"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Rheem Australia Pty Ltd
[2015] FWC 4408
•13 JULY 2015
| [2015] FWC 4408 |
| FAIR WORK COMMISSION |
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
(C2015/734)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 13 JULY 2015 |
Application to deal with a dispute.
[1] This decision arises from a dispute notification pursuant to clause 22 of the Rheem Rydalmere Manufacturing Enterprise Agreement 2013 (the Agreement) lodged by the Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union (AMWU) against Rheem Australia Pty Ltd (Rheem) concerning the application of Clause 12 of the Agreement.
[2] This dispute was listed for arbitration before me on 8 May 2015. Ms Lucy Saunders appeared for the AMWU. Mr Mead of the Ai Group (AiG) with the assistance of Ms van Bronswijk, appeared for Rheem. Final submissions were received on 26 May 2015.
[3] The AMWU’s member, Mr Shane O'Neill, provided a statement 1and gave oral evidence. The Production Manager-Heater Assembly from Rheem at Rydalmere, Mr Roy Reardan, provided a statement2 and gave oral evidence.
[4] Sub clauses 22(v) and 22(vi) of the Agreement are set out below.
“v. Emphasis shall be placed on a negotiated settlement. However, if the negotiation process is exhausted without the dispute being resolved, the parties shall jointly or individually refer the matter to FWA for assistance in resolving the dispute through conciliation and arbitration.
Up to fourteen (14) days shall be allowed for all stages up to and including StaGe (iv)(v) to be finalised.
If conciliation fails to resolve the dispute, 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, and the NES.
vi. In order to allow for the peaceful resolution of grievances during the operation of this procedure, work will proceed in accordance with safe working practices, this EBA and the contract of employment and the pre-dispute situation.”
[5] Clause 12 of the Agreement is set out below:
“12. Flexibility Term
12.1 An employer and employee covered by this enterprise agreement may agree to make an individual flexibility arrangement to vary the effect of terms of the agreement if:
a. The agreement deals with 1 or more of the following matters:
i. Start and finish times
ii. Carer’s responsibilities, and
b. The arrangement meets the genuine needs of the employer and employee in relation to 1 or more of the matters mentioned in paragraph (a); and
c. The arrangement is genuinely agreed to by the employer and the employee
12.2 The employer must ensure that the terms of the individual flexibility arrangement:
a. Are about permitted matters under section 172 of the Fair Work Act 2009; and
b. Are not unlawful terms under section 194 of the Fair Work Act 2009;
c. Result in the employee being better off overall than the employee would be if no arrangement was made.
12.3 The employer must ensure that the individual flexibility arrangement:
a. Is in writing; and
b. Includes the name of the employer and employee; and
c. Is signed by the employer and employee and if the employee is under 18 years of age, signed by a parent or guardian of the employee; and
d. Includes details of:
i the terms of the enterprise agreement that will be varied by the arrangement; and
ii how the arrangement will vary the effect of the terms; and
iii how the employee will be better off overall in relation to the terms and conditions of his or her employment as a result of the arrangement; and
e. States the day on which the arrangement commences.
12.4 The employer must give the employee a copy of the individual flexibility arrangement within 14 days after it is agreed to.
12.5 The employer or employee may terminate the individual flexibility arrangement:
a. If the employer and employee agree in writing – at any time.”
[6] To resolve this dispute it is necessary to review the interactions of Rheem, the AMWU, and its member Mr O'Neill. The most convenient method of doing that is to examine the Agreed Statement of Facts and its annexures which are set out below:
“AGREED STATEMENT OF FACTS
1. Rheem Australia Pty Ltd (Rheem) manufactures water heater units and components at its Rydalmere site.
2. Rheem operates two shifts at its Rydalmere site:
a. Day shift: 7.00am – 3.30pm; and
b. Afternoon shift: 3.30pm – 12.00am.
3. Currently 182 production operators work on day shift, and 55 production operators work on afternoon shift.
4. The majority of production operators, work in groups to either hand build water heater units or to assemble components which are incorporated into the water heater units.
5. The Rydalmere water heater plant operates two areas of production: a Heater Assembly Line and a Cylinder Assembly Line.
6. Approximately 135 production operators work the Heater Assembly, and 102 production operators work the Cylinder Assembly.
7. Mr O’Neill commenced employment at Rheem in 2001 as a full-time process worker at the Rydalmere site. He indirectly reports to Roy Reardon, Production Manager Heater Assembly.
8. Mr O’Neill lives in Oakhurst. He has a 16-year old son, who is in year 11 at Mamre Anglican School in Kemps Creek.
9. From 2001 to 2010, Mr O’Neill worked on afternoon shift, aside from a temporary period on night shift from 13 July 2009 to 3 May 2010.
10. On 29 June 2010, Mr O’Neill moved from afternoon shift to day shift. His hours of work were, and remain, 6.00am – 2.30pm.
11. The variation to Mr O’Neill’s hours of work was not recorded in writing.
12. In 2010 the Rheem Rydalmere Manufacturing Enterprise Agreement 2009 [AE873577] (the old Agreement) applied. The old Agreement incorporated the Manufacturing and Associated Industries and Occupations Award 2010 (Award).
13. Currently, from 6.00am to 7.00am, Mr O’Neill works in the terminal box area, hand-assembling terminal boxes from pre-made components.
14. From 7.00am to 2.30pm, Mr O’Neill works in the Handmade Jacket Team, which manufactures the ‘Jacket’ component; the outer skin of the water heater. From time to time, Mr O’Neill also works on the main assembly line in the manufacture of Stella gas water heater units.
15. On 19 March 2012, Mr Reardon wrote to Mr O’Neill. A copy of this correspondence is annexed hereto and marked ‘A’.
‘Shane O’Neill
Variations to Hours of work.
6.00 to 2.30pm
This extension to the previous variation to the hours of work has been granted after reviewing the request from Shane and the ability for the business to support the request.
This extension is based on the conditions that Shane has presented.
His son is 13 years old.
That the school his son attends Mamre Anglican, located at Kemp’s Creek.
That it is an approx. 30 minute drive from his place of residence.
That Shane’s residence is at Oakhurst.
This extension will be reviewed in January 2013. Should the conditions of this variation change during this period either party may request a review.’
16. At some time in 2013, Mr O’Neill provided a document to Rheem at Rheem’s request. A copy of this document is annexed hereto and marked ‘B’.
‘Still need early start: Pick up son from out of zone school @3.00 to 3.15pm depending on traffic.
Mamre Anglican School
Kemps Creek
Currently in Year 9 (Jan 2013 to December 2013)’
17. On 9 October 2013, the Rheem Rydalmere Manufacturing Enterprise Agreement 2013 [AE404477] (the current Agreement) came into operation. The current agreement incorporates the Award.
18. On 18 December 2014, Mr Reardon wrote to Mr O’Neill. A copy of this correspondence is annexed hereto and marked ‘C’.
‘Flexible hours – 6 am Start 2.30pm Finish
Shane O’Neill
18th of December 2014
Dear Shane
Our agreement under the flexible terms of the EBA has expired and will need to be reviewed in January 2015.
Your last review and agreement was dated 2012 and was due for review last year, unfortunately I missed the review in my calendar.
Your claim for starting early was based on the need to pick your son up from an out of zone school and due to his age you were reluctant for him to travel on public transport, at the time you stated he was 12 years old.
That the school was in Kemps Creek (Mamre Anglican School) and you live in Oakhurst approx.27 kilometres travel.
I accepted your requested (sic) based on the age of your son at the time and the fact that I had a production supervisor and sufficient work available to support your request.
Two years on your son would be close to 15 years old and in year 11 this year.
Please advise whether you which (sic) me to reconsider your original request and if so on what grounds.
Please advise be (sic) the 16th of January 2015.”
19. On 19 December 2014, Mr O’Neill responded to Mr Reardon. A copy of this response is annexed hereto and marked ‘D’.
‘Shane O’Neill
Bundy (122)
Heater Day Shift
Request for continuation of early start for 2015 to extend for another year.
S O’Neill
19.12.2014
16 years of age
Year 11’
20. On 12 January 2015, Mr Reardon wrote to Mr O’Neill. A copy of this correspondence is annexed hereto and marked ‘E’.
‘Flexible hours – 6am Start 2.30pm Finish
Shane O’Neill
12th January 2015
Dear Shane
With regards (sic) my letter 18th of December 2014 and response dated 19th December 2014.
Your response is a little short on details I asked that you confirm that your son is still attending Mamre Anglican School and the age of your son.
Please confirmation (sic) that your son still attends Mamre Anglican School.
You have confirmed that your son is now 16 years of age.
Prior arrangements were agreed based on these two conductions (sic) and there was suitable work available for you and supervision was available.
The working conditions and supervision have changed and it is unlikely that alternative hours of work are available unless you can satisfy me of the need to extend our arrangement.
Please advise be (sic) the 16th of January 2015.’
21. On 20 January 2015, Mr Reardon wrote to Mr O’Neill. A copy of this correspondence is annexed hereto and marked ‘F’.
‘3 – Flexible hours – 6am start 2.30pm finish
Shane O’Neill
20th January 2015
Dear Shane
With regards (sic) the previous agreement to allow you to commence work at 6.00am and finish at 2.30pm under the Flexibility Term of the Rheem EBA.
Shane I have considered the two elements that made up the original request, your personal situation and the requirement to support additional production.
The volumes have dropped significantly since the original agreement, the additional hour is no longer required or is there any other alternative meaningful work I can offer you.
I have also consider (sic) your grounds for the original request four years ago, at that stage your son was 11 years old and we agreed with you that he was quite young to be catching public transport to an out of zone school, as your son is 16 years of age and in 11 year it is not unreasonable for him to either catch public transport or wait for you to pick him up after school.
Therefore I will not be able to extend our agreement beyond the end of January 2015, you will be required to resume normal day shift hours of 7.00am to 3.20pm, Monday the 2nd of February 2015.’
22. In February 2015, Mr O’Neill put the matter into dispute in accordance with the disputes settlement procedure contained in clause 22 of the current Agreement.
23. On 15 February 2015, Rheem General Manager – Human Resources Peter Ross wrote to Mr O’Neill. A copy of this correspondence is annexed hereto and marked ‘G’.
‘18th February 2015
Dear Shane,
Re: Request for early start & finish times
Following our discussions on Friday, 12th February 2015, I confirm the Company’s position.
In 2010, when we reduced the size of the afternoon shift, it was agreed between you and Roy Reardon that you would start and finish day shift 1 hour earlier. The primary purpose of this arrangement was so that you could pick up your son from school as he attended school outside “the zone”. At the time, your son was 13 years of age.
As discussed with you and as communicated in writing on 19 March 2012, this arrangement would be reviewed annually according to the production requirements and your individual needs. Roy conducted a review of the viability of this arrangement in 2013 and 2014 and each year concluded that the arrangement could continue as it did not substantially disrupt production requirements.
This year, Roy has conducted the annual review of the viability of this arrangement against the needs of production requirements. As you acknowledged, the volume of terminal boxes has halved over the past 4 years since it was arranged for you to supplement production by 1 hour (by starting at 6.00am). Roy concluded that at current volumes, he doesn’t need any extra production before the normal Operator arrives at 7.00am. Given this situation, Roy advised you that a further extension would now disrupt production and hence should not continue.
You appealed this decision and I met with you to assess the personal impact. We have considered your request that this arrangement continue, so that you can pick up your son from school. We have considered the personal impacts of this decision against the production requirements of the Rydalmere Factory. We have formed the view that because your son is now 16, utilising public transport to and from school is a viable option and that to continue this arrangement would cause unjustifiable hardship on the business.
I acknowledge that whilst you initially volunteered to transfer to day shift based on being able to have different hours, a ‘forced’ transfer was inevitable given that over 50 employees have been instructed to do so since then.
I considered your claim that under the Flexibility Clause in the EBA that the arrangement can only be terminated if both parties agree in writing. The agreement between you and Roy, was not an individual Flexibility arrangement as defined in clause 12 of the EBA, as such Rheem can require you to return to normal start and finish days of the day shift of the Rydalmere Factory.
We gave you 1 week’s notice to revert to standard hours and can extend this to allow you to progress the dispute with the Union Organiser.
Peter Ross
GM – HR’
24. On 13 March 2015, the AMWU wrote to Rheem on Mr O’Neill’s behalf. A copy of this correspondence is annexed hereto and marked ‘H’.
‘Dear Peter
Re: Shane O’Neill – flexibility arrangement
I write in relation to your correspondence to Mr O’Neill of 18 February 2015. The AMWU understands that Rheem wishes to terminate the arrangement and change Mr O’Neill’s hours to 7am – 3.30pm.
As you are aware, cl.13 of the Rheem Rydalmere Manufacturing Enterprise Agreement 2013 provides for individual flexibility arrangements to be made relating to hours of work and carer’s responsibilities. These arrangements, once made, can only be terminated by agreement. The previous agreement contained a similar clause.
The AMWU is of the view that the agreement about Mr O’Neill’s start and finish times is a flexibility arrangement under cl.13 of the agreement. It was expressly discussed as a flexibility arrangement when made, and this clause is the only mechanism under which arrangements of this nature can be facilitated under the agreement.
In any event, it is unreasonable for Rheem to require Mr O’Neill to change his start and finish times. It will mean that Mr O’Neill’s son will be required to catch two buses each way to and from school, leaving home at 5.00am and returning at approximately 5.30pm. Mr O’Neill is, reasonably, concerned about his son’s safety, general well-being and the detrimental impact this additional travel time will have on his studies in his final two years of school.
Accordingly, the AMWU requests that Rheem withdraw its request for Mr O’Neill to change his start and finish times. If this does not occur, the AMWU will escalate the dispute in accordance with the dispute resolution clause in the Agreement.
Should you wish to discuss this matter further, please note my contact details below.’
25. On 24 March 2015, Mr Ross wrote to the AMWU. A copy of this correspondence is annexed hereto and marked ‘I’.
‘In response to your letter dated 13th March 2015, we write to advise that unfortunately we cannot withdraw our requirement that Shane O’Neill return to standard hours of 7.00am to 3.30pm.
In 2010, it was agreed between Shane and Rheem that his working hours would be varied to 6.00am to 2.30pm, to enable Shane to pick up his son from school. This arrangement was informal and not documented. However, there was a discussion with Shane that Rheem would review the arrangement on an annual basis. Annually, we have been able to accommodate this arrangement as there has been work for Shane to do from 6.00am to 7.00am before production commences for the day. However, due (sic) a recent drop in volumes, there is minimal work for Shane to do from 6.00am to 7.00am. Shane is aware of this.
Given the nature of the production line, having an Operator’s hours of work “out of synch” with all the others is disruptive to productivity.
Whilst we have taken into account Shane’s comments regarding the personal impact this decision will have on him and his family, unfortunately we cannot continue this arrangement due to the impact it has on production.
We disagree that this arrangement was an individual flexibility arrangement as contemplated by clause 12 of the enterprise agreement. It was an informal arrangement between Shane and Rheem, with the intention that it would be reviewed on an annual basis subject to the needs of the business. It was never agreed that such an arrangement would continue until Shane’s son finished high school.’
[7] I have considered the obligations arising pursuant to clause 12 Flexibility Term. In relation to the alleged agreement between the parties I make the following findings.
● Clause 12.1 is complied with. The agreement deals with start and finish times and Carer’s responsibilities, meets the genuine needs of the employer and employee in relation to those issues and was genuinely agreed to by the parties.
● Clause 12.2 is complied with. The terms of the agreement involve permitted matters and are not unlawful. The employee is better off overall than he would have been had the agreement not been made.
● There is no single document that represents the individual flexibility arrangement under consideration. As an examination of the Agreed Facts demonstrates, the arrangement was the subject of correspondence between the parties which settled the terms of the arrangement. I am satisfied that the arrangement is in writing in terms that comply with the obligations pursuant to Clause 12.3 of the Agreement.
● Clause 12.4 is complied with since the correspondence between the parties satisfies the obligation.
● Clause 12.5 sets out the basis on which the arrangement may be terminated. It can be terminated at any time in writing by agreement. In these circumstances there is no agreement.
Conclusion
[8] Pursuant to clause 12.5 this arrangement can only come to an end by agreement in writing. This has not taken place. The arrangement can therefore only come to an end at the expiration of its term. The arrangement is limited to the period of Mr O'Neill's son’s attendance at the out of area school where he is currently in Year 11. It will cease on its own terms at the conclusion of his schooling in Year 12.
SENIOR DEPUTY PRESIDENT
1 Exhibit AMWU 2
2 Exhibit Rheem 1
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