Australian Municipal, Administrative, Clerical and Services Union v Greater Bendigo City Council
[2020] FWC 3288
•23 JUNE 2020
| [2020] FWC 3288 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Australian Municipal, Administrative, Clerical and Services Union
v
Greater Bendigo City Council
(C2020/657)
DEPUTY PRESIDENT CLANCY | MELBOURNE, 23 JUNE 2020 |
Alleged dispute about a matter arising under an enterprise agreement.
[1] On 6 February 2020, the Australian Municipal, Administrative, Clerical and Services Union (the ASU) filed an application under s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute. The ASU brought the application pursuant to clause 18 of the Greater Bendigo City Council Enterprise Agreement 2017 (the Agreement).
[2] The dispute was the subject of a conference before me on 14 February 2020, however, the matter could not be resolved and the parties agreed to have the dispute determined by arbitration.
[3] Directions were issued for the filing of material ahead of the hearing. The ASU filed its material on 20 March 2020 comprising its Outline of Submissions and witness statements of:
• Mr Allan Seddon;
• Ms Jacinta Pollock;
• Ms Lynette Davis; and
• Ms Beverley Hartland.
[4] Greater Bendigo City Council (the Council) filed its material on 7 April 2020 comprising its Outline of Submissions and the witness statements of Ms Sue Harrison and Ms Andrea West. Further reply material was filed by the ASU on 15 April 2020 and a supplementary witness statement of Ms Harrison was filed on behalf of the Council on 16 April 2020.
[5] At the hearing before me on Friday, 17 April 2020, Ms Deeana Predic 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 and, having weighed the circumstances and considerations in s.596 of the Act, granted permission for Mr Gary Katz of Meerkin & Apel to represent the Council.
Questions to be determined
[6] On 28 February 2020, the ASU advised the Commission that it had conferred with the Council and confirmed that the questions to be determined were:
“1. Would the changes proposed by Greater Bendigo City Council (Council) to staff members employed in its Social Support Group (“relevant employees”), result in a redundancy of their positions as contemplated by clause 16.1 of the Greater Bendigo City Council Enterprise Agreement 2017 (“Enterprise Agreement”)?
2. If “Yes” to Question 1, then:
(a) Does/do clause/s 14 and/or 16 of the Enterprise Agreement require the relevant employees to accept a reasonable offer of redeployment made by the Council?
(b) If “Yes” to (a), then has the Council made such reasonable offer of redeployment?
(c) If “Yes” to (b), are relevant employees entitled to reject the offer and receive the benefits set out in clause 16.3 of the Enterprise Agreement?”
[7] As per the reasoning I outline below commencing at [202], I have not been persuaded that the changes proposed by the Council to staff members employed in the Social Support Group (SSG) result in a redundancy of their positions as contemplated by clause 16.1 of the Agreement.
Evidence of the ASU
Mr Allan Seddon
[8] Mr Allan Seddon commenced working in the SSG on 7 August 2002. He says that at the time, it was called the Planned Activity Group. He worked in a casual position up to five days a week, before accepting a permanent part-time position on 21 December 2002, after which he worked four days a week. In his written Witness Statement, Mr Seddon says he is employed as an Activities Worker but concedes that over the years, names have changed and he could be properly categorised as a Social Support Group Worker. 1
History with SSG
[9] Mr Seddon says when he began, the groups operated from the middle of Bendigo in an old funeral home, while the dementia group ran twice a week “around the corner”. He recalls the SSG running seven days a week, run by over ten staff members, with two groups running on Monday, Tuesday, Thursday, Friday and Saturday, three groups running on Wednesday, and one group running on Sunday. Mr Seddon says that most groups were catered to over-65 year olds and that there were other groups for those with dementia and acquired brain injuries.
[10] The activities conducted with the groups varied, says Mr Seddon, and included taking the clients out for lunch every two weeks for most groups, while the men’s group went out for lunch every week.
[11] Mr Seddon remembers a 20-seater bus being used to collect clients for the groups and that staff were required to hold a light rigid and a taxi directorate licence in order to drive the bus. He says that there were always two staff members or one staff member and one experienced volunteer aboard the bus to collect the clients.
[12] In 2007, Mr Seddon says the SSG transitioned from the 20-seater bus to 10-seater buses, but maintained two staff members on board the bus during client collection. In the same year, he says the SSG moved operations to the Bendigo RSL for six months before moving to the Spring Valley Soccer club for another six months. He recalls that the SSG moved to the current venue at Kangaroo Flat in 2008, where they have a purpose-built building including a new activities room, new offices and a bathroom.
[13] Mr Seddon says that the SSG has employed no new full time or permanent part-time staff since 2008.
Changes in the SSG
[14] Mr Seddon says in 2015, the Council announced that it would discontinue community services at a meeting at the town hall. He recalls that the justification for this decision was that other organisations were better equipped than the Council to provide the services.
[15] Mr Seddon declares that after significant activism from the employees, the ASU and the community, the Council retracted its announcement at another town hall meeting in September 2015, and further stated that it would fund the service until 2018. He says that in 2018, the Council stated it would fund the service until 2019 and in 2019, it would fund the service until 2020. He recalls that at this time, there were only approximately 60 staff in the entire community services sector compared to over 200 staff when he first began.
[16] From 2015, Mr Seddon says that Ms Harrison, Home Support Coordinator, began to direct staff in the SSG to reduce the number of services and activities. In cross-examination, Mr Seddon maintained this position when it was put to him that this was not the case and that the SSG were supported in increasing the types of activities conducted at the centre through the purchase of more games and equipment. 2 He says that the SSG were directed to reduce the cost of the number of outings, and added that “…certainly more games might have been purchased to play indoors, but the people in their later years wanted to go out into the community and wanted to remain connected with their community”,3 such that he still stood by his original assertion.4
[17] He recalls Ms Brenda Wilkin commencing as Team Leader in 2016, the same year he observed the number of SSG clients declining. He further says that prior to Ms Wilkin’s leadership, referrals were received from the HART team, which the SSG would follow up, and that Ms Wilkin took over this role.
[18] Also in 2016, Mr Seddon says the home cooking program, involving the SSG employees cooking meals for clients at the kitchen in Kangaroo Flat, was discontinued. In cross-examination, Mr Seddon conceded that cooking was never part of his role or the program, but that he enjoyed doing this. 5
[19] In early-2019, Mr Seddon says the SSG employees were advised that they no longer required support workers or volunteers to accompany them on trips due to no longer having high needs clients. He says that this advice came despite the SSG still having high needs clients. Mr Seddon further elaborated this practice at the hearing, and said that up until recently, another staff member or volunteer would accompany drivers to both pick clients and to take clients home. He said that staff were rostered on for an hour and a half a time every morning and every afternoon, but that this practice was ceased early in 2019 as it was the Council’s position that there were no more high needs clients, despite his assertion that there were. 6 He recalls emailing Ms Harrison in July 2019 regarding a client who continually took off her seatbelt during trips and that a volunteer was required to sit next to the client on the bus to ensure her seatbelt remained fastened. Mr Seddon says that during this time, volunteers left and were not replaced, and despite this other staff were not rostered on to assist. Mr Seddon disputes Ms Harrison’s evidence that the Council has an ongoing advertisement for volunteers and that they are not easy to obtain or are not interested in aged care on the basis that Bendigo has a population of “110-odd thousand people. I can’t believe that there is not three or four that would be interested in having a day of helping out elderly senior citizens and having a free lunch. I just don’t believe that.”7
[20] Also in 2019, Mr Seddon recalls there being a large decline in client numbers and that this was attributable, by Ms Harrison in a meeting on 25 July 2019, to clients accepting packages from My Aged Care and therefore being ineligible for Council services. He further recounts Ms Harrison saying that the SSG service was overstaffed and alluded to transitioning to in-home Social Support Individual (SSI) services, which were currently being performed by Band 2 staff (whereas SSG employees are categorised as Band 3).
[21] On 5 June 2019, Mr Seddon says that the SSG staff received an email from Ms Wilkin directing them to contact the office if there were below seven clients in a group session, as this was the threshold to determine whether a group is overstaffed. He says that since the direction has been in place, whenever the group is “overstaffed” or “undercliented”, 8 the SSG staff have been required to perform “demeaning” and “menial” administrative tasks. Mr Seddon says that this occurrence began to take place daily, and as a result he started taking leave. During cross-examination, Mr Seddon confirmed that he worked no more than four times in the office and that on each of those four occasions, he worked only part days as he returned to the Kangaroo Flat building to assist with meals and cleaning up.9 When it was put to him that this would not have been stressful for him, Mr Seddon said:
“Well, when you look at it in that context it could seem that it wouldn't be very stressful. My concern with that particular type of work was that we were leaving an unsupported staff member with up to seven frail, aged people in a centre on their own to travel seven and a half kilometres to another centre to do menial work that could have been carried out in our own workplace. So to me it was ridiculous that we had frail, aged people being looked after by one staff member that could never go for a toilet break and yet it seemed imperative for management to get us in there to do these menial tasks of stapling and stamping. It made no sense to me at all.” 10
[22] Mr Seddon added that the administrative tasks were required to be undertaken at the Council’s office, approximately 7.5 kilometres from the Kangaroo Flat building, which he says could have been performed onsite. 11 As to the types of tasks, Mr Seddon said they included making up packs for home support and assessment, and stamping and stapling maternal child health nurse booklets, which he says had nothing to do with his role.12 He disputes Ms Harrison’s evidence that he was required to make client phone calls, answer phone calls, suspend clients or plan for the SSG.13
Consultation
[23] In September 2019, Mr Seddon says that Ms West, Manager of Community Wellbeing, commenced. He recalls that also in September, Ms Hartland and Ms Davis were asked to sign a Band 2 contract.
[24] Mr Seddon says that on 3 October 2019, Ms Wilkin asked him to sign a Band 2, 16-hour minimum contract, with the hours spread over five days. He says he refused to sign this contract and further, that this was the same contract that the other Council community services workers signed in 2016. Upon advising that he was in fact a Band 3 employee, Mr Seddon says that he was told to “just write Band 3 at top”. At the hearing, Mr Seddon agreed that what was presented to him may have been a position description, not a contract. 14
[25] At the hearing, Mr Seddon further says that he had always been a Band 3 worker from when he signed the contract back in the early 2000s and that this had never changed. He says he was unsure as to why there was any confusion by the Council in believing he was a Band 2 worker. 15
[26] In November 2019, Mr Seddon says that the SSG staff had a meeting with Ms West at Kangaroo Flat, where she informed the staff that the Council had a new idea to reinvigorate programs involving home support and sought the views of the team. To follow this up, an email was received by the SSG staff on 11 December, requesting feedback to the proposed changes to their movement to SSI services. Mr Seddon responded with the following email dated 23 December 2019 at 4:46PM:
“Dear Andie,
I am sending this e-mail to inform you of a few facts and to offer some of my personal thoughts regarding the proposed changes.
When I commenced working for the former Planned Activity Group (PAG) in late 2001 I began as a casual. Several months later I applied for the position of Activities Officer Band 3. The position averaged out at 4 x 8-hour days per week over a six week period (ie 32 hours per week). Since weekend groups were abolished I have always worked 4 x 8-hour days per week. About seven or eight years ago management approached me about reducing my hours to a 7-hour 36 minute day. They said, “No Community Care Worker (now HSW) works an 8 hour day.” My response was, “I’m an Activities Officer. My contract states that I work an 8 hour day, four days per week and I do not agree to any change.” Payroll will verify that to this day, this is still the case. in my nineteen years of working in this program I have never agreed to any changes whatsoever to my original PD or contract. Your proposal does not recognise my contracted working hours.
Your proposed changes to the program I believe are unfair to staff. It seems to me that you are equating the job of providing one on one social support with that of an activities worker. These jobs are vastly different in nature and require different skills. Surely one on one support is Band 2 work? Furthermore, there seems to be quite a grey area regarding the “administrative duties as requested”. With the very limited range of activities permitted these days there is only minimal planning necessary. How many hours are you expecting this to take?
Since the 2015 decision to continue on with Aged Services in a “business as usual” manner, management has seemed to be on a stealthy mission to dismantle this one magnificent program of community engagement and inclusiveness. Along with an enormous raft of other changes too numerous to list, two buses have been sole and lifts recently removed from the other two. These actions alone indicate a desire to limit the program rather than grow it.
I wholeheartedly disagree that the proposed changes to my workplace, duties and hours of work are not significant. I would also like an explanation of how a former City of Greater Bendigo employee, working in our workplace, was offered a redundancy when her work conditions were proposed to change, yet this is not the case for me? I have this persons permission to discuss her situation and I feel I am being discriminated against.
I am happy to discuss these matters further with you either tomorrow or on Jan 3 if you wish.
Yours sincerely,”
[27] Mr Seddon says a further meeting with Ms West was held on 9 January 2020, together with Ms Esther Patterson from HR, where they sought the SSG employees’ opinion on what could be done to reinvigorate the SSG program. He recounts that Ms West and Ms Patterson reiterated the proposed changes were not significant. He also remembers being told that the new program would require them to use their own cars and phones with EziTracker, and that they would no longer have set days of work.
[28] The following day on 10 January 2020, Mr Seddon says a meeting was held with Mr Steven Abbott, the acting director, and Mr Craig Neiman, the CEO. Both Ms Hartland and Ms Davis were in attendance, along with an ASU organiser by the name of Danny. Mr Seddon remembers Danny submitting that their positions were redundant and that Mr Neiman said in response, “I’ll do the right thing by you”. He further says that in response to Mr Neiman querying how the Council could keep him employed, Mr Seddon replied “You can’t, I’ve just about had enough”.
[29] Mr Seddon says he attended a further meeting on 14 January 2020 with Mr Abbott, where he confirmed that none of the SSG staff agreed to the proposal and reiterated their belief that this was a significant change.
SSG vs SSI
[30] At the hearing, Mr Seddon provided examples of activities conducted in the SSG including singalongs, trivia quizzes, group discussions, movement to music, ball and beanbag throwing games and boardgames. He says that these group activities had an emphasis on fun and were conducted in the scene of friendship. 16 Mr Seddon contends that these activities would not work in an individual setting.17
[31] As to home safety checks, required by the SSI position description, Mr Seddon says that he has no experience in conducting them and that they were not part of his role. 18
[32] Mr Seddon says that the table of activities in Ms Harrison’s Supplementary Witness Statement 19 was not provided in the draft position description for the proposed role.20
[33] During cross-examination, it was put to Mr Seddon that high needs clients required proper assessment by the SSG employees. Mr Seddon denied this and said that it was not his role to assess high needs clients, 21 and that while he occasionally was required to meet with new clients to develop their care plan at the SSG centre,22 this was mostly done by the team leader.23 Mr Seddon says that the requirement to assess client needs and plan their activities in an individual setting is a “different job altogether”24 and “completely different”25 to his current position, which requires him to “organise the provision of appropriate activities to stimulate members based on the individual capacity which resulted in improved wellbeing.”26
Ms Jacinta Pollock
[34] Ms Jacinta Pollock commenced working for the Council in 2006 as a fulltime Home Support Officer (Band 5 position), prior to securing a fulltime position as an Activities Worker in the SSG in 2008 as a Band 3. She says she was the last fulltime staff employed in the SSG.
[35] Ms Pollock says that she has two young children whom she drives to school in the morning, and that it takes her 45 minutes to arrive at Kangaroo Flat from her home.
History with SSG
[36] In recounting the initial operations of the SSG, Ms Pollock says that when she commenced as an Activities Worker, the SSG owned a large bus and a smaller minivan, which were used to pick up clients from their homes and taken to the SSG centre. She further recalls that each day, a core group would visit shopping centres, zoos and galleries, whilst another group would stay at the SSG centre. She says that each group had approximately 24 clients, so that the SSG had almost 50 clients a day. Ms Pollock says that the SSG ran seven days a week for a broad range of clients, including a specific dementia group on Mondays and Tuesdays, a women’s group and a men’s group on Wednesdays, a craft group on Thursdays and an intellectual disability group called the “Special Accom Leisure Group” on Fridays. She says that the only criteria for groups was that clients could not be a nursing home resident. Ms Pollock says that there was always a waiting list for the groups and that there was never any issues with filling the groups, with referrals coming from hospitals and by word of mouth.
[37] As to her personal circumstances, Ms Pollock says that she took maternity leave in 2008 and returned in 2009, before taking maternity leave again in 2010 and returning as a permanent part-time staff member in 2012, working three days a week (Saturdays, Sundays and one weekday) from 9:00AM to 5:00PM. In April 2018, she says she reduced her hours to two days a week due to family needs, during which time she worked 9:00AM to 4:00PM on Tuesdays and Thursdays. She says that she wanted to continue this arrangement until the end of 2018, and that when she approached Ms Wilkin to increase her hours to a third day, she was advised that she could only do this if she did not need to take any more time off for her family. As a result, Ms Pollock says that she continued working two days a week.
[38] Around 2013 or 2014, Ms Pollock says that the Sunday groups were closed down without notice. She therefore changed her days to Saturday, Tuesday and Thursday.
[39] In February 2015, Ms Pollock recalls that the Council announced it would close its community services branch. This was retracted several months later, with the SSG directed to continue but with “major changes” that were unknown to the staff members. These changes included no longer being allowed to cook meals in the kitchen, and an external organisation was engaged to provide meals. She says that as a result of this, ten volunteers were lost as they could no longer serve cups of tea or prepare morning tea. Ms Pollock also recalls that external trips slowly reduced from one day a fortnight to once every six weeks, to twice a year and now to once a year. She says that these changes were implemented without consultation.
[40] Also in 2015, Ms Pollock recalls that Saturday groups were closed. As a result, she says that client numbers slowly declined and less and less people were joining the groups. She says that she has since discovered that the reason for the declining client base is attributable to potential clients taking packages from My Aged Care, rendering them ineligible for admission into the Council’s SSG program. Ms Pollock confirmed her acceptance of these reasons at the hearing, 27 but did not recall Ms Harrison advising the SSG that the Council had received special funding for the SSI program.28
[41] In September 2019, Ms Pollock recalls attending a meeting with Ms Harrison, who announced that since groups had reduced significantly and there being less work for the SSG, there was an opportunity for work in the office. Ms Pollock says she volunteered to work in the office and that following the meeting, she received a telephone call directing her to attend the office the next week. Thereafter, Ms Pollock worked for six months on Tuesdays and Wednesdays in the Council office.
[42] Ms Pollock also remarks that on days when the SSG is overstaffed, a staff member selected by management is directed to attend the main office to put office pamphlet packs together. She says that currently, the SSG are overstaffed on Tuesdays and Wednesdays. As to this requirement, Ms Pollock said at cross-examination that Ms Wilkin had previously suggested there should always be two SSG employees running a group regardless of client numbers but that now, if overstaffed, the SSG employee remaining at the centre is expected to do meal preparation, run the group and do pick up/drop off on their own. 29
[43] Following this, Ms Pollock says she signed a contract to fill another position while the relevant employee was on long service leave. This contract stated that she was to continue working in the office until November, during which time she worked up to four days a week.
[44] Ms Pollock says she was then asked to step up to Band 4 and do rostering, which she performed from 5 December 2019 to 25 January 2020. When this contract ended, she says the position was filled by someone else but that on her final day, her computer access and client information had been removed.
Consultation
[45] Prior to commencing the Band 4 role, Ms Pollock says that Ms Wilkin asked her to sign a Band 2 contract, which she refused. At the hearing, Ms Pollock added that she was employed as a Band 3 employee from the start and that her understanding of Band 2 employees is that they were associated with home cleaning and personal care, which she says is not in line with the positions of the SSG employees. 30
[46] In November 2019, Ms Pollock recalls attending a meeting with Ms West, who invited ideas from the SSG employees on reinvigorating the SSG program. It was during this meeting that she says the SSG employees were notified they would be conducting individual visits and that they would be using their own cars and phones.
[47] Ms Pollock submits that the new position description is different to her previous one in the following ways:
• participating in planning activities for individuals;
• undertaking home safety checks; and
• using the EziTracker timekeeping system on her mobile phone.
[48] As regards the planning activities for individuals, when it was put to Ms Pollock that her current position description also requires SSG employees to assist in the planning, development and day to day operations of the service and to organise the revision of appropriate activities to stimulate members, Ms Pollock said that the difference is SSG employees get together and do assessments as a group, enabling them to bounce ideas off each other and plan as a group. 31 When planning for individuals, Ms Pollock says that they would run solo and be unsure as to whom they would report. Furthermore, she says that planning a group activity is “completely different” to planning an individualised activity.32
[49] In relation to home safety checks, Ms Pollock says that currently, they are already completed prior to the SSG picking up a client. She adds that the safety checks were completed by a different sector, and that the SSG were not allowed to pick up a client unless that safety check was completed. 33 As to the safety requirement contained in her current position description, that is to ensure safe work practices and procedures,34 Ms Pollock says that this relates to ensuring that clients were safe at all times as compared to ensuring they have a smoke alarm at their home.35
[50] In February 2020, Ms Pollock recalls she was advised by Ms Harrison that under the new arrangement, she would be rostered one day a fortnight at SSG and the remaining four days doing SSI work. She refers to the proposed roster and says that she is unable to work the days on which she is rostered to begin at 8:30AM as she is required to take her two children to school, and furthermore, that it takes her 45 minutes to drive to the Council so that if she worked three days for only 4 or 4.5 hours, this would require her to spend 50 per cent more time commuting, but working less hours overall. Ms Pollock conceded at the hearing that she did not provide written feedback to the Council as requested, but that she did give verbal feedback to Ms Harrison as at the time, she was working at the main office. 36
SSG vs SSI
[51] At the hearing, Ms Pollock gave further evidence of the activities undertaken at the centre which included movement to music, Tai Chi, games such as Rummy, Bingo, Marvel’s Memory Board, quoits, carpet bowls and quizzes. Furthermore, Ms Pollock said the SSG would also host theme days and memory days, in which clients could bring in photographs and talk about topics such as wedding days. 37 She concedes that while some of these activities could be conducted in an individual setting, others like Bingo or carpet bowls could not, and moreover, it “takes away the enjoyment of being in a group setting.”38 Additionally, Ms Pollock says that performing the activities in an individual setting “doesn’t give them the social stimulation that people require when it comes to group environment.”39
[52] When it was put to her the activities provided in Ms Harrison’s Supplementary Witness Statement could be conducted one-on-one, Ms Pollock agreed that cards, memory games, quizzes, some board games, bean bag games, music, Tai Chi, marbles and Easter activities could be performed within the home. 40 However, she maintains that there is a change to her inherent role as she has never worked in a client’s home before and her expertise and passion is to conduct these activities within a group setting to facilitate conversation and engagement amongst the clients.41
[53] Ms Pollock says that her passion and love is working with the elderly in a group setting, which is why she applied for the SSG position. 42 She does not wish to work in an individual setting as her background and passion is limited to working only in a group setting.43 Moreover, Ms Pollock says that she would ideally remain employed by the Council but only if she could maintain her current working conditions with the SSG and re-establishing the SSG to how it was previously run.44
[54] As to the proposed roster, Ms Pollock says that other than the 8:30AM start, her main concern was that if she were to conduct SSI, would she still receive pay if the client cancelled? Ms Pollock says it is also not clear how long she is to spend at clients’ houses, the number of clients she is to work with on each working day and whether she receives pay for clients she does not end up seeing, particularly in circumstances where she has driven 45 minutes from her home to work. 45
[55] During cross-examination, Ms Pollock acknowledged that while she preferred group activities, it was fair and reasonable for the Council to look at other ways to maintain the SSG employees’ employment. 46 However, she says that currently Band 2 workers are already performing SSI activities and that the only difference is “they don’t have to do the office side of it”.47
Ms Lynette Davis
[56] Ms Lynette Davis commenced working for the Council in August 2004 in home care and respite in a casual capacity, before securing a part-time position as a Personal Carer in the SSG in March 2005 and then as an Activities Officer in August 2008.
Consultation
[57] Ms Davis recalls that initially, the SSG had 12 employees with up to 6-7 employees working each day to host the many different activities groups, including a separate men’s and women’s group on Wednesdays, a core group and a dementia group on Mondays, a large core group on Tuesdays, another core group and dementia group on Thursdays, a disability group and a core group on Fridays, as well as a core group and carers group on Saturdays and Sundays. She says that their duties included picking up clients in a bus, thereby requiring the SSG staff to possess a rigid licence, as well as cooking for clients in the venue from soups, hot dogs and roasts.
[58] Ms Davis says in 2015, the Council announced that they would cease funding to community services. This resulted in backlash and Ms Davis recalls Mr Neiman retracting the decision and announcing that “things would continue as usual”. However, Ms Davis says that changes to the program began to occur.
[59] Ms Davis describes some of the changes as follows:
• Regular group outings decreased, initially from once a fortnight to four outings in a 12 week planner; 48
• Fortnightly meal outings decreased to now only two to three times a year;
• The Sunday group closed and over a year later, the Saturday group closed;
• Ms Wilkin commenced as the SSG’s new team leader in 2015, after which the staff were directed to end the cooking program and have meals delivered. Ms Davis says they were still permitted to cook with clients as an activity, such as through a BBQ or making scones, but that this needed to be approved by Ms Wilkin;
• The Monday group was closed on 6 January 2020;
• Due to the reduction in clients, the SSG employees were required to take turns to perform work in the main office. Ms Davis says this made her feel alienated, as she did not know where to sit and was not given much direction. When working in the main office, she says she is tasked with stapling and other menial tasks for the day.
[60] On 17 September 2019, Ms Davis recalls a draft copy of a new roster for individual home visits being shown at a meeting with Ms Harrison, Mr Liccanto and Ms Patterson. She also says that a new position description was provided, which is different to her previous position in the following ways:
• Participating in planning activities for individuals;
• Undertaking home safety checks; and
• Using the EziTracker timekeeping system on the mobile phone. Currently, Ms Davis says that they use the Council iPad with EziTracker.
[61] Ms Davis also describes that the proposed roster reduces their shifts from 14 to eight, which would result in only two employees working per day. She recalls that the SSG employees were advised that the changes would take effect after Christmas, and that they were required to undergo training with other carers and home support workers.
[62] Ms Davis further says that the roster contained one week of four days with the SSG team’s usual hours but that in the second week, they were rostered over five days to fulfil their usual hours, which she asserts is significantly different to her current arrangement that she has had in place for the last ten years; that is, working four set days a week.
[63] Other changes proposed, Ms Davis asserts, required SSG employees to have their own car and comprehensive insurance. Ms Davis recalls that the Council advised they would receive around $1.20 per kilometre mileage.
[64] Ms Davis submits that this is not a position she would have applied for had she seen it advertised. Further, she is not certain what the new role would involve.
SSG vs SSI
[65] At the hearing, Ms Davis explains that many different activities were planned and conducted at the SSG including footy tipping, quizzes, Bingo, chair-based exercises and lunches. Additionally, clients would be allowed to choose activities such as board games, marbles, charades or storytelling. Ms Davis says that many SSG clients were competitive and liked to participate with their friends, and so on this basis the activities would not be appropriate in an individual setting.
[66] As to planning activities for a group versus an individual, Ms Davis says to her, the difference is “huge” 49 as the clients enjoy the competitiveness of being together and their friendship.50 Furthermore, Ms Davis says she has always performed her work at the SSG centre.51
Ms Beverley Hartland
[67] Ms Beverley Hartland commenced working for the Council in 2005 as a casual Planned Activities Worker before securing a permanent part time position, with two permanent days per week, in 2006. She says she moved to four permanent days in 2008.
History with SSG
[68] Ms Hartland recalls that the SSG was formerly known as the Planned Activity Group. She says that the SSG ran seven days a week and that most days they would host two groups, sometimes three.
[69] Ms Hartland says the SSG owned a big bus that could seat 20 people, requiring a medium rigid licence, as well as a Ford Transit Van seating 8-10 and a team car. She says that these vehicles were used to pick up clients to the SSG centre, where they would have morning tea and lunch, unless they had a lunch outing. Following the meals, Ms Hartland says the SSG would take the clients to a destination of their choice. She describes the SSG conducting risk assessments on venues where they would take clients for group outings and that there was a resource folder in which the team documented and recorded the assessments. Risk assessment meetings were held weekly.
[70] Ms Hartland says that in 2015, the Council tried to close down the SSG as it was costly to run the Home and Community Care Services (HACC). She recalls there being backlash, which was reported in the news. She further says that the union collected signatures for petitions, which revealed that rate payers were paying $23 a year to top up the government funding received by the Council. She recalls the community expressing their wish to continue the services as there was still a need for them. Thereafter, Ms Hartland says the Council decided to continue the services and that meetings were held with the HACC workers to discuss how the services could be more cost efficient. The result of these meetings was a reduction in group outings and removing the takeaway meals that the SSG provided once in a four week period.
Consultation
[71] In early to mid-2019, Ms Hartland recalls the Council announcing that it had new funding for social support individual work, which was separate from the group funding. She recalls Ms Harris suggesting that the new funding would enable the SSG employees to “go into homes and do one on ones with clients”.
[72] On 9 August 2019, Ms Hartland says she received a letter from Ms Harris which stated Ms Hartland was classified as a Band 2 employee being paid a Band 3 salary.
[73] On 17 September 2019, Ms Hartland says a meeting was held with Ms Wilkin and Ms Harris, where the SSG employees were first advised about the proposed job description. Ms Hartland recalls Ms Harris having a draft roster, but this was not distributed. She also remembers being told that they would need to use their own cars and phones. A new job description was provided, and Ms Hartland describes the changes as follows:
• Participating in planning activities for individuals;
• Undertaking home safety checks; and
• Using the EziTracker timekeeping system on the mobile phone.
[74] She says that prior to this, the SSG employees were directed never to go into a client’s home and that their job was door to door only.
[75] During her staff appraisal in September 2019 with Ms Wilkin, Ms Hartland says that she was given the new job description and directed to sign on the top. As the job description was labelled Band 2, Ms Hartland queried this and says she was advised that she no longer could be classified as a Band 3 as the SSG were only classified as such for working on weekends, which they were no longer doing. Ms Hartland says Ms Wilkin told her to sign the position description the same day, and further recalls that “social support individual” was added to the description.
[76] Ms Hartland says the SSG had a meeting with Ms West and Ms Patterson in December 2019, during which they distributed a draft roster. According to this proposed roster, Ms Hartland asserts she was rostered for one week working five days and the next week working four days. Ms Hartland says ever since she secured a four-day working week, she had set days. As to how the hours would be made up, Ms Hartland was told that the five-day week would involve six hour shifts whilst the four-day week would involve 7.6 hour shifts. Furthermore, Ms Hartland recalls being told that the groups would run during the four-day week while during the five-day week, staff would conduct the individual visits. She says the SSG employees were given until 3 January to respond with their feedback.
[77] Ms Hartland says that the SSG employees all put in individual responses about how they were currently working four-day weeks and had been for a significant period of time and that it would be unfair to suddenly require them to work five days a week. She says that no response was received in relation to these concerns.
[78] Ms Hartland says that in terms of performing the SSI work, all she understood about the role was that she would be required to attend a client’s home to do “some sort of program with them”. She says she attempted to clarify this with Ms Harris but was met with no answer.
SSG vs SSI
[79] As to the activities conducted at the SSG centre, Ms Hartland explains that she would run mini golf, ten pin bowling, quoits, hooky, board games, Bingo, quizzes and exercises. She says that none of these activities were appropriate in a one-on-one setting as they were all centre-based. 52
[80] During cross-examination, Ms Hartland agreed that a fair amount of activities could be performed in an individual’s home including cards, memory games, quizzes, board games, bean bag games, listening to music and Tai Chi. 53
[81] In planning activities at the SSG centre, Ms Hartland says that the SSG employees do their best to work with everyone’s goals, which are all different on any given day, to achieve them 54 and concedes that this is not too different from working one-on-one with an individual on their goals.55 However, as she has not performed work with an individual in their home, Ms Hartland could not comment on the Council’s proposition that there is no difference in the planning aspect of the current and proposed position descriptions.56
[82] Moreover, Ms Hartland says she has never conducted home safety checks previously. 57
Evidence of the Council
Ms Sue Harrison
[83] Ms Sue Harrison has been employed by the Council since 2008 and has held the position of Home Support Coordinator since 23 November 2008.
History of SSG
[84] She recalls that when commencing to look after the SSG, it was operating six days a week with approximately 220 clients and eight staff. She describes the activities conducted at the time to be similar to or the same as the types of activities undertaken presently, which included:
• Bingo;
• Memory games;
• Physical exercises; and
• Appropriate group outings.
[85] Ms Harrison says the SSG does not currently operate on weekends as Sunday services ceased around 2008 while Saturday services ceased in 2015.
[86] In 2014, Ms Harrison says a review of the Council’s Aged Care Services (operating as HACC at the time) was undertaken, following which the Council made a decision to cease the brokerage services from 30 November 2014. She says a further provisional decision was made in February 2015 to cease the provision of HACC services, however, this was met with backlash from the ASU and the community.
[87] On 15 April 2015, Ms Harrison says the ASU wrote to Mr Niemann proposing a number of efficiencies that could help the Council continue running the home support services. She says that this letter demonstrated the ASU’s then commitment to keeping its members employed through change.
[88] On 5 May 2015, Ms Harrison recounts a resolution being passed for the Council to retain HACC services and to continue operating them with the aim of becoming a cost-neutral service, fully funded by State and Federal Governments and client fees. She further says that eliminating the provision of brokerage services has resulted in a decline of SSG clients, as they are required to purchase the services from other providers.
[89] Ms Harrison says the transition from HACC program to the Commonwealth Home Support Program (CHSP) occurred in August 2016. She says that the SSG is now funded and delivered in accordance with the CHSP, which has further affected client numbers as the CHSP SSG program is only eligible to entry-level older people with basic needs. She explains that clients with higher needs on aged care packages are not eligible for the CHSP SSG service. This contrasts with the HACC SSG service, which Ms Harrison says was intended to prevent older people and people with a disability and their carers from going into permanent care, thereby enabling people with higher needs to participate. Under HACC, she says the Council had both core and high care clients.
[90] According to the CHSP, Ms Harrison says, the role of the SSG is to provide the following:
• Assistance for frail older people to participate in community life and feel socially included through structured, group-based activities that develop, maintain or support independent living and social interaction;
• Opportunities for clients to attend and participate in social interaction which are conducted away from the client’s home in a fixed base facility or community-based setting; and
• Light refreshments, transportation and personal assistance for clients attending the centre.
[91] Ms Harrison says that other factors that have affected SSG client numbers between 2014 and 2019, with client numbers dropping from 220 to 70 in 2019, include the following:
• The Council opting not to apply to be a NDIS provider in 2017;
• The Council ceasing to provide home and community care for younger people in January 2018.
[92] She adds that the Council’s efforts in building the SSG program included advising assessment services, such as ACAS and RAS, that the Council had availability for clients in the SSG.
[93] At cross-examination, Ms Harrison clarified that the Council did not opt to apply for NDIS funding as at the time, there were only five clients involved in the SSG that were eligible. On that basis, the Council determined that SSG was not the most suitable service for these five individuals. 58
[94] As to the declining SSG client numbers, Ms Harrison said that this number has since stabilised. 59
[95] The significant decline in SSG client numbers in 2019, Ms Harrison says, resulted in overstaffing on some days. By way of example, she says there are only 5-7 clients in the centre on Mondays with three rostered staff. She says the Council’s requirements for staff to client ratio is 1:7-8, which is benchmarked against other service providers. She says that for a period of time, the SSG staff continued to work at the centre even though they were working below the ratio.
[96] Ms Harrison says that in 2017, the Commonwealth Government gave the Council funding for Social Support Individual (SSI), representing an opportunity for a new program.
Consultation
[97] Throughout 2019, Ms Harrison says she spoke to SSG employees about finding ways to increase client attendance. She recalls at a Home Support Workers’ meeting on 26 March 2019, a number of changes with the SSG employees were discussed, in particular the ratio of eight clients to three staff on Mondays. She says it was suggested that one SSG employee may have to work from the office on Monday, or change their work day to Tuesday.
[98] On 28 March 2019, Ms Harrison says an email was sent by Ms Wilkin to SSG employees requesting that one person work from the office on the following Monday due to low client numbers. It was from this time that SSG employees were rostered on an ad hoc basis to work in the office when there were excess staff. Ms Harrison says that the Council usually sought a volunteer. She further says that Ms Hartland has worked fairly regularly in the office by agreement, but that if either Ms Davis or Mr Seddon were absent, she would return to the SSG. Ms Harrison recalls that Ms Davis has worked in the office about five or six times while Mr Seddon has worked no more than four times on a part-day basis, whereupon he returned to the SSG centre to assist with meals and cleaning.
[99] As to the office duties, Ms Harrison says that the SSG employees were requested to carry out the following tasks:
• Client phone calls;
• Phone calls to clients to obtain permission for the Council to provide their information to My Aged Care;
• Putting together packs for home support and assessment;
• Enter SSG client attendance into Expedite;
• Answer phone calls;
• Suspend clients; and
• Plan SSG activities.
[100] Ms Harrison says Ms Davis, Mr Seddon and Ms Hartland often took annual leave and sick leave on days they were asked to work in the office. She further explained at the hearing that when SSG employees were rostered to work or requested to work in the office, they could nominate who would undertake these duties but that oftentimes on days when Ms Davis, Mr Seddon or Ms Hartland were nominated, they would call in sick or request annual leave. 60 On those days, Ms Harrison says that the Council did not replace them.61
[101] On 19 June 2019, Ms Harrison sent the following email to SSG employees:
“Over the past few years there has been a significant decrease in clients attending the SSG in response to the implementation of CHSP and increase in clients receiving package care who are no longer eligible to attend the City’s SSG.
Please refer to the SSG guidelines (below) to refresh the purpose of the group.
We will be reviewing how business is done which will change the way we provided the program.
I am wanting staff input to how you think the group could look in the future to support the needs of our current and future clients.
Please consider:
• The CHSP guidelines
• Please note that the program should be in the centre with the occasional planned excursion
• Efficiencies
• Client Goals
• Group goals
• Variety of structured and planned activities
• Transport
• Staffing level for number of clients
• How we support clients that are no longer managing at the group to transition to an alternative program.
When we review the service we will be:
• Meeting with current SSG clients
• Getting feedback from older community members
• Meeting with Volunteers
• Getting feedback from Volunteers in other areas of council
• Bench marking with other groups
• Reviewing the information of the All Ages All Ability community engagement
• Meeting with the Positive Ageing Group
NB: To ensure that this review is done sensitively for current clients, staff are directed to not discuss this review or any parts of it with the clients or volunteers. This is the role of the Team Leader and Coordinator.
CHSP Guidelines for Social Support Group Social support – Group (formerly known as Centre-Based Day Care) provides an opportunity for clients to attend and participate in social interactions which are conducted away from the client’s home and in, or from, a fixed base facility or community based settings.
These structured activities are provided in a group-based environment and designed to develop, maintain and support social interaction and independent living.
Activities may take the form of:
• group-based activities held in or from a facility/centre (e.g. pre-set or individually tailored activities promoting physical activity, cognitive stimulation and emotional wellbeing)
• group excursions conducted by centre staff but held away from the centre.
Services may include light refreshments and associated transport and personal assistance (e.g. help with toileting) involved in attendance at the centre.
Usually centres or fixed-base facilities but can include community settings away from the centre (e.g. group excursions).”
[102] Ms Harrison says no feedback was received.
[103] During this time Ms Harrison also asked the SSG employees for an expression of interest for the position of Home Support Officer from 9 September 2019 to 9 December 2019, which Ms Pollock eventually secured. She says the contract was to backfill the role of Mr Bob Haigh, who was on extended leave. The contract was extended by mutual agreement until 25 February 2020. As a result, Ms Pollock was not rostered to work for the SSG during this period. Ms Harrison says Ms Pollock also undertook higher duties into a Band 4 role to backfill Ms Sheryl Hartney from 2 December 2019 to 24 January 2020.
[104] She says a further meeting was held with the SSG employees on 6 September 2019, along with Mr Ivan Lucanto and Ms Esther Patterson, the Human Resources Coordinator and Senior HR Adviser respectively. Ms Harrison recalls discussing the reduction of SSG clients and the need to make changes to the SSG service, as well as the possibility of the SSG employees making up their hours by performing Band 2 community care work, for which they had the skills and qualifications. She says this advice was based on the notion that SSG staff were actually Band 2 classifications who were historically paid at a Band 3 classification due to working weekends. Ms Harrison says the SSG employees disagreed with this and so the Council had agreed to look into the history of the matter further.
[105] Following the meeting, Ms Harrison says the Council reviewed the SSG employees’ positions and concluded that they had always been Band 3, with there being nothing in writing to suggest that they were paid at a Band 3 classification due to weekend work. Mr Lucanto advised the ASU of this by email.
[106] Around this time, Ms Harrison says she also started drafting a discussion paper to present to Ms Vicky Mason, the Director of Health and Wellbeing at the Council, to present a number of options on how to manage the SSG service going forward, given it was currently overstaffed for the declining client base. She says this process was delayed due to Mr Lucanto leaving the Council in October 2019, Mr Chris Kelly, Manager of Community and Wellbeing, leaving in September 2019, and Ms Andie West, the new Manager of Community and Wellbeing, commencing in October 2019.
[107] On 28 November 2019, Ms Harrison convened another meeting with the SSG employees and Mr Danny Harris from the ASU, together with Ms West and Ms Patterson. She recalls during the meeting that the SSG employees and Mr Harris were advised that while there was a current delay in making a decision, the Council was still working towards a solution. She also says it was confirmed in the meeting that the SSG employees will continue to be classified as Band 3. Furthermore, the possibility of ceasing SSG groups on Mondays in 2020 was raised. Ms Harrison says that the SSG employees and Mr Harris expressed disappointment at the fact that a decision had not yet been made.
[108] Following the meeting on 29 November 2019, Ms Harrison says she received an email from Mr Harris advising that the SSG employees were upset about the lack of progress and had resolved only to come into the office to work if they chose to, and reserved their right to not work in the office. She says Mr Harris also called Mr Niemann the same day to agitate their complaints.
[109] On 3 December 2019, Ms Harrison says she attended a meeting with Ms Mason, Ms West and Ms Patterson to discuss the draft discussion paper to determine a way forward with the SSG. She says the key message of the discussion paper was that, due to a decrease in client numbers accessing the SSG, it was no longer viable to run the SSG service five days a week. It was therefore proposed that the service would reduce operation to four days a week from Tuesdays to Fridays, 9:00AM to 4:30PM, effective January 2020, with the intention of scheduling clients equally across the four days, equating to approximately 16 clients per day. Furthermore, Ms Harrison says that it was determined that it was no longer viable to have three staff operating the SSG on any day given the 1:7-8 staffing ratio, so with approximately 16 clients per day it was proposed that staffing numbers be reduced to two staff per day, four days per week. She says this would have resulted in a 1.41 reduction of FTE.
[110] Ms Harrison recalls Ms Mason agreeing that the changes to the roster were required and asserted that the Council still had a service to run, and work for the SSG employees to do. As such, Ms Harrison says the Council concluded that none of the options discussed in the paper was suitable and so she raised the option of the SSG employees undertaking SSI work in the home. She says Ms Mason agreed to progress this option as it had the least impact on staff and would provide an opportunity to improve the delivery of SSI work. She asserts that this was not considered to be a significant change as it was the same type of work with the same purpose currently undertaken by the SSG employees.
[111] Ms Harrison says on 11 December 2019, she met with the SSG employees together with Ms West and Ms Patterson to discuss the proposed changes and to request their feedback. During the meeting, a discussion about reinvigorating the SSG service was discussed. She recalls the SSG employees having a number of concerns and that they were encouraged to provide their feedback so that it could be taken into consideration as part of the Council’s decision-making process. The following memo was also distributed to the SSG employees:
“11 December 2019, 4:00pm
Meeting Summary – Proposed changes to Social Support (transcribed from notebook)
Attendees: AndieWest –Manager CommunityWellbeing, Esther Patterson – HR Adviser, Sue Harrison – Coordinator CommunityWellbeing, Social Support Staff - Allan Seddon, Lynette Davis, Bev Hartland, Jacinta Pollock
• Andie Introduces meeting and provides a history
• Andie Reads through memo of proposed changes
• Esther talks about Proposal being in line with section 14 of the enterprise agreement
• Discussion around having a service to provide and needing staff to do it, (the City) considers this to be like work, not a significant change
• Andie talks about wanting to work together to reinvigorate the service – opportunities to do this through planning
• Discussion around history of service and what led to this
• Sue talks about how running the service in the home will provide opportunities for the centre
• Concerns raised by staff with regards to hours, changes, working in the home, service reduction, services diminished
• Encourage staff to consider the changes and provide their feedback, will work with them to develop the roster”
[112] Ms Harrison says on 6 January 2020, the SSG stopped operating services on Mondays.
[113] On 10 January 2020, 62 Ms Harrison says she met with the SSG employees and Mr Harris together with Ms West and Ms Patterson to discuss the draft position description in detail as well as the example roster that had been sent to them on the preceding day. Ms Harrison says that the position description had been updated to reflect the work currently being performed by the SSG employees, to include the provision of the SSI and to classify the tasks in the position description as Band 3.
[114] Ms Harrison says the purpose of the meeting was to obtain further feedback from the SSG employees and to demonstrate how a future roster could look as the Council wished to include them in the planning of the roster. Ms Harrison says the SSG employees were specifically advised as to how they would meet with the client at the first visit to seek information and develop suitable activities to undertake. She says there was an opportunity for SSG employees to seek further clarification during this meeting and a further week following this to provide any additional feedback She recalls the SSG employees expressing that they believed their roles to have changed significantly and that they were meeting with Mr Niemann the next day to plead their case.
[115] On 17 January 2020, Ms Harrison says Mr Steven Abbott, the Acting Director of Health and Wellbeing, confirmed that the Council had made a decision that the changes were not significant and that it would progress to implementation. The SSG employees were advised of this decision in a letter signed by Mr Abbott the same day, stating:
“RE: SOCIAL SUPPORT GROUP
As you are aware, on 11 December 2019, due to a decrease in the number of clients accessing the Social Support Group Service, proposed changes to the Social Support Group were provided to you for consultation.
Following receipt of your feedback, an updated position description and example roster were shared with you for further comment. These documents were discussed with you in a meeting on Thursday 16 January 2020. 63 Following this, it was agreed you would have another week to consider and provide feedback on the proposed changes.
Following this consultation period, and meetings with myself, and the CEO, the City of Greater Bendigo (the City) has determined to implement the changes to the role of Social Support Worker as per the updated position description effective 3 February 2020.
We have listened to your feedback & thoughts, and acknowledge this has been a challenging and lengthy process for you, however whilst there will be some changes to your role, it is the City’s position that your role is ongoing and is not redundant. We look forward to continuing to work with you, and utilising your expertise to reinvigorate the Social Support Service going forward.
Sue Harrison, Home Support Coordinator will be in touch to confirm specific details of the changes, and work with you to develop a roster.
I appreciate that change can be challenging and I encourage you to contact the City’s Employee Assistance Program, Converge International on 1300 687 327 for free professional and confidential counselling.”
[116] On 31 January 2020, Ms Harrison says she received an email from Mr Harris advising that the ASU was lodging a dispute over the Council’s decision.
[117] Ms Harrison says that an additional meeting was held with Ms Pollock, Ms Davis and Ms Hartland on 5 February 2020, during which she says she discussed the requirements of the role in detail with them. Furthermore, Ms Harrison says she has conducted a refresher on client care planning and goal setting.
SSI v SSG
[118] At the hearing, Ms Harrison denied that it was her historical misunderstanding of the classifications that drove the Council’s decision to redeploy the SSG employees into SSI work. 64 Ms Harrison says that the SSI area was one which the Council wished to expand, as social isolation is a big issue in its aged community. Furthermore, she says that while SSI services are currently being provided by the Council’s Band 2 home support workers, this is a very basic respite-like and welfare check service and they do not undertake individual goal setting, planning or the administrative duties associated with the program, such as the safety check. Ms Harrison says that the Council does not wish for the Band 3 SSG employees to provide the same service currently being provided by the Band 2 employees.
[119] Ms Harrison says that the Council is required to use the funding to develop its own program to align with the purposes and objectives defined by the CHSP Guidelines and that the SSI program is a service that has room to be improved and become more activity-based. She says that this could be done by using the skills and experience of the current SSG staff, who are able to undertake planning and assessment activities with clients which the Band 2 employees do not currently perform. Ms Harrison says that the Council hopes the SSG employees would enhance the service and work with the clients to create a care plan of activities in line with the reablement principles, just as they currently do with the SSG clients. She asserts that having Band 3 employees perform SSI services provides an opportunity to enhance the SSI program, making it more activities based and better able to identify clients’ needs, including the possibility of integrating clients into the SSG program if they are assessed as suitable. Ms Harrison says this is an opportunity being missed now, due to the way SSI programs are currently being run.
[120] When it was put to her by the ASU that Band 2 employees could identify clients to participate in the SSG program, Ms Harrison said that Band 2 staff do not conduct any planning or goal setting with clients, and only perform a program that has been pre-written for the clients. She asserted that the Council’s intention was to replicate what was happening in the SSG centre in the homes of the clients, and as such the skills of the SSG employees would be really valuable. Ms Harrison conceded that other individuals could also suggest that the client be integrated into the SSG program but that the SSG employees’ skills were required to assist those clients in building their capacity and re-abling them to do so, which is the purpose of the funding. 65
[121] As to the SSG’s current assessment capabilities, Ms Harrison said that SSG employees work with new clients to develop a care plan based on the client’s goals and the activities that they wished to partake in so as to determine the “best way for the client forward.” 66 She asserted that this type of care plan assessment would be performed in the same manner in an individual setting.67
[122] Ms Harrison says that the types of activities performed, both in the group setting and in the individual homes, is largely up to the social support worker. She explains that the intention is that the SSG employees work with the clients in either a group or individual setting so as to develop a schedule or care plan of appropriate activities based on the guidelines of the program.
[123] Pursuant to the CHSP guidelines, Ms Harrison says the SSG service may involve group-based activities held in or from a facility/centre, as well as appropriate group excursions, while the SSI service may involve individually-tailored activities promoting physical activity, cognitive stimulation and emotional wellbeing. She says these activities include puzzles, games, reading and telephone or web-based monitoring, as well as accompanied activities outside the home.
[124] As to the activities currently being performed by SSG employees in the group setting, Ms Harrison says most of the activities can also be performed with individuals in the home or be modified to be done within the home. The activities include:
• Playing cards;
• Discussion groups, with a modified version able to be performed at home;
• Memory games;
• Quizzes;
• Playing board games, with a modified version able to be performed at home;
• Bean bag games;
• Music;
• Tai chi, with a modified version able to be performed at home;
• Walking;
• Ten pin bowling, with a modified version able to be performed at home;
• Outing to pottery, which is not available to be performed at home;
• Movement to music, with a modified version able to be performed at home;
• Triominos;
• Chair dancing, with a modified version able to be performed at home;
• Marbles; and
• Easter activities, with a modified version able to be performed at home.
[125] Ms Harrison says there are no changes to the role in relation to the running of the SSG and that the only change proposed is the addition of working in the home with individuals. She says there is still a requirement to work alongside volunteers when working in the SSG centre and that notwithstanding this, volunteers are normally managed or supervised by the Team Leader, not the SSG employees.
[126] Ms Harrison says that one of the objectives of the SSG program is to provide respite for carers so that they can have a break when clients attend the centre, and that this remains the case. She further asserts that by conducting the SSI programs at home, this would also provide respite to carers who are unable to participate in the SSG.
[127] When it was put to her that this was the first time she had provided a list of activities, Ms Harrison said that she had already spoken to the SSG employees about the different activities that could be done and that in building the above list, she looked at what was already being performed in the SSG centre and made an assessment as to whether it could be performed in a client’s home. Moreover, Ms Harrison said that the SSG employees are not limited to the activities she listed and that the activities would be based on the client’s needs and how they can be re-abled under the principles of the CHSP. 68
[128] Ms Harrison gave an explanation at the hearing as to how she thought modified versions of certain activities could be conducted, such as ten pin bowling and facilitating discussions with others through technology. 69
[129] In relation to the differences between providing the SSG and SSI services, Ms Harrison submits the following:
• Time with the client, where SSG employees would spend 1-2 hours with a client in their home and attend a number of home visits in a day as opposed to hosting a group of clients all day at the SSG centre;
• Location, where the SSG employees would perform their duties in the client’s home rather than at the centre;
• Personal car usage to travel to clients’ homes; and
• Personal mobile phone usage for the purposes of using EziTracker, which is a tool the Council requires to ensure the safety of their staff as it tracks where staff are and can also be used for timekeeping for billable purposes.
[130] As to the key differences between the old and new position descriptions, Ms Harrison summarises them as follows:
• All four staff have different position descriptions on file, depending on when they started. The new position description has been updated to reflect their current duties, given the old position descriptions are out of date, with the following key changes:
• Provision of activities in the home as well as in a centre-based environment with the purpose of activities being the same in both venues;
• The requirement to undertake safety checks in the individual client’s home;
• The use of EziTracker on the employee’s personal mobile phone for timekeeping and safety;
• The use of the employee’s personal car to travel to client homes.
• All position descriptions require the SSG employees to undertake the following:
• Planning and developing activities related to the program;
• Undertaking administrative activities; and
• Working in the home, which was already listed as a responsibility in the old position descriptions.
[131] Ms Harrison confirmed at the hearing that the differences outlined above were not significant changes for the following reasons:
• The employees’ actual work will be the same and only the setting will be different, noting that they often do one-on-one work in an SSG environment; 70
• The employees will be compensated for the use of their personal phones, 71 and are already using it for the purposes of SSG;72
• The employees will only use their car when performing SSI duties, for which they will be paid an allowance, and they will still be able to utilise the buses when performing SSG work. As for the requirement in the Agreement pertaining to comprehensive car insurance, Ms Harrison explained that this was only required if an employee wanted to receive a payment from Council for an excess of up to $1000 in relation to an accident occurring during work; 73
• The employees’ roster during their SSG week will remain the same while the roster for the SSI required a change in hours due to the individual needs of clients. However, Ms Harrison asserted that the number of total hours will remain the same and that employees will be paid for the same number of hours; 74
• The changes as a whole were not significant because the employees possessed the skillset to be able to perform the duties of the proposed new role. 75
[132] In relation to office work, Ms Harrison says that over the last 12 months, the SSG employees have been asked to come into the office to undertake administrative duties when the staff to client ratio was too high. She says that going forward, if the changes to the program are implemented, the Council’s intention is to spend less time in the office undertaking administrative tasks and more time spent working with clients. She further says that the administrative tasks, when required, would only be associated with the SSG program and may include the following:
• Calling clients;
• Using Xpedite to document client attendance and adding suspensions;
• Undertaking planning for the SSG program;
• Reviewing and evaluating program activities;
• Reviewing documentation;
• Developing client care plans;
• Performing other administrative duties associated with the SSG;
• Writing reports on the clients; and
• Performing home safety checks in the client’s home.
[133] Given the number of clients requesting SSI services, Ms Harrison says that it is likely there will be little time when the SSG employees would not be with clients and that client-free time would likely occur when clients cancel due to illness. If this is the case, the SSG employees would be requested to attend the main office or the SSG office to work with the office staff. She says that there has always been a requirement for SSG employees to undertake administrative duties and that this component of the role will persist.
[134] At the hearing, Ms Harrison confirmed that this was still the Council’s intention so that SSG employees will not lose any hours and be able to work their rostered hours. 76
[135] Ms Harrison recognises that the SSG employees have always worked a set pattern of days and hours but says that to meet client needs, changes to the roster would be required. She says there has been no reduction in the SSG employees’ fortnightly hours, just the spread of hours.
[136] She also referred to the Planned Activity Group section (Part D) of the Agreement, which enables the Council to vary the agreed number of hours from fortnight to fortnight according to client demand as well as to maintain flexibility in meeting the needs of clients and employees. On this basis, while Ms Harrison acknowledges that it has been common custom and practice for SSG employees to work set days and hours, she says that in undertaking a change in the process, the rosters can be changed as per the Agreement. Furthermore, she asserts that it has been the Council’s intention to work with the SSG employees to develop the roster and to provide them appropriate notice and opportunities to give feedback prior to implementation.
[137] Ms Harrison says that SSG employees are rostered to areas within Bendigo with most jobs being around 5km apart, but that some may be further, although no more than 15-20km. She further says that the amount of travel time will depend on the number of clients they are to see in a day. Moreover, the Council does not currently cater to clients in the Elmore and Heathcote areas.
[138] Ms Harrison disputes the suggestion that the proposed role has less job security and asserts it actually affords more security because it provides the Council with additional flexibility in how staff can be rostered and the SSG employees with the ability to perform their work in another environment. Furthermore, Ms Harrison submits that performing work with individuals in their homes would enable staff the opportunity to build SSG clientele, if they assess them to be suitable. Ms Harrison says the mix of both individual and group work is intended to support older people who are isolated so as to assist them in regaining skills that would allow them to return to the group setting. As both individual and group work have their merits, Ms Harrison says there is security for the proposed roles. 77
Ms Andrea West
[139] Ms Andrea West has been employed by the Council since 2 October 2019 as the Manager of Community Wellbeing.
Consultation
[140] She recalls that upon commencing, she was provided with a briefing regarding the impending changes to the SSG program which were required due to a decrease in demand for the service, which she says had been influenced largely by sector change in previous years. Ms West says that consultation regarding the need for service delivery change had commenced prior to her commencement and that a discussion paper outlining possible options was being developed by Ms Harrison. She says she provided Ms Harrison support with the discussion paper so that it could be presented to Ms Mason for her decision.
[141] Ms West says she met with the SSG employees for the first time on 28 November 2019. Also in attendance were Ms Harrison, Ms Patterson and Mr Harris from the ASU. She recalls that the SSG employees wanted a decision with regard to how their positions would be impacted by the impending change and that she had explained to them the discussion paper was still being drafted for presentation to the Director, and that this was a priority. Ms West says that the SSG employees also took the opportunity to provide a history of their experience with the process so far and there was collective agreement that the process had taken a long time, with barriers to effective communication throughout . Some SSG employees, she recounts, expressed their expectation that a decision to make them redundant was to be handed down in the meeting. Ms West says she reassured the SSG employees that the process would be expedited and invited a further opportunity for direct support with or from her.
[142] On 3 December 2019, Ms West says that she met Ms Mason together with Ms Harrison and Ms Patterson to discuss the options presented in the discussion paper. She recalls various options being discussed with consideration of the impact on the community and the SSG employees. She says that the priority was to keep the SSG employees employed, and in doing so, to respect their qualifications, experience and current conditions, to ensure the changes are equitable across the team, and to involve them as much as possible in the future planning of the program. It was during this meeting that Ms West says Ms Harrison discussed the need to increase the delivery of the SSI services, and recognised that the SSG employees all had the relevant qualifications and skills set to cater to this space. Ms Mason therefore made the decision to use the existing SSG employees and their skillset to provide social support activities in both a group and individual setting, which was considered to be only a slight variation to their current duties.
[143] On 11 December 2019, together with Ms Harrison and Ms Patterson, Ms West says she met with the SSG employees again to discuss the proposed changes. At this meeting she distributed a memo as well as invited and encouraged the SSG employees to provide feedback by 3 January 2020. She also recalls that an additional invitation to work collaboratively to develop a draft roster was extended during the meeting, and the SSG employees were reminded they could use the Employee Assistance Program to obtain additional support if required.
[144] Ms West says she received feedback from Mr Seddon, Ms Davis and Ms Hartland. She says the feedback was limited to them not agreeing with any of the proposed changes and that they thought the changes were significant. She says that there were no suggestions or support for making changes positively, and further said at the hearing that there was no “tangible sort of feedback around a positive way forward for everybody”. 78
[145] On 20 December 2019, Ms West says she emailed Mr Harris from the ASU to correct misinformation that had been provided to him in relation to participant numbers and service delivery. The email said as follows:
“Good afternoon Danny,
In the interests of transparency, good communication and a positive working relationship, I wanted to provide some additional information, and clarify what appears to be some miscommunication around the Social Support Group at Kangaroo Flat.
Client numbers | While client numbers have decreased over recent times, there is currently 79 clients registered for SSG, and there are anywhere between 46 and 62 clients attending across the week |
Trend in decreasing client numbers | The City is looking at ways of reinvigorating the service and will be expected to continue to provide this service until at least 2022. This was explained to the SSG staff when we met on 11 December 2019, and the staff group was invited to be involved in this process |
Proposed “significant variation to their position descriptions” | The City does not consider the proposed changes as significant, any administrative duties are related to the program. The work will still be Social Support however staff will be providing the service to individuals in a different setting (ie: in the home) as well as the traditional group setting. Staff already provide the service in a range of settings, as they take the group out to different places from time to time |
“Redeployment” opportunities | The City does not consider there is a need for “redeployment”. Staff are still employed as social support workers, paid at a Band 3. Due to a drop in group numbers, they will be required to provide the social support service in the home as well as in a group setting. Their positions still exist, with some variation re: the setting in which the service is provided, therefore redeployment is not applicable. |
Seeking redundancies | The current service and positions still exist, with slight variation, therefore redundancy is not applicable. |
We are looking for feedback from the staff involved about how best to move forward in this space, and I believe you will be a great resource and support to the group.
I hope an understanding of the above information assists the process. I would be happy to have further conversations with you and the group at any time, with the aim of moving forward positively.
Use of phones
[174] The ASU submits that the SSG will experience the following changes in relation to the use of their phones:
• SSG employees will be required to use their personal phones when conducting in-home support visits when previously, they used Council iPads to pick clients up as part of the SSG activities;
• SSG employees will be required to download the EziTracker timekeeping application; and
• SSG employees have been informed that the only compensation they will receive for the use of their personal phones is a one-off payment of $100.
[175] The ASU submits that the requirement for the SSG employees to use their personal phones and their cars to undertake significantly more driving so as to work in completely different locations demonstrates the unreasonableness of the Council’s redeployment offer.
[176] The ASU submits that Ms West’s oral evidence during the hearing indicated that a significant change to the positions was necessitated by contextual factors, being the introduction of My Aged Care and the NDIS, which have resulted in a significant shrinkage of the client base for the SSG and thereby rendering the positions originally filled by the SSG employees redundant. The evidence on which the ASU relies upon was given as follows:
“The location of activities, the use of their phones, the use of cars, and the way their hours are distributed across the fortnight, do you accept that all these changes taken as a whole are significant?
I don't - in the context of the change in sector and keeping pace and making sure that we are providing a community service and meeting the needs of our participants, no, I don't think it is significant. I think any service provision to any community member who is eligible for this service is - we need to keep up with the times, and service provision needs to change to meet the needs of our community, and that is exactly what this program is funded to do, so within the context of the broader sector changes and the redesign, I suppose, with the introduction of My Aged Care and the NDIS I don't believe it to be significant, no.” 95
Whether the changes as a whole are significant
[177] The ASU submits that the Council has mischaracterised the reality by describing the main difference in the two jobs as being a mix of working between the centre and the clients’ homes. It submits that the inherent requirements of the job now also require the SSG employees to have their own vehicle and own mobile phone, and that the type of work done in clients’ homes is different to that performed in the group setting. Furthermore, other changes include the types of activities undertaken, no longer working with and supervising volunteers, as well as providing support for carers.
[178] The ASU also submits that while the hours worked fortnightly remain the same, the hours worked weekly varies and the number of days in which the hours are made up have increased. It asserts that this is a significant change as it has a major effect on the SSG employees’ work life balance as well as their ability to care for their families. It refers to and relies upon Clause 10.4.2 of the Agreement, which it says states that rosters would be developed taking into account the needs of the employees, but that this has not occurred in these circumstances. The ASU therefore submits that a redundancy has in fact occurred as contemplated by Clause 16.1 of the Agreement.
Submissions of the Council
[179] The Council submits that the clear and unequivocal objective of Clauses 14.1 to 14.3 of the Agreement is to maintain continuous employment and that the ASU’s position for termination by way of redundancy “goes against the very essence of what the relevant clauses of the Enterprise Agreement seek to achieve”. It submits Clause 14 “sets the scene” for, and should be read in conjunction with, Clause 16. The Council challenges the ASU’s position that the SSG employees’ employment be terminated by reason of redundancy with total disregard for the requirements of redeployment, contrary to the obligations under Clause 14 of the Agreement.
[180] Moreover, the Council submits that regard should be had to Clauses 10.4.2 and 10.4.3 of the Agreement pertaining to rosters and agreed hours of work. It submits that the proposed new roles fall “fairly and squarely” within the letter, spirit and intent of those clauses.
[181] The Council relies on the wording of Clause 16.1 of the Agreement that “a redundancy occurs when the CoGB has made a definite decision that the position an employee is performing is no longer required to be performed by an employee”. The Council submits that it still requires the positions performed by the SSG employees to be performed by them and that the only difference is the location of the performance on alternate weeks.
[182] The Council submits that a redundancy has not occurred. It relies on the Federal Court’s decision in Sensis Pty Ltd v Gundi 96 and submits that the same principles apply in this matter, in particular:
• The rate of pay stays the same;
• The classification stays the same, that is Band 3;
• The total number of hours worked per fortnight stays the same;
• The proposed changes enable and foster job security in compliance with Clause 14 of the Agreement; and
• The SSG employees will be paid the appropriate allowances in accordance with the Agreement for the use of their private motor vehicles and mobile phones.
[183] The Council submits that the ASU’s evidence does not deal with matters that go to the essence of the application and focussed primarily on the employees’ subjective grievances or fears regarding the proposed changes, and the perceived diminished enjoyment that clients would have in an individual setting. It asserts that these considerations are entirely irrelevant to the matters to be decided by the Commission.
[184] The Council submits that the key differences between the former and proposed position descriptions are:
• Provision of activities in the home as well as in a centre-based environment, where the purpose of the activities is the same both individually and in the home;
• Requirement to undertake safety checks in the home;
• Use of EziTracker on the employees’ private mobile phones for timekeeping and safety; and
• Use of the employees’ personal cars to travel to client sites when working with individuals.
[185] As such, the Council submits that the main difference is the combination of working between the centre and the clients’ homes, but that the essential inherent requirements of the role remain the same.
[186] The Council relies on Ms Harrison’s evidence demonstrating why and how the proposed positions affords greater job security and is entirely consistent with the Council’s commitments and obligations under the Agreement by:
• Enabling the employees to demonstrate their flexibility by performing their same role in another environment every alternate week;
• Giving the Council additional flexibility in how staff members are rostered; and
• Enabling employees to identify clients who would benefit from the SSG in which they are not currently participating, and providing an opportunity to enrol those clients into the SSG.
Level of Work
[187] The Council refutes the ASU’s submission that the SSG employees have been required to do menial tasks since 5 June 2019, relying on evidence from Ms Harrison that they have taken sick and annual leave on days when asked to work in the office and evidence from Mr Seddon about the few occasions he performed office work. 97
[188] It asserts that notwithstanding the SSG employees’ apparent dislike of administrative work, the proposed work is expected to provide “less time spent in the office undertaking administrative tasks, and more time spent with clients…” 98
[189] The Council submits that the level of work performed by the SSG employees will not change and refutes the ASU’s submission that the SSG employees will be performing Band 2 work. The Council asserts it does not intend to have Band 3 employees providing the same service that Band 2 staff already undertake 99 and says that the objective is for the Band 3 staff to enhance the service and work with the clients to create a care plan of activities that are in line with reablement principles. It submits this reflects the activities they currently undertake with SSG clients.
[190] The Council submits that the new position description requires the SSG employees to undertake the same role as previously undertaken, with the only relevant difference being the mix of where these duties and responsibilities will be performed.
In-home visits and activities
[191] The Council refers to the activities contained within Ms Harrison’s Supplementary Witness Statement 100 (summarised above at paragraph [124]) and argues each of the ASU’s witnesses, except for Mr Seddon, conceded in one manner or another that the activities currently undertaken at SSG could be replicated in an individual setting.
[192] The Council submits the evidence overwhelmingly demonstrates that the actual work undertaken in an individual setting would be virtually identical to that undertaken in the group environment, with the setting being the only material point of difference. In particular, the Council submits that the position objectives and key duties and responsibilities would remain the same.
Use of Cars
[193] The Council submits that the use of cars does not constitute a change to the SSG employees’ roles and further says that the use of cars merely assists in facilitating the provision of the service as a “tool of trade”. 101
[194] It submits Ms Harrison’s evidence establishes that the personal car use would be limited to when the employees undertook individual work, 102 on which occasions they would receive an allowance of $1 per kilometre. The Council says that in undertaking the SSG activities, the employees would still be required to utilise the Council’s buses.
[195] The Council challenges the ASU’s submission that the employees would be required to purchase comprehensive car insurance if they did not already have it, on the basis that the Agreement provides the entitlement for an employee holding comprehensive insurance cover to be paid excess of up to $1000 if she or he has an accident during work hours.
Use of phones
[196] The Council submits that the use of EziTracker on the SSG employees’ mobile phones does not constitute a change to their role as the app merely facilitates their remote work. It asserts that the app is a mechanism for monitoring attendance and for ensuring that clients are billed appropriately.
[197] Moreover, the Council relies on Ms Harrison’s evidence under cross-examination that most employees “… use their phone anyway when they’re in the group” and that the only difference is that “they will get paid for it now”. 103
Days and Hours of Work
[198] The Council relies on the wording of Clause 10.4.2 of Part D of the Agreement, which states:
“Fair and equitable rosters will be developed to maximise efficiencies and take into account individual client needs and those of the employees and the CoGB. Subject to a fair and equitable roster, employee shall not unduly refuse rostered hours.”
[199] The Council submits that the hours and days of work for which the SSG employees will be working in the SSG will not be altered, but for the week in which they will work in SSI, their hours will be slightly modified to accommodate client availability and needs. On this basis, the Council asserts that these minor changes accord with Clause 10.4.2 in maximising efficiencies.
Relevant Principles
[200] The Full Bench of the Commission in AMWU v Berri Pty Limited (Berri) 104 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.”
[201] Further, the Full Bench of the Commission in United Firefighters Union of Australia v Emergency Services Telecommunications Authority T/A ESTA, 105 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.”
Consideration
[202] 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.
[203] Clause 18 of the Agreement provides the process for resolution of issues, grievances, disputes or claims arising in relation to the matters in the Agreement or the National Employment Standards (NES).
[204] Clause 4 of the Agreement provides:
“4. Objectives of the Agreement
The objectives of this Agreement are to provide:
4.1 Reasonable pay increases comparable to other organisations within the sector.
4.2 Leave and flexible working arrangements to assist employees to manage their work/life balance and family obligations.
4.3 Means of dealing with changes impacting on employment security and tenure of employees.”
[205] Clause 16 of the Agreement provides:
“16. Redundancy
16.1 A redundancy occurs when the CoGB has made a definite decision that the position an employee is performing is no longer required to be performed by the employee. For clarity:
16.1.1 The CoGB will engage in discussions with an employee who may be affected by such a decision before a definite decision is made without effecting a redundancy of the employee’s position; and
16.1.2 A redundancy does not occur until the CoGB has informed the employee affected in writing that the position is redundant.
16.2 After a definite decision had been made by the CoGB that an employee’s position is redundant sub clauses 17.3.1 and 17.3.2 (including 14.4) will apply before the employee is entitled to the retrenchment package under sub clauses 16.3.1 to 16.3.6
16.3 An employee whose position has been made redundant, and who is to be retrenched shall be entitled to the following on retrenchment:
16.3.1 Pay in lieu of notice as follows:
Period of Notice | Period of Notice |
1 year or less | 1 week |
up to completion of 3 years | 2 weeks |
3 years and up to completion of 5 years | 3 weeks |
5 years and over | 4 weeks |
Employees over 45 years of age | 1 week additional notice. |
16.3.2 Severance pay calculated on the basis of two (2) weeks’ pay for each completed year of service to a maximum of 50 weeks.
16.3.3 Lump sum payment of $6,000, which includes all allowances previously identified as lump sum payment, transitional employment allowance and training allowance.
16.3.4 Payment for loss of motor vehicle usage as follows:
a) Where a motor vehicle is considered part of an employee's remuneration package, no payment shall be made, but the value of the motor vehicle in accordance with the remuneration package agreement shall form part of the employee’s "rate of pay" for the purposes of determining the payment to be made pursuant to Clause 16.3.2 above;
b) Where a motor vehicle is provided in circumstances other than those specified above, the weekly value of the vehicle for the purposes of severance payment shall be determined by dividing the employee’s Remuneration Package Vehicle Value (as amended from time to time) by 52 and adding that payment to an employee's weekly rate of pay for the purposes of determining the payment to be made pursuant to Clause 16.3.2 above.
16.3.5 If an employee has more than three (3) years’ service at the date of retrenchment and is not entitled to pro-rata long service leave in accordance with the Local Government Act 1989 the relevant regulations, an ex-gratia payment equivalent to pro-rata long service leave shall be paid.
16.3.6 All entitlements will be paid on a pro-rata basis for part time employees.”
[206] Clause 14 of the Agreement provides:
“14. Employment Security
14.1 Although some roles, tasks and functions of employees may change, continuous employment will remain an objective of all parties.
14.2 The parties to this Agreement are committed to co-operating positively to increase the efficiency, productivity and competitiveness of the Greater Bendigo City Council and to enhance the training, career opportunities and continued employment of employees.
14.3 Where changes to work, service provision and programs occur, the opening up of career paths, retraining and redeployment will be the primary strategies used to ensure employment security. Counseling will be available as part of the transition process to enhance continued employment prospects.
14.4 Where an employee is redeployed by mutual agreement to a lesser position, former salary and conditions will be maintained for a period of twelve (12) months. The new conditions and salary will then be effective from the 1st pay period after the expiration of the twelve (12) month period.
14.5 Where changes through winning of external contracts, corporatisation, management buy-outs, partnerships or any co-operative arrangements with other parties occur all efforts will be made to ensure the continued employment of individuals.”
[207] Part D of the Agreement sets out the specific conditions of employment for various categories of employees of the Council. In particular, clause 10 of Part D sets out the specific conditions of employment for the Planned Activity Group and relevantly provides as follows in relation to hours of work:
“10.4 Hours of Work
10.4.1 Ordinary Hours
All ordinary hours of work shall be worked between 7.00am and 7.00pm, Monday to Friday inclusive unless by arrangement between the employee and CoGB and where exceptional circumstances exist, the ordinary hours of work may be extended by agreement beyond the hours of 7.00 a.m. to 7.00 p.m., Monday to Friday.
10.4.2 Rosters
Fair and equitable rosters will be developed to maximise efficiencies and take into account individual client needs and those of the employees and the CoGB. Subject to a fair and equitable roster, employees shall not unduly refuse rostered hours.
10.4.3 Agreed hours of work
e) The agreed number of hours will be the total number of hours set by the fortnightly roster and may vary from fortnight to fortnight according to client demand.
f) In order to maintain flexibility in meeting the needs of clients and employees, rosters may be changed from day to day.
d) Any hours in excess of agreed hours but within the normal spread of hours and up to 7.6 hours per day will be paid at single time at the specific hourly rate of pay for that level of work activity.
10.4.4 Additional Hours of Work
a) Employees may be offered additional hours of work in excess of their weekly agreed hours.
b) When an employee accepts additional hours of work, any change in the rostered hours will be regarded as an agreed variation.
c) There is no obligation or requirement for employees to accept additional hours offered.
10.4.5 Agreed Hours
It is agreed between the parties that the hours worked, as recorded in the roster and signed (off) by the employee, shall constitute the agreed (ordinary) hours for the purpose of Part B.”
[208] It is not in contest that the SSG has undergone a number of operational changes over the past 10-15 years. The parties have attributed these to a range of factors. To answer the question as to whether a redundancy has occurred in this particular case, it is necessary to look to whether the Council has made a definite decision that the position these employees are performing are no longer required to be performed by these employees. The way in which the parties have framed this question has been to ask:
“Would the changes proposed by the Council to staff members employed in its Social Support Group result in a redundancy of their positions as contemplated by clause 16.1 of the Agreement?”
[209] The ASU submits that the changes proposed are sufficiently significant to demonstrate that the position the SSG employees were engaged for will no longer be performed by the SSG employees or anyone else in Clause 16.1. It submits that the changes can be broken into the following categories:
• Administrative and office tasks;
• In-home visits;
• Use of cars;
• Use of phones;
• Days and hours of work; and
• Level of work.
[210] The Council submits that it still requires the positions performed by the SSG employees to be performed by them, the new position description requires the SSG employees to undertake the same role as previously undertaken and that the only difference is the location of the performance on alternate weeks.
[211] It needs to be borne in mind that the changes proposed giving rise to this dispute do not bring an end to the group work carried out by the SSG employees, who will continue to perform work in the SSG setting every other week. Further, both the existing and proposed (new) position descriptions have the objective of planning and delivering activities that will support and assist “frail aged people” to maintain their independence, keep them socially connected and maintain and enhance their physical, emotional and social wellbeing.
[212] While the SSG employees would be required to conduct in-home visits every other week, I note that performing this function appears not to be inconsistent with the CHSP guidelines, which cover both SSG and SSI activities. Under the guidelines, both have the objective of assisting “frail older people to participate in community life and feel socially included.” While not all activities conducted in a group setting will be able to be precisely mirrored in a home setting with an individual, it can be concluded that many of them could be offered in a modified manner. I further note that one-on-one work occurs in both the SSG and SSI environments, albeit in differing ways.
[213] The evidence establishes to my satisfaction that the Council wants to offer an enhanced SSI service by engaging the Band 3 SSG employees and making it more activity-based. Whereas the Council’s Band 2 home support workers have to date offered a respite-like and welfare check service, they do not conduct any planning or goal setting with clients. The proposal is to have what is done by the Band 3 SSG workers, in terms of care planning and goal setting in the SSG environment, replicated in the SSI work in order to assist those clients in building their capacity to be integrated into the SSG program and/or perhaps re-abling them to join. I am satisfied that there is no substantial difference between the planning and goal setting that could be undertaken in a group setting compared with an individual setting. The needs of an individual must be considered in both settings. I am also satisfied that the work it is proposed the SSG employees undertake in the SSI setting is different to that which has been performed by Band 2 employees, and note that they will continue to be classified and paid as Band 3 employees.
[214] As to the proposed rosters, the total hours of the SSG employees are maintained and the stated intention of the Council is to ensure that the SSG employees maintain their current quantum of hours and remuneration. The proposed days of work are different and there is a further change when it comes to the SSI week of work, in that the proposal outlines that the SSG employees would be required to work some of their hours on an additional day. The net effect would be the full time SSG employees would be required to attend work on nine days per fortnight instead of eight and the part time employee on five days per fortnight instead of four. The significance of these proposed changes is a matter I will return to.
[215] I do not consider anything turns on the extent to which administrative and office tasks might be required because the evidence suggests it will be minimal and perhaps even less than what might have been required over the past twelve months. 106 As regards home safety checks, it is apparent that the SSG employees have not previously been required to perform them but the available evidence as to what home safety checks might entail107 leads me to conclude that they would be a task that is within their capability, having received an appropriate induction.
[216] The evidence does not persuade me that the requirements for car use represent much of a change at all. Obviously there will be different driving duties involved during the week in which SSI work is being performed but I note there will be a per kilometre allowance payable and the capacity to claim an excess payment from Council, provided comprehensive insurance is maintained and that this is a pre-existing entitlement in the Agreement. I do not consider that the projected distances an SSG employee might be required to travel as part of the SSI work to be excessive.
[217] I am not persuaded on the basis of the material before me that the changes proposed by the Council to the SSG employees are such that it no longer requires the positions they have been performing to be performed. No doubt, for example, the setting in which the SSG employees are to carry out their duties every second week is to change. However, the Council has not proposed these changes with a view to making the SSG employees redundant. The language of the Agreement, and in particular the objective of providing a means of dealing with changes impacting on employment security and tenure of employees in Clause 4, together with the commitment of the parties to the Agreement to employment security and continuous employment in Clause 14, provides context.
[218] Further context in relation to the changes to the hours of work is provided by Clause 10.4 of Part D of the Agreement. In particular, Clause 10.4.2 contemplates the development of fair and equitable rosters to maximise efficiencies and take into account individual client needs, together with those of the Council and its employees. Clause 10.4.3 notes that rosters may vary according to client demand and may be changed to maintain flexibility in meeting the needs of clients and Council employees. I acknowledge that the proposed hours of work would have an impact on the SSG employees but equally, the Agreement contemplates that circumstances, such as the ones lying behind this dispute, may give rise to roster changes. Ultimately, it is noteworthy that the rosters exchanged were “proposed rosters” and the evidence suggests that the Council is open to further discussion regarding them. 108
Conclusion
[219] The task the parties have asked me to discharge is one of interpreting the Agreement they have produced. In this matter, I have not been persuaded that the changes proposed by the Council to staff members employed in the SSG result in a redundancy of their positions as contemplated by Clause 16.1 of the Agreement.
[220] The answers to the questions that the parties asked me to determine in order to resolve the dispute are therefore as follows:
“1. Would the changes proposed by Greater Bendigo City Council (Council) to staff members employed in its Social Support Group (“relevant employees”), result in a redundancy of their positions as contemplated by clause 16.1 of the Greater Bendigo City Council Enterprise Agreement 2017 (“Enterprise Agreement”)?”
Answer: No
“2. If “Yes” to Question 1, then:
(a) Does/do clause/s 14 and/or 16 of the Enterprise Agreement require the relevant employees to accept a reasonable offer of redeployment made by the Council?
(b) If “Yes” to (a), then has the Council made such reasonable offer of redeployment?
(c) If “Yes” to (b), are relevant employees entitled to reject the offer and receive the benefits set out in clause 16.3 of the Enterprise Agreement?”
Answer: Not necessary to answer
DEPUTY PRESIDENT
Appearances:
Ms D Predic for the ASU.
Mr G Katz, solicitor, for Greater Bendigo City Council.
Hearing details:
2020.
Melbourne (via video):
April 17.
Final written submissions:
The Australian Municipal, Administrative, Clerical and Services Union, 29 April 2020.
Greater Bendigo City Council, 29 April 2020.
Printed by authority of the Commonwealth Government Printer
<PR720429>
1 Transcript at PN197.
2 Transcript at PN214 and PN219.
3 Transcript at PN214.
4 Transcript at PN215.
5 Transcript at PN227.
6 Transcript at PN231.
7 Transcript at PN243-PN245.
8 Transcript at PN266.
9 Transcript at PN252.
10 Transcript at PN254.
11 Transcript at PN269.
12 Transcript PN285.
13 Transcript at PN272-PN282.
14 Transcript at PN406.
15 Transcript at PN117-PN119.
16 Transcript at PN114.
17 Transcript at PN115.
18 Transcript at PN116.
19 Exhibit R2 at page 2.
20 Transcript at PN131.
21 Transcript at PN233-PN234.
22 Transcript at PN235.
23 Transcript at PN236 and PN238.
24 Transcript at PN239.
25 Transcript at PN242.
26 Transcript at PN241.
27 Transcript at PN536.
28 Transcript at PN540-PN542.
29 Transcript at PN538.
30 Transcript at PN453.
31 Transcript at PN566.
32 Transcript at PN569.
33 Transcript at PN574.
34 Transcript at PN573.
35 Transcript at PN575.
36 Transcript at PN490-PN495.
37 Transcript at PN441.
38 Transcript at PN442.
39 Transcript at PN590.
40 Transcript at PN500-PN518.
41 Transcript at PN519-PN520.
42 Transcript at PN482.
43 Transcript at PN484.
44 Transcript at PN486.
45 Transcript at PN549.
46 Transcript at PN552-PN553.
47 Transcript at PN554-PN556.
48 Transcript at PN621.
49 Transcript at PN642.
50 Transcript at PN646.
51 Transcript at PN651.
52 Transcript at PN690-PN691.
53 Transcript at PN704-PN716.
54 Transcript at PN747.
55 Transcript at PN749-PN750.
56 Transcript at PN756.
57 Transcript at PN759.
58 Transcript at PN860.
59 Transcript at PN862.
60 Transcript at PN826.
61 Transcript at PN827.
62 As corrected at the hearing, see Transcript PN792.
63 Corrected to 10 January 2020 at the hearing, see Transcript PN792.
64 Transcript at PN863.
65 Transcript at PN881.
66 Transcript at PN840.
67 Transcript at PN841.
68 Transcript at PN885.
69 Transcript at PN886-PN889.
70 Transcript at PN866.
71 Transcript at PN868.
72 Transcript at PN875.
73 Transcript at PN869-PN871.
74 Transcript at PN872.
75 Transcript at PN874.
76 Transcript at PN845.
77 Transcript at PN837.
78 Transcript at PN912.
79 Transcript at PN913.
80 Transcript at PN914.
81 Transcript at PN915.
82 Transcript at PN918.
83 Transcript at PN919.
84 Transcript at PN921.
85 Transcript at PN931.
86 Transcript at PN922.
87 Transcript at PN923.
88 Transcript at PN924.
89 Transcript at PN925.
90 Transcript at PN839-PN840.
91 Transcript at PN554-PN555.
92 Mr Seddon (Transcript at PN114-PN115), Ms Pollock (Transcript at PN441-PN442 and PN560), Ms Davis (Transcript at PN630-PN631) and Ms Hartland (Transcript at PN690-PN691 and PN751).
93 Mr Seddon (Transcript at PN239-PN242), Ms Pollock (Transcript at PN569), Ms Davis (Transcript at PN641-PN642)
94 Transcript at PN549.
95 Transcript at PN927.
96 [2017] FCA 1519.
97 Transcript at PN250.
98 Exhibit R1 at para 49.3.
99 Exhibit R2 at para 2.
100 Exhibit R2.
101 Transcript at PN923.
102 Transcript at PN870.
103 Transcript at PN875.
104 [2017] FWCFB 3005.
105 [2017] FWCFB 4537.
106 Transcript at PN 845 and Exhibit R1 at para 49.3.
107 Transcript PN 575.
108 Transcript PN 872.
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