Industrial Relations Commission of New South Wales CITATION: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch v Delta Electricity [2006] NSWIRComm 154 APPLICANT PARTIES: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch RESPONDENT Delta Electricity FILE NUMBER(S): IRC 2467 of 2005 CORAM: Harrison DP CATCHWORDS: Notification under s 130 re request for nine day fortnight - compared to 19 day four week work pattern - 35 hour week in each pattern - longer days worked in nine day fortnight - offer and acceptance of new position - no increase in salary on appointment - higher salary available subject to meeting criteria for advancement - agreement to work 19 day four week pattern by local workplace flexibility agreement under duress - intention to pursue nine day fortnight stated at interivew and acceptance of position - alternative to 19 day four week pattern formally sought during probationary period of employment. Held - local workplace flexibility agreement not valid without union endorsement - local workplace flexibility agreements require genuine negotiation absent in this case - declaration by the employer that the position will be 19 day four week pattern is not negotiation - business case for 19 day month not made out - family responsibilities special consideration - recommendation issued supporting nine day fortnight. LEGISLATION CITED: Industrial Relations Act 1996 BHP Steel (AIS) Pty Ltd v Federated Ironworkers Association of Australia [1994] NSWIRComm 127 Ambulance Service of NSW v Broken Hill Town Employees Union [2004] NSWIRComm 73 CASES CITED: Reckitt Benckiser (Household) Pty Limited v AMWU [2006] NSWIRComm 41 AWARDS Delta Electricity Employees Award 2003 343 IG 331 Delta Electricity Employees Award 2005 356 IG 81 HEARING DATES: 29/3/06 DATE OF JUDGMENT: 05/15/2006 EXTEMPORE JUDGMENT DATE: 03/29/2006 APPLICANT Counsel Mr A Hatcher LEGAL REPRESENTATIVES: RESPONDENT Counsel Mr A Gotting JUDGMENT: - 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Monday, 15 May 2006 Matter No IRC 2467 of 2005 Notification under section 130 by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch of a dispute with Delta Electricity re Nine Day Fortnight Request DECISION [2006] NSWIRComm 154 1 The notification in this matter was filed on 16 May 2005 by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch ("the Union"). The notification advised of a dispute with Delta Electricity ("Delta") concerning a request by Mr David Falconer, a member of the Union, to work a nine day fortnight. 2 The matter was subject to compulsory conference proceedings in June and July 2005 prior to the issue of a Certificate of Unsuccessful Conciliation on 4 July 2005. 3 Directions were issued to the parties to prepare the matter for arbitration. Those directions were twice subject to extension, the matter ultimately proceeding to hearing on 29 March 2006. 4 Mr A Hatcher of Counsel appeared on behalf of the Union and brought evidence from Mr Falconer. 5 Mr A Gotting of Counsel appeared on behalf of Delta Electricity and brought evidence from Mr J Koller, employed by Delta in the capacity of Commercial Manager/Central Coast Production. 6 The central issue in this matter is the requirement by Delta that Mr Falconer work a 19 day four week work pattern, conveniently referred to as a 19 day month, and the claim by Mr Falconer to work a nine day fortnight. Both work patterns involve 35 hours per week, the difference being that on a 9 day fortnight Mr Falconer would work 7.77 hours per day, whilst on a 19 day month he would be required to work a shorter day of 7.36 hours but attend an additional eleven (11) days per year. 7 The Union sought a recommendation from the Commission that Mr Falconer work a nine day fortnight work pattern. An ex tempore decision, repeated at the conclusion of this decision, was issued on 29 March 2006 making the recommendation sought. The Evidence 8 Mr Falconer commenced employment in the power generation industry as an apprentice boilermaker with the Electricity Commission of New South Wales ("the EC") on 28 January 1981. Mr Falconer has remained in continuous employment with the successors of the EC until he became an employee of Delta Electricity. 9 The majority of Mr Falconer's employment has been as a boilermaker, working a nine day fortnight or shift work on various rosters including one period on a four day week pattern. 10 Mr Falconer's evidence was that on or around 14 August 2001 he took up a position of Acting Engineering Officer which he undertook for a period of three years, working a nine day fortnight. 11 Mr Falconer deposed that he subsequently responded to a call for expressions of interest issued by Delta in respect to the position of Administrative Officer/Purchasing Officer. Mr Falconer's evidence was that the expression of interest made no mention of a required work pattern. Mr Falconer applied and worked in the position for about three weeks during which time he worked a nine day fortnight. 12 A number of other people also expressed interest and were afforded the opportunity to work in the position for a period of time prior to the position being advertised on the Delta intranet site as Administrative Officer/Technical Procurement Officer, Central Coast Production, Vacancy ID: 04/011. A copy of the advertisement is found in the Mr Falconer's statement of evidence (Exhibit 1, attach. A). 13 The advertisement referred to the required working hours in the following terms: Note: The work pattern for this position will be discussed at the interview. 14 Mr Falconer described the relevant events at interview and subsequently in the following terms (Ex 1 paras 9-12): 9. I attended an interview for the position in or around 10 November 2004. In the interview, Jeff Banks, the Purchasing Team Leader said words to the effect of: "Delta has judged this position to be a 19 day month position, do you see a problem with this" I said words to the effect of: "I will make a decision about that if I get the job". 15 Mr Falconer was offered the position of Administrative Officer/Purchasing Officer SP18-22 in correspondence dated 14 December 2004 (Ex 1, attach. B). The written offer dealt with the issue of work pattern in the following terms: As discussed, in accordance with Delta's requirement, a 19 or 20 day four week work pattern is to be worked. Following discussions with you on the 14th December 2004, I note that you have agreed to commence working in this role under the provisions of a 35 hour week (5 day week) with the option to enter into a Local Workplace Flexibility Agreement that will enable you to work a 19 day four week work pattern. It will be necessary for you to confirm in writing your acceptance of this offer. The attached acceptance is to be completed and returned to Mr Steve Laurie, Staff Development Manager/Central Coast Productio n. 16 Mr Falconer's evidence (Ex 1, para 11) is that he met with Mr Steven Laurie, Delta's Staff Development Manager, on 24 December 2004: 11. Before accepting the position, on or around 24 December 2004, I had a conversation with Mr Steven Laurie, the Staff Development Manager in words to the effect of: I said: "if there is anyway I can do a 9 day fortnight, either now or in the future I will be pursuing that" He said: "Not everyone that works the 19 or 20 day month is happy about it, it is just one of those things you have to do". 17 Mr Falconer deposed that Mr Laurie required him to sign a prepared letter of acceptance which stated: In accepting this position: · I agree to comply with the provisions of Delta's Code of Conduct, a copy of which has been made available to me. I have read and understood this document. · I am prepared to work in accordance with Energy Services Corporation Act, 1995 and the regulations and by-laws thereunder; the Delta Electricity Employees Award 2003 and its successor; and the policies, procedures, rules, directions and orders relating to employment in Delta Electricity in force from time to. time. · I am prepared to work a 35 hour week (5 day week) with the option to enter into a Local Workplace Flexibility Agreement for a 19 day/4 week work pattern. 18 Mr Falconer's evidence at para 12 of exhibit 1 is: 12. I agreed to accept a 20 day month, with a view to enter into a local workplace flexibility agreement to work a 19 day month. I agreed to do this because I wanted the job, and I hoped that I would be able to return to a 9 day fortnight through negotiation in the future. I signed a local workplace flexibility agreement 24 December 2004. Attachment C is a copy of this workplace flexibility agreement. It was not signed by the Union. I commenced employment on 10 January 2005. 19 Mr Falconer's appointment was subject to a probationary period of three months. 20 Mr Falconer initiated his efforts to attain a nine day fortnight on 20 January 2005. 21 At the relevant time Mr Falconer's employment was regulated by the Delta Electricity Employees Award 2003 343 IG 331 ("the 2003 Award") which applied from 11 March 2003 to 11 March 2005. The 2003 Award was replaced by the Delta Electricity Employees Award 2005 356 IG 81 ("the 2005 Award"). 22 Clause 6, Hours of Work of the 2003 Award prescribed: 6.1 The ordinary hours of work for day workers will not exceed 35 hours per week or 70 hours per fortnight where a nine-day fortnight is observed. Ordinary hours for shift workers are in subclause 10.3 of clause 10, Shift Work. How are working hours determined? 6.2 The commencing and finishing times for each day are determined by local management in consultation with affected employees or their representatives taking into account the needs of the business. Hours for Day Workers 6.3 Day workers are employees who work their ordinary hours from Monday to Friday inclusive and who are not entitled to a paid meal break during their ordinary working hours. The span of ordinary working hours for day workers is 7:00am to 5:30pm, Monday to Friday. Flexible or Staggered Working Hours 6.4 Employees working at Head Office may elect to work a flexible or staggered working hours system in accordance with procedures set down by Delta Electricity. Accrual of Days Off 6.5 Employees engaged on flexitime, staggered working hours or a nine-day fortnight may elect to accrue up to a maximum of five flexidays, rostered days off or special days off for the purposes of taking time off for any reason, including time off to attend to family-related matters. The time off will be on a date agreed to by employees and local management. 23 Clause 24, Local Workplace Flexibility of the 2003 Award prescribed: 24. Local Workplace Flexibility Intention 24.1 This clause is intended to provide the means by which the conditions of employment may be varied as a result of an arrangement which is agreed at the local workplace and by the affected and relevant union/s. What clauses may be varied? 24.2 A local workplace agreement provides for flexibility in the conditions of employment in relation to the provisions of this award and in accordance with the following: (a) Within the award span of hours for day workers, work may be extended outside of the normal hours for that day and the number of additional hours worked taken off at a later time. The ordinary hours accumulated must not exceed a total of 35 hours. (b) Except as provided in paragraph (a) above, the hours of work cannot be altered so that they exceed the maximum ordinary hours allowed in clause 6, Hours of Work. (c) The meal break provisions of the award relating to work in ordinary hours shall not be varied in local workplace flexibility agreements. (d) The provisions in paragraphs (a) and (b) above do not prevent a local workplace flexibility agreement from providing for work to commence from 6.30am. Requirements for Negotiation 24.3 A local workplace agreement shall only provide for flexibility of award and employment conditions where the following requirements have been complied with: (a) The majority of employees affected agree after taking all views into consideration including the need to maintain effective working relationships. (b) The agreement is not contrary to any law and does not jeopardise safety. (c) The agreement will improve efficiency and/or customer service and/or job satisfaction. (d) The employees are not disadvantaged when the agreement is viewed as a whole. (e) The appropriate union has acknowledged the agreement reached with the employees concerned. (f) Managers shall give fair consideration to requests from staff for flexible work arrangements and ensure that work arrangements do not discriminate or work against particular employees. Where 75% of union members affected by a proposed workplace flexibility agreement vote in favour of the agreement, the relevant union/s' agreement is not required under subclause 24.1 of this clause. 24.4 Individual employees may opt out of an agreement if its operation will cause him/her genuine personal or family hardship. Transfer to another equivalent position will be considered in these circumstances. Term of an Agreement 24.5 A local workplace agreement will expire after three months. A renewal of an agreement may have a longer term as agreed between the parties to that agreement. 24.6 A local workplace flexibility agreement will not be used as a precedent in other local workplace flexibility agreement discussions or negotiations. 24.7 Any party may refer any difficulties arising under this clause to the Labor Council of New South Wales. 24 There is no change to Cl 6, Hours of Work in the 2005 Award. There is change to Cl 24 by addition of subclauses 24.4 and 24.8, which allow for Local Workplace Flexibility Agreements (LWFAs) with an individually named employee or employees and endorsement of those agreements by the relevant union or Labor Council of NSW; subclause 24.9 which provides means for termination of agreements; and a renumbering of clauses. Clause 24 of the 2005 Award prescribes: 24. Local Workplace Flexibility 24.1 Intention This clause is intended to provide the means by which the conditions of employment may be varied as a result of an arrangement which is agreed at the local workplace and by the affected and relevant union/s. 24.2 What clauses may be varied? A local workplace agreement provides for flexibility in the conditions of employment in relation to the provisions of this Award and in accordance with the following: (a) Within the span of hours for day workers, work may be extended outside of the ordinary hours for that day and the number of additional hours worked taken off at a later time. The ordinary hours accumulated must not exceed a total of 35 hours. (b) Except as provided in (a) above, the hours of work cannot be altered so that they exceed the ordinary hours allowed in 6 - Hours of Work. (c) The meal break provisions of the award relating to work in ordinary hours shall not be varied in local workplace flexibility agreements. (d) The provisions in (a) and (b) above do not prevent a local workplace flexibility agreement from providing for work to commence from 6.30am. 24.3 Requirements for negotiation A local workplace agreement shall only provide for flexibility of award and employment conditions where the following requirements have been complied with: (a) The majority of employees affected agree after taking all views into consideration including the need to maintain effective working relationships. (b) The agreement is not contrary to any law and does not jeopardise safety. (c) The agreement will improve efficiency and/or customer service and/or job satisfaction. (d) The employees are not disadvantaged when the agreement is viewed as a whole. (e) The appropriate union(s) has signed the agreement reached with the employees concerned. (f) Managers shall give fair consideration to requests from staff for flexible work arrangements and ensure that work arrangements do not discriminate or work against particular employees. 24.4 Where the agreement is collective and where 75% of union members affected by a proposed workplace flexibility agreement vote in favour of the agreement, the relevant union/s' agreement is not required under clause 24.1 and 24.3(e). This provision does not apply to agreements reached under clause 24.8 of this Award . 24.5 Individual employees may opt out of an agreement if its operation will cause him/her genuine personal or family hardship. Transfer to another equivalent position will be considered in these circumstances. 24.6 Term of an agreement A local workplace agreement will expire after three months. A renewal of an agreement may have a longer term as agreed between the parties to that agreement. 24.7 A local workplace flexibility agreement will not be used as a precedent in other local workplace flexibility agreement discussions or negotiations. 24.8 Agreement of named employee(s) Notwithstanding the provisions of clauses 24.3(a) and (e), an agreement may be made under this clause between Delta Electricity and the relevant union(s) that applies to specifically named employee(s). Before any such agreement can operate, it must be signed by the relevant union or Labor Council as appropriate. If an employee advises Delta Electricity in writing that they do not wish endorsement by a union then the agreement will go to the Labor Council of NSW for endorsement. Clause 24.4 does not apply in respect of an agreement reached under this provision. 24.9 Termination of agreement An agreement may be terminated prior to its expiry by giving three months notice in writing by either: (a) By a majority of the affected employees in the case of an agreement applying to more than one person, or the named employee in the case of an agreement under 24.8 that only covers a single person; or (b) Delta Electricity. 24.10 Any party may refer any difficulties arising under this clause to the Labor Council of New South Wales. [Emphasis added] 25 An LWFA (Ex 1, attach. C) was signed by Mr Falconer on 24 December 2004, the day on which he accepted the position of Administrative Officer/Purchasing Officer. This agreement has not been endorsed by the Union in accordance with cl 24.3(e) of the Award. 26 Mr Falconer deposed that he signed the acceptance and LWFA under duress as the only means by which he could obtain the position which provided a safer and healthier work environment and allowed salary progression beyond SP18, which is the highest achievable level for a tradesman. 27 Mr Falconer is the lowest paid and most junior member of the team. 28 Mr Falconer deposed that to his knowledge the previous incumbent worked a nine day fortnight, which is challenged by Delta on the basis that the position offered to Mr Falconer was a newly created position adding technical criteria and accordingly had no precedent. It is not contested that the person leaving the purchasing team, thus creating the vacancy, had worked a nine day fortnight. 29 Mr Falconer's evidence was that he maintained a desire and intention to negotiate a nine day fortnight in the purchasing officer position and initiated a claim to that effect on 20 January 2005, 10 days after taking up the position and clearly within the three month probationary period. 30 Mr Falconer's evidence was that he and his wife have care and responsibility of five children living with them, and have access visits from another three children. Mr Falconer's evidence was that his domestic responsibilities included caring for and assisting his wife deal with physical and other issues affected by a pregnancy, recent miscarriage, depression and post traumatic stress disorder arising from traumatic experiences, and her work as a volunteer facilitator for victims of abuse. 31 Mr Falconer deposed that he works in a team comprising three purchasing officers, one inventory controller and a team leader. The evidence was that only the team leader and Mr Falconer work a 19 day month, all other team members work a nine day fortnight. 32 Mr Falconer's evidence was that the team is well supported by communication systems and that enquiries are made predominantly by facsimile and email with reply usually taking some days or, in complex situations, longer. Mr Falconer deposed that the work can be performed without detriment to Delta on a nine day fortnight basis, putting that to his knowledge purchasing officers and teams at other locations with which he communicates operate effectively and efficiently on a nine day fortnight basis. 33 Mr Koller's evidence was the he joined the EC in 1978 as a stores clerk and has subsequently occupied a number of stores and purchasing positions in continuous employment in the New South Wales electricity generating industry at various power stations prior to occupying his present position. 34 Mr Koller's evidence was that the Central Coast Commercial Group consists of 19 people, six of whom work a 19 day month, all others work a nine day fortnight. 35 Mr Koller's evidence was that three team leaders work a 19 day month and three people in non-team leader positions, including Mr Falconer, work a 19 day month. 36 Mr Koller deposed that in anticipation of a retirement he and Mr Jeff Banks, the Purchasing Team Leader, decided to create a new position of Technical Procurement Officer to better service the needs of technical staff within Central Coast production, whom he identified as asset team leaders, professional engineers, senior plant owners and plant owners. 37 Mr Koller deposed that the new position required technical qualifications not previously within the scope of the purchasing officer position and accordingly a new position description was written and evaluated. 38 Mr Koller's affidavit (Exhibit 3) summarises the major activities of the position, putting that it is as a service provider to the power station and suppliers in an environment where the power stations are operated on a 24 hour 7 day week basis; and that most of the companies the Technical Procurement Officer is required to deal with work five and sometimes six days per week. 39 Mr Koller put that the 19 day month work pattern: ….achieves a greater coverage of days compared to the 9-day fortnight work pattern (in the sense that the Technical Procurement Officer is providing service 19 days each four week period rather than 18 days each four week period). This greater coverage enables the Technical Procurement Officer to be available to communicate with other Delta staff and employees of companies who contract to Delta and to handle issues as they arise. To my mind, it would be more efficient if all Purchasing Officers within the Materials Supply section were working a 19-day month work pattern as it would achieve better daily coverage and greater availability of the employees concerned. 40 Mr Koller deposed that it is not possible to anticipate in advance when other Delta staff take a rostered day off (RDO) and are absent from work, putting that his analysis of RDOs reveals that the range of Central Coast employees of Delta with whom Mr Falconer deals do not all take the same RDO. 41 Mr Koller was subject to close cross examination and re-examination on this point 42 Mr Hatcher went to attachment JAK4 to exhibit 3, which he put demonstrated that the majority of Delta staff with whom Mr Falconer dealt worked a nine day fortnight. Mr Koller was without specific knowledge of the work patterns and was not aware of the start-finish times for Mr Falconer, which he put was a matter between Mr Falconer and his team leader. 43 Attachment JAK4 further revealed that a team leader in the stores area, Ms Maureen Harte, worked a four day week. Mr Koller confirmed that this arrangement had been put in place some years ago to accommodate baby sitting/child minding arrangements from the birth of Ms Harte's child. 44 Mr Koller accepted that in the event of annual leave taken by Mr Falconer or the RDO under the 19 day month arrangement, urgent matters would be picked up by another member of the team with assistance from an engineer as required. Mr Koller deposed that these circumstances were those that Delta sought to move away from. 45 Mr Koller was unaware whether there had been any direct discussion between supervisors and Mr Falconer concerning his family circumstances to explore a mutually satisfactory work pattern, deposing that he did not become involved in operational matters. 46 Mr Koller deposed that to his knowledge since early 2002 Delta has followed a practice that when a new position is created or a vacant position is filled the person appointed to that position must be prepared to work a 19 day month. Mr Koller provided some examples of this experience. 47 Mr Koller's evidence was that all of the applicants interviewed for the Administrative Officer/Technical Procurement Officer were informed at interview that: Delta's position was that this job should be done on a 19 day 4 week work pattern. 48 Mr Koller's evidence was that he accepted the recommendation of the selection committee that Mr Falconer be appointed and in so doing took into account the fact that Mr Falconer had been advised of the 19 day month work pattern and had not withdrawn his application or indicated an unwillingness to work the 19 day month work pattern. 49 Mr Koller deposed that had he known Mr Falconer was not prepared to work the 19 day month work pattern he would not have endorsed his selection by recommending his appointment to Mr Rohan Hall as the authorising officer. 50 The evidence of Mr Koller confirms the events deposed by Mr Falconer in regard to the LWFA and adds some detail of a meeting between Mr Koller and Mr McLalchlan for Delta, with Ms Kennedy, an official of the Union, and Mr Falconer on 15 February 2005 in which Ms Kennedy advised that she would not endorse the LWFA on behalf of the Union and unsuccessfully sought to negotiate a nine day fortnight for Mr Falconer. 51 In addressing Mr Falconer's statement Mr Koller asserted that the large number of work patterns and shift arrangements worked by Mr Falconer demonstrated an ability on his part to organise his family commitments around numerous and changing work patterns. Mr Koller put: … …Although I do not (and nor does Delta) believe a 9 day fortnight working arrangement suits its business needs, Delta is happy to discuss other flexible working arrangements with Mr Falconer. … …I agree that this position offers Mr Falconer the opportunity to develop both personally and financially. However, in my experience, it is not unusual that to obtain these ends one must expect change to past work practices. … …Mr Falconer notes that unforeseen work situations do arise. Delta is happy to implement flexible working arrangements to accommodate these situations. 52 It is appropriate to observe that in Mr Koller's experience it is not unusual for employees to alter work practises as their career advances. Indeed it can be accepted that as higher levels of responsibility and commitment are sought from the employee, higher levels of remuneration are the reward. Mr Falconer has not had a pay rise, he remains on SP18. The difficulty is identifying the point at which and the manner whereby higher levels of commitment, contribution and output are recognised and rewarded. At SP18 Mr Falconer has not reached that point. 53 In response to Mr Falconer's assertion that a Ms Pike was appointed to a position on a nine day fortnight work pattern, Mr Koller deposed that Ms Pike occupies a different position to Mr Falconer with a different position description which was advertised in December 2001, prior to the introduction of the practice of new appointments being to a 19 day month work pattern. 54 Mr Falconer replied to the evidence of Mr Koller by a further statement (Exhibit 2) in which he deposed that RDOs could be planned and organised in an efficient manner, not all tasks listed are required every day, and that communication with Delta staff or suppliers is not diminished by working a nine day fortnight. 55 Mr Falconer put (Ex 2, para 12): 12. In relation to paragraph 29 and the statement that "Delta is happy to implement flexible working arrangements to accommodate these situations", none of these suggestions seemed practical or desirable. If I was working a 9 day fortnight I would also be prepared to be flexible for special projects or special occasions at Delta's reques t. Submissions 56 Mr Hatcher noted that cl 6, Hours of the Award does not allow for the 19 day four week work pattern, which is only available by a LWFA pursuant to cl 24 of the Award. 57 Mr Hatcher put that the requirement for the relevant union to sign off on the agreement has not been met in Mr Falconer's case and accordingly no effective LWFA has been made. 58 Mr Hatcher submitted that the evidence disclosed that Delta adopted a policy to require employees in administrative, professional and engineering classifications to work a pattern of hours not permissible pursuant to cl 6 of the Award, namely a 19 day month; by LWFA imperative of award obligations that the relevant union endorse the agreement. 59 Mr Hatcher submitted that the Award, so far as it provides for different methods of working, does not leave the selection of the method entirely to the whim of the employer. 60 Mr Hatcher submitted that there are a number of indicators that the personal circumstances of the relevant employees can be taken into account. 61 Mr Hatcher identified the relevant award provisions as: · Clause 6.2 which requires starting and finishing times to be determined by management in consultation with affected employees or their representatives, taking into account the needs of the business. · Clause 24.3(f) which imposes a requirement that management give fair consideration to requests from staff for flexible work arrangements and ensure that work arrangements do not discriminate or work against particular employees. · Clause 24.5 which gives an employee the capacity to opt out of a LWFA if its operation causes genuine personal or family hardship. · Clause 27 anti-discrimination provisions and in particular cl. 27.2 which records the intention of the parties to prevent and eliminate discrimination on specific grounds, including responsibilities as a carer; and cl 27.3 which states: It follows that in fulfilling their obligations under the dispute resolution procedure prescribed by this Award the parties have obligations to take all reasonable steps to ensure that the operation of the provisions of this Award are not directly or indirectly discriminatory in their effects. 62 Mr Hatcher submitted that the effect of cl 27.3 is to impose an obligation upon the parties to ensure the Award provisions are not discriminatory and to ensure that the Award provisions are not applied in a way that is discriminatory. 63 Mr Hatcher did not contend that the treatment of Mr Falconer constituted a breach of the Anti-Discrimination Act, however, argued strongly that an inflexible policy requiring adoption of a 19 day month for promotion or access to a career path carried significant potential for breach by excluding certain people for opportunity without capacity for consideration of personal circumstances. 64 Mr Hatcher relied upon the report of the selection committee within the evidence of Mr Koller which revealed that, apart from any consideration of working hours, Mr Falconer was the best qualified candidate. Mr Hatcher submitted that to deny the best candidate appointment on the basis of working pattern would be an odd situation. 65 Mr Hatcher referred to the decision of Hungerford J in BHP Steel (AIS) Pty Ltd v Federated Ironworkers Association of Australia [1994] NSWIRComm 127 in which the criteria for intervention by the Commission is set out at page 3 in the following terms: The way in which issues of this nature are assessed by the Commission, involving as they do potential intervention in the employer's operation and management of its business, requires the Commission not to assume the role of the employer. Rather, the approach is, and this is of long-standing and established principle, to attend to whether the employer's action imposes unfair or unreasonable demands on employees, not infrequently referred to as industrial injustice, or where safety is involved. Relevant cases in the steel industry in that respect decided by the Commission were cited in my recent decision in John Lysaght (Australia) Limited - Port Kembla - Slit Recoil LineRates of Pay Award (unreported - IRC 93/1043 - 15 December 1993 at 40-41). However, it is appropriate to repeat the observations of the High Court in Re Cram; ex parte N.S.W Colliery Proprietors' Association Limited ((1987) at 135-137): Many management decisions, once viewed as the sole prerogative of management, are now correctly seen as directly affecting the relationship of employer and employee and constituting an 'industrial matter'. 66 Mr Hatcher put that the conduct of Delta is such that any notion of agreement is removed from the arrangement. 67 Mr Hatcher submitted that the assumption of a LWFA by Delta is subversive of the Award which requires genuine agreement and endorsement by the relevant union for a LWFA to come into existence. 68 Mr Hatcher submitted that the requirement by Delta that Mr Falconer work a 19 day four week work pattern is unfair and unreasonable and that intervention by the Commission to correct that unfairness by affording Mr Falconer a nine day fortnight is substantiated on the evidence. Mr Hatcher relied upon the evidence of both Mr Falconer and Mr Koller to support his submissions that such intervention would not cause any operational disadvantage or detriment to Delta. 69 Mr Hatcher commended the arrangement made by Delta for Ms Harte and sought a similar consideration for Mr Falconer. 70 Mr Gotting provided an outline of submissions (Exhibit 4). 71 Mr Gotting put that the Union has not met the criteria for intervention by the Commission. 72 Mr Gotting submitted that Mr Falconer accepted the position aware of the obligation to work a 19 day four week arrangement. Mr Gotting put that Mr Falconer seeks to retain the benefits of the position without meeting the obligations to a 19 day four week work pattern. 73 Mr Gotting submitted that at no time did Delta put to Mr Falconer that he could work a nine day fortnight, nor did Mr Falconer qualify his acceptance of the position by requiring that he work a nine day fortnight. Mr Gotting put that Mr Falconer went no further than "hoping" to negotiate a nine day fortnight in the future. 74 Mr Gotting put that there are valid business reasons for Mr Falconer to work a 19 day four week pattern, which he identified as: (a) the achievement of a greater number of "coverage days" by Mr Falconer so that he is available to communicate with other employees of the Respondent and employees of companies who contract with the Respondent and to handle issues as they arise (see Koller Affidavit, pars 11, 12); and (b) the provision of the purchasing service more effectively, particularly given the fact that employees with whom Mr Falconer deals with do not all take the same rostered day off (see Koller Affidavit, par 12). 75 Mr Gotting refuted the assertion that the treatment of Mr Falconer could be regarded as breaching the anti-discrimination provisions, putting that Mr Falconer was not singled out in any way, submitting that Delta has applied its practice of new appointments being to a 19 day four week pattern since early 2202 and a number of new employees working with Mr Falconer work a 19 day four week pattern. 76 Mr Gotting also referred to the decision of Hungerford J in BHP Steel and to Ambulance Service of NSW v Broken Hill Town Employees Union [2004] NSWIRComm 73 and Reckitt Benckiser (Household) Pty Limited v AMWU [2006] NSWIRComm 41, in which the principles are discussed and applied. 77 Mr Gotting submitted that properly considered personal or family hardship had not been established in the case of Mr Falconer, only a desire to spend more time with family. Mr Gotting noted that Mr Falconer had the benefit of flexible starting and finishing times to assist him to meet family obligations and could be better served by working a five day week on shorter hours per day. 78 At the conclusion of proceedings on 29 March 2006 an ex tempore decision was issued which is restated and confirmed herein: HIS HONOUR: I conclude that on the tenets of industrial justice as directed by BHP Steel v Federated Ironworkers Association of Australia Limited and subsequent judgements relied upon by both counsel in this matter, that Mr Falconer should be afforded the opportunity to work a nine day fortnight. The particular circumstances that lead me to that conclusion include a consideration of clause 6, hours, clause 25, local workplace flexibility agreements and clause 27.2 of the award. Further, the lack of genuine negotiation or option available to Mr Falconer at the time of his interview and appointment and Mr Falconer's clear statement at that time of acceptance that he would pursue a nine day fortnight. He was employed on that basis. The circumstances, as shown in the evidence of this matter, are that the contract of employment was formed on the basis of neither party intending to work a five day week, but that another arrangement would be put in place. There needs to be a genuine consideration of all the circumstances when that is pursued. Nothing was put in place other than the direction by the employer to work the 19 day four week pattern. I further have consideration to the undertaking by Mr Falconer in exhibit 2, which I quote. "If I was working a nine day fortnight, I would also be prepared to be flexible for special projects or special occasions at Delta's request." I have consideration to Mr Falconer's family circumstances which are unchallenged in his evidence, involving the care of up to eight children and the circumstances of his spouse, which I do not propose to detail further in this decision. Those circumstances justify special consideration which I find has not been afforded Mr Falconer by Delta. I have further consideration to the position occupied by Mr Falconer at salary point 18-22, being at the lower salary range of positions within the Central Coast commercial group. Further, the overwhelming majority of internal clients detailed by Mr Falconer in attachment E to exhibit 1, work a nine day fortnight, which negates the business case argued by Delta that internal communication would be adversely affected by Mr Falconer working a nine day fortnight. The argument that it was desirable to minimise the extent to which another member of the purchasing team is required to take up the work of another person such as Mr Falconer, who was absent on a rostered day off, goes against the notion of flexibility pursued by Delta in these proceedings. The evidence of Mr Koller that Delta has a fixed and inflexible approach, that all future appointments will be on a 19 day, four week work pattern, is also contrary to the flexibility it seeks from its employees and afford them in the flexibility of starting and finishing times. It further fails to give appropriate consideration to family and carer responsibilities as required by the award. I am not dissuaded by the evidence of Mr Koller in respect of the time sensitive nature of purchasing tasks. This evidence in re-examination by Mr Gotting establishes that the function is critical, that purchasing staff are very busy with a number of tasks and can be difficult to contact of times of plant outage. This does not go to the question of nine day fortnight v 19 day, four week work pattern, perhaps other questions of organisation and efficiency and perhaps the number of purchasing officers available at those times. The evidence does not demonstrate an operational disadvantage to Delta. The proposition that the difference between a nine day fortnight and a 19 day, four week pattern involves only 11 occasions per year falls against Delta as it reduces the potential for operational disadvantage. I'm encouraged by the evidence of Mr Koller that arrangements have been made to allow a female employee in the position of warehouse team leader to move from a 19 day, four week work pattern to a four day week to accommodate child minding arrangements which demonstrates a commendable flexibility on behalf of Delta which should be afforded to Mr Falconer. I will expand on these reasons in a formal decision to issue in due course. I make the recommendations sought by the union in this matter. I expect Mr Falconer to take up a nine day fortnight forthwith and that immediate arrangements be made to adjust his roster to accommodate transition. 79 This formal decision is now published and the recommendation confirmed for the reasons stated. 80 Matter No IRC 2467 of 2005 so concluded. oo0oo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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