C2005/2606, Transcript of Proceedings [2005] AIRCTrans 944 (20 April 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11276-1

COMMISSIONER CARGILL

C2005/2606

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
AND
LINFOX AUSTRALIA PTY LTD
s.99 - Notification of an industrial dispute
(C2005/2606)

SYDNEY

2.01PM, MONDAY, 04 APRIL 2005

PN1

THE COMMISSIONER: Can I have appearances.

PN2

MS K EDWARDS: If the Commission pleases I appear with P DAVIES on behalf of the CFMEU.

PN3

MR P SMITH: I appear for Linfox Australia Pty Ltd. With us today I have
MR MARK EVERSTEIN, who is the national manager for Linfox Timber Products and MS JO WYMAN who is the site manager of the Linfox Laminex Prospect site, the site of which the dispute notification today relates, if it please the Commission.

PN4

THE COMMISSIONER: Yes. Ms Edwards.

PN5

MS EDWARDS: Thank you Commissioner. If I might keep on the union submission brief as the union is quite willing to enter into some type of discussions. We would respectfully request that the Commission convene a private conference following the submissions of both parties, if the Commission pleases. About mid January the employers thought to alter the commencement times of Peter Moss, Chris Bilhajia and Bruce Palmer from 5 am to 6 am. At that time the ordinary hours of work of these employees was 5 am till 1.30 pm and the employers thought to amend these to 6 am to 2.30 pm.

PN6

Commissioner, the union submits the employer is unable to direct these employees to change these commencement times. In saying this, we point your attention towards clause 8.12, start of shift times outside of award hours of the enterprise agreement.

PN7

THE COMMISSIONER: There's an agreement, is there?

PN8

MS EDWARDS: Yes, Commissioner. Do you have a copy of the agreement?

PN9

THE COMMISSIONER: No, I don't because the notification indicated there was an award and I have the award, but not the agreement.

PN10

MS EDWARDS: My apologies, Commissioner. I could hand you up a copy if you would like to look up my copy.

PN11

THE COMMISSIONER: Thank you.

PN12

MS EDWARDS: Commissioner, it is clause 8.12, it states:

PN13

Shift start times may be varied to outside of the spread of hours as stated in section 23.1.1 of the applicable award...(reads)... without the payment of shift penalties.

PN14

We say in the absence of that mutual agreement, those being the pertinent words, that the employer cannot direct the employees to commence work at 6.30 am and that would be in breach of the agreement if they were to do so. Commissioner, we also point out, further to this that all three employees have family commitments that are well known to the employer and we can expand on this if the Commission pleases in private conference. Thank you.

PN15

THE COMMISSIONER: Mr Smith?

PN16

MR SMITH: Commissioner, my opening submissions were going to be somewhat lengthier than the union's. I may shorten those for the purposes of today, because Linfox also is quite willing to enter into the private conference. Our view is what obviously is somewhat different to the union's with regard to our ability to change the hours of employment for the employees concerned and I should make one point. Whilst Ms Edwards on behalf of the CFMEU says that the change relates to three employees only, it should be noted and certainly in conference we will detail that over a period of time the vast majority of the workforce, in our view, have had their start times changed or their hours of work changed, in accordance with what we are seeking by way of this notification to employees.

PN17

As a little bit of background Commissioner, Linfox operates at the Prospect site, a warehousing facility on behalf of Laminex. As most people, or certainly as I would respectfully submit to the Commission, it is reasonably general knowledge that the building industry is somewhat contracting at the moment and this means that with respect to the throughput of the product, Laminex product, through that warehouse, there has been a decrease both in the stock that has been held over the past 3 to 4 months and certainly a downturn in the requirements for labour on the site. Certainly during conference we are happy to hand up details of that.

PN18

To cut it short, I guess Commissioner, what this has meant is that it has been necessary to reassess the hours of work that employees are working and certainly an overall reduction in the number of hours, be it overtime, casual hours or indeed or what we would say are other unproductive hours. Ms Edwards stated in her submissions that Linfox had decided to make this change some time in January. We would submit that our analysis into what the needs were go back sometime prior to that however certainly in or around late December or early January Linfox first mooted the changes that would be required. We say that there was a great deal of consultation that has taken place between January and today, the day that the dispute has been notified.

PN19

This consultation has involved Linfox management talking to delegates, employees, union officials and indeed there were two ECC committee meetings being conducted where, at certainly one of those meetings this was the only topic of discussion and at the other one, I understand it to be the main topic of discussion. Initially Linfox was seeking to change the commencement time for these employees from 5 am until 6 am, a change of one hour to their commencement time and obviously an hour to the length of their day but an hour to their commencement time. I think Ms Edwards has alerted the Commission to the relevant clauses and we would agree that to change the start time from 5 am to 6 am would require the consent or the agreement of employees as stated in the award.

PN20

As a result of further consultations and not being able to get agreement on the commencement time of 6 am, we see that we have no alternative and a letter went out recently advising employees of the 7 days notice that their commencement time would now be 6.30 am. If I may Commissioner, with your indulgence I'll just read the clause in the award which is cross-referenced to the clause in the enterprise agreement:

PN21

The ordinary hours of work shall be as agreed by the majority of employees-

PN22

THE COMMISSIONER: What clause is that Mr Smith?

PN23

MR SMITH: Clause 23.1.1 of the CFMEU/Linfox Warehouse

PN24

THE COMMISSIONER: Of the award?

PN25

MR SMITH: Yes. Again I'll just commence that:

PN26

Ordinary hours of work shall be worked as agreed by the majority of employees and the employer ...(reads)... in one of the following manners.

PN27

As I have briefly explained and certainly are happy to go into further in conference, we sought their commencement time to be 6 am from the time that they are presently commencing. Despite a lengthy consultation process we are not able to garner that agreement. So we say that we have taken the rights that are incumbent upon us in the award to notify employees and give them due notice that their commencement time would be at 6.30 am. I should point out, Commissioner, that on the site there are, I'm instructed, 16-day shift employees. Of these 16-day shift employees, 13 of them are currently commencing and I understand happily commencing work at 6 am. The other point of note I think, Commissioner, is that on one view of it, there is already a valid majority of employees who have agreed to that commencement time.

PN28

I think that would be our secondary thrust in our submission, Commissioner, that there is already a valid majority of employees, who have agreed to that commencement time. On one view of it, would also capture the three remaining employees who are refusing to give such consent. Commissioner, Ms Edwards has alluded to family circumstances that the remaining three employees have. Certainly we acknowledge that employees from time to time have personal situations that may indeed require further investigation. We have not closed the door on that. Indeed on all occasions during consultation we have sought to understand issues from employees and have sought to find solutions to any problems that may be thrown up.

PN29

However we find ourselves, in our view, in Linfox's view, not being assisted by employees in alleviating their own situations.

PN30

THE COMMISSIONER: Mr Smith, how long have these 13 been working from 6 am?

PN31

MR SMITH: A couple of years.

PN32

THE COMMISSIONER: They previously started at an earlier time?

PN33

MR SMITH: There's been a consolidation of sites and maybe we can go into that in conference but certainly there has been differences in commencement times in the various sites. I think my recollection is that this site is a new site that commenced possibly previous to August 2003. That was a consolidation of
three different Linfox Laminex sites. To finalise prior going into conference, Commissioner, we would say that we have by way of consultation meetings and indeed we would say an opportunity to help employees through any personal issues they may have, we have done all that we can and at the end of the day, because of the commercial operations and the requirement for us to be commercially competitive, we at the end of the day, issued employees, the
three remaining employees with a letter giving them 7 days notice that their commencement time would be 6.30 am.

PN34

We say that that is in accordance with our rights under clause 23.1.1 of the relevant award, if it pleases the Commission.

PN35

THE COMMISSIONER: Ms Edwards did you want to place anything on the record before we go into conference. I think we would happy just to speak about it in conference.

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