Altus Traffic Pty Ltd

[2019] FWCA 5941

[2019] FWCA 5941

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Altus Traffic Pty Ltd
(AG2019/1753)

ALTUS TRAFFIC (NSW & ACT) ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 27 AUGUST 2019

Application for approval of the Altus Traffic (NSW & ACT) Enterprise Agreement 2019.

Introduction

[1] Altus Traffic Pty Ltd (Altus) seeks the approval of an enterprise agreement known as the Altus Traffic (NSW & ACT) Enterprise Agreement 2019 (Agreement). The application for approval of the Agreement was made pursuant to section 185 of the Fair Work Act 2009 (Act).The Agreement is a single enterprise agreement.

[2] The Australian Workers’ Union (AWU) is a bargaining representative for the Agreement.

Undertakings

[3] Altus has provided written undertakings (Undertakings) in support of its application for approval of the Agreement. A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[4] The views of each person who the Fair Work Commission (Commission) knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

[5] The AWU does not object to the Undertakings.

[6] Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

Reasons for requiring Undertaking 5 concerning shiftwork

[7] The application for approval of the Agreement was the subject of a contested hearing before the Commission on 31 July 2019. At that hearing, a range of issues were addressed, including concerns expressed by the AWU in relation to whether the better off overall test (BOOT) was satisfied and concerns expressed by employees of Altus (who remained anonymous) in a letter to the Commission dated 26 June 2019. Following the hearing, my chambers communicated my remaining concerns to Altus in relation to a range of issues identified by the AWU and the anonymous employees. Altus took up the opportunity given to it to provide additional undertakings to address my remaining concerns. Those additional undertakings form part of the Undertakings.

[8] In light of the detailed arguments put in relation to the contested issues and in particular the definition of shiftwork in the Agreement, it is appropriate that I record in this decision my reasons for accepting Undertaking 5, which relates to the definition of shiftwork. I have relied on Undertaking 5, together with the other benefits provided for in the Agreement and the Undertakings, to be satisfied that, as at the test time, that each award covered employee, and each prospective award covered employee, for the Agreement would be better off overall if the Agreement applied to the employee than if the relevant modern award applied to the employee.

[9] Altus is a significant employer in the traffic control industry. Nationally, Altus provides for and delivers more than two million hours of traffic management services each year. Altus engages approximately 1,800 employees in Australia, and provides traffic management services to more than 1,300 clients nationally, including a range of large businesses and government organisations. The services provided by Altus include traffic control, traffic control planning and permits, equipment hire, event management, training services, and engineering services. Altus provides these services to clients in a range of industries and sectors, and at various sites, across Australia. The types of contracts to which Altus is a party with its clients vary significantly. Some are multi-year contracts and some are engagements for a few weeks or even a single engagement.

[10] The Agreement covers all employees of Altus who are engaged in New South Wales or the Australian Capital Territory in any of the occupations or callings specified in Appendix A of the Agreement. Included in the coverage of the Agreement are about 450 employees of Altus who work in the classifications of traffic controller, team leader or advanced team leader (Employees). The vast majority of the Employees are casuals.

[11] Most Employees tend to work either night shifts or day work for Altus. However, on occasion, Employees will move between night shift and day work.

[12] At any given time, Altus Traffic has employees allocated to and working at various sites performing traffic management services. Altus has Employees at work 24 hours a day, seven days a week across the various sites and projects it services in NSW and the ACT. There are some projects where Altus has Employees working different shifts to provide continuous coverage on the project. On other projects, Altus only has Employees working one shift and it is not required to, and does not, provide continuous coverage on the project.

[13] The Employees are covered by the Building and Construction General On-site Award 2010 (BCG Award). As at test time, the pay rates under the Agreement were between 0% and 15.92% above the BCG Award rates of pay, depending on the classification.

[14] Clause 34 of the BCG Award governs shiftwork. It provides:

“34. Shiftwork

34.1 General building and construction and metal and engineering construction

…

(b) When an employee is employed continuously (inclusive of public holidays) for five shifts Monday to Friday, the following rates will apply:

(i) afternoon and night shift – ordinary time hourly rate plus 50%;

(ii) morning and early afternoon shifts – ordinary time hourly rate plus 25%.

…

34.2 Civil construction sector

(a) Definitions

For the purpose of this clause:

shiftwork means any system of work in which operations are being continued by the employment of a group of employees upon work on which another group had been engaged previously

day shift means any shift starting on or after 6.00 am and before 10.00 am

afternoon shift means any shift starting at or after 10.00 am and before 8.00 pm

night shift means any shift starting at or after 8.00 pm and before 6.00 am

rostered shift means a shift of which the employee concerned has had at least 48 hours notice

(b) Roster

Shifts must be worked according to a roster which will:

(i) provide for rotation of shifts unless all the employees concerned agree otherwise;

(ii) provide for not more than eight shifts to be worked in any nine consecutive days; and

(iii) specify the commencing and finishing times of each shift.

(c) Ordinary hours

(i) The ordinary hours of work for shiftworkers will not exceed an average of 38 per week over a cycle of two, three or four weeks.

…

(i) Overtime

All time worked by a shiftworker in excess of or outside the ordinary hours (inclusive of time worked for accrual purposes), or on a shift other than a rostered shift, must be paid for at the rate of double time. Provided that this will not apply when the overtime is worked by arrangements between the employees themselves or for the purpose of effecting the customary rotation of shifts.

(j) Shift allowances

A shiftworker whilst on afternoon or night shift other than on a Saturday, Sunday or holiday must be paid their ordinary time hourly rate plus 15%...”

[15] There is no dispute that the Employees work in the civil construction sector, as defined in the BCG Award. There is also no dispute that if an Employee works ordinary hours outside the range of 7:00am (or 6:00am if Employees agree) to 6:00pm from Monday to Friday, but the definition of shiftwork in clause 34.2(a) of the BCG Award is not met, then the Employee is entitled under the BCG Award to overtime rates of pay for such hours. 1

[16] Clause 11 of the Agreement governs ordinary hours of work and shiftwork. It contains numerous cross referencing errors and provides:

“11.1 Ordinary hours of work

a) The span of ordinary hours of work will be a maximum of 38 hours per week and a maximum of 8 ordinary hours per day.

b) The span of ordinary hours can be worked between 6.00am and 6.00pm Monday to Friday (or between 6.00pm and 6.00am Monday to Friday in the event that clause 12.2 applies).

c) Day shift is defined as any shift starting on or after 6.00am and prior to 10.00am.

d) Afternoon shift is defined as any shift starting on or after 10.00am and before 6.00pm.

e) Night shift is defined as any shift starting on or after 6.00pm and before 6.00am.

f) The parties acknowledge that whilst the company will endeavour to provide advanced notification of work, due to the nature of the traffic control industry:

i. Employees will usually only be notified on the previous day of the next day’s start and finish times; and

ii. Start and finish times may vary on short notice.

11.2 Night Work

a) An Employee may be engaged to perform work between the hours of 6.00pm and 6.00am (“Night Work”).

a. Short Term Night Work

i. Full-time and part-time employees engaged on intermittent Night Work will be paid a 50% shift loading on top of the ordinary rate for their classification for each ordinary hour of work.

ii. Casual employees engaged on short term Night Work (less than 5 consecutive nights) will be a 50% shift loading on top of the ordinary rate for their classification, for each ordinary hour of work, in addition to the casual loading of 25%

b. Long Term Night Work

i. Where a full-time and part-time employee is designated as only working Night Work, the Employee will be paid a 30% loading on top of the ordinary rate for their classification, for each ordinary hour of work.

ii. Where a casual Employee is designated as only working Night Work, the Employee will be paid a 30% loading on top of the ordinary rate for their classification, for each ordinary hour of work, in addition to the casual loading of 25%.

b. The provisions of clauses 12.1 and 12.3 will also apply to Night Work.

…

13.4 Overtime

a. Any hours worked outside the span and number of ordinary hours set out in clause 12.1 will be considered to be overtime.

b. Any overtime performed outside the hours of 6am to 6pm (that is not considered to be Night Work) will be paid at time and a half for the first two hours and double time thereafter…”

[17] The AWU submitted that some of the Employees do not work shiftwork within the meaning of clause 34.2(a) of the BCG Award because they work on sites or projects in which operations are not being continued by the employment of a group of employees on work on which another group had been previously engaged. By way of example, the AWU submitted that “an urgent call-out to provide traffic management in relation to roadwork for a single night could not be said to constitute part of any system of work in which operations were being continued by a group of employees on work on which another group had been engaged previously. It cannot be said to form part of a rotation of shifts in relation to common work as the definition requires”. The AWU went on to contend that Altus should give an undertaking to ensure that where a site or project is not operating on a roster system with two consecutive (defined) shifts, overtime is payable for all work undertaken outside the span of day work. The AWU acknowledged that its submissions in relation to the proper construction of clause 34.2(a) of the BCG were, in part, contrary to the view expressed by Commissioner Hampton about those provisions in Retro Traffic Pty Ltd (Retro). 2

[18] Altus submitted, on the basis of unchallenged evidence given by Mr Grant Whyte, Altus’s Executive General Manager – Staff Engagement, that Altus:

• operates a roster system, whereby employees are scheduled to perform work across its operations servicing more than one client;

• provides traffic management and related services to clients across NSW and ACT at any given time, day or night, on any day of the week;

• in some instances, may have continuous shifts of employees at one given site performing traffic management services; and

• otherwise, will likely have employees performing traffic management services at any given time at any of its various sites and projects that it operates across NSW and the ACT.

[19] Altus went on to submit that it operates a shiftwork system within the meaning of clause 34.2(a) of the BCG Award. In making this submission, Altus relied on the fact that its circumstances are analogous to those considered by Commissioner Hampton in Retro, and therefore the same analysis should be adopted in this matter in relation to the shiftwork objection.

[20] In Retro, Commissioner Hampton, on remittal from a Full Bench 3 (of which the Commissioner was a member), gave detailed consideration to the proper construction of clause 34.2 of the BCG Award. The objection which gave rise to the Commissioner’s consideration of clause 34.2 of the BCG was summarised in the following way:4

“The shiftwork objection - in some cases, workplaces covered by the Agreement would not fall within the scope of the shiftwork provisions of the Award. This in turn was founded on the proposition by the AWU that the shiftwork provisions of the Award, as applicable to the civil construction industry (clause 33 and associated provisions), require that there be a system of work where shift employees were followed by other shift employees at the work site or project concerned. This meant that the Agreement does not provide the necessary distinction between day workers and shift workers, thereby allowing Retro to pay the shiftwork loading instead of overtime rates to employees who would not be considered shiftworkers under the Award. Retro contends, in effect, that the shiftwork provisions of the Award are the appropriate comparator for the night shift/work for the purposes of the BOOT.”

[21] The Commissioner gave detailed and careful consideration to the shiftwork objection in paragraphs [36] to [61] of Retro [footnotes omitted]:

“4. Consideration of the shiftwork objection

[36] The BOOT requires a global comparison between the Agreement and the Award, when applied in the context of the operations of Retro. This is the limited context in which the dispute about the proper application of the shiftwork provisions of the Award has arisen, rather than a direct dispute about whether the approach to hours of work and shiftwork in the Agreement, or Retro’s operations, are of themselves consistent with the Award.

[37] It is common ground between the parties that the Commission should apply the approach to construction of the Award by applying the principles outlined for the interpretation of industrial agreements as recently set out by a Full Court of the Federal Court in WorkPac Pty Ltd v Skene:

“The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”. The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.” (citations omitted)

[38] These principles were cited with approval by Rangiah J with regard to awards in Swissport Australia Pty Ltd v Australian Municipal Administrative Clerical and Services Union (No 3).

[39] As a result, it is important to consider the entire shiftwork provisions of the Award (and the Agreement) when ascertaining the objective intention. The analysis of the individual provisions, and their placement and context, are elements of that overall consideration.

[40] I add that to the extent that Retro seeks to rely upon previous enterprise agreements in which the AWU was a party (or at least covered by the instrument) apparently applying the approach evident in this Agreement, I do not consider that such carries any weight for present purposes. Unless the Commission has expressly considered the issue, these are no assistance in the proper application of the Award or this Agreement for present purposes.

[41] The industrial context for the Award includes that it applies to building construction and maintenance, engineering construction, and civil construction sectors. Retro operates in the civil construction sector and traffic control operations of that kind are expressly included in the relevant scope. There are different shiftwork provisions in the Award and the civil construction provisions in clause 34.2 of the Award are fundamentally drawn from the former Australian Workers' Union Construction and Maintenance Award 2002. The civil construction sector includes coverage of a wide variety of businesses and operations and includes construction, repair, maintenance and demolition of civil and/or mechanical engineering projects and other structures and facilities, and the associated activities.

[42] It is also notorious that the civil construction sector includes major projects and smaller works and that each is likely to involve multiple employers who may come and go from the project as the various stages are undertaken. This includes certain contactors, including testers, batch plants and, relevantly, traffic maintenance. These, and many other trades and services, are also likely to involve employees who are allocated to a variety of projects and jobs at any one time. Retro is a good example of this. The provisions of the Award must in my view be assessed having regard to the nature of the industry that it seeks to cover.

[43] The evident purpose of the shiftwork provisions of the Award is to provide a system of work (rostering and payments) outside of the normal parameters of the ordinary hours specified in clause 33. That is, a system whereby employees may be rostered to work at various times in ordinary time, with additional payments and some other parameters which reflect the disutility of that work.

[44] I turn to consider the ordinary meaning of the words of the Award in that context. These have been set out earlier in this decision. This includes a definition of shiftwork and definition of day, afternoon and night shifts (clause 34.2(a)) and various entitlements and parameters.

[45] Shiftwork is defined in clause 34.2(a) as being “any system of work in which the operations are being continued by a group of employees.”(emphasis added) Unless there are contextual or express reasons to read this expression narrowly, I do not consider that I should do so. Indeed, these considerations support a broad reading of the provisions and for reasons outlined below, it would seem to me that this definition is capable of contemplating various systems of work where there are one or more shifts (as defined) and other systems where the operations in a general sense are continued by or from a group of employees who are not shiftworkers as defined.

[46] In AMWU v CBI, the Deputy President was dealing with the proper interpretation of an enterprise agreement which contained the following shift work definitions:

“18.13 Shift Work

18.13.1 Definitions:

18.13.1.1 "Shift work" means any system of work in which operations are being continued by a group of Employees upon work on which another group had been engaged previously and where Employees work either a Day shift, Afternoon shift or Night shift.

18.13.1.2 "Day shift" means any shift starting on or after 6.00am and before 10.00am.

18.13.1.3 "Afternoon shift" means any shift starting at or after 10.00am and before 8.00pm.

18.13.1.4 "Night shift" means any shift starting at or after 8.00pm and finishing at or after 8.00am.

18.13.2 Employees (other than those under the age of 18 years) agree to work shift work when required by the Company.

18.13.2.1 The Company must give an Employee 48 hours' notice of its intention to introduce shift work. The notice will include the intended start and finish times of each shift. Less than 48 hours' notice may be given if there are safety or emergency requirements.

18.13.2.2 The Company may vary shift rosters. Subject to providing Employees with 48 hours' notice of its intention, the Company may transfer shift work to or from non-shift work to shift work, and from one shift cycle to another.

18.13.3 Other than for work on a public holiday, the rate of pay for shift work (afternoon or night) shall be as follows:

18.13.3.1 200% of the applicable Ordinary Rate for that Employee's classification.”

[47] One of the two issues determined by the Commission in that case concerned whether the introduction of an afternoon shift meant that some day workers became “Day Shift” workers for the purposes of clause 18.13 of that enterprise agreement. The Deputy President found:

“[44] The proposition advanced by the AMWU is not supported by the text of clause 18.13. To begin with clause 18.13 makes no reference to one class of worker interfacing with another. Clause 18.13.1.1 defines ‘shift work’ as:

‘…any system of work in which operations are being continued by a group of Employees upon work on which another group had been engaged previously and where Employees work either a Day shift, Afternoon shift or Night shift’.

[45] That a day worker interfaces with an afternoon shift worker is beside the point and has no bearing on whether an employee is properly described as a day shift worker. To state the obvious, before there can be shift work, shift work must be required by CBI. That CBI has introduced an afternoon shift does not mean it requires a day shift instead of or in addition to day work. Secondly, though not free from doubt, it seems to me that the reference to ‘Employees’ where last appearing, is a reference to the ‘group of Employees’ first mentioned in the definition and not ‘another group’ who had been engaged previously on work. Thirdly, the reference in the definition to ‘operations are being continued’ is equally able to apply to a situation where the employer operates only an afternoon shift in conjunction with day work, as it is to a situation where three shifts, namely day, afternoon and night, are in operation.

[46] With the introduction of the afternoon shift, the group of employees who work the afternoon shift are participating in a system of work in which CBI’s operations at the construction site are being continued by that group of employees on work on which day workers have been engaged previously. That this is so does not result in the day workers either generally or those whose work might interface with an afternoon shift worker, becoming a day shift worker.”

[48] I consider that this approach is applicable to the present controversy. Of course, the full context and different terms of the enterprise agreement must be considered. However, if anything, the definition of shiftwork under the agreement being considered in AMWU v CBI, with its reference to “Day”, “Afternoon” and “Night” shift directly within the definition of shiftwork itself (which is not present in the Award), is more consistent with approach urged upon the Commission by the AWU in this matter.

[49] I accept that clause 34.2(b)(i) of the Award contemplates that the roster must provide for the rotation of shifts unless all of the employees concerned agree otherwise, is more consistent with the notion that the system of work in intended to involve defined shifts of work. However, the shiftwork provisions also expressly contemplate non-rotational shiftwork (clause 34.2(n)) and I note that the Agreement adopts the higher penalty specified by the Award (30 %) for all of its night shift work. The loss of an individual right to elect for the non-rotational shift system under the Agreement is however an issue relevant to the BOOT.

[50] I consider that it is possible for a night shift to be worked under the shiftwork provisions of the Award where the system of work involves operations that are being continued by a group of workers who may be shift or day workers.

[51] For many of the employees covered by the Agreement performing night shift where their worksites involve the continued operations of work by Retro employees at that same site, the above finding is sufficient to mean that the appropriate comparison from the Award for the night shift/work employees is the night shift provisions of the Award. However, there are some sites and projects where the night shift under the Agreement is performed without, in each case, following the work of other Retro employees at that particular work site.

[52] This leads to the second and related aspect; namely, whether the system of work contemplated by clause 34.2 of the Award must have only a site or project focus as contended by the AWU, or a broader operational “enterprise” focus as contended by Retro.

[53] The evidence reveals that at any one point in time during the working week, Retro has employees allocated to various work sites conducting the operations of traffic control. Given the involvement in many major projects, it is likely to always be the case that Retro employees are undertaking work on operations at times that follow the work of others, albeit sometimes at a different work site. Employees may also be sent from one site or project to another (with the appropriate notice or an additional penalty under the Agreement). The question is whether this can be considered to be a system of work in which the operations are being continued by a group of employees in the sense contemplated by clause 34.2(a) of the Award?

[54] Although the Award covers on-site construction work it applies to the employers and employees award in that industry and given the nature of the industry and its express coverage of traffic control operations, the very nature of those operations should be taken into account. That is, the operations of Retro are to supply services and employees across multiple worksites and projects. I consider that the Award contemplates that coverage and those circumstances, and the assessment of clause 34.2 must be made in that context.

[55] Subject to one point of clarification, it is also tolerably clear from the terms of the Agreement and the revised undertakings that there is a roster system in place for the night shift employees. This includes the requirement to roster night shift/work employees and the other roster parameters in clause 8.2 of the Agreement and in the undertakings.

[56] As a result, in the context of the particular operations of Retro, I consider that the night shift/work contemplated by the Agreement should be assessed for the purposes of the BOOT in the context of the (night) shiftwork provisions of the Award.

[57] I note that in the event that an afternoon shift was introduced by Retro under the terms of the Agreement, clause 8.1.3 of the Agreement calls up the relevant provisions of the Award. Employees in that context would be better off overall due to the other more beneficial provision of the Agreement that would continue to operate in conjunction with those shift provisions.

5. Conclusions and disposition of the matter

[58] It is common ground that all of the other requirements of the FW Act for the approval of the Agreement have been met. The remaining issue was satisfaction of the BOOT. It is also common ground that the shift notice and shift pattern objections that arise as part of the BOOT have been adequately dealt with by the revised undertakings. The shiftwork objection however remains a significant potential hurdle to the approval of the Agreement.

[59] For reasons outlined above, I consider that night shift/work contemplated by the Agreement should be assessed for the purposes of the BOOT in the context of the (night) shiftwork provisions of the Award. In that context, the indication given by Retro during the hearing of this matter - that where a day work employee was rostered to work on a night shift/work, they would be paid at overtime rates - is an important confirmation that a proper shift roster system will be in place so as to mean that the Award shift provisions remain the appropriate comparator and that the employees concerned are better off overall with the approval of the Agreement. My provisional view is that an additional undertaking confirming Retro’s intention in that regard, when considered in the context of the existing revised undertakings and the terms of the Agreement more generally, would not result in substantial changes to the Agreement and no employee would be disadvantaged or suffer financial detriment.

[60] Subject to receiving an undertaking addressing that issue, and having regard to all of the remuneration and conditions of the Agreement and the Award, I would be satisfied that all employees (including those working on night shift/work) will be better off overall with the approval of the Agreement. This includes the various features of the Agreement as identified (in summary form) in the Appeal Decision and the additional factors identified in this decision concerning the night shift/work arrangements under the Agreement, including the defined non-rotational basis for the shiftwork.

[61] It is appropriate that I provide Retro with an opportunity to provide the additional undertaking (in the required form) and to allow the AWU and the other employee bargaining representative to comment on any such undertaking. Subject to consideration of those matters, I would intend to finally determine this application as a matter of some priority.”

[22] At the hearing, counsel for Altus, Mr Follett, accepted that if I did not agree with Altus’s submissions concerning the proper interpretation of the definition of shiftwork in clause 34.2(a) of the BCG Award, then the Agreement would not pass the BOOT. That is because, as was the case in Retro, 5 if Employees do not work shiftwork as defined in clause 34.2(a) of the BCG Award, then all work outside of day work (6:00am to 6:00pm on weekdays) would be treated as overtime under the BCG Award, whereas under the Agreement such work would be subject to a 30% or 50% Night Shift loading, which would not be sufficient, despite other beneficial provisions in the Agreement, to ensure that all Employees would be better off overall under the Agreement compared to the BCG Award.

[23] I agree with Commissioner Hampton’s decision in Retro insofar as it concerns the principles which must be applied in construing the BCG Award, 6 the industrial context for the BCG Award including the nature of the industry it covers,7 the purpose of the shiftwork provisions of the BCG Award,8 and the fact that it is possible for a night shift to be worked under the shiftwork provisions of the BCG Award where the system of work involves operations that are being continued by a group of workers who may be shift of day workers.9 I have, however, with respect, come to a different view to that reached by Commissioner Hampton in relation to the proper construction of the word “work” in the definition of shiftwork found in clause 34.2(a) of the BCG Award. Commissioner Hampton held the “system of work” contemplated by clause 34.2(a) of the BCG Award may have an “enterprise” focus, rather than a site or project focus.10

[24] As is the case with Altus:

• Retro had some sites and projects where its employees worked a single shift (night shift) and no other Retro employees worked on that site or project at any other time of the day (ie before night shift started or after night shift concluded);

• Retro had other sites and projects where its employees worked across 24 hours of the day, with one shift of employees immediately followed on the work of other Retro employees on the same site or project; and

• looking across the whole of its enterprise, it was likely to always be the case that Retro employees would be undertaking work on operations at times that follow the work of others, albeit sometimes at a different work site. 11

[25] Applying this whole of “enterprise” focus to the meaning of “work”, Commissioner Hampton concluded that Retro’s employees working on night shift were working shiftwork within the meaning of clause 34.2(a) of the BCG Award, even though they may be working on sites or projects where the activities they were undertaking at the site or project were not continued, either by them on night shift or by another group of Retro employees on day work following their night work.

[26] Part of definition of shiftwork in clause 34.2(a) of the BCG Award requires that there be a “system of work in which operations are being continued”. There is no doubt that both Retro and Altus have a system of work, which involves contracts with clients for the provision of traffic management services and the offering and acceptance of shifts by employees to work on those contracts. Further, both Retro and Altus have a “system of work in which operations are being continued”, because their operations consist of the provision of traffic management services and those operations continue, across their enterprises, throughout 24 hours of the day. However, the definition of shiftwork is not satisfied merely by having a “system of work in which operations are being continued”. The operations must be continued “by the employment of a group of employees upon work on which another group had been engaged previously” [emphasis added]. It follows that the “work” which one group of employees undertakes must be the same “work” as the other group of employees had been engaged in previously.

[27] The word “work” has a variety of ordinary meanings, including “a task or undertaking”, “productive or operative activity”, and “employment; a job, especially that by which one earns a living”. 12 The context in which the word “work” is used in the definition of shiftwork in clause 34.2(a) of the BCG Award is, as always, significant. In particular, the reference to “a group of employees” having “been engaged” “upon work” which “another group” of employees is then engaged in order to continue the employer’s operations suggests that the “work” contemplated by the definition is “a task or undertaking”, as opposed to the general activity of performing traffic control services or the general job of a traffic controller.

[28] The point may be demonstrated by way of an example. If on any given day Altus had one group of traffic controllers working on a particular project for one of its clients in, say, Canberra on day work only and another group of traffic controllers working on a particular project for another client in, say, Byron Bay on afternoon or night shift only, then (assuming Altus did not have any other employees working different shifts on either the Canberra project or the Byron Bay project), would it be correct to say that the Altus traffic controllers working on the Byron Bay project were engaged on the same work as the Altus traffic controllers working on the Canberra project. I think not. If the work is undertaken on the same site, the same project, or possibly on different sites but for the same client under the same contract, then the definition of shiftwork may be satisfied, but work on different sites and projects, for different clients, could not, in my view, properly be regarded as the continuation of operations “by the employment of a group of employees upon work on which another group had been engaged previously”.

[29] There are two further points which tell in favour of this construction of the definition of shiftwork in clause 34.2(a) of the BCG Award. First, clause 34.2(b) of the BCG Award provides that “shifts must be worked according to a roster which will provide for rotation of shifts unless all the employees concerned agree otherwise”. The requirement for there to be a rotation of shifts, absent agreement by all employees concerned, suggests the shiftwork being contemplated by clause 34.2 of the BCG Award is shiftwork at one site, on one project, or (possibly) for one client. Further, the requirement that there be a roster which, absent agreement by all employees concerned, provides for rotation of shifts must be viewed in the context of a relatively low shift allowance of 15% for shiftworkers “whilst on afternoon or night shift other than on a Saturday, Sunday or holiday”. 13 The purpose of a shiftwork allowance is to compensate an employee for the disutility associated with working afternoon or night shift. The level of disutility associated with shiftwork is, at least on one view, lower when the shiftworker has a right to work according to a roster which provides for rotation of shifts (absent agreement otherwise), because the shiftworker is not “stuck” on the one shift. By comparison to the 15% shift allowance for shiftworkers in the civil construction sector, the shiftwork allowance for employees covered by the BCG Award but who work in the general and building construction and metal and engineering sectors is 50% for afternoon and night shift from Monday to Friday and 25% for morning and early afternoon shifts from Monday to Friday.14 There is no requirement in the BCG Award for the roster applicable to shiftworkers in the general and building construction and metal and engineering sectors to provide for the rotation of shifts.

[30] Secondly, if the interpretation of the definition of shiftwork in clause 34.2(a) of the BCG Award for which Altus contends were correct, there would be odd outcomes. Such a construction would provide a major competitive advantage to large and medium sized employers in the civil construction sector over smaller operators. For example, if large and medium sized employers in the traffic control industry were able to rely on work performed across the whole of their enterprise to demonstrate the continuation of traffic control services by different groups of employees at different sites across the country for different clients, they would be able to employ traffic controllers on afternoon shift or night shift and pay them the 15% shiftwork allowance (from Monday to Friday) provided for in clause 34.2(j) of the BCG Award. In contrast, a small employer in the traffic control industry, with only one crew of employees working one shift on one project, would be required to pay those employees overtime under the BCG Award if they worked after 6pm. An award is to be interpreted in light of the commercial and legislative context in which it applies. 15 The objects of the Act form part of the legislative context. Those objects include providing a balanced framework for cooperative and productive workplace relations that promote national economic prosperity and social inclusion for all Australians by acknowledging the special circumstances of small and medium-sized businesses.16

[31] I am cognisant of the fact that the relevant “context” to be considered in interpreting an award extends to the origins of a particular clause. 17 The Full Bench in the Retro Appeal was also interested in the origin of clause 34.2 of the BCG Award, as is apparent from the following observations:

“[39] This is a significant issue with potentially wide ramifications for the parties. Despite the additional evidence before the Commission, there is insufficient evidence to allow us to make any findings as to whether Retro conducts a roster system as would appear to be contemplated by clause 34.2 of the Award. Further, whether the definition of shiftwork in the Award requires the roster system to involve consecutive “shifts” at the same work location rather than in the employer’s enterprise more generally, particularly in the context of the modern traffic control industry, necessitates a detailed consideration of the history of the Award and its apparent objective intent beyond the scope of materials presently before us.

[40] We do note that clause 34.2 is fundamentally drawn from the former Australian Workers' Union Construction and Maintenance Award 2002, and that the definition of shiftwork in clause 34.2(a) refers to any system of work in which the operations are being continued by a group of employees. Whether this provision requires that each of the consecutive groups be working shifts (one of the defined shifts - rather than day work), and whether the consideration of the operations must be focused on each site, requires further and more detailed consideration.”

[32] The AWU was involved in both the Retro proceedings (on appeal and on remittal) and these proceedings. Apart from confirming that clause 34.2 of the BCG Award is drawn from the Australian Workers' Union Construction and Maintenance Award 2002, neither the AWU nor Altus was able to provide the Commission with any assistance in these proceedings in relation to the history of the provision or its apparent objective intent. My research did not advance the matter further either. It may well be the case that the definition of shiftwork in clause 34.2(a) of the BCG Award is not well suited to the civil construction sector in which, as Commissioner Hampton pointed out in Retro, there are major projects as well as smaller works which are likely to involve multiple employers of different sizes coming and going from one or more sites or projects as the various stages of work are undertaken. 18 It is open to an interested person to make an application under s 158 of the Act to vary the BCG Award if they believe that such a variation is necessary to meet the modern awards objective.

[33] My task in determining this part of the application for approval of the Agreement involves construing the BCG Award in its current terms. While the context and purpose of an award are relevant, ultimately the task of interpretation is to give effect to the meaning of the award as expressed in its words, objectively construed. 19 For the reasons given above, I am not satisfied that Altus conducts a roster system, as is contemplated by clause 34.2 of the BCG Award, for all the Employees. Accordingly, I invited Altus to provide an undertaking and I am satisfied that Undertaking 5 resolves my concern about some of the Employees not being better off overall, for it adopts the definition of shiftwork in clause 34.2(a) of the BCG Award.

Conclusion

[34] Subject to the Undertakings, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 as are relevant to this application for approval of the Agreement have been met.

[35] The AWU has given notice under section 183 of the Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Act, I note that the Agreement covers the AWU.

[36] The Agreement is approved and, in accordance with section 54 of the Act, will operate from 3 September 2019. The nominal expiry date of the Agreement is 22 June 2022.

DEPUTY PRESIDENT

Appearances:

Mr A Sage, with Mr T Callinan, for the applicant.

Mr M Follett, of counsel, with Mr M Fideli, solicitor, for the respondent.

Hearing details:

2019.

Sydney:

31 July.

Annexure A

 1   Clauses 33 and 36.2 of the BCG Award

 2   [2019] FWC 2062

 3   AWU v Retro Traffic Pty Ltd[2019] FWCFB 1068 (Retro Appeal)

 4   Retro at [5]

 5   at [19]

 6   Ibid at [37]-[39]

 7   Ibid at [41]-[42]

 8   Ibid at [43]

 9   Ibid at [45]-[50]

 10   Ibid at [51]-[56]

 11   Ibid at [53]-[54]

 12   Macquarie Dictionary, Revised Third Edition

 13   Clause 34.2(j) of the BCG Award

 14   Clause 34.1(b) of the BCG Award

 15   Amcor Limited v Construction, Forestry, Mining and Energy Union[2005] HCA 10; (2005) 222 CLR 241 (Amcor Limited) at [2] and [13]

 16   Section 3(g) of the Act

 17   Short v FW Hercus Pty Limited (1993) 40 FCR 511 at 517-19

 18   Retro at [42]

 19   Amcor Limited at [70] & [77]–[114]

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