Transfield Services (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union

[2014] FWC 4112

[2014] FWC 4112

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Transfield Services (Australia) Pty Ltd
v
Construction, Forestry, Mining and Energy Union
(C2014/511)

SENIOR DEPUTY PRESIDENT O'CALLAGHAN ADELAIDE, 25 JUNE 2014

Application to deal with a dispute - interpretation of agreement - capacity to require roster changes.

[1] On 31 March 2014 Transfield Services (Australia) Pty Ltd (Transfield) lodged an application pursuant to s.739 of the Fair Work Act 2009 (the FW Act) and the dispute resolution provisions of the Transfield Services Corrosion Protection (ASC)/CFMEU Enterprise Agreement 2013-2015 (the Agreement).

[2] This application was the subject of conciliation conferences with me on 16 and 30 April 2014. These conferences did not resolve the matter in dispute. At the 30 April 2014 conference the parties agreed that the matter in dispute was:

Under the terms of the Agreement, can Transfield change rosters to introduce a "four on four off" roster with 10 hour working days, through the provision of adequate notice to employees?

[3] The parties agreed to refer this matter to the Fair Work Commission (the FWC) and to provide written submissions and submissions in reply within nominated time limits. Whilst both parties were able to request a hearing in this matter, no request of this nature has been made.

The background to the dispute

[4] Transfield undertakes sandblasting and maritime painting services in relation to the manufacturing and maintenance of the Collins Class Submarines. This work is done under a contract with the ASC which is currently subject to renegotiation. Transfield has been advised of an ASC requirement that the work it is responsible for should be expedited and asserts that this will require an increase in labour resources and hours to complete the task within the scheduled time frame. Transfield advise that:

“25. Using our current roster arrangement, to service a set number of Critical Path work fronts we must operate with 3 labour teams working Monday to Thursday, Tuesday to Friday and Wednesday to Saturday.

26. In order to service 10 work fronts within the submarine over a 5 day period this would require 3 labour teams consisting of 45 personnel per team (3 personnel per work front x 5 work fronts x 3 Shifts) working across 6 days. On Wednesday and Thursday of the week, we would have 55 personnel on roster that cannot access a Critical Path work front, equating to 990 man-hours of non-productive work.

27. This is not only inefficient but it would also delay the work schedule. This problem is ameliorated by performing the work over the seven days of the week when necessary.” 1

[5] Transfield seek to implement a roster which provides for daily working hours of 10 hours per day, over seven days of the week on the basis of four days on, and four days off. It proposes to operate day shift and night shifts on this basis. The Transfield proposal is that this arrangement would be worked as was necessitated by the ASC work requirements.

[6] Transfield consider that this arrangement is both necessary for the performance of the contractual obligations and consistent with the relevant Agreement provisions.

[7] The CFMEU asserted that the proposed arrangement of working hours is inconsistent with the Agreement provisions, and particularly clause 19, which was the subject of substantial negotiation in the process of negotiating the Agreement in mid-2013.

The Agreement dispute resolution provisions

[8] There is no dispute that clause 25 of the Agreement provides the jurisdiction for the FWC to arbitrate this issue as the discussions to date and the conciliation process have not resolved the matter.

The Agreement

[9] The Agreement was approved on 18 October 2013. It operates to 30 June 2015. Clause 7 provides that:

“7. RELATIONSHIP TO METALS ENGINEERING AND ASSOCIATED INDUSTRIES AWARD 1998

Appendix A of this Agreement contains the provisions of the Award that form part of this Agreement. Where a term in the Award is inconsistent with a term specified elsewhere In this agreement, the term specified elsewhere in the agreement Will prevail over the term in the Award to the extent of the inconsistency.”

[10] Appendix A relevantly refers to clause 6 of the Award which deals with hours of work.

[11] Clause 19 of the Agreement states:

“19. DAY WORKERS - HOURS OF WORK

19.1 The Ordinary Hours of work will be 9 ordinary hours per day for 36 per week. to be worked on the following basis:

• Three day work cycles comprising one four day roster Monday to Thursday, a second Tuesday to Friday and a third Wednesday to Saturday

• Two afternoon shift rosters comprising four shifts Monday to Thursday and four shifts Tuesday to Friday

• Two night shift rosters comprising four shifts Monday to Thursday and four shifts Tuesday to Friday

Employees agreeing to work the Wednesday to Saturday roster will be required to commit to do so for at least a 6 weeks continuous period Operational needs will determine If this Wednesday to Saturday raster is required and if so how long it continues.

19.2 The Ordinary Hours of work prescribed may be worked an any days or all of the days of the week, Monday to Saturday and will include a 10 minute paid tea break Where work is performed in accordance with this clause the minimum rate to be paid for a day worker for ordinary time on Saturday will be time and a half for the first two hours and double time thereafter

19.3 The Ordinary Hours of work as distinct from the spread of hours prescribed on any day will be worked continuously except for meal breaks, at the discretion of Transfield Services, between 6:00 a.m. and 6:00 p.m., provided that:

• Work done prior to the spread of hours fixed in accordance with this clause for which overtime rates are payable will be deemed for the purposes of this clause to be part of the Ordinary Hours of work; and

• The spread of Ordinary Hours may be altered by mutual agreement between Transfield Services and the majority of Employees in the section or sections concerned.”

[12] Clause 20 of the Agreement states:

“20. SHIFT WORKERS - HOURS OF WORK

20.1 Shift Work Definitions

For the purposes of this Agreement

• “Early Morning Shift” means any shift starting at or after 3.00am and before 6.00am.

• “Afternoon Shift” means any shift starting at or after 12.00 noon and before 8.00pm.

• “Night Shift” means any shift starting at or after 8.00pm and before 3.00am.

• “Rostered Shift” means a shift of which the employee concerned has had at least 48 hours' notice.

20.2 Shift Roster

The hours of work of weekly employees on shift work shall be an average of 36 per week.

Shifts shall be worked according to a roster which shall

• “Early Morning Shift” means any shift starting at or after 3.00am and before 6.00am

• “Afternoon Shift” means any shift starting at or after 12.00 noon and before 8.00pm

• “Night Shift” means any shift starting at or after 8.00pm and before 3.00am

• “Rostered Shift” means a shift of which the employee concerned has had at least 48 hours' notice

Five (5) day shift work shall provide for the working of shifts over five (5) consecutive days, Monday to Friday inclusive.

Seven (7) day shift work employees rostered to work shift work over five (5) days within a six (6) or seven (7) day spread shall be rostered to have two (2) consecutive days off.

Day workers may be transferred to shift work by 48 hours (by the clock) notice given by Transfield Services to the employee where this is necessary Transfield Services will take into account legitimate family concerns of the employee or in cases where sudden or unforeseen circumstances make the change necessary, by 24 hours' notice.

Any of the shift provisions prescribed in this clause may be varied as to all or a section of employees by agreement between Transfield Services and the employees directly affected.

Any disagreement that may arise with respect to the shift rosters shall be discussed initially in accordance with the Disputes Settlement Procedure, Clause 24 of this Agreement.

20.3 Ordinary Hours

The ordinary hours of work for shift workers shall not exceed an average of 36 per week over a shift roster.

A shift shall consist of not more than ten consecutive hours inclusive of a crib time of thirty (30) minutes which shall be counted as time worked.

20.4 Overtime

All time worked by a shift worker in excess of or outside the ordinary hours, or on a shift other than a rostered shift, shall be paid for at penalty rates. This shall not apply when the overtime is worked by arrangements between the employees themselves or for the purpose of affecting the customary rotation of shifts. When such overtime is worked, the Shift Allowance provisions of Subclause 20.5 below shall not be applicable.

20.5 Shift Allowances

Shift workers whilst on early morning or afternoon shift other than on a Saturday, Sunday or Public Holiday shall be paid for such shift 15% more than their ordinary rate.

Shift workers whilst on night shift other than on a Saturday, Sunday or Public Holiday shall be paid for such shift 30% more than their ordinary rate.

20.6 Saturdays

Employees working on shifts between midnight on Friday and midnight on Saturday shall be paid for such shift at 50% more than the ordinary rate.

20.7 Sundays and Public Holidays

Subject to this clause, the provisions of the parent Award relating to Public Holidays and Holiday Work shall apply to shift workers. Where shifts commence between 11.00pm and midnight on a Sunday or holiday, the time so worked before midnight shall not entitle the employee to the Sunday or holiday rate; provided that the time worked by an employee on a shift commencing before midnight on the day preceding a Sunday or holiday and extending into a Sunday or holiday, shall be regarded as time worked on such Sunday or holiday, Where shifts fall partly on a Sunday or a holiday, that shift, the major portion of which falls on a Sunday or a holiday, shall be regarded as the Sunday or holiday shift.

Employees working on a rostered shift on a Sunday shall be paid for such shift at double the ordinary rate and for such shifts on a Public Holiday at two and a half times the ordinary rate.

20.8 Call Outs for Shift Workers

A shift worker called out to work after the expiration of his or her customary working time and after having left work for the shift. or is called out to work on a day on which he or she is rostered off, shall be paid for a minimum of three (3) hours work calculated at double the ordinary prescribed rate for the first Call Out Provided that if the Call Out occurs on a Public Holiday, payment shall be calculated at the rate prescribed.”

[13] The Transfield position relies on clause 20 as the relevant provision and asserts that this clause permits rostering over seven days of the week. Transfield asserts that its roster proposal does not require employee agreement as the changes proposed are consistent with clause 20. Further, Transfield asserts that it has followed the necessary consultation requirements so that its proposed change can be implemented and that it will consider requests for reassignment of employees in the event that individual employees establish legitimate reasons why they could not work a seven day roster.

[14] The CFMEU position is that clause 19 establishes roster patterns for day and shift workers 2 and that this clause provides for ordinary hours of work to be worked on "day work cycles", "afternoon shift rosters" and "night shift rosters". The CFMEU position is that clause 19 does not permit a unilateral change to a four on four off roster. Accordingly, the CFMEU position is that a roster change of the nature proposed by Transfield could only be achieved by majority employee agreement.

Principles of Interpretation

[15] Consistent with other decisions, I have applied the general approach to the interpretation of agreements. 3 In brief terms this requires consideration of the ordinary meaning of the provisions in question taking into account their context, and to the extent of any ambiguity, background information.

[16] In terms of clause 19, the title of the clause is clearly inconsistent with its content in that the clause refers to shift rosters. The title of the clause cannot be taken to eliminate reference to shift rosters in the content of the clause. In this respect, the title of the clause simply reflects poor drafting. The content of the clause refers to day work which generally relates to an employee whose ordinary hours of work are always daytime hours. Most awards provide for those ordinary hours to be worked between 6.00 am and 6.00 pm. In this respect I have had regard to the definition of day work in clause 36.2 of the Manufacturing and Associated Industries and Occupations Award 2010 which succeeded the Award nominated in the Agreement but is, in this respect, consistent with that Award. Day work differs from shiftwork which generally involves the rostering of work which begins and/or finishes outside of the normal day work spread of hours. Again, the Manufacturing and Associated Industries and Occupations Award 2010, clause 6.4, reflects this common approach.

[17] Apart from providing assistance in definitions, I consider that clauses 19 and 20 of the Agreement substantially deal with the issue of working hours and rosters such that, consistent with clause 7 of the Agreement they provide a comprehensive code in this regard which overrides the provisions of clause 6 of the named Award.

[18] Clause 19 clearly refers to shift rosters as well as day work cycles. This clause establishes the nature of the work cycles in the following terms:

Day Work

4 day roster, Monday to Thursday

4 day work roster, Tuesday to Friday

4 day work roster, Wednesday to Saturday (this last roster appears to require agreement and a commitment to work on that rostered to 6 weeks. It further appears to be predicated on operational needs).

Afternoon Shifts

4 afternoon shifts, Monday to Thursday

4 afternoon shifts, Tuesday to Friday

Night Shifts

4 night shifts, Monday to Thursday

4 night shifts, Tuesday to Friday

[19] I also note that clause 19 provides for ordinary hours to be worked Monday to Saturday. It establishes times within which ordinary hours, presumably for day workers, can be worked, and arrangements relating to employee agreement to change that spread of hours.

[20] Clause 19 provides for nine ordinary hours per day.

[21] I have noted that this clause in the previous version of the Agreement 4 dealt with day work issues rather than shift work. I have also concluded, on the material before me, that clause 19 was the subject of a negotiated change relative to this Agreement.

[22] Clause 19 must be read as providing for two four day shift rosters with the Wednesday to Saturday roster being subject to individual employee agreement. It does not provide the capacity for a four on four off roster arrangement with work on Saturdays and Sundays, at the election of Transfield without some form of employee agreement. Further, it does not provide for ordinary hours to be worked each day of the week without some form of agreement to this effect.

[23] Clause 20 of the Agreement was not altered from the 2010 version of the Agreement. It provides for shiftwork definitions and payment arrangements. Clause 20.2 provides Transfield with the capacity to transfer day workers to shiftwork where this is necessary. Clause 20 refers to 7 day shift work but does so only on the basis that it guarantees those employees two days off after five days. Clause 20 does not establish a clear capacity for Transfield to require a four on four off roster as distinct from specifying payment and time off associated with specific work requirements.

Conclusion

[24] The Agreement clauses 19 and 20, when read together, describe agreed shiftwork arrangements which do not establish a capacity for Transfield to insist on a four on four off shift roster over seven days of the week. The Agreement does not prohibit a 10 hour working day but does not provide for more than nine ordinary hours each day unless there is some form of agreement with employees to this effect. Arrangements to put into effect the hours proposals sought by Transfield would need to be agreed with employees under the provisions of clause 20.2.

[25] It follows that I do not consider that the Agreement permits Transfield to change rosters to introduce a four on roster with 10 hour working days by providing adequate notice.

[26] I have considered this conclusion in light of the clear advice from Transfield 5 that:

“29. The renewal of our contract is currently under negotiation and the outcome of this dispute is likely to impact on our ability to win the work.”

[27] As a consequence, a failure to reach an agreed position which accommodates the interests of both employees and Transfield appears to have the potential to jeopardise the employment of the employees covered by this Agreement. In that context it seems appropriate to urge the parties to undertake further discussions, which, if conducted under the dispute resolution provisions of the Agreement, may involve the FWC.

SENIOR DEPUTY PRESIDENT

 1   Transfield Submissions, 20 May 2014

 2   CFMEU submissions, 20 May 2014, para 6

 3   [2014] FWC 1713, paras 29 and 30

 4   the Transfield Services Corrosion Protection (ASC)/CFMEU Enterprise Agreement 2010-2013

 5   Transfield Submissions, 20 May 2014

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