Australian Workers' Union v Fluor Rail Services Pty Ltd

[2016] FWC 1612

[2016] FWC 1612

FAIR WORK COMMISSION

DECISION

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

Australian Workers' Union
v
Fluor Rail Services Pty Ltd
(C2014/6881)

COMMISSIONER CLOGHAN PERTH, 29 MARCH 2016

Dispute about any matters arising under the enterprise agreement.

[1] This is an application by the Australian Workers’ Union (AWU or Applicant) to the Fair Work Commission (Commission) to deal with a dispute in accordance with a dispute settlement procedure (DSP).

[2] The AWU is in dispute with Fluor Rail Services Pty Ltd (FRS or Employer).

[3] The application is made pursuant to s.739 of the Fair Work Act 2009 (FW Act).

[4] The DSP is contained in the Fluor Rail Services Pty Ltd, Pilbara Region, Maintenance (AWU) Enterprise Agreement 2013 (2013 Agreement).

[5] At the hearing, the AWU was represented by Ms E Douglas, Legal and Industrial Officer. Evidence was given on behalf of the AWU by Mr S O’Reilly, Union Organiser.

[6] The Employer was represented, with permission, by Ms E Hartley of counsel. Evidence was given on behalf of the Employer by Ms C Pollard, National Industrial Relations Manager and Mr Steven Clancy, Senior Director Human Resources, Fluor Australia Pty Ltd (Fluor Australia).

RELEVANT BACKGROUND TO DISPUTE

[7] The Employer provides rail maintenance services to various mine sites in the Pilbara region of Western Australia.

[8] Approximately 290 employees are employed on rail maintenance services on a fly in, fly out (FIFO) basis pursuant to a contract of employment and the 2013 Agreement.

[9] In September 2014, the Employer issued to employees, subject of this application, a notice regarding a proposed new work cycle.

[10] The notice advised that the then 14 days work followed by 7 days off roster (14:7 roster), was to be changed to a 7 days work, followed by 7 days off (7:7 roster).

[11] As a consequence of a change to the work roster, the Employer reduced the annual salaries in the 2013 Agreement, by 25%.

[12] The AWU does not agree to the roster change, but is not in dispute with the Employer regarding the roster change.

[13] The AWU is in dispute with the Employer regarding the 25% reduction in the employees’ annual salaries, as a consequence to the roster change.

[14] The new 7:7 roster commenced, for some employees in October 2014 and for other employees in January 2015. The employees received a 25% reduction in their annual salary on commencement of the new roster.

[15] The dispute was the subject of a Decision of the Commission, as presently constituted, on 12 May 2015. My conclusion in that Decision was:

“[56] In summary, I consider both parties have approached Clause 38 of the Agreement with a degree of selectivity. The Employer has focused exclusively on actual hours of work. The AWU, while acknowledging that there must be a focus on hours (equivalent) worked, has only considered “travel time”, but ignored other constituent parts which go to the “whole”, that is, annual salaries.

[57] Although Ms Hartley stated that it was impossible to “unscramble the egg” 1, the change to the 14:7 roster, has meant that the parties need to do that. The parties have to discover how many “parts” there are to hours of work, travel time, and the rest of the ingredients which make up annual salaries. Having done so, this will assist in determining the “appropriate” salaries for the 7:7 roster.

[58] While hours worked and travel time may be significant to a party’s analysis of what are the “appropriate” annual salaries for the new 7:7 roster should be, the parties have failed to take into account the remaining components which are clearly set out in Clause 36 of the Agreement. Selectivity, in my view, will inevitably lead to further interpretation issues relating to the third paragraph of Clause 38 of the Agreement should the 7:7 roster change in the future.

[59] In conclusion, I am not persuaded that the methodology adopted by both parties in determining the “appropriate” annual salaries following the introduction of the 7:7 roster is correct.”

[16] Since that Decision, the dispute has been the subject of a further four (4) conferences in the Commission but remains unresolved.

[17] To resolve the dispute, the AWU propose the following questions for determination:

“1. What are the components and relative values of each in the makeup of the annualised wage set out in clause 36 of the 2013 Agreement?

2. How are those components adjusted by a roster change in accordance with clause 38 of the 2013 Agreement.” (my emphasis)

[18] FRS agrees with the AWU that the dispute needs to be resolved. However, FRS asserts that the Commission cannot rewrite the 2013 Agreement by attributing values to components of the annual salaries, “when this is not how the Enterprise Agreement was drafted or negotiated”. For this reason FRS state that to resolve the dispute in the manner sought by the AWU is beyond the Commission’s jurisdiction.

[19] I now turn to the provisions of the Agreement.

“PART C - FLY IN FLY OUT EMPLOYEES

This section applies to employees whose point of hire is outside the Pilbara Region.

36.0 WAGE RATES AND RELATED MATTERS

The annual salary includes compensation for travel time, working on public holidays, overtime loadings, annual leave loadings and any and all disabilities associated with the work, and the fly in fly out nature of the employment. (my emphasis)

36.1 Annual Salaries

The annual salaries contained hereunder apply to all full time and project hire employees, are all purpose rates and compensate for any and all disabilities associated with the work including annual leave loading. (my emphasis)

CLASSIFICATION	AS AT 1 JANUARY 2013 3%	AS AT 1 JANUARY 2014 4%	AS AT 1 JANUARY 2015 4%	AS AT 1 JANUARY 2016 4%
New Starter	$112,381	$116,876	$121,552	$126,414
RW 1	$120,452	$125,270	$130,281	$135,492
RW 2 > 2 yrs service	$122,537	$127,439	$132,536	$137,838
RW 1 > 5 yrs service	$124,635	$129,621	$134,805	$140,198
RW 2	$125,560	$130,582	$135,806	$141,238
RW 2 > 2 yrs service	$127,776	$132,887	$138,202	$143,730
↓
Resurfacing Operator 6 (RO6)	$171,155	$178,001	$185,121	$192,526

38.0 WORK CYCLES AND HOURS OF WORK

The annual salaries outlined above are based on a three week cycle of 2 weeks work and 1 week of rest.

The daily hours of work are 12 hours per day, usually worked between the core hours of 6:00 am and 6:00 pm.

Where the operational needs of the business require a different pattern of hours or work cycle, the annual salaries for the above work pattern will be used as a basis for calculating the appropriate annual salary for the new work pattern.” (my emphasis)

[20] The DSP is contained at Clause 8 of the 2013 Agreement.

DISPUTE

[21] In my view, the dispute between the parties can be reduced to consideration of Clauses 36 and 38 of the 2013 Agreement.

[22] Put differently, the dispute is about what the “appropriate annual salary” for the 7:7 roster is. However, the approach, on this occasion, will have implications for any changes to any work pattern change which deviates from the 14:7 roster on which the annual salaries are based.

PREVIOUS RELEVANT INDUSTRIAL AGREEMENTS

[23] The following antecedent industrial instruments are:

• Civil and Mechanical Maintenance Pty Ltd Workplace Agreement 2006 (2006 Agreement);



• Fluor Rail Services Pty Ltd, Pilbara Region Maintenance Employee Collective Agreement 2008 (2008 Agreement);



• Fluor Rail Services Pty Ltd Pilbara Region Maintenance Enterprise Agreement 2010 (2010 Agreement).

[24] Each of the antecedent industrial instruments contain the following terms:

• the annual salaries are based on a three week cycle of 2 weeks work and 1 week of rest;



• the daily hours of work are 12 hours per day;



• the annual salary includes compensation for travel time, working on public holidays, overtime loadings and any and all disabilities associated with the work and the fly in fly out nature of the employment;



• where the operational needs of the business require a different pattern of hours or work cycle, the annual salaries for the above work pattern will be used as a basis for calculating the appropriate annual salary for the new work pattern.

[25] Notwithstanding these common terms since 2006, I have been advised that this is the first occasion that it has been necessary to determine the appropriate annual salary for a work pattern other than a 14:7 roster.

INTERPRETATION OF ENTERPRISE AGREEMENTS

[26] The Full Bench of the Commission, in The Australian Meat Industry Employees Union v Golden Cockerel Pty Limited[2014] FWCFB 7447, summarised the principles to be applied in the construction of an enterprise agreement. They are, for the purposes of this application, relevantly as follows:

“[41] From the foregoing, the following principles may be distilled:

1. ...

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

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

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

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

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

(a) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(b) notorious facts of which knowledge is to be presumed;
(c) evidence of matters in common contemplation and constituting a common assumption.

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

8. Context might appear from:

(a) the text of the agreement viewed as a whole;
(b) the disputed provision’s place and arrangement in the agreement;
(c) the legislative context under which the agreement was made and in which it operates.

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

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

[27] With respect to the second principle, it is necessary to determine whether the 2013 Agreement has a plain meaning or contains an ambiguity; I am satisfied that the words “appropriate annual salary” in Clause 38 of the 2013 Agreement is not plain, and is capable of more than one meaning, as evidenced by the respective submissions of the parties.

AWU SUBMISSION

[28] The AWU submit, in accordance with their questions for determination, that it is necessary to firstly identify the components which go to make up the annual salary. Having done so, it is necessary to attribute the relative values of each component to determine the makeup of the “annualised salaries”. Subsequently, it is then necessary to adjust those relative values according to the change in the roster.

[29] The AWU does not rely on direct “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”. 2

[30] What the AWU “proposes” 3 is that when the Civil and Mechanical Maintenance (Pilbara Rail Company Project) Certified Agreement 2002-2005 (2002 Agreement) is read in conjunction with the Australian Workers Union Railway Alteration and Maintenance Award 1993 (1993 Award), and a draft agreement between the Employer and the AWU and AMWU (2005 Draft FIFO Agreement) concerning FIFO arrangements, the result “provides an appropriate basis to calculate the annual salaries provided in the 2013 Agreement”.4

[31] Effectively, the AWU, in the absence of direct evidence of negotiations for the “annualised” salaries, have retrospectively constructed various components in the 2002 Agreement, 1993 Award and the 2005 Draft FIFO Agreement and attributed relative values to those components to establish “annualised” salaries in the 2006 Agreement. Having done so, the AWU has projected those components forward as the basis for consideration of the annualised salaries in the 2013 Agreement.

[32] The retrospective constructed components are:

• Base rate for rostered hours of work;



• Crane/Palfinger/Rigger/Dogman allowances;



• CMM allowance;



• Distant Work Recognition Payment;



• Annual Leave loading;



• Public Holidays worked;



• Travel time.

[33] The individual components based on the above industrial instruments in paragraph [30] are converted into percentages as follows:

• Base rate for rostered hours of work………………78.33 – 80.37%



• Crane/Palfinger/Rigger/Dogman allowances……….1.04 − 0.91%



• CMM allowance…………………………………….8.73 – 7.66%



• Distant Work Recognition Payment ………………...7.78 – 6.83%



• Annual Leave loading……………………………….0.64 – 0.66%



• Public Holidays worked……………………………..1.11 – 1.14%



• Travel time……………………………………..……2.37 − 2.43%

[34] Transposing these percentages to the 7:7 roster, the AWU submit that the reduction in “annualised” salaries should be 23.04%.

[35] The AWU submit that its proposed methodology of reconstructing and projecting forward to the changed work pattern is a valid, logical and reasonable method to determine the appropriate annual salaries for the 7:7 roster.

EMPLOYER’S SUBMISSION

[36] The Employer starts from Clause 36 of the 2013 Agreement which states that:

“…annual salary includes compensation for travel time, working on public holidays, overtime loadings, annual leave loadings and any and all disabilities associated with the work, and the fly in fly out nature of the employment.”

[37] From this starting point, the Employer asserts that any attempt to disaggregate the annual salaries encounters, among others, the difficulty of assessing the relative compensation value of:

• disabilities associated with the work; and



• disabilities associated with the fly in fly out nature of the employment.

[38] Further, and contrary to the AWU’s methodology, the Employer submits that the annual salaries were created “with reference to the prevailing job market and commercial considerations”. 5

[39] The Employer submits that the annual salaries were developed as a “single unit of payment to compensate for fly in fly out employees for their work over a whole year”. 6 In support of this “single unit of payment”, the Employer refers to a term in the 2013 Agreement in which superannuation is paid on annual salaries rather than “ordinary time earnings” as required in the Superannuation Guarantee (Administration) Act 1992 (Clth).

[40] In view of the above circumstances, the Employer submits that the “only objective measure that can be used to determine an appropriate salary for the 7:7 roster (or indeed, a 14:14 roster) is the reduction in the number of hours worked.

[41] In the 2013 Agreement, annual salaries compensate for 2912 hours of work. However, with the 7:7 roster, the employees are only working 2184 hours. Accordingly, the only appropriate annual salary for the new work pattern is a corresponding 25% reduction to the current salaries.

[42] Alternatively, the Employer submits that if the annual salaries are disaggregated as proposed by the AWU, then the appropriate reduction is 29% and not 23.04% as submitted by the Union.

[43] Having set out the essential elements of the respective submissions, I now turn to consideration of these matters.

CONSIDERATION

[44] Paragraph 3 of Clause 38 of the Agreement has the purpose of enabling the calculation of an appropriate annual salary for a work pattern which is different from a 14:7 roster.

[45] The Australian Concise Oxford Dictionary defines “appropriate” as “belonging or peculiar (to); suitable or proper”. In other words, something is appropriate if it belongs and correctly fits, with what is being sought to be achieved – in this case, a revised annual salary which fits the new roster.

[46] Any revision of the annual salary is to be based on the current annual salary, which, in turn, is based on a 14:7 roster.

[47] What belongs, as suitable or proper can be described as reasonable – that is, something within the limits of what could be expected.

[48] In addition to the above matters, I intend also to consider the meaning and context of the words “annual” and “annualisation” which have been used interchangeably throughout this matter. Subclause 36.1 of the Agreement refers to annual salaries applicable to full-time employees. “Annual” salaries being the amount of money to be received by an employee over one year.

[49] Annualised salaries is the term usually used to describe a situation where weekly or other periodic amounts (usually pre-determined), are mathematically converted to an equivalent yearly amount and subsequently divided into weekly or fortnightly payments. Put differently, the yearly amount is the sum of the constituent components in dollar terms.

[50] For obvious reasons, it is critical, in the case of an annualised salary, for both the employer and employee to ensure that all the constituent parts are accounted for and calculated correctly. Such an exercise needs to be documented and transparent.

[51] In contrast, an annual salary is a yearly dollar amount. An annual salary is a dollar amount agreed to by both parties as the salary for a year’s worth of work.

[52] An annualised salary is a “bottom up” exercise. An annual salary is a pre-determined “top down” exercise. While both concepts provide certainty and predictability of fortnightly pays, they are conceptually differently.

[53] The design of an annualised salary has a visible foundation of constituent parts. An annual salary is a specific amount which may, or may not, be readily identifiable to particular component parts.

[54] Both parties are unable to provide any documentation of the constituent parts of the annual salary in Clause 36 of the Agreement. The annual salary, the reader of the Agreement is informed, includes compensation for:

“ travel time;

• working on public holidays;



• overtime loadings;



• annual leave loadings;



• any and all disabilities associated with the work and the fly in and fly out nature of the employment.” (my emphasis)

[55] A reading of the Agreement suggests that there are elements of an annual salary such as hours of work, overtime, travel time and work on public holidays. However, there are also constituent parts which are not readily identifiable – disabilities, whatever they are, relating to the work and the nature of fly in fly out employment.

[56] Clause 36 of the 2013 Agreement, similar to its predecessor agreements refers to the “annual salaries”. Subclause 36.0 of the 2013 Agreement is a discrete definition clause and states that the annual salaries set out in subclause 36.0, includes compensation for “travel time”, “working on public holidays”, “overtime loadings” and disabilities associated with “work” and the “fly in fly out” nature of employment.

[57] The word “includes” in the definition of annual salary in subclause 36.0 of the 2013 Agreement, is indicative of certain factors but not intended to be exhaustive. If the subclause was intended to be exhaustive, it could have read, “The annual salary is compensation for…” or “Annual salary means compensation for…”

[58] Besides the definition of annual salary in subclause 36.0 of the 2013 Agreement not being exhaustive, it also suggests the words “any and all disabilities associated with the work and the fly in fly out nature of the employment”, are intended to be all encompassing. This “catch all” terminology reminds me of the exchange in Lewis Carroll’s Through The Looking Glass, when Humpty Dumpty says to Alice, “when I use a word, it means just what I choose it to mean – neither more nor less”. In this case, the annual salary includes compensation for “all disabilities” associated with the work and fly in fly out nature of employment. Such disabilities can, and do, mean many things. There are too many disabilities to list or speculate upon; nevertheless, they are reduced to the word “all”.

[59] In such circumstances, it is not surprising that the parties agreed to an “annual” salary which, while mentioning certain discrete conditions, nonetheless, includes compensation for disabilities which were not discretely identified, and most probably, are almost limitless.

[60] For the above reasons, I am not inclined to adopt the approach advocated by the AWU. In my view, the AWU, faced with the difficulties of not having documents setting out the foundations for “annualised” salaries, have retrospectively attempted to reconstruct a basis for purported annualised salaries. In doing so, the AWU have, in my view, unwittingly, and fundamentally, changed the basis of the salaries from “annual” to “annualised”. In some respects, I may be held accountable for such an approach because, in my earlier Decision, I asked the parties to ascertain the various parts of which made up the annual salaries and not focus selectively on hours of work and travel time.

[61] With the benefit of further submissions and evidence, I am now satisfied that the 2013 Agreement, provides for annual salaries which were arrived at by agreement, and includes compensation for what would be ordinarily expected (hours of work, overtime penalties), but also for limitless other matters associated with the work, and the fly in fly out nature of employment. That latter part is not readily identifiable, but also incapable of being calculated as a part, or percentage, of purported annualised salary.

[62] Having distinguished between an “annual” salary and an “annualised” salary and acknowledged that the parties agreed, in the 2013 Agreement, to “annual” and not “annualised” salaries, it is still necessary to determine the meaning and application of “appropriate” in paragraph 3 of Clause 38 of the 2013 Agreement.

[63] The parties are in agreement that the change in roster from 14:7 to 7:7 results in employees working approximately 2184 hours per annum, rather than approximately 2911 hours. This reduction in hours equates to 25%.

[64] For the purpose of whether this reduction of 25% in annual salaries is appropriate or not, it is necessary to consider whether this factor alone is appropriate.

[65] In my view, there is no dispute that the reduction in hours worked is:

• readily identifiable;



• objective;



• simple;



• obvious in terms of “cause and consequence”;



• equitable across all employees; and



• would be reasonable if adopted in other circumstances such as a 14:14 roster.

[66] The AWU, as part of their retrospectively reconstructed “annualised” salaries, have attributed approximately 80% of salary to rostered hours of work; this is by far the largest component.

[67] The obvious difference between rostered hours, overtime and disabilities associated with the fly in fly out nature of the employment is that the latter’s properties are different and more difficult to calculate in monetary terms. Disabilities concerning fly in fly out employment are often personal and private. Rostered hours and overtime, whether decreased or increased, can be objectively calculated and a direct monetary consequences assessed.

[68] The AWU, in both the previous hearing and in this hearing, highlighted the increased travel associated with a 7:7 roster compared with a 14:7. Increased travel is an inescapable fact of the new work pattern. However, it is also a necessary conclusion that employees, as a result of the new work pattern, will spend less time away from home and their families which is a reduction in a disability associated with FIFO employment.

[69] Mr O’Reilly concedes that additional time at home is advantageous. 7

[70] In the case of travel, for those employees who fly to site (five (5) do not), there is the necessary increase in journeys to and from site because of the new work pattern – 7:7 roster. However, this additional encumbrance, in any event, varies from employee to employee due to where he or she lives. Such a situation demonstrates that, while travel time has been taken into account in the annual salary, it is not a factor that could be discretely identified and calculated in the make up of an annualised salary, despite the AWU’s reference to the 2005 Draft FIFO Agreement.

[71] No agreement was reached on the 2005 Draft FIFO regarding FIFO arrangements. 8

[72] Mr O’Reilly concedes that trying to build up FIFO annualised salaries from residential salaries is different. It is like comparing apples with oranges. 9

[73] During the negotiations for the 2013 Agreement, there was a request by Mr O’Reilly to have the “formula” for the annual salary to be included in the 2013 Agreement. The Employer responded, “FRS do not have the breakdown and will not be committing resources to do a breakdown”. 10 Subsequently, this issue was reduced to an analysis of the hourly rate.11 The result of this analysis was a meeting note, which records, “FRS did figures working up from 2005 CMM EBA hourly rate and note current local hourly rate is better”. This is hardly surprising in view of the “all inclusive” rate of an annual salary reduced to an hourly rate.12 At this point, it appears that this line of enquiry in negotiations ceased.13

[74] FRS also has a 14:14 roster in which the reduction of salary was also 25%. 14 Obviously in this case, travel time is less but the Employer considers working hours also to be the determinant factor for an appropriate salary, notwithstanding less travelling time.15

[75] The AWU submit that there is negligible difference between its calculation using the 1993 Award, 2002 Agreement and the 2005 Draft FIFO Agreement and the actual 2006 annual salaries. The Employer submits that the Award had no relevance 16, and in any event, salaries were based on market conditions.

[76] While the Employer has not agreed with the AWU methodology, it has given uncontested evidence that, even if such a methodology was appropriate, some of the factors adopted, such as the Pettibone and Palfinger Crane Operators allowances are not applicable. 17 Further, the AWU submit that the CMM Allowance at subclause 3.3.2 of the 2002 Agreement is not applicable because it includes an allowance for meals. Currently all employees are provided meals.18

[77] Mr Clancy has worked for Fluor for 16 years.

[78] Mr Clancy’s evidence was the most relevant to this dispute. Mr Clancy was the lead negotiator for the 2002 and 2006 Agreements. The latter saw the introduction of the FIFO arrangements.

[79] Mr Clancy conceded that the 2002 Agreement was used initially for a small group of employees in a trial of a FIFO work arrangement. However, this arrangement was not consistent with the Employer’s cultural objective and generally inconsistent with what was happening in the mining and resource sector, which had adopted consistent regular fortnightly salary payments. 19

[80] Mr Clancy’s evidence is that, as the lead negotiator for the 2006 Agreement, he did not refer to or utilise the 1993 Award or 2002 Agreement, as the basis for proposed annual salaries. 20 Mr Clancy cannot recall sighting the 2005 Draft FIFO Agreement.

[81] Mr Clancy’s evidence is that he undertook a market survey of annual salaries which were being paid in the Pilbara region and salaries in Western Australia and nationally for similar work. This matrix became the basis for his negotiations for the 2006 Agreement. 21

[82] I have no reason, nor did Mr O’Reilly, to dispute Mr Clancy’s account of the Employer’s approach to the 2006 Agreement.

[83] Finally, Mr Clancy’s evidence is that he does not recall seeing or discussing the 2005 Draft FIFO Agreement during the negotiations for the 2006 and 2008 Agreements.

[84] Mr Clancy’s uncontested evidence is that the Employer’s approach to a market based annual salary was to avoid annualised salaries and open [them] up to further claims if there was a change to one of the components [which made up an annualised salary]. 22

[85] Notwithstanding, Mr Clancy’s interchangeable use of “annualised” and “annual” in his written evidence, I am satisfied that his unambiguous evidence was that the annual salaries constructed in the 2006 Agreement, were based on a market survey and not annualised salaries which were aggregated from discrete component parts. Mr Clancy resisted, in subsequent negotiations in 2008, an attempt by the AWU to retrospectively reconstruct the 2006 annual salaries. 23

CONCLUSION

[86] In conclusion, the AWU, on behalf of its members, has disputed the Employer’s decision to reduce the annual salaries by 25% on the introduction of the new 7:7 FIFO roster. Previously, the employees worked a 14:7 FIFO roster.

[87] The dispute was referred to the Commission pursuant to Clause 8 of the 2013 Agreement.

[88] Paragraph 3 of Clause 38 of the 2013 Agreement enables, in the case of a change of roster, for annual salaries to be changed to reflect the change of work pattern. Any change in salaries must be appropriate and based upon the existing salaries.

[89] Salaries in the 2013 Agreement are expressed as “annual” salaries.

[90] Annual salaries are defined in subclause 36.0 of the 2013 Agreement and are all inclusive and cannot be, either historically or contemporaneously, disaggregated into constituent parts. In such a situation, the annual salaries cannot be disassembled and changes made to various components, to arrive at appropriate salaries for the new work pattern.

[91] For the reasons set out above, having considered the submissions, evidence and all the circumstances, I am satisfied that the approach adopted by the Employer, with respect to the salaries on the introduction of the 7:7 roster, is appropriate.

[92] Pursuant to Clause 8 of the 2013 Agreement, this is my Decision with respect to the dispute.

COMMISSIONER

Appearances:

E Douglas on behalf of the Australian Workers’ Union.

E Hartley of counsel on behalf of Fluor Rail Services Pty Ltd.

Hearing details:

2015:

Perth,

14 March.

 1   Transcript PN283

 2   Cockerel [41]

 3   Applicant’s submission – para [3]

 4   Exhibit A8 (3)

 5   Exhibit R10 (12-15)

 6   Exhibit R5 (22)

 7   Transcript PN372

 8   Transcript PN368

 9   Transcript PN380

 10   Exhibit A12 (7)

 11   Exhibit A12 (11)

 12   Exhibit A12 (22)

 13   Transcript PN604

 14   Transcript PN451

 15   Transcript PN450 to PN452.

 16   Transcript PN456

 17   Transcript PN467

 18   Transcript PN469

 19   Exhibit R10 (7)

 20   Exhibit R10 (13)

 21   Exhibit R10 (13)

 22   Exhibit R10 (16)

 23   Exhibit R10 (26)

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