Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Sydney Trains

[2018] FWC 2621

[2018] FWC 2621

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
(C2017/6787)

Rail industry
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 4 JUNE 2018

Dispute about the maximum number of hours that can be accrued in lieu of additional days’ payment for working on a public holiday under clause 29.5 of the Sydney Trains Enterprise Agreement 2014.

The dispute

[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) applied on 8 December 2017 for the Fair Work Commission (the Commission) to deal with a dispute in accordance with the dispute settlement procedure in the Sydney Trains Enterprise Agreement 2014 1 (the 2014 agreement).

[2] The dispute concerns the correct interpretation of the phrase ‘8 days’ in the expression ‘a maximum accrual of 8 days’ in cl 29.5(b) of the 2014 agreement.

[3] Clause 29.5 relevantly provides that:

‘Employees directed to work on public holidays, or the nominated day in lieu of the bank holiday are to be paid:

(a) a loading of 150% of the ordinary hourly base rate of pay for any time worked on such holiday; and

(b) an additional day’s pay at ordinary rates. The Employee may elect to accrue this day in lieu of the additional day’s pay subject to a maximum accrual of 8 days. These accrued days may be used or cashed out on application by the Employee…’

[4] The CEPU contends that Sydney Trains are failing to comply with the 2014 agreement as it relates to employees who work 12-hour shifts.

[5] In particular, the CEPU contends that employees who work 12-hour shifts, who are directed to work on public holidays, and who then elect to accrue a day in lieu of the additional day’s pay, should be able to accrue up to 96 hours (being 12 hours x 8 days), whereas Sydney Trains says that the maximum accrual of what it describes as ‘public holiday leave’ under cl 29 is 64 hours (8 hours x 8 days).

[6] The eight-day maximum accrual has been in a number of predecessor instruments to the 2014 agreement. However, prior to 2015, Sydney Trains (and its predecessors) appear to have made no effort to enforce the maximum accrual of eight days in cl 29.5(b). This appears to have reflected difficulties in payroll administration. The effect was that for a number of years employees carried balances of accrued public holiday days in excess of eight days. 2 However in June 2015, Sydney Trains wrote to employees advising them of its intention to enforce the cap on accruals as provided for in the 2014 agreement. Employees with more than 64 hours accrued were treated by Sydney Trains as having more than eight days accrued and were directed either to provide leave forms setting out their dates for future use of any ‘excess’ accrued days or have any hours in excess of 64 automatically ‘cashed out’.3

[7] The dispute now before the Commission concerns a group of Sydney Trains employees who are Infrastructure Workers, performing maintenance on signals and associated infrastructure. Infrastructure Workers are covered by Sections 1 and 5 of the 2014 agreement. Section 1 has organisation-wide application and Section 5 specifically applies to Infrastructure Workers. Clause 25.2 (in Section 1) states:

‘The ordinary hours of work shall be 76 hours per fortnight (excluding meal breaks) divided into not more than 10 Shifts.’

[8] Clause 25.5 provides that:

‘The pattern of ordinary hours provided for within this Agreement may also be varied by mutual Agreement between the Employer and its Employees as provided for in functional area Agreements.’

[9] Schedule 5E (in Section 5 of the 2014 agreement) allows ordinary hours for Infrastructure Workers to be worked in shifts of between six to 12 hours. In practice, Infrastructure Workers commonly perform 12 x 12 hour shifts and a thirteenth shift of eight hours with four hours of rostered overtime, over a four-week period. 4

[10] On 24 June 2015, the Maintenance Manager, Operations, Phuoc Nguyen, sent an email to employees in the CBD Network Base, which included the following:

‘I just want to confirm for those who have received the letter in the last few days.

Unfortunately we only have 2 options:

1. Do nothing – you will receive cash payment for your accrued public holidays after 3/7/15.

2. Apply for a future leave clearance within the next 6 months. This will need to be approved by myself and your team manager by 1/7/15.

Please let me know if there is any issue or concern.’

[11] The next day, Lucas Dobosz (a Team Leader, Signals working out of the CBD Network Base) sent an email to Mr Nguyen which, inter alia, included the following:

‘I would like to lodge a dispute in regards to the clearing of accrued Public Holiday’s issue.

The first issue is that letters received by my team members are stating that they need to clear down to 64 hours but we work 12 hour shifts and as such 8 shifts for us is 96 hours. In effect capping infrastructure workers on 12 hour shift rosters at 64 hours allows them to only accrue 5 days….’ 5

[12] In his evidence to the Commission, Mr Dobosz said that the issue had never come up before 2015. 6

[13] Mr Dobosz (and the CEPU on his behalf) continued to raise his concerns with management but the dispute was not resolved through discussions at the workplace level. This led eventually to the current application to the Commission in December 2017.

[14] The CEPU submitted that the appropriate questions to be determined by the Commission for the resolution of the dispute include the following:

‘Is Sydney Trains entitled, for the purposes of Clause 29.5 of the agreement to issue a direction to employees who work rosters of 12 hour days that:

i. Caps the maximum accrual of days in lieu of the additional day’s pay to 64 hours; or

ii. Unilaterally requires an employee who has 64 hours of days in lieu accrued to forgo an election to accrue additional hours and to accept payment of the additional days’ pay at ordinary rate for any additional public holidays worked; or

iii. Unilaterally requires an employee to make application to take as leave any days in lieu accrued in excess of 64 hours but less than 96 hours, or suffer having such accrued days cashed out without application by the employee?’

[15] The CFMEU submitted that these questions should be answered in the negative.

[16] The dispute was not able to be resolved at a conciliation conference held on 31 January 2018 and was referred for arbitration in accordance with the dispute settlement procedure in the 2014 agreement.

[17] The CEPU and Sydney Trains filed written outlines of submissions and evidence, and a hearing was held on 26 April 2018. The CEPU was represented by Aaron McKinnon (Industrial Officer) and Sydney Trains was granted permission to be represented by Sally Moten of Lander & Rogers.

[18] Mr Dobosz gave evidence on behalf of the CEPU. Kerupi Autagavaia (Master Rosterer) and Brian Bancroft (Manager Systems Integrity and Analysis) gave evidence on behalf of Sydney Trains.

Evidence

[19] The CEPU’s witness, Lucas Dobosz, gave the following uncontested evidence:

•  He has worked a 12-hour-per-day roster since 1998;

•  When he is rostered to work an ordinary day, he works and is paid for 12 hours;

•  When he works on a public holiday he is paid for the day at 150 per cent of his ordinary rate;

•  When he works on a public holiday and chooses to be paid he is paid an additional day’s pay at ordinary rates for the day – 12 hours of pay.

•  When he elects to accrue this day in lieu of the additional day’s pay he accrues 12 hours. 7

[20] The State Rail Authority (SRA) and the Rail Infrastructure Corporation (RIC) merged in January 2004 to create Rail Corporation New South Wales (RailCorp). Prior to the merger, the majority of employees had been employed by SRA; Infrastructure Workers had been employed by RIC. RailCorp was subsequently split into two entities in 2013, one of which is Sydney Trains. 8

[21] SRA and RIC had different enterprise agreements, with different provisions regarding work on public holidays. In particular, SRA employees were able to accrue a maximum of eight days off in lieu when work was performed on public holidays. SRA employees typically worked eight ordinary hours a day, with 0.4 hours a day accrued to allow a day off every four weeks. By contrast, the enterprise agreement applying to RIC employees stated that:

‘Public holidays are to be paid as they fall and there is no entitlement to accrue public holidays.’ 9

[22] Following the merger of SRA and RIC in 2004, a new enterprise agreement was made (the 2005 agreement).

[23] During the negotiations for the 2005 agreement, the unions sought and obtained RailCorp’s agreement for RIC employees to be able to accumulate eight public holidays like SRA employees could. According to Sydney Trains’ witness, Mr Bancroft, this was reflected in cl 31.4 of the 2005 agreement, which stated:

‘Employees directed to work public holidays can accrue up to a maximum of eight (8) days and may be cleared or cashed out on application of the employee, subject to election for payment or accrual.’ 10

[24] RailCorp’s payroll department put in place public holiday arrangements in September 2005 to deal with former RIC employees. An internal memorandum 11 signed by the Business Services Payroll Manager included the following instructions:

Incident	Claim	Process
Employee rostered to work on a public holiday and actually signs on for duty on the public holiday	Penalty payment for time actually worked at time & half with option to be paid monetary value of the day or accrue the day. Monetary value or accrual is equal to the rostered hours for the shift	Claim to accrue must be shown on timesheet. In absence of election employee will be paid additional time actually worked at ordinary rates (i.e. total time for the day 250%). Entitlement to accrue subject to a maximum accrual of eight days (64 hrs) at the time of working the public holiday.

[25] In June 2006, RailCorp’s General Manager Industrial Relations, Kevin Mackie, appears to have written a letter to the Deputy Assistant Secretary of the Labor Council of NSW, Matt Thistlethwaite (though the copy of the letter that was put in evidence was unsigned), 12 stating:

‘As you are aware:

1. RailCorp agreed to the unions’ request to extend the public holiday accrual provisions for employees covered under the 1999 SRA Enterprise Agreement to employees covered under the RIC 2002 Enterprise Agreement.

2. The provisions contained in the SRA and RIC Enterprise and Functional Agreements were rolled up into the RailCorp etc. 2005 Enterprise Agreement.

Whilst RailCorp has implemented the public holiday accrual for former RIC employees, concerns were recently raised by the RTBU in relation to ensuring the continued application of the provisions that applied to SRA employees in accessing any accrued public holidays, to all RailCorp employees:

Arising out of the above, RailCorp believes it would be in the interests of all parties for it to promulgate the principles that are to apply to all RailCorp employees in relation to accessing any accrued public holidays, as follows:

RailCorp employees:

•  can only accrue a maximum of 8 public holidays in any one year, such accrual will be on the basis of 8/10ths of the fortnightly base hours*…

•  one-tenth of the fortnightly base hours is recognised as a day for the purposes of determining public holiday accrual. 13

…

RailCorp is currently seeking advice on how the provisions of the Agreement can be managed within the Payroll environment. A specific requirement in this solution will be that employees should be able to identify the balances for each year and that accruals will not exceed the 8/10ths principle. At this point in time RailCorp is unable to provide a timeframe on when and if this aspect might be addressed.’

[26] There is no evidence of any reply to this letter to Mr Thistlethwaite, let alone that he agreed to the contents or the course of action proposed by Mr Mackie. 14 Indeed, as noted previously, it appears that RailCorp took no action to implement the cap on the accrual of public holidays.

[27] In 2008, the Rail Corporation New South Wales Union Collective Agreement 2008 was made. Clause 33.5 of that agreement stated:

‘Employees directed to work on public holidays or the nominated day in lieu of bank holiday are to be paid the following:

a) Time and a half for all hours worked on public holidays or the nominated day in lieu between 0000 and 2400; and

b) A further day’s pay at ordinary rates or can elect to accrue that day subject to accruing up to a maximum of 8 days. These accrued days may be used or cashed out on application by the Employee…’

[28] A further enterprise agreement was made in 2010, which included the following cl 32.5:

‘Employees directed to work on public holidays, or the nominated day in lieu of the bank holiday are to be paid:

(a) a loading of 150% of the ordinary hourly base rate of pay for any time worked on such holiday; and

(b) an additional day’s pay at ordinary rates. The Employee may elect to accrue this day in lieu of the additional day’s pay subject to a maximum accrual of 8 days. These accrued days may be used or cashed out on application by the Employee.’

Consideration

[29] The principles relevant to the task of construing an enterprise agreement were summarised by a Full Bench of the Commission in Berri 15 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.’

[30] While the dispute as it came before the Commission concerned the correct interpretation of cl 29.5, at the hearing on 26 April 2018 Sydney Trains made an alternative submission that ‘on a plain reading of the agreement’, the relevant group of workers (that is, Infrastructure Workers working 12-hour shifts) has no entitlement to accrued days at all, because in effect it is not covered by cl 29.5, but by a different clause, cl 148.

[31] Sydney Trains referred to the structure of the agreement, which states at cl 1.1:

‘This Agreement comprises five sections. The provisions included in Section 1 have organisation wide application. The provisions included in Sections 2 to 5 have application to Employees covered by the classifications included in the respective sections (as indicated in each section title.) The provisions in Section 1 are to be read in conjunction with any provisions in Sections 2 to 5 which are intended to have functional application and have therefore been included in other Sections of this Agreement. Where provisions in Sections 2-5 are inconsistent with provisions in Section 1, the provisions in Sections 2-5 will prevail for the Employees covered by those Sections.’

[32] Sydney Trains pointed out that cl 29.5 falls within Section 1 (which has ‘organisation wide application’.) Sydney Trains then referred to Section 5, which deals with Infrastructure Workers. Clause 148, in Section 5, deals with payment for work on a public holiday. It states:

‘Employees who work on a public holiday will be paid 150% in addition to a normal days pay, except where time worked exceeds a normal day, payment for all time worked in excess of the normal day will be paid at 250%.’

[33] Sydney Trains suggested that this meant that Infrastructure Workers who work on a public holiday are paid at a rate of 250% of an ordinary day’s pay, whereas other workers can, because of cl 29.5, either be paid at 250%, or alternatively be paid at 150% and accrue a day off in lieu.

[34] Sydney Trains noted that prior to the merger between RIC and SRA to create RailCorp, Infrastructure Workers (who were employed by RIC) had no ability to accrue public holidays. It conceded that RailCorp reached an agreement with the unions that former RIC employees would henceforth have the option of accruing public holidays, but argued that this was never reflected in the enterprise agreement, which retained the provision that Infrastructure Workers would be paid 250% of an ordinary day’s pay, with no option to be paid at 150% and accrue a day off in lieu.

[35] I consider that if one looks at the text of the agreement by itself, there is some ambiguity about whether Infrastructure Workers can accrue days in lieu of time worked on public holidays. On the one hand, cl 29 (which provides scope for accruing days worked on public holidays) sits in Section 1 and therefore has ‘organisation-wide application’ (thus implying that it covers Infrastructure Workers, at least to the extent that there is no inconsistent provision in Section 5 which deals with Infrastructure Workers). Clause 148 (which does not refer to the option of accruing days worked in public holidays) sits in Section 5. Clause 1 of the agreement suggests that both clauses are to be read ‘in conjunction’ with one another, but that if cl 148 is inconsistent with cl 29, then the former should prevail.

[36] However any ambiguity is clarified by considering the relevant surrounding circumstances. First, Sydney Trains’ submission that the agreement with the unions to allow former RIC employees to access the option of accruing days was not picked up in the wording of the 2005 enterprise agreement (or any of the subsequent agreements) is not true. Whereas the RIC enterprise agreement had a specific clause explicitly stating that public holidays were to be paid as they fell and there was no entitlement to accrue days off in lieu in relation to them, this clause was deleted from the 2005 RailCorp agreement.

[37] Indeed, it was Sydney Trains’ own witness, Mr Bancroft, who said that during the negotiations for the 2005 agreement, the unions sought and obtained RailCorp’s agreement for RIC employees to be able to accumulate eight public holidays in the same way as SRA employees. According to Mr Bancroft, this was reflected in cl 31.4 of the 2005 agreement (the forerunner to cl 29.5).

[38] In addition, all the evidence Sydney Trains tendered about the history of the relevant provisions appears to be based on an understanding that it was a term of the relevant industrial instrument (after the creation of RailCorp) that employees (including former RIC employees) had the option to accrue days, including the letter from Mr Mackie to the Labor Council. I am satisfied that both the employer and the employees covered by the 2014 agreement had a common understanding that Infrastructure Workers were covered by cl 29.5 and accordingly, that they have the option to accrue days in accordance with that provision. The only real dispute between the parties is whether the reference to the eight-day cap can be read as an effective cap of 64 hours.

[39] There is certainly no explicit reference to a cap of 64 hours in the 2014 agreement, or any of its predecessors. The internal memorandum issued by the payroll manager in 2005 puts the words ‘(64 hours)’ after describing the ‘entitlement to accrue subject to a maximum accrual of eight days’, but ‘(64 hours)’ does not appear in the agreement itself.

[40] There is certainly no evidence of a ‘common understanding’ that the cap is 64 hours. The evidence is that no effort was made to impose any cap until 2015, and when it was, the attempt to impose a 64-hour cap was almost immediately put in dispute. Even if one assumes that Mr Mackie’s letter was in fact received by the Labor Council, there is no evidence that the Labor Council (or any other employee representative) accepted the employer’s view of the cap.

[41] When one examines the text in cl 29.5(b), one sees that the words ‘day’, ‘day’s’ and ‘days’ are together used five times. It would be reasonable to assume that if one of these uses implies that a day consists of eight hours (as Sydney Trains contends), then they all would.

[42] However, Sydney Trains accepts that for a 12-hour worker, directed to work on a public holiday, the ‘day’ to be paid at ordinary rates is 12 hours of work. 16 Thus, they accept that the first use of the word ‘day’ in cl 29.5(b) means 12 and not eight hours for someone who works 12 hour shifts.

[43] Moreover, Sydney Trains also allows an employee who works 12-hour shifts who is directed to work on a public holiday and who elects to ‘accrue this day’ to accrue 12 hours to be used at a later date. 17 Thus, Sydney Trains accepts that the second (and presumably the third) use of the word ‘day’ also means 12 hours (and not eight) for an employee who works 12-hour shifts.

[44] The only difference between the parties is that Sydney Trains contends that the fourth (and presumably fifth) use of the word ‘day’ (or ‘days’) in cl 29.5(b) should be read as referring to a day of eight hours, even for someone who works 12-hour days. One would normally give a word the same meaning each time when used several times in one (short) sub-clause – unless there is a very good reason not to do so.

[45] Sydney Trains justified its position on the basis that the reference to eight days in cl 29.5(b) must be given the meaning of a day that it says underlies the whole enterprise agreement, which is 7.6 hours, and that every leave entitlement is calculated on the basis of that 7.6 hours. Sydney Trains said that the entitlement does not change if one’s ordinary hours are rostered over a 12-hour day or an eight-hour day, just as one’s annual leave entitlement does not change if one works 12 hours a day.

[46] Sydney Trains referred to cl 25.2 of the 2014 agreement, which states:

‘The ordinary hours of work shall be 76 hours per fortnight (excluding meal breaks) divided into not more than 10 shifts.’

[47] Sydney Trains submitted that this meant that all employees have 38 hours a week as their base hours, and 7.6 hours a day (76 divided by 10). Leaving aside that 7.6 is not eight (Sydney Trains said that one needs to add 0.4 hours in recognition that employees work eight hours to enable the accrual of a day off in a four-week period), this rather ignores the fact that the clause refers to ‘not more than’ 10 shifts, and not precisely 10 shifts. Thus, there is nothing in cl 25.2 that gives any special status to 7.6 (let alone eight) hours. There is in fact no provision in the 2014 agreement that defines the word ‘day’ as meaning any specific number of hours at all.

[48] Sydney Trains called in support of its position how other leave entitlements in the 2014 agreement are calculated. However, comparisons with annual leave and sick leave are in fact unhelpful to Sydney Trains’ position. In particular, in stark contrast to cl 29.5, the relevant clauses in the 2014 agreement that deal with annual leave and sick leave specifically refer to a maximum expressed in hours. Thus cl 28 and cl 140 both provide that:

‘Employees, other than casual Employees are entitled to 4 weeks (maximum – 152 hours) annual leave each year…’

[49] Similarly, cl 28.4(a) provides that:

‘… sick leave on full pay accrues to an Employee at the rate of 15 days (maximum of 114 hours) each calendar year…’

[50] As the CEPU pointed out, the effect of imposing a 64-hour cap is that workers who work 12-hour shifts can only accrue up to five-and-a-third days (rather than eight days). By contrast, Mr Bancroft gave evidence that, employees who work less than eight hours a day are able to accumulate more than eight days, as the cap is applied on an hourly basis (that is, 64 hours). 18 This suggests that what Sydney Trains has done is replace the eight-day cap (as provided for in the 2014 agreement) with a 64-hour cap, most probably for its own administrative convenience. For most Sydney Trains employees, who work eight-hour days, this makes no practical difference. However, it means that Sydney Trains is not correctly applying the 2014 agreement – and in a way that disadvantages employees who work more than eight hours a day (and, in fact, advantages employees who work less than eight hours a day).

[51] Employees at Sydney Trains who are directed to work on a public holidays are entitled to accrue up to eight days –if a working day for them is a certain number of hours (e.g. 12), then that means they can accrue eight times that many hours (64 for someone who works eight hours a day, and 96 for someone who works 12 hours a day).

[52] This conclusion is consistent with the approach taken by a Full Bench of the Commission in RACV v ASU 19and the Federal Court in CFMEU v Anglo Coal.20

[53] In RACV v ASU, the Full Bench was concerned with the amount of hours which should be deducted from the accrued leave entitlement of a shiftworker working a 21-day roster for each day taken off work for annual leave or personal/carer’s leave. At first instance, Roe C had concluded that 7.6 hours should be deducted from the entitlement, regardless of the length of time the shiftworker was rostered to work on the day taken as leave. The Full Bench upheld an appeal against the Commissioner’s decision on the basis that the deduction from the accrued leave entitlement of the shift work should be equivalent to the duration of the shift or shifts from which leave is taken. While the employees in question worked an average of 38 hours a week, they worked shifts of varying duration, but always in excess of 7.6 hours.

[54] The Full Bench considered how the terms of the relevant agreement related to the provisions in the National Employment Standards (NES) concerning annual leave and personal/carer’s leave. It held, with regard to the latter that:

‘Having regard to the immediate context in which the words are used – namely in relation to leave from work – we consider that a “week” of leave is to be understood as meaning an authorised absence from the working days falling in a seven day period, and a “day” of leave is an authorised absence from the working time in a 24 hour period.’ 21

…

Accordingly we conclude that in the NES provisions of the FW Act, a “week” of annual leave is an authorised absence from work during the working days falling in a seven day period, and a “day” of leave (whether of annual or personal/carer’s leave) is an authorised absence from the working time in a 24 hour period. We reject RACV’s submission that “week” and “day” are to be read as terms of art referring to a specific number of working hours that may not constitute an actual week or day in a given case. We further conclude that the amount of leave deducted from an employee’s leave balance necessarily correlates with the amount of leave taken, so that if a week’s annual leave is taken, a week is deducted from the employee’s accrued annual leave balance, and if a day is taken, a day is deducted from the employee’s accrued annual leave or personal/carer’s leave balance.’ 22

[55] I note that these excerpts were quoted with approval by the majority of the Full Court of the Federal Court in CFMEU v Glendell Mining. 23

[56] In CFMEU v Anglo Coal, Buchanan J was concerned with the construction of an enterprise agreement provision concerning the cashing out of personal/carer’s leave where shifts of three different lengths are worked by employees.

[57] In his judgment, Buchanan J referred to s. 99 of the Fair Work Act 2009:

‘The period of “paid personal/carer’s leave” referred to in s 99, for which an employee must be paid at the base rate of pay for ordinary hours, must necessarily be one or more of the “days” (or part of a day) of leave referred to in s 96. The number of hours normally worked, by for example, an 8-hour day worker and a 12-hour shift worker on a normal or rostered day of work are self-evidently different, by a margin of 50%. Nevertheless, the entitlement to paid leave is not referable to an hourly equivalent; it is expressed in days, and it necessarily follows, I think, that the possibility exists that the statutory entitlement to 10 days leave (and pay) may result in greater hourly entitlement (and overall pay) in some cases than in others.’ 24

Conclusion

[58] Under cl 29.5(b) of the 2014 agreement, employees who are directed to work on public holidays may elect to accrue up to a maximum of eight days, which may be used as days off in lieu or cashed out on application. This cap is expressed in days, not hours. An employee who works 12-hour days is entitled to accrue up to eight days of 12 hours each (that is, 96 hours in total). There is no warrant to impose a 64-hour cap.

[59] Accordingly, Sydney Trains is not entitled under the terms of the 2014 agreement to issue a direction to employees who work rosters of 12-hour days that:

•  caps the maximum accrual of days in lieu of the additional day’s pay at 64 hours; or

•  requires an employee who has 64 hours of time in lieu accrued to forgo an election to accrue additional hours and to accept payment of the additional days’ pay at ordinary rate for any additional public holidays worked; or

•  requires an employee to make application to take as leave any days in lieu accrued in excess of 64 hours but less than 96 hours, or suffer having such accrued days cashed out without application by the employee.

SENIOR DEPUTY PRESIDENT

Appearances:

A McKinnon for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

S Moten, solicitor, with J Laughlin for Sydney Trains.

Hearing details:

2018.

Sydney.

April 26.

Printed by authority of the Commonwealth Government Printer

<AE410462  PR606969>

 1   AE410462 cl 8.

 2   Exhibit 4 [45]; PN272.

 3   Exhibit 1 annexure LD5.

 4   Exhibit 4 [9]; PN253-PN255.

 5   Exhibit 1 [29]-[32], annexure LD5.

 6   PN265.

 7   Exhibit 1.

 8   Exhibit 4 [17]

 9   Ibid [18]-[23].

 10 Ibid [31].

 11   Ibid annexure BB6.

 12   Ibid annexure BB7.

 13   Ibid.

 14   PN747.

 15   AMWU v Berri Pty Ltd[2017] FWCFB 3005.

 16   See, for example, PN704.

 17   See, for example, PN140, PN708-PN716.

 18   PN790.

 19   RACV Road Service Pty Ltd v Australian, Municipal, Administrative, Clerical and Services Union[2015] FWCFB 2881.

 20   Construction, Forestry, Mining and Energy Union v Anglo Coal (Drayton Management) Pty Ltd [2016] FCA 689.

 21   RACV v ASU [2015] FWCFB 2881 [32].

 22 Ibid [82].

 23   Construction, Forestry, Mining and Energy Union v Glendell Mining Pty Limited [2017] FCAFC 35 [133].

 24   CFMEU v Anglo Coal [2016] FCA 689 [10].