“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Commonwealth of Australia (Department of Defence)
[2024] FWC 2007
•31 JULY 2024
| [2024] FWC 2007 |
| 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
Commonwealth of Australia (Department of Defence)
(C2023/6802)
| COMMISSIONER MCKINNON | SYDNEY, 31 JULY 2024 |
Alleged dispute about matters arising under the enterprise agreement – local working arrangements under the Defence Enterprise Agreement 2017-2020
This decision is about whether two employees of the Department of Defence (Defence) entered into a “local work arrangement” under the Defence Enterprise Agreement 2017-2020 (the 2017 Agreement). The employees, Mr Edmond Christensen and Mr Steve Matujza, are employed as Maintenance Managers working from the Royal Australian Air Force (RAAF) base in Richmond, New South Wales. They deny being employed under a local working arrangement and say that since 2013, when their hours of work changed to include 6.00am starts under the Defence Enterprise Collective Agreement 2012-2014 (the 2012 Agreement), they were considered shiftworkers and should have been paid accordingly.
The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) has applied on behalf of Mr Christensen and Mr Matujza for the Commission to deal with the dispute under clause A8 of the 2017 Agreement. The dispute resolution process has been followed including by conciliation in the Commission. This decision now resolves the dispute by arbitration.
The question to be decided is whether, for the purposes of clause E5 of the 2017 Agreement, Mr Christensen and Mr Matujza were at relevant times working pursuant to a “local working arrangement” under the 2017 Agreement.
The dispute is brought on the agreed basis that if the employees were working pursuant to a local working arrangement, they were not entitled to shift penalties for work performed under the arrangement. I will proceed on this basis without determining the correctness of the position.
For the reasons below, the answer to the question is ‘Yes’.
The 2012 Agreement
The 2012 Agreement was approved by the Commission on 12 April 2012 and operated until replaced by the 2017 Agreement with effect from 16 August 2017. The 2012 Agreement covered Defence, its Australian Public Service (APS) employees below the level of Senior Executive Service (SES) and equivalent (except Australian Workplace Agreement‑covered employees and locally engaged employees overseas). It also covered the AMWU.
Clause F5 of the 2012 Agreement dealt with local working arrangements. It provided:
“F5 Local working arrangements
Principle
F5.1Supervisors and employees may enter into local agreements on the operation of working hours which vary from the standard conditions. Such arrangements may be initiated by management or by employees.
F5.2 Subject to paragraph F5.4, a group of employees or an individual employee and their supervisor may enter into an arrangement to vary their standard working hours. In the case of a group of employees, the arrangement must be intended to better achieve operational objectives and, in the case of an individual, the arrangement must not adversely impact on the achievement of workplace objectives. Where such an arrangement applies to a group of employees, it must be fully documented. Where such an arrangement is made with an individual, details of the arrangement are to be recorded in the employee's performance agreement. Local working arrangements may be further varied only after both supervisors and employees agree.
F5.3Flexible working hours matters that cannot be varied under local arrangements are:
a. the definition of a standard day;
b. the length of a standard week;
c. the settlement period for flextime;
d. the right of the employee to use excess flex credits within a reasonable period of accumulating them;
e. the application of F2.4 of this agreement (excessive work hours);
f. the right of the employee to seek review of a decision, made by their supervisor, that will reduce the employee's access to flexible working hours, where such variation has not been mutually agreed between the supervisor and employees; and
g. the prescribed retention period for attendance records.
F5.4Subject to F5.5, the bandwidth hours specified in a local working arrangement must be of no more than a 12-hour period falling completely within the limits of 0600h and 2000h Monday to Friday.
F5.5Where a local working arrangement is proposed that would introduce bandwidth hours which:
a. exceed 12 hours per day; or
b. do not fall completely within the hours specified in paragraph F5.4,
the Secretary may approve the local working arrangement in consultation with the Director Defence Workplace Relations, who will notify the relevant union before approval, consistent with paragraph A4.4.”
The 2012 Agreement did not define “the standard conditions” or “standard working hours”. It referred to “a standard day” of 7.5 hours in length (clause F1.1) and “standard hours” (for limited purposes that are not presently relevant). By clause F1.4, employees were required “to come to a mutual arrangement with their supervisor concerning an agreed pattern of hours over the working week.” Availability of work affected an employee's attendance outside the standard day, and attendance patterns were to be discussed during the performance exchange process in accordance with Table D1 of the 2012 Agreement. “Standard Weekly Hours” was defined to mean “37.5 hours for a full-time employee, or the approved weekly hours for a part-time employee.” Clause 27 of Annexure E to the 2012 Agreement referred to “the notion of ‘standard working hours’” and was based on the assumed standard day of 7.5 hours.
Clause F2 of the 2012 Agreement dealt with flexible working hours. Generally, it established the principle that except for employees working according to a continuous shift roster, an employee classified as APS Level 6 or below was able to access flexible working hours. Accessing flexible working hours required the agreement of the employee’s supervisor, who were first required to assess the likely impact of accrual and reduction of ‘flextime’ on operational priorities.
Clause F2.2 dealt with access to flexible working hours and effectively restated the principle above. Employees at APS Level 6 (or equivalent) and below who were not required to work according to a continuous shift roster were able to access flexible working hours, subject to operational requirements under which they would not be able to access flexible working hours arrangements.
Clause F2.3 dealt with the “bandwidth” of working hours. Except in circumstances not presently relevant, the span of hours for working an employee’s required hours on a flexible basis was 7.00am to 7.00pm, Monday to Friday, excluding public holidays. An employee eligible for flexible working hours under clause F2.2 could work more than 7.5 hours per day but had to work those hours within the stated bandwidth above.
Clause F7 of the 2012 Agreement dealt with Shiftwork. Relevantly, it stated:
“F7 Shift work
Principle
F7.1Defence is required to deliver continuous capability in some areas. This may necessitate the use of shift work arrangements to ensure the appropriate level of staffing.
F7.2An employee is considered to be a shift worker for the purposes of this Agreement and the NES if rostered to perform ordinary hours of duty outside the period 0630h to 1800h Monday to Friday, and/or on Saturdays, Sundays, or public holidays for an ongoing or fixed period.
F7.3Introduction and variation of shift work arrangements. Where necessary as a means of meeting operational requirements, supervisors may introduce shift work or a new shift roster or cycle of shifts (other than 12-hour shifts) following consultation with affected employees and their representatives.
F7.4Where practicable and agreed between supervisors, affected employees and their representatives, the provisions of section F2 may be extended to non-continuous shift workers.”
Clause F10 of the 2012 Agreement dealt with shift penalty payments. Relevantly, clauses F10.1 and 10.2 stated:
“F10.1Eligibility. Employees who are required to perform duty as shift workers are entitled to prescribed shift penalty payments, expressed as a percentage of the employee’s base salary. Shift penalty payments are not taken into account in the calculation of any allowance based upon salary, nor paid with respect to any shift for which any other form of penalty payment is made. Shift penalty rates are in addition to an employee’s ordinary salary for the shift.
F10.2Rates of payment. Eligible employees are entitled to the following rates of penalty payments:
a. 15 per cent loading for rostered and performed ordinary duty on a shift, any part of which falls between the hours of 1800h and 0630h;
…”
The 2017 Agreement
The 2017 Agreement was approved by the Commission on 9 August 2017 and at the time of hearing, remained in operation. It is a comprehensive single enterprise agreement covering Defence and its APS employees below SES level and equivalent (but not locally engaged employees overseas). It also covers the AMWU.
Clause E5 of the 2017 Agreement replaced clause F5 of the 2012 Agreement and is similarly titled “Local working arrangements”. Clause E5 provides:
“E5.1A group of employees or an individual employee and their supervisor may enter into a local work arrangement. Local working arrangements may be further varied in consultation with the relevant employees.
E5.2Subject to paragraph E5.4, a local work arrangement may vary working hours provisions contained in this Agreement except for the following:
a. the definition of a standard day;
b. ordinary hours of duty;
c. the settlement period for flextime;
d. the right of the employee to use excess flex credits within a reasonable period of accumulating them;
e. the application of section E3 of this Agreement;
f. the right of the employee to seek review of a decision, made by their supervisor, that will reduce the employee's access to flexible working hours, where such variation has not been mutually agreed between the supervisor and employee; and
g. the prescribed retention period for attendance records.
E5.3A local working arrangement must be fully documented and can only be varied in consultation with the relevant employees.
E5.4Subject to paragraph E5.5, the span of hours specified in a local working arrangement must be of no more than a 12-hour period falling completely within the limits of 0600h and 2000h Monday to Friday.
E5.5The Secretary may approve the local working arrangement, in consultation with the Director APS Workplace Relations, where a local working arrangement is proposed that would introduce a span of hours which:
a. exceed 12 hours per day; or
b. do not fall completely within the hours specified in paragraph E5.4.”
Section E3 of the Agreement deals with excessive work hours, and generally limits work to no more than 10 hours per day, provides for the payment of overtime for work beyond 10 hours per day and clarifies that working more than the standard day is dependent on availability of work and supervisor approval.
The AMWU submits that clause E5 is largely the same as clause F5 of the 2012 Agreement, but there are important differences. These are:
1. Removing the “Principle” in clause F5.1, which permitted the making of local agreements on the operation of working hours which varied from the standard conditions at the initiation of management or employee(s),
2. Broadening the scope of the working hours provisions of the Agreement that could be varied so that it was no longer limited to variations to standard working hours,
3. Removing the distinct purpose and documentation requirements as between individual and group local working arrangements. In the 2017 Agreement, both types of arrangements can simply be entered into and are to be “fully documented”,
4. Allowing local working arrangements to be varied in consultation with relevant employees, rather than only by agreement,
5. Confirming that any of the Agreement’s working hours provisions can be varied by a local working arrangement unless they are on the list of specified matters. A limitation on variations to the “length of a standard week” in the 2012 Agreement was removed and replaced with a new limitation on changes to “ordinary hours of duty”, and
6. Removing the requirement to notify the relevant union when the Secretary of Defence approves a local working arrangement that introduces a span of hours of more than 12 hours per day or does not fall completely within the hours of 0600h and 2000h Monday to Friday.
Terms of the 2017 Agreement that can be varied under a local working arrangement are those dealing with working hours. These are found in Part E, titled “Working Arrangements”, which is more prescriptive in relation to hours of work than the 2012 Agreement. Under clause E1.1, ordinary hours of duty for full time employees are 37.5 hours per week for the purpose of calculating pay, attendance and flextime. This reflects the standard day of 7.5 hours for full time employees other than shift workers.
Clause E1.2 defines “standard hours” as 8.30am to 12.30pm and 1.30pm to 5.00pm, Monday to Friday or as varied under a local working arrangement. Clause E1.5 requires employees to record their actual time of commencing and ceasing duty each day. Clause E2 deals with the ordinary span of hours within which employees can work flexible hours and sets the span as 7.00am to 7.00pm, Monday to Friday, excluding public holidays and except for prescribed categories of employee including, relevantly, shift workers and “employees working under a local work arrangement made under section E5 … which has varied the span of hours”.
Under clause E2.3, an employee other than a shift worker is to work their ordinary hours of duty within the span of hours in a pattern agreed to with their supervisor, taking into account the employee's personal circumstances. If agreement cannot be reached, section E7 applies. Under section E7, an employee can be directed to revert to “standard hours”, defined as those stated in clause E1.2 or as directed by the supervisor, taking into account the individual's circumstances and “the workplace norm”.
Clause E6 provides for flextime. Flextime is generally available to employees who are not otherwise reverted to the standard hours for a specified period, except for Executive Level employees, those working according to a shift roster, or those removed from flextime for a period because of failure to comply with the flextime provisions.
Clause E11 of the 2017 Agreement deals with Shift work. Relevantly, it provides:
“Shift work
E11.1 An employee is considered to be a shift worker for the purposes of this Agreement and the National Employment Standards if rostered to perform ordinary hours of duty outside the period 0630h to 1800h Monday to Friday, and/or on Saturdays, Sundays, or public holidays for an ongoing or fixed period.
E11.2 Introduction and variation of shift work arrangements. Where necessary as a means of meeting operational requirements, supervisors may introduce shift work or a new shift roster or cycle of shifts (other than 12-hour shifts).
…
E11.4 Consultation is to be undertaken with employees on proposed shift arrangements, including changes to rostered hours, consistent with section A6.”
Notably absent from the 2017 Agreement is a provision for agreement to be reached on flextime for non-continuous shift workers equivalent to clause F7.4 of the 2012 Agreement. Clause E13 does provide for “Time off arrangements”. Described as “similar to flex”, these arrangements permit an employee to request time off during rostered hours and work those hours at a later time. The time off is paid at the shift work rate that would have applied to the hours taken off.
Consideration
The principles to be applied in the interpretation of enterprise agreements are well established and were recently summarised by a Full Bench of the Commission in Construction, Forestry, Mining and Energy Union & Ors v Svitzer Australia Pty Limited.[1] It is not necessary to set these principles out in full. In short, the first question is whether the disputed agreement terms have a plain meaning or are instead ambiguous or susceptible to more than one meaning, starting with the ordinary meaning of the words read as a whole and in context. The language of disputed terms is to be construed objectively, having regard to both context and purpose. A narrow or pedantic approach to interpretation is to be avoided. All words of the text should be given some work to do. Where ambiguity is found, evidence of the surrounding circumstances can be admitted, but only to establish objective background facts as they relate to the meaning of the disputed terms. Post‑agreement conduct may also be relevant if it shows a meeting of the minds.
In some respects, this dispute is about the application, rather than interpretation, of the 2017 Agreement and its predecessor. However, there are aspects of the dispute that involve a question of construction.
The first of these is whether the word “arrangement” as it is used in connection with “local working arrangements” in clause E5 of the 2017 Agreement should be understood as synonymous with the word “agreement”. In my view, the answer is “No”. Clause E5.1 does not use the word “agreement” to describe the arrangements that can be entered into under clause E5. Such arrangements can be varied by Defence in consultation with relevant employees. Although consultation is required before any changes are made to the arrangement (including by clause E11.4), the agreement of affected employees is not. A consistent approach should be taken to apply at the point of entry into such an arrangement in the absence of textual considerations to the contrary. The word “arrangement” should accordingly be given its ordinary meaning, which is not limited to circumstances arrived at by agreement. That is, it could also include circumstances arising from a direction given by Defence.
A second question of construction is the meaning of the phrase “must be fully documented” in clause E5.3 of the 2017 Agreement. The text of the agreement provides no guidance in this regard. Supplementary Defence policies do not form part of the 2017 Agreement and are not admissible as an aide to interpretation, although they set out how Defence expects the phrase to be applied in practice. But nor is it necessary to have regard to extrinsic evidence of this kind. The phrase “must be fully documented” has a plain and ordinary meaning and is neither ambiguous nor uncertain. It means simply that all terms of the relevant local working arrangement must be recorded in writing. It is not necessary to strain the meaning of this term by imposing an additional layer of regulation to the requirement on the basis that local working arrangements can vary working hours provisions of the 2017 Agreement. The fact that variations can be made was a matter agreed by the parties when the enterprise agreement was made. If the parties also agreed on a more prescriptive documentation regime for the purposes of the 2017 Agreement, their agreement is not apparent on its terms. Nor is there any separately available and admissible evidence of a meeting of minds in this regard.
The arrangement of working hours
Until 2013, and except for when they acted for short periods as Duty Technicians on the shift work roster, Mr Matujza and Mr Christensen worked an alternating roster on a standard day of 7.5 hours, either from 7.00am to 3.30pm or from 8.00am to 5.00pm, Monday to Thursday and a shorter day on Friday, starting at 7.00am or 8.00am and finishing at 12.00pm. This gave on site coverage of the Maintenance Manager role from 7.00am to 5.00pm on Monday to Thursday, and from 7.00am to 12.00pm on Friday.
In mid- to late- April 2013, then Squadron Leader David Borg decided on a change to the Maintenance Managers’ roster. The purpose of the change was to broaden coverage so that at least one Maintenance Manager was on the base between the hours of 6.00am and 6.00pm on weekdays. This meant bringing forward daily (early shift) start times to 6.00am (from 7.00am or 8.00am).
After Squadron Leader Borg explained the need for change and directed that it occur, there was a discussion between Mr Matujza, Mr Christensen, and their supervisor, Mr Wesley Walker, about how the change would be implemented. The conversation went something like this:
Mr Walker: “How do you want to arrange your 6.00am starts?”
Mr Walker:“If one of you starts at 6.00am and the other finishes at 6.00pm, the shifts can overlap in the middle.”
Mr Matujza
and
Mr Christensen: “Alright.”Mr Walker:“Do you want to do it as a 1 week or 2 week or 1 month rotation? It doesn’t matter who starts at 6.00am as long as one of you does, and you can rotate.”
Mr Matujza
and
Mr Christensen: “A 1-week rotation.”Mr Walker: “Do 6.00am starts cause any problems for either of you?”
Mr Matujza
and Mr Christensen: “No.”Mr Christensen: “Does this mean we will be getting shift payments?”
Mr Walker: “I don’t think so.”
Mr Christensen: “Starting at 6am qualifies for shift.”
A couple of days later, there was another discussion about the change between Mr Walker and Mr Christensen, in words to the effect:
Mr Christensen: “The 15% penalty applies because we will be starting at 6am.”
Mr Walker:“I can’t justify paying 15% for just one hour, it’s not worth it.”
Mr Christensen: “It’s for the whole day, not just the hour.”
Mr Walker:“How can you be paid shift for the whole day when it’s only for an hour?”
Mr Christensen: “It’s in the DECA - have a read of it” (in context, “DECA” was a reference to the 2012 Agreement).
In early May 2013, Mr Walker and Mr Christensen had a further, more heated discussion about the roster change. This included, in words to the effect:
Mr Christensen: “I’m going to show you in the DECA where it says we get shift
pay for the whole day.”
Mr Walker: “There’s no need, I have a hard copy.”
Although the employees deny it and Mr Walker’s evidence is general in nature, there must have been a further discussion between Mr Walker, Mr Matujza and Mr Christensen, because ultimately an arrangement was settled upon that involved the working of an Early Supervisor or Late Supervisor shift, with flexibility (and access to flex time) in relation to how the overlapping hours between 10.00am and 2.00pm would be managed. This is apparent from the hours worked after commencement of the change as recorded in the roster and attendance diaries of the employees, and from the formal record entered into the performance agreements (known as a “PFADS”) for each employee from September 2013.
Mr Walker’s account of these conversations is that he offered Mr Matujza and Mr Christensen a choice of becoming shift workers (attracting a 15% shift loading) or retaining their access to ‘flextime’ under the 2012 Agreement. This is denied by Mr Matujza and Mr Christensen. Mr Matujza says the issue of flex time was never raised. I do not accept either version of events as entirely correct, for three reasons.
Firstly, Mr Walker concedes that at the time of these discussions, he misunderstood how the 2012 Agreement applied in relation to whether the 15% shift loading would apply to time worked before 6.30am only or for the whole shift. This, in my view, was largely what the disagreement between he and Mr Christensen was about. To the extent that there was a discussion about flex time, it was focused on the times of the day that flex time could be used rather than whether the employees could access the benefit at all. In other words, it was not put to Mr Matujza and Mr Christensen as a “choice”.
Secondly, and further to the observation above, the 2012 Agreement did not require a choice to be made between shift penalties and flex time. Clause F7.4 expressly provided that “where practicable and agreed between supervisors, affected employees and their representatives”, flex time could be extended to non‑continuous shift workers in accordance with clause F2 of the 2012 Agreement. The nature of the proposed change was capable of being characterised as “non-continuous shift work” for the purpose of the 2012 Agreement. There was also the separate option of “make up time” (which became “time off arrangements” in the 2017 Agreement) if flex time could not be agreed.
Thirdly, I do not find Mr Walker’s evidence persuasive in relation to offering Mr Matujza and Mr Christensen a choice between a rigid shift work roster (such as applied to Duty Technicians) or a continuation of their relatively flexible approach to working hours. Mr Walker had been tasked with implementing broader coverage from the Maintenance Managers across the hours of 6.00am to 6.00pm, Monday to Friday. This span of hours was easily covered by the Maintenance Managers with time to spare, making it amenable to a flexible hours arrangement. It did not require coverage across 7 days of the week including morning, day and night shifts as applied in relation to Duty Technicians.
I do not accept Mr Matujza’s evidence to the effect that Mr Walker said he would not process shift pay forms if they were submitted, or that prior to 2018 Mr Walker ever described Mr Matujza and Mr Christensen as shift workers in the legal sense while they were working as Maintenance Managers. It is industrially common to use the word “shift” interchangeably in relation to both day‑ and shift‑ workers and I prefer Mr Walker’s evidence about his lack of precision in this regard. Further, Mr Matujza’s evidence conflates allegations in relation to his status as a ‘shift worker’ with his separate dialogue with Defence at the time about short‑term acting arrangements as a Duty Technician or a proposed flexible working arrangement for family reasons that never took effect.
For the same reason, I am not persuaded by Mr Christensen’s evidence that Mr Walker foreshadowed a refusal to process shift pay forms. And it seems unlikely that the reason the issue was then not pursued by Mr Christensen for almost 5 years was because (to paraphrase) he thought there was no point. Mr Christensen has a proudly assertive approach to raising workplace disputes as he considers necessary. At the time, he felt strongly that he was right about how the 15% shift penalty applied and that Mr Walker was wrong. Ultimately, nothing turns on the conflict and it is not necessary to resolve. It is not in dispute that despite their disagreement at the time, the change of hours was implemented with effect from 9 May 2013 and continued until it was formally challenged in early 2018.
On and from 9 May 2013, Mr Matujza and Mr Christensen continued to work an alternate roster. With the change in hours, the usual pattern of work required one to work the “Early Supervisor” shift from 6.00am to 2.00pm Monday to Friday, the other to work the “Late Supervisor” shift from 10.00am to 6.00pm Monday to Thursday and 8.00am to 4.00pm Friday, and for them to swap around the following week. In practice, their actual hours of work varied according to both workplace and individual needs and preferences.
In September 2013, the hours pattern worked by Mr Matujza and Mr Christensen were recorded in Part C of the “PFADS” between Defence, Mr Matujza and Mr Christensen respectively. Generally, a PFADS operated from September to August each year. Under Part C of the PFADS, the parties were requested to record “Work arrangements and leave plans”, such as “patterns of attendance, standard weekly hours, local work arrangements, Executive Level working arrangements, travel requirements, flextime or time off in lieu arrangements and flexible work options etc.” After their supervisor had checked off key elements of the PFADS, including that “work arrangements have been discussed and documented”, employees were asked to sign an acknowledgement that they “agree to this performance agreement” and did so.
The first PFADS after implementation of the roster change covered the period from September 2013 to August 2014 (the 2014 PFADS). In the 2014 PFADS for Mr Christensen, Part C recorded the following:
“Early Supervisor 0600 - 1400h Mon Fri;
Late Supervisor 1000 - 1800h Mon - Thu;
Late Supervisor 0800 - 1600h Fri;
Flex time to be coordinated between the two MMs for the cross over period 1000 - 1400h daily and MNTCDR for other times.”
The same record was made in the PFADS for Mr Christensen for the 2015 and 2016 years. The record made in the 2017 PFADS (from February to August 2017) was slightly different:
“Early Supervisor 0600 - 1400 Mon - Fri;
Late Supervisor 1000 - 1800 Mon - Fri;
Supervisor Day 0700 - 1500 Thu and Fri in each off pay fortnight;
Flex time to be coordinated between the two MMs for the cross over period 1000 - 1400h daily and MNTCDR for other times.”
In the PFADS from September 2017 to February 2018, the arrangement was modified to remove the “Supervisor Day” shift arrangement:
“Early Supervisor 0600 - 1400h Mon Fri;
Late Supervisor 1000 - 1800h Mon - Fri;
Flex time to be coordinated between the two MMs for the cross over period 1000 - 1400h daily and MNTCDR for other times.”
In the 2014 PFADS of Mr Matujza, Part C recorded this:
“Flexible work arrangement IAW DECA F2 Flexible Working Hours to allow work / family balance.
Nominal work hours:
Early Supervisor 0600 - 1400h Mon Fri;
Late Supervisor 1000 - 1800h Mon - Thu;
Late Supervisor 0800 - 1600h Fri;
Flex time to be coordinated between MMs for the cross over period 1000 - 1400h daily and MNTCDR for other times.”
The first sentence of this record was plainly a reference to Mr Matujza’s request for flexible working arrangements for family reasons rather than to a local working arrangement for operational reasons. Although Mr Matujza’s request for a change in his hours of work had not yet been approved or implemented, it was squarely in contemplation for the period covered by the 2014 PFADS. At the time the record was made, Mr Matujza had been working the new roster for approximately 3.5 months. The request for flexible working arrangements was made 4 days before the end of the 2013 PFADS on 27 August 2013. The 2014 PFADS was made one month later, on 27 September 2013. Although the 2014 PFADS did not confirm the arrangement that Mr Matujza had proposed, it referred to the existing roster pattern as his “nominal work hours” and in that way indicated that changes might be made to give effect to the request for flexible working arrangements.
As things transpired, the flexible working arrangement that Mr Matujza had requested was not required. Accordingly, no reference to the arrangement was made in the 2015, 2016, 2017 and 2018 PFADS for Mr Matujza. The PFADS continued to record the same roster pattern and access to flex time as had applied since 2013 with a modified arrangement for “Supervisor Day”:
“Early Supervisor 0600 - 1400h Mon Fri;
Late Supervisor 1000 - 1800h Mon - Fri;
Supervisor Day 1000 - 1400h Thu and Fri in each off pay fortnight;Flex time to be coordinated between the two MMs for the cross over period 1000 - 1400h daily and MNTCDR for other times.”
Other matters
Submissions reliant on the fact that Mr Matujza and Mr Christensen worked shift work as Duty Technicians are not relevant to determination of the dispute. This work was the exception rather than the rule. There is no dispute that when this work was performed, Mr Matujza and Mr Christensen were treated as shift workers and paid accordingly. Submissions that rely on communication between the parties about Mr Matujza’s flexible working arrangements request are similarly misconceived.
In reply submissions, the AMWU queried the validity of arrangements between Defence, Mr Matujza and Mr Christensen on the basis that they were made separately with the two employees rather than as a “group” local working arrangement. The submission arises from the 2012 Agreement’s distinction between the recording of local working arrangements made with a group of employees and those made with an individual employee and their supervisor. As I noted above, this distinction does not appear in the 2017 Agreement and nor does the 2017 Agreement require a local working arrangement to be the result of agreement. The recording arrangements for local working arrangements in the 2017 Agreement apply equally to group and individual local working arrangements. Finally, the 2017 Agreement does not preclude the option of making several individual local working arrangements to the same effect in place of one local working arrangement covering each employee in the affected group.
Finally, and although desirable for parties to have clarity about the terms of arrangements they enter into, a failure to describe local working arrangements by using those precise words, or to record expressly that the arrangements are made under clause E5 of the 2017 Agreement, does not invalidate an arrangement otherwise validly entered into. It will always be a question of fact as to whether a local working arrangement has been entered into and on what terms, but enterprise agreement terms are to be construed broadly having regard to their context and purpose. Similarly, a failure to follow Defence policy in relation to how local working arrangements are to be recorded would not render the arrangement invalid. Although the policy might provide practical guidance about implementation of the 2017 Agreement, it does not alter the legal effect of terms of the enterprise agreement itself.
Conclusion
Although the change in roster pattern was first implemented some years before the 2017 Agreement commenced, by the time it came into operation, Mr Matujza and Mr Christensen had been agreeing to the hours detailed in their PFADS for many years. In this respect, I am satisfied that by the time this dispute arose, Defence had entered into local working arrangements with Mr Matujza and Mr Christensen about the work pattern described in their respective PFADS at all relevant times during the operation of the 2017 Agreement.
The arrangements were fully documented in the relevant PFADS, because each PFADS recorded in writing what had been agreed: that is, a rotating 1-week roster with regular shift hours and days and access to flex time. These arrangements varied the standard hours of work prescribed in clause E1 of the 2017 Agreement within the bandwidth applicable to local working arrangements and in addition, gave the employees access to flex time.
Disposition
The dispute is determined accordingly.
COMMISSIONER
Appearances:
J Gordon for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).
V Bulut of Counsel for the respondent.
Hearing details:
2024.
Sydney:
April 16
May 14.
[1] [2023] FWCFB 259.
Printed by authority of the Commonwealth Government Printer
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