"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Unilever Australia Ltd T/A Streets Ice-Cream Minto [2018] FWC 752

1 Fair Work Act 2009 s.739 - Application to deal with a dispute "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Unilever Australia Ltd T/A Streets Ice-Cream Minto (C2017/7139) Food, beverages and tobacco manufacturing industry COMMISSIONER RIORDAN SYDNEY, 6 FEBRUARY 2018 s.739 – Application to deal with a dispute. [1] Unilever Australia Ltd T/A Streets Ice-Cream Minto (Streets) are undertaking a fundamental restructuring of their production facility at Minto. As part of the recently approved Unilever Australia Trading Ltd, (trading as Streets Ice Cream, Minto) Enterprise Agreement 20171 (the Agreement), the parties agreed that 50 full time positions would be made redundant. [2] Clause 20 of the Agreement sets out the parameters associated with this process. Based on a Recommendation of the Commission the parties agreed to utilize a criteria based on skills, aptitude and experience. [3] Prior to the utilization of this criteria, the parties agreed to give preference to those employees whose role had either completely disappeared or had significantly and substantially changed. Preference was also given to those employees who expressed an expression of interest to take redundancy on compassionate grounds due to the detrimental effect that working the new roster would have on them or their family. [4] An initial review identified the employees who Streets felt satisfied this principle. This decision relates to the 15 employees who have appealed the outcome of the initial review. [5] A Determinative Conference was held on site on 2 February 2018. Each of the 15 employees were given an individual opportunity to highlight and expand on their original redundancy application. [6] As I advised each of the employees on the day, I have allocated them a number between 1 and 15 in this decision to protect their privacy and maintain their anonymity. [2018] FWC 752 DECISION -- 1 of 8 -- [2018] FWC 752 2 [7] In coming to the conclusions below, I have taken into account the submissions of the employee, their Union, the Australian Manufacturing Workers’ Union (AMWU) and the representative from Streets. [8] I am sympathetic to all of the employees who have lodged appeals. I understand their frustration that, after reaching the difficult decision to apply for a voluntary redundancy, surprisingly, more than 50 of their fellow employees also lodged an expression of interest. [9] Streets identified that each of the employees that are the subject of this decision are a valued and skilled member of staff that they wanted to retain in the business to help make the plant more productive, efficient and profitable. Consideration [10] Employee 1 a) Employee 1 raised issues in relation to increased child care costs, during the summer roster, when he will be required to put his children in additional childcare just to attend work. b) Further, this employee identified that he does not work overtime purely on the basis that it causes a significant effect on his children due to the irregularity that these additional shifts causes to their lifestyle. [11] I am sympathetic to the situation of Employee 1. The new roster will result in this employee being forced to pay additional fees in childcare costs simply to attend work. I also note that it will fundamentally change the way that he has decided to raise his children. It would be unfair to force an employee to work on a Saturday when they have deliberately decided previously not to do so for personal reasons. As a result, I find that the new shift roster will have a detrimental effect on Employee 1 and that he has satisfied the compassionate grounds criteria in order to be granted a redundancy. [12] Employee 2 a) Employee 2 suffers from stress and believes that he cannot work 12 hour shifts anymore. He claims that recent events have changed him as a person and made him an emotional wreck. b) As a result of the threatened cancellation of the Enterprise Agreement and threatened loss of pay, this employee’s wife has returned to the workforce. Employee 2 claimed it would be unfair to ask her to interrupt her career again to deal with the substantial needs of their children. Employee 2 claimed that his marriage will fail if he is forced to work the new roster. c) Streets argued that this employee was an invaluable member of staff and highlighted that his concerns are with the ongoing 12 hour shifts rather than the new shift rosters. -- 2 of 8 -- [2018] FWC 752 3 [13] It is evident that Employee 2 is suffering from a significant level of mental stress. Put simply, the EBA negotiation process and outcome has had a significant effect on his capacity to function. The new roster simply does not work in his current family environment. I find that Employee 2 has satisfied the compassionate grounds criteria in order to be granted a redundancy. [14] Employee 3 a) Employee 3 has issues pertaining to child care for his school aged son on the basis that the child care centre closes at 6:00pm. With his wife also working until 5:30pm in the city, it is becoming increasingly difficult to organise care/supervision for his son after 6pm. b) Streets submitted that Employee 3 is a very long serving employee whose issue is with the span of shifts being from 6:00am to 6:00pm rather than the new roster. [15] I find that Employee 3’s issues do not relate to the new roster. In fact, over a 12 month period, the new roster will provide this employee with more opportunity to provide care on school days for his child. [16] Employee 4 a) Employee 4 has increased caring issues and responsibilities for her unwell parents and claims that the new roster will make it more difficult to provide or organise regular care. b) Streets submitted that these issues are not linked to the new roster arrangements. [17] Whilst I am sympathetic and comprehend Employee 4’s issues on a personal level, I find that these issues do not relate to the new roster arrangements. [18] Employee 5 a) Employee 5 provided evidence of personal medical issues which are currently having some effect on their capacity at work, which they fear will be multiplied in the future due to the reduction in staff. Employee 5 believes that the role will be too physically demanding for them in the future. b) Streets advised that Employee 5 is a highly valued employee. Further that the shift changes will not affect the workload and that any safety issues will be dealt with appropriately. [19] It was evident that Employee 5 has a real but unnecessary concern about her workplace future. However, I find that this issue is not the result of the new shift roster. Streets have committed that the physicality of Employee 5’s role will not change. -- 3 of 8 -- [2018] FWC 752 4 [20] Employee 6 a) Employee 6 has an on-going and increasing caring responsibility which has created a back problem which will be further exacerbated over time – despite medical treatment. This employee identified that they do virtually no overtime as a result of this complaint and that they do not believe that their back will cope with the five shift week under the new summer roster. b) Streets agreed that this employee’s workload may increase slightly under the new roster. Further, Streets has an expectation that employees will be fit enough to perform their duties. [21] I am satisfied that Employee 6 does have a justifiable issue in relation to his ongoing capacity to work the new shift roster. This employee provided medical evidence of his back issues. I find that Employee 6 has satisfied the compassionate grounds criteria in order to be granted a redundancy. [22] Employee 7 a) Employee 7 suffers from high blood pressure. Due to an unfortunate occurrence with an extended family member, this employee now has family issues that make working night shift very difficult. b) Streets submitted that this employee is highly skilled and identified that their issues were not related to the changed shift roster. [23] I find that whilst employee 7’s issues are personally confronting, the situation is not caused by the introduction of the new roster. [24] Employee 8 a) Employee 8 suffers from a very restrictive medical issue which requires regular meal breaks. The new shift roster with 3 x 20 minute breaks is proving to be too difficult in relation to both food and fluid intake to maintain her strength for a 12 hour shift. b) Employee 8 also has a very unique caring situation in relation to her children which needs to be urgently addressed. c) Streets claims that Employee 8 is a highly valued employee but that it cannot accede to the requirement for meal breaks every two hours. [25] It is evident that the new roster will have a detrimental and possibly serious effect on the health and wellbeing of Employee 8. I find that Employee 8 has satisfied the criteria to be granted redundancy. Consideration should be given to allow Employee 8 to be made redundant immediately. -- 4 of 8 -- [2018] FWC 752 5 [26] Employee 9 a) Employee 9 had listed two caring responsibilities as the reason for his application. Unfortunately his brother has recently passed away. I offer Employee 9 my condolences for his loss. b) Employee 9 stated that this occurrence has increased the need to provide additional care to his wife and that the summer roster makes this very difficult. c) Streets argued that, whilst extending their sympathies to Employee 9, he is a very valuable employee and that the nett effect of the roster, in relation to the number of shifts to be worked, remains the same as the current roster. [27] Whilst sympathetic to the personal circumstances of Employee 9, I find that his situation is not caused or related to the introduction of the new roster. [28] Employee 10 a) Employee 10 suffers from insomnia and has argued that the new roster arrangements will exacerbate his predicament due to the short turnaround times of some shifts. b) Employee 10 also raised the problem with childcare in summer due to the shifts on a Friday night and Saturday day shift. Employee 10’s wife has an itinerant weekend business where the regularity of days is at times unknown. c) Streets submitted that this employee is a highly valued member of his team, that Streets is the primary employer and that his current wages have been guaranteed. [29] I am satisfied and find that the medical problems encountered by Employee 10, which were supported by a medical certificate, will be exacerbated by the new roster which therefore provides a justifiable reason to grant him redundancy. [30] Employee 11 a) Employee 11 claims that the new roster will cost him an extra $100 per week based on the cost of additional childcare. Also, on the basis of his wife’s employment, he will not be able to get work to when rostered to work Friday nights until 8:00pm. b) Employee 11 also raised the issue that he no longer wants to work the night shift and that he now struggles to sleep during the day leading into his night shift. c) Streets stated that Employee 11 has a high skill set and that his issues can be dealt with by a variety of possible options. [31] Whilst I am sympathetic to the issues as identified by Employee 11, I note that his wife works a rotating shift 7am – 6pm on a Monday – Friday only. I also note that his wife has an RDO every second Friday. As a result, it may be that Employee 11 only needs child care for 2 shifts per year. Streets indicated throughout the appeal process that they are -- 5 of 8 -- [2018] FWC 752 6 prepared to sit down and discuss individual issue with employees in order to achieve a satisfactory and workable outcome. I find that Employee 11 does not satisfy the compassionate grounds criteria to justify granting Employee 11 a redundancy. [32] Employee 12 a) Employee 12 is disappointed not to have been offered the voluntary redundancy on the basis that he is a hardworking and diligent employee whom Streets want to keep whilst poorly performing employees have been rewarded with a redundancy package. b) Employee 12 also states that the summer roster will have an adverse impact on his golf and that he currently does not work on Saturdays for this very reason. c) Streets submitted that Employee 12 is a vital member of his department moving forward and that the change of roster affects purely a leisure activity. [33] Whilst understanding and acknowledging Employee 12’s passion for golf, I find that this reason does not satisfy the compassionate criteria to result in a successful appeal. [34] Employee 13 a) Employee 13 has a significant insomnia issue where he is sleeping only a negligible number of hours after working a night shift. b) Employee 13 provided medical advice in relation to his back problem (3 bulging discs) which has been exacerbated due to the shorter and fewer breaks built into the roster, to the extent that he now requires regular medical treatment to live his normal life. c) Employee 13 also raised the issue of his heavy lifting workload increasing exponentially due to the reduced manning levels in his area. This change will also have ramifications on his back. d) Streets argued that Employee 13 is a highly skilled member of staff. Streets offered the Employee Assistance Program (EAP) in relation to his sleep issues but stated the change in the shift pattern was not the cause of his sleep problem. [35] I am satisfied that the new roster arrangements and the reduction in the workforce is going to have a significantly detrimental effect on Employee 13’s health. The new meal breaks have already increased his need to seek medical attention. This need will increase when he is required to work the summer roster. I find that Employee 13’s health issues justify granting his redundancy on compassionate grounds. -- 6 of 8 -- [2018] FWC 752 7 [36] Employee 14 a) Employee 14 has real concerns with the new shift pattern, in particular, the transfer of night shift to day shift in 36 hours. Employee 14 is concerned that his body will not cope with this adjustment. b) Streets advised that Employee 14 is a valued and skilled member of staff. Further, Streets highlighted that over a 12 month period, the number of day shifts and night shifts are the same as the current roster. [37] Whilst I understand Employee 14’s concerns I am confident that, over time, his concerns about the effects of the new roster on his body will dissipate. I find that Employee 14 does not satisfy the requirements to be granted a redundancy. [38] Employee 15 a) Employee 15 suffers from a high degree of ongoing anxiety which she claims has been exacerbated by the local issues over the last 12 months. Further, the anxiety and migraines that are suffered have been aggravated by the pending roster changes. b) Streets submitted that the EAP is available and encouraged Employee 15 to utilize this service. Further, that they did not accept that the changes to the Agreement have impacted on the current medical condition. [39] Whilst it is impossible not to be sympathetic to Employee 15’s current state of health, I find that this condition has not been caused by the pending roster changes. However, I would strongly recommend that Employee 15 takes up Streets’ offer of assistance through the EAP. Conclusion [40] It is unfortunate when an employer’s request for expressions of interest for voluntary redundancy is over subscribed. Unsuccessful candidates justifiably feel disappointed. In this circumstance, one large benefit, is that the unsuccessful candidates are maintaining a well paid job in a modern and clean working environment. Those unsuccessful candidates can also take pride that Streets see them as valued employees who can assist in making the Minto plant more efficient, competitive and profitable. [41] Whilst sympathetic to all of the 15 employees who have appealed the initial review, I find that, based on the compassionate criteria in relation to the introduction of the new shift roster, employees 1, 2, 6, 8, 10 and 13 are to be offered voluntary redundancy. [42] I so Order. COMMISSIONER -- 7 of 8 -- [2018] FWC 752 8 Printed by authority of the Commonwealth Government Printer <AE426321 PR600123> 1 AE426321. -- 8 of 8 --