s.739 - Dispute resolution

Vicki Sirgiannis, Sam Abdelahad, Michelle Gardam, Sarah Lynch, Eva Spinoso, Stephen Duncan

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]

• [1] Ms Vicki Sirgiannis, Mr Sam Abdelahad, Ms Michelle Gardam, Ms Sarah Lynch, Ms Eva Spinoso and Mr Stephen Duncan (Applicants) have lodged an application for the Fair Work Commission (Commission) to deal with a dispute pursuant to s.739 of the Fair Work Act 2009 (the Act).

• [2] This is a dispute about whether the Applicants can have the Commission determine a dispute about the terms of a roster.

• [3] The applicant's employment terms are covered by the Home@Scope Disability Services Enterprise Agreement Victoria 2022-2025 (the Agreement).

• [4] Under the terms of the Agreement the parties have set out their agreement in relation to the types of employment; the process for changing of rosters; factors to be considered in a review of roster patterns and the settlement of disputes between the parties about the terms of the Agreement.

• [5] The parties are in dispute about these provisions.

• [6] In October 2024, Home At Scope (Respondent) indicated its intention to undertake a review of the roster patterns at its 3 Andrew Street facility where the each of the Applicants work.

• [7] 3 Andrew Street is a Group Home providing "live in" care and support to disabled residents operated by the Respondent for their clients, families and community care. Each of the Applicants work for the Respondent at 3 Andrew Street.

• [8] The Respondent's position is that it has initiated a Roster Review because its circumstances and those of its clients have changed necessitating changes to the way it rosters employees to provide services to residents. Acting on these requirements, Home At Scope's case is that it has taken steps to comply with its obligations under the Agreement about roster requirements and roster changes, including engaging in genuine consultation with relevant employees and their representatives in advance of any final decision about a new roster.

• [9] In addition, Home At Scope submits that it has not yet made a final decision in relation to the Roster Review it initiated at 3 Andrew Street and that it has not taken steps to end the consultation period or provided the required notice for the applicants to commence working a new roster.[1]

• [10] The Respondent also submits that the Applicants have failed to follow the steps required by the Agreement for the Commission to have power to arbitrate this dispute.

• [11] The Applicants' position is that Home At Scope have not met the requirements of the Agreement in relation to roster requirements and roster changes and that they have not been genuinely consulted with as part of this process. The Applicants maintain the changes to the roster proposed by the Respondent are also inconsistent with the terms of the Agreement.

• [12] Further, the Applicants submit they have complied with the requirements of the dispute procedure for the Commission to arbitrate this dispute. They ask that the Commission do so by confirming their existing roster remains in place, and that the review initiated by the Respondent is brought an end.[2]

• [13] The Applicants filed their application with the Commission on 14 October 2024.

• [14] The dispute was initially allocated to Commissioner Fox who conducted several conciliation conferences with the parties, seeking to assist in the settlement of the matters of dispute between them. Ultimately, the parties were unable to reach an agreement at conciliation. Subsequently, the Applicants requested the Commission determine their application by arbitration.

• [15] Given Commissioner Fox's exercise of conciliation powers in relation to the dispute, the parties objected to the Commissioner determining the matter, consistent with the terms of clause 14.8(b) of the Agreement. Accordingly, the matter was allocated to my Chambers for determination on 12 February 2025.

• [16] On receipt of the application, I engaged with the parties on the questions to be determined. The parties are also in dispute about the nature of their discussions during the conciliation process. In particular, the Applicants object to the Respondent pressing its jurisdictional objection that the Commission does not have the power to arbitrate the dispute.

• [17] The applicants maintain they have been genuinely participating in the process of conciliation to settle this dispute with the assistance of the Commission. They maintain that the Respondent indicated they were proceeding on the same basis.

• [18] Now that conciliation has failed, they seek that the Commission arbitrate the substance of their dispute and not entertain the Respondent's jurisdictional objection given it was not pressed at conciliation.

• [19] The Respondent does not accept it did not press its jurisdictional objection at Conciliation but maintains they participated in the conciliation process on a genuine basis in the hope of resolving the dispute. In circumstances that conciliation has failed and that the Applicant seeks the Commission arbitrate the dispute, the Respondent submits its objection must be considered prior to an exercise of the arbitral powers of the Commission.

• [20] It is well established by this Commission that process of conciliation are conducted confidentially and without prejudice. It is also well established that positions prior to conciliation are "preserved" and can be returned to and properly determined in the event a conciliation process fails, when pressed. In this case, the Applicants have exercised their right to seek that the Commission arbitrates the dispute in their favour. The Respondent is equally entitled to seek the Commission properly consider its objection, lest the Commission fall into error.

• [21] Consistent with these principals, after considering the views of the parties and the failure to agree on the questions to be determined, I issued directions for the filing of evidence and submissions on the questions to be determined in this dispute as follows:

1. Have the requirements of clause 14 been met, such that the Commission's powers to arbitrate this dispute have been enlivened?

1. Have the terms of clauses 28.1 and 29.2 been complied with in relation to the Andrew Street Roster Review initiated by the Respondent on 4th October 2024?

• [22] To assist in the determination of this matter, an in person hearing was convened in Melbourne on 12 May 2025. In advance of the proceedings, a digital court book (DCB) comprising all material filed and relied upon in the proceedings was circulated to the parties. The DCB was accepted into evidence in its entirety at the commencement of the hearing.

• [23] In the proceedings, the Applicant was represented by Mr Andrew Thompson who made written and oral submissions to the Commission. The Applicants' case was supported by witness statements and sworn evidence of Mr Abdelahad, Ms Lynch, Ms Spinoso, Ms Gardam and Ms Sirgiannis.

• [24] Mr Stuart Miller represented the Respondent. The Respondent's case was supported by the witness statements and sworn evidence of Ms Phillips, Ms Fischer and Mr Vidorin.

• [25] For the reasons set out below, I am satisfied that the answer to the first question is NO and that the Commission does not have jurisdiction to arbitrate the dispute. This being the case, while it not necessary for me to determine the second question, for completeness I am satisfied that the answer to this question is YES.

• [26] For the reasons set out below, the application is dismissed.

• [27] Clause 14 of the Agreement sets out the parties' agreement for the settlement of disputes between them about matters arising under the Agreement, or the NES, other than termination of employment.[3]

• [28] Relevantly, the terms of clause 14 provide as follows:

14.1(c) The Employer or an Employee covered by this Agreement may choose to be represented at any stage by a representative, including a union representative or Employer's organisation.

14.2(a) The parties to the dispute or grievance, and their representatives, must genuinely attempt to resolve the dispute or grievance through the processes set out in this clause and must cooperate to ensure that these processes are carried out expeditiously.

(a) The dispute or grievance must first be discussed by the aggrieved Employee(s) with the immediate supervisor of the Employee(s).

(b) If the matter is not settled, the Employee(s) can require that the matter be discussed with another representative of the Employer appointed for the purposes of this procedure.

(a) The parties covered by the agreement acknowledge that disputes of a collective character concerning more than one Employee may be dealt with more expeditiously by an early reference to FWC.

(b) No dispute of a collective character may be referred to FWC directly unless there has been a genuine attempt to resolve the dispute at the workplace level prior to it being referred to FWC.

(a) If the dispute or grievance has not been settled when conciliation has been completed, either party may request that FWC proceeds to determine the dispute or grievance by arbitration.

• [29] The Respondent submits that the requirements of neither clauses 14.4 nor 14.6(b) of the dispute settlement procedure have been followed such that the powers of the Commission have not been enlivened. Their evidence is that the first the Respondent became aware they were in dispute with the Applicants in relation to the Roster Review at 3 Andrew House was on 14 October 2024 when the Respondents received a copy of the F10 application form filed by Mr Thompson.

• [30] Their position is that none of the individual applicants or their representative, Mr Thompson, raised a dispute about the Roster Review prior to making this application to the Commission for the determination of the dispute. On this basis, the Respondent maintains the preliminary requirements for the Commission to arbitrate the dispute have not been met and that consistent with the established authorities of the Commission, the application must be dismissed.[4]

• [31] The Respondent's consistent evidence is that they engaged in genuine discussions with the affected employees of 3 Andrew Street, including the Applicants, as part of a formal review into the rosters on site. The Respondent's unchallenged evidence is that these discussions were challenging and that they were presented with several objections and concerns by the Applicants during the consultation process.

• [32] By way of background, the Respondent had previously commenced an initial Roster Review that was formally commenced on 20 September 2023 and discontinued on 16 January 2024. The Respondent acknowledges that the Applicants were represented by HACSU during this review process and that HACSU disputed the elements of the proposed roster as part of this initial review.[5]

• [33] Included in the Applicants' F10 application were a series of emails sent by HACSU representatives on behalf of the members at 3 Andrews Street, which included the Applicants, that they were representing in relation to the Roster Review underway at the time. Relevantly, these emails provide as follows:

"6 November 2023

From: AngelaC@hacsu.asn.au to

CHughes@scopeaust.org.au

"Hi all,

In follow up from our meeting last week I wish to confirm the following discussions in relation to Andrew St roster review:

• There is a dispute about the necessity of a 3rd person in the mornings and afternoons. There is no evidence that there is a need for this ratio, and to the contrary staff report that there is some evidence this would cause a level of heightened behaviour if this occurred."

..........

"4 October 2023

From: mohamudi@hascu.asn.au to

CHughes@scopeaust.org.au

Hi Callum and Antonella

...

Staff have shared with me that Andrew Street has operated successfully on a 2 staff, 6 roster model for over 30 years. There has been no change to client need that would justify the permanent addition of a 3rd staff member on the roster.

Collective

Staff dispute the need for an additional 217 hours proposed in this roster.

• [34] As part of its consideration of these concerns, the Respondent's evidence is that they advised the Applicants and HACSU that the review initiated on 20 September 2023 would not continue but would be held on a later date.

• [35] The email from the Respondent's representative, Mr Callum Hughes, advising the applicants of this decision was in the following terms:

You received formal notice on 20/09/2023**,** that 3 Andrew Street will commence the Roster Review process. We would like to inform you that this Roster Review will be held at a later date, and not continue."[6]

• [36] On 29 May 2024, Home At Scope advised the Applicants that 3 Andrew Street would shortly commence a Roster Review. Ms Phillips provided this advice to the applicants in the following terms -

"Hi All,

As you are aware, 3 Andrew Street, will shortly commence a roster review. In preparation, we are providing you with some information to read prior to the roster review consultation commencing."[7]

• [37] Mr Vidorin performed the role of HR Roster Advisor for the Respondent and was involved in review and consultations with the applicants in relation to the 3 Andrew Street Roster Review process. Mr Vidorin's evidence to the Commission included a timeline of his recollection of the consultations with 3 Andrew Street staff where he was in attendance:[8]

21/8/2023 - Pre work meeting around roster was held which showed 5 residents at 3 Andrews Street

20/09/2023 - Notification of upcoming roster review

4/10/2023 - Initial Draft roster consultation at team meeting

1/11/2023 - Draft Version 1 roster consultation at team meeting

16/01/2024 - Roster review cancelled due to client issues

29/05/2024 - Notification or recommencement of roster review

12/06/2024 - Initial draft roster consultation at team meeting

10/07/2024 - Draft version 1 roster consultation at team meeting

4/09/2024 - Draft Version 2 roster consultation at team meeting

14/10/2024 - Received notification of dispute lodged with FWC and roster review paused as status quo must remain until resolved. ...

"The roster review for 3 Andrews St whilst challenging was continuing forward as normal during the period of May till September 2024. During this period HACSU had stated there were areas of the roster they were not happy with, but this had not progressed to the point that they were considering a formal dispute, which they would usually provide us prior notice of intent around before lodgement.

It came as a surprise to receive the notification of dispute that was lodged with the Fair Work Commission on the 14th October as there had been no previous indication by staff that a dispute would be lodged.[9]

• [39] The Applicants' position is that the requirements for the dispute to be brought to the Commission for arbitration have been met. The basis of this submission is twofold. Firstly, the Applicants have individually and collectively, including through their representative HACSU, consistently raised issues of dispute with the Roster Review. Secondly, and in the alternative, this being a collective dispute the provisions of clause 14.6(b) apply, providing a right for the Applicants to make their application to the Commission in circumstance where they have engaged in genuine discussions attempting to resolve the dispute.

• [40] Each of the witnesses for the Applicant accepted in proceedings that the first time the Respondent was formally made aware they were in dispute about the Roster Review underway was when the Respondent received notice of the application from the Commission. The Respondent's position is that these concessions are fatal to the Applicants' case.

• [41] While I accept the evidence of the Applicants, I do not agree that the facts in this case support the conclusion proposed by the Respondent.

• [42] On the evidence I have set above, the Respondent was made aware of the concerns of its employees about its Roster Review, including each of the Applicants, well in advance of their receipt of Mr Thompson's F10 application form. I am satisfied that this is the case.

• [43] Furthermore, the Roster Review clearly disputed by the Applicants (through their representative, HACSU) was the same Roster Review Mr Thompson filed an F10 application form to the Commission to determine on 14 October 2024. As Mr Vidorin's evidence establishes, this review was a "continuation" of the review commenced in September 2023 that the Respondent was aware was disputed by the Applicants.

• [44] It is not in contest that Mr Thompson was not involved in representing the Applicants prior to 14 October 2024 or that he did not engage in any discussions with the Respondent on the Applicants' behalf prior to this time. Critically, however, on a plain and ordinary meaning the of words of clause 14 of the Agreement he was not required to be.

• [45] Clause 14.1(c) provides that an employee "may choose to be represented at any stage by a representative, including a union representative."

• [46] The principles of Agreement interpretation are well established[10] and recently set out by the Full Bench in Fire Rescue Victoria v Rainer Kiessling [2024] FWCFB 19 at [17] as follows[11]:

"The principles applicable to construing an enterprise agreement may be briefly stated. The task of construing such an instrument begins with a consideration of the ordinary meaning of the words, read in context, and taking into account the evident purpose of the provisions or expressions being construed. Relevant context will include other provisions of the instrument, read as a whole, and the dispute provision's place and arrangement in the instrument. The statutory framework under which the instrument is made, or in which it operates may also provide relevant context, as might an antecedent instrument or instruments from which a particular provision has been derived. Regard may be had to relevant context and surrounding circumstances to determine whether there is any ambiguity in a provision of the instrument. The language of the instrument is to be understood in the light of its industrial context and purpose, not in a vacuum or divorced from industrial realities. But context is not itself an end, and a consideration of the language contained in the text of the relevant parts of the instrument remains the starting point and the end point in the task of construction. A purposive approach to interpretation is appropriate, not a narrow or pedantic approach."

• [47] Consistent with these principles, I am satisfied that the meaning of these words is to be that the Applicants' had the right to seek to be represented by Mr Thompson at any stage in seeking the settlement of their dispute with the Respondent, including at the time of making an application to the Commission.

• [48] On this basis, given I am satisfied the evidence in this case is that the Applicants made the Respondent aware of their dispute with the Roster Review process and engaged in multiple consultation meetings, including with representatives of HACSU, in advance of filing this dispute with the Commission, these steps meet the preliminary requirements for the Commission to determine the dispute as required by clause 14 of the Agreement.

• [49] Despite this conclusion, however, it does not mean I am satisfied that the Commission has the power to arbitrate this dispute.

• [50] As the Applicants made clear in their F10 dispute application, the substance of this dispute is about the ongoing Roster Review at 3 Andrew Street as set out below:[12]

"This dispute concerns an ongoing roster review at 3 Andrew St Northcote, a Home at Scope disability group home, formerly DHHS. The Roster Review commenced in September 2023 at the initiative of management. The staff group reject the need for any significant roster changes and wish to continue working their current core roster, with no alterations and no change to total rostered hours (701.5). Staff believe that none of the EBA criteria (Clause 28.3) which activate roster changes genuinely existed at the time the review was initiated for Andrew St. in 2023, nor did they exist when the process was revived in May this year after an unexplained suspension of approximately 4 months."

• [51] The terms of the relief sought by the Applicant in the F10 were also articulated as follows:[13]

"We are seeking to maintain the current core roster (701.5 hours) as the working roster for 3 Andrew St Northcote and to terminate the roster review process for the group home."

• [52] Clause 28 of the Agreement sets out the agreement of the parties in relation to roster changes. Relevantly, the provisions are as follows:

28.1 In order to avoid disputes the parties will establish maintain and regularly review an agreed state-wide approach to roster management.

28.2 Any proposed alternations to rosters shall be subject to consultation between the Employer at local management level, affected Employees and HACSU representatives as requested and within the indicative timeframe. HACSU and affected employees will be notified and provided with the details of any proposed roster review.

28.3 Roster reviews will be required where significant changes to a core roster are required such as circumstances where existing and/or work arrangements no longer meet the needs of the client, the employer, or affected employees. They may occur where:...

28.6 Consultations discussions should be arranged subject to the following:

(a) They should occur at the team meeting unless and alternative time and place is agreed between the Employer and HACSU.

(b) That affected employees are provided with draft rosters prior to all meetings to allow for more effective consultation and streamlined feedback and consultation with HACSU

(c) That consideration will be given to the scheduling of roster review meetings to allow the Employer and HACSU adequate time to enable the resourcing of effective consultation and roster development workload

(d) That proper consideration is given, and response provided, to any matters raised by an affected employee, HACSU and/or another representative and the Employer.

28.9 At the conclusion of the consultation period and at least 14-days prior to its proposed commencement day unless otherwise agreed by the Employer and HACSU, the roster (de-identified where appropriate) will be sent to:

(c) Details of recipients and the manner of posting will be addressed in roster review process documentation.

28.10 Following the posting of a roster, an Employee, HACSU of [sic] another representative, shall if it objects to the new of [sic] altered rosters, notify the employer and FWC within seven days of the posting, or such earlier date prior to the posting, of its objections and that it requires FWC to convene an urgent hearing. The resolution of the matter shall be dealt with in accordance with the Disputes Settlement Procedure at clause 14.7, 14.8 and 14.9.

28.11 Whilst the matter is being dealt with by FWC the existing roster will continue to apply. The new roster can only come into operation once the matter is dealt with by FWC and be implemented consistent with the first roster cycle after the matter has been dealt with by FWC but not less than fourteen (14) days after resolution of the dispute.

• [53] In the proceedings, witnesses for both the Applicants and the Respondent acknowledged that the consultation process in relation to the Roster Review at 3 Andrew Street that is the subject of this dispute have not been concluded.

• [54] For example, Mr Vidorin who is Home At Scope's HR Roster Advisor and had responsibility for the review underway at St Andrews Street submitted:

"We're still in the roster review component. We haven't finalised a roster, everything is in draft format."[14]

• [55] Similarly, in response to questions from the Commission during the proceedings on the status of the Review, witnesses for the Applicant accepted the Review had yet to be finalised. Ms Sirgiannis for example had the following response[15]:

Commissioner: Help me with two questions, Ms Sirgiannis. One, the Review, as far as you understand it is still current? It's not completed? You haven't been told you're working this roster?

• [56] Ms Spinoso acknowledged the same as follows:[16]

Commissioner: So there's still a consultation - it's still under review?

Ms Spinoso: Yes, this is what I feel like, it's still a consultation.

• [57] Likewise, Ms Lynch's response was as follows:[17]

Commissioner: So there's still a live discussion potentially about what the roster may or may not be?

• [58] Mr Abdelahad said as follows:[18]

Commissioner: Your understanding of the Roster Review as it currently is, the review that was initiated in the middle of last - well, toward the end of last year, September, I think it was October, - its status? Has it been completed or otherwise, ongoing?

Mr Abdelahad: No, its ongoing.... Yet to be completed.

• [59] For the Applicants, only Ms Gardem indicated that her understanding was the last roster staff were presented with was the final roster the Respondent wanted them to work. In proceedings however, she accepted this was never communicated to her by management and it was just what she thought.[19]

• [60] For the Respondent, Ms Phillips, who was responsible for building draft rosters for the Respondent, acknowledged that she had developed a final draft of a roster that had been provided to staff. Ms Phillips evidence clarified that her job was to build the rosters and that while a final roster had been developed and proposed to staff, it had not been "posted" subject to Commission proceedings.[20]

• [61] The weight of the above evidence overwhelmingly establishes, as accepted by the Applicants, that the consultation process in relation to the Roster Review at 3 Andrews Street has not been completed. I am satisfied that this is the case.

• [62] Applying the principles of agreement interpretation as set out above, it is clear to me that the plain and ordinary meaning of the Agreement's terms in clause 28 is that before the Commission can exercise the powers of arbitration provided to it by the parties, the consultation process required by the terms of clause 28 must be at its end.

• [63] This is not the case in the circumstance of this dispute.

• [64] Because of this finding, it follows that the powers provided to the Commission by the parties in the Agreement in clause 28 and clause 14 have not been enlivened and the answer to the first question is NO.

• [65] Given the findings I have made above and consequences of this conclusion, while it is not necessary to determine the second question, I have considered the parties' submissions and make the following determinations.

• [66] Clause 28.1 of the agreement commits the Respondent to establish, maintain and regularly review an agreed state-wide approach to roster management.

• [67] Evidence for the Respondent included material setting out the process it undertakes for Roster Reviews and associated Roster Review principles.[21] Ms Phillips and Mr Vidorin's consistent evidence was that these processes were applied in relation to the 3 Andrew Street. Furthermore, Ms Ficher's unchallenged evidence is that she was responsible for the establishment and maintenance of the Respondent's state-wide approach to roster management and that this was done in consultation with staff and HACSU representatives some 3-4 years ago.[22]

• [68] The Applicant's submissions regarding the application of clause 28.1 of the Agreement was that they had no knowledge of the existence of a "state-wide approach to roster management" and in addition, that to the best of their memory they had no recollection of this approach having been mentioned or referred to in the Roster Review process they had been engaged in.[23] Evidence from the Applicants, however, did not advance this contention further.

• [69] Considering this evidence, I am satisfied that that the Respondent's witnesses present an accurate description of the facts in these circumstances. I am therefore satisfied that that clause 28.1 of the Agreement was complied with in relation to the Roster Reviews initiated regarding 3 Andrew Street.

• [70] Clause 29.2 of the Agreement provides as follows:

"(a) In reviewing roster patterns the following shall be considered:

(i) Physical care needs of residents;

(ii) Community access/recreation opportunities;

(iii) Developmental/skill maintenance programs;

(iv) Client family contact/support;

(v) The potential to incorporate team meetings;

(vi) Employee professional development and support;

(vii) Performing administrative and 'domestic' duties;

(viii) Appropriate handover opportunities and time between shifts

(ix) Rosters that are designed to balance family and working life and be mindful of burdens such as travel time, shift patterns including sleepover, in particular in relation to late finishes and early starts;

(x) A maximum shift length for all Employees of 12 hours, not including sleepovers and meal breaks;

(xi) The use of full-time employees where possible;

(xii) The potential to employe a permanent relief workforce;

(xiii) Maintenance of one house supervisor over each group home."

• [71] The Respondent submits that over an extensive period time relevant members of its management team have considered each of these factors as part of the Roster Review consultation process it was engaged in, including in the development of proposed new rosters for 3 Andrew Street.[24] The evidence of each of the Respondent's witnesses supported these submissions. I accept this evidence, which includes the direct accounts of Mr Vidorin and Ms Phillips who were directly involved on the review process and consultation team meetings with the Applicants.

• [72] Their additional evidence was that every effort was made to ensure proper consideration was given to each of the Applicants' views and concerns, in addition to ensuring all the requirements of the Agreement were being met, including the provisions of 29.2.

• [73] The Respondent's additional submissions are that as a general characterisation, the terms of the Agreement in clauses 28 and 29 relating to rosters provide a guide for Roster Reviews and factors to be considered therein. Furthermore, terms of the Agreement used in these clauses are indicative of what factors should be considered, and what "may" occur or be "appropriate" rather than being prescriptive, setting out precisely what is required to occur and be considered in any Roster Review or related consultation process.[25]

• [74] At their highest, the Applicant's submissions are that the consultation and Roster Review process undertaken by the Respondent have not been adequate.[26] Each of the Applicants' witnesses provide evidence that they did not think their concerns and proposals were properly considered. Additionally, they submit the Respondent has presented very little evidence to demonstrate their consideration of the requirements of clause 29.2. In particular, the care needs of residents, impact on employees, administrative and care needs along with a failure to account for a contrasting analysis of former supervisor Mr Michael Cole.[27]

• [75] In the proceedings, witnesses from the Applicant made clear the outcome they were seeking from the Roster Review was no, or minimal, changes to their existing roster.[28] The Respondent suggests this concession to be the substance of what this dispute is all about, that the Applicant's expectation of the outcome of a consultation process is the Respondent should agree with what they want.[29]. I do not accept this to be the case.

• [76] The overwhelming evidence in this case is that both the Applicants and the Respondents have engaged genuinely with each other throughout the consultation and review process, conciliations before the Commission and through these proceedings. This conclusion applies to my assessment of the Respondent's endeavours to comply with the requirements of clause 29.2 of the Agreement and consider the factors therein. I accept this to be the case.

• [77] True, the Applicants and the Respondent have not been able to agree on the new proposed roster for 3 Andrew Street. Yet, it is also true that the Respondent has not finalised the consultation process and made a final determination on the roster is seeks the have the Applicants work.

• [78] The answer the questions for determination are as follows:

• [79] Clearly, what follows from these proceedings rests with the Respondent. Its options are to continue and seek to finalise the Roster Review embarked upon with the Applicants or determine the process is at its end.

• [80] In the event it determines the former path, I make note of the following matters arising from these proceedings.

• [81] First, while I have been satisfied on the evidence before me that the respondent has complied with the requirements of clauses 28.1 and 29.2 with respect to the questions for determination, it is not the case the Respondent has presented voluminous first-hand material demonstrating this to be the case. Rather, I have been satisfied by the clear and consistent evidence of the Respondent witnesses of what they did, and what they considered in the review and consultation process.

• [82] Despite this being the case, it is clear from each of the Applicants' perspectives that they have not appreciated these steps and considerations. In this regard, I would recommend in future consultations and Roster Reviews, more is done to communicate and record in writing the steps taken, factors considered and rationale for determinations or proposed determinations to address this deficiency.

• [83] Secondly, as the Respondent has identified, much of the agreement of the parties with respect to roster changes and the associated process set out in clause 28 and 29 of the Agreement are indicative. That is, considering their plain and ordinary meaning consistent with the established principles for agreement interpretation, they indicate factors that may be considered or steps that should occur.

"Roster reviews will be required where significant changes to a core roster are required such as circumstances where existing and/or work arrangements no longer meet the needs to the client, the employer or affected employees. They may occur where:

(a) A client's needs have changed requiring a change to the ongoing core roster

• [85] What is clear from these terms is that it is not an obligation that Roster Reviews will only occur where client's needs have changed. Rather, a Roster Review occur may occur in this instance and that a Roster Review can also occur where significant changes to a core roster are required such as circumstances where existing and/or work arrangements no longer meet the needs to the client, the employer or affected employees.

• [86] In the present case, Home At Scope submit that recent changes in national NDIS funding and requirements have necessitated a review of its entire operations, including those at 3 Andrew Street. There has been no reason presented to support a conclusion that this is not the case.

• [87] Finally, at the conclusion of proceedings, the Applicants articulated a proposed alternative roster for 3 Andrew Street, which was developed by the Applicants.[30] I do not consider this proposal to be anything more than a genuine attempt made to resolve this dispute. I suggest it may present an obvious place for any future consultation to commence.

• [88] For the reasons set out above, the application is dismissed.

Mr Andrew Thompson of HACSU on behalf of the Applicants.

[1] See Respondent's further submissions, DCB p.146-149.

[2] See Applicants' written submissions, DCB, p.4-9.

[3] Ibid at p.14, clause 14 Dispute Settling Procedure.

[4] See Respondent's outline of submissions, DCB p.82.

[5] See HACSU email - 4 October 2023; DCB p.131.

[10] For example, see AMWU v Berri [2017] FWCFB 3005 at [114] and Fire Rescue Victoria v Rainer Kiessling [2024] FWCFB 19 at [17].

[11] [2024] FWCFB 19 at [17].

[23] Applicants written submissions, DCB p.4

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