Agreements tell the story . . .

Cases

Agreements tell the story . . .

Close examination of the terms of enterprise agreements is sometimes needed to decide on the rights and obligations of the parties under the agreements.

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Close examination of the terms of enterprise agreements is sometimes needed to decide on the rights and obligations of the parties under the agreements.

Five cases noted here explore a range of differences in interpretation in order to make rulings on the meaning of agreement provisions.

Employees ordered to train contractors


The FWC (Watson VP) has ruled that employees working under a Qantas agreement can be required to work with a buddy and train personnel provided by labour hire contractors.

The dispute centred around the terms of Qantas Airways Limited and QCatering Limited — Transport Workers Agreement 2015. The union expressed safety concerns regarding fatigue in relation to casual labour hire work if forced to follow employer directions.

However, QCatering took steps to ensure safety incidents would not occur including roster checks and automatic alerts when maximum hours were near.

Effect of agreement provision

The dispute primarily related to the terms of the agreement, although general equity and safety issues were also relied upon. 

The Commission commented:

“In my view it reflects the general notion that the duties employees can be required to perform are only limited by the limits of their skill, competence and training. Such a notion was usually inherent in contracts of employment in any event.”

Transport Workers’ Union of Australia v QCatering Limited T/A QCatering [2016] FWC 3051 (20 May 2016) 


Recruitment procedures pertain to employment relationship


A full bench of the FWC heard a dispute under Metropolitan Fire and Emergency Services Board & United Firefighters Union Operational Staff Agreement 2010 and found that recruitment procedure came within the concept of relevant to the employment relationship, and so was open to consultation with the union.

The dispute concerned a failure by the Metropolitan Fire and Emergency Services Board to consult in accordance with cl 13 of the agreement in relation to a review being conducted by the MFB concerning recruitment procedures for firefighters.

MFB’s position was that changes to its recruitment procedures were not a matter about which it was obliged to consult under the agreement, and a dispute about the changes to its recruitment procedures was not a matter to which the dispute resolution procedure in the agreement applied.

The question on recruitment involved consideration of the High Court of Australia’s decisions in Re Cram; ex parte NSW Colliery Proprietors’ Association Limited [1987] HCA 28; (1987) 163 CLR 117; Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40; (2004) 221 CLR 309 and R v Portus; ex parte ANZ Banking Group Ltd [1972] HCA 57; (1972) 127 CLR 353 and how they apply to the provisions in s172 of the FW Act.

The full bench derived two propositions from Cram:

“(1) A matter will pertain to the relationship of employers and employees if it directly affects the conditions of employees, which includes all the elements that constitute the necessary requisites, attributes, qualifications, environment or other circumstances affecting the employment. (2) The ‘mode of recruitment’ is a matter which has the necessary direct effect, because the competence and reliability of the workforce has a direct impact on the conditions of work, notably as they relate to occupational health and observance of safety standards.” See: Management prerogative 

The full bench concluded:

“Clause 15 requires the consultation provision in clause 13 to be applied in respect of ‘changes in matters pertaining to the employment relationship’ which the MFB wishes to implement. Thus, on the ordinary meaning of the words used, it is not the changes themselves which must pertain, but the matters the subject of the change. If the subject matter of the relevant change in question is the mode of recruitment, then (on the authority of Cram) it is a matter pertaining to the employment relationship and clause 13 applies.”

The full bench also considered another matter – the introduction of gender quotas – and ruled this was not a change to a matter pertaining and was not a matter to which cl 13 and 15 of the agreement applied and so found quotas could not be the subject of a dispute.

United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board [2016] FWCFB 2894 (12 May 2016) 


Coercion in bargaining


A full Federal Court (2:1) has ruled that a union’s action could be classified as coercion and maybe subject to monetary penalties.

Justice Buchanan delivered the leading judgment for the majority (Siopis J agreeing); Justice Bromberg dissenting.

The court majority confirmed the AWU unlawfully coerced Esso Australia during a bargaining dispute and breached anti-strike orders.

The AWU may face substantial damages if the company can prove it suffered economic loss as a result of the unprotected action. Justice Buchanan supported the view of Justice Jessup at first instance that the union action was unprotected.

Justice Buchanan noted that it was not necessary to establish the person intended to act unlawfully and it was not a defence that a person believed their action to be lawful.

Justice Bromberg considered the work bans protected and so the issue of coercion did not arise.

Esso Australia Pty Ltd v The Australian Workers’ Union [2016] FCAFC 72 (25 May 2016) 


Mining work excluded rail union from coverage


A full bench of the FWC has ruled that the Australian Rail, Tram and Bus Industry Union had no right to cover mining work relating to a new agreement for the maintenance contractor serving Fortescue Metals Group’s rail operations in the Pilbara.

The full bench concluded: 

“The position now argued by the ARTBIU appears to be substantially at odds with the limitations on its own rules which it has consistently acknowledged . . .

Had the ARTBIU historically adopted or established a different position with respect to coverage of employees in the Pilbara, we, together with the Commissioner, may well have reached a quite different conclusion.”

Australian Rail, Tram and Bus Industry Union v Railtrain Pty Ltd [2016] FWCFB 3153 (1 June 2016) 


Recall to duty means?


The Federal Court (Mortimer J) considered the meaning of phrase “recall to duty” in applicable enterprise agreements.

A key question was whether recall to duty clauses were limited to the issuing of a direction by an employer to perform duties on a specific occasion.

The difference between recall to duty and overtime work was noted and became central to the court’s decision.

Arguments

Specifically, the court was asked to rule on whether the applicant working for a medical practice making and receiving calls to and from doctors and rearranging rosters at home while on-call constituted a “recall to duty” – where the requirement to do so was an ongoing arrangement rather than a specific request from employer.

The parties both submitted that there must be a “recall to duty” at the request of the employer.

The parties accepted that the phrase “recall to duty” should be interpreted as referring to a recall to the employee’s duty or duties, and in this way it was capable of applying across all classifications in the agreements.

The court took a different line from the submissions of both parties – preferring to view the work in issue as overtime:

“I note that both parties disclaimed any reliance on the overtime provisions in each of the applicable instruments, despite my inquiry about this at the hearing, although neither party developed an explanation for the disclaimer in detail . . .

The parties’ position does not bind the Court in its construction of the applicable instruments. I have concluded the better view is that the applicant was entitled to payment by way of overtime (which she did not receive for the period in dispute), in addition to her on-call allowance (which she did receive).

That means the applicant has been successful to some extent, but not on the basis of her principal contention, and therefore not in the sums sought.”

P v Goulburn Valley Health [2016] FCA 440 (29 April 2016) 

See also: Making sense of agreements 

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