Australian Workers' Union, The v The Uniting Church in Australia Property Trust (Q) T/A UnitingCare Health/ the Wesley Hospital
[2022] FWC 3105
•23 NOVEMBER 2022
| [2022] FWC 3105 |
| FAIR WORK COMMISSION |
| RECOMMENDATION |
Fair Work Act 2009
s.739—Dispute resolution
Australian Workers’ Union, The
v
The Uniting Church in Australia Property Trust (Q) T/A UnitingCare Health/ The Wesley Hospital
(C2022/6218)
| COMMISSIONER SIMPSON | BRISBANE, 23 NOVEMBER 2022 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
On 9 September 2022, The Australian Workers’ Union (AWU) lodged an application for the Fair Work Commission (Commission) to deal with a dispute in accordance with the dispute settlement procedure (Application) in the UnitingCare Health Support Services Enterprise Agreement 2016 – 2018 (Agreement). The AWU contends The Uniting Church in Australia Property Trust (Q) T/A UnitingCare Health/ The Wesley Hospital (the Respondent) has not complied with clause 6.5.1 of the Agreement. The Application sought the following relief:
An interim order that until such time as the subject matter of this dispute is resolved, that work continue in accordance with clauses 3.6.6 and 6.5.1 of the Agreement (that is, that work will be undertaken in accordance with the currently in place and agreed roster).
An order that the Respondent is not permitted to implement the proposed new roster given that a majority of employees of the Food Services Team do not agree to this roster.
Clause 3.6.6 of the Agreement reads as follows:
“3.6.6 While the dispute resolution procedure is being conducted, work must continue in accordance with this Agreement and the Act. Subject to applicable occupational health and safety legislation, an employee must not unreasonably fail to comply with a direction by UCH to perform work, whether at the same or another workplace that is safe and appropriate for the employee to perform.”
Clause 6.5.1 of the Agreement reads as follows:
“6.5.1 Employees will work in accordance with a fortnightly roster to be agreed from time to time between UCH and a majority of employees in any workplace or part thereof.”
On 21 October 2022, a Conference was held between the AWU and the Respondent where the parties were unable to reach agreement on the issue in dispute and both parties agreed that it would assist them to resolve the dispute if the Commission were to issue a Recommendation, in preference to the matter being listed for arbitration. I agreed to issue a Recommendation on the basis that both parties provided further written submissions to assist the Commission in preparing a recommendation. The parties agreed to this approach and Directions were issued for the AWU and the Respondent to file further submissions relating to the application, which were subsequently provided in the weeks following the conference.
Background
The Respondent submitted that the Wesley Hospital is introducing an on-demand, hotel-style room service model that will allow patients to eat what they want, when they want (Room Service Operational Model). This means patients will be able to order meals from a restaurant style menu, via a patient app or by phoning a dedicated call centre, with meals cooked to order and delivered within 45 minutes. The Respondent submitted that it is a change that makes sense, with improved patient satisfaction and nutrition, and reduced food wastage and cost. The change will allow The Wesley Hospital to be competitive in the private hospital market in terms of offering a premium food service.
The Respondent submitted that Tuesday to Friday (inclusive) are often the busiest days for Food Services given the patient activity within The Wesley Hospital. To date, the practise has been to accommodate staff requests and make adjustments for longer term staff who have reduced their working days over time. This has resulted in fewer staff choosing to work during the busier occupancy days which leaves the lower occupancy days and weekend shifts which attract penalties. The Respondent submits that this is inequitable for newer staff that generally work the busier shifts and do not generally work weekend shifts. The Respondent submits that the proposed rotational roster for Customer Service Attendants (CSAs), Stewards and Chefs allows for equitable rostering whereby all staff will have improved longer-term visibility to plan their other commitments outside of work and the opportunity to work shifts that attract penalty rates. Staff will be able to swap shifts like-for-like to meet their individual needs.
Timeline and the Dispute
The AWU says that the Respondent, in implementing the new roster on a trial basis, on and from 19 September 2022, has breached clause 6.5.l of the Agreement.
In its submissions for the purposes of a recommendation, the AWU is seeking the following recommendations:
1. That until such time as the Respondent can demonstrate that a majority of CSA employees agree to the new roster via a ballot, the status quo that existed at the time of lodgement of the dispute application will be maintained; and
2. That the Respondent conduct a ballot of CSA’s who were previously working a predominantly set roster and who are required to work the new roster to determine whether a majority of these employees agree to this roster.
In its submissions the Respondent is seeking the following recommendations:
1. An acknowledgement that the relevant cohort of workers relevant to the Room Service Operational Model and the proposed rotational roster includes CSAs, Stewards and Chefs; and
2. An acknowledgement that the Respondent has complied with clause 6.5.1 of the Enterprise Agreement by obtaining a majority support through consultation and discussions.
The AWU submits that as of 21 October 2022, there are 32 permanent CSA’s working in the Food Services Team on the floor, and approximately 18 casuals performing the same role. The AWU submits that a majority of the affected cohort do not agree to the new roster.
The AWU submitted that it understood the Respondent’s position to be that the new roster affects a broader cohort of employees (“the disputed cohort”) specifically being 105 affected staff, consisting of:
60 CSAs;
25 Stewards; and
20 Chefs.
The timeline
The AWU submitted that on 23 May 2022, Mr Sean Hubbard, General Manager of the Wesley Hospital (the Hospital) wrote to the Food Services employees of the Hospital advising of Organisational Change to the Food Services Team. This same day, Mr Hubbard wrote to Ms Marina Chambers of the AWU notifying of proposed workplace changes to the Food Services Team, including:
· Rostering changes;
· A new operating model;
· The introduction of a digital meal ordering system;
· An adjustment to the headcount of some positions; and
· Changes to duties currently performed.
The AWU submitted that the rostering changes are significant in that the roster will rotate every two months, resulting in employees two days off per week rotating by one day every two months. The Applicant said currently, employees work a permanent roster which does not change or rotate and thus, rostered days off do not change unless agreed by the employee and employer.
On 23 May 2022, the AWU said that the employer held two meetings with affected employees (the Meetings). Correspondence from the Respondent to the Commission dated 28 September says various meetings were held on 23 May to discuss the proposed change with the Food Services Team, and a letter was issued by Mr Hubbard to affected staff outlining the proposed change. A letter was sent to the AWU on the same day.
The Respondent said in its correspondence to the Commission that between 23 and 30 May affected staff were able to have a 1 on 1 conversation to further understand the proposed change and were able to ask questions and provide feedback to Mr Hoskin. It was submitted by the Respondent a total of 10 staff spoke with Mahadevan Jegatheesan, Operations Manager, for a 1 on 1 conversation which resulted in better understanding and positive outcome for each employee. The Respondent said questions and feedback on the proposed change were to be provided to Mr Hoskin by close of business.
The Respondent said in June 2022 staff feedback was considered and questions responded to.
The AWU submitted that on 7 July 2022, 27 July 2022 and 12 August 2022 Ms Chambers and AWU delegates (and CSA employees) Ms Judy Jefferey and Mr Michael Steed met with management representatives of the employer regarding the proposed new rotating roster. The Respondent’s correspondence also says meetings occurred on these dates.
On 22 July 2022 Ms Jeffery provided Ms Kathryn Wallace, Senior HR Business Partner of the Respondent, with a copy of the survey conducted by the AWU to determine the views of CSA employees affected by the new rotating roster.
The Respondent’s correspondence of 28 September says that the AWU survey is titled “Wesley Hospital – Survey – Proposed Rotating Roster Feedback” and poses the question “Are you happy to work the new rotating roster?” The Respondent said the AWU survey contains 36 names. The Respondent said it should be noted there are 105 affected staff, consisting of:
- 60 CSAs;
- 25 Stewards; and
- 20 Chefs.
The Respondent submitted that 36 names is not a majority. The Respondent identified one employee who signed the survey was no longer an employee, and another wrote “Not worry at moment”. The Respondent noted that 5 people in the AWU survey were casual employees.
The Respondent said that as per the definition of a casual employee under section 15A of the Fair Work Act 2009 (Cth), (the Act) these staff can elect to accept or reject work. The Respondent also submitted that a number of employees responses did not indicate they were opposed to the new roster or had noted family commitments as the reason they did not support the roster, however had Flexible Work Arrangements (FWA’s) in place. The Respondent also said that the survey only contained responses from CSAs and not Stewards and Chefs.
On 19 August 2022, Ms Chambers emailed Ms Wallace requesting that the Respondent agree to the distribution of an anonymous survey to CSA employees affected by the new roster to confirm the ratio of employees for and against the proposed new roster. The AWU submits that the Respondent neither responded to, nor agreed to this request.
On 9 September 2022, the AWU filed the dispute application and on 19 September 2022, the new roster commenced.
Status Quo Provisions
Clause 3.6.6 of the Agreement provides that while the dispute resolution procedure is being conducted, work must continue in accordance with the Agreement.
The AWU contends that given clause 6.5.1 of the Agreement requires majority agreement for rosters and that the Respondent has not complied with this clause in imposing the new rotating roster, work must continue in accordance with the previous roster.
The AWU further contends that the Respondent’s actions in imposing the new roster on and from 19 September 2022, some 10 days after the AWU’s lodgement of the dispute application, is in breach of clause 3.6.6 of the Agreement.
The AWU also included in its submissions clauses from previous enterprise agreements made between the parties that contained the same or very similar language.
The Relevant Cohort
The AWU submits that the Respondent contends that the relevant cohort of employees affected by the roster change is 105 employees as set out above. The AWU submits that at no time prior to 28 September had the Respondent asserted this to be the cohort affected by the roster change. The AWU contends that the new roster affects CSAs working in the Food Services team on the floor (Applicant’s Relevant Cohort). The AWU contends that the “part thereof” for the purposes of section 6.5.1 of the Agreement, and the introduction of a new rotating roster are the CSAs of the Food Services Team who have not previously been required to work a rotating roster. The AWU submitted that as of 21 October 2022, there were 32 Permanent CSAs working in the Food Services Team on the floor and approximately 18 casuals performing this same role.
Whilst it was clear material was provided for the purpose of the issuing of a recommendation without the giving of evidence, the AWU submitted a statement of Ms Jeffery. Ms Jeffery submitted that:
(a)The second of two meetings held on 23 May 2023 was for CSAs only and included brief details of the proposed new rotating roster;
(b)The Stewards employed in the Food Services Team that the Respondent has referred to in their correspondence dated 28 September 2022 have been working the same roster for approximately 4 years and their roster has not changed with the imposition of the new rotating roster for CSAs;
(c)The Chefs employed in the Food Services Team that the Respondent has referred to in their correspondence to the Commission dated 28 September have not had their rosters changed with the imposition of the new rotating roster for CSAs;
(d)The Kitchen employees employed in the Food Services Team that the Respondent appears to have included in the disputed cohort have not had their rosters changed with the imposition of the new rotating roster for CSAs.
The Respondent submitted that while the AWU submission has stated that the meeting held on 23 May 2022 was for CSAs only, this meeting was only one of many other meetings where Food Services Management met with all cohorts separately in their work areas as part of their departmental communication meetings. Each work area has different times to meet as per their working schedules. The schedule was to ensure operational requirements continued to be met.
The AWU submitted that in meetings held on 27 July 2022 and 12 August 2022 the Respondent did not assert that the AWU was misconceived in its’ understanding that the new rotating roster affected only CSA employees who had not previously been required to work a rotating roster.
Ms Jeffery’s statement indicated that at the meeting that took place on 12 August 2022, Mr Luke Hoskin, Hospitality Services Manager of the Respondent, confirmed that the new rotating roster affected only CSAs of the Food Services Network who have not previously been required to work a rotating roster.
The Respondent submitted that to enable the Room Service Operational Model, The Wesley Hospital requires all operational staff in cost centre 10641 – Production and Management to work on one proposed rotational roster. The Respondent submitted that there are 105 operational staff in cost centre 10641 – Production and Management at The Wesley Hospital consisting of 60 CSAs, 25 Stewards and 20 Chefs (Respondent’s Relevant Cohort).
The Respondent submitted that the proposed rotational roster for the Room Service Operational Model affects all of the Respondent’s Relevant Cohort. For this reason, the consultation process included all of the Respondent’s Relevant Cohort and not just the CSAs. As such, the Respondent asserts the ‘part thereof’ in clause 6.5.1 is the Respondent’s Relevant Cohort.
The Respondent contended that the AWU’s reference to Stewards and Chefs already working rotational rosters is incorrect. CSAs, Stewards and Chefs were all working set rosters where their non-rostered days did not change. The Respondent submitted that both Luke Hoskin, Hospitality Services Manager, and Mahadevan Jegatheesan, Operations Manager, have been in Food Services Management roles for 10 years and 14 years, respectively. Food Services Management create all operational rosters and understand how these are composed.
The Respondent submitted that Mr Jegatheesan creates the rosters and has a clear understanding on how these are composed. The AWU submitted the Respondent has not provided evidence from either of these managers confirming that each of the work groups listed in the draft template roster are affected by the introduction of the proposed rotational roster.
It was submitted by the Respondent that the proposed rotational roster is very different to what the Stewards and Chefs have been working over the previous years. Specifically, over previous years the Steward and Chef rosters rotated sous chefs and team leaders in a fortnight 1 / fortnight 2 rotation, and all other staff rotated through sections for upskilling and cross-training; however, their non-rostered days did not change. The proposed rotational roster is not the same as this previous format. The Respondent submitted that the proposed rotational roster is different in that the rotational roster rotates every two months, meaning each employees’ rostered days off rotate by one day every two months. For example, where an employee has rostered days off on Friday and Saturday in the first two months, the next two months they will have Saturday and Sunday rostered off work. As such, this is also a significant change to the Stewards and Chefs.
Further, the Respondent submitted that under the Room Service Operational Model, CSAs and Stewards will become ‘Dining Hosts’. This reflects the new operating model for a Meals on Demand environment that is akin to a Hotel-style service. In ‘Chris21’, UnitingCare Health’s HRIS and Payroll system, the role titles of the CSAs and Stewards have now been amended to the role of ‘Dining Host’ as part of the change management process. The Respondent submitted that this clearly demonstrates that the Stewards are intentionally part of the Relevant Cohort and demonstrates why the Stewards were consulted as part of the change management process.
The Respondent submitted that traditionally, patients would order breakfast, lunch and dinner within the same window, for example breakfast from 6:30am – 8:00am, lunch from 11:30am – 1:00pm and dinner from 4:30pm – 6:00pm; however, this is entirely dependent on patient activity within The Wesley Hospital, such as surgeries and recovery times. The Wesley Hospital requires a balanced model with the ability to flex up and down to meet patient’s food service needs. The Wesley Hospital Room Service kitchen is designed to allow for this flexibility through the design of two separate cooking pods that open and close based on the demand of patient meals. The future operation requires the Dining Hosts to be skilled across multiple areas; namely:
· Meal assembly;
· Delivery and distribution;
· Collection and wash-up; and
· Call centre operations.
As part of the Room Service Operational Model project, external consultants will provide additional support through on-site training, mock trials and training videos.
The Respondent submitted that Dining Hosts (i.e. CSAs and Stewards) will form the ‘Front of House’ with the Chefs in the ‘Back of House’. Collectively, the Dining Hosts and Chefs form the complete Room Service Operational Model that will work under one rotational roster. The Respondent submitted that the Dining Hosts and Chefs will work under the same rotational roster; however, the Chefs will commence the rotational roster when the construction works of the kitchen area allow. The planned implementation date for the Chefs of the trial rotational roster is 28 November 2022.
The AWU said in reply that the Respondent has failed to provide evidence demonstrating that the roster pattern provided for the work groups listed in the draft template roster is different to the roster pattern previously undertaken by these work groups. Thus, the Respondent has failed to provide cogent evidence showing how each of the work groups listed are affected by the introductions of the proposed rotational roster.
The AWU submitted they analysed the draft template roster and contended that this document does not support the Respondent’s Submissions that the Relevant Cohort is comprised of 105 operational staff for the following reasons:
· The total number of employees listed on the draft roster is 90 employees, including permanent full time employees, permanent part time employees and casual employees. The Respondent has previously contended that casual employees do not form part of the cohort (however defined). There are 7 entries on the draft trial roster for casual employees. There are 5 employees listed on the draft trial roster in the ‘admin’ work group, none of whom are required to work a rotating roster.
· The AWU also understands based on the Respondent’s Submissions that Chefs employed by the Respondent will not be required to work a rotational roster until a trial is implemented for this distinct work group on 28 November 2022.
· The AWU submitted that based on the evidence provided by the Respondent, there are at most 61 employees who will be required to work the rotating roster, made up of 4 distinct work groups being :
·Main Kitchen (but not chefs)
·Meal Assembly
·Delivery
·Call Centre
The AWU said they do not concede the Respondent’s Relevant Cohort for the purposes of the dispute is 61 employees, but this is at its best what the Respondent’s evidence indicates.
This dispute as it pertains to establishing the relevant cohort of employees affected by the dispute, has been complicated, and somewhat confused by the fact that there are two separate but somewhat overlapping processes occurring at the same time. The first being the process of organisational change occurring in accordance with the relevant parts of the Agreement that pertain to organisational change, and the separate process of roster change occurring in accordance with the parts of the Agreement that pertain to that process.
The AWU submitted that the proposition that was put forward by the Respondent that the holding of consultation meetings satisfies the requirements of clause 6.5.1 is incorrect. The AWU submitted that consultation regarding any matter of major organisational change is a requirement of clauses 3.1 and 3.2 of the Agreement. The AWU said that this dispute application is not about whether the Respondent has complied with their consultation obligations pursuant to the Agreement.
The AWU submitted that employee attendance at a meeting to hear from their employer as to a number of proposed changes, including the introduction of a new rotating roster, does not imply agreement to those changes, The AWU submitted that an employee who attends such a meeting without raising objections to the changes proposed cannot be deemed by the Respondent to have agreed to the changes proposed.
The AWU said that if the Respondent is correct in this proposition, for any agreement to have been validly made, the employee would need to be informed prior to their attendance at the meeting and that their attendance will be deemed by the employer as demonstrating agreement to the new rotating roster unless they raise specific objection to the new rotating roster.
In the absence of concurrent organisational change occurring, it is apparent from the terms of the Agreement that the relevant cohort for the purposes of establishing whether a majority of employees have agreed to a roster change, is the cohort of employees currently working under the roster that is proposed to be changed. Whilst there seems to be a dispute between the parties about the nature of the rosters that the Stewards and Chefs were working under at the time the Respondent proposed to move to a new roster, it does not appear to be in dispute that the CSAs, Stewards and Chefs were all working on separate rosters at the time the Respondent first proposed to move to the new roster.
It is now clear that the effect of the organisational change is that for each of the CSAs, Chefs, and Stewards who have been working under existing and separate rostering arrangements, they will be working under one roster.
It is important to compare apples with apples, and not apples with oranges. The words in clause 6.5.1 “…to be agreed from time to time between UCH and a majority of employees in any workplace or part thereof...” requires that it must be ascertained which employees fall within the “..workplace or part thereof..”. It is apparent, until the point at which the organisational change has been implemented, for the purposes of clause 6.5.1 CSAs, Stewards and Chefs each formed a separate “part thereof” for the purposes of 6.5.1.
From the point in time that the organisational change is implemented, it has a knock on effect of causing a change in the meaning of the words “..workplace or part thereof..” for the CSAs, Stewards, and Chefs, because before the organisational change they were regarded by both the Respondent and the relevant employees as separate parts “thereof”, and that ceases to be the case on implementation of the organisational change.
What flows from that, is that the AWU’s Relevant Cohort was the correct cohort for the purposes of determining the cohort to determine majority for the purposes of section 6.5.1 before the implementation of organisation change, and the Respondent’s Relevant Cohort becomes the relevant cohort after the organisational change has been implemented.
The AWU conceded that the history of the Agreement indicates that the requirement to obtain a majority support of the affected cohort does not extend to casual employees.
Casual employees do not form part of the cohort of employees who are intended to be included for the purposes of determining whether a majority of employees have agreed to the new roster, as they do not work in accordance with the roster, but rather are engaged by the day. Whilst they may fill vacant positions in the roster as casual employees, they do not work in accordance with that roster.
Majority Agreement
The AWU submitted that whether a majority of the relevant cohort of employees agree to the roster is a question that can only be determined by ascertaining the views of these employees.
The AWU understands that the Respondent’s position is that clause 6.5.1 does not required written agreement from a majority of the affected cohort and that holding meetings with group of the affected cohort can be satisfied by holding group consultation meetings with employees where those employees did not raise objections to the new roster.
The AWU contends that the Respondent is fundamentally misconceived in their understanding of their obligations to obtain the agreement of a majority of the affected cohort.
The Respondent submitted that of note, clause 6.5.1 of the Agreement does not state a majority needs to be obtained in writing. The Respondent further submitted that UnitingCare Health has obtained a majority support of the Respondent’s Relevant Cohort through its consultation process and discussions with the Respondent’s Relevant Cohort. The Respondent’s Relevant Cohort were consulted through leader led staff meetings, letters and emails from the General Manager of The Wesley Hospital.
The Respondent submitted that the fact that the Food Services Department only receiving 19 written responses from the Relevant Cohort of 105 staff members demonstrates that the majority are in favour of the Room Service Operational Model with a rotational roster. Further, The Respondent submitted that Food Services Management addressed the concerns of those 19 staff members and was able to provide support through various mechanisms including flexible working arrangements to support individual employee needs.
The AWU submitted that the Respondent has provided no evidence demonstrating that by attending these meetings employees implicitly agreed to the new rotating roster. Conversely it is said, the AWU survey demonstrated that a very significant majority of employees in the Applicants Relevant Cohort do not agree to the new rotating roster.
The AWU denied the Respondent’s assertation that the AWU survey was not explained in detail with appropriate context to the affected cohort.
The AWU submitted the Respondent had incorrectly inferred these employees within the affected cohort who have been provided Flexible Working Arrangements, are excluded employees for purposes of 6.5.1.
The AWU submitted that it is dangerous for the Respondent to assume that silence means agreement or consent to the proposed roster.
The AWU submitted the Respondent has not provided any evidence from Mr Hoskin or Ms Wallace as to what was said at the meetings, particularly in relation to whether employees were informed at these meetings that unless they individually raised objections to the proposed rotating roster, their attendance at the meetings would be deemed by the Respondent to constitute agreement to the new roster.
The AWU submitted that the Commission ought to draw an inference that the uncalled evidence of Mr Hoskin and Ms Wallace regarding majority agreement contended by the Respondent is because this uncalled evidence would not assist in demonstrating that majority agreement has been obtained.
It is clear from the material now before the Commission that the dispute is brought and pressed for the CSA employees, who have been working under a different roster from the Chefs and from the Stewards. I am satisfied that the CSA employees fall within the meaning of the words “part thereof” in clause 6.5.1, for the purposes of clause 6.5.1. up to the point that organisational change was implemented. It is a majority of those CSA employees, working under the roster that has previously been agreed to, and been worked under, that pertained to them. Until such time as they have participated in a process where they have agreed to a new roster as part of the different cohort that now exists because of the organisational change, they have not agreed to a roster change for the purposes of clause 6.5.1.
Whilst I am only dealing with submissions and not evidence, it would appear clear, even on the Respondent’s submissions, that the majority of CSAs have not yet confirmed agreement to change their existing roster to the new proposed rotating roster. Whilst there is an unresolved dispute over who is to be included in the Respondent Relevant Cohort, the Respondent figure being 105, and the AWU figure being 61, on either version the CSAs clearly make up the majority of the combined groups in the Respondent’s Relevant Cohort.
I agree with the AWU submission that silence should not be taken as confirmation of agreement, and satisfaction of the words “…to be agreed from time to time..” requires some positive affirmation that agreement has been obtained. The AWU survey is clear evidence of current opposition from a significant proportion of the CSA cohort.
The Respondent appears from its submissions to rely on the consultation process, and a failure to express opposition as agreement.
It has been submitted by the AWU that the Respondent, has conflated the requirement to consult about organisational change under the Agreement, and its requirement to obtain majority agreement to implement a roster change. I am inclined to agree.
It has not been suggested however by the AWU that the Respondent has failed to comply with its obligations to consult about the proposed changes as required by the Agreement. There is no dispute before the Commission that the Respondent has failed to comply with the consultation requires in the Agreement regarding organisational change, and it would appear from the material that the decision to implement organisation change has been taken, and the implementation of that change has occurred. What remains is the dispute concerning a new roster that will apply to the Respondent’s Relevant Cohort now that the change has been implemented. The requirements of section 6.5.1 are separate to the consultation process in regard to organisational change, and the Agreement requires that they be met.
It may be the case that the Respondent has regarded its consultation process for organisational change as also satisfying section 6.5.1 when they are separate requirements.
As it is a condition of clause 6.5.1 that a majority of employees agree to a change in the roster, a majority of CSA’s, Stewards and Chefs will need to agree to the new roster, before it can be implemented. The Agreement does not permit the Respondent to change the roster of any of three separate groups, until the majority of that “..part thereof..” of the workforce have agreed.
To be clear, I have concluded that a majority of the CSA employees have not yet agreed to a change, and they are the largest group of the three. The AWU application does not squarely address the question of whether a majority of other groups such as the Chefs or Stewards, have not agreed to the new roster, except to the extent that it has said silence cannot be taken as agreement. The AWU has brought the dispute for the CSA group and not the other groups. However, given the conclusion above, it is necessary to grapple with the issue.
On the state of the submissions before the Commission, it is not possible to be certain about the attitude of the Stewards and Chefs to the new rotating roster, but I am not satisfied on the material that a majority of them have agreed to the new rotating roster. No material has been provided to support that claim other than generalised assertions that they have been consulted. Even if I were satisfied that the majority of Stewards and Chefs have agreed to the new roster, which I am not, that does not establish that a majority of the Respondent’s Relevant Cohort have agreed to the new roster.
The Respondent submitted that the current roster shall continue without rotation subject to the Commission’s recommendation(s) or opinion pursuant to section 595(2) of the Fair Work Act 2009 (Cth). It is not entirely clear whether that submission was intended to refer to the roster that CSA employees were working on at the time the dispute was notified by the AWU, or some other roster.
Given I have expressed the view that I am not satisfied a majority of the Respondent’s Relevant Cohort have agreed to the new roster, the roster that the CSA employees were working on at the time the dispute was notified is the roster that applies in accordance with the terms of the Agreement. To the extent that it is not the roster CSA employees are currently working on, that is not consistent with the Agreement, and the roster should be applied as it was at the time the dispute was notified until the majority of the Respondent’s Relevant Cohort have agreed to a change.
Way Forward
The Respondent submitted that it was its understanding that the AWU is in favour of the Room Service Operational Model; however, is opposed to the proposed rotational roster. The Respondent submitted it is the rotational roster that successfully enables the Room Service Operational Model. The Respondent submitted that a set rostering system without a rotation in place will not forward the ability for staff to be skilled across all service periods in a day and varying patient occupancies across the week.
The Respondent has made a decision to introduce organisational change by moving to a different model of service delivery. This is a decision entirely within its managerial prerogative subject to complying with the terms of the Agreement.
It is apparent the implementation of the Respondent’s desired organisational change may be being frustrated by delay caused by an impasse over the proposed roster changes. This Recommendation does not resolve that dispute, and only addresses the issue to the extent that the Respondent cannot currently implement the new roster for CSAs.
In some circumstances organisational change can be substantial enough that it may trigger positions becoming redundant as a result. If an employer is committed to organisational change and that change cannot be implemented because of an impediment, the employer many ultimately consider other ways of achieving that change.
The AWU has sought a recommendation that the Respondent conduct a ballot of CSAs who were previously working a predominantly set roster and who are required to work the new roster to determine whether a majority of those employees agree to this roster. I do not propose to make such a recommendation as, given that it does not appear to be in dispute that organisational change has been implemented, that the relevant cohort for future agreement to roster change has become the Respondent’s Relevant Cohort.
On the material before me I have already expressed the opinion that a majority of that cohort has not yet agreed to the new roster for the purposes of section 6.5.1. Given the conclusions here, the appropriate course is for the parties to confer before moving to ascertain the question of majority. My concern is without further engagement, and agreement about ‘ground rules’ for ascertaining majority, moving hastily with a process that is not agreed will not assist to resolve the substance of the dispute, and the parties will be back before the Commission with a different dispute about process.
It is recommended that the parties engage in direct discussions as soon as possible to attempt to do two things. Firstly, to attempt to resolve any issues standing in the way of CSA employees in particular, reaching agreement with the Respondent over an agreed new roster for the Respondent’s Relevant Cohort, which will include them. The parties should engage in those discussions with an open mind and a preparedness to further consider the interests of the other party to the dispute in attempting to reach an agreement.
Secondly, those discussions should include consideration of an appropriate method of determining whether a majority of employees have agreed to a proposed new roster. While the Agreement does not specify the method of establishing a majority, there are various means of satisfying that requirement, for example a secret ballot or a show of hands at a meeting or meetings, however it would be necessary to ensure the views of all employees affected by the roster change are taken into account in determining whether a majority have agreed, and the process should be a transparent one that can withstand scrutiny. The Commission as currently constituted stands ready to assist in those discussions.
As indicated, I agree with the view expressed by both parties that under the terms of the Agreement, the canvassing of views does not need to extend to casual employees.
COMMISSIONER
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