Isabella Lonigro v Krispy Kreme Australia Pty Limited

[2024] FWC 3550

[2024] FWC 3550

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Isabella Lonigro
v

Krispy Kreme Australia Pty Limited

(C2024/5585)

COMMISSIONER MIRABELLA MELBOURNE, 20 DECEMBER 2024

Alleged dispute about matters arising under an enterprise agreement

1. This decision arises from an application by Isabella Lonigro (the applicant) for the Fair Work Commission (the Commission) to deal with the dispute under s 739 of the Fair Work Act 2009 ( the Act). The applicant is an employee of Krispy Kreme Pty Ltd (the respondent).

1. The dispute arises from provisions of the Krispy Kreme National Enterprise Agreement 2020 (the Agreement) regarding Rostering Principle 2 of the Agreement (Principle 2). This Principle relates to an employee’s request for a rostering change and the consideration of Management of that request.

1. A conference was held in this matter on 2 September 2024 but failed to resolve the dispute.

1. In consultation the parties agreed to the question for arbitration.

1. The Respondent did not object to the matter being decided on the papers. The applicant requested an explanation of ‘what would the process of determining the outcome be via the papers’. In response, chambers sent an explanatory email to the Applicant on 18 December 2024 and further requested she provide a view on the matter by 1:00pm on 19 December 2024. An attempt was also made to call the Applicant on 18 December 2024. The applicant did not contact chambers by the nominated deadline. A further unsuccessful attempt was made to telephone the Applicant on the afternoon of 19 December 2024 and another email was sent to the Applicant urging her to provide a response by 3:00pm on 20 December 2024. As of 3:00pm 20 December 2024, the Commission has not heard from the Applicant. I have proceeded to determine the matter on the papers.

1. The parties agreed that the question for arbitration is:

‘Does Rostering Principle 2 require Krispy Kreme to take into consideration availability of their employees?’

Background and submissions

1. The applicant works for Krispy Kreme on an apparent part time basis. She has made numerous requests over the course of 2024 for a change to her rostered hours ‘to change my availability to fit in with my professional job.’[1] As a result, the applicant submits that she has been rostered on days and times that she cannot work and has had to take up additional days in her ‘professional’ job in order to make up for the loss of earnings.

1. The applicant submits that in accordance with Principle 2, she followed the ‘appropriate measures to change my availability’[2]. She further submits that ‘In line with what is written in Krispy Kremes National enterprise, yes I believe Krispy Kreme is required to take into consideration the changing availability of their employees.’[3]

1. The respondent submits that the question for arbitration can be answered by considering the plain meaning of the words in Principle 2. It submits that when an employee who needs to change their rostering availability makes a request within 14 days prior to the roster period, management is required to consider that request within the confines of operational requirements. The respondent further submits that the words ‘this request will be considered by Store Management or Stand Alone Facility Management’, do not require that the respondent agree with changing the relevant employee’s roster.

Relevant provisions of the Agreement

1. Principle 2 of the Agreement provides:

‘2. If you need to change your availability within a roster period you must make a request to Store Management or Stand Alone Facility Management not to be a rostered for that time or date by updating your availability in the time and attendance system, at least 14 days before the commencement of the roster period. This request will be considered by Store Management or Stand Alone Facility Management and approved subject to the operational requirements of Krispy Kreme.’

Consideration

1. The principles to be applied to the interpretation of an enterprise agreement are well articulated and settled.[4] The first step is to determine whether the disputed terms of an agreement have a plain meaning or are instead ambiguous or susceptible to more than one meaning. The language of the disputed terms is to be construed objectively, having regard to both context and purpose, a narrow or pedantic approach to interpretation is to be avoided.

1. I have applied these well-established principles without repeating them.

1. The question of for arbitration is:

   ‘Does Rostering Principle 2 require Krispy Kreme to take into consideration the changing availability of employees?’

2. I have had regard to all of the submissions made by the parties in this matter.

1. Assuming that a request by an employee to change their roster is made within the time constraints detailed in Principle 2, what meaning is to be given to the words ‘This request will be considered’?

1. A plain reading of the words makes it clear the request ‘will’ be considered by management means that management needs to consider the request. A consideration of an employee request for a roster change should not be conflated to equate to an approval of that change. That something will be considered is akin to saying that something will be taken into consideration, that is a factor in making a decision.[5]

1. The consideration of the request is not carried out in isolation. In Principle 2, the relevant sentence in its entirety reads as follows:

‘This request will be considered by Store Management or Stand Alone Facility Management and approved subject to the operational requirements of Krispy Kreme.’

1. It is clear from the plain meaning of the above words that the consideration of the roster change request is made in the context of operational requirements. The words ‘subject to’ must mean something, and in this context mean that operational requirements are of primary importance when deciding whether to approve a roster change.

Conclusion

1. On the basis of the foregoing question for determination posed by the parties is answered in the following manner:

Does Rostering Principle 2 require Krispy Kreme to take into consideration availability of their employees?

Answer: Yes

1. The dispute is determined accordingly.

COMMISSIONER

[1] Form F10 - C2024/5585 - Miss Isabella Lonigro v Krispy Kreme Australia Pty Limited, Q1.4 

[2] Form F10 - C2024/5585 - Miss Isabella Lonigro v Krispy Kreme Australia Pty Limited, Q2.1

[3] Applicant’s submissions, paragraph 4

[4] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[2017] FWCFB 3005; The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited[2014] FWCFB 7447.

[5] Oxford English Reference Dictionary (reprint 2003)

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