Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Wood Group PSN Australia Pty Ltd

[2017] FWC 4565

[2017] FWC 4565

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Wood Group PSN Australia Pty Ltd
(C2017/3517)

COMMISSIONER HUNT BRISBANE, 10 NOVEMBER 2017

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has made application to the Fair Work Commission (the Commission) pursuant to s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute in accordance with the disputes resolution procedure contained in the Wood Group PSN Australia Pty Ltd Electrical and Instrument Greenfields Agreement Lytton Refinery 2016-2019 (the Agreement).

[2] The CEPU is in dispute with Wood Group PSN Australia Pty Ltd (Wood Group) in relation to the proper application of the Agreement. The dispute relates to whether the Agreement allows Wood Group (subject to certain conditions) to introduce an afternoon shift for employees covered by the Agreement.

[3] It is not disputed, and I am satisfied that the Agreement contains a disputes procedure clause allowing for the Commission to resolve a dispute by arbitration if the matter cannot be resolved by mediation, conciliation, expressing an opinion or making a recommendation. 1

Background

[4] Wood Group employs employees who perform electrical and instrumentation maintenance services at the Caltex oil refinery located at Lytton in Queensland (the Site). The Agreement applies to these employees (the Employees). The work has been performed by Wood Group at the Site since 2016.

[5] It is not in dispute that the CEPU is entitled to represent the Employees, and a number of the Employees are members of the CEPU.

[6] In the period between 2009 and 2016, the work was performed by employees of Broadspectrum Australia (Qld) Pty Ltd (Broadspectrum). The CEPU negotiated with Broadspectrum in 2009 for an enterprise agreement to cover the work performed by Broadspectrum employees. The Broadspectrum enterprise agreement allowed for shift work, however it was only worked during periods of temporary shut downs. There was never any ongoing or permanent shift work performed.

[7] In 2011, Wood Group sought to win electrical and instrument maintenance work at the Site, as it was already performing mechanical work at the Site. Wood Group and the CEPU entered into negotiations to make a greenfields agreement to cover future employees of Wood Group at the Site in the event Wood Group was successful in being awarded the contract. Wood Group was not awarded the contract, and while the greenfields agreement was approved by the Commission, Wood Group never employed any employees under that agreement.

[8] In 2016, Wood Group tendered for the work at the Site, and was awarded the Caltex Maintenance Contract. Prior to employing any employees, Wood Group and the CEPU again negotiated a greenfields agreement, which is the Agreement the subject of the dispute. The Agreement is largely modelled on the Broadspectrum agreement.

[9] The Agreement commenced on 8 April 2016 and has a nominal expiry date of 30 March 2019.

Afternoon shift proposal

[10] Employees’ ordinary hours are currently worked between 6:30am and 2:47pm, Monday to Friday. 2 One employee is rostered on-call each week to attend for work outside of the hours of 6.30am to 2.47pm. The Employee who is on-call is paid an on-call allowance and a minimum payment of four hours for each call-in.

[11] Wood Group has determined that having a fixed shift of Employees attend for work in the afternoon will result in significant efficiency gains for Caltex, and accordingly Wood Group proposes to direct six of the Employees to, on an ongoing basis, work the hours of 2:30pm to 10:47pm. The proposed shift is to operate five days per week (Monday to Friday) and will be worked by a rotating roster of six staff on an ongoing basis (i.e. for the duration of the contract with Caltex). Wood Group intends to continually review the roster for effectiveness. This shift will be, if approved, the afternoon shift (the Proposal).

[12] It is noted that the discussion held between Wood Group, the CEPU and Employees prior to the notification of the dispute was for a commencement time of 3.00pm, not 2.30pm. At the time this application was heard by the Commission, the Proposal included a commencement time of 2.30pm to allow a handover between afternoon shift workers and day workers. The 2.30pm commencement time was also proposed to ensure the work could be considered to be shift work pursuant to the definition within the Agreement.

[13] It was acknowledged at the hearing of the application that if the Commission determines that the Proposal is permitted, there might need to be some further consultation required with Employees relevant to the commencement time of the shift being 2.30pm and not 3.00pm.

Hearing

[14] A hearing took place on 23 August 2017 where the CEPU was represented by Mr William Ash, Solicitor of Hall Payne Lawyers, and Wood Group was represented by Mr John Dwyer of Counsel, instructed by Herbert Smith Freehills. Mr Ash and Mr Dwyer were granted leave to appear for their respective clients as I was satisfied, pursuant to s.596(2)(a) of the Act that the matter would be dealt with more efficiently if the parties were represented due to the complexity of the matter.

[15] The following witness statements were admitted into evidence, with the parties consenting that cross-examination of witnesses was not required. Accordingly, none of the individuals who prepared witness statements were required to attend the hearing:

● Mr Chris Lynch, CEPU Organiser;
● Mr Mark Steogen, Legal Counsel – HR/IR;
● Mr Stefan Green, WG Contract Manager; and
● Mr Matthew Morrison, People & Organisation Lead – WA & Asia Pacific.

The dispute to be determined

[16] The dispute turns on whether the Proposal can be accommodated in the Agreement by the operation and meaning of clause 15.1.3 and the combined operation of clauses 15.1A and 18. That is, is Wood Group permitted to implement an afternoon shift on an on-going basis with a continual review of the arrangement for effectiveness?

[17] Clause 15.1A defines shift work as:

‘SHIFT WORK

15.1A Definition

For the purposes of this clause:

Shift Work shall mean work done by separate relays of employees working recognised hours, preceding, during or following the ordinary working hours. To avoid any doubt employee’s working outside the ordinary span of hours whose work is NOT preceded or followed by another employee/s is not considered to be working shift work.

Afternoon Shift means any shift finishing after 6.00pm and at or before midnight.

Continuous Shift Work means any work carried on with consecutive shifts throughout the 24 hours of at least six consecutive days without interruption except during breakdowns or meal breaks or due to unavoidable causes beyond the control of the Company. To avoid any doubt a roster comprising back to back shifts (i.e Day – Afternoon or Night – Day or Afternoon – Night) will be deemed continuous shift work.’

[18] Clause 15.1.3 of the Agreement provides as follows:

‘15.1.3 Subject to the following conditions such shift worker shall work at such times as the employer may require:

a) Apprentices shall not be required to work shift work.

b) Shift work will ideally be done by volunteers but in the absence of sufficient volunteers employers will nominate individuals to fill the roster, having regard to any individuals’ particular circumstances that may preclude that individual working afternoon or night shift.

c) Such ordinary hours shall be worked continuously, except for meal breaks and rest pauses which shall be taken so as not to interfere with continuity of work.

d) An employee shall not be required to work less than 3 hours or more than 5 hours without a break for a meal.

e) Thirty minutes shall be allowed to shift workers each shift for crib which shall be counted as time worked.

f) Employees shall be fully informed of the duration of the shift work requirements and given regular updates during the job on the final completion date.

g) Prior to shift work being introduced the employer shall discuss with the employees the need for shift work to be worked. Further the employee shall be fully informed of the expected duration of the shift work and shall be given regular updates during the currency of such shift work on the continued requirement to work shift work.

h) Shift work must be 5 rostered shifts. In the case of broken shifts (i.e. less than 5 consecutive rostered shifts) the rates prescribed shall be the same as the overtime rates in this agreement, for the actual time worked on the shift only.’ (emphasis added)

[19] Clause 18 of the Agreement states:

‘18.1 Payment for Working Overtime

18.1.1 For overtime hours worked outside ordinary hours Monday to Friday the rates of pay shall be time and a half ordinary time rates for the first two hours and double ordinary time rates thereafter, such double time to continue until the completion of the overtime work.

18.1.2 Except as provided in this subclause or subclause 18.3 hereof in computing overtime each day’s work shall stand-alone.

18.1.3 For the purpose of this clause ordinary hours shall mean the hours worked in accordance with clause 14 or 15 of this Agreement.

18.1.4 Where an employee is required to work overtime on the day, and the request is made after the last schedule break of the working day, then the overtime will be considered and paid as call back (clause 18.4).’

CEPU’s submissions

[20] The CEPU submitted that pursuant to the definition of shift work in clause 15.1A, the Proposal would not satisfy the definition, as the Proposal only requires the performance of work during the day shift and the afternoon shift. While the afternoon shift would be preceded by the day shift, Employees working the afternoon shift would not be ‘followed’ by another Employee given there would be no work performed from 10.47pm – 6.30am.
[21] Further, the CEPU submitted that clause 15.1.3 clearly imposes binding obligations on Wood Group as follows:

(a) prior to the introduction of shift work, to discuss with employees the need for shift work to be worked;

(b) prior to the introduction of shift work, to fully inform employees of the expected duration of the shift work;

(c) to keep employees updated during the currency of the shift work on the continued requirement to work shift work;

(d) to keep employees fully informed of the duration of the shift work requirements; and

(e) to give regular updates during the job on the final completion date (of the shift work).

[22] The CEPU contended that part of the obligations on Wood Group as set out above is for them to provide a start and finish date for any shift work. It was submitted that Wood Group would not meet its obligations under the Agreement, and contravene s.50 of the Act (that being that a person must not contravene a provision of an enterprise agreement), if it did not specify a completion date for the shift work.

[23] The CEPU submitted that clause 15.1.3 provides for a scheme for the introduction of temporary shift work arrangements once Wood Group’s need for that work is discussed with the Employees. During the temporary shift work arrangements, Wood Group is required to keep the Employees fully informed of any changes to the duration (and completion date) of the shift work arrangements. It was submitted that it follows that Wood Group is not permitted to direct Employees to work shift work on a permanent basis, or on Wood Group’s contention, on an ‘ongoing basis continually reviewed for effectiveness’.

[24] The CEPU submitted that the regime above contains binding obligations and is not merely aspirational. 3

The language and ordinary meaning

[25] The CEPU cited authority in Amcor Limited v Construction, Forestry, Mining and Energy Union 4 to the effect that the language of the Agreement, as ‘understood in the light of its industrial context and purpose’, is the correct approach to questions of construction. The CEPU further quoted dicta of Madgwick J in Kucks v CSR Limited5 that ‘narrow or pedantic approaches to the interpretation are misplaced’.

[26] The CEPU submitted that the language of the Agreement is evident in its purpose that shift work is to be a temporary arrangement with a set start and finish date, to accommodate the employer’s specific need for employees to work those hours. The ordinary meaning of the words in Clause 15.1.3, subclause (g), ‘prior to shift work being introduced… the employee shall be fully informed of the expected duration of the shift work’ (quoted in full above) was contended by the CEPU to preclude any interpretation that might allow shift work to be implemented permanently or on an ongoing basis.

[27] The point was elaborated upon in the reply submissions from the CEPU. The CEPU examined the words in Clause 15.1.3(f), ‘given regular updates during the job on the final completion date’, on the premise that the operative words in the clause are ‘job’ and ‘final completion date’. The CEPU contended that the term ‘job’ in this context pertained to its colloquial meaning of a specified task or project, and that this was understood by the negotiating parties. In addition, it was submitted that the singular usage of ‘the job’, as distinguished from ‘jobs’, was a deliberate reference to the finite nature of the work. The words ‘completion date’ indicated that the ‘job’ has a contemplated finish date.

The context

[28] The CEPU submitted that it was an undisputed fact that when the Broadspectrum agreement was in operation, and upon which the Agreement the subject of this application is largely mirrored, shift work was utilised only during finite periods of shut-down. This submission was disputed by Wood Group in their oral submissions, who posited that the clause encompasses a broader range of possible applications. 6

[29] The Broadspectrum agreement was appended to the statement of Mr Chris Lynch. It was his evidence that the shift work provisions were intended only to cover shut down periods as a temporary measure, and that this was how the effect of the provisions were implemented. Subsequent changes to the Broadspectrum agreement when it was renegotiated did not include the shift work provisions or have any effect on their operations. Mr Lynch also deposed that he was contacted by Mr Mark Steogen from Wood Group ‘to negotiate a greenfields agreement that was on the same terms as the 2014 Broadspectrum Agreement.’ Alterations proposed during the negotiation period did not include any change to the shift work provisions.

[30] In their reply submissions the CEPU relied upon the contextual and historical reasons set out above to resolve any ambiguity in the Agreement should the Commission find that there is ambiguity in the Agreement. The CEPU stated their reliance on the statement of Chris Lynch to clarify the ambiguity, and it was submitted that the intention of the negotiating parties in relation to the shift work provisions was to preserve the status quo.

[31] The CEPU also posited that the operation of Clause 15.1.3 is contextualised by Clause 14 – Hours of Work and Clause 18 – Overtime, and given definition by Clause 15.1A. The hours of work clause prescribes ordinary hours of work to be between 6.00am and 6.00pm, Monday to Friday. The definition of ‘shift work’ refers to ‘work done by separate relays of employees working recognised hours, preceding, during or following the ordinary working hours’ and specifically excludes work done by an employee outside the ordinary span of hours not preceded or followed by another employee.

[32] In their submissions, the CEPU argued that the ‘afternoon shift’ proposed by the employer – between the hours of 3.00pm and 10.47pm – was not shift work as defined in the Agreement, because the hours currently worked were from 6.30pm to 2.37pm. The ‘afternoon shift’ would therefore not be immediately preceded by nor follow another shift. Wood Group put forward a new proposal, such that the proposed shift would be from 2.30pm to 10.47pm and would therefore satisfy the definition of ‘shift work’.

[33] The CEPU further stated that the overtime clause operated to compensate Employees for hours worked outside the ordinary hours of 6.00am to 6.00pm, for example, from 6.00pm to 10.34pm within Wood Group’s proposed ‘afternoon shift’. It was also emphasised that Clause 14.4 of the Agreement is proscriptive that the ordinary spread of hours is not subject to alteration.

Wood Group’s submissions

[34] Wood Group framed the question to be determined as whether the Proposal is permissible in the context of the conditions imposed by subclauses (f) and (g) of Clause 15.1.3.

[35] Wood Group concurred generally with the background facts as outlined by the CEPU in their submissions but distinguished two points:

a) the new proposal has the afternoon shift commencing at 2.30pm, which satisfies the definition within Clause 15.1A; and
b) that notwithstanding occasional reference to the proposal as ‘permanent’, the true position of the employer is that the arrangement is to be ‘ongoing and continually reviewed for effectiveness’.

[36] In light of the above distinctions, Wood Group noted that it understood the CEPU’s position to be that shift work was to be limited to ‘finite periods during shut downs to enable work to be completed in accordance with the program set by Caltex’. 7 This position was clarified in oral hearing, where the CEPU said that shut downs were an example of finite periods of time for which shift work could be introduced under the terms of the Agreement.8

[37] Regarding the proposed term that the shift work arrangement was to be ‘ongoing’, Wood Group elucidated that this was to mean for the life of the contract between Wood Group and Caltex, which was to end on 30 September 2017 subject to Caltex’s option to renew.

The language and ordinary meaning

[38] Wood Group, like CEPU, sought to rely on the principles of construction articulated in Kucks v CSR Limited, 9specifically emphasising several passages including that ‘ordinary or well-understood words are in general to be accorded their ordinary or usual meaning’. Wood Group in its submissions addressed in detail the recent Full Bench decision in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited10 (Berri) distilling the principles of construction expressed in that case to four questions they considered relevant to the matter at hand:

a) what is the plain meaning of the terms contained in Clause 15.1.3(f) and (g);
b) if that language is considered ambiguous, what are the surrounding circumstances and do they assist with interpretation;
c) to what extent are negotiations between the CEPU and Wood Group helpful; and
d) to what extent does Wood Group’s post-Agreement conduct prior to the proposal serve as evidence of intention?

[39] In response to the first consideration, it was submitted that the Clauses 15.1.3(f) and (g) should be broadly construed, that they are to be read together and that they are the only parts of Clause 15 in dispute.

Duration

[40] Wood Group disputed the CEPU’s interpretation of the use of the words ‘the duration of the shift work’, characterising it, in which the employer has an obligation ‘to provide a start and finish date for any shift work’ as ‘narrow’ and ‘unsustainable’. It was submitted that the reference to ‘duration’ was ‘in the context of an obligation to provide regular updates on the continued requirement to work shift work’. It was contended that such a view can only be understood where there is a tandem reading of subclauses (f) and (g) of Clause 15.1.3.

[41] Wood Group submitted that the Agreement does not expressly limit the period of shift work, and that it is not compelled by Clause 15.1.3 to provide a finish date. Instead, the submission emphasised the part of the clause stating that the work shall be undertaken ‘at such times as the employer may require’; not emphasised, however, was the caveat preceding this phrase, ‘subject to the following conditions’. It was submitted, generally, that the clause contemplated a range of potential workplace scenarios, and should not be limited to the ‘start and finish date’ construction contended by the CEPU.

[42] The submissions consider the definition of ‘duration’, departing from the CEPU’s view that it naturally referred to a finite period, and contended that instead it could apply to an ongoing period. The definitions in Wood Group’s submissions included ‘the length of time anything continues’ and ‘for as long as something takes’. During the hearing, Mr Dwyer suggested that duration could be ‘something without an identifiable end’, 11 and later submitted that the period of shift work would be finite in any event, as, broadly speaking, ‘nothing is going to last forever… at some point it will end’.12

[43] Further or in the alternative, it was submitted that the duration ‘might be as long as the contract lasts with Caltex’. 13 Wood Group made the submission that “the term ‘duration’ contemplates anything but a finish date.

[44] Wood Group further contended that the obligation in Clause 15.1.3(f) only imposes a duty to keep employees on shift work informed of the duration by providing regular updates, rather than an obligation to consult about the continuation of the work. 14 It was submitted that Wood Group would be required to provide updates about the continuation of the work.

[45] In response to the second question framed by Wood Group as to what the surrounding circumstances are and whether they assist with interpretation, the submissions state that ‘the wording of the clause is clear and unambiguous… there is no requirement for the Commission to have regard to other factors’.

[46] Wood Group argued that evidence led by the CEPU in relation to prior negotiations of the pre-existing agreement (the Broadspectrum agreement), from which the Agreement derives is irrelevant, inadmissible and of limited assistance in consideration of the question of construction. Wood Group noted that the Broadspectrum agreement was a separate instrument, and evidence relating to its negotiation is historical in nature rather than contextual. Further, Wood Group asserted that there was no discussion of the operation of the shift work clause during the negotiations of the agreement between it and the CEPU. This is not disputed by the CEPU.

The proper application of the Enterprise Agreement to the dispute

[47] A number of Full Bench decisions of the Commission have outlined the approach that should be adopted in considering the construction and meaning of an enterprise agreement. The most recent statement of the principles was set out in Berri in the following terms:

‘[114] The principles relevant to the task of construing a single enterprise agreement may be summarised 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 aide the interpretation of the agreement. 

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement.

12. 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. 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.’

[48] The Full Bench decision in DP World Brisbane Pty Ltd v The Maritime Union of Australia 15 aids in how an agreement is to be interpreted:

“[31] Importantly, the task of interpreting an enterprise agreement does not involve re-writing a provision in order to give effect to the Commission’s view of what would be fair and just, without regard to the terms of the agreement. As Madgwick J observed in Kucks v CSR Limited:

‘But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.’”

[49] In applying the stepped-out procedure in Berri, the following needs to be done:

(a) An analysis determining the ordinary meaning of the words of clauses 15.1A and 15.1.3 of the Agreement;

(b) A determination as to whether the Agreement has a plain meaning;

(c) A review of the text of the Agreement as a whole;

(d) The Commission must not rewrite the Agreement to achieve what might be regarded as a fair or just outcome;

(e) In determining the objective intention of the parties, the Commission must do so by reference to what a reasonable person would understand by the language used in the Agreement;

(f) The Commission should not adopt an overly technical approach to the interpretation of the Agreement; and

(g) The Commission must not contradict the plain language of the Agreement.

Clause 15.1A – shift work

[50] In order to determine what the definition of ‘Shift Work’ means, regard must also be had for the meaning of ‘Continuous Shift Work’ in the same clause. Continuous Shift Work requires work to be performed across at least six consecutive days on consecutive shifts throughout 24 hours of each day.

[51] Shift Work must therefore be something less than Continuous Shift Work. Under the Proposal, work is to be performed across only five days, and across a span of approximately 16 hours. Ordinary work will not be performed between 10.47pm and 6.30am.

[52] I have had regard to the repeated use of the word ‘or’ within the definition of Shift Work. The word ‘or’ is used to state that relays of employees will work hours preceding, during or following the ordinary working hours. The clause does not state ‘and’. Accordingly, it is contemplated on the plain meaning of the words that employees could commence a shift prior to the span of 6.00am – 6.00pm, during that span, or after. It does not require relays of employees covering all of the hours of the day. If it had been contemplated so, it would have said ‘working recognised hours, preceding, during and following the ordinary working hours.’

[53] Further, there is a qualification that only Employees who perform work outside the ordinary span of hours and are preceded or followed by another Employee are considered to be working shift work. (emphasis added). The Agreement does not state ‘and’, which would result in an afternoon shift Employee being preceded by a day worker, and followed by a night shift worker.

[54] I am satisfied that on the ordinary meaning of the words used in the shift work definition, there is a plain meaning to when the work is to be performed for it to be considered shift work. The work performed by the Employees under the Proposal to work afternoon shift is preceded by day shift Employees. There is no requirement for them to also be followed by a night shift.

[55] The requirement for a shift to be preceded or followed (but not both preceded and followed) is understandably in place to ensure that an employee is not required to commence their ordinary hours at say, 5.00pm, and work through the employee’s ordinary hours without having had any contact with other employees.

[56] In looking at the Agreement as a whole, I am fortified in my views on this issue because of the provisions of continuous shift work, which contemplate the working of ordinary hours across all 24 hours of the day.

[57] I conclude the Proposal (with a commencement time of 2.30pm) does satisfy the definition of Shift Work.

Clause 15.1.3

[58] The relevant subclauses of clause 15.1.3 for consideration are clauses f) and g):

‘f) Employees shall be fully informed of the duration of the shift work requirements and given regular updates during the job on the final completion date.

g) Prior to shift work being introduced the employer shall discuss with the employees the need for shift work to be worked. Further the employee shall be fully informed of the expected duration of the shift work and shall be given regular updates during the currency of such shift work on the continued requirement to work shift work.’ (emphasis added).

[59] To aid in the interpretation of the Agreement, consideration must be given to the ordinary meaning of the following words and phrases:

(a) duration of the shift work;

(b) during the job;

(c) final completion date;

(d) expected duration of the shift work;

(e) currency of such shift work; and

(f) continued requirement.

Expected duration of the shift work

[60] Wood Group submitted that nothing lasts forever. It is taken that Wood Group’s submission is that even though the word duration is used within the Agreement, it does not necessary result in shift work being limited by a set period of time.

[61] The CEPU submitted that inclusion of the word duration does mean that it is a finite period of time.

[62] The word ‘duration’ could be interpreted as being a ‘period of time with an end date’ or it may arguably be an open-ended period. The word is arguably ambiguous or susceptible of more than one meaning and regard may be had to the surrounding circumstances, or other phrases within the remainder of the relevant subclause, to assist in determining whether any ambiguity or uncertainty exists. The context of the word is, however, the first step to be undertaken.

[63] The phrase ‘expected duration of the shift work’ aids in the interpretation of the meaning of ‘duration’. The Macquarie Dictionary definition of ‘expected’ is as follows:

‘Expected

1. verb past tense or past participle of expect.

2. adjective seen as likely to happen; assumed.’

[64] The ordinary meaning to the word ‘duration’ is that it is a measure of time. The Macquarie Dictionary definition is below:

‘Duration

1. noun  continuance in time: *He began to impose suspensions, usually of short duration –frank hardy, 1950.

2.  the length of time anything continues: to impose restrictions for the duration of the games.

3. phrase For the duration,

a. for a long time; for as long as something takes: he realised she might be sick for a long time and that he would have to be there to help for the duration.

b. (with particular reference to World War II) as long as the war continues.’

[65] The phrase ‘the expected duration’ could refer to a period of two weeks or it could be any amount of time. It is clear however that in the context in which it appears, the term ‘duration’ is tied to whatever the length of the period of ‘shift work’ is. In that regard I accept the CEPU’s submission that ‘duration’ is tied to a finite period of time or event, being the period of the shift work contemplated by the employer to be performed.

[66] I determine that the phrase ‘expected duration of the shift work’, in the context in which it appears, has a plain meaning, and is not ambiguous or susceptible of more than one meaning.

Currency of such shift work

[67] The word ‘currency’ in this clause is a reference to a period of time. Wood Group submitted that the words ‘duration’, ‘period’ and ‘currency’ are interchangeable words, and none of them have precise or narrow boundaries. It is Wood Group’s submission that for the duration of a period of work, or a period of work, or during the currency of work, Wood Group would be obligated to provide regular updates as to the requirement to continue work, but it did not therefore mean that the work necessarily must end at some point; it could be ongoing.

[68] I determine that the phrase ‘currency of such shift work’ does have a plain meaning and that is while ever that period of shift work is being performed, that is the duration or life of the shift work. The currency is while the period of work is live. If a period of shift work ends, the currency of the shift work will have expired, and on the commencement of a second round of shift work, the currency is refreshed and begins from the period the second round of shift work is commenced.

During the job

[69] Inquiries were made of the parties during the hearing as to what a ‘job’ means, and what ‘during the job’ means. The following exchange occurred with the CEPU: 16

MR ASH:  It needs to be a job, yes.

THE COMMISSIONER:  Is maintenance a job?

MR ASH:  Yes, in our submission.

THE COMMISSIONER:  The ordinary work that is performed during the day, could that be a job in the afternoon, as well?

MR ASH:  Their every day job is also a job, I suppose, but this is talking about something different.

THE COMMISSIONER:  "The job."

MR ASH:  We say it's colloquial language meaning the task that needs to be – the particular special project or work that needs to be performed and that shift work is required to complete.

THE COMMISSIONER:  Could Caltex inform the respondent that it specifically requests Wood Group - given the trust that it has in the employees performing day work, that it wants them to perform afternoon shift work rather than getting ad hoc contractors in and could that be the job that the respondent is then tasked to do?

MR ASH:  I'm not sure I completely understand the question.  Commissioner, are you asking whether or not Caltex could request that the respondent supply labour for an afternoon shift not using or using the existing employees?

THE COMMISSIONER:  Yes, well, you're asking the Commission, aren't you, to limit the application of this clause?

MR ASH:  No, that's not what I'm doing.  I'm asking the Commission to determine what is the proper application of this clause.

THE COMMISSIONER:  Yes.  You say it should be limited to work such as shutdowns?

MR ASH:  Yes, amongst other things.  I'm saying when you look at the ordinary words of this clause, it is clearly a scheme for the introduction of temporary shift work to do specific things and it is not a clause that allows for permanent implementation of shift work by the respondent.

THE COMMISSIONER:  That's why I'm asking those questions about what does "during the job" at (f) mean.  Could it be something broader than what you are suggesting?

MR ASH:  Not in our submission.  Something broader really could only be can they do so on an ongoing or permanent basis.

THE COMMISSIONER:  Well, I'm putting to you something that might be a middle ground there.  It might be not what exactly the respondent is contemplating.  Could "during the job" mean something other than shutdown and less than permanent shift?

MR ASH:  No, but the introduction of that shift work can vary for particular intense projects, as it has to date, whether that be a one-week intensive maintenance project during a shutdown or a three-month maintenance project during a shutdown.  That type of job is all it can be, but that can be of different duration, is the best way that I can provide my instructions.

THE COMMISSIONER:  Do you say it must be work that is different from the work performed by day workers ordinarily?

MR ASH:  Yes.  We say that the clause clearly contemplates it being in relation to something special, something different; a job that is not performed during normal day work.  I'm instructed that day work maintenance is several jobs and during shutdown it's one specific big job and it's different work.

[70] The following exchange occurred with Wood Group: 17

THE COMMISSIONER:  Well, you have heard the applicant's submissions on what "during the job" might mean and you've heard my questioning of Mr Ash as to might "the job" contemplate a direction from Caltex to provide afternoon shift maintenance.  Do you have any submissions on that or any alternative to that?

MR DWYER:  No, other than to warmly embrace your interpretation of it, Commissioner.  "The job" could be providing services on an afternoon shift.  That could well be "the job".  I don't think the wording "the job" ought to be given the narrow and, frankly, impractical interpretation that's posed by the applicant, particularly in light of the broader terms of subparagraph (g).  It can't be restricted in that way.

It could mean that and it's not inconsistent to say that the two meanings can sit side by side in the context of this clause.  As I said, there are a broad spectrum of possibilities.  The job could be a single task or it could be some emergency issue that needs to be dealt with over an unidentifiable and fixed period of time.  It could be that.  It could also be something a little less defined.  I don't say that either of those interpretations are inconsistent with the wording of this clause.  It's the applicant that does.

[71] The Macquarie Dictionary defines ‘job’ as follows:

‘Job:

1. noun a piece of work; an individual piece of work done in the routine of one's occupation or trade.

2.  a piece of work of defined character undertaken for a fixed price.

3.  the unit or material being worked upon.

4.  the product or result.

5.  anything one has to do.

6.  a post of employment.

7.  enterprise; occupation; industry: the cattle job.

8.  an affair, matter, occurrence, or state of affairs: to make the best of a bad job.

9. Colloquial a difficult task.

10. Colloquial a theft or robbery, or any criminal deed.

11. a piece of public or official business carried through with a view to improper private gain; an instance of jobbery.’

[72] It is clear that the phrase ‘during the job’ may be ambiguous or susceptible of more than one meaning. It could simply mean the Employee performing their ordinary work, or it could mean that it is a special or specific task. Evidence of the surrounding circumstances may assist in determining whether such ambiguity exists.

[73] As discussed with the parties during the hearing, there is no corresponding obligation to discuss with day work Employees how long their ‘job’ is going to be, or the currency of how long they will continue to perform work during the ordinary span of hours. While the Employees performing work during the day have ‘a job’ and perform ‘jobs’, they are not regularly approached and informed as to a final completion date of the work they are performing, with an expectation that at some point it might end.

[74] In viewing the text of the Agreement as a whole, it is evident that the phrase ‘during the job’ means there must be some understanding between the employer and the Employees as to the job that is being performed.

[75] In the context of Wood Group having to keep up communication with an Employee performing shift work for the period (whether a short period or not), by giving regular updates during ‘the job’, I have determined that the Employee must be aware what job they are performing and when it is anticipated to finish. It is necessary for Employees to be informed at the commencement of the shift work and then during the job as to how long the Employee is expected to work shift work.

[76] It is not to say that the job cannot be the Employee’s ordinary work performed on afternoon shift. There must be discussions during the job, and therefore there must be something tangible in the work being performed for it to be so described as ‘the job’.

[77] If the job is anticipated to finish at some point in time in the future, it would be necessary for the employer and the Employees to understand what job the Employees are expected to perform. It could be as broad as Wood Group desired, however at some point during the performance of the work there must be an understanding between the parties as to the work being performed.

Final completion date and continued requirement

[78] The clause requires Wood Group to inform Employees during the job of the final completion date. It was submitted by Wood Group that when read together with the obligation to inform Employees of the continued requirement to work shift work, it does not mean that there can’t be a continuing requirement for shift work. 18 The clause simply requires Wood Group to inform Employees about the continuing requirement to work shift work.

[79] The inclusion of the words ‘final completion date’ is clear and unambiguous. It cannot be ignored, and it requires a positive act – an obligation - of Wood Group to nominate a date on which the shift work will end, or is expected to end.

[80] The Agreement at 15.1.3(f) requires Wood Group to inform Employees as to the final completion date. When read with 15.1.3(g), there is certainly some flexibility that can be afforded while the shift work is being performed as to the continued requirement to work shift work. There is sufficient fluidity when those clauses are read together to allow Wood Group to firstly nominate a final completion date, and if that stated period required an extension or reduction, Wood Group would be at liberty at 15.1.3(g) to inform the Employees of that new final completion date.

Objective background facts

[81] It has not been necessary to have regard to objective background facts to aid in the interpretation of the relevant clauses. I consider that Principles 1 and 7 of the Berri decision at [114] have been sufficient to determine the correct interpretation of the Agreement.

[82] While I have found the word ‘duration’ is ambiguous and susceptible to more than one meaning, at paragraph [66] I have found the phrase ‘expected duration of the shift work’, is not. When the context of the surrounding language is considered, it means for a period of time that does end. I have determined that while surrounding circumstances to aid in the understanding of the construction are permissible, it has not been necessary to have regard to surrounding circumstances.

[83] Similarly, I have determined that the phrase ‘during the job’ may be ambiguous. Having regard to the submissions of Wood Group, particularly at [70], I do not consider it is necessary to limit or narrow what ‘the job’ may be, and accordingly, it is not necessary to have regard to the surrounding circumstances to attempt to unnecessarily narrow the meaning of ‘during the job’.

[84] Importantly, I have not had regard to how Broadspectrum implemented its shift work under very similarly worded clauses, and limited the shift work to periods of shut down or maintenance work only. It is clear on the evidence before the Commission that the CEPU and Wood Group ‘lifted’ or mirrored the Broadspectrum terms when a greendfields agreement was entered into, and no consideration was given to the drafting of the specific clauses referred to in this decision.

[85] I am satisfied that at the time the parties negotiated the greenfield agreement, the CEPU did not seek to limit the use of shift work for what it considered to be defined, shut down work, nor did Wood Group reach a meeting of the minds on that issue. The parties didn’t give specific consideration to the issue, and accordingly, the words of the clause are to be interpreted objectively.

Can Wood Group implement the Proposal?

[86] I determine that Wood Group is unable to implement the Proposal as put to Employees. The shift work identified by Wood Group to be worked must have a nominated final completion date. Currently the Proposal is that the work will be performed on an open-ended basis subject to review. I do not consider that to satisfactorily meet the requirements of the clause to nominate a final completion date.

[87] The obligation in 15.1.3(g) is to fully inform Employees of the expected duration of the shift work. While Wood Group has indicated it is prepared to continue to inform Employees during the performance of work on afternoon shift as to how long it is likely to continue, if there is no nominated final completion date, the utility of informing Employees as to the expected duration of the shift work is of no value at all.

[88] Relevant to the work to be performed by Employees, as stated at [76] and [77], there must be something tangible in the work being performed for it to be so described as ‘the job’. The nomination of the work to be performed, as broad as it may be, would aid Wood Group in demonstrating that there was a distinct piece or collection of work to be performed to demonstrate the ‘need’ for the work to be performed as shift work and not as day work.

Conclusion

[89] I conclude that the Proposal, that being an open-ended afternoon shift, subject to review, cannot be implemented by Wood Group.

[90] In the event Wood Group discussed with Employees the need for shift work to be performed, nominated a final completion date, and in performing the job between when the work commenced and it was anticipated to finish, continued a dialogue to Employees as to the continued requirement to work afternoon shift, I may, prima facie, consider the terms of the Agreement met.

COMMISSIONER

Appearances:

Mr W Ash (Hall Payne Lawyers) for the applicant.

Mr JC Dwyer of counsel (instructed by Herbert Smith Freehills) for the Respondent.

Hearing details:

23 August 2017 in Brisbane.

 1   Clause 10. Avoidance of Industrial Disputes of the Agreement.

 2 Witness statement of Mr Stefan Green at [18].

 3   See for instance, National Tertiary Education Union v La Trobe University [2015] FCAFC 142)

 4 [2005] HCA 10; (2005) 222 CLR 241 at [2] per Gleeson CJ and McHugh J.

 5 (1996) 66 IR 182 at 212.

 6   Transcript PN279; PN308.

 7   Respondent’s Outline of Submissions.

 8   Transcript PN111; PN151; PN174-PN175; PN179; PN181; PN234; PN377.

 9 (1996) 66 IR 182 at 184.

 10   [2017] FWCFB 3005.

 11   Transcript PN307.

 12   Transcript PN308.

 13   Transcript PN342.

 14   Transcript PN333.

 15   [2013] FWCFB 8557.

 16   Transcript PN163.

 17   Transcript PN310.

 18   Transcript PN276.

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