Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of AustraliavSPI PowerNet Pty Ltd; SPI Electricity Pty Ltd
[2011] FWA 5825
•26 AUGUST 2011
[2011] FWA 5825 |
|
EX TEMPORE DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
SPI PowerNet Pty Ltd; SPI Electricity Pty Ltd
(C2011/5217)
SPI POWERNET & SPI ELECTRICITY - ETU ENTERPRISE AGREEMENT 2010-2013
(ODN AG2010/18953) [AE882041]
Electrical power industry | |
COMMISSIONER LEWIN | MELBOURNE, 26 AUGUST 2011 |
Alleged dispute concerning changes affecting income of employees.
[1] This is an application for Fair Work Australia to deal with a dispute in accordance with a dispute settlement procedure under section 739 of the Fair Work Act 2009. The dispute arises under the terms of the SPI PowerNet and SPI Electricity - ETU Enterprise Agreement 2010-2013. That enterprise agreement includes a term that provides a procedure for dealing with disputes, as identified in s.738(b) of the Act.
[2] The dispute concerns a reorganisation of areas within which first response decisions are made affecting employees who are covered by the agreement in relation to responses to faults in the electricity distribution system operated by the company. The company proposes to change the depot boundaries within which employees, who work from various depots within what is described as the Northern Region of the company's operations, will be directed to respond to fault notifications. The change in those boundaries has been in dispute for some time. The dispute is between the employees of SPI PowerNet, the Electrical Trades Union and SPI PowerNet. The effects of the changes to the depot boundaries of the Benalla depot are the subject of the dispute.
[3] The dispute involves whether or not the changes proposed to the boundaries in the northern region are subject to clause 68, Introduction of Change, of the agreement. The provisions of clause 68 are set out below:
“68. INTRODUCTION OF CHANGE
68.1 It is recognised that from time to time the technology, business structures and processes of the companies will be changed to allow the companies to operate in a changed environment, which requires it to remain an efficient and cost effective business.
68.2 When the companies have made a decision to introduce changes in production, workplace location, program, outsourcing, organisational structure or technology, or any other change that will have an effect on employees or that will impact on employees, the companies will notify the employees who may be affected and the Unions.
68.3 The companies shall discuss with the employees affected and the Unions, the effects the changes are likely to have on employees and measures to minimise their impact on employees and shall give prompt consideration to matters raised by employees and the Unions. Implementation of the proposed changes will not be effected until agreement is reached between the parties.
68.4 If agreement is not reached, either party may refer the matter in accordance
with the Disputes Resolution Procedure of this Agreement. The company maintains that the changes involved are not subject to that clause which the ETU maintains that they are.”
[4] SPI PowerNet maintains that the changes involved are not subject to clause 68, the ETU maintains they are.
[5] It is of importance to note that clause 68 includes, at clause 68.4, a provision to the effect that if changes, which are subject to the clause, are not agreed between the parties, either party may refer the matter in accordance with the disputes resolution procedure of the agreement.
Dispute Settlement Procedures of the Agreement
[6] There is no suggestion that this dispute does not come before the tribunal - regardless of the operation of clause 68 - under clause 7 of the agreement, Dispute Resolution Procedure. The provisions of clause 7 are set out below:
“7. DISPUTE RESOLUTION PROCEDURE
7.1 This procedure applies with respect to the following matters:
(a) the terms of this agreement;
(b) a matter that would fall within the scope of “permitted matters” as defined by the Fair Work Act 2009 (excluding “unlawful content” as defined by the Fair Work Act 2009); and
(c) the National Employment Standards.
7.2 At all stages of the procedure, a party to the dispute may appoint another person, organisation or association, which may include the Union, to accompany or represent them in relation to the dispute.
7.3 In the first instance, the parties to the dispute must try to resolve the dispute
at the workplace level, by discussions between the employee or employees and relevant supervisors.
7.4 If the matter is not resolved according to clause 7.3 above, the matter will be referred to the appropriate line manager who will attempt to resolve the matter.
7.5 If still unresolved, the matter will be immediately referred to the appropriate General Manager, the Workplace Relations Manager and the relevant employee representative, if requested by the employee.
7.6 If the parties agree, the matter may go to an independent mediator (from an agreed list between the parties) before the matter being referred to the step set out in 7.7. Where mediation has been unsuccessful the parties may agree that the mediator propose in writing a resolution for the parties to consider.
7.7 If still unresolved or the parties don‟t agree to go to mediation , the matter will be referred to Fair Work Australia (FWA) by either party for resolution, which includes conciliation, and arbitration, if necessary, and the parties shall abide by any outcome. If arbitration is necessary, the FWA may exercise its procedural powers in relation to hearings, witnesses, evidence and submissions which are necessary to make the arbitration effective.
Note: Any or all of steps 7.4 and 7.5 may be by-passed in the interests of a speedy resolution to the matter.
7.8 Further it is agreed:
(a) The parties will monitor the implementation of this Agreement and cooperate in resolving any problems which might arise in giving effect to any part of this Agreement.
(b) The Parties will attempt to settle any dispute quickly;
(c) While the dispute is being progressed through the steps in this procedure, the parties agree that the status quo at the time of the commencement of the dispute shall prevail;
(d) From the time a dispute first starts to when it is resolved, normal work shall continue, unless the performance of that work would place at risk the health and/or safety of the employee(s) concerned.
(e) If a dispute arises in relation to work practices, the company will revert to the work practice(s) in place prior to the dispute arising.
(f) Shop stewards will be allowed the necessary time/resources to properly represent their members, including reasonable time to where necessary meet with accredited union officials.
7.9 Anti Discrimination
(a) It is the intention of the respondents to this agreement to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
(b) The parties must make every endeavour to ensure that neither the agreement provisions nor their operation are directly or indirectly discriminatory in their effects.”
[7] In my view, the subject matter of the dispute is a permitted matter as defined by the Fair Work Act 2009 and the scheme of the dispute settlement procedure of the agreement is that any subject which is a permitted matter which comes into dispute between the parties to the agreement is a dispute to be dealt with in accordance with the dispute settlement procedures of clause 7.
Application of Clause 68 to the subject of the application
[8] I shall first decide whether or not clause 68 applies to the subject matter of the dispute. It is important to note that clause 68 contemplates changes to business structures and processes to enable the company to operate in a changed environment, which requires it to remain an efficient, cost-effective business. When the company has made a decision to introduce changes in production, workplace location, program outsourcing, organisational structure or technology, or any other change that will have an effect on employees or that will impact on employees, the company is required to notify the employees who may be affected and “the unions”.
[9] On the evidence before me, I am satisfied that this dispute is about a matter, namely, the change to the boundaries for first response decisions in relation to fault rectification which will have an effect and an impact on the employees based at the Benalla depot. That effect, it is clear from the evidence, is that those employees will not necessarily have the same opportunities to perform overtime work and receive payment for overtime in the same manner prior to the change of the boundaries proposed.
[10] Therefore, there was an obligation under clause 68 for SPI PowerNet to notify the employees concerned of the change, which was done. Likewise, clause 68.2 requires that the "unions" also be notified, which was also done.
[11] Subsequently, clause 68.3 places a requirement on the company to discuss with those employees and “the unions” the effects the changes are likely to have on the relevant employees and measures to minimise the impact of the changes on employees and give prompt consideration to matters raised by employees and the union. It seems to me the employees the subject of clause 68.3 are the same employees the subject of clause 68.2. Therefore, the employees of the Benalla depot are affected by changes which are subject to the operation of clause 68 of the agreement.
[12] Clause 68.3 provides that, "Implementation of proposed changes will not be affected until agreement is reached between the parties." In my view, this sentence operates in such a way as to ensure that consultation about changes in the form of discussions following the requisite notification must occur and allows those discussions to occur without the implementation of the proposed changes until agreement is reached. Once the employer has notified, in accordance with clause 68.2, and held the discussions contemplated by 68.3, in the absence of agreement, clause 68.4 of the agreement provides that either party may refer the matter to Fair Work Australia in accordance with the dispute resolution procedure of the agreement.
[13] In my view the application in this matter is the enactment of the provision of clause 68.4 and invokes the operation of clause 7 of the agreement. I am satisfied that clause 7 of the agreement has been complied with up to the point of the provisions of clause 7.7 of the agreement, which provide that Fair Work Australia may, if necessary, arbitrate the dispute over the changes and the parties shall abide by any outcome. The tribunal has, pursuant to clause 7.7 as set out above, exercised its procedural powers in relation to hearing of witnesses' evidence and submissions as necessary to make the appropriate arbitration effective.
[14] Having heard the evidence and submissions in relation to the matter, I have come to a conclusion and I decide by arbitration pursuant to the provisions of clause 7.7 of the agreement, for the purposes of clause 7 generally, that SPI PowerNet shall be entitled to organise first response directions to employees in the northern region within the boundaries shown in Exhibit A2 at page 6 thereof.
[15] I reserve for further consideration the issue of whether or not the employees based at the Benalla depot should receive any compensation for the effects of the change to the first response boundaries of the northern region as contained in Exhibit A2 at page 6.
[16] I direct that SPI PowerNet meet and confer with the representative of the employees at the Benalla depot to discuss the impact and effects of the relevant changes before 31 October. The matter will be relisted, if a request is received, to consider any further material or submissions in relation to the appropriateness or otherwise of any compensation in relation to the effect of the changes to the depot boundary on the employees at the Benalla depot. No decision of that question is made and no conclusion that any compensation should be provided for those employees has been arrived at. No expectation of any such compensation should arise.
[17] This decision will have effect from 29 August 2011.
COMMISSIONER
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