Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Retail FM Pty Ltd

[2015] FWC 4763

[2015] FWC 4763

FAIR WORK COMMISSION

STATEMENT

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
Retail FM Pty Ltd
(C2015/2277)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 14 JULY 2015

Summary: misuse of dispute procedure - status quo provision - business case for changing roster.

[1] This Statement follows a dispute notice lodged by the CEPU (plumbing division) Queensland in respect of changes made to the night work roster at Retail FM Pty Ltd (“the employer”) on 27 March 2015. It has not been possible through conciliation to bring a resolution to the matters in dispute, despite some iteration over a particular proposal (to which I will refer below). Further, whilst the employer has agreed to the Commission to make a recommendation in respect of the matters in dispute, for the reasons given below the CEPU contends that it is no longer in dispute with the employer and does not seek any further intervention from the Commission in respect of the dispute notice it lodged.

Background

[2] The work performed by the employer is regulated by the Retail FM Pty Ltd Services Division Queensland and CEPU Plumbing Division Agreement 2012 – 2015 (“the Agreement”).

[3] The employer notified the relevant unions in late 2014 as to a proposal to align its service delivery with its customer needs. A further communication took place on 10 March 2015.

[4] The employer provides refrigeration maintenance and repair services and had for a lengthy period of time, it appears, conducted a night work roster. The employer contended that the operation of a night work roster was no longer commercially sustainable for the business given that there had been a very significant shift in demand from its principal client.

[5] Specifically, the employer identified that over the past 12 months there had been a decline in callouts relating to the night shift of almost 40%, and that a further decline was anticipated. The further decline is anticipated because the customer had implemented various call reduction initiatives aimed to improve its efficiency in managing its repair and maintenance requirements (and its own costs). The detail of the changed business circumstances was explored at the conciliation conference.

[6] On 10 March 2015, the employer indicated to the relevant employees and the CEPU that it intended to cease the night work roster, effective as of 7 April 2015. The 14 employees who performed duties within the night work roster were to be redeployed within the normal hours of the business.

[7] The 14 employees will lose considerable earnings as a result of the loss of the penalties which apply to night work rosters.

[8] The employer - through the conciliation process - has offered to provide transitional compensation, if I can call it that, to the affected employees (in the order of a payment equivalent to 62% of the 50% loading for the 38 hour night roster). The transitional compensation was proposed to operate for the period through to 30 September 2015.

[9] The employer appears to have suspended its proposal to delay the introduction of the withdrawal of the night roster in the context of the status quo provision within the disputes clause, which provides relevantly as follows:

38.2 Where a dispute arises all parties shall seek to reinstate the situation to the status quo as it existed prior to issue in dispute arose. (sic)

[10] The proposed transitional compensation has been rejected by the CEPU and its members. The CEPU contends that because the status quo provision now applies the matter of the cessation of the night shift should be put aside for the purposes of discussion in the forthcoming agreement negotiations. The CEPU, as a consequence, claimed it was no longer in dispute with the employer (as the status quo prevailed and the business decision - to remove the night work roster - had not been implemented).

[11] Presumably, because of its position in this regard, the CEPU does not seek the Commission to further intervene in the matter.

[12] The dispute resolution clause provides for a stepped procedure, ending in the scope for either party to have the dispute referred to mediation and/or arbitration.

[13] The status quo function within the disputes clause is a measure of an interim nature pending the resolution of the dispute by agreement between the parties or through the intervention of a third party (in the terms of the disputes procedure).

[14] The status quo function is not a device by which a party may forestall decision-making on the part of the business for any period of time or for any purpose not related to the stepped dispute resolution procedure.

The dispute

[15] The CEPU contends that the employer has no power to unilaterally withdraw the night shift roster.

[16] The CEPU contends that the hours of work clause within the Agreement fixes the hours of work, and that if the employer wishes for the night shift to be removed then “this is a matter for bargaining and better dealt with at the negotiations” (with the Agreement reaching its nominal expiry date in October 2015).

[17] To support its argument that the hours of work in the business are fixed, the CEPU contends that:

• Clause 15.2 of the Agreement is headed, “Night Work”.



• Subclause 15.2.1 is headed, “Spread of Hours”, and reads:

“The spread of ordinary hours for night work will be 5.00 PM to 3:30 AM, Monday to Thursday, depending on customer requirement. Any change to this will occur in consultation with the employees impacted.”

• Subclause 15.2.2 is headed, “Duration of night work”. The sub clause provides:

“Night work will continue for a full week.”

• Sub clause 15.2.3 is headed, “Hours of night work”, and provides:

“Night work ordinary hours will be 10 hours with an additional half-hour for an unpaid meal break […].

• Sub clause 15.2.5 is headed, “Rostering of night work”, and provides:

“Employees will be rostered on night work not more than once every four weeks except by agreement between Management and the employees. Any disagreements that arise in relation to rostering will be dealt with as per the consultation clause within this agreement.”

[18] The CEPU contends that the reference in the above sub clauses to “will” rather than “may” demonstrates that the terms relating to night shift are not facilitative, but “detail how night shift is to occur during the life of the Agreement.”

[19] That is, there can be no changes to the night shift roster, and that “there is nothing within the Agreement or clause 15.2 that allows the employer to unilaterally withdraw the night shift roster.”

Comment

[20] The Agreement does not regulate the procedure by which an employer may cease to cause a roster to operate, other than by way of the requirement to consider a change of such a magnitude through the consultation clause in the Agreement.

[21] The Plumbing and Sprinkler Fitters Award 2010 provides no contrary indication.

[22] The clauses referred to above concern the circumstances of the night shift when it is in operation (the spread of ordinary hours for the night shift, the duration of a night shift - in terms of the duration of the roster and the number of hours worked within each shift - and the rotation arrangements).

[23] The clauses do not inhibit the scope for an employer to cause the night roster to not operate owing to business circumstances.

[24] Indeed, it would be counter intuitive for such an addition to be included in the Agreement given that one of the stated intentions of the Agreement (at sub clause 7.1 of the Agreement) is to:

“Provide for an efficient, progressive and prosperous refrigeration maintenance and services industry to the benefit of the company and its employees.”

[25] Similarly, sub clause 7.2 of the Agreement provides that the parties are committed to jointly seek to:

“Focus [on] and strive for low maintenance and service quality workmanship and best use of the resources of the employer.” (sic)

[26] I further note that sub clause 7.9 of the Agreement states that the parties, through the Agreement, seek to:

“Promote the concept of “best practice” that is internationally recognised to ensure the company maintains a competitive edge in the marketplace.”

[27] It would appear to me that it would be unlikely in the stated context of the objectives of the Agreement for the Agreement to introduce fixity in respect of changes to rostering practices.

[28] Sub clause 7.8 of the Agreement - contrary to the delay sought to resolve this dispute through bargaining processes later this year - commits the parties to seeking to:

“Provide for an immediate response to issues affecting productivity […] such as industrial disputation [….].”

[29] The withdrawal of the night roster has a significant impact on employees’ earnings because it includes a 50% loading on the ordinary rate of pay for each hour worked in the 10 hour shift.

[30] The employer has sought to consult with the affected employees and the CEPU in accordance with the consultation clause, and has set out in express proposals to mitigate the effects of that change on the employees (for a transitional period).

[31] From the employees’ perspective there will never be adequate compensation, because their losses in respect of their historical remuneration will be real and sustained.

[32] But from what has been put before me, the business circumstances giving rise to the change in rostering practices are genuine. The withdrawal of the night roster is a necessary response to those changing circumstances. There is no particular term of the Agreement that inhibits the employer’s response to such circumstances in respect of roster changes. Indeed, the broad objectives of the Agreement indicate the Agreement is intended to support business efficiency and responsiveness to changing market situations.

[33] In my view, a short, further period of consultation should continue as to the possibility of an agreement being reached on the transitional compensation to which I have referred to above (as a means of mitigating the effect of the major change). As this dispute has been long-running, failing agreement, the employer may at its discretion effect the roster change as necessary.

[34] The arbitral pathway remains open to the parties.

SENIOR DEPUTY PRESIDENT

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