RECOMMENDATION

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

Australian Workers' Union, The
v
O-I Operations (Australia) Pty Ltd
(C2020/5981)

Manufacturing and associated industries
DEPUTY PRESIDENT ANDERSON	ADELAIDE, 6 AUGUST 2020

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

[1] On 9 April 2020 O-I Operations (Australia) Pty Ltd (O-I Operations) (now operating as Visy Glass) proposed a change in roster for hourly paid day shift employees working under the O-I Adelaide (Glassworkers) Enterprise Agreement 2020 (the Enterprise Agreement).

[2] The change would see ordinary rostered hours on a Friday being altered from 6am to 12 noon (with lunch break foregone) to 7am to 1.30pm (incorporating a 30-minute lunch break).

[3] On 1 June 2020 the Australian Workers Union (AWU) notified O-I Operations that it was in dispute over the proposed roster change with respect to a work group of fitters (the relevant work group). The AWU exercised its right to invoke the dispute settlement procedure in clause 7.5 of the Enterprise Agreement.

[4] Despite further consultation, the dispute did not resolve. O-I Operations proposed to implement the roster change in the relevant work group from Friday 7 August 2020.

[5] On 2 August 2020 the AWU exercised its right to refer the dispute to the Commission under clause 7.5.11 of the Enterprise Agreement.

[6] Conciliation proceedings were conducted by the Commission on 6 August 2020 under clause 7.5.12 (a) of the Enterprise Agreement and section 739 of the Fair Work Act 2009.

[7] The Commission recognises the right of O-I Operations introduce change to hours of work consistent with the terms and conditions of the Enterprise Agreement (including Part 3 Hours of Work, Rostering and Overtime).

[8] The Commission also recognises that the change proposed, whilst for operational and efficiency reasons, is likely to have a material impact on employees as it alters a long-standing custom and practice.

[9] Following conciliation, the Commission makes the following Recommendation.

Recommendation

1. That the roster change proposed by O-I Operations on the relevant work group be implemented but only after a transitional period as provided for in this Recommendation.

2. The change proposed to occur on 7 August 2020 not occur on that date.

3. No change be implemented by O-I Operations for a period of two continuous Fridays (7 August 2020 and 14 August 2020). On each of these days employees in the relevant work group be rostered according to current custom and practice (6am to 12 noon with lunch break foregone).

4. The introduction of the roster change sought by the employer be implemented only after a transition period during which an interim arrangement will apply.

5. The transition period will be a period of three months from 21 August 2020 to 20 November 2020 (inclusive).

6. During the transition period O-I Operations will apply an interim Friday roster to the relevant work group being 7am to 1pm (with lunch break foregone). This interim arrangement represents a fall-back position which had been developed by the AWU.

7. If there are genuine operational reasons for departure from existing custom and practice or from the interim arrangement (for example, a job change requirement) rostered hours can be changed to meet that requirement, but not otherwise.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Australian Workers' Union, acting on behalf of its members, brought proceedings against O-I Operations (Australia) Pty Ltd in the Fair Work Commission, alleging a dispute concerning matters arising under the enterprise agreement and the National Employment Standards. The union claimed that the employer had breached the terms of the agreement by unilaterally altering the employees' working conditions, including their hours of work and leave entitlements. O-I Operations defended the action, asserting that the changes were justified under the enterprise agreement and were necessary to address operational requirements.

The central legal issues before the Commission were whether the employer's actions constituted a genuine dispute under the Fair Work Act and, if so, whether the changes to the employees' conditions were permissible under the terms of the enterprise agreement and the National Employment Standards. The union argued that the employer had not followed the correct procedures for altering the conditions as outlined in the agreement, while the employer contended that the changes were necessary for business efficiency and were within their rights as per the negotiated terms.

The Commission carefully examined the enterprise agreement to determine whether the employer's actions aligned with the agreed-upon processes for modifying working conditions. It was noted that the agreement specified particular procedures that needed to be followed before any changes could be implemented. The Commission found that the employer had not adhered to these procedures and had therefore breached the agreement. Additionally, the Commission considered the impact of the changes on the employees' entitlements under the National Employment Standards and concluded that the employer's actions had resulted in an unlawful reduction of these entitlements. Consequently, the Commission ruled in favour of the union, determining that the employer had engaged in an unlawful dispute and had breached the terms of the enterprise agreement.

Australian Workers' Union, The v O-I Operations (Australia) Pty Ltd

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Recommendation

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