C2018/5047, Transcript of Proceedings [2018] FWCTrans 397 (18 October 2018)

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PN1

THE COMMISSIONER: Good morning. We might start by taking the appearances in the matters please.

PN2

MR B BYRNE: Thank you, Commissioner. Byrne, initial B, appearing on behalf of Linfox, and with me is Katsifolis, initial G.

PN3

THE COMMISSIONER: Thank you.

PN4

MR G WEBB: Good morning, Commissioner. Webb, initial G. With me today I have Mr Collins, initial M, appearing on behalf of the TWU.

PN5

THE COMMISSIONER: Thank you. Mr Byrne, I think they're your applications. We've listed them both together. I hope that's appropriate.

PN6

MR BYRNE: Commissioner, no objection from Linfox. I guess before we get started I just wanted to seek your view on procedurally how you'd like the matters dealt with. They substantially deal with the same two clauses; the first being from the enterprise agreement, clause 38, and the second from the modern award, 24.6. I'm happy to deal with them as a whole and just address the slight variation in the two variations or I'm happy to address them separately. I'll leave that in your hands on how you'd like to proceed. I've got no - I'm not fussed either way.

PN7

THE COMMISSIONER: Well there are slight differences in what you're doing at each site but as I understand it the issue is the same. That is that you seek to change the rostering arrangements or something. You rely upon these provisions as the basis upon which you could do that.

PN8

MR BYRNE: That's correct.

PN9

THE COMMISSIONER: That's it in a nutshell isn't it?

PN10

MR BYRNE: Yes, 100 per cent. So again, like I said, just so I'm really clear I'm happy to deal with it as a whole and maybe we just address the issues that come through, as long as you're happy for me to operates that way.

PN11

THE COMMISSIONER: Well I'm comfortable to do it in the most efficient manner possible. We don't need to repeat the same issues over but obviously there might be some actual alteration in the precise changes that are needed, and one site's got a slightly different - I might be wrong in this but I think at one site you're talking about the change being implemented on a weekly basis and the other site's on a fortnightly basis. That was one of the things I picked - - -

PN12

MR BYRNE: That is correct and Commissioner I do confirm what the slight differences are in, I guess, my address to you so it probably would be best if I go through and if I'm not clear on what the subtle difference is I'm happy to re-address that but I will - - -

PN13

THE COMMISSIONER: Mr Webb, do you see any problem with going down that pathway?

PN14

MR WEBB: Well I suppose maybe it might be best to hear our position on the ability for the company to implement these rosters first, because I think that's really what's going to be the core issue of the dispute, rather than the intricacies as to the types of rosters and the sites and all that kind of - - -

PN15

THE COMMISSIONER: Well yes, there's a big picture question first of all.

PN16

MR WEBB: Well I think that's the main - yes, because - and we haven't obviously, we're not required to, we haven't put in any sort of response to the application that's been filed by Linfox but we have in meetings and in correspondence set out initially what our objections are. Upon review of that there might be some more - there might be more we need to say about that before the company can have a position moving forward. I'm happy to raise that now if that's the most appropriate time. It might be, I think, rather than going through Mr Bryne's sort of matters - the intricacies surrounding - - -

PN17

THE COMMISSIONER: Maybe I should give Mr Byrne the opportunity to lay out his case first and then you can respond to it if you wish. I think that might be the most appropriate way.

PN18

MR WEBB: If that's the way - yes.

PN19

MR BYRNE: Thank you, Commissioner. Commissioner, as outlined earlier the applications before you rely on substantially the same agreement and award provisions and as confirmed there are slight variations based on how the rosters will be structured. Linfox is seeking to introduce a four day roster in both circumstances in according with clause 38 of the agreement. In both circumstances Linfox has consulted with employees and the union, providing notice in excess of clause 24.6 of the modern award and the importance of clause 24.6 of the modern award is what Linfox believes is our trigger to introduce the change. For clarity, clause 24.6 of the award states:

PN20

48 hours notice of any change of shift must be given to an employee in default for which overtime rates must be paid for work done outside the ordinary shift hours within 48 hours of being notified of the change.

PN21

By way of - for a point of clarity, both applications before you today were originally brought on by the TWU. The TWU advised Linfox there were in dispute by way of email with little or no substance to outline why they were in dispute. In relation to the Lion matter, the feedback that we received from the TWU was they would seek legal advice and then come back to myself, and an informal discussion advising they don't believe the change can be made due to the customer not operating seven day trading.

PN22

In relation to the CUB matter, the dispute was in relation to a lack of consultant on seven day trading and the customer - the same reason, the customer not operating seven day trading. Of note, the CUB employees several months ago were operating this same roster that we're looking to re-introduce and there's actually employees on that contract working the roster that we're looking to re-introduce.

PN23

The TWU are using a protection status quo as an attempt to stall genuine lawful changes within the scope of our agreement. Forming appropriate consultation the TWU in conference before you Commissioner has alleged that they believe Linfox would not adhere to the status quo. Both of these disputes were initiated by the TWU yet they refuse to lodge an F10 with this Commission in accordance with clause 33.5 of the dispute settlement procedure. Rather threatening Linfox with Federal Court action if we failed to review the status quo.

PN24

For clarity before the Commission, clause 33.5 reads:

PN25

The parties must cooperate to ensure that these procedures are carried out expeditiously. The parties undertake to resolve any disputes in a timely manner in accordance with the disputes procedure.

PN26

By way of background Linfox provides third party logistic services to major retail, mining, industrial and FMCG and defence companies. Linfox does not own any of the work and in most cases they're a service to a service. Linfox must tender or provide its customers with cost saving initiatives to retain and grow existing work or contracts. In some instances the point of difference is how we structure our work and labour. In relation to CUB, that is driven by consumer purchasing and the ordering of the bottle shops and retail outlets that distribute liquor. That is next day ordering and they don't order on weekends. Our peak days are Tuesday, Wednesday, Thursday. In relation to Lion, we service milk and juice into distribution centres and vendors in regional locations. The big volume days for those customers are Fridays and Saturdays, driven by again consumer purchasing of those items.

PN27

Linfox provides our employees with remarkable wages and conditions, equipment and sets an industry leading safety record. None of this can be achieved without the hard work of our employees, some of which are here today, and we don't shy away from that. However, the great jobs that Linfox are offering are increasingly under threat due to their inability to compete when it comes to our labour rate or the pay rate. Both applications before you today are a direct result of Linfox attempting to offer a point of difference to our customers, Lion and Carlton United breweries, in an attempt to better service these contracts and provide a commercial benefit and ensure ongoing job security in line with clause 15.1(a), (e), (f) and (h) of our agreement.

PN28

I didn't supply clause 15.1 in either of the applications but I do have copies of that today should the Commission wish to - - -

PN29

THE COMMISSIONER: Sorry, what?

PN30

MR BYRNE: I haven't supplied an extract of clause 15.1 from our agreement in either of our applications. I do have copies today if either party would like that.

PN31

MR WEBB: Yes, I have that.

PN32

MR BYRNE: But for clarity, clause 15.1(a), (e), (f) and (h) reads:

PN33

The objectives of this agreement are; (a) assist Linfox to operate its business flexibly so that it can be responsive to constantly changing customer and marketplace requirements, (e) remove inefficient work practices and processes in all areas of Linfox operations to ensure flexibility, timely and reliable delivery of services to Linfox and its customers, (f) enhance the productivity and (indistinct) of Linfox operations, and (h) enhancing job security and sustainability of Linfox's operations while promoting safe and fair conditions for all workers in the industry.

PN34

Linfox is not looking to circumvent any agreement or award provision by making this change. As you will see in both F10s Linfox is merely attempting to introduce a roster that is provided for under our national enterprise agreement. The clause Linfox relies on as stated earlier was clause 38. It has remained unchanged since the inception of our national agreement in 2011. The claim made by the TWU that the customer must operate seven day trading in order for Linfox to introduce a four day roster is not the correct interpretation of clause 38. Linfox submits that 38.1 and 38.2 operate independently from each other. Linfox requests the Commission confirm that Linfox is in its right to implement clause 38 of the agreement as outlined in both applications. That is I guess what I have to say about our application, Commissioner.

PN35

THE COMMISSIONER: Could I just test a couple of your propositions here first of all. The modern award provision that you're seeking to rely upon, 24.6. That seems to be suggesting that it's a change of shift for an individual employee as opposed to a more general shift alteration for a bigger group, so to speak.

PN36

MR BYRNE: Yes. So Linfox holds the view that we have complied with our consultative obligations under the agreement by informing the work group of the change. And the reason why we rely on 24.6 is merely in relation to a timing or a notification period before the change is made, no different to the start time provision in the modern aware where you must provide seven days' notice. Linfox is relying that we're giving in excess of 48 hours' notice to a roster change.

PN37

THE COMMISSIONER: Sorry, but what about the - as I understand it and correct me if I'm wrong here, you want to move to a system where there's any four days of the week can be used. Is that right?

PN38

MR BYRNE: That's correct, any four in five Monday to Friday.

PN39

THE COMMISSIONER: How will I - what period of time will I know which of the days it is I'm going to work?

PN40

MR BYRNE: So the rosters are fixed, and what I mean by the rosters are fixed. For the CUB contract the employees will either be rostered Monday to Thursday or Tuesday to Friday and that will not change.

PN41

THE COMMISSIONER: So you're not going to be giving me different days in each period.

PN42

MR BYRNE: No, no, so both rosters are fixed, Commissioner. The difference with Lion is week one and week two are different but that pattern would not change within four - - -

PN43

THE COMMISSIONER: So you're not anticipating - this is what I was - - -

PN44

MR BYRNE: It's not rotating or moving.

PN45

THE COMMISSIONER: So you weren't using 24.6 on a continuing basis - - -

PN46

MR BYRNE: Absolutely not.

PN47

THE COMMISSIONER: - - - to say all right, you're working these four days this week but I'm giving you now 48 hours notice that next week it will be a different four days.

PN48

MR BYRNE: No, Commissioner, absolutely not. We wouldn't be able to structure our business that way. We wouldn't be able to plan. It's a fixed roster.

PN49

THE COMMISSIONER: That gets over one of the issues, but in any event there doesn't appear to be in clause 38 a period of sort of notification for the changes that are anticipated there, and so you say well, the period of notification for this is the 48 hours that comes from 24.6 is it?

PN50

MR BYRNE: Yes, so Linfox's position is a minimum of 48 hours' notice will be required to change the roster and the existing roster arrangements for these employees is Monday to Friday, an eight hour ordinary day with the provision of an RDO reduction, and we're looking to change that roster structure to the roster that's provided for in clause 38, being any four days in five with that roster being fixed.

PN51

THE COMMISSIONER: When it says any four you'll actually have it fixed - you'll have it fixed per store, yes.

PN52

MR BYRNE: Yes, absolutely, absolutely. So it's a fixed four day roster in five, rather than any.

PN53

THE COMMISSIONER: Right. Is there a definition for seven day rostering anywhere?

PN54

MR BYRNE: Not that I'm aware of, Commissioner. I have looked for there's nothing in the definitions of the document that talks about seven day rostering, unless Mr Webb can point.

PN55

MR WEBB: I don't think that's in dispute. Isn't that just any five days in the seven, isn't that generally what that is. Like, you can roster them for five days within Monday to Sunday. Because the award only allows you to do it Monday to Friday, isn't that what - - -

PN56

MR BYRNE: Yes.

PN57

MR WEBB: I think, Commissioner, I might at this point sort of try and narrow the scope a bit if you don't mind.

PN58

THE COMMISSIONER: No, right.

PN59

MR WEBB: Because I think you're trying to get there anyway. I think really what this all comes down to is clause 38, what it's really about is allowing the company some flexibility around their obligations under the award in relation to ordinary hours of work. So if you look above clause 37 it say:

PN60

Clause 22 or the Road Transport Award is incorporated into this agreement. All employees accept the ordinary hours of work must be worked between the hours of 5 am and 6 pm.

PN61

So there's one change there to the award. Now the award provides that ordinary hours of work must be worked Monday to Friday, ordinary hours can't exceed eight hours a day. This is clauses 22.2 and then 22.3 of the award and then 22.5 goes onto say how they can work those ordinary hours either by an RDO sort of arrangement or working over five days, being seven hours 36 minutes. But in any iteration of ordinary hours of work for ordinary workers, it's really a five day roster. So the 38 allows the company some flexibility around that but only in particular circumstances.

PN62

Now initially when we raised this in dispute with the company we relied upon the fact that really the drafting of clause 38 is problematic in that, you know, 38.2 doesn't - and the preceding clauses don't actually give any real I guess scope to when or how these shift rosters could be implemented. It just says "shift rosters could include". It doesn't say, for example, the company can introduce the following rosters at sites at any time, or anything like that. It just says "shift rosters could include", and 38.1 says:

PN63

Where Linfox customers operate a seven day trading Linfox has the option to introduce seven day rostering.

PN64

38.2(a), (b) and (c) has a number of different arrangements there which don't really seem to line up what I would think is a seven day rostering.

PN65

THE COMMISSIONER: No.

PN66

MR WEBB: So we've revised our position on that a little bit in the sense that I think and, you know, this is just my view on how that clause 38 is supposed to be interpreted or drafted. But I think 38.1 is a separate sort of arrangement. It's a separate - I would call each of these instances are different flexible rostering arrangements. I'd say 38.1 is one flexible rostering arrangement, where they do operate a seven day trade they can do five days and outside the Monday to Friday requirement in the award.

PN67

THE COMMISSIONER: Yes.

PN68

MR WEBB: I would say the second arrangement in this clause is 38.2 through to 38.5, which talks about shift rosters, which is what we're talking about here. Then 38.6 is basically a clause which allows the parties by agreement to come up with some sort of arrangement that isn't perhaps envisioned by the preceding clauses or the award.

PN69

Now we're only dealing then really with I think clauses 38.2 to 38.5. If you take my position that these allow the company flexibility to go outside of the award, the problem with 38.2 I think for the company is that it uses the term "shift rosters". Now what is a shift roster? There's no clarification in the enterprise agreement what a shift roster is. However, in the award clause 24, which relates to shift work, it uses the term "shift roster" in quite a few instances. It uses it at clause 24.2(b), it says there must be a shift roster which provides a rotation and at 24(2)(c), "shift rosters must specify the commencing and finishing times", and you know, indeed the company's relying on 24.6 in relation to this application. That as well uses this term for shift rostering.

PN70

So my view is that clauses - and then - so my view is that 38.2 is really - when it uses the term shift rosters what it's talking about is this arrangement of shift rosters under clause 24 of the award, which is - - -

PN71

THE COMMISSIONER: Well no that's shift work.

PN72

MR WEBB: Well that's shift work but then it's the only place where it relates to shift rosters. I mean what is a shift roster?

PN73

THE COMMISSIONER: Any time that you're rostered to work a shift.

PN74

MR WEBB: No, well I don't think that's the - I mean if you go on - if you look at the following clauses, in particular 38.5, it says:

PN75

Appropriate shift penalties will be paid in accordance with clause 49.3 of this agreement.

PN76

Which refers to shift worker's penalties. In my view, that can only be referring to that shift penalties will be paid if the shift roster's implemented. I think the intention of 38.2 to 38.5 is about shift work and shift workers and shift rosters. What else could a shift roster mean? The only time it's ever mentioned in either the agreement or the awards is under the shift work clause, so it only really applies to shift workers in my view. They're talking about rosters that can be implemented for shift workers.

PN77

THE COMMISSIONER: Where is there a definition of shift workers in the agreement?

PN78

MR WEBB: There isn't. That's the only time it arises the agreement. That's the only time it arises in the agreement, is shift rosters at 38.2.

PN79

THE COMMISSIONER: Well yes, I'm not sure that these are shift workers though are they? It's no as we would ordinarily understand a shift worker.

PN80

MR WEBB: The definition of - the agreement relies upon - sorry, no, the agreement has a specific definition of shift worker which is different to the award.

PN81

THE COMMISSIONER: Right.

PN82

MR WEBB: I think it's cause, and you might be able to help me out here, 49, it must be around there. I'll have a look, because that's what that relates to. 49, yes, so 49 talks about shift work and it says that clause 24 of the award is incorporated except for the definitions and the allowances because they're changed by this agreement. What it does is doesn't have a definition for shift roster but it has for shift work, and it also has - essentially the difference it provides for an early morning shift allowance which is not in the Road Transport Award. So that's what those changes do, but it still incorporates the balance of clause 24 of the award.

PN83

My view is and what our position is that 38.2 and - and when you read it in conjunction with the clauses that follow it, in particular that 38.5, it's talking about shift penalties. It uses the words "shift roster" which is only ever used in the award under clause 24 which relates to shift work, that the arrangement that's envisioned by 38.2 relates to shift workers. Because that's what it's talking about. 38.1 is a separate flexible rostering arrangement. It talks about when they have seven day trading they can bring in seven day rostering. It doesn't say seven day shift rostering. 38.6 is a separate one. It says that they can reach agreement on different rostering arrangements, it doesn't say shift rostering arrangements but 38.2 is another flexible rostering arrangement which the company could bring in, and it talks about shift rosters. The only thing that I think that can mean is what is a shift roster as is required by clause 24.2(b) and (c) of the award.

PN84

THE COMMISSIONER: These people don't work rotating shifts.

PN85

MR WEBB: Well the problem has is that these people aren't shift workers.

PN86

THE COMMISSIONER: Right.

PN87

MR WEBB: So if they're not shift workers then how can they implement shift rostering that relates to shift workers on the basis that they can be in six day rosters, any five and seven days or any four and five days.

PN88

THE COMMISSIONER: Because they're not converting them from - well you've euphemistically referred to them as day workers to shift workers.

PN89

MR WEBB: No, they're not, they're remaining as day workers.

PN90

THE COMMISSIONER: Right. So what this clause is doing is saying well, as day workers you can have these different shift arrangements - - -

PN91

MR WEBB: We disagree that that's what that's saying.

PN92

THE COMMISSIONER: What else would it be saying?

PN93

MR WEBB: It says that shift rosters could include. So it says shift rosters could include, well what's a shift roster?

PN94

THE COMMISSIONER: Any roster that you work.

PN95

MR WEBB: But there's no definition for the term shift roster. It's the only time it's used in the entire enterprise agreement is shift roster. There's other use of the term rostering or - - -

PN96

THE COMMISSIONER: What would be the use of this clause if it couldn't be used to do this sort of thing?

PN97

MR WEBB: It can, for shift workers, as a shift roster which must be provided by the company in accordance with clause 24.2 of the award.

PN98

THE COMMISSIONER: So you actually want these people to move to a rotating shift basis.

PN99

MR WEBB: No, what we're saying is that if the company wants to implement these types of arrangements they may very well be able to do with people who are shift workers on a shift roster, in accordance with clause 24.2, but these employees aren't shift workers. They're day workers. They're not shift - and the changes - - -

PN100

THE COMMISSIONER: I follow all that.

PN101

MR WEBB: And the changes won't classify them as shift workers either because they're still going to be day workers.

PN102

THE COMMISSIONER: Exactly. So what would clause 38 have - what would be its use if it couldn't reschedule day workers' work.

PN103

MR WEBB: Well they can, they can do it under 38.1 when there's a seven day arrangement - seven day operation they can move to a seven day rostering outside of the Monday to Friday requirement of the award, and at 38.6 they can do it for day workers upon agreement. But for clauses 38.2 to 38.5 it's a separate arrangement, and in our view it relates only to shift work. The word shift doesn't appear anywhere else. It's shift rostering, so that's shift rostering under the shift - - -

PN104

THE COMMISSIONER: But shift rostering doesn't mean you're a shift worker.

PN105

MR WEBB: Well the only other time that term is used, shift roster, it doesn't say - the drafting of that clause is "shift rosters could include", so when you look at that sentence, "shift rosters could include", what is a shift roster? Now you're taking up clearly the plain and ordinary meaning, you know, trying to say that well that could just mean any rostering for any shift but there is a specific use of that term in the award, of a shift roster.

PN106

THE COMMISSIONER: For shift workers.

PN107

MR WEBB: Yes, for shift work.

PN108

THE COMMISSIONER: But these aren't shift workers, we've all agreed on that.

PN109

MR WEBB: Yes, the people that are trying to - that the company are trying to implement these arrangements into are not shift workers, and I've spoken - if we have to proceed to a hearing we'll have to lead evidence but I've spoken to members of ours that were on the negotiating committee years and years ago when this was implemented, and they were of the understanding this only applied to shift workers. It was essentially an arrangement that was a claim made by the company where they wanted to have some flexible arrangements for shift workers and it was implemented on that basis, and it was limited to that.

PN110

What the company's trying to do is say that they can do this in any instance, at any yard for any worker, but - because the big issue here is clause 38.4 really which is why we would even take issue with this, is because what in effect this arrangement would do is provide these people to work four days where their ordinary hours will be 9.5 hours and there'll be a natural reduction in the available overtime available to them to work, because they'll only be working four days. They can only drive 14 hours max or whatever it is in accordance with the fatigue management rule, so you're just reducing overtime and what the company's going to do and they, you know, to their credit, they're trying to reduce overtime and they're doing it in a way of having four people rostered on and they might fill up that fifth day with other workers or casuals or subcontractors or whatnot. But the problem is that the award provides for when ordinary hours can be worked, and that's Monday to Friday at 7.6 hours, and we say that 38.2 allows some flexibility but only in relation to shift work.

PN111

THE COMMISSIONER: I see.

PN112

MR WEBB: The problem also is that - I mean it doesn't, you know, it doesn't say that the company may introduce rosters on the following basis. There's no pre-condition or no sort of - it just says "shift rosters could include". Like it's not very clear in my view what that means, and when it's not clear you then have to look at what's provided for in the award and any other - - -

PN113

THE COMMISSIONER: So this is resisted because it might reduce overtime opportunities.

PN114

MR WEBB: Well I think that's the intention of the company as well is to reduce costs, so yes. Then I noticed I think it was in the CUB application there was some - and I've been briefed on this, that there was an arrangement previously where they were working a four day roster and then the company changed that arrangement in March this year to a five day roster, and it went back as I think - - -

PN115

THE COMMISSIONER: Well I think they've got two groups working one on the four day and one on the five day.

PN116

MR WEBB: I think so but I think the changes, they want them all to go back to the four day. I think that's been put in there to sort of say well they've agreed to it before and it wasn't a problem. But what we would say about that is that in that instance the drivers agreed to take on the four day roster initially because they were actually paid a different rate, so it was an incentive rate. We would say that's consistent with clause 38.6 which says that you can come up with other arrangements, as long as it's on agreement and that no one's - - -

PN117

THE COMMISSIONER: You can almost do anything if you're agreed.

PN118

MR WEBB: Yes, as long as no one's worse off as well and no one's disadvantaged. As long as you agree to it. So our position, I think it's pretty clear, it's going to come down to whether in your view the company can under 38.2 implement these for a day worker, you know. I mean it's just our view that it relates only to shift work - - -

PN119

THE COMMISSIONER: The difficulty that I would have with the interpretation that you seem to suggest is I don't understand what useful purpose would be served with these provisions if they were only going to apply to people that were shift workers.

PN120

MR WEBB: Why would that not be useful to the company? What we're saying is you can do this and you limit it to - this company operates contracts all over. They're massive, they have shift workers everywhere so in certain arrangements it would be very useful to them.

PN121

THE COMMISSIONER: Well the way around this might be then if you were right, for the company to then say to these people we're going to give with the requisite notice, you're going to become shift workers.

PN122

MR WEBB: Yes, and then they can pay them shift penalties.

PN123

THE COMMISSIONER: And then we're going to put you on a series of - - -

PN124

MR WEBB: And get their paid breaks and - - -

PN125

THE COMMISSIONER: - - - rotating rosters I suppose.

PN126

MR WEBB: If they want to do that then that's something we'll have to deal with at that time, but this in particular - I know at in the Penrith yards, this company has implemented rostering to deliberately have these workers fall outside the definition of shift workers, because they have to do it consistently and systematically for four week periods at a time. So they put them on at three weeks, take them off, three weeks put them off, to avoid having to pay them shift rates, shift penalties, paid breaks and all that kind of stuff that comes with it.

PN127

MR COLLINS: It's fixed now. It was like that, they fixed it.

PN128

MR WEBB: They've fixed it, have they. What do you mean?

PN129

MR COLLINS: It's fixed outside of the shift - - -

PN130

MR WEBB: But either way, my point is, my point is that if they - they can do this for shift workers. I mean what else would 38.5 be about? Why is that put in there? Appropriate shift penalties. It's clearly relating to shift work, I think.

PN131

THE COMMISSIONER: I think that deals with if start and finish times extend into those particular periods that are covered by the morning and afternoon shift and so forth then you have to get your penalties for that period of time.

PN132

MR WEBB: But that's already dealt with in the shift work clause - and that's clearly dealt with. I mean why - - -

PN133

THE COMMISSIONER: No, because they're not shift workers, that's why you would need that there.

PN134

MR WEBB: No, no, but what I mean in the construction of this agreement why - - -

PN135

THE COMMISSIONER: That supports the proposition you see that you need that there because they're not shift workers as ordinarily contemplated, so that if the periods of time that their shifts actually operating in encompass any of those periods that attract the shift penalties, they still have to get it. That actually supports very much the contention that what is being proposed here is alteration to day workers.

PN136

MR WEBB: Hang on, why does it do that?

PN137

THE COMMISSIONER: Well because the ordinary hours of work for the roster patterns that you've put in place here have to attract the shift penalties - - -

PN138

MR WEBB: I don't think that's what that's says. It says in accordance with clause 49.3, so it still relies upon being in accordance with clause 49.3.

PN139

THE COMMISSIONER: Yes.

PN140

MR WEBB: Which is, what does it say - - -

PN141

THE COMMISSIONER: That's for shift workers ordinarily. So you need that in there because otherwise these people, you might - - -

PN142

MR WEBB: Why would you need it in there? You can just rely upon 49.3 anyway, you don't need that in there.

PN143

THE COMMISSIONER: Well no, they're not shift workers.

PN144

MR WEBB: What do you mean - no, I mean but the inclusion of 38.5 in this clause doesn't - it doesn't really need to be there does it really. It just says:

PN145

Appropriate shift penalties will be paid in accordance with clause 49 - - -

PN146

My view is that the reason that's put in there is because when, you know, when this was being drafted up or put in there, obviously we wanted to make sure that, you know, it's clear that this is for shift workers and we want to make sure they still get their shift penalties. That's why it's there. It's talking about shift workers. Why else would we put it in there? I don't - I can't - - -

PN147

THE COMMISSIONER: It's put in there to say well, these aren't shift workers and so therefore those shift penalties, which are those early morning, afternoon and night shift allowances would have to apply if any of the shift rosters extended into those periods of time.

PN148

MR WEBB: Well that would be a great interpretation. I think, you know, if that means they have to go outside of the definition of shift work and don't have to work those as a regular basis for four weeks. I mean that's, with respect Commissioner that's a very favourably interpretation for us but it's also - I think it's quite beyond the scope of what is set out in 38.5. I don't think that's what it's saying. I don't think it's saying that they should get shift penalties if they - it doesn't say working within the relevant hours under clause 49.3. It just says "in accordance with 49.3".

PN149

THE COMMISSIONER: If they were working one of these revitalised day work arrangements that in any way traversed those periods of time covered by the early morning shift or - - -

PN150

MR WEBB: They'd still have to be a shift worker though, which is 49.2(b).

PN151

THE COMMISSIONER: Well then - - -

PN152

MR WEBB: So is the shift work arrangement both under the award and the agreement, they don't - they don't really kick in until you meet that definition of shift work. We've had - there's been Full Bench decisions about this with this company before actually about what is the meaning of shift work and how that sort of works. So you don't - it's not a matter of then if you just work a shift that falls within the time periods of early morning, afternoon or night then you get the allowance.

PN153

THE COMMISSIONER: Why would you need to put - - -

PN154

MR WEBB: You only get - you only get the - sorry - you only get the allowance if you meet the definition of shift worker and you meet the definition of shift workers if you work regularly within those time periods over a four week period.

PN155

THE COMMISSIONER: Yes, but here's a clause which actually probably might have arisen because of one of those outcomes and it says if any of these shifts extend into those periods you'll get the penalties. That's what I would have thought would apply.

PN156

MR WEBB: Well I don't - well - - -

PN157

THE COMMISSIONER: That's a beneficial arrangement for your members, I would have thought.

PN158

MR WEBB: Well it is. Of course it is but I don't think - well that's not what's going to happen. I mean these guys are still going to be working before - it's a rotating rosters, isn't that right? These four day roster's a rotating roster so presumably they're going to be working sometimes within the shift work definitions and other times not, like they are currently.

PN159

MR BYRNE: No, no, the roster's fixed as we confirmed before. So whatever roster pattern they're given will be fixed for either CUB, which is week to week, every week's the same for the individual employee, or for Lion week one and week two is the same, does not change, and those rosters were provided in - - -

PN160

MR WEBB: But there's no time though. There's no time when they commence or finish their shift.

PN161

MR BYRNE: There's no change to their current start time. All employee start times won't be changing. We confirmed that in the consultative meetings.

PN162

THE COMMISSIONER: So we won't see the operation of any of the early morning shifts. They're not going to be commencing before 5 am, or are they?

PN163

MR BYRNE: If Linfox requires employees to start at a start time that requires shift loading it'll be paid but we currently under this new roster arrangement, if you're a five day employee starting at 6 am you will still continue to start at 6 am, but under the four day roster pattern that we've proposed. No start times have been proposed to change. Obviously people will just have to work longer ordinary hours.

PN164

THE COMMISSIONER: You're working a longer day in four days, yes.

PN165

MR BYRNE: That's correct. That's correct.

PN166

THE COMMISSIONER: But presumably that's exactly what this was intended to do at 38.4. It's actually specifying it isn't it?

PN167

MR BYRNE: That's - not to jump in on Mr Webb, Commissioner. Our position is that in its entirety it clarifies that the roster arrangement under 38.2(c) will provide for a nine and a half ordinary hour day because it's not provided for in the modern award, and because it's not provided for in the modern award it's qualified and clarified in the agreement for us to implement.

PN168

MR WEBB: Yes, but that's only talking about ordinary hours and that's relevant shift workers because shirt allowance is only payable on their ordinary hours, it's not payable on - if they were doing overtime, for example. They don't get a double penalty. So the reason why I would say that that's there is because number one, it brings their 40 hours into a four day arrangement and then you follow that on with 38.5, so as appropriate shift penalties will be paid. Well it'll be paid at the 9.5 hours because that's their ordinary hours and what will be paid.

PN169

I still - I mean our position, I think it's pretty clear, we think 38.2 can only be implemented for shift work and for shift - people that are shift workers, under a shift roster arrangement as envisioned by clause 24 of the award. It doesn't say - like it doesn't say - this clause doesn't say, for example, that Linfox may - that Linfox may introduce flexible rosters for day workers outside of the requirements of the award in the following way. That's not what it says. It doesn't say they may do this for day workers, it doesn't say that, you know - in fact the clause before it clearly say that clause 22 is incorporated except for 5 am to 6 pm. So all the other arrangements in clause 22 of the award are implemented including that they must be worked over five days, Monday to Friday.

PN170

Clause 38.2 doesn't give any real right to the company to say that they can extend outside of those arrangements under clause 22. It doesn't give that express right and maybe it's poor drafting but - and that's why we're here because there's obviously a dispute over the interpretation of clause 38.2. But in absence of any clear wording or clear drafting that this can be said to be said to be applied carte blanche to all day workers at any site at any time. Which it doesn't say that. You have to look at what it says. It says "shift rosters could include". So what's a shift roster? I mean if there's no definition for it, you can take the plain English, plain reading of it as perhaps you have, Commissioner, but there are other instances of the use of the term shift roster and it's in the RTD and it's only to shift workers. I think when you couple that with the idea that it goes on to mention the use of shift penalties, I think that it's - - -

PN171

THE COMMISSIONER: See I just don't know how you would - if this was confined to shift workers as defined by the modern award definition of shift workers, it doesn't seem to make any sense. How could you possible - you get this ridiculous confliction here where the notion of shift worker under the definition in the RTD modern award, doesn't fit any of those shift roster patterns that have been spelt out there.

PN172

MR WEBB: Why not? We use 49.2(d) anyway but that's - the agreement doesn't rely upon the award for the definition of shift worker. It relies upon 49.2(d) of the EA.

PN173

THE COMMISSIONER: Sorry, you say don't look at 22, the definition of shift work.

PN174

MR WEBB: No, because - it's altered by 49.2(d) and the only real difference, as I said, is this introduction of early morning shifts and there must be a four week period, which I assume is the trade off for having early morning shifts. But why could there not be instances where they have a six day roster for people who work on Saturday for a shift worker. Shift work is about a day to day shift when they work within periods of time. Whether it's, you know, I can't remember - before 4 am, I think for a night shift, and early morning shift is between 4 am and 5 am and an afternoon shift where they commence after 10 or before 4.

PN175

It talks about those - each particular individual shift and the commencing and finishing times. There's nothing in clause 49.2(d) that precludes them from being able to implement these types of rostering, whether it's a six day roster, which includes rostering on a Saturday, a five day and seven day roster or a four day and five day roster. They can still do that with shift workers, why couldn't they?

PN176

THE COMMISSIONER: Because they don't get into the definition of 49.2(d).

PN177

MR WEBB: But this is about what days you roster them. That's what - that's what 38.2 is about, the days. The make up of what days you call them in to come into work.

PN178

THE COMMISSIONER: They're in daily recurrent periods or in regular rotating periods within the limits defined by early morning, afternoon and night shift.

PN179

MR WEBB: Which are all about the commencement - - -

PN180

THE COMMISSIONER: So you have to - - -

PN181

MR WEBB: - - - of shifts - of time.

PN182

THE COMMISSIONER: Exactly. So for that - for the definition to operate you would have to find that you're being engaged at some point in this process within a four week period, that gets you into one of those early mornings, afternoon or night shift engagements.

PN183

MR WEBB: Let's use the example you have a yard where you have people that regularly work shift work, right, and they do it over a five day period.

PN184

THE COMMISSIONER: But what sort of shift work, rotating - - -

PN185

MR WEBB: Let's just - no, let's say they fit within the definition of a four week period, whatever it is, they fit within the definition of shift work, they are shift workers for the purpose of 49.2(d) and so they work - they currently work a five day arrangement. They do five days, 7.6 hours is the ordinary hours and it's a fixed roster. If the company - we say if they wanted to implement a four day roster for their shift workers why could they not do that under 38.2, of course they could. They can just move them to a four day. It's just a difference between a five and four day. It's just it's up to the company to figure out how they're going to fill in that fifth day with other workers. That's a matter for them. But your position that 38.2 doesn't work for shift workers I can't understand why that's your position. Of course it can work for shift workers. It's about the days they work, not the times.

PN186

THE COMMISSIONER: But shift workers have to have engagements that start at particular times.

PN187

MR WEBB: Yes.

PN188

THE COMMISSIONER: None of these people will be engaged at any of those times.

PN189

MR WEBB: So they can't do it. That's our position.

PN190

MR BYRNE: Just to clarify, we will under the Lion arrangement have afternoon shift employees.

PN191

THE COMMISSIONER: Will you?

PN192

MR BYRNE: Yes.

PN193

THE COMMISSIONER: That are being engaged via this system?

PN194

MR BYRNE: That's correct.

PN195

THE COMMISSIONER: Right.

PN196

MR WEBB: I was instructed - I think are they the shunt drivers.

PN197

MR COLLINS: There's drivers as well.

PN198

MR BYRNE: No - - -

PN199

MR COLLINS: Minimal.

PN200

MR WEBB: Minimal. I was advised that there were I think three drivers that are shift workers in the definition of clause 49.2(d), but no the company wants to put them on the five day roster.

PN201

THE COMMISSIONER: Well then they can do it. They can do it for them under your process.

PN202

MR WEBB: They can. Well we can say they can.

PN203

THE COMMISSIONER: Your interpretation says it's okay for them but not for the others.

PN204

MR WEBB: But as attachment C said those people they want as a five day, they don't want to put them on a four day roster.

PN205

MR BYRNE: And they're shift workers.

PN206

MR WEBB: Yes.

PN207

THE COMMISSIONER: So what that would mean if your interpretation is correct, Mr Webb, that would mean that you couldn't sustain the argument in respect of those people who were shift workers, so they will be picked up by 38 and that will operate for them but not for the others.

PN208

MR WEBB: Yes, because this is all about giving the company some flexibility, not carte blanche to do it outside whatever they want, within the constraints of what is envisioned by the Road Transcription Distribution Award. Now the whole idea of ordinary hours of work is so that, you know, they - in the award is that they can work Monday to Friday, 7.6 hours, whatever it is. Clause 38.2 gives them some flexibility but we say that flexibility is limited to shift workers, yes. And it can - I don't agree with your position that it can't work with shift workers, of course it can. You've just given an example then, they could do it with the shunt drivers if they wanted to. In fact in some yards it might be appropriate for - I haven't sought instruction on this but it might be that they've implemented such arrangements in yards where they rely heavily upon shift work, I'm not sure. I mean it must have been brought in for a particular reason. Actually is it - - -

PN209

MR COLLINS: Coles. Coles.

PN210

MR WEBB: Coles.

PN211

MR COLLINS: (Indistinct) they've got the four day.

PN212

MR WEBB: They do four and they are shift workers? Some of them might be but some of these arrangements might be under - - -

PN213

MR COLLINS: But they operate seven days, the customer operates seven days.

PN214

MR WEBB: But some of these arrangements might be by agreement as well, Commissioner.

PN215

THE COMMISSIONER: I understood your argument was clause 38, to do any of these things you have to be - you have to satisfy the definition of the shift worker arrangement.

PN216

MR WEBB: So 38.2 onwards, yes. Because it just says shift rosters could include - - -

PN217

THE COMMISSIONER: I think there's no doubt that what's being proposed here is an arrangement of engagements, if I exclude using the word shift, an arrangement of engagements, I'll use those words, that satisfies 38.2(c) isn't it?

PN218

MR WEBB: That's what the company's seeking to do, yes.

PN219

THE COMMISSIONER: Yes. So your argument is they can do that so long as they're shift workers.

PN220

MR WEBB: They can do it for shift rosters.

PN221

THE COMMISSIONER: Which means a person that's a shift worker doesn't it? Satisfies a shift - - -

PN222

MR WEBB: Which means a shift roster as set out in clause 24.2, I think it was, of the award.

PN223

THE COMMISSIONER: No, no, we've been down that pathway and you've taken me to clause 49.2 and said you've got to go and look there. 49.2(d) is the one. Shift work means.

PN224

MR WEBB: Clause 49, the incorporation of clause 24 which is shift work in the award is still incorporated into the agreement. Clause 49 only essentially alters parts of clause 24. The entirety of clause 24 is still incorporated into this agreement.

PN225

THE COMMISSIONER: Well what part do you say applies then to - - -

PN226

MR WEBB: All it does, the only things that are different is the definition of shift work, which is 24.1(d). That's different because that's - the way that the - the way this agreement works is that if there's an inconsistency between the EA and the RTD the EA prevails. So if clause - let me get the EA back up - with clause 49, so it actually says in 49.1:

PN227

Clause 24 of the award's incorporated into this agreement.

PN228

Which is shift work. So entirely if clause 24 is incorporated.

PN229

THE COMMISSIONER: Except.

PN230

MR WEBB: Except the definition - - -

PN231

THE COMMISSIONER: Yes.

PN232

MR WEBB: - - - which has changed.

PN233

THE COMMISSIONER: Yes.

PN234

MR WEBB: So that's 24.1 is different and 24.3, which is the allowances.

PN235

THE COMMISSIONER: Don't worry about that.

PN236

MR WEBB: Don't worry about those. And I mean the other point that highlights our view that this only relates to shift workers is the company in our (indistinct) relied upon 24.6 of the award to try and implement these rosters, which only relates to shift workers and talks about shift rosters. It says, "Transferred to existing shift roster", and that's what the company relied upon in their application to say we need to give 48 hours' notice. That's only for shift workers.

PN237

THE COMMISSIONER: I think I've already challenged them on that at an earlier stage.

PN238

MR WEBB: My point is that they looked at that because it uses the word shift roster and that's what the - that's what the enterprise agreement says, that shift rosters could include. So I think the central question is what's a shift roster? That's really what this dispute's about, well from our perspective and that's what we will get to, the company's ability to be able to implement these for what would be, you know, known as a day worker for example. It really comes down to what's a shift roster.

PN239

THE COMMISSIONER: So, just take me back to where we were, it seems to me that your argument would mean clause 38.4 and it's talking about a pattern of engagement and I'm specifically excluding the word roster.

PN240

MR WEBB: But it says under - - -

PN241

THE COMMISSIONER: If you'd allow me to finish.

PN242

MR WEBB: Sorry, Commissioner.

PN243

THE COMMISSIONER: A pattern of engagement that is set out in 38.2(c) which is any five days Monday to Friday of 9.5 hours per day. If that then from your interpretation means that it's a shift roster and that has to be shift work as defined in 49.2(d) before it can be applied, then it's only going to be able to apply to those particular individuals here that work one of these afternoon shifts or any shift that fits into the limits of early morning, afternoon or night shift.

PN244

MR WEBB: Yes. Because as I said, the problem with 38.2 it doesn't say for example, you know, clause 22 and ordinary hours is - you know, is amended or is flexible and the company can go outside of that, you know, Monday to Friday 7.6 hours of eight hours if you work an RDO roster and implement the following rosters. It doesn't say that. All it says and perhaps it's poor drafting, shift rosters could include. That's all it says. It doesn't say what I think the company wanted to say in that we can implement an arrangement where we can go outside of clause 22 of the award, where we don't have to give them their ordinary hours over a five day period, being Monday to Friday. It doesn't say that. All it says is shift rosters could include. And as I said and I'm still relying on it, I'm probably repeating myself but I think you've narrowed it down pretty well.

PN245

If it's talking about shift roster well clause 24.2(b) of the award which is incorporated into this agreement says there must be a shift roster, which provides a rotation and that all relates - because 24.2 is all about the ordinary hours of work for shift workers. Then 24.2(c) says shift rosters must specify, and then as I said the very clause the company tried to rely upon, 24.6 transfer to existing shift rosters. It's using the term shift roster, shift roster, shift roster in the context of shift workers, because there's an idea under 24.2(b) that there must be a shift roster which provides the rotation.

PN246

So we go back to 38.2 and it says shift rosters could include. Well what else does it mean? It doesn't say we can alter the rostering for day workers so they can do this. It says shift rosters could include and my view is that a shift roster must - it must be referring to what a shift roster is for a shift employee in accordance with the award. I think in my view it's quite a stretch to try and say that this provides the company with the flexibility to roster any employee, particularly a day workers, outside of the ordinary hours requirements under the award, particularly when you look before it, 37 says that clause 22 is incorporated and it must - and the only change that may vary is between 5 am and 6 pm. I mean if they wanted to extend the ability to implement those types of rostering under 38.2(a), (b) and (c) for day workers, well you know if I think that was the intention they would have included that in clause 37 when they were amending the ordinary hours of work for day workers.

PN247

They've already done it there trying to amend the time. If they wanted to say well clause 22 is what will be applied except for we can implement these rostering. Maybe they should have done it there but they don't, and they don't say at 38.2 that we can implement - that these rosters can be implemented for day workers, nor does it say shift workers but all it says is shift rosters could include. What does that mean? In our view it doesn't mean that the company can just do this to any roster, any worker. Because what it does is it allows them to proceed with what they're doing, bring in a four day roster which will reduce their access to overtime.

PN248

THE COMMISSIONER: Thank you. Mr Byrne, do you want to say anything about any of that?

PN249

MR BYRNE: Just briefly, Commissioner. We spent a lot of time talking about 38 and its relationship with the modern award. 38 in our enterprise agreement albeit our enterprise agreement can be a bit convoluted and confusing in how it's structured, it's very clear that it falls outside of the shift work provision in our agreement. Clause 38 if it's read - if it's read as the words mean it's flexible rostering arrangement. It's a clause that allows Linfox to structure its business in line with other provisions of our agreement, and I really want to go back and stress the point on clause 15 and the provisions that I alluded to before; (a), (e), (f) and (h).

PN250

We need to roster our business to reflect what is happening with our customer. 38.2 provides Linfox can introduce those rosters at (a), (b) and (c). If Linfox wants to introduce rosters outside of (a), (b) and (c) then clause 38.6 would have some operation. Linfox disagrees with the position put forward by the TWU that it applies to shift workers. The clause itself should be read it reads.

PN251

THE COMMISSIONER: I think somewhat perhaps unhelpfully clause 24.6 that you're seeking to rely upon in terms of the notification period is clearly in respect of shift work.

PN252

MR BYRNE: Yes. I guess the reason why we relied on that, Commissioner, is we were looking for a notification period. Not looking to rely on that we only can change it for shift workers. We were looking for a notification period. We were looking for a time period to notify our employees of the change. Not that we were going to rely on a minimum standard, of course we were going to provide more than that. But we were just looking for a notice period within the agreement.

PN253

We have these arrangements in place in the business for day workers. We have these arrangements in the business for shift workers. We have these arrangements at a site just currently subject to this dispute. The position that the union holds that Linfox disagrees with are the words at clause 38 should be read as intended. That's not to include - be subject to the shift work provision of the agreement.

PN254

THE COMMISSIONER: Well it seems that the matter involves a question of the correct construction to be given essentially to clause 38.2(c) and whether or not it's confined in its operation to people who satisfy the definition of shift workers as is contained in clause 49.2 That seems to be the nub of the construction argument.

PN255

MR BYRNE: Just on that, Commissioner, if we look at clause 4.4(b) of the agreement - - -

PN256

THE COMMISSIONER: What clause?

PN257

MR BYRNE: 4.4(b). It talks about the operation of the agreement, how the agreement operates and 4.4(b) talks about common terms required to the extent of any inconsistency over incorporated terms for the modern award. I believe Mr Webb said earlier and the transcript might support or should support this that he was having dialogue with a member of the committee that negotiated the national agreements that was introduced in 2011. The intent of this agreement - the intent of clause 38 was to never fall within the shift work provision, because if it was it would fall within the shift work provision and it clearly defines the - - -

PN258

THE COMMISSIONER: That's an argument you might want to mount in due course but - - -

PN259

MR BYRNE: We will.

PN260

THE COMMISSIONER: I was trying to summarise the construction issue that seems to be at play here and - - -

PN261

MR WEBB: Commissioner, I don't think it's just limited to the construction of whether 38.2 is restricted to shift workers but it also must be - the interpretation consideration must also be whether 38.2 extends to day workers as well. I mean it doesn't say that either. I mean I know your position will be well what else does it mean, but I think it's clear that if it was intended to say day workers or ordinary hours then, you know, that could have been included in 37. Just as my friend says well, if it was a shift worker it could have been included in 49, but the reality is that it's outside of both. So 37 deals with hours of employment, ordinary hours for day workers. Ordinary hours of work for shift workers is dealt with by way of clause 24.2 of the award, but 38 operates outside of both of those. So it's really about does 38 give them the ability to have flexible arrangements with day workers as well. I don't think it's just these are limited to shift workers. Maybe that's a bit of a convoluted point but - - -

PN262

THE COMMISSIONER: It seems to be the same point.

PN263

MR WEBB: Well it is except the onus is a little bit different I think. I think it has to fall between one or the other, either 38.2 is limited to shift workers or it is interpreted to mean that it can be implemented for any worker really.

PN264

THE COMMISSIONER: Yes.

PN265

MR WEBB: I just wanted to make sure that was clarified, that's our position.

PN266

THE COMMISSIONER: Well I think it's the same point, it can be expressed in the reverse or in the positive I suppose but the construction question then could be described as whether clause 38.2(c) in this instance and more generally clause 38.2 in any of its manifestations, could apply to workers who were not shift workers as defined. So you can express it that way.

PN267

MR WEBB: Yes, Commissioner.

PN268

THE COMMISSIONER: That's the argument. Well it does appear then that we've made sure we know what we're arguing about, which is always good. The dispute settlement procedure requires us to try and see if it can be conciliated. It appeared I think there was - I might have misheard this but it appeared that there was some agreement reached in respect of people that moved onto this operation when they got some additional payment or something.

PN269

MR BYRNE: Commissioner, the matter referred to is a dispute before Roberts C and that was in relation to - I'll call it the APM dispute, the alternate payment method, and that was a method of payment paid in addition to the hours and overtime under the agreement. That was an incentive based payment. Now that was arbitrated and the Commission found in favour of Linfox that the matter - the alternate payment method would be turned off. That alternate payment method - the rostering arrangement of four days continued after the alternate payment method was turned off and the transition to the five day roster was actually at the initiative of the employees who requested it, not at the initiative of Linfox. Upon review of that roster it's not satisfying the requirements of the contract and it's inefficient, it's costly, we have employees and resources where there's no work. So in relation to the comments made there I just - I hope that clarifies the comments.

PN270

THE COMMISSIONER: I'm not sure it does. All I was endeavouring to tease out was a question of whether there is a capacity to find agreement under clause 38.6 as what may have occurred in the past for these changes to be implemented. Now it might not be something that is worth pursuing but it strikes me as being the area where potential conciliation might be focused. Has that been given any thought before now?

PN271

MR BYRNE: No.

PN272

THE COMMISSIONER: No.

PN273

MR BYRNE: No, but I would have to seek some instruction on that.

PN274

THE COMMISSIONER: Yes.

PN275

MR BYRNE: I couldn't give an answer to that.

PN276

THE COMMISSIONER: Let's be blunt about it. It seems to me that whatever the outcome of the contested construction question might be, it's being argued, that is the resistance to the change is being mounted on the basis that people believe that there are going to be less opportunities for overtime. So they're going to be taking home less money as a result of the change. That's probably quite accurate and it's probably going to save the company some money if they can avoid having to pay overtime for people working shorter five days rather than longer four days.

PN277

Now in all of that there's clearly the prospect, as I say, because there's the capacity under 38.6 to virtually do anything you want to if you can get agreement. Now it wouldn't be the first time that a company said look, we might share in the - we'll share in the benefits that we get out of this re-rostering. That's the simple proposition. That doesn't disturb the potential for the matter to ultimately have to require the contested construction question but it just seems to me to be a logical thought that might be traversed before we went down that pathway.

PN278

MR BYRNE: Yes, Commissioner, as stated I'd have to seek some instruction on that. The point you made around overtime Linfox won't shy away from the fact that this roster will reduce overtime on a rostered day but there still would be the capacity for an employee to work an overtime shift, and what I mean by that is on an off day or a Saturday or something like, so the net result is yes, there'll work more hours but we're not saying there's no overtime available for you at all, we're just saying we need your labour where the work is, and that's the whole premise of both of these changes.

PN279

THE COMMISSIONER: I understand, I understand the economics that attach to the re-rostering. All I'm suggesting here is that without any prejudice to the construction question being argued and ultimately determined, it seems just logical to think well would there be the capacity for agreement to be reached if we said look, if we can see tangible benefits for the company arising out of this re-arrangement, and that's probably going to be to some extent extracted from the reduction in overall overtime that might emerge, we might be prepared to share in some of that benefit. That's all I'm suggesting.

PN280

Now if that's the concept I think it's at least worthy of exhausting that before we go into the arbitration of the matter. It might prove to go nowhere and Mr Byrne you might get strict instructions that says no, we're not going to offer these people a little bit of a - you know, sort of sweetener, as it's sometimes described to agree to these arrangements without this. We think we're on strong ground with what we've got in our agreement and so we'll just press ahead. But yes, I think it's just worth thinking about.

PN281

This isn't a case that they're not mutually exclusive. You can - and it probably will need to be done now because obviously you want to press ahead with the changes and this is all being delayed. It seems to me we could timetable your arbitration for you but in the process you might just exhaust this alternative solution before we go too far down the pathway with the arbitration.

PN282

MR BYRNE: Complete agreement, Commissioner. The preferred position of Linfox would be for - to seek some instruction. If I had my last dollar I think I know what way the business will go, however I take your point and will seek some instruction on that. But the preference of Linfox, while we seek that instruction, is to set dates. At least that way we've got the dates - we've got a finish line.

PN283

THE COMMISSIONER: Yes, yes.

PN284

MR BYRNE: That may involve conversation as well. I can't get an answer today, I'll seek some instruction. I'm fairly confident I know what the answer will be, however it would be improper not to tease that out but we would seek dates today and continue the dialogue.

PN285

THE COMMISSIONER: Well I mean, you know, it's just as a concept of sharing in some of the benefits of flexibility. That's the concept.

PN286

MR BYRNE: I accept the position.

PN287

THE COMMISSIONER: That's the idea. All I really want to do is prod the parties with that concept and then we can just go ahead and put together a timetable for the matter to proceed to arbitration.

PN288

MR BYRNE: Fair position, Commissioner, thank you.

PN289

MR WEBB: I'll just note that the TWU are always open to flexible arrangements. In fact with this company we do it all the time, particularly for different commercial reasons or under particular arrangements with their contracts. So we're always open to that but as you've quite rightly said, Commissioner, it must involve a bit of give and take and if the company's position is just going to be that no, we want to be able to implement this and we're going to do it whether you like it or not then that's their position but we're happy to hear any proposition - - -

PN290

THE COMMISSIONER: I think we understand, we all understand one another here and I think Mr Byrne's going to raise that with the people within his company to see whether or not they want to pursue that.

PN291

MR WEBB: I just wonder whether we just deal with the matter of permission now, Commissioner.

PN292

THE COMMISSIONER: Permission?

PN293

MR WEBB: For the company or the unions to be represented by paid lawyers. Because if the company are going to - I'm just going to note that we don't object and we can grant that permission now.

PN294

THE COMMISSIONER: Mr Byrne, you think you'll engage lawyers or something do you?

PN295

MR BYRNE: No, I mean the question was just posed by Mr Webb. I mean again I'd have to seek some advice on that as well but - - -

PN296

MR WEBB: I just thought we'd get it out the way.

PN297

THE COMMISSIONER: Well if it's clear that both parties don't oppose either side being represented, I don't know, I don't think you've got one of those dispute settlement clauses that puts that in this instance, but some do.

PN298

MR WEBB: Some say they can be represented, I think, yes.

PN299

THE COMMISSIONER: Yes, but anyway look if it's clear that no one's taking issue on that, to avoid the prospect of there being any doubt about it and everyone's nodding I'm happy to say that in the circumstances permission's granted.

PN300

MR WEBB: Thank you, Commissioner.

PN301

THE COMMISSIONER: Is there any opposition from that at all from either side?

PN302

MR BYRNE: Sorry, Commissioner, just one thing. Commissioner, it's fair if they're not objecting, they're not objecting, so it's fine.

PN303

THE COMMISSIONER: You might all come along with senior counsel or you might - - -

PN304

MR WEBB: The reason is because we might need to obtain advice, Commissioner, and we just wanted - that's what I mean.

PN305

THE COMMISSIONER: That's another point.

PN306

MR WEBB: I just want to make sure that we're all okay and - - -

PN307

THE COMMISSIONER: Well I think everyone's agreed then that it's appropriate that permission be granted. I'm satisfied the requirements of section 596 are met. There's enough complexity about a construction question like this to think that lawyers might need to be consulted. So that's disposed of the question of permission for the whole thing. I think what we now need to turn our attention to is the timeframe that you might be looking at. The usual process, Mr Byrne, usually it's or very often it's the union that is on - goes first but what we usually do is require a date for your evidence, any witness statements or other material you're going to rely upon as evidence and importantly, some particulars of the nature of the relief sought. A sort of draft order sometimes is importance so everyone can focus in on what it is that the question's all about. I tried to paraphrase that a moment ago.

PN308

MR BYRNE: I believe - sorry to jump in. I believe and a request will be made for the transcript because I think you did clarify - - -

PN309

THE COMMISSIONER: We'll get the transcript for you.

PN310

MR BYRNE: Yes. I've written some notes down on timings where you did clarify that so yes, we would request the transcript and it would be - we would rely fairly solidly on the comments you made and the timing - - -

PN311

THE COMMISSIONER: But you need to frame the draft order - - -

PN312

MR BYRNE: Yes, I understand.

PN313

THE COMMISSIONER: This is what we say the question is, right, this is the argument. So here's the - and here's what we say the Commission should provide as an order, that these terms should be interpreted as follows.

PN314

MR WEBB: If they want to consult with us we can - - -

PN315

THE COMMISSIONER: You've done it before, Mr Webb, haven't you? But I mean, yes, it's very important - - -

PN316

MR WEBB: I think it's clear in this case that the parties agree on what the (indistinct) is going to be.

PN317

THE COMMISSIONER: Yes, but it's important that it be documented so that everyone is clear. So that's just the nature of the direction because the direction will be by this date file your evidence and particulars of the relief sought, whether that be by way of a draft order or however you want to frame it.

PN318

MR BYRNE: Yes.

PN319

THE COMMISSIONER: A couple of weeks, would that be sufficient time, Mr Byrne?

PN320

MR BYRNE: Today's the 10th.

PN321

THE COMMISSIONER: Today is the 10th, yes.

PN322

MR BYRNE: That's (indistinct) are you proposing the 24th or the 31st?

PN323

THE COMMISSIONER: I could take it to the end of the week if you want a little bit more time to the 26th.

PN324

MR BYRNE: I never knock back some more time, Commissioner.

PN325

THE COMMISSIONER: I know, yes, these are all questions of people's, you know, demands on time and so forth.

PN326

MR BYRNE: 26th.

PN327

THE COMMISSIONER: The 26th?

PN328

MR BYRNE: 26th.

PN329

THE COMMISSIONER: 26 October, right. So the Commission will direct then that the applicant in these matters is to file and serve all witness statements and any other evidentiary material upon which the applicant may seek to rely, by no later than 4 pm on Friday, 26 October 2018. Accompanying that evidentiary material the applicant is directed to file and serve some particulars of the relief sought either by way of draft order or other determination.

PN330

Mr Webb, two weeks after that sufficient for you or just past the weekend?

PN331

MR WEBB: Just past, only because I'm heading out for conference on the 8th and 9th so - you know that, so.

PN332

THE COMMISSIONER: Look, I understand as I say the demands on people's time.

PN333

MR WEBB: I mean if they have an extra two days, so I think Monday's sufficient as well, yes.

PN334

THE COMMISSIONER: The 12th?

PN335

MR WEBB: Yes.

PN336

THE COMMISSIONER: Right. So therefore the Commission directs that the respondent in these matters, the Transport Workers Union, is to file and serve all witness statements and any other evidentiary material upon which it may seek to rely in opposition in the matters, by no later than 4 pm on Monday, 12 November 2018. A short period for anything in reply, Mr Byrne, so a week after that, so the third direction on the applicant will be to file and serve any evidence or other material in reply by no later than 4 pm on Monday, 19 November. Then we can fix this matter for hearing on Friday, 23 November if that's convenient.

PN337

MR WEBB: I've just got some directions in another matter, just one second, Commissioner, I just need to check. I haven't put it in my calendar yet.

PN338

MR BYRNE: Just while Mr Webb's doing that, Commissioner, the hearing - obviously the Commission's combined the matters but - - -

PN339

MR WEBB: Well I think it's the same - - -

PN340

MR BYRNE: It's the same, yes.

PN341

THE COMMISSIONER: One would think that if you were successful with the determination then that would affect both propositions.

PN342

MR BYRNE: I'm just thinking in relation to the evidence and the witness statements.

PN343

THE COMMISSIONER: Right, well - - -

PN344

MR BYRNE: From timing.

PN345

THE COMMISSIONER: It's a matter for you but I think we're dealing with a - in the construction question we're probably looking at the evidence about the actual requirements that you're seeking to implement.

PN346

MR BYRNE: Yes.

PN347

THE COMMISSIONER: So that's the changes but probably, and I'm not going to tell you how you should run your case, you'd probably be looking at the question of historical position and the development of this clause and what was there before or things of that nature, I don't know.

PN348

MR BYRNE: Agreed, and just on that the matter - it's the same position, is there any objection to the Lion rostering arrangement where it's over two weeks?

PN349

MR WEBB: The objection is about - - -

PN350

MR BYRNE: Or is just the shift worker, not shift worker?

PN351

MR WEBB: Well I don't know. Our position is that they're going to be implemented for shifts, so if we win on that position then it doesn't matter what you want to do anyway really.

PN352

MR BYRNE: It'd be fine, Commissioner, thank you.

PN353

THE COMMISSIONER: So I think Mr Webb, the 23rd?

PN354

MR WEBB: That's fine.

PN355

THE COMMISSIONER: That's all right?

PN356

MR WEBB: Yes, thank you.

PN357

THE COMMISSIONER: So we'll fix the hearing of the matter to commence at 10 o'clock on Friday, 23 November. That's both matters, so both matters will just travel together. Is there anything further we can do with the matters this morning, Mr Byrne? We've exhausted the process I think for the day.

PN358

MR BYRNE: To protect everyone from repeating ourselves no, I think, we've addressed everything, Commissioner.

PN359

THE COMMISSIONER: Yes, I think we have. On that basis then the proceedings now stand adjourned.

ADJOURNED UNTIL FRIDAY, 23 NOVEMBER 2018 [11.14 AM]

Fair Work Commission Transcripts

C2018/5047, Transcript of Proceedings [2018] FWCTrans 397 (18 October 2018)