“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Ford Motor Company of Australia Limited

[2021] FWC 5372

[2021] FWC 5372

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Ford Motor Company of Australia Limited
(C2021/2484)

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)
v
Ford Motor Company of Australia Limited
(C2021/2583)

COMMISSIONER CIRKOVIC MELBOURNE, 31 AUGUST 2021

Application to deal with a dispute - s 739 - Ford Australia Enterprise Agreement 2019 (Vehicle Membership) and Ford Australia Enterprise Agreement 2019 (Skilled Trades) -Clause 6.1.2(d) changes in start and finishing times within span of hours – discussion and agreement obligations triggered.

[1] This decision involves an application brought by the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) (the first Applicant) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (the second Applicant) under section 739 of the Fair Work Act 2009 (Cth) (the Act). The Respondent in both matters is the Ford Motor Company of Australia Limited (Respondent).

[2] The first Applicant brings the dispute under the Ford Australia Enterprise Agreement 2019 (Vehicle Membership) (the Vehicle Membership Agreement). This Agreement was approved by the Fair Work Commission (the Commission) on 30 October 2019. It has a nominal expiry date of 31 July 2022. The Agreement applies to the Respondent and “Employees of the Company covered by the classifications of work in this Agreement and who are eligible to be members of the divisions or organisations that are set out in sub clause 1.5(c).” 1 The second Applicant brings the dispute under the Ford Australia Enterprise Agreement 2019 (Skilled Trades) (the Skilled Trades Agreement). This Agreement was approved by the Fair Work Commission (the Commission) on 11 October 2019. It has a nominal expiry date of 31 July 2022. The Agreement applies to the Respondent and “Employees of the Company covered by the classifications of work in this Agreement and who are eligible to be members of the divisions or organisations that are set out in sub clause 1.5(c).”2

Background

[3] At the request of the parties the matters were heard together. Following a conciliation conference held before me on 17 May 2021, which failed to resolve the dispute, the parties provided consent directions for the filing of submissions and witness statements, and the Commission subsequently listed the matter for arbitration. With the consent of the parties the matters were determined on the papers.

[4] The dispute relates to the alteration of start and finish times of employees engaged by the Respondent in the “Durability Area” of the” Ford Proving Ground” – a 24-hour operation located in the You Yangs, and the meaning of clause 6.1.2 in both the Vehicle Membership Agreement and the Skilled Trades Agreement (the Agreements). Relevantly, the Agreements are identical with respect to the clause that is the subject of dispute before me. The parties jointly submitted that the question for arbitration with respect to both matters is:

“(a) Question 1

Reading clause 6.1.2 Spread of Hours as a whole, which construction of clause 6.1.2(d) is correct?

(i) Applicants' Construction - Any change either/both to and/or from a commencing or finishing time within the span of the Triggering Hours triggers an obligation for the Respondent to hold discussions and reach majority agreement of relevant employees affected and shop stewards in accordance with clause 6.1.2(d).

(ii) Respondent's Construction - Only circumstances where a shift is changed such that the proposed shift will commence or finish within the span of the Triggering Hours, triggers an obligation for the Respondent to hold discussions and reach majority agreement of relevant employees affected and shop stewards in accordance with clause 6.1.2(d). In circumstances where a change to a proposed shift occurs outside of the Triggering Hours, such agreement is not necessary.

(b) Question 2

In light of the answer to Question 1, when implementing the change referred to in paragraph 11, was the Respondent required to first hold discussions and reach agreement with the majority of relevant employees affected and shop stewards?” 3

[5] The reference in question 2 above to paragraph 11, is a reference to the agreed statement of facts, filed by the parties and re-produced below and reads:

“In November 2020, the Respondent decided it wanted to revert back to the day shift commencing at 7.30am in the Durability Area. The Respondent gave effect to this change on 4 January 2021 and gave at least 28 days' notice before doing so.” 4

[6] I have reproduced below part of the Agreed Statement of Facts:

“Agreed background events

8. Historically, in the Durability Area the Respondent had a roster of three shifts at the Ford Proving Ground (day, afternoon, and night) which overlapped by 30 minutes to allow for handover. The day shift was rostered as 7.30am - 4pm. The Ford Proving Ground is a 24-hour operation located in the You Yangs.

9. In March 2020, in order to implement Ford's COVID-safe plan, the overlap in the shifts in the Durability Area was removed to allow for site cleaning and to ensure that teams would not crossover. Consequently, the day shift changed to commence at 6.30am until 2.15pm, with employees paid a full shift until 3pm.

10. Before implementing the change referred to in paragraph 9, the Respondent reached agreement with the majority of the employees affected and the shop steward.

11. In November 2020, the Respondent decided it wanted to revert back to the day shift commencing at 7.30am in the Durability Area. The Respondent gave effect to this change on 4 January 2021 and gave at least 28 days' notice before doing so.

12. Before implementing the change referred to in paragraph 11, the Respondent did not reach agreement with the majority of the employees affected and the shop steward.

13. The Applicants say that, when implementing the change referred to in paragraph 11, the Respondent was required to follow clause 6.1.2(d) of the Agreement, which provides: "Changes in commencing and finishing times between 6:00 am. and 7:00 am. and 5:30 pm. and 6:00 pm. will only be implemented following discussions and agreement with the majority of relevant employees affected and shop stewards." In substance, the Applicants say that clause 6.1.2(d) is triggered when proposing to change a commencing or finishing time either/both from and to a time between 6:00 am 7:00 am, and 5:30 pm and 6:00 pm ("Triggering Hours").

14. The Respondent says that, when implementing the change referred to in paragraph 11 clause 6.1.2(d) was not triggered. In substance, the Respondent says that only circumstances where a shift is changed such that the proposed shift will commence or finish within the span of the Triggering Hours, will the obligation be triggered to hold discussions and reach majority agreement of relevant employees affected and shop stewards in accordance with clause 6.1.2(d). Therefore, in circumstances where a change to a proposed shift time outside the Triggering Hours, such agreement is not necessary. When implementing the change referred to in paragraph 11, the Respondent says it did so in accordance with 6.1.2(b), which provides: "The spread of hours between 7:00 am. and 5:30 pm. may be altered for all or a section of employees by agreement between the Company and shop stewards in the work area, or in the absence of agreement, with seven /7) days notice by the Company to the employees concerned."

15. The parties agree that a change to a proposed shift where that shift's commencing or finishing time will be within the span of the Triggering Hours, triggers an obligation for the Respondent to hold discussions and reach majority agreement of relevant employees affected and shop stewards in accordance with clause 6.1.2(d).

16. The Parties disagree as to whether a change to a proposed shift from a commencing or finishing time within the span of the Triggering Hours and to a commencing or finishing time outside the span of the Triggering Hours, triggers an obligation for the Respondent to hold discussions and reach majority agreement of relevant employees affected and shop stewards in accordance with clause 6.1.2(d). The Applicants' say such a change does trigger clause 6.1.2(d); the Respondent says such a change does not trigger clause 6.1.2(d).”

Issues in dispute

[7] The background to the dispute is set out in the Agreed Statement of Facts which I do not need to repeat. Relevantly, in March 2020 following the COVID-19 outbreak the Respondent altered hours for day workers from a 7:30am start time to a 6:30am start time and from a finishing time of 4:00pm to 2:15pm with employees paid a full shift until 3:00pm. The Respondent’s decision in November 2020 to reinstate hours of work for employees, to pre-March 2020 hours, is at the crux of the dispute. In summary, the questions posed require me to interpret clause 6.1.2(d) of the Agreements and determine whether changes to working hours as described in paragraph 5 above, require discussion and agreement with the majority of relevant employees affected and shop stewards prior to their implementation.

[8] The Applicants submit that the Respondent’s decision in November 2020 to revert back to hours that were in place pre-March 2020, from a 6:30am commencing time to a 7:30am commencing time, invoke clause 6.1.2(d) of the Agreements with the consequence that discussion and agreement with the majority of relevant employees affected and shop stewards was required.

[9] The Respondent submits that it was not obligated to discuss and reach agreement with a majority of relevant employees affected and shop stewards. The crux of the Respondent’s submission is that clause 6.1.2(d) is only engaged in circumstances where a shift is changed such that the hours of work will commence or finish within the span of the “Triggering Hours” (that is those hours between 6:00am and 7:00am and 5:30pm and 6:30pm).

Jurisdiction

[10] Section 739 of the Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms. The Agreements contain such a term at clause 3.1.6. It is not in dispute that the steps taken by the parties to resolve the dispute constituted compliance with the dispute resolution provision of the Agreement. Having regard to the information in the Applicants’ Form F10 application and joint submission of the parties that “the Commission has jurisdiction to arbitrate this dispute pursuant to clause 3.1.6 of the Agreement and section 739 of the FW Act” 5, I am satisfied that the Commission has jurisdiction to deal with the dispute, including by arbitration.

Principles of Interpretation of Enterprise Agreements

[11] The principles applicable to the interpretation of enterprise agreements are well settled and were summarised by a Full Bench of the Commission in AMWU v Berri Pty Ltd (Berri), 6 drawing on the earlier Full Bench decision in AMIEU v Golden Cockerel Pty Ltd.7 The Full Court of the Federal Court in WorkPac Pty Ltd v Skene (Skene),8 has further distilled the principles. The starting point is the ordinary meaning of the words, read as a whole and in context.9 The language of the agreement is to be understood in the light of its industrial context and purpose, not in a vacuum or divorced from industrial realities. A purposive approach to interpretation is appropriate, not a narrow or pedantic approach. The task of interpreting an enterprise agreement does not involve re-writing the agreement to achieve what might be regarded as fair or just outcome.

[12] Both parties sought to rely on these principles to advance their case in their submissions. I adopt and apply the principles as cited above in this decision without restating them.

Relevant provisions of the Agreements

[13] The operative provision of the Agreements is clause 6.0, which is reproduced in part below:

“6.0 Hours of Work, Breaks, Overtime, Shift Work, Weekend Work

6.1 Hours of Work - Day Work

6.1.1 Regular Hours of Work

(a) The regular hours of work for all employees will be an average of 38 per week on the basis of 152 hours within a work cycle of four (4) weeks. This represents nineteen (19) eight (8) hour work days and one (1) programmed/rostered day off.

(b) Regular hours will be eight (8) hours per day from Monday to Friday.

6.1.2 Spread of Hours

(a) The regular hours of work will be worked continuously (exclusive of meal breaks) at the discretion of the Company between 6:00am and 6:00pm

(b) The spread of hours between 7:00am and 5:30pm may be altered for all or a section of employees by agreement between the Company and shop stewards in the work area, or in the absence of agreement, with seven (7) days notice by the Company to the employees concerned.

(c) On the request of an employee, the seven (7) day notice period may be extended in order for the Company to genuinely consider the effect the variation of the spread of hours may have on an individual employee and their family.

(d) Changes in commencing and finishing times between 6:00am and 7:00am and 5:30pm and 6:00pm will only be implemented following discussions and agreement with the majority of relevant employees affected and shop stewards.”

Evidence

[14] The Applicants rely on submissions filed on 12 July 2021 and 16 August 2021 and did not submit any witness statements. The Respondent relies on submissions dated 9 August 2021 and a witness statement of Mr David William Potter, People and Culture Manager, dated 9 August 2021.

[15] In his witness statement, Mr Potter makes reference to a decision of the Respondent said to take effect from 6 May 2019, where certain employees of the Respondent engaged to work on day shift changed their commencement time from 6:45am to 7:30am, and other employees changed their commencement time between 6:30am and 7:30am to a standard 7:30am start time. Mr Potter states that the employees concerned were covered by enterprise agreements that were in all relevant aspects the same terms as the “2019 skilled EA and the 2019 Vehicle EA.”

[16] Mr Potter further contends that in the case described above, “Ford did not reach agreement (nor did it seek to) with the majority of employees affected and/or the shop stewards in seeking to implement this change” and at the time “employees, shop stewards and/or union organisers did not raise any objections to the process undertaken by Ford, or otherwise sought to require that Ford reach agreement with them in relation to the shift times that were being implemented by Ford.” 10

[17] In essence, Mr Potter’s evidence is adduced to advance the Respondent’s submission that the May 2019 change referred to above, was implemented without agreement and the Applicants did not raise objection to the process undertaken by the Respondent. The Respondent submits that this demonstrates a meeting of minds, a consensus as to the proper application of clause 6.1.2 and is also evidence of objective background facts which were known to Ford and the Unions at the time the Skilled Trades EA and the Vehicle Membership EA were approved. 11

Submissions of the Parties

[18] For convenience, I have not set out the entirety of the submissions filed by the Applicants and Respondent. I have considered them in coming to my decision and have set out below the essence of each parties’ submissions. In essence, Applicants submit that:

•  “It is immaterial that the commencing time, in the agreed facts, was changed from 6:30am to 7:30am (i.e., from an original commencing time inside the Employee Hours to a new commencing time outside the Employee Hours)” as the “prepositions and concepts of “from” and “to” do not appear in clause 6.1.2(d) to limit the meaning of the word change.”

•  The Applicant points to the Macquarie Diction (sic) which defines “change” as a “variation; alteration; modification; deviation; transformation.”. As to the word “in” which appears after the word “changes”, the Applicant submits that “importantly, “in” appears before the noun phrase “commencing and finishing times”. “In” designates that the changes “happen to” or “occur to” the commencing time such that the commencing time changes, varies, alters, modifies, deviates, transforms etc.” As such, “when changes happen or occur to commencing or finishing times, the requirement to discuss and reach agreement in subclause (d) is triggered, provided that those commencing and finishing times that are subject to changes are “between 6:00am. and 7:00am and 5:30pm and 6:00pm.

•  In industrial settings, the spread of hours refers to the time of the day that ordinary hours can be worked. This idea is captured in subclause (a), which provides: “The regular hours of work will be worked continuously (exclusive of meal breaks) at the discretion of the Company between 6:00am and 6:00pm.” Subclause (a) sets out when the start and finish times of regular hours of work (or the roster) may be set: start no earlier than 6:00am, finish no later the 6:00pm.

•  When subclause 6.1.2(b) says that “the spread of hours between 7:00am and 5:30pm may be altered” it does not mean that the spread of hours itself can be extended further back than 7:00am and further forward than 5:30pm (which is nonsensical, as the spread of hours is 6am to 6pm in accordance with subclause (a)). Rather, subclause (b) says that hours of work performed (i.e., the roster) within that portion of the spread of hours (i.e., sitting between 7am and 5:30pm) may be altered with 7 days’ notice.

•  The regular hours of work performed on any day or shift must be a period of 8 hours (exclusive of meal breaks), on a Monday to Friday, in accordance with clause 6.1.1(b). Subclause 6.1.2(b) says that Ford may alter these hours (i.e., alter the roster or, what is practically speaking the same thing, alter the start and finish times) with 7 days’ notice, but only in so far as it alters the period of work within the spread between 7:00am and 5:30pm. This is a period of time totalling 10.5 hours, and can be represented as follows:

•  It is agreed that the roster was changed from a start of 6:30am and finish of 2:45/3:00pm to a new roster starting at 7:30am and finishing at 4pm. Consequently, when implementing the Roster Change, Ford altered the hours of work performed on the front-end of the shift by removing a 60-minute portion of time (which began at 6:30am and finished at 7:30am) within the spread of hours and adding an equivalent period of time to the back end of the shift. The Applicants say this was not permitted by clause 6.1.2(b).

•  The Applicants accept that subclause (b) permitted Ford to alter the 30-minute portion of the spread of hours between 7:00am and 7.30am with 7 days’ notice, but the Applicants contend that subclause (b) did not permit the alteration of the portion of the spread of hours lying between 6:30am and 7:00am. This 30-minute segment of time within the spread of hours lies beyond the temporal limit of the authority to alter hours vested in Ford by clause 6.1.2(b).

[19] The essence of the Respondent’s submission is that:

•  The construction of clause 6.1.2 advanced by the Applicants is not supported by a plain construction of the term, read in its context and in light of the industrial purpose to which it serves.

•  Read in its context, each of the sub-clauses of clause 6.1.2 apply a ‘tiered’ or ‘consequential’ approach to determining the spread of ordinary (or ‘regular’) hours of work. That is:

(a) clause 6.1.2(a) provides the ‘outer limit’ parameters for regular hours of work, being between 6:00am and 6:00pm. Ford retains discretion to roster hours of work during this 12 hour span;

(b) clause 6.1.2(b) and (c) provide the first qualification to the discretion bestowed upon Ford in clause 6.1.2(a). That is, Ford is entitled to alter the spread of hours between 7:00am and 5:30pm for all or a section of employees with agreement between Ford and shop stewards, or absent agreement, with the provision of seven days’ notice (with the ability to extend this notice period on request of an employee). This provides Ford with flexibility to arrange hours of work within this 10.5 hour span, including with agreement of shop stewards or unilaterally with notice; and

(c) clause 6.1.2(d) provides the second qualification to the discretion bestowed upon Ford in clause 6.1.2(a). That is, should Ford wish to roster employees’ commencing or finishing times between the two ‘extremes’ of the parameters set by clause 6.1.2(a) (being during the one hour window of 6:00am and 7:00am and the half hour window of 5:30pm and 6:00pm), Ford is only permitted to do so following discussions and agreement with the majority of relevant employees affected and shop stewards.

•  The Applicants’ contention hinges on the words of clause 6.1.2(d) being “changes in” rather than “changes to or from” (or some other equivalent terminology).

•  Such a construction of clause 6.1.2 is divorced from the industrial realties that exist with respect to the Agreements and adopts a narrow or pedantic approach rather than a purposive approach to interpreting the meaning of clause 6.1.2”.

•  Adopting a purposive approach, it is clear that a “sensible industrial outcome” to clause 6.1.2 is that clause 6.1.2(d) provides employees with a ‘protection’ against the Respondent unilaterally requiring employees to work at the ‘extreme’ ends of the span of hours set by clause 6.1.2(a).”

•  The Respondent’s interpretation is consistent with the accepted industrial practice in most enterprise agreements and modern awards that an employer must recognise and compensate work performed during ‘unsociable’ hours.

•  Within the Agreements themselves, the entitlement to overtime pay for work performed outside of the regular hours of work of 6:00am and 6:00pm, or the entitlement to shift premiums for shifts defined as afternoon, night and early morning, serve as recognition that work performed during ‘unsociable’ hours deserves special treatment. The same rationale applies to work performed between 6:00am and 7:00am or 5:30pm and 6:00pm: whilst no additional payments are available to employees who work these hours (as they fall within the ‘regular’ hours of work defined by clause 6.1.2(a)), the fact that they are on the ‘outer limits’ of this spread of hours recognises that these fall within a category of ‘unsociable’ hours (at least within the relevant industry and occupational standards) and therefore there ought to be a restriction on Ford’s ability to unilaterally roster an employee to work during them, To extend this ‘protection’ in the way contemplated by the Unions appears to serve no policy or other purpose.

•  The construction advanced by Ford provides meaning and scope for clause 6.1.2(b) to operate, as it clearly delineates the circumstances where clause 6.1.2(d) is triggered and when clause 6.1.2(b) is not triggered. This is because there are clear rules as to what Ford is and is not required to do depending on when it requires an employee to work:

(a) where Ford requires an employee to work within the hours of 6:00am an 7:00am or 5:30pm and 6:00pm, it is required to discuss and agree with the majority of affected employees and shop stewards to implement this change: whereas

(b) where Ford requires an employee to work within the hours of 7:00am and 5:30pm, whilst it may obtain agreement of employees and shop stewards to do so, it can simply achieve this by providing 7 days’ notice.

•  Conversely, to adopt the interpretation advanced by the Unions, is to lead to a potential conflict between clause 6.1.2(b) and 6.1.2(d). Namely, the material effect of the Second Roster Change is two-fold: to change the commencing time of the day shift from 6:30am to 7:30am, and to change the finishing time of the day shift from 2:15pm (or 3:00pm) to 4:00pm. On the Unions’ construction, this means that:

(a) Ford is making a change to a commencement time that is between 6:00am and 7:00am, and therefore must discuss and obtain agreement from the majority of employees and shop stewards to do so per clause 6.1.2(d); and

(b) Ford is also altering the spread of hours between 7:00am and 5:30pm (at least by changing the finishing time from 2:15pm or 3:00pm to 4:00pm), and therefore should obtain agreement of employees and shop stewards to do so but is otherwise entitled to do this by providing 7 days’ notice per clause 6.1.2(b).

•  The Unions’ contention, fails to grapple with this direct inconsistency and how such competing obligations may be reconciled with one another. This inconsistency does not arise on Ford’s construction of clause 6.1.2. That is, the Unions’ Submissions seem to suggest that the Second Roster Change requires Ford to both comply with clause 6.1.2(d) for the change of the commencing time of the day shift and clause 6.1.2(b) for the change of the finishing time of the day shift. Such approach is nonsensical, as it would theoretically enable Ford to unilaterally alter the finishing time of the shift (because the change is wholly within the hours set out by clause 6.1.2(b)) but be restrained in making the commensurate change to the commencing time of the shift. Of course, Ford is unable to do one without the other, given that regular hours of work are defined to be 8 hours per day from Monday to Friday.

•  The construction advanced by Ford is also consistent with clause 6.1.2(a). That is, by reading clause 6.1.2(d) using a purposive approach such that it relates to instances where Ford seeks to require an employee to work during the ‘extreme’ ends of the span of regular hours of 6:00am and 7:00am or 5:30pm and 6:00pm, this recognises that the starting position is that the regular hours of work for employees is “at the discretion of the Company between 6:00 am. and 6:00pm” (emphasis added). Although clause 6.1.2(d) provides a small caveat or qualification to that discretion, it should be read in light of Ford’s overarching discretion to roster working hours during this spread of regular hours, and not to unnecessarily intrude into such discretion beyond the intent and purpose that the qualification in clause 6.1.2(d) is to provide.

•  A Evidence of surrounding circumstances is admissible to aide the interpretation of the agreement. In particular:

(a) regard may be had to evidence of the surrounding circumstances tending to establish objective background facts which were known to both parties and inform the subject matter of the agreement; and

(b) in the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument if such post-agreement conduct shows that there has been a meeting of minds, a consensus.

•  This is not the first time that Ford has implemented a change to the roster practices of employees covered by the Skilled EA in the way that the Respondent contends to be the proper application of clause 6.1.2(d).

•  In 2019 the Respondent implemented a change not dissimilar to the one the subject of the current dispute and it did so without reaching agreement with a majority of employees affected by the change and shop stewards. In that case, employees, shop stewards and/or the Unions did not raise any objections to the process undertaken by the Respondent. It demonstrates a “meeting of minds, a consensus” for the proper application of clause 6.1.2 under the 2017 Skilled EA (which is identical in terms to clause 6.1.2 of the Agreements) and is also evidence of “objective background facts” which were known to Ford and the Unions at the time the Skilled EA was approved on 11 October 2019 and the Vehicle EA was approved on 30 October 2019.

Consideration

[20] I note there is no contest between the parties as to the principles to be applied in this matter. In accordance with the principles earlier stated, the construction of an Agreement begins with a consideration of the “ordinary meaning of the words, read as a whole and in context.” 12 Context may appear from the text of the Agreements viewed as a whole, or the place and arrangement of clause 6 in the Agreements. The statutory framework under which the Agreements were made and in which they operate may also provide context. The interpretative task also requires a consideration of the “language” of the particular agreements, understood in the light of their “industrial context and purpose”.13

[21] As previously stated, the dispute concerns the proper construction of the Agreements in light of the largely uncontested background facts. As stated above at paragraph 5, the Respondent’s decision, which took effect on 4 January 2021, to revert back to day shift hours commencing at 7:30am, is at the heart of the dispute. The Applicants submit that clause 6.1.2(d) is invoked by this change. The Respondent disagrees. The parties agree that the regular hours of work are between 6:00am and 6:00pm and that changes in hours between 6:00am and 7:00am and 5:30pm and 6:00pm (“the triggering hours”), will only be implemented following “discussions and agreement with the majority of relevant employees affected and shop stewards.” The contest between the parties arises with respect to whether a change either/both to and/or from a commencing or finishing time within the span of the Triggering Hours, engages clause 6.1.2(d).

[22] The Applicants state that any changes in hours whether a change either/both to and/or from a commencing or finishing time within the span of the Triggering Hours enlivens the obligation in clause 6.1.2(d). The Respondent posits a view that clause 6.1.2(d) is only enlivened when there are changes in hours that result in hours commencing or finishing within the span of the Triggering Hours.

[23] In accordance with the principles earlier stated, the construction of the Agreement begins with a consideration of the ordinary meaning of the relevant words.

[24] As stated above, the Agreements are identical with respect to Clause 6 which is titled “Hours of Work, Breaks, Overtime, Shift Work, Weekend Work”. Clause 6.1 is relevantly headed “hours of work – Day Work”. It is apparent from the heading that clause 6.1 regulates hours of work for all employees performing “Day Work” and sub clause 6.1.1(a) states that “regular hours of work for all employees will be an average of 38 per week on the basis of 152 hours within a work cycle of four (4) weeks”. Clause 6.1.2 is headed “Spread of Hours”. It is fairly uncontentious that it sets out the “regular hours” worked by day work employees, and the circumstances under which the Respondent’s obligations to consult and reach agreement as to changes to hours of work for day work employees covered by the Agreements are enlivened. Relevantly sub clause (a) states that the “regular hours of work” will be “at the discretion of the company” between 6:00am and 6:00pm. Sub clause (b) provides for the “spread of hours between 7:00am and 5:30pm to be altered by agreement between the company and shop stewards “or in the absence of agreement, with seven (7) days’ notice by the company to the employees concerned.”

[25] Sub clause (c) provides for the extension of the seven (7) day notice period to be extended on the request of an employee in certain circumstances.

[26] Relevantly, sub clause (d) states that “changes in” commencing and finishing times between 6:00am and 7:00am and 5:30pm and 6:00pm “will only” be implemented following “discussions and agreement” with the majority of relevant employees affected and shop stewards.

[27] In my view, having regard to the principles of construction referred to earlier, and identifying the objective meaning of clause 6.1.2(d) by construing the words of the Agreement, having regard to their industrial and textual context, the Applicants’ construction of clause 6.1.2(d) is correct. The answer to question 1 is that “any change either/both to and/or from a commencing or finishing time within the span of the Triggering Hours triggers an obligation for the Respondent to hold discussions and reach majority agreement with a majority of relevant employees affected and shop stewards in accordance with clause 6.1.2(d). I have answered the second question posed by the parties as follows: “In light of the answer to Question 1, when implementing the change referred to in paragraph 11, the Respondent was required to first hold discussions and reach agreement with the majority of relevant employees effected and shop stewards.” 14 I note for completeness that the Respondent gave “at least 28 days’ notice”15 before implementing the change the subject of the dispute. On the material before me, the reasons for that decision are not clear to me and I have given no regard to that fact in coming to my decision.

[28] In accordance with the principles of construction of enterprise agreements, I see no reason to depart from an ordinary plain reading of clause 6.1.2(d). I accept the Respondent’s submission that a narrow or pedantic approach to the interpretation of the words is to be avoided but, in my view, in this case, a re-writing of the Agreements would be required to adopt the Respondent’s interpretation. That said, I accept the Applicants’ submissions that the ordinary meaning of the word “change’’ means a “variation; alteration; modification; deviation; transformation.” 16 Read textually the words “changes in” commencing and finishing times between 6:00am and 7:00am and 5:30pm and 6:00pm, means a change to the status quo. In my view, there is nothing in clause 6.1.2(d) to limit the meaning of the words “changes in” in the way suggested by the Respondent. Rather, the words read plainly and textually are content neutral. There is no subject or condition imposed in the meaning of the words “changes in”.I agree with the Applicants that “the prepositions and concepts of “from” and “to” do not appear in clause 6.1.2(d) to limit the meaning of the word change”17and that clause 6.2.1(d) is triggered when changes happen or occur to commencing or finishing times, “provided that those commencing and finishing times that are subject to changes are between 6:00am and 7:00am and 5:30pm and 6:00pm.”18

[29] I agree with the Respondent that clause 6.1.2(a) sets the broad parameters of the Respondent’s discretion to set “regular hours” between 6:00am and 6:00pm. Clauses 6.1.2(b) and (d) seek to impose restrictions on the Respondent’s ability to unilaterally implement roster changes; in the case of sub clause (b) with seven (7) days’ notice, and, in the case of subclause (d), with the “agreement of the majority of employees”. The Respondent contends that each of the sub clauses of clause 6.1.2 apply a “tiered” or “consequential” approach to determining the spread of ordinary or “regular” hours, such that s 6.1.2(d) provides a “qualification” to the discretion in clause 6.1.2(a) which gives the Respondent discretion to set “regular hours” between 6:00am and 6:00pm.

[30] The Respondent posits the view that “adopting a purposive approach” 19 to the interpretive task, it is “clear that a sensible industrial outcome”20 is that clause 6.1.2(d) in essence, offers a protection to employees from unilateral changes to hours of work that commence or finish “during” the “triggering hours”. Further, the Respondent advances the argument that hours at the “extreme” end of clause 6.1.2 are essentially “unsociable” hours and that consistent with the industrial practice in most awards the employer must “recognise and compensate work performed during “unsociable” hours”.21 The Respondent also points to other clauses in the Agreement such as the requirement to pay overtime and shift penalties found in clauses 6.15 and 6.2.6 as further evidence of “protections” afforded to employees “as recognition that work performed during ‘unsociable’ hours deserves special treatment”.22

[31] The Respondent therefore contends that the Union’s interpretation “appears to serve no policy or other purpose” 23 and only offers employees protections contained in other clauses of the Agreements. To this end, the Respondent also refers to clauses 8.9(a) of the Skilled Trades Agreement and clause 8.8(a) of the Vehicle Membership Agreement which provide that “individual employees are able to make arrangements to their hours of work in order to meet their genuine needs”to argue that employees have an additional avenue to seek protection from working unsociable hours. I agree with the Applicants that the interpretation they (the Applicants) advance as to the meaning of 6.1.2(d) “does not detract from or replace the individual rights that workers have to make arrangements to their hours of work in order to meet their genuine needs.”24Conversely, the existence of the rights of workers to make arrangements to alter their hours of work in order to meet their genuine needs, does not in my view favour the interpretive analysis of clause 6.1.2(d) in the manner suggested by the Respondent.

[32] As stated above, I am of the view that the interpretative analysis favours the Applicants. I do not agree with the Respondent that the construction of the clause advanced by the Applicants is “narrow or pedantic” or “divorced from the industrial realities”. Rather, in my view, adopting the Respondent’s interpretation of clause 6.1.2(d) would require a re- writing of the clause to achieve the outcome favoured by the Respondent.

[33] The Respondent further submits that adopting the Applicants’ interpretation leads to a potential conflict between sub clauses (b) and (d) and that there is a direct inconsistency as to how the conflicting obligations are to be dealt with. The Respondent says that the Applicants’ approach is “non sensical” as it may lead to a hypothetical situation allowing for the employer to alter the finishing times without agreement, pursuant to clause 6.1.2(b) (with the provision of 7 days’ notice) while being unable to alter the commencement time without agreement, pursuant to clause 6.1.2(d).

[34] There is in my view no inherent inconsistency between clauses 6.1.2(b) and (d). The Respondent’s submission ignores the substance of the obligation imposed by sub clause (d) which requires agreement with employees and shops stewards, once that temporal requirement is satisfied, sub clause (b) is no longer relevant. I accept that under the terms of the Agreements particular rostering decisions may lead to shift premiums and varying degrees of consultative obligation outcomes, however it does not follow that clauses 6.1.2(b) and (d) do not work harmoniously or that compliance with clause 6.1.2(d) leaves no work for clause 6.1.2(b). I note that the Agreements contain extensive provisions as to various shift penalties or “premiums” for workers including for night shift, afternoon shift and shift workers generally and whilst the parties have not specifically referred me to these, it is apparent on the face of it that the Agreements contemplate a range of “protections” for employees working certain hours.

[35] As to the Respondent’s submission that the “common intention” of the parties is to be gleaned in part from the Applicants’ reaction to events in March 2019, I note that the only evidence before me is a witness statement of Mr Potter which I have referred to at paragraphs 15 to 17 above. As previously stated, the Respondent relies on the evidence of Mr Potter to assert that the unchallenged change to rostered hours in 2019 is evidence of a “meeting of minds, a consensus” 25. In all the circumstances, there is insufficient evidence to draw any meaningful conclusions as to the 2019 change to hours of work and its probative value in this matter and as such I have had little regard to the evidence in coming to my decision.

[36] Further, I do not regard Mr Potter’s evidence as establishing “objective background facts” which were known to both parties, as is advanced by the Respondent 26. The fact that “employees, shop stewards and/or the Unions did not raise any objections to the process undertaken by Ford, or otherwise sought to require that Ford reach agreement with them in relation to the 2019 Change, despite being actively engaged in the consultation process”27, does not in my view constitute “evidence of matters in common contemplation and constituting a common assumption”28 but rather is a subjective interpretation of what was understood or known at the time by the Respondents. As such I have afforded this evidence little weight in undertaking the relevant interpretive task.

[37] It follows that I am of the view that the November 2020 change implemented by the Respondent enlivens clause 6.1.2(d). I regard the Respondent’s characterisation effectively, as an attempt to re-write the clause to achieve an outcome that the Respondent believes is fair.

[38] For completeness, I note that that the Applicants and Respondent referred me to a number of authorities, in support of their respective submissions and that there is no real contest between the parties as to the principles to be applied in determining this matter. I have concluded my findings on the basis of the principles advanced in Skene and Berri.

Conclusion

[39] In my view, having regard to the principles of construction referred to earlier, and identifying the objective meaning of clause 6.1.2(d) by construing the words of the Agreement, having regard to their industrial and textual context, the answer to question 1 is that “any change either/both to and/or from a commencing or finishing time within the span of the Triggering Hours triggers an obligation for the Respondent to hold discussions and reach majority agreement of relevant employees affected and shop stewards in accordance with clause 6.1.2(d). The second question posed by the parties is answered as follows: In light of the answer to question 1, when implementing the change referred to in paragraph 11, the Respondent was required to first hold discussions and reach agreement with the majority of relevant employees effected and shop stewards.

COMMISSIONER

Final written submissions:

Applicants: 12 July and 16 August 2021

Respondent: 9 August 2021

Printed by authority of the Commonwealth Government Printer

<PR733327>

 1   Agreement, clause 1.5(b)

 2   Agreement, clause 1.5(b)

 3   Statement of agreed facts and Agreed question for arbitration, 25 June 2021, pages 3-4

 4   Statement of agreed facts and Agreed question for arbitration, 25 June 2021, [11]

 5   Statement of agreed facts and Agreed question for arbitration, 25 June 2021, [5]

 6   [2017] FWCFB 3005, [114].

 7   Australian Meat Industry Employees Union v Golden Cockerel Pty Ltd[2014] FWCFB 7447, [19] – [40].

 8 [2018] FCAFC 131, [197]

 9   Note: context is to be considered as part of the first stage: SZAL v Minister for Immigration and Border Protection [2017] 262 CLR 362, [14] per Kiefel CJ, Nettle and Gordon JJ

 10   Witness Statement of Mr David William Potter, 9 August 2021, [13]

 11   Respondent’s outline of submissions, 9 August 2021, [30]

 12   WorkPac Pty Ltd v Skene [2018] FCAFC 131, [197]

 13   WorkPac Pty Ltd v Skene [2018] FCAFC 131, [197], citing Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241, [2] (Gleeson CJ and McHugh J)

 14   Statement of agreed facts and Agreed question for arbitration, 25 June 2021, page 4

 15   Ibid [11]

 16   Applicants’ outline of submissions, 12 July 2021, [16]

 17   Ibid [15]

 18   Ibid [18]

 19   Respondent’s outline of submissions, 9 August 2021, [20]

 20   Ibid

 21   Ibid [22]

 22   Ibid

 23   Ibid [23]

 24   Applicants’ submissions in reply, 16 August 2021, [16]

 25   Respondent’s outline of submissions, 9 August 2021, [30]

 26   Ibid [28(a)]

 27   Ibid 29

 28   AMWU v Berri Pty Ltd (Berri) [2017] FWCFB 3005, [114]