Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Sydney Trains
[2022] FWC 1916
•4 AUGUST 2022
| [2022] FWC 1916 |
| 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
Sydney Trains
(C2021/8785)
| DEPUTY PRESIDENT CROSS | SYDNEY, 4 AUGUST 2022 |
Alleged dispute about matters arising under the enterprise agreement - entitlement to direct apprentices to take annual leave – notice requirements for such direction.
This Decision concerns an application made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU, Applicant) for the Fair Work Commission (the Commission) to deal with a dispute arising under the Sydney Trains Enterprise Agreement 2018 (the Agreement) pursuant to s.739 of the Fair Work Act 2009 (Cth) (the Act) (the Application).
The CEPU filed the Application on 22 December 2021. The Respondent to the application was Sydney Trains (the Respondent). I conducted a conference in the matter the following day, on 23 December 2021.
The parties agreed that the questions to be arbitrated were:
1. Is Sydney Trains entitled to direct apprentices to take annual leave relying on clause 28.1 (g) of the Sydney Trains Enterprise Agreement 2018?
2. What, if any, notice is Sydney Trains required to provide employees when issuing a direction to take leave under clause 28.1(g) of the Sydney Trains Enterprise Agreement 2018?
Clause 28.1(g) of the Agreement provides:
“28.1. Annual Leave
…
(g) The Employer may close down operations in non-operational areas for the purpose of annual leave. In so doing the Employer must provide work for Employees with insufficient leave or allow them to take leave without pay.”
(the Close Down Term)
On 1 February 2022, directions (Directions) were issued for the filing of materials in relation to the agreed questions stated above. Those Directions were as follows:
1. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (the Applicant) is directed to file with the Fair Work Commission, and serve on Sydney Trains (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in support of the application in this matter by 4pm on 1 March 2022.
2. The Respondent is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by 4pm on 5 April 2022.
3. The Applicant is directed to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent's witness statements and documents by 4pm on 19 April 2022.
The parties sought amendments to those Directions, which were granted, and the parties complied with the Directions as amended. In particular,
· On 4 March 2022, the Applicant filed an outline of submissions and witness statements of Ms Tara Koot, Recruitment Officer of the CEPU, and Ms Catherine Maris, Third Year Substation Apprentice of the Respondent;
· On 14 April 2022, the Respondent filed an outline of submissions and witness statements of Ms Rachael Kelly, Manager of Employee Relations for Transport for NSW, Ms Vera Alag, Acting Manager Apprentice of the Respondent, and Mr Dennis Azzopardi, Associate Director Project Operations of the Respondent; and
· On 2 May 2022, the Applicant filed an outline of submissions in reply, and reply statements of Ms Koot and Ms Maris.
The matter was heard on 11 May 2022 (the Hearing). Mr Phillip Boncardo of Counsel appeared for the Applicant, and Mr Michael Mead, solicitor of Kington Reid, appeared for the Respondent. At the hearing, Ms Koot and Ms Maris were cross-examined. The decision to not cross-examine the Respondent’s witnesses involved, at least partially, reliance on a Notice of Agreed Facts filed by the parties during the Hearing.
Background Facts
Arising from the evidence and agreed facts in the matter, the following background facts were apparent:
(a)Apprentices enter into a training contract which sets out certain obligations between the apprentice, Sydney Trains, and TAFE. Apprentices should always be under supervision while performing work. The management of Sydney Trains holds the expectation that they are supervised. Apprentices within a trade are to perform work that is consistent with their trade education.
(b)Apprentices are employed on either a 3-year (Operations Technology/ Telecommunications) or 4-year (all other trades) Temporary Full Time contract. During an apprenticeship, apprentices rotate through different areas, and through areas external to Sydney Trains, so that they can gain relevant skills required for their trade, and so they can gain exposure, at different stages of their education, to different work, work environments, and assets.
(c)The Apprentice Unit is responsible for the management of the apprentices and their progress through their training.
(d)While apprentices are undertaking their rotations, they are required to always be under the direct supervision of a qualified tradesperson in their relevant trade. They cannot work unsupervised. The trade qualified supervisors in the area in which the apprentices are on rotation provide their day-to-day direct supervision. When issues or concerns about conduct or performance emerge, they are raised with the Apprentice Unit. Any project on which an apprentice is working should not be affected by their absence.
(e)The Apprentice Unit is responsible for managing annual leave. The TAFE calendar means that annual leave is usually taken at certain times of the year (between TAFE terms). Also, the timing of other training, or major work events relevant to apprentices’ skill development in their rotation work areas, will affect when leave can be taken. Due to the limited times in the year that apprentices can take leave, they often end up accruing leave from year to year and having “excess leave.” Sydney Trains generally seek to ensure Apprentices take a break for their wellbeing and are of the view that generally, annual leave should be taken during the closedown period.
(f)If all apprentices were, for whatever reason, not able to attend the workplace or a project (as was the case during the 27 December 2021 to 7 January 2022 Shutdown, and at certain points during the COVID-19 Pandemic) the work output should not have been affected.
(g)A decision was made that in 2021-22 the annual close down would apply to the whole of the Apprentice Unit, including all apprentices.
(h)The Respondent had published rosters for apprentices for the months of December and January before 1 December 2021, which included the period 27 December 2021 to 7 January 2022. Prior to 2021, apprentices had their rosters, including annual leave, set in advance and had not previously been subject to an annual close down.
On 4 November 2021 an all-staff email provided a link to a website called “Sydney trains weekly”, which contained a hyperlink on the words “Annual closedown” which led to a webpage. A screen capture of that page is as follows:
(j)It was a specific agreed fact between the parties that the above notification was not pressed as an effective notification of change of shifts.[1] The position of the Respondent was stated in proceedings as follows:
“…it's the respondent's position, and this will be developed in the fullness of the submissions, that the issue as to notification of change of shift simply doesn't arise in the circumstances of the matter, so we would not assert that [the communication of 4 November 2021] stands for anything by way of a notification of change of shift or change of roster.”
(k)On 3 December 2021, Ms Alag, Assistant Manager of Apprentices in Sydney Trains’ Engineering and Maintenance Directorate, sent an email to other Sydney Trains management to the effect that no apprentices were to be rostered between 26 December 2021 and 7 January 2022. That email was forwarded to other managers in Sydney Trains’ network division and eventually to team leaders.
“Subject: Apprentices - not to be rostered Christmas Closedown 26 Dec to 7 Jan
Importance: High
Hi Team,
EMB has a shutdown period due to reduced work, based on this work reduction and lack of available supervision this means that Apprentices will need to take leave.
Please note, no apprentices are to be rostered during the period of 26 Dec to 7 Jan.
Of course, if there are special circumstances the AD’s will need to be consulted prior to an apprentice being rostered.
An email will be going out to all apprentices today.Kind regards,”
[Original Emphasis]
(l)Eight minutes after the above email, Shannon Halbert, Acting Team Manager Electrical Central Coast Territory Network Maintenance of Sydney Trains forwarded that email with the following further content:
“As per below email from both Vera and Dale no apprentices are to be rostered over the period of 26/12/21-7/01/22 unless under special circumstances from the AD….Dale. Please adjust rosters to suit.”
(m)There was some confusion among apprentices about whether the close down would apply to apprentices. On 7 December 2021, Sydney Trains sent out a clarifying email to all apprentices in the following terms:
“Hi Everyone,
TfNSW is having a closedown period Monday 27 December 2021 to Friday 7 January 2022 and consistent with the notice 4 November ( closedown/) we wish to clarify the situation with respect to apprentices. Unless expressly notified to the contrary you will be on leave during the close down period. If you do not have sufficient leave banked please contact your manager who will consider whether there is work that can be allocated to you or if you will need to take leave without pay.
Any apprentice seeking to work during this period will need to seek approval from Vera Alag – Manager, Apprentice by 10 December 2021.
Kind regards,”
(n)From about 7 December 2021 apprentices were directed to take annual leave for the period 27 December 2021 to 7 January 2022, and certain apprentices were required to take annual leave on days they had previously been rostered to work.
(o)There were apprentices who wanted to work and requested an exemption. Some emailed the Apprentice Unit’s central email, though most came through the CEPU. There were some requests by managers in divisions where work was occurring, and where apprentices could be usefully utilised.
(p)All those apprentices who made a request were shared with Sydney Trains management, who reviewed requests and indicated whether the particular apprentice’s circumstances warranted approving those apprentices to work. Where apprentices were approved to work it was either because of their individual circumstances or because their work group had work occurring relevant to their education that they might not otherwise encounter during their rotation with Major Works.
Enterprise Agreement History of Sydney Trains
On 25 November 1992, the State Rail Authority of New South Wales Enterprise Agreement, 1992 was certified (the 1992 Agreement). At this time the State Rail Authority (SRA) operated railway services across New South Wales.
Part IV of the 1992 Agreement contained the State Rail Authority of New South Wales Consolidated Conditions of Employment Award, 1992. Part IV of the 1992 Agreement was divided into the following parts:
(a) Part 1 – General;
(b) Part 2 – Uniform Conditions;
(c) Part 3 – Salaried/ Professional;
(d) Part 4 - Wages Maintenance Grades;
(e) Part 5 – Operations/ Train Crews;
(f) Part 6 – Apprentices; and
(g) Part 7 – Casual/Permanent Part-Time/ Temporary Employee.
The roles covered by part 3 of Part IV of the 1992 Agreement are mostly covered by Part 2 of the current Agreement under section 2 “salaried professionals.”
The roles that were covered by part 5 of Part IV of the 1992 Agreement are mostly covered by section 4 of the Agreement, “Operations”. However, changes have occurred over time, for example, in 2014, NSW TrainLink employees, including regional drivers and on board services became covered by the NSW TrainLink Agreement so were no longer covered by the Sydney Trains Enterprise Agreement 2014.
On 1 January 2004, RailCorp was established as a statutory owned corporation. RailCorp took over functions from State Rail Authority and Rail Infrastructure Corporation.
On 19 July 2005, the Rail Corporation New South Wales Rail Infrastructure Corporation and State Rail Authority of New South Wales Enterprise Agreement 2005 (the 2005 Agreement) was approved. The 2005 Agreement incorporated terms from 65 instruments that applied at Rail Infrastructure Corporation and State Rail Authority, including the 1992 Agreement.
In 2008, the Rail Corporation New South Wales Union Collective Agreement 2008 the (2008 Agreement) was approved. The 2008 Agreement comprised of seven sections.
On 25 November 2010, the RailCorp Enterprise Agreement 2010 was approved (the 2010 Agreement). The 2010 Agreement had six sections. Section 7 from the 2008 Agreement was not part of the 2010 Agreement, as those employees previously covered by section 7 were covered by section 2 of the 2010 Agreement.
On 1 July 2013, Sydney Trains commenced operation, and on 7 October 2014, the Sydney Trains Enterprise Agreement 2014 was approved (the 2014 Agreement). The 2014 Agreement had five sections. Section 6 from the 2010 Agreement was not included in the 2014 Agreement as those employees previously included in section 6 were instead covered by section 2 of the 2014 Agreement.
On 24 April 2018, the (current) Agreement was approved. The Agreement largely reflects the 2008 Agreement, however, a number of sections have been removed and the employees from those sections are covered by Section 2, and there have been changes to various clauses as outcomes of negotiations in 2010, 2014 and 2018.
Relevant Provisions of the Agreement
The structure of the Agreement is such that the conditions which are prescribed within the Agreement are comprised of a series of “Core Conditions” (Section 1) and then a series of supplementary sections (Sections 2 – 5) which have “functional application” to particular work groups covered by the Agreement. Clause 1.1 outlines that Section 1 is stated to have “organisation wide application” however where provisions of Section 2 – 5 are inconsistent with provisions in Section 1, “the provisions of Section 2 – 5 will prevail for the Employees covered by those Sections”.
Apprentices are identified in Clause 16 as a functional group within Section 1. Apprentices are also covered by Section 3 – Wages Maintenance Grades, or Section 5 – Infrastructure Workers/Commercial depending on the location where they are performing their work. Sub-clauses 16.9 and 16.11 provide:
“16.9. Except as herein provided, the conditions of employment that apply to Sydney Trains apprentices, are those provided by this Section 1 and Section 3 of this Agreement.
…
16.11. Notwithstanding the foregoing, an apprentice assigned to work at a location covered by Section 5 of this Agreement, shall for the period of such assignment be covered by all of the conditions of employment prescribed by Section 5 of this Agreement other than those that apply to IW4.2 and above.”
The right to direct the taking of annual leave operates in two contexts under the terms of the Agreement. There is a right that is conditioned on the accrual of excess annual leave (Clause 28.3(d)), and a general right which is prescribed by clause 28.1(g). Clauses 28.1(f) and (g) are as follows:
“(f) Annual leave rosters will be developed and posted no later than 1 September each year.
(g) The Employer may close down operations in non-operational areas for the purpose of annual leave. In so doing the Employer must provide work for Employees with insufficient leave or allow them to take leave with pay.”
Clause 32.1 specifies “operational roles” as follows:
“32.1. The Employer will provide Employees in operational roles, e.g. train crew, station operations, maintenance and infrastructure Employees, with uniforms and where required, protective clothing or equipment. These will be suitable and appropriate to the type of work activity being undertaken.”
Clause 50(a) and (b), in the definitions for Section 2 – Salaried Employees of the Agreement provides:
“DEFINITIONS
For the purposes of this Section:(a) A Non-Operational Employee is an Employee who is employed in a position that is covered under the Non-Operational Classification Structure in Schedule 2A.
(b) An Operational Employee is an Employee who is employed in a position that is covered under;
i. Operational Classification Structure in Schedule 2A; or
ii. the Sydney Trains Classification Structure. Levels 1 - 7 and who is employed as a Shiftworker.”
Clause 52.6, regarding ordinary hours of work for Salaried Employees, provides:
“52.6. Non-Operational Employees, employed on other than Shiftwork arrangements, who agree to commence and/or finish their normal daily hours outside of the ordinary hours will be entitled to the payment of a loading at the rate of 20% where they commence work prior to and 25% where they finish after the ordinary hours for that day.”
Clause 59, regarding broken shifts for Salaried Employees, provides:
“BROKEN SHIFTS
59.1. A broken Shift is one during which an Operational Employee (as defined} is released from duty for other than meal breaks and consists of two (2) parts to be worked between 0600 and 2200 hours.
59.2. Operational Employees working a broken Shift shall be paid a minimum of one hour for any portion of such Shift. If a broken Shift extends beyond a spread of 9 hours on any
day Monday to Friday, they shall be paid a minimum of one day's pay. All time worked
after a spread of 11 hours shall be payable at double time, but such time shall not be
included for the calculation of any other penalty.”
Clause 63.2, regarding excess travelling time for Salaried Employees, provides:
“63.2. The provisions of this clause unless otherwise approved by the relevant Executive
Director shall not apply to:(a) Employees who are employed in a position that is covered under an Operational
Classification Structure in Schedule 2A and whose rate of pay exceeds that
applicable to RC Grade 5E; or(b) Employees to whom Division 5 of this Section 2 applies who are employed in
positions above RC Grade 5; and(c) Employees who work less than 76 hours per fortnight, and whose rate of pay is in
excess of RC Grade 4E or who are employed in positions above RC Grade 4 until
their total hours for the fortnight exceed 76.”
Clause 64.4, regarding travelling time for Salaried Employees, provides:
“The provisions of this clause unless otherwise approved by the relevant Level 2
Manager's approval shall not apply to:(a) Employees who are employed in a position that is covered under an Operational
Classification Structure in Schedule 2A and whose rate of pay exceeds that
applicable to RC Grade 5E; or(b) Employees who are employed in a position that is covered under an Operational
Classification Structure in Schedule 2A and whose rate of pay is in excess of RC
Grade 4E who work less than 76 hours per fortnight, until their total hours for the
fortnight exceed 76; or(c) Employees to whom Division 5 of this Section 2 applies who are employed in
positions above RC Grade 5.”
The objective of Clause 28.1(f) is outlined in Clause 141.3(f) as follows:
“(f) The objective for the allocation of leave in Clause 28.1 (f) (Section 1 -Annual Leave) is to ensure that a minimum of two (2) weeks annual leave can be taken by staff with school age children within a recognised school holiday period and to ensure equity in annual leave rostering.”
There are various consultation provisions in the Agreement. In particular:
Rostering parameters of infrastructure maintenance workers is provided in Clause 141 of the Agreement; and
Local level consultation requirements are outlined at clause 7.3, clause 27.5(b), 141.3(e), and Schedule 5E, clause 2 of the Agreement, as follows:
“7.3. Consultative Arrangements
The Employer will consult with Employees when there is a proposed change that will impact upon the working arrangements of the Employees. Consultation shall be conducted in good faith with reasonable time for the Employees, Union(s) and their members to respond to the proposed changes.
When a change is proposed that will impact upon the working arrangements of Employees, the Employer will· communicate the proposed change to the affected Employees and Employee Representatives. [consultation steps are then outlined]
…
27.5. Consultation [Being Rostering Principles for Shiftworkers]
(b) Variations to roster will be subject to local level consultation prior to implementation and be developed and implemented in accordance with core rostering principles of this Agreement in accordance with sub-clause 27.3. Relevant unions and affected Employees will be advised prior to implementation.
…
141.3(e) The parties acknowledge the variations in business requirements for rostered work across the Employer's business units. These variations need to be
addressed through local level consultation and agreement which addresses business requirements while ensuring compliance with the rostering principles contained in this Agreement.
…
Sch. 5E, Clause 2. Consultation
All Employees are to receive a copy of the roster to which they are being asked to work. To reduce any possible adverse impact of proposed rosters on work groups or
Employee's roster shall be validated after consultation.A draft roster shall be presented to all Employees thirty-five (35) days prior to
commencement of work patterns. Work groups and individuals will have seven (7) days to comment on and resolve any issues.The personal circumstances (including all pre-notified periods of training} of Employees must be taken into account when rosters are drawn up.
There is an obligation on both management and the individual not to unreasonable
constrain availability or to unreasonably fail to taken into account all personal
circumstances. Where accommodation of the circumstances is not possible for key
members (those with specialist or scarce skills) of staff mutual agreement must be
reached between the individual and the rostering manager. If mutual agreement does
not occur, the provisions of clause (e) below will apply.”
Applicant’s Submissions
The Applicant noted that Clause 28.1 of the Agreement deals with annual leave. In sub-clause (g), the permissive verb 'may' is used, and confers a power on the Respondent, but it is a power which is limited to closing down operations in non-operational areas for the purposes of annual leave. That gives rise to consideration of what is meant by “close down operations” and whether what the Respondent did, in giving the direction that it gave on 7 December 2021, constituted a closing down of an operation. Additionally, the closing down must be in a non-operational area for a particular purpose.
The asserted close down was set out in the 7 December 2021, email that Ms Alag sent to the relevant apprentices. The subject matter was “annual close down” and the period 27 December to 7 January was nominated. Ms Alag advised the recipients that Transport for NSW, not the Respondent, was having a close down over the nominated period.
The genesis of the close down direction was the email of 3 December 2021, which referred to the shutdown period being due to reduced work and sets out that “a lack of supervision means that apprentices will need to take leave,” and “No apprentices are to be rostered during the period 26 December to 7 January,” although under special circumstances apprentices could be rostered.
The Applicant submitted the noun “operations” in clause 28.1(g) is an ordinary English word which refers to a particular activity, and the closing down of operations captures the closing down of a particular activity or a particular function in the Respondent's business, including in respect to employees who might perform that particular activity or function. The problem for the Respondent's case was submitted to be that there was in substance no close down of operations performed by apprentices, and so clause 28.1(g) is not engaged.
The Applicant further submitted areas that don't relate to operations are non-operational areas. A non-operational area is a section or part of the Respondent's enterprise that doesn't engage in a particular function or an activity that can be described as an operational activity, such as persons engaged in management and clerical style work, as opposed to those who work on train and station operations, those who are employed in maintenance and infrastructure work, and those are the areas that the apprentices the subject of this dispute are employed in.
The Applicant submits that the textual basis for the construction of “non-operational area” is drawn from:
(a)Clause 32.1 of the Agreement;
(b)Section 2 of the Agreement, which while dealing with salaried employees, is the clearest indication of what the parties objectively intended a non-operational and operational employee to be;
(c)The classification structure in Schedule 2A of the Agreement, which lists non-operational employees as employees employed positions covered by the non-operational classification structure in schedule 2A, whereas an operational employee is employed in a position covered under the operational classification structure in Schedule 2A, or alternatively is a shift worker falling within levels 1 to 7 of the classification structure.
The Applicant accepted that the term “non-operational area” is not defined, but having regard to those contextual matters, the best and most appropriate construction, having regard to in particular to clause 50 and clause 32.1, is that operational areas encompass train crew, station operations, maintenance and infrastructure employees, and non-operational areas are the classifications in schedule 2A.
The Applicant submitted that apprentices working as maintenance and infrastructure employees are not non-operational employees and the direction given to them was beyond power for that reason.
Regarding the first aspect of clause 28.1(g), being whether there was a close down of operations, the Applicant noted that the areas where the apprentices were in fact working were not in actuality closed down. In fact, there were examples of apprentices being rostered on duty and as their managers wanted them to work over the Christmas period as part of the teams to help maintain compliance.
Regarding the Respondent’s reliance on historical agreements, the Applicant noted that there was no decision of the Commission or any Court as to what an operational or non-operational area, or a non-operational employee or a non-operational role may be, and so the history doesn't demonstrate or support the contention that there has been any common understanding reached in relation to any of those terms.
Regarding clause 28.1(f) dealing with annual leave rosters, the Applicant submitted the clause is framed in imperative terms. What clause 28.1(f) does in very clear terms is require that there be a process whereby an annual leave roster is developed and then promulgated, and that all needs to occur by 1 September each year. The Respondent says that, notwithstanding clause 28.1(f), it can nonetheless determine that it was going to close down a particular non-operational area for the purposes of annual leave and direct employees to in effect take annual leave without forewarning, without notice, and without consultation. Such a construction was submitted to be irrational and capricious. Historically there was a requirement for the Respondent to provide a month's notice of an employee's annual leave.
The Applicant submitted that what the historical agreements show, to the extent that the history can be relied upon, is that there was a process and a procedure for annual leave to be notified to employees in advance, and clause 28.1(f) is facilitative of that. The Applicant relied upon the requirement under clause 28.1(f) and it not being followed as determining that, even if the Respondent can rely on clause 28.1(g), that its direction was not lawful and permitted by the Agreement due to the failure to post annual leave rosters by 1 September.
Finally, the Applicant submitted there was no consultation for the purposes of clause 7.3 in relation to the change. Further, regarding infrastructure workers, a draft roster is to be presented 35 days out from the commencement of work patterns. The evidence disclosed that the roster was published prior to December and then it was unilaterally changed contrary to the requirements of schedule 5E, and for that reason the direction was also not authorised by the Agreement.
Respondent’s Submissions
The Respondent submitted that there was a substantial context and history to the relevant clause 28.1(g), and that consistent with uncontroversial principles in relation to enterprise agreement construction, context and purpose can be informed by the industrial history of the requisite terms.
The submission advanced by the Respondent was that with each iteration of agreements since 1992, the meaning and the text of the predecessor agreement was adopted and transposed into the new agreement with the meaning from 1992 having force and relevance throughout the iterations of the agreements. The textual references within the 1992 Agreement that supported their construction is at Part 5, being that there was a clear and distinct identification of an area within the Respondent's business that is an operational area.
The Respondent identified Clause 10.6 of the 1992 Agreement as being the equivalent of clause 28(1)(g) of the Agreement, and submitted that the 1992 Agreement close down rights provision continued to operate irrespective of the fact that there is a clause within the 1996 Agreement dealing with annual leave. What existed in 1992 became reflected within the way in which the Agreement ultimately became segmented, with the core conditions and then the various divisional areas.
The Respondent submitted that clauses 28.1(f) and (g), whilst they exist alongside each other do not inform or restrict each other in the way in which they are intended to operate, and 28.1(f) is not a fetter on 28.1(g) The Respondent noted that clause 141.3(f) of the Agreement stated an objective for that clause 28.1(f), to ensure that a minimum of two weeks annual leave can be taken by staff with school age children within recognised school holiday periods. As a matter of both practical application and common sense, Clause 28.1(f) cannot be seen as a fetter or a restriction on the way in which annual leave can in fact be taken under the Agreement.
The Agreement provides for the ability for rosters to change, and master rosters can be changed with 14 days notice within section 1 of the Agreement. Rosters can change, and annual leave being taken directly intersects with those rosters of when employees are otherwise scheduled to work.
The Respondent accepted there is an implied restriction in relation to how Clause 28.1(g) operates. Any power that is sought to be invoked by the Respondent in relation to a direction for annual close down necessarily needs to be informed by the objectives of the Agreement, and in particular paragraph 2.5 of the Agreement, to ensure that all employees are treated with trust, dignity and concern for their rights and individual needs. But questions of strict notice, such as the 35-day notice period in Clause 2 of Schedule 5E of the Agreement, are not triggered.
The Respondent submitted that the apprentice group was an operations cohort for the purposes of 28.1(g). Ms Alag's evidence was that she is the Apprentice Unit Manager, and the unit comprised around 227 apprentices. There are independent terms within the Agreement at clause 16 that clearly identify apprentices as a cohort, or a group, and so they are an operations area for the purposes of grounding an ability to determine that that unit is not required.
Applicant’s Reply Submission
Regarding the purpose of the shut down, the Applicant noted that the 7 December 2021 email from Ms Alag to the apprentices said nothing about the close down being for the purposes of annual leave.
Regarding rostering of annual leave, the Applicant submitted that Schedule 5E deals with the rostering of work. Schedule 5E is all about when work is rostered, and what occurred in fact with the shut down was work was rostered and then it was unrostered. There was a change to employees rosters. It was not a change which was conducted in conformance with schedule 5E, and the notion that it was permissible because it was a change from work to leave is not sustainable.
The Applicant submitted that clause 28.1(f), as read with clause 141.3(f), is not aspirational, and it is mandatory. It is the Applicant’s submission that the fact of clause 141.3(f) being clear that one of the purposes of the clause is to ensure relevant family time is spent by staff with school age children is not at all inconsistent with the clause being mandatory.
Finally, in relation to the historical agreements, there had been no decision or consideration of any of the provisions that the Respondent has relied upon. Surrounding circumstances, including matters of history, the Applicant submitted, need to be approached with some caution unless they rise to matters of notoriety and matters that employees would have been aware of when making the subject agreements.
Applicable Principles
The principles relevant to the interpretation of enterprise agreements were as expressed by the Full Bench of the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Berri Pty Limited (Berri)[2]. I note that the Applicant and the Respondent agreed that ambiguity arises as the exact phrase “non-operational areas” is not explicitly defined in the Agreement and it is not used elsewhere in the Agreement apart from 28.1. Nor is the obvious inversion, “operational area”, defined or used in the Agreement. As the words of the provision are susceptible to more than one meaning, an ambiguity exists.[3]
The task of enterprise agreement interpretation is directed at finding the common intention of the parties by reference to what a reasonable person would understand the parties intended from the words used in their agreement. The starting point is the ordinary grammatical meaning of the words followed by any contextual indicators. The Full Bench in Berri (at paragraph [114]) found as follows:
“1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i) the text of the agreement viewed as a whole;
(ii) the disputed provision’s place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which it operates.
2. 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.
3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aid the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
(i)evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii)notorious facts of which knowledge is to be presumed; and
(iii)evidence of matters in common contemplation and constituting a common assumption.
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”
Question 1 - Is Sydney Trains entitled to direct apprentices to take annual leave relying on clause 28.1(g) of the Sydney Trains Enterprise Agreement 2018?
(a)Proposed Answers
The Applicant answers question 1 in the negative in circumstances where the company has:
(a)failed to provide a roster incorporating the direction on or by 1 September 2021;
(b)failed, in the case of infrastructure maintenance workers, to apply the rostering parameters in clause 141; and/or
(c)failed to consult at a local level with its employees about the direction for the purpose of clause 7.3, clause 27.5(b), 141.3(e), and Schedule 5E, clause 2 of the Agreement.
The Respondent answers question 1 in the affirmative, and submits the key term within clause 28.1(g), that of “non-operational area” does qualify the right of the Respondent to close down operations to particular areas of its business and, consequently, cohorts of employees. However, the Apprentice cohort unequivocally falls within the ambit of the term.
Question 2 - What, if any, notice is Sydney Trains required to provide employees when issuing a direction to take leave under clause 28.1(g) of the Sydney Trains Enterprise Agreement 2018?
(a)Proposed Answers
The Applicant answers question 2 as follows:
(a)On or before 1 September, for all apprentices, in the form of an annual leave roster; and
(b)No less than 35 days for apprentices covered by Section 5 of the Agreement.
The Respondent answers question 2 by stating there is no notice required under the Agreement. The Respondent submitted that the right to issue the direction to the relevant cohort(s) is a broad right which generally will not be impacted by the terms of the Agreement that prescribe consultation, rostering of annual leave or notice of roster change. That is because, in the main, a requirement to take leave as a result of a close down is not a “change” which triggers those obligations, and/or the relevant obligations are not intended to be a fetter on the specific right conferred within 28.1(g).
Consideration
Question 1 should more accurately ask “Is Sydney Trains in the circumstances entitled to direct apprentices…” Those relevant circumstances are:
(a) A decision was made that in 2021-22 the annual close down would apply to the whole of the Apprentice Unit, including all apprentices. The Respondent advised all of its apprentices by email on 7 December 2021, that the apprentices were required to take leave from 26 December 2021 to 7 January 2022. The Respondent had published rosters for apprentices for the months of December and January before 1 December 2021, which included the period 27 December 2021 to 7 January 2022.
(b) The email of 7 December 2021, was the first effective notice of the direction, 18 days prior to the commencement of the compulsory leave period and more than two months after annual leave rosters ought to have been provided on 1 September 2021.
(c) The Respondent did not engage in local consultation about the change to apprentices’ roster of annual leave. Prior to 2021, apprentices had their rosters, including annual leave, set in advance and had not previously been subject to an annual close down.
(i)Rostering
The right to direct the taking of annual leave operates in two contexts under the terms of the Agreement. There is a right that is conditioned on the accrual of excess annual leave (Clause 28.3(d)), and a general right which is prescribed by clause 28.1(g). Clauses 28.1(f) and (g) are as follows:
“(f) Annual leave rosters will be developed and posted no later than 1 September each year.
(g) The Employer may close down operations in non-operational areas for the purpose of annual leave. In so doing the Employer must provide work for Employees with insufficient leave or allow them to take leave with pay.”
Clause 28.3(d) provides:
“(d) The Employer may roster an Employee to take paid annual leave if the Employee
has accrued, more than 40 days (50 days for Shift Workers/Average Pay Workers)
paid annual leave and the Employer and Employee are unable to reach Agreement
on reducing the leave. The Employer must give an Employee at least 28 days
notice prior to the date the Employee is required to commence the leave.”
The Respondent submitted that the Close Down Term (Clause 28.1(g)) is not qualified in any way by the obligation to roster annual leave in the immediately preceding provision, Clause 28.1(f). I reject that submission and note that the text of the Agreement viewed as a whole, the place and arrangement in the Agreement of Clause 28.1, and the legislative context under which the Agreement and its predecessors were made, all point towards an interpretation requiring the rostering of annual leave.
There is no reason on the face of the Agreement to read paragraphs (f) and (g) of Clause 28.1 other than together. Clause 28.1 is titled “Annual Leave”. Clause 28.1(f) requires in general terms that annual leave rosters be developed and posted no later than 1 September each year. The term is clear and obligatory.
There are no words in Clause 28.1(f) that limit the cohort of employees who benefit from the provision, except that clause 28.1(a) outlines that it excludes casual employees. There is no precondition that employees benefiting from an annual leave roster be already subject to a roster for work.
Further, as noted below, the Respondent submitted that the 1992 Agreement provides historical context for construction of clause 28.1(g) of the 2018 Agreement, as clause 10.6 of the 1992 Agreement is consistent with clause 28.1(g). While I prefer the contextual provisions of the Agreement itself to the provisions of predecessor agreement in interpreting the Agreement, that similarity in text reflects the parties’ intention that the clause be subject to a form of annual leave roster, and I note that clause 10.1 of the 1992 Agreement relevantly provided:
“10.1 An employee shall be given as nearly as possible three months notice of the date of which their annual holidays are to commence.”
Clause 28.1(g) is concerned with closing down operations and allows for employees to take leave without pay or to perform alternate work as part of that closure. Each closure of operations under the Close Down Term must be “for the purpose of annual leave”. I agree with the Applicant’s submission that it stretches credulity to suggest that a prospective closure of operations for the purpose of annual leave is not intended to be the subject of annual leave rosters provided for in the same clause.
(ii)Non-operational Area
Regarding the meaning of the term “non-operational area”, and the asserted unfettered ability to close down operations to particular areas of its business and, consequently, cohorts of employees, I do not consider that Apprentices can be described pursuant to the Agreement as such an area or cohort. I note the evidence that, rather than being an area or cohort, apprentices are adjuncts to specific areas and cohorts, in particular:
(a)Apprentices are always under supervision while performing work.
(b)Apprentices rotate through different areas so that they can gain relevant skills required for their trade.
(c)While apprentices are undertaking their rotations, they are required to always be under the direct supervision of a qualified trades person in their relevant trade. They cannot work unsupervised.
(d)If all apprentices were not able to attend the workplace or a project the work output should not have been affected.
I consider that the proper construction of the term “non-operational area” is informed by the use of similar terms elsewhere in the Agreement. The Agreement distinguishes between two categories of employee classification in the Agreement according to the nature of the work that each category does, expressed variously as an “operational (or non-operational) classification”,[4] “operational role”,[5] and “operational (or non-operational) employee”.[6]
The usage of “major operational locations” in clause 37.8(c) of the Agreement is also significant, as providing contextual basis that the parties intend references to “operational locations” to capture a particular cohort of employees, being those involved in the operation of trains and stations, maintenance of track, rolling stock, and electrical network and the implementation of safety protections at the site of work.
Additionally, Section 2 of the Agreement applies to employees in Schedule 2A classifications and divides those employees into “non-operational employee[s]” and “operational employees” according to the nature of the work performed. None of the Apprentices engaged by the Respondent are in non-operational areas, and so they could not be subject to a direction to take accrued leave pursuant to the Close Down Term.
While the Respondent submitted that there was a substantial context and history to clause 28.1(g), with each iteration of agreements since 1992 having the meaning and the text of the predecessor agreement adopted and transposed into each new agreement with the meaning from 1992 having force and relevance throughout the iterations of the agreements, I do not consider that analysis assisted or guided the interpretation of the stand down term.
As Wheelahan J observed in King v Melbourne Vicentre Swimming Club Inc:[7]
“[126] The significance of history and context as an aid to the construction of awards was referred to by Burchett J in Short v F W Hercus Pty Ltd in another frequently cited passage, at 518 —‘Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history, and to prefer to peer unaided at some obscurity in the language. “Sometimes”, McHugh J said in Saraswati v The Queen (1991) 172 CLR 1 at 21, the purpose of legislation “can be discerned only by reference to the history of the legislation and the state of the law when it was enacted”. Awards must be in the same position.
[127] The authorities relating to the construction of industrial instruments illustrate that context may shed light on the proper meaning to be given to expressions that take their colour from the industrial context. The history of provisions of an industrial instrument may also demonstrate that particular expressions have been the subject of interpretation by the courts or industrial tribunals, which may then be taken to have an accepted meaning when, in the same or a similar context, they find their way into later instruments: Short v FW Hercus Pty Ltd at 517-518. Practices in the relevant industry may provide material context. An illustration is Transport Workers Union v Linfox Australia Pty Ltd [2014] FCA 829; 318 ALR 54, where Tracey J held that evidence about the morning commencement time of work in the transport industry, together with an examination of the history of relevant award provisions, informed the construction of the term ‘day shift’ with the consequence that ordinary day workers were not to be regarded as shift workers for the purposes of the award, and were therefore not entitled to ‘crib time’.
[128] Part of the context in construing an industrial instrument may, in an appropriate case, be a recognition that the instrument may have been drafted by lay persons with a practical bent of mind, with the consequence that the construction of ambiguous terms should favour a sensible and practical industrial result, shorn of narrow legalism and pedantry: see, Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) [2019] FCAFC 59; 269 FCR 262 at [5] (Allsop CJ); Kucks v CSR Ltd at 184 (Madgwick J). There are, however, limits on the extent to which the resolution of questions of construction may be driven by reference to history and context, and a liberal approach to construction, because ultimately what is to be determined is the proper construction of the instrument based on the objective meaning of the text. The Fair Work Act contains provisions that require the Commission to publish its written decisions, reasons, approved enterprise agreements, and variations to modern awards, with the consequence that they are widely available to members of the public: s 168, s 601. There is much to be said for the notion that instruments such as awards should be reasonably capable of being understood and implemented by the participants in the industries to which they apply by reference to the language employed in the instrument itself, without having to investigate and ascertain the pedigree of the instrument in order to identify some latent meaning to be discerned by an analysis of the mental states or purposes of others: see, The Nine Brisbane Sites Appeal at [8] (Allsop CJ). In City of Wanneroo v Holmes at 380, French J stated —‘Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.”
[Emphasis added]
The relevant provisions of the Agreement, and the provisions predecessor agreements, have not been the subject of any interpretation by the Courts or Industrial Tribunals which may then be taken to have accorded them any particular meaning. To the contrary, this matter is the first instance where those provisions are subject to consideration, and so the consistency of provisions historically is of no assistance.
(iii)For the purpose of Annual Leave
The Close Down Term makes clear that the close down of operations in non-operational areas may occur for the purpose of annual leave.
The reason for the close down between 26 December 2021 and 7 January 2022, was clearly outlined in Ms Alag’s email of 3 December 2021, as being because “EMB has a shutdown period due to reduced work, based on this work reduction and lack of available supervision this means that Apprentices will need to take leave”.
The actual purpose of the close down was not for the purpose of annual leave, but due to reduced work and the consequential lack of supervision. Annual leave was the consequence of the shut down, but not the purpose. Accordingly, the close down between 26 December 2021 and 7 January 2022, was not authorised by clause 28.1(g), as that close down was not for the purpose of annual leave.
(iv)Conclusion - Question 1
The Respondent could not direct apprentices to take annual leave from 26 December 2021 to 7 January 2022, because the Respondent failed to:
(a)Provide a roster incorporating the direction on or by 1 September 2021;
(b)Apply the rostering parameters in clause 141 to infrastructure maintenance workers; and/or
(c)Consult at a local level with its employees about the direction for the purpose of clause 7.3, clause 27.5(b), 141.3(e), and Schedule 5E, clause 2 of the Agreement.
(iv)Conclusion - Question 2
The Respondent was required to provide the following periods of notice to employees when issuing a direction to take leave under clause 28.1(g) of the Agreement:
(a)On or before 1 September, for all apprentices, in the form of an annual leave roster; and
(b)No less than 35 days for apprentices covered by Section 5 of the Agreement.[8]
DEPUTY PRESIDENT
Appearances:
Mr P Boncardo, counsel for the Applicant.
Mr M Mead, solicitor for the Respondent.
Hearing details:
2022
May 11
Sydney (via videoconference).
[1] Transcript PN 387 to 398.
[2] [2017] FWCFB 3005 (Berri).
[3] Construction, Forestry, Mining and Energy Union v Linfox Transport (Australia) Pty Limited, Print Q2603, at [30].
[4] See for example, clause 50(a), 50(b), 63.2, 64.4, and Schedule 2A in Section 2 of the Agreement.
[5] Clause 32.1 of the Agreement.
[6] See for example, clause 50(a), 50(b), 52.6, 59 and 65 of the Agreement.
[7] [2020] FCA 1173 at [126] to [128].
[8] See Clause 2 of Schedule 5E of the Agreement.
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