DECISION

Fair Work Act 2009
s.739—Dispute resolution

Transport Workers’ Union of Australia
v
Linfox Australia Pty Ltd
(C2014/7494)

Alleged dispute about payment of allowance - jurisdiction to determine obligations of parties under a superseded agreement.

[1] This decision concerns an application made by the Transport Workers’ Union of Australia (the TWU or the Union) on 29 October 2014, pursuant to s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute between it and Linfox Australia Pty Ltd (Linfox or the Company). An amended application was filed on 20 January 2015.

[2] The referral of the dispute to the Commission arises from the Settlement of Disputes Procedure set out in clause 33 of the Linfox and Transport Workers Union Road Transport and Distribution Centres Agreement 2014 (the 2014 Linfox Agreement). The Agreement sets out a number of steps to be followed when a dispute arises as to matters covered by the Agreement. Under the Agreement, where a dispute cannot be resolved between the parties then conciliation is to be conducted by the Commission and if this fails, the Commission “may proceed to arbitrate the dispute and/or otherwise determine the rights and/or obligations of the parties to the dispute.” (Clause 33(d) and (e)). The parties to the Agreement are Linfox and the TWU.

[3] Unsuccessful conciliation was conducted before me on 14 November 2014. A directions hearing was held on 15 January 2015 by telephone followed by directions issued on 5 February 2015 for the filing and service of outlines of submissions, witness statements and other materials. Those directions were complied with and the matter proceeded to hearing in Sydney on 10 March 2015. At the hearing, the TWU was represented by Mr T Warnes and Linfox by Mr N Leon. Sworn evidence was given by Mr S Williams for the TWU and by Mr M Sheridan for Linfox.

[4] In its amended application, the TWU characterised the dispute in the following terms:

“Linfox uses prime movers to cart trailers owned by Woolworths at its Warnervale site. The vehicle trailer combination measures 19 metres in length.

Linfox have in the past, and continue to require drivers of prime movers at Woolworths Warnervale to carry a copy of the Roads Transport (General) Act 2005 Class 3 Semi-Trailer Exemption Notice 2012 referred to as the ‘over dimension permit’.

Between the period November 2008 and 15 May 2011 drivers were entitled to payment of an allowance for driving prime movers in excess of 18.29 metres. This allowance was $1.2861 per hour or part thereof with a minimum payment of $5.13 per day. The allowance was not paid to drivers.

The Linfox New South Wales (Transport, Distribution Centres and Waste) Agreement 2007 [the 2007 Linfox Agreement] is the agreement applicable at the time and prescribed that it was to be read and interpreted wholly in conjunction with the Transport Industry (State) Award 2000 [the State Award]. (See Paragraph 43 below for clarification.)

The Transport Industry (State) Award 2000 at clause 2.7 refers to Long and Wide Loads. 2.7.1.2. outlines ‘2.9 metres in width or 18.29 metres in length or 4.3 metres in height measured from the level shall be paid, in addition to all other rates payable, the amount specified in Item 9 of Table 7 of Part B whilst so engaged with a minimum payment of the amount specified in Item 10 of Table 7 of Part B.’.

Item 9 and 10 refer to Long/wide loads $1.2861 per hour or part thereof and Long/wide loads minimum payment $5.13 per day respectively.

The TWU seeks a determination of whether the allowance was payable from November 2008 to 15 May 2011. These dates represent a 6 year period and extend to the date the Linfox New South Wales (Transport, Distribution Centres and Waste) Agreement 2007 ceased.”

[5] Linfox raised a jurisdictional objection claiming that clause 33 of the 2014 Linfox Agreement does not enliven the Commission’s jurisdiction pursuant to s.739 of the Act as the TWU’s application does not involve a question about the Agreement or a question about the employment relationship. That argument is dealt with in detail in the Company’s written submissions as summarised later in this decision as is the counter argument from the TWU.

Evidence

The TWU

S Williams

[6] Mr Williams gave sworn evidence and adopted a witness statement 1. Mr Williams is employed at Linfox’s Warnervale site in New South Wales. He was a TWU delegate from 2008 until the end of 2013. The Warnervale site provides services to Linfox’s contract with Woolworths and delivers goods in the Central Coast and Hunter/Newcastle areas.

[7] Mr Williams said that at Warnervale, “the majority of the fleets trailers are 49 foot with fridge combination on top. In total the length of the combination (the entire vehicle with trailers) is 19 metres.”

[8] In 2007 Woolworths provided trailers for the use of Linfox in servicing the contract. Those trailers are “plated with an over dimensional tag”. “We are also required to carry with us while driving a copy of an over dimensional permit. The permit allows the vehicle with trailer to be 19 metres long.”

[9] In February 2009, Mr Williams said that he raised the issue of the over dimensional trailer with Mr T Quinell (Linfox Woolworths Vice President) and provided him with paperwork showing that an allowance was payable for towing the trailers which Woolworths required to be used. He never received a response. The issue was raised with Mr N Leon sometime between 2010 and 2013 and Mr Leon indicated that the claim would be addressed. “The issue went onto the backburner until 2013 …”

[10] Around November 2013, Mr Williams ceased to be a TWU delegate and handed all documents concerning the over dimensionfal permit to the new delegate, Mr Beswick.

[11] “In around March 2014, Linfox reneged on a local matters agreement that we had at the Warnervale site in relation to an allowance we received for taking breaks on the dock. Since that time, the issue of an over dimensional allowance has again raised its head, as over the years Linfox have not provided a proper response to the issue.”

[12] Attached to the witness statement was a photograph of a plate attached to a trailer with the words “O.D. Trailer”.

[13] I have paid regard to the cross-examination and re-examination of Mr Williams but will not set that material out in this decision given my final determination on the jurisdictional objection.

Linfox

M Sheridan

[14] Mr Sheridan gave sworn evidence and adopted a witness statement 2. He is Linfox’s General Manager - Retail (Woolworths). For some years Mr Sheridan was a truck driver.

[15] Mr Sheridan said that between 3 October 2008 and 6 November 2011, he was the Site Manager at Warnervale and responsible for the management of that site.

[16] He became aware in March 2010 via Mr Quinnell that Warnervale site delegates had raised the issue of an over dimensional allowance. Following liaison with other Linfox executives, Mr Sheridan was informed “that the allowance was not payable as it was not a ‘special load’ as contemplated by the clause. Given my experience in the transport industry … I shared that view. Permits in my experience are required when a vehicle and its load exceed the maximum dimensions of the vehicle. Hence the industry phrase known as ‘long/wide’ loads and the use of placarding and escort vehicles. This was never the case with any of the Linfox vehicles the subject of these proceedings. Based on my experience Permits are otherwise not required.”

[17] Mr Sheridan went on to say that he attended a meeting in early September 2010 during which Mr Williams raised the issue of ‘special loads’ and claimed that an allowance should be paid. The Company rejected the claim and heard no more about it until May 2014 when it was raised again by the TWU and again rejected. The TWU then applied to the Commission.

[18] Mr Sheridan said that prior to the 2014 Agreement coming into operation on 21 February 2014, the site was covered by the Linfox Road Transport and Distribution National Enterprise Agreement 2011 (the 2011 Linfox Agreement) which operated from 17 May 2011.

[19] “During the period which is subject of the TWU’s underpayment claim November 2008 to 15 May 2011 (Relevant Period), the Warnervale site was covered by the Westgate Logistics (NSW) Enterprise Agreement from November 2008 to 6 October 2009 and the Linfox New South Wales (Road Transport and Distribution Centres Transitional) Agreement 2009 from 7 October 2009 to 16 May 2011.”

[20] “During the Relevant Period, Linfox had between 11 and 16 Actross and Columbia prime movers. In addition, Woolworths owned a mix of 44ft (13.411m), 48ft (14.630m) and 49ft (14.935m) trailers. All of the prime-movers used at the Warnervale site during the Relevant Period have been replaced by new equipment.”

[21] “Woolworths loaded the trailers and Linfox delivered the groceries to stores in the Northern Sydney, Western Sydney, Central Coast, Newcastle and Hunter regions. The work employees performed and the equipment varied each day. Employees usually used the same prime-mover for the entire shift however the trailer being towed would change from delivery to delivery.”

[22] “In NSW, the standard maximum total length of the any semi-trailer combination was and is 19m. … During the Relevant Period, while towing 48ft and 49ft trailers employees were required to have Notices authorised by the Roads and Traffic Authority (RTA) (as it was then) in the driving compartment of the vehicle. … These Notices, which were downloaded from the internet, allowed vehicles with different internal dimensions to operate as general class vehicles as set out in the 2007 Regulation. These Notices did not extend the maximum standard length of the vehicle but rather varied the internal dimensions of vehicles to those set out in the 2007 Regulation such as rear overhand and distance between axles and the distance between the point of articulation and the end of the trailer. These Notices are not truck and trailer specific but rather are used to identify standard vehicles with different internal dimensions than those set out in the 2007 Regulation.”

[23] “It should be noted that it was not possible, by way of Notice, to operate a semi-trailer combination in excess of 19m; Permit would have been required. A Permit was linked to a specific vehicle and is not transferrable. In order to obtain a Permit a transport operator would have had to apply to the RTA special permits unit. Permits are approved by the RTA pursuant to clause 90 of the 2007 Regulation and clause 79 of Schedule 2 of the 2007 Regulation and clauses 15-16 and 27-29 of the Road Transport (Mass, Loading and Access) Regulation 2005 (NSW) (2005 Regulation). … Linfox did not operate any vehicles under Permit within the Warnervale site.”

[24] Mr Sheridan’s evidence went on to reply to that of Mr Williams. I have paid regard to that material.

[25] I have also paid regard to the cross-examination and re-examination of Mr Sheridan but will not set that material out in this decision given my final determination on the jurisdictional objection.

Written submissions

[26] Both parties filed written outlines of submissions prior to hearing 3.

The TWU

[27] The TWU argues that during the Relevant Period Linfox failed to pay an Over-Dimensional Allowance to drivers who operated a vehicle longer than 18.29 metres.

[28] “Evidence has been given by Mr Stephen Williams who is an ex-delegate of the TWU and a driver employed at the Warnervale site. The relevant facts are as follows:

a. The length of the majority of vehicles driven at Warnervale during the Relevant Period was (and remains) 19 metres.

b. The trailers are plated with over-dimensional tags.

c. Drivers are required to carry with them an over-dimensional permit.

d. The issue has been raised with Linfox on several occasions but has not been dealt with.”

[29] The submissions go on to deal with the jurisdictional issue in the following terms:

“The Commission has the power to resolve disputes that arise between the parties to the Current Agreement. Clause 33 of the Current Agreement allows ‘Any dispute or grievance that arises at the workplace’ to be dealt with by the Commission by way of arbitration. The dispute must be between either an employee and Linfox, or the TWU and Linfox, and can be about ‘the Agreement or the employment relationship’.

Clause 33 does not limit the time period which the dispute should relate to and does not confine the operation of the clause to disputes arising under just the Current Agreement. The express allowance of disputes arising in the ‘employment relationship’ demonstrates the party’s intention for all workplace disputes to be resolved through this mechanism.

The employment relationship is a contractual concept which from time to time has statutory instruments imported into it, such as the 2007 Agreement and the Current Agreement. The employment relationship is therefore not confined to any particular enterprise agreement and is a broader concept that takes into account the relationship as a whole between employee and employer. A past non-provision of an entitlement is without a doubt a ‘dispute’ about the ‘employment relationship’.

As the payment of an allowance is clearly a matter that falls within the employment relationship, the Commission has the power to resolve this dispute between the parties.”

[30] The submissions close with the argument that during the Relevant Period “drivers at the Warnervale site were driving combinations that exceeded the 18.29 metres in length threshold as set by the 2007 Agreement and/or the Award, they were entitled to receive an Over- Dimensional allowance.”

Linfox

[31] Linfox’s submissions set out the history of agreements which have applied to the Warnavale site and I have paid regard to that material which is also largely contained in the evidence of Mr Sheridan and elsewhere in this decision.

[32] The submissions go on to deal with the jurisdiction question and argue that clause 33 of the 2014 Linfox Agreement limits the Commission’s powers to deal with “any dispute or grievance … about the Agreement or the employment relationship”. Clause 9 of the 2014 Linfox Agreement defines the term ‘Agreement’ as meaning the 2014 Linfox Agreement.

[33] “The TWU has asserted that the non-payment of an allowance arising out of an unincorporated provision of the now replaced State Award may be dealt with by the Commission as a dispute it concerns the ‘employment relationship’. Linfox submits that this contention is misplaced as it fails to consider that the Commission is acting a private arbitrator in accordance with the disputes procedure and is therefore exercising powers of private arbitration.”

[34] Linfox argues that the TWU’s application is beyond jurisdiction as it does not involve a question ‘about the Agreement’ or a question about ‘the employment relationship’, “as the NSW 2009 Transitional Agreement is no longer in operation and the relevant provision does not apply to the existing employment relationship between Linfox and its employees. … Further, the terms of the NSW 2009 Transitional Agreement are irrelevant to any dispute between the parties, as it was superseded by the 2011 Agreement which was then replaced by the 2014 Agreement.”

[35] The submissions cite several items of case law, to which I have paid regard, and argue that the “authorities make plain, is that the determination of past rights and liabilities is an exercise of judicial power and beyond the jurisdiction of the Commission. That is, the Commission’s function in private arbitration is to resolve the dispute to determining the future rights and obligations of the parties. Therefore, Linfox submits that, what is required and what is absent in this case, is a temporal link between the dispute and the dispute settlement procedure.”

[36] “As clause 2.7 of the State Award was not incorporated into the Linfox 2014 Agreement and the State Award no longer operates on these employees, Linfox submits that the true nature of this “dispute” is an underpayment claim and the Commission, in performing its private arbitration and dispute resolution function, is not an appropriate forum to resolve an underpayment claim. This is so because, the Commission does not have jurisdiction to make orders to rectify any contravention or underpayment. In addition, any findings made by the Commission with respect to whether a contravention has occurred may result in inconsistent decisions between the Commission and a Court, as an employee, under Chapter 4 of the Act, is entitled to separately commence proceedings to recover alleged underpayments.”

[37] The submissions go on in considerable detail to deal with the questions of RTA permits and the correct interpretation of clause 2.7 of the State Award. I have paid regard to that material but will not deal with further with it here, given my ultimate conclusion and determination in this matter.

[38] Linfox goes on to argue that the bringing of this dispute to the Commission some five years the matter was first raised with the Company, amounts to something akin to an abuse of process.

[39] In closing, Linfox submits that no vehicles at the Warnavale site operated under a permit during the Relevant Period and the Notices which employees were required to carry were “not vehicle specific and simply state that the truck and trailer comply with the standard requirements of the vehicle in question.”

[40] Both parties made supporting oral submissions at the conclusion of proceedings and I have paid regard to those submissions.

Conclusions and Determination

[41] In reaching my conclusions and determination, I have paid close regard to all of the evidence, written and oral submissions and the materials and documents tendered by the parties. This also applies to the case law cited by the parties.

[42] The first question I need to decide is whether the Commission has jurisdiction to issue a determination in this matter. To decide on jurisdiction, it is first necessary to examine the history of any award or agreement which has covered the relevant employees during the Relevant Period and up to the present day.

[43] At the commencement of the Relevant Period, the applicable agreement was the Westgate Logistics Pty Ltd (NSW Operations) Enterprise Agreement 2007 (the 2007 Westgate Agreement). Here, I note that both the outline of submissions from the TWU and the witness statement of Mr Williams cite the 2007 Linfox Agreement instead of the 2007 Westgate Agreement. That error was rectified later in proceedings.

[44] The 2007 Westgate Agreement incorporated the State Award and that award provided at subclause 2.7:

“2.7 Long and Wide Loads

2.7.1 An employee who is engaged driving a loaded vehicle which together with its special load exceeds:-

2.7.1.2 2.9 metres in width or 18.29 metres in length or 4.3 metres in height measured from the level shall be paid, in addition to all other rates payable, the amount specified in Item 9 of Table 7 of Part B whilst so engaged with a minimum payment of the amount specified in Item 10 of Table 7 of Part B.

2.7.1.3 3.36 metres in width or 21.34 metres in length or 4.58 metres in height measured from ground level shall be paid, in addition to all other rates payable, the amount specified in Item 11 of Table 7 of Part B whilst so engaged with a minimum payment of the amount specified in Item 12 of Table 7 of Part B.

2.7.2 Where any load is being carried by an articulated vehicle which is equipped with rear-end steering and a steersperson is engaged in addition to the tractor driver then both the tractor driver and the steersperson shall be paid in addition to all other rates payable the amount specified in Item 13 of Table 7 of Part B whilst so engaged with a minimum payment of the amount specified in Item 14 of Table 7 of Part B. Provided however, that this payment shall not be in substitution thereof. Provided further that the rates payable under this subclause shall not be taken into account in the calculation of overtime.

2.7.3 None of the allowances in clause 2.7 shall apply to drivers of ‘B-double combination vehicles’ or road trains.”

[45] The 2007 Westgate Agreement was succeeded by the Linfox New South Wales (Transport & Distribution Centres) Transitional Agreement 2009 (the 2009 Linfox Agreement). The 2009 Agreement again incorporated the State Award.

[46] The 2009 Linfox Agreement was succeeded by the 2011 Linfox Agreement. At clause 6, the 2011 Linfox Agreement provides:

“6. RELATIONSHIP WITH OTHER AGREEMENTS

This Agreement operates in place of any other award (including a modern award) or agreement (whether certified, or approved, or not).”

[47] The reference in the 2011 Linfox Agreement to ‘a modern award’ was a reference to the Road Transport and Distribution Award 2010. The terms of the 2011 Linfox Agreement did not include the provisions contained in clause 2.7 of the State Award which had been incorporated into both the 2007 Westgate Agreement and the 2009 Linfox Agreement.

[48] The 2011 Linfox Agreement was succeeded by the 2014 Linfox Agreement. At clause 8 the 2014 Linfox Agreement contains the same provision as clause 6 of the 2011 Linfox Agreement set out above. The 2014 Linfox Agreement also does not incorporate the terms of clause 2.7 of the State Award.

[49] In my view, it is abundantly clear that the current dispute between the parties is not a dispute arising from or about the terms of the 2014 Linfox Agreement but is a dispute, in a very broad sense, between the parties about the employment relationship, albeit in the quite distant past. To that extent, that limb of the jurisdictional objection is dismissed. My determination on this point will provide only brief comfort to the TWU as it is my further determination that the Commission does not have power to determine past rights and liabilities of the parties pursuant to either the 2007 Westgate Agreement or the 2009 Linfox Agreement. Even if I am wrong on this point, determination of the issue between the parties would, in effect, be a determination relating to alleged underpayments by Linfox. That also would be beyond jurisdiction.

[50] All in all, I determine that the TWU’s application is beyond jurisdiction and is therefore dismissed.

COMMISSIONER

Appearances:

T Warnes for the Transport Workers’ Union of Australia.

N Leon for Linfox Australia Pty Ltd.

Hearing details:

2015.

Sydney:

March 10.

 1   Exhibit TWU2.

 2   Exhibit Linfox 2.

 3   Exhibits TWU 1 and Linfox 1 respectively.

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