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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1051220-1
Deputy President Bartel
C2014/6393
s.739 - Application to deal with a dispute
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
and
Utilities Management Pty Ltd T/A SA Power Networks
(C2014/6393)
Utilities Management Pty Ltd Enterprise Agreement 2014
(ODN AG2014/5849)
[AE408214 Print PR550775]]
Adelaide
10.06 AM, TUESDAY, 23 DECEMBER 2014
Continued from 22/12/2014
PN659
THE DEPUTY PRESIDENT: Yes. Good morning. Yes, thank you, Mr Manos.
PN660
MR MANOS: Yes. The first witness the respondent calls today is the expert witness, that is Associate Professor Matthew James Westwood Thomas. Could the witness please be shown a copy of his statement?
<MATTHEW JAMES WESTWOOD THOMAS, SWORN [10.07AM]
THE ASSOCIATE: Please state your full name?---Matthew James Westwood Thomas.
PN662
Your address?---(Address supplied).
PN663
And your occupation?---I am a human factors scientist.
PN664
Thank you. You may take a seat?---Thank you.
<EXAMINATION-IN-CHIEF BY MR MANOS [10.07AM]
MR MANOS: Associate Professor Thomas, have you prepared a statement with a report attached to it for the purposes of these proceedings?---I have.
PN666
Do you have before you that statement which is one page signed and dated 14 December 2014 with two attachments?---I do.
PN667
Before we tender that statement, I'll just ask you a few questions. Have you read that statement recently?---I have.
PN668
Is it true and correct in every particular?---It is.
PN669
I tender the statement of Matthew Thomas.
PN670
THE DEPUTY PRESIDENT: Yes. No objection?
PN671
MR NOBLE: No.
PN672
THE DEPUTY PRESIDENT: The statement of Matthew James Westwood Thomas with two attachments is marked SAPN5.
**** MATTHEW JAMES WESTWOOD THOMAS XN MR MANOS
EXHIBIT #SAPN5 STATEMENT AND ATTACHMENTS OF MATTHEW JAMES WESTWOOD THOMAS
MR MANOS: I just have a few additional questions with the leave of the commission.
PN674
The first is, associate professor, can you please tell the commission what your qualifications are to speak about the issue of fatigue management?---I have university qualifications, an undergraduate psychology degree and then postgraduate work and a PhD in the area of human factors, which is the science of people at work and for the last 15 years I’ve worked in an applied academic role working in high risk industries, particularly with a focus on fatigue and error management.
PN675
And what’s your current employment status? Who employs you?---I'm half time at the Appleton University at Central Queensland University, which is based here in Adelaide, which is the old Centre for Sleep Research Group and I'm half time working for myself as director of my own consulting company.
PN676
Yes. And what sort of work you do perform for – is that Westwood Thomas and Associates?---That's correct.
PN677
What sort of work do you perform for that entity?---I perform risk management and human factors work for high risk industries, particularly probably half the work would be fatigue related and the other half would be generally error related with respect to system interface or training or other issues around human factors.
PN678
In your report, can I just ask you please to turn to page 4. You've set out a table there. Can you please explain to the Senior Deputy President what this table means and its significance?---The table is one of a number of standardised risk assessment tools for roster design. This particular one has been developed in Europe and published in peer review literature by Peter Nouth, a very well respected scientist in the area of fatigue, and this particular checklist sets out 16 criteria against which a roster can be evaluated to identify areas of elevated fatigue relates risk; so each of the criteria there being drawn from the scientific literature and each indicates a threshold or a variable relating to roster design that might be indicative of elevated risk.
**** MATTHEW JAMES WESTWOOD THOMAS XN MR MANOS
PN679
The fact that in the right-hand column there you've ticked yes to each of the 16 factors, what’s that indicative of generally when it comes to this roster?---It simply indicates that the roster template design is compliant with the criteria for – if the checklist referred to ergonomic or appropriate from a health and safety perspective design of a roster. So it meets all the criteria for an appropriate designed shift work roster.
PN680
Item number 1 is entitled Maximum Three Night Shift in Succession. What’s the significance of three successive night shifts?---It speaks to two findings of the scientific literature on fatigue and shift work, the first of which is that there is a relationship between the number of consecutive night shifts and increased risk of injury. There was a very large European study that looked at injury data and it indicated that after the first night shift there was a – on the second night shift there was a small increase and then a similar type of increase for the second and third nights in a row and, sorry, a fourth subsequently. The main study I think looked at sequences of four shifts. In a lot of other industries these days, you might see five, six or seven night shifts worked in a row, but that’s very uncommon in Europe where the study was done. So it just looked at the relative risk between night shifts 1, 2, 3 and 4. The second - - -
PN681
Sorry, yes. Go on?---The second piece of science that relates to is the idea that circadian disruption is minimised if you don’t spend a long time doing night shifts. So just like we might adapt if we go to Europe to the time zone, over a sequence of night shifts, the longer we spend working those night shifts, the more likely our circadian system will shift towards – adapting towards. It will never completely adapt. The science says that one of the main health risks relating to shift work is circadian disruption and therefore if you minimise the number of shifts in a sequence, you minimise the risk of disrupting or adapting your circadian system to another time zone and therefore the health risks are minimised.
**** MATTHEW JAMES WESTWOOD THOMAS XN MR MANOS
PN682
Can the proposed roster that’s the subject of your report, could that be described as a fast-forward roster?---Yes, and that is the ideal shift sequence where you don’t spend too long in shifts that are contrary to our circadian design.
PN683
What does that mean a fast-forward roster?---The classic fast-forward rotation would be a sequence of days, afternoon and nights where you would spend no more than two shifts in a row or three – two or three shifts in an afternoon or a night sequence before coming back on to days. The opposite if the backwards rotation where you might go from a night to an afternoon and only have eight hours off in between; classically worked by nurses for many years and air traffic controllers to this day referred colloquially as a doggo where you would work a night, have eight hours off and come back in the afternoon to work the afternoon shift and that’s seen as particularly bad from a circadian perspective. It’s working against the way in which we’re built.
PN684
At paragraph 30 you make your assessment that the proposed roster does not add significant levels of risk of accident or harm to workers when compared to existing rostering and on-call arrangements. What knowledge do you have of the current rostering and on-call arrangements?---I’ve worked with SA Power Networks and the types of – over several years, particularly in developing their risk management program and have familiarity with the types of work structures, specifically for the CBD. It’s my understanding that they currently work a series of day shifts and that the necessary night work is undertaken, either through planned overtime shifts or on-call availability work.
PN685
The commission heard evidence yesterday from one of the employees that he doesn't currently work any overtime, so he just works the day shifts and there was also evidence given that certain other employees work lots of overtime and perhaps more than under the current proposed roster. Is it the case that for those employees who are working more overtime under the current proposed roster that the proposed roster will in fact decrease the level of risk to those particular employees?---Yes.
**** MATTHEW JAMES WESTWOOD THOMAS XN MR MANOS
PN686
Can you explain the significance in terms of fatigue management of the shift work to be performed at night being known in advance by employees?---There is plenty of evidence to suggest that being able to plan ahead is very important. We would refer to it as strategic sleep management. If you know what’s coming ahead, you can certainly plan your sleep to whatever degree is possible and also which minimises, or has the potential to minimise, the risk of fatigue much more so than unplanned work. Secondly, there are known to be significant social and wellbeing impacts of shift work and the ability to forward plan around the family, have them prepared that there’ll be, you know, “This block of days mum or dad will be sleeping at home. This block of days it’s not going to be possible to go out in an evening,” that type of forward planning is known to be extremely beneficial.
PN687
For those employees who the level of risk will increase under the proposed roster, could you describe the level of risk associated with this roster in a bit more detail, apart from, “Does not add significant levels of risk”?---There’s risk inherent in any roster design and I frequently and facetiously say that the least risk in a roster design will be a roster that works one hour on a Tuesday morning. Anything other than that has a level of inherent risk. Night work is one area of particular inherent risk because of its impacts on our circadian system. We are working when we are designed to be asleep and we are therefore subsequently having to sleep when we’re designed to be awake. For those employees who currently undertake no night work then undertaking some night work would have a level of increased risk. However, given the roster template design and the manner in which it meets criteria for appropriate design from a health and safety perspective and particularly the fact that it’s been redesigned to include only three nights in a sequence then that risk is – I refer to as not significant by way of which it’s not intolerable. It is a necessity of modern society that shift work takes place and the most important thing is that that risk is identified, acknowledged and then subsequently things are put in place to manage it. That management is partly in the roster design and partly in what an organisation does in supporting its workforce.
**** MATTHEW JAMES WESTWOOD THOMAS XN MR MANOS
PN688
Are we to take from your evidence, associate professor, that there’s a spectrum when it comes to shift roster work?---Precisely.
PN689
Where would this proposed shift roster sit on that spectrum?---As far as all industries and all shift design, this would be seen as relatively low. One sequence of night shifts and limited to three per month is a relatively low level of risk.
PN690
You refer in paragraphs 31 to 39 of your statement the management of the risk and you refer in paragraph 38 to the SAPN fatigue management field directive. At the time that you compiled this report had you read the SAPN fatigue management field directive?---Yes. I'm very familiar with the document, having been involved for several years in its development.
PN691
You'd be aware then that there is a new fatigue management field directive that’s in development. Are you also being consulted about that policy?---Sorry. I apologise. I mistook the question. I was involved, yes, in the development of the new policy.
PN692
I see?---And as a consequence of that, I'm familiar with the pre-existing policy by way of reviewing that initially and then subsequently looking at ways in which it could be improved in the new policy – in the draft, should we say.
PN693
And is it your opinion that the current policy addresses some of those risks that are inherent in a shift roster?---It certainly does, but I would suggest that the new draft has several features which are much improved.
PN694
Can you briefly describe what those features are?---Shall we call it the draft?
PN695
Yes?---The draft includes mechanisms that don’t relate only to roster design. So the existing directive speaks predominantly to roster design, whereas current best practice in fatigue management would suggest the need to go beyond that and produce mechanisms that support the shared responsibility model for managing fatigue, provide individual employees with tools to assess their own fitness for duty and the organisation supporting individuals in making an assessment where fatigue has become a potential risk day to day. Fatigue risk, in particular, is dynamic in nature and individual. You and I, all of us here, would have very different levels of fatigue risk right now, depending on external factors to work as well as work, and being able to respond to that is very important rather than just relying, almost blind faith, on a roster protecting employees fundamentally.
**** MATTHEW JAMES WESTWOOD THOMAS XN MR MANOS
PN696
If the commission pleases, I have no further questions.
PN697
THE DEPUTY PRESIDENT: Thank you. Yes, Mr Noble?
<CROSS-EXAMINATION BY MR NOBLE [10.24AM]
MR NOBLE: Dr Matthews, I’ve just got a few questions for you. In relation to the table and the criteria which are there, you talk about that being a European study. I was wondering if there were any comparable studies which have been carried out in Australia?---Absolutely. All these criteria would map directly – are directly relevant to work undertaken here, particularly work undertaken by the CBD group and – yes, so yes.
PN699
The criteria in those studies, do they refer to the same criteria?---They do, although a lot of the research at the moment in Australia being done is looking at extended shift length and extended sequences of shifts. So there’s a lot of work being undertaken in 12-hour shifts and seven-day sequences of night shifts because they are perhaps what we are doing more in Australia than they would be doing in Europe. So to put that in context, these are more conservative criteria than we would normally evaluate shifts against in Australia. A lot of Australian shift work would not be compliant.
PN700
Do you know of any studies that are specific to the electrical industry at all?---No, not directly relevant – well, relevant or having been undertaken solely in an electrical utilities environment?
PN701
I was just wondering if there was anything specifically on point in relation to the industry?---Yes, inasmuch as high risk safety critical work. A lot of the studies will look at industries that include all manner of high risk safety critical work, which is definitely the case here for SA Power Network employees and – yes, I think that’s probably all that needs to be said with respect to relevance.
**** MATTHEW JAMES WESTWOOD THOMAS XXN MR NOBLE
PN702
You say at paragraph 24 of your statement, “In addition to effects of fatigue, circadian disruption,” et cetera, “a considerable number of research have indicated that regularly working greater than 50 hours per seven-day period is associated with significant increase in work related health and safety impacts.” I was just wondering if you could give us some examples of those health related impacts?---I'll firstly qualify this statement by saying I'm not a medical doctor, but I understand some of the basic mechanisms by which the health impacts arise. There’s a large focus on gastrointestinal and cardiovascular health issues, part of which has been demonstrated – or if we take the cardiovascular increased risk of hypertension and heart disease. If we take that, partly that is seen as a mechanism of lifestyle factors caused by shift work, accessibility to healthy food, et cetera, et cetera, when working nights in particular, and part of it is seen as a hormonal, endocrinological impact with respect to, say, circadian disruption. Lots of very interesting research is occurring at the moment in laboratories around the world looking at sleep deprivation, short periods of sleep deprivation or sleep restriction and hormonal changes as a precursor to diabetes, for instance. Does that provide enough specifics?
PN703
Yes. I just wanted some examples. Some of the literature, and I mean I haven't read that much, but some of the literature that I’ve read is generally in relation to, you know, these (indistinct) cases which have been run and it’s my understanding that people who regularly work shift work tend to have shorter life spans. Would you agree with that?---I think the literature is not definitive in that. I can say the literature is not definitive in that regard, however, the literature is definitive in saying there is increased prevalence of all manner of health related issues, broadly cardiovascular, gastrointestinal and reproductive are the main three that get focused on. Cancer is probably one that will emerge definitively in the literature soon. There is no doubt shift work is – we are not designed - - -
PN704
To do it?---It’s an unfortunate reality.
**** MATTHEW JAMES WESTWOOD THOMAS XXN MR NOBLE
PN705
You talk about appropriate design, that doesn't mean – design, sorry. I'm thinking about your roster and about the appropriate design as opposed to our bodies being appropriately designed. You said earlier that the roster which is going to be introduced – that roster, though, does it mean that it’s no different for people performing day work? I'm taking away that it’s not?---For people who are only working day work, the change to working some night work is an area of increased risk. However, the design of the roster has been firstly to minimise that risk by meeting criteria for appropriate shift work design, the three nights in succession, in particular. So one would suggest from the shift work design perspective it is designed to meet health and safety criteria.
PN706
Can I ask you to look at your checklist. I’d like you to turn your mind to criterion 10, “No shifts greater than 8 hours”?---Yes.
PN707
Criterion 11, “No overtime if shift is greater than 8 hours,” and criterion 12, “The minimum of 11 hours between shifts.” Now, I see in your statement that you mention - I think it’s just after the table actually – the proviso or caveat, as you put it, about employees being on availability shift while also being rostered on a night shift?---Yes.
PN708
Can I ask you if you've seen Mr Gallina’s statement?---No, I have not.
PN709
I just want to read one paragraph of it to you rather than go through the whole thing. It’s paragraph 33. It’s not very long. This ties in with your observation I think on the availability. So Mr Gallina says:
PN710
The requirement to be on availability will remain in the proposed roster. It is expressed on the roster by the letter A.
PN711
I think that’s attached to your statement as well?---Yes.
**** MATTHEW JAMES WESTWOOD THOMAS XXN MR NOBLE
PN712
We’d still need coverage even if the employees are working nights from, for example, 8.00 pm to 4.00 am because we still need people to be able to attend to a breakdown between 3.30 and 8.00 pm and between 4.00 am and 7.00 am.
PN713
In it he states really that there’s a practical reality or there’s a probability at some point this may occur. Now, essentially it means – my understanding of it is and the way the roster works – that there could be occasions where employees are required to work a number of hours before commencing a night shift and then they would still have to perform the night shift they're rostered on. That's correct, isn't it?
PN714
MR MANOS: I'm not sure this particular witness has a sufficient basis to answer that – there’s a sufficient basis for him to answer that question. He doesn't have particular knowledge of what’s been proposed by Mr Gallina under the availability roster. He’s just had paragraph 33 read to him.
PN715
MR NOBLE: The availability roster was attached to Dr Matthew’s statement.
PN716
THE DEPUTY PRESIDENT: Yes. Perhaps can you just repeat the question for me.
PN717
MR NOBLE: Just looking at the roster, you can see that there are going to be employees who are required to work a number of hours. It’s a possibility because they're on availability, even if they're on night shift, that this may occur; that they're required to work a number of hours before commencing a night shift, then they still have to perform the night shift which they're rostered to work. I think that’s quite clear from the roster. I put it to you that currently that doesn't happen because there is no night shift being performed. They may be on the availability roster, but as there is no night shift then that instance which will potentially occur in the future isn't currently happening, is it?---I do not know, particularly the prevalence, if planned overtime is occurring with respect to the availability roster as well, so I can’t answer that question. I don't know whether or not the situation of planned overtime and availability would create exactly the same scenario. I would assume it would, but I don't know.
**** MATTHEW JAMES WESTWOOD THOMAS XXN MR NOBLE
PN718
As I read it, to me it looks as though there’s a possibility of employees having to work more hours under fatigue than they currently are?---As I said, my assumption is that because of the amount of planned overtime and availability for work occurring at the same time then maybe the situation is the same, but perhaps much more able to be planned. I don't know.
PN719
Okay?---I'm happy to speak to the risk associated with that because I think it’s important to highlight that, as stated in my witnesses statement, it’s not only the roster template design but the additional risk mitigation strategies put in place by the organisation. In particular, in the draft directive we incorporated that mechanism for individual self-assessment such that an individual could look at their sleep history – so for instance, an individual undertaking a night shift and availability work is exactly where they would be urged under the draft directive to undertake a self-assessment of fatigue and to determine whether or not they are fit for work based on their own sleep-wake history. This is the most important and future part of fatigue management where we’re saying, “Okay. There is risk in any roster design, but part of managing that risk as an employee being able to say, “I haven't had enough sleep. I have been awake for too long to perform this work safely,” so there’s a score card in the draft directive that an employee can work through and uses it for the determination of whether they are fit for work. That's a very important part of fatigue management within SA Power Networks.
PN720
Thank you. I did have a question on that, but I think you've answered that sufficiently. You may not know the answer to this, but I was wondering the assessment – if they do make such assessments would it be free from disciplinary action?---Absolutely, absolutely. The whole spirit of a fatigue management program is to empower an employee without fear of any penalty in making that call.
PN721
Just a couple of more questions. My take away from this from what you've said so far is that you focus on the hours of work, the rosters as opposed to necessarily the nature of the work being performed and its inherent danger or hazard. Is that not a fair assessment?---That I would politely beg to differ and, in particular, in that self-assessment tool one of the categories is the nature of work according to the SA Power Network risk matrix and additional fatigue risk points. It’s a little bit hard without having had the opportunity to explain this tool. I believe it may be discussed further today, but the tool calculates points for an individual fatigue risk assessment based on prior sleep, prior wake, but also the next category is time of day and then the next category is the nature of the work task and additional fatigue risk points are added if it’s a high risk task.
**** MATTHEW JAMES WESTWOOD THOMAS XXN MR NOBLE
PN722
Have you had any occasion to observe the work as it’s being performed?---I have.
PN723
You have? Was that during the day or at night?---It is sometime ago and I believe it was during the day.
PN724
Were you able to get as part of the draft, let’s call it – were you able to get the views of the employees performing the work?---Absolutely. That draft was developed by a collaborative group over the course of probably more than a year. The group included representation – Jason was part of that group – in developing the directive.
PN725
And you also spoke to the individual employees who had been performing the work?---Yes. They were represented on that group. They were part of that group and their health and safety representatives were part of that group as well as a conduit. The draft in current form was also subjected to a consultation period where it was made available on the intranet and I was involved subsequently in responding to each of the – it was a frequently asked questions approach and so feedback was sought on the draft and activities are still under way with respect to responding to those suggestions.
PN726
You say at, I think it’s, paragraph 38 of your statement that it’s in the early stages of implementation. What do you mean by early stages of implementation?---The draft directive was applied at several depots as part of a trial and in fact only last month or earlier this month we responded to some feedback from one of those depots with respect to the implications of making a fatigue risk assessment whilst undertaking availability work and I was asked to model several scenarios of using that tool and as a consequence a group is being put together to look at current availability work practices and implications for fatigue.
PN727
Do you know what depots they were?---I can’t. I know there were significant – no. I know there was significant feedback from Holden Hill, but I don't know off the top of my head those other depots, I'm sorry.
**** MATTHEW JAMES WESTWOOD THOMAS XXN MR NOBLE
PN728
It’s my instructions that none of the employees have in fact yet been briefed let alone trained in the respect of, I think, the self-assessment criteria that you're talking about and the fatigue issues involved in night shift. Were you aware of this?---My understanding is that training is scheduled for early in the New Year. That is my understanding based on conversations with George Carlos, head of safety, but at this stage it is still in draft form, the directive.
PN729
When do you think it will be in a final form?---That is not a question for me. Sorry. I don't know, being at arm’s length to some degree, as a consultant for the organisation.
PN730
So in a sense your part in this role has, what, come to an end or you think there might be an opportunity for you to be brought back in by the company?---Well, currently I’ve been brought in to look at the relationship between the aspects of the draft and availability work, as I mentioned before.
PN731
Right?---But really the implementation timeline is something that I have not been involved in.
PN732
Just one last question. Are you of the opinion that the draft fatigue directive should be in place before the shift is implemented?---Yes. I see it as an important part of risk management and the sooner it is in place the better, regardless of any changes, but certainly to answer your question directly, yes, it should be in place before the changes are made.
PN733
Thank you. No further questions.
PN734
THE DEPUTY PRESIDENT: Thank you.
PN735
I just had one question, associate professor, you talked earlier on in your evidence about the risk, sort of, as I understood, increasing progressively over the number of night shifts worked in a row?---Yes.
**** MATTHEW JAMES WESTWOOD THOMAS XXN MR NOBLE
PN736
Can you just tell me how is that measured, how is risk measured? Is it a number or a - - -?---Yes. In that particular study I refer to, it is based on data from workplace injury claims and it looks at the frequency of injury claims on nights 2, 3 and 4 and compares them to night 1. Forgive me if my percentages are one or two off, but it is roughly if you have a relative risk of one for the first night shift, so you're comparing if to that, the second is about a 6 per cent increase. The third is a 20 per cent increase and the fourth night shift has between 30 and 40 per cent. Typically, with these ratios, an arbitrary line in the sand is drawn at a 30 per cent increase in risk as a threshold of tolerability which is why that - - -
PN737
So does that mean that you are 30 per cent more likely to have a workers' comp claim?---Yes. Yes, exactly.
PN738
Okay?---Exactly.
PN739
So that’s - - -?---On the fourth shift compared to the first shift.
PN740
Yes. So the increase in risk between the first and the second, you said 6 per cent and then it goes to 20 per cent?---Yes.
PN741
Over the second or - - -?---18 or 19.
PN742
Within one or two?---Yes.
PN743
Yes. That's all I had. Nothing arising out of that?
PN744
MR MANOS: No, thank you.
PN745
THE DEPUTY PRESIDENT: Mr Noble?
**** MATTHEW JAMES WESTWOOD THOMAS XXN MR NOBLE
PN746
MR NOBLE: No, thank you.
PN747
THE DEPUTY PRESIDENT: All right, thank you very much.
PN748
MR MANOS: Sorry, I do have some re-examination just very briefly, though.
PN749
THE DEPUTY PRESIDENT: Sorry, yes.
<RE-EXAMINATION BY MR MANOS [10.45AM]
MR MANOS: Can the witness please be shown this bundle of documents. This is the draft version of the fatigue risk management directive. Sorry, I have a copy for your Honour as well.
PN751
Associate professor, I just handed to you a bundle of documents. Can you explain very briefly what each of these documents are starting with the first one that’s called The Directive (Draft)? Have you seen this document before?---I certainly have; intimately involved in its development.
PN752
MR NOBLE: Excuse me, your Honour, is this appropriate for reply?
PN753
THE DEPUTY PRESIDENT: You raised all of this matter in cross-examination.
PN754
MR NOBLE: I'm just saying the introduction of the documents.
PN755
THE DEPUTY PRESIDENT: It seems to me it arises out of cross-examination.
PN756
MR NOBLE: Thank you.
PN757
THE DEPUTY PRESIDENT: Yes, Mr Manos?
**** MATTHEW JAMES WESTWOOD THOMAS REXN MR MANOS
PN758
MR MANOS: So this first document is the draft policy itself, is it?---Yes. So this is designed to be the replacement of the existing, I think it’s, B15 document.
PN759
The second document, this is SA Power Networks Fit for Work Guidebook. Can you just briefly describe where that fits in with the policy?---This is guidance for – I would typically call this the Health Living Guide for Shift Workers. It’s meant to provide employees with guidance on how to manage shift work and the caveat on shift work is that I always mean that to refer work that takes place out of normal hours. So whether it’s a standardised shift structure or it’s night overtime or availability, it’s all shift work by definition.
PN760
Yes?---So this is – perhaps if we just look down the table of contents: how to individually manage fatigue risk by lifestyle, by getting good sleep, et cetera, and then there’s some guidance on planning with the family around shift work, you know, just helping employees manage shift work.
PN761
And that’s generic information, is it?---Yes.
PN762
Or is this tailored specifically to - - -?---It’s been tailored and has been developed from within the organisation. I'm sorry for adding information when not asked, but there’s also a DVD that accompanies this.
PN763
I see?---Which walks the employees through undertaking the individual risk assessment using the tools that I mentioned before and some other general information around fatigue and safety.
PN764
The next document in your bundle there, is that a table called Appendix 1 Personal Fatigue Checklist?---Correct.
PN765
Can you explain what this document – the document obviously speaks for itself, but can you explain the table and how it’s designed to be used?---Yes. It’s called the Samn Perelli Fatigue Checklist. It’s come out of, again, scientific literature and it was initially developed to assess a level of fatigue in research participants in laboratory studies of shift work. We have used it extensively both in my university work and my private consulting work because it’s a very simple checklist to give an individual an indication of their personal risk of fatigue. It’s used in many fatigue risk management systems like the proposed one here. For instance, every Air New Zealand pilot on descent puts in a number from 1 to 7 from his checklist and the organisation collects that and evaluates the risk of different routes on it. So it’s well used in high risk environments.
**** MATTHEW JAMES WESTWOOD THOMAS REXN MR MANOS
PN766
The next document in the bundle there, this coloured table, can you explain what this document is?---This is the individual fatigue likelihood score that I referred to when I was asked around additional levels of fatigue management in the proposed draft. This is designed at certain triggers for an employee to undertake a more formal risk assessment than the simple 1 to 7 traffic light. Again, based from what we know in the scientific literature it’s probably a little easier – this is just an example of it being completed in the Excel format. I think in the draft directive there’s a table that I could talk to and explain it a little bit better.
PN767
Yes?---So the SA Power Networks Fatigue Risk Management Directive (Draft) - - -
PN768
It might be appendix 3 on page 15?---Thank you very much. Appendix 3, page 15 will allow me to walk through it a little bit better. So it asks a series of questions of an individual to perform themselves to produce a score that is indicative of a level of fatigue risk. The first three questions relate to an individual’s prior sleep-wake and based on the scientific literature, if you've had less than five hours’ sleep you are at increased risk of error. So we use that as a threshold for adding risk points. So if we go below the five hour sleep, the classic example would be some studies in aviation where we found – again, this is published in the literature – pilots, captains, who had less than five hours’ sleep made approximately twice as many errors. So it’s a well-known threshold. So, first, let’s work through an employee who’s had four hours’ sleep only, therefore, they add four points there. If they’ve had only 11 hours’ sleep in the past 48 hours, then we would add two points and the scale - obviously increase points for less sleep. And then ask the employee at the end of the shift, “How long have you been awake?” and say they had 11 hours’ sleep in the prior 48 hours, but they will have been awake by the end of the shift for 13 hours then we would add two more points because it’s two points more than the sleep they’ve had in the prior 48 hours. So there’s three scores there. The next asks about the task risk, as we mentioned before. So if it’s a high risk task according to SA Power Networks’ criteria then an additional two points are added and then time of day, which is the Circadian time, if it’s the middle of the night, then an additional two points are added.
**** MATTHEW JAMES WESTWOOD THOMAS REXN MR MANOS
PN769
They're obviously totalled and then what do you do with that total? What do you compare it to?---Currently, within the draft if it was nine or above then it would need to be reported and risk management strategies would need to be worked out with a supervisor. The procedure there is on page 8 and under the dot point Fatigue Risk Calculator there’s a trigger point at which this must be undertaken. Nothing prevents anyone undertaking this at any time or declaring themselves not fit for duty, but there’s a trigger where it must be undertaken, which is 12 hours since the commencement of work. A worker must complete the document, the fatigue risk calculator. The fatigue risk score, next paragraph:
PN770
If the fatigue risk score is equal to or greater than nine, the fatigue risk management strategy is to ensure the safety of the worker are determined and documented by the leader in consultation with the worker.
PN771
So this is the spirit of risk management as applied to fatigue, which is a workplace risk. The calculator is meant to highlight when risk needs to be actively managed because it’s come to a level that is unacceptable without mitigation and the employee says to the team leader, “My score is elevated. What do we do about it?” and risk management is applied. It could be they knock off early. It could be they have a nap in the back of the truck. It could be all sorts of other strategies.
PN772
The final document at the back, the one in landscape form, are you familiar with this document?---This is a document I referred to that was referred to within the development of frequently asked questions. These are the results of employee consultation on the draft and each of those actually eight rows – it’s an Excel spreadsheet – relate to a question raised by an employee in relation to how the draft directive of work in practice - - -
PN773
I tender this bundle of documents.
**** MATTHEW JAMES WESTWOOD THOMAS REXN MR MANOS
PN774
THE DEPUTY PRESIDENT: No objection, Mr Noble?
PN775
MR NOBLE: No, your Honour.
PN776
THE DEPUTY PRESIDENT: Just on that, given that there’s quite a bit of information which I take Mr Noble hasn't had an opportunity to study previously - - -
PN777
MR MANOS: No. I provided him with a copy only this morning.
PN778
THE DEPUTY PRESIDENT: Yes. So I'll get back to you on that. I'll just mark them all as one exhibit?
PN779
MR MANOS: That might be the best way, your Honour.
PN780
THE DEPUTY PRESIDENT: Yes, all right. The bundle of documents consisting of the draft fatigue risk management directory, the Fit for Work Guidebook, appendix 1, the table dealing with unmitigated fatigue risk and the question and response format document will be marked SAPN6.
EXHIBIT #SAPN6 BUNDLE OF DOCUMENTS
MR MANOS: Thank you. That concludes re-examination.
PN782
THE DEPUTY PRESIDENT: Mr Noble, would you like an opportunity to have a look at this document? I think, Mr Manos, it might be fair to allow Mr Noble if he wishes to ask any questions arising out of the details in this document that you've canvassed.
PN783
MR MANOS: I'm happy for that to happen. I had proposed to actually put that document in through another witness, but since it came up in cross-examination it made sense to put it in through Associate Professor Thomas.
**** MATTHEW JAMES WESTWOOD THOMAS REXN MR MANOS
PN784
THE DEPUTY PRESIDENT: Yes, all right. So I guess it’s a question for you, Mr Noble, as to whether you would like a short adjournment now just to go through this to see if there’s any questions arising out of that you'd like to put to this witness. I mean, there’s nothing to stop you putting questions to another witness as well about this document. Is it the case that the next witness has had some involvement in the development of this document?
PN785
MR MANOS: Might not have had the same knowledge that this particular witness has.
PN786
MR NOBLE: Your Honour, I don't know if there will really be any utility us going through this and sort of picking it to pieces, especially as it - I'm sure there’s some good material in here, but as it doesn't actually apply to the CBD work group at the moment then until it does, I don't see any point going through this.
PN787
THE DEPUTY PRESIDENT: It’s up to you, Mr Noble. If you don’t wish to ask any further questions in relation to this then it’s your call.
PN788
MR NOBLE: Yes, thank you.
PN789
THE DEPUTY PRESIDENT: All right.
PN790
MR MANOS: Sorry. I was just going to ask if the witness could be released.
PN791
THE DEPUTY PRESIDENT: Yes, thank you, associate professor. You can step down?---Thank you.
<THE WITNESS WITHDREW [10.59AM]
MR MANOS: I call Mark Brownley.
<MARK WILLIAM BROWNLEY, AFFIRMED [10.59AM]
THE ASSOCIATE: Please state your full name?---Mark William Brownley.
PN794
And your address?---(Address supplied).
PN795
And your occupation?---I'm the general manager field services at SA Power Networks.
PN796
Thank you?---Thank you.
<EXAMINATION-IN-CHIEF BY MR MANOS [11AM]
PN797
MR MANOS: Mr Brownley, have you prepared a statement for the purposes of these proceedings?---I have.
PN798
And do you have that before you?---Yes, I do.
PN799
Is that document three pages in length and signed and dated by you 15 December 2014?---Yes, it is.
PN800
Have you had a chance to read this that recently?---Yes, I have.
PN801
Are there any amendments you wish to make to the statement?---No, none.
PN802
Is the statement true and correct in every particular?---Yes, it is.
PN803
I tender the statement of Mark Brownley.
PN804
THE DEPUTY PRESIDENT: Yes. No objection, Mr Noble?
PN805
MR NOBLE: No, your Honour.
**** MARK WILLIAM BROWNLEY XN MR MANOS
PN806
THE DEPUTY PRESIDENT: The statement of Mark Brownley will be marked exhibit SAPN7.
EXHIBIT #SAPN7 STATEMENT OF MARK BROWNLEY
MR MANOS: I just have one topic to cover with Mr Brownley with the leave of the commission.
PN808
Mr Brownley, are you aware that your organisation has in place a current fatigue management directive?---Yes, I am.
PN809
Could the witness please be shown a copy of this document.
PN810
As far as you're aware is the document I’ve just handed to you a copy of the current fatigue management directive?---Yes, as far as I'm aware it is.
PN811
And as far as you're aware is this available on the company intranet?---As far as I'm aware, it is and I'm informed that it is available on the company intranet.
PN812
I tender this document.
PN813
THE DEPUTY PRESIDENT: No objection?
PN814
MR NOBLE: No.
PN815
THE DEPUTY PRESIDENT: The current fatigue management policy will be marked exhibit SAPN8.
EXHIBIT #SAPN8 CURRENT FATIGUE MANAGEMENT POLICY
MR MANOS: I have no further questions, Mr Brownley.
**** MARK WILLIAM BROWNLEY XN MR MANOS
PN817
THE DEPUTY PRESIDENT: Thank you.
<CROSS-EXAMINATION BY MR NOBLE [11.01AM]
MR NOBLE: Mr Brownley, I only have a few questions for you. You've got your statement in front of you?---Yes, I do.
PN819
At paragraph 5 of your statement it says:
PN820
Unlike groups who work in the metropolitan area as the CBD group, cannot close off roads and footpaths and walkways during business hours because of business activity and pedestrians.
PN821
This isn't right, is it?---The statement at five is basically – sorry, I'm just reading it again now. The statement at five goes to the fact that we can’t unilaterally make decisions about what areas of the CBD we close down to perform our work and that that is done in consultation with the Adelaide City Council.
PN822
Which is not exactly what it says, but you do go on in six to talk about the minimisation of (indistinct) - - - ?---Yes, I do.
PN823
- - - and so on for Adelaide City. Are you aware that in the past couple of months – and the specific streets that I have in mind there have been three faults: in Cleary Street one lane was blocked off. In Granville Street a lane was blocked off for a day and just last week I think it was in Morphett Street a lane was also blocked off?---I am aware of the cable faults; not specifically those individual streets although I do recall a Granville Street fault.
PN824
You say at seven that the CBD group does – the work that they do is hazardous and the employees are dealing with extremely high voltage. I put it to you in that case wouldn't it be better for the work to be performed during the day?---The work itself needs to be performed throughout the day and at night for the reasons that have been stated in my statement. So as Dr Thomas had mentioned, it would appear that Tuesday morning was the best time to perform all work, that’s simply not possible given the nature of the work the CBD group carries out.
**** MARK WILLIAM BROWNLEY XXN MR NOBLE
PN825
At eight you say, “SAPN’s top priority is the safety of our employees and public”?---That's correct.
PN826
Then I ask you if that is the case, why haven't reasonable responses to the employee’s concerns been received?---I'm sorry, can you ask the question again?
PN827
The employees have written about their concerns that have been raised in meetings and thus far the responses from SAPN are essentially no and there hasn't really been any further discussion?---I'm not sure that’s entirely correct. I'm aware of a number of work group meetings that have been held where I personally attended those and we have fielded questions and queries and concerns from work groups – sorry, from the employees of the work group that would be affected. I'm also aware that some letters have been written to our CEO Rob Stobbe and that employees who have taken the right to write to Rob have received responses from him on SAPN’s position.
PN828
You are aware of those?---Yes, I am.
PN829
Just turning over the page at 12, discussing the reset period here. It says that you've already submitted the application for the 2015-2020 reset period to the AER, that’s the Australian Energy Regulator?---That's correct. That submission went in on 31 October.
PN830
You also say that you did not refer to the introduction of a shift roster in that application?---No, we didn't.
PN831
Can you explain to me whether or not you went on the basis that the current shift roster is the foundation of your costs in relation to that work?---That would have been implicit in the reset - as I mentioned in our reset proposal. As I mentioned in my statement we don’t need to go down to the actual workforce structure in as far as that reset is concerned. It’s more about the volume, quantity and nature of the work to be performed. The regulator doesn't contemplate the actual workforce structures as far as I'm aware.
**** MARK WILLIAM BROWNLEY XXN MR NOBLE
PN832
No, I understand that and I'm sure they don’t need to know that sort of detail?---Yes.
PN833
But when you're doing the actual costings in relation to - you know, you submitted your application, what costings were you going from?---We would have been using workforce costings that the organisation was familiar with at the time and I can’t speak on behalf of the entire organisation because I'm not familiar with every aspect of the reset, given that covers a number of different areas, but basically the baseline would be the costings that we are familiar with within the organisation.
PN834
And which you've experienced over the past, what, few years or during the last period?---As far as I'm aware, yes.
PN835
Yes. So in a sense the present costs have actually already been absorbed?---Yes.
PN836
When will you know the results from the application?---There will be a draft determination from the AER handed down in April of 2015.
PN837
But as you've just stated, it’s gone on past costings. So if the new night shift is introduced and there are some cost savings then that’s just going to go to profit, isn't it?---There will be efficiencies obviously as a result. We don’t resile from this. There will be cost efficiencies as a result of the introduction of this shift roster. As I also mentioned in my statement, it’s my responsibility to demonstrate that we can work as cost effectively as possible to continue to strengthen our case with the regulator for continued investment in the electricity infrastructure in South Australia.
PN838
Yes. Don’t take a caveat on that. That's fine. Looking at paragraph 14, as part of your reasons for implementing the shift roster, it says, “Soon after I commenced employment the issue of excessive overtime in the CBD group versus other business units within SA Power Networks was raised.” Wasn’t the excessive overtime as you term it worked – that overtime worked simply due to the fact that there was an unusual number of faults soon after you started?---I'm not able to recall specifically the number of faults after my commencement in January 2011, so I can’t answer that one definitively.
**** MARK WILLIAM BROWNLEY XXN MR NOBLE
PN839
I put it to you that it was around about 19 faults that year as opposed to an average of six to eight. Would you think that’s about - - -?---I don't have that information in front of me, so again I can’t confirm that.
PN840
You don't think it’s wildly off?---I'm not able without the data in front of me to confirm the number.
PN841
But overtime requirements are not something that the employees have any control over, are they?---Insofar as responding to cable faults or other dysfunction with the network, no, employees themselves aren’t directly.
PN842
You talk about at 15, there’s a large difference between budgeted overtime in the CBD work group in the overtime hours actually worked and allowance for overtime worked, electricity supply being disrupted at any time, et cetera. But doesn’t this just simply reflect the demands due to breakdowns or faults?---The amount of overtime hours worked?
PN843
Yes?---The amount of overtime hours worked, that is basically correct. That is an employer response to the degraded infrastructure in the CBD, so the short answer is yes.
PN844
As you say, the assets are old. They're degraded and - - -?---That's right.
PN845
- - - they haven't been replaced or upgraded in how many years, more than 20 probably?---Well, it depends where you go, but there’s certainly more than 20 years aged infrastructure in the CBD clearly, yes.
PN846
That can’t be laid at the feet of the employees, can it, that fault?---Absolutely not.
PN847
But they're the ones who are going to be meeting the burden of the cost, aren’t they?---I'm sorry, when you say “meeting the burden of the costs”?
**** MARK WILLIAM BROWNLEY XXN MR NOBLE
PN848
Your cost savings by introducing this night shift. I mean, they're the ones who are going to be paying. It’s not a lot of money to you, I don't think, as a company and I can understand why you want to introduce these changes, but the savings that you make will be as a direct result of the reduced income that the employees will be taking home?---It is a fact that the remuneration of the employees will be affected by these changes, yes, that’s correct. I also go on in my statement to make the point that there’s a significant proportion of money that’s currently paid for stand down provisions, which is where the employees are being paid not to attend work.
PN849
And part of that reason not to attend work is fatigue and so on. They’ve been working and it’s not just – I mean, it’s there for health and safety reasons, isn't it?---No, that’s right. No.
PN850
At 18 you say you engaged Ernst and Young to analyse how and when the CBD work group carried out their work. I was just wondering, were any wage employees, linesmen, actually consulted by Ernst and Young?---The Ernst and Young exercise – the short answer to that question is no. The exercise that I engaged Ernst and Young to perform was basically a desktop analysis for the payroll data that we have within the organisation, together with the working hours, so it was overlaying those two. So Ernst and Young, as I said, performed the desktop analysis.
PN851
As a result of that analysis then you decided to introduce the night shift into the CBD work group and that is again without agreement from the employees who were employed on the day shift. That's correct, isn't it?---Just to clarify it, it wasn't just on the basis of the EY analysis. The EY analysis did support and recommend the introduction of a night shift. However, the discussion, as I said in my statement about the amount of overtime and therefore the requirements for a shift had dated back as far as my commencement with the organisation in January of 2011. So to make the point, it wasn't just the EY recommendation that I was acting on.
**** MARK WILLIAM BROWNLEY XXN MR NOBLE
PN852
But it was one of the factors?---Yes, it was.
PN853
At paragraph 20 you talk about a consultation concerning the introduction of a shift roster and it commenced on 26 February, I think it is, 2014. Were you present at that meeting?---I can't recall being present on 26 February, no. I may have been, but I can't recall.
PN854
So can you recall saying at that meeting, or it could have been a subsequent one, that you said words to the effect of, “We’re bring a shift in and you're going to have to work it”?---I can't recall making comments exactly as you describe. What I can say is when I did go down and meet with the work group, I did inform them that it was our intention to bring a shift in and that employees would be required to work that shift.
PN855
Would you say that’s genuine consultation?---I'm sorry, would I say?
PN856
That's genuine consultation.
PN857
MR MANOS: I object to this question. I wasn't aware that consultation was an issue in these proceedings. It hasn't been taken up in the original application. It’s not in the submissions. I opened on the basis that we understood consultation wasn't an issue. I'm not sure how this is going to assist the commission to decide the issues. Your Honour, I'm just responding to the statement here under the heading Consultation.
PN858
THE DEPUTY PRESIDENT: He’s entitled to ask questions. Ultimately it will be an issue of how much weight, if any, is placed upon it.
PN859
MR MANOS: Yes.
**** MARK WILLIAM BROWNLEY XXN MR NOBLE
PN860
MR NOBLE: At that meeting didn't you say words to the effect of, “I'm not a ramet and genet sort of guy.” Do you recall that?---That would be right. I do recall using that expression.
PN861
You do recall using that terminology. I thought it might be something that you recall. All right. But didn’t you also say that, “I don't have a family, so I can’t relate to those of you with family issues”?---I may well have said that.
PN862
So issues in respect of family and safety were raised, but they weren't addressed, were they?---Well, no, I don't accept that. They may not have been resolved in that particular consultation during that particular meeting, but they’ve been top of my list and my agenda as far as the implementation is concerned. In fact, I’ve been at great pains to point out that because safety is the number 1 priority and employees will affected personally by these changes that we put the necessary steps and support mechanisms in place which includes organisational psychologists and our own employee assistance program as well as experts in fatigue management to manage that transition to the new shift arrangements in the smoothest most compassionate way possible.
PN863
At paragraph 23 it says you have not personally received any feedback from employees of the CEPU about the proposed roster alternatives, but I put it to you at those meetings you were given feedback from the employees?---No, that is true. At those meetings I was given feedback from employees. At 23 what I'm saying about, unlike Rob Stobbe, who had been approached directly with submissions from employees, I had not received any personally, but it is true to say that I did receive feedback from employees at those sessions that I attended.
PN864
And you've already said that you're aware of the letters from Rob Stobbe?---Yes, I am.
**** MARK WILLIAM BROWNLEY XXN MR NOBLE
PN865
I don't have any further questions. Thank you.
PN866
MR MANOS: There are a couple of additional matters, your Honour, which don’t really strictly go to re-examination and perhaps probably should have been properly in examination-in-chief. I would just seek leave to adduce some of that evidence. The topics I wish to adduce evidence on is a delay to the implementation of this roster (1); (2) external assistance that’s going to be provided; and (3) just a further question about the draft management policy and I'm happy to allow my friend an opportunity to cross-examine.
PN867
THE DEPUTY PRESIDENT: Are you happy with that if some additional matters are raised and you have the opportunity to ask questions?
PN868
MR NOBLE: I don’t really object, your Honour.
PN869
THE DEPUTY PRESIDENT: Perhaps just before you do, I just had a couple of questions and it might be convenient if I ask them.
PN870
MR MANOS: Sure.
PN871
THE DEPUTY PRESIDENT: Mr Brownley, in relation to the new fatigue management policy that’s been developed, do you know anything about that in terms of when it’s likely to be released and when employees are likely to receive any training?---Yes. I’ve been involved with the development of that new arrangement since its inception. In fact, I was an advocate for it. We don't have a deadline as such at this stage. As Dr Thomas had pointed out, we’re still in consultation and so therefore we don’t have a hard deadline for its introduction. At this stage nor do we have an implementation plan which would mean it would either be the organisation in its entirety or specific work groups that we would selectively introduce the new arrangements to. So that’s being developed as we speak as part of the final stages of consultation.
**** MARK WILLIAM BROWNLEY XXN MR NOBLE
PN872
You would have heard Associate Professor Thomas’ comment - - -?---Yes.
PN873
- - - that, just paraphrasing - - -?---Sure.
PN874
- - - but in his view it was appropriate for the policy to be in place prior to the new roster commencing. So did you want to comment on that? Because I take it that what’s proposed currently is for the new roster to start on 17 or 18 January?
PN875
MR MANOS: That was one of the topics I was going to traverse with this witness.
PN876
THE DEPUTY PRESIDENT: I'll leave that.
PN877
MR MANOS: There’s going to be a change to that date.
PN878
THE DEPUTY PRESIDENT: Okay. I'll leave that.
PN879
The other question I was just going to ask you, and again I'm not sure if this is an area of your involvement or not, but does SA Power Networks have policies around work, life balance and family responsibilities and those sorts of issues? Are you aware of anything?---Not as such. I'm not aware specifically of work, life balance policies in their true form.
PN880
Okay?---It’s certainly something that we talk about and something we advocate from a cultural perspective, but not something that I'm aware as enshrined policy.
PN881
Good. Thank you. Mr Manos?
<RE-EXAMINATION BY MR MANOS [11.20AM]
MR MANOS: The implementation of the roster that’s currently due to be implemented on 17 January, that's the evidence that’s before the commission, is there anything you'd like to add to that, Mr Brownley?---What we have said is that we will delay the introduction of the roster by a number of months. At this stage we’re currently talking around April. We’re aware of the impact that the roster has on the personal lives of the employees and that’s something that we've been very conscious of from the inception and, therefore, what we've decided to do is we will move that implementation date out to allow employees to make adequate changes in their personal and family circumstances.
**** MARK WILLIAM BROWNLEY REXN MR MANOS
PN883
So just to be clear on that, the reason why you're now intending to delay the implementation of this roster, assuming at the conclusion of these proceedings, and once the commission has made a decision on this application is because of some of the personal issues that have been raised in these proceedings?---That's correct. I mean, it’s something that, as I’ve said before, I’ve been at great pains to stress to those involved directly in negotiations with employees and that is we are aware of the impact it will have obviously and that’s why the consultation period has been a lengthy one. We have to get it right, just as we do with the team management. So in this particular case, yes, I'm very happy for that to occur.
PN884
Has there been a precise date that’s been nominated?---There is. I don't have it to hand so I can’t confirm that. It is in April.
PN885
Is that 11 April?---It could well be.
PN886
What external assistance, if any, is the employer proposing to provide to the CBD work group to assist them to come to terms with this new shift roster?---Yes. There’s a number of things that we propose to do. As I mentioned before, Adam Fletcher, who holds a PhD and is an expert in the area of fatigue management hasn’t been engaged by SAPN previously and he has addressed the work group. We've also offered him up to work individually with employees affected by these changes. Adam works both here in South Australia and interstate to manage the transition of new shift arrangements for people working in hazardous environments as well as high risk occupations. So he’s been engaged. Paul Raymond, who’s an organisational psychologist, who consults to SA Power Networks on a regular basis will also be offered to employees en masse or at an individual level and we also have through our employee assistance program opportunities for them to access counselling services, which includes the impact of any changes in their remuneration as well. So we propose to tackle that on three fronts, as well as the management and supervision obviously in the work group itself.
**** MARK WILLIAM BROWNLEY REXN MR MANOS
PN887
Thank you. In terms of the introduction of the new fatigue management policy in light of the delayed implementation date of the roster are you able to inform the commission with any more certainty about whether the policy might be able to be introduced by the time that the new roster commences?---I would have to take advice on that. I can’t make unilateral commitments on behalf of SAPN on something as significant as the introduction of fatigue risk management. However, I am aware that we are well progressed and consistent with Dr Thomas’ statements we’re close. So it could well be that they intersect. I also spoke before about the option of a phased introduction, which is something that the organisation traditionally has favoured with significant change. So that’s something else that we would look at as a matter of course.
PN888
Yes, thank you. No further questions.
PN889
THE DEPUTY PRESIDENT: Yes, Mr Noble?
<FURTHER EXAMINATION-IN-CHIEF BY MR NOBLE [11.24AM]
MR NOBLE: Just a couple of brief ones, your Honour.
PN891
I take it from what you've just said then that the delay in implementation of the new roster is nothing to do with the fatigue management policy?---They weren't directly related, no.
PN892
Not directly related? So you think there’s still a possibility that the new roster could come into existence before the fatigue management policy is ready?---It could, yes. Whether it will or not, as I said, won’t be a decision for me unilaterally.
PN893
I was just wondering whether or not you would consider providing financial advisers or maybe perhaps childcare facilities in relation to some of your workers to help - - - ?---In the matter of financial advice, this is something I’ve discussed directly with our people in culture professionals and as part of the employee assistance program I'm advised that financial advice can be provided. I can’t comment specifically on the nature of that financial advice because I haven't personally investigated that, but certainly as a minimum referral services as far as financial advice will be provided through EAP and that’s something I remain committed to from the outset. Childcare services I can’t comment on directly. Again, that’s not something that I would make a unilateral decision on. That's something that SAPN would have to consider on the whole.
**** MARK WILLIAM BROWNLEY FXN MR NOBLE
PN894
No further questions. Thank you.
PN895
THE DEPUTY PRESIDENT: Yes, thank you, Mr Brownley. You can step down?---Thank you very much.
<THE WITNESS WITHDREW [11.26AM]
MR MANOS: That's the case for the respondents.
PN897
THE DEPUTY PRESIDENT: Thank you, Mr Manos. Are you ready to proceed, Mr Noble?
PN898
MR NOBLE: I am, your Honour. What was pointed out by your Honour before the case even started in relation to the Golden Cockerel decision, I thought I’d just sort of address some of the legal areas first.
PN899
THE DEPUTY PRESIDENT: Yes.
PN900
MR NOBLE: I should say at the outset that we rely on our written submissions. I just want to add just a few things. That's all.
PN901
THE DEPUTY PRESIDENT: Yes, certainly.
PN902
MR NOBLE: In relation to the Golden Cockerel decision, I think it’s at paragraph 29, this is after the Full Bench extracted the analysis contained in what I might just refer to as the Stratton case which confirmed the approach in Codelfa and was recently confirmed again in Woodside that not only will the language used require consideration, but so too will the surrounding circumstances and the commercial purpose or objects.
PN903
Over the page at paragraph 30 – actually it’s over a couple of pages because there’s a further discussion. It’s on page 10 of mine. The numbering may be a bit different.
THE DEPUTY PRESIDENT: It’s paragraph 30. Yes.
PN904
MR NOBLE: At paragraph 30, yes. The Full Bench stated:
PN905
Regard may therefore be had as evidence of the surrounding circumstances before the existence of ambiguity and agreement is identified as an aid to interpreting the agreement for the purposes of determining whether an ambiguity exists. So if thereafter an ambiguity is not identified, extrinsic material cannot be used to contradict the language of the instrument. If ambiguity is identified the material may be used as contextual material to aid in the interpretation of the instrument.
PN906
It’s our contention that the authorities referred to in our outline of argument do not contradict the ratio in Golden Cockerel. If I could get you to turn to the Lion Nathan decision at paragraph 46 which we refer to in our submissions. Do you have that? I think I have a copy. The relevant paragraph that we refer to is paragraph 46.
PN907
THE DEPUTY PRESIDENT: Where are you referring to now?
PN908
MR NOBLE: The Lion Nathan decision, your Honour.
PN909
THE DEPUTY PRESIDENT: Sorry; that you've provided? Thank you.
PN910
MR NOBLE: In that decision there’s a recognition of the argument surrounding Codelfa which wasn't dealt with in the Golden Cockerel decision. At paragraph 46 it says:
PN911
I am also satisfied that the controversy engendered by the passage from the judgment of Mason J in Codelfa, to which Finn J referred, has now largely been resolved by recent High Court cases dealing with the use of surrounding circumstances when construing contracts.
PN912
I refer in particular to Pacific Carriers (indistinct) Corp, I suppose, and also the Alphapharm decision or the Toll decision. In effect, the High Court has determined:
PN913
At least when construing commercial contracts the surrounding circumstances or factual matrix may be taken into account. This is so in all cases even if the words “at issue” are not ambiguous or susceptible to more than one meaning.
PN914
He also makes reference to a paper by J.W. Carter and Elizabeth Peden called Taking Stock. I’ve had an opportunity to look at that paper, your Honour, and I have a copy here. It is an academic paper, but it does refer to some of the more recent controversy around the cases and it comes up with – if you turn to page 5 there’s a little list of what they refer to as dealing with construction. They don’t call it rules. Rather than a commercial construction being a set of rules, it’s best that it’s a concept which has certain characteristics or incidents and then there’s a list of what those are.
PN915
Further down in the paragraph beginning, “The decision in Paribas,” they talk about the High Court being correct; that the person in that case had the authority to bind a bank. The main significance of that decision in Paribas is that it can be seen as a triumph for commercial construction. Then they go on to say:
PN916
Another positive element in the recent cases is that in Parabis the High Court appears now to have clarified that the surrounding circumstances or factual matrix of a contract may be taken into account in all situations, even if the words are not ambiguous or susceptible to more than one meaning.
PN917
It’s my understanding that SAPN isn't relying on any other provision in the agreement other than clause 9, shift work, for the permission to actually commence night shift. My friend in his opening yesterday mentioned reliance on clause 3, consultation. Certainly when one looks in the agreement at clause 3.1.2 principles that may be the case, but I would say that in the present circumstances, however, as the shifts are only to be introduced into CBD operations, it would appear that in accordance with – I’ve got 3.4.1. I think it’s on page 34 of the agreement, your Honour.
PN918
THE DEPUTY PRESIDENT: This is attachment 2 you're referring to?
PN919
MR NOBLE: That's right.
PN920
THE DEPUTY PRESIDENT: Yes, I have it.
PN921
MR NOBLE: Yes. As the shifts are only to be introduced into the CBD operations it would appear that in accordance with this clause that it’s an issue only in relation to a smaller group of employees. If you look at the top or the first significant paragraph on page 34:
PN922
Issues that are specific to individuals or smaller groups of employees should be discussed by other means and in other forums as outlined in clause 11, issue resolution. Employees are encouraged in the first instance to raise such specific issues.
PN923
So we would say that clause 11 comes into play in relation to this issue, your Honour. It’s our view that there needs to be agreement to changes to change rosters ties in with the implication that introducing the new shift is such a fundamental change to the method of working shifts that it will not occur unless agreed between the parties concerned. It’s our view that the introduction of a new shift is a far more radical change to working a shift and the rotation of the shift, start and finish times and that there must be agreement to its introduction. We contend that without agreement it would be a breach of the agreement to introduce such a shift.
PN924
As the evidence has shown, these employees are day workers. Under the agreement, that’s at clause 5, their ordinary hours are an average of 37.5 hours per week, exclusive of meal breaks and worked in the span between 7 am to 5.30 Monday to Friday. The effect of the proposed roster changes will be to require these workers not just to work nights, but to work Sundays as well and availability, which they currently do.
PN925
THE DEPUTY PRESIDENT: What do you understand the Sunday work to be?
PN926
MR NOBLE: For day workers as it presently exists, I am going on to address that a bit later, but it seems to me that the only way to get day workers to work on a Sunday is under clause 6 following which is the overtime shift. The relevant part there is - I think it’s either non-continuous from memory – it’s when they're basically called back in to work rather than just performing work on top of the hours that they are already working. It seems to me that clause, I think it’s 6.3 from memory, would cover those sort of situations. Yes, “Overtime non-continuous with ordinary hours.”
PN927
Then there’s a little table about how much they would get paid. So if it was a Sunday, it would be 100 per cent, which I note is the same amount being proposed under the shift, anyway. I just wanted to make the point that if this shift is introduced what is the practical meaning of clause 5 and day workers? The normal hours of day workers, their start and finish time, the lengths of a working day are by agreement between the employees and local management. It just seems to me that if you introduce a shift, impose a shift on to these day workers then they're not really day workers any longer. They're only day workers for those parts of the monthly roster cycle which they're part of and then they get taken out of that and they can no longer properly be characterised as day workers. A lot of the respondent’s argument seems, and also their evidence - - -
PN928
THE DEPUTY PRESIDENT: So what are you saying that the agreement doesn't make provision for the sort of roster that’s being - I'm just not clear what your point is.
PN929
MR NOBLE: Essentially, that’s what I'm saying. It’s silent on it. There’s a definition there, but it’s our contention that the night shift is only ever replied to those workers who have traditionally worked that and they are the workers in appendix 1A, the professional workers. Looking at the agreement as a whole, there aren’t any rosters contained in the agreement. The rosters are sorted out at the depot level, the local level, the CBD work group and traditionally that’s been by - I'll be moving on to this in a bit more detail, but the agreement is essentially silent on how the new roster is meant to be implemented. Our contention is you're a day worker, that’s what you are. You're a day worker. I'm coming on to the argument that it’s in their contracts that allows SAPN to do this. There seemed to be quite a bit of reliance in the evidence.
PN930
THE DEPUTY PRESIDENT: I presume, subject to what Mr Manos says, he’s going to say it’s a non-continuous shift that’s been rostered for the 9th and non-continuous shift work is contemplated by the agreement. So continuous shift work, which is when there’s work rostered throughout all days and all hours, essentially, is one type of shift work and then there’s non-continuous which, presumably, contemplates that there won’t be continuous work. What do you say about that?
PN931
MR NOBLE: I think that’s right. The definition is there, but if you're a day worker and you're required to work on weekends then I think any normal reading of the agreement, then it’s the overtime provisions which apply to those workers.
PN932
THE DEPUTY PRESIDENT: Okay. It seems to me the rosters that are proposed introduce three changes. So there’s the day work on Sunday which hasn't been a feature of their work. There’s the three night shifts per four-week period and there’s a change in the availability roster, the frequency of it, as I understand it, for those people who are currently doing one in six. So it may be that those three new features of the roster are dealt with under different provisions of the agreement, so the Sunday work sort of discussed. The shift work was the point that I'm on at the moment which is whether you agree that what’s being introduced in terms of the three night shifts would fill the definition of non-continuous shift.
PN933
MR NOBLE: Of a non-continuous shift? Let me just have a look at the definition. I suppose the week, the Sunday and the three nights that you're talking about – I suppose it would have to fit in there. It’s our contention that the day shift or the day workers, they work a four-week – it’s a nine-day fortnight, but within a four-week roster and there’s reference to - I think it’s attachment 11, it’s on page 131 of the cycle that they would be doing and that would be taking them out of that cycle.
PN934
THE DEPUTY PRESIDENT: And you're referring to the Sunday work now or are you talking about the shift work?
PN935
MR NOBLE: The Sunday work and also the night shift work. Yes. It’s our view that the agreement simply doesn't contemplate day workers becoming shift workers. We’re not saying that there isn't mechanisms under the agreement to actually get people to do this work or to start other people doing the work. I mean, the practicalities of that are, of course, problematic because of the nature of the work which is performed in the CBD, but the instrument itself isn't really concerned with that in itself. Should I move on to address the contract issue?
PN936
THE DEPUTY PRESIDENT: Sure.
PN937
MR NOBLE: As I said, what’s come out in the evidence which I'll move to, that the respondents are seeking to introduce a night shift roster and changes to the other rosters on the basis of what is contained in the employment contracts of the affected employees or on position descriptions where applicable. Indeed, the evidence shows that what they argue is a relevant term of the contract is absent, they point to – sorry, what I mean is there are some people whose contracts don’t actually allow them or they're silent on allowing them to perform shift work. I think it was six, from memory and they're not intending to attempt to require those employees to work the proposed shifts or at least as Mr Gallina said, yet. So perhaps they may be later on.
PN938
When he was cross-examined as to whether SAPN is relying on the rights under the employees’ common law contracts, he replied no. They were instead relying on the ability to do this under shift. So I put it to him that he was relying on contracts. He said, “No, it’s under the shift.” But be that as it may, your Honour, attached to Mr Adley’s uncontested evidence there’s a letter from Mr Gallina which is attachment 4. It’s dated 2 September 2014 addressed to Mr Adley. At the bottom paragraph of page 1 of that letter he states:
PN939
We are exercising our right to implement shift work in the CBD in accordance with each relevant employee’s contract of employment.
PN940
In the same letter overleaf in response to question 3, over the page:
PN941
Why isn't this proposal being put to a vote like what happened in 1998 with the Metropolitan Supply Restoration Depots?
PN942
His answer was:
PN943
Those employees did not sign employment contracts agreeing to undertake shift work, unlike the employees in the CBD during the scope of this requirement, therefore there was a need to put it to a vote at the time.
PN944
Just a point about those contracts, your Honour. It was put to Mr Adam Smith that the contract was peculiar or personalised to him as it had his name and address, position and place of work on it. But just a cursory glance through all the contracts which were provided, I would argue that it leaves one with a distinct impression that they are generic or template contracts that are the modified over time for the person and the role to be performed. I don't think that’s particularly surprising, a large organisation, similar roles, et cetera.
PN945
As an example, I don’t need to take you to it now, but I was having a look through - Mr Jewell’s contract is practically identical to that of Steven Pagliese’s contract and they were both in the February 2006 intake. They were based in different depots of CBD in Marleston, but other than that the changes of names, addresses, you know, they look generic regardless of the depot location.
PN946
If I may turn to the legal argument in relation to contracts and their interaction with statutory instruments, I have here a relatively recent case. I think it was 1 December. It’s called DL Employment. If I may hand it up. I'll just refer to it briefly. I think it’s long been accepted that statutory instruments may affect common law contracts and this recent case with Vice President Hatcher, Deputy President Booth and Commissioner Kenner – it is 1 December. If I could take you to paragraph 42 of that case, your Honour. It states there in part:
PN947
The terms of the contract may, of course, be affected in their operation by a statutory instrument such as an award or agreement made or approved under industrial legislation applying to the same employment. The contract of employment may provide for matters additional to and not inconsistent with the statutory instrument and in that circumstance the instrument and the contract may be said to co-exist. But where the contract contains provisions inconsistent with those in the instrument, the provisions in the instrument will apply by virtue of the statute which gives it effect and the inconsistent provisions of the contract will be displaced in their operation and rendered inoperative.
PN948
It then goes on in the case of an EBA approved – that will be under section 50 of the act:
PN949
That person is bound by the enterprise agreement and must not contravene any of its terms.
PN950
Section 50 is a civil remedy provision and, of course, it may attract a pecuniary penalty. In the present case I would say that the relevant provisions of the agreement we’re dealing with are clause 6 which deals with the terms and conditions of employment:
PN951
The general terms and conditions for employees covered by this agreement are set out in attachment 2 of this agreement, the Utilities Management Terms and Conditions Agreement 2014.
PN952
My friend yesterday referred to clause 7, the purpose and principle objectives of this agreement, but I’d like to point out that under clause 7 the first objective recorded there is:
PN953
The objective of the agreement is to record terms and conditions of employment for utilities management employees covered by this enterprise agreement.
PN954
The part that my friend referred to yesterday was that the parties would work collaboratively towards implementing business changes necessary to improve the performance against the key business objectives and there’s productivity, business growth, customer service and (indistinct) compliance and business financial outcomes. It’s our view that there’s been scant collaboration thus far in achieving these business objects and on any ordinary reading of the clause, the primary objective is to record the terms and conditions of employment of the employees.
PN955
Another clause which I think is a relevant provision in the agreement is clause 10, the no extra claims part. It says:
PN956
The parties bound by this agreement undertake that until the nominal expiry date set out in clause 4 will not make any extra claims relating to terms or conditions of employment, whether dealt with in this agreement or not in respect of the employees covered by this agreement.
PN957
I would say that the above approved versions read in accordance with the ordinary meaning of the language used, meaning that the engagement of employees on terms and conditions of employment inconsistent with those in the agreement and arguably not contained in that agreement are not permitted. The Fair Work Act authorises provisions with this effect forming part of an enterprise agreement under section 172. I won’t go through those, your Honour.
PN958
Now, we’re not maintaining that the current agreement by any means completely displaces the employment contracts, it’s just that when an industrial instrument prescribes the respective rights and obligations of an employer and the employees covered by it, it operates in respect of the employment relationships which are separately brought into being by individual contracts of employment. We’re not saying that the industrial instrument itself creates employment relationships. To that extent the agreement cannot displace employment contracts. Contractual terms consistent with the agreement, such as the provisions in the letters of offer of employment would be in accordance with the Utilities Management Enterprise Bargaining Agreement, let’s say 2005 when you're looking at a specific employee, or any award or workplace agreement replacing or overriding that agreement.
PN959
We also recognise that the contractual terms which are implied in law and employment contracts – because they're regarded as inherent to the nature of the employment relationship, independent of any presumed intention of the parties and they couldn't be displaced because of any purported exclusion or modification of such terms which might negate the existence of the employment relationship upon which the instrument depends. There’s a short passage in Byrne v Frew, I think it’s at 421, where they say:
PN960
The contract may provide additional benefits but cannot derogate from the terms and conditions imposed by the award. The award operates with statutory force to secure those terms and conditions.
PN961
It’s our submission that there is no provision for day workers under the agreement to be moved on to a shift roster, unlike availability rosters where there is a requirement. So we’d say that if there was to be a requirement to go on to a shift roster in accord with the availability rosters then it would likely be there. We contend that the introduction of a night shift for wages power line workers, that is day workers, employed under the agreement to work Monday to Friday, 7 am to 5.30 in the CBD operations would be a breach of the terms of the agreement and an extra claim and also a clear derogation of the terms and conditions of that agreement.
PN962
Notwithstanding our primary position that the agreement does not contain any mechanism for the introduction of shifts and therefore any introduction of shift would have to be implemented on the same basis that’s commonly understood by the parties as it has been implemented in the past, namely by agreement, the display of which was by traditionally a cast of votes by the affected employees, there’s just a few points which I think still need to be made.
PN963
Contrary to what’s been asserted by the respondent, the relevant provisions in the early agreements are not that different and I’ve got a copy of a few to look through if you wouldn't mind. I haven't extracted the whole agreements. I’ve just gone to the relevant part to do with shift work. I think it might be easier to just look at the 2011 one. On the second page it’s got shift work and the definition was exactly the same. If we go back right to the last couple of pages and look at the – it’s the 1999 agreement – the wording is the same. The wording hasn't changed.
PN964
So we say the fact that they haven't changed in substance has given reassurance to our members and our officers that things were not any different to how they were in the past as to how they are now when it comes to things such as rosters and shifts. When you look at the provisions relating to day workers, that is the provisions contained in clauses 5.1 through to 5.7 and their respective attachments relating to flexible working arrangements, it would appear on its face that the only changes anticipated and therefore permissible are to the hours worked which require agreement between the employer and the affected employee.
PN965
5.1B, for example, requires any alteration to the start and finish times in respect of the nine-day fortnight; any other alteration to the start and finish times subsequent to the operation of the 36-hour week shall be by agreement. 5.1C also requires agreement to the setting of start and finish times within the 7 am to 5.30 pm range:
PN966
Within the above parameters, the start and finish times, the length of the working day are by agreement between the employees and the local management.
PN967
As adverted to earlier, a similar obviously could be made in respect of the flexible working arrangement provisions contained in respect of attachments and there we have attachment 11. Now, attachment 11 as part of its objectives:
PN968
To improve our level of service to the customers through greater flexibility of working hours and to improve quality of working life for employees.
PN969
As can be seen in the body of the text or the dot points under the heading Principles of Operation:
PN970
Any variation to an employee’s roster requires consultation in the first instance -
PN971
in respect of varying the roster for an RDO and then agreement -
PN972
and agreement is also required to change as to span of hours and also in respect of flexible start and finish times.
PN973
The implementation of the proposed roster on the evidence before the commission will do nothing to meet the objective of improving the quality of working life for the employees. In respect of working weekends for day workers, we say that it’s only permissible - we've traversed this already - in relation to 6.3, the overtime, so I won’t push it, but that’s the subsection which contains all the terms and conditions and the rates of pay payable. We say that presumably the requirement there also has to be read in conjunction with the NES, that is section 62, and the maximum weekly hours so it’s reasonable overtime and it gives a non-exhaustive list about when overtime may be refused.
PN974
Your Honour, if we fail in all these arguments, it’s found that the introduction of a night shift for wages power line workers working in the CBD operations is not to be a breach of the terms of the agreement, we maintain that the manner in which it’s being introduced is contrary to the terms of the agreement and is unfair on the workers who will be affected by its introduction. Clause 11 of the agreement, the clause 11 issue resolution, does not restrict the commission to adjudicating on the terms of the agreement. It expressly envisages it being involved in all issues of concern.
PN975
Now, unlike the provisions in the Golden Cockerel decision which were explicit and therefore a matter in which the commission was readily able to apply the principles of construction in industrial instruments, it’s (indistinct) that the agreement is essentially silent and the dispute resolution provision gives the commission a distinct power from its own terms in that all issues of concern may be conciliated and arbitrated. The commission can pretty much do whatever it thinks in terms of a remedy to produce a fair and equitable outcome.
PN976
SAPN have not and will not, it seems, be able to implement a fatigue policy prior to the shift work proposed commencement date. The employees will understandably have some concerns about the greater than 10 per cent increase between doing two nights as opposed to three, accident rates as the associate professor alluded to and, as I’ve said, when you look throughout the agreement and that is reading the agreement as a whole, it may be readily discerned that any changes to the hours of work generally involve consultation in the first instance, but ultimately the agreement of the affected employer/employees – I’ve already traversed these arguments so I won’t continue them, your Honour.
PN977
Just one or two last points which I think probably fit in under the fairness point and they're issues of concern. The first relates to health and welfare concerns, fatigue in short. The evidence demonstrates there’s going to be a much higher incidence of employees working three nights in a row and it’s been conceded that at present this is a pretty rare occurrence. Then there’s also the added likelihood of having to perform work outside of the rostered night shift whilst on the availability roster and that’s not making mention of Sunday work.
PN978
The final point relates to family responsibilities and personal time in general. It may be true, your Honour, that employees currently work no more hours under the proposed roster than what they current work, but the point came through time and again when the employees were asked that they took that work when they availed themselves of it. It wasn't imposed on them. It was by choice and they could manage their own time, their timetables, responsibilities, et cetera.
PN979
I just briefly want to say something in relation to the potential monetary loss. We have in evidence that the monetary loss from the introduction of night shift is of far less significance to the employees than the value that they place upon family and social time. Mr Smith, Mr Nagel and Mr Pagliese all gave evidence in that respect. They were willing to forego the income that they would otherwise be capable of earning for a regular day shift roster. They gave evidence that they could meet their financial demands, for example mortgage, by working no overtime or proposed night shift and that they would rather give up a holiday they might have otherwise enjoyed.
PN980
In short, they would rather tighten their belts than be forced to work the shifts which are about to be imposed on them. Although from what we hear today, it may not be until April at some point, but I may say, although the employees say that that is their primary concern. One of my colleagues did some quick estimates and we think that it may cost up to $30,000 in some cases in lost income which is not insignificant.
PN981
In the past or even to the present, I think it came out in the evidence today, it shows that SAPN has been willing to accommodate the personal demands placed upon its workers and the workers and the CEPU have recognised the need for SAPN to reduce costs and to lift productivity. You can see the attached statements to Mr Adley and Mr Smith on that point. It was also uncontested that the introduction of new ways of working, such as employing contractors to do excavation work at night and then for the linesmen to come in the following day to perform the work was a method that was effective and which would also reduce costs for SAPN.
PN982
The evidence was also shown that it’s possible and it has in fact been done recently to block off single lanes in the CBD to carry out necessary repairs. The evidence also showed that when customers directly asked SAPN for work to be performed that all those labour costs are covered and there’s also some additional costs on top and those hours weren't distinguished in the evidence which was presented to the commission.
PN983
It’s the applicant’s contention that despite what’s happened, the parties are able to work collaboratively towards implementing business changes necessary to improve performance without the need for a shift roster to be imposed on them and to do so would be disruptive not only to the lives of the affected workers, but the working environment within SAPN and that is if the commission is persuaded that the shift roster can be imposed. However to this end, I repeat our primary contention that the introduction of the proposed shift is not permitted under the terms of the agreement. I have nothing further.
PN984
THE DEPUTY PRESIDENT: Thank you. Yes, Mr Manos?
PN985
MR MANOS: If the commission pleases. The topics on which I intend to address the commission are these: (1) a brief overview of the current roster versus the proposed roster; (2) the reasons for the change; (3) the enterprise agreement; (4) safety; (5) contractual issues; (6) personnel issues before I conclude at (7). So if I might start with a comparison. I could hand to your Honour please this table. It’s an aid that I’ve put together based on the evidence. On the left-hand column we've got the matters which will not change under the proposed roster. So the terms and conditions which will remain the same. They’ll continue to work the same number of hours a month, same RDOs. They’ll continue to work day work and the same hours during the day. They’ll work from the same locations, performing the same type of work, receiving the same base rate of pay. Some overtime work will still be available and they’ll be paid the same rates.
PN986
On the right-hand side we've got the differences which include the four shifts; three shifts plus the Sunday work. I’ve labelled it as four shifts. The pay rates for the Sunday work will remain the same at 200 per cent for all work performed, but the shift work between the Monday and Wednesday nights will be at 22 and a half per cent in accordance with the agreement and there will be a reduction in the stand down time, which is one of the drivers for the employer in this case introducing this proposed roster.
PN987
THE DEPUTY PRESIDENT: Can I just ask you something, Mr Manos?
PN988
MR MANOS: Yes.
PN989
THE DEPUTY PRESIDENT: The 144 hours per month, is the employer’s position that the Sunday work is overtime or ordinary hours?
PN990
MR MANOS: It’s ordinary hours, but it’s paid at overtime rates.
PN991
THE DEPUTY PRESIDENT: Okay. And it’s ordinary hours because why?
PN992
MR MANOS: They’ve just included it in the 36 hours a week. On one view it might not be. On one view under the agreement it might not be ordinary hours, but because I think the way that they're seeing this proposal is that it’s going to be – these employees will become shift workers classified and subject to the provisions in clause 9 of attachment 2 of the enterprise agreement and under that they're entitled to ask them to work outside of day work hours. They will be non-continuous shift workers and one of the shifts within the 36 hours a week they’ll be asked to work is the Sunday shift.
PN993
THE DEPUTY PRESIDENT: I mean, it’s not helpful because shift work is not defined anywhere.
PN994
MR MANOS: No. It comes in two forms. There’s continue shift work and non-continuous shift work and the non-continuous shift work is defined as what the continuous shift work isn't, but then on ordinary hours of work in clause 9.5 it just refers to a number of hours per week which need to be worked. It doesn't have a span of hours and it doesn't stipulate which days of the week. In our submission, that’s because it anticipates the shift work will be performed over a period of seven days.
PN995
THE DEPUTY PRESIDENT: Yes, I agree. I guess the query I have is whether day shift is contemplated within the shift work provision because it’s not defined.
PN996
MR MANOS: Yes.
PN997
THE DEPUTY PRESIDENT: I guess what I'm saying is whether the non-continuous shift just applies to the three night shifts rather than the totality of the roster period.
PN998
MR MANOS: Yes, I understand what your Honour is saying.
PN999
THE DEPUTY PRESIDENT: I don't know what the answer is. I'm just asking.
PN1000
MR MANOS: I'm not entirely sure either. The agreement doesn't seem to specifically contemplate that, but what’s being proposed is this hybrid, I suppose, of continuing day work on the one hand, but there being these additional four shifts that they work and quite possibly what that means – and I think this is the way the employer is seeing it - is then all work that they will be performing will be shift work, all the shifts, and subject to the shift work provisions in clause 9. That actually provides an advantage to the employees and I'll take your Honour to that as I move through the enterprise agreement.
PN1001
THE DEPUTY PRESIDENT: Thank you.
PN1002
MR MANOS: But one of those key advantages will be the opportunity for employees to swap shifts between themselves. So what we say is the effect of this proposed roster, when one looks at it holistically and takes a step back and has a look at the key differences between the current roster and the proposed roster is that it’s not that different for many of the employees, bearing in mind that the vast majority of them work the availability roster and many of them also work unplanned overtime which requires this night work, effectively night shift we say. So what the employer is seeking to do is really formalise that arrangement and we say the enterprise agreement isn't just silent on it, but actually actively permits it.
PN1003
The effects on the employees will be different. Some of them will work night shift where they have not previously, but as I say, many of them will be working night shift when they’ve already worked night shift previously. So there will be no difference. Maybe in some cases there will be decreases in the amount of night work they perform. But one of the advantages to the proposed roster system as traversed by the associate professor in his expert evidence was that the provision of certainty around shift work provides those individuals with an advantage from a fatigue management perspective because, of course, it allows them to do some planning, to make sure that they get the necessary sleep at home and can organise their personal life around those shifts as well.
PN1004
For some of the employees it might also mean that they receive more pay. We do accept that many of them will probably incur a reduction in their take home pay, but that is because, firstly, they will be not working as much overtime. Overtime is, of course, discretionary. It can be taken away at any time by the employer. That's neither here nor there we say in the scheme of things, but if your Honour is inclined to consider the pay provisions, well, there are some employees – for example, Mr Jewell, who hasn't been working any night shift who will be more handsomely remunerated under this proposed scheme because he'll have the benefit of the 22 and a half per cent when he works those night shifts.
PN1005
The reasons, I might turn to those, number (2) on my list of matters to address your Honour on. The reasons this employer proposes to make this change are these: firstly, one of efficiency. One can see from Mr Gallina’s statement, and AG1 to that statement, that in the previous financial year a significant amount of overtime was paid and a significant amount of time was paid as stand down pay. Of course, there’s a sound reason for stand down pay. We don’t begrudge that. That, of course, is for safety reasons and the fact that there needs to be this minimum 10-hour break. But the fact is that that is an expensive exercise for this employer and littered throughout the evidence are examples of employees who are required to work overtime then having these extended periods out.
PN1006
In effect what happens when they work this overtime is that they then need to often take day shifts off and so they're then not able to work periods for the next day and sometimes the whole shift which, of course, throws out the working arrangements and means that the employer has to factor that in to the way it builds its rosters and its scheduling of who is working when. Of course, that all comes at a significant expense. It’s an expense that we say is avoidable because of the nature of the overtime work and the ongoing need for that work to be performed.
PN1007
This isn't a case of there are peaks and troughs and that there are occasions when there’s no overtime that needs to be performed for this employer. This is a case of overtime always needing to be performed. It’s an ongoing need and it makes sense to have it incorporated into a formal shift roster scheme. So the second reason is therefore profitability.
PN1008
As Mr Brownley attested to in his evidence, in his statement, there is budget pressure. The cost of labour is directly related to the submissions that this entity puts forward to the Australian Energy Regulator and based on those submissions about its costs, prices of electricity are determined. Mr Brownley also gave evidence about the capital and maintenance work that needs to be performed in the CBD and the fact that there is old capital and that needs constant maintenance and it needs upgrading as well. So the point there is that there will be this ongoing need for this work to be continually performed and while this employer is having to pay it as overtime then it’s affecting its profitability.
PN1009
The third reason and the third driver for why this employer wants to introduce this roster is that it now has sufficient numbers to introduce the roster. The evidence was that these workers are specialised workers. They have skills over and above the ordinary power line worker and a certain threshold of employees need to be met before this type of shift roster can be introduced.
PN1010
I turn now to address your Honour on the enterprise agreement. Before I do that, I would like to make some brief submissions about the Golden Cockerel decision. With respect, I take a different view to the effect of this decision on enterprise agreement interpretation from what my friend did. Does your Honour have a copy of that agreement before you?
PN1011
THE DEPUTY PRESIDENT: Yes, I do and the decision.
PN1012
MR MANOS: Yes, pardon me. There’s some informative discussion about enterprise agreement interpretation at paragraphs 19 to 39 of this agreement and I don’t intend to take your Honour through it piece by piece, but the effect of it is that this Full Bench decision confirms firstly the approach that ought to be taken when interpreting enterprise agreements in that the same principles when interpreting contracts are to be applied. Then the Full Bench turns to how do courts interpret contracts and it turns to this issue of ambiguity in contracts and the extent to which evidence of surrounding circumstances is admissible when seeking to prove what a contract says.
PN1013
There’s been a lot of debate about this issue for the last 10 or so years. Obviously there was Codelfa 25-odd years ago which laid down the basic principles and then there was a whole lot of decisions by intermediate courts about what the court meant by Codelfa and there were some conflicting views about should you be admitting evidence even on a provisional basis in order to work out whether there’s an ambiguity or not. The High Court has recently confirmed that Codelfa is the correct approach.
PN1014
In my submission, the effect of that, the effect of the High Court’s decision and the effect of this Full Bench decision is clearly set out in paragraph 41. The Full Bench has very usefully summarised the principles and, if I may, I intend to take your Honour just briefly through them. The first applies to the Acts Interpretation Act. That has no relevance here. The second is in construing an agreement it’s necessary to determine whether there’s a plain meaning or an ambiguity.
PN1015
Number (3), regard may be had to the evidence of surrounding circumstances to assist in determining whether an ambiguity exists. That's the gateway in which the evidence of surrounding circumstances can get in. It’s only if there’s an ambiguity and the surrounding circumstances is admissible to work out whether there is an ambiguity, but ultimately as the Full Bench says in point 4, if the agreement has a plain meaning then the evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement. We say that’s the case here that there is no ambiguity and I'll expand on that submission further when I come to explaining the enterprise agreement.
PN1016
Number (5), if the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstances will be admissible to aid in the interpretation of the agreement. Ultimately, of course, the words of the agreement are what determine the objective intentions of the parties. That's how the parties have recorded their intentions and that should always be the primary source for trying to interpret what the parties have agreed between them.
PN1017
Then (6) goes on to describe how the admissible evidence of surrounding circumstances is to be used and it says, “The evidence of the objective framework of fact will include the matters set out in (a), (b) and (c).” And (7) confirms the point I’ve just made that the resolution of the disputed construction will turn on the language of the agreement, having regard to its context and purpose. It goes on to point out where that context may be derived from, but confirms again at (9):
PN1018
Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. The common intention is to be identified objectively, that is, by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.
PN1019
In other words, you have to return to the agreement itself to work out what it is the parties have agreed and that’s an objective test. Matters of opinion about what you think it means or what you intend it to mean don’t really have any application. Finally (10), stating the obvious, but of course interpreting an agreement doesn't involve rewriting to achieve what might be seen as a fair or just outcome. The task is always one of interpreting the agreement produced by the parties.
PN1020
So to the extent that my friend was putting forward a submission that in all cases, surrounding circumstances about subjective opinions and what’s gone on in the past and what might have been intended are admissible, this Full Bench decision would say that that is incorrect and it is only when there is an ambiguity that that gateway opens and that evidence is allowed in. We haven't objected to the union’s evidence about what has gone on in the past for the reason that’s set out here that your Honour sometimes has to hear some of this evidence in order to work out whether there is an ambiguity or not.
PN1021
One of the examples that I’ve heard given before around this issue and where evidence is necessary to work out whether there’s an ambiguity was given by Lindgren J in a speech last year and what he said was if there is an agreement, a contract let’s say, to sell a house, X agrees to sell his house to Y for a certain amount of money, but the contract itself doesn't stipulate the actual property to be sold, on the face of the agreement there is no ambiguity, but if X in court proceedings is allowed to admit evidence that he actually has two houses, well then we have an ambiguity. It’s only once you hear that evidence and you can work out that there is an ambiguity because if X only had one house there wouldn't be such an ambiguity and the contract would speak for itself.
PN1022
What we say here is even after the introduction of the union’s evidence about what’s gone on in the past, there is no provision in this enterprise agreement which is ambiguous, not when it comes to the introduction of shift work and what I intend to do now is to take your Honour through the relevant provisions in the enterprise agreement.
PN1023
THE DEPUTY PRESIDENT: Yes.
PN1024
MR MANOS: If I might start at the beginning, I'll do this in a thorough way because there are provisions all over the place. I might just start with the table of contents. What we say is clauses 1 to 6 have little to no relevance. We say clause 7 is important and that’s the purpose and principle objectives clause and I'll take your Honour to that in a second. We say clauses 8 through to 14 have no relevance. Attachment 1 we say has no relevance. Attachment 2 is relevant. That contains the terms and conditions. The remaining attachments have no relevance as well, although I will address your Honour on attachments 10 and 11, the flexible working arrangements.
PN1025
If I could ask your Honour to turn to clause 3. That's the incidents and parties bound and as your Honour is no doubt aware, sometimes in these types of cases enterprise agreements incorporate previous awards and previous enterprise agreements. This isn't such a case. The agreement is limited to the terms and conditions contained in this document alone. Clause 6 does point out that the terms and conditions covered by this agreement are set out in attachment 2. Clause 7 deals with the purpose and principle objectives of the agreement.
PN1026
As I said in my opening this is a very important clause for your Honour to take heed of, in my submission, because what it does is it anticipates that there will be change. It starts off – it’s split into two paragraphs – the first, the objectives to the agreement are, and it sets out the dot points and what we say the relevant ones are, are (3) and (4):
PN1027
To assist utilities management to remain a profitable and enduring enterprise for the mutual benefit of the customers, owner, employees and the community.
PN1028
So there’s an emphasis on profit there. Dot point 4:
PN1029
To meet the particular needs of utilities management in its endeavour to achieve its vision, maximising shareholder value as a national leader in terms of competitiveness and profitability in the electricity and energy businesses.
PN1030
So they are objectives that the parties have agreed to, that the employer does have particular needs and those needs are remaining competitive and profitability. The second paragraph talks about the parties working collaboratively towards implementing business changes necessary to improve performance. So once again, it contemplates that there will be changes which will need to be made during the life of the agreement and some of those changes, the types of changes, are then set out in the dot points. There may need to be productivity improvements is the first dot point and the final one is business plan financial outcomes. What we say is that there is a strong focus in this objectives clause on both productivity and on profitability.
PN1031
Your Honour will see in that first paragraph, the third dot point, uses the word “profitable”, the fourth dot point, “profitability” and it uses the words “productivity” a number of times as well and “financial outcomes”. So there is a focus on that and that is the context in which this agreement needs to be read.
PN1032
THE DEPUTY PRESIDENT: What do you understand by “work collaboratively” to mean?
PN1033
MR MANOS: Yes. Obviously, that means the party – I say “obviously” – that is a generalised term and we say what that means is the parties working together. It doesn't require codetermination. There are particular provisions in this agreement which do require codetermination and they are explicit and they say, “In order to do this, there needs to be the agreement of both parties,” but there are other provisions which don’t go that far and only require consultation. We say the introduction of a shift roster is such a provision.
PN1034
Clause 8 we say has no relevance, the same with nine. I'll address your Honour briefly on clause 10, no extra claims. This is obviously a clause which is included in most enterprise agreements and, of course, what it really means is that to the extent the parties have agreed to certain terms and conditions then another party should be bound by that during the life of the agreement. So to the extent you've struck a deal, you need to stick by the deal during the agreement and not push the boundaries any further.
PN1035
My understanding of the history of it is that, of course, it relates to wage increases and to the extent that wage increases have been agreed then that shouldn't be bargained for any further during the life of the agreement. This does go a step further and talk about terms and conditions, but of course subject to what’s been agreed in the agreement itself and we say that the agreement objectively seen does allow a mechanism for this employer to introduce what it’s intending to introduce.
PN1036
We also say that this provision can’t be reasonably read to mean that the employer is unable to exercise rights that it has under the employment contract otherwise what’s the point of an employment contract? This agreement quite clearly does not comprehensively set out terms and conditions of employment for each employee. In some ways it’s bereft of details, particularly around naming specific groups of employees within this organisation, and saying, “These are your hours of work. This is how you're to work.” It splits them up into schedule 1A and 1B employees and it just deals with them in this generic way.
PN1037
The contracts of employment in this case has some work to do and that cuts both ways. I mean, there must be matters agreed in the contracts of employment which benefit the employees which aren’t set out in the enterprise agreement and it would be a farce if the employees couldn't exercise their rights under the contract because it falls within the jurisdiction it’s a no extra claim. That can’t be the case.
PN1038
Clause 11 deals with dispute and issue resolution and this is a very important sentence, in my submission, as to how this commission is to deal with the issue before it. It refers to clause 11 of attachment 2 and it says, “The issue resolution process there is to be followed as a means of resolving disputes arising out of this agreement.” Often that sort of phrase is found in the dispute resolution clause itself where there are disputes about the agreement or arising out of the agreement that they're to be referred to the commission.
PN1039
Attachment 2 clause 11 is a little bit unusual in this case, in my submission, because it doesn't make such a reference. It just says, “If there are issues of concern then they can be referred to the commission.” But the way, as I said in my opening, the commission should deal with those issues is it really should be dealing with the issues arising out of the agreement itself. Indeed, when one looks at the union’s written submissions at least, that’s how they seemed to have dealt with this issue that it is dealt with almost exclusively on the basis of what the enterprise agreement provides for.
PN1040
Now, the case seems to have morphed a bit and included now these personnel issues and that’s come out through the statements and I'll address your Honour on that, but the extent to which your Honour ought to take those matters into account we say is limited and there really should be a focus on disputes arising out of the agreement itself.
PN1041
I'll now turn to attachment 2 on page 13. That provides a further content to what’s in attachment 2. I can identify which of these provisions are immediately irrelevant from the employer’s perspective and they are clauses 1 and 2 we say are irrelevant. Clauses 3.1 and 3.2 are important. 3.3 and 3.4 are irrelevant, as is clause 4. We say clause 5 has some work to do, but the rest of the provision does not nor do clauses 6, 7 or 8. Clause 9 is obviously central to the argument. Clause 10 is irrelevant. Clause 11 is relevant and the appendixes we say are also irrelevant although I will touch on appendix 1 under the heading Appendix 1B Positions, otherwise we say that the rest of appendix 1 is irrelevant.
PN1042
I turn now to address your Honour on clause 3, consultation. This is the clause we say that enables the employer to make the changes it’s proposing. I'll take your Honour through each of the paragraphs. At 3.1.1 it’s entitled Introduction, it refers to open and honest consultation. Paragraph 2 talks about requires informed discussion where there is consultation on workplace change likely to have a significant impact on an employee or employees and then it goes on to define what that means, but that’s important because that’s the general clause which states that if you're going to make a change - the usual type of provision, if you're going to make a change that’s going to have a significant impact then you need to consult on it.
PN1043
The next paragraph deals with extraordinary circumstances. We say that doesn't have any relevance here and the next paragraph, final paragraph of 3.1.1 deals with representation. 3.1.2 sets out the principles of consultation. The first paragraph acknowledges the role of unions and employees. The second deals with the timing, method and extent of consultation. The third sets out the actual obligation itself. So the employer must consult on any change or proposal likely to have a significant impact. The final subparagraph of 3.1.2 is the aim of consultation and minimising any adverse impact.
PN1044
3.1.3 is entitled Guidelines. That talks about the first paragraph. It talks about timing. The second talks about the type of information that’s to be provided and the final – over the page on page 33 at the top there, it talks about minor matters, so there are certain issues which don’t require consultation and the final paragraph talks about not limiting the rights of parties. Clause 3.2 sets out a different obligation. It’s entitled Consultation on Changes to Roster or Ordinary Hours of Work. So immediately what becomes clear is that the parties have included a provision which allows the changes to ordinary hours of work and it’s very explicit. It says:
PN1045
If utilities management proposes to make changes to employees’ regular rosters or ordinary hours of work, the process for general consultation outlined in subclause 3.1 will apply. In addition to that process -
PN1046
so there’s an additional burden –
PN1047
the employer will ensure that -
PN1048
it sets out the three dot points, but in summary it will provide information. It will give them an opportunity to express views and it will properly consider those views. Finally, there’s an exclusion at the bottom which doesn't apply to casuals. What we say is that this subclause is a subclause which applies to exactly what is before the commission, that there is a proposed change to a roster or ordinary hours of work and that’s what’s required is consultation in accordance with clause 3.1 and that is precisely what’s occurred.
PN1049
It’s my understanding that there is no dispute that this employer has engaged in consultation. They might dispute whether there has in fact been agreement about it. Clearly, there has not been agreement, but clause 3.1 doesn't require agreement, of course. The principles of consultation are clear. Codetermination is not required, merely genuine consultation. In those circumstances this employer has complied with its obligation under the enterprise agreement.
PN1050
What’s interesting about this agreement is that this is the first time to my knowledge that there has been a provision in an enterprise agreement between these parties which has actually allowed for a change to a roster for ordinary hours of work.
PN1051
THE DEPUTY PRESIDENT: That's the model clause as amended.
PN1052
MR MANOS: Yes. So on one view it reflects the statutory obligation, but of course by including it – pardon me, I withdraw that. The obligation on the parties is to include a term in an enterprise agreement which at least meets the obligation under the consultation provisions of the enterprise agreement. What’s not required is my understanding is the exact consultation term provided for in the Fair Work Act itself. So the parties are entitled to bargain for terms and conditions which are more generous to the employees if they so choose.
PN1053
THE DEPUTY PRESIDENT: Look, the scheme of the act is that the consultation provision has got to have certain features as a minimum.
PN1054
MR MANOS: It does.
PN1055
THE DEPUTY PRESIDENT: And then you are above that there’s probably scope for negotiation.
PN1056
MR MANOS: Yes. Clauses 3.3 and 3.4 have no work to do in this particular case. My friend referred to these provisions, but I'm unsure for what purpose. Clause 3.3 deals with the selection of providers of supplementary labour and contract for services. That clearly isn't the case here. Clause 3.4 deals with setting up a forum, how the consultation communication is to take place through this particular forum, but there is no issue as far as I understand. Again, there’s been no evidence led from the union. There was nothing in their written submissions to suggest that consultation has been an issue and that ought to be accepted by the commission.
PN1057
Clause 4 then deals with classification remuneration. I’ve said to your Honour that has no work to do so I won’t address your Honour on it. Clause 5 deals with ordinary hours of work – day workers. 5.1 sets out the normal hours for day workers and the span of hours is to be 7 am to 5.30 pm, Monday to Friday inclusive. It doesn't specifically name the CBD work group as day workers. It doesn't name any particular group within this employer as falling within the category of day workers. What it does is it provides for merely a span of hours of work.
PN1058
Of course, in this case these employees have been working 7 am to 3.30 pm, which has been within the span of hours, and the work we say at 5.1 subclause (c) has to do is that within the above parameters, in other words within the ordinary hours of work set out above, the start and finish times and length of the working day are by agreement. So we say the effect of that subclause is if there’s to be any change within the span of hours then it’s to occur by agreement between employees and local management. But, of course, what we’re proposing to do is not to vary. The variation is not within the above parameters. It sits outside those parameters. That's the wording which is also reflected in clause 9 when it comes to altering shift arrangements.
PN1059
What we say is it might be counterintuitive, but if there’s to be a change within the span of hours for day workers, that has to be by agreement. If there’s to be a change for shift workers, so in other words those that are already working shifts – if there’s to be a change to those shifts that must be by agreement, but where there are to be wholesale changes then it’s to be conducted in accordance with clause 3.2. It merely requires consultation.
PN1060
There might be a certain level of counter intuitiveness to that, that on the one hand they’ve agreed that they have to agree certain changes, but they haven't agreed others but the point is this: that’s what the agreement provides for and there’s no ambiguity about that issue. The common intentions of the parties to be determined by subjective reference to the wording of the agreement itself is to provide that mechanism. The rest of clause 5 we say there’s no work to do nor does clause 6. If I could take your Honour to clause 9 on page 81, 9.1 deals with the general and what it says is:
PN1061
The principles outlined in this clause relate to a 37 and a half week (and/or 36-hour week) for appendix 1B employees from 1 July 2006.
PN1062
So what’s immediately apparent is that appendix 1B employees aren’t excluded from the possibility of working shift work; in fact, it’s specifically contemplated.
PN1063
THE DEPUTY PRESIDENT: I think there’s evidence about afternoon shifts.
PN1064
MR MANOS: Yes, precisely. What is also apparent is that there is no carve out in clause 9 which excludes the CBD work group. Nowhere in clause 9 does it say the CBD work group are exempt from shift work. Nowhere in the agreement does it say that the CBD work group are exempt from shift work. It just doesn't distinguish and nor does it distinguish in any way throughout the whole agreement. What we say, of course, is that doesn't give rise to an ambiguity. It just states the general and what can be discerned from this is that it’s left up to other clauses in the agreement, they have work to do to allow changes to be made and so do contracts of employment because it’s an enterprise agreement which operates very much at the general. It doesn't seek to set out in explicit detail all the terms and conditions which apply.
PN1065
What we say by reference to clause 9.2 is that we’re seeking to introduce non-continuous shift work and that the three shifts on the Monday to Wednesday will be standard night shifts and they fit that definition. What the employer is proposing to pay is in accordance with 9.3, shift allowances. Your Honour will see - and this might in fact answer the question that arose earlier – that a shift allowance is anticipated for Sundays and that’s to be paid – there would be 100 per cent loading and obviously for the standard night shift 22 and a half per cent.
PN1066
There is a separate clause which actually deals with overtime for non-continuous shift workers at 9.6.2 and that also sets out pay rates for work performed at a different time and that anticipates work on a Sunday, too. We say 9.4 has no work to do, pay equalisation. 9.5 merely sets out the ordinary hours of work, but doesn't set out the span of hours except for the average hours of work to be performed over a roster cycle in a week. 9.6 deals with overtime.
PN1067
THE DEPUTY PRESIDENT: Just on the ordinary hours of work, if the Sunday is overtime, and I haven't got a view on that yet, but how does that sit with the 36-hour week?
PN1068
MR MANOS: In my submission, it can’t be seen as overtime, your Honour, because these individuals are all contracted to work 36 hours a week and within the 36 hours is the work on a Sunday.
PN1069
THE DEPUTY PRESIDENT: It’s 36 ordinary hours, isn't it? Isn’t that the contracted hours?
PN1070
MR MANOS: 36 ordinary hours, yes. But what they're being on a Sunday is not overtime. They're being paid a shift allowance.
PN1071
THE DEPUTY PRESIDENT: Possibly.
PN1072
MR MANOS: Well, I think that’s the intention.
PN1073
THE DEPUTY PRESIDENT: I'm just putting a proposition to you.
PN1074
MR MANOS: Yes.
PN1075
THE DEPUTY PRESIDENT: I don't have a view on that yet, but it seems to me that’s one issue I'll have to turn my mind to as to whether the Sunday is a Sunday worked within a shift work provision or it’s a Sunday worked within the day work provision, in which case it’s overtime.
PN1076
MR MANOS: Yes. We would say the only reasonable way of interpreting it would be to interpret it as part of ordinary hours a week, firstly, because the enterprise agreement actually anticipates shift work to be performed on a Sunday and it provides for a shift allowance.
PN1077
THE DEPUTY PRESIDENT: But they're not working shift work on a Sunday.
PN1078
MR MANOS: On one view all the work they're performing is shift work under the proposed roster and your Honour will see in that table there under clause 9.3 shift allowances, weekday, ordinary rate only. If that table at 9.3 didn't actually provide for a shift allowance for a Sunday then I might be inclined to your Honour’s view that what they were working would be overtime, but the fact that it’s specifically anticipated, in my submission, is the answer to that issue. Clause 9.7 deals with rosters. 9.7.1 is entitled Shift Rosters. It says:
PN1079
Shift rosters will specify the commencing and finishing times of ordinary working hours and the maximum which is to be worked and in the absence of any custom or agreement, a roster will ensure not more than eight hours in any nine consecutive days.
PN1080
We say our roster complies with that. 9.7.2 then deals with variations to rosters. So what it anticipates is if you've got a roster and you want to change it then this is how you go about doing it. It must be done by agreement and we agree that that’s what this provision provides for. In the same way for day workers in their ordinary hours of work, that’s also what it provides for. So what we say is that once introduced, this employer will not be able to vary those shifts unless by agreement. That seems to have been implicitly accepted by the union in its written submissions at paragraph 27. It has interpreted that provision in the same way that I’ve just put forward.
PN1081
Clause 9.7.2.2 on page 84 deals with replacement of an employee on a shift roster and (a) is the relevant subclause and it requires an employee to give a minimum of 48 hours’ notice. 9.7.3 we say is important because that allows for employees to swap shifts between themselves and what it says in subclause (a) is that an employee may swap another shift and the effect of that will be that both employees will be paid as if they had worked according to the roster cycle. We say this is an important mechanism to mitigate any of the detrimental effects that might impact on these employees. That, in combination with the fact that the roster, I'm instructed when it does finally come out, will be out 12 months in advance and that will provide employees with plenty of opportunity to swap shifts. That, in combination with this generous provision about swapping shifts, will provide the flexibility that means the personal effect will be mitigated.
PN1082
Your Honour also heard this morning from Mr Brownley that in light of some of the personal issues which have been raised in these proceedings, the employer is prepared to make a generous concession to defer the implementation of the roster - by the time your Honour puts out a decision I anticipate it will be January and the proposed implementation dated January 17, we accept just might not be enough time for some people to make the necessary arrangements. So in light of that, the employer has made the generous concession to delay that implementation and that three months ought to be enough time to allow employees to make appropriate arrangements and I'll address your Honour a bit further on that later on.
PN1083
What we say really in respect of the remaining provisions of clause 9 is that the proposed roster complies with the rest of these provisions and the terms and conditions which will – the entitlements and benefits which are provided for here will be provided to the employees.
PN1084
THE DEPUTY PRESIDENT: I take it 9.7.3 paragraph (a) – so someone who’s rostered on tonight swaps with someone on the day then the person who’s rostered still gets the night shift penalty and the person who takes that that person’s place gets paid as a day worker?
PN1085
MR MANOS: On the face of it that’s what the provision would appear to say. I don’t want to be interpreting on the run here.
PN1086
THE DEPUTY PRESIDENT: I'm sure, yes.
PN1087
MR MANOS: But that’s what it appears to say, yes.
PN1088
THE DEPUTY PRESIDENT: Okay.
PN1089
MR MANOS: So, in other words, an employee will not be worse off because they’ve swapped out of a shift.
PN1090
THE DEPUTY PRESIDENT: Unless they're a day worker, yes, they won’t lose money. I accept that.
PN1091
MR MANOS: No, they won’t lose money. Yes. And, of course, there may be some employees who want that additional money and that seems to be what’s happening now is employees - - -
PN1092
THE DEPUTY PRESIDENT: But presumably that would also apply to people who might want to change a night shift with another night shift worker, so just change the day or the evening on which they work the night shift.
PN1093
MR MANOS: Yes, yes. It may occur by swapping. So a person working a day shift may swap it for a night shift or an individual might choose just to pick up the shift, pick up a night shift off someone without swapping another shift back.
PN1094
THE DEPUTY PRESIDENT: Yes.
PN1095
MR MANOS: That might also be possible and what’s clear from this group of employees is that there are a certain number of them who are prepared to work unsociable hours in order to earn additional money. What we say for some of the individuals who might have difficulties working on a Sunday, even if it is just once every four weeks, is they will probably have little difficulty swapping out a Sunday shift at double time to at least someone in the group and when it comes to custodial arrangements, this will provide the flexibility for those individuals if they are unable to obtain flexibility anywhere else.
PN1096
As I said, your Honour, the remaining benefits and entitlements under clause 9, the employer intends to comply with and don’t appear to be in issue. Clause 10 is not in dispute and doesn't assist the commission. Clause 11 is issue resolution. I won’t take your Honour through it word by word, but obviously the key sentence is the first line in paragraph 4:
PN1097
All issues of concern to management employees, including all disputes arising under this agreement or under the national employment standards will be dealt with in accordance with the following procedure.
PN1098
This clause we say entitles the employees or management to access the Fair Work Commission about all issues of concern, but that really when it comes to arbitrating such matters and deciding them that they should be dealt with through the prism of the earlier clause I referred your Honour to, clause 11 of the main part of the agreement, which is resolving disputes arising out of this agreement. The only other provision I wish to address your Honour on under the agreement was the flexible work provisions starting at page 131, so that’s attachment 11.
PN1099
THE DEPUTY PRESIDENT: Just before you do.
MR MANOS: Yes.
PN1100
THE DEPUTY PRESIDENT: Just on the issue resolution, so I understand your submission to be that essentially the commission can’t make a determination which is inconsistent with the terms of the agreement as you've put them forward.
PN1101
MR MANOS: Yes. That's part of it. Yes. It certainly shouldn't be inconsistent with the agreement. I would go one step further, but perhaps I'll let your Honour finish the question.
PN1102
THE DEPUTY PRESIDENT: The point I was going to make was whether that clause might be something that’s available to an individual employee in the context of not being able to meet a particular shift roster because of the personal circumstances.
PN1103
MR MANOS: Yes. It may well be, yes. Of course, no doubt, my client will say that steps should be taken to try to resolve it internally before it comes to the commission, it goes without saying.
PN1104
THE DEPUTY PRESIDENT: I'm sure.
PN1105
MR MANOS: Yes. That might be available. The general thrust of my contention, your Honour, is that this can’t be seen as some sort of liberty for an employee to have any sort of issue at large decided there’s an issue of concern otherwise if one was to take an extreme view, matters of workers' compensation and perhaps other matters that are still arising out of the workplace which are issues of concern might be arbitrated by the commission.
PN1106
THE DEPUTY PRESIDENT: But doesn't the issue of the hours of work arise out of the agreement?
PN1107
MR MANOS: We don’t dispute the fact that this commission has jurisdiction to deal with this issue. We just say in determining the issue and the relevant factors to take into account, we say there should be a focus on the way the dispute arises out of the agreement and the focus on what’s been agreed between the parties and the agreement itself. There should be some legal basis for any decision about the issues that have come up.
PN1108
THE DEPUTY PRESIDENT: Yes. Sorry, you were just going to turn to one of the - - -
PN1109
MR MANOS: Sorry, your Honour, page 131.
PN1110
THE DEPUTY PRESIDENT: Yes.
PN1111
MR MANOS: It’s attachment 11. Yes, so this is the flexible working arrangements. My understanding is that this is a mechanism by which an employer is able to agree with an individual about flexible working arrangements, but that it is limited to Monday to Friday work and one can see that under the heading Principles of Operation, the third dot point. One can also see two dot points below that:
PN1112
The span of ordinary hours of work shall be 6 am to 6 pm and on a special needs basis and by agreement between (indistinct) and colleagues the span of hours may be varied.
PN1113
So it’s very limited this flexible working arrangement as to the types of agreements which can be reached under this provision, which is why we say it’s not appropriate and has not been utilised by this employer.
PN1114
THE DEPUTY PRESIDENT: There’s nothing equivalent for the shift workers – any agreement?
PN1115
MR MANOS: No, not that I'm aware of. My reading of it was it’s only clauses 9, 10 and 11 and, again, the way it’s distinguished between the employee groups is through 1A employees in attachment 9, so white collar workers, and then 10 and 11, 1B. Again, that seems to be the general way this agreement deals with distinguishing between its different work groups. Your Honour, that concludes my analysis of the enterprise agreement. I still have a significant number of submissions to make.
PN1116
THE DEPUTY PRESIDENT: Do you want to have a break?
PN1117
MR MANOS: I just wondered if now might be an appropriate time.
PN1118
THE DEPUTY PRESIDENT: Yes, I think it would. So we'll reconvene at quarter past 2.
PN1119
MR MANOS: Thank you, your Honour.
<LUNCHEON ADJOURNMENT [1.09PM]
<RESUMED [2.17PM]
PN1120
THE DEPUTY PRESIDENT: Thank you.
PN1121
MR MANOS: If the commission pleases, I'll pick up where I left off before lunch and make some concluding remarks about the enterprise agreement. What I can say about the enterprise agreement with regard to the Golden Cockerel decision after taking your Honour through it is that there is no ambiguity. There is no one provision that the union can point to in this case which creates a conflicting interpretation which would allow admissible evidence in.
PN1122
At its highest, and the way the union has put its case, is that there is silence on this issue of an admission of a new roster. Even if that was to be the case, that would not be an ambiguity within the meaning contemplated in the Golden Cockerel decision and that would not allow evidence of surrounding circumstances to be admissible. It is only where there are conflicting interpretations, at least for the purpose of interpreting the enterprise agreement and where there are no competing constructions, we say the surrounding circumstances are inadmissible for the purposes of interpreting the EA.
PN1123
On our construction, of course, there is the mechanism that I’ve spent some time explaining to your Honour before lunch. I just wish to address briefly now some of the union arguments which have been put forward against us or in favour of the enterprise agreement preventing the introduction of this roster. The first, if I'm understanding their argument correctly, seems to be that these employees have never had to work night shift before. That's common ground. We say that’s irrelevant to the issue the commission has to decide, which is whether the enterprise agreement permits it or not and no ambiguity arises out of that.
PN1124
The second is that the manner of introduction has been unfair and what flows from that is that there must be agreement between the employer and workforce for there to be an introduction of the roster. What we say to that is that’s reading words into the enterprise agreement which aren’t there. There’s no provision the union is able to point to to say there must be agreement on this issue. What they're able to point to is provisions which say, “If you vary the hours of day workers there must be agreement,” and we agree with that. They say, “If you vary the shifts of a shift worker there must be agreement,” and we agree with that. I didn't hear any submissions from my friend about clause 3.2 and how that works, but obviously we say that that is the provision which enables the employer to make the changes that it wishes to.
PN1125
I'll come back to clause 3.2 in a moment. There’s something further I wish to add to my submission, but finally while I'm dealing with the arguments that are put to us about the enterprise agreement, my understanding is that there is also an argument that in the past when this employer has tried to introduce shifts that it’s been put to the vote previously. We say, firstly, that provides no assistance whatsoever to interpreting this enterprise agreement. Of course, parties can adopt views about what they are or aren’t entitled to do and how they act in the past does not in any way determine what their rights are under an instrument or agreement. But, secondly, those facts are materially different to what’s before your Honour.
PN1126
Mr Gallina addresses that issue in paragraphs 27 and 28 of his statement. What he says about those past votes is that they were votes which occurred when they were looking to combine shift rosters. So there were already shift rosters in place and as your Honour has seen, there’s scope in the enterprise agreement for a change once a shift roster is already in place. That has to be done by agreement and that’s why that occurred. Secondly, the other material difference was that those employees did not have a clause in their employment contract which allowed for any mechanism for the employer like there is in this case.
PN1127
Of course, the issue of employment contracts is a separate one to the enterprise agreement. If the employer can’t make this change under the enterprise agreement then it can’t make the change. If it can’t make it under an employment contract, well for that particular employee will be in breach of that contract, whether that’s a material breach or not is another question, but if both the enterprise agreement and the contract allow for it, as we say, then there is no such difficulty.
PN1128
Your Honour, if I could take you to address clause 3.2 and the issue of the consultation term. I made some submissions before lunch about the model consultation term and how that operates. Could I take your Honour please to section 205 of the act. Subsection (1) there provides that a consultation term must be included in an enterprise agreement. It’s (1)(a)(ii) which says the term must include – it must require consultation if there’s a change to regular roster or ordinary hours of work. Then subsection (2) goes on to say:
PN1129
If an agreement does not include a consultation term, the model consultation term is taken to be a term of the agreement.
PN1130
So if it doesn't meet those requirements you have to use the model consultation term. What the employer seems to have done is to have agreed a consultation term which obviously complies with the act, but which is in a different form than the model consultation term, which is schedule 2.3 to the regulations. I won’t take your Honour to that, but your Honour will see when you get a chance that the model consultation term is not framed in the same way that the enterprise agreement terms are. There has been something additionally included in 3.2 which is that casual employees are excluded. So this isn't just a case of the parties have just slapped in the consultation term without giving any thought, in my submission.
PN1131
I now wish to address your Honour on the issue of safety, which is topic number (4) that I foreshadowed with your Honour when I commenced. The evidence of the employer about safety has been provided by Associate Professor Thomas this morning and he has comprehensively described his assessment of the roster. Your Honour heard the evidence this morning that he has worked with this employer for some time and he’s familiar with its work arrangements and, in particular, the CBD work group.
PN1132
He told the commission that, of course, inherent in any workplace is risk, inherent in any shift roster is risk, but that that risk is manageable. In this case, he said, applying the criteria in the relevant authorities and publications and applying the table set out on page 4 of his report, he concluded that on the spectrum of shift rosters, this is one which has a low level of inherent risk. According to the factors that he thought were relevant, this roster meets all those requirements. Then he gave some evidence about the policy and his evidence about the employer’s policy was twofold: (1) there is a policy already in place and it’s important that that’s the case.
PN1133
There is already a fatigue management policy in place and that’s been tendered and that’s at SAPN8. Amongst other things, that policy provides for rest periods, minimum breaks, stand downs, instruction and training and the fact that if an employee is fatigued they must report this to their supervisor and agreed to ensure safety is not put at risk. So there is already a policy in place, but my understanding of his evidence was that there is another policy that’s in the wings that is even better and which goes one step further and includes these calculators and these more sophisticated ways of working out whether someone is fatigued or not and is able to work. He concluded at paragraph 26 of his report that, effectively, what these employees are already doing is shift work. He said after analysing what they were doing:
PN1134
To this end, shift work is systematically already taking place by the CBD work group, but under the auspices of planned overtime and on-call availability work.
PN1135
He further concluded that providing shift work in a more - I think his words were an ergonomic roster, “An ergonomic shift work design,” at paragraph 28, “actually increases the safety for some of those – particularly those employees who are already working significant amounts of nights because it allows that planning to take place.” So his conclusion was that the roster provided a low level of inherent risk, that it was important particularly with the inclusion of the availability roster that that risk be managed and that there’s already a policy, but there’s an even better policy coming in and he said there are potential benefits to the way the employer is doing this. It’s important for the commission to note that this evidence was all uncontradicted. There was not an alternative expert view put forward and, in my submission, Associate Professor Thomas’ analysis ought to be accepted in full.
PN1136
On the topic of the contractual issues, topic (5), the evidence which is contained in Mr Gallina’s statement is that 25 of the employees in the CBD work group have contracts which contain a common clause. That clause states:
PN1137
Depending on business requirements, you may be required to participate in an availability roster and/or shift roster.
PN1138
On any reading of that clause, the employer has a right to introduce either an availability roster or a shift roster. It’s not equivocal in any way. There can be no ambiguity about what that clause says. We say that that clause doesn't influence how the enterprise agreement is to be interpreted because that would require an ambiguity of some sort and we say there is none, but it’s important for the commission to note because if there wasn't such a clause, there could be a risk that this employer could be in breach of contract, even if there was a right under the enterprise agreement to introduce such a roster. That could be a possibility, depending on the individual and whatever implied terms and express terms apply to them.
PN1139
There are three employees who are TSW8s who don’t have written contracts of employment, but they have position descriptions and those position descriptions were tendered to the commission yesterday and they provide that the individual may be required to work availability or shift duties, depending on the operational requirements at the work location. Mr Gallina gave evidence that that was a position description, and this is important, which was agreed with the CEPU in April 2002. It was agreed with the union after 12 months of consultation. So this isn't something that’s come by way of surprise. This is something that’s been in the wings for a while, at least the ability for this employer to make this change and that evidence is set out at Mr Gallina’s statement at paragraph 23.
PN1140
Similarly with the employment contracts, this isn't a case of 12 months ago the employer is suddenly pushing an employment contract on everyone to introduce this right to make a change. Mr Gallina’s evidence was that from the year 2000 onwards these contracts have been changed to introduce this particular clause. Of course, it’s of absolutely no significance whatsoever whether these contracts are pro forma contracts are not. Mr Smith’s subjective beliefs about what that clause meant means absolutely nothing nor does it matter that all of the employees have a similar clause. Of course, there are the six employees in this case, I advised the commission yesterday, who do not have a written employment contract and do not have a position description and the employer at this stage is not proposing to put them on to this night shift roster.
PN1141
I will address your Honour now on topic (6), the personal issues which have been raised by the employees. I'll start by addressing your Honour on the evidence that was given by some of the employees and making some observations about their evidence. The first point I’d like to make is that there was an element of overstatement in the evidence that these employees put forward. There was an element of that; statements like, from Mr - - -
PN1142
THE DEPUTY PRESIDENT: Pagliese.
PN1143
MR MANOS: Thank you.
PN1144
THE DEPUTY PRESIDENT: I don't know if that’s right.
PN1145
MR MANOS: That's easy for you to say.
PN1146
THE DEPUTY PRESIDENT: Not really.
PN1147
MR MANOS: That individual gave evidence at paragraph 23 of his statement that the changes would have a huge financial impact on him, but when pressed on this he made it clear to the commission that what it might mean is he will have to reassess some of his holidays, that he'll be able to survive. He'll be able to pay his bills and, further, that he hadn’t crunched any numbers on what this might mean for him.
PN1148
Another example from the same individual at paragraph 20 of his statement was that he'll be forced to seek alternative employment. That was a line which was trotted out by Mr Smith as well and in an identical form, “I will be forced to seek alternative employment if this employment roster is introduced,” but of course when pressed he was happy to amend that to, “I may be forced to seek alternative employment.” So he had overstated his position on that.
PN1149
The second point I wish to make about the evidence is that it was full of conclusions with little substantiation. So one of the statements made by Mr Nagel, and in fact was common to the statements already – it was common to many of the statements – was that they are concerned about the proposed change and the impact it will have on their family. But it was unclear how working three shifts in a four-week period, three night shifts, will have an impact on their family and some of them did go on to describe some of those changes and some of them didn't describe them at all. With people like Mr Nagel, it’s difficult to comprehend how this change could have a significant impact on his family and his family life when he’s already working a significant amount of overtime at nights. So that just wasn't explained at all.
PN1150
Another conclusion made without any substantiation whatsoever in any of the statements as far as I could see was that, “I am concerned about the safety implications.” But, again, that wasn't expanded on in any substantial way. Those comments ought to be disregarded. Another comment that was made by Mr Nagel, an example of a conclusion that really didn't have much of a basis at all was that as a result of this proposed roster, he said his children will suffer a reduction in their extracurricular activities and he attached a note from his daughter to that effect. But when one goes and reads the note from the daughter, what it says is, firstly, that she has basketball training on Sundays and she’ll still be able to make it, although she’ll have to get up early; and secondly, “Dad gets angry a lot when he’s tired,” which, quite frankly, is more of an indictment on Mr Nagel than it is on the proposed roster.
PN1151
The third observation I wish to make is about what I'll call the copying and pasting of some of the statements. Mr Jewell seems to be the biggest perpetrator of this. As your Honour heard, there were a number of sentences, paragraphs, in his statement which were just copy and paste jobs from Mr Nagel’s. There were 10 absolutely identical sentences which were repeated word for word in Mr Jewell’s statement and there’s a common theme throughout that with the statements, common terminology, that they are irritated by what’s going on; they're annoyed. It’s going to have a significant impact on family life, sometimes without any substantiation whatsoever.
PN1152
So, in my submission, it’s very difficult for the commission, although some of those individuals might genuinely hold some of those concerns – it’s very difficult for the commission to apportion much weight, if any, when it’s clear that what the employees have done is not used their own words in these statements.
PN1153
THE DEPUTY PRESIDENT: It wouldn't be unusual, would it, for employees to be interviewed and then for someone to draft up a statement to give effect to what they’ve heard? Maybe not presented the information in the statement verbatim for obvious reasons, but to draft it to give effect to the information that’s been received and then present it to the employee to see if it accords with what they believe?
PN1154
MR MANOS: I’ve got absolutely no difficulty with that process whatsoever, your Honour. The difficulty, of course, is they’re using identical wording.
PN1155
THE DEPUTY PRESIDENT: I guess what I'm coming to is that the employees may not have used identical wording, but they may have been drafted that way and it may still have been a reflection of what they actually said.
PN1156
MR MANOS: It’s difficult to imagine that’s exactly what they said. I mean, the whole purpose of putting statements in is that it is supposed to be really a representation of what that person would say if they hopped in the witness box and were asked questions about these things. This is one of the potential flaws of giving evidence this way – is that the drafter can take control of what the witness is saying and put their own gloss on the evidence.
PN1157
I hardly expected Mr Jewell or anyone else when I questioned them about it to resile from what was in their statement and, as I said, I'm not suggesting that some of these general themes weren't genuinely held, but when it comes time for your Honour to consider the personal impact on some of these individuals, the use of words like, “This will have a significant impact on my family,” when they're identical words used throughout the statement should have limited weight. No doubt, there may be some impact on the family, but whether it’s a significant impact in circumstances where those words have just been copied and pasted between statements should be a matter that your Honour takes into account.
PN1158
Finally, I note your Honour when it comes to observations about the statements that there’s not been any alternative that’s been put forward by the union, either in the statements or in this case as a whole, about – there’s been no alternatives put forward to solve the employer’s difficulties whilst meeting some of their requirements. So none of the individuals have said, “Look, this is going to be a massive problem on our family life.” They’ve said, “Well, look, maybe if it was reduced to two night shifts, maybe if the days of the week were changed, maybe if there was some other way of doing it then we could live with that possibility, but that hasn't occurred and that, in my submission, is because this work group, or at least the union who has brought this application, is intent on keeping the status quo. It isn't prepared to put forward any alternative because they just want the situation to remain as is. In other words, they're not genuine about trying to assist - or collaborate, to use the words of the agreement – this employer to find a way through its difficulty.
PN1159
THE DEPUTY PRESIDENT: Mr Manos, I'm not sure if it’s in the witness statements or not. I understand broadly the process of consultation that has gone on, but I'm not clear on the proposed roster with the night shifts and the Sunday work. Has that actually been distributed for comment?
PN1160
MR MANOS: I have to take instructions on that issue, your Honour.
PN1161
THE DEPUTY PRESIDENT: Yes. Perhaps if you could do that now.
PN1162
MR MANOS: Yes. I'm happy to do that.
PN1163
THE DEPUTY PRESIDENT: Thank you.
PN1164
MR MANOS: Still on the topic of personal issues, there are a number of steps that this employer is taking to try to mitigate the effects of this roster and the issues that have been raised in the evidence. One, as your Honour heard today from Mr Brownley, there will be a delayed implementation, subject to what your Honour decides in these proceedings. There will be a delayed implementation of the roster. It will now not commence until 11 April and that is a significant concession for this employer to make in light of the evidence to allow employees like Mr Smith, who do have, we accept, custodial issues and sharing arrangements with children, to try to make the changes that they need to make.
PN1165
The second is the ability for employees to swap shifts in clause 9.7.3. That is an important mechanism which will allow employees who might have some of those individual issues, either on a one off basis or on more than one occasion to swap shifts without financial penalty. That will be possible because – and long term planning will be able to okay because this employer is planning to release its roster 12 months in advance. So the roster will be released, a 12-month roster. So long term planning will be possible.
PN1166
Thirdly, this employer at its own expense has taken a number of steps to try to assist the employees to adjust to this new roster and one is the provision of an external consultant, Adam Fletcher. That's in the evidence and Mr Brownley gave some evidence about it today as well. He’s someone who provides assistance to people moving to different working arrangements and he can provide tips and advice to people about how to adjust to performing night work. Paul Raymond is a psychologist who is also able to provide assistance to employees who need it and Mr Brownley’s evidence today was that there is a mechanism for employees to access financial advice if they need it.
PN1167
In conclusion, I'll take your Honour back to the three issues that I opened with, which I thought were the three issues for your Honour to determine in these proceedings: (1) would the introduction of the shift roster breach the enterprise agreement: the answer to that is obviously no; and in fact it allows for such a change. (2) would the introduction of the shift roster present an unacceptable risk to work, health and safety: the answer to that is a definitive no. As Associate Professor Thomas attested to, for some employees it might actually result in a reduction of risk. For many employees there will be an increase in risk, but it’s a low level risk, it’s manageable, and the employer, we say, has a whole lot of structures in place to try to assist employees to deal with that risk.
PN1168
(3) are there any other factors that the commission should take into account: we say the contract, the position descriptions, from our perspective they're the two main issues. The personal issues are issues that your Honour may also take into account and I’ve dealt with those. May I also say on the issue of individuals with personal circumstances that aren’t able to be accommodated by the roster, a few individuals, two of the individuals who gave evidence about their personal custodial arrangements, there was evidence from two individuals about that, but as far as I understood it, there was no evidence from anyone else about that. There was no evidence even on hearsay that there are 10 other employees or 20 other employees with these difficulties. So in my submission their difficulties ought to be kept in that perspective.
PN1169
If I may just have a moment, your Honour, to take some instructions about the issue you asked me to?
PN1170
THE DEPUTY PRESIDENT: Yes.
PN1171
MR MANOS: Just before I come to my final summation, your Honour, in answer to your question about whether the employees have been consulted and the union has been consulted about this version of the roster, what I'm instructed is that on 26 February this year there was a presentation given to the work group. There was a version of the roster that was put forward then which included Sundays and it included four consecutive night shifts. Now, over the next six or seven-odd months, there were a number of meetings which took place and extensive consultation and then the first time that the version of the current roster was put to the staff and the union was on 2 September and that contained obviously the Sunday work and the three night shifts.
PN1172
At that stage it was proposed to introduce the roster at an earlier date than 17 January, but there’s obviously been a lot of movement around that. That's the first time that the roster was put to them, yes, and it hasn't changed since then is my understanding. There’s been paid opportunity. So there have been opportunities for staff to meet with the union on paid work time to discuss it.
PN1173
What I say in conclusion, your Honour, is that this is an employer seeking to formalise an arrangement which exists in many ways in a de facto sense, that it’s compliant with the enterprise agreement which isn't just silent on the matter, which would be enough, in my submission, to allow it to make that change, if it was silent as the union says, but in fact specifically provides for it. This change is provided for in the contracts of employment of the employees. It’s understandable that for some employees there will be a personal effect. Some of them will be affected, but three night shifts out of every four weeks with the ability to swap shifts and the ability to manage those shifts in advance will be minimal. We say they’ll be manageable and the employer is taking all the extra steps that I’ve outlined to your Honour to assist the employees.
PN1174
On the issue of safety, well, we've had the uncontradicted evidence of Associate Professor Thomas and not only is it uncontradicted, but it makes perfect sense what he said and he gave that evidence in an open and forthright way which ought to be accepted unequivocally. We say the union’s reasons for opposing this roster in isolation and in combination are not compelling or persuasive and they should not impede a decision which is properly characterised as falling within managerial discretion. If the commission pleases.
PN1175
THE DEPUTY PRESIDENT: Thank you. Yes, Mr Noble?
PN1176
MR NOBLE: Excuse me, your Honour. I'll be brief. I don’t want to labour the point about the drafting of the statements and so on, but I think when employees or anybody making a statement gets assistance from, you know, a lawyer who’s taken statements, certain phrases and terminology and are used and I have in front of me just a random three statements from the respondent, one of Tim Scutter, Mark Brownley and Adrian Gallina and the first two opening sentences are – in no particular order, “I am currently employed as,” and then followed, “I have been employed in this position since,” and Mr Brownley is the same, “I am currently as general manager. I have been employed in this position since.” Mr Gallina’s, “I am currently employed as,” and, “I have been employed in this position since.”
PN1177
I mean, it’s just a drafting assistance, but I don't think much weight should be placed upon the fact that it was probably taken by the same person who was taking the notes. It doesn't detract from what the underlying feeling behind it is. Just a few points: It seemed that the respondent was saying in its submissions that the day workers, as we call them, may be characterised as being day shift workers, but I don't think that contention really holds. If you look at their letters of offer or their contracts, whatever you'd like to call them, they all have a clause which says:
PN1178
PN1179
If they were considered to be shift workers, I think it would actually state in there that they were shift workers and then there wouldn't actually be a need to actually have them being available or required to work on a shift roster.
PN1180
THE DEPUTY PRESIDENT: I think the point being made is that once you do at least potentially one shift that’s not a day shift, it’s at that point that you become a shift worker, a non-continuous shift worker, whereas as I understand it, the time of appointment of these employees they would do all day work, so the shift roster was something different than what they were actually working.
PN1181
MR NOBLE: Some of them were doing afternoon shifts, one or two of them, I think, and there was the availability roster, but that isn’t per se the same as working on a shift.
PN1182
THE DEPUTY PRESIDENT: No. I take it that both parties seem to draw a distinction between the availability roster and the shift.
PN1183
MR NOBLE: Yes. Ma'am, my friend points to clause 3.2, the consultation clause, as being the mechanism that the shift can be introduced, but the wording of 3.2 is actually limited to changes to employees’ regular rosters and/or ordinary hours of work. It doesn't have anything in there in relation to the introduction of a shift. Just a few other points. I won’t revisit the day workers and whether or not it’s a shift allowance under 9.3 or overtime (indistinct) ordinarily paid. Our contention is that they're day workers and if they do work a Sunday then it would be overtime.
PN1184
In respect of clause 11, the original clause 11 not the one in attachment 2, I read that as meaning that anything which is included in attachment 2 is part of the agreement and as part of the agreement then clause 11, the clause in the attachment, then forms part of the agreement. So I don't think you can read it down just to dispute in the agreement without actually taking into account what clause 11 of attachment 2 - the way it is actually expressed. It is issues in relation to – including the agreement.
PN1185
Your Honour has already noticed that clause 3.2 was introduced because of the Fair Work requirements, introduced by Mr Shorten, I believe. There was earlier on some observation that some workers are going to be better off under the new proposed roster and I think the example was given of Mr Jewell. He may be better off, but his evidence was the fact that he came to the CBD because he didn't actually want to work these long shifts and he actually wanted a quieter life and he’s earning less money now than what he was then, I think it was $20,000, and he doesn't really want to participate in or make extra money. He just wants an easier life, especially with a new child on the way.
PN1186
The only other couple of points that I have: in relation to the contention that the new roster provides certainty, we would say it’s currently the case that the employees are already able to plan their – and they do plan their family life around the availability shifts because those availability shift rosters are made 12 months in advance currently, so it’s easy to swap, especially when they're in sync on a one to six that they do this, so it’s easier to actually swap now and they do have certainty currently.
PN1187
In relation to the past agreements, the reason that we refer to those is that it’s our contention that past actions do indicate a common understanding. That's the only point that we were trying to make in respect of that. I don’t really have anything further, your Honour.
PN1188
THE DEPUTY PRESIDENT: All right. Good. Thank you for that. I'll reserve my decision and get that out to the parties as soon as possible.
PN1189
MR NOBLE: Thank you, your Honour.
PN1190
THE DEPUTY PRESIDENT: Thank you.
<ADJOURNED INDEFINITELY [3.00PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
MATTHEW JAMES WESTWOOD THOMAS, SWORN PN661
EXAMINATION-IN-CHIEF BY MR MANOS PN665
EXHIBIT #SAPN JAMES WESTWOOD THOMAS PN673
CROSS-EXAMINATION BY MR NOBLE PN698
RE-EXAMINATION BY MR MANOS PN750
EXHIBIT #SAPN6 BUNDLE OF DOCUMENTS PN781
THE WITNESS WITHDREW PN792
MARK WILLIAM BROWNLEY, AFFIRMED PN793
EXAMINATION-IN-CHIEF BY MR MANOS PN793
EXHIBIT #SAPN7 STATEMENT OF MARK BROWNLEY PN807
EXHIBIT #SAPN8 CURRENT FATIGUE MANAGEMENT POLICY PN816
CROSS-EXAMINATION BY MR NOBLE PN818
RE-EXAMINATION BY MR MANOS PN882
FURTHER EXAMINATION-IN-CHIEF BY MR NOBLE PN890
THE WITNESS WITHDREW PN896
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