Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Southern Air (Tas) Pty Ltd

[2016] FWC 7266

[2016] FWC 7266

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
Southern Air (Tas) Pty Ltd
(C2016/944)

COMMISSIONER CIRKOVIC MELBOURNE, 10 OCTOBER 2016

Alleged dispute about matters arising under the Southern Air (Tas) Pty Ltd Enterprise Agreement 2015.

Introduction

[1] This decision involves an application brought by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (Applicant) under section 739 of the Fair Work Act 2009 (the Act).

[2] The Respondent is Southern Air (Tas) Pty Ltd (Respondent).

[3] The parties are covered by the Southern Air (Tas) Pty Ltd Enterprise Agreement 2015 (Agreement). The Agreement was approved by the Commission, on 8 February 2016. It has a nominal expiry date of 9 February 2020.

[4] The parties are in dispute as to whether the Agreement provides for employees to accrue a credit towards a rostered day off (RDO) when on paid leave.

Background

[5] The application was listed for conference on 2 June 2016.

[6] At the conference the Applicant was represented by Mr Indi Gunadasa of Hall Payne Lawyers and the Respondent was represented by Mr Luke Golding of Murdoch Clarke. Permission to appear was granted pursuant to section 596 of the Act.

[7] The application was listed for hearing on 10 August 2016. Mr Gunadasa and Mr Golding appeared on behalf of the Applicant and the Respondent respectively.

Issues in Dispute

[8] In summary, the issue in dispute requires an interpretation of the following clauses in the Agreement:

“9 Intent

(a) This Agreement shall be read and interpreted wholly in conjunction with the following Modern Awards –

(i) Electrical, Electronic and Communications Contracting Award 2010

(ii) Plumbing & Fire Sprinklers Award 2010

(b) Where there is any inconsistency between the above-mentioned Awards and this Agreement, the latter shall prevail to the extent of any inconsistency.

(c) The National Employment Standards is a set of minimum employment entitlements and will apply at all times to the employees subject to this Agreement.

….

20.1 Full time employment

‘Full time employee’ means an employee engaged to work an average of 38 hours per week over a four week period.

….

21.1 Pay rates

The pay rates are as prescribed in Schedule 1 for employees who perform at the respective levels prescribed in Schedule 2 and with the exception of the specific allowances payable to employees as specified in this Agreement, are all purpose rates of pay and incorporate the minimum weekly wage, and all Award referenced allowances.

….

29.2 Hours – full time employees

(a) Employees are required to work a 40 hour week, accruing 2 hours’ time off per week. The accrued time off will be taken in the form of a rostered day off (RDO) at an agreed time in accordance with clause 31.

….

31 Rostered Days Off

(a) RDO’s may be taken at such times as may be agreed between the employer and the employees from time to time providing that:

(i) The employer must allow each employee to use his or her RDO’s such that they have four (4) consecutive days off which days include a Saturday and a Sunday at least twice in each year;

(ii) The employer will not refuse an employee’s request to take an RDO on any given day that providing that the employee has given not less than two (2) weeks notice in writing and the taking of the RDO would not result in more than two (2) employees covered by this Agreement being absent from work on that day.

(b) The employer and an employee may agree to substitute a RDO to another mutually convenient day.

(c) In special circumstances, alternate arrangements for settlement of RDO entitlements may be agreed between the employer and an individual employee, such as cashing out RDO’s.

(d) If agreement is reached for the employee to cash out the RDO the 2 hours per week will be paid at the normal time pay rate prescribed in Schedule 1. Any dispute about this is to be dealt with under clause 11.

(e) An employee cannot bank more than five (5) RDO’s.

….

32 Additional Hours
32.1 Definition

‘Additional hours’ means reasonable hours worked in excess of 40 hours per week or hours worked in excess of the daily hours or hours worked outside the span of hours.

….

35 Public Holidays & Holiday Work

(a) Full time employees shall be entitled to the following public holidays without loss of pay: on any day or part-day declared or prescribed by or under a law to be observed generally as a public holiday in Southern Tasmania.

(b) Employees (except casual employees) who normally work on the day a public holiday falls will be paid their ordinary rate of pay, excluding fares and travelling (see pay rates in Schedule 1).

….

36 Annual Leave (Excluding Casual Employees)
36.1 Entitlement

(a) Full time employees accrue four (4) weeks annual leave per annum, and part time employees accrue annual leave on a pro-rata basis.

(b) Untaken annual leave is cumulative.

36.2 Leave payment

(a) Employees, shall be paid the wages they would have received in respect of the ordinary time they would have worked had they not been on leave excluding fares and other onsite allowances (see pay rates in Schedule 1).

(b) In addition employees shall be entitled to a leave loading of 17.5% on four weeks annual leave each year.

(c) Leave loading is not included in the hourly rate.

….

37 Personal/Carer’s Leave (excluding casual employees)

….

37.2 Entitlement

….

(d) Employees, shall be paid the wages they would have received in respect of the ordinary time they would have worked had they not been on leave excluding fares and on site allowances (see pay rates in Schedule 1).

….

39 Jury Service (excluding casual employees)

An employee required to attend for jury service will be entitled to have his/her pay, for the first ten days that the employee is absent for a period of jury service, made up by the employer to equal his/her ordinary pay as for 7.6 hours per day whilst meeting this requirement. The employee will give his/her employer proof of such attendance and the amount received in respect of such jury service.

….

42 Long Service Leave

Employees (excluding Office Personnel) are covered by the provisions of The Construction Industry (Long Service) Act 1997.

….”

[9] Schedule 1 of the Agreement is attached to this decision as Annexure A.

[10] The relevant clauses from the awards are:

Electrical, Electronic and Communications Contracting Award 2010

“24.8 Rostered day off

….

(e) Calculation of weekly wage rates-Rostered day off (RDO) system

Where an employee’s ordinary hours in a week are greater or less than 38 hours and such employee’s pay is averaged to avoid fluctuating wage payments, the following is to apply:

(i) the employee will accrue a credit for each day they work ordinary hours in excess of the daily average;

(ii) the employee will not accrue a credit for each day of absence from duty, other than on annual leave, long service leave, public holidays, paid personal/carer’s leave, workers compensation, paid compassionate leave, paid training leave or jury service; and

(iii) an employee absent for part of a day, other than on annual leave, long service leave, public holidays, paid personal/carer’s leave, workers compensation, paid compassionate leave, paid training leave or jury service, accrues a proportion of the credit for the day, based on the proportion of the working day that the employee was in attendance.”

Plumbing & Fire Sprinklers Award 2010

“29 Ordinary hours of work over a four week work cycle

29.1 The average ordinary hours worked will be 38 per week for a four week work cycle.

29.2 Subject to the provisions of this clause, ordinary working hours will be worked in a 20 day, four week cycle, Monday to Friday inclusive, with 19 days of eight hours each, between the hours of 7.00 am and 6.00 pm, with 0.4 of one hour each day worked accruing to be paid as a rostered day off (RDO) in each cycle.

….

29.7 Rostered days off

(a) The following provisions apply generally in respect of RDOs:

(i) Payment for a RDO will be made from money accrued in accordance with clause 29.2.

(ii) A RDO will be recorded in the time and wages records of the employer.

(iii) Where the scheduled RDO falls on a public holiday under clause 37 - Public holidays the next working day will be taken as the RDO, unless an alternate day in that four week cycle or the next four week cycle is agreed in writing between the employer and the employee.

(iv) Each day of paid leave taken and/or any public holiday occurring during any four week cycle will be regarded as a day worked for RDO and all other accrual purposes.

(v) Any proportion of money accrued towards payment for a RDO will be paid as hours worked for the purpose of calculating entitlements due on termination of employment.

….”

[11] There is no dispute between the parties that the relevant award clauses provide for employees to accrue a credit towards a rostered day off (RDO) when on paid leave.

Jurisdiction

[12] Section 739 of the Act prescribes when disputes under an enterprise agreement can be dealt with by the Commission. Section 739 of the Act is as follows:

“739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

[13] Clause 11 of the Agreement provides a dispute resolution process for the parties to the Agreement. Clause 11 of the Agreement provides:

“11 Dispute Settling Procedures

(a) If a dispute relates to:

(i) a matter arising under the agreement; or

(ii) the National Employment Standards;

(iii) without prejudice to the parties rights under statute or the common law, any other matter relating to the employment relationship.

this clause sets out procedures to settle the dispute.

(b) An employee who is a party to the dispute may appoint a representative for the purposes of the procedures in this term at their cost.

(c) In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the employee or employees and relevant supervisors and/or management.

(d) 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.

(e) The Fair Work Commission may deal with the dispute in two stages:

(i) 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

(ii) If the Fair Work Commission is unable to resolve the dispute at the first stage, the Fair Work Commission may then:

(A) arbitrate the dispute; and

(B) make a determination that is binding on the parties.

Note If the Fair Work Commission arbitrates the dispute, it may also use the powers that are available to it under that Act.

A decision that the 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.

….

(g) The parties to the dispute agree to be bound by a decision made by the Fair Work Commission in accordance with this clause…”

[14] I am satisfied that the Commission has jurisdiction to arbitrate this dispute pursuant to s.739(4) of the Act.

Principles of Interpretation of Enterprise Agreements

[15] The parties agree that the principles that apply to the interpretation of enterprise agreements are settled and the parties are in agreement as to the principles to be applied.

[16] The principles to be applied to the interpretation of enterprise agreements were detailed by the Full Bench of the Commission in The Australian Meat Industry Employees Union v Golden Cockerel Pty Ltd 1 (Golden Cockerel). The Full Bench considered, in great detail, the principles to be applied to the interpretation of enterprise agreements. The Full Bench summarised those principles as follows:

“1. The Acts Interpretation Act 1901 (Cth) does not apply to the construction of an enterprise agreement made under the Act.

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

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

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

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

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

(a) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(b) notorious facts of which knowledge is to be presumed;

(c) evidence of matters in common contemplation and constituting a common assumption.

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

8. Context might appear from:

(a) the text of the agreement viewed as a whole;

(b) the disputed provision’s place and arrangement in the agreement;

(c) the legislative context under which the agreement was made and in which it operates.

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

10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.” 2

[17] I adopt the principles as set out and applied by the Full Bench in Golden Cockerel and the authorities it refers to within.

Submissions

[18] The Applicant submits that the relevant clauses of the Agreement:

• do not provide any guidance regarding the calculation of RDO time when on paid leave; and



• do not define whether an employee accrues RDO time when on paid leave.

[19] Further to the above the Applicant submits that:

• in accordance with clause 9 of the Agreement, the Agreement is to be read and interpreted wholly in conjunction with the relevant awards; and


•  the relevant clauses in the relevant awards specifically state how the RDO system operates:
• that an employee exercising their right to paid leave entitlements will not affect the accrual of RDO time; and



• that paid leave will be treated as a day worked for the purposes of RDO accrual.

• though the Agreement does not define the calculation of RDO when on paid leave, this does not amount to an inconsistency such as to give effect to clause 9(b) of the Agreement.



• upon proper interpretation, the Agreement must be read wholly in conjunction with the relevant awards, which properly define the calculation of RDO time when on paid leave.

[20] In the alternative the Applicant submits that:

• the Agreement is susceptible to more than one meaning when determining whether employees accrue RDO time when on paid leave.



• as the Agreement does not specifically define the accrual of RDO time when on paid leave, the Commission cannot give plain meaning to its interpretation.



• the Commission should find ambiguity or uncertainty exists because:



• the Respondent has interpreted clauses in the Agreement to claim employees do not accrue RDO time when on paid leave; and



• inconsistent terminology and undefined terms support the contention that ambiguity is created when interrelated clauses are to be applied and operate together.



• the term ‘ordinary time’ in the Agreement is ambiguous and susceptible to more than one meaning as:



• clause 29.2 states full-time employees are required to work 40 hour weeks;



• clause 32.1 defines additional hours as hours worked in excess of 40 hours per week;



• full-time employees work 8 hour days; and



• ordinary time is not specifically defined in the Agreement.



• if the language of the Agreement is ambiguous or susceptible to more than one meaning, it relies on evidence of the surrounding circumstances, in particular the evidence of Mr Anderson regarding the history of negotiation for the Agreement.

[21] The Applicant had initially submitted that if the Respondent’s application of the RDO system is adopted, accrual of RDO time and the RDO system would become inoperable. During the hearing the Applicant conceded that the RDO system would not become inoperable. 3

[22] The Applicant further submitted that if ordinary time is 38 hours per week, then employees would automatically be entitled to be paid an overtime rate for 2 hours over the 38 hours (and accrue a credit to a RDO).

[23] The Respondent submits that:

• the Agreement comprehensively and exhaustively sets out what entitlements employees are to receive when they are on paid leave.



• that there is no proper basis upon which the Commission should allow the Applicant to pursue a further claim after the Agreement has been made.



• employees are not entitled to accrue hours towards RDOs unless they physically work those hours.



• the provisions within the Agreement which deal with RDOs are clear and unambiguous.



• on any consideration of the ordinary meaning of the words in the Agreement it is clear that:



• clause 20.1 provides that full-time employees are employed to work an average of 38 hours per week over a four week period;



• clause 21.1 provides that the relevant pay rates are set out in Schedule 1 of the Agreement.



• Schedule 1 clearly sets out that pay rates for ordinary time are based on a 38 hour week.



• clause 29.2 creates an RDO system whereby employees are entitled to work for an additional 2 hours per week.



• clause 31 sets out the mechanics of the RDO system.



• clause 36.2 clearly sets out what benefits employees are to receive when on annual leave, that these are for ordinary hours as per Schedule 1.



• on a proper construction of the Agreement, RDO time accrual is not a benefit an employee is entitled to when on annual leave.



• other specifically tailored terms set out what employees are to receive when they are on paid leave, namely clauses 36.2, 42, 35, 37 and 29, do not include the accrual of RDO time.



• the relevant awards are inconsistent with the Agreement and that in accordance with clause 9(b) the Agreement should prevail.

• that the expressly agreed terms in the Agreement prevail over the standard terms in the awards. 4



• it does not concede there is any need to rely upon extrinsic evidence. However, if the Commission does not accept that, the evidence of Mr Batge is relied upon.



• the Applicant is being opportunistic and pursuing a further claim. That clause 6 of the Agreement precludes either party to the Agreement from pursuing further claims for the duration of the Agreement.

The Evidence

[24] Mr Michael Anderson tendered a witness statement dated 17 June 2016 and gave evidence at the hearing. Mr Anderson is a State Organiser for CEPU Tasmania.

[25] It was Mr Anderson’s evidence that the custom and practice within the industry is that, regardless of time worked, 38 hours is the maximum someone can be employed on a full time basis and that the additional two hours worked goes into an RDO bank. 5

[26] Mr Anderson gave evidence of the bargaining process that led to the current Agreement. Mr Anderson gave evidence regarding Annexure 1 to Exhibit A1, a chain of emails between himself and Mr Golding. It was Mr Anderson’s evidence that the contents of these emails indicated to him that the RDO system would operate as per industry custom and practice, which is that the RDO time would accrue each week regardless of the time worked. 6

[27] Under cross-examination Mr Anderson gave evidence that at the commencement of enterprise bargaining he had provided the Respondent with a template of an agreement to negotiate around. 7 Mr Anderson was shown clause 19.4 of that template agreement8 and conceded that the clause, in particular subsections 2 and 3 were fairly close to the relevant clause in the Electrical, Electronic and Communications Contracting Award 2010. Further Mr Anderson conceded that the Agreement in its final form did not include clause 19.4 of the template agreement.9
[28] Mr Andrew Batge tendered a witness statement dated 5 July 2016 and gave evidence at the hearing. Mr Batge is the managing director of the Respondent.

[29] It was Mr Batge’s evidence that it was always the Respondent’s intention for employees to only accrue RDO hours when they physically worked them. That it was not the Respondent’s intention for employees to accrue time towards RDOs when they are not at work. 10 It was Mr Batge’s evidence that specific provisions were included in the Agreement that set out what employees are entitled to receive when they are on paid leave and that RDO accrual is not one of those entitlements.11

[30] Mr Batge gave evidence of the bargaining process that led to the current Agreement. It was Mr Batge’s evidence that at the commencement of the bargaining process the Applicant provided him with an agreement that they would normally use and that the bargaining proceeded from there. 12 It was Mr Batge’s evidence that the Respondent used a fraction of the template agreement provided by the Applicant, that they designed an agreement that was around the Respondent’s business.13

[31] During cross-examination Mr Batge gave evidence that the employees do not automatically accrue an RDO after 19 days, instead that the employees need to work .4 extra over 19 days to accrue an RDO, further, Mr Batge gave evidence that it may be 23 days before they get a RDO as four of those days may be a holiday. 14 Mr Batge also gave evidence that Annexure 1 to Exhibit A1 was not evidence that he had instructed Mr Golding that the Respondent’s position in respect of RDOs was that employees would accrue RDOs irrespective of whether or not they work.15 Instead it was Mr Batge’s evidence that it was the Respondent’s position that employee’s would accrue RDOs irrespective of the amount of work available.16 Further it was Mr Batge’s evidence that if there was not much work available he would not tell the employees to go home, that he would find them work to do, even if such work was work at the office.17

Plain meaning

[32] It is the Applicant’s submission that as the relevant clauses of the Agreement do not provide any guidance regarding the calculation of RDO time when on paid leave and do not define whether an employee accrues RDO time when on paid leave, that the Agreement is to be read and interpreted wholly in conjunction with the relevant modern awards. Further, that the relevant awards provide for the accrual of RDO hours when on paid leave.

[33] The Respondent submits that the provisions within the Agreement dealing with RDOs are clear and unambiguous and that the Agreement contain a number of specifically tailored terms which set out what employees are to receive when they are on paid leave. This does not include the accrual of RDO hours.

Inconsistency

[34] It is the Applicant’s submission that as the Agreement does not contain a similar, or mirror, provision to those in the relevant awards there is no inconsistency that would give rise to clause 9(b) of the Agreement.

[35] The Respondent submits that the Agreement contains specifically tailored terms that comprehensively deal with the entitlements of employees whilst they are on paid leave. Further the Respondent submits that those terms are inconsistent with the respective clauses in the relevant awards, and that in accordance with clause 9(b) of the Agreement, the latter prevails.

Plain meaning/Inconsistency - finding

[36] The provisions of the Agreement read as a whole and in context contemplate:

• Employees working 40 hours weekly, with two of those hours going towards the accrual of RDOs (clause 29);



• Additional hours of work being over 40 hours (clause 32);



• Cashing out of RDOs pursuant to clause 31(c), to be paid at the ‘normal time’ pay rate prescribed in Schedule 1. Schedule 1 of the Agreement references Pay Schedules for Employees based on a 38 hour week plus all allowances and entitlements payable under the applicable Award from time to time;



• Payment for a public holiday to be calculated by reference to an employee’s ordinary rates of pay had they worked on a given public holiday, again by reference to Schedule 1 (clause 35);



• Payment for annual leave to be calculated by reference to an employee’s ordinary rates of pay had they worked and not been on annual leave, again by reference to Schedule 1 (clause 36);



• Payment for personal/carer’s leave to be calculated by reference to an employee’s ordinary rates of pay had they worked and not been on personal/carer’s leave, again by reference to Schedule 1 (clause 37);



• Cashing out of annual leave, parental and carers leave pursuant to clauses 36.2 and 37.2, to be paid at the ‘normal time’ pay rate prescribed in Schedule 1; and



• Entitlements to jury service based on an employee’s ordinary rate of pay as for 7.6 hours per day (clause 39).

[37] The Agreement contains specific terms as to the entitlements of employees whilst they are on various forms of paid leave and how and when RDO hours are to accrue. These terms do not include any provision for the accrual of RDO hours whilst on paid leave. Whilst there is no definition of ordinary hours, ultimately, the plain meaning of the Agreement read in totality provides for ordinary hours of work to be 38 with an additional 2 hours of work to go towards the accrual of RDOs. The provisions relating to various forms of leave contemplate payment based on ordinary hours of 38 per week.

[38] On the basis of the above, I am satisfied that having regard to the plain and ordinary meaning of the words in the Agreement and applying the principles of interpretation as set out by the full bench in Golden Cockerel, employees of the Respondent are not entitled to accrue hours towards RDOs whilst on various forms of paid leave.

[39] There is no argument between the parties that pursuant to clause 9, the Agreement is to be read and interpreted “wholly in conjunction” with the relevant awards and that in the event of an inconsistency the terms of the Agreement will prevail. There is also no argument between the parties that the relevant awards provide for RDO hours to accrue whilst employees are on various forms of paid leave.

[40] Initially, in support of its position the Applicant submitted that the Agreement read on its own without the clauses of the relevant awards was inoperable. It was conceded at the hearing of the matter that this was not the case. Rather the Applicant submitted that it would become an ineffective mechanism for employees to accrue RDO time in a year. 18

[41] Given my findings above regarding the plain meaning of the Agreement, the terms of the relevant awards are inconsistent with the terms of the Agreement and pursuant to clause 9(b) of the Agreement the terms of the Agreement prevail to the extent of any inconsistency.

Ambiguity

[42] The Applicant’s secondary submission is that the Agreement contains ambiguity. That the ambiguity arises as there is no set definition of ordinary time, instead that ordinary time can be susceptible to more than one meaning and therefore evidence of surrounding circumstances is admissible to aid in the interpretation of the Agreement. The Applicant submits that the extrinsic evidence of the enterprise bargaining process demonstrates that the intention of the parties was that the employees would accrue RDOs irrespective of whether or not they worked.

[43] The Respondent submits that the Agreement is not ambiguous and as such evidence of surrounding circumstances should not be taken into account. Alternatively, if the Commission decided that the Agreement is ambiguous and that surrounding circumstances should be taken into account, that this evidence does not assist the Applicant’s case. The Respondent submits that during the bargaining process the Applicant put forward a template agreement which included a clause that provided for employees accruing RDO hours whilst on paid leave. 19 Further, the Respondent submits the clause was taken out and the Agreement was voted in without the clause.

Ambiguity – finding

[44] Notwithstanding my finding above, I have considered the Applicant’s alternative submissions regarding evidence of surrounding circumstances.

[45] The evidence before me is that both parties to the bargaining process were represented, negotiations were protracted and various versions of the Agreement were exchanged. The most telling feature of the evidence in my mind was that the Applicant did in fact put forward a version of the Agreement that supports its current position, but what was ultimately voted upon was the Agreement minus the very terms the Applicant now seeks to insert.

[46] Evidence was sought to be led of custom and practice in the industry that supports the Applicant’s position. Whilst I accept Mr Anderson as an honest, forthright witness, I prefer the evidence of Mr Batge that the Agreement that was voted upon was the one that had been designed around the Respondent’s business and was not a template.
[47] Evidence as to email correspondence between Mr Anderson and the Respondent’s legal representative was also adduced by the Applicant in support of its case. Mr Anderson said his understanding of that correspondence was that the intention of the Respondent would be that RDO time would accrue regardless of time worked or leave accessed per week. In fact the document annexed to his witness statement provides for accrual of RDOs irrespective of the amount of work available. Mr Batge gave evidence that he would always ensure there was available work beyond the ordinary 38 hours per week, so that 2 hours per week would go towards the accrual of RDOs. Further, he gave evidence that such work may involve administrative and office work.

[48] Even if I were to accept the Applicant’s contention that the Agreement contains ambiguity, on the basis of the above, an objective assessment of the common intention of the parties, is that employees would not accrue hours towards their RDOs whilst on various forms of paid leave.

Conclusion

[49] The relevant provisions of the Agreement set out comprehensively the operation of RDOs and entitlements of employees when on various forms of paid leave. Those provisions do not provide for the accrual of a credit towards RDOs when on paid leave. To the extent that the provisions of the relevant awards provide for the accrual of RDO hours when on paid leave, those terms are inconsistent with the terms of the Agreement and the terms of the Agreement prevail. Applying the accepted principles of interpretation, there is no requirement to go further than the terms of the Agreement. In the event that I am mistaken and there is ambiguity, an objective assessment of the intention of the parties does not support the conclusion that employees are to accrue a credit to RDOs whilst on paid leave.

COMMISSIONER

Appearances:

I Gunadasa of Hall Payne Lawyers, for CEPU

L Golding of Murdoch Clarke, for Southern Air (Tas) Pty Ltd

Hearing details:

2016

Hobart:

August 10

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

 2 Ibid [41].

 3   PN106-108.

 4   Leonie’s Travel Pty Ltd v International Air Transport Association [2009] FCA 280 at 55.

 5   PN142.

 6   PN256-257.

 7   PN290-291.

 8   Exhibit R1.

 9   PN295 & 303-304.

 10   Exhibit R2, paragraph 14.

 11   Exhibit R2, paragraph 15.

 12   PN412-413.

 13   PN415.

 14   PN481.

 15   PN515.

 16   PN515-516.

 17   PN520-521.

 18   PN108.

 19   Exhibit R1.

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