The Australian Manufacturing Workers' Union, the Australian Rail, Tram and Bus Industry Union, and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of...
[2022] FWC 1320
•27 MAY 2022
| [2022] FWC 1320 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
The Australian Manufacturing Workers’ Union, the Australian Rail, Tram and Bus Industry Union, and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
KDR Victoria Pty Ltd
(C2022/3060; C2022/3108; C2022/3132)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 27 MAY 2022 |
Dispute arising under an enterprise agreement
This decision concerns three related applications that ask the Commission to deal with a dispute arising under the Yarra Trams Enterprise Agreement 2019 – Infrastructure (2019 Agreement). The dispute relates to a decision by KDR Victoria Pty Ltd, which trades as Yarra Trams, to implement new rosters. The applicant unions contend that Yarra Trams is precluded by clause 35 of the 2019 Agreement from implementing the new rosters until arrangements are in place for the averaging of wages for those rosters, and that by proceeding to implement the rosters over the unions’ objections the company has failed to abide by the status quo provision in the 2019 Agreement. I have concluded that these contentions must be rejected. There are in fact arrangements in place for the averaging of wages. They are found in an instrument known as the ‘comprehensive agreement’. Clause 35 does not prevent the introduction of new rosters. However, the company must implement the wage averaging arrangements in the comprehensive agreement. It appears that it has not done so in respect of previous rosters.
Given the urgency of the applications, which I heard yesterday, and the desirability of a determination before the scheduled commencement of the new rosters this Sunday, these reasons are necessarily brief.
On 23 May 2022, the Australian Manufacturing Workers’ Union (AMWU) lodged an application under s 739 of the Fair Work Act 2009 (FW Act) and the dispute resolution procedure in clause 12 of the 2019 Agreement. The application stated that Yarra Trams was proposing to introduce a new 36-hour week roster from 29 May 2022, and that pursuant to clause 35.1 of the 2019 Agreement, the parties had agreed to the implementation of a 36-hour week subject to a comprehensive agreement about the terms and conditions applicable to a 36-hour week. The application stated that the comprehensive agreement did not deal with the averaging of wages. As we will see, this is in fact not the case. The application further stated that clause 35.1(c) of the 2019 Agreement required pay averaging arrangements to be developed prior to the implementation of the 36-hour week. It stated that the union had raised a dispute, and that Yarra Trams had refused to abide by the status quo provision in clause 12 of the 2019 Agreement. The application sought a determination from the Commission that Yarra Trams refrain from implementing the new rosters ‘until all terms and conditions of implementation of a 36-hour week have been met’ and the company had ‘successfully executed pay averaging in the new rosters’ as per clause 35.1(c)(iv).
On 24 May 2022, the Australian Rail, Tram and Bus Industry Union (RTBU) lodged an application in substantially the same terms as the AMWU application. The difference between the concerns of the AMWU and the RTBU is that the new roster that will affect AMWU members from 29 May 2022 is a roster with a 30-week cycle based on a 36-hour week, whereas the rosters affecting RTBU members will be 6 and 8 week rosters based on a 36-hour week.
The AMWU requested an urgent listing of its application. I listed the AMWU and RTBU applications concurrently for a conciliation conference on 25 May 2022. The disputes were not resolved by conciliation. The AMWU and RTBU pressed their applications and asked that the Commission hear them prior to the commencement of the new rosters on 29 May 2022. I listed the applications for hearing at 1.00pm on 26 May 2022.
On the evening of 25 May 2022, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) lodged an application under s 739 in terms similar to those of the AMWU and RTBU. Like the other two applications, the CEPU application stated that the new roster did not meet the requirements of clause 35.1(c) of the 2019 Agreement, which required there to be a system for the averaging of wages. The CEPU application further contended that the proposed new rosters did not abide by the ‘roster design parameters’ set out in clause 35.2 of the 2019 Agreement. The new roster that affects members of the CEPU has already been introduced. The CEPU application seeks a determination that the new roster cease, and that the previous roster be restored until the dispute is resolved. I listed the CEPU application to be heard together with the AMWU and RTBU applications on 26 May 2022.
Provisions of the 2019 Agreement
The employees who are affected by the new rosters are covered by the 2019 Agreement, as are the AMWU, the RTBU and the CEPU. The dispute resolution provision in the 2019 Agreement is contained in clause 12, which states:
“12 Dispute Resolution Procedure
12.1 If a dispute relates to:
(a) a matter arising under this agreement;
(b) the National Employment Standards; or
(c) an industrial matter;
this clause sets out procedures to settle the dispute.
12.2 An employee who is a party to the dispute may appoint a representative (collectively referred to as the Representatives') at any time for the purposes of the procedures in this clause.
12.3 The matter shall be first submitted by the employee or employee representative (if any) to the supervising officer or another appropriate manager, or vice versa. The earliest possible notice should be given by one party to the other of any issue or problem which may give rise to a dispute.
12.4 The following procedure shall be adhered to in resolving matters under this clause. To resolve matters in dispute, discussions will take place at the earliest opportunity in the following sequence:
(a) in the first instance the employee/s and/or appointed representative concerned and their manager will attempt to resolve the dispute at the workplace level. If the discussions do not resolve the dispute; then
(b) the employees concerned and/or appointed representative and the relevant manager once removed will attempt to resolve the dispute. If these discussions do not resolve the dispute; then
(c) the employees concerned and/or appointed representative and the manager twice removed will attempt to resolve the dispute.
12.5 In trying to resolve the dispute, the parties will:
(a) act promptly and reasonably at all times;
(b) on request, clearly identify the facts and issues relevant to the dispute in writing and provide this information to the other parties to the dispute within 7 working days of the request (or a longer period as agreed between the parties acting reasonably); and
(c) allow up to seven working days for discussions to occur at each escalation point under clause 12.4 (or a longer period as is agreed between the parties acting reasonably).
12.6 If discussions at the workplace level do not resolve the dispute or it is unreasonable for the steps in clause 12.5 to be completed because of the urgency of the dispute, a party to the dispute may refer the matter to the Fair Work Commission.
12.7 The Fair Work Commission may deal with the dispute in 2 stages:
(a) The Fair Work Commission will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
(b) If the Fair Work Commission is unable to resolve the dispute at the first stage, Fair Work Commission may then arbitrate the dispute.
(c) The parties will abide by the Fair Work Commission arbitrated decision. The Arbitration decision and any outcome must be consistent with the Code for the Tendering and Performance of Building Work 2016. Note: If the Fair Work Commission arbitrates the dispute, it may also use the powers that are available to it under the Act. A decision that the Fair Work Commission makes when arbitrating a dispute is a decision for the purpose of Div 3 of Part 5.1 of the Act. Therefore, an appeal may be made against the decision.
12.8 While the parties are trying to resolve the dispute using the procedures in clause 12.4:
(a) As per status quo, for a period not exceeding 28 working days (or such other time as agreed in writing by the parties acting reasonably), work will continue in accordance with the arrangements that were in place immediately prior to the change that caused the dispute being notified under clause 12.3;
(b) subject to the period described in (a) above, an employee must perform his or her work including work which is the subject of any management initiated change as he or she is instructed to do by Yarra Trams unless he or she has a reasonable concern about an imminent risk to his or her health or safety; and
(c) an employee must comply with a direction given by Yarra Trams to perform other available work which the employee is competent to perform at the same workplace, or at another workplace, unless applicable occupational health and safety legislation would not permit the work to be performed.”
The substantive provision which is the focus of the three applications is clause 35, which concerns the implementation of a 36-hour week. Clause 35.1 reads as follows:
“35 36 Hour Week
35.1 The parties agree to the implementation of a 36 ordinary hour week subject to the following conditions:
(a) Subject to completion of the steps in clauses 35.1(b) and 35.1(c), all Classifications in the Agreement, other than those listed below, will move to a 36 ordinary hour week from the first full pay period on or after 1 July 2020.
This clause 33 [sic] does not apply to the following classifications whose hours of work will remain in accordance with clause 28:
(i)All Administrative Officer Classifications in clause 3.2 of Part 4.
(ii)All Senior Officer Classifications in clause 3.8 of Part 4.
(iii)All Professional Engineer Classifications in clause 3.9 of Part 4.
(b) The employer will consult with affected employees and their representatives about the implementation of a 36-hour week;
(c) The parties agree that a comprehensive agreement reflecting the terms and conditions associated with the 36-hour week will be developed prior to implementation. The parties agree that the following terms and conditions will be contained in that agreement:
(i)All work performed on Saturday (between midnight Friday and midnight Saturday) will be at paid double time (100% loading on the ordinary hourly rate).
(ii)A night shift loading of 30% is to be paid on any shift finishing after midnight and at or before 8am.
(iii)All overtime will be paid at double time.
(iv)Wages will be averaged weekly over a complete roster cycle and paid fortnightly.
(v)RDOs may be included in a particular working group 36-hour roster at Yarra Trams’ absolute discretion.
(vi)The treatment of and adjustments to annual leave, personal leave and PLDs which accrued prior to 1 July 2020.
(vii)Employees working a 36-hour week will no longer be entitled to ADOs or PLDs although PLDs which have accrued prior to 1 July 2020 will continue to be recognised and employees may apply for PLDs in accordance with the process which applied prior to implementation. Accrued PLDs which have not been used will be paid out on cessation of employment.
(viii)All leave, excluding annual leave, will be paid at the Employees base wage.
(ix)Annual Leave loading will be 17.5% or the average shift loading, whichever is higher.
(d) Proposed changes to regular rosters or ordinary hours of work after implementation will be subject to existing obligations in accordance with Clause 8 - Consultation.
For employees on a 36 hour week, the base hourly rate will be the weekly gross pay as at 1 July 2020 divided by 36. This rate will increase by the pay increases as at Schedule A of this Agreement.”
Clause 35.2 provides that the parties agree that the 36-hour week will be implemented using a process set out in that clause. Among other things, the clause establishes an implementation steering committee and local workgroups. Clause 35.2(c) provides that the company will set ‘roster design parameters’, which will include the matters set out in subclauses (i) to (viii) of that provision.
Contentions of the parties
The unions contended that the company’s new rosters are based on a 36-hour week, and that such rosters must therefore meet the requirements of clause 35. The parties had agreed to the implementation of a 36-hour week subject to the conditions in clause 35 being met. In particular, clause 35.1(c) states that the parties agree that ‘a comprehensive agreement reflecting the terms and conditions associated with the 36-hour week will be developed prior to implementation’, and that this agreement must contain certain conditions, including the following: ‘Wages will be averaged weekly over a complete roster cycle and paid fortnightly’ (clause 35.1(c)(iv)). The unions submitted that although a comprehensive agreement had been developed, there remained no concrete arrangements in place in relation to wage averaging, and that without such arrangements, the new rosters could not be implemented.
The CEPU’s application further contended that the new rosters did not meet the roster design parameters established by clause 35.2(c) of the 2019 Agreement, however the application did not indicate which of the various parameters in that provision had not been adhered to.
The essential concern of the unions is that, although the new rosters are based on a 36-hour week, the particular hours worked by employees from week to week will vary, and that in some weeks they will work more loaded hours, especially on weekends, such that there will be fluctuations in their pay from week to week. The purpose of averaging wages is to ensure that employees receive a regular and consistent income from week to week. The longer cycles of the new rosters give rise to the possibility of greater variability in income from week to week. The unions contend that the company must put in place wage averaging arrangements for the new rosters, as required by clause 35.1(c). These would level out the fluctuations and provide an average, consistent salary to employees who work the new rosters.
The unions submitted that the dispute between the parties about the company’s failure to comply with clauses 35.1 and 35.2 engaged the status quo provision in clause 12.8, and that Yarra Trams was obligated not to implement the new rosters until the dispute was resolved. In this regard, clause 12.8 states: ‘While the parties are trying to resolve the dispute using the procedures in clause 12.4: as per status quo, for a period not exceeding 28 working days … work will continue in accordance with the arrangements that were in place immediately prior to the change that caused the dispute being notified under clause 12.3.’ The unions contended that the existing rosters must remain until wage averaging arrangements are in place for the new rosters.
Yarra Trams contended that clause 35.1 has no application to the present circumstances, because the 36-hour week had already been implemented in relation to employees covered by the 2019 Agreement, and the comprehensive agreement contemplated by clause 35 was already in place. The comprehensive agreement was submitted to the Commission, both by the company and the CEPU. The document is clearly the agreement contemplated by clause 35.1(c) of the 2019 Agreement. Yarra Trams submitted that the employees who will be affected by the new rosters have been working a 36-hour week for some time and will continue to do so under the new rosters. It contended that clauses 35.1 and 35.2 were not concerned with the introduction of new rosters following the implementation of the 36-hour week and therefore did not prevent the new rosters from being implemented.
The company submitted that the unions had previously agreed to the implementation of the 36-hour week and were now raising objections based on clause 35 because they did not like the particular new rosters that were being introduced, and that in this sense their dispute was not genuine. The company further submitted that the status quo provision in clause 12.8 only has application ‘while the parties are trying to resolve the dispute using the procedures in clause 12.4’, which entails discussions at the workplace level, and that this step in the process had concluded. It further contended that the unions’ objections to the rosters had first been raised some time ago and that the 28-day period of operation of the status quo provision had in any event elapsed.
Consideration
I am satisfied that the Commission is empowered by clause 12 of the 2019 Agreement to arbitrate the disputes. The disputes in question are those set out in the F10 applications of the three unions. They are clearly disputes that relate to a matter or matters arising under the 2019 Agreement. The pre-conditions to arbitration prescribed by clauses 12.7(a) and (b) have been met: before proceeding to arbitrate, the Commission has first attempted to resolve the disputes by conciliation and has been unable to do so. At the commencement of the hearing, I noted that the CEPU application had not been the subject of conciliation before the Commission and asked the CEPU and the company whether there was any prospect of an agreed outcome. Based on what was said in response, I am satisfied that the Commission is unable to resolve the dispute between the CEPU and the company by the means contemplated by clause 12.7(a).
The question for determination in this matter is whether Yarra Trams is precluded by the 2019 Agreement from implementing its new rosters on Sunday 29 May 2022 and from continuing the roster affecting CEPU members. The answer to these questions requires consideration of the unions’ contentions that the new rosters do not meet the requirements of clause 35.1 of the 2019 Agreement because there are no arrangements in place for the averaging of wages in respect of the new rosters, and the CEPU’s contention that the new rosters do not meet the roster design parameters in clause 35.2. These are the disputed matters articulated in the unions’ F10 applications. The unions maintain that while these disputed matters remain unresolved, the company must observe the status quo.
I reject the contention that clause 35.1 precludes the company from introducing the new rosters. That clause facilitates 36-hour week rosters, subject to certain conditions. At this point in time, I am not persuaded that the company has failed to meet those conditions in relation to the new rosters.
Although clause 35.1 is concerned with the implementation of the 36-hour week, that does not mean that it ceases to be relevant to 36-hour rosters that are introduced after implementation. I agree with the unions that the evident purpose of the comprehensive agreement established pursuant to clause 35.1(c) is to regulate the terms and conditions of 36-hour rosters. In my opinion, the comprehensive agreement is binding on the parties through clause 35.1 of the 2019 Agreement.
The AMWU and the RTBU applications contended that the comprehensive agreement did not contain any provision for pay averaging, but this is not the case. Clause 5 of the comprehensive agreement addresses pay averaging in some detail. Clause 5.1 states that employees are to be paid a fortnightly wage comprising the employee’s base rate of pay for their ordinary hours of work, as well as applicable shift and weekend penalties. Clause 5.2 provides that the payments in clause 5.1 are to be averaged over a complete roster cycle and paid fortnightly, and that overtime and public holidays are paid separately and are not included in the average wage. Clause 5.3 states that a roster cycle is the period it takes for the rostered weekly hours of work to equalise the average weekly hours, and that the rostered hours of work may vary each week.
Clause 5 of the comprehensive agreement establishes a framework for the averaging of hours. It needs to be applied, or ‘translated’, to each particular roster. But that application does not need to be the subject of agreement. Nor does clause 5 state that the application of the averaging of hours to each particular roster must be articulated, or published, before that roster commences. In other words, the company does not need to explain how it will apply clause 5 to a particular roster before the roster commences. It simply needs to comply with the averaging arrangements in clause 5.
Clause 35.1 does not require the company to reach a comprehensive agreement or any other agreement about each new roster following the implementation of the 36-hour week. Rather, clause 35.1(d) states that ‘proposed changes to regular rosters or ordinary hours of work after implementation’ will be subject to the consultation requirements in clause 8. Once the 36-hour week has been implemented, the general consultation obligations apply to the introduction of new rosters. The unions’ applications did not contend that Yarra Trams had failed to meet its consultation obligations under clause 8 in respect of the new rosters.
It appears from various submissions made in the course of the hearing that the company has not implemented the wage averaging arrangements in clause 5 of the comprehensive agreement at all; that is, even in respect of the previous rosters that employees have been working since the implementation of the 36-hour week, the company has not applied the wage averaging framework in clause 5 of the comprehensive agreement. If this is the case, the company would appear to have breached the comprehensive agreement in respect of the previous rosters.
However, the present disputes concern the new rosters, not the old ones. The unions did not contend in their F10 applications that the company’s new rosters were contrary to the requirements of the comprehensive agreement. Perhaps this is what the drafters of the applications meant to say. The Commission should not adopt a narrow or pedantic approach to the characterisation of a dispute for the purposes of determining a matter referred to it under a dispute resolution procedure in an enterprise agreement. Equally, the respondent should only be required to meet the case that has been put against it. But in any event, the company has not failed to comply with clause 5 of the comprehensive agreement in respect of the new rosters. As noted above, that clause does not require the company to explain how it will apply clause 5 to a particular roster before the roster commences. It requires the company to average wages in accordance with the clause.
I note that the orders that are sought by the unions would temporarily halt the new rosters and restore the old ones. But that would not remedy a concern that employees would be working 36-hour rosters without any wage averaging being applied to their salary as required by clause 5 of the comprehensive agreement, because the company has not been applying the averaging arrangements to the previous rosters.
I will briefly address some of the remaining contentions. First, in respect of clause 35.2, as noted earlier, it has not been explained which of the roster design parameters is not reflected in the new rosters. Secondly, I reject the company’s contention that the disputes brought to the Commission through these applications lack genuineness on the basis that they are a means to oppose rosters of which the unions do not approve. I have no difficulty in accepting that the averaging of wages is a matter of importance to the unions’ members. As I understand the situation, employees and the unions were prepared to tolerate the absence of wage averaging on the previous 36-hour rosters, but are no longer content to do so, partly because the new roster cycles are longer than the old ones. That is not suggestive of any lack of genuineness. In any event, as senior counsel for the CEPU rightly contended, there is no basis for the Commission to inquire into the genuineness of a dispute that is brought to the Commission under clause 12 of the Agreement. Thirdly, given my disposition of the matter, and the constraints of time, I will not determine the company’s contentions concerning the expiry of the 28-day period in the status quo provision, or the significance of the reference in clause 12.8 to clause 12.4.
Conclusion
The disputes referred to the Commission concern whether the introduction of the new rosters is contrary to clauses 35.1 and 35.2 of the 2019 Agreement. I have concluded that the introduction of the new rosters in the present circumstances is not contrary to those provisions. At this point in time, I do not consider that the company has failed to meet the requirements of the comprehensive agreement in relation to the new rosters. Clause 5 does not require the wage averaging arrangements to be adapted to the new rosters or published before those rosters commence. The status quo provision is not engaged because I have determined the disputes that are set out in the F10 applications. Those applications are dismissed.
However, the company must apply the wage averaging arrangements in clause 5 of the comprehensive agreement to the new rosters. The wages of employees working on the new rosters must in fact be averaged in accordance with clause 5. While the company is not currently in contravention of clause 5 in respect of the new rosters, this will change if the averaging arrangements are not effectuated. If this does not occur, the unions may bring further disputes to the Commission or make applications to a court.
I understand that the parties are engaged in discussions in relation to the wage averaging arrangements for the new rosters. Should the parties seek the Commission’s assistance in this regard they may file an appropriate application and contact my chambers.
DEPUTY PRESIDENT
Appearances:
H. Borenstein Q.C. for the CEPU
A. Bonello for the AMWU
A. Swayn for the RTBU
L. Drummond for Yarra Trams
Hearing details:
2022
Melbourne
26 May
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