Lamb v Bunnings Group Limited [2013] FWC 201 (16 January 2013) Note: An appeal pursuant to s.604 (C2013/2985) was lodged against this decision - refer to Full Bench decision dated 14 May 2013 [ [2013] FWCFB 2698 ] for result of appeal. [2013] FWC 201 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.739 —Dispute resolution Jeffrey Lamb v Bunnings Group Limited (C2012/5230) COMMISSIONER ROBERTS SYDNEY, 16 JANUARY 2013 Application pursuant to s.739 - dispute resolution - roster change - family responsibilities - equitable treatment of employees. [1] This decision concerns an application made by Mr Lamb on 10 September 2012, pursuant to s.739 of the Fair Work Act 2009 (the Act) for Fair Work Australia (now the Fair Work Commission) to deal with a dispute between him and Bunnings Group Limited (Bunnings or the Company). The reference to the Commission arises from the dispute resolution procedure set out at clause 36 of the Bunnings Warehouse Agreement 2010 (the Agreement). Clause 36 of the Agreement sets out a number of steps to be followed when a dispute arises as to matters covered by the Agreement. It says: “ 36. DISPUTE RESOLUTION PROCEDURE 36.1 This procedure is an important method at Bunnings for addressing disputes, inclusive of a dispute relating to the National Employment Standards (with the exception of provisions referred to in sections 65(5) of the Fair Work Act ), in relation to a matter arising under this Agreement. It is to be administered and utilised in the spirit and purpose for which it is intended i.e. a fair, objective and prompt review of any dispute in relation to a matter arising under this Agreement. 36.2 In the event of a dispute in relation to a matter arising under this Agreement, in the first instance the parties will attempt to resolve the matter at the workplace by discussions between the employee concerned and the relevant supervisor and, if such discussions do not resolve the dispute, by discussions between the employee concerned and more senior levels of management as appropriate. This may, for example include a Complex Manager, an Area Manager or Bunnings Human Resources. 36.3 In the event of a dispute arising in relation to a matter under this Agreement, the following procedure must be followed: 36.3.1 The warehouse team member should discuss the problem first with their team leader or immediate supervisor to resolve the matter. (Time must be set aside and any facts fully investigated to ensure that the warehouse team member receives a specific response within a reasonable time). 36.3.2 If they cannot resolve the matter, the warehouse team member may raise it with the manager’s manager, or another warehouse team member identified as available to assist with resolving local difficulties, or both of them. 36.3.3 If the matter is not resolved, it should be considered by the relevant Employee Relations Manager within Bunnings. 36.4 At any stage of the dispute resolution process, a party to the dispute may appoint another person, organisation or association to accompany or represent them in relation to the dispute. Warehouse team members are entitled to approach the SDA at any stage for advice or assistance. 36.5 If a dispute in relation to a matter arising under the Agreement is unable to be resolved at the workplace, and all agreed steps for resolving it have been taken, the dispute may be referred to Fair Work Australia for resolution by mediation and/or conciliation and/or arbitration. If arbitration is necessary Fair Work Australia may exercise such procedural powers in relation to hearings, witnesses, evidence and submissions that are necessary to make the arbitration effective. For the purposes of this clause, arbitration includes any appeal. 36.6 Work to Continue While the procedure in 36.3 is being pursued, work must continue in line with the terms of the Agreement, without affecting the rights of either the warehouse team members or Bunnings adversely. 36.7 A decision of Fair Work Australia in arbitration will bind the parties, subject to either party exercising a right of appeal against the decision to a Full Bench.” [2] Unsuccessful conciliation was conducted before me on 19 September 2012 and 28 November 2012. Directions were then issued on 5 December 2012 and arbitration set down for 21 December 2012. [3] At the hearing, Mr Lamb was represented by Mr A Rogers of Counsel with R Tonkli of the Shop, Distributive and Allied Employees’ Association (the SDA). Bunnings was represented by Mr J Darams of Counsel with Mr A Goonrey of Lander & Rogers Lawyers. Background to, and terms of, the dispute and relief sought [4] In his form F10 Application for FWA to Deal with a Dispute in Accordance with a Dispute Settlement Procedure, Mr Lamb provided the following background to the dispute: “(a) The Applicant is a full-time employee of the Respondent engaged to work at the Respondent's Lismore store. (b) The Applicant has worked for the Respondent for a period of approximately 8 years. (c) The Respondent has provided the Applicant with a roster that requires him to work Tuesday to Saturday, commencing 10 September 2012. The Applicant is not rostered to work on Monday or Sunday. (d) The Applicant's current roster requires the Applicant to work Monday to Thursday and on Sundays. The Applicant is not rostered to work Friday or Saturday. The Applicant has worked on this roster for a period for approximately 3 years with minor adjustments within the Applicant's availability. (e) The Applicant has two daughters, aged three years and seven years. (f) The Applicant’s wife works for Woolworths Supermarkets and is regularly rostered to work Fridays and Saturday's. Prior to the Applicant's wife commencing at Woolworths the Applicant approached his complex Manager, Chris Randell and asked him if there would be any problems concerning a conflict of interest if his wife worked for Woolworths. Mr Randell informed the Applicant that it was not a conflict of interest. (g) The Applicant has family responsibilities / significant commitments in that he is responsible for the care of his children on Fridays and Saturdays. (h) The Applicant has offered to work on one in three Saturdays. At these times the Applicant's father in law would be responsible for the care of the Applicant's children. The Applicants father in law is not available to look after the Applicant's on other occasions. (i) The Applicant has no other genuine alternatives in relation to the care of his children. (j) The Respondent has failed to have proper regard for the family responsibilities of the Applicant and thereby failed to give proper consideration to the roster change provisions in the Agreement.” [5] Mr Lamb was scheduled to commence working a rotating roster on or about 11 September 2012. That roster would have involved him working Fridays and Saturdays in four week blocks. Mr Lamb has declined to work on Fridays and Saturdays as scheduled and is apparently currently working on three days per week and his non-attendance on scheduled Friday and Saturday shifts is being treated by the Company as leave without pay. [6] Mr Lamb’s application went on to specify the relief sought as being orders to the effect that: “(a) The current roster shall continue to apply until a settlement is reached or until FWA determines the matter. (b) Consistent with relief sought in paragraph (a) that the Applicant be compensated in accordance with the current roster. (c) The Respondent refrain from changing the Applicant’s roster to compel him to work on a Friday or on more than 1 in 3 Saturdays.” The relevant terms of the Agreement [7] Clause 10 of the Agreement (Ordinary Hours of Work) provides relevantly at subclauses 10.2, 10.3 and 10.4: “10.2 Ordinary hours of work may be rostered on any day at any time. The times during which a team member may expect to be regularly rostered to work ordinary hours shall be: 10.2.1 Monday - Sunday between 5.00 am and 11:00 pm. 10.2.2 During a period of warehouse store fit out prior to opening the ordinary hours shall be Monday to Friday 5:00 am to midnight. Team members who are required to work ordinary hours outside the above spread of hours shall be paid at the appropriate penalty rate ... 10.3 Warehouse team members shall be rostered to work ordinary hours such that: 10.3.1 the maximum number of rostered ordinary hours on any one day shall be 10.5. 10.3.2 the minimum number�of rostered ordinary hours per day shall be 6 for full time warehouse team members, and 3 hours for all other warehouse team members. However, by agreement with the team member concerned the minimum number of rostered ordinary hours for a full time warehouse team member may be less than 6 but not less than 4 hours per day. 10.3.3 a maximum of 46 hours in any one week except for part time team members whose agreed annual hours are less than 1040 hours per 52 weeks, in which case the maximum shall be 30 hours, or 46 hours by agreement. 10.3.4 a maximum of 6 consecutive rostered days. 10.3.5 a team member shall receive 2 consecutive days off in each fortnightly pay period unless otherwise agreed between Bunnings and the warehouse team member affected. 10.3.6 the hours of work on any day, exclusive of meal breaks, shall be continuous. 10.3.7 a team member may be rostered for a minimum of 1 hour for the purpose of attending store training. In these instances clause 10.3.2 shall not apply and these sessions shall not constitute an additional start for team members for the purposes of clause 10.3.4. but such hours shall come off the team members hours to be worked for the year and clause 10.3.5 shall still be applicable. If the store training is scheduled the day after a team member has worked 6 consecutive days, attendance will be voluntary. When rostering in accordance with this clause, 10.4.3 shall apply, with the company also having regard to excessive travel. 10.4 10.4.1 Rosters for ordinary hours of work shall be set for a two week period at least fourteen days in advance but may be varied with seven days’ notice or at any time by mutual agreement between Bunnings and the warehouse team member affected. 10.4.2 As far as possible, rosters will be set by mutual agreement between Bunnings and the warehouse team members. 10.4.3 In setting rosters Bunnings will have regard for the family responsibilities and other significant commitments of warehouse team members and access to safe transport home by warehouse team members as well as the operational requirements of the business and the need to be fair in its treatment of warehouse team members as a whole. 10.4.4 It is acknowledged that rosters are subject to change on an ongoing basis - however rosters, as far as is practicable should not be subject to frequent variation without good cause. Nothing in this clause precludes the business from being able to roster to meet operational requirements. Nothing in this clause is to be construed as meaning that rosters will be of a set and standard nature.” [8] Mr Lamb relied particularly on the provisions in subclauses 10.4.2 and 10.4.3. He also maintained that Bunnings has acted contrary to the provisions of subclause 36.6 (see paragraph 1 above). Legislative framework [9] Section 739 of the Act provides: “739 Disputes dealt with by FWA (1) This section applies if a term referred to in section 738 requires or allows FWA to deal with a dispute. (2) FWA must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76 (4), unless: (a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to FWA dealing with the matter; or (b) a determination under the Public Service Act 1999 authorises FWA to deal with the matter. Note: This does not prevent FWA from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)). (3) In dealing with a dispute, FWA must not exercise any powers limited by the term. (4) If, in accordance with the term, the parties have agreed that FWA may arbitrate (however described) the dispute, FWA may do so. Note: FWA may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). (5) Despite subsection (4), FWA must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties. (6) FWA may deal with a dispute only on application by a party to the dispute.” [10] Section 738 of the Act relevantly provides that s.739 is enlivened when: “(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes ...” [11] In the case before me, it is not contentious that the Commission has jurisdiction to hear this matter or that the preceding steps in clause 36 of the Agreement to a reference to the Commission have been followed. Evidence Mr J Lamb [12] Mr Lamb gave sworn evidence and submitted a witness statement. 1 [13] In his witness statement, Mr Lamb said he has worked for Bunnings for around eight years at its Warehouse in Lismore, New South Wales. His wife works for Woolworths Supermarket in Mullumbimby and is regularly rostered to work on Fridays and Saturdays. That work did not conflict with his roster in the past. Mr Lamb’s statement went on to set out his duties at Bunnings, where he mostly works in the Special Orders, Kitchens and Flooring (SKF) area. This department also deals with plumbing. [14] Mr Lamb went on to say that he possesses no particular skills which would set him apart from other team members who work or have worked in the area and his statement sets out a list of those persons. [15] Mr Lamb then said that his family responsibilities and commitments make him responsible for the care of his children on Fridays and Saturdays and that no other family member can assist him. He gave details of the health and work situations of several family members and I have paid regard to that material but will not set it out here for privacy reasons related to such persons who are not parties to this dispute. [16] Mr Lamb’s statement went on to say that on or about 19 June 2012 he attended a meeting with management representatives at which he was told that Bunnings wanted a person to work on Fridays and Saturdays. “During the meeting I informed Mr Eastment and Mr Hoare that I am responsible for the care of my children on Fridays and Saturdays and have no other genuine alternatives in relation to their care.” On 1 July 2012, Bunnings changed the rosters of three employees in the SKF area, including himself, without consultation. The new rotating roster requires him to work on Tuesday to Saturday inclusive for a four week period before reverting back to working Monday to Thursday and on Sundays for an eight week period. [17] Mr Lamb went on to say that in subsequent meetings with the Company, he offered a variety of compromise positions and thought the matter had been resolved by his agreement to work one in every three Saturdays and the offer of another employee to cover his Friday work and occasional Saturdays as well. However, around 28 August 2012 he was informed that an arrangement whereby he would work on every third Saturday “was not good enough and was not going to be acceptable.” He was informed that he would have to work the Tuesday to Saturday roster or accept part-time employment on Tuesday, Wednesday and Thursday of each week. The offer by another employee to cover Fridays and Saturdays was rejected by Bunnings. [18] “Should FWA determine that I am required to work the rotating roster I will be unable to fulfil the requirements of the roster because of my family responsibilities. I am concerned that this may then lead to the termination of my employment at Bunnings.” [19] Mr Lamb’s statement went on to deal further with possible childcare arrangements and I have paid regard to that material. That evidence is similar to that of Mrs Lamb below. [20] In cross-examination, Mr Lamb: ● Said that he was not certain that a meeting was held on 19 June 2012 or at the end of May 2012. (see paragraph 16 above). 2 Agreed that none of the affected employees wanted to change to a rotating roster. 3 Agreed that he told Bunnings that he was unable to work on Fridays and Saturdays as he has responsibility for the care of their children on those days because his wife was working. 4 Was asked: “Before you left the meeting Mr Hoare actually acknowledged that each of you, being yourself, Mr Stewart and Mr Ward had family reasons for not working the roster, do you remember that?” and replied: “Yes.” 5 Was asked: “So could I suggest to you that your real concern is the financial consequences if your wife isn't given any further work at Woollies, that's really what you have an issue here, correct?” and replied: “Yes.” 6 Did not agree that his family would be financially worse off overall if he worked for Bunnings for three days a week and his wife continued her current work arrangements with Woolworths. 7 [21] In re-examination, Mr Lamb was asked: “Mr Lamb, if you went part time on three days a week that would I assume leave you free - tell me if this is wrong - leave you free to pick up work on the other two days you are off from Bunnings, would that be correct?” and replied: “Yes.” 8 Mrs R Lamb [22] Mrs Lamb gave sworn evidence and submitted a witness statement. 9 [23] In her statement, Mrs Lamb (the wife of the applicant) said that she has been employed by Woolworths at Mullumbimby since July 2011 as a casual employee. At the time she commenced, her rostered hours were not in conflict with those of Mr Lamb and she has generally worked on each Friday and Saturday as well as on other days. [24] Mrs Lamb went on to say that when Mr Lamb’s roster was changed, she asked Woolworths if she could change her work hours to accommodate his work on Fridays and Saturdays but this was rejected by her employer. She made enquiries concerning childcare and was informed that such care would only be available on the basis that she pay for every Friday, not only those Fridays when her husband was required to work as part of the rotating roster. [25] Mrs Lamb’s statement went on to set out her family’s income and living expenses. I have paid regard to that material but it is not necessary to set it out in this decision. [26] In cross-examination, Mrs Lamb: ● Said that getting a babysitter on Fridays and Saturdays was “not an option”. 10 Was asked: “Just the family are the options?” and replied: “Our personal preference ruled out the other options.” 11 Was asked: “What you're saying is that your preference was it was either the family or you or your husband and nothing else?” and replied: “Yes.” 12 Said that she now has a permanent part-time role with Woolworths. 13 Said in response to a question from me, that her new permanent part-time contract with Woolworths involved working on Fridays and Saturdays “with the occasional Sunday nights”. 14 Was asked: “You signed that contract in the circumstances - because you were previously a casual employee?” and replied: “Yes.” 15 Was asked: “You signed that knowing that your husband's employer had been asking him to work a rotating roster?” and replied: “Yes.” 16 Agreed that if her husband went to three days a week with Bunnings and she continued working part-time for Woolworths, the family would be financially worse off. 17 Mr W Smith [27] Mr Smith gave sworn evidence and submitted a witness statement. 18 [28] Mr Smith’s statement said that he works part-time at Bunnings in Lismore and has done so for around ten years. He is a SDA Delegate and has provided representation to Mr Lamb in his roster dispute with the Company, including attending a number of meetings with him. Mr Smith’s evidence concerning such meetings was consistent with that of Mr Lamb. Mr Smith went on to say that: “In each discussion with Bunnings Lismore Management Mr Lamb has demonstrated his willingness to compromise and has offered solutions.” Mr Smith went on to say: “I am currently willing to work Fridays and Saturdays as a means of resolving the dispute.” [29] In cross-examination, Mr Smith agreed that he only became involved in Mr Lamb’s dispute with Bunnings on 16 July 2012. Mr B Lamb [30] Mr Lamb is the applicant’s father and submitted a witness statement. 19 He was not required for cross-examination. [31] Mr Lamb’s witness statement provided details of his carer responsibilities for another close relative and stated that he is unable to provide childcare for Mr and Mrs Lamb’s children except on a very casual basis because of his other care giver responsibilities and his age. Mr C Randell [32] Mr Randell gave sworn evidence and submitted a witness statement. 20 He also submitted a supplementary witness statement. 21 [33] In his primary witness statement, Mr Randell said that he has been employed by Bunnings for around seven years and is currently the Complex Manager at Lismore having previously been Operations Manager. Mr Hoare reports directly to him. [34] Mr Randell went on to say that Mr Lamb is “specifically trained in big ticket selling” as are three other team members. He went on to say: “SKF team members are more technically experienced in relation to SKF products because of their training and on their experience. SKF team members need to have specific product knowledge in order to achieve sales given the big ticket nature of many SKF products. Other Warehouse team members, whilst able to provide some assistance to customers in SKF, are not as knowledgeable or experienced to necessarily complete a big ticket sale or offer the customer the same experience as a SKF team member.” [35] Mr Randell said that Mr Lamb has completed some eleven specific training courses on SKF products and is regarded “as being an integral member of the SKF team”. In June 2012, Mr Hoare advised him that he was working on a new roster to meet SKF operational requirements and customers needs “on our three busiest day in SKF, being Thursday, Friday and Saturday”. Mr Hoare went on to tell him that SKF team members could not come to an agreement about the terms of a new roster. In early July 2012, Mr Hoare updated him about his meetings with SKF team members and told him that none of them wanted to work a new roster. Between July and August 2012 Mr Hoare informed him that a new rotating roster for SKF had commenced but that Mr Lamb still objected to it. Mr Randell’s statement went on to set out details of subsequent meetings and discussions about the new roster and various options for Mr Lamb to pursue. Mr Lamb was informed that he would be required to work the rotating roster, explore working at another Bunnings store or cut his hours to three days per week. On or about 28 November 2012, he sent a letter to Mr Lamb in the following terms: “Dear Jeff As you aware we have been discussing your concerns regarding your roster for a number of months. Whilst we have been patient during these discussions your refusal to compromise regarding working on Fridays and Saturdays is disappointing. We note that the two other Team Members your roster rotates with have both worked Fridays and Saturdays under the roster that has been posted and we now confirm it is your turn to work your part of the rotating roster. We confirm that you are required to work in accordance with your roster which does include Friday and Saturday. Yours faithfully Chris Randell Complex Manager Bunnings Warehouse Lismore” [36] Mr Randell’s statement also replied to parts of the witness statements of Mr J Lamb and Mr Smith. In relation to Mr Lamb’s statement, Mr Randell said that Mr Lamb never told him what shifts Mrs Lamb was working. In reply to Mr Smith, Mr Randell said that Mr Smith “does not have the knowledge or skills other SKF team members have”. [37] In his supplementary statement, Mr Randell provided a document setting out the average earnings of Mr Lamb for the period 11 December 2011 to 9 December 2012. [38] In cross examination, Mr Randell: ● Agreed that he put a proposal to Mr Lamb that it would be possible for him to work three days a week. 22 Said that in certain circumstances Mr Lamb could still be required to work on a Friday or Saturday. 23 Said that it remains the Company’s preference that Mr Lamb works in the SKF area “because he has all those skills and was a valued team member.” 24 Said that if Mr Lamb were to work three days a week, this “would then give the coordinator the ability to have flexibility to obviously work towards putting someone else in those areas for those two days.” 25 Said that the Lismore store experienced its highest traffic flow on Thursdays, Fridays and Saturdays and that those days made up over a third of sales. 26 Said that he did not believe that Mr Smith possessed the expertise to work in the SKF area. 27 Mr D Hoare [39] Mr Hoare gave sworn evidence and submitted a witness statement. 28 [40] In his witness statement, Mr Hoare said that he has been employed by Bunnings for some eight years and is currently the Operations Manager at the Lismore Warehouse, a position he has held for around two years. Mr Eastment reports directly to him. Mr Hoare’s statement went on to set out the role and operation of the SKF area and Mr Lamb’s particular role in that area. Mr Hoare went on to say that Mr Lamb has attended fourteen training courses relevant to SKF products since 2008 and is designated as a ‘Kitchen Expert’ in the warehouse. [41] Mr Hoare went on to say: “From a business perspective, no other Warehouse employee, other than those in the SKF team, can be rostered in Jeff’s place because: (a) they do not have Jeff’s or the other SKF team members’ knowledge or expertise in SKF products; or (b) they are fulfilling another business role with the Warehouse. In my view, Jeff’s training and ability in kitchens in SKF is not matched by any other team member in the warehouse. He is a valued team member because of his expertise and ability to deliver customer service. In my view, it would take approximately 12 months, at a minimum, to train an existing Warehouse team member in SKF products so that they are adequately prepared to do big ticket selling. In the case of a kitchen expert, similar to Jeff, it could take approximately six to 12 months minimum to get a team member up to speed.” [42] Mr Hoare’s statement went on to set out the Company’s reasoning behind the need for a new rotating roster for the SKF area and subsequent discussions with team members. That evidence was broadly in line with that of Mr Randell. Mr Hoare went on to reply to sections of Mr Lamb’s witness statement and I have paid regard to that material. [43] Mr Hoare said that the decision to implement a rotating roster, in particular as that decision related to shifts on Fridays and Saturdays, was made after careful consideration of the following factors: “(a) the needs of each SKF core team member. (b) the operational requirements of the SKF business, including the concerns that Richard [Green] expressed to me about SKF department coverage in late April/early May 2012; and (c) how overall the SKF core team could be treated equitably and fairly. I believe that I gave due consideration to each of these individual factors and gave them equal weight.” [44] Mr Hoare’s statement went on to say that Mr Lamb was scheduled to begin working the new roster involving Fridays and Saturdays on 11 September 2012 and that this implementation date gave him some two months to prepare. In reply to the witness statement of Mr Lamb, Mr Hoare denied that Mr Lamb had not been consulted about the development and implementation of the rotating roster. [45] In cross-examination, Mr Hoare said that he analysed “sales figures over a period of time and what percentage of those sales fell on which days.” 29 Mr N Eastment [46] Mr Eastment submitted a witness statement 30 but was not required for cross-examination. [47] Mr Eastment’s statement said that he has been employed by Bunnings for some seven years and is currently the Coordinator of the SKF section, having held that role for about eight months. He reports directly to Mr Hoare. The statement went on to set out details concerning the SKF area and its team members. [48] Mr Eastment went on to say: “Jeff has been employed by Bunnings for over eight years. Jeff is a very able team member. I regard him as being the best in the Warehouse in Kitchens given his knowledge and experience; and the presentation of his area in SKF is, in my view, excellent. I believe Jeff has developed unique product knowledge about SKF products, particularly Kitchens, Plumbing and Flooring. Bunnings has provided Jeff with the opportunity of training in SKF products and he has also, I believe, independently kept himself up to date on new products and ranges as they come into the Warehouse.” [49] The statement went on to provide background to the creation of the new rotating roster and said that it had become apparent that there was a higher volume of sales on Saturdays than on Sundays and this led to the need for further employee hours to be worked on Saturdays. He consulted with team members and discovered that they were not willing to change their rosters. [50] Mr Eastment’s statement went on to detail events which were also covered in the statements of Mr Randell and Mr Hoare. Specifically, Mr Eastment said that when the rotating roster was published and implemented, he did not recall Mr Lamb saying that he was not going to work the roster. Mr S Stewart [51] Mr Stewart gave sworn evidence and submitted a witness statement. 31 [52] It was Mr Stewart’s statement that he has been employed by Bunnings for around four years and is currently a Grade 4 Supervisor in the SKF area. He assists Mr Eastment in the day to day running of the area. Mr Stewart’s statement went on to set out details of the operations of the area and its team members. [53] In relation to the new rotating roster, Mr Stewart said that Mr Eastment had raised the issue of employee numbers on Fridays and Saturdays in late May or early June 2012. Mr Stewart said that he did not want to do those shifts for personal reasons, which I will not set out here. [54] Mr Stewart said that he recalled a meeting in Mr Randell’s office when a rotating roster was discussed. He recalled Mr Lamb saying that he was not available to work on Fridays and Saturdays. That meeting occurred at the end of May or early June 2012. Mr Stewart disputed Mr Lamb’s witness statement that team members were not consulted about the new roster. [55] Mr Stewart closed his witness statement by saying: “I am a member of the SDA. At no time has the SDA, an SDA delegate or a nominated person from the SDA approached me about the rotating roster and/or sought my views as to how it affects me personally or as a member of the base SKF team. I believe this may, in part, be because I supported Bunnings’ decision to implement the rotating roster and I believe it is equitable for all SKF team members, given each of our personal circumstances.” [56] In cross-examination, Mr Stewart was asked a question about his personal marital circumstances at the time the rotating roster was proposed. I have paid regard to his answer but will not set it out here for privacy reasons. Written submissions The Applicant [57] The applicant, per the SDA, filed a written outline of submissions prior to the hearing. 32 [58] The outline of submissions argued that Mr Lamb was entitled to an order from the Commission that the rotating roster be rescinded because it “conflicts with his genuine family responsibilities and other significant commitments”. It went on to say that Mr Lamb is further entitled to an order that Bunnings roster him in a way that enables him to fulfil his genuine family responsibilities and other significant commitments, while at the same time ensuring that the genuine operational requirements of the workplace are met.” [59] The outline of submissions went on to argue that the Commission has jurisdiction to deal with a dispute in relation to the application of subclause 10.4 of the Agreement (see paragraph 7 above). The submissions went on to argue that Mr Lamb’s current roster, which requires him to work Monday to Thursday and on Sundays, accommodated his childcare responsibilities on Fridays and Saturdays when his wife worked. The Lamb family depends on the income derived by Mrs Lamb who would not be able to continue her employment with Woolworths if she could not work on Fridays and Saturdays. [60] The submissions further argued that acceptable childcare options were not available for either of Mr and Mrs Lamb’s two children. [61] It was submitted that the words ‘will have regard for’ in subclause 10.4.3 of the Agreement is equivalent to the phrase ‘have regard to’. The applicant contended that this meant that each factor must be given due weight. [62] “The SDA submits that giving each factor its due weight is a process that can only be done by having regard to the specific circumstances of the matter. For example, where establishing a roster, the weight given concerning the family responsibilities for an employee who could readily make alternate arrangements (eg where the employee’s spouse had the option of changing their work arrangements to fulfil family responsibilities) differs from the weight that would need to be given in circumstances where an employee had no other available options to meet his family responsibilities. Accordingly, it is submitted that in setting rosters, each of the factors listed in clause 10.4.3 must be given due weight, in relation to the specific circumstances of the case. A decision to set a roster that does not give due weight to one or other of the factors, having regard to all of the circumstances, would be a failure to apply clause 10.4.3 of the Agreement.” [63] The submissions went on in some detail to analyse the provisions set out in subclause 10.4 of the Agreement. It was argued that Mr Lamb was “simply not available to work the rotating roster” rather than it being “a question of Mr Lamb’s preference or convenience to not work the roster”. [64] “By forcing Mr Lamb to work the proposed roster, Bunnings are placing Mr Lamb in a position of not being able to fulfil his roster. This may result in the eventual cessation of Mr Lamb’s employment. In circumstances where Bunnings have other options to fulfil their operational requirements, a proper regard to Mr Lamb’s family responsibilities should give rise to a decision that Mr Lamb should not be required to work the rotating roster.” [65] It was further argued that: “There is no evidence that the other two team members who have agreed to work the rotating roster have similar family responsibilities or are impacted by the roster in a manner similar to Mr Lamb.” [66] The submissions further argued that Bunnings does not have “an absolute prerogative to change an employee’s roster”. The Company must take into account all the circumstances surrounding an employee’s ability to work a roster. [67] The submissions went on to set out possible options that would be able to satisfy Bunnings’ requirements and also those of Mr Lamb. These can be shortly summarised as follows: (a) that Mr Smith be rostered on the rotating Fridays and Saturdays. (b) that Bunnings roster Mr Lamb to work on every Friday but not on Saturdays. (c) that Mr Lamb voluntarily reduce his hours to 23 per week, on the condition that he is not required to work on Fridays and Saturdays until his family circumstances allow him to do so. [68] The submissions made it clear that option (c) was the least preferred one. “A decision by [the Commission] to the effect that Bunnings withdraw the rotating roster and apply one of these options would resolve the dispute. Such a decision would also be in the public interest.” The Company [69] Bunnings also filed a written outline of submissions prior to the hearing. 33 The Company’s outline of submissions argued as a threshold point that the effect of the orders sought in Mr Lamb’s application would require the Commission to make a decision which is prohibited by s.739(5) of the Act, in that “Mr Lamb is seeking a decision which will guarantee him a roster which is of a set and standard nature”. “The orders sought will also preclude the Respondent from being able to roster to meet its operational requirements. This is inconsistent with clause 10.4.4 of the Agreement.” [70] The submissions went on to argue that the making of the orders sought by Mr Lamb “would result in an impermissible incursion into the Respondent’s prerogative to manage its business in circumstances where the Respondent’s decision is not unjust or unreasonable ...” [71] “If, which is denied, [the Commission] is of the view that the Respondent has failed to comply with the relevant provisions of the Agreement in determining the rosters, the Respondent submits that the extent of [the Commission]’s powers, in light of the terms of the Agreement, is to require the Respondent to reconsider Mr Lamb’s circumstances.” The submissions went on to argue that if the Commission were to find that Bunnings did not pay proper regard to Mr Lamb’s family responsibilities in setting the rotating roster then “the only order which is appropriate and/or permissible is one limited to requiring the Respondent to reconsider its decision.” The Commission’ role “is not to decide whether an employer in the Respondent’s position could roster Mr Lamb to work the proposed roster or what it would do if it was in the Respondent’s position ...” [72] “The Respondent submits that it has given the appropriate weight to the relevant matters in clause 10.4.3 in setting the rosters and there is therefore no basis for [the Commission] to accede to Mr Lamb’s application.” [73] “Mr Lamb has submitted several alternatives to being required to work the roster which has been set by the Respondent. They however all result in a roster whereby he is not required to work Fridays and Saturdays or that he be rostered to work every Friday, but not Saturdays. Whichever way one considers what is being sought by Mr Lamb, the result is that he seeks a roster that is of a set or standard nature. That is inconsistent with clause 10.4.3 of the Agreement.” [74] “When one considers [Mr Lamb’s] submissions and evidence as a whole ... the inescapable conclusion is that Mr Lamb’s position is that it is his family responsibilities which in the end should determine whether he is required to work the rotating roster. There is nothing in the Agreement which supports that position. To the contrary ... the provisions of the Agreement are against that proposition.” [75] The outline of submissions closed by saying: “The evidence of the Respondent establishes that it had regard to all of the relevant considerations. It was trying to be fair to all of the relevant members of the Team in setting the rosters to meet operational requirements. There is nothing unreasonable or unjust about such an approach.” Oral submissions Mr Rogers [76] In his oral submissions, Mr Rogers expanded on those contained in the written outline. He further submitted that subclause 10.4.2 of the Agreement “imposes a strict requirement upon each party to the agreement or at least each relevant party, that is the employee and the employer to set agreements by mutual agreement, set rosters by mutual agreement.” 34 He argued: “that if there is a rational and credible basis upon which the parties might reach agreement the parties should do so.” 35 The alternatives and objections raised by Mr Lamb meet that criterion. [77] Mr Rogers went on to argue that “operational requirements isn't just a one way street. It actually involves ... having regard to the interests of employees.” 36 In answering to a question from me, Mr Rogers said that it would be appropriate for me to put myself ‘in Bunnings’ shoes’ and decide for myself what a reasonable roster outcome would have been pursuant to subclause 10.4 of the Agreement. 37 [78] Mr Rogers stressed, that rather than being unwilling to work on Fridays and Saturdays, Mr Lamb is just not able to do so due to his family circumstances and responsibilities. The Company should have recognised and accommodated that inability. Mr Darams [79] In his oral submissions, Mr Darams expanded on those contained in the written outline. Mr Darams argued that the provisions of clause 4 (Objectives of this Agreement) of the Agreement were also relevant to my consideration. He said that clause 4 of the Agreement sets as an objective that the provisions of the Agreement as a whole are designed “to enable Bunnings to establish and maintain a vital level of customer service and facilities and overall customer service.” 38 He went on to say that the evidence of the Company witnesses supported Bunnings’ decision to implement a rotating roster to provide improved customer service. [80] Mr Darams went on to argue that management prerogative to roster in response to operational requirements was paramount. In any event, the rotating roster ensured that all team members “would be treated equally in the context of being asked to work on Fridays and Saturdays.” 39 [81] Mr Darams went on to say: “It seemed in my respectful submission to be that the real issue here wasn't family caring but it was to protect the role of Mrs Lamb at her employer. In one sense what Mr Lamb seeks here is to invert the role of another employer, his wife, at another employer or the responsibilities or the requirements of another employer instead of his particular role with Bunnings, with this employer. Now, there is no reason why or no need why this employer has to have any regard to the circumstances of another employer in that respect and no Tribunal ought ask any employer do that.” 40 [82] I have also paid regard to the case law cited by the parties. Conclusions and Determination [83] Firstly, I turn to a consideration of the terms of the Agreement, specifically clause 10 and subclause 36.6. Mr Lamb particularly relies on the provisions of subclauses 10.4.2, 10.4.3 and 36.6 of the Agreement. [84] Clause 10, as it relates to rosters and changes to rosters, is governed by certain principles, which can be summarised as follows: ● A team member may expect to be regularly rostered to work ordinary hours on Monday to Sunday. ● “Rosters ... shall be set for a two week period at least fourteen days in advance but may be varied with seven days’ notice or at any time by mutual agreement ...” ● Rosters will be set by mutual agreement “as far as possible”. ● The setting of rosters by the Company “will have regard for the family responsibilities and other significant commitments of warehouse team members ... as well as the operational requirements of the business and the need to be fair in its treatment of warehouse team members as a whole.” ● The parties to the Agreement acknowledge that rosters are subject to change on an ongoing basis but should not be subject to frequent variation without good cause. ● “Nothing in this clause is to be construed as meaning that rosters will be of a set and standard nature.” [85] The overall provisions of clause 10 of the Agreement are not merely hortatory but impose obligations on both Mr Lamb and Bunnings. [86] In all of the options provided by Mr Lamb, he seeks the imposition of a roster on the Company which would preclude Bunnings from ever requiring him to work on any Friday or a maximum of one in three Saturdays unless he decided at some future date that his family responsibilities would allow him to do so. The question before me is whether the provisions of the Agreement allow Mr Lamb to take this stand and whether Bunnings has applied the Agreement properly in setting a rotating roster that would compel Mr Lamb to work some Fridays and Saturdays, if he wishes to remain a full time employee. [87] The evidence in this case is important in gaining an understanding of whether Bunnings met its obligations pursuant to subclause 10.4 of the Agreement. In this regard, I have no hesitation in accepting the evidence of Mr Randell, Mr Hoare, Mr Eastment and Mr Stewart as being both factual and candid. [88] In fact, the cross-examination of Mr Randell and Mr Hoare was quite limited and in the case of Mr Eastment his evidence was not challenged at all. Mr Stewart’s evidence, as one of the three persons affected by the rotating roster, was also effectively unchallenged. [89] I note here that, in particular, I accept and am persuaded by, the evidence of the Company’s witnesses to the following effect: ● The Company has a genuine business requirement to increase staff numbers in the SKF area on Fridays and Saturdays based on customer traffic flow and sales. ● Mr Lamb is a highly skilled, effective and valued member of the SKF team. ● Mr Lamb was consulted well in advance of the rotating roster coming into effect. ● The Company took Mr Lamb’s personal circumstances into account when formulating a new roster and he and the other team members were treated equitably. ● Mr Smith does not possess the knowledge and skills to replace Mr Lamb. ● Despite initial resistance, the other two SKF team members have agreed to work the new rotating roster. The treatment of Mr Lamb has not been inequitable in that regard. ● The Company was open to suggestions from Mr Lamb as to alternative working arrangements either at the Lismore store or another Bunnings warehouse. ● The alternatives raised by Mr Lamb were either unavailable, unworkable or not in Bunnings’ commercial interest. ● Bunnings gave due consideration and equal weight to all factors before making a decision on the new roster. [90] Where the evidence of the applicant conflicts with that of Mr Randell, Mr Hoare and Mr Eastment, I prefer the evidence of the three company witnesses. This is particularly so in relation to the process of consultation before the Company adopted the rotating roster. I accept that Mr Lamb was truthful when setting out his family circumstances but his evidence does not persuade me that his situation creates a special circumstance which must be accommodated by Bunnings. Mr Lamb is totally unwilling to work on Fridays and/or Saturdays and has always been unwilling to countenance any roster that involved such work. [91] The evidence of Mrs Lamb I believe to have been truthful but her desire to work on Fridays and Saturdays at Woolworths cannot give rise to an obligation on Bunnings to arrange Mr Lamb’s hours to suit Mrs Lamb. On balance, I consider that it is Mrs Lamb’s desire to work on Fridays and Saturdays that lies at the core of this dispute. Her action in changing her employment status from casual to permanent part-time at Woolworths, including an obligation to work on Fridays and Saturdays, occurred while this dispute and Commission proceedings were ongoing. Mrs Lamb’s work schedule has formed both an irresistible force and immovable object in Mr Lamb’s dealings with Bunnings over a new roster. I make these observations for the sake of completeness but Mrs Lamb’s work at Woolworths has in itself had no determinative role in my decision making. [92] The reliance by Mr Rogers on Bunnings not objecting to Mrs Lamb working for Woolworths on the basis of there being no conflict of interest is misplaced in the context of this dispute. All that Bunnings’ concession on this question means is that it has no objection to Mr Lamb’s wife working for a rival retailer. It has no impact on the rostering question, it certainly does not constitute some form of tacit agreement that Mr Lamb will not be rostered for Fridays and Saturdays because of Mrs Lamb’s work. [93] The evidence of Mr Smith I believe to have been truthful as to matters within his knowledge and belief. However he only became involved in the rostering dispute on or after 16 July 2012, which means that he has little or no knowledge of earlier consultation with affected staff members. I acknowledge Mr Smith’s offer to take over Mr Lamb’s proposed Friday and Saturday shifts. However, as noted above, I accept the legitimacy of the Company’s view that he is not suitable to do so. That is a commercial decision lying totally within the purview of the Company. I also wish to note Mr Smith’s evidence that he is a SDA delegate in the context of his representation of Mr Lamb. In that context, the evidence of Mr Stewart that he has never been approached by the SDA to discuss the rotating roster is of note. [94] The evidence of Mr B Lamb, the applicant’s father, has not been useful to me in my determination of this matter but I accept it as having been truthful. [95] All in all, based on the evidence, materials and submissions before me, I have concluded and determine that Bunnings has properly applied the provisions of the Agreement as they relate to rostering when developing and implementing the rotating roster. Having made that Determination, there is no need for me to deal with the jurisdictional issue raised by Bunnings except to note that the orders sought by Mr Lamb would in all likelihood have been beyond the power of the Commission to issue in any event. [96] This leaves the question of what happens to Mr Lamb’s employment with Bunnings should he continue to refuse to work the rotating roster. In this regard, I note the fear expressed by Mr Lamb (see paragraphs 18 and 64 above) that his inability or unwillingness to work on Fridays in particular could lead to the termination or cessation of his employment if he is not exempted from the rotating roster. Here I note that Bunnings has made no threat to Mr Lamb’s continued employment and is willing to reduce his hours of work to part-time employment of three days per week and to replace him in the SKF area with another appropriately qualified person who is willing to work on Fridays and Saturdays. If Mr Lamb wishes to take up the part-time work option then that is a matter for him. I therefore further determine that Bunnings should allow Mr Lamb seven days from the date of this decision to decide whether he will comply with the provisions of the rotating roster or change his employment status to three days per week. If Mr Lamb adopts the part-time option, I expect that Bunnings would only ask him to work on a Friday or Saturday in extraordinary circumstances. [97] I must also comment on Mr Lamb’s reliance on subclause 36.6 of the Agreement. In my view, the actions of Bunnings have not offended the provisions of that subclause. Mr Lamb’s employment has not been threatened by his refusal to work the rotating roster and Bunnings has acted reasonably in treating his non-attendance on certain Fridays and Saturdays as being leave without pay rather than a failure to perform duty as directed. Bunnings’ action was proper in the context of the dispute being progressed pursuant to clause 36 of the Agreement. [98] Therefore the orders sought by Mr Lamb are refused and his application is dismissed. COMMISSIONER Appearances : A Rogers of Counsel with R Tonkli of the Shop, Distributive and Allied Employees’ Association. J Darams of Counsel with A Goonrey of Lander & Rogers Lawyers. Hearing details: 2012. Sydney: 21 December. 1 Exhibit SDA 2. 2 Transcript PNs131-139. 3 Transcript PN147. 4 Transcript PNs158-160. 5 Transcript PN167. 6 Transcript PN179. 7 Transcript PN197. 8 Transcript PN207. 9 Exhibit SDA 3. 10 Transcript PN283. 11 Transcript PN291. 12 Transcript PN293. 13 Transcript PN330. 14 Transcript PN334. 15 Transcript PN336. 16 Transcript PN337. 17 Transcript PNs347-348. 18 Exhibit SDA 4. 19 Exhibit SDA 5. 20 Exhibit Bunnings 2. 21 Exhibit Bunnings 3. 22 Transcript PN468. 23 Transcript PNs473-475. 24 Transcript PN484. 25 Transcript PN486. 26 Transcript PN506. 27 Transcript PNs515-519. 28 Exhibit Bunnings 4. 29 Transcript PN539. 30 Exhibit Bunnings 5. 31 Exhibit Bunnings 6. 32 Exhibit SDA 1. 33 Exhibit Bunnings 1. 34 Transcript PN611. 35 Transcript PN612. 36 Transcript PN626. 37 Transcript PN628. 38 Transcript PN647. 39 Transcript PN651. 40 Transcript PN653. Printed by authority of the Commonwealth Government Printer <Price code C, PR533044>