ACT Government as represented by the Territory and Municipal Services Directorate T/A Action (Australian Capital Territory Internal Omnibus Network) v Transport Workers' Union of Australia
[2015] FWCFB 1868
•10 APRIL 2015
| [2015] FWCFB 1868 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Transport Workers’ Union of Australia
(C2014/8179)
SENIOR DEPUTY PRESIDENT HAMBERGER | SYDNEY, 10 APRIL 2015 |
Appeal against the decision [2014] FWC 8234 of Deputy President Kovacic at Melbourne on 20 November 2014 in matter number C2014/5608.
[1] The Australian Capital Territory (ACT) Government as represented by the Territory and Municipal Services Directorate T/A ACTION (Australian Capital Territory Internal Omnibus Network) (the appellant/ACTION) has applied to appeal a decision of Deputy President Kovacic made on 20 November 2014 1. The decision concerned a dispute referred to the Commission pursuant to s.739 of the Fair Work Act 2009 (the Act) in relation to the ACTION Enterprise Agreement 2013-2017 (the 2013 Agreement). The dispute arose in the context of the appellant’s decision to increase the number of broken shifts as part of the introduction of a new bus network - ‘Network 14’.
[2] The appeal was heard in Sydney on 18 February 2015 and final written submissions were lodged on 2 March 2015. The appellant was represented by Mr M Kimber SC. The Transport Workers’ Union of Australia (TWU, the respondent) was represented by Mr O Fagir of counsel.
[3] The Deputy President found that the relevant provisions of the 2013 Agreement require agreement before ACTION can vary the number of full-time and part-time broken shifts included in Network 14.
Background
[4] The clauses in the 2013 Agreement which are particularly relevant to the issue in dispute are set out below:
‘Section G - Communication and Consultation
G1 Consultation
G1.1 There should be effective consultation and employee participation in decisions that affect an employee’s employment. This is essential to the successful management of change.
G1.2 Where there are proposals by the ACTPS to introduce changes in the organisation or to existing work practices, the head of service will consult with affected employees and the union(s).
G1.3 The head of service will provide relevant information to assist the employees and the union(s) to understand the reasons for the proposed changes and the likely impact of these changes so that the employees and union(s) are able to contribute to the decision making process.
G1.4 For the purpose of providing effective consultation:
a) adequate time will be provided to employees and the union(s) to consult with the relevant Directorate;
b) DCC’s will be established, with membership to be agreed by the head of service and the union(s) following commencement of this Agreement; and
c) additional levels of consultation, such as a Workplace Consultative Committee (WCC), may be established with the agreement of the relevant DCC to operate at the local level. Where established these levels of consultation will deal with workplace specific issues before such issues may be raised with the DCC and have membership agreed by the DCC.
G1.5 A Directorate Consultative Committee will:
a) monitor the operation and implementation of this Agreement;
b) consider any proposed new or proposed significant changes to Directorate policy statements and guidelines that relate to the provisions of this Agreement; and
c) exchange information about workplace issues affecting employees; and
d) consult on any existing performance management schemes, and on the development of any new performance management schemes, in the Directorate;
e) meet at least quarterly, unless otherwise agreed; and
f) have terms of reference agreed to by the members of the DCC.
G1.6 The Chief Minister and Treasury Directorate will consult with the union(s) and employees prior to the finalisation of any significant changes or any new provisions in the PSM Act and the PSM Standards and any new service wide policy statements or guidelines that relate to the provisions of this Agreement.
Consultation on Changes to Regular Rosters or Ordinary Hours of Work
G1.7 Where the ACTPS proposes to introduce a change to the regular roster or ordinary hours of work of employees, the following will apply:
a) the head of service must notify the relevant employees of the proposed change;
b) the head of service must recognise the affected employee(s) union or other representative;
c) as soon as practicable after proposing to introduce the change, the head of service must:
i. discuss with the relevant employees the introduction of the change; and
ii. for the purposes of the discussion,-provide to the relevant employees:
● all relevant information about the change, including the nature of the change; and
● information about what the head of service reasonably believes will be the effects of the change on the employees; and
● information about any other matters that the head of service reasonably believes are likely to affect the employees; and
iii. invite the relevant employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities).
G1.8 However, the head of service is not required to disclose confidential or commercially sensitive information to the relevant employees.
G1.9 The head of service must give prompt and genuine consideration to matters raised about the change by the relevant employees.
G1.10 These provisions are to be read in conjunction with other consultative obligations detailed in the Agreement.
Note: In this term “relevant employees” means the employees who may be affected by a change referred to in subclause G1.7.
G1.11 In addition, the employer undertakes that, for the purposes of subclause G1.2, the head of service will recognise and consult with the affected employee(s), their union or other representative.
G2 Dispute Avoidance/Settlement Procedures
G2.1 The objective of these procedures is the prevention and resolution of disputes about:
a) matters arising in the workplace, including disputes about the interpretation or implementation of the Agreement; and
b) the application of the National Employment Standards
G2.2 For the purposes of this clause, except where the contrary intention appears, the term ‘parties’ refers to ‘parties to the dispute’.
G2.3 All persons covered by this Agreement agree to take reasonable internal steps to prevent, and explore all avenues to seek resolution of, disputes.
G2.4 An employee who is a party to the dispute may appoint a representative, which may be a relevant union, for the purposes of the procedures of this clause.
G2.5 In the event there is a dispute, the following processes will apply.
G2.6 Where appropriate, the relevant employee or the employee’s representative will discuss the matter with the employee’s supervisor. Should the dispute not be resolved, it will proceed to the appropriate management level for resolution.
G2.7 In instances where the dispute remains unresolved, the next appropriate level of management, the employee, the union or other employee representative will be notified and a meeting will be arranged at which a course of action for resolution of the dispute will be discussed.
G2.8 If the dispute remains unresolved after this procedure, a party to the dispute may refer the matter to the FWC.
G2.9 The FWC may deal with the dispute in two stages:
a) the FWC will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
b) if the FWC is unable to resolve the dispute at this first stage, the FWC may then:
i. arbitrate the dispute; and
ii. make a determination that is binding on the parties.
G2.10 The FWC may exercise any powers it has under the FW Act as are necessary for the just resolution or determination of the dispute.
G2.11 A person may be assisted and represented at any stage in the dispute process in the FWC on the same basis as applies to representation before the FWC under section 596 of the FW Act.
G2.12 All persons involved in the proceedings under subclause G2.9 will participate in good faith.
G2.13 Unless the parties agree to the contrary, the FWC will, in responding to the matter, have regard to whether a party has applied the procedures under this term and acted in good faith.
G2.14 The parties agree to be bound by a decision made by the FWC in accordance with this clause.
G2.15 However, any party may appeal a decision made by the FWC in accordance with the FW Act.
...
19. Full-time Broken Shifts
19.1 These will be of a duration of 8 hours with 24 minutes banked for rostered days off. Broken shifts will operate over a twelve hour spread, with a minimum break of two hours, finishing no later than 8pm. Full-time broken shifts will attract a 12.5% penalty for all rostered shift hours.
19.2 Broken shift time that accrues towards rostered days off will receive a 12.5% split penalty at the time the shift is performed. No penalty is payable when rostered days off are taken.
19.3 Full-time permanent ACTION employees employed as at 1 November 1998 will only be required to work full-time broken shifts on a voluntary basis.
19.4 The number of full-time broken shifts may vary by agreement from time to time according to the needs of the network.
20. Part-time Straight Shift Employees
20.1 Part-time employees may be employed to perform driving duties comprising of part-time straight shifts, comprising either one piece exclusive of meal breaks or two pieces with a minimum unpaid meal break of thirty minutes up to one hour exclusive of five minutes sign on/ sign off time.
20.2 Part-time straight shift employees shall be paid for a minimum of four hours per period of engagement. Only one rostered period of engagement may be entered into on any day.
20.3 The ordinary hours of work for part-time straight employees shall be based on 20 hours minimum per week and 30 hours maximum per week.
20.4 Part-time drivers shall be paid the same composite hourly wage as full- time employees of equivalent classification. Conditions of employment, as outlined in this Agreement, shall apply on a pro-rata basis.
20.5 Part-time shifts shall be non-rotating. Provisions in Section A – L as they relate to working a permanent night shift shall not apply to part-time shifts.
20.6 The number of part-time straight shifts may vary as agreed from time to time by the parties according to the needs of the network.
20.7 Part-time employees will accrue leave based on their rostered shifts.
21. Part-time Broken Shift Employees
21.1 Part-time broken shifts, will have a maximum span of twelve hours, with a finishing time no later than 8 pm.
21.2 Part-time broken shift employees shall be paid for a minimum of five hours and a maximum of six hours with a 12.5% penalty on the rostered shift hours only.
21.3 The ordinary hours of work for part-time broken shift employees shall be based on 25 hours minimum per week and 30 hours maximum per week.
21.4 Part-time broken shift drivers shall be paid the same composite hourly wage as full- time employees of equivalent classification. Conditions of employment, as outlined in this Agreement, shall apply on a pro-rata basis.
21.5 The number of part-time broken shifts may vary as agreed from time to time by the WSC according to the needs of the network.
21.6 Part-time broken shift employees will accrue leave based on their rostered shifts.
27. Shift Allocation Procedures
27.1.1 Shifts will be allocated in a manner which does not result in unlawful direct or indirect discrimination. The roster of shifts will be constructed based on ACTION’S operational requirements and incorporate standards that will be reviewed by the relevant WSC.
27.1.2 Shifts will be allocated having regard to the following principles:
(a) ACTION’S operational requirements;
(b) recognition of the continuous years of service and experience as an ACTION driver;
(c) the responsibilities of employees as primary care givers; and
(d) the objectives of this collective agreement and in particular the promotion of a balance between work and personal commitments.
27.1.3 Where disputes concerning the allocation of shifts arise the persons in dispute will attempt, in good faith, to resolve the dispute having regard to these principles.
27.1.4 In instances where issues regarding shift allocations cannot be resolved, the changes will be implemented and operate on an interim basis while the matter is processed through the Dispute Resolution Process.
The only exception to this is a harsh and unreasonable change that is confirmed by medical evidence to affect the health of the operator.
27.2 Major Changes to the Network
27.2.1 A network services Workplace Steering Committee (WSC) will assess changes to route services and timetables for annual and significant reviews of network services, as well as major service improvement programs, that may occur up to three times annually. Impact statements will be developed with regard to client service standards and staff conditions prior to implementation, including turnaround times and restart times.
27.2.2 Correct Timings will be ascertained and used in any future network changes.
27.2.3 Shift changes and spills resulting from major or significant changes to route services will be displayed for driver feedback for two weeks prior to shift allocation. Feedback will be documented and special shift allocation processes undertaken through the WSC. Final shifts will be allocated to drivers through the WSC within a two week period.
27.3 Minor Changes to the Network
27.3.1 It is recognised that minor changes sometimes need to be made after networks are introduced in order to provide better customer service. At least two days notice shall be given about minor shift changes.
27.3.2 New shifts shall be provided to the WSC within 2 days of printing, even if the implementation date has not been set. Unresolved minor shift changes will operate and be referred to the WSC for resolution.
27.3.3 The WSC will review shifts for compliance with this agreement, and consult with drivers and regional managers about any concerns they wish to raise on the impact of the proposed changes including:
(a) shift start/finish time - if changed by more than 10 minutes
(b) school runs - if not on shift when selected- 300 series runs - if not on shift
(c) when selected; and
(d) the bus allocated where possible
27.3.4 No change to allocated shift will reduce paid hours. Hours will only be reduced if a shift is vacant or at the time of the shift spill.
27.3.5 If agreement is not reached in regard to a change the dispute resolution process will be followed in accordance with Clause 27.1.4 of this Schedule.’
The Deputy President’s decision
[5] The Deputy President indicated that the dispute required the Commission to interpret the relevant provisions of the 2013 Agreement to determine whether they require agreement before ACTION can increase the number of broken shifts when compared to the predecessor network. He noted that the parties had different interpretations of the relevant provisions of the 2013 Agreement. He stated that it would be appropriate to follow the key elements set out in a recent Full Bench decision - DP World 2 in interpreting those provisions.
[6] The Deputy President said that:
‘[37] On their face, clauses 19.4 and 21.6 of the 2013 Agreement are clear that agreement is required before ACTION can vary the number of broken shifts. Similarly, on its face, clause 27 of the 2013 Agreement appears to deal primarily with the shift allocation procedure once Network changes are settled. Further, based on an examination of the provisions, it is clear that there is no cross referencing of the provisions.’
[7] The Deputy President then analysed the evolution of the relevant provisions as part of the surrounding circumstances and context to the development of the provisions in the 2013 Agreement, in order to ‘assist in clarifying whether clauses 19, 20, 21 and 27 of the 2013 Agreement operate in tandem (as submitted by the TWU) or whether clause 27.2 solely governs major changes to the Network (as advocated by ACTION). He said that:
- ‘[45] An analysis of the relevant provisions shows that:
● when initially introduced in the 1998 Agreement full-time broken shifts were capped at 89, with scope for this number to be varied “as agreed from time to time by the parties according to the needs of the network”;
● specific reference to that cap was removed in the 2004 Agreement;
● the capacity to vary the number of full-time broken shifts by agreement has been a feature of all agreements since the 1998 Agreement;
● at no stage since the 1998 Agreement have any of the clauses concerning full-time broken shifts cross referenced the relevant clause regarding shift allocation;
● the clauses regarding full-time broken shifts have never included any reference to and/or distinction between major and minor changes to the Network;
● the full-time broken shift provisions in the 1998 and 2002 Agreements provided that “In the event of disagreement the matter shall be referred to the AIRC for determination”;
● shift allocation provisions have been a feature of all agreements since the 1998 Agreement, with those provisions consistently providing access to the dispute resolution process in respect of shift changes resulting from minor changes to the Network;
● the 2004 Agreement included for the first time in the shift allocation procedure clause a provision that “The roster of shifts will be constructed based on ACTION’s operational requirements”, with this continuing to be reflected in subsequent agreements;
● until the 2007 Agreement the shift allocation provision provided that “The objective in any shift spill is that the relevant network is able to be implemented six weeks after shifts are made available for display to drivers. This six week period includes display, selection, allocation and rostering” - the provision made no mention of consultation;
● the concept of major changes to the Network was first introduced in the shift allocation clause in the 2007 Agreement and has remained unchanged since then;
● the process established in the 2007 Agreement in respect of major changes to the Network provided for a network service Workplace Steering Committee (WSC) to assess changes to route services and timetables for major network changes and to oversee the final allocation of shifts to drivers; and
● the relevant provisions regarding minor changes to the Network have since the 2007 Agreement provided that “The WSC will review shifts for compliance with this agreement, and consult with drivers and regional managers about any concerns they wish to raise on the impact of the proposed changes including ...”
[46] As previously noted, ACTION contended that if agreement was a prerequisite to major changes to the Network being introduced this would have been reflected in the 2007 Agreement when the major changes to the Network component of clause 27 was first introduced.
[47] However, the above analysis does not support that contention for the following reasons. First, the provisions requiring agreement to vary the number of broken shifts have been a constant in all agreements since 1998, with that requirement not constrained in any way. Second, the reference to minor changes to the Network, including access to dispute resolution process, has similarly been a feature of the shift allocation provisions of all agreements since 1998. Third, there is nothing in the relevant broken shift clauses of all agreements since 1998 which distinguishes between major and minor changes to the Network.
[48] Contrary to ACTION’s contention in this regard and given the evolution of the relevant agreement provisions, I consider it more likely that were agreement not a prerequisite for major changes to the Network, the parties would have made this clear in the 2007Agreement. For instance by stating that the relevant broken shift provisions only applied in respect of minor changes to the Network. However, in the absence of any evidence on this issue this is nothing more than speculation on my part.
[49] ACTION also submitted that clauses 19, 20 and 21 of the 2013 Agreement only operate in respect of changes in the context of an existing Network, i.e. the Network in place at the time an enterprise agreement commenced operation, and not in circumstances where major changes to the Network are proposed during the operation of an agreement. However, this is at odds with the reference to consultation in the shift allocation procedure regarding minor changes to the Network and the requirement for the WSC to review shifts for compliance with the agreement - which would presumably be unnecessary in circumstances where agreement is reached under clauses 19.4 and 21.5. The fact that clauses 19.4 and 21.5 of the 2013 Agreement do not distinguish between major and minor changes to the Network also does not support ACTION’s view in this regard. Taken together, this suggests that the provisions apply in respect of both major and minor changes to the Network.
[50] Drawing on the above, there is nothing flowing from an examination of the relevant provisions in the 2013 Agreement and their evolution since the 1998 Agreement which supports a departure from the literal interpretation of the relevant provisions.’
The Appeal
[9] ACTION filed a notice of appeal on 10 December 2014. The Deputy President’s decision was stayed by consent of the parties on 16 December 2014 pending the determination of this appeal or until further order of the Commission. 3
[10] The notice of appeal filed by ACTION contained eleven grounds of appeal. In its written appeal submissions, ACTION summarised its appeal as involving matters including the following issues:
● The Commission did not have before it at first instance any evidence of the ‘objective framework of fact’ as defined in the sixth principle of interpretation enunciated by the Full Bench of the Commission in The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited 4 (Golden Cockerel) at [41] - other than the previous enterprise agreements entered into by the parties in the last 13 years.
● The Deputy President erred in failing to conclude that the 2013 Agreement, when construed in accordance with the principles enunciated in Golden Cockerel had a ‘plain meaning’, namely that the appellant was at liberty to implement major changes (via the introduction of the new network).
● The Deputy President erred in concluding that the 2013 Agreement did not enable the appellant to vary the number of broken shifts without the agreement of the respondent.
● The plain or literal meaning of clause 27.2 is that the appellant is entitled to introduce a new network during the life of the 2013 Agreement provided only that the express provisions of clause 27.2 are first complied with.
[11] The TWU contended that the Full Bench should refuse permission to appeal on the grounds including that there was no error in the Deputy President’s conclusion that the relevant provisions of the 2013 Agreement require agreement before ACTION can vary the number of full-time and part-time broken shifts included in Network 14.
Consideration
[12] In Golden Cockerel, the approach of the Commission to appeals such as this was explained as follows:
‘[5] An appeal of a decision is not as of right and permission to appeal must first be obtained. Subsection 604(2) [of the Fair Work Act 2009] requires the FWC to grant permission to appeal if satisfied that it is in the public interest to do so. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. The public interest is not satisfied simply by the identification of error, or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:
‘... the public interest might be attracted where a matter raises issue of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...'
[6] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified but examples of considerations which would usually justify the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration; and that substantial injustice may result if leave is refused.
[7] The nature of the decision that is the subject of this appeal depends on a consideration of the determinations the Commission was required to make. In this case the Senior Deputy President was resolving a dispute by arbitration by answering questions that involved interpreting the Agreement. There is no discretion involved in such a task. It follows therefore that, if permission to appeal is granted, we must determine whether the interpretation of the Agreement adopted by the Senior Deputy President is correct. [Endnotes not reproduced]’
[13] The appellant submits that clauses 19.4 and 21.5 have no work to do in relation to the introduction of a new network. Instead, the appellant argues, the issue of changes in the number of broken shifts that occur as part of ‘a major change to the network’ is governed by clause 27.2.
[14] There are a number of difficulties with this proposition. First, the only specific references in the 2013 Agreement to changes in the number of broken shifts are to be found in clauses 19.4 and 21.5. Clause 27.2, on the other hand, is a general provision dealing with changes to the network and makes no specific reference to the issue of changes in the number of broken shifts. As the High Court said in Goodwin v Phillips:
‘Where there is a general provision which, if applied in its entirety, would neutralize a special provision dealing with the same subject matter, the special provision must be read as a proviso to the general provision, and the general provision, in so far as it is inconsistent with the special provision, must be deemed not to apply.’ 5
[15] There is nothing in clauses 19.4 or 21.5 that suggest they are to be read as not applying when major changes to the network are being made. Clause 19 - of which clause 19.4 is a sub-clause - is a stand-alone clause dealing with full-time broken shifts. Clause 21 likewise is a stand-alone clause dealing with part-time broken shifts.
[16] Nor is there anything in clause 27.2 to suggest that it is designed to override or displace clauses 19.4 and 21.5 or, indeed, any other clauses of the 2013 Agreement. It is important to note that clause 27.2 forms part of a clause which is headed: ‘Shift Allocation Procedures.’ While some of the provisions in clause 27.2 might go beyond the strict issue of the allocation of shifts (such as consultation about turn-around and re-start times) it is clear that shift allocation is its primary focus. There is nothing to suggest that clause 27.2 is designed to deal with the issue of changes to the number of broken shifts (as opposed to the way those shifts might be allocated.)
[17] Clause 27.2 does not give ACTION any power to make changes to the network. As the employer it has a general right to make such changes, subject, among other matters, to the obligations set out in the 2013 Agreement. Rather than being a source of power to make such changes, clause 27.2 qualifies the power to make such changes with regard to major changes to the network. For example, it requires the establishment of a Workplace Steering Committee to perform certain functions, it requires ‘correct timings’ to be ascertained and used in network changes, and it provides a process for driver feedback with regard to shift changes and spills.
[18] Clause 27.3.3 deals with shift allocation and related topics in relation to ‘minor changes to the network.’ While the appellant made much of the distinction between major and minor changes to the network, there is nothing in clause 27.3 that suggests clauses 19.4 or 21.5 only apply to the type of minor changes dealt with in clause 27.3.
[19] In conclusion, we find that the interpretation adopted by the Deputy President to be correct and that the plain meaning of clause 19.4 of the 2013 Agreement is that ‘by agreement’ means by agreement - and that the relevant provisions of clauses 19, 20 and 21 of the 2013 Agreement apply irrespective of whether a major or other change to the network is being made.
[20] In the absence of error in the Deputy President’s decision we consider that permission to appeal should be refused, and we do so.
SENIOR DEPUTY PRESIDENT
Appearances:
M Kimber SC for ACTION
O Fagir of counsel for the TWU
Hearing details:
2015
Sydney
18 February
Final written submissions:
2 March 2015
1 Transport Workers’ Union of Australia v ACT Government as represented by the Territory and Municipal Services Directorate T/A ACTION (Australian Capital Territory Internal Omnibus Network)[2014] FWC 8234
2 DP World Brisbane Pty Ltd and DP World (Fremantle) Limited and Others v The Maritime Union of Australia [2014] FWCFB 7889
3 PR559140
4 The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited [2014] FWCFB 7447
5 Goodwin v Phillips (1908) 7 CLR 1 at 14
Printed by authority of the Commonwealth Government Printer
<Price code C, PR562150>
1
4
0