“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v NRMA Limited
[2017] FWC 5658
•18 DECEMBER 2017
| [2017] FWC 5658 |
| 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
NRMA Limited
(C2017/3106)
| DEPUTY PRESIDENT DEAN | SYDNEY, 18 DECEMBER 2017 |
Application to deal with a dispute.
On 9 June 2017 the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) filed an application pursuant to s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with a dispute with NRMA Limited (NRMA).
The application was made in accordance with clause 17.2 (Dispute Settlement Procedure) of the NRMA Patrol Enterprise Agreement 2014 (the Agreement).
The Agreement covers NRMA, its employees who are engaged as Patrols in NSW and the ACT and the AMWU. It has a nominal expiry date of 28 February 2018.
The matter in dispute relates to whether Mr Tamouz Alami, an NRMA employee, is able to refuse to sell batteries as part of his duties as a Patrol.
The dispute was the subject of conciliation before me on 20 June 2017 and 4 July 2017 and remained unresolved. The application proceeded to hearing on 4 October 2017, with Ms K Presdee appearing on behalf of the AMWU, and Ms R Bernasconi appearing, with permission, for NRMA.
Issue to be determined
The parties agreed that the dispute can be determined by answering the following question:
‘Is NRMA able to rely on the ‘Patrol Requirements’ clause to compel Mr Alami to continue to sell batteries as part of his duties?’
The resolution of the dispute therefore turns upon the interpretation of particular provisions in the Agreement.
In reaching my conclusion, I have had regard to the principles applicable to the construction of an enterprise agreement which were canvassed in detail in Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd[1] (Golden Cockerel) and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Berri Limited[2] (Berri).
For the reasons set out below, I have found that the Agreement does allow NRMA to compel Mr Alami, and other Patrols, to sell batteries as a part of their duties.
Background
NRMA provides emergency roadside assistance to members in NSW and the ACT. A Patrol is an NRMA employee who provides emergency roadside assistance to NRMA members. Patrols employed by NRMA are trade-qualified as either light vehicle mechanics or auto electricians.
In the Sydney metro area, if a Patrol tested a battery and found it to be faulty they would refer the member to Club Assist, who would exclusively provide mobile battery sales and fitting under contract to NRMA members.[3]
NRMA gave evidence that, due to competitor activity, there has been a steady decline in work for Patrols over the years. Therefore, NRMA decided to implement a program for Patrols to sell batteries within the Sydney metro area. This implementation formed part of NRMA’s ‘first service resolution’ strategy, which aimed to increase the amount of jobs that could be resolved by Patrols in the first instance, rather than being referred to nominated suppliers.[4] This program was implemented in around June or July 2016, after a period of consultation and several Consultative Committee Meetings which began in February 2016.
Both parties agreed that at the time NRMA put forward the proposition for Sydney metro Patrols to carry and sell batteries, the AMWU or Consultative Committee did not raise any issue regarding whether Patrols could or could not sell batteries under the scope of the Agreement.[5] The Consultative Committee agreed that it should approach individual Patrols who would be suitable to sell batteries and ask them to perform this work, rather than direct employees to undertake such duties.[6]
Many of the Patrols in regional areas (Canberra, Newcastle and Wollongong) have already been carrying, selling and fitting batteries from around 2012.[7] NRMA submitted that this was being done within the scope of the 2011 Enterprise Agreement and the Patrols were not receiving any extra payment for doing so.[8] The AMWU submitted that this was a part of a trial that never officially ended and that there had been no report back to demonstrate the outcome of this trial.[9]
Mr Alami has been employed by NRMA as a Patrol since 1 March 1993. As an AMWU delegate and member of the NRMA Consultative Committee, Mr Alami recalls discussing the battery sales program at a Consultative Committee Meeting in April 2016. Mr Alami asserts that during this meeting the Chief Executive Officer, Mr Rohan Lund, stated that there would be some form of payment to Patrols for the sale of batteries.[10]
Mr Alami gave the following evidence in relation to the proposal of the battery sales program:
‘The AMWU representatives had a discussion about the proposals to sell batteries. Collectively we believed that it would help job security, because it brought a function that was currently being performed by an outsider provider back into the company. It would also be good for the members. We also believed that it would be good for NRMA as it would bring in more money for the company and, so we believed, would also result in more money for patrols.’[11]
Mr Alami began selling batteries as part of his Patrol duties in or around June 2016. He believed his involvement was voluntary, and that at some point, he would receive some form of additional remuneration for this work.[12] Mr Alami said that the AMWU continued to press the issue of remuneration for Patrols selling batteries but NRMA never agreed. Patrols were later advised by NRMA that the sale of batteries formed part of their duties and was covered under the Agreement.[13]
On or around 19 April 2017, Mr Alami rang his Manager and advised that he no longer wished to be a part of the battery sales program. He subsequently had the batteries removed from his work vehicle.[14] The following day, Mr Alami was advised by his Manager that if he did not put the batteries back in his vehicle he would be facing disciplinary action that could possibly result in termination of his employment.[15]
Mr Alami lodged a dispute the following day over whether he could be directed to perform the sale of batteries under the Agreement. On 9 June 2017, the dispute remained unresolved, therefore the AMWU lodged the current application with the Commission on Mr Alami’s behalf.
There is no dispute that the Commission has jurisdiction to hear and determine this matter.
Relevant provisions in the Agreement
Clause 17.2 of the Agreement sets out the steps to be followed when a dispute arises:
17.2 Dispute settlement procedure
This procedure will apply to any grievance arising under this Agreement, the National Employment Standard (including extended unpaid leave), the General Protections Provisions of the Act and any matter pertaining to the employment relationship.
All grievances will be addressed quickly and fairly.
All parties involved commit to keep open lines of communication regarding the status throughout the grievance process.
There is a commitment by all parties to seek resolution at the earliest opportunity and to the extent possible at the earliest stage of the grievance process.
In order to facilitate the procedure in this clause:
1. The party with the grievance must notify the other party in writing of the full details of the grievance, at the earliest opportunity
2. Throughout all stages of the procedure relevant facts must be clearly identified and recorded
3. Sensible time limits (generally no longer than 7 days) must be allowed for completion of the various stages of discussion. However, the parties must co-operate to ensure that the disputes resolution procedures are carried out as quickly as possible
4. Either party may raise the issue to a higher step.
The following procedures apply to all parties covered by this agreement;
STEP 1: The Patrol, and where requested the Union Delegate, will raise the matter with the Patrol’s manager in writing and with available supporting documentation for resolution.
STEP 2: If not resolved in the first instance, the Patrol, and where requested the Union Delegate, will meet with a more senior manager for resolution.
STEP 3: If not resolved, the Patrol, Union Delegate and/or the Union Organiser, will meet with the next level senior manager for resolution.
STEP 4: If discussions fail to resolve the dispute in accordance with the above, the matter will be referred, pursuant to this Agreement, to Fair Work Commission (FWC) for the purposes of Conciliation.
STEP 5: If the parties involved fail to resolve the dispute in accordance with the above, either party may request FWC to arbitrate the matter. The parties agree to act in accordance with the decision of FWC. FWC may exercise the procedural powers in relation to hearings, witnesses, evidence and submissions which are necessary to make the arbitration effective.
The parties will comply with directions given by FWC for the purpose of carrying out its functions under this clause fairly, quickly and in a way that avoids unnecessary technicalities and legal forms.
The decision of the Conciliator will bind the parties, subject to either party exercising a right of appeal against the decision to a Full Bench.
Work will continue as normal or status quo while the parties utilise this procedure to resolve the matter and no party will be prejudiced as to final settlement by the continuance of work in accordance with this sub-clause.
Note: Both the Patrol and Employer may involve their representative (including legal representative) in any discussions (subject to clauses 17.1 and 17.2), as a means of resolving the matter.
Clause 11 of the Agreement is relevant to the current dispute and provides:
Part 11 Patrol requirements
1. Patrols employed in New South Wales must be accredited by the Motor Vehicle Repair Industry Authority of NSW, confirming their trade or equivalent qualifications relevant to the delivery of roadside assistance services and products;
2. Patrols employed in the Australian Capital Territory will need to provide documentary evidence confirming their qualifications relevant to the delivery of roadside assistance services and products;
3. Patrols must hold a current and relevant class of drivers’ licence throughout the course of employment. Any suspensions or cancellations must be notified to management in writing immediately;
4. Provided that such duties are not designed to promote deskilling, NRMA may direct a Patrol to carry out such duties as are within the limits of the Patrols skill, competence and training including the minor servicing or minor repairs of their Company provided vehicle at a suitable location or NRMA provided facilities where appropriate;
5. Patrols are expected to refer and support the promotion or sale of approved NRMA group products (including fitting batteries) and services.
AMWU Submissions
The AMWU’s outline of submissions commence by stating that the dispute is about clause 11 – Patrol Requirements, with particular reference to clauses 11(4) and 11(5) of the Agreement. It relies on the wording of these clauses to make good its case that Mr Alami is able to refuse to sell batteries as part of his Patrol duties, because the sale of batteries is not encompassed by either clause 11(4) or 11(5) of the Agreement.
The AMWU acknowledged that clause 11(4) of the Agreement broadly deals with the performance of duties, notwithstanding the specific inclusion of minor servicing and repair of company vehicles. However, the AMWU submitted that clause 11(5) is the most relevant clause to the present dispute as it is the only clause that specifically mentions batteries.[16]
The AMWU asserted that clause 11(5) outlines a new and separate requirement for Patrols, which on their interpretation, means that the duties pertaining to fitting batteries is not part of the broad duties contained in clause 11(4).
The AMWU submitted that the wording of clause 11(5) is not ambiguous and, if taken as its plain meaning, the words ‘refer and support the promotion and sale’ suggests that another entity would be performing the action of the ‘promotion or sale’.[17] The AMWU argued that it is not the duty of the Patrol to perform the sale. It submitted that the duties outlined in clause 11(5), if expressed as the actual duties of a Patrol in relation to batteries, should be taken to mean that a Patrol is required to refer a member who needed a new battery to a related NRMA entity, such as Club Assist. However, if a member did not follow the referral, the Patrol would be able to install a new battery that had been provided by a member.[18]
The AMWU submitted that clause 11(5) does not include a power to direct a Patrol to sell batteries; instead, it submitted during the course of the hearing that the purpose of the clause is to ‘boost referrals’ and to ‘boost NRMA group products and services’.[19]
The AMWU agreed that the ‘fitting’ of batteries is explicitly included in the Agreement and accept that the diagnosis of battery problems and the fitting of replacement batteries have always formed part of a Patrol’s duties.[20] However, the AMWU argued that the words ‘fitting batteries’ suggests that a Patrol can install batteries into a vehicle but this does not extend to the sale of batteries, except as part of a trial process, and therefore selling batteries does not form part of their duties under the Agreement.[21]
The AMWU relied on the evidence provided by Mr Jon Street, former NRMA Patrol, surrounding the 2014 Agreement negotiations. Mr Street believed he attended every negotiation meeting where the issue of batteries was discussed and there was no discussion about including the sale of batteries within the scope of clause 11.[22]
The AMWU concluded that the sale of batteries is not encompassed by either clause 11(4) or 11(5) and therefore NRMA cannot rely on these provisions to direct Mr Alami to sell batteries.
The AMWU submits that if the Commission finds that its interpretation of the clause is correct, the final determination of the dispute requires orders to be issued.
The AMWU seeks the following order from the Commission:
‘That the question of the assignment and re-assignment of battery sale patrol vehicles (including the ability to relinquish such a vehicle) be reviewed through the Consultative Committee process as a matter of urgency.’
The AMWU contended that this issue be referred back to the Consultative Committee so that the parties could come to an agreement on how Patrols can bring their voluntary arrangement of selling batteries to an end, and to discuss what rewards and recognition would be available to the Patrols selling batteries.[23]
I have given careful consideration to all of the submissions made by the AMWU, even if they are not specifically referred to in this decision.
NRMA’s submissions
NRMA submitted that it has the right to direct Mr Alami, and other Patrols, to perform battery work which includes carrying, selling and fitting batteries, pursuant to clause 11(4) of the Agreement.[24]
NRMA argued that the relevant clauses to the dispute are clear and unambiguous and the Commission must therefore determine the dispute without having regard to the surrounding circumstances.[25]
NRMA argued that clause 11(4) provides express limits on its right to direct a Patrol to carry out particular types of duties, namely, that such duties must not be designed to promote deskilling and the duties must be within the limits of the Patrol’s skill, competence and training.[26] It was NRMA’s position that neither of these exceptions apply to the direction to sell batteries.[27] Further, it asserted that the AMWU had not provided any evidence to suggest that the direction to carry and sell batteries would promote deskilling or be outside of the limits of the skill, competence and training of the Patrols.
NRMA submitted that clause 11(4) does not contain any limits to say that the Patrols will only be required to perform duties that were known to them, and that were in existence, at the time the Agreement was entered into.[28]
NRMA argued that clause 11(4) is identical in substance to clauses 13(d) and (e) in the 2011 Agreement and that there was no relevant change arising from the 2014 Agreement to NRMA’s ability to direct Patrols to perform work within their skill, competence and training.[29]
Mr Chris Nolan, NRMA General Manager, Car Servicing Network, gave evidence that Patrols were required to undergo further training under the 2014 Agreement, which was designed to give Patrols a better understanding of the needs of their members and to equip them to be able to supply, sell, and to refer NRMA group products and services.[30]
NRMA submitted that clause 11(4) is not stated as being ‘subject to clause 11(5)’.[31] It argued that clause 11(5) provides a separate and distinct expectation on Patrols, that in addition to the daily duties, they will do what they can to refer and support work within the NRMA group.[32]
NRMA made oral submissions that it required Patrols to perform a ‘package of work’, which includes carrying, fitting and selling batteries, in the same way that a Patrol is required to carry, fit and sell fuel or spare parts to a customer if they require it.[33]
Mr Simon Denic, NRMA Senior Manager, Service Delivery, gave the following oral evidence in relation to Patrols selling products to members:
‘Prior to carrying batteries, Patrols have transacted ‘sales’ using credit cards and cash for many years where members need to purchase fuel or spare parts (such as fan belts and ignition system components), which are required to fix the vehicle during the roadside assistance and which are then installed by the Patrol.’[34]
During cross examination, Mr Alami agreed that Patrols provide other services to members that they must charge customers for, for example, oils and fuel.[35]
The written submissions filed by NRMA submitted that:
‘Importantly, there are no provisions in the 2014 EA that:
a) Provide that carrying, selling and fitting batteries can only be performed by Patrols by agreement or voluntarily;
b) Provide that carrying, selling and fitting batteries is not within the scope of Patrol duties;
c) Provide that only work that Patrols were doing at the time the EA commenced can be performed and any new work must be performed voluntarily;
d) Otherwise specify the particular duties that a Patrol can or cannot perform (in the nature of a position description or classification descriptor).’
The parties had competing arguments about whether the work being performed in regional areas was part of a trial. Mr Denic gave evidence that fitting and selling batteries became ‘business as usual’ when NRMA introduced the battery sales program into the Sydney metro area in 2016.[36] Mr Nolan gave evidence that the trial did not end, it carried on and ‘became part of what we do as business’.[37] NRMA made oral submissions that it is irrelevant whether it was called a trial or not, as it does not assist the Commission one way or another as to whether NRMA can rely on clause 11(4) to direct Patrols to sell batteries. However, NRMA asserted that the work being done in regional areas does demonstrate that selling batteries is capable of being performed under the Agreement.[38]
Relief sought
The AMWU seeks an order from the Commission, should it be successful in the current application. During the hearing, I directed the parties to the decision of Metropolitan Fire and Emergency Services Board v United Firefighters Union of Australia; Garth Duggan[39] (UFU Decision), and the decision on appeal to the Full Court of the Federal Court in Duggan v Metropolitan Fire and Emergency Services Board[40] (UFU Appeal Decision).
The relevant sections of the UFU Decision are set out below:
‘The Power to make Orders in Private Arbitrations
[60] In the extract of the High Court decision in CFMEU v AIRC above it is made clear that the exercise of judicial power results in an order that is binding of its own force. So too is an order made under the Act pursuant to a specific power to make orders of binding force. In the case of private arbitration, however, the arbitrator’s powers depend on the agreement of the parties, usually embodied in a contract, and the arbitrator’s award is not binding of its own force. An arbitrator’s decision in a private arbitration should be expressed as a determination because it cannot be enforced under the Act as an order.
[61] In submitting to the contrary the MFB seeks to conflate the terms of ss.595 and 739 of the Act. Such reliance is misplaced. Section 595(3) is a limitation on arbitration powers and the issuing of orders in the absence of express authority to do so. Section 739 permits the Commission to arbitrate a dispute if the parties have authorised it to do so under a term of an enterprise agreement. The parties cannot confer a statutory power to make orders of a binding force on the Commission. All they can do is agree, as a matter of contract, to accept the outcome of arbitration. The power to arbitrate is created by the parties’ agreement and is enforceable as a matter of contract. The decision of the Full Bench in Victoria University v National Tertiary Education Industry Union[2015] FWCFB 2892 is not inconsistent with these principles.’
In the final paragraph of the UFU Appeal Decision, the Federal Court said:
‘[94] We note for completeness that it was common ground that, on no view, could the Commissioners orders stand, because he had no power to make them. He had power, as a private arbitrator, to make a determination; he could not make binding orders of the kind which the Commission was empowered to make under the FW Act.’
In response, the AMWU contended that these propositions were contrary to most of the decisions of the Commission and any decision to follow it should be made with caution, and instead submitted that the Commission is able to make any orders it believes necessary to resolve the dispute before it.[41]
The AMWU relied on Victoria University v NTEU[42] and Endeavour Energy v CEPU[43] as precedents for the Commission to make orders in this matter, and relied on the propositions that the Commission has the power to make orders to resolve disputes ‘if appropriate’[44] and acknowledged that whilst there is a limit on the outcomes that could be reached by the Commission, it was not stated that orders could not be made.[45]
NRMA submitted that the Commission is obliged to follow the decision of the Full Bench in the UFU Decision, and as such, an order in the form sought by the AMWU should not, and cannot, be made.[46] In addition, NRMA submitted that referring the question of the assignment and re-assignment of battery sales back to the Consultative Committee to be reviewed would not be an effective resolution of the dispute.[47]
I consider the UFU Decision to be correct, and in any event I am bound to follow the UFU Decision, which was confirmed by the UFU Appeal Decision. Further, the issue of orders does not arise given my finding that the Agreement does allow for NRMA to direct Mr Alami to sell batteries.
Consideration
As set out earlier, the question I need to determine is whether NRMA is able to rely on the ‘Patrol Requirements’ clause to compel Mr Alami to continue to sell batteries as part of his duties.
As set out in Berri, ‘the resolution of the disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose’[48]. It is clear that context and purpose must be considered even when the words of the provision being construed appear, and on their face, to have a clear and unambiguous meaning.
In this matter, it was contended that no ambiguity arose and as such was unnecessary to take account of evidence of surrounding circumstances. I agree there is no ambiguity and accordingly I proceed to interpret the agreement with regard to contextual factors only.
I agree with NRMA’s contention that, pursuant to clause 11(4), it can direct a Patrol to carry, sell and fit a battery. There was no evidence to suggest that these duties were designed to promote deskilling, or that the duties were outside the limits of the Patrol’s skill, competence and training.
I reject the AMWU’s submission that the duties pertaining to fitting batteries are not part of the duties contained in clause 11(4). On the contrary, I am satisfied that clause 11(4) is a very broad clause that encompasses the direction given by NRMA to its Patrols to carry, sell and fit batteries.
It was agreed that Patrols provide other services to NRMA members that involve a sales transaction, for example the selling of fuel or oil, therefore I cannot see how the carrying, selling and fitting of batteries should be treated any differently.
I agree with the submissions of NRMA that clause 11(5) imposes a separate expectation on Patrols to refer and support the promotion or sale of approved NRMA group products (including fitting batteries) and services, and does not limit the duties that a Patrol can otherwise be required to perform.
For these reasons, and having had regard to the Agreement as a whole, I find that NRMA is able to rely on the ‘Patrol Requirements’ clause to compel Mr Alami to continue to sell batteries as part of his duties. The dispute is determined accordingly.
DEPUTY PRESIDENT
Appearances:
K Presdee for the AMWU;
R Bernasconi for NRMA Limited.
Hearing details:
2017.
Sydney:
October 4.
Final written submissions:
AMWU, 9 October 2017.
NRMA, 10 October 2017.
[1] [2014] FWCFB 7447.
[2] [2017] FWCFB 3005.
[3] Exhibit R2, paragraph 11.
[4] Ibid, paragraph 12.
[5] Transcript PN86 and PN348.
[6] Exhibit R2, paragraph 15.
[7] Ibid, paragraph 10.
[8] Exhibit R1, paragraph 5(c).
[9] Transcript PN309.
[10] Exhibit A1, paragraph 10.
[11] Ibid, paragraph 16.
[12] Ibid, paragraph 22.
[13] Ibid, paragraph 25.
[14] Ibid, paragraph 26.
[15] Ibid, paragraph 27.
[16] AMWU Outline of Submissions, paragraphs 16-17.
[17] Ibid, paragraph 18.
[18] Ibid, paragraph 20.
[19] Transcript PN316.
[20] AMWU Outline of Submissions in Reply, paragraph 2.
[21] Ibid, paragraph 26; AMWU Outline of Submissions in Reply, paragraph 3 and Transcript PN305.
[22] Exhibit A3, paragraph 18.
[23] Transcript PN317.
[24] NRMA’s Outline of Submissions, paragraph 17.
[25] Ibid, paragraph 6.
[26] Ibid, paragraph 9.
[27] Transcript PN330.
[28] Transcript PN332.
[29] NRMA’s Outline of Submissions, paragraph 10.
[30] Transcript PN227.
[31] NRMA’s Outline of Submissions, paragraph 8.
[32] Transcript PN334
[33] Transcript PN327-329.
[34] Exhibit R2, paragraph 20.
[35] Transcript PN56-61.
[36] Transcript PN260-263.
[37] Transcript PN197.
[38] Transcript PN343.
[39] [2016] FWCFB 8120.
[40] [2017] FCAFC 112.
[41] AWMU Submissions Re Duggan, paragraph 13.
[42] Victoria University v National Tertiary Education Industry Union[2015] FWCFB 2892.
[43] Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCFCA 82.
[44] [2015] FWCFB 2892 at 27.
[45] [2016] FCFCA 82.
[46] NRMA Submissions in Reply Re Duggan, paragraph 4.
[47] Transcript PN365.
[48] Berri at para 114.
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