The Australian Workers' Union v Lend Lease Services Pty Ltd

[2016] FWC 1848

[2016] FWC 1848

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

The Australian Workers’ Union
v
Lend Lease Services Pty Ltd
(C2015/8053)

Building, metal and civil construction industries
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 24 MARCH 2016

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

[1] The Australian Workers’ Union and Lend Lease Services Pty Ltd are in dispute over the proposed new standby roster. The AWU and Lend Lease are parties to and bound by the Lend Lease – Services – South East Water Civil Maintenance Enterprise Agreement 2014.

[2] There is no dispute that the dispute resolution procedure at clause 29 provides for the arbitration of disputes by the Fair Work Commission. It is not disputed that the necessary steps of the dispute resolution procedure have been complied with and the Commission has the jurisdiction to resolve the dispute.

[3] The Agreement applies to work performed by Lend Lease under its contract with South East Water.

[4] Employees are required to be on standby.

[5] Clause 19 provides for standby as follows:

“19.1 Standby Allowance

19.1.1 Standby duties shall be undertaken by employees who shall be rostered as required for one week duration at a time. Subject to sub-clause 19.3, employees will be required to be available and in readiness to perform Standby duties.

19.1.2 For the purposes of this Clause, seven (7) continuous days shall constitute a week.

19.1.3 In addition to the 38 ordinary hours worked on standby, 2.75 hours each week shall be worked and accrued as an entitlement towards a rostered day off to enable employees to accrue a maximum of 18 days per year.

19.2 Call Outs while on Standby

19.2.1 An employee, who is in receipt of a Standby Allowance and who is recalled to work in an emergency after the expiration of their customary working time and after they have left work for the day, shall be paid for a minimum of three (3) hours' work for the first Call Out and for a minimum of one (1) hours' work for each subsequent Call Out.

19.2.2 Provided that where an employee is recalled to work after 6.00 am on a normal working day and such work continues through to the employee's customary starting time, no minimum Call Out payment shall apply. Employees recalled to work on this basis will be paid at the appropriate overtime rate until the commencement of the normal shift will be allowed to leave work after the completion of a 7.6 hour shift.

19.3 Standby Call Out on Public Holidays

An employee called out whilst rostered on duty on a public holiday outside of normal day working hours (e.g. 6.00am to 6.00pm) shall be paid at the rate of double time and a half.

19.4 Standby Roster and Allowance

A 'guaranteed response' via the call out system is necessary to meet our service commitment to our Client outside of normal working hours.

A standby roster covering 12 months in advance will be compiled by the relevant Lend Lease Operations Managers who will ensure that a copy of the roster is available to employees covered by this Agreement. The parties will use their best endeavours to develop a roster that provides fair and equitable rotation amongst the employees covered by this Agreement and any grievances shall be resolved through the Consultative Committee.

19.4.1 Standby Allowance has been included in the per annum aggregate rate of pay for employees that commenced after 1 July 2013. The rates for all employees’ standby allowances are identified in Appendix B. For employees that commenced after 1 July 2013 the standby allowance compensates for nine (9) periods of Standby duty (each a one week duration)

Should an employee not complete nine (9) periods of Standby duty within the relevant annual period, additional periods as necessary shall be undertaken within a reasonable time or appropriate adjustments made to the employee's rate of pay to ensure equity.

Any additional periods beyond nine (9) per annum undertaken by an employee, will be paid as per incidence in accordance with Table 5 in Appendix B, if they complete a full week or pro rata per day where a full week is not completed.

19.4.2 All employees, without exception, will be required to present themselves for Standby duties. If, in the event that an employee is unable to fulfil his/her standby duties, it is the sole responsibility of the employee to follow the company procedures and arrange a suitable swap or stand in to complete the Standby Duty.

19.4.3 The application of Standby Rosters and the Application of this subclause shall be monitored by the Consultative Committee.

19.4.3 Employees that commenced on or before 1 July 2013 shall receive a Standby Allowance in accordance with the rates identified in Table 4 in Appendix B for each completed full week or pro rata per day where a full week is not completed.”

[6] Clause 16 provides for rostered days off and relevantly provides at subparagraph 16.1.5 as follows:

“Employees will take one RDO at the end of each standby period. Of the remaining RDO, the balance will be banked or taken at the employee's request with one month's notice.”

[7] Clause 22 provides for rest periods of employees on call as follows:

“22.1 When an employee, rostered for 'Call Out' on normal weekdays, works overtime, ten (10) consecutive hour's rest period is to be taken from the completion of ordinary time duty without loss of pay for ordinary time occurring during such absence.

22.2 To ensure the safety and well-being of employees, no employee should be required to work any period greater than 16 continuous hours inclusive of relevant breaks. It is agreed that where a repair has been undertaken that the crew involved will ensure its completion, if necessary beyond the completion of the 16 hour period.

22.3 The onus rests with supervisors and employees alike to ensure that the safety and wellbeing of the employee, fellow employees, the public and property are not compromised by incidents that may arise through fatigue. Further, it is the responsibility of both parties to ensure that where possible that another crew be made available to relieve the existing crew at the completion 16 hours having due regard for the work in hand.”

[8] Prior to the making of the Agreement, employees on afternoon shift were rostered to work until 11pm and be on call from 11pm to 7.15am. This standby roster applied for a week which ran from Thursday at 11pm until the following Thursday at 7.15am. If the employee had not been called out on the last Wednesday night the employee is rostered to commence work at 9am on the Thursday morning to provide for the required ten hour break. The employee works through until 3.15pm. 1 The commencing time on the next shift will depend on the time the employee finishes work that evening. The employee still receives a full day’s pay. The employee then takes a rostered day off on the Friday.

[9] Lend Lease proposed to alter the roster so that the roster runs Friday to Thursday. The employee’s rostered day off is on the Friday. The AWU objects to this proposal.

AWU’s evidence and submissions

[10] Mr Robert Hart, an employee of Lend Lease, gave evidence. 2 He had worked on the South East Water contact for 12 years for various contractors. It was his evidence that RDO’s had always been taken as described in paragraph [8] above.3 When Lend Lease became the contractor no enterprise agreement applied to the work. He said that during the negotiations for the agreement a claim was made for the RDO to be taken after the employees came off standby.4 It was his evidence that Lend Lease proposed the wording “from the agreement that covered Lend Lease on the Yarra Valley Water contract, because the standby and RDO rostering arrangements worked the same way – employees were on standby from Thursday night to Thursday the following week, and took an RDO on the Friday after they came off standby.” On that basis the clause was agreed to.5

[11] Mr Mark Hutchison, an employee of Lend Lease, had worked on the Yarra Valley Water contract for Lend Lease and other contractors for 12 years. It was his evidence that the standby rosters were worked as described in paragraph [8] above. It was his evidence that each of the agreements provided for the RDO to be taken at the end of the standby period. 6

[12] The AWU submitted that the issue to be determined is what is meant by the expression “at the end of the standby period.”

[13] The AWU submitted that on the ordinary meaning of the words in clause 19, an employee’s standby period commences at 11pm on Thursday and it concludes at 11pm the following Thursday. This is because it submitted that a day is any 24 hour period. The employee’s next rostered work day would commence at 7.15am on the following Friday. As a consequence it submits the RDO must be taken on the Friday. Under the proposed roster it submits that the employee’s standby period commences at 11pm on Friday and continues for seven days and therefore does not end until 11pm the following Friday. Hence it submits on that basis the RDO must be taken on the Monday.

[14] Further, the AWU submits that the evidence established that Lend Lease or a related company had the Yarra Valley Water contract from 2003-2014 and during this time it had collective agreements with its employees and in that time the rostering of standby at Yarra Valley Water was as described at paragraph [8] above.

[15] It was put that the clause currently in dispute was taken from the Lend Lease Yarra Valley Water contract agreements and therefore “in light of the extensive industrial history of subclause 16.1.5 and its consistent operation in the manner contended by the AWU under other agreements, the AWU submits that it can and should be inferred that the term was intended to operate in the same manner.” 7

[16] Further, the AWU submitted that the interpretation proposed by Lend Lease was unjust and unreasonable “because it would have the effect of absorbing the ten hour break without loss of pay to which an employee is entitled under clause 22 of the Agreement in some instances where the employee is called out on the night before the RDO.” 8

[17] The AWU submitted that if the roster, as proposed by Lend Lease, was implemented and the employees did not get a 10 hour break, then any deduction from the employee’s RDO balance should be limited to the period the employee is not entitled to be absent from work pursuant to clause 22. I presume this means that if an employee finished work at 1am and would ordinarily be rostered to commence work at 7am but for the RDO then four hours would not be deducted from the RDO balance.

Lend Lease’s evidence and submissions

[18] Mr Andre Hoani Te Moananui, the Operations Manager, gave evidence that he was involved in the negotiations for the Agreement. He said it had been agreed that the wording of clause 19.1.2 would be changed “to ensure that the standby week was not fixed.” 9 When negotiations recommenced in 2015 he was not part of the negotiation meetings.

[19] In September 2015 the current published shift/standby rosters were due to expire and Mr Te Moananui drafted a proposed roster and invited Mr Graham Renfree and Mr Hart to view the draft and he explained the reasons behind the changes. On that proposed roster the standby week concluded on Friday at 7.15 am and the RDO was rostered on the Friday. 10 Mr Te Moananui commenced a communication process with the workforce and on 4 November 2015 it was discussed at a consultative committee meeting.11

[20] Mr Peter Judge, the Contract Manager for South East Water Project, gave evidence 12 that he was involved in negotiations for the Agreement in 2015.13 Nothing in the minutes of the meetings went to the issue of the timing of the RDO.

[21] Mr Judge gave evidence that the roster proposed by Lend Lease would see the standby roster commence on Friday and with standby duties concluding just prior to the commencement of the day shift on the Friday morning. The RDO would then be taken at the end of the standby period and this is consistent with the Agreement. 14 Mr Hart gave evidence about the consultation process about the new roster.

Consideration

[22] I do not consider that clause 19 is ambiguous. I agree that the question to be determined is when is the end of the standby period.

[23] I do not accept the submissions of the AWU that if the standby roster commences at 11pm on a Thursday that it ends at 11pm on the following Thursday. It is clear that if an employee is on a standby roster which goes from 11pm to 7.15am then the standby period which commences at 11pm on Thursday ends at 7.15am the following Thursday. The current practice of the employee then commencing day shift on the Thursday and taking the RDO on the Friday is not consistent with the Agreement which requires the employees take their RDO at the end of the standby period.

[24] I accept the submission of Lend Lease that if the standby period runs from Friday at 11pm then it ends at 7.15am on the following Friday then employees are required by the terms of the Agreement to take their RDO at this time.

[25] I accept the real concerns of the employees that they will lose the value of the 10 hour break if they are in fact called out on that last night of the standby period. However the requirement to have a ten hour break only arises if the employee is required to work ordinary time without such a break. As there is no requirement to work ordinary hours on the Friday, a ten hour break is not mandated. The employees are in the same position as a day worker who works overtime before an RDO. If that worker normally finished work at 4pm having commenced ordinary hours of work at 7am, but worked a 16 hour day as permitted under the Agreement, as they were not rostered to work ordinary hours on the RDO the worker would not be entitled to a ten hour break or any monetary compensation.

Conclusion

[26] I therefore find that the proposed roster is not inconsistent with the Agreement. There was no contention before me that but for the resolution of this dispute there was any other barrier to the implementation of the roster.

DEPUTY PRESIDENT

Appearances:

K. Wakefield for the Applicant.

A. Dalton for the Respondent.

Hearing details:

2016.

Melbourne:

March 7.

 1   I note in the submission of Lend Lease they say at 32(b) the day shift normal hours end at 4pm and at 32(j) the day shift ends at 3.15pm. For the purpose of this decision it is not necessary to resolve this contradiction.

 2   Exhibit A1

 3   Ibid at [4]

 4   Ibid at [10]

 5   Ibid at [11]-[12]

 6   Ibid at [3]

 7   Submissions of the AWU at 5.2(j)

 8   Ibid at 6.1

 9   Exhibit R1 at [9]

 10   Ibid at [12]-[13]

 11   Ibid at [14]-[15]

 12   Exhibit R2

 13   Ibid at [5]

 14   Ibid at [20]

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