United Workers' Union v Lactalis Australia Pty Ltd

[2020] FWC 1475

[2020] FWC 1475

The attached document replaces the document previously issued with the above code on 20 March 2020 to correct typographical errors at paragraphs [34] and [37].

Associate to Deputy President Mansini.

23 March 2020.

[2020] FWC 1475

FAIR WORK COMMISSION

DECISION

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

United Workers' Union
v
Lactalis Australia Pty Ltd
(C2020/691)

DEPUTY PRESIDENT MANSINI MELBOURNE, 20 MARCH 2020

Dispute about matters arising under the enterprise agreement.

[1] This decision concerns an application made by the United Workers’ Union (Union) under s.739 of the Fair Work Act 2009 (Act) for the Commission to deal with a dispute in accordance with the disputes settlement procedure at clause 41 of the Parmalat TWU / NUW Lidcombe Enterprise Agreement 2018 – 2021 (the Agreement).

[2] The employer respondent is Lactalis Australia Pty Ltd (Employer) which owns and operates a dairy production and distribution facility at Birnie Road, Lidcombe, in the State of New South Wales (Lidcombe Facility).

[3] The present dispute concerns a decision by the Employer to change the days of the week when part-time employees are rostered to work, in response to a reduction in milk supply which impacted production. Specifically, the Employer has decided that part-time distribution employees will no longer be rostered to work on a Sunday but there will be no variation to the agreed number of ordinary hours. The Union contends that mutual agreement is required in these circumstances. The Employer opposes, on the basis that consultation and 7 days’ notice in writing is all that is required.

Preliminary matters

[4] The application was filed on 7 February 2020 with a request for an urgent conference.

[5] Also on 7 February 2020, a telephone conference was convened before me and attended by representatives of the Union and the Employer. There was no agreed resolution of the dispute. The parties agreed to arbitration and the Employer undertook not to implement the roster change until the matter is determined. A program for the exchange of materials was agreed.

[6] The parties filed an agreed question for arbitration, agreed statement of facts and submissions. The Union filed a witness statement of Mr Tom Addy (Union Organiser) and the Employer filed a witness statement of Ms Zena Jaafar (Senior Human Resource Advisor, Lidcombe Facility). On 19 March 2020, in accordance with the wishes of the parties, I heard oral submissions by telephone. Neither witness was required for cross examination.

[7] There is no dispute and I am satisfied that the Agreement:

a) covers and is binding on the Union (formerly known as the National Union of Workers) in accordance with s.201(2) of the Act, pursuant to the decision of Deputy President Dean to approve the Agreement in [2018] FWCA 6932 and clause 1(iii) of the Agreement;

b) covers, applies to and is binding on the Employer (formerly known as Parmalat Australia Pty Ltd) and its employees at the Lidcombe Facility (including part-time distribution employees) pursuant to clause 1(i) and (ii) of the Agreement.

[8] There is also no dispute, and I am satisfied, that:

a) the dispute is about a problem, complaint, query, misunderstanding or grievance arising under the Agreement, such that the dispute resolution procedure at clause 41 is invoked; and

b) the prerequisites to the Commission’s involvement at steps 1, 2, 3 and 4 have first been followed,

such that the Commission is empowered to resolve the dispute by way of arbitration in accordance with Step 4 of the procedure at clause 41 of the Agreement and s.739 of the Act.

The agreed question

[9] The parties agreed that the dispute could be resolved by the Commission determining the following question:

“Does the Respondent require a part-time employee’s agreement to implement a permanent roster change under Clause 6(iii) of the Parmalat TWU/NUW Lidcombe Enterprise Agreement 2018-2021?”

[10] The initial application also disputed compliance with the consultation, status quo and new shift roster and union delegate provisions of the Agreement (clauses 38, 41, 18 and 40). At the hearing, the Union confirmed that these matters were ultimately not pressed as part of this application and the agreed question was the only matter for determination by way of arbitration.

The Agreement

[11] The provisions of the Agreement subject of the dispute live within clause 6, which is extracted in full at Attachment A to this decision. The parties identified the following provisions of clause 6(iii)(a) as crucial:

“[…]

(ix) Any permanent roster change must be provided to the employee in writing with a minimum of (7) days’ notice.

(x) At the time of engagement, [the Employer] and the part-time employee will agree in writing on the pattern of work required including the average number of ordinary hours per week over the roster cycle, the days on which the work is to be performed and the usual daily starting and finishing times.

(xi) The agreed number of ordinary hours per week may only be varied by mutual agreement in writing.

[…]

(xvii) Rostered hours of work for part-time employees may be adjusted by mutual agreement with 7 days’ notice.

[…]”

The facts

[12] The Employer operates its distribution function at the Lidcombe Facility over seven days a week. In or around January 2020, the Employer announced that its manufacturing facility has undergone a reduction in products being produced over the weekend, driven by a reduction in milk supply and in response to which there was an operational decision to make some changes.

[13] On 9 January 2020, the Employer met with site Union delegates and part-time distribution employees at the Lidcombe Facility to notify that it intended to cease rostering part-time distribution employees on Sundays effective from the end of January 2020, and to commence a consultation process. The Employer notified part-time distribution employees at the Lidcombe Facility that their “agreed number of ordinary hours” per week would be maintained pursuant to clause 6(iii) of the Agreement.

[14] On 14 January 2020, Mr Addy attended the Lidcombe Facility. Mr Addy met with Ms Jaafar and advised her that he was meeting with members on 17 January 2020 to discuss the proposed changes.

[15] On 17 January 2020, Mr Addy met with members at the Lidcombe Facility to discuss the proposed changes. Mr Addy and Wayne Mackie (site Union delegate), subsequently met with Ms Jaafar and Mr Rob Mitchell (Distribution Centre Manager) and discussed the proposed changes.

[16] From 20 January 2020, letters announcing the proposed implementation of the roster changes were issued to the affected part-time distribution employees. Each affected part-time distribution employee was provided with an alternative roster change and invited to indicate their preference.

[17] On 22 January 2020, Mr Addy wrote to Ms Jaafar in relation to the Union’s concerns regarding the proposed changes. Also on 22 January 2020, Ms Jaafar wrote in response to Mr Addy and advised that the planned implementation date of the roster change would be effective 3 February 2020.

[18] On 23 January 2020, Mr Addy wrote again to Ms Jaafar in relation to the Union's concerns regarding the proposed changes. Mr Addy requested that the planned implementation of the roster change be deferred to 10 February 2020.

[19] On 24 January 2020, Ms Jaafar wrote to Mr Addy in relation to the Union's concerns and the proposed changes. Ms Jaafar advised that the Employer agreed to Mr Addy's request that the implementation of the roster change be deferred until 10 February 2020.

[20] On 28 January 2020, Ms Jaafar wrote to Mr Addy to advise him that the Employer had met with site Union delegates to continue the consultation process. Ms Jaafar advised Mr Addy that a further consultation meeting with the site Union delegates was to be held on 3 February 2020, and invited him to attend that meeting.

[21] On 29 January 2020, Mr Addy wrote to Ms Jaafar to identify that the Applicant considered that the matter was in dispute.

[22] Communication continued between the parties over the period 29 January to 5 February 2020, the application in this matter was filed on 7 February 2020 and further meetings of the parties took place during the course of these proceedings.

The Union’s interpretation

[23] The Union opposes the Employer's capacity to alter roster arrangements without individual agreement of the affected part-time distribution employees. It submitted that:

a) it is agreed that the proposed change is a “major change” for the purposes of clause 38;

b) major change to rosters is a variation to the regular pattern of work; and

c) the Employer requires a part-time employee’s agreement to implement such “major roster change” under clause 6(iii) of the Agreement, with particular reference to sub paragraphs (x) and (xi).

[24] In support of its application, the Union filed evidence of discussions that took place over the period 9 January to 5 February 2020, an example of a notice of the proposed implementation of the roster changes issued on 20 January 2020 and the adverse impacts of the proposed shift change on the Union’s members.

The Employer’s interpretation

[25] The Employer contends that mutual agreement is not required to vary the days within the roster on which work is performed.

[26] The Employer appears to accept its operational decision to remove Sunday shifts from part-time distribution employees’ rosters is within the scope of clause 38 (Consultation) and argues it has more than adequately complied with those obligations.

[27] Further, it is accepted that clause 6(iii)(a)(xi) requires mutual agreement, in writing, but only if the agreed number of ordinary hours per week is to be varied.

[28] However the Employer argues that there is no limitation on its ability to direct a change to the times when work is performed. It says that 6(iii)(a)(ix) is the facilitative provision, and distinct from (xvii), explained as follows:

•  (ix) operates to provide the Employer with the flexibility to direct a permanent roster change, but balances that flexibility with certainty for the part-time employee by including a mandatory requirement for 7 days’ notice in writing;

•  (xvii) operates to provide the Employer and the part-time employee with the flexibility to mutually agree to adjust the rostered hours of work, which may be temporary (not permanent change) and in which case the formality of recording the change in writing is not required.

[29] The Employer invites the Commission to find that clause 6(iii)(a), within which the pertinent provisions are found in the Agreement, seeks to balance part-time employees’ need for certainty of work and the Employer’s need for flexibility to utilise those employees to meet its operational requirements. Further, that the Employer has a prerogative under the Agreement and more generally at law to direct a change to a permanent roster due to changed operational circumstances, for example as contemplated by clause 38 of the Agreement.

[30] In support of its position, the Employer filed evidence of the operational need for the disputed roster change and decision to remove Sunday work from part-time distribution employee rosters but not change the agreed number of ordinary hours per week, the proposed implementation of the roster change and steps taken to consult with the affected part-time distribution employees, site Union delegates and the Union.

Consideration

[31] The principles that apply to the interpretation of an enterprise agreement were summarised by a Full Bench of the Commission in AMWU v Berri Pty Ltd, 1 drawing on the earlier Full Bench decision in AMIEU v Golden Cockerel Pty Ltd.2 The Full Bench in Berri affirmed that the interpretation of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a dispute over the interpretation of an enterprise agreement will turn on the language of the agreement, having regard to its context and purpose. Context might appear from the text of the agreement as a whole, the place and arrangement of the disputed provision in the agreement, and the legislative framework under which the agreement was made.3

[32] In the present matter, I consider that the provisions in dispute have a plain meaning and are not ambiguous. The fact that the two parties have presented different interpretations does not mean that the provisions concerned must be ambiguous. 4 In this case, there are contentions in favour of the Union’s interpretation but I prefer the Employer’s interpretation as correct.

[33] Taking into account the ordinary meaning of clause 6(iii)(a), in the context of clause 6 and the Agreement as a whole, it is clear that the provision establishes certain features of part-time employment under the Agreement, in some specific cases there is a need for mutual agreement to change roster arrangements for part-time employees but there is no prohibition on the Employer’s right to restructure rostered days and times of work in response to a change in operational requirements.

[34] The provisions central to this dispute are found within clause 6 of the Agreement, titled “Employment Categories”. Clause 6(iii) is specific to part-time employment. Clause 6(iii)(a) commences with the words “any variation to the regular pattern of work (including average weekly hours of work) will be in accordance with Clause 15(ii)”. Clause 15(ii) provides for “flexing up” of part-time employees’ hours which is not relevant to this dispute. However, from these prefacing words there flows a list of obligations at (i) to (xviv) which are each capable of being read independently. I turn to address each of those that were raised in the course of this dispute.

[35] Clause 6(iii)(a)(x) is concerned with agreement about the pattern of work at the time of engagement and not concerned with any change that might occur thereafter. However it sheds further light on what is meant by “pattern of work”, described as including (not necessarily limited to) “the average number of ordinary hours per week over the roster cycle, the days on which the work is to be performed and the usual daily starting and finish times”.

[36] In the following specific scenarios there is an express requirement in clause 6(iii)(a) for mutual agreement:

•  For a variation to the agreed number of ordinary hours per week for part-time employees, clause 6(iii)(a)(xi) plainly requires mutual agreement in writing;

•  The provision at clause 6(iii)(a)(xvii) provides an option to enable adjustment to rostered hours of work on seven days’ notice and without other limitation where there is mutual agreement;

•  There is also an option for a shorter break of eight hours between finishing and commencing engagements by mutual agreement, pursuant to clause 6(iii)(a)(viii).

[37] However I am not able to identify any term of the Agreement which prevents unilateral changes to the other components of the pattern of work such as days on which the work is to be performed or the usual daily starting and finishing times for part-time employees. To the contrary, clause 6(iii)(a)(ix) contemplates that a part-time employee’s permanent roster change can occur with no condition other than on seven days’ notice in writing. Naturally, this is to be read with other terms of the Agreement that might also apply in those circumstances. Other than the specific scenarios at paragraph 36 of this decision (none of which are applicable to the present dispute), such change will not require mutual agreement or may be made by following a process provided for under the Agreement which is distinct from that provided at clause 6(iii). For example, clause 38 (Consultation) contemplates and expressly provides a process for the Employer to implement changes to regular roster or ordinary hours of work. This provision enables the Employer to deal with the demands of changed operational circumstances and to direct changes provided that there is proper consultation. It is consistent with the legislative framework which requires such provision in all enterprise agreements, in accordance with s.205 of the Act.

[38] I note that in its submissions the Union did not press the application of clause 18, but it would also appear to expressly contemplate and permit the implementation of new shift rosters, not limited to part-time employees and subject to the conditions therein.

[39] For the above reasons, and in the context of this dispute which involves no variation to the agreed number of ordinary hours per week and no specific circumstance requiring express mutual agreement, the answer to the question posed by the parties for determination by the Commission is ‘no’: the Agreement does not in these circumstances require a part-time employee’s agreement to implement a permanent roster change under clause 6(iii).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR717633>

ATTACHMENT A

 1   [2017] FWCFB 3005 (Berri).

 2   [2014] FWCFB 7447 (Golden Cockerel).

 3   Berri at paragraph 114 and Golden Cockerel at paragraph 41.

 4   National Union of Workers v CHEP Australia Limited[2018] FWC 3797 at paragraph 44.