Australian Municipal, Administrative, Clerical and Services Union v Brimbank City Council

[2020] FWC 3160

[2020] FWC 3160

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Australian Municipal, Administrative, Clerical and Services Union
v
Brimbank City Council
(C2019/6588)

DEPUTY PRESIDENT CLANCY MELBOURNE, 16 JUNE 2020

Alleged dispute about a matter arising under an enterprise agreement – request for flexible work arrangement made by a group of employees – interpretation of enterprise agreement – dispute determined.

[1] In a period during which working from home has been encouraged in the strongest of terms by Government leaders and officials due to COVID-19, it may seem strange that before the Commission is a dispute arising from the decision of an employer to refuse a request for a flexible work arrangement relating to working from home.

[2] To provide some context however, the dispute arises out of a decision made on 31 July 2019 and the application in respect of it under s.739 of the Fair Work Act 2009 (the Act) was filed in the Commission on 28 October 2019. It is not inaccurate to observe that things have significantly changed in many respects since then.

[3] The dispute has been filed by the Australian Municipal, Administrative, Clerical and Services Union (the ASU). The application is made pursuant to Clause 55 of the Brimbank City Council Enterprise Agreement 8, EA8 2018 (the Agreement). It arises from the outcome of a review by the Brimbank City Council (the Council) into a working from home (WFH) arrangement that has existed in its City Planning Department for many years. The outcome of the review was that there was a decision made by the Council to terminate this existing WFH arrangement.

[4] The dispute was the subject of a conference before Commissioner Gregory on 19 November 2019, however the matter could not be resolved and the parties continued their discussions. On 10 December 2019, the ASU advised the Commission that discussions between the parties had broken down and that it sought to have the dispute determined by arbitration.

[5] Having regard to Commissioner Gregory’s impending statutory retirement from the Commission on 23 December 2019, the matter was allocated to me. I issued directions for the filing of material ahead of an arbitration. The ASU filed its material on 24 January 2020, including an Outline of Submissions and the witness statements from the following individuals:

•  Mr James Bruscella, Coordinator City Planning;

•  Mr Dhiraj Joti, Senior Town Planner;

•  Mr Nikolas Karageorge, Development Planner;

•  Mr Simon Vittorio, Strategic Coordinator Planning Compliance; and

•  Ms Susan Fitton, Senior Development Planner.

[6] The Council filed its material on 28 February 2020, including an Outline of Submissions and the witness statements of the following individuals:

•  Ms Yvette Fuller, Manager, People and Performance; and

•  Mr Kelvin Walsh, Director, City Development.

[7] On 6 March 2020, at the request of the ASU, I issued an Order pursuant to s.590(2)(a) of the Act for the attendance of Ms Kristen Gilbert, Manager - City Planning Department, at the hearing to give evidence.

[8] The hearing before me took place on 13 March 2020. Ms Philippa Balk appeared for the ASU. The Council sought permission to be represented by a lawyer pursuant to s.596 of the Act. I considered the submissions on this issue during a telephone conference on 12 March 2020 and, having weighed the circumstances and considerations in s.596 of the Act, granted permission for the Council to be represented by Mr Michael Nicolazzo of Maddocks Lawyers.

[9] Ms Fitton and Mr Vittorio did not attend the hearing due to being on prescheduled annual leave. The following witnesses gave evidence and were cross-examined at the hearing:

•  Mr Bruscella;

•  Mr Joti;

•  Mr Karageorge;

•  Ms Gilbert;

•  Ms Fuller; and

•  Mr Walsh.

[10] At the completion of the hearing, I made directions for the filing of final written submissions, the last of which were filed on 22 April 2020.

Questions to be determined

[11] On 20 December 2019, the ASU advised the Commission that it had conferred with the Council and confirmed that the questions to be determined were:

“Was the Planning Unit’s request for a flexible work arrangement made in accordance with clause 20 of the Brimbank City Council Enterprise Agreement 8, EA8 2018 (“EA8”) and, if so, was the Council’s refusal of the Planning Unit’s application for a work unit flexible work arrangement on reasonable grounds within the meaning of clause 20 of the EA8?”

[12] It should be noted that the ASU uses the term “Planning Unit” and references to this term throughout this decision should be read in this context. The individuals who were party to the request for a flexible working arrangement are all employees of the Council’s City Planning Department.

Relevant Principles

[13] The Full Bench of the Commission in AMWU v Berri Pty Limited (Berri) 1 concluded as follows in relation to the interpretation of a single enterprise agreement:

“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision’s place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”

[14] Further, the Full Bench of the Commission in United Firefighters Union of Australia v Emergency Services Telecommunications Authority T/A ESTA, 2 stated:

“[35] As stipulated in Berri, the starting point for interpreting an enterprise agreement is to have regard to the ordinary meaning of the words used. Further, the text must be interpreted in the context of the agreement as a whole. Principles 7 and 10 elicited in Berri emphasise that ambiguity in a provision within an enterprise agreement must be identified before one is to have regard to evidence of the surrounding circumstances. However, principle 8 makes it clear that, in determining whether ambiguity exists, one may have regard to evidence of the surrounding circumstances. That is, such evidence can be used to identify and resolve any ambiguity.”

Was the request for a flexible work arrangement made in accordance with Clause 20 of the Agreement?

[15] By way of background, a WFH arrangement was first implemented in or around July 2010, by the then manager of the Council’s City Planning Department. It allowed some individuals within the City Planning Department to work from home one day per week.

[16] Following a review of the WFH arrangement, Mr Walsh took a recommendation to a meeting with the Council’s Executive on or around 27 March 2019 that the WFH arrangement be rescinded. The Executive agreed and on or around 17 April 2019, Mr Walsh says he arranged a meeting with the individuals who had been working under the WFH arrangement, during which he explained that the pre-existing WFH arrangement would be rescinded. It was conveyed to the individuals that if they wished to formalise their WFH arrangement, they could make individual requests to the Council under Clause 8 or Clause 20 of the Agreement.

[17] Following that meeting Mr Walsh sent an email to the individuals on 18 April 2019 to confirm the WFH arrangement would cease on 7 June 2019 and that if they wished to formalise a WFH arrangement, they would need to apply by submitting a Flexible Work Arrangement Request Form by 3 May 2019.

[18] The ASU sent a response to Mr Walsh’s email of 18 April, seeking a meeting with the Council to discuss the proposed change to the WFH arrangement, prior to the cessation coming into effect.

[19] The requested meeting took place on 14 May 2019. Present were Mr Walsh, Ms Gilbert, Ms Fuller, Mr Joti, Mr Vittorio, Ms Holt and Mr Karageorge, along with Ms Lorraine Di Pietrantonio of the ASU. Ms Di Pietrantonio advised that the individuals who previously had a WFH arrangement in place wanted to make a collective work unit request under Clause 20 of the Agreement and that they were looking at making the request for planners in the Department who were classified at level 6 or above to work one day per week from home.

[20] Following this meeting, Mr Walsh sent an email to Ms Di Pietrantonio on 16 May 2019 and detailing the questions that would need to be addressed for a work unit request to be considered by the Council, including:

•  Who is applying for the request?

•  What is the reason for the request?

•  What are the benefits to the Council in agreeing to the request and how can this be measured?

[21] This information was requested by 27 May 2019 and Mr Walsh agreed to extend the end date for the previous WFH arrangement until 26 July 2019.

[22] On 27 May 2019, the Planning Unit made a group request for a flexible work arrangement, which the ASU asserts was made by a work unit in accordance with Clause 20 of the Agreement (Work Unit Application). The ASU contends the Work Unit Application was in terms identical to the previous WFH arrangement that had been in place since 2010. The Work Unit Application was emailed by Mr Dhiraj Joti on behalf of the Planning Unit to Ms Gilbert, while she was filling in for Mr Walsh, and Ms Fuller.

[23] The Work Unit Application contained the following information:

•  A list of positions that the request would apply to and the current employees currently occupying these positions. This included:

•  Susan Fitton – Acting Coordinator City Planning

•  James Bruscella – Coordinator City Planning

•  Simon Vittorio – Strategic Coordinator Planning Compliance

•  Dhiraj Joti – Principal Planner

•  Adam Johnson – Principal Planner

•  Sukh Kaur – Senior Planner

•  Nikolas Karageorge – Acting Senior Planner

•  Ania Kudlicki – Senior Planner

•  Rachael Hayes – Senior Planner

•  Luisa Holt – E-planning Implementation Officer

•  Cathy Cardwell – Senior Subdivision Officer

•  Sarah Scala – Development Planner

•  Development Planner B

•  The nature of the request, which was for staff to work from home one day per week on a rostered basis;

•  The reason for the request, which was to formalise the existing arrangements that had been in place for the last nine years;

•  The work that would be undertaken while working from home including reading and writing reports, writing VCAT submissions, researching applications, responding to phone calls and emails, reading and reviewing briefs of evidence for upcoming Magistrate Court prosecutions, reviewing draft orders sought at VCAT prepared by the Planning Compliance Officers, preparing Council reports and specific duties applicable to the E-Planning Implementation Officer;

•  The work that would not be undertaken while working from home including external meetings in person; and

•  The benefits, quantifiable measures, potential costs and potential disadvantages to the Council.  3

[24] On 14 June 2019, Ms Gilbert provided the following response by email:

“…We understand you seek this arrangement because you are of the view that, primarily, it increases productivity and morale, however as is outlined in clause 20, the basis of accepting a flexibility request is about providing the means for an employee to achieve a greater work-life balance.

Part of the decision making in regard to a flexibility arrangement is that the arrangement would be accepted where there is a greater benefit to the employee than the adverse effects a working from home arrangement may cause to Council.

Your application does not address the benefits to individuals of working from home.

Clause 20.1 states “… Any flexible work arrangement sought must be based on the individual needs of the employee…”

To enable this application to be addressed in full, please provide the benefits that this arrangement provides to the work-life balance of individuals and the team, supported by evidence.

Currently Council is of the view the provision of a workplace and equipment for staff to complete their work is more beneficial than having staff work from home. This allows staff to have a distinction between work and home, allowing for a work-life balance where people ‘switch off’ once they leave the workplace. To be clear, Council does not expect or condone staff working while they are undertaking their carer responsibilities, such as looking after children while they are ill. Staff have access to carers leave and part-time work options to address primary care responsibilities. Further we have not been provided with any substantive evidence that productivity is increased by having half the department rostered work from home one day per week. In fact we see that working from home reduces staff availability for customers and other staff.

Additionally we are also of the view that the personal circumstances of staff change, as do the circumstances of Council. Flexibility arrangements can assist staff to achieve work life balance, however the circumstances of looking after young children, teenagers, elder care or for other work life balance reasons are all very different. As it stands, a situation where a person works from home one day a week will not address all these needs and it is considered they cannot address this need indefinitely, therefore timeframes for this arrangement will need to be provided (ie. if a work from home arrangement is ultimately agreed to, it will be on a limited term basis with review provisions included).” 4

[25] On 20 June 2019, Ms Di Pietrantonio responded to Ms Gilbert’s email with an Updated Work Unit Application on behalf of the Planning Unit. As to the benefits that the WFH arrangement would provide to the work-life balance of the affected individuals and the team, the following was submitted:

“•  More environmentally friendly as no commuting by private motor-vehicle/public transport is required.

•  Time saving for those that have long commutes which enables more efficiency of time out of work hours for family/social interaction or personal time.

•  Greater flexibility to ones work life balance and lifestyle choices.

•  Reduced stress levels and improved mental health.

•  Ability for staff work at the time they are most productive during day within the spread of hours.

•  Less distractions and ability to focus both in the office and out.” 5

[26] The Updated Work Unit Application further noted the request by the Council to address the benefit afforded as a result of the arrangement, and directed attention to Clause 20.4 of the Agreement, asserting that the onus is on the Council to demonstrate why the arrangement was not tenable. Notwithstanding this submission, the following benefits to the Council were provided: 6

•  Many tasks require continuity in concentration and attention on a single project over a number of hours, which working from home could foster due to the fewer number of interruptions than that found at working in the Council offices. Interruptions result in shifting tasks as well as cognitive and attentional resources, which in turn costs time in adapting and resetting when shifting back to the task at hand;

•  This fact has been established in a number of studies showing that full focus does not return for an extended period upon return to a task, and this was a time cost to the Council while working from home remedies this issue and in fact, improves productivity;

•  Working from home is free from the typical noise and activity of an open plan office and provides for improved cognitive concentration;

•  Ten of the most senior staff collectively applying to formalise the WFH arrangement have on average over 16 years in the planning industry, working under different systems of at least 25 councils and other organisations. All staff have a proven track record of working autonomously as well as driving process improvements including full digitalisation of planning applications. This experience, knowledge and specialisation in the field puts the staff in a position to communicate many of the most efficient ways of working;

•  Over the nine years the arrangement has been in place, there have been no internal or external complaints and all staff have benefited; and

•  Other benefits of working from home, including measures of productivity, have been established by a number of academic studies. A number of studies were then cited.

[27] The Updated Work Unit Application then referred to an email authored by Mr Stuart Menzies, the former manager who implemented the WFH arrangement, dated 7 July 2010 stating:

“Apart from freeing up some much needed desk space, the greater benefits may be:

- Solid work time away from the distractions of the office to get things done;

- time savings, especially for those who commute some distance;

- Flexibility in hours of work for that day at home – get up at dawn and be done by early afternoon all without getting out of your pj’s;

- A bit more individual, family and dog friendly work arrangements.

A work from home arrangement would come with some ground rules:

- You self-manage and do the required hours/work;

- You have a safe workspace appropriate for doing work;

- You plan ahead and take with you the necessary files, info resources to work effectively at home;

- You’re available by phone in case of a ‘planning emergency’;

- You’re willing to use your own computer, or we can probably organise use of a Council laptop.” 7

[28] Mr Walsh responded to the Updated Work Unit Application in a letter on 31 July 2019 as follows:

“…You did not provide any information that persuaded us that a rostered arrangement would be more beneficial to the work life balance of individuals than it is to the adverse effects to Council.

In consideration of your request and additional information, we do acknowledge that there are some circumstances where working from home is a greater benefit to an individual than Council. For this reason we have agreed to working from home arrangements for some staff within the Planning Unit and will put in place agreements with those staff.

Additionally, Planning staff along with all other staff can put in individual requests, which can be considered and approved by the relevant manager. We expect that they will be documented between the individual and Council.

In regard to the request to provide for ongoing ‘rostered’ working from home arrangements however, I am of the view that this does not meet the requirements of the clause or provide a greater benefit to individuals than an adverse effect to Council. It is almost impossible to agree that a request for all band 6 staff to work from home is a greater benefit to the individual that the adverse effect on Council. We consider that each individual circumstance is different and there is no evidence to suggest that it is a greater benefit to the work-life balance of all staff. For this reason I cannot approved a rostered working from home day for the City Planning department.” 8

Objection as to Jurisdiction - Application not made by an identifiable “work unit”

[29] The Council submits the Work Unit Application was not made by an identifiable “work unit” within the context of Clause 20 of the Agreement and that the interpretation of the term “work unit” within Clause 20 begins with an assessment as to whether the clause has a plain meaning or it is ambiguous or susceptible of more than one meaning.

[30] The Council submits that the term “work unit” is not ambiguous or susceptible of more than one meaning. It asserts that “work unit” refers to employees within an identifiable team or unit. For example, it says that a work unit within the City Planning Department would be either the subdivision application assessment and approval team, the planning application assessment and approval team, or the planning compliance team. The Council contends that as both the Work Unit Application and the Updated Work Unit Application were not made by, or for, one of these work units but instead was made on behalf of a group of individual employees spanning across the three work units or teams reflecting a cross-section of roles within the City Planning Department, the Applications were not made by a “work unit”.

[31] It submits that each team has distinct reporting lines requiring the team to report to its respective coordinator, who then reports to the City Planning Department manager, namely Ms Gilbert. While the Council concedes that the subdivision application assessment and approval team and the planning application assessment and approval team have greater similarities in their work than differences as compared to the planning compliance team, it submits they are nonetheless distinct teams.

[32] The Council relies on the staffing roster used within the City Planning Department for the previous WFH roster arrangements which it says distinguished between the compliance team, the subdivision application assessment and approval team, and the planning application assessment and approval team, as well as the Counter and Phone Roster, which does not include any employees from the planning compliance team.

[33] Alternatively, the Council relies on the surrounding circumstances in respect of the insertion of Clause 20 and the term “work unit” within the Agreement during bargaining in 2010. It submits that it was commonly understood that the term “work unit” meant a complete unit within the Council and cannot be a selection of positions, exclusive of certain bandings or levels, within and across a department, and that a work unit is to be defined by the services it provides. By way of example, the Council says the People and Performance Department has within it different teams such as Occupational Health and Safety, Learning and Development, Payroll, OHS, IR and ER, which are all separate and distinct teams with distinct operational requirements. The Council’s position is that the purported work unit in this case does not reflect any consistent, relevant and distinct operational requirements to satisfy this definition.

[34] The Council further asserts that the context of the term “work unit” can be drawn from its place within the Agreement where Clause 20 follows Clause 20 and comes within “Section 3 – Hours of Work, Overtime and Related Matters”. Clause 19 uses the term “department in 19.3 and 19.4, where Table A in the Agreement sets out City Planning as one of those departments. It says that Clause 19 was a term of the Brimbank City Council Collective Agreement 5, 2007 (the 2007 Agreement) which was the predecessor to the Agreement that inserted Clause 20 (the 2010 Agreement) and that when drafting Clause 20, it was open to the parties to adopt the same language of Clause 19. However, as the drafters did not use the term “department” in Clause 20 and instead adopted “work unit”, the Council submits that this demonstrated that the term “work unit” means something different to “department”.

[35] However, if the term “work unit” was taken to mean the same as “department”, the Council accepts that a department can make an application for alternative flexible work arrangements under Clause 20 but that any such application must include the entire department and not a subset of individuals within that department. On this basis, the Council refutes the ASU’s submission that the Updated Work Unit Application was made by the City Planning Department or the Planning Unit on the basis that it was only a select group of employees, classified as primarily Band 6 and above, who were the subject of the Applications. As employees classified as Band 5 and below were excluded from the Applications, the Council submits that it cannot be accepted that the entire City Planning Department had made the work unit request. Accordingly, it asserts that the exclusion of these employees cannot satisfy the requirements of Clause 20.

[36] As to the ASU’s submission that the WFH arrangement was acceptable to the Council due to its conduct over the years and therefore was a compliant arrangement within the scope of Clause 20 of the Agreement, the Council denies this and submits that while the WFH arrangement began on a fortnightly basis, over time it became weekly and thus, there was no standard or consistent arrangement in place since 2010. It submits that the WFH arrangement was not one that was agreed to in accordance with the terms of the Agreement and that it stood outside the terms of the Agreement, such that the threshold elements required by Clause 20 were never previously addressed.

ASU Response to objection that Application not made by an identifiable “work unit”

[37] The ASU refutes the Council’s submission in relation to the definition of “work unit” on the basis that as the Agreement uses distinct and inconsistent language to refer to groups of employees, it is impossible to demonstrate that the drafters of the Agreement intentionally did not use the same language in Clause 20 as was used in Clause 19 to imply a difference between the definitions of “work unit” and “department”.

[38] The ASU contends that the only reference to the term “work unit” in the Agreement is found in Clause 20 and that other similar terms are referenced, but not defined. As such, the ASU asserts that when considering the Agreement as a whole, the disparate terminology used to refer to different staff groupings suggest that little consideration was given to the exact definition of each term.

[39] As to the placement of Clause 20 immediately after Clause 19, the ASU submits this supports its view that a department as set out in Clause 19 is an appropriate grouping of employees through which to coordinate a work unit flexible work arrangement, and submits that the Planning Unit is therefore a “work unit” for the purposes of Clause 20.

[40] The ASU submits that no evidence tendered during the proceedings suggests that when Clause 20 was first introduced during the negotiations for the 2010 Agreement, any party specifically turned their mind to the definition of a work unit. It asserts that the fact the Planning Unit already had a WFH roster arrangement in place at the time indicates that the intent of Clause 20 was to facilitate such arrangements through the 2010 Agreement.

[41] Further, subsequent conduct is relevant as it indicates a common understanding between the parties that the Planning Unit is a work unit for the purposes of Clause 20. In this regard the ASU relies upon:

•  The existence of the WFH roster since 2010;

•  Support for the WFH roster from the Manager of City Planning and previous managers;

•  The implementation of the WFH Protocol post-approval of the 2010 Agreement, which saw the introduction of Clause 20, and its continuing implementation to the present day;

•  The development of new online systems within the Unit to support employees’ ability to work from home; and

•  The question of a “work unit” not being raised until Mr Walsh’s commencement with the Council, eight years after the WFH roster first commenced.

[42] The ASU also submits:

•  The physical geographical location of the Planning Unit, supports a common-sense approach that it is a work unit within the meaning of Clause 20;

•  Of relevance is that the titles of roles and groups of employees within the Council have little consistency;

•  Departments within the Council operate and are structured differently from each other with various layers of management, staffing arrangements and operational requirements between employees, such that it is impossible to conceive a narrow definition of a “work unit”;

•  There are clear inconsistencies with how the words “business unit”, “work group”, “unit”, “department”, “team”, “division” and “group” are used throughout the organisational structure and sometimes they are used interchangeably, thereby illustrating that little thought had gone into the definitions of each term;

•  The City Planning Department/Planning Unit functions as one team and there are no three separate and distinct work units as asserted by the Council;

•  The Department assesses and determines planning permit applications as well as deals with the enforcement of planning permit applications and the nature of work requires staff to work across the department rather than in siloed teams;

•  Ms Gilbert, as Manager of the relevant employees, has never considered the Planning Unit is not a “work unit”;

•  While the planning compliance area does not assess planning applications, it enforces planning schemes and planning permits and is considered part of the team;

•  There is a team meeting every week involving all areas; and

•  It is not reasonable to require that all members of a work unit must be party to a work unit flexible arrangement, particularly given the practical effect of the clause is to facilitate a genuine and substantive right to seek alternative flexible work arrangements.

[43] The ASU maintains that the Planning Unit is a team and a “work unit” for the purposes of Clause 20.

Consideration

[44] The principles outlined above from Berri make clear that the interpretation process begins with a consideration of the ordinary meaning of the relevant words and the Full Bench emphasised that the resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. That context may appear from the text of the agreement as a whole, the disputed provision’s place and arrangement in the agreement, and the legislative framework under which the agreement was made.

[45] Clause 55 of the Agreement provides the process for resolution of disputes and grievances about matters arising under the Agreement or the National Employment Standards (NES).

[46] Clause 20 of the Agreement provides:

“20 ALTERNATIVE FLEXIBLE WORK ARRANGEMENTS

20.1 Any flexible work arrangement that is agreed between a manager and an employee or a work unit is a stand alone agreement and shall not be considered as a precedent or as an acceptable business case for any other flexible work arrangement that another employee or work unit seeks with their manager. Any flexible work arrangement sought must be based on the individual needs of the employee and the operational requirements with the work unit of the employee seeking the flexible work arrangement.

20.2 An employee or work unit may request to work an alternative flexible work arrangement in place of their current hours of work arrangement, to support their work life balance.

20.3 Such a request may include, but is not limited to, changes to start or finishing times (eg. starting later or finishing earlier each day).

20.4 Flexible work arrangement requests will be considered and subject to approval by the employee’s/work unit’s manager. All requests for a flexible work arrangement may only be refused on reasonable grounds related to the effect on the workplace. Such grounds might include cost, lack of adequate replacement staff, loss of efficiency and the impact on customer service.

20.5 As well as the ability to request an individual flexible work arrangement in accordance with this clause, Council also offer a number of other flexible work arrangements which are outlined in Section 5, Part A of this Agreement.”

(my emphasis)

[47] Clause 20 of the Agreement appears within Section 3, Part A of the Agreement, which is entitled “Hours of Work, Overtime and Related Matters”. The clauses within Section 3 are as follows:

•  Clause 15 – Hours of Work, which outlines ordinary hours of work, delineating between all staff (except library employees), library employees and maternal and child health nurses;

•  Clause 16 – Breaks (meal breaks and tea breaks), which is of universal application but for some arrangements specific to Customer Service employees;

•  Clause 17 – Spread of Hours, which is expressed to be of universal application except for 15 specific “work areas” (amongst which, nine Departments are named) or as otherwise set out in Appendices to the Agreement;

•  Clause 18 – Overtime & Time Off in Lieu, which is of universal application, only delineating between full time and part time employees;

•  Clause 19 – Rostered Days Off Work Arrangements, which sets out different arrangements for 19 day month employees, 9 day fortnight employees, new employees and existing employees in accordance with the “department” in which they work; and

•  Clause 20 – Alternative Flexible Work Arrangements, which can be agreed between a manager and an employee or “work unit”.

[48] Section 5, Part A of the Agreement is entitled “Flexible Work Arrangements”. The clauses within Section 5 are as follows:

•  Clause 37 – Work and Family Responsibilities;

•  Clause 38 – Purchased Leave;

•  Clause 39 – 4/5 Model of Employment; and

•  Clause 40 – Phased Retirement.

[49] The “Flexible Work Arrangements” in Section 5 are available to individuals upon application. Amongst them:

•  Clause 38 provides that an application to work a purchased leave arrangement will be considered by an employee’s manager and is to take into account the circumstances of the employee and the operational requirements of the “business unit”;

•  Clause 39 provides that an application for a 4/5 model of employment is required to be approved by an employee’s manager and Director, subject to the operational needs and requirements of the “department”; and

•  Clause 40 provides that an employee desirous of working part-time prior to retiring may make request to her or his manager and the request is required to take into account both the employee’s circumstances and the operational requirements of the “business unit”.

[50] Clause 8 of the Agreement allows the Council and an employee to make an Individual Flexibility Arrangement relating to one or more of the following matters:

•  arrangements about when work is performed;

•  overtime rates;

•  penalty rates;

•  allowances; and

•  leave loading.

[51] An individual flexibility arrangement under Clause 8 must meet the genuine needs of the employer and the employee and be genuinely agreed.

[52] Clause 9 of the Agreement provides that the objective of the Agreement “is to provide salary and conditions of employment that contribute to our [the Council’s] employees’ well-being and work/life balance while contributing to Council’s ability to deliver services effectively and to improve it’s [sic] business performance.”

[53] Further, Clause 9 outlines that this will be done by, amongst other things, “promoting work/life balance practices that enhance our employee’s quality of life”.

[54] Clause 43 deals with Managing Workloads and acknowledges the importance of an equitable allocation of work “within a team” while Clause 46 of the Agreement relates to the Introduction of Major Change, and specifically provides that a “significant effect” includes the alteration of hours of work “for work groups”.

[55] Part A of the Agreement also contains twelve appendices which outline specific terms and conditions pertaining to certain areas of the Council’s operations. Of these:

•  Six appear to relate to a department described in Clause 19 of the Agreement (A1, A4, A6, A7, A8 and A10);

•  One appears to relate to a specific group of employees described as Community Care workers (A2);

•  One relates to Maternal and Child Health Nurses, a work area described in Clause 17.2 of the Agreement (A12);

•  One appears to relate to a work unit within the Parks Services department, Golf Course Maintenance (A11); and

•  The final three relate to the Arts and Culture Unit (A3), Libraries (A5) and Mechanical Services (A9).

[56] As to these various clauses and appendices, I firstly observe that Clause 20 appears within a section of the Agreement that deals with when work is to be performed and while some of the arrangements are of universal application, others vary according to where within the Council’s organisation an employee works.

[57] I note the proposition advanced by Vice President Lawler in Australian Municipal, Administrative, Clerical and Services Union v Brimbank City Council 9 that the “manifest intent” of Clause 20 is to provide alternative flexible work arrangements to those specified elsewhere in the Agreement.10 When read within the context of Section 3 of Part A dealing with “Hours of Work, Overtime and Related Matters” and alongside the clauses in Section 5 of Part A and Clause 8, I am however of the view that the alternative flexible work arrangements in Clause 20 are intended to deal with those which relate to hours of work arrangements only and do not extend to work from home arrangements.

[58] Analysing the words of Clause 20 itself, I have noted:

(i) It is Clause 20.2 that first introduces the nature of the request that can be made, providing that an employee or work unit may request to work an alternative flexible work arrangement in place of their current hours of work arrangement, to support their work life balance;

(ii) The immediately following Clause 20.3 provides that such a request for an alternative flexible work arrangement in place of the current hours of work arrangement may include, but is not limited to, changes to start or finishing times; and

(iii) Clause 20.5 outlines that as well as providing employees with the ability to request an individual flexible work arrangement in accordance with Clause 20.2, the Council also offers a number of other flexible work arrangements, which are outlined in Section 5, Part A of the Agreement. (my emphasis)

[59] Section 5, Part A of the Agreement provides that the Council and its employees may make the other flexible work arrangements as specified in Clauses 38, 39 and 40 and Clause 8 allows for individual flexible arrangements but again, none of these appear to extend to work from home arrangements.

[60] As such, I am not persuaded that the request for a flexible work arrangement made in this case was even capable of being made pursuant to Clause 20 of the Agreement. This results in a conclusion that the request made for a flexible work arrangement was not made in accordance with Clause 20 of the Agreement. I note in this regard that the decision of Vice President Lawler upon which the ASU relies did not involve a request for a WFH arrangement but was instead concerned with a request by three employees to work a 9-day fortnight.

[61] The manifest intent of Clause 20 is to provide alternative flexible work arrangements to those specified elsewhere in the Agreement. That is brought home particularly by the language of Clause 20.2: “An employee or work unit may request to work an alternative flexible work arrangement in place of their current hours of work arrangement, to support their work life balance”.

[62] However, even if the Work Unit Application was capable of being made pursuant to Clause 20 of the Agreement, I would still not be persuaded that it was made in accordance with Clause 20.

[63] The Agreement provides that the flexibility available to employees is available in different contexts:

•  An employee’s spread of ordinary hours of work will be determined by her or his “work area”, which may or may not be a department (Clause 17);

•  Rostered days off are determined on a department by department basis (Clause 19);

•  Hours of work arrangements (including starting and finishing times) are determined on a work unit basis (Clause 20);

•  Purchased leave arrangements are determined on a business unit basis (Clause 38);

•  4/5 employment is determined on a departmental basis (Clause 39); and

•  Phased retirement arrangements are determined on a business unit basis (Clause 40).

[64] I am satisfied that a “work unit” means something different to a “work area” or “department” and I reject the ASU’s submission that the disparate terminology used to refer to different staff groupings suggests that little consideration was given to the exact definition of each term. Each of the various forms of flexibility available under the agreement will result in different implications for the Council and the management level at which these implications will be evaluated before requests are granted suggests these have been taken into account.

[65] I reject the ASU’s submission that the placement of Clause 20 immediately after Clause 19 supports its view that a department as set out in Clause 19 is an appropriate grouping of employees through which to coordinate a work unit flexible work arrangement and that the Planning Unit is therefore a “work unit” for the purposes of Clause 20. To do so would ignore the fact that Clause 17 uses “work area”, a grouping that comprises whole departments, multiple departments and other combinations of employees.

[66] I am not persuaded the Council’s City Planning Department can, of itself, be a work unit. Nor am I persuaded that this particular group of employees can be regarded as being a work unit. Apart from the fact that the group includes three co-ordinators leading teams of different functionaries within the department, there are then only representatives from two of these three teams within the purported “work unit” plus a single E-planning Implementation Officer. I am not persuaded that a “work unit”, for the purposes of Clause 20, can be a selection of positions, exclusive of certain bandings or levels, within and across a department of the Council.

[67] For these reasons, I conclude that the request made for a flexible work arrangement was not made in accordance with Clause 20 of the Agreement.

[68] I do however observe that notwithstanding this dispute, the Council has outlined that nine out of twelve employees who were party to the Work Unit Application also pursued individual requests for individual flexible work arrangements. Of those, Ms Fuller’s evidence was that six have been granted. 11 Further, it seems entirely reasonable to assume that extensive WFH arrangements have had to be adopted by the Council as part of its response to COVID-19. It may be that as a result of these, the Council’s views about the merits of WFH arrangements in the City Planning Department have changed.

[69] In concluding, I am in no way critical of the ASU and the relevant employees for engaging with Clause 20 and seeking to make the Work Unit Application. Indeed, they were invited to do so by Mr Walsh when he suggested they make individual requests to the Council under Clause 20 (or Clause 8) of the Agreement. Both parties then engaged with the terms of Clause 20 in the correspondence that followed, even if the Council ultimately submits that the original WFH arrangement was not one that was agreed to in accordance with the terms of the Agreement and in fact, stood outside the terms of the Agreement.

[70] As outlined above, I consider the WFH arrangements have always fallen outside the purview of Clause 20 of the Agreement and I consider both parties to this dispute laboured under the misapprehension that a WFH arrangement could and should be regulated by Clause 20.

Conclusion

[71] It is clear that this is an application about which the employees concerned have felt very strongly. It is also clear that the witnesses for the Council have held their views sincerely. However, as Berri makes clear, the task of interpreting an agreement does not involve rewriting its terms to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by the parties and I have not been persuaded that the request made was either capable of being made pursuant to Clause 20 of the Agreement or made in accordance with it.

[72] The answers to the questions that the parties asked me to determine in order to resolve the dispute are as follows:

Question 1: “Was the Planning Unit’s request for a flexible work arrangement made in accordance with clause 20 of the Brimbank City Council Enterprise Agreement 8, EA8 2018 (“EA8”)”

Answer: No

Question 2: “was the Council’s refusal of the Planning Unit’s application for a work unit flexible work arrangement on reasonable grounds within the meaning of clause 20 of the EA8?”

Answer: Not necessary to answer

DEPUTY PRESIDENT

Appearances:

Ms P Balk for the ASU.
Mr M Nicolazzo, solicitor, for Brimbank City Council.

Hearing details:

2020.
Melbourne:
March 13.

Final written submissions:

The Australian Municipal, Administrative, Clerical and Services Union, 22 April 2020.
Brimbank City Council, 15 April 2020.

Printed by authority of the Commonwealth Government Printer

<PR720251>

 1   [2017] FWCFB 3005.

 2   [2017] FWCFB 4537.

 3   Exhibit A2, Annexure DJ-3.

 4   Ibid at Annexure DJ-4.

 5   Ibid at Annexure DJ-5.

 6   Ibid.

 7   Ibid.

 8   Ibid at Annexure DJ-6.

 9   [2013] FWC 5.

 10 Ibid at [19].

 11   Exhibit R2 at [49] and [55]-[57].