Australian Rail, Tram and Bus Industry Union v Pacific National Services Pty Ltd T/A Pacific National
[2024] FWC 473
•22 MARCH 2024
| [2024] FWC 473 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Australian Rail, Tram and Bus Industry Union
v
Pacific National Services Pty Ltd T/A Pacific National
(C2023/6107)
| DEPUTY PRESIDENT CROSS | SYDNEY, 22 MARCH 2024 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
The Australian Rail, Tram and Bus Industry Union (the RTBU/ the Applicant) made an application pursuant to s.739 of the Fair Work Act 2009 (the Act) in relation to a dispute arising under the Pacific National Bulk Rail NSW Enterprise Agreement 2022 (the Agreement) with Pacific National Services Pty Ltd T/A Pacific National (PN/the Respondent).
The matter was listed for conference, however the matter was not able to be resolved and the parties sought the arbitration of the matter. Directions were issued for the filing of material and the matter was listed for Hearing. In the Hearing, the RTBU was represented by Ms Mbele, and PN was represented, with permission, by Mr Izzo of Australian Business Lawyers and Advisors.
The dispute was in regard to the ability, or lack thereof, of PN to lift-up or lay-back employees working a blankline roster in a manner that has the effect that the commencement of their rostered shift after an RDO will move outside their allocated time zone. The concepts of lift-up, lay-back and blankline rosters are concepts peculiar to the Rail industry, and are explained by the entries under the headings Relevant Provisions of the Agreement and Background outlined below.
In line with the directions, the following questions for Arbitration were posed:
The RTBU Question: For employees working to a Blankline Roster, does clause B6.1(g) require a shift to actually commence within the Time Zone indicated on the Master Roster?
The PN Question: Can Pacific National lift-up or lay-back an employee returning back after an RDO in a manner that has the effect that the commencement of their rostered shift will move outside their allocated time zone stipulated in clause B.6.1(g)?
Relevant Provisions of the Agreement
The dispute centres on the Roster Guidelines under the Agreement (the Roster Code). Specifically, it concerns an interpretation of clauses B6.1(a) to (g) of the Roster Code, which provide:
B6 ROSTERING GUIDELINES
B6.1 Master Rosters
(a) A Master Roster shall be exhibited primarily for the purpose of indicating rostered days off (RDO’s) and any known work and to meet the operational requirements of the business having regard to fatigue principles.
(b) Pacific National Bulk Rail in consultation with the local rostering committee where formed, will develop and modify Master Rosters consistent with operational and business requirement.
(c) The number of Pacific National Bulk Rail initiated Master Roster changes shall not exceed four (4) in any twelve (12) month period, unless there is a specific business requirement. Where there is a business requirement to exceed 4 changes formal consultation will occur with the depot.
(d) Where a change to a Master Roster is proposed, formal consultation will commence at least twenty-eight (28) days prior to the intended implementation date of the new Master Roster.
(e) Following the consultation, the final Master Roster is to be posted fourteen (14) days in advance of its introduction.
(f) Any changes to the Master Roster which do not impact on an Employee's RDO will not constitute a Master Roster change.
(g) Blankline Master Rosters will indicate timezones where the shifts will commence upon returning from an RDO only. The timezones will be as follows:
i. Time Zone One: 0600-1500
ii. Time Zone Two: 1500-2359
iii. Both parties agreed that that the Employee may not be required to work, after an RDO.
…
Other provisions of the Agreement are also relevant. They are:
(a)Clause B6.4(c) and (d)
Subclause 6.4(c) identifies that each RDO commences from 0001 and concludes at 0600 the following day, as follows:
(c) Defining the dimensions of RDO’s
(i) RDO’s will commence from 0001 and conclude at 0600 the following day, each additional day will be in blocks of twenty-four (24) hours duration following the duration of the initial RDO at 0600 hours.
(i) This may be altered during the development of the roster or in consultation and agreement of the Employees working the roster, but shall not be less than thirty (30) hours.
Subclause 6.4(d) then provides as follows:
(d) From time to time train running may infringe an RDO, where this occurs consultation and agreement with the individual must be sought and any infringement of an RDO will attract an additional payment at the rate of point eight (0.8) of the Employee’s Base Rate.
(b) Clause B6.8 Exception
(a) With the exception of the circumstances within clause B6.6 Forecast Rosters and clause B6.7 Blankline Rosters when a subsequent change is required the following will apply:
(b) The sign-on for any new or altered work must be within the lift-up and lay-back thresholds, when applied to the original shift; and
(c) Alternative or new work may be provided, where possible (subject to the Lift-Up or Lay-Back Penalty being paid pursuant to clause B11.6, where applicable);
…
(c) Clause B10.1
“Next turn of duty will be in accordance with the starting time shown on the Master Roster, the Working Roster, the Daily Work Plan or advice period, subject to any lift- up or lay-back adjustment.”
(d) Clause B10.10
Clause B10.10 titled “Call Time Advice” provides:
(a) Employees will be called via their nominated phone number to be advised of their start time for shifts relating to train operations.
(b) It is the responsibility of the Employee to advise the appropriate telephone number to facilitate a call to sign on duty during the Employee’s nominated call period (or default call period of 1-hour if the Employee does not nominate a call period).
(c) For home base sign on, Employees shall nominate a set time limit (call time) within each of the following periods;
(i) Day Period 0800 to 1959
(ii) Night Period 2000 to 0759
(d) The call time is a specified number of minutes until the Employee is required to present for work. For clarity, the call time may be different for the Day Period and Night Period.
(e) For barracks location sign on, Employees will nominate a call time which may vary shift by shift.
(f) The period of time nominated by the Employee in (d) must be reasonable taking into account where they reside, family responsibilities and normal travel time and reflect the amount of time actually required by the employee before the commencement of their next shift to prepare and present for their shift at the required time. The Employee must exercise their discretion honestly and reasonably.
(g) If the Employee’s shift is altered by way of lift-up or lay-back, the Employee’s call time will be based on:
(i) In the case of Lift-Up: the Employee’s amended start time (Lift-Up clause B11)
(ii) In the case of Lay-Back: In the Day Period, the Employee’s original start time; and in the Night Period, the Employee’s amended start time (Lay-Back Clause B11).
(h) An Employee’s start time cannot be altered once the advice call has been made.
(i) The call will be by contact from the planning team, via an automated device or another Pacific National representative.
(j) An Employee must be available to take such calls and confirm the advice.
(e) Clause B11
Clause B11 explains the lift-up and lay-back thresholds, as follows:
B11 LIFT-UP AND LAY-BACK
B11.1 At home location, Train Crew must be contactable to allow for a two (2) hour lift-up and a four (4) hour lay-back.
B11.2 It is expected that crews will be called to sign on duty as required at resting locations. Lift-up and lay-back thresholds will apply from the confirmed sign on time at the rest location.
B11.3 Blankline Rosters (a) Pacific National Bulk Rail may make changes subject to lift-up and lay-back parameters which will be next advised at the Employee’s call time.
Background
Minimal evidence was led by the parties. That evidence was primarily regarding the manner in which blankline rostering occurred, as opposed to forecast rostering.
The catalyst for the dispute was the individual circumstance of Mr Gerstenmeir, a Locomotive Driver for PN. Before attending his shift on 20 June 2023, he was advised that he would start work in time zone 1 (after 6.00am) at 14.45, however during his advice call, he was requested to commence his shift outside that allocated time zone, and at 15.15.[1] Mr Gerstenmeir conceded that change had no effect on fatigue management.[2]
Clause B6.1, titled 'Rostering Guidelines', deals firstly with the master roster, and provides that there is a master roster exhibited primarily for the purpose of indicating RDOs. The master roster doesn't tell employees when the shift is that they are working, or whether it will be forecast working or blankline. Employees don't necessarily have the shift times, but they know when they will be rostered off.
There are limitations on how the master roster can be changed, and it can only be changed up to four times a year (Clause 6.1(c)), with 28 days formal consultation (Clause 6.1(d)).
Where there is an ability to forecast and employees are doing a working roster, the roster needs to be posted nine days in advance of the Sunday where the week will start (Clause B6.2). That notice does not apply to blankline workers.
Around 30 hours in advance of the work to be performed, a daily work plan is generated (Clause B6.3). The daily work plan is given the day before the shifts are due and needs to be posted by 17.30 hours on each day, and will contain advice for at least the following shift/s up to 0600 hours the subsequent day.
The next notification point is the call time (Clause B10.10). Employees will be called on their nominated phone number to advise of the start time for shifts relating to train operations. Notwithstanding that they had a daily work plan, employees are told only 10 or 15 hours before, when they will actually start.
At the call time, employees can be called and told they are to be lifted up or laid back. That phone call finally tells employees after all the rostering when they are actually going to work, and at the time when the phone call is made, lift-up and lay-back can occur (Clause 10.10(g)). It talks about the shift being altered by way of lift-up or lay-back, and it talks about the call time being based on being shifted depending on the lift-up/lay-back. Once employees are called and told they are starting, the start time cannot be altered thereafter (Clause 10.10(h)).
Lift up and lay back are limited to a two hour lift-up and a four hour lay-back (Clause 11.1). This is the lift-up/lay-back. At their home location, employees must be contactable to allow for a two hour lift-up and a four hour lay-back.
The RTBU led evidence of employees at some depots rejecting requests from PN to change allocated time zones unless there is an agreement to pay overtime.[3]
Submissions
(a) RTBU Submission
The RTBU acknowledged that the Agreement provides for a master roster in each depot which displays all employees’ rostered days off (RDO) and any known work or tasks for that depot, and that employees can work to a forecast roster where their indicative sign- on/off and shift lengths are recorded, or alternatively a blankline roster where no known work is indicated.
The RTBU contends the effect of clause B6.1(g) is that blankline employees returning from an RDO are only to commence their shift in their allocated time zones and any lift up/lay back changes must result in a start time within that zone.
The RTBU submitted the principles of construction and interpretation of enterprise agreements are well established and not controversial and referred to the decision of the Full Bench in AMWU v Berri Pty Limited(Berri).[4] The task of interpretation was submitted to be the ascertainment of the common intention of the parties, deriving the objective views of what a reasonable person would understand by the language used in the enterprise agreement. The first step involved considering the ordinary meaning of the words, with a determination on ambiguity relevant to that process.
The RTBU submitted the words used at clause B6.1(g) give rise to a plain and ordinary meaning as follows:
'Commence’ is the operative verb, which has a plain and commonly understood meaning of beginning. ‘Will’ is another plainly understood word that qualifies the verb with mandatory language. Given the ordinary definitions of the words used, it can be construed that the purpose of clause B6.1(g) is to ensure blank line employees actually begin their shift within the range of time in the relevant zone, when returning from an RDO.
On a plain construction of the Agreement, it cannot be derived from the phrase “will commence” that a shift can start outside an allocated time zone. There is nothing in the construction of clause B6.1(g) which would support the notion that commencement of shifts is fluid between the time zones. Such a construction would rob the clause of utility.
Further the word ‘will’ as defined in the Cambridge dictionary is used to indicate matters of “certainty” or matters that “must take place”, and it is well accepted that the ordinary use and meaning of the word “will” conveys obligations in legal instruments.
Thus, the phrases “will commence” and “time zones will be as follows” are not ambiguous. The phrases provide certainty on the process that must take place in the creation and application of a Master Roster.
It cannot be supported on plain reading that; a circumstance or exception may arise where an employee’s allocated time zone could be circumvented. Rather, the clause only considers that, employees may not be called to duty upon returning from an RDO if the requirements of the clause do not align with operational realities. As further elaborated later in these submissions, such an outcome is entirely consistent with the purpose of the clause a fatigue management tool.
If the clause was intended to be subject to other provisions of the Agreement, than it would have said so. Instead, its requirements are expressed in mandatory language without qualification. The RTBU contends that the plain language of the clause invites only one meaning, there is no ambiguity or uncertainty.
Regarding the interaction of clause B6.1(g) with the whole of sub-division B6 and the Agreement, the RTBU submitted that Clause B6.8 outlines all the exceptions that apply to clauses within the sub- division, and no exception is created to the obligations set out at clause B6.1(g), and the exceptions in Clause B6.8 are qualified by the obligations set out at clause B6.1(g).
While acknowledging that that post agreement conduct amounts to little more than the absence of a compliant or common inadvertence that may be insufficient to establish a common understanding,[5] the RTBU submitted that the evidence of employees at some depots rejecting requests from PN to change allocated time zones unless there is an agreement to pay overtime was post-agreement practice regarding commencement of shifts in allocated time zones, and would allow a conclusion that the parties understood the obligatory nature of the time zones, and there was some form of mutual intention.
The RTBU submits that the answer to the RTBU question is ‘yes’, and consequently, the answer to the PN question 2 is ‘no’ .
(b) PN Submission
PN agreed with the RTBU Submissions regarding the principles applicable to interpreting the Agreement, and that the relevant principles are outlined in Berri, and highlighted that when an agreement is construed by reference to the ordinary meaning of the words used in that agreement, the meaning of those words are to be considered in context, and language should not be considered in isolation from the context in which the words are used. Context includes consideration of the text of the agreement viewed as a whole, the disputed provision’s place and arrangement in the agreement, and the legislative context under which the agreement was made and operates.
Further, PN submitted that well settled principles of construction pertaining to enterprise agreements also caution that impractical interpretations of industrial instruments “divorced from industrial realities”, and meanings which avoid “inconvenience or injustice” should be preferred or may reasonably be strained for.[6]
Read in isolation, the clause B6.1(g) appears to identify the timezone from when a shift “will commence”, upon an employee returning from an RDO. However, there are some clear express and contextual caveats regarding how clause B6.1 operates. They are:
(a) The first caveat on B6.1’s operation is clause B6.8, titled “Exception”. The effect of clause B6.8 is to identify that, notwithstanding the clauses that preceded it (other than B6.6 and B6.7), changes may be made to rostered working times provided that lift-up and lay back thresholds are observed;
(b) The second caveat is clause B11, which confers an express entitlement on PN to change rostering for Blankline Rosters in accordance with the lift-up and lay-back time thresholds;
(c) The third caveat is clause B10.1, that identifies that an employee’s next turn of duty will be as per the starting times identified in the Master Roster, subject to any lift- up or lay-back; and
(d) The fourth caveat is submitted to be a contextual caveat arising from Subclauses 6.4(c) and (d) which allow RDOs to be infringed. The clause expressly contemplates that, although an employee may be scheduled to return to work in a particular Time Zone, this return can be changed, such that it might infringe an RDO. Where an RDO is infringed, the EA spells out the type of consent required and the penalty that applies.
PN submitted that having regard to the express caveats in clauses B6.8, B6.11 and B10.1 as well as the contextual considerations identified at clause B6.4, it is plainly apparent that lift-up and lay-back changes can be applied to shifts that commence after an RDO, just as lift-up and lay-back changes apply to all other types of shifts.
Regarding the RTBU submission focussing on the phrase “shifts will commence” as a mandatory directive that all shifts must commence within the timezones specified without exception, PN referred to subclause B14.3(i) which provides that “The commencement time of a shift of ordinary hours will be as per the posted Master Roster or Working Roster”, and submitted that it could not sensibly be submitted that lift-up and lay-back do not apply to shifts identified in the Master Roster or Working Roster. The mere reference in the Agreement to when a shift “will commence” does not necessarily impose a mandatory directive that has no exception.
Finally, PN submitted that the subjective understanding of one party involved in negotiating an agreement was expressly the subject of consideration in Berri, where the Full Bench held that such evidence cannot be had regard to in construing an enterprise agreement.[7]
Pacific National submitted that the questions should be answered as follows:
PN Question: Can Pacific National lift-up or lay-back an employee returning back after an RDO in a manner that has the effect that the commencement of their rostered shift will move outside their allocated time zone stipulated in clause B.6.1(g)?
Answer: Yes, provided that the lift-up or lay-back falls within the threshold identified in subclause B11.1. Where a lift-up impinges on an RDO, this is also permitted, however, the additional requirements of subclause B6.4(d) must be met if the lift-up crosses over into an RDO.
RTBU Question: For employees working to a Blankline Roster, does clause B6.1(g) require a shift to actually commence within the Time Zone indicated on the Master Roster?
(a) Answer: No.
Consideration
In Berri, the Full Bench summarised the approach to be adopted with respect to the interpretation of enterprise agreements, as set out:
“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:
1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i) the text of the agreement viewed as a whole;
(ii) the disputed provision’s place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which it operates.
2. 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.
3. The common intention of the parties is sought to be 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, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
(i) 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;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common assumption.
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”
This matter has involved contention between the parties as to the primacy and weight to be accorded to the words “will commence” in clause B6.1(g), as against the context particularly involving the text of the Agreement as a whole, and clause B6.1(g)’s place and arrangement in the Agreement. The RTBU has preferred an approach that has given limited scope to context, whereas PN has advanced a submission that has relied on the text of the Agreement as a whole in informing context.
I consider that the interpretation that places some mandatory prescription on the words “will commence upon returning from an RDO only” in a particular time zone outlined in the master roster in clause B6.1(g) fails to consider the text of the Agreement viewed as a whole and the place of clause B6.1(g) in the Agreement.
Clause 6 has the encompassing heading “Rostering Guidelines”. While Clause 6.1 deals with master rosters, other sub-clauses deal with other concepts such as working rosters, daily work plans and roster changes. Clause 6.8 then provides an “Exception” to the terms that have preceded it and provides “The sign-on for any new or altered work must be within the lift-up and lay-back thresholds, when applied to the original shift” (Clause B6.8(b)).
Clause B11 deals with lift-up and lay-back, requiring “Train Crew must be contactable to allow for a two (2) hour lift-up and a four (4) hour lay-back”. Specifically regarding blankline rosters, Clause B11.3(a) provides an unqualified right subject to lift-up and lay-back parameters:
(a) Pacific National Bulk Rail may make changes subject to lift-up and lay-back parameters which will be next advised at the Employee’s call time.
However, not only is the above provision unqualified in its expression of the ability of PN to make changes within parameters, but it also notes the timing of such changes being “at the Employee’s call time”. The point in time at which the Agreement allows lift-up and lay-back is well after the time of the formulation of the Master Roster, and at the time of the Call Time Advice (Clause B10.10). Importantly, an Employee’s start time cannot be altered once the advice call has been made (Clause B10.10(h)).
The circumstance where infringement on an RDO occurs, and a consequential penalty payment accrues, is also specifically dealt with at Clause B6.4(d).
Further contextual support for the unqualified right to lift-up and lay-back subject to parameters is afforded by Clause 10.1, that outlines in clear and plain terms:
“Next turn of duty will be in accordance with the starting time shown on the Master Roster, the Working Roster, the Daily Work Plan or advice period, subject to any lift- up or lay-back adjustment”
In Mr Gerstenmeir’s circumstance, he had been advised that he would start work in time zone 1 (after 6.00am) at 14.45, however during his advice call, he was requested to commence his shift outside that allocated time zone, and at 15.15. That change was permitted by Clauses B6.8(b) and B11.3(a), and as Mr Gerstenmeir conceded, had no effect on fatigue management.
Conclusion
The questions posed are answered as follows:
(a) RTBU Question: For employees working to a Blankline Roster, does clause B6.1(g) require a shift to actually commence within the Time Zone indicated on the Master Roster?
Answer: No.
(b) PN Question: Can Pacific National lift-up or lay-back an employee returning back after an RDO in a manner that has the effect that the commencement of their rostered shift will move outside their allocated time zone stipulated in clause B.6.1(g)?
Answer: Yes, provided that the lift-up or lay-back falls within the threshold identified in subclause B11.1. Where a lift-up impinges on an RDO, this is also permitted, however, the additional requirements of subclause B6.4(d) must be met if the lift-up crosses over into an RDO.
DEPUTY PRESIDENT
Appearances:
Ms S. Mbele for the Applicant.
Mr L. Izzo, Representative (Australian Business Lawyers and Advisors) for the Respondent.
Hearing details:
21 February 2024.
Sydney.
In-Person.
[1] Transcript PN 69 to 72.
[2] Transcript PN 73.
[3] Transcript PN 111.
[4] [2017] FWCFB 3005.
[5] Berri at [114.15].
[6] City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 378-9, Workpac Pty Ltd v Skene (2018) 280 IR
191 at [197]; Kucks v CSR Limited [1996] IRCA 166, (1996) 66 IR 182
[7] Berri at [62] and [114.11].
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