“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v BOC Limited
[2022] FWC 1869
•18 JULY 2022
[2022] FWC 1869
The attached document replaces the document previously issued with the above code on 18 July 2022.
In paragraph [131] “within” has been replaced with “contemplated by”. The formatting in the headnote has been updated.
Associate to Deputy President Anderson.
Dated 19 July 2022.
| [2022] FWC 1869 |
| 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
BOC Limited
(C2021/8354)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 18 JULY 2022 |
Dispute about matters arising under the enterprise agreement and the NES;[s186(6)] – maintenance and stores officer directed to perform gate access duties – jurisdiction – whether dispute arising out of Agreement – whether direction lawful – whether contractual power to direct inconsistent with Agreement – whether consultation obligations met – direction not unlawful – direction not prohibited by operation of Agreement – reasonableness – recommendations on implementation
On 8 December 2021 the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) applied to the Commission under s 739 of the Fair Work Act 2009 (the FW Act) to deal with a dispute.
The respondent is BOC Limited (BOC).
The subject matter of the dispute is a decision by BOC to direct a maintenance and stores officer to perform gatekeeper duties at BOC’s Torrensville site in Adelaide, South Australia.
The dispute came before the Commission under the dispute settlement procedure of the BOC Limited (Torrensville) Collective Union Agreement 2021 (EA). The dispute was not resolved at the workplace level. It was referred to the Commission under cl 6.2.1 of the EA.
BOC oppose the application on jurisdictional and merit grounds.
A conference was conducted by the Commission on 15 December 2021 following which the parties were referred into private conciliation. A further conference was conducted on 12 April 2022. Despite these endeavours, the dispute did not resolve. The AMWU sought arbitration.
On 19 April 2022 I issued directions. Materials were filed by the AMWU and BOC.
On 19 May 2022 I granted permission for BOC to be legally represented.[1]
I heard the matter by video conference on 3 June 2022.
Evidence
I received written and oral evidence from five persons:
- Stuart Gordon, Assistant State Secretary AMWU (SA)[2];
- Jonathan Lambropolous, Maintenance Operator, BOC (and AMWU delegate)[3];
- Ian Pepper, Flexible Operator, BOC[4];
- Darren Wittmann, Maintenance Officer, BOC[5]; and
- Mark Holt, CSCM Production Manager, BOC[6].
All witnesses gave evidence conscientiously. Mr Holt was not cross examined. Some but not all facts are in dispute. The disputed facts largely concern aspects of the evidence of Mr Wittmann and Mr Holt concerning the nature of the gatekeeping duties and time associated with their performance. I deal with those issues in the body of this decision.
In determining this matter I have regard to all material before me.
Facts
Enterprise Agreement
The industrial instrument relevant to the dispute is the BOC Limited (Torrensville) Collective Union Agreement 2021.
The EA covers BOC and persons employed at the Torrensville site in classifications under the EA.
The AMWU is an employee organisation covered by the EA.
The EA was made on 28 July 2021 and approved by the Commission on 16 August 2021. It operated from 23 August 2021. It has not reached its nominal expiry date (26 April 2024).
Gate access duties
BOC Torrensville is the company’s main operations and production facility in South Australia. The site includes a Gas Cylinder Filling Division, a Customer Engineering Division and a Distribution Division.
Trucks and vehicles driven by local and interstate contactors access the site to deliver and collect products such as gas cylinders and dry-ice.
A gatehouse is located at an entry and exit point to the site. Until July 2021 the gatehouse was manned by a BOC employee. The gatehouse employee performed induction duties and gate access duties. Upon the retirement of the gatehouse employee, BOC decided to automate the gate and abolish the gatehouse position.
In October 2021 BOC’s manager, Mr Holt, sent written communication to employees about the abolition of the position and of a planned redistribution of gatehouse duties amongst existing employees. Meetings by way of general briefing were held.
Automation of the gate was completed in November 2021 following which Mr Holt made a decision allocating functions. During the first fortnight, management performed the duties to assess that automation was working properly and to become familiar with what the new duties entailed.
Gate access duties thereafter required a designated BOC employee to answer a video call on a company mobile device which was triggered via the gate intercom. The employee would view on screen an image of the driver seeking entry, speak to the driver over the device about the purpose of entry, satisfy themselves that the driver was entitled to enter and press a button on the mobile device to activate gate opening.
Automated gate access duties were thus conducted remotely from the gate. Only in circumstances where the designated employee could not verify the driver’s credentials or other complications arose would the employee need to physically attend at the gate.
Not all drivers entering the site require a BOC employee to grant access. Some drivers have pre-authorised entry permits and gain access via automated swipe cards.
In mid-November 2021, Mr Holt decided that the former gatehouse duties would be split between two persons; the induction duties would be performed by the Site Co-ordinator (Mr Radcliffe) and the gate access duties would be performed by a Maintenance and Site Warehouse Operator (Mr Wittmann).
In making this decision, Mr Holt took into account Mr Wittmann’s workload and capacity to take on the duties.
Mr Wittmann’s employment
Mr Wittmann has worked at BOC for 36 years, commencing in 1986 as a casual maintenance fitter and turner. He was a Maintenance Team Leader for seventeen years until that position was made redundant in 2014. Since 1 January 2015 Mr Wittmann has been employed as a Maintenance Officer Level 3.
In this role, Mr Wittmann performs both maintenance and stores duties (not exclusively maintenance). Mr Wittmann’s email sign off describes his position as ‘Maintenance/Store Operative SA’. Despite Mr Wittmann’s evidence being somewhat unsatisfactory on this point, I find this to be the understood and (at least by effluxion of time) agreed description of his position, though it is not a classification in the EA. Somewhat confusingly, Mr Wittmann’s role is also described as a ‘Site Warehouse Operative’ which too is a descriptor not sourced from the EA.
For the purposes of the EA, Mr Wittmann is a Maintenance Officer Level 3.
I also find that although no signed copy of the Employment Agreement governing his employment is in evidence, both Mr Wittmann and BOC submitted identical copies of an unsigned version.[7] I find that the Employment Agreement in evidence has contractually governed Mr Wittmann’s employment since 1 January 2015 (‘employment contract’).
Maintenance duties performed by Mr Wittmann are primarily in the Gas Cylinder Division. His maintenance work is largely troubleshooting maintenance. He works closely with Mr Lambropolous who generally works on preventative maintenance. Mr Wittmann does preventative maintenance in Mr Lambropolous’s absence and vice versa.
Mr Wittmann’s stores duties are significant such that they now occupy more time than his maintenance work. They involve ordering, issuing and receiving goods and equipment onsite as well as stocktake and goods transfer. In the course of receiving goods and equipment, Mr Wittmann has some interaction with drivers or couriers delivering those goods though the level of interaction (and whether active or passive) is disputed.
Direction 2 December 2021
On 17 November 2021, after a trial period by mangers, Mr Holt asked Mr Wittmann to commence performing the gate access duties, in addition to his maintenance and stores duties.
Initially, Mr Wittmann agreed to do so. Though in his evidence Mr Wittmann disputed this, I prefer Mr Holt’s evidence, and find that Mr Wittmann had initially agreed.
After a week, Mr Wittmann had concerns. Assisted by Mr Lambropolous, Mr Wittmann raised those concerns with Mr Holt. Mr Wittmann did not wish to continue performing the duties. He said that the duties were not part of his role and added to the overall stress of his job and his life.
Mr Holt did not agree that the task was onerous.
Later that day, Mr Holt arranged for Mr Wittmann to meet with himself and other managers to discuss the concerns. Mr Wittmann repeated that the job was not part of his role. He also disputed that visitors entering were aligned to his stores work. Mr Holt agreed to examine data on visitor entry. Mr Lambropolous and Mr Wittmann advised that they would be raising the issue with their union, the AMWU.
A week later, 29 November 2021, Mr Holt was advised that Mr Wittmann would thereafter refuse to perform the duties and would raise a dispute under the EA.
On 2 December 2021 Mr Holt directed Mr Wittmann in writing to resume performing the duties (from 6 December 2021). Mr Holt set out reasons why BOC considered the direction lawful and reasonable.[8] The direction read:
“Re: Monitoring of site phone
Darren,
As you are aware, the site no longer has a manned gatehouse and has installed a video intercom system connected for monitoring. As a result, there is no longer a person to receive goods on site on your behalf. As part of your role as Site Warehouse Operative, we require you to monitor the intercom phone in your day to day work, commencing on Monday 6th December 2021 to directly receive goods.
We met with you on 23/11/2021 in the presence of your support person and union representative Jon Lambropolous to discuss your concerns. On 29/11/2021 Jon, on your behalf, indicated that you would be refusing to carry the phone as of 30/11 for reasons previously discussed. BOC do not regard those reasons as reasonable grounds to refuse to perform the task.
We consider you the most appropriate person to monitor the phone because:
· We have reviewed the sign in book and have determined that most of the traffic without a swipe card is for store related reasons, ie incoming goods or pick-ups. There are on average five calls a day that you would need to divert to another area or refer to someone else. We do not believe this is an onerous task or something that is outside your skills and competency.
· Your work hours align with the site opening hours, being 7am-4pm, Mon-Fri.
· Your experience with general site operations should allow you to adequately manage any other arrivals.
· It is not unusual or unreasonable to for a person engaged as a storeperson to be expected to answer a phone.
Basic instruction in the operation of the phone has already been provided when it was given to you initially. Your initial concerns have been noted, the internal document ADL-SEC-010 is being updated to reflect the changes, and the draft update will be available on Monday 6th December. We will continue to support and train you in this task and encourage your constructive feedback to help us to continue to improve the process.
Your contract of employment specifically states:
“You must diligently and carefully perform all the duties provided to you by BOC, which are within your skill and competence including those listed in the position description. In addition to your duties as a maintenance operator, you will also perform the duties of the Site Warehouse Operative as directed or required from time to time. BOC may change your duties from time to time to meet the requirements of the business.”
BOC consider the request to use the phone as lawful and reasonable. We do not regard your refusal to use a mobile phone and take calls as reasonable. Your continued refusal to obey a lawful and reasonable direction may result in disciplinary action.
Shift Manager Paul Chester is currently monitoring the phone until Monday 6th December. He will use this opportunity to log and further analyse incoming calls to reconfirm the data. After which, you will be expected to take accountability for the phone.
If you are going to be absent or need to leave site, please contact Paul Chester in the first instance and he will arrange for coverage. For prior coverage please advise Paul and Production Manager Mark Holt prior to 7am so that alternate arrangements can be made. If you have any other concerns or difficulties, please let Mark or Paul know so they can be addressed.
Sincerely,
Mark Holt
Production Manager
BOC Torrensville Operations
Jamie Innes
General Manager
Industrial, SA”
Later that day (2 December 2021) Mr Holt met Mr Wittmann (and Mr Lambropolous) to discuss Mr Wittmann’s response to the direction. Mr Lambropolous, on behalf of Mr Wittmann, stated that the duties could not be lawfully performed under Mr Wittmann’s classification in the EA, that the employer had failed to consult as required by the EA, that a dispute would be escalated via the AMWU, and that in the interim the status quo should prevail with a person other than Mr Wittmann managing gate access. In response, Mr Holt referred again to the employment contract and the direction.
Dispute
On 8 December 2021 the AMWU notified a dispute in the Commission.
Consultation
Following a conference on 15 December 2021 in which I referred the parties into private conciliation, BOC arranged a consultation meeting with Mr Gordon of the AMWU and Mr Wittmann. The meeting was held on 13 January 2022. Documents were subsequently exchanged and a further meeting was held on 19 January 2022. The matter remained disputed. During February 2022 Mr Holt sought to contact the AMWU. A further meeting was held on 11 March 2022. A counter-proposal by the AMWU involving the use of flexible operators or contractors to provide gate access was discussed but was not acceptable to BOC.
Direction repeated 5 April 2022
On 5 April 2022 Mr Holt sent Mr Wittmann (via the AMWU) a chronology of consultation since November 2021, and repeated BOC’s direction of 2 December 2021 that Mr Wittmann was required to perform the duties or face disciplinary action.[9] The letter read:
“Dear Darren
Direction to perform Site Warehouse telephone duties in accordance with your employment contract dated 23 December 2014
We refer to our letter to you dated 2 December 2021 directing you to perform site warehouse telephone duties as part of your Site Warehouse Operative role pursuant to clause “2. Performance of Duties” of your employment contract (2 December Direction).
We also refer to the following correspondence, meetings and Fair Work Commission conference with you and your Union representative (AMWU) in relation to those telephone duties:
23 November 2021 Meetings with you and Mr Jon Lambropolous, AMWU delegate 15 December 2021 at 2:00pm Conference before Deputy President Anderson on 15 December 2021 in relation to the 2 December Direction 17 December 2021 Email from BOC Limited (BOC) to AMWU requesting follow-up consultation meeting 13 January 2022 at 1:30pm Consultation meeting with Mr Lambropolous and Mr Stuart Gordon of the AMWU, your nominated representatives 14 January 2022 BOC email to the AMWU attaching security documents and Position Description for Storeperson as requested by the AMWU. 19 January 2022 at 1:00pm Consultation Meeting with Mr Lambropolous and Mr Gordon 4 February 2022 BOC email to the AMWU to set up further consultation meeting 9 February 2022 BOC email to the AMWU regarding availability for further consultation meeting and further comment on previous discussion points. Security document attached. 21 February 2022 at 8:50am Follow up phone call to Mr Gordon and left a voice message. 1 March 2022 Email from Mr Gordon to BOC with proposal for further consultation meeting 11 March 2022 Consultation meeting with Mr Lambropolous and Mr Gordon
Notwithstanding that BOC strongly maintains that it is under no legal obligation to consult with you and your Union representative regarding the direction given to you to perform Site Warehouse telephone duties, you will see from the above that BOC has extensively done so in good faith to seek to understand your concerns regarding these duties.
We are disappointed that having consulted you and your Union representative extensively, you are continuing to refuse to perform the telephone duties that form part of your role as Site Warehouse Operative and which would take up a very small amount of your working time each day.
We consider that your conduct in refusing to perform the telephone duties to be a refusal to obey a lawful and reasonable direction given to you by BOC and we will be taking disciplinary action against you in this regard.
However, before we commence any such action against you, we will provide you with one final opportunity to perform the telephone duties. To this end, you have until close of business of Wednesday, 13 April 2022 to confirm that you will comply with the direction, commencing the duties on Tuesday, 26 April 2022 upon your return from a period of approved leave.
Please note that your continued failure to comply with this lawful and reasonable direction can serve as valid reason for termination of your employment with BOC.
Regards,
Mark Holt Jamie Innes”
The dispute remained at a stalemate.
The AMWU sought arbitration.
Status quo
Since the dispute was notified, BOC has adhered to the status quo provision in the EA.[10] Notwithstanding the direction, Mr Wittmann has not been performing gate access duties. BOC has not commenced disciplinary action against Mr Wittmann notwithstanding the employer’s view that Mr Wittmann has failed to comply with a lawful and reasonable direction.
Questions to be determined
The Unions and BOC were directed to seek to agree the questions to be arbitrated.
The parties were unable to reach agreement. Each has provided their formulation of the question(s). Each has agreed that the Commission should determine the form of the question(s) and arbitrate that formulation.
In the circumstances, I consider this to be the appropriate course. In part, the inability of the parties to agree the question(s) is a product of their difference of view on the characterisation of the dispute. There is no unfairness in doing so. The parties agree to that course. I am called on to determine the jurisdictional question. The questions (as I will frame them) raise no new issues beyond those the subject of evidence and submission.
The question as framed by the Union is:
“Is BOC Limited permitted to direct Darren Wittmann to perform Gatehouse duties?”
This question is too imprecise. It could be interpreted as simply requiring the Commission to determine a legal (contractual) issue. The question needs to reference the EA in order to deal with a significant ground of the Union case. It also needs to provide a basis to consider reasonableness.
The questions as framed by BOC are:
Is BOC Limited’s request/direction to the relevant employee (Mr Darren Wittmann) to perform Site Warehouse Operative telephone duties a matter that arises out of the operation of the BOC Limited (Torrensville) Collective Union Agreement 2021 (EA)?
If it is, do the terms of the EA prohibit in any way, BOC Limited, from making such a request/direction to the relevant employee?
The respondent’s first question appropriately states the jurisdictional issue though it should refer to gate access duties given this is the subject of the dispute. The second question is framed too narrowly. The dispute as notified by the applicant concerns more than the terms of the EA. It concerns the operation of the EA.
I expressed these views as provisional observations at the conclusion of proceedings. Both parties agreed that the Commission should frame the questions arising in light of the parties being unable to agree.[11]
Accordingly, the questions to be determined are as follows:
Is BOC Limited’s direction to Mr Darren Wittmann (relevant employee) to perform Site Warehouse Operative telephone (gate access) duties a matter that arises out of the operation of the BOC Limited (Torrensville) Collective Union Agreement 2021?
If it is, does the operation of the BOC Limited (Torrensville) Collective Union Agreement 2021 preclude BOC Limited from issuing such a direction to the relevant employee?
Submissions
AMWU[12]
The AMWU submits that there is no jurisdictional bar to the dispute being arbitrated. The Union says that the dispute raises a question which arises out of the operation of the EA (being, whether the direction was lawfully or reasonably made).
It says that the dispute cannot be characterised simply by reference to the employment contract because the contract does not displace the EA either as a matter of law or practice.
As the dispute, properly characterised, concerns (amongst other matters) rights and obligations under clause 12 Classifications and Appendix A Classification Structures of the EA, it is a matter arising out of the EA. Thus, the Commission has jurisdiction.
On merit, the Union submits that the clause of the employment contract relied upon by the employer is inconsistent with the operation of the EA and in particular (but not limited to) its classification structure. It points to the fact that the position descriptions applied by the employer to Mr Wittmann are not sourced from the EA and that the classification applicable to Mr Wittmann in the EA does not contemplate the performance of gatehouse access duties.
The Union further submits that a decision by the Commission to uphold the employer’s direction would be inconsistent with an industrial instrument made under the FW Act and thereby impermissible under s 93(5) of the FW Act.
The Union also submits that the direction is inconsistent with the EA (and thus unlawful and unreasonable) because BOC failed to consult as required by the EA.
Finally, the Union also submits that requiring Mr Wittmann to perform gate access duties is an extra claim and inconsistent with the EA.
It follows that the Union answers yes to both questions.
In so doing, the Union seeks a determination that the direction was unlawful and unreasonable.
BOC[13]
BOC submit that no private arbitration jurisdiction exists because the dispute is purely contractual and, as such, does not “arise out of the operation of the Agreement” within the meaning of cl 6.2.1 of the EA.
On merit, BOC submit that the direction was not inconsistent with the EA as a whole or its individual terms. In particular, BOC submit that the direction is not inconsistent with either cl 5 (Workplace Change), cl 3.5 (No Extra Claims), cl 12 (Classifications) or Appendices A (Classification Structures) or C (Training).
BOC further submit that the employment contract as a whole is not displaced by the EA nor is cl F2 of the contract so displaced.
BOC submit that the direction is lawful.
On reasonableness, BOC submit that it is a matter for the employer, not the Commission, to rule on reasonableness as, according to BOC, reasonableness is not a matter arising out of the operation of the EA.
In any event, BOC submit that the direction is reasonable because the additional tasks required of Mr Wittmann are not onerous, are within his skill set and have been the subject of training and guidance.
As the direction is lawful and reasonable, BOC submit there are no grounds on which implementation or a direction to comply or disciplinary proceedings for non-compliance should be interfered with.
Consideration
Jurisdiction
The role of the Commission in this matter is one of private arbitration, defined by the terms of the EA.
Section 739(4) of the FW Act provides that “if, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so”. However, the Commission “must not exercise any powers limited by the term” (s 793(3)), and “must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties” (which includes an enterprise agreement) (s 93(5)).
Clause 6.2 of the EA relevantly provides:
“6.2 Grievance & Dispute Resolution Procedure
6.2.1In the event of a dispute, question, or difficulty operating out of the operation of this Agreement, or the NES affecting one or more employees, the following procedure shall be used:
a) The grievance/dispute will be discussed promptly with the Employee(s) and their immediate manager.
b)If the grievance/dispute cannot be resolved, then the grievance/dispute shall be discussed with the production/distribution manager.
c) If the parties agree that assistance of higher level of management may assist in resolving the dispute, the matter shall be discussed with such management.
d)In the event the matter still cannot be resolved, either party may refer the matter to the FWC for conciliation;
e) Genuine attempts to resolve the matter must be made prior to it being referred to the FWC for conciliation.
f) In the event that the dispute/grievance cannot be resolved by conciliation, either party may request that the matter be resolved by arbitration to the FWC.
g)When arbitration is requested, the following shall apply unless a specific alternative is agreed in writing by the parties to the dispute/grievance:
i.the FWC may exercise the procedural powers in relation to hearing, witnesses, evidence, and submissions which are necessary to make the arbitration effective;
ii.the decision of the FWC shall be binding on all parties to the matters.”
In order to determine whether a notified dispute falls within the private arbitration jurisdiction of the Commission as provided for by the EA it is necessary to properly characterise the dispute.
I agree with the Union that the dispute, properly characterised, concerns (amongst other matters) rights and obligations under cl 12 Classifications and Appendix A Classification Structures of the EA. It is not a dispute of a wholly contractual nature, even though BOC may wish it so. The dispute cannot be settled without considering the operation of the EA and the interaction between the EA and Mr Wittmann’s contract.
The questions for determination are clearly “questions or difficulties” within the meaning of cl 6.2.1 of the EA.
The questions “arise out of the operation of the Agreement” within the meaning of cl 6.2.1 because the dispute, at its heart, concerns the proposition that the direction to perform additional duties is unlawful or unenforceable because the source of the contractual right to direct Mr Wittmann is inconsistent with or has been displaced by the operation of the EA.
The Commission has jurisdiction to determine the dispute.
I note two caveats.
Firstly, the Commission has no jurisdiction to finally determine legal rights but can, in the settlement of disputes express opinions on legal questions[14].
Secondly, I agree in part with BOC that reasonableness of the direction is not strictly a matter arising out of the operation of the EA.
To the extent that the dispute raises (as it does) the proposition that an employee classified as a Maintenance Officer Level 3 cannot be reasonably required to perform gate access duties because those duties are not encompassed by the work of a Maintenance Officer as provided for or contemplated by the EA, then reasonableness is within jurisdiction. However, to the extent that reasonableness also raises (as it does on the Union case) broader issues of fairness or whether such duties can be encompassed within the internal descriptors ‘Maintenance/Store Operative SA’ or ‘Site Warehouse Operative’ then these are not questions or difficulties arising under the EA. This is because the EA does not provide a classification in the terms of those descriptors. Nor does the dispute resolution provision in this EA provide for settlement of disputes concerning the general fairness or reasonableness of industrial or employment matters.
In exercising jurisdiction in this matter, I am called on to interpret terms of the EA. Principles governing the interpretation of industrial instruments are well settled.[15] They need not be repeated. I apply those principles. The correct approach was succinctly put by the Full Court of the Federal Court in WorkPac Pty Ltd v Skene:[16]
“[197] The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation “... turns on the language of the particular agreement, understood in the light of its industrial context and purpose ...”. The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.” (citations omitted)
Lawfulness
There are three grounds on which it is contended the direction is inconsistent with the operation of the EA and thereby unlawful:
· Inconsistent with the consultation requirements (cl 5);
· Inconsistent with the no extra claims clause (cl 3.5); and
· Inconsistent with the Classification clause and structure (cl 12 and Appendix A).
The Union also submits that the direction is unlawful because the employment contract or relevant parts of the contract have been displaced by the operation of the EA.
Consultation
Like all terms in an industrial instrument, consultation provisions are to be interpreted and applied according to their language and context.
Clause 5 of the EA relevantly provides:
“5. WORKPLACE CHANGE
5.1 Preamble
5.1.1The parties acknowledge that, in an increasingly changing business environment, we need to continually review our operations to ensure we are competitive. In doing so, BOC is committed to involvement of all relevant Employees and, where requested by the Employees, their union, in the implementation of change.
5.1.2An Employee may be represented by a representative of their choice for the purposes of the procedures outlined Clause 5.
5.2 Notification and Discussion
5.2.1Where the Company is planning to introduce major changes in production, program, organisation, structure, or technology that are likely to have significant effects on Employees, the parties to this Agreement shall endeavour to consult and agree on the proposed changes.
5.2.2“Significant effects” – which include termination of employment, major changes in compositions, operation, or size of our workforce or in the skills required, the elimination or diminution of job opportunities, promotion opportunities, or job tenure; the alteration of hours of work; the need for retraining or transfer of Employees to their work or work locations and the restructuring of jobs.
5.2.3The discussion shall commence as early as practicable after a definite decision has been made by the Company to make changes referred to previously.
5.2.4The company shall discuss with the Employees affected and, if requested by the Employees, their union, the introduction of the changes, the effects the changes are likely to have on Employees, measures to avert or mitigate the adverse effects of such changes on Employees.
5.2.5For the purposes of such discussions, the Company shall provide the Employees concerned and, if requested by the Employees, their union, all relevant information about the changes, including the nature of the changes proposed; the expected effects of the changes on the Employees and any other matters likely to affect Employees provided that the company shall not be required to disclose confidential information the disclosure of which would be detrimental to the company’s interests.
5.2.6Where a dispute arises regarding this process, it will be resolved as per the dispute procedure in this Agreement.”
Clause 3.4.1 (b) ‘Objectives’ provides that the parties are committed to:
“Working together through effective and open communication, consultation, and participation.”
I do not consider that BOC acted inconsistently with either of these provisions.
Clause 3.4.1 (b) is an expression of commitment. In it chapeau it refers to “the following principles”. Whilst those “principles” may assist the interpretation of rights and obligations that follow, clause 3.4.1 (b) does not of itself create consultation obligations.
Clause 3.4.1 (b) does however provide context to the interpretation of the consultation obligations in cl 12. This is because cl 3.4.1 (b) provides that the EA is intended to support and facilitate, within its terms, “communication, consultation and participation” between BOC and its employees and the AMWU (being the “parties bound” cl 3.1).
I now turn to cl 5.
Change provisions of a broadly comparable nature were first introduced in industrial instruments by a predecessor to the Commission following the 1984 Termination Change and Redundancy (TCR) test case.[17] Change provisions in various forms were subsequently incorporated in collective instruments (awards and agreements). Whilst termination and redundancy aspects of the National Employment Standards (NES) under the FW Act can be traced back to the TCR test case, the change provisions generally have not been so legislated.
BOC submit that the direction to Mr Wittmann was not a “major change” with “significant effects” within the meaning of cl 12.
There is some superficial attraction to BOC’s position. There are cases where comparable change and consultation provisions in industrial instruments have been found not to relate to a proposed change to employment conditions of an individual employee where those changed conditions would not have a proposed effect on other employees or a group thereof covered by the EA.[18]
However, each case is to be determined according to the relevant instrument and its facts. As has been noted by a full bench of the Commission, it is a question of fact, based on circumstance.[19]
If this were a matter where additional duties were simply allocated to Mr Wittmann absent the restructuring undertaken by BOC, I would agree that cl 5 may well not apply. However that is not the case. In this matter:
· Gatehouse access duties were tasked to Mr Wittmann following BOC restructuring its operations such that it no longer employed a gatekeeper. That position was made redundant;
· The tasks of the former gatekeeper were not simply re-allocated to Mr Wittmann. The induction task was allocated to another employee. Duties were re-allocated beyond Mr Wittmann singularly;
· The gate opening and closing function was automated; and
· New technology remote from the gate was introduced, and required to be used by Mr Wittmann to regulate site access.
In these circumstances a change in organisation and technology concerning the provision of access and egress to the site took place within the meaning of cl 5.2.1. The change was a sufficient alteration to what went before for it to be a “major” change to this aspect of site operations. Further, the change had a significant effect within the meaning of cl 5.2.2 because it required re-training (in the new technology) and involved some restructuring of Mr Wittmann’s overall employment responsibilities. These changes, whist (for reasons discussed below) are not particularly onerous were “significant” within the meaning of cl 5.2.2. I also take into account the purposive nature of cl 3.4.1 (b) in interpreting cl 5 in this manner. I also take into account that cl 5.1.1 commits the parties to actively recognising that operational change can enhance competitiveness. This was an operational change made, in part, for that purpose.
Having concluded that cl 5 applied, did BOC act inconsistently with its obligations under that clause?
For the following reasons, I conclude that BOC did not act inconsistently with cl 5.
The factual matters set out in the consultation table incorporated by BOC in its correspondence to Mr Wittmann of 5 April 2022 were not the subject of evidentiary dispute. I have made findings with respect to each of these consultation steps, and others.
The consultation occurred once a definite decision was made by BOC to introduce the change (automate the gate and operate it remotely). Early notification of the impending change was provided on 11 October 2021 in general terms. Mr Wittmann was first asked to perform the duties in November 2021. He initially agreed to do so. After a week he raised concerns. Consultation occurred on those concerns with both Mr Wittmann and his union delegate. Only after that was the direction of 2 December 2021 issued.
When the dispute escalated, consultation occurred between BOC and the Union at an officer level (also involving Mr Wittmann). Information was provided by BOC and exchanged. An alternate proposal by the Union was developed but not accepted by BOC. Further discussions occurred. Only after that was the direction repeated on 5 April 2022.
These steps met the requirements of cl 5 in the context of the change as it impacted Mr Wittmann.
BOC’s conduct was not inconsistent with the consultation requirements in cl 5 of the EA.
No extra claims
Clause 3.5 of the EA provides:
“3.5. No extra claims
3.5.1. It is a term of this Agreement that:
a)the parties to this Agreement shall not pursue any extra claims during the nominal life of this Agreement; and
b)the Agreement covers all matters or claims regarding the employment of the Employees.”
The Union submits that the direction to Mr Wittmann was an extra claim.
Whilst I have concluded that it was, in context, a change proposal, a change proposal without more does not constitute an extra claim with the meaning of cl 3.5. Were this to be so, cl 5 itself which contemplates the introduction of change (including change with significant effects) would sit inconsistently with the no-extra claims clause of the EA.
The question which arises is whether there is some peculiar characteristic of the proposed change that would characterise it as a claim.
I think not.
The Union refers to a decision of the Full Court of the Federal Court in Marmara[20]. In that matter, the Court observed that for a “claim” to exist it must in some sense be a “presumptively advantageous alteration to the existing state of affairs”.[21]
The Court’s observation is not to be read in isolation or out of context. The example given by the Court that follows is that of a group of employees seeking to change a roster where they have no other means to do so. Hours of work and rosters are matters typically regulated by agreements and are commonly the subject of collective bargaining claims and counter-claims.
Moreover, the Court in Marmara approved the observation at first instance, that the notion of “further claims” is:[22]
“encompassing a proposal made by a party to the Agreement to materially change the terms and conditions of employees set out in the Agreement other than in a manner already provided for in the Agreement”.
A “claim” is not limited to an assertion of established rights or entitlements, legal or moral.[23] However, as the Court said in Marmara, “to deal with the problem at this level of generality would be to ignore context, which is of paramount importance in this area of the law”.[24]
BOC is seeking to do no more than re-allocate duties consequent on an operational change in circumstances where it says it has an existing contractual right to do so. Its actions do not have the necessary character of a “claim” for the purposes of the No Extra Claims clause in the EA. For reasons considered below, I do not find that the change is inconsistent with the classification structures of the EA. I have found that the EA expressly provides that the parties “commit to reviewing the classification structure during the life of the Agreement”. BOC does not seek that employees give up something protected by the EA or something related to the collective bargaining process by which the EA was made. The EA itself contemplates the implementation of change. BOC propose no bargain or exchange. It does not seek to strike a new bargain. It seeks to rely on an existing contractual right.
For these reasons, BOC was not precluded from issuing the direction by cl 3.5 of the EA.
Classifications
Clause 12 of the EA provides:
“12. CLASSIFICATIONS
12.1Upon commencement, an Employee will be classified as a New Starter, as defined in Appendix A. Thereafter, an employee may progress to subsequent classifications upon being certified proficient in all required qualifications, competencies, and training. To be certified proficient, an Employee must successfully pass any required practical or theoretical test. The requirements for each classification are outlined in Appendix A.
12.2. Compressed Operations
12.2.1The classification structure has been designed to accommodate both business and Employee needs and recognises all skills and competencies required to carry out production duties within the sites operations.
12.2.2If the number or type of activities that are conducted on sight change significantly, the structure will be reviewed in consultation with the affected employees.
12.2.3The classification structure requires that, to be appointed to Team Leader position, an Employee must be qualified in Level 2. This requirement does not apply retrospectively and will only apply the candidates considered for this type of position after the date this Agreement is made.
12.3 Maintenance Employees
12.3.1The maintenance classification structure recognises all skills and competencies required to carry out maintenance duties within the site’s operations.
12.3.2If the number or type of activities that are conducted on site change significantly, the structure will be reviewed in consultation with the affected employees.
12.3.3BOC shall consult with an appropriate training provider to ensure the training competencies outlined in the Maintenance Classification Structure are current. Once this review is completed, BOC shall, in consultation with the union, seek to have this Agreement Amended to reflect those changes.
12.4 Recognition of Prior Learning
12.4.1Where a new Employee is engaged and has a demonstrated competence to work beyond the skills of a New Starter, BOC may classify that Employee at a suitable higher classification.
12.4.2A new Employee may be required to demonstrate this competence to BOC’s satisfaction.”
Appendix A is titled ‘Classification Structures’. It is divided between ‘Production’ and ‘Maintenance’. With respect to ‘Maintenance’, it provides:
“Maintenance Levels Internal Modules (Refer Schedule C.5) External Modules (Refer Schedule C.4) Qualification Condition New Starter 1, 2, 14, 15, 16 Forklift, Fire Extinguisher Training Certified Eng Trade Mechanical or equivalent and agreement to complete Internal and External modules Level 2 17, 18 Breathing Apparatus, Compression Fittings On completion of internal and external blocks Level 3 19, 21, 22, 23, 24 Gas and Tungsten Arc Welding
Pneumatics 1
Welding and Brazing (Certified)
Elevated Platform LicenseOn completion of Level two blocks and one Level 3 Block as determined by business needs and a preparedness to lead the Maintenance team in the absence of Team Leader. Team Leader 20 FMI Business Management Certificate Level 4 By appointment with the commitment to complete BOC Team Leader Training
The parties agree to commit to reviewing the classification structure during the life of the Agreement.”
The EA elsewhere (Appendix B) provides rates of pay for maintenance employees.
Unhelpfully, nowhere in the EA is Maintenance Officer Level 3 defined. The only sense in which “maintenance duties” (within the meaning of cl 12.3.1) can be inferred is some competency or connection with the training modules required to be completed by a Level 3 Maintenance Officer (Appendix A and expanded in Appendix C C5), and that Level 3 sits below a ‘Team Leader’ and thus could be said to contemplate duties that are not those of a Team Leader (which is also undefined) but where the employee is “prepared to lead…in the absence of the Team Leader”.[25] Also unhelpfully, there is no position description accompanying the employment contract despite the contract contemplating one.[26]
Given that the EA does not define the work of a Maintenance Officer or “maintenance duties”, it provides little or no guidance to the boundaries or outer boundaries of the classification except that an employee doing that work needs to have completed the prescribed training competencies. Clause 12.3.1 simply refers to “maintenance duties within the site’s operations”.
However, some meaning must be given to the classification for the EA to have force and effect.
Without being exhaustive, the concept of maintenance centrally involves working on plant, equipment or facilities to maintain that plant, equipment or those facilities in working or productive order, and matters incidental thereto.[27]
Clearly, stores duties and gate access duties are not “maintenance duties” in that sense. However, certain stores duties are contemplated by the maintenance training specifications in the EA (Appendix C.5 item 23).
The question which arises is whether requiring a person classified and paid as a Maintenance Officer to perform gate access duties specifically is conduct by the employer inconsistent with the EA and thus prohibited by the instrument.
There is no express prohibition in the EA on the allocation of non-maintenance duties to a Maintenance Officer.
Is an inconsistency or prohibition implied by reference to other provisions of the EA?
The Union relies in part on Appendix C3. Appendix C concerns ‘Training’. It prescribes training modules for two production roles (C1 and C2). In C3 it provides training for a position described as ‘Flexible Operator’. C3 is headed ‘Additional Elements for Flexible Operator’. Eight elements are referenced. One is ‘Gatehouse Duties’. Nothing more is described.
It is evident that a role of ‘Flexible Operator’ is contemplated by the EA, and that the role can include ‘gatehouse duties’. Mr Pepper when giving evidence was described as a Flexible Operator Level 2. However, given the ill-defined nature of Appendix B and the fact that Appendix C is training related and a poor proxy for descriptive position definitions, I do not conclude that ‘gatehouse duties’ are the exclusive domain of a ‘flexible operator’. Whilst creating this position was an alternate solution raised by the Union during consultation, it was rejected by the employer on cost and other grounds.
Nor do I consider that allocating gatehouse access duties pursuant to a contractual right is inconsistent with the parties commitment in the EA (at the footer to the ‘Maintenance’ table in Appendix A) to “reviewing the classification structure during the life of the Agreement”. Duties additional to those contemplated by an existing classification were allocated. Mr Wittmann was not re-classified. Nor was the role of performing gate access duties a new classification or a proposed new classification.
Absent an express or implied prohibition in the EA, I do not find inconsistency between BOC’s conduct and cl 12 or Appendix A or Appendix C of the EA.
Displacement
It is not in dispute that the employment contract provides a right to BOC to allocate additional duties to Mr Wittmann. Clause F2 of the contract provides:
“F EXPECTATIONS AND RESPONSIBILITIES
……
2 Performance of Duties
You must diligently and carefully perform all of the duties assigned to you by BOC, which are within your skill and competence, including those listed in the position description.
In addition to your duties as a Maintenance Operator, you will also perform the duties of a Site Warehouse Operative as directed or required from time to time.
BOC may change your duties from time to time to meet the requirements of the business.”
As a matter of custom, practice and agreement, Mr Wittmann’s role of Maintenance Officer came to incorporate stores duties and was thereafter internally described as ‘Maintenance/Store Operative SA’ or ‘Site Warehouse Operative’.
BOC is expressly permitted by cl F2 of the employment contract to allocate additional duties from time to time to meet the needs of the business. It did so in November 2021 following the re-allocation to Mr Wittmann of components of the former gatehouse position.
The Union does not dispute that a contractual right to direct exists under cl F2 but says that those rights are inoperative in this matter because the EA has displaced the contract at least as it relates to the allocation of non-maintenance duties.
The general principle governing the relationship between a statutory industrial instrument and a contract of employment is well settled. Unless a contrary intention is evident, each co-exists although terms of a contract inconsistent with the industrial instrument will be displaced to the extent of the inconsistency.[28]
The Union submits that a contrary intention is evident in this matter.
Given the aforesaid principle, a contrary intention, if it is to exist, must be clearly evident. It is only to the extent of inconsistency that a contract of employment or a term of a contract of employment is displaced by an industrial instrument.[29] In this matter, that contrary intention does not exist. The terms of Mr Wittmann’s employment contract specifically provide that the contract and the industrial instrument operate in parallel:[30]
“This Employment Agreement covers the terms and conditions which apply to your employment with BOC. Other terms and conditions specific to your position are covered in the BOC Limited (Torrensville) Collective Union Agreement (your EBA).”
Further, certain terms of the contract (for example, B3 Superannuation, B4 Special Allowances, C Hours of Work, D1 Annual Leave, D3 Personal Leave, E1 Notice of Termination) specifically reference terms in the EA. Other contractual terms (for example, B1 Wages) specify how entitlements interact between the contract and the EA. Remaining contractual terms (for example, B2 Incentive, B5 Car Allowance, E3 Direction not to attend work) are purely contractual.
That the contract as a whole, and that certain terms of the contract interact with but do not wholly substitute for terms of the EA on common subject-matters, tells against a conclusion that the EA displaces the contract.
Furthermore, the EA itself provides that the instrument and the FW Act’s National Employment Standards “contain the minimum conditions of employment for employees covered by the Agreement”.[31] Self-evidently, the EA contemplates terms beyond the minimum. That a source of such additional terms may be contractual is consistent with the EA prescribing minimum conditions only.
The Union refers to a decision of the Full Court of the Federal Court in McLennan v Surveillance Australia Pty Ltd.[32] That matter is readily distinguishable. Unlike the instant matter that concerns a collective instrument and its interaction with a common law contract of employment, McLennan dealt with two individual instruments – a then statutory individual instrument (Australian Workplace Agreement) made under a different legislative scheme and a contract of employment.
No contrary intention is evident in this matter. The employment contract and the EA co-exist.
In the alternative, the Union submits that if the employment contract is not displaced as a whole, cl F2 ‘Performance of Duties’ is displaced as it is inconsistent with the EA.
I have not found inconsistency between BOC’s conduct and either cl 5, cl 3.5, cl 12 or Appendices A or C. No other specific clause is relied upon by the Union. Considering also the EA as a whole, and making allowance for its less than precise drafting by industrial parties, I do not find any inconsistency with other clauses in the EA or as a whole.
Accordingly, I conclude that there is no basis on which it can be found that the performance of gate access duties by Mr Wittmann is inconsistent with the EA. Clause F2 of the employment contract is not displaced by the EA on the ground of inconsistency.
Conclusion on lawfulness
BOC’s direction to Mr Wittmann is not prohibited by the operation of the EA.
The employment contract governing Mr Wittmann’s employment is not displaced by the operation of the EA.
Noting that the Commission has no jurisdiction to finally determine legal rights but can, in the settlement of disputes express opinions on legal questions, for the aforementioned reasons, I conclude that BOC’s direction to Mr Wittmann of 2 December 2021 and repeated on 5 April 2022 is not unlawful.
Reasonableness
Can Mr Wittmann, as an employee classified under the EA as a Maintenance Officer Level 3, be reasonably required to perform gate access duties?
I have found no prohibition or inconsistency with the EA where a Maintenance Officer employed by BOC performs non-maintenance duties generally or specifically gate access duties.
Absent a prohibition or inconsistency, whether such duties can be required is a question of contract.
BOC seek to rely on a position description of an officer in its Melbourne operations who it says performs comparable duties including gate access duties as well as stock inventory functions. Until produced in these proceedings, that position description was unknown to Mr Wittmann. It appears to relate to a different role. There is no evidence that the description formed part of Mr Wittmann’s contractual terms. It is of no assistance to the determination of this matter. I have no regard to it.
That notwithstanding, the direction to perform gate access duties was the product of an express contractual term governing Mr Wittmann’s employment. That term was included in his employment contract as a Maintenance Officer Level 3. It was to the effect that his employer could require Mr Wittmann to perform Store Warehouse Operative duties and to otherwise change his duties from time to time to meet the needs of the business.
Prior to the direction, Mr Wittmann had for a considerable time been performing non-maintenance functions (stores duties) as contractually required. These had become a substantial portion of his work responsibilities.
Given that the EA and the employment contract operate in tandem, and given that the EA does not prohibit a Maintenance Officer performing non-maintenance duties, and further given that a contractual term applicable to these parties required stores duties and could require the imposition of other duties, I conclude that the direction to Mr Wittmann to perform gate access duties was not unreasonable.
In other words, because it was contractually agreed that additional duties could be required, and because doing so was not inconsistent with the EA, the direction was not just lawful, but also not unreasonable.
I express no view on whether a Maintenance Officer under the EA could be reasonably required to perform non-maintenance duties absent such a contractual term.
Whilst this is a sufficient basis to dispose of the reasonableness question insofar as it arises from the operation of the EA, I consider it appropriate, given the nature and longevity of the dispute, to express an opinion on the broader issue of reasonableness. I do so in an endeavour to assist the parties to resolve all issues of difference.
The general approach adopted by the Commission to assessing reasonableness of an employer’s direction was succinctly expressed in the XPT Case:[33]
“It seems to us that the proper test to be applied and which has been applied for many years by the Commission is for the Commission to examine all the facts and not to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable.”
There are three grounds on which BOC’s direction is said to be unreasonable in the sense of being unfair: that it was not the subject of adequate consultation; that the gate access duties are not within Mr Wittmann’s skill set; and that they are operationally impractical for Mr Wittmann.
I have concluded that consultation occurred sufficient to meet BOC’s obligations under the EA. More generally, I am not satisfied that consultation was inadequate. Specific consultation with Mr Wittmann could not reasonably have been conducted until the employer had decided that it was Mr Wittmann who would inherit some of the duties re-allocated from the former gatehouse operator. Technology was required to be established to create functionality. The company acted reasonably in first conducting a trial amongst managers. As soon as concerns were raised by and on behalf of Mr Wittmann, meetings were held. Information was exchanged. Whilst the parties agreed to disagree, there was discussion and consideration of Mr Wittmann’s points of view to try to find work-arounds or assuage his concerns.
Nor do I find that the gate access duties were beyond Mr Wittmann’s skill set. Mr Wittmann is a long term employee. Whilst the additional duties involve using technology, they involve a relatively simply a portable device, screen and buttons. Mr Wittmann was shown what to do and Mr Holt and others were receptive to re-training. No external training programme or module was sought or required.
Whether the additional duties are onerous is contested. On this issue, I prefer Mr Holt’s evidence to that of Mr Wittmann with the caveat that some of the data obtained by Mr Holt provides guidance but is not an exact snap-shot of Mr Wittmann’s workday or the frequency of visitor entry. The general impression conveyed by Mr Wittmann ‘s evidence was that, after a week of performing the additional duties he did not want to do them because he did not consider them to be his core job, not because they could not be reasonably accommodated. I accept Mr Holt’s evidence that the duties generally involve, on average, not more than ten minutes per day spread across the workday.
I take into account that the task, when it arises, is distracting from work otherwise being performed. However, I accept the evidence of Mr Holt that generally the person performing the task does not need to leave what they are doing and attend at the gate. That Mr Wittmann did so more regularly than others in the interests of making an assessment of broader site security or wanting to look the driver in the eye or view the logos or descriptors on the truck was not required of him by BOC. Mr Wittmann is not to be criticised for wanting the task performed in this arguably more thorough way, but in moving to remote access BOC carries the consequence of access being granted with a somewhat lesser degree of scrutiny.
Considered overall, I do not consider the additional duties to have imposed unreasonable imposts or requirements.
Conclusion
I have expressed the opinion that the direction to Mr Wittmann to perform gate access duties is not unlawful.
I have concluded that the direction is not unreasonably required of Mr Wittmann by reference to the operation of the EA and his classification as Maintenance Officer Level 3.
I have also expressed the opinion that the direction is not unreasonable taking into account broader considerations.
However, I consider it appropriate to make two recommendations.
Recommendation 1
Mr Wittmann should be provided a supportive environment in which to perform gate access duties including further guidance on the use of the technology and clarity on the circumstances in which he may or may not need to physically attend at the gate. The supportive environment should recognise that not all persons are as adept with technology or new systems as others and that, in performing the duties, he is not responsible for overall site security.
Recommendation 2
My findings and conclusions highlight deficiencies in the terms of the EA. These include but are not limited to the fact that classifications are not defined; training modules appear to be inadequate proxies for classification definitions; and the reference to gatehouse duties in Annexure C3 of the EA appears to relate only to a flexible operator role for which there is no classification. The EA’s nominal expiry date is April 2024. Waiting two years to address these deficiencies may not assist resolution of disputes. Parties should consider whether earlier collective bargaining over these issues is desirable or, as a lesser step, a negotiated arrangement (such as an interim letter of understanding) between BOC and the Union on the appropriate operation of these ill-defined provisions.
Disposition
The answers to the questions requiring determination are as follows:
Is BOC Limited’s direction to Mr Darren Wittmann (relevant employee) to perform Site Warehouse Operative telephone (gate access) duties a matter that arises out of the operation of the BOC Limited (Torrensville) Collective Union Agreement 2021?
Answer: Yes.
If it is, does the operation of the BOC Limited (Torrensville) Collective Union Agreement 2021 preclude BOC Limited from issuing such a direction to the relevant employee?
Answer: No.
The dispute is determined accordingly.
DEPUTY PRESIDENT
Appearances:
K Tobin for the Applicant
R Millar, J Nguyen, and V Datta, with permission, for the Respondent
Hearing details:
2022
Adelaide (by video)
3 June.
[1] Email ‘Chambers – Anderson DP’ 19 May 2022 4.51pm
[2] AMWU 1
[3] AMWU 2
[4] AMWU 3
[5] AMWU 4
[6] AWU2
[7] DW1; MH1
[8] DW2; MH8
[9] MH13
[10] Cl 6.1.3
[11] Microsoft Teams Transcript, 3 June 2022, 3.27-3.37pm
[12] AMWU Submissions 20 May 2022 and Submissions in Reply 1 June 2022
[13] BOC Submissions 23 May 2022 and Submissions in Reply 1 June 2022
[14] Qantas Airways Limited v Mazzitelli[2020] FWCFB 2628 at [33]-[34]
[15] AMWU v Berri Pty Ltd [2017] FWCFB 3005, drawing on the earlier Full Bench decision in AMIEU v Golden Cockerel Pty Ltd [2014] FWCFB 7447
[16] [2018] FCAFC 131
[17] (1984) 8 IR 34 and (1984) 9 IR 115
[18] Mavrojianis v Adelaide Brighton Cement Ltd[2021] FWC 6270 at [69] to [78]
[19] Construction, Forestry, Maritime, Mining and Energy Union and Howard v Mt Arthur Coal Pty Ltd[2021] FWCFB 6059 at [128]
[20] Toyota Motor Corporation Australia limited v Marmara [2014] FCAFC 84
[21] Ibid at [61]
[22] Ibid [37]
[23] Ibid [56]
[24] Ibid [37]
[25] Appendix A ‘Maintenance’ Qualification Condition Level 3
[26] DW1 F2 first sentence
[27] Butterworths Encyclopaedic Australian Legal Dictionary (online edition) defines “maintenance” as “The repair or upkeep of something. The scope of the term depends upon the context in which it is found. It may involve keeping something in efficient working order as well as in good repair.”
[28] DL Employment Pty Ltd [2014] FWCFB 7946 at [42] citing Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 at 287 per Wilson J; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 420-421 per Brennan CJ and Dawson and Toohey JJ; Quickenden v O’Connor (2001) 184 ALR 260 at [69] per Black CJ and French J (as he then was) and at [131] per Carr J
[29] NSW Trains v James[2022] FWCFB 55 at [118]
[30] DW1 A1
[31] Clause 3.3.5
[32] (2005) IR 209
[33] Australian Federated Union of Locomotive Enginemen and State Rail Authority of New South Wales (1984) 295 CAR 188; see also Construction, Forestry, Mining and Energy Union v HWE Mining Limited[2011] FWA 8288 at [7] to [10]
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