AG809159 PR906779
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.99 notification of industrial dispute
Textile, Clothing and Footwear Union of Australia
and
Huyck Australia Pty Ltd
(C2001/3185)
HUYCK AUSTRALIA PTY LTD - TCFUA - ENTERPRISE AGREEMENT 2000
[ODN C No. 39137 of 2000]
[Doc T4418 [H1636]]
Various employees |
Textile industry |
VICE PRESIDENT ROSS |
PERTH, 20 JULY 2001 |
Dispute arising under a certified agreement about the introduction of rotating shifts. Managerial prerogative - whether impact on employees is unjust or unreasonable - rotating shifts to be introduced for a six month trial, subject to conditions.
DECISION
Introduction
[1] This decision deals with a dispute between the Textile, Clothing and Footwear Union of Australia (the TCFUA) and Huyck Australia Pty Ltd (Huyck) concerning the proposed introduction of new shift arrangements in the Needling and Finishing areas of Huyck's Geelong plant. The plant produces highly engineered textiles for use on paper production machines.
[2] The TCFUA and Huyck are party to the Huyck Australia Pty Ltd - TCFUA - Enterprise Agreement 2000 (the Huyck Agreement). The Huyck Agreement was certified on 23 November 2000 and has a nominal expiry date of 1 July 2002.1 Clause 6 of the Agreement deals with the resolution of disputes in the following terms:
"6. DISPUTES / GRIEVANCE PROCEDURE
There shall be effective means of consultation between the company, its employees and the Union on all matters of mutual interest and concern. Particular attention shall be given to both the informal and formal means of consultation between management, supervisor, employees and employees' representatives.
An employee who has a request or complaint concerning any matter directly connected with the employment or job conditions shall either:
(a) I) discuss the matter with his/her supervisor, or
ii) request his/her Shop Steward to discuss the matter on his/her behalf.
(b) Where the employee or the Shop Steward has not received satisfaction, the employee or Shop Steward shall discuss the request or complaint with the Department Manager.
(c) If the matter remains unresolved between the employee, the employee representative and the Department Manager, it shall be referred to the next Line Manager.
(d) If the matter is not settled between the employee and/or the Shop Steward and the next Line Manager, the matter shall be referred to the Secretary of the Union and a meeting shall be arranged between the company and if the company so desires the Australian Industry Group, and the Union, and a conference shall take place as soon as practicable.
(e) If the matter remains unresolved either party may refer the matter to the Australian Industrial Relations Commission for conciliation or arbitration.
Where and while the above procedures are being followed work shall continue normally. No party shall be prejudiced as to the final settlement by the continuance of work in accordance with these sub-clauses."
[3] The issue in dispute concerns Huyck's right to introduce rotating shift work in the Needling and Finishing areas. Prior to February 2001 work in the Needling area was performed on a two shift operation, being a fixed day and afternoon shift. Four operators and one supervisor worked on day shift and three operators and a supervisor worked on afternoon shift. In February this year a decision was made to introduce a night shift consisting of three operators. One long serving employee agreed to transfer from afternoon shift to night shift. Three new employees were engaged - two to work night shift and the other to fill the vacant afternoon shift position.
[4] Given the increase in the number of persons employed in the Needling area (from seven to ten) the company was expecting a 25 per cent increase in production capacity. In practice this increase did not eventuate and productivity declined significantly.
[5] The Finishing area is split into two parts - G1 and G3; and G2. At present twelve people work in the G1 and G3 area in four teams. These employees work twelve hour fixed shifts rostered over seven days. The twelve hour shift arrangement was introduced on a trial basis in October 2000.2 Previously nine employees worked in the area on a three by eight hour rotating shift arrangement rostered over five days. The company expected that the additional employees and the new roster arrangement would increase production capacity by 28 per cent. This has not eventuated, indeed the output from the finishing area has declined.
[6] On 10 May 2001 Mr Leigh Stephens, Huyck's Manufacturing Manager, held a meeting with the employees in the Needling area and advised them of the company's intention to change their shift arrangements. A memorandum distributed to employees at that meeting states:
"The current efficiency levels and quality in Needling are poor.
It is necessary to change the Shift Arrangements in the Needling Department from 3, 8 hour fixed shifts to 3, 8 hour rotating shifts to provide all shifts equal access to training and supervision.
The new arrangements will commence from midnight Sunday May 20th.
Exact details of the rotation will be finalised in the next few days."3
[7] The TCFUA was formally advised of the company's proposal on 10 May 2001.4
[8] On 15 May 2001, Mr Stephens advised the G1 and G3 operators in the Finishing area of the company's intention to introduce rotating shifts. In his memorandum to the relevant employees Mr Stephens says:
"Since the advent of 2 fixed 12-hour shifts in the Finishing area, the productivity levels have dropped significantly.
It is necessary to change the Shift Arrangements in the Finishing Department from 2; 12 hour fixed shifts to 2, 12 hour rotating shifts to provide all shifts equal access to training and supervision.
The new arrangement will commence from midnight Sunday June 3rd.
Exact details of the rotation will be finalised in the next few days."5
[9] The following day the TCFUA was formally advised of the proposed change.6
[10] The proposed changes in shift arrangements were raised by the union and its shop stewards at a meeting of the Huyck Consultative Committee on or about 17 May 2001. No agreement was reached at that meeting. Mr Beard, Huyck's Managing Director, subsequently met with the company's two shop stewards - Messrs Corker and Allan. In his statement Mr Corker sets out his recollection of that meeting:
"John Beard to us that there was a problem in Needling and a cash flow problem in respect to the amount of Finished work which was being sent out. He also said that the net two months were very important in this regard.[sic]" 7
[11] On 22 May 2001 Ms Jovanovska, the TCFUA organiser with responsibility for the Huyck plant, held a meeting of TCFUA members in the Needling and Finishing areas. At that meeting the members concerned expressed their unanimous opposition to the introduction of compulsory rotating shifts. The members also called on the TCFUA to organise a meeting with the company and the Australian Industry Group (AIG) about the issue.
[12] A meeting was subsequently held between representatives of the TCFUA, AIG and Huyck. The meeting did not result in a resolution of the issues in dispute, although Mr Allan - who attended the meeting - recalled that there was "a level of agreement that training was needed in the Needling area in particular because it appeared that some of the workers had not been kept up to date with the changes in the area."8
[13] As the issues surrounding the company's proposed change to shift arrangements remained unresolved the TCFUA referred the matter to the Commission. Due to the unavailability of the TCFUA representative and the subsequent unavailability of the Commission, the dispute was not able to be heard until 2 July 2001. Discussions with the parties on that day failed to resolve the dispute and the matter was listed for arbitration on 12 July 2001. On that day both parties presented their evidentiary case at the company's plant in Geelong. The parties completed their submissions the following day.
[14] Neither party raised any jurisdictional impediment to the Commission's determination of the issue in dispute.
The Submissions
[15] The TCFUA seeks an order prohibiting the introduction of rotating shifts in the Needling and Finishing areas of Huyck's operations. In the alternative it is argued that the Commission should direct the parties to engage in meaningful discussions as to the means (other than rotating shifts) by which productivity and quality might be improved. In both cases the effect of what the TCFUA seeks would be the same, Huyck would be prohibited from introducing rotating shifts in its Needling and Finishing areas.
[16] There are three broad limbs to the TCFUA's argument in support of the order sought:
_ the legal context in which the dispute arises; in this regard reference was made to relevant sections of the Workplace Relations Act 1996 (the WR Act); the ILO Convention concerning Equal Opportunities and Equal Treatment for Men and Women with Family Responsibilities (the Family Responsibilities Convention); clauses 3, 6, 7, 8, 15, 21 and 30 of the Huyck Agreement; and Schedule C and clauses 20(d) and (g), and 47 of the Textile Industry Award 1994 (the 1994 Award).
_ the failure of the company to properly consider alternatives to the introduction of rotating shifts; and
_ the substantial adverse impact which rotating shifts would have on the health, lifestyle and family responsibilities of the employees affected.
[17] I deal with each of these matters later in this decision.
[18] Huyck argues that it has the right to manage its business in the manner in which it considers appropriate. Such a right is said to derive from the contract of employment between Huyck and the relevant employees, and from the terms of clause 20(g) of the 1994 Award. Huyck seeks the rejection of the TCFUA's claim and a statement to the effect that it has the right to introduce rotating shifts in the Needling and Finishing departments.
[19] The parties both acknowledge that the matter before the Commission requires a decision as between competing considerations - the right of the company to manage its business on the one hand, and the interests of the employees on the other.
[20] I propose to deal with the relevant legal context first, then consider the evidence in relation to productivity and quality and finally to deal with the evidence from the employees.
The Legal Context
[21] I accept the TCFUA's proposition to the effect that in exercising its powers the Commission is obliged to seek to prevent and eliminate discrimination on certain prescribed grounds (s.3(j)) and to assist workers to reconcile their employment and family responsibilities (s.3(i), s.93A and the Family Responsibility Convention). But these are not the only matters to which the Commission is to have regard. The objects of the WR Act also provide for the promotion of "international competitiveness through higher productivity" (s.3(a)).
[22] Further, s.143(1B)(c) provides that the Commission must, if it considers it appropriate, ensure that a decision to make an award or order affecting an award:
"(c) does not contain provisions that have the effect of restricting or hindering productivity, having regard to fairness to employees."
[23] In my view the Commission's task is to strike an appropriate balance between the interests of the employer and the relevant employees.
[24] In addition to the statutory context, the TCFUA relies on the terms of the Huyck Agreement. Four particular aspects are relied on, namely that the agreement:
_ states that employees earnings will not be reduced (clauses 8 and 15);
_ proscribes discrimination on the basis of parental status and embodies a commitment to "ensuring that employees are treated equally in terms of access to opportunities in, selection, promotion, training and remuneration" (clause 21); and
_ incorporates the 1994 Award and that award deals with rotating shifts (in clause 20) and consultation (in Schedule C and clause 47).
[25] The terms of the Huyck Agreement are obviously an important consideration in the determination of the matter in dispute. It is clear that the company's concerns about declining productivity and quality, and its proposed response to that issue (i.e. the introduction of rotating shifts) should have been the subject of consultation with the TCFUA and the Consultative Committee.
[26] Clause 7 of the Huyck Agreement provides that the terms of the 1994 Award as at 30 June 1994 form part of the Agreement and constitute the minimum terms and conditions of employment which apply to all employees employed by Huyck under the Huyck Agreement. Schedule C of the 1994 Award deals with consultative committees. Clause (c) of that schedule sets out the particular matters which are to form the basis of the work of such committees, including:
"(iii) To consider the introduction of new or revised work methods/work arrangements . . .
(ix) To consider other matters raised by consultative committee members which impact on employees or which contribute to the improved operation and efficiency of the enterprise."
[27] Clause 30 of the Huyck Agreement also deals with consultation:
"The consultative committee will be advised of and record any significant changes of production, program, organisation, structure or technology that are likely too [sic] have significant effects on employees.
The Company gives a commitment that when it proposes to initiate major changes that will have significant effect on the work place, they will consult with the union representatives and the consultative committee prior to the introduction of the change."
[28] In my view the introduction of rotating shifts in the Needling and Finishing areas are "major changes that will have significant effect on the work place". Accordingly, the company has an obligation to consult with the union representatives and the consultative committee prior to the introduction of the change. It is apparent from the evidence of the relevant TCFUA organiser, Ms Jovanovska,9 and the TCFUA's shop stewards at Huyck, Messrs Corker and Allan,10 that no such consultation has taken place, or at least no meaningful consultation.
[29] Mr Stephens, Huyck's Manufacturing Manager, has discussed the proposed new shift arrangements with each of the employees affected. The company argued that such discussions met its consultative obligations. In this context it was submitted that the Huyck Agreement makes reference to "informal" consultation.
[30] While direct discussions with the employees affected constitutes an important part of the consultative process, they do not of themselves satisfy the company's obligations. The reference in the Huyck Agreement to "informal" consultation is in clause 6. The relevant sentence is in the following terms:
"Particular attention shall be given to both the informal and formal means of consultation between management, supervisor, employees and employees' representatives."
[31] In my view the reference in clause 6 to informal means of consultation does not assist the company. It is apparent from the phrase "both the informal and the formal means of consultation" that informal consultation is not seen as an acceptable alternative to formal means of consultation. The use of the word "both" and the conjunctive "and" make this clear.
[32] The approach of Mr Stephens in discussing the new arrangements with each of the employees affected was no doubt well-intentioned, but as he conceded in his evidence, with the benefit of hindsight it would have been better if he had consulted through the formal mechanisms.
[33] I find that the company has failed to properly consult with the TCFUA's representatives and the consultative committee about the proposed introduction of rotating shifts in the Needling and Finishing areas.
[34] The second aspect of the Huyck Agreement relied upon by the TCFUA relates to those provisions which protect employee earnings. In this regard clause 8 relevantly states:
"The earnings of any worker will not be reduced as a consequence of the making of this Agreement."
[35] Further, clause 15 provides:
"No employee will be disadvantaged or suffer a reduction in pay rates as a result of their participation in training."
[36] Clause 39.9 of the Textile Industry Award 2000 deals with payment for shift work:
"39.9.1 An employer must pay shift workers, other than day shift workers, in addition to their ordinary rate of pay, a penalty loading of 15% of the weekly rate for Skill Level 2, per shift worked.
39.9.2 An employer must pay employees engaged on a permanent night shift, in addition to their ordinary rate of pay, a penalty loading of 30% of the weekly rate for Skill Level 2 per shift worked.
39.9.3 Shift penalties must be calculated to the nearest cent."
[37] The introduction of rotating shifts would mean that employees currently receiving a night shift penalty will suffer a reduction in their earnings. Employees currently on a day shift (and hence not in receipt of a penalty loading) will increase their earnings.
[38] The TCFUA contends that the reduction in the earnings of employees currently receiving a night shift penalty is contrary to the Huyck Agreement. I do not agree. Shift penalties are intended to compensate employees for the disabilities associated with working the shift in question. The award provision recognises this fact by providing a penalty differential between permanent night shift (at 30 per cent) and other shifts. If there is a reduction in the level of the disability then it follows that there should be a consequent reduction in the penalty payment.
[39] Further, I do not think that the Huyck Agreement clauses relied on by the TCFUA are applicable to the circumstances of this case. Clause 8 is directed at reduced earnings "as a consequence of the making of" the Huyck Agreement. The reductions in earnings occasioned by the company's proposed alteration of the shift arrangements are not a consequence of the making of the Huyck Agreement. They are a consequence of the fact that the employees concerned will no longer be encountering the disabilities associated with permanent night shift.
[40] Nor does clause 15 assist the TCFUA. Here the TCFUA argues that the change in shift pattern is intended to provide those employees on afternoon and night shift with access to training. On this basis it is contended that the consequent reduction in earnings is occasioned by the employee's participation in training. In my view this argument is misconceived. There are two flaws in the TCFUA's proposition. The first is that proposed shift change is not only directed at providing employees with greater access to training, it is also intended to increase employee exposure to management and quality assurance personnel. In this regard I note that if the company did not act to increase training opportunities for permanent night shift workers then it could arguably be in breach of another part of clause 15 which provides that all employees are to have equal access to training and skill development.
[41] The second weakness in the TCFUA's argument is that the reduction in earnings is not "a result of their participation in training", it is a result of the lower level of disabilities encountered as a consequence of the new shift arrangements.
[42] The third point advanced by the TCFUA was, in essence, that the company's proposal was discriminatory. I had some difficulty following the TCFUA's argument in this regard. The central point seemed to be that as a consequence of either family responsibilities or medical reasons there were a number of employees who would not be able to move to rotating shifts. As a consequence such employees would be denied access to additional training opportunities as these would only be available on day shift. There is a certain circularity to the TCFUA's contention. The employees concerned do not wish to move to rotating shifts, yet if the company accedes to the expressed wishes of the employees it will be denying them access to training. It seems to be a case of damned if you do and damned if you don't. I am not persuaded by the TCFUA's contentions on this issue. The company's proposal would increase the opportunity for permanent night and afternoon shift employees to participate in training. If some employees elect (with the company's concurrence) to remain on their current shift arrangements they have not been discriminated against, rather they have chosen not to take up the opportunity provided.
[43] The TCFUA's final point about the Huyck Agreement flows from the fact that the Huyck Agreement incorporates the 1994 Award. In this context the TCFUA relied on those provisions of the 1994 Award dealing with shift work and consultation. In relation to shift work the TCFUA relied on clause 20(d) and (g) of the 1994 Award. These provisions are in the following terms:
"(d) As far as practicable, employees shall work shifts in rotation. . . .
(g) An employee who is required to change from one shift to another without two working days notice of such a change of shifts shall be paid $13.10 extra as compensation, but this shall not apply during any period where power restrictions are operating."
[44] The TCFUA contended that clause 20(d) required an assessment of the practicability of rotating shifts. Such an assessment was said to depend on all of the circumstances in a particular case, including the circumstances of the individual employees affected.
[45] Huyck argued that a different emphasis should be placed on the assessment of practicability in the context of clause 20(d). The company contended that the proper construction of clause 20(d) was that rotating shifts would be utilised if practicable having regard to the operational requirements of the employer's business. However it was acknowledged that in making such an assessment the employer was obliged to act reasonably and take into account the family responsibilities of the employees affected.
[46] The proper construction of clause 20(d) is not without difficulty. Unfortunately the parties were not able to shed any light on the origins of the clause or the reason for its introduction.
[47] In my view the language used in clause 20(d) reflects a clear preference for working shifts in rotation. The reason for such a preference is not difficult to discern. During the hearing of this matter Mr Dalton, appearing on behalf of Huyck, tendered some material dealing with shift work. This material generally emphasised the desirability of keeping consecutive night shifts to a minimum where possible. For example, Exhibit H9, `Fourteen Rules for a Good Shift System' states:
"There should be no permanent night shift unless the type of work, or important factors in the outside lives of the shift workers, make it essential or desirable."11
[48] The working of rotating shifts is subject to the introductory words of the clause - "As far as practicable . . .". In my view an assessment of the practicability of working shifts in rotation is not one dimensional. It is not limited to examining the issue from the perspective of only one of the parties - whether it is the employer or the employees. Practicability requires an assessment of all relevant considerations, including the operational requirements of the employer and the impact of rotating shifts on the employees.
[49] Huyck relied on clause 20(g) to support its contention that it had a right to introduce rotating shifts. Clause 20(g) provides that employees who are required to alter their shifts without two working days notice are entitled to an extra payment. It is argued that it is implicit in such a provision that management has the right to introduce rotating shifts on two working days notice.
[50] I do not agree. In my view clause 20(g) is directed to the circumstances where an employee is required to change from one shift to another. It says nothing about changing the shift roster arrangements of all employees in a particular work area. In this regard I note that clause 20(g) is expressed in different terms to clauses in other awards which deal with changes in shift rosters. For example clause 29 of The Hospitality Industry - Accommodation, Hotels, Resorts and Gaming Award 1998 states:
"29. ROSTER
29.1 A roster for full-time and regular part-time employees showing normal starting and finishing times and the name of each employee shall be prepared by the employer and shall be posted in a conspicuous place accessible to the employees concerned.
29.2 The roster shall be alterable by mutual consent at any time or by amendment of the roster on seven days notice. Where practicable two weeks notice of rostered day or days off should be given provided that the days off may be changed by mutual consent or through sickness or other cause over which the employer has no control."
[51] Huyck also contended that it had a contractual right to introduce rotating shifts pursuant to a term of the contract of employment with each of the affected employees. On commencing employment with Huyck, employees are required to sign a document titled "Employment Ticket". The document relevantly provides:
"I, the undersigned agree to the terms and conditions of employment set out in this form and will abide by the RULES and REGULATIONS in effect, and that my continuing in the employ of the HUYCK AUSTRALIA PTY. LIMITED, after any amendments and additions thereto have been posted in the Factory, will constitute my acceptance of such amendments or conditions.
I declare and warrant that answers made by me and from which this record is complied [sic] are correct and true in every particular.
I hereby undertake to work overtime and/or shift work as and when required, and to join the appropriate union."12
[52] All but two of the TCFUA's witnesses in the proceedings acknowledged signing this document. Each of the employees of the company who were cross-examined stated that the clause was not explained to them in any detail at the time of signing, and that they didn't realise or believe that it referred to rotating shifts. For those employees who were not called to give oral evidence, the company stipulated that the witnesses would provide similar answers to those questions.
[53] I am not satisfied that the act of signing the "Employment Ticket" constituted an unconditional agreement on the part of the relevant employees to work rotating shifts. Three matters lead me to that conclusion:
> the agreement is to undertake "shift work", no mention is made of the obligation to work rotating shifts; and
> recently the company has sought a specific commitment from new employees as to their preparedness to work rotating shifts. If the "Employment Ticket" contemplated such shift arrangements then there would be no need for such a specific commitment.
[54] But even if I was wrong about the effect of the "Employment Ticket" an employee is only obliged to obey orders which are both lawful and reasonable.13
[55] The company's case is essentially that it is management's prerogative to run and organise its business in the way it considers appropriate. As noted earlier Huyck's objection to the TCFUA's proposed order is not based on any absence of jurisdiction. In that regard I note that managerial prerogative does not provide a jurisdictional barrier to Commission intervention. Indeed every Commission decision may be said to impact to some extent on the manner in which employers may choose to run their business. In Re: Cram; Ex parte NSW Colliery Proprietors' Association Ltd14 the High Court rejected the suggestion that managerial decisions stand wholly outside the area of industrial disputes. The Court went on to state at page 136 - 137:
". . . the objection voiced by O'Connor J in Clancy to the regulation and control of business enterprises by industrial tribunals is not a matter that goes to the jurisdiction of the tribunals. Rather it is an argument why an industrial tribunal should exercise caution before it makes an award in settlement of a dispute where that award amounts to a substantial interference with the autonomy of management to decide how the business enterprise shall be efficiently conducted."
[56] In the XPT Case a Full Bench of the former Conciliation and Arbitration Commission dealt with the tribunal's approach to the "right of an employee to manage his own business" in the following terms:
"It seems to us that the proper test to be applied and which has been applied for many years by the Commission is for the Commission to examine all the facts and not to interfere with the right of the employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable. The test of injustice or unreasonableness would embrace matters of safety and health because a requirement by an employer for an employee to perform work which was unsafe or might damage the health of the employee would be both unjust and unreasonable."
[57] To the list of matters to be considered in the context of the test of injustice or unreasonableness, I would add the impact of the employer's decision on an employee's family responsibilities and any discriminatory effect of such a decision. In my view these matters are clearly relevant considerations in the context of the current statutory framework.
[58] A considerable part of the company's case went to the productivity and quality issues in the Needling and Finishing areas. I now turn to consider that material.
The Productivity/Quality Problem
[59] The Needling and Finishing areas are very important aspects of Huyck's manufacturing process. They are at the end of the production pipeline. Poor productivity in these areas can lead to a backlog in the processing of orders and a build up in partly finished products. Product rejects at this late stage in the production process are expensive and the rectification of defects is often time consuming.
[60] The introduction of new machinery has led to an increase in overall plant capacity with a consequent increase in the work performed by the Needling and Finishing areas. It is this increase which led the company to engage additional employees. But these changes have not had the desired result.
[61] Last year the Needling area processed some 18 - 20 tonnes of product per month with seven employees on a two shift operation. The employees worked about 6 - 8 hours overtime per week. This year, with ten employees on a three shift operation only 15 - 16 tonnes per month was processed.
[62] The principal means of measuring productivity is "kg of finished product per man hour" (kg/man hr). On this measurement monthly productivity is lower this year than at the same time last year.
CHART 115
[63] Chart 1 shows that since February this year productivity has been trending downwards and is now significantly lower than at the same time last year.
[64] Productivity is also measured by the amount of time taken to perform certain tasks as a percentage of the standard time designated for that task. This measurement also shows less than optimal productivity and the statistics show considerable diversity between shifts.
CHART 216
[65] I note that this measure of productivity - actual time versus standard time - has some limitations. Standard times have not been determined for all tasks performed and current standard times may not fairly reflect the time a task would be expected to take. But despite these limitations the data is useful because it shows a clear productivity difference between shifts. Day shift is more productive than night shift and both are more productive than afternoon shift.
[66] In terms of quality performance, product rejects and defects are also more prevalent on the afternoon and night shift than on day shift, as shown by Table 1 below.
TABLE 1
|
Needling and Finishing Areas Product Rejects and Defects 2001 to date by shift | ||
Shift |
Rejects |
Defects |
Day |
4 |
2 |
Afternoon |
8 |
4 |
Night |
6 |
6 |
[67] Dr Brown, the QA and Development Manager at Huyck, dealt with these statistics in his evidence. He said:
"The reject rate for the current year is 100% higher on afternoon shift and 50% higher on night shift than on day shift. Afternoon and night shifts have each contributed a disproportionate amount to the total number of rejects for the year to date, 2001. . . .
The rate of serious defects requiring investigation for the current year is 100% higher on afternoon shift and 200% higher on night shift than on day shift. Afternoon and night shifts each contributing a disproportionate amount to the total number of serious defects requiring investigation for the year to date, 2001.
To date, good progress has been made in the attempt to improve the standard of quality in relation to our products but as in [sic] borne out by the statistics, the best performance is from day shift. In order to ensure that products for critical customers achieve the desired quality standard, it has been necessary to schedule the processing of these products to day shift wherever possible.
Not only is it imperative that we improve the standard of quality in relation to our products, but it is equally important that the improvement is across all three shifts. This can only be achieved if all operators on all shifts have regular and ongoing instruction & feedback with respect to the required level of quality as demanded by our customers. Of equal importance is that all operators on all shifts have access to training in both new and existing processes by staff based on day shift, on an ongoing basis. The most effective means by which to achieve this is to have rotating shifts in these key manufacturing areas.
At present, instruction & feedback with respect to the required level of quality as demanded by our customers and training in both new and existing processes is provided to operators on day shift both in the written form and through one to one contact where required or sought by the operators themselves. On shifts other than day shift, such instruction, feedback and training can only be provided in the written form when the appropriate member of staff is not present on the shift."17
[68] The TCFUA contended that there were a number of factors which contributed to the observed deterioration in productivity and quality. It was said that these factors would not be addressed by the introduction of rotating shifts. The factors identified by the TCFUA were:
_ poor machinery maintenance and inadequate numbers of maintenance personnel. These deficiencies had led to increased machinery down time, especially on the night shift;
_ quality expectations had increased over time and as a consequence it took longer to perform certain tasks;
_ the employees who had only recently commenced work could not be expected to operate at the same level as employees with greater service; and
_ the absence of supervision on the night shift.
[69] In relation to the first point, I accept that there is an absence of formalised quality assurance training and this could well have contributed to the level of product rejects and defects. But if this was the only reason for poor quality outcomes then we would expect product rejects and defects to be consistent across the shifts - but this is not the case. Afternoon and night shift have a greater incidence of quality problems than day shift.
[70] There is conflict in the evidence regarding the extent of machinery down time, particularly on the night shift. Mr Laity's evidence supports the union's contentions, he says:
"One of the real day to day issues on the floor is the poor level of maintenance. There are times when a machine needs maintenance and that there is an unacceptable delay in finding someone who can fix it. The normal maintenance procedure is that the mechanics won't as a general rule stop the looms to fix the problem. They try to keep them running as much as possible so that production continues. The great majority of maintenance is performed on the day shift. On night shift there is basically one fitter available for the whole of the factory. Huyck has the same amount of fitters that it had 13 years ago but the factory has almost tripled in size since then. I believe poor maintenance leads to, and contributes to an increased amount of poor quality product."18
[71] Mr Beard's evidence was to the effect that Huyck employed an adequate number of maintenance personnel and, if anything, the requirement had declined in recent years as the company had installed more modern equipment which required less maintenance. In relation to machinery down time, Mr Stephens' evidence is relevant, he says:
"I have examined the Maintenance records in the Needling and also Finishing areas for the last four months.
In that time, lost time due to maintenance has been as follows.
Finishing Dayshift - 45 hours
Night shift - 50 hours
Total available hours during that time being - 2424 hours
That is Dayshift - 3.8%
Night shift - 4.1%
Needling Dayshift - 53 hours
Afternoon shift - 32 hours
Night shift - 18 hours
Total available hours during that time being - 1728 hours
That is Dayshift - 9.2%
Afternoon shift - 5.5%
Night shift - 3.1%
This indicates that the difference in time lost due to maintenance between day, afternoon and night shifts is insignificant."19
[72] I prefer the evidence of Messrs Beard and Stephens on this point. Mr Laity's evidence was general in nature and no specific instances were cited in support of his opinion. Mr Stephens' conclusions were consistent with his review of the relevant maintenance records over the last four months. I am not persuaded that poor maintenance and machine down-time explain the observed deterioration in productivity and quality in the Needling and Finishing areas.
[73] The next point advanced by the TCFUA was that quality expectations had increased over time and as a consequence it took longer to perform certain tasks. I accept that the company's quality standards have improved over time but there is insufficient evidence to support the conclusion contended for by the TCFUA. In particular there is no evidence to suggest that there has been a change in expectations in the last six months such as to explain the decline in productivity shown in Chart 1.
[74] The fourth point suggests that the company's current problems are to be expected given that it has recently engaged three new employees. I accept that new employees will take some time to learn how to efficiently undertake the tasks assigned to them - hence they will initially be less productive than more experienced employees. But this does not explain the fact that there has been an absolute fall in product processed per month despite an increase in the number of persons employed. Nor does it explain the poor productivity on afternoon shift - only one of the three new employees works afternoon shift, the other two work night shift.
[75] The last point relates to the absence of supervision on night shift. This factor may provide a partial explanation for the low productivity on night shift, but it does not explain the fact that productivity on the afternoon shift is lower than on day shift.
[76] I now turn to consider the evidence from the TCFUA's witnesses as to the substantial adverse impact the introduction of rotating shifts would have on the health, lifestyle and family responsibilities of the relevant employees.
TCFUA Witnesses
[77] The TCFUA tendered witness statements from some 23 Huyck employees - nine from the Needling area,20 twelve from Finishing,21 and the two shop stewards, Messrs Corker and Allan.
[78] I have already dealt with the evidence of the shop stewards. The evidence of the other Huyck employees is briefly summarised below.
Geoffrey Ryder22 is 35 years of age and commenced employment with Huyck on or about 5 May 1986. He has worked in various departments in Huyck and is currently employed as an Assistant Foreman in the Needling section on a permanent night shift. Mr Ryder has previously worked rotating shifts with Huyck, though he was unable to recall when he did so. He states that the last time he worked on such shifts "the effect on me was terrible. Over time I became very disorientated and couldn't answer basic questions to my supervisor Ray Coles, such as, what date or day of the week it was, how many days I had left or what shift I was actually meant to be on." He transferred to permanent night shift shortly after this incident.
He also believes it would affect his ability to adequately care for both his parents with whom he lives and to perform maintenance tasks around the house. In relation to the last point Mr Ryder conceded that rotating shifts probably wouldn't impact on his ability to perform maintenance tasks as he mainly did them on the weekend. His father has a "serious heart condition" and his mother "a hearing deficiency." He states that "if the rotating shifts are introduced I would have to reconsider my future with the company."
A letter from Mr Ryder's doctor is attached to his statement. In it Dr Pye says:
"Geoffrey Ryder is an employee at Huyck. Unfortunately Geoff suffers increasing sleep deprivation and subsequent anxiety when he is rotating his shifts from night to afternoon shifts. I have seen Geoff about this problem before and it is a real management problem.
Accordingly I am hopeful you could arrange on medical grounds that Geoff be replaced on a regular night shift so that his circadian rhythm is not impaired.
If you have any concerns about your decision, could you please give me a ring."23
Nicholas Farrington24 is 35 years of age and commenced employment with Huyck on or about 28 August 1984. He has worked in the Formex/Weaving section and is currently employed in the Needling department, as the Second In Charge Shift Foreman, on a fixed afternoon shift. Mr Farrington has previously worked rotating shifts with Huck and found that "shift rotation was shocking. It made me exhausted, cranky and sleep deprived."
Mr Farrington is married and has three children, and says that: "Although my wife has primarily [sic] responsibility for caring for our children, I provide care and assistance as required, particularly during school holidays." He suffers from "chronic migraines which are precipitated by stress and sleep deprivation" and has attached a doctors statement to that effect. He has already been transferred from the night shift to the day shift as a direct result of this condition. He also has "no, or very little, accrued sick leave entitlement." He indicates that as shift rotation is likely to "increase the frequency and severity of my migraines" this will cause financial hardship, in that he will have to take more sick leave, and as sick leave without pay. Mr Farrington objects to the introduction of rotating shifts on this basis, and notes that "the thought of having to work rotating shift is causing me much anxiety because I believe it will increase the frequency and severity of my migraines and potentially expose [me] to another stroke."
The letter from Dr Lindquist which is attached to Mr Farrington's statement is in the following terms:
"Nick Farrington has attended this Surgery on a regular basis over the past 20 years.
He suffers from chronic recurrent migraines, which are precipitated by stress and sleep deprivation. I therefore feel that he would be prone to an increased frequency of migraines if his roster has changed to a rotating shift.
Could you please take Nick's medical history into consideration when planning any changes of roster?"
Allan Innes25 is 52 years of age and commenced employment with Huyck on 10 July 2000, in response to an advertisement for a "day shift position". He is currently employed in the Needling department on a day shift. He has previously worked rotating shifts (though not with Huyck) some fourteen years ago. Mr Innes has a "thyroid condition" which requires him to take hormone replacement medication every day in order to control the symptoms of this condition. One of the symptoms of his condition is that he tires very easily. Mr Innes says that "Having insufficient sleep and irregular hours makes my tiredness worse", and he includes a doctors statement to the effect that he is not fit for rotating shifts. Mr Innes objects to the introduction of rotating shifts on this basis and notes that if such shifts are introduced he "would be forced to leave my employment with Huyck because of the detrimental impact it would have on my thyroid condition and as a consequence, my general health and well being." Mr Innes did not advise Huyck of his thyroid condition prior to his employment. He has found management to be "very accommodating" with respect to his condition.
The correspondence from Mr Innes' doctor, Dr Gunther, states that he "is fit to work regular shifts but not fit for rotating shifts. He suffers from thyroid problems and these would be exacerbated by irregular hours."26
Jamie Day27 is 22 years of age and commenced employment with Huyck on or about 19 October 1998. He has previously worked in the Shipping Section and is currently employed in the Finishing area on a fixed day shift. Mr Day has previously worked on a rotating day shift and says that "I absolutely hated working the rotating shift. I suffered severe insomnia and depression when I was working these shifts." Mr Day lives at home with his parents and shares the responsibility of care for his father, who recently had a heart attack, with the rest of his family. He objects to the introduction of rotating shifts on the grounds both of personal health and because of the requirement to care for his father. The note from Dr McKew attached to Mr Day's statement says:
"This worker has attended here for some years and has noted becoming unwell with severe insomnia, depression and malaise whilst on rotating shifts last year. It would be better to avoid rotating shifts for this man."28
Murray Warren29 is 23 years of age and commenced employment at Huyck on or about 16 April 1999. He has worked in several sections in Huyck and is currently employed in the Needling department, as Second in Charge, on a permanent day shift. Mr Warren states that he is very close to his grandmother, who requires "a serious bypass operation" very soon and he is anxious to be able to assist in her care. He states that he had arranged to prepare meals for her after he came home from work, but that "if the company introduces the rotating shift for the Needling section this will affect my capacity to provide the care to my grandmother in a consistent and reliable way." He conceded that if rotating shifts were introduced he could still care for his grandmother but not to the extent he would wish. He is also concerned that he would have to break his contract with Queenscliff Football Club to play each weekend and train two nights per week.
Ben Towers30 is 25 years of age and commenced employment with Huyck on or about 9 February 2000. He has previously worked in the Needling area and is currently employed in the Finishing area on a permanent day shift. He has not worked rotating shifts previously at Huyck. Mr Towers does not currently have a drivers license and his partner drives him to work every day, and he gets a lift home with another employee after work. He says that he and his partner are "seriously considering starting a family soon." He objects to the introduction of rotating shifts, because "if we are successful in having children rotating shifts would interrupt our family life and make it more difficult to share in the caring of those children" and because "it will make it very difficult for me to travel to work because I don't have a license."
Mr Towers has not made any inquiries about the availability of public transport from his home to work.
John Laity31 is 36 years of age and commenced employment with Huyck on or about 18 July 1988. He has previously worked for 3 months in the Shipping area and 3 months in the Needling area. He is currently employed in the Finishing area on a fixed day shift. He is also responsible for training other employees. He has worked on rotating shifts at Huyck previously and believes that it had "a dramatic effect on my relationship and my health. It caused me to suffer from chronic lack of sleep and good quality sleep, it affected my concentration and caused me to become irritable and aggressive. It caused major problems in my relationship." Mr Laity has attended his doctor in relation to these problems and has attached a note from Dr Thorpe which says:
"This is to certify that John Laity is suffering from work related stress that is interfering significantly with his sleep, relationships and general wellbeing.
He symptoms have improved since he has stopped rotating shift work.
I'm sure he would benefit from discussion with you to try and arrange and alternative to these rotating shifts." [sic]32
Mr Laity also objects to the introduction of rotating shifts because he and his partner "have discussed seriously the possibility of starting a family" and he feels the rotating shifts would have a detrimental effect on any child's upbringing.
Richard Anson33 is 20 years of age and commenced employment at Huyck on or about 19 July 1999. He was employed intermittently, as a casual, for approximately 18 months before being made permanent. He is currently employed in the Needling department on a fixed permanent day shift. He has discussed Huyck's proposal to introduce rotating shifts with his partner and they "are both very unhappy and anxious about the situation. We are both concerned about the possibility that Stacey would be alone in the house at night if I had to work . . . a rotating roster." Mr Anson also notes that he plays football with the Eastern Suburbs Football Club. He objects to the introduction of rotating shifts on this basis and notes that "If I was forced to work rotating shifts, I think my life would become very unbalanced . . . If it is introduced and the impact on my relationship with my partner and I was too great, then I would have to reconsider my position with Huyck."
It was apparent from his evidence that Mr Anson was uncertain about what impact rotating shifts would have on his personal life.
Brendon Stanley34 is 30 years of age and commenced employment with Huyck in or around April 2001. He has worked a few days in the Finishing area and is currently employed in Needling on a fixed day shift. Mr Stanley has not worked rotating shifts before and would prefer not to work rotating shift on the basis that he doesn't "see why it is necessary, and as far as I can see not one worker in the section supports its introduction."
Craig Helmore35 commenced employment with Huyck on or about 7 March 1990. He is currently employed in the Finishing Department on fixed permanent night shift. Prior to October 2000 he worked rotating shifts which he describes as "by far . . . the worst shift of all." Mr Helmore objects to the introduction of twelve hour rotating shifts because of his family responsibilities and his role as the joint carer of his children. He says:
" I am married an have two young children, Caitlin [aged 7 years] and Mitchel [aged 6 years]. Prior to October 2000 the rotating 8 hour shifts had a detrimental impact on my relationships with my children and wife and our family life together. There were times when I do [sic] not see my children for several days on end and the full responsibility for their care fell to my wife, Lisa Helmore. We rarely had weekends together and family outings were a non event. Most of our friends and family stopped inviting us out as a couple because I was always at work, or tired and exhausted from work. We could even go a full week without having a meal together. . . . I can now take my daughter to her dance classes, my son to his football coaching and help out in the kinder. These may seem like small things but they are very important in terms of my relationship with them."
Steven Grinter36 is 25 years of age and commenced employment at Huyck in or about the first week of March 2001. He is currently employed in the Needling are on the afternoon shift. He has previously worked rotating shifts (though not with Huyck) and found that "it was difficult physically to adjust to the changing hours as it disrupted my sleep patterns." He objects to the introduction of rotating shifts mainly because "In practical terms because I have limited transport, I would have serious difficulty getting to work." He currently rides his bike from Norlane to Breakwater for the start of his shift and gets a lift home with a fellow employee, Nick Farrington.
Mat Reidy37 is 26 years of age and commenced employment at Huyck on or about 13 December 1999. He is currently employed in the Finishing Department on a fixed day shift. He objects to the introduction of rotating shifts because of:
"(a) the increase from 8 hour shifts to 12 hours rotating shifts, increase in fatigue and exhaustion;
(b) I don't believe it is necessary to fix any perceived problems in relation to productivity;
(c) It would have a detrimental impact on my primary relationship."
Scott Anderson38 is 24 years of age and commenced employment at Huyck on or about 19 January 2000. He initially worked in the Needling section and is now employed in the Finishing area on a fixed night shift. He has worked rotating shifts before and "found that I could not adjust my sleep patterns at all to fit in with the rotating nature of the shifts." He has spoken to his doctor about this and has attached a statement from his doctor in the following terms:
"Scott Anderson has consulted me regarding the proposed change to his working hours from regular night shift work to a routine of two days day shift and two days night shift per week or something of the sort.
Scott tells me that he has tried this sort of arrangement in the past and has been unable to adjust his sleep pattern to the rapid changes in shifts. He is clearly not alone in this, as the attached reference, taken from the 13th Edition of Harrison's Principles of Internal Medicine, 1994, page 170, shows.
Accordingly it would be preferable if he could continue as at present, with regular night shift."39
He objects to the introduction of rotating shifts "because of the impact it will have on my health and well being."
Ashley Fox40 is 31 years of age and commenced employment at Huyck on or about 16 November 1993. He is currently employed on a fixed night shift in the Finishing Department and commences and finishes half an hour early, by a special arrangement. He has previously worked on a variety of shift arrangements. Mr Fox is married, has three young children and shares the responsibility of their care with his wife. He objects to the introduction of rotating shifts because it would "have a huge impact on those responsibilities [i.e. of caring for his children] and would put me in a very difficult position."
Robert Hide41 is 45 years of age and commenced employment at Huyck on or about 16 July 2000. Since commencing with Huyck he has worked in both the Finishing and Needling areas and is currently employed on a permanent night shift in the Needling area. He has worked on a rotating shift arrangement previously at Huyck. He is married and objects to the introduction of rotating shifts "because of the negative impact on my family life, social life and physical well being."
Lawrence Basic42 is 35 years of age and commenced employment at Huyck on or about 27 May 1992. He has always worked in the Needling area and is currently working a fixed afternoon shift. Mr Basic's reasons for objecting to the introduction of rotating shifts are as follows:
"I live by myself and operate a small farm in Meredith. Working a fixed and permanent Afternoon shift allows me to tender and feed my animals in the morning and then go to work in the afternoon. The predictability of the fixed afternoon shift is important because of this.
I have been studying for a boilermakers course part time for the last four (4) years at the Gordon Institute in Geelong. Part of this study involved attending fixed classes every Tuesday morning at the Institute. I recently sat an examination for last semester's work. I am not particularly confident that I will pass the exam. If I have not, then I will be forced to repeat the subject and attend the Tuesday morning classes next semester. If rotating shifts are introduced then I will have difficulty attending the classes."
Terry Riordan43 is 45 years of age and commenced employment with Huyck on or about 2 October 1981. He is currently working fixed day shifts in the Finishing area. He objects to the introduction of the rotating shifts particularly because of the potential impact of his relationship with his wife. He says:
"Up until October 2000 there were 8 hour rotating shifts in the Finishing department so I have personal experience of what it is like to work those types of rotating shift arrangements. When I did do those types of arrangements I found it did have specific affects on me. In particular I found that when I used to finish a night shift in the morning I was extremely tired and would have to drive home to Ocean Grove, a twenty to twenty five minute drive. I would have to concentrate very hard and was always concerned I might have an accident driving home.
I have been married for 21 years and have no children. My wife works part time in aged and disability services and works a minimum of 2 nights per week, sometimes more. We juggle both of our work commitments and try and maximise the amount of time we can spend together. When I was required to work rotating shifts previously it really did have a very negative impact on our relationship. I became very tired and unsociable and my moods became more unpredictable. I certainly did not see my wife enough and this caused issues in our relationship.
My wife became anxious when I worked night shift that I would have a car accident driving home."
Richard Heenan44 is 26 years of age and commenced employment at Huyck on 28 August 2000. He worked rotating shifts for the first four to eight weeks of his employment and "found that it was virtually impossible to get into a good work/sleep rhythm, and it had a negative impact on my social life and on my personal relationships." He says that he prefers the current arrangement where he works a fixed 12 hour day shift, because "I could plan in advance to accommodate them as I knew they were fixed. My partner, Belinda, preferred this arrangement also because it meant we could spend a lot more quality time together." Mr Heenan and his partner are engaged and intend to marry later this year. If rotating shifts were reintroduced Mr Heenan says that he would "seriously have to rethink my situation at Huyck because I believe I must put my family and primary relationships first."
Anthony Eden45 is 38 years of age and commenced employment with Huyck on or about 3 June 1992. He has only ever worked in the Finishing Department and is currently employed on a fixed night shift. Mr Eden has worked on a rotating shift before. He has suffered from "severe migraines" for many years and feels that he is able to recover from them better since he has been on night shift. He has attached a doctor's statement to that effect. He also objects to the introduction of rotating shifts on the basis that his de facto partner has a medical condition which requires transfusions every four weeks. The transfusions are currently arranged around his roster and he believes rotating shifts would "seriously interfere with these arrangements."
John Winduss46 commenced employment with Huyck on or about 15 May 1995. He is currently employed in the Finishing department on a fixed night shift. He objects to the introduction of rotating shifts because "I suffer from hypertension and generalised vascular disease. . . . I believe that working a rotating shift will badly affect my sleep patterns, increase stress and worsen my medical conditions." Mr Winduss has attached a statement from his doctor, Dr Steele, in the following terms:
"I am writing to support Mr. Winduss' objection to being placed on a rotating shifts roster at work.
Mr. Winduss suffers with hypertension and generalised vascular disease and I am concerned that interruption of his regular sleep cycle will increase stress, worsen his hypertension and increase the risk of cardiovascular events in the future."47
Rodney Day48 commenced employment with Huyck in or about September 1987. He is currently employed in the Finishing area on a permanent night shift. He has previously worked mainly afternoon and night fixed shifts. He is married and has two young children. Mr Day objects to the introduction of rotating shifts on the basis that his wife's part time shifts and their child care requirements are organised around his night shift. He also feels he would have to give up coaching his daughter's netball team, and would not be able to assist with reading at the children's school as often if the rotating shifts were introduced. Mr Day also feels it would have a detrimental effect on his well established sleep patterns.
Heath Grant49 is 23 years of age and commenced employment with Huyck on or about 5 January 2001. He is currently employed as a machine operator in the Needling section on night shift. He objects to the introduction of rotating shifts as it would put strain on his relationship with his girlfriend, and also in that he would have to break his contract with Ocean Grove Football Club to play each Saturday and train three days per week.
Consideration
[79] As previously mentioned the approach I intend to adopt in this matter is not to interfere with Huyck's right to manage its business unless what it proposes is inconsistent with its legal obligations or is unjust or unreasonable having regard to the health and safety and family responsibilities of the employees concerned and any discriminatory effect of the company's proposal.
[80] For reasons I have already given I do not regard the company's proposed introduction of rotating shifts as discriminatory. However I am concerned that the company has failed to properly consult with the TCFUA's representatives and the consultative committee about its proposal. Later I will deal with how this deficiency is to be remedied.
[81] On the basis of the material before me I have reached the following conclusions about the problems facing Huyck:
[82] The company wishes to address these issues by introducing rotating shifts in the Needling and Finishing areas. It is thought that such shift arrangements will provide employees with greater access to training and exposure to management and QA personnel. In this regard Mr Laity's evidence supports management's contentions. Training is more difficult on night shift as employees are more fatigued and find it harder to concentrate. The company's proposal seems to be a logical response to the issues facing it. In this regard I accept Mr Beard's evidence to the effect that the decline in productivity and quality must be addressed if the company is to continue to attract investment and remain viable. The central issue for determination is whether the company's proposal is unjust or unreasonable. In deciding this issue I have had particular regard to the evidence of the employees in the Needling and Finishing areas.
[83] The evidence discloses a range of concerns about the company's proposal. These concerns may be broadly categorised as follows:
[84] I accept that the introduction of rotating shifts in the Needling and Finishing areas will cause significant dislocation and inconvenience to the lives of many of the employees in these areas. The extent of such dislocation and inconvenience varies from employee to employee. But there is no instance where I would regard the impact of the company's proposal - at least on a pilot basis - as being so unjust or unreasonable as to warrant an order prohibiting Huyck from introducing rotating shifts. The range and depth of the concerns expressed by the employees in the Needling and Finishing areas does however warrant the imposition of some conditions on the implementation of the new shift arrangements.
[85] In relation to medical/health issues five employees attached letters from their doctor about the potential impact of the company's proposal on their health.50 Generally speaking this material was not particularly convincing and in my view did not advance a compelling case against the introduction of rotating shifts. A number of the letters are expressed in terms of a preference for the employees concerned remaining on their current shift patterns51 or they lack particularity. For example the correspondence from Mr Innes' doctor, Dr Gunther, says that Mr Innes "suffers from thyroid problems and these would be exacerbated by irregular work hours". There is no evidence to suggest that Dr Gunther has any idea of the rosters which are to be introduced nor does he offer any reason why Mr Innes' condition would be exacerbated as a result of working rotating shifts.
[86] Further, some of the medical correspondence simply recounts what the employee has told his doctor - for example see Dr McKew's letter52 attached to Mr Jamie Day's statement and the correspondence from Mr Anderson's doctor53.
[87] In making these observations I do not wish to be taken to be underestimating the potential for rotating shift arrangements to adversely impact on the health of the employees who have raised such concerns. Huyck is under both a statutory and a common law duty to care for the health and safety of its employees. Any new shift arrangements will have to be closely monitored to ensure that the adverse health effects are minimised. If after working on the new rosters employees provide evidence of an adverse effect on their health then these issues will need to be addressed. The state of the evidence before me does not lead me to conclude that a trial of a rotating shift roster should not take place.
[88] I have reached the same conclusion in respect of the other concerns raised by the employees. In my view these concerns can be at least partially addressed by further consultation about the type of rosters to be introduced.
[89] As noted previously, the company has failed to properly consult with the TCFUA's representatives and the consultative committee about the proposed introduction of rotating shifts in the Needling and Finishing areas. But the company's failure to properly consult does not, in my view, warrant an order prohibiting the introduction of rotating shifts. The relevant provisions in the Huyck Agreement and the 1994 Award provide for notification and consultation, they do not provide the union or the consultative committee with a veto power over management initiatives.
[90] I have concluded that the company has the right to introduce rotating shifts provided it does so in consultation with the employees affected and their union and the new shift arrangements are implemented in a way which reduces their impact on employees. In relation to the last point any new shift roster arrangements should comply with the following requirements:
_ they should only be introduced after consultation about the most appropriate form of rotating shift roster - in this regard the company should provide a number of possible options for consideration by the employees concerned and seek specialist occupational health and safety advice about the most appropriate form of roster design;
_ fourteen days notice shall be given before the commencement of the particular type of roster which is arrived at following the consultation process;
[91] I appreciate that the process I have outlined will take some time - perhaps a further four weeks, being two weeks for further consultation and fourteen days notice prior to implementation. I also recognise that this may disrupt management's plans to have personnel from Austria to provide training and assistance to employees in the Needling and Finishing areas. But in my view these measures are necessary in order to satisfactorily address the interests and concerns of all parties.
BY THE COMMISSION:
VICE PRESIDENT
Appearances:
V. Wiles appeared for the Construction, Forestry, Mining and Energy Union.
T. Dalton appeared for Huyck Australia Pty Ltd.
Hearing details:
2001.
Melbourne:
July 2 and 11.
Geelong:
July 12.
Printed by authority of the Commonwealth Government Printer
<Price code G>
2 Statement of Mr Beard; Exhibit H1.
3 Attachment ZJ2 to Exhibit TCFUA9 (witness statement of Z. Jovanovska).
4 Attachment ZJ1 to Exhibit TCFUA9 (witness statement of Z. Jovanovska).
5 Attachment ZJ4 to Exhibit TCFUA9 (witness statement of Z. Jovanovska).
6 Attachment ZJ3 to Exhibit TCFUA9 (witness statement of Z. Jovanovska).
7 Exhibit TCFUA10 at paragraph 5, also see Exhibit TCFUA11 at paragraph 4.
8 Exhibit TCFUA11 at paragraph 5.
10 Exhibits TCFUA10 and TCFUA11 respectively.
11 Also see Exhibit H7 at Table 8; Exhibit H8 at p.1 and Exhibit H10 at P.6.
12 Attachment GR1 to Exhibit TCFUA1 (witness statement of Geoffrey Ryder).
13 Australian Telecommunications Commission v Hart (1982) 43 ALR 165 at 170 per Fox J with whom Sheppard J agreed, Northrop J. not deciding; Bayley v Osborne (1984) 10 IR 5 at 8 per Davies J; Izders v LG Bennett & Co Pty Ltd t/as Alba Industries (1985) 61 IR 439 at 449 per Beazley J; Schrier v Austal Ships Pty Ltd AIRC Print P3975, 13 August 1997 per Ross VP, Drake DP and Dight C.
17 Dr Brown's witness statement, Exhibit H6.
18 Exhibit TCFUA7 at paragraph 4.
20 Messrs Ryder; Farrington; Innes; Warren; Stanley; Grinter; Hide; Basic; and Grant.
21 Messrs J. Day; Towers; Laity; Helmore; Reidy; Anderson; Fox; Riordan; Heenan; Eden; Windruss; and R. Day.
23 Attachment GR1 to Exhibit TCFUA1.
26 Attachment AI2 to Exhibit TCFUA3.
28 Attachment JD2 to Exhibit TCFUA4.
32 Attachment JL2 to Exhibit TCFUA7.
33 Statement of Richard Anson, Exhibit TCFUA8.
39 Attachment SA2 to Exhibit TCFUA16.
47 Attachment JW2 to Exhibit TCFUA23.
50 Messrs Ryder, Farrington, Innes, Day and Anderson.