Mr David Stingel v Ambulance Victoria - [2022] FWC 3241

[2022] FWC 3241

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739 - Application to deal with a dispute

Mr David Stingel

Ambulance Victoria

(C2022/5923)

DEPUTY PRESIDENT O'NEILL

MELBOURNE, 12 DECEMBER 2022

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]

Mr David Stingel has applied to the Commission to deal with a dispute under section 739 of the Fair Work Act 2009 (Cth) (Act) with Ambulance Victoria. The dispute is brought under the Ambulance Victoria Enterprise Agreement 2020 (the Agreement).

The parties agree that the dispute resolution procedure in the Agreement has been followed and the Commission has the power to arbitrate the dispute.

The matter was dealt with at a hearing on 11 November 2022, and permission was granted to both parties to be legally represented.

The parties agreed that the dispute will be resolved by determining the question:

“Can Ambulance Victoria amend the Applicant’s start/finish times under subclause 43.3 of the Ambulance Victoria Enterprise Agreement 2020 on 28 days’ notice to, and consultation with, the Applicant without first obtaining his agreement to do so under subclause 18.4 of the Agreement?”

I have determined that the answer to the question is No, and these are my reasons.

Factual context

Mr Stingel has been employed since 2016 as a part-time Patient Transport Officer. Throughout his employment he has worked day and afternoon shifts and has not been rostered to work night shifts.

In 2021, Ambulance Victoria decided to transition to a 24-hour operation and proposed to move to two 12-hour shifts. Mr Stingel has not agreed to work night shifts due to his family and personal circumstances. Ambulance Victoria maintains that it is entitled to require him to do so, subject to notice and consultation obligations.

Relevant provisions in the Agreement

Clause 18 is in Part 3 of the Agreement titled ‘Employment Relationship and Duties’. Clause 18 deals with part-time employment and provides:

“18. PART TIME EMPLOYMENT

18.1 An employee may make a request to work part time in accordance with this clause. The Employer will determine the request on the basis of the operational needs of the Employer but will not unreasonably refuse to accommodate a request for part time employment.

18.2 A part-time employee is an employee:

(a) who works less than full-time hours of 38 per week or less than an average of 38 hours per week over an agreed Roster Pattern;

(b) who has a regular pattern of work specifying the hours and days of the week to be worked; and

(c) whose daily commencement and finishing times will be specified.

18.3 The minimum daily engagement for a part time employee is four hours. A lesser period of engagement can be agreed between the Employer and an Employee Representative. The Employee Representative will not unreasonably withhold its agreement.

18.4 A written agreement specifying the hours to be worked each day, days to be worked and commencement and finishing times will be provided on commencement of part-time employment. Any variation to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWC 3241
Decision Date: 12 DECEMBER 2022

CaseChat Overview and Summary

The Fair Work Commission heard an application by Mr David Stingel against Ambulance Victoria, where Mr Stingel sought to determine whether the employer could amend his start and finish times under subclause 43.3 of the Ambulance Victoria Enterprise Agreement 2020 on 28 days’ notice to, and consultation with, Mr Stingel without first obtaining his agreement to do so under subclause 18.4 of the Agreement. The central issue was whether Ambulance Victoria could require Mr Stingel to work night shifts without his agreement, which he was unwilling to give. The Commission considered the ordinary meaning of the words within the relevant subclauses of the Agreement, the context of the clauses as a whole, and the principles of enterprise agreement construction. The Commission concluded that subclause 18.4 requires any variation to the regular pattern of work, including start and finishing times, to be agreed and recorded in writing, and that subclause 43.3 does not apply in respect of part-time employees. Therefore, Ambulance Victoria is not permitted to utilise the mechanism in subclause 43.3 to change a part-time employee’s start and finish times. The Commission determined that the answer to the question is no.

Orders