United Voice v Valspar (WPC) Pty Ltd
[2013] FCCA 1437
•27 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| UNITED VOICE v VALSPAR (WPC) PTY LTD | [2013] FCCA 1437 |
| Catchwords: INDUSTRIAL LAW – Dispute about annual leave – Fair Work Act 2009 (Cth) – employer requiring employees to take annual leave – possible conflict between Act and enterprise agreement – finding that there is no such conflict – clause in enterprise agreement found to allow employer to require employees to take annual leave in certain circumstances. |
| Legislation: Corporations Act 2001 (Cth) |
| Applicant: | UNITED VOICE |
| Respondent: | VALSPAR (WPC) PTY LTD |
| File Number: | ADG 82 of 2012 |
| Judgment of: | Judge Simpson |
| Hearing date: | 15 April 2013 |
| Date of Last Submission: | 16 April 2013 |
| Delivered at: | Adelaide |
| Delivered on: | 27 September 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Dean |
| Solicitors for the Applicant: | United Voice |
| Counsel for the Respondent: | Mr A Lazarevich |
| Solicitors for the Respondent: | Australian Business Lawyers & Advisors Pty Ltd |
ORDERS
The Amended Application filed 25 March 2013 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 82 of 2012
| UNITED VOICE |
Applicant
And
| VALSPAR (WPC) PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
In these proceedings the applicant union, United Voice, seeks declarations that the respondent employer has contravened various provisions of the Fair Work Act 2009 (Cth) (“the Act”) and clauses in an enterprise agreement, namely the Wattyl Group Enterprise Agreement 2010 (“the Enterprise Agreement”).
The Act and the Enterprise Agreement both have provisions that deal with annual leave. Central to this dispute is the resolution of an apparent conflict between these two sets of provisions. The applicant also seeks the following:
·the imposition of pecuniary penalties for contraventions that may be found proven;
·a permanent injunction restraining the respondent from requiring United Voice members from taking annual leave unless they agree or a term of the Enterprise Agreement or the Act enables the respondent to require that the United Voice members take annual leave; and
·an order that the respondent employer compensate certain of its employees for the economic and non-economic losses that resulted from the respondent’s actions.
The final orders sought in the applicant’s amended application filed on 25 March 2013 are as follows:[1]
[1] Somewhat confusingly the applicant’s amended application also annexed a minute of orders sought that deal specifically with the alleged contraventions. These proposed orders of the applicant are dealt with later in these reasons.
“(1)Pursuant to s.545(2)(a) and s.545(2)(b) of the Fair Work Act that the respondent is ordered to compensate United Voice members employed by the respondent for economic and non-economic loss as a result of the respondents actions described in paragraph 5, below:
(2)Pursuant to s.545(2)(a) of the Fair Work Act and s.8(3) of the Federal Magistrates Act 1999 the respondent is permanently injuncted from requiring United Voice members in Schedule A to take annual leave for the purpose of reducing production.
(3)Pursuant to s.546 and s.539(1) that the respondent is ordered to pay a pecuniary penalty to United Voice in respect of each contravention of a civil provision by the respondent. The contraventions alleged are set out in paragraph 1 the proposed minutes of order contained in Schedule B.
(4)Pursuant to s.546 and s.539(1) that the respondent is ordered to pay a pecuniary penalty to each United Voice member affected by a contravention of civil remedy provision, with respect to each contravention. The contravention alleged are set out in paragraphs 1 of the proposed minutes of order contained in Schedule B.
(5)Declarations that the Respondent breached the following provisions of the Fair Work Act 2009, in the terms set out in paragraphs 1 of the proposed minutes of Order contained in Schedule B:
a.Section 44(1) of the Fair Work Act 2009 (Cth);
b.Section 50 of the Fair Work Act 2009 (Cth);
c.Section 88(1) of the Fair Work Act 2009 (Cth);
d.Clause 34(b) and clause 34(c) of the Wattyl Group Enterprise Agreement 2010; and
e.Clause 47 of the Wattyl Group Enterprise Agreement 2010.
(6) An order that the respondents pay the applicant’s costs.
(7) Liberty to apply.”
The respondent opposes each of these proposed orders.
Brief background facts
The respondent, formerly known as WP Crowhurst Pty Ltd trading as Wattyl, operates a paint manufacturing business.
In February/March 2012, the respondent assessed that its stock levels of paints were nearing maximum capacity at the Kilburn site. If production continued at its current rate of production, it would soon reach maximum capacity. It was decided by the respondent that it would be necessary to reduce production and to carefully control costs or the company would start operating at a loss.
It was decided by the respondent that the manufacturing part of the business would be shut down for one day per fortnight over an eight week period. This would require that each employee would take four separate days annual leave together with four rostered days off over that eight week period. The result would be that the respondent would be reducing its paint production at the Kilburn site over the period by 400,000 litres, about 9% of normal production.
If the shutdowns were not pursued, the respondent realised that it would have to look at other options, including voluntary or forced redundancies. The respondent considered that the alternatives to shutdowns would be bad for the employees and bad for the business. The respondent did not want to lose its skilled staff.
On 29 March 2012, the respondent held a meeting with employees on the Kilburn site to explain the proposed plan for temporary eight day fortnights and the reasons for them. On the same day, a memorandum was published by the respondent and placed on the notice board for all employees to see. The memorandum identified the employees that would be required to take holidays and the dates of the holidays that would need to be taken.
The employees were unhappy about being required to take these short holidays as they wished to take their annual leave in the normal way, namely, in large blocks.
The dispute raises questions of the interaction of Chapter 2, Part 2-2 which is the section of the Act dealing with the National Employment Standards (“NES”), and certain provisions of the Enterprise Agreement.
Findings
The parties have tendered a Statement of Agreed Facts (“the Agreed Facts”). On the basis of the Agreed Facts and the affidavit material relied upon, I make the following findings:
a)The respondent, Valspar (WPC) Pty Ltd, is a privately owned company, incorporated in accordance with the Corporations Act 2001 (Cth);
b)The respondent operates across Australia;
c)The respondent operates in the paint industry, manufacturing, distributing and selling paint and associated products;
d)The respondent employs approximately 1,000 employees nationwide and 39 employees at the Kilburn site;
e)The matter, the subject to this action, pertains to employees of the respondent who work at the respondent’s Kilburn site at 560 Churchill Road, Kilburn in the State of South Australia;
f)The manufacturing site at Kilburn makes paint and paint related products. The site has capacity to make approximately 120,000 to 130,000 litres of paint per day;
g)The employees are employed in the occupation of paint manufacturing and are employed in a range of classifications to be found in the Enterprise Agreement;
h)There are 25 employees employed on day shift by the respondent, 14 employees employed on afternoon shift by the respondent and 4 employees employed on night shift by the respondent;
i)The employees of the respondent are members of United Voice;
j)The relevant industrial instrument governing the employment of employees of the respondent is the Enterprise Agreement;
k)On 29 March 2012, Mr Brett Golding, the respondent’s South Australian Manufacturing Manager, sent to Mr Boyd MacRae, an organiser employed by the applicant, an email with an attached internal announcement dated 29 March 2012. The internal announcement sought volunteers for voluntary redundancy. It further advised that if there were insufficient voluntary redundancies that redundancy would take place on a ‘last on/first off’ basis subject to competency based exceptions and the ranking system;
l)Later in the day, employees were advised that for commercial reasons, the respondent had decided that the current 9 day a fortnight would change to an 8 day fortnight over the period 30 April 2012 to 25 June 2012. The extra day that employees were required to take would be counted as annual leave;
m)The employees and the applicant were understandably unhappy about the respondent requiring them to take short holidays rather than being able to take larger block holidays;
n)On 24 May 2012, employees were informed by way of an internal memorandum from the respondent that a close down period would occur for a week period. Employees were required to take annual leave commencing 1 July 2012 until 6 July 2012 (inclusive) and that further individual days of annual leave would be required to be taken during the period of 8 July 2012 until 31 August 2012;
o)On 19 July 2012, employees were informed by way of an internal memorandum that a close down period would occur for a four day period. Employees were required to take annual leave commencing on 20 August 2012 until 24 August 2012 (inclusive) and that further individual days of annual leave would be required to be taken during the period 2 September 2012 until 30 September 2012;
p)Employees were informed of a further close down over the Christmas period on 20 November 2012 by way of an internal memorandum dated 20 November 2012;
q)On each occasion that there was a requirement for employees to take annual leave, at least one United Voice member took annual leave in accordance with the requirement.
The relevant provisions of the Enterprise Agreement
Clause 34 of the Enterprise Agreement deals with annual leave. It is in the following terms (emphasis added):
“(a)All full time weekly hired employees will be entitled to 4 weeks of annual leave for each 12 months service. Annual leave will accrue progressively during the year of service according to the ordinary hours of work. Annual leave accumulates year to year. Annual leave will be paid for at the ordinary time rate of pay as prescribed by this Agreement for the employee’s classification.
(b)Subject to sub clause (c) of this clause, annual leave will be given and taken at such times and in such periods as are required by Wattyl provided that other than by mutual consent, annual leave will be given in one continuous period of 4 weeks or not more than 2 periods one of which will be not less than 2 weeks in duration.
Colours and Chemicals: Notwithstanding any other provision is this agreement at Colours and Chemicals, Wattyl is entitled to direct employees to use 10 days of their annual leave per year to cover maintenance shutdown.
Further, employees are entitled to take 10 days annual leave per year at a time convenient to them. In addition, employees may elect to accrue the 10 days per year annual leave to be taken at a later date at a time convenient to them.
(c)Where Wattyl intends temporarily to close (or reduce to nucleus) an establishment or a section thereof for the purposes (inter alia) of allowing annual leave to the employees concerned or a majority of them Wattyl may give in writing to such employees one month’s notice (or in the case of any employees engaged after giving of such notice, notice on the date of the employee’s engagement) that the employer elects to apply the provisions of this sub clause, and then:
(i)Any such employee who at the date of closing is entitled to annual leave will be given such annual leave commencing on and from the date of closing and, in addition, will be paid holiday pay and annual leave loading for any period of employment after the accrual of his or her right to the annual leave and up to but excluding the date of closing;
(ii)Any such employee who at the date of closing is not entitled to annual leave will be given leave without pay on and from the date of closing and will be paid holiday pay and annual leave loading for that period of employment since the date of commencement thereof or the accrual of his or her last annual holiday (whichever is the later) and up to but excluding the date of closing, together with pay for any public holiday during such leave for which the employee is entitled to payment; and
(iii)The next annual leave qualifying period of employment for every such employee will commence as on and from the date of closing.
(d)In sub clause (c) “date of closing” in relation to each employee means the first day of annual leave or unpaid leave pursuant to sub clause (c).
(e)Annual leave will be in addition to public holidays provided for in this Agreement.
(f)An employee whose services are terminated will be entitled to all accrued leave or payment in lieu thereof.
(g)A shift worker permanently engaged on continuous rostered shifts or engaged on permanent night shifts for the whole of the year in respect of which leave is granted, will be entitled to five weeks leave in lieu of four as provided in sub clause (a) above and pro rata for any period less than one year.
(h)An employee will not accrue entitlement to an Allocated Day Off during Annual Leave.
(i)In addition to the annual leave entitlements of this clause, employees in NSW will be granted 2 additional annual leave days per calendar year and employees in Queensland, South Australia, Victoria and Western Australia will be granted one additional annual leave day per calendar year. The additional annual leave day for employees located in Victoria is in lieu of the union picnic holiday.”
Clause 47 of the Enterprise Agreement states (emphasis added):
“DISPUTES SETTLEMENT
47. DISPUTES SETTLEMENT PROCEDURE
a.The parties recognise that there is a need to put in place a procedure that will allow dispute issues to be dealt will (sic) in a timely and efficient manner. The parties further recognise that for any dispute resolution procedure to work the parties must approach settlement of the matter in issue in an open manner.
b.It is further recognised by the parties that once the dispute resolution procedure is invoked the status quo will remain until the dispute is settled. The status quo is defined 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”.
c.At each stage of the dispute resolution procedure the parties involved will have the power to settle the dispute.
d.The following dispute settlement procedure will apply to any matter in issue between Wattyl; its employees covered by this Agreement and the Union:
(i)Where a dispute arises, discussions will first take place between the site Union Delegate and the relevant site Manager or their nominees;
(ii)If unresolved, discussions will then take place between a state union official and the Wattyl site manager or their nominees;
(iii)If still unresolved, discussions will take place between a national union official or nominee and the Wattyl Employee Relations Manager or a nominated representative of Wattyl;
(iv)If still unresolved, the matter may be referred to Fair Work Australia for determination;
(v)Other than a dispute on a genuine safety issue the parties are committed to the resolution of all disputes without interruption to normal work.”
The relevant provisions in the Act
Sections 86 and 87(1) and (2) of the Act provides as follows:
“Section 86 Division applies to employees other than casual employees
86.This Division applies to employees, other than casual employees.
Section 87 Entitlement to Annual Leave
Amount of Leave
87(1)For each year of service with his or her employer, an employee is entitled to:
(a) 4 weeks of paid annual leave; or
(b) 5 weeks of paid annual leave if:
(i) a modern award applies to the employee and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards; or
(ii)an enterprise agreement applies to the employee and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards; or
(iii)the employee qualifies for the shiftworker annual leave entitlement under subsection (3) (this relates to award/agreement free employees).
Note:Section 196 affects whether FWA may approve an enterprise agreement covering an employee, if the employee is covered by a modern award that is in operation and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards.
Accrual of leave
87(2)An employee’s entitlement to paid annual leave accrues progressively during a year of service according to the employee’s ordinary hours of work, and accumulates from year to year.
Note:If an employee’s employment ends during what would otherwise have been a year of service, the employee accrues paid annual leave up to when the employment ends.”
Sections 88 to 90 of the Act provides as follows (emphasis added):
“Section 88 Taking paid annual leave
88(1)Paid annual leave may be taken for a period agreed between an employee and his or her employer.
88(2)The employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave.
Section 89 Employee not taken to be on paid annual leave at certain times
Public holidays
89(1)If the period during which an employee takes paid annual leave includes a day or part-day that is a public holiday in the place where the employee is based for work purposes, the employee is taken not to be on paid annual leave on that public holiday.
Other periods of leave
89(2)If the period during which an employee takes paid annual leave includes a period of any other leave (other than unpaid parental leave) under this Part, or a period of absence from employment under Division 8 (which deals with community service leave), the employee is taken not to be on paid annual leave for the period of that other leave or absence.
Section 90 Payment of annual leave
90(1)If, in accordance with this Division, an employee takes a period of paid annual leave, the employer must pay the employee’s base rate of pay for the employee’s ordinary hours of work in that period.
90(2)If, when the employment of an employee ends, the employee has a period of untaken annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.”
Section 44(1) of the Act states that an employer must not contravene a provision of the NES. An employer who contravenes a provision of the NES attracts a civil penalty. The NES are to be found in Part 2-2 of the Act, being ss.59 – 131 of the Act. The NES provides a set of minimum standards applying to employment of all employees.
Section 44 of the Act provides as follows (emphasis added):
“44 Contravening the National Employment Standards
(1)An employer must not contravene a provision of the National Employment Standards.
Note:This subsection is a civil remedy provision (see Part 4‑1).
(2)However, an order cannot be made under Division 2 of Part 4‑1 in relation to a contravention (or alleged contravention) of subsection 65(5) or 76(4).
Note 1:Subsections 65(5) and 76(4) state that an employer may refuse a request for flexible working arrangements, or an application to extend unpaid parental leave, only on reasonable business grounds.
Note 2:Modern awards and enterprise agreements include terms about settling disputes in relation to the National Employment Standards (other than disputes as to whether an employer had reasonable business grounds under subsection 65(5) or 76(4)).”
The Act provides in subs.93(3) that an employer may also require an employee to take annual leave in accordance with an enterprise agreement. Subsection 93(3) provides as follows:
“93 Modern awards and enterprise agreements may include terms relating to cashing out and taking paid annual leave
…
Terms about requirements to take paid annual leave
(3)A modern award or enterprise agreement may include terms requiring an employee, or allowing for an employee to be required, to take paid annual leave in particular circumstances, but only if the requirement is reasonable.
…”
Can the respondent require employees to take annual leave pursuant to clause 34(c)?
The respondent submits that it is entitled to require employees to take annual leave on the days that it specifies by reason of Clause 34(c) of the Enterprise Agreement. It submits that the phrase “inter alia” in that subclause are not words of limitation. They submit that the clause is intended to mean (and on its proper reading, does mean) that annual leave is one of many purposes that allows the respondent to activate the clause. It follows, they submit, that if the respondent wants to activate the clause for economic or operational purposes, it can lawfully do so.
The applicant submits that employees’ paid annual leave is governed by s.88 of the Act. Pursuant to that section, the employees may reach agreement with the respondent on a period of annual leave. If agreement is not reached, employees may request annual leave and the respondent must not unreasonably refuse the request.
The applicant submits that s.93(3) of the Act should be construed so that it is consistent with the language and purpose of all the provisions of the statue. The applicant refers to paragraphs 381 and 382 of the Explanatory Memorandum of the Fair Work Bill 2008 which deals with s.93(3). It states that the provision allows an employer to require an employee to take a period of annual leave and gives as examples an employee having to take leave to reduce the employee’s excessive level of accrual and an employer deciding to shut down the workplace over the Christmas/New Year period. It then, without attempting to provide an exhaustive list, identifies a number of matters that are relevant considerations in assessing the reasonableness of an employer’s requirement or direction. They are:
·The needs of both the employees and the employer’s business;
·Any agreed arrangement with the employee;
·The custom and practice in the business;
·The timing of the requirement or direction to take leave; and
·The reasonableness of the period of notice given to the employee to take leave.
The applicant submits that to the extent that the Enterprise Agreement purports to permit the respondent to unreasonably require an employee to take leave, the clause is without effect and cannot be relied upon. The applicant submits that in requiring employees to take leave without their agreement, the respondent breached s.88(1) of the Act.
The applicant submits that the respondent’s actions also breached the Enterprise Agreement. They submit that clause 34(c) is to be used for the purpose of allowing employees to take leave and that “… clause 34(c) ensures that a shutdown may occur for this purpose notwithstanding that there is some ancillary or peripheral purpose.”
Significantly, the Act does not allow an employer to require an employee to take annual leave. Section 93(3) of the Act does however, allow an enterprise agreement (or for that matter, a modern award), to have terms requiring an employee, or allowing for an employee to be required (by the employer) to take paid annual leave in “particular circumstances” but only if “the requirement is reasonable”.
The concession made by the applicant that the respondent is permitted to have ancillary or peripheral purposes for a shutdown is, in my view, properly made. What the respondent was doing in requiring employees to take holidays for the reasons mentioned above, was allowed by clause 34(c). Putting aside for the moment the issue of written notice, there was no breach of clause 34(c) merely by requiring the employees to take holidays. In the circumstances, the employer’s requirement that annual leave be taken was reasonable.
Whilst I am sympathetic to the position of the employees concerned as I realise that many, if not all, of them would prefer to take annual leave in larger blocks, a correct interpretation of the Act and the Enterprise Agreement permits the employer to act as it did. There was no contravention.
Contraventions
As part of the applicant’s Amended Application, the applicant provides a proposed minute of order that, in seven paragraphs, details the contraventions that are alleged. It is convenient to address the applicant’s allegations of contraventions by reference to each of these seven counts in turn.
Count 1
“(That the respondent) contravened s.44(1) of the Fair Work Act 2009 (Cth) on each of the dates listed in Appendix B to this order by contravening s.88(1) of the Fair Work Act 2009, being a National Employment Standard. Such contraventions occurred when the United Voice members listed in Appendix A took annual leave at the direction of the respondent on each of the dates listed on Appendix B to this order.”
On a plain reading of s.44(1) and s.88(1) of the Act it is not possible to contravene either subsection whether singly or unison.
Neither subsection prohibits an employer requiring an employee to take annual leave.
Clause 34(c) allowed the employer to require employees to take annual leave.
I find that this contravention is not made out.
Count 2
“(That the respondent) contravened s.50 of the Fair Work Act 2009 (Cth) on each of the dates listed in Appendix B to this order by contravening a term of an enterprise agreement, namely clause 34(b) of the Wattyl Group Enterprise Agreement 2010, when the United Voice members listed in Appendix A took annual leave, unpaid leave or long service leave at the direction of the respondent on the dates listed in Appendix B to this order.”
Clause 34(b) is expressed to be subject to clause 34(c). In requiring employees to take annual leave, the respondent was acting pursuant to clause 34(c). Therefore clause 34(b) has no relevance.
I find that the contravention is not made out.
Count 3
“(That the respondent) contravened s.50 of the Fair Work Act 2009 (Cth) on each of the days listed in Appendix B to this order by contravening a term of an enterprise agreement, namely clause 3(d) of the Wattyl Group Enterprise Agreement 2010, when the United Voice members listed in Appendix A took annual leave at the direction of the respondent, on the dates listed in Appendix B to this order in a manner that was more detrimental to United Voice members than provided for under s.88(1) of the Fair Work Act 2009 (Cth), being a National Employment Standard. The direction to take the leave was more detrimental in that under s.88(1) of the Fair Work Act 2009 employees cannot be directed to take such annual leave.”
On a plain reading of s.50 of the Act, it is not possible to contravene it. The section is a statement creating an obligation. Any contravention will have to be in relation to an obligation created by the Enterprise Agreement.
On a plain reading of clause 3(d) of the Enterprise Agreement, it is not possible to contravene it. The subclause is a statement of fact.
On plain reading of s.88(1) of the Act, it is not possible to contravene the subsection. It merely states how leave may be taken.
I find that this contravention is not made out.
Count 4
“(That the respondent) contravened s.50 of the Fair Work Act 2009 (Cth) on each of the dates listed in Appendix B to this order by contravening a term of an enterprise agreement, namely clause 34(c) of the Wattyl Group Enterprise Agreement 2010, when the United Voice members listed in Appendix A took annual leave, unpaid leave or long service leave at the direction of the respondent on the dates listed in Appendix B to this order.”
On a plain reading of s.50 of the Act, it is not possible to contravene it. The section is a statement creating an obligation.
There was no contravention of clause 34(c) of the Enterprise Agreement as that clause allowed the respondent to require employees to take annual leave on days identified by the respondent providing the respondent had the intention of temporarily closing the establishment or a section of it for purposes that included allowing the employees to take annual leave. The evidence shows that the respondent had the necessary purposes.
I find that this contravention is not made out.
Count 5
“(That the respondent) contravened s.50 of the Fair Work Act 2009 (Cth) by contravening a term of an enterprise agreement, namely clause 34(c) of the Wattyl Group Enterprise Agreement 2010, with respect to the shut downs announced on 29 March 2012 by requiring that the United Voice members listed in Annexure A of this order take annual leave and unpaid leave during the period 30 April 2012 until 25 June 2012 without giving one month’s notice in writing of the respondent’s decision to apply the provisions of clause 34(c).”
There can be no contravention of s.50 of the Act for the reasons mentioned earlier in these reasons.
This count is similar to counts 1, 2 and 3 but seems to be aimed at whether the respondent gave one month’s written notice.
There is no evidence from the applicant that the respondent failed to give proper notice. There are 49 employees listed in Annexure A. Affidavits have been tendered as evidence from only five of these 49 employees. The five employees are Wildman, Ashby, Kolman, Kosa and Garuccio. None of these individuals stated in their affidavits that they did not receive proper notice.
I find that it is not proven that the employees did not receive proper notice as required in clause 34(c) and that therefore I find that the contravention is not made out.
Count 6
“(That the respondent) contravened s.50 of the Fair Work Act 2009 (Cth) by contravening a term of an enterprise agreement, namely clause 47 of the Wattyl Group Enterprise Agreement 2010. The respondent breached s.47 of the Wattyl Group Enterprise Agreement 2010 by failing to acknowledge that a dispute had been raised by United Voice and subsequent to that, the respondent failed to maintain the status quo that existed prior to the announcement of the shutdown days, namely 29 March 2012, instead requiring that the United Voice members listed in Annexure A of this order take annual leave on the dates listed in Appendix B to this order.”
There can be no contravention of s.50 of the Act for the reasons mentioned earlier in these reasons. (See counts 2, 3, 4 and 5)
As I understand the applicant’s complaint, it is that the respondent contravened clause 47 when it went ahead with requiring employees to take annual leave notwithstanding that the applicant and the employees had indicated that it was opposed to that course. The applicant says that the status quo that existed prior to the announcement of the shutdowns should have continued until the dispute was settled.
Clause 47 of the Enterprise Agreement aims at getting the parties to settle any disputes. If the matter cannot be resolved, it may be referred to Fair Work Australia for determination (see clause 47(a)(iv)). In my opinion, this dispute settlement clause is not capable of being contravened as parties to the Enterprise Agreement cannot be forced to settle their dispute. The parties are not expected to remain in negotiations forever in the event that settlement cannot be reached.
The parties had had discussions about the dispute but had reached an impasse. Both parties had differing views about whether a temporary shutdown should occur. Nothing remained in clause 47 that could have led to a binding resolution of the impasse.
I find that the respondent did not contravene clause 47 of the Enterprise Agreement.
Count 7
“(That the respondent) contravened s.88(1) of the Fair Work Act 2009 on each of the days listed in Appendix B to this order when the United Voice members listed in Appendix A took annual leave at the direction of the respondent on the dates listed in Appendix B to this order for the following reasons.
i.There was no genuine agreement between employees and the employer for annual leave to be taken on the days listed in Appendix B of this order.
ii.The respondent directed employees to take annual leave in a manner not permitted by a term of an enterprise agreement, namely clause 34(b) of the Wattyl Group Enterprise Agreement 2010.
iii.The Respondent directed employees to take annual leave, unpaid leave and long service leave in a manner not permitted by a term of an enterprise agreement, namely clause 34(c) of the Wattyl Group Enterprise Agreement 2010.”
There is no contravention of s.88(1) as it does not attempt to prohibit employers directing employees to take annual leave pursuant to clause 34(c) of the Enterprise Agreement. In fact, on a plain reading of s.88(1) it is not a subsection that is capable of being contravened.
I find that the contravention claimed is not made out.
Conclusions
It is clear from these reasons that I do not consider any of the alleged contraventions to be proven. They will be dismissed.
I have also found earlier in these reasons that the respondent was acting lawfully when it exercised its power to use clause 34(c) of the Enterprise Agreement to require its employees to take annual leave on the days identified. As a result, the applicant’s applications for declarations, injunctions and compensation to the employees should also be dismissed.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Simpson
Associate:
Date: 27 September 2013
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