Quality Maintenance Services Pty Ltd v The Australian Workers' Union

[2010] FWA 2642

[2010] FWA 2642

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Quality Maintenance Services Pty Ltd
v
The Australian Workers' Union
(C2010/2565)

QUALITY MAINTENANCE SERVICES PTY LTD AND AWU ONSHORE MAINTENANCE AGREEMENT 2009
(AE872231)

Metal industry
COMMISSIONER BLAIR	MELBOURNE, 6 APRIL 2010

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

[1] The following decision (now edited) was handed down in transcript in an arbitration which took place before Fair Work Australia (the Tribunal) in Melbourne on 18 March 2010.

[2] “This is an application under section 739, which is an application to deal with a dispute. The applicant in the matter is Quality Maintenance Services Pty Ltd (QMS), and the Australian Workers Union (Union).

[3] The matter in dispute is about any matters arising under the Enterprise Agreement (Agreement) and National Employment Standards (NES). A conciliation conference occurred on 20 January 2010. However, the parties were unable to resolve their differences. The matter was then set down for arbitration.

[4] There are two issues before the Tribunal. One is whether or not clause 6.1.4(a) of the Award, Methods of Arranging Ordinary Working Hours, overrides the provisions in the Agreement approved by her Honour Acton SDP on 18 November 2009.

[5] Clause 6.1.4(a) states, in part:

The arrangement of ordinary working hours is to be by agreement between the employer and the majority of employees in the enterprise or part of the enterprise concerned.

[6] The Union's argument is that the proposed changes to the roster have to be agreed. The proposed changes to the roster arise because of a decision made by the client, in this case, Esso Australia (Esso), who indicated to QMS that they required them to change their rosters. There appeared to be no consultation with QMS. It appeared to be a directive, with Esso being the client.

[7] Since that direction, there has been some consultation, and I will deal with that as the second issue. However, looking at the Agreement itself, the Tribunal is satisfied that clause 12, particularly 12.3, of the Agreement states:

Where required, employees shall observe the same work roster arrangement as that worked by the client employees and observe the same off-duty roster arrangements as the client employees.

[8] That clause does not provide anywhere for agreement. It is fairly clear. Clause 9, Efficiencies, states:

This agreement includes the following efficiencies and states flexibility in the taking of rostered days off.

[9] The proposed roster change provides for a rotating RDO. Clause 20 of the Agreement that was put forward before her Honour states in part, under the consultative procedures of clause 20:

The unions and the employer will consult each other about matters involving changes to the organisation of work.

[10] Nowhere in that clause does it provide for agreement. However, that clause was rejected by her Honour on the basis that it was insufficient and did not comply with the model consultation term, or at least, did not comply in part with the model consultation term.

[11] Her Honour sought undertakings and was given undertakings by both parties that the model consultation term would apply. That term states, in part, at point 9:

In this term a major change is likely to have a significant effect on employees if it results in ... (d) the alteration of hours of work. The model consultation clause does not provide for agreement.

[12] Having considered the argument of both parties, the Tribunal would uphold the view put forward by QMS that it is not required to reach an agreement in terms of proposing the new rosters, or implementing the new rosters, because the Agreement overrides the Award to the extent of any inconsistency.

[13] In regards to the consultation provision, the Tribunal is satisfied that the consultation process conducted by QMS has been more than adequate to address the concerns of the employees. In fact, three roster proposals were put. One of those roster proposals arose out of what only can be considered discussions or consultation with the employees themselves.

[14] QMS has taken into account, as it is required to under the model consultation clause, where it states at 5(a)(iii) – “Measures the employer is taking to avert or mitigate the adverse effect of the change on the employees”, those changes that the employer has taken into account have resulted in a roster change, or a proposed roster change, that maintains, as the Tribunal understands it, the current meal breaks and the tea breaks.

[15] It is interesting to note that, as part of Mr Healy’s evidence for the Union, he raises the issue of family responsibilities in terms of the RDOs. Mr Bradford, on behalf of QMS, correctly pointed out that that appeared not to be an issue in the points identified by the employees as to why they were not particularly happy with the proposed roster change. It may - and I am not saying this is on the part of Mr Healy - be somewhat of an afterthought by the employees themselves, given that those concerns raised – the four points that were raised - have been, in the Tribunal’s view, more than adequately addressed.

[16] The Tribunal would therefore uphold the view and the argument put forward by QMS that they are entitled to implement the rosters that they wish to implement, that is identified in a letter to employees dated 7 January 2010, and that is a four-day, 35-hour week, with a rotating RDO. The employees would start at 7 am, have half an hour meal break and finish at 4.15 pm.

[17] The Tribunal would also determine that the consultation process undertaken by QMS more than adequately meets the requirements under the model consultation clause.

[18] Therefore, the Tribunal would uphold the application of QMS.

[19] I will make the following final observation: the Union has raised several times the issue of the interest based problem-solving system, commonly called the IBPS. It is the Tribunal's view that the argument in terms of lack of consultation needs to be taken up with Esso, because QMS, in their evidence from Mr Borghesi, say that they are not part of the IBPS system; they're not participants in it. So what arose out of the IBPS - and the Union are participants in it - should be taken up with Esso. That's where I believe your argument is in regards to the lack of consultation, not with QMS.

[20] Having determined that, the Tribunal will stand adjourned sine die.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, AE872231  PR995691>