[2020] FWC 2096

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Icon Water Limited
(C2019/7550)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 23 APRIL 2020

Application to deal with a dispute concerning the Icon Water and Combined Unions Enterprise Agreement 2017 – determined that the Agreement does not permit Icon Water to implement its proposed roster change for E/I Employees – parties to confer on the move of two employees to alternative roles.

[1] On 11 December 2019 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU – the Applicant) lodged an application made under s.739 of the Fair Work Act 2009 (the Act) and in accordance with the dispute resolution process of the Icon Water and Combined Unions Enterprise Agreement 2017 (the Agreement) 1.

[2] The dispute concerns whether Icon Water Limited (Icon Water – the Respondent) can under the Agreement alter the rosters worked by employees working in the Electrical Instrumentation section of the Electrical Maintenance Business Unit in the Water Operations and Maintenance Groups (the E/I Employees). The E/I Employees currently work 36 hours per week over an 8-day fortnight. Icon Water proposes that the Employees in future work their 36 hours per week as a 9-day fortnight. The dispute also concerns the move of two employees, Mr George Paxton and Mr Rick Miller, to alternative roles within Icon Water.

[3] The dispute was the subject of two conferences which failed to resolve the dispute. At the most recent conference on 11 March 2020, Icon Water agreed to defer implementation of its proposed roster change for a period of six weeks to allow the Commission to determine the matter.

[4] The application was the subject of a telephone hearing on 7 April 2020. At the hearing, Mr Tony Slevin of Counsel appeared with permission for the CEPU while Mr Luis Izzo appeared with permission for Icon Water.

[5] Evidence was given for the CEPU by:

• Mr Matthew McCann, an Organiser with the Electrical Trades Union of Australia (the ETU), New South Wales (NSW) Branch;

• Mr Robin Domaschenz, an electrician working in Icon Water’s Electrical Maintenance Team in the Water Operations and Maintenance Groups and an ETU delegate for the Electrical Maintenance and Instrumentation Team; and

• Mr Neville Betts, a former Divisional Assistant Branch Secretary with the ETU, NSW Branch (Mr Betts retired from that role on 1 September 2016).

[6] For Icon, evidence was given by Mr Neil Smith, Icon’s Maintenance Services Manager (Mr Smith left Icon Water on 27 March 2020 to take up a consulting role), and Mr Gary Emmett, Icon Water’s Team Leader, Plant Maintenance.

[7] For the reasons outlined below, I have determined that the Agreement does not permit Icon Water to implement its proposed roster change for E/I Employees. As to that aspect of the dispute relating to the move of Messrs Paxton and Miller to alternative roles, the parties should confer on that aspect with either party at liberty to seek a relisting of the matter in respect of that issue.

Background

[8] On 6 March 2019 Mr Smith received from Mr Emmett a proposal to align Icon Water’s maintenance teams to one roster. Currently, mechanical fitters and water maintenance officers in Icon Water’s maintenance area work a 9-day fortnight while the electrical and instrumentation teams work an 8-day fortnight. Mr Emmett’s proposal was reflected in a paper titled Lower Molonglo Maintenance Roster Alignment (the Options Paper) 2 which canvassed the following three options:

(i) move the electrical and instrumentation work groups to a 9-day fortnight;

(ii) move the mechanical fitters and water maintenance work groups to an 8-day fortnight; and

(iii) maintain the work groups on their current roster.

[9] In the Options Paper, Mr Emmett recommended option (i) above.

[10] In subsequent developments, on 16 October Mr Smith and Mr Emmett met with maintenance employees to let them know among other things that Icon Water was looking at aligning the maintenance team rosters.

[11] On 17 October Mr McCann sent an email to Mr Gerard Brierley, Icon Water’s General Manager Infrastructure Services, regarding the proposed changes. The email included the following:

“Can you enlighten me as to why these discussions around changes to working hours, threats to move people out of their positions and into ones they are not interested in moving to or shifting people to different work sections and reporting lines without having followed the proper consultation process in the agreement and why the ETU has not been consulted with on these proposed changes.

As we are about to embark on the next round of bargaining for a new Enterprise Agreement, it is disappointing to hear that the company appears to be lining their ducks up before negotiations commence, rather than waiting to advance its agenda at the bargaining table …

I think we might need to have a meeting early next week to sort out what is actually going on down at Lower Molonglo and why everyone is very concerned about the way these recent announcements have been handled …” 3

[12] On 21 October 2019 Mr Smith emailed the following document to maintenance employees:

“On Wednesday, 16 October 2019 I announced to the group that with Rick Miller on leave, the reporting lines for both the electrical and instrumentation sections would be updated to Tom Koenig.

…

As well as combining the teams we would also like to review the current roster to see if there are benefits in aligning both groups to work a nine day fortnight.

The benefits to this would be:

• All trades would be aligned to the same start and finish times. This enables better utilisation of staff across groups, particularly in relation to scheduling within Axle 4 to plan jobs that require different trades groups. Specifically, this means we can utilize one electrician and one fitter to complete a work order instead of sending two of the same trade group to complete a job.

• Provides a platform for a more cohesive workforce, particularly in relation to future accommodation requirements, where all groups will function and be scheduled as one cohesive group. This will help develop a better team culture over time, as the “us and them” mentality will disappear the teams merge [sic].

• Improve electrical coverage.

• Provide higher level of service to customer. To do that the roster needs to provide consistent service from all trades.

I would like to take your feedback on this idea before a final proposal is put forward for consultation.

Gary [Mr Emmett] is going to form a working group to work through how the combination of sections will work. If you are interested in joining this group please talk to Gary, we need to ensure we get as much input as possible to make sure we see the benefits we are able to from this change.” 5

[13] The working group met on 7, 14 and 21 November 2019 and again on 5 December 2019.

[14] On 29 November 2019 Mr Smith emailed maintenance employees responding to common themes raised in feedback received from employees in the electrical, instrumentation and mechanical sections.

[15] On 6 December 2019 Mr Smith wrote to maintenance employees in the following terms:

“Proposed changes to the roster and reporting lines

I am writing to you in accordance with the consultation provisions in the Icon Water and Combined Unions Enterprise Agreement 2017 (the Agreement) to advise you of proposed changes to the roster and the reporting lines for the Plant Maintenance Delivery, Instrumentation and Electrical sections within Infrastructure Services.

On Wednesday 16 October 2019 I outlined that with Rick Miller on leave, the reporting lines for both the electrical and instrumentation sections would be updated to Tom Koenig. I would like to announce that Tom Koenig has been appointed to this role on an ongoing basis ...

Expressions of Interest in Leading Hand roles

Within this revised structure as indicated I would like to appoint two leading hands, one from the instrumentation section the other from the electrical section …

Revise [sic] Roster proposal

The proposal is to align the current Electrical and Instrumentation roster with that of the Mechanical fitters and Water Maintenance Officers. The new roster will involve the following:

• 7am start and 3.50pm finish each day.

• A regular rostered day off (RDO) each fortnight.

• The RDOs will be scheduled for either Friday or Monday.

• An additional 5 rostered days off to be taken at time that is operationally convenient.

Stage 1: Consultation

A two (2) week consultation period commences today with yourself and the relevant Union and will end 5pm, Friday 20 December 2019. The purpose of this consultation period is to provide any feedback …

Stage 2: Implementation

Once the feedback for these amendments have been considered, the roster will be confirmed. You will be notified and given at least four (4) weeks notice of any changes, in line with clause 15.3 of the Icon Water and Combined Unions Enterprise Agreement 2017.” 6

[16] On 10 December 2019 Mr McCann wrote to Mr Brierley regarding Icon Water’s proposed changes. Mr McCann’s letter included the following:

“… It is obvious by the tone of the correspondence last week that you have made your decision and that the consultation is merely window dressing exercise. We also understand that the team leader roles have been finalised without the agreement from those two people affected.

The ETU seeks that the company immediately cease any further progress on these proposed changes. As you know bargaining has commenced for a new enterprise agreement and that the most appropriate place to deal with wholesale changes such as these would be through the bargaining process currently underway. It is impossible to adequately resolve these proposed changes in a measured and collaborative way in the timeframe you have outlines for the following reasons:

…

We put you on notice that this matter is now in dispute and seek a response from you by no later than 4pm today in relation to the abovementioned issues.

Furthermore we request that the matter now be progressed in accordance with the dispute procedure including referring the matter to the Fair Work Commission.

If we do not hear back from you on how you intend to move forward with this and are not interested in dealing with it in a collaborative and reasonable way then we will have no option other than to list the matter before the Fair Work Commission under an urgent dispute notification …” 7

[17] As previously mentioned, the CEPU lodged its application with the Commission on 11 December 2019 with the matter the subject of a conference held on 16 December 2019. At that conference Icon Water agreed to extend the consultation period until 7 February 2019, with maintenance employees advised of this in writing by Mr Smith on 19 December 2019. Mr Smith’s letter, although in similar terms to his letter of 6 December 2019, included the following:

“Stage 1: Consultation

… As part of this consultation process I invite you to give your view about the impact of the proposed roster change. In particular I actively encourage you to include how the proposed roster change may impact on your family or caring responsibilities.” 8

[18] On 18 February 2020, Mr Brierley wrote to maintenance employees advising that the 9-day fortnight would be implemented from 18 March 2020. Mr Brierley’s letter included the following:

“During the extended consultation period that ended on Friday 7 February 2020, I received personal feedback from most of you. I have read and considered all the feedback I have received and I will respond to each of you individually. I accept the eight-day fortnight roster has been in place for a number of years and understand that any change to this arrangement has the potential to have an impact on the way you have organised your life away from work.

I have spent time considering and reflecting on the feedback you have provided. While it is clear to me that there is support among the work force for the eight-day fortnight to continue, I have decided that the roster for the electrical and instrumentation teams will align to the mechanical fitters and WMOs roster; namely a nine-day fortnight.

• 7am start and 5.50pm [sic 3.50pm] finish each day

• A regular rostered day off (RDO) each fortnight scheduled on either Friday or Monday

• An additional 5 rostered days off to be taken at a time which is operationally convenient.

In line with clause 15.3 of the Icon Water and Combined Unions Enterprise Agreement 2017, you are now given four weeks’ notice prior to implementation of the new roster on Wednesday 18 March 2020. If you have child care, or other care arrangements that cannot be revised within this notice period, alternative individual arrangements should be discussed with Gary Emmett.” 9

[19] In subsequent developments, the CEPU wrote to Icon Water on 26 February 2020 seeking an undertaking that it would not implement the 9-day fortnight for the electrical and instrumentation teams prior to its application being determined by the Commission. Mr Brierley responded on 2 March 2020 stating that Icon Water would not be delaying the implementation date.

[20] As mentioned above, at a conference before the Commission on 11 March 2020 Icon Water agreed to defer implementation of the roster change for a period of six weeks to allow the Commission to determine the matter.

The Agreement provisions

[21] The relevant provisions of the Agreement which were canvassed in the parties’ respective submissions are set out below.

2 Interpretation and Definition

2.2 In this Agreement, the terms below have the following meanings:

“Consultation” means more than a mere exchange of information. For consultation to be effective the participants must be contributing to the decision-making process not only in appearance but in fact.

“New Work Arrangements” refers to arrangements such as proposed rosters, hours of work, duties and roles that are not explicitly provided for in this agreement.

“Workplace Change” refers to significant changes identified by either party to the way work is done and includes changes to corporate procedures, work processes and practices and the introduction of new equipment or technology.

4 Interaction with Schedules

4.1 If there is any inconsistency between the express terms of this Agreement and a Schedule to this Agreement, the Schedule will prevail to the extent of any inconsistency.

7 Agreement to be Comprehensive

7.2 During the period starting on the date this Agreement starts operating and ending on the nominal expiry date, no further claims may be pursued in respect of the terms and conditions of employment by a person or organisation covered by this Agreement, except where such claims are consistent with the terms of this Agreement.

12 Consultation Provisions

Organisational Restructures

12.1 Employee and union representatives will be advised that management is planning a restructure and will be given a copy of the resume of any consultant involved in the restructure prior to their engagement and have the opportunity to comment on the engagement of the consultant and the terms of reference of the restructure. The Director People and Performance and the relevant General Manager will have the responsibility to ensure that unions and employees are advised of the circumstances of a restructure.

12.2 Management will then develop proposals governing, for example, numbers and classifications of employees, structures, selection criteria, duties, and selection processes where appropriate and consider any input from employee representatives when developing the proposals. Management then shall consult on these issues with the relevant parties who have coverage under this Agreement.

12.3 Employees may invite employee representatives to any consultation on restructuring.

12.4 After taking into account issues raised by employee and employee representatives, management has the accountability to make the decision and implement the restructure/change needed.

Major workplace changes

12.5 Icon Water will consult with employees and organisations covered by this Agreement on major workplace changes that are likely to have a significant effect on employees covered by this Agreement.

12.6 Consultation regarding redundancy is addressed in clause 77 of this Agreement.

12.7 If an employee(s) appoints a representative for the purposes of this consultation, and the employee(s) advises Icon Water of the identity of the representative, Icon Water must recognise the representative.

12.8 Every effort will be made to ensure the consultation period takes no longer than four weeks.

12.9 Management will take all reasonable steps to ensure that any disadvantage due to the change to any employee is minimised before implementing the change.

Changes to ordinary hours of work

12.10 Icon Water will consult employees to whom this Agreement applies about changes to regular roster or ordinary hours of work. For the purposes of this consultation, Icon Water will:

(a) provide information to employees about the change;

(b) invite the employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities); and

12.11 If an employee(s) appoints a representative for the purposes of this consultation, and the employee(s) advises Icon Water of the identity of the representative, Icon Water must recognise the representative.

13 Day workers

13.1 Day workers are full time employees who work:

(a) standard hours (36.75) hours per week, or

(b) 36 hours per week - for employees classified as:

Water Industry Operators, Plant and Transport Workers and employees working in the Maintenance Services Branch in the Treatment Business Unit (see Schedule A),

on any day or all days of the week, Monday to Friday inclusive.

13.2 Employees working a nine day fortnight as per clause 13.1(b) shall work eight hours (8.00) per day and take one rostered day off per fortnight on a day agreed by employees and local management.

13.3 Other (administrative/professional) employees shall work seven hours 21 minutes (7.21) per day and may work flexible working hours agreed by the parties to this Agreement.

G HOURS OF WORK

40 Standard Hours of Work

40.1 The standard hours of work for a non-shift worker will be worked between the hours of 6.00am and 6.00pm, Monday to Friday inclusive.

40.2 An employee’s ordinary times of commencement and cessation of duty within the span of his or her standard hours of work will be determined by Icon Water in consultation with the employee.

N SCHEDULES

Schedule A – Water Operations and Maintenance Groups

This Schedule applies to all relevant employees working in the Water Operations and

Maintenance Groups.

2 Thirty Six Hour Week

2.1 This clause applies to employees who are:

(a) classified as Water Industry Operators and Plant and Transport Workers in the Maintenance Services Branch, and

(b) working in the Maintenance Services Branch in the Treatment Business Unit.

2.2 The standard hours of work of employees referred to in clause 2.1 will be 36 hours per week, to be worked over:

(a) eight consecutive hours per day (exclusive of meal breaks) between the hours of 6:00am and 6:00pm; and

(b) a nine day fortnight with one RDO between the hours of 6.00am and 6.00pm.

2.3 The spread of hours referred to in clause 2.2(a) above may be altered by mutual agreement between Icon Water and the employees concerned.

2.4 The starting and finishing times within the spread of hours will be in accordance with the arrangements Icon Water has in place on the date this Agreement commences operation.

23 Electrical Maintenance Business Unit

Eight day fortnight

23.1 Employees will work an eight or nine day fortnight totalling 72 standard working hours. Employees will also receive one or two RDOs per fortnight. Employees covered under this arrangement will have either one two day and one four day weekend each fortnight or a one two day and one three day weekend.

23.2 It is recognised by both parties that this arrangement will result in Treatment and external facilities being covered by full Electrical/Instrumentation (E/I) resources for only three days per week with coverage for the other days provided by half of the E/I resources. Therefore to ensure that maintenance requirements can be met, there may be occasions when additional employees from within Treatment‘s Electrical/Instrument work groups will be required to be made available on Mondays and Fridays.

23.3 If an employee takes a day of annual or personal/carers leave, the leave will be deducted from the applicable leave balance as follows:

(a) eight hours where employees working a nine day fortnight; or

(b) nine hours, where employees work an eight day fortnight

Other types of leave entitlements will remain in “days” and be debited as “days”.

23.4 If work levels require some flexibility in the hours, employees may be required to work on RDOs. If this occurs the employee can elect to:

(a) take the RDO at a later date; or

(b) have the hours worked on the RDO counted towards their threshold overtime hours.

The Applicant’s case

[22] The CEPU contended that:

• the Agreement did not permit Icon Water to change the E/I Employees’ rosters as they were set by clause 23 in Schedule A of the Agreement;

• the proposal to change the rosters was a further claim which was prohibited by clause 7 of the Agreement;

• in the alternative, Icon Water had failed to comply with its consultation obligations under clause 12 of the Agreement and as such could not implement the change in rosters – in particular the CEPU contended that Icon Water had not engaged in anything more than a mere exchange of information such that employees were not contributing to the decision-making process but were simply being told what Icon Water intended to do; and

• a fair resolution of the dispute would be that Icon Water was prevented from making the change to the roster. The CEPU highlighted several reasons as to why the Commission should adopt this approach, including that:

the existing roster arrangement had operated for 20 years,

the roster change would have an adverse impact on the work/life balance of E/I Employees

Icon Water had not identified any efficiencies or cost savings from the proposed change,

the issue was more appropriately considered in the context of bargaining for a replacement agreement, and

were the change to be implemented E/I Employees would be working an additional 78 hours per annum for no increase in remuneration.

[23] In respect of the first of the abovementioned contentions, the CEPU submitted that the question of whether Icon Water was precluded form changing the E/I Employees’ rosters turned on the proper construction of the provisions of Schedule A of the Agreement. The CEPU posited that the terms of Schedule A were not clear to a reader not familiar with the industrial context, purpose and history. Drawing on the principles regarding the construction of industrial instruments set out in several authorities, including WorkPac Pty Ltd v Skene (WorkPac) 10, the CEPU submitted that in construing Schedule A the Commission should be mindful that inter alia the context included ideas that gave rise to expressions used in predecessor agreements from which the Schedule was taken. To that end, the CEPU added, the evidence of Mr Betts was instructive as to the history of the hours arrangements for E/I Employees. In support of its contention, the CEPU highlighted that:

• Schedule A of the Agreement provided specific terms and conditions of employment which applied to various classifications of employees, with the E/I Employees coming within the group of employees described at clause 2.1(b) of the Schedule;

• clause 2.4 of the Schedule provided that the starting and finishing times would be in accordance with the arrangements which were in place when the Agreement commenced operation;

• clause 23 of the Schedule did not disturb the operation of the abovementioned provision; and

• the provisions of the Schedule did not permit Icon Water to introduce the proposed roster change.

[24] As to the second of the abovementioned contentions, the CEPU submitted that clause 7.2 of the Agreement provided a no further claims commitment that precluded the 8-day fortnight arrangement worked by E/I Employees from being disturbed. This the CEPU submitted was because the exception in clause 7.2 reflected in the words “except where such claims are consistent with the terms of this Agreement” did not apply as the Agreement did not provide for a departure from the 8-day fortnight.

[25] In its reply submissions, the CEPU contended among other things that:

• clause 40.2 of the Agreement must yield to the rostering provisions in Schedule A of the Agreement as a result of clause 4.1 of the Agreement which provides that where there was an inconsistency between the terms of the Agreement and a Schedule that the latter would prevail;

• there was a direct inconsistency between clause 40.2 of the Agreement and clause 2.4 of Schedule A;

• Icon Water sought to avoid this inconsistency by claiming that clause 2 of Schedule A of the Agreement did not apply to E/I Employees because of the word “and” at the end clause 2.1(a) was to be read conjunctively such that the clause required employees to meet the descriptions at clauses 2.1(a) and (b) to be covered by the clause;

• Mr Betts’ evidence was that the intention was always that clause 2 of Schedule A (and its predecessors) applied to all employees covered by the Schedule, with that evidence supported by the text of clause 13 of the Agreement;

• if Icon Water’s interpretation of clause 2 of Schedule A of the Agreement was correct then maintenance workers in its Maintenance Services Branch would not be on a 36 hour week and their hours would consequently be 36.75 hours per week, adding that this was contrary to the industrial reality that all E/I Employees worked a 36 hour week;

• the proposal to move to a 9-day fortnight clearly involved changes to start and finish times and therefore was contrary to clause 2.4 of Schedule A of the Agreement;

• the steps described by Mr Smith and Mr Emmett in their respective witness statements as having been taken towards restructuring Icon Water’s maintenance area, i.e. engaging a consultant to undertake a review in 2018 and developing the Options Paper in March 2019, all occurred without consultation;

• the proposal to restructure was not discussed with employees until October 2019;

• it was clear on the Respondent’s evidence that none of the steps in clauses 12.1 and 12.2 of the Agreement had been taken, highlighting that employees were not given the opportunity to provide input on the proposals while they were being developed; and

• the Commission should determine that Icon Water should not be permitted to implement the proposed change because it had failed to take the necessary steps under the Agreement to implement the change.

[26] At the hearing the CEPU stated that it relied on its written submissions. Beyond that, the CEPU reiterated aspects of it written submissions and highlighted the relevant provisions of the Agreement. On the latter point, the CEPU submitted inter alia that:

• clause 40.2 did not apply in respect of maintenance employees;

• clause 2.1 of Schedule A was intended to mirror clause 13.1(b) of the Agreement, adding that the provision should therefore be read as per clause 13.1(b) because if it was not there was nowhere else in the Agreement which provided maintenance employees with a 36 hour week;

• if the Agreement was read as it suggested the Commission could be satisfied that there was no ambiguity regarding the terms of the Agreement, adding that if the Commission considered that ambiguity did exist then an examination of the predecessor agreements supported its construction of the Agreement;

• the purpose of the disputed provisions also supported its construction of the Agreement, adding that maintenance employees either worked an 8-day or 9-day fortnight and that this could not change during the life of the Agreement; and

• when one looked at the structure of the Agreement it could be seen that it included cascading provisions regarding hours of work.

[27] The CEPU drew on the decisions in Transport Workers’ Union of New South Wales v Australian Industrial Relations Commission (TWU v AIRC) 11 and Construction, Forestry, Mining and Energy Union – Northern Mining and NSW Energy District v Hitachi Construction Machinery (Australia) Pty Ltd12 in support of its submissions.

[28] On the consultation issue, the CEPU submitted that Icon Water’s proposed changes amounted to both an organisational restructure and a major workplace change thereby enlivening the relevant consultation obligations under clauses 12.1-12.4 and 12.5-12.9 of the Agreement respectively. The CEPU also submitted that clause 12.10 of the Agreement was engaged in respect of Icon Water’s proposal to move E/I Employees to a 9-day fortnight. Among other things, the CEPU alluded to Mr Smith’s evidence that he referred to the Respondent’s proposed changes as “structural changes” in his September 2019 meeting with Mr Brierley 13, the Shiftwork Solutions report which went beyond an examination of rosters, Icon Water’s failure to provide it and employees with the terms of reference (if any) for the scope of the review to be undertaken by Shiftwork Solutions, any details about Shiftwork Solutions, a copy of the Shiftwork Solutions Report or a copy of the Options Paper to support its contention that Icon Water had not met its consultation obligations under the Agreement.

[29] Finally, the CEPU supported the approach proposed by Icon Water in its oral submissions in respect of the dispute as it concerned Messrs Paxton and Miller, i.e. that the parties be left to resolve that issue without the Commission having to make a determination on that aspect of the dispute. As to s.739(5) of the Act, the CEPU submitted that as the Agreement provided for an 8-day fortnight it was not asking the Commission to determine the dispute in a manner that was inconsistent with the Agreement.

[30] Mr Betts provided two witness statements. 14 In his witness first witness statement Mr Betts provided a comprehensive history of the operation of the 8-day fortnight for E/I Employees dating back to its introduction in 1999. In doing so, Mr Betts traversed the evolution of the enterprise agreement provisions relating to the 8-day fortnight commencing with the ACTEW Corporation Agreement 199915 and ending with the Agreement (though Mr Betts noted in his witness statement that he was not involved in the negotiations for the Agreement as he had retired by that time). Among other things, Mr Betts deposed that the 8-day fortnight was introduced in 1999 as a package of new work arrangements involving a move to self-directed work teams and annualised salary arrangements, adding that the new work arrangements were initially trialled for six months with the trial subsequently extended and the arrangements ultimately formalised about twelve months after they had commenced. Mr Betts also deposed that the definition of consultation which appears in the Agreement (see paragraph [21] above) first appeared in the ActewAGL and Combined Unions Enterprise Agreement 200216 and had not changed since then.

[31] In his second witness statement, Mr Betts responded to aspects of Mr Smith’s witness statement regarding the negotiations for the 2011 agreement 17 and to aspects of Icon Water’s submissions. In short, Mr Betts deposed that:

• during the 2011 agreement negotiations the ETU never agreed to change from an 8-day fortnight to a 9-day fortnight;

• the absence of the words “by agreement” in clause 24.1 of Schedule B of the 2011 agreement which dealt with the 8-day fortnight (and is the equivalent provision to clause 23.1 of Schedule A of the Agreement) was intended to remove any ambiguity that the employer could do away with the 8-day fortnight during the life of the 2011 agreement; and

• the inclusion of clause 24.5 in Schedule B of the 2011 agreement was to facilitate a review of the 8-day fortnight, ensure the flexibility provision was complied with and keep management honest

by way of background, clause 24.5 read “[w]ithin a period of six months from the commencement of this Agreement ActewAGL will consult with relevant staff and Unions on the eight day fortnight to assess its continuing operation.”

[32] Key aspects of Mr Betts’ oral evidence included that:

• he did not accept that clause 24.5 in Schedule B of the 2011 agreement contemplated the possible cessation of the 8-day fortnight;

• while the clause did not reference flexibility, its purpose was to monitor the process of flexibility and ongoing compliance with the flexibility provisions of the 2011 agreement;

• it was not his interpretation of the 2011 agreement that workers could change from a 9-day fortnight to an 8-day fortnight, alluding to Annexure “NDS8” to Mr Smith’s witness statement 18 which indicated that as part of the negotiations for the 2011 agreement the employer committed that there would be no reduction of current entitlements and conditions and that such a move would also constitute a further claim which would be inconsistent with the 2011 agreement; and

• the entitlements under the Agreement in respect of ordinary hours, overtime and threshold hours would not be affected if an employee moved from an 8-day fortnight to a 9-day fortnight.

[33] Mr McCann also provided two witness statements. 19 In his first witness statement Mr McCann set out the chronology of events over the period October 2019 until 11 December 2019 when the CEPU filed its application with the Commission. Among other things, Mr McCann referred to correspondence he sent to Mr Brierley (see paragraphs [11] and [16] above) and deposed that he recalled having conversations with Mr Brierley regarding the proposed change to the 8-day fortnight in which he said that the issue was a matter for bargaining.

[34] In his second statement Mr McCann responded to and disputed aspects of the statements of Mr Smith and Mr Emmett and also responded to aspects of Icon Water’s submissions. Among other things Mr McCann deposed that:

• he was not advised in accordance with clause 12.1 of the Agreement that Icon Water was planning a restructure of the Electrical and Instruments Team;

• the restructure when implemented saw two employees, Mr Paxton and Mr Miller, transferred to other roles with both suffering severe health problems as a result;

• he considered the Options Paper prepared by Mr Emmett to constitute the development of a proposal under clause 12.2 of the Agreement, adding that he was not consulted on the Options Paper as required by the provision;

• he considered changes to the structure and alignment of Icon Water’s maintenance teams to be a restructure, noting that the CEPU was not notified in accordance with or consulted under clauses 12.1 and 12.2 of the Agreement;

• by the time he became involved in the restructuring matter a decision had already been made such that the CEPU was only able to gauge the impact it would have on employees and protest about the proposal being implemented;

• if the proposal to move to a 9-day fortnight was to align the hours of E/I Employees with fitters so that work could be performed together then fitters should have been involved in discussions, adding that to his knowledge no fitters ever attended working group or consultation meetings regarding the proposal; and

• he had not been provided with a copy of the review of rostering undertaken by Shiftwork Solutions in May 2018.

[35] At the hearing, Mr McCann attested among other things that:

• the proposed move to a 9-day fortnight would not result in changes to the classifications, job titles or qualification requirements of E/I Employees, would not change the work performed by those employees and did not involve a proposal to make employees redundant;

• he saw the move to a 9-day fortnight as a change to working hours as opposed to a roster change;

• he read clause 12.1 of the Agreement as applying to changes to work arrangements and working hours;

• he did not accept that none of the examples cited in clause 12.2 of the Agreement applied in this case, referring to Messrs Paxton and Miller being moved to other roles;

• •he did not agree that the realignment of the maintenance teams and the proposal to move to a 9-day fortnight were not contingent on each other;

• signed the Grievance report 20 dated 21 January 2020 which described the details of the grievance as “change to rostered working hours”, with the form having been filled out by Mr Domaschenz;

• the abovementioned description of the grievance reflected the issue which the parties were dealing with at the time, adding that both he and Mr Domascehnz had separately raised concerns regarding Messrs Paxton and Miller with Icon Water;

• the situation regarding Messrs Paxton and Miller was not relevant at that time as neither person was in the workplace;

• Mr Smith’s statement at the meeting of 16 October 2019, in so far as it related to Mr Miller and Mr Koenig, confirmed that Icon Water was proposing an organisational restructure; and

• the fact that the realignment of the maintenance teams and the move to a 9-day fortnight were happening at the same time made the changes an organisational restructure.

[36] Mr Domaschenz also provided two witness statements. 21 In his first witness statement Mr Domaschenz deposed that he had worked an 8-day fortnight roster since he commenced work with the Respondent in February 2009. As did Mr McCann in his first witness statement, Mr Domaschenz provided a detailed overview of events over the period October 2019 to 5 March 2020 regarding Icon Water’s proposal for E/I Employees to work a 9-day fortnight. Among other things, Mr Domaschenz deposed that:

• on 5 December 2019 he attended a meeting with management for which employees had prepared questions and alternatives to the proposed change, adding that there was no discussion at the meeting as Mr Emmett tabled a letter from Mr Smith announcing that negotiations were over and that he was now implementing a two-week consultation period after which the roster would be confirmed; and

• between about 14 and 20 January 2020 employees affected by the proposed change sent statements to Icon Water describing how the change would impact them and their families

the summary provided by Mr Domaschenz indicated that most employees cited an impact on work/life balance and caring responsibilities, with some employees indicating that they accepted their job with the Respondent because of the 8-day fortnight.

[37] In his second witness statement Mr Domaschenz responded in some detail to most aspects of Mr Emmett’s and Mr Smith’s respective witness statements. Key aspects of his second statement included that:

• by the end of the third meeting of the working group, the employee members of the group realised inter alia that management never had any intention of genuinely negotiating, that management had very little understanding of current work practices and that the whole process was only ever intended as a show;

• he had not previously seen the Options Paper, adding that the Paper had not been provided to any other E/I Employees; and

• no evidence was provided by management to the working group that the 8-day fortnight was not working.

[38] In his oral evidence, Mr Domaschenz stood by his statement that moving to a 9-day fortnight would provide five hours less coverage by E/I Employees during a week, though he acknowledged that there would be more people on one day for a lesser period of time and that the affected employees would still be working 36 hours per week. Mr Domaschenz also attested that he had filled out the Grievance report 22 dated 21 January 2020 which described the details of the grievance as “change to rostered working hours”, adding that concerns regarding the treatment of Messrs Paxton and Miller were a separate issue to that grievance.

The Respondent’s case

[39] Icon Water in its submissions described the notified changes as involving the following two elements:

(i) E/I Employees who work an 8-day fortnight moving to a 9-day fortnight; and

(ii) the Employees working an extra ten minutes per day to ensure compliance with clause 41.6 of the Agreement which provides for an unpaid rest period of ten minutes in the first half of each day or shift, with employees compensated for this through the provision of an additional five rostered days off (RDO’s) each year which ensured that they would be working the same number of hours each year.

[40] As to the scope of the Commission’s power to determine the dispute, Icon Water submitted that any decision by the Commission must be limited to interpreting or applying the terms of the Agreement and be consistent with the terms of the Agreement, adding that the effect of this was that were the Commission to find that the Agreement did not preclude it from introducing the proposed changes then the Commission was not empowered to issue a decision either determining that it could not introduce or binding it not to introduce its proposed changes.

[41] Key aspects of Icon Water’s submissions included that:

• when the provisions of the Agreement were read as a whole, it was readily apparent that the Agreement permitted and facilitated its proposed changes and provided a clear and comprehensive framework for the rostering of hours, highlighting that:

clause 13.1 provides for a 36 hour week,

clause 40.1 provides that the hours rostered within the span of ordinary hours will be determined by it, and

clause 23 of Schedule A made it clear that those rostered hours must be worked over 8 or 9 days;

• the notion that it could change hours of work during the life of the Agreement was also contemplated by clause 12.10 – Changes to ordinary hours of work of the Agreement;

• the historical progression of the predecessor agreements supported the view that the Agreement facilitated the rostering of employees on a 9-day fortnight, emphasising that the provisions contained in the Agreement (which mirrored those in the 2011 agreement) were intended to facilitate employees being shifted off the 8-day fortnight;

• the terms of the 2011 agreement were a deliberate departure from the agreement which preceded it and which provided for employees to work an 8 or 9 day fortnight “by agreement”;

• the proposed changes were not an extra claim within the meaning of clause 7.2 of the Agreement because the Agreement provided it with the express power to determine the times at which employees worked within the span of hours and also contemplated employees being required to work a 9-day fortnight and changes to hours of work taking effect following consultation;

• for the above reasons the proposed changes were consistent with the terms of the Agreement and were not therefore prohibited by clause 7 of the Agreement;

• clause 2 of Schedule A of the Agreement only applied to employees who were both classified as Water Industry Operators or Plant and Transport Workers and working in the Maintenance Services Branch in the Treatment Business Unit because of the conjunctive use of the word “and” in the clause, adding that E/I Employees were neither Water Industry Operators nor Plant and Transport Workers and therefore did not meet the first pre-requisite for the provision to apply;

• the CEPU’s interpretation of clause 2 of Schedule A required the Commission to form the view that the word “and” at the end of clause 2.1(a) of the Schedule was intended to be read as “or”;

• even if the Commission accepted that clause 2 of Schedule A applied to E/I Employees it did not render the proposed changes prohibited by the Agreement because the clause did not fix or lock in an individual employee’s existing working hours, adding that its proposed changes would not alter the start and finish times for the 8-day and 9-day fortnight rosters that were in place on commencement of the Agreement;

• it rejected any assertion that it had not complied with its consultation obligations under the Agreement, adding that having regard to the chronology of the matter it could not be credibly maintained that it had not consulted on its proposed changes;

• consultation had been undertaken for a period of four months;

• the Commission should not accept the CEPU’s contention that even if its proposed changes were not inconsistent with the Agreement they should not be permitted to proceed because:

this would be inconsistent with the Commission’s longstanding approach to not interfere with managerial prerogative, citing the decisions in Australian Federated Union of Locomotive Enginemen and State Rail Authority of New South Wales (XPT Case) 23 and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Limited24,

the CEPU’s contention constituted a further claim not permitted by clause 7 of the Agreement, and

there was a clear merit basis for the proposed changes which was outlined in the witness statements of Mr Smith and Mr Emmett; and

• having regard to the above, the Commission should dismiss the application and decline to grant the relief sought by the CEPU.

[42] At the hearing Icon Water described the two issues in dispute as its proposed change in the roster worked by E/I Employees and the matter of Messrs Paxton and Miller being moved to other roles, adding that the issues were separate matters. In support of that latter contention, Icon Water pointed to a number of considerations, including the Grievance form 25 which described the details of the grievance as “change to rostered working hours” and Mr Domaschenz’s oral evidence that the issues were separate. Icon Water also stated that it relied on its written submissions and the decision in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited (Berri)26 referring in particular to Principles 1, 3 and 9 in the decision.

[43] As to the terms of the Agreement, Icon Water submitted inter alia that:

• with regard to clause 2.1 of Schedule A of the Agreement:

it accepted that there were authorities which acknowledged that the conjunctive application of the word “and” led to an absurd result on occasions,

its interpretation of the provision remained available given that subclauses (a) and (b) were different in that they were respectively concerned with the classification of employees and where they worked, and

it did not need to succeed on this point because in its view clause 2.4 of the Schedule was not contravened by its proposed roster change;

• clause 2.4 of the Schedule was not directed at the roster an employee was working as that was dealt with by clause 2.2 of the Schedule, adding that there were clear arrangements in place in respect of both the 8-day and 9-day fortnight and that it was not changing the starting or finishing times under those arrangements;

• the proposed roster change was consistent with clause 23 of Schedule A as that provision and clause 2.4 of the Schedule could work together consistently; and

• the CEPU’s contention that no change was permissible at all sat uncomfortably with clause 23 of the Schedule which contemplated employees working either an 8-day or a 9-day fortnight, adding that clause 2.4 of the Schedule could not be seen as prohibiting a roster change.

[44] On the issue of consultation, Icon Water conceded that clauses 12.5 and 12.10 of the Agreement were engaged in respect of its proposed roster change, adding that significant consultation did occur regarding its proposed change. However, Icon Water disputed that its proposed changes constituted an organisational restructure as per clause 12.1 of the Agreement, contending that the provision was directed at large, organisation wide and part-organisation wide restructures.

[45] Finally, as to its proposed disposition of the proceedings, Icon Water submitted that if its arguments were accepted its proposed changes should proceed and the Commission should not interfere with either the implementation of its proposed roster change or the move of Messrs Paxton and Miller to different roles. In the alternative, if the Commission determined that the roster change was not permitted under the Agreement, it should not interfere in respect of the move of Messrs Paxton and Miller given the lack of any real evidence before the Commission regarding that aspect of the dispute. Rather, that matter should be left unresolved with the parties to confer on the matter with recourse to the Commission if necessary.

[46] Mr Smith, who commenced as Icon Water’s Maintenance Services Manager in January 2017, deposed in his witness statement 27 that upon commencing he observed that mechanical fitters, water maintenance, electrical and instrumentation teams worked different rosters with the latter two teams working an 8-day fortnight. Mr Smith further deposed that the maintenance teams operated in ‘silos’ with very little co-ordination of multi-disciplinary trade activity. Mr Smith stated that in mid-2018 he asked Mr Emmett, who had commenced with Icon Water in late 2017, to look at all four maintenance teams and in particular the electrical and instrumentation teams, adding that he also asked Mr Emmett to look for opportunities to improve how the electrical and instrumentation teams worked and how all four teams interacted at work. According to Mr Smith a few weeks later when Mr Emmett suggested to him that all the teams should be on one roster, he asked Mr Emmett to put something to him writing, adding that they both agreed that a standard roster pattern would enable:

• better group communication which would develop greater consistency in work processes;

• consistent planning and scheduling;

• better scheduling of proactive maintenance; and

• better work flow planning from an equipment and budgeting perspective.

[47] Mr Smith deposed that he had received an email from Mr Emmett on 6 March 2019 which contained a written proposal to align the plant maintenance rosters (i.e. the Options Paper), with he and Mr Emmett commencing discussions with the four teams on 16 October 2019 about aligning them to work on the one roster. Mr Smith stated that he then asked Mr Emmett to set up a working group with people from the electrical and instrumentation team, adding that the CEPU was advised on 21 October 2019 by the Respondent’s human resources area that Icon Water wanted to commence discussions about combining the electrical and instrumentation teams and the alignment of the roster across the maintenance teams to a 9-day fortnight roster. Mr Smith further stated that in late November following a meeting with Mr Craig Brown, Icon Water’s Employee Relations Advisor, he decided to put a stop to the informal working group meetings. This followed advice from Mr Brown, who attended the third meeting of the working group at Mr Smith’s request, to the effect that the meetings were counter-productive and that the group appeared completely unwilling to explore other options.

[48] Beyond that, Mr Smith outlined subsequent developments in the matter, deposing inter alia that:

• on 6 December 2019 he sent correspondence to all members of the electrical and instrumentation teams informing them that Icon Water was commencing formal consultation on its proposed change to rosters and that there would be a two-week consultation period ending on 20 December 2019;

• the CEPU’s dispute application was the subject of a conference before the Commission on 16 December 2019;

• on 19 December 2019 he wrote to electrical and instrumentation team members advising them that the consultation period had been extended to 7 February 2020 and reminding them that they had the opportunity to provide feedback on the impact of the proposed roster change might have on them;

• he considered each of the responses received as part of the consultation process, adding that there was no information provided by employees to suggest that the teams should not be aligned on a 9-day roster; and

• on 18 February 2020 Mr Emmett organised a meeting with the electrical and instrumentation teams to inform them of Icon Water’s decision regarding the roster change, with the decision to implement the 9-day fortnight on 18 March 2020 subsequently confirmed in correspondence sent to employees later that day by Mr Brierley.

[49] In his oral evidence Mr Smith was questioned about aspects of Mr McCann’s and Mr Domaschenz’s second witness statements. In response, Mr Smith attested inter alia that:

• no decision regarding the proposed change had been made at the time of the initial conference before the Commission on 16 December 2019, adding that no decision had been made until after the consultation period had ended;

•

• he did not see how the proposed change came within clause 12.1 of the Agreement; and

• he had read all of the impact letters provided by staff, had discussed the key themes in those letters with Mr Emmett and Mr Brown and asked the latter to take the lead in respect of the issues raised as he [Mr Smith] was about to commence a period of annual leave.

[50] Other aspects of Mr Smith’s oral evidence included that:

• Shiftwork Solutions had been engaged to look primarily at the excessive hours worked in the network maintenance area as a result of on-call arrangements and whether this resulted in a fatigue issue, adding that they were also asked to look a rosters elsewhere in the Branch to ensure that similar issues did not exist;

• Icon Water did not proceed with the recommendations set out in the Shiftwork Solutions report regarding the Maintenance Branch as there did not appear to be the same fatigue issues in the Branch;

• he was concerned about the siloed approach of maintenance teams and about self-directed work teams;

• he could not recall how the Shiftwork Solutions review commenced or whether there were terms of reference for the review, adding that he probably received in the order of 12 to 15 briefings on the review as it was being conducted;

• the Shiftwork Solutions report included various alternative 9-day and 8-day fortnight Plant roster options; 28

the Shiftwork Solutions report indicated that the 8-day roster was more efficient than a 9-day roster on the basis that 9 hour shifts were more efficient that 8 hour shifts; 29

his discussion with Mr Emmett in mid-2018 was not prompted by the Shiftwork Solutions report, adding that he wanted to shift the proportion of planned to reactive maintenance from 50-50 to 80-20;

he had not described the proposed roster change to Mr Brierley in September 2019 as a structural change, adding that at the time of that discussion it had been decided that moving to a 9-day fortnight was the preferred option;

the intent of establishing the working group was to involve the workforce in the decision-making process as he wanted to explore other options, adding that the working group’s discussions were to precede consultation under the Agreement; and

he had not provided the Shiftwork Solutions report or the Options Paper to the working group, nor had he directed Mr Emmett to do so.

[51] In his witness statement 30 Mr Emmett set out the background to the development of the proposal to move to a 9-day fortnight, the working group discussions on the proposal and events following the working group meetings. Key aspects of Mr Emmett’s evidence in this regard included that:

• within about six months of him having commenced work at Icon Water (Mr Emmett commenced work with the Respondent in April 2018) his preference was to align the maintenance teams onto one 9-day roster for productivity, efficiency and team culture reasons;

• around October 2018 he suggested to Mr Smith that consideration be given to better rostering arrangements for the maintenance teams;

• • he and Mr Smith subsequently continued to discuss the issue without reaching a final decision;

• in May 2018 there was a review of rostering arrangements at Icon Water with a business analysis undertaken, adding that he was aware of this as he sat in on a meeting with Shiftwork Solutions around January 2019 with the focus of the meeting the roster for field services teams who were experiencing fatigue issues;

• on 6 March 2019 he sent a written proposal (i.e. the Options Paper) to Mr Smith which included a shift from an 8-day to a 9-day roster;

• ultimately, he and Mr Smith agreed that it was a good idea to go down this path, adding they formed a preliminary view that they would look to implement the change subject to what emerged during consultation;

• on 14 October 2019 he sent an invitation to all maintenance teams setting up a meeting for 16 October 2019 to let them know that the Respondent was looking at aligning the maintenance team rosters and establishing a working group to work through options in relation to the proposed roster change;

• the meeting on 16 October 2019 also discussed the decision to combine the electrical and instrumentation teams under one supervisor, Mr Tom Koenig, with Mr Miller to be offered another supervisory position with no change to his working conditions;

• after that meeting, Mr Smith, a human resources team member and he met with Mr Paxton, a member of the electrical team, to inform him that he would be moved to the water maintenance team as he did not hold an electrical licence;

• on 29 October 2019 he and Mr Smith had a discussion with Mr Domaschenz about getting the working group up and running, with Mr Smith indicating during that discussion that the Respondent’s preference was not to involve the CEPU in the discussions at that stage as it would like to reach agreement directly with the team;

• the working group met on 7, 14 and 21 November 2019, adding that Mr Domaschenz called an end to the third meeting when he said words to the effect that that the parties were going around in circles and getting nowhere;

• at the end of the working group’s third meeting he was forming the view that the working group, among other things, simply wanted to stay on the 8-day roster no matter what;

• on 5 December 2019 the working group reconvened, adding that he informed the working group of Icon Water’s decision to move to formal consultation regarding the alignment of the rosters;

• on 6 December 2019 Mr Smith wrote to the electrical and instrumentation teams regarding the commencement of formal consultation;

• on 19 December 2019 Mr Smith wrote to the electrical and instrumentation teams advising that the consultation period had been extended to 7 February 2020; and

• on 18 February 2020 Mr Brierley, Mr Brown and he met with the electrical and instrumentation teams, with Mr Brierley advising them that Icon Water had decided to put the teams on a 9-day roster from 18 March 2020.

[52] Beyond that, Mr Emmett deposed in his witness statement that he disagreed with Mr Domaschenz that if the electrical and instrumentation teams were moved to a 9-day fortnight they would work and extra 78 hours each year for no extra pay. Mr Emmett further deposed that the electrical and instrumentation teams currently worked 10 minutes less each day than they should and that the additional 10 minutes per day worked by 9-day roster employees equated to an additional 39 additional hours each year which was compensated by the provision of an additional five RDO’s each year.

[53] Among other things, Mr Emmett attested in his oral evidence that:

• he did not have regard to the Shiftwork Solutions report 31 in the discussions regarding the proposal to move to a 9-day fortnight;

• with regard to Mr Domaschenz’s statement:

Icon Water’s Operations area had indicated that it wanted more ‘days’ coverage as opposed to more ‘hours’ coverage, 32

the proposal to move to a 9-day fortnight was always open to consultation, adding that if this was not the case Icon Water would not have established the working group and instead would have gone directly to formal consultation on the proposal, 33 and

he disagreed that Icon Water never had any intention of genuinely negotiating or that the whole process was only ever intended as a show; 34

• he did not recall when he received a copy of the Shiftwork Solutions report;

• while there was commentary in the Shiftwork Solutions report about maintenance rosters he could not say whether the report prompted the proposed move to a 9-day roster for E/I Employees;

• the Shiftwork Solutions report indicated that the 8-day roster was more efficient than a 9-day roster on the basis that 9 hour shifts were more efficient that 8 hour shifts 35;

• neither the Shiftwork Solutions report nor the Options Paper were provided to the working group;

• any move by Icon Water to multi-disciplinary maintenance teams was some six to twelve months away;

• the option of all maintenance teams moving to an 8-day fortnight was an option under consideration;

• the working group did not include representatives of the mechanical fitters team; and

• Mr Domaschenz was correct when he said in his reply statement that Icon Water had not provided the working group with any further information or analysis in support of its proposal to move to a 9-day fortnight and that he disagreed with the material provided by employees in the working group meetings.

Consideration of the issues

[54] Drawing on the CEPU’s submissions there are four issues which need to be determined by the Commission. The issues are:

1. Does the Agreement permit Icon Water to change the E/I Employees’ rosters?

2. Does Icon Water’s proposal to change the rosters constitute a further claim for the purposes of clause 7 of the Agreement?

3. Has Icon Water complied with its consultation obligations under clause 12 of the Agreement?

4. Is the change proposed by Icon Water fair?

[55] I note that it may not be necessary for the Commission to determine all of these questions. For instance, if the answer to the first question above is “no” then the remaining questions become otiose. I turn now to deal with the above questions.

1. Does the Agreement permit Icon Water to change the E/I Employees’ rosters?

[56] This question requires the Commission to interpret the provisions of the Agreement. The Full Court in WorkPac summarised the principles applicable to the interpretation of enterprise agreements as follows:

“The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 at 378 (French J). The interpretation “ … turns on the language of the particular agreement, understood in the light of its industrial context and purpose … ”: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378-9, citing Geo A Bond & Co Ltd (in liq) v McKenzie[1929] AR(NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents 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, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).” 36

[57] The principles relating to the interpretation of enterprise agreements were set out in Berri. While it is not necessary to set out the principles below, suffice to say that the starting point for interpretation of an enterprise agreement is the ordinary meaning of the relevant words. Further, as noted in Berri, the resolution of a disputed construction of an agreement turns on the language of the agreement having regard to its context and purpose.

[58] On the face of the Agreement there is an inconsistency between clause 13.1(b) of the Agreement and clause 2.1 of Schedule A of the Agreement. As previously noted, Icon Water contended that clause 2 of Schedule A only applied to employees who were both classified as Water Industry Operators or Plant and Transport Workers and working in the Maintenance Services Branch in the Treatment Business Unit because of the conjunctive use of the word “and” in the clause. Icon Water further submitted that E/I Employees were neither Water Industry Operators nor Plant and Transport Workers and as such did not meet the first pre-requisite for the provision to apply. The CEPU on the other hand submitted the intent regarding clause 2.1 of the Schedule was for it to merely replicate the wording of clause 13.1(b) of the Agreement and that if Icon Water’s interpretation of the provision was correct then maintenance workers in the Maintenance Services Branch would not be on a 36 hour week and their hours would consequently be 36.75 hours per week. I do not accept the latter contention because, in circumstances where clause 2.1 of the Schedule did not apply to E/I Employees, clause 13.1(b) of the Agreement would apply given that it refers to “employees working in the Maintenance Services Branch in the Treatment Business Unit.” I also note that clause 23.1 of Schedule A which applies to employees in the Electrical Maintenance Business Unit provides that “[e]mployees will work an eight or nine day fortnight totalling 72 standard working hours”, reinforcing the fact that these employees work a 36 hour week. However, I would observe that clause 2.1 of Schedule A is particularly poorly drafted. For instance, it refers to “in the Maintenance Services Branch” in both subclauses (a) and (b), which begs the question what work does subclause (b) actually do as presumably an employee classified as a Water Industry Operator and Plant and Transport Worker in the Maintenance Service Branch would be working in that Branch in the Treatment Business Unit as required by subclause (b). That observation is premised on the assumption that the Maintenance Service Branch referred to in subclause (a) is the same Branch as that referred to in subclause (b).

[59] Returning to the inconsistency between clause 13.1(b) of the Agreement and clause 2.1 of Schedule A, drawing on Principle 1 in Berri, when the text of the Agreement is viewed as a whole, I am inclined to the view that the provision should be read consistent with clause 13(1)(b) of the Agreement for several reasons. First, reading clause 2.1 of the Schedule as advocated by Icon Water results in the perverse situation where the clause results in the provision having narrower application than provided for in clause 13.1(b) of the Agreement. Second, the reference to Schedule A in clause 13.1(b) of the Agreement does not suggest an intention to narrow the scope of that provision. Third, I note that the chapeau to Schedule A of the Agreement refers to “employees working in the Water Operations and Maintenance Groups”, pointing to two distinct work areas/groups of employees. I find further support for my interpretation of clause 2.1 of the Schedule in TWU v AIRC where the Full Court of the Federal Court observed as follows:

“There are many instances of statutory provisions in which, although the cumulative conjunction “and” is used in a list of items, other words in the same provision, in the context of the lists, make it clear that the items in the list are to be read as alternatives.” 37

[60] For the above reasons I have concluded that clause 2 of Schedule A applies to E/I Employees. One practical effect of this is that clause 2.4 of the Schedule prevails over clause 40.2 of the Agreement by virtue of clause 4.1 of the Agreement.

[61] Turning to the issue of whether clause 2.4 of Schedule A precludes Icon Water’s proposed change, the CEPU submitted that the proposal to move to a 9-day fortnight clearly involved changes to start and finish times and as such was contrary to the provision. However, Icon Water contended that the provision did not fix or lock in an individual employee’s existing working hours, adding that its proposed changes would not alter the start and finish times for the 8-day and 9-day fortnight rosters that were in place on commencement of the Agreement. Having regard to Principle 3 in Berri, I consider that a reasonable person would consider clause 2.4 of the Schedule as precluding any change to an “employee’s” starting and finishing times. Clearly, moving from an 8-day fortnight to a 9-day fortnight would involve a change to affected employees finishing time given that the latter entails “eight consecutive hours per day (exclusive of meal breaks)” as specified in clause 2.1 of Schedule A whereas the 9-day fortnight entails 9 hour working days. Beyond this, I note that:

• an examination of the Agreement suggests that where the parties contemplated changes being made to rosters and/or how hours of work were arranged that this was made clear in the Agreement. For example, clause 34.2 of Schedule A which applies to Water Industry Operators (Treatment) provides that “[m]anagement has the right to adjust and revise work rosters as necessary in order to meet operational requirements.” Similarly, clause 2.3 of the Schedule provides scope to alter the spread of hours in clause 2.2 of the Schedule “by mutual agreement”; and

• there is nothing in clause 23 of Schedule A which expressly indicates that employees can move from an 8-day fortnight to a 9-day fortnight (or vice versa for that matter).

[62] The above analysis supports a finding that Icon Water’s proposal that E/I Employees move to a 9-day fortnight is not permitted by clause 2.4 of Schedule A.

[63] In circumstances where I consider that the terms of the Agreement have a plain meaning it is not necessary to have regard to the various predecessor agreements referred to by the parties and Mr Betts in particular.

[64] Further, given my conclusion that the Agreement does not permit Icon Water to implement its proposed roster change, it is not necessary for the Commission to determine the other three issues identified at paragraph [54] above.

[65] With regard to that aspect of the dispute which concerns the move of Messrs Paxton and Miller to alternative roles, Icon Water’s proposal that the parties confer on the matter is a sensible approach in circumstances where there was little material before the Commission regarding that aspect of the dispute. I note that the CEPU in its oral submissions supported that approach.

Conclusion

[66] For all the above reasons, I have determined that the Agreement does not permit Icon Water to implement its proposed roster change for E/I Employees. As to the dispute relating to the move of Messrs Paxton and Miller to alternative roles, the parties should confer on that aspect of the dispute with either party at liberty to seek a relisting of the matter in respect of that issue.

Appearances:

A. Slevin of Counselfor the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
L. Izzo for the Respondent.

Hearing details:

Canberra.
2020
April 7.

Printed by authority of the Commonwealth Government Printer

1 AE425342

2 Exhibit 8 at Annexure “NDS1”

3 Exhibit 3 at paragraph 5

4 Described by Mr Smith as “A new suite of software to assist Icon Water manage and maintain it significant assets or public importance” – Exhibit 8 at paragraph 17

5 Exhibit 8 at Annexure “NDS2”

6 Ibid at Annexure “NDS4”

7 Exhibit 3 at Attachment MM1

8 Exhibit 8 at Annexure “NDS5”

9 Ibid at Annexure “NDS6”

10 [2018] FCAFC 131

11 [2008] FCAFC 26

12 [2017] FWC 1829

13 Exhibit 8 at paragraph 58

14 Exhibits 1 and 2

15 A3661

16 AG819668

17 ActewAGL and Combined Unions Enterprise Agreement 2011 – AG887741

18 Exhibit 8

19 Exhibits 3 and 4

20 Exhibit 7

21 Exhibits 5 and 6

22 Exhibit 7

23 (1984) 295 CAR 188

24 PR958009

25 Exhibit 7

26 [2017] FWCFB 3005

27 Exhibit 8

28 Exhibit 9 at pages 62-68

29 Ibid at page 69

30 Exhibit 10

31 Exhibit 9

32 Exhibit 6 at paragraph 17

33 Ibid at paragraph 30

34 Ibid at paragraph 42

35 Exhibit 9 at page 69

36 [2018] FCAFC 131 at [197]

37 [2008] FCAFC 26 at [17]

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Icon Water Limited