Australian Rail, Tram and Bus Industry Union v NSW Trains

[2016] FWC 978

[2016] FWC 978

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
(C2015/5990)

DEPUTY PRESIDENT SAMS SYDNEY, 12 FEBRUARY 2016

Rostering of Train Drivers – Master and Period Rosters – requirement to work ‘excess’ shifts – natural disaster relief leave (Special Leave) – whether entitlement to payment for Special Leave for an ‘excess’ shift not worked due to a natural disaster – interpretation of enterprise agreement – principles of interpretation – context and purpose of disputed provision – no evidence as to custom and practice – general principles of when overtime is not worked – ‘excess’ shift is an overtime shift – no entitlement to payment for an ‘excess’ shift not worked due to a natural disaster – matter concluded.

BACKGROUND

[1] Train Drivers working for NSW Trains are employed under the terms of the NSW Trains Enterprise Agreement 2014 [AE410460] (the ‘Agreement’). Drivers obtain work at their Depot in accordance with the Drivers Rostering and Working Arrangements 2009 Policy and the Transfer and Roster Placement Policy. Read in conjunction with the relevant terms of the Agreement, a Driver’s work is allocated according to both a Master Roster and a Working (or Period) Roster. These rosters are defined in the Agreement 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).

[2] It may be seen that the Master Roster is prepared well in advance of the Period Roster and does not allocate a particular Driver to specific lines of work. It contains all known work, based on train timetables. The Period Roster is usually notified five days before it commences and contains any required alteration or amendment, at the local Depot level, due to operational needs or to meet unplanned absences.

[3] Drivers are also required to work at least one additional shift to their ordinary fortnightly roster of nine or ten shifts. This is to provide cover for annual leave or other short notice Driver absences or as a result of the operational needs of the business and is posted on the Period Roster. These additional shifts are referred to as ‘excess’ shifts and attract overtime payments.

[4] In the fortnight ending 25 July 2015, Train Driver, David Healey from the Lithgow Depot, was rostered on the Period Roster to work twelve shifts in a fourteen day period. However, due to heavy snowfalls in the local area, Mr Healey was unable to travel to work on three of those days: Sunday 12 July, Monday 13 July and Friday 17 July 2015. Pursuant to cl 27.8(j) – Natural Disasters of the Agreement, Mr Healey applied for Special Leave for the three days. The clause is set out as follows:

(j) Natural Disasters
Employees who are unable to attend work because of a natural disaster (e.g. flood or bushfire) are eligible for Special Leave, if work was available. Employees must provide a statutory declaration as evidence of their inability to attend work (including details of alternative routes to work, if any).

[5] NSW Trains accepts that given the severe climatic conditions, Mr Healey was entitled to Special Leave on Sunday 12 July and Friday 17 July 2015, which were ‘ordinary time shifts’, but not Monday 13 July 2015. It defended this decision on the basis that the shift on that day was an overtime shift or ‘excess shift’ and therefore not subject to cl 27.8(j) of the Agreement. While the Master Roster had originally showed that the line allocated to Mr Healey was rostered off on Monday 13 July 2015, the Period Roster disclosed that Mr Healey was rostered on an ‘excess’ shift that day. Had he worked that shift, he would have been paid at overtime rates. Mr Healey’s Union, the Australian Rail, Tram and Bus Industry Union (the ‘Union’), seeks to have Mr Healey paid Special Leave, at ordinary time, for the shift he did not work on 13 July 2015.

[6] The Union argued that the issue in dispute was not whether an overtime shift was covered by the Special Leave provisions of the Agreement, but rather whether Special Leave is payable on shifts displayed on the Period Roster or if such leave is payable only on shifts posted on the Master Roster.

[7] On 8 September 2015, the ‘Union’) filed an application seeking to have the Fair Work Commission (the ‘Commission’) deal with a dispute in accordance with the Dispute Settlement Procedure (DSP) set out in cl 8 of the Agreement, which is expressed as follows:

8. DISPUTE SETTLEMENT PROCEDURE (DSP)
8.1 The purpose of this procedure is to ensure that disputes are resolved as quickly and as close to the source of the issue as possible. This procedure requires that there is a resolution to disputes and that while the procedure is being followed, work continues normally.

8.2 This procedure shall apply to 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.

8.3 This procedure shall not apply to matters arising under the General Protections provisions of the Fair Work Act 2009 (Cth).

8.4 Any dispute between the Employer and Employee(s) or the Employee’s representative shall be resolved according to the following steps:

STEP 1: Where a dispute arises it shall be raised in the first instance by the Employee(s) or their Union delegate directly with the local supervisor / manager. The local supervisor / manager shall provide a written response to the Employee(s) or their Union delegate concerning the dispute within 48 hours advising them of the action being taken. The status quo before the emergence of the dispute shall continue whilst the dispute settlement procedure is being followed. For this purpose “status quo” means the work procedures and practices in place immediately prior to the change that gave rise to the dispute.
STEP 2: If the dispute remains unresolved, or if the dispute involves matters other than local issues, the General Manager Employee Relations or their nominee, a divisional management representative and the Employee(s) and / or the Employee(s) representative, Union delegate or official shall confer and take appropriate action to arrive at a settlement of the matters in dispute within 72 hours of the completion of Step 1 or the General Manager Employee Relations being notified of a dispute involving other than local issues.
STEP 3: If the dispute remains unresolved, each party to the dispute shall advise in writing of their respective positions and negotiations about the dispute will be held between the Employee representative(s) or Union official, the Chief Executive of NSW Trains or their nominee who will meet and conclude their discussions within 48 hours. The matter may be referred to Unions NSW for resolution of the dispute by any of the parties involved provided Unions NSW is chosen by the Employees as their representative.
STEP 4: If the dispute remains unresolved any party may refer the matter to the Fair Work Commission for conciliation. If conciliation does not resolve the dispute the matter shall be arbitrated by the Fair Work Commission provided that arbitration is limited to disputes that involve matters listed in sub-clause 8.2 of this procedure.

8.5 By mutual agreement confirmed in writing, Step 3 outlined above may be avoided, and the parties to the dispute may seek the assistance of the Fair Work Commission in the terms outlined at Step 4.

8.6 If it is decided to refer the matter to the Fair Work Commission, the referral must take place within 72 hours, excluding weekends and public holidays, of completing Step 3. A copy of the notification must be forwarded to all relevant parties to the dispute.

8.7 The parties to the dispute may extend the timeframe of Steps 2 – 4 by agreement. Such agreement shall be confirmed in writing.

8.8 The timeframes in Steps 1 to 4 above are exclusive of weekends and public holidays.

8.9 Safety Issues
Matters which are based on a reasonable concern by an Employee about an imminent risk to an Employee’s health or safety shall be excluded from the DSP. Where a matter is raised involving such an issue, the Employee shall agree to comply with a direction by the Employer to perform other available work which is safe and reasonable and within their skills and competence with no reduction in the rostered rate of pay of the Employee while the alternative work is being performed.

For present purposes, it is sufficient to note that the DSP provides for arbitration by the Commission ‘as to the operation and application of the Agreement’ (cl 8.2(e)). There is no argument that the dispute is capable of being arbitrated by the Commission and the parties proceeded to put their respective cases on that basis.

[8] The dispute was the subject of a number of conferences convened by the Commission, but ultimately the parties’ respective positions did not readily accommodate a conciliated outcome of the dispute. Directions for the filing and service of evidence and submissions were issued on 2 October 2015. The matter was listed for arbitration on 3 December 2015. Ms J Epps, Passenger Organiser, appeared with Ms L Bennett, Lead Organiser for the Union and Mr A Woods, Solicitor with Mr N Hill, Solicitor appeared, with permission being granted pursuant to s 596 of the Act, for NSW Trains.

THE EVIDENCE

[9] Both parties relied on other related terms of the Agreement and the employer’s policies, including the following:

[10] The introductory clauses to the Special Leave provisions state:

27.8 Special Leave

(a) Special Leave is paid leave which enables Employees to participate in community activities, or to deal with public emergencies. It covers special situations not catered for by other forms of leave.
(b) Special Leave does not accumulate from year to year and does count as service for all purposes. Public Holidays are not re-credited if they fall during Special Leave.

[11] The treatment of Special Leave is expanded on in the Business Services Payroll Manual. This is used by the Payroll Team in processing Special Leave claims. It states:

‘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.’

[12] Clause 3.9.5 of the Drivers Rostering and Working Arrangements 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.

[13] The definition of an ‘excess’ shift is found at cl 111.5 as follows:

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.

THE EVIDENCE

[14] The following persons gave oral and written evidence in the proceeding:

• Mr David Healey, Train Driver for NSW Trains;



• Mr Robert Newham, Union Organiser; and



• Mr Peter Styles, Manager Workplace Relations, NSW Trains.

[15] At this point, I note that much of the evidence was directed to uncontested factual matters. That said, the question to be determined in this case, although of relatively narrow compass, is whether Mr Healey should be paid for the overtime shift not worked on Monday 13 July 2015. Ultimately, determining this question is a matter of the proper construction of the Agreement’s provisions. It is not a question of what might appear to be a fair or reasonable outcome for Mr Healey in the circumstances.

[16] Nevertheless, it would be unrealistic to expect (nor do I think the parties expect) that the outcome of this case would be quarantined to Mr Healey’s specific circumstances. The outcome may have flow on effects to other employees who claim, or have claimed, Special Leave for overtime or ‘excess’ shifts not worked, or more generally, whether employees are paid for overtime shifts not worked.

Mr David Healey

[17] Mr Healey has been a Train Driver for NSW Trains, or its predecessor entities, since 10 October 1988. He has been employed at the Lithgow Depot since September 2012.

[18] Mr Healey said that a term of the Agreement requires a Driver to leave one day per fortnight of their Book Off Days free, in order to accept additional work, if required (the ‘excess’ shift). The days he is not willing to work must be notified to the rostering officer prior to the posting of the Period Roster. From his 33 years’ experience, an ‘excess’ shift, not worked and subject to cl 27.8(j) of the Agreement would not attract overtime penalty rates or contribute to the overtime bonus, but would be paid at ordinary time.

[19] Mr Healey described the circumstances which prevented him from working his allocated shift on 13 July 2015, the refusal of NSW Trains to pay him for that day and the initiation of this dispute on his behalf by the Union. He believed this shift was ‘known’ work posted on the Period Roster and would have been worked, but for the adverse climatic conditions.

[20] In cross examination, Mr Healey agreed that depending on how many shifts he worked that fortnight, the shift on Monday 13 July would have become an overtime shift at the end of the fortnight, had it been worked. Mr Healey agreed that the terms ‘overtime shift’, ‘excess shift’ and ‘additional day worked’ are interchangeable. In the event it is not possible to work the ‘excess’ shift after it has been posted, the Driver can seek to swap it with another Driver. However, ordinarily if the excess shift has been rostered, then the Driver must attend for the shift.

[21] In re-examination, Mr Healey clarified that the 13 July 2015 shift did not become an overtime shift until the end of the fortnight (25 July 2015). He described it as a ‘pre-rostered’ shift and it was not an overtime shift at the time it would ordinarily have been worked.

Mr Robert Newham

[22] Prior to commencing employment with the Union in 2008, Mr Newham had worked as a Driver for State Rail since 1985.

[23] Mr Newham described the construction of the Master and Period Rosters and said that all known available work is posted on the Period Roster. The Train Crews actually operate to the Period Roster rather than the Master Roster. Mr Newham also described the requirement for Drivers to work one of their Book Off days a fortnight for alternative work. Drivers often leave more than one day open in order to accept additional work. In most cases, additional shifts are formalised on the Period Roster, but Drivers can be called out at short notice to cover a sick Driver or in other urgent circumstances. Once an additional shift is posted on the Period Roster, it becomes known work and must be worked by the Driver.

[24] Mr Newham believed that the words in cl 27.8(j) ‘if work was available’ is a reference to all known, available work as displayed on the Period Roster, rather than the Master Roster. As so described, Mr Healey was entitled to be paid ordinary rates for the shift on Monday 13 July 2015.

[25] In cross examination, Mr Newham agreed that there is no reference in the employer’s policies, procedures or manuals of leave being paid for an ‘excess’ or overtime shift. He also agreed that in the event of a Driver being unable to work on an overtime shift, various options are available, such as swapping shifts or taking a leave day. However, this is more difficult in small depots, where such options can be limited.

[26] Mr Newham said that his belief about the interpretation of the Special Leave provisions came from the terms of the Agreement itself.

Mr Peter Styles

[27] Mr Styles has been employed by NSW Trains since July 2013, having earlier held senior human resources and industrial roles at Qantas, Westpac, Fairfax and News Limited. In his present role, he has key responsibilities for:

(a) the negotiation of enterprise agreements;
(b) advising on workplace disputes relating to the interpretation of enterprise agreements; and
(c) managing staff.

[28] Mr Styles set out the operations of NSW Trains and the recent negotiations for the Agreement. Mr Styles described the processes for developing timetable, schedules and employee rosters and his understanding of the processes for developing the Master and Period rosters. He added that 72 hours before the start of a roster on a particular day, the roster for that day may be further refined and amended to take account of Driver illness or other urgent leave requests.

[29] Mr Styles set out the processes for dealing with Special Leave requests according to cl 27.8 of the Agreement. He highlighted the role of the Payroll Team in utilising the Payroll Manual to ensure that employees receive their ordinary earnings in circumstances where they have not attended work on account of special situations or incidents. Mr Styles was unaware of any Special Leave requests made in relation to an overtime or ‘excess’ shift.

[30] Mr Styles said that in the last two and a half years, there were only two occasions which resulted in claims under cl 27.8(j) of the Agreement. In April 2015, there were severe floods in the Newcastle and Mid-North Coast areas. Employees had made claims under cl 27.8(j) of the Agreement. As per the standard practice, claims were made only for ordinary shifts and not for ‘excess’ shifts. As a result, the employees suffered no detriment, as they were paid their guaranteed ordinary pay and not debited any other leave entitlement.

[31] Mr Styles said that similarly, if an employee was to withdraw from an ‘excess’ shift for urgent or personal reasons, no deduction would be made for annual leave or personal leave. This is because the shift was an ‘excess’ shift, additional to the ordinary shifts and was not a guaranteed shift.

[32] In cross examination, Mr Styles said he was not aware that during the April 2015 floods, the Special Leave provisions did not apply as the Guaranteed Payment provisions applied because the issue was not that the Drivers could not get to work, rather that the train services had been cancelled.

[33] Mr Styles did not agree with a proposition that sick leave is paid on ‘pre-rostered’ shifts.

SUBMISSIONS

[34] In written submissions, Ms Epps, noted that Special Leave is not regulated under the National Employment Standards or the Rail Industry Award 2010. Special leave is paid leave, but does not accumulate. Ms Epps said to be eligible for Special Leave, there has to be an inability to attend for work and the work needs to be ‘available’. The sub-clause does not exclude ‘excess’ or additional work in the Period Roster.

[35] In respect to Mr Healey’s circumstances, Ms Epps said that the work was ‘available’ and his attendance was mandatory. There is nothing to suggest that the clause should be read down to be limited to the Master Roster. The sub-clause does not differentiate between different types of mandatory rostered work or different types of shifts.

[36] In summary, Ms Epps submitted that:

a) An overtime shift is one that attracts an overtime shift penalty; that is, any shift that exceeds the ninth shift on a short fortnight or the tenth shift on a long fortnight (Drivers work a nineteen day month which recognises one Accrued Day Off, or ADO, per month).
b) A shift which is displayed on the Period, but not on the Master Roster is more commonly referred to as an ‘excess’, ‘additional’ or ‘pre-rostered’ shift. Once a shift is displayed on the Period Roster it is guaranteed, known work and therefore an available shift with a mandatory obligation to attend.
c) Clause 27.8 (j) of the Agreement states that ‘employees who are unable to attend work because of a natural disaster (e.g. flood or bushfire) are eligible for special leave, if work was available.’
d) Any Driver who is rostered for a shift on the Period Roster – regardless of whether or not that shift be posted on the Master Roster as well – is entitled to payment for that shift should they be unable to attend work, due to a natural disaster.

[37] Ms Epps detailed how Drivers obtain work in accordance with the:

• Drivers Rostering and Working Arrangements (2009); and the



• Transfer and Roster Placement Policy (2003).

[38] Ms Epps further described the definitions and applications of the Master Roster, the Period Roster and the requirement for Drivers to leave at least one of their Book Off days available for work as an ‘excess’ shift. She stressed that the Train Crew operates to the Period Roster and not the Master Roster, because the former contains all known work as well as all known alterations to both shifts and sign on times, RDOs, ADOs and Book Off Days.

[39] Ms Epps relied on the rostering and hours of work provisions in the Locomotive Enginemen’s Award 1966 and the definitions of ‘per day’ and ‘per week’. Ms Epps claimed these definitions supported the Union’s case that payment is based on the Period Roster and not the Master Roster.

For NSW Trains

[40] In written submissions, Mr Wood put that Mr Healey had been correctly paid for the following reasons:

(a) the decision about whether to pay a claim made under cl 27.8(j) is at NSW Trains' determination once the natural disaster event occurs;
(b) Special Leave is provided to employees to act as a safety mechanism to ensure that, in circumstances where they seek to participate in certain community activities, or are subject to public or natural emergencies, they maintain their ordinary pay;
(c) payment of the Special Leave in such circumstances would result in an inherently unfair outcome, in the sense that NSW Trains would be required to pay two employees overtime rates for a shift requiring only one employee attend for work; and
(d) NSW Trains' definition of Special Leave, as set out in the Payroll Manual and reproduced in Mr Styles' witness statement.

[41] Mr Wood referred to the decision in Australasian Meat Industry Employees’ Union v Golden Cockerel Pty Limited[2014] FWCFB 7447 (‘Golden Cockerel’) in interpreting cl 27.8(j) of the Agreement.

[42] In oral submissions, Mr Wood responded to the Union’s position as to the treatment of the shift not worked on 13 July 2015, by reference to cl 111 of the Agreement dealing with Overtime Hours of Work. He noted that employees work a 38 hour week, 76 hour fortnight over 9 or ten shifts. An ‘excess shift’ is a shift worked in excess of the nine or ten shifts and attracts overtime. Mr Wood described what happened to the shifts on the Period Roster for the days in question. Up to the posting of the Period Roster, Mr Healey was marked on the Master Roster as having 13 July 2015 off. Mr Wood said that it is the nature of the shift which triggers the overtime payment. It was a nonsense to suggest that until you get to the end of the fortnightly roster, all the roster days are ordinary days. Drivers know what their ordinary shifts are and what their ‘excess’ shifts are. It is common sense that paid leave is not paid at overtime rates and there was no policy or procedure document which the Union could point to which said otherwise.

[43] Mr Wood emphasised that the relevant clause in the Agreement applies to all employees covered by it and is not Driver specific. The fact that a Driver may have rostered overtime and a Clerk Grade 2 does not, is not relevant. The clause must operate in the same way for all employees. Mr Wood relied on the payroll document, which expressly states that ‘paid special leave is only paid for ordinary rostered shifts lost at single rates.’

[44] Mr Wood referred to the history of the Special Leave provisions from their introduction in 2008. Since that time, there has been a practice of not paying Special Leave for overtime shifts not worked. He identified other forms of Special Leave which, while using different words, also expressly state that such leave is paid at the base rate of pay; e.g. blood donations, Court appearances, jury duty.

[45] Mr Wood criticised the Union’s interpretation of the words ‘if work was available’ by noting that natural disaster Special Leave also applies if the work is not available. The eligibility for the leave is not a roster issue, but arises from a natural disaster. It is not derived from a rostering context which is a concept well accepted and understood by the Drivers.

[46] Mr Wood described it as ‘odd’ that when paying employees to fight a bushfire, they are paid ordinary rates, but if an employee cannot get to work because of a natural disaster, they could be paid overtime rates on a shift in excess of their ordinary hours.

[47] In reply, Ms Epps characterised the crux of this dispute as not whether the rostered shift was an overtime shift, but rather whether Special Leave should be payable on shifts posted on the Period Roster. It is a non-discretionary payment if the criteria are met, as they were in Mr Healey’s case. Ms Epps added that once a shift is offered to a Driver and it is accepted, it is displayed on the Period Roster and it becomes guaranteed work.

[48] Ms Epps also relied on a 1971 payroll manual, which expressly stated that sick leave and other forms of leave are on the Period Roster.

[49] In oral reply submissions, Ms Epps drew a distinction between a ‘pre-rostered’ shift and an ‘excess’ shift. An excess shift is one in excess of nine or ten days in the fortnightly roster cycle. It does not become an overtime shift unless the hours are exceeded at the end of the fortnight and remains an ordinary rostered (‘pre-rostered’) shift until that point.

[50] Ms Epps emphasised that all known work, alterations, cancellations, etc. are posted on the Period Roster. Ms Epps said that the Special Leave provision specifically covers employees unable to attend for work. This was not the case during the Hunter floods, where services were cancelled and employees found alternative duties.

[51] Ms Epps further submitted that there is no consistency of leave treatment for all employees. Payments are made differently to different classifications.

CONSIDERATION

[52] The logical starting point for the consideration of this matter is by way of reference to the legal principles to be applied in respect to the interpretation of an enterprise agreement. These principles have developed from a long line of authorities dealing with the interpretation of industrial instruments generally; See: Kucks v CSR Ltd (1996) 66 IR 182and Short v FW Hercus Pty Ltd (1993) 46 IR 128; [1993] FCA 72,and were recently set out by the Full Bench of the Commission in Golden Cockerel. At para [41], the Full Bench distilled the principles 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;

(c) evidence of matters in common contemplation and constituting a common assumption.

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].’

[53] In my view, the principles at points 7 and 8 of the Full Bench’s summary are particularly apposite to this dispute. In other words, what is the context and purpose of cl 27.8(j) – Natural Disaster Leave, having regard to the text of the Agreement as a whole and the context of the sub-clause, given its interaction with other provisions of the Agreement? See also: Watson v Department of Disability Housing and Community Services (ACT) (2008) 171 IR 392 at 8-14 and Grabovsky v United Protestant Association of NSW Ltd [2015] FWC 2504.

[54] It must be stressed that the interpretative exercise begins with a determination of whether the words in cl 27.8(j) 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 the plain meaning. Also relevant here is that the interpretative task does not involve rewriting the clause or adding words to it to achieve a fair or just outcome.

[55] It is pellucidly clear that the Agreement does not expressly provide for the payment of Special Leave on an ‘excess’ or ‘overtime’ shift not worked due to a natural disaster. On one view, the Agreement might be said to be silent on the subject. On the other hand, given there was no evidence of Special Leave ever being paid in such circumstances, it might well point to a conclusion that it was the mutual intention of the parties, when Special Leave was first introduced in 2008, that it would not be paid (either at overtime or ordinary rates) on unworked ‘excess’ shifts.

[56] That said, as I understand the Union’s case, it argued that:

• 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.

[57] Having considered the helpful submissions of both parties and applying the principles as set out in Golden Cockerel, I am unable to accept the Union’s interpretation of cl 27.8(j) of the Agreement for the following reasons.

[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.

[65] Seventhly, not only is reliance on the terms of the 1966 Locomotive Engineman’s Award a rather ‘long bow to draw’, given such terms applied 50 years ago, but the provision of natural disaster relief as Special Leave was only formally introduced into an industrial instrument in 2008. In my view, the 1966 Award offers no guidance as to how a relatively new provision should be interpreted under the Agreement. Similarly, reliance on a 1971 Payroll document is misconceived because it is well out of date and, in any event, only applied to Diagram Enginemen.

[66] Eighthly, despite Mr Healey’s and Mr Newham’s belief as to the interpretation of cl 27.8(j), the Union could not provide a single instance or example in which NSW Trains had paid Special Leave on an ‘excess’ shift not worked. That said, as I consider Mr Healey’s and Mr Newham’s evidence to be their subjective views, such evidence is impermissible in the interpretative exercise; See: Golden Cockerel, para [41] at point 9. Wisely, Ms Epps did not go so far as to suggest that there was a ‘common understanding’ or ‘custom and practice’ as to such payments; See: Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226; [1986] HCA 14 and SCA Hygiene Australasia v Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Anor [2014] FWC 249.

[67] Ninthly, in my view, the eligibility for Special Leave arises from the purpose of the provision – to protect an employee’s ordinary rate of pay arising from a natural disaster, resulting in the employee being unable to attend for work. It is a creation of the intent and purpose of the clause. When viewed in this way, reliance on the words ‘if work was available’ is misguided. This is so because there may well be circumstances (regrettably) in which no work is available due to a natural disaster. In other words, the clause must be seen in its own context and not given a context related to rostering; an entirely different provision unrelated to the Special Leave provisions.

[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.

[69] For the aforementioned reasons, I am unable to accept the Union’s interpretation of cl 27.8(j) of the Agreement. Specifically, I find that Special Leave under cl 27 of the Agreement is not payable on an ‘excess’ shift not worked during an employee’s Period Roster. Accordingly, Mr Healey has no entitlement to the payment of Special Leave for Monday 13 July 2015 when he was unable to attend for work due to a natural disaster. The matter is concluded on that basis.

DEPUTY PRESIDENT

Appearances:

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

Mr A Wood, Solicitor and Mr N Hill, Solicitor for NSW Trains.

Hearing details:

2015:

Sydney,

3 December.

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