“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Custom Coaches Pty Ltd

[2014] FWC 3255

[2014] FWC 3255

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
Custom Coaches Pty Ltd
(C2014/3613)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 16 MAY 2014

Application to deal with a dispute - agreement and award provisions - capacity for an employer to alter starting and finishing times within spread of ordinary hours.

[1] On 24 March 2014 the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) lodged an application pursuant to s.739 of the Fair Work Act 2009 (the FW Act) and the dispute resolution provisions of the Custom Coaches (Sales) Pty Ltd Enterprise Agreement (South Australia) 2013 (the Agreement).

[2] In that application the AMWU sought the assistance of the Fair Work Commission (FWC) in the resolution of a dispute with Custom Coaches over its proposal to change the work commencement times.

[3] The matter was the subject of a conference with me on 24 April 2014. At this conference Custom Coaches confirmed that, in order to better position itselfto undertake additional work, it proposed to change the commencement time of day work from 6.00 am to 7.00 am with corresponding changes to finishing times. The AMWU advised that its members objected to the proposed change and asserted that any change in ordinary hours required that agreement be reached with a majority of employees. The parties were unable to agree on whether the proposed change was able to be achieved without such a consensus.

[4] The parties agreed that the matter to be referred for arbitration was: 1

“Do the provisions of the Vehicle Manufacturing, Repair, Service and Retail Award 2010 (the Award), which are adopted in the Agreement, require that agreement be reached with a majority of the Custom Coaches Adelaide employees as a prerequisite to changes to ordinary hours within the spread of hours referred to in clause 53 of the Award?"

[5] Both the AMWU and Custom Coaches have met their undertakings to provide written submissions and submissions in reply in relation to this issue. I have taken these submissions into account in considering the matter.

[6] There is no dispute that the employees involved in this matter are covered by the Agreement. Equally, there is no dispute that clause 15.3 of the Agreement establishes the jurisdiction for the FWC to resolve a matter such as this, by arbitration. I note that, consistent with clause 15, Custom Coaches has agreed to retain the current hours arrangement pending the determination of this matter by the FWC.

[7] Clause 5.1 states:

“5.1 The terms of the Vehicle Manufacturing, Repair, Service and Retail Award 2010, or successor award(s) ("the Award"), as varied from time to time, are incorporated into this Agreement. If an incorporated Award term is inconsistent with an express term of this Agreement, the express term in the Agreement prevails over the incorporated Award term to the extent of the inconsistency.”

[8] The Agreement does not stipulate starting and finishing times. As a consequence, both parties acknowledged that the provisions of the Vehicle Manufacturing, Repair, Service and Retail Award 2010 (the Award) apply.

[9] Clause 7 of the Agreement states:

“7. NO EXTRA CLAIMS

It is agreed by the Parties to this Agreement that they will not:

7.1 Make any further claims in relation to terms and conditions of employment or any other matter until 1st August 2014.

7.2 Initiate bargaining periods prior to 1st February 2014.

7.3 Engage in any industrial action in support of further claims;

7.4 Take any steps to terminate or replace this agreement without the consent of the other parties prior to 1st August 2014.”

[10] The AMWU position is that clause 7 prevents Custom Coaches from making any further claims and the proposed change represents a claim which is in breach of this provision. 2

[11] In the alternative, the AMWU asserts that the custom and practice of Custom Coaches over the past five years has been to seek the agreement of the majority of employees to proposed changes to ordinary working hours and that changes of the nature now proposed have twice been rejected. The AMWU position is that this custom and practice is demonstrative of the intention of the parties that changes to starting and finishing times will be by agreement only.

[12] The AMWU asserts that the proposed eight hour roster exceeds 38 ordinary hours per week and will negatively impact on the family responsibilities of at least some of the employees.

[13] The AMWU also asserts that the obligations of clause 19 of the Agreement which deals with consultation have not been complied with and that Custom Coaches has not worked with the employees and the AMWU to mitigate against the adverse effects of the proposed changes. 3

[14] The AMWU sought orders from the FWC to stop Custom Coaches from making the proposed changes to ordinary hours until, or unless these changes were agreed by employees. Alternatively, the AMWU sought orders requiring Custom Coaches to genuinely engage in joint problem-solving with its employees and with their representatives to mitigate against the adverse impacts of the changes on employees, before implementing those changes. 4

[15] The Custom Coaches’ position was that, following significant recent trading losses it is proposing a range of initiatives to maintain its future viability. Consistent with that objective, it advised that, on 19 February 2014 it provided the employees with two months notice of its intention to commence day-work one hour later.

[16] Custom Coaches assert that the Award provisions enable it to make this change in the manner proposed. Custom Coaches assert that it has complied with the Agreement consultation requirements. 5

[17] In terms of the 38 hour week, Custom Coaches advised that the current and proposed rosters both provided for rostered day off arrangements consistent with its obligations.

[18] Custom Coaches sought orders allowing it to vary the starting and finishing times in accordance with clause 53.1 of the Award.

Findings

[19] In considering the provisions of the Agreement and the Award I have applied the approach to interpretation recently specified in DP World Brisbane Pty Ltd v MUA. 6

[20] Clause 53 of the Award relevantly states:

“53.1 Ordinary hours of work—dayworkers

(a) Subject to clause 53.3 the ordinary hours of work for day workers are to be an average of 38 per week but not exceeding 152 hours in 28 days.

(b) Ordinary hours of work may be worked on any day Monday to Friday and between 7.00 am and noon on Saturday. In localities where the recognised half holiday is on a day other than Saturday, the day so recognised may be substituted for Saturday for all purposes of this award.

(c) Ordinary hours of work are to be worked continuously, except for meal breaks, at the discretion of the employer between 6.00 am and 6.00 pm. The spread of hours (i.e. 6.00 am to 6.00 pm) may be altered by up to one hour at either end of the spread, by agreement between an employer and the majority of employees concerned or in appropriate circumstances, between the employer and an individual employee.

(d) All work performed outside the spread of hours is to be paid at overtime rates and will be deemed, for the purposes of this subclause, to be part of the ordinary hours of work.

53.2 Maximum daily ordinary hours

The ordinary hours of work prescribed herein will not exceed 10 on any day. Provided that in any arrangement of ordinary hours where the ordinary working hours are to exceed eight on any day, the arrangement of hours will be subject to agreement between an employer and the majority of employees.

53.3 Methods of arranging ordinary working hours

(a) Subject to the employer’s right to fix the daily hours of work for day workers from time-to-time within the spread of hours referred to in clause 53.1(c) and the employer’s right to fix the commencing and finishing time of shifts from time-to-time, the arrangement of ordinary working hours is to be by agreement between the employer and the majority of employees in the enterprise or part of the enterprise concerned.

(b) Matters upon which agreement may be reached include:

(i) how the hours are to be averaged within a work cycle established in accordance with clauses 53.1 and 53.2;

(ii) the duration of the work cycle for day workers provided that such duration will not exceed three months;

(iii) rosters which specify the starting and finishing times of working hours;

(iv) a period of notice of a rostered day off which is less than four weeks;

(v) substitution of rostered days off;

(vi) accumulation of rostered days off;

(vii) arrangements which allow for flexibility in relation to the taking of rostered days off; and

(viii) any arrangements of ordinary hours which exceed eight hours in any day.”

[21] The plain words of the Award make it clear that Custom Coaches has the “right to fix the daily hours of work .... from time to time within the spread of hours”. 7

[22] The change proposed by Custom Coaches is within the spread of hours specified in clause 53.1(c) of the Award. It is only when a change proposed requires employees to work ordinary hours outside of the authorised spread of hours, or where those hours exceed 10 on any day, 8 that the need for majority employee agreement is required.

[23] Accordingly, the exercise of the employer’s right to fix and change daily hours of work cannot be regarded as an extra claim for the purpose of the no extra claim provisions in the Agreement. 9

[24] There is nothing in the information before me that establishes that the effect of the change proposed means that employees will be required to work more than 38 ordinary hours in a week. On the material before me, it simply means that they are being asked to start and finish work one hour later. Hence, no prohibition arises from this element of the change proposed.

[25] It may well be the case that the custom and practice over the last few years has been that Custom Coaches has asked its employees about proposed changes to starting times and has not acted to change those times as a consequence of the employee response. This does not, however, establish any form of prohibition on changes that are permitted under the Award.

[26] The Agreement consultation provisions state:

“19.1 When the Company has made a definite decision to introduce a major changes in production, program, organisation, structure or technology that have significant effects, on the employees of the company, the company must genuinely consult affected Employees and the union covered by this Agreement as early as possible on, inter alia, the introduction of such changes, the effects they are likely to have and the measures for averting or mitigating the adverse effects of such changes.

19.2 To enable the Union to participate effectively in the consultations referred to in clause 19.1 the Company to supply them as early as practicable with all relevant information on the major changes contemplated and the effects they are likely to have. The Company will genuinely consider all Union requests for information. Information may be provided to Union representatives on a confidential basis where appropriate.”

[27] Compliance with this provision was not within the scope of the matter agreed by the parties for this arbitration and hence I do not intend to determine whether or not those consultation provisions have been met in this instance.

[28] However, I would note that on the undisputed information before me, Custom Coaches provided substantial advance notice of the proposed changes and engaged in significant discussions about those changes. To the extent that further consultation about the specific circumstances of individual employees may be necessary, this will depend on information not currently before me.

[29] Secondly, I note that consultation is not synonymous with agreement or consensus and there is no obligation in the consultation provisions of the Agreement for Custom Coaches to reach agreement on a proposed change as a prerequisite for the introduction of that change.

Conclusion

[30] The Award provisions enable Custom Coaches to specify changes to starting and finishing times within the spread of hours. The change proposed is within that spread of hours. Agreement with a majority of the employees affected by that change is not required

[31] To the extent that the AMWU now assert that consultation has not occurred consistent with the Agreement provision, this was not the issue referred to me for determination.

[32] I encourage ongoing consultation relating to particular employee concerns but I note that this falls short of a requirement for ultimate agreement on the change proposal. In the event of a dispute over the consultation provisions this could be referred to me, but, on the material before me, I see no impediment to implementation of the change proposed.

SENIOR DEPUTY PRESIDENT

 1   Directions of 24 April 2014, para [3]

 2   AMWU Submissions, 1 May 2014, para 4

 3   AMWU Submissions, 2 May 2014, para 1

 4   AMWU Submissions, 2 May 2014, para 7

 5   Custom Coaches Submission, 9 May 2014, para 1

 6   [2013] FWCFB 8557

 7   the Award, cl. 53.3

 8   the Award, cl. 53.2

 9   the Agreement, cl. 7

Printed by authority of the Commonwealth Government Printer

<Price code C, PR550654>