TRANSPORT INDUSTRY - LINFOX AUSTRALIA PTY LTD, BIDVEST AUSTRALIA LTD
INTERIM AWARD
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Application by Transport Workers'
Union of Australia, New South Wales Branch, industrial organisation of
employees.
(No. IRC 5711 of 2003)
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Before The Honourable
Mr Justice Peterson
|
15 October 2003
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AWARD
1. This award
shall be binding upon Bidvest, Linfox and the TWU.
2. By no later
than the close of business on Friday, 17th October 2003 Linfox shall provide
all Employees with the following information relating to their employment
conditions with Linfox:
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 Linfox and Bidvest
shall comply with the following procedure for Employees:
3.1 Individual
Employees, or their representative, shall contact the person(s) nominated by
Bidvest with any queries or disputes relating to the information.
3.2 The relevant
person(s) shall make enquiries of Linfox's payroll department.
3.3 By 17th
November 2003 Linfox 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 Bidvest with
respect to Transferring Employees.
3.4 Bidvest 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 Linfox in accordance with clause 3.3 of this
award is correct or, alternatively, that Bidvest does not believe it is correct
within 60 business days of Bidvest receiving a copy of the consolidated
statement from Linfox.
3.5 In the event
that Bidvest transmits any part of the business it has acquired by reason of
the Trade Sale to another entity during the term of this award Bidvest 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 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
Linfox and Bidvest shall provide the relevant Employee with a consolidated
statement containing the information as at the transfer date within seven days.
4. Bidvest shall
offer to employ all Employees on the same terms and conditions upon which the
Employees were engaged in their employment with Linfox immediately prior to the
Transfer Date.
5. Bidvest shall
recognise all service related entitlements of Transferring Employees accrued
with Linfox up to the Transfer Date (as determined pursuant to the process
specified in clause 2 and 3 of this award).
6. Bidvest
shall, in respect of Transferring Employees, recognise the length of continuous
service with Linfox (including continuous service with any entity which was
purchased or acquired by Linfox, provided service with such entity is
recognised by Linfox as continuous service with Linfox) for the purposes of all
serve related entitlements, and from the Transfer Date all such continuous
service by Transferring Employees with Linfox prior to the Transfer Date shall
cease to be regarded as service with Linfox and shall be deemed to be
continuous service with Bidvest for all purposes including calculating
entitlements under an industrial instrument or industrial relations
legislation.
7. In the event
of Bidvest terminating the engagement of 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 Linfox at the Transfer Date pursuant
to clause 6 of this award and the period of service that the employee has had
with Bidvest from the Transfer Date until the date of termination, save that
Bidvest shall not be required to make redundancy payments in respect of any
period of engagement with Linfox (or any entity which was purchased or acquired
by Linfox) for which a redundancy payment has previously been paid by Linfox
(or any entity which was purchased or acquired by Linfox).
8. Bidvest shall
apply to each Transferring Employee the terms and conditions of the Linfox TWU
Enterprise Agreement , provided that the wage increases specified in the Linfox
TWU Enterprise Agreement shall apply to Transferring Employees currently
performing driving duties, on an all up rate, according to the methodology set
out in the Mayne Nickless Logistics NSW Pepsico (Drivers) Consent Award 1996.
Bidvest agrees to, as soon as is practicable, take steps to have the agreement
registered in the Industrial Relations Commission of NSW as an enterprise
agreement between Bidvest and the TWU. Other than in accordance with that
agreement, the TWU will not pursue any claims during the term of the agreement,
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. Bidvest shall
consult with the relevant Transferring Employees and the TWU after the Transfer
Date in respect of any restructure of Bidvest’s business, which will, is or is
likely to, have a materially adverse affect of the Transferring Employees.
10. Subject to
further agreement and as provided in this award, Bidvest 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.
11. Subject to the
Industrial Relations Act 1996, any dispute shall be dealt with in the
following manner:
11.1 The
representative of the Union on the job and the appropriate supervisor shall
attempt to resolve the matters in issue in the first place.
11.2 In the event of
failure to resolve the dispute at job level the matter shall be the subject of
discussions between an organiser of the Union and the workplace manager.
11.3 Should the
dispute still remain unresolved the Secretary of the Union or a representative
will confer with senior management.
11.4 In the event of
no agreement being reached at this stage, the dispute will be referred to the
Industrial Relations Commission of New South Wales for resolution.
All work shall continue normally while these
negotiations are taking place.
12. For the
purpose of this award the following definitions shall apply:
'Employees' shall mean employees or former employees of
Linfox 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 Bidvest effective on and from the Transfer Date under the terms
of the Trade Sale.
"Trade Sale" shall mean the purchase by
Bidvest of the transport and distribution business at 350 Victoria Street at
Wetherill Park from Linfox.
"Transferring Employee" means each Employee
who accepts employment with Bidvest under the terms of the Trade Sale and
commences employment with Bidvest.
"Agreement" shall mean an agreement made
under the Industrial Relations Act 1996 that is binding on Linfox in
respect of any Employee including any of those specified in Attachment A which
are binding on Linfox in respect of any Employee.
"Award" means an award or order binding on
Linfox in respect of any Employee made under the Industrial Relations Act
1996 including those specified in Attachment A.
"Linfox" shall mean, Linfox Australia Pty Ltd
(ACN 47 004 718 647).
"Linfox TWU Enterprise Agreement" means the
agreement (including the pay and classification provisions and all other terms)
entered into between the TWU and Linfox in settlement of the Union’s Heads of
Agreement Claim 2002. A copy of which is exhibit "3" in these
proceedings, IRC 5711 of 2003.
"TWU" shall mean the Transport Workers Union
of New South Wales.
"Bidvest" shall mean Bidvest Australia
Limited (ACN 000 228 231) and all subsidiaries of Bidvest Australia Limited,
which employ employees in Bidvest’s businesses.
"Purchasing Entity" means any entity to which
Bidvest transmits any part of the business it has acquired by reason of the
Trade Sale during the term of this award.
"Transfer Date" means Monday 13th October
2003 or such later date as shall be agreed between Bidvest and Linfox pursuant
to the Trade Sale agreement.
13. All Employees
who are offered employment with Bidvest 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 Linfox 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 Linfox.
14. This Award
will commence operating on Wednesday 15th October 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. Linfox TWU
Enterprise Agreement 2003.
2. Transport
Industry - Mayne Logistics Interim Award (1678) published 11 July (340 I.G.
407).
3. Transport
Industry - (State) Award published 20 April 2000 (315 I.G. 192).
4. MPG Logistics
Pty Ltd (Tricon), Wetherill Park Warehouse Agreement 2000 (300 IG 688).
5. Mayne
Nickless (Pepsico) Wetherill Park Consent Award, 1996 published 22 August 1997
(300 I.G. 688).
6. MPG Logistics
Pty Ltd - TWU (NSW Branch) Heads of Agreement.
F.
MARKS J.
____________________
Printed by
the authority of the Industrial Registrar.