[2011] FWA 2610 |
|
DECISION |
Workplace Relations Act 1996
s.170LW - pre-reform Act - Application for settlement of dispute (certified agreement)
Textile, Clothing and Footwear Union of Australia
v
Tuftmaster Carpets Pty Ltd
(C2011/3332)
Textile industry | |
COMMISSIONER GOOLEY |
MELBOURNE, 4 MAY 2011 |
Alleged dispute concerning the use of stand down provisions
[1] On 31 March 2011 I issued a decision 1 and order2 whereby the stand down of employees in the top mill employed by Tuftmaster Carpets Pty Ltd (Tuftmaster) was to end no later than midnight on 7 April 2011.
[2] In that decision, I gave liberty to apply to the Textile Clothing and Footwear Union of Australia (TCFUA) if the employees in the bottom mill had not returned to work as normal by the 7 April 2011 3.
[3] On 19 April 2011 the TCFUA, pursuant to the liberty to apply given in that decision, advised my chambers that not all the employees in the bottom mill had returned to work as normal on 7 April 2011. The TCFUA sought a further hearing of the matter and sought orders that the stand down of the remaining employees end no later than 5pm on 19 April 2011.
[4] The matter was listed for hearing on 3 May 2011. Mr Malcolm Harding of Counsel appeared on behalf the TCFUA and Mr Anthony Dalton of the Australian Industry Group appeared for Tuftmaster.
[5] Ms Jenny Kruschel gave evidence 4 about the pattern of work of employees in the bottom mill. That evidence clearly showed that as at the week ending 5 April 2011 employees in the bottom mill had not returned to work as normal5.
[6] No evidence was called by Tuftmaster which showed that the pattern of work described in Ms Kruschel’s evidence has not continued since that date.
[7] Mr Dalton advised that Tuftmaster was not able to advise the Tribunal of when all the employees in the bottom mill could return to normal working patterns, though it was anticipated that most but not all would return to work as normal by the end of the second week in May. Mr Dalton advised the Tribunal that if the stand down was brought to an end then the company would be required to make some employees redundant. While no evidence was called by Tuftmaster in this matter, even on the TCFUA’s evidence, it is apparent that there is insufficient work for the number of employees currently employed by Tuftmaster.
[8] The TCFUA submitted that the question that is needed to be determined by the Tribunal is for how long can Tuftmaster stand down its employees.
[9] I accept the submissions of the TCFUA that some three months after the fire the balance in favour of ending the stand down has shifted. I accept the evidence of the TCFUA that the impact on the stood down employees is significant.
[10] I also accept the submissions of the TCFUA that should, as it was suggested, there be insufficient work for all the employees, the current enterprise agreement 6 sets out the process to be followed. In particular that process requires consultation with the employees and the TCFUA about any mechanisms which may minimise the need for redundancies.
[11] The TCFUA has sought an order that the stand down cease at 5pm on 3 May 2011 while Tuftmaster submitted that should an order be made, it should take effect from 9 May 2011.
[12] I have determined that the stand down of the employees should end. While I appreciate the circumstances that gave rise to the stand down were beyond the control of Tuftmaster the stand down cannot continue indefinitely. The employees are rightly entitled to either return to work or be made redundant in accordance with the processes set out in the enterprise agreement.
[13] I will, to permit an orderly return to work, issue an order 7 with this decision that the stand down of employees ends at 5pm on Friday 6 May 2011.
COMMISSIONER
1 TCFUA v Tuftmaster Carpets Pty Ltd [2011] FWA 1891
3 TCFUA v Tuftmaster Carpets Pty Ltd op cit [76]
4 Exhibit TCFUA 4
5 Ibid at [6]
6 Tuftex-TCFUA Certified Agreement 2004 PR958343
Printed by authority of the Commonwealth Government Printer
<Price code A, AG840275, PR508877>