[2021] FWC 2273

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Australian Federated Union of Locomotive Employees
v
Pacific National Queensland Pty Ltd
(C2020/5742)

COMMISSIONER SPENCER

BRISBANE, 23 APRIL 2021

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – shift change – roster code.

INTRODUCTION

[1] The Australian Federated Union of Locomotive Employees (AFULE/ the Union/ the Applicant) made an application pursuant to s.739 of the Fair Work Act 2009 (the Act) in relation to a dispute arising under the Pacific National (QLD) Intermodal Train Crew Enterprise Agreement 2018 (the Agreement) with Pacific National Queensland Pty Ltd (the Employer/the Respondent).

[2] The matter was listed for conciliation; however, the matter was not able to be resolved and the parties sought the arbitration of the matter. Directions were issued for the filing of material and the matter was listed for Hearing.

[3] In line with the Directions, the following question for Arbitration was set:

“1. By the shift change, did the Respondent act contrary to the Roster Code at Schedule 2 of the Pacific National (Qld) Intermodal Train Crew Enterprise Agreement 2018?

2. Based on the answer to the above, was Pacific National entitled to change Mr Watson’s shift on 12 March 2020 in the manner that it did?”

[4] The dispute between the parties arose regarding clause 7.1 of the Agreement.

[5] The Union was represented by Mr Patrick Turner, Senior Associate of Maurice Blackburn, and instructed by Ms Mel Brewer, Industrial Officer of the AFULE. The Employer was represented by Mr Darren Perry, Partner of Seyfarth Shaw Australia, instructed by Mr James Morley of the Respondent. Both legal representatives were granted permission to appear pursuant to s.596.

[6] The Applicant’s legal representative, Mr Turner, by request at the Hearing, provided an opening statement. All of the evidence was heard on the first day of the Hearing. A further day of Hearing was required to be listed, for the provision of final submissions, (further to the written submissions filed). The transcript was provided to the Parties at an early stage, following the Hearing for reference in preparation of final submissions.

[7] The consideration of this situation has also required taking into account the relevant provisions of the Preamble to the Roster Code, as set out in Schedule 2 in the provisions of 1.1, 1.2, 1.3 and 1.4 of the code sets out that with these understandings, the undermentioned roster principles shall be applied. The understanding that is set out in the above provisions relate to being cognisant in terms of applying the roster principles to a range of things including the needs of fellow employees, the operational environment, personal obligations of employees, being cognisant of their social and domestic needs and responsibilities.

[8] In this matter, a fellow employee of the Applicant had been injured at work and required time off. This was known to the employer and the Applicant and clearly would provide a matter to be accommodated in the roster.

[9] The statement of agreed facts sets out the detail of the shift of Mr Watson being worked on the 17th and 18th of March and that he was notified on 12 March of the necessity to cover a shift of another driver who had taken sick leave. The change in shift would then commence on the Wednesday, 18 March and conclude on the Thursday, 19. The agreed facts set out the implications of the changed shift for Mr Watson. Points 6 to 12 of the agreed facts set out the points arising from the telephone conversation with Mr Watson.

BACKGROUND

[10] This application relates to a change of the rostered shift, of Mr Steven Watson, an employee of the Respondent. Mr Watson, a locomotive driver, disputed the shift change by the Respondent. Mr Watson’s ‘home’ depot is the Moolabin depot (Moolabin), located in Brisbane and he typically drives trains to Maryborough, for the Respondent.

[11] On 5 March 2020, a working roster was posted by the Respondent, which provided that Mr Watson was rostered to work a ‘barracks job’ on Tuesday, 17 March 2020 to Wednesday, 18 March 2020. The rostered works specifically required that:

A. the sign-on time for the first shift of the ‘barracks’ job was Tuesday, 17 March 2020 at 18:45pm to 01:15am on 18 March 2020;

B. which involved him driving a train alone from Moolabin to Maryborough;

C. Mr Watson would then ‘rest’ in ‘barracks’ in the morning of 18 March 2020 for 8 hours and 15 minutes;

D. the sign-on time for the second shift of the ‘barracks’ job was 9:30am to 14:30 pm on 18 March 2020; and,

E. this involved Mr Watson driving himself back to Moolabin by car.

[12] These were Mr Watson’s rostered shifts, pursuant to the posted working roster.

[13] On 12 and 13 March 2020, the Respondent directed Mr Watson to instead work the shift of another train driver, Mr Mal Day, and:

• to work a first shift which had a sign-on time of 1:30 am on 18 March 2020;

• which involved Mr Watson driving a train with another driver from Moolabin to Maryborough with a sign-off time of 8:05am on 18 March 2020;

• which was followed by a stay in ‘barracks’ from 8:05 am until 22:15 pm on 18 March 2020, being 14 hours in Maryborough;

• to work a second shift which had a sign-on time of 22:15pm on 18 March 2020; and,

• this involved Mr Watson driving a train from Maryborough to Moolabin with a sign-off time of 4:40 am on 19 March 2020.

[14] The shift change necessitated the removal of Mr Watson’s subsequent rostered local shift on 19 March 2020.

[15] The shift change, it was submitted by the Union, meant that Mr Watson’s rostered shift sign-on time for:

• his first shift changed from 18:45pm on 17 March 2020 to 01:15am on 18 March 2020, being 6 hours and 45 minutes later than his original rostered sign on time; and

• his second shift was altered from 9:30am on 18 March 2020 to 22:15pm on 18 March 2020, being 12 hours and 45 minutes later than his original rostered sign on time.

[16] It was submitted that the shift change resulted in Mr Watson concluding work on 19 March 2020, 14 hours and 10 minutes later, than his original rostered sign-off time.

RELEVANT LEGISLATION

[17] Pursuant to s.739 of the Act:

“739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

RELEVANT PROVISIONS OF THE AGREEMENT

[18] The dispute centres on the Roster Guidelines under the Agreement (the Roster Code). Specifically, it concerns an interpretation of clauses 3.5 and 7.1 of the Roster Code, which read:

“3.5 Minor changes (e.g. covering a shift/s due to someone being sick or on leave) will be notified in 24 hours. Such absences may require part-time, temporary or casual Employees to cover the required shift/s to satisfy contractual requirements.

…

7.1 Operators can be expected to lift up a maximum of 3 hours and lay back a maximum of 4 hours for rostered shifts. Operators must be contactable within this time range, including their nominated advice period. There will be no more than two (2) alterations to their confirmed sign-on time for their next tum of duty.”

[19] Schedule 2 of the Agreement provides the Roster Code for the Respondent, relevant stating:

“SCHEDULE 2 - ROSTER CODE

1. PREAMBLE

1.1 Pacific National's business is conducted on a 24-hour a day and seven-day a week basis and operates in a competitive transport environment which requires continuous improvement and cost effectiveness to respond to:

• The service level requirements of customers;

• The requirements of the industries that Pacific National supports; and

• Other issues which affect the day-to-day operations of the business such as emergencies, weather conditions and the needs of fellow Employees.

1.2 People who work for Pacific National are required to understand and respond to the demands that this operational environment may place on them.

1.3 On the other hand Pacific National acknowledge that people required to work in this operational environment also have personal obligations and needs that must be accommodated within a Roster system that is:

• Safe

• Fair and equitable; and

• Cognisant of the Employee's social/domestic needs and responsibilities

1.4 With these understandings the under mentioned Roster Principles shall be applied.

2. Key Principles for Rostering

2.1 The two main determinants of the structure of any roster will be the distribution of work overtime and the placement of days off duty.

2.2 Management will determine the allocation of work in a particular roster. This includes overtime which will be allocated in a fair and equitable manner to ensure equalization. Management and employees will work together to implement an overtime allocation system that ensures all employees are treated equally.

2.3 The shift and roster design will be in accordance with the relevant conditions of employment and will be evaluated using fatigue management principles set out in PN's Safety, Health and Environment System.

2.4 Prior to implementation of any roster it is to be approved by the relevant manager, after consultation with the Employees, ensuring that the roster satisfies operational and commercial needs, relevant conditions of employment, duty of care obligations and optimal staff productivity and provides fair and equitable working for the Employees.

2.5 The roster will normally provide confirmation of an Employee's next turn of duty and actual sign-on time. Should this need to change; such advice may be provided upon signing-off duty. The Driver is to check the working roster at the completion of their shift at their home depot.

2.6 Where no advice is provided when signing off duty, including approved leave, then the Employee shall make contact by the AM advice period i.e. between 0930 and 1100 the day prior to recommencing duty. Rosters will provide indicative attendance times only. Start times may be varied in accordance with lift up/lay back provisions detailed below. Shift lengths will vary according to operational needs. Employees will provide details of hours worked which shall be credited against the ordinary hours of work. Train crew will be notified of barracks working at least 12 hours in advance.

2.7 Train crew may be rostered as driver only, driver with qualified assistant, two driver crew configurations, as determined by (SELL} Safe, Efficient, Logical and Legal principles

ROSTER GUIDELINES

3. Rosters

3.1 Pacific National shall develop and modify rosters consistent with operational requirements.

3.2 The master roster shall be exhibited primarily for the purpose of indicating duty free days and indicative times of attendance for the complete roster cycle. In this context the complete cycle means the number of lines in the roster.

3.3 From this a working roster shall be posted at least 10 days in advance providing a weeks work with details of attendance requirements where practicable.

3.4 Where changes to the working rosters impact on the Drivers Rostered Day Off, e.g. working into the rostered day off, this impact will be advised at the posting of the Working Roster. The Parties may, by agreement, provide a lesser period of notice in order to meet operational or contractual obligations.

3.5 Minor changes (e.g. covering a shift/s due to someone being sick or on leave) will be notified in 24 hours. Such absences may require part-time, temporary or casual Employees to cover the required shift/s to satisfy contractual requirements.

4. Next turn of duty

4.1 The commencement time of a shift of ordinary hours and an indicative shift length will be as per the posted working roster. In the absence of any advice to the contrary, this will be regarded as the next turn of duty.

4.1.1 Change to rostered working

4.1.1.1 Where a change to rostered working is required and no advice was received during or at the end of their last shift work, operators required to sign on after midnight and prior to 0600 hours the following day will be advised in the AM advice period.

4.1 .1.2 Operators required to sign on after 0600 on the following day will be advised in the PM advice period.

AM period - between the hours of 0930 and 1100

PM period - between the hours of 1600 and 1730

4.1.2 Cancel rostered shift

4.1.2.1 Where it is necessary to cancel a previously rostered shift - a minimum of 3 hours' notice from the rostered time will be given.

4 .1.3 Mutual exchange of shifts

4.1.3.1 The relevant manager will approve mutual exchange of shifts provided they do not breach any clause of this agreement and are cost neutral to Pacific National.

4.1.4 Rostered Off Duty

4.1 .4.1 All single Rostered Off Duty days shall be either a minimum of 35 hours on duration from sign off of one shift to sign on of the next, or a minimum of 30 hours in duration from midnight on one day to 0600 on the next. Additional days are then in multiples of twenty-four hour periods. Rostered days off are not to be infringed by either lift up or lay back unless the above duration commitments have been provided. The minimum 35 hour duration single Rostered Off Duty day will only be used where the sign off is before 0900.

5. Periods of time between shifts

5.1 Where periods of time between shifts occur and they cannot comply with the definition of Rostered days off or there are periods of time in excess of the minimum requirements for Rostered days off then this period of time will be termed a Blank Period.

5.2 Blank Periods may be utilised in the following ways:

5.2.1 To assist in the changing of one shift pattern to another

5.2.2 To provide for work that needs to be undertaken extra to that already predicted in the Master and Working Roster

5.2.3 To assist in the recovery of Sick Leave taken

5.3 Employees required to work during blank periods will be provided with notice in accordance with the NEXT Turn of Duty Clause

6. Mandatory Rest days

6.1 Mandatory Rest days will be provided at intervals no greater than twelve days apart to avoid the working of more than eleven consecutive days. Mandatory rest days shall confirm to the same conditions as single rostered days off as per clause 4.

7. Lift Up and Lay Back

7.1 Operators can be expected to lift up a maximum of 3 hours and lay back a maximum of 4 hours for rostered shifts. Operators must be contactable within this time range, including their nominated advic-e period. There will be no more than two (2) alterations to their confirmed sign-on time for their next tum of duty…”

STATEMENT OF AGREED FACTS

[20] The parties prepared a Statement of Agreed Facts in relation to the application but qualified such in that they were not the only facts material to the dispute. The Statement of Agreed Facts provided:

1. On 5 March 2020, the Respondent posted a Working Roster for the week commencing 15 March 2020 at its Moolabin depot in Tennyson, Queensland.

2. The Working Roster provided that Steven Watson, Locomotive Driver, was rostered to sign on for a shift on Tuesday, 17 March 2020 at 1845 and sign off on Wednesday, 18 March at 1430.

3. On Thursday, 12 March 2020, Mr Watson was verbally notified by Adam Hunt, Operations Supervisor in a telephone conversation of a change to his shift to cover the shift of another Locomotive Driver who had taken sick leave.

4. The changed shift commenced on Wednesday, 18 March at 0130 and concluded on Thursday, 19 March at 0440.

5. The shift change meant that Mr Watson’s shift:

• Commenced 6 hours and 45 minutes later than his rostered sign on time; and,

• Concluded 14 hours and 10 minutes later than his rostered sign off time.

6. During that telephone conversation, Mr Watson:

7. Requested to drive to location.

8. Confirmed with Mr Hunt that his original job was still running and it had not been cancelled.

9. On Thursday, 12 March 2020 at 12:57pm, in a text message sent by Mr Hunt to Mr Watson, Mr Hunt stated that “Both clauses 3.5 and 4.1 apply to the change.”

10. On Friday 13 March 2020, Mr Watson and Mr Hunt participated in a Stage 1 dispute meeting.

11. In the meeting Mr Watson disputed that the company could change his shift in the manner proposed.

12. Mr Watson worked the changed shift on 18 March 2020.

SUMMARY OF THE APPLICANT’S SUBMISSIONS AND EVIDENCE

[21] The Applicant submitted, as set out that their member, Mr Steven Watson, is a locomotive driver employed by the Respondent¹ and his ‘home’ depot is the Moolabin depot (Moolabin), located in Brisbane. Mr Watson typically drives trains to Maryborough for the Respondent.²

[22] Mr Watson’s evidence was that he was rostered (repeated for convenience) to work a ‘barracks job’ on Tuesday, 17 March 2020 to Wednesday, 18 March 2020 and specifically that:

• the sign-on time for the first shift of the ‘barracks’ job was Tuesday, 17 March 2020 at 18:45pm to 01:15am on 18 March 2020;

• which involved him driving a train alone from Moolabin to Maryborough;

• Mr Watson would then ‘rest’ in ‘barracks’ in the morning of 18 March 2020 for 8 hours and 15 minutes;

• the sign-on time for the second shift of the ‘barracks’ job was 9:30am to 14:30 pm on 18 March 2020; and,

• this involved Mr Watson driving himself back to Moolabin by car.³

[23] The Applicant submitted that these were Mr Watson’s rostered shifts pursuant to the posted working roster.

[24] Mr Watson said that on 12 and 13 March 2020, the Respondent directed him to instead work the shift of another train driver, Mal Day, and:

(a) to work a first shift which had a sign-on time of 1:30 am on 18 March 2020;

(b) which involved Mr Watson driving a train with another driver from Moolabin to Maryborough with a sign-off time of 8:05am on 18 March 2020;

(c) which was followed by a stay in ‘barracks’ from 8:05 am until 22:15 pm on 18 March 2020, being 14 hours in Maryborough;

(d) to work a second shift which had a sign-on time of 22:15pm on 18 March 2020; and,

(e) this involved Mr Watson driving a train from Maryborough to Moolabin with a sign-off time of 4:40 am on 19 March 2020.⁴

[25] It was argued that the shift change necessitated the removal of Mr Watson’s subsequent rostered local shift on 19 March 2020.⁵ The shift change meant that Mr Watson’s rostered shift sign-on time for his first shift changed from 18:45pm on 17 March 2020 to 01:15am on 18 March 2020, being 6 hours and 45 minutes later than his original rostered sign on time; and his second shift was altered from 9:30am on 18 March 2020 to 22:15pm on 18 March 2020, being 12 hours and 45 minutes later than his original rostered sign on time. The shift change resulted in Mr Watson concluding work on 19 March 2020, 14 hours and 10 minutes later than his original rostered sign-off time.

[26] The Applicant submitted that on a proper construction of the Agreement, the Respondent was not entitled to change the Applicant’s shift in the manner which occurred:

(a) by virtue of Clause 7.1 of the Roster Code, which places express limits on the extent to which the Respondent may bring forward, or delay, a rostered shift in the working roster; and, or in the alternative,

(b) Clause 3.5 of the Roster Code, in that:

i. Clause 3.5 of the Roster Code does not permit the Respondent to change a worker’s shift greater than those periods of time stipulated by clause 7.1; and,

ii. Irrespective of whether or not a ‘minor change’ can exceed the limits set by clause 7.1 the shift change was otherwise not a ‘minor change’ so as to fall within the exception in that clause.

[27] The Applicant submitted that the shift change was either contrary to clause 7.1 and/or in the alternative, not permitted by clause 3.5 so, in either circumstance, as to be contrary to the Roster Code, as part of the Agreement.

Applicant’s construction of the relevant clauses of the Agreement

[28] The Applicant submitted that clauses 7.1 and 3.5 appear under Schedule 2 of the Agreement, which is titled “Schedule 2 – Roster Code.” The Applicant submitted there is no dispute in the proceedings that the parties intended to be bound by the provisions of the Roster Code.

[29] The Applicant said the broader context in which the Respondent’s roster scheme exists, includes the statutory framework applicable to the rail transport industry. The Applicant stated this imposes a duty on rail transport operators; including the Respondent, to ensure so far as is reasonably practicable that rail safety workers, who perform rail safety work in relation to the operator's railway operations do not carry out rail safety work while impaired by fatigue or if they may become so impaired.⁶

[30] The Applicant submitted that the Roster Code itself creates a prescriptive scheme for the rostering of workers, which is intended to balance:

• Pacific National’s 24 hour a day and seven-day a week business in which employees are required to understand and respond to the demands of such an operational environment (clause 1.1 and 1.2); and,

• The personal obligations and needs of employees which should be accommodated in a roster system that is safe, fair and equitable and cognisant of the Employee’s social/domestic needs and responsibilities (clause 1.3).

[31] These clauses in Schedule 2 – Roster Code of the Agreement state:

‘1.1 Pacific National's business is conducted on a 24-hour a day and seven-day a week basis and operates in a competitive transport environment which requires continuous improvement and cost effectiveness to respond to:

• The service level requirements of customers;

• The requirements of the industries that Pacific National supports; and

• Other issues which affect the day-to-day operations of the business such as emergencies, weather conditions and the needs of fellow Employees.

1.2 People who work for Pacific National are required to understand and respond to the demands that this operational environment may place on them.

• Safe

• Fair and equitable; and

• Cognisant of the Employee's social/domestic needs and responsibilities

1.4 With these understandings the under mentioned Roster Principles shall be applied’

[32] The Applicant submitted that the parties expressly intended that these ‘understandings’ underpin the application of the principles of the Roster Code (Clause 1.4). Further it was stated that as a matter of relevant context, enterprise agreements are intended to impose binding obligations on the parties.⁷

Clause 7.1

[33] The terms of clause 7.1 provide:

“Operators can be expected to lift up a maximum of 3 hours and lay back a maximum of 4 hours for rostered shifts. Operators must be contactable within this time range, including their nominated advice period. There will be no more than two (2) alterations to their confirmed sign-on time for their next turn of duty.”

[34] The Applicant submitted that the first sentence has a clear meaning: that operators (being train drivers) can have the start time of their rostered shifts brought forward a maximum of three hours or pushed back a maximum of 4 hours. The Applicant argued that the reference to ‘rostered shifts’ clarifies that, the clause is intended to apply once the ‘working roster’ is published rather than refer to the ‘master roster’. Accordingly, it was argued that its application is limited to that circumstance where a shift has been rostered and not the circumstance, where no shift is rostered.

[35] The Applicant submitted that the clause, further places an obligation on employees to remain contactable within this time range (being the three hours prior) including during their nominated advice period. The Applicant said the nominated advice period, is not a term defined in the Agreement but is rather the period of time nominated by employees to the Respondent, being the time it would take them to travel into work. An example was given of an employee who may need to be contactable up to 3 and half hours prior to the start of their rostered shift, where their nominated advice period was three and a half hours.

[36] The Applicant submitted that the clause finally provides that there cannot be more than two changes to an employees’ confirmed start time for their next turn of duty. By virtue of clause 4.1, the commencement time of a shift of ordinary hours and an indicative shift length is as per the posted working roster and, unless employees are advised to the contrary, this is an employee’s next turn of duty. The Applicant said that an employee’s next turn of duty, in effect, is the next shift they are required to work, as opposed to an RDO.

[37] Clause 4.1 sets out:

‘4. Next turn of duty

4.1.1 Change to rostered working

4.1 .1 .2 Operators required to sign on after 0600 on the following day will be advised in the PM advice period.

AM period -between the hours of 0930 and 1100

PM period- between the hours of 1600 and 1730

4.1.2 Cancel rostered shift

4.1.2.1 Where it is necessary to cancel a previously rostered shift- a minimum of 3 hours' notice from the rostered time will be given.

4.1.3 Mutual exchange of shifts

4.1.3.1 The relevant manager will approve mutual exchange of shifts provided they do not breach any clause of this agreement and are cost neutral to Pacific National.

4.1.4 Rostered Off Duty

4.1.4.1 All single Rostered Off Duty days shall be either a minimum of 35 hours on duration from sign off of one shift to sign on of the next, or a minimum of 30 hours in duration from midnight on one day to 0600 on the next. Additional days are then in multiples of twenty-four hour periods. Rostered days off are not to be infringed by either lift up or lay back unless the above duration commitments have been provided. The minimum 35 hour duration single Rostered Off Duty day will only be used where the sign off is before 0900.’

[38] The Applicant submitted that clause 7.1 places an express limitation on the number of changes that can be made to the start time of an employee’s next turn of duty, to a maximum of two changes, and otherwise imposes no other limitations on the number of times a shift may be lifted up or laid back in the course of the working roster, but it does limit the maximum period of time, the shift can be brought forward or pushed back.

[39] Other than its application to “rostered shifts”, the Applicant submitted that clause 7.1 otherwise contains no express limitation on its operation (i.e. it is not expressly limited to the day of a shift or the next turn of duty), and accordingly is of general application to rostered shifts in the working roster, save where express provision is made elsewhere in the Roster Code and the Agreement. The Applicant argued that if Clause 7.1 was intended to be limited only to the day of the shift, express words to that effect could have been used. The Applicant submitted that the interpretation advanced by the Respondent, requires the addition of words to that effect into that term and is therefore unsound.

[40] The Applicant argued that the clause refers to operators being contactable within the timeframe of the lift up and lay back maximum periods and the nominated advice period and as such plainly deals with a contingency plan where a change is notified in that time period. The Applicant submitted that it should not be construed as limiting the operation of the clause to the day in issue.

[41] The Applicant submitted that the limitation on alterations to a worker’s sign-on time for their next turn of duty, is a clause which otherwise grants the Respondent considerable flexibility once a working roster is posted, being the capacity to bring a rostered shift forward or to push it back within certain maximum timeframes, right up to the date of the shift. The Applicant noted the roster can only then be changed up to twice between one turn of duty and the next.

[42] The Applicant rejected the Respondent’s submission that the effect of clause 2.5 is that the working roster may be changed and where this occurs, the employee may be advised of this change. The Applicant noted that this clause makes no mention of changes being limited by the lift up/lay back provisions, but submitted that the plain words of clause 2.5, do not of themselves confer on the Respondent an express power, right or discretion to change the roster, (and subject to no maximum limits) but rather, are concerned with clarifying that in the event of a change occurring, advice of this change may occur upon signing-off duty. The meaning advanced by the Respondent requires ‘reading into’ the clause a meaning not available on its express terms. If the Commission were to take the view that clause 2.5 does confer such a right, a general provision should, in any event, give way to the specific provision at clause 7.1.

[43] The Applicant argued in respect to the word ‘may’ as part of clause 2.6, that the ordinary meaning of that word as it is used in the clause is “to have permission to.” The Applicant submitted that in the context of the clause, and the Agreement as a whole, the start times can be varied by the Respondent in accordance with the lift up/lay back provisions, but not changed through some other unspecified means, of which the clause is silent. The Applicant submitted that the interpretation renders the words of the clause unnecessary. The Applicant further submitted that clause 2.6 contains a series of propositions which taken together support the Applicant’s construction in that it variously provides that:

• There is an obligation on drivers to make contact during the AM advice period before recommencing duty where no advice of any change has been provided when signing off duty;

• Rosters will provide indicative attendance times only;

• Start times may be varied in accordance with lift up/lay back provisions detailed below;

• Shift lengths will vary according to operational needs;

• Employees will provide details of hours worked which shall be credited against the ordinary hours of work; and,

• Train crew will be notified of barracks working at least 12 hours in advance.

[44] The Applicant submitted that the words of clause 2.6 contemplated that while rosters will provide indicative attendance times, if a change needs to be made to these, this will be in accordance with the lift up, lay back provisions.

[45] The Applicant argued that a submission that clauses 2.5 and 4.1.1 do not specify that a change to working rosters or rostered work must be subject to, or limited by, the lift up and lay back provisions, and therefore a change should not be subject to those provisions⁸, does not take the argument further. The Applicant submitted that clause 7.1 is a clear, unequivocal and express provision, that allows that Operators can be expected to be lifted up to a maximum of 3 hours and for a lay back to a maximum of 4 hours for rostered shifts. The Applicant submitted that the framers of the Agreement, in each provision referring to a change, should not be expected to have specified the precise limitation on this occurring, in circumstances where clear provision for this was made elsewhere in the Agreement, in a discrete stand-alone clause.

[46] The Applicant submitted that clause 7.1 has broader application than simply the day of the shift in question, which is apparent from the scheme of the Agreement as a whole, which makes express provision for the limited circumstances in which shifts cannot be altered by the lift up, lay back provisions, namely:

• rostered days off are “not to be infringed by either lift up or lay back” save unless minimum RDO duration periods have been provided– clause 4.1.4.1;

• lift up provisions shall not infringe the final day of Annual Leave – clause 14.1.2;

• lift up and layback provisions cannot be applied to AFD periods (where there is a cancellation of rostered workings) – clause 24.2.7 and Schedule 3.

[47] The Applicant submitted the Roster Code further contemplates emergency circumstances where departures from the Roster Code may be required (such as clauses 8.4, 8.5, and 9.1), and so it is not the case that clause 7.1 would inhibit responding to an emergency.

[48] The Applicant rejected the Respondent’s submission that the meaning advanced by the Union is absurd and could not have been intended, as it renders “other roster flexibility clauses in Schedule 2 redundant”.⁹The Applicant submitted that the roster code is intended to balance the considerations of the Respondent’s 24/7 operations with a roster system that is safe, fair and equitable and cognisant of the employee’s social and domestic needs and responsibilities. The Applicant argued that the interpretation advanced by the Applicant is not absurd in that it still grants considerable flexibility to the Respondent.

[49] The Applicant submitted that the Respondent’s interpretation would provide it with unilateral discretion to completely change the working roster, save for limitations on the day of a rostered shift and for RDOs, which is inconsistent with the notion of a Roster Code, that by its nature is intended to closely prescribe how rostering can occur and change. The Applicant argued it is also inconsistent with the existence of clause 3.5, which would be rendered ineffective if the Respondent had complete discretion to change shifts (in a major or minor way) prior to the day of the rostered shift.

[50] The Applicant argued that if the Respondent, had such unrestrained discretion in shift changes, this was also inconsistent with the consultative process of arriving at a roster. That is clauses 2.1 to 2.4 of the Roster Code, that involve the fair and equitable allocation of overtime that treats employees equally and is evaluated using fatigue management principles and which prior to implementation requires consultation with employees “ensuring that the roster satisfies operational and commercial needs, relevant conditions of employment, duty of care obligations and optimal staff productivity and provides fair and equitable working for the Employees.”

[51] The Applicant submitted that its interpretation does not render the “other roster flexibility clauses” (being clauses 2.5, 2.6 and 4.1) redundant, as the Respondent has misconstrued the effect of those. The Applicant argued these clauses do not confer roster flexibilities, but rather:

• State when advice can be provided of a change to an employee’s next turn of duty and actual sign-on time, being upon signing-off duty and imposing an obligation on drivers to check the working roster (clause 2.5);

• Provide for those propositions set out at paragraph 44 above, but do not, of themselves, confer any right to change rosters other than in accordance with the lift up, lay back provisions (clause 2.6); and,

• Provides:

(a) what is regarded as the ‘next turn of duty’ (clause 4.1);

(b) when a change to rostered working is required to be notified in the circumstance where no advice was received during or at the end of an operator’s last shift work, (4.1.1)

(d) for mutual exchanges of shifts (clause 4.1.3); and,

(e) provides for minimum durations of RDOs and that these are not to be infringed by lift up or lay back (clause 4.1.4.1).

[52] The Applicant submitted that its interpretation, does not disturb the operation of any of the clauses, and accordingly, clause 7.1 has broader application, then simply the day of the shift but rather applies to changes to rostered shifts in the working roster, save where the Agreement provides this is not the case, such as where there are cancellations. The Applicant argued that on its construction of clause 7.1, the effect of the shift change was to lay back the Applicant’s shift greater than the maximum of 4 hours permitted by Clause 7.1 and thereby, this contravened clause 7.1 of the Roster Code.

Clause 3.5

[53] The Applicant submitted that clause 3.5 of the Roster Code provides that minor changes (e.g. covering a shift/s due to someone being on leave) will be notified in 24 hours. Such absences may require part-time, temporary or casual Employees to cover the required shift/s to satisfy contractual requirements.

[54] The Applicant argued that the nature of the changes covered by the clause are not defined by the Agreement, but an example is provided of such a change including ‘covering a shift/s due to someone being sick or on leave’. The Applicant submitted this is provided as an example of the type of change contemplated, but is not the only type of change contemplated by the Clause.

[55] The Applicant submitted that the clause is concerned with changes to the working roster and is consistent with it following clauses 3.3 and 3.4 of the Roster Code, which provide, respectively:

“3.3 From this a working roster shall be posted at least 10 days in advance providing a weeks work with details of attendance requirements where practicable.

[56] The Applicant argued the clause expressly is limited to ‘minor’ changes, being one that is “lesser, as in size, extent, or importance, or being the lesser of two”;¹⁰ the clause imposes an obligation to notify an employee within 24 hours of the minor change (“will be notified)”; and it contemplates that employees other than permanent, full-time employees may need to be rostered to work the shift in order to satisfy contractual requirements.

[57] The Applicant submitted that clause 3.5 does not provide that the lift up, lay back provisions do not apply or infringe on a minor change, unlike other parts of the Agreement, for example, clauses 4.1.4.1 and 14.1.2 of the Roster Code, Schedule 3 and clause 24.2.7 of the Agreement. Accordingly, the Applicant submitted that interpreting the clause in a manner consistent with those other clauses of the Agreement, and clause 7.1, permits the Respondent to make a minor change to a roster which would, for example, have an employee cover the shift of another in the event of someone being on leave, but that change would still be the subject of the limitations in clause 7.1. The Applicant argued that if this was not the case, the Agreement would express that clause 7.1 does not apply to a ‘minor change’ or does not provide for a ‘minor change’.

[58] The Applicant argued that while clause 3.5 contemplates an employee covering another’s shift if they are unwell, it is the Applicant’s position that the shift change the subject of the dispute was not a ‘minor’ change within the meaning of the clause, in that the shift change resulted in the Applicant’s rostered shift being ‘laid back’ greater than the maximum of 4 hours under clause 7.1 and was therefore, not a minor change.

[59] The Applicant submitted that, whether or not the Commission concludes that clause 3.5 is subject to 7.1, on the facts the shift change was not a change of lesser size, extent or importance so as to fall within the bounds of this clause, in that:

(a) the shift change resulted in Mr Watson starting his first shift 6 hours and 45 minutes later and his second shift 12 hours and 45 later than his original rostered sign on time;¹¹

(b) resulted in him concluding his second shift, 14 hours and 10 minutes later than his originally scheduled sign-off time;¹²

(c) resulted in the shifts taking place on different dates from 18 March to 19 March, rather than 17 March to 18 March;¹³

(d) the new shifts were of greater duration, being 5 minutes longer on the first shift and 1 hour and 25 minutes greater for the second shift and involving a stay in barracks in Maryborough away from his family of 14 hours, as compared to the original 8 hours and 15 minutes;¹⁴

(e) involved Mr Watson driving two trains, rather than his original rostered shifts which only involved driving one train and then being driven back to his home depot, being a material difference in the type of work to be performed;¹⁵

(f) involved an elaborate swap, whereby another driver, whose train had been cancelled, was allocated to Mr Watson’s shifts which continued to run as normal, and where Mr Watson was then directed to work Mr Day’s shift;¹⁶

(g) increased the fatigue score for Mr Watson’s first shift from 44 to 56.052 and of his second shift from 41 to 64.779, closer to the maximum fatigue scores permissible (which is 80);¹⁷

(h) resulted in the removal of Mr Watson’s rostered local shift on 19 March 2020, due to the rest requirements between shifts;¹⁸

(i) entailed that Mr Watson needed to rest in the day of 19 March 2020;¹⁹

(j) had an adverse impact on Mr Watson’s family life including, precluding him from attending to his original plans to pick up his children from school and day care on 18 March 2020, incurring the cost of after school care on 18 March 2020 and then, was unable to take his eldest daughter to school on 19 March 2020;²⁰

(k) was one where no agreement or consent was sought or received;²¹ and,

(l) involved no additional compensation being paid to Mr Watson in mitigation for the change.²²

Surrounding circumstances

[60] The Applicant submitted that no recourse need be had to the Respondent’s assertions in respect of the negotiations leading to the Agreement, as the common intention of the parties is to be derived objectively, from what a reasonable person would understand by the language used, without regard to the subjective intentions or expectations of the parties. The Applicant submitted that while regard may be had to evidence of surrounding circumstances, to assist in determining whether ambiguity exists, where there is a plain meaning, that evidence should not be admitted to contradict the plain language of the agreement.²³ The Applicant submitted that the meaning of the clauses at issue, is plain.

[61] The Applicant argued that, should the surrounding circumstances be considered, they do not suggest that there was any assent or common understanding, on the part of the Applicant to the position advanced by the Respondent in these proceedings.²⁴ The Applicant argued this is also the case in respect of the Respondent’s contentions that it has previously conducted itself in this manner²⁵, a matter which the Applicant disputed,²⁶ and stated, on the facts, there has been no meeting of the minds.²⁷

[62] The Applicant rejected the Respondent’s assertion that Pacific National “would not have agreed to the change in the lift up provision sought by the Union during bargaining if all other roster flexibility provisions in Schedule 2 were going to be made redundant,” and argued that this is irrelevant as to how the Agreement is to be constructed, particularly as the task of interpreting the Agreement does not involve rewriting the Agreement.²⁸

[63] Finally, the Applicant submitted that its interpretation of these provisions is consistent with industry practice and so, plainly does not give rise to an ‘absurd’ outcome.²⁹ The Applicant submitted that by virtue of these matters, the shift change was not one permissible pursuant to clause 3.5 of the Agreement, was otherwise contrary to clause 7.1 and therefore was contrary to the Roster Code.

Answers to questions for arbitration

[64] The Applicant submitted that the answer to the first question should be in the affirmative and, by virtue of the answer to the first question being ‘yes’, the Commission should answer the second question ‘no’.

Supporting witness statement of Mr Mick McKitrick

[65] Mr McKitrick filed a witness statement in support of the Applicant’s submissions. 30

[66] Mr McKitrick’s evidence was that he was the sole bargaining representative for the AFULE and its members in negotiations for the Agreement. He stated there was one other union which was party to the Agreement, being the RTBU.

Clause 7.1

[67] His evidence was that in the course of negotiations, the Roster Code was not the subject of significant discussion, except for the reduction of the period of time by which the Respondent could ‘lift-up’ a shift pursuant to clause 7.1 of the Agreement, and regarding the equalisation of overtime.

[68] As to clause 7.1, Mr McKitrick stated the previous version of the Agreement provided the Respondent could lift up a shift by 4 hours. He stated otherwise, the wording of the clause was identical to that which appeared in the Agreement.

[69] He stated both union parties made a claim to reduce the period of time that the Respondence could lift up a shift, from 4 hours to 2 hours. Ultimately, an agreement was reached at ‘3 hours’.

[70] As to discussions around clause 7.1, Mr McKitrick stated he advanced on behalf of the AFULE that their position was that ‘trains run late, and typically do not run early’. He recalled the Respondent’s representative agreeing that trains rarely ran early, but did not agree to lift up hours being reduced to 2 hours as sought by the unions.

[71] He stated:

“There was no discussion in the course of the negotiations that suggested or indicated that it was any of the parties’ understanding, or intention, that clause 7.1 would only apply on the day of operations”. 31

[72] He submitted that for the Unions part, it approached the negotiations on the premise that the ‘lift-up, lay back’ provisions were to be applied in a manner consistent with other rail freight industry businesses, and that the purpose of the clause was; once a working roster was published or posted, it would afford a company the flexibility they needed, to roster employees at different times, within the maximum limits, to meet their rostered service for late running services or, for example, at origin depots, whereby trains may depart early to avoid a planned track closure.

Lift up and lay back in the rail freight industry

[73] Mr McKitrick’s evidence was that the lift up, lay back provisions, are common in the rail freight industry.

[74] He noted businesses in the rail freight industry, such as the Respondent’s, typically operate 24 hours a day, seven days a week. He stated while the timing of the publication of a working roster changes from employer to employer and across Enterprise Agreements, the purpose of lift up, lay back provisions is to restrict changes that can be made once a working roster is posted or published. His evidence was that because these businesses operate around the clock and work is scheduled around orders received from customers, traincrew often work odd hours and shifts, and there is no set start time for a shift well in advance of when it might be worked, as occurs in other industries like mining.

[75] Mr McKitrick stated accordingly, businesses like the Respondent’s are given considerable flexibility to roster drivers around the orders from their customers. The lift up, lay back provsions afford business like the Respondent’s the ability to further change rostered shifts once a working roster has been posted, but within certain maximum limits. He noted these provisions allow rail freight industry businesses to line up drivers shifts with services that are running early or late, while still giving some certainty to drivers about the hours they may need to work, so they can plan their lives.

Traincrew at the Respondent

[76] Mr McKitrick’s evidence was that for traincrew of the Respondent, the rostering arrangements are that while the Master Roster is issued well in advance of rostered shifts and contains set RDOs that cannot be moved, it only has indicative start times. His evidence was that these start times can and often are changed in the ‘working roster’.

[77] He stated traincrew at the Respondent work predominantly what are sometimes referred to as “layover” or “barracks” jobs; jobs where a worker drives a train from the home depot at which they are based to another location. They will rest at that location for a minimum of 8 hours and then return to their home depot. He stated there is no certainty what days or times a member will be working a barracks job, or any shifts, until the working roster is published.

[78] Mr McKitrick’s evidence was the working roster is only published by the Respondent 10 days prior to the rostered workings. Therefore, traincrew have limited advance notice to plan their family and home time around their work. His evidence was that the Union’s position is that lift up, lay back provisions provide some further certainty to workers about the maximum extent to which their rostered working can be further changed once a working roster is posted, in addition to providing flexibility to the Respondent to run their business. He noted ensuring proper work-life balance for members, is a key priority of the Union.

Previous disputes

[79] Mr McKitrick gave evidence that there have been two previous instances during the life of the Agreement where the Respondent sought to make a roster change in respect of a member of the Union, lifting up their shifts greater than the maximum, under clause 7.1 without the employee’s agreement or consent. He gave evidence as to the members names, and noted on both occasions the Union notified disputes to the Commission.

SUMMARY OF THE RESPONDENT’S SUBMISSIONS AND EVIDENCE

[80] The Respondent submitted that the answer to the first question for arbitration is “no” and the answer to the second question is “yes”.

The factual matrix

[81] By way of background the Respondent stated that they operate an intermodal transport business in Queensland, that is separate and distinct from its national operations. 32 The Queensland intermodal business employs 12 drivers at Tennyson and operates approximately 42 trips per week between Moolabin and Maryborough.33

[82] On 12 March 2020, the Respondent changed Mr Watson’s working roster to cover the shift of another employee who had been injured and was on personal/carer’s leave. 34 Mr Watson’s original roster indicated that he would commence his shift at 18:45 on 17 March 2020 driving 8CP1C from Moolabin to Maryborough, spend time in barracks and return by car to Moolabin at 9:30 on 18 March 2020.35

[83] The change to Mr Watson’s shift meant that he would commence his new shift at 01:30 on 18 March 2020 driving 82P5D. He would then spend time in barracks and drive back 87P2A, returning to Moolabin by 04:40. 36 He was subsequently offered the option of taking a car up to Maryborough instead of driving 82P5D, which would have allowed him to commence his shift later.37 He refused this request.38

[84] Mr Watson disputed this shift change, variously stating that the shift change was not a “minor change” and that there was no cancellation of his original rostered shift. 39 Accordingly he notified a Step 1 dispute process under clause 45.1 of the Agreement.40

[85] A meeting took place on 13 March 2020 between Adam Hunt (Superintendent), Errol Vaughan (Supervisor), Wayne Coombs (Mr Watson’s support person from the Union) and Mr Watson as part of the Step 1 dispute process. 41 The dispute was not resolved in this meeting and Mr Watson advised his intention to proceed to Step 2. 42

[86] The Union notified Pacific National of Step 2 of the dispute process by way of a letter dated 17 March 2020, addressed to Mr Nathan Heatley (Pacific National Superintendent Freight) from Mr Mick McKitrick (State Secretary of the Union). The Union alleged that the Pacific National had changed Mr Watson’s shift contrary to the Roster Code and whilst doing so ignored his prior family commitments. 43 Mr Watson did not however indicate to his supervisors at any stage that he had prior family commitments, despite being expressly asked on a number of occasions, and the Step 2 dispute process notification letter was the first time that Pacific National was made aware of these alleged prior commitments.44

Interpretation of the roster code

[87] The Respondent submitted that the function of the Commission, in relation to s.739 applications, is to answer the question in dispute between the parties. In so doing, it cannot give an answer inconsistent with the Agreement or section 739(5) of the Act.

[88] The Respondent submitted that the crux of what the Union was seeking, was a determination of the Commission that clause 7.1 of Schedule 2 of the Agreement (Roster Code) operates as a limitation on all the roster flexibility provisions in the Roster Code, such that a shift change which results in the start time of the original shift being greater than 3 hours or the end time of a shift being greater than 4 hours is inconsistent with the Roster Code. The Respondent argued that this construction was absurd and ignores many provisions of the Roster Code which are applicable in the circumstances.

[89] The Respondent stated that the key provisions of the Roster Code were as follows:

(a) Clause 3.2 provides that the Respondent develops a Master Roster which sets out rostered days off and indicative times of attendance for the roster cycle.

(b) Clause 3.3 provides that from the Master Roster, a Working Roster is posted at least 10 days in advance providing a weeks’ work with details of attendance requirements where practicable.

(a) 2.5 The roster will normally provide confirmation of an Employee’s next turn of duty and actual sign-on time. Should this need to change; such advice may be provided upon signing-off duty. The Driver is to check the working roster at the completion of their shift at their home depot.

Section 1.02 2.6 Where no advice is provided when signing off duty, including approved leave, then the Employee shall make contact by the AM advice period i.e. between 0930 and 1100 the day prior to recommencing duty. Rosters will provide indicative attendance times only. Start times may be varied in accordance with the lift up/lay back provisions detailed below. Shift lengths will vary according to operational needs. Employees will provide details of hours worked which shall be credited against the ordinary hours of work. Train crew will be notified of barracks working at least 12 hours in advance.

(d) Clause 3.5 states that “Minor changes (e.g. covering a shift/s due to someone being sick or on leave) will be notified in 24 hours. Such absences may require part-time, temporary or casual Employees to cover the required shift/s to satisfy contractual requirements”.

(e) Clause 4.1.1 sets out that a change to rostered working may be made in the following way:

(a) 4.1.1 Change to rostered working

(b) 4.1.1.1 Where a change to rostered working is required and no advice was received during or at the end their last shift work, operators required to sign on after midnight and prior to 0600 hours the following day will be advised in the AM advice period.

(c) 4.1.1.2 Operators required to sign on after 0600 on the following day will be advised in the PM advice period.

(d) AM period - between the hours of 0930 and 1100

(e) PM period - between the hours of 1600 and 1730

(f) Clause 4.2.1 sets out the notice period for cancelling a shift:

(f) 4.1.2.1 Where it is necessary to cancel a previously rostered shift - minimum of 3 hours’ notice from the rostered time will be given.

(g) Cancellations of rostered working are also provided for in clause 24 of the Agreement.

(g) Clause 7.1 sets that a shift can be lifted up or laid back as follows:

Article II. 7.1 Operators can be expected to lift up a maximum of 3 hours and lay back a maximum of 4 hours for rostered shifts. Operators must be contactable within this time range, including their nominated advice period. There will be no more than two (2) alterations to their confirmed sign-on time for their next turn of duty.

[90] The Respondent referred to the Full Federal Court decision of WorkPac Pty Ltd v Skene, 45in relation to the way that provisions of enterprise agreements such as the Agreement are interpreted, where the Full Court stated:

“The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 378 (French J). The interpretation “... turns on the language of the particular agreement, understood in the light of its industrial context and purpose ...”: Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378–9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited [1996] IRCA 166; (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).” 46

[91] The Respondent noted that in relation to the “industrial context”, it was important to note that:

(h) Pacific National’s intermodal service in Queensland is a boutique service which runs continuous operations in a highly competitive transport environment; 47

(i) operational needs can and do change at short notice, including in response to network delays, cancellations, changes in customer demand, unplanned staff absences and weather conditions; 48 and

(j) there are only 12 drivers at the Tennyson Depot, which makes labour flexibility imperative to meeting contractual requirements. 49

[92] The Respondent submitted that the Roster Code allows the working roster to be changed in four ways that are not mutually exclusive. First, the working roster can be changed in accordance with clause 3.5 of the Roster Code. The term “minor” is not defined however the clause expressly contemplates that a minor change can include changing the roster to cover a shift due to sick leave. On the Union’s construction, a “minor change” is one which is made in accordance with clause 7.1. The Respondent argued that there is, firstly, no basis in the text of the Agreement which supports such a construction. Secondly, that the practical effect of such a construction is that, if a driver was unable to perform a shift, due to injury or illness, the Respondent would only be able to cover the shift if it meant the relieving driver’s original shift was not brought forward by more than 3 hours or extended by more than 4 hours. In circumstances where there are only 12 drivers at the Tennyson Depot, this would result in an industrially unsound outcome inconsistent with the Preamble to the Roster Code.

[93] Second, a driver’s next turn of duty can be changed by giving advice upon signing off duty as outlined in clause 2.5.

[94] Third, a driver’s next turn of duty can be changed in accordance with clause 4.1.1. This clause clearly sets out that, where a driver has not received advice of a change to their next turn of duty upon signing off, they can still receive advice of a change in the following ways:

(i) If they are required to sign on after midnight and prior to 06:00, they will receive advice of a change to their next turn of duty between 09:30 and 11:00 on the preceding day.

(ii) If they are required to sign on after 06:00, they will receive advice of a change to their next turn of duty between 16:00 and 17:30 on the preceding day.

[95] Fourth, a driver can have the start or finish time of their next turn of duty lifted up by a maximum of 3 hours or laid back by a maximum of 4 hours (clause 7.1). Clause 7.1 goes on to say that “operators must be contactable within this time range, including their nominated advice period”. What clause 7.1 must be understood as meaning is that drivers may be required to commence their next turn of duty 3 hours early or have it extended by 4 hours, and must be contactable in this period for the purpose of notifying them to come into work earlier than their working roster requires them to.

[96] Additionally, clause 7.1 states that “there will be no more than two (2) alterations to their confirmed sign on time for their next turn of duty”. Alterations made under clause 7.1 are therefore concerned with changing the start time (or finish time) of the next turn of duty after it has been confirmed.

[97] Importantly, there is no express wording in the Roster Code which states that changes to the working roster or to a next turn of duty under clauses 3.5, 2.5 and 4.1 must be made subject to clause 7.1. Read as a whole, clause 7.1 is a standalone roster flexibility provision which can be used as one of the four ways in which the Respondent can amend a shift posted to the working roster under the Roster Code.

[98] The Respondent submitted that their construction was also consistent, and the Union’s inconsistent, with the “industrial heritage” of the Roster Code, 50 and the custom and practice which has informed its operation for some time.51 The Roster Code precedes the current Agreement and has been applied in a manner consistent with Pacific National’s interpretation since its inception, with the endorsement of the Australian Rail, Tram and Bus Industry Union (RTBU).52 The Union has only recently been a party to the Agreement and its own evidence states that there was no concerns surrounding the interpretation of the Roster Code during the most recent bargaining negotiations.53

[99] The Respondent submitted that when making the recent Agreement, what occurred was that the parties negotiating, making and voting on the Agreement contemplated that the Roster Code would continue to apply in the same manner that it did under the predecessor agreement. 54 The Respondent submitted that this manner was consistent with the interpretation, previously set out in their submissions.

[100] In the above circumstances, the Respondent submitted that it was entitled to change Mr Watson’s shift in the manner that it did on 12 March 2020 and did not act contrary to the Roster Code in doing so. The changes were supported by both clauses 3.5 and 4.1.1. They could have also been supported by clause 2.5, but reliance was not placed on that provision in the circumstances. Finally, no occasion arose for invoking clause 7.1. That clause has no relevance whatsoever to this dispute, and its prominence in the submissions of the Union is something of a red herring.

[101] The Respondent therefore submitted that the Commission ought not therefore make the determination that the Applicant sought.

Adverse impacts of the shift change on Mr Watson

[102] The Respondent submitted that despite the Union making a number of contentions in support of its claim that Mr Watson was adversely impacted by the shift change. 55 It was argued that while it may be that Mr Watson was somewhat inconvenienced by the shift change, the Commission cannot be satisfied that the shift change adversely impacted on Mr Watson in circumstances where:

(k) he did not inform his supervisors of prior family commitments and accordingly, they were unable to be accommodated for; 56

(l) he was given 6 days’ notice of his shift change, significantly more than was required; 57

(m) he was given his local shift off on 19 March 2020; 58

(n) the shift change resulted in Mr Watson working 25 hours and 20 minutes, instead of the 32 hours and 50 minutes which he was originally rostered to work, and he was paid for working 38 hours that week; 59

(o) he was offered to drive up in a car, instead of driving the 82P5D train, on 18 March 2020 which would allow him to commence his shift later; 60and

(p) changes such as the one which occurred on 12 March 2020 are infrequent. 61

[103] The Respondent submitted that ultimately, the Commission need not consider these matters. The construction of the Agreement is clear and permitted the changes that were made.

Witness statement of Mr Adam Hunt

[104] Mr Adam Hunt provided a witness statement in support of the Respondent’s case. Mr Hunt was employed by the Respondent as a Superintendent at the Tennyson Depot supporting the Respondent’s operations. He had been employed in that role since 1 July 2020.

[105] Mr Hunt stated that in his role as a Superintendent, he is accountable for all narrow gauge operations between Tennyson and Maryborough West. This includes overseeing all labour, asset and equipment requirements to facilitate the timely delivery of 42 weekly freight services. The overall purpose of my role is to maximise operational efficiency, ensuring the allocation of assets and personnel meet the organisation’s operational and commercial obligations, whilst adhering to company and regulatory policies, procedures and guidelines, and in compliance with the Pacific National (Qld) Intermodal Train Crew Enterprise Agreement 2018 (the Agreement).

Rostering and shift changes

[106] Mr Hunt stated that in his role as Superintendent, he oversaw rostering requirements, ensuring that train services are allocated with drivers and manage resourcing where there are unforeseen circumstances which affect operations. The Agreement applies to all drivers in the Queensland intermodal business and sets out rostering practices. These rostering practices are located at Schedule 2 of the Agreement (Roster Code) and any rostering or changes to the roster may be made in accordance with the Roster Code. The Agreement also includes other clauses which can be used to make changes to the roster, for example the master roster can be suspended under clause 25 or cancellation of rostered working can be done in accordance with clause 24.

[107] A master roster is posted about two times a year and is indicative of the shifts that a driver will work across the complete roster cycle. The master roster identifies drivers’ rostered days off (RDOs). From the master roster, a working roster is posted 10 days prior to the start of a week. Mr Hunt stated that to his recollection, they had never changed a RDO between the master and working roster.

[108] Mr Hunt further stated that, on occasion, they are required to change shifts posted on the working roster. The most common changes that occur are as follows:

(a) Shifts are changed in accordance with clause 4.1 (next turn of duty) around once a month.

(b) Shifts are changed on the day of the shift in accordance with clause 7.1 (lift up/lay back) regularly.

[109] A shift may be changed for a number of reasons. For example:

(a) someone may be on sick leave and we would need to cover their shift;

(b) train schedules may change or there may be delays in the network;

(d) the customer might cancel a service.

[110] Mr Hunt further stated that to his knowledge, there has never been an understanding in the Queensland intermodal business that changes to shifts can only be made subject to the lift up lay back clause or that shifts are only changed due to a shift being cancelled.

[111] He stated that when he was required to change a shift and there is 24 hours or more before the start time of the shift, I will normally look to clause 3.5 (minor change) or clause 4.1 (next turn of duty), depending on the circumstances behind the change.

[112] Mr Hunt stated that he would use clause 3.5 if, for example, someone has called in sick and they needed other drivers to cover jobs for the driver on leave. This might involve a driver who is working a barracks job bringing back train X instead of train Y. He stated that there has never been a practice, when using clause 3.5, that the shift change can only result in a start or finish time that, when compared to the driver’s original shift, is brought forward by only 3 hours or extended by 4 hours.

[113] Clause 4.1.1 is also a clause that can be used to change a shift up to a day before the shift is scheduled to commence. Drivers are required to check the working roster at the end of each shift to see if any changes have been made to their next turn of duty (that is, their next shift). If on signing off, no change has been made to the working roster, we can still advise a driver of a change to the working roster in the AM period (between 0930 and 1100) if the driver is due to sign on between midnight and 0600 the next day. We can also advise the driver of a change to their working roster in the PM period (between 1600 and 1730) if the driver is required to sign on after 0600 the next day.

[114] It has never been a practice that a change made under clause 4.1.1 is limited by clause 7.1 (lift up/lay back) so that any change made can only result in the driver’s original shift being brought forward by 3 hours or extended by 4 hours. In my view, a lift up or lay back in the start or finish time is used only in respect of a confirmed shift on a given day. However, the shift itself may be changed by using either the minor change or next turn of duty provisions. This has been the custom and practice in the business for at least as long as he had been working in it.

[115] Examples of circumstances in which clause 7.1 may be used in practice include where there is a train delay, if we need a driver to put their own train together, to rescue another service prior to completing a rostered shift or if a driver needs to have their next turn of duty laid back due to fatigue.

[116] If a rostered shift is cancelled, we would inform the driver as soon as possible but not later than 3 hours before the start time of the shift in line with clause 4.1.2 or rely on the provisions in clause 24 of the Agreement, which allow for less notice to be given in some circumstances.

Mr Watson’s shift change

[117] Mr Hunt stated that on 11 March 2020, he was advised that one of the drivers, Mr Mal Day, had injured himself after falling from a platform. Due to this injury he was on sick leave and would not be able to complete his shift on Wednesday 18 March 2020 driving vehicles 82P5D and 87P2A. The working roster for 15 March 2020 to 21 March 2020 was annexed to his statement and marked “AH-1”.

[118] In order to determine how to cover Mr Day’s job, Mr Hunt looked to the working roster for the week. In doing this, he started at the top of the roster and moved down. Ms Angela Jeffrey’s 87P4A job had been cancelled but he could not give the job to her, since there would not be enough time before the end of her shift on Tuesday 17 March 2020 and the 87P4A job the following day. Drivers are required to have at least 12 hours rest after signing off before signing on again (clause 13 of the Agreement).

[119] Mr Hunt stated that he could not give the shift to Mr Gregory Hewett, who was next on the roster, because he had a RDO on 17 March 2020 and would not be able to sign on before 0600 on 18 March 2020.

[120] Mr Hunt further stated that he then considered whether Mr Watson would be able to cover Mr Day’s shift, as he was the next name on the roster. Mr Hunt noticed that if he gave Mr Watson’s current shift on 17 March 2020 to Ms Jeffrey, it would fit in with her roster and Mr Watson would be free to cover Mr Day’s shift on 18 March 2020.

[121] Mr Hunt stated that at 3:44 pm on 11 March 2020, once he had planned Mr Day’s shift coverage, he messaged Mr Watson, stating the following:

“Hey Watto, do you have a few minutes for a chat. If not please see me when you sign on for 82P9 Friday.

Thanks”

[122] Mr Watson replied later that day at 5:49 pm:

“Just noticed your msg. Can chat now or I’ll call tomorrow in office hours”

[123] Mr Hunt stated that by that time he had left the office, so he replied:

“Call tomorrow mate when I’m in front of the computer if that’s ok. Cheers.”

[124] Mr Hunt went on to describe that at 12:33 pm on 12 March 2020, he spoke to Mr Watson over the phone. According to Mr Hunt, the conversation was to the following effect:

“Mr Hunt: Hi Steve, I need to change your working roster next week to cover Mal Day’s absence.

Mr Watson: Is my job cancelled?

Mr Hunt: No.

Mr Watson: But the EA states the cancellation process in the event of a cancellation.

Mr Hunt: I’m not cancelling your shift, I’m changing as per 4.1 next turn of duty and 3.5 of the roster guidelines. The local shift will be dropped off so it will just be a one box job.

Mr Watson: Can I drive up to reduce time in barracks?

Mr Hunt: That’s fine, I just need to check the car balances closer to the date.

Mr Watson: The job is not cancelled.

Mr Hunt: Let me seek more advice and get back to you.

Mr Watson: I am going to the union.

Mr Hunt: Ok.”

[125] He further stated that following this conversation, he spoke with Mr Nathan Heatley (Pacific National Superintendent Freight) and Mr Errol Vaughan (Supervisor) to confirm that this specific situation was no different to how changes using clause 3.5 and clause 4.1 have previously been made. They all agreed that the present shift change was, if anything, better than similar changes in the past as Mr Watson was being given 6 days’ notice.

[126] Mr Hunt then messaged Mr Watson at 12:57 pm on 12 March 2020 confirming what I had said over the phone:

“Hey Steve, have received advice. Both clauses 3.5 and 4.1 apply to the change”

[127] Mr Watson replied to this message with the following:

“Ok. I’m not about to argue this on my day off. I will notify the Union.”

[128] Mr Hunt then received a call from Wayne Coombs from the AFULE at 1:22 pm, stating that they had a conversation to the following effect:

“Mr Coombs: I want to dispute the change to Mr Watson’s roster. Was Mr Watson’s original job cancelled?

Mr Hunt: The change was per clause 3.5 of the roster guidelines to cover Mal Day’s sick leave.

Mr Coombs: You need to put Steve back onto his original job.

Mr Hunt: I need Steve to cover.

Mr Coombs: This is officially Step 1 of the dispute process.”

[129] At 9:15 am on 13 March 2020, Mr Hunt met with Mr Watson, his representative Mr Coombs and Mr Vaughan. During the meeting, an exchange between Mr Watson and Mr Hunt occurred to the following effect:

“Mr Hunt: We need to make this change because Mal is off sick and Angela’s job has been cancelled.

Mr Watson: I understand the reasons for the shift change. However I believe I am entitled to stay on the original rostered job as my original job has not been cancelled.

Mr Hunt: I agree that your original job has not been cancelled however we are not using the cancellation clause of the Agreement. We are making this change using clause 4.1 and 3.5.

Mr Watson: I don’t classify this as a minor change.

Mr Hunt: What do you classify as a minor change?

Mr Watson: Lift up lay back.

Mr Hunt: I classify minor change as box job to box job and lift up lay back is its own provision. I also feel you’ve been adequately compensated with the local shift off and driving up later by car.

Mr Watson: I have been given a working roster to organise my life and family, I don’t see how you can change it.

Mr Hunt: Do you have anything specific or just don’t agree to the change?

Mr Watson: I just don’t agree with the change or EA interpretation. I don’t have anything specific on.

Mr Hunt: That’s why we’ve given you 6 days’ notice. Just to clarify, are you refusing to do the job?

Mr Watson: No I’m not refusing, I would just like it resolved so I can return to my original job. Since we can’t come to an agreement, I want to proceed to Step 2.

Mr Hunt: Ok, please put it in writing with the details of the dispute.

[130] Mr Hunt stated that Mr Watson denied that he had any family commitments during the meeting on 13 March 2020. Mr Hunt specifically asked him if he did.

[131] On 13 March 2020 Mr Hunt also spoke to another driver, Jason Brown, about the changes that would need to be made to cover Mr Day’s leave. He said to Mr Hunt words to the following effect:

“Yeah, I figured that would be case and that there would be changes made due to Mal’s injury”.

[132] On 16 March 2020, Mr Hunt stated that he received a Step 2 dispute process notification, addressed to Mr Heatley, from Mick McKitrick. In the letter, Mr McKitrick stated:

“During the Step 1 Dispute discussion on Friday 13 March, Mr Watson informed the company that he had family arrangements for the afternoon of Wednesday the 18 March and that the new working does not have him returning until 0440 the following morning. This seems to have been ignored by the company. Mr Watson informed Mr Hunt on Thursday that the working roster was used by him to plan his family commitments.”

[133] Mr Hunt then stated that he called Mr Watson at 15:53 on 17 March 2020 to ask him why he told the AFULE that he had informed me of prior family commitments when he had not. The exchange was to the following effect:

“Mr Hunt: Hi Steve, thanks for answering prior to signing on. I have seen the Step 2 dispute letter and it says that you have prior family commitments. Why didn’t you tell me that earlier?

Mr Watson: I don’t need to tell you.

Mr Hunt: I gave you 2 opportunities to disclose this and I could have potentially worked with you if required.

Mr Watson: I don’t have to, I work my life around the working roster and I have my kids now.

Mr Hunt: The issue about me not working with your prior commitments is a blatant lie, you had several opportunities to tell me this.”

[134] Mr Hunt further stated that if Mr Watson had communicated to him that he had prior family commitments, it would not have been a problem and he would have endeavored to make other arrangements to cover Mr Day’s shift if practicable.

[135] He went on to state that out of good faith, he offered Mr Watson the option to drive up to Marybourough West Junction instead of taking the 82P5D so that he could start his shift later. He was also given his local shift off that week.

[136] Mr Watson ultimately told Mr Hunt on 16 March 2020 in relation to signing off that he had decided not to drive the car up because he said it would mean that he agreed with the shift change.

[137] In the week 15 March 2020 to 21 March 2020, Mr Watson was rostered to work 32 hours and 50 minutes. As a result of the shift change, he only worked 25 hours and 20 minutes that week.

Steven Watson Statement

[138] Mr Hunt set out his response to the witness statement of Mr Steven Watson. In response to paragraph 73 of the Watson statement, he considered the statement was inaccurate. Mr Hunt stated that they cancel shifts due to cancellations on at least a weekly basis, use the lift up and lay back clause pretty much daily and make changes to the next turn of duty on at least a monthly basis (and sometimes more frequently).

[139] In reference to paragraph 85 of the Watson statement, he considered the statement was inaccurate. There are a number of reasons which might necessitate a shift change as already described. Where there is a force majeure or other unplanned event, clause 25 of the Agreement allows the entire roster to be suspended with 12 hours’ notice.

[267] Mr Watson further conceded in cross examination that the employer could not have known the nature of his objection, as he had not specifically raised such with the employer:

“Yes. Then the next point being giving working roster and organised life and family. Nothing specific. Do you see that?---Yes.

And do you accept that that is a note that you did not, that you said there was nothing specific?---Oh, yes. Nothing specific because - - -

Do you want the - - -?---Can I please add? Nothing specific because every time the posted roster is released I have family commitments.

What you said to Mr Hunt, in effect, was that it was none of his business, didn't you?---I wasn't harsh like that but I believe my private life is private.

Yes. And you said you didn't - you feel you needed to tell him anything about it?---No. Because I feel it's private.

Yes. So you didn't tell him about needing to pick up your daughter from school, did you?---No, that's my private things. No, not at that time. No.

And you didn't tell him about the need to pick up one of your children from the day care, did you?---No.

No. And would you accept, Mr Watson, that it was impossible for Mr Hunt to take those personal commitments into account if you didn't tell him about them?---Yes.

And if you had told Mr Hunt about them he might have been able to see if other arrangements could have been put in place. Do you accept that?---Yes.

So did you expect Mr Hunt to read your mind, Mr Watson?---No.

No. So to the extent you had personal commitments they weren't shared with Mr Hunt, were they?---No, I believe that to be private.

Yes. Don't get me wrong, Mr Watson, I'm not suggesting these things aren't private but the proposition I'm putting to you is that it was absolutely impossible for Mr Hunt to take into account your personal commitments if you didn't tell him what they were?---Ah - yes.

Yes. And, in fact, you didn't tell him what they were, did you?---No. I didn't give specifics.

No. And Mr Hunt provided you with an opportunity to provide him with specifics, didn't he?---Yes.

And you declined to do so?---On the grounds of my privacy.

Yes. But you declined to do so for whatever reasons you've - - -?---Yes. Yes.

- - -I'm not being critical of you, Mr Watson?---Yes.

For your own reasons you declined to provide him with specifics?---Yes, Mr Perry. Yes.

Yes. But you do accept that had you done so Mr Hunt would have had the opportunity to see whether some other rostering change could have been made to accommodate those?---Yes.” 87

[268] The Applicant made submissions in relation to the purpose of the Roster Code (schedule 2):

“The Roster Code itself creates a prescriptive scheme for the rostering of workers, which is intended to balance:

(a) Pacific National’s 24 hour a day and seven-day a week business in which employees are required to understand and respond to the demands of such an operational environment (clause 1.1 and 1.2); and,

(b) The personal obligations and needs of employees which should be accommodated in a roster system that is safe, fair and equitable and cognisant of the Employee’s social/domestic needs and responsibilities (clause 1.3).

The parties expressly intended that these ‘understandings’ underpin the application of the principles of the Roster Code (Clause 1.4).” 88

[269] At the hearing, the Applicant made submissions as to the construction of the Agreement with reference to the Roster Code as follows:

“We say on a proper construction of the agreement, the respondent was not entitled to change the applicant's shift in the manner which occurred by virtue of clause 7.1 of the roster code, which appears, as I have noted, at schedule 2 of the agreement, which places express limits on the extent to which the respondent may bring forward or delay a rostered shift in the working roster and/or, in the alternative, clause 3.5 of the roster code in that clause 3.5 of the roster code does not permit the respondent to change a worker's shift greater than the periods of time stipulated by 7.1 and, irrespective of whether or not a minor change can exceed those limits, it was otherwise not a minor change so as to fall within the bounds of that clause.” 89

[270] The Respondent submitted that this was fundamentally an agreement construction case. The Respondent set out that the Applicant’s case provided a limited construction of the roster clauses, in particular the lift up, layback provisions. The Respondent emphasised that the Applicant’s focus on those clauses did not take into account the overall rostering provision in the agreement:

“Step 1 is there is a master roster. The purpose of the master roster is to mark out rostered days off, so to rule out days in the roster cycle in which the employees cannot be asked to work without their consent. So that's the first step is the master roster.

The second step is that 10 days out from the commencement of a roster period, a working roster is distributed and there are some examples in the material of working rosters that the Commission will see when the evidence is read. The working roster provides the anticipated roster for the roster period. So that's the second level.

The third level is there are then a range of ways in which the working roster can be adjusted, that is to say, the shifts in the working roster can be adjusted having regard to matters that are dynamic in the business. There are two principal ways in which the shifts in the working roster can be changed. The first is under the minor change provision, which is clause 3.5 of schedule 2, and the second is under the provisions that deal with next turn of duty. Those provisions permit changes at one of two junctures. The first is prior to signing off on the previous shift, which is clause 2.5 of schedule 2, and the second is clause 4.1 and, more specifically, 4.1.1, which permits a change to the roster in the relevant advice period leading into the shift in question. So that's the third level: changes that are permitted to the shifts themselves, and they are the relevant provisions.

The fourth level is then, once a shift is confirmed, either because it is in the working roster and is not subject to change or has been the subject of advice to the employee under the next turn of duty provisions, there is then the ability to change start and finish times on the day of the shift in question, and that is where clause 7.1 of schedule 2 has work to do, and that is only where clause 7.1 of schedule 2 has work to do.” 90

[271] In this case, Mr Watson was aware of the circumstances regarding the requirement to change the roster, being that Mr Day had fallen off the platform and injured himself. Mr Watson was aware he was being asked to cover Mr Day’s absence. He was asked if there was a particular reason, he was not willing to work the shift, and asked if there were specific circumstances preventing such. Mr Watson, in his evidence (at PN778) accepted that he had not raised his personal difficulties with his managers.

[272] Mr Watson later advised the Respondent that he had specific family commitments. The evidence was that, had he told the Respondent this initially, this would have been accepted. Mr Watson’s evidence as to why he did not was on the grounds of privacy. While Mr Watson was entitled to restrict the information, he gave his employer, they could act only on what information he gave them. When asked initially, Mr Watson said he was not refusing to work the shift, and merely disagreed with the interpretation of the Agreement. Mr Hunt was understandably frustrated when the letter from the Union did not accurately address the exchange.

[273] Mr Watson has not assisted the circumstances of this Agreement interpretation matter by not being responsive when consulted regarding his availability. The evidence of Mr Hunt was that he would have made changes to accommodate Mr Watson. It is also noted that I prefer the evidence of Mr Hunt that Mr Watson was offered ‘a car’.

[274] This Agreement interpretation does not require consideration of extrinsic evidence, the ordinary meaning of the relevant words has been considered as part of the Agreement viewed as a whole.

[275] The negotiation of the Agreement was referred to, insofar as there was an established custom and practice that continued in regard to the rostering process, in the business. Mr Hunt and Mr Macauley provided detailed evidence on the historical rostering process that remained relevant as a result of the negotiation of the predominantly rolled over Agreement. This practice remains relevant with one change made to the hours of the lift up or layback provisions in relation to a confirmed shift. The industry experience of Mr McKitrick, in discussing this change has been taken into account.

[276] The industrial context of the words of the Agreement and the particulars of this dispute have been set out in detail. It is worthy to note that the operating environment of the Employer’s Business is a dynamic, competitive one, in which the employer needs to be significantly responsive to changing demands on the business. Further, there is a need for the employer to balance this with the requirements of their employees, in particular the drivers.

[277] The circumstances of the drivers in question in this dispute were taken into account, however the business only received limited information to work with, as follows; 91

“The fifth proposition, which follows from the fourth, is that Mr Hunt would have considered the personal difficulties of Mr Watson and made changes had he raised them. However, he was unable to do so if these matters were not raised with him. And if I can just refer the Commission to the evidence of Mr Hunt at paragraph 33, and in his cross-examination, PN1065 and PN1179, Mr Watson in his cross-examination accepted the proposition I've just advanced at PN749 to 50, 753, 796 to 799 and 802.

So Mr Hunt was effectively put in the position where he was expected to be a mind reader. He asked Mr Watson whether there were any particular difficulties he had and he was told there was nothing specific, and it's accepted by Mr Watson himself that there wasn't really anything Mr Hunt could have done to have changed the roster around to accommodate Mr Watson's personal difficulties if he didn't tell him.

The sixth proposition is that this business has a small team of 12 drivers that cover a large area of Queensland. There are limits to the changes that are available due to the size of the team and the need to manage absence and fatigue, so that Mr Hunt had available to him a limited number of options to cover Mr Day's absence, and he, in his evidence, talks about the iterative process he went through and when he came to Mr Watson, Mr Watson raised no specific concern with him, so he went ahead and confirmed the roster. He wasn't to know that there were any particular circumstances that gave rise to a difficulty, other than Mr Watson's disagreement with him as to the way in which the rostering provision worked.

So on the merits of the matter we say that this was a relatively unusual circumstance. There was an unplanned absence of an employee that was triggered by an injury. Mr Watson was given plenty of notice of the change. His personal circumstances could have been accommodated had he raised them, and Mr Hunt is very specific about that in his evidence, and I think in cross-examination he accepted he was angry when he saw the union's letter because of the false suggestion that Mr Watson's personal circumstances had been raised and not considered.

The simple fact is that they weren't and they couldn't have been considered, so that the situation, in my respectful submission, was an eminently avoidable one. It was Mr Watson's choice as to whether or not he shared his personal circumstances, but absent him sharing those circumstances he really put himself in a situation where he received the changes to his roster that he did. Had he raised the matters that he now comes to the Commission and raises at the time, as Mr Hunt makes clear, he would've accommodated those by finding another way of rejigging the roster or another employee to pick up the shifts.”

[278] I concur with the approach, as particularised to the interpretation of the rostering process (as set out below) by the Respondent in relation to each step of the rostering process: 92

“If I can just deal with the first level in the analysis which is the master roster, that's dealt with at clause 22 of the agreement, which can be found at page 18 of the agreement, and if I can just point the Commission to the most relevant parts of that clause, it's clause 22.3, which deals with the number of rostered days off which are to be permitted in a roster cycle, and if I can also point the Commission to clause 22.10 which says:

Pacific National will not roster work on an employee's RDO unless agreed by the affected employee.

So, as I said, the purpose of the master roster is to mark out RDOs as no go zones for the rostering of work to protect those days.

All of the witnesses in their evidence accepted that proposition; Mr Watson, at PN379 through to 395, and in particular at PN389 and 395. Mr Macauley at paragraph 13(b) of his statement said he'd never seen a rostered day off changed, and Mr Hunt gave evidence at paragraph 7 of his statement to a similar effect.

So that's the material that deals with the first level. The second level, which is the establishment of the working roster, if the Commission can turn to schedule 2 of the agreement that starts at page 47?

THE COMMISSIONER: Thank you.

MR PERRY: The working roster, the Commission will see that at 3.2 there's a reference to the master roster again, which shall be exhibited primarily for the purpose of indicating duty free days and indicative times.

And in 3.3:

From this a working roster shall be posted at least 10 days in advance providing a week's work with details of attendance requirements where practicable.

So the company is not obliged to provide those details but the practice is of them doing that.

In relation to a master roster there are examples of a master roster and if I can just refer the Commission to attachment AH1 of Mr Hunt's statement, which is exhibit 6 where there's an example of what a master roster looks like.

So what the - I'll withdraw that. What the working roster looks like. What the working roster does is it establishes a default position for the week in question, and the evidence of Mr Macauley at paragraph 16 was that it's fairly seldom changed. Mr Macauley said only in about five per cent of cases would there be a change made to the working roster. And Mr Hunt gave evidence at paragraph 38 of his statement that it may be a monthly type of occurrence. So the working roster marks out the default roster position which is changed - it is changed from time to time but it's not a common place occurrence.

If I can then move on to the third level, which is changes to shifts, which is really the nub of this case, the evidence is that there are many reasons why it may be necessary to change a rostered shift, and Mr Macauley deals with that at paragraph 14. He refers to cancellation of services, delays in services due to system failures, accidents, track work or others operators blocking access, unplanned absences such as personal leave, changes in customer demand and weather events.

So there are a number of circumstances in which it is necessary for the company to alter its operating schedule with a consequential need to therefore look at changing the rostering of its employees who operate those services. Mr Hunt gives similar evidence at paragraph 8.

There are three key mechanisms - and I touched on this a moment ago - there are three key mechanisms in the agreement in which a shift in a roster can be changed. The first is a cancellation and that's dealt with in clause 24 of the agreement and also at clause 4.1.2 of schedule 2. And in this particular case there was an injury to an employee, Mr Day, and that created the need for some shifts to be cancelled, and including ultimately for Mr Watson. But it seems to be accepted that this is a mechanism available to the company, and the shifts which are disputed in this particular matter are not the cancelled shifts. So we raise the mechanism of cancellation for an understanding of the completeness of the way in which the clauses operate, but it doesn't seem in contest that the company has the right to cancel shifts. So shift cancellations it would appear common ground are not relevant to this immediate dispute.

That's the first mechanism. The second mechanism is the minor change mechanism, and my learned friend touched on that in his address to the Commission. And that is dealt with at clause 3.5 of schedule 2. It's important, in my respectful submission, in interpreting clause 3.5 to look at the word 'minor' in its context. My learned friend, in his submissions, sought to devoid the word of context and make submissions based upon what might be said to be an ordinary meaning of the word 'minor'.

With respect, that is a misconstruction of the clause. It's important to look at the precise words of the clause, and it says:

Minor changes, e.g., covering a shift or shifts due to someone being sick or on leave will be notified in 24 hours. Such absences may require part-time, temporary or casual employees to cover the required shifts to satisfy contractual requirements.

So the words in brackets are particularly important to the proper interpretation of what the words 'minor change' mean. Because what they are really saying is a situation where a person is asked to cover another person's shift because they're on sick leave is a minor change. Well, that's exactly what happened here. Mr Day was on personal leave because he had unfortunately been injured, and there were a bunch of changes that were consequential to him bring on personal leave that needed to be made in order to ensure that the relevant services could be operated.

THE COMMISSIONER: He works at the same - - -

MR PERRY: So a minor change - - -

THE COMMISSIONER: Mr Day works at the same depot, doesn't he, as Mr - is that right? He's employed - that's his same depot?

MR PERRY: Yes.

THE COMMISSIONER: Yes.

MR PERRY: I think that was the evidence, yes. He's certainly within the same rostering group, and when one looks at the working rosters which are in evidence you can see Mr Day is in there.

THE COMMISSIONER: Yes.

MR PERRY: And then he comes out. So that if one looks at the reality of the situation here the evidence was that there are only 12 drivers in this depot in this group of employees, Mr Watson and Mr Day included in that 12, so that one of the other 11 will need to cover the shift, and that's at PN426 to 432. And for there to be a shift change by its very nature it's got to be a whole shift, so, you know, a minor change to cover a sick leave absence, as the clause refers to, is in its proper construction another shift, a different shift, which becomes necessary for someone to pick up because someone else is sick or on leave, so that the concept of a minor change needs to be looked at in that context, that context coming from the explicit wording of the clause and also the custom and practice that I referred to earlier. So, in our submission, clause 3.5 permits a shift change to cover an absence or a circumstance triggered by an absence, and that is exactly what happened here.

My learned friend seeks to divorce the word 'minor' and point to some factual matters to demonstrate inconvenience to Mr Watson, but, in my submission, that does not give proper weight to the words in the context in which they find themselves in the agreement as written, and also the industrial context I referred to before.

So that's the second circumstance, and that alone was sufficient for the company to adopt the position that it did in relation to this matter. The third circumstance is next turn of duty. Now, the next turn of duty provisions, Commissioner, are a suite of provisions that together permit a shift change ahead of the employee's next rostered shift in the working roster.”

[279] Discussions occurred in relation to the particular circumstances that arose and the proposed change to the working roster that was commensurate with the provisions of the Agreement, in relation to a minor change, and by adopting the next turn of duty clause.

[280] I am satisfied that the Respondent did not act contrary to the Roster Code. The Roster Code specifically provides that ‘minor changes’ includes covering a shift or shifts due to someone being sick or on leave. Mr Day was injured at work and required to take leave. This accords with the definition of minor changes, contemplated in the Agreement, and the response of the employer, taking into account the comprehensive rostering provisions in the Agreement.

CONCLUSION

[281] For the reasons set out, the questions for arbitration are answered as follows:

1. By the shift change, did the Respondent act contrary to the Roster Code at Schedule 2 of the Pacific National (Qld) Intermodal Train Crew Enterprise Agreement 2018? I find the answer is No.

2. Based on the answer to the above, was Pacific National entitled to change Mr Watson’s shift on 12 March 2020 in the manner that it did? I find the answer is Yes.

[282] I Order accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 Statement of Steven Watson dated 14 October 2020 at [1].

2 Statement of Steven Watson dated 14 October 2020 at [5] to [10].

3 Statement of Steven Watson dated 14 October 2020 at [88] to [93] and Annexure SW2.

4 Statement of Steven Watson dated 14 October 2020 at [101] to [106] and Annexure SW4.

5 Statement of Steven Watson dated 14 October 2020 at [133], [141] to [143] and Annexure SW4.

6 Section 52(2)(d) of the Rail Safety National Law (Queensland) applied by virtue of the Rail Safety National Law (Queensland) Act 2017.

7 NTEU v La Trobe University [2015] 254 IR 238 at [108].

8 Response to F10 dated 6 August 2020 at 5(d) and 5(g).

9 Response to F10 dated 6 August 2020 at [6].

10 Macquarie Dictionary.

11 Statement of Steven Watson dated 14 October 2020 at [90] to [93], [104] to [106], [144] to [146] and Annexures SW2 and SW4.

12 Statement of Steven Watson dated 14 October 2020 at [90], [106], [146] and Annexures SW2 and SW4.

13 Statement of Steven Watson dated 14 October 2020, Annexures SW2 and SW4.

14 Statement of Steven Watson dated 14 October 2020 at [90] to [93], [104] to [106], [144] to [147] and Annexures SW2 and SW4.

15 Statement of Steven Watson dated 14 October 2020 at [90] to [93] and [104] to [106], [144] to [146]

16 Statement of Steven Watson dated 14 October 2020 at [102], [110] and [132].

17 Statement of Steven Watson dated 14 October 2020 at [60] to [66], [92], [93] [104], and [106].

18 Statement of Steven Watson dated 14 October 2020 at [133], [141] to [143] and Annexure SW4.

19 Statement of Steven Watson dated 14 October 2020 at [149] and [150].

20 Statement of Steven Watson dated 14 October 2020 at [94] to [98] and [147] to [150].

21 Statement of Steven Watson dated 14 October 2020 at [101] to [140].

22 Statement of Steven Watson dated 14 October 2020 at [151].

23 Berri at [114].

24 Statement of Mick McKitrick dated 15 October 2020 at [4] to [14].

25 Response to F10 dated 6 August 2020 at [7(a)] and [7(b)].

26 Statement of Steven Watson dated 14 October 2020 at [125] to [127].

27 Statement of Mick McKitrick at [33] to [35].

28 Berri at [114].

29 Statement of Mick McKitrick at [15] to [23].

30 Witness Statement of Mr Mick McKitrick, dated 15 October 2020.

31 Witness Statement of Mr Mick McKitrick, dated 15 October 2020 at [13].

32 Witness statement of Nicholas Macauley dated 5 November 2020 at [7]-[9].

33 Witness statement of Adam Hunt dated 5 November 2020 at [3]; Macauley at [9].

34 Hunt at [16]-[19]; Macauley at [25].

35 See Hunt at “AH-1”.

36 See Hunt at “AH-1” and explanation of the roster change at [16]-[19].

37 Hunt at [34]; Macauley at [28].

38 Hunt at [35].

39 Hunt at [23] and [28]; Macauley at [25].

40 Hunt at [26] and “AH-2”; Macauley at [25].

41 Hunt at [28]; Macauley at [25].

42 Ibid.

43 Hunt at [31]; Macauley at “NM-1”.

44 Hunt at [29] and [32]; Macauley at [26] and “NM-2”.

45 (2018) 264 FCR 536, [2018] FCAFC 131.

46 Ibid at [197].

47 Macauley at [7] and [13].

48 Hunt at [8]; Macauley at [14].

49 Macauley at [9].

50 Veolia Transport Sydney Pty Ltd v Mifsud [2012] FCA 1472 at [18]-[20]; Transport Workers’ Union of Australia v Linfox Australia Pty Ltd (2014) 318 ALR 54, [2014] FCA 829 at [36].

51 Hunt at [13]; Macauley at [12].

52 Macauley at [32], [33] and [46].

53 Macauley at [31]-[33].

54 Ibid.

55 Applicant’s submissions at [68].

56 Hunt at [29], [32] and [33]; Macauley at [26] and [44].

57 Hunt at [24] and [49].

58 Hunt at [34] and [49]; Macauley at [28].

59 Hunt at [36].

60 Hunt at [34]; Macauley at [28] and “NM-2”.

61 Hunt at [7] and [38]; Macauley at [16] and [37].

62 Witness statement of Nicholas Macauley dated 5 November 2020.

63 Applicant’s Written Outline of Submissions in Reply, dated 12 November 2020, at [5]; reference made to Statement of Steven Watson dated 12 November 2020 at paragraph [17] to [20], [22] to [26], and [41].

64 Applicant’s Written Outline of Submissions in Reply, dated 12 November 2020, at [9]; Applicant’s Outline of Submissions dated 15 October 2020 at paragraphs [21] to [68].

65 Applicant’s Written Outline of Submissions in Reply, dated 12 November 2020, at [11]; Statement of Mick McKitrick dated 15 October 2020 at paragraphs [15] to [23]; Statement of Mick McKitrick dated 12 November 2020 at paragraph [11].

66 Applicant’s Written Outline of Submissions in Reply, dated 12 November 2020, at [14]; Statement of Mick McKitrick dated 15 October 2020 at paragraphs [15] to [23]; Statement of Mick McKitrick dated 12 November 2020 at paragraph [11].

67 Applicant’s Written Outline of Submissions in Reply, dated 12 November 2020, at [16].

68 Applicant’s Written Outline of Submissions in Reply, dated 12 November 2020, at [17]; Applicant’s Outline of Submissions dated 15 October 2020 at paragraphs [50 to [53].

69 Applicant’s Written Outline of Submissions in Reply, dated 12 November 2020, at [19]; Applicant’s Outline of Submissions dated 15 October 2020 at paragraphs [58] to [67].

70 Applicant’s Written Outline of Submissions in Reply, dated 12 November 2020, at [21]; Applicant’s Outline of Submissions dated 15 October 2020 at paragraphs [42], [46] and [54(a)].

71 Applicant’s Written Outline of Submissions in Reply, dated 12 November 2020, at [22]; Response to F10 dated 6 August 2020 at paragraph [5(g)].

72 Applicant’s Written Outline of Submissions in Reply, dated 12 November 2020, at [23]; Applicant’s Outline of Submissions dated 15 October 2020 at paragraphs [46] and [54(c)].

73 Applicant’s Written Outline of Submissions in Reply, dated 12 November 2020, at [24]; Response to F10 dated 6 August 2020 at paragraph [5(h)].

74 Applicant’s Written Outline of Submissions in Reply, dated 12 November 2020, at [25]; Respondent’s submissions dated 5 November 2020 at paragraph [19].

75 Applicant’s Written Outline of Submissions in Reply, dated 12 November 2020, at [26]; Statement of Nicholas Macauley dated 5 November 2020 at paragraph [46].

76 Applicant’s Written Outline of Submissions in Reply, dated 12 November 2020, at [27]; Applicant’s Outline of Submissions dated 15 October 2020 at paragraphs [27] to [57].

77 Applicant’s Written Outline of Submissions in Reply, dated 12 November 2020, at [31]; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union' known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited (2017) 268 IR 285 (Berri) at [114](9).

78 Applicant’s Written Outline of Submissions in Reply, dated 12 November 2020, at [32]; Berri at [114](11).

79 Applicant’s Written Outline of Submissions in Reply, dated 12 November 2020, at [32]; Statement of Mick McKitrick dated 15 October 2020 at paragraphs [4] to [14]; Statement of Mick McKitrick dated 12 November 2020 at paragraphs [3] to [20].

80 Applicant’s Written Outline of Submissions in Reply, dated 12 November 2020, at [34]; Statement of Steven Watson dated 14 October 2020 at paragraph [73] to [87] and [125] to [127]; Statement of Steven Watson dated 12 November 2020 at paragraphs [5] to [10], [53] and [55] to [56]; Statement of Mick McKitrick dated 15 October 2020 at paragraphs [33] to [35]; Statement of Mick McKitrick dated 12 November 2020 at paragraphs [5] to [9] and [12].

81 Statement of Mick McKitrick dated 12 November 2020, at [6].

82 Statement of Steven Watson dated 12 November 2020, at [30]-[39].

83 Statement of Steven Watson dated 12 November 2020, at [62].

84 [2017] FWCFB 3005.

85 [2020] FWC 6720.

86 Paragraph [717] to [722] transcript, 19 November 2020.

87 Paragraph [743] to [760] transcript, 19 November 2020.

88 Paragraph [24] to [25] Applicant’s written submissions, 15 October 2020.

89 Paragraph [69] transcript, 19 November 2020.

90 Paragraph [160] to [163] transcript, 19 November 2020.

91 PN213 to PN217 of the transcript, 11 February 2021.

92 PN123 to PN151 of the transcript, 11 February 2021.

Australian Federated Union of Locomotive Employees v Pacific National Queensland Pty Ltd