TRANSPORT INDUSTRY -FJ WALKER, McKEY, TWU/USU INTERIM AWARD

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

Application by The Transport Workers' Union, and another, an industrial organisation of employees.

 

(No. IRC 1632 of 2005)

 

 

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 McKey, FJ Walker, the USU and the TWU.

 

2.          By no later than the close of business on 6th April 2005 FJ Walker shall provide all Transferring Employees with the following information relating to their employment conditions with FJ Walker:

 

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 FJ Walker and McKey shall comply with the following procedure for Transferring Employees:

 

3.1        Individual Transferring Employees, or their representative, shall contact the person(s) nominated by McKey with any queries or disputes relating to the information.

 

3.2        The relevant person(s) shall make enquiries of FJ Walker’s payroll department.

 

3.3        By 20th April 2005 FJ Walker shall provide each Transferring 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 McKey with respect to Transferring Employees.

 

3.4        McKey shall participate and fully cooperate in this process as the new employer with respect to all Transferring Employees. McKey will accept the information provided by FJ Walker as prima facie correct.  McKey will review the information. If a Transferring Employee believes that the information provided is not correct, they must notify McKey and FJ Walker as soon as reasonably practicable.

 

3.5        In the event that McKey transmits any part of the business it has acquired by reason of the Trade Sale to another entity during the term of this award McKey shall provide a statement containing the matters referred to in clause 2 of this award as at the date of transmission to each employee of McKey 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 date of transmission.

 

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 FJ Walker shall provide the relevant Transferring Employee with a consolidated statement containing the information determined to be correct as at the transfer date within seven days of the determination by the Commission.

 

4.          Transferring employees who accept the offer of employment made by Mc Key shall be engaged by McKey on the same terms and conditions upon which the Transferring Employees were engaged in their employment with FJ Walker immediately prior to the Transfer Date.

 

5.          McKey shall recognise all service related entitlements of Transferring Employees employed by McKey, which are accrued with FJ Walker up to the Transfer Date (as determined pursuant to the process specified in clause 2 and 3 of this award).

 

6.          McKey shall, upon engagement of Transferring Employees, recognise the length of continuous service with FJ Walker (including continuous service with any entity which was purchased or acquired by FJ Walker, provided service with such entity is recognised by FJ Walker as continuous service with FJ Walker) for the purposes of all service related entitlements, and from the Transfer Date all such continuous service by Transferring Employees with FJ Walker prior to the Transfer Date shall cease to be regarded as service with FJ Walker and shall be deemed to be continuous service with McKey for all purposes including calculating entitlements under any award or industrial relations legislation.

 

7.          In the event of McKey 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 FJ Walker at the Transfer Date pursuant to clause 6 of this award and the period of service that the employee has had with McKey from the Transfer Date until the date of termination, save that McKey shall not be required to make redundancy payments in respect of any period of engagement with FJ Walker (or any entity which was purchased or acquired by FJ Walker) for which a redundancy payment has previously been paid by FJ Walker (or any entity which was purchased or acquired by FJ Walker).

 

8.          McKey shall consult with the relevant Transferring Employees and the TWU and/or USU after the Transfer Date in respect of any restructure of McKey’s business, which will, is or is likely to have a materially adverse affect on the Transferring Employees, provided that McKey shall not be required to consult with a Union under this paragraph if none of the affected Transferring Employees are, or are eligible to be, members of that Union.

 

9.          For the purpose of this award the following definitions shall apply:

 

'Transferring Employees' shall mean persons who are:

 

(a)        employees (as at the date of the making of this award) of Australia Meat Holdings Pty Limited in the state of New South Wales in the division of that Company trading as FJ Walker Foods; and

 

(b)        members or eligible to be members of the TWU or the USU; and

 

(c)        offered employment by McKey in connection with the Trade Sale.

 

'Trade Sale' shall mean the purchase by McKey of the transport and distribution/contract logistics business from FJ Walker located principally at:

 

11 Bessemer Street, Blacktown, NSW 2148, and

 

9 Jura Street, Heatherbrae NSW 2324.

 

'Award' means an award or order binding on FJ Walker in respect of any Transferring Employee made under the Industrial Relations Act 1996 including but not limited to, those specified in Attachment A.

 

'FJ Walker' shall mean Australia Meat Holdings Pty Limited (ABN 14 011 062 338).

 

'TWU' shall mean the Transport Workers Union of New South Wales.

 

‘USU’ shall mean the New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union.

 

'McKey’ shall mean the Keystone Group of companies, including McKey Distribution Pty Ltd (ACN 111 374 344), and all subsidiaries and related corporations of McKey Distribution Pty Ltd.

 

'Purchasing Entity' means any entity to which McKey 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 4th April 2005 or such later date as shall be agreed between McKey and FJ Walker pursuant to the Trade Sale agreement.

 

10.        All Transferring Employees who are offered employment with McKey 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 FJ Walker (whether or not they accept that offer) 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 FJ Walker.  For the avoidance of doubt, this Award is intended to be an Order exempting FJ Walker from the requirement to pay severance pay for the purposes of subclause 7(iii) of the Transport Industry - Redundancy (State) Award, and subclause 39(v)(c) of the Clerical and Administrative Employees (State) Award.

 

11.        Subject to the Industrial Relations Act 1996, any dispute relating to any matter arising under this Award shall be dealt with in the following manner:

 

11.1      The on-site representative of the Union/s representing Transferring Employees who are members or eligible to be members 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/s and the workplace manager.

 

11.3      Should the dispute still remain unresolved the Secretary of the Union/s 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.

 

12.1      The obligation to comply with clauses 2, 3, 5, 6, 7 and 8 will cease upon the nominal expiry date of this award.

 

12.2      The obligation to comply with clause 4 of this award will cease:

 

12.2.1               in relation to Transferring Employees performing work at or in connection with the site at 11 Bessemer Street Blacktown, upon approval by the Industrial Relations Commission of New South Wales of an enterprise bargaining agreement, to which McKey and the TWU (in accordance with section 31(1) of the Industrial Relations Act NSW 1996) are parties, replacing the FJ Walker Foods (Transport Workers) Blacktown Agreement 2002;

 

12.2.2               in relation to Transferring Employees performing work at or in connection with the site at 9 Jura Street Heatherbrae, upon approval by the Industrial Relations Commission of New South Wales of an enterprise bargaining agreement, to which McKey and the TWU (in accordance with section 31(1) of the Industrial Relations Act NSW 1996) are parties, replacing the FJ Walker Foods (Transport Workers) Raymond Terrace 2002.

 

13.        Anti-Discrimination

 

13.1      It is the intention of the parties bound by this award to seek to achieve the object in section 3(f) of the Industrial Relations Act 1996 to prevent and eliminate discrimination in the workplace. This includes discrimination on the grounds of race, sex, marital status, disability, homosexuality, transgender identity, age and responsibilities as a carer.

 

13.2      It follows that in fulfilling their obligations under the dispute resolution procedure prescribed by this award the parties have obligations to take all reasonable steps to ensure that the operation of the provisions of this award are not directly or indirectly discriminatory in their effects. It will be consistent with the fulfilment of these obligations for the parties to make application to vary any provision of the award which, by its terms or operation, has a direct or indirect discriminatory effect.

 

13.3      Under the Anti-Discrimination Act 1977, it is unlawful to victimise an employee because the employee has made or may make or has been involved in a complaint of unlawful discrimination or harassment.

 

13.4      Nothing in this clause is to be taken to affect:

 

13.4.1               any conduct or act which is specifically exempted from anti-discrimination legislation;

 

13.4.2               offering or providing junior rates of pay to persons under 21 years of age;

 

13.4.3               any act or practice of a body established to propagate religion which is exempted under section 56(d) of the Anti-Discrimination Act 1977; or

 

13.4.4               a party to this award from pursuing matters of unlawful discrimination in any State or federal jurisdiction.

 

13.5      This clause does not create legal rights or obligations in addition to those imposed upon the parties by the legislation referred to in this clause.

 

14.        This Award will commence operating on 31 March 2005 and will have a nominal term of 12 months.

 

Attachment A

 

1.          Transport Industry (State) Award;

 

2.          Transport Industry - Mixed Enterprises Interim (State) Award;

 

3.          Transport Industry - Redundancy (State) Award (318 IG 458);

 

4.          FJ Walker (Transport Workers) Blacktown Consolidated Award 2000 (323 IG 388);

 

5.          FJ Walker Foods (Transport Workers) Blacktown Agreement 2002;

 

6.          FJ Walker Foods (Transport Workers) Raymond Terrace Agreement 2002; and

 

 

7.          Clerical and Administrative Employees (State) Award.

 

 

 

F. MARKS  J.

 

 

____________________

 

 

Printed by the authority of the Industrial Registrar.