Industrial Relations Commission of New South Wales CITATION: NSW Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union v Sutherland Shire Council [2008] NSWIRComm 1030 APPLICANT PARTIES: NSW Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union RESPONDENT Sutherland Shire Council FILE NUMBER(S): 3018 of 2006 CORAM: Macdonald C CATCHWORDS: Section 130 industrial dispute - long serving employee has always worked Monday to Friday only - employer seeks to alter working week to include weekend work - employee opposes change - Decision of 13/07/07 issued by Commission - Held that employer needs consent to change employee's spread of working hours - appeal lodged by employer - prior to appeal being heard, the parties gained knowledge that Decision of Macdonald C of 13/07/07 based on an incorrect document handed up to Commission for interpretation - appeal discontinued and the matter was relisted before Macdonald C for a "re-trial" - correct document (2004 Award, As Varied) provided to Commission - savings provision that required consent of employee to vary the employee's spread of hours no longer in force for 2004 Award - Union's submissions/evidence o/b employee that the employee's spread of hours could not be unilaterally varied considered - Held: employer could, at law, unilaterally vary employee's spread of hours roster. LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 02/04/08 DATE OF JUDGMENT: 3 June 2008 APPLICANT Mr Barnes M, Solicitor LEGAL REPRESENTATIVES: RESPONDENT Mr Crow R, barrister Mr Williamson B, solicitor DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MACDONALD C 3 June 2008 Matter No IRC 3018 of 2006 NSW Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union v Sutherland Shire Council Notification under section 130 by the NSW Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union of a dispute with Sutherland Shire Council and another re alteration of work roster of a member DECISION NO 2 [2008] NSWIRComm 1030 1 This decision is Decision No. 2 of IRC 3018 of 2006. 2 There was an earlier decision of this Commission member issued on 13 July 2007, in the same matter number. That decision will be known as the "First Decision", for the purposes of Decision No. 2. 3 The circumstances by which the Commission is handing down Decision No. 2, are as follows: (a) The NSW Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union ("the Union"), filed a s130 dispute notification against Sutherland Shire Council ("the Respondent"). (b) The dispute notification concerned the Union's member, Ms Ewings who is an employee of the Respondent. Ms Ewings is a long serving employee who has always worked Monday to Friday. The Respondent sought to alter her working week to include weekend work. Ms Ewings opposed that alteration to her working arrangement. (c) The matter was not capable of conciliation and was arbitrated before myself in early 2007. (d) The Union submitted that the relevant industrial instrument required the consent of Ms Ewings, in order for an alteration to her spread of hours to be made. The Respondent submitted that a different industrial instrument was the relevant instrument and it provided that the Respondent could unilaterally alter an employee's spread of hours. (e) The Union relied upon the Local Government (State) Award ("the 2004 Award") to assert that the Respondent could not unilaterally alter Ms Ewings' spread of hours. The Respondent relied upon the Sutherland Shire Council Employees Core Enterprise Agreement ("the 2004 Enterprise Agreement") to assent that the Respondent could unilaterally alter Ms Ewings' spread of hours. (f) The Commission considered all of the evidence before it, and issued a decision, being the First Decision (13 July 2007). That First Decision went against the Respondent as the Commission held that the Respondent needed consent of the employee to alter her spread of working hours. In coming to that conclusion, the Commission interpreted the material before it, including the 2004 Award. (g) The Respondent appealed the First Decision but before the appeal proper took place, a documentary error concerning the proceedings before myself, was discovered. The documentary error was that the Commission had been provided with an outdated version of the 2004 Award. This raised the issue as to whether the Commission could have come to a different conclusion, if the correct Award was before the Commission for the Commission's deliberation. (g) The appeal proceedings went no further and the matter was remitted to myself for a "re-trial", but with the correct Award before the Commission. 4 The Hearing ("re-trial") took place on 2 April 2008. 5 At the Hearing, the Union was represented by Mr M Barnes, Solicitor. The Union filed witness statements for the following: Vanessa Lee Steinfelder - solicitor Leonie Joy Ewings - employee Phillip William Bowering - employee Allan Eric Ewings - husband of Leonie Ewings None of the above makers of witness statements was required for cross-examination. 6 The Respondent was represented by Mr R Crow, barrister. The Respondent filed one witness statement: Peter Roy Evans - Manager Personnel Mr Evans was required for cross-examination FINAL SUBMISSIONS For the Union 7 Mr Barnes, solicitor, for the Union put the following three scenarios in support of their case that the Respondent could not unilaterally alter the spread of hours of Ms Ewings: (a) The 2004 Enterprise Agreement (Sutherland Shire Council Employees Core Enterprise Agreement: EA 05/38) (Ex 4) had to be read in conjunction with the 2001 Award and be subject to that 2001 Award (Local Government (State) Award 2001) (Ex 14); or (b) The 2004 Award, As Varied (Local Government (State) Award 2004, Re [2005] NSWIRComm 233 (1 July 2005) (Ex 7, VLS 9) had to be read in conjunction with the document entitled "General Principles" and was subject to the "General Principles" (Ex 7, VLS 4); or (c) The 1998 Enterprise Agreement (Sutherland Shire Council Leisure Centres Employees Enterprise Agreement: EA98/273) (Ex 2) still had application as to the categories of exception for working a Monday to Sunday roster. For the Respondent 8 Mr Crow, barrister, for the Respondent put the following in final submissions as to the Respondent's legal capacity to unilaterally direct the employee in question (Ms Ewings) to change her roster from a Monday to Friday roster to a Monday to Sunday roster: (a) Commissioner Macdonald came to a certain conclusion in his First Decision of 13 July 2007. That conclusion (reasoning) was partly based on a certain award handed up to the Commission (the 2004 Award) (Ex 6). Subsequent to that First Decision and prior to a Full Bench hearing concerning an appeal by the Respondent against that First Decision, the parties became aware that the 2004 Award had been varied. Accordingly, the Commission had not been provided with the correct award document for interpretation: the 2004 Award, As Varied. (b) The 2004 Award, As Varied was relevant to the Commission's deliberations because it deleted the savings provision that the Commission relied upon to conclude that the Respondent lacked the legal capacity to unilaterally alter Ms Ewing's spread of hours. (c) Given that that savings provision had been deleted, then the Commission would now come to a different conclusion and find that the Respondent had the legal capacity to unilaterally vary Ms Ewings spread of hours from Monday to Friday to Monday to Sunday. CONSIDERATION 9 The Commission has before it for consideration, a "re-trial". That is, the Commission issued a Decision in this matter on 13 July 2007 (the First Decision) and found for the Union as to the outcome of interpreting certain industrial instruments. 10 The Respondent appealed that First Decision and during the appeal process, the parties realised that the Commission had been provided with an industrial instrument (the 2004 Award) for interpretation and this was the wrong award for the Commission to consider. The 2004 Award had been varied, by consent, in proceedings before Wright J., President on 1 July 2005 and that variation, for this Decision No 2, is to be known as the 2004 Award, As Varied - see Ex 7, VLS8. 11 In light of this knowledge, the parties asked and were granted the opportunity for a "re-trial" before myself. 12 This Decision then (Decision No 2) is the second hearing on this matter, but this time the Commission is to consider for the first time, the effect of the 2004 Award, As Varied, on the question as to the Respondent's legal capacity to unilaterally vary the spread of hours of employment of Ms Ewings. The Respondent seeks to unilaterally vary her spread of hours from the existing Monday to Friday roster to that of Monday to Sunday. Mr Crow's Submission 13 In light of my reasoning in the First Decision it is appropriate that the starting point of my deliberations, be the adoption of Mr Crow's submissions, on a prima facie basis. That is, Mr Crow submitted that, as the savings provision had been deleted (by consent for the 2004 Award, As Varied process) then the Commission would now come to a different conclusion than found in the First Decision, and now find that the Respondent did indeed have the legal capacity to unilaterally vary Ms Ewings spread of hours from a Monday to Friday roster to that of a Monday to Sunday roster. The Commission adopts that submission of Mr Crow on a prima facie basis only but it seems a reasonable starting point for the Commission's deliberations. 14 The Commission will now consider the Union's submissions, against that prima facie stance. Mr Barnes' Submissions 15 Mr Barnes put forward three scenarios as to why the Respondent lacked the legal capacity to unilaterally vary Ms Ewings' spread of hours. 16 The first scenario was that the 2004 Enterprise Agreement (Ex 4) had to be read in conjunction with the 2001 Award and be subject to that 2001 Award (Ex 14). 17 The Commission rejects that submission and in doing so, concurs with Mr Crow's submission that the 2001 Award no longer has application. That is, the 2001 Award was rescinded and replaced by the 2004 Award: see Clause 40(ii) Area, Incidence And Duration of the 2004 Award (Ex 6). If a party seeks to rely upon a matter that is contained in the 2001 Award and which has been duplicated in the 2004 Award, then the Commission is to be taken to the 2004 Award (or the most up-to-date variation on a particular matter). As it is, the 2004 Award, in turn, was varied and relevantly so for the subject matter now before the Commission for deliberation. 18 The third scenario put by Mr Barnes, on behalf of the Union, was that the 1998 Enterprise Agreement (Ex 2) still had application as to the categories of exception for working a Monday to Sunday roster. That is, it was put that Ms Ewings fell into a 1998 category of employees who could not be worked on a Monday to Sunday roster, and that category of exception still applies in 2008. 19 The Commission notes that the 1998 Enterprise Agreement does not list a category of exceptions to working a Monday to Sunday roster. As the Commission understands this submission, it is that the foundation for having, and continuing to have, a category of exceptions is found in the hours of work schedules set out in that 1998 Enterprise Agreement (see Front Desk Reception Staff - Schedule 2). This lists a Monday to Friday roster for Front Desk Reception Staff. Mr Barnes submitted that although this schedule of hours arrangement, no longer appeared in the current enterprise agreement (Ex 4), this does not mean that the parties had turned their minds to the issue of maintaining (or not maintaining) the Monday to Friday hours roster exception for Front Desk Reception Staff (that is, Ms Ewings). (Tr 02/04/08 - p35, line 51 to p.52, line 4). 20 The Commission rejects this submission. The 1998 Enterprise Agreement no longer applies. The 1998 Enterprise Agreement was terminated on 12 July 2002. As the Commission understands the enterprise agreement history, there have been two subsequent enterprise agreements: 2002 and 2004. The latter is the current enterprise agreement (Ex 4) that applies and it states that it will be necessary for employees to work over a seven day period (including Saturday and Sunday). (See Clause 4.15 Hours of Work). The savings provision that appeared in the 2004 Award (Ex 6) and protected Ms Ewings from the Monday to Sunday roster stipulation contained in the 2004 Enterprise Agreement, no longer applies because of its deletion through the 2004 Award, As Varied, consent variation process. 21 The second scenario put forward by Mr Barnes is different to the other two scenarios, in that it does not ask the Commission to deliberate on expired industrial instruments as the foundation for accepting the Union's position that Ms Ewings can not have her spread of hours unilaterally varied. 22 The second scenario refers the Commission to the very variation process that caused Ms Ewings to lose her savings provision protection (the 2004 Award, As Varied) and argue that that variation process also put in place, another savings protection provision. This other savings protection provision is a document called the "General Principles" (Ex 7, VLS 4). This document was referred to in the proceedings before Wright J., President, when his Honour ratified the consent application of the parties to vary the 2004 Award. (See Transcript of proceedings: Ex 7, VLS 8). 23 Mr Barnes cited the following relevant Principle from the General Principles: "Employees' normal weekly hours, rosters and commencing and finishing times may only be altered by agreement". Mr Barnes submitted that this particular Principle protected Ms Ewings from having her Monday to Friday roster unilaterally varied. This was so, as she did not and does not give her consent to changing her roster. 24 The Commission rejects this submission, because of the application of a legal principle governing what law prevails when there are two industrial instruments setting out an employee's terms of employment and there is a conflict between those two industrial instruments as to an employee's terms of employment. The two industrial instruments are the 2004 Enterprise Agreement and the General Principles (which forms part of the agreement for varying the 2004 Award). Both industrial instruments deal with the legal capacity of the Respondent to alter the spread of hours of work of employees. 25 The 2004 Enterprise Agreement allows the Respondent to unilaterally vary the spread of hours. The "General Principles" state, inter alia, that the employee's consent is required. There is a conflict between these two provisions as to the same matter, and the law settles that conflict by stating that, where there is a conflict, then the provision contained in the enterprise agreement prevails: s41(1) of the Industrial Relations Act 1996 ("the Act"). Section 41(1)states the following: " 41(1) [Enterprise agreements override State awards] The provisions of an enterprise agreement prevail over the provisions of any State award of the Commission that deal with the same matters in so far as the provisions of the State award apply to a person bound by the enterprise agreement. This subsection is subject to the terms of the enterprise agreement." 26 Accordingly, the Commission holds that the provision in the 2004 Enterprise Agreement as to the Respondent's legal capacity to unilaterally vary Ms Ewings spread of hours roster prevails over the General Principles provision requiring consent of Ms Ewings to vary her spread of hours. 27 The savings provision contained in the 2004 Award (which spoke of a five day week roster and which protected Ms Ewings against having her spread of hours unilaterally varied) no longer applies as it was deleted during the 2004 Award, As Varied, process. As the savings provision has been deleted, then the Commission's deliberation was restricted to resolving the conflict between an enterprise agreement provision and an award provision on the same subject matter. The Commission then, did not need to consider the principles of interpretation of awards. That conflict is resolved by applying s41(1) of the Act : that is, an enterprise agreement prevails over a state award in respect of the same matters. 28 In applying the s41(1) provision that an enterprise agreement matter prevails over the same award matter, the Commission was considering the unilateral right to vary the spread of hours provision contained in the enterprise agreement, as against the employee consent requirement contained, not in the 2004 Award per se, but contained in a document entitled, "General Principles". 29 The Commission wondered whether that stand alone document, "General Principles" was an "award", for the purposes of its deliberations as to an enterprise agreement prevails over a state award scenario. If that stand alone document is not an "award", then the Commission need not have carried out its deliberations as to an enterprise agreement prevails over an award. The Commission assumed that that stand alone document (that is, separate to the award variation filed document), was an "award" for the purposes of s41(1) of the Act. The Commission notes that the term, "award" is defined in the Dictionary to the Act and in Rule 30 of the Industrial Relations Commission Rules 1996. 30 The Commission observes, in passing, that there is a provision contained in the 2004 Award, As Varied, that "An employee's commencement and/or finishing times may be altered by agreement. Such an agreement must be in writing and must be genuine with no compulsion to agree". The Commission notes that this provision is a reference to the start and finishing times for a day. It does not refer to an employee's spread of hours, as in, Monday to Friday or Monday to Sunday - and hence the requirement for agreement (no compulsion). In any event, no party argued for that interpretation. 31 That start/finish time provision is found in Clause 16. Hours of Work: see Clause 16 A. Ordinary Hours (v). Curiously, that start/finish time provision for ordinary hours is repeated in the same clause at Clause 16. D Facilitative Provisions (i). 32 Finally, the Commission also observes as to this deliberation over an enterprise agreement and an award, that an enterprise agreement is, in this case, quite geographically specific. That is, it applies to the business operations of one council: The Sutherland Shire Council. 33 The 2004 Award, by contrast, applies to various councils in the state of New South Wales. 34 When parties negotiate an enterprise agreement, their minds need to be clearly focussed on what is to be the content of such enterprise agreements. If one or both parties rely upon a savings provision in the enterprise agreement and/or the parent state award, then that reliance may be misplaced given the principles of interpretation and the operation of s41(1) of the Act. CONCLUSION 35 Having considered the changed factual circumstances for Decision No 2 (the lack of a savings provision as to variation of the spread of hours) to that of the First Decision and having considered the evidence and submissions of the parties, the Commission concludes that the Respondent has the legal capacity to unilaterally vary the spread of hours of work of Ms Ewings, from a Monday to Friday roster to that of a Monday to Sunday roster. A Macdonald Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.