Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Ausgrid Management Pty Ltd t/a Ausgrid

[2018] FWC 4814

[2018] FWC 4814

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 739—Dispute resolution

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Ausgrid Management Pty Ltd t/a Ausgrid
(C2018/1428)

DEPUTY PRESIDENT SAMS SYDNEY, 23 AUGUST 2018

Dispute about a matter arising under an enterprise agreement – relocation of employees in Ausgrid – operational review and restructure – status quo – consultation over a long period – Ausgrid allowance and excess travel payments – consideration of personal and other circumstances – one hour considered reasonable travel time – operational requirements – direction to relocate lawful and reasonable – questions answered accordingly – dispute concluded.

BACKGROUND

[1] On 16 March 2018, pursuant to s 739 of the Fair Work Act 2009 (the ‘Act’), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (‘CEPU’ or the ‘Union’) filed an application in respect to a dispute with Ausgrid, in accordance with the dispute settlement procedure (‘DSP’) under the Ausgrid Agreement 2012 (the ‘Agreement’). The application seeks to have the Fair Work Commission (the ‘Commission’) resolve a dispute involving ten of its members who are Portfolio Managers in the Field Services Division of Ausgrid and who are opposed to being relocated from either the Wallsend, Ourimbah, Hornsby or Artarmon depots in New South Wales. The dispute arises from an operational review and restructure of the Portfolio Management section of the Division in mid-2017, which involved some 187 affected employees (the ‘Review’).

[2] The Commission convened a conference of the parties on 15 May 2018, but no resolution of the dispute was reached. Accordingly, in accordance with Cl 4 of the Agreement, the Union invoked the ‘status quo’ provision and as I understand the employees have not relocated pending final resolution of the dispute. I note a related dispute involving a member of the Association of Professional Engineers, Scientists and Managers Australia (APESMA) was settled and discontinued.

[3] The Commission listed the matter for hearing on 4 June 2018 after the parties filed their respective evidence and submissions. At the hearing Mr M Buttigieg and Mr D Austin appeared for Union and Mr S Woodbury, with permission grant under s 596 of Act, appeared with Mr G McDonald for Ausgrid.

[4] Written and oral evidence was provided by:

•  Mr Peter Kramel, Engineering Officer; and

•  Mr Peter Rigney, Head of Portfolio Management.

THE EVIDENCE

[5] Before dealing with the witness evidence, I set out below the relevant Agreement provisions which were referred to by both parties. I note that where the Union refers to Cl 40 of the Agreement, it means Cl 5 of the 2012 Agreement, and not the 2018 Ausgrid Agreement, as the dispute was filed on 16 March 2018, and the 2018 Ausgrid Agreement did not operate until 16 May 2018. In any event, the clauses are relevantly similar for present purposes.

[6] Cl 5 deals with consultation. As may be seen, the clause is not dissimilar to the consultation clauses found in all Modern Awards arising from the earlier Full Bench decision of the Commission which established standard obligations on an employer when considering changes to the workplace and which are likely to have an effect on the employees. It is common ground that Cl 5 applied to the present dispute. It reads:

5 CONSULTATION

5.1 The term 'consultation' is understood as a process of seeking information, seeking advice, exchanging views and information, and taking the views and information into

consideration before making a final decision.

5.2 Consultation regarding workplace change. Ausgrid seeks to continually improve its work processes and where possible to adopt the best practice in terms of efficiency and productivity in all work areas. Ausgrid's employees and their unions commit to supporting and contributing positively to the process of workplace change and improvement and agree not to unduly delay or frustrate the process described within this clause.

5.2.1 Employer to notify:

5.2.1.1 Before Ausgrid has made a final decision to introduce changes in production, program, organisation, structure, technology or policies that are likely to have an effect on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any. Employees and Unions that may be impacted on by the proposals for change will be consulted and will be able to provide input on how any changes may be implemented.

5.2.1.2 Effects include, but not limited to, termination of employment; changes in the composition, operation or size of the employer's workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work including; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs.

5.2.2 Employer to discuss change:

5.2.2.1 The employer will consult with the employees affected and their representatives, if any, the introduction of the changes in 5.2.1, the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and consider the matters raised by the employees and/or their representatives in relation to the changes.

5.2.2.2 For the purposes of such discussion, the employer will provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees.

If there is any dispute during the abovementioned process then the persons covered by this Agreement agree to resolve the dispute through the resolution procedure at Clause 4.

5.3 The commitment to consultation for change necessarily encompasses a high level of information exchange and sharing information. The persons covered by this Agreement therefore agree to maintain the confidentiality of commercially sensitive information at all times.

5.4 The persons covered by this Agreement may communicate jointly with the employees about issues and achievements, which affect the workplace. They will not unjustly criticise each other or seek to publicly denigrate the views of the other.

5.5 Peak Consultative Committee ("PCC")

5.5.1 The PCC will be established comprising the relevant Senior Executives, Managers of Divisions, Union Officials and Employee representatives to consult with respect to the specific issue/so

5.5.2 These meetings will focus on but are not limited to, organisational change and workplace reform.

5.5.3 If a matter raised at the PCC is under consideration at another Committee, it may be noted at the PCC.

5.5.4 The PCC shall meet on at least a quarterly basis or on an as need basis; however, members of the PCC shall be afforded a minimum of one (1) weeks notice of any proposed meeting.

5.5.5 The PCC shall have an independent Chair agreed by the PCC members and members shall participate in appropriate training to fulfil their duties. A charter shall be developed by the PCC members and agreed. Other management representatives and union officials are ex-officio members of this committee.

5.6 Local Consultative Committee ("LCC")

5.6.1 Up to a maximum of five LCCs will be established across the Ausgrid franchise area.

5.6.2 LCCs will discuss matters relevant to the local area. Matters relevant across the company or classifications or applicable to other geographic areas will be referred to the PCC for consideration.

5.6.3 Membership of each LCC will be made up of representatives of management and employee elected employee representatives from the local area work group/classification. Union officials are also invited to attend.

5.6.4 LCCs will meet at least every second month or more regularly if required.

5.6.5 Management will chair the LCCs. Minutes will be taken and shared with committee members and distributed to the other LCCs and the PCC.

5.7 At the commencement of a consultation process on a specific issue, the persons covered by this Agreement will reach agreement on a timetable and process reflecting the nature, circumstances and complexity of the issue.

5.8 The persons covered by this Agreement have the right to refer the matter into the Dispute Settlement Procedure at any time.

[7] The Wages and Salaries provision contains a subclause 9.2 dealing with the circumstances in which the Ausgrid Allowance is paid to employees. It reads:

9.2 The rates of pay set out in Appendices 1 include an "Ausgrid Allowance". This is set a shown in the table below:

Date	19/12/12	18/12/13
Amount per week	$51.74	$53.14

The payment of such allowance is to take into account the performance of work in relation to heat, height, dirty work, work in confined spaces; work subject to climatic conditions; subject to the lack of the usual amenities and facilities; subject to directions for alterations and variation of starting and/or finishing locations; subject to direction for availability for emergency work outside of ordinary working hours to ensure continuity and for availability for supply; subject to requirements to complete proficiency tests and subject to changes in the system of working.

[8] Excess travel arrangements and the payment of excess travel time are set out in Cl 41. The current rate is 66 cents per kilometre. The clause reads:

41 EXCESS TRAVEL

41.1 Excess travel time is defined as additional travelling time incurred by an employee in the following circumstances where:

41.1.1 the employee is directed to start work at a location which takes longer to travel to or from their home than to the usual place of work.

41.1.2 the employee is transferred to a new place of work which takes longer to travel to or from their home than to the former place of work. See also Sub-clause 41.2.

41.1.3 the employee is required to work overtime or is called out on a day which is not their normal working day. See also Sub-clause 41.5.

Where the employee does not have a usual place of work but instead has a nominal headquarters to which they are attached, for the purpose of calculating excess travel the headquarters are treated as the usual place of work.

41.2 Where an employee is transferred to a new place of work, payment for any excess travel shall only continue for the first six (6) months. This does not include transfers or appointments made at the employee's request or which are made for disciplinary reasons.

41.3 Payments for excess travel shall be calculated by estimating the actual travel time and distance by road. Excess travel time shall be calculated at ordinary rates for journeys undertaken Monday to Saturday inclusive and at ordinary time plus a half on Sundays and Agreement/Public Holidays. This does not apply to travel time undertaken for a call-out which is covered in Sub-clause 41.5.

Reimbursement for the distance travelled is not paid in any circumstances where an employee travels in an Ausgrid vehicle.

41.4 Excess travel is not paid for journeys undertaken during work time.

41.5 Where an employee is called out, all travelling time is paid at the appropriate overtime rate. The minimum payment of four (4) hours includes any excess travel time where the total time for the job plus travel to and from the job is four (4) hours or less.

41.6 An employee will be paid for his/her actual excess travel time and fares or the amount calculated under 41.3 above, whichever is the greater. Where an employee believes he/she has not at least been paid for the actual excess travel time and fares, he/she should submit a claim providing sufficient details about the actual mode of transport and the duration of travel for the claim to be assessed and paid.

41.7 Employees who travel in an Ausgrid vehicle are only entitled to payment for any excess travel time which exceeds 30 minutes per journey except when they are called out or work overtime on a day which is not a normal working day; in this case they are entitled to payment for all travelling time.

41.8 Notwithstanding Sub-clause 41.7 above, employees who travel to and from work in an Ausgrid vehicle shall not be entitled to payment for excess travel if the payment means it is no longer worthwhile to Ausgrid for the employee to take a vehicle to and from work. Payment for excess travel to employees who use an Ausgrid vehicle must be authorised by the relevant General Manager.

41.9 This clause applies except where a Local Workplace Flexibility Agreement is in place.

Mr Peter Kramel

[9] Mr Kramel is currently employed in the Artarmon/Dee Why depot and commenced employment with Ausgrid in July 2000. As a delegate for the Union, on 8 September 2017, Mr Kramel met with Mr Rigney and Mr Lawrence Gilbert (Design Management), together with Ms Margaret Buchanan of APESMA to discuss the consultation process for the restructure and its likely effect on surplus positions at each relevant location. Mr Kramel said that no information was provided about who would be affected, or how management would select employees for relocation.

[10] A Consultative Committee was established and its first meeting was held with Mr Rigney on 5 October 2017. A slideshow had been prepared as an overview of the way Ausgrid’s design and delivery work is done and the expected future changes to work load in the different regions. No details or impacts on staff were available. Mr Kramel said the proposed model moved the Design Staff into a new division called ‘Program Delivery’ and away from the Project Delivery staff who would remain in the Field Services Division. There were 6 Consultative Committee meetings between 5 October and 2 November 2017. At each meeting there were briefings on the impact on staff and Q & A sessions.

[11] Mr Kramel said that some of the proposals discussed included:

•  the use of virtual design teams to achieve the same outcomes, without relocation;

•  the offer of voluntary redundancies for those directed to relocate;

•  conducting design work in the Zetland area out of the Artarmon Depot; and

•  consideration of employees’ preferences, personal circumstances and additional travel.

[12] At these meetings, Ausgrid raised the selection procedures, including a measure of one hour of reasonable travel time. Mr Kramel believed it was unclear how Ausgrid had arrived at a one hour threshold and how alleged productivity gains would outweigh the personal and financial costs on impacted staff. Mr Kramel put forward two alternative proposals, which were:

•  Employees could be dispatched to a necessary depot on a rotating roster, as opposed to a permanent relocation.

•  Design staff directed to Artarmon, could work as effectively from Dee Why.

Mr Kramel’s second proposal was rejected, but it was said that Design staff could request flexible work arrangements.

[13] Between 3 November – 12 November 2017, staff were surveyed as to their preferences for a role and location. Affected staff were advised of Ausgrid’s final decisions on 1 December 2017. Various meetings were held with the Union under the DSP concerning staff who did not agree that they should be relocated, due to the criteria for selection.

[14] At a meeting on 7 March 2018, Mr Buttigieg had proposed staff be permitted to work one or two days at their current location to reduce the financial cost and travel time. This was rejected. On 13 March 2018, disputing staff met with Management to discuss their individual concerns. Mr Kramel sat in on some of these interviews. Each employee was asked about any further information they wished to put, in addition to that already provided and what individual flexibilities they would like considered.

[15] Around 12 July 2018, Mr Kramel proposed that staff be allowed co-location because they are predominately office based and only need occasional site visits. This proposal was rejected. As the dispute escalated, Ausgrid proposed to vary start and finish times and delay relocation for a short period. Mr Kramel said that Ausgrid claimed it used Google Maps to cross reference the Ausgrid travel time calculator, but could not provide hard data on distances and times.

[16] Management reiterated the early temporary proposals of flexible start and finish times and a delayed transition for a few months. Despite initial opposition, Ausgrid agreed to maintain the status quo until the dispute was resolved.

[17] Mr Kramel returned to the travel time calculations and disputed the cross referencing accuracy. He sought the details of times from each of the disputing employees, who told him as follows:

(a) Jeffrey Smith - a range of 55 minutes to 75 minutes at 6:05am

(b) Mathew Carlow - a range of 55 minutes to 70 minutes at 5:40am;

(c) Darren Bush - a range of 45 minutes to 65 minutes at 6:30am;

(d) Emma Walsh - a range of 50 minutes to 75 minutes at 5:50am;

(e) Matthew Griffiths - 50 minutes at 12pm;

(f) Grant Meredith - 46 minutes at 5:30am;

(g) Greg Fletcher - a range of 45 minutes to 55 minutes at 5:50am;

(h) Glen Whittington - 48 minutes at 5:00am; and

(i) Michael Pilgrim - a range of 45 minutes to 55 minutes at 6:00am.

Significant costs would be incurred for additional travel for:

(a) Jeffrey Smith - 380 kilometres per week

(b) Mathew Carlow - 552 kilometres per week

(c) Darren Bush - 423 kilometres per week

(d) Emma Walsh - 371.25 kilometres per week

(e) Matthew Griffiths - 660 kilometres per week

(f) Grant Meredith - 412 kilometres per week

(g) Greg Fletcher - a range of 670 kilometres per week

(h) Glen Whittington - 74.7 kilometres per week

(i) Michael Pilgrim - 269 kilometres per week

[18] Mr Kramel claimed that a Work Delivery Officer’s role involves around 10-20% in the field and 80-90% in the office. A Designer’s role is even less field based, being 90-95% in the office, using a computer.

[19] In cross examination, Mr Kramel acknowledged that consultation concerning this dispute has been ongoing for around 6 months. He suspected that at the commencement of consultation, Management knew how many positions were in surplus and deficit at each location, but had not known who has to be selected. He agreed that the details on the impact on staff was part of the consultation process. Arising from the slideshow and Q & A sessions, 153 questions were raised by employees and the Unions and answered by Management. Mr Kramel accepted that the employees and the Union were provided an opportunity to put proposals to Ausgrid. They did so and he accepted they were taken into account. He also accepted that part of the consideration was the business needs and the skills mix recognised at each location. Mr Kramel’s evidence was that the one hour threshold had been questioned as to its reasonableness, how it was determined and whether there was precedent for it. He agreed the Union did not propose any alternative times.

[20] Mr Kramel confirmed that he had put two proposals to Management; see: paragraph [12] above. Ausgrid did not accept his rotational roster proposal. He ultimately accepted Management’s rejection of his alternative proposals. When employees were selected Mr Kramel agreed it was an evolutionary process, but the Union did not suggest other people should be selected in the place of those identified. He did not believe a selection/replacement exercise was a role for the Union.

[21] Mr Kramel acknowledged that Ausgrid intended to have people actually relocated to where the work is located. However, the nature of the work and the concept of a virtual design office, meant that employees spend most of the time in the office and only occasionally visit the sites. This was what he had proposed to Management. Mr Kramel accepted that Designers are required to make planned and unplanned field visits when customers have complaints. He understood that Ausgrid had proposed some flexibilities, including changes in start and finish times. Mr Kramel confirmed he had been involved in some of the interviews with employees in an effort to have each of their personal circumstances taken into account.

[22] In re-examination, Mr Kramel said Management had never provided the costs and impact on individual staff members. The Union’s own estimation was that the extra fuel and travel costs were between $3,000-5,000. This was a huge impact for most of them.

[23] As a Designer, Mr Kramel claimed he would not spend much time in the field. Field emergencies are generally attended to by field staff and field supervisors. He believed Designers spend 90-95% in the office. He did not recall if Ausgrid challenged these figures. For Project Delivery Officers (PDOs) he believed 80% of their time was in the office.

[24] Mr Kramel said that there had been seven alternative proposals put to Ausgrid, and although some were individually specific, they were all rejected. Mr Buttigieg confirmed that four employees, whose personal circumstances were accepted by Ausgrid, were not selected.

Mr Peter Rigney

[25] Mr Rigney has responsibility for managing a team of engineers, para-professionals and administrative staff who support the delivery of work on Ausgrid’s distribution network. Mr Rigney set out the scope and coverage of Ausgrid - the Network covers 22,275 sq kms, and includes more than 200 large electricity substations, 20,000 small distribution substations, 500,000 power poles and 50,000km of below and above ground electricity cables. The Field Services Division compromises of 1482 employees whose primary responsibility is to attend to the maintenance, replacement and upkeep of the distribution Network. Work is allocated in regions or areas, with the location varying on a day to day basis, depending on operational needs.

[26] Mr Rigney said that a primary driver of workload and resource deployment is the aging nature of the Network. This means that as each area of need is completed, new priorities are identified and the deployment of resources will vary over time. He said a Review in mid-2017 considered the workload for Designers and Project Officers. This resulted in the identification of workload deficiencies and surpluses and the need for reorganised responsibilities. He said the Review identified an imbalance in the location of Design and Project Officer resources, as priority areas moved geographically south away from the Hunter, Newcastle and Central Coast towards the Sydney Metropolitan area. Ausgrid’s Portfolio Investment Plan for years 2020-24 confirmed the shift in investment. This necessitated the redeployment of employees, within a reasonable area from their present home base to the next closest location. Mr Rigney said the operational benefits of relocation include:

(a) more effective planning of works due to closer proximity to work location and the ability to draw upon local knowledge;

(b) the more proximate location of Ausgrid employees to their work source provides an improved ability to more speedily resolve urgent issues during construction;

(c) working relationships are improved where the employee works in the same location as the field teams delivering the work together with other supporting workgroups and service providers;

(d) improved customer experience through being better able to liaise with, and respond to customers and other stakeholders during design and construction, and in response to customer enquiries and requests for work;

(e) improved management accountability for the delivery of work within a region due to responsibility aligning with reporting lines, allowing more effective resource allocation and prioritisation of work; and

(f) an improved ability to implement change initiatives, particularly those initiatives that rely on clear lines of communication and accountability between office-based and field-based staff.

[27] Mr Rigney described the extensive consultation process undertaken with employees and the relevant Unions. There is no dispute as to the steps in this process, as set out by Mr Kramel. Mr Rigney contended that there was genuine consultation which took into account the individual views of the employees and the Unions. A number of employees volunteered to transfer. Where there were insufficient volunteers, Ausgrid identified employees who were within approximately one hour travelling time. Once identified, individuals were provided the opportunity to raise any personal circumstances that might prevent a reasonable direction to work in an alternative location. Four employees were removed from the process and did not relocate. Mr Rigney addressed each of the proposals put to Ausgrid by the Unions and the employees as follows:

‘(a) In summary, the proposal was to enact the directed transfers formally and within systems whilst only requiring the employee to work in the new location when there were specific operational demands to require them to work from that location. The proposal sought to allow employees to work within their current location and travel to the alternative location as required as an alternative to a bona-fide relocation, with the onus falling on management to prove that an employee was required in their bona-fide location on any particular day.

(b) it was recognised within our discussion that the alternate proposal was impromptu but one that Ausgrid would give some thought to. Having given the concept some thought Ausgrid did not consider the option to be viable. A key theme of the proposal and consultation process has been to rebalance depot numbers on the basis of sustained shifts in future workloads. With sustained shift in foreseeable workloads, it is paramount that there is a proportionate and bona-fide adjustment in the allocation of the workforce.

(c) the proposed alternative implies the achievement of those outcomes on paper only and from a practical and operational sense the imbalanced structure would carry forward. There are future concerns that the proposal would crate a direct conflict between the formal terms and conditions of employment and actual practice of how it was applied, as the default location of an employee would differ from their appointed location. The proposal would also give rise to an unnecessary burden on management to monitor the detailed progress of their employee’s tasks in order to determine their required location on a day-by-day bases.’

[28] Mr Rigney said the key theme of the restructure was to rebalance depot numbers in respect to future workload. This involves a proportionate and bona fide adjustment in the allocation of the workforce. The Union’s proposals do not address this imperative. The imbalance will still remain in an operational sense. There may also be concerns that formal terms and conditions of employment would conflict between the default location and the appointed location. It would also place an unnecessary burden on Management to monitor the employees’ tasks in order to determine their required location on a day to day basis.

[29] 1. Realigning employees by rotation on a three to six month basis.

This proposal would not provide stability for employees or the business. There would be shifting lines of accountability as employees rotate. Management of long during projects or programs would be frustrated when they span across more than one location.

2. Expand the Ourimbah distribution area.

This proposal would be contrary to the overall objective of realigning the workforce southward to meet increased demand in Sydney. This would increase travel time and consequent loss of production.

3. Retain design function

Not relevant to this dispute.

4. Retain Design Resources at Dee Why and not move to Zetland

Not relevant to this dispute.

5. Alternative to proposed realignment such as AER Determination and Unit Rates.

Voluntary redundancies be considered.

Management has adopted a conservative approach to the process. Voluntary redundancies are not preferred, as Ausgrid seeks to retain the skills and experience of the existing workforce.

6. Adjournment to planned Capital Work

It was suggested that additional capital work be brought into the plan so as to retain employees at their current locations. Additional work will be managed through existing processes.

7. Location Sydney South and West Design team

Not relevant to this dispute

[30] Mr Rigney set out the consultation and dispute resolution process engaged in by the parties as follows:

•  On 2 November 2017, Ausgrid held its final subcommittee meeting to address final feedback and questions and to detail the final decision and recap on the implementation steps;

•  On 8 December 2017, a tier 1 dispute meeting was held between the parties to discuss the matters raised by the ETU on 6 December 2017;

•  On 12 December 2017, the ETU advised Ausgrid of its intention to escalate the dispute to a tier 3 in accordance with the dispute settlement procedure under the Agreement.

[31] Mr Rigney described the broad consultation with the Unions and individual employees. Individual factors taken into account were:

•  where the employees reside;

•  the time involved in commuting to a new work location and where appropriate, their existing travel time;

•  the personal circumstances, including their childcare or other personal arrangements; and

•  the need to maintain an appropriate mix of skills and experience in each depot.

[32] Mr Rigney said that the benchmark of one hour was determined to be generally accepted between Ausgrid, the employees and the Unions in terms of travel time frames from home to work location. This benchmark was consistent with Safework’s Guidelines and Ausgrid’s Fatigue Management Policy which records the following:

Does anyone have to travel more than one hour to get to their job? Yes/No

The company has an obligation to verify, so far as is reasonably practicable, a safe and healthy workplace free of hazards that pose a risk to the health, safety and wellbeing of our workers (Section 19). The company and its management are responsible for:

In accordance with Section 28, workers must take reasonable care for their own health and safety and must not adversely affect the health and safety of others. Company workers are responsible for:

•  providing appropriate training and awareness sessions;

•  monitoring compliance to this hazard guideline;

•  providing support for workers who are experiencing fatigue and fatigue related concerns;

•  continually reviewing the appropriateness of the hazard guideline; and

•  verifying fatigue risks are assessed and a Branch Fatigue Management Plan is in place where appropriate.

•  Obtaining adequate recovery sleep between work periods;

•  Notifying their manager/supervisor when they have, or are about to, breach the maximum daily/weekly hour limit;

•  Notifying their manager/supervisor when they are experiencing fatigue symptoms whilst at or before starting work;

•  Stopping work immediately when fatigue is impairing their ability to work;

•  Seeking appropriate counselling or medical attention when they are concerned that fatigue is having an impact on their physical and psychological wellbeing; and

•  Advising their manager/supervisor where they are required to travel more than 60 minutes between their home and their place of work (emphasis added).

[33] Mr Rigney said that the travel times were reflected in consideration of Google Maps and Ausgrid’s travel time system. It was based on the time an employee left for work and travel times from door to door. He acknowledged that the Ausgrid travel system was less precise than Google Maps because the former estimates from suburb to suburb. Mr Rigney was confident that for each employee proposed to relocate, reasonable travel time was one hour or less.

[34] Mr Rigney added that under the Agreement the affected employees would also be entitled to excess travel payments for the first 6 months of relocation. Based on the Agreement clause and the current ATO rules this is 66 cents per kilometre. For some affected employees this would equate to up to $170 a day.

[35] Mr Rigney provided a chart of the travel time estimates for each of the disputing employees. I reproduce it (appropriately redacted) below:

Name	Home address	Current Depot	Proposed Depot	Current TT – Google Maps	Proposed TT – Google Maps (Nov)	Proposed TT – Travel Time System (Nov)
1.	Grand Meredith	Ssssssssssssssss	OURIMBAH	HORNSBY	14	45	49
2.	Darren Bush	Ssssssssssssssss	OURIMBAH	HORNSBY	16	48	47
3.	Mark Ransley	Ssssssssssssssss	OURIMBAH	HORNSBY	30	56	58
4.	Jeffrey Smith	Ssssssssssssssss	OURIMBAH	HORNSBY	35	57	47
5.	Matthew Carlow	Ssssssssssssssss	OURIMBAH	HORNSBY	16	58	58
6.	Emma Walsh	Ssssssssssssssss	OURIMBAH	HORNSBY	22	53	57
7.	Gregory Fletcher	Ssssssssssssssss	WALLSEND	OURIMBAH	6	44	54
8.	Glenn Whittington	Ssssssssssssssss	RUTHERFORD	OURIMBAH	45	45	48
9.	Matthew Griffins	Ssssssssssssssss	WALSEND	OURIMBAH	8	48	54
10.	Michael Pilgrim	Ssssssssssssssss	WALLSEND	OURIMBAH	35	50	55

[36] Mr Rigby said that additional flexibility arrangements would be available to assist individual employees. These include:

(a) Adjustable start/finish times;

(b) Delayed take up of relocations;

(c) Ability to work from alternative sites when business needs align; or

(d) Other reasonable temporary amendments that would support the employees transition.

[37] Mr Rigby rejected the Union’s proposition that an employee’s appointment letter to a specific depot, overrode Ausgrid’s ability to direct an employee to relocate. He believed that the requirement to relocate is reasonable and permitted by the terms of Ausgrid; see: Agreement cls 9.2, 41.1.2 and 41.2. Mr Rigby said that of the 29 affected employees, 19 have already relocated and no issues have been raised by them. Some have been promoted or have moved to other roles. Despite this, the refusal of the disputing employees to relocate has put resource pressure on the new locations and impeded operational change initiatives. Accordingly, he believed this dispute should be resolved as soon as possible.

[38] In further evidence in chief, Mr Rigney said the rationale for the relocations were discussed at length during the consultation. There was a forecast of work for 2019 which disclosed a significant surplus of resources north of the Hawkesbury and a significant deficit of resources south of the Hawkesbury. This was to be initially addressed through voluntary relocations. Mr Rigney confirmed five persons who were identified for relocation did not relocate after management gave consideration to their personal circumstances.

[39] As to the one hour from home time benchmark, Mr Rigney understood this had been the subject of previous agreement during earlier consultations within the Field Services Division in 2016. No alternative time was ever raised. Mr Rigney addressed the two specific proposals Mr Kramel had suggested. He said they would not provide certainty as to reporting lines and could be a source of conflict about leave requests. Ultimately, Mr Rigney believed staff could react more quickly to emergency or urgent situations and there is better Management accountability and a greater ability to implement organisational change initiatives, when the responsibility for delivery work within a region, is actually aligned with the resources to deliver the work.

[40] Mr Rigney rebuffed the Union’s suggestion of colocation, as a form of a ‘shadow’ structure, where the appointed location differs from the default location. In addition, this would be an unnecessary burden on Management to monitor day to day work tasks. Mr Rigney disagreed with the percentages of time a Delivery Officer spent in the field vis a vis the office. It would also vary from project to project. Mr Rigney described the distinction between planned and unplanned site visits.

[41] Mr Rigney outlined the exercise undertaken as recently as May 2018 in respect to aligning Google Maps with the time employees left home for work. He also referred to Ausgrid’s own payroll system, which was less accurate than Google Maps.

[42] In cross examination, Mr Rigney said he expected employees to understand the tangible benefits to Ausgrid for the relocations. He accepted that actual dollar productivity benefits could not be quantified, but they would appear to be obvious. Accordingly, he believed the relocations were reasonable. Mr Rigney conceded that there was no document setting out any agreement to the one hour travel benchmark. However, he understood it had been discussed and used in earlier consultations. Mr Rigney was unable to obtain a detailed response to how Ausgrid’s payroll system worked out travel times. He also understood Google Maps could be ‘conservative’ with their estimates. He did not believe it was appropriate to actually drive the distances from the employee’s home to work and it would not be as objective as Google Maps. As to the screenshots of the Google Maps assessments, Mr Rigney said the criteria was clear and the variations are small. Ultimately the results are all under one hour.

[43] As to the employee’s appointment letters, Mr Rigney understood that it was not a question of the Agreement overriding the appointment letter; the appointment letter simply outlines where an employee is expected to turn up to, until and unless, there is a transfer to another location, otherwise permitted by the Agreement. He agreed it may have been preferable to clearly articulate that appointment to one location is subject to the operational needs of Ausgrid.

[44] Mr Rigney was asked about the position description for Project Delivery Officer which refers to an 80/20% office to field ratio. He believed 20% was a lower limit. The ratio figures were ‘ballpark’. Finally, Mr Rigby did not accept that a ‘trial would have been more appropriate to assess productivity outcomes of the relocations.

SUBMISSIONS

[45] In its written submission, the Union posed the following questions to be determined by the Commission:

•  Has the respondent complied with its obligations under paragraph 40 Consultation of the Agreement?

•  Was the respondent entitled to direct the employees to relocate in the circumstances as the consultation occurred?

•  On the merits of the information available to the respondent in Consultation, should the respondent have excluded some or all of the disputing employees from its direction to transfer to new depots?

•  What measures in accordance with clause 5 is the respondent required to take to avert or mitigate the adverse effects of the transfer of the employees?

[46] The Union submitted that questions (a) and (b) above should be answered in the affirmative and question (c) should be answered in the negative. (Unless I am completely mistaken, I think it can safely be assumed that the Union’s position must be that questions (a) and (b) be answered in the negative and question (c) in the affirmative. I will proceed on that basis).

[47] The Union put that there were no jurisdictional impediments to the Commission exercising its powers under s 595(3) of the Act to arbitrate this dispute. After setting out the history of the dispute and the relevant Agreement provisions, the Union submitted as follows:

•  Clause 40.6.3 (c) (5) (a) obligates the respondent to provide all relevant information about a change in writing to the employees. At multiple points in the consultation process the Applicant requested information from the respondent about the calculation of Travel Time, which has not been provided.

•  The CEPU asserts that by not providing the method for Travel Time calculations the respondent failed to provide proper consultation to employees on the change.

•  Clause 40.6.3 (c) also imposes an obligation on the respondent at (5) (c) to invite the relevant employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities). Paragraph (e) of that clause provides that Ausgrid must give prompt and genuine consideration to matters raised about the change by the relevant employees.

•  The respondent conducted a number of meetings and communications with the Employees and their representative Unions throughout the consultation and dispute resolution. The Statement of Peter Kramel shows that throughout the consultation Employees and their representatives offered models for mitigation of the adverse impacts of the change, which were rejected out of hand by the respondent.

•  The CEPU submits that the respondent cannot by mere reference to its desire for “commonality of tools and processes” or face-to-face relationship management discharge its obligation to give genuine consideration to matters raised by the relevant employees. Some assessment of the merits of each proposal is required.

•  To the extent that consultation involved a scripted format and standardized offers of workplace flexibility arrangements, it did not facilitate genuine consideration of matters raised by the employees in accordance with the obligations imposed by clause 40 of the Agreement.

Travel Time

•  In the course of consultation, shown in Appendix PK-4 to the Statement of Peter Kramel, the respondent adopted a threshold of one hour travel as a measure of reasonable travel. The CEPU asserts that disputing employees, Jeffrey Smith, Mathew Carlow, Darren Bush and Emma Walsh fall outside that threshold.

•  In the applicant’s submission, those outside the 1 hour threshold for travel time are subject to an unreasonable direction to transfer, were not provided accurate information in consultation, and should be excluded from the workplace change.

•  In its use of one hour travel time as a threshold for reasonable relocations the Respondent did not during the consultation consider other factors which make the change unreasonable.

•  In the course of assessing and communicating to employees the impacts of the change under cl.40.6.3 (c)(3), the respondent ought to have considered the additional distance to be travelled by the disputing employees.

•  In the applicant’s submission, the respondent’s direction to transfer is unreasonable, having regard to other factors including the cost of fuel and other costs of additional travel time required of the employees by the disputed change.’

[48] In oral submissions, Mr Buttigieg said that what is being sought in this dispute is an understanding of ‘reasonableness’ where one must balance the burden on employees of dislocation and the perceived benefits to Ausgrid. Mr Buttigieg asserted that there was no objective methodology adopted by Ausgrid in undertaking this exercise. While acknowledging the benefits to Ausgrid may be ‘intuitively correct’, Mr Buttigieg submitted that intuition can be incorrect, or the benefits are only marginal, when compared to the dislocation to employees and the impacts on children and family responsibilities, with the extra time involved and the extra costs incurred on petrol and ‘wear and tear’ on their vehicle. On the other hand, the concepts of benefits to Augrid are only nebulous and no hard objective evidence had been provided to positively prove the benefits to Ausgrid.

For Ausgrid

Mr Woodbury put that only two questions arise for determination in this case:

•  Whether Ausgrid has the right to direct employees to change their location of work?

•  Whether the direction to relocate is reasonable?

[49] Ausgrid’s right to direct employees to relocate was not only reasonable, but is provided for in the Agreement and compensated for by way of an allowance. It was acknowledged that the right to direct is a qualified right that the direction is reasonable. When considering what was reasonable, Ausgrid took into account a range of factors and concluded that:

(a) The business reasons for the decision to direct employees to relocate are well founded and operationally necessary.

(b) There was extensive consultation with employees and their Unions concerning the process by which the relocations would take place, the reasons for the decisions to ask employees to relocate and the basis upon which those decisions were made.

(c) The consultation canvassed a range of alternatives and consideration was given to each of these matters.

(d) The selection of employees to relocate took into account a range of factors including the travel time to the new work location, the employee’s personal circumstances and the mix of skill and experience requirements at the new location.

(e) Employees affected may avail themselves of more flexible arrangements to better accommodate them in working from their new work location.

(f) Employees will receive the prescribed allowance under the Agreement as part of their relocation to work from a new location.

[50] In oral submissions, Mr Woodbury relied on the evidence of Mr Rigney, which he claimed, amply demonstrated that consultation was extensive and in compliance with the Agreement. None of the personal circumstances of the employees were raised against Ausgrid and opportunities had been provided for every affected employee to put their personal circumstances and have them considered. For 5 employees, this reconsideration resulted in the direction to relocate being withdrawn.

[51] In respect to the additional travel time, Mr Woodbury said that, of course, that was a negative factor, but what was undertaken was a benchmark time of one hour, identified from other sources, as being reasonable. There will be small variances, but in all cases, the methodology using up to date Google Maps was adopted. It is a very reliable and widely used means of determining distances.

[52] In reply, Mr Buttigieg emphasised that physically driving the routes was a far more reliable indicator than either Ausgrid’s system or Google Maps.

CONSIDERATION

Meaning of ‘consultation’

[53] The meaning of the word ‘consult’ was considered by the Full Bench in Consultation Clause in Modern Awards [2013] FWCFB 10165. At paras [30]-[33], the Full Bench said:

[30] The word ‘consult’ means more than the mere exchange of information. As Young J said in Dixon v Roy:

“The word ‘consult’ means more than one party telling another party what it is that he or she is going to do. The word involves at the very least the giving of information by one party, the response to that information by the other party, and the consideration by the first party of that response.” [citations omitted]

[31] The right to be consulted is a substantive right, it is not to be treated perfunctorily or as a mere formality. Inherent in the obligation to consult is the requirement to provide a genuine opportunity for the affected party to express a view about a proposed change in order to seek to persuade the decision maker to adopt a different course of action. As Logan J observed in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited (QR):

“... A key element of that content [of an obligation to consult] is that the party to be consulted be given notice of the subject upon which that party’s views are being sought before any final decision is made or course of action embarked upon. Another is that while the word always carries with it a consequential requirement for the affording of a meaningful opportunity to that party to present those views. What will constitute such an opportunity will vary according the nature and circumstances of the case. In other words, what will amount to “consultation” has about it an inherent flexibility. Finally, a right to be consulted, though a valuable right, is not a right of veto.

To elaborate further on the ordinary meaning and import of a requirement to “consult” may be to create an impression that it admits of difficulties of interpretation and understanding. It does not. Everything that it carries with it might be summed up in this way. There is a difference between saying to someone who may be affected by a proposed decision or course of action, even, perhaps, with detailed elaboration, “this is what is going to be done” and saying to that person “I’m thinking of doing this; what have you got to say about that ?”. Only in the latter case is there “consultation. ...”

[32] We respectfully adopt his Honour’s observations. Similar to the obligation to accord a person procedural fairness, the precise content of an obligation to consult will depend on the context. The extent and significance of a proposed change, in terms of its impact on the affected employees, will have a bearing on the extent of the opportunity to be provided. Hence a change of limited duration to meet unexpected circumstances may mean that the opportunity for affected employees to express their views may be more limited than would be the case in circumstances where the proposed change is significant and permanent. It is also relevant to note that while the right to be consulted is a substantive right, it does not confer a power of veto. Consultation does not amount to joint decision making.

[33] Some of the ordinary incidents of a requirement to consult are reflected in s.145A(2), that is:

● to provide information about the change; and

● to provide an opportunity for affected employees to give their views about the impact of the change; and

● to consider any views about the impact of the change that are given by the employees [footnotes omitted].

[54] In my view, one would be hard pressed to find a more exhaustive, wide ranging and empathetic consultation process than what was evident in this case. While the Union argued that Ausgrid did not comply with its consultation obligations under cl 5 of the Agreement, and therefore the direction to relocate was invalid, I apprehend its more robust and real submission went to the ‘reasonableness’ of the direction. I will come back to this question shortly.

[55] Let me elaborate on the steps taken by Ausgrid to ‘consult’ with the Union and the employees to make good my conclusions above, by reference to the following uncontested chronology:

(a) On 12 July 2017, an overview of a suite of initiatives to restructure Field Services and Program Delivery, including design and portfolio functions was presented at the Peak Consultative Committee.

(b) On 8 August 2017, a pre consultation meeting was held with a number of unions, including the applicant, during which an agreed timetable was established to discuss the proposed changes and the participants agreed on a process for identifying union delegates and employee representatives to sit on the subcommittee from all impacted distribution areas. This resulted in 18 employees participating in the subcommittee process.

(c) On 13 September 2017, all employees within the Portfolio Management branch were briefed on the proposal and invited to express interest in participating on the consultative committee.

(d) The agreed consultative timetable involved six meetings, where lead management representatives on behalf of the respondent alternated between the respondent’s Wallsend and Head Office Building venues to attend the meetings. At these meetings, a sufficient amount of detail was presented and employee questions were addressed, considered and responded to.

(e) The respondent received 153 questions during the consultative process, both directly and through the subcommittee process, with all questions answered prior to the conclusion of the agreed timetable on 2 November 2017. A copy of each of the questions and responses from the respondent are attached and marked Annexure A.

(f) The formal consultation process addressed the rational for the reorganised responsibilities, workloads by geography and rational for relocations (as opposed to alternative models, such as remote work models).

(g) The respondent undertook genuine consultation in accordance with the requirements of the Agreement and during those forums, took into account views of both unions and delegates and employee representatives that were exchanged prior to decisions being reached in relation to the proposed changes.

(h) As part of the process, frontline portfolio employees were provided with the opportunity to express interest in a different portfolio by function and location, in an attempt to find mutually agreeable assignments and transfers as a priority over directed relocations/portfolio placements. The respondent was encouraged by the response and number of employees who volunteered to make a transfer that complimented the consulted level of roles by location (a sign that employees were engaged in the thorough consultation process.

(i) Where there were insufficient voluntary moves, the respondent then consulted with employees who were within approximately one hour travelling time to an alternative location in order to address surplus locations and deficit locations.

(j) In these scenarios, the affected employees were approached by management and provided the opportunity to raise any personal circumstances that would prevent a reasonable direction to work in the alternative location. As a result of this process, a number of the employees who were initially proposed to be directed to a new work location were removed from this process and not directed to relocate to the proposed new work location as a result of personal circumstances disclosed during this process. It is necessary to note that one of the employee’s named in the applicant’s dispute continues to be the subject to these discussions, and as such, a decision has not yet been made in relation to whether he will be directed to relocate.

(k) A copy of correspondence from the respondent to the involved unions, including the applicant, which closes out the consultation process and provides a summary of the consultation process undertaken is attached and marked Annexure B.

[56] It should not be lost sight of that ‘consultation’ does not mean agreement. While all consultation clauses in Agreements and Awards, have particular steps or discrete matters to be taken into account, I know of no consultation clause which requires ultimate agreement or consent of the parties.

[57] In addition to this process, on 8 December 2017, the DSP was commenced and followed according to the DSP set out in Cl 4 of the Agreement. Throughout this process and to this point, the status quo has remained in force and no employee, identified to relocate and who is covered by the dispute, was directed to do so.

Is the direction to relocate lawful?

[58] In my view, the answer to this question must be in the affirmative. Both the Agreement and Ausgrid’s policies require that employees may be directed to relocate from time to time. Indeed, it is difficult to imagine how Ausgrid could respond to changing legislative and operational needs if it did not have a capacity to direct employees to where the work is required to be performed. That this is self-evident, can be seen from the Agreement’s provisions at cl 9.2 and the excess travel time provisions (Cl 41), which speak expressly of being required to travel ‘from their home than to the usual place of work’.

[59] As to the Union’s argument in respect to the employees’ letters of appointment designating an employees’ location, three things may be said about the submission:

1. Letters of appointment do not override the terms of the Agreement (I accept that the Union did not press this point).

2. As a matter of practical common sense, to expect that an employee’s work location will be the same while ever the employee is employed is fantasy. Apart from the fact that physical locations will sometimes disappear, to think that an employee is locked into a set location, would mean an employee was prevented from pursuing promotional opportunities elsewhere in the business during the course of their career.

3. There was no documentary evidence tendered of any of the affected employee’s letters of appointment.

Is the decision to relocate reasonable?

[60] The term ‘unreasonable’ is probably the most argued word in the industrial relations lexicon. It variously appears in a legislative context, in awards, agreements, contracts of employment and in numerous decisions of industrial tribunals and courts. As a starting point, I note the ordinary English meaning of ‘unreasonable’ as defined in the Macquarie Concise Dictionary, 5th Edition:

‘adj. 1. not reasonable; not endowed with reason. 2. Not guided by reason or good sense. 3. Not agreeable to or willing to listen to reason. 4. Not based on or in accordance with reason or sound judgement. 5. Exceeding the bounds of reason; immoderate; exorbitant.’

[61] Recently, a Full Court of the Federal Court was asked to consider a clause in an enterprise agreement, which required employees to follow ‘all lawful directions’. The Full Court, Bromberg, Katzmann and O’Callaghan JJ, in One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77 said at paras 187 and 188:

187. We are not convinced that the Commissioner did misread cl 7. In all likelihood his reference to “lawful and reasonable directions” reflected his construction of the clause. It is doubtful whether a different construction would be given by any other member of the Commission. That is because the duty of the employee at common law is to obey lawful orders. The “standard or test” by which the common law determines whether the order is lawful is one of reasonableness: R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan [1938] HCA 44; (1938) 60 CLR 601 at 621. Dixon J explained at 621–2:

If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.

As Finn J observed in McManus v Scott-Charlton [1996] FCA 1820; (1996) 70 FCR 16 at 21:

The need for some such limitation is patent: employment does not entail the total subordination of an employee’s autonomy to the commands of the employer. As was said by the President in Australian Tramway Employees’ Association v Brisbane Tramways Co Ltd (1912) 6 CAR 35 at 42:

‘A servant has to obey lawful commands, not all commands. The servant does not commit a breach of duty if he refuse[s] to attend a particular church, or to wear a certain maker’s singlets. The common law right of an employee is a right to wear what he chooses, to act as he chooses, in matters not affecting his work.’

There are obvious, and powerful, considerations of civil rights and liberties and of due process which inform this. These need not be laboured here although they are of no little significance in the resolution of this case.

[62] I accept unreservedly that the relocated employees will suffer some detriment, including less time at home by being required to travel extra time and longer distances to their work location. Their resistance to this change is perfectly understandable. I could not imagine any employee, who was required to work for more than 5-10 minutes from where they are used to, would welcome relocation ‘with open arms’. According to Mr Buttigieg, with whom Mr Woodbury concurred, it all comes down to:

(a) whether the excess travel time is ‘reasonable’ and

(b) whether Ausgrid has considered measures to alleviate any detrimental effect on employees of the extra travel time.

[63] In some cases, extra travel time would be, on any view, plainly unreasonable; if, for example, an employee was directed to relocate to Darwin. (providing there was no contractual terms permitting such a move). Extra travel time might be unreasonable if the employee did not drive or there were no public transport options to get to and from work. In other cases, (as here), personal and family circumstances may be such as to create an unreasonable burden on an employee. The evidence in this case was that all affected employees were invited to submit any reasons why they could not relocate, based on personal and family circumstances and discuss these concerns with Management. This resulted in 5 employees originally selected for relocation having the decision revoked.

[64] I do not understand the Union to suggest that this individually focussed attention to mitigating the effects of the relocation, was wrongly decided or biased. In my view, this demonstrates a caring and genuine attempt by Ausgrid to not only comply with its consultation obligations, but take them very seriously and sympathetically. Moreover, it is relevant to observe that the Union brought no evidence from any of the affected employees of their individual family and/or personal circumstances. Given this, I am in no position to consider, let alone judge, whether any of the employees circumstances were not appropriately taken into account by Ausgrid or that the direction to relocate was unreasonable.

[65] Other measures under the Agreement, or accepted by Ausgrid, will go some way to alleviate both the financial and time loss impact on the extra travel. These include, of course, the extra travel time allowances which will see some employees receive up to $170 a day in addition and the flexibility arrangements as set out in para [36] above. I accept that from an employee’s perspective, these measures, (particularly the excess travel allowance only applying for 6 months), might seem insignificant, even tokenistic, but in my opinion, they constitute real and genuine attempts by Ausgrid to ameliorate the impacts of relocation.

[66] The Union submitted that not one of its seven proposals, put as compromise to relocation, was accepted by Ausgrid. While this is true, in my view, each of these proposals did not address the beneficial propose of the relocations to Ausgrid or compromised the integrity of the process by introducing additional management burdens in terms of managing employees in separate locations. I note Mr Buttigieg’s observation that the benefits to Ausgrid might seem ‘intuitively correct’. I agree with his observation and would add that the relocations made operational and business sense.

[67] I turn then to the focus on the Union’s case on the one hour travel benchmark. Firstly, it is important to appreciate that in all of the disputed cases, it is not an additional one hour travel time. For example, in Mr Smith’s case, using Google Maps, it is an additional 22 minutes, Mr Pilgrim an additional 15 minutes, and Mr Whittington’s case no additional time at all. Others have a longer additional travel time.

[68] In Application by Spotless Australia Limited [2016] FWC 4505, I had cause to consider whether an employee was entitled to redundancy pay, under s 120 of the Act, in circumstances where an employee rejected two offers of redeployment, primarily because of the extra time of distances involved in travel from her usual place of work. The applicant had worked in the Canteen at the Caltex Oil Refinery at Kurnell, NSW and lived in Kurnell. The respondent, Spotless, provided evidence of the times and distances between the applicant’s home and the Refinery and her home and two comparable positions at GlaxoSmithKline, Rydemere and Sydney Airport. At para [17]-[18] the comparisons are set out:

[17] In his evidence, Mr Stewart included research he had undertaking of travel times from Ms Ilsley’s home to GSK and the Airport. From Google Maps, he ascertained the following:

•  to Caltex	1.8 km	(four minutes)
•  to GSK	43.6 km	(one hour, seven minutes)
•  to Airport	24.6 km	(38 minutes)

[18] In determining what might be reasonable travel times, it was Mr Stewart’s view that rather than starting from a point of three minutes, a more reasonable test was to assess the additional travel time against the average travel commute time for Sydney residents. From relevant survey material in 2012-2013, he determined that the average commute time in Sydney was 35 minutes, with an average distance of 15.5 km. Mr Stewart considered that this comparison demonstrated that the travel time to GSK and the Airport was not unreasonable.

[69] In determining the matter, I said at paras [75]-[77]:

[75] Mr Symington also submitted that the extra travel time to Emirates and Mascot would create significant disruption to Ms Ilsley’s family and home life. There was a paucity of evidence to ground this submission. Moreover, it would have been difficult to objectively assess the impact of the changes, given that she had not worked in either job for more than two or three days. Ms Ilsley said was that the distances travelled would impact on her capacity to undertake after school duties for her grandchildren. While I accept that this may have been of real concern, the evidence was non-specific. It was probably an overstatement to describe the impact of working at either location as a significant disruption to home and family life.

[76] That said, given that Ms Ilsley had the convenience of working three minutes from home for over ten years, I can understand her reluctance to accept a position that was not very close to her residence. However, balanced against these circumstances is the obvious fact that for the vast majority of Sydneysiders (including, I dare say, for the majority living at Kurnell), such a convenience could only be dreamed about. In addition, Ms Ilsley’s contract of employment was underpinned by the reality that her location of employment may be subject to change, depending on the operational needs of the business. It is trite to observe that the industry in which she worked is notorious for the winning, losing and competing for contracts. Some might say, she had a ‘pretty good run’ for ten years.

[77] Nevertheless, in my opinion, this case is a classic example where the subjective views of the employee must give way to the objective analysis of whether the alternative positions offered to Ms Ilsley were acceptable. So much so is apparent from the various authorities I have referred to earlier.

[70] Secondly, the ‘waters were muddied’ somewhat by the differences between Ausgrid’s payroll system measure and Google Maps. The payroll system uses suburb to suburb, which I agree, is less accurate than Google Maps. In my experience, Google Maps is the most up to date and relevantly accurate means of establishing times and distances between locations. It was the system preferred by Ausgrid and I see no basis to criticise or impugn it. To suggest that driving the route personally was preferable, gives no more than a snapshot of one journey, with all of the variables and idiosyncrasies one journey might involve. It would not be a reliable indicator, unless conducted on numerous times and in variable conditions. Google Maps is the most accurate and consequently the most utilised measure, as it was here.

[71] Thirdly, Mr Buttigieg strongly denied Ausgrid’s submission that there had been an ‘agreed’ view from the Union that one hour was the benchmark. True it is there is no document which either expressly, or impliedly demonstrates the Union’s agreement. I note the careful words used by Mr Rigney did not suggest agreement. In any event, the issue is not whether the Union agreed, but whether one hour is reasonable. Support for this proposition comes from the Work Safe Guidelines and Ausgrid Fatigue Management Policy; see: para [32] above.

[72] Moreover, one must accept that the benefits of living close to the workplace is ideal, but for the vast majority of employees, lengthy travel to and from work in horrid traffic congestion is regrettably, a fact of working life. I note of course that the travel time in this case is not in the notoriously bad Sydney CBD and other Sydney environs.

[73] In my opinion, in accordance with the earlier matters referred to and balancing the alleviating measures put in place, a period of about one hour travel time to work is not unreasonable, unsafe or excessively onerous - all other things being equal - for an employee in contemporary society. I say ‘about one hour’ as I do not intend to be so proscriptive as to conclude the time benchmark should be exactly one hour.

CONCLUSION

[74] The parties have asked the Commission to answer slightly different questions, in resolving this dispute. Given their questions are simply a different way of resolving the essence of this dispute; I can answer them both without fear of confusion. I set out the questions and answers below:

For the Union:

1) Has the respondent complied with its obligations under the consultation clause of the Agreement?

Answer: Yes

2) Was the respondent entitled to direct the employees to relocate in the circumstances as the consultation occurred?

Answer: Yes

3) On the merits of the information available to the respondent in consultation, should the respondent have excluded some, or all of the disputing employees from its direction to transfer to new depots?

Answer: No

4) What measures in accordance with clause 5 are the respondent required to take to avert or mitigate the adverse effects of the transfer of the employees?

Answer: Unnecessary to answer

For Ausgrid:

•  Whether Ausgrid has the right to direct employees to change their location of work?

Answer: Yes

•  Whether the direction to relocate is reasonable?

Answer: Yes

DEPUTY PRESIDENT

Appearances:

Mr M Buttigieg and Mr D Austin for the Union.

Mr S Woodbury, Solicitor and Mr G McDonald for the Company.

Hearing details:

2018:

Sydney:

June 4.

Printed by authority of the Commonwealth Government Printer

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