Lamb v Bunnings Group Limited

[2013] FWCFB 2698

[2013] FWCFB 2698

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Mr Jeffrey Lamb
v
Bunnings Group Limited
(C2013/2985)

VICE PRESIDENT WATSON
DEPUTY PRESIDENT BOOTH
COMMISSIONER CARGILL MELBOURNE, 14 MAY 2013

Appeal against decision [2013] FWC 201 of Commissioner Roberts at Sydney on 16 January 2013 in matter number C2012/5230 - obligations under enterprise agreement to have regard to family responsibilities in rostering employees - construction of agreements - meaning of ‘have regard to’ - meaning of operational requirements.

Introduction

[1] This decision concerns an appeal pursuant to s.604 of the Fair Work Act 2009 (the Act) by Mr Jeffrey Lamb against a decision of Commissioner Roberts. The Commissioner’s decision concerned a dispute regarding changes to rostering arrangements implemented by Bunnings Group Limited (Bunnings) and difficulties arising for Mr Lamb due to family responsibilities. The Commissioner determined that Bunnings had properly applied the provisions of the Bunnings Warehouse Agreement 2010 1 (the Agreement) when developing the roster.

[2] At the hearing on 1 May 2013, Mr A. Rogers, of counsel, with Mr R. Tonkli, Shop, Distributive and Allied Employees Association appeared on behalf of Mr Lamb and Mr J. Darams, of counsel, with Mr A. Goonrey, solicitor, appeared on behalf of Bunnings. Mr M. Morey appeared on behalf of Unions NSW and the Australian Council of Trade Unions (ACTU) which sought and were granted leave to intervene in the proceedings.

Background and decision under appeal

[3] Mr Lamb is employed by Bunnings on a full time basis at the Lismore store. He has been employed by Bunnings for approximately eight years. Mr Lamb’s roster required him to work Monday to Thursday and Sunday. He had worked on this roster for a period of approximately three years.

[4] Mr Lamb was one of four employees working in the Special Orders, Kitchens and Flooring (SKF) area. The SKF area is a specialist area requiring skills and knowledge not held by employees working in other areas of the warehouse. Its busiest sales days are Thursday, Friday and Saturday.

[5] Following a review of its staffing needs for Friday and Saturday, Bunnings attempted to obtain agreement of team members working in the SKF area to change their rosters so that there would be an additional person working in the area on Fridays and Saturdays. None of the employees involved agreed to this, citing family responsibilities as the reason.

[6] When agreement on rosters could not be reached Bunnings developed a new roster which would require the employees to be rostered to work Friday and Saturday for a consecutive four week period in every 12 weeks. Mr Lamb was due to start working the roster on 11 September 2012. The dispute was notified to Fair Work Australia, as it was then known, on 10 September 2012.

[7] The dispute centred on clause 10.4 of the Agreement. Mr Lamb stated that he had difficulties working on Fridays and Saturdays due to the fact that his wife worked on Fridays and Saturdays and he had a responsibility to care for his children, aged three and seven years, on those days. Clause 10.4 of the Agreement is in the following terms:

“10.4

10.4.1 Rosters for ordinary hours of work shall be set for a two week period at least fourteen days in advance but may be varied with seven days’ notice or at any time by mutual agreement between Bunnings and the warehouse team member affected.

10.4.2 As far as possible, rosters will be set by mutual agreement between Bunnings and the warehouse team members.

10.4.3 In setting rosters Bunnings will have regard for the family responsibilities and other significant commitments of warehouse team members and access to safe transport home by warehouse team members as well as the operational requirements of the business and the need to be fair in its treatment of warehouse team members as a whole.

10.4.4 It is acknowledged that rosters are subject to change on an ongoing basis - however rosters, as far as is practicable should not be subject to frequent variation without good cause. Nothing in this clause precludes the business from being able to roster to meet operational requirements. Nothing in this clause is to be construed as meaning that rosters will be of a set and standard nature.”

[8] Mr Lamb sought a determination from the Commission that Bunnings refrain from changing his roster to compel him to work on a Friday or on more than one in three Saturdays.

[9] The Commissioner expresses his conclusions as follows:

“[83] Firstly, I turn to a consideration of the terms of the Agreement, specifically clause 10 and subclause 36.6. Mr Lamb particularly relies on the provisions of subclauses 10.4.2, 10.4.3 and 36.6 of the Agreement.

[84] Clause 10, as it relates to rosters and changes to rosters, is governed by certain principles, which can be summarised as follows:

• A team member may expect to be regularly rostered to work ordinary hours on Monday to Sunday.
• “Rosters ... shall be set for a two week period at least fourteen days in advance but may be varied with seven days’ notice or at any time by mutual agreement ...”
• Rosters will be set by mutual agreement “as far as possible”.
• The setting of rosters by the Company “will have regard for the family responsibilities and other significant commitments of warehouse team members ... as well as the operational requirements of the business and the need to be fair in its treatment of warehouse team members as a whole.”
• The parties to the Agreement acknowledge that rosters are subject to change on an ongoing basis but should not be subject to frequent variation without good cause.
• “Nothing in this clause is to be construed as meaning that rosters will be of a set and standard nature.”

[85] The overall provisions of clause 10 of the Agreement are not merely hortatory but impose obligations on both Mr Lamb and Bunnings.

[86] In all of the options provided by Mr Lamb, he seeks the imposition of a roster on the Company which would preclude Bunnings from ever requiring him to work on any Friday or a maximum of one in three Saturdays unless he decided at some future date that his family responsibilities would allow him to do so. The question before me is whether the provisions of the Agreement allow Mr Lamb to take this stand and whether Bunnings has applied the Agreement properly in setting a rotating roster that would compel Mr Lamb to work some Fridays and Saturdays, if he wishes to remain a full time employee.

[87] The evidence in this case is important in gaining an understanding of whether Bunnings met its obligations pursuant to subclause 10.4 of the Agreement. In this regard, I have no hesitation in accepting the evidence of Mr Randell, Mr Hoare, Mr Eastment and Mr Stewart as being both factual and candid.

[88] In fact, the cross-examination of Mr Randell and Mr Hoare was quite limited and in the case of Mr Eastment his evidence was not challenged at all. Mr Stewart’s evidence, as one of the three persons affected by the rotating roster, was also effectively unchallenged.

[89] I note here that, in particular, I accept and am persuaded by, the evidence of the Company’s witnesses to the following effect:

• The Company has a genuine business requirement to increase staff numbers in the SKF area on Fridays and Saturdays based on customer traffic flow and sales.
• Mr Lamb is a highly skilled, effective and valued member of the SKF team.
   Mr Lamb was consulted well in advance of the rotating roster coming into effect.
• The Company took Mr Lamb’s personal circumstances into account when formulating a new roster and he and the other team members were treated equitably.
• Mr Smith does not possess the knowledge and skills to replace Mr Lamb.
• Despite initial resistance, the other two SKF team members have agreed to work the new rotating roster. The treatment of Mr Lamb has not been inequitable in that regard.
• The Company was open to suggestions from Mr Lamb as to alternative working arrangements either at the Lismore store or another Bunnings warehouse.
• The alternatives raised by Mr Lamb were either unavailable, unworkable or not in Bunnings’ commercial interest.
• Bunnings gave due consideration and equal weight to all factors before making a decision on the new roster.

[90] Where the evidence of the applicant conflicts with that of Mr Randell, Mr Hoare and Mr Eastment, I prefer the evidence of the three company witnesses. This is particularly so in relation to the process of consultation before the Company adopted the rotating roster. I accept that Mr Lamb was truthful when setting out his family circumstances but his evidence does not persuade me that his situation creates a special circumstance which must be accommodated by Bunnings. Mr Lamb is totally unwilling to work on Fridays and/or Saturdays and has always been unwilling to countenance any roster that involved such work.

[91] The evidence of Mrs Lamb I believe to have been truthful but her desire to work on Fridays and Saturdays at Woolworths cannot give rise to an obligation on Bunnings to arrange Mr Lamb’s hours to suit Mrs Lamb. On balance, I consider that it is Mrs Lamb’s desire to work on Fridays and Saturdays that lies at the core of this dispute. Her action in changing her employment status from casual to permanent part-time at Woolworths, including an obligation to work on Fridays and Saturdays, occurred while this dispute and Commission proceedings were ongoing. Mrs Lamb’s work schedule has formed both an irresistible force and immovable object in Mr Lamb’s dealings with Bunnings over a new roster. I make these observations for the sake of completeness but Mrs Lamb’s work at Woolworths has in itself had no determinative role in my decision making.

[92] The reliance by Mr Rogers on Bunnings not objecting to Mrs Lamb working for Woolworths on the basis of there being no conflict of interest is misplaced in the context of this dispute. All that Bunnings’ concession on this question means is that it has no objection to Mr Lamb’s wife working for a rival retailer. It has no impact on the rostering question, it certainly does not constitute some form of tacit agreement that Mr Lamb will not be rostered for Fridays and Saturdays because of Mrs Lamb’s work.

[93] The evidence of Mr Smith I believe to have been truthful as to matters within his knowledge and belief. However he only became involved in the rostering dispute on or after 16 July 2012, which means that he has little or no knowledge of earlier consultation with affected staff members. I acknowledge Mr Smith’s offer to take over Mr Lamb’s proposed Friday and Saturday shifts. However, as noted above, I accept the legitimacy of the Company’s view that he is not suitable to do so. That is a commercial decision lying totally within the purview of the Company. I also wish to note Mr Smith’s evidence that he is a SDA delegate in the context of his representation of Mr Lamb. In that context, the evidence of Mr Stewart that he has never been approached by the SDA to discuss the rotating roster is of note.

[94] The evidence of Mr B Lamb, the applicant’s father, has not been useful to me in my determination of this matter but I accept it as having been truthful.

[95] All in all, based on the evidence, materials and submissions before me, I have concluded and determine that Bunnings has properly applied the provisions of the Agreement as they relate to rostering when developing and implementing the rotating roster. Having made that Determination, there is no need for me to deal with the jurisdictional issue raised by Bunnings except to note that the orders sought by Mr Lamb would in all likelihood have been beyond the power of the Commission to issue in any event.”

Grounds of appeal

[10] Mr Lamb submits that the Commissioner erred in the following respects:

• in determining that Bunnings properly applied the relevant provisions of the Agreement;
• in concluding that it was Mrs Lamb’s desire to work on Fridays and Saturdays which is at the core of the dispute;
• in not having proper regard to the evidence of Mr Christopher Randell, a witness for Bunnings.

[11] Mr Lamb accepts that the dispute relates fundamentally to the construction of the Agreement and did not involve the exercise of any discretion on the part of the Commissioner.

The construction of the Agreement

[12] Central to this dispute is a consideration of the rights and obligations arising from clause 10 of the Agreement and a determination of whether Bunnings complied with its obligations. Before considering the facts of this matter, we propose to consider the nature of those obligations.

[13] Counsel for Mr Lamb submits that the obligation to have regard to the family and other significant commitments of the employee is primary and when an employee’s circumstances render it practically impossible for the employee to comply with a proposed roster, the employer must ascertain whether there is an alternative roster that might be implemented consistent with the needs of the employee. He submits that insofar as operational requirements are considered, they must be operational needs - not merely preferences. Unions NSW and the ACTU submit that Bunnings’ operational requirements and Mr Lamb’s family responsibilities support a conclusion that he not be rostered on Fridays or Saturdays until his family responsibilities change.

[14] Counsel for Bunnings submits that clause 10.4.3 does not make its operational requirements subordinate to other matters, or make the other matters ‘primary’. He submits that it merely provides that the other matters have to be taken into account.

[15] There are well established principles concerning the approach to interpreting enterprise agreements. The leading High Court case is the case of Amcor Ltd v Construction, Forestry, Mining and Energy Union; Minister for Employment and Workplace Relations v Construction, Forestry, Mining and Energy Union 2 (Amcor). In that case Gummow, Hayne and Heydon JJ stated:

“30. Clause 55.1.1 must be read in context. It is necessary, therefore, to have regard not only to the text of cl 55.1.1, but also to a number of other matters: first, the other provisions made by cl 55; secondly, the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it; and, thirdly, the legislative background against which the Agreement was made and in which it was to operate.”

[16] Kirby J said:

“94. However, certified agreements such as this commonly lack the precise drafting of legislation. As appears from a scrutiny of the provisions of the Agreement, it bears the common hallmarks of colloquial language and a measure of imprecision. Doubtless this is a result of the background of the drafters, the circumstances and possibly the urging of the preparation, the process of negotiation and the omission to hammer out every detail - including possibly because such an endeavour would endanger the accord necessary to consensus and certification by the Commission.

96. The nature of the document, the manner of its expression, the context in which it operated and the industrial purpose it served combine to suggest that the construction to be given to cl 55.1.1 should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement. Approaching the interpretation of the clause in that way accords with the proper way, adopted by this Court, of interpreting industrial instruments and especially certified agreements. I agree with the following passage in the reasons of Madgwick J in Kucks v CSR Ltd, where his Honour observed:

‘It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.’” (references omitted)

[17] Callinan J stated that there was substance in the abovementioned observations of Madgwick J in Kucks v CSR Limited 3 (Kucks). He then said:

“131. An industrial agreement has a number of purposes, to settle disputes, to anticipate and make provision for the resolution of future disputes, to ensure fair and just treatment of both employer and employees, and generally to promote harmony in the workplace. It is with the third of these that cl 55 of the Agreement is particularly concerned. It is important to keep in mind therefore the desirability of a construction, if it is reasonably available, that will operate fairly towards both parties. …”

[18] In Kucks, following the passage quoted above, Madgwick J went on to say:

“But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.”

[19] A leading case in relation to the interpretation of agreements is Codelfa Construction Pty Ltd v State Rail Authority of NSW. 4 The dicta of Justice Mason, as he then was, (with whom Stephen, Aickin and Wilson JJ agreed) has frequently been adopted and applied in matters concerning the interpretation of enterprise agreements. In Codelfa His Honour said (at 352):

“The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.

It is here that a difficulty arises with respect to the evidence of prior negotiations. Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable. The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They are superseded by, and merged in, the contract itself. The object of the parol evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction, though admissible in an action for rectification.

Consequently when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of the contract, except in so far as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties' presumed intention in this setting. We do not take into account the actual intentions of the parties and for the very good reason that an investigation of those matters would not only be time consuming but it would also be unrewarding as it would tend to give too much weight to these factors at the expense of the actual language of the written contract.”

[20] It should be emphasised that in interpreting the terms of an enterprise agreement neither a court, nor this Commission, determines what is fair and just. The task involves adopting a meaning consistent with the ordinary or usual meaning of the words the parties have adopted in their agreement.

[21] In our view clause 10.4.3 imposes an obligation on Bunnings, when it sets rosters, to have regard to the five factors specified in the clause. The language of the clause does not support any of the factors having greater or lesser priority. The obligation to have regard to a factor is a common drafting technique in legislation, awards and agreements. In R v Hunt; ex parte Sean Investments Pty Ltd 5 Gibbs J said:

“18. When sub-s.(7) directs the Permanent Head to "have regard to" the costs, it requires him to take those costs into account and to give weight to them as a fundamental element in making his determination.”

[22] In our view this approach does no more than apply the ordinary meaning of the words used. We see no reason why any different approach should be adopted to the interpretation of the words in clause 10.4.3. In our view Bunnings was required to have regard to each of the factors that relevantly applied as fundamental elements in setting its roster. No factor had primacy. Operational requirements involve more than mere preferences devoid of a perceived advantage. In our view an operational requirement is something that is considered to be of benefit to the business.

[23] We do not consider that the Commissioner applied a different approach to the one we have articulated. In our view his approach to the construction of the clause was correct.

Did Bunnings comply with its obligations?

[24] We have considered the evidence in this matter. In our view it cannot be doubted that Bunnings had regard to the family responsibilities of the four employees in the SKF area, insofar as such factors were raised by them. In Mr Lamb’s case, Bunnings consulted with him regarding the new roster. When he raised his objections to working on Fridays and Saturdays, it reformulated a roster which reduced the Friday/Saturday requirement for Mr Lamb and the other employees who had expressed opposition to being rostered on those days. It was motivated by the desire to increase the coverage of the four SKF employees on Thursdays, Fridays and Saturdays in order to maximise the expertise and sales ability of its staff on the busiest days for that product range. In our view this was a legitimate factor to take into account. Mr Lamb’s family circumstances were also legitimate factors to take into account. Indeed Bunnings was required to do so, and clearly on the evidence, it did.

[25] Counsel for Mr Lamb relied on an aspect of the cross-examination of Mr Randell, the Complex Manager of Bunnings’ Lismore warehouse, who gave evidence of a compromise arrangement discussed with Mr Lamb whereby Mr Lamb would work part-time from Monday to Wednesday each week. Although Mr Lamb rejected the proposal, it was submitted that the indication by Mr Randell that this would be acceptable to Bunnings cast doubt on the ultimate decision of Bunnings that Mr Lamb was required to work on some Fridays and Saturdays. Bunnings submits that this submission takes the evidence of Mr Randell out of context.

[26] We are not satisfied that Mr Randell’s evidence casts doubt on the legitimacy of Bunnings’ reliance on operational requirements. The evidence on this matter concerned discussions well after the event, subsequent to the formulation of the roster and after having regard to the family responsibilities of Mr Lamb and the other SKF employees. Mr Randell thought that a part-time arrangement might be acceptable because it freed up the ability to roster other employees on Fridays and Saturdays but Mr Lamb did not agree to move to part-time.

[27] In our view the conclusion of the Commissioner that in setting its roster in the SKF area Bunnings had regard to Mr Lamb’s family responsibilities and thereby complied with its obligations under the Agreement is correct.

[28] The appeal in this matter is against a decision regarding the interpretation of the Agreement. It is to be determined by considering whether the conclusion reached by the Commissioner was erroneous. Insofar as the appeal grounds raise issues with the reasoning of the Commissioner we have not found it necessary to consider them.

Conclusions

[29] For the reasons above we are of the view that the conclusions reached by the Commissioner were correct. Bunnings had an obligation to have regard to Mr Lamb’s family responsibilities when setting the new roster in the SKF area. The proper construction of the clause in question is addressed in detail above. We find that Bunnings carried out that obligation in establishing the roster in the SKF area involving Mr Lamb and the other SKF employees.

[30] As the dispute relates to the allegation that Bunnings did not comply with its obligations to have regard to family responsibilities, neither the decision of the Commissioner nor this appeal requires a consideration of whether the ultimate decision of Bunnings regarding its roster was fair and reasonable.

[31] In the light of the wording of clause 36 of the Agreement there is some doubt whether permission to appeal is required. We consider that clause 36.7 does more than acknowledge the possible existence of a right to appeal. In our view it independently creates such a right. 6 It follows that permission to appeal is not required. If permission to appeal was required we would be disposed to grant it.

[32] For the above reasons we dismiss the appeal.

VICE PRESIDENT WATSON

Appearances:

A. Rogers, of counsel, with R. Tonkli of the Shop, Distributive and Allied Employees Association for Mr Lamb.

J. Darams, of counsel, with A. Goonrey, solicitor, for Bunnings Group Limited

Hearing details:

2013.

Sydney.

May, 1.

 1   AE884757.

 2   (2005) 222 CLR 241.

 3   (1996) 66 IR 182.

 4   (1982) 149 CLR 337.

 5   (1979) 180 CLR 322.

 6   “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Silcar Pty Ltd[2011] FWAFB 2555.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR536210>