Silcar Pty Ltd v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
[2011] FWA 1083
•17 FEBRUARY 2011
Note: An appeal pursuant to s.604 (C2011/3580) was lodged against this decision - refer to Full Bench decision dated 29 April 2011 [[2011] FWAFB 2555] for result of appeal.
[2011] FWA 1083 |
|
DECISION |
Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.
Silcar Pty Ltd
v
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
(C2011/3145)
and
s.739 - Application to deal with a dispute
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
Silcar Pty Ltd
(C2011/19)
SENIOR DEPUTY PRESIDENT WATSON | MELBOURNE, 17 FEBRUARY 2011 |
Alleged industrial action at Silcar Pty Ltd in relation to shift roster changes and the dispute resolution procedure.
[1] This decision arises from an application, made pursuant to s.418 of the Fair Work Act 2009 (the Act), by Silcar Pty Ltd (Silcar) for an order to stop and prevent industrial action. The application was filed on 28 January 2011. It is related to an application under s.739 of the Act in matter number C2011/19, to deal with a dispute in accordance with the dispute resolution procedure of the BSL Western Port Maintenance Alliance Agreement 2010 - 2013 (the Agreement) 1 which had been filed by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (AMWU) on 24 January 2011.
[2] Both the s.418 application and the s.739 application arise from the same set of circumstances. In brief, those circumstances are:
- Within its Metal Coating Line (MCL) at its Westernport site, Silcar operates a maintenance shift, comprised of four crews (A to D) and in each case comprised of two metal and two electrical tradespersons over a four weekly period.
- In 2010, Silcar commenced a new project (Project Edge) and four employees went across to work on the project. A further employee resigned at the time. The transfers and resignation involved both the MCL day workers and shift workers. The transfers and resignation created vacant positions on the maintenance shift.
- Relevant Silcar management reviewed the crews and decided that the vacancies created an opportunity to rebalance the mix of experience, plant knowledge and skills amongst the crews by reorganising the personnel allocated to each maintenance shift, whilst leaving the role of employees, their hours and their shift pattern unchanged.
- Management decided upon crew changes, which were communicated to the shift workers at a meeting on 24 November 2010, attended by 15 of the 16 MCL shift workers, inviting employees who had any concern about the changes to raise them with management.
- Two employees, one metal and one electrical tradesperson, raised personal concerns, which were considered by management and led to a modification of the proposed new crews to accommodate those personal circumstances.
- Management communicated the modified crews to the employees by email on 6 and 9 December 2010 and 14 January 2011, advising of commencement in the week ending 23 January 2011 with a further invitation for employees to raise concerns in the email of 9 December 2010. No employees raised concerns, save for one metal tradesperson, Mr Percy, who raised a more general objection to the proposed changes with his Work Group Leader, Mr Thorn, during the first half of December 2010, contended that Silcar could not make the changes and had to follow the dispute resolution procedure in the Agreement.
- On 15 December 2010, AMWU delegate, Mr Gurney, emailed the Manager, Mr Snooks, advising him that clause 12(b) - dot point 9 - of the Agreement had not been followed and requested a Consultative Committee meeting to discuss the shift changes. On 20 December 2010, Mr Snooks replied that the consultation process had been followed and Silcar was not changing the roster (as referred to in clause 12(b) - dot point 9 - of the Agreement). Mr Gurney responded on the same day, reasserting that the correct procedures had not been followed and asking that a meeting be organised to “get this sorted”.
- On 21 December 2010, Mr Gurney emailed Human Resources Manager, Mr Wandmaker, advising him that the AMWU was placing the MCL mechanical proposed shift change into dispute, asserting that agreement had not been reached at the Consultative Committee. He suggested a meeting, involving AMWU organiser, Mr Warren, through the dispute resolution procedure. On the same day, Mr Wandmaker responded stating that Silcar had not breached the Agreement and that the proposed shift changes would proceed. He stated that Silcar only had a requirement to consult and agree through the Consultative Committee when it sought a change to shift patterns. He did not address the request to escalate the dispute resolution procedure to involve Mr Warren. On 23 December 2010, Mr Gurney responded reiterating that the “AMWU does not believe you have followed the Agreement change to rosters clause” and that the matter was in dispute and that the status quo operated in accordance with the dispute resolution procedure.
- On 12 January 2011, the Consultative Committee met. At the conclusion of the meeting, in the usual round table invitation to raise additional items, Mr Gurney raised the issue of the proposed MCL changes. Mr Wandmaker responded that it was not an appropriate issue to raise at the Consultative Committee as Silcar had already stated its position and advised him to take the matter to Fair Work Australia.
- On 17 January 2011, Mr Percy emailed Mr Thorn and indicated that he believed Silcar was not adhering to the terms of the Agreement and should have brought the changes to the Consultative Committee. He also noted his generalised concerns with the proposed changes and that the changes were in dispute and subject to the status quo provision of the dispute resolution procedure.
- On 21 January 2011, following the 14 January 2011 email to employees from management, Mr Gurney emailed both Mr Thorn and Mr Wandmaker reiterating that the AMWU was in “dissagreance” with the proposed changes, that the matter was in dispute, and that the dispute resolution procedure, including the status quo provision, applied and advised that there should not be shift changes affecting AMWU members until the dispute was resolved.
- On 21 January 2011, Mr Warren emailed Mr Wandmaker seeking a meeting as part of the dispute resolution procedure, elevating the dispute to his level, reiterating that the proposed changes were in dispute and subject to the status quo. Two hours after the email, Mr Wandmaker responded that the crew changes would proceed in late January 2011, that Silcar had not breached the Agreement, and that there was no requirement for agreement to the changes at the Consultative Committee. He advised that the next step in the dispute resolution procedure required that the dispute be lodged with Fair Work Australia.
- On the next working day, 24 January 2011, the AMWU lodged its s.739 application, describing the dispute as follows:
- Silcar sought to introduce the changed roster allocations on 26 January 2011 - the four metal tradespersons who were required to change from one crew to another, Mr Franks, Mr Thompson, Mr Percy and Mr Wicks, did not do so.
“Silcar will be implementing changes to shift roster without not (sic) reaching agreement through the Consultative Committee. They have failed to follow the Dispute Resolution Procedure and preserve the pre dispute status quo.”
[3] The immediately relevant provisions of the Agreement are found in clauses 10 and 12.
[4] Clause 10.1 states:
“10.1 Industrial Disputes
The mechanism and procedures for resolving industrial disputes will include, but not be limited to, the following:
a) The employee/s concerned will first meet and confer with their immediate supervisor. The employee/s may choose any person to act on their behalf.
Subject to i, ii, iii, and iv, below, where the employee’s representative is involved he/she shall be allowed the necessary time during working hours to interview the employee(s) and the supervisor.
b) If the matter is not resolved at such a meeting the parties will arrange further discussions involving more senior management as appropriate. The employee may invite a representative of his/her choice to be involved in the discussions. The employer may also invite into the discussions a representative of the employer.
c) If the matter remains unresolved, the employer may refer it to a more senior level of management. The employee may involve their employee representative in the discussions. In the event there is no agreement to refer the matter to a more senior level or it is agreed that such a reference would not resolve the matter the parties shall jointly or individually refer the matter to Fair Work Australia for assistance in resolving the matter.
d) In order to facilitate the procedure in 10.1:
i. The party with the grievance must notify the other party at the earliest opportunity of the problem;
ii. Throughout all stages of the procedure all relevant facts must be clearly identified and recorded;
iii. Sensible time limits must be allowed for completion of the various stages of discussion. However, the parties must co-operate to ensure that the disputes resolution procedures are carried out as quickly as possible.
iv. While the parties are attempting to resolve the matter the parties will continue to work in accordance with this Agreement and their contract of employment unless the employee has a reasonable concern about an imminent risk to his or her health and safety. Subject to relevant provisions of any State or Territory occupational health and safety law, even if the employee has a reasonable concern about an imminent risk to his or her health or safety, the employee must not unreasonably fail to comply with a direction by his or her employer to perform other available work, at the same enterprise, that is safe and appropriate for the employee to perform.
Subject to the order of Fair Work Australia (FWA) the pre-dispute status quo will apply.
e) Conciliation regarding disputes and potential disputes arising out of the operation of this clause will only commence if FWA is satisfied that:
i. Each of the preceding steps in this process has been fully complied with by the parties or either of them:
ii. The parties satisfy FWA that the matter is not able to be resolved by further discussion between the parties directly involved at the workplace.
f) If conciliation fails to resolve the matter in dispute the parties may jointly or individually refer the matter to FWA for arbitration. A matter may only proceed to arbitration under this procedure in the following circumstances:
i. Where FWA is satisfied that the matter is not able to be resolved by further conciliation; and
ii. FWA issues a formal finding to that effect.
If arbitration is necessary FWA may exercise the procedural powers in relation to hearings, witnesses, evidence and submissions, which are necessary to make the arbitration effective.
g) A party to the dispute may appoint another person, organisation or association to accompany or represent them in relation to the dispute.
h) The decision of FWA will bind the parties, subject to either party exercising a right of appeal against the decision to a Full Bench.”
[5] Clauses 12(a) and (b) of the Agreement state:
“12. Working Hours, Shift Work and RDOs
Silcar will operate under the established Western Port normal day work and shift patterns; 38 hours are worked each week or averaged over the roster/work cycle.
a) The span of normal working hours for day workers is 6am to 6pm, Monday to Friday.
b) Shift work for maintenance personnel will continue to operate as follows:
• The current four-week cycle, continuous shift work roster will continue, to provide direct support for production shifts.
• In each cycle 168 hours are rostered to be worked.
• In each cycle 220 hours are paid, inclusive of shifts falling on weekends (Saturdays paid at time and a half, Sundays paid at double time) and 16 additional paid hours.
• A shift loading of 10% is paid on all ordinary hours worked including allowances (this is the only loading applicable to the employees covered by this Agreement).
• All overtime (additional to rostered shifts) is paid at double time.
• Public holidays worked are paid at double time and a half (if rostered on or required for overtime).
• If rostered off on a public holiday, 12 hours in lieu will be credited to leave balance.
• Annual leave is paid at the rate according to the roster.
• In the event that Silcar requires changes to rosters Silcar will fully consult with affected employees and if requested, employee representatives, to reach agreement through the Consultative Committee. All endeavours will be made to mitigate against all adverse effects of changes that may be provided for within this clause. In the event that a dispute arises regarding the application of this clause, the parties will comply with disputes settlement procedures to resolve the issue, which includes the pre-dispute status quo remaining in effect.”
The s.418 application
[6] The issue for determination in the s.418 application is whether the failure of four metal tradespersons to give effect to a direction to change the shifts they work on in the MCL and the AMWU support of that position with its members constitutes industrial action for the purpose of s.418. The primary issue in that regard is whether that refusal constitutes industrial action or action in reliance on the status quo provisions of the Agreement in clause 10 and/or clause 12.
[7] In that regard Silcar contends that there is no dispute or “genuine” dispute which would activate the status quo provision in clause 10 or clause 12 of the Agreement and, in addition, clause 12 of the Agreement does not apply to the type of changes proposed - to rearrange personnel on the shift, as distinct from altering the shift pattern. In addition, Silcar argues as a secondary point that if a dispute exists under clause 10, the status quo does not operate in any case because the actions (or inactions) of the AMWU in progressing its dispute has caused prejudice to Silcar, by delaying the implementation of its proposed changes and, in those circumstances, the AMWU is not entitled to the benefit of the status quo. On either basis, Silcar submits that the failure to comply with the requirement to change to another crew constitutes industrial action.
[8] The AMWU contends that clause 12 does apply to changes of the nature proposed, there is a dispute about that and the status quo provision within clause 12 is invoked. The AMWU submits that in any case there is a dispute under clause 10 of the Agreement, invoking the status quo provision within it, which, it contends, provides for the status quo, unless altered by order of Fair Work Australia. The AMWU concedes that there may be circumstances where an order to depart from the status quo might be made, but the evidence in the current matter provides no basis for such an order. As such, the status quo within the dispute resolution procedure applies, the continuation of work on existing crews by the four metal tradespersons reflects that status quo and there is no industrial action happening or is being organised. Nor, it contends, given the evidence of Mr Warren that the AMWU would recommend that its members comply with any order of Fair Work Australia which disturbs the status quo, 2 is there any basis of finding that industrial action is threatened, impending, probable or is being organised.
[9] I find that there is clearly a dispute about the application of clause 12 of the Agreement between Silcar and the AMWU and its members, which can be raised under the dispute resolution procedure in clause 10 of the Agreement. The Agreement was approved subject to an undertaking that clause 10 would be applied to any matters arising under the Agreement, which plainly includes a dispute as to the application and operation of clause 12. The dispute about the application of clause 12 is clearly evident in the exchange of emails between Mr Gurney and Silcar managers, summarised above, with Mr Gurney making it clear that the issue is in dispute. The responses of Silcar, particularly those of Mr Wandmaker and Mr Snooks, also summarised above, make it clear that there is a dispute about the application of clause 12 of the Agreement. On the evidence that dispute goes back as far as mid December 2010. The evidence supports a finding that Mr Gurney put that matter in dispute and has escalated that dispute through the dispute resolution procedure, ultimately to Fair Work Australia through the s.739 application of 24 January 2011. The description of the dispute in the s.739 application is consistent with the basis of the dispute earlier raised with Silcar by Mr Gurney, Mr Percy and Mr Warren.
[10] However, clause 10.1(d) of the Agreement provides that “Subject to the order of Fair Work Australia (FWA) the pre-dispute status quo will apply”. Silcar submits that an order disturbing the status quo ought to be made because the actions (or inactions) of the AMWU in progressing its dispute has caused prejudice to Silcar, by delaying the implementation of its proposed changes and, in those circumstances, the AMWU is not entitled to the benefit of the status quo. The AMWU submits that no basis for such an order arises from the evidence in the circumstances of the current matter.
[11] In relation to this argument, both parties drew to my attention the decision of Harrison DP, in his capacity as a Member of the New South Wales Industrial Relations Commission, in Australasian Meat Industry Employees’ Union, Newcastle and Northern Branch v Sunnybrand Chickens and another. 3 The AMWU also relied on decisions of Deegan C in Metropolitan Fire & Emergency Services Board v United Firefighters’ Union of Australia4and Spicer CJ, Joske and Eggleston JJ of the Commonwealth Industrial Court in Qantas Empire Airways Ltd. v Amalgamated Engineering Union, Australian Section and others.5 The decision of Harrison DP contemplated that there may be circumstances where the status quo provision could not be relied upon, stating:
“So far as a dispute about the operation of the status quo is concerned, such issue is not available without an issue of substance. The purpose of the disputes procedure and the invocation of the status quo is to allow resolution of the substantive dispute to occur without prejudice or with minimal prejudice to either party. The disputes procedure and insistence on the status quo cannot be used as an open ended mechanism for delay or obstruction of lawful and legitimate management initiative.” 6
[12] Silcar relied upon non-compliance by the AMWU with aspects of the dispute resolution procedure - the failure to fully identify to Silcar all relevant facts and issues - and inaction and delay in progressing the dispute - in failing to escalate the dispute to Mr Warren’s level in a timely way - which caused delay. Although it conceded that the actions of Mr Gurney and Mr Warren are not of the character of a deliberate flouting of the dispute resolution procedure process or bad faith on the part of the AMWU delegate Mr Gurney and organiser Mr Warren, 7 it submitted that such failures on the part of the AMWU caused prejudice to Silcar, and the AMWU ought not be allowed the benefit of the dispute resolution provision.
[13] The AMWU submitted that the evidence did not support a finding that the actions of the AMWU delegates and officers offended the dispute resolution procedure to the point where the status quo should be disturbed.
[14] There is no basis to conclude that the AMWU used the dispute and the dispute resolution procedures as an opened ended mechanism for delay or obstruction or a device to frustrate the changes proposed by Silcar. On the contrary, there exists a real dispute as to the application of clause 12 to the changes currently proposed. Silcar concedes that the AMWU officers have not flouted the dispute resolution procedure or acted in bad faith. The evidence discloses that the AMWU did not comply fully with the terms of the dispute resolution procedure - for example in not raising some relevant issues in a timely way. 8 In other respects, both parties failed to act in a way which would have expedited the progression of the dispute through the dispute resolution procedure. That is illustrated by the elevation of the dispute to the level of Mr Warren. Mr Gurney emailed Mr Wandmaker seeking to involve Mr Warren on 21 December 2010. The response did not address the request to escalate the dispute resolution procedure to involve Mr Warren. When Mr Gurney responded two days later he did not address his earlier request or the failure of Mr Wandmaker to respond to it. In hindsight, both parties could have acted more effectively to meet their responsibilities under the dispute resolution procedure to co-operate to ensure that the dispute resolution procedures are carried out as quickly as possible. Absences during the Christmas period further contributed to delay.
[15] Whilst AMWU representatives could and should have acted more promptly and with more precise adherence to the dispute resolution procedure, such a conclusion also applies to some degree to Silcar representatives. On the evidence as a whole, I find that the actions of the AMWU in progressing the dispute were not so deficient as to warrant interference in the status quo provision within the dispute resolution procedure. I accept that there is a prejudice to Silcar in that the operation of the status quo has the effect of delaying the implementation of the proposed arrangements from the intended date of 26 January 2011 and the skills rebalancing objective has been delayed. However, Silcar has contributed to some degree to that delay, the delay is minimal and there is no evidence of any adverse effect upon Silcar caused by that limited delay. There is no evidence of any prejudice to Silcar which is other than minimal.
[16] In all of those circumstances, I am not satisfied that the status quo provision within the dispute resolution procedure should be disturbed.
[17] I am satisfied that the agreement provision in clause 10 requires the maintenance of the status quo until the completion of the dispute resolution procedure, absent an order with the contrary effect by Fair Work Australia and there is no basis on the evidence for making such an order in the circumstances of this case.
[18] Accordingly, I find that the status quo provision operated and the failure by the four metal tradespersons to make the changes requested by Silcar is consistent with the maintenance of the status quo during the progression of the dispute through the dispute resolution procedure.
[19] I find that the action complained of in the s.418 application by Silcar is not industrial action. The s.418 application is dismissed.
[20] In light of this decision, it is not necessary to determine the issue about the application of clause 12 to the proposed changes for the purpose of the s.418 application, although it remains the issue in dispute in the s.739 matter.
The s.739 application
[21] Two issues arose in the context of the s.739 application, which concerned the dispute about the application of clause 12 of the Agreement to the changes now proposed by Silcar. Both concerned the final dot point in clause 12(b), which reads:
“In the event that Silcar requires changes to rosters Silcar will fully consult with affected employees and if requested, employee representatives, to reach agreement through the Consultative Committee. All endeavours will be made to mitigate against all adverse effects of changes that may be provided for within this clause. In the event that a dispute arises regarding the application of this clause, the parties will comply with disputes settlement procedures to resolve the issue, which includes the pre- dispute status quo remaining in effect.”
[22] The first issue is whether “changes to rosters” comprehends changes to the allocation of shift workers to particular crews within unchanged roster patterns, as argued by the AMWU, or whether it is limited in its application to changes in the shift patterns (starting/finishing times, shift periods and the like), as supported by Silcar.
[23] The second issue is whether the provision requires agreement by the Consultative Committee to roster changes before they can be given effect, constituting a power of veto in the hands of the Consultative Committee, with the application of the dispute resolution procedure in the final sentence being affected to implicitly limit the role of Fair Work Australia to conciliation functions, given the determinative role of the Consultative Committee. This position was advanced by the AMWU and opposed by Silcar. Silcar said the provision should be interpreted to mean that in the event it sought changes in rosters (of the type they submitted were comprehended by the provision) it was obliged to consult, with consultation directed to agreement at the Consultative Committee. It contended that in the event that there was no agreement at the Consultative Committee, the dispute resolution procedure in clause 10 would be applied, without qualification, with Fair Work Australia being authorised to conciliate and, if necessary, arbitrate.
[24] In relation to each issue, the wording of the final dot point in clause 12(b) of the Agreement is not clear, and may be of the nature described by Lord Wilberforce in Prenn v Simmonds: 9
“The words used may, and often do, represent a formula which means different things to each side, yet may be accepted because this is the only way to get ‘agreement’ and in the hope that disputes will not arise.”
[25] The AMWU handed up and relied upon a summation of authorities concerning the interpretation of industrial agreements. The relevance of those principles was not a matter of controversy in the proceedings before me and are accepted and applied.
Does “changes to rosters” comprehend the currently proposed changes?
[26] The AMWU relied on a dictionary definition of rosters to support its position, with rosters meaning “a list of persons or groups with their turns or periods of duty”. 10 That dictionary meaning supports the AMWU position, with changes in rosters, so defined, comprehending changes to either the persons allocated to a particular list (crew) and their turns or periods of duty, although it is not clear that it would apply to a change to some aspects of roster arrangements (payment arrangements, shift loadings and the like). I am not assisted by a general dictionary meaning, which is devoid of any industrial purpose or context or reference to the agreement as a whole.
[27] Silcar relied on the terms of an agreement reached by the parties in relation to changes in shift arrangements necessitated by the impact of the Global Financial Crisis in 2008. 11 The weight of authority supports the proposition that it is impermissible to have regard to subsequent conduct in respect of the interpretation of industrial instruments12in relation to award interpretation. I will not give weight to an agreement which arose out of negotiations, the content of which is not evident to me, in very unusual circumstances.
[28] The relevant provision in the final dot point in clause 12(b) first emerged in the BSL Western Port Maintenance Alliance Certified Agreement 2004 - 2007 (the 2004 Agreement). 13 The Agreement was struck in the context of the former employer, Blue Scope Steel (BSL), contracting out maintenance functions to a Maintenance Alliance between itself and Silcar. The 2004 Agreement applied to employees of Silcar, engaged in a Maintenance Alliance between Theiss and Seimens. The parties to the 2004 Agreement were Silcar - a joint venture between Theiss and Seimens - its employees and the AMWU.The clause dealing with shift work - clause 10 - Working Hours, Shift Work and RDOs - is in the same terms as the current clause 12, save that it is prefaced by the additional words “Upon mobilisation”, possibly reflecting the shift of maintenance responsibilities to the Maintenance Alliance.
[29] Although Mr Warren has had organising responsibility for the Silcar site since 2004, 14 his evidence shed no light on the purpose of these additional words in 2004 or their removal thereafter. Mr Warren’s evidence was simply that during the time when he had responsibility for the Silcar site, the shift change provision had always been in the Agreement and had been pursued by the AMWU.15
[30] The 2004 Agreement was replaced by the BSL Western Port Maintenance Alliance Agreement 2007 - 2010 (The 2007 First Agreement) 16 which applied to employees of Silcar, engaged in the Maintenance Alliance. The 2007 First Agreement was between Silcar - a joint venture between Theiss and Seimens - its employees and the AMWU. In clause 5, the parties recognised that employees would transmit to Silcar Pty Ltd during the course of the 2007 First Agreement. The 2007 First Agreement ceased when all employees had transmitted or when 31 March 2010 was reached, whichever came first. The clause dealing with shift work - clause 10 - Working Hours, Shift Work and RDOs - is in the same terms as the current clause 12.
[31] It appears that the transmission of all employees from the Maintenance Alliance to Silcar Pty Ltd occurred in 2004, causing the 2007 First Agreement to cease operation. A new Agreement was lodged with the Workplace Authority, also called the BSL Westernport Maintenance Alliance Agreement 2007 - 2010 (the 2007 Second Agreement). 17 Clause 3 of the 2007 Second Agreement is expressed to apply to Silcar employees engaged in the Maintenance Alliance. The parties to the 2007 Second Agreement are Silcar, its employees and the AMWU. It operated from when it was lodged until 31 March 2010 (clause 5). The clause dealing with shift work - clause 10 - Working Hours, Shift Work and RDOs - is in the same terms as the current clause 12.
[32] In terms of the history of the current Agreement, the witness statement of Mr Wandmaker 18 simply noted and attached the 2004 Agreement and the 2007 First Agreement.
[33] Mr Warren’s evidence is that the current clause 12 came up for question at each agreement negotiation, but particularly so in 2010, when Silcar sought to remove the status quo provision and the requirement for agreement to change by the Consultative Committee. 19 On this evidence, which I accept, the terms of clause 12 were contentious during the 2010 negotiations, although there is no evidence whether Silcar proposed changes to clause 12(b) as a negotiating tactic or a serious claim nor, if it was a serious claim, whether Silcar’s objective was to remove the requirement for agreement, operating with the effect it advances in this matter or operating on the basis argued for by the AMWU.
[34] The 2010 Agreement was approved on 4 October 2010. 20
[35] The language of an agreement must be construed in context, having regard to the subject matter and the wording of the entire agreement. 21
[36] A consideration of the word “roster”, where it appears in the Agreement, sheds little light on its meaning in the final dot point of clause 12(b). The word appears outside of clause 12 but an examination of its usage in other parts of clause 12(b) suggests it is used in a different sense and in a different context, with the particular usage being fairly plain. For example, its use in the first dot point - the current four-week cycle, continuous shift work roster for maintenance personnel “will continue, to provide direct support for production shifts” - is plainly directed to the shift work arrangement. It clearly concerns support for production shifts through the shift arrangement, rather than through the maintenance of particular employees in particular crews. Some matters concerning payment - for overtime worked beyond rostered hours, payment for work on public holidays - use the word “rosters” in the context of when a particular employee is rostered to work. An examination of the word “roster”, in isolation, suggests that it can have either of the meanings contended for, depending on its context.
[37] A reading of the final dot point in clause 12(b) in the context of the clause as a whole in my view supports the contention advanced by Silcar - that the provision concerning changes in rosters relates to changes in roster arrangements and patterns. The preamble is based on the continued operation of shift work for maintenance personnel on the basis of the shift patterns and payment arrangements there set out in the eight dot points preceding the final dot point. Clause 12(b) as a whole is directed to maintenance of current arrangements concerning shift patterns - the four week cycle, continuous shift work, 168 hours and payment arrangements for that shift work. The first eight dot points, in my view, establish the purpose and intent of clause 12(b) as seeking to maintain roster arrangements and patterns. They do not include a provision maintaining existing placements of employees on their current crew. Against that purpose and in that context, it is my view that the final dot point is best construed as a mechanism, with associated rights and obligations, which arise in the event that Silcar wishes to change the roster arrangements and patterns previously set out in clause 12(b). That interpretation is more logical in context than an interpretation which would additionally apply the final dot point to changes in the allocation of personnel onto particular roster crews, which is not a matter previously addressed in clause 12(b).
[38] I find that the final dot point in clause 12(b) does not apply to the circumstances of the changes in allocation of employees to crews A-D presently proposed by Silcar.
Does the Consultative Committee exercise a right of veto over changes to rosters?
[39] In light of my decision that clause 12 does not apply to changes of the type currently proposed, it is not necessary to decide which of the competing interpretations is to be preferred.
[40] It being unnecessary to do so, I will not determine the veto issue as it relates to a change in shift patterns of the type contemplated by clause 12 in circumstances where the evidence and submissions before me were made in the context of a change in the allocation of personnel to shifts, rather than changes in shift patterns.
SENIOR DEPUTY PRESIDENT
Appearances:
N Segbedzi on behalf of Silcar Pty Ltd.
B Terzic with B Gurney and G Warren on behalf of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).
Hearing details:
2011.
Melbourne:
January 31;
February 3.
1 AE881263 PR502336.
2 Transcript, at paras 614-616.
3 [2003] NSWIRComm 361.
4 [2008] AIRC 966, at para 78.
5 [1960] 4 FLR 173, at 177.
6 [2003] NSWIRComm 361, at para 48.
7 Transcript, at para 884.
8 For example in not raising issues of concern to Mr Thompson, an AMWU member, with management. See transcript, at paras 382-388.
9 [1971] 1 WLR 1381 HL, at 1385.
10 Exhibit AMWU2, extract from the Macquarie Dictionary, revised third edition.
11 Exhibit Silcar1, attachment LW3.
12 Marshall J in Australian Municipal, Administrative, Clerical and Services Union v The Treasurer of the Commonwealth of Australia & Ors [1998] FCA 249 (20 March 1998).
13 AG836012 PR950272.
14 Transcript, at para 578.
15 Transcript, at paras 582-584.
16 AC308187.
17 AC307922.
18 Exhibit Silcar1.
19 Transcript, at paras 585-586.
20 [2010] FWAA 7661.
21 Short v FW Hercus Pty Ltd [1993] FCA 51; (1993) 40 FCR 511 at 518.
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