Mr Charles Bai v Knauf T/A Knauf Bulk Distribution Centre
[2024] FWC 1038
•6 JUNE 2024
| [2024] FWC 1038 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute in relation to flexible working arrangements
Mr Charles Bai
v
Knauf T/A Knauf Bulk Distribution Centre
(C2023/7509)
| DEPUTY PRESIDENT CROSS | SYDNEY, 6 JUNE 2024 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].
On 4 December 2023, Mr Charles Bai filed a Form F10 - Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure (the Application). The alleged dispute related to his employment by Knauf Gypsum Pty Ltd (Knauf/the Respondent).
The Application related to a claim by Mr Bai that in 2019, Knauf had breached the Boral Australian Gypsum Limited Camellia Enterprise Agreement 2016 (the Agreement) by failing to consult with him prior to engaging casual employees to certain positions in breach of Clause 35 of the Agreement. Mr Bai sought relief of a compensation payment of “Seek financial loss off (sic.) better payout of $500 per week for two & half years I.E.500 x 26 x 5 =$65,000”.
The Application was heard on 19 April 2024. Mr Bai relied on two statements of himself. Knauf relied on the oral evidence of Mr Bobby Kumar, the Production Manager. Both Mr Bai and Mr Kumar were cross-examined.
Background
Mr Bai started working for Knauf as a Labourer in February 2017.
On 13 February 2018, Mr Bai commenced employment as an Operator on the Cornice Line. This role worked on a continuous shift rotating roster which attracted penalty rates, shift allowance as well as overtime.
On 7 April 2019, a fire severely damaged the Cornice Line. Mr Bai and other employees were temporarily engaged with work to be performed in Reclaim area until a business continuity decision was made around the future of the Cornice Line. On the 30 April 2019, a decision was made by Management to decommission the Cornice Line plant permanently.
A meeting was called with all the affected employees, Union Organizers and Representatives, where the business informed all impacted by this change about the decommissioning of the Cornice Line. Employees were offered two options of either accepting a redundancy package or a redeployment option into the Reclaim area where three positions were available. Mr Bai chose to decline the redundancy package option and accept redeployment.
Mr. Bai remained in Reclaim until his transition to Board Line Production in about December 2021. The Reclaim Operator role was a day shift operation only, and thus did not attract any penalties or shift allowances. Both the Board Line Production role and the Reclaim Role were Level 4 roles.
Mr Bai had a broken leg from a cycling accident that resulted in him being off work for 4 to 6 months in late 2019 and early 2020.
The Respondent had shutdowns and a hiring freeze due to COVID.
Mr Bai was involved in several safety incidents in Reclaim, involving formal and informal warnings provided by management, shift team leaders and senior Operators. The warnings related to incidents while operating the forklifts. Once Mr Bai was reviewed and deemed safe to operate a forklift he was transferred to Board Line Production on availability of a position in December 2021.
While the claim in this matter relates to the period from April 2019 to November 2021, in answer to the question as to why no claim was made until December 2023, Mr Bai instructed the following submission be made, outlining a deliberate delay:[1]
I'm instructed that Mr Bai delayed so long from bringing this claim because he wanted to prove, he says, that over the two years he could perform in the production unloader role and it was after he had got the production unloader role, in about 2021, and he wanted to show that he could stay in that role before raising these issues.
The Issue and Contested Facts
Mr Bai’s complaint arises from his assertion that after about two months in the Reclaim Operator role, he discovered that the Board Line Production positions were available again and the employer had begun hiring less experienced casual workers for these roles. He claims he made several requests to Mr Kumar, to return to his full-time role as Board Line Production, but these requests were consistently denied until he was offered such a position in November 2021.
The Respondent maintained it was not approached by Mr Bai until late 2021 for the Board Line Production role, and that it was never aware prior to Mr Bai obtaining the Board Line Production role that he was aggrieved or had a claim for compensation.
Insofar as the above contested issues and facts require determination, I prefer the evidence of Mr Kumar to that of Mr Bai. Mr Kumar gave considered, consistent and responsive answers to questions asked of him, and where appropriate gave answers against the Respondent’s interests. Mr Bai, on the other hand, appeared prone to give answers that he thought would advance his case regardless of their veracity.
Enterprise Agreement
Clause 29(i), (ii), and (b) to (f) of the Agreement provide:
Grievance Procedure (Individual Employees)
The following procedure will be followed in respect to an individual employee for the settlement of any grievance which may arise over the Company’s action that disadvantages any such employee and relates:
to a question, dispute or difficulty concerning the interpretation, application or operation of this Agreement or the NES; or
(ii)to alleged discrimination in employment within the meaning of the Anti-Discrimination Act 1977 (NSW).
(b) The employee will notify (in writing or otherwise) the immediate supervisor (or, in the absence of a supervisor, the next available manager) the substance of the grievance, request a meeting with the supervisor (or aforementioned manager) for bilaterial discussions, and state the remedy sought.
(c) If the grievance is not settled within 3 days it will be brought to the attention of the Works Manager (or the manager’s designate) who will hold further bilateral discussions in an attempt to settle it.
(d) If the grievance is not settled within a further 4 days it will be brought to the attention of the General Manager (or the manager’s designate) who will hold further bilateral discussions in an attempt to settle it.
(e) If the matter has not been resolved at the conclusion of the discussions within a further 7 days the General Manager (or the manager’s designate) will provide a response in writing to the matter raised, including reasons for not implementing any proposed remedy.
(f) If the matter remains unresolved it will be referred to FWA. FWA may exercise powers including but not limited to conciliation and, if necessary, arbitration. All parties agree to be bound by any decision of FWA in arbitration.
Clause 35(j) of the Agreement provides:
(j)If the company is considering the engagement of casual or casual labour hire employees to perform work which might otherwise be performed by permanent employees under the terms of this agreement, or significant changes in the number of those labour hire employees, or the work to be performed by such employees, the company must first consult with affected employees and their respective representatives.
Applicant’s Submission
Mr Bai contends that he would have received the Board Line Production role had he been consulted with or considered under clause 35 of the Agreement. Alternatively, if it were merely probable that Mr Bai would have received the Board Line Production role, then Mr Bai sought compensation in an amount reflecting that probability in accordance with Feletti v Kontoulas.[2]
Clause 35 of the Enterprise Agreement states that before engaging casual labour to perform work which might be otherwise performed by permanent employees, the Respondent must consult with affected employees and their representatives through a consultative committee.
In late 2019, Mr Bai attempted to engage the dispute resolution processes outlined in the Agreement by approaching his manager. However, these efforts did not escalate as required by the Agreement.
Mr Bai submits that he made several requests to his immediate supervisor to return to his full-time role as Board Line Production unloader, but these requests were constantly denied. After two years of persistent requests, Mr Kumar offered him a position as Production Unloader, which Mr Bai accepted and commenced. He continues to be in that role.
Mr Bai seeks compensation for the financial disparity caused by the alleged breach of the Agreement and the failure to adhere to the dispute resolution processes specified within the Agreement. Mr Bai asserts that had he been reinstated to the Board Line Production role when it became available again in June 2019, he would have earned a higher salary, being the salary that he earns now. The claim is for the difference between what he in fact earned between June 2019 and November 2021 and what he would have earned between June 2019 and November 2021 had he been appointed to his original Board Line Production role.
Respondent’s Submission
Knauf are in a difficult position because, as I have accepted, Knauf was not approached by Mr Bai until late 2021 for the Board Line Production role, and it was never aware prior to Mr Bai obtaining the Board Line Production role, or indeed until December 2023, that he was aggrieved or had a claim for compensation.
Consideration
Even if I were to accept that Knauf breached Clause 35 of the Agreement, which is far than established on the evidence, it is abundantly clear that Mr Bai has failed to follow the prescriptive Individual Employee Grievance Procedure outlined in Clause 29. The time frames and issue notifications in that clause are broadly disregarded, with the result that the “gateway” requirements for referral to and determination by the Commission (referred to as FWA in the Clause) have not been met.[3]
However, even if both the above identified clauses of the Agreement were somehow met, it would not be the case that I would award the compensation sought. Both the Board Line Production role and the Reclaim Role were Level 4 roles. The Reclaim Operator role was a day shift operation only, and thus did not attract any penalties or shift allowances, whereas the Board Line Production role did attract penalties or shift allowances.
Overtime, penalties and shift allowances are payments made to compensate for working such unfavourable shifts and hours. The essence of Mr Bai’s claim is that he seeks to be paid penalties and shift allowances without having worked the required unfavourable shifts and hours. Without having worked the unfavourable shifts and hours, there can never be an entitlement to such payments, and to order such payments would be inconsistent with the Agreement.[4]
I would also never exercise my discretion to make the compensation orders sought in the circumstances where Knauf was not approached by Mr Bai until late 2021 for the Board Line Production role, and that it was never aware until December 2023, that Mr Bai was aggrieved or had a claim for compensation.
The Application is dismissed.
DEPUTY PRESIDENT
Appearances:
P. Lin of Counsel with L. Lam, instructing solicitor for the Applicant.
R. De Souza for the Respondent.
Hearing details:
Sydney.
In Person.
19 April 2024.
[1] Transcript PN 131.
[2] [2000] NSWCA 59.
[3] Shields v Alferd Health [2012] FWA 162.
[4] S.739(5) of the Act
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