Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - New South Wales Divisional Branch v BlueScope Steel..
[2015] FWCFB 1798
•27 MARCH 2015
| [2015] FWCFB 1798 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
BlueScope Steel (AIS) Port Kembla
(C2015/293)
SENIOR DEPUTY PRESIDENT HAMBERGER | SYDNEY, 27 MARCH 2015 |
Appeal against decision [2015] FWC 710 of Commissioner Riordan at Sydney on 30 January 2015 in matter number C2014/5994, C2014/1556 & C2014/1528.
[1] The Australian Workers’ Union, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) - New South Wales Branch and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - New South Wales Divisional Branch (the unions) have sought permission to appeal a decision by Commissioner Riordan made on 30 January 2015. 1 The decision concerned the proposed introduction of 12 hour shifts in the Platemill operated by BlueScope Steel (AIS) Port Kembla (BlueScope).
[2] The application for permission to appeal was heard in Sydney on Monday 9 March 2015. The unions were represented by Mr A Howell, of counsel and BlueScope by Mr J Darams, of counsel. At the conclusion of the hearing the Full Bench granted permission to appeal, allowed the appeal and quashed the Commissioner’s decision. An order was issued to that effect 2. These are the reasons for the Full Bench’s decision.
[3] The unions and BlueScope are parties to an enterprise agreement called the ‘BlueScope Steel Port Kembla Steelworks Agreement 2012’ (the agreement). The central issue in the appeal concerned whether the agreement permitted BlueScope to implement ordinary hours shift lengths in excess of eight hours duration within any 24 hour period within the Platemill in the absence of an agreementbetween BlueScope and the majority of employees concerned.
[4] Clause 13 of the agreement is headed ‘Hours of Duty’. At Clause 13.1 it provides that, for full-time employees:
‘Ordinary working hours will not exceed:
13.1.1 Eight hours during any consecutive 24 hours, or up to twelve hours per week during any consecutive 24 hours, where there is agreement between the Company and the majority of employees concerned in the relevant work area; or
13.1.2 152 in 28 consecutive days;
Except in the case of rostering arrangements which provide for the weekly average of 38 ordinary hours to be achieved over a period which exceeds 28 consecutive days.’
[5] In his decision, the Commissioner said:
‘[22] Clause 13 is quite specific. There must be an agreement between BlueScope and a majority of affected employees who approve of the changed hours of work. I have been invited to find in the Unions favour on this issue, which would finalise the matter at this point. However, such a finding would be premature.’
[6] The Commissioner drew attention to Clauses 5 and 35.2 of the agreement. Clause 5 provides:
‘5. No Extra Claims
Parties to this Agreement will not make any further claims prior to the nominal expiry date of the Agreement. This does not however prevent the implementation of change or raising and progressing of issues where provided for by the terms or processes of this Agreement.’
[7] Clause 35.2 provides:
‘35.2 Introduction of Change Including Outsourcing
35.2.1 Principles concerning the management of change
The parties agree to the following key principles concerning the management of change:
(a) The parties recognise and accept that change is an inevitable and increasingly necessary part of the steel industry.
(b) Change must be ongoing to ensure that the Company remain viable and employee expectation concerning security of employment can be satisfied.
(c) In considering the desirability and business case for any proposed change the tests to be applied are requirements for the change to be:
● safe;
● efficient;
● legal; and
● fair.
(d) The parties commit to consult and abide by the dispute settling procedures provided in this Agreement in the event that proposed changes are not agreed. In support of this commitment there will be both detailed communication and strong reinforcement by the Company and Un ions in respect of these procedures. Subject to any disagreement being dealt with in accordance with agreed procedures, and in the case of significant change 35.2.3, the change will be able to be implemented.
(e) All parties share an intent that there be "zero industrial action" and to that end will actively ensure that employees, delegates and officials will, on each and every occasion where a dispute arises and is not resolved, follow the applicable dispute settling procedure and not take industrial action.
35.2.2 Processes for introduction of Change
(a) Where changes are "significant in nature", as defined in this subclause, they shall be the subject to the processes set out in 35.2.3.
(b) Changes which are not "significant in nature" shall be introduced in accordance with the principles set out in subclause 35.2.1 and the provisions of the Agreement. Disputes in relation to such changes shall be dealt with in accordance with Clause 35.1 Procedure for Resolving Claims, Issues and Disputes.
(c) A changes is "significant in nature" for the purposes of this clause if the change will have substantial effects on:
(i) the composition, operation or size of the workforce in a section or department of the operations of the Company;
(ii) the skills required of employees;
(iii) the opportunities for promotions of employees;
(iv) the security of employment of employees;
(v) the hours of work of employees;
(vi) the location of work of employees;
(vii) shift pattern changes; and
(viii) outsourcing of work (meaning the engagement on a permanent basis of another organisation to perform work which has previously been performed by employees of the Company. In this respect outsourcing differs from the use of contractors to meet intermittent work load requirements or to provide specialist skills on a short term or as needs basis).
(d) Where a change is otherwise provided for in this Agreement it will not be regarded as significant in nature for the purposes of this clause.
35.2.3 Processes for introducing change which is significant in nature and for resolving associated issues and disputes
(a) The provisions of this subclause set out the terms and order of the procedure which shall govern the introduction and management of change which is significant in nature.
(b) A change will be determined to be significant where it meets the definition as set out in clause 35.2.2(c).
(c) Consultation will commence in relation to workplace change as defined when:
(i) the Company has developed an idea regarding a workplace change that, if implemented, would result in a change which is significant in nature, and
(ii) the idea has been developed sufficiently as to justify the time and effort required to allocate resources and to develop a working proposal, and
(iii) a "Task Brief" bas been prepared in at least broad terms that includes the:
● objectives of the change;
● issues that may arise if the change was progressed to implementation;
● criteria for appraisal of the idea;
● impact the idea may have on employees, customers and the business; and
● milestones in the review process.
(d) Consultation will commence with a notification in writing to employees and their unions (letter 1) as to the broad objectives of the change and the possible effect the change is likely to have on employees.
(e) Consultation is the process through which employees contribute to problem-solving and decision making. It provides for employee and union input before Company management finally decides on action affecting its employees.
(f) Employees and their unions will be provided with the opportunity to comment and input into the proposed change. This will not limit any party from proposing alternative ideas that may result in the objectives of the business being achieved.
(g) The consultation process must be fair, comprehensive and genuine.
(h) Following consideration of all aspects of the change, including consultation with employees, the Company will advise employees and the relevant unions in writing (letter 2) as to whether or not the Company will proceed with the introduction of the change. The advice will include:
(i) confirmation on the introduction of the change (as finally determined) and the nature of that change;
(ii) the date of the introduction of the change;
(iii) the impact the change will have on employees; and
(iv) what steps are to be put in place to manage the impact that the changes will have on employees.
(i) A decision by employees or the unions not to participate m such discussions brings to an end the consultation process.
(j) Where agreement is reached as to a change, the change may be implemented immediately and the parties are to promptly record the terms of the agreement in writing.
(k) Where there is disagreement as to the change to be implemented, a party to the consultation process must give written notice to the other parties that it disputes the implementation of the change and must follow the Procedure for Resolving Disputes as per clause 35.1.7. Where a matter is referred to FWC as part of the disputes procedure, implementation of the change will be subject to the outcome of such proceedings, during which time the status quo will remain.
(l) For workplace change, (including the number or composition of employees engaged on any task), the consultation process may provide for the change to be introduced on a trial basis by agreement. discussion between the parties as to how the trial arrangements should be implemented. An appropriate monitoring system will be established to ensure that the proposed changes are safe, efficient, legal and fair. The period of the trial will be determined in advance, with a return to the status quo in the event that it is shown that the trial fails the safe, efficient, legal and fair test.
(m) Definition:
For the purposes of clause 35.2, the term Workplace Change does not include:
Matters that involve the requirement for employees to work in accordance with the reasonable direction of the Company; normal day to day operations and work within the employee's recognised skills, competence, training and safe working practices.
Company decisions regarding significant capital investment, business growth etc. In these circumstance the Company is to provide the information in writing to employees and their unions as referred to in points (i) to (i v) of clause 35.2.3(h).
35.2.4 Nature of Consultation
Consultation involves:
(a) All parties being prepared to put forward considered views in respect of desired improvements and alternatives as to how such improvements could be achieved;
(b) An opportunity being given to all affected parties to fully understand the nature and impact of those views before any final decision on implementation of changes is made by the Company;
(c) Fair consideration being given to the issues and concerns raised by the parties before any final decision on implementation of change is made.’
[8] In his decision the Commissioner said:
‘[33] Clause 13.1 is a specific clause that deals with hours of work. I am obligated to apply the ordinary meaning of those words. In doing so, I accept that 12 hour shifts can only be introduced by agreement between the Company and a majority of affected employees. However, to blindly turn away from the other relevant provisions of the Agreement would be to participate in an act of industrial ignorance not contemplated by the authors and proponents of the Agreement....
[35] I do not accept the argument that Clause 13 and Clause 35.2 are mutually exclusive. To do so would undermine the integrity of the No Extra Claims clause and the Introduction of Change clause. The parties have been well aware of the pressures of globalisation for many years. I am aware that the industrial parties toured the world inspecting overseas steelworks on more than one occasion witnessing firsthand the efficiency pressures that would eventually befall the Australian Steel Industry. To now attempt to ignore the provisions that were deliberately inserted into the Agreement to meet these challenges cannot be supported. I find that the operation of clauses 13 and 35.2 of the Agreement are not mutually exclusive or inconsistent. The decision in DL v AMWU supports the notion that changes to the terms and conditions of employment can only be made if contemplated by the provisions of the Agreement. I find that clause 5 and clause 35.2 provide the capacity for Bluescope to propose this change.’
[9] The Commissioner then went on to consider whether BlueScope had substantiated the need to introduce the change proposed. He found that it had. He also found that the proposed change was safe, efficient, legal and fair.
[10] We are satisfied that the words of Clause 13.1.1 are quite plain in their meaning. In particular they establish that the ordinary hours shift lengths within any consecutive 24 hours shall not exceed 8 hours, unless the employer obtains the agreement of the majority of employees concerned in the relevant work area. While the clause sets a default maximum ordinary hours shift length, it provides a mechanism by which this can be altered, that is by the agreement of the majority of the affected workers.
[11] The requirement to obtain the agreement of the majority of the workers in the relevant work area is not limited or qualified by reference to when or how that agreement may be given or withheld, or by considerations such as those outlined in Clause 35.2.1 (c). Clause 13.1.1 does not provide that the agreement of the majority of the workers in the relevant work area is required except for when the change in the ordinary hours shift lengths is safe, efficient, legal and fair.
[12] It is of course appropriate, when construing a particular provision in an enterprise agreement to have regard to the terms of the agreement as a whole. In some circumstances the proper construction of a particular clause can only be understood by considering other clauses in the agreement.
[13] In the agreement under consideration it is clear that Clause 35.2 is a general provision relating to the introduction of change. As a matter of construction a specific provision dealing with a particular topic will normally override a more general provision dealing with the same topic. 3
[14] There is nothing in Clause 35.2 that would suggest that it might override the more specific provisions contained in Clause 13.1.1 to the effect that an ordinary hours shift length of more than eight hours in a 24 hour period can only be introduced with the agreement of the majority of the affected workers.
[15] Clause 35.2.1 sets out some general principles concerning the management of change. Clause 35.2.2 provides that where changes are ‘significant in nature’, as defined in that sub clause, they shall be subject to the processes set out in 35.2.3. A change that will have ‘substantial effects’ on the hours of work of employees generally come within the compass of changes that are ‘significant in nature’. However Clause 35.2.2 (d) states that a ‘change that is otherwise provided for in this Agreement... will not be regarded as significant in nature for the purposes of this clause.’ Given that changes to ordinary hours shift lengths are dealt with in Clause 31.1.1 this means that the change under consideration in this case is not ‘significant in nature’ for the purposes for the purposes of Clause 35.2. The only requirement under Clause 35.2 therefore is that - consistent with 35.2.2 (b) - the change should be introduced in accordance with the general principles set out in 35.2.1 and the provisions of the agreement. There is nothing to indicate therefore that 35.2 could allow the change under consideration being introduced in a manner inconsistent with a specific provision of the agreement.
[16] Nor could Clause 5 (No Extra Claims) be properly construed as providing BlueScope with the capacity to make changes that are inconsistent with a provision of the agreement, such as 13.1.1. In the context of this case, it simply makes it clear that BlueScope is not prevented from raising or seeking to progress the issue of increasing the ordinary hours shift length, or from implementing the proposed change if it can obtain the agreement of the majority of the affected employees.
[17] In summary, the Commissioner erred in his construction of the agreement in concluding that Clauses 5 and 35.2 enabled BlueScope to introduce ordinary hours shift lengths of greater than eight hours within any consecutive 24 hours without the agreement of the majority of the workforce in the relevant work area.
[18] Moreover, while the agreement empowers the Commission to arbitrate disputes about the implementation of change, the Commission’s powers are circumscribed by s.739 (5) of the Fair Work Act 2009 (the FW Act). The effect of that provision is that in arbitrating a dispute in accordance with a dispute resolution procedure in an enterprise agreement the Commission must not make a decision that is inconsistent with the enterprise agreement itself. In the circumstances of this case, this means that the Commission does not have the power to resolve a dispute referred to it in accordance with s.739 of the FW Act by determining that the employer may introduce ordinary hours shift lengths of greater than eight hours in a 24 hour period without the agreement of majority of the affected workers.
[19] The appeal raises issues of general importance, in particular in relation to how a general change provision in an enterprise agreement should be construed, when a more specific provision applies to a particular matter. The issue raised in the appeal is also likely to have implications for other proceedings concerning the parties which are currently before the Commission. In these circumstances we are satisfied that permission to appeal should be granted. In the light of the error identified in the Commissioner’s decision we are allow the appeal and quash the Commissioner’s decision.
SENIOR DEPUTY PRESIDENT
Appearances:
A Howell Counsel with H Schutz Solicitor for the appellants
J Darams Counsel with J Vido Solicitor for the respondent
Hearing details:
2015
Sydney
9 March
1 [2015] FWC 710
2 PR561765
3 Goodwin v Phillips (1908) 7 CLR 1 at 14
Printed by authority of the Commonwealth Government Printer
<Price code C, PR562056>
11
2
0