The Australian Workers' Union v SSX Services Pty Limited T/A InfraBuild Steel Laverton Steel Mill

Case •

[2024] FWC 2279

•

26 AUGUST 2024
[2024] FWC 2279

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.739—Dispute resolution

The Australian Workers’ Union
v

SSX Services Pty Limited T/A InfraBuild Steel Laverton Steel Mill

(C2023/7612)

COMMISSIONER TRAN

MELBOURNE, 26 AUGUST 2024

Application to deal with a dispute under an enterprise agreement – roster changes – model consultation term – agreement consultation clauses - consultation

  1. On 7 December 2023, the Australian Workers Union (the AWU or Union) applied for the Fair Work Commission to deal with a dispute under s 739 of the Fair Work Act 2009 (the Act) and in accordance with Clause 20 of the InfraBuild Steel Laverton Steel Mill Enterprise Agreement 2021-2025 (the Agreement).

  1. The respondent is SSX Services Pty Limited (InfraBuild).

  1. The dispute is about whether InfraBuild can introduce changes to the shift rosters. InfraBuild wanted to re-introduce a controversial roster pattern, known as the Split 3-4 shift Roster. Long standing employees who had worked this roster pattern – in the 1990s – attested to the depth of feeling about how unworkable the roster was, because it caused conflict, affected morale and had workers doing effectively the same job on different rates of pay. The Union and employees said that productivity and the ability to organise training was also affected by the roster pattern. InfraBuild had successive rounds of discussions – in 2010, 2013, and 2017 – with the Union and employees to address staffing levels and roster changes, at times reaching agreement but never re-introducing the split roster pattern.

  1. In February 2023, InfraBuild attempted to re-introduce the split roster pattern but did not proceed due to employees’ resistance. But in November 2023, without securing agreement of employees and the Union, Infrabuild implemented the split roster pattern by giving notice. The Union contends that InfraBuild was not able to do so.

  1. The parties agreed that the dispute would be resolved if the Commission answered the following question:

“On 27 November 2023, InfraBuild gave its employees in the warehouse of its Laverton steel mill notice pursuant to paragraph 40.2(e) (the Notice) of the Laverton Steel Mill Enterprise Agreement 2021 – 2025 (the Agreement) that it would implement changes to their shift rosters, effective 8 January 2024 (the Roster Changes).

Was it open to InfraBuild under the Agreement to give the Notice and implement the Roster Changes?”

  1. I first outline the Agreement and the dispute. I next consider whether I have jurisdiction to deal with the dispute, finding that I can deal with the dispute. I then consider what ‘consultation’ is under the terms of the Agreement. Last, I ask whether InfraBuild complied with its obligations, which I find that it did. So, I answer the above question – yes. My reasons follow.

The Agreement

  1. The Agreement is the InfraBuild Steel Laverton Steel Mill Enterprise Agreement 2021-2025.

  1. It was initially approved on 4 October 2021.[1] When it was approved, the model consultation term was taken to be a term of the Agreement in accordance with s 205 of the Act. InfraBuild also provided undertakings that included that non-union representatives could represent employees in the Dispute Settling Procedure. The Agreement began to operate from 11 October 2021 and its nominal expiry date is 3 October 2025.

  1. The Agreement was then varied on 19 October 2022.[2] The variation inserted Appendix C – Supplementary Consultation Process and amended the table of contents to include reference to new Appendix C. The undertakings that formed part of the 2021 approval also formed part of the Agreement as varied. There were no other variations. The varied Agreement began to operate from 19 October 2022 and its nominal expiry date remained as 3 October 2025.

  1. The clauses of the Agreement that are relevant to this dispute are:

·   Clause 20 – Dispute Settling Procedure (subject to an undertaking)

·   Clause 14 – Facilitation of Change

·   Clause 15 – Consultation with Employees and Union Representatives

·   Clause 40.2 – Shift Workers – General Provisions

·   Clause 40.5 – Consultation about changes to rosters or hours of work

·   Appendix C – Supplementary Consultation Process

  1. The relevant clauses are appended to this decision.

Background Facts

  1. On 24 October 2023, InfraBuild (through Daniel Renehan, HR Business Partner) invited employees and the Union to a meeting to discuss “Warehouse crane assessment report and other Warehouse matters.” Mr Renehan also spoke with Warren Barclay, warehouse team leader, and Mr Dave Swan, AWU Organiser prior to the meeting. It was clear that everyone was aware that the meeting would be about the re-introduction of the Split 3-4 shift Roster.

  1. The meeting was held on 1 November 2023. Mr Renehan and Alan Tiley, Warehouse Logistics and Superintendent attended on behalf of InfraBuild. The parties’ evidence is agreed that Dave Swan, AWU Organiser, attended by telephone, and that at least the following employees or delegates were also present:

·   Mr Andrew Axford, warehouse operator and AWU delegate;

·   Mr Warren Barclay, warehouse team leader and acting AWU delegate;

·   Mr Dave Francis, warehouse operator and health and safety representative;

·   Mr Steve Bardinski, warehouse operator and shift delegate;

  1. Mr Axford also says that the Mr Andrew Krizmanic, warehouse operator and health and safety representative, and Mr John Mihald, warehouse leading hand, attended the meeting on 1 November 2023.

  1. At the 1 November meeting, InfraBuild said that it intended to implement the roster change, and also discussed a risk assessment related to increasing crane driving hours (a proposal that was dropped after consultation). Employees and the Union raised their concerns about the proposals, particularly about how unworkable the split roster pattern was.

  1. On 3 November, Mr Renehan emailed the warehouse operators explaining the proposed roster change and the upcoming meeting with the Union.

  1. The Union then met with its delegates and other employees on 8 November 2023 to discuss InfraBuild’s proposal.

  1. On 16 November 2023, the company’s regular consultative committee meeting occurred. The split roster pattern was not on the agenda for this meeting, but the changes were briefly discussed at the end of the meeting.

  1. On 21 November 2023, the parties again met to discuss the warehouse changes.

  1. On 27 November 2023, InfraBuild gave notice of the roster change in the warehouse.

  1. Mr Swan then emailed Mr Renehan to ask if he agreed that they had followed the Agreement’s Dispute Settling Procedure in relation to proposed roster changes. Mr Renehan replied that “we are satisfied that we have worked through these as well” and that the company had followed the consultation and agreement process correctly, entitling it to give notice of the roster changes under Clause 40.2 of the Agreement.

  1. Employees began to work the split roster pattern in January 2024. In around April 2024, the split roster ceased as all warehouse operators were moved to a 3-shift roster pattern.

Progress of the Dispute

  1. I conducted conferences in this matter on 22 January and 15 February 2024 but was unable to assist the parties to resolve the dispute. I then issued directions and materials, including submissions, witness statements, relevant documents and case authorities, were filed in compliance with those directions. I heard the matter over 2 days on 13 and 15 May 2024 and heard evidence on behalf of the Union from:

·   Mr David Swan, AWU Lead Organiser

·   Mr Andrew Axford, warehouse operator and AWU delegate

·   Mr Warren Barclay, warehouse team leader and acting AWU delegate; and

·   Mr Paul Reid, warehouse team leader and senior AWU delegate.

  1. Evidence on behalf of InfraBuild was heard from:

·   Mr Daniel Renehan, HR Business Partner; and

·   Mr Hercules Van der Merwe, Head of Victorian Bar and Rod Manufacturing; and

·   Mr Alan Tiley, Logistics and Reprocessing Superintendent at the time this dispute relates to.

  1. I also accepted into evidence the written witness statement of Mr Stuart Gordon.

Jurisdiction

  1. Section 595 of the Act provides for the Commission’s power to deal with disputes only if it is expressly authorised to do so or in accordance with another provision of the Act. Section 739 provides for the Commission’s power to deal with a dispute where an enterprise agreement includes a term that provides a procedure for dealing with disputes under s 738(b).

  1. I am satisfied that the Commission does have jurisdiction to deal with this dispute, including by arbitration, in accordance with s 739 and the Dispute Settling Procedure at clause 20, as it was sufficiently raised and discussed among appropriate representatives throughout November 2023 but could not be resolved.

  1. InfraBuild’s contends that there was no formal notification of a dispute and that all meetings between the parties were consultation meetings, and not attempts to resolve a notified dispute. But the Agreement’s Disputes Settling Procedure at Clause 20 does not require notification of a dispute. The Procedure lacks formality.

  1. The Agreement provides at Clause 20(d) that either party may refer ‘the matter in dispute’ to the Commission for conciliation and arbitration “should all steps in this disputes resolution procedure fail to resolve the matter in dispute.” There are 3 steps prior.

  1. The first involves attempts to resolve the dispute between employees and management at the Mill; the second involves “the appropriate Union delegate and an appropriate Company representative” to assist in resolving the dispute; and the last, involves “the appropriate Union official and Company representative.” The third and final step provides that senior Union officials and management may meet, but the language – ‘may’, ‘as required’ – clearly expresses that this is not mandatory. Clause 20(d) is also subject to an undertaking, in which the clause will not be applied to restrict representation to only union officials but provides for a person to be represented by a person of their choice.

  1. The ordinary meaning of the words of the clause, within its industrial context,[3] demonstrates a broadly pragmatic approach to dispute resolution. The Procedure refers only to ‘issues in dispute’, with next steps being taken where the ‘issues’ remain unresolved. Parties ‘assist’ in resolving the dispute but meetings may not necessarily be required as part of the resolution steps.

  1. The steps in the Dispute Settling Procedure show an escalation – attempts to resolve between employees and management at the Mill, then between the appropriate Union delegate and the appropriate company representative and finally between the appropriate Union official and company representative. ‘Appropriate’ in this context must mean no more than a person chosen by either party to deal with the matter. It would defeat the purpose of a dispute resolution process if one party could say that the person with whom discussions were had and who was purporting to represent a party during discussions could say they were not the appropriate representative to have those discussions with or that the other party’s representative was not the appropriate representative. It must be the case that the parties themselves determine who is the appropriate person responsible for representing them at each step.

  1. InfraBuild submit that ‘appropriate’ must also be construed to mean someone other than the person representing a party at an earlier step in the process, so that someone objective or more removed can be involved to try to resolve the dispute. While this has practical force, it may not operate where, as here, there could not be any escalation because a Union official (AWU Organiser, Dave Swan), Union delegates and employees were involved in all meetings from the commencement, and so too Company representatives – mill management (Mr Alan Tiley, Warehouse Superintendent) and central management (Mr Dan Renehan, HR Business Partner).

  1. InfraBuild submitted that, if there was a dispute it should have been escalated to Mr Hercules Van der Merwe, Head of Victorian Bar and Rod Manufacturing. However, Mr Van der Merwe’s own evidence is that he does not get involved in discussions to resolve disputes. Mr Van der Merwe and Mr Renehan’s evidence, taken together, indicate that Mr Renehan was the appropriate company representative with whom to try to resolve disputes.

  1. I also do not consider the lack of escalation fatal to the Commission’s jurisdiction because there could be no further escalation of the dispute. It would be nonsensical if, where each type of representative (for workers themselves, delegates or union officials or other employee representative as required in the undertaking, and for the company, mill management and ‘Company representative’) was involved in discussions from the commencement of the dispute, that dispute could then not be referred to the Commission where it remained unresolved.

  1. The Union’s evidence is that from as early as 1 November 2024, Mr Swan stated that the proposed roster changes were in dispute. At least 4 employees attended that meeting, including 2 delegates (Mr Axford and Mr Barclay) who gave evidence. Mr Swan, a Union official, attended the meeting by telephone. At the meeting, the employer was represented by Mr Renehan and Mr Tiley, who also both gave evidence. InfraBuild’s evidence is that neither Mr Renehan nor Mr Tiley heard Mr Swan say that the matter was in dispute; but Mr Axford, an operator and AWU delegate, says that he did.

  1. But as stated above, I do not consider that the Dispute Settling Procedure requires the formal notification of a dispute.

  1. The evidence from the Union and InfraBuild about what was discussed at that first meeting establishes that employees and the Union informed InfraBuild that they did not agree to the change, and further that there was disagreement about the operation of the Agreement in relation to the change. The evidence of all who attended the meeting (bar one witness - WHO) indicates that Mr Renehan referred to the Agreement allowing InfraBuild to implement the change on notice. Mr Swan gave evidence that he insisted that Infrabuild consult properly in line with the Agreement, and the need for an agreed implementation plan. The evidence of Mr Axford and Mr Tiley confirms Mr Swan’s evidence.

  1. I am of the view that this sufficiently raised an issue in dispute between the parties – that InfraBuild was not consulting as required by the Agreement. This then continued to be discussed in attempts to resolve the dispute, concurrently with meetings held to discuss InfraBuild’s proposal to implement the roster change.

What ‘consultation’ does the Agreement require?

  1. InfraBuild’s proposed change was a roster change, and also a major change. This is agreed by both parties, and evident from the Notice of Roster Change – Warehouse issued on 27 November 2023. The parties agree that consultation was required but disagree about what was required and whether InfraBuild complied with the requirements.

  1. The concept and principles of consultation in an industrial context are well settled.[4] The key principles relevant to this matter are that the requirement to consult is dictated by the terms in which the requirement is expressed and the factual context. Consultation is also meaningful, in that it must be undertaken during the decision-making process, giving those consulted the opportunity to express their views and for those views to be considered such that the decision-maker could adopt a different course of action or even withdraw the proposal. Consultation is not collaborative decision making nor a right of veto.

  1. The Union contends that InfraBuild has failed to consult as required by the Agreement. The Union says that InfraBuild was required to consult in accordance with the model consultation term and Appendix C – Supplementary Consultation Process, and the consultative committee clause. The Union says that the relevant failures were that the proposal for change never reached the stage of an implementation plan as required by (a)(iii) of the Supplementary Consultation Process, nor was the failure to reach the stage of an implementation plan referred to the Dispute Settling Procedure, as required by (c) of the Supplementary Consultation Process. Further, the Union says that the proposal was never discussed at a Consultative Committee meeting. Last, the Union says that InfraBuild did not discuss many aspects of the change, nor steps it was taking to mitigate the effects, nor provide all relevant information about the change in writing; nor give prompt and genuine consideration to many matters raised about the change.

  1. InfraBuild’s says that it was able to give 7 days’ notice to vary shifts and start and finish times, if it, the site delegate and a majority of employees concerned could not agree, in accordance with Clauses 40.2(c) and (e) of the Agreement. InfraBuild agreed that the roster change was a major change and subject to consultation but said that it was only required to comply with the model consultation term because the Supplementary Consultation Process cannot operate where the model consultation term has been imported into the Agreement by operation of s 205. It says that it did comply with the model consultation term, after which it issued a notice in accordance with Clause 40.2 to implement the changes and it did implement the changes.

What is the ‘consultation term’ of the Agreement?

  1. At the time that the Agreement was approved, the Agreement contained Clause 14 which dealt with consultation where there was a significant change; Clause 15 which provided for a consultative committee; and Clause 40.5 which dealt with consultation about changes to rosters or hours of work. More than one clause in an enterprise agreement can be a ‘consultation term’, provided that when read together, they provide for all the requirements of s 205.[5]

  1. During the approval process, the Commission inserted the model consultation term because it formed the view that the Agreement’s consultation clauses were inconsistent with s 205 of the Act in the following ways:

·   Clauses 14(a) and (b) restricted the meaning of ‘significant change’; and

·   Clause 14(c)(iii) limited representation to ‘delegates and employee representatives nominated by the union’.

  1. Section 205 of the Act provides:

“Enterprise agreements to include a consultation term etc.

Consultation term must be included in an enterprise agreement

(1)An enterprise agreement must include a term (a consultation term) that:

(a)requires the employer or employers to which the agreement applies to consult the employees to whom the agreement applies about:

(i)a major workplace change that is likely to have a significant effect on the employees; or

(ii)a change to their regular roster or ordinary hours of work; and

(b)allows for the representation of those employees for the purposes of that consultation.

(1A)For a change to the employees' regular roster or ordinary hours of work, the term must require the employer:

(a)to provide information to the employees about the change; and

(b)to invite the employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities); and

(c)to consider any views given by the employees about the impact of the change.

Model consultation term

(2)If an enterprise agreement does not include a consultation term, or if the consultation term is an objectionable emergency management term, the model consultation term is taken to be a term of the agreement.

(3)The regulations must prescribe the model consultation term for enterprise agreements.”

  1. Section 205 does not deal with how the model consultation term, once inserted into and taken to be a term of the agreement, interacts with other terms. In Teekay Shipping (Australia) Pty Ltd v Auld & Ors,[6] a Full Bench of the Federal Court held that where a model consultation term is taken to be a term of an agreement because of s 205, it then displaces any inconsistent, inadequate or deficient term. The parties agree that once the model consultation term was inserted into the Agreement, it displaced Clauses 14 and 40.5.

How does the model consultation term interact with other terms when an agreement is varied?

  1. In this matter, after the insertion of the model consultation term, the parties agreed to vary the Agreement to include the Supplementary Consultation Process in Appendix C. The variation was approved, as earlier outlined.

  1. The Supplementary Consultation Process is very similar to Clause 14.

  1. Clauses 14(a) and (b) defined the point in time when consultation would be triggered but was inconsistent with s 205(1)(a)(i) as the definition of ‘significant change’ was not as broad as a major workplace change that is likely to have a significant effect on the employees. Clause (a) of the Supplementary Consultation Process replaces all of 14(a) and (b) with reference to the obligation under the model consultation term to trigger consultation. It then requires additional steps, which are relevantly the same as Clauses 14(c)(ii), (iii) and (iv), 14(d) and 14(e). The Supplementary Consultation Process also allows for employee representation in addition to the Union, which was another ground for Clause 14’s inconsistency with s 205.

  1. Clause 40.5 was not inconsistent with the model consultation term. However, the parties made no arguments about the application of Clause 40.5 to this matter (as they agreed it had been displaced by insertion of the model clause), so I do not otherwise deal with it.

  1. While Teekay did not deal directly with how a term included in an agreement by variation after the insertion of the model consultation term interacts with it, the reasoning of the majority makes clear that all terms of an agreement must be read consistently with the model consultation term where it is has been taken by force of s 205 to be a part of an agreement.

  1. The majority of Rares and Logan JJ said:[7]

“The Act makes the [model consultation term] term of the enterprise agreement when the commission approves it so as to ensure the consultation term, as prescribed by law, will apply regardless of the other terms of the agreement that may have dealt inadequately or inconsistently (as here) with the same subject matter.”

  1. The majority further elaborated that:[8]

“… once the [model consultation term] is deemed by force of section 205(2) to be part of an enterprise agreement, any inconsistent or competing provisions of that agreement cannot be permitted to interfere in the operation of the [model consultation term]. Such inconsistent or competing provisions are inoperative because they do not provide for a consultation term that section 205(2) imports in their stead.”

  1. Wigney J wrote a separate decision that agreed with the majority. Wigney J held that the model consultation term supplants a deficient or defective consultation term, including multiple clauses of an agreement that could constitute ‘a consultation term’.[9] Wigney J went on to state that there should be a construction of enterprise agreements that avoids uncertainty and for a term to co-exist with the model consultation term, there has to be no inconsistency.[10]

  1. The Supplementary Consultation Process was included by variation of the Agreement after the insertion of the model consultation term and so is not displaced by it. However, as the varied agreement includes the model consultation term, the Supplementary Consultation Process can co-exist with the model consultation term only if it is not inconsistent.

Is the Supplementary Consultation Process inconsistent with the model consultation term?

  1. The Union submits, and I agree, that the obligation to consult in the Supplementary Consultation Process is not inconsistent with the model consultation term, because the Supplementary Consultation Process simply refers to the obligation in the model consultation term. So, the Company’s obligation to consult occurs where the Company has made a definite decision to introduce major change that is likely to have a significant effect, or where it proposes to introduce a change to the regular roster or ordinary hours of work.

  1. But as the proposed change deals with both types of change under Clause (1) of the model consultation term, I must consider whether the terms of the Supplementary Consultation Process is inconsistent with any clause of the model consultation term.

  1. Clause (a)(i) of the Supplementary Consultation Process requires that the proposal for change is submitted to affected employees, employee representatives and the Union, including Union delegates, and the parties must develop a proposal that can be communicated back to the workforce. Clauses (a)(ii) and (iii) require a continued communication process, consideration of feedback and successive reviews until the proposal reaches the status of an implementation plan, which has the agreement of the Union, the Company and a valid majority of affected employees. Clause (b) requires that neither party unreasonably withholds agreement nor delays the process. Last, Clause (c) of the Supplementary Consultation Process allows for failure to reach agreement to be referred to the Dispute Settlement Procedure in Clause 20. Clause 20 does not preclude work from continuing and does not require maintenance of a status quo while a dispute progresses through the procedure, including once referred to the Commission.

  1. In relation to major change, Clause (2) of the model consultation term requires that the employer must notify relevant employees of a decision to introduce change. Clause (5) requires the employer to discuss the introduction of the change, effect of the change and measures the employer is taking to avert or mitigate adverse effects of the change, and to provide all relevant information in writing about the change.

  1. In relation to roster changes, Clause (10) of the model consultation term requires that the employer notify employees of the proposed change. Clause (13) requires the employer to discuss the change, provide specified information about the change and invite employees to give their views about the impact of the change. Clause (16) defines relevant employees as the employees who may be affected by the proposed change.

  1. For all consultation, the model consultation term requires the employer to give prompt and genuine consideration to matters raised by employees; allows for employee representation and requires the employer to recognise the representative where employees have advised the employer of the identity of the representative. Last, the model consultation term allows the employer to not disclose confidential or commercially sensitive information.

  1. I am of the view while much of the additional requirements of the Supplementary Consultation Process is not inconsistent with the model consultation term, the requirement in (a)(i) about endeavouring to develop a proposal is inconsistent with Clauses (2) and (10) of the model consultation term. This is because Clause (a)(i) requires that the parties ‘endeavour to develop a proposal’, which itself could be subject to Clause (c) if agreement is not reached, and allows referral of the failure to agree to the Commission in accordance with Clause 20, having the effect of not allowing the Company to implement a change without agreement of the employees and the Union to the proposal. It is also difficult to reconcile (a)(i) with the requirement under the model consultation term to consult after the employer has made a definite decision to introduce change, where a proposal is subject to agreement of the parties.

  1. I observe that Teekay does not prevent an agreement from having a consultation term that could subject a proposal for change to agreement of the parties, provided that the term otherwise complied with ss 205(1) and (1A).[11] But once the agreement includes the model consultation term, other terms may only co-exist if there is no inconsistency. That is not the case here, and I find that the Supplementary Consultation Process cannot be construed so that it operates together with the model consultation term.

  1. As such, the failure to reach the status of an implementation plan does not prevent InfraBuild from proceeding to issue the Notice of 27 November 2023, provided that it complied with the model consultation term.

Application of Clause 15 – Consultative Committee

  1. The Agreement also contains Clause 15 – Consultation with Employees and Union Representatives which deals with regular consultative committee meetings including delegates and management representatives, hour long site wide meetings each quarter for employees and the Union and that the consultative committee will be the key enabling forum to discuss various subjects, including roster changes.

  1. Clause 15 deals with mechanisms, such as agendas and attendance at meetings without loss of pay, and is not inconsistent with the model consultation term and so can co-exist with it. It requires one relevant obligation to this matter, which is that the committee should be the key enabling forum for discussions about proposed roster changes. I deal with this further below.

  1. Clause 15 was not a consultation clause, but nor is it inconsistent with the model consultation term. It applies to the parties.

Application of Clause 40.2 – Shift Workers General Provisions

  1. Clause 40.2(b) deals with shift work and provides that shifts may be worked by such method and at such time as required by the company. Clause 40.2(c) provides that an established method may be varied by agreement or, failing agreement, on 7 days' notice.

  1. InfraBuild relies on this clause for the giving of its notice, without agreement.

  1. The Union submits, and I agree, that the process for achieving agreement to a proposed change to the method of working shifts is to consult. Therefore, the proposed changes that are the subject of this dispute were subject to the model consultation term, Clause 40.2 and Clause 15 because it involved roster changes, changes to the method of working shifts and major changes.

Did InfraBuild comply with its consultation obligations under the Agreement?

  1. The model consultation term requires that, for major changes and changes to regular rosters or ordinary hours of work, the employer must discuss the introduction of the change. For the purposes of the discussion, the employer must provide all relevant information. The employer must invite employees to give their views about the impact of the change and give genuine consideration to the matters raised by relevant employees. The clause also requires recognition of employee representation.

  1. Clause 15 requires no more than that the Consultative Committee is the key enabling forum, but it is not the sole forum for discussing various subjects, including proposed changes to rosters.

  1. Clause 40.2 requires agreement to change the method of working shifts, and so is subject to the model consultation term where the term would otherwise apply (major change or change to regular roster).

Changes discussed and relevant information provided

  1. There is no issue here regarding recognition of employee representatives. Site delegates and a union official were initially invited and participated in all consultation meetings. There were at least 2 meetings to discuss the changes as well as a consultative committee meeting.

  1. There was disagreement in the evidence about whether the changes were discussed at the consultative committee meeting held on 16 November 2023. The subject was not on the agenda. I find, based on the evidence of Mr Axford, Mr Swan and Mr Renehan, that the subject of roster changes was raised but not substantively discussed at the 16 November meeting. All witnesses agree that a further meeting was scheduled to separately discuss the subject.

  1. I am of the view that the failure to discuss the subject of roster changes at a consultative committee meeting does not mean that InfraBuild did not consult as required. Clause 15(c) provides that the committee will be the key enabling forum but does not restrict consultation to only at the forum, and if it did, could result in the employer not complying with its obligations to consult with ‘relevant employees’, who may not necessarily be attendees of consultative committee meetings.

Feedback and genuine consideration

  1. InfraBuild invited feedback on its proposed change, including providing a time for Mr Swan to meet with employees and delegates to get feedback. The evidence of the Union’s witnesses demonstrates the degree of feedback provided and while it ultimately did not change the employer’s proposed course, they nevertheless received significant feedback.

  1. I also accept InfraBuild’s evidence, through Mr Renehan, Mr Tiley and Mr Van der Merwe, that it genuinely considered the matters raised. It did then decide to not go ahead with one part of the proposed change (the crane proposal). I am also satisfied that the consideration was prompt, given the timelines provided.

Conclusion and Answer to the Question for Determination

  1. I have formed the view based on all the evidence provided that InfraBuild did comply with its obligation to consult under the Agreement, and could therefore issue the notice that it did issue on 27 November 2023. It did so in accordance with clause 40.2 of the Agreement, having tried and failed to achieve agreement to its proposed roster change by complying with the Agreement’s consultation term, being the model consultation term.

  1. I found the Supplementary Consultation Process to be inconsistent with the model consultation term.

  1. I therefore answer – yes – to the question for determination, which was:

“On 27 November 2023, InfraBuild gave its employees in the warehouse of its Laverton steel mill notice pursuant to paragraph 40.2(e) (the Notice) of the Laverton Steel Mill Enterprise Agreement 2021 – 2025 (the Agreement) that it would implement changes to their shift rosters, effective 8 January 2024 (the Roster Changes).

Was it open to InfraBuild under the Agreement to give the Notice and implement the Roster Changes?”


COMMISSIONER

Appearances:

P Reilly for the Applicant
L Saccoccio of Australian Industry Group for the Respondent

Hearing details:

2024
13 & 15 May
In Melbourne & via Microsoft Teams

APPENDIX 1 – RELEVANT CLAUSES OF THE AGREEMENT

20. DISPUTE SETTLING PROCEDURE

The following sets out a procedure for dealing with all disputes relating to this Agreement or the NES.

(a)   Issues in dispute will be resolved between the employees and management at the Mill.

(b)   When required, the appropriate union delegate and an appropriate Company representative will assist in the resolving of the dispute.

(c)   Should issues remain unresolved, the appropriate union official and Company representative will then become involved.  This may involve senior Union officials and management meeting, as required, to seek to resolve any dispute.

(d)   Should all the steps in this disputes resolution procedure fail to resolve the matter in dispute either party may seek the immediate assistance of the Fair Work Commission for conciliation and or arbitration whose decision shall, subject to any appeal, be final and shall be accepted by the parties.

(e)   There is an obligation on the Union to use its best endeavours to ensure that at all times work will continue and consideration of the needs of the enterprise will remain a priority.

(f)    The parties may agree that in certain circumstances it may be appropriate to engage an independent investigator to examine the issues involved in a dispute.  When this occurs, the parties will confer as to who the independent investigator will be and the scope of the independent investigator’s role.

14. FACILITATION OF CHANGE

(a)   The parties agree that a core objective of this Agreement is to establish a mechanism to progress options for significant change through consultation.  This objective recognises that change does not always present itself in clear solutions at the time of negotiating the Agreement.

(b)   Significant change relates to the introduction of new technology, including automation, work processes, and/or practices, (including manning on matters not elsewhere covered by this Agreement), that may have a significant effect on the parties’ rights, benefits, and/or conditions of employment under this Agreement.

(c)   The parties agree that the mechanism for dealing with any proposals for significant change shall comprehend a proactive consultative approach before implementation can occur.  The practical steps in this mechanism shall normally involve the following procedure:

(i)Discussion with the work group involved for explanation/reasons /justification etc. to explain reasons why change is necessary.

(ii)The Company shall then submit the proposal to the delegates and employee representatives nominated by the union, and the parties shall endeavour to develop a proposal, which can be communicated back to the workforce.

(iii)Following the discussion between the Company and union the parties continue the communication process with the employees affected by the proposal.

(iv)The parties shall consider the feedback from employees and undertake successive reviews of the proposal until it reaches the status of any implementation plan - that is, having the agreement of the union, the Company and a valid majority of employees affected.

(d)   In following the process outlined in paragraph (c) hereto, the union and/or employees shall not unreasonably withhold agreement on a proposal nor unduly delay the process.  In like manner, the Company shall not unreasonably reject changes to the proposal suggested by the union, or by the employees affected by the proposal, to delay the process.

(e)   Failure of the parties to reach agreement on the implementation of a proposal within a reasonable time frame shall become a dispute and be referred to the Disputes Settlement Procedure contained in clause 20 of this Agreement.

15. CONSULTATION WITH EMPLOYEES AND UNION REPRESENTATIVES

(a)   The Company will provide for a 1 hour site wide workforce consultation meeting each quarter of the year for employees and their union to discuss matters affecting their employment with the Company, subject to prior arrangement with and approval of the Company regarding the timing and location of the meeting, and the measures that will be taken to minimise disruption to operations. Attendance at these meetings will be on a without loss of ordinary time pay basis for employees who are rostered to work ordinary hours during a meeting, and will be treated as overtime for an employee who attends a meeting outside their regularly rostered hours.

(b)   The Company will provide for a regular consultative committee meeting involving delegates and management representatives. The meetings will be held quarterly or more frequently by prior arrangement. To enable the meetings to be held in a constructive and productive manner they will focus on a pre-arranged agenda of issues for discussion, in particular measures to improve the operational performance and the sustainability of the business. Attendance at these meetings will be on a without loss of ordinary time pay basis for employees who are rostered to work ordinary hours during a meeting, and will be treated as overtime for an employee who attends a meeting outside their regularly rostered hours.

(c)   The Consultative Committee is the key enabling forum to oversee designated site consultative processes, including:

(i)WHSE – key metrics, performance and capability;

(ii)Training – plans, career path, accreditation;

(iii)Business Updates – key metrics, performance, likely people impact;

(iv)Roster Changes – informed by business updates;

(v)“Suitability” of workforce, including recruitment criteria, access, outcomes;

(vi)Shadow Board facility via consultative mechanism (meet quarterly within this process);

(vii)Discuss and agree commitments, frequency, membership, notifications etc; and

(viii)Review and implement Rules of Engagement, including a trial of using ‘Robert’s Rules of Order’, where relevant, for all consultative mechanisms on site.

40.2  Shift Workers – General Provisions

(a)   “Night Shift” means any shift finishing after midnight and at or before 8:00am.

(b)   Subject to paragraphs (c) and (d) hereof, shifts shall be worked by such method and at such times as the Company requires.

(c)   An established method of working shifts may be varied as to some or all employees by agreement between the Company, site delegate and the majority of the employees concerned, taking into account the circumstances of the Operation or failing agreement, by seven days’ notice of alteration given by the Company to the employees.

(d)   “Rostered Shift” means a shift of which the employee concerned has had at least 48 hours’ notice.  This notice can be waived provided that the employee being asked to change shifts with less than 48 hours’ notice agrees to this change and the change does not create an artificial vacancy.

(e)   Shift rosters shall specify the commencing and finishing times of normal working hours of each shift.  These times may be varied as to some or all employees by agreement between the Company, site delegate and the majority of the employees concerned, taking into account the circumstances of the Operation or failing agreement, by 7 days’ notice of alteration given by the Company to the employees concerned.

(f)    A normal shift shall consist of not more than 12 hours, inclusive of two 20 minute crib breaks.  Such crib breaks are taken in agreement with their leader and in conjunction with production requirements.

(g)   Except at regular change-over of shifts and subject to operational needs, a shift worker shall not:

(i)be required to work more than one normal shift in each 24 hour period; nor

(ii)be required to work any longer than 6 hours during a shift without the 20 minute crib break specified in paragraph (f) hereof, which shall be counted as time worked.

(h)   The concept of this Agreement is to devolve responsibility and authority to the appropriate level.  To this end, paragraphs (f) and (g) hereof should be read in the context of setting minimum standards.  It is the responsibility of employees, in teams, to agree the best means of achieving the work requirements and the taking of breaks.

40.5 Consultation about changes to rosters or hours of work

(a)   Where the Company proposes to change an employee’s regular roster or ordinary hours of work, it will consult with the employee or employees affected and their representatives, if any, about the proposed change.

(b)   The Company will provide information about the proposed change, such as the nature and timing of the proposed change, and invite and give consideration to the views of affected employees about the impact of the proposed change, including any impact in relation to their family or caring responsibilities.

(c)   The requirement to consult under this clause does not apply where an employee has irregular, sporadic or unpredictable working hours.

(d)   These provisions are to be read in conjunction with other provisions in this Agreement concerning the scheduling of work and notice requirements.

APPENDIX C – Agreed Variation – Supplementary Consultation Process

(a)   Where the Company is required to consult with employees and their representatives in accordance with the Model Consultation clause, the parties additionally shall do the following:

(i)The Company shall submit the proposal for change to affected employees, their representatives, the Union, and the Union’s nominated delegates and employee representatives, and the parties shall endeavour to develop a proposal, which can be communicated back to the workforce.

(ii)Following discussion between the parties, the parties will continue the communication process with the employees affected by the proposal.

(iii)The parties shall consider the feedback from employees and undertake successive reviews of the proposal until it reaches the status of any implementation plan - that is, having the agreement of the union, the Company and a valid majority of employees affected.

(b)   In following the process outlined in paragraph (a) hereto, the union and/or employees shall not unreasonably withhold agreement on a proposal nor unduly delay the process. In like manner, the Company shall not unreasonably reject changes to the proposal suggested by the union, or by the employees affected by the proposal, to delay the process.

(c)   Failure of the parties to reach agreement on the implementation of a proposal within a reasonable time frame shall become a dispute and be referred to the Disputes Settlement Procedure contained in clause 20 of this Agreement.


[1] Application by SSX Services Pty Limited T/A InfraBuild Steel Laverton Steel Mill & OneSteel Recycling Pty Limited T/A InfraBuild Recycling[2021] FWCA 6102.

[2] Application by SSX Services Pty Limited T/A InfraBuild Steel Laverton Steel Mill & OneSteel Recycling Pty Limited T/A InfraBuild Recycling[2022] FWCA 3621.

[3] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union' known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Ltd at [114], Principle 1.

[4] See Re Consultation clause in modern awards[2013] FWCFB 10165 at [28]-[32] and CFMEU v Mt Arthur Coal[2021] FWCFB 6059 at [108].

[5] Teekay Shipping (Australia) Pty Ltd v Auld & Ors [2020] FCAFC 206 at [56].

[6] [2020] FCAFC 206.

[7] Teekay at [73].

[8] Teekay at [72].

[9] Teekay at [106]; [132].

[10] Teekay at [136]; [144].

[11] Teekay at [71].

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