification of employees operating forklifts. The forklifts in question are a Crown twin-tine forklift weighing 6.410 tonnes with a lifting capacity of 2.68 tonnes and a Toyota twin-tine forklift weighing 6.54 tonnes with a lifting capacity of 3.2 tonnes. 6
[29] The raw question to be answered is does the phrase ‘capacity in excess of 6 tonnes up to and including 13.9 tonnes’ refer to the GVM of the forklift (as contended by the NUW) or the lifting capacity of the forklift (as contended by Linfox).
[30] The NUW say the context within which I should consider the question (and hence the classification structure in the Agreement) is the classification structure of the RTD Award 2010 and the TW Award 1998. There is no doubt that the TW Award 1998 informed the classification structure in the RTD Award 2010 in Schedule C to that Award 7 (the Transport Worker grades).
[31] A consideration of the classification structure in Schedule C to the RTD Award 2010 leads me to conclude that forklift duties - and hence the relevant classification - are differentiated on the basis of the lifting capacity of the forklift whilst it is rigid vehicles (other than forklifts) that are differentiated on the basis of GVM.
[32] The classifications in Schedule C to the RTD Award 2010 illustrate this clearly in the following excerpts from the classification structure:
Transport Worker Grade 3: | Driver of a fork-lift up to and including five tonnes lifting capacity Driver of a two—axle rigid vehicle on [sic] any other rigid vehicle exceeding 4.5 tonnes, but not exceeding 13.9 tonnes gross vehicle mass (GVM) unless by special permit or registration such vehicle may be up to 15 tonnes gross vehicle mass (GVM)... |
Transport Worker Grade 4: | Driver of a three—axle rigid vehicle exceeding 13.9 tonnes gross vehicle mass (GVM)... Driver of fork-lift with a lifting capacity in excess of five tonnes and up to and including 10 tonnes... |
Transport Worker Grade 5: | Driver of a fork-lift with a lifting capacity in excess of 10 tonnes and up to 34 tonnes Driver of a rigid vehicle with four or more axles and a GVM exceeding 13.9 tonnes Driver of an articulated vehicle with three axles and a GCM of 22.4 tonnes or less... |
[33] If, as is agreed by everyone, the term truck in the classifications structure of the Agreement is in fact a reference to forklift trucks, the RTD Award 2010 tells me that forklifts are differentiated by their lifting capacity.
[34] If the RTD Award 2010 is the context within which I should comprehend the Agreement, then I inevitably must conclude that any differentiation of forklift trucks must be by reference to the lifting capacity of the forklift. By the same reasoning, any reference to trucks other than forklifts and other than as provided for in the RTD Award 2010 (eg concrete mixer or low loader etc), must be by reference to its GVM or GCM (gross combination mass).
[35] This being the case the reference to ‘a capacity in excess of 6 tonnes up to and including 13.9 tonnes’ in the classification structure of the Agreement must be a reference to the lifting capacity of the forklifts.
[36] My decision on this is reinforced by the definition of GVM and by the apparent anomaly that would occur within the RTD Award 2010 were I to accept the NUW submissions.
[37] The definition of GVM in the RTD Award 2010 states that GVM is as ‘stated in a certificate of registration...that is issued by a relevant authority...or that is required by law to be...displayed on a motor vehicle.’
[38] The forklifts at the site are not registered vehicles (and nothing was put to me to suggest they are required to be registered) and do not display a GVM. The GVM must be stated on the certificate of registration or must be displayed as is required by law. Each forklift under consideration in these proceedings, whilst displaying a compliance plate that shows the weight of the forklift and various lifting capacities of the forklift, does not display the GVM. If GVM was a relevant differentiator of forklifts I would expect to see it displayed somewhere on the forklift.
[39] Further, if I accept the submissions of the NUW, it implies that a Distribution Facility Employee Grade 3 driving a forklift with a GVM of 6 - 13.9 tonnes is a Transport Worker Grade 7. While a ‘driver of a two—axle rigid vehicle...exceeding 4.5 tonnes, but not exceeding 13.9 tonnes gross vehicle mass (GVM), is a Transport Worker Grade 3. Such an outcome is clearly anomalous, not logical on its face and would create confusion. Such an outcome undermines the submissions of the NUW.
[40] A consideration of the history of the phrase ‘a capacity in excess of 6 tonnes’ indicates that it was most likely derived from either the Transport Workers (Distribution Facilities) Award 1996 (Distribution Award 1996) or the SSW Award 1999. Each of these awards contained a grade 3 classification that included in its duties ‘operates a truck with a capacity in excess of six tonnes.’ Neither of these Awards included the words ‘up to and including 13.9 tonnes.’ The Transport Workers (Distribution Facilities) Award 2004 (Distribution Award 2004) arose from the award simplification 8 of the Distribution Award 1996. It includes, in the classification description for a Distribution Facility Employee Level 3, ‘operates truck with a capacity in excess of 6 tonnes up to and including 13.9 tonnes GMV (sic)’ (underlining added). The Distribution Award 2004 appears to be the precursor to Schedule B of the RTD Award 2010, which sets out the classification descriptors for distribution facility employees. The award simplification decision with respect to the Distribution Award 1996 sheds no light on why ‘up to and including 13.9 tonnes GMV (sic)’ was added to the existing criteria.
[41] None of this, whilst interesting, convinces me that ‘a capacity in excess of 6 tonnes up to and including 13.9 tonnes’, when read in the Agreement, relates to the GVM of the forklift. Rather, I consider, on the basis of the material before me, that it does refer to the lifting capacity of the forklift.
[42] I note that the Distribution Facility Employee Grade 2 in the Agreement includes the duty ‘operates a 3-6 tonne truck.’ It is agreed that a truck, in the context of this Agreement, means a forklift. A Distribution Facility Employee Grade 1 includes the duty ‘operates company small delivery vehicle.’
[43] I do not consider that there is any basis to conclude that the duties of a Grade 1 include the operation of these forklifts. The forklifts in question are not ‘small delivery vehicles.’
[44] The forklifts in question have a lifting capacity of 2.68 tonnes and 3.2 tonnes. This suggests that there is no classification for employees driving forklifts with the lifting capacity of 2.68 tonnes. I do not intend to leave such employees in some suspended state but rather will grant the order sought by Linfox that employees driving the Crown and Toyota forklifts or any forklifts with a similar lifting capacity are correctly classified as Grade 2 employees.
[45] In concluding I will observe that it appears that little thought has gone into the classification structure in the Agreement (and Schedule B to the RTD Award 2010) and its appropriateness to the actual work performed in a warehouse either generically or to meet the specific needs of Linfox under this Agreement. The classification descriptor in the Agreement of ‘operates a truck with a capacity in excess of 6 tonnes up to and including 13.9 tonnes’ started out as ‘operates a truck with a capacity in excess of 6 tonnes.’ Why ‘up to and including 13.9 tonnes’ was added (and why GMV was added to the award descriptor) and what this was meant to imply in the context of employees working in a distribution facility (but clearly not driving trucks delivering to or from the facility) is not at all clear. It is a matter that creates uncertainty and, in the context of the Agreement, should be attended to by the parties responsible for the Agreement certainly at the time of negotiating the replacement to this Agreement if not earlier.
Conclusion
[46] I have considered all of the material and submissions put before me. On the basis of this material I cannot conclude and do not find that employees covered by the Agreement should be classified at Grade 3.
[47] The application of the NUW that I should issue an order is denied.
[48] For the sake of clarity, however, I shall issue an order that employees covered by the Linfox Victoria (Foster’s Warehousing - NUW) Agreement 2010 who drive the Crown or Toyota twin-tine forklifts with a lifting capacity of 2.68 tonnes or 3.2 tonnes or forklifts of similar lifting capacity are correctly classified as Grade 2 in accordance with Appendix 2 of the Agreement.
COMMISSIONER
Appearances:
D Mujkic of the Applicant.
D Jones of the Respondent.
Hearing details:
2012.
Melbourne:
April 24.
1 Exhibit NUW2, paragraph 20.
2 Exhibit Linfox 1, paragraph 35.
3 Exhibit NUW2, paragraph 8.
4 Exhibit NUW 2, paragraph 17.
5 Exhibit Linfox 1, paragraph 28.
6 Exhibit Linfox1, attachments A and B.
7 Exhibit NUW2 includes this schedule from the RTD Award 2010 erroneously titled Schedule B and Schedule B from the RTD Award 2010 is erroneously titled Schedule A.
8 Pursuant to Item 51 of Schedule 5 of the Workplace Relations and Other Legislation Amendment Act 1996.
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