TRANSPORT INDUSTRY - MAYNE LOGISTICS
INTERIM AWARD
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Application by the
Transport Workers' Union of New South Wales, industrial organisation of
employees.
(No. IRC 6084 of 2002)
Before The Honourable
Justice Boland
|
31 January 2003
|
INTERIM
AWARD
Pending further order, the Industrial Relations Commission
of New South Wales makes an Interim Award in the following terms:
1. This award
shall be binding upon Linfox, Mayne and the TWU.
2. By no later
than the close of business on Friday, 31 January 2003 Mayne shall provide all
Employees with the following information relating to their employment
conditions with Mayne:
current rate of pay;
current grade/classification;
long service leave accrual;
annual leave accrual;
sick leave accrual;
accrued rostered days off; and
commencement date.
3. Following the
completion of the step referred to in clause 2 of this award Mayne and Linfox
shall comply with the following procedure for Employees:
3.1 Individual
Employees, or their representative, shall contact the person(s) nominated by
Linfox with any queries or disputes relating to the information.
3.2 The relevant
person(s) shall make enquiries of Mayne's payroll department.
3.3 By 24 February
2003 Mayne shall provide each Employee with a correct consolidated statement
containing the information referred to in clause 2 of this award as at the
Transfer Date and forward a copy of this statement to Linfox with respect to
Transferring Employee.
3.4 Linfox shall
participate and fully cooperate in this process as the new employer with
respect to all Transferring Employees and shall provide a statement to each
Transferring Employee either confirming that the information contained in the
consolidated statement provided by Mayne in accordance with clause 3.3 of this
award is correct or, alternatively, that Linfox does not believe it is correct
within 60 business days of Linfox receiving a copy of the consolidated
statement from Mayne.
3.5 In the event
that Linfox transmits any part of the business it has acquired by reason of the
Trade Sale to another entity during the term of this award Linfox shall provide
a statement containing the matters referred to in clause 2 of this award as at
the date of transmission to each employee whose contract of employment is
terminated as a result of such transmission to the Purchasing Entity. Such information shall be provided no later
than the later of the date of transmission and the date referred to in clause
3.4.
3.6 In the event
that agreement as to the correctness of the information referred to in clause 2
of this award cannot be reached the matter shall be referred to the Industrial
Relations Commission of New South Wales for determination. Following determination by the Commission
Mayne and Linfox shall provide the relevant Employee with a consolidated
statement containing to the information as at the transfer date within seven
days.
4. Linfox shall
offer to employ all Employees on the same terms and conditions upon which the
Employees were engaged in their employment with Mayne immediately prior to the
Transfer Date.
5. Linfox shall
recognise all service related entitlements of Transferring Employees accrued with
Mayne up to the Transfer Date (as determined pursuant to the process specified
in clause 2 and 3 of this award).
6. Linfox shall,
in respect of Transferring Employees, recognise the length of continuous
service with Mayne (including continuous service with any entity which was
purchased or acquired by Mayne, provided service with such entity is recognised
by Mayne as continuous service with Mayne) for the purposes of all service
related entitlements, and from the Transfer Date all such continuous service by
Transferring Employees with Mayne prior to the Transfer Date shall cease to be
regarded as service with Mayne and shall be deemed to be continuous service
with Linfox for all purposes including calculating entitlements under an
industrial instrument or industrial relations legislation.
7. In the event
of Linfox terminating any of the Transferring Employees after the Transfer Date
by reason of redundancy the length of service for the purpose of calculating
the redundancy payment shall be the aggregate of the period of continuous
service recognised by Mayne at the Transfer Date pursuant to clause 6 of this
award and the period of service that the employee has had with Linfox from the
Transfer Date until the date of termination, save that Linfox shall not be
required to make redundancy payments in respect of any period of engagement
with Mayne (or any entity which was purchased or acquired by Mayne) for which a
redundancy payment has previously been paid by Mayne (or any entity which was
purchased or acquired by Mayne).
8. Subject to
clause 9, Linfox shall apply to each Transferring Employee (other than
Transferring Employees employed in the Armaguard business) the terms and
conditions of the Linfox Model Enterprise Agreement by 1 July 2003 and pending
the application of the Linfox Model Enterprise Agreement to any such
Transferring Employees, the TWU will not pursue any claims during the term of
the Linfox Model Enterprise Agreement for them, except for any claim for an
increase in allowances pursuant to a State Wage Case or an industry-wide
application regarding the protection of employee entitlements.
9. If Linfox
considers that special or extraordinary circumstances exist, it may approach
the TWU to stagger increases in the rates of pay for Transferring Employees
under the Linfox Model Enterprise Agreement over a period of up to 24
months. If the TWU agrees with any such
approach, the increases will be staggered in accordance with that agreement. The TWU will not unreasonably withhold
agreement to any such approach. If the
TWU does not agree with any such approach, Linfox may notify a dispute to the
Commission about the issue. The
increases will not be paid while the matter is being resolved, whether by
conciliation or arbitration, and no industrial action will be taken. If the matter is unable to be settled by
conciliation, the Commission may determine when the increases are payable. Linfox acknowledges that this may require it
to pay backpay.
10. Linfox shall
consult with the relevant Transferring Employees and the TWU after the Transfer
Date in respect of any restructure of Linfox's business which will, or be
likely to, have a materially adverse affect on the Transferring Employees.
11. Subject to
further agreement and as provided in this award, Linfox and the TWU shall, in
respect of each Transferring Employee, observe the terms and conditions of any
Award or Agreement (whether expired or not), which was applicable to the
Transferring Employee immediately prior to the Transfer Date.
12. For the
purpose of this award the following definitions shall apply:
'Employees' shall mean employees of Mayne who are
members or eligible to be members of the TWU and to whom an Award or Agreement
to which the TWU is a party applies and are offered employment by Linfox
effective on and from the Transfer Date under the terms of the Trade Sale.
'Trade Sale' shall mean the purchase by Linfox of the
contract logistics and Armaguard businesses of Mayne.
'Transferring Employee' means each Employee who accepts
employment with Linfox under the terms of the Trade Sale and commences
employment with Linfox.
'Agreement' shall mean an agreement made under the Industrial Relations Act 1996 that is
binding on Mayne in respect of any Employee including any of those specified in
Attachment A which are binding on Mayne in respect of any Employee.
'Award' means an award or order binding on Mayne in
respect of any Employee made under the Industrial
Relations Act 1996 including those specified in Attachment A.
'Linfox' shall mean, in respect of Employees in Mayne's
contract logistics business, Linfox Australia Pty Ltd (ACN 47 004 718 647) and,
in respect of Employees in Mayne's Armaguard business, Linfox Armaguard Pty
Limited (ACN 099 701 872).
'Linfox Model Enterprise Agreement' means an agreement
(including the pay and classification provisions and all other terms) entered
into between the TWU and Linfox in settlement of the TWU's "Heads of
Agreement Claim - Draft No. 4 - 10 September 2002" as served on Linfox.
'TWU' shall mean the Transport Workers Union of New
South Wales.
'Mayne' shall mean Mayne Group Ltd (ACN 004 073 410)
and all subsidiaries of Mayne Group Ltd which employ employees in Mayne's
contract logistics and Armaguard businesses.
'Purchasing Entity' means any entity to which Linfox
transmits any part of the business it has acquired by reason of the Trade Sale
during the term of this award.
'Transfer Date' means 3 February 2003 or such later
date as shall be agreed between Linfox and Mayne pursuant to the Trade Sale
agreement.
13. All Employees
who are offered employment with Linfox under the terms of the Trade Sale and in
accordance with this award shall be deemed to have had suitable alternative
employment obtained for them by Mayne and shall not be entitled to be paid any
severance pay as prescribed in any Award, Agreement or order of the Commission
or otherwise as a consequence of ceasing to be an employee of Mayne.
14. This Award
will commence operating 31 January 2003 and will have a nominal life of 12
months and shall cease to apply at the end of that nominal term.
Attachment A
1. MPG Logistics
(Arndell Park) Enterprise Agreement 2000 EA01/24.
2. MPG Logistics
Pty Ltd - Huntingwood Site (Transport Workers) Enterprise Agreement 2000
EA01/25.
3. Mayne
Logistics (NSW Linehaul) Enterprise Agreement 2000 EA01/181.
4. MPG Logistics
Pty Ltd (Tricon), Wetherill Park Warehouse Enterprise Agreement 2000 EA01/23.
5. MPG Logistics
(Granville - Metro CSO's) Enterprise Agreement 2000 EA01/142.
6. Armaguard,
NSW Road Crew Enterprise Award 2002 2005 as published 11 October 2002 (336 I.G.
658).
R. P. BOLAND J.
____________________
Printed by
the authority of the Industrial Registrar.