CPSU, the Community and Public Sector Union v Department of Immigration and Border Protection

[2017] FWC 3246

[2017] FWC 3246

FAIR WORK COMMISSION

DECISION

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

CPSU, the Community and Public Sector Union
v
Department of Immigration and Border Protection
(C2017/550)

Commonwealth employment
COMMISSIONER BOOTH	BRISBANE, 23 JUNE 2017

Alleged dispute about negotiating an agreed outcome re proposed roster changes.

[1] In this matter, the Community and Public Sector Union (CPSU) asks the Fair Work Commission (the Commission) to deal with a dispute under s.739 of the Fair Work Act 2009 (the Act) with the Department of Immigration and Border Protection (DIBP).

[2] Prior to this matter being allocated to me for arbitration, the parties participated in a number of conferences before Commissioner Simpson. During those conferences, Commissioner Simpson concluded that as all reasonable attempts to resolve the dispute had been exhausted and that as he had formed views about the likely outcome of the matter if it proceeded to arbitration, he published a Recommendation to the parties. However, the dispute was not resolved following the Recommendation.

[3] The CPSU was represented by Mr Barlow, instructed by Ms Mutton and Ms Marsh. The DIBP was granted leave to be legally represented by Mr Forbes.

[4] This dispute arose following concerns about a proposal by the DIBP to introduce a single roster governing all its Brisbane sites, described as a whole of Regional Command roster (WOC roster). The WOC roster ‘facilitates cross deployments of officers in order to manage workload and operational requirements within the Regional Command.’¹

[5] Five Brisbane sites are affected including the airport, port, and three other sites. Each has its own roster arrangements, differing on the roster period, length of shifts, span of hours, and rate of attendance². One key element of the WOC roster is the attendance rate, the requirement for employees to attend work on a percentage of days in a given period while maintaining the number of hours worked. As will be explained below, the figure in dispute here is 60%. That percentage would mean for some, but not all employees, an increase in the number of days they are required to attend work as ordinary hours. The CPSU describes the number of days of attendance as the key central driver of the roster pattern.

The enterprise agreement and policy

[6] The Department of Immigration and Citizen Enterprise Agreement 2011 to 2014 (the Agreement) is the relevant agreement for the purposes of this dispute. It was approved prior to the formation of the current DIBP and it remains in force though past its nominal expiry date of 30 June 2014.

[7] The CPSU relies on clause 2.2 (consultation procedures) and clause 8.4 (shift rosters).

2.2 Consultation procedures

The department will consult with employees and their representatives on workplace matters affecting them, seek input on and consider these matters, provide feedback, and genuinely seek to reach agreement with employees and their representatives on these matters where the department has control, wherever possible before a decision is made.

8.4 Shift rosters

Rosters are to be determined by negotiation between the employee and their manager and equitably shared among employees in the work area. Where possible the roster is to have a forward rotation of shifts, for example day shift followed by night shift. Conditions relating to change of shift notice and posting of rosters will be discussed at the local work area level.

[8] Additionally the CPSU contends that under Clause 1.7 - Policies and Guidelines, the DIBP’s Shiftwork and Rosters Policy requires employees to have genuine input into roster design and this did not occur. As a result, it contends, until there is compliance with those provisions, no new roster can be decided upon and implemented.³ The clause reads as follows:-

1.7 Policies and guidelines

The application of this Agreement is supported by departmental policies and guidelines, including but not limited to the workplace diversity plan. This Agreement prevails over the policies and guidelines to the extent of any inconsistency. Policies and guidelines which relate to this Agreement will be developed or varied in consultation with the National Staff Consultative Forum, and published on the department’s intranet site. Any dispute over the application of policies and guidelines which support the application of this Agreement will be managed under the dispute resolution procedures at clause 1.8 of this Agreement.

Questions for arbitration

[9] The parties agree on the following questions for arbitration:-

(i) What is the proper interpretation of:

(A) clause 2.2 (consultation); and

(B) clause 8.4 (rosters);

of the DIAC EA;

(ii) having regard to the proper construction of clauses 2.2 and 8.4, has the Department met its obligations under the DIAC EA prior to implementing a proposed roster change for the whole of the Brisbane area of Regional Command Queensland (referred to as whole of Regional Command); and

(iii) in the context of the Department's proposal for a whole of Regional Command roster and with reference to clause 1.7 of the DIAC EA, did the Department act consistently with clause 21.5 of the Shiftwork and Rosters Policy 2015 (Policy)?

[10] Clause 21.5 of the Policy referred to in arbitration question (iii) reads:

Consultation will be timely, take into account the views expressed by employees and their representatives and provide employees genuine input into roster design the terms of reference underpinning the review.

The dispute

[11] The heart of the CPSU’s dispute is that the DIBP failed to comply with the consultation requirements under the Agreement because of the way it proposed the change from the separate rosters to the WOC roster. The CPSU disputes⁴ that the DIBP can introduce the WOC roster without fully meeting the requirements of the consultation clause and the rosters clause. In particular, it contends that there was no consultation about the 60% figure it says is central to the roster arrangements. The CPSU’s case is that the DIBP did not, or did not adequately, meet its consultation obligations under the Agreement principally because it consulted after it had decided on the 60% figure.

[12] The DIBP contends that it has complied with its consultation obligations under the agreement. Its case is that consultation always depends on the circumstances, and that it must also be contextualised. It suggests that the consultation obligation arose when there is a formed or concrete or tangible matter which has the capacity to affect employees⁵ and that occurred in August 2016. It consulted once it had a proposal about the WOC roster (which included a decision which took into account a significant number of competing considerations including: the need to redeploy across the whole of the Regional Command, the number of days attendance, reduction in overtime, and fatigue management).

Background

[13] To assist the Commission the parties prepared a joint timeline of events. The facts described in this background draw from that timeline as well as the evidence and submissions of the parties.

History of the WOC Roster

[14] Following the identification in 2014 by the then Australian Customs and Border Protection Service (Customs) of a need to create and implement a new roster across the entire Regional Command, a Regional Roster Working Group (RRWG) was created to carry out a review of rostering arrangements. The CPSU was a member of this group. Regular meetings were held within this group and Terms of Reference were proposed and agreed. In May 2015, an email was sent to all staff advising that a review of rostering arrangements across the entire command was being developed. The Terms of Reference were included with this attachment.

[15] On 1 July 2015, Customs merged with the DIBP and The Department of Immigration and Citizen Enterprise Agreement 2011 – 2014 began to apply to all employees who moved from Customs to DIBP.

[16] The parties agree that the progress on roster review stalled while relevant work areas focused on issues associated with integration.

[17] In early January 2016, Regional Commander, Mr Price directed Ms Hines the Inspector Chief of Staff to progress the roster review. Having raised the possibility of outsourcing this task to an expert external provider with the RRWG, essentially due to the complexity of the task, Ms Hines deposed:

“Around that time in discussions with some members of the RRWG, there was a general consensus that we had not been able to progress the roster review or design a whole of Regional Command roster solution ourselves because the task was just too complicated and there were too many competing interests to take into account.”⁶

[18] Shiftwork Solutions was chosen to conduct the roster review. In March and April 2016 Shiftwork Solutions met with the various work areas; and on 5 April 2016 Ms Hines informed Ms Danielle Mutton, a CPSU organiser, they wished to meet with the CPSU, stating the DIBP was looking for an indication of what staff were looking for from any new roster.

[19] Mr Tamplin, CPSU delegate, was one of the staff members interviewed. His evidence is that this meeting was purely a data gathering exercise.⁷

[20] Ms Mutton noted in an email some matters from the meeting with Mr Price which included potential contacts within the CPSU, timing of their response, and the views of the CPSU members at Brisbane airport. On the last point, she says:

“… Our members don’t want an interim change to their current roster & instead, Airport Management should wait until they see what comes out of the Shiftwork Solutions whole of ABF Command roster project for the Brisbane area before making future changes to the roster.”⁸

[21] In May 2016, Shiftwork Solutions prepared a report or “preliminary working document” called Roster Analysis Design an Advisory Report (the first report).

[22] Mr Price’s statement notes that the first report did not contain an actual roster or options or information which he says the DIBP could sensibly consult with staff about. Mr Price’s evidence is that it was a confusing document primarily reproducing information gathered by Shiftwork Solutions from all parties.⁹

[23] A Roster Working Party (RWP) was formed by the DIBP to consider management questions posed by Shiftwork Solutions. Membership comprised management representatives but it did not include a CPSU or employee representative. On 1 June 2016 Shiftwork Solutions provided the DIBP with a further working document called Additional Roster Design Report (the second report).

[24] On 3 June 2016 a meeting was held between the DIBP and Shiftwork Solutions to discuss the DIBP’s operational requirements. Mr Price’s evidence was that the operational requirements would need to ensure that sufficient employees were rostered on during the peaks without relying heavily on overtime or creating a surplus of employees during the troughs.¹⁰

[25] A further meeting on 3 June 2016 between the DIBP and Shiftwork Solutions discussed operational requirements including the attendance rates necessary to meet those operational requirements.

Attendance Rates

[26] The attendance rate is an expression of the percentage of attendance against calendar days. By way of example, a Monday to Friday worker has an attendance rate of approximately 70%.

[27] For a fixed number of hours over the period, a lower attendance rate (e.g. 60%) is achieved by working longer hours on fewer days.

[28] Current attendance rates vary across the Brisbane rosters with the airport the lowest at 53.5%; the highest attendance rate is 62%.

[29] By 14 June 2016 a target attendance rate of 60% was being considered by the DIBP. The parties dispute whether that percentage was endorsed (the DIBP’s position)or decided (the CPSU’s).

[30] Subsequent to that date and based on the 60% attendance rate, Shiftwork Solutions prepared the Rosters Option Report (21 June report) with originally four and then three sample roster patterns.

[31] In late June 2016, Ms Mutton emailed Ms Hines about rumours the DIBP had received sample rosters. Ms Hines advised a plan for consultation was being prepared in July.

[32] On 9 August 2016, Ms Hines sent an email advising CPSU delegates the DIBP was ready to present options prior to consulting more widely with staff.

[33] On 15 August 2016, the DIBP met with representatives of CPSU to discuss proposed roster options prepared by Shiftwork Solutions.

[34] At that meeting the 60% attendance rate was discussed. Ms Mutton enquired “Is there any wriggle room?”. While there is a dispute over the exact words used in response to this question, it is agreed is that there was no change to the rate.

[35] CPSU delegates then provided feedback on the consultation plan.

[36] On 17 August 2016, a consultation period opened with workplace consultation meetings held at each of the areas. Employees were invited to provide feedback on proposed roster changes by an email address.

[37] Over the next week it is agreed that Mr Price met with Ms Mutton and a group of CPSU delegates to listen and respond to their concerns in relation to the roster, this included discussion on the 60% attendance rate and the lack of vote on the proposed rosters.

[38] On 25 August 2016 although other concerns had been raised CPSU’s concerns focused on:-

• the RWG, which did not have a member of the CPSU; and



• the 60% attendance rate.

[39] Subsequently, the consultation period was extended in response to employee concerns. Ms Hines worked with the RWP to consider the feedback from employees and the CPSU.

[40] The implementation was delayed to provide feedback and prepare for implementation.

[41] On 9 September 2016, Mr Price sent a detailed letter to Ms Mutton in response to concerns about both the report and consultation.

[42] On 20 September 2016, the DIBP provided a summary of feedback and that on the basis of feedback from staff on the three proposed roster models. Staff preferred Roster Option B.

[43] At this stage a commencement date was suggested but further delayed following employee and employer concerns about the practicalities of implementation.

[44] On 20 January 2017 the CPSU notified the DIBP of this dispute. Since that time, and in accordance with the Agreement, the status quo has been preserved, meaning that while this dispute is before the Commission the original roster arrangements remain in place.

The Law

[45] The starting point in interpreting agreements is the Full Bench decision in The Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd.¹¹

From the foregoing, the following principles may be distilled:

1. The [Acts Interpretation] Act does not apply to the construction of an enterprise agreement made under the Act.

2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.

3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:

(a) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(b) notorious facts of which knowledge is to be presumed;

(c) evidence of matters in common contemplation and constituting a common assumption.

7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.

8. Context might appear from:

(a) the text of the agreement viewed as a whole;

(b) the disputed provision’s place and arrangement in the agreement;

(c) the legislative context under which the agreement was made and in which it operates.

9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.

10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

[46] In this matter, the parties agree that the relevant clauses are unambiguous but suggest different interpretations as to their meaning.

[47] As to principles of interpretation of consultation clauses, the leading authority is the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited case (QR):

… A key element of that content [of an obligation to consult] is that the party to be consulted be given notice of the subject upon which that party’s views are being sought before any final decision is made or course of action embarked upon. Another is that while the word always carries with it a consequential requirement for the affording of a meaningful opportunity to that party to present those views. What will constitute such an opportunity will vary according the nature and circumstances of the case. In other words, what will amount to “consultation” has about it an inherent flexibility. Finally, a right to be consulted, though a valuable right, is not a right of veto.

To elaborate further on the ordinary meaning and import of a requirement to “consult” may be to create an impression that it admits of difficulties of interpretation and understanding. It does not. Everything that it carries with it might be summed up in this way. There is a difference between saying to someone who may be affected by a proposed decision or course of action, even, perhaps, with detailed elaboration, “this is what is going to be done” and saying to that person “I’m thinking of doing this; what have you got to say about that ?”. Only in the latter case is there “consultation” ...¹²

[48] As to the limits of consultation, the authorities state that consultation is not joint decision-making or even a negative or frustrating barrier to the prerogative of management to make decisions.¹³

[49] A useful summary of the obligation is in The Australian Licensed Aircraft Engineers Association v Forstaff Avalon Pty t/a Forstaff Aviation (Forstaff), in which Deputy President Booth wrote:

I conclude that the approach taken in decisions of the Commission, its predecessors and the Federal Court on the obligation to consult puts the spotlight on the following:

• the importance of timely and sufficient information both in relation to the reason for the decision and the likely impacts thereof;



• the need to commence consultation before an irrevocable course of action has been embarked upon;



• sufficient time and appropriate arrangements, such as meetings, for a thorough exchange of information and views to take place;



• the obligation on those being consulted to engage and consider the other party’s interests;



• consultation is not to be used as a means of frustrating change;



• the modification of one party’s decision is not a necessary outcome, however, listening and considering any proposed modification is essential;



• consultation is a fetter on the unilateral right of the party with the authority to make decisions, however, ultimate decision making rests with that party. For example, in the case of an employer considering the introduction of new technology, the decision on whether to do so, what technology to install and how to go about it, including changes to employee numbers or roles is ultimately their decision.¹⁴

CPSU’s case

[50] The CPSU provided extensive submissions both on the nature of the consultation clause and the meaning in the clause of a ‘workplace matter’.

Consultation clause

[51] The CPSU submits the disputed clause requires more consultation than happened with affected employees and the union because the obligation on the DIBP is to ‘genuinely seek to reach agreement’.

[52] In final submissions, Mr Barlow differentiated between ‘joint decision-making’ and genuine influence. In regard to genuine influence he submits this clause goes further because it requires the employer to genuinely seek to reach agreement with employees and representatives on these matters. He submits the effect is to provide a genuine opportunity to influence the decision maker. As well, the decision maker must be open to trying to reach agreement on matters before a decision is made.¹⁵

[53] In the CPSU’s submission that requires an openness to modify proposals and a genuineness to try and address the concerns raised in opposition to the proposal, to mediate them and try to reach agreement.

Workplace Matter

[54] The CPSU contends that the DIBP did not consult on the ‘workplace matter’ referred to in Clause 2.2. The CPSU accepts that the workplace matter the subject of consultation was the introduction of the whole of command roster pattern. The dispute according to the CPSU is about the ‘central key driver’ of that roster pattern, the 60% attendance rate, about which it says the DIBP made no attempt to consult or agree with affected employees¹⁶.

[55] It is the submissions of the CPSU that at the time of creation of the second report the DIBP had a proposal but the decision-maker had not yet made a decision.¹⁷ Mr Barlow contends the obligation was to afford a genuine opportunity to influence the decision-maker about the 60% figure.

[56] Further, the CPSU argued the clause imposes an obligation on the DIBP to be genuine in its intent: authentic and honest in seeking to ‘reach agreement’. This must happen before a decision is made and the DIBP needs to be open to changing or modifying its proposal to meet objections to try and obtain employee and CPSU agreement on that proposal.

[57] In the CPSU’s submission, contrary to the DIBP, the clause is not aspirational but an important operative clause. Clause 2.2 should not be read down or constrained by clause 2.1. It argues clause 2.2 imposes a stronger obligation of consultation on the DIBP compared to the usual consultation clause.

[58] As to the consultation in this matter, Mr Barlow put it so: consultation after 15 August was limited. Mr Barlow said he believed many staff chose roster Option B mostly based upon the ‘least worst’ option; there was no direct evidence from employees as to their reasons for choosing Option B. All options were based on 60%.

Respondent submissions

Consultation Clause

[59] Mr Forbes contends that consultation should occur when there isa workplace matter affecting employees. Until such time as there is a matter which affects employees or which is capable of affecting employees, the consultation obligations are not triggered¹⁸. He argued that the obligation arises only when there is a workplace matter affecting employees; not at the ‘thought bubble stage’ where someone in an organization has an idea, but when there is a well formed, concrete or tangible matter that has capacity to affect employees.¹⁹

[60] As to the consultation required under clause 2.2, Mr Forbes notes that the context of consultation was unique: there is no template for development of a whole of roster shift change.

Workplace Matter

[61] The workplace matter on which the DIBP consulted was the introduction to cover the whole of Regional Command.

[62] Further it is the DIBP’s submission that the CPSU has artificially confined the relevant workplace matter which the DIBP was required to consult under clause 2.2 to the introduction of a 60% attendance rate.

[63] As to the decision concerning the 60% attendance ratio, in cross examination Mr Price noted as follows:

“In early to mid-June a decision is made about 60% attendance ratio by you, and then in the middle of - -- ? --- As a basis to go forward for further consultation. There had to be a decision made to get as to the next stage, and that’s the decision I made so that working party can continue to design a proposal or proposal or options put to staff. That’s putting it in the context about the decision”²⁰

[64] The DIBP also points to the various factors considered by Mr Price in deciding on the 60% ratio. For example, when asked about overtime during cross-examination he explained how the current rate of 4000 hours of overtime was a consideration in deciding on an attendance rate of 60%.

“… The genuine issue for me on overtime is, yes, certainly it's a cost, but that's in part monetary. The other part is you're using the same officers who should be enjoying a day off to come and do overtime, so working 4000 hours in that period means you've got an exhausted workforce that are not necessarily enjoying their days off, plus it's also using workers from other work areas to supplement the resources at the airport. So I'm driven by two things. One is the cost of overtime being significant because of an inefficient roster, and two, officers actually attending the airport more often, notwithstanding that their rosters 53.7 attendance; they're actually attending the airport more regularly than that for overtime”²¹.

[65] It is the DIBP’s submission that its ‘firm position’ on the attendance rate did not prevent it from considering other options, or from genuinely seeking to reach agreement on the whole of roster design. Further, a requirement to reach agreement on the whole of Command roster pattern should not prevent the DIBP from adopting a firm stance on a particular element of that design where it is objectively justifiable on sound operational and financial considerations.²²

Questions for Arbitration

Meaning of Clause 2.2

[66] The parties submit, and I agree, that words of Clause 2.2 have a plain meaning unaffected by ambiguity, despite the divergent interpretation. The clause requires consultation about ‘workplace matters affecting employees’. CPSU contends the decision concerning the 60% attendance rate was the key central driver of the roster and therefore should be the subject of consultation.

Should the 60% attendance rate decision be the subject of consultation?

[67] The CPSU contends the consultation did not provide appropriate opportunities to have input into the roster.

[68] Further, while it is correct that there was a long period when the DIBP considered the WOC roster, the actual consultation process about the proposed roster began in August 2016, and was extended at the request of CPSU.

[69] It is the CPSU’s contention that the DIBP did not act in a genuine or open fashion in attempting to reach a mutually agreeable position on the 60% attendance rate for the WOC roster.

[70] In addition, the consultation was about three rosters each with a 60% attendance rate. That is, the CPSU suggests there was no consultation, negotiation or genuinely seeking to reach agreement on the attendance rate being fixed at, or other than 60%.

[71] It is the DIBP’s evidence that Mr Price, did in fact make a decision in relation to the 60% attendance rate and the form of the WOC roster. Further, the genuineness of the DIBP’s intention in seeking to reach an agreement on the WOC roster pattern is not undermined by the fact the DIBP took a firm line on one particular aspect of the design.

[72] The DIBP relies on Forstaff, quoted above, noting that while consultation is a fetter on a unilateral right of a party with authority to make decisions, the ultimate decision-making rests with that party.

[73] I conclude the DIBP was entitled to put a firm proposal to its employees. That proposal was framed with consideration to overtime, fatigue management and other matters. It resulted in a potential WOC roster including a 60% attendance rate. It then engaged with its employees and their representatives … We are thinking of doing this. What do you have to say about it?

[74] This is consistent with the decision in QR: a proposal was formulated, here encompassing the 60% attendance rate and a desire to reduce overtime and to manage fatigue issues. It was when the DIBP had a proposal that addressed those considerations it had an adequately formed basis for consultation.

[75] The DIBP was obliged to then consult on proposed rostering arrangements.

[76] The type of consultation required on the workplace matter is: seeking input; considering these matters; and providing feedback. These are required to be done, in circumstances where the DIBP has control before a decision is made.

Control

[77] The roster design is a matter for the DIBP and over which it has ‘control’. Therefore Clause 2.2 required consultation before a decision was made.

Consultation

[78] I turn then to consultation and whether the DIBP sought input, considered the matters, provided feedback and genuinely sought to reach agreement with employees and their representatives, before the decision is made.

• In August 2016 the DIBP sought input firstly from the CPSU prior to



• consulting more widely with staff; the DIBP then met with CPSU representatives outlining the staff consultation plan. CPSU representatives provided initial feedback. Ms Hines provided CPSU delegates with a schedule of consultation meetings and a copy of the PowerPoint to be presented at those meetings. Ms Little provided comments and suggested amendments to the PowerPoint presentation; consultation meetings were held; employees invited to provide feedback on proposed roster changes via email.



• Mr Price met with Ms Mutton and a group of CPSU delegates to listen and



• respond to their concerns in relation to the roster, including an explanation as to why the 60 % attendance rate had been endorsed by Mr Price.



• Ms Hines’ evidence was that she worked with the RWP to consider all the



• feedback provided by staff.



• Implementation of the new roster was delayed to provide further time for



• feedback and prepare for implementation.



• The DIBP responded to this feedback, noting Roster Option B was



• preferred and a proposed commencement date suggested.

[79] Mr Barlow suggests that Option B was the ‘least worst option’ for employees. In his submission, not all employees welcomed the proposed new roster.

Was consultation compliant?

[80] In my view, the evidence establishes that the DIBP complied with clause 2.2.

[81] It sought extensive input, listened to feedback, explained the reasons for the proposal and sought to reach agreement. Notwithstanding this consultation, the parties did not reach agreement and the ultimate decision rested with the DIBP. These steps demonstrate compliance with clause 2.2 and I have concluded that DIBP has complied with clause 2.2.

[82] I accept that some employees would prefer a different roster. By way of comment, in my view, consultation could have been done better: under cross-examination Ms Hines thoughtfully concluded that providing the roster reports to the CPSU and employees may have been sensible. 23 Indeed it may well have been sensible to provide more information. However, the task for the Commission is whether DIBP consulted as required under the Agreement and policy and for reasons I have given I have concluded the DIBP has done so.

[83] Additionally, Mr Barlow submitted the issues might have been better handled and this dispute avoided. Mr Forbes noted the preservation of the status quo as a factor.

[84] For the record, I have not taken these matters into consideration. The parties are entitled under their Agreement to have a matter arbitrated to resolve the dispute. The dispute is genuine, and brought in accordance with the Act and the Agreement.

Shift rosters clause 8.4

CPSU submission

[85] It is the CPSU’s submission that clause 8.4 requires the DIBP to negotiate and reach agreement with affected employees. That is, the obligation is not simply to reach agreement as outlined in the consultation obligations but actually to negotiate and agree to a roster.

[86] Mr Tamplin’s evidence is that, previously, agreement was reached in relation to roster changes at the local level. 24

[87] Alternatively, the CPSU argues that if the Commission did not accept that clause 8.4 creates an obligation to reach agreement on the clause, it still requires a ‘to-and-fro’ of exchange of positions as part of the negotiation process aimed towards reaching a common ground where an agreement is sought by both parties. This is required even if not finally achieved.

[88] The CPSU argues that even on this reading of the clause the DIBP have not discharged its obligation. In final submissions, Mr Barlow confirmed this is a clause about rosters being determined by agreement for each work area. He argues that until it is determined by negotiation, rosters cannot change.²⁵

DIBP submission

[89] The DIBP contends this clause does not apply to this dispute as it is about individual employee rosters and not the rostering system.

[90] The DIBP submits that clause 8.4 is about an employee’s individual roster arrangements not the roster patterns on which that roster is based. Further, an individual’s roster arrangement is subject to negotiation but not conditional on agreement between the employee and the DIBP.²⁶

[91] In support of this submission, it contends that, given that the roster design is critical to ensuring the DIBP has adequate resources in meeting its obligations about border protection, constraint on management discretion would need to be expressed in the clearest possible terms.

[92] The DIBP looks specifically to the phrase ‘employee and their manager’ that clause 8.4 deals with an employee’s individual roster, and the balance refers to an individual employee’s particular shift rather than roster patterns: there is no requirement on employee agreement on the introduction of those roster patterns.

[93] Mr Forbes submits that past practice should not inform the ordinary interpretation of this clause. He notes that subsequent conduct after the making of an agreement cannot be called in aid to determine what an agreement means.

[94] The DIBP submits clause 8.4 does not apply to the introduction of the WOC roster at all. It is engaged instead in the process of negotiation with employees on the implementation of a roster pattern as it affects individual employees in the workplace.

Meaning of Clause 8.4

[95] While clause 2.2 applies to all workplace matters that require consultation, clause 8.4 refers specifically to shift work arrangements. Clause 8.4, is a subclause of Part 8 – Shift work Arrangements. Part 8 of the Agreement creates further obligations specific to changing rosters for shift workers.

[96] I agree with the CPSU that clause 8.4 creates further obligations specific to changing rosters: on its plain reading, the clause requires negotiation, ‘a to-and-fro’ exchange of positions. But the words refer to ‘the employee’ and ‘their manager’, referencing process to determine individual employee rosters. Further, the clause requires negotiation between employee and manager, not agreement.

[97] It may have been past practice for some employees to vote on rosters, such that it is not required by clause 8.4.

[98] Therefore clause 8.4 is not relevant to the negotiation for the WOC roster but to the individual rosters of employees.

Application of shift work policy

[99] Clause 1.7 provides that the Agreement prevails over Policies and Guidelines to the extent of any inconsistency. The parties agree that any dispute over the application of the Policies and Guidelines can be dealt with under the dispute resolution procedures of the Agreement.

[100] CPSU submits the DIBP failed to follow clause 21.5 of the shift work policy. It provides as follows:-

Clause 21.5

Consultation will be timely, take into account the views express by employees and their representatives and provide employees genuine input into roster design the terms of reference underpinning the review.

[101] The CPSU contends that the requirement for genuine input into roster design and terms of reference, alongside the consultation obligations in clause 2.2 require genuinely seeking agreement on the 60% attendance rate.

DIBP submission

[102] The DIBP submits that it has followed the policy. It refers to the evidence of Ms Hines - particularly that:

• employees had genuine input into the terms of reference;



• the terms of reference were provided to Shiftwork Solutions who conducted



• the review;



• genuine input opportunity was given into roster design by participation in the



• RRWG ;



• meetings with Shiftwork Solutions were taken into consideration in designing roster options; and



• employees were able to provide ideas to a dedicated email address during consultation



• on the proposed roster design in August 2016.

Has the DIBP acted consistently with clause 21.5 of the Shift Work and Rosters Policy?

[103] The Shiftwork and Rosters Policy is a detailed document, dealing with the relevant arrangements necessary for shift workers. Clause 21 is about Introduction, Variation and Cessation of Shift Work Arrangement and the sub-clauses deal with particular aspects of introduction or variation of shift work arrangements. Clause 21.3 deals specifically with significant change including increased attendances over a roster cycle. That clause describes more formal consultation (such as the development of a roster committee), in instances where a large number of staff will be affected and/or there are likely to be significant changes to existing rosters including (but not limited to): significant changes to shift commencement and finishing times, increased attendances over a roster cycle, requirement for increased operational coverage and changes to a shift attracting high penalty rates.

[104] Clause 21.5 provides for genuine input into roster design done in a timely way. Clause 21.4 then details what is timely consultation. It requires all relevant information pertaining to roster requirements to be provided at the earliest practicable point as part of conducting a review.

[105] That is, clause 21.4 describes an approach that is both timely and practicable.

[106] In my view, the steps taken, including consultation on the terms of reference (which occurred early in the process) then input into the design of the rosters, and ultimately consultation on the WOC roster in August, are compliant with clause 21. That is, there has been timely consultation by the DIBP that provided genuine input into the roster design at the earliest practicable point.

Arbitration questions

[107] I turn now to the questions for arbitration.

(i) (A) What is the proper interpretation of clause 2.2 (consultation) of the DIAC EA?

[108] Clause 2.2 words are clear and unambiguous.

[109] It requires consultation with employees and their representatives on workplace matters. It does not demand agreement but it does require that the DIBP genuinely seeks to reach agreement with employees and representatives.

[110] Disagreements, as happened in this dispute, do not indicate non-compliance with clause 2.2.

[111] The roster design, such that was the subject of this dispute, are matters where the DIBP has control. As such, the WOC roster is a matter where the DIBP has control. It requires the DIBP to seek input, provide feedback to employees and representatives and genuinely seek to reach agreement prior to the decision being made.

[112] Answer: On its proper interpretation, the DIBP consulted in accordance with clause 2.2.

(i) (B) What is the proper interpretation of Clause 8.4 (rosters) of the DIAC EA?

[113] This clause describes employee individual roster arrangements.

[114] These arrangements are to be negotiated between the employee and their manager.

[115] Answer: Clause 8.4 is not relevant to the dispute.

(ii) Having regard to the proper construction of clauses 2.2 and 8.4, has the Department met its obligations under the DIAC EA prior to implementing proposed roster change for the whole of the Brisbane area of Regional Command Queensland (referred to as whole of Regional Command)?

[116] Answer: Yes.

(iii) In the context of the Department’s proposal for a whole of Regional Command roster and with reference to clause 1.7 of the DIAC EA, did the Department act consistently with clause 21.5 of the Shiftwork and Rosters Policy 2015?

[117] Answer: Yes.

Resolving the dispute

[118] Although not part of the questions for arbitration both the CPSU and the DIBP raised the issue of Permanent AM roster.

[119] If this matter has not been resolved to the parties’ satisfaction then, as part of resolving the dispute, the parties are invited to a further conference with a view to resolving the issues in dispute about the Permanent AM roster.

COMMISSIONER

Appearances:

Mr K Barlow with Ms D Mutton and Ms T Marsh for the CPSU.

Mr J Forbes of Counsel with Ms E Spate from Ashurst Australia.

Hearing details:

2017.

Brisbane:

15 and 16 May.

1 Witness statement of Ms McLean Hines Annexure C Terms of Reference.

2 DIBP’s submission at paragraph 6.

3 CPSU’s submission at paragraph 6.

4 CPSU’s submission at paragraph 3.

5 Transcript dated 15/5/17 at PN863.

6 Witness statement of Suzanne McLean Hines at paragraph 42.

7 Witness statement of Edward Tamplin at paragraph 11.

8 Email Ms Mutton to Ms Hines 11 February 2016 - Annexure I of Ms Hines witness statement.

9 Witness statement of Terry Price at paragraph 20.

10 Wwitness statement of Terry Price at paragraph 22.

¹¹ [2014] FWCFB 7447 at [41].

12 [2010] FCA 591 at paragraphs 45 and 46.

13 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Vodafone Network Pty Ltd PR911257, 14 November 2001

14 [2013] FWC 4639 at [59].

15 Transcript dated 16/5/17 at PN1442.

16 CPSU’s submission in reply at paragraph 8.

17 Witness statement of Ms Hines, Annexure Q Additional Roster Design Report 1 June 2016.

18 Transcript dated 15/5/17 at PN862.

19 Transcript dated 15/5/17 at PN863.

20 Transcript dated 16/5/17 at PN1306.

21 Transcript dated 16/5/17 at PN1228.

22 DIBP’s submission at paragraphs 67 and 68.

 23   Transcript dated 15 May 2017 at PN1004.

 24   Witness statement of Edward Tamplin 20/3/17 at paragraph 7.

25 Transcript dated 16/5/17 at PN1645.

26 DIBP’s submissions at paragraph 82.

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