T11438
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union and Redline
Industrial dispute - standby allowance - not proved - application dismissed REASONS FOR DECISION [1] On 8 April 2004, the Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union (the applicant), applied to the President, pursuant to s.29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of a dispute with Redline (the respondent) arising out of the alleged non payment of a standby allowance to Mr Nigel Froud. [2] On the 13th May, 2004 a conference was held at the Launceston Supreme Court. Mr Froud was represented by Mr P Baker of the AFMPKIU. Redline was represented by Mr WG Griffiths, Barrister and Solicitor, with Mr P Sydes in attendance. [3] During the conference Mr Baker asserted "The matter will turn, I would suggest, on the interpretation of the instructions afforded to the employee during the course of his employment as to whether or not it is deemed that he was in fact holding himself in a state of readiness so as to qualify for stand by ..." [4] Mr Baker also stated "It is our contention that Mr Froud was instructed by his employer to hold himself available to respond to out of hours calls and to do so as a matter of course. We will and can deduce evidence that he received instructions both in writing and verbally as to the requirements of the employer to do so". [5] Mr Baker cited three articles of written correspondence. Exhibit #A2 TASMANIAN ZONE REDLINE MEMO, refers to the supply of mobile phones to senior staff as well as the introduction of two "Operational Phones". Operational Phones it states "... are not permitted to be turned off or left unattended ..." [6] Mr Baker concluded by referring to the Automotive Industries Award, Part V - Hours of Work, Shift Work and Overtime, Clause 4 - Overtime, subclause (g), which is headed Stand-by, it states:
[7] Mr Griffiths asserts Mr Froud was not expected to sit by his telephone awaiting a possible call back to work. He stated that the employer hoped Mr Froud would answer the phone if it rang, but this was not a condition of him being given a phone. Mr Froud, it is alleged, had the choice to answer the phone or not and to attend a call-in or not. [8] Mr Griffiths stated that there were times when Mr Froud did answer his phone and times when he did not. [9] The respondent has a system in place whereby should the initial phone call not be responded to, a call would be made to the Operations Phone that was always attended. Subsequently arrangements would be made to deal with the particular issue. [10] The senior staff mobile phones were used as a means of communication throughout the working day, not specifically issued for call-ins. [11] The conference was adjourned and a hearing agreed to. My direction was the respondent to supply the applicant with data that the applicant would specify. The information to be provided in good time before the hearing date. The hearing date was set down for 17th June, 2004. [12] On the 17th June, 2004 the matter was brought to hearing. Neither the applicant nor his representative appeared. Ms D Sargent attended as an observer on behalf of Mr Baker. A belated apology for non-attendance by Mr Baker was received by the Commission on the 16th June, 2004. [13] Sufficient time had lapsed from the initial conference on 13th May, 2004 to enable the applicant to specify, obtain and interrogate the data he required to prepare for the hearing. [14] I deemed the hearing should proceed as much as it could with a single party. [15] Mr Griffiths proceeded to explain the documentation made available by the respondent. [16] The phone records show Mr Froud was contacted seven times in six months, but only two of the calls were in reference to possible call-ins. Anecdotally only two other potential call-in situations arose over the last two years through Mrs Walker, the Operations Manager's assistant. On neither of these occasions was Mr Froud available. [17] Mr Griffiths confirmed that there was nothing on Mr Froud's personnel file to suggest he had been disciplined in any way for not responding to attempts to call him in. [18] Applying the principle of natural justice I adjourned the hearing and directed a copy of the transcript of the proceedings and the relevant data supplied by the respondent be forwarded to Mr Baker as Mr Froud's representative. In doing so I gave the applicant until the close of business on the 2nd July, 2004 to respond. [19] There was no response from Mr Baker by the due date. [20] I consequently make a decision on the facts before me. [21] The applicant has failed to demonstrate he was ".... told by his employer to hold himself available to respond to out of hours calls and to do so as a matter of course". [22] The applicant has failed to present evidence "..that he received instructions both written and verbally as to the requirements of the employer to do so". [23] Exhibit #A2, although poorly worded clearly shows the difference in the expectations of a holder of a "senior staff" phone, as Mr Froud was and those of the holder of an Operational phone. [24] The respondent has systems in place to deal with unanswered calls or unavailability of personnel to respond to calls. This demonstrates those phones not nominated as Operational Phones were a communications convenience and not specifically a call-in tool. [25] The evidence of so few call-ins recorded over a reasonable period indicates the lack of need for "stand-by' personnel. [26] The fact that Mr Froud had never been disciplined for failing to responding to call-ins indicates that he was not formally on stand-by, but merely understood to be available if convenient. [27] The applicant has not proven his situation is aligned with Part V - Hours of Work, Shift Work and Overtime, Clause 4 - Overtime, subclause (g) Stand-by of the Automotive Industries Award. It is clear he was not "... required to remain on stand-by, until replaced ...". [28] I duly find for the respondent.
James P McAlpine Appearances: Date and place of hearing: |