Melanie Farnden v Coles Supermarkets Australia Pty Ltd
[2020] FWC 4124
•28 AUGUST 2020
| [2020] FWC 4124 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Melanie Farnden
v
Coles Supermarkets Australia Pty Ltd
(C2020/5039)
COLES SUPERMARKETS ENTERPRISE AGREEMENT 2017
[AE428094]
COMMISSIONER HAMPTON | ADELAIDE, 28 AUGUST 2020 |
Dispute about matters arising under the enterprise agreement – weekend roster arrangements – whether employer had regard to relevant family and carer responsibilities as required by terms of enterprise agreement – meaning of the provision ascertained and applied to the facts – some relevant circumstances present and employer had regard to these in proposing a series of rosters that were all declined – absence of detail and evidence about certain responsibilities – found that employer has met agreement terms – able to apply proposed roster – recommendations made about implementation given particular history and facts of this matter – determination made.
1. The dispute and its context
[1] This matter is being determined by the Commission as a result of an application lodged by the Shop, Distributive and Allied Employees Association (the SDA) on behalf of its Member Ms Melanie Farnden (the Applicant) under s.739 of the Fair Work Act 2009 (the FW Act).
[2] Ms Farnden is employed by Coles Supermarkets Australia Pty Ltd (the Respondent or Coles) under the terms of the Coles Supermarkets Enterprise Agreement 2017 (the Agreement) in its Munno Para Store as the Full-Time Bakery Team Lead.
[3] The dispute concerns roster arrangements determined by Coles that require, amongst other parameters, Ms Farnden to work four weekend days per month or on both Saturday and Sunday of every second weekend. Ms Farnden contends that in so doing, Coles has not had regard to her family and caring responsibilities as required by clause 8.4 of the Agreement.
[4] It is common ground that as a Team Leader, Ms Farnden’s role requires her to undertake some work on weekends.
[5] Having first raised the issue in July 2019, between 6 February 2020 and 15 June 2020, Coles proposed to Ms Farnden various proposed rosters for weekend work. Most recently, Coles advanced the Sixth Proposed Roster, which would require Ms Farnden to work every second weekend (specifically, on Saturday from 8am to 4pm and on Sunday from 9am to 5pm).
[6] Ms Farnden has not agreed to any of the proposed rosters. The dispute about this matter has been dealt with under the relevant dispute resolution procedure (DRP) of the Agreement (clause 3.2) but remains unresolved. As a result of a form of status quo provision concerning roster disputes within the DRP (clause 3.2.12), Ms Farnden has continued to work a roster that involves working every second Saturday (9am to 5pm), and no Sundays.
[7] It is common ground between the parties that the DRP has been followed in this matter and that the Commission has the jurisdiction to determine the substance of the application. 1
2. Agreed Questions to be Arbitrated
[8] The following questions to be arbitrated were agreed by the parties:
“1. Did the Respondent have regard for the Applicant’s family or caring responsibilities, as required by clause 8.4.8 of the Agreement, in proposing that the Applicant work four weekend days per month or both Saturday and Sunday every second weekend?
2. Given the Applicant’s family or caring responsibilities, is it fair and reasonable for the Applicant to continue working a weekend roster within the availability she has provided (being available only every second Saturday)?
3. Is the Respondent entitled to change the Applicant’s roster to the Sixth Proposed Roster, to take effect 7 days from the date of the Fair Work Commission’s decision (clause 8.4.5 of the Agreement)?” 2
3. Statement of Agreed Facts
[9] For the purposes of the current matter, the Applicant and the Respondent have agreed the following facts: 3
“A. THE APPLICANT’S ROLE
1. The Applicant commenced employment with the Respondent on 25 October 1999.
2. The Applicant is currently employed by the Respondent as a Full-Time Bakery Team Lead at the Munno Para store in South Australia.
3. The Applicant’s Bakery Team Lead role is covered by the Coles Supermarkets Agreement 2017 (Agreement). She is classified as a “Level 6” employee under this Agreement. Before her reclassification, she was classified as a “Level 4” under the Agreement.
B. WEEKEND WORK
4. As a Team Lead, the Applicant’s role requires her to work some weekends. This expectation is recorded in the ‘A Day in the Life of Bakery (Proprietary Bread) December 2018’ document and the ‘A Day in the Life of Bakery (In-Store Bread / Frozen Dough / Parbake) January 2020’ document (DILOs). The DILOs are the Respondent’s system of recording how work needs to be done in each department in each supermarket, to meet customer demands and supply schedules. (copies of the DILOs were attached).
5. The subheading ‘Team’ in the ‘Weekly’ section of the DILOs states:
Roster [the] Bakery Manager [to work on] every second weekend and as a minimum of one late shift per week to ensure consistent standards across all hours of the day.
6. The reason that Team Leads are required to perform weekend work is to supervise their teams and ensure appropriate standards, to meet customer demands, at a time when stores are typically most busy. The Respondent requires its stores to have a leadership presence at all times, including on weekends. However, the Respondent only requires half the number of its store leaders to be present during weekend shifts, relative to the leadership presence during weekday shifts. The Respondent expects leaders will share this responsibility for weekend work fairly across the leadership team.
7. Clause 8.1.3 of the Agreement allows for ordinary hours to be rostered on weekends.
C. THE BAKERY DEPARTMENT
8. The Bakery Department is one of 8 Departments within the Respondent’s Munno Para supermarket. The Bakery Department at Munno Para receives almost all of its products pre-baked from various ‘bakery hub’ sites. It bakes donuts in store.
9. The Munno Para store is open between 10am – 5pm on a Saturday, and between 11am – 5pm on a Sunday.
10. The usual hours of work on a weekend day in the Bakery Department for a Team Lead across the Respondent’s operations are Saturday from 8am – 4pm, and Sunday 9am – 5pm. However, at the Munno Para store the usual weekend day hours for a Team Lead are currently Saturday from 8am – 5pm, and Sunday 9am – 5pm.
11. The Bakery Department team members are expected to start work two hours prior to the commencement of trade to enable enough time to process the delivery of fresh baked goods.
12. In the Bakery Department, the busiest time during the work day on a weekend is the whole of the Saturday day of trade, and between 11am to 2pm on Sunday. It is particularly important that Team Leads provide supervision when the bakery delivery is received in the morning, as it is when issues are most likely to arise.
D. DISCUSSIONS REGARDING THE APPLICANT’S ROSTER
June 2019 meeting
13. In or around June 2019, the Munno Para Store Manager, Damon O’Brien, spoke with the Applicant about the responsibilities of the Bakery Team Lead role. During this conversation, Mr O’Brien said words to the effect that the Team Lead role required the Applicant to work every second weekend or four weekend days per month, and that the Respondent proposed to change the Applicant’s roster accordingly.
14. In response, the Applicant said words to the effect that she had commitments with her son’s soccer team, including that she was the first aid attendant for her son’s soccer game, and so she was unable to work on Sundays.
15. Following this, Mr O’Brien said words to the effect that, as the Applicant had made a commitment for the 2019 soccer season, the Respondent proposed that the Applicant work every second Saturday from 8am to 5pm until the soccer season concluded. The Applicant accepted this proposal, and has worked this roster arrangement since that time.
16. Mr O’Brien advised the Applicant that the Applicant’s roster, including her weekend days of work, would be reviewed in approximately six months, in December 2019.
January 2020 meeting
17. In January 2020, Mr O’Brien approached the Applicant and said words to the effect that he understood that the soccer season had concluded, and so the Respondent proposed to review the Applicant’s roster to see the Applicant work every second weekend, or four weekend days each month.
18. In response, the Applicant said words to the effect that she was not available to work every second weekend or four weekend days each month. She did not provide a reason for her unavailability.
6 February 2020 meeting
19. On 6 February 2020 Mr O’Brien and the Munno Para Store Support Manager, Lisa Beaty, met with the Applicant and discussed the Applicant’s roster. Mr O’Brien proposed that the Applicant work every second weekend on both Saturday (continuing her hours of 8am to 5pm) and Sundays from 9am to 5pm (First Proposed Roster).
20. The Applicant responded to the effect that she could not work Sundays, because of her son’s soccer commitment. In response, Mr O’Brien asked if the Respondent’s husband was available to attend the soccer game. The Applicant advised that he was, but that she still could not commit to working Sundays.
12 March 2020 dispute notification
21. On 12 March 2020 the Applicant notified a dispute in writing under the Agreement, in relation to the First Proposed Roster, on the basis that the Applicant could not work any Sundays because of her son’s sporting commitments. She said she was required to attend soccer games was because she was a first aid attendant, and because she transported her son to and from his games.
5 May 2020 meeting
22. The Applicant and Respondent met again on 5 May 2020.
23. This meeting was attended by Mr O’Brien and Ms Beaty on behalf of the Respondent, and the Applicant, and her representative, Monique Luccon (nee Kalivis) of the Shop, Distributive & Allied Employees’ Association (SDA). At this meeting, Mr O’Brien and Ms Beaty proposed that the Applicant work alternative rosters that involved:
(a) work every second weekend on both Saturday and Sunday, re-stating the offer of the First Proposed Roster; or
(b) work every Saturday from 8am to 5pm (Second Proposed Roster).
24. In response, the Applicant said words to the effect that she could not work the Second Proposed Roster due to her caring responsibilities for her nephew every second Saturday, and that she could not work the First Proposed Roster because she was required at her son’s soccer games as a first aid attendant.
Email exchange on rosters
25. On 11 May 2020 Ms Luccon emailed the Respondent’s Regional People and Culture Manager for the Munno Para store, Kirsty Hack. The email included words to the effect that the Applicant was available to work two full weekends a month from September to March 2020. However, due to her sporting and family commitments, the Applicant was only able to work two weekend days a month between March and August 2020.
26. In response later that day, Ms Hack sent Ms Luccon an email containing words to the effect that:
(a) Team Leaders in the Respondent’s supermarket departments were required to work every second weekend, or four weekend days per month;
(b) the Respondent had proposed two roster options on 5 May 2020, one being both weekend days every second weekend, and the other being every Saturday;
(c) she acknowledged the Applicant’s sporting and family commitments;
(d) the Applicant had informed the Respondent that the Applicant’s husband worked weekdays, and also attended their son’s soccer games; and
(e) the Respondent would like further detail regarding the Applicant’s hours of care of her nephew and the hours of the soccer game commitment, so that a shorter Sunday shift could be considered by the Respondent, which may accommodate the Applicant’s commitments, and information on why the Applicant is not able to work the proposed roster currently and over the last few months given that there are no sporting matches on.
27. On 14 May 2020, Ms Luccon emailed Ms Hack words to the effect that:
(a) on Saturdays the Applicant cared for her nephew between approximately 9am to 5pm; and
(b) the Applicant was willing to work every second Sunday from 2pm – 5pm, but that this was as far as the Applicant was ‘willing to go’.
28. On 19 May 2020, Ms Hack emailed Ms Luccon suggesting that the Applicant, Ms Luccon and Mr O’Brien meet to resolve this issue.
29. Later that day, Ms Luccon emailed Ms Hack with words to the effect that the Applicant did not believe there to be any merit in meeting, if the Respondent could not accept the Applicant’s proposal to work every second Sunday between 2pm – 5pm.
30. On 20 May 2020, Ms Hack emailed Ms Luccon with words to the effect that the Respondent would consider a shorter shift on Sundays, but the specific shift time of 2pm – 5pm did not suit the Respondent’s business requirements, as the majority of operational tasks in the Bakery Department are performed in the morning. Ms Hack again suggested the parties meet to attempt to resolve the matter.
31. In response, Ms Luccon said that she and the Applicant were available to meet at 2pm ‘next Tuesday’ (26 May 2020).
32. (emails attached)
26 May 2020 meeting
33. On 26 May 2020, Mr O’Brien, Ms Hack, the Applicant and Ms Luccon met and discussed further options, with a view to accommodating the Applicant’s family and caring responsibilities. The Respondent proposed the following additional rosters:
(a) the Applicant work:
(i) every second weekend (both Saturday and Sunday) from September to March – the First Proposed Roster; and (ii) then work every second weekend from March to September (during the soccer season) comprised of either:
(1) 8 hours on Saturday, and 3 hours on Sunday from 6:00am – 9:00am (Third Proposed Roster); or
(2) 8 hours on Saturday, and 3 hours on Sunday from 7:00am – 10:00am (Fourth Proposed Roster); or
(b) the Applicant work every second weekend (both Saturday and Sunday) from September – March and then work every second weekend (Saturday 8 hours and Sunday split shifts from 6:00am – 8:00am and 2:00pm – 5:00pm, subject to an Individual Flexibility Agreement) from March to September during the soccer season (Fifth Proposed Roster).
(Proposed rosters attached)
34. The Applicant said words to the effect that she did not accept either of these rosters.
35. In response, Mr O’Brien said words to the effect that he would like to see the soccer fixture, to inform the Respondent’s consideration of alternative rosters. In response, Applicant said words to the effect that the soccer program was not released until 29 May 2020.
36. The parties agreed to reconvene after this date to consider options.
28 May 2020 exchange
37. On or around 28 May 2020, Ms Hack and Ms Luccon discussed the proposed rosters by phone. Ms Luccon said words to the effect that the Applicant had told her that:
(a) the Applicant could now not work Sunday mornings, as the Applicant’s husband had ‘blackbelt’;
(b) the Applicant proposed to work Sunday afternoons only, and no other weekend time; and
(c) if the Applicant was to work Sundays, the casual team member in the Bakery Department who then worked on Sundays would be disadvantaged, as she would no longer be required.
38. On 28 May 2020, Fabian Moore of the SDA emailed Ms Hack on behalf of the Applicant. Mr Moore’s email contained words to the effect that the Applicant was willing to work a roster that involved work on Sunday afternoons or nights, but not on Sunday mornings.
39. The Respondent considered the suggestion made in Mr Moore’s email, but was not able to accommodate a roster on those terms. Ms Hack emailed Mr Moore with words to the effect that:
(a) the Applicant’s proposal to work only Sunday afternoons was not accepted, as most of the operational tasks in the Bakery Department were required to be undertaken in the mornings;
and
(b) Mr O’Brien committed to rostering the casual team member in the Bakery Department onto customer service duties so that this team member would not be denied the financial benefit of working the Sunday shift.
15 June 2020 meeting with senior representative
40. On 15 June 2020, Ms Hack, Mr O’Brien, Ms Luccon and the Applicant met to attempt to resolve the roster dispute. The Respondent proposed three roster options:
(a) work every Saturday 8am - 5pm, and no Sundays - the Second Proposed Roster;
(b) work every second weekend (Saturday 8am - 4pm and Sunday 9am - 5pm) (Sixth Proposed Roster); or
(c) between March to August, work every (sic) an 8 hour shift every second Saturday, and one three hour shift at a time of her choice between 6am and 12pm every second Sunday (to be worked around personal commitments) with the remaining hours to be reallocated during the week (Seventh Proposed Roster), and to work the Sixth Proposed Roster from September to February.
(Proposed rosters attached)
41. The Applicant said words to the effect that she did not accept any one of the three options proposed at the meeting.
42. The Respondent said words to the effect that it was giving notice of its intention to implement the Sixth Proposed Roster on 6 July 2020, unless the Applicant took the matter further. The Respondent provided the Applicant with a copy of this roster, and a letter confirming the notice.
43. All rosters proposed by the Respondent had a positive effect on the Applicant’s pay because she would have received penalty rates for work on Sundays.
Fair Work Commission dispute
44. On 29 June 2020, the Applicant referred her dispute in relation to her roster to the Fair Work Commission.”
4. The immediately relevant terms of the Agreement
[10] Without detracting from the terms of the Agreement more generally, the following elements are most relevant to this matter:
“3.1.2 Consultation about changes to rosters or hours of work
(a) This subclause should be read in conjunction with clause 8.4 (Notification and changes to rosters).
(b) Where Coles proposes to change a team member's regular roster or ordinary hours of work, Coles must consult with the team member or team members affected and their representatives, if any, about the proposed change.
(c) Coles must:
(i) provide to the team member or team members affected and their representatives, if any, information about the proposed change (for example, information about the nature of the change to the team member's regular roster or ordinary hours of work and when that change is proposed to commence);
(ii) invite the team member or team members affected and their representatives, if any, to give their views about the impact of the proposed change (including any impact in relation to their family or caring, or study responsibilities); and
(iii) give consideration to any views about the impact of the proposed change that are given by the team member or team members concerned and/or their representatives.
(d) The requirement to consult under this subclause does not apply where a team member has irregular, sporadic or unpredictable working hours.
(e) These provisions are to be read in conjunction with other Agreement provisions concerning the scheduling of work and notice requirements.
“Part 8- ROSTERING AND HOURS OF WORK
8.1 Hours of work
8.1.1 All parties to this agreement recognise the 24 hour 7 day a week nature of Coles' supermarket operations.
8.1.2 This clause does not operate to limit or increase or in any way alter the trading hours of Coles as determined by the relevant State or Territory legislation.
8.1.3 Ordinary hours
(a) Ordinary hours may be worked within the following spread of hours:. (sic)
Days | Spread of hours |
Monday to Friday, inclusive | 7am – 11pm |
Saturday | 7am – 11pm |
Sunday | 9am – 11pm |
b) Hours of work on any day will be continuous, except for rest and meal breaks.
8.1.4 Maximum ordinary hours on a day
A team member may be rostered to work up to a maximum of nine ordinary hours on any day, provided that for one day per week a team member can be rostered for 11 hours.
8.2 Rostering Principles
8.2.1 Except by written agreement between Coles and a team member, team members will not be required to work ordinary hours on more than 19 days in each four week cycle.
8.2.2 Substitute rostered days off (RDOs)
(a) Coles, with the agreement of the majority of team members concerned, may substitute the day or half day a team member is to take off in accordance with a roster arrangement for another day or half day in the case of a breakdown in machinery or a failure or shortage of electric power or to meet the requirements of the business in the event of rush orders or some other emergency situation.
(b) By agreement between Coles and a team member, another day may be substituted for the day that team member is to be rostered off.
8.2.3 Accumulation of RDOs
By agreement between Coles and a team member, the rostered day off may be accumulated up to a maximum of five days in any one year. Such accumulated periods may be taken at times mutually convenient to Coles and the team member.
8.2.4 A roster period cannot exceed four weeks.
8.2.5 Ordinary hours will be worked on not more than five days in each week, provided that if ordinary hours are worked on six days in one week, ordinary hours in the following week will be worked on no more than four days.
8.2.6 Consecutive days off
(a) Ordinary hours will be worked so as to provide a team member with two consecutive days off each week or three consecutive days off in a two week period.
(b) This requirement will not apply where the team member requests in writing and Coles agrees to other arrangements, which are to be recorded in the time and wages records. It cannot be made a condition of employment that a team member make such a request.
(c) A team member can terminate the agreement by giving four weeks' notice to Coles.
8.2.7 Ordinary hours and any reasonable additional hours may not be worked over more than six consecutive days.
8.2.8 Team members regularly working Sundays
(a) A team member who regularly works Sundays will be rostered so as to have three consecutive days off each four weeks and the consecutive days off will include Saturday and Sunday.
(b) This requirement will not apply where the team member requests in writing and Coles agrees to other arrangements which are to be recorded in the time and wages records. It cannot be made a condition of employment that a team member make such a request.
(c) A team member can terminate the agreement by giving four weeks' notice to Coles.
8.3 Rostering by employment type
8.3.1 Rostering Principles for Full-time team members.
Rosters for full-time team members must comply with the following:
Rostering Provision | Requirement |
Maximum number of hours per day | 9 hours provided that one day per week can be rostered for 11 hours |
Minimum breaks between shifts | 12 hours or 10 by agreement |
Maximum number of days per week | 5 days (or 6 days in one week if no more than 4 days the next week) |
Maximum number of consecutive days worked | 6 days |
Consecutive days off | 2 consecutive days every week or 3 consecutive days per fortnight, unless otherwise agreed in accordance with subclause 8.2.6(b) above |
Weekends off for regular Sunday workers | At least 1 in 4, being a 3 day break including a Saturday and Sunday, unless otherwise varied by agreement |
Maximum number of hours in 4 week roster cycle | 152 hours |
Maximum number of days in 4 week roster cycle | 19 days or 20 by agreement |
8.3.2 Rostering Principles for Part-time team members
Rosters for part-time team members must comply with the following:
Rostering Provision | Requirement |
Minimum number of hours per day | 3 hours |
Maximum number of hours per day | 9 hours provided that one day per week can be rostered for 11 hours |
Minimum breaks between shifts | 12 hours or 10 by agreement |
Maximum number of days per week | 5 days (or 6 days in one week if no more than 4 days the next week) |
Maximum number of consecutive days worked | 6 days |
Consecutive days off | 2 consecutive days every week or 3 consecutive days per fortnight, unless otherwise agreed in accordance with subclause 8.2.6(b) above |
Weekends off for regular Sunday workers | At least 1 in 4, being a 3 day break including a Saturday and Sunday, unless otherwise varied by agreement |
Maximum number of hours in 4 week roster cycle | Less than 152 hours |
Maximum number of days in 4 week roster cycle | 19 days or 20 by agreement |
8.3.3 Rostering Principles for Casual team members
Casual team members hours of work must comply with the following:
Rostering Provision | Requirement |
Minimum number of hours per day | 3 hours |
Maximum number of hours per day | 9 hours provided that one day per week can be rostered for 11 hours |
Minimum breaks between shifts | 12 hours or 10 by agreement |
Maximum number of days per week | 5 days (or 6 days in one week if no more than 4 days the next week) |
Maximum number of consecutive days worked | 6 days |
Maximum number of days in 4 week roster cycle | 19 days or 20 by agreement |
“8.4 Notification and changes to rosters for Permanent team members
8.4.1 This clause is to be read in conjunction with subclause 3.1.2.
8.4.2 Coles will make available for team members a roster, which will show for each team member:
(a) the number of ordinary hours to be worked each week;
(b) the days of the week on which work is to be performed; and
(c) the commencing and ceasing time of work for each day of the week.
8.4.3 Coles will retain superseded notices for twelve months. The roster will, on request, be produced for inspection by an authorised person.
8.4.4 Due to unexpected operational requirements, a team member's roster for a given day may be changed by mutual agreement with the team member prior to the team member arriving for work.
8.4.5 Any permanent roster change will be provided to the team member in writing with a minimum seven days' notice. Should the team member disagree with the roster change, they will be given a minimum of 14 days written notice instead of seven days, during which time there will be discussions aimed at resolving the matter in accordance with clause 3.2 of this Agreement.
8.4.6 Where a team member's roster is changed with the appropriate notice for a once-only event caused by particular circumstances not constituting an emergency, and the roster reverts to the previous pattern in the following week, then extra work done by the team member because of the change of roster will be paid at the overtime rate of pay.
8.4.7 A team member's roster may not be changed with the intent of avoiding payment of penalties, loading or other benefits applicable. Should such circumstances arise the team member will be entitled to such penalty, loading or benefit as if the roster had not been changed.
8.4.8 When establishing or changing a roster, Coles will have regard for the family or caring responsibilities, and study commitments of the team member, and whether the team member has safe transport home.
8.4.9 A Permanent team member may arrange to swap an individual shift with another team member. Any arrangement to swap a shift must be:
(a) genuinely agreed to by both team members; and compliant with all provisions of this Agreement; and
(b) not result in any additional expense to Coles; and
(c) approved by the Store Manager or the Manager on Duty at least the day prior to the start of the shift. By agreement between the team members and the Company, less notice may apply.”
[11] It is not in dispute that Coles has complied with the roster consultation procedure set out in clause 3.1.2 of the Agreement. 4 The dispute essentially involves the import of clause 8.4.8 in the context of the parties’ circumstances and the terms of the Agreement and whether Coles has met its obligations in that respect.
5. The position of the Applicant
[12] In essence, the SDA on behalf of Ms Farnden seeks to maintain the Applicant working a weekend roster within her (present) availability and submits that it is reasonable to do so. It does so on the following basis:
• The Applicant has been employed by the Respondent for over 20 years and has proved to be an excellent and valued employee.
• Until July 2017 the Applicant was not required to work weekends and was performing her current role.
• The Respondent now proposes that she work Saturday and Sunday every second weekend or 4 weekend days a month however has provided no evidence as to why this is operationally required.
• Where an employer creates a rostering policy external to the relevant industrial agreement it must still be consistent with the employer’s obligations under the relevant industrial agreement.
• The Applicant submits that Respondent has not met their obligations under clause 8.4.8 of the Agreement in attempting to force the Applicant to work the proposed roster.
• The Applicant submits that that Respondent is seeking to apply a strict rostering policy (DILO) without giving proper regard to the Applicant’s family and caring responsibilities. Further, the Respondent is not willing to apply the DILO policy on a flexible basis to accommodate the Applicant’s availability.
• Finally, the Applicant submits that the proposed roster change is not based on any genuine operational requirement.
[13] The Applicant states her availability for work in the following terms:
• Monday: from 8:30 until 21:00
• Tuesday: from 8:30 until 21:00
• Wednesday: from 8:30 until 16:00
• Thursday: from 8:30 until 17:00
• Friday: 8:30 until 16:00
• Saturday: every second Saturday from 8:00 until 17:00. Unavailable on the other Saturday as the Applicant has sole care of her infant niece/nephew 5 during work hours.
• Sunday: available outside of her son’s soccer matches which vary in start time, travel time and location across metropolitan Adelaide. In that regard, the Applicant further advises that she:
• Lives in Williamstown which is at least a 30 minute drive into the Adelaide Hills from Coles Munno Para;
• Is the designated First Aid Officer for the (soccer) team;
• No other family member is available to transport the Applicant’s son to his matches; and
• Is willing to provide all game times and locations to the Respondent. As a result of COVID-19 the current fixture only provides details of games until 14 August 2020. There are potentially 9 further weeks of games yet to be scheduled for this season after 14 August 2020.
[14] In terms of her classification and responsibilities, the Applicant contends as follows:
• In April 2019 the Applicant raised a query regarding her classification as she was paid as a level 4 under the of the Agreement.
• The Respondent recognised that the Applicant was performing the duties of the Bakery Team Lead which is classified as a Level 6 under the Agreement. The Respondent subsequently recognised the Applicant as a Level 6 and back pay was made, and the Applicant was paid as a Level 6 from then on.
• The Applicant was not informed of any change to her duties or responsibilities from the role she had been performing prior to April 2019.
• In June 2019 the Respondent proposed that the Applicant work every second weekend or four weekend days per month.
• The Applicant provided that she was unavailable to work Sundays and as a result was not rostered Sundays but accepted a roster of every second Saturday.
• For the previous 7 years the Applicant had the same duties as a level 6 and was never required to work weekends and believes that her agreement to work every second Saturday in June 2019 represents a significant sacrifice on her behalf.
[15] The Applicant submits that the Respondent’s obligations under clause 8.4.8 of the Agreement requires that when there are family or caring responsibilities of the kind present here, there must be real merit and operational requirements to weigh against those responsibilities if they are not to be accommodated.
[16] In terms of the operational “requirements” of Coles, the Applicant contends that:
• The Respondent has relied on a company policy as the basis for the requirement for the Applicant to work the proposed roster, this being the DILO. The DILO provides the following:
“Roster [the] Bakery Manager [to work on] every second weekend and as a minimum of one late shift per week to ensure consistent standards across all hours of the day.”
• The DILO requirement does not dictate that a Bakery Manager must work both Saturday and Sunday every second weekend but rather must work every second weekend.
• The Applicant is currently working a Saturday every second weekend and as such would satisfy the DILO requirement.
• The DILO requirement provides that the Bakery Manager is rostered every second weekend to ensure consistent standards across all hours of the day.
• The Respondent has reported no issue in the performance of the department under the supervision of the Applicant at any times including on weekends.
• Further, the Applicant has been made aware that from October 2020 there will no longer be Sunday bakery loads received at the store. This would indicate a lesser need for a supervisor during these times compared to during the week when loads are received.
• The Applicant submits that the Respondent has provided no evidence that the proposed roster is based on any operational requirement.
[17] Rather, according to the Applicant, the proposed change to the hours of work was undertaken by Coles in the context of Ms Farnden raising concerns about her classification level and then being properly classified as a Level 6. Further, the Applicant contended that there were no relevant operational or other changes that took place since the reclassification that would provide justification for the proposed change in weekend hours for Ms Farnden. Indeed, it was contended that the decision to require Ms Farnden to work additional weekend hours would increase the wage cost for the bakery given the payment of penalty rates at the higher wage than the alternative staff.
[18] To the extent that Coles relies upon equity of requirements amongst the Team Leads within the store, the Applicant accepted that this was a commendable objective. However, she contends that this could not supersede the requirements of clause 8.4.8 of the Agreement, was not supported by evidence that could be tested, and the responsibilities of the Team Leads would never be the same in any event.
[19] In terms of the scope of relevant responsibilities under clause 8.4.8, Ms Farnden contends that as the nephew is an infant (under 2 years) and she provides care on the Saturdays, this should be considered to be close family. Further, the attendance at the Sunday children’s sport was also relevant as there was no other way for the child to attend the games.
[20] The Applicant did not give evidence in this matter but relied upon the agreed facts.
[21] The Applicant contends that the answer to the agreed questions should be as follows:
A: No
B: Yes
C: No.
6. The position of the Respondent
[22] In general terms, Coles contends as follows:
• To the extent that the reasons Ms Farnden offered to explain her unavailability for weekend work constituted ‘family and caring responsibilities’, it had regard for those responsibilities in the manner required by clause 8.4.8 of the Agreement in considering and proposing rosters for weekend work;
• Further, on a proper construction of the Agreement, Ms Farnden is not entitled to continue working a weekend roster within the limited availability she has provided, and it is not fair and reasonable that she does so; and
• It is entitled to change Ms Farnden’s roster to the Sixth Proposed Roster, effective 7 days from the date of the Commission’s decision.
[23] These propositions are in turn based upon submissions regarding the operational requirements associated with weekend work impacting upon the present dispute, the proper interpretation of the Agreement, and the steps it contends have been taken to consult Ms Farnden about the required change and to have regard to her circumstances in various ways.
[24] In respect to the operational requirements, Coles contends that:
• Ms Farnden’s Team Lead role requires her to work both weekend days every second weekend, or four weekend days per month. This is a long-standing custom and practice in the Munno Para supermarket and in Coles’ supermarkets throughout South Australia.
• Since July 2019, Coles has proposed that Ms Farnden change her roster to align with its expectation that Team Leads work weekends because:
• In April 2019, Coles identified that Ms Farnden was performing a majority of the duties of a Level 6 Team Lead under the Agreement, and so should be remunerated and managed as such.
• Saturday and Sunday are Munno Para’s two busiest trading days, and are the two busiest days in the Bakery Department. When the store is busy, it is important to have a leadership presence to ensure orders are accurate, shelves are appropriately stocked, supply issues can be dealt with promptly, team members can be supervised while working under pressure, and customer concerns can be escalated and managed promptly.
• Since July 2019, Munno Para has received deliveries of both in-store and proprietary products daily. The introduction of an ‘in-store’ bread offering in July 2019 has increased the responsibilities of the Team Lead role. In particular, Coles would like Ms Farnden, as Team Lead, to oversee the delivery, and conduct the ‘thaw-back’ process on weekend days, to ensure there are appropriate quantities of stock on the shelves to increase sales and customer satisfaction, given these are the busiest trading days and given Ms Farnden is the main person in the Bakery Department who is qualified to perform these tasks. Having a leadership presence on Sundays would improve the precision of the stock orders and use of stock in the Bakery Department. The employee that currently works Sunday in the Bakery Department is a Level 1, and so is much more junior.
• Mr O’Brien, the Store Manager, wants to ensure the responsibility for supervising staff is shared fairly across the store, between Munno Para’s Level 6 leader roles. Each Department Manager and the Store Manager at Munno Para has children, and balance family and caring commitments on weekends with their work. As Munno Para is a seven day a week operation, it is not possible for all leaders to have all or most weekend days off work. Coles balances team members’ family or caring responsibilities and its operational requirements by operating with 50% of its leadership capacity on weekends relative to week days.
• Coles has a higher operational need for a leadership presence on weekends in the mornings relative to afternoons. The Bakery Department team members are expected to start work two hours before the start of trade to enable enough time to process the delivery of fresh baked goods. This operational requirement is reflected in a roster “shape” generated for the Munno Para store through Coles’ One Team rostering system, which graphs the highest labour need in the Bakery Department each week as falling before 12pm on both Saturday and Sunday.
[25] Coles’ contends that the requirement for weekend work is intended to ensure appropriate management and oversight of the Team Lead’s Department at the weekend and to ensure consistent standards in operation and customer service across all hours of the day and days of the week. Further, it was appropriate that all leaders share in this responsibility.
[26] As to the consultation, Coles contends that:
• Coles proposed the First Proposed Roster to Ms Farnden on 6 February 2019. This roster reflected Coles’ operational requirement that Team Lead roles work both weekend days every second weekend, or four weekend days per month.
• Coles extensively consulted with Ms Farnden on the First Proposed Roster, and six other proposed rosters between 6 February 2020 and 15 June 2020. The reasons Ms Farnden provided to Coles in rejecting all seven rosters were that:
• Ms Farnden is the first aid officer at her son’s soccer matches between March and September each year;
• The soccer fixture is only released a few weeks in advance of the season, so it is difficult to commit to an ongoing roster pattern. However, she also advised that her husband attends the soccer games with her, and so her son does not depend on her for transportation. Ms Farnden first raised this feedback in July 2019, and continued to raise it throughout the consultation period of January 2020 to 15 June 2020;
• Ms Farnden cares for her nephew every second Saturday from 9am – 5pm. Ms Farnden first raised this feedback on 5 May 2020;
• On Sunday mornings her husband has blackbelt. Ms Farnden first raised this point with Coles through the SDA on 28 May 2020; and
• Ms Farnden has a concern that a casual team member working in the Bakery Department will not receive their usual penalty rate hours, if she were rostered to work Sundays. Ms Farnden first raised this point with Coles through the SDA on 28 May 2020.
• Since July 2019, Ms Farnden has continued to work a roster that involves only one Saturday (9am – 5pm) every second week. This has caused issues in the team with other Leaders on the basis that Ms Farnden receives the same Level 6 remuneration as them, and has similar family responsibilities to them, and does not meet Coles’ operational requirement for greater leadership coverage in the Munno Para Bakery Department on weekends.
[27] Coles contends that the proper approach to the construction of clause 8.4.8 of the Agreement leads to the following:
• The notion of family responsibilities extends only to dependent and immediate family members or those within the household;
• The requirement to have regard to the relevant responsibilities meant the Coles was obliged to realistically and genuinely take those matters into consideration, but not such that it was obliged to have substantial operational or other reasons to the contrary; and
• Coles was not prevented from exercising its prerogative to establish a roster that required weekend work for employees, including Ms Farnden, particularly given that the Agreement recognised that work could be scheduled in ordinary hours across the 7 days of the week and this was the nature of the retail business.
[28] In relation to what is now advanced as Ms Farnden’s family and caring responsibilities, Coles contends that:
• There was no evidence to support the contentions relied upon by the Applicant beyond that which were set out in the agreed facts;
• The decision to provide care for the nephew was not a family responsibility and there was no evidence to support the notion that this had to occur on weekends;
• The transport of the Applicant’s son to soccer during the relevant season may be a family responsibility but the decision to be available as the team’s first aid officer was not;
• The caring of children during periods when Ms Farnden’s husband was participating in his own sporting activities was capable of being a caring responsibility, however there was no evidence that this had to take place at a time that restricted Ms Farnden working on the weekend; and
• Ms Farnden did not initially raise either the care for the nephew or her husband’s alleged incapacity to attend the soccer games and only relied upon these later during the consultation process that had commenced in July 2019. In the absence of any evidence from the Applicant, it was open for the Commission to infer that these were not genuine concerns or were arranged with the knowledge that Ms Farnden was required by Coles to work on weekends.
[29] Coles further submits that, despite the responsibilities not falling within the scope of clause 8.4.8, it had regard to Ms Farnden’s circumstances by meeting Ms Farnden and the SDA to explore those matters raised by the Applicant and advancing various proposals that were responsive to the stated concerns as far as these could reasonably be accommodated.
[30] Coles posits that given all of the circumstances, and the fact that Ms Farnden did not accept any of the options proposed, it was not reasonable that the Applicant remain on the present arrangements but rather it was entitled to have the most recent roster proposal operate 7 days from the Commission’s decision.
[31] Coles led evidence from Mr Damon O’Brien, Store Manager of the Munno Para Store.
[32] The Respondent contends that the answer to the agreed questions should be as follows:
A: Yes
B: No
C: Yes.
7. Consideration
7.1 Additional factual findings
[33] Ms Farnden chose not to give evidence in this matter. Whilst I do not consider that it is necessary or appropriate to draw a negative inference from this absence that her evidence would not have assisted her case, 6 there are various assertions stated within her position that are not supported by evidence and are not consistent with, or stated as part of, the agreed facts This includes the details of some of the claimed family responsibilities and in particular the absence of options associated with Ms Farnden’s attendance at the soccer commitments. As a result, little weight can be given to these elements in determining this matter. Further, the fact that some of the detailed basis for the (un)availability as now claimed by Ms Farnden was not disclosed during the consultation process is also potentially significant.
[34] Mr O’Brien’s evidence was given in an open and honest manner and he made appropriate concessions. He was not always entirely clear about basis of the requirement for Ms Farnden to work the additional weekend hours and the role played by operational requirements. However, when considered as a whole, the position is tolerably clear and rational. That is, the additional weekend work is not an operational necessity, but based upon a range of operational and personnel considerations set out in his statement. 7
[35] Based upon the evidence that is before the Commission, the following additional findings of fact can be made in this matter.
• The Munno Para Bakery Department is a ‘medium-sized’ Bakery Department relative to other Coles stores in Australia. It is in this category because of the number of sales made. Since August 2019, the sales have increased due to the store now having “Hub” stock in store.
• Prior to July 2019, Munno Para was a “proprietary” store. This meant it only stocked baked goods that were owned and supplied by an organisation external to Coles.
• In November 2018, Munno Para started to bake donuts in-store. This involves part-time and casual team members rostered in the Bakery Department making freshly baked donuts daily, using a pre-mixed batter that is placed into a donut-making machine.
• In July 2019, Munno Para became an “in-store bakery” store. Since July 2019:
• Munno Para has received a morning supply of freshly baked bread, cookies and other products daily from a Coles “bakery hub”. The Coles bakery hub is a large kitchen facility located within Coles’ Churchill supermarket, where trade qualified Coles employees bake fresh products daily for 11 Coles stores; and
• Munno Para continues to bake donuts in-store, and receive a supply of proprietary products from Coles’ external suppliers.
• The Bakery Department uses a hub ordering system to obtain Coles-labelled baked products for sale from the Churchill supermarket. It is usual practice for orders to be placed on the system one day in advance to meet demand. Ms Farnden is the only team member at Munno Para with the training and expertise to fully utilise the ‘hub’ ordering system; however other team members may and do make adjustments to standing orders.
• The transition from a proprietary store to an in-store bakery increased Ms Farnden’s responsibilities regarding ordering and liaising with stakeholders, because she now had to liaise with the Coles bakery hub, in addition to the proprietary suppliers, to ensure that Munno Para received the correct quantities of its products.
• On 15 March 2019, the SDA, on behalf of the Applicant, raised that Ms Farnden should be classified as a Level 6 under the Agreement because her duties involved attending management meetings, training and directing other staff, rostering, because she was held responsible for the Bakery Department and any complications, and because she was responsible for ordering, stock, control, sales projections and stocktake. At that time, Ms Farnden was classified as a Level 4 under the Agreement but was receiving an allowance in recognition of her management duties. Coles subsequently agreed to formally reclassify Ms Farnden as a Level 6 and back paid her on that basis.
• Level 6 is the highest classification under the Agreement, and is the only leadership role covered by the Agreement. All other leadership roles are salaried and are not Agreement covered. As part of the re-classification of Ms Farnden, Mr O’Brien was instructed by Coles’ Workplace Support Team to ensure that all of Melanie’s duties and responsibilities aligned with the expectations of a Level 6 Team Member.
• In June 2019, Mr O’Brien said words to Ms Farnden to the effect that her Level 6 Team Lead role required her to work every second weekend or four weekend days per month, and that Coles proposed to change her roster to reflect this. In response, Ms Farnden said words to the effect that she was the first aid attendant for her son’s soccer game, and so she was unable to work on Sundays. Mr O’Brien advised Ms Farnden to the effect that, as she had already made a commitment for the 2019 soccer season, he was willing to agree to her working every second Saturday from 8am to 5pm until the soccer season concluded, but would review the roster again in 6 months’ time.
• The fundamental basis for Coles’ requirement for Ms Farnden to work the additional weekend days is based upon operational and personnel considerations. 8 The operational matters include the desirability of having Ms Farnden, as the leader in the Munno Para Bakery Department, work on every second weekend as:
• Saturday and Sunday are Munno Para’s two busiest trading days.
• When the store is busy, it is important to have a leadership presence to ensure orders are accurate, shelves are appropriately stocked, supply issues can be dealt with promptly, team members can be supervised while working under pressure, and so customer concerns can be escalated and managed promptly.
• Having a greater leadership presence on weekends would improve the precision of the stock orders and use of stock in the Bakery Department. That is, Munno Para receives deliveries of in-store and proprietary products daily. It is preferable for a leader to oversee the delivery, and conduct the ‘thaw-back’ process on weekend days, to ensure there are appropriate quantities of stock on the shelves, given these are the busiest trading days. There are no plans to change this daily delivery schedule.
• I find that Coles has a reasonable expectation of some further improvement to revenue and service standards if Ms Farnden worked on the Sundays as required; however, having Ms Farnden work additional weekend days (at the Level 6 rate compared to the other team members) will increase staff costs for the Bakery to some degree, due to the fact that the Applicant will be paid additional penalty rates for the Sunday work.
• The personnel considerations relied upon by Coles include:
• Coles’ desire to ensure the responsibility for supervising staff is shared fairly across the store, between Munno Para’s leaders. As a 7 day a week operation it is not possible for all leaders to have all weekends off work. However, on weekends, Munno Para operates at 50% of its leadership capacity relative to week days, to balance a desire to give leaders personal time on weekends; and
• There are three Level 6 Department Managers at the Munno Para store. Given Ms Farnden’s reclassification, she forms part of this group for all purposes. Each of them has children. They all work every second weekend and the fact that Ms Farnden does not presently work every second weekend is a source of disquiet amongst that group.
• The personnel considerations are the most pressing from Mr O’Brien’s perspective.
• There are presently no performance concerns with Ms Farnden as the Level 6 Team Lead or with the performance of the Bakery Department and it is clear that she is a valued member of the senior staff at the store.
• The DILO is a policy document and written in that style. It is also not part of the Agreement and must apply subject to any contrary provisions in that instrument. The DILO refers to Bakery “Manager” working “every second weekend” (and as a minimum of one late shift per week) and the evidence is that this is understood and applied within the Munno Para store (and more generally) as being work on the two days of each second weekend, rather than any single day of each second weekend.
• There is no proper basis to suggest that Coles has implemented the roster change in response to the earlier claim about the Applicant’s classification. Rather, its position is informed by the fact that following Ms Farnden’s reclassification, she is now a Team Lead for all purposes and the roster parameters and expectation relevant to that role now apply.
[36] The roster (6th proposal) now proposed by Coles for Ms Farnden is as follows:
Weeks A and C | Mon: 8.30am-5pm | Weeks B and D | Mon: 8.30am-5pm |
Tues 8.30am-5pm | Tues: 8.30am-5pm | ||
Wed: 8.30am-4pm | Wed: 8.30am-5pm | ||
Thur: 0 | Thur: 8.30am-3pm | ||
Fri: 8.30am-5pm | Fri: 0 | ||
Sat: 0 | Sat: 8am-4pm | ||
Sun: 0 | Sun: 9am-5pm |
7.2 The proper application of clause 8.4.8 of the Agreement
[37] Several Full Benches of the Commission have outlined the approach that should be adopted in considering the construction and meaning of an enterprise agreement. The most recent statement of the principles was set out in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited9 (AMWU v Berri) and I do not propose to set out those principles in this decision.
[38] More recently, the Full Court of the Federal Court in WorkPac Pty Ltd v Skene10 (WorkPac) also provided the following convenient summary of the required approach:
“[197] The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”. The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.”11 (citations omitted)
[39] The above observations are consistent with the approach taken in AMWU v Berri. In the end, the Commission’s task in this matter includes ascertaining the objective intention of the Agreement based upon the language and terms of the agreement, when read as a whole, and considered having regard to its context and purpose.
[40] For completeness, I observe that the Commission is not empowered to grant some form of binding declaratory relief.12 Rather, the Commission is considering the proper application of the enterprise agreement in order to determine the broader dispute between the parties about that instrument under the terms of the agreed dispute resolution procedure.13
[41] The context formed by the Agreement as a whole is important. This includes that the Agreement recognises that Coles trades over the 7 days of the week and that employees covered by that instrument may be rostered in ordinary time over any of those 7 days. 14 I observe in that regard that there are however some limitations that appear regarding consecutive working days and similar arrangements15 that are not directly relevant here given the competing proposals.
[42] The Agreement does recognise that weekends are not the same as other days of the week by virtue of additional payments that apply in each case. 16
[43] The Agreement also recognises that subject to the parameters and limitations set out in the instrument, Coles has the prerogative to establish the rosters confirming when employees are required to work. It must however, consult with the employees concerned when roster changes for full and part-time employees are proposed and have regard to various stated considerations that might not otherwise be consistent with the ultimate roster from a productivity, sales and services maximisation, or cost minimisation perspective. Clause 8.4.8, which lies at the heart of this dispute, is one of those factors and should be understood in its broader context.
[44] Clause 8.4 requires Coles to have regard for the family or caring responsibilities, and study commitments of the team member, and whether the team member has safe transport home, when establishing or changing a roster. Study commitments and safe travel are not relevant in this matter.
[45] In Lamb v Bunnings Group Limited, 17 the Full Bench considered a similar, but differently worded, provision which stated as follows:
“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.”
[46] The Full Bench observed:
“[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 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.”
[47] I note that clause 10.4.2 in the Bunnings case provides the preference for rosters to be set by mutual agreement and clause 10.4.3 contains considerations that are broader than those set out in clause 8.4.8 of the Agreement in this case. However, the general approach taken in Bunnings appears to be apposite here.
[48] The approach taken by the Commission regarding the issue of “managerial prerogative” was discussed by Smith, C (as he then was) in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Telstra Corporation Limited. 18
“[8] It is important to establish early in this decision that I propose to view this issue within the context of the traditional tests regarding managerial prerogative. It is settled that this Commission, and its predecessors, did not intervene in the prerogative of management to run and organise a business in the way in which it considers the most efficient manner. This prerogative was subject to it not being exercised in a manner which could be regarded as harsh, unjust or unreasonable [see Australian Federated Union of Locomotive Enginemen and State Rail Authority of New South Wales (XPT Case) [(1984) 295 CAR 188].
[9] In distinguishing between arguments in relation to jurisdiction and merit, the High Court in Re: Cram: Ex parte N.S.W. Colliery Proprietors' Association Ltd and Others, made it clear that whilst there was jurisdiction to deal with matters long regarded as managerial prerogative, great care should be taken in the exercise of that discretion. It stated:
"Rather it is an argument why an industrial tribunal should exercise caution before it makes an award in settlement of a dispute where that award amounts to a substantial interference with the autonomy of management to decide how the business enterprise shall be efficiently conducted." [(1987) 163 CLR 117 at 136-137]”
[49] The “managerial prerogative” must however be considered subject to the limitations that the employer has agreed to as part of the Agreement (such as clause 8.4.8) and subject to other relevant legislative constraints and considerations.
[50] As a result, in this case clause 8.4.8 requires Coles to genuinely have regard to the relevant family and caring responsibilities of Ms Farnden when determining her rosters. Having regard to these factors means that Coles must consider and give due weight to the factors that relevantly applied, and were known by it, as fundamental elements in exercising its discretion to set its rosters. 19
[51] This does not mean that Coles must necessarily avoid rosters that impinge to some degree upon the responsibilities concerned or requires special or significant contrary circumstances to do so. However, it is required to seek to avoid or at least reduce these consequences where reasonable to do so having regard to the range of considerations and limitations that might apply. This might be done by initiatives such as understanding the nature and implications of the responsibilities and the impact upon the employee’s desired availability, consulting with the employee about options that might reduce or eliminate the difficulties, and considering factors such as notice and providing rosters that limit or breakup the roster days that are difficult for the employee, where reasonable to do so.
[52] The proper application of clause 8.4.8 of the Agreement also requires consideration of the scope of family and carer’s responsibilities.
[53] Coles relied upon the decision in Dahler v Australian Capital Territory & Anor (No.2) 20 (Dahler) where the Federal Circuit Court was dealing the scope of the term “family and carer’s responsibilities” in the context of s.351 of the FW Act. Driver, J found:
“[35] I accept that the phrase “family or carer’s responsibilities” in s.351 should have an application consistent with the context provided by the National Employment Standards leave entitlements in the Fair Work Act part 2-2, division 7. That is, family or carer’s responsibilities should be taken to extend only to personal responsibilities for an employee’s family or a member of his or her household.” 21
[54] I observe that in s.12 of the FW Act, the term “immediate family” is defined for “national system” employees as “a spouse, de facto partner, child, parent, grandparent, grandchild or sibling [of the employee or the employee’s spouse]” and in s.17 the term “child” is extended to step-children, and other family relationships are extended accordingly.
[55] This part of the decision in Dahler was dealing with the question as to whether the applicant in that matter was a carer, for the purposes of the General Protections provisions of the FW Act, by virtue of the care and support of disabled persons provided by Mr Dahler as a direct result of his paid employment. It was not specifically directed to the scope of family and carer’s responsibilities more generally. However, the approach remains of assistance in this matter.
[56] For my part I would also have regard to the fact that under s.65 of the FW Act, an eligible employee may make a request for flexible working arrangements in certain circumstances including where the employee is the parent or has responsibility for the care of a child who is school age or younger, or where the employee is a carer within the meaning of the Carer Recognition Act 2010. 22 Given that the Agreement was made under the FW Act, this broader coverage may also be relevant to the assessment of the import of the term “family and caring responsibilities” in clause 8.4.8 of the Agreement.
[57] The difficulty in this case is that there is no evidence about the actual circumstances under which Ms Farnden looks after her nephew on some Saturdays. The assertions made in submissions about this aspect are disputed (or at least not accepted) by Coles and I cannot determine whether this role represents a relevant caring or family responsibility for present purposes.
[58] As a result, I have dealt with this matter on the basis that there may be relevant additional caring responsibilities in this respect, but ultimately it has not been necessary to determine this aspect given the matters discussed and findings made below.
7.3 The answers to the questions
[59] As will become clear, I do not consider that two of the questions can be answered with a simple response. There are caveats and additional findings and observations required in each case.
[60] In terms of question 1, the initial starting point is to consider whether Coles was required to have regard to the responsibilities relied upon by Mr Farnden.
[61] In that light, I turn to each of the responsibilities now relied upon by Ms Farnden.
• Transport of son to soccer on Sundays – there is a dispute about this related to the spouse’s sporting activities discussed below. This is not about whether this is a family responsibility but more about whether this amounts to a significant issue impacting upon availability. Subject to that aspect, I would accept that this is a family responsibility that should have been taken into account.
• Caring for her children when spouse is undertaking nominated sporting activity – this would be a carer responsibly that should have been taken into account. However, there is no evidence as to why the activity must be undertaken at that time and whether there are alternatives that might impact upon Ms Farnden’s preferred availability on the weekend.
• Acting as first aid officer at Soccer – this is probably not a carer or family responsibility within the meaning of the Agreement.
• Care for Nephew – for reasons outlined earlier, I cannot be satisfied that this is a family or carer responsibility within the meaning of the Agreement but I have allowed for this possibility. The difficulty is also that there is no evidence as to whether an alternative (as to timing) exists but I note that Ms Farnden already works some Saturdays and Coles proposed roster would involve every second Saturday.
[62] I have earlier outlined the requirements of clause 8.4.8 of the Agreement and the measures undertaken by the parties in seeking a resolution of this dispute. This includes the steps taken by Coles to understand the issues being raised by Ms Farnden and the various roster proposals advanced in response.
[63] In all of the circumstances, I consider that Coles has met its obligations under clause 8.4.8 of the Agreement (and the Agreement more generally) by consulting with Ms Farnden about her circumstances, seeking further information about the issues and options that flow from those apparent circumstances, and offering a series of alternatives that were responsive to those elements. The relevant circumstances were genuinely considered and taken into account and the personnel reasons and operational context provide a basis for the requirement that Ms Farnden work some Sundays as required. This includes those factors relied upon by Ms Farnden that may not squarely fit within the scope of responsibilities raised by clause 8.4.8. In this regard, the absence of evidence to support the precise nature and degree of the family circumstances, and the practical consequences for Ms Farnden of Sunday work in particular, is also influential in my ultimate findings. Further, the senior nature of Ms Farnden’s position and the reasonable expectations of an employee in that context, the circumstances of the Bakery in the Munno Para store, and the 7 day week staffing presumption evident in the Agreement, all provide some important context in which the relevant considerations in clause 8.4.8 were to be applied in this matter.
[64] In terms of question 2, this raises the notion of what is fair and reasonable. In the context of this dispute, this must be understood as raising the prospect as to whether it is appropriate for Ms Farnden to continue to resist the new roster.
[65] At one level it is not unreasonable for Ms Farnden to do so given the circumstances. However, there are broader considerations that must also be taken into account and fairness necessitates a consideration of all of the relevant circumstances and interests, including those of Coles and the other leaders within the Store. Given my findings, and subject to the observations below, there is no proper basis under the terms of the Agreement for Ms Farnden to refuse to work the new roster proposed by Coles.
[66] In terms of question 3, this raises the notion of Coles capacity under the terms of the Agreement to implement the final roster proposal. Given my findings that it has had appropriate regard to the relevant responsibilities of Ms Farnden in establishing and changing her roster, and having regard to the broader roster concepts within the Agreement and the context in which the roster operates, the answer must be yes. However, the final (present) roster proposal does not make accommodations for Ms Farnden’s probable circumstances to the extent that some earlier options did. To its credit, Coles fully explored some more flexible alternatives during the earlier consultation process. I appreciate the Ms Farnden rejected all of these proposals; because she did not wish to work the (additional) Sundays at all, and Coles is not bound by its earlier options. I also observe that the DILO expectations are already less onerous (as to weekend work and the impact upon Ms Farnden’s responsibilities) than the normal roster paraments operating under the Agreement more generally.
[67] As a result, ultimately Coles could apply the proposed roster, but before making a final decision it would be appropriate to expeditiously revisit the matter in light of this decision. I will make a recommendation in this regard.
[68] As to timing of the roster change, it may be that Coles is correct about the requirement to provide only 7 days notice under the terms of the Agreement. 23 However, this is stated as a minimum period and the roster change has been disputed up to this point. Some additional notice would seem reasonable in the particular circumstances of this matter and I will also make a recommendation to that end which takes account of the further process (and the informal notice inherent in such) outlined below.
8. Conclusions
[69] For reasons outlined above, I answer the questions posed by agreement between the parties as follows:
1. Did the Respondent have regard for the Applicant’s family or caring responsibilities, as required by clause 8.4.8 of the Agreement, in proposing that the Applicant work four weekend days per month or both Saturday and Sunday every second weekend?
Yes.
2. Given the Applicant’s family or caring responsibilities, is it fair and reasonable for the Applicant to continue working a weekend roster within the availability she has provided (being available only every second Saturday)?
It is not unreasonable to do so – but there are broader considerations that must also be taken into account and there is no proper basis under the terms of the Agreement to refuse the new roster proposed by Coles.
3. Is the Respondent entitled to change the Applicant’s roster to the Sixth Proposed Roster, to take effect 7 days from the date of the Fair Work Commission’s decision (clause 8.4.5 of the Agreement)?”
Yes – but there are some additional factors that I recommend be addressed by the parties before confirming what the roster will be and from what date.
[70] Further, for reasons also set out above, I recommend as follows:
A. THAT should Ms Farnden within 3 working days after this decision, indicate that one of the alternative roster options 3, 4 or 5 proposed by Coles in connection to this matter is preferred to proposal 6, Coles should then positively consider adopting that proposal in lieu of proposal 6.
B. THAT in the absence of any contrary agreement between the parties as to timing, the new roster as subsequently determined by Coles be implemented no earlier than the start of the working week commencing on or after 7 days from the date of confirmation of the new roster configuration subsequent to this decision.
COMMISSIONER
Appearances:
F Moore of the SDA on behalf of Ms Farnden, the Applicant.
R Lee, of Herbert Smith Freehills, with permission, with A Slater and E O’Sullivan on behalf of Coles Supermarkets Australia Pty Ltd.
Hearing details:
2020.
August 7.
By video conference.
Printed by authority of the Commonwealth Government Printer
<PR721604>
1 Transcript PN42 to PN48.
2 Exhibit 2 as amended during the hearing.
3 Exhibit 1 as amended during the hearing. The attachments referenced in the agreed facts have not be included in this Decision. They do form part of the relevant exhibit and have been taken into account by the Commission.
4 Transcript PN50.
5 The Statement of Agreed facts and most submissions in this matter refer to Ms Farnden’s relative as her “nephew”, whereas the submissions lodged on her behalf make a reference to “niece”. In the absence of evidence from the Applicant or any clarification during the hearing, I have relied upon the agreed facts.
6 It is open for the Commission, but not necessary, to draw a negative inference where there is an unexplained failure to call evidence - Jones v Dunkel (1959) 101 CLR 298. See also The Herran Building Group Pty Ltd v Edward Anneveldt[2013] FWCFB 4744.
7 Exhibit 3.
8 Based upon the evidence of Mr O’Brien including his cross-examination by the SDA and concessions made in that regard.
9 [2017] FWCFB 3005.
10 [2018] FCAFC 131.
11 Ibid at [197].
12 AB v Tabcorp Holdings Limited[2015] FWCFB 523 at [11].
13 See Construction Forestry Mining and Energy Union v The Australian Industrial Relations Commission and Another [2001] HCA 16; (2001) 203 CLR 645, Kentz (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FWCFB 2019 and Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82.
14 Clause 8.1 of the Agreement.
15 Including clauses 8.2 and 8.3 of the Agreement.
16 Clause 8.6.
17 [2013] FWCFB 2698.
18 PR958009.
19 See also R v Hunt; Ex Parte Sean Investments Pty Ltd (1979) 180 CLR 322 and Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389.
20 [2015] FCCA 845.
21 Relying in particular upon s.97(b) of the FW Act and the history of the terms as used in the predecessors of the current Act.
22 Section 65(1A) of the FW Act.
23 Clause 8.4.5.
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