Transport Workers' Union of Australia v TNT Australia Pty Limited

[2011] FWA 7739

[2011] FWA 7739

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Transport Workers’ Union of Australia
v
TNT Australia Pty Limited
(C2011/5132)

Road transport industry
DEPUTY PRESIDENT IVES	MELBOURNE, 8 NOVEMBER 2011

Dispute arbitration pursuant to dispute settlement procedure.

[1] This decision represents a slightly edited version of the decision I issued on transcript at a hearing of this matter on 4 November 2011.

[2] This is an application pursuant to section 739 of the Fair Work Act2009 (the Act) for Fair Work Australia to deal with a dispute. The application is in respect of the TNT-TWU Fair Work Agreement 2011 to 2013. That agreement provides, among other things, a disputes procedure providing, subject to its terms, for arbitration by this Tribunal.

[3] No party raised objection to the jurisdiction provided in the agreement to Fair Work Australia and I accept that the jurisdiction exists.

[4] At the conclusion of the examination of witnesses on 3 November 2011 and prior to hearing any final submissions from the parties I provided my preliminary views about this matter based upon all of the materials before me at the time, including the viva voce evidence of the witnesses for both parties. I have now heard the final submissions of both parties and I see no reason to resile in any substantial way from the majority of the views as I recollect having expressed them at the time.

[5] However, I make the following findings based upon the materials and evidence before me now and in replacement for those preliminary views.

[6] Absent any revision pursuant to Attachment 2 of the TNT Express Victoria Metro Enterprise Agreement 2001, Attachment 3 to that agreement continues to apply in its original form and bind the parties. Based upon submissions and evidence of both parties it is my understanding that that finding is uncontroversial.

[7] As a consequence of discussions and ultimate agreement between the relevant parties, Attachment 3 was revised in substance in the latter part of 2009 or early 2010 in accordance with Attachment 2 and in the manner contended by the Respondent in Mr Mackenzie’s Memo of 2 November 2009. That Memo is in the evidence at attachment MM4 to exhibit TNT1 in addition to various other places - save and except Attachment 3 was not revised or amended insofar as Attachment 3 provides for a meeting schedule for the KPI committee and consequences for a failure to hold meetings of that committee.

[8] When one considers the potentially or apparently differing requirements placed upon the review committee alluded to in the 2 November 2009 Memo as opposed to the requirements placed upon the KPI committee referred to in Attachment 3, there is no basis for any finding that the 2 November 2009 Memo requirements necessarily displace the requirements placed on the KPI committee in Attachment 3. I do not intend to go to the wording of the relevant provisions in either Attachment 3 or the Memo. They are there for the parties to go through themselves.

[9] I am fortified in this finding by the evidence generally but in particular by that of Mr Hoey, including from about transcript paragraph number 463 through to 472, and that of Mr Barnes. Mr Barnes confirmed that at no stage, to his recollection, was it raised with the delegates or employees by the Respondent that acceptance of the revised bonus scheme would have the effect of replacing the meeting schedule in Attachment 3 with that provided for in Mr Mackenzie’s Memo.

[10] It is noteworthy that it is not clear from the ‘proposals to be considered’ outlined in the 2 November 2009 Memo that approval or acceptance of the revised scheme necessarily nullifies the meeting schedule and consequences referred to in Attachment 3. It is, however, clear, in my view, from the 2 November 2009 Memo, as well as from other evidence, that acceptance of the revised scheme does have the effect of nullifying the KPIs and targets provided for in Attachment 3. I note that, according to the evidence of Mr Barnes, the 2 November 2009 Memo was posted on notice boards and distributed to relevant delegates prior to acceptance by the employees of the revised scheme.

[11] Given the finding that I have just outlined, it follows and I find accordingly, that Attachment 3 has been revised pursuant to Attachment 2, and perhaps pursuant to sub-clause 9(f) of the TNT Express Victoria Metro Enterprise Agreement 2001 insofar as it provides for particular KPIs and targets.

[12] Attachment 3 has also been revised by the inclusion of provisions additional to those in the original scheme. A specific sliding scale of monetary reward is one example. However, Attachment 3 retains as binding upon the parties the requirements for meetings of the KPI committee on the first and third Tuesday of each month and consequences for failure to hold such meeting or meetings.

[13] As to the question of the proper construction of Attachment 3, specifically in respect of the final sentence, I rely upon my preliminary view on this question expressed. The final paragraph of Attachment 3 provides as follows:

‘These targets will be reviewed by the applicable KPI committee established for each different work group. Each KPI committee, made up of TNT Express employees, TWU representatives and management, will meet on the first and third Tuesday of each month with minutes from each meeting being placed on notice boards on the following Thursday. If a meeting is not held it will be deemed that the target for that period had been achieved.’

[14] When the final sentence in that paragraph is read in the context of the sentence immediately preceding it, it is abundantly clear that the term ‘that period’ in the final sentence refers to the period during which a meeting or meetings were not held.

[15] I am unable to find any ambiguity or uncertainty associated with that interpretation and I rely upon the plain words of the document.

[16] It is not relevant for purposes here that Mr Fennell in his evidence expresses a different view as to the proper interpretation of the term based upon, among other things, his involvement with the particular negotiations leading to agreement. Any interpretation other than that which I have proffered in my view strains the language to an unacceptable degree and cannot be given endorsement.

[17] I find that the substance of Attachment 3 has been amended, to the extent that it now includes different KPIs and targets and specific rewards for achievement as well as a requirement for ‘as needs’ meetings. Other aspects of Attachment 3 provided for in the original document remain as stated in the document, and that specifically is the meeting schedule and consequences provided for in the document.

[18] The final sentence in the document is to be read as requiring that if a meeting is not held it will be deemed that the target for the period during which a meeting or meetings were not held had been achieved.

DEPUTY PRESIDENT

Appearances:

B Baarini for the Applicant.

J McDougall of counsel for the Respondent.

Hearing details:

2011.
Melbourne.
November 2, 3 and 4.

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