Transport Workers' Union of Australia v Linfox Australia Pty Ltd
[2016] FWC 908
•10 February 2016
[2016] FWC 908
DECISION
| Fair Work Act 2009 | |
| s.739—Dispute resolution | |
| Transport Workers’ Union of Australia | |
| v | |
| Linfox Australia Pty Ltd | |
| (C2015/3952) | |
| COMMISSIONER ROBERTS | SYDNEY, 10 FEBRUARY 2016 |
Application to deal with a dispute - status of site-specific custom and practice arrangements -
work on public holidays.
[1] This decision concerns an application made by the Transport Workers’ Union of
Australia (the TWU) on 14 May 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).
[2] 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). That agreement was approved on
14 February 2014 and has a nominal expiry date of 31 December 2017.
[3] 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 sub-clauses (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. There is no dispute between the parties that the Commission has jurisdiction to deal
with and determine the application.
[4] In its Form F10 - application for the Commission to deal with a dispute in accordance
with a dispute settlement procedure - the TWU characterised the dispute between itself and
Linfox in the following terms:
“1. Linfox Australia Pty Ltd (Linfox) is a major transport and logistics company engaged in business in the road transport and distribution industry. As part of that business it employs truck drivers that are members of the Transport Workers’ Union of Australia, NSW Branch (TWU). [2016] FWC 908
2. One of Linfox’s sites is based at Erskine Park. This particular site serves the contract that Linfox has with National Foods.
3. The employment relationship is governed by the Linfox and Transport
Workers’ Union Road Transport and Distribution Centres Agreement 2014
(the Agreement).
4. For approximately 10 years, the drivers on night shift (beginning at 10pm) at
Erskine Park were rostered on, and paid for public holidays, in the following
manner:
(a) If the start of the shift fell on the day before a public holiday, then that shift would be paid at public holiday rates as per the provisions of the
Agreement; and
(b) The shift that started on the day of the public holiday (10pm on the public holiday), the worker would be allowed the entire shift off.
5. Commencing 2015 on Australia Day, Linfox decided to change this practice.
The new practice involves the following rostering and payment methods:
(a) If the start of the shift fell on the day before a public holiday, then the worker would be allowed to have that shift off; and
(b) If the start of the shift fell on the day of the public holiday, then the worker would have to work the shift, and would not be paid any
penalty rates as the bulk of the shift fell on a day which was not a
public holiday.
6. Under s.114 of the Act, an employee is entitled to be absent from their
employment on a day that is a public holiday.
7. Under clause 5 of the Agreement, a custom and practice is not altered by the
provisions of the Agreement. The longstanding nature of the treatment of
public holidays has become a custom and practice that exists between the
parties.
8. Under clause 33, the status quo must prevail once a matter is in dispute
between the parties. Despite the matter being put in dispute by the
TWU Delegate on site, Linfox unilaterally changed the way it treated public
holidays for the shift workers. Linfox ought to have maintained the same
system of rostering and payment until the dispute was resolved.
9. The parties have engaged in discussions in an attempt to resolve the matter but
they have been unsuccessful. The TWU seeks the assistance of the
Commission to resolve this ongoing dispute between the parties.”
[2016] FWC 908
[5] The relief sought by the TWU in its application is:
“1. A determination that Linfox lawfully had to maintain the past practice of paying and rostering public holidays until the dispute between the parties was resolved. 2. A determination that the past practice of paying and rostering public holidays
is a custom and practice for the purposes of clause 5 of the Agreement and
therefore should remain unchanged absent agreement from both parties.”
[6] The relevant Modern Award is the Road Transport and Distribution Award 2010
(the Award.) Unsuccessful conciliation was conducted before me on 12 June 2015 and was
followed by private negotiations between the parties. Those private negotiations were also
unsuccessful 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 for filing and service of
outlines of submissions, witness statements and other materials. The matter proceeded to
hearing in Sydney on 27 October 2015. At the hearing, the TWU was represented by
Mr T Warnes, with Mr J Mitchell. Linfox was represented by Mr R Dalton, with Mr B Byrne.
Evidence
The TWU
J Mitchell
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| [7] | Mr Mitchell gave sworn evidence and adopted a witness statement | . He also adopted a |
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| reply statement in response to the evidence of Mr Reilly | . Mr Mitchell is the TWU co- |
delegate at Linfox’s Distribution Centre (the DC) at Erskine Park, NSW. The DC services the
Linfox contract with Lion Dairy and Drinks. He has been employed at the DC since
November 2009 and currently works the night shift commencing at 10pm and finishing at
6am, Monday to Saturday.
[8] He went on to say that:
“The way that Linfox paid for, and granted leave for, public holidays until 26 January
2015, was to give us the “acknowledged day off” attributable to the public holiday on
the shift that started on the public holiday. So if a shift began at 10pm on the day
before a public holiday, I would work it, and get paid the applicable penalty rate. If the
shift began at 10pm on the public holiday, we were given the shift off as an
‘acknowledged day off’. As far as I know, this treatment of public holidays has been in
place since Linfox bought out Westgate around 8 years ago.”
[9] On 22 January 2015, Mr Reilly (the Site Manager) and Mr D Pickering (Operations
Manager) met with night shift workers and the following exchange occurred:
“Mr Reilly: You will be required to work the shift starting at 10pm on Monday, January 26th and all other shifts starting at 10pm on public holidays as this will no longer be acknowledged as nights shift’s day off for public holidays. We now consider you as a Tuesday to Saturday roster. [2016] FWC 908
Mr Mitchell: No, this is unacceptable to us, and we will be disputing this and be seeking further advice.
Mr Reilly: This is not our call, it is the HR and higher ups. If you don’t come into work on Australia Day, then you won’t be paid.” [10] On 23 January 2015, Mr Mitchell had a conversation with Mr Reilly on the floor at the
DC and the following exchange occurred:
“Mr Mitchell: If you do this you will be breaching the EA and the State and Federal
Award. You need to abide by the status quo until a new arrangement
can be made by mutual agreement or IRC/FWA ruling.
Mr Reilly: I agree with you, but this is a decision by the higher ups and my hands are tied.” [11] Mr Mitchell said that he had a similar conversation with Mr Pickering by phone later
on 23 January 2015.
[12] Mr Mitchell’s witness statement continued:
“On 26 January 2015, I took annual leave so I could spend the day with my family as
I would have been able to under the traditional arrangements. I am aware that Fred
Kitiona (a night shift worker) also took leave. The other two workers on the shift
worked the night shift the Australia Day night.
A few weeks later, a meeting was held with Shane Smith (TWU Delegate), Ken Hurst
(TWU Official), Allan Reilly, Rob Dalton (HR Manager) and Steve (I cannot recall
his last name, he was a senior manager.) In the meeting, Rob and Steve stated that they
were unaware of the change to our shifts and said that they would investigate the issue
surrounding public holidays further in due time. Allan was instructed by Rob and
Steve in the meeting to reimburse leave and public holiday rates for the shift on
26 January 2015.
On around 25 March 2015, I along with the other workers on night shift, were called
into a meeting with Allan Reilly and Dale Pickering. George Jamison (TWU Delegate)
was also in attendance. In that meeting, we were told about how the upcoming Easter
would be treated. The outcome was the following work arrangement:
a. Thursday night shift off for the Good Friday holiday; b. Friday night shift off for the Easter Saturday holiday; and c. Monday night shift was to be worked as normal pay on the Easter Monday holiday night.
[2016] FWC 908
Since Easter 2015, all public holidays have been treated the same as they were in the
Easter period. I have not worked on any of the shifts that I would traditionally have
had off. I have taken leave on each of the days since.
The part of the change that really affects me is the fact that I now have to work on the
night (10pm) of the public holiday. This affects time that I would otherwise have spent
with my family.”
[13] In cross-examination, Mr Mitchell agreed that his employment was governed by the
Agreement, which is underpinned by the Award. He further agreed that there was no
documented agreement varying the Agreement’s provisions in relation to payment for public
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holidays. He characterised it as “just an established practice”.
[14] I have also paid regard to Mr Mitchell’s reply statement to the evidence of Mr Reilly.
A Reilly
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| [15] | Mr Reilly gave sworn evidence and adopted a witness statement. | Mr Reilly is the Site |
Manager at the Erskine Park DC and is “responsible for allocating all resources, including
equipment, facilities and employees, as well as acting as the focal point for communication
between Linfox, our customer Lion Dairy and Drinks, unions, employees and contractors”.
[16] Linfox uses a time and attendance system linked to payroll called KRONOS. In early
January 2015, Mr Reilly inquired of the KRONOS team in relation to the then forthcoming
Australia Day public holiday:
“…asking whether the nightshift employees would need to come to work as they are
rostered to work from 10:00pm on Monday 26 January 2015 as the majority of their
shift falls on Tuesday 27 January 2015...
On 14 January 2015, I received a response from Ms Alleblas who advised that the
nightshift employees are not technically entitled to the Australia Day public holiday
due to their rostered days of work and span of hours are 22:00 hours to 06:00 hours
Monday night to Saturday morning.
Ms Alleblas went onto explain what the employees would be paid if they were not
required to work on the Monday 22:00 hours to Tuesday 06:00 hours shift.
Ms Alleblas also explained that IR (Industrial Relations) had determined that we do
not want to set the example that they are entitled to the public holiday when they are
not…
I understand that this was a change to how the employees had previously been
managed when there was a Monday public holiday and that this would need to be
communicated with the affected employees as the Australia Day public holiday was
coming up.”
[17] He then spoke with affected employees and the TWU delegate, Mr Smith, and advised
them that they would be required to work as rostered on 26 January 2015. The employees
advised him that the matter would be disputed but in the meantime they would work the shift
as directed, but under protest.
[2016] FWC 908
[18] He adopted the same process leading up to the Queen’s Birthday public holiday on
8 June 2015 and the Labour Day public holiday on 5 October 2015.
[19] Mr Reilly went on to briefly reply to aspects of Mr Mitchell’s evidence and denied any
awareness of “any special arrangement being in place” in relation to public holidays.
[20] In cross-examination, Mr Reilly said that when Linfox took over the contract with
Lion Dairy and Drinks from Westgate, it inherited the public holiday arrangements that
existed before the takeover. Mr Reilly went on to say that he assumed that the Linfox payroll
system was designed to accommodate the public holiday arrangements that were in place
prior to Linfox taking over the contract. He further agreed that it was Linfox’s industrial
relations department who decided that the public holiday arrangements would have to change.
Mr Reilly was then asked, “Well, you’re not trying to tell the Commission that that was a
5
mistake, the old arrangement, are you?---No.”
[21] In re-examination, Mr Reilly said that the KRONOS team was separate from Linfox’s
payroll section.
Written Submissions
The TWU
[22] The TWU’s submissions expanded upon those contained in its application (see
paragraph [4] above). However, the relief sought by the Union was re-worded in submissions
to the following:
“a. A determination that the Established Arrangement is a custom and practice attracting the operation of clause 5 of the Agreement; b. In the alternative, a determination that:
i. section 114 applies to the small portion of each public holiday when the night shift workers are required to work under the Changed
Arrangements; and
ii. if an employee works the small portion of the shift on the public
holiday, then that time attracts the penalty rates contained at clause 28.2
of the Award as incorporated into the Agreement.
c. A determination that the status quo prevailed for the time between the commencement and finalisation of the dispute.”
[23] The TWU characterised the dispute between it and Linfox in the following terms:
“Traditionally at the Erskine Park site public holidays were treated for night shift
workers as follows:
[2016] FWC 908
a. If the day on which the shift began was not a public holiday, then the employees would work that shift, and therefore would be paid the
applicable penalty rates contained in the Agreement.
b. If the day on which the shift started was a public holiday, then the employee would be given the shift off, and would be paid for the shift
in accordance with the Agreement and the National Employment
Standards.”
[24] On 22 January 2015, Linfox management at the Erskine Park site informed the night
shift employees that there would be a change to the Established Arrangement. The changed
arrangements would be as follows:
“a. If the majority of the shift fell on the public holiday, then the employee would be given the shift off, and paid for the shift as above. b. If the shift commenced on the public holiday, but only a minority of the shift fell on that public holiday, then the employee would have to work the shift and
it would be paid at the rate applicable for the shift as above.”
[25] The TWU argues that the public holiday arrangements prior to January 2015 were not
the result of any error on Linfox’s part but, rather, were established arrangements which had
been in place for many years. Accordingly, the Union submits that the pre-January 2015
arrangements were an established custom and practice as envisaged by clause 5 of the
Agreement, which deals with that concept.
Linfox
[26] Linfox submits that there is no basis in either the Agreement or the Award for the
TWU’s position and that the pre-January 2015 arrangements did not amount to an established
custom and practice.
[27] “On proper interpretation of clause 5 of the Agreement, when read in context, it is
clear that clause 5 was directed at unwritten local matter agreements in existence at site level
with a view after reaching agreement on the meaning of the local matter, reducing those local
matter agreements to writing.”
[28] At no time has TWU sought to formalise the alleged custom and practice, and the pre-
January 2015 arrangements were “an error in the interpretation of the Agreement” and
“Linfox is entitled to correct identified errors”.
[29] The Company agrees with the TWU that pursuant to s.114(1) of the Act, an employee
may be absent from their employment on a day or part-day which is a public holiday.
Oral submissions
[30] 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.
[2016] FWC 908
Conclusions and determination
[31] In reaching my conclusions and final determination, 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.
[32] The task before me is not to interpret the application of provisions in the Agreement
and Award concerning work on or adjacent to public holidays. My task is to determine
whether the public holiday arrangements which were applied by the Company prior to
January 2015 were an established custom and practice/local arrangement at the Erskine Park
DC or were practices resulting from an error on the part of Linfox or a misinterpretation of the
Agreement and/or Award by Linfox, which it is entitled to correct. For its part, the TWU
relies primarily on the provisions of clause 5 of the Agreement. That clause provides:
“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.”
[33] The evidence of Mr Mitchell and Mr Reilly was consistent regarding the history of this
matter and I accept their evidence as being truthful. In particular, the evidence of Mr Reilly is
important as to that history in that he was employed at the time Linfox took over the Lion
Dairy and Drinks contract from Westgate and he is the Site Manager.
[34] The situation appears quite clear to me. On the evidence of Mr Reilly, Linfox inherited
the pre-January 2015 public holiday arrangements when it took over the Lion Dairy and
Drinks contract. In any event, the arrangements have been in place for at least eight years and
were clearly understood by Linfox management and the affected employees. It was definitely
“a custom and practice applicable to the parties”, to quote clause 5 of the Agreement. It is
further clear that neither side attempted to reduce the arrangement to writing, but that appears
to be common practice, despite the aspirations of sub-clause 5.3 of the Agreement.
[35] In January 2015, Linfox attempted to vary the custom and practice arrangements and
to henceforth apply to the Agreement and Award provisions in relation to public holidays. In
my view and determination, this action was not open to Linfox in the light of the provisions of
clause 5 of the Agreement. There is certainly nothing before me which would convince me
that the application by Linfox of the pre-January 2015 arrangements was the result of either
[2016] FWC 908
an error or a misinterpretation of the Agreement/Award provision. Mr Reilly’s evidence in
cross-examination is clear on this point (see paragraph [20] above).
[36] All in all, I determine that Linfox was not entitled to vary the custom and practice
arrangements relating to public holidays and must revert to its previous practice in this regard,
with effect from January 2015 onwards.
COMMISSIONER
Appearances:
Mr T Warnes appeared for the Applicant
Mr R Dalton appeared for the Respondent
Hearing details:
2015
Sydney
October 27
Printed by authority of the Commonwealth Government Printer
<Price code C, PR576942>
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Exhibit TWU 2
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Exhibit TWU 3
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Transcript PN 144
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Exhibit Linfox 2
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Transcript PN 245
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