Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Jemena Asset Management Pty Ltd

[2016] FWC 6494

[2016] FWC 6494

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Jemena Asset Management Pty Ltd
(C2016/3594)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 7 OCTOBER 2016

Alleged dispute about implementation and enforcement of existing policy; changes to fleet management and vehicle practices, procedures and processes; major changes; significant effects; obligation to consult under agreement; jurisdictional objection; whether Commission has jurisdiction to deal with dispute under dispute settlement procedure.

Introduction

[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Applicant) and certain of its members employed by Jemena Asset Management Pty Ltd (Respondent) are covered by the Jemena Asset Management – ETU Victorian Electricity Enterprise Agreement 2013 (Agreement). The Agreement was approved by me on 12 June 2014 and pursuant to s.54 of the Fair Work Act 2009 (Act) commenced to operate on 19 June 2014 with a nominal expiry date of 31 August 2016. The Respondent is also covered by the Agreement.

[2] On 2 May 2016, the Applicant applied pursuant to s.739 of the Act for the Fair Work Commission (Commission) to deal with a dispute in accordance with the dispute settlement procedure (DSP) contained in the Agreement.

[3] The Respondent is part of the Jemena Group, which owns and operates electricity, gas and water infrastructure assets throughout Australia. The Respondent employs members of the Applicant in relation to the electricity distribution component of the enterprise. 1

[4] The application was lodged as a consequence of changes being made by the Respondent to its fleet management and vehicle practices, procedures and processes. The Applicant says that the Respondent has been attempting to recover company vehicles from some employees. The Applicant disputes the right of the Respondent to do so and, in addition, the Applicant’s position is that the changes are having a major and significant impact on numerous employees. 2

The issue in dispute

[5] The dispute concerns the application of clause 4.3 of the Agreement. The Applicant submits that the Respondent has failed to comply with clause 4.3, which provides as follows:

“4.3.2 Where the Employer has made a decision to introduce major changes in production, workplace location, program, organisation structure or technology that will have significant effects on Employees, the Employer shall notify the Employees who are directly affected and the Employee representatives as soon as a decision is made.

4.3.3 …implementation of proposed changes will not be effected until agreement is reached between a majority of Employees affected and the Employer.”

[6] The Respondent contends that the Commission does not have jurisdiction to deal with the dispute under the DSP because, it says, this dispute is not in relation to “the application of the Agreement and/or the NES”. 3 The Respondent argues that it is merely seeking to implement an existing policy (Vehicle Policy) and that this is not the introduction of a change to which clause 4.3 of the Agreement refers. It is a dispute about whether the Respondent should be able to enforce a long standing policy. The Respondent submits that there is nothing in the Agreement which prevents it from enforcing the Vehicle Policy unilaterally and in that case, there is no dispute of a kind that enlivens the DSP.4

[7] The Respondent says that clause 4.3 does not apply because the clause pertains to the introduction of “…major changes in production, workplace location, program, organisation structure or technology that will have significant effects on employees”. It says that only disputes concerning changes answering the aforementioned description can enliven the DSP by reason of clause 4.3.4. 5

[8] The Respondent submits that clause 4.3 does not apply, for the reasons set out below:

• a change is not being made;



• there is no change in relation to “production, workplace location, program organisation structure or technology”;



• implementation of the Vehicle Policy is not a “major” change; and



• it is not a change that will cause “significant effects”. 6

[9] The Respondent also submitted that the only basis upon which the Commission would be seized with jurisdiction is if clause 4.3 of the Agreement had application. The Applicant seemed, in its oral submission, to accept this proposition. 7 I am not persuaded that this is correct. Fundamentally, the parties are at odds as to whether clause 4.3 has application in the circumstances. This, it seems to me, is aptly described as a dispute “over the application of the Agreement” within the meaning of clause 2.1.2.

[10] Clause 4.3.4 of the Agreement confers a jurisdiction to resolve disputes if agreement to implement change is not reached as contemplated by clause 4.3.3 of the Agreement. Self-evidently, the vehicle in clause 4.3.4 is not available if the change in dispute is not one within the ambit of the clause.

[11] I consider that I have jurisdiction to resolve, by arbitration, the first mentioned dispute over the application of the Agreement by determining whether clause 4.3 has any application. In doing so, the secondary “jurisdictional objection” is necessarily determined.

[12] The Respondent says that the use of company vehicles is the subject of the Vehicle Policy, which is a formal, written policy. 8 The Vehicle Policy was updated by the Respondent in 20089 and has been in its present form since September 2013.10 The Vehicle Policy regulates the assignment of company vehicles to employees for both work-related and non-work related purposes.11

[13] The Respondent says that an analysis was conducted in December 2014 in relation to the provision of company vehicles to employees. The review revealed that some vehicles were being allocated and used by employees contrary to the terms of the Vehicle Policy, and consequently, the Respondent initiated steps to ensure that vehicle allocation was aligned with the Vehicle Policy. 12

[14] The Applicant says that employees should be able to continue using the Respondent’s company vehicles as they have in the past. 13 In effect, the Applicant says that that which the Respondent proposes to do in relation to motor vehicle usage by employees covered by the Agreement is a major change to which clause 4.3 applies. Consequently, the proposed change cannot be implemented until “agreement is reached between a majority of Employees affected and the Employer”.14

Consideration

Is there a “change”?

[15] The Applicant describes the “change” in respect of which clause 4.3 of the Agreement is engaged as a change in the Respondent’s fleet management and vehicle practices, processes and procedures. 15 It does not seem to be in contention that the Respondent’s Vehicle Policy existed before the Agreement commenced to operate. There is some dispute about the extent to which there was consultation about, and notice of, the introduction of the Vehicle Policy. But that is not the subject matter of this dispute, and in any event, it is not one that can be dealt with by recourse to the DSP of this Agreement. The “change” identified by the Applicant is change to the practice of the Respondent to require adherence to the Vehicle Policy and to allocate, or to withdraw the allocation of motor vehicles to particular employees.

[16] The Respondent says that the action being taken is not a “change” because it is merely seeking to implement an existing policy. 16

[17] Accepting for present purposes, that the Respondent had an existent vehicle policy and that all it was seeking to do was to implement that policy, it does not follow that the decision to implement the policy in the circumstances cannot fairly be described as a “change”. The circumstances in which the Respondent decided to embark upon the course which is said by the Applicant to constitute a “change” are set out in the evidence of Mr David Tossell, the Electricity Maintenance Manager as follows:

“19. It also came to Jemena’s attention in the course of the Fleet Reconciliation Project that a number of employees had developed motor vehicle usage practices that were not consistent with the use stipulated in their contract of employment and/or the MV Policy. In particular:

(a) some employees had developed a practice of using the company motor vehicle to drive home when they were due to commence work at a client’s site the next day and then using the same vehicle for non-work related activities, including on weekends (contrary to the MV Policy); and

(b) some employees had been using company motor vehicles for commuter and private use where there was no endorsed business reason (which is also not consistent with the MV Policy).

20. In light of this, commencing in or around October 2015, Jemena decided to take steps to ensure that all future motor vehicle use is consistent with the MV Policy and applicable contracts of employment. The employees affected can be broken down into the following categories:

(a) employees who are currently allocated a Tool of Trade vehicle but where the allocation of a vehicle is no longer considered an essential requirement in order for them to perform their current, normal duties. This category includes employees whose duties have changed since they were originally allocated a company motor vehicle and employees who are currently allocated a Tool of Trade vehicle but who drive the vehicle less than 16,000km per year for work-related purposes (Category 1 Employees).

Category 1 Employees have been issued with a letter advising them that Jemena has determined that a Tool of Trade Vehicle is no longer required for their role and that they must return the vehicle that is currently allocated to them. Jemena has provided each of these employees at least three months’ notice before they are required to return the vehicle, to enable them to make alternative transport arrangements. Many of these employees have now returned the vehicle that was allocated to them.

(b) Field Workers whose role requires the use of a Field Operations/ Work Facility vehicle and who start and finish on site and/or are on availability (that is rostered to perform emergency response) (Category 2 Employees).

Category 2 Employees have been issued with a letter clarifying how the MV Policy operates and advising them that they are permitted to take the Field Operations/ Work Facility vehicle home if they are starting and finishing on site as directed by the business and may utilise the vehicle when on availability, in accordance with the Field Worker Availability and Shift Roster Procedure/Guideline. The letter also advised that written approval is required to take the vehicle home for any other reason.

(c) Field Workers whose role requires the use of a Field Operations/ Work Facility vehicle but who start and finish in the depot are required to return the vehicle at the end of their shift (except for time when they are rostered on availability) (Category 3 Employees).

Category 3 Employees have been issued with a letter reminding them that employees are responsible for their own transport to and from work and may only take a Field Operations/ Work Facility vehicle home if they are on availability or required to start work on site before going to the depot.” 17

[18] The suggestion by Mr Tossell in the extract above that “a number of employees had developed motor vehicle usage practices” to describe that which was evidently occurring, is with respect somewhat self-serving. Established employee practices which are at variance with policy do not tend to develop unilaterally. Rather, there is always an element of acquiescence or mismanagement on the part of those responsible for supervising compliance which allows such practices to develop and be maintained.

[19] It seems to me, when the evidence is viewed in its totality, some employees of the Respondent had been permitted to use motor vehicles in a manner that was contrary to the Vehicle Policy. The fleet reconciliation project identified this as an issue. The decision by the Respondent, to which Mr Tossell refers in his evidence, seeks to realign practice with policy. The decision to no longer allow a practice related to motor vehicle usage which is contrary to the Vehicle Policy to continue, is on any view, a decision to introduce a change.

Is the change in relation to “production, workplace location, program, organisation, structure or technology”?

[20] It seems to be accepted that clause 4.3.2 of the Agreement should contain a comma between the words “organisation” and “structure”. That grammatical construct seems consistent with the consultation term envisioned in the Termination, Change and Redundancy (TCR) case. 18 Putting to one side the question whether the change as identified is a “major change”, a decision to introduce a change or changes will not fall within the ambit of clause 4.3 unless the change or changes are in “production, workplace location, program, organisation, structure or technology”.

[21] The phrase “major change in production, workplace location, program, organisation, structure or technology” traces its origins to the TCR case. 19

[22] In the TCR case, a Full Bench of the Australian Conciliation and Arbitration Commission determined to include a term in an award that required:

“…consultation take place with employees and their representatives as soon as a firm decision has been taken about major changes in production, program, organization, structure or technology which are likely to have significant effects on employees.” 20

[23] The Applicant submits that the decision to enforce the Vehicle Policy is a change in “program” within the meaning of clause 4.3.2 of the Agreement. 21 It says that “program” means “a plan or policy to be followed”.22

[24] To make good its submission, the Applicant points to the decision in MUA v DP World & Ors[2013] FWC 2394 in which the Commission dealt with a dispute about the content and implementation of a Drug and Alcohol Policy. The Applicant contends that the relevant consultation clause (clause 22) in DP World is similar to that found in the Agreement in that both clauses require the change to be in respect of “production, program, organisation, structure or technology” and to have significant effects on employees. 23

[25] The Applicant also says that the change is a change in production, organisation and/or structure. It points to dictionary definitions of the words “production”, “organisation”, and “structure” and relies on a decision of the Australian Industrial Relations Commission in MCC v ASU[2007] AIRC 116 to make good its proposition. It says that the change identified is a change in:

“a. production as it relates to the way the Jemena employees’ effect their travel so as to allow them to produce their work;

b. organisation as it relates to the way that Jemena:

i. organises it fleet of vehicles in respect of its employees so as to allow them to travel to, from and in between their work, and compensate such employees for doing so;

ii. coordinates its fleet of vehicles which are a part or element of Jemena’s operations; and/or

iii. systematically arranges it fleet of vehicles.

c. structure as it relates to Jemena’s mode of organisation of its fleet of vehicles, and arrangement of the parts of its fleet of vehicles, in respect of its employees.” 24

[26] The decision in MCC concerned a dispute about a change to a hot weather policy. In determining the dispute, Commissioner Grainger said:

“[27] The fundamental issue before the Commission on this aspect of this matter is whethr or not the 2006 Policy was introduced and subsequently applied in accordance with requirements of clause 14 of the Agreement relating to consultation. The requirement to consult under clause 14 is confined to a specific set of five action fields – production, program, organisation, structure or technology. The Shorter Oxford English Dictionary relevantly defines these terms as follows:-

• Production – the action of producing; the fact or condition of being produced



• Program – a definite plan of any proceedings



• Organisation – the action of organizing, or condition of being organized, as a living being; an organized structure, body or being.



• Structure – the way in which an edifice, machine etc is made or put together



• Technology – the scientific study of the practical or industrial arts

I am satisfied that the 2006 Policy does come within the scope of ‘production’ and ‘organisation’ since it relates to the way in which MCC’s outdoor staff produce and organise their work in hot weather conditions.” 25

[27] The Respondent submits that the change cannot be characterised as a change to any aspect of the Respondent’s business which is contemplated by clause 4.3 of the Agreement. It says the change is not a change in production, workplace location, program, organisation, structure or technology. The Respondent submits that its decision is no more than a decision to enforce a policy that, at worst, was not previously enforced as vigorously as it is now proposed. 26

[28] The general approach to the construction of industrial instruments of the kind at issue here is to begin with a consideration of the ordinary meaning of its words having regard to the context and purpose of the provision or expression being construed. 27 A narrow pedantic approach to interpretation should be avoided, and a search for the evident purpose is permissible with meanings which avoid inconvenience or injustice also permissible but within reasonable bounds; however, the task remains one of interpreting an industrial instrument produced by another or others and a court or tribunal is not free to give effect to some anteriorly derived notion of a result that would be fair or just, regardless of that which has been written into the instrument being considered.28

[29] Turning first to the question whether the change identified is a “change in program”. I do not consider it helpful to point to one of a number of dictionary definitions which set out various meanings of the word “program” and then to seek to shoehorn the word “program” as used in clause 4.3 of the Agreement into the preferred meaning identified by a dictionary. This approach ignores context. Clause 4.3 deals with the introduction of change and begins with a recognition that “from time to time the manning levels, skill mix, technology and processes of the business will need to change to allow the business to operate more efficiently and competitively”.

[30] Each of these identified areas speak to the manner in which the business undertaken by the Respondent is being carried out. The phrase “a decision to introduce major changes in production, work location, program, organisation, structure or technology” found in clause 4.3.2 is to be understood in that context. So for example, “production” speaks to the “what” and the “how” of the activities for which the business exists are carried out or produced and “work location” speaks to the place or places at which the business activities are carried out.

[31] Understood in its proper context, the word “program” describes the program of work aimed at ensuring that the activities for which the business exists are carried out. To that extent it is apt to describe the word “program” as meaning a “plan” or even a “policy” as suggested by the Applicant, but not any plan or policy. It is a plan or policy for the work or activities of the business to be carried out.

[32] The decision in DP World is of no assistance to the Applicant. First, it may be distinguished because the consultation term at issue provided, inter alia, that the employer was obliged to “carry out its responsibilities in accordance with Company policies and additionally, where such policies relating to production, program, organisation and technology may also affect the rights and interests of its Employees, Company management is also obligated to consider the rights and interests of its Employees in the implementation of such policies.” 29 The term itself clearly engaged with policies. Clause 4.3 of the Agreement does not. In any event, the issue here is not a dispute about a change in policy, it is a dispute about a decision to enforce an existing policy. Secondly, and with respect, the reasoning in determining that the word “program” in the clause at issue means “a plan or policy to be followed” is somewhat circular and begs the question: what subject matter does the policy regulate?30 Thirdly, the finding in DP World was that the policy at issue “related” to a company program.31 The decision was not that the policy was a program within the meaning of the consultation clause but rather that the policy related to a program and this was enough to engage the clause. Self-evidently such a connection is not apparent in clause 4.3 of the Agreement. Fourthly, the dispute the subject of this application is not about the introduction of, or a change to, a policy. It is about the elimination of a practice which is contrary to an existing policy. The ratio in DP World does not stand for a proposition that “program” means “a practice”.

[33] The change identified which is the subject of this dispute is not a change in the program of work. It therefore follows that the change is not a change in “program” within the meaning of clause 4.3.2 of the Agreement.

[34] Turning next to the question whether the change identified is a change in “production”, “organisation” and/or “structure”.

[35] I do not accept the propositions advanced by the Applicant as earlier summarised in support of its proposition that the change identified is a change in production, organisation and/or structure. In essence, the change identified is a change in the capacity of certain employees of the Respondent to utilise the Respondent’s motor vehicles to travel to and from work and for private purposes. The analysis proposed by the Applicant ignores the word “in” that appears after the words “major changes” in clause 4.3.2 of the Agreement. To come within the ambit of clause 4.3, the change identified must be a change “in”, relevantly, production, organisation or structure. The subject matter of the change identified does not fall within the description. To deprive an employee of the use of the motor vehicle to travel to and from work or for private purposes, or to limit such use does not involve a change in “production”. It does not alter the way in which the activities for which the business exists are carried out. It alters the way in which an employee arrives at work, but once at work the activities being carried out are the same. Nor does it alter the organisation, as again, once the employee arrives at work, the organisation is unchanged. The same may be said of structure.

[36] Not every change which may have a deleterious effect on employees of the Respondent, or on the conditions or benefits derived from employment fall within the ambit of clause 4.3. The change must be a major change and the change must be “in” one or more of the areas identified. In my view, the change identified, namely a decision by the Respondent to enforce an existing policy which previously was not enforced or at least not strictly enforced, is not a change in any one or more of the areas identified in clause 4.3.2 of the Agreement.

[37] In the circumstances, clause 4.3 is not engaged by the Respondent’s decision. It is unnecessary, therefore, for me to deal with the other submissions which concern whether the change identified is a “major change” and whether the decision to introduce the change will have “significant effects” on employees affected by the change.

Conclusion

[38] For the reasons given above, the decision by the Respondent to enforce the Vehicle Policy which previously was not enforced or at least not strictly enforced is not a change in any one or more of the areas identified in clause 4.3.2 of the Agreement. Consequently, clause 4.3 is not engaged by reason of that decision.

[39] The dispute is determined accordingly. No orders are necessary.

DEPUTY PRESIDENT

Appearances:

Mr G. Borenstein for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

Mr J. Snaden of Counsel for Jemena Asset Management Pty Ltd.

Hearing details:

2016.

Melbourne.

August 8.

Final submissions:

Supplementary Submissions of the Applicant, 12 August 2016.

Respondent’s Supplementary Submission on Jurisdiction, 15 August 2016.

 1   Respondent’s Outline of Submissions on Jurisdiction.

 2   Outline of Submissions of the Applicant.

 3   Jemena Asset Management – ETU Victorian Electricity Enterprise Agreement 2013, clause 2.1.2.

 4   Respondent’s Outline of Submissions on Jurisdiction at [4.2].

 5   Ibid at [5.1].

 6   Outline of Submissions of the Applicant.

 7   Transcript PN737.

 8 Respondent’s Outline of Submissions on Jurisdiction at [2.1]; Exhibit 2 at [7].

 9 Exhibit 2 at [8].

 10   Respondent’s Outline of Submissions on Jurisdiction at [2.1].

 11   Ibid.

 12   Ibid at [2.2] – [2.3].

 13   Ibid at [2.4].

 14   Clause 4.3.3

 15 Outline of Submissions of the Applicant at [3].

 16   Respondent’s Outline of Submissions on Jurisdiction at [5.4].

 17   Exhibit 1 at [19] – [20].

 18   Termination, Change and Redundancy Case [1984] 8 IR.

 19 Outline of Submissions of the Applicant at [12].

 20   Termination, Change and Redundancy Case [1984] 8 IR at [52].

 21 Outline of Submissions of the Applicant at [16].

 22   Macquarie Dictionary (5th Ed).

 23   Outline of Submissions of the Applicant at [18] – [20]; see also [2013] FWC 2394 at [33].

 24 Outline of Submissions of Applicant at [30].

 25   [2007] AIRC 116 at [27].

 26   Respondent’s Outline of Submissions on Jurisdiction at [5.5].

 27   See Short v FW Hercus Pty Ltd (1993) 40 FCR 511; Australian Municipal, Clerical and Services union v Treasurer of the Commonwealth of Australia (1998)80 IR 345; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426; Amcor Limited v CFMEU (2005) 222 CLR 241; Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited[2014] FWCFB 7447.

 28   Kucks v CSR Limited (1966) 66 IR 182.

 29   [2013] FWC 2394 at [33]; see also DP World Brisbane Enterprise Agreement 2011; DP World Fremantle Enterprise Agreement 2011; DP World Melbourne Enterprise Agreement 2011; and DP World Sydney Enterprise Agreement.

 30   [2013] FWC 2394 at [38], the fourth and fifth sentences.

 31   [2013] FWC 2394 at [38], the third sentence.

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