Australian Workers' Union v John Holland Pty Ltd, Lendlease Engineering Pty Ltd & Bouygues Construction Australia Pty Ltd t/a Cross Yarra Partnership
[2020] FWC 4319
•10 NOVEMBER 2020
| [2020] FWC 4319 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Australian Workers’ Union
v
John Holland Pty Ltd, Lendlease Engineering Pty Ltd & Bouygues Construction Australia Pty Ltd t/a Cross Yarra Partnership
(C2019/7267)
DEPUTY PRESIDENT MANSINI | MELBOURNE, 10 NOVEMBER 2020 |
Dispute arising under an enterprise agreement.
[1] This decision relates to an application lodged by the Australian Workers’ Union (AWU) under s 739 of the Fair Work Act 2009 (Cth) (Act) and the dispute settlement procedure in the Melbourne Metro Tunnel and Stations Project Greenfields Agreement 2018-2022 (Agreement).
[2] The employer respondents are joint venture partners in the Cross Yarra Partnership, responsible for undertaking civil construction and tunnelling works at Melbourne Metro Tunnel sites (CYP).
[3] The present dispute concerns the correct rate of pay for employees engaged in tunnelling work for CYP during the period 25 December 2019 to 1 January 2020 inclusive (Relevant Period). In summary, the AWU contends that this was a Christmas shutdown that some tunnelling operations employees were required to work and therefore 300% of the applicable hourly rate in the Agreement should have been paid for work on any day in the Relevant Period. CYP opposes.
Preliminary matters
[4] The application was filed on 28 November 2019.
[5] On 9 December 2019, a conciliation conference was convened before me and attended by representatives of the AWU and CYP. There was no agreed resolution of the dispute. The parties agreed to arbitration before me and proposed a program for the exchange of materials and hearing. This was extended five times by consent including by reason of the challenges of COVID-19 restrictions.
[6] The parties filed an agreed question for arbitration, an agreed statement of facts with supporting documents and outlines of submissions. No witness evidence was filed.
[7] On 17 August 2020, in accordance with the wishes of the parties, I heard oral submissions by video (MS Teams). Both parties were permitted legal representation, pursuant to clause 4.1.6 of the dispute settlement procedure and s 596 of the Act.
[8] The Agreement is organised in “two divisions”: the Melbourne Metro Tunnel and Stations Project Construction Work Agreement (Construction Work Agreement) and the Melbourne Metro Tunnel and Stations Project Tunnelling Work Agreement (Tunnelling Work Agreement). This dispute is about the Tunnelling Work Agreement.
[9] There is no dispute 1 and I am satisfied that the Agreement covers and applies to:
a) the AWU, pursuant to s 201(2) of the Act, the decision of Commissioner Lee to approve the Agreement in [2018] FWCA 7150 and clause 2.1.1(b) of the Tunnelling Work Agreement;
b) each of the respondent entities earlier defined as CYP, when each individually employs an employee in the name of The Cross Yarra Partnership Design and Construct Joint Venture, pursuant to clause 2.1.1(a) of the Tunnelling Work Agreement; and
c) persons employed by one of the respondent entities earlier defined as CYP, engaged in classifications prescribed in Appendix A of the Tunnelling Work Agreement on the Project (as defined and within the scope of clause 2.2), who were engaged to build a new underground station at 131 Laurens Street, North Melbourne VIC 3051 (the Arden Site) during the Relevant Period (Tunnel Employees).
[10] There is also no dispute 2 and I am satisfied that:
a) the dispute is about a matter arising from the Tunnelling Work Agreement; and
b) the prerequisites to the Commission’s involvement have first been followed,
such that the dispute settlement procedure at clause 4.1 of the Tunnelling Work Agreement is invoked and the Commission is empowered to resolve the dispute in accordance with step 4.1.4 of that procedure and s 739 of the Act.
The agreed facts
[11] The facts relevant to the dispute are not contentious and summarised as follows.
[12] The State Government of Victoria contracted CYP to undertake the construction of the stations and tunnels of the Melbourne Metro Project (Project).
[13] From around 28 November 2018, John Holland Pty Ltd on behalf of CYP has employed a number of employees to undertake tunnelling works in accordance with the Tunnelling Work Agreement. From around March 2019, Tunnel Employees have been engaged at the Arden Site.
[14] CYP established rosters for the Tunnel Employees at the Arden Site as follows:
a) initially, a two panel roster of 12 hour shifts in a cycle of 5 days on and 2 days off followed by 5 nights on and 2 days off (5/2/5/2 Roster); and
b) from 7 October 2019, in addition to some employees continuing on the 5/2/5/2 Roster, a three panel roster of 12 hour shifts in a cycle of 7 days on and 3 days off followed by 7 nights on and 4 days off (7/3/7/4 Roster).
[15] On 6 November 2019, CYP provided to the Tunnel Employees at the Arden Site a memorandum and revised roster informing them that the normal 7/3/7/4 Roster would be followed until 24 December 2019 and then change to a surveillance “bubble watch” roster from 24 December before resuming the normal 7/3/7/4 Roster on 2 January 2020. 3 A copy of the memorandum is before the Commission.
[16] On 18 November 2019, CYP provided to the Tunnel Employees at the Arden Site a memorandum which asked employees not specifically rostered on the “bubble watch” crew to utilise their accrued RDO entitlements and/or annual leave accruals, and stated that any employee who had not applied for leave would be required to attend work as per their scheduled 7/3/7/4 Roster. A copy of the memorandum is before the Commission.
[17] On 26 November 2019, CYP published a revised roster for the Tunnel Employees at the Arden Site for the period commencing 18 November 2019 until and including 5 January 2020. A copy of the roster is before the Commission.
[18] On 12 December 2019, and further to the leave applications that were received by CYP after 26 November 2019, CYP published a revised roster for the Tunnel Employees at the Arden Site for the period commencing 9 December 2019 until and including 2 February 2020. A copy of the roster is before the Commission.
[19] During the Relevant Period, the Tunnel Employees at the Arden Site on the three panels of the 7/3/7/4 Roster worked and were paid by CYP (subject to any approved leave) per Attachment F to this decision and in accordance with CYP’s understanding that clause 9.6.2 applied.
The agreed question
[20] The parties agreed that the dispute would be resolved by the Commission determining the following question:
“Were the Tunnel Employees at Arden who worked during the Relevant Period entitled to be paid 300% of the hourly rate prescribed in the Tunnelling Work Agreement for their classification for any work so worked during the Relevant Period?” 4
The Agreement
[21] As noted above, the Agreement is organised in “two divisions”: the Construction Agreement and the Tunnelling Work Agreement. A prefacing “Outline” provides that each division has different scope and application.
[22] This dispute is about Tunnel Employees, who are continuous shiftworkers covered by the Tunnelling Work Agreement. That is a term defined at clause 2.5 of the Tunnelling Work Agreement as:
“for the purpose only of the additional week of annual leave provided by the NES, a Continuous Shiftworker means an Employee engaged to work in a system of consecutive shifts throughout the 24 hours of each of at least six (6) consecutive days without interruption (except during breakdown or meal breaks or due to unavoidable causes beyond the control of CYP) and who is regularly rostered to work those shifts”.
[23] The resolution of this dispute concerns the correct interpretation, in particular, of the Tunnelling Work Agreement provisions at clause 10.1.7 (Easter and Christmas Shutdown), clause 9.6 (Tunnelling Operations Shiftwork) and Appendix H (Indicative Roster of Ordinary Hours and RDO Calendar 7/3/7/4). Those provisions are extracted in their entirety at Attachments B, C and D to this decision.
[24] The placement of these provisions within the Tunnelling Work Agreement is as follows:
Clause 9. Hours of Work, Shiftwork & Overtime
9.1 Hours of Work
9.2 Breaks
9.3 Overtime
9.4 Public Holiday Work
9.5 Minimum break between days or shifts
9.6 Tunnelling Operations Shiftwork
9.6.1 Roster and scheduled RDOs
9.6.2 Loadings
[…]
9.7 Rostered Days Off
[25] Clause 9.6.1(b)(ii) provides that the 7/3/7/4 Roster is an indicative roster “as set out in Appendix H”. Clause 9.6.1(c) in turn provides that “the roster or rosters established shall designate days on and off, ordinary hours and overtime hours and scheduled RDOs”. Clause 9.6.2 goes on to provide a series of “loadings” including for ordinary hours on public holidays (at (d)).
[26] Clause 10.1.7 is placed within the leave provisions of the Tunnel Work Agreement, and specifically the annual leave provisions, as follows:
Clause 10. Leave
10.1. Annual Leave
[…]
10.1.7 Easter and Christmas Shutdown
[…]
10.2 Public Holidays
[…]
[27] The prescribed hourly rates referenced at clause 10.1.7(b) of the Tunnelling Work Agreement are found at Appendix B. 5
[28] It is not contentious that the Construction Agreement largely mirrors the Tunnelling Work Agreement however there are some important differences, considered further below. 6
The competing contentions
AWU submissions
[29] The AWU disputes the payments made to the Tunnel Employees at the Arden Site for the Relevant Period. It contends that the Tunnel Employees should have been paid 300% of the hourly rate prescribed in the Tunnelling Work Agreement for their classification for any work on any day of the Relevant Period in accordance with clause 10.1.7(b) of the Tunnelling Work Agreement.
[30] The AWU says clause 9.6 (titled “Tunnelling Operations Shiftwork”, placed within clause 9 “Hours of Work, Shift Work & Overtime”) positions tunnelling operations shiftworkers as employees defined as such according to their pattern or hours of work. It highlights clause 9.6.1(c), which provides that the indicative rosters for tunnelling operations shiftworkers shall designate days on and off, ordinary hours, overtime hours and scheduled RDOs and that each of those matters are dealt with elsewhere in clause 9. The AWU also observes that Appendix H sets out indicative ordinary hours and an RDO calendar for those working the 7/3/7/4 Roster and there is no annual leave marked in Appendix H.
[31] The AWU says that clause 10 (titled “Leave”) applies to all employees covered by the Tunnel Work Agreement. 7 Clause 10.1.7 (titled “Easter and Christmas Shutdown”, placed within clause 10 “Leave” and clause 10.1 “Annual Leave”) provides specific leave benefits during Easter and Christmas shutdowns. The AWU contends that clause 10.1.7 sets out a detailed process whereby, in sub-paragraph (b), an employee who is required to work, who has been consulted in accordance with the procedure,8 shall be paid 300% of the hourly rate prescribed for that employee’s classification for work on any day between Christmas and New Year’s Day (and any day between and inclusive of Good Friday and Easter Monday).9
[32] Further, in the circumstances subject of this dispute, the AWU says that the criteria to be paid the 300% of the prescribed hourly rate for work during the Relevant Period was met, pursuant to clause 10.1.7, because Tunnel Employees:
a) were requested to work to meet CYP’s operational requirements, within the meaning of clause 10.1.7(e) (by its memorandum of 6 November 2019, which informed the Tunnel Employees that the normal 7/3/7/4 Roster would continue until 24 December 2019 and all tunnel activities would follow a surveillance “bubble watch” roster from 24 December 2019 to 2 January 2020 after which normal roster would resume);
b) were required to work to meet CYP’s operational requirements, within the meaning of clause 10.1.7(b) (by its memorandum of 18 November 2019, which stated that any employee who had not applied for leave would be required to attend work as per their scheduled 7/3/7/4 Roster); and
c) in fact worked during the Relevant Period, that is on days that fell between and inclusive of Christmas Day to New Year’s Day 2019 within the meaning of clause 10.1.7.
[33] The AWU points to the statutory object of achieving productivity and fairness through enterprise agreements in arguing it is fair that the Tunnel Employees be paid the additional (300%) rates provided in the enterprise agreement for working over the Christmas to New Year period. It also contends that a “broad and beneficial” construction of the clause would result in the Tunnel Employees having the benefit of the additional rates for the Relevant Period.
[34] For completeness, the AWU withdrew its alternative argument and does not now contend that this was critical or emergency works pursuant to clause 10.1.8.
[35] Put simply, the AWU submitted: clause 10.1.7 applies to the Tunnel Employees. They worked between Christmas and New Year’s Day as per paragraph 32 above. They should be paid the rates of 300% for doing so.
CYP submissions
[36] CYP rejects the AWU’s characterisation and maintains that, on the proper construction of 10.1.7, there is no entitlement for the Tunnel Employees to be paid 300% for each day of the Relevant Period and those that worked were correctly paid in accordance with clause 9.6.2 of the Tunnelling Work Agreement. It contends that the AWU has misconstrued clause 10.1.7 by failing to construe the plain terms of the Agreement in the context of the immediately surrounding terms and those of the Agreement read as a whole.
[37] CYP says that the “whole agreement” is the single Agreement comprised of both the Construction Agreement and the Tunnelling Work Agreement, the AWU having been party to the negotiations for and covered by both – indeed, there were no other union(s) party to the Tunnelling Work Agreement. 10 Contextually, CYP contends that the whole of the Tunnelling Work Agreement is dedicated to continuous operations and that at least some (critical) tunnelling works, such as excavation of shafts and any work supporting or necessary for tunnelling operations in the mining of the tunnel, is to “continue unimpeded” (per clause 2.5).11 In contrast, the Construction Agreement is structured as a 5 days on, 2 days off (Monday to Friday pattern) operation and there are no roster alternatives.12
[38] CYP asks the Commission to have regard to the headings (in particular, “annual leave” within which the sub-heading “Easter and Christmas shutdown” and subsequent provision subject of this dispute appears) as a textual indicator. CYP contends that each clause must be read subject to the heading if not inconsistent with it. In this case as a textual consideration, these headings point to a finding that shutdown and annual leave operate in tandem. 13
[39] CYP refers to clause 9.6.1(b)(ii) which provides for a 7/3/7/4 Roster as set out at Appendix H. It asks the Commission to accept that this indicative roster was agreed by the parties at the time the Agreement was made as being the roster that would regulate tunnelling operations. There is also an Appendix G to the Tunnelling Work Agreement which provides an indicative RDO calendar for the 5/2/5/2 Roster. CYP contends that in this Agreement the roster establishes the way the mechanics of the Agreement work; and the appendices which contain working day calendars and indicative rosters of ordinary hours and working day calendars are interrelated with and not able to be divorced from the hours of work/roster and leave/shutdown provisions in the body of the Agreement. 14 Clause 9.6.1 is said to assist, by way of example, in understanding how the rosters are to apply:
• at (a), it provides that “A roster or rosters will be established by CYP.”;
• at (b), it prescribes what the indicative rosters are; and
• then, relevantly at (i) and (ii) “The roster will include scheduled and non-scheduled RDOs. Non-scheduled will be considered as banked and may be taken in accordance with clause 9.7.3(c).”
[40] The Construction Agreement is different in that it provides a unitary roster, which CYP offers as explanation for why Appendix C to the Construction Agreement is not described as a roster but rather a working day calendar – there are no alternative options under that division of the Agreement, and so at Appendix C there are prescribed working days and non working days for each of the 2018, 2019, 2020 and 2021 calendar years (see Attachment E to this decision). Whereas, under the Tunnelling Work Agreement, there are two alternative indicative roster options and it is indicative because it sets out a pattern which extends only for the 2019 calendar year. In this respect, it is the pattern that prescribes what the actual roster will need to be with calendar days and dates changing from year to year; the actual roster or rosters will be established by CYP pursuant to 9.6.1(a). It is also noted that clause 9.1.3(b) of the Tunnelling Work Agreement defines ordinary hours for shiftworkers as Monday to Sunday whereas the mirror provision in the Construction Agreement defines ordinary hours for shiftworkers as Monday to Friday with an intention to work ordinary hours Monday to Friday.
[41] As to the clause subject of the dispute, CYP begins with sub-clause 10.1.7(a) which provides:
“Subject to clause 10.1.7(e), it is agreed that Annual Leave is to be taken as per the agreed indicative RDO/Working Day Calendars in the Tunnelling Work Agreement.” (CYP’s emphasis added)
[42] CYP contends that the plain words provide that the Easter and Christmas shutdowns to which clause 10.1.7 is directed are created by way of the taking of annual leave as per Appendix H (it argues this is also the case for the mirror provision in the Construction Agreement). In contrast to Appendix C to the Construction Agreement, it says there is no Christmas shutdown provided by the plain words of Appendix H to the Tunnelling Work Agreement. Clause 10.1.7 is a mechanism which operates in tandem with what is prescribed in the indicative roster (not the actual roster) and it is the prescription of annual leave days that need to be taken to create the shut down that is the subject of clause 10.1.7. 15 The default position under clause 10.1.7 is that, per (a), an agreed annual leave period must be observed (if there is one) and everything else (remuneration, consultation etc.) follows.
[43] Where CYP requires employees to work across the otherwise agreed shutdown period, there is provision for a “special” consultation process together with a 300% penalty (clauses 10.1.7(b) to (g)). It accepts that (b) does not expressly say “an employee ... required to work the Christmas shutdown” but argues that the penalty under (b) only applies if an employee is required to work in the face of the shutdown. The agreed shutdown is described and informed by (c) and (g), established by reading the clause as a whole, and only then do the words “for work on any day” have specific work to do. 16 Further, that none of the sub-clauses of 10.1.7 say expressly that the period or days referred to in (b) are the agreed shutdown period.17 It also points to (d) and (e) in support of the contention that the starting point for the Christmas shutdown provision is that an employee is to be on a programmed absence rather than with a right to be at work.18 As to (f), CYP says that its reference to “this period” must be to that at (a), not (b) as the AWU contends. In any event it is read with (g), which completes (b) and using the title of clause 10.1.7, brings the clause together by providing that:
“where work is required during the Easter and Christmas shutdown, CYP will consult...” (CYP’s emphasis added).
[44] The sub-clause at (g), it argues, requires majority agreement to change what is otherwise a pre-agreed period of annual leave. 19
[45] CYP submits that another relevant textual indicator is that the Construction Work Agreement operates in the same way, except that the indicative roster at Appendix C to the Construction Work Agreement includes agreed shut down periods. Appendix C is still an indicative roster, but it writes in a “Christmas closedown” which CYP contends is so substantially similar to “shutdown” as to have the same meaning. Where there is no shutdown over Easter prescribed by Appendix C, it is created by other means (that is, public holidays and RDOs) however on CYP’s argument does not engage with the mirroring clause 10.1.7 in the Construction Agreement either. CYP emphasises that the parties plainly agreed to something different when they negotiated the Tunnelling Work Agreement and that was to support the continuous nature of the operation. 20
[46] Further, that the penalties for working on public holidays as a consequence of working the indicative roster at Appendix H of the Tunnelling Work Agreement are at clause 9.6.2(d).
[47] CYP says that the Tunnel Employees did in fact work in accordance with their indicative roster during the Relevant Period. It asks the Commission to accept that the pattern worked by those Tunnel Employees who did work over the Relevant Period is precisely the pattern prescribed at Appendix H. It contends that those Tunnel Employees who did work during the Relevant Period were invited and even encouraged to take leave (confirmed by the 18 November 2019 memorandum), and it was agreed that those people would work as distinct from a shutdown or requirement to take annual leave being mandated by CYP. 21
[48] CYP also refers to clause 10.1.8 of the Tunnelling Work Agreement as providing a strong textual guide to the intricacy and importance of annual leave within the scheme of 10.1.7, in that it refers to “the leave” being rescheduled not “a leave” or “any leave”. 22
[49] Finally, CYP urged the Commission to adopt its construction which it contends makes sense of all the words whilst not creating an entitlement where no entitlement arises. In this respect, it argues that on its construction of clause 10.1.7 the provision is not without work to do, or otiose, but rather in abeyance on the factual circumstances relevant to this dispute. 23
[50] In summary, CYP argues: the Tunnel Employees who worked during the Relevant Period did so in accordance with their indicative roster and were correctly paid the appropriate penalty rates for weekends and public holidays in accordance with the agreed scheme at clause 9.6.2 of the Tunnelling Work Agreement. As there is no Christmas shutdown provided for in the indicative roster in Appendix H, there is no shutdown period from which the necessary deprivation arises in order to qualify for the consultation and penalty regime at clause 10.1.7. It is not open for the Commission to rewrite the Agreement to give effect to an anteriorly derived notion of fairness as the AWU contends.
AWU reply submissions
[51] The AWU characterises CYP’s construction as comprised of three limbs, as follows: that the Christmas shutdown period is created by way of taking annual leave; that the applicable public holiday penalties for Tunnel Employees who worked the Relevant Period are provided instead at clause 9.6; and that the Tunnel Employees who worked the Relevant Period did so in accordance with their indicative roster. The AWU opposed each argument and said its construction should be preferred in order to give all of the words of clause 10.1.7 some work to do.
[52] In reply, the AWU emphasises its contention that the entitlement to be paid 300% arises from working on the days specified at sub-clause 10.1.7(b) of the Tunnelling Work Agreement. That period is defined therein (at (b)) as any day between and inclusive of Christmas Day and New Year’s Day. Further, that 10.1.7(e) provides that CYP may request any employee to work during the Christmas period where necessary to meet its operational requirements and (f) provides a commitment for CYP to give as much notice as possible regarding the proposal to work. Accordingly, the additional rates and the relevant “deprivation” arise from work over the stipulated periods. 24
[53] Now dealing with its reply to CYP’s submissions in turn.
[54] First, it says that the 300% rate at clause 10.1.7(b) is not dependent on annual leave being specified in the indicative roster of ordinary hours and RDO calendars. The Christmas shutdown, or Christmas period, it says, is defined by dates as provided at 10.1.7(b) not by reference to a shutdown period or annual leave being marked in the appendices to the Agreement. 25 There is no annual leave marked or mentioned in Appendix H at all. If CYP’s argument were correct, then in the absence of annual leave being marked in Appendix H (or indeed Appendix G which is the only other indicative roster in the Tunnelling Work Agreement and silent as to annual leave) there would be no need for clause 10.1.7(b) and indeed the remainder of 10.1.7 would be superfluous.26
[55] The AWU cautions against drawing comparisons between the Construction Agreement’s Appendix C (a “Working Day” calendar) and the Tunnelling Agreement’s Appendix H (an “Indicative Roster of Ordinary Hours and RDO” calendar) saying to compare the two is like comparing apples with oranges. Appendix H should be read as an expectation of hours to be worked which is distinct from Appendix C of the Construction Agreement which sets out days expected to be worked or to have off. 27 Nonetheless it notes that, although annual leave is marked on Appendix C, it has no annual leave marked for the Easter period (though the Easter period for each calendar year is marked as time off comprised of public holidays and scheduled RDOs).28 It also points to the fact that not all employees engaged under the Tunnelling Work Agreement are continuous shiftworkers and rather, it applies to both 5/2/5/2 and 7/3/7/4 Rosters.29
[56] Second, penalty rates for the Tunnel Employees are not simply provided for in clause 9 of the Tunnelling Work Agreement. For clause 9.6.1(d) to provide the only source of public holiday pay (at the rate of 150%) then the Tunnel Employees would need to be excluded from the application of clause 10.1.7 (which the AWU says they are not, and the parties could have provided for such exclusion but did not). In support of this position, it reiterates that clause 10 of the Tunnelling Work Agreement applies to the Tunnel Employees. It also says that when the Agreement is read in context and as a whole, there is no suggestion that construction workers who work on public holidays during the Christmas and Easter periods would not receive the rates of 300% under their parallel provision and so too should it be for the Tunnel Employees. 30
[57] Third, the AWU argues that the Tunnel Employees did not work in accordance with the indicative 7/3/7/4 Roster at Appendix H. Rather, they worked according to a “bubble watch” or surveillance roster. The AWU submits that the actual roster worked (which is before the Commission as an agreed fact): has the Relevant Period marked with a red ring; the Relevant Period is defined as “end of year shutdown” in the key; and is different to the indicative roster for ordinary hours and RDO calendar at Appendix H. Specifically, the periods up to and after the Relevant Period have three full crews (eleven employees per crew) scheduled to work rotating day and night shifts, whereas the days that fall within the Relevant Period have a limited number of eight employees scheduled to work a “much reduced” roster including some employees working “reduced activities”. 31 At the hearing, the AWU also submitted that the number of days that were actually worked in accordance with the surveillance roster do not reflect the pattern that is at Appendix H.32 Tunnel Employees were invited to utilise their leave and otherwise required to work the Relevant Period. To the extent that CYP followed a process to introduce a change to the roster, it is not conceded that the process at clause 10.1.7(g) was followed.33 It is contended that CYP required the Tunnel Employees who worked to work during the Relevant Period for operational reasons and therefore they should be paid the 300% loading pursuant to clause 10.1.7(b) of the Tunnelling Work Agreement.
Consideration
[58] The parties agreed that the Commission has jurisdiction to resolve this dispute by way of arbitration. 34
[59] The parties also agreed the principles that apply to the interpretation of industrial instruments. The construction of an enterprise agreement begins with a consideration of the ordinary meaning of the relevant words. The text, context and purpose of the provisions of an industrial instrument determine its legal meaning. 35 Context might appear from the text of the agreement viewed as a whole, the disputed provision’s place and arrangement in the agreement and the legislative context under which the agreement was made.36 The AWU also urged the Commission to find that a narrow and strict construction is inapt: a broad and beneficial construction is appropriate.37
[60] As earlier noted, there were some agreed facts related to the rostering context and what actually happened in relation to the Tunnel Employees during the Relevant Period.
[61] It is not contentious that Appendix C to the Construction Agreement provides an advance indication that construction employees will utilise their annual leave over the relevant dates of the Christmas period whereas Appendix H to the Construction Agreement provides an advance indication that tunnelling operations will continue to work over the Christmas (and Easter) periods. In short, this dispute is about whether, for the discrete dates defined as the Relevant Period, the 300% rate at 10.1.7(b) was intended to apply for work on any day referenced in 10.1.7(b) (as the AWU contends) or whether it is intended to apply only for a pre-agreed shutdown period which is defined in the indicative roster (Appendix H in this case) or otherwise agreed.
[62] The starting point in construing clause 10.1.7(b) is to commence with its plain words:
“An Employee required to work who has been consulted with in accordance with the procedure in clause (f) shall be paid 300 percent of the hourly rate prescribed in the Tunnelling Work Agreement for the Employee’s classification, for work on any day, between and inclusive of, Christmas Day and New Year’s Day and any day, between and inclusive of Good Friday and Easter Monday.”
[63] Notwithstanding some unfortunate drafting, there is plainly provision for payment at 300% of the hourly rate prescribed, relevantly applicable to an employee:
• required to work;
• who has been consulted with, in accordance with the procedure that may be found elsewhere in clause 10.1.7, 38
who shall in those circumstances be paid the 300% rate for work on any day between and inclusive of Christmas Day and New Year’s Day.
[64] Whilst the AWU’s construction of clause 10.1.7(b) is attractive, when regard is had to the whole of clause 10.1.7 and the entirety of the Agreement, I prefer that of CYP as most persuasive. The Tunnel Employees were not required to work during the Relevant Period in a manner which engages clause 10.1.7(b) and would therefore justify the payment of an extra penalty because there was no “agreed shutdown”. This interpretation is better understood when regard is had to the Agreement as a whole (that is, as the parties respectively urged, with regard to both divisions of the Agreement).
[65] The indicative roster at Appendix H is an important part of the Agreement, equally binding and must be read together with the provisions of the body of the Agreement to understand its provisions as a whole. 39 Appendix H is an “indicative roster of ordinary hours and RDO Calendar”, which fixes the expectation as to the pattern of work. It is for CYP to establish the roster(s) which shall designate days on and off, ordinary hours, overtime and scheduled RDOs consistent with that indicative roster and as provided at clause 9.6.1. Unlike the indicative “Working Day Calendar” at Appendix C of the Construction Agreement, which specifies working and non-working days for each day of the 2018, 2019, 2020 and 2021 calendar years and clearly marks on each the dates of the “Xmas Closedown”, there is no closedown or shutdown fixed over the Relevant Period under Appendix H of the Tunnelling Work Agreement. Rather, work is marked to continue over the period from and inclusive of Christmas Day to New Year’s Day. There is no “agreed shutdown” or “closedown”. In my opinion, clause 10.1.7 does not dictate a Christmas shutdown and most sense can be drawn from all provisions if the obligations and entitlements at 10.1.7 are read in conjunction with the rostering provisions at 9.6, Appendix H and the placement of these provisions within the Tunnelling Work Agreement. In the absence of any evidence as to the intention of the parties, and noting that the AWU is expressly named as party to both divisions of the Agreement, it is logical to infer that the differences in the drafting of Appendix C to the Construction Agreement and Appendix H of the Tunnelling Work Agreement were deliberate and designed to accommodate the obvious and uncontentious operational differences in terms of operational requirements.
[66] I do not accept that this preferred construction renders clause 10.1.7 of no work to do. It is at least conceivable that the additional 300% rate could apply to employees under the Tunnelling Work Agreement in some circumstances, such as following a consultation process in accordance with its terms. In any event, it is not for the Commission to strain to create an entitlement where no entitlement arises (even if that may produce a more desirable or beneficial outcome). Further, it is not contentious that the Commission should read Appendix H as an expectation of the hours to be worked; that during the Relevant Period CYP rostered reduced numbers of Tunnel Employees to perform reduced duties; and that there was an agreed shutdown applicable to other employees and in place elsewhere on the site. Notwithstanding the reduced numbers, the modified roster plainly follows the same 7/3/7/4 Roster pattern and I am satisfied is consistent with the indicative roster and RDO calendar at Appendix H.
[67] The statutory context in which the Agreement was made only assists in appreciating that an employer may not direct the taking of leave as of right and only if “reasonable”. What is reasonable may include where the employer’s enterprise is being shut down and an enterprise agreement may include such term. 40 However in this case, CYP’s enterprise was not entirely shut down and there was no “agreed shutdown” in the Tunnelling Work Agreement. There is also a minimum entitlement to absence on a public holiday except where the employer request is “reasonable”: (having regard to statutory criteria including the type of employment and remuneration etc.) and which must not be unreasonably refused.41
[68] Having found CYP’s arguments to be more persuasive, and noting their arguments are set out in detail above, I do not repeat them again here. Having regard to all of the materials and submissions before the Commission, I am of the opinion that the better view is that the days specified in (b) are the days on which the 300% penalty is paid if an “agreed shutdown” is required to be worked. For the Tunnel Employees, the Tunnelling Work Agreement provides for a right to attend for work over the dates that fall between Christmas Day and New Year’s Day and may otherwise apply to take leave on those date(s) in accordance with the annual or other leave provisions.
Conclusion
[69] For the above reasons, and in the context of this dispute, the answer to the question posed by the parties for determination by the Commission is ‘no’: the Agreement does not in these circumstances entitle the Tunnel Employees (as defined in this decision) to be paid 300% of the hourly rate prescribed in the Tunnelling Work Agreement for their classification for any work so worked during the Relevant Period.
DEPUTY PRESIDENT
Appearances:
Ms Knowles of counsel for the Applicant.
Mr Gianatti of KHQ Lawyers for the Respondent.
Hearing details:
2020
Melbourne (by video)
17 August 2020
Printed by authority of the Commonwealth Government Printer
<PR721878>
ATTACHMENT A – GLOSSARY OF TERMS DEFINED IN THIS DECISION
Act | the Fair Work Act 2009 (Cth) |
Agreement | the Melbourne Metro Tunnel and Stations Project Greenfields Agreement 2018-2022 |
Arden Site | 131 Laurens Street, North Melbourne VIC 3051 |
AWU | the Australian Workers’ Union |
Construction Work Agreement | the Melbourne Metro Tunnel and Stations Project Construction Work Agreement |
CYP | John Holland Pty Ltd, Lendlease Engineering Pty Ltd and Bouygues Construction Australia Pty Ltd, the employer respondents and joint venture partners in the Cross Yarra Partnership responsible for undertaking civil construction and tunnelling works at Melbourne Metro Tunnel sites |
NES | the National Employment Standards in the Act |
Project | the Melbourne Metro Project |
Relevant Period | the period 25 December 2019 to 1 January 2020 inclusive |
Tunnel Employees | persons employed by one of the entities defined as CYP engaged in classifications prescribed in Appendix A of the Tunnelling Work Agreement on the Project (as defined and within the scope of clause 2.2), including those who were engaged to build a new underground station at the Arden Site during the Relevant Period |
Tunnelling Work Agreement | the Melbourne Metro Tunnel and Stations Project Tunnelling Work Agreement |
5/2/5/2 Roster | a two panel roster of 12 hour shifts in a cycle of 5 days on and 2 days off followed by 5 nights on and 2 days off |
7/3/7/4 Roster | a three panel roster of 12 hour shifts in a cycle of 7 days on and 3 days off followed by 7 nights on and 4 days off |
ATTACHMENT B – CLAUSE 9.6 OF THE TUNNELLING WORK AGREEMENT
ATTACHMENT C - CLAUSE 10.1.7 OF THE TUNNELLING WORK AGREEMENT
ATTACHMENT D – APPENDIX H TO THE TUNNELLING WORK AGREEMENT
ATTACHMENT E – APPENDIX C TO THE CONSTRUCTION WORK AGREEMENT
ATTACHMENT F
According to the Agreed Statement of Facts, the Tunnel Employees at the Arden Site on the three panels of the 7/3/7/4 Roster worked and were paid by CYP (subject to any approved leave) during the Relevant Period as follows:
a) Panel 1:
Date | Rostered / Worked | Paid | Tunnelling Work Agreement applied per CYP’s understanding |
Wednesday 25 Dec | Day Shift | 150% loading | clause 9.6.2(d) |
Thursday 26 Dec | Day Shift | 150% loading | clause 9.6.2(d) |
Friday 27 Dec | Day Shift | No loading | clause 9.6.2(a) |
Saturday 28 Dec | Day Shift | 100% loading | clause 9.6.2(c) |
Sunday 29 Dec | Day Shift | 100% loading | clause 9.6.2(c) |
Monday 30 Dec | Off day | - | - |
Tuesday 31 Dec | Off day | - | - |
Wednesday 1 Jan | Off day | - | - |
b) Panel 2:
Date | Rostered / Worked | Paid | Tunnelling Work Agreement applied per CYP’s understanding |
Wednesday 25 Dec | Night Shift | 150% loading | clause 9.6.2(d) |
Thursday 26 Dec | Off day | - | - |
Friday 27 Dec | Off day | - | - |
Saturday 28 Dec | Off day | - | - |
Sunday 29 Dec | Off day | - | - |
Monday 30 Dec | Day Shift | No loading | clause 9.6.2(a) |
Tuesday 31 Dec | Day Shift | No loading | clause 9.6.2(a) |
Wednesday 1 Jan | Day Shift | 150% loading | clause 9.6.2(d) |
c) Panel 3:
Date | Rostered / Worked | Paid | Tunnelling Work Agreement applied per CYP’s understanding |
Wednesday 25 Dec | Off day | - | - |
Thursday 26 Dec | Night Shift | 150% loading | clause 9.6.2(b) |
Friday 27 Dec | Night Shift | 50% loading | clause 9.6.2(b) |
Saturday 28 Dec | Night Shift | 100% loading | clause 9.6.2(c) |
Sunday 29 Dec | Night Shift | 100% loading | clause 9.6.2(c) |
Monday 30 Dec | Night Shift | 50% loading | clause 9.6.2(b) |
Tuesday 31 Dec | Night Shift | 50% loading | clause 9.6.2(b) |
Wednesday 1 Jan | Night Shift | 150% loading | clause 9.6.2(d) |
1 Agreed Question for Arbitration filed on 16 March 2020, at paragraph 2.
2 Agreed Question for Arbitration filed on 16 March 2020, at paragraph 14.
3 The memorandum refers to the “normal roster” but, for present purposes, paragraph 8 of the Agreed Statement of Facts filed on 16 March 2020 provides that the parties agree this was a reference to the normal 7/3/7/4 Roster.
4 Agreed Question for Arbitration filed on 16 March 2020, at paragraph 15; subsequently narrowed (which was not opposed), see paragraph 2 of the Applicant’s Reply Submissions filed on 7 August 2020 and Transcript of Hearing at PN8.
5 Transcript of Hearing at PN104.
6 Transcript of Hearing at PN72.
7 Except where, for example, a continuous shiftworker is therein conferred an additional benefit such as an extra weeks’ annual leave per clause 10.1.1, a factor the AWU says demonstrates that the Tunnel Employees are contemplated to come within clause 10 – see Applicant’s Outline of Submissions at paragraph 10.
8 Referenced therein, which it is understood contains a typographical error such that the cross-reference should be to the procedure at (g) not (f) of 10.1.7 – see Respondent’s submissions at PN181 of the Transcript of Hearing which was not opposed.
9 Transcript of Hearing at PN29.
10 Transcript of Hearing at PN106, 107 and 133.
11 Transcript of Hearing at PN115 and 135-136.
12 Transcript of Hearing at PN138.
13 Ragless v Prospect District Council [1922] SASR 299; PN163.
14 Transcript of Hearing at PN112; PN156 and Tenix Defence Systems Pty Limited Certified Agreement 2001-2004, Print PR917548, 9 May 2002.
15 Transcript of Hearing at PN114.
16 PN130.
17 Transcript of Hearing at PN184.
18 Transcript of Hearing at PN189.
19 Transcript of Hearing at PN194.
20 Transcript of Hearing at PN174-180.
21 Transcript of Hearing at PN220-221.
22 Transcript of Hearing at PN197.
23 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[2017] FWCFB 3005.
24 AWU’s emphasis – see Applicant’s Reply Submissions at paragraph 5.
25 Transcript of Hearing at PN32, 35 and 75; and the period at clause 10.1.7(c) is a period greater than, or an extension of, the period at 10.1.7(b).
26 Applicant’s Reply Submissions at paragraph 12; Transcript of Hearing at PN71.
27 Applicant’s Reply Submissions at paragraph 8; see also Transcript of Hearing at PN68-71.
28 Applicant’s Reply Submissions at paragraph 16.
29 Transcript of Hearing at PN239 and 240.
30 Transcript of Hearing at PN40 and 43-45.
31 Transcript of Hearing at PN47 and 50-52.
32 Transcript of Hearing at PN241.
33 Transcript of Hearing at PN255.
34 Agreed Question for Arbitration filed on 16 March 2020, at paragraph 14.
35 Maribyrnong City Council v Australian Municipal, Administrative, Clerical and Services Union [2019] FCA 773 at [39]–[42]; Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16]; Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at 246–7 [2]; 270–1 [96] as cited at paragraph 3 of the Applicant’s Outline of Submissions filed on 10 July 2020.
36 Australian Manufacturing Workers’ Union v Berri Pty Ltd (2017) 268 IR 285, p310 at [114] as cited at paragraph 3 of the Applicant’s Outline of Submissions filed on 10 July 2020 and paragraph 7 of the Outline of Submissions of the Respondents.
37 Maribyrnong City Council v Australian Municipal, Administrative, Clerical and Services Union [2019] FCA 773 at [39]–[42] as cited at paragraph 3 of the Applicant’s Outline of Submissions filed on 10 July 2020.
38 That is, 10.1.7(g) not 10.1.7(f), which CYP submitted is a typographical error (not opposed by the AWU); Transcript of Hearing at PN181.
39 Tenix Defence Systems Pty Limited Certified Agreement 2001-2004, Print PR917548, 9 May 2002.
40 Section 93 of the National Employment Standards in the Act (NES).
41 Section 114 of the NES.
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