Australian Federated Union of Locomotive Employees v Aurizon Operations Ltd
[2023] FWCFB 193
•20 OCTOBER 2023
| [2023] FWCFB 193 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
s.218A—Variation of agreement to correct or amend errors, defects or irregularities
Australian Federated Union of Locomotive Employees
v
Aurizon Operations Ltd
(C2022/7178)
Application by Aurizon Operations Ltd
(AG2023/110)
| JUSTICE HATCHER, PRESIDENT | SYDNEY, 20 OCTOBER 2023 |
Application for variation of the Aurizon Bulk (Queensland) Enterprise Agreement 2019 – alleged dispute about matters arising under the Aurizon Bulk (Queensland) Enterprise Agreement 2019.
Introduction
On 28 October 2022, the Australian Federated Union of Locomotive Employees (AFULE) lodged an application under s 739 of the Fair Work Act 2009 (Cth) (FW Act) (dispute application) for the Commission to deal with a dispute between its members and Aurizon Operations Ltd (Aurizon) pursuant to the dispute resolution procedure in clause 7 of the Aurizon Bulk (Queensland) Enterprise Agreement 2019 (2019 Agreement). The dispute resolution procedure provides for the Commission to attempt to resolve disputes about matters arising under the Agreement, or in relation to the NES, by conciliation in the first instance and, if this does not succeed, to determine such disputes by arbitration.
The dispute the subject of the AFULE’s application concerns the interpretation of clause 77.1.1 of the 2019 Agreement, which provides as follows:
77. THE MASTER ROSTER – ALL TRAIN CREW
77.1. The master roster will show for all Train Crew Employees:
77.1.1. The shift length and start times for at least 70% of all known workings;…
The AFULE contends in its application that Aurizon is failing to comply with its obligation under clause 77.1.1 to provide a master roster that includes a shift length and start time for 70 per cent of all ‘known workings’. Aurizon contends in response that the obligation under clause 77.1.1 does not arise in respect of operations where there is no Master Train Plan (MTP) or there are other circumstances where Aurizon cannot obtain the information that it needs to be able to roster employees for the purpose of the master roster, because in those cases there are no ‘known workings’. The core issue in dispute is therefore the meaning of the expression ‘known workings’.
The AFULE’s dispute application was initially allocated to a single member of the Commission for conciliation consistent with the dispute resolution procedure in the 2019 Agreement, but the dispute was unable to be resolved.
On 20 January 2023, Aurizon applied under s 218A of the FW Act to vary clause 77.1.1 of the 2019 Agreement (variation application) by adding the underlined words as follows:
77. THE MASTER ROSTER – ALL TRAIN CREW
77.1.The master roster will show for all Train Crew Employees:
77.1.1.Where practicable and where there is an applicable Master Train Plan, [t]he shift length and start times for at least 70% of all known workings; …
Aurizon’s central contention in respect of its variation application is that it was not reasonably contemplated at the time the 2019 Agreement was made that it would be obliged to show shift lengths and start times in a master roster in the absence of an MTP or comparable information. Accordingly, if the AFULE’s interpretation of clause 77.1.1 was correct, then the provision contains an error, defect or irregularity capable of being remedied by a variation pursuant to s 218A of the FW Act. The proposed variation would confine the scope of Aurizon’s obligation under clause 77.1.1 in respect of ‘all known workings’.
On 13 February 2023, Aurizon made an application for both the dispute application and the variation application to be referred to a Full Bench for hearing pursuant to s 615A of the FW Act. On 7 March 2023, the President of the Commission granted this application under ss 615 and 615A[1] on the basis that determination of the dispute application would give rise to significant issues concerning the construction and application of s 218A which attracted the public interest and that it was convenient and agreed that both applications be heard together.[2] The parties agree that the question to be determined in the dispute application is: ‘Does the Master Roster implemented for the Toowoomba and Goondiwindi depots on 2 January 2023 comply with clause 77 of the Aurizon Bulk (Queensland) Enterprise Agreement 2019?’
The matters were heard by a differently-constituted Full Bench[3] on 9 and 10 May 2023. At the hearing, the AFULE adduced evidence from Michael McKitrick, the State Secretary of the AFULE, and John Pederson, a train driver employed by Aurizon. Aurizon adduced evidence from Ian Fulton, its Rail Operations Manager, Emma Pollock, its HR Partner (until January 2023) and Andrew Maszcak, its Regional Operations Manager – Coal Operations in Central Queensland.
After hearing the evidence and submissions, the Full Bench proposed that prior to determining the applications, the parties should endeavour to negotiate a variation to the 2019 Agreement which would resolve the substantive issue in dispute with the assistance of the Commission. The AFULE and Aurizon subsequently confirmed in writing that they would participate in such a process.
The parties engaged in this process for some time but, by 20 July 2023, had both advised the Commission that they were unable to reach any agreement. The Full Bench then invited the parties to make further written submissions concerning certain historical extrinsic material which it had identified as being potentially relevant to the matters. All submissions were received by 24 August 2023.
It became necessary to reconstitute the Full Bench on 21 September 2023 due to one of the members’ leave commitments. The member added to the Full Bench has read the materials and the transcript of the hearing.
Factual background
The factual background to this matter is largely non-contentious, save for one matter. The evidence given by Mr McKitrick, Mr Fulton, Ms Pollock and Mr Maszcak canvassed to varying degrees the process of bargaining between the AFULE and Aurizon which led to the making of the Agreement and, in particular, the negotiations concerning what ultimately became clause 77.1.1. For reasons which we explain later, most of this evidence has no probative value in respect of the construction of clause 77.1.1 and is not otherwise relevant to the determination of the applications. Accordingly, except for some objective background facts which are not in contention, it is not necessary to delve into this evidence in order to set out the factual background.
Aurizon
Aurizon is Australia’s largest rail freight operator. It was established as a private business in 2010 when the Queensland Government privatised QR National, a freight business previously operated by Queensland Rail Limited (QR). It engages in extensive bulk haulage operations in Queensland, particularly in coal. It also handles other bulk goods, including grain. Its bulk operations in Queensland are divided into Coal and non-coal (‘Bulk’) businesses. The AFULE represents train drivers employed by Aurizon in both divisions. The Agreement covers train drivers in the Bulk division, and a separate enterprise agreement covers train drivers in the Coal division.
Rostering of train crew
In the Bulk division, the train crew work in accordance with three types of roster prepared by Aurizon for each depot: the master roster, the forecast roster and the daily roster. The master roster is prepared in conjunction with a depot roster committee. As will be explained later, there are limitations on the number of times that the master roster may be altered during the course of a year. Shifts for particular days may be shown in the master roster in two ways:
(1)The shift has a designated start time and shift length. For convenience, we will refer to these as ‘rostered shifts’.
(2)The shift simply designates 00:01 hours to 23:59 hours as the period in which the employee may be required to work. These are referred to as ‘available shifts’ or ‘availables’. They may be changed to rostered shifts (that is, shifts with a designated start time and shift length) on the forecast roster or the daily roster.
The master roster also identifies rostered days off (RDOs) and ‘Ex Days’ (where an employee is rostered to complete a shift which commenced the previous day).
The master roster is usually prepared using information from the MTP. The MTP is issued by QR, which manages the railway tracks used by Aurizon’s Bulk division in its operations. Aurizon (along with any other users of QR’s rail network) is required to request ‘paths’ on QR railway tracks for services which Aurizon is contracted to provide. In doing so, Aurizon must provide QR with the relevant details about each such train service, including where and when the service runs, where it stops en route, loading and unloading times and any requirements for driver changes. On the basis of the information provided by Aurizon and other users of the rail network, QR then prepares the MTP. The MTP for each QR line shows, in graphical form, where each planned train service will be on the line at each point during the 24-hour period of each calendar day. This includes where and when the service starts and where and when it ends, with any stops on the way. Once a train path for Aurizon is included in the MTP, QR is contracted to provide that train path, and any changes have to be agreed with Aurizon and its relevant customer.
The forecast roster is issued every two weeks and is essentially an updated version of the master roster for the relevant two-week period. Under the forecast roster:
·the shift start times can be changed by up to four hours earlier or later if the track is closed for maintenance for eight hours or more;
·an available shift can be converted to a rostered shift; and
·non-operational shifts (such as medical or training shifts) and leave can be shown.
The daily roster is posted 33 hours in advance of the 24-hour period in question. It may convert available shifts on the master or forecast roster to rostered shifts, or to an ‘AFD [available for duty] window’ (a period of time for which an employee must be available). There are limitations on the extent to which the daily roster may vary start times for rostered shifts as specified in the master or forecast roster. There are also limitations on changes which may be made to shift start times after the daily roster is posted. Circumstances which may affect start times including customer requirements, weather events or changes required by QR. Daily rosters take into account daily train paths (DTPs) developed by QR in response to Aurizon’s requests for train paths. DTPs set out non-contracted train paths which may be changed by QR without consulting Aurizon, and are built to fit in with the MTP and other requirements on the relevant line.
The 2015 Agreement
Prior to the commencement of the 2019 Agreement, both the Coal and Bulk divisions of Aurizon’s operations in Queensland were covered by the same agreement, the Aurizon Train Crew and Transport Operations Enterprise Agreement 2015 (2015 Agreement). Clause 45.10 of the 2015 Agreement required each depot to have a master roster, and clause 45.11 required that the master roster, and any significant changes to that roster, be developed in conjunction with the depot roster committee, with there being no more than three significant changes per calendar year unless otherwise agreed by the roster committee. Clause 45.12 required the master roster development process to ensure that business needs were met and take into consideration employee work/life balance, and clauses 45.13 and 45.14 allowed for a new master roster to be hung for 14 days prior to implementation to allow employees to lodge objections and have them considered by Aurizon and the depot roster committee.
The 2015 Agreement contained, in addition, separate and distinct requirements for rosters in the Coal division and in the Bulk division (then known as ‘Freight’). In respect of the Coal division, clause 50.2 provided:
50.2.The master roster will show:
·an average of 40 ordinary hours per week over the roster cycle; and
·RDOs; and
·an average over the roster cycle of up to 30% of planned shifts on each day as available; and
·the shift length and start time of each of the rostered shifts.
The effect of clause 50.2 was that at least 70 per cent of planned shifts on each day had to be rostered shifts with a designated start time and shift length.
In respect of forecast rosters for the Coal division, clause 50.7 provided that changes that could be made to the master roster included, relevantly, that the start time could be altered by four hours earlier or later for network shutdowns, that available shifts could be converted to rostered shifts, and other changes could be made by agreement. As for daily rosters, clause 50.9 provided that they had to show shift lengths and start times of rostered shifts, and clause 50.10 provided:
50.10.What can change from the forecast roster to the daily roster?
·a start time will be allocated for an available; and/or
·a shift (or available) may be cancelled; and/or
·a start time to a maximum of two hours earlier or later; and/or
·by agreement, any other change (subject to the maximum shift length clause), including the insertion of stand-alone overtime.
Clause 50.11 provided that, once the daily roster was posted, the start time of a shift could only be altered once, unless otherwise agreed, and clause 50.12 provided that the start time could only be moved up to one hour earlier or two hours later.
In respect of Freight (except the North West Line), clause 51 of the 2015 Agreement relevantly provided:
51. FREIGHT HOURS OF WORK (EXCL NORTH WEST LINE)
51.1. This clause applies to train crew in Freight, excluding train crew covered by clause 52 (North West Line).
The master roster
51.2. The master roster will show:
·the shift length and start times of rostered shifts; and
·availables; and
·RDOs.
51.3. Overtime will not be rostered in the master roster.
51.4. The number of RDOs to be included in the master roster is the number of weeks over which the roster cycles multiplied by 2.25.
The forecast roster
51.5. The forecast roster must be posted by 1500 on the Friday before the Monday of the following week.
51.6. The forecast roster may alter the master roster, with the exception of RDOs (unless agreed otherwise).
The daily roster
51.7. The daily roster must be posted at least 33 hours prior to 0001 of the day covered by the roster.
51.8. The daily roster may alter the forecast roster and will convert availables into either:
·a rostered shift; or
·an AFD window; or
·not required.
51.9. If the start time of a rostered shift is to be altered from the forecast by three hours or more the Company will advise the affected employees prior to the daily roster being posted.
Changes to start times in the daily roster
51.10. Once posted, the start time of a shift in the daily roster may be altered either earlier or later to a maximum of three occasions.
51.11. An alteration of the start time earlier than the time in the daily roster is limited to one hour unless agreed otherwise.
. . .
Clauses 51.12 and 51.13 provided for the payment of prescribed allowances where a start time in the daily roster was changed.
It is clear that the rostering provisions for Freight were, from Aurizon’s perspective, far less restrictive than for the Coal business. In respect of the master roster, there was no limitation on the proportion of shifts which could be designated as available shifts rather than as rostered shifts. There was, additionally, no limitation on the extent to which the forecast roster could alter the master roster, except in respect of RDOs, nor any limitation on alterations of the forecast roster by the daily roster. Once the daily roster was posted, shift start time could be altered up to a maximum of three times (compared to once for Coal).
The practice under the 2015 Agreement was that rostered shifts, with a specified start time and shift length, were included in master rosters in Freight for train services that Aurizon knew were running. This was not necessarily confined to services identified in the MTP but might also include some services running off DTPs in circumstances where, due to the nature of the service, Aurizon knew the load and unload points of the service and had a degree of certainty that the service would run in accordance with its usual DTP.
Bargaining for the 2019 Agreement
The 2015 Agreement reached its nominal expiry date on 10 September 2018. It was agreed that the 2015 Agreement would be replaced by separate agreements for the Coal and Bulk businesses. Bargaining for the new Bulk agreement began in about September 2018.
There are two important aspects of the business context applying during the bargaining which followed which must be noted. First, the depots which Aurizon operated at the time all ran off a MTP, which was used to develop the master roster for each depot. Second, Aurizon did not at this time have any contracts for the transport of grain. It had previously held a grain contract, but had lost that contract before bargaining began and had shut down two of the depots from which this work was performed.
It is not in contest that, at the time of the commencement of bargaining, one of the major concerns held by train crew employed by Aurizon was the lack of certainty provided by the master rosters. From the employees’ perspective, the roster contained an excessive number of available shifts and insufficient rostered shifts with a start time and shift length. The effect of being rostered on an available shift meant that the employee had to ensure that they were available for the entire 24-hour period until such time as the shift was converted to a rostered shift by the forecast roster or the daily roster, meaning that the employee could not plan for any out-of-work events for that day. Consequently, one of the major claims initially advanced in bargaining by the AFULE and the other unions, the Australian Rail, Tram and Bus Industry Union and the Australian Manufacturing Workers’ Union, was for a ‘roster code of practice’ (RCP) to be included in the new agreement. The unions’ proposed RCP which was sent to Aurizon on 27 November 2018 included the following requirements for the master roster:
·To average 40 hours per week over the Roster Cycle.
·Not to contain any rostered overtime.
·Include RDOs.
·Include Start and Finish time of each shift.
·No more than three significant changes in one calendar year.
·A new Master Roster must be hung for 14 days prior to implementation to allow for objections which the company and Roster Committee will attempt to address.
·100% of known workings to go into Master Roster.
·Master Roster converts to the Forecast Roster.
·Entitlement to Master Roster workings.
·The Master Roster must reflect actual workings unless otherwise agreed.
·The length of local workings contained in the Master Roster will not be extended during the formulation of daily rosters unless this is agreed through consultation.
(underlining added)
The proposed RCP provided that the only change which could be made to the master roster by the forecast roster was the addition of non-operational medical or training shifts. As for the daily roster, the proposed RCP provided for the following changes to the forecast roster:
·A start time will be allocated for an available.
·A shift (or available) may be cancelled.
·A start time may be altered to a maximum of two hours earlier or later.
·By agreement any other change (subject to the maximum shift length clause) including the insertion of standalone overtime.
The proposed RCP also provided for changes to the daily roster, including: ‘Once posted the daily roster start time can be altered by a maximum of 1 [hour] Brought Forward and 2 [hour] Deferments unless agreed. All Brought Forward and Deferment hours to be paid at 175% Standalone.’
The proposed RCP subsequently became a major subject of the bargaining between the AFULE, the other unions and Aurizon.
In July 2019, Aurizon requested employees in the Bulk division to vote on a proposed new agreement which had not been agreed with the unions. This proposed agreement contained the following provision concerning master rosters for train crew in Appendix 1 – Train Crew Rostering Principles:
1. MASTER ROSTERS
1.1. Each Depot will have at least one master roster.
1.2. The master roster(s) will exhibit all known workings and Rostered Days Off for a depot and will show the sign on and sign off times for each shift.
1.3. The master roster will contain an average of 2.25 Rostered Days Off per week averaged across the roster.
1.4. A master roster may include Leave Relief Lines. The purpose of a Leave Relief Line is to provide relief for absences due to planned leave. The number of Leave Relief Lines will be sufficient to accommodate the minimum annual leave clearance for the number of employees on the roster.
1.5. A master roster will contain an average of 40 hours’ work per week averaged over the Roster Period. The Roster Period will be the same as the pay period.
1.6. Overtime will not be rostered in a Master Roster.
Operation of Relief Lines
. . .
Development of Master Rosters
1.10. Master Rosters will be developed by Aurizon in conjunction with the relevant depot roster committee.
1.11. Each depot may have a roster committee comprising train crew based at the depot to represent employees in developing the master roster. The roster committee will comprise up to three employees, two of whom may be nominated by the unions covered by this Agreement who have coverage of train crew. The third member may be appointed by a method agreed by the train crew at the depot. Where a depot has 50 or more train crew the roster committee may comprise up to four employees.
1.12. Consultation on a new master roster, or on significant changes to a master roster will commence no later than 28 days prior to the proposed implementation of the roster and the consultation period, unless otherwise agreed, will be no less than 14 days.
1.13. Following the consultation period employees affected by the new or changed master roster will have at least 14 days’ notice of the implementation of the roster.
(underlining added)
The proposed agreement also provided for a relatively unrestricted capacity to vary the master roster in the forecast roster, and then vary the forecast roster in the daily roster.
The AFULE campaigned against approval of Aurizon’s proposed agreement, including because the rostering provisions did not provide for an appropriate work-life balance. The result of the vote was that the proposed agreement was not approved, with over 90 per cent of employees voting against it.
Bargaining recommenced on 29 July 2019. In respect of the rostering issue, bargaining proceeded on the basis of the rostering provisions contained in a draft agreement prepared by the AFULE prepared in August 2019. The AFULE’s draft contained the following provisions applicable to master rosters for train crew specifically:
36. The Master Roster
36.1.The master roster will show for all traincrew:
• The shift length and start times of each of your rostered shifts; and
•an average over the Roster cycle of up to 30% of planned shifts on each day as Available and
• RDOs; and
• “EX” day” (Incoming shift).
36.2. Overtime will not be rostered in the master roster.
36.3. The minimum number of RDOs to be included in the master roster is the number of weeks over which the Roster cycles multiplied by 2.375.
It may be observed that the above proposed provisions are, relevantly, substantially the same as clauses 50.2-50.4 of the 2015 Agreement concerning the master roster for the Coal business. The AFULE’s draft provided that the forecast roster could vary the master roster by altering start times by up to four hours earlier or later, and could otherwise be changed by agreement. The daily roster could vary the master roster by converting availables into rostered shifts, an AFD window or ‘not required’, and could alter the start time of a rostered shift by a maximum of three hours. Once posted, the start time of a shift in the daily roster could only be altered once unless otherwise agreed. Specified allowances were to be payable when the start time on a daily roster was changed.
Ultimately, the negotiating parties reached an agreement on all issues, including rostering, and a vote of employees on a proposed agreement occurred over a seven-day period commencing on 4 December 2019. The AFULE supported approval. The 2019 Agreement was ‘made’, within the meaning of s 182(1) of the FW Act, on 11 December 2020 when a majority of employees voted to approve the proposed agreement. The Commission approved the 2019 Agreement on 17 January 2020 and it took effect on 24 January 2020.
Relevant terms of the 2019 Agreement
Clause 63 of the 2019 Agreement establishes the requirement for a master roster to be developed for each depot as follows:
63. MASTER ROSTER DEVELOPMENT - ALL TRAIN CREW
63.1.Each depot must have at least one master roster.
63.2. The Company must develop the master roster or significant changes to the existing master roster in conjunction with the Depot Roster Committee. There will be no more than three significant changes to the master roster in one calendar year, unless agreed by the Depot Roster Committee.
63.3. Provided the majority of affected employees agree, employees may trigger a master roster review and change once per calendar year. This includes, but is not limited to, where it has been identified there has been an excessive use of shift extensions. This is in addition to the three master roster changes referred to in subclause 63.2 and is subject to subclause 63.4.
63.4.Subject to meeting Company requirements, the Depot Roster Committee determines the number of RDOs in the master roster, taking into consideration employee work/ life balance.
63.5.A new master roster must be hung for 14 days prior to implementation in which time employees have seven days to lodge objections and the Company and Depot Roster Committee will attempt to address them or provide reasons why they cannot be addressed.
63.6.The Company cannot implement the roster until the 14 day period referred to in subclause 63.5 above has concluded.
63.7.The Company will notify an affected employee in writing before their position in the master roster is changed for any purpose, with the exception of the following:
63.7.1.an employee who has agreed to the dates of a training block per clause 75 (Training Blocks); and
63.7.2.to accommodate an employee’s special request as per clause 72 (Roster Special Requests).
We have earlier set out clause 77.1 of the 2019 Agreement. Clause 77 in its entirety provides:
77. THE MASTER ROSTER - ALL TRAIN CREW
77.1. The master roster will show for all Train Crew Employees:
77.1.1. The shift length and start times for at least 70% of all known workings;
77.1.2. Available shifts for all other shifts to be spread evenly across each day on average over the Roster Cycle;
77.1.3. RDOs; and
77.1.4. Ex Days (Incoming shifts).
77.2. Subject to meeting Company requirements, the Depot Roster Committee will nominate workings that are shown in the Master Roster.
77.3. Overtime will not be rostered in the master roster.
77.4. The minimum number of RDOs to be included in the master roster is the number of weeks over which the Roster cycles multiplied by 2.25.
Clause 79 of the 2019 Agreement sets out the changes which may be made to the master roster by the forecast roster and clause 80 sets out the changes which may be made to the forecast roster by the daily roster. Clause 81 specifies the changes which may be made to the daily roster once it is posted and the allowances payable to train crew if this is done. The restrictions contained in these provisions are, in substance, the same as those proposed in the AFULE’s draft agreement of August 2019. Indeed, it is apparent that all of the rostering provisions in clauses 77-82 of the 2019 Agreement are modelled, with some specific modifications, on the equivalent provisions in the AFULE’s draft. Clause 77.1.1 contains one of those specific modifications.
The presentation to employees explaining the 2019 Agreement prior to the vote, which Aurizon used to comply with its obligations under s 180(5) of the FW Act, insofar as it dealt with clause 77, merely reproduced or paraphrased the text of clauses 77.1 and 77.2.
Initial rostering dispute
Not long after the 2019 Agreement came into effect, a dispute arose concerning rostering issues, including compliance with clause 77.1.1 (initial rostering dispute). In April 2020, Aurizon instructed depot roster committees to prepare master rosters on the basis that they had to show start times and shift lengths only for 70 per cent of services identified in the MTP. This resulted in master rosters showing less than 70 per cent of designated working shifts as rostered shifts. On 19 May 2020, the AFULE made applications for the Commission to deal with disputes about this issue pursuant to s 739 of the FW Act in respect of two sample depots at Hughenden and Rockhampton. The outcome sought in these applications included that Aurizon ‘acknowledges the entitlement of Train Crew to have a Master Roster containing 70% of workings that are known to them and the Master Roster is amended to reflect 70% of the Train crew[’]s known workings’.
The disputes were resolved when the depot roster committees were reconvened and prepared master rosters which identified 70 per cent of all working shifts on the roster as rostered shifts (with a start time and shift length). This was done by including shifts that ran off a DTP where Aurizon had a sufficient degree of certainty that they would run to a specific location and time, and also some operational shifts placed around known MTP paths that could be used for the coverage of leave or to assist with the operation of MTP services. These new rosters were initially trialled at three depots. On 8 July 2021, Mr Fulton from Aurizon sent Mr McKitrick of the AFULE the following email concerning the new master rosters:
We developed the current Master Rosters for all the Bulk East depots and have been operating under the trial arrangement since March and there haven’t been an[y] major issues identified with the preparation or use of the rosters. Aurizon is willing to continue with this process for Master Roster development for future rosters.
If any issues are raised in the future with the preparation or use of the rosters using this process from either Aurizon or the workers, we would still like to be able to use our continuous improvement process to sit down to work through any issues in consultation with both unions. Can you please confirm that the AFULE is happy for this process to continue to be used and reviewed if required.
Mr McKitrick replied the same day by email as follows:
Thank you for your email. I am glad that the trials have been successful and that there have been benefits to both the company and to Traincrew. From my understanding, the Aurizon Bulk business has never been stronger.
The AFULE can resolve our long standing disputes based on the outcome that Aurizon have given an undertaking to roster in line with the AFULE interpretation of the Aurizon Bulk (Queensland) Enterprise Agreement 2019 going forward, specifically in regards to 70% known workings (Traincrew have a master rostered start time for 70% of their shifts and an unknown start time -AVAILABLE, for 30% of their master rostered shifts) and the elimination of “BLANK” days unless explicitly agreed to by the local roster committee.
The AFULE is certainly happy to continue to work with the Bulk business and participate in future continuous improvement processes/ consultation albeit it on the proviso it relates to improvement and not regression.
Can you please confirm I have understood the intention of your correspondence correctly and once received, the AFULE will notify the Fair Work Commission that our disputes are resolved.
Mr Fulton’s response to this, also the same day, was: ‘I can confirm you are in your understanding of the correspondence’ [sic]. Mr McKitrick responded: ‘Thanks Ian, We will notify FWA’. The AFULE then discontinued its dispute matters in the Commission.
Grain operations
In early 2021, Aurizon acquired a new grain customer, and initially serviced this customer with the use of labour hire train crew at the Goondiwindi depot. Later in the year it acquired a second grain customer, and from this point it began using its own train crew at depots at Goondiwindi and Toowoomba. A third grain customer was acquired in 2022. The current position is that all of the train crew employed by Aurizon at the Goondiwindi and Toowoomba depots only perform grain work and, in addition, about half of the train crew employed at the Acacia Ridge depot perform grain work.
The key difficulty, from a rostering perspective, arising from Aurizon’s acquisition of grain customers is that grain operations are highly flexible as to timing, load type and the start and end location of services. This means that grain operations are not included in QR’s MTPs but are instead scheduled through DTPs, and the DTPs are often the subject of variation. This is less of a difficulty with the Acacia Ridge depot, where there are fewer available paths for particular services, leading to a degree of regularity in DTP paths which can be taken into account in the master roster.
For the Goondiwindi and Toowoomba depots, Aurizon initially used master rosters showing 70 per cent of work shifts as rostered shifts with start times and shift lengths, but these were largely nominal and represented merely Aurizon’s best guess as to when services might be required to run. They often bore no resemblance to the work which train crew ultimately had to perform. The limitations in the 2019 Agreement on the capacity to make changes in or to the daily roster meant that Aurizon:
·often had to pay allowances under the 2019 Agreement for changes to shift start times in the daily roster or overtime to additional employees to work shifts which an employee did not agree to move; and
·frequently had to cancel services because the restrictions in its rostering system under the 2019 Agreement meant that it could not allocate a full train crew to the service.
These difficulties challenged the profitability of Aurizon’s grain operations.
This dispute
Aurizon sought to alter the position in October 2022 by introducing new master rosters for the Goondiwindi and Toowoomba depots which showed no rostered shifts, with all shifts being designated as either available or RDOs. Shifts would generally only become rostered shifts (with a designated start time and shift length) on the daily roster, which is generally issued only 3-5 days ahead of the relevant working day.
Aurizon met with affected employees to explain the proposed new rostering arrangements on 5 October 2022 and, in an ‘Employee Update’ dated 10 October 2022, Aurizon explained the new position to train crew as follows:
…All Aurizon traincrew are engaged under the Aurizon Bulk (QLD) Enterprise Agreement 2019, which outlines rostering guidelines. Given the operational requirements for grain presents issues in the long-term planning environment and services not aligned to a Master Train Plan (MTP), the business is unable to have a detailed Master Roster for at least 70% of all known workings.
Roster Proposal
To acknowledge the unique operational requirements and rostering nuances, the business is proposing the following: -
1. Master Roster will be designed with an even count of RDO’s across the fortnight and rostered days will show as available days.
2. Forecast Roster will align shifts to meet the customer demand and scheduling requirements.
Roster Allowance
In recognition of the Master Roster flexibility (being unable to detail at least 70% of all known workings) a roster allowance of $12,000 per annum will be paid. The allowance will be paid fortnightly and may be reviewed by the business at any time. The payment will not be paid on periods of annual leave, long service leave or personal leave longer than one month and will not be paid on any periods of leave without pay (LWOP).
The business will consult with the relevant employees around Master Roster – RDO patterns to determine a workable roster…
At about the same time, Aurizon sought to initiate discussions with the AFULE to discuss the above proposal.
On 17 October 2022, Aurizon convened the Goondiwindi and Toowoomba depot roster committees to develop new master rosters in line with its proposal. On 20 October 2022, Aurizon posted the master rosters it proposed for the Goondiwindi and Toowoomba depots in order to invite further consultation. On 21 October 2022, the AFULE initiated a dispute pursuant to the dispute resolution procedure in clause 7 of the 2019 Agreement on the basis that the proposed rosters were not compliant with clause 77.1.1 of the 2019 Agreement. The dispute was unable to be resolved at the workplace level and, accordingly, the AFULE made its application for the Commission to deal with the dispute pursuant to s 739 of the FW Act on 28 November 2022.
On 21 December 2022, Aurizon issued a further update to employees about the dispute which stated:
Master Roster Implementation
On Friday 18 November, 2022 the business convened a meeting, in an attempt to resolve the Step 3 Dispute relating to Master Rosters. Unfortunately, at the meeting there was no consensus reached and the dispute remains unresolved.
AFULE State Secretary intimated on 18 November, 2022 that the AFULE would seek Arbitration on the dispute. In the absence of a listing from the AFULE, the business (Aurizon) referred the dispute to be determined by way of Arbitration, this listing was submitted and acknowledged by Fair Work Commission (FWC) on Friday 16 December, 2022.
It is unlikely that the Hearing will be held until February, 2023, in the interim, the business can implement the Master Rosters that were hung for roster consultation on Thursday 20 October, 2022.
The roster committee representatives were involved in formulating the master roster on Tuesday 18 October, 2022 and the business was supportive of the additional RDO’s (4 additional RDO’s in Toowoomba; 2 additional RDO’s in Goondiwindi) in the proposed master rosters, which are above the minimum requirements of the EA.
We continue to acknowledge the master rosters do not have known workings however, this is not a breach of the EA, if a working is not known for the development of a master roster it cannot be shown. We are committed in providing a forecast roster compliant with the Agreement, customer demand and scheduling requirements.
Master Rosters will be implemented on Monday 02 January, 2023.
Roster Allowance
In recognition of the Master Roster flexibility (being unable to detail at least 70% of all known workings) a roster allowance of $12,000 per annum will be paid. The allowance will be paid fortnightly and may be reviewed by the business at any time. The payment will not be paid on periods of annual leave, long service leave or personal leave longer than one month and will not be paid on any periods of leave without pay (LWOP). This allowance will come into effect from Monday 02 January, 2023 to align with the implementation of the Master Roster…
Aurizon implemented the new master rosters on 2 January 2023 as foreshadowed and began paying employees the flexibility allowance of $12,000 per annum. From Aurizon’s perspective, the new system is beneficial as it has required fewer changes to be made by and to daily rosters, and has led to a reduction in the payment of allowances, the payment of overtime and the cancellation of services. From the perspective of train crew at the Goondiwindi and Toowoomba depots, the new system does not provide for an appropriate work-life balance and the allowance does not sufficiently compensate for this.
Submissions
AFULE
In respect of its dispute application, the AFULE’s primary submission is that it should be determined in accordance with the settlement of the initial rostering dispute. In that respect, it submits that:
·a settlement of a dispute under the dispute resolution procedure in clause 7.1 of the 2019 Agreement is binding in the same way as an arbitral determination by the Commission, such that conduct inconsistent with a settlement would constitute a contravention of the clause and s 50 of the FW Act;
·the settlement of the initial rostering dispute (constituted by the master rosters developed in March 2021 conforming to the AFULE’s position and the email exchange of 8 July 2021) involved agreement upon the AFULE’s construction of clause 77.1.1 in respect of all of Aurizon’s operations;
·Aurizon remains bound by that settlement, is estopped from raising any different construction of clause 77.1.1 in the present dispute, and its defence to the dispute application constitutes an abuse of process; and
·the dispute application should be determined on the basis that Aurizon is bound by the construction of clause 77.1.1 which it agreed to in the settlement of the initial rostering dispute, and the question for arbitration should be answered ‘No’.
In the alternative, the AFULE submitted that clause 77.1.1 should be construed consistent with its position. It submitted that the phrase ‘known workings’ was a term of art used by the parties to mean shifts known to employees. Their consensus in this respect was demonstrated by the settlement of the initial rostering dispute and Aurizon’s employee update of 10 October 2022 which acknowledged that the proposed arrangements for the Goondiwindi and Toowoomba depots would not be consistent with the obligation in clause 77.1.1 of the 2019 Agreement.
The AFULE submitted that the obligation in clause 77.1.1 is for Aurizon to tell the employees the start times and shift lengths of 70 per cent of the shifts which they will be working, so that employees know when they will be working. Any difficulty Aurizon may have in knowing when they will require shifts is not to the point. It submitted that the clause permits Aurizon a degree of flexibility in that they only have to provide certainty as to 70 per cent of the shifts which they will be working, and the fact that the flexibility negotiated by Aurizon is not sufficient for its present operations in Toowoomba or Goondiwindi does not inform the construction of the clause.
In respect of the variation application, the AFULE submitted that s 218A of the FW Act, like s 602, is concerned with slip rule problems, with its purpose being to correct obvious and unintended errors and the like in a non-controversial fashion. The variation sought by Aurizon is not of this nature. The AFULE noted that, for the purpose of the variation application, and on the premise that that its position in respect of the dispute application is not accepted, Aurizon concedes that, properly construed, the objective intention of clause 77.1.1 is that the master roster must state 70 per cent of the actual shifts to be worked by employees. In substance, it was submitted, what Aurizon identifies now is a subsequently-acquired belief that such an intention is not convenient to the way in which it wishes to conduct its business. The AFULE submitted that this is not an unintended or accidental deviation from what the parties intended but simply a case of ‘buyer’s remorse’, and that s 218A is not available to remedy this.
Aurizon
In respect of the dispute application, Aurizon submitted that clause 77.1.1 should be construed, and the agreed question answered, on the basis of the following propositions:
·A ‘working’ is not ‘known’ unless it is ‘known’ to those responsible for the construction of the roster, namely the depot roster committees and Aurizon.
·‘Known workings’ for the purpose of the master roster relate to train services which have a designated train path at the time the master roster is required to be issued. Absent this, a working may be anticipated but it is not ‘known’.
·The only services which have a train path at that time are those which have a train path in the MTP, which is issued by QR rather than Aurizon.
·In the absence of an MTP there are no ‘known workings’ which can be included in a master roster.
·The obligation in clause 77.1.1 is limited to inserting a start and finish time for 70 per cent of the ‘workings’ which, by reference to the MTP are ‘known’ at the time the master roster is prepared and issued.
·In those circumstances, the master rosters implemented for the Goondiwindi and Toowoomba depots in January 2023 comply with clause 77 of the 2019 Agreement.
Aurizon identified six ‘clear principles’ which inform how clause 77 works in its operational context:
(1)There are two distinct concepts of work allocation: rostered shifts, which are firm allocations of work with allocated start and finish times, and available shifts, which have no start and finish time and are not a firm allocation of work.
(2)The obligation in clause 77.1.1 to allocate rostered shifts is limited by reference to work periods where there are ‘known workings’, namely allocated train movements. The obligation in clause 77.1.1 does not refer to ‘rostered shifts’ but to ‘known workings’. Clauses 61.4, 61.5, 73.2 and 74.2 of the 2019 Agreement use the word ‘workings’ to refer to actual train services in an employee’s roster. This strongly suggests that the intention was not to refer to shifts, or rostered shifts, but rather to actual train movements, contrary to the AFULE’s submissions which require ‘all known workings’ to be equated to ‘all shifts’.
(3)‘Known’ requires a state of certainty. A ‘working’ which is ‘anticipated’ or ‘expected’ cannot be known.
(4)The requirement that ‘workings’ be ‘known’ must mean known to the depot roster committee and Aurizon, to enable them to discharge the obligation in clause 77.1.1. It cannot mean ‘known’ to employees, since employees only ‘know’ anything from the master roster itself.
(5)The ‘workings’ must be ‘known’ at the time the master roster is prepared.
(6)A ‘working’ is only ‘known’ if it is in the QR MTP. If there is no MTP applicable to the depots where work is allocated, there are no ‘known workings’ for the purposes of clause 77.1.1.
Aurizon submitted that a purposive approach to the construction of clause 77.1.1 of the 2019 Agreement could not reasonably lead to reading it as requiring the depot roster committees and Aurizon to create essentially fictitious or speculative rosters which contain start and finish times which do not necessarily bear any resemblance at all to the work actually required or even permitted to be carried out.
Aurizon rejected the AFULE’s submission that the dispute application should be settled on the same basis as the initial rostering dispute, submitting that:
·the settlement only related to those disputes and their facts;
·Mr Fulton and Mr McKitrick had no authority to bind Aurizon or its employees;
·the earlier disputes did not relate to master rosters where no MTP existed;
·the trial rosters which settled the initial rostering dispute were not created by reference to the interpretation of ‘known workings’ as articulated by the AFULE, but instead were created by reference to applicable MTPs and DTPs that provided a degree of certainty about the particular service having regard to its nature; and
·the email exchange of 8 July 2021 cannot be read as involving agreement as to the interpretation of clause 77.1.1 now advanced by the AFULE.
In relation to its variation application, Aurizon submitted that the amendment it sought was only ‘required’ if the AFULE’s interpretation of clause 77.1.1 was determined to be correct, and its submissions presumed that outcome. It submitted that this outcome would mean that:
·in circumstances where less than 70 per cent of the services have a designated train path, the master roster would have to include shift length and start times for shifts when neither Aurizon nor the employees rostered know whether train crew services will actually be required at that time or, if they are required, what the actual train path will be;
·Aurizon would be required to create a master roster which was partly fictitious (or at least speculative) because it would include start times and shift lengths which do not necessarily bear any resemblance to work able to be allocated to the shift; and
·as evidenced by Aurizon’s experience with its new grain business serviced by its Toowoomba and Goondiwindi depots, this has significant adverse flow-on effects on Aurizon’s ability to address client requirements and provide a cost-effective, certain service.
Aurizon submitted that these effects demonstrate that clause 77.1 contains an obvious error or defect which should be remedied by the Commission. It submitted that s 218A of the FW Act allows the Commission to amend enterprise agreements in substance or form, and to alter the legal effect and operation of an enterprise agreement term even when to do so results in a different bargain between the parties. The relevant ‘obvious error’ here, Aurizon submitted, was its own error in proposing a term in clause 77.1.1 of the 2019 Agreement which did not sufficiently anticipate the future circumstance that it would expand its service into areas where there was no basis at all to include start and finish times in the applicable master roster, and therefore no reasonable capacity to include start and finish times for at least 70 per cent of the workings. The ‘obvious defect’ was that clause 77.1.1 commits Aurizon to inserting fictitious or speculative start and finish times into a master roster with the virtual certainty that the information is incorrect and thereby misleading employees, and which, in the context of the roster system and pay rules read as a whole, creates a wholly uncommercial situation for Aurizon. While these were not ‘obvious’ at the time the 2019 Agreement was made, they have become ‘obvious’ in the circumstances of Aurizon grappling to apply clause 77.1.1 to its newly-acquired grain operations. Aurizon submitted that its proposed variation would:
·provide a specific basis upon which Aurizon and depot roster committees can create a master roster by having regard to an MTP;
·not alter how master rosters are created where an MTP exists for a depot;
·permit master rosters to be created which do not include a minimum amount of ‘known workings’ only where it is not practicable and where there is no MTP;
·not require Aurizon and depot roster committees to include ‘workings’ in the master roster with start and finish times where there is no basis to do so;
·provide Aurizon with the necessary operational flexibility to provide services to its customers whose operations are inherently unpredictable;
·provide more stability to the employees at these depots about when they will actually be required to work, by reducing the number of changes between the master roster and daily rosters; and
·clarify that clause 77.1 does not require an uninformed ‘master roster’ that does not reflect known workings (and therefore would not provide certainty about actual working arrangements across the roster period).
Consideration
The variation application
Although Aurizon seeks that its variation application only be determined in the event that the dispute application is determined contrary to its position, we consider it is convenient to consider and determine the variation application first, for two reasons:
(1)These matters were referred to a Full Bench, on Aurizon’s application, on the basis that ‘early guidance can be given concerning the proper construction and application of s 218A’.[4] We do not consider therefore that the determination of the variation application should only be dealt with on a contingent basis.
(2)The task of construing the expression ‘known workings’ in order to determine the dispute application is of such difficulty that we would prefer to resolve the dispute by varying clause 77.1 in appropriate terms should we have the power to do so.
Section 218A was added to the FW Act by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth). The section provides:
218A Variation of enterprise agreements to correct or amend errors, defects or irregularities
(1) The FWC may vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form).
(2) The FWC may vary an enterprise agreement under subsection (1):
(a) on its own initiative; or
(b) on application by any of the following:
(i) one or more of the employers covered by the agreement;
(ii) an employee covered by the agreement;
(iii) an employee organisation covered by the agreement.
(3) If the FWC varies an enterprise agreement under subsection (1), the variation operates from the day specified in the decision to vary the agreement.
The Revised Explanatory Memorandum (REM) for the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 states in respect of the new s 218A:
812. New subsection 218A(1) would empower the FWC, at its discretion, to vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (ie, without the need for a Full Bench appeal). For example, the FWC could correct typographical errors or obvious omissions. The FWC would be able to decide how corrections are made.
813. This addresses a regulatory gap, as the existing ‘slip rule’ in section 602 enables the FWC’s decisions, but not enterprise agreements, to be corrected: see Advantaged Care Pty Ltd v Health Services Union [2021] FWCFB 453.
814. By new subsection 218A(2), the FWC would be able to vary an enterprise agreement on its own initiative, or on application by a specified party.
815. By new subsection 218A(3), the variation would operate from the day specified in the FWC’s decision.
816. The new section would complement the FWC’s existing power to vary enterprise agreements to remove ambiguity or uncertainty (existing sections 217-217A).
Section 602 of the FW Act, referred to in the above passage from the REM, has been part of the FW Act since its enactment. It provides:
602 Correcting obvious errors etc. in relation to the FWC’s decisions
(1) The FWC may correct or amend any obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the FWC (other than an error, defect or irregularity in a modern award or national minimum wage order).
Note 1: If the FWC makes a decision to make an instrument, the FWC may correct etc. the instrument under this section (see subsection 598(2)).
Note 2: The FWC corrects modern awards and national minimum wage orders under sections 160 and 296.
(2) The FWC may correct or amend the error, defect or irregularity:
(a) on its own initiative; or
(b) on application.
As the REM indicates, s 602 has been construed and applied as a statutory equivalent of the ‘slip rule’ under which courts may correct inadvertent errors in their order. In RotoMetrics Australia Pty Ltd v AMWU,[5] a Full Bench of the Commission characterised s 602 as follows:
[29] Section 602 is intended to be a statutory analogue of the ‘slip rule’ used by superior courts to correct certain errors in orders. It must be applied with caution and only in circumstances in which the use of the ‘slip rule’ is permissible:
·‘where there has been an unintentional omission in an Order or judgement of the Court;
·where an Order or judgment does not conform with the intention of the Court, and would have been made if the issue had been mentioned during the proceedings;
·where there are no material differences of opinion between the parties; it is not suitable to apply this rule where it concerns a matter of controversy; and
·where the error is manifestly clear; where an “officious bystander would reply when asked if the amendment was appropriate: “Of course”.’
(footnotes omitted)
As stated in the REM, the Full Bench in Advantaged Care Pty Ltd v Health Services Union[6] determined that an enterprise agreement is not an instrument made by the Commission and that consequently there is no power to correct or amend an obvious error, defect or irregularity in an enterprise agreement pursuant to s 602.[7]
As also indicated in the REM, there are existing provisions by which an enterprise agreement may be amended. The most significant of these is s 217, which provides:
217 Variation of an enterprise agreement to remove an ambiguity or uncertainty
(1) The FWC may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:
(a) one or more of the employers covered by the agreement;
(b) an employee covered by the agreement;
(c) an employee organisation covered by the agreement.
(2) If the FWC varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.
In Bianco Walling Pty Ltd v CFMMEU[8] (Bianco Walling), the Federal Court Full Court stated the following propositions concerning the construction and application of s 217:
[67] … Ambiguity exists when a provision in an enterprise agreement is capable of more than one meaning. See in this respect the discussion by Gray J of the concept of ambiguity in Printing & Kindred Industries Union v Davies Bros Ltd (1986) 18 IR 444 at 449. The ambiguity may be apparent on the face of the document or may become apparent only when extrinsic evidence is adduced. A provision may be ambiguous even though it is capable of interpretation: Cannon Hill Services Pty Ltd v Australasian Meat Industry Employees Union [2016] FWC 7256 at [8]. This means that it was not necessary for the FWC to interpret the 2016 Agreement in order to reach a conclusion concerning the presence of ambiguity or uncertainty. …
…
[70] It may well be the case that the mere existence of rival contentions as to the meaning or application of a provision or provisions in an enterprise agreement is not sufficient to indicate ambiguity or uncertainty for the purposes of s 217: Tenix Defence Systems Pty Limited Certified Agreement 2001‑2004 [2002] AIRC 531, PR917548 at [49]. Instead, the FWC is to consider the matter objectively: Beltana No. 1 Salaried Staff Certified Agreement 2001 [2003] AIRC 608, PR932468 at [23]. In that objective consideration, an assessment of the matters relied upon for the competing contentions will be important, including evidence that the parties to the agreement had a common understanding as to the meaning of the terms they used in their agreement. A reading of the enterprise agreement as a whole may indicate ambiguity or uncertainty in one or more of its clauses. And, as was noted by the Full Bench in Tenix, “the [FWC] will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions advanced and an arguable case is made out for more than one contention”, at [31].
. . .
[73] Secondly, the Deputy President appears to have treated the words “ambiguity” and “uncertainty” in s 217 as though they are synonyms. Earlier, we referred to the legislative history of s 217. The repeated usage of the two terms in the predecessors of s 217 and in s 217 suggests by itself that the two terms are used with different meanings.
[74] The Macquarie Dictionary defines the word “ambiguity” as:
1.doubtfulness or uncertainty of meaning … 2. An equivocal or ambiguous word or expression …
It defines the term “uncertain” as (relevantly):
2.not definitely or surely known; doubtful. 2. Not confident, assured or decided. 3. Not fixed or determined. 4. Doubtful; vague; distinct …
[75] Although there is some relationship between these meanings, the definitions indicate that the two terms are not synonymous. There may, for example, be uncertainty in an enterprise agreement even when its terms are not ambiguous. The uncertainty may arise from the application of the unambiguous terms to a given set of circumstances. The distinction between patent ambiguity (linguistic ambiguity) and latent ambiguity (ambiguity in application) provides an illustration by analogy…
The enactment of s 218A in addition to the pre-existing power in s 217 to vary enterprise agreements indicates that it was intended to have a sphere of operation separate to and distinct from s 217. Therefore, s 218A is not to be construed or applied on the basis that ‘an obvious error, defect or irregularity’ would encompass the type of ambiguity or uncertainty (as discussed in Bianco Walling) that is correctable under s 217. Rather, the text of s 218A(1), including its reflection of the language of s 602, the established construction of s 602 as an analogue of the slip rule and the REM’s identification of the statutory purpose of s 218A all indicate that the power in s 218A to vary an enterprise agreement to correct or amend an obvious error, defect or irregularity is confined to the remediation of clearly apparent and unintentional mistakes in circumstances not susceptible to controversy. Aurizon’s submission that s 218A empowers the Commission ‘to alter the legal effect and operation of an enterprise agreement term even when to do so results in a different “bargain” between the parties’ is rejected since it would extend the operation of the provision beyond mere inadvertency and into the realm of s 217.
In light of these conclusions, Aurizon’s variation application is untenable. It is not concerned with the correction of any unintentional and obvious error, defect or irregularity in the 2019 Agreement itself. Rather, on the premise upon which it is advanced, it seeks to alter the meaning, construed as intended, of a provision of the Agreement. There can be no error, defect or irregularity within the meaning of s 218A where the text of a provision reflects the intended meaning. The misconceived nature of Aurizon’s position is exposed in its identification of the requisite error as being its own error in the bargaining process, in not anticipating the consequences of the provision it agreed to. Section 218A is plainly not concerned with the correction of errors which parties retrospectively perceive they made in the bargaining process. Seeking to use s 218A in this way would be akin to a union applying under the section to vary an enterprise agreement to obtain higher wage increases because it did not correctly anticipate the future rate of inflation during bargaining.
Accordingly, we dismiss Aurizon’s variation application.
We make the observation that Aurizon’s application is one that could readily have been made under s 217. As we discuss later in relation to the dispute application, the use of the expression ‘known workings’ in clause 77.1 of the 2019 Agreement is plainly ambiguous and gives rise to uncertainty. However, it did not, and s 217 — unlike s 218A — does not allow for the Commission to act on its own initiative.
The dispute application
At the outset, we reject the AFULE’s submission that the determination of this dispute is governed (whether because of estoppel or abuse of process or by combined force of clause 7.1 of the 2019 Agreement and s 50 of the FW Act) by the outcome of the initial rostering dispute. The practical resolution of that dispute, whereby Aurizon met the AFULE’s concerns by using some shifts run off sufficiently predictable DTPs and some other operational shifts (see paragraph [45] above) to achieve a result whereby 70 per cent of working shifts had a designated start time and shift length, did not of itself involve a concession that the AFULE’s interpretation of clause 77.1 was correct, nor was it necessarily inconsistent with the interpretation of the clause which Aurizon now advances. As for the email exchange of 8 July 2021, Mr Fulton’s reply to Mr McKitrick’s email appears to us to only have confirmed that Mr McKitrick’s understanding of Mr Fulton’s own earlier email was correct. Mr Fulton certainly did not give the undertaking requested by Mr McKitrick that Aurizon would roster in line with the AFULE’s interpretation of clause 77.1. That the AFULE subsequently made the judgment to discontinue its proceedings before the Commission on the basis of Mr Fulton’s reply email cannot result in his email being assigned a meaning which its words cannot reasonably be read as conveying.
The determination of the dispute application therefore rests, as earlier stated, on the proper construction of the expression ‘known workings’ in clause 77.1.
It appears to us that the text of clause 77.1, considered in isolation, may be read in two ways. The first is that ‘known workings’ are all shifts appearing on the master roster during which work is to be performed. They are ‘known’ in the sense that those developing the roster are able to identify on the roster when (that is, on what days) work will be required to be performed by each employee. ‘Known workings’ fall into at least two categories: shifts for which the start time and shift length are shown, and available shifts. Ex Days may constitute a third category, although these were not addressed in the parties’ submissions. RDOs are non-working days and are therefore not ‘known workings’. The requirement in clause 77.1.1 is therefore to identify the start time and shift length for at least 70 per cent of all working shifts designated on the roster. Available shifts, and perhaps Ex Days, make up the balance and therefore may only constitute 30 per cent or less of all work shifts designated on the master roster.
The second is that ‘known workings’ means, in the context of a provision concerned with train crew, actual rail services which it is known will be required to be performed at the time that the master roster is prepared. This knowledge will primarily, if not solely, be derived from train paths identified in the MTP. Under clause 77.1.1, a start time and shift length must be specified for at least 70 per cent of these ‘known workings’. The rest of the ‘known workings’ may be designated as available shifts without a specified start time and shift length. However, there may also be other available days designated which are not referable to any ‘known workings’ but are rather simply reserved work days to provide the labour capacity to deal with subsequent contingencies. Under this approach, available shifts may exceed 30 per cent of all designated working shifts. Indeed, leaving aside Ex Days, all working days may be designated as available if there are no ‘known workings’ (for example, because there is no MTP).
There is no definition of ‘known workings’ in the interpretation clause of the 2019 Agreement (clause 5), and the expression is not used anywhere else in the 2019 Agreement. The ordinary meaning of the word ‘workings’, used as a plural noun, is of wide generality and is apt to fit into either of the above interpretations. The addition of the adjective ‘known’, without specification of who the workings are known to, does not make the position any clearer. We consider that both of the above interpretations are reasonably arguable and that clause 77.1 is accordingly ambiguous (in the sense discussed in Bianco Walling).
Both parties sought to resolve this ambiguity by reference to extrinsic evidence of statements made by those who negotiated the terms of the 2019 Agreement, and their thought processes, during the course of bargaining. As earlier stated, we have not set out the detail of this evidence, nor will we have regard to it, because it is merely demonstrative of the subjective intentions and expectations of the negotiating parties and is not probative of their common intention, which must be identified objectively.[9] However, we will return to some objective background facts which attended the making of the 2019 Agreement.
As outlined above, the AFULE submitted that ‘known workings’, as a composite phrase, is a term of art — that is, ‘a word or phrase used in a precise sense in a particular subject or field’[10] — the meaning of which was known to those who made the 2019 Agreement. It sought to make good this submission by reference to predecessor instruments, and decisions concerning those instruments, in which the expression has been used. Aurizon likewise relied upon material of this nature to support its position.
‘Known workings’ is not an expression which has any history of usage in industrial relations generally. However, it appears to have some recent history of usage in the rail industry in Queensland. The starting point for consideration is the QR Limited Traincrew Union Collective Workplace Agreement 2009[11] (QR 2009 Agreement), which covered the freight business of QR which was later privatised and ultimately became Aurizon. The expression ‘known workings’ is used in the QR 2009 Agreement in connection with rostering. Clause 66.1.1 provided for every depot to have a ‘master diagram’, which was defined in clause 12 as ‘a table outlining the anticipated work required for a depot during a nominated timeframe’ and was the equivalent of the master roster. Clause 66.1.2 set out principles to be applied to the development of each master diagram. One of these principles was:
The allocation of known workings, availability and leisure periods must ensure that business, employee and occupational health and safety needs are balanced.
Clause 67.2 also provided:
67.2Amount of Work to be Included in Master Diagrams
When formulating master diagrams approximately 80% of known workings are to be incorporated in the master diagrams to enable flexibility, an equitable distribution of hours and to facilitate the rostering process.
This ratio may be varied on a depot-by-depot basis though consultation with local workplace representatives having regard to business needs, employees’ needs, training and occupational health and safety requirements.
It is apparent that the above provisions use ‘known workings’ in two different senses. In clause 66.1.2, ‘known workings’ is used to describe one of three categories of designation in the master diagram, with the other two being available and leisure periods (the equivalent of RDOs). This suggests that ‘known workings’ is being used as an equivalent for rostered shifts — that is, shifts which display a start time and shift length in the master diagram. This meaning aligns with the AFULE’s position. However, clause 67.2 suggests that ‘known workings’ are an input into the development of the master diagram which are derived from somewhere else. Other provisions of the QR 2009 Agreement which refer to the master diagram being aligned to the MTP or the Coal Train Plan (CTP) infer that these are the source of the ‘known workings’. This use of ‘known workings’ aligns with Aurizon’s position.
This duality in meaning is illustrated in a decision made in 2010, RTBU, AFULE v QR Limited,[12] which concerned a dispute about whether the rostering provisions had been complied with at a particular depot (Bluff) which performed coal haulage work. The decision at different points in its summary of the evidence and submissions as well as in its consideration refers to ‘known workings’ in both of the senses described above, without any clear distinction being made (noting that the determination of the dispute in the decision did not turn on the proper construction of the expression). For example, QR is recorded as submitting the following (at [81]):
… Approximately 16% of shifts in the Bluff master diagram are available shifts. The rest of the shifts in the roster are allocated to known workings…
QR also submitted (at [84]):
… Even if the point is able to be substantiated, it does not preclude available shifts, which are not set by the master diagram, from being rostered for lengths in excess of shift lengths which are set for known workings in the master diagram…
Both these submissions refer to ‘known workings’ as something appearing in the master diagram, and in contradistinction to available shifts. This usage suggests, again, that the expression is used to describe rostered shifts. A further extract from QR’s submissions (at [86]) states:
Available shifts appear in the master diagram, but are set by the daily roster. QR is not required by any clause of the Agreement to convert available shifts into known workings.
This clearly uses ‘known workings’ as synonymous with rostered shifts. However, in the next sentence, it is recorded that QR submitted:
Under clause 67.2 of the Agreement, QR is only required to incorporate 80% of known workings into a master diagram and the uncontested evidence of Mr O’Brien is that the Bluff master diagram contains 100% of known workings, which represented a concession on the part of QR.
This treats ‘known workings’ as an input into the development of the master diagram. In the decision’s consideration, ‘known workings’ are described as a type of shift that is ‘rostered to meet specific operational needs’ which are aligned with the CTP.[13] However, the decision later states: ‘QR is required by clause 67.2 of the Agreement to put only 80% of known workings into a master diagram to enable flexibility and an equitable distribution of hours’.[14] The former reference treats ‘known workings’ as a type of shift appearing on the master diagram, while the latter treats it as an input to the master diagram.
The agreement which replaced the QR 2009 Agreement and preceded the 2015 Agreement, the QR National Traincrew Enterprise Agreement 2010,[15] contained provisions (clauses 78.2.3 and 79.10 respectively) in the same terms as the part of clause 66.1.2 and clause 67.2 of the QR 2009 Agreement set out above.
Another QR agreement made in 2009 uses the expression ‘known workings’. Clause 86 of the QR Passenger Pty Ltd Traincrew Union Collective Workplace Agreement 2009 (2009 Passenger Agreement), which covered train crew working in QR’s passenger business, relevantly provided:
86. Amount of work to be included in master rosters
When formulating master rosters all known workings are to be incorporated in the master roster to enable flexibility, an equitable distribution of hours and to facilitate the rostering process.
. . .
This clause more clearly treats ‘known workings’ as an input into the development of the master roster. In a 2013 decision concerning a dispute arising under this agreement (AFULE v Queensland Rail Limited[16]), but which did not specifically concern the proper construction of clause 86 above, the Commission said: ‘By virtue of clause 86 of the Agreement, when formulating master rosters, all known workings (ie. movements of specific trains), must be included in the master roster’ (underlining added).[17] This is a meaning which aligns with Aurizon’s position in this matter.
Finally, clause 80 of the Queensland Rail Traincrew Agreement 2017[18] which also covered train crew working in QR’s passenger business, and thus was a successor to the 2009 Passenger Agreement, dealt with the subject of the ‘Master Roster’. The expression ‘Master Roster’ was defined in the glossary for the agreement in Schedule 1 as meaning: ‘an amount of known workings and leisure periods for a depot’. In the context of this definition, ‘known workings’ can only be read as referring to any rostered work shifts — a meaning which aligns with the AFULE’s position. The ‘rostering principles’ for the Master Roster set out in clauses 80.4 to 80.7 include, at clause 80.5.1, a requirement that ‘The Master Roster must reflect actual workings unless otherwise agreed’. It appears that, here, the different expression ‘actual workings’ is used with a meaning similar to that which Aurizon seeks to ascribe to ‘known workings’. The provisions referred to are repeated in the agreement which currently applies to QR’s passenger business, the Queensland Rail Traincrew Enterprise Agreement 2020[19] (in Schedule 1 and clause 88.5 respectively).
Although our review of the above agreements and decisions indicates that the expression ‘known workings’ has been used in connection with master rosters in the Queensland rail industry, no consistent meaning is identifiable. Both the AFULE and Aurizon are able to obtain support for their respective positions from this material. A word or phrase cannot be considered a term of art where there is uncertainty or debate as to its meaning and, accordingly, the AFULE’s submission in this respect must be rejected.[20] Likewise, considered as extrinsic material, the agreements and decisions we have reviewed provide little assistance in resolving the issue in dispute.
We next consider Aurizon’s submission that the use of the word ‘workings’ in provisions of the 2019 Agreement other than clause 77 indicates that ‘workings’ means actual train services in an employee’s roster, not shifts or rostered shifts. We cannot accept that submission because, again, no clear or consistent meaning is ascertainable in the eleven instances in which ‘workings’ is used in the 2019 Agreement outside of clause 77.
In respect of maintenance employees under the Agreement (who do not work on actual train services), clauses 5.1, 50.7.5, 51.3 and 51.7 use the expression ‘rostered workings’ in a context which indicates that it is synonymous with ‘rostered shifts’. For example, clause 50.7.5 provides: ‘An employee will be rostered to have a 10 hour break between rostered workings’. The immediately-following provision (clause 50.7.6) provides: ‘Where possible a 12 hour break should be provided between 12 hour shifts’. Read together, and understanding that these provisions apply to maintenance work, it is apparent that ‘rostered workings’ and ‘shift’ are used interchangeably.
There are also three provisions which simply use the word ‘workings’ in connection with maintenance work. Clause 51.14 provides:
51.14. The weekly roster will be developed to ensure that occupational health and safety considerations as well as any known work programs and staff availability are accommodated subject to business and operational requirements, and as necessary may alter the workings of the Master Roster.
Textually and contextually, it is reasonably apparent that the ‘workings’ of the master roster are simply shifts displayed on the master roster, which may be altered by the weekly roster to take into the contingencies identified in the clause. However, in the two other provisions, it appears that a different meaning is intended. Clauses 56.26 and 56.27 refer to attendance at ‘workings outside the Rollingstock Maintenance Depot at Derailments’. In these provisions, ‘workings’ refers to a specific type of work task, not a shift as such. However, it is also not a reference to an actual train movement.
In relation to train crew, clause 61.4 provides that clauses 61.1 and 61.7 (which apply specifically to ‘tucker box jobs’, being work which requires an overnight layover) do not apply to ‘these rostered workings’, being ‘layover jobs involving more than two shifts and/or more than one layover on the existing Linfox service from Townsville to Cairns’. In this context, ‘rostered working’ may be understood as referring to actual train services of a specific class. However, clause 61.5 immediately following provides:
61.5. If, after the Commencement Date of the Agreement, the Company wishes to roster new layover jobs involving more than two shifts and/or more than one layover, agreement with all affected employees is required. Where agreement has been reached, subclause 61.7 will not apply to those rostered workings.
Here, ‘those rostered workings’ refer to potential future rostered shifts or work with particular characteristics, and cannot be read as referring to any actual train service, contrary to Aurizon’s submission.
Clause 73 deals with ‘Roster Notification’ for train crew. Clause 73.1 refers to Aurizon’s intention to implement an automated, 24-hour system ‘for the purpose of receiving audible notification of the start time of their shift (Call Time)’. Clause 73.2 then provides that ‘[t]he automated system will have a feature where employees must acknowledge the notification of their rostered workings at their Call Time’. Given that what is notified by the system, according to clause 73.1, is the shift start time, then the reference to notification of ‘rostered workings’ in clause 73.2 appears to mean the same thing, that is, the shift start time. This is also contrary to Aurizon’s submission.
Finally, clause 74 provides:
74. TRAIN WORKING - ALL TRAIN CREW
74.1. Employees will be advised at/by their Call Time if they are rostered on a shift that would require them to work on a train that is not equipped with a microwave oven.
74.2. Reasonable endeavours will be made to notify employees of these workings, however, subject to changes in the day of operations at times this may not be achieved.
The context of the clause as a whole makes it reasonably apparent that ‘these workings’ in clause 74.2 refers to a shift which requires work on a train without a microwave. That is not a reference to an actual train movement as such.
We therefore consider that the use of the word ‘workings’ other than in clause 77 provides little contextual assistance in construing clause 77.1.
There are however some contextual matters of an objective nature which are of greater assistance in construing clause 77.1. First, the 2019 Agreement was made against the background of the 2015 Agreement. As earlier explained, clause 51.2 of the 2015 Agreement applied no restrictions to the proportion of rostered shifts and available shifts in the master roster for the Freight business (now the Bulk business). However, clause 50.2, which applied to the master roster for the Coal business, did contain an important restriction: it limited the proportion of available shifts on each day to an average over the roster cycle of ‘up to 30% of planned shifts’ (underlining added). ‘Planned shifts’ was the expression which the 2015 Agreement used to describe the totality of working shifts on the roster — that is, the sum of rostered shifts and available shifts. This is the same meaning which the AFULE now seeks to ascribe to ‘known workings’ in clause 77.1 of the 2019 Agreement, but that expression was not used for this purpose (or at all) in the 2015 Agreement.
Second, the AFULE’s proposed RCP, which was the genesis and subject matter of the initial bargaining concerning the master roster provisions in the 2019 Agreement,[21] included a claim for ‘100% of known workings to go into the Master Roster’ together with a proposed requirement to ‘[i]nclude Start and Finish time of each shift’. This use of ‘known workings’ characterises it as an input into the development of the master roster, not something indicated by the master roster once developed. Further, the use of ‘known workings’ in this way in the claim cannot have borne the same meaning as that which the AFULE seeks to ascribe to the expression in clause 77.1. If ‘known workings’ simply means working shifts on the master roster, it means nothing to say that the master roster should show 100 per cent of all working shifts. Further, if all working shifts were to have an indicated start and finish time on the master roster, then it must logically follow that there would never be any available shifts shown on the roster. However, the proposed RCP provisions for the daily roster clearly contemplate that there would be available shifts on the roster which may have a start time designated, or be cancelled, in the daily roster.
In short, the AFULE’s currently-proposed interpretation of ‘known workings’ does not make sense when applied to its 2018 proposed RCP. However, interpreting the expression to mean actual train movements known to be required when the master roster is developed does work if applied to the RCP. The RCP would on this approach be read as requiring that all known train movements be incorporated into the master roster as shifts with a start and finish time, with the balance of working shifts being designated as available. This would provide employees in the Bulk business with a significant new protection that did not exist in clause 51.2 of the 2015 Agreement, which did not require that any number of proportion of shifts have a designated start time or shift length. Of course, this must be assessed in the business context applicable at the time whereby all Bulk business depots operated off MTPs and there was no grain work being performed. That is, it is unlikely to have been in contemplation when the RCP was developed and discussed that there might in future be depots without an MTP.
Third, the same propositions apply to the provisions concerning master rosters in Appendix 1 to the proposed agreement which Aurizon asked employees to vote upon in July 2019.
Fourth, when bargaining resumed after the rejection of Aurizon’s proposed agreement, it proceeded in respect of rostering upon a new claim advanced by the AFULE in August 2019 which sought the same protection, in relevantly the same terms, as contained in clause 50.2 of the 2015 Agreement for master rosters in the Coal business. That is, it sought a maximum of 30 per cent of ‘planned shifts’ — not ‘known workings’— to be designated as available. It may be inferred that ‘planned shifts’ and ‘known workings’ were expressions with different meanings.
Fifth, clause 77.1.1 of the 2019 Agreement as made uses the expression ‘known workings’ rather than ‘planned shifts’. There is no doubt that if clause 77.1.1 said ‘The shift length and start times for at least 70% of all planned shifts’, the AFULE’s position would have to be upheld. However, the departure from the expression ‘planned shifts’ used in the AFULE’s August 2019 claim and the use of the expression ‘known workings’ in the final agreement again suggests a common understanding that these expressions had different meanings.
These contextual matters favour the second of the two available interpretations of clause 77.1, as set out in paragraph [83]. In addition, there is one textual matter in the 2019 Agreement which favours this interpretation. Clause 77.2 of the 2019 Agreement provides that ‘Subject to meeting Company requirements, the Depot Roster Committee will nominate workings that are shown in the Master Roster’. The placement of this provision immediately after clause 77.1, and as part of clause 77 as a whole, strongly suggests that the word ‘workings’ in clause 77.2 is to be read as referable to the ‘known workings’ in clause 77.1.1. The reference to such workings being ‘shown’ in the master roster may therefore be reasonably understood to refer to the requirement in clause 77.1.1 to specify the shift length and start time for at least 70 per cent of such workings. In short, subject to meeting Aurizon’s (presumably operational) requirements, it is for the depot roster committee to decide which workings will have a shift length and start time specified such as to meet the minimum 70 per cent requirement in clause 77.1.1. This in turn indicates that the relevant workings must be ‘known’ to the depot roster committee, and Aurizon, prior to the development of the master roster pursuant to clause 63.2 and its initial publication pursuant to clause 63.5. That is, the ‘known workings’ are an informational input into the development of the roster rather than a product of the development of the roster which becomes known to employees upon publication.
Finally, in a finely-balanced exercise in construction such as this, it is necessary to consider which of the available interpretations accords with business common sense.[22] We do not consider that a reading of clause 77.1 which requires the master roster to specify start times and shift lengths for train crew in circumstances where neither Aurizon nor the depot roster committee has any knowledge of the actual train movements that will be required to be conducted on the relevant day would accord with business common sense, since it would require a speculative exercise resulting in a largely fictional roster. This position is exacerbated by the fact that the 2019 Agreement limits the circumstances in which the master roster can subsequently be varied by the forecast roster or the daily roster when there is likely to be greater knowledge of the actual train movements required. That outcome cannot reasonably be regarded as representing the common intention of those who made the 2019 Agreement.
We note that, in its Employee Update of 10 October 2022, Aurizon appears on one view to have considered that the master rosters it proposed to adopt for the Goondiwindi and Toowoomba depots would not comply with clause 77.1.1 of the 2019 Agreement — a position at variance with its submissions before us. However, a subjective view expressed about the meaning of clause 77.1.1 well after the making of the 2019 Agreement cannot be given weight in the construction of the clause.
Conclusion and final observation
Accordingly, for the above reasons, we prefer the second of the two available interpretations of clause 77.1.1 set out in paragraph [83] above. However, the evidence before us does not permit us to answer the question posed for arbitration. Although the absence of an MTP for the Goondiwindi and Toowoomba depots means that the primary source for information concerning known workings does not exist, the evidence before us, including that concerning the resolution of the initial rostering dispute, shows that known workings may also be identified from previous services run off DTPs where Aurizon has confidence that the service will run again in accordance with the DTP. It is not clear whether any known workings could have been identified for the master rosters issued for the Goondiwindi and Toowoomba depots on 2 January 2023 in this way rather than simply by showing all working shifts as available shifts. We direct the parties to confer on this issue and report back in writing to the presiding member’s chambers when convenient.
We make the final observation that the outcome we have determined is in many ways unsatisfactory. It has been reached on the basis of fairly marginal factors in circumstances where the text of clause 77.1.1 of the 2019 Agreement is, on its face, highly ambiguous. The provision is also uncertain, in the sense discussed in Bianco Walling, in that the operating premise at the time that the 2019 Agreement was negotiated and made was that master rosters would be developed on the basis of MTPs, and the dispute here has arisen because the provision must now be applied to circumstances arising after the 2019 Agreement was made where there are no MTPs. It would have been better for the parties to have resolved their dispute by agreeing upon a bespoke variation to the 2019 Agreement to accommodate the specific circumstances of the Goondiwindi and Toowoomba depots. We note that, notwithstanding that we have, with considerable difficulty, been able to arrive at what we consider to be the preferable construction of clause 77.1.1, it remains open for either party to make an application under s 217 of the FW Act to vary the clause to remove the ambiguity and uncertainty we have identified.
PRESIDENT
Appearances:
D Williams, T Walthall and A Smith, solicitors, for Aurizon Operations Ltd.
C Massy, counsel, with A Rich, solicitor, for the Australian Federated Union of Locomotive Employees.
Hearing details:
2023.
Brisbane:
9, 10 May.
[1] [2023] FWC 555.
[2] Ibid at [13]-[15].
[3] Hatcher J, Asbury VP, Spencer C.
[4] [2023] FWC 555 at [14].
[5] [2011] FWAFB 7214.
[6] [2021] FWCFB 453, 304 IR 356.
[7] Ibid at [41].
[8] [2020] FCAFC 50, 275 FCR 385, 294 IR 458.
[9] AMWU v Berri Pty Limited[2017] FWCFB 3005, 268 IR 285 at [62], [114(3), (11)].
[10] Strzelecki Holdings Pty Ltd v Cable Sands Pty Ltd [2010] WASCA 222, 41 WAR 318 at [47].
[11] AC327905.
[12] [2010] FWA 3560.
[13] Ibid at [116].
[14] Ibid at [120].
[15] AE880759.
[16] [2013] FWC 3134.
[17] Ibid at [55].
[18] AE423824.
[19] AE509534.
[20] TXU Electricity Ltd v Office of the Regulator-General [2001] VSC 153 at [143].
[21] Codelfa Constructions Pty Ltd v State Rail Authority of NSW [1982] HCA 24, 149 CLR 337 at 352 per Mason J; AMWU v Berri Pty Ltd [2017] FWCFB 3005, 268 IR 285 at at [62]-[64], [114(11)-(12)].
[22] TWU v Linfox Australia Pty Ltd [2014] FCA 829 at [34]; CFMEU v BHP Coal Pty Ltd [2016] FCA 1009, 262 IR 176 at [33]; NSW Trains v Australian Rail, Tram and Bus Industry Union [2021] FCA 883 at [49].
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