Construction, Forestry, Mining and Energy Union v Penrice Soda Products Pty Ltd

[2013] FWC 4804

[2013] FWC 4804

FAIR WORK COMMISSION

INTERIM DECISION

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

Construction, Forestry, Mining and Energy Union
v
Penrice Soda Products Pty Ltd
(C2013/4801)

SENIOR DEPUTY PRESIDENT O'CALLAGHAN ADELAIDE, 18 JULY 2013

Application to deal with a dispute - agreement dispute resolution provisions - arrangements to apply while dispute being resolved.

[1] On 18 June 2013 the Construction, Forestry, Mining and Energy Union (CFMEU) lodged an application pursuant to s.739 of the Fair Work Act 2009 (the FW Act) and the dispute resolution provisions of the Penrice Osborne Process & Day Workers Enterprise Agreement 2011 (the Agreement).

[2] This dispute was the subject of an extensive conference with me on 11 July 2013. The dispute relates to work function changes proposed by Penrice Soda Products Pty Ltd (Penrice) for five employees classified as Power Technicians under the Agreement. The CFMEU position is that these changes are of a character which means that these employees should be offered redundancies.

[3] The Penrice position is that whilst there continues to be a requirement for these employees to undertake Power Technician duties, the demand for this work has reduced and that accordingly, Penrice propose to train these employees to undertake additional work at a comparable classification level.

[4] The parties have been unable to reach agreement on this matter to date, although, under the agreed terms of a Statement I issued on 11 July, they continue to have the opportunity to reach an agreed position. If no agreement can be reached I have indicated that I will initiate a further conference to discuss the arbitration of the matter in dispute.

[5] In this context a subsidiary dispute has arisen in that Penrice has advised that it requires these employees to continue to participate in "on the job training" directed toward ensuring that they are able to undertake the changed duties. Penrice has proposed that the Power Technicians undertake these training activities on a without prejudice basis pending resolution of the overall dispute. The CFMEU has advised that the Power Technicians do not wish to undertake those training functions. Both parties refer to the Agreement dispute resolution provisions in support of their respective positions about interim work arrangements applicable to the Power Technicians. This decision deals specifically with this interim issue.

[6] The Agreement dispute resolution provisions set out the process for the resolution of disputes relative to matters arising under the Agreement or the National Employment Standards. That process culminates in a reference of the dispute to the Fair Work Commission in the following terms:

“....

If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter for Fair Work Australia.

Fair Work Australia may deal with the dispute in 2 stages.

a) Fair Work Australia will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and

b) If Fair Work Australia is unable to resolve the dispute at the first stage, Fair Work Australia may then:

a. arbitrate the dispute; and

b. make a determination that is binding on the parties.

Note If Fair Work Australia arbitrates the dispute, it may also use the powers that are available to it under the Act.

A decision that Fair Work Australia makes when arbitrating a dispute is a decision for the purposed of Div 3 of Part 5.1 of the Act. Therefore, an appeal may be made against the decision.

While the parties are trying to resolve the dispute using the procedures in this term;

a) an employee must continue to perform his or her work as he or she would normally unless he or she has a reasonable concern about an imminent risk to his or her health or safety; and

b) an employee must comply with a direction given by the employer to perform other available work at the same workplace, or at another workplace, unless;

a. the work is not safe; or

b. applicable occupational health and safety legislation would not permit the work to be

performed; or

c. the work is not appropriate for the employee to perform; or

d. there are other reasonable grounds for the employee to refuse to comply with the direction.

The parties to the dispute agree to be bound by a decision made by Fair Work Australia in accordance with this term.”

[7] I have applied the jurisdiction established by this clause to the resolution of this interim issue.

[8] In the Statement I issued at the conclusion of the conference on 11 July 2013 I stated:

“[8] While these considerations continue, Penrice expects the employees to continue to participate in ongoing training arrangements on a without prejudice basis.

[9] If that requirement is not accepted by the CFMEU on behalf of its members, advice to this effect, together with the position proposed by the CFMEU will be provided to both myself and to Penrice by 10.00 am Monday 15 July 2013. This advice may address the dispute resolution provisions of the Agreement. In that event, Penrice will have until 10.00 am Tuesday 16 July 2013, to provide to both myself and the CFMEU its proposed position. I would anticipate making a recommendation limited to the interim work arrangements as soon as possible after that.

[9] The CFMEU and Penrice have provided written submissions relative to this interim issue.

[10] The CFMEU position is that, for the purposes of the Agreement dispute resolution clause, work and training are not interchangeable concepts. The Power Technicians have only agreed to undertake training to date for fear of dismissal. Clause 46 of the Agreement requires that agreement be reached on any changes to the Power Technicians' work. The detail of the Penrice training requirements has not been specified or agreed. The Power Technicians should not be required to undertake training as this does not reflect the status quo which, under the Agreement, should prevail pending resolution of the matter in dispute. The CFMEU asserts that the imposition of the training has been highly stressful for the Power Technicians and this is not conducive to effective learning. The CFMEU asserts that the training requirement reflects an unreasonable level of control on the part of Penrice and that the Power Technicians should only be required to undertake their traditional duties. Further, that pending resolution of the matter, Penrice should engage supplementary labour to undertake any functions outside of the traditional Power Technician roles.

[11] The Penrice position is that three of the five Power Technicians commenced the additional training without protest and have almost finished the training. The only employee to register a protest with respect to the training has also nearly finished that training. A fifth employee remains on extended training and this employee has been temporarily replaced by a contractor.

[12] Penrice assert that the Agreement dispute resolution provisions require that employees continue their work, including training, pending resolution of the matter, unless there is an imminent risk to safety. Penrice advise that the training is entirely "on the job" and cannot be distinguished from work functions. Penrice assert that the training is consistent with the Power Technician functions, and reflects a reasonable employer request. Finally, Penrice agrees that the training should be undertaken on a without prejudice basis pending resolution of the matter in dispute.

Conclusions

[13] In the course of arguments over the resolution of the matter in dispute, the parties may make submissions about the effect and application of clause 46 of the Agreement to this particular issue. That clause details an approach to the following circumstances:

“Structural Change

The parties to this agreement recognise the need for a more flexible approach to the hours of work, general conditions of employment and working arrangements.

Specific trial arrangements of alterations to the ordinary hours of work, general conditions of employment and or working arrangements shall be permissible in accordance with the following procedure, and in accordance with clause 8 Consultative Procedures.

....”

[14] For the purposes of this particular interim issue, I do not consider this clause prohibits the continuation and completion of the training. The application and import of the clause to these circumstances has yet to be considered and I am concerned that, if this clause is applied to require agreement before any changes of the nature proposed are made, the Penrice capacity to meet its obligations under the Agreement with particular reference to the Redundancy Agreement provisions, then becomes unclear. As a consequence, until the primary dispute is addressed, I am not prepared to prohibit the completion of the current training on the basis of clause 46.

[15] In terms of the Agreement dispute resolution provisions, I am not satisfied that there is any significant distinction between on-the-job training and work. The provisions of Clause 25 relative to arrangements that apply while a dispute is being resolved should be read as providing for ongoing work as directed unless there is a safety imperative or other reasonable grounds that prevent this. I am not satisfied that the allegations of a stressful on-the-job training environment represent a basis upon which to stop the training programme which is nearly complete or that the requirement to undertake this training and the associated work which accompanies and no doubt follows it, is so unreasonable that it should not be undertaken provided this is done on a without prejudice basis.

[16] The alternative to this position appears to me to be inappropriate. There is no dispute that Penrice is in the process of making major operational changes which reflect changed market conditions. The proposition that it suspends an on the job training initiative which is nearly completed, engages labour hire employees to be trained while the existing Power Technicians are under-utilised, pending the determination of the primary issue in dispute, seems to me to be illogical. The balance of convenience clearly supports the continuation of the current training and work allocation arrangements until this issue is resolved.

[17] Consequently, I have concluded that the current training should continue on a without prejudice basis. Further that the Power Technicians should undertake the functions addressed in the training, again on a without prejudice basis, pending determination of the primary issue in dispute. In the event that the CFMEU, or any of the Power Technicians themselves believe that the requests of them represent an unacceptable safety risk, that concern should be addressed immediately, through the appropriate workplace processes. In the event that further changes are proposed by Penrice, which the CFMEU consider to be unreasonable, I will further consider these interim arrangements.

[18] Consistent with the approach agreed at the conference on 11 July 2013 the primary dispute will be relisted shortly after 22 July 2013, subject to a request from either party to this effect.

SENIOR DEPUTY PRESIDENT

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