“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Anglo Coal (Dawson Services) Pty Ltd
[2023] FWC 3400
•18 DECEMBER 2023
| [2023] FWC 3400 |
| 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
Anglo Coal (Dawson Services) Pty Ltd
(C2023/5807)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 18 DECEMBER 2023 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
This Decision concerns an application made on 5 June 2023 by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (AMWU/the Union) pursuant to s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute under the dispute resolution procedure in the Dawson Mines Collective Enterprise Agreement 2021 (the Agreement). The application is made by the CFMEU on behalf of its members. The Respondent is Anglo Coal (Dawson Services) Pty Ltd (Brisbane) (the Respondent/Anglo Coal).
Agreed Question for Arbitration
The agreed question for arbitration is as follows:
Were members of the Workshop Maintenance Workforce, who were working pursuant to an individual flexibility arrangement (the effect of which changed their working hours to a 7/7 Day Night Roster), part of the affected workforce for the purposes of a vote to change the base roster of the Workshop Maintenance Workforce from a 3/3/6 Day Night Roster to a 7/7 Day Night Roster?
Legislation
The Act provides for the Commission to deal with disputes in relation to disputes under enterprise agreement dispute settlement terms. Section 739 of the Act states:
“739 Disputes dealt with by the FWC
(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.
(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:
(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.
Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).
(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) The FWC may deal with a dispute only on application by a party to the dispute.”
It is uncontested and clear in respect of the material before me that the Commission has the jurisdiction to arbitrate this dispute.
Permission to appear
The Respondent sought to be represented before the Commission by a lawyer, the Applicant was the AMWU.
Relevantly, section 596(1) of the FW Act provides that a party may be represented in a
matter before the Commission by a lawyer or paid agent only with the permission of the
Commission.
Section 596(2) provides that the Commission may grant permission for a person to be represented by a lawyer or paid agent in a matter before the Commission only if:
(a) it would enable the matter to be deal with more efficiently, taking into account the
complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is
unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account
fairness between the person and other persons in the same matter.
The decision to grant permission is not merely a procedural step but one which requires
consideration in accordance with s.596 of the FW Act.1 The decision to grant permission is a
two-step process. First it must be determined if one of the requirements in s.596(2) have been
met. Secondly, if the requirement has been met, it is a discretionary decision as to whether
permission is granted.[1]
I considered the submissions made by the Respondent on 3 November 2023 on the basis that:
· allowing the Respondent to be represented by a lawyer would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; and
· the Applicant had no objection to the Respondent being represented by a lawyer.
Accordingly, at the hearing on 23 November 2023, the Respondent was represented by Mr James Hall of Ashurst.
Background
The relevant Agreement is set out in the first paragraph of this decision.
At all material times, the Agreement covered and applied to the Respondent and its employees engaged as mine employees.
The Respondent employs production and engineering employees at the Dawson Mine (the Mine). The Mine is an open cut metallurgical and thermal coal mine that runs on a 24/7 basis. The open cut operation produces coal through the use of various equipment, including draglines trucks, excavators, shovels and ancillary equipment such as bulldozers, watercarts, loaders and graders. The Workshop Maintenance Workforce maintains the equipment used in the open cut operations.
Relevant Provisions of the Agreement
Clause 2.4.4 of the Agreement states:
“2.4.4 Shift Work
(a) Employees may be required at Dawson’s discretion to work shift work according to the shift arrangements advised to them to meet Dawson’s operational requirements. Indicative rosters and shift arrangements are outlined in Attachment 1. Dawson reserves the right to change these to meet its operational or business needs.
(b) Prior to any change in roster that includes more than 3 consecutive night shifts greater than 10 hours Dawson will consult and seek agreement with the majority of the affected workforce.”
(emphasis added)
Clause 5.1 provides the dispute resolution procedure. It states:
“5.1 Disputes Resolution
5.1.1In the event of any dispute arising under this agreement, the National Employment Standards or in the course of employment, work shall continue in accordance with the reasonable direction of management.
Step 1
Where there is a dispute over matters arising under this Agreement, the National Employment Standards or in the course of employment, it shall be discussed between the relevant Employee and their immediate supervisor. The Employee and their immediate supervisor shall agree to a reasonable timeframe to meet and confer on the matter. This should be the principal level for the resolution of disputes. The Employee may elect to have a nominated Employee representative present at these discussions.
Step 2
Should the matter remain unresolved, the Employee and their supervisor will arrange for further discussions between the Employee, a nominated Employee representative (if requested by the Employee) and the Employee’s superintendent.
Step 3
Should the matter remain unresolved, a meeting shall be arranged for further discussions between the Employee, a nominated Employee representative (if requested by the Employee) and the Employee’s manager or his/her nominee.
Step 4
Should the matter remain unresolved, the Employee may elect to have the matter discussed between senior management or their nominee, and a state official of the Employee’s Union.
Step 5
Should a resolution not be reached and the dispute has arisen from the terms of this Agreement or the National Employment Standards, the matter may be referred by any of the Parties to Fair Work Commission for conciliation. Where resolution is reached before the Fair Work Commission, it shall be promptly implemented and complied with by the Parties.
5.1.2Should a resolution not be reached and the dispute has arisen from the terms of this Agreement or the National Employment Standards, the matter may be referred by any of the Parties to Fair Work Commission, for determination through arbitration.
5.1.3It is the intention of the Parties that in fulfilment of Step 5, the Fair Work Commission shall exercise the functions and powers normally associated with conciliation and arbitration.
5.1.4Should any of the Parties be of the view that the matter at any level is not being progressed in a timely manner, it may be escalated to the next step upon reasonable notice being provided to the other party.”
Clause 5.5 provides for individual flexibility arrangements. It says:
“5.5 Individual Flexibility
5.5.1 An employer and employee covered by this enterprise agreement may agree to make an individual flexibility arrangement to vary the effect of terms of the agreement if:
(a) the agreement deals with 1 or more of the following matters:
(i)arrangements about when work is performed;
(ii)overtime rates;
(iii) penalty rates;
(iv) allowances;
(v) leave loading;
(vi) unpaid parental leave can be extended for a period of up to three (3) years;
(vii) flexible work arrangements on either a return to work immediately following parental leave or within three (3) years following the birth/adoption of the Employee’s child can be implemented; and
(viii) annual leave can be taken over a longer period of time with payment at a pro rata rate; and
(b)the arrangement meets the genuine needs of the employer and employee in relation to 1 or more of the matters mentioned in paragraph (a); and
(c)the arrangement is genuinely agreed to by the employer and employee.
5.5.2 The employer must ensure that the terms of the individual flexibility arrangement:
(a)are about permitted matters under section 172 of the Fair Work Act 2009; and
(b)are not unlawful terms under section 194 of the Fair Work Act 2009; and
(c)result in the employee being better off overall than the employee would be if no arrangement was made.
5.5.3The employer must ensure that the individual flexibility arrangement:
(a)is in writing; and
(b)includes the name of the employer and employee; and
(c)is signed by the employer and employee and if the employee is under 18 years of age, signed by a parent or guardian of the employee; and
(d)includes details of:
(i) the terms of the enterprise agreement that will be varied by the arrangement; and
(ii) how the arrangement will vary the effect of the terms; and
(iii)how the employee will be better off overall in relation to the terms and conditions of his or her employment as a result of the arrangement; and
(e) states the day on which the arrangement commences.
5.5.4The employer must give the employee a copy of the individual flexibility arrangement within 14 days after it is agreed to.
5.5.5The employer or employee may terminate the individual flexibility arrangement:
(a)by giving no more than 28 days written notice to the other party to the arrangement; or
(b) if the employer and employee agree in writing—at any time” (Emphasis added)
Agreed Facts for the purposes of these proceedings
Most production workgroups that perform the open cut operations at the Mine work on a “7 days on/7 days off/7 nights on/7 nights off roster” (7/7 Day Night Roster). Prior to the vote to change the base roster of the Workshop Maintenance Workforce, the applicable roster for the Workshop Maintenance Workforce was a “3 days on/3 nights on/6 off roster” (3/3/6 Day Night Roster). However, some employees worked in accordance with a 7/7 Day Night Roster pursuant to an individual flexibility arrangement (IFA).
In July 2023, the Mine proposed to change the Workshop Maintenance Workforce roster from the 3/3/6 Day Night Roster to the 7/7 Day Night Roster. The 7/7 Day Night Roster incudes more than 3 consecutive night shifts greater than 10 hours.
A vote on whether to implement the 7/7 Day Night Roster proposal was held in August 2023. At the time of the vote, 26 employees were employed in the Workshop Maintenance Workforce, 18 of whom worked a 7/7 Day Night roster pursuant to IFAs.
The Respondent included the Workshop Maintenance Workforce employees who worked pursuant to IFA in the vote.
The results of the vote were:
· 15 employees voted to approve the 7/7 Day Night Roster;
· 9 employees voted against the 7/7 Day Night Roster; and
· 2 employees abstained.
The Respondent implemented the 7/7 Day Night Roster for the Workshop Maintenance Workforce on 16 and 18 October 2023.
Regardless of the outcome of the vote, IFA employees continued to perform work pursuant to their IFAs provided the IFAs remained in operation. If an IFA was terminated before the vote, the relevant employee would have worked in accordance with the 3/3/6 Day Night Roster. If an IFA was terminated from 16-18 October, the employee would have continued to work in accordance with the 7/7 Day Night Roster.
Dispute resolution history
On 23 July 2023, Mr Dillon West of the AMWU notified Mr Luke Wilkie (Engineering and Maintenance Manager of the Respondent) of the dispute. The following day, Mr West confirmed that the dispute had been raised on behalf of the AMWU’s members employed in Workshop Maintenance Workforce, and that the dispute had reached Step 3 of the dispute resolution process in accordance with clause 5.1.1 of the Agreement.
Mr West and Mr Marcel Carson of the AMWU met with Mr Ben Leis (HR Manager of the Respondent) and Mr Wilkie to further discuss the matter on 25 July 2023. The matter remained unresolved, and the parties agreed to progress to Step 4 of the dispute resolution process. Accordingly, on 9 August 2023, Mr West and Mr Philip Golby (AMWU Organiser) met with Mr Leis and Mr George Karooz (Site Senior Executive of the Respondent). Mr Leis advised on 1 September 2023 that the dispute could not be resolved.
On 28 September 2023, the AMWU made this application to the Commission to deal with the dispute, in accordance with Step 5 of the dispute resolution procedure.
Applicant’s Submissions
The Applicant’s primary submission was that a worker will not be part of the “affected workforce” if the outcome of the vote does not produce a change in that worker’s roster.
In making this submission, the Applicant considered the ordinary meaning of the words “affected workforce”, with particular focus on the adjective “affected”. The Applicant cited Macquarie dictionary, which defines “affected” as:
(a) acted upon or influenced; or
(b) influenced injuriously.
Based on this definition, the Applicant submitted that a worker is not part of the “affected workforce” unless there is an action or impact on their roster.
The Applicant considered the context of the words “affected workforce” and the Agreement clause in which they appear. It submitted that the broad context of clause 2.4.4 is that it sets out:
(a) The Respondent’s ability to require employees to perform shift work;
(b) the Respondent’s ability to add or change rosters;
(c) the requirement that the Respondent consult with and reach agreement with majority of the affected workforce;
(d) the requirement that the Respondent provide minimum periods of notice for change of roster or change of crew.
The Applicant highlighted that the Agreement was made in a legislative context where Modern Awards and Enterprise Agreement explicitly require consultation with workers around a change of roster, pursuant to ss.145A and 205(1A) of the Act. Those sections relevantly state:
“145A Consultation about changes to rosters or hours of work
(1) Without limiting paragraph 139(1)(i), a modern award must include a term that:
(a) requires the employer to consult employees about a change to their regular roster or ordinary hours of work”.
…
“205 Enterprise agreements to include a consultation term etc.
…
(1A) For a change to the employees’ regular roster or ordinary hours of work, the [consultation] term must require the employer:
(a) to provide information to the employees about the change; and
(b) to invite the employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities); and
(c) to consider any views given by the employees about the impact of the change.”
In the context of the above provisions, the Applicant submitted that workers already performing work on the 7/7 Day Night Roster pursuant to their respective IFAs have already been impacted by the change provided by the outcome of the vote, and are therefore not part of the affected workforce. This is because, in the Applicant’s submission, a worker is impacted from when a decision is made, or a change is implemented. In making this submission, the Applicant referred to the decision of the Full Bench drafting the Modern Award consultation provisions, which stated that interpreting the obligation to consult in s.145A of the Act such that the obligation “could be satisfied after a definite decision has been made or after a change had been implemented would be antithetical to its legislative purpose”.[2]
The Applicant rejected the Respondent’s position that the future possibility of change means a worker is part of the affected workforce, as it stated that interpretation would be inconsistent with the Full Bench’s decision that a worker is impacted from when the change is implemented. The Applicant submitted that where a ballot of the affected workforce is to occur, members of the affected workforce are to be determined by whether the outcome of the vote would lead to a change in a worker’s roster.
The Applicant submitted that the assessment of the affected workforce should be dealt with by reference to the potential outcomes of the vote on workers already working a 7/7 Day Night Roster. In that sense, the Applicant rejected the Respondent’s argument that because a successful vote would affect the underlying rosters of employees and would have the effect of cancelling IFAs (it was the Respondent’s stated intention to cancel IFAs if the vote was successful), those employees are necessarily “affected”. The Applicant submitted that even where the IFAs are cancelled, as the employees would continue working in accordance with the 7/7 Day Night Roster regardless of the result of the vote, “practically nothing changes” for those employees. They therefore cannot be considered “affected”.
Given the number of employees already working the 7/7 Day Night Roster at the time of the vote, the Applicant stated that it was reasonable to infer that the vote would not have succeeded without the inclusion of those workers in the ballot. On that basis, the Applicant sought a determination that workers already engaged on the 7/7 Day Night Roster were not part of the affected workforce, a determination that the August 2023 vote be invalidated, and an order that any workers not performing the 7/7 Day Night Roster under an IFA be returned to their original roster.
Witness Statement of Philip Golby
Mr Golby is the Applicant’s organiser at the relevant site and has been since at least 2008. Mr Golby gave evidence that the Respondent has been attempting to implement a 7/7 Day Night Roster since at least June 2022. He stated he was aware that the Respondent had moved some employees to the 7/7 Day Night Roster pursuant to IFAs, and provided a copy of a job advertisement of the Respondent which indicated that a 7/7 Day Night Roster option was available.
A copy of the results of the August 2023 vote were provided to Mr Golby and were exhibited. The results indicate that 15 of the 26 Workshop Maintenance Workforce employees voted to approve the 7/7 Day Night Roster, 9 voted against and 2 abstained.
On 9 August 2023, Mr Golby attended a meeting with Mr West, Mr Leis and Mr Karooz in accordance with Step 4 of the Agreement’s dispute resolution process. Mr Golby stated that at this meeting, he enquired whether any workers included in the August 2023 vote were working the 7/7 Day Night Roster under an IFA, and that Mr Leis informed him that 17 workers were working the roster under an IFA.
Mr Golby stated that the matter remained unresolved and that he informed Mr Leis on 1 September 2023 that the dispute would be referred to the Commission.
Respondent’s Submissions
The Respondent submitted that the Applicant’s construction of the phrase “affected workforce” is overly narrow and does not have sufficient regard to the purpose of the clause and the context of the Agreement. The Respondent submitted three bases on which it considered the Applicant’s interpretation should be rejected.
First, the Respondent submitted that the IFA employees are part of the affected workforce because the vote concerns the base roster for the entire Workshop Maintenance Workforce. The IFA employees’ interest in base roster lies in the fact that if the outcome of the vote results in the termination of the IFAs, the relevant employees’ rosters revert to the base roster. The Respondent outlined a hypothetical scenario where the Respondent wanted to change the 3/3/6 Day Night Roster to a 14/14 Day Night Roster and where the employees not on IFAs supported the proposal, but the IFA employees do not support it. In this situation, the proposal would be successfully implemented by excluding the IFA employees from the vote. Then, under the Applicant’s construction, if the Respondent terminated the IFAs, the former IFA employees would transition to a 14/14 Day Night Roster that they opposed but were not entitled to vote on. The Respondent submitted that this scenario demonstrates that IFA employees are affected, as even though they do not work according to the underlying roster, they are subject to it, given that IFAs may be terminated by the Respondent.
Second, the Respondent argued that the outcome of the vote affected IFA employees, even while they remained on IFAs. The Respondent referred to the Applicant’s submission that on the ordinary meaning of “affected workforce”, there must be an action or impact on employees’ rosters. In the Respondent’s view, this interpretation is too narrow, as there may be an action or impact on an employee that does not necessarily impact that employee’s roster. To illustrate the point, the Respondent stated that the implementation of the 7/7 Day Night Roster for non-IFA employees impacts the IFA employees in terms of the arrangement and structure of work and crew continuity, which then impacts crew chemistry, unity, training and development. In that sense, the Respondent submitted that the IFA employees are “affected” by the implementation of the Roster. At the hearing, in response to the Applicant’s contention that these impacts could possibly extend to contractors and labour hire employees, the Respondent stated this argument ignores the principles of agreement coverage; in no circumstances could contractors or labour hire employees be consulted about roster changes.
Finally, the Respondent submitted that the Agreement recognises that roster changes can be significant for employees, and it is for that reason that the Agreement requires the “affected workforce” to be consulted for certain proposed changes. In the Respondent’s view, all members of the Workshop Maintenance Workforce are impacted, at least indirectly, by changes to rosters, and that a broad interpretation of “affected” should therefore be preferred. The Respondent referred to Re Australian Education Union,[3] which, while not directly relevant, construed the term “affected employees”, stating that it means:
“Those affected in some way by the making of an order. That effect can be as broad as simply influenced or impaired in some way.”
In response to the Applicant’s reliance on the Full Bench’s decision drafting the Modern Award consultation provisions, the Respondent submitted the Full Bench had not been asked to define who is “affected” by roster changes, and therefore its decision cannot be authority for the current dispute. At the hearing, the Respondent submitted that the decision merely outlines when consultation should occur, and not who is affected by a particular change.
Ultimately, the Respondent submitted that the broader impacts of the August 2023 votes on employees, including IFA employees, mean that those employees are part of the affected workforce.
Witness Statement of Benjamin Leis
Mr Leis is the Human Resources Manager at the Respondent’s Dawson Mine. His statement was not contested.
Mr Leis submitted evidence that the majority of production workgroups that worked for the Respondent are on a 7/7 Day Night Roster. Prior to July 2023, the Respondent maintained a roster which applied to the Field Maintenance and Workshop Maintenance workgroup which was the 3/3/6 Day Night Roster. Mr Leis submitted that the 3/3/6 Day Night Roster presented issues with attraction and retention of talent. Mr Leis submitted that it was necessary for the Respondent to offer both existing and prospective employees (at their request) the opportunity to work a roster which suited them, this was the 7/7 Day Night Roster. The Respondent addressed this issue by offering employees in the Workshop Maintenance workgroup IFA’s. This assisted the Respondent in retaining and attracting trades people for the Maintenance Workshop workgroup, while the base roster retained the 3/3/6 Day Night Roster.
In July 2023, following a petition, the members of the Field Maintenance workgroup voted to change the 7/7 Day Night Roster. Ten out of 13 employees from the workgroup voted to approve.
In August 2023 the Respondent requested that the Workshop Maintenance workgroup vote on whether to change the 7/7 Day Night Roster. 15 out of 26 of the workgroup employees voted to approve. The 7/7 Day Night Roster was implemented in October 2023. At the time of the vote eight (8) members of the workgroup were on the 3/3/6 Day Night Roster and 18 members were on the 7/7 Day Night Roster pursuant to IFA’s entered into. Employees whose working arrangement had been changed pursuant to an IFA were asked to vote on the roster change.
The Respondent included IFA employees when the Workshop Maintenance roster vote from a 3/3/6 to 7/7 Day Night Roster was conducted. This is because the Respondent considered the IFA employees to be affected by the outcome of the vote.
Mr Leis submitted that the IFA employees were affected by the vote for the following reasons.
Employees on the 7/7 Roster Day Night pursuant to an IFA already have insecurity in their workplace arrangements because their respective IFA’s can be terminated on notice by the Respondent. As IFA employees are subject to the workgroup’s base roster, any change to that base roster affects them.
In order for the Mine to retain and attract talent, the Respondent found it necessary to offer a 7/7 Day Night Roster in the maintenance area. As a consequence, two thirds of the workgroup had working arrangements in accordance with an IFA which allowed an employee to work a 7/7 Roster Day Night, while the remaining members of the workgroup worked the 3/3/6 Day Night Roster.
Prior to the August 2023 vote, different working arrangements were in place, Mr Leis discussed these arrangements further. The difference in working arrangements had potential to cause issues around workgroup cohesion, inconsistency in supervision resulting in difficulty ensuring skills development.
Mr Leis submitted that difference in working arrangements impacts employees on IFA’s because 3/3/6 Day Night Roster employees’ cycle through the roster meaning that they spend less time with a particular crew. This affects work allocation with IFA employees potentially being allocated more complex jobs and less variety in their role and picking up partially completed jobs due to 3/3/6 Day Night roster employees ending their swing on a different day.
Mr Leis submitted that a difference in working arrangement has an impact on crew continuity due to 3/3/6 Day Night Roster employees cycling through IFA swings inconsistently. IFA employees may have different 3/3/6 Day Night Roster employees rotating through their swing. In Mr Leis submitted that not having crew continuity could have the following effects:
Increased disruption to the performance of work as a result of changing trades people mid swing;
Increased requirement to undertake handovers;
Reduction in the ability for members of the Workshop Maintenance workgroup to create rhythm in their work and establish effective communication within a crew;
Potential reduction in the ability of less experienced trades people to establish relationships with more senior trades people and undertake informal mentoring;
Reduction in ability for supervisors to establish knowledge of capability of employees, decreasing ability for supervisors to establish consistent development of employee capability;
Potential reduction in team culture and dynamic, which otherwise would enable members of the workgroup to work together and work safety.
Mr Leis submits that from a management perspective, lack of crew continuity creates complexity in ‘resource levelling’. Resource levelling is how Maintenance Planning determines how much maintenance work needs to be completed on a given day, whether there are enough ‘skills on shift to perform such work, and whether the maintenance plan needs to be adjusted to ensure work can be allocated and completed within set timeframes.
The reduced ability to ‘resource level’ has the potential to impact development opportunities available to the Workshop Maintenance workgroup. This is because increased resource levelling results in their being an increase in the Mine’s ability to release crew members to attend training.
Mr Leis submits that the proposed change to the Workshop Maintenance workgroup roster to the 7/7 Day Night Roster affects the IFA employees by removing the inconsistency of working arrangements.
In relation to Mr Golby’s statement regarding the Respondent’s job advertisements, Mr Leis denied that the Respondent had been requiring existing or prospective employees to enter into an IFA and work in accordance with the 7/7 Day Night Roster. Mr Leis stated that IFAs are only entered into where there is genuine agreement in accordance with the Act.
Applicant’s Reply Submissions
The Applicant made further submissions in reply to the Respondent’s submissions.
First, the Applicant rejected that the Respondent’s hypothetical scenario and contention that IFA workers may be affected mean that those workers are presently “affected” for the purposes of the dispute. The Applicant stated that the impact must be real, not indirectly or merely potential. In the Applicant’s view, the Respondent’s submissions on this point merely demonstrated that the IFA workers are not affected in the present scenario, as the impact of the vote did not affect their rosters.
Second, the Applicant dismissed the Respondent’s reliance on Re Australian Education Union on the basis that the words “affected employees” in that case appeared in statute and not an industrial instrument, and related to whether the Commission should make a consolidation order under s.768BG of the Act. The Applicant submitted this case has no application to the present matter.
Third, the Applicant submitted that a merely indirect impact on an employee does not lead to that employee being part of the affected workforce. The Applicant provided three reasons for this contention:
1. The Respondent’s contention would lead to absurd applications of the Agreement. The broad impacts on employees generally contemplated by the Respondent could extend to employees outside the Workshop Maintenance Workforce, such as workers in other workforces, or contractors or labour hire workers not covered by the Agreement.
2. The Respondent’s submissions regarding crew continuity, communication, training and development ignore the Respondent’s decision to make the 7/7 Day Night Roster available for part of the Workshop Maintenance Workforce. The Applicant contended that the Respondent knew that a portion of the workforce did not support the 7/7 Day Night Roster, and considered it was beneficial to introduce a split workforce. The Applicant argued that the broad effects outlined by the Respondent are more appropriately characterised as impacts on the Respondent itself, as opposed to impacts on the workforce, particularly where the relevant evidence was provided by Mr Leis, and not an employee who voted in the ballot. However, the Respondent noted at the hearing that Mr Leis was not required for cross-examination, that his evidence was made based on his experience of the impacts on the relevant employees, and that criticism of his evidence should therefore be rejected.
3. To suggest an indirectly impacted worker is part of the affected workforce would be to disregard the Applicant’s submissions regarding the context and ordinary meaning of the words.
The Applicant also submitted at the hearing that the inclusion of indirectly impacted employees in the affected workforce would be inconsistent with the historical approach to clause 2.4.4 of the Agreement.
Finally, in response to the Respondent’s submission that the Full Bench’s decision in drafting the consultation clauses in modern awards is not relevant, the Applicant submitted that as the Full Bench identified the point at which a worker is impacted by a roster change, the decision is relevant.
Principles Relevant to the Interpretation of an Enterprise Agreement
The principles were conveniently summarised in the Full Bench decision of Berri[4] which I will set out here for completeness:
The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i)the text of the agreement viewed as a whole;
(ii)the disputed provision’s place and arrangement in the agreement;
(iii)the legislative context under which the agreement was made and in which it operates.
The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10.If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aid the interpretation of the agreement.
11.The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12.Evidence of objective background facts will include:
(i)evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii)notorious facts of which knowledge is to be presumed; and
(iii)evidence of matters in common contemplation and constituting a common assumption.
13.The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14.Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
15.In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”[5]
Consideration
In order to answer the question for arbitration it is first necessary to determine which of the employees are “affected” by the vote. The agreed question itself demonstrates it is not contested that the affected group fall within the cohort of the members of the “Workshop Maintenance Workforce”. Further, that there are a group within that cohort who are engaged on IFAs made subsequent to the employment of those employees. It is necessary to thus examine the nature of an IFA in order to explore whether such group are “affected” by the vote.
Clause 5.5.5 of the Agreement provides that the employer or employee may terminate the IFA by giving 28 day’s notice to the other party or at any time where the parties agree in writing. The plain meaning of this provision provides rights to both the employer and the employee who are party to an IFA to bring the agreement to an end.
It was noted in the agreed statement of facts by the parties that if an IFA was terminated there would be an impact on the IFA covered employee that would differ as to the result of the vote[6]. The essence of this is that an IFA covered employee would lose their substantive right to return to a 3/3/6 roster if the relevant cohort voted to move to the 7/7 Day Night Roster. In such circumstances, were those employees not given an opportunity to vote on the roster change, they would essentially be losing the rights accorded to them as a result of a vote they had no say in. This is at odds with the plain ordinary interpretation of those workers’ rights in respect of an IFA and their rights in respect of changes to their Shift work arrangements.
Essentially by taking the view that they were not affected, they would lose those rights which are plain on their face on any interpretation. If they were not included in the affected group, it is also apparent that those workers would be injured in respect of their workplace rights because they exercised their right to enter into an IFA. A comparison cannot be made with such a group to those such as labour hire workers or independent contractors who are not covered by the terms of the Agreement under which this dispute has been brought.
Conclusion
The answer to the question for arbitration:
Were members of the Workshop Maintenance Workforce, who were working pursuant to an individual flexibility arrangement (the effect of which changed their working hours to a 7/7 Day Night Roster), part of the affected workforce for the purposes of a vote to change the base roster of the Workshop Maintenance Workforce from a 3/3/6 Day Night Roster to a 7/7 Day Night Roster?
Is therefore yes.
I determine accordingly.
DEPUTY PRESIDENT
Mr Mitchell Perry, Industrial Advocate, Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union
Mr James Hall, Ashurst
Hearing Details:
Brisbane in-person 23 November 2023
Printed by authority of the Commonwealth Government Printer
<PR769578>
[1] Warrell v Fair Work Australia [2013] FCA 291.
[2] Re Consultation Clause in Modern Awards [2013] FWCFB 10165 at [37].
[3] [2023] FWC 391, [86].
[4] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[2017] FWCFB 3005 (Berri).
[5] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[2017] FWCFB 3005, [114] (Berri).
[6] Statement of Agreed Facts dated 3 November 2023 [18].
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