[2019] FWC 3572 [Note: An appeal pursuant to s.604 (C2019/3624) was lodged against this decision - refer to Full Bench decision dated 27 August 2019 [[2019] FWCFB 5745] for result of appeal.]
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.739—Dispute resolution

Irene Guesdon
v
Australia and New Zealand Banking Group Limited T/A ANZ
(C2018/5316)

COMMISSIONER GREGORY

MELBOURNE, 23 MAY 2019

Alleged dispute about matters arising under the enterprise agreement.

Introduction

[1] Mrs Irene Guesdon has been employed by the Australia and New Zealand Banking Group Limited T/A ANZ (“ANZ”) since 1994 and has worked as a Service Consultant at the Hoppers Crossing branch, which is located at the Werribee Plaza, since 1997. However, in July 2018 ANZ announced some changes to its mode of service delivery and as a consequence Mrs Guesdon’s role as a Service Consultant is no longer required to be performed at the Hoppers Crossing branch.

[2] Mrs Guesdon was offered a new position of Banking Consultant at the Hoppers Crossing branch but did not believe she was capable of taking on this role. She was then provided with the opportunity of relocating to either the Melton or Brimbank branches of the Bank in a Service Consultant role. However, she claims in response that these options involve an “unreasonable impact on your travel time or costs” under the Agreement that covers the parties, given the time, distance and cost involved in travelling from her home to the new locations. The relevant Agreement is the ANZ Enterprise Agreement 2015 - 2016 (“the Agreement”). 1 She continues to submit that the current relocation proposals are not a viable option, and if another position within a reasonable commuting distance cannot be found then her position should be made redundant.

[3] Mrs Guesdon has now made application under s.739 of the Fair Work Act 2009 (Cth) (“the Act”) seeking to have the Commission deal with the dispute in accordance with the dispute resolution procedure in clause 8 of the Agreement. The matter was dealt with in conference on 5 October 2018, but was not able to be resolved. The Finance Sector Union (“the FSU”), who act on behalf of Mrs Guesdon, then requested it be determined by way of arbitration and it was accordingly set down for hearing on 27 November 2018, with directions issued for filing and service of evidence and submissions.

[4] Mr A. Cousner from the FSU appeared on behalf of Mrs Guesdon. Mr C. Gianatti from KHQ Lawyers appeared on behalf of ANZ. Mr Gianatti was given permission to appear under s.596(2)(a) of the Act as the matter involves a degree of complexity and his involvement might enable it to be dealt with more efficiently.

The Evidence and Submissions

The Applicant

Mrs Irene Guesdon

[5] Mrs Guesdon commenced with ANZ on 21 January 1994 and has worked as a Service Consultant or Bank Teller for that entire time. She has been located at the Hoppers Crossing branch at the Werribee Plaza since September 1997.

[6] However, in July last year ANZ announced that it proposed to implement a new “customer engagement initiative” and Mrs Guesdon received an information pack about these changes at a team meeting on 3 July 2018. She was then told that as a consequence of these changes her role of Service Consultant at the Hoppers Crossing branch was no longer required.

[7] On 19 July she was offered what she described as a “non-comparable” 2 Banking Consultant role at the Hoppers Crossing branch, which she subsequently declined. Then on 17 August she was offered the opportunity of relocating to the Melton and Brimbank branches in a Service Consultant role. Under this proposal she would work on each Tuesday and Friday at the Melton branch and on every second Saturday at the Brimbank branch.

[8] On 21 August she attended a meeting with her Branch Manager, Ms Susan Grant, and the District Manager, Mr Leigh Scukovic, together with a representative from the FSU. She indicated in those discussions that she was concerned about the proposed relocation due to the additional travel times and cost, as well as the absence of a teller cash recycler machine (“TCR”) at the Brimbank branch. She suffers from arthritis, which affects her hands, and states that she cannot count cash without the assistance of a TCR machine which automates the cash handling process. As a consequence the FSU formally wrote to ANZ on 23 August taking issue with the proposed relocations, which it claimed were unreasonable. ANZ subsequently wrote back the following month claiming it did not believe this was the case.

[9] Mrs Guesdon lives in Wyndham Vale and states that driving from her home to the Hoppers Crossing branch usually takes around 15 minutes, but on occasions can take as long as 30 minutes in heavy traffic. On two separate occasions she drove from her home to the Melton and Brimbank branches at 8.00 am in the morning to assess the distance and travel times. On each occasion the trip took at least 50 minutes in what she described as “light traffic.” 3 The shortest distance from her home to the Hoppers Crossing branch is 11.6 kilometres. The shortest distance from her home to the Melton branch is 27.4 kilometres, while the Brimbank branch is 37.4 kilometres away. She estimates that she would also incur additional fuel costs of between $2.50 and $5.00 per day if required to travel to either the Melton or Brimbank branches. Mrs Guesdon considers that the combination of these additional distances, driving times and costs are unreasonable, particularly at her age. There are also no other viable public transport options.

[10] In addition, if she was required to work at the Brimbank branch she would probably drop the Saturday shift, given the travel time involved and the lack of a TCR machine. This would leave her worse off financially. She is also only able to work on Tuesday and Friday during the week as she has caring responsibilities for her grandchildren on the other weekdays.

[11] She also indicated in cross-examination that she was able to manually count cash, but her arthritis meant she could not carry out this task continually. However, she acknowledged that ANZ was aware she suffered from arthritis and had been trying to relocate her to a branch that had a TCR machine or some other form of automated support to enable her to count cash. She also acknowledged that the only real difference between a cash counting machine and a TCR was that the denominations have to be separated.

The Applicant’s Submissions

[12] The FSU submits on behalf of Mrs Guesdon that the relevant provisions in the Agreement in the context of this matter are clause 2.4(i) and Schedule 5 “Unreasonable Impact on your travel time or costs.” Clause 2.4(i) states:

“ANZ may transfer you to another work location either temporarily or permanently provided that:

(i) you are consulted;

(ii) the transfer does not involve an Unreasonable Impact on your travel time or costs; and

(iii) your personal circumstances and preferences are genuinely considered by ANZ before the decision is made.”

[13] Schedule 5 “Unreasonable Impact on your travel time or costs” states:

“Unreasonable Impact on your travel time or costs” means where ANZ determines there is an unreasonable impact on your travel time or costs, taking into account the following factors:

  the different types of transport available to you;

  the location of the workplace and distance from your current work location and home;

  the amount of additional costs to you, such as having to pay additional tolls or an increase in public transport costs; and

  any additional travelling time to the new workplace.”

[14] The FSU submits in regard to clause 2.4(i)(ii) that the proposed relocations will have an unreasonable impact on Mrs Guesdon’s travel time and costs. She faced the prospect of her commuting time increasing from an average of 15 minutes to an average of 50 minutes. She will also incur an increase in fuel costs of between 236% and 348%. This assessment does not take into account the additional vehicle servicing costs that she will also incur.

[15] The FSU also relies on clause 2.4(i)(iii) and submits that Mrs Guesdon’s personal circumstances have not been genuinely considered by ANZ. It refers in this context to her age and the fact she is finding it increasingly difficult to drive for longer distances. In addition, she has arthritis in both hands and the absence of a teller cash recycler machine at the Brimbank branch means she is unable to work at that location, resulting in a loss of income. She also cares for her grandchildren on a regular basis and as a consequence is not in a position to work on other days in the week.

[16] The FSU continues to submit that the words in clause 2.4 should be interpreted subjectively and should be focused on the particular individual involved. It submits in this context that Mrs Guesdon’s travel time and travel costs will increase threefold. In addition, the evidence indicates that ANZ has not taken into account the additional travel costs that would be imposed upon Mrs Guesdon as a consequence of the proposed transfers. This alone should be sufficient to invalidate the direction given to her. She will also be unreasonably impacted, given her existing medical condition. The FSU does acknowledge that ANZ may have used its best efforts to find a workable transfer to another location, however, in this case the only available options do not satisfy the requirement to not have an “Unreasonable Impact on your travel time or costs.”

[17] It submits, in conclusion, that the Commission should find that the proposed transfers to the other branches will have an unreasonable impact on Mrs Guesdon. It continues to submit that such a finding would mean that the provisions in clause 5 of the Agreement accordingly apply. It again follows that if no other comparable position can be found for Mrs Guesdon, pursuant to sub clause 5.10, then the terms of sub clauses 5.8 and 5.10 should apply and she should be made redundant.

The Respondent

Mrs Tammy Symmons

[18] Mrs Tammy Symmons is a Regional Business Excellence Manager with ANZ and has been in this role since July 2016. She is responsible for branch operations, risk compliance, recruitment, change management, escalated customer or employee complaints, and managing rosters at the ANZ branches within her region.

[19] Mrs Symmons made reference in her witness statement to the declining number of cash transactions that now occur. She also provided evidence about the operation of teller cash recycler and cash counting machines and indicated that the only significant difference between these machines is that a teller is not required to split the denominations prior to cash being inserted into a TCR machine. In addition, she could not recall any employees raising manual counting of cash as a health concern during the time she had been employed in her current role. She also indicated that all ANZ branches have a cash counting machine.

Ms Deborah Donald

[20] Ms Deborah Donald is the Managing Director of O’Brien Traffic and was commissioned by ANZ to prepare a report regarding Mrs Guesdon’s proposed relocation. She indicated in the report, “Based on my investigations I conclude that the travel time between the Applicant’s home and current place of employment (Werribee Plaza ANZ) is typically significantly longer on weekday mornings than the 15 minutes stated at Paragraph 20 in the Applicant’s witness statement.” 4 The report also indicated that the travel time details were based on travel observations carried out on Friday 9 November, Saturday 10 November, and Tuesday 13 November 2018.

Mr Leigh Scukovic

[21] Mr Scukovic is employed by ANZ as the District Manager of the Melbourne West District and has been in this role since May 2018. However, he has worked for ANZ for a total of 14 years in a variety of different roles. His current role requires him to travel on at least 4 days each week, at various times in the day, between the 12 branches located in the Melbourne West District.

[22] The new “Customer Engagement Initiative” developed by ANZ has already been implemented in seven branches within the Melbourne West District, including the Werribee Plaza branch. It involved, in part, Service Consultants moving to a new Banking Consultant role. The Werribee Plaza branch was chosen primarily because it already has a TCR machine and did not require any further refurbishment in order to implement the initiative. Mr Scukovic subsequently considered possible relocation opportunities within the Melbourne West District in the event that any of the existing Service Consultants did not want to take on the new roles. He was subsequently informed by the Werribee Plaza Branch Manager, Ms Susan Grant, that Mrs Guesdon may have concerns about the new initiative because she suffered from arthritis and may find manual telling difficult. She also suggested that Mrs Guesdon may take issue with the possibility of relocation to another branch.

[23] Mr Scukovic then turned to consider the possible relocation options for Mrs Guesdon. He gave priority to another branch that had a TCR machine so she would be performing similar work if relocated. The details of the new Customer Engagement Initiative were then provided to the employees at the Werribee Plaza branch and Mrs Guesdon subsequently indicated that she was not interested in taking up a Banking Consultant role. Mr Scukovic was then asked by Ms Grant to provide details about possible relocation options for Mrs Guesdon. It was finally decided after a Google Maps search that the best options would be relocation to the Melton branch, which had a TCR machine, and to the Brimbank branch every second Saturday, given it had a cash counting machine.

[24] Mrs Guesdon then asked for a meeting to discuss the new initiative and the potential impact it was likely to have on her. A meeting was subsequently organised for 21 August 2018 and Mr Scukovic gave particular consideration to the following matters in anticipation of that meeting:

  Distance – after conducting a Google Maps search and considering the surrounding branches and the potential additional distance and travel time it appeared that Melton was the obvious choice for any possible relocation.

  Free parking – it appeared that this was an option at both the Melton and Brimbank branches and possibly the Williamstown branch.

  The availability of TCR machines – Melton and Williamstown were the only branches that had TCR machines.

  Shifts – it was possible for Mrs Guesdon to have the option of working the same shifts at other locations or other shift options could also be considered. A potential change in her hours of work could also be considered.

  Other Districts – consideration was given to possible relocation within another District, although there were no obvious options in this context.

[25] Various possible options were then outlined to Mrs Guesdon in the meeting on 21 August, which was also attended by representatives from the FSU. Mrs Guesdon was also asked during the course of the meeting whether there were any other options that had perhaps not been considered, but no further suggestions were received in response.

[26] Mr Scukovic then received an email from Mr Romer of the FSU on behalf of Mrs Guesdon on 23 August indicating that the proposed transfer would have an unreasonable impact on her travel times and costs. It requested, in conclusion, that she be provided with:

“1. Deployment to a branch within a reasonable commuting distance; and

2. The maintenance of the reasonable adjustments previously agreed including an appropriate TCR.” 5

[27] Mr Scukovic then conducted a further Google Maps search to estimate the additional travel time involved in any relocation to a different branch. He also attended the Melton and Brimbank branches to gain a better understanding about the operation of those branches, and how Mrs Guesdon would be involved in working at those locations. He subsequently concluded that the relocation to the Melton branch was reasonable because it had a TCR machine and the additional distance from her home “was reasonable in terms of the additional time and costs.” 6 He also considered that relocation on every second Saturday to the Brimbank branch was reasonable, based on similar grounds. He indicated in conclusion, “I did the travel analysis for the Melton relocation option. It seemed to me considering where employees lived in the District and the distances that some people travelled to work that anything up to an hour was going to be reasonable.”7

[28] On 11 September Mr Scukovic wrote to Mr Romer indicating that the travel time and extra costs involved in relocation to the Melton and Brimbank branches were not unreasonable, and the change was to take effect from 1 October 2018. He also indicated that his more recent observations have confirmed his view that the proposed relocation was reasonable, and any additional travel time to the Melton and Brimbank branches would be comparable to the travel times of other employees. There was also ample parking available at both locations. In addition, there would be no additional pressure on Mrs Guesdon in the proposed new roles, and they provided an opportunity for her to remain in an important customer service role while utilising her existing skills.

[29] Mr Scukovic also indicated in cross-examination that he had carried out various searches between 22 and 24 August to try and get an assessment of the additional travel time involved in the relocations. Based on the experience of other employees he also considered that additional travel time of up to an hour could be considered to be reasonable. However, he did not do any calculations about the additional fuel or fuel costs that might be involved as a consequence of the relocations. However, there were no additional tolls or parking fees involved in any of the changes being proposed.

Ms Susan Grant

[30] Ms Susan Grant is the Branch Manager of the Werribee Plaza branch and has been in that role since March 2013. After being made aware of the proposed new Customer Engagement Initiative she met with all staff on 3 July 2018 to discuss the new Banking Consultant roles, and subsequently offered to have one-on-one meetings with each staff member to talk through any additional questions and/or concerns.

[31] She then met with Mrs Guesdon, who told her she was not going to take on the new Banking Consultant role because it was too much to cope with at her age. However, Ms Grant offered to train and support her in the new role and asked she take further time to consider the Banking Consultant role before making a final decision. However, on 12 July Mrs Guesdon sent an email indicating she did not wish to participate in training for the new role.

[32] Ms Grant then had a series of further meetings with Mrs Guesdon in which she reiterated her concerns about taking on the Banking Consultant role and spoke about the other options that might be available. On 17 August she again met with Mrs Guesdon and spoke to her about a potential relocation to another branch, including the Melton and Brimbank branches. Mrs Guesdon raised a number of concerns about these options but was told to go away and give further consideration to the hours and the days that she wished to work. A further meeting then took place on 21 August with the FSU representative attending with Mrs Guesdon. A range of options were again considered and Mrs Guesdon indicated she would need to give further consideration to her current circumstances before confirming her position.

[33] Mr Scukovic then informed Ms Grant in early September that he had decided it was appropriate to relocate Mrs Guesdon to the Melton and Brimbank branches on the basis that this did not involve unreasonable additional travel time and would not impact on her caring responsibilities. A cash counting machine was also available at the Brimbank branch on every second Saturday to assist in the cash counting duties. Ms Grant also indicated that while she was aware Mrs Guesdon had arthritis, the role of a Service Consultant regularly involves counting cash, even in a branch that has a TCR machine. In addition, she had observed Mrs Guesdon counting cash on a number of occasions and she had never asked for any assistance in carrying out this task.

[34] Ms Grant also indicated in cross-examination that she understood the additional travelling time for Mrs Guesdon was around 30 minutes and she did not consider that to be unreasonable. She also indicated that she considered that additional travel time of more than one hour might be unreasonable.

The Respondent’s Submissions

[35] ANZ submits that while it understands Mrs Guesdon’s preference to remain at the Werribee Plaza branch it has consulted with her about the proposed changes, and has genuinely taken into account her personal circumstances and preferences. It submits that it has found an appropriate relocation opportunity for her to continue in an ongoing role that does not have an unreasonable impact on her travel time or costs. Therefore, the direction that was given to her on 11 September to relocate to the Melton and Brimbank branches was a valid direction in the context of the relevant provisions in the Agreement.

[36] It continues to submit that in approaching its task the Commission must be guided by the principles set out in the Full Bench decision in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005 (“Berri”) at [114]. The matter accordingly stands to be determined on the plain words of the Agreement, and the relevant words should simply be given their ordinary and usual meaning consistent with the mutual intention discerned by reference to the objective words of the document.

[37] In dealing with the question of whether the change involves an unreasonable impact on Mrs Guesdon’s travel time or costs it notes that Schedule 5 of the Agreement defines this as being when ANZ determines that outcome having taken into account the specified factors in the definition. It points in this context to the evidence of Mr Scukovic, who reached the conclusion that the transfer would not result in an unreasonable impact on time or travel costs after having considered each of the relevant factors. It continues to submit that if the Commission is satisfied that this process has occurred, and the decision was arrived at taking into account the required factors, then this should be sufficient to dispose of this aspect of the matter.

[38] It continues to submit that the approach adopted by the FSU in its submissions is fallacious for the following reasons. Firstly, the test of reasonableness in clause 2.4(i)(i) and (ii) bears the character of an objective test, rather than a subjective one. Secondly, the impact in terms of the end result must be considered, and not just the size of the increase. For example, a fivefold increase in travel time from two minutes to ten minutes would not make the end outcome unreasonable. In this context it refers to the decision of Deputy President Sams in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Ausgrid Management Pty Ltd t/a Ausgrid [2018] FWC 4814 (“Ausgrid”) at [68]–[73]. It also relies on the further decision of Deputy President Sams in Association of Professional Engineers, Scientists and Managers, Australia v NSW Electricity Networks Operations Pty Limited t/a TransGrid [2018] FWC 6335. It finally submits that giving genuine consideration to personal circumstances and preference forms no part of clause 2.4(i)(i) and (ii), although it is relevant to the overall test.

[39] In dealing with the specific considerations referred to in the definition of “Unreasonable Impact on your travel time and costs” it submits that the Commission should accept that it has been established that public transport is not a viable alternative, and the only relevant comparison is in terms of private car travel.

[40] Secondly, while the increase in distance is from around 11 kilometres to approximately 38 kilometres it is relevant to the question of reasonableness in an objective sense to consider the increased distance in the context of the distances travelled by other employees.

[41] Thirdly, while there are some increased fuel and running costs there are a number of factors that mitigate against the impact of these costs and weigh in favour of the reasonableness of the impact.

[42] In conclusion, while Mrs Guesdon might experience an outcome whereby she is worse off the Commission should nonetheless find on an objective basis that ANZ had correctly concluded that the overall impact on her travel time and costs in light of the above considerations was not unreasonable.

[43] It continues to submit that in terms of the requirement to genuinely consider the Applicant’s personal circumstances this does not mean that ANZ is required to accede to these considerations. However, the evidence does indicate that ANZ gave extensive consideration between the period from 3 July until the decision was finally taken in mid-September to the various issues raised by Mrs Guesdon. Her concerns and preferences regarding her age and driving conditions were genuinely considered, and the routes she would be required to take were familiar to and regularly driven by both Ms Grant and Mr Scukovic. Genuine consideration was also given to the fact she suffered from arthritis and what support might be required to be provided to her as a consequence. It also submits that the evidence indicates that this only affects her ability to count cash, but does not mean she cannot carry out this task. Genuine consideration was also given to her caring responsibilities and the consequent limitations on her availability.

[44] It continues to submit that all of the matters that were taken into account were relevant considerations in terms of what the Agreement requires, and this involved both the employee’s personal circumstances and any unreasonable impact on the travel time or travel costs. There was also nothing that was extraneous or not apposite to the test. It provided an evidence matrix in support of this submission.

[45] It also submits in response to the submissions by the FSU that Mrs Guesdon’s travel costs have not been taken into account, that these costs were taken into account by proxy, based on the percentage increase in distance required to be travelled.

[46] ANZ submits, in summary, that it has properly determined that the proposed relocation would not have an unreasonable impact on Mrs Guesdon, and it has genuinely considered her personal circumstances and preferences before making the decision to relocate her. It indicated in conclusion that while it remains empathetic to her position the application should be dismissed.

Consideration

[47] In coming to a decision in this matter I am satisfied at the outset that ANZ has acted in good faith in its dealings with Mrs Guesdon in circumstances where her long-standing position of Service Consultant is no longer available at the Hoppers Crossing branch. For example, it did not require her to take on the new Banking Consultant role at the branch, despite the Branch Manager believing she was capable of performing this role and being prepared to support her in the transition to the new position. It then sought to relocate her to another Branch in circumstances where there were limited available options in the adjacent region. It has also had regard to her caring responsibilities and her physical limitations. It also ensured that free parking was readily available at the other locations. It has accordingly endeavoured to land on an outcome which would be acceptable to Mrs Guesdon in circumstances where her Service Consultant role at the Hoppers Crossing branch was no longer available.

[48] However, despite these efforts the proposed changes are clearly significant for Mrs Guesdon in circumstances where she has worked for more than 22 years at the Hoppers Crossing branch of the Bank, which is located only around 15 minutes from her home. The changes must now be considered in the context of the relevant provisions in the Agreement.

[49] However, before dealing with the relevant clauses in the Agreement it is appropriate to briefly review the principles to be applied to the interpretation of an enterprise agreement. There appears to be no issue between the parties that the principles enunciated by the Full Bench in Berri are to be applied, and it is worthwhile to briefly revisit those principles. The Full Bench in Berri commenced its review of those principles by noting, “The construction of an enterprise agreement, like that of a statute or a contract, begins with a consideration of the ordinary meaning of the relevant words. The disputed words must be construed in the context of the agreement as a whole.” 8 It continued to refer to the decision in Amcor Limited v CFMEU.9

[50] It also noted that, as a general principle, all of the words contained in an enterprise agreement must, prima facie, be given some meaning and effect. It continued to note (footnotes omitted):

“Such an approach accords with the principles of statutory construction, and, as a general proposition, the principles developed in the general law in the context of the interpretation of statutes are applicable to the interpretation of enterprise agreements.” 10

[51] It also noted that (footnotes omitted):

“There is a long line of authority in support of the proposition that a ‘narrow or pedantic’ approach to the interpretation of industrial instruments (such as enterprise agreements) is to be avoided, and that ‘fractured and illogical prose may be met by a generous and liberal approach to construction’.” 11

[52] It continued to note,

“A consequence of such an approach may be that some principles of statutory construction have less force in the context of construing an enterprise agreement.” 12

[53] The Full Bench finally decided to set out the principles that should be applied in such circumstances. It is not necessary to set out those principles in full at this point save to note that the Full Bench made clear that in construing an enterprise agreement it is first necessary to determine whether the agreement has a plain meaning or whether it is ambiguous or susceptible of more than one meaning.

[54] The relevant clauses in the ANZ Enterprise Agreement 2015 - 2016 have been detailed at a previous point in this decision, however, it is useful to set them out again.

[55] Sub clause 2.4(i) is contained in the Agreement as part of clause 2, which is headed “WHAT ARE MY WORKING ARRANGEMENTS?”

[56] Sub clause 2.4 is then headed “What if things change?” It clearly contemplates that an employee’s working arrangements may change in a range of different respects, and endeavours to set out what is required to occur on such occasions. Sub clause 2.4(i) deals specifically with transfers to another work location. It states:

“ANZ may transfer you to another work location either temporarily or permanently provided that:

(i) you are consulted;

(ii) the transfer does not involve an Unreasonable Impact on your travel time or costs; and

(iii) your personal circumstances and preferences are genuinely considered by ANZ before the decision is made.”

[57] Schedule 5 of the Agreement entitled “DICTIONARY” then contains a definition of “Unreasonable Impact on your travel time or costs.” It states:

“Unreasonable Impact on your travel time or costs” means where ANZ determines there is an unreasonable impact on your travel time or costs, taking into account the following factors:

  the different types of transport available to you;

  the location of the workplace and distance from your current work location and home;

  the amount of additional costs to you, such as having to pay additional tolls or an increase in public transport costs; and

  any additional travelling time to the new workplace.”

[58] The first requirement in sub clause 2.4(i) in relation to any transfer to another work location is that “you are consulted.” Compliance with this requirement is not at issue in this case and the evidence of Mr Scukovic and Ms Grant demonstrates that adequate processes of consultation were gone through once the implications of the new Customer Engagement Initiative became known. While it is not directly relevant to the determination of this matter the evidence of Ms Grant, in particular, indicates that she encouraged and offered support to Mrs Guesdon to take up one of the new positions of Banking Consultant so that she could remain employed at the Hoppers Crossing branch.

[59] There are then two further considerations that need to be taken into account in determining whether “ANZ may transfer you to another work location either temporarily or permanently…” Firstly, whether “the transfer does not involve an Unreasonable Impact on your travel time or costs” and, secondly, “your personal circumstances and preferences are genuinely considered by ANZ before the decision is made.” I now turn to deal with each of these considerations

“The transfer does not involve an Unreasonable Impact on your travel time or costs.”

[60] As indicated, this consideration is to be dealt with taking into account the matters referred to in the definition in Schedule 5 of the Agreement.

[61] It is noted at the outset that the definition in Schedule 5 refers to “…where ANZ determines there is an unreasonable impact on your travel time or costs.” ANZ indicated in its submissions that these words, prime facie, leave the determination of this issue to ANZ, and it was therefore “actually technically incompetent jurisdictionally for the Commission to supplant its decision for that of ANZ.” 13 However, it also conceded that the Commission had a role in determining whether the relevant considerations have been taken into account by ANZ in determining whether there was an unreasonable impact on the employee’s travel time or costs.

[62] The next issue dealt with in the parties’ submissions concerns the nature of the test to be applied in considering whether there is “an unreasonable impact on your travel time or costs.” The FSU submits on behalf of Mrs Guesdon that the relevant words should be interpreted subjectively, and the focus should be on the circumstances of the individual involved. ANZ submits, in response, that any assessment of what is reasonable should be considered on the basis of an objective test, rather than being viewed subjectively. It uses the example of an increase in travel time from 3 minutes to 15 minutes. While this could be construed as representing a fivefold increase in travel time, by any objective standard it would not be considered unreasonable for a person to be travelling for 15 minutes to work.

[63] I am satisfied, in response, that considerations of what might be reasonable or unreasonable do imply a requirement to consider those matters objectively and by reference to some objective standard. However, at the same time the relevant words in the Agreement also make specific reference to the impact “…on your travel time and costs.” This implies that the particular impact on the individual concerned must also be taken into account.

[64] In dealing with the question of what might be reasonable or unreasonable in the context of the proposed relocation ANZ relies, in particular, on the decision of Deputy President Sams in Ausgrid. That matter concerned the proposed relocation of ten Portfolio Managers employed by Ausgrid. The relevant provisions in the Agreement did not contain specific provisions as to what was to be taken into account in terms of any decision to relocate employees. However, it was acknowledged by Ausgrid that the right to direct employees in this way was a qualified right, and the direction should be reasonable.

[65] In dealing with the question of what was reasonable or unreasonable Deputy President Sams made reference to the “ordinary English meaning of ‘unreasonable’ as defined in the Macquarie Concise Dictionary, 5th Edition” 14 which states:

adj. 1. not reasonable; not endowed with reason. 2. Not guided by reason or good sense. 3. Not agreeable to or willing to listen to reason. 4. Not based on or in accordance with reason or sound judgement. 5. Exceeding the bounds of reason; immoderate; exorbitant.” 15

[66] ANZ also made reference in its submissions to the following extracts from the Deputy President’s decision:

“I accept unreservedly that the relocated employees will suffer some detriment, including less time at home by being required to travel extra time and longer distances to their work location. Their resistance to this change is perfectly understandable. I could not imagine any employee, who was required to work for more than 5-10 minutes from where they are used to, would welcome relocation ‘with open arms’.

In some cases, extra travel time would be, on any view, plainly unreasonable; if, for example, an employee was directed to relocate to Darwin. (providing there was no contractual terms permitting such a move). Extra travel time might be unreasonable if the employee did not drive or there were no public transport options to get to and from work. In other cases, (as here), personal and family circumstances may be such as to create an unreasonable burden on an employee.” 16

[67] The Deputy President also considered how the time and distance between locations should be established, and whether the one-hour benchmark used by Ausgrid was appropriate in determining whether any additional travel time as a consequence of relocation was reasonable or unreasonable. He stated at [70]:

“Secondly, the ‘waters were muddied’ somewhat by the differences between Ausgrid’s payroll system measure and Google Maps. The payroll system uses suburb to suburb, which I agree, is less accurate than Google Maps. In my experience, Google Maps is the most up to date and relevantly accurate means of establishing times and distances between locations. It was the system preferred by Ausgrid and I see no basis to criticise or impugn it. To suggest that driving the route personally was preferable, gives no more than a snapshot of one journey, with all of the variables and idiosyncrasies one journey might involve. It would not be a reliable indicator, unless conducted on numerous times and in variable conditions. Google Maps is the most accurate and consequently the most utilised measure, as it was here.” 17

[68] In considering whether the one-hour benchmark was reasonable he concluded:

[72] Moreover, one must accept that the benefits of living close to the workplace is ideal, but for the vast majority of employees, lengthy travel to and from work in horrid traffic congestion is regrettably, a fact of working life. I note of course that the travel time in this case is not in the notoriously bad Sydney CBD and other Sydney environs.

[73] In my opinion, in accordance with the earlier matters referred to and balancing the alleviating measures put in place, a period of about one hour travel time to work is not unreasonable, unsafe or excessively onerous - all other things being equal - for an employee in contemporary society. I say ‘about one hour’ as I do not intend to be so proscriptive as to conclude the time benchmark should be exactly one hour.”

[69] The Deputy President accordingly concluded that Ausgrid had the right to direct the employees to move to another location. I am satisfied in response that the decision is of some relevance to the determination of this matter, and the conclusions arrived at about the use of Google Maps and the one-hour benchmark are noted. However, the circumstances involved in that matter can also be distinguished from the circumstances in the present matter.

[70] Firstly, the Agreement in Ausgrid did not contain specific reference to the matters set out in Schedule 5 of the Agreement in this case. It also did not specifically require the personal circumstances and preference of the employees to be genuinely considered, although the Deputy President did note that personal and family circumstances may be such as to create an unreasonable burden on an employee, and that such issues had already resulted in certain employees originally selected for relocation having that decision revoked.

[71] Secondly, the Deputy President makes clear that the one-hour benchmark was not necessarily intended to be a prescriptive figure, and other relevant factors needed to be taken into account in each case. He also had regard in the decision to what he described as “the alleviating measures put in place,” 18 and in this context there is one important distinction between the circumstances involved in Ausgrid and those in the present matter.

[72] Sub clause 41.2 of the Agreement in Ausgrid provided that:

“41.2 Where an employee is transferred to a new place of work, payment for any excess travel shall only continue for the first six (6) months. This does not include transfers or appointments made at the employee's request or which are made for disciplinary reasons.” 19

[73] The following sub clause provided that these payments “for excess travel shall be calculated by estimating the actual travel time and distance by road.” 20 The Deputy President noted in his decision that these extra travel time allowances could result in some employees receiving up to $170 a day in additional excess travel payments. The provision of these additional compensating payments to affected employees are obviously not available in the circumstances of the present matter.

[74] I next turn to deal with each of the matters referred to in Schedule 5 in considering the impact upon travel time and costs. The first of these is “different types of transport available to you.” This consideration is of some relevance in all the circumstances. A realistic option of travel by public transport might have acted to alleviate some of the additional travel burdens associated with the proposed relocations. However, both parties acknowledged that any option of travel by public transport involved massive additional travel times, which were clearly unrealistic, leaving travel by private vehicle as the only realistic option. Mrs Guesdon indicated in her evidence that this involves her driving her 2006 model sedan.

[75] The second consideration involves the location of the new workplace, and the additional distance involved in terms of travel from both the employee’s home and existing workplace. Mrs Guesdon indicated in her evidence that the distance from her home to her existing workplace is 11.6 kilometres, and generally takes around 15 minutes in travel time, although it can take up to 30 minutes. The distance from her home to the Melton branch is 27.4 kilometres or an additional distance of 15.8 kilometres. The distance from her home to the Brimbank branch is 37.4 kilometres or an additional distance of 25.8 kilometres. Mrs Guesdon indicated in her evidence that she had driven to each of these locations on two separate occasions in what she described as light traffic. She left her home at around 8.00 am and the travel time involved in each case was at least 50 minutes, or approximately 35 minutes more than it normally took her to travel to the Hoppers Crossing branch.

[76] The next consideration involves the amount of any additional cost incurred by the employee “such as having to pay additional tolls or increase in public transport costs.” There is, firstly, no suggestion that any additional tolls would be incurred as a consequence of any relocation, and public transport has already been ruled out as a possible option. Mr Scukovic also appears to have been careful to ensure that in any proposed relocation Mrs Guesdon would be able to park without incurring any car parking charges.

[77] There would, however, obviously be some additional costs in terms of the operation of her vehicle, although the Commission was not taken to these matters in extensive detail. The FSU estimates that Mrs Guesdon’s fuel costs would more than double in the context of relocation to the Melton branch, and would more than triple in terms of Brimbank. It estimates that her average fuel consumption at present in each trip to work is approximately 1.276 litres at a cost of $2.09, based on a price per litre of petrol of $1.6412. This would increase to $4.94 for each trip to Melton and to $6.75 for each trip to Brimbank, meaning on a daily basis her fuel costs would increase by $5.70 for travel to and from the Melton branch, and by $9.32 each day for travel to and from the Brimbank branch.

[78] The evidence provided on behalf of ANZ suggested that the price per litre of petrol relied upon by the FSU was excessive, and it was more commonly in the order of $1.50. Neither party provided any specific evidence about the additional vehicle servicing costs involved in the additional distances being travelled. However, they would obviously increase. I am satisfied that it can also be concluded that Mrs Guesdon would incur additional fuel costs of approximately $9.50 each week when she worked on two days at the Melton branch, and an amount of around $15 when she worked an additional shift at the Brimbank branch on each second week.

[79] The final consideration concerns “any additional travelling time to the new workplace.” As indicated, Mrs Guesdon indicated in her evidence that it now takes around 15 minutes in travel time to travel to the Werribee Plaza branch, but can take up to 30 minutes on some occasions. She also indicated that she has driven to the proposed new locations at Melton and Brimbank on two separate occasions, leaving her home at around 8.00 am, and the travel times in each case had been at least 50 minutes. She also indicated that the traffic was relatively light on these occasions, and these travel times could obviously increase in times of significant traffic congestion.

[80] ANZ relied on the report from its so-called expert which suggested that the travel time from Mrs Guesdon’s home to Werribee Plaza could typically take significantly longer than 15 minutes, based on observations carried out on three mornings. It also made reference to Google Maps, and Ms Grant’s understanding that the additional travel time for Mrs Guesdon would be approximately 30 minutes more than her existing travel time. Mr Skukovic also indicated in his evidence that he did not consider this additional travel time to be unreasonable, based on his understanding that many employees in the Melbourne West District travel for around one hour in getting to work. Mr Scukovic and Ms Grant also gave evidence based on their experience of regularly driving around the relevant area. I have no reason to take issue with any of the evidence they provided in this regard.

[81] I am satisfied, based on the available evidence, that it is reasonable to arrive on the following conclusions in regard to the additional distance travelled, time taken, and cost that would be incurred by Mrs Guesdon as a consequence of the proposed locations.

Distance:

  travel to the Melton branch would involve an additional distance of 15.8 kilometres each way, or a total of 31.6 kilometres for the return journey.

  travel to the Brimbank branch would involve an additional distance of 25.8 kilometres each way, or a total of 51.6 kilometres for the return journey.

Time taken:

  travel to each branch would involve an extra 35 minutes travel time each way, or a total of 70 minutes each day for the return journey. However, it is not unreasonable to conclude that these times would extend during periods of significant traffic congestion.

Additional costs:

  travel to the Melton branch would involve additional costs of $9.50 per week.

  travel to the Brimbank branch would involve additional costs of $15 per week.

(These estimates do not take account of additional vehicle servicing costs as no evidence in this regard was provided to the Commission.)


[82] Sub clause 2.4(i) finally requires in sub paragraph (iii) that the employee’s “personal circumstances and preferences are genuinely considered by ANZ before the decision is made.” The plain meaning of these words suggests that it is necessary to first identify any personal circumstances or preferences that the employee has that might be relevant to the proposed relocation. It is then necessary for genuine consideration to be given to any such matters before any final decision is made.

[83] Mrs Guesdon made reference in her evidence to various personal circumstances which had an impact on the decision to relocate her from the Werribee Plaza branch. She made reference to her age and stated that “I am finding it harder to drive long distances due to my age.” 21 She also made reference to her long service with ANZ, and the fact she has been located at the Werribee Plaza branch for more than 20 years.

[84] She also referred to her arthritis, which affects both of her hands, and said “I cannot count cash without the assistance of a TCR.” 22 She was concerned that she might be transferred to a branch that did not have a TCR machine, potentially making it difficult for her to carry out her duties. However, the evidence of Ms Grant is also noted in this context. She was aware Mrs Guesdon suffered from arthritis, but her existing role as a Service Consultant regularly involves counting cash, even in a branch with a TCR machine. She had also observed Mrs Guesdon counting cash on numerous occasions, and was not aware she had ever asked for assistance in carrying out this task. It also appears that as part of any relocation ANZ was concerned to ensure that appropriate support was provided to assist Mrs Guesdon deal with any physical limitations associated with the performance of her work.

[85] Mrs Guesdon also referred to her ongoing caring responsibilities. She looks after her grandchildren on a regular basis on Monday, Wednesday and Thursday in each week while their parents are working, and this limited her available working time options on weekdays to only Tuesday and Friday.

[86] It also goes without saying that in terms of “preferences” Mrs Guesdon’s clear preference is to remain at the Werribee Plaza location, given her familiarity with the work and the branch’s proximity to her home.

[87] After identifying any relevant “personal circumstances and preferences” it is necessary then to be satisfied that these were genuinely considered by ANZ before any decision was made. The evidence of Ms Grant indicates that she endeavoured to satisfy Mrs Guesdon’s preferred option of remaining at the Hoppers Crossing branch. She met with her on more than one occasion to discuss taking on one of the new Banking Consultant roles and offered to train and support her in moving to that role. She also encouraged her to take further time to consider this option before making a final decision.

[88] She also met with her on several occasions to discuss the potential relocation options and suggested she take time to consider the hours and the days on which she wished to work. Mr Scukovic’s evidence also sets out the steps he took to consider the various relocation options, and the possibilities of offering a cash counting machine at the Brimbank branch to assist in cash counting duties. He had also established that the Melton branch already had a TCR machine, which was available to provide assistance to Mrs Guesdon. He was also concerned to ensure that free car parking was available at each location. His evidence also sets out each of the various matters he considered prior to meeting with Mrs Guesdon on 21 August 2018.

[89] I am satisfied in response that this evidence makes clear that Mrs Guesdon’s personal circumstances and preferences were genuinely considered by ANZ before the decision to relocate was made. Obviously her preference to remain at the Hoppers Crossing branch was not able to be accommodated, but this does not mean it was not genuinely considered. Ms Grant and Mr Scukovic took time to understand Mrs Guesdon’s personal circumstances and preferences. They gave due consideration to those matters, and then endeavoured to accommodate them to the extent they were able to do so. It follows that ANZ can be said to have satisfied the requirements contained in sub clause 2.4(i)(iii).

Conclusion

[90] This application requires the Commission to have regard to what sub clause 2.4(i) of the Agreement requires. I have already indicated that I am satisfied that ANZ has complied with the obligation in sub paragraph (i) to consult with Mrs Guesdon. I am also satisfied that it has complied with the requirement in sub paragraph (iii) to give genuine consideration to her personal circumstances and preferences before the decision to relocate was made. The Commission is accordingly now required to come to a final conclusion about the requirement contained in sub paragraph (ii), and to satisfy itself that the proposed relocations do not involve an unreasonable impact on her travel time or costs, taking into account the factors set out in the definition contained in Schedule 5 of the Agreement.

[91] It is clear at the outset that travel by car is the only viable transport option available, and the option of travel by public transport would involve an unacceptable amount of additional travel time.

[92] The second factor requires consideration of the different work locations, and the additional distance from her current work location and home. As indicated already travel to the Melton branch would involve additional travel on each day of 31.6 kilometres. Mrs Guesdon would be required to make this trip on 2 days each week. Travel to the Brimbank branch would involve an additional round-trip of 51.6 kilometres each day, although under the relocation proposal she would only be required to make this trip on one day each fortnight.

[93] These are not manifestly excessive additional travel distances, and there would evidently be many employees who by choice or necessity travel similar or further distances to work each day. However, they clearly represent a significant change from what has been the norm for Mrs Guesdon for more than 22 years. In addition, her age, and the fact that she now suffers from arthritis in both hands, are circumstances that would likely make a significant amount of additional driving more difficult.

[94] The next factor to be taken into account concerns the amount of additional cost involved. It is estimated that an amount of $9.50 would be incurred each week when Mrs Guesdon is working only at the Melton branch, and up to $15.00 per week on each second week when she works the additional shift at the Brimbank branch. There would obviously be some additional vehicle servicing costs associated with the additional travel, however, no evidence was provided in regard to what this amount might be.

[95] These are not massive additional costs, but will clearly have some impact on Mrs Guesdon’s expenditure. As indicated, no accurate estimates were provided about the additional servicing or maintenance costs that might be associated with the additional travel. However, Mrs Guesdon indicated in her witness statement that she drives a Commodore that was manufactured in 2006, and is now more than 12 years old. It is reasonable to assume that the additional travel associated with the relocations could impact significantly on a vehicle of that age.

[96] It is also noted that it was submitted on behalf of Mrs Guesdon that because the evidence indicated that no one from ANZ had attempted to estimate what additional fuel costs would be incurred as a consequence of the relocations, that it had not complied with its obligation to consider the amount of additional cost involved, and the application could be determined on the basis of this failure alone. However, the evidence of Mr Scukovic indicates that other potential cost impacts were considered, such as any possible tolls and car parking fees. It was also indicated that consideration of additional fuel costs was inherent in the considerations of the additional time and distance required to be travelled. I am not satisfied in response that any failures in this regard are sufficient alone to determine the application in favour of Mrs Guesdon.

[97] The final consideration concerns the amount of additional travel time from home to the proposed new work locations. This is estimated to be at least an additional 35 minutes travel time each way, or a total of more than 70 minutes for the daily return journey. However, it is not unreasonable to conclude that these times would often extend during periods of significant traffic congestion. For example, Mrs Guesdon indicated in her evidence that her existing average daily travel time of around 15 minutes could, on occasions, blow out to around 30 minutes because of additional traffic on the road.

[98] Deputy President Sams made reference in this context, in the decision in Ausgrid to the traffic congestion in “…the notoriously bad Sydney CBD and other Sydney environs.” 23 Similar comments can be made about the daily traffic congestion experienced by many Melbourne residents. Mrs Guesdon described taking around 50 minutes to drive to each of the new locations in what she described as light traffic. It is reasonable to assume that she would often experience more congested roads than this, given the travel routes indicated in the evidence, and that her travel times would extend as a consequence.

[99] However, it is also acknowledged again that many employees experience travel times of around one hour from home to work each day, and from work to home again at the end of the day. In this context it can be said that there is nothing unusual in what Mrs Guesdon is now being confronted with.

[100] However, the extended travel times can obviously be viewed differently when contrasted with what Mrs Guesdon has been accustomed to. She has had what might be described on the one hand as the good fortune to work at a branch of the Bank located only 15 minutes from her home, based on the average time taken to travel to work. This situation has existed for more than 22 years. A change, which involves travel times of around one hour each way, is clearly a significant change in this context, particularly given her age and condition. Mrs Guesdon indicated that she may in fact not be able to take on the shift at the Brimbank branch, given the travel involved, meaning she would also suffer a loss of income as a consequence.

[101] In coming to a decision in this matter I have also had regard to the decision of Deputy President Sams in Ausgrid, and to his consideration of what can be considered to be reasonable and unreasonable in terms of changing work locations. As indicated already I am not satisfied that the decision is necessarily ‘on all fours’ with the circumstances involved in the present matter. For example, the Ausgrid employees who were relocated benefited, at least for a period of 6 months, from a travel allowance based on the additional time and distance associated with the relocation. Deputy President Sams also indicated that ultimately each matter is required to be considered based on the particular circumstances involved. However, I have also had regard to his conclusions about what might be considered reasonable and unreasonable in terms of travel times in a contemporary urban environment, and the travel times commonly experienced by other employees when travelling from home to work.

Conclusion

[102] I have had regard to all the circumstances involved in this matter. I am satisfied, in conclusion, that the proposed relocations do involve an unreasonable impact on Mrs Guesdon’s travel time or costs as defined in Schedule 5. In coming to this decision I have had particular regard to:

  the additional travel time involved;

  the additional distances involved;

  the impact of the above factors, given Mrs Guesdon’s age and physical condition and what she has been accustomed to over an extended period of time;

  the additional costs associated with the extra travel;

  the age of her private vehicle; and

  the lack of any other viable public transport option which might alleviate some of the additional travel burdens.

[103] It is also noted that this decision should not be construed as implying any criticism of the ANZ Bank. The evidence indicates instead that it has endeavoured to find other acceptable employment for Mrs Guesdon in circumstances where her long-standing role at the Hoppers Crossing branch was no longer available. It has had regard to her particular personal circumstances as part of this process. However, it was ultimately hampered by what it was able to do by the fact that it was faced in all the circumstances with a limited range of other acceptable options.

[104] It is also emphasised, in conclusion, that this decision is based solely on the particular circumstances involved in this matter, and their particular impact upon Mrs Guesdon, and the outcome should not be construed as creating any form of precedent to be relied on in the future.

al of the Fair Work Commission with member's signature

COMMISSIONER

Appearances:

A Cousner of the Finance Sector Union for the Applicant.

C Gianatti of KHQ Lawyers for the Respondent.

Hearing details:

2018.

Melbourne:

November 27.

Printed by authority of the Commonwealth Government Printer

<PR708624>

 1   AE417217.

 2   Exhibit FSU1 at [7].

 3   Ibid at [21]-[22].

 4   Exhibit ANZ2, attachment DD-1.

 5   Exhibit ANZ4, attachment LS-3.

 6   Ibid at [51].

 7   Ibid at [58].

 8   Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005 at [41].

 9   (2005) 222 CLR 241.

 10   [2017] FWCFB 3005 at [44].

 11   Ibid at [46].

 12   Ibid.

 13   Transcript, PN383.

 14   [2018] FWC 4814 at [60].

 15   Ibid.

 16   Ibid at [62]-[63].

 17   Ibid at [70].

 18   Ibid at [73].

 19   Ibid at [8].

 20   Ibid.

 21   Exhibit FSU1 at [27].

 22   Ibid at [11].

 23   [2018] FWC 4814 at [72].