Shop, Distributive and Allied Employees Association v Bunnings Group Limited

[2015] FWC 8622

[2015] FWC 8622

FAIR WORK COMMISSION

DECISION

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

Shop, Distributive and Allied Employees Association
v
Bunnings Group Limited
(C2015/2680)

DEPUTY PRESIDENT BULL SYDNEY, 17 DECEMBER 2015

s.739 -dispute arising under the Bunnings Sydney Distribution Centre Enterprise Agreement 2013 (AG 2013/6659)

[1] This matter arises out of an application filed by the Shop Distributive and Allied Employees’ Association New South Wales Branch (SDA) pursuant to s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to settle a dispute arising under the Bunnings Sydney Distribution Centre Enterprise Agreement 2013 (AG 2013/6659) (the Agreement). The employer; Bunnings Group Ltd (Bunnings) disputes the interpretation of the Agreement by the SDA in respect of clauses 7.12 Dress and Presentation Standards and 8.9 Protective Clothing.

[2] The matter was first addressed at a conference held before the Commission, however the parties were unable to resolve their differences and subsequently the SDA requested the issues in dispute be arbitrated before the Commission.

[3] Mr Walker; an industrial officer for the SDA appeared on behalf of the SDA and Mr A Goonrey a solicitor sought permission to appear on behalf of Bunnings. Mr Walker did not oppose Mr Goonrey’s appearance and leave was granted for Mr Goonrey to appear on the basis that legal representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter as per s.596(2)(a) of the Act.

[4] During the course of the proceedings; the parties to their credit, were able to resolve the dispute in respect to the interpretation of sub clause 7.12 Dress and Presentation Standards which left the dispute in respect to cl. 8.9 Protective Clothing of the Agreement to be determined by the Commission.

[5] All parties accept that the Agreement’s Dispute Resolution Procedure at cl. 8.8 of the Agreement allows the dispute to be resolved by having the matter arbitrated in the Commission.

Issue in dispute

[6] Employees of Bunnings who are covered by the Agreement are required to wear high visibility clothing while at work, this includes fluorescent tops, polo shirts, jackets, as well as hats which the SDA submits meets the definition of protective clothing under cl. 8.9 of the Agreement. This is because the provision of such clothing is necessary for Bunnings ‘to meet its obligation to provide a safe work environment for team members’ as provided by sub clause 8.9(f). As a consequence the SDA state that the Agreement at sub clause 8.9(h) requires that all high visibility clothing be ‘laundered’ by Bunnings. 1

[7] Bunnings disputes that the Agreement requires all protective clothing to be ‘laundered’ at its expense.

Submissions of SDA

[8] In support of its position, the SDA tendered three witness statements which were admitted as evidence subject to some admissibility issues raised by Bunnings without the need for cross examination. Witness statements were provided by:

● Mr Harrison Ojo - Full-time team member at the Eastern Creek Distribution Centre and SDA union delegate;
● Mr Martinus Kraaymaat - Full-time team member at the Eastern Creek Distribution Centre; and
● Mr Joseph Bourke - Full-time organiser of the SDA responsible for the Bunnings Sydney distribution centre.

[9] The SDA submit that all team members (employees) are required to wear high visibility clothing as part of its dress policy. This is not disputed by Bunnings.

[10] It is necessary to extract cl.8.9 Protective Clothing of the Agreement in full to ascertain the argument put by the SDA:

“(a) If a team member is required to work in the rain the team member shall be provided free of charge with oil skins or suitable waterproof clothing and, upon request by the team member, with suitable wet weather footwear.

(b) The Company shall provide free of charge to team members where appropriate safety boots/shoes. Such boots/shoes shall be replaced from time to time when they wear out. The wearing of such supplied footwear will be a condition of employment except in relation to team members who are unable to wear such footwear for medical reasons and who produce a medical certificate of the fact. Any person who leaves the employment within three months of such issue will be charged half the cost of the footwear so provided.

(c) The Company shall reimburse a team member who requires prescription lenses to be case hardened the amount necessary to have the prescription lenses case hardened.

(d) Where a team member is performing manual tasks, such as the handling of timber, metal, cable or other materials, upon which would warrant the supply of protective gloves, such team members shall be supplied gloves by the Company free of charge. Protective gloves will not be supplied in circumstances where it would be hazardous if they were to be worn nor shall they be supplied in circumstances where the Company deems it inappropriate.

(e) Team members required to work out in the sun shall be provided with protective head gear. The Company will provide sunscreen to all team members who are required to perform any or all of their duties outdoors.

(f) Suitable protective clothing and/or accessories shall be provided to team members free of charge who are required to perform duties which may lead to excessive soiling or damage to clothing or instances where the provision of such clothing and/or accessories is necessary for the Company to meet its obligation to provide a safe work environment for team members.

(g) Where such protective clothing, and/or accessories have been provided to a team member they shall be required to use such clothing and/or accessories at all times. If a team member is unwilling or refuses to use such clothing and/or accessories, they may be subject to counselling by the Company.

(h) Items of protective clothing detailed in this clause shall be cleaned where appropriate by the Company at the Company's expense.

(i) The Company will provide padded jackets on request to team members working in yards, external nurseries and drive throughs. These jackets must be returned at the end of each shift.”

(my underline)

[11] The SDA submit that the meaning of the words in subclause 8.9(h) where it states:

“Items of protective clothing detailed in this clause shall be cleaned where appropriate by the Company at the Company's expense.”

is clear and unambiguous resulting in a requirement for Bunnings to ‘launder’ all protective clothing. As high visibility clothing is an item of clothing ‘detailed’ in the clause it must therefore be laundered at the expense of Bunnings.

[12] As can be seen from cl. 8.9 Protective Clothing, reference is made to various articles of clothing and accessories throughout including:

● Oil skins
● Suitable waterproof clothing
● Suitable wet weather footwear
● Appropriate safety boots/shoes
● Hardened prescription lenses
● Protective gloves
● Protective head gear; and
● Padded jackets

there is no reference to high visibility clothing.

[13] The SDA submit that high visibility clothing which is required to be worn by all team members constitutes protective clothing for the purposes of the protective clothing clause. This conclusion is drawn from subclause 8.9(f) of the Protective Clothing clause where it states that suitable protective clothing is to be provided free of charge in two circumstances:

1. where employees are required to perform duties which may lead to excessive soiling or damage to clothing;
2. where the provision of such clothing is necessary for Bunnings to meet its obligation to provide a safe work environment.

[14] The SDA submit that high visibility clothing was introduced as a means of providing a safe work environment and therefore it falls within the second category of being necessary for Bunnings to meet his obligation to provide a safe work environment and therefore constitutes protective clothing.

[15] The SDA also submitted that team members at the Eastern Creek Distribution Centre perform duties that require them to physically handle boxes or other stock items and the high visibility clothing acts as a protective barrier where stock is in contact with their body. Further, the high visibility clothing becomes stained, soiled and dirty as a consequence of the performance of duties. Photographs attached to Mr Ojo’s witness statement 2 were said to demonstrate the nature of soiled clothing.

[16] The SDA sought to rely on Safe Work Australia’s Personal Protective Equipment (PPE) Frequently Asked Questions document 3 which stated that Personal Protective Equipment (as opposed to Protective Clothing in the Agreement) is anything used or worn by a person to minimise risk to the person’s health or safety and includes a wide range of clothing and safety equipment which relevantly includes ‘high visibility’ clothing.

[17] Reference was also made to WorkCover New South Wales’s website which also stated that Personal Protective Equipment worn by a person to minimise the risk to the person’s health or safety includes high visibility clothing. The SDA drew the Commission’s attention to regulation 46(4) of the Work Health and Safety Regulations 2011 (NSW) that requires employees to inform an employer of a need to clean any equipment.

Employer’s submissions

[18] Bunnings has a dress policy specific for its Eastern Creek Distribution Centre, where the dispute originated, which was recently amended requiring team members to wear high visibility polo shirts and/or jackets. The Bunnings Traffic Management Plan makes it mandatory for employees to Bunnings provides team members with branded polo shirts jackets/beanies without charge on a fair wear and tear basis.

[19] Bunnings does not concede that high visibility clothing meets the definition of either being protective clothing for performing duties which may lead to excessive soiling or damage to clothing, or that the wearing of high visibility clothing is necessary for Bunnings to meet its obligation to provide a safe work environment.

[20] In respect of these two issues Bunnings submits that any soiling of high visibility clothing is no more than what can usually be expected in the circumstances of performing team member tasks. The soiling of high visibility clothing was described as primarily arising from getting ‘dusty’ during the course of performing duties.

[21] Secondly it was submitted that the provision of high visibility clothing is not “necessary” for the purposes of sub-clause 8.9(f) of the Agreement which requires Bunnings’ to meet its obligations to provide a safe work environment. This is because high visibility clothing is one of the least effective methods of controlling work health and safety risks and should only be used to supplement higher level control measures. Authority for this proposition is contained in literature provided by WorkCover New South Wales and Safe Work Australia. Bunnings submitted that it was the high level control measure such as its Traffic Management Plan that was necessary to provide a safe work environment, with the provision of high visibility clothing merely supplementing its overall health and safety regime.

[22] It was further argued that protective clothing implies something more than general clothing and is something that protects the wearer from harm such as a rubber apron which may protect a person’s body from hot substances or chemicals.

[23] Finally, Bunnings states that irrespective of whether high visibility clothing is deemed to meet the definition of protective clothing, sub-clause 8.9(h) does not require such clothing to be laundered as submitted by the SDA. Bunnings submits that the sub clause, through the use of the words ‘where appropriate’ gives the employer sole discretion to decide whether to ‘clean’ an item of clothing and what process of cleaning, including laundering should be adopted.

[24] A witness statement of Mr Mark McNaught; the National Distribution Centre Manager was tendered whose evidence was that the required high visibility clothing was not provided for the purposes of duties that lead to excessive soiling or damage to clothing. Mr McNaught’s evidence was that where a team members’ clothing was soiled to the extent it was not possible to be cleaned using a standard household washing machine or had been damaged in the course of carrying out work duties, the item of clothing would be replaced by Bunnings. Mr McNaught was not cross-examined on his evidence.

Determination

[25] The Full Bench decision of Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited 4 (Golden Cockerel) traversed extensively the approach to be taken in interpreting enterprise agreements5 and held that the general approach to the construction of enterprise agreements was explained in the judgment of French J, as he then was, in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union6:

“The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘...the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘... ideas that gave rise to an expression in a document from which it has been taken’ - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services Union v Treasurer of the Commonwealth of Australia (1998)80 IR 345 (Marshall J). 7

[26] The Full Bench in Golden Cockerel then drew on other authorities to expand on the approach to be taken at paragraphs 20 to 22 of their decision:

“[20] To this we add the oft-quoted observations of Madgwick J in Kucks v CSR Limited 8  that a narrow pedantic approach to interpretation should be avoided, a search of the evident purpose is permissible and meanings which avoid inconvenience or injustice may reasonably be strained for, but:

“. . . the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.” 9

[21] Although their Honours were each dealing with the proper interpretation of an award, the same principles are apt to apply to the interpretation of enterprise agreements. 10  For example, similar observations were made in Amcor Limited v CFMEU11 (Amcor):

“Clause 55.1.1 must be read in context. It is necessary, therefore, to have regard not only to the text of cl 55.1.1, but also to a number of other matters: first, the other provisions made by cl 55; secondly, the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it; and, thirdly, the legislative background against which the Agreement was made and in which it was to operate. 12”  

[22]The fact that the instrument being construed is an enterprise agreement is itself an important contextual consideration. As French J observed in Wanneroo:

“It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities - City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned - see eg GeorgeA Bond and Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):

“Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.”” 13

[27] And at paragraph [41] of the decision, 10 principles are listed in what the Full Bench describe as principles distilled from the authorities. Principles (7) and (8) are stated as:

“7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.

8. Context might appear from:

(a) the text of the agreement viewed as a whole;

(b) the disputed provision’s place and arrangement in the agreement;

(c) the legislative context under which the agreement was made and in which it operates.”

[28] I intend to apply the approach determined by the Full Bench in Golden Cockerel. It is to be noted that although the Agreement has been in operation since 24 June 2013 and has a nominal expiry date of 30 June 2016, the predecessor agreement; being the National, Rosehill, Hemmant and Forrestfield Agreement 2009 14reflects the identical protective clothing provision at sub-clause 8.8(h). The Commission was advised that Bunnings have not at any time ‘laundered’ the work clothing of team members during the operation of the current Agreement or its predecessor under the Protective Clothing clause. It appears that this issue only arose from what the SDA and its members described as the recent adoption by Bunnings of a harsh and rigid application of its uniform/dress policy at the Eastern Creek Distribution Centre.15

[29] For high visibility clothing which is required to be worn by employees to be deemed protective clothing for the purposes of clause 8.9(f) it must either be required to prevent excessive soiling or damage to clothing or is ‘necessary’ for the company to meet its obligation to provide a safe work environment for team members.

[30] I am not persuaded on the evidence presented that employees are regularly required to perform duties which may lead to excessive soiling or damage to clothing although there may be occasions where excessive soiling or damage to clothing occurs. As such, I do not accept that the high visibility clothing required to be worn by employees provided by Bunnings is protective clothing for the purposes of protecting employees from excessive soiling or damage as referred to in the first part of sub-clause 8.9(f).

[31] While not conceding that fluorescent clothing constitutes protective clothing, it was acknowledged by the employer that they are provided to ensure a safe workplace. In the employer’s response of 2 June 2015, it was stated that high visibility clothing was provided so employees would be more visible in a workplace which contains moving machinery, predominately forklifts. It was submitted however that this did not constitute protective clothing for Bunnings to meet its obligation to provide a safe work environment for team members.

[32] The Work Health and Safety Act 2011 (NSW) places an obligation on employers to ensure the health and safety of its employees 16 and in particular so far as is reasonably practicable, that the workplace, is without risks to the health and safety of any person.17

[33] Bunnings submits that the provision of high visibility clothing is only part of what it must do to provide a safe work environment and not a necessary component of its obligation to provide a safe work environment and therefore high visibility clothing does not fit the definition of protective clothing under clause 8.9(f).

[34] I am unable to accept this submission as it is clear that by Bunnings’ own policies and practices it considers the wearing of high visibility clothing as necessary to meet its obligation to provide a safe work environment for employees. This is demonstrated by the:

● mandatory requirement on all employees to wear high visibility clothing;
● acknowledgement that the wearing of high visibility clothing protects employees in a high traffic environment; and
● inclusion of the requirement to wear high visibility clothing in its Eastern Creek Distribution Centre Traffic Management Plan. 18

[35] I find that the compulsory requirement on employees to wear high visibility clothing in a distribution centre where there is frequent forklift activity is a requirement necessary for Bunnings to meet its obligation to provide a safe work environment for its employees.

[36] Having determined that the required high visibility clothing meets the purposes of subclause 8.9(f) of the Protective Clothing clause of the Agreement, this leaves the question as to whether high visibility clothing is required to be laundered as claimed by the SDA.

[37] The first point to note is that sub-clause 8.9(h) does not require any items of protective clothing to be laundered. It is unclear how the SDA have substituted in their claim the word ‘cleaned’ for ‘laundered’. The Australian Concise Oxford Dictionary Fifth Edition defines the word launder as meaning to wash and iron. The word ‘laundered’ is not used in the Protective Clothing clause as it is for example in clause 7.12 - Dress and Presentation Standards at sub-clause 7.12(d) in reference to an employee who is required to wear a uniform where Bunnings is obliged to ‘launder’ the uniform at its expense.

[38] The use of the word “clean” 19 as opposed to ‘launder’ is a discrete and deliberate distinction. Further the sub-clause refers to shall be cleaned ‘where appropriate’ which indicates a less than routine process and conducted on an as needs basis. I do not accept the submission of Bunnings that the words “where appropriate’ result in the decision whether to ‘clean’ an item of protective clothing is up to Bunnings to determine at its discretion. This should be approached in a common sense manner by all parties, cleaning ‘where appropriate’ does not equate to routinely or regularly. Laundering to remove for example perspiration or to freshen up a high visibility article of clothing; is the employee’s responsibility as it is for any other article of clothing worn by an employee.

[39] It is clear that the drafters of the Agreement intended to distinguish the requirement to clean an item of clothing from the requirement to ‘maintain’ and ‘launder’ an item of clothing such as a uniform as found in sub-clause 7.12(d) of the Agreement.

[40] I am unable to accept the SDA’s interpretation that sub-clause 8.9(h) of the Agreement requires an employee’s high visibility clothing to be “laundered” as this would require the substitution of the word ‘clean” with the word ‘launder’, an impermissible approach to interpretation. The clause requires Bunnings to clean where appropriate items of protective clothing, I do not regard the obligation requiring Bunnings to do anything other than clean where appropriate items of protective clothing that may become for example excessively soiled to the extent where normal laundering would not suffice, or the article cannot be laundered.

[41] The dispute is determined by a finding that in respect of clause 8.9 Protective Clothing of the Agreement that:

1. High visibility clothing is protective clothing for the purposes of subclause 8.9(f); and
2. Items of protective clothing are not required to be laundered.

DEPUTY PRESIDENT

Appearances:

Mr P Walker, Industrial Officer of the SDA on behalf of the applicant

Mr A. Goonrey, Solicitor for the respondent

Hearing details:

Sydney

2015

12 October

 1   See [15]and [29] of SDA Outline of Submissions – Exhibit A4

 2   Exhibit A1

 3   Attachment D to Exhibit A4

 4  [2014] FWCFB 7447

 5   however, much of which is not relevant to this matter

 6 (2006) 153 IR 426

 7   Ibid at 438

 8 (1966) 66 IR 182

 9   Ibid at 184

 10   See Swire Cold Storage Pty Ltd v TWU [2008] AIRCFB 397 at [29] and AMWU v Silcar Pty Ltd [2011] FWAFB 2555 at [11]

 11 (2005) 222 CLR 241

 12   Ibid at 253 per Gummow, Hayne and Heydon JJ

 13 (2006) 153 IR 426 at 440

 14   AC328056

 15   This formed the basis of a dispute that was also part of this application but has now been resolved

 16   S.19 Primary duty of care

 17   S.20 Duty of persons conducting businesses or undertakings involving management or control of workplaces

 18   Attachment B of Exhibit R1

 19   Free from dirt or contaminating material - Australian Concise Oxford Dictionary Fifth Edition

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