Sue Short v Tenneco
[2010] FWA 1045
•17 FEBRUARY 2010
[2010] FWA 1045 |
|
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
v
Tenneco
(C2009/10980)
SENIOR DEPUTY PRESIDENT O'CALLAGHAN | ADELAIDE, 17 FEBRUARY 2010 |
Application to deal with a dispute.
[1] On 16 November 2009 the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) sought the assistance of Fair Work Australia in the resolution of a dispute involving a member, Ms Short, who is an employee of Walker Australia Pty Ltd (Walker). For these purposes there is no dispute that Tenneco and Walker represent the same entity. The application was made pursuant to section 739 of the Fair Work Act 2009 (the Act) on the basis of the dispute resolution procedures contained within the Walker Australia Pty Ltd Continuous Improvement Workplace Agreement 2007-2010 (the Agreement). Clause 17 of this Agreement establishes the authority for the Australian Industrial Relations Commission to conciliate a matter or to arbitrate a continuing dispute. In this instance, the parties agreed that they had exhausted the negotiation and conciliation process and now sort that Fair Work Australia, as the successor to the Australian Industrial Relations Commission, determine the matter.
[2] The background to the matter in dispute is simply set out. Ms Short worked in a production function with Walker until 2007. She was classified at the C11 level under the Agreement. In early 2007 she successfully applied for a day shift non-production stores function. There was no letter of appointment given to her to confirm this employment function but a "Change in Status Form" was completed to acknowledge her transfer to this non-production stores function. Ms Short advises that when she commenced in the stores function she was told that she may be reclassified but that this had not happened.
[3] As a result of the economic downturn, Walker reviewed its non-production functions in 2009 and concluded that it no longer required two employees to be engaged in the day shift non-production stores function. As a result, Ms Short was required to return to the production function, again at the C11 classification level. Walker have advised that this change would be indefinite depending on any return to the pre-2009 production demand levels.
[4] Walker agrees that the capacity for a classification change for Ms Short in the production area is minimal as her C11 classification is consistent with the function she would be asked to undertake.
[5] Ms Short and the AMWU argue that Walker does not have the capacity to transfer Ms Short on this basis. Whilst the matter has been disputed, Ms Short has continued to work in the day shift non-production stores function under the status quo provisions of the Agreement.
[6] The Agreement is a stand-alone employment arrangement in that it is not read in concert with an award. Clause 14 of the Agreement states:
“14. EMPLOYER AND EMPLOYEE DUTIES
14.1 The Employer may direct an employee to carry out any duties which are within the limits of the employee’s skills, competence and training consistent with the classification structure of this Agreement provided that such duties are not designed to promote de-skilling.
14.2 The Employer may direct an employee to carry out such duties and use such tools and equipment as may be required provided that the employee has been properly trained in the issue of such tools and equipment.
14.3 Any direction issued by an Employer under this clause must be consistent with the Employer’s responsibility to provide a safe and healthy working environment.”
[7] The issue which I have been asked to determine goes to whether Walker is able to require that Ms Short return to production work.
Findings
[8] I note that the Agreement classification structure generally reflects the traditional structure in the Metals, Engineering and Associated Industries Award 1998 and adopts the National Metal and Engineering Competency Standards Implementation Guide as the basis for employee classifications.
[9] On the material before me, the work done by Ms Short in the stores function falls within the C11 classification. There is nothing to indicate that Ms Short has successfully demonstrated that her current work function warrants the higher C10 classification. Hence a change to production work does not involve a diminution in classification for Ms Short. I am unable to regard the vague indication of a classification review as anything other than just that.
[10] There is nothing to indicate that Ms Short was appointed to the day shift non-production stores function on the basis of a documented employment contract. Rather, the internal departmental transfer form appears to reflect an indefinite reallocation of duties and functions on the part of Walker.
[11] Clause 47 of the Agreement details the Walker redundancy obligations and defines redundancy in the following terms:
“Redundancy occurs where an Employer has made a definite decision that the Employer no longer wishes the job the employee has been doing done by anyone and that decision leads to the termination of employment of the employee, except where this is due to the ordinary and customary turnover of labour.”
[12] Consequently, if Walker is not entitled to direct Ms Short to undertake production duties, she may presumably qualify for redundancy.
[13] In considering the extent to which Walker has the right to require Ms Short to return to production work, I have reviewed the approach taken to comparable situations in a range of other matters.
[14] In Soh v University of Sydney 1 Cargill C concluded that the employer had the right to transfer an employee to another position, provided it was commensurate with the skills and abilities and was within a location within reason.
[15] In Austal Ships v Schreier 2 a Full Bench of the Australian Industrial Relations Commission reviewed a range of decisions relative to an unfair dismissal application and observed that an employee is obliged to follow directions which are both lawful and reasonable.
[16] In Miller v University of NSW 3 a Full Bench of the Australian Industrial Relations Commission also considered the extent to which an instruction to undertake different duties should be regarded as a lawful and reasonable direction by taking account of the contractual basis for the employee's employment and the extent to which the alternative duties were consistent with that contractual basis.
[17] In Ms Short’s circumstances I have concluded that she is an employee, classified at the C11 level who, pursuant to clause 14, may, at the Walker discretion, be directed to undertake any duties within her skills, confidence and training, provided that these duties are not directed at de-skilling. I cannot conclude that Ms Short was engaged under a contract of employment which established that she could only perform non-production stores work. Whilst it is true that Ms Short applied to work in that position, there is no evidence that she was, at that time, engaged under a specific contract to that effect which would override the general Agreement provisions.
[18] In this context, the instruction that Ms Short return to the production function is a lawful request. It is provided for by virtue of the terms of the Agreement.
[19] The request must also be regarded as reasonable in that as Walker seek to continue to operate a productive, efficient and effective manufacturing facility consistent with the objectives of the Agreement specified at clause 10, it must have the capacity to direct employees to work in various roles within their ability. The alternative is that Walker would need to make employees redundant in situations where they could continue to be productively employed albeit in different roles.
[20] With respect to the redundancy definition in clause 47, it may be the case that Walker no longer wishes the job which Ms Short has been doing, to be done by anyone, but in this situation the capacity to engage Ms Short in suitable alternative duties means that the change to the non-production stores function does not necessarily lead to the termination of Ms Short’s employment.
[21] Had Ms Short been classified at a higher level than C11, her transfer back to the C11 production function may have been substantially more problematic.
[22] If it had been established that Ms Short was appointed specifically, and exclusively to the non-production stores function as distinct from a transfer, my conclusion may also have been different.
[23] However, in these circumstances I consider that Walker is able to require Ms Short to return to work in the production function provided any necessary notice requirements are met.
SENIOR DEPUTY PRESIDENT
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