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[2013] FWCFB 2698
DECISION
Fair Work Act 2009
s.604 - Appeal of decisions
Mr Jeffrey Lamb
v
Bunnings Group Limited
(C2013/2985)
VICE PRESIDENT WATSON
DEPUTY PRESIDENT BOOTH
COMMISSIONER CARGILL MELBOURNE, 14 MAY 2013
Appeal against decision [2013] FWC 201 of Commissioner Roberts at Sydney on 16 January
2013 in matter number C2012/5230 - obligations under enterprise agreement to have regard
to family responsibilities in rostering employees - construction of agreements - meaning of
‘have regard to’ - meaning of operational requirements.
Introduction
[1] This decision concerns an appeal pursuant to s.604 of the Fair Work Act 2009 (the
Act) by Mr Jeffrey Lamb against a decision of Commissioner Roberts. The Commissioner’s
decision concerned a dispute regarding changes to rostering arrangements implemented by
Bunnings Group Limited (Bunnings) and difficulties arising for Mr Lamb due to family
responsibilities. The Commissioner determined that Bunnings had properly applied the
provisions of the Bunnings Warehouse Agreement 20101 (the Agreement) when developing
the roster.
[2] At the hearing on 1 May 2013, Mr A. Rogers, of counsel, with Mr R. Tonkli, Shop,
Distributive and Allied Employees Association appeared on behalf of Mr Lamb and
Mr J. Darams, of counsel, with Mr A. Goonrey, solicitor, appeared on behalf of Bunnings.
Mr M. Morey appeared on behalf of Unions NSW and the Australian Council of Trade
Unions (ACTU) which sought and were granted leave to intervene in the proceedings.
Background and decision under appeal
[3] Mr Lamb is employed by Bunnings on a full time basis at the Lismore store. He has
been employed by Bunnings for approximately eight years. Mr Lamb’s roster required him to
work Monday to Thursday and Sunday. He had worked on this roster for a period of
approximately three years.
[4] Mr Lamb was one of four employees working in the Special Orders, Kitchens and
Flooring (SKF) area. The SKF area is a specialist area requiring skills and knowledge not held
AUSTRALIA FAIR WORK COMMISSION
[2013] FWCFB 2698
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by employees working in other areas of the warehouse. Its busiest sales days are Thursday,
Friday and Saturday.
[5] Following a review of its staffing needs for Friday and Saturday, Bunnings attempted
to obtain agreement of team members working in the SKF area to change their rosters so that
there would be an additional person working in the area on Fridays and Saturdays. None of
the employees involved agreed to this, citing family responsibilities as the reason.
[6] When agreement on rosters could not be reached Bunnings developed a new roster
which would require the employees to be rostered to work Friday and Saturday for a
consecutive four week period in every 12 weeks. Mr Lamb was due to start working the roster
on 11 September 2012. The dispute was notified to Fair Work Australia, as it was then
known, on 10 September 2012.
[7] The dispute centred on clause 10.4 of the Agreement. Mr Lamb stated that he had
difficulties working on Fridays and Saturdays due to the fact that his wife worked on Fridays
and Saturdays and he had a responsibility to care for his children, aged three and seven years,
on those days. Clause 10.4 of the Agreement is in the following terms:
“10.4
10.4.1 Rosters for ordinary hours of work shall be set for a two week period at least
fourteen days in advance but may be varied with seven days’ notice or at any time by
mutual agreement between Bunnings and the warehouse team member affected.
10.4.2 As far as possible, rosters will be set by mutual agreement between Bunnings
and the warehouse team members.
10.4.3 In setting rosters Bunnings will have regard for the family responsibilities and
other significant commitments of warehouse team members and access to safe
transport home by warehouse team members as well as the operational requirements of
the business and the need to be fair in its treatment of warehouse team members as a
whole.
10.4.4 It is acknowledged that rosters are subject to change on an ongoing basis -
however rosters, as far as is practicable should not be subject to frequent variation
without good cause. Nothing in this clause precludes the business from being able to
roster to meet operational requirements. Nothing in this clause is to be construed as
meaning that rosters will be of a set and standard nature.”
[8] Mr Lamb sought a determination from the Commission that Bunnings refrain from
changing his roster to compel him to work on a Friday or on more than one in three
Saturdays.
[9] The Commissioner expresses his conclusions as follows:
“[83] Firstly, I turn to a consideration of the terms of the Agreement, specifically clause
10 and subclause 36.6. Mr Lamb particularly relies on the provisions of subclauses
10.4.2, 10.4.3 and 36.6 of the Agreement.
[2013] FWCFB 2698
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[84] Clause 10, as it relates to rosters and changes to rosters, is governed by certain
principles, which can be summarised as follows:
A team member may expect to be regularly rostered to work ordinary hours on
Monday to Sunday.
“Rosters ... shall be set for a two week period at least fourteen days in advance but
may be varied with seven days’ notice or at any time by mutual agreement ...”
Rosters will be set by mutual agreement “as far as possible”.
The setting of rosters by the Company “will have regard for the family
responsibilities and other significant commitments of warehouse team members ...
as well as the operational requirements of the business and the need to be fair in its
treatment of warehouse team members as a whole.”
The parties to the Agreement acknowledge that rosters are subject to change on an
ongoing basis but should not be subject to frequent variation without good cause.
“Nothing in this clause is to be construed as meaning that rosters will be of a set
and standard nature.”
[85] The overall provisions of clause 10 of the Agreement are not merely hortatory but
impose obligations on both Mr Lamb and Bunnings.
[86] In all of the options provided by Mr Lamb, he seeks the imposition of a roster on
the Company which would preclude Bunnings from ever requiring him to work on any
Friday or a maximum of one in three Saturdays unless he decided at some future date
that his family responsibilities would allow him to do so. The question before me is
whether the provisions of the Agreement allow Mr Lamb to take this stand and
whether Bunnings has applied the Agreement properly in setting a rotating roster that
would compel Mr Lamb to work some Fridays and Saturdays, if he wishes to remain a
full time employee.
[87] The evidence in this case is important in gaining an understanding of whether
Bunnings met its obligations pursuant to subclause 10.4 of the Agreement. In this
regard, I have no hesitation in accepting the evidence of Mr Randell, Mr Hoare, Mr
Eastment and Mr Stewart as being both factual and candid.
[88] In fact, the cross-examination of Mr Randell and Mr Hoare was quite limited and
in the case of Mr Eastment his evidence was not challenged at all. Mr Stewart’s
evidence, as one of the three persons affected by the rotating roster, was also
effectively unchallenged.
[89] I note here that, in particular, I accept and am persuaded by, the evidence of the
Company’s witnesses to the following effect:
The Company has a genuine business requirement to increase staff numbers in the
SKF area on Fridays and Saturdays based on customer traffic flow and sales.
Mr Lamb is a highly skilled, effective and valued member of the SKF team.
Mr Lamb was consulted well in advance of the rotating roster coming into effect.
The Company took Mr Lamb’s personal circumstances into account when
formulating a new roster and he and the other team members were treated
equitably.
Mr Smith does not possess the knowledge and skills to replace Mr Lamb.
[2013] FWCFB 2698
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Despite initial resistance, the other two SKF team members have agreed to work
the new rotating roster. The treatment of Mr Lamb has not been inequitable in that
regard.
The Company was open to suggestions from Mr Lamb as to alternative working
arrangements either at the Lismore store or another Bunnings warehouse.
The alternatives raised by Mr Lamb were either unavailable, unworkable or not in
Bunnings’ commercial interest.
Bunnings gave due consideration and equal weight to all factors before making a
decision on the new roster.
[90] Where the evidence of the applicant conflicts with that of Mr Randell, Mr Hoare
and Mr Eastment, I prefer the evidence of the three company witnesses. This is
particularly so in relation to the process of consultation before the Company adopted
the rotating roster. I accept that Mr Lamb was truthful when setting out his family
circumstances but his evidence does not persuade me that his situation creates a
special circumstance which must be accommodated by Bunnings. Mr Lamb is totally
unwilling to work on Fridays and/or Saturdays and has always been unwilling to
countenance any roster that involved such work.
[91] The evidence of Mrs Lamb I believe to have been truthful but her desire to work
on Fridays and Saturdays at Woolworths cannot give rise to an obligation on Bunnings
to arrange Mr Lamb’s hours to suit Mrs Lamb. On balance, I consider that it is Mrs
Lamb’s desire to work on Fridays and Saturdays that lies at the core of this dispute.
Her action in changing her employment status from casual to permanent part-time at
Woolworths, including an obligation to work on Fridays and Saturdays, occurred
while this dispute and Commission proceedings were ongoing. Mrs Lamb’s work
schedule has formed both an irresistible force and immovable object in Mr Lamb’s
dealings with Bunnings over a new roster. I make these observations for the sake of
completeness but Mrs Lamb’s work at Woolworths has in itself had no determinative
role in my decision making.
[92] The reliance by Mr Rogers on Bunnings not objecting to Mrs Lamb working for
Woolworths on the basis of there being no conflict of interest is misplaced in the
context of this dispute. All that Bunnings’ concession on this question means is that it
has no objection to Mr Lamb’s wife working for a rival retailer. It has no impact on
the rostering question, it certainly does not constitute some form of tacit agreement
that Mr Lamb will not be rostered for Fridays and Saturdays because of Mrs Lamb’s
work.
[93] The evidence of Mr Smith I believe to have been truthful as to matters within his
knowledge and belief. However he only became involved in the rostering dispute on or
after 16 July 2012, which means that he has little or no knowledge of earlier
consultation with affected staff members. I acknowledge Mr Smith’s offer to take over
Mr Lamb’s proposed Friday and Saturday shifts. However, as noted above, I accept
the legitimacy of the Company’s view that he is not suitable to do so. That is a
commercial decision lying totally within the purview of the Company. I also wish to
note Mr Smith’s evidence that he is a SDA delegate in the context of his
representation of Mr Lamb. In that context, the evidence of Mr Stewart that he has
never been approached by the SDA to discuss the rotating roster is of note.
[2013] FWCFB 2698
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[94] The evidence of Mr B Lamb, the applicant’s father, has not been useful to me in
my determination of this matter but I accept it as having been truthful.
[95] All in all, based on the evidence, materials and submissions before me, I have
concluded and determine that Bunnings has properly applied the provisions of the
Agreement as they relate to rostering when developing and implementing the rotating
roster. Having made that Determination, there is no need for me to deal with the
jurisdictional issue raised by Bunnings except to note that the orders sought by Mr
Lamb would in all likelihood have been beyond the power of the Commission to issue
in any event.”
Grounds of appeal
[10] Mr Lamb submits that the Commissioner erred in the following respects:
in determining that Bunnings properly applied the relevant provisions of the
Agreement;
in concluding that it was Mrs Lamb’s desire to work on Fridays and Saturdays
which is at the core of the dispute;
in not having proper regard to the evidence of Mr Christopher Randell, a witness
for Bunnings.
[11] Mr Lamb accepts that the dispute relates fundamentally to the construction of the
Agreement and did not involve the exercise of any discretion on the part of the
Commissioner.
The construction of the Agreement
[12] Central to this dispute is a consideration of the rights and obligations arising from
clause 10 of the Agreement and a determination of whether Bunnings complied with its
obligations. Before considering the facts of this matter, we propose to consider the nature of
those obligations.
[13] Counsel for Mr Lamb submits that the obligation to have regard to the family and
other significant commitments of the employee is primary and when an employee’s
circumstances render it practically impossible for the employee to comply with a proposed
roster, the employer must ascertain whether there is an alternative roster that might be
implemented consistent with the needs of the employee. He submits that insofar as
operational requirements are considered, they must be operational needs - not merely
preferences. Unions NSW and the ACTU submit that Bunnings’ operational requirements and
Mr Lamb’s family responsibilities support a conclusion that he not be rostered on Fridays or
Saturdays until his family responsibilities change.
[14] Counsel for Bunnings submits that clause 10.4.3 does not make its operational
requirements subordinate to other matters, or make the other matters ‘primary’. He submits
that it merely provides that the other matters have to be taken into account.
[15] There are well established principles concerning the approach to interpreting
enterprise agreements. The leading High Court case is the case of Amcor Ltd v Construction,
Forestry, Mining and Energy Union; Minister for Employment and Workplace Relations v
[2013] FWCFB 2698
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Construction, Forestry, Mining and Energy Union2 (Amcor). In that case Gummow, Hayne
and Heydon JJ stated:
“30. Clause 55.1.1 must be read in context. It is necessary, therefore, to have regard not
only to the text of cl 55.1.1, but also to a number of other matters: first, the other
provisions made by cl 55; secondly, the text and operation of the Agreement both as a
whole and by reference to other particular provisions made by it; and, thirdly, the
legislative background against which the Agreement was made and in which it was to
operate.”
[16] Kirby J said:
“94. However, certified agreements such as this commonly lack the precise drafting of
legislation. As appears from a scrutiny of the provisions of the Agreement, it bears the
common hallmarks of colloquial language and a measure of imprecision. Doubtless
this is a result of the background of the drafters, the circumstances and possibly the
urging of the preparation, the process of negotiation and the omission to hammer out
every detail - including possibly because such an endeavour would endanger the
accord necessary to consensus and certification by the Commission.
96. The nature of the document, the manner of its expression, the context in which it
operated and the industrial purpose it served combine to suggest that the construction
to be given to cl 55.1.1 should not be a strict one but one that contributes to a sensible
industrial outcome such as should be attributed to the parties who negotiated and
executed the Agreement. Approaching the interpretation of the clause in that way
accords with the proper way, adopted by this Court, of interpreting industrial
instruments and especially certified agreements. I agree with the following passage in
the reasons of Madgwick J in Kucks v CSR Ltd, where his Honour observed:
‘It is trite that narrow or pedantic approaches to the interpretation of an award
are misplaced. The search is for the meaning intended by the framer(s) of the
document, bearing in mind that such framer(s) were likely of a practical bent of
mind: they may well have been more concerned with expressing an intention in
ways likely to have been understood in the context of the relevant industry and
industrial relations environment than with legal niceties or jargon. Thus, for
example, it is justifiable to read the award to give effect to its evident purposes,
having regard to such context, despite mere inconsistencies or infelicities of
expression which might tend to some other reading. And meanings which avoid
inconvenience or injustice may reasonably be strained for. For reasons such as
these, expressions which have been held in the case of other instruments to
have been used to mean particular things may sensibly and properly be held to
mean something else in the document at hand.’” (references omitted)
[17] Callinan J stated that there was substance in the abovementioned observations of
Madgwick J in Kucks v CSR Limited3 (Kucks). He then said:
“131. An industrial agreement has a number of purposes, to settle disputes, to anticipate
and make provision for the resolution of future disputes, to ensure fair and just
treatment of both employer and employees, and generally to promote harmony in the
workplace. It is with the third of these that cl 55 of the Agreement is particularly
[2013] FWCFB 2698
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concerned. It is important to keep in mind therefore the desirability of a construction, if
it is reasonably available, that will operate fairly towards both parties. …”
[18] In Kucks, following the passage quoted above, Madgwick J went on to say:
“But the task remains one of interpreting a document produced by another or others. A
court is not free to give effect to some anteriorly derived notion of what would be fair
or just, regardless of what has been written into the award. Deciding what an existing
award means is a process quite different from deciding, as an arbitral body does, what
might fairly be put into an award. So, for example, ordinary or well-understood words
are in general to be accorded their ordinary or usual meaning.”
[19] A leading case in relation to the interpretation of agreements is Codelfa Construction
Pty Ltd v State Rail Authority of NSW.4 The dicta of Justice Mason, as he then was, (with
whom Stephen, Aickin and Wilson JJ agreed) has frequently been adopted and applied in
matters concerning the interpretation of enterprise agreements. In Codelfa His Honour said (at
352):
“The true rule is that evidence of surrounding circumstances is admissible to assist in
the interpretation of the contract if the language is ambiguous or susceptible of more
than one meaning. But it is not admissible to contradict the language of the contract
when it has a plain meaning. Generally speaking facts existing when the contract was
made will not be receivable as part of the surrounding circumstances as an aid to
construction, unless they were known to both parties, although, as we have seen, if the
facts are notorious knowledge of them will be presumed.
It is here that a difficulty arises with respect to the evidence of prior negotiations.
Obviously the prior negotiations will tend to establish objective background facts
which were known to both parties and the subject matter of the contract. To the extent
to which they have this tendency they are admissible. But in so far as they consist of
statements and actions of the parties which are reflective of their actual intentions and
expectations they are not receivable. The point is that such statements and actions
reveal the terms of the contract which the parties intended or hoped to make. They are
superseded by, and merged in, the contract itself. The object of the parol evidence rule
is to exclude them, the prior oral agreement of the parties being inadmissible in aid of
construction, though admissible in an action for rectification.
Consequently when the issue is which of two or more possible meanings is to be given
to a contractual provision we look, not to the actual intentions, aspirations or
expectations of the parties before or at the time of the contract, except in so far as they
are expressed in the contract, but to the objective framework of facts within which the
contract came into existence, and to the parties' presumed intention in this setting. We
do not take into account the actual intentions of the parties and for the very good
reason that an investigation of those matters would not only be time consuming but it
would also be unrewarding as it would tend to give too much weight to these factors at
the expense of the actual language of the written contract.”
[20] It should be emphasised that in interpreting the terms of an enterprise agreement
neither a court, nor this Commission, determines what is fair and just. The task involves
[2013] FWCFB 2698
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adopting a meaning consistent with the ordinary or usual meaning of the words the parties
have adopted in their agreement.
[21] In our view clause 10.4.3 imposes an obligation on Bunnings, when it sets rosters, to
have regard to the five factors specified in the clause. The language of the clause does not
support any of the factors having greater or lesser priority. The obligation to have regard to a
factor is a common drafting technique in legislation, awards and agreements. In R v Hunt; ex
parte Sean Investments Pty Ltd5 Gibbs J said:
“18. When sub-s.(7) directs the Permanent Head to "have regard to" the costs, it
requires him to take those costs into account and to give weight to them as a
fundamental element in making his determination.”
[22] In our view this approach does no more than apply the ordinary meaning of the words
used. We see no reason why any different approach should be adopted to the interpretation of
the words in clause 10.4.3. In our view Bunnings was required to have regard to each of the
factors that relevantly applied as fundamental elements in setting its roster. No factor had
primacy. Operational requirements involve more than mere preferences devoid of a perceived
advantage. In our view an operational requirement is something that is considered to be of
benefit to the business.
[23] We do not consider that the Commissioner applied a different approach to the one we
have articulated. In our view his approach to the construction of the clause was correct.
Did Bunnings comply with its obligations?
[24] We have considered the evidence in this matter. In our view it cannot be doubted that
Bunnings had regard to the family responsibilities of the four employees in the SKF area,
insofar as such factors were raised by them. In Mr Lamb’s case, Bunnings consulted with him
regarding the new roster. When he raised his objections to working on Fridays and Saturdays,
it reformulated a roster which reduced the Friday/Saturday requirement for Mr Lamb and the
other employees who had expressed opposition to being rostered on those days. It was
motivated by the desire to increase the coverage of the four SKF employees on Thursdays,
Fridays and Saturdays in order to maximise the expertise and sales ability of its staff on the
busiest days for that product range. In our view this was a legitimate factor to take into
account. Mr Lamb’s family circumstances were also legitimate factors to take into account.
Indeed Bunnings was required to do so, and clearly on the evidence, it did.
[25] Counsel for Mr Lamb relied on an aspect of the cross-examination of Mr Randell, the
Complex Manager of Bunnings’ Lismore warehouse, who gave evidence of a compromise
arrangement discussed with Mr Lamb whereby Mr Lamb would work part-time from Monday
to Wednesday each week. Although Mr Lamb rejected the proposal, it was submitted that the
indication by Mr Randell that this would be acceptable to Bunnings cast doubt on the ultimate
decision of Bunnings that Mr Lamb was required to work on some Fridays and Saturdays.
Bunnings submits that this submission takes the evidence of Mr Randell out of context.
[26] We are not satisfied that Mr Randell’s evidence casts doubt on the legitimacy of
Bunnings’ reliance on operational requirements. The evidence on this matter concerned
discussions well after the event, subsequent to the formulation of the roster and after having
regard to the family responsibilities of Mr Lamb and the other SKF employees. Mr Randell
[2013] FWCFB 2698
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thought that a part-time arrangement might be acceptable because it freed up the ability to
roster other employees on Fridays and Saturdays but Mr Lamb did not agree to move to part-
time.
[27] In our view the conclusion of the Commissioner that in setting its roster in the SKF
area Bunnings had regard to Mr Lamb’s family responsibilities and thereby complied with its
obligations under the Agreement is correct.
[28] The appeal in this matter is against a decision regarding the interpretation of the
Agreement. It is to be determined by considering whether the conclusion reached by the
Commissioner was erroneous. Insofar as the appeal grounds raise issues with the reasoning of
the Commissioner we have not found it necessary to consider them.
Conclusions
[29] For the reasons above we are of the view that the conclusions reached by the
Commissioner were correct. Bunnings had an obligation to have regard to Mr Lamb’s family
responsibilities when setting the new roster in the SKF area. The proper construction of the
clause in question is addressed in detail above. We find that Bunnings carried out that
obligation in establishing the roster in the SKF area involving Mr Lamb and the other SKF
employees.
[30] As the dispute relates to the allegation that Bunnings did not comply with its
obligations to have regard to family responsibilities, neither the decision of the Commissioner
nor this appeal requires a consideration of whether the ultimate decision of Bunnings
regarding its roster was fair and reasonable.
[31] In the light of the wording of clause 36 of the Agreement there is some doubt whether
permission to appeal is required. We consider that clause 36.7 does more than acknowledge
the possible existence of a right to appeal. In our view it independently creates such a right.6 It
follows that permission to appeal is not required. If permission to appeal was required we
would be disposed to grant it.
[32] For the above reasons we dismiss the appeal.
VICE PRESIDENT WATSON
Appearances:
A. Rogers, of counsel, with R. Tonkli of the Shop, Distributive and Allied Employees
Association for Mr Lamb.
J. Darams, of counsel, with A. Goonrey, solicitor, for Bunnings Group Limited
COMMISSION AUSTRALIA THE SEAL OF FA
[2013] FWCFB 2698
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Hearing details:
2013.
Sydney.
May, 1.
Printed by authority of the Commonwealth Government Printer
Price code C, PR536210
1 AE884757.
2 (2005) 222 CLR 241.
3 (1996) 66 IR 182.
4 (1982) 149 CLR 337.
5 (1979) 180 CLR 322.
6 “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing
Workers’ Union (AMWU) v Silcar Pty Ltd [2011] FWAFB 2555.
