| FWC 2726|
|FAIR WORK COMMISSION|
Fair Work Act 2009
s.240 - Application to deal with a bargaining dispute
West Australian Newspapers Limited
PERTH, 2 MAY 2016
Application to deal with a bargaining dispute.
 West Australian Newspapers Limited (WAN or Applicant) has made application to the Fair Work Commission (Commission) to deal with a bargaining dispute pursuant to s.240 of the Fair Work Act 2009 (FW Act).
 WAN is in dispute with the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Construction, Forestry, Mining and Energy Union (CFMEU) (collectively the Unions) as bargaining representatives for a replacement enterprise agreement to the Production Employees Enterprise Bargaining Agreement 2012 (2012 Production Agreement).
 The 2012 Production Agreement reached its nominal expiry date on 30 September 2015.
 At the time the application was made, on 22 January 2016, WAN and the Unions had met on eight (8) occasions but had not reached agreement on a replacement to the 2012 Production Agreement.
 The Commission has facilitated five (5) further conciliation conferences to assist the parties to reach settlement on a replacement enterprise agreement. A further three (3) scheduled conferences were cancelled at the request of either or both parties.
 WAN has requested, in accordance with s.595(2)(b) of the FW Act, that the Commission consider making a recommendation or express an opinion with respect to the dispute.
 To assist in my determination of whether to make a recommendation or express an opinion, I requested WAN to forward to the Unions the key elements of its proposed 2012 Production Agreement. I requested the Unions to respond to the Employer’s key proposals. This documentation exchange was completed on 29 April 2016.
 The Unions conclude their submission with the statement:
“…it is the intent and goal of the membership to negotiate a new Agreement, and does not consider WAN’s proposal to continue on the expired agreement an acceptable outcome.”
 In light of this statement and the views expressed by both parties in the conciliation conferences, I intend to express the following Opinion.
 In expressing this Opinion, I intend to focus on two (2) key issues which I will describe as:
Allocation of work
 The 2012 Production Agreement contains the following provisions:
“It [the 2012 Production Agreement] is not intended to replace or terminate current arrangements, including The West Employees performing The West work and Colour Press Employees performing Colour Press work. Any changes to current arrangements will be addressed through the Introduction of Change process by either the Employer or Employees” (my emphasis).
 Put shortly, the 2012 Production Agreement retains the current allocation of work between WAN and Colour Press. However, any proposed change to the current arrangement, is subject to the Introduction of Change process in the Agreement.
 The Introduction of Change process is set out in Clause 33 of the 2012 Production Agreement. At Step 6 of the change process, it reads:
“In the event that the Manager and the Employees are unable to reach agreement on these changes within a maximum of 20 working days, the Dispute Settlement Procedure [DSP] may be followed to resolve the matter. The Dispute Settlement Procedure must be commenced within 7 days of the expiry of the 20 day period, otherwise the change will be taken to have been agreed to” (my emphasis).
 To summarise, WAN and the Unions have agreed in the 2012 Production Agreement, that the current allocation of work remains, subject to any change to those arrangements being processed through the Introduction of Change procedure. If those procedures fail to reach a settlement, the dispute may be referred and resolved through the DSP provisions which includes arbitration in the Commission.
 What are the key proposals that WAN is proposing?
 WAN is seeking, in the proposed replacement enterprise agreement:
“The reallocation of a small percentage of existing WAN work away from WAN employees, which in turn gives WAN the ability to direct a substantial proportion of new work to WAN employees.
By employees insisting on retaining all historical WAN work, WAN’s ability to allocate new work to WAN employees is significantly limited. By agreeing to the proposed EBA package, employees will see the workload split changes as follows:
Machine hours – WAN 41.2% Colour Press 58.8%
Man hours – WAN 59.5% Colour Press 40.5%”
 WAN advises that the current workload allocation is:
“Machine hours - WAN 37% Colour Press 63%
Man hours – WAN 55.5% Colour Press 44.4%”
 In a conciliation conference, on a “without prejudice” basis, WAN defined “a small percentage”, as 5%.
 Reduced to its simplest, WAN’s proposal is that, in exchange for approximately 5% of current WAN employees work being redirected to Colour Press employees, WAN employees will increase its overall proportion of work from 37% to approximately 41.2%.
 I do not have the benefit of WAN’s response to the Unions most recent proposals (29 April 2016), accordingly, I intend to proceed on the basis that they are rejected by WAN.
 If the Unions’ primary goal is to retain the current work allocation, it cannot do so with certainty. I say this because, if WAN wishes to change the current allocation, it is required to instigate a consultation process and, if necessary, a DSP process which may lead to arbitration. There is no certainty in arbitration.
 With respect to any “new work”, there is no obligation, in accordance with the 2012 Production Agreement, for WAN to allocate any or all of that work to WAN employees.
 In my view, for a party in negotiations not to accurately recognise the reality of the situation it finds itself in, can lead to a wrong approach being adopted in bargaining.
 The reality of this particular aspect of the dispute is that WAN wishes to make changes to the current allocation of work. WAN can adopt a “go it alone” approach and utilise the Change Consultation and DSP processes, or adopt what is commonly described as a “win-win” approach. WAN has chosen the win-win approach by increasing the share of overall work to WAN employees.
 If the current impasse is not broken and a cooperative solution not reached, there are alternative strategies available to both parties. I do not intend to set them out or encourage their adoption but to say that creative solutions are generally not developed in a threatening and non-cooperative environment.
 I now turn to the “classification” dispute.
 Clause 8: Terms of Employment of the 2012 Production Agreement reads:
“The Employer may direct an Employee to carry out such duties as are within the limits of the Employee’s classification, skill competence and training”.
 WAN, as part of bargaining for a replacement enterprise agreement, is seeking, “removal of demarcations that restrict the reallocation of work outside an employee’s classification by removing the word “classification”.”
 The Unions submit, “the membership overwhelmingly rejects WAN’s proposed removal of the word “classification”. The Unions oppose WAN being in a position to “work down” employees.
 During the conciliation conferences, I made the observation that the current subclause in paragraph  can be interpreted in more than one way. The use of the word “and” can be interpreted in both a conjunctive and disjunctive sense. In the disjunctive sense, the word “and” can be interpreted as if it is “or”.
 Putting aside whether “and” can be interpreted as “or”, if the word “classification” is deleted, WAN can only direct an employee to carry out his or her duties that are within that person’s “skill, competence and training”. I draw attention to this for the reasons set out in the following paragraphs.
 During a conference, the hypothetical situation was put of WAN being able to direct a carpenter to carry out the duties of an electrician. The proposition is absurd and detracts from any opposition to the Employer’s proposal.
 Secondly, a further hypothetical situation was put in conference of WAN directing an employee to clean toilets. Likewise, I consider the assertion without support and cannot be reliably inferred from WAN’s proposal.
 I now turn to the basis of the Unions’ opposition which is described as WAN having the ability to direct employees to “work down”.
 “Work down” is not defined but I assume it to mean that employees may be directed to carry out work which that person considers less complex or responsible.
 In Clause 5 of the 2012 Production Agreement there is reference to the Printing (Newspaper) Award 1979 (1979 Award).
 In the 1979 Award, at subclause 7(6)(a), it states:
“An employer may direct an employee to carry out such duties as are within the limits of the employee’s skill, competence and training.”
 It can be readily seen from the 1979 Award, there is no reference to “classification”.
 Further, it is noticeable that in both the 1979 Award and the 2012 Production Agreement, there is no definition of the various classifications of occupation.
 Since 2009, the word “classification” has been incorporated into various industrial instruments. However, the various industrial instruments do not contain definitions or descriptions of the various classifications.
 I consider it fair to say that, even if the various instruments contained a description of the qualifications/skills/duties for each classification, they would not be considered exhaustive. Any list of skills/duties would be indicative of what employees would be expected to do.
 Putting aside mandatory qualifications, position descriptions are usually a reference point for recruitment, remuneration, training, promotion and organisational separation. Just as same positions differ within various industries, so do the skills/duties within a particular position. Performance of skills/duties vary from a responsible/highly technical activity to those tasks of little judgement or responsibility – routine activities.
 It would be a mistake to classify positions on the basis of the least demanding duties/skills. Likewise, it would be a mistake to consider that because a person carries out difficult and technical work, he or she cannot be asked to carry out duties described as “less important”. A mixture of duties and different levels of responsibilities in a position is not remarkable.
 Generally, a workplace consists of employees working cooperatively towards a common purpose – presumably, in this case, the production and despatch of printing products. If the proposed duties are beyond the person’s skill, competence and training or unsafe, one would question why WAN would direct an employee to carry out such activities. However, if such activities meet the criteria described, immediately preceding, one would ask why the Employer is prevented from directing an employee to carry out such tasks/duties. This leads me to my next observation.
 If WAN’s primary objective is to make use of an employee’s time, competence, skill and training, that is different to “targeting” individual employees with allegedly “down work”. To allocate a disproportionate amount of allegedly “down work” to particular employees, or in overall time, would not be reasonably construed as fair to those individuals or the position classification. For these reasons, there needs to be caution. However, if the alleged “down work” is not disproportionate in time/activities, safe and within an employee’s skills, competence and training, such a direction by WAN appears consistent with the 1979 Award, changing requirements of workplaces and reasonably within the scope of an employee’s contract of employment.
 Having expressed this Opinion, I now leave it to the Applicant to contact my Associate should any further assistance be required of the Commission to deal with the bargaining dispute.
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