Australian Municipal, Administrative, Clerical and Services Union v Qantas Airways Limited

[2014] FWC 3612

[2014] FWC 3612

FAIR WORK COMMISSION

DECISION

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

Australian Municipal, Administrative, Clerical and Services Union
v
Qantas Airways Limited
(C2013/6951)

COMMISSIONER CLOGHAN PERTH, 11 JUNE 2014

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

[1] On 10 December 2013, the Australian Municipal, Administrative Clerical and Services Union (Applicant or ASU) made application for the Fair Work Commission (Commission), to deal with a dispute in accordance with a Dispute Settlement Procedure (DSP).

[2] The application has been made in accordance with s.739 of the Fair Work Act 2009 (FW Act).

[3] The ASU is in dispute with Qantas Airways Limited (Employer). The DSP is contained in the Australian Services Union (Qantas Airways Limited) Agreement 10 (EBA 10).

[4] A conciliation conference was held on 8 January 2014. The ASU and the Employer were unable to reach agreement on a resolution to the dispute. I requested the parties to reach agreement on the question(s) to be determined at arbitration. The parties were unable to reach agreement on the question(s) for determination. The Employer indicated at conciliation that it reserved its rights in relation to any jurisdictional objection.

[5] It is not in dispute that the particular event leading to this application occurred on 11 October 2013. At that time, the employee involved in the dispute, Ms Gartside, was covered by the Australian Services Union (Qantas Airways Limited) Agreement 9 (EBA 9). EBA 10 became operative from 6 November 2013. Accordingly, Qantas could raise the jurisdictional objection that the dispute on 11 October 2013 related to EBA 9 and there is no dispute pursuant to EBA 10 to enliven the Commission’s jurisdiction to hear and determine this application.

[6] However, Qantas acknowledged that the clauses in argument between the parties are common to both EBA 9 and EBA 10 and the likelihood that a similar dispute would arise during the term of EBA 10. In these circumstances, Qantas did not press its jurisdictional objection but with two caveats. Firstly, that the application be contested in precisely the same circumstances which arose on 11 October 2013 and summarised in the agreed statement of facts. Secondly, that the Commission has no jurisdiction to award the relief sought in respect to Ms Gartside for the particular event on 11 October 2013. The hearing proceeded on this basis.

[7] This is my determination and reasons for determination.

RELEVANT BACKGROUND

[8] Ms Gartside is employed by Qantas on a rotating shift roster.

[9] Ms Gartside is employed to work two 9.5 hour shifts per week.

[10] On 11 October 2013, Ms Gartside attended a roster committee meeting after she had already completed her two ordinary shifts for that week.

[11] Ms Gartside was paid four hours at single time for attending the roster committee meeting on 11 October 2013.

[12] The ASU, on behalf of Ms Gartside, claim that she worked on a rostered day off on 11 October 2013, and consequently, is entitled to be paid four hours overtime at double time in accordance with subclause 44.2.1 of EBA 9.

[13] Qantas resists the ASU claim on the basis that subclause 18.5 of EBA 9 applies to Ms Gartside when working overtime.

[14] Accordingly, the construction issue raised in this dispute is the meaning and application of subclauses 18.5 and 44.2.1 of the enterprise agreement.

[15] For ease of reading, the remainder of this determination, I will refer only to subclauses 18.5 and 14.2.1 as being in EBA 10.

RELEVANT CLAUSES IN EBA 10 IN DISPUTE BETWEEN THE PARTIES

[16] ..........

“18.5 Overtime

18.5.1 Where a part-time employee is required to work additional hours on a day and the number of hours worked in total does not exceed 7.6 hours, all hours will be paid at single time, provided that any hours in excess of 7.6 hours shall be paid at the normal overtime rate.

18.5.2(a) All time worked in excess of 7.6 hours per day, 10 days per fortnight, 1560 hours in the first year following the date of the coming into force of this provision, or 1410 ordinary hours in any successive year, shall be overtime and paid at overtime rates specified in this EBA 10. This shall not include hours worked on secondment to a full-time position.

(b) Provided that where a part-time employee’s hours of work are designated in accordance to subclause 18.1.1 (b) hereof, overtime will be paid for any hours worked in excessive of 30 per week.”

“44.2 Payment for Working Overtime - shiftwork

44.2.1 Airline Officers Only

Except as provided in clause 44.9.1, subclause 44.10.1, clause 45.1, clause 36 and clause 53.5, all time worked:

(a) in excess or outside ordinary hours; or

(b) on a shift other than a rostered shift

must be paid at the rate of double time, unless the time is worked for the purpose of effecting the customary rotation of shifts.

...”

CONSIDERATION

Interpretation of Enterprise Agreements

[17] The Full Bench in Cape Australia Holdings Pty Ltd T/A Total Corrosion Control Pty Ltd v Construction, Forestry, Mining and Energy Union [2012] FWAFB 3994 (Cape Australia Holdings) set out under the heading “The Interpretation of Enterprise Agreements” the following:

“[7] As to the general approach to the construction of enterprise agreements the observations of French J, as he then was, in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (Wanneroo) are apposite:

“[53] The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘...the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘....ideas that gave rise to an expression in a document from which it has been taken’ - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services Union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J).”

[8] While his Honour’s observations were made in the context of interpreting an award the same principles apply to the interpretation of enterprise agreements. For example, similar observations were made by their Honours Gummow, Hayne and Heydon JJ in Amcor v CFMEU:

“Clause 55.1.1 must be read in context. It is necessary, therefore, to have regard not only to the text of cl 55.1.1, but also to a number of other matters: first, the other provisions made by cl 55; secondly, the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it; and, thirdly, the legislative background against which the Agreement was made and in which it was to operate.”

[9] The fact that the instrument being construed is an enterprise agreement is itself an important contextual consideration. As French J observed in Wanneroo, at paragraph [57]:

“It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities - City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned - see eg GeoA Bond and Co. Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):

“Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.”

[10] None of these principles were matters of contention in these proceedings and we have applied them in the determination of the appeal. The issue on appeal is the application of the principles to clause 5 of the Total Corrosion Control Agreement.”

[18] I have adopted the approach of the Full Bench in Cape Australia Holdings in this application.

[19] Part 4 of EBA 10 is entitled, “Employer and Employee Duties, Types of Employment and Related Arrangements”. Clause 18 in Part 4 is entitled “Part-Time Employment - Airline Officers Only”.

[20] Clause 18 of EBA 10 commences at subclause 18.1.1 with the ordinary hours of work for part-time employees and proceeds to set out: the necessity of reaching agreement on how those hours are worked (on a variable or fixed arrangement); whether the part-time employment arrangement is on an indefinite or fixed term basis; an annual review of hours worked by a part-time employee for the purposes of conversion to a full-time employee; overtime for part-time employees; salary; annual leave/long service leave; personal leave; meal breaks; travel concessions and a myriad of other employment provisions related to part-time employees.

[21] Part 6 of EBA 10 is entitled “Hours of Work, Shiftwork, Meal Breaks and Overtime” and begins at Clause 41.

[22] Similar to the construction in Clause 18, subclause 41.1.1 of EBA 10 commences with “Hours of Duty - Daywork and Shiftwork”. Subclause 41.1.1 sets out:

“ordinary hours of work will be an average of 38 hours, within a work cycle not exceeding 28 consecutive days.”

[23] Clause 41 of EBA 10 proceeds to set out for employees working an average of 38 hours per week, their ordinary hours of work, shift work arrangements, penalty rates, shift loadings and rosters.

[24] Clause 44 which is also within Part 6 of EBA 10 is entitled “Overtime”. The overtime provisions for employees working an average of 38 hours per week are set out in subclause 44.2.1. The overtime provisions in subclause 44.2.1 are constructed significantly different to the overtime provisions for part-time employees in Clause 18 of EBA 10.

[25] The manner in which ordinary hours of work for full-time seven day shift workers vary. For example, those employees who work eight hour shifts can be required to work no more than eight hours in any one day, 48 hours in any one week or 88 hours in 14 consecutive days.

[26] Full-time employees who work shifts of 9.5 hours duration, for example, can only work one shift per day, five shifts in every seven consecutive days or nine shifts in 14 consecutive days.

[27] Subclause 44.2.1 of EBA 10 (excluding provisions not relevant to this application) provides for overtime at double time on a “shift” other than the employees rostered shift. This simply means that if a full-time employee has, for example, worked more than five 9.5 hour shifts in seven consecutive days, he or she will be entitled to be paid double time for any additional shift in the seven consecutive days. Subclause 42.2.1 is “tailored” to the circumstances of the ordinary hour arrangements for full-time employees.

[28] Pursuant to subclause 18.2.3 Qantas is able to determine whether a part-time employee is employed on a fixed or variable arrangement. As the names suggest, a fixed arrangement concerns the part-time employee working a fixed number of hours per week, a fixed roster cycle or fixed specified days on which the ordinary hours are to be worked. A variable agreement facilitates a flexible working arrangement concerning the number of hours to be work and when those hours are worked.

[29] The maximum ordinary hours for a part-time airline employee are 30 hours in any week or 30 hours averaged over a 12 month period. The only restraint for a part-time employee is that, for a variable arrangement, he or she can work no more than 76 ordinary hours in any two week period.

[30] The maximum hours for part-time employees is “dovetailed” into the overtime provisions which provide that all hours up to 7.6 hours per day is paid at ordinary time. Further, all additional hours beyond 7.6 hours in any day and all days worked beyond 10 hours per fortnight or 1,560/1,410 hours in any year, are paid at overtime rates. Finally, any additional hours worked by a part-time employee on a fixed arrangement, beyond 30 ordinary hours in any week will be paid at overtime rates.

[31] The authors of EBA 10 have attempted to achieve compatibility or alignment between the manner and amount of hours worked by both full-time and part-time employees and when overtime is payable, and at what rate of pay.

[32] To verify its claim that Ms Gartside is entitled to double time for the hours worked on 11 October 2013, the ASU puts the proposition that the overtime provisions in subclause 18.5 of EBA 10 should be departed from and subclause 44.1.2 of EBA 10 apply. However, the provisions in subclause 44.2.1 in EBA 10 relate, in context, to full-time employees and there is a demonstrable difference how overtime is treated for both groups of employees.

[33] The idea of taking one particular aspect of overtime undertaken by a part-time employee, and contending that payment should be in accordance with the provisions of another subclause relating to full time employment, may have application and meaning if there was a “gap” in dealing with that aspect of overtime for part-time employees. However, in relation to Ms Gartside, there is no “gap” in the overtime provisions for part-time employees. There is discomfort in applying overtime provisions to part-time employees in subclause 44.1.2 when it is clear in subclause 18.5.2 that overtime is only applicable after 10 days per fortnight or 30 hours per week.

[34] Constructing an agreement requires a consideration of the ordinary meaning of the words having regard to their context and purpose. In this particular application of EBA 10, there is no dispute that Ms Gartside is a part-time Airline Officer and Clause 18 has direct application.

[35] In Clause 44 of EBA 10, there is only one reference to overtime for part-time employees and that is in subclause 44.1.2 which relates to “QFIT Only” - Ms Gartside is an Airline Officer and this provision is not applicable to her. In view of this context and purpose, I consider it appropriate to conclude that, with the exception of subclause 44.1.2 of EBA 10, the overtime conditions only apply to employees whose ordinary hours are an average of 38 hours per week. Secondly, it is also appropriate to infer that if an exemption for part-time “QFIT Only” employees has been made and readily identifiable in Clause 44, if another provision was intended to apply to part-time Airline Officers, similar wording could have been incorporated to make it clear that when part-time employees attended work other than on their rostered shift, they would be paid double time. There is no wording to suggest that the subclause applies to part-time employees.

[36] Clause 18 of EBA 10 is entitled “Part-Time Employees” and almost exclusively deals with the terms and conditions of employment for part-time employees in the enterprise agreement. In particular, there is a separate subclause dealing with overtime for part-time employees.

[37] The ASU submits that subclause 18.5 of EBA 10 is the “bare minimum” of overtime entitlements for part-time employees. Further, that there is no reference in subclause 18.5 “to indicate that it was intended, or does capture the entirety of overtime provisions as they relate to part-time employees”. 1 In my view, each contention cancels out the other. It is not possible in the absence of express words to claim that subclause 18.5 is either the “bare minimum”, or alternatively, the absence of words in subclause 18.5 to conclude that the subclause was not intended to capture the entirety of overtime provisions for part-time employees and that other terms of EBA 10 apply. In the absence of any express ordinary words supporting either ASU contention, the meaning and application of clause 18 of EBA 10 can be sought from its context and purpose.

[38] The Applicant submits that paragraph 42.2.1(b) of EBA 10 is intended to apply to part-time employees - “complementing, rather than overriding Clause 18.5”. And that paragraph 44.2.1(b) “provides a further benefit on top of 18.5, applicable only to shift workers, all shift workers, regardless of employment category (full-time, part-time, casual, etc).” Further, that “clause 18.5 fails to differentiate between the two classes of employees (day workers and shift workers) [and]...the entitlement in clause 44.2.1 is clearly intended as additional compensation for the inconvenience for being a shift worker rather than a day worker”. 2

[39] The proposition that subclause 44.2.1 of EBA 10 complements or overrides subclause 18.5 cannot be found in the text of the enterprise agreement. However, in response to the ASU’s submission that subclause 18.5 fails to distinguish between day workers and shift workers, does not take into account the fact that shift workers are considered in Clause 18 (see 18.1.2(b) and 18.2.4(c)). Overtime for part-time employees is constructed with a focus on hours, for example, more than 7.6 hours per day or 30 hours per week for part-time employees on fixed arrangements irrespective of whether it is a fixed or variable arrangement.

[40] Subclause 18.1.1 of EBA 10 is constructed fairly simply. A part-time employee, irrespective of how the hours are worked, are engaged for a minimum of 20 hours per week, with a minimum daily engagement of four hours. There is a maximum of 30 hours per week (or an average of 30 hours per week over 12 months). If a part-time employee works beyond their daily shift of say four hours, he or she is paid single time up to 7.6 hours pursuant to subclause 18.5.1. Similarly, if a part-time employee works beyond their designated hours, say 20 hours, he or she will be paid single time up to 30 hours and overtime beyond the 30 hours in any week. Different provisions apply to part-time employees with variable hours but a similar construction approach applies in that an upper limit has to be reached before overtime is applicable.

[41] The Applicant asserts that “clause 18.5 contemplates a series of ways in which any part-timer may be entitled to overtime, whereas clause 44.2.1 confers a specific entitlement to double time if a shift worker works a shift other than a rostered shift. Clause 18.5 contains no contemplation of the differences between the two classes (Day work/Shift work). The ASU assertion mixes two different structural entities - the person, in this case, “any part-time employee” with a condition, that is, working other than on a rostered shift. As I have already set out, “any part-timer” is all part-time employees. Secondly, the condition when overtime is paid to part-time employees is set out in subclause 18.5 and is not found in a subclause relating to full-time employees.

[42] In my view, to accept the ASU’s submission regarding the applicability of paragraph 44.2.1(b) would be tantamount to rewriting EBA 10 in relation to overtime for part-time employees without having regard to the terms in Clause 18 of the enterprise agreement.

[43] Finally, as Mason J observed in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd  3:

“Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasise the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that context be considered in the first instance...”

[44] Finally, if it is relevant and I am not convinced it is relevant, where there are two inconsistent provisions that cannot be reconciled, the general provisions should give way for the specific. The authority for this approach to the construction of enterprise agreements can be found recently in Leading Age Services Australia NSW - ACT [2014] FWCFB 129 at paragraph [19]:

“Clause 10.3 contains a scheme of provisions specific to the subject matter of part-time employment. Applying the generalia specialibus non derogant principle of interpretation, the specific provisions of clause 10.3 should be read as prevailing over other more general provisions of the Award in the case of inconsistency unless the context dictates otherwise....”

[45] This principle of construction comes from a long list of authorities. Qantas in this application referred to Smith v Queen 1994 181 CLR 338 at 348 as follows:

“...Where there is a conflict between general and specific provisions, the specific provision prevails (generalia specialibus non derogant). That principle is based on the presumed intention of Parliament and has, we think, a particular application where the conflict arises from different sections in the same act...It is but commonsense that Parliament having before it two apparently conflicting sections at the same time cannot have intended the general provision to have deprived the specific provision of effect.”

[46] This statutory rule has been applied by the Commission to the construction of awards and enterprise agreements.

CONCLUSION

[47] For the reasons set out above, pursuant to subclause 15.4 of EBA 10, my determination is that applying the circumstances of the events on 11 October 2013 involving Ms Gartside to EBA 10, Ms Gartside would be entitled to receive four hours at single time for attending the roster committee meeting.

COMMISSIONER

Appearances:

Ms McCarthy for the Applicant.

Mr Dalton of Counsel for the Respondent.

Hearing details:

2014:

Perth

3 April.

<Price code C, PR551200>

 1   Exhibit A1

 2   Exhibit A1

 3 (1985) 60 ALR 509 at 514

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