Transport
Industry - 1st Fleet Pty Ltd Transfer to 1st Fleet (Freight Forwarding) Pty Ltd
Interim Award
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Application by 1st Fleet
(Freight Forwarding) Pty Ltd.
(No. IRC 6770 of 2005)
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Before Mr Deputy
President Sams
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22 December 2005
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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 1st Fleet (Freight Forwarding) Pty Ltd, 1st Fleet Pty Ltd and
the TWU.
2. By no later
than the close of business on 18 November 2005, 1st Fleet Pty Ltd shall provide
all Employees with the following information relating to their employment
conditions with 1st Fleet Pty Ltd:
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 1st Fleet Pty Ltd
and 1st Fleet (Freight Forwarding) Pty Ltd shall comply with the following
procedure for Employees:
3.1 Individual
Employees, or their representative, shall contact the person(s) nominated by
1st Fleet (Freight Forwarding) Pty Ltd with any queries or disputes relating to
the information.
3.2 The relevant
person(s) shall make enquiries of the relevant payroll department of 1st Fleet
Pty Ltd.
3.3 By 18 November
2005, 1st Fleet Pty Ltd 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 1st Fleet (Freight
Forwarding) Pty Ltd with respect to Transferring Employees.
3.4 1st Fleet
(Freight Forwarding) Pty Ltd 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 1st Fleet
Pty Ltd in accordance with clause 3.3 of this award is correct or,
alternatively, that 1st Fleet (Freight Forwarding) Pty Ltd does not believe it
is correct within 60 business days of 1st Fleet (Freight Forwarding) Pty Ltd
receiving a copy of the consolidated statement from 1st Fleet Pty Ltd.
3.5 In the event
that 1st Fleet (Freight Forwarding) Pty Ltd transmits any part of the business
it has acquired by reason of the transfer to another entity during the term of
this award 1st Fleet (Freight Forwarding) Pty Ltd 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
1st Fleet Pty Ltd and 1st Fleet (Freight Forwarding) Pty Ltd shall provide the
relevant Employee with a consolidated statement containing to the information
as at the transfer date within seven days.
4. Transferring
employees shall be engaged by 1st Fleet (Freight Forwarding) Pty Ltd on the
same terms and conditions upon which the Employees were engaged in their
employment with 1st Fleet Pty Ltd immediately prior to the Transfer Date.
5. 1st Fleet
(Freight Forwarding) Pty Ltd shall recognise all service related entitlements
of Transferring Employees accrued with 1st Fleet Pty Ltd up to the Transfer
Date (as determined pursuant to the process specified in clause 2 and 3 of this
award).
6. 1st Fleet
(Freight Forwarding) Pty Ltd shall, in respect of Transferring Employees,
recognise the length of continuous service with 1st Fleet Pty Ltd (including
continuous service with any entity which was purchased or acquired by 1st Fleet
Pty Ltd, provided service with such entity is recognised by 1st Fleet Pty Ltd
as continuous service with 1st Fleet Pty Ltd) for the purposes of all serve
related entitlements, and from the Transfer Date all such continuous service by
Transferring Employees with 1st Fleet Pty Ltd prior to the Transfer Date shall
cease to be regarded as service with 1st Fleet Pty Ltd and shall be deemed to
be continuous service with 1st Fleet (Freight Forwarding) Pty Ltd for all
purposes including calculating entitlements under an industrial instrument or
industrial relations legislation.
7. In the event
of 1st Fleet (Freight Forwarding) Pty Ltd 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 1st Fleet
Pty Ltd at the Transfer Date pursuant to clause 6 of this award and the period
of service that the employee has had with 1st Fleet (Freight Forwarding) Pty
Ltd from the Transfer Date until the date of termination, save that 1st Fleet
(Freight Forwarding) Pty Ltd shall not be required to make redundancy payments
in respect of any period of engagement with 1st Fleet Pty Ltd (or any entity
which was purchased or acquired by 1st Fleet Pty Ltd) for which a redundancy
payment has previously been paid by 1st Fleet Pty Ltd (or any entity which was
purchased or acquired by 1st Fleet Pty Ltd).
8. 1st Fleet
(Freight Forwarding) Pty Ltd shall consult with the relevant Transferring
Employees and the TWU after the Transfer Date in respect of any restructure of
1st Fleet (Freight Forwarding) Pty Ltd’s business, which will, is or is likely
to, have a materially adverse affect of the Transferring Employees.
9. For the
purpose of this award the following definitions shall apply
'Employees' shall mean employees of 1st Fleet Pty Ltd
who are members or eligible to be members of the TWU and are offered employment
by 1st Fleet (Freight Forwarding) Pty Ltd in connection with the transfer.
‘Transfer’ shall mean the transfer to 1st Fleet
(Freight Forwarding) Pty Ltd of the employees of 1st Fleet Pty Ltd.
'Transferring Employee' means each Employee who accepts
employment with 1st Fleet (Freight Forwarding) Pty Ltd and commences employment
with 1st Fleet (Freight Forwarding) Pty Ltd.
'Award' means an award or order binding on 1st Fleet
Pty Ltd in respect of any Employee made under the Industrial Relations Act
1996.
'1st Fleet Pty Ltd' shall mean 1st Fleet Pty Ltd (ACN
003 475 214).
'TWU' shall mean the Transport Workers Union of Australia,
New South Wales Branch.
'1st Fleet (Freight Forwarding) Pty Ltd' shall mean 1st
Fleet (Freight Forwarding) Pty Ltd (ACN 114 960 477).
'Purchasing Entity' means any entity to which 1st Fleet
(Freight Forwarding) Pty Ltd transmits any part of the business it has acquired
by reason of the transfer during the term of this award.
'Transfer Date' means 7 November 2005 or such later
date as shall be agreed between 1st Fleet (Freight Forwarding) Pty Ltd and 1st
Fleet Pty Ltd.
10. All Employees
who are offered employment with 1st Fleet (Freight Forwarding) Pty Ltd in
accordance with this award shall be deemed to have had suitable alternative
employment obtained for them by 1st Fleet Pty Ltd 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 1st
Fleet Pty Ltd.
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.
12. Anti-Discrimination
12.1 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, ex, marital status, disability, homosexuality, transgender
identity age and responsibilities as a carer.
12.2 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.
12.3 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.
12.4 Nothing in this
clause is to be taken to affect:
12.4.1 any conduct or
act which is specifically exempted from anti-discrimination legislation;
12.4.2 offering or
providing junior rates of pay to persons under 21 years of age;
12.4.3 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
12.4.4 a party to this
award from pursing matters of unlawful discrimination in any State or federal
jurisdiction.
12.5 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.
13. This Award
will commence operating on 22 December 2005 and will have a nominal life of 12
months.
P.
J. SAMSD.P.
____________________
Printed by
the authority of the Industrial Registrar.