Gruma Oceania Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU)
[2019] FWC 2655
•29 APRIL 2019
| [2019] FWC 2655 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Gruma Oceania Pty Ltd
v
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
(C2019/1259)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 29 APRIL 2019 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – introduction of overtime roster – whether reasonable additional hours.
[1] Gruma Oceania Pty Ltd (Gruma) and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) are in dispute over a proposal by Gruma to introduce a roster which will involve occasional early start overtime for day shift workers (relevant employees). The relevant employees are employed by Gruma in its warehouse located at its food manufacturing facility in Epping, Victoria. Gruma produces various articles of Mexican style food items at the facility which are sold under its “Mission” brand.
[2] The Gruma Oceania Enterprise Agreement 2017 (Agreement) applies to the 16 relevant employees in their employment with Gruma. The warehouse operates three shifts: a day, afternoon and night shift on each of Monday to Friday. The day shift commences at 6.00am and the first shift of each week is usually on a Monday.1 This shift pattern is consistent with the manufacturing operations at the facility. Save for the completion of the Friday night shift on Saturday morning, no production activity occurs on the weekend and the plant is shut down at the conclusion of the Friday night shift.
[3] Except on the designated Rostered Days Off and public holidays, production at the facility will commence on a Monday.2 When the facility is due to recommence production after each weekend shut down, all sections of the facility require some employees to commence work before the first full shift arrives so that the plant is ready to run at the designated 6:00am start time.3
[4] Gruma requires that one experienced relevant employee, who may sometimes be assisted by a labour hire employee, commence work at 2:00am on Monday morning on an overtime basis in the warehouse to facilitate the pre-start up operation.4 Prior to the current proposal, the requirement for an earlier start after a weekend shut down fell disproportionately on one, or a small number of relevant employees. The proposal is outlined in a production pre-start up roster.5 In practice this will require each relevant employee once every 13 weeks to work four hours of overtime before the commencement of the first day shift in the week.6 Gruma proposes that in conjunction with the introduction of the production pre-start up roster, a relevant employee who is rostered in a week to undertake pre-start up overtime will not otherwise be required to work overtime in that week. It will also allow relevant employees to swap rostered pre-start up overtime.
[5] The introduction of the proposed pre-start up roster is resisted by some of the relevant employees and the AMWU principally on the ground that the proposed rostered overtime constituting the pre-start up roster poses a risk to safety, is unreasonable and may thus be refused.
[6] Pursuant to an application by Gruma under s.739 of the Fair Work Act 2009 (Act) and clause 34 of the Agreement, the dispute was not resolved at the workplace level nor through conciliation in the Commission, so in order that the dispute may be resolved it is necessary to arbitrate. There is no dispute that the jurisdiction of the Commission has been properly invoked or that I have the power to arbitrate the dispute. The parties have agreed7 to the questions to be determined in the arbitration which, adjusted for the nomenclature adopted in this decision, are as follows:
a. Is the pre-start up roster proposed by Gruma reasonable overtime within the scope clause 13.4 Agreement?
b. If yes, on what basis can a relevant employee refuse to work a period of rostered overtime?
[7] Clause 13 of the Agreement deals with overtime and provides:
13 OVERTIME RATES
13.1 Other than time that accrues towards an RDO, any time worked: (i) in excess of 38 hours per week; (ii) in excess of 8 continuous hours per day (exclusive of meal and rest breaks); or (iii) on a Saturday is considered overtime and will be paid at a rate of (a) 1.5 times the Employee's base rate of pay as set in clause 10.1 for the first 3.0 hours, and (b) 2 times the Employee's base rate of pay in clause 10.1 for any overtime in excess of 3.0 hours. Time worked on a Sunday is considered overtime and will be paid at a rate of 2 times the Employee's base rate of pay in clause 10.1. In computing overtime, each shift stands alone.
13.2 Any work performed at the direction of the Employer on a public holiday will be paid at a rate of 21/2 times the base rate of pay for the applicable classification. Work performed at the direction of the Employer on Christmas day and Good Friday will be paid at 3 times the base rate of pay for the applicable classification.
13.3 Subject to the agreement and approval of the Employer, an Employee may take time-off in lieu of being paid for overtime hours worked or time worked on a public holiday. Time-off- in-lieu will be taken at a mutually convenient time as agreed between the Employer and the Employee. Time-off-in-lieu will be calculated at the overtime rate or penalty rate applicable to the Employee when the time is actually worked minus the ordinary hours rate that has been paid to the Employee. Any time owed that is not taken by the Employee within 3 months of the public holiday or overtime worked will be paid to the Employee at the outstanding overtime rate or penalty rate applicable to the time actually worked.
13.4 Employees are required to work reasonable overtime as reasonably requested by the Employer.
[8] The terms of an enterprise agreement must not exclude the National Employment Standards (NES) or any provision thereof.8 If a term of an enterprise agreement does so then it has no effect to that extent.9 An enterprise agreement may include terms that have the same or substantially the same effect as provisions of the NES.10 An enterprise agreement may include terms that are ancillary or incidental to the operation of an entitlement of an employee under the NES and terms that supplement the NES, but only to the extent that the effect of those terms is not detrimental to an employee in respect, when compared to the NES.11
[9] Clause 11 of the Agreement deals with ordinary hours of work and relevantly provides:
11.2 Subject to 11.7 and 11.8, the ordinary hours of work for a Full-Time Employee will be an average of 38 hours per week. The 2 hours normally worked in excess of 38 hours each week will accrue to a Rostered Day Off ("RDO").
[10] Clause 11.2 when read in conjunction with clause 13.4 of the Agreement endeavours to reproduce the effect of the maximum weekly hours provisions of the NES set out in s.62 of the Act which provides:
“62 Maximum weekly hours
Maximum weekly hours of work
(1) An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:
(a) for a full-time employee—38 hours; or
(b) for an employee who is not a full-time employee—the lesser of:
(i) 38 hours; and
(ii) the employee’s ordinary hours of work in a week.
Employee may refuse to work unreasonable additional hours
(2) The employee may refuse to work additional hours (beyond those referred to in paragraph (1)(a) or (b)) if they are unreasonable.
Determining whether additional hours are reasonable
(3) In determining whether additional hours are reasonable or unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:
(a) any risk to employee health and safety from working the additional hours;
(b) the employee’s personal circumstances, including family responsibilities;
(c) the needs of the workplace or enterprise in which the employee is employed;
(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;
(e) any notice given by the employer of any request or requirement to work the additional hours;
(f) any notice given by the employee of his or her intention to refuse to work the additional hours;
(g) the usual patterns of work in the industry, or the part of an industry, in which the employee works;
(h) the nature of the employee’s role, and the employee’s level of responsibility;
(i) whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;
(j) any other relevant matter.
Authorised leave or absence treated as hours worked
(4) For the purposes of subsection (1), the hours an employee works in a week are taken to include any hours of leave, or absence, whether paid or unpaid, that the employee takes in the week and that are authorised:
(a) by the employee’s employer; or
(b) by or under a term or condition of the employee’s employment; or
(c) by or under a law of the Commonwealth, a State or a Territory, or an instrument in force under such a law.”
[11] Consistently with the rules concerning the interaction between the NES and enterprise agreements to which brief reference has been earlier made, the reference in clause 13.4 of the Agreement to employees being “required to work reasonable overtime” is to be construed as permitting Gruma to request or require a relevant employee to work additional hours beyond, relevantly 38 hours per week if the additional hours are reasonable, and as conferring upon a relevant employee a capacity to refuse to work additional hours beyond 38 hours per week if the additional hours are unreasonable.
[12] As the Agreement does not define “reasonable overtime” whether or not this particular requirement to work overtime as set out in the pre-start up roster is reasonable is to be determined according to the circumstances faced by a relevant employee at a time approximate to the time the required additional hours are to be worked taking into account the matters that are set out in s.62(3) of the Act.
[13] Whilst general observations might be made about the reasonableness of an additional hours provision of an enterprise agreement, an assessment as to whether the requirement for a particular employee to work additional hours at a particular time is reasonable or unreasonable cannot properly be made before the time for working those hours is imminent or at least at a time when the circumstances that will exist at the time those hours are required to be worked are known.
[14] It is plain upon a cursory review of the matters in s.62(3) of the Act which must be taken into account in assessing whether additional hours are reasonable or unreasonable that most are concerned with the individual personal circumstances or attributes of an employee. The matters are not to be assessed by reference to a class of employees where the circumstances of each member of the class is likely to be different. For example each employee’s personal circumstances including family responsibilities together with the employee’s role and level of responsibility are more likely than not to be different. Not every employee who is a member of a class will have family responsibilities and some employees will be more senior than others and will be undertaking different duties.
[15] That said the rostered pre-start up overtime proposal is not on its face inherently onerous or unreasonable. It will require an employee to work the rostered pre-start up overtime only once every 13 weeks or four times a year. As the overtime is rostered, the requirement to work the additional hours is known well in advance. The mitigation steps taken by Gruma in not requiring an employee who is required to work rostered pre-start up overtime to work other overtime in that week is aimed at addressing occupational health and safety concerns associated with working the additional hours. The ability to swap rostered pre-start up overtime as between the relevant employees is aimed at giving employees flexibility and capacity to change an employee’s rostered pre-start up overtime if the circumstances of that employee unexpectedly change. The Agreement provides for overtime payments which will attach to the additional hours when worked.
[16] The AMWU’s evidence as to the risks to occupational health and safety of the relevant employees from working these additional hours is at best scant. It is replete with hearsay and contradicted by the actual pattern of work performed by relevant employees who are said to be concerned about the occupational health and safety risk associated with the additional hours proposed. Without reciting that evidence here it simply does not have a sufficiently probative value that would warrant it being given any weight. Moreover as the relevant employees, about whose circumstances hearsay evidence was led did not attend to give evidence, the matters about which hearsay evidence was given could not be tested. No expert evidence about the risk to safety of the relevant employees associated with the overtime proposed was led.
[17] In the circumstances I answer the questions posed as follows:
Noting that the question whether a requirement to work additional hours is reasonable is to be answered having regard to the circumstances of a relevant employee to whom the request is directed at a time approximate to the time when the required hours are to be worked or when the circumstances which will pertain are known:
a. on its face rostered pre-start up overtime is not unreasonable taking into account the matters earlier identified and is within the scope of clause 13.4 of the Agreement; and
b. a relevant employee may refuse to work a period of rostered pre-start up overtime if the additional hours are unreasonable taking into account the matters set out in s.62(3) of the Act.
[18] The dispute is determined accordingly and no orders are necessary.
DEPUTY PRESIDENT
Appearances:
Mr D. McLaughlin for the Applicant
Mr J. Gardner for the Respondent
Hearing details:
2019.
Melbourne:
April 9.
Printed by authority of the Commonwealth Government Printer
<PR707158>
1 Exhibit 1 at [2]
2 Ibid at [4]
3 Ibid at [3]
4 Ibid at [5]
5 Ibid at attachment 1
6 Ibid at [12]
7 See Applicant’s Outline of Argument at [2] and AMWU Outline of Submissions at [1]
8 Fair Work Act 2009, s.55(1)
9 Ibid, s.56
10 Ibid, s.55(5)
11 Ibid, s.55(4)
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