“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Premier Coal Limited

[2017] FWC 6607

[2017] FWC 6607

FAIR WORK COMMISSION

RECOMMENDATION

Fair Work Act 2009
s.739—Application to deal with a dispute

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Premier Coal Limited
(C2016/7437)

DEPUTY PRESIDENT BINET PERTH, 12 DECEMBER 2017

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

[1] On 19 December 2016, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) filed an application (Application) with the Fair Work Commission (FWC) pursuant to section 739 of the Fair Work Act 2009 (Cth) (FW Act) to deal with a dispute with Premier Coal Limited (Premier Coal)pursuant to the dispute settlement procedure contained in clause 13 of the Premier Coal Limited Enterprise Agreement 2012-2016 (Agreement).

[2] The dispute concerns the meaning and application of subclauses 16(c)(i)(B) and 16(e) of the Agreement.

[3] On 20 January 2017, 5 April 2017 and 4 May 2017, the parties attended conferences before me with a view to resolving the dispute. The dispute was not able to be resolved at these conferences.

[4] On 26 May 2017, the AMWU requested a recommendation be made by the FWC pursuant to Clause 13(e)(iii) of the Agreement.

[5] Clause 13(e)(iii) of the Agreement provides that “[i]f conciliation does not result in the parties to the dispute coming to an agreed resolution, FW[C] may make recommendations to either or all of the parties”.

[6] In order to make the requested recommendation, the parties were directed to file outlines of submissions, witness statements and any other evidence upon which they wished to rely (Directions).

[7] The Directions required any party who sought to be represented by a lawyer or paid agent at the Hearing to file written submissions to this effect, addressing the provisions of section 596(2) of the FW Act. On 4 July 2017, the AMWU sought permission for Mr Timothy Kucera of Turner Freeman Lawyers to appear on behalf of the AMWU at the hearing. On 5 July 2017, Premier Coal sought permission for Mr Paul McCrea of Engaging Management to appear on behalf of Premier Coal at the Hearing. As a matter of fairness between the parties and to enable the matter to be dealt with more efficiently, having regard to section 596(2) of the FW Act, both the AMWU and Premier Coal were granted leave to be represented at the hearing.

[8] The matter was listed for hearing on 24 August 2017 (Hearing).

[9] Mr John Kearney, Maintenance Electrician at Premier Coal, gave written and oral evidence on behalf of the AMWU. Mr Steve Reynolds, Human Resources Manager at Premier Coal from 2004 to 2014, gave written and oral evidence on behalf of Premier Coal.

[10] Final Closing Submissions were filed by the AMWU on 19 September 2017 and by Premier Coal on 3 October 2017.

Background

[11] Premier Coal employs around 70 maintenance employees under the terms of the Agreement to perform maintenance work at its Collie coal mining operations (Maintenance Employees). 1

[12] Clause 16 of the Agreement provides that, subject to a right for Premier Coal to introduce other rosters, the rosters to be worked by the Maintenance Employees working shift work are those set out in Schedule Two of the Agreement. 2

[13] Schedule Two of the Agreement contains three rosters which are relevant to the dispute: 3

a. A1 Roster – a seven-day 12 hour day/night continuous shift roster.
b. A2 Roster – a seven-day day shift only 12 hour continuous shift roster.
c. B2 Roster – Monday to Thursday/Tuesday to Friday 10.5 hour day shift only roster.

[14] Maintenance Employees receive a base salary and a roster allowance. The roster allowance reflects the relative hardship associated with each roster pattern, and whether the employee has elected to work public/mine holidays. Consequently, the smallest roster allowance is paid to Maintenance Employees working the B2 Roster, which is a day shift only roster with no work on weekends or public/mine holidays. The largest allowance is payable to Maintenance Employees working the A1 Roster, who have elected to work public/mine holidays. The roster allowance attached to each roster is as follows: 4

Roster A1 (continuous 7 day/night – 12 hour shift) – where an employee elects to take no public/mine holidays)	$35,178
Roster A1 (continuous 7 day night – 12 hour shift where an employee elects to take 5 public/mine holidays)	$30,766
Roster A2 (continuous 7 day only – 12 hour shift where an employee elects to take no public/mine holidays)	$27,113
Roster A2 (continuous 7 day only – 12 hour shift where an employee elects to take 5 public/mine holidays)	$24,134
Roster B2 (4 day to be worked Monday to Friday 10.5 hour shift)	$10,489

[15] Clause 16(e) of the Agreement provides for the creation of a maintenance breakdown crew drawn from the ranks of the Maintenance Employees (Maintenance Breakdown Crew). The Maintenance Breakdown Crew observes the A1 Roster (Breakdown Crew Roster). 5

[16] The dispute arose from a decision by Premier Coal to permanently transfer 27 Maintenance Employees from their current A1 Roster or A2 Roster to a B2 Roster and to cease rotating Maintenance Employees from the Breakdown Crew Roster to an A2 Roster (Dispute).

[17] Clause 16 of the Agreement provides that:

“a) Rosters

i. Employees will work rosters spanning a full calendar year except for Christmas Day, Good Friday and Anzac Day, unless otherwise provided.

ii. Rosters to be used are set out in Schedule 2 – Rosters.

iii. Premier Coal may introduce other rosters during the term of this Agreement, and will consult with those Employees (or their chosen representatives) that will be affected by the proposed changes. If the affected Employees (and their chosen representatives, if any) do not agree with the change, then the matter shall be resolved using clauses 13.c).i, ii and iii, of the Dispute Resolution Protocol in this Agreement.

b) Roster Changes

i. An Employee may be transferred from one roster to another by Premier Coal to suit operational requirements subject to the following:

A. no less than 48 hours' notice of a change in shift roster; and

B. a minimum 10 hour break shall apply between the commencement on the new roster and the end of work on the previous roster; and

C. if Premier Coal is unable to give the Employee at least 48 hours notice of a change in shift roster, the Employee shall be entitled to be paid an amount equivalent to one additional shift.

c) Maintenance of earnings

i. Subject to subclause 16.c).i.B, where at the request of Premier Coal an Employee is transferred from one roster to another:

A. there will be no loss of earnings for the period of the transfer up to a maximum of three months; and

B. following the three month period referred to in subclause 16.c).i.A, the roster allowance may reflect the roster being worked if the employee elects to continue in the role.

ii. Where an Employee is transferred from one shift to another to work in place of another Employee who is on leave, or asked to perform project work, the Employee will receive the higher roster payment for the time working that roster only and upon return to the normal roster will immediately revert to the preceding roster payment.

d) Maintenance Shift Swaps

Premier Coal may agree to allow a Maintenance Employee to swap shifts provided

that:

i. the shift swap will not have an adverse impact on the operation as determined by the Manager Operations (or the Maintenance Superintendent); and

ii. the Maintenance Employee gives Premier Coal not less than 24 hours' notice; and

iii. Premier Coal will only allow a Maintenance Employee to swap a weekend shift if it is swapped for another weekend shift, unless otherwise agreed with the Manager Operations (or the Maintenance Superintendent).

iv. Shift swaps can be accessed by union delegates to attend approved training.

e) Maintenance Breakdown Crew

i. Maintenance Employees will remain on the breakdown crew for a minimum period of four calendar months (16 weeks) before they are eligible to change their roster.

ii. For continuity in the breakdown crews, there shall be no more than one change of roster per classification in each crew during each four calendar month (16 weeks) period, provided that unforeseen circumstances may result in the number of roster changes set out in this subclause being varied on a case by case basis.

iii. For planned absences and where deemed necessary by Premier Coal, breakdown crew coverage will be provided from the maintenance day crews aligned with the breakdown crews on a rotational basis.

iv. Maintenance Employees who work on the breakdown crew may be required to report to the Production Supervisor at the commencement and finish of each shift.

v. Premier Coal may vary the number of Maintenance Employees on the breakdown crew according to operational requirements and in consultation with the Employees concerned and their chosen representative (if any).

vi. Subject to clause 15.f), up to 50% of the Breakdown Fitters will be required to commence up to 60 minutes prior to, or at the nominal start time (0700 or 1900).

…”

[18] In the week commencing 11 June 2016, Premier Coal advised the Maintenance Employees that, pursuant to clause 16(b)(i) of the Agreement, they would be required to transfer from their current A1 Roster or A2 Roster to the B2 Roster (Affected Employees). The Affected Employees commenced working on the B2 Roster in the week commencing 25 July 2016. 6

[19] In accordance with clause 16(c)(i)(A) of the Agreement, Premier Coal maintained the salary of the Affected Employees at the higher A1 Roster and A2 Roster rates until 8 November 2016.

[20] From 8 November 2016, three months and two weeks after the Affected Employees changed to the B2 Roster, Premier Coal reduced the roster allowances of the Affected Employees in accordance with clause 16(c)(i)(B) of the Agreement to reflect the lower roster allowance which applies to the B2 Roster. This resulted in a reduction in roster allowance of $20,277.00 (or $24,690.00 if the employee had chosen to work the public/mine holidays on their previous roster) for Affected Employees who transferred from the A1 roster to the B2 roster. It resulted in a reduction in roster allowance of $13,645.00 (or $16,625.00 if the employee had chosen to work the public/mine holidays on their previous roster) for Affected Employees who transferred from an A2 Roster to the B2 Roster. 7

[21] In or around August 2016, Premier Coal also decided to cease rotating Maintenance Employees from the Breakdown Crew Roster (i.e. the A1 Roster) to the A2 Roster. Up until that time, Maintenance Employees who primarily worked on the A1 Roster rotated with employees who primarily worked on the A2 Roster after a minimum period of four months. This was favoured by the Maintenance Employees as, by rotating onto the A2 Roster from time to time, they were relieved for a period from working night shift.

[22] The AMWU submits that the effect of clause 16(c) of the Agreement is that if a Maintenance Employee is transferred by Premier Coal pursuant to clause 16(b) of the Agreement from one roster to another (for example from an A1 Roster or an A2 Roster to a B2 Roster), the Maintenance Employee is only required to remain on the new roster after the expiration of three months if the employee elects to do so. The AMWU further submits that the effect of clause 16(e) of the Agreement is that, if a Maintenance Employee is transferred to the Breakdown Crew Roster, Premier Coal must return the Maintenance Employee to the A2 Roster if, after the expiration of four months (16 weeks), the Maintenance Employee requests Premier Coal to do so.

[23] Premier Coal submits that clause 16(c) of the Agreement imposes no legal obligation on Premier Coal, and creates no legal right for employees, for employees to be returned to their original roster at the expiration of the three month salary maintenance period. Similarly, Premier Coal submits that clause 16(e) of the Agreement imposes no legal obligation on Premier Coal, and creates no legal right for employees, for employees to be returned to their original roster at the expiration of the 16 week period on the Breakdown Crew Roster.

Consideration

[24] The principles regarding the construction of enterprise agreements were considered and summarised by the Full Bench of the FWC in Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd [2014] FWCFB 7447. These general principles have recently reviewed and revised by the Full Bench of the FWC in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Ltd[2017] FWCFB 3005 and I have applied them in this decision.

[25] The resolution of a dispute about the meaning of an enterprise agreement will turn on the language the parties have used to express their agreement, having regard to its context and purpose. In construing an enterprise agreement, it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity. While reference may be had to surrounding circumstances to determine if an ambiguity exists, no reference may be made to extrinsic evidence if the language of the agreement is not ambiguous. 8

[26] Premier Coal submits that, when regard is had to the surrounding circumstances, an ambiguity exists with respect to clause 16(c) of the Agreement. Premier Coal submits that the practical effect of the interpretation of clause 16(c) of the Agreement proposed by the AMWU is that Premier Coal will have to continually pay above the agreed remuneration for Roster A1. Premier Coal asserts that this will occur because they say employees will only elect to remain on the A1 Roster while salary maintenance is in effect, after which time they will need to be replaced with new employees also entitled to salary maintenance.

[27] Premier Coal asserts that an ambiguity arises because the additional costs and labour inflexibilities which they say are associated with this literal interpretation of clause 16(c) of the Agreement are contrary to the objects of the FW Act, which aim for collective bargaining to deliver improvements in productivity and flexibility. Premier Coal also submits that a literal interpretation is contrary to similar objects contained in clauses 4 and 7 of the Agreement. 9

[28] While the context of a disputed phrase may be gleaned from the legislative context in which an agreement is made and/or the text of the agreement as a whole, the task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. This is, in fact, conceded by Premier Coal in its Final Closing Submissions at [5] where it submits that the FWC “… is not empowered to determine what it thinks is fair and reasonable, or what it might do if it were running the mine …”.. 10

[29] In any event, the potential impacts on cost and flexibility envisioned by Premier Coal are not necessarily inevitable. Having had a period to adjust their spending patterns during the three months of salary maintenance, Affected Employees may find that the A2 Roster, of days only, better suits their personal circumstances than the A1 Roster, which requires them to work nights and days. In such cases, contrary to the predictions of Premier Coal, Affected Employees might not elect to return to their original roster and happily remain on the A2 Roster, notwithstanding they no longer receive salary maintenance.

[30] Premier Coal also submits that subclause 16(b) of the Agreement, when read in the context of clause 16 as a whole, provides an unfettered right for Premier Coal to transfer employees, provided the criteria enumerated at (A), (B) and (C) are satisfied. According to Premier Coal, subclause 16(c) cannot “… be read as including any restriction over and above those contained in 16(b)(i)(A), (B) and (C)”. Premier Coal say that, in these circumstances, the phrase “… where at the request of Premier Coal an Employee is transferred from one roster to another” in clause 16(c)(i) must mean that the salary maintenance entitlements contained in clause 16(c)(A) and (B) of the Agreement only apply when Premier Coal invites an employee to transfer from one roster to another. According to Premier Coal, no entitlement to salary maintenance arises if Premier Coal directs an employee to transfer rosters. 11

[31] This requires an extremely strained interpretation of the purpose of the clause (a not uncommon salary maintenance provision) in the context in which it appears. I am satisfied that the phrase “… where at the request of Premier Coal an Employee is transferred from one roster to another” is plainly intended to distinguish between circumstances in which an employee choses to change between rosters (perhaps for lifestyle reasons) to a situation where Premier Coal instructs or requests an employee to change rosters. Where an employee requests a change in roster to suit his or her personal circumstances, Premier Coal ought not be expected to bear any additional financial burden. However, where Premier Coal instructs or requests an employee to change rosters, and this will have a sudden large financial impact on the employee, Premier Coal might reasonably be expected to assist the employee adjust to the loss in income by maintaining the employees higher remuneration package for a finite period of three months. 12

[32] Premier Coal sought to rely on the witness evidence of Mr Reynolds that “… it was difficult to obtain volunteers…” to change roster to perform “special projects … if it meant employees would lose pay” in support of its argument that clause 16(c)(i) was intended to apply only to circumstances when Premier Coal requested an employee to change roster, and not when Premier Coal directed an employee to change roster. 13

[33] However, this evidence is inconsistent with Premier Coal’s submission that it has an unfettered right to transfer employees between rosters. It is instead consistent with the interpretation of the clause proposed by the AMWU that clause 16(c)(i) was intended to assist employees who suffered an income drop due to a change in roster at the request or direction of the Premier Coal. In any event, clause 16(c)(ii) of the Agreement specifically provides for the maintenance of salary in the event of employees being requested to perform project work.

[34] I am not satisfied that clause 16(c) is ambiguous. The words “… if the employee elects to continue in the role” must have some work to do and was added to the precursors of clause 16 in prior agreements for a purpose. 14 If the intention of the parties was that Maintenance Employees rotated by Premier Coal into a different roster (having been assisted to adjust to the loss in salary via three months’ salary maintenance) were not entitled to transfer back to their previous roster the words “… if the employee elects to continue in the role” would be unnecessary.

[35] The word ‘elect’ is defined in the Cambridge Dictionary as “to decide on or choose”. Clause 16(c) grants that choice or decision to the employee, not to Premier Coal. The choice of the term ‘elect’ can be contrasted with the language used in clause 16(e) in relation to the Breakdown Crew, and discussed below, which describes employees as being ‘eligible’ to change their roster.

[36] Contrary to the submissions of Premier Coal, the interpretation of the clause 16(c) of the Agreement proposed by the AMWU does not place Premier Coal “… in a labour allocation straight jacket…”. Premier Coal can request or direct employees to transfer between rosters. The interpretation proposed by the AWMU does not prevent Premier Coal allocating labour as it chooses. Admittedly, utilising this labour flexibility may result in a higher cost structure for Premier Coal, but this is as a result of the clear and unambiguous words Premier Coal agreed to include in the Agreement. It is not for the FWC to rewrite the Agreement to achieve an outcome which Premier Coal asserts is just and fair for it (and one which the AMWU asserts would not be just and fair for its members).

[37] Clause 16(e)(i) provides that “Maintenance Employees will remain on the breakdown crew for a minimum period of four calendar months (16 weeks) before they are eligible to change their roster”.

[38] The AMWU asserts that this clause entitles Maintenance Employees to rotate out of the Breakdown Crew after 16 weeks, regardless of Premier Coal’s operational requirements. Premier Coal dispute this.

[39] I am not satisfied that clause 16(e) is ambiguous and that is appropriate to refer to extrinsic evidence, such as evidence of how the rosters have been applied post agreement as suggested by the AMWU. Although I note that that evidence is consistent with the plain reading of clause 16(e) of the Agreement.

[40] If the intention of the parties was that Maintenance Employees rotated by Premier Coal onto the Breakdown Crew could insist on returning to their previous roster, the parties could have been expected to use the same language of ‘election’ as used in clause 16(c) of the Agreement.

[41] Instead the word ‘eligible’ in the context in which it is used clearly contemplates an entitlement for Maintenance Employees to be considered by Premier Coal for a transfer following the satisfaction of a prerequisite (i.e. the completion of 16 weeks), rather than an enforceable right to return contrary to Premier Coals operational requirements.

Recommendations

[42] Clause 16(c)(i)(B) of the Agreement requires Premier Coal to transfer Maintenance Employees who are transferred from an A1 Roster or A2 Roster to the B2 Roster back to their former A1 Roster or A2 Roster upon the completion of three months on the B2 Roster at the request of the Affected Employee.

[43] Clause 16(e) of the Agreement permits Maintenance Employees who are transferred from an A1 Roster or A2 Roster to the Maintenance Breakdown Crew Roster to request that they be transferred back to their former A1 Roster or A2 Roster upon the completion of 16 weeks on the Breakdown Crew Roster.

DEPUTY PRESIDENT

Appearances:

T Kucera of Turner Freeman Lawyers for the applicant.

P McCrea of Engaging Management for the respondent.

Hearing details:

2017.

Perth:

August 24.

Final written submissions:

Applicant, 19 September 2017.

Respondent, 3 October 2017.

 1 Exhibit A1 at [2].

 2 Ibid at [3].

 3 Ibid at [4].

 4 Premier Coal Closing Submissions at [11].

 5 Ibid at [17].

 6   Exhibit A1 at [5]-[6].

 7   Ibid at [7]-[9].

 8   Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd[2014] FWCFB 7447 at [41].

 9   Premier Coal Closing Submissions at [21]–[28] and [40].

 10 Ibid at [5].

 11   Ibid at [29] – [38].

 12   Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Ltd[2017] FWCFB 3005 at [114].

 13 Exhibit R2 at [15].

 14   AMWU Closing Submissions at [26]-[55].

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