PR947070 PR947070 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.127 (2) application to stop or prevent industrial action Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (C2004/2837) Food, beverages and tobacco industry DEPUTY PRESIDENT HAMILTON MELBOURNE, 28 MAY 2004 Alleged industrial action by employer - direction to change shifts - loss of income for employees - definition of `industrial action' - was purpose of direction `industrial' or for commercial reasons - did it fall completely outside bargaining and disputation - claim for enterprise agreement - custom and practice to change shifts - is work in accordance with Award or custom and practice or normal work `industrial action' - Commission usage of `ban, limitation or restriction on work' - was Award procedure on hours of work or dispute settlement procedure followed - recommendation issued to resolve dispute DECISION Introduction [1] On 20 April 2004 the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (the AMWU) applied for a direction pursuant to s.127 of the Workplace Relations Act 1996 (the Act). It sought a direction in the following terms: That Masterfoods Australia New Zealand - Snackfood its Directors and Employees immediately desist from reducing the hours per shift in the "bite size" area and not engage in any further industrial action for a period of six months. [2] On 17 May 2004 the AMWU amended its proposed direction in recognition that the hours had been reduced, and proposed instead that Masterfoods Australia New Zealand - Snackfood (Masterfoods) be directed to reverse the change from a 4 shift operation to a 3 shift 1 . [3] There is no dispute that Production Operators at the Ballarat plant, which this matter concerns, work either a 3 shift or 4 shift system 2 : `(a) 3 shift operation : Associates work a non-continuous shift from Sunday night to Friday afternoon involving 1 week of day shift (7am-2pm), 1 week of night shift (10pm-7am) and 1 week of afternoon shift (2pm-10pm). Associates working on a 3 shift operation are paid a shift premium of 18%. (b) 4 shift operation : Associates work a continuous shift of 2 days of 12 hours followed by 2 nights of 12 hours with four days off. It is an 8 day continuous cycle roster. Associates working on a 4 shift operation are paid a shift premium of 50%.' 3 [4] Masterfoods gave notice to its `Bite Size Wrapping Room' employees at its Ballarat plant of a decision to change the shifts in that area from the 4 shift system to the 3 shift. The change took effect in accordance with the notice on 2 May 2004. [5] The Bite Size Wrapping Room includes about 40 individual production workers, out of a total production workforce of about 400, and the work done there consists of wrapping small (apparently `bite size') pieces of confectionary. Masterfoods makes Mars, Twix, Bounty, Skittles, M&Ms, Maltesers and similar products at its Ballarat plant. [6] Masterfoods said that it regularly made shift changes to meet changing production needs, that this change was made to meet the projected workload of the Bite Size Wrapping Room, that it had extensively consulted with employees, and that the change was pursuant to its rights under the Award. The AMWU and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU) said that Masterfoods had not provided information it asked for about the reasons for the change, the change was in breach of Award, and was in fact industrial action directed at the AMWU/ETU claim for an enterprise agreement, and that one result was that employees working on the new shift arrangements received about 25 per cent less pay. [7] It was common ground that the Confectioners Award 2002 4 applies to work at the plant, although the application of the Metal Engineering & Associated Industries Award 1998 in the Bite Size Wrapping Room was a matter of some argument. [8] No certified agreement applies to the site. A Notice of Initiation of a Bargaining Period was served on the Company by the AMWU on 30 March 2004 with the intention of negotiating a certified agreement covering the food division and metals division of the AMWU, and the ETU. [9] On 22 April 2004 this matter came before me. I sought to settle the matter by conciliation. The result of the conference was that it was agreed that Masterfoods would provide the AMWU with copies of a presentation it gave to employees concerning the change in shifts, and would meet to discuss the change with the AMWU. The matter would be relisted at the request of either party. [10] At the request of the AMWU the matter was relisted on 3 May 2004. Discussions between Masterfoods and the AMWU had been unsuccessful, and the AMWU pressed its application for a direction under s.127 . The change to shifts had been effected on 2 May. I attempted, again, to settle this matter by conciliation. No progress was made and the matter was heard. Final written submissions were provided by the AMWU, and Masterfoods on 20 May. The Act [11] Section 127 of the Act relevantly provides: (1) If it appears to the Commission that industrial action is happening, or is threatened, impending or probable, in relation to: (a) an industrial dispute; or (b) the negotiation or proposed negotiation of an agreement under Division 2 of Part VIB; or (c) work that is regulated by an award or a certified agreement; the Commission may, by order, give directions that the industrial action stop or not occur.' The Definition of Industrial Action [12] ` Industrial action' is defined in s.4(1) of the Act as: `industrial action (except in Part XA) means: (a) the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, the result of which is a restriction or limitation on, or a delay in, the performance of the work, where: (i) the terms and conditions of the work are prescribed, wholly or partly, by an award or an order of the Commission, by a certified agreement or AWA, by an award, determination or order made by another tribunal under a law of the Commonwealth or otherwise by or under a law of the Commonwealth; or (ii) the work is performed, or the practice is adopted, in connection with an industrial dispute; b) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, in accordance with the terms and conditions prescribed by an award or an order of the Commission, by a certified agreement or AWA, by an award, determination or order made by another tribunal under a law of the Commonwealth or otherwise by or under a law of the Commonwealth; (c) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, that is adopted in connection with an industrial dispute; or...' [13] There has been some consideration by the Commission of whether this definition has application to action taken by an employer, including action taken in the form of changing hours or shifts of employees. [14] In CEPU v CitiPower Limited 5 a Full Bench of the Commission said: `In relation to this ground, we would give an indication that we are of the view that on the proper reading of the definition in s.4 of the Act it is not possible to conclude that in any circumstances it could not apply to action taken by an employer. However, that issue needs to be determined in the context of the relevant facts.' [15] In St John of God Pathology v HSUA 6 a Full Bench of the Commission said: `[5] Whether the appellant's conduct in relation to the restructuring of its operations, either in whole or in part, constitutes industrial action for the purposes of the definition of the term in s.4 of the Act is a matter of some complexity. Whilst the issue of orders under s.127 to temporarily restrain the implementation of a corporate restructure is somewhat novel, it is by no means clear that the orders were made without jurisdiction. Nevertheless, and with respect to the Commissioners, the reasoning of Commissioner Holmes, which was adopted by Commissioner Blair, leaves scope for further argument. A careful examination of the facts, the relevant industrial instruments, and the prevailing law would be required if leave to appeal were granted. We do not think such an examination is justified in relation to orders which ceased to operate many weeks ago.' [16] The Citipower Case left open the possibility that the definition of industrial action in s.4(1) might apply to action taken by an employer, but said that ` that issue needs to be determined in the context of the relevant facts ', while in St John of God , again, without deciding the point, the Full Bench left open the possibility of s.127 orders restraining restructuring undertaken by an employer. It also said that the reasoning which was used by the Commission at first instance to issue such orders left scope for further argument, and that overall the matter was of `some complexity'. [17] The reasoning used at first instance in St John of God , was to examine the effects on work of the restructuring proposed by the employer. The Commission found that some employees' work would be altered through redundancy, additional workloads, a different range of duties and responsibilities, or who may be reduced in classification with pay reductions, and that these effects should have been processed through the consultation clause of the Agreement, were not, and involved a limitation or restriction on the performance of work or on the acceptance of or offering of work. The employer's action therefore fell within the definition of industrial action in s.4(1) 7 . [18] In the TXU Case, the Commission reviewed the authorities to date and said that for the definition of industrial action to apply the action must relate to the performance of work, the action must result in an `identifiable restriction on the performance of work' , the duties performed by the employee must be customary in the sense of having `something of a history' , and assessed objectively, the action must result in a change in custom 8 . This is a convenient summary of what is required to meet paragraph (a) of the definition, although the adoption of a practice in relation to work (the alternative requirement to custom) must also be added to the list of requirements. Custom is not a requirement of paragraphs (b) and (c) of the definition. The words `identifiable restriction on the performance of work' refer to `restriction or limitation on, or a delay in, the performance of work' in paragraph (a), while in paragraphs (b) and (c) a similar phrase ` ban, limitation or restriction on the performance of work' is used. [19] The recent decision in The Age Company Ltd v AMWU and Anor 9 is perhaps the most thorough Full Bench discussion yet of the application of the definition of `industrial action' in s.4(1) to actions taken by an employer, although the issue before the Bench in that matter was whether termination of employment fell within the definition of industrial action, not hours of work changes. The decision raised a number of issues not addressed in St John of God¸ TXU or other decisions. These include whether the action taken by the employer must be `industrial' in nature, or have an `industrial' purpose, and whether if it stands completely outside the area of disputation and bargaining it can be `industrial' in a statutory context concerned with industrial disputation and bargaining. If it has no industrial purpose or nature, and stands outside bargaining and disputation, it may fall outside the definition of industrial action, although the Bench's comments on these issues were made after the issue before the Bench was decided. [20] In The Age the Bench, firstly, discussed whether a termination of employment fell within the definition of `industrial action'. It said that the definition in paragraph (a) had two elements: either a performance of work in a manner different from that in which it is customarily performed or with the way in which work is performed, or the adoption of a practice in relation to work. The Commission said that neither element was present when an employer terminates the employment of an employee. [21] The Bench then discussed whether termination of employment fell within paragraphs (b) and (c) of the definition, both of which require that there be `a ban, limitation or restriction on the performance of work, or on acceptance of or offering of work' and similar requirements . The Commission discussed decisions on the meaning of these terms, and concluded, firstly, that it places an undue strain on language to construe the definition to mean that conduct which brings the employment relationship to an end to be industrial action or a ban, limitation etc on the performance of work. It is an unusual description and a technical one, not a natural one, to describe termination as a permanent ban or restriction on the performance of work. Secondly, if the legislature had intended that the definition include termination of employment it could have done so by express words. Termination is a concept dealt with in many parts of the Act and its omission here is significant. Thirdly, the Commission saw the operation of the definition as predicated on the existence of an employment relationship or relationships pursuant to which various obligations are owed by each party to the other (eg. the obligation to pay the employee provided the employee is ready, willing and available to work). [22] While it was not necessary to do so, the Bench also discussed a number of other arguments put in proceedings. The Age contended that the definition of industrial action was subject to the necessary implication that the action concerned is engaged in to support a demand, while the Commonwealth submitted that action must be industrial in character, and that action which is `driven by normal business considerations' cannot be industrial action 10 . [23] The Full Bench said that `Just as employer conduct is capable of different characterisations depending upon its context, so also is employees' conduct. An employee who does not attend work on account of illness may not be engaging in industrial action, while an employee who does not attend for work in support of a collective demand that the employer agree to alteration of the conditions of employment clearly is so engaged.' 11 [24] The Bench said: [45] In a statutory context which is concerned with industrial disputation and enterprise bargaining it might fairly easily be concluded that a definition of industrial action is intended to be confined to action which occurs in the course of an industrial dispute or bargaining in relation to a demand concerning the conditions to be afforded by an employer to its employees. If such were the case, however, as counsel for the unions pointed out, so-called political strikes may not be amenable to an order pursuant to s.127 - a conclusion at odds with a number of Commission decisions and with the decision of the Federal Court of Australia in Communications Electrical Energy Information Postal Plumbing and Allied Services Union of Australia and another v Commissioner Laing of the Australian Industrial Relations Commission and another. 31 `[46] It seems to us likely that the legislature did not intend to include conduct which stands completely outside the area of disputation and bargaining and that accordingly the definition should be read giving some weight to the word industrial. But precisely how far this qualification might extend is a question of degree . We do not think it is desirable that we go further than is necessary to decide this case. As is clear, we have not found it necessary to go beyond the words of the definition. [47] Before leaving this issue, we should comment on the contention advanced on behalf of the unions that among the purposes of s.127 is one of securing the observance of awards and agreements . We understood this submission to be made partly in response to the contention advanced by The Age that to come within the definition the conduct complained of must be engaged in to support a relevant demand. As just indicated, we have not found it necessary to rule on that contention. In the circumstances it is sufficient to say that we are unable to discern in the terms of s.127 any legislative intention that s.127 should be available to stop or prevent conduct which is not within the definition of industrial action. Indeed, as we noted earlier, no party submitted that industrial action should be given a meaning other than the one which appears in s.4(1) . For that reason the contention advanced by the unions is not to the point. The question still remains whether the definition in s.4(1) includes termination of employment.' [my underlining] [25] An examination of Commission decisions in relation to the application of s.127 to what are often referred to as ` political strikes' shows a common `industrial' element of the involvement of industrial associations, often with express political objectives in their registered rules, their history, and ordinary operations. It may also be that the `political' issue the strike is about may often have an `industrial' character or be perceived by the association concerned as having industrial relevance to its members. The possible exception discussed in The Age may not then be an exception to a requirement of an industrial purpose or link to bargaining and disputation. [26] In one recent decision a single member of the Federal Court went so far as to doubt whether industrial action as defined has any application to employers: The term "industrial action" is defined in s 4 of the Act. Save for par (f) that definition appears to describe actions by employees. Only by straining the language could one apply it to actions by employers. However par (f) clearly contemplates industrial action by an employer. This may be an artefact surviving from some earlier form of the definition. In any event, ss 170ML, 170MO and 170MP all contemplate "industrial action" by unions or employees and "lockouts" by employers. Pursuant to s 170MO, industrial action will only be protected if appropriate notice has been given by the relevant union or union member. A lockout will be protected under s 170MO if an employer has similarly given notice. 12 [27] Dowsett J went on to say that: " For the reasons previously given, I doubt whether action by an employer can be "industrial action" as defined in the Act. " 13 This appears to go further than previous reservations expressed about the application of s.127 to actions by an employer. The Evidence on the Change of Shifts on 2 May 2004 [28] The AMWU submits that Masterfoods is taking industrial action because it directed employees in the Bite Size Wrapping Room to change from 7 days of 12 hour shifts. It submits that employees have been working the 7 day 12 hour shifts since at least 2003, that the work was customarily performed in that manner since that time, and that Masterfoods is now directing the performance of work in a manner different from that it is customarily performed, within paragraph (a) of the definition of industrial action in s.4(1) 14 . In its written submission 15 the AMWU claims that the change of shift is industrial action because it is forcing employees to work a 3 shift operation without consent, and commenced on 2 May when the change of shift system occurred. It says that even if Masterfoods acted in accordance with the Award, which it does not concede, the action is industrial action: "So that what we are saying is that the company has set about to use this method of bringing their employees to heel. So through that we would say that it is industrial action whether it is in fact something that they could have legitimately done under the award anyway." 16 [29] The AMWU also submits that the change in shift did not have the commercial purpose claimed by Masterfoods, but was done to dissuade employees from continuing to pursue an enterprise agreement, because for example of the context of the change, which is that the change occurred during bargaining over an AMWU claim for an enterprise agreement, a notice of initiation of a bargaining period having been served on Masterfoods by the AMWU on 30 March 2004 17 . Prior to the notice being served the AMWU held meetings with members to endorse the log of claims 18 . Ms.Linda Pope, the AMWU Organiser, gave evidence that: `We got notified by our delegates that the company had made the announcement immediately after they had been in receipt of our initiation of bargaining period and it was the belief among the delegates that the reason they were doing that was industrial dispute.' 19 [30] The AMWU said that Masterfoods were wrong in claiming that there was no actual workforce opposition to the change of shifts. On 16 April 2004 Masterfoods wrote to the forty employees in the Bite Size Wrapping Room asking them to sign the letter and return it `as confirmation of your acceptance of this offer of employment' 20 . No employees had signed and returned the letter. The various shop stewards were present at the hearing, showing support, and more would have attended if permitted by Masterfoods. There was evidence from Mr.Everitt and others of employees expressing concern 21 . [31] The AMWU said that Masterfoods had falsely claimed commercial reasons for other management decisions which were in fact not based on commercial reasons 22 , but were actions taken by Masterfoods in response to the present industrial proceedings. Mr.Darren Everitt, an electrical operations technician with Masterfoods for over 16 years gave evidence that he was refused permission to leave early or take annual leave so that he could have a sleep before he attended a conference held before me. The reason given for refusal was `it was because of production reasons'. Mr.Everitt said that the manager, however, eventually said: `look, it is like this, Darren, if you think that you should be able to attend all these meetings and be relieved from your duties to attend these meetings, well maybe your role is not even required, as in my work role. So you considered that you had been threatened by your manager? ... Most definitely.' 23 [32] The AMWU considered that this was clear evidence that Masterfoods had used production requirements to `justify just about anything' , and presumably that I should doubt its claims on this issue as well . 24 [33] Ms.Saunders, Operations Personnel Manager for Masterfoods, however, gave evidence 25 that she had spoken to the shift manager concerned and that the allegations made by Mr.Everitt were not substantiated. There was however some discussion in cross examination as to whether she had spoken to the correct shift manager 26 . [34] Both Ms.Saunders and Mr.Jason Wilkins, Operations Manager for Masterfoods, gave evidence that the shift change made had nothing to do with the negotiation over an enterprise agreement, and was done for commercial reasons. Mr.Wilkins said, firstly, that changes from 4 shift to 3 shift and from 3 shift to 4 shifts regularly occurred at the plant, for example: in 2001 in the Moulding line due to an increase in demand for white chocolate as a result of a product relaunch; in 2002 from a 4 shift operation to a 3 shift operation on the Skittles line due to a reduction in export demand as a result of the new Skittles plant opening in Beijing, China; and in 2003 it was necessary to return to a 4 shift operation on the Skittles line due to an unexpected spike in demand from Thailand, Indonesia and Korea, combined with a launch of a new Skittles variant; in 2003 the Bite Size Wrapping Room changed from a 3 shift operation to a 4 shift due to anticipated demand, particularly for Maltesers 27 . [35] This evidence was consistent with that given by Ms.Pope, who also indicated in cross examination that to her knowledge shift rosters had been changed on a number of occasions in for example the Skittles, Twix, Maltesers and Bite Size Wrapping Room areas, to name a few 28 . Messrs.Jones and Everitt confirmed that evidence in cross examination 29 . [36] Secondly, Mr.Wilkins said that the change to shifts that took effect in the Bite Size Wrapping Room on 2 May was also required for production reasons, which were a continued reduction in demand and technological changes which increased capacity on the line 30 . [37] Thirdly, he said that there was a long process of consultation which took place before the change of shifts was made, and this process started before the initiation of claims from the AMWU on 30 March 2004. In early 2004 Masterfoods told its employees that shift patterns were being reviewed and that a return to 3 shift operations was being considered for the Bite Size Wrapping Room. A further review took place and employees were provided with forecast information demonstrating the spare capacity that would exist if the 4 shift operation continued 31 . Masterfoods then gave its employees one month's notice of the change of shift, and the change of shift occurred in accordance with the notice on 2 May 2004. Is Industrial Action Happening, Threatened, Impending or Probable on the Evidence? [38] Firstly, on balance I accept the evidence of witnesses for Masterfoods on the reasons for the shift change. That is not to say that the witnesses for the AMWU lacked credibility or were unimpressive. I thought that they conducted themselves in a difficult situation with considerable discipline and restraint, and endeavoured to be truthful with the Commission. However, it may be that the change was made at the same time that bargaining over a new enterprise agreement was occurring, and that some employees understandably had a suspicion that there was or might be a link to bargaining 32 , but they had little or no real basis for that suspicion, understandable as their suspicion was in a difficult industrial conflict. Overall I prefer, on balance, the evidence given by Mr.Wilkins and Ms.Saunders on this issue, which I had the opportunity to observe, which was subjected to extensive cross examination, and which appeared more soundly based. I prefer this evidence even if I take an approach of heightened care given the context. In my view the action of Masterfoods to direct a change of shifts in the Bite Size Wrapping Room falls outside disputation and bargaining, and was for commercial reasons. The evidence does not provide a basis for concluding that the action in changing shifts was `industrial' on the ordinary meaning of that word. I might add that the legitimate commercial purpose is also relevant to the issue of whether a direction should be issued under s.127 as a matter of discretion. [39] Secondly, the evidence of Messrs.Wilkins, Everitt, Jones and Ms.Saunders and Pope suggests that it was the practice at the Ballarat site for Masterfoods to make changes from 4 shift patterns to 3 shift and vice versa having regard to its assessment of production needs in different production areas, and there is no suggestion until recently that this practice was other than acquiesced in 33 . There must then be a question as to whether the change that occurred on 2 May 2004 resulted in a performance of work in a manner different from that in which it is customarily performed or with the way in which work is performed, or the adoption of a practice in relation to work. It appears to be none of those things and therefore falls outside paragraph (a) of the definition of industrial action. A 4 shift pattern of work was as customary as a 3 shift pattern at the plant, and changing between them regularly occurred. It was the manner in which work was performed there, and was the work practice there. It seems less accurate to say that custom and practice regularly changed in the different areas than to say that it was the custom or practice at the plant to work in one of two shift systems, the 3 shift and the 4 shift, which were altered by the employer from time to time 34 . [40] Thirdly, on the evidence before me the change from 4 shifts to 3 was not the introduction of a restriction, limitation or delay in the performance of work, or a ban, limitation or restriction, but more a direction as to the manner in which normal full-time work be performed. The roster change led to lesser normal hours, but absent perhaps some form of industrial purpose, that is not the sort of ban, limitation or restriction that is required by (a), (b) and (c) of the definition of industrial action. [41] Fourthly, the words `ban, limitation or restriction' have a long history. Usage of the words 35 include statements and directions that all bans be lifted and that work continue as normal 36 , bans clauses in Awards that require that no bans, limitations and restrictions occur and that normal work continue in accordance with the Award 37 , requirements in Award dispute settlement procedures that normal work continue while discussions are taking place in accordance with the procedure 38 , and for example `work to rule' which again suggests some form of departure from what is normal, customary work, to impose a limit on work. Usage provides some support for the view that the change of shift in this matter, which is on the evidence normal, usual or customary work, is not the imposition of a ban or limitation. [42] Finally, the Bench commented in The Age that it was ` unable to discern in the terms of s.127 any legislative intention that s.127 should be available to stop or prevent conduct which is not within the definition of industrial action' , and therefore the union argument that among the purposes of s.127 is one of securing the observance of awards and agreements is `not to the point' 39 . However, it was well accepted that bans clauses were included in Awards as a matter of jurisdiction as reasonably necessary for the protection of the Award, and therefore as incidental to the industrial dispute 40 , and may have had broader purposes. [43] The AMWU submitted that Masterfoods had breached the Award hours and dispute resolution procedure, and that these breaches went to the question of whether industrial action had occurred, and made the industrial action illegitimate 41 . This requires me to examine the issue of alleged Award breaches. Interpretation of the Award [44] In City of Wannaroo v Holmes 42 , French J said: `The interpretation of an award begins with a consideration of the natural and ordinary meaning of its words: Re Clothing Trades Award (1950) 68 CAR 597 (Aust Indus Ct, Full Crt). The words are to be read as a whole and in context: Australian Timber Workers Union v W Angliss & Co Pty Ltd (1924) 19 CAR 172. Ambiguity if any, may be resolved by a consideration, inter alia, of the history of the subject matter of the award: Picard v John Heine & Son Ltd (1924) 35 CLR 1. Resort to such matters as prefatory statements and negotiations is of dubious assistance if admissible at all: Seymour v Stawell Timber Industries Pty Ltd (1985) 13 IR 289 at 290; 9 FCR 241 at 244 (Northrop J) (13 IR at 299; 9 FCR at 254) (Keely J) cf 13 IR at 309; 9 FCR at 265 (Gray J). The logs of claim and arbitrator's reasons for decision may be referred to to determine the ambit of the dispute which led to the making of the award so that where there are two possible interpretations, one within the ambit and one without, the former may be preferred. Evidence of the conduct of the parties subsequent to the making of the award however, cannot be relied upon to construe it: Seamen's Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444, 446, disapproving Merchant Seamen's Guild of Australia v Sydney Steam Collier Owners and Coal Stevedores Association (1958) 1 FLR 248. That is not to say the words must be interpreted in a vacuum divorced from industry realities. As Street J said in GEO A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503: "... it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result ... from an agreement between the parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award." - See also Re Crown Employees (Overtime) Award [1969] AR(NSW) 60 at 63; Re Hospital Employees Administrative and Clerical (State) Award (1982) 2 IR 123. It is of course no part of the court's task to assign a meaning in order that the award may provide what the court thinks is appropriate - Australian Workers Union v Graziers Association (NSW) (1939) 40 CAR 494. Indeed it has been said that a tribunal interpreting an award must attribute to the words used their true meaning even if satisfied that so construed they would not carry out the intention of the award making authority - Re Health Administration Corporation; Re Public Hospital Nurses (State) Award (1985) 12 IR 122; Rogers Meant Co Pty Ltd v Howarth [1960] AR(NSW) 291; Re Government Railways and Tramways (Engineers etc) Award [1928] AR 53 at 58 (Cantour J). Award Provisions on Change of Shift [45] The AMWU submits that in changing from a 4 shift to 3 shift arrangement Masterfoods failed to agree regarding preparation of rosters with `the majority of employees' pursuant to clause 3 of Appendix B to the Award. It said that while Masterfoods had the right to change `an employee' from day work or shift work to seven days continuous shift work or vice versa on one week's notice, pursuant to clause 4 of the Award, that right only applied to changing an individual employee, not a group of employees. [46] Masterfoods said that it was not required to obtain majority employee agreement pursuant to clause 3 of Appendix B, because that clause related to agreement on rosters , and what Masterfoods was doing was directing employees pursuant to clause 4 to change from seven day continuous shift work to shift work pursuant to clause 4. It said that the singular in that clause included the plural. [47] Appendix B was included in the Award by consent on 31 May 1989 43 . [48] Seven day continuous shift work is defined in clause 2 of Appendix B, a definition which includes the 4 shift system which ended on 2 May. The new 3 shift roster is shift work, and is not seven day continuous shift work because it only operates from Sunday to Friday, and does not operate on seven days. There is nothing to prevent Masterfoods from making a series of individual transfers pursuant to clause 4, and that is what happened on the evidence before me. On 16 April 2004 Mr.Jason Wilkins sent a letter to each individual employee to change 44 confirming a change which had been advised in April 2004 45 . [49] Clause 3 of Appendix B deals with the working of seven day continuous shift work. The third sentence of that clause requires the preparing of rosters and starting and finishing times to be agreed with the majority of employees. The sentence must, however, be read in context, and the context is that it is the third sentence in clause 3, the first two sentences of which relate to seven day continuous shift work. It is the roster provision for seven day continuous shift work. It would strain language to treat the sentence as a roster requirement for other types of workers, given the context. [50] It would be particularly strange given that clause 4, which deals with transfer from day work or shift work to seven days continuous shift work or vice versa, has a second sentence which also deals with rosters and is in conflict with the provision for rosters in clause 3. The roster sentence in clause 4 provides: `The employer shall give one weeks notice where an employee is to be transferred from day work or shift work to seven days continuous shift work or vice versa. In such case the employer shall advise the employee of the roster to be worked at least seven days prior to the commencement of that roster .' [51] The word `In such case' refers to a change from seven day continuous shift work to shift work, which is the change which occurred on 2 May 2004. There is no reference to agreement, simply to seven days advice, or notice, of the new roster. [52] I am unable to find any breach by Masterfoods of Appendix B. Nor, given the specific nature of the provisions of Appendix B, is there any scope left for other provisions of the Award to supplement this particular procedure. The compliance by Masterfoods with Appendix B gives weight to an argument that industrial action was not taken, or if it was taken, that compliance persuades me that as a matter of discretion no s.127 order should be made in the circumstances. [53] I might add that the s.127 direction sought by the AMWU would reverse the direction made by Masterfoods which it is specifically entitled to make pursuant to the procedure in Appendix B. I doubt that such a requirement can be included in a direction made under s.127 , any more than it can be included in a direction under s.111 (see Telstra below), although I have not had the benefit of submissions on the issue. [54] On the evidence before me employees are bound by the Award, given the nature of their duties, and I do not believe that any other Award is applicable to their work. Whilst it was submitted by the AMWU and CEPU that in certain cases the Metals Award applied, I accept the evidence of Ms.Saunders, which suggests otherwise 46 . Dispute Settlement Procedure [55] The AMWU submitted that Masterfoods had breached its obligation under the dispute settlement procedure in clause 6 of the Award. It said that this procedure was invoked by a letter sent by the AMWU to Masterfoods on 8 April 2004 47 in which the AMWU said: `Due to the severe financial impact this move would have on our Members and the fact that no agreement has been reached to do this, we hereby notify you that we are in dispute. We ask Masterfoods to have discussions with us on this issue, before this matter escalates. We also ask that the pre-dispute status quo remain until the issue is reached.' [56] It said that clause 6.4 of the disputes procedure allowed earlier stages of the procedure, which involve workplace discussions between the employee concerned and management, to be by-passed, given `the nature of the issue' , `considerations of urgency' , and `the number of employees concerned'. This was such a case as it involved the entire Bite Size Wrapping Room workforce, and was an imminent change which required urgent consideration 48 . [57] Masterfoods submitted that the disputes procedure was not invoked by the union, that the procedure contemplates the opportunity for the parties to resolve the dispute at as low a level as could possibly be resolved, that the AMWU had not `produced any evidence from an individual affected by the Bite Size Wrapping Room changes as part of its application' , that the notification under the dispute settlement procedure was a nullity because no affected individual was produced, and that if the union was following the award procedure it would have notified the Commission under s.99 not under s.127 49 . It also raised questions about the nature of a resolution which could emerge from such a procedure given the specific nature of the employer ability to change shifts. [58] I accept that the AMWU sought in its 8 April 2004 letter to notify a dispute pursuant to clause 6 of the Award, and that it was not invoking for example the internal company dispute procedure. That procedure can only be invoked by an individual employee it appears from its text and the way the company interpreted it 50 , and nor was the AMWU particularly aware of that procedure until Masterfoods provided it to the AMWU on 29 April, after the 8 April letter was sent. It seems that there was a dispute between Masterfoods and the AMWU over which procedure was to be used 51 . The AMWU was either simply notifying Masterfoods in general of a dispute or notifying under clause 6, which may be the same thing. On balance I accept that the AMWU notified a dispute pursuant to clause 6, asking for the status quo provision in that dispute settlement procedure to be observed. [59] Masterfoods refused to observe that status quo provision because of the business need for the shift change and because of the extensive consultation with employees that it said had occurred 52 . [60] While I think that the dispute settlement procedure was sought to be used, it may be that the status quo provision was not breached. As a Full Bench of the Commission decided in Telstra Corporation Limited v. CEPU 53 , an interim order restraining termination would be inconsistent with a clause in the Agreement considered in that case which had a process for redundancy which culminates potentially in termination, provided that the process was followed: `Of more relevance, however, is cl.17.3. That clause deals with disputes generally. It provides that while any dispute is being resolved any process shall continue without interruption. Since, as we have found, there was a dispute about the application of the Agreement which was being resolved, Telstra was entitled by cl.17.3 to continue with the process provided for in the Agreement. That process culminates potentially in termination of employment. An order enjoining Telstra from terminating the employment of the persons concerned would be inconsistent with the Agreement if in fact Telstra was complying with the process . With respect, for that reason, we disagree with the Vice President's finding that the Commission had an unqualified power to make an interim order restraining the terminations. In the circumstances there was no power to issue such an order in this case. This is not to say that the Commission would be powerless should it subsequently find that retrenchments were unjustified under the Agreement, but we do not need to examine that question.' [my underlining] [61] The status quo provision in clause 17.3 was in the following terms: `While any dispute is in the process of being resolved, work will continue without interruption in any manner whatsoever and any process under this Agreement shall continue without interruption.' [62] The status quo provision in clause 6 is in different terms, in particular it does not provide for any process under the Award to continue without interruption: `Whilst the procedures of negotiation and conciliation are being followed, other than in relation to a dismissal, the status quo pertaining prior to the act or acts which led to the dispute shall be strictly maintained.' [clause 6.9] [63] In my view the preferable view is probably that the employer is able to follow the specific procedure in Appendix B notwithstanding the general obligation in clause 6.9 to maintain the status quo. It is unlikely to be the case that a notification under clause 6 freezes for a possibly indefinite duration the various procedural rights that employers have under the Award. That would render the various Award rights basically ineffective. The employer might also be able to similarly freeze the exercise of any employee or union rights under the Award. The alternative result, that hours be changed on seven days notice, is by no means unusual in Awards 54 . [64] Nor is the dispute settlement procedure directed at disputes over Awards exclusively, which might give greater force to the AMWU argument. It describes itself as a `procedure for the avoidance of industrial disputes' 55 which may or may not be about matters in the Award. The status quo provision continues to have operation for non-award disputes and possibly for some award disputes of a different nature to that of the specific procedure in Appendix B. However, I do not accept that a notification by the AMWU which does not specify by name an individual aggrieved is a nullity, nor do I accept the arguments of Masterfoods on clause 6.4. I think that those arguments unduly restrict the scope of clause 6.4, which is designed to allow procedures to change to deal with certain disputes of a collective nature. If an issue is common to a group of employees, then common as an alternative to a series of identical and repetitive individual discussions may be appropriate. To take the alternative interpretation seems to leave clause 6.4 with almost no work to do at all, and is inconsistent with the ordinary meaning of the language. [65] Even if I am wrong about the status quo issue, the actions taken by Masterfoods do not persuade me that the change in shift was industrial action or as a matter of discretion that a s.127 order should be made. However, I consider that some action should be taken in the form of a recommendation. Conclusion and Recommendation [66] The change of shifts that occurred on 2 May 2004 does not, in my view, fall within the definition of industrial action. This is a decision on the evidence before me, and is not for example a decision that an employer direction to change hours could never fall within that definition. [67] However, I think it is appropriate that I act to promote compliance with the award dispute settlement clause. It is also, I think, desirable that I again address the substance of the matter before me, which is a dispute over a change of shifts, in an endeavour to bring the parties into agreement or some degree of agreement 56 . Such recommendations are commonly made pursuant to s.127 proceedings, although I have found that jurisdictional requirements for such an action are not met. In any event it is agreed between the parties that there is a specific industrial dispute or disputes in existence covering the work in question, the AMWU have notified a dispute pursuant to the dispute settlement procedure, and it is likely that a new dispute is in existence arising from the dispute over change of hours 57 . [68] The AMWU is correct to say that similar issues have been negotiated and settled in another company 58 , although the result reached in that matter met a different and specific bargaining context. However in all honesty I must record my view that a settlement should be achievable if a realistic attitude is taken by both sides, noting that it is understandable that some or more employees be concerned by a large drop in income, and also understandable that Masterfoods decides to change production hours to fit anticipated demand. Masterfoods may be entitled to do what it has done under the Award, but the Award is a safety net, and it is not uncommon for employers from time to time to choose to do more than the Award requires as a matter of good industrial practice. Masterfoods already has beneficial employment practices which include a deliberate policy of paying above the Award and in fact well above community standards. Masterfoods has already applied this approach to the change of shifts by establishing an income maintenance scheme, which has however not been accepted as sufficient by the AMWU. In many ways the dispute between Masterfoods and the AMWU/ETU seems to be about whether or not Masterfoods is acting in conformity with its well established employment practices. [69] I recommend : 1. That Masterfoods accept the bona fides of the AMWU and ETU in representing their members, including individual members who wish to remain anonymous. 2. That Masterfoods and the AMWU/ETU prepare a written document setting out areas of agreement and disagreement over the following issues, to the extent that the AMWU/ETU and their members still consider them relevant. The first meeting between Masterfoods and the AMWU/ETU should take place within two weeks of this decision. The issues to be dealt with are: the change in income for employees, noting that Masterfoods has already established an income maintenance scheme; the effect of the changes in shifts on long service leave, annual leave, and superannuation contributions. the effect of the change of shifts on the family circumstances of individual Associates; the health effects, if any, on individual Associates of the new shift arrangements; the working of overtime in future, including expectations; the effect of the changes in shifts on any job-sharing Associates; any other relevant issues raised by Masterfoods or AMWU/ETU. 3. That Masterfoods and the AMWU/ETU exchange within seven days commitments in writing to following the Award dispute settlement procedure if a dispute pursuant to that procedure is notified in future, and make those commitments available on relevant notice boards or similar areas for giving notice of management decisions. [70] A conference and if necessary hearing before me will be held to facilitate implementation of my recommendation if either side requests it. BY THE COMMISSION: DEPUTY PRESIDENT Appearances: Mr T Hale, Ms L Pope and Mr V Jose from the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Mr P Coffey from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Electrical Division) Mr J Hor and Ms L Green from Harmers Workplace Lawyers on behalf of Masterfoods Australia New Zealand - Snackfood Hearing details: 2004 Melbourne May 3, 4, 6, 10 and 11. Appendix 1 Appendix B - Mars Confectionery of Australia - Continuous Shift Work, Confectioners Award 2002 (AW818086) APPENDIX B - MARS CONFECTIONERY OF AUSTRALIA - CONTINUOUS SHIFT WORK 1. Notwithstanding the provisions of clauses 19 - Hours of work and 24 - Shift work of this award this Appendix shall prescribe the terms and conditions under which seven day continuous shift work can operate at Mars Confectionery of Australia at Ballarat. Where anything in this Appendix is inconsistent with any other provisions in this Award, the terms of this Appendix shall apply. 2. Seven day continuous shift work means work carried out with consecutive shifts of employees throughout the 24 hours of each of the seven days of the week without interruption except during breakdowns, plant shut downs or due to unavoidable causes beyond the control of the employer. 3. Employees may work seven day continuous shift work provided that the ordinary hours of shift workers shall average no more than 40 hours per week over a fixed period agreed between the parties. Such shift workers may work a shift that consists of a maximum of twelve ordinary hours in accordance with an agreed roster. The preparing of rosters and determining of the time of commencing and finishing shifts and any variations thereto shall be agreed between the employer and the majority of employees concerned represented by the union. 4. The employer shall give one weeks notice where an employee is to be transferred from day work or shift work to seven days continuous shift work or vice versa. In such case the employer shall advise the employee of the roster to be worked at least seven days prior to the commencement of that roster. 5. Leave is reserved to the parties to discuss the following matters in the review of continuous shift work: . Earning protection on change of shift roster; . Overtime limitations; . Child care. 59 Appendix 2 Clause 6 Confectioners Award 2002 (AW818086) 6. DISPUTE SETTLEMENT PROCEDURE Subject to the provisions of the Workplace Relations Act 1996, as amended: 6.1 A procedure for the avoidance of industrial disputes shall apply in factories or enterprises covered by this award. 6.2 Four stages of discussion shall apply. These are: 6.2.1 Discussions between the employee concerned and at his or her request the appropriate union shop steward or delegate or other employee representative, and the immediate supervisor; 6.2.2 Discussions involving the employee, the appointed employee representative and more senior management; 6.2.3 Discussions involving any or all of the employee, the shop steward, other employee representative, senior management and representatives of the State Branch of the union; 6.2.4 Discussions involving the employee, the shop steward, senior management, senior union officials and representatives of the appropriate employer organisation. 6.3 The shop steward or delegate shall be allowed at a place designated by the employer, a reasonable period of time during working hours to interview the duly accredited union officials of the union to which they belong. 6.4 The nature of the issue involved, considerations of urgency and the number of employees concerned may make it appropriate for earlier stages of the process to be by-passed. 6.5 Throughout all stages of the procedure relevant facts shall be clearly identified and recorded. 6.6 Sensible time limits shall be allowed for the completion of various stages of the discussion. Earlier stages of the discussion process may require less time to be finalised than later stages. 6.7 If the matter remains unresolved it shall be submitted to the Australian Industrial Relations Commission, whose decision, subject to the parties' rights of appeal, shall be accepted. 6.8 In order to allow for the peaceful resolution of grievances, the parties shall be committed to avoid stoppages of work, lockouts or any other bans or limitations on the performance of work while the procedures of negotiation and conciliation are being followed. 6.9 Whilst the procedures of negotiation and conciliation are being followed, other than in relation to a dismissal, the status quo pertaining prior to the act or acts which led to the dispute shall be strictly maintained. 6.10 Nothing in this clause shall operate to the prejudice of an employee's health and safety. 6.11 Nothing in this clause shall operate to the prejudice of an employee's right to discuss any matter with the union shop steward or delegate or appointed employee representative without representatives of the employer being present. 6.12 Notice Board The employer shall supply and erect a notice board of reasonable dimensions in a prominent position in the enterprise, or each part of an enterprise, to facilitate communication between employees and/or their union representatives. 6.13 Award To Be Posted The employer shall secure a copy of the award and each variation, as soon as practicable after coming into operation, and a copy of the said award and every variation shall be posted by the employer in a prominent place in the factory or workshop. 60 Appendix 3 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Draft Order received 17 May 2004 AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.127 (2) application to stop or prevent industrial action Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Masterfoods Australia New Zealand - Snackfood Matter No C2004/2837 Confectionery Employees Food Industry DEPUTY PRESIDENT HAMILTON MELBOURNE, MAY 2004 Application to stop or prevent industrial action. DRAFT ORDER 1. Pursuant to s.127 of the Workplace Relations Act 1996 (the Act) the Commission orders as follows: 1. This order shall be known as the Masterfoods Australia New Zealand - Snackfood Ballarat Factory Industrial Action Order. 2. This order shall be binding on the officers servants and agents of Effem Foods Australia trading as Masterfoods Australia New Zealand - Snackfood. 3. The officers servants and agents must cease and refrain from taking unlawful industrial action and reverse all changes made that have not been made in compliance with the provisions of the Confectioners Award 2002. 4. Specifically this means that the officers servants and agents shall reverse the changes in shift implemented in the bite size wrapping area in the factory at Ballarat on or around 2 May 2004 to reinstate the pre dispute status quo and not make further changes to any shifts without reaching agreement with the majority of employees effected. 5. This order shall come into effect from .......... and remain in force for a period of 6 months. BY THE COMMISSION: DEPUTY PRESIDENT HAMILTON Printed by authority of the Commonwealth Government Printer <Price code F> 1 A copy of the amended direction is contained in Appendix 3 of this decision. 2 Exhibit H5, Statement of Katrina Saunders, Operations Personnel Manager for Masterfoods, paragraph ... 3 Masterfoods refers to its employees as `Associates.' 4 AW818086 5 P4460, Polites SDP, Acton DP and Frawley C, 26 August 1997 6 S8900, Guidice J, Polites SDP and Whelan C, 8 August 2000 7 Print S3156, Holmes C, paragraphs 29-35 8 CEPU v. TXU Pty Ltd , PR907326, Lacy SDP, 3 August 2001 at paragraph 29 9 PR946290, Giudice J, Harrison SDP and Simmonds C, 11 May 2004 10 The Age , paragraph 39 11 The Age , paragraph 44 12 Construction, Forestry, Mining and Energy Union v Anglo Coal (Moranbah) North Management) Pty Ltd [2004] FCA 604, 13 May 2004 at para. 4 13 Construction, Forestry, Mining and Energy Union v Anglo Coal (Moranbah) North Management) Pty Ltd [2004] FCA 604, 13 May 2004 at para. 22 14 Transcript PN2007-2021 15 Exhibit AMWU 1. 16 PN2035 17 Exhibit AMWU 11. 18 Evidence of Linda Pope, AMWU Organiser, PN271. 19 Transcript PN453 20 Exhibit AMWU 8 21 PN2660-2684 22 PN844, Evidence of Mr.Everitt; PN2256-2282, submissions of Mr.Hale. 23 PN842-844 24 PN2272 25 PN1606-1610 26 PN1873-1874 27 Exhibit H4, Statement of Jason Wilkins, paragraph 2.6 28 Exhibit AMWU 3, PN343-360 29 PN851; PN767-768 30 Exhibit H4, Statement of Jason Wilkins, paragraphs 3.7-4.3 31 Exhibit AMWU 3, Exhibit H4, Statement of Jason Wilkins, paragraphs 4.4-4.11 32 eg. Darryl Jones, Production Worker, PN692. 33 Con-Stan Industries of Australia Ltd v. Norwich Winterthur Insurance (Australia) Ltd (1985-86) 160 CLR 226 at 236-237; Byre and Frew (1995) 185 CLR 410 at 440 34 See Australian Rail, Tram and Bus Union , PR905645, Polites SDP, 26 June 2001, at paragraph 14; Coca Cola Amatil v. ALHMWU , Williams SDP, (1999) 95 IR 197 at 199. 35 See The Age. 36 Australian Glass Manufacturers Company v. Australian Glass Workers Union , Smith C, Print H7884, 24 April 1989. 37 Engine Drivers and Firemen's (General) Award 1981, Maddern J, (1968) 124 CAR at 111; Uranium and Metalliferous Mining (NT) Award 1984 (1984) 292 CAR 3. 38 Australian Postal Commission (Postal Workers) Award 1985, Munro and Peterson JJ, Merriman C, Print H5888, 17 January 1989. 39 The Age , paragraph 47 40 R v. Gallagher (1965) 115 CLR 335 at 340, per Barwick CJ, McTiernan, Menzies and Owen JJ; Building Construction Employees and Builders Labourers Award 1982, Alley J, (1983) 289 CAR 126 at 136 41 PN2022-2043 42 (1989) vol. 30 IR 362 at 378 43 Print H8433, Lear C 44 Exhibit AMWU 8. 45 Exhibit H4, Witness statement of Jason Wilkins, paragraph 4.8, Katrina Saunders paragraph 5.6 46 Exhibit H5, Statement of Ms.Katrina Saunders, para 4.1; Submissions of the Respondent, para 4.1 - 4.2, 5.1 - 5.2; PN1925 - 1928; PN1954 - 1956 47 Attachment 1 to Exhibit H2. 48 PN2187; 2066 49 PN2427-2435 50 Exhibit AMWU4 contains the Masterfoods individual grievance procedure. 51 Evidence of Linda Pope, PN208-21219 52 Exhibit AMWU 9, letter from Katrina Saunders to Linda Pope, 14 April 2004, in response to Pope letter of 8 April, Exhibit AMWU 10. 53 Giudice J, President, Harrison SDP, Simmonds C, PR940569, 18 November 2003 54 Award Simplification Decision , P7500 at 63, clause 29.2 of the Award. 55 Clause 6.1 56 See PR944901, paragraphs 32-33. 57 AMWU submissions, PN1985-1996 58 AMWU v. H.J.Heinz , PR918816, 13 June 2002 59 Appendix B - Mars Confectionery of Australia - Continuous Shift Work, Confectioners Award 2002 AW818086 60 Clause 6, Confectioners Award 2002 AW818086