Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union -v- Linfox Armaguard [2006] NSWIRComm 1001

Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union -v- Linfox Armaguard [2006] NSWIRComm 1001

The affected employees were not engaged on a casual basis because they performed regular work arranged by rosters fixed at least seven days in advance, so Linfox could not rely on purported casual employment to avoid rostered engagements. Although the evidence about individual communications was insufficient and conflicting, on the balance of probabilities Linfox did not comply with Clause 6(i)(g) of the Award because it failed to properly secure agreement from employees before changing the rostered arrangements. The Commission therefore found an Award breach and, acting according to equity and good conscience, ordered limited payment of two hours ordinary remuneration per affected...

Jurisdiction
Australia
Judgment Date
23 January 2006
Procedural Posture
Notification Under Section 130 of the Industrial Relations Act 1996 [nsw] of an Industrial Dispute Concerning Casual Employees Stood Down / Decision After Attempted Conciliation and Determination on Documentary Material
Outcome
Application upheld in part; Linfox found to have breached Clause 6(i)(g) of the Award and payment orders made.
Legal Topics
['industrial Dispute' 'stand Down' 'casual Employees' 'interpretation of Industrial Instrument' 'unpaid Remuneration' 'award Breach']
['industrial Relations' 'employment Law'] ['industrial Dispute' 'stand Down' 'casual Employees' 'interpretation of Industrial Instrument' 'unpaid Remuneration' 'award Breach']

Case Brief

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Procedural Posture

Notification Under Section 130 of the Industrial Relations Act 1996 [nsw] of an Industrial Dispute Concerning Casual Employees Stood Down / Decision After Attempted Conciliation and Determination on Documentary Material

Legal Issues

  1. 1 ['Whether the affected USU employees were engaged on a casual basis or instead had ongoing employment under regular and systematic rosters.' 'Whether Linfox had power under contract law, the Award, the Agreement or otherwise to stand down or not engage the affected employees without pay on the strike dates.' 'Whether Linfox complied with Clause 6(i)(g) of the Award when altering rostered commencing and ceasing times in emergency circumstances.' 'Whether orders should be made under section 380 of the Industrial Relations Act 1996 for unpaid remuneration.']

Ratio Decidendi

The affected employees were not engaged on a casual basis because they performed regular work arranged by rosters fixed at least seven days in advance, so Linfox could not rely on purported casual employment to avoid rostered engagements. Although the evidence about individual communications was insufficient and conflicting, on the balance of probabilities Linfox did not comply with Clause 6(i)(g) of the Award because it failed to properly secure agreement from employees before changing the rostered arrangements. The Commission therefore found an Award breach and, acting according to equity and good conscience, ordered limited payment of two hours ordinary remuneration per affected...

Court Disposition

Application upheld in part; Linfox found to have breached Clause 6(i)(g) of the Award and payment orders made.

Orders

  • ['The Commission determined that Linfox breached Clause 6(i)(g) of the Award when it failed to properly secure agreement from its employees who were not provided with work or payment in respect of rostered engagements for 19 December 2003, 3 May 2004, 4 May 2004 and 8 November 2004.' 'Linfox is to pay each employee...