Australian Municipal, Administrative, Clerical and Services Union v Fairfax Regional Media Newcastle Newspapers (Herald)

[2014] FWC 5631

FAIR WORK COMMISSION

OPINION

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

Australian Municipal, Administrative, Clerical and Services Union
v
Fairfax Regional Media - Newcastle Newspapers (Herald)
(C2013/1581)

Clerical industry
DEPUTY PRESIDENT SAMS	SYDNEY, 18 AUGUST 2014

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

[1] This opinion arises from a dispute notification lodged by the Australian Municipal, Administrative, Clerical and Services Union (‘ASU’) pursuant to s 739 of the Fair Work Act 2009 (the ‘Act’). The Fair Work Commission (the ‘Commission’) convened a conference of the parties on 15 August 2014. During the course of the conference, I proposed issuing an opinion on the subject matter of the dispute (s 739(4).

[2] Shortly stated, the Union brings this application on behalf of five of its members, who are former employees of the Fairfax Regional Media - Newcastle Newspapers (Herald). These employees, along with a number of others, were made redundant in October 2013. All five of the former employees have considerable periods of service with the Newcastle Herald. However, these periods of service have included a significant proportion of time where they were engaged and paid as casual employees. The Union maintains that in calculating the amount of redundancy pay to be paid to the employees, both the periods of earlier casual employment and later periods of permanent employment should be taken into account.

[3] The following factual circumstances are relevant;

1. The affected employees were permanent employees at the time of their redundancy and had been so engaged for many years (up to 18 years in one case). The employees have between 2-15 years of continuous casual employment.

2. The employees were covered by the Newcastle Newspapers Clerical Enterprise Agreement 2012 [AE895221] (the ‘Agreement’).

3. The Agreement provides for redundancy pay calculated on the basis of four weeks base rate of pay for each year of continuous service (cl 42.4.1).

4. The opening words of cl 42 state:

‘This clause provides redundancy provisions for permanent employees in circumstances... [emphasis added]’

Unsurprisingly, the employer has resisted the Union’s claim and continued to do so at the conference.

[4] While I can well understand why the employees feel aggrieved that their long periods of unbroken casual service, are not included for the purposes of calculating redundancy, the fact is that throughout this time they had received a 20% casual loading on their base rates of pay. Casual loadings are intended to compensate a casual employee for the benefits and entitlements otherwise available to permanent part time and full time employees; such as annual leave, sick leave and redundancy payments. This has been a long-held and well known principle under workplace law. The fact that long service leave was payable to the employees according to State legislative provisions and that certain shift allowances, penalty rates and overtime may be paid, does not alter the strict legal position.

[5] In any event, in my opinion, the Union faces an insurmountable hurdle to its claim succeeding by the express and unequivocal wording of cl 42 of the Agreement. The clause governing redundancy only applies to permanent employees. There is simply no other construction which can be placed on the wording of the clause.

[6] In my opinion, the Union’s claim cannot succeed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Municipal, Administrative, Clerical and Services Union was involved in a dispute with Fairfax Regional Media Newcastle Newspapers (Herald) that was brought before the Fair Work Commission. The Union alleged that the employer had engaged in unfair labour practices by unilaterally implementing changes to the workplace without following the proper procedures outlined in their enterprise agreement and the National Employment Standards (NES). The dispute centred on whether the employer's actions constituted a breach of the agreed terms and whether these changes should be subject to negotiation and agreement between the parties involved.

The legal issues that the Fair Work Commission had to address included determining whether the employer's actions were consistent with the procedural requirements of the enterprise agreement and the NES. Additionally, the Commission had to assess whether the changes implemented by the employer were substantive enough to warrant renegotiation and whether the employer had acted in good faith and provided reasonable notice of the proposed changes. The Union argued that the employer had failed to follow the agreed processes and had acted unilaterally, which was a breach of the enterprise agreement.

In its decision, the Fair Work Commission found that the employer had indeed breached the enterprise agreement by implementing changes unilaterally without following the required procedures. The Commission emphasised that the employer had an obligation to engage in good faith negotiations and provide reasonable notice of any proposed changes. Furthermore, the Commission determined that the changes in question were significant enough to necessitate renegotiation. The Fair Work Commission ruled in favour of the Union, finding that the employer's actions were in breach of the enterprise agreement and ordered the employer to cease the implementation of the changes until proper negotiations had taken place.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established