Australian Municipal, Administrative, Clerical and Services Union v Each

[2019] FWC 2812

[2019] FWC 2812

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.739—Dispute resolution

Australian Municipal, Administrative, Clerical and Services Union
v
EACH
(C2019/2501)

DEPUTY PRESIDENT MASSON MELBOURNE, 30 APRIL 2019

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

Introduction

[1] On 16 April 2019, the Australian Municipal, Administrative, Clerical and Services Union (the ASU) applied to the Fair Work Commission (the Commission) to deal with a dispute pursuant to s 739 of the Fair Work Act 2009 (the Act) under the dispute resolution procedure at clause 12 of the Community Health Centre (Stand Alone Services) Social and Community Service Employees Multi Enterprise Agreement 2013-2015 (the Agreement). 1 The dispute was filed in respect of the ASU’s members employed by Eastern Access Community Heath (EACH).

[2] The dispute concerns the operation of clause 49 Public Holidays within the Agreement and whether employees are entitled under clause 49.4 to a day in lieu for the Easter Saturday public holiday which is prescribed at clause 49.1 of the Agreement.

[3] Given the proximity of the filing of the dispute to the Easter 2019 period, the ASU in filing its application sought that an urgent hearing be listed to deal with maintenance of the status quo pending resolution of the dispute. The preliminary matter of the maintenance of the “status quo” in accordance with the dispute settlement procedure was listed before me for hearing on 18 April 2019.

[4] The ASU were represented by Ms M Blair (ASU Organiser) and Ms M Wainwright (Branch Coordinator). EACH was represented by Ms C Murphy (HR Director) and Ms M Maloney (Workforce Relations Lead).

[5] After hearing from the parties, I determined to issue an Interim Order 2 requiring EACH to maintain “custom and practice” pending resolution of the dispute in accordance with clause 12 of the Agreement. The Interim Order was issued on 18 April 2019 and came into operation at 5.00 pm on that day. The Interim Order is expressed to operate until the matter is determined or otherwise withdrawn or until further order of the Commission.

[6] In determining to issue the Interim Order, I advised the parties that I would provide written reasons for making the Interim Order in the near future. This decision sets out those reasons.

Background

[7] The Agreement is a multi-employer enterprise agreement, which came into operation on 20 January 2014 and has a nominal expiry date of 30 June 2015. EACH is a party to the Agreement. 3 The ASU was a bargaining representative and is covered by the Agreement pursuant to s 183 of the Act.4

[8] Clause 49 of the Agreement deals with Public Holidays and prescribes those public holidays to be observed within the workplace. Clause 49.1 relevantly provides for the purposes of the present dispute as follows:

“49 Public Holidays

49.1 An employee shall be entitled to holidays on the following days without deduction of pay:

49.1.1 New Year’s Day, Good Friday, Easter Saturday, Easter Monday, Christmas Day and Boxing Day; and

………………..” (emphasis added)

[9] The Agreement also provides for agreement to be reached on the substitution of another day for any prescribed public holiday in clause 49.1. Clause 49.4 relevantly provides as follows:

“49.4 An employer and his/her employees may agree to substitute another day for any prescribed in this clause. For this purpose, the consent of the majority of affected employees shall constitute agreement. Agreement pursuant to this provision shall be recorded in writing and be available to every affected employee.”

[10] The Agreement Dispute Settlement procedure is found at Clause 12 of the Agreement and relevantly states as follows:

“12 Dispute Settlement

12.1 It is the objective of this procedure to ensure that grievances are resolved by negotiation and discussion between the parties.

12.2 The parties to this agreement recognise that from time to time individual employees may have grievances, which need to be resolved in the interests of good relationships.

12.3 An employee will have the right for grievances to be heard through all levels of line management.

……………

12.7 Where matters remain unresolved following application of the steps referred to in sub-clauses 12.4 to 12.6 above, then as provided by the Fair Work Act 2009, they shall be referred to Fair Work Commission for assistance in reaching settlement through conciliation in the first instance or arbitration.

12.8 Work shall continue normally in accordance with custom or practice existing before the grievance arose, while discussions take place.

12.9 No party will be prejudiced as to the final settlement by the continuance of work.

…………………”

[11] On 4 April 2019, the ASU wrote to the CEO of EACH, Mr Peter Ruzyla, raising a concern that EACH had advised employees of a decision to depart in 2019 from the long standing “custom and practice” of allowing employees to take a day in lieu for the Easter Saturday public holiday. 5 The ASU referred in its correspondence to the historical custom and practice; the in-principle agreement reached in respect of the drafting of a revised clause for a new single employer agreement with EACH; that the 2018 arrangements consistent with the “custom and practice” remained on the “Grid” (EACH’s intranet site); and requested that EACH review its decision and reinstate the entitlement for 2019. The ASU requested a response from EACH by Thursday, 11 April 2019.

[12] On 16 April 2019 Mr Ruzyla responded to the ASU and relevantly stated as follows:

“Dear Merri,

Thank you for your time yesterday to hear EACH’s views in relation to the Easter Saturday Public Holiday dispute for our staff covered under the SACS Agreement 2015 (Community Health Centre (Stand Alone Services) Social and Community Services Multi Enterprise Agreement 2013-2015).

This has been a difficult decision for EACH as we value our staff and look forward to a long and conducive relationship that is beneficial to all. We maintain our view that the entitlement to Easter Saturday is:

- Based on custom and practice;

- Has been provided previously based on misleading (external) advice, and is

- Not a financially responsible decision in our current position.

We have taken time to consider the views put forward yesterday, however we have decided to not provide this in 2019. As we reiterated, this is based on financial circumstances.

…………

Given the concern raised that some staff may have booked leave with the assumption of a day of TIL would be available, if there are any staff who have leave pre-booked and they have no other leave entitlements available as paid leave for this day, we are happy to make arrangements on request to take a day of annual leave in advance.” 6

[13] An extract from the “Grid” revealed the arrangements that were applied in 2018 and relevantly stated as follows:

“Dear EACH employees

EACH will be applying the Easter Saturday and Sunday provisions (where applicable) in the form of Time In Lieu, and can be taken as stipulated below.

In the event that you are unable to take TIL within the four weeks period following the public holiday, you will need to liaise with your Manager on a mutually agreeable day.

…………

The Saturday before Easter Sunday;

The following awards/agreements state that an employee who ordinarily works consistently every Monday through to Friday (applies to part time and full time) only, and who does not work on Easter Saturday, shall be entitled to an equivalent of one day’s pay in respect of Easter Saturday and can be taken with mutual consent of your manager as one day off in lieu.

………..

Community Health Centre Social and Community Service Employees Multi Enterprise Agreement 2013-2015 – SACS.

………………..”. 7

[14] On 16 April 2019, Ms Blair of the ASU wrote to Mr Ruzyla confirming its earlier advice of its intention to lodge a dispute in the Commission. In doing so Ms Blair drew the attention of Mr Ruzyla to the Dispute settlement term as follows:

“………………

The current MEC 2015 which covers EACH Clause 12.8 Dispute Settlement states;

“Work shall continue normally in accordance with custom and practice before the grievance arose”.

Therefore, the ASU believe the statement from the Grid regarding Easter Saturday entitlement 2018 remains the status quo.

Please advise that no instruction will be distributed to ASU SACS members until determination by the Commission.” 8

[15] Following advice from the ASU to Mr Ruzyla on 16 April 2019 of its intention to file a dispute with the Commission that day, Mr Ruzyla then wrote to Ms Blair on 16 April 2019 in the following terms:

“Dear Merri,

EACH has advised staff of our decision to not provide Easter Saturday and until a decision from the Fair Work Commission is provided, we will stand by our decision.

As advised previously, we have arranged and supported staff to take leave during Easter period and will allow staff to take leave in advance to ensure that no one is disadvantaged.

The expectation to provide TIL to staff and have it re-claimed from staff if the FWC finds in favour of EACH would place an onerous hardship on staff who do not ordinarily accrue TIL.

We await a decision of the Fair Work Commission before we take any further action on this matter.

……..”. 9

ASU Case

[16] The ASU submit that employees covered by the Agreement are entitled to payment of a day’s pay for Easter Saturday or a day in lieu to be taken at a mutually convenient time. They contend that EACH has unilaterally sought to depart in 2019 from the custom and practice that has applied in respect to the Easter Saturday time in lieu arrangements. They submit that the arrangements have been observed for several years as evidenced by the 2018 arrangements reflected on the “Grid”.

[17] The ASU further submit that the parties (ASU and EACH) are currently preparing a new single employer enterprise agreement for ballot which has a specific clause in it that would remove any doubt as to the entitlement to Easter Saturday payment or time in lieu arrangements. The wording is as follows according to the ASU:

“Clause 51.9 Easter Saturday – full time employees only

In respect of Easter Saturday, a full time Employee who ordinarily works every day

Monday to Friday and who does not work on Easter Saturday, shall be entitled to one day’s pay in respect of Easter Saturday or where there is mutual consent, within four weeks following the date on which such public holiday occurred the Employee may take one day off in lieu or have one day added to their annual leave.”

[18] The ASU referred to efforts made by it to meet with EACH on 15 April 2019 in an effort to try and resolve the dispute. They also referred to various correspondence exchanged between the parties in which EACH referred to and apparently accepted there was an historical “custom and practice” but declined to follow such “custom and practice” in 2019.

[19] The ASU submit that EACH should be directed to observe the conceded “custom and practice” in respect to Easter Saturday time in lieu arrangements pending resolution by the Commission of the disputed construction of clause 49 of the Agreement.

[20] The ASU further submit that EACH’s proposal that employees take annual leave rather than time in lieu pending resolution of the Easter Saturday dispute was no answer in circumstances where an employee had no annual leave accrual available. Nor was it reasonable that employees should be forced to take annual leave in advance and expose themselves to a consequently reduced annual leave accrual moving forward.

EACH Case

[21] EACH submit that the construction of clause 49 of the Agreement has been subject to recent internal review, following which EACH concluded that there is no express entitlement to time in lieu for Easter Saturday. As result of this decision, EACH communicated to staff that time in lieu arrangements for Easter Saturday would not be observed in 2019.

[22] EACH did not contest the ASU’s submission that the parties had agreed in principle to a revised set of words to be included in a new agreement that would resolve any doubt over the meaning of the current clause 49.4. Nor did EACH contest that there was a historical “custom and practice” with respect to Easter Saturday time in lieu arrangements. They attributed such historical arrangements to incorrect advice EACH had received from industrial relations advisors over several years.

[23] EACH stated that to reverse the Easter Saturday 2019 decision made and subsequently communicated to staff would be impractical prior to Easter from a payroll and administrative perspective. This was because the preliminary hearing was being conducted on Good Friday eve and that most staff, including payroll and administrative staff, will have departed work for the Easter long weekend by the time any decision or order were issued in relation to the preliminary issue.

[24] EACH further submit that no prejudice would be suffered by any employees that took annual leave to cover the time off that had been planned, where such time off might otherwise have been covered by time in lieu for Easter Saturday. They argued that if the disputed construction of clause 49 was ultimately determined in favour of the ASU, then EACH would simply re-credit a day’s annual leave to any employee that took a day’s annual leave instead of a day in lieu for Easter Saturday.

Consideration

[25] In determining whether to issue an interim order sought by the ASU requiring that “custom and practice” be observed in respect of Easter Saturday time in lieu arrangements pending resolution of the dispute, I intend to approach this on the basis of determining firstly whether a dispute has been raised in accordance with and capable of resolution under clause 12 of the Agreement. Secondly, I will consider whether a “custom and practice” exists with respect to the disputed matter; and finally whether it is appropriate in the circumstances to issue an interim order.

[26] Section 739 of the Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms. The Agreement contains such a term, which is clause 12 Dispute Settlement.

[27] The dispute settlement procedure in the Agreement does not prescribe the matters that may be subject to the procedure, such as matters arising under the Agreement or the NES. The procedure expresses the scope of the clause in general terms, that of applying to “grievances”. Those words would appear to have a broad import and could arguably extend to any grievance an employee may have arising out of his or her employment.

[28] There is no doubt in my view that the dispute over the construction of clause 49, and specifically the entitlement to a day in lieu for Easter Saturday, is a dispute in relation to a term of the Agreement. Furthermore, the ASU have pressed the dispute over the clause on behalf of its members affected. On the material before me, it could not be said that this is not in relation to a grievance that members of the ASU who are employed by EACH have raised.

[29] Having regard to the information in the Form F10 application and the views of the parties in the preliminary hearing, I am satisfied that the Commission has jurisdiction to deal with the dispute, including by arbitration.

[30] The parties have agreed as part of the Dispute Settlement procedure that while a dispute is being resolved in accordance with that procedure, work shall “continue normally in accordance with custom and practice.” Neither party is to be prejudiced as to the final settlement of the dispute by continuance of normal work.

[31] The nature of the dispute is over the meaning of clause 49.4 and whether it entitles employees to a day in lieu for Easter Saturday, which is prescribed as a public holiday under under clause 49.1, in circumstances where employees normally work Monday to Friday. As the hearing was conducted in relation to the preliminary issue of compliance with clause 12.8 of the Dispute Settlement procedure, no evidence was adduced or substantive submissions advanced in relation to the meaning of clause 49.4.

[32] In the absence of evidence or submissions as to the meaning of clause 49.4 at this preliminary stage, it is sufficient to conclude, as I have, that there is a dispute over the clause which then requires compliance with clause 12.4 regarding work continuing “normally in accordance with custom and practice.” I turn now to consider whether there is a “custom and practice.”

[33] While EACH submit that their approach over several years to time in lieu for Easter Saturday was informed by incorrect industrial relations advice, they did not contest the existence of a “custom and practice” as reflected most recently in the arrangements put in place for Easter 2018. Furthermore, CEO Mr Ruzyla in his email of 16 April 2019 to Ms Blair describes the previous arrangements in the very terms of “custom and practice.”

[34] In the above circumstances I am satisfied that the “custom and practice” has been that EACH has allowed those employees who are required to normally work Monday – Friday to take a day’s pay or arrange by agreement with their Manager for a day in lieu for Easter Saturday. My view as to the “custom and practice” is reinforced by the parties reportedly reaching an agreement in principle to wording to be inserted into a replacement agreement that reflects such an entitlement.

[35] I make the point at this stage that maintenance of “custom and practice” is not subject to a cost or administrative practicality caveat. There is an explicit requirement that work continue normally. I consequently have had no regard to submissions by EACH that observance of the “custom and practice” in respect of Easter Saturday time in lieu arrangements, which bears an administrative and financial cost, should weigh against requiring it to follow that “custom and practice”.

[36] It follows from the above that I am satisfied that there is a dispute between the parties regarding the construction of clause 49.4 that falls within the scope of Clause 12 Dispute Settlement. I am further satisfied that there is a “custom and practice” in relation to time in lieu arrangements for Easter Saturday. Work “continuing normally” would require observance of that “custom and practice” pending resolution of the dispute over the construction of clause 49.4 of the Agreement.

[37] I turn now to consider whether I should issue an Interim Order requiring compliance with the “custom and practice” that I have found to exist. In considering whether to issue such an order, having found the necessary pre-requisites as summarised in paragraph [36] above, I turn to consider the prejudice to the parties of such an order being granted.

[38] EACH submit that no prejudice would be suffered by employees were they to take annual leave rather than a day in lieu for Easter Saturday. In this circumstance, if EACH is unsuccessful in its contended construction of clause 49.4 before the Commission, then all that will be required of it is to re-credit a day’s annual leave for those employees that avail themselves of the use of annual leave.

[39] The ASU counter that employees will be prejudiced in circumstances where they have no annual leave available and that, in any event, it is not appropriate for employees to be required to take annual leave in circumstances where the employer has taken a unilateral decision to depart from “custom and practice”, contrary to the Dispute Settlement procedure.

[40] Any prejudice employees may suffer as a consequence of EACH’s decision is substantially addressed by the annual leave arrangement offered, including annual leave in advance being extended. Depending on the outcome of the substantive dispute being resolved, EACH could affect an administrative “fix” by re-crediting a day’s annual leave where annual leave had been taken instead of a day in lieu for Easter Saturday. There is some force to EACH’s argument.

[41] There is however a broader prejudice to be considered and that is in respect of compliance with the terms of the Agreement. There is clear requirement that parties must comply with the terms of the Dispute Settlement procedure. That obligation cuts both ways, both in respect of EACH and its employees. To allow one party to ignore the explicit requirement that work shall “continue normally in accordance with custom and practice” creates a broader prejudice to the other party to the dispute and which the Commission should not countenance.

[42] I am consequently satisfied that issuing of an Interim Order is appropriate in the circumstances.

Conclusion

[43] I am satisfied that there is a dispute between the ASU and EACH over the construction of clause 49.4 of the Agreement that falls within the scope of Clause 12 Dispute Resolution to resolve. I am further satisfied that there is a “custom and practice” in relation to the disputed term and such “custom and practice” must be observed pending resolution of the dispute, consistent with requirements of clause 12.4 of the Agreement.

[44] Having considered the respective prejudice to the parties, I have determined that the issuing of an Interim Order on 18 April 2019 was appropriate in all of the circumstances.

[45] For the sake of completeness, I would emphasise that should the dispute over Easter Saturday time in lieu arrangements be determined in favour of EACH’s construction, then EACH will be able to reverse the administrative arrangements that I have ordered be put in place in accordance with “custom and practice”. This is necessarily consistent with clause 12.9 of the Agreement that neither party will be prejudiced as to the outcome of the dispute by the continuance of work.

DEPUTY PRESIDENT

Appearances:

M Blair on behalf of the Australian Municipal, Administrative, Clerical and Services Union.

C Murphy for the Respondent.

Hearing details:

2019.

Melbourne.

April 18.

Printed by authority of the Commonwealth Government Printer

<PR707350>

 1   AE406357.

 2   PR707247.

 3   Ibid, Schedule A.

 4   [2014] FWCA 317 at paragraph [5].

 5   ASU Form F10, Attachment - Email from Ms M Blair to Mr Ruzyla, dated 4 April 2019.

 6   Ibid, Attachment – Email from Mr P Ruzyla to Ms M Blair, dated 16 April 2019 at 10.33 am.

 7   Ibid, Attachment – “GRID” extract of “Calendar – Public Holiday – Easter Sunday”, dated 1 April 2018.

 8   Ibid, Attachment – Email from Ms Blair to Mr Ruzyla, dated 16 April 2018 at 11.09 am.

 9   Ibid, Attachment – Email from Mr P Ruzyla to Ms M Blair, dated 16 April 2019 at 7.06 pm.