Boral Window Systems Ltd v Construction, Forestry, Mining and Energy Union
[2010] FWA 9688
•20 DECEMBER 2010
[2010] FWA 9688 |
|
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Boral Window Systems Ltd
v
Construction, Forestry, Mining and Energy Union
(C2010/5483)
SENIOR DEPUTY PRESIDENT O’CALLAGHAN | ADELAIDE, 20 DECEMBER 2010 |
Alleged dispute about any matters arising under the enterprise agreement and the NES; [s186(6)].
[1] On 9 November 2010 Boral Window Systems Limited (Boral) lodged an application pursuant to section 739 of the Fair Work Act 2009 (the Act) for assistance in the resolution of the dispute over the application of the Boral Window Systems Limited (Elizabeth) Agreement 2010 (the agreement).
[2] The application was the subject of an extensive conciliation conference with me on 22 November 2010. At this conference the Construction, Forestry, Mining and Energy Union - Forestry and Furnishing Products Division (CFMEU) represented its members, employees of Boral. Whilst this conference identified a range of issues about which the parties agreed they should discuss further, it did not resolve the essential issue in dispute. On 29 November 2010 Boral advised that those subsequent discussions had not resolved the dispute and sought that the matter be arbitrated. At a further conference on 1 December 2010 both Boral and the CFMEU confirmed an arbitration was appropriate.
[3] The matter was the subject of a hearing on 10 December 2010. Mr Chadwick, of counsel represented Boral and Ms Read appeared for the CFMEU.
[4] The agreement was approved on 28 September 2010. The dispute resolution clause provides that a dispute which is not resolved at the workplace level may be referred to Fair Work Australia. Clause 7.5 of the agreement states:
“7.5 Fair Work Australia may deal with the dispute in 2 stages:
(a) Fair Work Australia will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
(b) if Fair Work Australia is unable to resolve the dispute at the first stage, Fair Work Australia may then;
(i) arbitrate
(ii) make a determination that is binding on the parties.
Note If Fair Work Australia arbitrates the dispute, it may also use the powers that are available to it under the Act. A decision that Fair Work Australia makes when arbitrating a dispute is a decision for the purpose of Div 3 of Part 5.1 of the Act. Therefore, an appeal may be made against the decision.”
[5] I am satisfied that the agreement falls within section 738(b) and that therefore I can deal with the dispute under section 739 of the Act.
[6] The clause in dispute is clause 21 which I have set out in full below:
“21. EMPLOYEE WELFARE
21.1 The management of employees’ health and safety, in particular during excessive hot periods, is to be monitored by the Safety Committee and the Management are to make recommendations or initiate relative remedies to minimise the effect of such conditions.
21.2 In the event of the temperature inside the factory exceeding 35 degrees there will be an additional 10 minute work break in a cooled area between the existing breaks.
21.3 Where the factory has an air conditioning system installed and it is being used and the temperature as measured inside the factory reaches 36 degrees, training if available, will be provided in an air conditioned environment. Where training is not available employees may cease work and have the remainder of the ordinary hours paid at their ordinary time rate (refer Appendix A).
21.4 Temperature measurements will be taken between two and six points under the main roof with additional measurements being taken in other operational production buildings. The positions will be agreed with the Safety Committee. The positions will be nominally close to the working areas at approximately 1.5m from the ground. The temperature shall be deemed to be over 36 degrees if in any working area the temperature reading is 36 degrees or more and the air conditioning has been running for a minimum of 30 minutes. Employees working in any building where the temperature reaches 36 degrees may be relocated to other appropriate work in buildings that are below 36 degrees. In the event that no work or building is available below 36 degrees, management and employees agree to utilise the remaining work time for training where appropriate. Training would be carried out in a chosen air conditioned area.
21.5 In circumstances where clause 21.3 does not apply, that is where an air conditioning system has not been installed, and the temperature as measured by the Bureau of Meteorology at Edinburgh Air Base reaches and remains at 38 degrees over two consecutive readings, the factory will close for the day. In these circumstances, management and employees agree to utilise the remaining work time for training where appropriate. Training would be carried out in a chosen air conditioned area.
21.6 Where training is not available employees may cease work and have the remainder of the ordinary hours paid at their ordinary time rate and will recommence work at the beginning of the next shift.
21.7 The Company will use the temperature as measured in clause 21.5 where an employee’s normal duties are performed outside the factory, as defined in the Skills Matrix. Where the outside temperature as measured reaches 38 degrees, the employee will be provided duties in cooled areas of the factory. Short periods of intermittent work outside may be necessary (e.g. - walking from building to building, moving stock from building to building.)
21.8 A once off net payment of $500.00 will be made to each employee whose employment is covered by the terms of this Agreement to recognise the changes being made to this clause. Payment will be made in the pay cycle immediately following undisputed lodgement of the Agreement with Fair Work Australia. In addition a further 0.5% of the base pay rate will be added from the same time.
21.9 During the summer of 2010-2011 the EBA bargaining Committee shall conduct a recorded trial of the use of an internal temperature measurement as described in 21.4. The trial shall involve the recording of external and internal temperatures as defined in 21.4 and 21.5 while the air-conditioning is operating. The trial will establish the relationship between internal and external temperatures when the external temperatures are greater than 35 deg C. The bargaining Committee will be involved in all aspects of the trial. Following a minimum of 4 days over 38 Deg C the trial shall be evaluated. The trial will be deemed to be unsuccessful if, when temperatures externally reach 38 Deg C, the internal temperature is not kept below 36 Deg C. In the event of an unsuccessful trial the heat stress policy will revert to that contained in the 2007 EBA.
21.10 During the initial commissioning of the evaporative air conditioners, production teams will be consulted as to the optimised set up of the units (e.g. — direction of unit, angle of adjustable vanes, speed of fan etc).
21.11 During the evaluation period the need for additional cooling units will be reviewed by the Safety Committee with the intent of eliminating any unacceptable hot area/zones.
21.12 In the event that the cooling units are not working (greater than 25% not able to run as evaporative coolers) clauses 21.5 and 21.6 will apply.”
[7] Whilst Boral and the CFMEU have indicated that the potential exists for continuing disagreements over the operation of the trial referenced in clause 21.9 and the process of testing temperatures, both parties agree that the fundamental issue goes to the extent to which the traditional working arrangements at the factory prior to this agreement being implemented, continue to apply pending the successful completion of the trial which is referenced in clause 21.9. It is this matter alone that is the subject of this arbitration.
[8] The starting point of the background to the matter in dispute is the predecessor, 2007 agreement which relevantly provided:
“24. EMPLOYEE WELFARE
(a) The management of employees’ health and safety, in particular during excessive hot periods, is to be monitored by the Safety Committee and the Management are to make recommendations or initiate relative remedies to minimise the effect of such conditions.
(b) In the event of an employee who is not feeling well, they are allowed a 10 minute paid break in a cool area before returning to work with the option of clocking off if they are unable to continue. Such leave may be taken as sick leave or other accrued leave.
(c) It has been agreed that when the temperature as measured by the Bureau of Meteorology at Edinburgh Air Base reaches and remains at 38 degrees over two consecutive readings, the factory will close for the day. The management and employees agree to utilise the remaining work time for training where appropriate. Training would be carried out in a chosen air-conditioned area.
(d) If training is not available or appropriate, employees will be allowed to go home on full pay and recommence work at the beginning of the next shift.”
[9] Negotiations for the 2010 agreement were difficult and protracted. The arrangements to apply to work in hot weather was the major matter in dispute and was, at one stage, the subject of a recommendation made by Hampton C 1.
[10] The Boral position is that the agreement provides for a one off payment which has been made and that clause 21 is clear in establishing working arrangements in hot weather that replaced those provided for under the 2007 agreement. Boral advised that it has installed air conditioning in the plant and that accordingly, clause 21.9 provides that reversion to the 2007 arrangements will only occur if the trial of the air conditioning system fails. Boral asserted there is no ambiguity in the clause with respect to this issue and that any other construction of these provisions would be illogical.
[11] The Boral Plant General Manager, Mr Peacock, gave evidence about the history of hot weather working arrangements, the negotiation process and steps taken by Boral to implement air conditioning.
[12] The CFMEU position was that the clause is ambiguous and that employees almost universally believed that the 2007 arrangements would continue to apply until the trial was proven to be successful.
[13] The State Secretary of the CFMEU Forestry and Furnishing Products Division, Mr Kirner gave evidence about the negotiation process and his understanding of the operation of clause 21 of the agreement. Mr Kirner asserted that employees had been advised that the 2007 agreement approach would continue pending the outcome of the trial.
[14] Additionally, Boral employees Mr Campbell, Mr Lawson and Mr Burns all gave evidence about the negotiation of the agreement with particular reference to clause 21, and the extent to which they, and other employees, understood that successful completion of the trial was a prerequisite of the cessation of the long standing arrangement whereby the temperature at the Bureau of Meteorology Edinburgh Air Base reached, and remained at 38° over two consecutive readings, the factory would close for the day. The employees acknowledged changes made to the hot weather provisions, but asserted that a reduction of the one off payment in the course of the negotiations reflected the retention of the 2007 arrangements pending the trial.
Findings
[15] The CFMEU evidence could be construed as an argument that the approval of the agreement was inappropriate in all the circumstances. As a consequence, I sought clarification of this issue from the CFMEU who advised that this was not being argued.
[16] Simply put, the issue in dispute goes firstly to how clause 21 should be interpreted, and, if necessary, to the weight that should be attached to the consistent views of the employees.
[17] In NUW v GrainCorp Operations Limited 2 Ives DP succinctly summarised the approach adopted by the Court and the former Australian Industrial Relations Commission to the interpretation of awards and agreements. Notwithstanding that this decision was made under section 170LW of the Workplace Relations Act 1996, I have adopted this approach on the basis that the principles applied by those tribunals remain relevant to agreements reached under the Act today.
[18] Ives DP states:
“[46] A number of general principles relating to the interpretation of industrial instruments have been established by cases in the past. While an award or agreement should be interpreted in the same manner as a court or tribunal would interpret legislation or another document, it must be borne in mind that often industrial instruments are framed and drafted by laypersons who are not aware of all the legal niceties that may have been developed by the courts.
[47] Among the general principles to be followed in the interpretation of awards and certified agreements are these:
(a) if the terms of an industrial instrument are clear and unambiguous, then the industrial instrument must be interpreted in accordance with that clear and unambiguous meaning (Re Clothing Trades Award (1950) 68 CAR 597);
(b) the words used in an industrial instrument should not be interpreted in a strict, technical fashion, because those who framed the industrial instrument are often non-lawyers drafting words in the context of custom and practice in an industry or particular enterprise (Bond & Co Ltd (in liquidation) v McKenzie (1929) 28 AR 499; Hancock SDP in PTC of Victoria v ARTBIU, above);
(c) each clause should be interpreted within its context, that is, the meaning of particular words should be read in the context of the industrial instrument as a whole (Australian Workers’ Union v Abbey (1939) 40 CAR 494) and in the context of the clause/section in which it falls (Avondale Motors (Parts) Pty Ltd v Federal Commissioner of Taxation (1971) 45 ALJR 280 at 283);
(d) the court or tribunal should strive to give effect to the intention of the authority which made the award (or, presumably, in the case of an agreement, the intent of the parties to the agreement), provided that the words appearing in the instrument can reasonably be interpreted to mean that which the authority/parties intended them to mean (Australian Timber Workers’ Union v W Angliss and Co Pty Ltd (1924) 19 CAR 172;
(e) the court or tribunal’s recourse to extrinsic material in the interpretation of industrial instruments is not dependant upon the existence of ambiguity in the industrial instrument (Australian Municipal, Administrative, Clerical & Services Union v Treasurer of the Commonwealth of Australia (1998) 82 FCR 175; 80 IR 345);”
[19] I have reviewed clause 21 in this context.
[20] Clause 21.1 establishes the role of the safety committee and management with respect to hot weather work.
[21] Clause 21.2 provides for an additional 10 minute break between existing work breaks in a cooled area, when the temperature in the factory exceeds 35°.
[22] Clause 21.3 provides that where air conditioning is installed, but the temperature in the factory reaches 36°, training in an air-conditioned area will be provided or, if this is not available, employees would cease work but be paid for the remainder of the day.
[23] Clause 21.4 establishes arrangements for the recording and monitoring of temperatures inside the factory, and working arrangements where certain areas of the factory exceed 36°.
[24] Sub-clauses 21.5 and 21.6 largely reflect the 2007 agreement arrangement. They are prefaced so as to apply where air conditioning has not been installed. In that instance, where the temperature measured by the Bureau of Meteorology at the Edinburgh Air Base reaches, and remains at 38° over two consecutive readings, the factory will close, and employees will be provided with training in an air-conditioned area. Where training is not available, employees would not be required to work but would be paid for the remainder of that day’s ordinary working hours.
[25] Clause 21.7 deals with situations where employees are required to work outside of the factory in hot weather.
[26] Clause 21.8 provides for a net one off payment of $500 to each employee together with 0.5% of the base pay rate to be made to each employee to recognise the changes made to this clause.
[27] Clause 21.9 deals with the trial of the air conditioning system effectiveness. It sets out the arrangements for this trial and the role of the Enterprise Bargaining Agreement Bargaining Committee with respect to it. This sub-clause concludes on the basis that, if the trial is not successful, the 2007 agreement arrangement will resume.
[28] Clause 21.10 requires consultation with production teams relative to the setting up of the air conditioning system.
[29] Clause 21.11 refers to an evaluation process which, because of the specific provisions of clause 21.9, I have taken to be a period prior to the trial. During this evaluation period the safety committee is required to review the need for additional cooling units to eliminate any unacceptable hot areas or zones.
[30] Finally, sub-clause 21.12 provides that, independently of the trial outcome, if the air conditioning system is not operating, sub-clauses 21.5 and 21.6 will apply.
[31] I can only construe these provisions as plain and, with respect to the working arrangements that apply from the commencement of the agreement, unambiguous. They provide arrangements for air conditioning installation and working arrangements from the inception of the agreement. They provide a payment to recognise the changes to traditional working arrangements.
[32] They provide for the previous hot weather arrangement to be resumed only if:
- a factory does not have air conditioning installed (clause 21.5), or
- the air conditioning system is not working (clause 21.12), or
- the installed air conditioning system fails the trial (clause 21.9).
[33] No other construction of the clause makes logical sense.
[34] Notwithstanding this conclusion, I have considered the extent to which, on the evidence before me, a substantial majority of Boral employees covered by the agreement understood that the 2007 arrangement would continue, pending successful completion of the trial.
[35] Bluntly, this view is misguided and its existence cannot override the clear words in the agreement. The Boral employees endorsed this agreement proposal and they cannot now rewrite it simply because their understanding of the plain words is misfounded. To do so, would allow parties to an agreement to apply it in a way in which they wished, rather than complying with the actual agreement provisions.
[36] Accordingly, I consider that the Boral employees must now accept that the 2007 hot weather arrangements will no longer apply as Boral has installed air conditioning systems. The 2007 arrangements will only take effect if the air conditioning system is either not working or has failed the trial. Otherwise, clause 21.3, 21.4 and clause 21.7 will apply.
[37] Whilst the dispute resolution provisions of the agreement refer to the potential for Fair Work Australia to make a determination, I do not believe this is appropriate at this time given the decision I have reached. However, leave is reserved to Boral to seek such a determination should this be necessary.
[38] Finally, clause 21.9 deals with the conduct of an assessment of the trial. It seems to me that it is appropriate that these arrangements are implemented as soon as possible, to ensure that an environment where employees can work in relative comfort in hot weather is confirmed.
SENIOR DEPUTY PRESIDENT
Appearances:
N Chadwick counsel for Boral Window Systems Ltd.
R Read for the Construction, Forestry, Mining and Energy Union FFPD.
Hearing details:
2010.
Adelaide:
December 10.
1 FWA File B2010/2693
2 PR918161
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