Australian Workers' Union, The v Acquired Awareness Traffic Management Pty Ltd
[2018] FWC 2475
•22 JUNE 2018
| [2018] FWC 2475 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Australian Workers’ Union, The
v
Acquired Awareness Traffic Management Pty Ltd
(C2017/6540)
Building, metal and civil construction industries | |
COMMISSIONER HUNT | BRISBANE, 22 JUNE 2018 |
Dispute concerning meaning of engagement for night shift workers – whether employees permitted to remain at home for duration of shift is an engagement.
[1] The Australian Workers’ Union (AWU) has made an application to the Fair Work Commission (Commission) pursuant to s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute. The application concerns a dispute about rostering with Acquired Awareness Traffic Management Pty Ltd (Acquired Awareness).
[2] It is not contested, and I accept that the Commission has jurisdiction to resolve the dispute in accordance with the terms of the Acquired Awareness Traffic Management Pty Ltd Enterprise Agreement 2012-2016 (the Agreement). The Agreement was approved on 13 February 2013 and it has reached its nominal expiry date. The Agreement was assessed against the Building and Construction General On-site Award 2010 (Award) for the better off overall test, however the Award is not incorporated into the terms of the Agreement.
[3] The matter was listed before the Commission on 13 December 2017 for a telephone conference. The matter was not resolved, and directions were then issued for the filing of material. The AWU filed written submissions but did not file any witness material. Acquired Awareness filed written submissions and witness statements from:
● Mr Grant Reid, General Manager; and
● Mr Bradley Reibelt, former Business Manager.
[4] The AWU filed written submissions in reply. The matter was listed for a hearing on 19 April 2018. Subsequently, Acquired Awareness made a request for the matter to be determined on the papers. The AWU were content with this approach, and accordingly the hearing was vacated and the matter has been dealt with on the papers.
Background
[5] Acquired Awareness provides traffic control services to a number of clients in South East Queensland including Brisbane City Council, Gold Coast City Council and Queensland Government (Roadtek).
[6] While there is a depot for employees to attend work if required, employees typically attend work directly at the site where the traffic control is required.
[7] Acquired Awareness stated the following facts:
“The current working arrangement is that the employees in question work 5 night shifts a week, Monday to Friday. The work from Monday to Thursday is regular schedule operations. There are rarely scheduled operations on the Friday shift, but the Respondent is required to have staff available to provide services to its clients within one hour of callout. This typically involves emergency relief work or road works following, for example, a storm.
Employees are able to spend their fifth shift either at the depot or at home, provided that they can and will attend a work site within the required timeframe. Unsurprisingly, they invariably choose to spend the shift at home.
Clause 9.2(1) columns 3 and 4 of the Acquired Awareness Traffic Management Pty Ltd Enterprise Agreement 2012-2016 (EA) specifies a pay rate that applies when employees work ‘5 nights or more’. There is a higher pay rate if they work ‘less than 5 nights’.” 1
The dispute
[8] The dispute relates to clause 9.2 of the Agreement set out below:
“9.2 Rates of pay
(1) Full-Time and Part-Time Employees
Full-Time and Part-Time Employees will be paid at the following rates:
Day Rate | NIGHT RATE | Night Rate – | Saturday | Sunday | Public | |
Traffic | 18.30 | 21.05 | 27.45 | 27.45 | 36.60 | 45.75 |
Traffic | 18.52 | 21.30 | 27.78 | 27.78 | 37.04 | 46.30 |
Traffic | 18.93 | 21.77 | 28.40 | 28.40 | 37.86 | 47.33 |
Traffic | 19.55 | 22.48 | 29.33 | 29.33 | 39.10 | 48.88 |
(2) Casual Employees
Day Rate / | NIGH | Night Rat | Saturday | Sunday | Public | |
Traffic | 22.87 | 25.62 | 32.03 | 32.03 | 41.18 | 50.33 |
Traffic | 23.15 | 25.95 | 32.41 | 32.41 | 41.67 | 50.93 |
Traffic | 23.67 | 26.50 | 33.13 | 33.13 | 42.59 | 52.06 |
Traffic | 24.44 | 27.37 | 34.21 | 34.21 | 43.99 | 53.76 |
(3) The hourly rates include all loadings, penalty rates and overtime rates and compensation for all conditions on the sites and skills associated with or likely to be associated with work on the sites (including special payments to compensate for disabilities), but excluding any allowances or loadings specifically provided for under clause 9.3 of this Agreement.”
[9] The rates above are the rates applicable at the time the Agreement was made. The Agreement provides for increases in rates of pay in accordance with the Annual Wage Review of the Commission.
[10] There has been a practice since 2015 where, if employees have worked Monday to Thursday, employees are directed by Acquired Awareness to “work” for four hours only on a Friday night. Acquired Awareness ordinarily does not require the employees to perform work; in fact they are permitted to stay at home, if they wish. Where directed, the employees will perform work.
[11] The AWU contends that this practice of paying employees four hours’ pay to stay at home and not perform work is to ensure employees are paid at the lower rates of pay for all of the work performed by them in a week. If Acquired Awareness did not adopt this practice, it would be required to pay to employees the higher rate of pay for work performed Monday to Thursday.
[12] The AWU seeks a determination that Acquired Awareness be directed to cease the practice of paying employees a minimum engagement of four hours on Friday so as to “avoid their obligations under the Agreement.” If the AWU is correct, it would also result in employees becoming entitled to an underpayment of wages.
[13] Clause 10.2(2) of the Agreement sets out the conditions in which employees will be paid the four hour minimum, and provides:
“10.2 Engagement for Duty
…
(2) Subject to this Agreement, Traffic Controllers will be paid a minimum of 4 hours at applicable rates for each engagement provided that:
a) depending on the operational requirements of the Employer, Employees may be required to work at one or more different engagements at different client sites during a day. Employees will be paid for continuous hours worked until such time that the Employer has clearly determined that an engagement has concluded and the Employee has been authorised to return home. A separate 4 hour minimum will only be paid if an Employee has been authorised by the Employer to return home and has returned home after the conclusion of an engagement and is then asked to return to work; and
b) the minimum payment does not apply:
(i) if the Employee leaves the site for any reason other than as
directed or approved by the Employer;
(ii) if the Employee has not rung the Employer’s depot upon
completion of the four hour minimum before leaving site; or
(iii) for disciplinary reasons.”
[14] The AWU took steps to resolve the dispute under the Agreement’s dispute resolution procedure, submitting that it first notified the company that there was a dispute in respect of the Friday night, four hour minimum shift on 1 December 2016. On 1 September 2017 the AWU sought the names of appropriate supervisors to progress the dispute, which was met with the offer of a meeting with Mr Grant Reid, General Manager. The meeting on 12 September 2017 was not successful in resolving the dispute and the AWU later filed the dispute in the Commission on 27 November 2017.
AWU’s submissions
[15] The AWU submitted that employees are regularly being paid at the lower rate within the Agreement, despite typically working four shifts of regular hours, and the fifth shift as a four hour shift.
[16] The AWU submitted:
“This has resulted in the potential for employees to be left worse off. For instance,
an employee working twenty [hours] paid at the ‘five nights or more’ (Traffic Controller Level 1 Permanent) rate with an additional four hour minimum engagement is $43.48 worse off in the course of one week than an employee who works twenty hours paid at the ‘five nights or less rate’ (Traffic Controller Level 1 Permanent without the minimum engagement shift. This figure does not take into account any overtime payments or other allowances and should therefore be considered conservative.” 2
[17] It was submitted that the employer’s rostering practices operate in contravention of the spirit and intent of the Agreement. A lack of guaranteed hours inherent in the traffic control industry has resulted in the Agreement specifying that reduced days of work attracts a higher rate of pay, and thereby providing some financial security to employees.
[18] The AWU relied on the principles elucidated in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited 3 (Berri) as to the interpretation and construction of an enterprise agreement.
[19] The AWU submitted that there is a clear ambiguity regarding the application of the Agreement. It was contended that there is no plain meaning apparent in clause 10.2 as to whether a minimum engagement rostered shift, where an employee may not actually be required to work, would constitute an ‘engagement’. It was submitted that the provision in clause 9.2 for a higher rate of pay for those employees working less than five nights highlights the inconsistency of the practice.
[20] Ambiguity arises also due to the fact that similar rostering regimes exist by other names, the AWU contended. The rostering arrangement at issue, if it were permitted by an enterprise agreement, would be typically covered by ‘on call’ provisions. By way of example, the AWU pointed to the Building and Construction General On-Site Award 2010 whichincludes a call out allowance which mandates a minimum engagement, currently at the rate of double time for a minimum three hour engagement.
[21] In accordance with the principles in Berri, the AWU submitted, evidence of surrounding circumstances may be examined to aide in the interpretation of an ambiguous clause. The AWU contended that the unpredictable nature of the industry is a ‘notorious fact’ and is recognised in the Agreement; for example in clause 10.2(1) which is prefaced with the phrase ‘due to the nature of the Traffic Control Industry’.
[22] The operation of clause 9.2 then, the AWU submitted, should be considered in light of the effect of the irregular and unguaranteed hours which characterise the industry, in order for the Agreement to be consistent. It was argued that if employees are being engaged on the fifth night for the minimum engagement shift expressly to prevent their entitlement to be paid at the higher mandated rate (for less than 5 nights), this is an action by the employer that may leave employees worse off and flouts the purpose of clause 9.2, being to compensate employees for the irregular nature of the work and the potential that they may sometimes work less than five shifts per week.
[23] In additional support for this submission, the AWU cited the approach in Kucks v CSR Ltd 4, which was approved in Construction, Forestry, Mining and Energy Union v Ulan Coal Mines Ltd,5 that the interpretation of an enterprise agreement should ‘give effect to its evident purpose’ by reading it in light of its industrial context and environment. The High Court decision of Amcor Ltd v Construction, Forestry, Mining and Energy Union6 per Gleeson CJ and McHugh JJ similarly articulated the principle that enterprise agreements must be understood in the light of its industrial context and purpose.
[24] The AWU submitted that the purpose of the provision for higher rates of pay for employees working less than five nights can be reasonably concluded to be as a way of compensating employees for the lack of regularity in their hours and, consequently, the lack of financial security associated with their work.
[25] This condition of the Agreement, the AWU argued, is undermined by the employer’s rostering practice of engaging employees on a fifth, minimum engagement length shift, and is designed to deliberately circumvent the provision in clause 9.2 for higher rates of pay when there is less work available for employees. This jeopardises the financial security offered to employees by the Agreement, as the minimum shift itself does not provide that security, the AWU contended.
[26] In its reply submissions, the AWU clarified that it did not suggest that irregular hours are unique to the traffic control industry; simply that the variable rate of pay should be interpreted in the context of the industry as compensation for irregular hours. 7
[27] The AWU did not dispute Acquired Awareness’ view that traditionally, a higher rate is provided for night shift workers; but did dispute the rationale that it was compensation for the significant impact of ‘broken shifts’ on workers’ sleep and health. The AWU suggested that if this were the case, there would be a higher rate of pay for those working five or more night shifts in a week than those working less than five, as presumably, the effects on the workers’ sleep would be more pronounced. It maintained its submission that the higher rate for those who work less than 5 nights per week is intended to compensate for the irregularity of hours inherent in the industry. 8
[28] In reply to Acquired Awareness’ submissions, the AWU took issue with several points made by the company. The AWU rejected the implication by Acquired Awareness that the employees effectively endorsed the current practice, merely on the basis of the time elapsed between its implementation and the filing of the dispute. It submitted the delay was of no relevance in line with the authority in Berri, as past practice is only of relevance where there is consensus between the parties on the interpretation of the clause. The AWU refuted the notion that there was any consensus or that the AWU members gave their explicit approval of the arrangement. 9
Acquired Awareness’ evidence and submissions
[29] Mr Reibelt’s evidence is that when the Agreement commenced in February 2013, scheduled work was performed for major clients five nights per week (Monday to Friday). From approximately January 2015 the Brisbane City Council and Roadtek determined not to schedule road works on Friday nights. Acquired Awareness remained contracted to provide emergency response services as required, including on Friday nights.
[30] Acquired Awareness initially stopped rostering employees for the Friday evening shift, on the basis that any emergencies that occurred during that time would be responded to ad-hoc by volunteering employees. The employer was finding it increasingly difficult to meet its obligations on Friday nights as employees were stating that they were not available to work. Mr Reibelt spoke with an employee about this issue, and following this conversation concluded that employees were refusing to work Friday nights because it would lower the rate of pay the employees would otherwise become entitled to for work performed Monday to Thursday. 10
[31] Consequently, some services were not performed and Acquired Awareness breached a number of its commercial contracts in 2015. A fundamental term of these contracts was that Acquired Awareness would be present on site within one hour of the call-out, to ensure that the site is safe before other resources can be allocated to the site. Mr Reibelt’s evidence was that breaching this term repeatedly had a fiscal impact on the major clients, and put the contracts into jeopardy.
[32] On 27 March 2015 Mr Reibelt sent the following bulletin to all relevant employees:
“It has come to my attention that a number of Utility Drivers and Straight to Site staff have decided that they no longer wish to be available to work a minimum of 5 days per week. I have been informed that on any given Friday there are 20 to 30 Utility Drivers and a similar number of Straight to Site staff unavailable to work as “their crew is on an RDO”. This problem is also becoming prevalent in our Night Work Utility Drivers and Straight to Site staff who are now also making themselves unavailable to work to try and abuse the 4/5 Night benefit.
I have been working hard with the management team to secure contracts to ensure that ALL staff in this company continuity of work to enable all to pay their rent/mortgages and feed their families. We as a company work hard to meet our client expectations around aligning particular staff with particular crews which gives many staff continuity of stable work and also sets us apart from our competitors. However, I am now also seeing that this benefit to staff is being abused by staff as they seek to take “their RDO” and leave ATM to spend considerable time seeking alternate staff as certain staff refuse shifts at the last minute.
I need to remind ALL traffic control staff that you are employed by Acquired Awareness Traffic Management and not directly by the client i.e. AATM pay your wages and there is no RDO days that are part of your Enterprise Agreement, you are expected to work a minimum of 5 days/nights per week. I have therefore been left with no other choice other than to actively recruit more staff that are prepared to work and meet client expectations of service. I have also instructed the Senior Operations Manager to identify Utility Drivers who have regularly chosen this pathway as a first step to now taking away the benefit of a take home utility. These staff will either be asked to collect and return Utilities each day from the depot as required or will be offered Straight to Site roles as they can no longer be relied upon to meet client and AATM expectations. I cannot tolerate a situation where our assets are sitting in people’s driveways/on the street and not available to be worked because staff don’t wish to meet their obligations to work.
If there are staff who feel that my decision to do this to meet client expectation and keep ALL staff employed is an unfair outcome then I am more than happy to sit down and discuss alternate career choices.
…”
[33] Following unsuccessful consultation with employees as to how to best manage the Friday evening shifts, a further bulletin was sent to all relevant employees on 29 April 2015 as follows:
“We recently wrote to staff regarding making themselves available to work shifts as agreed when they first joined Acquired Awareness Traffic Management. Unfortunately as a Management team we have not seen an improvement in this situation so a decision has now been made as a first step to place staff who choose to work at nights now being required to be included in a Friday Night roster and making themselves available from 6:00pm. These impacted staff may be requested to remain at home, attend the Deport to be assigned various tasks or assigned a job however these decisions will be purely based on Operational needs.
What does this mean for you:
Staff will be contacted on Friday morning via SMS to inform them they have been included in the roster for Friday night. Should a staff member refuse this shift on a Friday night the standard 5 night rate of pay will apply for hours worked to this point and treated as a refusal of a shift. Should you not be given a job then you will be paid a 4 hour minimum as required under the Enterprise Agreement.
All staff commencing their Night work on Monday evening need to remember that they may be required to be available to work on Friday nights.
When will this occur:
This new process will commence from Monday the 4th of May 2015”.
…”
[34] Mr Reibelt stated that he had received a number of enquiries from employees regarding the rostering on Friday nights, and he had explained clearly to the employees that the necessity to roster those evenings was as a consequence of the breaches of contract suffered by the company in early 2015 due to the unavailability of staff on Friday evenings. Mr Reibelt further said that many employees had responded that they were satisfied with the new arrangement which allowed them to await a call-out from home, because if they were not called out, they would be paid regardless. 11
[35] Acquired Awareness submitted that since implementation there had been no formal dispute about the arrangement until the present case. Mr Reid said in his statement that operationally, the current arrangement had been operating well and there had been no challenges by employees to Acquired Awareness’ right to roster on Friday nights until the current dispute. 12
[36] However, Mr Reid’s statement illuminated to some extent the background to the current dispute. The first occasion on which the AWU made any mention of issue being taken with the wages paid to their members was on 1 December 2016, within a letter in respect of another issue. No further action appears to have been taken until some nine months later on 12 September 2017, when a meeting between AWU organisers and Acquired Awareness management was convened for the purpose of discussing the Friday night shifts. Mr Reid said that the AWU raised its members’ concerns in respect of those shifts and stated that they considered there was no right of Acquired Awareness to roster the fifth night shift. The AWU further argued for the employees to be paid retrospectively to 2015 on the basis of four night rosters rather than five, according to Mr Reid. The AWU was given the rationale for the rostering system outlined above, and the meeting concluded with the AWU advising it would consider the response of Acquired Awareness and consult with its affected membership. Nothing further occurred until the current application was filed two months later. 13
[37] It was further submitted that the arrangement was designed to ensure that the contractual obligations Acquired Awareness had to its clients were met, and not to avoid paying a higher rate as submitted by the AWU. Mr Reid described the need for staff to respond to call-outs on Friday evenings as intermittent, saying they would be called out ‘from time to time. For example… to help clean up after a storm.’ 14
[38] Addressing the AWU’s submission that employees rostered on the Friday evening shift for the minimum engagement period were not required to attend calls, Mr Reid wrote to employees on 27 February 2018 as follows:
“It has been brought to Acquired Awareness Traffic Management Pty Ltd's ("AATM") attention that some of you may not be happy with the arrangement that is currently in place in relation to Friday night shifts.
As you will be aware, the current arrangement, which was implemented in 2015, is for staff to be rostered for a minimum of four hours on the Friday night shift 'on call' and to perform such hours from your home. The purpose of being 'on call' is so that if AA TM's clients require services to be performed on the Friday night, then our staff would be available from various locations across Brisbane and surrounding areas to quickly attend to and perform such services.
The reason that this arrangement was implemented in 2015 was because prior to this staff were not being rostered on Friday night and when AATM's clients called requiring urgent services to be performed, AATM was continually unable to meet the client's requirements because AATM was unable to find sufficient numbers of staff prepared to come into work. Therefore, it was determined that rostering on a Friday night was necessary and the only option to ensure that AATM could meet its contractual obligations to its clients.
AATM determined that staff would appreciate being rostered 'on call' from their home on Friday night as a significant advantage from a work-life balance perspective rather than attending the depots to perform work whilst waiting for a potential call out.
Despite the arrangement that has been in place for the past couple of years, as stated it is now understood that some staff may prefer to attend the depots and perform duties commensurate with your position rather than remain 'on call' at home. It has always been the case that work has been available for staff to perform at the depots that is commensurate with your positions and AATM has always been prepared for any staff member to come in and perform those duties if they wished, however AATM believed that it was providing the best possible benefit to staff by allowing staff to remain at home 'on call' on Friday night.
The purpose of this letter is to obtain an understanding of which staff members would prefer to perform work from the depots on a Friday night as opposed to remaining at home 'on call'.
If your preference is to attend the depots when rostered on a Friday night as opposed to remaining at home 'on call', please email ([email protected]) by 5:00pm Thursday 1 March 2018. We will ensure moving forward that when you are rostered on a Friday night (which will be a minimum of four hours) that you are rostered at your depot and suitable duties commensurate with your position are available whilst you remain ready to attend any client call outs.
If you are happy with the current arrangement, being that if you are rostered to work on a Friday night that you remain at home 'on call' and receive a minimum of four hours pay, then you may either email me your intention to continue with this arrangement by 5:00pm Thursday 1 March 2018 or do nothing.
If we do not hear from you by the date above, we will assume that you are happy with the current arrangement.
If you have any questions, please do not hesitate to contact me.
…”
[39] Of the 124 employees who received letters, 118 did not respond, two employees confirmed they wished to stand-by at home, and four advised that they wanted to come into the depot to work.
[40] It was stated that if employees chose to attend the depot on the Friday evening they would be given tasks that are typically allocated when employees remain at the depot awaiting a call-out, such as truck maintenance. Mr Reibelt stated that this was something he discussed with employees and that Acquired Awareness had an ongoing need for those duties to be undertaken. 15 Mr Reid provided evidence that these are duties routinely performed by staff on the Monday-Thursday shifts, whilst at the depot.
[41] Acquired Awareness submitted that if the current arrangement also fails, it will continue to roster employees on the Friday evening but withdraw the option for the employees to stay at home, and instead require them to attend the depot for the entirety of the shift to perform tasks as required in the absence of any emergency call-out.
[42] Acquired Awareness disputed the AWU’s submission that clause 9.2(1) is ambiguous; submitting instead that there is no ambiguity and nothing in the clause or within the context of the Agreement to suggest that the clause is missing relevant words.
[43] It was submitted that for the AWU to be correct, column 3 of the table would not read: ‘night rates – 5 nights or more”, but would instead be taken to be read: “night rates - 5 nights or more excluding shifts where the employee is not required to attend the depot”. Similarly, column 4 of the table would not read: “night rate – less than 5 nights”, but would instead be taken to be read: “night rate – less than 5 nights excluding shifts where the employee is not required to attend the depot”.
[44] Conversely, Acquired Awareness contended that there is nothing in the Agreement or clause which suggests that the additional words exist or should exist. It was submitted that there is nothing to suggest that there is any limitation on the work that an employee must be performing for it to “count” for the purpose of columns 3 and 4 in the table.
[45] Acquired Awareness also refuted the argument advanced by the AWU that the purpose of the clause is to compensate employees for the lack of guaranteed hours and consequent financial insecurity associated with the traffic control industry. It was noted that the relevant clause is contained in a number of modern awards wholly unrelated to the traffic control industry, and therefore the purpose of the clause is not connected to the industry. In addition, Acquired Awareness queried that if the intent of the clause is to compensate employees for the unpredictable nature of the industry as contended for by the AWU, why the compensation would be limited to employees who work less than five nights a week and not extended to all employees in the same industry. Mr Reid noted that industry competitors do not have similar provisions in their agreement.
[46] Instead, Acquired Awareness submitted, the purpose of the clause is to compensate employees for discomfort caused by switching between day and night shifts within a short space of time, which it termed ‘broken shifts’.
[47] Acquired Awareness relied upon the authority in Berri regarding the principles of construction of enterprise agreements, extracting the following paragraphs: 16
(a) “The construction of an enterprise agreement…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: (a) the text of the agreement viewed as a whole; (b) the dispute provision’s place and arrangement in the agreement; (c) the legislative context under which the agreement was made and in which it operates.”
(b) “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 interpreting the agreement produced by parties.”
(c) “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.”
(d) “In constructing 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.”
[48] In recognition of Berri, Acquired Awareness submitted that where the purpose of the disputed clause is not express, the Commission may take into consideration the context of the Agreement’s creation, which then makes the purpose of the clause apparent.
[49] It was submitted by Acquired Awareness that the background to the clause was that it was imported from an equivalent provision in the relevant Award against which the proposed Agreement was compared under the Better Off Overall Test (BOOT). Similarly worded clauses have been included in awards and agreements dating back to 1942, when, Acquired Awareness identified, an equivalent shift work provision existed in the Determination of the General Board (Mineral Earths Section). 17
[50] Acquired Awareness also cited a submission made in the Queensland Rail Award – State [2005] 18 which it stated was not rejected by the Queensland Industrial Relations Commission. The relevant submission, paraphrased, states that the payment of higher rates is for employees working ‘broken shifts’. It was concluded by Acquired Awareness that the purpose of the clause throughout its evolution was to compensate employees for the unusual hours associated with shift work, rather than for the lack of financial security, and therefore relates to hours that are worked, rather than to hours that are not worked.
[51] However, Acquired Awareness submitted that the employees in question are not working a broken shift – rather, they are working continuous night shifts – and therefore are not entitled to additional compensation or the higher rate of pay.
[52] While, surprisingly, no submissions were made relevant to clause 10.2(2) Engagement for Duty, evidence was given as to what kind of obligations an employee must meet when rostered for Friday nights.
Consideration
[53] The primary issues in dispute is whether the relevant clauses – 9.2 and 10.2(2) – give rise to any ambiguity, and if so, whether the ambiguity prevents Acquired Awareness from rostering employees on Friday evenings for a minimum four hour engagement, typically not requiring the employees to physically attend for work.
The proper application of the Enterprise Agreement to the dispute
[54] A number of Full Bench decisions of the Commission have outlined the approach that should be adopted in considering the construction and meaning of an enterprise agreement. The most recent statement of the principles was set out in Berri in the following terms:
“[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.
12. 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. 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.”
[55] The Full Bench decision in DP World Brisbane Pty Ltd v The Maritime Union of Australia 19 aids in how an agreement is to be interpreted:
“[31] Importantly, the task of interpreting an enterprise agreement does not involve re-writing a provision in order to give effect to the Commission’s view of what would be fair and just, without regard to the terms of the agreement. As Madgwick J observed in Kucks v CSR Limited:
‘But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.’”
Clause 9.2 – Rates of pay
[56] Clause 9.2 comprises two tables setting out rates applicable to workers at different levels of classification, at particular times, and a paragraph clarifying the inclusions of the rates. The clause is reproduced above at [8].
[57] Quite simply there is a column of rates to be paid when employees work five nights or more, and a column with higher rates when they work less than five nights. It is not in contention that this means five nights in a week.
[58] The only mention of ‘work’ is below the tables, discussing the rates above being in full compensation for all conditions on the sites and associated with “work on the sites”.
[59] I consider that the table is unambiguous and has a plain meaning. Employees are paid the higher rate of pay when they work less than five nights in a week. Employees are to be paid a lower rate of pay when working five nights in a week.
Clause 10.2 – Engagement for duty
[60] The AWU asserts that ambiguity exists around the word ‘engagement’, and that it would be unclear if working from home and not being required to perform any functions would constitute an engagement.
[61] The phrase “engagement” is defined at clause 2, Definitions and interpretation within the Agreement as follows:
“Term Meaning
Engagement Means the clear start and clear end of continuous hours of work as notified by the Employer and actual hours that will be paid.”
[62] Having regard to the test in Berri at paragraph 7, I consider that there is a plain meaning of what an engagement means. I do not consider that it is ambiguous or susceptible of more than one meaning. I consider that an engagement includes the situation at point where Acquired Awareness notifies employees of the clear start and clear end of continuous hours of work and what they will be paid.
[63] The phrase “continuous hours of work” includes where meaningful work is performed, or at the employer’s discretion, where it requires employees to be available at short notice to attend a specific site to perform specific duties.
[64] I have had regard to the following sentence within clause 10.2(2)(a) of the Agreement and consider that there may be some ambiguity requiring contextual consideration as to where the work is to be performed:
“Employees will be paid for continuous hours worked until such time that the Employer has clearly determined that an engagement has concluded and the Employee has been authorised to return home.”
[65] Having determined that there is some ambiguity, it is suitable to allow evidence of the surrounding circumstances to aide the interpretation of the Agreement.
[66] The Award provides for a minimum engagement clause as follows:
“14.4 A casual employee is entitled to payment for a minimum of four hours’ work per engagement, plus the relevant fares and travel allowance and expenses prescribed by clauses 24—Living away from home—distant work and 25—Fares and travel patterns allowance on each occasion they are required to attend work.”
[67] The Award also provides for a call out clause at 34.2 as follows:
“(o) Call outs
A shiftworker called out to work after the expiration of their customary working time and after they have left work for the shift, or is called out to work on a day on which they are rostered off, must be paid for a minimum of three hours work calculated at double time for each occasion the shiftworker is called out. Provided that if called out on a public holiday, payment must be calculated at the rate prescribed in clause 37.9 of this award.”
[68] While it is true the Award is not read in conjunction with the Agreement and has no application to the employees at Acquired Awareness, the AWU submitted that the spirit and intent of the Agreement is not being met by Acquired Awareness by paying employees on Friday evenings when work is not performed.
[69] Having regard to clauses 14.4 and 34.2(o) of the Award, both clauses require payment when, in the case of a casual minimum engagement, the employee is “required to attend work”, and in the case of a call out, the employee is “called out to work on a day on which they are rostered off”. In both scenarios, it can be said that there is the expectation that work will be performed to be eligible for payment.
[70] There does not, however, appear to be a defined place of work for the payment under the Award. In my view, if an employer did not physically require an employee to attend for work, and instead required them to hold themselves in readiness, and was willing to pay the employee for holding themselves in readiness, this would constitute requiring the employee to attend for work, not necessarily attend work.
[71] The AWU submitted that the purpose of the provision for higher rates of pay for employees working less than five nights can be reasonably concluded to be as a way of compensating employees for the lack of regularity in their hours and, consequently, the lack of financial security associated with their work. It was submitted that the decision by Acquired Awareness to roster employees for Friday evening, but not require work of them was to deliberately circumvent the requirement to pay higher rates of pay for work performed Monday to Thursday.
[72] There is no evidence of any “spirit and intent” agreed between the parties as to rewarding employees a higher hourly rate for performing less than five nights’ work in any week. It is simply a rate within the table at clause 9.2.
[73] As to what an engagement under clause 10.2 means, it is contemplated that the employer may direct employees for that engagement to perform work where required; at different client sites. The employee is required to attend until such time as Acquired Awareness authorises the employee to return home.
[74] While there is a strong inference that the employee must be somewhere other than home when performing the work before they are released, I do not consider that this prevents Acquired Awareness from requiring the employee to be available from home and called upon to perform useful work as directed. In the event an employee was directed on one, two, three or four days of the week to stay at home and make themselves available if required, I am certain they would, on each of those days, be entitled to a minimum payment of four hours at the higher rate in column 4 of table 9.2. Each of those directions to make themselves available would constitute an engagement, even if no work was performed. Simply because the direction in this case is given on the fifth night in a week does not make the direction unsound or invalid.
[75] It would be disingenuous to suggest that employees are entitled to payment for making themselves available for the first, second, third or fourth shift of a week, even when if no meaningful work may be performed; but not the fifth shift, simply because this then reduces the rate applicable for each of the shifts across the week.
[76] On the evidence before the Commission the vast majority of employees have elected not to attend the depot for the performance of meaningful work as they have not been directed to do so. That is unsurprising and is in the employees’ interests; if only for the fact that they are not incurring any travel costs by not having to attend to physically attend a work site. I do not consider Acquired Awareness directing employees to attend the depot or a work site to hold any greater or stronger importance on the application of the Agreement than if they allow the employee to choose whether they wish to remain at home or attend the depot.
[77] In any event, the evidence before the Commission is that there is a strong commercial reason why Acquired Awareness requires employees to be engaged on a Friday night after having worked Monday to Thursday. On some occasions, at a client’s request, the employee will be required to attend for meaningful work after being contacted at home. The employee is expected to be ready and able to attend. The expectation on the employee would be that they must hold themselves in readiness to attend as directed, and not drink alcohol so as to prevent them from making their way to the directed work site. This obligation would not need to be met if the employee was not rostered for the Friday night and not being paid. The employee would be entitled to reasonably refuse to work at short notice, and may not be available.
[78] The consideration above is not based on any ideal of fairness; it is a statement of fact.
Conclusion
[79] The AWU’s desire in bringing the matter for determination before the Commission was to have the Commission declare that Acquired Awareness has not been meeting its obligation under the Agreement. I decline to conclude as such.
[80] If Acquired Awareness wishes to roster employees for a minimum of four hours’ work on a Friday, but not require them to physically attend for work, that is a matter for Acquired Awareness. There is not, in my view, any prohibition on the employer wishing to roster its employees in this way.
[81] On the evidence before the Commission, Acquired Awareness is at liberty to direct such rostered employees to attend at its depot, or where necessary, at a work site. Rostering of employees on a Friday night for a minimum engagement of four hours, and not necessarily requiring them to attend at the depot or at a work site does constitute an engagement under the Agreement while ever the employee is paid a minimum of four hours’ pay.
[82] In the event that an employee works Monday to Thursday and then is engaged for a minimum four hour shift, albeit working from home, the employee is to be paid the night rate in column 3 of table 9.2.
[83] For the sake of clarity, I have not sought to interpret the Agreement to achieve what might be regarded by either party as a fair or just outcome, nor have I applied an anteriorly derived notion of fairness, practicality or common sense to the matter. 20
[84] The dispute is determined accordingly.
COMMISSIONER
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1 The Respondent’s Submissions dated 2 March 2018 at [1]-[6].
2 The Applicant’s Submissions dated 8 February 2018 at [6].
3 [2017] FWCFB 3005.
4 (1996) IR 182.
5 [2009] FCA 326 at [26].
6 (2005) 222 CLR 241, 246.
7 Applicant’s Outline of Submissions in Reply dated 9 March 2018 at [32]-[33].
8 Applicant’s Outline of Submissions in Reply dated 9 March 2018 at [34]-[39].
9 Applicant’s Outline of Submissions in Reply dated 9 March 2018 at [5]-[10].
10 Statement of Bradley Joseph Reibelt dated 28 February 2018, at [21].
11 Statement of Bradley Joseph Reibelt dated 28 February 2018 at [28]-[30].
12 Statement of Grant Jamie Reid dated 2 March 2018 at [10].
13 Statement of Grant Jamie Reid dated 2 March 2018 at [14]-[21].
14 Statement of Grant Jamie Reid dated 2 March 2018 at [11].
15 Statement of Bradley Joseph Reibelt dated 28 February 2018 at [29].
16 Outline of Submissions of the Respondent dated 2 March 2018 at [13].
17 (159) VGG [1942].
18 QIRComm 77.
19 [2013] FWCFB 8557.
20 Australasian Meat Industry Employees Union, The v Teys Australia Beenleigh Pty Ltd[2014] FWCFB 1313 at [26].
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