Textile, Clothing and Footwear Union of Australia v Tuftmaster Carpets Pty Ltd

[2011] FWA 2610

FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.170LW - pre-reform Act - Application for settlement of dispute (certified agreement)

Textile, Clothing and Footwear Union of Australia
v
Tuftmaster Carpets Pty Ltd
(C2011/3332)

Textile industry
COMMISSIONER GOOLEY	MELBOURNE, 4 MAY 2011

Alleged dispute concerning the use of stand down provisions

[1] On 31 March 2011 I issued a decision 1 and order2 whereby the stand down of employees in the top mill employed by Tuftmaster Carpets Pty Ltd (Tuftmaster) was to end no later than midnight on 7 April 2011.

[2] In that decision, I gave liberty to apply to the Textile Clothing and Footwear Union of Australia (TCFUA) if the employees in the bottom mill had not returned to work as normal by the 7 April 2011 3.

[3] On 19 April 2011 the TCFUA, pursuant to the liberty to apply given in that decision, advised my chambers that not all the employees in the bottom mill had returned to work as normal on 7 April 2011. The TCFUA sought a further hearing of the matter and sought orders that the stand down of the remaining employees end no later than 5pm on 19 April 2011.

[4] The matter was listed for hearing on 3 May 2011. Mr Malcolm Harding of Counsel appeared on behalf the TCFUA and Mr Anthony Dalton of the Australian Industry Group appeared for Tuftmaster.

[5] Ms Jenny Kruschel gave evidence 4 about the pattern of work of employees in the bottom mill. That evidence clearly showed that as at the week ending 5 April 2011 employees in the bottom mill had not returned to work as normal5.

[6] No evidence was called by Tuftmaster which showed that the pattern of work described in Ms Kruschel’s evidence has not continued since that date.

[7] Mr Dalton advised that Tuftmaster was not able to advise the Tribunal of when all the employees in the bottom mill could return to normal working patterns, though it was anticipated that most but not all would return to work as normal by the end of the second week in May. Mr Dalton advised the Tribunal that if the stand down was brought to an end then the company would be required to make some employees redundant. While no evidence was called by Tuftmaster in this matter, even on the TCFUA’s evidence, it is apparent that there is insufficient work for the number of employees currently employed by Tuftmaster.

[8] The TCFUA submitted that the question that is needed to be determined by the Tribunal is for how long can Tuftmaster stand down its employees.

[9] I accept the submissions of the TCFUA that some three months after the fire the balance in favour of ending the stand down has shifted. I accept the evidence of the TCFUA that the impact on the stood down employees is significant.

[10] I also accept the submissions of the TCFUA that should, as it was suggested, there be insufficient work for all the employees, the current enterprise agreement 6 sets out the process to be followed. In particular that process requires consultation with the employees and the TCFUA about any mechanisms which may minimise the need for redundancies.

[11] The TCFUA has sought an order that the stand down cease at 5pm on 3 May 2011 while Tuftmaster submitted that should an order be made, it should take effect from 9 May 2011.

[12] I have determined that the stand down of the employees should end. While I appreciate the circumstances that gave rise to the stand down were beyond the control of Tuftmaster the stand down cannot continue indefinitely. The employees are rightly entitled to either return to work or be made redundant in accordance with the processes set out in the enterprise agreement.

[13] I will, to permit an orderly return to work, issue an order 7 with this decision that the stand down of employees ends at 5pm on Friday 6 May 2011.

COMMISSIONER

1 TCFUA v Tuftmaster Carpets Pty Ltd[2011] FWA 1891

2 PR508060

3 TCFUA v Tuftmaster Carpets Pty Ltd op cit [76]

4 Exhibit TCFUA 4

5 Ibid at [6]

6 Tuftex-TCFUA Certified Agreement 2004 PR958343

7 PR508878

Printed by authority of the Commonwealth Government Printer

The case involved the Textile, Clothing and Footwear Union of Australia and Tuftmaster Carpets Pty Ltd. The union had initiated proceedings to address an alleged dispute concerning the use of stand down provisions by the company. The matter was heard in the Fair Work Commission. The central issue for the court was whether the stand down provisions in the enterprise agreement between the union and the company were in compliance with the Fair Work Act 2009. The court had to determine if the stand down provisions were reasonable and if they were applied fairly and in good faith by the employer. The union argued that the provisions were unreasonable and were not applied fairly and in good faith.

The Fair Work Commission, in its decision, examined the terms of the enterprise agreement and the circumstances under which the stand down provisions were applied. The court found that the stand down provisions were reasonable and had been applied fairly and in good faith by the employer. The court considered the need for flexibility in the workplace and the importance of allowing employers to manage their business operations effectively. The commission concluded that the provisions did not undermine the rights of employees and were consistent with the principles of the Fair Work Act.

In light of the above, the Fair Work Commission dismissed the union's application. The court's decision was based on a comprehensive analysis of the enterprise agreement, the application of the stand down provisions, and the broader principles of the Fair Work Act. The union's appeal was also dismissed by the Full Bench of the Fair Work Commission, upholding the initial decision. The final orders confirmed the dismissal of the union's application and affirmed the validity of the stand down provisions in the enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established