Transport Workers' Union of Australia v Linfox Australia Pty Ltd

[2015] FWC 2768

[2015] FWC 2768

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Transport Workers’ Union of Australia
v
Linfox Australia Pty Ltd
(C2015/1085)

COMMISSIONER ROBERTS SYDNEY, 12 MAY 2015

Application to deal with a dispute - payment of telephone and laundry allowances.

[1] This decision concerns an application made by the Transport Workers’ Union of Australia (the TWU or the Union) on 7 January 2015, pursuant to s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute between it and Linfox Australia Pty Ltd (Linfox or the Company). The dispute was referred to the Commission pursuant to clause 33 (Settlement of Disputes Procedure) of the Linfox and Transport Workers Union Road Transport and Distribution Centres Agreement 2014 (the Agreement). Clause 33 of the Agreement sets out the steps to be followed when there is “any dispute or grievance that arises at the workplace between an Employee and Linfox and/or Linfox and the TWU about the Agreement or the employment relationship ...” Clause 33 further provides at subclauses (d) and (e) that where a dispute cannot be resolved between the parties then conciliation is to be conducted by the Commission and if this fails, the Commission “may proceed to arbitrate the dispute and/or otherwise determine the rights and/or obligations of the parties to the dispute.” The parties to the Agreement are Linfox and the TWU.

[2] Clause 8 (Relationship With Other Agreements) of the Agreement states: “This Agreement operates in place of any other award (including a modern award) or agreement (whether certified, or approved, or not).” The relevant modern award is the Road Transport and Distribution Award 2010 (the Award).

[3] Unsuccessful conciliation was conducted before me on 5 February 2015 and the case then came to me for arbitration at the request of the TWU. Directions were issued and the parties complied with those directions as to the filing and service of outlines of submissions, witness statements and other materials. The matter then proceeded to hearing in Sydney on 24 March 2015. At the hearing, the TWU was represented by Mr T Warnes and Linfox was represented by Mr M Baroni of McCabes Lawyers.

Evidence

TWU

J Waltis

[4] Mr Waltis gave sworn evidence and adopted a witness statement 1. Mr Waltis is a TWU member and delegate working at the Chullora NSW yard.

[5] He said that on 23 December 2009, he began receiving a phone allowance from Linfox. He continued to receive the allowance each week until 23 October 2014. He is aware that Mr Pickering had his phone allowance withdrawn about five weeks prior.

[6] Mr Waltis went on to say that he was surprised when he first received the phone allowance and checked with the pay clerk at Chullora and was told that the then Branch Manager had instructed her to start paying it. He checked further with the then Branch Manager, Mr P Caunt, and Mr Caunt said words to the effect:

“You’re entitled to have access to a phone in your roles as delegates. We have decided to give you the phone allowance because it’s cheaper for us to do that than to open the truck phones. That way it’s your problem if you run up a huge phone bill.”

[7] He was never advised that the phone allowance was to be discontinued, he only learnt of that when the allowance stopped.

[8] “I was on the national negotiating committee in 2011 and 2013. During the 2011 negotiations, Linfox raised a concern about all of the small deals that had been done on a site by site. Both parties agreed that the employees at those sites would keep all of their existing terms and conditions and the parties would reduce such deals to writing at the local level.”

[9] “At the 2013 negotiations, the parties acknowledged that both had failed to reduce existing practices to writing. As a result, we added a term called ‘Custom and Practice’ which ensured that the existing practices would continue throughout the life of the new enterprise agreement. Once again the parties undertook to reduce all practices to writing.”

[10] “At no time during either negotiation was the prospect of having the phone allowance taken away ever brought up or discussed with me.”

[11] In cross-examination, Mr Waltis agreed that there is no reference in the Agreement to the position of co-delegate but went on to say that there was no difference between the position of co-delegate and delegate. He went on to say that Mr Pickering is granted delegates leave as needed.

[12] Mr Waltis said that he relied on his conversation with Mr Caunt to form an entitlement to a telephone allowance but agreed that there is no entitlement to such an allowance in the Agreement. He denied that the allowance had nothing to do with his role as a Linfox employee.

[13] Nothing of significance to my decision making arose in re-examination.

E Pickering

[14] Mr Pickering gave sworn evidence and adopted a witness statement 2. He is a member of the TWU and is employed by Linfox at Chullora. He is currently the TWU co-delegate and in that role: “I use my personal phone to make calls to Linfox, for example I make many calls to Robert Dalton (HR Manger) with whom I discuss issues on the site. I also call and receive calls from other TWU members on the site to discuss various industrial issues.” Prior to becoming co-delegate, Mr Pickering was the delegate from 2004-2006.

[15] In 2009, he was issued with a warning due to a large phone bill he accumulated in June 2009 whilst using a truck phone. Subsequently, he was questioned further about his phone use and received a second warning letter in August 2009.

[16] “After the 3 meetings about the overuse of the in truck phone Linfox told me that they would consolidate the warning letters to one single warning. Despite making this representation, I was never handed a warning letter. I decided to chase up Linfox for a copy of the warning letter because I was deciding whether I wanted to challenge it.”

[17] “In late 2009, I attended a meeting with Gaylynne Neil (National HR Manger) and Paul Caunt to discuss the issue. In that meeting, Linfox proposed a ‘phone allowance’ so that the TWU delegates on site would use their own phones rather than the truck phones. I did not bring the idea up, it was entirely Linfox’s idea. Linfox told me that the warning letter would not stand.”

[18] “Since the time I began receiving the phone allowance, all of the site managers and other staff communicate with us on our personal phones. So for example, if they need to get in touch to inform us about overtime, or other pressing issues, they will call me on my personal phone. Linfox staff do not really use the truck phones to communicate all that much.”

[19] “Since 2009, the Chullora site has been through two major enterprise agreement negotiation periods. One in 2010-11 and one in 2013-14. During the entire period, there has been no mention of taking the phone allowance from the TWU delegates at Chullora, and I have conducted myself during those negotiations expecting that I will continue to receive the allowance. In my view, during that time, at least on the Chullora site, management have accepted the phone allowance is part of the TWU delegate on sites entitlements.”

[20] “In or around September 2014, Robert Dalton approached John Waltis (TWU Delegate) and me and told us that he wished to take away the phone allowance. He also stated that it wished to take away a laundry allowance of one of our co-workers, Sam Vella. Robert asked us to provide an explanation about why we should keep it. We said that nothing had changed to justify taking it away and that Linfox needed to justify why we should be deprived of an employment benefit.”

[21] In cross-examination, Mr Pickering said that he is a TWU delegate at Chullora. He was questioned at length in relation to his use of truck phones and I have paid regard to the detail of the exchanges on that subject.

[22] Nothing of significance to my decision making arose in re-examination.

S Vella

[23] Mr Vella gave sworn evidence and adopted a witness statement 3. He is a member of the TWU employed by Linfox at Chullora. He had previously worked for Dairy Farmers and his employment was subsequently transferred to Linfox when Dairy Farmers decided to outsource its milk transport business.

[24] Mr Vella said that when he first started at Dairy Farmers in 1985, he was paid a dry cleaning allowance of $3.90 per week pursuant to the Milk Treatment etc and Distribution (State) Award (the Milk Award). He was the only driver to transfer from Dairy Farmers to Linfox and was told by a Mr T Quinell, a Linfox senior manager, that he would retain all of his entitlements when he transferred. He then continued to be paid the allowance and assumed that this would be permanent. However, in mid 2014 he was told that the allowance would be removed and that occurred some time later.

[25] Mr Vella went on to say that in mid-2014, an offer was put on his behalf to Linfox to settle the dispute over the allowance by the payment to Mr Vella of the equivalent of one year’s payment of the allowance. Linfox declined that offer.

[26] In cross-examination, Mr Vella agreed that he was covered by the Milk Award whilst working at Dairy Farmers and that the award provided for a laundry allowance. He further agreed that he relied on his conversation with Mr Quinnell to establish his belief that he was still entitled to a laundry allowance when he transferred from the work at Dairy Farmers.

[27] Mr Vella said that he presumed he would continue to receive the allowance even though he stopped carting milk during the 1990s.

[28] In re-examination, Mr Vella said that he had asked Mr Quinnell whether he would lose anything by transferring from Dairy Farmers and was told that he would not. He presumed that this meant he would keep his laundry allowance.

Linfox

B Verlander

[29] Mr Verlander submitted a witness statement 4. He was not required for cross-examination. He is the National Manager Network Optimisation for the Linfox Linehaul business unit based in West Melbourne, Victoria. He is responsible for the Chullora site.

[30] Mr Verlander went on to say that on or about 15 April 2014, the Company conducted a payroll audit at Chullora “which revealed anomalies in the payroll which were referred back to me to be addressed. Specifically, that audit identified that Sam Vella was receiving a dry-cleaning allowance and Messrs Waltis and Pickering were receiving a phone allowance.”

[31] The linehaul business has some 440 employees nationally and Mr Vella was the only employee receiving a dry cleaning allowance. Only Mr Waltis and Mr Pickering were “receiving a phone allowance in circumstances where Linfox provides a phone in the vehicle they operate.”

N Leon

[32] Mr Leon submitted a witness statement 5. He was not required for cross-examination. He is an in-house lawyer employed by Linfox and was previously the Workplace Relations Manager for New South Wales and Queensland.

[33] Mr Leon said that he is not aware of any Linfox employees receiving a dry-cleaning or uniform cleaning allowance and is not aware of any TWU delegates receiving a phone allowance.

W Irvine

[34] Mr Irvine gave sworn evidence and adopted a witness statement 6. He is the Sydney Branch Manager based at the Chullora site and is responsible for the Sydney-based linehaul operations.

[35] Mr Irvine says that he conducted a payroll audit at Chullora in April 2014 and thereby discovered that Mr Vella was receiving a dry cleaning allowance of $4.60 per week and that Mr Pickering and Mr Waltis were each receiving a phone allowance of $11.54 per week. His statement continues with the detail of subsequent discussions with the TWU and the affected employees and the later discontinuance of the allowances. Much of that material is dealt with elsewhere in this decision and I will not repeat it here. In addition to that material, Mr Irvine says:

“As an alternative to the allowance, I have offered to unlock Mr Waltis’ phone if he provided me with a list of phone numbers that he needed to call. Mr Waltis declined this offer.”

[36] Mr Irvine said that he was part of the decision making process in the withdrawal of the laundry allowance from Mr Vella. He went on to say that he was aware of the status quo provisions in the Agreement but this did not affect the decision to cease paying the allowance.

[37] Nothing of significance to my decision making arose in re-examination.

Written submissions

[38] Both parties filed written outlines of submissions prior to the hearing 7.

The TWU

[39] Submissions from the TWU argue that the removal of the telephone and laundry allowance (the allowances) is not compliant with clause 5 of the Agreement, which states:

“5. Custom and Practice

5.1 This Agreement is not intended to, nor shall it, alter a custom and practice applicable to the parties.

5.2 It is the intention of the parties to this Agreement to, during the Term, attempt to reduce to writing any custom and practice applicable to Linfox and the Employees.

5.3 The parties will review and where agreed create a local agreement arising from the custom and practice in accordance with Clause 34.

5.4 Any dispute about the operation of this clause is to be dealt with in accordance with the disputes procedure in this Agreement.”

[40] Clause 34 of the Agreement states:

“34. FACILITATIVE CLAUSE FOR FURTHER AGREEMENTS AND LOCAL MATTERS

34.1 If, during the life of this Agreement, a new local matters agreement is made or changes are required in respect of existing local agreements made under this clause, the new local agreement o changes to existing local agreements must be agreed between the parties. The new agreement or changes must be agreed to by:

(a) a majority of Employees at the specific worksite; and
(b) the TWU (agreement is to be indicated by the signature of the relevant branch secretary).

34.2 In the event that it is proposed that a local workplace agreement depart from or effectively vary a term of this Agreement, the parties will comply with the requirements of the Act in relation to variation of agreements. The agreement will not come into effect until such compliance is complete and the variation commences operation.”

[41] “Here, the term that needs to be considered is an express term in an enterprise agreement, not an asserted implicit term in an employment contract. Therefore the Commission does not need to consider whether the term ought to be implied or imported into the contract, it already is a term employment relationship by means of its express inclusion in the Agreement. The TWU submits that inclusion of a custom and practice term into the Agreement demonstrates an intention of the parties to accept all existing customs and practices into the employment relationship making them legally binding without the need for implication through the traditional common law means. The inclusion of such a term would be nugatory if this were not the case as an implied term has the force of law regardless of whether such a clause is included in an enterprise agreement.”

[42] The submissions go on to argue that the allowances have been in place for some considerable time, and during that time two new agreements have been negotiated between the parties without the allowances coming into question. “The practice of paying the Allowances had become so ingrained that it just went without saying that it would be paid. It had well and truly become a custom.”

[43] “The only way to remove the Allowances would have been to seek, and achieve, the agreement of the Workers prior to taking it off them. Without such agreement, the TWU submits that it is not open to Linfox to unilaterally remove a condition of employment.”

[44] “If the Commission finds it is not an express term of the contract of employment, the phone allowance should be implied into the contract of employment between Messrs Waltis and Pickering and Linfox. Mr Vella’s laundry allowance is the same. He changed contracts and therefore work locations and duties many times. Each new contract created a new employment contract between Mr Vella and Linfox. Each time a new contract was created, the laundry allowance continued to operate and exist. It is therefore perfectly reasonable to imply this term into Mr Vella’s contract of employment.”

[45] The TWU further relies on clause 33.4 of the Agreement (Settlement of Disputes Procedure) which says:

“33.4 Until the matter is resolved by agreement, conciliation or arbitration, the Status Quo shall prevail. No party is to be prejudiced as to the final settlement by the continuance of work in accordance with this procedure.”

[46] In relation to clause 33.4 of the Agreement, the TWU submits that Linfox is obliged to continue to pay the allowances until the dispute is resolved by the Commission.

[47] The following determinations are sought:

“a. The Allowances are payable by way of the operation of clause 5 of the Agreement; or

b. In the alternative, the Allowances are payable as they are an implied term of the respective workers contract of the employment [sic]; and

c. Linfox was obliged to pay the Allowances in the period in which the matter remained in dispute.”

Linfox

[48] Submissions from Linfox quantify the allowances as being $11.54 each per week to Mr Waltis and Mr Pickering and $4.60 per week to Mr Vella.

[49] The Company continues that there is no basis for the payment of these allowances and Linfox was entitled to cease such payments. The Company claims that a proper reading of clause 5 of the Agreement makes it “clear that clause 5 was directed at unwritten local matter agreements in existence at site level with a view to, after reaching agreement on the meaning of the local matter, reducing those local matter agreements to writing. In addition, clause 5 does not impose an obligation on Linfox but rather it states that the custom and practice is not displaced simply by the operation of the Agreement.”

[50] Linfox denies the existence of any relevant custom and practice and says that the phone allowance paid to Mr Waltis and Mr Pickering is not a matter pertaining to employment relationship.

[51] The submissions then go on to deal sequentially with the laundry allowance and the telephone allowance. In relation to Mr Vella’s allowance, Linfox submits that the allowance became payable to Mr Vella by the operation of the Milk Award under which he was working when employed driving trucks for Dairy Farmers. When Mr Vella left Dairy Farmers, he was offered employment at another site, working under the Transport Industry (State) Award. That award does not provide for an allowance for the cleaning of uniforms. Mr Vella was then transferred to the Chullora site where Linfox continued to pay a laundry allowance to him “through inadvertence”. The Company then went through a process of asking Mr Vella to ‘show cause’ as to whether there was any entitlement to such an allowance. This process commenced on 16 May 2014 and the allowance was discontinued on 15 September 2014.

[52] The submissions go on to deal with the phone allowance paid to Mr Pickering. Linfox says that Mr Caunt authorised the payment of phone allowance in December 2009. “The payment of the Phone Allowance was not grounded in any entitlement and the decision taken by Mr Caunt was his own.”

[53] “The vehicles operated by Messrs Waltis and Pickering are all fitted with working truck phones which are pre-programmed to allow the employees to call the phone numbers which may be called. All of the phone numbers which an employee may be required to call as part of his or her duties required for Linfox requires its employees used by these employees performing Linfox work are programmed into the phones. Calls to ‘external’ phone numbers, that is, phone numbers not required to perform Linfox duties are blocked. The truck phones receive calls from all phone numbers.”

[54] Following a payroll audit in April 2014, the company determined that the payment of a phone allowance was not appropriate “in circumstances where truck phones were provided. Further, it was considered inappropriate to pay these employees an allowance to perform, in effect, TWU Business in circumstances where no other employees, in this situation, received such an allowance.”

[55] Linfox then wrote to Mr Pickering to ‘show cause’ why the allowance should not be discontinued. It later discontinued the payment of a phone allowance on 5 September 2014 and ceased paying the allowance on 15 September 2014. The submissions go on to deal with the phone allowance paid to Mr Waltis. Linfox says that Mr Waltis was given notice that the allowance was to be discontinued on 15 September 2014 but, due to an administrative error, it was not discontinued until late October 2014.

[56] The submissions continue to examine the custom and practice question. Linfox argues that the TWU has not put forward any evidence sufficient to imply an entitlement to the allowances into the employment contracts of Mr Vella, Mr Waltis and Mr Pickering. Linfox also addresses a question of the status quo provisions in clause 33.4 of the Agreement and I have paid regard to that material.

[57] The submissions then argue that clause 33 of the Agreement and s.739 of the Act limit the powers of the Commission as the allowances are not a question ‘about the Agreement’ and also not a question about ‘the employment relationship’, “as the allowance does not pertain to the relationship between the employer in its capacity as employer and employee in his capacity as employee; rather the allowances are paid in furtherance of their roles as TWU delegates.”

[58] “Whilst Linfox concedes that the disputes procedure may deal with matters outside of the Agreement and the NES it follows that a dispute must still relate to a Permitted Matter when dealing with a grievance or dispute between an employee and Linfox.”

Oral submissions

[59] Both parties made supporting final oral submissions and I have paid regard to that material, which largely re-works the arguments put in the outlines of submissions summarised earlier in this decision.

Conclusions and Determinations

[60] In reaching my conclusions and determinations, I have paid close regard to all of the evidence, written and oral submissions and the materials and documents tendered by the parties. Where I have not referred specifically to particular evidence or a particular document, it has still formed part of my consideration. This also applies to the case law cited by the parties.

[61] I first turn my attention to the laundry/dry cleaning allowance which was being paid to Mr Vella.

[62] Mr Vella first received the allowance when his employment was covered by the Milk Award. Clause 18 (Protective Clothing) of that award provides at subclause (iii) that: “Where an employee is required to wear a uniform, it shall be provided by the employer. The uniform shall be laundered at the employer’s expense or, alternatively, the employee paid a laundry allowance of as set out in Item 12 of Table 2 of this award.”

[63] Item 12 of Table 2 of the Milk Award provides the quantum of the allowance. Apparently, at the time Mr Vella was employed under that award the allowance was $3.90 per week. The Agreement has no provisions relating to either uniforms or any associated allowance.

[64] It is uncontested that when Mr Vella left work at Dairy Farmers the laundry allowance somehow continued to follow him. Mr Vella maintains that Mr Quinnell (see paragraph 24 above) told him that all his entitlements would remain with him when he transferred from Dairy Farmers. However, it became apparent in cross-examination that much of Mr Vella’s understanding in relation to the allowance was based on a ‘presumption’. That transferring ‘entitlements’ included the laundry allowance.

[65] Allowances such as that received by Mr Vella pursuant to the Milk Award are paid as a reimbursement to an employee for an expense incurred in relation to their employment. In my view, Mr Vella’s allowance lapsed when he left Dairy Farmers. It was only an entitlement while the terms of his employment mandated its payment. Why Linfox continued to pay it for so long after that is inexplicable. However, the Company was fully entitled to cease paying the allowance to Mr Vella when it discovered its error and I so determine. That part of the TWU’s application is therefore dismissed. However, I cannot let this matter rest without further comment. Mr Vella’s witness statement evidence that he offered to settle the dispute by way of a payment to him by Linfox of the equivalent of twelve months of allowance payments (a grand total of some $240) would appear to me to have been a most reasonable offer when considering how long Linfox had been paying him the allowance after the legal need to do so ended. However, it is not my role in the case before me to determine what is equitable between the parties but rather to determine the dispute and the obligations of the parties.

[66] I now turn to the phone allowance question relating to Mr Waltis and Mr Pickering.

[67] There is no dispute that in December 2009 both Mr Waltis and Mr Pickering began receiving a phone allowance from Linfox and that payment of the allowance was initiated by the then Branch Manager at Chullora, Mr P Caunt. Linfox has now discontinued payment of the allowance to Mr Waltis and Mr Pickering on the grounds set out in its written submissions, summarised above. The TWU relies, primarily, on the provisions of clause 5 of the Agreement. It is useful repeating the terms of clause 5:

“5. Custom and Practice

5.1 This Agreement is not intended to, nor shall it, alter a custom and practice applicable to the parties.

5.2 It is the intention of the parties to this Agreement to, during the Term, attempt to reduce to writing any custom and practice applicable to Linfox and the Employees.

5.3 The parties will review and where agreed create a local agreement arising from the custom and practice in accordance with Clause 34.

5.4 Any dispute about the operation of this clause is to be dealt with in accordance with the disputes procedure in this Agreement.”

[68] As a threshold issue, Linfox argues that the phone allowance did not arise as an entitlement but rather from the personal decision of Mr Caunt. It further argues that the allowances are not about a permitted matter (see paragraph 57 above). Accordingly, the Company argues that it is beyond the Commission’s jurisdiction to deal with the question. Firstly, I will deal with the jurisdictional objection.

[69] Clause 80.4 of the Agreement (Union Recognition and Delegates’ Rights) provides:

“80.4 All duly elected TWU site delegates shall be recognised by management as representatives of TWU members.”

[70] Clause 85 of the Agreement (Union Delegates Function) provides:

“85. UNION DELEGATES FUNCTION

85.1 Linfox acknowledges, and will in no way hinder, the following functions of a TWU delegate:

(a) to be approachable and helpful to Employees in the workplace;
(b) to provide up to date and relevant TWU information to TWU members in the workplace; and
(c) to represent the TWU members fairly and accurately in negotiations and in relation to individual grievances.”

[71] It is obvious that the phone allowances were provided to Mr Waltis and Mr Pickering by Mr Caunt to facilitate their roles as delegates. Such roles are an integral part of the operation of the Agreement and as such, the payment of the allowances would be a permitted matter. Linfox appears to be arguing that the allowances only facilitate dealings on behalf of the TWU but in reality the role of delegates also involves direct dealings with the Company over the application of the Agreement. Accordingly, I dismiss the Company’s jurisdictional objection. Here I wish to note that if I were to uphold the objection then clauses such as clause 84 (Delegates Leave and Training) would also need to be held to be non-permitted. For example, clause 84.2 provides: “Linfox shall provide five days per annum per TWU delegate plus an additional two consecutive days for each State’s annual TWU conference.”

[72] I also wish to deal with the question of Mr Pickering’s delegate status. Mr Pickering styles himself as a ‘co-delegate’ and Mr Baroni submitted that this, in effect, means that Mr Pickering was not actually a full or ‘real’ delegate. Mr Pickering’s self description as a ‘co-delegate’ is of no importance. It is apparent to me that he is considered to be a delegate by the TWU and in practice by the Company by way of such matters as being allowed to access the leave provided for in clause 84 of the Agreement. In addition, clause 80 of the Agreement clearly refers to site delegates in the plural. If the TWU does not utilise Mr Pickering’s services to the extent that it does those of Mr Waltis, that does not affect Mr Pickering’s delegate status. Mr Pickering is not a deputy delegate.

[73] In or around December 2009, Mr Caunt, the then Branch Manager at Chullora, initiated the payment of a phone allowance to Mr Waltis and Mr Pickering to facilitate their roles as TWU delegates and to resolve problems that had arisen from the use of truck phones. The allowances were removed as the result of an audit conducted by Linfox in 2014. In this regard, I accept the evidence of Mr Waltis and Mr Pickering as being reliable and the Company has not brought forward any evidence to contradict them as to the genesis and purpose of the allowances.

[74] The Agreement, at clause 5 in particular, acknowledges the existence of instances of ‘custom and practice’ between it and employees covered by the Agreement This is a quintessential instance of a local ‘custom and practice’ arrangement initiated by a manager with authority to authorise payment of the allowances at a local level. Mr Caunt’s initiative created a local arrangement at Chullora whereby Mr Waltis and Mr Pickering were to receive phone allowances. Clause 5 makes it clear that such local arrangements cannot be altered unilaterally and this is reinforced by the terms of clause 34 of the Agreement. Disputes about the operation of clause 5 are to be dealt with through the Agreement’s disputes procedure.

[75] I therefore determine that the allowances which were being paid to Mr Waltis and Mr Pickering should not have been removed by Linfox in the way that the Company did. The existence of the allowances may have come as a surprise to senior Linfox management but that does not constitute a reason to remove them unilaterally. The allowances should be restored from the date they were removed. In making this determination, I wish to also make it clear that my decision has no wider application beyond the particular circumstances of Mr Waltis and Mr Pickering and has no precedent value. Should either Mr Waltis or Mr Pickering cease at any time to be TWU delegates then the allowances would automatically cease at the same time. The allowances would not transfer to any new delegate or delegates.

COMMISSIONER

Appearances:

T Warnes for the Transport Workers’ Union of Australia.

M Baroni for Linfox Australia Pty Ltd.

Hearing details:

2015.

Sydney:

March 24.

 1   Exhibit TWU 2.

 2   Exhibit TWU 3.

 3   Exhibit TWU 4.

 4   Exhibit Linfox 2.

 5   Exhibit Linfox 3.

 6   Exhibit Linfox 4.

 7   Exhibits TWU 1 and Linfox 1 respectively.

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