Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Limited T/A Telstra - [2022] FWC 2343

[2022] FWC 2343

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

Telstra Corporation Limited T/A Telstra

(C2021/8420)

COMMISSIONER MATHESON

SYDNEY, 5 SEPTEMBER 2022

Application to deal with a dispute about matters arising under an enterprise agreement – Telstra Enterprise Agreement 2019-2021 – dispute regarding status of employees – whether employees were engaged as, or agreed to become, shiftworkers – whether employees who are shiftworkers have the right to unilaterally cease being shiftworkers – whether group flexibility agreement required.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Applicant) has made an application to the Fair Work Commission (Commission) pursuant to s.739 of the Fair Work Act 2009 (Cth) (Act) seeking the determination of a dispute relating to shiftwork and the status of certain cohorts of employees under the Telstra Enterprise Agreement 2019-2021 (Agreement). The respondent in the matter is Telstra Corporation Limited T/A Telstra (Respondent), the employer covered by the Agreement.

Background

On 21 July 2021, the Respondent advised the Applicant about a proposal to change shift arrangements from 12.25 hour shifts to 12 hour shifts (including paid breaks). The changes impact approximately 25 technical employees working various shifts, including 12.25 hour shifts. Among the work carried out by these employees is the maintenance of the Respondent’s telephone, telex and data exchanges in Sydney, suburban and regional areas including the clearing of faults. These are the largest exchanges in Australia and are known as “Priority 1” or “P1” exchanges. Given the importance of this work in preventing and addressing network outages, the employees impacted by this dispute are rostered in a way that provides coverage for 24 hours per day, seven days per week. The majority of employees impacted by the dispute are long serving and have skills and familiarity with the Respondent’s technology and infrastructure such that they play a key role in preventing and addressing critical outages.

There are two key cohorts of employees that are the subject of this dispute, being the “Roamers” and the “P1 Construction” cohorts. There is also a single employee impacted by the changes, being Elvis Markoski, whose circumstances are, in some ways, unique to him.

The employees impacted by the Respondent’s proposed changes, as represented by the Applicant, oppose the changes.

The changes the Respondent has proposed to shift arrangements result in a reduction in wages. This results from clause 15.4(f)(i) of the Agreement which provides for a 15% additional loading for the whole shift in circumstances where any part of that shift (Monday – Friday) falls outside the span of hours (7am to 7pm). The proposed reduction in the shift length by 15 minutes means the 15% loading is not payable.

The evidence suggests that the financial impact of the proposed changes presents a concern for many of the employees impacted by them. However, during the course of the proceedings, it became apparent that a fundamental concern that employees had was that they would be compelled to continue working night shift and would not be able to “opt out” of “shiftwork” if the Respondent insisted that they were “shiftworkers”, as distinct from day workers who were undertaking “shiftwork” on a voluntary basis.

Even though many of the employees the subject of the dispute have been working shiftwork for a very long period of time, they want a determination that confirms their position that they have a right to unilaterally cease doing so if they wish.

The adequacy of consultation in relation to the proposed changes is not a matter in dispute. However, it seems that, before the events leading up to this dispute, management and employees had a history of working collaboratively to identify solutions and develop roster arrangements that worked for both employees and the Respondent. The communication of the changes now proposed by the Respondent appear to be the catalyst for employees wanting a determination in relation to their status, potentially because the changes proposed will see a reduction in the benefits associated with continuing to work in the way that they have, in some cases, for decades.

While the financial impacts associated with the changes are lesser for the P1 Construction employees than the Roamers, it is apparent that the P1 Construction employees are concerned that, if the Roamers cease to cover weekday night shifts, the P1 Construction employees may be compelled by the Respondent to work weekday night shifts. As such, both the Roamer and P1 Construction cohorts have a common interest in opposing the changes.

The dispute is a complex one and relates to clause 15, clause 22 and Appendix D of the Agreement. Clause 15 is central to the dispute and sets out provisions relating to shiftwork as follows:

15. SCHEDULED WORK AND SHIFTWORK

15.1. Telstra may engage you to work variable hours as set out in this Section. If Telstra does this, your ordinary hours of work will be averaged over the cycle of the work scheduling period.

15.2. Common provisions for scheduled and shiftwork

a)Work schedules will take into account the needs of the business together with your needs and preferences.

Telstra’s intent is to minimise variations in individual start times where this is possible.

b)Telstra will provide you with your schedule a minimum of 2 weeks in advance, and will include details of your start and finish times, your meal break, and any scheduled days off. Scheduled days off are days that you could have been rostered to work ordinary hours, but were not scheduled to work.

c)If Telstra needs to change your schedule, Telstra will give you 7 days’ notice where possible, or 3 days in circumstances where Telstra needs to cover unplanned leave.

d)You may initiate schedule swaps but you need prior approval from your manger to do this, and it must not impact the business.

e)Any unplanned leave you take will be recorded as equal to the amount of time you were scheduled to work that day.

f)You won’t be required to work more than 10 ordinary hours at a time (unless you are working a shift arrangement under clause 15.4(g). Minimum engagement times will be 6 hours in the field and 4 hours in contact centres.

15.3. Scheduled work

a)These provisions about scheduled work apply only to contact centres.

b)Telstra may require you to work within the span of hours, but at variable times and patterns. Telstra will advise you of work scheduling arrangements where they apply, as set out in this clause.

c)If you work in a contact centre, roster arrangements will be prepared and communicated to you in line with the common provisions set out above.

15.4. Shiftwork

a)These provisions apply to employees who have been or are in future engaged as shiftworkers or who agree to become shiftworkers.

b)Telstra may engage you as a shiftworker if it regularly requires you to work outside the span of ordinary hours on Monday to Friday, or to work regularly on weekends.

c)Telstra may ask employees who are not shiftworkers to undertake shiftwork, in which case Telstra will call for volunteers. However, an employee who is not a shiftworker can’t be required by Telstra to become a shiftworker.

d)Where Telstra wants to introduce shiftwork into an area where it doesn’t already operate, Telstra will consult with employees in the area and with unions, under the consultation provisions in Section 6.

e)Temporary shift allowance

i)Sometimes Telstra may ask employees who are not shiftworkers to become shiftworkers on a temporary basis to fill vacancies on a shift roster, and Telstra may call for volunteers. Where you and Telstra agree to you undertaking temporary shiftwork Telstra will pay you an allowance to make yourself available to perform temporary shift work. Participation in undertaking temporary shiftwork is voluntary. See Section 13 for the amount of the allowance.

ii)While you receive the temporary shift allowance, you will be subject to all conditions that apply to shiftwork.

iii)You or Telstra can opt out of the temporary shift arrangements on a quarterly basis. Accordingly, ongoing payment of the allowance is not guaranteed. You may ask to cease receiving the allowance and stop undertaking the temporary shiftwork before the completion of 3 months. Taking into account your particular circumstances, Telstra will not unreasonably refuse the request.

iv)If you receive this allowance but unreasonably refuse to work shiftwork, Telstra may discontinue paying the allowance immediately and you will no longer be required to undertake temporary shiftwork.

v)Payment of the allowance will continue during periods of paid leave.

f)Payment for shiftwork

i)If any part of your shift on a Monday to Friday falls outside the span of hours, Telstra will pay you an additional payment of 15% for the whole shift.

ii)If you work on a Saturday, Telstra will pay you an additional payment of 50% for all time worked on that shift between midnight Friday and midnight Saturday.

iii)If you work on a Sunday, Telstra will pay you an additional payment of 100% for all time worked on that shift between midnight Saturday and midnight Sunday.

iv)If you are required to work shifts that fall wholly between the hours of 6.00pm and 8.00am for a period exceeding 4 weeks, Telstra will pay you an additional payment of 30% for all time worked on those shifts.

v)Additional payments are not cumulative. Only the highest applicable payment will apply.

g)Extended Shift Arrangements

i)Telstra may implement shifts of up to 12 hours in accordance with the Extended Shift Arrangement Guidelines (see Appendix D). The Extended Shift Arrangement Guidelines supplement the provisions in this Section.

ii)For the avoidance of doubt, where you regularly perform shifts of up to 10 hours in length, Telstra may ask, but will not require, you to perform extended shifts.

As stated in clause 15.4(a) of the Agreement, the provisions in clause 15.4 of the Agreement apply to employees who have been or are in future engaged as shiftworkers or who agree to become shiftworkers (emphasis added).

Clause 15.4(c) of the Agreement provides that the Respondent may ask employees who are not shiftworkers to undertake shiftwork, in which case it will call for volunteers. However, an employee who is not a shiftworker can’t be required to become a shiftworker. In other words, an employee who is not a shiftworker can’t be compelled to work shiftwork or become a shiftworker.

It is not in dispute that many employees the subject of this dispute have been working shiftwork for a long period of time. The Applicant submits that the existing arrangement for some of these employees arose under a certified agreement known as the Twelve Hour Shift Operations Agreement 1990 (1990 Agreement), which continued to have effect until 2015. The Telstra Enterprise Agreement 2012-2015 contained the following clause:

“12 hour shifts

The Twelve Hour Shift Operations Agreement 1990 applies to all 12 hour shift arrangements.”

The 1990 Agreement was not specifically called up in the Telstra Enterprise Agreement 2015-2019 (2015 Agreement), but provisions related to “Extended Shifts” were incorporated. These provisions were continued in the current Agreement.

By way of summary, the Respondent’s position is that the employees the subject of this dispute are shiftworkers and it can direct them to work shiftwork and extended shiftwork and make changes to existing shift patterns subject to complying with the terms of the Agreement and the Respondent’s Shift Work and Scheduling Policy.

By way of summary, the Applicant’s position is that the employees the subject of this dispute:

· were not “engaged” as shiftworkers and are not otherwise shiftworkers;

· volunteered to take up shiftwork but are not “permanent” shiftworkers; and

· can opt out of shiftwork at any time.

The Applicant submits that:

· the existing arrangements made under the 1990 Agreement are grandfathered by the Agreement and cannot be unilaterally varied; and

· a group flexibility agreement pursuant to clause 22 of the Agreement is needed if extended shifts are proposed, being shifts in excess of 10 hours.

It is not in dispute that the employees have been working “shiftwork”, however the Applicant submits that they are doing this on a voluntary basis and that this is to be distinguished from an employee being a “shiftworker”.

In effect, the Applicant’s position is that the employees the subject of this dispute cannot be required to work shiftwork and that the employees wish to stop working shiftwork if the Respondent seeks to impose the changes proposed to existing shift arrangements.

The dispute resolution procedure in the Agreement

The dispute resolution term is set out in clause 25 of the Agreement and provides as follows:

25. HOW DISPUTES ARE RESOLVED

25.1. Telstra aims to provide a productive, safe and non discriminatory environment for its employees. This environment should be characterised by co-operation, mutual respect and open communication between employees and managers.

25.2. The Parties want to avoid disputes about things covered in this Agreement, or about the National Employment Standards. But if disputes occur, this is how they must be resolved.

25.3. You may be assisted by your union or another representative of your choice at any step in this process.

25.4. Step 1

Talk to your manager about the issue in dispute as soon as you can and ask him/her to resolve it. Your manager must try to resolve the dispute within 5 working days of you first asking for it to be resolved.

25.5. Step 2

If that doesn’t resolve the dispute, ask your manager’s manager (your 2-up manager) to resolve the dispute. You or your union/representative must do this within 5 working days (or such time as is reasonable in the individual circumstances) of your manager being unable to resolve the dispute. Your 2-up manager must try to resolve the dispute within 5 working days and may seek assistance from a more senior manager if required.

25.6. Step 3

a)If the dispute still hasn’t been resolved, ask the Executive of Transformation and People for your Function and the Executive – Employee Relations in Transformation and People to resolve the dispute. You or your union/representative must do this within 5 working days (or such time as is reasonable in the individual circumstances) of your 2-up manager being unable to resolve the dispute. HR must try to resolve the dispute within 5 working days.

b)While steps 1 to 3 are being followed:

i)you must work normally; and

ii)Telstra must not implement anything that is in dispute.

25.7. Step 4

If the dispute still hasn’t been resolved, you or your union/representative or Telstra may refer the dispute to the Fair Work Commission for conciliation. The Fair Work Commission’s role is limited to providing assistance in an attempt to resolve, if possible, the dispute.

25.8. Step 5

If conciliation does not resolve the dispute you or your union/representative or Telstra may ask the Fair Work Commission to arbitrate the dispute and the Fair Work Commission must do so.

25.9. Other rules applying to disputes

a)To avoid doubt, this process:

i)does not prejudice the position of a party in a genuine health and safety situation; and

ii)applies to disputes over whether Telstra has reasonable business grounds to refuse a request under the National Employment Standards for flexible working arrangements or a request under the National Employment Standards for extended parental leave.

b)While steps 4 and 5 are being followed, Telstra may implement anything that is in dispute. However, if Telstra does, it is not intended to influence the outcome of steps 4 and 5 in any way.

c)You, your union/representative (if you have one) and Telstra must follow each step and not skip any, regardless of the nature of the dispute.

d)You, your union/representative (if you have one) and Telstra must also follow all of the time limits in this dispute resolution process. This is because it is in everyone’s interests that disputes are resolved quickly.

e)Occasionally, there may be a good reason why it is not possible to follow all of the steps or time limits.

Accordingly:

i)the steps and time limits can be waived if you and Executive - Employee Relations, in each case acting reasonably, agree to this, and

ii)you can go straight to step 3 in the case of urgent disputes where the matter in dispute is due to be implemented in the time taken to undertake steps 1 and 2 (i.e, a decision that is due to be finally implemented in the next 15 working days).

f)Where a dispute concerns work which is subject to a procurement code or guidelines, any decision under Step 5 will observe the requirements of the applicable code or guidelines, as in force from time to time.

The Applicant submits as follows in relation to the steps taken to comply with the dispute resolution term:[1]

· The proposed changes were advised by the Respondent’s national human resources group in July 2021 and a number of exchanges occurred at the national level. The Applicant submits this was the equivalent to step 3 discussions and no resolution was reached.

· On 26 September 2021, it wrote to the Respondent seeking a wavier of steps 1-3 and the Respondent refused.

· Four step 1 meetings were held with four step 1 managers and the dispute remained unresolved. The step 1 process concluded on 29 October 2021.

· Two step 2 meetings were held with two step 2 managers and the dispute remained unresolved. The step 2 process concluded on 19 November 2021.

· A step 3 meeting took place on 30 November 2021 and the dispute remained unresolved.

It is not disputed that the Applicant has complied with the steps in the dispute resolution procedure as a pre-condition of bringing the dispute before the Commission.[2] The matter did not resolve via conciliation before the Commission. It is not disputed that the Commission therefore has the power to arbitrate the dispute.

The hearing

The matter is a complex one in which 27 witness statements were filed with the Commission, in addition to submissions and other materials. Accordingly, the matter was listed for several days of hearing between 14 March 2022 and 28 April 2022. The Respondent sought to be represented by a lawyer at the hearing and, by way of summary, submitted that:[3]

· the matter is not merely a simple factual contest but calls for the determination of potentially complex, interrelated factual and legal questions;

· the Applicant is represented by an experienced lawyer and union advocate with a current practicing certificate such that the granting of permission will have the result that both sides will be represented by a lawyer;

· the Commission will be best assisted by experienced advocates who have professional obligations to the Commission and are able to assist the Commission with its functions;

· the matter would be dealt with more efficiently if permission to be represented was granted as it involves:

o a hearing spanning multiple days and likely involving cross-examination of 26 witnesses;

o submissions concerning the proper interpretation of a number of provisions of the Agreement;

o submissions concerning the issue of whether extended shifts can be implemented by the Respondent following consultation in the absence of a group flexibility agreement;

o a consideration of the individual working arrangements of 20 employees (some new and others with decades of experience with the Respondent) in three cohorts (Roamers, P1 Construction and Mr Markoski);

o a dispute over the relevance and application of the 1990 Agreement and whether or not it has been “grandfathered” or incorporated into the Agreement as a matter of law; and

o submissions concerning the relevance and reliability of evidence to be tendered.

The Applicant objected to the Respondent being represented, although in its application acknowledged that the dispute is a complex one. By way of summary, the Applicant submitted:[4]

· the Respondent is a large employer having 25,000 employees and a large human resources and legal team, appears regularly in the Commission and is able to represent itself;

· Mr Dwyer, initial D, is representing the Applicant and is an elected Branch Secretary of the Applicant and an experienced lawyer, but represents members by himself as there is no other industrial support in the branch;

· whilst there are 20 Applicant witnesses, 19 are assigned to two distinct groups with similar factual situations and employment contracts;

· no issues of jurisdiction arise and no interpretation issues arise that need more consideration beyond the ordinary and literal meaning of a clause; and

· the application does not demonstrate that the proceedings can be more efficiently managed by external lawyers compared to the Respondent’s lawyers.

On 7 March 2022, I held a case management hearing to determine whether representation should be granted. Having considered the submissions of parties, I was satisfied that the matter was complex and granted permission to the Respondent to be represented by a lawyer pursuant to s.596(2)(a) of the Act on the basis that it would enable the matter to be dealt with more efficiently, taking into account that complexity.

As such, during the hearing, the Respondent was represented by Mr Tamvakologos, initial M, with Mr Dwyer, initial D, appearing for the Applicant.

The questions for determination

During the first day of the hearing, confusion arose regarding the questions that needed to be determined in resolving the dispute, in part because of the Applicant’s reference to “permanent shiftworker”, which is not a term used in the Agreement. The dispute settlement term in clause 25.2 of the Agreement is clear that it is directed at disputes about things covered in the Agreement, or about the National Employment Standards.

After working through the issues in dispute, it was resolved that the questions to be determined in dealing with the dispute, and which fall within the jurisdiction of the dispute settlement clause of the Agreement and the Commission, are as follows:

Whether the employees the subject of the dispute are shiftworkers in that they have, in accordance with clause 15.4(a) of the Agreement:

a.been engaged as a shiftworker; or

b.agreed to become a shiftworker.

Whether the absence of a reference to “permanent” in clause 15.4(a) of the Agreement means that an employee who is engaged as a shiftworker, or has agreed to become a shiftworker, has a right under clause 15.4 of the Agreement to unilaterally change their status such that they cease to be a shiftworker.

Whether clause 22 of the Agreement requires a group flexibility agreement to be entered into in order for an employee to be required to work shifts in excess of 10 hours.

The first question involves findings of fact and, in this regard, the circumstances of the Roamer cohort, the P1 Construction cohort and Mr Markoski need to be considered separately.

The second and third questions turn to the proper construction of the Agreement.

The evidence

The Applicant filed 20 witness statements from employees of the Respondent. In relation to the Roamer cohort, witness statements were filed for:

· Richard Anderson;

· Andrew Baker;

· Billy Douroukis;

· Pasquale Frisina;

· Peter Kowalin;

· Craig McAndrew;

· John Messina; and

· David Seychell.

In relation to the P1 Construction cohort, the Applicant filed witness statements for:

· Corey Clancy;

· David D’Bais;

· Cameron Hunt;

· Tyler Johnson;

· Aldrick Kalopita;

· Christian Kotevski;

· Brenden Marshall;

· Stephen Price;

· Ritesh Shrestha;

· Fred Tannous; and

· Andrew Zbrog.

The Applicant also filed a witness statement for Mr Markoski.

The Respondent filed seven witness statements for:

· Gary Evans, Networks Principal for the Respondent;

· George Gorgievski, Technical Support Project Lead for the Respondent;

· Martin Standish, Network Maintenance Team Manager for the Respondent;

· Zdenko Bazina, Team Manager for the Respondent;

· Nathan Davis, Team Manager for the Respondent;

· Kirk Ritchie, Technical Services Lead for the Respondent; and

· Rhiannon Lenegan, legal counsel of the Respondent, however the evidence of this witness was limited to support of submissions turning to permission to be represented.

During the case management hearing on 7 March 2022, and noting the observation the Applicant made about the nature of the witness evidence, I encouraged the parties to confer about how the efficiency of the proceedings could be further supported and whether all witnesses would be required for cross-examination. The parties did so during the course of the hearing and were able to narrow the number of witnesses required to appear during the hearing. Those witnesses who appeared to give evidence and who were the subject of cross-examination included:

· in the “Roamer” cohort, Mr Anderson, Mr Baker, Mr Douroukis, Mr Messina and Mr Seychell;

· in the “P1 Construction” cohort, Mr Clancy, Mr Hunt, Mr Johnson and Mr Tannous;

· Mr Markoski;

· for the Respondent, Mr Evans, Mr Bazina, Mr Gorgievski and Mr Standish.

The Roamers

Evidence of the Roamers

Richard Anderson

By way of summary, Mr Anderson’s evidence was that:[5]

· he is currently a Roamer and Mr Gorgievski is his team leader;

· he was employed in a traineeship in 1990 and does not have a copy of his employment contract;

· when he was employed, he was required to work a “36.45 [sic] hour week (73.5hr fortnight)” between 8am and 5pm;

· in 2000, the Respondent asked him to be on standby at the Haymarket Exchange for the Olympic Games where he was required to monitor the network between 7pm and 7.15am. During this time, he was paid “overtime with respite for the normal hour day”;

· after the Olympic Games had ended, he was approached by his then team leader, Andrew Fitzgerald, who asked him to consider working a “voluntary 12:15 roster” which involved:

oa day and night component; and

oworking “12:15 hours with three rosters per week to slot into the 36.45 [sic] hour week”;

· his then team leader said words to the effect that “Telstra could stop the roster at anytime [sic]” and that Mr Anderson “could stop being on the roster at any time”;

· he “verbally agreed to partake in the voluntary roster under the strong proviso that [he] could opt out of this roster at any time and return to normal work hours”;

· it was verbally agreed that he would work a roster involving:

oworking between 7am and 7.15pm, being a 12:15 day with payment of a 15% loading;

oworking between 7pm and 7.15am, being a 12:15 night with a 30% loading;

· no documents or contracts were signed at the time;

· throughout the course of his tenure, many managers have been involved with the “voluntary shift roster” and “all adamantly agreed” that employees can opt out of the roster; and

· employees who have “opted out” of the roster include Jim Randal, Tony Brown, Greg Forster, Bob Chruscz, Graham Tome, Theo Michael and Lam Nguyen.

During the course of cross-examination, Mr Anderson was taken to paragraph 10 of his witness statement in which he states “They [being his managers] all adamantly agreed that this roster can be “opted out from”” and was asked a series of questions about this. Mr Anderson’s evidence was that:[6]

· in saying this, he meant that “if we were not wanting to be working the shifts anymore, we could opt out and return to ordinary hours”; and

· a required notice period for “opting out” was “never really discussed” and, if he wanted to “opt out” today, he is unsure what the notice period is.

Mr Anderson was also taken to paragraph 7 of his witness statement in which he gave evidence that his team leader, Mr Fitzgerald, had said words like “Telstra could stop the roster at anytime [sic]” and he “could stop being on the roster at anytime [sic]” and was asked a series of related questions about this. Mr Anderson’s evidence was that:[7]

· this discussion with Mr Fitzgerald was after the time of the 2000 Olympics;

· in this discussion, Mr Fitzgerald said “How is it going with working the Olympics, staying overnight? There’s an idea of them putting together an idea of working a 12 hour 15 overnight and this would mean you’d be working a 36 and three-quarter hour week, which means you’d be working three 12 hour 15 shifts” and there “wasn’t much more detail to it than that”;

· he said “Well, how long are the shifts going to go for?” and Mr Fitzgerald “determined that Telstra could stop the shift at any time”; and

· he said “Well, what if the shift is not working for me?” and Mr Fitzgerald said “You can stop the shift at any time also”.

Andrew Baker

By way of summary, Mr Baker’s evidence was that:[8]

· he is currently a Roamer and Mr Gorgievski is his team leader;

· he was employed in August 1981 as an Assistant Technician before becoming an apprentice in June 1982;

· in 1990, he was offered a position in the regional after hours control centre working three eight-hour shifts for one week followed by two weeks on day shift before taking on a promotion in 1996 working day shift only;

· in 2000, the Respondent called for volunteers to work a roster of 12.25 hours a day for a five week period followed by “5 weeks of nights” to cover transmission, switching and exchange maintenance duties. Before this time, weekend and after hours work was overtime;

· it was made clear to him at the time “you could opt in or out of the roster anytime [sic], due to health or personal issues, and over the years, a number of [his] colleagues did that”;

· he volunteered to work shiftwork on the “understanding that there was always an opt in/out option depending on your circumstances”;

· the roster that he works to can be quite challenging, especially at night and the work done after hours has always been appreciated and acknowledged by management;

· he has never seen a copy of his contract during his 40 years of employment; and

· he has “not been given a proposed flexibility agreement at any time”.

During cross-examination, Mr Baker was asked about his assertion that it was made clear during the implementation of the roster in 2000 that employees “could opt in or out of the roster”.[9] Mr Baker was asked to clarify when this occurred and his response was:

“…I think it was the final meeting, I think, but yes, it might have been at the expressions of interest. It’s a possibility because people would have asked that question before they expressed their interest.”[10]

Mr Baker could not remember the actual words that were used at the meeting but suggested that questions were asked about whether employees could “get off the roster” if they wanted and the answer was yes.[11]

Mr Baker was also taken to paragraph 8 of his witness statement where he states that “you could opt in or out of the roster anytime [sic], due to health or personal issues” and confirmed that, while he did not know the words that were used, this was the best he could remember.[12] Mr Baker was unclear about whether a person could opt out for other reasons.

Billy Douroukis

By way of summary, Mr Douroukis’ evidence was that:[13]

· he is currently fulfilling a maintenance roster of 12.25 hours (36.75 hours per week) days and nights on a five week cycle involving working five week days and five week nights and Mr Gorgievski is his team leader;

· he commenced his employment in 1983 as a Technical Officer trainee and was “working as a permanent day staff employee up until the 2000 Olympics” with all out of hours work treated as overtime;

· since then, he “fulfilled an agreed roster to do 12.25hr night and day work” and still fulfils this roster;

· in November 2000, expressions of interest were called for the working of a “fireman’s shift” to replace a roaming roster from the 1990s to “look after the network”;

· after the 2000 Olympic Games, his then area manager, David Gerrety, in collaboration with other area managers, decided to “resurrect” the roaming roster for nights and include days with it, being 12.25 hours;

· he volunteered, along with two others, “about five months later it turned out to be very successful” and “this bought [sic] forward expressions of interest to recruit more staff on this roaming roster”;

· Mr Evans, the then Area Manager, “took it on board and with carful [sic] negotiations and planning the 12.25Hr roster was expanded to 20 staff”;

· the “negotiations and planning of this roster was based on local agreement with staff and managers involved and was set as a flexible opt in and out arrangement according to staff’s personal wellbeing and family commitments. Thus the 5 week turnaround locally agreed roster was formulated and put into action about mid 2001”;

· although the roster has been fulfilled for many years, many people have opted in and out with no objection from management;

· no written agreement was produced during this time;

· he has “not agreed to be a permanent shiftworker”; and

· he has “not been given a proposed flexibility agreement at any time”.

During cross-examination, Mr Douroukis’ evidence was that he was involved in a “trial voluntary shift” roster with two other colleagues for a short period of time before negotiations progressed to get “more volunteers onto the roster”.[14]

Mr Douroukis was taken to paragraph 9 of his witness statement which states:

“These negotiations and planning of this roster was based on local agreement with staff and managers involved and was set as a flexible opt in and opt out arrangement according to staff’s personal wellbeing and family commitments. Thus the 5 week turnaround locally agreed roster was formulated and put into action about mid 2001.”

Mr Douroukis was taken specifically to the reference to the “flexible opt in and opt out arrangement” and was asked “That was during the trial period; is that right?” to which Mr Douroukis responded “Yes”.[15]

Mr Douroukis was also taken specifically to the reference to “flexible opt in and opt out arrangement according to staff’s personal wellbeing and family commitments” and was asked:

“I take it what you mean is if someone has a conflicting family issue or personal wellbeing, like a health issue, they can come off?”

to which Mr Douroukis responded:

“Personal wellbeing could be own personal discretion, it could be – personal wellbeing could be discretion as well.”[16]

Mr Douroukis then asserted that the roster was “opt in/opt out full stop” and that this didn’t apply only to the trial period.[17]

Mr Douroukis was taken back to his statement that it was “opt in/opt out according to staff’s personal wellbeing and family commitments”, was asked “did someone from Telstra say that to you?” and he replied “Of course they did, yes”.[18] Mr Douroukis’ evidence was that Mr Gerrety and Mr Evans said this but he could not remember exactly what was said.[19] When asked what was said to the best of his recollection, Mr Douroukis said that Mr Gerrety and Mr Evans said “If you can’t work the nights, get off”.[20]

John Messina

By way of summary, Mr Messina’s evidence was that:[21]

· he is a Roamer reporting to Mr Gorgievski;

· he was employed by Telecom Australia in 1987 as an apprentice;

· he does not have a copy of any employment contract;

· in 2000, he was approached to work a “24 hour, 5 days a week, 12 hour 15 minute voluntary roster”;

· following consultation, an agreement was reached “with the balance of coverage and lifestyle, and appropriate shift allowances to compensate working in a challenging environment”;

· in “good faith” he “volunteered to work this roster with the assurance that [he] could return to normal work hours at any time”;

· he asked the then Regional Manager, Mr Evans, for this assurance in writing and Mr Evans’ response was that the people in the room at the time were his witnesses;

· he did not sign anything and there is no record stating that his employment conditions changed such that he became a permanent shiftworker;

· he has never been approached or consulted about his position to be changed to a permanent shiftworker across the 21 year period;

· during the 21 years of the agreement operating, he has seen employees voluntarily come on and off the shift arrangement regardless of the management at the time;

· in July 2021, during an announcement of redundancies, the current Principal, Jason Webster, informed employees of plans for a new roster and to cut the applicable loading, including cutting 15 minutes per shift to eliminate the shift loading;

· during the dispute, it was stated that employees would continue to have five weeks annual leave, however he has always worked a five day roster and has not been entitled to an extra week’s annual leave;

· his roster arrangements have been very flexible over the past few years as he as filled in as acting Team Manager and managed various projects resulting in him working night shift blocks only twice in that time; and

· in October 2021, a Human Resources Consultant, Rose Ann Arellano, informed him that his work profile states he can return to normal work hours after an adjustment in the system by his Team Manager.

During the course of cross-examination, the Respondent asked Mr Messina a series of questions about his assertion that Mr Evans gave an assurance that he could work according to the new roster but return to normal work hours at any time.[22] Mr Messina indicated in his evidence that Mr Evans gave this assurance at a meeting where the proposals for the new roster was discussed.[23] Mr Messina was asked to recall the exchange he had with Mr Evans and his evidence was:[24]

· at the “main meeting”, he asked Mr Evans “if I wanted to return to day hours, could I return to day hours?” or “If I wanted to come off this roster, can I come off this roster?” and Mr Evans’ response was “Yes, yes you can” or “yes”; and

· he asked Mr Evans for this assurance in writing and Mr Evans’ response was “No need for writing, the room is your – the people in this room are your witness”.

Mr Messina confirmed that when the rosters were proposed, the Respondent called for volunteers to work them and he was one of those volunteers.[25] Mr Messina also confirmed that, after the meeting, eventually the discussions, consultation and negotiations led to an agreement, rosters were implemented and he worked them regularly for a couple of decades.[26]

David Seychell

By way of summary, Mr Seychell’s evidence was that:[27]

· he is a Roamer reporting to Mr Standish;

· he was employed as a trainee in 1985;

· he has “not signed any employment contracts since the commencement of [his] employment with the company”, however he did attach a letter dated 27 October 1986 to his witness statement confirming his appointment “to the permanent staff at Telecom Australia”;

· in 2000, he was appointed to a CFW7 Position following a review of his work and classification and he attached three documents relevant to this to his witness statement, noting none of them set out a requirement to work shiftwork;

· in the period around 1993-1999,[28] the Regional After-Hours Control Centres (RAHCC) were staffed at two main levels:

oRAHCC Principal Technical Staff (PTTO2) working 12 hour rosters as per the 1990 Agreement; and

oSenior Telecommunications Technical Officer (STTO2) staff within the centre and mobile in the field as rovers, driving out of hours from site to site to attend network outages;

· he has worked in various roles and was employed as a “Rover” for several years, performed relief work for the PTTO2 staff on leave and worked according to a roster on a “rotating 8.25hr x 7-day shift” covering 7am – 3.15pm, 3pm – 11.15pm and 11pm – 7.15 pm;

· he returned to day work with his appointment as STTO2 within the “Building Cell” for several years;

· in about 2000, following the Sydney Olympic Games, his work group was advised that the automation of Telstra Automated Work Dispatching required a change in the manner of management of after-hours planned work and emergency work;

· management advised they would consult with the aim to create a new roster arrangement and that the planned Automated Workforce Scheduling systems depended on a continuance of staff arriving at work each morning as scheduled;

· prior to this time, all weekend work and work outside core hours was overtime;

· several consultative meetings were conducted with employees to consider roster proposals developed by Steven Bruckshaw;

· the manager at the time was Mr Evans;

· it was made clear that the consultative meetings, to facilitate the filling of the proposed roster arrangements, several key concessions would be considered to ease the many concerns of the interested staff;

· he recalls the concessions included:

oa six-month trial of the final draft of the roster,

oa ten-week roster cycle split between day and night work components facilitating additional shift loading for night shift;

oappointed relief staff positions to fill any vacancies through staff leave,

oflexibility to allow swaps of days, weeks, participation and exclusion from the arrangement for personal reasons;

oadherence to the existing 1990 Agreement for the duration of the arrangement; and

o“application of Company Policy through the duration of the agreement covering relevant employment details”;

· the “flexibility of voluntary exclusion has been demonstrated over the years” by a number of employees; and

· he has “not been given a proposed flexibility agreement at any time”.

Pasquale Frisina

While Pasquale Frisina was not called to give evidence, a witness statement was filed for him as a part of the proceedings and within that statement he said:[29]

· he is currently a Technical Expert in the Roamer/P1 stream and his team leader is Mr Standish;

· he was employed as an Assistant Technician in 1986;

· he cannot find his employment contract and neither can the Respondent, however he does not recall any mention of shiftwork;

· he worked as a weekend shift roamer for five years until 1995 and was later promoted to a Technical Expert in about 2000;

· he volunteered to assist on a new shift roster, which was a temporary measure but has continued for 20 years to date after successful reviews;

· after the “Y2k scare” and 2000 Olympics, 12 hour shiftwork was suggested and a working party of field staff, management and union “sat down to come to some agreement how it would work”;

· as a result, the 1990 Agreement and its guidelines were adopted;

· from that, 12:15 hour shifts consisting of five week nights followed by five week days were set in a roster;

· he “volunteered as a normal network day worker to work this shift roster” which was always conveyed to him “as a temporary measure which could be discontinued or terminated by management at anytime [sic] if it didn’t work” and “if so, we would go back to a normal 9 day fortnight”;

· if there were any complaints, managers suggested opting out “so someone else would be given the opportunity to go on”;

· the shift arrangement was working so well that rosters would be continually extended every six months or so by the many managers and team leaders that were overseeing the arrangement;

· he understood he could opt out at any time if he did not see himself as fit or if his circumstances changed;

· he never signed anything in relation to the arrangement;

· the night shift period has presented challenges for him and, when he brought up concerns with his team leader, his team leader supported him moving off shiftwork, however his financial circumstances kept him from doing so such that he is still working according to the shiftwork arrangement and is happy to continue doing so for a few more years unless he is physically unable to;

· employees have “opted out of shift for their own reasons”;

· after the shift changes were proposed by the Respondent, employees were told by Mr Webster:

othat since employees have been working according to this arrangement for more than 10 years, these employees are automatically permanent shiftworkers and therefore cannot opt out;

othat the proposed changes are not a cost cutting exercise; and

othat the ideal roster of one 12 hour night and two eight-hour days per week will suit his work life balance;

· the changes proposed will reduce shift penalties by more than 50% (cutting the night penalty from 30% to 15% and the day penalty from 15% to zero) making the working of the arrangement non-viable for him and that he would be better off going back to a nine day fortnight and getting a weekend job to meet his financial liabilities; and

· he has “not been given a proposed flexibility agreement at any time”.

Peter Kowalin

While Peter Kowalin was not called to give evidence, a witness statement was filed for him as a part of the proceedings and within that statement he said:[30]

· he is in the Roamer workstream and his team leader is Mr Gorgievski;

· his employment goes back to 1972 where he started as an apprentice before resigning from Telecom Australia in 1985 and re-joining Telstra in 1995; and

· he doesn’t recall what documents he may have signed in 1995 and was not given any to keep.

Mr Kowalin’s statement provides the following account regarding the introduction of shiftwork arrangements:[31]

· in 2000, about 35 employees met at Paramatta telephone exchange to hear about a proposed day/night work arrangement with the proposal delivered by the then Sydney Network Maintenance Manager, Mr Evans;

· the work arrangement at that time was strictly daytime hours and overtime and recalls were undertaken for any after hours planned event work or failures;

· the new proposal was to work three consecutive 12.25 hour days per week and three consecutive nights per week;

· no set roster was presented at the meeting as its purpose was to set guidelines and seek expressions of interest from technicians;

· the first proposal put forward by Mr Evans was six months of night shifts followed by six months of day shift, both involving three days/nights per week, Monday to Friday, and there were no volunteers for this proposed arrangement;

· he suggested that he would consider working the hours if the rotation was no more than two months of day shift followed by two months of night shift and at that point there were quite a few volunteers;

· Mr Evans further elaborated that technicians at night would be working as roamers to cover all Sydney exchanges and this did not appeal to everyone so some retracted their expression of interest;

· there were too many volunteers so it was announced that the managers would choose which technicians would eventually work the new roster;

· a five week roster rotation with a 30% night shift loading was discussed with Mr Bruckshaw who drew up the roster;

· it was specifically stated that those who did not like the working arrangement could “come off and resume the 9 day fortnight 8’10” day work”;

· he knows of five technicians who “got off the volunteer roster for whatever personal reasons”;

· it was never mentioned, suggested or inferred that he or his colleagues working the day/night shift roster were classified as permanent shiftworkers and he always perceived that he and his colleagues were volunteer shiftworkers; and

· he “has not been given a proposed flexibility agreement at any time”.

Craig McAndrew

While Craig McAndrew was not called to give evidence, a witness statement was filed for him as a part of the proceedings and within that statement he said:[32]

· he is a roamer and Mr Standish is his team leader;

· he was employed in May 1989 by Telecom as an apprentice;

· advancement of technology and growth of the network forced an increase in after hours work resulting in overtime costs and staff shortages;

· in late 2000, Mr Evans held a meeting seeking volunteers to work on a roster;

· employees collaborated with management to make a roster involving five weeks of days (three 12 hour and 15 minute days) and five weeks of nights (three 12 hour and 15 minute nights) which was agreed upon;

· in “good faith” he “volunteered to work on this roster based on the understanding that [he] always had the option to return to normal day work (9 day fortnight) if circumstances changed, provided enough notice was given”;

· over the years several technicians have requested and left the roster and returned to a nine day working fortnight;

· to facilitate changing business needs, the roster has required alterations “all made in good faith and with appropriate consultation”;

· after hours work includes resolving network outages, recalls, planned network maintenance and network upgrades, is demanding and often high pressure with limited support;

· that the technicians on this roster are first called in a crisis situation is recognition of their skill, knowledge and ability to work under pressure;

· in July 2021, at the end of a redundancy announcement, Mr Webster informed employees of plans for a new roster and to cut shift loading;

· it has never been brought to his attention that he was to be classified as a permanent shiftworker or that the option to return to a nine day fortnight ceased to exist;

· the proposed changes are unacceptable to him and given the choice he would revert to a nine day fortnight (day only); and

· he has “not been given a proposed flexibility agreement at any time”.

Evidence of management regarding the Roamers

Gary Evans

By way of summary, Mr Evans’ evidence was that:[33]

· he has been employed by the Respondent since 1982 in a variety of roles and is currently in the role of Networks Principal;

· in around the year 2000, he managed a number of teams of technical staff, including network staff and data staff, who would work standard hours during the day with a recall arrangement for attendances at night to maintain the Respondent’s telecommunications services;

· the employees known as the Roamers in these proceedings were known as “network staff” in the early 2000s;

· with a recall arrangement:

oemployees had less certainty about when they would be required to work at night;

othe need for technical staff to return to work from their home meant that customer issues were not responded to as quickly as some services agreements with customers required; and

owork outside the span of hours was treated as overtime and often triggered 10 hours of rest relief which imposed a cost burden on the business;

· he, and a number of other managers, began looking at alternative ways of working and ultimately agreed on shiftwork as an alternative to recall for employees who volunteered to take on shiftwork as a part of their roles;

· he does not recall any shift arrangement coming into operation at the time of the Sydney Olympics but it is likely that discussions about implementing a different work arrangement commenced around this time;

· he has been provided with payslips for the Roamers for the period between 2000 and 2001 which show that they started receiving shift penalties between September 2000 and February 2001 and that none of these employees received a temporary shift allowance in addition to their shift penalties;

· some of the records he has been able to locate relate to data staff (rather than network staff being the Roamers), however the process for introduction of shifts for data staff was similar to the process he followed for network staff;

· he located a PowerPoint presentation dated 23 October 2002 and titled “12 hour shifts for data staff – staff communication” which sets out the reasons for introducing extended shifts as an alternative to standards hours with the ability to recall employees. While this relates to data employees, as opposed to network staff, the process for introduction of shifts was similar;

· a copy of the presentation was provided and states that:

o“staff for the shift will be selected on a voluntary basis”;

othe Applicant had been consulted about the introduction of the shift; and

oto volunteer for shifts, Communication Technicians (CTs) would be asked to forward their expression of interest to their team manager;

· shift arrangements for the Roamers were introduced in line with the 1990 Agreement which provides, amongst other things that:

othere must be a need for ongoing shiftwork at the station for at least two years (guideline 8);

otwelve hour roster operation in any station will be subject to review within the first twelve months of operation (guideline 16); and

oworking additional shifts beyond those rostered will be voluntary (shift cycle 6.1(c));

· the shift pattern that he implemented in the early 2000s was the same or similar to the shift pattern that the Roamers currently work (i.e. 12.25 hour shifts on a 10 week roster rotating between five weeks of night shifts and five weeks of day shifts including a 30% night shift loading);

· at the time the shift was implemented, a number of meetings were held with employees to discuss implementation;

· he agrees that the shift roster was the result of collaboration between employees and management and that the current roster is based on this;

· the expression of interest process was informal and employees could express an interest in shift by notifying their line manager at the time;

· he recalls there was enough interest to make it work;

· once employees agreed to commence working the agreed shift roster, there was a change to their remuneration because they were paid the relevant shift penalties; and

· there was no written agreement at the time of implementing the shift arrangement and the shift roster was implemented under the 1990 Agreement.

Mr Evans referred to minutes of a meeting held on 14 January 2004 which indicate that a shift arrangement was introduced as a trial and that “the team has no ongoing Health and Safety issues at this time and feel that shifts should continue.”[34] While the meeting related to data staff, Mr Evans suggested this is another example of the introduction and implementation of shift arrangements similar to that used by the Roamers.[35]

Mr Evans’ evidence was that, in 2007, he commenced a review of the network and data 12 hour shift arrangements and, at that time, explained this would involve determining how best to provide service across 24 hours, seven days a week.[36] Mr Evan’s evidence was that:[37]

· in conjunction with input from employees, he was looking to determine the best business and customer outcome and to hopefully produce a roster best suited to the business and employees (a copy of an email sent to impacted employees on 21 March 2007 was attached to his statement);

· he located an email that indicated he held a meeting around April 2007. The email stated that the meeting’s purpose was “to present a couple of slides outlining the reasons behind why I am currently looking at the shifts and also based on feedback that I have received a couple of draft alternative rosters that you can look at” (a copy of the email was attached to his statement); and

· there were no major changes to the shift rosters as a result of the review process and employees indicated they were generally happy with the arrangements.

In relation to Mr Seychell’s evidence about consultation in relation to the shift roster arrangement, at paragraphs 24-25 of Mr Seychell’s statement, Mr Evans’ evidence was that:[38]

· he agrees that, at the initial meetings to discuss implementation of a shift roster, the following issues were discussed:

oa six month trial of the roster;

oa ten week roster cycle split between day and night work components facilitating additional shift loading for night shift;

orelief to fill vacancies through staff leave;

ojob swaps;

othe 1990 Agreement; and

othe application of company policy;

· he does not agree that “concessions” were given at that time and that management and employees “were simply having discussions with the view to developing a shift roster”; and

· the Respondent “did not have a proposed arrangement that could be watered down by “concessions”” and “wanted the team’s input into the development of the shift roster”.

In relation to Mr Kowalin’s statement that the “first proposal put forward by [Mr Evans] was 6 months of night shift followed then by 6 months day shift, both of 3 days/nights per week, Monday to Friday”, Mr Evans’ evidence was that he does not recall putting forward this proposal, but it “may have been an initial idea”.[39]

In relation to the evidence of the Roamers suggesting they could “opt out” of shifts, Mr Evans’ evidence was that:[40]

· he did not agree that, at the time it was implemented or at any other time, the shiftwork arrangement was referred to by him or anyone else to his knowledge as “optional” or that an employee could opt in and out of shiftwork;

· the only optional part was that it was voluntary for staff to move from day work to go onto the shift roster;

· the expression of interest was voluntary but it was not the situation that once an employee had volunteered to go onto the shift roster, they could then opt out at any time;

· if it had been intended that employees could “opt out” of shift at any time, this would have been stated in communications to staff but that is not the case;

· employees having the ability to “opt out” of the shift roster was never discussed; and

· if employees did want to “opt out” of shiftwork once they had volunteered to join the shift roster, they would need to seek the Respondent’s agreement and, if someone came to him with a good reason why they wanted to stop performing shiftwork (e.g. for a family or medical reason), he would always do the best to accommodate their situation.

Mr Evans addressed the assertion of Mr Messina that he volunteered to work a shift roster with the assurance that he could return to normal work hours at any time in which Mr Messina stated “I asked the Regional Manager of the day, Gary Evans for this assurance in writing, his response was that the people in the room were my witnesses”. Mr Evans’ evidence was that he did not say this and it was not arranged or agreed that Mr Messina could return to work normal hours at any time.[41]

George Gorgievski

By way of summary, Mr Gorgievski’s evidence was that:[42]

· he has been employed by the Respondent since 1995 and is responsible for managing a team of network maintenance CTs to ensure that maintenance of the Respondent’s networks is carried out;

· he reports to Kirk Ritchie (Technical Services – Senior Lead) who reports to Mr Webster (South East Construction Principal);

· he currently manages 11 CTs in Sydney and his colleague, Mr Standish, manages the other five CTs. Among those he manages are Mr Anderson, Mr Baker, Mr Douroukis, Mr Kowalin, Mr Messina and Mr Markoski;

· when there is an incident or issue impacting the Respondent’s network, an incident/ticket is created and the CT’s are engaged and required to perform any maintenance which includes fault finding, investigating, diagnosing and repairing the network issue;

· if an issue with the Respondent’s network is identified that is not directly impacting customers at the time, the issue may be dealt with as a “planned event” with maintenance carried out after midnight or before 6am, Monday to Friday (and sometimes during the weekend) to minimise customer impact;

· when CTs are rostered to work night shifts, they cover planned event maintenance work as well as reactive maintenance work and, since around July 2019, have also been responsible for staffing the Respondent’s P1 exchanges while also carrying out any maintenance work required at those exchanges between 7pm and 7.15am, Monday to Friday;

· the CTs are sometimes known locally as “Roamers” because they “roam” the city metropole area at night;

· the roster is set up 12 months in advance and currently provides for shifts of 12.25 hours (i.e. 12 hours and 15 minutes) with a rotation between five weeks of night shifts and five weeks of day shifts. Across each five week roster period, each shift CT will work:

othree 12.25 hour shifts in three weeks;

otwo 12.25 hour shifts in one week; and

ofour 12.25 hour shifts in one week;

· except for Mr Markoski, the CTs have worked according to a roster providing for day and night shifts of 12.25 hours with a five week rotation between days and nights since the early 2000s;

· to his knowledge, CTs have always been willing to work these shifts and have always received shift penalties to compensate them for their shift arrangements;

· the CTs receive additional penalties for working five consecutive weeks of night shifts in a row;

· if a CT wished to become a day worker, they would need to make a formal request in writing which he would take to Mr Standish and his one up manager, Mr Ritchie, to explore if it could be accommodated and agreed to;

· none of the CTs currently in his team have formally asked him to become day workers and so he has not had to deal with this type of request for some time;

· there have been times where CTs have been taken off shift by agreement, including:

oin 2014, Graham Tome approached him because he had a medical condition and needed to take a period of extended leave. After he returned it was agreed that he would no longer work shifts and arrangements were made to enable him to work as a day worker performing the same role;

oin or around May 2015, Theo Michael approached him as he wished to come off shift for personal reasons. He approached the then general manager and it was agreed that the request could be accommodated with one of the CTs swapping “sides” of the roster; and

oin or around 2019, a CT in Mr Standish’s team was diagnosed with cancer. Lam Nguyen was asked if he would fill in that person’s role and Mr Nguyen agreed and worked on the shift roster for about 18 months. When the CT returned, Mr Nguyen returned to standard day work hours;

· on 21 July 2021, his two up manager, Mr Webster, commenced a consultation process regarding proposed changes to the shift roster as a part of a wider proposal;

· the consultation process ran for around two months with a final decision presented to impacted teams on 21 September 2021; and

· a decision was ultimately made by Mr Webster to adopt shifts of 12 hours (as opposed to 12 hours and 15 minutes) however no changes have been implemented due to the ongoing dispute.

Martin Standish

By way of summary, Mr Standish’s evidence was that:[43]

· he is the manager of a team of CTs who are locally known as “maintenance roamers” to carry out maintenance on the Respondent’s network;

· he has been employed by the Respondent since January 1989 and has been the team leader of some of the Respondent’s CTs in Sydney since 2007;

· he reports to Mr Ritchie who reports to Mr Webster;

· within his team, there are two day work CTs, three shiftwork CTs (who he usually refers to as “shifties”), four deployment staff and five CTs based in Newcastle;

· the CTs working shiftwork in his team (and who are the subject of the dispute) are Mr Frisina, Mr McAndrew and Mr Seychell;

· when he became team manager in 2007, Mr Frisina, Mr McAndrew and Mr Seychell had already been working shifts consistently for several years;

· shift CTs are needed to carry out “planned event maintenance” at night, generally between 12am and 6am, to avoid network disruption;

· shift CTs are also responsible for staffing and carrying out maintenance at the Respondent’s P1 telephone exchanges as well as reactive maintenance work (responding to network incidents or alarms) in the Sydney metropolitan area between the hours of 7pm and 7.15am Monday to Friday;

· he has been responsible for creating the shift CTs’ rosters since at least 2013 and generally sets up the roster for about 12 to 13 months at a time; and

· the roster provides for a rotation between five weeks of night shifts and five weeks of day shift and will generally involve working three 12.25 hour shifts in three weeks, two 12.25 hour shifts in one week and four 12.25 hour shifts in one week.

Mr Standish addressed the evidence of the Roamers that suggested that some shift CTs had “opted out” of shiftwork, providing evidence that:[44]

· James Randal was taken off shiftwork in or around 2010 due to performance concerns and following agreement between him and Mr Randal;

· Tony Brown approached him to request a change in arrangements to allow him to attend university and his change was made by agreement between him and Mr Brown following discussions he had with his manager at the time;

· if any of the current shift CTs wished to stop working shifts today (for example, for family or health reasons), they would need to make a request in writing, he would consider it in collaboration with Mr Gorgievski to determine whether it could be accommodated and agreed to and he would discuss it with his manager; and

· if someone made such a request, he would explore how it could be accommodated by looking at work commitments, finding someone else to become a shift CT or reworking the roster.

Submissions of the parties – Roamers

Applicant’s submissions

The Applicant submitted:

· the employees the subject of this dispute are not “permanent” shiftworkers and never agreed to become “permanent” shiftworkers;

· the employees are not shiftworkers as defined by the Agreement;

· the employees are persons who volunteered to do shiftwork; and

· a workplace flexibility agreement is needed for shifts in excess of 10 hours.[45]

The Applicant submitted that the Agreement has three categories of shift being:

· “scheduled work” which only applies in contact centres and is not relevant in the context of the dispute;

· “shiftwork” which is found in clause 15.4 of the Agreement; and

· “extended shifts”, found in clause 15.4(g) of the Agreement under “Extended Shift Arrangements” and which are defined in Appendix D as “shifts that are more than 10 hours and up to 12 hours in length (excluding breaks)”.[46]

In relation to “shiftwork”, the Applicant pointed to clause 15.4 of the Agreement, which states:

a)These provisions apply to employees who have been or are in future engaged as shiftworkers or who agree to become shiftworkers.

b)Telstra may engage you as a shiftworker if it regularly requires you to work outside the span of ordinary hours on Monday to Friday, or to work regularly on weekends.

c)Telstra may ask employees who are not shiftworkers to undertake shiftwork, in which case Telstra will call for volunteers. However, an employee who is not a shiftworker can’t be required by Telstra to become a shiftworker.

d)Where Telstra wants to introduce shiftwork into an area where it doesn’t already operate, Telstra will consult with employees in the area and with unions, under the consultation provisions in Section 6…

The Applicant submitted that the key words above are:

· “…an employee who is not a shiftworker can’t be required by Telstra to become a shiftworker”;

· “These provisions apply to employees who have been or are in future engaged as shiftworkers or who agree to become shiftworkers”; and

· “Telstra may ask employees who are not shiftworkers to undertake shiftwork, in which case Telstra will call for volunteers”.[47]

The Applicant submitted that the effect of the above is that:

· a non shiftworker cannot be required to become a shiftworker;

· a shiftworker is one who:

ohas been engaged as a shiftworker; or

oagreed to become engaged as a shiftworker; and

· non shiftworkers can volunteer to undertake shiftwork (Applicant’s emphasis).[48]

In this regard, the Applicant submitted that the distinction between “shiftwork” and “shiftworker” is important as the reference to “volunteers” is a reference to a non shiftworker (commonly known as day workers) volunteering to do “shiftwork”, not to become a “shiftworker”.[49]

The Applicant submitted:

· there is no evidence that the employees were engaged as shiftworkers; and

· the evidence of employees is that they are non shiftworkers who volunteered to remain as non shiftworkers undertaking shiftwork.[50]

The Applicant submitted that, in this regard, there is no reason to look further than the ordinary meaning of the word “volunteer”, which it submitted means:

· that someone has offered their services freely, without any legal obligation to do so; and

· it is not a permanent commitment.[51]

The Applicant submitted that this notion is consistent with the evidence of a number of witnesses that some employees have withdrawn from undertaking shiftwork in the past.[52]

Respondent’s submissions

The Respondent submitted that the best evidence contained in the Roamers’ witness statements to support the Applicant’s arguments are statements of the employees’ subjective understanding or state of mind that they regarded themselves as volunteers on each shiftwork occasion and had the right to “opt out” from regularly scheduled shiftwork at any time. For example, Mr Baker gives evidence that, at the time that the shift roster was introduced, it was “made very clear…you could opt in or out of the roster anytime [sic]…” and Mr Frisina gives evidence that “My understanding was that I could opt out at any time…”. The Respondent submitted that:

· this evidence is of no value for the purpose of ruling on this dispute and is not admissible; and

· subjective understandings or interpretations are not relevant to the Commission’s analysis of the legal position of whether the Roamers were or are engaged as shiftworkers.[53]

The Respondent submitted that, in any event:

· the evidence of its managers is that the shiftwork arrangement was not referred to as “optional” or that an employee could opt in and out of shiftwork at the time it commenced; and

· the only optional part was that it was voluntary for staff to initially move from day work to go onto the shift roster and after that it would be necessary to seek the Respondent’s agreement to “opt out”.[54]

The Respondent also submitted that:[55]

· the Applicant conceded that the shiftwork arrangement was made under the 1990 Agreement, which provides “there must be a need for ongoing shift work at the station for at least two years” (Respondent’s emphasis). The Respondent submitted that this statement indicates that shiftwork would be ongoing rather than temporary;

· the 1990 Agreement states that “working additional shifts beyond those rostered will be voluntary” (Respondent’s emphasis) and submitted this indicates that rostered shifts were not voluntary; and

· while the 1990 Agreement is not incorporated into the Agreement, it is objective evidence to both parties regarding the Roamers’ shift arrangement.

The Respondent submitted that the Applicant’s own evidence establishes that:[56]

· initially there was a trial of the new shiftwork roster, which was successful and has continued for approximately 20 years;

· some employees believe that the 12 hour and 15 minute roster has been “grandfathered” and that nothing has changed; and

· Roamers were paid as shiftworkers rather than day/ordinary hours workers temporarily performing volunteer shiftwork and receiving a temporary shiftwork allowance.

The Respondent submitted that it can be inferred that, if any employees were entitled to the temporary shift allowance, they would have asserted this and the acceptance of shift penalties, but not a temporary shift allowance, is a reliable indicator of the status of the employees as shiftworkers.[57]

Consideration – Roamers

Themes emerging from the evidence of the Roamers

By way of summary, the following themes emerge from the evidence of the Roamers:

· they are very long serving with some commencing as apprentices or trainees with Telecom Australia in the 1980s, the longest serving employee commencing employment in 1972 and the employee with the shortest tenure commencing in 1990;

· there is very limited, if any, documented contracts of employment and no documented contracts of employment, or variations to them, that would assist in determining the questions the subject of this dispute;

· they have held various roles across their tenure;

· in or around the year 2000, management and employees entered into consultation about a new type of roster arrangement to provide 24 hour network coverage;

· there was a call for volunteers/expressions of interest to work shiftwork and employees were selected to do so;

· a roster arrangement was agreed that involved working a rotating roster of night shifts for five weeks and day shifts for five weeks that would be 12 hours and 15 minutes in duration and worked across three days per week and the union, employees and management adopted a collaborative approach in its development;

· this roster arrangement has been in place since this time; and

· the Roamers are not filling a temporary vacancy in the roster of another group.

The Respondent attempted to discredit the evidence of the Roamers on the basis that the following statement appears uniformly in a number of the witness statements:

“I have not been given a proposed flexibility agreement at any time.”

It is apparent that the employees did not understand or gave confusing evidence about why they included the statement.[58]

Mr Douroukis’ evidence during cross-examination was that some of the points in witness statements were borrowed from other employees, including terminology such as “opt in, opt out” and “fireman shift”, and that the statement in relation to flexibility agreements was put in by his representative.[59] While this is the case and suggests that their representative may have suggested they include a statement to this effect, I do not accept that it invalidates evidence given by the Roamers in its entirety. The evidence of the Roamers turning to the above themes, while expressed differently in their statements, was broadly consistent.

The evidence of employees was that, during consultation and implementation of the new roster, it was agreed that employees were able to “opt out’ of the roster if it didn’t work for them, although some suggested that this ability to opt out came with some caveats including:

· the opt out option was dependent on an employee’s circumstances;[60]

· there was an ability to opt in or out of the roster “due to health or personal issues”;[61]

· the ability to opt out was “according to staff’s personal wellbeing and family commitments”;[62] and

· there was an understanding that there was an option to return to normal day work if circumstances changed, provided enough notice was given.[63]

While the Respondent submits that reliance cannot be placed on the subjective understanding of employees in relation to what was agreed, the evidence of a number of Roamers suggests that certain representations were made to them during 2000 when the roster arrangement was being formulated and I have had regard to their evidence regarding those representations in order to understand the nature of what was agreed as this is relevant to the determination of the dispute.

Themes emerging from the evidence of management regarding the Roamers

By way of summary, the following themes emerge from the evidence of Mr Evans, Mr Gorgievski and Mr Standish:

· prior to 2000, employees would work standard hours during the day with a recall arrangement for attendances at night;

· discussions about implementing a different work arrangement were had;

· a number of meetings were held with employees to discuss implementation of a shift arrangement;

· there was an initial trial period in relation to the implementation of shift arrangements;

· employees were asked to express an interest in working shift arrangements;

· a shift roster was developed as a result of collaboration between employees and management and the current roster is based on this;

· there was no written agreement at the time of implementing the shift arrangement;

· the expression of interest process was voluntary but it was not the situation that once an employee had volunteered to go onto the shift roster, they could then opt out at any time;

· if an employee wishes to become a day worker, they need to make a request and management would need to agree to it;

· the roster is set up 12 months in advance and provides for shifts of 12.25 hours (i.e. 12 hours and 15 minutes) with a rotation between five weeks of night shifts and five weeks of day shifts; and

· the Roamers have worked according to a roster providing for day and night shifts of 12.25 hours with a five week rotation between days and nights since the early 2000s and have received shift penalties to compensate them for their shift arrangements.

Findings

It is apparent that many of the facts regarding the implementation of shiftwork arrangements in relation to the Roamers in the early 2000s are not in dispute. However, those that are in dispute are relevant to the determination of the following question:

Whether the Roamers are shiftworkers in that they have, in accordance with clause 15.4(a) of the Agreement:

a.been engaged as a shiftworker; or

b.agreed to become a shiftworker.

The shiftwork provisions in the Agreement are found at clause 15.4.

Clause 15.4(b) of the Agreement sets out the parameters as to when the Respondent may “engage” an employee as a shiftworker, those parameters being if it “regularly requires” an employee to “work outside the span of ordinary hours on Monday to Friday” or “to work regularly on weekends”. As such, for the Respondent to be able to engage an employee as a shiftworker:

· it must require the employee to work either outside the span of hours Monday to Friday or on weekends; and

· this requirement must be regular.

This requires me to consider the facts in relation to the requirements of the Respondent regarding working arrangements and whether they meet the above character.

Clause 14.3 of the Agreement provides that ordinary hours of work will be worked between 7am and 7pm Monday to Friday, other than in the Northern Territory where the daily span is 6.30am to 6.30pm. The Respondent requires coverage of the network and requires that the Roamers cover shifts from 7pm to 7.15am, Monday to Friday. A rotating roster consisting of five weeks of day shift and five weeks of night shift is in place to reflect this. It is clear that the Respondent requires the Roamers to work outside the span of hours Monday to Friday and that this requirement is regular.

Clause 15.4(a) of the Agreement provides that the shiftwork provisions apply to employees who have been or are in future “engaged” as shiftworkers or who “agree” to become shiftworkers. This dispute concerns the status of the employees the subject of this application at the current point in time, it is not concerned with their future status. This requires me to consider the facts in relation to whether there has been an act of “engagement” by the Respondent or an “agreement” made between the Respondent and the employees.

If, upon consideration of clauses 15.4(a) and (b) of the Agreement, an employee is not a shiftworker, this does not necessarily mean they are unable to undertake shiftwork as clause 15.4(c) enables the Respondent to call for volunteers to undertake shiftwork. However, clause 15.4(c) makes it clear that an employee who is not a shiftworker can’t be required to become one. In other words, the working of shiftwork by an employee who has not been engaged or agreed to be a shiftworker must be voluntary.

However, in the case of employees engaged to work “variable hours”, these may be worked as set out in clause 15 of the Agreement. That clause deals with “scheduled work” (clause 15.3) and “shiftwork” (clause 15.4). Clause 15.4(b) sets out what is essentially a definition of a shiftworker providing that:

“Telstra may engage you as a shiftworker if it regularly requires you to work outside
the span of ordinary hours on Monday to Friday, or to work regularly on weekends.”

As I have dealt with extensively earlier in this decision, clause 15.4(a) of the Agreement provides that the provisions of clause 15.4 apply to those employees who “have been or are in future engaged as shiftworkers or who agree to become shiftworkers”.

For employees who are not shiftworkers, a group flexibility agreement may be entered into to enable ordinary hours to be performed on weekends. In this case, clause 22.8 of the Agreement would entitle them to additional payment of:

· 50% for ordinary hours on a Saturday; and

· 100% for ordinary hours on a Sunday.

For those employees who are shiftworkers, a group flexibility agreement would have limited utility if it was seeking to vary the days of the week in ordinary hours of work alone given shiftworkers can work on weekends. Similar to clause 22.8, clause 15.4(f) of the Agreement also entitles shiftworkers to extra payments on weekends being:

· an additional payment of 50% for all time worked on a shift between midnight Friday and midnight Saturday; and

· an additional payment of 100% for all time worked on a shift between midnight Saturday and midnight Sunday,.

Span of hours

In terms of the “span of hours”, clause 14.3(a) of the Agreement provides that “ordinary hours of work will be worked between 7.00am and 7.00pm”. A group flexibility agreement is of limited utility in this regard as the limits placed on any such agreement would require that the agreed hours of work remain within this span.

There is however an exception to this being where the agreed span of hours is in line with the “Extended Shift Arrangement Guidelines referred to in clause 15.4(g)”. In this regard, clause 15.4(g) states:

g)Extended Shift Arrangements

i)Telstra may implement shifts of up to 12 hours in accordance with the Extended Shift Arrangement Guidelines (see Appendix D). The Extended Shift Arrangement Guidelines supplement the provisions in this Section.

ii)For the avoidance of doubt, where you regularly perform shifts of up to 10 hours in length, Telstra may ask, but will not require, you to perform extended shifts.

In relation to the span of hours, the Extended Shift Arrangement Guidelines in Appendix D provide that extended shifts “will commence no earlier than 6.00am”. While the guidelines deal with maximum shift length (which I discuss below) there are no other parameters dealing with the “span of hours”.

While clause 14.3(a) of the Agreement provides that ordinary hours would need to be worked between 7am and 7pm, a group flexibility agreement would enable agreement to work shifts that commence and end outside these hours provided the shift did not start earlier than 6am (e.g. the shift could not start at 1am in the morning).

Number of hours to be worked each day

In terms of the “number of ordinary hours worked each day”, clause 14.3 of the Agreement does not prescribe maximum daily hours but clause 14.2(a)(ii) does require that part-time employees are scheduled to work at least three hours on a work day.

Clause 15 of the Agreement deals with situations in which employees are engaged to work “variable hours” and sets out provisions dealing with “scheduled work” and “shiftwork”.

In relation to scheduled work and shiftwork, clause 15.2(f) of the Agreement provides that an employee won’t be required to work more than 10 ordinary hours at a time (unless working in accordance with an extended shift arrangement) and that minimum engagement times will be six hours in the field and four hours in contact centres.

Clause 22.3 of the Agreement has the effect that, if a group flexibility agreement is agreed to, the agreed ordinary hours of work each day need to be a maximum of 10 hours unless the agreement regarding maximum number of hours is in line with the Extended Shift Arrangement Guidelines.

In this regard, Item D.1.1 of Appendix D, which sets out the Extended Shift Arrangement Guidelines, enables shifts to be worked that are more than 10 hours and up to 12 hours in length (excluding breaks).

When these provisions are considered together, the effect of them is that, if a group flexibility agreement is reached, this agreement may permit:

· different minimum engagements to those set out in clause 14.2(a)(i) for part-time employees or those set out in clause 15.2(f) in relation to scheduled work and shiftwork; and

· the working of shifts that are more than 10 hours and up to 12 hours in length (excluding breaks).

Individual flexibility agreements

It is also worth noting that clause 21 of the Agreement provides for individual flexibility agreements to be made between the Respondent and individual employees with clause 21.3 providing that an agreement can deal with:

a)arrangements about when work is performed;

b)overtime and penalty rates;

c)allowances; and/or

d)leave loading.

The question for determination

The question for determination is whether clause 22 of the Agreement requires a group flexibility agreement to be entered into in order for an employee to be required to work shifts in excess of 10 hours.

For the reasons that follow, I find that agreement is required if a “shiftworker” is asked to perform “extended shifts”, being shifts in excess of 10 hours and up to 12 hours (excluding breaks), however such agreement need not be in the form of a group flexibility agreement, although it is one option that can be utilised.

As I have noted above, in terms of the “number of ordinary hours worked each day”, clause 14.3 of the Agreement does not prescribe daily maximum hours, although it does require that ordinary hours be worked Monday to Friday between the hours of 7am and 7pm (other than in the Northern Territory where the daily span is 6.30am and 6.30pm). Clause 16.1 of the Agreement also provides for an unpaid meal break of between 30 minutes and one hour after no longer than five hours of continuous work. The effect of these provisions means that on any given day an employee could not work more than 11 hours and 30 minutes (excluding breaks), absent a group flexibility agreement or individual flexibility agreement to vary the “number of hours that can be worked on each day”. In the case of a group flexibility agreement, this change would be limited to the parameters set out in the Extended Shift Arrangement Guidelines that enables shifts to be worked for up to 12 hours in length (excluding breaks).

However, for those who are “shiftworkers”, additional provisions in clause 15.4 of the Agreement apply, introducing daily limitations on the number of hours that can be worked.

In particular, clause 15.2(f) of the Agreement provides that an employee won’t be required to work more than 10 ordinary hours at a time (unless working in accordance with an extended shift arrangement).

Clause 15.4(g) of the Agreement has the effect that the Respondent may introduce shifts of up to 12 hours as long as this is in accordance with the Extended Shift Arrangement Guidelines in Appendix D. Importantly, Item D1.3 of Appendix D provides that:

“Telstra may ask but not require an employee who regularly performs shifts of up to 10 hours in length to perform extended shifts.”

While clause 15.4(g) of the Agreement has the effect that the Respondent may introduce shifts of up to 12 hours, if it does so, the limitation in Item D1.3 of Appendix D is emphasised in clause 15.4(g), with clause 15.4(g)(ii) stating:

“For the avoidance of doubt, where you regularly perform shifts of up to 10 hours in length, Telstra may ask, but will not require, you to perform extended shifts.”

The consequence of these provisions, read together, is that, if the Respondent wants employees who are shiftworkers to perform “extended shifts”, being shifts in excess of 10 hours and up to 12 hours, it cannot require employees who are shiftworkers to work these shifts. It would need to ask employees to work these shifts and they would need to agree to do so.

I observe that the inability to require an employee who is a shiftworker to work extended shifts does not impact their status as shiftworkers. Whether they are a shiftworker or not is a separate question for determination, depending on whether they have been engaged as a shiftworker or agreed to become one and I have already answered these questions in relation to the employees the subject of this dispute. This inability to require a shiftworker to work extended shifts does however give rise to some practical implications if the Respondent is seeking to implement an arrangement involving extended shifts that a shiftworker does not agree to work, particularly as clause 15.4(f) of the Agreement says a shiftworker “won’t be required to work more than 10 ordinary hours at a time”. Absent agreement to work extended shifts, the Respondent would need to roster shiftworkers with this limitation in mind.

For employees who are not shiftworkers, the practical implications of the ordinary working hours parameters in the Agreement means that on any given day (Monday to Friday) an employee could not work more than 11 hours and 30 minutes (assuming a minimum 30 minute break), absent a group flexibility agreement or individual flexibility agreement to vary the “number of hours that can be worked on each day”. In the case of a group flexibility agreement, this change would be limited to the parameters set out in the Extended Shift Arrangement Guidelines that enables shifts to be worked up to 12 hours in length (excluding breaks).

Conclusion

By way of summary, I have made the following findings in relation to the questions I have been asked to determine.

In relation to the question of whether the employees the subject of the dispute are shiftworkers in that they have, in accordance with clause 15.4(a) of the Agreement:

a.been engaged as a shiftworker; or

b.agreed to become a shiftworker,

I have found that:

· the employees in the Roamer cohort agreed to become shiftworkers when they negotiated the terms of the shiftwork arrangement in 2000 and have thereafter been engaged as such;

· Mr Markoski agreed to become a shiftworker when he took on the role of Mr Doyle, who was a shiftworker in the Roamer cohort, and has thereafter been engaged as such;

· the P1 Construction employees who took on “upgraded roles” or promotions in or around 2020 agreed to become shiftworkers and have thereafter been engaged as such; and

· the P1 Construction employees who commenced employment with the Respondent following their traineeships were engaged as shiftworkers and remain as such.

I have also provided an answer to the question of whether the absence of a reference to “permanent” in clause 15.4(a) of the Agreement means that an employee who is engaged as a shiftworker, or has agreed to become a shiftworker, has a right under clause 15.4 of the Agreement to unilaterally change their status such that they cease to be a shiftworker. In this regard, I have found there is no provision in clause 15.4(a) of the Agreement, or indeed clause 15.4 more broadly, that provides that an employee who is a shiftworker has a right to change their status such that they cease to be so. I have found the absence of the word “permanent” in the clause does not in itself give an employee a right to unilaterally change their status such that they cease to be a shiftworker. If such a right exists, it does not come from the Agreement but must come from somewhere else (such as the terms of the employment contract which would be beyond the jurisdiction of the dispute settling provision).

In relation to the question as to whether clause 22 of the Agreement requires a group flexibility agreement to be entered into in order for an employee to be required to work shifts in excess of 10 hours, I have found that, if the Respondent wants employees who are shiftworkers to perform “extended shifts”, being shifts in excess of 10 hours and up to 12 hours, it cannot require employees who are shiftworkers to work these shifts. It would need to ask employees to work these shifts and they would need to agree to do so. However, such agreement need not be in the form of a group flexibility agreement, although it is one option that can be utilised.

While I have answered the questions that I needed to have regard to in relation to the Agreement and determined the dispute, I make the following observations.

The skills that the employees the subject of this dispute have in relation to the Respondent’s technologies and the work activities that they do are of high importance to the Respondent and its customers and this is recognised by all parties.

Many of the employees the subject of this dispute are long serving and I accept that working night shifts may be challenging work for a variety of reasons. If employees have a concern that continuing to work in this way may not suit their circumstances at some point in time, it is apparent that their managers have historically been flexible in their approach by working with employees to land upon arrangements that work for both parties. It would be unfortunate if there was a shift in this culture as it would likely have negative impacts on employee engagement.

While the historically flexible approach adopted by the parties is commendable, in order to prevent disputes of this nature, the Respondent may wish to consider reviewing its template contracts and human resources practices to provide greater clarity in relation to the express terms of an employee’s engagement and any variations to them. While not determinative of this dispute, the advice of Human Resources to Mr Johnson after he took on his upgraded role was confusing and indicates that there is opportunity to enhance the understanding of the Human Resources team in relation to the operation of the provisions in the Agreement applicable to shiftworkers.

Finally, I observe that the employees the subject of this dispute have been working shiftwork for a considerable period of time without issue. However, they are clearly dissatisfied with the new shiftwork proposal put forward. While the decision regarding shift arrangements to be implemented is a decision for the Respondent (within the parameters of the Agreement), given the long and commendable history of employees and management being able to work collaboratively to find workable solutions, it would be unfortunate if common interests and a compromise cannot be identified. This is now a matter for the parties to consider.

COMMISSIONER

Appearances:

Mr D Dwyer on behalf of the Applicant.
Mr M Tamvakologos of Seyfarth Shaw on behalf of the Respondent.

Hearing details:

2022.
Sydney.
March 14, 15, 16 and 17.
April 28 (by Video using Microsoft Teams).

[1] Applicant, ‘Form F10 – Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure’, filed 12 December 2021, Attachment A, [21]-[25].

[2] Respondent, ‘Outline of Submissions’, filed 21 February 2022, [6].

[3] Respondent, ‘Submissions in support of permission to be legally represented’, filed 21 February 2022, [8]-[11].

[4] Applicant, ‘Representation by Lawyers: Applicant’s Submissions’, filed 4 March 2022, [5]-[6], [13]-[15].

[5] Applicant, ‘Witness Statement of Richard Anderson’, filed 17 January 2022, [2]-[11].

[6] Transcript of proceedings, 15 March 2022, PN1441-PN1445.

[7] Ibid, PN1509-PN1519.

[8] Applicant, ‘Witness Statement of Andrew Baker’, filed 17 January 2022, [2]-[14].

[9] Transcript of proceedings, 15 March 2022, PN1644.

[10] Ibid, PN1645.

[11] Ibid, PN1649-PN1652.

[12] Ibid, PN1654-PN1665.

[13] Applicant, ‘Witness statement of Billy Douroukis’, filed 17 January 2022, [3]-[13].

[14] Transcript of proceedings, 15 March 2022, PN1783-PN1785.

[15] Ibid, PN1846-PN1847.

[16] Ibid, PN1849.

[17] Ibid, PN1851-PN1855.

[18] Ibid, PN1859.

[19] Ibid, PN1861-PN1862.

[20] Ibid, PN1867.

[21] Applicant, ‘Witness Statement of John Messina’, filed 17 January 2022, [2]-[18].

[22] Transcript of proceedings, 15 March 2022, PN1249.

[23] Ibid, PN1251-PN1257.

[24] Ibid, PN1277-PN1290.

[25] Ibid, PN1262-PN1263.

[26] Ibid, PN1303-PN1304.

[27] Applicant, ‘Witness Statement of David Seychell’, filed 17 January 2022, [2]-[7], [13]-[15], [17]-[26].

[28] Transcript of proceedings, 16 March 2022, PN2976-PN2977.

[29] Applicant, ‘Witness Statement of Pasquale Frisina’, filed 17 January 2022, [2]-[12], [14], [16], [21]-[22].

[30] Applicant, ‘Witness Statement of Peter Kowalin’, filed 17 January 2022, [2]-[6].

[31] Ibid, [13]-[23].

[32] Applicant, ‘Witness Statement of Craig McAndrew’, filed 17 January 2022, [2]-[17].

[33] Respondent, ‘Witness Statement of Gary Evans’, dated 18 February 2022, [1]-[2], [5]-[14], [21], [26].

[34] Ibid, [15].

[35] Ibid.

[36] Ibid, [16].

[37] Ibid, [16]-[18].

[38] Ibid, [23].

[39] Ibid, [24].

[40] Ibid, [19], [21].

[41] Ibid, [20].

[42] Respondent, ‘Witness Statement of George Gorgievski’, dated 17 February 2022, [1]-[13], [21]-[23].

[43] Respondent, ‘Witness Statement of Martin Standish’, dated 17 February 2022, [1]-[7].

[44] Ibid, [8]-[9].

[45] Applicant, ‘Outline of Submissions’, filed 17 January 2022, [13].

[46] Ibid, [19]-[22]

[47] Ibid, [24].

[48] Ibid, [25].

[49] Ibid, [26].

[50] Ibid, [29]-[30].

[51] Ibid, [38].

[52] Ibid, [39].

[53] Respondent, ‘Outline of Submissions’, filed 21 February 2022, [20(a)].

[54] Ibid, [20(a)].

[55] Ibid, [20(b)].

[56] Ibid, [20(d)-(e)].

[57] Ibid, [20(e)].

[58] See, for example, cross-examination of Billy Douroukis, Transcript of proceedings, 15 March 2022, PN1876-PN1896.

[59] Transcript of proceedings, 15 March 2022, PN1900-PN2002.

[60] Applicant, ‘Witness Statement of Andrew Baker’, filed 17 January 2022, [12].

[61] Ibid, [8].

[62] Applicant, ‘Witness Statement of Billy Douroukis’, filed 17 January 2022, [9].

[63] Applicant, ‘Witness Statement of Craig McAndrew’, filed 17 January 2022, [9].

[64] [2017] FWCFB 3005.

[65] Ibid, [114].

[66] [2020] FCAFC 123.

[67] Ibid, [65].

[68] Transcript of proceedings, 28 April 2022, PN54.

[69] Ibid, PN223-PN224.

[70] [2006] WAIRC 5758, [45].

[71] Macquarie Dictionary Online (Macmillan Publishers Australia, 2022).

[72] Applicant, ‘Witness Statement of Richard Anderson’, filed 17 January 2022, [4].

[73] Applicant, ‘Witness Statement of Andrew Baker’, filed 17 January 2022, [4].

[74] Ibid, [5].

[75] See, for example, Applicant, ‘Witness Statement of Richard Anderson’, filed 17 January 2022, [5]; Applicant, ‘Witness Statement of Andrew Baker’, filed 17 January 2022, [5], [7]; Applicant, ‘Witness Statement of Billy Douroukis’, filed 17 January 2022, [5]; Respondent, ‘Witness Statement of Gary Evans’, filed 17 January 2022, [5].

[76] Applicant, ‘Witness Statement of Richard Anderson’, filed 17 January 2022, [7]-[8].

[77] Transcript of proceedings, 15 March 2022, PN1519.

[78] Applicant, ‘Witness Statement of Andrew Baker’, filed 17 January 2022, [8], [12].

[79] Transcript of proceedings, 15 March 2022, PN1649-PN1652.

[80] Applicant, ‘Witness Statement of Billy Douroukis’, filed 17 January 2022, [9].

[81] Transcript of proceedings, 15 March 2022, PN1851, PN1861-PN1862.

[82] Transcript of proceedings, 15 March 2022, PN1867.

[83] Applicant, ‘Witness Statement of David Seychell’, filed 17 January 2022, [25].

[84] Transcript of proceedings, 16 March 2022, PN3210.

[85] Applicant, ‘Witness Statement of Andrew Baker’, filed 17 January 2022, [6].

[86] Applicant, ‘Witness Statement of Craig McAndrew’, filed 17 January 2022, [7].

[87] Applicant, ‘Witness Statement of Pasquale Frisina’, filed 17 January 2022, [7].

[88] Applicant, ‘Witness Statement of David Seychell’, filed 17 January 2022, [18]-[20].

[89] Applicant, ‘Witness Statement of John Messina’, filed 17 January 2022, [8].

[90] Respondent, ‘Witness statement of Gary Evans’, dated 18 February 2022, [6]-[7].

[91] Applicant, ‘Witness Statement of Craig McAndrew’, filed 17 January 2022, [10]; Respondent, ‘Witness statement of Gary Evans’, dated 18 February 2022, [14].

[92] Applicant, ‘Witness Statement of David Seychell’, filed 17 January 2022, [25].

[93] Macquarie Dictionary Online (Macmillan Publishers Australia, 2022).

[94] Transcript of proceedings, 16 March 2022, PN3253.

[95] Respondent, ‘Witness Statement of Gary Evans’, dated 18 February 2022, [12].

[96] Transcript of proceedings 17 March 2022, PN4530-PN4537.

[97] Applicant, ‘Witness Statement of Corey Clancy’, filed 17 January 2022, [2]-[8].

[98] Ibid, [10]-[12].

[99] Transcript of proceedings, 15 March 2022, PN2243.

[100] Ibid, PN2255-PN2256.

[101] Ibid, 15 March 2022, PN2258-PN2260.

[102] Ibid, 15 March 2022, PN2265.

[103] Ibid, PN2275-PN2278, PN2333-PN2334, PN2337.

[104] Applicant, ‘Witness Statement of Cameron Hunt’, filed 17 January 2022, [2]-[11].

[105] Ibid, [16].

[106] Transcript of proceedings, 15 March 2022, PN2758-PN2767.

[107] Applicant, ‘Witness Statement of Tyler Johnson’, filed 17 January 2022, [2]-[10].

[108] Ibid, [11].

[109] Transcript of proceedings, 15 March 2022, PN2543.

[110] Transcript of proceedings, 15 March 2022, PN2567-PN2577, PN2588-PN2596.

[111] Applicant, ‘Witness Statement of Fred Tannous’, filed 17 January 2022, [2]-[20].

[112] Ibid, [23]-[24].

[113] Ibid, [24].

[114] Transcript of proceedings, 16 March 2022, PN3437-PN3461.

[115] Applicant, ‘Witness Statement of David D’Bais’, filed 17 January 2022, [2]-[4], [6]-[7], [10]-[15].

[116] Ibid, [19].

[117] Ibid, [20].

[118] Applicant, ‘Witness Statement of Aldrick Kalopita’, filed 17 January 2022, [2]-[6], [10]-[13], [18]-[19].

[119] Ibid, [17].

[120] Applicant, ‘Witness Statement of Christian Kotevski’, filed 17 January 2022, [2]-[9].

[121] Ibid, [12]-[13].

[122] Applicant, ‘Witness Statement of Brenden Marshall’, filed 17 January 2022, [2]-[9], [12]-[16].

[123] Applicant, ‘Witness Statement of Stephen Price’, filed 17 January 2022, [2], [4], [7]-[15].

[124] Ibid, [19].

[125] Applicant, ‘Witness Statement of Ritesh Bhakta Shrestha’, filed 17 January 2022, [2]-[3], [5-8].

[126] Ibid, [11].

[127] Applicant, ‘Witness Statement of Andrew Zbrog’, filed 17 January 2022, [2]-[3], [7]-[15].

[128] Respondent, ‘Witness Statement of Zdenko Bazina’, dated 18 February 2022, [1], [3], [5], [7]-[11], [13]-[17].

[129] Ibid, [18]-[21]

[130] Ibid, [22]-[27]

[131] Ibid, [28].

[132] Ibid, [29]-[33]

[133] Ibid, [34].

[134] Ibid, [35]-[36].

[135] Ibid, [40]-[45].

[136] Respondent, ‘Witness Statement of Nathan Davis’, dated 17 February 2022, [1]-[19].

[137] Ibid, [17.1].

[138] Ibid, [17.2].

[139] Ibid, [17.3].

[140] Ibid, [17.4].

[141] Ibid, [20].

[142] Ibid, [21]-[22]

[143] Applicant, ‘Outline of Submissions’, filed 17 January 2022, [13].

[144] Ibid, [64]-[67].

[145] Ibid, [66].

[146] Ibid, [58]-[60].

[147] Ibid, [61].

[148] Ibid, [35], [62].

[149] Ibid, [36].

[150] Ibid, [34].

[151] Ibid, [37].

[152] Ibid, [63].

[153] Respondent, ‘Outline of Submissions’, filed 21 February 2022, [22].

[154] Ibid, [22].

[155] Ibid, [23].

[156] Ibid, [24].

[157] Ibid, [25]-[28].

[158] Transcript of proceedings, 15 March 2022, PN2258-PN2260.

[159] Witness Statement of Corey Clancy at [7].

[160] Transcript of proceedings, 15 March 2022, PN2333-PN2334.

[161] Ibid, PN2275, PN2574-PN2577, PN2767.

[162] Ibid, 15 March 2022, PN2277-PN2278.

[163] Transcript of proceedings, 28 April 2022, PN113.

[164] Ibid, PN531.

[165] [2015] FWC 2461.

[166] [2020] FWCFB 4762, [17].

[167] Respondent, ‘Outline of Submissions’, filed 21 February 2022, [23(b)].

[168] Applicant, ‘Witness Statement of Christian Kotevski’, filed 17 January 2022, [6].

[169] Ibid, [7].

[170] Applicant, ‘Witness Statement of Ritesh Bhakta Shrestha’, filed 17 January 2022, [5]-[7].

[171] Ibid, [8].

[172] Applicant, ‘Witness Statement of Aldrick Kalopita’, filed 17 January 2022, [10]-[11].

[173] Respondent, ‘Witness Statement of Zdenko Bazina, dated, [18]-[21]

[174] Applicant, ‘Witness Statement of Elvis Markoski’, filed 17 January 2022, [2]-[5], [8]-[12].

[175] Respondent, ‘Witness Statement of George Gorgievski’, dated 17 February 2022, [15]-[18].

[176] Respondent, ‘Witness Statement of Kirk Ritchie’, dated 16 February 2022, [1]-[2], [4], [7]-[13].

[177] Applicant, ‘Outline of Submissions’, filed 17 January 2022, [52]-[55].

[178] Respondent, ‘Outline of Submissions’, filed 21 February 2022, [30]-[33].

[179] Respondent, ‘Witness Statement of George Gorgievski’, dated 17 February 2022, [17].

[180] Transcript of proceedings, 16 March 2022, PN3581-PN3583.

[181] Ibid, PN3588-PN3589.

[182] Ibid, PN3593-PN3595.

[183] Ibid, PN3599.

[184] Ibid, PN3601.

[185] Applicant, ‘Outline of Submissions’, filed 17 January 2022, [13].

[186] Ibid, [70].

[187] Ibid, [71].

[188] Ibid, [72].

[189] Transcript of proceedings, 28 April 2022, PN143, PN149-PN154.

[190] Ibid, PN112.

[191] Ibid, PN599.

[192] Ibid, PN599.

[193] Ibid, PN600.

[194] Ibid, PN608-PN609.

[195] Ibid, PN611.

[196] Ibid, PN613.

[197] Ibid, PN614-PN615.

[198] Ibid, PN617.

[199] Ibid, PN617.

[200] Ibid, PN618-PN619.

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