“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Visy Packaging Properties Pty Ltd - [2025] FWC 1891

[2025] FWC 1891

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

Visy Packaging Properties Pty Ltd

(C2024/6618)

COMMISSIONER PERICA

MELBOURNE, 2 JULY 2025

Application to deal with a dispute in accordance with a dispute settlement procedure

Introduction

Visy Packaging Properties Pty Ltd (Visy) operates a factory in Coburg which produces metal cans for pet food and other products. The employees who manufacture the cans are represented by the AMWU and are covered by Visy Packaging Pty Ltd [Coburg] Collective Agreement 2023 (the Agreement).

On 19 September 2024, the AMWU filed an application under s 739 of the Act to deal with a dispute in accordance the dispute settlement procedure in clause 31 of the Agreement.

The dispute concerns a 5 August 2024 roster change by Visy (the 5 August Roster) for 37 employees covered by the Agreement who work in three areas of the Coburg plant: “High Speed Ends” (which includes a line known as “SIG”), “Tapered Ends” and “Full Panel”. Each of those areas involves cutting and shaping metal to form different parts of a completed food can.[1]

The AMWU argues the Agreement, which incorporates the Manufacturing and Associated Industries and Occupations Award 2020 (MA00010) (the Metals Award) and a snapshot of the Graphic Arts Award as in force on 1 March 2006 (2006 GAA), does not permit Visy to make the roster change without a majority vote of the affected employees. Visy argues there is no such impediment arising from the Agreement.

Between March to October 2024, Visy engaged in consultation with the affected employees and their union about the prospect of these changes.[2] The AMWU argues the implementation of the 5 August Roster required more than consultation under the Agreement and the incorporated Awards.

It is not contested the AMWU has complied with the dispute settlement procedure in bringing the matter to the Commission or that I have jurisdiction to determine this dispute under s 739.

The procedural history of this matter can be put shortly: following a failed conciliation on 23 October 2024, directions were issued. After some amendments to the directions, a hearing was set down for 10 February 2025 and the matter was heard on that day. Mr. Stephen Fodrocy, an industrial officer employed by the AMWU appeared for it and its members. Mr. Brad Popple, a partner in the firm Kingston Reid appeared for Visy on my leave.

Relevance of GAA 2006 to this dispute

The AMWU in its reply submissions conceded the GAA 2006 is not relevant to this dispute.[3] It follows I will give no consideration to that Award in this decision.

QUESTIONS FOR ARBITRATION AND THEIR ANSWERS

On 12 November 2024, the parties agreed to three questions for arbitration. The AMWU and Visy concur on the answer to the third agreed question. I set out below each of the agreed questions together with an additional question which Visy submits should be answered to resolve the dispute (Visy Question). I also set out the answer to that question. The reasons for those answers follow subsequently.

Question One
Does the Agreement prevent Visy from changing the roster applicable to employees working in the SIG, Tapered Ends and Full Panel areas (Employees) without majority agreement?
No, subject to Visy meeting the requirements of clause 17.2(a) and clause 42 of the Metals Award.
Question Two
Do the shift and payment rules in cl 40 of the Agreement continue to apply to the Employees if the Respondent changes their roster?
No.
Question Three:
Does cl 27(h) of the Agreement apply to the Employees?
The answer to this question is no longer in dispute. Visy, in its outline of submissions dated 17 January 2025 agreed clause 27(h) of the Agreement applied to the relevant employees. It follows that question is resolved and does not require determination by the Commission.[4]

Visy Question

Visy argues there is a further issue that “divides the parties” that requires determination. Whether the particular shift changes introduced by the 5 August Roster required the agreement of a majority of affected employees.[5] The AMWU argues the agreed Question One is “broad enough to contemplate this issue”. I agree with Visy that a conclusive resolution of this dispute requires an answer to this more specific question. I therefore pose the question:

Do the particular shift changes introduced by Visy on 5 August require the agreement of a majority of affected employees?
No.

RELEVANT FACTS

Over the three years from 2021 to 2024, there was a reduction in the volume of sales for the food cans produced by Visy at Coburg.[6] Since June 2022, there was an “18.2% reduction on sales/production to budget” which was “21 percent” down from the forecast for sales.[7] As a result of this downturn, Visy argued “it needed to change how the entire ends factory operates to ensure sustainability and for long term jobs.”[8] The action it proposed to take was a reduction of hours for the Tapered Ends, Full Panel and High Speed End areas on the site.

The joint Proposed Agreed Statement of Facts contains a short summary of facts in paragraph 2 of that document:

“On 18 June 2024, [Visy] notified certain employees at its site in Coburg Victoria that is proposed to change their hours of work which: reduced their average weekly rostered overtime hours by two hours; and reduced the payment for average weekly overtime from double time to time and a half.”

Visy filed a witness statement of Mr. Andrew Mynard, the Plant Manager at Coburg, the contents of which were not contested.[9] It succinctly sets out the circumstances of the roster change which is central to this dispute.

“11. Prior to 5 August 2024, there were several different roster patterns worked by employees across the “Tapered Ends”, “Full Panel” and “High Speed End” areas at the Site.
12. One roster pattern worked by some employees involved:
(a) four shifts of 12 hours’ duration in week 1; and
(b) three shifts of 12 hours’ duration in weeks 2 and 3,
giving a total of 120 hours every three weeks, and an average of 40 hours per week. Employees first commenced working this roster in 2022.

13.      On 5 August 2024, Visy transitioned all employees in the “Tapered Ends”, “Full Panel” and “High Speed End” areas onto this roster. The purpose of this change was to reflect
          a reduction in customer demand, resulting in a reduction of the required amount of         production overtime built into one of the previous “legacy” rosters (which    involved 42 hours per week as I describe below) and also to align all employees on the     same roster to enable greater flexibility across the work areas to cater for the reduced     customer demand.
14.      Prior to 5 August 2024, the employees in the “Tapered Ends” area who did not work       the roster described at paragraph 12 above, worked a roster pattern involving:
(a) three shifts of 12 hours’ duration, and a single shift of 8 hours’ duration in week 1; and
(b) three shifts of 12 hours’ duration in week 2,
giving a total of 80 hours each fortnight, and an average of 40 hours per week.

15. Before 5 August 2024, the employees in the “Full Panel” and “High Speed End” areas who did not work the roster described at paragraph 12 above, worked a roster pattern involving:
(a) four shifts of 12 hours’ duration in week 1; and
(b) three shifts of 12 hours’ duration in week 2,
giving a total of 84 hours per fortnight, and an average of 42 hours per week.”

In its outline of submissions, Visy summarised the effect of these changes as follows:[10]
“Due to a reduction in demand and associated need to reduce overtime, from 5 August 2024, all High-Speed Ends, Full Panel and Tapered Ends employees were transitioned to a uniform roster pattern involving 10 shifts of 12 hours’ duration every 3 weeks. This involves an average of 40-hour week.
That is, for High Speed Ends and Full Panel employees, the change in effect involved having a fourth shift worked every three weeks instead of every second week, resulting in a reduction of two hours’ overtime per week. For Tapered Ends employees, the change involved replacing the one eight hour shift each fortnight, with a 12 hour shift every three, but their overall hours were unaffected.”

In its reply submissions, AMWU noted the summary of facts in Visy’s outline “omits a further alteration” made by Visy to the shift and payment rules: “That is by reducing the rate of payment for overtime from double time to time and a half.”[11] This was expressed in the Agreed Statement of Facts as “reduced average weekly rostered overtime by two hours and reduced the payment for average weekly overtime from double time to double time and a half”.

RELEVANT AGREEMENT AND INCORPORATED AWARD PROVISIONS

CLAUSE 6 OF THE AGREEMENT INCORPORATING THE METALS AWARD

Clause 6 of the Agreement incorporates the terms of the Metals Award:
6.1      This Agreement incorporates the terms of the [Metals Award], as varied     from    time to time and the 2006 GAA as in force on 1 March 2006       (Award/s).
6.2      If an incorporated Award term is inconsistent with an express term of this Agreement, the express term in the Agreement prevails over the incorporated         Award term to the extent of the inconsistency.
6.3       In this Agreement references to the Award shall mean the Award as         incorporated into the Agreement unless the context requires otherwise.
6.4 Upon incorporating Award terms into the Agreement the incorporated Award terms are to be read as altered with the appropriate changes to make them provisions of the Agreement rather than provisions of the Award. So, for example, the loadings, penalties and allowances in the Award apply to the rate of pay due under this Agreement.
6.5 Where site management or employees wish to implement workplace change through the application of any facilitative provision in the Awards set out above, such changes will only be implemented by agreement between management, the majority of employees in the department(s) affected, and the relevant union/s concerned.
6.6      The parties agree that the intent of the provisions is to facilitate the efficient         organisation and performance of work without adversely affecting the level of    employee entitlements.
6. 7      Except for any agreed changes under the facilitative provisions, or what is otherwise provided for in this Agreement, existing site payments and     employment conditions will continue to apply as provisions of this Agreement.

CLAUSE 17: THE METALS AWARD ON ORDINARY HOURS OF WORK

Clause 17 of the Metals Award relevantly states:
Ordinary hours of work and rostering

17.1Hours of work
(a)Maximum weekly hours and requests for flexible working arrangements are provided for in the NES.
(b)Facilitative provisions in clauses 17.2 to 17.5 operate in conjunction with clause 7.3 or clause 7.4 as relevant.

17.2Ordinary hours of work—day workers
(a)Subject to clause 17.5, the ordinary hours of work for day workers are an average of 38 per week but not exceeding 152 hours in 28 days.
(b)The ordinary hours for day workers will not exceed 8 per day unless otherwise agreed in accordance with clause 17.5.
(c)The ordinary hours of work may be worked on any day or all of the days of the week, Monday to Friday. The days on which ordinary hours are worked may include Saturday and Sunday subject to agreement between the employer and the majority of employees concerned. Agreement in this respect may also be reached between the employer and an individual employee.
(d)The ordinary hours of work are to be worked continuously, except for meal breaks, at the discretion of the employer between 6.00 am and 6.00 pm. The spread of hours (6.00 am to 6.00 pm) may be moved up to one hour forward or one hour back by agreement between an employer and:
(i)the majority of employees at the workplace;
(ii)the majority of employees in a discrete section of the workplace; or
(iii)an individual employee.

Different agreements may be reached with the majority of employees in different sections of the workplace or with different individual employees.
(e)Any change to regular rosters or hours of work is subject to the consultative provisions in clause 42.2.
(f)Any work performed outside the spread of hours must be paid for at overtime rates. However, any work performed by an employee prior to the spread of hours which is continuous with ordinary hours for the purpose, for example, of getting the plant in a state of readiness for production work is to be regarded as part of the 38 ordinary hours of work.
(g)Where agreement is reached in accordance with clause 17.2(c), the rate to be paid to a day worker for ordinary time worked is:
(i)between midnight on Friday and midnight on Saturday—150% of the ordinary hourly rate; and
(ii)between midnight on Saturday and midnight on Sunday—200% of the ordinary hourly rate.

(h)A day worker required to work on a public holiday must be paid for a minimum of 3 hours’ work at the rate of 250% of the ordinary hourly rate. The 250% rate must be paid to the employee until the employee is relieved from duty.

(i)Hours of work performed immediately before or after a part-day public holiday, that form part of one continuous shift, are counted as part of the minimum payment/engagement period in clause 17.2(h).

17.3Ordinary hours of work—continuous shiftworkers
(a)Clause 17.3 does not apply to vehicle manufacturing employees covered by clause 4.8(a)(xi). The provisions relating to ordinary hours for continuous shiftworkers for these employees are prescribed in clause 50.1 of Part 9 – Vehicle manufacturing employees of this award.
(b)Continuous shiftwork means worked carried on with consecutive shifts of employees throughout the 24 hours of each of at least 6 consecutive days without interruption except for breakdowns or meal breaks or due to unavoidable causes beyond the control of the employer.
(c)Subject to clause 17.3(e), the ordinary hours of continuous shiftworkers are, at the discretion of the employer, to average 38 hours per week inclusive of meal breaks and must not exceed 152 hours in 28 consecutive days. Continuous shiftworkers are entitled to a 20 minute meal break on each shift which must be counted as time worked. Any change to regular rosters or ordinary hours of work is subject to the consultative provisions in clause 42.2.
(d)The ordinary hours for continuous shiftworkers will not exceed 8 per shift unless otherwise agreed in accordance with clause 17.5.
(e)By agreement between the employer and the majority of employees concerned, a roster system may operate on the basis that the weekly average of 38 ordinary hours is achieved over a period which exceeds 28 consecutive days but does not exceed 12 months.
(f)Except at the regular changeover of shifts, an employee must not be required to work more than one shift in each 24 hours.

17.4Ordinary hours of work—non-continuous shiftworkers
(a)Clause 17.4 does not apply to vehicle manufacturing employees covered by clause 4.8(a)(xi). The provisions relating to ordinary hours for non-continuous shiftworkers for these employees are prescribed in clause 50.2 of Part 9—Vehicle manufacturing employees of this award.
(b)Subject to clause 17.4(d), the ordinary hours of work for non-continuous shiftworkers are an average of 38 per week and must not exceed 152 hours in 28 consecutive days.
(c)The ordinary hours for non-continuous shiftworkers will not exceed 8 per shift unless otherwise agreed in accordance with clause 17.5.
(d)By agreement between the employer and the majority of employees concerned, a roster system may operate on the basis that the weekly average of 38 ordinary hours is allowed over a period which exceeds 28 consecutive days but does not exceed 12 months.
(e)The ordinary hours of work must be worked continuously, except for meal breaks, at the discretion of the employer.
(f)Except at changeover of shifts, an employee must not be required to work more than one shift in each 24 hours.

17.5Methods of arranging ordinary working hours
(a)Subject to the employer’s right to fix the daily hours of work for day workers from time to time within the spread of hours referred to in clause 17.2(d) 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. Any change to regular rosters or ordinary hours of work is subject to the consultative provisions in clause 42.2.
(b)The matters on which agreement may be reached include:
(i)how the hours are to be averaged within a work cycle established in accordance with clauses 17.2, 17.3 and 17.4 and clauses 50.1 and 50.2 of Part 9—Vehicle manufacturing employees of this award for vehicle manufacturing employees covered by clause 4.8(a)(xi).
(ii)the duration of the work cycle for day workers provided that the duration does not exceed 3 months;
(iii)rosters which specify the starting and finishing times of working hours;
(iv)a period of notice of a rostered day off which is less than 4 weeks;
(v)substitution of rostered days off;
(vi)accumulation of rostered days off;
(vii)arrangements which allow for flexibility in relation to the taking of rostered days off; and
(viii)any arrangements of ordinary hours which exceed 8 hours in any day.

Twelve hour days or shifts(c)
By agreement between an employer and the majority of employees in the enterprise or part of the enterprise concerned, 12 hour days or shifts may be introduced subject to:
(i)proper health monitoring procedures being introduced;
(ii)suitable roster arrangements being made;
(iii)proper supervision being provided;
(iv)adequate breaks being provided; and
(v)a trial or review process being jointly implemented by the employer and the employees or their representatives.

(d)Payment for work on other than a rostered shift is in accordance with clause 33.2(g).

CLAUSE 40 OF THE AGREEMENT

Clause 40 of the Agreement sets out “existing 12 hour shift and payment rules” applicable to 12 hour workers as follows:

“12 HOUR RULES – FULL PANEL, BEVERAGE, SIG SHIFT 1 & 2, TAPERED ENDS AND “12 HOUR” ELECTRICIANS

The following provisions simply sets out some of the existing 12 hour shift and payment rules applicable to 12 hour workers working in Full Panel, Beverage, Tapered Ends, Electricians and SIG Shifts 1, 2 & 3. In relation to SIG Shift 3 – the current agreed arrangement entered into in October 2014 is set out in Appendix 2.

Full Panel and Beverage have Two Shifts – Day Shift and Night Shift
Day shift will start at 7.00am and finish at 7.00pm
Night shift will start at 7.00pm and finish at 7.00am
Tapered Ends currently is only operating on Day Shift

Hours of Work
Day 7.00am to 7.00pm
7:00 am to 5.51 pm (10.85 hours) @ ordinary time.
5.51 pm to 7.00 pm (1.15 hours) @ double time.

Night 7.00 pm to 7.00 am
7.00 pm to 5.51 am (10.85 hours) @ ordinary time.
5.51 am to 7.00 am (1.15 hours) @ double time.

“12 Hour” Electricians have Two Shifts - Day Shift and Night Shift
Day shift will start at 6.00am and finish at 6.00pm.
Night shift will start at 6.00pm and finish at 6.00am.
Please note that shifts are fixed shifts - i.e. employees will not be required to rotate between Day and Night shifts.

Meal Breaks
There will be four paid breaks during each shift - two 25 minute “lunch breaks” and two 15 minute “tea breaks”, or two paid 40 minute breaks.

Rostered Hours - Monday to Friday
When an employee works rostered hours during Monday to Friday they will be paid 10.85 hours @ ordinary time, and 1.15 hours @ double time.

Rostered Hours - Saturday or Sunday
When an employee works rostered hours on Saturday or Sunday they will be paid 12.00 hours @ double time.

Hourly Loading - When Rostered Off
When an employee works non rostered hours on any day they will be paid 12 hours @ double time.

Shift Loading
Day= zero loading and Night= 30% loading.
Please note that shift loading does not apply at weekends or public holidays.

Leisure Leave
Leisure leave is excluded from this roster. Previously accrued leisure leave will be paid out at the pre-12 hour roster rate.

Annual Leave Loading
Weekday annual leave is paid at 10.85 hours @ ordinary, and 1.15@ hours double time, plus loading of 17.5 % for Day and 30% for Night.

Annual leave at weekends is paid at 10.85 hours + 100% loading plus 1.15 hours @ double time e.g. 2 weeks annual leave is paid (7 days x 10.85 hours= 75.95 hours) (2 weeks leave at 38 hour week) (1.15 hours does not come off annual leave accrual).

Specific for Beverage 12 hour shift arrangements leave loading is paid at 23% regardless of dayshift or Nightshift leave taken Monday to Friday.

Annual Leave Accrual
While on this roster an employee will accrue annual leave on the basis of 190 hours per year i.e. 5 weeks x 38 hours.

Personal Leave
While on this roster employees will accrue personal leave as per clause 23 of this Agreement, i.e. 10 days at 12 hours.

Where an employee is sick they will be paid 12 hours ordinary time. Same at weekends or public holidays.
As per clause 24(e) employees must, as soon as reasonably practicable, inform the Company of their inability to attend work.

Public Holidays -
Site management reserve the right to schedule work on any public holiday.
Employee/swill be only rostered to work on public holidays after consultation and agreement.

Public Holidays - When Rostered On
For a shift worked when rostered on for a public holiday, payment will be 3.5 times ordinary pay = 42 hours pay for 12 hours worked.

Public Holidays - When Rostered Off
Where an employee is rostered off during a public holiday they shall be paid 12 hours ordinary time.

Long Service Leave
Accrues at 13 weeks after 13 years at 38 hours per week.
Long service will be paid at 10.85 hours at ordinary time and 1.15 hours at double time. The “1.15 hours double time” will not be deducted from their long service leave accrual.

Superannuation Guarantee Legislation
Superannuation will be paid in accordance with the superannuation guarantee legislation.

Superannuation - Rostered Hours Monday to Friday
An employee will continue to be paid superannuation on ordinary hours at single time. This means 10.85 hours for an employee on a 12 hour shift, plus where appropriate, night shift penalty.

Superannuation -Rostered Hours Saturday, Sunday, and Public Holidays
An employee will be paid superannuation at double time. This means 10.85 hours at double time, plus where appropriate, night shift penalty.

Superannuation - Non Rostered Weekdays, Weekends or Public Holidays
An employee will not be paid superannuation for any hours worked on non rostered weekdays, weekends, or public holidays.

Jury Duty
No change - an employee on jury duty will be paid what they would have earned had they not been on jury duty - minus any payment from the court.

I will now summarise the arguments of the parties with respect to these provisions.

AMWU SUBMISSIONS

Question one[12]

AMWU argues the Agreement prevents Visy from changing the roster applicable to employees working in the SIG, Tapered Ends and Full Panel areas without majority agreement where the ordinary hours each day exceed 8 hours. Clause 40 sets out the existing workers working in Full Panel, Beverage, Tapered Ends, Electricians and SIG Shifts 1, 2 and 3.

Clause 6.7 of the Agreement preserves these as ‘existing site payments and employment conditions’, unless changed by agreement under the facilitative provisions of the Awards or otherwise set out in the Agreement. Visy is prevented by cl 6 of the Agreement from altering the existing conditions without agreement of a majority of employees (regardless of whether the rosters are explicitly set out in the Agreement).

While the Awards contain facilitative provisions to change conditions, cl 6.5 of the Agreement clariﬁes that any ‘such changes will only be implemented by agreement between management, the majority of employees in the department(s) aﬀected, and the relevant union/s concerned’. It is clear by the text of the Agreement the existing roster conditions and those in cl 40 were to be preserved unless changed, but any change would only occur by agreement of a majority of employees.

Clause 27(h) of the Agreement begins with the words “consultation and agreement prior to any changes in shift patterns as required by the Award/s”. The AMWU argues “this reaﬃrms the import of cl 6.5 and what is stated in the incorporated Awards.”[13]

Clause 17.5 of the Metals Award is an incorporated term by virtue of cl 6 of the Agreement. The AMWU argues:

·   Clause 17.5(a) prevents Visy from arranging the ordinary working hours without agreement with a majority of employees in the enterprise or part of the enterprise concerned.
·   Clause 17.5(b) lists the matters which agreement may be reached including how the hours are to be averaged and the arrangements of ordinary hours which exceed 8 hours in any day.
·   Clause 17.5 (c) deals with the introduction of 12 hour days or shifts but does not detract from the prohibition in sub-cl (a). That is, the sub-clauses are not inconsistent and apply concurrently.

The arrangement of ordinary hours for the relevant employees was agreed between a majority of the employees and Visy, as reﬂected in the applicable rosters and cl 40 of the Agreement.

The new arrangement of ordinary hours exceeds those contained in clause 17.2 of the Metals Award. Clause 17.5(a) of that Award requires the arrangement ‘must’ be by agreement between the employer and majority of employees concerned. By virtue of clause 17.5(b), the agreement required is not limited merely to the introduction of 12-hour days or shifts but includes agreement on matters such as the averaging of hours.

According to the AMWU, the terms of the incorporated Awards require agreement of a majority of employees before Visy may set the arrangement of ordinary hours in excess of 8 hours per day; these terms would be rendered useless if Visy can later change the arrangements on which agreement was reached without further agreement.

The AMWU argues “it is evident from context of clause 17.5 of the Manufacturing Award …that the requirement for agreement of a majority of employees is necessary because of the safety, health and wellbeing concerns associated with 12 hour days or shifts” [clause 17.5(c)]. It would frustrate the protective purpose of these provisions if employers could unilaterally alter the arrangements in any manner despite initially securing agreement on arrangements which a majority of employees considered adequate.

It argues the Agreement preserves the existing terms and conditions unless changed according to the facilitative provisions of the incorporated Awards including preserving the arrangement for 12 hour shifts applicable to the SIG, Tapered Ends and Full Panel areas (including the applicable rosters and the matters set out in cl 40). Clause 6 of the Agreement makes clear that any change must be by agreement of a majority of the relevant employees and this supports the AMWU’s contention that clause 17.5 of the Manufacturing Award apply to prevent Visy from changing the arrangements without that agreement. Nothing in the Agreement is expressly inconsistent with these Award terms, which are incorporated and read as if they were terms of the Agreement accordingly.

The AMWU therefore concludes Visy cannot alter the arrangements for 12 hour shifts without the agreement of a majority of the relevant employees, unless Visy implements the default position of the Awards.

On Question two[14]

Clause 40 of the Agreement headed ‘12 Hour Rules – Full Panel, Beverage, SIG Shifts 1 & 2, Tapered Ends and “12 Hour” Electricians’ “simply sets out some of the existing 12 hour shift and payment rules applicable to 12-hour workers working in those areas” with SIG Shift 3 set out in Appendix 2.

The terms of clause 40 “simply sets out”:
·   The roster for Beverage Workers.
·   Full Panel and Beverage workers operate on day and night shifts while Tapered Ends only operates on day shift. The clause does not set out whether SIG Shifts 1 or 2 operate on day and/or night shifts.
·   The hours of work and rates applicable to all employees (except SIG Shift 3 and “12 Hour” Electricians):

Day 7.00am to 7.00pm
7:00 am to 5.51 pm (10.85 hours) @ ordinary time.
5.51 pm to 7.00 pm (1.15 hours) @ double time

Night 7.00 pm to 7.00 am
7.00 pm to 5.51 am (10.85 hours) @ ordinary time
5.51 am to 7.00 am (1.15 hours) @ double time

· An employee works rostered hours during Monday to Friday they will be paid 1.15 hours at double time and on Saturday or Sunday they will be paid 12 hours at double- time.

Visy is prevented from altering the shift and payment rules set out in cl 40 of the Agreement unilaterally.

Section 50 of the Act prohibits a person from contravening a term of an enterprise agreement. As the Agreement applies to Visy and the relevant employees, Visy is prohibited from contravening its terms. Any entitlement to alter its terms must be found in the Agreement itself or elsewhere in the terms and conditions applicable to the relevant employment.

The text of cl 40 of the Agreement prescribes terms and conditions for employees who are a “12 hour worker” who works in Full Panel, Beverage, Tapered Ends, as Electricians or on SIG Shifts 1 to 3. If the workers come within that class, they are entitled to the benefit of clause 40.

According to the AMWU, the class of employees who work Monday to Friday are entitled to 1.15 hours at double-time and on Saturday or Sunday 12 hours at double-time. Unless varied by agreement of a majority of employees in accordance with the incorporated Award terms, Visy is prohibited from contravening this entitlement by s 50 of the FW Act.

Nothing in the Agreement entitles Visy to unilaterally change the existing 12 hour shift and payment rules set out in cl 40 which apply to 12 hour shift workers in the relevant areas.

As explored above, cl 6 of the Agreement incorporates the Metals Award. The Award contains the process by which the arrangements for 12 hour shifts may be changed, but any such changes must be with agreement of a majority of aﬀected employees. Clause 6.7 speciﬁcally preserves existing pay and conditions unless altered by the facilitative provisions of the incorporated Awards.

Clause 15 of the Agreement deals with Visy’s obligations to consult when it proposes to introduce a change to the regular roster or ordinary hours of work. However, it does not provide a substantive entitlement for Visy to change the shift and payment rules in cl 40. The obligation to consult per se does not contain any right on part of Visy to make changes (such rights might be found elsewhere).

Clause 30 of the Agreement provides the parties bound by the Agreement will not pursue any extra claims relating to any terms and conditions of employment for the life of the Agreement. Without identifying any source for the right to alter the rules set out in cl 40, Visy would appear to be making an extra claim when it proposed to change those rules without agreement of a majority of employees.

The shift and payment rules set out in cl 40 of the Agreement continue to apply to the relevant employees to the extent that they are 12 hour workers in the areas listed in that clause, regardless of whether the Respondent otherwise changes their roster.

The shift and payment rules are set out as a term of the Agreement, which is enforceable by virtue of s 50 of the FW Act. The Agreement may only be varied in accordance with the facilitative provisions or otherwise in accordance with law. Unless such a variation is made, the shift and payment rules in cl 40 of the Agreement must continue to apply.

VISY SUBMISSIONS

The 2022 decision

The argument of Visy is essentially the questions in issue in this arbitration have been argued and conclusively determined before in AMWU v. Visy Packaging Limited a decision of Deputy President Gostencnik dated 20 July 2022 (the 2022 decision).[15] Visy argues in the interests of comity and the regular administration of justice I should follow that decision.[16]

In its submissions, Visy summarise the dispute determined by the Deputy President in that decision[17] (the emphasis was added by Visy):

· The AMWU and Visy were in disagreement as to whether, and how, cl 40 of a materially identical predecessor to the Agreement operated in relation to Tapered Ends employees who worked a roster pattern different to that contemplated by that clause (and specifically in relation to the applicable payment entitlements in those circumstances).

· Visy contended, as it does here, that cl 40 simply “[recorded] a particular arrangement that applied to rosters involving an average of 42 hours per week, comprised of 12 hour shifts” and had no application where a different roster was in place. By contrast, the AMWU contended, as it does here, that cl 40 set forth “rules” for payment that continued to apply.

· At the time of this disagreement, Visy was also contemplating a further change to the roster patterns of the relevant employees. This change was opposed by the relevant
Tapered Ends employees and the AWMU.

The Questions asked of the Deputy President ultimately determined by him were:

· Whether or not the 2019 Agreement permitted Visy to change employees’ rosters without obtaining majority agreement. Visy argues the substance of this question is identical to the substance of Question 1.[18]

· Whether cl 40 of the 2019 Agreement applied to the relevant employee who was working a roster pattern different from that contemplated by cl 40. The substance of this question is also materially identical to the substance of question 2.

· To determine the payment rules applicable in circumstances where the FWC found that cl 40 did not apply to employees working a different roster pattern

Visy summarises the effect of the 2022 decision as follows:[19]

· Visy had a right to change the relevant employees’ roster without their majority agreement, provided it had met any applicable consultation obligations, and subject to certain limitations on its capacity to do so. While the FWC was not asked to determine the extent of these limitations – the question was in general sense whether a change to rosters required employee agreement – some observations were made in the 2022 Decision about this in obiter.

· The provisions of cl 40 were “designed for a particular species of shift arrangement and not to work upon a 12 hour shift per se”. They reflect a “carry-over” of a previous shift arrangement no longer in place, and recorded the mechanism for averaging of ordinary time, and a spreading overtime, over that species of shift arrangement. Where a change in roster made those mechanisms inapt, the payment terms of the incorporated Award apply.

Visy argues the conclusions that Deputy President Gostencnik reached in the 2022 decision conclusions are “dispositive of the Questions”. It argues “The contentions now made by the AMWU were raised then. The findings were not appealed”. They apply such that the answer to Question 1 is “yes”, and the answer to Question 2 is “no”.

A fresh determination will lead to the same conclusion as the 2022 decision

Visy also argues should I seek to “determine the Questions afresh” I should reach the conclusions consistent with the 2022 decision because:[20]

· The Agreement does not expressly deal with ordinary hours of work, and so recourse must be had to the terms of the incorporated Metals Award.

· The Award provides Visy with discretion as to the fixing of hours of work.

· There may be some procedural requirements that must be fulfilled as part of the introduction of a roster change, and also that there may be a need to meet the requirements of the facilitative provisions for some changes; and

· If a roster change is introduced, the shift and payment rules set out in cl 40 will no longer have application, and instead the provisions of the Award will apply.

Right of the employer to fix hours of work

Visy relies on the arguments it made on this topic in the dispute which was resolved by the 2022 decision[21] (emphasis added by Visy):

· Clause 17.2(d) of the Metals Award (which applies to day workers), and cl.17.4(e) (for non-continuous shift workers), each provides that “the ordinary hours of work must be worked continuously, except for meal breaks, at the discretion of the employer”. (emphasis added). That is, the Award expressly provides that employers have discretion as to when ordinary hours are worked.
· This discretion is reinforced at cl.17.5(a) of the Award which provides (with emphasis added)
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 17.2(d) 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. Any change to regular rosters or ordinary hours of work is subject to the consultative provisions in clause 41.2.

· The Award is clear that employers to whom it applies have a right to fix daily hours of work for day workers, and the starting and finishing time of shifts from time to time for shift workers.

· Clause 17.5 goes on to say that the “the arrangement of ordinary working hours must be by agreement…”. This does not mean that any and all changes to working hours requires the agreement of a majority of employees. The introductory words to cl.17.5 expressly and unambiguously state that this requirement only operates “subject to” the employer’s express rights that are expressed earlier in that clause.

· The need for majority agreement only arises when the employer seeks to rely upon the flexibility provided by the “facilitative provisions” of the Award to vary the standard conditions provided, within the allowable framework. It does not otherwise arise given the employer’s right to fix the daily hours of work for an employee or the commencing and finishing times of shifts.

· The plain language “subject to” makes clear that a majority agreement of employees to their hours of work is only necessary in particular circumstances, where the hours of work are not within the “default conditions” of the Award. Those words must be given their ordinary meaning.

The 5 August Roster is within the “default conditions” of the Award

Visy argues (as they did in the dispute in issue in the 2022 decision) the new roster in this proceeding hours is within “default conditions” of the Metals Award and therefore the facilitation provisions are not required. It relies on the following arguments:[22]

· The agreement of the relevant employees may be required to implement certain roster patterns, where this necessitates recourse to the “facilitative provisions” of the Award. The roster introduced on 5 August 2024 did not, however, necessitate such a course.

· It is unsurprising agreement through the facilitation provisions are not required, when the nature of the changes is considered. It involves relatively minor changes to existing and established arrangements which have long been in place primarily in order to reduce unnecessary overtime, without the adoption of any fundamental changes. Under the old rosters, the Relevant Employees worked predominantly 12-hour shifts and worked either 3 or 4 shifts per week. That remains the case now.

Visy argues the facilitative provisions relied upon by the AMWU in cl.17.5(b) and (c) of the Metals Award are not engaged for the following reasons:

· 12 hour shifts are regulated by cl.17.5(c) of the Award, which prevails over cl.17.5(b).

· 12 hour days and shifts have been the long-standing norm for employees in the “Tapered Ends”, “Full Panel” and “High Speed Ends” areas. So much is acknowledged by the Agreement (and its predecessors). In those circumstances it cannot be said that the roster change resulted in 12-hour shifts being “introduced” for the purposes of cl.17.5(c); and

· The employees’ hours of work are an average of 38 per week in every 21-day period. As this is less than 28 days, it falls within the “default” arrangements under clauses 17.2(a) and 17.4(b).

Visy arguments on clause 40

The text of clause 40 in the Agreement is in the same terms as it was in the predecessor to 2019 agreement. The 2019 Agreement was relevant to the determination of the dispute in issue in the 2022 decision. Visy relies on its submissions it made in relation to clause 40 in that dispute which I summarise below (the emphasis was added by Visy).[23]

·   When cl 40 is read and properly construed in context, it is apparent the purpose of the clause was to record a particular arrangement that applied to rosters involving an average of 42 hours per week, comprised of 12-hour shifts. That is, the Previous Roster worked by the Employees under the 2015 Agreement (from which cl 40 was “rolled over” into both the 2019 Agreement and the Agreement).
·   This purpose is “made clear by” the express language of cl 40, which commences by specifically identifying its purpose – that is, it “simply sets out the existing 12 hour arrangements and payment rules applicable to 12 hour workers working in” various parts of the Site.
·   It is understandable why cl 40 is expressed like this because the hours of work under the Agreement are capable of change, and this will affect the incidents of work identified in cl 40, including payment for additional hours.
·   In the same way, there are other parts of the the Agreement that have been included to simply record matters without creating any particular right or obligation. Visy gives the example of clause 13 of the Agreement are directory.
·   Even if cl 40 does have the effect of “providing certain entitlements” and is a “binding obligation that cannot be varied solely at the Respondent’s discretion” (which should be rejected), that is to miss the point. The question then becomes: in what circumstances do those entitlements and obligations apply?
·   The content of the clause reinforces an understanding that it was not intended to apply to different roster formulations involving shifts that are not of 12 hours’ duration, and an average of more or less than 42 hours work per week. Nor can it be said to simply apply on any occasion where a 12 hour shift is worked by an Employee on the Tapered Ends Line.
·   When the roster changes, the provisions of cl 40 are no longer capable of sensible application. This is immediately apparent because the specified hours of work, and the mathematical averaging of ordinary time across shifts in a roster pattern, no longer follows.
·   The content of cl 40, as a whole, and read in the context of the Agreement as a whole (including that it permits changes to be made to employees’ hours of work), that leads to the conclusion that cl 40 was not adapted nor intended to apply to differing roster arrangements involving shifts of differing durations.
·   These strong contextual indicators lead to the conclusion that the words “12 hour workers” should be construed as workers who work a roster pattern comprised exclusively of 12 hour shifts and with an average of 42 hours per week. That is the industrial context which the clause was intended to “set out the existing 12 hour shift and payment rules”.
·   If the clause was intended to “provide certain entitlements” that applied on any occasion when an employee worked a 12 hour shift, it could have said so. But the application of the clause is expressed not by reference to the length of a particular shift that is worked, but by reference character of the worker as being a “12 hour worker”.
·   Where employees work different roster arrangements not covered by cl 40, they are no longer a “12 hour worker”, and their entitlements are regulated by the terms of the 2026 Agreement, and the Award, applied on their terms.

AMWU REPLY SUBMISSIONS

According to the AMWU, the questions in this dispute are “materially different” from those answered in the 2022 decision.[24]

· The agreements under dispute are diﬀerent. The roster arrangements of the relevant employees are also diﬀerent. Key to the Commission’s reasoning in the 2022 Decision was the ﬁnding on the ‘default’ provisions (being ordinary hours not exceeding 8 per day, per clause 17.2 of the Manufacturing Award).
· In the 2022 Decision, the ‘default’ position for the Commission is that found under the Manufacturing Award which provides that ‘ordinary hours of work on any day must not exceed 8 hours and are to be worked on Monday to Friday’.

· According to the AMWU, the operative finding of Commission in the 2022 decision was in paragraphs [67] and [68] of that decision which states:

The Manufacturing Award permits Visy to arrange ordinary hours to be worked continuously within the spread of hours, to ﬁx daily hours of work within the spread of hours and the starting and ﬁnishing times of ordinary hours of work, subject to ordinary hours not exceeding 8 hours in any day, and being conﬁned to Monday through Friday, without any agreement...
Where a change in the regular roster or ordinary hours of work involves moving tapered ends employees from the Current Roster to a roster that involves working ordinary hours as contemplated by the default provisions in clause 17.2, no agreement to the change is required...

Visy’s reliance on the decision is misplaced. The 2022 Decision does not have bearing on Visy’s proposed change in the matter here to the extent that the proposal relates to hours in excess of 8 per day.

Visy’s “gloss” on the 2022 Decision that ‘where a change in roster made those mechanisms inapt, the payment terms of the incorporated Award apply’ omits a key factor of the decision which appears to have led the Commission to its conclusion. At [70], the signiﬁcance of the ‘default’ position to the Commission’s ﬁnding is clear:

“The facilitative provisions in clause 17 of the Manufacturing Award are relevant for a departure from the standard award conditions (or as I have earlier described it – the default position). No recourse to any facilitative provision is required to revert from an arrangement implemented under a facilitative provision back to the standard award condition.”

The roster change proposed by Visy here does not involve reverting back to the standard award condition or default position. The change is for shifts in excess of 8 hours per day (above the standard or default position). Given the factual diﬀerences, the present application is not an attempt to re-litigate a dispute which has been resolved previously.

THE 2022 DECISION

Deputy President Gostencnik on clause 40 of the predecessor to the Agreement

The Deputy President undertakes a lengthy exegesis of why clause 40 in the predecessor agreement (which was in the same terms) “merely sets out” a particular roster that “is tailored and confined to a particular species of working arrangement”. He makes a number of points to support this proposition.

[40] First, the opening words to clause 40 of the Agreement which provide that “[t]he following provisions simply sets out the existing 12 hour shift and payment rules applicable to 12 hour workers working in... Tapered Ends...”, suggest that that which is being recorded are the existing arrangements for 12 hour shift work and the existing payment rules which pertain to that work. The words “existing 12 hour shift and payment rules” appear to be a compound phrase so that the word “existing” applies to both the 12 hour shifts and the payment rules. A key phrase in the first sentence of clause 40 is “12 hour workers” working relevantly in tapered ends because it is only to that species of employee (a 12 hour worker) to whom the existing “payment rules” recorded later in clause 40 have application. This all suggests that the 12 hour shift and payment rules described in clause 40 are designed for a particular species of shift arrangement and not to work upon a 12 hour shift per se.
[41] Second, the recording of the arrangement in the Agreement is a carry-over of the arrangements which operated under the 2015 Agreement. Clause 40 of the Agreement, in its application to the working arrangements for which it provides, is inconsistent with the hours of
work provisions in the Manufacturing Award and the overtime provisions. Clause 40 creates a spread of hours which is different to and beyond that for which clause 17.2(b) of the Manufacturing Award provides and creates an overtime entitlement which is greater than that found in clause 32.2 of the Manufacturing Award. These express provisions of the Agreement therefore prevail over the incorporated Manufacturing Award terms to the extent of the inconsistency.
[42] Third, the manner in which payment for ordinary and overtime hours is described in clause 40 of the Agreement, represents an averaging of ordinary time and a spreading of payments for both ordinary and overtime hours across each 12 hour shift worked. The overtime provisions of the Manufacturing Award earlier set out are plainly not applied both in quantum terms and in relation to the hours that would attract overtime under the Manufacturing Award. This may be illustrated by reference to the Previous Roster under which employees worked seven shifts of 12 hours per fortnight. In week one the employees worked four 12 hour shifts with each shift commencing at 7:00am and ending at 7:00pm. In week two the employees worked three 12 hour shifts, again with each shift commencing at 7:00am and ending at 7:00pm. Over the fortnight a total of 84 hours is worked. This results in an average of 42 hours per week.
[44] The Previous Roster was clearly an averaging hours roster over a fortnight. Therefore, if pursuant to clause 27.1(ii) wages are paid fortnightly according to the average number of ordinary hours worked each fortnight the result would be that there are 76 ordinary hours on average worked each fortnight to be paid at ordinary time and eight hours on average of overtime each fortnight paid at overtime rates – at 150% of the ordinary hourly rate for the first three hours and 200% of the ordinary hourly rate for the remaining 5 hours.
[45] The formula (or payment rule) deployed in clause 40 of the Agreement spreads ordinary and overtime payments evenly with a calculation for each 12 hour day or shift. Under the formula over a fortnight, an employee working the Previous Roster would be paid for seven shifts at 10.85 hours each shift at ordinary time (which with rounding is 76 hours per fortnight) and seven shifts at 1.15 hours each shift at overtime (which with rounding is eight hours per fortnight).
[46] However, the formula in clause 40 of the Agreement provides for the same rate of overtime for each hour – double time. In the result, under the formula an employee is effectively paid the equivalent of 16 hours of ordinary time for the eight hours of overtime worked in a fortnight – whereas under the Manufacturing Award (assuming payment under clause 27.1 of the Manufacturing Award was paid fortnightly upon the actual ordinary hours worked each fortnight) an employee would receive in a fortnight payment for overtime hours at the equivalent of 14.5 hours of ordinary time pay (3 hours at 150% of the ordinary rate of pay and five hours at 200% of the ordinary time pay). Fortnightly payments based on the average number of ordinary hours worked each week would yield a lesser result. An average of four hours overtime each week results in the equivalent of 6.5 hours of ordinary time or 13 in a fortnight.
[47] Fourth, although not expressly stated, when read as a whole clause 40 of the Agreement proceeds upon the basis that its operative effect is on the “existing 12 hour shift and payment rules” where 12 hour shift workers are full time employees and all shifts in a roster or work pattern are 12 hour shifts.[The Deputy President then sets out a series of ten dot points each of which notes a “textual indicator]
[48] The preponderance of these provisions are calibrated on the basis that each shift worked in the fortnight is of 12 hours duration and that employees working this arrangement are full time. Taken together, the various provisions of clause 40 of the Agreement point to the fact the a “12 hour shift worker” for the purposes of clause 40 is a full time employee working only 12 hour shifts across a roster period. Moreover, “rostered hours” to which reference is made at various points in clause 40, means rostered for 12 hours on a shift.
[49] That this so is underscored by the exclusion in the second sentence of clause 40 which provides that in relation to “SIG Shift 3 - the current agreed arrangement entered into in October 2014 is set out in Appendix 2”. That appendix makes provision for a “3 X 12 Hour Shift Roster”…
[51] The contrast in the provisions is stark and underscores the kind of shift and rostering arrangement to which clause 40 is directed.
[52] A further matter of context arises from the formula adopted in clause 40 of the Agreement in its application to the Previous Roster compared to the Current Roster. The formula provides for payment of overtime at double time which is then applied to particular hours of a 12 hour shift so as to evenly distribute the overtime payments per shift. Under the Previous Roster, over each fortnight, an employee works eight hours of overtime and is paid the equivalent of 16 hours of ordinary time for the overtime worked – eight hours overtime at double time. Under the Current Roster, an employee works four hours of overtime in each fortnight, which at double time results in a payment of the equivalent of eight hours of ordinary time – four hours overtime at double time. Since under the Current Roster only six 12 hour shifts are worked in the fortnight which attract an overtime payment for the last 1.15 hours of a shift, the employee would be paid the equivalent of 13.8 hours ordinary time for the overtime actually worked. The value of the overtime penalty for each hour of actual overtime worked effectively increases from double time to more than treble time – four hours overtime at 3.45 times the ordinary rate to be precise. No explanation is given how this variable effective overtime penalty is intended by the operation of clause 40. There is no indication in clause 40 that this should be so, or that some ordinary hours of work would be treated as overtime. The only rational explanation is that clause 40 operates only on full time employees working only 12 hour shifts across a roster period.
[53] As should be evident from the discussion above a reading of clause 40 of the Agreement in context and as a whole invariably must lead to the conclusion that it is tailored for and confined to a particular species of working arrangement. And although the phrase “12 hour shift worker” is nowhere defined, read in the context of clause 40, it has an obvious meaning – a full time employee working only 12 hour shifts across a roster period. Under the Previous Roster, an employee working that roster was a 12 hour shift worker within the meaning of clause 40 of the Agreement. Such an employee was a full time employee and all shifts worked in the roster were 12 hour shifts….

In the result, the Deputy President found:
“Under the Current Roster, an employee working that roster, although working a preponderance of 12 hour shifts, is not a 12 hour shift worker within the meaning of clause 40 of the Agreement because one shift each fortnight is an eight hour shift. Clause 40 is designed for and applied to a particular species of working arrangement and the Current Roster is a working arrangement not within that species. It follows that clause 40 has no application to the Current Roster.”

Deputy President Gostencnik on clause 17 of the Metals Award

In the course of answering the question whether Visy was entitled to change the Tapered Ends employee’s roster without their majority agreement the Deputy President examined the facilitative provisions of the Metals Award. The Deputy President analysed those provisions as follows:

“[62] Under clause 17.2 of the Manufacturing Award, ordinary hours of work for day workers (which is apt to describe tapered ends employees), subject to clause 17.5 are an average of 38 per week but not exceeding 152 hours in 28 days. Ordinary hours must not exceed 8 hours per day unless otherwise agreed in accordance with clause 17.5. Clause 17.2(e) provides ordinary hours of work may be worked on any day or all of the days of the week, Monday to Friday and may also be worked on Saturday and Sunday subject to agreement between the employer and the majority of employees concerned. Such agreement may also be reached between the employer and an individual employee.
[63] Thus, the default position under the Manufacturing Award is that ordinary hours of work on any day must not exceed 8 hours and are to be worked on Monday to Friday. The Current Roster contemplates working more than 8 hours of ordinary time on some days, but for the reasons earlier set out, it is an arrangement made in accordance with the incorporated facilitative provisions of the 2015 Agreement, which continues to have force under the Agreement. Clause 17.2(d) of the Manufacturing Award provides for ordinary hours to be worked continuously, except for meal breaks, at the discretion of the employer between 6.00 am and 6.00 pm and provides a mechanism for the spread of hours to be moved up to one hour forward or one hour back. The spread of hours has been altered by the agreement earlier discussed.
[64] Clause 17.2(e) of the Manufacturing Award provides that any change to regular rosters or hours of work is subject to the consultative provisions in “clause 42.2”. The reference to “42.2” appears to be a typographical error which should refer to clause “42” which deals with consultation about changes to regular rosters or hours of work.
[65] Clause 17.5 is concerned with the methods of arranging ordinary working hours for day workers and by clause 17.5(a) provides that:

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 17.2(d) 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. Any change to regular rosters or ordinary hours of work is subject to the consultative provisions in clause 41.2. [Note that reference to “41.2” appears to be a typographical error which should refer to clause “42” which deals with consultation about changes to regular rosters or hours of work.]
[66] Properly construed the reference to “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” must be understood as referring to an arrangement of ordinary working hours other than as they are arranged in the default position set out in clause 17.2. No agreement is necessary to arrange ordinary hours of work as set out in clause 17.2.
[67] Thus, the Manufacturing Award permits Visy to arrange ordinary hours to be worked continuously within the spread of hours, to fix daily hours of work within the spread of hours and the starting and finishing times of ordinary hours of work, subject to ordinary hours not exceeding 8 hours in any day, and being confined to Monday through Friday, without any agreement. Where hours are worked in accordance with a roster, any change to a regular roster can only happen after consultation as required by clause 42. Any change to hours of work must also be the subject of consultation.
[68] Where a change in the regular roster or ordinary hours of work involves moving tapered ends employees from the Current Roster to a roster that involves working ordinary hours as contemplated by the default provisions in clause 17.2, no agreement to the change is required. But consultation under clause 42 must first occur. Any change that involves change to the configuration of ordinary hours of work under the Current Roster that is not the default position must conform with the relevant facilitative provisions found in clause 17. But a change to the Current roster, which does not involve a change to the configuration of ordinary hours worked on each day, but merely to the days on which that work is to be rostered (Monday to Friday) involves only a change to the regular roster and not to ordinary hours of work, and so may be implemented once consultation as required by clause 42 has been undertaken.
[69] As clause 7.1 of the Manufacturing Award notes, the award contains facilitative provisions which allow agreement between an employer and employees on how specific award provisions are to apply at the workplace or a section or sections of it. And that the specific award provisions establish both the standard award condition and the framework within which agreement can be reached as to how the particular provisions should be applied in practice.

In the result, the Deputy President found:

“Thus, the facilitative provisions in clause 17 of the Manufacturing Award are relevant for a departure from the standard award condition (or as I have earlier described it – the default position). No recourse to any facilitative provision is required to revert from an arrangement implemented under a facilitative provision back to the standard award condition.”

CONSIDERATION

The change made by the 5 August roster is a reduction of hours for the affected employees, which results in a reduction “in the rate of payment for overtime from double time to time and a half”.

The question here is whether the Agreement or the incorporated terms of the Metals Award requires majority agreement for the reduction of hours and the consequent change to the roster and the rate of pay.

Relevant interpretative principles

The canons of interpretation of enterprise agreements and Modern Awards are well known. I do not reproduce them here. I adopt the fifteen principles of interpretation for enterprise agreements summarised by the Full Bench in Berri.[25] For the interpretation of Modern Awards, I adopt the principles of interpretation summarised by Rangiah J in Swissport.[26]

Clause 40

The effect of clause 40 was dealt with comprehensively in the 2022 decision. The Deputy President’s analysis on what clause 40 means is set out in paragraphs [39] to [53]. The gravamen of that analysis can be shortly expressed in two paragraphs [40] and [53] in which he states (with emphasis added).

[40] First, the opening words to clause 40 of the Agreement which provide that “[t]he following provisions simply sets out the existing 12 hour shift and payment rules applicable to 12 hour workers working in... Tapered Ends...”, suggest that that which is being recorded are the existing arrangements for 12 hour shift work and the existing payment rules which pertain to that work. The words “existing 12 hour shift and payment rules” appear to be a compound phrase so that the word “existing” applies to both the 12 hour shifts and the payment rules. A key phrase in the first sentence of clause 40 is “12 hour workers” working relevantly in tapered ends because it is only to that species of employee (a 12 hour worker) to whom the existing “payment rules” recorded later in clause 40 have application. This all suggests that the 12 hour shift and payment rules described in clause 40 are designed for a particular species of shift arrangement and not to work upon a 12 hour shift per se.
[53] As should be evident from the discussion above a reading of clause 40 of the Agreement in context and as a whole invariably must lead to the conclusion that it is tailored for and confined to a particular species of working arrangement. And although the phrase “12 hour shift worker” is nowhere defined, read in the context of clause 40, it has an obvious meaning – a full time employee working only 12 hour shifts across a roster period. Under the Previous Roster, an employee working that roster was a 12 hour shift worker within the meaning of clause 40 of the Agreement. Such an employee was a full time employee, and all shifts worked in the roster were 12 hour shifts….

In his decision, the Deputy President described the “species” of 12 hour shift arrangement in Clause 40. It involved 12 hour shift workers who were paid in accordance with the particular terms which included “an averaging hours roster over a fortnight”. The “averaging” is explained in paragraph [45]:

[46] However, the formula in clause 40 of the Agreement provides for the same rate of overtime for each hour – double time. In the result, under the formula an employee is effectively paid the equivalent of 16 hours of ordinary time for the eight hours of overtime worked in a fortnight – whereas under the Manufacturing Award (assuming payment under clause 27.1 of the Manufacturing Award was paid fortnightly upon the actual ordinary hours worked each fortnight) an employee would receive in a fortnight payment for overtime hours at the equivalent of 14.5 hours of ordinary time pay (3 hours at 150% of the ordinary rate of pay and five hours at 200% of the ordinary time pay). Fortnightly payments based on the average number of ordinary hours worked each week would yield a lesser result. An average of four hours overtime each week results in the equivalent of 6.5 hours of ordinary time or 13 in a fortnight.

On the basis of the passage in paragraph [50], the AMWU argues that the “rules”
in Clause 40 apply to “a full time employee working only 12 hour shifts across a roster period”. This decontextualises the analysis of the Deputy President that clause 40 is a legacy provision which was rolled over from one agreement to another to “simply set out the existing 12 hour shift and payment rules applicable”. This is clear from his earlier finding in paragraph [49] that “the 12 hour shift and payment rules described in clause 40 are designed for a particular species of shift arrangement and not work upon a 12 hour shift per se.”

Clause 40 only applies to 12 hour shift workers who are working and paid precisely according to its terms. The affected employees might be working a 12 hour shift which is of the same genus but not the same species, unless they work precisely according to the terms of clause 40.

All the textual indicators referred to by the Deputy President in paragraph [47] and the novel use of the words of clause 40 “simply set out the existing 12 hour shift and payment rules” point to its ephemeral nature. It follows that in so far as the affected workers were no longer working according to “the particular species of shift arrangement” then clause 40 ceased to apply to them.

Late in the hearing it became clear the parties disagreed as to whether the affected employees were being paid according to the rules in Clause 40 before the new roster was implemented. Mr. Fodrocy asserted the following from the Bar table.[27]

MR FODROCY: I want to clarify the point that there was some discussion my friend took you to and sought to clarify that the rules in clause 40 weren’t being paid. As I understand it - and my instructions are post the approval of this current agreement as before you - those employees working those particular shifts, 12-hour shifts, were getting paid according to clause 40, the rules set out there.

Mr. Popple for Visy responded, “They are not my instruction…My instructions are as I put in our submissions”. This unresolved issue of fact is an unsatisfactory state of affairs.

The fact the relevant employees were “paid” according to the clause 40 rules does not constitute a common understanding that the “rules” in clause 40 continued to apply. The text of clause 40 clearly supports an interpretation that it was a point in time provision which “simply set out some of the existing 12-hour shift and payment rules.” Once the employees ceased working precisely according to its terms they no longer applied. It follows I accept and adopt the reasoning of Deputy President Gostencnik in relation to clause 40.

Clause 40 simply sets out a particular kind of arrangement. It only continued to apply where the employees worked precisely according to the hours, roster patterns, payment, and prescriptions within it. In so far as those precise conditions have been departed from, they are no longer “existing site payments and employment conditions” caught by clause 6.7.

It follows the answer to question 2 is “No”.

Facilitative provision in the Metals Award

The express terms of the Agreement do not deal with hours of work. The Agreement incorporates the terms of the Metals Award to the extent of any inconsistency by Clause 6.1.

Clause 7.1(a) of the Metals Award provides “the Award contains facilitative provisions which allow agreement between an employer and employees on how specific award provisions are to apply to the workplace or section or sections of it.” In relation to hours of work, clause 7.3 contains a list of facilitative provisions that facilitate a departure from the standard provisions for hours of work by individual or majority agreement.

Clause number
Provision

17.2(C) Ordinary hours of work for day workers on weekends

17.2(d) Variation to the spread of hours for day workers

17.5 Methods of arranging ordinary working hours

18.1(b) Working in excess of 5 hours without a meal break

27.1(b) Payment of wages

33.2(c) Variation to the spread of hours for shiftworkers

Clause number	Provision
17.2(C)	Ordinary hours of work for day workers on weekends
17.2(d)	Variation to the spread of hours for day workers
17.5	Methods of arranging ordinary working hours
18.1(b)	Working in excess of 5 hours without a meal break
27.1(b)	Payment of wages
33.2(c)	Variation to the spread of hours for shiftworkers

The history of facilitative provisions extends deep into last century where they were adopted as part of the Structural Efficiency Principle.[28] As quoted by Visy in their 2022 submissions, the Full Bench in the 1994 Safety Net Adjustments and Review Decision described the effect of these provisions.

A facilitative provision normally provides that the standard approach in an award provision may be departed from by agreement between an individual employer and an employee or the majority of employees in the enterprise…Where an award clause 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.[29]

Clauses 17.2 to Clause 17.5 of the Hours of Work provisions of the Metals Award are facilitative provisions. They facilitate enterprise level flexibility in the manner in which hours of work can be configured. They provide for a standard or default provision and a capacity to depart from it either by an agreement with individual or a majority of employees. It provides as follows:

· Clause 17.1(b) provides the facilitative provisions in “clause 17.2 to 17.5” are to operate in conjunction with the facilitative provisions in clause 7.

· Clause 17.2(a) provides ordinary hours of work for day workers are an average hours per week but not exceeding 152 hours in 28 days. Visy argues that the post 5 August Roster is a three-week pattern which fits within clause 17.2(a).

· Clause 17.2 (b) requires ordinary hours of work for day workers “will not exceed 8 hours a day unless otherwise agreed in accordance with 17.5”.

· Clause 17.2(c) provides ordinary hours of work may be worked on any day or all of the days of the week, Monday to Friday and may also be worked Saturday or Sunday subject to agreement between the majority of employees or an individual employee.
· Clause 17.2(d) provides ordinary hours of work may be worked continuously …at the discretion of the employer between 6:00 AM and 6:00 PM.

· Clause 17.2(e) provides any change to regular rosters or hours of work is subject to the provisions of clause 42. Clause 42 provides that if an employer proposes to change the regular roster or ordinary hours of work of an employee, then the employer must consult with the effected employees in the manner prescribed by that clause.

· Clause 17.3(b) prescribed that the ordinary hours for continuous shift workers at the discretion of the employer, to average 38 hours per week inclusive of meal breaks and must not exceed 152 hours a week in 28 consecutive days. Clause 17.3(d) prescribes the ordinary hours for continuous shift workers will not exceed eight hours per shift unless majority of employees agree.

· Clause 17.5 (a) provides that subject to the employer’s right to fix daily hours of work for day workers from time to time within the spread of hours referred to in clause 17.2(d) and the employer’s right to fix the commencing and finishing time of shifts from time to time the arrangement of ordinary hours must be by agreement between the employer and the and the majority of employees in the enterprise [or relevant part]. Clause 17.5 (b) prescribes the matters on which agreement must be reached.

Clause 17.2(d) requires.

(d)       The ordinary hours of work are to be worked continuously, except for meal breaks, at      the discretion of the employer between 6.00 am and 6.00 pm. The spread of hours (6.00          am to 6.00 pm) may be moved up to one hour forward or one hour back by agreement between an employer and:
(i)        the majority of employees at the workplace;
(ii)       the majority of employees in a discrete section of the workplace; or
(iii)      an individual employee.

Different agreements may be reached with the majority of employees in different sections of the workplace or with different individual employees.

Clause 17.5(c) provides that 12 hour shifts may be introduced by agreement between an employee and the majority of employees in the enterprise or part of the enterprise concerned subject to a number of matters includes proper health monitoring, suitable roster arrangements being made.

It is not contested the affected employees have worked variations of 12 hour shifts for some time. They have long departed from working purely eight hour shifts. Clause 40 “simply sets out” rules for working a particular kind of 12 hour shifts. Clause 40 in the current Agreement is a carryover from the 2019 Agreement which was itself was a “carry over” from the 2015 Agreement. 12 hour shifts were “introduced” some time ago.[30]

Visy makes the point the relevant employees under the new roster work an average of 38 hours per week in every 21 day period. As it is less than 28 days, it falls within the default arrangements under clause 17.2(a) and 17.4(b). The AMWU argues clause 17 provides the only method Visy can implement shifts beyond 8 hours is by agreement of the majority of employees. It argues that as the new roster involves shifts longer than 8 hours, majority agreement is required.

The default provisions prescribe both a span of hours where an average of a 38 hour week can be worked: clause 17.2(a) in relation to day workers, and 17.4(b) which deals with non-continuous shift workers. Work within those spans could include days or shifts that may extend beyond eight hours. There are other provisions which prescribe that ordinary hours will not exceed eight hours: clause 17.2(b) applies to day workers and clause 17.3(c) applies to continuous shift workers.

The only part of clause 17 which expressly deals with 12 hour shifts is clause 17.5 (c). The first principle for construction of Awards listed by Rangiah J in Swissport is that “the canons of construction found in the Acts Interpretations Act 1901 (AIA) apply to Awards”.[31]

Under s 13.1(d) of the AIA is to the effect that headings are “part of the Act” and can be used to interpret the text within it. It follows headings can be used to interpret the text of an Award. The heading to clause 17.5. is “various methods of arranging ordinary working hours”. The structure of the sub clause 17.5 is to provide for two such methods:

Clause 17.5(a) and (b): A method for arranging ordinary hours for day workers which is subject to the employer’s right to fix daily hours of work within the spread of hours prescribed for day workers by 17.2(d) and to fix starting and finishing times. Subject to the right of the employer to fix daily hours of work, this method requires the arrangement of ordinary work hours must be by majority agreement; and
Clause 17.5(c), which is headed “twelve hour days and shifts.” It provides that on the introduction of 12 hour shifts the agreement of the majority of employees is required. The plain English meaning of the words “be introduced” in this context must mean “begin.” A twelve hour shift can only be introduced once. A variation to an existing 12 hour shift arrangement does not “introduce” a 12 hour shift.

There is an ambiguity in clause 17 as it provides both for an average of a 38 hour week over a span of hours (which may accommodate shifts or hours greater than eight hours) as well as for prescribing a limit of eight hour days or shifts.

The structure of clause 17.5 suggests a separation between workers who work 12 hour shifts and day workers who do not work 12 hour shifts. The method for arranging ordinary hours of work for day workers is separate from the method of arranging the introduction of 12 hour shifts. This separation is consistent with the standard provision for ordinary hours for day workers in clause 17.2(b), being separate from the relevant standard provision for 12 hour day or shift workers (once they has been introduced) in clause 17.2(a), that is, an average of 38 hours a week but not exceeding 152 hours every 28 days.

The drafter of these facilitative provisions sought to deal with 12 hour shifts separately and to limit the facilitation to the introduction of twelve hour shifts. The variation of regular shifts and hours of work once 12 hour shifts are introduced are not dealt with expressly in the facilitative provisions.

The principles for the construction of Awards include a principle that a provision can derive meaning from its “context” which includes the origin of a particular clause.[32] The origin of facilitative provisions is the structural efficiency principle designed to establish the standard award condition and the framework within which an agreement can be reached as to how a particular clause applies. Agreement is required where the standard provisions are “departed from”.

The structure of clause 17 suggests a different standard applies to circumstances where a 12 hour shift has been introduced compared to other circumstances. The standard approach for a 12 hour shift is for it to comply with the spread of hours in clause 17.2(a). The requirement to work no longer than an eight hour day at the Coburg plant has been departed from through agreement reached in enterprise bargaining some time ago.

The relevant default position against which a 12 hour shift must be measured in the spread of hours is clause 17.2(a). The separation of day work, continuous and non-continuous shifts and twelve hour days in clause 17 supports an interpretation that a variation to a twelve hour shift roster is not measured against a requirement for an eight hour day in clause 17.2(b) which applies to “day workers” who do not work a twelve hour shift, but according to the span of hours in clause 17.2(a).

2022 decision

The AMWU relies on statements made in paragraphs [67], [68] and [70] that a “key factor” in the decision of Gostencnik DP was the significance of the default provisions in clause 17 of the Metals Award. The AMWU seeks to differentiate the effect of that decision from the current dispute because “the change in shift is in excess of 8 hours per day”. At paragraph [70], the Deputy President states:

“The facilitative provisions in clause 17 of the Manufacturing Award are relevant for a departure from the standard award condition… No recourse to any facilitative provision is required to revert from an arrangement implemented under a facilitative provision back to the standard award provision.”

In the dispute that led to the 2022 decision, each of the Tapered Ends line employees had agreed to reduce their hours and work a combination of 12 hour days and an 8 hour day. There was subsequently a dispute as to the rate of pay to be applied to the new shift arrangement.[33] Visy agreed to continue paying according to the clause 40 but maintained that this was an error. Mr. Tomevski, who worked on the Tapered Ends Line, was employed after the employees agreed to the shift change. He worked according to a roster pattern of 6 shifts of 12 hours and one shift of 8 hours each fortnight. The roster arrangements of both included working beyond 8 hours in some shifts. The reason for the reduction in hours was, as here, was “a reduction in market demand for the steel products it produces on site.”

The Deputy President found the facilitative provisions were not activated. The relevant part of the decision is the following:

[66] Properly construed the reference to “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” must be understood as referring to an arrangement of ordinary working hours other than as they are arranged in the default position set out in clause 17.2. No agreement is necessary to arrange ordinary hours of work as set out in clause 17.2.

[67] Thus, the Manufacturing Award permits Visy to arrange ordinary hours to be worked continuously within the spread of hours, to fix daily hours of work within the spread of hours and the starting and finishing times of ordinary hours of work, subject to ordinary hours not exceeding 8 hours in any day, and being confined to Monday through Friday, without any agreement. Where hours are worked in accordance with a roster, any change to a regular roster can only happen after consultation as required by clause 42. Any change to hours of work must also be the subject of consultation.
[68] Where a change in the regular roster or ordinary hours of work involves moving tapered ends employees from the Current Roster to a roster that involves working ordinary hours as contemplated by the default provisions in clause 17.2, no agreement to the change is required. But consultation under clause 42 must first occur. Any change that involves change to the configuration of ordinary hours of work under the Current Roster that is not the default position must conform with the relevant facilitative provisions found in clause 17. But a change to the Current roster, which does not involve a change to the configuration of ordinary hours worked on each day, but merely to the days on which that work is to be rostered (Monday to Friday) involves only a change to the regular roster and not to ordinary hours of work, and so may be implemented once consultation as required by clause 42 has been undertaken.
[69] As clause 7.1 of the Manufacturing Award notes, the award contains facilitative provisions which allow agreement between an employer and employees on how specific award provisions are to apply at the workplace or a section or sections of it. And that the specific award provisions establish both the standard award condition and the framework within which agreement can be reached as to how the particular provisions should be applied in practice.
[70] Thus, the facilitative provisions in clause 17 of the Manufacturing Award are relevant for a departure from the standard award condition (or as I have earlier described it – the default position). No recourse to any facilitative provision is required to revert from an arrangement implemented under a facilitative provision back to the standard award condition.

I agree with the Deputy President that “moving employees from a current roster to a roster that involves ordinary working hours as contemplated by clause 17.2, no agreement is required.” I disagree with his analysis that the “standard award condition” under 17.2 where Visy varies a roster that includes a 12 hour day includes the requirement in clause 17.2(b) that ordinary hours for day worker shall not exceed 8 hours.

On my construction of clause 17, once a twelve hour shift has been introduced, the standard award conditions to which Visy must comply is clause 17.2(a) and not 17.2(b). The separation in clause 17.5 of the “methods or arranging ordinary working hours” for day workers in clauses 17.5(a) and (b) and employees where twelve hour days or shifts are introduced in clause 17.5(c) supports this argument. I therefore consider Visy did not depart from the “standard award provision” by the implementation of the 5 August Roster which is within the standard position within clause 17.2(a).

It would not be consistent with the text of clause 17 which preserves the right of an employer to fix daily hours of work and starting and finishing times of shifts if, once 12 hour days are introduced, every change of hours which continued 12 hour shifts, even a reduction in hours, would require majority agreement.

The facilitation for twelve hour shifts within clause 17.5 is limited to the introduction of 12 hour days provided that the standard position in clause 17.2(a) is complied with. If the drafters of the Metals Award wished for facilitation to be required for any variation following the introduction of 12 hour days or shifts, it would have been reflected in the text of clause 17.

Furthermore, facilitative provisions such as those contained in clause 17 were developed as means of introducing flexibility in the manner in which ordinary hours and commencing and finishing times were implemented. An interpretation of clause 17 in which any variation to 12 hour days must be subject to majority agreement is not consistent with that history and context.

Right of Visy to fix the hours of work under clause 17

There are textual indicators in clause 17 that the Metals Award provides a discretion to the employer to fix ordinary hours and “regular rosters” (with some limitations) without the need for majority agreement:

·   Clause 17.2(d) for day workers ordinary hours of work are to be worked continuously except for meal breaks, at the discretion of the employer between 6:00 AM to 6:00 PM.
·   Clause 17.3(d) for continuous shift workers the ordinary hours of work are, at the discretion of the employer, to average 38 hours per work inclusive of meal breaks and must not exceed 152 hours in 28 consecutive days. Provided that ordinary hours do not exceed 8 per shift unless otherwise agreed by a majority of employees.
·   Clause 17.5(a) the method of arranging ordinary hours by agreement is subject to the employer’s right to fix the daily hours for day workers and the employers right to fix starting and finishing times.
·   Clause 17.2(e) and Clause 42: The requirement for consultation over changes to regular rosters or hours of work is predicated on the ability of the employer to make some changes without the requirement of majority agreement.

There are authorities which confirm that under the Metals Award (or its analogue) an employer can vary hours of work without the necessity for a majority agreement under the textual equivalent of clause 17 of the Metals Award.

Custom Coaches[34]

Custom Coaches involved a dispute about the employer’s right to change hours of work under an enterprise agreement which did not set starting and finishing times within its terms but incorporated the Vehicle Manufacturing Repair Services and Retail Award 2010 (“the RSR Award”). Hours of work were regulated by clause 53 of the RSR Award which is equivalent to clause 17 of the Metals Award.

The question for arbitration was:

“Do the provisions of the [RSR Award] …require that agreement be reached with a majority of …employees as a prerequisite to change ordinary hours within the spread of hours in clause 53.”

Deputy President O’Callaghan relevantly found (with emphasis added):

[21] the plain words of the [RSR Award] make it clear that Custom Coaches has the “right to fix the daily hours of work…from time to time within the spread of hours.”
[22] The change proposed by Custom Coaches is within the spread of hours specified in clause 53.1(c) of the [RSR Award]. It is only when a change proposed requires employees to work ordinary hours outside of the authorised spread of hours, or where hours exceed 10 on any day that the need for a majority employee agreement is required.

Coates Hire[35]

Coates Hire is a decision of Commissioner Hunt. It involved a dispute whether an employer was entitled to change the hours of work of employees under an enterprise agreement that did not regulate hours in its text. The agreement did incorporate the Metals Award but expressly excluded “facilitative provisions and flexibility terms in the Award”. At the time of the decision the equivalent of clause 17 was found in clause 36. In her decision, she found (with emphasis added):

[51]As a matter of clarity, however, if I had been satisfied clause 36.9 of the Agreement did not render impotent clause 36.5(a) of the Award, I would have determined that it is clear and unambiguous that clause 36.5(a) is submissive to clause 36.2(c). From the opening of clause 36.5(a), it sets out exactly the rights an employer has pursuant to clause 36.2(c). With respect to day workers, it details the right of an employer in clause 36.2(c) – that is, to fix the daily hours of work from time to time within the hours of 6.00am to 6.00pm.
[52]I do not agree with the AMWU’s contention that 36.2(c) is limited to the quantum of hours. I have had regard for the decision in Custom Coaches, and I respectfully agree with O’Callaghan SDP that the identical wording in the Vehicle Award provides an employer with a right to set and change at its discretion (following consultation) the starting and finishing time of day workers.

These cases are consistent with a construction of clause 17 which the employer retains the right to change regular rosters and ordinary hours of work without the need for majority agreement.

Therefore, on my construction of clause 17:

Visy retains the right to change regular rosters or ordinary hours of work once a 12 hour day or shift is introduced without majority agreement with some limitations.

The introduction of 12 hour days or shifts are regulated on their introduction by clause 17.5(c). There is a bifurcation in clause 17.5 between the method of arranging ordinary hours for day workers simpliciter and those required for the introduction of 12 hour days.

The more limited facilitation means, once a 12 hour shift has been introduced, the standard condition for working hours against which the change is measured does not include a requirement the employees’ days or shifts do not exceed an 8 hour day under clause 17.2(b).

The default or standard position against which a change in hours involving 12 hour days is to be measured (once 12 hour days are introduced) under clause 17.2 is the span of hours under clause 17.2(a). The change in hours brought about by the 5 August Roster meets this standard.

It follows facilitation by way of a majority vote of affected employees is not necessary to effect the change in a regular roster which includes a 12 hour day as long as it complies with clause 17.2(a).

Clause 42 and the requirement to consult

Under clause 42, Visy was required to consult with affected employees and their representatives where there is a change to the regular roster or ordinary hours of work of any employee.

No direct evidence was provided on the consultation that was undertaken before the 5 August roster took effect, however, Visy in its Form 1 response to AMWU’s Form 10 submitted that “it has more than satisfied the consultation requirements set out in this agreement”.[36] Visy filed documents in support of that proposition:
· A power point presentation which describes both the drop in demand and the steps Visy intended to take;[37] and
· A table headed “consultation on shift change due to volume drop 2024”.[38] Apparently, from March 2024,[39] multiple meetings were held by the site consultative committee and the “volume drop Group consultative team”, group presentations were made with “departments”, letters were sent to individuals regarding the shift change and one on one meetings where had with employees to discuss “personal concerns and possible solutions”.
It would be surprising if the terms of clause 42 had not been complied with.

For these reasons, I do not consider the terms of the Agreement, including the incorporated terms of the Metals Award, prevent Visy from changing the roster applicable to workers working in the SIG, Tapered Ends or Full Panel areas without majority agreement.

Nor do I consider the terms of the Agreement prevent Visy from making the change to the roster brought about by the 5 August Roster without majority agreement.

For these reasons, I consider the answer to both question 1 and the Visy Question is “No”.

DISPOSITION

I therefore answer the questions in this arbitration as follows.

Question One
Does the Agreement prevent Visy from changing the roster applicable to employees working in the SIG, Tapered Ends and Full Panel areas (Employees) without majority agreement?
No, subject to Visy meeting the requirements of clause 17.2(a) and clause 42 of the Metals Award.
Question Two
Do the shift and payment rules in cl 40 of the Agreement continue to apply to the Employees if the Respondent changes their roster?
No.

Visy Question
Do the particular shift changes introduced by Visy on 5 August require the agreement of a majority of affected employees?
No.

The dispute is therefore determined accordingly.

COMMISSIONER

Appearances:

Mr. Stephen Fodrocy on behalf of the Applicant.
Mr. Brad Popple on behalf of the Respondent.

Hearing details:

10 February 2025
Melbourne

[1] Digital Court Book (DCB at) at page 72 which contains the 17 January 2025 statement of Mr. Andrew Mynard which was not contested in the proceeding. The details of the areas of the plant and the number of employees are at paragraph 8 of his Statement.

[2] DCB at 45-51 contains a power point presentation about the proposed changes and a two-page table of consultation with various committees and groups of workers (at pp. 50-51).

[3] DCB at 141. The AMWU’s reply submissions at paragraph 18.

[4] Digital Court Book at 64. Visy’s Outline of Submissions.

[5] Ibid.

[6] DCB at 47 – “Food Can Volume” slide from presentations given to employees.

[7] Ibid.

[8] DCB at 48.

[9] DCB at 71 to 73.

[10] DCB at 64-65. Visy’s Outline of submissions at paragraphs 9 and 10.

[11] DCB at 139. The AMWU’s Reply Submissions at paragraph 8

[12] DCB at 56-79. The AMWU’s Outline of Submissions contain its arguments in relation to Question 1.

[13] Ibid paragraph 23.

[14] DCB at 58-59, AMWU submissions on Question 2.

[15] [2022] FWC 1800.

[16] DCB at 65 to 68, paragraphs 11 to 21 in Visy’s Outline of Submissions.

[17] Ibid.

[18] Ibid 66.

[19] DCB at 66 at paragraph 15.

[20] DCB at 68-70.

[21] DCB at 121-123: The Digital Court Book in the 2022 proceeding was an attachment to the Mynard Statement.

[22] DCB at 69-70

[23] DCB at 133-135.

[24] DCB at 139 to 141

[25] AMWU v Berri Pty Ltd[2017] FWCFB 3005 at paragraph [114].

[26] Swissport Australia Pty Ltd v. Australian Administrative Clerical and Services Union (No 2) (2019) 284 IR 97 at paragraph 52.

[27] PN 409.

[28] Introduced by the Australian Industrial Relations Commission in the August 1988 National Wage Case [Dec640/88 Print H4000] to promote flexibility in the workplace.

[29] DCB at 125 from the Hospitality decision Dec 1634/94 Print L 5300.

[30] See the 2022 decision at page 41.

[31] Swissport [2019] FCA 37. “Principles of construction of Awards” paragraph 52, Principle (1).

[32] Ibid Principle (6).

[33]2022 Agreement, paragraphs [12] and [17].

[34] AMWU v Custom Coaches Pty Ltd[2014] FWC 3255, a decision of Deputy President O’Callaghan.

[35] Coates Hire v AMWU[2017] FWC 1009, a decision of Commissioner Hunt.

[36] DCB at 43.

[37] DCB at 45-49.

[38] DCB at 50-1.

[39] The first entry on the table seems to be styled in the American manner with a date represented as “3/21/2024”.

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