Australian Municipal, Administrative, Clerical and Services Union v Western Water

[2013] FWC 6060

[2013] FWC 6060

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Australian Municipal, Administrative, Clerical and Services Union
v
Western Water
(C2013/4422)

COMMISSIONER GREGORY MELBOURNE, 13 NOVEMBER 2013

Alleged dispute in relation to a request for a flexible working arrangement.

Introduction

[1] Mr Gary Lewis has worked for Western Water for 23 years. He is currently employed as an IT administrator. In late 2011 he first requested a change to his current working arrangements. He wants to continue to work the same number of hours, but to do so in 4 days each week, from Monday to Thursday, instead of the 5 days each week he now works.

[2] That request has been refused by Western Water.

[3] The parties are covered by the Western Water Enterprise Agreement 2011 1. Hours of work are dealt with in clause 4 of the Agreement. Sub clause 4.1(b) “Compressed working options,” states:

“Alternate compressed work hour arrangements covering a 38 hour week may be negotiated with Employees individually through the flexibility clause 7.5 in the Agreement, to provide greater flexibility for personal, family and lifestyle commitments of individual Employees whilst balancing the operational needs of Western Water.” 2

[4] The individual flexibility provisions are set out in sub clause 7.5 of the Agreement under the heading “Flexibility in the Workplace.” They enable an Individual Flexibility Agreement (IFA) to be entered into to vary the effect of several provisions in the Agreement, including those contained in clause 4.1.

The Issue to be Decided

[5] Given the provisions contained in sub clause 4.l(b) of the Agreement is Western Water entitled, in all the circumstances, to refuse Mr Lewis' request to move to a compressed working hours option?

The Evidence and Submissions

[6] As indicated, Gary Lewis has been employed by Western Water for 27 years. He has made a request for a flexible working arrangement in the form of compressed working hours to allow him to work the same hours he currently works, but in four days instead of five.

[7] Mr Lewis has made the request primarily to assist in caring for his elderly mother and mother-in-law, however, for other reasons as well. His submissions set out the totality of those reasons. They are described in the following terms -

• caring for his elderly mother and mother-in-law takes a significant amount of his and his family's personal time;



• these caring duties and the time involved place significant emotional strain on his personal and family life;



• this would be substantially alleviated by the compressed working arrangement he has requested;



• he would be better able to participate in social activities;



• he would be better able to maintain an exercise regime;



• he would be better able to spend time on his hobbies such as photography and writing;



• he would be better able to provide his mother and his mother-in-law with social interaction; and



• he would be better able to maintain his own home and property.

[8] Mr Lewis also points to the following circumstances involving his current working arrangements. He submits in his role as an IT administrator he works autonomously and with a significant degree of independence. He has duties that can generally be planned in advance and he rarely deals with urgent matters that require immediate attention. In addition, he already works a 19 day month, meaning that in one week in four he is already working a four day working week.

[9] His submissions also point to various provisions in the Agreement in support of his request. Firstly, to the headnote of Part 7 of the Agreement entitled “Work/Life Balance”, which deals with various measures under this broad heading. The headnote states the intent is, “To ensure Employees balance their work and personal commitments to their satisfaction.” He also refers to the express terms of clause 4.1(b) which point to the need for a balancing of the benefits to the employee and the operational needs of Western Water. He submits that if strictly applied the sub clause would enable the employer to refuse all requests which did not provide it with an operational benefit, meaning any benefit or advantage for employees from the provision would be “illusory.”

[10] Mr Lewis submits the refusal of his request demonstrates Western Water has:

• failed to have due regard for the values expressed in the Agreement and its intended spirit and intent; and



• has failed to have due regard to the benefits to be gained by Mr Lewis.

[11] He also submits any suggestion he is required to be in the workplace every day is misconceived and refutes the suggestion his absence on one day each week would adversely impact on the operational needs of Western Water. Mr Lewis highlights the following points in this context.

• He works a 19 day month and so is already absent from the workplace on one day in every 4 weeks. His position is not backfilled on these days and the only occasions when it has been filled are when he has been absent on extended periods of annual leave of more than a week.



• He regularly accesses other leave entitlements. Since 2009/2010 he has had a total of 151 days away from work on various forms of leave and, in his submission, these absences have caused only minimal disruption. He is able to plan his work around these absences and, in his view, there has never been an issue another team member couldn't resolve in a relatively short space of time, or that couldn’t wait until his return to work.



• On the days when he is absent only a limited range of additional obligations are placed on other employees. These do not cause any detriment to Western Water and, if necessary, he can be contacted by mobile phone if an urgent matter arises. His evidence suggests this has only occurred on 3 or 4 occasions.

[12] In summary, it is submitted the request by Mr Lewis falls squarely within the option for changed work arrangements contemplated by sub clause 4.1(b) of the Enterprise Agreement. He also submits Western Water has placed too much weight on the words in the sub clause “whilst balancing the operational needs of Western Water” but, in any case, if his request were granted “any inconvenience visited upon WW would be trivial.” 3

[13] Western Water submits that in accordance with the natural and ordinary meaning of the words an IFA for compressed hours can only be approved in circumstances that are “mutually beneficial to the employee and the employer.” 4 In addition, any request needs to be reviewed and considered in light of the “operational needs of Western Water.”5 Accordingly, any request which adversely impacts on its operational requirements, or is not mutually beneficial, ought not be approved.

[14] Western Water submits Mr Lewis' request was refused on reasonable business grounds based on its operational requirements. It highlights, in particular, factors including:

• his role as an IT administrator requires attendance on each working day;



• the needs of the Customer and Community Relations area that he services means Western Water would need to backfill his position on the day he was absent. Based on the evidence of Mr David Anderson, General Manager Corporate Services, this additional cost per annum would be in excess of $14,000; and



• approval of his request would increase costs for Western Water without providing any benefit in terms of increased productivity or quality of service.

[15] Western Water submits, in conclusion, a significant cost would be imposed on it if Mr Lewis' request was approved, and this outcome is clearly not "mutually beneficial" as required by sub clause 7.5 of the Agreement.

[16] The submissions and evidence of Western Water are also at odds with those of Mr Lewis in terms of the impact of his absence. Western Water submits the Business Information team Mr Lewis is part of is already “tightly pressed,” 6 and if his request was approved it would be required to engage a replacement employee on the day each week when he is absent. It submits the team leader, Mr Robert Duoba, already covers for Mr Lewis on days when he is absent, and significant overtime costs have been incurred as a consequence.

[17] Mr Lewis' role has also been made more significant in its submission by the “smooth billing process” 7 that now applies at Western Water, whereby bills are sent out almost daily, rather than at longer intervals, as was the case previously. It also points to proposed changes to be implemented in the near future, which will impose an additional workload on the Business Information team.

[18] Western Water also rejects the submission the option provided in sub clause 4.1 is “illusory” and points to another employee who has recently been allowed to move to a compressed hours arrangement. It also questions whether the reasons given by Mr Lewis in support of his request are sufficient to warrant it being granted but, in any case, submits:

“...WW properly took into account the operational needs of the business, and the impact that the request would have on WW, in coming to its decision to refuse Mr Lewis' request, which it is entitled to do in accordance with the ordinary and natural meaning of the relevant clauses.” 8

It also rejects the submission any inconvenience in granting the request would be "trivial" and instead, in its submission, there would be a significant detrimental impact on the organisation.

Consideration

[19] There is little dispute between the parties as to the principles to be applied to the interpretation of industrial instruments, and the authorities in this regard are well known and well established. Mr Lewis’ submissions referred to the decision in Australian Workers’ Union v Visy Board Pty Ltd T/A Visy Specialities 9, which held that where the terms of an industrial instrument are clear and unambiguous then it should be interpreted in accordance with that clear and unambiguous meaning. Western Water also made reference to the decision in Clothing Trades Award10 in support of its submission that in seeking to interpret an enterprise agreement regard must first be had to the natural and ordinary meaning of its words.

[20] The decision of Madgwick J. in Kucks v CSR Limited 11 has also been referred to often in this context. It dealt particularly with the interpretation of an award provision. Madgwick J. stated:

“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.

But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.” 12

[21] Whilst made in the context of an award the approach in that decision has been adopted in relation to the construction of industrial agreements. In City of Wanneroo v Holmes 13 French J. observed that in interpreting industrial instruments “fractured and illogical prose may be met by a generous and liberal approach to construction,” and the starting point should be a consideration of the natural and ordinary meaning of the words used.14 I have adopted the approach of these authorities, and those cited by the parties, in considering the terms of the Agreement that are relevant to the determination of this matter.

[22] I am satisfied that the words in sub clause 4.1(b) are clear and unambiguous, and should be interpreted in accordance with that clear and unambiguous meaning. There are several key provisions. Firstly, compressed hours arrangements “may be negotiated.” This indicates there is no mandatory entitlement to move to an arrangement of this kind, but an ability instead for the employer and employee to be able to enter into negotiations about implementing any such change. Secondly, the individual flexibility arrangement provided for in sub clause 7.5(a) provides the mechanism for any agreement to be put in place. That sub clause sets out a range of requirements; the IFA must be genuinely agreed to by the employee and Western Water; it must indicate the terms of the agreement the parties have agreed to vary; and it is able to be terminated by either party giving a period of notice of 28 days, or otherwise by mutual agreement at any time.

[23] Finally, sub clause 4.1(b) indicates the intention of any compressed working hours arrangement is, on the one hand, to provide greater flexibility in response to the personal, family and lifestyle commitments of the individual employee and, on the other, to balance the operational needs of Western Water. Clearly, it is intended any such negotiated arrangement must take account of both the employee’s requirements and the operational needs of Western Water. I am satisfied that in terms of the issue of “balance” it is not intended that there must be absolutely no detriment to Western Water in order for any request by an employee to be granted. As Mr Lewis’ submissions indicated if that were to be the case it would be almost impossible for any request by an employee to be granted. However, “... balancing the operational needs of Western Water” clearly requires that those needs be taken into account and any employee request evaluated in that context.

[24] I have a significant degree of sympathy for the position of Mr Lewis. His rationale for seeking change to his existing working arrangements appears to fit squarely within the circumstances contemplated by sub clause 4.1(b). His evidence indicates his request is based, in particular, upon his desire to be better able to support his elderly and ailing mother and mother-in-law. These appear to be laudable and entirely legitimate reasons why an employee might seek to vary his/her existing working arrangements in accordance with sub clause 4.1(b). The fact those reasons also extend to a desire on Mr Lewis' part to be better able to pursue his own interests in his own time do not diminish the validity of his request, as they also appear to fit squarely within the circumstances contemplated by the sub clause.

[25] It is also apparent Mr Lewis is not just another employee at Western Water. He is a long-standing employee with 23 years service. He has been in his current role for 15 years. He appears to have an impeccable employment record with his most recent annual performance review confirming his manager's support and endorsement of his performance and capability. It is also clear from the evidence that his role at Western Water is both important and valued. For example, the evidence of Ms Penny Dent, Chief Information Officer at Western Water, who manages the team Mr Lewis is a part of indicates:

“Mr Lewis will be a key player in determining and work shopping the requirements for these new projects and is aware that he will have specific responsibilities in line with these new projects. Further, Mr Lewis’ current role is necessary to be done every day as billing is a revenue source which is an integral part of the organisation. In fact, bill is the most critical function that WW performs and it is not to be taken lightly.” 15

[26] She also states:

“Mr Lewis maintains one of WW’s core/critical systems that performs the billing function. The billing function is the key source of revenue for WW and due to the criticality if there are any major problems with this system it may also affect WW’s brand and reputation by potentially putting WW and our failed system into the social media, newspapers etc.” 16

[27] The evidence of Mr David Anderson, General Manager Corporate Services, also makes reference to the importance of the role Mr Lewis occupies. In this context it appears Mr Lewis is to some extent a victim of his own importance, or of the indispensable nature of the role he occupies, making it is more difficult for Western Water to respond to his request, given the impact upon its operational requirements.

[28] It also appears from the submissions and evidence of Western Water that its decision to refuse the request is not based solely on consideration of Mr Lewis’ personal situation and his role at Western Water. I refer again, for example, to the evidence of Mr David Anderson, General Manager Corporate Services, when he states:

“I also believe that if WW granted compressed hours to Mr Lewis then this would have a flow-on effect throughout the organisation and that other employees would subsequently lodge applications for compressed hours each week (returning then to a 4 day week or 9 day fortnight which WW deliberately removed) which WW would be obliged to grant on the basis of having established a very low threshold in the case of Mr Lewis.” 17

If this is the case it is unfortunate if proper consideration of a request by an employee, particularly one of such long-standing, has been influenced by considerations and concerns that extend beyond his personal circumstances and his role at Western Water.

[29] However, clearly any consideration of Mr Lewis' request must have regard to “balancing the operational needs of Western Water” as sub clause 4.1(b) requires. Senior employees of Western Water have given evidence about this impact. I have already made reference to the evidence of Mr Anderson. He also stated:

“If the request was approved, there would be a cost imposed on WW as the IT administrator position would need to be backfilled which would effectively create an additional permanent 0.2 FTE position to ensure that WW could continue to meet the needs of the Customer and Community Relations area. There would be a significant detrimental impact to the organisation if Mr Lewis was to work full-time hours in a 4 day week. WW would be required to hire an employee, on a part time basis at 0.2 FTE at a Band 6. The cost for this annually would be $14,000.00.” 18

He continued to indicate that on costs would act to inflate this figure and impose a “real cost” upon WW.

[30] The evidence of Ms Penny Dent, Chief Information Officer with Western Water, has also been referred to previously. She supports the position of Mr Anderson, referred to above, and also stated:

“Approval of his request would increase costs for WW without increasing productivity or quality of service. There would be a loss in productivity for WW due to handing over duties to someone one day a week, there will be a constant overlap, training and handovers which WW would be required to pay for.” 19

She also spoke about the “critical functions” Mr Lewis performs within the organisation and the important ongoing role he also has in “work shopping” various requirements for new billing projects that are to be introduced over the next few months.

[31] In the context of this evidence it is also noted that Mr Lewis’ immediate supervisor, Mr Robert Douba, was not called to give evidence despite his presumed ability to provide relevant evidence about the competing issues.

[32] I have already indicated some sympathy for Mr Lewis. The issues he is dealing with in his personal life; his long and unblemished service; the fact he appears to be a victim of his value and importance to Western Water; and the fact the decision to reject his request appears to be influenced by broader concerns than just those involving him, are all relevant in this context. It is to be hoped further consideration might still enable a mutually agreed position to be reached that is acceptable to both parties. Mr Lewis has indicated he only intends to continue to work for a limited period before he retires from the workforce and there might well be much to be gained in having another employee(s) trained in and understanding of the role and duties he performs, together with some understanding of the corporate knowledge he has gained over a long period of service. It is also noted that if any change to Mr Lewis' work arrangements was agreed to and implemented through an IFA any such agreement could be terminated at the initiative of either party by giving 28 days notice. This would seem to provide some safeguard for either party if an arrangement entered into was subsequently not operating as intended. However, it is not my role to be providing advice to Western Water about how to structure its business operations.

[33] My role is instead to determine this matter, based on sub clause 4.1(b) of the Agreement. I have already noted that the emphasis in the sub clause is upon outcomes reached through mutually agreed negotiation. However, there is presumably a role for arbitration when a negotiated agreement cannot be reached, and certainly no party in the present matter has objected to the Tribunal's role in arbitrating in response to the rejected request.

[34] Again, as already indicated the sub clause requires that regard be had to balancing competing considerations. As indicated previously, I am satisfied this question of balance does not mean there must be absolutely no detriment to Western Water in order for a request by an employee to be granted. However, “...balancing the operational needs of Western Water” clearly requires those needs be taken into account and any employee request evaluated in that context.

[35] In the present matter I am confronted by evidence from the Chief Information Officer and the General Manager, Corporate Services which states that if Mr Lewis' request is granted, and he is absent on one day each week, then that gap will have to be filled by a replacement employee. Mr Lewis submits this will not be necessary for all the reasons set out previously. However, the Managers who are responsible for the management of the Business Information Team that Mr Lewis is part of have given sworn evidence as to what will be required if the request is granted. I have no reason to doubt the veracity of that evidence, despite the fact it does appear to be motivated in part by a concern that granting the request may create a precedent for others. Nor do I consider that my role is to "second-guess" the management decisions of senior Managers at Western Water.

[36] Given that evidence I am satisfied that a requirement to cover the absence of Mr Lewis on one day each week, if his request were granted, would involve a significant cost to Western Water. That cost has been estimated to be in excess of $15,000 per annum. Notwithstanding the benefits that would obviously be derived by Mr Lewis if he were able to move to a compressed hours working arrangement I am satisfied, taking into account the operational needs of Western Water, that it is not appropriate in all the circumstances to direct Western Water to grant Mr Lewis' request. The application is accordingly dismissed.

Appearances:

S Shepherd of the Australian Municipal, Administrative, Clerical and Services Union on behalf of the Applicant.

G Katz of Meerkin & Apel on behalf of the Respondent

Hearing details:

2013.

Melbourne:

20 August.

 1   AE892606

 2   Ibid at cl.4.1(b)

 3   Applicant Outline of Submissions at para 31(d)(v)

 4   AE892606 at cl.7.5

 5   Ibid at cl.4.1(b)

 6   Exhibit K1 at para 13(b)

 7   Respondent Outline of Submissions cl.35(h)

 8   Ibid at Para 54

 9   PR963418

 10 (1950) 68 CAR 597

 11 (1996) 66 IR 182

 12   Ibid at page 184.

 13 (2006) 153 IR 426

 14 [1989] FCA 369 at 47

 15   Exhibit K1 at para 13(g)

 16   Ibid at para 23

 17   Exhibit K2 at para 26

 18   Ibid at para 10(c)

 19   Exhibit K1 at para 9(e)

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