Toyota Motor Corporation Australia Limited v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU)
[2013] FWC 1058
•13 FEBRUARY 2013
[2013] FWC 1058 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Toyota Motor Corporation Australia Limited
v
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
(C2012/5870)
Vehicle industry | |
COMMISSIONER GOOLEY | MELBOURNE, 13 FEBRUARY 2013 |
Alleged dispute in relation to changes regarding production.
[1] Toyota Motor Corporation Australia Pty Ltd (Toyota) notified a dispute to the Fair Work Commission because the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers Union (AMWU) and the employees refused to agree to a proposal that a programmed day off (PDO) scheduled for 30 November 2012 be converted to a production day and in its place the PDO be rescheduled for 19 December 2012 rather than being an annual leave day.
[2] The dispute was referred to the Problem Resolution Committee in accordance with clause 19 of the Toyota Motor Corporation Australia (TMCA) Workplace Agreement (Altona) 2011 (the Agreement). The dispute was not able to be resolved so it was referred to conciliation which was unsuccessful. The matter was then referred to arbitration.
[3] At the conclusion of the hearing I advised the parties as follows:
“Given the exceptional circumstances arising from the fire at the supplier, DMG, and the acceptance by the union that if the lost production of 431 units is not recovered this year that there will be an adverse impact upon Toyota, its suppliers and customers, and potentially upon TMCA’s employees, I find that it is unreasonable in all the circumstances for the employees and the union to without their agreement to the proposed changes.
I accept, however, that this change has the potential to disrupt employees’ plans. I would therefore recommend that if there are any disputes over TMCA’s refusal to accommodate the particular needs of employees who advise that they are unable to attend work on 30 November 2012, that these disputes be dealt with prior to 30 November 2012.” 1
[4] An order and recommendation were issued 2to give effect to that decision. I advised the parties that I would publish my reasons for that decision and these are the reasons.
The Agreed Facts
[5] 1. Toyota Motor Corporation Australia Limited employs employees at its Vehicle
Manufacturing Plant at Altona and the terms and conditions of their employment are governed by the Toyota Motor Corporation Australia (TMCA) Workplace Agreement (Altona) 2011 (“WPA”). TMCA has over 60 suppliers who supply different parts and components for the manufacturer of Camry and Aurion models at the Altona Plant.
2. Venture DMG is a major component supplier of TMCA supplying 16 different chrome parts and other parts to TMCA for production of the Camry and Aurion models, which are manufactured at TMCA’s Altona Plant.
3. On Friday 19 October 2012 a fire occurred at the Venture DMG Keysborough Plant, damaging significant sections of their plant.
4. As a result of the fire and consultation between the parties there was agreement between TMCA and union representatives that the Plant Operating Days Calendar would be changed to bring forward a Programmed Day Off (“PDO”) from Wednesday 19 December 2012 to Monday 22 October 2012 and the PDO scheduled for December 2012 would be replaced by an annual leave day drawn from the employee’s 2013 annual leave entitlements.
5. TMCA has put in place significant contingency measures to ensure that production at TMCA has been largely unaffected, including:
(a) sourcing alternative supply from TMCA’s affiliates in Japan, Thailand and the United States;
(b) made changes to packaging development and production and adopted urgent air freight delivery of parts at additional cost to TMCA; and
(c) has sought to source alternate supplies from a local supplier.
6. As a result of the lost production day on 22 October 2012 this has resulted in 431 units that were scheduled to be produced in the build plan for customers in November and December not being able to be produced.
7. TMCA has proposed a change to the PO Calendar to enable this lost production to occur on Friday 30 November 2012. This change would involve:
(a) the PDO currently scheduled for 30 November 2012 would be converted and become a production day;
(b) the PDO for 30 November 2012 would be rescheduled to 19 December 2012, being the original PDO for December; and
(c) the annual leave day that had effectively been brought forward from 2013 to 19 December 2012 (as part of the recent changes to the PO Calendar) would be returned to 2013 and available to employees to take as an annual leave day.
8. This change (with less than 2 months’ notice) can be implemented subject to consultation and agreement between TMCA and its employees through the nominated senior Employee Representatives and the Union in accordance with the WPA.
9. In accordance with clause 6 of the WPA such agreement cannot be unreasonably withheld.
10. This proposed change has been discussed with the nominated senior Employee Representatives and the Union, with TMCA having discussed its proposal and sought agreement through:
(a) the senior site co-ordinator on 23 October 2012;
(b) meeting with all senior Employee Representatives and Employee Representatives on 25 October 2012;
(c) further meeting with the Senior Site Co-Ordinator on 1 November 2012;
(d) on 1 November 2012 seeking to have the matter referred to a problem resolution committee, which comprises both TMCA and union representatives;
(e) seeking the agreement of Mr Dave Smith and Mr Paul Difelice of the Union on 2 November 2012, including by email to Mr Difelice;
(f) discussing the matter in Fair Work Australia on 8 November 2012; and
(g) agreeing to a meeting between Mr Smith, Mr Cummuado (AMWU Organiser), Mr Marmara and senior Employee Representatives on Monday 12 November 2012.
11. The senior Employee Representatives, Mr Marmara and Mr Smith have refused to agree to the TMCA’s proposed change.
12. The senior Employee Representatives and the Union submit that their agreement under the WPA is not being unreasonably withheld.
13. The reason stated for the refusal is to the effect that the employee representatives have agreed to enough changes this year and have demonstrated sufficient flexibility.
14. Mr Marmara has suggested that if TMCA paid an additional $250 per employee (which is a reference back to the target bonus amount) the senior representatives and the Union would recommend the proposed change.
15. If the lost production of 431 units is not recovered this year there will be an adverse impact upon TMCA, its suppliers and customers and potentially upon TMCA’s employees.
16. The issue for arbitration is whether the senior Employee Representatives and the Union are unreasonably withholding their agreement under the WPA to the proposed change to the plant operating calendar contrary to clause 6 (paragraph 5) of the WPA and consequently, whether the proposed change to the plant calendar be implemented.
The Industrial Instrument
[6] The Agreement provides at clause 40 for PDO/RDO Flexibility as follows:
“In the event that TMCA is required to change the Plant Operating Days (either increase or decrease) through the conversion of PDOs to RDOs and vice versa, the following process will apply.
● Changes with less than 2 months notice will be subject to consultation and agreement between TMCA and Employees through the nominated senior Employee Representatives and the Union.
● Changes with greater than 2 months notice will be subject to consultation between TMCA and its Employees through the nominated senior Employee Representatives and the senior site co-ordinator.
● If TMCA converts an RDO to a PDO, the PDO will be scheduled on either a Monday, Friday or attached to a public holiday.”
[7] Clause 6 of the Agreement provides that “all references to reaching an agreement in this Agreement is based on the principle that such agreement will not be unreasonably withheld.”
The Evidence of Toyota
[8] Mr Boris Petkovic 3 (the Manager Production and Strategic Planning, Production Control Division) and Mr Anthony Chiodo4 (the Business Partner Manager) gave evidence for Toyota.
[9] Much of Mr Petkovic’s evidence went to support the agreed facts and I do not repeat that evidence here.
[10] In cross examination, Mr Petkovic acknowledged that there had been three occasions in 2012 when there was agreement to change the PDO’s, albeit on one occasion, agreement was only reached after referral to the Fair Work Commission. He also acknowledged that after consultation there had been several changes to the calendar.
[11] Mr Chiodo gave evidence about the process used by Toyota to accommodate employees who were unable to work on a changed production day. It was his evidence that this was sorted out between the worker and their supervisor and that there had not been a grievance referred to the Problem Resolution Committee arising from a refusal of Toyota to allow the employees to have the day off.
The Evidence of the AMWU
[12] Mr Charlie Marmara 5 (the Senior Site Co-ordinator) gave evidence that the members of the AMWU had advised shop stewards that they did not agree to the proposed change because the members had already agreed to a large number of changes.6 Further, the proposed change would disrupt members’ arrangements and in the past Toyota refused to release people who had made family commitments based on the agreed calendar.7 It was said that Toyota required proof such as flight tickets before they would agree to an employee not working.8
[13] Mr Marmara said that given the time it takes to resolve grievances there was no point in lodging a grievance if individuals are refused leave.
[14] In cross examination Mr Marmara denied that Toyota could not find another way to make up the production. It was his evidence that they could have called for volunteers or they could have had employees work overtime to make up the lost time.
Conclusion
[15] The provisions in the Agreement that permit Toyota, with more than two months notice to change PDOs and RDO after consultation but without agreement, gives Toyota flexibility to respond to fluctuations in production demands. The calendars themselves advised employees that Toyota “cannot rule out future changes to the 2012 work day calendars.”
[16] The provisions in the Agreement which require, if the proposed change is within the two month time limit, the agreement of the employees thought their nominated senior employee representatives and the AMWU, give the employees some certainty about their rosters and gives them some ability to make plans around scheduled days off. The importance of this cannot be undervalued. However, given the provisions in the Agreement that agreement cannot be unreasonably be refused, it cannot be said that employees are assured of these days off.
[17] While it is relevant that there have been a number of changes to the calendar in 2012, the question that needs to be determined is whether on this occasion it is unreasonable for there not to be agreement.
[18] The submissions and evidence of the AMWU support the finding that reasons for withholding agreement was the same for the employees and the AMWU.
[19] The AMWU primarily relied upon the impact on employees of the proposed change and the refusal of Toyota to accommodate employees’ particular circumstances when changes have been made in the past.
[20] I accept that any change to the calendar will cause disruption to employees’ arrangements however, that alone, is insufficient for the employees and the unions to not agree to the proposed changes.
[21] I accept that particular employees may have had difficulties in the past in getting agreement from Toyota to not work on the changed day. However it is relevant that there have not been any grievances referred to the Problem Resolution Committee in relation to these difficulties.
[22] I am therefore unable to conclude that Toyota has unreasonably refused to accommodate employees’ particular circumstances in the past.
[23] The circumstances faced by Toyota on this occasion were not of its making. I accept that in hindsight, Toyota did not need to have a PDO on the Monday after the fire and had it not had a PDO on the Monday it would have had sufficient production days to meet its production requirements. However I also accept that in the circumstances of the fire Toyota did not know this when they made the decision to change the PDO in that week.
[24] I accept the uncontested evidence of Mr Petkovic that Mr Marmara’s suggestions about alternative arrangements, like working overtime or calling for volunteers, would not be financially viable for Toyota and its suppliers and was not an option.
[25] The AMWU agreed that if the lost production of 431 units was not recovered in 2012 there would be an adverse impact upon TMCA, its suppliers and customers and potentially upon TMCA’s employees.
[26] It was for these reasons that I made the decision which was announced on 14 November 2012.
COMMISSIONER
Appearances:
S Pill for the Applicant
A McLean for the Respondent
Hearing details:
2012.
Melbourne:
14 November.
1 Transcript PN 1 and 2
2 PR531438
3 Exhibit A2
4 Exhibit A3
5 Exhibit R2
6 Ibid at [9]
7 Ibid at [10]-[11]
8 Ibid at [12]
Printed by authority of the Commonwealth Government Printer
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