“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Alcoa of Australia Limited

[2014] FWC 3466

[2014] FWC 3466

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Alcoa of Australia Limited
(C2013/7473)

COMMISSIONER WILLIAMS PERTH, 30 MAY 2014

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

[1] This decision concerns an application made by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (the AMWU) under section 739 of the Fair Work Act 2009 (the Act). The respondent is Alcoa of Australia Limited trading as Alcoa World Alumina Australia (Alcoa).

[2] The application made is in regard to a dispute raised by the AMWU under clause 21 Resolution of Issues of the Alcoa World Alumina Australia W.A. Operations (Mechanical Trades) Agreement 2013 1 (the Agreement).

[3] There is no dispute between the parties that the Fair Work Commission (the Commission) does have jurisdiction to determine this matter and I am satisfied that this is the case.

[4] The question to be determined by the Commission is whetherAlcoa’s decision to direct its employees who are employed as shift workers, and who have been working for significant periods of time on a fortnightly shift pattern of 7 x 10.3 hour shifts (“the Employees”), to instead work on a fortnightly shift pattern of 9 x 8 hour shifts (“the Proposed Decision”), may be made unilaterally by Alcoa under the Agreementand is enforceable accordingly; or whether, to the contrary, the Proposed Decision is not open to Alcoa in the absence of agreement between the parties and, because there is no such agreement, the Proposed Decision accordingly may not lawfully be made or enforced.

Background

[5] Between January 2012 and February 2014, Alcoa sustained, as a consequence of earnings being insufficient to cover the operating costs for the Kwinana refinery, a loss of approximately $37 million.

[6] It is forecast that Alcoa will, unless significant, meaningful and sustainable change is implemented to reduce operating costs lose approximately $3 million for the first quarter of 2014. A review of refinery operations has led to the implementation of strategies intended to reduce operating costs. One of a number of areas where change is proposed is in increasing labour efficiency and reducing labour costs.

[7] To improve efficiency and reduce labour costs, Alcoa intend to change the allocation of employees amongst the current rosters.

[8] Currently employees are allocated to one of three shift rosters as follows:

(a) a continuous 5 panel 12 hour shift roster where employees work 12 hour shifts between 7.00am and 7.00pm for day shifts and 7.00pm and 7.00am for night shifts which are rostered across 7 days of the week (the 12 hour roster); or

(b) a 2 panel 10.3 hour shift roster where employees work an average of 7 x 10.3 hour shifts per fortnight between 6.30am and 4.48pm which are rostered across 7 days of the week including weekends and public holidays (the 10.3 hour roster or sometimes called the I&N roster); or

(c) a 9 day fortnight roster where employees work 9 x 8 hour day shifts between 7.00am and 3.30pm which are rostered Monday to Friday inclusive with each second Monday being a rostered day off - unless a public holiday falls on that rostered day off, in which case the rostered day off will be shifted to the following Monday (the 9 day fortnight roster).

[9] The current allocation of employees across the three rosters is:

(a) 30 employees working the 12 hour roster;

(b) 93 employees working the 10.3 hour roster; and

(c) 10 employees working the 9 day fortnight roster.

[10] Refinery management intend to change the allocation to be:

(a) up to 35 employees working the 12 hour roster;

(b) 30 employees working the 10.3 hour roster; and

(c) up to 68 employees working the 9 day fortnight roster.

[11] The re-allocation which is subject to final confirmation will result in:

Five employees being re-allocated to the 12 hour roster from the 10.3 hour roster; and up to 59 employees being re-allocated to the 9 day fortnight roster from the 10.3 hour roster.

[12] Alcoa accepts that the re-allocation of employees is a major change that will have a significant impact on employees and has undertaken a process of consultation with the employees as required by the terms of the Agreement 2.

[13] Information sessions were held for employees in March and June 2013 and meetings have been held with AMWU representatives in August and September 2013. Discussions and consultation continued in October and November 2013.

[14] On 29 November 2013 the AMWU made this application and the matter was the subject of a conciliation conference on 13 December 2013. The AMWU subsequently requested their application be arbitrated and the matter was heard on 10 March 2014.

The Agreement

[15] The relevant clause of the agreement is set out below.

“9. HOURS OF WORK

(a) Day Workers

(i) Ordinary hours will be an average of 36 per week to be worked on not more than five days in periods of eight hours continuously (except for meal breaks) between 7.00 am and 5.30 pm on Monday to Friday inclusive. However, day workers may be expected and required to work additional time, as and when necessary, to fully and effectively carry out their whole job on a day to day basis. Such additional time will not attract any payment.

(ii) The spread of hours or daily hours prescribed by paragraph (a) (i) above may be altered as to some or all employees by agreement between the

parties.

(iii) Meal breaks will be for a period of not less than 30 minutes and not more than 60 minutes. However, these breaks can be varied to accommodate individual or work group requirements.

(iv) Except in exceptional circumstances, an employee will not be required to work more than 5 hours without a break. However, where an employee is required to work more than 5 continuous hours, no additional payment will apply.

(b) Shift Workers

(i) “Day Shift” means a shift finishing on or before 8.00 pm.

(ii) “Afternoon Shift” means any shift finishing after 8.00 pm and at or before midnight.

(iii) “Night Shift” means any shift finishing after midnight and at or before 8.00 am.

(iv) Shifts will be worked by such method and at such times as the location requires. However, an established method of working shifts may be varied as to some or all employees by agreement between the parties.

(v) “Rostered Shift” means a shift of which the employee concerned has had at least 48 hours notice or lesser period by agreement between the parties. “Supplementary shift” means a shift in addition to normal rostered shifts worked pursuant to clause 18 to this Agreement.

(vi) “Continuous Shift Work” means work carried on with consecutive shifts of employees throughout the 24 hours of each of at least 6 consecutive days without interruption, except where due to breakdown or unavoidable causes beyond the Company’s control. “Seven Day Shift Work” means work that is regularly rostered on Saturdays, Sundays and Public Holidays as part of the ordinary hours roster.

(vii) “Supplementary Shift” means a shift in addition to normal rostered shifts worked pursuant to Clause 18 - Supplementary Labour to this Agreement.

(viii) Shift rosters will specify the normal commencing and finishing times of ordinary working hours of each shift. These times may be varied, as to some or all employees, by agreement between the parties. Failing such agreement, the matter will be dealt with in accordance with the Resolution of issues procedure set out in clause 21 - Resolution of issues of this Agreement.

(ix) The normal rostered hours for shift workers will not exceed twelve in any one day, inclusive of a 20 minute crib break, or an average of 36 hours per week over the shift cycle.

(x) All employees may be required to work additional time, as and when necessary, to fully and effectively perform their whole job on a day to day basis. Such additional time will not attract any payment.

(xi) Except at regular change-over of shifts, an employee will not be required to work more than one normal shift in each 24 hours or to work any longer than six hours during a shift without the crib break specified in paragraph (ix) above. However, there may be exceptional circumstances where an employee is required to work longer than six hours without a break. In these circumstances, such additional work will not attract any payment.

(c) Change of Shift Start and/or Finish Times

Notwithstanding anything else in this Agreement, in circumstances where Alcoa proposes a change in shift start and/or finish times and agreement has not been reached between the parties [ e.g. under subclauses 9(a)(ii) or 9(b)(iv) or 9(b)(viii)], any dispute shall be:

● Referred directly to stage 3 of the Dispute Resolution Process - i.e. subclause 21(b)iii)(3); and

● Determined on the facts, logic and merit of the change proposal.”

Submissions

The Applicant

[16] Alcoa’s proposed change could be characterised either as a change to the established method of working shifts for a group of the employees; namely, from the 10.3 hour roster shift pattern to a Nine Day Fortnight shift pattern or that Alcoa is no longer expecting a group of the Employees to work shift work and, as such, is changing the Employees to instead be day workers.

[17] The AMWU’s primary case is that the nature of the change is the former of the two possibilities and submits that, by virtue of clause 9(b)(iv) of the Agreement, Alcoa is not able to proceed with the proposed change unless it is agreed between Alcoa and the AMWU. The Parties are not in agreement about the proposed change.

[18] The AMWU’s alternative case is that if the proper characterisation of the change is the later of the possibilities in which case Alcoa is not able to implement the proposed change unless it is agreed between Alcoa and each employee to whom the change will apply. This is because it was a condition of the Employees’ contracts that they would be expected to work shift work. Alcoa is unable to unilaterally change the conditions of its bargain with each of the affected Employees without express agreement.

A Change to the Established Method of Working Shifts

[19] Clause 9(b)(iv) of the Agreement reads:

“Shifts will be worked by such method and at such times as the location requires. However, an established method of working shifts may be varied as to some or all employees by agreement between the parties.”

[20] The first sentence of clause 9(b)(iv) puts an obligation on the Employees to work shifts “by such method’ and “at such times” as “the location requires”.

[21] The AMWU submits that term “by such method” is a reference to the pattern of work engaged in by the Employees. The “method” (or pattern) of work describes the length (or duration) of the shifts on the roster, and the day on and day off cycle of the roster.

[22] The method of work refers not just to the day on and day off pattern on the roster, but also to the duration of the shifts on the roster.

[23] The term “and at such times” refers to the actual “shift start and/or finish times” that the Employees on a particular shift pattern will have to work.

[24] The AMWU submits that the use of the word “at” is significant in the determination of what the words “and at such times” mean. The use of word “at” shows that the parties did not intend for the words “and at such times” to be a reference to the duration of shifts to be worked by the Employees. Instead, the use of the word “at” gives purpose to the definitions of Day Shift (clause 9(b)(i)), Afternoon Shift (clause 9(b)(ii)), and Night Shift (clause 9(b)(iii)). The words “and at such times” creates a requirement for the Employees to work Day Shift, Afternoon shift or Night Shift, depending on the requirements of the location.

[25] The AMWU submits the words “and at such times” cannot be a reference to the duration of the shift. If the parties had intended to be referring to the duration of the shift, then they would have used the words “and for such times”.

[26] The AMWU submits that the second sentence of clause 9(b)(iv) of the Agreement operates to prevent Alcoa from changing an employee from an established method of working, to a new method of working, without the agreement between the Parties.

[27] The term “an established method of working shifts” is a reference to the method of working shifts that applies to some or all of the Employees, and which has previously been agreed to between the Parties.

[28] The current “established method of working shifts” for the affected Employees is the 10.3 hour or l&N Roster method.

[29] It is important to note that in order for a method of working shifts to become “established” it must have been agreed to (either expressly or tacitly) by the Parties.

[30] What the Parties meant by the words “the parties” can be ascertained by the words in clause 3 of the Agreement. Clause 3 of the Agreement describes the parties to the Agreement as:

“ ... Alcoa of Australia Limited (Hereafter referred to as “the Company”) on the one hand, and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (A F. M. E. P. K. I. U.) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (C.E.P.U.) on the other, as to members and persons eligible to be members of these Unions who are employed by the Company at the Alcoa World Alumina Australia, WA Operations in the Job Positions referred to in Appendix B of this Agreement.”

[31] The words “as to”, in clause 3 of the Agreement, operate to grant the AMWU and CEPU authority to act on behalf of their members, and those Employees who are eligible to be their members. As such, the AMWU submits that the parties for the purpose of clause 9(b)(iv) of the Agreement, and for this particular dispute, is Alcoa and the AMWU.

[32] The AMWU submits that clause 9(c) of the Agreement has no relevance to this particular dispute.

[33] The AMWU submits that in determining this matter in light of the facts, logic and merit involved, it is impossible for the Commission to ignore the requirement for there to be an agreement between the Parties before Alcoa can change the established method of working shifts for the affected Employees. The AMWU submits that the scope of the Commission’s jurisdiction under clause 21 can not extend to avoid the requirement for agreement to be reached between the parties in clause 9(b)(iv).

Alternative Case: Change from Shift Worker to Day Worker

[34] If the Commission determines that the nature of the change proposed by Alcoa is a shift from “Shift Worker” to “Day Worker” (which is denied by the AMWU), then the AMWU contends that Alcoa cannot implement such a change without the agreement of each individual employee who will be affected by that change.

Conclusion

[35] At first instance, the AMWU submits that the Commission should conclude that:

“In accordance with clause 9(b)(iv) of the Alcoa World Alumina Australia, WA Operations (Mechanical Trades) Agreement, 2013, Alcoa is unable to introduce its proposal to change the established method of working shifts of the affected Employees at its Kwinana refinery from the 10.3 hour or I&N Roster to a Nine Day Fortnight Roster, unless there is agreement to that change between the Parties”

[36] In the alternative, the AMWU submits that the Commission should declare that:

“Alcoa is unable to introduce its proposal to change the employees from Shift Workers (under clause 9(b) of the Agreement) to Day Workers (under clause 9(a) of the Agreement) unless each affected Employee agrees to modify the terms contained in their employment contract to reflect that there is no longer an expectation for those affected employees to be shift workers.”

The Respondent

Is agreement needed?

[37] Clause 9 of the Agreement provides for two separate categories of worker. Clause 9(a) deals with ‘Day Workers’ and 9(b) deals with ‘Shift Workers’.

[38] In reality this dispute relates to Alcoa’s intention to re-allocate some employees who are currently, for the purposes of the Agreement, ‘Shift Workers,’whose hours of work are subject to clause 9(b) of the Agreement, to be ‘Day Workers’,whose hours of work would then be subject to clause 9(a) of the Agreement.

[39] There are no terms of the Agreement which deal with the re-allocation of employees from work undertaken as ‘Shift Workers’to work undertaken as ‘Day Workers’or vice versa, or for that matter with the exception of clause 9(b)(v) - to the re-allocation of employees from one shift roster to another shift roster.

[40] The AMWU asserts that clause 9(b)(iv) is such a term. The assertion warrants an examination of what that clause is intended to achieve.

[41] The first sentence of clause 9(b)(iv) provides for the following:

‘Shifts will be worked by such method and at such times as the location requires.’

[42] The reference to ‘Shifts’in the first sentence of Clause 9(b)(iv) of the Agreement means a particular instance of rostered work such as a day shift, afternoon shift or night shift.

[43] This interpretation is supported by the definitions included in subclauses 9(b)(i) to (iii) inclusive.

[44] The word ‘method’ in clause 9(b)(iv) means “a way of doing something, especially in accordance with a definite plan”

[45] Having regard to that definition, ‘method’is the way in which the ‘shifts’are planned to establish a roster for groups of employees and encapsulates:

(a) the type of shifts that are worked (e.g. day, afternoon and/or night shifts);

(b) the duration of those shifts (e.g. 12 hours, 10.3 hours, or 8 hours);

(c) whether the shifts are scheduled continuously or non-continuously (e.g. continuous or non-continuous shift work); and

(d) the recurring pattern (where applicable) of those shifts (e.g. the ordering of rostered shifts and rostered time off). 3

[46] The words ‘ at such times...’meanthe start and finish times of those `shifts’

[47] The words ‘....as the location requires’self-evidently mean that the methods of working shifts and the times that such shifts are to start and finish are to be established by Alcoa to suit the operational requirements of the particular location concerned, in this case the Kwinana refinery.

[48] The words ‘...an established method of working shifts...’ meanan existing or previously implemented method of working shifts, which would include the existing 12 hour roster and the 10.3 hour shift roster.

[49] The fact that clause 9(b)(iv) falls under the heading of ‘Shift Workers’is indicative of an intention that it should only have application to workers engaged as such.

[50] The intended operation of clause 9(b)(iv) is to be contrasted with the effect of clause 9(c), which provides for changes to start and/or finish times, which clearly has application to both Day Workers and Shift Workers.

[51] The words `...may be varied as to some or all employees by agreement between the parties’mean that an existing or previously implemented method of working shifts, which is or has been worked by some or all employees who are covered by the Agreement, may be varied by agreement.

[52] A variation of the existing or previously implemented method of working shifts, if the words of the second sentence of clause 9(b)(iv) are accorded their ordinary or usual meaning, contemplates a variation to that particular established method of working shifts.

[53] Having regard to the current arrangements at the Alcoa Kwinana refinery, the proper operation of clause 9(b)(iv) is to allow the parties to agree to vary the 12 hour roster or the 10.3 hour roster in the following ways:

(a) the type of shifts that are worked (e.g. the introduction of afternoon or night shifts onto the 10.3 hour roster);

(b) the duration of those shifts (e.g. 12 hours, 10.3 hours, or 8 hours);

(c) whether the shifts are scheduled continuously or non-continuously; and

(d) the recurring pattern (where applicable) of those shifts (e.g. the ordering of rostered shifts and rostered time off),

[54] The variation of an existing or previously implemented method of working shifts that some or all employees may be working is not the same as re-allocating employees from one shift to another.

[55] It is apparent from the preceding analysis that clause 9(b)(iv):

a) does not apply to the re-allocation of an employee from Shift Work to Day Work, or vice versa;

b) does not apply to the re-allocation of an employee from one shift to another (ie. from the 10.3 hour roster to the 12 hour roster); and

c) relates only to circumstances where the established method of working a shift roster, as applicable to Shift Workers covered by clause 9(b) of the Agreement, is itself varied i.e. if an established 12 hour or 10.3 hour roster itself was varied in any respect other than a change specifically contemplated by other clauses of the Agreement.

[56] The capacity of Alcoa to unilaterally re-allocate employees from undertaking work as a Shift Worker to undertaking work as a Day Worker is subject only to:

(a) it complying with the consultation requirements detailed in Clause 29 of the Agreement and within the ‘Model Consultation Clause’ as taken to be a term of the Agreement as a consequence of the decision issued by the Fair Work Commission on 23 July 2013 which has occurred; and

(b) the change not being prevented by the existing contracts of employment entered into by Alcoa and the relevant employees who may be affected by the proposed re-allocation.

[57] The interpretation advanced by the AMWU, namely, that the second sentence of the clause 9(b)(iv) prevents the re-allocation of a Shift Worker to be a Day Worker, or presumably to another shift roster, is simply wrong.

[58] The AMWU’s interpretation of clause 9(b)(iv) would result in an unintended outcome, whereby clause 9(b)(v) would not serve its intended operational purpose.

[59] As is apparent from the AMWU’s submissions, the relevant wording has existed within the industrial documentation applicable to the parties at least back to 1982 and potentially as far back as the mid 1960s. As such, there is no foundation for asserting any common intention of the parties arising from the negotiations.

[60] In contrast, Alcoa’s interpretation gives operational meaning to clause 9(b)(v) by providing a unilateral right, which is exercisable on 48 hours’ notice (and which has been historically exercised without challenge to:

(a) allow for the re-rostering of an employee to meet operational requirements;

(b) move an employee from one panel of a shift roster to a different panel; or

(c) provide for employees to be moved from one shift roster to another with the provision of notice.

[61] This operation of clause 9(b)(v) is also supported by the terms of some of the contracts of employment which confirm an agreement between Alcoa and the relevant employees that changes in roster can occur and that where such a change is required, Alcoa will provide at least 48 hours’ notice.

[62] The Commission ought conclude that the re-allocation of employees from the 10.3 hour roster to the 9 day fortnight roster is not prevented by clause 9(b)(iv) of the Agreement, on the basis that it simply doesn’t deal with that issue.

[63] Clause 9(c) of the Agreement is, on Alcoa’s argument, irrelevant. It is not concerned with the re-allocation of employees.

The Contracts of Employment

[64] Notwithstanding the terms of the AMWU’s Question for Determination, the AMWU appears to suggest, based on limited excerpts from a limited sample, that the relevant contracts of employment would, even if the Commission concludes that clause 9(b)(iv) does not relate to the transitioning of an employee from work performed pursuant to clause 9(b) of the Agreement to clause 9(a) of the Agreement, prevent the re-allocation of employees. Such consideration is no part of the Question for Determination, when properly construed.

[65] Nonetheless, if the Commission is minded to consider the matter notwithstanding its lack of relevance, Alcoa submits that a proper examination of the relevant contracts of employment demonstrate that they cannot have the effect wrongly asserted by the AMWU.

[66] The re-allocation of employees from a 10.3 hour shift roster to a 9 day fortnight roster is not prevented by the terms of the relevant contracts of employment.

[67] The contracts of employment for any affected employees (i.e. those employees currently working pursuant to the 10.3 hour shift roster and who may be affected by the proposed re-allocation of employees) provide for the following:

(a) 74 of the 77 contracts reviewed include a term requiring the employees who are party to the contract to perform work on ‘permanent days’ or day shift.

(b) 63 of the 77 contracts reviewed include terms which confirm that the working of shiftwork will be as required by the Company from time to time (with the remaining employees captured in the group referred to in (a) above.

(c) 46 of the 77 contracts reviewed provide for a change in position and/or duties following consultation.

[68] The terms of the contracts entered into by Alcoa and its employees are consistent with an ability for Alcoa to direct an employee to attend for the performance of work as a Day Worker. There is nothing in the terms of any of the relevant contracts which would prevent such a direction, which would in any event be a lawful and reasonable direction.

Conclusion

[69] Alcoa submits that the answer to the Question for Determination must be that the decision of Alcoa to re-allocate its employees, who are covered by the Agreement and who are currently working the 10.3 hour shift roster to a 9 day fortnight roster:

(a) does not require the Agreement of the Applicant;

(b) is not prevented by the Agreement;

(c) is not, to the extent it is relevant having regard to the Question for Determination prevented by the relevant contracts of employment; and

(d) is, accordingly, enforceable.

Consideration

[70] The critical factual background to this matter is agreed.

[71] Alcoa at the Kwinana refinery has for some time operated three different shift arrangements.

[72] The details of these are explained above. The three arrangements are known as the 12 hour roster, the 10.3 hour roster and the 9 day fortnight roster.

[73] Alcoa is not proposing that these arrangements change. What Alcoa is proposing is that the number of employees working on each of these shift arrangements changes.

[74] Alcoa’s Proposed Decision involves five employees who have been working on the 10.3 hour roster moving onto the 12 hour roster and moving approximately 59 employees who have been working on the 10.3 hour roster onto the 9 day fortnight roster.

[75] The AMWU argue that the effect of clause 9(b)(iv) of the Agreement is that Alcoa cannot action the Proposed Decision unless this is agreed between Alcoa and the AMWU.

[76] This clause in the agreement reads as follows,

“(iv) Shifts will be worked by such method and at such times as the location requires. However, an established method of working shifts may be varied as to some or all employees by agreement between the parties.”

[77] The question is whether this clause applies to Alcoa’s Proposed Decision.

[78] It is the second sentence of clause 9(b)(iv) that is critical. The question is whether the proposed decision is a variation of an established method of working shifts and so requires agreement between the parties.

[79] The parties have referred to the decision of the Commission as currently constituted in Alcoa of Australia Ltd v The Australian Workers’ Union. 4 That decision, whilst dealing with a different proposed change by the respondent, considered the terms of another agreement applicable to this respondent and a term of that agreement, 10.3(a)(iii) , which is similar to, but not identical with, clause 9(b)(iv) which the applicant in this matter relies upon. In that earlier decision it was explained that,

“[98] The AWU argues that clause 10.3(a)(iii) is applicable to Alcoa’s proposal and requires that all new panel structures can only be implemented if the parties agree.

[99] Clause 10.3 Shift Workers opens as follows:

“10.3 Shift Workers

(a) Subject to the other provisions herein prescribed, the following shall apply;

(i) “Afternoon Shift” means any shift finishing after 8.00 pm and at or before midnight.

(ii) “Night Shift” means any shift finishing after midnight and at or before 8.00am.

(iii) Shifts will be worked by such method and at such times as the Operation requires. These may be varied as to some or all employees by agreement between the parties.

(iv) “Rostered Shift” means a shift of which the employee concerned has had at least 48 hours notice. This period may be reduced by agreement between the parties. For the purpose of this clause, “rostered shifts” means the shifts established by the roster for each particular system of shift work including, where applicable, rostered shifts on weekends and public holidays.

(v) “Continuous Shift Work” means work carried on with consecutive shifts of employees throughout the 24 hours of each of at least 6 consecutive days without interruption, except where due to breakdown or unavoidable causes beyond the Company’s control. “Seven Day Shift Work” means work that is regularly rostered on Saturdays, Sundays and Public Holidays as part of the ordinary hours roster.

(b) Shift rosters will specify the normal...”

[100] It is not obvious, as is submitted by the AWU, that 10.3(a)(iii), which refers to the method shifts will be worked and their times, deals with panel structures at all.

[101] Method means “a way of doing something, especially in accordance with a definite plan.”

[102] It seems then that “Shifts will be worked by such method...” in 10.3(a)(iii) refers to the way shifts will be worked. Considering the context of the other paragraphs in clause 10 “method” means whether shifts are worked as days, afternoon or nights, whether they are worked as Continuous Shift Work or Seven Day Shift Work and their sequencing. Different “methods” by which shifts might be worked could be, 12 hour continuous shifts alternating day and night, 8 hour shifts day and afternoon only, or a permanent 8 hour day shift. The words “...and at such times...” in clause 10.3(a)(iii) then refers to a shifts start and finish times.

[103] Panel structures are not the same as the method by which shifts will be worked. Panel structures are developed from manning and rostering decisions which determine how many shifts employees will work, how many days off they have and in what sequence given a particular method of working shifts.

[104] Panel structures would commonly be formulated after the method and times of shifts are settled and after decisions are made to do with the manning of these shifts. Regardless of the process of designing a method of working shifts, their start and finish times and a panel structurethe words of 10.3(a)(iii) do not on a proper construction on their plain meaning extend to requiring the agreement of the parties on new panel structures.

[105] Clause 10.3(a)(iii) does not have application to matters beyond the method by which shifts will be worked and the times shifts will be worked.”

[80] In my view the conclusions and explanations in paragraphs [101] and [102] of that decision are equally applicable to the words used in this Agreement at clause 9(b)(iv).

[81] In this current matter the three shift arrangements are not being varied. The Proposed Decision will not change whether the shifts are worked as days, afternoon or nights, nor whether they are worked as Continuous Shift Work or Seven Day Shift Work nor will the sequence of days worked and days not worked change. In my view there will be no change to the way shifts will be worked if the Proposed Decision is implemented. The Proposed Decision does not involve a variation to the established methods of working shifts.

[82] Certainly there will be a change for some employees as a result of Alcoa’s Proposed Decision. However clause 9(b)(iv) is concerned with the method of working shifts not how many employees are working on particular shift rosters.

[83] My decision is that clause 9(b)(iv) does not have application to the Proposed Decision of Alcoa.

[84] Regarding the alternative submission of the AMWU, that the employees contracts only allow this proposed change where the individual employees have agreed, I agree with Alcoa’s submission that this alternative argument relies on a doubtful interpretation of the second part of the question to be determined in this dispute.

[85] I note the second part of the question to be determined refers to agreement between the “parties” (which the AMWU has earlier argued refers to Alcoa and the unions named) not to individual employees at all. My reading of the second part of the question to be determined is that it is no more than the corollary of the first part of that question and not the identification of a second source of dispute. Consequently in my view having decided as I have that the Proposed Decision may be made unilaterally by Alcoa and is enforceable accordingly there is no need to answer the second part of the question to be determined.

[86] If however I am wrong in that then the onus is on the AMWU to prove, as they have submitted is the case, that it was a condition of each employee’s employment contract that they would work shift work. This is the basis of the AMWU’s alternative submission, that because of this term in their contracts Alcoa is unable to unilaterally change their working arrangements such that they are no longer working shift work.

[87] The evidence the AMWU has put before the Commission only concerns a very small number of the affected employees. Opposing this in an evidentiary sense is Mr Boni’s evidence which demonstrates that a larger number of employees, being the vast majority of the employees affected, have terms in their contracts that do not support the AMWU’s submission but rather are terms that recognise the potential for the employee to work on either day work or shift work as may be required or some variation of this.

[88] Considering this evidence regarding the contractual terms of the employees I am not satisfied that the AMWU has been able to make out its case in terms of their being real evidence that the contracts of the Employees prevents this Proposed Decision occurring without their individual agreement.

Conclusion

[89] The question to be determined by the Commission is whetherthe Proposed Decision by Alcoa to direct its employees who are employed as shift workers, and who have been working for significant periods of time on a fortnightly shift pattern of 7x 10.3 hour shifts to instead work on a fortnightly shift pattern of 9x 8 hour shifts may be made unilaterally by Alcoa under the Agreementand is enforceable accordingly?

[90] The answer to this question is - Yes.

[91] As to whether the Proposed Decision is not open to Alcoa in the absence of agreement between the parties and, because there is no such agreement, the Proposed Decision accordingly may not lawfully be made or enforced?

[92] The answer to this question is - No.

COMMISSIONER

Appearances:

R Hooker representative for the Applicant

M Power representative for the Respondent

Hearing details:

2014.

Perth:

March 10

Final written submissions:

Applicant, 7 February 2014

Respondent, 28 February 2014

 1   AE402545

 2   Both under Clause 29 - Consultation and per the Model consultation clause

 3   Alcoa of Australia Ltd v The Australian Workers' Union[2012] FWA 9172

 4   [2012] FWA 9172

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