Industrial Relations Commission New South Wales Medium Neutral Citation: Notifications under section 130 of a dispute by United Services Union and Others with Ausgrid re industrial dispute [2012] NSWIRComm 89 Hearing dates: 13, 16, 19, 23 July, 20 August 2012 Decision date: 21 August 2012 Jurisdiction: Industrial Relations Commission Before: Boland J, President Decision: Catchwords: INDUSTRIAL DISPUTE - Notifications of industrial dispute by United Services Union and other unions involving Ausgrid - Alleged failure by Ausgrid to consult in accordance with Federal Agreement - Agreement confers power on NSW Industrial Relations Commission to act as dispute resolution provider - Changes to working hours policy - implications for work health and safety - Recommendations made regarding obligations on Ausgrid to consult with unions and to discuss any changes that impact or are likely to impact on employees in accordance with Federal Agreement Legislation Cited: Fair Work Act 2009 (Cth) Work Health and Safety Act 2011, Div 2 Pt 5 Cases Cited: Termination, Change and Redundancy Case (1984) 8 IR 34 Category: Procedural and other rulings Parties: Electrical Trades Union of Australia, New South Wales Branch (Notifier in 783 of 2012) New South Wales Local Government, Clerical, Administrative, Energy, Arilines & Utilities Union (Notifier in 784 of 2012) Ausgrid (Respondent) Australian Services Union of N.S.W.(Respondent) Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch (Respondent)Construction, Forestry, Mining and Energy Union (New South Wales Branch) (Respondent) Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Respondent) File Number(s): IRC 783, 784 of 2012 STATEMENT AND Recommendations 1On 12 and 13 July 2012, several unions notified the existence of industrial disputes with Ausgrid. Those notifications have been the subject of conciliation conferences before the Commission and these are ongoing. On Friday 17 August 2012, the Electrical Trades Union of Australia, New South Wales Branch ("ETU") sought to have one matter, IRC No 783 relisted and that occurred on 20 August. At the outset of proceedings Mr S McNamara for the New South Wales Local Government, Clerical Administrative, Energy, Airlines & Utilities Union ("USU") sought to have matter No IRC 784 of 2012 relisted as it dealt with the same issues raised in the ETU's notification. The Commission did so without objection. 2The two disputes, 783 and 784 of 2012, concerned, inter alia, a fear on the part of the two unions, together with the Community and Public Sector Union ("CPSU"), over the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ("AMWU") that Ausgrid intended to implement a new Extended Working Hours Policy and Fatigue Management Policy in the absence of appropriate consultation with the relevant unions and in breach of the Ausgrid Agreement 2010. 3That Agreement is one approved by Fair Work Australia under the Fair Work Act 2009 (Cth). The Agreement provides in cl 5 for a process to resolve disputes. Cll 5.3.6 to 5.3.8 provide: 5.3.6 If the dispute remains unresolved, a party to the dispute can seek to have the matter referred to the President of the New South Wales Industrial Relations Commission for resolution by conciliation and or arbitration. 5.3.7 During the course of the above procedures the status quo will be maintained by both parties, and without prejudice to either party, work shall continue in the manner it was carried out prior to the dispute arising. 5.3.8 At each stage of the resolution process the Parties will attempt as much as possible to reach agreement on the further process to be followed. 4The Agreement also provided for a process of consultation to be undertaken with employees and their representatives before the implementation of any changes in production, program, organisation, structure or technology that were likely to have significant effects on employees affected by the proposed changes. Clause 6 of the Agreement was in terms not dissimilar to the "Introduction of Change" provisions inserted in federal awards following the seminal Termination, Change and Redundancy Case (1984) 8 IR 34. 5In the course of conciliation proceedings on 19 July 2012, the union parties made reference to a memorandum issued by Mr S Sofi, Executive Manager - Transmission Substations and Services headed "New Fatigue Management Guidelines in Field Operating". The memorandum detailed the implementation of elements of "a new corporate fatigue management policy" that was to have an impact on working hours. The unions complained they had not been warned about the issuing of this memorandum and no consultation had occurred with the unions regarding the content of the memorandum. It was submitted that this was a breach of the Agreement. 6Ausgrid's position was that there were two separate policies it had been working on: extended working hours and fatigue management. In relation to working hours, Ausgrid claimed that all that occurred was a minor change that was not captured by cl 6 of the Agreement, that is, it was not a "major change" and it did not have a significant effect on employees. In so far as fatigue management was concerned, Ausgrid indicated it would honour its commitment to consult with the unions. 7On 19 July, after referring to the memorandum of 16 July the Commission requested Ausgrid not to proceed to implement the memorandum and Ausgrid indicated that would not be a problem. The Commission made the following recommendation: I am strongly recommending that no steps be taken to implement the contents of this memorandum dated 16 July until you [Mr Farrell representing Ausgrid] have had the opportunity of meeting with the unions on Wednesday or shortly thereafter. The position, Mr McKinnon [representing the ETU], is this: Mr Farrell has undertaken to try and organise a meeting on Wednesday. If he can't do it by then, given that he has just doesn't have all the information to be able to conduct a satisfactory meeting, he will do it as soon as possible thereafter. In the meantime, I recommended to Mr Farrell, and it seems from what he said, it may not be a difficulty, to not proceed to implement any part of this memorandum of 16 July until Ausgrid has met with you and you have tried to sort the matters out. The status quo about the memorandum of 16 July applies to the other matters that you are in dispute with Ausgrid about. Nothing happens until that conference takes place and, hopefully, you can sort it out. If not, Mr McKinnon, any other representatives of the unions here today, or Mr Farrell for that matter, have liberty to bring the matter back before me at short notice but noting that I will not be available between Tuesday and Friday of next week. 8In the proceedings on 20 August, Mr McKinnon for the ETU, supported by the other unions, referred to a meeting with Ausgrid on 27 July 2012. Arising out of that meeting the unions expected that Ausgrid would advise them as to what it considered to be an appropriate form of consultative process to further discussion regarding the matters that were the subject of the dispute notifications in IRC 783 and 784. Not having received any advice from Ausgrid by 6 August 2012 the unions emailed Mr Farrell seeking the information. In a reply email dated 15 August Mr Farrell advised that Ausgrid had considered the unions' request to "set up separate forums to discuss the changes outlined in the Ausgrid broadcast of 4 July and has decided not to." The email continued: I have attached for your information copies of the Working Extended Hours Policy and the interim arrangements for managing fleet renewals whilst a new fleet policy is being developed. 9Attached to the email was the "revised Working Hours Policy". The Policy indicated that: It applies to all Ausgrid employees, including subsidiary employees, consultants and contractors, their employees and sub-contractors engaged to carry out work for Ausgrid. 10The unions submitted that Ausgrid had breached its undertaking to the Commission to maintain the status quo whilst talks continued and reneged on an undertaking to put forward a plan for further consultation on the issues in dispute. 11Ausgrid's position was that the Commission's recommendation of 19 July was to maintain the status quo until the parties had met on the issue. The meeting had occurred and so there was no breach of the undertaking to the Commission to maintain the status quo. 12Ausgrid is plainly enough aware of the unions' concern about changes to working hours policy and the fatigue management policy, which to some extent are connected. Ausgrid had indicated to the unions at the meeting on 27 July it would respond regarding an appropriate consultative process. It decided not to do so for reasons not explained and immediately proceeded to promulgate a revised working hours policy. 13As far as abiding by its undertaking to the Commission to maintain the status quo, it gave it no more than lip service. Ausgrid would have well understood that the Commission was not inviting it to abandon the status quo simply because a meeting took place that produced no resolution and no way forward. Ausgrid would not have been under any misapprehension that the proper course would have been to advise the Commission of its intention to proceed with the implementation of its revised working hours policy before doing so, thereby giving the Commission an opportunity to intervene and make further endeavours to resolve the matter. The action it took was, in the circumstances, most disrespectful. 14Moreover, it seems to me that in announcing its revised Working Hours Policy Ausgrid took a deliberate decision to ignore any need to consult with the unions representing the workforce. 15Ausgrid maintains it was not obliged to consult because the revised working hours policy did not have a significant effect on employees nor was it a "major change". It is surprising an employer the size of Ausgrid and its background in dealing with employees and their unions would take the view there was no obligation to consult on a change to working hours, especially a change that relates to health and safety. The policy was promulgated "[t]o ensure that working extended hours does not expose people to unacceptable and uncontrolled risks to their health and safety". 16The changes "affect all Ausgrid employees, including subsidiary employees, consultants and contractors, their employees and sub-contractors engaged to carry out work for Ausgrid." The changes relate to alteration of working hours, which is deemed under cl 6 of the Agreement to have a "significant effect". There is a respectable argument that cl 6 of the Agreement requires Ausgrid to notify with employees of the changes, to discuss the effects of the changes and to do so in accordance with the processes prescribed by cl 6. 17However, even if that is not correct and a technical argument could be mounted that the revised policy is not a "major change", that an employer would not consult with employee representatives about such a revised policy - indeed, engaged in tactics that risk inflaming the dispute - seems to me fly in the face of modern attitudes to workplace consultation. 18Further, as I have noted, the revised policy was promulgated "[t]o ensure that working extended hours does not expose people to unacceptable and uncontrolled risks to their health and safety". Division 2 of Pt 5 of the Work Health and Safety Act 2011 provides: 47 Duty to consult workers (1) The person conducting a business or undertaking must, so far as is reasonably practicable, consult, in accordance with this Division and the regulations, with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety. 48 Nature of consultation (1) Consultation under this Division requires: (a) that relevant information about the matter is shared with workers, and (b) that workers be given a reasonable opportunity: (i) to express their views and to raise work health or safety issues in relation to the matter, and (ii) to contribute to the decision-making process relating to the matter, and (c) that the views of workers are taken into account by the person conducting the business or undertaking, and (d) that the workers consulted are advised of the outcome of the consultation in a timely manner. (2) If the workers are represented by a health and safety representative, the consultation must involve that representative. 49 When consultation is required Consultation under this Division is required in relation to the following health and safety matters: (a) when identifying hazards and assessing risks to health and safety arising from the work carried out or to be carried out by the business or undertaking, (b) when making decisions about ways to eliminate or minimise those risks, (c) when making decisions about the adequacy of facilities for the welfare of workers, (d) when proposing changes that may affect the health or safety of workers, (e) when making decisions about the procedures for: (i) consulting with workers, or (ii) resolving work health or safety issues at the workplace, or (iii) monitoring the health of workers, or (iv) monitoring the conditions at any workplace under the management or control of the person conducting the business or undertaking, or (v) providing information and training for workers, or (f) when carrying out any other activity prescribed by the regulations for the purposes of this section. 19On the face of it, these provisions required Ausgrid to consult about its revised working hours policy given it impact on safety. Recommendations 20In the circumstances, the Commission makes the following recommendations pursuant to the conciliation powers under the Agreement: (1)That Ausgrid suspends implementation of the revised extended working hours policy until such time as it has met with the relevant unions in accordance with the consultative process set out in cl 6 of the Ausgrid Agreement 2010. The suspension shall continue whilst the consultative process is continuing and until the parties have reported back to the Commission. Where necessary, the provisions of the Work Health and Safety Act regarding consultation shall be observed. In the meantime the status quo shall prevail. (2)In accordance with cl 6 of the Agreement, Ausgrid shall notify the relevant unions in writing within 14 days of the impact or likely impact of any changes to work practices and policies on employees that arise or may arise out of the 4 July 2012 broadcast by Ausgrid entitled "Manager briefing - key messages" and shall discuss those changes in accordance with cl 6. (3)To avoid doubt, the consultative process prescribed by cl 6 of the Agreement shall by followed by the parties in relation to any changes to work practices and policies on employees that arise or may arise out of the 4 July 2012 broadcast by Ausgrid entitled "Manager briefing - key messages". (4)Liberty to apply on reasonable notice. ********** 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. Decision last updated: 21 August 2012