[2015] FWC 4177

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution in relation to flexible working arrangements

United Voice
v
Transfield Services (Australia) Pty Ltd T/A Allwater JV
(C2015/4034)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

ADELAIDE, 26 JUNE 2015

Application to deal with a dispute in relation to flexible working arrangements.

[1] On 21 May 2015, United Voice lodged a dispute pursuant to s.739 of the Fair Work Act 2009 (the FW Act) on behalf of its members engaged by Transfield Services (Australia) Pty Ltd T/A Allwater JV (Allwater). United Voice invoked the dispute resolution provisions of the Allwater Employees Enterprise Agreement 2012 - Networks Agreement (the Agreement).

[2] In very broad terms, the dispute relates to the working of ordinary hours. The matter was the subject of a conference with me on 25 May 2015. The parties were unable to reach agreement. Whilst there was no dispute that the Fair Work Commission (the FWC) had the jurisdiction under the Agreement to determine the issue in dispute, this decision deals with a closely related dispute over the extent to which Allwater should be required to revert to the ordinary hours which applied prior to 25 May 2015, pending resolution of the matter which was the subject of the dispute notification.

[3] Both parties have filed written submissions with respect to this matter which they agreed should be arbitrated by the FWC on the following basis:

Should Transfield Services (Australia) Pty Ltd Allwater JV be required to revert to the ordinary hours that applied prior to 25 May 2015, pending resolution of the dispute over the ordinary hours pursuant to clause 4.2 of the Agreement?

[4] Before addressing the submissions put by the parties in this matter, I have set out the relevant background material. This background necessarily precedes the lodgement of this application.

[5] Allwater operates and maintains metropolitan Adelaide water, wastewater, and recycled water systems for SA Water. 1 On 18 December 2014, Allwater lodged a dispute in the FWC pursuant to the Agreement in relation to various proposed roster changes. That matter was the subject of conferences with me on 16 January and 4 February 2015. Those conferences did not resolve the matter. The parties agreed that the FWC should determine the issue in dispute pursuant to the dispute resolution provisions in the Agreement and agreed that the issue in dispute was described in the following terms:

1. Is Allwater permitted, provided the necessary consultation and notice requirements are met, under the terms of the Agreement, to implement the roster attached to these directions, or a roster in substantially similar terms, which involves the following changes:

● a five day roster,
● removal of the Rostered Day Off or unpaid days off related to the seven day roster,
● discontinue the current Paid Day Off arrangements in favour of reduced daily ordinary time work hours,
● reduce annual leave entitlements to 4 weeks per annum,
● roster ordinary hours between 6 am and 6 pm, and
● roster employees for on-call work one weekend in five or one weekend in six depending on work classifications on the basis that work done on weekends will be paid at overtime rates.

2. In the event that the Agreement permits all or any of these changes, are the changes proposed reasonable in all of the circumstances, taking into account:

● Allwater’s contractual obligations,
● the effect of the changes on employees, and
● the extent to which the Agreement achieves its nominal expiry date on 1 July 2015.

[6] The parties agreed that this issue should be determined on the basis of written submissions subject to a request for a hearing. Notwithstanding this, the determination of this dispute was not necessary because, on 10 March 2015, Allwater lodged a Notice of Discontinuance in the matter. The covering email advised:

“As discussed on the phone last week, we intend to discuss these matters as part of EA negotiations. It is intended that discussions will commence in May 2015. Dates are yet to be secured, however the intent is to not have these matters linger, nor negotiations to stagnate.”

[7] The dispute notification for the current matter was made by United Voice. That notification stated:

“1. The Respondent proposes to alter rostering arrangements for its employees.

2. The Applicant and the Respondent are in dispute regarding this matter. The Agreement precludes the Respondent from introducing the changes they seek to make.

3. The parties have recently been involved in dispute proceedings before the Commission regarding proposed roster changes. The matter was resolved on the basis that the issue would be dealt with in the course of enterprise bargaining. This bargaining should commence shortly.

4. The Respondent has advised that they intend to implement the rostering changes on Monday 25 May 2015, notwithstanding that clause 3.2 of the agreement provides that the status quo should be preserved where parties to the agreement are in dispute.” 2

[8] In a conference convened to consider the matter on 25 May 2015, United Voice expressed particular concern that Allwater had required changes to employees’ hours of work to come into effect from that day in breach of its earlier undertaking and the Agreement provisions. The Allwater position was that this issue was separate from that which was the subject of the earlier dispute notification, and that having consulted with its employees it was able to implement this change under the terms of the Agreement as a matter of employer discretion.

[9] The change which is subject of this dispute is described by Allwater on the basis that it “required employees to begin work at 9:30 am and finish at 6 pm on a rotational basis of 2 weeks out of 5 or 6 (Revised Hours). Previously, these employees began working at 7:30 am and finished at 4:30 pm.” 3 United Voice has not disputed this description of the change requirement.

[10] The Dispute Resolution Procedure set out in clause 3.2 of the Agreement establishes a series of steps for the resolution of disputes which culminate in referral to the FWC for conciliation, and ultimately, arbitration. This clause then states:

“During the entire period of the dispute, from the time when the matter first arises until the time of its resolution (at whatever stage the resolution occurs) normal work will continue, under existing conditions unless the performance of normal work would place at risk the health or safety of the Employee (s) concerned.

No party will suffer any prejudice as to the resolution of the matter if normal work continues as required by this clause.

At any stage of the procedure the parties may agree to seek the assistance of an agreed mediator, a member of FWC or a mutually acceptable person to assist with the matter.” 4

[11] Clause 4.2 of the Agreement is also relevant to this issue. This clause states:

“Subject to the exceptions provided below, the ordinary hours of work will be an average of 38 per week to be worked on one of the following basis:
● 38 hours within a work cycle not exceeding seven consecutive days; or

● 76 hours within a work cycle not exceeding fourteen consecutive days; or

● 114 hours within a work cycle not exceeding twenty-one consecutive days; or

● 152 hours within a work cycle not exceeding twenty-eight consecutive days; or

The ordinary hours of work prescribed herein may be worked;
● on any day or all of the days of the week, Monday to Friday; or

● according to a roster over 6 or 7 days per week as required.

The spread of hours for ordinary hours worked continuously, except for meal breaks, will be 6:00 am to 6:00 pm at the discretion of the Company.

The normal days of work for Employees working at Head Office, a treatment plant or a regional office will be Monday to Friday at the discretion of the Company.

The ordinary hours of work may not exceed 10 hours on any day. Where the ordinary working hours are to exceed 8 hours on any day, the arrangement of hours will be subject to the agreement of the Company and the majority of Employees in a plant, workshop, depot or office.

The ordinary working hours will be an average of 38 hours per week, which will be worked in accordance with the basis, set out herein and will be determined as follows;
● by Employees working less than 8 ordinary hours each day; or
● by Employees working less than 8 ordinary hours on one or more days each week; or
● by fixing one weekday on which all Employees will be off during a particular work cycle; or
● by rostering Employees off on various days of the week during a particular work cycle so that each Employee has one week day off during that cycle; or
● by Employees requesting and taking with the approval of their Manager, either one full weekday or two half weekdays off per 152 hour work cycle.

Where an employee is rostered pursuant this clause and the employee requests that the rostered day off be carried over to the next month, and the request is approved by their Manager, the employee must take the day off in the next roster cycle on a day approved by their Manager. Where the employee fails to nominate the day on which they intend to take the rostered day off, their Manager will determine the day that they will take off and will give the employee 48 hours’ notice of the nominated day
Where an employee is rostered pursuant to this clause and the company requests the employee to work on their rostered day off, and the employee agrees, the employee and Manager will mutually agree on an alternative day for the employee to take the day off.” 5 (emphasis added)

[12] The United Voice position is that the change is a change to shift times and that it offends clauses 4.6.4 and 3.1.2 of the Agreement. United Voice contended that the undertaking provided by Allwater to resolve the 2014 dispute meant that issues of this nature would be dealt with in bargaining for a new agreement. United Voice advised that the meetings and correspondence exchanged between it and Allwater from early May 2015 to 18 May 2015 confirmed that the proposal to change the starting and finishing times was disputed. This was confirmed by the lodgement of the dispute notification on 22 May 2015. United Voice asserts that the provisions of the dispute settlement procedure in the Agreement must be read as a “status quo clause”, such that the circumstances preceding the dispute are to be preserved until the dispute is resolved. United Voice asserts that this “status quo provision” cannot be read by reference to the substantive rights of the parties. United Voice referred to various decisions of the FWC and the Court in support of its interpretation of the Agreement in this context. United Voice advised that the change had affected approximately 130 employees and had impacted on the family lives and arrangements. It asserted that a proper application of the principles set out in these decisions required Allwater to revert to the starting times that applied prior to 25 May 2015 until such time as the underlying dispute was resolved.

[13] In terms of the underlying dispute, United Voice detailed the basis upon which it asserted that the change proposal contravened clause 4.6.4 and its position that Allwater had not discussed with the employees measures to minimise the adverse effects of the change on them and had not had due regard to employee family responsibilities. It also asserted that Allwater had failed to give prompt consideration to matters raised by the employees. United Voice advised that the parties are commencing bargaining for a new agreement and that issues of this nature are best addressed through that process.

[14] Allwater asserts that the change which is the subject of this dispute is not the same matter that was the subject of the 2014 dispute notification. Further, that the Agreement expressly provides flexibility for the employer to implement revised hours of this nature because those hours fall within the span of 6.00 a.m. to 6.00 p.m., which is contemplated by clause 4.2 of the Agreement. Allwater contended that the change does not relate to a change to shift times but concerns changes to ordinary hours of work within the specified spread of hours.

[15] Allwater also referred to various authorities which have considered the interpretation of agreements and, particularly, “status quo provisions”. In terms of clause 4.2, Allwater asserts that this clause expressly provides the employer with the sole discretion to determine start and finishing times within a specified spread of hours, and that, if it was the case that changes of this nature had to be agreed by employees, the provision would be meaningless. In terms of clause 3.1.1 of the Agreement, Allwater asserts that the provisions of clause 4.2 effectively exclude a change of this nature from the relevant consultation obligations. Notwithstanding this, Allwater asserts that between 28 April 2015 and 18 May 2015, it engaged in consultation with United Voice and the relevant employees and that, having given consideration to employee feedback, it amended the proposed changes to allow early starts for employees who are rostered on weekends and public holidays.

[16] In relation to clause 4.6.4, Allwater advised that it had adopted a position consistent with employee requests and would, if required, revert to alternative arrangements so as to comply with these provisions.

[17] In relation to the “status quo provision”,Allwater dispute that clause 3.2 represents an express obligation to maintain the status quo pending resolution of a dispute. In this regard, it refers to the reference to “normal work” and asserts that the most appropriate conclusion which can be drawn from the authorities is that the employer’s capacity, and discretion to direct employees to work at different times within the spread of hours, is a “normal incident of employment”.

Findings

Dispute Resolution Procedure Clause 3.2

[18] Whilst it might be argued that employment tribunals have adopted divergent conclusions about the operation and effect of so-called “status quo provisions”, I think it is more appropriate to observe that the interpretation of these provisions, and their effect, is dependent upon the way in which they are drafted, the provisions or issues that are in dispute and the particular circumstances of a dispute.

[19] My assessment of clause 3.2 of the Agreement is that, whilst a dispute is being resolved, it requires that normal work continues under existing conditions unless certain exceptions apply. None of those exceptions are relevant here. Consequently, the provisions of the clause are open to conjecture in terms of whether the reference to normal work under existing conditions requires the maintenance of the ordinary time starting hours that applied prior to 25 May 2013 or whether an existing condition refers to managerial flexibilities incorporated in the Agreement itself.

[20] The parties have provided only limited information about the circumstances and frequency of changes to starting times consistent with clause 4.2 of the Agreement.

[21] In United Voice v Foster’s Australia Limited T/A Carlton and United Breweries Ltd, 6 a Full Bench made the following observations (footnotes omitted):

“[26]The decisions cited by the parties in this appeal demonstrate that status quo-type provisions in industrial agreements have been treated by courts as operating in different ways. In CEPU v Thiess Pty Ltd, relied upon by United Voice, the disputes resolution procedure in clause 15 of the agreement in question provided that "...while the steps below are being followed normal work shall continue and the status quo shall remain (as it was prior to the matter in dispute), unless an employee has a reasonable concern about an imminent risk to his or her health and safety". Clause 15 of the agreement further provided, in relation to the disputes resolution procedure as a whole, that "...it is a fundamental requirement that it be observed in its entirety". The facts of the matter were that the employer desired to alter rostering arrangements in a way which it was entitled to do under the terms of the agreement. The relevant union invoked the disputes resolution procedure. The Court held that in doing so, the effect of the status quo provision was to prevent the employer from implementing the altered rostering arrangements. The Court said:

"[73] The second consequence of the invocation of the disputes resolution procedures, which is stipulated in Clause 15.1(a)(iii), is that a stand fast arrangement will apply: the workers will continue work as usual and the status quo which applied on the project immediately prior to the dispute arising will be maintained until the dispute is resolved at one of the steps provided for in Clause 15.1(b). In the present circumstances this requires the respondent to retain the 4 on 4 off roster for those electricians presently working that roster until the disputes resolution procedure had led to a resolution of the dispute either by agreement or arbitration.

[74] It follows from what I have said that the CEPU has notified the respondents of a dispute or grievance which attracts the operation of Clause 15.1 of the Agreement. The consequences are that they are required to participate in the settlement procedures prescribed by Clause 15.1(b) and, until the disputes and grievances identified by the CEPU have been resolved, they must not implement the new rostering arrangements."

[27]As earlier stated, one of the decisions referred to by CUB was AFMEPKIU v Ardmona Foods Ltd. In that matter, the agreement under consideration contained a grievance and disputes resolution procedure (clause 7.3) which provided that "In order to allow for the peaceful resolution of grievances the parties will continue with normal operations while this process is being followed and the status quo as existed immediately before the dispute will remain while the dispute is being resolved". The award which applied to the employer and employee in question entitled the employer to transfer any employee to a different shift on 48 hours notice. The question to be determined was whether a direction to a particular employee to change shifts was stayed by the operation of the status quo provision once the direction had been put into dispute. The Court determined that it was not:

"[52] In my view, the key to this part of the Union's claim is to be found in the expression "normal operations" in cl 7.3. In its context in a clause construed in accordance with the principles outlined at[26]-[27] above it signifies that work will continue without any exceptional or unusual action on either side; see eg Peak Trailer & Chassis v Jackson [1967] 1 WLR 155. In the case discussed at [50] above, the withdrawal of the long prong forklift drivers from an area in which they had usually been employed was not normal in this sense. On the other hand, the susceptibility of employees to work different shifts at the direction ofArdmonawas, I consider, a normal incident of employment as recognised by cl 26.6 of the Food Preservers' Award. It did not cease to be "normal", in the meaning I have accorded to the word, upon a particular employee's protesting about a specific direction.

[53] I am reinforced in this conclusion by the consideration that the contrary construction would allow an individual employee, by protesting against a permissible direction of the employer, to compel the employer to preserve in minute detail the entire pre-direction working environment of that employee until, possibly, the whole dispute resolution process described at [25] above had been exhausted upon the making of a decision or recommendation by the Commission."

[28] It is not easy to reconcile these two decisions. In the first, a status quo provision was construed as preventing the employer from implementing a workplace change which it was otherwise entitled to implement under the agreement in question until the disputes resolution procedure steps had been completed. In the second, the existence of an award entitlement to make the workplace change in question was characterised as a "normal incident of employment" (and therefore, presumably, part of the status quo), with the result that the status quo provision was determined not to stay the implementation of the change. We note that attention of the Court in Thiess does not appear to have been drawn to the earlier decision of Ardmona.

[29] We are inclined to the view that the "status quo" provision in Appendix C, applying the ordinary meaning of the expression, would, read in isolation, operate to stay the implementation of any workplace change that is put into dispute before it is implemented pending the completion of the various steps set out in Process (a) of Appendix C to resolve disputes. We note that clause (vi) of Process (a) provides that the process "should" be completed within five working days, so the result of this approach could not be regarded as so oppressive to the employer as not to have been intended.

[30] However in the case of issues concerning staffing levels, we consider that it is necessary to read Appendix C in the context of the specific provisions of Appendix I. As earlier stated, CUB submitted that Appendix I confers a right upon United Voice that does not exist in relation to disputes about any other issue, namely the right to not unreasonably withhold consent to ongoing changes in staffing numbers connected with changes in technology or operational requirements. Where such consent is withheld, CUB submitted, it is necessary for CUB to utilise the disputes resolution procedure in Appendix C to approach this Commission for an arbitrated determination that United Voice's withholding of consent was unreasonable before it can change staffing levels on an ongoing basis. The effect of that submission is that, absent a contrary determination by this Commission, United Voice has a right to permanently stay on reasonable grounds changes to staffing levels arising from changes to technology or operational requirements. United Voice did not contest the correctness of this submission. We accept that submission as properly reflecting the text and the apparent intention of Appendix I.”

[22] The parties have referred to the Full Federal Court decision in United Voice v Valspar (WPC) Pty Ltd, 7 where the Court considered a status quo provision which specifically defined the status quo as “the action giving rise to the dispute being withdrawn, and the situation immediately prior to the action giving rise to the dispute applying until the dispute is settled”.8 Such a provision gives rise to little doubt about what is referred to in terms of the “status quo”.

[23] On the basis that clause 3.2 does not specifically define what it is that has to happen or be preserved whilst a dispute is being resolved, I have considered the concept of “normal work” and “existing conditions” in the context of the relevant provisions of the Agreement and the circumstances of this dispute.

The Employee position

[24] There is limited information before me relative to the position of employees with respect to the changed starting times. It is absolutely clear that United Voice has members who are affected by, and concerned about the revised starting time. There is nothing before me that establishes the majority employee position or whether there are particular and specific employee concerns that are relevant to a consideration of the “status quo provisions” in clause 3.2.

The 2014 dispute

[25] The December 2014 dispute notification lodged by Allwater related to changes sought by the employer in the form of introduction of afternoon work and a change from 7-day rosters to 5-day rosters. I do not consider that the change in starting times which is at issue here was sought at that time, or considered to be part of that 2014 dispute. That dispute was heavily directed at issues associated with the loss of leave and other entitlements associated with seven day roster work. Additionally, I do not consider that the Allwater undertaking to review rosters as part of the agreement renegotiation process represented an undertaking not to exercise the discretion inherent in clause 4.2 such that a normal day’s work is to be determined at the discretion of the employer, between 6.00 a.m. to 6.00 p.m. Had it been the case that the change now proposed involved the matters identified in the 2014 dispute notification, a different conclusion could apply. This reservation would extend to changes to the normal days of work for employees working at Head Office, a regional plant, or a regional office because the 2014 dispute clearly identified issues associated with proposed roster changes which involved work being done on different days of the week or different roster arrangements.

Relevant Agreement provisions

[26] Whilst this decision does not represent a determination of the entirety of the dispute, I have briefly considered the extent to which any of the Agreement provisions referred to by the parties are relevant to the application of the asserted “status quo provision”.

Clause 4.2

[27] This clause establishes broad parameters within which ordinary hours may be worked. It refers to exceptions. It provides Allwater with the discretion to determine ordinary hours, to be worked continuously, except from breaks between 6.00 a.m. and 6.00 p.m. I note that other exceptions are provided for in this clause but that these do not appear to be relevant to this issue.

[28] Clause 4.2 must be considered in the context of clause 4.3 “Shift Work”. This clause defines and deals with shiftwork in the form of afternoon, night/early shifts and continuous shift work. Those arrangements are defined in clause 4.3.1 in the following terms:

“4.3.1. Definitions
For the purpose of this clause:
“Afternoon Shift” means any shift commencing after 12:00 noon and finishing after 6:00 pm and at or before midnight.
“Night/Early Shift” means any shift finishing subsequent to midnight and at or before 8:00 am.
“Continuous work” means work carried on with consecutive shifts of Employees throughout the 24 hours of each of at least six consecutive days without interruption except during breakdowns or meal breaks or due to unavoidable causes beyond the control of the Company.”

[29] I note that clause 4.3 does not define a “shift worker”, but nevertheless refers to various employees as “shift workers”. It seems to me that this clause, which establishes various hours arrangements for shift workers working continuous work shifts and working on other than continuous shift work, must be read on the basis that these arrangements apply to the employees defined in clause 4.3.1. If the provisions of clause 4.3 are taken to apply to all employees, clause 4.2 would be a redundant provision.

[30] In its submissions United Voice has referred to “changed shift times for employees”. I am unable to characterise the employees who, prior to May 2015, commenced work at 7.30 a.m. but who have subsequently been required to commence work at 9.30 a.m. as shift workers for the purposes of clause 4.3. Clause 4.3.2 deals with ordinary hours of work for continuous work shifts. Clause 4.3.3 deals with “Hours-Other than Continuous Work”. I think this provision must logically refer to the “Afternoon Shift” and “Night/Early Shift”.
[31] Clause 4.3.4 and 4.3.5 state:

“4.3.4 Rosters

Shift rosters will specify the commencing and finishing times of ordinary working hours of the respective shifts. Rosters will be made available to Employees’ seven (7) days prior to the shift commencing.

4.3.5 Variation by Agreement

The method of working shifts and the time of commencing and finishing shifts once having been determined by the company may be varied by agreement between the Company and the majority of the Employees concerned, or in the absence of agreement by seven (7) days notice of alteration given by the Company to the Employees.”

[32] As I have indicated, I consider that these provisions must be taken to apply to shift workers consistent with the definitions in clause 4.3.1. Again, if these provisions are applied unilaterally, clause 4.2 becomes redundant. This conclusion is enhanced by the provisions of clause 4.3.8 which specify separate arrangements for overtime applicable to shift workers.

[33] Clause 4.6 deals with overtime, and commences on the basis that it states:

“This clause applies to employees engaged in accordance with clause 4.2 This clause does not apply to shift workers. Payment of overtime for shift workers is covered by clause 4.3.8.”

[34] This provision confirms that the concept of a “shift worker” is addressed in clause 4.3.8; I also note that, with the exception of clause 4.9 which addresses meal breaks and specifies arrangements for shift workers on continuous work, the remainder of clause 4 deals with generally applicable hours arrangements.

[35] Consequently, I have concluded that clause 4.2 provides Allwater with the discretion to specify and change starting times within the nominated spread of ordinary hours.

Clause 4.6.4

[36] This clause states:

“4.6.4. Call Back

Employees who are not rostered on call who are recalled to work overtime after leaving the Company’s premises (whether notified before or after leaving the premises) will be paid for a minimum of three (3) hours work at the appropriate rate for each time the Employee is so recalled. The Company may require the Employee to undertake other emergency work in addition to the “call out” work as part of the three (3) hour call back.

This sub-clause will not apply in cases where it is customary for an Employee to return to the Company’s premises to perform specific work outside the Employee’s ordinary working hours, or where the overtime is continuous (subject to a reasonable meal break) with the completion or commencement of ordinary working time.

Where an Employee is recalled to duty, the Employee will be paid overtime as from the time the Employee leaves home until they return.

● The Company agrees that it is inappropriate to call an Employee at an unreasonable hour during the night when they are not on call.

● The Company will make every effort to ensure that the on call crew finishes work at 4:00 pm or soon after to ensure that they are able to respond to after-hours work demands. In the event that the incoming work is too much for the on call crew to cover, the Company will make arrangements to complete the necessary work requirements which may including recalling an Employee or Employees back to work.

● The Company recognises that Employees may or may not want to work additional overtime (i.e. call back) when they are not on call and therefore will facilitate a volunteer list for call back on a regular basis. When the Employee records their name on the list they agree to receive a phone call after hours (prior to 11:00 pm) to either accept or reject an opportunity for a call back.

● If the On Call Supervisor calls the Employee prior to11:00pm and the Employee agrees to be called back either immediately or during the night, the Employee will be paid the relevant 1 in 3 daily on call allowance regardless of whether they are then subsequently required to attend. If the Employee is subsequently required to attend a job (i.e. this may required a second call to be received after 11:00 pm) they will also be paid a minimum of three (3) hours at double time.”

[37] United Voice assert that “this clause has the effect of ensuring that any employee rostered as “on-call” will have the opportunity to have an appropriate rest break before being called back to work in the evening. Plainly by arranging for work to finish at 6.00 p.m., Allwater will not be making “every effort” to ensure work concludes at around 4.00 p.m. In this manner, the change to shift times contravenes the agreement.” 9 United Voice continues, to say: “Clause 4.6.4 also provides that Allwater may recall employees other than those who are “on-call” if the work demands for the “on-call crew” become excessive. The rationale for the 4.00 p.m. finish time, namely to ensure an appropriate rest break between periods of work, applies equally to those individuals called to work at short notice with the “on-call crew” is unable to complete the work.”10

[38] Allwater responded to this by advising that:

“During consultation, the relevant employees requested that the revised hours coincide with their existing on-call roster commitment. The relevant employees were consulted as to whether this was their preference, or whether they would prefer the revised hours to be scheduled when they are not rostered on-call in accordance with clause 4.6.4. The Respondent has determined the manner in which the employees are rostered on-call based on this feedback as requested by the relevant employees. The Respondent is also happy to revert to alternative arrangements where the revised hours will not coincide with on-call requirements, if required.” 11

[39] If it was the case that, during the weeks when an employee was required to commence work at 9.30 a.m. rather than 7.30 a.m., that employee was also rostered to be on-call, it is clear that the requirement that Allwater makes every effort to ensure that work was finished by or soon after 4.00 p.m., would not be met. However, if it is the case that the current arrangement reflects employee preferences and Allwater is prepared to change the rostering of on-call work, it does not apply to those circumstances where an employee starts work at 9.30 a.m., I am unable to see where this breaches the provisions of clause 4.6.4.

Clause 3.1.2 and clause 3.6

[40] Clause 3.1 specifies obligations relating to the introduction of change in terms that are generally consistent with the model consultation provisions in the FW Act. Clause 3.1.1 establishes an obligation on Allwater to notify employees affected by a change which is likely to have a significant effect on employees. For this purpose significant effects include the alteration of hours of work. Clause 3.1.1 then states:

“... An exception to this is where the Agreement makes provision for alteration of any of the matters referred to in this sub-clause; an alteration must be deemed not to have significant effect.”

[41] Clause 3.1.2 details Allwater’s obligation to consult with employees about the changes referenced in clause 3.1. This consultation requirement requires Allwater to discuss the effects the changes are likely to have on employees and the measures to minimise the adverse effects of those changes. This obligation extends to the provision of written advice and the requirement for Allwater to give prompt consideration to matters raised by the employees in relation to the changes.

[42] Clause 3.6 of the Agreement states:

“3.6. FAMILY FRIENDLY ENVIRONMENT

The parties to this Agreement are committed to facilitating family friendly working conditions where consistent with the needs of both the individual and the business.
The Company aims to provide job security and flexibility of employment for all Employees. The Company also aims to provide family friendly provisions for all Employees particularly those Employees with family responsibilities. General family friendly provisions include restrictions on excessive hours of work, an Employee Assistance Program and study assistance.
Employees with family responsibility are also eligible to apply for:

● 48/52 arrangement (i.e. a “purchase leave” scheme);
● part-time work;
● job share;
● maternity/adoption leave in line with clause 7.7
● parental leave
● paid paternity leave in line with clause 7.7;
● paid dependent care if attending out of hours meetings or training, and
● additional facilities for nursing mothers

Any application for a change in working arrangements (i.e. 48/52, part-time, work from home or job share) is contingent upon meeting business needs.

The paid maternity/adoption and paternity leave provisions outlined herein will be payable in addition to any legislated requirement for paid parental or maternity leave.”

[43] United Voice asserts that Allwater has not outlined measures to minimise the adverse effects of the change employees. Furthermore, United Voice assert that Allwater has failed to give the “prompt consideration” to matters raised by the employees and, particularly a proposed compromise which would involve a trial in which one roster per cycle would commence at 9.30 a.m.

[44] The Allwater position is, firstly, that clause 3.1 is not applicable because 3.1.1 makes it clear that the provisions of clause 4.2 represent an exception such that the employer is clearly able to alter the commencement time for ordinary hours of work. Secondly, and notwithstanding this, Allwater assert that, between 28 April 2015 and 18 May 2015 it engaged in consultations with United Voice and the relevant employees. In this respect, Allwater refers to its correspondence of 15 May 2015. 12 Allwater asserts that it amended the proposed changes to allow early starts for employees who are rostered on weekends and public holidays.

[45] It is not necessary that I form a concluded view about whether clause 3.1 is applicable to the changed starting times because of the exclusion provisions set out in clause 3.1.1. That is an issue which may need to be separately considered. What is clear is that Allwater provided written advance warning and an explanation of its proposed change to starting times and then entered into discussions with employees and United Voice. Accordingly, there could be no element of surprise associated with the changed starting times. I consider that the issue of compliance with clause 3.1 and, for that matter, clause 3.6 must, at this time, some four weeks after the change became operational, be regarded as a neutral consideration. Simply put, it may be the case that the ultimate resolution of any ongoing dispute requires further consideration of employee concerns and further changes but I am unable to conclude that the consultation provisions, or the obligation to facilitate family friendly working conditions with these are consistent with the needs of both the individual and the business compels a particular construction of the contended “status quo provision”.

Conclusion

[46] Having considered each of these factors, I have concluded that there is no particular provision in the Agreement which clearly prohibits the alteration of starting times within the designated spread of hours. Furthermore, the provisions of clause 4.2 establish the specification of those starting times is the clear prerogative of Allwater. The employee concerns and/or other provisions of the Agreement mean that the 25 May 2015 instruction that these ordinary hours are changed on a rotating basis so that employees commence at 9.30 a.m. rather than 7.30 a.m. on two out of five or six weeks, may be challenged, but any such challenge would have to be assessed against the clear discretion available to Allwater in clause 4.2.

[47] The particular circumstances of this matter are such that I have adopted the position that the concept of “normal work” performed under “existing conditions” should, in this situation, refer to an arrangement which is a normal incident of employment consistent with clause 4.2 of the Agreement. On this basis, I am not prepared to require Allwater to revert to the starting time arrangements which applied prior to 25 May 2015.

[48] The application will be listed for a directions conference to determine future programming arrangements.

SENIOR DEPUTY PRESIDENT

1 Form F10, paragraph 2.1.

3 Allwater submissions dated 5 June 2015.

4 Allwater JV Employees Enterprise Agreement 2012-Networks Agreement, clause 3.2.

5 Allwater JV Employees Enterprise Agreement 2012-Networks Agreement, clause 4.2.

6 [2014] FWCFB 4104.

7 [2014] FCAFC 34.

8 ibid, paragraph 56.

9 United Voice submissions dated 5 June 2015 paragraph 37.

10 United Voice submissions dated 5 June 2015 paragraph 39.

11 Allwater submissions in reply dated 9 June 2015 paragraph 10b.

12 Annexure D to the United Voice submissions dated 5 June 2015.

Printed by authority of the Commonwealth Government Printer

United Voice v Transfield Services (Australia) Pty Ltd T/A Allwater JV

[2015] FWC 4177

26 JUNE 2015

DECISION