Australian Rail, Tram and Bus Industry Union v Sydney Trains
[2022] FWC 1339
•27 MAY 2022
| [2022] FWC 1339 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Australian Rail, Tram and Bus Industry Union
v
Sydney Trains
(C2021/8216)
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
Sydney Trains
(C2021/8684)
| DEPUTY PRESIDENT EASTON | SYDNEY, 27 MAY 2022 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – interpretation of clause 97 – on-call allowances – Rail Emergency Training Recovery Unit – determination of entitlements payable for shift patterns.
There is a dispute about the interpretation of clause 97 of the Sydney Trains Enterprise Agreement 2018 and the payment of certain on call allowances. Workers in the Rail Emergency Training Recovery Unit are rostered to work ordinary hours from 6:00am to 2:00pm on weekdays and are on call at all other times of the week. The dispute centres upon whether such workers are entitled to receive the ‘day and night’ on call allowance when they are on call from 2:00pm until 6:00am on weekdays, or only the ‘night’ on call allowance.
For a long time Sydney Trains has only paid the night on call allowance, but the Australian Rail, Tram and Bus Industry Union (RTBU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) now argue that the day and night on call allowance is payable. In short, the Unions argue that if a worker is on call in the daytime and then remains on call in the night, then they must receive the ‘day and night’ allowance. Sydney Trains argues that if a worker works a dayshift and is then on call until the next morning, then they are only entitled to the night on call allowance.
Interpretation Principles (General)
In AMWU v Berri Pty Limited[1] (“Berri”) the Full Bench distilled the following principles for interpreting enterprise agreements:
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.
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.
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.
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.
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.
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.
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.
Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
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.”
Federal Court authorities endorse substantially the same approach. The Full Court in Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services Pty Ltd[2] said at [8]-[9]:
“The applicable principles for interpreting an enterprise agreement were recently recounted by a Full Court in WorkPac Pty Ltd v Skene [2018] FCAFC 131 (Tracey, Bromberg and Rangiah JJ) at [197]:
The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 378 (French J). The interpretation “... turns on the language of the particular agreement, understood in the light of its industrial context and purpose ...”: Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378–9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).
The reference there made to the observations of Kirby J at [96] of Amcor is a reference to his Honour’s remarks that the construction to be given to a clause in an industrial instrument “should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement”.”
Recently the Full Bench in AMWU v Programmed Industrial Maintenance Pty Ltd[3] made the following observations about the “context” in which the words of an agreement are to be understood:
“The construction of provisions of an enterprise agreement begins with a consideration of the ordinary meaning of the words, read in context, taking account of the evident purpose of the provisions or expressions being construed. Context may be found in the provisions of the agreement taken as a whole, or in their arrangement and place in the agreement. The statutory framework under which the agreement is made or in which it operates may also provide context, as might an antecedent instrument or instruments from which a particular provision or provisions might have been derived. The industrial context in which an agreement is made and operates is also relevant. Thus, the language of an agreement is to be understood in the light of its industrial context and purpose, not in a vacuum or divorced from industrial realities. But context is not itself an end and a consideration of the language contained in the text of the agreement being considered remains the starting point and the end point to the task of construction. A purposive approach to interpretation is appropriate, not a narrow or pedantic approach.”
The Agreement and the Dispute
The Sydney Trains Enterprise Agreement 2018[4] (“the 2018 Agreement”) has 162 clauses, divided into 5 sections, as well as 14 Schedules. The 2018 Agreement is binding on Sydney Trains and 7 unions.
Clause 97, which is in Section 3 (Wages Maintenance Grades), is in dispute. Clause 97 is as follows:
"ON CALL ALLOWANCE
97.1. Definition:
“On Call” means an Employee who has been directed by the Employer to be available outside their normal working hours for recall to duty. The Employee must be contactable and available for duty as required.
97.2. An Employee On Call shall be paid an allowance as set out at item 6 of Schedule 3B for a night, as set out at item 7 of Schedule 3B a day, or a total as set out at item 8 of Schedule 3B for a day and a night, except when:
(a)called out for duty and paid under Clause 96 (Call Outs);
(b)required to work planned overtime which attracts the equivalent or greater payment; or
(c)permission is granted to leave the relevant district or section.
Clause 97 refers to Schedule 3B. Schedule 3B lists 32 different allowances, including the following:
| Post approval by FWC | 12 months after approval | 24 months after approval | |
| On Call | |||
| Item 6 Ordinary on Call – Night | $11.05 | $11.38 | $11.72 |
| Item 7 Ordinary on Call – Day | $16.54 | $17.04 | $17.55 |
| Item 8 Ordinary on Call – Day & Night | $27.59 | $28.42 | $29.27 |
Neither clause 97 nor Schedule 3B contain an explanation for the terms “for a night” and “for a day and night”.
Clause 3 of the 2018 Agreement defines “On Call” to mean:
“… an Employee who has been directed by the Employer to be available outside their normal working hours for recall to duty. The Employee must be contactable and available for duty as required.”
In December 2021 the AMWU and the RTBU referred disputes about clause 97 to the Fair Work Commission for conciliation in accordance with clause 8.4 of the 2018 Agreement. Conciliation was not successful. Clause 8.4 of the 2018 Agreement, and s.739 of the Fair Work Act 2009 (“the FW Act”), authorise me to deal with the dispute by way of arbitration (per s.595).
The dispute is centred upon the application of clause 97 to maintenance workers in the Rail Emergency Train Recovery Unit (“RETRU”), although clause 63 is in relevantly identical terms and applies to salaried employees in Section 2.
RETRU workers are rostered to work ordinary hours from 6:00am to 2:00pm Monday to Friday and are required to be on call for all hours outside of these ordinary hours – seven days per week and 24 hours per day.
For as long as anyone can remember, Sydney Trains has paid the ‘night’ on call allowance for the period RETRU workers are on call during weekdays, and paid the “day and night” allowance when on call on the weekend.
The parties agree that the question for determination is as follows:
What entitlements are payable under clause 97 of the 2018 Agreement to employees working the following shift pattern:
| Mon | Tue | Wed | Thurs | Fri | Sat | Sun | |
| Shift | 0600-1400 | 0600-1400 | 0600-1400 | 0600-1400 | 0600-1400 | N/A | N/A |
| On call | 1400-1600 | 1400-1600 | 1400-1600 | 1400-1600 | 1400-1600 | 0600-0600 | 0600-0600 |
Evidence on behalf of the Unions
Mr Keith Lang
Mr Keith Lang is employed by Sydney Trains as a Heavy Plant Technician at its Heavy Plant and Resurfacing depot in Clyde, NSW. He has worked for Sydney Trains and its predecessors since 2003. Mr Lang has been an AMWU delegate since 2014 and was the lead negotiator for the AMWU’s bargaining team during negotiations for the 2018 Agreement. Mr Lang is also the State President of the NSW Branch of the AMWU.
Mr Lang does not recall there being any discussions regarding the on call allowance during the bargaining process for the 2018 Agreement. The 2018 Agreement is currently being re-negotiated and Mr Lang says that discussions about the on call allowance in the current bargaining process has been limited to the quantum of the allowance and not the circumstances in which it is payable.
Mr Lang was cross-examined about bargaining and the creation of logs of claims used for bargaining purposes. For what it is worth, he agreed with the general proposition that if there is no change to the text of a particular clause when renegotiating an enterprise agreement, then voting to approve that agreement amounts to an acceptance that there is no change to the operation of that particular condition.
Mr Gouramanis
Mr Gouramanis has been employed by Sydney Trains in the RETRU for approximately 16 years. Mr Gouramanis explained that for at least 16 years RETRU workers have worked from 6:00am to 2:00pm Monday to Friday and have been required to be on call from when they finish their shift at 2:00pm until they resume on the next working day at 6:00am. Mr Gouramanis also says that if a RETRU employee completes a callout prior to the commencement of their next rostered shift, they are required to immediately be on call again, and do not receive any additional on call allowance for being placed on call again. Mr Gouramanis also said that if RETRU workers are called out to a job then they are allowed a rest period of eight hours before returning to their base workplace.
Mr Gouramanis said that the number of callouts has declined since 2010 because of improvements in train infrastructure and facilities, amongst other things. In his first statement Mr Gouramanis estimated that on average there is currently one callout per week across the RETRU. Upon seeing Sydney Trains’ evidence, he conceded in his second statement that over the last 12 months there were 27 callouts for an average of seven hours each.
Mr Gouramanis says that in 2014 he raised a dispute about what he saw to be the incorrect payment of on call allowances but, he says, he was frequently advised by management that “you cannot receive a penalty on top of a penalty”. He said the dispute in 2014 went no further because he was not a member of the AMWU at the time.
Evidence on behalf of Sydney Trains
Mr Matthew Backhouse
Matthew Backhouse is currently the Manager of Fleet Operations, Engineering and Maintenance and has worked for Sydney Trains and its predecessors for 31 years. Mr Backhouse affirmed most of Mr Gouramanis’ evidence and elaborated upon the arrangements for returning to duty after a callout. In this regard he says:
“Where a member of the RETRU Team is already on a rostered shift and they are assigned to a call-out, the process is simply that the rostered shift is extended and paid as overtime, as opposed to payment of the on-call allowance.
In circumstances where a member of the RETRU Team is recalled to duty, and the period of the call out extends into the start time of their regular rostered shift, the process is that upon completion of the call out, the relevant member of staff is to receive an 8 hour ‘rest time’ break. After completion of the 8 hour rest break, the employee is required to be on-call, they would receive the on-call allowance until their next rostered shift.”
Mr Backhouse took issue with Mr Gouramanis’ evidence that RETRU workers are permanently on call outside of their ordinary hours of work. He clarified that employees have the option to remove themselves from being on call, so long as 6 members of the RETRU team remain on call. He added that “I am aware that the RETRU Team do not wish to move to rostered on call arrangement, particularly as call-outs are less frequent now than in the previous years.”
Ms Christine Georgas
Christine Georgas has been employed by Sydney Trains and its predecessors for over 20 years. She has been in the position of Team Leader for Payroll Team Four since 2018 and held various positions before then including Payroll Officer. Ms Georgas says that:
“In the 20 years in which I have worked with the Respondent within the payroll operations, I have consistently processed the on-call allowance in the same manner as presently.”
Ms Georgas says that such allowances are managed pursuant to the Sydney Trains Payroll Manual, being a manual prepared to assist payroll offices with explanations of the procedural application of conditions of employment pertinent to Sydney Trains. The current Payroll Manual includes the following in respect of clause 97 of the 2018 Agreement:
“The allowance is broken into two types of payment. One is payable for the “night” period and the other for the “day” period. The terminology “night” and “day” does not specifically refer to clock time. “Night” period refers to the rest period between rostered shifts. “Day period refers to the employee’s normal rostered shift hours, but the allowance would only be payable on a day he/she was rostered off duty.”
Ms Georgas also gave evidence about the ‘Blue Book’. The Blue Book was introduced in or around 1982 and is said to be the historical collation of payroll practices for Sydney Trains and its predecessors. Ms Georgas confirmed that the payment and management of the on call allowance has not substantively changed from what was originally contained in the Blue Book, and provided extracts of the book itself.
Ms Georgas says:
“I have applied this consistent practice as outlined above for over 20 years without any deviation, and as far as I am aware without any disputes in relation to the same. I note that there have been various other disputes in relation the application of the on-call allowance, but on in the nature of the present dispute.”
Ms Rachael Kelly
Rachael Kelly is the Manager of Employee Relations for Transport for NSW and has held this position since July 2021. She has held various roles in the Sydney Trains Workplace Relations team since 2013. Ms Kelly agrees that no issues were raised throughout the 2018 Agreement negotiations with respect to the on-call allowance. She says:
“As far as I am aware, and from my review of payroll practices, the manner in which the on-call allowance is currently paid has been consistent for at least 14 years.”
Submissions on behalf of the Unions
In their written submissions the Unions provided a history of the On-call Allowance provision. The following is an extract of the Unions’ historical account:
“The entitlement to an on-call allowance is derived from the Railways Metal Trades Grades Award 1953 (1953 Award). The 1953 Award applied to various predecessor unions that eventually amalgamated to form the AMWU and the RTBU respectively, as well as predecessor bodies that led to the establishment of Sydney Trains.
Until 1982, there was no entitlement to an on-call allowance. On 5 November 1982, the 1953 Award was varied by consent to include, amongst other things, a new clause 17A into Part III of the 1953 Award dealing with on-call allowances payable to employees in railways metal trades grades in New South Wales. The on-call allowance clause has remained in largely the same wording since its insertion on 5 November 1982.
… the same wording (except that the on-call allowance payment increased) all the way up to 2000 when the last variation to the 1953 Award was made.
The Railways Metal Trades Grades Award 2002 (2002 Award) superseded the 1953 Award. The on-call allowance clause remained unchanged since the last variation to the 1953 Award, and was included at cl 35.11 of the 2002 Award …
Clause 10.1 of the Rail Corporation New South Wales Union Collective Agreement 2008 (2008 Agreement) outlined that it prevailed, to the extent of any inconsistency, over various operative awards, including the 2002 Award.
On-call allowances were not dealt with in the 2008 Agreement and, therefore, employees covered by the 2008 Agreement were entitled to receive the on-call allowance by virtue of the 2002 Award.
The RailCorp Enterprise Agreement 2010 (2010 Agreement) replaced the 2008 Agreement, as well as the Rail Industry Award 2010. Clause 104 of the 2010 Agreement dealt with on-call allowances payable to RETRU employees and was drafted in largely synonymous terms to the predecessor on-call allowance clauses.
The inclusion of cl 104, however, was the first time that an employee could receive a ‘day’ on-call allowance, as opposed to only a ‘night’ or ‘day and night’ on-call allowance under the previous industrial instruments…
Clause 97 of the Sydney Trains Enterprise Agreement 2014 (2014 Agreement) is identical to cl 104 of the 2010 Agreement.
An identical clause to that outlined in the 2010 Agreement and the 2014 Agreement is found at cl 97 of the 2018 Agreement.
There is no definition of what constitutes a ‘day’, ‘night’ or ‘day and night’ on-call allowance, or the circumstances in which this allowance is otherwise payable, under the 1953 Award, the 2002 Award, the 2008 Agreement, the 2010 Agreement, the 2014 Agreement, or the 2018 Agreement.”
The Unions’ submission is founded upon the notion that if a worker is on call during a period that is part of the “day”, then they must receive the day on call allowance, and similarly if a worker is on call during a period that is part of the “night”, then they must receive the night on call allowance.
The 2018 Agreement, and predecessor instruments, contained definitions of “night shift” but not “day”. The Unions argue that the notion of a day, therefore, can only be confined to the hours outside of a night shift (because the night shift provisions are the only other available point of reference within the 2018 Agreement).
Where the night shift provisions refer to the hours between 6:00pm and 6:00am, the hours that are not a night shift (6:00am to 6:00pm) must therefore be considered hours in the day.
Consequently, and because ordinary hours for RETRU workers finish at 2:00pm each afternoon, RETRU workers spend four hours on call in the “day” before the “night” commences at 6:00pm.
The Unions’ construction is encapsulated in the following extract from their written submissions:
“Accordingly, the entitlement to an on-call allowance can only be interpreted as being payable by reference to the time of day, whereby a ‘day’ is between the hours of 6.00am- 6.00pm and a ‘night’ is between the hours of 6.00pm-6.00am. In particular, for the purposes of the 2018 Agreement, an employee who is on-call and regardless of duration:
(a) only between the hours of 6.00am-6.00pm is entitled to receive the ‘day’ on-call allowance;
(b) only between the hours of 6.00pm-6.00am is entitled to receive the ‘night’ on-call allowance; and
(c) between the hours of 6.00am-6.00pm and 6.00pm-6.00am (whether separately or continuously) is entitled to receive the ‘day and night’ on-call allowance within a 24-hour period.”
This interpretation is said to be consistent with the ordinary meaning of the term day, which the Macquarie dictionary defines to mean the period between sunrise and sunset in each 24-hour period. In other parts of the 2018 Agreement, day and night are bifurcated, such as in clause 116.2 dealing with broken shifts.
The Unions submit:
“In the absence of any other definitions, the above approach is the only manner in which the references to ‘day’, ‘night’ and ‘day and night’ on call allowances can be construed. To interpret the entitlement to an on call allowance arising under cl 97 of the 2018 Agreement in any other way would be to do so in a vacuum divorced from the ordinary meaning of the words in the 2018 Agreement, as well as its industrial context and history.”
Submissions on behalf of Sydney Trains
Sydney Trains argues that the Unions’ interpretation is contrary to over 40 years of practice and industrial norms. By contrast, says Sydney Trains, its interpretation is consistent with industrial history and practice, as well as the scheme of preceding Awards and sits comfortably in consideration for the purpose for which clause 97 was developed. Sydney Trains says it is evident from the history of the relevant awards and predecessor industrial instruments that the particular wording of the on call allowance has been consistent in its scope for over 40 years.
Sydney Trains argues that:
(a)the proposition that the day is ‘all the time that is not the night’ fails when measured against surrounding provisions in the earlier industrial instruments (relating to the meaning of “night”);
(b)the Unions’ interpretation is at odds with the interpretation found in the Blue Book (used by the Respondent between 1982 and 2010) and the interpretation currently in the Payroll Manual;
(c)the “night” is the period between the end of a day shift and the start of the next day shift. This interpretation is “fit for purpose, historically supported and should be preferred”;
(d)“the decades of conduct between the parties with respect to the consistent application and payment of the on-call allowance is demonstrable of a long-standing and common understanding”; and
(e)the current arrangement “has continued undisturbed and without significant (arguably any) disputation whatsoever.” and “an established practice of this nature, unchanged in 40 years, and consistently applied can be objectively taken to evince a common understanding that the operative clause carries meaning consistent with that practice.”
Consideration
The summary of the relevant principles in Berri[5] provides a helpful order for analysing the matters at hand. I will first consider the ordinary meaning of relevant words in the context in which they appear (Principles 1-6), and consider whether the disputed terms are ambiguous and susceptible of more than one meaning (Principle 7). If there is ambiguity I will then consider certain surrounding circumstances to hopefully aid the interpretation of the agreement (Principles 8-14).
The ordinary meaning of the words in clause 97 are not as clear as they could be but clear enough to carry an enforceable meaning without reference to external matters.
There are several factors to consider about the context in which the words in clause 97 appear. The 2018 Agreement is a large, comprehensive, covers thousands of employees in varying working environments and 7 unions are covered. Clause 97 is in Section 3 of the 2018 Agreement. Section 3 covers maintenance employees in a wide range of vocations, including boilermakers, engineering operators, machinists, plumbers, rail technicians, rail maintainers, store persons, truck drivers, cleaning attendants and the like.
It cannot be said that clause 97 only pertains to RETRU workers or even that clause 97 is specifically targeted to the relatively unusual on call arrangements for the RETRU workers.
As the Full Bench in AMWU v Programmed Industrial Maintenance Pty Ltd[6] found, antecedent instruments from which a particular provision might have been derived may also provide relevant context. As the Unions’ historical analysis reveals, clause 97 has continued, largely untouched, from industrial awards since 1982 and through successive enterprise agreements since 2008. I note that the industrial awards were specific to railway industry workers rather than awards that applied to broader industries.
Since 1982 the only significant change to the on call provision was the introduction of a day on call allowance in the 2010 Agreement. No party led evidence about this change in 2010. In any event I note that the Full Bench in Berri queried the relevance and utility of evidence about the negotiation of earlier generation agreements.[7]
The key terms within clause 97 are found in clause 97.2, viz:
“97.2. An Employee On Call shall be paid an allowance as set out at item 6 of Schedule 3B for a night, as set out at item 7 of Schedule 3B a day, or a total as set out at item 8 of Schedule 3B for a day and a night, except when…”
In finding the ordinary meaning of the words I must try to objectively identify the common intention of the parties by reference to what a reasonable person would understand by the language the parties have used to express their agreement. This task is less difficult when interpreting individual contracts, and when interpreting agreements in smaller enterprises and in enterprises with a homogenous workforce. However the task is considerably more difficult when considering an agreement made with a more disparate workforce and/or agreements made with several industrial parties.
I must avoid a narrow or pedantic approach and be cognisant of the industrial context in which the Agreement was made. I recognise that anomalies arise from each competing interpretation, including:
(a)if the Respondent is correct then the 16-hour period from 2pm until 6am is all treated as one single night;
(b)if the UUnions are correct then any time spent on call during the day attracts the whole day on call allowance;
(c)if the UUnions are correct then RETRU workers are entitled to receive a higher payment for the 4 daytime hours on call between 2:00pm and 6:00pm (currently $17.55) then they are entitled to receive for the 12 night-time hours between 6:00pm and 6:00am (currently $11.72).
Although the cross references to Schedule 3B are essential to clause 97, if one was to remove them then the meaning of the remaining words is better revealed:
“97.2 An Employee On Call shall be paid an allowance … for a night, [an allowance] a day, or a total [allowance] for a day and a night, …”
If an employee is on call “for a night” then they receive a specific allowance, and if they are on call for “a day” they receive a different specific allowance.
Whilst the interpretation proffered by the Unions is arguable, and is not contradicted by the specific terms of clause 97, I cannot find that this interpretation can prevail over the competing interpretation advanced by Sydney Trains.
The Unions’ interpretation is founded upon the notion that if a worker is on call during a period that is part of the “day”, then they must receive the day on call allowance, and similarly if a worker is on call during a period that is part of the “night”, then they must receive the night on call allowance.
If the intention of the parties was that employees receive the specific allowances by reference to the time of day during which they are on call, then I would expect that the terms of clause 97 would be worded differently. One might expect, for example, an expression within clause 97 that more closely connects to the time at which an employee is on call, such as “an employee on-call shall be paid [an allowance] for any period they are on call during a day” and so on.
Rather, the terms adopted by the parties appear to contemplate employees being on call for a day, or for a night, or for a day and a night - and set a per-instance allowance for each of these events. The entitlement to a specific allowance for each of these scenarios is rather clumsily set, but it is set nonetheless by the words of clause 97.
In the case of the RETRU workers, they work their ordinary hours during the day on Monday to Friday, and are on call for a day on Saturday and for a day on Sunday. They are not on call for ‘a day’ on weekdays because they work on those days. On each night of the week they are also on call for a night.
As such they are entitled to the on call night allowance for every night they are on call, and the on call day allowance for both days on the weekend that they are on call.
Principle 9 in Berri is as follows:
“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.”
By its terms this principle refers to the admission of evidence of surrounding circumstances. In the hearing of this matter I was content to admit the evidence of both parties that went to what they said were surrounding circumstances and to allow the parties to make submissions about how I should consider that evidence (or not).
Procedurally I do not see this approach to be contrary to Principle 9. Both the Unions and Sydney Trains submitted that the words in clause 97 have a plain meaning and are not ambiguous, but also quite properly advanced alternative submissions and evidence to cover off the possibility that I might find that there was ambiguity.
Having found that clause 97 of the 2018 Agreement has a plain meaning, I have not interpreted clause 97 by reference to or in consideration of the evidence led by either party about what was said to be the surrounding circumstances.
Nonetheless I will make some brief observations about the surrounding circumstances because a considerable amount of time and resources were directed to these surrounding circumstances.
Firstly, the terms of the ‘Blue Book’ and Sydney Trains’ Payroll Manual featured heavily in the proceedings. If I were to have considered the external circumstances I would not have placed any significant weight on the terms of these documents.
There was no controversy between the parties about how Sydney Trains has applied clause 97. The only possible relevance of the Blue Book or the Payroll Manual is to reinforce the fact that Sydney Trains only paid certain allowances, and has only paid those certain allowances for a very long time. The terms of these documents could only otherwise be understood to be somebody’s interpretation of the clause. The terms, and even the existence, of the Blue Book and the Payroll Manual were not known to the union witnesses and Sydney Trains led no evidence suggesting that any unions had any knowledge of or involvement in the development of these documents.
Sydney Trains maintained that there was a common understanding between the parties to the 2018 Agreement in relation to the on call allowance. This common understanding was said to be that the allowances were only payable in accordance with the regime applied by Sydney Trains.
The Unions properly submitted that for there to be an established common understanding the Commission needs to make a finding that there is positive evidence of a meeting of the minds. The Unions relied on the following passage from Australian Liquor, Hospitality and Miscellaneous Workers Union v Prestige Property Services Pty Ltd[8]:
“… If such a common understanding existed when the award was made, it should not be departed from when the Court comes to construe the award at a subsequent time. Care must be taken, however, to distinguish a common understanding from common inadvertence. If the only reason why the government instrumentality rates were not paid at the Victorian Arts Centre was that neither the union nor the employer adverted to the possibility that there was an obligation to pay them, no common understanding results. In order to have an understanding, it is necessary that there be a meeting of minds, a consensus. There can be no meeting of minds, no consensus, if no-one has thought about the issue.”
Sydney Trains also submitted that the absence of any evidence of formal disputes or complaints being raised about Sydney Trains’ interpretation of the on call arrangements supports its contention that there was a common understanding between those to whom the 2018 Agreement applies. The Unions submitted that there cannot be a meeting of the minds if nobody has thought about the issue, and the absence of any evidence of any of the parties giving thought to this issue supports their contention that there was no such common understanding.
As Banks-Smith J observed in Shop, Distributive and Allied Employees' Association v Target Australia Pty Ltd [2021] FCA 1038 at [182]:
“The history or pattern of payment by Target is insufficient to justify any particular construction. It is not known whether anyone had previously complained about the calculation of their annual leave entitlement; whether the representatives at the bargaining meetings had knowledge of Target's practice of payment; nor is it known whether any failure to complain may have resulted from inadvertence or a misplaced understanding of the scope of the clause. If it were sufficient to refer to past practices, the terms of an industrial agreement could be put to the side, and any new employee would be significantly disadvantaged in seeking to understand the entitlements of their employment.”
The evidence in the case did not rise so high as to establish any meeting of the minds about on call allowances. I can presume that each RETRU worker knew what they were being paid, but the evidence led goes no closer towards establishing a common understanding about their entitlements.
It must be acknowledged that there is a significant degree of artificiality about the notion of a ‘meeting of the minds’ in the formation of the 2018 process, particularly given Sydney Trains’ large and diverse workforce. RETRU workers are one very small portion of the range of employees covered by the 2018 Agreement. Self-evidently the vast majority of employees who voted to make the 2018 Agreement would have had no knowledge at all of on call arrangements of this relatively tiny work group. It is also somewhat self-evident that the same majority of employees were unlikely to have paid any attention in the bargaining process to the on call provisions for maintenance staff in clause 97.
Rest periods
A subsidiary dispute evolved in the proceedings in relation to how rest periods are to be treated under the 2018 Agreement vis a vis the on call allowance. If a worker is called out in the night then they are allowed a rest period of eight hours before they are required to attend for work at base. RETRU employees are on call during this rest period insofar as they are expected to respond to a further callout if an incident arises, but if they are otherwise due to return to base to commence their ordinary hours within eight hours of finishing a callout, they are entitled to rest away from the workplace until the eight-hour rest period has ended. There is said by the Unions to be an ongoing conflation between the rest period and returning to being on call.
The distinction between a worker being on call or on a rest break only has a practical consequence if the Unions’ construction of clause 97 is accepted. Given my findings above there is no need to canvas this matter any further.
Conclusion and Finding
The agreed question for determination was:
What entitlements are payable under clause 97 of the 2018 Agreement to employees working the following shift pattern:
Mon Tue Wed Thurs Fri Sat Sun Shift 0600-1400 0600-1400 0600-1400 0600-1400 0600-1400 N/A N/A On call 1400-1600 1400-1600 1400-1600 1400-1600 1400-1600 0600-0600 0600-0600
I determine that, unless an exception referred to in clause 97.2(a)-(c) applies:
(a)When a RETRU worker is on call from 2:00pm until 6:00am they are on call “for a night” and shall be paid an allowance as set out at item 6 of Schedule 3B;
(b)When a RETRU worker is on call on a Saturday or Sunday they are on call for “a day” and shall be paid an allowance as set out at item 7 of Schedule 3B; and
(c)When a RETRU worker is on call for a day on a weekend as well as for a night then they shall be paid a total as set out at item 8 of Schedule 3B for a day and a night.
DEPUTY PRESIDENT
Appearances:
Mr J Martin for the AMWU
Ms H Bellette for the RTBU
Ms C Lenard for the Respondent
Hearing details:
2022.
Sydney (By Video using Microsoft Teams)
April 1.
[1] (2017) 268 IR 285 at 310, [2017] FWCFB 3005 at [114], which modified the principles distilled in Australian Meat Industry Employees Union v Golden Cockerel Pty Ltd (2014) 245 IR 394 at 414-415, [2014] FWCFB 7447 at [41].
[2] (2018) 282 IR 228, [2018] FCAFC 182.
[3] [2021] FWCFB 345 at [38] citing WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [197] and the authorities referred to therein; and also King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173 at [122]- [130] and the authorities referred to therein. See also King v Melbourne Vicentre Swimming Club Inc [2021] FCAFC 123 at [40]
[4] AE428119.
[5] (2017) 268 IR 285 at 310, [2017] FWCFB 3005 at [114].
[6] [2021] FWCFB 3456 at [38] citing WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [197] and the authorities referred to therein; and also King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173 at [122]- [130] and the authorities referred to therein. See also King v Melbourne Vicentre Swimming Club Inc [2021] FCAFC 123 at [40]
[7] (2017) 268 IR 285 at 310, [2017] FWCFB 3005 at [95].
[8] Australian Liquor, Hospitality and Miscellaneous Workers Union v Prestige Property Services Pty Ltd (2006) 149 FCR 209; 148 IR 409, [2006] FCA 11 at [44], partially cited in Berri at [108].
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