Australian Municipal, Administrative, Clerical and Services Union v Ergon Energy Corporation Limited
[2011] FWA 1956
•1 APRIL 2011
[2011] FWA 1956 |
|
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Australian Municipal, Administrative, Clerical and Services Union
v
Ergon Energy Corporation Limited
(C2009/10916)
Electrical power industry | |
COMMISSIONER ASBURY | BRISBANE, 1 APRIL 2011 |
Application to deal with dispute - Arbitration - interpretation of Agreement.
1. OVERVIEW
[1] On 12 November 2009 an application was made by the Australian Municipal, Administrative, Clerical and Services Union (ASU) under s. 739 of the Fair Work Act 2009 for Fair Work Australia (FWA) to deal with a dispute with Ergon Energy Corporation Limited (Ergon). The dispute arose under the Ergon Energy Union Collective Agreement 2008 (the 2008 Agreement). Section 739 of the Act is in the following terms:
739 Disputes dealt with by FWA
(1) This section applies if a term referred to in section 738 requires or allows FWA to deal with a dispute.
(2) FWA 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 FWA dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises FWA to deal with the matter.
Note: This does not prevent FWA from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effectas subsection 65(5) or 76(4) (see also subsection 55(5)).
(3) In dealing with a dispute, FWA must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that FWA may arbitrate (however described) the dispute, FWA may do so.
Note: FWA 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), FWA must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) FWA may deal with a dispute only on application by a party to the dispute.
[2] The provisions of the 2008 Agreement under which disputes are to be resolved are found in clause 2.1. That clause provides for a staged process including internal resolution and reference to the Australian Industrial Relations Commission (now FWA) for conciliation. The provisions dealing with conciliation allow for a recommendation to be made, and require the parties to inform the Commission of whether or not they intend to comply with such a recommendation, within three working days of the recommendation being made. Where the Commission is advised that either party does not intend to comply with a recommendation, the Commission will at the request of either party, list the matter for arbitration.
[3] In relation to arbitration, the 2008 Agreement provides as follows:
Arbitration by the Commission
2.1.19 In the event the matter is not resolved through conciliation and proceeds to arbitration either party to the dispute may request another member of the Commission to arbitrate and hand down a binding decision. In arbitrating the matter the Commission will give the parties an opportunity to be heard formally on the matter(s) in dispute.
2.1.21 After the hearing, the Commission will provide the decision in writing to the parties to the dispute as quickly as practicable.
[4] This dispute was subject of conciliation by a member of FWA. A recommendation was made, and was not accepted by the ASU.
[5] The matter was referred to the Tribunal as presently constituted for arbitration.
2. THE QUESTION FOR ARBITRATION
[6] Following a conference of the parties, it was agreed that the question for arbitration is:
“The parties ask Fair Work Australia to make a decision as to the applicability of clause 1.5 - ‘Workplace Change & Flexibilities’ of the Ergon Energy Union Collective Agreement 2008 with respect to Schedule 6, clause 2.2 - ‘Shift Rostering’.
In particular, the parties seek a decision as to whether the capacity to change the start and finish times within the spread of ordinary hours of the 2008 Agreement, as provided for by clause 1.5, allows Ergon Energy to change the start and finish times and/or introduce a new shift in the Operational Control Centre roster without 60% agreement of affected employees.”
[7] It was also agreed that the ASU would have carriage of the proceedings as the applicant. Directions were issued which required submissions and statements of witnesses upon which the parties intended to call at the hearing of this matter. In addition to its outline of submissions, the ASU filed witness statements for two witnesses. Ergon did not file witness statements.
[8] At the commencement of the hearing, the parties advised that the witnesses were not required for cross-examination, and that they had determined in discussions between themselves, not to have the witnesses present at the hearing.
3. THE AGREEMENT PROVISIONS IN DISPUTE
[9] The proceedings centred on clauses 1.5 and clause 2.2 of Schedule 6 of the 2008 Agreement.
Clause 1.5 of the 2008 Agreement provides as follows:
1.5 WORKPLACE CHANGE AND FLEXIBILITIES
The Parties recognise that change may occur during the life of this Agreement. In addition to the provisions of this clause, the parties will maintain the consultative mechanisms as outlined in this Agreement to help facilitate change.
The parties will address the introduction of new working arrangements which require the variation of conditions of employment as contained in this Agreement, by application of the following principles and process:
The Parties acknowledge that there is a business requirement to have flexibility, responsiveness and mobility of its work force to meet customer needs and operational requirements. At times these challenges may need changes to employee working conditions. Where changes are required to employee’s current conditions, these will be addressed in a consultative and cooperative manner with employees directly affected.
Consultation will occur with all directly affected employee/s and their nominated employee representatives.
Where consultation has been unable to resolve the matter the following process will apply:
• The directly affected employee/s and their nominated representatives will negotiate and develop a suitable proposal;
• Prior to implementation of the proposal, agreement must be reached with at least 60% of the directly affected employees;
• Any variation of conditions of employment contained in this Agreement will have no application until lodged in accordance with the Act.
Where the Parties agree, this process may be applied to other workplace change initiatives outlined in this Agreement that would directly affect employees in terms of conditions, entitlements and career opportunities.
Nothing in the process outlined above limits or restricts Ergon Energy’s capacity to impose on any employee no more than twice in any calendar year the following:
• Change of start and finish times within the spread of ordinary hours of this Agreement;
• The implementation of short term shift arrangement; and
• Where an employee is allocated to a new work group, the individual’s Rostered Day Off (RDO) may be changed from Monday to Friday or vice versa to meet the new work groupRDO schedule;
The above changes shall be subject to consultation with those directly affected and notice of one (1) month has been given of the implementation date. A shorter implementation date may occur where mutually agreed by the employees involved.
As part of a process of improvement in productivity and efficiency, discussion will take place to provide more flexible working arrangements, improvement in the quality of working life, enhancement of skills, training and job satisfaction and to encourage consultative mechanisms across the workplace.
The consultative processes may provide an appropriate mechanism for consideration of matters relevant to this clause. Nominated Employee Representatives at the place of work may be involved in such discussions.
The variation of conditions of employment as contained in this Agreement will have no application until varied in accordance with the requirements of the Workplace Relations Act 1996.
Schedule 6 of the 2008 Agreement applies by virtue of Part 1 of that Schedule, to employees located at Ergon Energy Operational Control Centre North (Townsville) and South (Rockhampton) working continuous shift work in the classifications of System Operator Grade 1 to Grade 5 employed in the roles of Network Controller or Network Operations Officer. Clause 2.2 of Schedule 6 of the 2008 Agreement is in the following terms:
2.2 SHIFT ROSTERING
Employees accept that there is a requirement to maintain continuous 24 hours a day, seven (7) days per week shift coverage within Ergon Energy Control Centres.
Employees covered by this Agreement will work in accordance with a Control Centre Roster which has been agreed to by 60% of affected employees.
Roster attendances will be of 8.05 hours duration, nominally described as day, afternoon and night shift if applicable or as mutually agreed by the parties.
For the purposes of this clause the following definitions apply:
• “Day Shift” will normally mean any shift worked between the hours of 6 a.m. and 6 p.m.
• “Afternoon Shift” will normally mean any shift finishing after 6 p.m. and at or before midnight, and
• “Night Shift” will normally mean any shift finishing after midnight and at or before 8 a.m.
• Ergon Energy Union Collective Agreement 2008 123
Network Operation Officers required to act as Network Controller’s for periods of one shift or greater will be paid the Network Controller classification rate including the Network Controller loadings for the duration of the higher duties.
4. BACKGROUND TO THE DISPUTE
[10] The function of the Operational Control Centre in which the dispute arose is to monitor the status of electrical assets, initiate responses to planned and unplanned outages and to manage access to ensure that work performed on assets is carried out safely and efficiently in order to meet the operational requirements of Ergon. There are Operational Control Centres located in Townsville (OCC(N)) and Rockhampton (OCC(S)). There is an operational requirement for both OCC(N) and OCC(S) to maintain continuous 24 hours a day, seven days per week shift coverage.
[11] At the point the dispute arose, the OCC(S) operated a continuous shift roster over 24 hours per day, 7 days per week. 1 The configuration of shifts in the OCC(S) is as follows:
• 6.30 am - 2.30 pm (day shift)
• 2.30 pm - 10.30 pm (afternoon shift)
• 10.30 pm - 6.30 am (night shift).
[12] OCC(S) employees not rostered to an operational desk during the abovementioned shift times, are rostered to a “Switching Sheet” shift from 6.30 am to 2.30 pm, to undertake switching sheet preparation and to support on-desk staff with other workload where required. Ergon seeks to change the start and finish time of the switching sheet shift so that it runs from 10.00 am to 6.00 pm. On 9 October 2009, Ergon wrote to Operational Control Centre employees in the following terms:
“As you are aware, a review has been undertaken to ensure standardisation of process and rosters within the OCC.
As a result of this review, the start and finish time for the SS shift in OCC(S) will change to 10.00 am to 6.00 pm and the ‘on call’ requirement will be implemented into the OCC(S) rosters as per the Guidelines.
The change of the start and finish times for the SS shift is in accordance with clause 1.5 of the Ergon Energy Union Collective Agreement 2008 and will take effect on Monday, 16 November 2009.” 2
[13] On 20 October 2009, the ASU corresponded with Ergon stating that any changes to the current OCC(S) must be made in accordance with clause 2.2 of Schedule 6 to the Agreement, and agreed to by 60% of affected employees. The ASU also stated in its correspondence that Ergon had not attempted to seek agreement prior to advising that the changes would be implemented, and sought a meeting to resolve the matter. 3
[14] On 14 April 2010 Ergon corresponded with the ASU to confirm the decision to implement the proposed change to the OCC(S) switching sheet roster to 10.00 am to 6.00 pm, with effect from Monday 17 May 2010. The proposal has not been implemented due to the ASU putting the matter into dispute, requiring the maintenance of the status quo as provided in clause 2.1.3 of the Agreement.
[15] Ergon submitted, without contradiction from the ASU, that its proposed change had been implemented in the OCC(N), and that it sought consistency between the two Control Centres.
5. WITNESS STATEMENTS AND SUBMISSIONS FOR THE ASU
5.1 ASU Witness Statements
[16] Witness statements were provided on behalf of the ASU by:
• Peter John Hegarty, Network Co-ordinator, OCC(S); and
• Lindsay Stuart Dean, Network Co-ordinatory OCC(S).
[17] Mr Hegarty has been employed by Ergon since 1984 and was appointed to his current role in 2006. According to Mr Hegarty, the first Control Centre Agreement came into effect in 1997, and provided for an annualised salary. This was referred to as the 1997 Control Centre Annualised Salary Agreement. In 2001, the Ergon Energy 2001 Certified Agreement (the 2001 Agreement) commenced. Clause 5.1 of the 2001 Agreement provided that:
“In order to meet operational and work requirements, the daily spread of hours for day working employees, provided for in the award on an ordinary work day (6.00 am to 6.30 pm Monday to Friday, may be increased by mutual agreement to an additional one hour at the commencement or finish of the ordinary work day.” 4
[18] Mr Hegarty said that the mutual agreement referred to in this provision was required to be implemented in accordance with clause 1.5 Workplace Change and Flexibility of the 2001 Agreement, which provided as follows:
“1.5 Workplace Change and Flexibility
The parties acknowledge that there is an ongoing review of working arrangements and will address such issues in a consultative and cooperative manner through the following processes:
a) Consultation with all directly affected staff, their relevant union representatives and relevant state union officials;
b) The parties to this Agreement and employees directly involved will negotiate, develop and agree a suitable proposal;
c) Achieve agreement from 60% of employees directly affected;
d) Advise the relevant unions and obtain approval in writing;
e) Proposal may then be implemented.
Provided that proposals which require the variation of conditions of employment as contained in the ETGS award or this certified agreement any such change shall have no application until the Queensland Industrial Relations Commission has certified the proposed changes in accordance with Section 169 of the Industrial Relations Act 1999.
This process may also be applied to other workplace change initiatives outlined in this agreement that would directly effect employees in terms of conditions, entitlements and career opportunities.” 5
[19] According to Mr Hegarty, the 1997 Control Centre Annualised Salary Agreement remained in place until being superseded by the 2002 Control Centre Certified Agreement. This was the first common agreement between the Rockhampton and Townsville Control Centres, and was interpreted in conjunction with the 2001 Agreement. Mr Hegarty said that the 2002 Control Centre Certified Agreement provided that: “Employees covered by this Agreement will work in accordance with a roster that has been agreed to by the majority of affected employees.” Mr Hegarty also said that this clause was intended to differentiate between control centre staff engaged on shift work and the day work employees identified under clause 5.1 of the 2001 Agreement. 6
[20] In the 2005 Control Centre Certified Agreement, the wording requiring a majority of affected employees to agree to a roster was changed so that 60% of employees were required to agree to a roster, and this was maintained in Schedule 6 of the 2008 Agreement. The Ergon Energy Certified Agreement 2001 was appended to Mr Hegarty’s witness statement. The 1997, 2002 and 2005 Control Centre Agreements were not in evidence before the Tribunal.
[21] Mr Hegarty said that his understanding of the wording of clause 2.2 of Schedule 6 of the 2008 Agreement is that the Control Centre roster must be agreed by 60% of staff, and that this was intended to provide certainty to controllers that the roster would not change without such agreement. Mr Hegarty asserted that it was only recently that Ergon had interpreted this provision differently, and that before any new roster/template had ever been implemented approval had been obtained from at least 60% of affected operators. This process had been followed in the Northern Control Centre when implementing roster changes.
[22] The 60% requirement was said by Mr Hegarty to be a safeguard to ensure that control centre operators can safely manage the operational requirements for the control centre, taking into account fatigue, stress, work life balance and workload peaks. The roster system was previously managed by a Roster Administrator, and Mr Hegarty took over this role in 1999 and undertook it in a sole capacity until 2004, when he shared it with Mr Colin Clarke and was assisted by Mr Lindsay Dean. The role of the Roster Administrator was to ensure shift coverage requirements were met, penalties were not exceeded and all leave arrangements were accommodated.
[23] During the period from 2004 until 2008, the Control Centre staff grew from 8 to 32 members and it was Mr Hegarty’s responsibility to generate new rosters as the workgroup grew. According to Mr Hegarty, any changes to the roster were agreed to by a majority of employees, and this was done informally through an email. In 2008, Ergon Energy management took over responsibility for the Control Centre Roster. Changes to the roster continued to be agreed by a majority of employees, with agreement being recorded via email. The proposed change subject of the present dispute, is the first time that Ergon attempted to change the roster without the agreement of the majority of employees. It was not intended during the negotiation of the 2008 Agreement, to change the provision in relation to roster changes, and previous practice was to be maintained.
[24] Mr Dean has been employed by Ergon since 1987 and has been in his current role since 2006. Mr Dean began assisting the Roster Administrator in 2004, at that time Mr Hegarty and Mr Colin Clark. Staff numbers in the Control Centre grew from 8 to 32 in the period from 2004 to 2008. It was the responsibility of the Roster Administrator to generate new rosters. Whenever a new roster was generated, it would be agreed by Network Controllers and Network Co-ordinators prior to being implemented, by a system of email voting. It was Mr Dean’s understanding that this was consistent with applicable industrial instruments. In 2008 Ergon took control of the roster, and managers were responsible for managing the roster system.
[25] According to Mr Dean, Ergon first tried to introduce the roster change subject of this dispute in 2006. This was not accepted by Control Centre employees. Mr Dean attended a meeting with Ergon and the ASU to discuss the proposed roster change in September 2007. At that meeting the ASU advised Ergon that the proposal was not acceptable and proposed an alternative system to address Ergon’s concerns. That proposal was not accepted by Ergon. In approximately January 2008, a template roster was voted on by all staff, and was not accepted.
[26] Subsequently, in approximately January 2008, the current roster was negotiated between management and representatives of the Control Centre. Mr Dean was involved in this process. The roster was voted on by all employees and accepted. In mid 2009, a working group was established to determine a standardisation of rosters practices between the two Ergon Control Centres. The standard was not accepted by all staff, as it included different start and finish times to the current roster arrangements.
[27] In October 2009, Control Centre employees were advised by Ergon that the proposed change to the roster subject of this dispute would be implemented with four weeks notice. The ASU subsequently notified Ergon that its members were in dispute in accordance with the 2008 Agreement. According to Mr Dean, at all times previously any change to the roster has been subject to a vote of all employees.
5.2 ASU Submissions
[28] It is submitted for the ASU that clause 2.2 of Schedule 6 of the 2008 Agreement provides the relevant terms and conditions for employees engaged in the OCC(S) and the OCC(N) in the classifications of System Operators 1-5, and is the only provision of the 2008 Agreement that provides for shift rostering for employees engaged in Operational Control Centres. Any change to the roster can only be implemented with the agreement of at least 60% of affected employees.
[29] The ASU further submits that the evidence of Mr Hegarty and Mr Dean indicates that any previous changes made to the roster configuration have been agreed to by at least 60% of affected employees before changes to the roster could be implemented. In relation to clause 1.5 of the Agreement, the ASU submits that this clause is not applicable in this instance as Schedule 6, clause 2.2 provides that employees in Operations Control Centres will work to a roster agreed by 60% of affected employees. The proposed changes sought by Ergon will run parallel to the exiting shift rotations, thus demonstrating the introduction of an additional shift rather than a change to start and finish times of an existing shift rotation. Accordingly, the ASU submits that FWA should answer the question for arbitration in the negative.
6. SUBMISSIONS FOR ERGON
[30] In seeking to implement a change to start and finish times in the Operations Control Centres Ergon relies on clause 1.5 of the 2008 Agreement. According to Ergon this clause preserves its discretion to alter the start and finish times within the spread of ordinary hours for all employees covered by the 2008 Agreement. Clause 1.5 applies equally to all employees, and the capacity to change the start and finish time within the spread of ordinary hours includes a change to the actual start and finish time within the spread of hours for a “day shift” as prescribed by Schedule 6, clause 2.2 of the 2008 Agreement. In this regard, Ergon contends that Schedule 6 of the 2008 Agreement also deals with the spread of ordinary hours for shift work.
[31] Ergon contends that it consulted with nominated representatives and provided formal notice to employees of the change to the start and finish time of the “Switching Sheet” shift. The change is said to provide Ergon with the ability to offer greater support to the Operating Control Centres by matching historic workload patterns with resources to improve response and resourcing, and to manage operational costs to meet regulatory period demands for Ergon Energy and customers.
[32] The proposed change provides a roster rotation to be shared between each category of Control Centre employee. As it currently stands, this would mean approximately one week in nine, eleven or twelve weeks, that an employee would be required to work the proposed alternate day shift hours, subject to the classification of employees.
[33] Ergon submits that the 2008 Agreement provides for terms and conditions of employment for all Ergon Energy employees, excluding employees paid a salary which exceeds 115% of the rate prescribed by salary point 16.5. As part of the negotiations for the 2008 Agreement, the terms and conditions of the previous Ergon Energy Control Centre Agreement 2006 were incorporated into Schedule 6. That Schedule applies to all employees located at OCC(S) and OCC(N) who work continuous shift work in the classifications of System Operator Grade 1 to Grade 5, employed in the roles of Network Controller or Network Operations Officer.
[34] OCC(N) currently operates a 10.00 am to 6.00 pm arrangement, and a similar arrangement in the OCC(S) will facilitate the standardisation of OCC work practices and rosters, and the identification and implementation of efficiencies in the operation of both Centres.
[35] According to Ergon, a shift roster is a mechanism for rostering employees on a sequence of shifts to facilitate staff resourcing to meet the operational requirements of Ergon Energy across the span of shifts. These shifts are normally arranged so as to form a roster pattern on a recurring cycle, and it is this roster cycle which is subject to 60% agreement by OCC(S) employees, and which meets operational requirements, fatigue management, efficiency, standardisation and work life balance.
[36] Ergon submits that the 60% agreement factor was determined by the framers of the 2008 Agreement to clarify what a valid majority would constitute for the purposes of the Agreement in relation to frequency and roster cycle. At no time has there been discussion regarding the 60% requirement applying to start and finish times for shifts within the roster cycle.
[37] Ergon may require a change to employees’ start and finish times to meet business needs including operational and customer service requirements. The change to the start and finish times proposed in the OCC(S) does no more than implement the accepted industrial practice of “manning to workload” to meet Ergon Energy’s operational requirements.
[38] According to Ergon, this is consistent with the employer’s ability to exercise managerial prerogative, whereby Ergon has the right to manage its business as it determines necessary, unless in doing so employees are unreasonably subjected to a condition or circumstance which would be prejudicial to them.
[39] The proposed change to the start and finish time does not alter the normal day shift hours, being any shift worked between the hours of 6.00 am and 6.00 pm as provided for in clause 2.2 of Schedule 6, and as agreed between the parties. Ergon submits that Schedule 6 is to be read subject to clause 1.5. The Agreement must be construed as a whole and a clause should not be viewed in isolation. The proposed change to the “Switching Sheet” shift is in accordance with clause 1.5 of the Agreement which provides Ergon with the capacity to impose on any employee a change of start and finish times within the spread of ordinary hours of the Agreement subject to consultation and with a minimum of one month’s notice. In summary Ergon submits that:
• Clause 1.5 of the 2008 Agreement specifically preserves the capacity to change the start and finish time for any employee covered by the Agreement;
• Clause 1.5 is unambiguous and is inclusive of all employees covered by the Agreement;
• The framers’ intent, as well as the natural, grammatical and ordinary meaning of the words must be considered by FWA;
• The proposal does no more than change the start and finish times within the spread of hours of a day shift and does not change the actual roster;
• The required shift and roster framework continues to be by definition, a day shift, being any shift worked between the hours of 6.00 am and 6.00 pm;
• FWA should find, in the circumstances outlined by Ergon, that clause 1.5 of the 2008 Agreement provides for Ergon the discretion to change the start and finish times for all employees, which includes changing the start and finish time of OCC employees who work a continuous shift roster.
[40] In oral submissions, Ergon said that it had not previously attempted to change the start and finish times for shifts. Previous changes implemented with the agreement of 60% of employees had involved changes to roster patterns such as the number of night, afternoon and day shifts and days off in a roster cycle or flows from day shift to night shift. Employees would be required to vote on changes to the number of day, night or afternoon shifts they work in a row and whether days off were followed by afternoon or night shift. However, no such agreement was required to change the start of finish time of a shift within the defined spread in Schedule 6 of the Agreement.
CONCLUSIONS
[41] There are a number of principles in relation to the interpretation of industrial instruments which are relevant in the present case. These were set out by Deputy President Ives in The Australian Workers’ Union v Visy Board Pty Ltd t/as Visy Specialities 7 (Visy) as follows:
• If the terms of an industrial instrument are clear and unambiguous, then the industrial instrument must be interpreted in accordance with that clear and unambiguous meaning; 8
• The words used in an industrial instrument should not be interpreted in a strict technical fashion, because those who framed the industrial instrument are often non-lawyers drafting words in the context of custom and practice in an industry or particular enterprise; 9
• The words used in an industrial instrument should be interpreted within its context, that is, the meaning of particular words should be read in the context of the industrial instrument as a whole 10 and in the context of the clause/section in which they fall;11
• The court or tribunal should strive to give effect to the intention of the authority or tribunal (and presumably the parties in the case of an agreement) provided that the words appearing in the instrument can reasonably be interpreted to mean that which the authority/tribunal/parties intended them to mean; 12 and
• Recourse by the court or Tribunal to extrinsic material in the interpretation of an industrial instrument is not dependent on the existence of ambiguity. 13
[42] Evidence about the negotiations for an industrial instrument, is relevant to the extent that it establishes relevant background facts that go to the context or subject matter of the negotiations. Evidence about the actual intentions and expectations of negotiating parties is not admissible as an aid to the construction of industrial instruments, on the basis that it reveals the terms of the agreement they hoped to make, and those intentions and expectations are merged into the final agreement. 14:
[43] In relation to the context of expressions used in industrial instruments, Justice Burchett, sitting with the Full Court of the Federal Court, said in Short v Hercus: 15
“The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used.” 16
[44] In the present case there is minimal evidence about the negotiations which resulted in the disputed clauses of the 2008 Agreement, or about the intention of the parties to those negotiations. There is some extrinsic material in the form of earlier versions of the Agreement, and the Award which the 2008 Agreement is intended to over-ride. This material is referred to in clause 1.1 of the 2008 Agreement.
[45] Applying the principles relating to the construction of industrial instruments, to the extent that they are relevant in the present case, I have reached the following conclusions. The disputed provision of clause 1.5 of the 2008 Agreement gives Ergon the capacity to impose on employees, no more than twice in any year:
“Change of start and finish times within the spread of ordinary hours of this Agreement.”
[46] In my view this provision applies to the spread of hours for day working employees and not to shift workers. I base this view on the following considerations. The only reference to the term “spread of hours” is found in Part 8 of the Agreement which deals with hours of work for day work employees. Such a reference is found in a number of clauses in Part 8 of the Agreement, and the relevant provisions allow for the spread of hours from 6.00 am to 6.30 pm to be increased by mutual agreement to an additional one hour at the commencement or finish of the work day. See clauses 8.1; 8.3; 8.7.1 and 8.7.2 of the Agreement.
[47] There is no reference to the term “spread of hours” in Part 9 of the Agreement dealing with shift work. This is consistent with the concept of “spread of hours” as it was used in the 2001 Agreement in clause 5.1, which makes it clear that the 6.00 am to 6.30 pm spread of hours Monday to Friday, is applicable to day work employees, and provides the same flexibility as is found in the 2008 Agreement with respect to increasing the spread by one hour at the commencement or finish of the working day.
[48] The Electricity Generation, Transmission and Supply Award - State (referred to in clause 1.1 of the 2008 Agreement) at clause 6.1.1 also makes it clear that the concept of “spread of hours” is limited to day work employees by specifically excluding shift workers subject to clause 6.5 of the Award. Although that Award is over-ridden by the 2008 Agreement, it provides context for the term “spread of hours”.
[49] The significance of a spread of hours for day workers is that work performed outside the stipulated spread is required to be paid for at overtime rates, except where it is increased by mutual agreement, to the extent allowed. This is distinct from the provisions relating to shift workers. Ordinary hours for shift workers are determined by reference to a maximum number of hours in a roster operating over a defined period (roster cycle) or in a shift within the period. Clause 9.3 of the Agreement provides the parameters for the roster and essentially requires that the average of hours worked in any agreed roster period not exceed 36 ¼. Overtime is payable for work in excess of or outside the maximum number of hours for a shift or a roster cycle.
[50] Shift work may be continuous in that it covers 24 hours per day 7 days per week, or non continuous in that it is worked over a period other than 24 hours per day 7 days per week. The definitions for day shift, afternoon shift and night shift found in clause 9.2 of the Agreement do not establish a spread of hours for the purposes of distinguishing ordinary time from overtime. Rather, those definitions establish when ordinary shifts will attract penalties on the basis of the hours during which they are worked.
[51] The reference in clause 1.5 to no restrictions being placed on Ergon’s capacity to impose on any employee twice in any calendar year the implementation of a short term shift arrangement, also underscores the fact that the immediately preceding provision allowing for a change to start and finish times within the spread of ordinary hours to be imposed, is relevant to day work employees only.
[52] The former provision gives flexibility in relation to shift work, and the latter in relation to day work. Thus Ergon would have the right to impose the change it seeks as a short term shift arrangement as provided in clause 1.5. Ergon does not however have the right to impose such a change to the OCC(S) roster under the provision dealing with changes to start and finish times within the ordinary spread of hours.
[53] There is also no reference to the term “spread of ordinary hours” in Schedule 6 of the Agreement. This is because such a reference is not relevant in circumstances where the Schedule applies only to employees in certain classifications working continuous shift work. The definitions of day shift, afternoon shift and night shift in clause 2.2 of Schedule 6 are not intended to define a spread between which ordinary hours may be worked. As is the case in Part 9 of the Agreement, those definitions simply relate to the payment of shift allowances for ordinary hours worked within the period as defined. The use of the term “normally” in the definitions in clause 2.2 of Schedule 6 does not alter the effect of the definitions.
[54] In essence, all 24 hours of a day, 7 days per week are ordinary hours for continuous shift workers. Such employees are only entitled to overtime when they work in excess of a maximum number of hours stipulated in the Schedule. These hours are referred to as “additional hours” and are paid for at overtime rates as provided in the Schedule.
[55] I am also of the view that the term “roster” as used in clause 2.2 of Schedule 6, should be given its ordinary meaning. Although the term “roster” is not defined in the 2008 Agreement or in Schedule 6, the ordinary meaning of that term is an established list or program detailing a period of time over which a sequence of work is to be performed before it starts again (the roster cycle); the starting and finishing times of shifts to be worked over that roster cycle; and identification of who will work each shift either on the basis of individuals or groups to which they are allocated (sometimes referred to as panels).
[56] It is essential for the operation of a roster that the starting and finishing times of shifts which form part of the roster cycle are identified, so that persons who will be working the roster are able to ascertain the hours at which they are required to start and finish work. If the program or list does not include the start and finish times of shifts, it is not a roster within the ordinary meaning of that term. Acceptance of the argument advanced by Ergon requires that the term “roster” is limited to roster patterns and the flow of shifts. Such an interpretation requires the term “roster” to be read down and I can see no basis for doing so. The interpretation I favour gives the term “roster” as it is used in clause 2.2 of Schedule 6 of the Agreement, its ordinary meaning. The effect of clause 2.2 of the Schedule 6 is that in order to change the start and finish times of shifts within the roster, or to introduce a new shift, Ergon is required to obtain the agreement of 60% of affected employees.
[57] The provisions of Part 8 of the 2008 Agreement dealing with the establishment of ordinary hours of work for day workers generally require mutual agreement. In no case under Part 8, can a change to the start and finish times within the spread of ordinary hours for day work employees, be implemented other than by mutual agreement between the parties at a particular place of work. The disputed provision in clause 1.5 operates with respect to clause 8 to allow Ergon to impose on day work employees a change to the start and finish times within the spread of ordinary hours twice in any calendar year, where mutual agreement is not reached. A change to the actual spread of ordinary working hours would require a variation to the Agreement as provided in clause 1.5.
[58] This interpretation is consistent with the principle of statutory interpretation to the effect that a general provision cannot derogate from a specific provision where there is a conflict between those provisions. Clause 2.2 of Schedule 6 is a specific provision applying to employees located at the OCC(N) and the OCC(S) and working continuous shift work in the classifications of System Operator Grade 1 to Grade 5 employed in the roles of Network Controller or Network Operations Officer. Clause 2.2 of Schedule 6 specifically requires that employees covered by the Agreement and subject to the Schedule, will work in accordance with a roster agreed to by 60% of affected employees. For the reasons set out above, a roster includes starting and finishing times for shifts. Clause 1.5 of the Agreement is a general provision and gives way to the specific provisions of clause 2.2 of Schedule 6 requiring 60% of affected employees to agree to rosters, or changes to rosters.
[59] This interpretation ensures that a general provision of the Agreement (clause 1.5) cannot be used to achieve what is not allowed under a specific provision (clause 2.2 of Schedule 6) by allowing changes to rosters without the agreement of 60% of affected employees. It also ensures that all the disputed clauses of the Agreement are able to operate.
[60] I also note the uncontested statement of Mr Hegarty that the process of obtaining 60% agreement of affected employees to the change implemented in the OCC(N) was followed when the roster change subject of these proceedings was implemented in the OCC(N). Ergon did not cross-examine Mr Hegarty and called no evidence to rebut this statement. I can only assume, on the basis that this change in the OCC(N) roster is not in dispute in these proceedings, that it was agreed with affected employees.
[61] For these reasons, I have concluded that the question for arbitration should be answered as follows:
Question:
“The parties ask Fair Work Australia to make a decision as to the applicability of clause 1.5 - ‘Workplace Change & Flexibilities’ of the Ergon Energy Union Collective Agreement 2008 with respect to Schedule 6, clause 2.2 - ‘Shift Rostering’.
In particular, the parties seek a decision as to whether the capacity to change the start and finish times within the spread of ordinary hours of the 2008 Agreement, as provided for by clause 1.5, allows Ergon Energy to change the start and finish times and/or introduce a new shift in the Operational Control Centre roster without 60% agreement of affected employees.”
Answer:
The capacity to change the start and finish times within the spread of ordinary hours of the 2008 Agreement, as provided for by clause 1.5, does not allow Ergon Energy to change the start and finish times and/or introduce a new shift in the Operational Control Centre roster without 60% agreement of affected employees.
COMMISSIONER
Appearances:
R Smith for the Australian Municipal, Administrative, Clerical and Services Union
G Harris for Ergon Energy Corporation Limited
Hearing details:
2010.
Townsville:
25 October.
1 A “Continuous Shift Arrangement” as defined in clause 9.2 of the Agreement.
2 Appendix “EE 1” to the Ergon Submission.
3 Appendix “EE 2” to the Ergon Submission
4 Appendix “PJH1” to the witness statement of Peter John Hegarty.
5 Statement of P Hegarty “PJH 1”.
6 Appendix “PJH1” to the witness statement of Peter John Hegarty.
7 [PR963418] at paragraph 14(d).
8 Ibid at [12] citing Re Clothing Trades Award (1950) 68 CAR 597.
9 Ibid at [12] citing Bond & Co Ltd (in liquidation) v McKenzie (1929) 28 AR 499.
10 Ibid at [12] citing Australian Workers’ Union v Abbey (1939) 40 CAR 494.
11 Ibid at [12] citing Avondale Motors (Parts) Pty Ltd v Federal Commissioner of Taxation (1971) 44 ALJR 280 at 283.
12 Ibid at [12] citing Australian Timber Workers’ Union v W Angliss and Co Pty Ltd (1924) 19 CAR 172.
13 Australian Municipal, Administrative, Clerical & Services Union v Commonwealth of Australia (1998) 82 FCR 175; 80 IR 345.
14 Codelpha Construction v State Rail Authority (NSW) (1982) 149 CLR 337 at 347 – 353 per Mason J.
15 (1992-193) 46 IR 128
16 Ibid at 134. See also Australian Municipal, Administrative, Clerical and Services Union v The Treasurer Cth and Others (1998) 82 FCR 175; 80 IR 345 per Marshall J.
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