Linfox in the wrong over changes to public holiday work arrangements

By: Brad Gardner


TWU scores a win in a move that affects Linfox employees working on public holidays.

 

Linfox’s decision to unilaterally fiddle with long-established public holiday practices at one of its distribution centres has backfired, with the company ordered to reinstate previous arrangements.

The Fair Work Commission (FWC) upheld a claim from the New South Wales branch of the Transport Workers Union (TWU) arguing Linfox had no right to alter work requirements on public holidays for workers at its Erskine Park facility.

Linfox dumped a decade-long custom when last year it informed night shift workers, without consultation, of new arrangements for days off on public holidays and when penalty rates were to be paid.

Traditionally, employees starting work at 10pm on the day before a public holiday were paid penalty rates for the length of their shift given the majority of it fell on a holiday. In instances where the shift started on a public holiday, workers were allowed to take the day off.

However, Linfox management turned this practice on its head on Australia Day last year when it told workers they would only be given the day off if the shift started on the day before the public holiday.

Furthermore, it decided it would no longer pay penalty rates if a night shift fell on the day of a public holiday on the basis the majority of the shift was on a regular day.

FWC commissioner Michael Roberts found the actions were in breach of the agreement covering the workers, the Linfox and Transport Workers Union Road Transport and Distribution Agreement 2014, because a clause in the document prevented the parties from changing a long-term custom and practice without consultation.

"In January 2015, Linfox attempted to vary the custom and practice arrangements…In my view and determination, this action was not open to Linfox in light of the provisions of clause 5 of the Agreement," Roberts says in his written ruling.

"All in all, I determine that Linfox was not entitled to vary the custom and practice arrangements relating to public holidays and must revert to its previous practice in this regard, with effect from January 2015 onwards."

Linfox employee and union delegate James Mitchell says the company’s decision to alter previous arrangements robbed him of spending time with his family on public holidays.

Under the changes it brought in, Mitchell says he had to begin his shift at 10pm on a public holiday, whereas previously he would have had the day off.

"The part of the change that really affects me is the fact that I now have to work on the night (10pm) of the public holiday. This affects time that I would otherwise have spent with my family," he says.

"It felt like the manager just woke up one day and decided to change our schedules, thus totally changing our lives."

Linfox claims there is no basis in the enterprise agreement or the relevant employment Award to support the union’s claim that the traditional practice should exist and that the pre-2015 arrangements do not amount to an established custom or practice.

The company says the clause is directed at unwritten agreed matters in place at the site with a view to formalising them in writing after agreeing on their meaning.

Linfox says the TWU never tried to formalise the public holiday arrangements and they are "an error in the interpretation of the Agreement" and "Linfox is entitled to correct identified errors".

Roberts says Linfox inherited the public holiday arrangements when it took over the Lion Dairy and Drinks contract from Westgate.

"In any event, the arrangements have been in place for at least eight years and were clearly understood by Linfox management and the affected employees," he says.

"There is certainly nothing before me which would convince me that the application by Linfox of the pre-January 2015 arrangements was the result of either an error or a misinterpretation of the Agreement/Award provision."

During proceedings, the FWC heard that a Linfox manager told workers the change to public holidays was a decree from "the HR [human resources department] and higher ups".

TWU NSW secretary Michael Aird welcomed the ruling and labelled Linfox’s actions "callous and thoughtless".

"The whims of managers shouldn’t determine whether warehouse workers get to celebrate public holidays with their families or are forced to work," he says.

"The nature of night shift work means that your family time is already limited. You work at night so you can support your family and pay the bills. This callous and thoughtless decision to further limit family time was a disgrace. We’re glad the commission has backed our members’ pre-existing right to spend public holidays with their families in this sensible decision."

Aird says the TWU pushed hard to include a clause covering customs and practices in the enterprise agreement and that Linfox needed to reach an agreement with the TWU before any changes could be made.

"We hope this serves as a wakeup call for Linfox managers. Don’t try to arbitrarily upend your employees’ lives. Negotiate fairly and honestly and don’t waste time clogging up the courts," he says.

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