Carl Ashley Parker v Swan Transit Services (South) Pty Limited
[2022] FWC 274
•10 FEBRUARY 2022
| [2022] FWC 274 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Carl Ashley Parker
v
Swan Transit Services (South) Pty Limited
(C2021/5470)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 10 FEBRUARY 2022 |
Dispute arising under an enterprise agreement – dispute determined
The issue
This decision concerns an application made by Mr Carl Ashley Parker under s 739 of the Fair Work Act 2009 (Cth) (Act) regarding a dispute with Swan Transit Services (South) Pty Ltd (Swan Transit) about the interpretation of subclause 7.18 of the Swan Transit Enterprise Agreement 2017 (the Agreement).[1]
Mr Parker is a permanent part-time bus driver of the Respondent working at the Joondalup depot in Western Australia. He works ‘spread shifts’ where there is an unpaid break between the end of one part of the shift and the start of the next part of the shift (spread break). Mr Parker is disgruntled because he and other permanent part-time drivers are being rostered for spread breaks of greater than five hours. Mr Parker feels that this rostering practice is contrary to subclause 7.18 of the Agreement, which he says applies to part-time employees.
Subclause 7.18 sets out that ‘[T]he break in a spread shift shall be between 91 minutes and 5 hours’. While Mr Parker holds the view that the clause applies to part-time employees, Swan Transit does not. It argues that subclause 7.18 applies only to its full-time drivers and not its part-time or casual bus drivers.
Mr Parker has come to the Commission seeking a ruling that:
a) subclause 7.18 of the Agreement applies to all bus drivers employed by Swan Transit, whether they are full-time, part-time, or casual employees; and, therefore,
b) the practice of Swan Transit of rostering part-time bus drivers for a spread shift which includes a break of more than five hours, is not permitted by the Agreement.
It is uncontroversial that: (a) there is a dispute between Mr Parker and Swan Transit; (b) the dispute has been properly notified to the Commission; and (c) the requirements of the dispute settlement procedure have been complied with.
While the parties were content to have the matter determined on the papers, and on 22 November 2021 I acquiesced to such request, I alerted the parties to a jurisdictional issue which both were required to address. Before turning to the interpretative issue, which is said to plague subclause 7.18, the jurisdictional issue requires attention.
Jurisdictional issue
I informed Mr Parker and Swan Transit that Mr Parker’s case is framed by reference to his first question, question (a), which asks whether subclause 7.18 applies to all bus drivers who are employed on a full-time, part-time or casual basis. However, when one considers question (b), it appears that in essence Mr Parker is contending that Swan Transit’s current rostering practice, as it pertains to him as a part-time driver, is contrary to a term of the Agreement and therefore that same term has been contravened.
I expressed my preliminary view to the parties, that even if the Commission could safely answer question (a) by arbitration (see paragraph [4(a)]), the fact that the underlying concern, and arguably the real dispute, may be one about an alleged contravention of the Agreement, it was incumbent upon this Commission to alert the parties to the jurisdictional issue.
2.1Mr Parker’s submissions on the jurisdictional issue
Mr Parker acknowledges that his dispute with Swan Transit is that its current rostering practice is contrary to the terms of the Agreement. Furthermore, he submits that the dispute could be pared further, to one that is about rostering.
Mr Parker submitted that in Kentz (Australia) Pty Ltd v CEPU (‘Kentz’),[2] the Full Bench of the Commission summarised the authorities which had considered the powers of the Commission when arbitrating a dispute between employees and an employer under the terms of a settlement procedure in an enterprise agreement. Reference was made to the following passages:
[70] Where, as in this case, the parties agreed to submit their differences for decision by a third party, the decision maker does not exercise judicial power, but a power of private arbitration.
[71] In exercising the power of private arbitration afforded to the Commission, the Commissioner had power to arbitrate an outcome to resolve the dispute over matters arising under the Kentz Agreement. In doing so she was authorised to form conclusions as to the legal rights and liabilities of the parties to the Kentz Agreement and give a decision expressing a conclusion as to the operation of the relevant terms of the Kentz Agreement, in order to discharge her role in the dispute resolution procedure to resolve disputes between the parties to the Kentz Agreement, in furtherance of the objective of the parties of avoiding the escalation and providing prompt resolution of disputes or grievances.
[72] Commissioner Bissett received submissions and evidence in relation to the issues in contention, considered them and made findings in relation to the matters of fact and interpretation in dispute, in order to discharge her responsibility in private arbitration to resolve the dispute. The Commissioner was authorised to make findings in the course of the private arbitration concerning the operation of the relevant provisions of the Kentz Agreement for the purpose of resolving the dispute. The Commissioner was not “declaring [an] opinion about the legal position and only doing that for its own sake”.
[73] The Commissioner’s conclusions were not a binding declaration of rights. The findings involved the formation of an opinion on a matter of interpretation required in discharging the arbitral function afforded to her by the parties for the purpose of resolving the dispute before her. The Commissioner did not seek to or purport to make a judicial determination. The dispute was clearly one in respect of a matter arising under the Kentz Agreement and, in our view, the Commissioner did not consider any matters outside the jurisdiction reposed in the Commission by the dispute settlement procedure in clause 18 of the Kentz Agreement.
[74] The decision of the Commissioner arising from the arbitration is not a conclusive or legally binding determination of the rights and obligations of the parties in the Kentz Agreement by way of a judicial determination reserved for a Chapter III Court. Having been made on the basis of a power of private arbitration afforded to her by the agreement of the parties, the Commissioner’s decision is not binding of its own force. Rather, its effect, depends on the law which operates with respect to it, having regard to the terms of the Kentz Agreement.[3]
Mr Parker characterised the dispute as one that was ultimately about rostering. He said that by subclause 25.1 of the Agreement, the parties to the Agreement, namely the employees, including himself and Swan Transit, had agreed that in resolving a dispute between them, the Commission could arbitrate the matter and express and make a determination that was binding on the parties.
It was Mr Parker’s view that when the Commission arbitrates the dispute, it exercises powers of private arbitration, which have been agreed to by the parties. Mr Parker pressed that any findings and conclusions drawn by the Commission when it is exercising those powers operate by reason of that Agreement, rather than being binding of their own force.
Mr Parker further noted that in exercising powers of private arbitration under an enterprise agreement, the Commission may need to form an opinion about the interpretation of provisions in an agreement. However, when it is doing so, the Commission is not making a judicial determination.
Based on the preceding submissions, Mr Parker argued the Commission could arrive at a conclusion in relation to the first ruling (see paragraph [4(a)]) and that in doing so, no issue arose that there had been the exercise of judicial power.
Regarding the second ruling sought, Mr Parker conceded he was asking the Commission to effectively make a ruling on whether the practice of Swan Transit rostering part-time bus drivers for spread shifts with a break of more than 5 hours, was in breach of the Agreement. Mr Parker concedes there could possibly be an argument that in answering that question the Commission may be exercising judicial powers.
Consequently, Mr Parker has sought to avoid that problem by seeking leave to amend his application by deleting his request for a ruling about whether the present rostering practice by Swan Transit contravenes the Agreement.
Mr Parker states that if the only matter for determination by the Commission in dealing with this dispute is whether or not subclause 7.18 applies to part-time employees, and further, if in doing so the Commission only expresses an opinion regarding the issue, then there is no issue of the Commission exercising judicial powers when arbitrating the issue.
2.2Swan Transit’s submissions on the jurisdictional issue
In its written submissions, Swan Transit submitted that the function of arbitral power in relation to an industrial dispute was to ascertain and declare, but not enforce, what, in the opinion of the arbitrator, ought to be the respective rights and liabilities of the parties in relation to each other.[4]
Swan Transit submitted that it was uncontroversial that clause 20 of the Agreement, namely the dispute resolution term, provided that the Commission may arbitrate a dispute arising under the Agreement. It further clarified that in exercising its power to arbitrate a matter, the Commission may exercise any power it has under Subdivision Part 5-1, Division 3, Subdivision B of the Act. In support of its proposition, Swan Transit referred to the High Court decision in Ranger Uranium Mines Pty Ltd; ex parte Federated Miscellaneous Workers’ Union of Australia it was held:
…the purpose of the Commission’s inquiry is to determine whether rights and obligations should be created. The purpose of a court’s inquiry and determination is to decide whether a pre-existing legal obligation has been breached, and if so, what penalty should attach to the breach. Thus, inquiry into and determination of matters in issue is a judicial function if its object is the ascertainment of legal rights and obligations.[5]
Swan Transit submitted that the questions posed would lead the Commission to make a decision which would result in the enforcement of an existing position under the Agreement and would amount to the Commission expressing a position as to breach of contract. It continued, that in its view the two issues presented were not so easily separated so as to allow the Commission to make a determination on one issue without the second issue being addressed simultaneously by that same decision.
Swan Transit argued that the Commission does not have jurisdiction to make a bare declaration of rights where a party approaches the Commission for a definitive statement in respect of the rights presently enjoyed.
In reference to Mr Parker’s request to amend his application by deleting his request for a ruling about whether the present rostering practice by Swan Transit contravenes the Agreement, Swan Transit stated that Mr Parker had now sought to change the scope of his claim. According to Swan Transit, the implication that now arose was whether Mr Parker had satisfied the preliminary steps of the dispute resolution clause in relation to the amended question.
Swan Transit pressed that the suggestion that the Commission has the capacity to separate the making of a determination from the exercising of a judicial power in order to provide the parties with a decision, does not appear to be possible. In its view, Mr Parker was asking the Commission to couch the exercise of judicial power as a determination under a purported arbitral process.
Swan Transit submitted that while it and Mr Parker agreed to the Commission arbitrating the dispute as provided by the terms of the Agreement, that fact alone did not deem that the Commission is capable of determining the dispute without exercising judicial power. However, Swan Transit confirmed that the Commission was capable of expressing an opinion on the issues.
2.3Consideration of the jurisdictional issue
Section 172 of the Act authorises the making of enterprise agreements between national system employees and their employer(s).
The general requirements for approval of an enterprise agreement in s 186 of the Act include, at s 186(6), that the agreement contain a procedure requiring or allowing the Commission, or another independent person, to settle disputes about any matters arising under the agreement and in relation to the National Employment Standards. Those who will be covered by an enterprise agreement may of course agree to a term for the settlement of disputes of broader compass, provided it relates to the permitted matters in s 172 of the Act.
The Commission has a function set out in s 576(2)(a) of the Act to deal with disputes as referred to in s 595. Section 595 of the Act provides a power to the Commission to deal with a dispute if ‘expressly authorised to do so under or in accordance with another provision’ of the Act. In such a circumstance, s 595 provides that:
(2) The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:
(a) by mediation or conciliation;
(b) by making a recommendation or expressing an opinion.
(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.
Section 595 of the Act authorises the Commission to exercise any powers it has under Subdivision B of Division 3 of Part 5–1 of the Act in dealing with a dispute.
Subdivision B of Division 2 of Part 6–2 of the Act is ‘another provision of the Act’ which expressly authorises the Commission to deal with disputes.
Section 739 of the Act concerns disputes dealt with by the Commission. Section 739 applies if a term referred to in s 738 requires or allows the Commission to deal with a dispute. Section 738(b) of the Act includes a term in an enterprise agreement that provides a procedure for dealing with disputes, including a term referred to in s 186(6).
In dealing with a dispute, the Commission must not exercise any powers limited by the term (which requires or allows the Commission to deal with the dispute (s 739(3)). The Commission may deal with a dispute only on application by a party to the dispute (s 739(6)). If, in accordance with the term, the parties have agreed that the Commission may arbitrate the dispute, the Commission may do so (s 739(4)) but must not make a decision that is inconsistent with the Act or a Fair Work instrument that applies to the parties (s 739(5)).
The dispute settlement procedure insofar as it concerns the Commission’s role in the resolution of a dispute, provides at subclauses 20.4 and 20.5:
20.4 If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to the Fair Work Commission.
20.5 The Fair Work Commission may deal with the dispute in 2 stages:
(a) The Fair Work Commission will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
(b) If the Fair Work Commission is unable to resolve the dispute at the first stage, the Fair Work Commission may then:
1) Arbitrate the dispute; and
2) Make a determination that is binding on the parties.
Note: If Fair Work Commission arbitrates the dispute, it may also use the powers that are available to it under the Act. A decision that Fair Work Commission makes when arbitrating a dispute is a decision for the purpose of Div.3 of Part 5.1 of the Act. Therefore, an appeal may be made against the decision.
The High Court in Re Cram; ex parte Newcastle Wallsend Coal Co Pty Ltd,[6] expressed that the power of judicial determination includes ‘the giving of decision in the nature of adjudications upon disputes as to rights or obligations arising from the operation of the law upon past events or conduct’.[7] It continued:
[T]he making of a binding declaration of right is an instance of the exercise of judicial power. It stands outside the arbitral function. But there is no substance in the suggestion that an industrial tribunal cannot interpret laws, awards and other legal instruments. A tribunal could not discharge its arbitral functions if it were unable to form an opinion on a matter of interpretation. The formation of views and opinions on matters of interpretation in arbitral proceedings does not in itself amount to a usurpation of judicial power.[8]
The Agreement, through its dispute procedure set out above, vests a power of dispute resolution in the Commission by way of private arbitration. The powers of the Commission with respect to private arbitration have been the subject of several decisions. In Maritime Union of Australia and Australian Plant Services,[9] the powers of the Commission under s170LW of the Workplace Relations Act 1996 were discussed by Lacy SDP. His discussion was in the context of the High Court judgment in Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission (and Ors),[10] (known as ‘the Private Arbitration Case’). Lacy SDP stated:
[56] Section 170LW is essentially a replication of s 170MH of the Industrial Relations Act 1988 (IR Act) as inserted by the Industrial Relations Act Reform Act 1993. It authorises the Commission to `settle disputes over the application of [an] agreement'. [Private Arbitration Case, par. 22] And, like its IR Act predecessor, it authorises the Commission, under agreed dispute resolution provisions that have been incorporated into a certified agreement, to exercise a power of private arbitration and make decisions as to the legal rights and liabilities of the parties to the agreement. [Private Arbitration Case, par.32] There is an important distinction between a power of private arbitration to make decisions as to the legal rights and liabilities of parties to an agreement and judicial power to determine rights and liabilities. In making decisions as to the legal rights and liabilities of the parties, where parties agree to submit their differences for decision by a third party, the decision maker does not exercise judicial power, but a power of private arbitration. The High Court emphasised this distinction in the Private Arbitration Case in the following way:
`Where parties agree to submit their differences for decision by a third party, the decision maker does not exercise judicial power, but a power of private arbitration. Of its nature, judicial power is a power that is exercised independently of the consent of the person against whom the proceedings are brought and results in a judgment or order that is binding of its own force. In the case of private arbitration, however, the arbitrator's powers depend on the agreement of the parties, usually embodied in a contract, and the arbitrator's award is not binding of its own force. Rather, its effect, if any, depends on the law which operates with respect to it.' [Private Arbitration Case, par 31]
[57] An important limitation on the Commission's powers under s 170LW is the kind of disputes that may be subject to resolution by the Commission. Parliament has authorised the Commission to exercise powers under an agreement `to settle disputes over the application of the agreement' and, accordingly, its powers are limited to disputes of that kind. Therefore it is necessary for the Commission, in each case where it is asked to deal with a matter arising under the dispute settling procedure in an agreement, to ascertain the character of the dispute that is before it in order determine whether the matter is a dispute over the application of the agreement. [Qantas Airways Limited v Australian Municipal, Administrative, Clerical and Services Union, Print T0301, par.24] And, importantly, the character of the dispute is distinguishable from the orders that may be made in settlement of the dispute. [ibid, par 25, see also the Private Arbitration Case at par 36.]
[58] In exercising its powers under s 170LW as authorised by an agreement, the Commission is performing a function that is conferred on it by the Act. As such it falls within the functions identified in s 89(b) of the Act and described as `such other functions as are conferred on the Commission by this or any other Act'. This is in contrast to the functions of the Commission under s 89(a)(i) and (ii), namely `to prevent and settle industrial disputes ... by conciliation and ... arbitration.' The procedures encompassed by s 170LW, in conjunction with appropriate relevant grievance procedures, are designed to ensure that the agreement made in settlement of the dispute is effective and enduring [see R v Hegarty; Ex parte City of Salisbury (1981) 147 CLR 617, 629; and the Private Arbitration Case, at par 32].
The opinion of Lacy SDP remains apposite in respect of the approach reflected in other decisions of the Commission.[11]
In Kentz, a Full Bench decision referred to by Mr Parker, the question that had been put to the Commission was whether ‘it is permissible for a period of notice to run concurrently with a period of R&R provided for in the Agreement’.[12] In that decision, two jurisdictional issues arose. The first, whether the Commission had jurisdiction to deal with the application because the employees to whom the dispute related no longer work for Kentz, having been given notice of termination. The second, whether the Commission had jurisdiction to deal with the application in circumstances where there were no future rights and obligations to be determined because the enterprise agreement appeared, on a practical level, to have no work to do in light of the conclusion of a construction project. The jurisdictional issues clearly differed to the one before me now.
However, in Kentz the dispute was characterised as a question of whether it was permissible for a period of notice to run concurrently with a period of R&R provided for in the enterprise agreement. Question 2.1 in the Form F10, asked Mr Parker what the dispute was about and in response Mr Parker set out the following:
1) Mr Carl Parker, a member of the TWU, who is employed by Swan Transit as a permanent part-time Bus Driver, on the Joondalup contract, is in dispute with the company about the interpretation of clause 7.18 of the Agreement.
2) Clause 7.18 of the Agreement deals with spread shifts, and provides that: ‘7.18 The break in a spread shift shall be between 91 minutes and 5 hours’.
3) Notwithstanding that cl.7.18 provides that the maximum duration of a spread shift break cannot be no more than 5 hours, Swan Transit is rostering part-time Bus Drivers for spread shifts where the spread break is more than 5 hours.
4) Swan Transit has advised the Applicant that it does not consider that clause 7.18 of the Agreement applies to part-time, or casual Bus Drivers.
5) The Applicant’s position is that:
(a)Nothing in clause 7, or any other provision in the Agreement, explicitly or implicitly provides that clause 7.18 only has application to full-time Bus Drivers.
(b)Clause 7.18 of the Agreement applies to all Bus Drivers who are covered by the Agreement, whether they are full-time, part-time, or casual employees; and
(c)Having regard for the matters set out in sub-paragraphs (a) and (b) above, the Applicant considers that by rostering part-time (or casual) Bus Drivers for spread shifts which have a break that is more than 5 hours, Swan Transit is breaching cl.7.18 of the Agreement.
6) The Applicant has raised a dispute with Swan Transit (on behalf of himself, and also on behalf other part-time drivers) that the practice by the company of rostering part time and casual Bus Drivers for spread shifts which are greater than 5 hours is a breach of the Agreement. This has included by way of correspondence and also meetings with the relevant managers.
It is accepted that in characterising the nature of a dispute the Commission is not confined to the dispute notification document.[13] It is necessary to have regard to the nature of a dispute alleged in an originating application and the factual circumstances as they evolve for the purposes of conciliation and arbitration of the dispute.[14] However, although Mr Parker’s case is framed by reference to the interpretation of subclause 7.18, that is whether subclause 7.18 applies to the rostering of part-time and casual drivers, it appears to me that in essence Mr Parker contends that Swan Transit has and is contravening the terms of the Agreement. That is a question that only a court can determine.
Even if the Commission can safely answer the question set out at paragraph [4(a)] by arbitration, the fact that the underlying concern, and arguably the real dispute, appears to be one about an alleged contravention of the Agreement, is a consideration that favours the Commission simply expressing an opinion, because it avoids any question of the impermissible purported exercise of judicial power.
While Swan Transit has questioned whether there has been compliance with preliminary steps of the dispute resolution clause given Mr Parker’s proposed amendment to the questions asked, I do not consider that such amendment fundamentally changes that which is in dispute between the parties. The crucial question in the proceedings ultimately rests on whether subclause 7.18 operates or applies in respect of part-time and casual bus drivers. This interpretative issue has been known to both parties since the notification of the dispute under clause 20. I note that Swan Transit advanced its submission on this point no further.
In my view, the appropriate course is to deal with the dispute by expressing an opinion about the answers to the questions posed. Such a course is consistent with my obligation to perform my functions and exercise powers in a manner that is fair and just, and also quick (s 577).
Before proceeding to consider the two questions asked, the broader context and events leading to the dispute require attention.
Operational context
Swan Transit has been providing public transport bus services in metropolitan Perth since 1996. In late 2019, Swan Transit successfully tendered to the Public Transport Authority (PTA) of Western Australia to operate the Joondalup bus service contract operating Transperth bus services. Swan Transit commenced the operation of this bus service on or about 19 January 2020.
Mr Parker was an employee of the previous operator of the Transperth bus services. Pursuant to the obligations of Swan Transit under the tender to the PTA, it offered to employ Mr Parker under the terms and conditions of Swan Transit’s ‘Driver agreement’. Evidently, Mr Parker accepted Swan Transit’s offer and commenced employment with the Respondent business on 19 January 2020. Mr Parker’s terms and conditions of employment are set out in the Agreement.
Swan Transit employs approximately 1,100 bus drivers across its six Perth bus service contracts. At least 80% of the shifts operated by Swan Transit in each of its contracts are operated by bus drivers who are full-time employees. Swan Transit is said to operate a higher ratio of full-time shifts employing more full-time bus drivers than other Perth operators in the Transperth network. Swan Transit purports that Mr Parker is one of a small number of drivers, believed to be less than six drivers, for whom the spread shift is an issue. Mr Parker reports that more than six bus drivers are affected – but nonetheless the point is irrelevant to the disputed issues.
Prior to the contract being awarded to Swan Transit, the previous operator was said to have experienced a period of sustained industrial action in 2018 and 2019 when bus drivers took industrial action against the previous operator, in part, due to increasing numbers of part-time and casual bus drivers being employed in preference to employing full time drivers.
Due to the make-up of shifts, the previous operators’ part-time drivers generally worked only one of the daily peak public transport demand periods, either the ‘AM’ or the ‘PM’ peak with a short break. The majority of the previous operator’s part-time bus drivers generally did not work both peaks.[15]
According to Swan Transit, although straight shifts with smaller breaks were generally favoured by bus drivers, most of the previous operator’s bus drivers wanted full-time employment and the industrial action against the previous operator in 2018 and 2019 was largely motivated by bus drivers wanting a greater proportion of full-time driver employment. Swan Transit explained that this was why it had structured its operations to maximise the driving hours in shifts and provide full-time employment opportunities for its bus drivers.
Swan Transit said it was able to offer 57 additional full time employment positions to bus drivers within the Joondalup contract who were employed as part time previously within the same contract.
Mr Parker did not apply for a full-time position with the Swan Transit.
The Agreement
It is uncontroversial that the Agreement covers both Swan Transit and employees who primarily drive buses.
The ‘Hours of Employment’ are set out at clause 7 of the Agreement.
Subclause 7.1 lays downs that the ordinary hours of work for a full-time employee shall not exceed 38 hours per week, excluding meal breaks, and will be rostered over Monday to Friday. That same subclause provides that work on Saturdays, Sundays and Public Holidays shall be rostered overtime.
Following subclause 7.1, the remainder of the ‘Hours of Employment’ clause reads:
Daily Shifts
7.2 The minimum hours of work on a Weekday for a full time Employee shall be 7 hours 36
minutes and on a Saturday, Sunday or Public Holiday shall be four hours. Shifts shall be constructed in adherence with the National Driving Hour Regulations.7.3 There shall be a break of 10 hours from the completion of one day’s duty and the
commencement of the next day’s duty.7.4 The minimum length of any shift part shall be 2 hours.
7.5 The maximum driving hours on a shift shall be 10 hours.
7.6 Spread shifts will commence no earlier than 0545 and finish no later than 1945. Shenton Park depot or North Fremantle depot, spread shifts will commence no earlier than 0600 and finish no later than 1930.
7.7 A spread shift shall not exceed 12 hrs 25 minutes inclusive of the sign on and sign off
provisions of 7.9.7.8 Spread shifts shall not be rostered on Saturdays, Sundays or Public Holidays.
7.9 Rosters shall include the following provisions for the tasks listed below:
(a) Ten minutes to sign on at the commencement of a shift where required to carry out
pre-start safety checks and taking bus from depot.
(b) Five minutes to sign on at the commencement of a shift and picking up a bus on the
road.
(c) Five minutes to ready a bus at any location after an unpaid meal break.
(d) Two minutes to sign off the first portion of a two portion shift at the depot.
(e) Five minutes to fuel a bus.
(f) Five minutes to sweep a bus and empty rubbish.
(g) Five minutes to pay in revenue.
7.10 The Employer shall develop with each depot Health and Safety Representatives an agreed list of ‘acceptable toilet breaks’ for each route operated by that depot. If agreement is
reached, the Employer shall modify shifts and/or timetables to provide an acceptable toilet
break in each three-hour portion of driving on each shift. A shift that is so modified may be
constructed with a 5 hour and 5 minute period of work with no meal or rest break. The parties
to this agreement acknowledge that modifications may require the approval of third parties
and that this may limit both the time frame and the extent to which this clause can beimplemented.
7.11 Where a driver is requested to cover a weekday shift at another depot not considered to be part of their normal duties, a travel allowance will be paid where an increase of 15km or more one way occurs between home and work. This payment must be approved in advance by the Operations Manager or his delegate and will be paid up to a maximum of one hour per shift at normal time. To avoid doubt, coverage of a shift at a satellite or sub-depot in the Midland contract will be considered part of a driver’s normal duties, but will be on a voluntary basis.
Meal, Rest and Crib Breaks
7.12 Employees may be required to undertake up to 5 hours total duty on any one portion of duty before requiring a Meal Break or Crib Break. This time includes “shift provisions” as per
Clause 7.9.7.13 The company may elect to increase shift parts beyond 5 hours but not greater than 5 hours 30 minutes duty on any one portion of duty before being eligible for a meal break or crib break providing such portion of duty includes a rest break. This time includes “shift” provisions as per Clause 7.9.
7.14 A Rest Break shall be paid and be a minimum 12 minutes in duration, will not be in the first 60 minutes of the shift portion and be rostered where a toilet is available.
7.15 Meal breaks shall be between 30 minutes and 90 minutes and shall be unpaid;
7.16 The maximum meal break on a straight shift shall be 90 minutes.
7.17 The maximum length of a meal break that is rostered at a location other than the depot at
which the Employee is based shall be 75 minutes.7.18 The break in a spread shift shall be between 91 minutes and 5 hours.
7.19 Spread shifts with a break greater than 4 hours shall be limited to 20% of the total spread
shifts rostered.7.20 Where a Meal Break of at least 30 minutes is not provided, a paid Crib Break shall be taken in the Company’s time. The time allowed for a Crib Break shall be not less than 20 and not more than 29 minutes.
7.21 Meal breaks and Crib breaks shall be rostered at locations where toilet and refreshment
facilities are available, and where the Employee’s meal break can be held away from the
vehicle.7.22 Only one unpaid meal break shall be rostered per shift.
7.23 From time to time the Employer may be required to operate a large number of services to a planned special event. These planned special events will be determined by the company’s
contract with the PTA and will be offered to drivers on a voluntary basis. On these occasions,
the Employer may construct shifts:(a) That are no less than 3 hours;
(b) Not more than 12 hours of driving time;
(c) Vary break times;
(d) Will not exceed the maximum hours as defined in the Heavy Vehicle Driver Fatigue laws or Code of Practice as applicable and in force in Western Australia at that time.
Weekly Rosters
7.24 The average rostered weekday working week over the period for each individual depot
rotating roster for any Employee who was full time before 1 June 2016 shall be a minimum of
40 hours. A full time Employee may request to reduce their work hours to be an average of
less than 40 hours Monday to Friday and when this occurs, the Employee will not be covered
by this clause in the future.7.25 The rostered weekday working week shall be 5 days rostered Monday to Friday with Saturday and Sundays being rostered overtime.
7.26 The Employer will give priority to allocate Saturday and Sunday shifts such that these shifts fall during a week when the Employee’s roster is less than the average weekly roster.
7.27 An Employee shall not work on both a Saturday and a Sunday in the same pay week except where exceptional circumstances exist and by agreement with the Employer.
7.28 Full time Employees shall have preference over permanent part time and casual Employees in the allocation of weekend overtime that has not been rostered. Where a full time Employee has not accepted such weekend overtime by close of business on the Monday prior to the rostered day for this overtime, this work shall be made available to part time and casual
Employees on an equal basis.7.29 Rosters shall be posted 7 days before commencement. Rosters shall show the Employee’s
starting and finishing times for all working days in the roster. Any change to a roster with less
than 24 hours notice shall only be with the consent of the Employees affected by the change.
Where external circumstances delay the posting of a roster an explanation for the delay shall
be posted.7.30 An Employee shall be rostered for the same shift from Monday to Friday except where a
school holiday period commences mid-week, a school early finish, or a Public Holiday occurs.7.31 An alternative shift may be rostered under exceptional circumstances, but only with the
Employee’s consent, and if this occurs the Employee shall be credited with the hours of the
longer of the two shifts.7.32 Exchange of work:
(a) An Employee may exchange work with other Employees for their personal
convenience, provided such change is with the consent of the Employer.
(b) Where a request is made before 5:00pm on the Friday 10 days before the roster
commences a response shall be provided by 5:00pm on the Wednesday following the
request.
(c) Rostered hours shall be calculated on the basis of the work performed.
(d) The Employee who accepts the shift so exchanged shall be responsible forcompleting that shift.
Clause 8 of the Agreement is titled ‘Part-Time Employment’. Subclause 8.2 sets out that a part-time employee is one who is required or has requested to work less than 38 ordinary hours per week Monday to Friday.
Clause 8 continues in the following terms:
8.2 Before commencing part-time employment, the Employee and the Employer must agree
upon:(a) The total hours to be worked by the Employee and the regular days upon which they will be worked; and
(b) The classification applying to the work to be performed;
8.3 The nominal hours agreed in Clause 8.2 (a) above shall be used for the calculation of paid
leave entitlements.8.4 Agreed hours and days worked may be changed by agreement to suit requirements of the
depot.8.5 Additional unrostered hours to those specified in clause 8.2(a) may be worked by agreement and will be paid at rates specified in line 9 of Appendix 1.
8.6 A part-time Employee shall be paid the equivalent ordinary hourly rate as for full time
Employees for the agreed hours as specified in clause 8.2(a) worked up to 38 hours. Further,
a part-time Employee shall receive a minimum payment of four hours for each day engaged.8.7 Overtime rates as specified in line 3 of appendix 1 are to be paid after completing 38 hours in any one pay week rostered Monday to Friday.
8.8 All work performed on weekends or public holidays shall stand alone and be paid at overtime rates as specified in clause 10.
8.9 The terms of this Agreement shall apply pro rata to part-time Employees on the number of
ordinary weekly hours rostered in accordance with 8.2(a) on the basis that ordinary weeklyhours for full-time Employees are 38.
Whilst Mr Parker does not purport to be employed on a casual basis, he nevertheless asserts that subclause 7.18 operates in respect of casual employees. Clause 9 of the Agreement, titled ‘Casual Employment’ reads:
9.1 A casual Employee is defined for the purposes of this Agreement as an Employee who:
(a) Is engaged as a casual and is paid on an hourly basis;
(b) Whose hours and duration of engagement are uncertain;
(c) Whose employment ceases at the completion of each separate engagement; and
(d) Who receives an all-inclusive payment and is not entitled to receive annual, paid
personal/carer, and compassionate leave.
9.2 The casual Employee hourly rate includes a loading of 20% paid for hours worked at ordinary time on weekdays only in lieu of paid personal/carer's leave, paid annual leave and paid public holidays.
9.3 Pay rates for casual Employees on Saturdays, Sundays and Public Holidays shall be the
overtime rate applicable to a full time Employee of the same classification in accordance with
Appendix 1 and the overtime rate is in lieu of the casual loading, not in addition.9.4 Pay rates for hours in excess of 7 hours 36 minutes per day Monday to Friday shall be the
rate applicable to a full time Employee of the same classification, in accordance with
Appendix 1 and the overtime rate is in lieu of the casual loading not in addition.
9.5 A casual Employee will be engaged to work on an ’as required’ basis. The Employer will
contact the Employee to offer specific periods of casual employment if and when the
Employer requires. In the situation of casual employment, there is no guarantee that
employment will be offered, or that an Employee will be offered employment at any particular
times.9.6 A casual Employee is not obliged to accept any offer of employment that is made to them.
9.7 Although employment is of a casual nature, the Employer will regularly conduct appraisals of an Employee's work performance. Further offers of casual employment will be subject to satisfactory performance appraisals.
9.8 The Employer will endeavour to offer a casual Employee advance notice of the work offered. However, the Employer may also offer work at short notice in order to cover sickness or other operational requirements.
9.9 A casual Employee shall be entitled to long service leave as prescribed in the Western
Australian Long Service Act 1958 as amended from time to time. Such long service leaveshall be calculated on a pro rata basis on the normal hours worked.
Consideration of the interpretative issue
The principles applicable to the interpretation of enterprise agreements are well settled and summarised by the Full Court of the Federal Court in WorkPac Pty Ltd v Skene (‘Skene’).[16]
Those principles include that the ordinary meaning of the words are read as a whole and in context.[17] Further, the language of the agreement is to be understood in light of its industrial context and purpose, and not in a vacuum or divorced from industrial realities.[18] A purposive approach to interpretation is appropriate, not a narrow or pedantic approach, because as observed in Skene, industrial agreements are made for various industries in the light of the customs and working conditions of each, and are frequently couched in terms intelligible to the parties but without careful attention to form and draftsmanship that one expects to find in an Act of Parliament. In Skene, it was noted that the framers of agreements were likely of a ‘practical bent of mind’ and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon.
The principles that apply to the interpretation of enterprise agreements have also been summarised by the Full Bench of the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited (‘Berri’).[19] In the absence of having been disturbed, those principles remain apposite and for the most part do not warrant repeating at this point. Except to say, that the starting point for interpreting an agreement is to ascertain whether it has a plain meaning or contains an ambiguity. To determine the existence of an ambiguity, reference may be made to the evidence of surrounding circumstances.
Swan Transit conceded at paragraph [35] of its Outline of Submissions, that subclause 7.18 does not specifically address the category of work to which it applies. However, it sought to rely upon the prior conduct of the parties and also on the clause that allowed non-full-time drivers to work both ‘peaks’ to show that ‘there can be no dispute that subclause 7.18 is applicable to full-time drivers only’.
Swan Transit submitted that bus drivers were required to work during times when the maximum number of buses were on the road and work was therefore required. It said that restricting non-full-time bus drivers to the extent that they are unable to work both peaks would result in an increase in the requirement for the number of drivers employed, reduce the average work hours for all drivers, increase the number of split shifts for full-time drivers and reduce the number of full-time drivers. This, said Swan Transit, was inconsistent with the long-term approach to maximising driver hours and the earning capacity of bus drivers.
Regarding the content of the Agreement, Swan Transit observed that the Agreement specifically catered for part-time and casual employees. These provisions had been progressively added to the Agreement to clarify its application in the ‘2008 renewal’. Swan Transit clarified that the rights and entitlements in clause 7 applied to full-time bus drivers, and clauses 8 and 9 were added to cater for part-time and casual drivers respectively.
According to Swan Transit, the custom and practice in respect of rostering part-time drivers had been long-standing and had applied since 2002. Swan Transit submitted that there had never been agitation by the employees or the Transport Workers’ Union of Australia, Western Australian Branch (TWU) that subclause 7.18 should apply to part-time or casual drivers. Swan Transit referred to examples of other subclauses that had no application to casual or part-time employees, which included subclauses 7.19, 7.24, 7.25 and 7.30.
Swan Transit pressed that it had scheduled part-time and casual drivers split shifts routinely with breaks greater than five hours, to maximise hours for all drivers and to ensure full-time drivers achieved the better conditions, that is, a reduced number of full-time split shifts and the highest numbers of straight shifts.
It was Swan Transit’s view that during the bargaining process for the Agreement, the issue of reducing the duration of the split break for part-time and casual employees was raised, but no specific clause was proposed nor inserted into the Agreement.
Swan Transit highlighted that the bargaining process for the Agreement had resulted in the inclusion of subclause 7.10, which addressed spread shifts with a break greater than four hours being limited to 20% of the total spread shifts rostered for full-time drivers. Furthermore, it argued that the various iterations of the Agreement from 2005 had elucidated the position for full-time bus driver split shift breaks only.[20]
As to the submissions of Mr Parker, Swan Transit pointed out that Mr Parker had not provided any submissions to support his interpretation of subclause 7.18.
Swan Transit’s observation was not entirely misplaced in this respect. In his witness statement Mr Parker simply asserted that he had discussed with Mr Bydder, an Organiser employed by the TWU, his roster, which included spread breaks of greater than five hours and the effect of subclause 7.18. According to Mr Parker, Mr Bydder agreed that by reason of subclause 7.18, Swan Transit was not able to roster any bus driver for a spread break of more than five hours.
However, in his submissions in reply, Mr Parker made comment that clause 8 of the Agreement dealt with only a limited number of matters specifically relating to part-time employment. Mr Parker continued that if Swan Transit argued that clause 7 did not have any application to part-time drivers, then it would follow that subclauses 7.5, 7.8, 7.9, 7.15 to 7.17 and subclauses 7.20 to 7.22 and 7.24 to 7.31 would not apply. And, as the Agreement excluded the Award, it would follow those part-time drivers would not have any rights regarding these matters. According to Mr Parker, it would be highly unlikely that this was the intent of the parties.
In short, I have concluded that subclause 7.18 applies to those employees employed on a part-time basis.
Clause 7 of the Agreement speaks to the ‘Hours of Employment’. That clause is subsequently divided by the subheadings of ‘Daily Shifts’, ‘Meal, Rest and Crib Breaks’ and ‘Weekly Rosters’. Prior to the subheading of ‘Daily Shifts’, subclause 7.1 sets out the ordinary hours of work for a full-time employee. One might assume that because subclause 7.1 prefaces the remainder of the subclauses in clause 7, it follows that all subclauses under clause 7 only pertain to full-time employees. Support for the proposition could, as submitted by Swan Transit, be garnered from the Agreement’s inclusion of discrete clauses that address both part-time and casual employment.
Subclause 7.18, which sits at the heart of this dispute, can be found under the subheading ‘Meal, Rest and Crib Breaks’ and, as rightly conceded by Swan Transit, the subclause does not specifically address the category of work to which it applies. While it may be assumed that because it is located in clause 7 its operation is limited to full-time employees, I am satisfied that the Agreement is ambiguous in this respect.
Subclause 7.1 specifically refers to the hours of work for a full-time employee. Similarly, under the subheading ‘Daily Shifts’, subclause 7.2 speaks to the minimum hours of work on a ‘Weekday’ for a full-time employee.
However, under the subheading ‘Daily Shifts’ the subclauses make no reference to the type or category of employment. This changes under the subheading ‘Weekly Rosters’ where the framers of the Agreement at subclause 7.28 make reference to full-time employees in the context that:
Full time Employees shall have preference over permanent part time and casual Employees
in the allocation of weekend overtime that has not been rostered. Where a full time Employee
has not accepted such weekend overtime by close of business on the Monday prior to the
rostered day for this overtime, this work shall be made available to part time and casual
Employees on an equal basis. (Italics my emphasis).
Turning to the clause 8, titled ‘Part-Time Employment’, as Mr Parker observed, clause 8 and its subclauses are silent in respect of entitlements to meal, rest and crib breaks, in addition to clauses which permit, for example, bus drivers to exchange work.
Clause 8 speaks to an employee and Swan Transit agreeing the regular days of work and total hours to be worked (subclause 8.2), what constitutes the nominal hours (subclause 8.3), and how agreed hours and days worked may be changed consensually to suit the depot’s requirements (subclause 8.4). While these subclauses deal with the part-time bus driver’s hours of work, they are silent as to the breaks that are required – whether meal, rest or crib breaks. Subclause 8.5 refers to ‘additional unrostered hours’ being worked by agreement and being paid at rates specified in the Agreement, and subclause 8.6 specifies the hourly rate of pay for a part time. Again, no reference is made to the entitlement to breaks.
It may be reasoned that by virtue of less hours of work in comparison to the full-time counterpart, the part-time bus driver has no entitlement to breaks. However, as the Agreement defines a part-time employee as an employee who works less than 38 ordinary hours per week Monday to Friday, it is apparent that this same category or type of employment, can be rostered to work shifts that necessitate the provision of a break. Whether that break is one for a meal, rest or a break between spread shifts. In my view the subclauses of clause 7 have work to do in this respect with the exception of those that denote their relevance to the full-time category of employment.
Subclause 8.4 permits a change to the agreed hours and days worked in subclause 8.2(a). In my view, that subclause does not extend to allowing the break in a spread shift to be varied for those employees who are part-time. It is limited in its terms to a change in ‘agreed hour’ and ‘days’ only. However, if I am wrong in this respect, the spread break length would arguably be able to be altered under this subclause, by agreement. However, as that question has not been asked – the statement is made by way of observation only.
The situation sits differently for those employees employed on a casual basis, which should come as no surprise given the ‘nature’ of casual employment. The Agreement at clause 9 sets out the parameters for the ‘casual’ type of employment. Subclause 9.1 defines the ‘casual’ employee as one who is paid on an hourly basis, whose hours and duration of engagement are uncertain, whose employment ceases at the completion of each separate engagement and who receives an all-inclusive payment. Subclause 9.5 adds that the casual employee is engaged to work on an ‘as required’ basis and that specific periods of casual employment will be offered if and when Swan Transit requires it. It is apparent that Swan Transit has, understandably, under the Agreement, retained greater flexibility insofar as the engagement of its casual workforce is concerned.
Swan Transit highlighted that the bargaining process for the Agreement, had resulted in the inclusion of subclause 7.19 which addressed spread shifts with a break greater than 4 hours being limited to 20% to the total spread shift rostered for full-time drivers.
Mr Thompson, the General Manager of Swan Transit, also gave evidence that having worked for the business since 2002 and having been involved in the bargaining process of each of the enterprise agreements for bus drivers since 2005, it had remained consistent that throughout this time split shift breaks greater than five hours had been utilised in the scheduling and rostering practices for casual and part-time drivers.[21]
The following principles from Berri assist with resolving the question of whether there
are any objective facts that would assist in the task of interpretation:
3. The common intention of the parties is sought to be identified objectively, that is by
reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
…
10. If the language of the agreement is ambiguous or susceptible of more than one
meaning then evidence of the surrounding circumstance will be admissible to aide the
interpretation of the agreement.11. The admissibility of evidence of the surrounding circumstances is limited to
evidence tending to establish objective background facts which were known to both
parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
(i) evidence of prior negotiations to the extent that the negotiations tend to
establish objective background facts known to all parties and the subject matter
of the agreement;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common
assumption.
13. The diversity of interests involved in the negotiation and making of enterprise
agreements (see point 4 above) warrants the adoption of a cautious approach to the
admission and reliance upon the evidence of prior negotiations and the positions
advanced during the negotiation process…14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
15. ……post-agreement conduct which amounts to little more than the absence of a
complaint or common inadvertence is insufficient to establish a commonunderstanding.[22]
Applying the legal principles for interpreting enterprise agreements and observations to the material before me, I am not persuaded that any material objective background facts can be established from the view of Mr Thompson. Neither Swan Transit nor Mr Parker adduced direct evidence regarding the negotiations for the Agreement or its predecessors. While Swan Transit produced excerpts of the predecessor agreements, even those excepts did not provide some of the clauses in their entirety.
Turning to Swan Transit’s argument, it relied in part on post-agreement conduct to show that there was a common understanding, and perhaps acceptance, that the rostering of spread breaks for part-time employees could extend past the five-hour limitation set out in subclause 7.18. Swan Transit referred to the TWU not taking issue with the rostering approach and thereafter not acting to resolve the issue through drafting changes to subclause 7.18. However, it is apparent that Mr Parker’s agitation about Swan Transit’s interpretation of subclause 7.18 occurred post the commencement of the Agreement. I consider it a long bow to draw that the absence of complaint by the TWU amounted to acceptance of a common practice. Given that Swan Transit had itself noted that the clause impacted a limited number of employees, it is perhaps unsurprising that no issue had been taken with the clause up until 2020.
Swan Transit contended that various iterations of the Agreement from 2005 up until the current Agreement had shown the agreed position regarding the rostering of split shifts insofar as the limitation of five hours for the spread break was applicable only to full-time employees. However, that ‘agreed position’ is one that must be inferred from the text of the excerpts from predecessor agreements in light of the paucity of direct or other evidence regarding negotiations for the agreement.
Regarding the excerpts provided, I make the following observations.
First, Swan Transit referred to an excerpt of the Swan Transit Certified Agreement 2005 (2005 Agreement),[23] which detailed at subclause 6.6 the limitation of a break in spread shift being between 91 minutes and five hours. That subclause was located under the subheading ‘Daily Shifts’. Preceding it was subclause 6.1, which specified the ordinary hours of work for full-time employees. Subclause 6.2, which similarly was located under the subheading ‘Daily Shifts’, stipulated the minimum hours of work on a weekday as 7 hours and 36 minutes and on a weekday as four hours. The subheading of ‘Meal, Rest and Crib Breaks’, which can be found in the current Agreement, was absent as were some of the other subclauses under that heading.
Second, the 2005 Agreement contained no equivalent provisions to those of clauses 8 and 9 of the Agreement (those clauses dealing with part-time and casual categories of employment).
Third, whilst mention was made of ‘part time’ in subclause 6.17, the rest of the Agreement appears to be framed by reference to only two types of employment – full-time and casual.
It is apparent that when the 2005 Agreement was made its coverage was limited to two categories of employment – full-time and casual. While reference is made in the 2005 Agreement to the category of ‘part time’ in subclause 6.17, that category is not considered when it comes to leave entitlements, the filling of vacancies (see subclause 16.1) or the base rates of pay at Appendix 1 of the Agreement, which refers only to ‘full time’ and ‘casual’. In fact, no further reference is made to the term ‘part time’ in the 2005 Agreement.
It is evident why Swan Transit considered that the spread break limitation of five hours (see subclause 6.6 of the 2005 Agreement) was limited in its application to full time employees in the context of the 2005 Agreement.
However, the Swan Transit Services Collective Agreement 2008 (2008 Agreement),[24] made provision for both part-time and casual employment with discrete parts of the Agreement (clauses 6 and 7 respectively) dealing with that subject matter by the inclusion of headings and subclauses equivalent to that now contained in the current Agreement. This position resonates in the Swan Transit Enterprise Agreement 2012 (2012 Agreement).[25]
Subclause 6.9 of the 2008 Agreement also set out:
The terms of this Collective Agreement shall apply pro rata to part time Employees on the number of ordinary weekly hours worked on the basis that ordinary weekly hours for full-time Employees are 38.
That same subclause was replicated in the 2012 Agreement at subclause 8.9 and at subclause 8.9 in the current Agreement.
The 2008 Agreement and 2012 Agreement included under their ‘Hours of Employment’ clauses, the subheading ‘Rosters shall include the following provision for the tasks listed below:’. Under that subheading in the 2008 Agreement, subclause 5.17, read:
Meal and crib breaks.
(a)….
(d) The break in a spread shift shall be between 91 minutes and 5 hours.
…
(f) Spread shifts with a break greater than 4 hours shall be limited to 20% of the total spread shifts rostered.
The subheading of ‘Weekly Rosters’ was included in the 2005 Agreement and subsequent agreements. Under that subheading the 2005, 2008, 2012 and the current Agreement included following subclause (subclause 6.17 in the 2005 Agreement, subclause 5.22 in the 2008 Agreement, subclause 7.12 in the 2012 Agreement and clause 7.28 in the current Agreement):
Full time Employees shall have preference over permanent part time and casual Employees in the allocation of weekend overtime that has not been rostered. Where a full time Employee has not accepted such weekend overtime by 12:00 noon on the Wednesday prior to the rostered day for this overtime this work shall be made available to casual Employees.
Whilst it is apparent that the 2005 was limited in its coverage to full-time and casual employees, the 2008, 2012 and current Agreement were not so limited. However, the point to be made is that while the subheading of ‘Weekly Rosters’ sits under the heading of ‘Hours of Employment’, a clause which in the current Agreement and its predecessors, provides from the outset the ordinary hours of work for full-time employees, it is evident that the ‘Hours of Employment’ clause expressly deals with all three types of employment when it comes to prioritising who is assigned overtime work on weekends. In isolation, there is nothing remarkable about this. However, it is apparent that the ‘Hours of Employment’ clauses in the current Agreement and the 2008 and 2012 Agreements do not read as setting out only the terms and conditions for full-time employees.
It is evident that some of the subclauses under clause 7 of the Agreement expressly deal only with full-time employment, take for example subclauses 7.1, and 7.2.
Swan Transit placed weight on the inclusion of subclause 7.19 through bargaining, which it said addressed spread shifts with a break greater than four hours being limited to 20% of the total spread shifts rostered for full-time drivers. However, no evidence was adduced to support Swan Transit’s proposition that the inclusion of subclause 7.19 was limited in its operation to full-time employees. There was no evidence of prior negotiations regarding subclause 7.19 or evidence to suggest that its operation was in common contemplation.
Swan Transit submitted that when considering the historical application of maximum spread breaks, it was clear that subclause 7.18 (notwithstanding numbering changes) had never applied to part-time drivers, in this Agreement, or any predecessor workplace instrument covering drivers. It continued that The Transport Workers (Swan Transit) Award 2002, in clause 16.3 stated: ‘[T]he break on a spread shift is to be a minimum of 90 minutes and a maximum of 5 hours’. The instrument’s construction of shifts was said to be consistent with the current approach where the application of breaks less than 5 hours was for full time drivers only.
Swan Transit further submitted that the Swan Transit Certified Agreement 2003 did not contain a reference to the maximum break for spread shifts. It reported that this was because it had offered a range of employment offers in Australian Workplace Agreements (AWAs) and those agreements contained provisions for full-time drivers having a maximum five hours break, and the part-time drivers agreements contained a six hour maximum break. These AWAs were, according to Swan Transit, provided to full-time employees only at the time and so the provision was not relevant to part-time employees.
I consider it uncontroversial that from 2002 up until 2008, the industrial instruments referred to by Swan Transit did not cater for part-time employment. However, in the 2008 Agreement this was not the case and, in the Agreement now, provision is made for part-time employees.
There is no evidence before me such as evidence of prior negotiations, or evidence as to what was explained to those who were to be covered by an enterprise agreement, regarding the effect of subclause 7.18. I do not consider that the evidence tendered supports a finding that the operation of subclause 7.18 was a notorious fact of which knowledge is to be presumed or its limitation to full-time employees was in common contemplation and constituted a common assumption.
From a contextual perspective the other subclauses under the ‘Hours of Employment’ appear to have work to do insofar as the part-time category of work is concerned. This can be discerned from the absence in clause 8 of the Agreement of any provisions dealing with meal, rest or other breaks and from the inclusion of subclause 8.9 of the Agreement. Of course, the current Agreement introduces the subheading ‘Meal, Rest and Crib Breaks’ under clause 7.
On an objective level I do not consider that clause 7 of the Agreement and clause 8 are standalone clauses. While clause 7 speaks to the entitlements of part-time employees it is not comprehensive in this respect. Where something is not dealt with by clause 8 regarding the part-time type of employment, such as breaks, in my view clause 7 deals with such matters. Clause 7 sets out various parameters or entitlements, which are not catered for in clause 8. It is observed that the relevant modern award is not incorporated into the Agreement.
Conclusion
When one considers the rulings sought by Mr Parker, it can be surmised that the parties to this dispute sought to have the following answered:
a) does clause 7.18 of the Agreement apply to all bus drivers employed by Swan Transit, whether they are full-time, part-time, or casual employees; and, therefore,
b) is the practice of Swan Transit of rostering part-time bus drivers for a spread shift which includes a break of more than five hours, not permitted by the Agreement?
For the reasons set out at paragraphs [25] to [42] of this decision, I have decided to express an opinion.
As Berri makes clear, the task of interpreting an agreement does not involve rewriting
its terms to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by those covered by it. I have been persuaded that the answer to question (a) is that clause 7.18 of the Agreement applies to full-time and part-time bus drivers, but not to casual bus drivers. Logic would dictate that rostering part-time bus drivers for spread breaks in excess of five hours would appear to be a practise not permitted by the Agreement.
DEPUTY PRESIDENT
On the papers
Last submissions:
6 December 2021
[1] [2017] FWCA 3859; PR594769.
[2] [2016] FWCFB 2019 (‘Kentz’).
[3] Ibid [70]-[74].
[4] Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434, 463.
[5] (1987) 163 CLR 656, 666.
[6] (1987) 163 CLR 140 (‘Cram’).
[7] Ibid 148 – 149 citing Reg v Gallagher; Ex parte Aberdare Collieries Pty Ltd (1963) 37 ALJR 40, 43.
[8] Cram (n 6) 149.
[9] PR908236.
[10] (2001) 203 CLR 645 (‘Private Arbitration Case’).
[11] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Zinfra Group[2015] FWC 5025, [10].
[12] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Kentz[2016] FWC 669, [46].
[13] SSX Services Pty Limited v The Australian Workers’ Union (2015) 250 IR 377, [18].
[14] Ibid.
[15] Swan Transit’s Outline of Submissions, [19].
[16] [2018] FCAFC 131 (‘Skene’).
[17] Ibid [197].
[18] Ibid.
[19] [2017] FWCFB 3005 (‘Berri’).
[20] Respondent’s Outline of Submissions, [47]-[49], [59].
[21] Witness Statement of Mr Brian Thompson, [6].
[22] Berri (n 19) [114].
[23] AG840380; PR958524.
[24] AE314415; AC314415.
[25] AE893262; PR522524.
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