Terence Howell v Linfox Australia Pty Ltd
[2017] FWC 5995
•15 NOVEMBER 2017
| [2017] FWC 5995 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Terence Howell
v
Linfox Australia Pty Ltd
(U2017/9485)
DEPUTY PRESIDENT GOOLEY | MELBOURNE, 15 NOVEMBER 2017 |
Application for an unfair dismissal remedy.
[1] Mr Terence Howell was employed by Linfox Australia Pty Ltd until his employment was terminated on 18 August 2017. Linfox objected to Mr Howell’s application because it said he earned more than the high income threshold.
[2] I granted Mr Howell permission to be represented by Mr Jim McKenna of Counsel as I was satisfied that the matter involved some complexity and representation would enable the matter to be dealt with more efficiently. Mr George Katsifolis represented Linfox.
[3] At the date of Mr Howell’s dismissal, the high income threshold was $142,000.
[4] Mr Howell was employed as the National Dangerous Goods Manager for the Resources and Industrial Business Unit. His employment was based at Altona North.1 At the time of his dismissal Mr Howell’s base salary was $139,417.68. In addition, he was paid 10% superannuation which is .5% above statutory superannuation contribution that Linfox is required by law to pay. Linfox calculated this to be worth $697.09. In addition, Linfox contend that Mr Howell was provided with a company vehicle which he was able to and did use for personal use. Linfox calculated the value of the private use of the car to be $10,663.80. Accordingly, Linfox submitted that Mr Howell’s annual rate of earnings exceeds the high income threshold.
[5] Mr McKenna’s primary contention is that an enterprise agreement applied to Mr Howell’s employment, namely the Linfox Australia (Bulk Petroleum) Agreement 2014.
[6] To support that submission he relied upon the coverage clause of the Agreement, the definition of the term “employee” in the Agreement and the Rules of the Transport Workers’ Union of Australia.
[7] The Agreement was approved on 17 October 2014 and operated from 24 October 2014. It has not been terminated.
[8] Mr McKenna relied on s.53(1) of the Fair Work Act 2009 which provides that an agreement covers an employee if it is expressed to cover the employee.
[9] The Agreement provides at clause 2 that the Agreement covers:
“2. COVERAGE
2.1 This Agreement covers:
(a) Linfox;
(b) each Employee; and
(c) the TWU,
in respect of the Sites specified in Appendix 1.
In respect of the Sites specified in Appendix 1, this shall include any replacement site or additional site to service the relevant contracts.
2.2 The relevant terms and conditions of this Agreement shall apply to new sites and new business acquisitions where agreed by the parties. Where the parties agree that the terms of this Agreement shall apply, the parties may negotiate different terms in the new agreement. This may involve, for example, negotiations about rates of pay for newly acquired businesses.”
[10] Appendix 1 lists the sites and relevantly includes Pinnacle Road, Altona North.
[11] The Agreement defines employees as follows at clause 7(n):
“(n) Employee means an employee of Linfox who is a member, or is eligible to be a member, of the TWU who is employed at a Site.”
[12] The Registered Rules of the TWU define who can be a member of the TWU. Annexure A describes the industry in connection with which the union is registered:
“ANNEXURE A - DESCRIPTION OF INDUSTRY IN CONNECTION WITH WHICH THE UNION IS REGISTERED
(a) In or in connexion with road or aerial transport, delivery of milk, sanitary carting, mechanical excavation of earthworks and mechanical or animal-power haulage or driving industries but not so as to include the industries of transport by water, transport by Railways (except the despatch to or from railways of goods and the necessary loading or unloading operations connected therewith and shunting operations by horse-power), tramways passenger transport, driving of stationary engines, driving of passenger lifts, and driving of agricultural machines and implements in use for agricultural pursuits.
AND the industry of chauffeurs, conductors, and attendants on or about motor vehicles and employees engaged in and about garages, motor stables, and other similar places in the repair and maintenance of motor vehicles or as attendants.
(b) (i) the production, sale and distribution of
(1) gas including refined and residue oil gas, and
(2) by-products of that industry and goods from the products of that industry, including coke, tar, pitch fuel, sulphate of ammonia and benzol;
(ii) In bottling, packing, delivering, installing and maintaining all or any types of gas, including liquified petroleum gas, propane and butane used for all purposes;
(iii) In the production, piping, reticulation, distribution and sale of all or any types or forms of natural gases.”
[13] Appendix B sets out the eligibility rule for the TWU:
“ANNEXURE B - CONDITIONS OF ELIGIBILITY FOR MEMBERSHIP
(A) (1) The Union shall consist of an unlimited number of persons employed or seeking to be employed in or in connexion with the industry or industries, and/or occupation, and/or calling, and/or vocations, and/or industrial pursuits of:
(a) The transport of persons and/or passengers, and/or goods, wares, merchandise, or any material whatsoever, by or on vehicles or animals or by aircraft or by motor, steam, oil, electric or other mechanically-propelled contrivances; drivers, assistants and conductors of same, and stable work wheresoever performed, including the work of attendance on horses and other beasts of burden, whether in stables or otherwise; all yard and garage cleaning and other work in connexion with driving and transport, including, washing, greasing, oiling, cleaning, polishing, tyre-fitting and general attendance on horse or mechanically-propelled vehicles and mechanical contrivances, training and breaking-in of horses, loading and unloading on to and/or from any vehicle; shunting by horse-power, supervising and collecting moneys, or washing cans in connexion with the distribution of milk, working in pits, tarring and washing pans, ploughing in of night soil, digging trenches and burying soil in connexion with sanitary work, ploughing in conjunction with the construction and excavation of earthworks; and
(b) All driving; and
(c) Chauffeurs, Conductors, and Attendants on or about motor vehicles, and employees engaged in and about Garage, Motor Stables, and other similar places in the repair and maintenance of motor vehicles, or as attendants.
(A) (2) For the purposes of this rule a person shall be deemed to be employed in one or more of the specified industries, occupations, callings, vocations or industrial pursuits if:
(i) his or her usual occupation is that of an employee in one or more of the specified industries, occupations, callings, vocations or industrial pursuits; or
……….”
[14] Mr McKenna submitted that Linfox was in the transport industry and this was conceded by Linfox. Mr McKenna submitted that Mr Howell was employed in or in connection with that industry. It was also submitted that Mr Howell was employed in an occupation performing “other work in connection with driving and transport.”
[15] Linfox submitted that the Agreement does not apply to Mr Howell. It submitted that the Agreement only applied to drivers. It submitted that Mr Howell was not within the scope of the classifications in the Agreement.
[16] The main body of the Agreement does not include a classification structure. Any classification structure is derived from the incorporated documents. The Agreement provides at clause 4.1 that the Agreement consists of three parts and relevantly Part C refers to incorporated terms. It also provides for the relationship between the common terms and the incorporated terms.
[17] Part C provides for incorporated terms at clauses 84 and 84 as follows:
84. Incorporated terms from the 2007 Agreement
84.1 Subject to clause 84.2 the following terms are incorporated into this Agreement for all Employees:
(a) Appendix 1 – Rates of pay at commencement of Agreement
(b) Clause 4.2.1 Wage increases; and
(c) Appendix 2 – Local Matters of the 2007 Agreement;
84.2 The Incorporated Terms of the 2007 Agreement in this Part C are to be read in conjunction with the Incorporated Terms of the Modern Award but where there is any inconsistency, the Incorporated Terms of the 2007 Agreement prevail over the Incorporated Terms of the Modern Award.
85. Incorporated Terms from the Oil Award
85.1 Subject to clause 85.2 the Oil Award is incorporated into this Agreement for all employees.
85.2 The Incorporated terms of the Oil Award in this Part C are to be read in conjunction with the Incorporated Terms of the Modern Award but where there is any inconsistency, the Incorporated Terms of the Modern Award prevail over the Incorporated Terms of the Oil Award.
[18] The Oil Award is defined at clause 5(w) as the Transport Worker’s (Oil Agents/Contractors) Award 2001 as at the Application date.
[19] Appendix 1 of the 2007 Agreement provides for rates of pay which are dependent on the size of the vehicle. The Oil Industry Award relevantly applied to drivers of motor vehicles.
[20] Linfox submitted that Mr Howell’s contract of employment did not incorporate the Agreement.
[21] Further it submitted that it was the intention of the parties that the Agreement cover bulk drivers and it was not the intention of the parties that it apply to all employees.
[22] To support this submission, Linfox relied upon the employer declaration filed with the application for approval of the Agreement. That declaration advised that the Agreement did not apply to all employees and advised the Commission that “the proposed Agreement covers employees engaged at Linfox’s bulk fuel and petrochemical operations covering the same group of employees and replaces the previous agreement of which the nominal term has expired. The Agreement does not cover Linfox’s transport workers and distribution facilities workers at sites throughout Australia who are currently covered by a recently approved national Agreement with the TWU; and Linfox’s sites at Gorgon in Western Australia (where current agreements operate) and some distribution centres where there is a current agreement with another union.”
[23] Linfox conceded it was in the transport industry and made no detailed submission in opposition to the contention that Mr Howell was eligible to be a member of the TWU.
Consideration
[24] I am satisfied that the Agreement applied to Mr Howell. I reach this conclusion based on the plan and ordinary meaning of the words used in the Agreement.2 The coverage of the Agreement is not expressed to only apply to employees engaged in a classification set out in the Agreement. The term employee is defined and has a much wider scope than those employed in a classification in the Agreement. It applies to all employees employed at named sites who are eligible to be members of the TWU.
[25] The coverage clause is consistent with other clauses in the Agreement. For example the Agreement at clause 9 provides that Part B applies to all employees. Nowhere in the Agreement are there words which limit the application of the Agreement to drivers.
[26] I am prepared to accept Linfox’s submission that no classification in the Agreement applied to Mr Howell despite some uncertainty about the classification structure in the Agreement.3
[27] However this does not preclude him being covered by the Agreement. It may be that Mr Howell’s entitlement to wages does not arise under the Agreement but that does not exclude him from coverage. Further given there is no ambiguity or uncertainty about the coverage of the Agreement it is not necessary to look to the intention of the parties.
[28] In any event nothing put before the Commission would support a finding that the parties intended the Agreement to only apply to drivers. Even if I accepted that the statutory declaration was a relevant document to have regard to in determining the intention of the parties, the document does not assist Linfox as it simply advised that the 2014 Agreement was intended to have the same coverage as the predecessor agreement. The coverage clause in the 2011 Agreement is in the same terms as the 2014 Agreement. Further I note that the scope of the 2011 differed in scope from its predecessor agreement which provided that it covered “employees of Linfox, whether members of the union or not, who are engaged in or in connection with the distribution of petroleum and petroleum based products employed by Linfox in a classification set out in this agreement at the following sites…..”
[29] I am further satisfied that Mr Howell was eligible to be a member of the Transport Workers’ Union. Mr Howell was employed by Linfox as the National Dangerous Goods Manager. Mr Howell gave unchallenged evidence about this role and duties.4 I am satisfied that Mr Howell was employed in or in connection with the industry of the transport of goods by vehicles or alternatively was employed in other work in connection with driving and transport.
[30] As I have determined that an enterprise agreement applied to Mr Howell, it is not necessary to determine if the Mr Howell’s earnings exceeded the high income threshold.
[31] For the reasons set out above, Linfox’s objection that Mr Howell was not protected from unfair dismissal because his annual rate of earnings exceeded the high income threshold is dismissed and an order to that effect will issue with this decision.
DEPUTY PRESIDENT
Appearances:
J. McKenna of Counsel for the Applicant.
G. Katsifolis for the Respondent.
Hearing details:
2017.
Melbourne:
10 November.
1 Exhibit R4 at CK1
2 AMWU v Berri Pty Limited[2017] FWCFB 3005 at [1].
3 The Agreement is a curious document. For example, it incorporates the Oil Award as defined and as it was at the application date. Yet at the time of the application for approval of the Agreement, the Oil Award which had been renamed the Transport Workers (Oil Distribution) Award 2001 had been terminated. This occurred on 29 July 2011. Further it is also not clear how the relevant modern award is incorporated into this Agreement as there is no clause expressly incorporating the Award.
4 Exhibit A1 at [11]-[31].
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