C2005/13, Transcript of Proceedings [2005] AIRCTrans 481 (25 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 10559

SENIOR DEPUTY PRESIDENT LACY

C2005/13

s.99 - notification of an industrial dispute

Transport Workers' Union of Australia Transport Workers' Union of Australia-New South Wales Branch
and
Linfox Australia Pty Ltd
(C2005/13)
Transport Workers' (Linfox Bulk Petroleum) Award 2000

MELBOURNE

10.08 THURSDAY, 17 FEBRUARY 2005

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

---

Continued from 02/02/2005

<EXTRACT OF TRANSCRIPT OF PROCEEDINGS [3.30PM]

---

PN1

THE SENIOR DEPUTY PRESIDENT: Sorry I am late back. Yes?

PN2

MR NORTH: Thank you, your Honour. I understand that you are in receipt of our outline of submissions your Honour, and provided that you don't have anything that you wish to clarify, I only seek to re-state Linfox's position, that it was its intention that Christmas would be 25 December as a public holiday and that that was to replace the substituted day as it may appear in an award. It was the intention that where no work was available, that it would be a non-work day where everybody got paid for that day, so we would say that in respect of 25 and 27 December 2004, the 25th should have been paid, everybody should have got paid for the day off, basically and the 27th should have been at the base rate.

PN3

THE SENIOR DEPUTY PRESIDENT: That is just their normal - at the base rate, yes.

PN4

MR NORTH: And that the 27th should have been an ordinary day paid at the common hourly rate. Other than that, your Honour, obviously you will look at the transcripts and see what Mr Allan said and Mr Olthof has said and try and work your way through that. If there is anything - - -

PN5

THE SENIOR DEPUTY PRESIDENT: Could I just ask you this, would you have any objection to me looking at the original file in which the application was made to certify this agreement?

PN6

MR NORTH: I have no objection at all, your Honour.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes. What was my question I had for you? Bear with me for a moment. In relation to your submissions L1, and it is your submission, but it is an agreed position in paragraph 5, which says:

PN8

Linfox consents to arbitration by the AIRC on the basis that it is to determine the true intent and effect of clause 16 of the fuel agreement, based on industrial and commercial merit considerations.

PN9

Now, there is a little bit of tension between the part of the clause or part of the sentence that precedes the words, based on industrial and commercial merits, and those words themselves. If I was to determine the true intent and effect of clause 16, in the normal course, that would be done according to the words themselves and in the event there is some ambiguity by reference to what might have been the presumed intention of the parties. But if I was to take into account industrial and commercial merit considerations, then I may need to have regarded the overall effect, if you like, to call the benefit that is received by the employees or the detriment that might be encountered by the employer.

PN10

MR NORTH: That is acceptable to Linfox, your Honour.

PN11

THE SENIOR DEPUTY PRESIDENT: Is that what was intended between the parties in saying that?

PN12

MR NORTH: That is correct, your Honour. We wanted to basically have it determined on the basis of what the parties intended at the time and in essence, what represents a fair outcome and that would take into account the industrial and commercial merit considerations, your Honour.

PN13

THE SENIOR DEPUTY PRESIDENT: Okay. Is there anything else? There is nothing I didn't - - -

PN14

MR NORTH: Unless you have anything else, your Honour?

PN15

THE SENIOR DEPUTY PRESIDENT: No, thank you.

PN16

MR NORTH: Thank you, your Honour. And I might also add our thanks for assisting us in this matter. If the Commission pleases.

PN17

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes Ms Richards?

PN18

MS RICHARDS: Thank you, your Honour. This is a dispute about the interpretation of clause 16 of the Mobil Agreement. What I have to hand up, and I have already provided a copy to my learned friend, is a summary of what we say is the TW claim and the Linfox alternative claims. It may assist the Commission by providing a documented table.

PN19

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN20

MS RICHARDS: We say that clause 16 should be interpreted to provide that on 25 December 2004, it was a non-work day that paid the base rate. The rationale for this reasoning, we say is that the EBA at clause 16 clearly and unambiguously provides:

PN21

Christmas day and Good Friday shall be non-work days paid at the base rate.

PN22

Further, we submit that work was not available on 25 December, as no work was allocated by Linfox customers for that day. We also submit the work is not available as Linfox did not have any customer orders and the work of the Linfox drivers is primarily to distribute petroleum to Mobil customers under the Mobil Distribution Contract.

PN23

With respect to 27 December 2004, we submit that this is a public holiday, and if not rostered to work, employees will be paid at the base rate. If rostered to work, but no work is available, they would be paid at the common hourly rate and if work is performed, paid at the base rate plus double time for the first seven hours and triple time thereafter. I would like to also bring the Commission's attention to what I think I previously stated that our claim was, after the seven hours, for base rate plus triple time. I have reviewed our submissions and we would like to submit now that it is triple time thereafter, and that is what the EBA refers to.

PN24

THE SENIOR DEPUTY PRESIDENT: Sorry, triple time, not - - -

PN25

MS RICHARDS: No, we submit that the EBA clearly provides triple time, so triple time thereafter.

PN26

THE SENIOR DEPUTY PRESIDENT: Yes. So it is not base rate plus triple time, it is just triple time?

PN27

MS RICHARDS: That is correct, your Honour. Our rationale for this reasoning is that the EBA does not list which public holidays as we provided for, so therefore reference must be made to the award, clause 30.2.1, the situation in 2004 which provides:

PN28

When Christmas day is a Saturday or Sunday, a holiday in lieu thereof shall be taken on 27 December.

PN29

The EBA provides at clause 16:

PN30

The rates of pay for public holidays shall be as follows - - -

PN31

THE SENIOR DEPUTY PRESIDENT: Just before you go on, sorry.

PN32

MS RICHARDS: That is fine.

PN33

THE SENIOR DEPUTY PRESIDENT: Clause 30, do you have that there?

PN34

MS RICHARDS: Yes.

PN35

THE SENIOR DEPUTY PRESIDENT: Clause 30.1 says:

PN36

Employees on weekly hiring.

PN37

And that is the nature of the hiring is it? The employees we are talking about?

PN38

MS RICHARDS: Yes.

PN39

THE SENIOR DEPUTY PRESIDENT:

PN40

Shall be entitled to the following public holidays without loss of pay.

PN41

Now, that effectively defines Christmas day as a public holiday, doesn't it?

PN42

MS RICHARDS: That is correct. You are referring to clause 30.1.1, your Honour?

PN43

THE SENIOR DEPUTY PRESIDENT: I am, yes, sorry.

PN44

MS RICHARDS: Then we submit that 30.2.1 provides that substitution is capable in situations where Christmas day falls on the weekend. We also seek to rely on 30.5 which articulates what rates of pay would be payable on a public holiday.

PN45

We say the EBA in clause 16 provides:

PN46

The rate of pay for public holidays shall be as follows:

PN47

Vehicle Operators -

PN48

These are the one on the common hourly rate system and it is our understanding that all employees are covered by this EBA and are employed under the common hourly rate system.

PN49

The rates of pay for public holidays shall be as follows:

PN50

Vehicle Operators not rostered to work to be paid at the base rate, rostered to work but no work available should be paid at the common hourly rate, where work is performed on a public holiday, payment shall be as follows:

PN51

Payment shall be at the base rate plus double time for the first seven hours and triple time shall apply for work performed thereafter.

PN52

In relation to Linfox's claims, we summarise that their submissions are that basically either day can be the public holiday, but not both. For Christmas holiday to operate as a non-work day, the condition is that work must not be available, there was a pre-condition for the non-work day.

PN53

THE SENIOR DEPUTY PRESIDENT: Is there a definition of non-work day in the agreement or the award?

PN54

MS RICHARDS: I would need to seek further clarification, but my understanding is that I don't think so, your Honour.

PN55

THE SENIOR DEPUTY PRESIDENT: Sorry?

PN56

MS RICHARDS: My understanding is I don't think so.

PN57

THE SENIOR DEPUTY PRESIDENT: No.

PN58

MS RICHARDS: It is uncontested that work was available and worked on 27 December 2004. Linfox says work is available on 25 December, this was evidence given by Mr Tony Olthof, and notwithstanding the fact that employees are historically not rostered to perform work, that work is - sorry, excuse me. They say that work is available on 25 December, notwithstanding the fact that employees are historically not being rostered to perform work. They say that work is not limited to driving work. If the Commission agrees that work was available, then we submit the logical conclusion is that the Christmas day clause would never operate because work is available. This goes against both parties' submissions that Christmas day was supposed to be a sacred day.

PN59

So, if work is available and Christmas day is not considered to be a non-work day, we would submit that the logical conclusion would be that Christmas day would be just considered a normal public holiday, whichever day the Commission decides is the public holiday, like all others.

PN60

So, if it is just considered a normal public holiday, we would submit that you will need to look at the EBA to find out how public holidays are generally treated. The EBA provides that if not rostered to work, it won't get paid at the base rate. If employees are rostered to work on a normal generic public holiday which some drivers were in 2004, and because work is available, which is what Linfox submits, then employees should have been required to work. This goes against the notion of Christmas holiday historically being a sacred day in the oil industry, and further being compelled to work on this public holiday would go against community standards.

PN61

We submit our interpretation does not provide drivers, through in effect, to receive two Christmas day holidays in 2004. We submit the Christmas day is clearly specified to be a non-work day and the agreement read in conjunction with the award, provides for a Christmas holiday, only one, to be observed on 27 December 2004.

PN62

We see that this as a small, but important distinction. If the Commission pleases.

PN63

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Richards. Mr North, did you wish to say anything to follow?

PN64

MR NORTH: Just a couple of things, your Honour. We would seek to draw a distinction between what has been allocated by the customer and work being available. Work might not necessarily be rostered, but in the natural course of the rostering system, people do appear on a roster for 25 December - - -

PN65

THE SENIOR DEPUTY PRESIDENT: What do you mean by work being allocated, by the way, sorry? Who allocates the work?

PN66

MR NORTH: Well, work would be allocated by Linfox to its drivers. Whether or not work is allocated by our customer to Linfox is a different matter again. So there may be other work available in the yard on the day, for example, blackening tyres, safety checks and the like.

PN67

THE SENIOR DEPUTY PRESIDENT: Which is normally done by drivers, is that what you are saying?

PN68

MR NORTH: Well drivers do have responsibility for their vehicles being in safe working order, your Honour, so that is something that is regularly done.

PN69

THE SENIOR DEPUTY PRESIDENT: But Linfox doesn't require them to work on those days and do those things, does it?

PN70

MR NORTH: I am not aware, your Honour, of any situation where we have rostered - - -

PN71

THE SENIOR DEPUTY PRESIDENT: But the evidence doesn't suggest they are.

PN72

MR NORTH: That is right. But whether or not that work is available is different to whether or not it is allocated and just to draw that distinction, your Honour. If Christmas is a non-work day as the union said, there was only one day where work wasn't performed and that was 25 December rather than 27 December, which work was performed on. Other than that, your Honour, nothing further. If the Commission pleases.

PN73

THE SENIOR DEPUTY PRESIDENT: Well, I thank both parties for their very helpful and comprehensive submissions, written and oral. I will reserve my decision and publish my reasons in due course. Is there any urgency about this, by the way? I don't hope to take too long, but I just wondered whether there is any urgency?

PN74

MS RICHARDS: No.

PN75

THE SENIOR DEPUTY PRESIDENT: No? Fine. Thank you both.

<END OF EXTRACT [3.45PM]