1
Fair Work Act 2009
s.739 - Application to deal with a dispute
Mr Mahmoud Dahbache
v
Prixcar Services Pty Ltd
(C2014/4492)
SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 14 NOVEMBER 2014
Application to deal with a dispute.
[1] This decision arises from a dispute notification by an employee, Mr Mahmoud
Dahbache, against Prixcar Services Pty Ltd (Prixcar) lodged pursuant to section 739 of the
Fair Work Act 2009 (the Act) in accordance with clause 9, level 5, of the Prixcar Services Pty
Ltd Enterprise Agreement (the Agreement).
[2] The dispute was listed on 23 May and 6 June 2014 for conference before
Commissioner Riordan. Commissioner Riordan was unable to resolve the dispute.
[3] On 28 May 2014 a letter was received from Brian Bragg (Psychologist) stating Mr
Dahbache was suffering from work related stress and anxiety.
[4] On 19 June 2014 the notification was listed for Mention and Directions before me.
[5] Prixcar agreed to maintain Mr Dahbache’s working arrangements until resolution of
the dispute.
[6] In August 2014 Mr Dahbache notified an alleged underpayment of wages.
[7] I heard this notification on 4 September 2014. Mr Dahbache appeared at the hearing
before me with a friend, Mr Kowalczuk, who wished to assist him and who Mr Dahbache had
asked to speak on his behalf. Prixcar were represented by Mr DeClase, National Human
Relations Manager, and Mr Spiteri, NSW VPC Operations Manager. In addition to the issues
raised in the notification, Mr Dahbache alleged at the hearing that at some time in the past he
had been made a proprietor of Prixcar for the purpose of approving vehicle registrations.
Prixcar rejected any suggestion that Mr Dahbache was a proprietor of Prixcar.
[8] After the lodgement of the dispute notification and following the conclusion of the
hearing I continued to receive submissions concerning ongoing difficulties in the relationship.
[2014] FWC 7932 [Note: An appeal pursuant to s.604 (C2015/1206) was
lodged against this decision - refer to Full Bench decision dated 5 March
2015 [[2015] FWCFB 1227] for result of appeal.]
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB1227.htm
[2014] FWC 7932
2
[9] In September 2014 Mr Dahbache lodged a workers’ compensation claim for an injured
shoulder. In October 2014 Mr Dahbache alleged that Prixcar had not followed the proper
procedure for processing his work cover claims and, in particular, that there was no Claim
number. Later in October 2014 the Government Insurance Office of NSW denied Mr
Dahbache’s claim on the basis that his condition was not work related.
[10] Mr Dahbache’s notification contained the following history and issue summary:
“1. In 1994 there was a verbal agreement between Prixcar and myself Mr Mahmoud
Dahbache which was to work Mon - Thurs 6am to 3pm and 6am to midday on Friday
which makes up my full time hours.
2. This arrangement has been exercised for over 20 years between Prixcar and myself
Mr Mahmoud Dahbache.
3. I chose this roster as it allowed me to attend religious prayer every Friday and
Prixcar agreed to this. If this agreement was not agreed by Prixcar at the time of
employment I would not have sought employment with Prixcar.
4. I work entirely independently to my colleagues.
5. My right for flexible working arrangement has not been given. I need to attend
religious prayer from midday every Friday and then other commitments (one of which
is to pick up and care for my two grandchildren who live with me - my daughter is a
single mum and nurse) I have been caring for my grandchildren every Friday
afternoon for years.
6. I addressed my concerns with my Manager and was told ‘If you do not like it then
resign’. This statement was intimidating and hurtful.
7. I have a written statement reminding Prixcar of my rights being 55 years and older
that I am entitled to flexible working arrangement and have offered 6 options to allow
me to continue the current roster. In order to continue with finishing at midday on
Friday I have offered the following options:
1. Continue with the current arrangement - make up for 2.5 hrs during the week
2. Take 2.5 hrs LSL every Friday
3. Take 2.5 hrs A/L every Friday
4. Use 2.5 hrs every Friday from my RDO (and make up for the owing 2.5 hrs
during the month)
5. Take 2.5 hrs of unpaid leave every Friday
6. Reduce my working hours by 2.5 hrs a week
Despite all these options, all were rejected.
8. The options provided by Prixcar do not work. Please see documents attached. I
cannot go and come back in time as I will not make it to prayer nor will I be able to
care for my grandchildren.
[2014] FWC 7932
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9. No agreement has been reached and I am being forced to start the new shift times as
of 26th May.”1
“Issue Summary:
My current employer, ‘Prixcar services pty ltd’ is forcing me to work inflexible
working hours after 20 years of ongoing service.
Background:
Since 1994, have been working the same hours each week where I work:
9 hours per day from Monday to Thursday
Then starting at 6am on Friday and finish up at midday
Total number of hours is equal to or above the set hours per week
Historically management has never had an issue with this agreement. The agreement
has been exercised for over 20 years - until early this year when it was deemed
unacceptable. This was a key condition of my employment acceptance when joining
the firm.
I was told that these work arrangements are costing the company income - yet I work
entirely independently to my colleagues.
Reason for needing flexible working hours on Friday
On Friday afternoons I have an ongoing personal commitment that I need to attend
to
Along with this, leaving early was a key condition of my employment
My daughter who is a single mother with 2 children lives with us and relies on my
support (financially and by helping with picking up my grandkids from school).
Effect
The entire episode has had a very stressful affect on my life and all those around me.
Both my wife and I are now over 50 and 60 respectively and still care for our daughter
(single mother with 2 children).
I have since consulted my GP about my situation and have been provided with
medication, referred to see a psychologist.
Action in response:
I have tried to reason with my company on 2 separate occasions and voiced my
concerns, and the response was ‘If I am not happy I can resign’. To maintain
honesty in this case, the company has since apologised for this comment, however
the underlying issue was never resolved.
[2014] FWC 7932
4
I then contacted Fair Work Australia about my case and they have advised me to put
my issues down in writing. To support this, FWA also suggested that any employee
over 55 years of age should be considered for flexible work arrangements.
What I need from my employer
I would like my case reviewed in kind and be provided with ongoing flexible
arrangements as has been agreed since employment. Fair Work Australia has
requested that my employer respond to this letter in writing within 21 days of being
presented.
To assist with your response, for over 20 years I have been a loyal worker, hard
working and rarely take any sick leave during the course of my employment (until
recently).
I am committed to this company.”2
[11] Relevant correspondence was attached to the notification by Mr Dahbache. This
included the letters of Mr Spiteri dated 1 and 9 May 2014, Mr Dahbache’s letter to Mr Glenn
DeClase of 15 May 2014 and Mr Dahbache’s response of 18 May 2014.
[12] Mr Dahbache commenced employment at Prixcar in 1994. He alleged that part of the
inducement to work for Prixcar was the proposed flexible working arrangements that
facilitated his religious needs and child care arrangements. Since commencement of
employment Mr Dahbache has had an arrangement regarding his hours of work which suited
his personal circumstances. He worked from 6 am to 3 pm Monday to Thursday and 6 am to
12 noon on Fridays.
[13] In March 2014 proposed changes to the working arrangements at Prixcar were
notified. These changes affected Mr Dahbache’s hours of work. The first toolbox notification
was on 19 March 2014. This notification gave two weeks notice of the change.3
[14] On 23 April 2014 Mr Dahbache formally asked for the retention of his flexible
working arrangements with Prixcar.
[15] In correspondence dated 1 and 9 May 2014 Mr Spiteri rejected Mr Dahbache’s request
citing reasonable business grounds. Those grounds are set out in the correspondence and
relevant extracts are set out below:
On 1 May 2014
“The new requested arrangement outlined is Monday - Friday, 7am - 3.30 pm (with
RDO) or your choice of Monday to Friday 7am - 3pm (No RDO)
As discussed with you on several occasions we have not able (sic) to offer a working
roster consisting of Monday to Thursday 6am - 3.30pm & Friday 6am - 12pm for the
following reasons:
Our current client base consisting of 27 different vehicle manufacturers have an
operating range of 9am - 5pm, and we need to ensure our operations run as close as
[2014] FWC 7932
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possible to these hours to ensure we can provide a high level of customer service and
provide flexibility to meet their demand.
All VPC staff on the NSW Minto site have had their hours reviewed and have been
consulted regarding the changes required to meet operating requirements, along with
the reasons explained. From 843 Full time employees, 27 Casual employees and 2
Permanent Part Time employees you have been the only individual to request a 6am
start on an ongoing basis. Under our ‘duty of care’ responsibilities we are not
permitted by law to allow you to work on your own in your area for safety reasons
and unsupervised.
Although upon your employment in 1994 the company and clients of the company
may have requested a 6am start for operations, the client base of the company today
has different requirements which we need to fulfil and this consists of a 7am start to
close operations at 3.30pm. Further to this I have found no record of agreement, nor
have you provided any evidence that your employment was predicated on a roster to
your description as described above.
Through the years the previous managers within the organisation may have deemed
your hours to be satisfactory but, we need to take on board the considerations of our
clients along with the considerations of our other employees working in your unit to
ensure a fair working condition is provided to all.
To summarise what has happened so far:
On the 19/3/14 your supervisor held a team meeting for all areas under his direct
authority to discuss the proposed change in working hours for all people involved.
At this point people were given two weeks’ notice (as per the EBA) to raise any
concerns and discuss any potential impacts that individuals may have.
As requested by you on the 2/4/14 you along with your supervisor attended my
office for a meeting to discuss your concerns and explore any options that may be
available to have the times remain the same. The basis for your request was family
commitments Monday to Thursday along with religious commitments on Friday’s.
After careful consideration your request was denied and the reasons as above were
explained. To ensure you had enough support I delayed your change in work
arrangements by weeks to ensure you had time to prepare.
As requested by you on the 15/4/14 you attended my office for another review after
consulting our HR Manager. You were accompanied by a support person of your
choosing and your supervisor to once again discuss the option of keeping your
working conditions the same, again on the basis of having family commitments
Monday - Thursday and religious commitments on Friday’s. After lengthy
discussions and all available options explored by everyone, including the HR
Manager (present via teleconference) the agreement was reached that the change in
hours Monday - Thursday were non impacting to your family commitments as your
finish time did not change. The matter of leaving early on Friday could not be
accommodated for the above mentioned reasons but agreement was reached on
combining your Morning Tea and Lunch Breaks into one lunch break at 12pm to
allow you 50 minutes time to attend to your religious commitments. To my
[2014] FWC 7932
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understanding this was a suitable arrangement as you agreed to this and stated it
suited your requirements. Again, to once again allow you time to prepare I granted a
further 2 week extension to the changes.
In reference to your letter we are well aware of our responsibilities as an organisation
to our employees and have taken every opportunity, considered several options and
courses available to consult and consider your needs along with the organisational
requirements. I have had no intention to cause you any form of anxiety or stress
relating to this matter nor cause you any discomfort and apologise if this has been the
case. I would like to remind and offer to you the option of accessing our (EAP)
employee support program completely independent of the company which is free of
charge, if you wish to take your doctors advice and seek consultation regarding your
stress and anxiety levels.
Further to this I am happy to offer immediate access and approve up to 3 weeks annual
leave from your entitlements if you feel some time away from work will provide
benefit to your current stress levels.
I believe that during our last meeting our agreement met the needs of both parties and I
am quite concerned that the situation has now changed and reasons as to why you need
a flexible work arrangement have also changed to the basis of your age and status at
home regarding your mature aged daughter and grandchildren.
I will once again review your application based on the new reasoning and provide a
written response to you by no later than the 9th of May 2014. To support this I will
once again postpone the new working arrangement effective from today pending the
outcome of our decision.”4
On 9 May 2014
“In our last discussion you agreed and confirmed that 7am - 3.30pm Monday to
Thursday was not impacting on your commitments at home and was suitable for your
needs.
The issue there lies with your need to leave at 12pm every Friday.
This means you would not be working full time hours impacting the output of the area
and overall business performance and our commitments to customers.
The option to make up the additional hours Monday - Thursday is not available as all
your colleagues work 7am - 3.30pm, and to allow you to work on your own would be
a breach of our safety obligations to you.
I have taken on board your revised statement of needing to look after your mature
aged daughter and her children but I believe your original statement of needing to
attend religious commitments is the truth of the matter and this does not justify the
need to alter a full time work arrangement impacting the business and all of your
colleagues as well.
[2014] FWC 7932
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For these reasons unfortunately we cannot support your request to leave at 12pm on a
Friday, and once again I give you two weeks’ notice of the change in your working
hours.
Your new hours will be Monday to Friday 7am - 3.30pm (with RDO) or your choice
of Monday to Friday 7am - 3pm (Without RDO).
I stand by our original agreement of allowing you a combined morning tea and lunch
break of 50 minutes at 12pm to attend your religious commitments on a Friday.”5
[16] On 15 May 2014 Mr Dahbache wrote to Mr Glen DeClase.
“Dear Glen
My issue has still not been resolved nor has an agreement been reached. I am
directing this email to you as I would appreciate it if this matter is dealt with by you or
someone with higher authority. Please do not forward back to Daniel Spiteri as no
agreement was reached the first time and the matter is not being resolved. I addressed
the matter with National HR for the reason that I am not being treated fairly and
Daniel intimidates me. Telling me that if I did not like the new working hours then I
should resign. This comment was hurtful and was clear that my religious and personal
commitments were not important to him.
Please note that attending religious prayer every Friday is very important for me and
the suggested solution (combined tea and lunch break at 12) does not allow me to go
and come back in time (as prayer commences around 1pm). Leaving at 1pm was also
rejected as I would need to take a break every 4 hours. Furthermore, my commitment
to my two grandchildren every single Friday is being ignored. My daughter is a single
mother and a Nurse. Every Friday her kids are in my care and this has been practiced
for years. Why is this being ignored?
Where is the flexible working arrangement that I am entitled to being over the age of
55?
My religious prayer and caring for my grandchildren are both very important events
that I need to attend to every Friday.
I have offered to:
1. Work extra during the week to make up for leaving early (what I have done for
over 20 years)
2. Take 2.5 LSL hours every Friday
3. Take 2.5 A/L hours every Friday
4. Take 2.5 Unpaid leave every Friday
5. Reduce my working hours by 2.5 hrs
6. Take 2.5 hours of RDO every Friday and make up for the remaining 2 hrs
during the week (extra ½ hour a day)
All 6 options have been rejected. Where is my right to flexible working
arrangements? Especially that there are other staff members taking certain times off
and hours for their personal reasons. Why am I not allowed?
[2014] FWC 7932
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Furthermore despite the announcement that no staff will commence work at 6am, I can
name many staff members that are still starting work at 6am. Therefore the idea that I
am not to work alone is not an issue as there are many people around. Whilst I have
been pressured to agree to start at 7am Mon-Thurs - clearly this is unfair to me that
others are starting at 6 and 6.30am.
Again I will mention that upon my employment with Prixcar:
There was a verbal agreement between Prixcar and myself.
It has been exercised for over 20 years
If this agreement was not agreed to 20 years ago I would not have sought
employment with Prixcar.”6
[17] On 18 May 2014 Mr DeClase replied and confirmed the reasons for refusal provided
by Mr Spiteri. On that same day Mr Dahbache lodged this notification.
[18] Mr Spiteri gave evidence about the business need for a change in the hours of work.
He had moved from another Prixcar division into Mr Dahbache’s area of the business, vehicle
processing, in March 2014. He said:
“------So you came in and?---Came in and obviously I had been set some targets and
KPIs to try and make sure we’re running the business as efficiently as possible. One
of the very things that I noticed coming into the business is that across arrangement of
about a hundred and thirty employees there was a lot of variance in start/finish times.
And obviously I needed to get some order as to when people start and finish with shifts
to cover workloads and demands. So that’s what’s caused the change.
So how did it come about if – was everyone starting at six, were they?---No. Across
the hundred and forty people that we have we have different groups of shifts. Some
people were starting at six. Other people 6.30, seven right through until midday. So
I’ve done a review of the entire business, not just the section that Mr Dahbache works
in, and restructured the start times and finish times of the entire business.
Okay. And why was it necessary to alter Mr Dahbache’s hours?---The particular area
that Mr Dahbache works in is what we call our campaign and PDI area. So for a lot of
our customers we conduct registrations and servicing and detailing of vehicles, getting
them ready for pickup at our Minto facility. And starting at 6 am, finishing at 2 pm or
3 pm, in most cases, puts us outside the hours that a lot of our clients would actually
come out to our site and a lot of the times that we will need to have the cars and
vehicles ready to go. We get a lot of inquiries - - -
So you changed it from 6 o’clock to what?---7 o’clock.
And were there any exceptions to that?---No.
So you changed Mr Dahbache’s time in line with everyone else’s?---Correct.
But why was it necessary to change his finishing time, which had been in place for
such a long time, on Fridays?---On Fridays? Obviously starting at 7 am by the time
[2014] FWC 7932
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we got to the Friday there would not have been a 38 hour week worked or a 40 hour
week worked with an RDO. So that meant that his finishing time would have still
remained in line with what he had had previously. But obviously he wouldn’t have
accrued enough hours to finish at 12 o’clock on a Friday without accessing some sort
of entitlement or going without pay.”7
[19] In response to Mr Dahbache’s proposal that he be allowed to access long service
leave, Prixcar responded that it was a breach of the NSW Long Service Leave Act, which
applied as a result of the operation of clause 35 of the Agreement, to access long service
leave in such short bursts.
“MR CLAUSE: ------It means that if you accrue long service leave and after 15 years
you get 13 weeks of long service leave you’ve got to either take it as five, five and
three or four, four and five. You’ve got to take in period lots. You can’t take it in - - 8
[20] Mr Spiteri was opposed to Mr Dahbache’s use of two and one half hours annual leave
every Friday afternoon. He believed this would set a precedent for all employees which he
would be obliged to apply and that it would not be in the best interests of the business.
[21] Mr Spiteri gave evidence that he had conferred with Mr Dahbache concerning these
issues. The parties had discussions about "--- converting to casual and part-time status at
work. In effect, complying with what the request was." Mr Dahbache rejected that proposal.
In effect, the proposal involved converting Mr Dahbache to a 35 hour working week on a
part-time basis so that he retained his annual leave entitlements and sick leave entitlements on
a pro rata basis. This proposal was the subject of discussions before Commissioner Riordan.
[22] Prixcar considered letting Mr Dahbache leave two hours early on Fridays by using his
entitlement to rostered days off. That proposal would have meant that Mr Dahbache had to
leave at 1pm instead of 12 noon as he wished to. That was not acceptable to Mr Dahbache.
Prixcar would not allow Mr Dahbache to start at 6 am because he would have been at work on
his own and Prixcar considered that to be an occupational health and safety risk.
[23] In response Mr Dahbache submitted that it was he who had advised Prixcar that
various employees were working before 7am. Prixcar had then changed that arrangement. He
had also been aware that one person was taking long service leave for one day per week.
When he advised Prixcar of that situation they changed it also. Mr DeClase agreed that that
had occurred. When he became aware of these practices he had put an end to them.
[24] At the end of the hearing Mr Dahbache raised a new issue. He alleged that he had
become an owner of the business for the purpose of registering cars. He also suggested that
Prixcar were not using appropriately trained mechanics for inspections.
Conclusion
[25] Prixcar employed Mr Dahbache on conditions which included an arrangement about
his working hours which allowed him to leave work at 12 noon on Fridays. That employment
commenced in 1994 and for 20 years the arrangement was in place without interruption.
[2014] FWC 7932
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[26] Clause 24 of the Agreement is set out below:
“24. CONSULTATION ON WORKPLACE CHANGE
The Company shall notify employees and the Union in writing as early as possible of
all proposed changes which will effect the performance or organisation of work and
shall consult fully with employees and the Union about all aspects of the changes
proposed.
Effective consultation will:
Ensure that the views of employees are known by management;
Provide management with an informed basis upon which to make decisions
Ensure all outcomes are mutually agreed.”
[27] Prixcar cannot be said to have failed in its obligation to meet its agreement with Mr
Dahbache concerning hours of work. It met that obligation for 20 years. However, the
arrangement Prixcar had with Mr Dahbache was not a deal for life. The arrangement could
not be changed on a whim, but Prixcar were not obliged to continue the arrangement to the
detriment of its business as it changed and grew, or as its client’s needs altered. Prixcar was
entitled to introduce change in accordance with the Agreement.
[28] If the needs of a business change, the conditions of employment of employees may
need to change as well. I am satisfied that the business needs of Prixcar did change. Prixcar
now needs to have its staff at work during hours geared to meet the needs of its clients. It
needs its staff working when its clients are working. I am satisfied that the changes introduced
by Prixcar in March 2014 were a reasonable response to the changed circumstances of its
business. I am satisfied that Prixcar had, and still has, a legitimate business need to alter the
commencement time of its workforce. I am satisfied that 7 am was and is an appropriate time
for its workforce to commence, taking into account the need to satisfy and service its clients.
[29] I have considered the level of consultation entered into by Prixcar. Prixcar consulted
with the workforce in general and have consulted with Mr Dahbache at length. They agreed
to continue his arrangements whilst this dispute progressed. Proposals have been put to Mr
Dahbache regarding altered arrangements. He has refused all compromises. Whilst it is clear
that none of the arrangements proposed are as perfect a solution to Mr Dahbache’s needs as
the arrangement he had in place prior to March 2014, I am satisfied that those proposals were
very reasonable responses to Mr Dahbache’s personal circumstances where Prixcar had a
legitimate need for change.
[30] Whilst I understand that Mr Dahbache is dissatisfied with any change in the conditions
which applied from when he commenced employment to March 2014, I am satisfied that
Prixcar have consulted effectively and to the extent required by the Agreement and beyond,
and that it has introduced the change in a way that has been sympathetic to Mr Dahbache’s
personal circumstances.
[2014] FWC 7932
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[31] I recommend that Mr Dahbache accept the offer made by Mr Spiteri that he convert to
a 35 hour working week on a part-time basis so that he retains his annual leave and sick leave
entitlements on a pro rata basis. All current accumulated sick leave should be converted into
hours and accrued to him. He should do so as soon as his health enables him to.
SENIOR DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
Price code D, PR557518
1 Question 4 of Form F10
2 Attachment to Application
3 Transcript PN85
4 Attachment to Application
5 Attachment to Application
6 Attachment to Application
7 Transcript PN127 - PN133
8 Transcript PN142
ORK COMMISSION AUSTRA THE SEAL OF FA
