C2005/55, Transcript of Proceedings [2005] AIRCTrans 1141 (16 May 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11517-1

COMMISSIONER TOLLEY

C2005/55

TRANSPORT WORKERS' UNION OF AUSTRALIA
AND
LINFOX AUSTRALIA PTY LTD
s.99 - Notification of an industrial dispute
(C2005/55)

MELBOURNE

10.01AM, WEDNESDAY, 20 APRIL 2005
PN1
MS A RICHARDS: I appear on behalf of the Transport Workers' Union of Australia.
PN2
MR D NORTH: I appear on behalf of Linfox Australia.
PN3
THE COMMISSIONER: Mr North. Yes, Ms Richards?
PN4
MS RICHARDS: Thank you, Commissioner. This application relates to a dispute between the Transport Workers' Union of Australia and Linfox in relation to sub clause 27.3 of the Transport Workers' All Distribution Award 2001. I have got a copy of that to hand up if you require.
PN5
THE COMMISSIONER: Thank you.
PN6
MS RICHARDS: If I could just basically summarise the dispute, Commissioner. The dispute relates to the application of that clause 27.3, sick leave, 27.3(1). The history of the dispute relates to how this entitlement has been paid. My understanding was that up until sometime in 2002, Linfox applied this clause as if the entitlement was automatic. So, for example if you take this clause then 35 hours personal leave per year would accumulate at the start of that year's service and it would not be pro rata-ed.
PN7
My understanding was that there has been an introduction of a new payroll system in Linfox and as a result from sometime in 2002 they have sought to change the way that they interpret and pay sick leave and have sought for it to be paid on an accrual basis, I think, at the rate of 1.16 hours per week of service. The issue relates to that clause and the Transport Workers' Union says that that is a, that clause provides that it is an automatic entitlement for the sick leave component of personal leave and my understanding is that the company is supporting the view that the clause does not state that it is automatic entitlement and I think they are seeking to rely on an accumulation type provision.
PN8
Further, I would like to hand up, if the Commission pleases, a decision from the New South Wales Industrial Commission handed down in 2003, I think, in court session. The decision relates to an application made by the union on the same factual situation relating to a clause which is almost identical.

EXHIBIT #A1 DECISION MADE BY NEW SOUTH WALES COMMISSION

PN9
MS RICHARDS: Yes. This decision relates to a clause of the Transport Industry State Award so it is a State Award of New South Wales and if the Commission pleases you will see that the New South Wales Commission found in favour of our interpretation that a clause similar to that one that we are referring to today was an automatic clause and hence did not provide for accumulation. So we would be seeking to rely on that decision which means I have got similar, the same factual situation and obviously both parties were a party to that award and that decision so we seek to rely on that. If the Commission pleases.
PN10
THE COMMISSIONER: Thank you. Mr North?
PN11
MR NORTH: Thank you, Commissioner. We have had discussions with the Transport Workers' Union regarding the interpretation of this clause. Certainly it is Linfox's present position that an instant entitlement upon the anniversary date of employment does not occur pursuant to clause 27 of the award. Having had discussions with Ms Richards we have agreed to a conference before you and other than that, Commissioner, we would seek your assistance in that conference if you were so minded at this point in time. If the Commission pleases.
PN12
THE COMMISSIONER: I am loath to do anything that overturns a decision of a court of record which is what the New South Wales Industrial Commission in court session is. It is a court of record when it comes to interpretation. So I hope you are not going to ask me to try and do that, both of you?
PN13
MR NORTH: At this point in time, Commissioner, I believe that it was the intention of Linfox and the TWU simply to ask your assistance in resolving any issues that we presently have and not at this stage to make in determination a contradiction of that decision, Commissioner. If the Commission pleases.
PN14
THE COMMISSIONER: The Commission will adjourn into conference.

<NO FURTHER PROCEEDINGS RECORDED

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 DECISION MADE BY NEW SOUTH WALES COMMISSION PN8