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G014 Dec 571/91 M Print J8236
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1988 s.113 applications for variation
Printing and Kindred Industries Union (C No. 20728 of 1990)
Printing and Allied Trades Employers' Federation of Australia (C No. 20953 of 1990)
GRAPHIC ARTS AWARD, 1977(1) (ODN C Nos 01751, 02346 of 1972, 02001 and 02855 of 1974)
Various employees Graphic arts
DEPUTY PRESIDENT KEOGH DEPUTY PRESIDENT MARSH COMMISSIONER OLDMEADOW MELBOURNE, 24 JUNE 1991
Hours of work - 38 hour week - ordinary hours - spread of hours - shift work - a number of issues related to working arrangements were unresolved following determinations in respect of National Wage Case August 1989 second structural efficiency increase - industry had a unique background which had resulted in variable practices and arrangements which had arisen out of the myriad of agreements reached outside the Commission - Commission's task was to tailor this disparate pattern of working arrangements into cogent, consistent and sustainable award provisions - most appropriate course of action was to provide an award framework which would enable the parties to resolve the issues at the enterprise level - framework established which provided for a facilitative approach.
DECISION
In its interim decision(2) the Commission determined pursuant to the Structural Efficiency Principle exercise a number of matters arising out of the August 1989 National Wage Case decision,(3) of which resolution of deepseated issues related to working arrangements in the graphic arts industry formed an integral part. The variations made to the Graphic Arts Award, 1977 (the award) in the interim decision provided inter alia,
"7. Vary clause 19 to provide that the ordinary hours of work for day work or shift work shall not exceed an average of 38 per week over specific cycles.
8. Vary clause 26(b) to insert the following proviso:
'Provided that:
(i) Where pursuant to clause 19, Hours of Work an employer has adopted a system of ordinary working hours which ______________________________________________________________________________
(1)Print D3516 [G014]; (1977) 194-3 CAR 5 (2)Print J3604 (3)Print H9100
2 DECISION - GRAPHIC ARTS AWARD, 1977
does not require employees to work for more than six hours on a day or shift, and they are not required to work in excess of their ordinary hours on that day or shift, then by agreement between the employer and the majority of those employees a meal break need not be taken on that day or shift.
(ii) By agreement between an employer and an employee or the majority of employees in the plant, work section or sections concerned, an employee or employees may be required to work in excess of five hours but not more than six hours at ordinary rates of pay without a meal break.' . . .
10. Vary clause 29 in the terms sought in the PATEFA application."
It is important to restate the context in which the parties are seeking resolution of their long standing differences over hours of work issues:
"It is beyond contention that hours worked in many areas of the graphic arts industry have averaged less than 40 hours per week for some years. The working patterns and practices reflect agreements made on an establishment by establishment basis. It is equally beyond contention that the issue of hours of work is a priority area under the restructuring of the award. To claim otherwise would make a mockery of that exercise. The Commission itself has identified the hours of work issue to be addressed in the context of implementing the second phase of the Structural Efficiency Principle. It is also common ground between the parties that as far as possible the current practices should be reflected in the award to give it practical relevance. To inject reality into the award is clearly consistent with the objectives of the Structural Efficiency Principle."
The interim decision while varying the award in the manner described above stated:
"The matter does not end there.
It was common ground between the parties that the current award provisions do not properly reflect current work arrangements and requirements of the industry. Having carefully considered the unique history of hours of work in the award, the failed negotiations of the parties on this issue and the applications of both PATEFA and PKIU we consider that these issues must be confronted and resolved."
As a result of this decision the parties conferred on outstanding issues but ultimately two separate applications seeking to vary the Hours of Work and Shift Work provisions in the award were put to this Full Bench for determination.
A number of areas of agreement between the parties form the basis from which the differences must be assessed. These are broadly summarised in the Printing and Kindred Industries Union's (PKIU) reply submission,
"(i) Capacity to work the 38 hour week over a number of work cycles.
DECISION - GRAPHIC ARTS AWARD, 1977 3
(ii) Varying the award to extend ordinary hours of work up to 8-3/4 hours per day as of right to employers.
(iii) Varying the award to provide a facilitative provision allowing for extended daily hours of up to 10 hours and up to 12 hours.
(iv) Varying the award to provide a facilitative provision allowing for ordinary hours to be worked over Saturday and Sunday.
(v) Varying the award to extend the span of hours for afternoon and night shifts. (vi) Varying the award to extend continuous shift work from 5 days to 7 days.
(vii) Varying the award to include an implementation of shorter working hours provision."
These areas of agreement should not be regarded lightly. Outstanding matters however, of critical importance in determining the operation of the Hours of Work and Shift Work clauses remain between the parties. As indicated in the interim decision we are faced with the unique background which has resulted in variable practices and arrangements which have arisen out of the myriad of agreements reached outside the Commission. This in turn has resulted in wide award abuse by all parties. Our task is to tailor this disparate pattern of working arrangements into cogent, consistent and sustainable award provisions. The complexity of this task has not been assisted by the incompleteness of the factual material which the parties produced during the proceedings. However, as the Printing and Allied Trades Employers' Federation of Australia (PATEFA) stated in relation to the history of working hours in the graphic arts industry,
". . . it is coy in the extreme to pretend it never happened and I think that it is a question of how you address these issues."(4)
This view is essentially echoed in the PKIU's written reply submissions:
"To a large extent the differences between the parties regarding award changes and the introduction of facilitative provisions go to issues of how the change agreed upon should be implemented rather than whether or not the change should occur."(5)
We have given careful consideration to the applications, both of which we were asked to regard as representing an integrated package aimed at meeting the unique circumstances of the graphic arts industry. In particular in deciding upon the most appropriate approach to resolve the issues we have taken into account a number of matters including:
. the lack of detailed statistical information about the actual impact on current working arrangements of adopting the respective applications to vary the award;
. the trend in many federal awards towards the insertion of a range of facilitative clauses;
______________________________________________________________________________
(4)transcript, p.352 (5)p.8
4 DECISION - GRAPHIC ARTS AWARD, 1977
. the fact that clause 17(c) Award Modernisation was inserted into the award as part of the interim decision and remains untested;
. the generally acknowledged failure of the effectiveness of clause 20A Enabling Provision and the distinction between this clause and clause 17(c) Award Modernisation;
. the failure of the parties to address by way of merit argument the case for substantive award variations going to complex issues involving the totality of conditions to govern day work, non-continuous and continuous shift work and the interaction of the proposed conditions; and of particular importance
. the need to ensure that the award is and remains relevant given the background of disparate working arrangements.
In all these circumstances we have decided that the most appropriate course of action is to provide an award framework which will enable the parties to resolve the issues at the enterprise level. We have decided to build upon the facilitative approach which has been adopted both in the decision of Deputy President Marsh when dealing with the first Structural Efficiency Principle adjustment,(6) and the interim decision of this Full Bench which, as noted above, introduced into the award an Award Modernisation clause. The utilisation of this clause when properly and constructively applied, offers the parties the best means of assessing and balancing the competing criteria of flexibility and efficiency for employers against equity and protection of employees. It provides also the most appropriate avenue by which flexibilities reflected in current enterprise based working arrangements can be retained while overcoming award breaches. Furthermore the proper use of facilitative provisions within the award structure can enable an assessment of the effect of any deviation from the award in the context of the particular circumstances prevailing at the time the change is sought.
We have generally left unaltered key award provisions including the span of hours and existing penalties. We have decided instead to establish a framework which provides for a facilitative approach ranging from agreements capable of resolution between employers and employees through to the more structured approach provided by subclause 17(c)(iv) Award Modernisation. We have exercised caution in determining which matters should be processed in accordance with subclause 17(c)(iv). We do so because the nature of the issues raised by the parties is such that in many instances their treatment requires the processes in this subclause.
We have decided the award will be varied as follows:
A. DAY WORK:
1. Prescriptive award changes:
(a) The ordinary hours of work for day work shall not exceed an average of 38 hours per week or an average of 7 hours 36 minutes per day; or
subject to implementation of the shorter hours clause:
(6)Print J0152
DECISION - GRAPHIC ARTS AWARD, 1977 5
(b) The ordinary hours of day work subject to the exceptions below (A2 and A3) shall not exceed 8-3/4 hours a day within a work cycle arranged on one of the following bases:
(i) 38 hours within a work cycle not exceeding seven consecutive days; or
(ii) 76 hours within a work cycle not exceeding fourteen consecutive days; or
(iii) 114 hours within a work cycle not exceeding 21 consecutive days; or
(iv) 152 hours within a work cycle not exceeding 28 consecutive days.
(v) Any other work cycle as agreed pursuant to the subclause dealing with Implementation of Working Hours (Banking of Rostered Days/Shifts). (c) Subject to the exception below (A3) the ordinary hours of day work shall be worked on not more than five days Monday to Friday, inclusive of each week and may be arranged on any of the days or all of the days of each week, Monday to Friday inclusive.
2. Award provisions may be varied by agreement between the employer and majority of employees at the plant or work section or sections concerned.
(a) Notwithstanding subclause 1(b) the ordinary hours of an employee can be extended beyond 8-3/4 and up to 10 hours per day within the existing span of hours on any day Monday to Friday inclusive.
3. Award variation may be agreed upon subject to the terms of subclause 17(c)(iv) Award Modernisation.
(a) Notwithstanding award provisions an employee may work ordinary hours outside the span of hours and/or in excess of 10 hours and up to 12 hours. Where a 12 hour shift is introduced the terms of agreement shall also be subject to
(i) the employer, Union and employees concerned being guided by the occupational health and safety provisions of the ACTU Code of Conduct on 12 Hour Shifts; (ii) proper health monitoring procedures being introduced;
(iii) suitable roster arrangements being made; and
(iv) proper supervision being provided. (b) Notwithstanding award provisions ordinary hours of work may be arranged on any day of the week, including Saturday and Sunday.
6 DECISION - GRAPHIC ARTS AWARD, 1977
B. SHIFT WORK:
1. Prescriptive award changes
(a) Shift definitions
On the basis that the new definitions for afternoon shift and night shift are agreed between the parties we are prepared to accept the prescriptive changes to the award for these definitions.
"Afternoon Shift" means any shift finishing after 6.00 p.m. and at or before 12.45 a.m.
"Night Shift" means any shift finishing subsequent to 12.45 a.m. and at or before 10.00 a.m. C. HOURS OTHER THAN CONTINUOUS SHIFT WORK:
1. Prescriptive award changes
Ordinary Hours of Shift Work (other than continuous shift work)
(a) The ordinary hours of work for shift work shall not exceed an average of 38 per week or an average of 7 hours 36 minutes per shift; or
subject to implementation of the shorter hours clause:
(b) The ordinary hours of shift work other than continuous shift work and subject to the exceptions below (C2 and C3) shall not exceed 8-3/4 hours per shift within a work cycle arranged on any of the following bases:
(i) 38 hours within a work cycle not exceeding seven consecutive days; or
(ii) 76 hours within a work cycle not exceeding fourteen consecutive days; or
(iii) 114 hours within a work cycle not exceeding 21 consecutive days; or
(iv) 152 hours within a work cycle not exceeding 28 consecutive days.
(v) Any other work cycle as agreed pursuant to the subclause dealing with Implementation of Working Hours (Banking of Rostered Days/Shifts).
(c) Subject to the exception below (C3) the ordinary hours of shift work other than continuous shift work shall be worked on not more than five days Monday to Friday inclusive, of each week and may be arranged on any of the days or all of the days of each week Monday to Friday inclusive. Provided that work by a shift worker commencing on a Friday may continue into the Saturday for the remaining ordinary hours of work which commenced on the Friday without payment of double time or double rates.
DECISION - GRAPHIC ARTS AWARD, 1977 7
2. Award provisions may be varied by agreement between the employer and majority of employees at the plant or work section or sections concerned. (a) Notwithstanding subclause 1(b) an employee may work ordinary shift hours beyond 8-3/4 and up to 10 hours per day on any day Monday to Friday inclusive.
3. Award variations may be agreed subject to the terms of subclause 17(c)(iv) Award Modernisation.
(a) Notwithstanding the award provision the ordinary hours of afternoon shift work and night shift work may be performed in excess of 10 hours and up to 12 hours a day. Where a 12 hour shift is introduced the terms of agreement shall also be subject to:
(i) the employer, union and employees concerned being guided by the occupational health and safety provisions of the ACTU Code of Conduct on 12 Hour Shifts;
(ii) proper health monitoring procedures being introduced;
(iii) suitable roster arrangements being made; and
(iv) proper supervision being provided.
(b) Notwithstanding the award provision the ordinary hours of shift work may be arranged on any day of the week including Saturday and Sunday.
D. CONTINUOUS SHIFT WORK
1. Prescriptive award changes
Hours Continuous shift work
(a) The ordinary hours of work for continuous shift work subject to the exceptions below (D2 and D3) shall not exceed 8 hours on any of the three shifts worked in each 24 hours and shall not exceed an average of 38 per week within a work cycle not exceeding 28 consecutive days or over such longer period as may be agreed between the employer and the majority of employees at the plant or work section or sections concerned. (b) Subject to the exception below (D3) the ordinary hours of continuous shift work in a roster cycle that prescribes "afternoon shift" and "night shift" shall be worked in not more than five days Monday to Friday, inclusive of each week and may be arranged on any of the days or all of the days of each week Monday to Friday, inclusive. Provided that work by a continuous shift worker commencing on a Friday may continue into the Saturday for the remaining ordinary hours of work which commenced on the Friday without payment of double time or double rates.
8 DECISION - GRAPHIC ARTS AWARD, 1977
(c) Shift workers whilst recognising their obligations to continue at work until relieved shall not be required to work more than two consecutive shifts. The employer shall avoid double shifts as far as possible by using every endeavour to arrange reliefs, and shall limit the number of double shifts worked by an employee to one in any week except in unavoidable circumstances.
2. Award provisions may be varied by agreement between the employer and majority of employees at plant or work section or sections concerned.
(a) Notwithstanding subclause 1(a) an employee may work ordinary shift hours beyond 8 hours and up to 10 hours on any day Monday to Friday inclusive.
(b) A roster system may operate on the basis that the weekly average of 38 ordinary hours is achieved over a period which exceeds 28 consecutive days.
3. Award variation may be agreed upon subject to the terms of subclause 17(c)(iv) Award Modernisation.
(a) Notwithstanding the award provision the ordinary hours of continuous shift work may be arranged on any five, six or seven days of the week Monday to Sunday inclusive.
(b) Notwithstanding the award provision the ordinary hours of continuous shift work may be performed in excess of 10 and up to 12 hours each day shall also be subject to:
(i) the employer, union and employees concerned being guided by the occupational health and safety provisions of the ACTU Code of Conduct on 12 Hour Shifts;
(ii) proper health monitoring procedures being introduced;
(iii) suitable roster arrangements being made; and
(iv) proper supervision being provided.
(b) Notwithstanding the award provision the ordinary hours of shift work may be arranged on any day of the week including Saturday and Sunday.
E. IMPLEMENTATION OF SHORTER HOURS
NEW CLAUSE
(a) Methods of implementation of ordinary working hours may apply differently to various groups or sections of employees in the plant or establishment concerned.
(b) In each plant an assessment should be made as to which method of implementation best suits the business and the proposal shall be discussed with the employees concerned, the objective being to reach agreement on the method of implementation.
DECISION - GRAPHIC ARTS AWARD, 1977 9
(c) In the absence of agreement at plant level in respect to the implementation of ordinary working hours the following procedure shall be applied without delay:
(i) Consultation shall take place within the particular establishment concerned.
(ii) If it is unable to be resolved at establishment level, the matter shall be referred to the State Secretary of the union or his/her deputy, at which level a conference of the parties shall be convened without delay.
(iii) If the problem remains unresolved the matter shall be referred to the Federal Secretary of the union, or his/her deputy at which level the matter will again be dealt with without delay.
(iv) In the absence of agreement either party shall refer the matter to the Australian Industrial Relations Commission for resolution.
(v) While the above procedure is being followed work shall continue normally in accordance with this award.
(d) Days Off
Where pursuant to paragraphs (g)(ii) and (iii) of this clause an employer adopts a system of work which entitles an employee to a day off during the work cycle, the following provisions shall apply:
(i) An employer and an employee or the majority of employees may by agreement substitute the day the employee or employees concerned are to take off during a work cycle for another day.
An apprentice who is required to attend trade school on a rostered day off shall be entitled to a substitute day as soon as practicable following the attendance at trade school.
(ii) Except as provided in paragraph (d)(i) hereof work performed on a rostered day off or shift off shall be paid for at the rate of time and a half for the first three hours and double time thereafter in the case of day work and non-continous shift work and at the rate of double time for seven day continuous shift work.
(iii) Where an employee's rostered day off falls on a public holiday prescribed in clause 27 of this award, the employee shall, within three months of the date of that public holiday be given an alternative working day off in lieu of the day off which falls on the public holiday. Provided that an employee working seven day continuous shift work who by the arrangement of ordinary hours of work is entitled to a rostered shift off which falls on a public holiday prescribed by clause 27 of this award shall at the discretion of the employer be paid an additional day's pay for that day at
10 DECISION - GRAPHIC ARTS AWARD, 1977
ordinary rates or have an additional day added to the annual leave entitlement. This provision shall not apply when the holiday on which the employee is rostered off falls on a Saturday or Sunday.
(e) Notice of days off
Except as provided in subclause (d)(i) and subclause (f) hereof, in cases where, by virtue of the arrangement of his/her ordinary hours, an employee, in accordance with subclause (g)(ii) and (iii) hereof, is entitled to a day off during his/her work cycle, such employee shall be advised by the employer at least four weeks in advance of the weekday he/she is to take off; provided that a lesser period of notice may be agreed by the employer and the majority of employees in the plant or work section or sections concerned.
(f) Banking of Rostered Days/Shifts
By agreement between the employer and employee or majority of employees, rostered days/shifts off may be accumulated (banked) up to a maximum of five days/shifts and shall be entitled to be taken in a manner agreed upon between the employer and the employee or the majority of employees prior to the first of such days/shifts accumulating.
In relation to the Implementation of Shorter Hours clause, we are unable on the material before us to make a final determination on the proposals raised, namely, the PKIU provision dealing with part day definition, the PATEFA proposal for working a different number of hours on one or more days of the work cycle, or the PKIU suggested proviso relating to accrued time off. We require that there be further discussions between the parties with ultimate resolution, as required, by the Commission. In these circumstances we will provide a clause in the following terms, pending final resolution: (g) Implementation of Ordinary Working Hours
The method of implementation of the ordinary hours of work may be any one of the following:
(i) by employees working a constant number of ordinary hours each day; or
(ii) by fixing one or more days on which all employees will be off during a particular work cycle; or
(iii) by rostering employees off on various days of the week during a particular work cycle so that each employee has one or more days off during that cycle.
Two other areas require clarification:
First: The issue of roster arrangements for crewing may form part of the consultation leading to agreement reached pursuant to subclause 17(c)(iv) for rostering seven day continuous shifts. At this stage we have decided that the issue of provision of annual leave for seven day continuous shift workers has not been properly addressed. The length of annual leave for such shift workers should also form part of the matters to be determined on a case by case basis when the introduction of such shift arrangements is being negotiated.
DECISION - GRAPHIC ARTS AWARD, 1977 11
Second: The consultative processes we have established including the role ascribed to the union makes it unnecessary for us to determine the issue of providing for award compliance clauses as sought by the union. In the event that the award is breached established procedures are already available.
A number of consequential amendments to the award will be required. The parties are directed to confer on these, together with any other amendments deemed appropriate arising out of this decision. The following clauses will remain unaltered, subject to the outcome of the above discussion:
. clause 19(a) Span of hours . clause 19(a)(iii) Early start . clause 19(b) Juniors . clause 19(c) Fixation and change of hours . clause 19(d) Posting of working hours . clause 19(e) Emergency provisions . clause 20(a) Definitions for continuous shift work and morning shift . clause 20(c) Shift allowances . clause 20(d) Allowances part of weekly wage . clause 20(e) Meal break - continuous shift work . clause 20(f) Change of working periods . clause 20(g) Shift workers not to work alone . clause 20(h) Fixation and change of hours . clause 20(i) Posting of working hours . clause 20(j) Emergency provisions . clause 21 Overtime . clause 28 Annual leave
In addition the award will be varied as follows:
. Re-insert previous provision 16(b) headed Indexation of overaward payments.
. Removal of clause 20A - Enabling Provision for Extended Shift Operation.
. Insert a new subclause 29(a)(iii) - Sick Leave as per PATEFA application (with consequential re-numbering of existing sub-paragraphs).
Conclusion:
We conclude with a number of observations;
. This decision addresses the unique circumstances of the graphic arts industry. It does not reflect on industry or community standards although any such standards may be a relevant consideration in any arbitration required to resolve disputes arising out of the application of this decision.
. The intent has been to provide a framework which recognises the special characteristics of this award and within which the terms of hours of work arrangements can be agreed on a case by case basis. The particular facilitative framework adopted in this decision with its emphasis on the use of subclause 17(c)(iv) may not be the most appropriate framework to be used in different awards.
12 DECISION - GRAPHIC ARTS AWARD, 1977
. The facilitative provisions based on agreement between the employer and the majority of employees at the plant or work section or sections concerned are not subject to the requirements of subclause 17(c)(ii) of the award. In the event of any failure to reach agreement between the employer and employees clause 57 - Settlement of Disputes, or the procedure set out in the Implementation of Shorter Hours clause should be utilised.
. It remains open to either party to seek to vary the award in a substantive manner if the other party fails to co-operate with the stated intent of this decision. We direct the parties to confer on matters arising out of this decision. We see no impediment to the parties reaching agreement which seeks to refine or streamline its detail. The parties are directed to draw up appropriate draft orders. The award variations will operate from the date on which the order is signed and remain in force for a period of six months. The matter will be listed before Deputy President Marsh for a settlement of order conference on Thursday, 11 July at 4.15 p.m. in Sydney.
Appearances:
M. Stuart with J. Cahill, G. Cooke, T. Burton, I. Wenham and E. Snell for the Printing and Kindred Industries Union and intervening for the Australian Council of Trade Unions.
K. Browne with J. Tamplin and J. Hargrave for the Printing and Allied Trades Employers' Federation of Australia.
L. Gheller for Respondent members of The Australian Chamber of Manufactures.
G. Knespal and S. Powell for Graphic Arts Services Association of Australia.
R. T. Ironmonger for Respondent members of The Victorian Employers Federation.
A. Salmon for Respondent members of Metal Trades Industry Association of Australia.
M. Schmidt for Australian Suburban Newspapers Association Northern Division and others.
Dates and places of hearing:
1990. Sydney: June 7, 20. Melbourne: July 24; November 19, 22, 23; December 19, 20. ** end of text **
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