Application to deal with a dispute
[2017] FWC 4044
•29 AUGUST 2017
| [2017] FWC 4044 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Isaac Shearing (The Maritime Union of Australia)
v
Viterra Operations Pty Ltd T/A Viterra
(C2016/7244)
VITERRA OPERATIONS PTY LTD ADELAIDE PORTS AGREEMENT 2015
[AE415185]
Grain handling industry | |
COMMISSIONER HAMPTON | ADELAIDE, 29 AUGUST 2017 |
Dispute about application of the terms of an enterprise agreement – hours of work and rosters during defined harvest season – agreed jurisdiction to arbitrate the proper application of the agreement – approach to task outlined – ordinary and natural meaning of provision determined having regard to the context and purpose of the terms – determination made – parties encouraged to hold further discussions about the practical implementation of the decision prior to the next harvest period.
1. Background
[1] Mr Isaac Shearing, represented by the Maritime Union of Australia, (MUA), has made an application under s.739 of the Fair Work Act 2009 (the FW Act) seeking that the Commission deal with a dispute under the dispute resolution procedure 1 set out in the Viterra Operations Pty Ltd Adelaide Ports Agreement 2015 (the 2015 Agreement). The 2015 Agreement applies to Mr Shearing and other relevant employees of Viterra Operations Pty Ltd T/A Viterra (Viterra) at its Port Adelaide terminal.
[2] Viterra operates a large grain and commodities storage and handling network spanning key growing regions in South Australia and western Victoria. This includes significant grain handling facilities at various ports including the terminal at the Port of Adelaide.
[3] The dispute concerns the operation of Appendix 1 – Terms and Conditions of Employment for Permanent Full Time Employees of the 2015 Agreement. The immediate context for the dispute as lodged with the Commission was that Mr Shearing was being disciplined by Viterra in relation to his refusal to work a particular shift as directed. That shift was on a weekend where Mr Shearing was nominally rostered off under normal roster arrangements. However, specific provisions of the 2015 Agreement apply during the harvest period and Viterra sought to rely upon those provisions to roster the applicant. The MUA, on behalf of Mr Shearing, has disputed both the application of the relevant provisions leading to the rostered shift and the fairness of the warning in the circumstances.
[4] The dispute has been subject to conferences before this arm of the Commission on 22 and 30 December 2016, 24 January and 29 May 2017. A detailed Statement and Recommendations 2 was issued to the parties after the 30 December 2016 conference.
[5] Although there have been constructive discussions between the parties during the off-season period, the substance of the dispute has not been resolved. The disciplinary action concerning Mr Shearing and some related issues were resolved following the earlier Statement and Recommendations issued by the Commission.
[6] It is common ground that the Commission has the power to arbitrate the dispute under the terms of clause 3.2 of the 2015 Agreement and the relevant provisions of the FW Act, and that it should now do so. In effect, the Commission is required to determine the dispute about the proper application of the instrument using the circumstances of Mr Shearing to provide the necessary context.
2. What the dispute is about
[7] The relevant Appendix of the 2015 Agreement provides as follows:
“Appendix 1 -Terms and Conditions of Employment for Permanent Full Time Employees
App 1.1 Total Hours
App 1.1.1 The Total Hours Bank will commence from 1st October each year and will be calculated using the following formula:
• Ordinary weekly hours prescribed by the Agreement (40)
• multiplied by weeks per year (52)
• plus the annualised salary overtime component (Terminal Operator = 620)
The total of which then becomes the Total Hours Bank.
App 1.1.2 Terminal Operators = 2700 Total Hours.
App 1.1.3 The Total Hours Bank for the year includes leave (where applicable) and public holidays as prescribed.
App 1.2 Roster System
App 1.2.1 Permanent Full Time Employees will participate in a Roster System whereby every second weekend is rostered off. During harvest if labour and skills shortages exist employees may be required to work one or both rostered off weekend days in accordance with Appendix 1.2.2, subject to compliance with the Viterra fatigue management policy.
App 1.2.2 Management will select Permanent Full Time Employees for overtime or extra ordinary shifts on the basis of skills required and the remaining Total Hours to be worked. The Roster System will be operated on an equitable basis. Those Permanent Full Time Employees with the highest Total Hours to be worked will be selected first for these duties. Permanent Full Time Employees identified to work under that method will not have the option of refusal other than:
(a) when incapacitated for work as a result of illness, injury; or
(b) a suitable substitute Employee has been arranged and approved by Management; or
(c) When on a rostered day off; or
(d) for other reasons approved by Management.
App 1.2.3 A weekly list will be posted on the Terminal noticeboard. The Employees name will be listed, along with the Total Hours remaining to be worked for the year. The posting of this list shall be the responsibility of Management and will be posted on the Terminal noticeboard on a week by week basis.
App 1.2.4 Employees who are undertaking rostered days off are able to volunteer to work on those days, if required by the business and at manager's discretion
App 1.3 Hours Bank Leave of Absence
App 1.3.1 Subject to the operational requirements of the Terminal and at the discretion of Management, individual Permanent Full Time Employees may be requested to take time off and then work those hours at any later time. Under this circumstance Employees will be notified by the end of shift on the day prior to the planned leave.
App 1.3.2 The Employee will be selected on the basis of least number of Total Hours remaining.
App 1.3.3 The Total Hours Bank will not be reduced by Hours Bank Leave of Absence.
App 1.4 Additional Hours
App 1.4.1 In accordance with the formula prescribed in App 1.1 any hours remaining at 30th September each year will be to the Permanent Full Time Employees advantage and will not be required to be paid back.
App 1.4.2 In the event that an Employee's Total Hours are attained prior to 30th September the Employee, unless mutually agreed otherwise, will be required to work if rostered.
App 1.4.3 Employee's will be paid at the appropriate rate (i.e. ordinary time, overtime and/or shift rate), calculated on the base hourly rate. This is in addition to the annualised salary.
App 1.5 Ordinary Hours
The maximum rostered ordinary hours per week for Permanent Full Time Employees will be forty (40) hours.”
[8] Mr Shearing is a permanent full-time employee and his employment is presently subject to the terms of Appendix 1.
[9] The harvest (period) referred to in Appendix 1.2.1 is defined in clause 1.5 of the 2015 Agreement as the period between 1 November in a year until 31 January in the following year. The events leading to this application occurred during that period.
[10] Clause 6.1 Hours of Work establishes the general provisions governing the normal spread of ordinary hours, roster and overtime arrangements. Subclause 6.1.2 of the 2015 Agreement further provides that:
“Both parties agree to The Roster where employees are rostered off every second weekend, in accordance with Appendix 1.2.1.”
[11] In essence the dispute concerns whether Mr Shearing should have been rostered (during the harvest season) on Saturday 19 November 2016, which fell on his nominally rostered weekend off. In reality, this dispute is the product of a difference of view about the proper construction of clause App 1.2. In particular, the resolution of the dispute involves consideration as to:
• the role and implications of Viterra’s fatigue management policy;
• whether the existence of a labour and skills shortage is ascertained under App 1.2 having regard only to the permanent full-time workforce or alternatively also taking into account the capacity to potentially access a pool of part-time and casual employees; and
• whether the application of the provision permits Viterra to take account of both the current and projected future hours and shifts, or alternatively, only the hours and shifts worked at the point that the decision to require employees to work on a rostered weekend off is being made.
3. The cases presented by the parties
3.1 The Maritime Union of Australia
[12] The MUA contends that Appendix 1 of the 2015 Agreement operates as follows:
• Under App 1.2.1 and clause 6.1.2, each permanent full-time employee is rostered off every second weekend. However, permanent employees may be required to work one or both rostered weekend days off during harvest if there is a labour and skills shortage. In such a situation, these employees will be rostered in accordance with App 1.2.2, and subject to compliance with the Viterra fatigue management policy.
• A labour and skills shortage would arise in circumstances where there are insufficient permanent employees on their rostered weekend on available to work, and who have the appropriate skills required, and there are insufficient casuals with the appropriate skills required.
• If there is no labour and skills shortage, then no employee on their rostered weekend off would be required to work.
• If there is a labour and skills shortage, then, in accordance with App 1.2.2, management will first select permanent employees who are on their rostered weekend off, on the basis of the skills required and highest remaining Total Hours to be worked.
[13] The MUA contends that there was no labour shortage on 19 November 2016 on the following basis:
• There were at least 2 other Authorised Officer (AO) skilled employees on their rostered on weekend, as well as a pool of casuals. Therefore Mr Shearing, who was on his rostered weekend off, should not have been allocated to work on 19 November 2016.
• As of 19 November 2016 there were 23 permanent employees. Of those 23 employees, 12 were on their rostered weekend on. Of these 12 employees, 7 were not allocated to work on 19 November 2016. Of these 7 employees, 2 employees (Mr Bills and Mr Przedworski) had the required skill of AO.
• There is no evidence that allocating either of these 2 employees (Mr Bills and Mr Przedworski) would have breached the company’s fatigue management policy.
• In addition, the company employs a large pool of casual labour, some of whom also hold the skill (qualification) of AO. The company should have also taken into account the availability of appropriately skilled casuals.
[14] That is, there was no labour and skills shortage, and there were at least 2 permanent employees with the AO qualification who were on their rostered weekend on, as well as a pool of casuals. As such, the company has breached Appendix 1 of the 2015 Agreement by allocating Mr Shearing to work.
[15] In the alternative, the MUA contends that if there was a relevant labour shortage on 19 November 2016, then, in accordance with App 1.2.2, management is to select employees on their rostered weekend off on the basis of skills required and the remaining total hours to be worked and subject to compliance with the fatigue management policy. In the present context, this should have operated as follows:
• Under App 1.2.3 Viterra will post on the Terminal noticeboard a weekly list, which reflects the total hours remaining to be worked for the year (the Total Hours List). The Total Hours List for the week ending 18 November 2016 indicates the remaining hours to be worked for each permanent employee as at that week in order to reach a total of 2700 hours per year, and the target total hours for that week in order to reach 2700 hours that year. Employees with higher total hours have more hours to work to reach the 2700 hours for the year.
• The Total Hours List lists employees in order of number of hours remaining to be worked as at that week. Of the 23 full-time employees employed as at 18 November 2016, 19 employees had higher remaining total hours to be worked than Mr Shearing. Of those 19, 6 had the required skill of AO. Of those 6, 3 were not allocated to work that weekend (Mr Bills, Mr Przedworski and Mr Bawden).
• There is no evidence that allocating any of these three employees (Mr Bills, Mr Przedworski or Mr Bawden) would have breached the company’s fatigue management policy.
• Accordingly, any of these 3 employees should have been selected ahead of Mr Shearing to work the weekend, on the basis they had higher Total Hours to be worked, and had the skills required.
[16] By rostering Mr Shearing on the weekend of 19 November 2016, Viterra breached the rostering arrangements as set out in App 1.2 of the 2015 Agreement.
[17] The MUA led evidence from Mr Shearing and Mr Campbell Duignan, Organiser with the MUA. Viterra did not challenge the factual elements of that evidence.
[18] Although the MUA initially sought a declaration of a breach of the Agreement under s.50 of the FW Act, it proposed during the hearing that the Commission determine the proper application of that instrument in the context of the circumstances of this dispute.
3.2 Viterra
[19] Viterra contends that it was able to roster Mr Shearing to work on 19 November 2016 in accordance with App 1.2 of the 2015 Agreement. It contends that this arises from the proper application of that provision which involves the following approach:
• Permanent full-time employees, such as the applicant, may be required to work on one or both rostered weekend days off during harvest if there is a labour and skills shortage. If a shortage exists, these employees will be rostered in accordance with App 1.2.2 and subject to compliance with Viterra's fatigue management policy.
[20] In terms of the approach to whether there was a labour and skills shortage, Viterra contends that:
• The 2015 Agreement does not define what amounts to a 'labour and skills shortage'. The meaning of the phrase must therefore be determined by considering its ordinary meaning in the context in which it appears.
• The concept of a 'labour and skills shortage' arises in the context of the roster system set out in App 1.2, which applies only to permanent full-time employees. Casual and part-time employees are not subject to this roster system, and their engagement to perform work would involve additional cost to Viterra. If the respondent resorted to rostering casual or part-time employees to work, that in itself would be evidence of a labour and skills shortage.
• A 'labour and skills shortage' refers to circumstances in which there is a shortage of permanent full-time, skilled labour to perform work on a weekend day, taking into account Viterra's fatigue management policy and, of course, work health and safety considerations.
[21] With respect to the skills present at the relevant time, Viterra contends that only four permanent, full-time employees had the AO skill (qualifications) required by it on 19 November 2016 - Mr Bills, Mr Bawden, Mr Przedworski and Mr Shearing.
[22] In terms of the fatigue management policy, Viterra contends that it sets out a range of matters which detail the risk assessments to be performed with respect to fatigue management. While the policy sets out some outer limits which must not be breached (e.g. an employee must not work more than 14 shifts in a row), compliance with this policy does not simply require the respondent to comply with these outer limits.
[23] Rather, it requires Viterra to assess and compare the risk associated with rostering employees. The respondent must then make the rostering decision that best manages the fatigue of its employees. This is particularly the case during harvest, when employees may be required to work a large number of hours in a short period. This is consistent with compliance with work health and safety obligations.
[24] Viterra contends that it rostered Mr Shearing to work ahead of three other employees on the basis that the other employees were more “fatigued” than Mr Shearing. As at 18 November 2016, the three others had all:
• worked as many or more days than Mr Shearing in the 28 day rostering block from 31 October 2016 to 27 November 2016; and
• worked more consecutive days immediately prior to 18 November 2016 than Mr Shearing.
[25] In addition, Mr Shearing was due to commence annual leave on Monday, 21 November 2016 and would not return to work for the remainder of the 28 day rostering block. In order to better manage the fatigue of the employees required to work in the week commencing on 21 November 2016, and comply with Viterra's fatigue management policy, Mr Crosby elected to roster Mr Shearing.
[26] Finally, Viterra accepts that Mr Shearing had less Total Hours remaining when compared to the three other employees who could have been rostered on the day in question. However, Viterra's position is that compliance with the fatigue management policy supersedes any question of considering the Total Hours worked by an employee at any given time. It is submitted that this approach is consistent with the requirement to maintain a safe workplace.
[27] As a result, Viterra contends that it was able to roster Mr Shearing to work on 19 November 2016 in accordance with App 1.2 of the Agreement and that its approach is consistent with the terms of the 2015 Agreement. Viterra did however recognise that the Commission may be able to provide further clarification about the operation of the provisions in question.
[28] Viterra called evidence from Mr Brenton Crosby, Operations Supervisor at Viterra Port Adelaide and Outer Harbour. Mr Crosby, in effect, administered the relevant roster and gave evidence about his approach to that task. He was cross-examined; however, the challenge was to that approach rather than to the major underlying facts relevant to this dispute.
4. The broad factual context
[29] The basic facts are largely agreed, or at least, are not controversial. Based upon all the evidence, my findings are as follows.
[30] Mr Shearing is employed as a permanent full-time Terminal Operator by Viterra at the Port of Adelaide terminal operated by Viterra. Mr Shearing is a qualified AO and Viterra have a requirement for at least two AO qualified employees to be on each shift. There are other skills requirements for the operation of the terminal that might impact upon the rostering of employees; however, these are not directly relevant to the immediate dispute.
[31] Mr Shearing is a permanent full-time employee for the purpose of App 1.2. Amongst other consequences, this means that the Total Hours concept and the associated annualised salaries applicable under that Appendix apply to Mr Shearing.
[32] During the harvest period, the seasonal nature of the grain handling industry means that there is a significant increase in the amount of grain received and a consequent increase in the extent of labour required. This also means that there is a very high probability that additional shifts and hours will be required, including by the full-time employees.
[33] Viterra has access to a number of part-time employees and to a pool of casual employees during the harvest period. A limited number of these employees have the AO qualification.
[34] Each year, a roster operates that sets out rostered weekends off (each alternative weekend) in an annual 28-day calendar for each work group. Mr Shearing works in Group A.
[35] Under that roster system, Group A employees, including Mr Shearing, were rostered for a weekend off on Saturday 19 November 2016 and Sunday 20 November 2016.
[36] That underlying roster system was, at least in part, organised by the employees themselves with an annual calendar of shifts devised using two shifts of the permanent employees. It is also fair to say that during the harvest period in 2015/16, the rostering practices of Viterra did not place any particular significance upon that underlying roster or the concept of every second weekend being rostered off. Rather, during the harvest period, the full-time employees were rostered by Viterra largely by reference to the fatigue management policy.
[37] The Viterra fatigue management policy is set out in Viterra's Hours of Work Policy. That policy relevantly includes the following:
“Purpose
Everyone experiences fatigue from time to time. Fatigue is a state of mental or physical performance impairment, caused by not getting enough quality sleep, being awake for long periods, working at times of day when we would normally be sleeping, or performing demanding work. Excessive fatigue can have a significant impact on performance, health and wellbeing. The performance impairment associated with fatigue has potential to result in serious incidents and accidents. This document is intended as a tool to assist Glencore Grain/Viterra personnel with managing their fatigue in the workplace.
… …
Policy
Actual Work Hours
There may be occasions when actual hours of work exceed planned work hours. This would include the need for overtime, callouts and over roster. Planned work hours, where possible, should stay within the following parameters:
Maximum work hours in a 24h period (for 2 or more days in a row) | 12 hours |
Minimum break length between shifts | 8 hours including travel time |
Maximum number of shifts worked in a row | 14 |
Minimum number of days off per 28 days | 6 |
Minimum breaks within shifts | 30 minutes within 6 hours of commencement of shift |
Every attempt should be made to keep actual work hours within the above parameters. If there is a business or safety requirement to exceed them, it should only be done with management approval and with formal risk management strategies in place.”
[38] The fatigue management policy also includes a risk management matrix, which follows a traditional Work Health and Safety (WHS) risk approach of identifying the hazards, assessing the risks and adopting the appropriate risk control that recognises the nature and level of the risks. The risks include the working hours arrangements such as the actual and average weekly and monthly hours and the scheduling of those hours including the shift patterns, the extent of consecutive days and the nature of the work such as whether it is night work, split shifts and physically demanding.
[39] On Friday 18 November, 2016 Mr Shearing was provided with the weekend roster, which indicated he was rostered to work on Saturday 19 November 2016. As outlined earlier, that weekend (19 and 20 November 2016) was his designated weekend off and fell during the defined harvest period.
[40] Mr Shearing then immediately contacted his Supervisor by phone about being allocated to work on his rostered weekend off, on the basis that he considered this to be contrary to the terms of App 1.2 of the 2015 Agreement. They did not resolve the issue.
[41] On the same day Mr Shearing, Mr Duignan, Mr Crosby and Mr Neil Carr, Viterra Operations Manager, met to discuss the issue. They did not resolve the issue.
[42] On 18 November 2016 further discussions between senior representatives of the parties did not resolve the issue.
[43] Mr Shearing did not attend work on Saturday 19 November 2016.
[44] From 21 November 2016 to 4 December 2016 Mr Shearing was on pre-arranged leave.
[45] On 5 December 2016, Mr Shearing returned to work from leave, and was issued a letter directing him to attend a disciplinary meeting. The letter alleged the applicant engaged in serious and wilful misconduct on the basis that he refused to attend a rostered shift, and failed to follow a reasonable direction from the Supervisor. The letter further provided that he was stood down pending an investigation.
[46] Between 7 and 12 December 2016, there were on-going discussions between the MUA and senior management of Viterra which involved Mr Shearing subsequently being returned to duties.
[47] On 8 December 2016 the MUA filed, on behalf of Mr Shearing, a Form F10 application for the Commission to deal with a dispute in accordance with a dispute settlement procedure of the 2015 Agreement.
[48] On 12 December 2016 Mr Shearing, Mr Duignan and Mr Allan Elbourn, MUA delegate, met with Mr Ben Norman, HR Manager and other company representatives to further discuss the dispute.
[49] On 22 and 30 December 2016 conferences were convened by this arm of the Commission. Arising from these conferences, the Commission issued a Statement and Recommendation on 30 December 2016.
[50] Further meetings were held through a Terminal Consultative Committee that comprised employees, MUA officials and company representatives in an attempt to resolve the dispute. The dispute about the disciplinary action was resolved; however, the parties have not been able to agree upon how Appendix 1 should operate or how any alternative harvest season arrangements would work.
[51] The escalation of the dispute through the above discussions was in line with the requirements of the dispute resolution provisions of the 2015 Agreement.
[52] I will further deal with the specific facts that pertain to the disputed application of Appendix 1 in Mr Shearing’s circumstances as part of the consideration of the substantive dispute.
5. The proper application of the Enterprise Agreement to the dispute
5.1 The approach to be applied
[53] A number of Full Benches of the Commission have outlined the approach that should be adopted in considering the construction and meaning of an enterprise agreement. The most recent statement of the principles was set out in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited3 (AMWU v Berri) in the following terms:
“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:
1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i) the text of the agreement viewed as a whole;
(ii) the disputed provision’s place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which it operates.
2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common assumption.
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”
[54] This is a non-exhaustive statement of the principles to be adopted4 and I have applied this approach in determining this dispute.
[55] In Geo A Bond & Co Ltd (In Liq) v McKenzie,5 (Geo A Bond) Street J said:
“...it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result ... from an agreement between the parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore, in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award.”
[56] In Re Aurora Energy Enterprise Partnership Agreement 2002 – 2005 Lacy SDP observed that:
“It is a widely accepted principle of statutory interpretation that the rules of construction are rules of common sense. Where the choice is between an interpretation that will result in inconvenience, injustice or absurdity and another which avoids such a result, then the latter ought to be adopted.”6
[57] The importance of context was emphasised by Burchett J in Short v Hercus Pty Ltd7 in the following terms:
“6. No one doubts you must read any expression in its context. And if, for example, an expression was first created by a particularly respected draftsman for the purpose of stating the substance of a suggested term of an award, was then adopted in a number of subsequent clauses of awards dealing with the same general subject, and finally was adopted as a clause dealing with that same general subject in the award to be construed, the circumstances of the origin and use of the clause are plainly relevant to an understanding of what is likely to have been intended by its use. It is in those circumstances that the author of the award has inserted this particular clause into it, and they may fairly be regarded as having shaped his decision to do so. The rules of construction, Mason and Wilson JJ. said in Cooper Brookes (Wollongong) Proprietary Limited v. The Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 26; (1981) 147 CLR 297 at 320, are really rules of common sense. Common sense would be much offended by a refusal to look at the facts I have summarized. As Isaacs J. said in Australian Agricultural Company v. Federated Engine-Drivers and Firemen's Association of Australasia [1913] HCA 41; (1913) 17 CLR 261 at 272, citing Lord Halsbury L.C.: "The time when, and the circumstances under which, an instrument is made, supply the best and surest mode of expounding it.
… …
8. That much is fairly clear. Where there is seen to be a difficulty, the court can often go to the history of the matter. A number of illustrations will be found in Nurses (South Australia) Award (Interpretation) Case (ubi supra). But an ambiguity or obscurity may not be immediately seen on the face of a document. Both the problem and its solution may appear only when the wider context from which an expression first sprang is brought to notice. Is the court then forbidden to look past the document itself that is before it? The respondent says the instant award is clear, and we must shut our eyes to what went before. I think there are two answers to this argument. On the one hand, I do not accept that the award is clear on its face. The fact that I have given it a meaning by a process of construction (as it happens, contrary to the respondent's contention) cannot disguise the possibility of understanding the language, as the learned judge understood it, differently. (Cf. Pickard v. John Heine and Son Limited [1924] HCA 38; (1924) 35 CLR 1 at 9, per Isaacs A.C.J.) That is certainly sufficient to justify a reference to its source. Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history, and to prefer to peer unaided at some obscurity in the language. "Sometimes", McHugh J. said in Saraswati v. R [1991] HCA 21; (1991) 172 CLR 1 at 21, the purpose of legislation "can be discerned only by reference to the history of the legislation and the state of the law when it was enacted". Awards must be in the same position.”
[58] The nature of the present task has also been emphasised by the Full Bench in DP World Brisbane Pty Ltd v The Maritime Union of Australia8 in the following terms:
“[31] Importantly, the task of interpreting an enterprise agreement does not involve re-writing a provision in order to give effect to the Commission’s view of what would be fair and just, without regard to the terms of the agreement. As Madgwick J observed in Kucks v CSR Limited:
‘But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.’”
[59] All of the above observations are consistent with the approach taken in AMWU v Berri. In the end, my present task is to ascertain the objective intention based upon the language and terms of the 2015 Agreement, when read as a whole, and considered having regard to its context and purpose.
5.2 The meaning and application of Appendix 1
[60] I deal first with the broader context of the Appendix.
[61] The 2015 Agreement provides that it will:
“2.1.4 Supersede any other Agreement / Memorandum of understanding / Exchange of Correspondence or Work practices / Arrangements, written or unwritten, which applied prior t the introduction of this Agreement and which regulated terms and conditions of employment of employees defined by or now employed under this Agreement. The only exceptions to this are:
2.1.4.1 Payment of up to eight (8) hours ordinary time per day for employees who are called away from work in an emergency situation to serve State Emergency Services.”
[62] This means that any previous understandings or work practices, including about Appendix 1 operating at the time of the 2015 Agreement, are not presently relevant. I note that there is no evidence about these matters before the Commission.
[63] The objects of the 2015 Agreement are relevant and clause 2.2 and 2.3 state as follows:
“Clause 2.2 – Intent and Objectives
2.2.1 The Company recognises the significant impact our people have on the capacity of the Company to deliver and realise its corporate objectives. The aim of the Agreement is to develop and support a safe working environment based on teamwork with a multi-skilled flexible workforce and where the Parties are committed to active involvement in continuous improvement so that the productivity of each employee is optimised and the key performance measures for Terminal Operations are achieved or bettered wherever possible.
Clause 2.3 – Employee Protection
2.3.1 This Agreement will provide for conditions of employment or remuneration that are in total not inferior to conditions of employment or remuneration prescribed by the Award defined in this Agreement.”
[64] Consideration of the Appendix in the context of the Agreement more generally reveals that the parties intended different and more flexible arrangements to apply during the defined harvest season. This reflects the significantly seasonal nature of the grain handling industry in Australia and its impact upon the terminal’s operations including where Mr Shearing is engaged.
[65] Appendix 1 applies only to permanent full-time employees.
[66] Within that approach, and applying the ordinary meaning of the provision, Appendix 1 contemplates the establishment of a Total Hours Bank for full-time employees. The hours bank operates on an annual basis from 1 October each year and includes ordinary hours (40 per week) and overtime hours (620 per annum) for Terminal Operators. This operates in the context of an annualised salary.
[67] A roster system is established and provides a scheme whereby permanent full-time employees are rostered off every second weekend. This is to operate throughout the year, however, during harvest (defined as being 1 November in a year until 31 January in the following year) if labour and skills shortages exist:
• employees may be required to work one or both rostered off weekend days in accordance with App 1.2.2;
• App 1.2.2 provides for management to select the permanent full-time employees for overtime or extra ordinary shifts on the basis of the skills required and the remaining Total Hours to be worked. Further, the provision contains the following additional parameters:
- The roster system will be operated on an equitable basis;
- Those permanent full-time employees with the highest Total Hours will be selected first for these duties; and
- The employees identified do not have the right to refuse other than in circumstances specified in App 1.2.2 (which are not relevant here);
- this operates
• subject to compliance with the Viterra fatigue management policy.
[68] I note that in relation to the impact of App 1.2.2, the MUA accepts that the capacity to refuse the additional shifts on the basis of rostered days off does not apply to the rostered weekends off operating under App 1.2.1. This is appropriate as such a proposition would, in effect, render the clause unworkable.
[69] App 1.2.3 requires the employer to maintain a week by week running list of the Total Hours for the employees and to have that posted on the notice board.
[70] App 1.2.4 provides that employees may volunteer for work on rostered days off.
[71] Appendix 1 also makes provision for those employees who have hours remaining at 30 September each year, where they are not required to pay back the hours paid already as part of the salary. Further, where the Hours Bank is exceeded (already worked) prior to that date, additional payments in excess of the annual salary are made for any additional hours.
[72] The approach outlined above is largely uncontroversial but in any event arises from the terms of the provision itself. However, the implications of this are not agreed and there is some room for debate. To assist with the overall determination of this dispute, the initial consideration of the following issues that arise from the disputed construction of the Appendix is appropriate:
• Whether the fatigue management policy operates as an overriding principle and what is its impact upon the final allocation of the additional shifts – that is, what does “subject to compliance” with the policy mean in the context of the provision and the agreement as a whole – the role of the fatigue management policy;
• Whether the existence of a labour and skills shortage is ascertained under App 1.2 having regard only to the permanent full-time workforce or alternatively also taking into account the capacity to potentially access a pool of part-time and casual employees - the scope for the assessment of the labour and skills shortage; and
• Whether the application of the provisions (including the application of the fatigue management policy - the assessment of the labour and skills shortage - the assessment of the total hours concept) permits Viterra to take account of both the current and projected future hours and shifts, or alternatively, only the hours and shifts worked at the point that the decision to require employees to work on a rostered weekend off is being made – the projected hours issue.
[73] I deal with each in turn.
(a) The role of the fatigue management policy
[74] I have set out the terms of the policy earlier in this decision. The policy states that it is intended as a tool to assist in the management of fatigue in the workplace. Within that framework, it assigns responsibilities and sets outer parameters about actual hours of work that are to be applied and not exceeded unless there is management approval and formal risk mitigation strategies put in place. As such, it is not a prescriptive document.
[75] I have earlier set out how the clause is to operate in general terms. That is, during the harvest season if there is a labour and skills shortage, management may select the permanent full-time employees for overtime or extra ordinary shifts on the basis of the skills required and the remaining Total Hours to be worked. That selection operates subject to certain additional parameters:
• the roster system will be operated on an equitable basis;
• those permanent full-time employees with the highest Total Hours will be selected first for these duties; and
• the employees identified do not have the right to refuse other than in circumstances specified in App 1.2.2 (which are not relevant here);
and this operates subject to compliance with the Viterra fatigue management policy.
[76] Given the terms of the clause when read as a whole, and the nature of the fatigue management policy, I consider that the role of the fatigue management policy is that it operates as a check and balance on the operation of the selection process and the additional hours that might otherwise follow from the terms of the clause. Further, the concept of “compliance” in this sense emphasises the importance of the policy and the WHS considerations implicit in that policy and this approach accords with the objects of the 2015 Agreement set out in clause 2.2.
[77] However, I do not consider that the fatigue management policy means that the prerequisites of clause 1.2.1, or that the process required by clause 1.2.2, need not be applied.
(b) The scope for the assessment of the labour and skills shortage
[78] Appendix 1 applies only to permanent full-time employees. The 2015 Agreement applies to all employees including the pool of the part-time and casual employees. The Appendix also provides the context in which the immediate provisions operate and this includes the Total Hours bank and the annualised salary arrangements for the permanent full-time employees.
[79] I consider that for the purposes of the assessment of the labour and skills shortage, Appendix 1 does not require Viterra to take into account employees outside the scope of that provision. This arises from the Total Hours arrangements and related provisions and concepts inherent in the operation of the Appendix.
[80] Further, if the Appendix contemplated consideration of the part-time and casual pool of employees, this would also add to the uncertain application of the provisions. That is, Viterra could simply not organise sufficient skilled employees at the relevant time in order to trigger the shortage. Equally, the operation of the labour and skills shortage would be triggered by chance in terms of the particular availability and skills of that broader group from time to time. This does not sit well with the concepts and provisions contained in Appendix 1 and has the potential to operate inequitably amongst the group of full-time employees.
[81] Accordingly, I consider that the labour and skills shortage envisaged by Appendix 1 is to be assessed having regard to the available permanent full-time employees who are covered by that provision. This approach also best accords with the objects of the 2015 Agreement set out in clause 2.2. However, as a consequence, the availability of permanent full-time employees who were nominally rostered on, but not allocated to work on the weekend in question, is relevant to the assessment as to whether there is a labour and skills shortage.
(c) The projected hours issue
[82] This involves consideration of each of the assessments or operative considerations that are to be taken into account in the application of Appendix 1.
The application of the fatigue management policy
[83] Given the nature of the fatigue management policy, I can see no basis to apply its provisions narrowly so as to exclude consideration of the projected hours and shifts. That is, the intent of the policy is to provide a risk management approach to fatigue and this involves adopting appropriate control measures to reduce or eliminate such risks. One of those control measures is to monitor and schedule hours so as to avoid factors that compound the risks, such as the number of consecutive days worked. An approach that limited consideration only to the actual hours and shifts at a point in time, is not consistent with that policy or the apparent intention of the provisions when adopting the policy as part of its terms. Further, the objects of the 2015 Agreement set out in clause 2.2 are also more consistent with a broad view about how the policy is to be applied in this regard.
The assessment of the labour and skills shortage
[84] The starting point for this assessment is that there is to be a roster established that provides for each second weekend off. Where the relevant shortage exists, the process contemplated by App 1.2.2 may be implemented, subject to the fatigue management policy.
[85] There are some competing considerations that might bear upon the intended approach here. A narrow approach would be to suggest that the assessment is to be at the point that the option is being considered and only having regard to the circumstances at that time. A broader interpretation would still involve the assessment being made at the relevant time, but also having regard to both the present circumstances and the projected hours. One of the parameters of App 1.2.2 is that the roster system will operate on an equitable basis. In the present context, this consideration is more consistent with an approach that leads to some predictability of shifts and the even sharing of the additional hours across the full-time workforce.
[86] Given that the existence of the shortage is to be assessed across a known group of employees and any staffing decisions would have an impact upon future staffing availability and decisions, I do not consider that a narrow approach should be taken on this aspect. Further, the objects of the 2015 Agreement set out in clause 2.2 are also more consistent with a broad view about how this assessment should be undertaken.
[87] Accordingly, on balance, I consider that the assessment of the labour and skills shortage may take into account the existing labour and skills requirements whilst having regard to the projected requirements amongst the relevant group of full-time employees. However, there must be an actual assessment made that a shortage exists based upon objective criteria, rather than the current practice of, in effect, assuming that a relevant shortage exists because it is the harvest period.
The application of the Total Hours concept
[88] The provisions of Appendix 1 are clear on this aspect. Subject to the relevant skills requirement being met, and the implications of the fatigue management policy, the selection of the employee is to be based upon the highest Total Hours remaining at the relevant time. That is, subject to those caveats, the employee to be selected is the employee with the highest number of remaining hours to be worked from the Total Hours bank at that point. At least in relation to this particular aspect, there is no capacity to take into account the projected future hours of the employees.
[89] Applying all of the above approach to Appendix 1, the following emerges:
(1) The roster system provides that permanent full-time employees are rostered off every second weekend and this is to apply throughout the year. However, during harvest (defined as being 1 November in a year until 31 January in the following year) if labour and skills shortages exist different arrangements apply. The assessment of the shortage is to be made having regard to the permanent full-time employees in the context of the required number of employees and skills and may also take into account whether the shortage exists as a result of the projected shifts within the 28 day rostering cycle;
(2) Where the relevant shortage exists, permanent full-time employees may be required to work one or both rostered off weekend daysin accordance with App 1.2.2 as follows:
Management may select the permanent full-time employees for overtime or extra ordinary shifts on the basis of the skills required and the remaining Total Hours to be worked provided that it:
- Operates on an equitable basis;
- Those permanent full-time employees with the highest Total Hours at that point in time will be selected first for these duties; and
- The employees identified do not have the right to refuse other than in circumstances specified in App 1.2.2; and
- selection (and the additional hours more generally) operates subject to compliance with the Viterra fatigue management policy – where both the actual and projected shifts and hours of the full-time employees may be taken into account.
5.3 The application of Appendix 1 to the circumstances on 19 November 2016
[90] Having determined the proper approach to Appendix 1, it is appropriate to illustrate that approach by applying it to the circumstances on 19 November 2016.
[91] I have earlier set out the general factual context. In addition, the evidence reveals the following:
• The roster arrangements applying in practice during the harvest period in November 2016 did not start from the initial proposition that each alternate weekend would be rostered off although there was an underlying roster in place that nominally specified each second weekend off for each of two groups of full-time employees.
• As of 19 November 2016, there were 23 permanent, full-time employees. Of those 23 employees, 12 were nominally on their rostered weekend on. Of these 12 employees, seven were not allocated to work on 19 November 2016 under the underlying roster.
• Only four permanent, full-time employees had the AO qualifications required by Viterra on 19 November 2016 - Mr Bills, Mr Bawden, Mr Przedworski and Mr Shearing.
• Mr Bills and Mr Przedworski were, at least nominally, on their rostered on weekend although they were not allocated work on that weekend, and there were some AO qualified employees in the pool of part-time and casual employees.
• As at 18 November 2016, the three other AO qualified full-time employees had all:
- worked as many or more days than Mr Shearing in the 28 day rostering block from 31 October 2016 to 27 November 2016; and
- worked more consecutive days immediately prior to 18 November 2016 than Mr Shearing.
• Allocating any of three other AO qualified employees to work on 19 November 2017 would not have breached the working hours constraints in the fatigue management policy; however, if they were to have been rostered to work on 19 November 2016 that may well have reduced their availability at some point in the 28 day roster period.
• Mr Shearing was due to commence annual leave on Monday, 21 November 2016 and would not return to work for the remainder of the 28 day rostering block.
[92] I note that there does not appear to be any contest that the AO qualifications represent a relevant “skill” requirement for the purposes of App 1.2. This approach is sound and I have dealt with this matter on that basis.
[93] Given my findings, the roster arrangements and decision making process undertaken by Viterra does not sit comfortably with what I consider to be the proper application of Appendix 1. The underlying alternative weekend off did not feature in the planning and was not taken into account in the decision to roster Mr Shearing on Saturday 19 November 2017. Further, the fatigue management policy operates as an important check and balance on the selection of the employees to work the additional shifts and the hours more generally; but does not operate to replace the process required by clause App 1.2.2.
[94] The more difficult question is whether that made any difference given the factual circumstances. This difficulty arises, at least in part, because the conceptual framework for the roster as outlined above was not being applied in practice at the point that the decision was made. This has a particular impact upon the assessment of whether there was a labour and skills shortage. That is, if the alternative weekend off roster was being applied in practice, the two rostered on AO qualified employees would have been available to be allocated the work in the normal course and no shortage would be evident. However, in reality that was not the case and shifts had been arranged in the 28 day roster period without that approach being taken into account. In that light, a labour and skills shortage may have existed in practice, but as a result of the approach being applied by Viterra at that time.
[95] In the end result, Viterra made an assessment of the four full-time AO qualified employees. Subject to the above discussions and what follows, this was the approach permissible under the terms of the Appendix.
[96] Even taking into account the projected hours and shifts for the two (rostered on) employees and the other AO qualified full-time employees, the fatigue management policy did not require that they not work on the day in question. That is, whilst the decision to require Mr Shearing to have worked on that day left open more options in the backend of the 28 day cycle (due to his relatively lower hours at the time and upcoming annual leave) there would appear to have been sufficient room left within the working hours parameters of the policy for those employees to work on the day in question.
[97] In that light, one of the (nominally) rostered on employees, or the employee with the highest Total Hours in the bank if the shift was to be considered to be an extra shift (due to the roster arrangements actually in operation at that time creating a labour and skills shortage in connection with the day in question), should have been selected for the shift on Saturday 19 November 2017.
6. Conclusions
[98] I consider that the proper application of the 2015 Agreement is as set out earlier in this decision and I determine accordingly.
[99] It would be appropriate for the MUA and Viterra to meet and consider the practical implications of this decision in advance of the upcoming harvest season.
[100] Liberty to apply is also granted.
COMMISSIONER
Appearances:
S Danalis with C Duignan for Mr Shearing and the Maritime Union of Australia.
A Short of Minter Ellison, with permission, for Viterra Operations Pty Ltd.
Conference details:
Adelaide
2016
December 22, 30.
2017
January 24, May 29.
Hearing details:
Adelaide
2017
August 10.
1 Clause 3.2 of the 2015 Agreement.
2 PR589018 30 December 2016.
3 [2017] FWCFB 3005.
4 See also Paper Australia Pty Ltd t/a Australian Paper v Australian Manufacturing Workers’ Union [2017] FECFB 1621 at [21].
5 [1929] AR (NSW) 498 at 503; See also City of Wanneroo v Holmes (1989) 30 IR 362 (at 378-379) and Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2].
6 Re Aurora Energy Enterprise Partnership Agreement 2002 – 2005, [2008] AIRC 1074, at para 17; See also National Union of Workers v Plexicor Australia [2008] AIRC 1134.
7 (1993) 40 FCR 511.
8 [2013] FWCFB 8557.
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