Australian Workers' Union v APT AM Employment Pty Limited t/a APA Group

[2019] FWC 4402

[2019] FWC 4402

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Australian Workers’ Union
v
APT AM Employment Pty Limited t/a APA Group
(C2019/698)

DEPUTY PRESIDENT COLMAN MELBOURNE, 3 JULY 2019

Dispute over on-call clause in enterprise agreement – whether new employees possess ‘sufficient skills’ – interpretation of clause – whether consultation clauses engaged

[1] This decision concerns an application made by the Australian Workers’ Union (AWU) under s 739 of the Fair Work Act 2009 (Act) for the Commission to deal with a dispute in accordance with the dispute settlement procedure in clause 1.7 of the APA Network Agreement (Victoria & New South Wales) 2018 (Agreement) 1. The Agreement applies to employees of APT AM Employment Pty Limited (APT), a company that manages and maintains the Australian Gas Network assets across Victoria and New South Wales.

[2] The dispute concerns the interpretation of the on-call provision in clause 4.3.4 of the Agreement. The AWU contends that the company’s proposed addition of three employees to one of its on-call rosters is inconsistent with this clause, because the employees do not have ‘sufficient skills and experience’ to be rostered for the relevant on-call work, and that this is a requirement of the clause.

[3] The AWU also contends that the proposed change to the roster constitutes ‘major change’ for the purpose of the consultation provision in clause 1.8.1(a) of the Agreement, or ‘change to the regular roster’ for the purpose of clause 1.8.1(b), and that the company is required to consult with the union and affected employees about the inclusion of the three new employees on the roster. And finally, the union submits that the company is required to discuss the proposed change with the consultative committee under clause 1.9 of the Agreement.

[4] The company disagrees on all counts. In particular, it contends that the three employees it proposes to add to the roster, all of whom want to participate on the roster, have sufficient skills and experience to do the relevant work.

[5] The union brings the dispute on behalf of the two employees who currently work on the on-call roster in question, Mr John Foletta and Mr Robert Francis. The practical effect of the proposed change is that, instead of being rostered every other week, the two employees will each be rostered once every five weeks. The union does not challenge the addition of employees to the roster per se. Rather it says that the three additional employees are not suitably qualified. I note that the proposed change has not been implemented because of the status quo provision in the disputes procedure (clause 1.7.5).

The background and the clauses in dispute

[6] The on-call roster that is at issue in this dispute applies to one of the areas within the company’s ‘Network Operations’ area called the ‘Systems Operations Department’. Employees in this area are engaged in three key positions: systems operations fitter, systems operations supervisor, and program coordinator. According to Mr Robert Davis, the company’s operations manager for Victoria and New South Wales, the company operates three ‘on-call and call-out’ rosters for the after-hours response of systems operations maintenance issues for the Australian Gas Network: the ‘systems operations fitters on-call and call-out arrangement roster’; the ‘emergency management roster’; and the ‘systems operations on-call and call-out arrangement roster’. The dispute concerns the last of these rosters. I will refer to it as the ‘disputed on-call roster’.

[7] Since late 2015, three employees have been rostered on the disputed on-call roster: Mr Foletta and Mr Francis, who are employed as systems operations supervisors, and Mr Danny Fisher, who was also employed as a systems operations supervisor until his dismissal in mid-December 2018. Mr Davis gave evidence that Mr Fisher’s employment was terminated in connection with a breach of the company’s safety protocols, in circumstances where Mr Fisher had said that a contributing factor in the breach was his fatigue; Mr Fisher told the company that he often felt tired as a result of being one of only three people working the disputed on-call roster.

[8] Mr Davis gave evidence that this prompted him and Mr Don Macisaac, the former network operations project coordinator who was responsible for the systems operations department, to review the disputed on-call roster. Mr Davis said that, although employees have a ten hour break between working overtime on the on-call roster and reporting for duty the next day, the company was concerned about fatigue management and the health and safety of employees working on the disputed on-call roster. Mr Davis and Mr Macisaac decided that it was appropriate not only to replace Mr Fisher on the disputed on-call roster, but to add additional employees to it. In late December 2018 and early January 2019 they considered which employees to appoint to the roster, and identified as suitable candidates Mr Mark Hally, Mr Robert Jamieson and Mr Tony Harbach. 2

[9] Mr Hally is a Band 6 supervisor, which is the same level as Mr Foletta and Mr Francis, but unlike them, he is not a systems operations supervisor. He was formerly a systems operations fitter. Mr Jamieson is a Band 6 electrical and instrumentation technician. Mr Harbach is a systems operations fitter who has been seconded to work in a Band 6 systems operations supervisor role for the past five months.

[10] In mid-January 2019, the company advised Mr Foletta and Mr Francis of its proposal to include the three additional employees on the roster. A meeting occurred on or around 18 January 2019 to discuss the matter. Mr Foletta and Mr Francis stated that they agreed that additional people should be put on the roster, but said that the three employees in question did not have sufficient skills and experience, and claimed that only systems operations supervisors should be on the systems operations roster. 3

[11] On 1 February 2019 the AWU filed its application under s 739 and clause 1.7 of the Agreement. The application stated that Mr Foletta and Mr Francis are employed as system operations supervisors who are required to hold a level three certificate in pressure control, and noted that the additional three employees did not, and would not be required to, hold the same level of qualifications in order to work on the disputed on-call roster. 4

[12] The matter was listed for conciliation but remained unresolved, and the parties agreed that the application should proceed to arbitration. Directions were issued for the filing and service of submissions and any evidentiary material. The AWU filed witness statements of Mr Foletta and Mr Francis. The company filed a witness statement of Mr Davis. The matter was heard before me on Wednesday 26 June 2019.

[13] It was common ground, and I agree, that the Commission is authorised by the dispute settlement provision in clause 1.7 of the Agreement to deal with the dispute by arbitration, and that the dispute can be resolved by my determining the questions that the parties have submitted for arbitration. Those questions are as follows:

‘(1) Is the appointment of the three additional employees to the On-Call and Call Out Arrangements roster consistent with the requirement in clause 4.3.4 of the APA Network Agreement (Victoria & New South Wales) 2018 (Agreement) that the employer ‘nominate employees with sufficient skills and experience to be rostered within an area for on-call duties?

(2) Does the decision by APT to add three additional employees to the On-Call and Call Out roster constitute ‘major change’ for the purpose of clause 1.8.1(a) or ‘change’ for the purpose of clause 1.8.1(b)?

(3) Does clause 1.9 of the Agreement require APT to discuss the appointment of the three additional employees to the On-Call and Call Out roster with the consultative committee?’

[14] The AWU contends that the correct answers to these three questions are ‘no’, ‘yes’, and ‘yes’. The company contends that the opposite is the case.

[15] The first paragraph of clause 4.3.4 reads as follows:

“4.3.4. On Call and Call Out Arrangements:

The parties agree that all Employees with sufficient skills and experience are expected to be available to participate in a reasonable amount of on-call duties should it be deemed by the Employer to be necessary for safe and reliable operations. The Employer shall nominate Employees with sufficient skills and experience to be rostered within an area for on-call duties.”

[16] The subsequent paragraphs in clause 4.3.4 specify how an employee on the roster will be paid (paragraphs 2, 3 and 7); state that an employee on roster who is not available when a call is made will not be paid and may face disciplinary action (paragraph 4); make arrangements for public holidays (clause 5); make provision for employees not on roster who take calls at home (paragraph 6); and deal with the number of jobs that an employee can be required to do (paragraph 8).

[17] The consultation provision in clause 1.8 commences as follows:

“1.8 Consultation

1.8.1 This clause applies if the Employer:

(a) intends to make a decision to introduce a major change to production, program, organisation, structure or technology in relation to its enterprise that is likely to have a significant effect on the Employees; or

(b) proposes to introduce a change to the regular roster or ordinary hours of work of Employees”

[18] The following paragraphs define ‘significant effect’ (clause 1.8.9) and set out the content of the consultation obligations.

[19] The clause establishing the consultative committee reads, in its entirety, as follows:

“1.9 Consultative Committee

To ensure effective consultation, a Consultative Committee, comprising at least two (2) senior representatives of the Employer and at least three (3) Employee representatives will regularly meet at least every six months to review the effectiveness of this Agreement and discuss any issues of company-wide significance that arise from time to time. This group may also establish sub committees which may be comprised of Employees, management and Employee representatives for the purpose of monitoring other aspects of the Agreement.”

Submissions of the parties

[20] The AWU contends that clause 4.3.4 of the Agreement limits the right of the company to appoint employees to the disputed on-call roster to those employees who have ‘sufficient skills and experience’. It notes the second sentence in the first paragraph of clause 4.3.4, which states that the employer ‘shall nominate employees with sufficient skills and experience’ to be rostered for on-call duties; it says that ‘shall’ is plainly mandatory, and that the company must do this. It further says that the question of whether employees have sufficient skills and experience must be determined objectively, and not simply by reference to the company’s view of what constitutes sufficient skills and experience.

[21] The AWU says that, applying this analysis to the facts of the present dispute, it is objectively clear that the three additional employees nominated by the company to be on the disputed on-call roster do not have sufficient skills and experience. In this regard, it relies on the evidence of Mr Foletta and Mr Francis, both of whom express this conclusion and their various reasons for reaching it. The union says that the evidence of both Mr Foletta and Mr Francis is that the work performed on the on-call roster is the same as, or similar to the work performed by them in their role as systems operations supervisors during ordinary hours, and that the on-call roster is in substance a systems operations supervisor roster. The union says that the new roster document, which includes the names of the three proposed additional employees, identifies the positions of all of them as ‘systems operations supervisors’, and is headed ‘systems operation supervisor availability roster’. It says that none of the three additional employees possess all of the essential skills and experience identified in the position description for the systems operations supervisor role.

[22] The union further contends that the company’s proposal to assign to the on-call roster employees who do not possess the minimum skills and experience represents a ‘major change’ for the purpose of clause 1.8.1(a) of the Agreement, and that this also constitutes a change to the ‘regular roster’ or ‘ordinary hours’ of the employees under clause 1.8.1(b). The union says that clause 1.9 ‘requires’ APT to discuss the new appointments to the roster with the consultative committee, and that the company wrongly denied Mr Foletta’s request for a meeting of the consultative committee to be convened for this purpose.

[23] The company does not dispute that clause 4.3.4 requires it to nominate for the roster employees who have sufficient skills and experience. It submits rather that the clause confers on it the sole discretion to nominate employees with sufficient skills and experience to participate in on-call rosters, where such participation is, on the company’s assessment, required for safe and reliable operations. It says that the Commission’s role is not to determine whether the employees have sufficient skills and experience, but is confined to establishing whether the company engaged in a proper process of assessment of each of the employees before appointing them to the roster.

[24] In this connection, the company says that it is subject to stringent statutory requirements in relation to occupational health and safety, both under clause 6 of the Agreement and under legislation. It says that the evidence of Mr Davis confirms that the company made the decision to increase the number of employees on the disputed on-call roster following a fatigue-related safety breach and that it carefully assessed the skills and experience of the proposed new employees and satisfied itself that these were sufficient and appropriate for their inclusion on the roster.

[25] The company further contends that the proposed inclusion of the additional three employees on the roster can in no way be described as a ‘major’ change for the purpose of clause 1.8.1(a) in the Agreement, and nor is it a ‘change’ to the ‘regular roster or ordinary hours of employees’, because the on-call roster is separate from their regular duties as systems operations supervisors. The company appreciates that the effect of the proposal will be that Mr Foletta and Mr Francis are rostered less often, and that this will have a financial impact on them, but contends that any ‘change’ affects their irregular roster and non-ordinary hours of work. The company says that clause 1.9 of the Agreement is not engaged.

The on-call roster provision - clause 4.3.4

[26] Although the parties differed as to how the sufficiency of employees’ ‘skills and experience’ is to be assessed, they agreed that clause 4.3.4 imposes a restriction on the employees whom the company is able to place on an on-call roster. Indeed the first question posed for determination operates upon a premise, namely that the clause contains a ‘requirement’ the anyemployee on the on-call roster have ‘sufficient skills and experience’. I reject the premise. In my view, the first paragraph of clause 4.3.4, properly construed in context, is concerned with employees’ obligation to be available to work on on-call rosters, and the mechanism of their appointment to such rosters by the company.

[27] The first sentence of the first paragraph of the clause states that ‘all employees with sufficient skills and experience are expected to be available to participate in a reasonable amount of on-call duties should it be deemed necessary for safe and reliable operations’ (emphasis added). It is only employees with ‘sufficient skills and experience’ who are subject to this ‘expectation’. Further, they are only expected to be available to participate in a ‘reasonable amount’ of on-call duties, and then only where this is deemed necessary by the employer for safe and reliable operations. The first sentence says nothing about which employees may agree to participate in the roster.

[28] The second sentence of the first paragraph deals with how employees who are expected to be available to participate in the roster are actually placed on the roster. It says that the employer shall nominate employees with sufficient skills and experience to be rostered within an area for on-call duties. Read in isolation, there is some attraction to the union’s argument that the second sentence is a commandment to the employer to appoint employees with sufficient skills and experience to on-call rosters, and only such employees. But the second sentence cannot be read in isolation. A word, clause or sentence must be read in context, and part of the context of the second sentence here is the sentence that preceded it. The first sentence of the paragraph deals with which employees can be required to be available for the roster. The second sentence deals with who will be required to be so available. An employee cannot be required to participate on the roster unless there are placed on the roster. To do this, the employer shall nominate them. Then they can be required to perform the on-call duties.

[29] In my view, the first paragraph of clause 4.3.4 regulates when an employee can be required to work on an on-call roster. It does not say that an employee cannot agree to participate in an on-call roster unless they have sufficient skills and experience. In the present case, the three additional employees all want to participate in the roster. Clause 4.3.4 does not deal with this situation.

[30] This does not mean that the clause authorises the employer to roster employees who are not suitably qualified. Rather, the clause is silent about qualification requirements of roster volunteers. The company is subject to rigorous safety obligations and it will no doubt satisfy itself that it is safe and appropriate to utilise any particular employee in a given role. The company will decide whether to use particular employees on the roster, having regard to its other legal obligations, including clause 6 of the Agreement with deals with safety. However, clause 4.3.4 simply has nothing to say about restrictions on which employees can agree to participate in on-call rosters. It is concerned with restrictions on who can be compelled to go on the roster. It is not surprising, or uncommon, for an agreement to contain such a provision. Although in the present matter the on-call work in question appears to be popular with affected employees, this is not always the case. It may be necessary to require certain employees to do this work, but this can only occur if they are suitably qualified and there is a good reason for their deployment. This is what clause 4.3.4 is concerned with.

[31] The Commission is not bound by a common view of an employer and a union about the meaning of a provision in an enterprise agreement, although of course the Commission will have regard to it. In this case, it was not contended that the common view in question was the shared understanding of those involved in the making of the Agreement and that this was also explained to employees who voted on it, such that the clause in question has a special agreed meaning that is not its obvious meaning. The company and the union simply put forward their interpretation of the words in question. Part of the Commission’s role in the present matter is to determine the correct interpretation. In my opinion, clause 4.3.4 has the meaning I have explained above. The answer to question 1 is therefore that the company’s proposed change to the roster is not inconsistent with clause 4.3.4, because the clause does not regulate the question of which employees may agree to work on an on-call roster.

[32] However, I will proceed now to consider how I would analyse and apply clause 4.3.4 in the event that the parties’ common view were correct, and the clause did limit the company’s ability to utilise any employees, including volunteers, on on-call rosters.

[33] The union contends that the question of whether an employee has ‘sufficient skills and experience’ is to be objectively assessed. The company says that it is for it alone to make this assessment. In my view, the union’s position on this question is clearly correct. The clause does not say that the company will nominate employees who in its opinion meet the criteria. It says that employees ‘with sufficient skills and experience’ are expected to be available to participate in on-call duties, and can be nominated for it by the employer. The fact that the employer can nominate persons with sufficient skills and experience does not mean or suggest that it alone determines the question of sufficiency. Rather, it means that the company can only nominate someone with those attributes. Whether a person has these attributes must be determined objectively. It is a question the Commission can determine under the disputes procedure in the Agreement.

[34] However, the clause also states that the employer shall nominate employees with sufficient skills and experience ‘to be rostered within an area for on-call duties.’ The clause has nothing to say about what areas or what duties these might be. In my view, the relevant ‘areas’ and ‘duties’ are quite clearly matters for the employer to determine at its discretion. In the present case, as explained above, the company has established three on-call rosters for the after-hours response of system operations maintenance issues. The duties that are to be performed in respect of each of these areas are those mandated by the company. Under clause 4.3.4, there is no role for the union or employees or anyone else in determining what areas should be the subject of a roster or what the duties associated with the roster must or should be.

[35] Of course, if the company requires certain duties to be performed on a roster, there might be a disagreement, under the disputes procedure, about whether employees assigned to the roster had sufficient skills and experience to perform those duties. That question would need to be determined objectively.

[36] There is no role or position description for the disputed on-call roster. Mr Davis explained in his evidence that the duties the company requires of employees on the disputed on-call roster include reviewing and responding to alarms raised in the control system, called ‘SCADA’, taking calls and responding to incidents alerted to the employees by its national response centre, identifying whether the incident requires immediate rectification works or can be monitored and then rectified the next day, liaising with and calling out systems operations fitters to attend sites and responding to faults, and identifying incidents of heightened seriousness and escalating these in the appropriate way. 5 I accept this evidence.

[37] Mr Foletta and Mr Francis said that they consider that the on-call duties they perform on roster are the same as or very similar to their daily systems operations supervisor duties, and that to perform the on-call roster duties a person would need the same minimum skills and experience as set out in the position description for the systems operations supervisor position. 6 Clearly, the company does not require employees on the disputed on-call roster to act as supervisors. However, the union effectively contends that the real, practical requirements of the on-call roster exceed those that are formally identified by Mr Davis.

[38] I accept that the various tasks that Mr Foletta and Mr Francis attend to on the disputed call-out roster are tasks they perform in their regular role as supervisors. But it does not follow, as the union seemed to suggest, that all of the supervisor duties are call-out duties, and that the two roles are therefore the same. As a matter of logic, the fact that all A equals B does not mean that all B equals A. The supervisors find that all of the tasks they perform on the call-out roster are duties of their regular supervisor duties. But it is also very clear that not all of their regular supervisor duties are needed or used in the on-call role. For one thing, it is evident, and I find, that it is not necessary for an employee working on the roster to supervise a team. Further, the evidence of both Mr Foletta and Mr Francis was that, whereas ‘responsive work’ (responding to calls etc.) constitutes 10 or 15 percent of their work in the supervisor position, it was a significant part of the on-call roster work.

[39] The tenor of the union’s case was that the disputed on-call roster was in essence, even if not in name, a supervisor or supervisor-level roster which requires high level skills and experience. It may be accepted that Mr Foletta and Mr Francis are especially experienced and may be able to deal with a wider range of issues than other employees, including the three additional employees proposed to be included in the roster. But even if they are more able and qualified for the on-call roster work than their three colleagues, this does not mean that the new employees do not have sufficient skills and experience. The company does not require persons on the roster to be supervisors and I cannot identify any evidence that suggests that this is a practical requirement.

[40] Mr Francis said in his statement that if a major incident occurred after hours, the person on-call would have to deal with it largely on his own. 7 Mr Davis said this was not the case, and that the employee management plan requires all major incidents to be escalated to the relevant manager and the emergency management team.8 He also said that an employee on the on-call roster is not required or expected to manage or resolve a major incident without the supervision and assistance of a manager and the emergency management team.9 I accept his evidence. Mr Davis is the state operations manager and is able to state authoritatively what duties the company expects employees on the roster to perform.

[41] Mr Davis explained that the company has an emergency management plan and incident notification requirements to ensure that dangerous and emergency situations are promptly dealt with and escalated to the NRC and emergency management team. 10 In cross-examination, Mr Foletta and Mr Francis acknowledged that all of the call-outs since January 2019 have been at level 1 of the company’s five grade emergency authority levels, level 1 being a ‘local incident’ (level 2 is a ‘minor incident’). This does not mean that serious and high level incidents will not occur; and Mr Francis said that they had been ‘lucky’ over this period. But if serious incidents occur, the employee on the on-call roster can enlist the support of others, such as the duty manager or the national response centre, in the case of a notifiable incident.11

[42] The union also sought to contend that the company did, in fact, require employees to be supervisors in order to be on the roster, and treated the disputed on-call roster as a supervisor roster. It pointed to rosters sent to employees on 17 January 2019 which were headed ‘systems operations supervisor availability roster’, and which described all of the five employees (Mr Foletta, Mr Francis and the three additional employees) as system operations supervisors. 12 But Mr Davis explained that these were simply mistakes. I accept this evidence. I note that an on-call roster from 23 January 2019 attached to Mr Foletta’s statement is titled ‘Victorian Networks SCADA availability roster’.13 Further, the email message from Mr Macisaac to Mr Foletta, Mr Francis and the three additional employees that attached the roster document addressed the required competencies and knowledge for employees on the disputed call-out roster. These did not include supervisory skills or experience. Mr Davis said, and I accept, that it was not a requirement for call-out work on the disputed roster that employees guide or advise others.14

[43] The union contended that in the past, the roster has been a ‘supervisor roster’. Mr Francis gave evidence that this was the case. Mr Foletta also said that the only people who had ever worked on this particular on-call roster were systems operations supervisors. 15 However, whatever might have been the company’s requirements in the past, its current requirements are very clear. It has established a roster for on-call duties in the ‘area’ of systems of operations. It has not established a systems operations supervisor roster. It does not want a ‘supervisor roster’ and does not require employees working that roster to be supervisors. Nor is it the case that, in order to do the things that the company asks of employees on that roster, it is necessary for them to have the skills and experience of a systems operations supervisor.

[44] The union noted that, whereas Mr Foletta and Mr Francis are required to hold a level three certificate in pressure control, the additional three employees do not have this qualification and are not required to hold it in order to work on the disputed on-call roster. 16 However, this conflates the requirements of the systems operations supervisor role with the requirements of the disputed on-call roster. The company does not need employees to have this qualification for the on-call roster. I note that Mr Foletta said in his statement that, in relation to pressure regulating equipment, he did not think any of the three additional employees ‘are quite there yet’.17 Evidently, the disputed qualification of the three new employees in respect of pressure-regulating equipment is a marginal proposition, at least for two of the three employees. However such qualifications or experience are not a formal or a de facto requirement of the on-call role. What the company requires employees to do is to be competent in navigating and operating the SCADA system, have a basic understanding of the fundamentals of the company’s pressure control and bath heater operations, and understand and comply with its ‘escalation pathways’.18 The last point underscores that employees on the roster are not expected to be able to deal with every problem themselves. Mr Foletta and Mr Francis may be able to deal with more issues without assistance, and perhaps generally work to a higher level, than can the three new employees. But as noted above, this just means they are amply qualified to undertake the on-call duties. It does not mean that the new employees are not sufficiently skilled and experienced.

[45] In my view, the evidence clearly establishes that the three additional employees possess ‘sufficient skills and experience’ for the duties that the company expects them to perform on the particular on-call roster that the company has chosen at its discretion to establish, as clause 4.3.4 allows. Mr Davis’ evidence about the skills and experience of the additional employees and the manner in which he and Mr Macisaac assessed their abilities and experience demonstrates that this is the case. 19 The company expects these employees to be available to participate in a reasonable amount of on-call duties, and deems this ‘necessary for safe and reliable operations’. In this regard, the rationale for expanding the group to five was related to fatigue management and safety. The company has nominated the additional employees to be rostered within the area it has identified (systems operations, not supervision or systems operations supervision), for on-call ‘duties’ as described by Mr Davis.

[46] The appointment of the additional employees to the disputed on-call roster is consistent with the ‘requirement’ of clause 4.3.4 (assuming that there is any relevant requirement in relation to volunteers) that the company nominate employees with sufficient skills and experience to be rostered for on-call duties within the relevant area.

The consultation provision: clause 1.8

[47] The union’s primary contention in relation to the second question submitted for determination was that assigning to the disputed on-call roster employees who do not meet the minimum requirements of the systems operations supervisor role and who are not employed as systems operations supervisors represents a change to the structure and organisation of the company’s systems operations department. However, the premise of this argument has been rejected above. The appointment of the three additional employees is not affected by, or alternatively is consistent with, clause 4.3.4.

[48] Nevertheless, I understand the union to contend that, even if the appointment of the three additional employees to the dispute on-call roster is compatible with clause 4.3.4, the proposed appointments still constitute a major change for the purpose of clause 1.8.1(a), or a ‘change to the regular roster or ordinary hours of work of employees’ for the purpose of clause 1.8.1(b) of the Agreement.

[49] Clause 1.8.1(a) states that the consultation clause will apply if the company makes a decision to introduce ‘major change to production, program, organisation, structure or technology in relation to its enterprise that is likely to have a significant effect on employees’. I do not see how it can be said that increasing the number of employees on an on-call roster in a manner consistent with the Agreement can constitute a major change to any of things mentioned in clause 1.8.1(a). Even if it were accepted that the company had changed what used to be a ‘systems operations supervisor on-call roster’ to a non-supervisory variant of this roster (which has not been established), I do not consider that this would be a major change in organisation or structure.

[50] The union pointed to Mr Foletta’s evidence that the proposed addition of the three employees to the roster would mean that fitters will have to take on additional responsibilities due to the three new employees not having the requisite skills and experience to assist and guide them when they are called out to respond to an incident, and that this will be major change. However Mr Davis’s evidence was that the decision to nominate an additional three employees to the disputed on-call roster would not affect the duties or expectations of the systems operations fitters. In my view the evidence does not establish that the proposed arrangements will have any demonstrable effect on fitters, much less that any effect would be significant; and in any event I do not see how such an effect falls within any of the identified types of major change contemplated by clause 1.8.1(a) (change to production, program, organisation, structure etc.). And beyond this, it could not be said to fall within any of the categories of ‘significant effect’ set out in clause 1.8.9.

[51] Does the addition of the three new employees to the roster constitute a change to the ‘regular roster’ or ‘ordinary hours of work of employees’ for the purpose of clause 1.8(b)? No. Mr Foletta and Mr Francis are employed as day workers whose ordinary hours are from 7.00 or 7.30am to 3.30 or 4.00pm Monday to Friday. It is uncontentious that the proposed change will not affect their ordinary hours. The union contends however that the disputed on-call roster of Mr Foletta and Mr Francis is a ‘regular roster’, as they are the only two employees currently on it, and they make themselves available week in and week out, on alternating weeks.

[52] I agree with the union that, for Mr Foletta and Mr Francis, the disputed on-call roster meets the ordinary meaning of the words ‘regular roster’. It is a roster and for them it is regular. But in the context of clause 1.8.1(b), I am not convinced that ‘regular roster’ means the call-out roster. Clause 1.8.1(b) is concerned with change to ‘the regular roster or ordinary hours of work of employees’. It refers to the regular roster, or, in the alternative, ordinary hours of work. It contemplates either rostered shift work or ordinary day work.

[53] If clause 1.8.1(b) had been triggered in this case, and the call-out roster is a regular roster, then it would be clear enough that the company proposes a change to it, because Mr Foletta and Mr Francis will not be rostered as regularly as they were before. And it is clear that this will have a financial implication for them, as they describe in their witness statements. However, if the clause did apply, I consider that the company has complied with it. The clause requires relevant employees and their union to be notified of the proposed change (clause 1.8.10). The company must discuss the introduction of the change with the relevant employees and provide to them all relevant information about it, including information about effects on employees and other matters the company reasonably believes are likely to affect employees; and it must invite the employees to give their views about the impact of the change (clause 1.8.13).

[54] On 18 January 2019 Mr Davis met with Mr Foletta and Mr Francis in relation to the company’s decision to nominate the three additional employees to the call-out roster. Mr Davis said that at the meeting, Mr Foletta and Mr Francis raised their views that the three employees did not have the required skills and experience, and that only supervisors should be put on the roster. He also said that for much of the rest of the time they discussed issues about other aspects of their employment unrelated to the roster. 20 He said that nothing raised at the meeting convinced him that the three employees were not competent to perform the duties required of an employee on the roster. From this I infer that he gave consideration to what they said. It is not clear from the evidence whether Mr Davis specifically ‘invited’ them to express their views, but they clearly had the opportunity to do this and in fact did so.

[55] Further, the email message from Mr Macisaac to the five employees on 17 January 2019 21 provided information about the change, and although it did not address the financial implication for Mr Foletta and Mr Francis, they were under no misunderstanding about this, and indeed it appears that the implication was mathematically clear. They will each be rostered one week in five, not one week in two, with a corresponding reduction in the relevant allowance.

[56] Furthermore, in my view, following the conciliation and now arbitration of this dispute, I consider that there is really nothing left to consult about.

The consultative committee – clause 1.9

[57] Finally, there is the question of whether ‘clause 1.9 of the Agreement requires the company to discuss’ the appointment of the three additional employees to the disputed call-out roster with the consultative committee. The clause, which is set out earlier, states that the consultative committee ‘will regularly meet at least every six months to review the effectiveness of the Agreement and discuss issues of company-wide significance that arise from time to time.’

[58] The union submits that the committee has not met since late 2017. But clearly in this matter we are concerned with the application of clause 1.9 of the present agreement, which was approved on 17 January 2019, not with analogous provisions in predecessor instruments that are no longer in operation. The union’s written submissions and the evidence of Mr Foletta was that there was some resistance from the company to convening a meeting of the consultative committee however the union noted at the hearing that events had overtaken this contention, as the company had now scheduled a meeting of the committee.

[59] The present dispute is a matter that might well be discussed at a meeting of the consultative committee, if it is said to be an issue of ‘company-wide significance.’ However I do not consider that the clause specifically ‘requires’ the company to discuss the matter. The clause requires there to be meetings of the committee at certain intervals, and addresses the composition requirements of the committee. It has not been established that this is a matter of company-wide significance. It involves the addition of three employees to an on-call roster. The dispute about the interpretation and application of clause 4.3.4 is resolved by this decision. Nevertheless, as I understand it, the matter will be discussed at the upcoming meeting. That is probably for the best.

Conclusion

[60] The answers to the questions that have been submitted by the parties for determination are as follows:

Question 1: Is the appointment of the three additional employees to the On-Call and Call Out Arrangements roster consistent with the requirement in clause 4.3.4 of the APA Network Agreement (Victoria & New South Wales) 2018 (Agreement) that the employer ‘nominate employees with sufficient skills and experience to be rostered within an area for on-call duties?

Answer: Yes (assuming the clause sets any ‘requirement’ at all in the current case).

Question 2: Does the decision by APT to add three additional employees to the On-Call and Call Out roster constitute ‘major change’ for the purpose of clause 1.8.1(a) or ‘change’ for the purpose of clause 1.8.1(b)?

Answer: No.

Question 3: Does clause 1.9 of the Agreement require APT to discuss the appointment of the three additional employees to the On-Call and Call Out roster with the consultative committee?’

Answer: No.

DEPUTY PRESIDENT

Appearances:

P Reilly for the AWU

A Deardon for APT AM Employment Pty Limited

Hearing details:

2019

Melbourne

June 26

Printed by authority of the Commonwealth Government Printer

<PR709687>

 1   AE501335

 2   Witness statement of Robert Davis, paragraph 42

 3   Ibid, paragraph 62

 4   Section 2.1, paragraph 4

 5   Witness statement of Mr Davis, paragraph 26

 6   Witness statement of Mr Francis, paragraphs 55 - 60; witness statement of Mr Foletta, paragraphs 66 - 73

 7   Witness statement of Mr Francis, paragraph 54

 8   Witness statement of Mr Davis, paragraph 100

 9   Ibid at 98

 10   Witness statement of Mr Davis, paragraph 11; RGD-2

 11   Witness statement of Mr Davis, paragraph 17

 12   RDG-5

 13   JLF4

 14   Witness statement of Mr Davis, paragraph 97

 15   Witness statement of Mr Foletta, paragraph 10

 16   Section 2.1, paragraph 4

 17   Witness statement of Mr Foletta, paragraph 80

 18   Witness statement of Mr Davis, paragraph 97

 19   Witness statement of Mr Davis, paragraphs 48 - 59

 20   Witness statement of Mr Davis, paragraph 62

 21   RGD-4