[2016] FWC 4898

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 739 - Application to deal with a dispute

Alcwyn Roberts and Peter Collins
v
Coles Group Supply Chain Pty Ltd t/as Coles
(C2016/42; C2016/43)

DEPUTY PRESIDENT SAMS

SYDNEY, 20 JULY 2016

Applications to deal with disputes under the dispute settlement procedure in an enterprise agreement – abolition of night shift – notification and consultation as to the impact of the change – all employees’ shift preferences unable to be accommodated – selection criteria for afternoon shifts – carer’s responsibilities of applicants – various options proposed – no options accepted – no breach of employer’s obligation to notify and consult – carer’s responsibilities considered – application dismissed.

BACKGROUND

[1] Mr Peter Collins and Mr Alcwyn Roberts were employed on the night shift (7:00pm-5:00am) at Coles Group Supply Chain Pty Ltd t/as Coles’ (‘Coles’) Warehouse Distribution Centre (the ‘Centre’) at Smeaton Grange in New South Wales. The Smeaton Grange Distribution Centre receives products and goods from suppliers and then selects stock ordered by the stores and distributes the stock to 180 Coles supermarkets north of Wollongong in New South Wales. On average, the Centre moves 1.3 million to 1.8 million cartons a week of items required by Coles’ customers, but not fresh produce such as fruit and vegetables. Coles employs around 450 permanent employees and approximately 200 casual employees at the Centre. The applicants and 33 other employees worked permanent night shift on a four day weekly roster.

[2] In early 2015, after Coles’ management had reviewed the operations of the Centre in late 2014, it was decided to remove the permanent night shift and only operate day shift (5:00am-1:00pm or 6:00am-4:00pm), mid shift (10:00am-8:00pm) and afternoon shift (3:00pm-1:00am). As a result, in late April 2015, Coles notified the National Union of Workers (the ‘Union’), its Delegates and the affected team members of the decision to discontinue the night shift from January 2016. In the period between June and October 2015, there were numerous discussions with the Union, Delegates and employees about the reasons for the decision and the expected effects on the night shift team members and measures to ameliorate the adverse consequences for the affected employees. During this period there were dispute resolution conferences before the Fair Work Commission (the ‘Commission’) about the transfer of seven employees for one week in October 2015. The seven had included Mr Roberts and Mr Collins. These proceedings were later discontinued.

[3] In November 2015, there were 35 employees rostered permanently on night shift. Coles was aware that the majority of the night shift employees had expressed a preference to work only on the afternoon shift. However, as there were only 26 positions available on the afternoon shift, Coles decided to develop a selection criteria in the event that volunteers could not be found for the other shifts. By early December 2015, it became apparent that there were insufficient volunteers to move to day or mid shift. In fact, not one of the night shift employees listed a preference for any other shift other than afternoon shift. On 1 December 2015, Coles wrote to all the affected employees to advise of selection criteria to determine the most suitable candidates for the afternoon shift, which was to commence on 18 January 2016. As part of the process, team members were informed that:

‘Further to my correspondence to you of 19 November 2015, we have now received preferences from the majority of team members on the night shift.

I’d like to take this opportunity to thank those team members that completed the preference form correctly.

As there were team members who did not complete their preferences, or for those team members who would like to update their preferences we have extended the deadline to Wednesday 2 December at 8am. Please let us know if you have any questions on how to complete the preference form, either online through mycoles or in hardcopy.

Whilst we would have liked to accommodate all team members into their first preference, it will not be possible to move all current team members from night to afternoon shift. There are currently 26 available positions on afternoon shift only. The remaining team members will be required to move to day shift or mid shift. Notice will be provided in line with clause 17.1.8 of your new shift arrangements.

17.1.8 Any permanent roster change must be provided to the employee in writing with a minimum of thirty (30) days’ notice. Provided that an employee’s roster may be changed by mutual agreement at any time.

To ensure we select the appropriate team members, an assessment and selection process will now be undertaken.

Selection criteria has been based on the requirements of a team member as outlined under clause 10.3 of the enterprise agreement. the team members who score the highest, based on the application of these criteria, will have the first option to move to their preferred shift.

10.3 Team Member

10.3.1. An employee at this level performs work above and beyond the skills of a Team Member in Training and to the level of their training. Such an employee can perform tasks with general supervision, exercising limited discretion within defined procedures:

a. Is trained in and applies basic quality/service requirements.

b. Has knowledge of health and safety in relation to tasks performed and always operates in a safe manner.

c. Can perform a range of tasks \across all areas of the Distribution Centre.

d. Is able to provide training for fellow employees within their work area and skills limitations on skills development and workplace health and safety matters.

e. Is responsible for assuring the quality/service of their work.

f. Is able to exercise good interpersonal and communication skills in dealing with fellow workers.

g. Continues training as required by the Company.

h. Participate in team based workplace activities as required.

If you have any questions about the process, or if you wish to update your shift preferences, please do not hesitate to contact Oliver Vrtkovski on [number supplied] or on [email supplied].’

Some of the employees sought meetings with management to discuss their particular circumstances, including their carer’s responsibilities.

[4] The selection criteria will be discussed in more detail later. However, it is clearly apparent that the selection criteria were based on the key job requirements criteria found at cl 10.3 of the Coles Smeaton Grange (NUW) Regional Distribution Centre Enterprise Agreement 2014 (the ‘Agreement’). These criteria are as follows:

10.3 Team Member

a. Is trained in and applies basic quality/service requirements.

b. Has knowledge of health and safety in relation to tasks performed and always operates in a safe manner.

c. Can perform a range of tasks \across all areas of the Distribution Centre.

d. Is able to provide training for fellow employees within their work area and skills limitations on skills development and workplace health and safety matters.

e. Is responsible for assuring the quality/service of their work.

f. Is able to exercise good interpersonal and communication skills in dealing with fellow workers.

g. Continues training as required by the Company.

h. Participate in team based workplace activities as required.

[5] As none of the employees had preferenced a shift other than the afternoon shift, and the selection process had identified the seven unsuccessful employees, these employees were allocated to the mid shift, as this was where the operational requirements were most acute. Coles met with the affected employees on 14 and 15 December 2015 and notified them of their new rosters in accordance with cl 17.1.8 of the Agreement and gave 30 days’ notice of a permanent roster change.

[6] In January 2016, five of the affected employees, who had not been allocated to afternoon shifts, filed dispute notifications, pursuant to s 739 of the Fair Work Act 2009 (the ‘Act’) seeking, inter alia, orders which, in effect, sought to have them appointed to the afternoon shift due to their personal/family/carer’s responsibilities. Three of these applications were subsequently resolved. However, despite further discussions and conferences with the Commission, no agreement could be reached in respect to Mr Collins’ and Mr Roberts’ circumstances. They sought the Commission’s determination of their disputes. Directions were issued on 29 February 2016 for a hearing on 26 April 2016. However, at the request of the parties, these directions were amended for a hearing date on 5 and 6 May 2016. The applicants were unrepresented and Mr A Pollock of Counsel appeared with Ms S Summerbell, Solicitor for Coles (or the ‘respondent’) with permission granted, pursuant to s 596 of the Act.

Relevant terms of the Agreement

[7] This dispute is brought under cl 8 of the Agreement which sets out the definition of a dispute and the procedure to be followed in dealing with a dispute. Clause 8.1.2 expressly excludes disputes concerning whether the respondent had reasonable grounds to refuse a flexible work request. I set out cl 8 in full below:

8. DISPUTE SETTLEMENT PROCEDURE

8.1 Defined Terms

In this clause:

8.1.1. “Party” means the Company or an employee or employees involved in the dispute and “Parties” means both or all of them;

8.1.2. “Dispute” means any matter concerning the application of the terms of Agreement (not merely whether the Agreement applies at all) or matters arising from the Agreement or relating to the National Employment Standards (other than disputes as to whether the Company had reasonable grounds under subsection 65(5) or 76(4) of the Fair Work Act 2009), but does not include a matter or claim that:

a. would constitute an additional claim pursuant to clause 31 of this Agreement; or

b. relates to matters in respect of which a team member (or former team member) has an immediate right to make a legal claim pursuant to legislation pertaining to termination of employment equal opportunity or unlawful discrimination complaints.

8.2. Dispute Resolution Procedure

The following procedure for the avoidance or resolution of disputes between the Company and employees covered by this Agreement shall apply.

8.2.1. In the first instance, the dispute shall, wherever possible, be discussed by the affected team member and their manager, with the joint intent of achieving a satisfactory outcome.

8.2.2. If the dispute remains unresolved, an appropriate representative of the Company, will assist in resolving the issue. The team member may appoint another person to represent them including a delegate or a team member representative.

8.2.3. Should the dispute still remain unresolved, a senior representative of the Company, and, (where the employee(s) so request), the Union, or the employees’ chosen representative(s) representative may become involved. The team member and/or their representative shall meet as required with the Company representative.

8.2.4. Until the dispute is resolved, but subject to sub clause 8.2.7, all work shall continue in accordance with the practices existing prior to the matter in dispute arising or other agreed arrangements. No party shall be prejudiced as to the final settlement by the continuance or deferment of the work in accordance with this sub clause.

8.2.5. If after the steps in 8.2.1 to 8.2.4 have been followed and, subject to clause 8.2.6, the dispute (or part of it) is still unresolved after having followed all of the above steps, either party may refer the dispute to the Fair Work Commission (“FWC”) for resolution through conciliation and where necessary, by arbitration. An arbitrated decision of the FWC is subject to the appeal rights to the Full Bench of the FWC referred to in Appendix C of this Agreement.

8.2.6. A dispute may also be referred by either party to the FWC for conciliation and arbitration in accordance with Appendix C even if the relevant dispute (or part of it) has not progressed through the steps outlined in clauses 8.2.1 to 8.2.4.
8.2.7. The conciliation and arbitration process for matters referred to the FWC is contained in Appendix C.

8.3. Conduct of the Parties

8.3.1. In order to facilitate this dispute resolution procedure:

a. the Party with the dispute must notify the other Party at the earliest opportunity of the problem;

b. throughout all stages of the procedure all relevant facts must be clearly identified and recorded; and

c. sensible time limits must be allowed for completion of the various stages of discussion. However the Parties must co-operate to ensure that the dispute resolution procedure is carried out as quickly as possible.

8.3.2. The Parties will:

a. If the FWC makes an arbitrated decision and an appeal is not lodged under clause 6 of Appendix C, abide by and give full effect to the arbitration decision; and

b. If an appeal is lodged under clause 6 of Appendix C, abide by and give full effect to the decision of the Full Bench of the FWC in determining the appeal.

[8] A number of other terms of the Agreement were identified by the parties as being relevant to the proceeding. These include the following.

[9] An anti-discrimination clause is found at cl 5 as follows:

5. ANTI DISCRIMINATION

5.1 Anti-Discrimination means that no person should be treated unfairly, on the basis of:

- sex,
- breast feeding
- pregnancy,
- race (including colour, nationality, descent, ethnic or ethno-religious background)
- marital or domestic status,
- homosexuality (actual or perceived)
- disability (actual or perceived, past, present or future),
- age,
- transgender status (actual or perceived),
- carer’s responsibility (actual or perceived).
- political or religious conviction

5.2 The Company will conduct its business activities without regard for sex, pregnancy, breastfeeding, race (including colour, nationality, descent, ethnic or ethno-religious background), age, marital or domestic status, political or religious conviction, homosexuality (actual or perceived), disability (actual or perceived, past, present or future), transgender status (actual or perceived) or carer's responsibilities (actual or presumed) as they are factors which are not related to individual performance and the ability to perform and develop in the workplace.

5.3 In all situations it is the stated policy of the Company that any discrimination is unacceptable and will not be tolerated in any circumstances..

[10] Clause 7 deals with the notification and consultation provisions in respect to major changes, including roster changes. It reads in full as follows:

7. INTRODUCTION OF CHANGE

7.1 The Company's Duty of Notify:

7.1.1 Where the Company has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the Company shall notify the employees who may be affected by the proposed changes and the Union or their chosen representative(s) if any.

7.1.2 'Significant effects' as a result of the above include termination of employment, major changes in the composition, operation or size of the Company's workforce or in the skills required, the elimination or diminution of job opportunities, promotion opportunities or job tenure, the alteration of hours of work, the need for retraining or transfer of employees to other work or locations and the restructuring of jobs.

7.1.3 Provided that where the Agreement makes provision for alteration of any of the matters referred to herein, an alteration shall be deemed not to have significant effect.

7.1.4 Where the Company proposes to introduce a change to an employees’ roster or ordinary hours of work the Company shall notify the employee who may be affected by the proposed changes and their Union or chosen representative(s), if any.

7.1.5 In this clause, ‘chosen representative’ may include an officer, delegate or employee of the Union.

[11] Clause 17 deals with the rostering principles for each category of employment. Sub-clauses 17.1.8 and 17.1.9 are relevant. They read as follows:

17.1.9 An employee’s roster may not be changed with the intent of avoiding payment of penalties, loadings or other benefits applicable. Should such circumstances arise, the employee shall be entitled to such penalty, loading or benefit, as if their roster had not been changed. This provision does not apply if a major shift change is required due to operational change. This process will involve full consultation with the employees and Union.

THE EVIDENCE

[12] The following persons gave written and/or oral evidence in the proceeding:

The applicants;

Mr John Ioane, Distribution Centre Manager for Coles;

Mr Sacho Noveski, Operations Manager for Coles;

Mr Oliver Vrotovski, HR Manager for Coles.

For the applicants

[13] At the outset, I observe that the applicants’ evidence and submissions ranged well beyond the direct issues to be determined before the Commission, being whether Coles had properly complied with its consultation obligations in abolishing the night shift from 18 January 2016. This included material in respect to issues which had previously been before the Commission in proceedings since discontinued. To the extent that this is the case, I do not repeat this material in any detail. I also note that Coles objected to the admission of the statements of four other Coles employees: Mr Thomson, Mr McGrath, Mr Medic and Mr D’Antonio, largely on the grounds of relevance. Coles did not require them for cross examination. While not a criticism, I also note that the applicants’ written material, as is often the case with self-represented parties, did not draw a clear distinction between evidence and submissions. Mr Roberts’ material went largely to the factual background of the dispute. Mr Collins’ materials were somewhat clearer and more easily separated in this respect. I summarise the relevant evidentiary materials below.

[14] Mr Graham Thomson, Mr Philip McGrath, Mr Alexsandar Medic and Mr Troy D’Antonio provided witness statements in respect to their personal circumstances and views as to why they had not been selected during the selection process. As their matters are not before the Commission, I do not intend to refer to their evidence or rely on it in determining the specific claims of Mr Roberts and Mr Collins in this case.

Mr Roberts

[15] In his written materials, Mr Roberts said that in abolishing the night shift, Coles had breached terms of the Agreement in respect to Anti-Discrimination (cl 5), Introduction of Change (cl 7) and the Dispute Settlement Procedure (cl 8). He said that Coles was on notice of his carer’s responsibilities and had not considered the impact that the abolition of the night shift would have on these responsibilities. These carer’s responsibilities included care for a small child, for his elderly father and for his elderly mother in law, all of whom live with him. His carer’s responsibilities had previously been accommodated on the night shift. Moreover, he did not believe that the selection criteria developed by Coles was ‘authentic’.

[16] Mr Roberts explained that from the commencement of his employment in April 2002 he had worked the afternoon shift until its abolition in November 2012. From then until January 2016, he worked the night shift to accommodate his carer’s responsibilities for his family since his father became ill and his brother passed away in 2002. He described the circumstances in which he had started working the night shift and the earlier dispute concerning Coles’ proposal to transfer seven night shift employees, which resulted in the Union filing a s 739 dispute notification on 30 July 2015 (see: para [2] above).

[17] Mr Roberts said that the Union subsequently withdrew its dispute notification on 30 September 2015, but believed that there was ‘no feasible reason’ for it to have been discontinued. He noted that his written request for a flexible work arrangement, made on 9 September was rejected on 23 September. He had served a further dispute notification on Coles on 1 October 2015. He was told to leave Coles’ premises on the basis that the Form F10 application he had served on Coles was not a dispute. He had filed an application for the Commission to deal with a general protections dispute not involving dismissal on 6 October 2015. Deputy President Bull closed the disputes on 23 October 2015.

[18] On 24 November 2015, Mr Roberts received a letter from Coles regarding the abolition of the night shift. He told his Shift Manager, Mr Eric Aumua, that he could only work the afternoon shift and could only start work after 3:00pm due to his carer’s responsibilities. He met with Mr Noveski, Operations Manager and Mr Vrtovski, HR Manager on 1 December 2015. Mr Collins attended with him as his witness. He provided documentation outlining his carer’s responsibilities. Mr Noveski said, ‘So nothing’s changed.’ He replied, ‘No.’ Mr Roberts told Mr Noveski that he needed to start after 3:00pm and asked for an option which would involve this start time. Mr Noveski told him to ‘pick a shift or resign.’ Mr Noveskioffered him Wednesday-Friday and Saturday so as to make up the difference and told him he would need to start at 3:00pm. Mr Roberts insisted that he start after 3:00pm. Mr Noveski did not reply. Mr Roberts emailed Mr Ioane, Mr Weston, Mr Vrtovski and Mr Aumua on 2 December, confirming his preference to start after 3:00pm. He did not receive a reply to this email.

[19] Mr Roberts received a letter, dated 15 December 2015, while he was on sick leave. It was expressed as follows:

‘Further to our correspondence with you of 18th November 2015, and to our meeting with you individually today, I confirm that have now undertaken assessments as outlined in the letter of 18th November 2015. The team members who received the highest scores, pursuant to that assessment process, will be eligible to receive their first shift preference.

Unfortunately, you were not selected as one of the strongest performers, pursuant to the assessment process. As a result, unfortunately I am unable to offer you your first shift preference, which I understood was for the afternoon shift.

In accordance with clause 17.1.8 of the Coles Smeaton Grange (NUW) Regional Distribution Centre Enterprise Agreement 2014, Coles now notifies you that your new permanent shift, from Monday 18 January 2015 will be Mid Shift, Tuesday – Friday from 10:00am – 20:00pm [sic].

If you have any suggestions about your new shift, or about the process which ahs been undertaken to determine shift selection, please do not hesitate to contact Oliver Vrtkovski on [number supplied] or on [email supplied].

Mr Roberts described this letter as ‘generic’ and ‘misleading’.

[20] Mr Roberts said that he spoke to his Union Organiser on 22 December 2015. He and four other affected members met with the State Secretary on 31 December. The State Secretary said that he would meet with Coles’ senior management to discuss the issue. Mr Roberts provided all of his relevant documentation to him. Another employee, Mr Troy D’Antonio had written to Coles, on behalf of the five affected employees (including Mr Roberts), seeking to invoke the status quo provisions of the dispute settlement procedure (cl 8.2.4). Coles had responded by relying on its ability under cl 17 of the Agreement to advise of new rosters with 30 days’ notice, which it said had been provided. Further, Coles was of the view that the status quo would involve the employees working the notified new roster operative from 18 January 2016. Mr Roberts wrote to Coles on 18 January 2016 to advise that he would not be able to work the new shift until the dispute before the Commission had been resolved.

[21] Mr Roberts believed that Coles had discriminated against him by allocating him to manual stock selection duties 90% of the time since receiving the letter advising of the abolition of the night shift. As a result, he had suffered a workplace injury to his shoulders, for which he received workers’ compensation. He believed that the seven team members who were not selected according to the selection criteria, were those who had made complaints about management to Coles’ Head Office or to the Commission. He had received a ‘discussion record’ as to his attendance on 16 September 2015 and had been on probation during the selection process. He claimed the selection criteria had not been applied objectively.

[22] While Mr Roberts acknowledged that Coles had discussed the change with the affected employees, it had not discussed the full extent of the effects on his own employment. Nor had it complied with the status quo provisions of the Agreement (cl 8.2.4).

[23] In responding to Coles’ submissions, Mr Roberts insisted that the facts surrounding the ‘preliminary transfer’ issue were highly relevant as they demonstrated that he had been treated differently, due to him having filed applications with the Commission. Mr Roberts put that issue estoppel was not relevant in this case as the matters before Deputy President Bull were only resolved on the basis of a temporary reinstatement of the night shift. Mr Ioane had given evidence that this decision was actually made in order to accommodate an increase in volume from another Distribution Centre.

[24] Mr Roberts claimed that he had never seen the letter dated 17 September 2015 from Mr Ioane. Given that Coles had not discussed its selection criteria until November 2015, Coles could not now assert that its reference to giving night shift workers preference to work on the afternoon shift, was meant as being dependent on those workers satisfying the selection criteria. Mr Roberts said that Mr Ioane had dismissed his considered alternative option. He had written to Mr Ioane on 19 February 2016 to suggest an alternative, as he was having difficulties paying his bills. On 23 February, he rejected a counter offer put by Mr Ioane. Mr Roberts disputed Coles’ characterisation of the interim arrangement as accommodating his personal circumstances. He was working minimal hours while this matter was being arbitrated.

[25] Mr Roberts denied that Mr Noveski had suggested to him on or around 1 December 2015 that he work Monday to Saturday between 5:00am and 8:00pm. He believed that Mr Noveski’s view that his personal circumstances would not change the outcome of the selection process was proof that a decision had been made prior to the selection process, which was due to take place between 5 and 7 December 2015.

[26] Mr Roberts said that he accepted Mr Aumua’s offer to speak to Mr Ioane on his behalf on 4 March 2016 in an effort to resolve his underlying dispute. When Mr Aumua returned, he advised that a meeting was organised at the beginning of Mr Roberts’ shift on 9 March. However, this meeting never took place. Mr Roberts said that he had approached his line manager, Mr Evan Lam, in relation to a pay discrepancy on 11 March. Mr Lam presented two documents for him to sign, being an amendment to his part time contract of employment and a notice of acceptance of a part time roster. Mr Roberts declined to sign both documents.

[27] Mr Roberts did not believe that the assessment panel process and the merit selection criteria were undertaken in a fair and equitable manner. He sought a direction from the Commission that he be placed on the existing afternoon shift roster, or if the Commission had no jurisdiction to do so, that he ‘seek severance so that I could leave and search for suitable fulltime employment which would allow me [to] proceed in caring for my family.’

[28] In cross examination, Mr Roberts agreed that his then Shift Manager, Mr Steve Weston had spoken to him on 29 April 2015 to advise that the night shift would be closing in January 2016. He had not been on the night shift on 28 May 2015 when Mr Ioane had come in to talk to the night shift, as he had taken his mother to a sleep apnoea test that night. Nevertheless, Mr Roberts was aware that Mr Ioane had said that the night shift would be replaced by an afternoon shift in January 2016.

[29] Mr Roberts did not accept that Mr Noveski and Mr Vrtovksi had attended a number of shift meetings at the beginning of night shift from July 2015 onwards to discuss the closure of the night shift. He had only personally dealt with them about three times. He further denied that Mr Ioane had attended a night shift in early December 2015 to advise that a selection process would need to be undertaken for the afternoon shift.

[30] Mr Roberts acknowledged having received a letter from Mr Vrtovski dated 19 November 2015, although he was injured at the time and off work. The letter confirmed that the final night shift would be worked on 15 January 2016. It further set out that the employees would be required to move to a number of different shifts, being the 5:00am-1:00pm 6:00am-4:00pm (the morning shifts), 10:00am-8:00pm (the mid shift) and 3:00pm to 1:00am (the afternoon shift). Employees were required to nominate their preferences by 27 November. The letter expressed that Coles would attempt to accommodate employees’ preferences.

[31] Mr Roberts said that after receiving this letter, he had approached his Shift Manager, Mr Ramuyer, to advise that he could only work the afternoon shift and, further, that he could only start after 3:00pm. He had received a letter dated 1 December 2015 from Mr Ioane, which set out that it would not be possible to move all night shift employees to the afternoon shift and that the remaining employees would be moved to the morning or mid-shifts. The letter also set out that Coles would undertake an assessment and selection process in accordance with cl 10.3 of the Agreement. Mr Roberts later conceded that he was disputing the outcome of the selection process, not the process itself.

[32] The letter advised employees to contact Mr Vrtovksi if they had questions and Mr Roberts said he had spoken to Mr Vrtovski and Mr Noveski immediately before receiving the letter. This meeting was organised by Mr Ramuyer. Mr Roberts denied that Mr Noveski had said that he may be able to start a roster commencing after 5:00pm if he was successful in being selected for the afternoon shift or that he would work to find an alternative which might include Saturdays.

[33] Mr Roberts recalled receiving a letter from Mr Ioane in mid-December 2015 advising that he had not been successful in being selected for the afternoon shift and that he was to commence working on the mid-shift when the night shift closed in January 2016.

[34] Mr Roberts said that on 12 January 2016, Mr Ioane approached a number of employees who had ongoing concerns about moving to the mid shift. He had not raised any of his own issues at this time as he thought it was just a team talk conducted by Mr Weston. He accepted Mr Ioane had written to him on 20 January 2016, asking him to get in contact to discuss other options. On 29 January 2016, Mr Ioane had also offered him 3:00pm-8:00pm shifts over four weekdays and 10:00am-8:00pm on Saturdays. Mr Roberts put a counter-proposal of starting at 3:30pm on Wednesday to Friday, subject to his fiancé being able to change her hours. He acknowledged that Mr Ioane had made a further counter-offer.

Mr Collins

[35] In his written statement, Mr Collins described his employment with Coles since July 1996. He had begun working at the Centre when it opened in 2002, originally working on the afternoon shift until its closure in 2012, when he began working on the night shift. At the time of the closure of the afternoon shift in 2012, the employees had been properly notified and consulted and transitional arrangements concerning penalty rates were entered into with the affected employees. In contrast, the closure of the night shift on 15 January 2016 had been disputed since it was first raised on 15 April 2015, especially with the seven employees who had advised of family and carer’s responsibilities. Mr Collins believed that Coles was discriminating against him and attempting to constructively dismiss him. He had carer’s responsibilities for his fiancé, who had a mental health condition and for his stepchildren.

[36] Much of Mr Collins’ written evidence went to discussions between the parties between April and November 2015 and I do not repeat it in detail here, suffice to observe that he was highly critical of the Union’s conduct on behalf of its members and Coles for failing to take his carer’s responsibilities into account. He also outlined attempts he had made from September 2015 to enter into flexible work arrangements. These were refused by Coles, purportedly on business grounds.

[37] Mr Collins said that after witnessing a meeting between Mr Ioane and another affected employee to discuss concerns as to that employee’s newly allocated roster, he had formed the view that further discussion with Coles was pointless.

[38] Mr Collins had filed his own s 739 dispute and an application for the Commission to deal with a general protections dispute not involving dismissal (s 372) on 2 October 2015. He referred to Mr Ioane’s proposal on 12 October 2015 to allow the employees to work on the night shift until January 2016 and the backpayment of shifts that Coles had not allowed him to work. He claimed Mr Ioane had said that he would offer him the afternoon shift in January 2016.

[39] Mr Collins said that on 1 December 2015, he received a letter from his Team Manager, Mr Stephen Weston, which referred to earlier correspondence that was purportedly sent to him on 19 November regarding the closure of the night shift and the requirement for team members to complete shift preference forms. He disputed having received the earlier correspondence and asked Mr Weston for a copy. By the time he received a copy on 7 December 2015, he only had 12 hours to complete a shift preference form. He wrote to the new Shift Manager, Mr Erick Aumua, about the process, confirming his preference for the afternoon shift, and setting out his carer’s responsibilities.

[40] Mr Collins stated he was present on 12 January 2016 when Mr Ioane had explained to Mr Thomson and Mr D’Antonio that they were to be assessed in relation to five criteria. He was critical of the efforts made by Mr Aumua and Mr Robert Giles (Team Manager) to explain the selection criteria the following day.

[41] In cross examination, Mr Collins agreed that on 28 April 2015, Mr Ioane had announced the removal of the night shift to the night shift Union Delegates, including himself and Mr D’Antonio, as a result of efficiencies achieved by new ‘picking’ technology. Mr Collins immediately advised the Union. Mr Weston notified the other night shift employees the next day. A number of issues were raised by the affected employees, but could not be discussed at length in the short time than was allotted.

[42] Mr Collins accepted that there had been a meeting on 22 May 2015 between Mr Ioane, two Union Organisers (Ms Bernardi and Mr Nero) and the available site Delegates. Mr Ioane had advised, in response to a question from Ms Bernardi, of the reason for closing the night shift, being the efficiencies achieved by the new ‘picking’ technology. It was also said that the night shift employees would have first preference to return to the night shift, should it ever reopen. Arrangements would be made to mitigate loss of shift loadings and other issues. Mr Ioane had held a further meeting with the affected employees on 28 May 2015 and confirmed that the reason for the closure of the night shift was the efficiencies achieved by the new ‘picking’ technology. He confirmed that the night shift would close in January 2016.

[43] Mr Collins recalled that Mr Noveski had attended two or three start of shift meetings between July and December 2015, but not Mr Vrtkovski. He did not accept that Mr Noveski and Mr Vrtkovski had attended meetings regularly, but agreed that they talked about the night shift when they did attend.

[44] Mr Collins acknowledged that he received a letter from Mr Ioane dated 19 November 2015, which identified that the final date for the night shift would be 15 January 2016 and that he would need to move to day shift, mid shift or afternoon shift. However, he claimed he had not received the letter when it was first distributed; rather, he received it on 7 December 2015, as was the case with the letter dated 1 December 2015 (see para [3]). The latter letter made reference to the development of selection criteria to choose who would be allocated to the afternoon shift.

[45] Mr Collins had indicated his preference for the afternoon shift and had written to Coles about his concerns as to the selection criteria. In this letter, he advised of his preference for afternoon shift and proposed an alternative of Monday to Friday, 4:57pm-1:00am. He could not recall if Mr Ioane had addressed the night shift on the selection criteria in early December 2015, but he remembered somebody may have done so. However, he claimed the discussion of the selection criteria was not clear or detailed. Mr Collins agreed he had received a letter dated 15 December 2015, which advised that he would be assigned to mid shift and directing him to contact Mr Vrtkovski, if he had questions.

[46] Mr Collins accepted that Mr Ioane spoke with team members on the night shift on 12 January 2016. He was there as a support person for Mr Medic and had not raised any issues on his own behalf. Mr Ioane had emailed Mr Collins to say that it was unfortunate that he could not offer him a spot on the afternoon shift, and he would continue to work to determine if there were other options. On 29 January, Mr Ioane had put the option of another shift, being five days a week, on days of his choice between Monday and Saturday, between 2:00pm and 8:00pm. Mr Collins had rejected this offer and proposed a shift of 4:57pm to 1:00am, five days a week. Nevertheless, his main complaint was that he had not been allocated to the afternoon shift.

For the respondent

Mr John Ioane

[47] Mr Ioane’s responsibilities include the supervision of Managers at the Centre and ensuring the safety and well-being of the people who work there. He also has responsibility for the Centre’s financial performance. He has six direct reports.

[48] Mr Ioane described the introduction of the Warehouse Management System (WMS) at the Centre in September 2014. By utilising WMS, the Centre was able to:

(a) cut down the travel time of pickers and forklift operators;
(b) reduce indirect hours on administrative work; and
(c) observe what team were doing what and more effectively manage their time.

These changes prompted a review of the span of hours at the Centre, because rather than moving stock 24 hours a day, it could reduce this period to between 5:00am and 8:00pm, without affecting results and performance. However, the Centre still had to remain open to 1:00am to receive inbound goods from suppliers.

[49] Mr Ioane said that in January and February 2015, he initially considered closing the night shift by October 2015. However, due to the Christmas period requirements, it was decided to extend the date to January 2016. Mr Ioane’s evidence dealt firstly with the decision in early 2015 to transfer seven night shift team members to day and mid shift.

[50] Both Mr Collins and Mr Roberts submitted requests for flexible work arrangements, lodged dispute applications and general protections applications in respect to being transferred from night to mid shift in October 2015. This proposal did not come to pass and the seven affected night shift employees were restored to night shift, with no loss of income. Both Mr Collins and Mr Roberts were informed that they were to remain on night shift until the shift ended in January 2016. Mr Ioane had told them that preference would be given to night shift team members for the afternoon shift, subject to them meeting the selection criteria. All of the associated Commission proceedings were discontinued. Accordingly, these matters are not directly relevant to the present proceedings.

[51] On 19 November 2015, Mr Ioane issued a letter to all night shift team members in which he stated that:

‘(a) the final Night Shift would be worked by all Night Shift Team members on 15 January 2016;

(b) from 18 January 2016, there would be no Night Shift operating at Smeaton Grange, and team members on the Night Shift would be required to move to Day Shift, Mid Shift or Afternoon Shift;

(c) an online portal had been set up by Coles Central Recruitment to enable team members to select their shift preferences and preferred days;

(d) team members had 8 days to log onto the Online Portal and complete the shift preferences; and

(e) to the greatest extent possible, Coles would attempt to accommodate individual preferences.’

[52] Mr Ioane said that 31 night shift team members indicated their preference for afternoon shift only, one identified three preferences and Mr Roberts did not submit a form. As a result, Mr Ioane formed the view that it was necessary for a selection criteria model to determine who would move to afternoon shift.

[53] On 1 December 2015, Mr Ioane wrote to the affected employees and stated:

‘(a) team members had additional time to submit their preferences;

(b) whilst Coles would have liked to have accommodated all team members’ first preference, it would not be possible to move all team members to Afternoon Shift, and there were only 26 positions available on Night Shift;

(d) selection criteria would be developed based on clause 10.3.1 of the EA; and

(e) if team members had any questions on the process, or if they wished to update their preferences, they could contact me.’

[54] An assessment panel was assembled and the affected employees were advised their assessments would be based on their performance and conduct over the previous twelve months. Neither Mr Collins or Mr Roberts raised any concerns about this process, despite being invited to do so. At the conclusion of the selection assessment, a calibration process was conducted in which Mr Ioane asked specific questions of the assessment panel about how they arrived at their conclusions. Minor changes were made, but they did not affect the overall scores. Mr Roberts and Mr Collins received the two lowest scores of the 35 team members.

[55] It was Mr Ioane’s evidence that there were ongoing communications and meetings with Mr Collins and Mr Roberts concerning their preference for the afternoon shift in light of their family/carer’s responsibilities. Mr Ioane had written to both of them on 15 December 2015, indicating that as they had not preferenced any other shift, they were both to move to mid shift (Monday – Friday, 10:00am – 8:00pm). On 6 January 2016, Mr Collins sent an email to Mr Ioane and others, in which he complained about not having received paperwork and expressing his view that Coles should have accommodated his carers’ responsibilities. On 8 January 2016, Mr Roberts filed the present application.

[56] Mr Ioane attended the night shift on 12 January 2016 to meet with team members to discuss their concerns. He said that neither Mr Roberts or Mr Collins raised any issues on their own behalf. Mr Ioane responded to the dispute, in writing, by offering day shift, with two start and end times and/or a change of working days. On 18 January 2016, Mr Roberts and Mr Collins advised Mr Ioane that they would not be attending mid shift and invoked the status quo provision in the Dispute Settlement Procedure of the Agreement.

[57] Mr Ioane said he made further efforts to meet with both of them, in order to explore alternative options. Following a conference in the Commission before Hamberger SDP, Mr Ioane advised Mr Roberts that he could offer him an arrangement of 3:00pm-8:00pm on four days, Monday-Friday (at his choosing) and Mr Collins an arrangement of five days working 2:00pm-8:00pm. These offers were rejected. Mr Roberts proposed that he and four of his colleagues be offered first preference for any vacancy arising on afternoon shift and proposed that his hours be 3:30pm-1:00am Wednesday to Friday and Saturday, 10:00am-8:00pm. Mr Collins proposed working 4:57pm – 1:00am, five days a week, in order to maintain his full time status and allow him to care for his fiancé and family.

[58] Mr Ioane responded in part as follows:

‘As discussed in the Fair Work Commission, it is operationally not possible at this time for Coles to agree to a 1am finish. We had thought that this was made very clear on 28 January. It is disappointing that you are not making genuine effort to resolve your matter with us. We are open to a wide range of options, but a 1am finish is not one of them. We understood from your comments at the Conference that you would be open to the above proposal in terms of hours and we not that the days are entirely flexible between the hours of 5am to 8pm, Monday to Saturday. The Company considers your position is unreasonable, and we have now regressed since the conference.’

[59] Mr Ioane said that a further option was put to Mr Roberts of 3:00pm-8:00pm, Wednesday – Friday and 10:00am-8:00pm, Saturday. He was now working these arrangements (save for a 3:30pm start Wednesday – Friday). A further offer was made to Mr Collins of 2:00pm-5:00pm, five days per week, except Sunday, to be determined by him. This offer was rejected.

[60] In response to Mr Roberts’ claim that the selection process had never been fair or equirable and that team members who had made complaints were not selected, Mr Ioane said that this was not a relevant consideration. Mr Roberts and Mr Collins were assessed across the full range of duties over twelve months and came out the poorest performers.

[61] As to Mr Collins’ complaints about a lack of consultation, Mr Ioane said there were many discussions with employees, Union Organisers and Delegates about the change and proposed measures to mitigate the adverse effects for employees.

[62] In cross examination, Mr Ioane was asked whether various communications to the Union and the affected employees constituted consultation He agreed they did.

Mr Vrtkovski

[63] Mr Vrtkovski is responsible for all human resources matters at the Centre. Mr Vrtkovski described the introduction of the WMS as a ‘voice picking’ system, which replaced the use of paper-based methods of selecting stock. The result was that labour was not required over the same periods of time. Coles decided to cease operating the night shift and to introduce an afternoon shift from 3:00pm-1:00am each day. In early 2015, he had regular discussions with Mr Ioane and Mr Noveski regarding the removal of the night shift.

[64] Mr Vrtkovski’s evidence dealt firstly with the proposal to reduce the night shift by seven to eight team members in October 2015. For the reasons earlier stated, I will not detail his evidence. Relevantly, however, Mr Vrtkovski was aware around this time that Mr Roberts had caring responsibilities for his mother, father in law and three year old child and that Mr Collins had carer’s responsibilities for two stepchildren (4 and 11) and his unwell partner, who does not work.

[65] It was Mr Vrtkovski’s later evidence that between 14 July and 1 December 2015, he had attended a number of informal discussions with the night shift team members and regularly attended ‘start of shift’ meetings. He formed the view that most, if not all of the night shift team members, preferred the option of moving to the afternoon shift. In mid-November 2015, it became clear that it would not be possible to move all night team members to afternoon shift and that about eight would need to move to another shift.

[66] It was Mr Vrtkovski’s view that the affected team members should be invited to select their preferred alternative shift, and if they could not all be accommodated, Coles should apply a merit selection process based on a team member’s performance. He had hoped to avoid using a selection criteria, but believed this to be the fairest means of determining who should be allocated to alternative rosters. This method was recognised by Coles across the broader distribution network. He was not aware of Coles using any other method, such as ‘last on, first off’.

[67] Mr Vrtkovski said he developed the selection criteria based on the key job requirements set out in cl 10.3.1 of the Agreement. Mr Vrtkovski described the process and outcomes as earlier set out by Mr Ioane (see para [54]).

[68] It was Mr Vrtkovski’s evidence that on 30 November and 1 December 2015, he and Mr Noveski attended start of shift meetings to explain the selection process and answer questions. No affected team member raised any concerns, or asked any questions about the selection criteria. The first time he was aware of any issues raised about the process was when he read Mr Roberts’ statement for these proceedings around 28 March 2016.

[69] Mr Vrtkovski said that in early December 2015, arrangements were made to assemble the assessment panel and inform them of the guidelines they were to follow (Annexed as ‘Annexure A’). The assessment panel applied the criteria to all 35 team members. Each individual employee was discussed and scored out of five against each criterion. Consideration was given to performance in different functions, such as stock selection, loading, unloading, putaways and letdowns. As all team members had been rostered across all functions in the twelve months from 1 July 2014, Mr Vrtkovski said that the 25 team members with the highest scores were notified that they had been allocated to the afternoon shift. Mr Roberts and Mr Collins scored the lowest and were not selected. Mr Vrtkovski noted that Mr Roberts had not even submitted a preference form.

[70] In reply to Mr Roberts’ statement, Mr Vrtkovksi denied that Coles had not provided him with alternative options to help him with his carer’s responsibilities. He is presently working a modified roster with shifts between 3:30pm-8:00pm. Mr Vrtkovski further denied that Mr Noveski had told Mr Roberts on 1 December 2015 that he had to ‘pick a shift or resign’.

[71] Mr Vrtkovski acknowledged that two unsuccessful applicants from night shift, had subsequently moved to afternoon shift after two vacancies arose. These two team members were the next highest scoring in the selection process.

[72] In cross examination, Mr Vrtkovski reiterated that he considered the selection criteria to be ‘fairly constructed’, because it was based on the key job requirements in the Agreement. Mr Vrtkovski conceded that the merit based process had been previously used at the Centre, but not in respect to rostering arrangements.

Mr Sacho Noveski

[73] Mr Noveski is responsible for overseeing the Eastern Creek Distribution Centre and was Operations Manager at Smeaton Grange between December 2014 and February 2016. His responsibilities included health and safety, the management of suppliers and costs of the operation in servicing 180 stores in New South Wales.

[74] Mr Noveski described a conversation he had with Mr Roberts on 1 December 2015. The meeting involved Mr Collins (in support) and Mr Vrtkovski. He said the conversation was in words to the effect of:

Mr Roberts:	I am only able to work the afternoon shift due to my personal circumstances. I cannot work any other shift.
Mr Noveski:	We will consider this information and then get back to you.
Mr Roberts:	What will happen if you can’t move me to the afternoon shift?
Mr Noveski:	Surely we can work around it. There are lots of options. We might be able to look at different start times. We can pretty much offer you any other shift, Monday to Saturday, starting from 5am and finishing at 8pm. So we can be flexible.
Mr Roberts:	But what if I can’t do it?
Mr Noveski:	There is still a lot of options that we can look at. We can look at Saturday shifts and different hours. You could move to part-time. You might have to consider your hours and contract.

Mr Noveski then met with Mr Vrtkovski. It was Mr Noveski’s view that Mr Roberts’ personal circumstances did not change the outcome of the selection process. He did not consider it appropriate to place him ahead of other team members, as almost all of whom had received a higher score. Nevertheless, Coles was still willing to work around Mr Roberts’ personal circumstances, without compromising the selection process. The conversation resumed with Mr Roberts. Mr Noveski told him:

‘Sorry Alcwyn, we still feel as though we need to go ahead as planned. We are happy to consider other options however. You can work any other shift, Monday to Saturday between the hours of 5am to 8pm. And I’m open to a part-time arrangement too, if you would prefer to do that.’

Mr Noveski denied that he had said, ‘Pick a shift or resign’ at any stage. He was confident that the hours proposed could be worked around. Mr Roberts did not approach him again about alternative options. At no time did Mr Collins speak to him about any issues with the decision not to allocate him to afternoon shift.

[75] In re-examination, Mr Noveski was asked whether the selection process was conducted before the conversation with Mr Roberts of 1 December 2015. While Mr Noveski could not recall exactly, he had this conversation in the event that Mr Roberts was unsuccessful in the process (It was Mr Vrtkovski’s evidence that the selection process was completed on 3 and 4 December 2015).

SUBMISSIONS

For the applicants

[76] As foreshadowed above, much of Mr Collins’ submissions went to the ‘preliminary transfer’ issue and the various proceedings before Deputy President Bull in September/October 2015. He resisted Coles’ submission that the ‘preliminary transfer’ issue was subject to issue estoppel on the basis that the issues of ‘preliminary transfer’ and ‘closure’ were confused by Coles. He later submitted that if Coles’ submission as to issue estoppel was accepted, the Commission should find that consultation was undertaken only in relation to the ‘preliminary transfer’ issue. He noted that the Union was not involved in any negotiations after September 2015.

[77] In his written materials, Mr Collins put that Coles had repeatedly failed to provide the appropriate notification period of 30 days for the employees who were affected by the abolition of the night shift. The Company had also breached cl 17.1 9 of the Agreement. In settling the matter before Deputy President Bull, Mr Collins had followed His Honour’s direction to attempt to resolve the dispute. In any event, Mr Collins described the consultation process engaged in by Coles as confusing, ambiguous and coercive. Coles had not taken measures to avert or mitigate significant effects on the relevant employees. It did not provide written information as to the closure of the night shift until 19 November 2015 and, in Mr Collins’ case, until 7 December 2015. This failure on Coles’ part, was why he did not submit his shift preference form.

[78] Mr Collins believed that the use of absenteeism as a merit selection criterion was discriminatory. Further, all seven of the employees who were denied a position on the afternoon shift, had at some time made a complaint against Coles’ management or a statement in support of another who made such a complaint. The use of a ‘last on, first off’ approach in previous shift changes and closures disadvantaged those who had previously been subject to such an approach. He observed that cl 10.3.1 of the Agreement does not mention performance. Nor was performance mentioned in the letter dated 1 December 2015. In any event, Coles had unfairly limited his duties during the consultation period. He rhetorically asked why, if his performance was so inadequate, that he had not previously been counselled?

[79] Mr Collins claimed that Coles’ witness evidence did not establish that cl 7 of the Agreement was not applied to the closure of the night shift. Indeed, he said that the employees were not notified of the closure of the night shift until 19 November 2015. They were then notified of the selection criteria on 1 December and of their new allocated rosters on 15 December 2015. It could not be said that Coles had complied with its obligations to discuss significant effects with the affected employees. Merely advising an affected employee that ‘my door is always open’ was insufficient to fulfil that obligation. There was no effort to schedule meetings or correspond in detail with affected team members. He put that Coles was aware of his inability to accept the alternative roster.

[80] Mr Collins submitted that Coles had ‘failed to appropriately bargain changes to the Agreement’ as the changes in the wording in cl 5.3 were not discussed with the employees in bargaining meetings, which amounted to ‘gross contempt of process’. It no longer provided for Coles’ obligation to ‘eliminate discriminatory practices’. He put that this term was an objectionable term within the meaning of s 356 of the Act. If this was correct, Coles was obliged to ensure its compliance that s 49T of the Anti-Discrimination Act 1977, which is expressed as follows:

49T What constitutes discrimination on the ground of a person’s responsibilities as a carer

(1) A person (“the perpetrator) discriminates against another person (“the aggrieved person”) on the ground of the aggrieved person’s responsibilities as a carer if the perpetrator:

(a) on the ground of the aggrieved person having responsibilities as a carer, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have those responsibilities, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have such responsibilities comply or are able to comply, being a requirement that is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) For the purposes of subsection (1) (a), something is done on the ground of a person’s responsibilities as a carer if it is done on the ground of the person having responsibilities as a carer, a characteristic that appertains generally to persons who have responsibilities as a carer or a characteristic that is generally imputed to persons who have responsibilities as a carer.

[81] Mr Collins acknowledged the effect of the ‘semantics’ of cl 5 of the Agreement, but noted that ss 65(5) and 76(4) of the Act would not prevent the Commission, in dealing with a term of an enterprise agreement, from dealing with flexible working arrangements, if the parties agree that the Commission can deal with such a dispute.

[82] Mr Collins rejected Coles’ submission that his application was an ‘abuse of process’. New issues and evidence were not apparent in earlier proceedings and the dispute was not finally resolved. Coles had insisted that two previous applications be withdrawn on the basis of procedural issues. The dismissal of this application on the basis of issue estoppel would mean that the underlying dispute was not resolved.

[83] Mr Collins sought a full time position on the afternoon shift, a written apology and a ‘clean slate’, or alternatively, a severance package (presumably on the basis of redundancy), given Coles’ view that the work previously performed by the night shift could be subsumed into the mid shift and afternoon shift.

[84] In oral submissions, Mr Collins claimed that the selection process was completed before the consultative process.

For the respondent

[85] Mr Pollock understood the applicants’ allegations against the respondent were that it:

(a) failed to properly consider the applicants’ carer’s responsibilities when it made the decision to transfer them off night shift in October 2015 (the ‘preliminary transfer issue’);
(b) failed to comply with consultation and anti-discrimination provisions of the Agreement in respect to:

(i) the closure of the night shift; and
(ii) the selection procedure

(the ‘closure issues’);
(c) failed to properly accommodate the applicants’ requests for flexible work arrangements.

[86] Mr Pollock submitted that properly characterised, this dispute could only concern one central question: did Coles meet its consultation obligations under cl 7 in relation to the closure of the night shift? Mr Pollock firstly argued that as the ‘preliminary transfer’ issue was concluded in other proceedings, the applicants are estopped from raising it again. It amounts to an abuse of process and there is no genuine dispute about that matter.

[87] Secondly, Mr Pollock said that the Agreement’s anti-discrimination clause (cl 5) does not impose binding obligations on Coles, so no dispute can be brought about its compliance. Thirdly, cl 8 of the Agreement expressly excludes disputes relating to the refusal of a flexible work arrangement request.

[88] In any event, Mr Pollock submitted that the evidence of Mr Ioane and Mr Vrtkovski plainly demonstrated that Coles had met its consultation obligations under the Agreement. There had been an exhaustive and robust consultative process in relation to the closure issue. The approval by employees of the adoption of a particular selection process, was not required. Nor was it required to make unreasonable changes to the roster to accommodate the applicants’ carer’s responsibilities.

[89] In referring to the proceedings in relation to the ‘preliminary transfer’ issue, Mr Pollock submitted that, notwithstanding all the applications had been discontinued, the public policy considerations underpinning issue estoppel were enlivened in these circumstances; See: Lambidis v Commissioner of Police (1995) 37 NSWLR 320. Mr Pollock added that reagitating a matter previously concluded was an abuse of process; See: Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 and State Bank of New South Wales v Stenhouse Ltd (1997) Aust Tort Reports, 81-423 and there was no genuine dispute between the parties because the applicants had been rostered to night shifts and without loss of income. No dispute remained in existence. Finally, and in any event, Mr Pollock outlined the consultative processes undertaken by Coles in the ‘preliminary transfer’ proposal.

[90] Mr Pollock noted that cl 8 of the Agreement expressly excludes disputes concerning whether Coles had reasonable grounds to refuse a flexible work arrangement request. No dispute can be brought about that matter.

[91] Mr Pollock added that the anti-discrimination clause was merely aspirational and must be read in the context of the Agreement as a whole, particularly cl 8.1.2(b). In any event, the respondent did not treat the applicants less favourably in the selection process because it was based purely an individual performance, assessed according to key job requirements under the Agreement.

[92] In final oral submissions, Mr Pollock said that it was apparent from the evidence of Mr Ioaneand Mr Vrtkovski and the concessions made by Mr Roberts and Mr Collins that the respondent had met its consultative obligations under the Agreement to notify of the night shift closure and discuss the impact of the closure and measures to avert or mitigate the effect of the change on affected employees. He relied on the meaning of ‘discuss’ in a number of authorities; See: Seaman & Ors v First Mildura Irrigation Trust [1994] FCA 1233 and observed that the process began as early as 28 April 2015. Faced with all of the affected team numbers preferencing only the afternoon shift, Coles had no choice but to undertake a selection criteria. This was thoroughly explained to the employees who were invited to ask questions and to comment.

[93] Mr Pollock observed that even after the selection process, Coles continued to engage with Mr Collins and Mr Roberts. The principle here is that there is a clear distinction between the process of consultation and the outcome. Mr Collins and Mr Roberts continue to dispute the outcome, despite it being fair and objective.

[94] Finally, Mr Pollock disputed Mr Collins’ claim that the selection process preceded the consultation. He said while the dates were not precise, there was no doubt that the communication of the process and the criteria occurred prior to the application of the selection criteria to the night shift team members. Mr Noveski made clear that when he spoke to Mr Roberts he told him what would happen if he was successful or unsuccessful; not that the decision had already been made.

CONSIDERATION

[95] Mr Pollock submitted that the Commission’s powers under the Agreement’s Dispute Settlement Procedure and under the Act, are limited to whether the notification and consultation provisions of the Agreement as to the abolition of the night shift and the consequent changes, have been complied with. In my view, there is considerable force to this submission. The confinement of jurisdiction arises from the connection between the meaning of a dispute, being ‘any matter concerning the application of the terms of the Agreement.’ and the ‘Company’s duty to discuss change’ (cl 7.2) and ‘where the Company proposes to introduce a change to an employee’s roster or ordinary hours of work’ (cl 7.1.4).

[96] It is unarguable that in considering the adverse effects of a rostering change of this nature, that one of those effects could be managing working hours arrangements with the family and/or carers’ responsibilities of affected employees. Coles’ evidence makes clear that it was aware of the applicants’ family circumstances and the adverse effect of abolishing their night shift would have on these responsibilities. To the extent that one goes beyond the question of whether Coles had complied with its Agreement obligations, it seems entirely about an argument that Coles failed to give appropriate weight or recognition to the applicant’s family/carer’s responsibilities under the Agreement more broadly, or when the selection process was conducted.

[97] However, the applicants’ complaints appear to extend much further, as demonstrated by their allegations the selection process, which scored them the lowest of the 35 team members, was unfair and biased against them. It is perhaps unsurprising that employees with many years’ service (Mr Collins – 19 years), will take offence and resent a process which scored them so poorly. There is no doubt that they were unhappy with the outcome. However, unhappiness, offence or resentment is not the test. Mr Roberts suggested that the reason employees had not been selected was because they had made complaints against the management or had earlier lodged applications under the Act. Notwithstanding that there was no evidence beyond mere assertion to support this claim, Mr Roberts’ rights under the general protections provisions of the Act are the appropriate mechanism for such a claim; not a dispute brought under s 739 of the Act.

[98] It was apparent that the applicants have a misapprehension as to the powers of the Commission to make findings or orders in their favour. This case is not, and cannot be about the outcomes for the applicants following the notification and consultation process. Put another way, a dispute under the dispute settlement procedure in the Agreement is limited to whether Coles has complied with the notification and consultation provisions under the Agreement. It is not whether the applicants disagree or are unhappy with the process.

[99] It must be stressed that consultation does not mean agreement; nor does it mean an employee can hold out until they get what they want. It most certainly does not mean that the employee can have a veto power of the employer’s final decision or that the employer must create a shift for one person where one does not exist.

[100] On the other hand, consultation must mean the taking into account the concerns of the employees as to the effect of the change. In other words, genuine consultation. The employer cannot merely ‘pay lip service’ to the employees’ concerns. Simply having meetings and receiving the employees’ concerns may, or may not be genuine consultation. However, where alternative options are put, discussed, considered and modified, the process will usually demonstrate that the employer is not just ‘paying lip service’ to its consultation obligations, but is genuinely consulting.

[101] Asbury DP, in a recent decision concerning a major rostering change at two sugar mill operations in Queensland (Bundaberg Sugar Ltd v Australian Workers’ Union and others[2016] FWC 4524), said this at para [51]-[56]:

‘[51] There is an established line of authority in relation to the circumstances in which the Commission will exercise powers in a way that interferes with the right of management to decide how to efficiently conduct its business. These cases are concerned with whether certain matters were “industrial matters” or matters involving “management prerogative” and whether the Commission should arbitrate to make an award in settlement of a dispute in circumstances where the decision would impact on the rights of the employer to make decisions about matters such as how work will be allocated or arranged. Some of those authorities were cited by Commissioner Nutter in the 1996 case referred to by BSL in support of its submissions in the present case.

[52] In Re: Cram and Others; Ex Parte NSW Colliery Proprietors’ Association Limited and Others the High Court considered whether a dispute about manning and recruitment was an industrial matter that could be the subject of an award and rejected the proposition that managerial decisions stand wholly outside the area of industrial disputes and industrial matters. In holding that objections in earlier cases to the regulation and control of business by tribunals was not a matter going to jurisdiction, the Court observed that this matter is:

“...an argument why an industrial tribunal should exercise caution before it makes an award in settlement of a dispute where that award amounts to substantial interference with the autonomy of management to decide how the business enterprise shall be efficiently conducted. The evident importance of arming such tribunals with power to settle industrial disputes capable of disrupting industry is a powerful reason for refusing to read down the wide and general definition of industrial matters in the Commonwealth and State Acts by reference to any notion of managerial prerogatives as such”.

[53] There is also a general principle in cases involving issues described as managerial prerogative, that the Commission will examine all the facts and will not interfere with the right of an employer to manage, unless the employer is seeking something unreasonable or unlawful from employees.

[54] In the present case, the parties who negotiated the Agreement have given the Commission the power to approve a roster and conditions attaching to it in circumstances where they are not able to agree in relation to those matters. Those parties are a large employer and three major Unions, all with significant industrial/employee relations knowledge and expertise. The principles in the case law referred to above are well established, and form part of the context in which the parties made the Agreement. In my view, those principles are relevant to the determination of the present matter.

[55] However, it is also relevant that the power to approve the roster and associated conditions in the present case arises from an enterprise agreement. Here, the Commission is not determining a claim by employees or the Union for a term that relates to or impacts the right of an employer to manage its business. What the Commission is determining is whether to approve a roster, including the terms and conditions of employment for employees working that roster, in circumstances where both parties have agreed that the Commission has power to make such a determination. This requires me to consider the position or outcome sought by the party seeking to implement a change and to determine whether it is has a reasonable basis for doing so, and whether the change proposed unreasonably impacts employees. Relevant to that consideration are factors such as:

● the reasons for the proposed change;
● whether there are reasonable grounds for the proposed change;
● the impact on the party proposing the change if it is not achieved;
● whether reasonable efforts have been made to reach agreement in relation to a proposed change before the a request is made to the Commission to determine the matter;
● the reasons for any opposition to the proposed change;
● whether there is a reasonable basis for opposition to the proposed change;
● alternatives advanced by the parties and whether those alternatives are reasonable; and
● the impact of the proposed change on the opposing party.

[56] I have approached the consideration of these matters on the basis that it is not the role of the Commission to place itself in the shoes of the parties. Instead the Commission must objectively consider these matters. In doing so the Commission must have regard to the rights of employers to manage their businesses in a manner that promotes productivity and flexibility and the rights of employees to resist having an unfair, unreasonable, inflexible or unsafe outcome imposed on them [endnotes omitted].’

I respectfully adopt Her Honour’s conclusions.

[102] Even discounting the disputation period in September/October 2015 surrounding the ‘preliminary transfer’, it is difficult to imagine a notification and consultation process which could have been more transparent, exhaustive, comprehensive and responsive. The applicants did not seriously challenge the detailed evidence of Mr Ioane going to the numerous communications and discussions about the removal of the night shift and its impact on individual team members.

[103] This consultation began in early May 2015 and continued throughout the year and into January 2016 and beyond. It initially involved the Union, its delegates and affected team members and, more latterly, direct negotiations between Mr Collins and Mr Roberts and management. Coles offered a number of options to both hours and days worked, but in the end, none were acceptable to the applicants.

[104] To demonstrate the extent of the consultation to which I have referred, I provide an abridged chronology of relevant events as follows, which was not seriously challenged by Mr Collins or Mr Roberts:

‘(a) on 28 April 2015, Mr John Ioane (Smeaton Grange DC Manager) met with NUW delegates (including Mr Collins) and told them that the Respondent had decided to remove the Night Shift and replace it with an Afternoon Shift in January 2016;

(b) on 7 May 2015, Mr Ioane emailed Marissa Bernardi (NUW NSW State Organiser) stating (amongst other things) that the night shift would be shut down by January 2016, an afternoon shift (comprising 25 people) would be introduced, and that night shift team members would be able to apply for the afternoon shift as long as they fit Coles’ criteria;

(c) on 28 May 2015, Mr Ioane met with night shift team members to notify them of the closure of the night shift in January 2016;

(d) between 14 July 2015 and 1 December 2015, Mr Vrtkovski and Mr Noveski had a number of informal discussions with night shift team members during ‘start of shift meetings’ about the closure of the night shift and the impact that it would have on them. During these meetings, the affected team members asked a number of questions about the new shift arrangements, including questions about the start and finish times of the afternoon shift, the number of team members required for the shift, and how the company was going to select the team members for the afternoon shift;

(e) on 19 November 2015, Mr Ioane wrote to all night shift team members notifying them of the date of the final night shift on 15 January 2016, that they would be required to move to day shift, mid shift or afternoon shift after that date, and of the process by which they could select their shift preferences and preferred days;

(f) on 1 December 2015, Mr Ioane wrote to all night shift team members stating (amongst other things) that it would not be possible to move all team members to Afternoon Shift, and that selection criteria would be developed based on clause 10.3.1 of the EA, and inviting team members to contact him with any questions about the process;

(g) in or around the beginning of December 2015, Mr Ioane attended the night shift and spoke to night shift team members at the ‘start of shift’ meeting about the selection process. Amongst other things, Mr Ioane read out the selection criteria to the team members, and said to the team members that the Respondent would assess them based on their performance and conduct over the previous 12 months. Mr Ioane also said to the team members that “my door is open” if they wanted to raise concerns about the process. The team members did not ask any questions relating to the selection criteria during this meeting. Critically, neither Mr Roberts nor Mr Collins came to speak to Mr Ioane about their concerns about the selection criteria.

(h) on 14 December 2015, Mr Noveski and Mr Vrtkovski met with all night shift team members. Mr Vrtkovski told the team members that the Respondent had completed the selection process, and that their manager would speak to each team member individually;

(i) on 15 December 2015, Mr Ioane wrote separately to Mr Roberts and Mr Collins stating that they had not been selected amongst the strongest performers pursuant to the assessment process, that the Respondent was unable to offer them their first shift preference, and notifying them of their new shift arrangements commencing on 18 January 2016;

(j) on 12 January, Mr Ioane attended the night shift in order to meet with team members who had concerns to raise about the removal of the night shift. While Mr Collins came in his capacity as a support person, neither Mr Collins nor Mr Roberts spoke to Mr Ioane on their own behalf to raise any issues regarding the removal of the night shift;

(k) on 20 January 2016, Mr Ioane wrote separately to Mr Roberts and Mr Collins asking them to contact him to resolve their concerns;

(l) on 29 January 2016, Mr Ioane wrote separately to Mr Roberts and Mr Collins offering them alternative shift arrangements. These offers were rejected; and

(m) on 22 February 2016, Mr Ioane again wrote to Mr Roberts offering an alternative shift arrangement. That offer was rejected.’

[105] Putting aside the jurisdictional capacity of the Commission to grant the relief sought in placing Mr Collins and Mr Roberts on the afternoon shift, the practical corollary of doing so would be to displace other employees who, in good faith, had participated and been selected in an objective selection process. Apart from being unfair to them, by fundamentally altering the objective conclusions of the selection process, it would undermine the integrity of the entire process. This would be neither fair or appropriate in all the circumstances. Regrettably, it was inevitable that there would be ‘winners and losers’.

[106] As to the selection process itself, the applicants could point to no evidence that any of the criteria derived from the Agreement itself, had been applied unfairly such as to invalidate its outcome. It just did not produce what they wanted. In reality, it could never produce what every night shift employee wanted. Given that only one of the affected 35 employees preferenced other shifts other than the afternoon shift, this placed Coles in an impossible position of being able to meet every team member’s expectations. In passing, I find it quite inexplicable that all the night shift crew (bar one) only preferenced the afternoon shift. It seems implausible that none of them could work day or mid shift and help to minimise the impact on more seriously affected colleagues. If this was some sort of united stand in solidarity, it was most unhelpful and ultimately unsuccessful.

[107] In addition, I note and accept the evidence that in the relevant meetings with the affected team members, neither Mr Collins and Mr Roberts (and apparently no one else) raised issues or asked questions about the requirement for a selection process and the criteria to be adopted. Moreover, it is unfortunate that Mr Roberts did not even submit a preference form. As to Mr Collins’ allegation that the selection process had been completed before consultation had been exhausted, there is no evidence to support that claim. Indeed, the evidentiary timeline is very much to the contrary.

[108] Having known for many months that the night shift was to be abolished and that there were only 26 afternoon shift positions, Coles had no other reasonable alternative, except to adopt a selection procedure based on objectively determined criteria. I note that there does not appear to have been any dispute at the time, about either the imperative of a selection process or the criteria proposed under it. It was nonsense to submit that the affected employees were not notified of the closure of the night shift until 19 November 2015. If this was so, one must wonder what on earth was being discussed in the previous eight months.

[109] It must be said, of course, that this process is not dissimilar to a ‘spill and fill’ exercise, often used in redundancy situations; See: Maritime Union of Australia v Patrick Stevedores Holdings Pty Limited[2014] FWC 2651. However, unlike the conventional redundancy ‘spill and fill’ process, in this case no team member actually lost their job; just their preferred working hours.

[110] Lastly, Mr Collins and Mr Roberts allege that Coles had breached two other provisions of the Agreement; namely Clause 5 – Anti-discrimination and cl 8, to the extent that it deals with requests for flexible work arrangements. Both these claims must be rejected.

[111] Firstly, the anti-discrimination clause is in three parts. Cl 5.1 merely defines anti-discrimination in relatively conventional terms (including carer’s responsibilities, actual or perceived). Cl 5.2 states that the Company will conduct its business activities without regard to matters which are defined as discrimination and cl 5.3 merely indicates that discrimination is unacceptable and will not be tolerated.

[112] A number of things may be said about this clause. I agree with Mr Pollock that the intention of the clause is really aspirational and in one sense, it states general contemporary public perceptions. However, the clause must be viewed in the context of the Agreement as a whole, particularly when read with cl 8.1.2(b), which deals with the exclusion of disputes relating to matters concerning anti-discrimination and, more generally, when considering fairness to all employees covered by the Agreement. When viewed in this light, I do not accept that Coles contravened cl 5 of the Agreement.

[113] As to the refusal to request flexible work arrangements, cl 8.1.2 makes it unambiguously clear that no dispute can be brought under the Agreement concerning matters which arise under s 65(5) of the Act; the section dealing expressly with requests for flexible work arrangements being refused on business grounds. This exclusion is sufficient to end that debate.

[114] For the foregoing reasons, I am satisfied that Coles has complied with its obligations under the notification and consultation provisions of the Agreement. To the extent that I am required to do so, I am further satisfied that the merit selection process to determine which night shift employee should be able to transfer to afternoon shift was transparent, fair and reasonable in all the circumstances. Even if the Commission had the jurisdiction to make the orders sought by Mr Collins and Mr Roberts, I am not persuaded that their particular circumstances would warrant disturbing the outcome of the merit selection process.

[115] These matters are concluded on that basis and the applications are dismissed. Orders to that effect will accompany the publication of this Decision.

DEPUTY PRESIDENT

Appearances:

Mr A Roberts and Mr P Collins, applicants in person.

Mr A Pollock of Counsel with Ms S Summerbell, Solicitor, for the respondent.

Hearing details:

2016:

Sydney,

5, 6 May.

Printed by authority of the Commonwealth Government Printer

Alcwyn Roberts and Peter Collins v Coles Group Supply Chain Pty Ltd t/as Coles

[2016] FWC 4898

20 JULY 2016

DECISION

BACKGROUND

Relevant terms of the Agreement

THE EVIDENCE

For the applicants

Mr Collins

For the respondent

Mr John Ioane

Mr Vrtkovski

Mr Sacho Noveski

SUBMISSIONS

For the applicants

For the respondent

CONSIDERATION