The Maritime Union of Australia v Co-Operative Bulk Handling Limited T/A CBH Group

[2017] FWC 2042

[2017] FWC 2042

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

The Maritime Union of Australia
v
Co-Operative Bulk Handling Limited T/A CBH Group
(C2016/6355)

COMMISSIONER WILLIAMS PERTH, 10 APRIL 2017

Application to deal with a dispute.

[1] This decision concerns an application made under section 739 of the Fair Work Act 2009 (the Act) by The Maritime Union of Australia (the MUA or the Applicant). The respondent is Cooperative Bulk Handling Limited T/A CBH Group (CBH or the Respondent).

Background

[2] Jurisdiction for this application is founded in clause 41-Dispute Settlement Procedure of the CBH Kwinana Plant Operators Collective Union Agreement 2013 [AE405162] (the Agreement). There is no dispute between the parties and I am satisfied that the Commission has jurisdiction to determine the matter by arbitration.

[3] Related to this decision is the prior decision of the Commission that concerned an application by the MUA for interim orders. This decision was issued on 13 January 2017 and dismissed the MUA’s application for interim orders 1.

[4] As was explained in the prior decision the genesis of the dispute is the decision by CBH to engage 11 additional casual employees as Plant Operators to work at the CBH Kwinana grain Terminal. The MUA argue that CBH was required to, but did not, comply with clause 34-Consultation about Change of the Agreement before engaging these casual employees. CBH do not agree clause 34-Consultation about Change applied to the circumstances here.

[5] The MUA as directed by the Commission characterised the dispute as a question to be determined as follows:

“Are Cooperative Bulk Handling Pty Ltd required to comply with clause 34 of the CBH Kwinana Plant Operators Collective Union Agreement 2013 prior to engaging casual employees (which has the effect of increasing the size of the workforce)?”

[6] CBH have objected to the question as proposed on the basis that it is purely hypothetical, is impermissibly vague and the answer depends on the facts and the question bears little to no relationship with the evidence filed.

[7] In response the MUA advised that the dispute about consultation over the Respondent’s engagement of casual employees in November 2016 has not been resolved and has been referred for determination as to the meaning and effect of clause 34 of the Agreement.

[8] The MUA say the question proposed for resolution “… is not confined to the discrete issue of the engagement of the aforementioned casuals but is directed at the meaning and effect of clause 34 of the Agreement.”

[9] These concerns about the characterisation of the dispute are dealt with later in this decision.

Relevant terms of the Agreement

[10] Clause 34-Consultation about Change of the Agreement prescribes the particular circumstances in which CBH is obliged to notify and consult with their employees and their representatives about change and the manner in which this is to be done. This clause is set out below:

“34. Consultation about Change

34.1. This Agreement recognises that CBH is obligated to carry out its responsibilities in accordance with CBH policies and additionally, where such policies relating to production, program, organisation or technology may also affect the rights and interests of its employees, CBH is also obligated to consider the rights and interests of its employees in the implementation of such policies. Accordingly:

34.2. Company Duty to Notify

Where CBH is likely to introduce changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, CBH undertakes to notify the employee who may be affected by the proposed
changes.

Without limiting the generality thereof, significant effects includes termination of employment, changes in the composition, operation, or size of the workforce or in the skills required, the elimination or diminution of job opportunities, promotion opportunities or job tenure, the alterations of hours of work , the need for retraining or relocation or transfer of employees to other work or locations, the restructuring of jobs, the use of contractors and the legal or operational structure of the business.

34.3. Company Duty to Discuss Change

CBH undertakes to discuss with the employees affected, and where applicable the employee's representative, in good faith, inter alia, the introduction of the changes referred to in clause 34.1 and clause 34.2, the effects the changes are likely to have on employees, measures to avert or mitigate any adverse effects of such changes on employees and give prompt consideration to matters raised by the employees and/or employees and/or the union in relation to the changes.

The discussion shall commence as early as practicable after CBH has determined it is likely to make the changes referred to in clause 34.1 and clause 34.2. For the purpose of discussions, CBH undertakes to provide in writing to the employees concerned, all appropriate relevant information about the changes including the nature of the proposed changes, the expected effects of the changes on employees and any other matter likely to affect employees.

CBH must act in good faith in relation to the consultation and the procedure provided within this clause.

34.4. Implementation of Change

The parties agree that after the above notification and discussion has taken place, that CBH after careful genuine consideration of the views of employees may implement the change with seven days notice. Subject to the employees right to utilise clause 41 Dispute Settlement Procedure.”

Evidence and factual findings

[11] Evidence was given by Mr Jeff Cassar (Mr Cassar), the Assistant Branch Secretary of the WA Branch of the MUA. Mr Cassar’s evidence was identical to that given in the prior proceedings with the addition of two and a half further paragraphs to his witness statement.

[12] Mr Cassar has had responsibility for employees of CBH at its Kwinana Terminal for approximately four years.

[13] The employment of the employees at CBH Kwinana is covered by the terms of the Agreement which was approved by the Commission on 4 November 2013 2 and reached its nominal expiry date on 17 May 2016.

[14] In September 2015 employees at CBH made Mr Cassar aware that CBH had commenced engaging approximately 11 casual employees to assist with the harvest period, which runs from around November until the end of February. The employees told Mr Cassar that CBH had not consulted with them prior to commencing this recruitment nor did CBH consult the MUA.

[15] On 19 September 2016 Mr Dave Palmer (Mr Palmer), Plant Operator, emailed the CBH Kwinana Terminal Manager advising he wished to initiate a “formal dispute” on behalf of the workforce as CBH was in the process of “recruiting casual employees without having first complied with the provisions of clause 34 of the Agreement”. CBH referred this matter to Mr Gavin Bignell (Mr Bignell), CBH’s Kwinana Zone Manager, to respond.

[16] On 4 October 2016, Mr Bignell responded to Mr Cassar and Mr Palmer in relation to the email of 19 September 2016. On 14 October 2016, Mr Cassar replied to Mr Bignell on behalf of the MUA and its members and addressed the matters he raised in his correspondence of 4 October 2016. Mr Cassar also sought to escalate the matter through the dispute procedure at that point to endeavour to resolve the dispute. On 21 October 2016, Mr Cassar sought a response from CBH. On 24 October 2016, Mr Bignell advised that CBH believed the dispute settlement procedure had been exhausted and the matter could be referred to the Commission for resolution.

[17] The MUA made this application on 25 October 2016.

[18] The MUA’s members have told Mr Cassar that the effect of engaging the 11 casual employees will be to reduce their opportunity to work overtime and full hours in the workplace. The MUA members are also aware that in 2015 several casuals were engaged for the harvest period but were retained by CBH after the harvest period had ended and are still in the workplace.

[19] In prior years before this instance, CBH has engaged casuals on at least two occasions. Mr Cassar’s evidence was that prior to 2015 when this had occurred there had been some consultation.

[20] In March 2015 Mr Cassar became aware that CBH were putting on casuals but MUA members had not been consulted about this. Mr Cassar put this matter into dispute but it was a bit late in his view because the recruitment had already started. His evidence was the MUA was used to being told before the recruitment had happened, but that did not happen on this occasion.

[21] On 4 August 2015 Mr Cassar had sent an email 3 to Ms Nadine Ross (Ms Ross) of CBH regarding what the MUA viewed as CBH’s failure to consult versus what CBH viewed as the absence of any obligation for them to consult on this. That email did not refer to raising a formal dispute in relation to that matter. Included in that email was a sentence that read:

“There is no retrospective claim related to the absence of consultation in relation to previous recruitment, but we need to clarify the application moving forward.”

[22] Mr Cassar’s evidence was that in March 2015 several casuals were engaged for the harvest period without consultation and were retained by CBH after the harvest period had ended and are still in the workplace. This absence of consultation was raised by employees in March 2015 and Mr Cassar communicated with Ms Ross about this. In August 2015 he advised CBH the MUA considered the lack of consultation that occurred was contrary to the Agreement but they only wanted to clarify the matter for the future. On that occasion the matter was not referred to the Commission for resolution.

[23] His evidence was that the employees have advised him that on all previous occasions the employees were consulted before casuals were engaged for the harvest.

[24] Evidence was also given by Ms Ross. The evidence of Ms Ross included the evidence she gave in the prior proceedings plus a second witness statement.

[25] Ms Ross has been employed with CBH since August 2012 and has been the Employee Relations Manager since November 2015.

[26] In this role Ms Ross is responsible for advising the relevant Terminal and Zone Managers on employee relations matters. She has regular telephone and email contact with the Terminal Manager at Kwinana, during which they discuss any employee issues he is experiencing at the Terminal.

[27] CBH is Australia’s biggest co-operative and operates in the grain industry. CBH manages storage, handling and transportation for over 85% of Western Australia’s annual grain harvest. Through its wholly owned subsidiary, CBH Grain Pty Ltd, CBH trades grain throughout Australia and to over 20 markets worldwide.

[28] CBH commonly has an increase in workload during and immediately after harvest. Harvest and its associated high demand shipping period generally commences in around mid-October and ends in late-March the following year. Consequently mid-October to late-March is a critical period each year for CBH at the Kwinana Terminal.

[29] Ms Ross is familiar with the requirements of the Agreement.

[30] CBH has engaged casual employees at regular intervals to assist with high workload periods, particularly during harvest. At the Kwinana Terminal involved in this matter, casuals would have been engaged each year since she has been employed in 2012. To her knowledge CBH has never on any of these previous occasions consulted with the MUA prior to the engagement of casuals. She disagrees with Mr Cassar that there has previously ever been any consultation with the MUA, however accepts it is possible, but unlikely, that someone else on behalf of CBH consulted with the MUA.

[31] In early March 2015, CBH engaged eight Casual Plant Operators to perform work at the Kwinana Terminal. Ms Ross had a high level of oversight of the engagement process. CBH did not consult with the Plant Operators already employed at the Kwinana Terminal at that time. In August 2015, Mr Cassar emailed her and advised he considered consultation was required. Ms Ross replied that CBH did not agree this was required. No dispute was brought by the MUA or employees in this regard.

[32] Around late July to early August 2016, Mr Jeremy O’Neill (Mr O’Neill), Terminal Manager Kwinana, was in discussions with human resources over a proposal to engage several additional Casual Plant Operators to perform work at the Kwinana Terminal in the months leading into and during harvest.

[33] On 12 September 2016, CBH commenced advertising online on ‘Seek’ for Casual Plant Operator positions. On 18 September 2016, applications for Casual Plant Operator positions closed. CBH received 118 applications in total. CBH began shortlisting applicants for interviews.

[34] One week later on 19 September 2016 Ms Ross attended a bargaining meeting in relation to a replacement enterprise agreement covering Plant Operators engaged at the Kwinana Terminal. Mr Cassar was in attendance as the bargaining representative for the employees who would be covered by the proposed new agreement. Mr Palmer was also there as a site delegate. During a break in the meeting, Mr O’Neill received an email from Mr Palmer advising of his wish to initiate the dispute resolution procedure in clause 41 of the Agreement in relation to CBH’s obligation to consult with the workforce prior to commencing recruitment for casual employees. Mr O’Neill subsequently forwarded a copy of this email to Ms Ross. At the time Mr O’Neill received this email the recruitment process for Casual Plant Operators had already commenced and was well underway.

[35] On 13 and 14 October 2016, CBH interviewed 30 candidates for the Casual Plant Operator positions. Between 7 and 11 November 2016, CBH made offers of employment to the 11 successful Casual Plant Operators. On 21 November 2016, CBH commenced conducting on site inductions for the 11 new Casual Plant Operators. Shortly after completing their site inductions, these new Casual Plant Operators commenced performing work at the Kwinana Terminal.

[36] Ms Ross’s evidence is that the new casual employees engaged in November 2016 have been, on average, working between three and a half and four shifts per week. The original intake of casual employees in November 2016 was 11 however there are now only eight of these casual employees remaining.

[37] There is a minor discrepancy of two casual employees in the evidence of Mr Cassar versus the evidence of Ms Ross as to the total workforce involved at the Kwinana Terminal. On balance I prefer the evidence of Ms Ross and find that currently CBH employs 91 employees in the area subject to this dispute, this total being made up of 56 permanent Plant Operators, 32 casual employees and 3 Guaranteed Wage Earner (GWEs) at the site in Kwinana. GWEs are permanent employees who work a set number of shifts for a guaranteed amount each week. Of the 32 casual employees, eight are the additional casual employees engaged in November 2016. Prior to the additional casual employees being engaged in November 2016 there were 83 employees in total. All employees whether, permanent, casual or GWEs, are engaged as Plant Operators.

[38] CBH has a casual pool of employees and these employees are not guaranteed any particular hours. Where an area of CBH’s operations is busy and there is insufficient staff to complete the work it is common for CBH to engage casual employees from the pool to assist with the increased workload.

[39] Ms Ross’s view is that when casual employees have been engaged to perform additional work she does not understand their engagement to have had any material impact on the rest of CBH’s workforce.

Applicant’s submission

[40] The Respondent employs approximately 56 permanent Plant Operators, 34 casual employees and 3 GWEs at the relevant site in Kwinana.

[41] Around the beginning of September 2016, the Respondent commenced a process to engage approximately 11 casual employees to assist with the harvest period which runs from in or about the beginning of November until the end of February. The Respondent had not consulted with the Applicant or the employees prior to commencing this recruitment process.

[42] On 19 September 2016 Mr Palmer emailed the Terminal Manager in Kwinana and advised him that he wished to initiate a “formal dispute” on behalf of the workforce as CBH was in the process of recruiting casual employees without having first complied with the provisions of clause 34 of the Agreement. The matter was the subject of email correspondence between the Applicant and the Respondent. On 24 October 2016, the Respondent advised that it believed the dispute settlement procedure had been exhausted and the matter could be referred to the Commission for resolution.

[43] The Applicant submits that the Agreement provides a very broad obligation on the Respondent to consult with employees when two triggers are met. They are:

1. The Respondent must be likely to introduce change (or changes) in production, program, organisation, structure or technology; and

2. That change must be likely to have significant effects on employees.

[44] The Applicant submits that it is clear that the recruitment of 11 casual employees is a change to the organisation of labour in the workplace or a change to the structure of the workforce such that it meets the first trigger.

[45] The Applicant further submits that the meaning of “significant effect” within the Agreement can be discerned by looking at the text of sub clause 34.2 which provides that:

“Without limiting the generality thereof, significant effects include termination of employment, changes in the composition, operation, or size of the workforce or in the skills required, the elimination or diminution of job opportunities, promotion opportunities or job tenure, the alterations of hours of work, the need for retraining or relocation or transfer of employees to other work or locations, the restructuring of jobs, the use of contractors and the legal or operational structure of the business.”

[46] The Applicant submits that it is obvious from a plain reading of the text of sub clause 34.2 of the Agreement that the recruitment of 11 additional casual employees is a change to the composition of the workforce and/or a change to the size of the workforce. Further, it is clear from the evidence that the engagement of 11 casual employees will result in the diminution of opportunities to work overtime for at least some employees.

[47] In the circumstances, the Applicant submits that the second trigger for interim orders is also clearly met.

[48] Accordingly the MUA submit the correct answer to the question is “Yes”.

Respondent’s Submission

[49] The Applicant submits the engagement of 11 casual employees at the Kwinana Terminal is a change to the organisation of labour in the workplace, or a change to the structure of the workforce. The Applicant submits this change has significant effects on employees as it amounts to a change to the composition and/or size of the workforce.

[50] However, the Applicant’s question appears to assume that the engagement of any number of casual employees at the Kwinana Terminal will have “the effect of increasing the size of the workforce”.

[51] The Respondent has therefore proceeded on the basis that the Applicant’s case is that clause 34 should be interpreted to mean that the engagement of one or more casual employees at the Kwinana Terminal has the effect of increasing the size of the workforce, requiring consultation to occur with employees covered by the Agreement in accordance with clause 34.

[52] The Respondent submits the Applicant’s interpretation of clause 34 is a strained and pedantic interpretation of the Agreement. It is an oversimplification of the clause, which ignores a number of plain words used in the clause.

[53] On a plain reading, clause 34 of the Agreement has the effect of requiring the Respondent to consult with employees covered by the Agreement only if:

1. There is a likely change to production, program, organisation, structure or technology; and

2. The likely change is in turn likely to have significant effects on employees.

[54] The Respondent submits that the plain and ordinary meaning of a ‘change’ is “an act or process through which something becomes different”: Macquarie Dictionary (online edition at 11 February 2017).

[55] Further, the plain and ordinary meaning of the word ‘likely’ is “probably or apparently going or destined”: Macquarie dictionary (online edition at 11 February 2017).

[56] Accordingly, the change which the Applicant says requires consultation must have the probable or apparently destined effect of causing the Respondent’s production, program, organisation, structure or technology to be different than what it was before.

[57] Organisational change carries with it a sense of a general system change, and not just any change. For example, a change of five minutes to the time of a tea break may not be organisational change, nor might change to an individual roster or to the hours of work of an individual. 4 It is a matter of degree.

[58] Similarly, a change in structure involves an alteration to the way in which activities at work are carried out. The engagement of additional casual employees by the Respondent cannot, of itself, be said to be a change in the overall structure of the business. It depends on a myriad of issues such as the size of the workforce, the duration of the engagement, the relevant workloads, the areas the work is being performed and the permanent Plant Operators’ capacity to perform the work.

[59] The engagement of one or more additional casual employees at the Kwinana Terminal is not a change to the Respondent’s general system, nor is it a change to the Respondent’s overall business structure. The Applicant’s question as framed ignores the presence of the words “production, program, organisation, structure or technology” in clause 34 and moves straight to the words “alteration to the size or composition of the workforce”.

[60] If a likely change to the Respondent’s production, program, organisation, structure or technology is established, the second limb of clause 34 that must be met before an obligation to consult is triggered, is that the likely change must be likely to have significant effects on employees.

[61] The intention and purpose of consultation clauses such as clause 34 of the Agreement is to require employers to consult with employees where a change of a particular nature is being made which is likely to significantly affect employees. It was never intended that consultation obligations would apply where minor changes of little to no effect are being contemplated.

[62] This was highlighted in the recent case 5 where the Commission held at [59] that changes which have no “measureable substantial effect” on employees do not enliven consultation obligations. A change which had “no other measurable substantial effect” on employees other than to take them out of their comfort zone was not considered a change warranting consultation.

[63] Clause 34 of the Agreement provides that significant effects include changes to the composition or size of the workforce, or the diminution of job opportunities. The Applicant submits the engagement of one or more casual employees at the Kwinana Terminal amounts to a change to the size or composition of the Respondent’s workforce, and this in itself is a significant effect warranting consultation.

[64] However, this interpretation ignores the presence of the words “significant effects” and fails to have regard to the context and purpose of the consultation clause.

[65] The Respondent has a casual pool of employees available to perform work on a casual basis as and when required. It has a long history of engaging casual employees throughout its business during busy periods to provide temporary assistance. 6

[66] The Respondent submits the engagement of casual employees within its business is therefore not a ‘change’ in the sense that it is not an act or process through which CBH’s business becomes different. It is the continuation of a system that pre-dates the Agreement.

[67] Further, the engagement of one or more casual employees does not result in a general system change, or an alteration to the way in which activities at work are carried out. It is therefore not a change to organisation or structure.

[68] Rather, the Respondent submits that the engagement of casual employees at the Kwinana Terminal from time to time is simply part of the Respondent’s ordinary course of business.

[69] The Respondent further submits that the engagement of one or more casual employees at the Kwinana Terminal is not a change to the size or composition of the Respondent’s ‘workforce’.

[70] The plain and ordinary meaning of the word ‘workforce’ is “the total of all those engaged in employment”: Macquarie Dictionary (online edition at 11 February 2017). Clearly, on its plain meaning, the reference to ‘workforce’ in clause 34 means the Respondent’s entire workforce, and not just those covered by the Agreement.

[71] It would be an unusual and bizarre interpretation of the Agreement if the Respondent was required to consult with the Kwinana Plant Operators where there was a change to organisation or structure which affected another area of the Respondent’s workforce (for example, head office employees) but had no effect on the Kwinana Plant Operators. The Respondent submits this is why the words “significant effect” must be relevant. A reasonable interpretation of clause 34 is that the Respondent is only required to consult with the Kwinana Plant Operators where there is a change in organisation or structure which results in a change to the composition or size of the Respondent’s workforce if that change has a significant effect on the Kwinana Plant Operators. Any other interpretation would lead to an unreasonable result which could not be said to have been in the contemplation of the parties at the time the Agreement was drafted.

[72] Even if the engagement of one or more casual employees at the Kwinana Terminal is considered a change to the size or composition of the Respondent’s workforce (which is denied), provided the engagement occurs at a time when there is an anticipated increase in workload at the Kwinana Terminal and the hours worked by the plant operates are not affected, it cannot be an action which is likely to have a significant effect on any employee. Rather, if the casual employees are engaged to perform excess or additional work, there will be little to no effect on existing employees.

[73] The Respondent submits that if it was required to consult with all Plant Operators at the Kwinana Terminal every time it engaged one additional casual employee within its workforce, this would lead to an absurd outcome. CBH would be in near permanent consultation mode which would be time consuming and severely impede CBH’s managerial prerogative. This could not have been the objective intention of the parties.

[74] The Respondent further notes that clause 34 of the Agreement only requires consultation with employees who are affected by the proposed change. This again lends weight to an interpretation that clause 34 requires some significant effect on employees to be identified as ‘likely’ before consultation is required. If no such significant effects are identified as being ‘likely’ at the time a change is proposed, consultation is not required.

[75] Finally, the Respondent argues the Applicant’s submission that the engagement of casual employees at the Kwinana Terminal will lead to a diminution in job opportunities for existing employees cannot be accepted on the plain and ordinary meaning of the term ‘job’.

[76] A ‘job’ is a collection of functions, duties and responsibilities entrusted to a particular employee. 7

[77] A diminution in ‘job’ opportunities does not mean a diminution in the opportunity to work extra shifts. Rather, it means a diminution in the number or type of roles within the organisation. An increase in the number of casual employees at the Kwinana Terminal cannot possibly be a diminution in the number of roles or role types at the Kwinana Terminal.

[78] There is no guarantee in the Agreement for employees to work extra shifts and working extra shifts is voluntary. Employees do not have a ‘right’ to work overtime when the take up of overtime is entirely voluntary.

[79] Considering all of the circumstances the Commission should determine the answer to the MUA’s question is “No”.

Consideration

[80] Firstly turning to consider the dispute as characterised in the MUA’s question. I accept the concerns raised by CBH that as the question is framed it appears to be potentially hypothetical and will depend on the facts of particular circumstances.

[81] The MUA’s position in response to these concerns was to advise that whilst the dispute arose out of the particular facts of the Respondent engaging casual employees in November 2016 the question the MUA has proposed is not confined to those discrete issues but is directed at the meaning and effect of clause 34 of the Agreement generally.

[82] In the circumstances the Commission will not be providing a general answer to the MUA’s question but will only be answering that question based on the particular recent events that led to the engagement of additional casual employees in November 2016. Indeed at the hearing of this matter the MUA argued its case based on these specific events. 8

[83] The MUA has argued that because on occasions prior to 2015 when engaging casual employees for the harvest period CBH has consulted with the employees this demonstrates that there was an obligation under the Agreement to consult in 2016. There is however no reason to conclude that because CBH has consulted with the employees over any matter previously this was because they were obliged to by the terms of the Agreement. Employers commonly consult with their employees in many circumstances other than when they have an obligation to do so under an industrial instrument.

[84] The Commission’s task is to determine whether clause 34-Consultation about Change had application in the particular circumstances of this matter and there was an obligation to consult on 2016.

[85] Sub clause 34.2 concerns a duty to notify affected employees “Where CBH is likely to introduce changes in production, program, organisation, structure or technology that are likely to have significant effects on employees.”

[86] A first question is whether CBH proposing to engage the additional casual employees as it did, was proposing a change in production, program, organisation, structure or technology?

[87] The MUA argue that engaging the additional casual employees was a change in the organisation of labour or to the structure of the workforce.

[88] It is not clear from the evidence and submissions the MUA put before the Commission what the MUA mean by the organisation of labour having changed or the structure of the workforce having changed. The evidence is CBH has commonly in the past employed some casuals and in fact there were quite a number of casuals already employed immediately prior to CBH engaging the new casuals on this occasion. In addition CBH has engaged additional casuals in the past to meet peak seasonal work. On the MUA’s evidence this occurred in 2015 when several casuals were engaged for the harvest period and this has also happened in previous years. These facts indicate that proposing to engage the 11 casuals on this occasion was not something different from what had occurred in the past.

[89] The MUA has not satisfied me that proposing to engage the additional casuals would be a change in organisation and/or a change in structure. Consequently there was no obligation in the particular circumstances of this matter for CBH to notify their employees or to hold discussions under clause 34 -Consultation about Change.

[90] If I am wrong and there was indeed a change in production, program, organisation, structure or technology the question is whether the proposed change, employing additional casual employees, was likely to have significant effects on employees.

[91] Sub clause 34.2 says that, “Without limiting the generality thereof, significant effects includes termination of employment, changes in the composition, operation, or size of the workforce or in the skills required, the elimination or diminution of job opportunities, promotion opportunities or job tenure, the alteration of hours of work, the need for retraining or relocation or transfer of employees to other work or locations, the restructuring of jobs, the use of contractor’s and the legal or operational structure of the business.”

[92] The MUA submit that the employment of additional casual employees would be a change in the composition of the workforce and/or a change to the size of the workforce and is a significant effect. It is also argued this change will result in the diminution of opportunities to work overtime for at least some employees. The Respondent rejects both arguments.

[93] If what occurred here was a change in the composition or size of the workforce that by itself is not enough, the wording of the clause says it must also be “…likely to have a significant effect on employees…” to trigger the obligation to notify. The examples set out in the clause reinforce this as they are expressly examples of “…significant effects...” (Underlining added)

[94] If the clause was to mean the obligation to consult was triggered when there was a change that had any effect on employees, whether significant or otherwise, the word “significant” would not have been included. The word “significant” is used twice in this clause and can’t be ignored.

[95] Not all likely changes to the composition or size of a workforce will be likely to have a significant effect on employees.

[96] The onus in this matter is on the MUA to provide evidence to support their application. The MUA’s evidence as to the likely effect on employees is limited to the existing employees advising Mr Cassar that “… they believe it will reduce their opportunity to work overtime and full hours in the workplace.” This likely effect the employees believed would happen was not explained or particularised in the evidence in any way nor was it quantified in any way.

[97] The new casual employees began work at the end of November 2016 and the MUA filed this evidence on 3 February 2016. There is no evidence that in this time there has been any actual effect on the existing employees as a result of engaging these casuals, let alone evidence of a significant effect. Finally there was no evidence there was a diminution of job opportunities for the existing employees. This lack of evidence of any actual effect in this period does not support a finding that any effect in future, if there is one, will be significant.

[98] Therefore on the evidence before the Commission I find that engaging the additional casuals as CBH proposed was not likely to have a significant effect on the existing employees. Consequently there was no obligation in the particular circumstances of this matter for CBH to notify their employees or to hold discussions under clause 34-Consultation about Change.

[99] My decision is that CBH, in the particular circumstances, of this case were not required to comply with clause 34 of the Agreement prior to engaging casual employees.

COMMISSIONER

Appearances:

L. Edmonds on behalf of the Applicant.

A. Manos of Counsel for the Respondent.

Hearing details:

2017.

Perth:

February 20.

 1   [2017] FWC 149.

 2   [2013] FWCA 8665.

 3   Exhibit R1 in the Hearing on 14 December 2016.

 4   Austin Health v HSU[2008] AIRC 77 at [35].

 5   Transport Workers’ Union of Australia v Star Track Express Pty Ltd[2015] FWC 3297.

 6 Exhibit R2 in the Hearing on 20 February 2017 at [15].

 7   Jones v Department of Energy and Minerals (1995) 60 IR 304.

 8   Transcript at PN234, PN238 and PN239.

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