"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Rheem Australia Pty Ltd
[2011] FWA 7602
•8 NOVEMBER 2011
[2011] FWA 7602 |
|
DECISION |
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
Rheem Australia Pty Ltd
(C2011/6009)
Manufacturing and associated industries | |
COMMISSIONER CARGILL | SYDNEY, 8 NOVEMBER 2011 |
Transfer of employees .
[1] This decision arises from an application pursuant to section 739 of the Fair Work Act 2009 (the Act) for Fair Work Australia (FWA) to deal with a dispute. The application is made by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU or the Union). The other party to the dispute is Rheem Australia Pty Ltd (Rheem or the company).
[2] The dispute concerns the proposed transfer of a number of production employees who presently work on afternoon shift to day shift in circumstances where these employees do not agree to the transfer. Each of the affected employees is a member of the AMWU.
[3] The employees, the company and the AMWU are parties to the Rheem Rydalmere Manufacturing Enterprise Agreement 2009 (the Agreement). There are two other union parties to the Agreement but neither is involved in this dispute.
[4] Clause 7 of the Agreement incorporates, subject to any inconsistency, all of the terms of the Metal, Engineering and Associated Industries Award 1998 (the Metals Award) or the appropriate successor modern award. It is agreed that the Manufacturing and Associated Industries and Occupations Award 2010 (the Manufacturing Award or the Award) is the appropriate successor award.
[5] The dispute was the subject of a conciliation conference on 4 October 2011 but did not resolve. The parties agreed that it should be dealt with by arbitration. That hearing took place on 19 October 2011. In both the conference and the hearing the AMWU was represented by Mr Walkaden. Rheem was represented by Ms Street from The Australian Industry Group.
[6] The parties have agreed upon the question which is to be determined by this arbitration. It is as follows:
“In the absence of agreement from the nine (9) affected employees does the Rheem Rydalmere Manufacturing Enterprise Agreement 2009 and/or the Manufacturing and Associated Industries and Occupations Award 2010 permit Rheem to transfer these employees from the afternoon shift to the day shift?”
[7] The parties have also prepared an agreed statement of facts, Exhibit AMWU 1. It should be noted that there is no real issue between the parties as to the facts in the matter. The dispute is about the interpretation of the relevant industrial instruments.
[8] I do not set out the agreed statement of facts in full, but have drawn upon it to provide a brief background and context to the dispute.
[9] The Rydalmere plant manufactures water heater units and parts. For at least the past 25 years the company has run the plant with two shifts: a day shift which operates from 7am to 3.30pm and an afternoon shift which operates from 3.30pm to midnight. At present 164 employees work the day shift and 107 work on the afternoon shift.
[10] There has been a steady and continuing decline in the demand for some of the units produced at Rydalmere. The afternoon shift in the Heater Assembly area is the most affected by this decline. In March 2011 the company informed employees and the AMWU that there were too many operators on this shift in that area. The Union disputed the company’s position but requested that the issue be postponed until the resolution of another matter. Rheem agreed.
[11] In September 2011 the parties agreed on a process to deal with the required transfer of employees from the afternoon to the day shift. The process included consideration of the family, financial and other circumstances of relevant employees as well as their length of service. An appeal process could be accessed by aggrieved employees. Rheem agreed that four weeks’ notice would be given prior to the transfer becoming effective.
[12] The AMWU and the employees made it clear to the company that, although they would cooperate with the process, if employees who were chosen to transfer did not agree, the matter would remain in dispute.
[13] On 12 September 2011 Rheem provided formal written notice to employees that 11 employees would be required to transfer shifts and notified them of the agreed process. Employees were also provided with a “hardship application form” if they wished to claim extenuating circumstances.
[14] Approximately 30 employees were identified as candidates for possible transfer and approximately 30 hardship applications were made. Further meetings were held between company and Union representatives. Two employees volunteered to transfer shifts which left nine employees still required.
[15] On 26 September 2011 Rheem completed the assessment of the hardship applications and advised the nine selected employees. Each of these employees accessed their right to appeal. Following those appeals and personal interviews some employees were removed from the selected list and were replaced with others. This was done on the basis of perceived degrees of hardship.
[16] The nine remaining employees were formally advised of their selection and the requirement to transfer shifts subject to the outcome of this matter.
[17] The company will continue to operate day and afternoon shifts with unchanged starting and finishing times. The only changes will be to the numbers and identities of the employees on each shift.
[18] Employees who transfer to the day shift will not be entitled to retain the 15% afternoon shift loading which they receive at present.
SUBMISSIONS OF THE AMWU
[19] A written outline of submissions was provided prior to the hearing. It was marked as Exhibit AMWU 2. Mr Walkaden also made oral submissions.
[20] The AMWU submits that, in the absence of agreement by the affected employees, the Agreement and the Manufacturing Award do not permit Rheem to transfer the employees from afternoon shift to day shift.
[21] The AMWU submits that the settled approach to interpreting an industrial instrument is to give the relevant words their plain and ordinary meaning but not adopt a pedantic or literal approach. Regard should be given to the instrument as a whole as well as the context and purpose of the clause in question. It is not necessary to find an ambiguity. The AMWU relies upon a number of decisions: Kucks v CSR Limited (1996) 66 IR 183 @ 184 (Kucks); The Australian Workers’ Union, Western Australian Branch v Co-Operative Bulk Handling Limited[2010] FWAFB 4801 @ paras 6-14 (Co-Operative Bulk Handling); Catholic Regional College Sydenham v Independent Education Union of Australia[2011] FWAFB 2784 @ paras 37-39; Shop, Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2010] FCAFC 67 @ paras 14-18 (SDA decision); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited [2010] FCA 591 @ para 39; Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; and, The Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208 @ 212.
[22] The Union submits that the decision of City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 is instructive in understanding what is meant by context.
[23] The AMWU notes that the Agreement does not deal with hours of work in any detail and submits that it clearly does not provide Rheem with the power to direct employees to transfer from afternoon to day shift. It also submits that the Manufacturing Award does not expressly give the company any such power either. The AMWU submits that, on the contrary, the Manufacturing Award does not permit such transfers without agreement. This contention is supported by provisions of the Agreement which provide context. The Union concedes that the Award would allow an employer to transfer an afternoon shift worker to night shift or vice versa but submits that transfers between day work and shift work are not permitted without agreement.
[24] Clause 36.2 of the Manufacturing Award creates the concept of a day worker. Clauses 36.3 and 36.4 create the concept of a shift worker. The clauses set up a distinction between these two concepts particularly by way of defining the hours of work and when overtime is payable. The Union provides practical examples of this distinction which go to the ability of an employer to roster shift workers to work ordinary hours without the restrictions which the Manufacturing Award imposes upon the rostering of day workers. The Union refers to a recent decision which comments upon the distinction, albeit in the context of a different instrument: Australian Municipal, Administrative, Clerical and Services Union v Ergon Energy Corporation Limited [2011] FWA 1956 @ paras 49-54 (Ergon).
[25] The Union submits that the notion of “ordinary hours” in the Manufacturing Award only relates to the question of whether work should be paid at ordinary time rates or overtime rates. The entitlement depends upon whether the employee is a day or shift worker.
[26] The AMWU submits that there would be no point in this distinction between day workers and shift workers in the Manufacturing Award if an employer could unilaterally transfer an employee from one category to the other. Neither would there be any point in creating a spread of hours provision.
[27] The Union submits that the plain and ordinary meaning of clause 36.5(a) of the Manufacturing Award places clear limits on an employer’s power to unilaterally fix the start and finish times of an employee’s ordinary hours. This reinforces the distinction between day and shift workers. The Union submits that, again, there would be no need for the distinction if an employer had an unfettered right to move an employee from being a day worker to a shift worker or vice versa.
[28] Clause 36.5(a) permits an employer to change the ordinary hours of work of a day worker provided they are within the spread of hours. The Union submits that the Award does not permit further unilateral change to such hours. The effect of this is to prevent a day worker becoming a shift worker, or vice versa, without their agreement.
[29] Clause 36.5(a) is a replication of clause 6.1.4(a) of the Metals Award. The AMWU submits that the purpose of clause 6.1.4(a) was as outlined by Senior Deputy President Marsh in the decision which led to the making of the Metals Award during the “award simplification” proceedings, which was as follows:
“The MTFU’s proposed clause contains too much detail and may be overly restrictive in a practical sense. While MITA’s proposed clause contains aspects which are flexible in their scope the preamble to the clause makes clear the intention that it “limits the discretion to variations within a prescribed spread of hours with the flexibility to vary that spread of hours by agreement within a clearly defined range”...
I agree that the clause to apply across the metal industry should provide for majority agreement. In addition there are clear instances where greater flexibility for both the employer and individual employee may accrue from an individual reaching agreement with his/her employer over the arrangement of ordinary hours. The MITA’s proposed clause 6.1.4(a) will be adopted” 1
[30] The AMWU submits that its interpretation of clause 36.5(a) is consistent with Her Honour’s comments as to the purpose of the clause which Mr Walkaden described as being “crystal clear”. Mr Walkaden submitted that Rheem’s interpretation of the clause is pedantic and unworkable and is inconsistent with the purpose of the clause. The Union rejects the contention that the clause relates only to arranging the ordinary hours worked at the enterprise rather than to an individual employee’s hours.
[31] The Union submits that clause 37 of the Manufacturing Award deals solely with payments for shift workers. References within the clause to rostered shifts do not apply to day workers. The Union rejects the suggestion that clause 37.1 defines the span of hours for a shift worker. It relies upon the analysis in Ergon that the concept of a span of hours is only relevant with respect to day workers and not shift workers.
[32] Mr Walkaden submitted that clause 37 is clearly dealing with shift workers. He referred to and relied upon the decision in Tenix Defence Systems Pty Limited [PR917548] especially paragraphs 68 and 69 which dealt with the question of the use that may be made of headings. Mr Walkaden submitted that, if there was any uncertainty about the issue, the heading to clause 37 “Special provisions for shift workers”, put the matter beyond doubt.
[33] The AMWU submits that it is important to consider the context of the hours of work provisions which, again, derive directly from those inserted into the Metals Award during the award simplification proceedings. Reference is made to the following comments by Senior Deputy President Marsh:
“The parties disagree on the terms of the proposed clause in respect of a number of key aspects necessitating a review of each subclause. The essence of the differences between the parties is how the appropriate balance should be struck between effecting greater flexibility in the operation of hours of work at the enterprise ensuring no unfairness to employees” 2
[34] The Union submits that its interpretation strikes the balance referred by Her Honour. It submits that Rheem’s position would give an employer unchecked flexibility. The Union relies upon a decision of the Industrial Relations Commission of New South Wales in Reckitt Benckiser (Household) Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch & Others [2006] NSW IRComm 41 @ para 71 (Reckitt Benckiser) as authority for its preferred interpretation. Although it was decided under a different industrial instrument, the relevant clauses under consideration there are identical to those presently in question.
[35] The AMWU submits that the facilitative provisions in the Manufacturing Award, which can be accessed by either majority or individual agreement, further balance flexibility with fairness.
[36] Although the Agreement does not directly deal with the issue in dispute the Union submits that clauses 11 and 18 of the Agreement provide context and support for its contentions.
[37] Clause 11 of the Agreement permits the making of an individual flexibility agreement which deals with start and finish times. It is submitted this cannot relate to matters which are dealt with in clause 36.5(a) of the Manufacturing Award which gives the employer the unilateral right to vary start and finish times of day workers, within the spread of hours, and of shift workers, outside the spread of hours.
[38] The Union submits that clause 11 can only be read as providing for the variation of the start and finish times of day workers outside the spread of hours and those of shift workers within the spread of hours. It is submitted that it is only in this way that a day worker could become a shift worker and vice versa. Such a variation depends upon mutual agreement.
[39] The AMWU submits that, if Rheem’s contentions are accepted, clause 11 would have no work to do. This could not have been the mutual intention of the parties in making the Agreement. In this regard Mr Walkaden drew particular attention to the Full Bench Co-Operative Bulk Handling decision and other decisions referred to therein which are endorsed by the Full Bench.
[40] Clause 18 of the Agreement relates to employee initiated shift rotations. It is submitted that the clause does not provide the company with the right to forcibly transfer employees between shifts and reinforces the Union’s contentions.
[41] The AMWU submits that the question set out in paragraph 6 above should be answered in the negative.
SUBMISSIONS ON BEHALF OF RHEEM
[42] A written outline of submissions was provided prior to the hearing. It was marked as Exhibit Rheem 1. Ms Street also made oral submissions.
[43] Rheem does not contest the jurisdiction of FWA to arbitrate the dispute in accordance with the dispute settling procedure set out in the Agreement. It notes that the matter in dispute is agreed between the parties and the question to be determined is as set out at paragraph 6 above.
[44] The company submits that, in addressing the question to be determined, the established approach for interpreting industrial instruments should be followed. Reference is made to the decision in Kucks referred to earlier in the AMWU submissions.
[45] Rheem contends that it is permitted to direct employees who are presently working on the afternoon shift to commence day work. The company bases its contentions upon its managerial prerogative, to the extent limited by the terms of the Agreement and the Manufacturing Award, and the ordinary and industrial meaning of those instruments.
[46] The company submits that an employer exercising managerial prerogative may alter both the pattern and structure of shifts and the particular shift worked by an employee. It may also introduce a new shift or a rotating shift roster. The company refers to a number of decisions as being relevant: “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Silcar[2011] FWAFB 2555 @ paragraph 13 (Silcar); Australian Nursing Federation v Freemantle Psychiatric Hospital [Print M7311]; and Textile, Clothing and Footwear Union of Australia v Huyck Australia Pty Ltd [PR906779].
[47] Rheem submits that previous decisions concerning the question of shift transfers have assumed an employer’s right to direct an employee to change shifts, subject to relevant award restrictions. These decisions include: Australian Transport Officers Federation v Qantas Airways Ltd & Another (C21880 of 1990 30/9/92); Construction, Forestry, Mining and Energy Union v Pacific Coal Pty Ltd [Print P9924]; BP Oil Kwinana Refinery Engineering and Maintenance Employees Award 1999 [PR912414]; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Tristar Steering and Suspension[2007] AIRC 23; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) v Alcoa of Australia Ltd [PR974313]; and, Silcar.
[48] Rheem submits that neither the Agreement nor the Manufacturing Award contain any provisions which preclude or limit the company’s prerogative to alter the structure of shift patterns and rosters and, indeed, the Award permits it.
[49] The company submits that the Agreement is limited in its terms regulating hours of work. Clause 17 provides for rostered days off and clause 18 provides for shift rotations where employees request a variation for personal reasons. Rheem submits that neither clause has any application or relevance to this matter. It is noted that clause 18 requires management approval and Consultative Committee discussion when more than a temporary change to shift hours is sought. The clause does not regulate a management initiated change to shift hours such as that proposed by the company in the present circumstances.
[50] Rheem submits that, because the Agreement is silent on the issue, regard must be had to the provisions of the Manufacturing Award. The company agrees with the AMWU that, in considering the relevant provisions, it is necessary to view Part 5 of the Award as a whole.
[51] The company submits that there is nothing in Part 5, or anywhere else in the Manufacturing Award, which prevents an employer from directing an employee to transfer shifts. Indeed, the employer’s right to direct such a transfer is an entitlement which is fundamental to the Award. This contention is based on the provisions of clause 37.1 which defines a “rostered shift” as “any shift of which the employee concerned has had at least 48 hours notice”. Rheem submits that the existence of this provision contemplates the employer’s right to transfer between shifts and from day to shift work.
[52] This contention is further supported by the terms of clause 37.3 which set out relevant shift loadings. It is submitted that it is inherent in these provisions that employees may work on different shifts as required. Rheem submits that clause 37.3(b) is ordinarily described as the “temporary shift” provision in the Award and argues that, because the shift referred to is temporary in nature, it cannot be an employee’s normal shift. Consequently, the Award allows an employee to move from their normal shift to a different shift without requiring agreement or attracting the redundancy provisions in the Award.
[53] Rheem submits that the 48 hour notice period referred to in clause 37.1 does not apply when directing afternoon or night shift employees to work day work. This is because day work is not a rostered shift but is regulated separately by clause 36. Reference is made to the Industrial Information Digest of 1966 and a number of examples of “change of shift” set out therein, specifically a 1943 Board of Reference decision which permitted transfer from shift work to day work without notice.
[54] Rheem rejects the AMWU assertion that clause 36.5 prevents a unilateral transfer of employees. The company submits that the clause deals with the arrangement of ordinary hours at the enterprise or part thereof. The clause has no application to the transfer of individual employees where the ordinary hours have already been arranged.
[55] It is noted that the present arrangement of ordinary hours at the site has been in place for very many years and, further, that the company will continue to operate the existing shifts following the proposed transfers. Consequently, Rheem is not seeking to change the arrangement of ordinary hours either at the enterprise or, more specifically, in the Heater Assembly area. The present arrangement will remain unchanged.
[56] Ms Street submitted that the company’s interpretation of clause 36.5 is supported by its terms. The phrase “majority of employees in the enterprise or part of the enterprise concerned” in clause 36.5(a) indicates that it does not relate to individual rosters. The final sentence of clause 36.5(a) which relates to individual agreement, concerns the situation where deviation from the established arrangements can be dealt with to meet individual needs.
[57] It is submitted that the company’s interpretation is further supported by the list of matters set out in clause 36.5(b) which reflect a system of working hours at the enterprise level, not an individual employee’s roster. Ms Street noted that the list does not include transfer from afternoon shift to day work.
[58] In addition, the company relies upon the historical background to the clause in issue. The present facilitative provisions are in clause 8.3 of the Manufacturing Award. The definition of a facilitative provision was identified in the Award Simplification decision, (1997) 43 AILR 3-683 as follows:
“... that part of an award clause which enables agreement at enterprise level to determine the manner in which that clause is applied at the enterprise. A facilitative provision normally provides that the standard approach in the award provision may be departed from by agreement between an individual employer and an employee or the majority of employees in an enterprise or part of an enterprise concerned. Where an award contains a facilitative provision it establishes both the standard award condition and the framework within which agreement can be reached as to how the particular clause should be applied in practice.”
[59] Rheem submits that the present facilitative provisions derived from provisions introduced into the Metal Industry Award 1981 [Print E9186] to deal with the implementation of the move from a 40 hour to a 38 hour week. Clause 18A of that award provided a consultative process for this purpose. The company submits that the clause did not seek to impose restrictions upon an employer transferring employees to different shifts.
[60] Rheem submits that a transfer of employees from afternoon shift to day shift does not require any facilitative agreement as it does not involve a departure from award provisions. Indeed such a transfer is permitted by the Award.
[61] Rheem made a number of submissions in response to the Union’s oral submissions. Rheem acknowledges that the Manufacturing Award labels employees as shift workers or day workers. The company rejects the AMWU contention that an employee can only ever be one or the other. It submits that the entitlements which accrue to the different categories of employee come from the work that they do and the hours that they work not what they are called. This view is supported by a decision concerning the Harris-Daishowa (Australia) Agreement 1998 (Print S1369) @ paragraph 23 (Harris-Daishowa).
[62] The company rejects the Union submission that its interpretation of clause 36.5 of the Manufacturing Award is pedantic or overly technical. Rheem reiterates its position that the clause only regulates hours of work at the enterprise level and not on an individual basis unless that departs from the established hours at that enterprise. The company also submits that the clause would permit an employer to cancel a shift, or theoretically, transfer all but one employee from the afternoon shift to day work.
[63] Rheem accepts that clause 37 of the Manufacturing Award deals with shiftwork. Nevertheless some of its features clearly indicate that an employer can transfer employees between shiftwork and day work as well as across shifts. An example is the temporary shift provisions in clause 37.3(b). A further instance is the express reference to day work in clause 37.3(c)(iii).
[64] The company submits that the Reckitt Benckiser decision is distinguishable. It is a decision of a different tribunal, where there is more recent Full Bench authority in Silcar. The Reckitt Benckiser matter alsoinvolved an application to make an award.
[65] Rheem notes that clause 11 of the Agreement is the mandatory flexibility term and submits that it should be viewed in that context. It is a mechanism by which the company and an employee can agree to deviate from the Agreement and does not interfere with the company’s right to transfer employees.
[66] The company acknowledges that the decision to transfer employees is not a popular one. It accepts that there will be a loss of the afternoon shift loading for affected employees. The company submits that the question of fairness has been dealt with by the consultation process and is in any event not relevant to the question of interpreting the Agreement and the Award. Rheem submits that under those instruments it is permitted to transfer the nine employees from afternoon shift to day work without their agreement.
AMWU SUBMISSIONS IN REPLY
[67] Mr Walkaden made the following points in reply:
● Although the fairness of the proposed transfer with respect to individual employees is not relevant to the question to be determined, fairness is an important issue which goes to the purpose of the relevant provisions;
● Managerial prerogative is not relevant to the determination of the question. Managerial prerogative is clearly limited by the terms of an industrial instrument. The Union accepts that, if its interpretation of the Award provisions are rejected, the company can transfer the employees without their agreement;
● The authorities referred to by Rheem on the question of managerial prerogative and the Harris-Daishowa decision were based on other industrial instruments and are not relevant;
● The level of industrial acceptance of shiftwork varies from place to place and employee to employee. In the present case there is no broad level of acceptance of the requirement to move from shiftwork to day work;
● Rheem’s interpretation of clause 36.5(a) is rejected as it could result in absurd outcomes such as preventing the company from closing an entire shift. The reference to arrangement of ordinary hours should be read as including the ordinary hours worked by an individual;
● Clause 37.3(b) cannot be read as providing an employer with the right to force day workers to work a particular shift. Clause 37.3(c) concerns the working of a rotating roster and cannot apply to a day worker. The clause merely deals with payment for an employee who would clearly be a shift worker;
● The Reckitt Benckiser decision concerned almost identical facts and an industrial instrument in relevantly identical terms. It should be followed;
● It is irrelevant to consider how clause 11 came to be in the Agreement. It permits a deviation from the terms of the Agreement or the Award by mutual agreement;
● The company’s position provides no balance between flexibility and fairness. It provides maximum flexibility for the employer and no safeguards for the employees concerning their personal and family commitments.
CONCLUSIONS
[68] There is no issue that FWA has jurisdiction over the present dispute. As indicated earlier in this decision, the application to deal with the dispute was made pursuant to section 739 of the Act. That section provides that it applies if a term referred to in section 738, being a term which provides for a procedure for dealing with disputes, requires or allows FWA to deal with the dispute.
[69] Clause 22 of the Agreement is headed “Avoidance of Industrial Disputes”. The clause sets out a staged process to deal with disputes. Sub clause v. provides that unresolved disputes shall be referred to FWA for assistance through conciliation and arbitration. It specifically states that, if conciliation fails, “FWA is empowered to arbitrate on the matter provided that the arbitration is limited to the interpretation, application or process of implementation of a term or terms of this Agreement”.
[70] As noted in paragraph 4 above, the terms of the Manufacturing Award are incorporated into the Agreement by way of clause 7. So, to the extent that it is the interpretation of the terms of the Award that is in question, they are the terms of the Agreement and consequently covered by clause 22. In addition, clause 10 of the Manufacturing Award provides for consent arbitration by FWA where there is an unresolved dispute in relation to a matter arising under the Award.
[71] The principles which govern the interpretation of industrial instruments are reasonably well settled and are reflected in the decisions referred to in the submissions of the parties in this matter. The task begins with a consideration of the nature and ordinary meaning of the words used, read in the context of the instrument as a whole and the part in which they are contained. The words should not be interpreted in a strict, technical, narrow or pedantic fashion because the authors of the document are often non-lawyers who are drafting words in the context of custom and practice in a particular industry or enterprise. The court or tribunal should endeavour to give effect to the intention of the award maker or parties to the agreement, provided that the words in the instrument can reasonably be so interpreted. Recourse to extrinsic material is not dependent upon a finding that the relevant words are ambiguous.
[72] As will have been apparent from the submissions, the Agreement does not deal directly with the issue of whether or not Rheem can transfer the employees from afternoon shift to day work without their agreement. At first glance clause 18 might appear to be relevant as it is headed “Shift Rotations”. However, the terms clearly deal with the situation of employee requests to work different hours or shifts, either on a temporary or more permanent basis, rather than company initiated change.
[73] Clause 11 of the Agreement is the mandatory flexibility term which is required by section 202 of the Act. The clause restricts the matters which may be dealt with by way of an individual flexibility agreement to “start and finish times” and “carer’s responsibilities”. It should be noted that there is no evidence before me to suggest what might have been the intentions of the parties to the Agreement in adopting these particular matters to be the subject of flexibility arrangements. It should also be noted that two parties to the Agreement were not involved in this dispute.
[74] Clause 12 of the Agreement is headed “Employment Arrangements” and provides that the plant “needs to have the capacity to flexibly resource (up and down) for variable product volume and mix ...”. There were no submissions about the meaning or effect of this provision, however, it would appear to relate to overall numbers of employees rather than the question of the company’s ability to transfer employees.
[75] In the absence of directly relevant provisions in the Agreement it is necessary to have regard to relevant terms of the Manufacturing Award. Part 5 of the Award is headed “Hours of Work and Related Matters”.
[76] There is no doubt that there is a distinction drawn between day workers and shift workers in respect of various conditions including ordinary hours of work and the payment of overtime. However, it should be noted that the Award also differentiates between continuous and non-continuous shiftworkers in respect of those issues.
[77] I do not accept that the Award should be interpreted as immutably labelling an employee as a day worker or a shift worker. I agree with the company’s submissions that, whether an employee fits into one or the other category, depends on their work arrangements rather than what they might be called. Of course there may be situations where an employee’s contract of employment provides that they are engaged only as a day worker or only as a shift worker. However that issue is not relevant to the question before me which concerns the interpretation of the Agreement and the Award and not contractual rights or obligations.
[78] Clause 36.5(a) of the Award is of particular relevance to the question to be determined and was the focus of much of the submissions. It is set out in full:
“(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 36.2(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 must be by agreement between the employer and the majority of employees in the enterprise or part of the enterprise concerned. This does not preclude the employer reaching agreement with individual employees about how their working hours are to be arranged.”
[79] Paragraph (b) then sets out the matters on which such agreement may be reached. They include: the way in which hours are to be arranged in a work cycle; the duration of the work cycle; rosters; periods of notice, substitution, accumulation and flexibility of rostered days off; and the arrangement of ordinary hours which exceed eight in any day. Paragraph (c) permits majority agreement for the introduction of 12 hour days or shifts.
[80] In my view the words “the arrangement of ordinary working hours” in clause 36.5(a) relate to how various shifts are arranged and worked, not to the question of who is allocated to each one. If the phrase was intended to apply to the rosters of individual employees it would not be sensible to subject such a matter to majority agreement.
[81] Rheem is not seeking to change its shift arrangement and, consequently, the facilitative provisions in the clause are not required.
[82] The balance between flexibility for employers and fairness to employees referred to by Her Honour Senior Deputy President Marsh is not undermined by the interpretation I have outlined. The provisions of clause 36.5 reflect such a balance which is presumably why they were adopted by Her Honour.
[83] Clause 37 is headed “Special provisions for shiftworkers”. It sets out various definitions and sets allowances for the working of particular shift arrangements. There is a reference to day work in clause 37.3(c)(iii), however, it is in relation to the working of a non-rotating night shift and so does not shed any light on the issue of transferring employees from the afternoon shift to day work.
[84] As can be seen from the submissions and the various provisions set out and/or referred to above, neither the Agreement nor the Manufacturing Award expressly provide for the company to be able to transfer employees from afternoon shift to day work. However, that is not the end of the matter.
[85] The Full Bench in Silcar held:
“... in the absence of any term of a binding industrial instrument that prevents an employer from making changes to shift arrangements, an employer has a managerial prerogative to alter both the pattern and structure of shifts and the particular shift worked by an employee ...” 3
[86] In my view there is nothing in either the Agreement or the Manufacturing Award which precludes Rheem from transferring its employees from afternoon shift to day work. The answer to the question before me is “yes”.
[87] Although not relevant to the question or my determination, I consider that Rheem has followed a fair and reasonable process in deciding which employees should be transferred. I note that relevant employees were provided with four weeks’ notice of transfer subject to the outcome of these proceedings. Nevertheless, those employees will need to make adjustments to their personal lives. In the circumstances, I recommend that the company give consideration to providing a period of at least two weeks before the change is implemented.
COMMISSIONER
Appearances:
A. Walkaden, on behalf of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).
N. Street, from The Australian Industry Group on behalf of Rheem Australia Pty Ltd
Conferences:
2011.
Sydney
October 4.
Hearing details:
2011.
Sydney
October 19
1 Print P9311, page 21.
2 Print P9311, page 19.
3 [2011]FWAFB 2555 @ paragraph 13
Printed by authority of the Commonwealth Government Printer
<Price code C, AE873577 PR516403>
3
7
0