[2016] FWC 1968

FAIR WORK COMMISSION

DECISION

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

Australian Rail, Tram and Bus Industry Union
v
NSW Trains
(C2015/7219)

DEPUTY PRESIDENT SAMS

SYDNEY, 31 MARCH 2016

Application to deal with a dispute under an enterprise agreement – rostering of Train Drivers – requirement to work ‘excess’ shift in addition to ordinary hours of work – interpretation of sick leave clause – whether sick leave payable on an excess shift not worked – principles of interpretation – context and purpose of disputed provision – no evidence of custom and practice – no ambiguity or uncertainty – sick leave clause to be read in the context of the Act and the Agreement as a whole – ordinary meaning of overtime – no entitlement to sick leave for an ‘excess’ or overtime shift not worked – matter concluded.

[1] This decision will determine an application, filed by the Australian Rail, Tram and Bus Industry Union (the ‘Union’) on 9 November 2015, in which the Fair Work Commission (the ‘Commission’) is asked to deal with a dispute the Union has with NSW Trains in accordance with cl 8, the Dispute Settlement Procedure in the NSW Trains Enterprise Agreement 2014 [AE410460] (the ‘Agreement’).

[2] The Commission is empowered by the terms of the Dispute Settlement Procedure (Step 4, cl 8.4), to arbitrate any dispute that arises about the following:

(a) matters pertaining to the relationship between the Employer and Employees;
(b) matters pertaining to the relationship between the Employer and the Employee organisation(s), which also pertain to the agreement and / or the relationship between the Employer and Employees;
(c) deductions from wages for any purpose authorised by an Employee who will be covered by the agreement;
(d) the National Employment Standards; and
(e) the operation and application of this agreement.

[3] The dispute arises in respect to the application of cl 27.4 – Sick Leave, in circumstances where an employee claims sick leave for an ‘excess’ shift not worked. It is therefore a dispute about ‘the operation and application of this Agreement’. The Union framed the relief it seeks in a slightly different way, as ‘a determination from the Commission as to whether or not sick leave is payable on an ‘excess’ (pre-determined) shift that is posted on the Period Roster.’

[4] At this point, I set out the terms of the disputed clause below:

27.4 Sick Leave

(a) Sick leave on full pay accrues to an Employee at the rate of 15 days (maximum of 114 hours) each calendar year, and any such accrued leave, which is not taken, is cumulative.

(b) Employees are required to provide medical certificates when sick leave:

i. exceeds 3 consecutive working days;

ii. joins a public holiday, day in lieu of bank holiday, or picnic day; or

iii. occurs immediately before and after a Rostered Day Off (RDO) or Accrued Day Off (ADO) (including weekends for Monday to Friday workers).

(c) Subject to any restrictions imposed as a result of unsatisfactory attendance, Employees are entitled to a maximum of 6 days of total sick leave entitlements in any one year as uncertified absences.

N.B. The term ‘sick leave’ is analogous with the now more widely used expression ‘personal leave’. Where the term ‘personal leave’ is used in this Decision, it means the same as ‘sick leave’ in cl 27.4 of the Agreement.

[5] The dispute has had a rather curious history and is related to two other matters that have recently been before the Commission; indeed, at one point, the three matters were intended to be arbitrated together (or at least consecutively). Matter C2015/5399 was a dispute in almost identical terms to this matter, but lodged by NSW Trains. It was discontinued on 30 October 2015 after directions were issued on 2 October 2015. Matter C2015/5990, lodged by the Union, raised a similar issue as here; namely, whether an overtime, or ‘excess’ shift is payable where the employee is unable to attend work for that shift. In the earlier case, the employee (also a Train Driver) was unable to attend for the ‘excess’ shift because of inclement snow conditions in the Lithgow area. That matter was determined by me on 12 February 2016 in Australian Rail, Tram and Bus Industry Union v NSW Trains [2016] FWC 978. Relevantly, the Decision was not appealed. Given the similarities between the issues involved in both matters, particularly the submissions of the Union, it will come as no surprise that I intend to quote extensively from that decision later, and ultimately arrive at a consistent outcome.

[6] The present dispute was unable to be resolved at conciliation. On 19 November 2015, I issued directions for the parties to file and serve their evidence and an outline of submissions in preparation for a hearing on 15 January 2016. Ms J Epps, Passenger Organiser, appeared with Ms L Bennett, Lead Organiser for the Union and Mr S Jauncey, Solicitor appeared with Mr N Hill, Solicitor, with permission granted pursuant to s 596 of the Act, for NSW Trains.

[7] As a preliminary matter, I note that Form F51 Notices to Attend the proceeding were filed by the Union on 11 December 2015, directed to Mr Stephen Lance and Mr Brian Morley, both payroll employees of Transport for New South Wales. While the Commission issued these Orders over NSW Trains’ objections, the Union subsequently advised that it would no longer press for Mr Lance and Mr Morley to attend the hearing to give evidence.

THE EVIDENCE

[8] There was only one witness in the hearing – Mr Scott Hayes – Train Driver. In addition to the Agreement, the parties relied on a number of other documents. For the Union, Ms Epps referred to the:

Transport for New South Wales Policy: Attendance and Leave;

Drivers’ Rostering and Working Arrangements 2009;

Hamilton Depot Period Roster;

InterCity Driver Guide 2009;

2006 RailCorp Business Services Payroll Manual;

State Rail Authority Timekeeping Instruction to Electric Train Guards, 1 July 1981; and

An unattributed extract of a document dealing with sick leave, estimated to have been promulgated in 1971.

[9] For NSW Trains, Mr Jauncey referred to a number of other documents:

Relevant Rosters for the Hamilton Depot;

Medical Certificate for Mr Scott Hayes, dated 5 August 2015;

Rail Corporation, New South Wales, Rail Infrastructure Corporation and State Rail Authority of New South Wales Enterprise Agreement 2005; and

Railcorp Payroll Manual – Issue No: 004/2007 (extract of pages 1, 2 and 3).

For the Union

[10] The Union relied on the witness statement of Mr Hayes. Mr Hayes set out his employment history with the respondent and its predecessors, when he commenced with the State Rail Authority of New South Wales as an Apprentice Fitter and Machinist in 1993 and his subsequent retraining as a Driver in 2000. He has been based in Newcastle/Hamilton since 2008, to the present day.

[11] It was Mr Hayes’ evidence that he had been unable to attend work between Wednesday 5 and Friday 7 August 2015 due to illness affecting his ‘breathing, rest and concentration’. Earlier, he had contacted Mr Chris Huggett (Roster Officer, NSW Trains) on 5 August 2015, to advise him that he had obtained a medical certificate which set out that he would be fit to return to work on 8 August 2015. A copy of the medical certificate was provided with his witness statement. Mr Hayes acknowledged that prior to going on sick leave, he had asked his Shift Manager about entitlements to paid leave to move house and had been told that there was no such provision (unless it was a move at the employer’s initiative).

[12] Mr Hayes gave the medical certificate to NSW Trains upon his return to work. When he later received his pay advice, it identified the three days between 5 and 7 August 2015 as Leave Without Pay. After inquiring with his Shift Manager, he was advised that the three days had been classed as Leave Without Pay, because the Shift Manager he had previously spoken to about his illness, had told NSW Trains that he had asked about leave in order to move house. After the Union approached NSW Trains on his behalf, Mr Hayes was asked to provide a medical certificate outlining the specifics of his illness. Because he had only been off work for three days, he refused (Mr Hayes understood that his medical certificate and the exact nature of his illness had been discussed at a meeting between NSW Trains and the Union on 9 September 2015). NSW Trains then incorrectly asserted that he was off for seven consecutive days, by including his ‘book off’ days in the consecutive period. While NSW Trains subsequently provided him with paid sick leave for 5 and 6 August, he was not paid for 7 August 2015, because it was an overtime shift. When he complained to the Union, the matter was put into dispute.

[13] In cross examination, Mr Hayes was asked about the Master Roster for InterCity and regional Train Drivers for various depots. He agreed that the Master Roster flowed from the train operating timetable. He was referred to the Master Roster for InterCity Drivers out of the Hamilton Depot for the fortnight ending 8 August 2015. This roster set out ‘lines’ in an anticipated fourteen day roster for the Driver allocated to that line. Each day on each line was marked with a four digit code representing diagrams of the work the Driver was expected to perform. Each line of work identified anticipated ‘book off’ days for the Driver allocated to the line and each second line of work would identify an anticipated Accrued Day Off (ADO) for the Driver allocated to that line. Mr Hayes said that generally a Driver who is allocated to one line in one fortnight, will drop down to another line in the next fortnight. If a Driver is allocated to a line without an ADO in one fortnight, he/she would generally be allocated to a line with an ADO in the following fortnight.

[14] Mr Hayes agreed that for the purposes of the development of the Period Roster, Drivers were expected to indicate at least one ‘book off’ day or ADO in a fortnight, on which they are available to work an additional shift. This was done by marking the days which the Driver actually wished to have off, with ‘NTA’ (‘Not to Alter’). This effectively tells the Roster Clerk what days the Driver is not willing to work.

[15] Mr Hayes acknowledged that the Period Roster may need to be further refined to take account of unplanned absences, the actual work performed and unplanned leave claimed by individual Drivers. This is known as the ‘Top Roster’. He was shown a copy of the Top Roster for the Hamilton Depot for the fortnight ending 8 August 2015. He agreed that he had been allocated ‘off’ days on Friday 31 July and Saturday 1 August 2015, consistent with the Master Roster. He was also rostered to work from Sunday 2 August to Thursday 6 August 2015.

[16] Initially, Mr Hayes did not accept that he had made himself available for an additional shift on Friday 7 August 2015. However, he now conceded that he had accepted that shift. The next shift on Saturday 8 August 2015 was marked ‘NTA’, He was aware that the line he would be working the following fortnight would include ADOs on Sunday 9 and Monday 10 August 2015. He had marked both of these as ‘NTA’. Mr Hayes agreed that he had spoken to the Roster Officer on 27 July 2015 seeking to mark 8, 9 and 10 August as ‘NTA’, because he was moving house. He had spoken to his Shift Manager, Mr John Mundey, on 4 August 2015 to ask if he was entitled to take leave to move house. Mr Mundey advised him that there was no such entitlement under the Agreement.

[17] Mr Hayes further explained that he had started work in accordance with the roster at 2:00pm on Tuesday 4 August 2015, finishing at approximately midnight. At approximately 9:00pm that night, he had advised the Roster Officer that he would not be able to work the next day, because he was sick. After seeing his doctor the next day, Wednesday 5 August, he had advised NSW Trains that he would not be able to work for the following two days. Mr Hayes said he had already started moving house by this point and had not hired removalists. He claimed that he did not move house between 5-7 August 2015.

[18] In re-examination, Mr Hayes described the Master Roster as the ‘fixed line of working’. He contrasted this with the Period Roster in which the Roster Clerk could make ‘extremely varied changes.’ Overtime was placed on the Period Roster before a Driver started that line of work. Once it was posted on the Period Roster, Drivers were required to work it. He agreed that if he had not turned up to work a set overtime shift, he would be required to provide a medical certificate.

SUBMISSIONS

For the Union

[19] In written submissions, Ms Epps set out the history of the dispute, as referred to in Mr Hayes’ evidence. She denied that Mr Hayes had indicated that he could not work on 9 and 10 August 2015, as he had previously advised that he would be fit for duty from 8 August.

[20] Ms Epps submitted that the shift on 7 August 2015 was a rostered shift, posted on the Period Roster and was therefore guaranteed work. The shift would have constituted overtime, had it been worked. She described the Agreement as being silent on the question of whether sick leave was payable on ‘excess’ shifts, but submitted that this did not support NSW Trains’ preferred construction of the provision.

[21] Ms Epps rejected NSW Trains’ submission that cl 24.2 of the Agreement, setting the ordinary hours of work as 76 hours per fortnight, was irrelevant. She said that sick leave had never been restricted to payment for ordinary hours. Ms Epps put that the dispute involved the construction and application of cl 27.4 of the Agreement (see para [4]). This clause did not expressly restrict the payment of sick leave to ordinary hours only. This wording was identical to that used in previous enterprise agreements covering InterCity Drivers which were negotiated prior to the passage of the current Act. For this reason, Ms Epps submitted that the Agreement was not drafted in contemplation of the Act and it follows that there is no need to have regard to the Act and the National Employment Standards (NES).

[22] Ms Epps also drew the Commission’s attention to the Transport for NSW Attendance and Leave Policy and specifically, the Procedure for Leave. The provisions of this policy dealing with Sick leave/Carer’s leave are set out at cl 8 and are annexed to this decision and marked as Annexure A.

[23] Ms Epps noted that on 8 August 2015, Mr Hayes was on a RDO within the meaning of cl 3.7 of the Drivers’ Rostering and Working Arrangements 2009, but had nevertheless contacted his employer and advised of his ability to attend work. Ms Epps stressed that Mr Hayes had never requested paid leave for the purpose of moving house; he had only enquired as to whether there was such an entitlement. Further, NSW Trains’ policy set out that employees must state the nature of their illness/injury, only if their absence is for a period of more than seven days.

[24] Ms Epps outlined a chronology of the dispute between the parties as to the applicant’s disclosure of the particulars of his illness. While NSW Trains had ultimately acknowledged that its request for specifics of the applicant’s illness was without basis, it had then refused to pay him for the third consecutive day on 7 August 2015. It did so on the basis that it was an ‘overtime’ shift, as it was posted on the Master Roster, but not the Period Roster.

[25] Ms Epps referred to the definitions of ‘Master Roster’ and ‘Period Roster’ in the Agreement, which are as follows:

Master Roster is a roster that operates over an extended time frame and refers to the allocation of work as determined by business and operational requirements. It identifies lines of roster only and contains starting times for each day’s work and diagrams / schedule numbers for train crew. The master roster also provides Rostered Days Off (RDOs) for each line of roster and where applicable Accrued Days Off (ADOs) arising from the working of a 19 day month.

…

Working / Period Roster is a roster that operates on a weekly / fortnightly / four week cycle basis as defined in functional areas. All known actual work, including overtime and RDOs / ADOs, is displayed in the working / period roster. Any RDOs / ADOs shown will reflect the relevant Master Roster and may be varied in accordance with the current rostering arrangements applicable to the functional area or by agreement with the affected Employee(s).

[26] While I note that there is no reference to, let alone a definition of ‘Top Roster’ in the Agreement, Mr Hayes earlier explained that it was the final roster which was posted when all unplanned or emergency situations were known (usually the day before).

[27] Ms Epps stressed that Drivers and Guards did not actually work according to the Master Roster, which shows all known work in a particular Depot, according to the current operating timetable. Alterations, known leave and rostered additional ‘excess’ shifts are posted on the Period Roster. She believed that NSW Trains, had confused the terms, ‘Period Roster’ and ‘Top Roster’. The latter was specific to the Eveleigh Depot and was irrelevant to the current dispute. Also relevant to this dispute was Clause 3.9.5 of the Drivers Rostering and Working Arrangements Policy (‘DRWA Policy’), which states:

3.95(a) InterCity Drivers are to be available, if required, to work one (1) additional shift, which can include training each fortnight. If an InterCity Driver signifies their willingness to work on a duty free day and that day is joined to another duty free day, the job offered must not extend beyond midnight into another duty free day, unless there is mutual agreement between the driver and the rostering officer.

[28] Mr Epps emphasised that under this policy, Drivers are required to leave one of their ‘book off’ days available to accept as an ‘excess’ shift. Additionally, any shift on the Period Roster can be marked as a ‘pre-rostered’ shift. This is distinct from a shift which is posted solely on the Master Roster, in accordance with the minimum notice requirements of the DRWA Policy. Ms Epps said that an InterCity Driver must leave one additional ‘book off’ day free so as to be rostered for an overtime shift. If there is work available on that day, then it generally would be posted on the Period Roster. This was distinct from overtime accepted after the Period Roster was posted, which could be accepted at the discretion of the employee.

[29] Ms Epps observed that payments were claimed on fortnightly timesheets on the basis of ‘all known work’ for the fortnight being displayed on the Period Roster. As work was available and displayed on the Period Roster, it should attract a payment in accordance with cl 27.4 of the Agreement, irrespective of whether it was on the Master Roster or the Period Roster. Mr Epps argued that a ‘pre-rostered’ shift would only become an ‘excess’ shift if it fell after the ninth or tenth shift of the relevant roster period. It would have constituted overtime work only if it had been worked. Conversely, if not worked, it is assessed as ordinary time. Ms Epps stressed that the applicant did not seek overtime penalties for this shift, as it was not worked. While she conceded that the term ‘pre-rostered’ shift does not appear in the Agreement, she used this term to differentiate shifts displayed on the Period Roster, prior to it being posted and after it is posted.

[30] Ms Epps relied on two internal NSW Trains documents, which were said to support the Union’s construction of the Agreement. These were the 2006 Business Services Payroll Manual (the ‘Payroll Manual’) and the 2009 InterCity Driver Guide. Specifically, an example in the former document set out the payment of sick leave on a fortnight showed a Period Roster with the last two shifts as ‘excess’ shifts, on which the employee had taken sick leave. It is stated in this example that, ‘as the 16 hours lost time in this fortnight was after the 9^th shift had been worked, the time lost is not used to reduce the guarantee.’ Ms Epps rejected NSW Trains’ explanation that this document was just a ‘guide’. It was still utilised to by NSW Trains when paying InterCity Drivers and therefore Ms Epps maintained that the document was relevant to the matter before the Commission.

[31] While Ms Epps acknowledged that this example referred to Electric Train Running Network Drivers, both cl 27.4 and cl 106 of the Agreement were applicable to InterCity Drivers. Ms Epps observed that until November 2014, the RailCorp Enterprise Agreement 2010 applied to both Electric Train Running Network Drivers and InterCity Drivers. Both classifications are covered by the DRWA Policy and the payment of sick leave had never been applied differently or distinguished.

[32] Ms Epps referred to a further example in the Payroll Manual that was specific to InterCity Drivers. Under the heading of ‘Guarantee Exclusions’ was the following:

‘The following payments are excluded from the guarantee calculation and are paid in addition to base hours:

Weekend penalties on ordinary hours (first 8 hours per shift)

Public Holiday penalty.

Shift work allowances.

Correspondence allowance (after resuming leave)

Overtime bonus payments.

Holiday Loading.

All payments made after 9/10 shifts have been worked including penalties due thereon.

Time lost due to approved leave or bona-fide illness/injury after the ninth/tenth worked shift.’

[33] Ms Epps also relied on an a Policy document, circa 1971, which was promulgated as part of an ‘Advanced Timekeeping Course’, which was expressed in part as follows:

‘(iii) extra work: diagram enginemen who work extra shifts on a book-off day are to retain the full value of that work where time is lost due to sickness in the same period.’

She believed this document was still used by the Payroll Team to resolve arguments about the correct payment of sick leave. The document makes clear that sick leave payments are to be made on ‘pre-rostered’ shifts, regardless of whether they constitute an ‘excess’ shift or not. Ms Epps relied on a further document referable to Electric Train Guards in 1981, marked as ‘Electric Train Guards: representation from the A.R.U. in respect to payment of sick pay where days off cancelled by pre-rostered jobs.’ This document set out that sick pay was to be paid for the actual working time lost on ‘pre-rostered’ shifts. Ms Epps suggested that this document was negotiated for the Guards to ensure the Guards received the same terms and conditions as Drivers. It also demonstrated a distinction between ‘pre-rostered’ shifts and those ‘pencilled in’ following the posting of the Period Roster.

[34] Ms Epps claimed that this evidence demonstrated a practice of over three decades, which had its genesis in a signed agreement between the parties. She noted that NSW Trains had agreed to pay sick leave on all ‘pre-rostered’ shifts, including ‘excess’ shifts, up until this dispute. NSW Trains continued to abide by the status quo in continuing to pay sick leave when taken on ‘pre-rostered’ shifts.

[35] In summary, Ms Epps submitted that any shift that is posted on the Period Roster, whether it is displayed on both the Period and the Master Roster, or just the Period Roster, should attract the same sick leave payment as the two shifts preceding it.

[36] In oral submissions, Ms Epps put that cl 27.4(a) was ambiguous in its reference to ‘full pay’, rather than the terms ‘base rate’ (as in the NES) or ‘ordinary hours’ (as in the Agreement). If the parties had intended the NES to apply, this would have been reflected in the Agreement. The Act defines ‘full pay’ as inclusive of overtime. The Commission should consider the industrial history of the enterprise agreement. As there was an ambiguity, it was open to the Commission to give consideration to the surrounding circumstances, including facts so well known, that knowledge was to be presumed, including the ‘pre-rostered’ agreement of 1981, the advanced timekeeping course of 1984, Driver’s Guide of 2009 and the Payroll Manual.

[37] If the Commission did not accept that there was an ambiguity in the provision, Ms Epps submitted that cl 27.4 should be read in a manner consistent with s 18 of the Act, given its definition of ‘full rate of pay’, rather than in conjunction with the NES, which refers to ‘base rate of pay’. Section 18 of the Act is expressed as follows:

18 Meaning of full rate of pay

General meaning
(1) The full rate of pay of a national system employee is the rate of pay payable to the employee, including all the following:

(a) incentive-based payments and bonuses;

(b) loadings;

(d) overtime or penalty rates;

(e) any other separately identifiable amounts.

For NSW Trains

[38] In written submissions, Mr Jauncey argued that Mr Hayes was not entitled to paid sick leave on Friday 7 August 2015 for the following reasons:

(a) the scheduled work on that day, had it been performed, would have constituted overtime work, under sub-clause 111.5 of the Agreement;
(b) the Agreement does not, on its proper construction, entitle employees covered by the Agreement, to be paid sick leave if they are unable, due to illness or injury, to perform overtime work; and
(c) requiring NSW Trains to pay sick leave to Mr Hayes for Friday 7 August 2015, when no such obligation arises under the Agreement, would be contrary to s 739(5) of the Act.

[39] Mr Jauncey traced the genesis of the current Agreement, which followed the transfer of RailCorp employees to Sydney Trains and NSW Trains in July 2013. The Agreement covers Mr Hayes as an InterCity Train Driver. The DRWA Policy sets out working arrangements and is referred to at cl 13.1(d) of the Agreement.

[40] Mr Jauncey described the process used by NSW Trains to develop its timetables, schedules and rosters. The first step is the development of the Standard Working Timetable. This sets out the times that trains are scheduled to run and the number of trains required. From this a Base Schedule or Diagram is developed. A Diagram contains details about the train, route, station locations and travel time between stations. The fortnightly Master Roster is developed with reference to the Base Schedule and Diagram. The Master Roster is organised in ‘lines’ of work, setting out the proposed work pattern over the relevant fortnightly period. This includes references to ADOs and RDOs. A Driver moves ‘down’ to a new ‘line’ at the end of each period. Because the Master Roster reflects the train schedule, it does not generally change from fortnight to fortnight, unless the timetable is altered.

[41] Mr Jauncey then referred to the development of the Period Roster, in which individual Drivers and Guards are allocated to particular lines. The most common reasons for a change between the Master Roster and the Period Roster is to accommodate Drivers’ leave requests, training or shift swaps. Overtime work may be represented on the Period Roster. Mr Jauncey observed that the definition of Working/Period Roster in the Agreement sets out that the Period Roster will display all known actual work, including overtime. Period Rosters are generally published and distributed three days prior to the start of the relevant roster period. There may be further refinements after this point to deal with urgent leave requests or unexpected operational requirements. These changes are recorded on a ‘Top Roster’.

[42] Mr Jauncey explained how the Agreement and the DRWA Policy deal with overtime arrangements. The Agreement is divided into four sections. Section 1 applies across NSW Trains and Section 4 deals specifically with Train Crew, including Drivers (see: cl 99 and Schedule 4A). Ordinary hours of work for all employees is dealt with at cl 24.2 (in Section 1 of the Agreement). It is expressed as follows:

‘The ordinary hours of work shall be 76 hours per fortnight (excluding meal breaks) divided into not more than 10 hour shifts.’

In relation to Drivers, Mr Jauncey said that most ordinary hours and conditions are then supplemented by the provisions of cl 101 (in Section 4 of the Agreement), to the effect that, subject to certain conditions, ordinary hours may be worked in shifts of up to 12 hours, without attracting overtime penalties. Overtime is specifically dealt with at cl 111. Cl 3.9.5(a) of the DRWA Policy, operates in conjunction with cl 111 of the Agreement. It describes the circumstances in which Drivers are to be available for one additional shift, in each roster period. Sick leave is dealt with at cl 27.4 of the Agreement (see para [4]).

[43] Mr Jauncey referred to the circumstances in which Mr Hayes had sought personal leave for the period of 5, 6 and 7 August 2015, with reference to the Master Rosters, Period Rosters and Top Rosters at the Hamilton Depot for the periods 26 July-8 August 2015 and 9-22 August 2015. These rosters demonstrated that Mr Hayes was allocated to Line 15 of the Master Roster, with 31 July, 1, 7 and 8 August 2015 as ‘Off’ days. He was required to make himself available on at least one of these ‘Off’ days for an additional ’excess’ shift, if required. The Period Roster demonstrated that Mr Hayes was scheduled to perform ordinary work on 10 days (26-30 July and 2-6 August 2015) and work an additional shift on Friday 7 August 2015. He emphasised that this shift was not allocated to the relevant ‘line’ of work on the Master Roster and was the 11^thproposed shift for Mr Hayes in that fortnightly cycle. Mr Hayes was absent from work on 5, 6 and 7 August 2015 due to illness. He was not rostered to work on 8 August and he had advised that he was unavailable on 9 and 10 August. NSW Trains ultimately paid him sick leave for 5 and 6 August, but not 7 August 2015.

[44] Mr Jauncey rejected the Union’s submission that the additional shift on 7 August 2015 was not an overtime shift. This was inconsistent with the Union’s acceptance that a ‘pre-rostered shift’ (being any shift shown on the Period Roster, but as part of the Master Roster) will become an ‘excess’ shift if it falls after the ninth or tenth shift of the cycle. He stressed that NSW Trains did not necessarily accept this reasoning. In any event, the shift on 7 August 2015 was the eleventh shift of anticipated work. It therefore constituted overtime work and was outside the Master Roster pattern. It would have constituted overtime work had it been worked.

[45] Mr Jauncey referred to the principles of enterprise agreement interpretation as set out in Australasian Meat Industry Employees’ Union v Golden Cockerel Pty Limited[2014] FWCFB 7447 (‘Golden Cockerel’). He put that the question here is whether cl 27.4, on its proper construction, entitled an employee to paid sick leave if they are unable to perform overtime work by reason of illness or injury. He criticised the Union’s approach as failing to refer to the actual text of cl 27.4, particularly by Ms Epps’ repeated use of the term ‘pre-rostered shift’ – a term not found in cl 27.4 (or anywhere else in the Agreement). Nor was there any foundation for the distinction the Union sought to draw between overtime work offered before and after the promulgation of the Period Roster.

[46] Mr Jauncey submitted that cl.27.4 should be read in the context of ss 55(1) and (4) of the Act, requiring that an enterprise agreement must not exclude any provisions of the NES, but may supplement the NES, or provide terms ancillary or incidental to their operation. The brief text of the disputed clause suggest that cl 27.4 is intended merely to supplement the NES, in that it provides a greater number of days of sick leave and sets out the circumstances in which an employee is required to provide evidence of their illness or injury. The Agreement would otherwise ‘default’ to the NES provisions, which would not include an entitlement to paid personal leave for overtime work that was not performed. Section 99 of the Act refers to an employee being paid at their base rate of pay for their ordinary hours of work and s 16(1) sets out that ‘base rate of pay’ does not include payment in respect of overtime.

[47] Mr Jauncey put that this approach accorded with common sense and was supported by the Explanatory Memorandum to the Fair Work Bill 2008 at item 396. He noted that s 62 of the Act allows an employee to decline unreasonable overtime. Mr Jauncey put that the meaning of cl 27.4 was clear and unambiguous in not entitling employees to paid sick leave if they are unable to perform overtime work.

[48] Mr Jauncey referred to s 739(5) of the Act, which prevents the Commission from making a decision inconsistent with the Act or an industrial instrument applying to the parties. He said that references by the Union to past practice were misguided. Mr Jauncey submitted that the Payroll Manual would not assist the Commission in determining whether cl 27.4 entitled an employee to access sick paid sick leave for an unworked period, such as overtime. He noted that the copy obtained by the Union was in fact a draft document, prepared in 2006 prior to the commencement of both the Agreement and its predecessor enterprise agreement, the RailCorp Enterprise Agreement 2010 [AE882412]. In any event, the final version of the document expressed that it was intended as an explanation or a guide only and, to the extent of any inconsistency, the relevant Award or enterprise agreement would prevail. Moreover, the examples referred to by the Union were in respect to ETR Drivers, rather than InterCity Drivers.

[49] Mr Jauncey objected to the admission of the documents from 1971 and 1981, as they related to different historical arrangements under different and now replaced industrial instruments. As such, they were irrelevant to the Commission’s determination of this matter.

[50] While Mr Jauncey acknowledged that paid sick leave was ultimately granted to Mr Hayes, he confirmed that NSW Trains maintained, given the circumstances of his absence, that it was entitled to seek further information from him. The validity of his illness was not presently challenged.

[51] Mr Jauncey submitted that the Commission should determine that Mr Hayes is not entitled to be paid sick leave for his non-attendance on Friday 7 August 2015 and the Union’s application should be dismissed. In the alternative, he put that in the event that the Commission found that Mr Hayes was entitled to paid sick leave for his absence on 7 August 2015, it should also find that this be paid at the base rate of pay. Overtime penalties should not be included. This was consistent with s 99 of the Act.

[52] In oral submissions, Mr Jauncey referred the Commission to the following additional authorities dealing with the principles of interpreting an enterprise agreement: Shop Distributive and Allied Employees Association (Queensland Branch) Union of Employees v Woolworths Limited T/A Woolworths [2013] FWCFB 2814 and Kucks v CSR Ltd (1996) 66 IR 182. He noted that in conducting the interpretative exercise, it was first necessary for the Commission to determine whether an impugned term has a plain meaning or is subject to ambiguity. While regard may be had to evidence of surrounding circumstances, such evidence will not be admitted to contradict the plain meaning of the words. He added that it is not permissible to simply rewrite an enterprise agreement to achieve a fair or just outcome.

[53] While Mr Jauncey noted that it was common ground between the parties that had Mr Hayes had attended the shift on 7 August 2015, he would have been paid overtime. However, he could not say whether or not this would have been the case, if Mr Hayes had taken leave on 5 and 6 August and then returned to work on 7 August.

[54] In referring to the wording of cl 27.4 of the Agreement, Mr Jauncey suggested that the Union’s case was based on interpreting the term ‘full pay’ as obliging NSW Trains to pay for sick leave for an overtime shift that was not worked. This was inconsistent with the Union’s submission that the Agreement was silent on the question of whether sick leave should be paid on an ‘excess’ shift. Mr Jauncey submitted that the term ‘full pay’ refers to the rate of payment to be applied if an entitlement to sick leave arises. It is not to be understood as determining the circumstances in which sick leave is payable. Mr Jauncey noted that the term ‘full pay’ is distinct from the term ‘full rate of pay’ used in s 18 of the Act. In any event, s 18 was addressed to the rate of pay to be applied if the entitlement arose, not to determine whether the entitlement arose. The Union seemed to be saying that the reference to ‘full pay’ meant that sick leave needs to be paid in respect of overtime not worked, but does not have to be at the full rate of pay, as set out in s 18 of the Act. This construction of the Agreement was ‘contorted’.

[55] Mr Jauncey submitted that if the Agreement is silent on the question of whether sick leave is payable, then reference should be had to the provisions of the NES. It was permissible under the Act for an enterprise agreement to supplement the NES. Section 99 of the Act makes it clear that an employee is to be paid personal leave at the employee’s base rate of pay for the employee’s ordinary hours in that period. Payment only arises in respect to an absence during ordinary hours, not in a period which would otherwise have been overtime work.

[56] Mr Jauncey said that cl 24 of the Agreement set out that Mr Hayes’ ordinary hours for the fortnight would have been 76 hours and did not include overtime. The Commission could only conclude that there was no legal obligation for NSW Trains to pay sick leave to Mr Hayes for his absence of 7 August 2015. Clause 27.4 was applicable to all employees covered by the Agreement. He noted that it had never previously been contended that an employee had a right to sick leave if they are unable to attend for overtime work, including scheduled overtime work.

[57] Mr Jauncey put that there was no ambiguity in the Agreement or the Act and the Commission should not place any weight on any extrinsic material. However, if the Commission was of the view that there was some ambiguity, the extrinsic material provided by the Union would not assist the interpretation of the clause. The historic age of this material (prepared before the commencement of the Modern Award, the Agreement and its 2010 predecessor) and its application to specific classifications not related to the current dispute involving InterCity Drivers, meant that such material was not relevant. The Payroll Manual expressly disavowed displacing the terms of the Agreement and, in any event, the copy relied on by the Union was only a draft.

[58] In respect to the ‘Advanced Timekeeping Course’ document, Mr Jauncey put that there was no evidence to support the Union’s submission that this document was still used where there was controversy regarding sick leave payments. He observed that there was a requirement in this document for employees to provide medical certificates with particulars of their illness or injury. It also referred to a 40 hour working week. In any event, the example referred to a Diagram Engineman being made up for ordinary hours of work lost to illness or, alternatively, retaining the value of a shift worked on a ‘book off’ day where they are absent on another day in the cycle. This was inconsistent with the proposition advanced by the Union in this case. Moreover, the Union had produced no evidence of NSW Trains engaging in a practice consistent with this proposition.

[59] Mr Jauncey stressed that the Agreement was clear and unambiguous in not providing for sick leave to be paid for overtime work. The Union’s application should be dismissed. In response to a question from me, Mr Jauncey confirmed that NSW Trains’ position was that if Mr Hayes was required to absent himself from an overtime shift for a reason that would not attract other paid leave, he would not have been required to take annual leave for that day. However, he would generally be expected to work the overtime shift.

[60] In reply, Ms Epps submitted that in light of the Agreement being uncertain and ambiguous by the use of the expression ‘full pay’, the history of industrial relations in the railways needed to be taken into account. She maintained that the extrinsic material provided by the Union was relevant. Ms Epps acknowledged that the Union had not provided documentary evidence of a practice of NSW Trains paying sick leave for ‘pre-rostered’ shifts. She believed that NSW Trains had adhered to a status quo of paying sick leave for such shifts (I note that Mr Jauncey rejected this). However, she could not produce evidence to that effect.

[61] Ms Epps emphasised that cl 27.4 of the Agreement was in the same terms as the collective agreement covering the relevant employees in 2008 and could not possibly have been written in contemplation of the NES. The InterCity Drivers Guide was published after the advent of the Act. It expressed that time lost due to approved leave or a bona fide illness/injury after the ninth or tenth shift, was excluded from the guarantee calculation and paid in addition to base hours. She did not accept that this presupposed that an employee was working the extra shift. In response to a question from me, Ms Epps clarified that this example had historically been applied differently to train crew, as opposed to administrative employees.

[62] Finally, Ms Bennett set out the history of the instruments covering employees of NSW Trains, noting that there had been a series of consolidations of industrial coverage. She referred to cl 1.1 of the Agreement, which is expressed as follows:

1.1 This agreement comprises four sections. The provisions included in Section 1 have organisational wide application. The provisions included in Sections 2 to 4 have application to Employees covered by the classifications included in the respective sections (as indicated in each section title). The provisions in Section 1 are to be read in conjunction with any provisions in Sections 2 to 4 which are intended to have functional application and have therefore been included in other Sections of this agreement. Where provisions in Sections 2-4 are inconsistent with provisions in Section 1, the provisions in Sections 2-4 will prevail for the Employees covered by those Sections.

[63] While Ms Bennett acknowledged that cl 27.4 fell under Section 1, being the core conditions for all employees, she put that cl 1.1 demonstrated the intention of the parties to maintain some historical differences and deal with inconsistencies arising through consolidation. She noted that the definition of ‘excess’ shift fell under Section 4 of the Agreement, which covered Drivers.

CONSIDERATION

[64] In my view, it was perfectly understandable that management had some suspicions as to the genuineness of Mr Hayes’ illness, given that one day prior to taking sick leave, he had made enquiries about an entitlement to paid leave to move house and, coincidentally, he then claimed for three days’ sick leave on 5, 6 and 7 August 2015. True it is that Mr Hayes had provided a medical certificate for the three days, which disclosed that he was ‘unfit to continue his usual occupation’. However, it must also have appeared curious that Mr Hayes had already advised the Roster Officer he was marking ‘NTA’ for 9 and 10 August in order to move house and was not rostered on 8 August. In other words, he had 5-7 August as sick days, contiguous with 8 August not rostered and 9 August as ‘NTA’ days off – six days in a row.

[65] Obviously, I make no findings as to the genuineness of Mr Hayes’ illness or the veracity of the medical certificate. It is unnecessary, in any event, for the purposes of determining this dispute. However, it would be naïve of me (after many years of industrial experience) not to acknowledge that occasionally employees obtain medical certificates for symptoms which the employee tells the doctor that they have and which are not physically obvious, without costly or invasive investigation. The Doctor often relies entirely on what the patient tells him or her, which may even have been obtained from ‘googling’ a particular ailment and relating its symptoms to the Doctor.

[66] That said, I hasten to add that I make no such findings in this case. In any event, the issue her is not the genuineness of Mr Hayes’ illness (as NSW Trains has accepted he was ill and accepts the medical certificate); rather, the issue is whether he should be paid for the third day, 7 August 2015, because it fell on an overtime shift which was obviously not worked.

[67] I earlier mentioned that this case has many similarities and raises the same principal issue to that discussed in my recent decision on 12 February 2016; so much so that the same arguments were advanced by Ms Epps for the Union in this case. It will come as no surprise then that I have arrived at a similar consonant conclusion.

The principles of enterprise agreement interpretation

[68] There is no controversy that the principles to be applied by the Commission to the interpretation of cl 27.4 of the Agreement are those set out in the recent decision in Golden Cockerel. These principles are helpfully set out at para [41] as follows:

‘1. The [Acts Interpretation Act 1901] does not apply to the construction of an enterprise agreement made under the [Fair Work Act 2009].

2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.

3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:

(a) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(b) notorious facts of which knowledge is to be presumed;

7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.

8. Context might appear from:

(a) the text of the agreement viewed as a whole;

(b) the disputed provision’s place and arrangement in the agreement;

(c) the legislative context under which the agreement was made and in which it operates.

9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.

10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties [emphasis added].’

[69] It must be stressed that the interpretative exercise begins with a determination of whether the words in cl 27.4 have a plain and ordinary meaning or contain an ambiguity or uncertainty or are susceptible to more than one meaning. If the words have a plain and ordinary meaning, evidence of surrounding circumstances will not be admitted to contradict that plain meaning. Also relevant here is that the interpretative task does not involve rewriting the clause or adding words to achieve a fair or just outcome.

[70] Like the earlier case, it is obvious that cl 27.4 of the Agreement does not expressly provide for, or even reference, the taking of sick leave on an ‘excess’ or overtime shift. Ms Epps described this as an ambiguity or uncertainty, while Mr Jauncey described the clause as merely supplementary to the NES, in that it provides a greater quantum of days and sets out the circumstances in which an employee is obliged to provide evidence of their illness or injury. It does not identify the circumstances which gives rise to the entitlement or the obligation. I agree with Mr Jauncey’s analysis.

[71] When approached in this way, I can find no ambiguity or uncertainty in the words of cl 27.4, dealing with sick leave and ‘excess’ overtime shifts. The reality is that Mr Hayes himself recognised that the shift on 7 August 2015 was an overtime shift, as he advised Roster Officer Virage on 27 July 2015 that he was available for an overtime shift on that day. This was an entirely conventional request, which is well understood as being required of the Drivers when they identify availability for shifts in excess of 76 ordinary hours a fortnight and is clearly consistent with what is required under the Period Roster (see the definition at para [25]). In addition, I note that the evidence in the earlier case was that it is well understood in the industry that an ‘excess’ shift means the same as an overtime shift (see para [67] of that Decision).

[72] Even if Ms Epps is right that extrinsic material is relevant in this case because of an ambiguity, there is not a skerrick of evidence that NSW Trains has ever applied the interpretation for which the Union contends, since the approval of the 2014 Agreement, or its predecessor 2010 Agreement. Going back to decades old policy documents, not even applying to the employees subject of this dispute, takes the Union’s case nowhere (even if it was presumed to be permissible, once having found an ambiguity with the actual words used).

[73] In the earlier decision, I identified the Union’s argument in summary form as:

‘ an ‘excess’ shift or ‘predetermined’ shift is known and available work as disclosed by the Period Roster, which must be worked by the Driver; and

an ‘excess’ or ‘predetermined’ shift does not become an overtime shift until the completion of a nine or ten day fortnightly roster at ordinary rates and it is an ordinary shift until that point.’

[74] I then identified ten reasons why I was unable to accept the Union’s interpretation of the disputed clause in that case; at least eight of which have direct application to the same arguments Ms Epps advanced in this case. These reasons were set out as follows:

‘[58] Firstly, in my opinion, Ms Epps posed the wrong question – the question is not whether Special Leave is payable on all shifts on the fortnightly roster as posted on the Period Roster. The question is whether an ‘excess’ or overtime shift, in a fortnightly roster, attracts Special Leave when the shift is not worked.

[59] Secondly, the ‘excess’ shift under this Agreement is a different and distinct shift to an ordinary hours shift; otherwise it would not be so described in the Agreement and treated differently for the purposes of payment when it is worked. Mr Healey acknowledged that the term ‘excess shift’ is analogous to overtime or ‘additional’ shift. Moreover, the definition of an ‘excess shift’ is actually found in the overtime provisions at cl 111.5, where it states:

111.5 An excess Shift is a Shift worked in excess of 9 or 10 Shifts for the fortnight depending upon whether an Employee is on a 19 or 20 day four week cycle, i.e. Shifts in excess of the usual maximum number of Shifts that can be worked for the ordinary fortnightly hours.

[60] Thirdly, if one accepts that the ‘excess’ shift is overtime, as that notion is generally understood, then where overtime is not worked, an employee is not usually paid for it – either at ordinary or overtime rates. Of course, the position might be different if an employee has fixed overtime built into his/her rate of pay or it is paid pursuant to a specific contract of employment. That is not the case here.

[61] The general proposition that where overtime is not worked, it is not paid for, sits comfortably with other of the leave provisions in the Agreement, which recognise for example, that sick leave, annual leave etc. are all paid at ordinary rates. Indeed, it is difficult to reconcile the Union’s interpretation of cl 27.8(j) with the Definition of Special Leave in the Business Services Payroll Manual:

‘Special leave can be paid or unpaid leave for off duty activities that are not covered by other forms of leave.

Special leave does not accumulate from year to year, but does count as service for all purposes.

Public holidays are not re-credited if they fall during special leave.

Except whether otherwise mentioned, paid special leave days are only paid for ordinary rostered shifts lost at single rates. They are not subject to overtime, weekend or public holiday penalties, and are not used to determine excess overtime shifts for train crew and wages operations employees [emphasis added].’

It was not submitted that natural disaster leave was an exception to this definition.

[62] Fourthly, in my view, it is irrelevant where the ‘excess’ or overtime shift falls in the fortnightly roster. It does not become overtime at the conclusion of the fortnightly roster because the full nine or ten shifts are presumed to have been worked in the Period Roster. In any event, it is designated as an overtime shift, even when the Period Roster is posted. In other words, a Driver will know when the Period Roster is posted that he/she will have 76 hours’ work in a fortnight and may have been allocated an excess shift/s for which overtime will be paid.

[63] Fifthly the submission that an ‘excess’ shift is known and available work, does not advance the Union’s case very far. All work is known and the Driver is presumed available whether it is known one hour or one month beforehand. Ms Epps submitted that all known work is on the Period roster. This is not strictly correct. On the Union’s own evidence, the fact that a Driver may become unavailable due to illness, emergency or pressing domestic circumstances and be required to ‘swap’ shifts or pursue other options, demonstrates that the ‘excess shift’ may not ultimately be ‘known and available’ work.

[64] Sixthly Ms Epps drew a distinction between a ‘pre-rostered’ shift and an ‘excess’ shift (see para [49]). In my view, there is no basis for such a submission. Nowhere in the Agreement is the concept of ‘pre-rostered’ shift mentioned, let alone defined. Moreover, Mr Healey acknowledged that an ‘excess’ shift, overtime shift and additional shift all have the same meaning understood by Drivers. Ms Epps fell into the impermissible interpretative trap of adding words to the Agreement to change its plain ordinary meaning.

…

[68] Tenthly, I also consider it relevant, given the principles in Golden Cockerel to have regard to cl 106, dealing with Guaranteed Payment. This clause states, inter alia:

‘106. GUARANTEED PAYMENT

106.1 Employees, other than casuals, who are ready, willing and available for all work offered to them shall be paid each fortnight an amount equivalent to ordinary hours for the fortnight at the ordinary rate of wage for their grade (Guaranteed Payment). The Guaranteed Payment is all wages payable to the Employee for the ordinary Shifts worked each fortnight, excluding:

(a) penalties for Shift work and for Saturday time and Sunday time; and

(b) any allowance representing the difference between their classified rate and the ordinary rate applicable to them whilst acting in a grade higher than their own.

…

106.4 This clause applies to time worked on ordinary Shifts only. Time worked on excess Shifts shall be paid for in addition to the Guaranteed Payment.

Thus, when viewed in the context of the Agreement overall and given the reconciliation of the Special Leave provisions with the Guaranteed Payment clause, it is clear what the intention of the words used are in the Special Leave Clause (cl 27(8)(j)). It is not that payment is to be made on an ‘excess’ or overtime shift not worked. It is payable only on an ordinary shift, not worked.’

[75] In addition, and even if it is accepted that the Agreement is silent on the subject (which I do not), guidance can be found at s 99 of the Act, where an entitlement to paid personal leave is to be paid at the employee’s base rate of pay for the employee’s ordinary hours of work. That section is set out below:

99 Payment for paid personal/carer’s leave

If, in accordance with this Subdivision, an employee takes a period of paid personal/carer’s leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.

[76] The correct interpretation of cl 27.4 is readily ascertained by the context and purpose of the clause, by reference to the text of the Agreement as a whole and the legislative context under which the Agreement was made and in which it operates, particularly ss 16, 20 and 99 of the Act. Section 16 defines the meaning of ‘base rate of pay’ as follows:

16 Meaning of base rate of pay

General meaning
(1) The base rate of pay of a national system employee is the rate of pay payable to the employee for his or her ordinary hours of work, but not including any of the following:

(a) incentive-based payments and bonuses;

(b) loadings;

(d) overtime or penalty rates;

(e) any other separately identifiable amounts.

[77] Section 20 defines the meaning of ‘ordinary hours of work’ and provides a default of 38 ordinary hours a week:

20 Meaning of ordinary hours of work for award/agreement free employees

Agreed ordinary hours of work
(1) The ordinary hours of work of an award/agreement free employee are the hours agreed by the employee and his or hernational system employer as the employee’s ordinary hours of work.

If there is no agreement
(2) If there is no agreement about ordinary hours of work for an award/agreement free employee, the ordinary hours of work of the employee in a week are:

(a) for a full time employee—38 hours; or

(b) for an employee who is not a full-time employee—the lesser of:

(i) 38 hours; and

(ii) the employee’s usual weekly hours of work.

If the agreed hours are less than usual weekly hours
(3) If, for an award/agreement free employee who is not a full-time employee, there is an agreement under subsection (1) between the employee and his or her national system employer, but the agreed ordinary hours of work are less than the employee’s usual weekly hours of work, the ordinary hours of work of the employee in a week are the lesser of:

(a) 38 hours; and

(b) the employee’s usual weekly hours of work.

Regulations may prescribe usual weekly hours
(4) For an award/agreement free employee who is not a full-time employee and who does not have usual weekly hours of work, the regulations may prescribe, or provide for the determination of, hours that are taken to be the employee’s usual weekly hours of work for the purposes of subsections (2) and (3).

[78] If any further authority was necessary, one can see that the NES in respect to annual leave (s 90), community service leave (s 111(2), compassionate leave (s 106), public holidays (s 116) and redundancy pay (s 119(2)), that the entitlement in all these circumstances is base rate of pay for ordinary hours of work. Added to the consistent weight of statutory authority is the recognition in the Agreement itself that other forms of leave are paid at ordinary rates.

[79] It must follow that consistent with the context of the Agreement viewed as a whole, and within the statutory framework in which the Agreement operates, that there is no entitlement to personal leave for overtime, which is not worked, whether it is scheduled overtime or otherwise. I give this extreme example to demonstrate this conclusion. On Ms Epps’ submission, a full time weekly employee who is asked on a Monday to work three hours overtime on the following Thursday and then takes three days’ personal leave Tuesday-Thursday, would be entitled to be paid overtime for the three hours not worked on Thursday. This is illogical and contrary to common sense. Another curious submission of Ms Epps’ was that because the same wording of cl 27.4 had predated the Act and the NES, the NES is irrelevant. This is a nonsense submission and flies in the face of the clear, ordinary meaning of the words in the relevant 2014 Agreement. Moreover, Ms Epps’ submissions are contradictory. On the one hand, she claimed the Act and the NES were irrelevant to this dispute (see para [21] above), but then invites the Commission to read cl 27.4 consistent with s 18 of the Act, the meaning of ‘full rate of pay’ (see para [37] above).

[80] There is an old idiom, first recorded in the eleventh century, but having its origins in the ancient world, that ‘all roads lead to Rome.’ According to the Cambridge Dictionary, the idiom means ‘all methods of doing something will achieve the same result in the end.’ In my opinion, no matter which way you look at the question of whether personal leave is payable for an overtime shift not worked, the same result will be reached in the end. Despite Ms Epps valiant travels down many roads, she did not reach the result for which she contends.

[81] For the reasons expressed herein, I am unable to accept the Union’s interpretation of cl 27.4 of the Agreement. To be abundantly clear, I find that sick leave is not payable on an ‘excess’ or overtime shift not worked during an employee’s Period Roster. Accordingly, Mr Hayes has no entitlement to paid sick leave for 7 August 2015. The matter is concluded accordingly.

DEPUTY PRESIDENT

Appearances:

Ms J Epps with Ms L Bennett for the Australian Rail, Tram and Bus Industry Union

Mr S Jauncey, Solicitor with Mr N Hill, Solicitor for NSW Trains

Hearing details:

2016:

Sydney,

15 January.

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