Construction, Forestry, Maritime, Mining and Energy Union v AGL Loy Yang Pty Ltd

[2018] FWC 4874

[2018] FWC 4874

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Construction, Forestry, Maritime, Mining and Energy Union
v
AGL Loy Yang Pty Ltd
(C2018/1301)

DEPUTY PRESIDENT COLMAN MELBOURNE, 10 SEPTEMBER 2018

Application to deal with a dispute – interpretation of agreement

[1] This decision concerns an application made by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) under s 739 of the Fair Work Act 2009 (Act) for the Commission to deal with a dispute in accordance with the dispute resolution procedure in clause 27 of the AGL Loy Yang Enterprise Agreement 2017 (Agreement).¹

[2] AGL Loy Yang Pty Ltd (AGL) operates a power station in the La Trobe valley east of Melbourne. It employs employees whose employment is covered by the Agreement, including employees who are members of the CFMMEU. The present dispute concerns the interpretation of clause 7.1 of the Agreement, which deals with the eligibility of employees for overtime.

[3] The application was listed before me for conference. The matter remained unresolved, and the parties agreed that the application should proceed to arbitration. It was common ground, and I agree, that the Commission is authorised to arbitrate the dispute under clause 27 of the Agreement. I issued directions for the filing and service of submissions and any evidentiary material. The parties complied with these directions. The matter was then listed for hearing before me on 26 July 2018.

[4] The parties agreed that the dispute could be resolved by the Commission determining the following question:

“The last paragraph in clause 7.1 of the AGL Loy Yang Enterprise Agreement 2017 relevantly provides:

To be eligible for overtime, a shift worker who has taken personal leave on the immediately preceding rostered shift must have provided a medical certificate for the relevant absence.

Does the term ‘the immediately preceding rostered shift’ in the last paragraph of clause 7.1 of the AGL Loy Yang Enterprise Agreement mean:

•  the shift on the roster immediately before the shift on which the overtime is to be worked, whether or not the employee was rostered on or rostered off that shift; or

•  the last shift on the roster that the employee was rostered to work.”

[5] The CFMMEU contends that the first of the two alternative meanings is correct. AGL submits that the second meaning is correct.

[6] Shift patterns at AGL generally consist of day shifts or a combination of day and night shifts. A common feature of these shift patterns is that employees are rostered off for five consecutive days. The present dispute focuses particular attention on the application of clause 7.1 in circumstances where a shift worker takes personal leave without providing a medical certificate on a shift immediately before the start of the five day break. It is convenient to put in mind the situation of an employee whose last rostered shift before the five day break is a night shift, and who takes personal leave on that shift without providing a medical certificate. On the union’s interpretation, the effect of clause 7.1 is that the employee is ineligible for overtime only on the following day shift. On the company’s construction, the employee is ineligible for overtime for the duration of the five day break.

[7] A critical question is therefore whether the words ‘rostered shift’ in clause 7.1 mean a shift that the employee is rostered to work, as the company contends, or simply a shift that is rostered for anyone to work, as the union submits.

Submissions of the parties

[8] The CFMMEU contends that clause 7.1 has a plain meaning and is not ambiguous or susceptible of more than one meaning. It says that the words ‘the immediately preceding rostered shift’ mean the shift that immediately precedes the shift on which the overtime is to be worked. It does not matter whether the employee in question is rostered to work that shift. All of the ten shifts falling during an employee’s five day break (that is, two days shifts and two night shifts) are ‘rostered shifts’, even though that employee does not work those shifts.

[9] The union says that the ordinary meaning of the words ‘rostered shift’ is simply a shift that is rostered. A roster is the arrangement of hours of work for employees over a period of time, also described in the Agreement as a ‘roster cycle’. 2 A roster comprises a number of ‘shifts’, which assemble the hours on the roster into distinct periods of time, and may or may not be contiguous. Thus a ‘rostered shift’ means a shift (a period of time) on the roster (the arrangement of working hours for employees). The CFMMEU submits that shift workers are either rostered to work or rostered not to work. It says that this distinction is reflected in various terms of the Agreement that refer to employees being ‘rostered-on’ or ‘rostered-off’; and that for each employee, the roster comprises a number of rostered-on shifts and rostered-off shifts.

[10] The union submits that ‘the immediately preceding rostered shift’ in clause 7.1 is simply a rostered shift, and that the clause is not concerned with whether the employee worked that shift. This is underscored, it says, by the use of the definite article instead of a possessive pronoun - the immediately preceding rostered shift, rather than his or their immediately preceding shift.

[11] AGL contends that the reference to the immediately preceding rostered shift, read in context, must mean the particular employee’s immediately preceding rostered shift. The clause is concerned with the circumstances of a shift worker who has taken personal leave without providing a medical certificate, and the reference to ‘rostered shift’ is affected accordingly.

[12] The company submits that the union’s interpretation would give clause 7.1 almost no work to do, because it would only apply to the shift immediately following the shift on which personal leave is taken. It says that it would be highly unusual for an employee to be requested to work overtime on a shift immediately after a rostered 12 hour shift. However, the union provided examples of where this had occurred.

[13] The union acknowledges that its construction gives clause 7.1 a more limited application than does the company’s interpretation. It says that the company’s interpretation would have a very broad application, whereby the period of ineligibility for overtime could extend well beyond 5 days. For example, if the employee concerned was absent on annual leave for his or her next round of 4 shifts, followed by another 5 day period off, the employee would be ineligible for overtime for 14 days.

[14] Nevertheless, both parties acknowledged that the question of which is the correct interpretation of a provision in an enterprise agreement is not to be resolved simply by reference to the outcome that the respective interpretations produce.

Consideration

[15] The principles that apply to the interpretation of an enterprise agreement were summarised by a Full Bench of the Commission in AMWU v Berri Pty Ltd, 3 drawing on the earlier Full Bench decision in AMIEU v Golden Cockerel Pty Ltd.4 The interpretation 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 dispute over the interpretation of an enterprise agreement will turn on the language of the agreement, having regard to its context and purpose. Context might appear from the text of the agreement as a whole, the disputed provision’s place and arrangement in the agreement, and the legislative framework under which the agreement was made.5 Further, the task of interpreting an enterprise agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome.

[16] Clause 7.1 could have been more clearly drafted, and it is understandable how the present dispute has arisen. Nevertheless, the clause is not ambiguous. It has a plain meaning, albeit one that is only revealed with some analytical effort. That meaning is that a shift worker who has taken personal leave on his or her last shift without providing a medical certificate is not eligible for overtime. In my view, the following reasons point conclusively to this being the correct interpretation.

[17] First, the last paragraph of clause 7.1 contains a single sentence that is concerned with the eligibility of a shift worker for overtime. The shift worker is the subject of this sentence both substantively and grammatically. The shift worker in question ‘has taken personal leave on the immediately preceding rostered shift.’ It does not make sense to speak of employees taking personal leave on a shift for which they were not rostered, and on which they could therefore not possibly have taken personal leave. But on the union’s interpretation, such an unreal situation is within the clause’s analytical contemplation. In the scenario stated in paragraph 6 above, the union concludes that, save for the day shift on the first day of the 5 day break, the employee in question is not ineligible for overtime, because he or she did not take personal leave on the immediately preceding shift – a day the employee was not rostered to work. The clause would not be engaged because an impossible situation did not occur. Such an interpretation cannot be sustained.

[18] Secondly, on the union’s construction, when clause 7.1 is triggered, the employee is ineligible for overtime on the next single shift. This is a clear, discrete, and easily identifiable circumstance. If the clause were only concerned with this particular situation, it could simply have called it out: where a shift worker does not provide a medical certificate for a personal leave absence, he or she is ineligible for overtime on the next shift. Instead, clause 7.1 establishes a framework for eligibility for overtime generally (not just on the next shift), and does so by looking back to what has occurred on the ‘immediately preceding rostered shift’. This too points to the conclusion that rostered shift means a shift on which the employee was rostered to work.

[19] Thirdly, if the reference to rostered shift in clause 7.1 means any shift, regardless of whether the shift worker in question worked it, the word ‘rostered’ could simply have been omitted. It would be sufficient to refer simply to ‘the immediately preceding shift’.

[20] The CFMMEU noted that clause 6.2 draws a distinction between days which are ‘rostered on’ and those which are ‘rostered off’. Thus it can be contended that the reference in clause 7.1 to ‘immediately preceding rostered shift’ applies to each type of ‘rostered shift’, those rostered-on and those rostered-off. This might go some way to bringing the union’s interpretation into line with the contextual considerations mentioned above, namely that the clause is concerned with the position of a shift worker who has taken personal leave, and that person’s rostered shifts. On the union’s argument, that person’s shifts include both shifts rostered-on and shifts rostered-off. But the fact remains that the shift worker cannot take personal leave on a shift he or she is not rostered to work.

[21] The union also contended that the words ‘immediately preceding’ are significant and focus attention on the shift adjacent to the one in respect of which overtime might be worked. It says the word ‘immediately’ means ‘without any intervening space or time’; and that together, the words ‘immediately preceding’ refer to ‘an event before the event in question without any break in time or space’. As to the meaning of the word ‘immediately’, much depends on context. 6 However, once it is understood that ‘rostered shift’ in clause 7.1 means the employee’s rostered shift, it is clear that the immediately preceding rostered shift is simply the last shift on which the employee was rostered.

[22] I appreciate the union’s contention that the provision simply refers to ‘the preceding rostered shift’, when it could easily have said ‘their’ or ‘his’ preceding rostered shift. The union points out that in clause 10.1 one finds precisely this formulation. Using a possessive pronoun instead of the definite article would have made the provision easier to understand, and perhaps have avoided the present dispute. However, the use of the definite article remains in keeping with the construction contended for by the company. It connotes something that is particular rather than unspecified, namely the immediately preceding rostered shift. The definite article does not itself connote any possessive element or link between the shift and the employee, but nor does it preclude it. Clause 10.1 illustrates this point well. It says: ‘Employees shall have a break of at least 10 consecutive hours between leaving work on one rostered shift and the start of their next rostered shift’ (emphasis added).If this clause had instead referred to the start of ‘the next rostered shift’ its meaning would still have been clear from the context. It is concerned with rest breaks between shifts – employees’ own rostered shifts.

[23] The parties’ submissions addressed the various other provisions in the Agreement which use the words ‘rostered shift’. It is clear that there is a roster which identifies the cycle of shifts for the workplace, and that each shift exists within that roster. And in this sense, everyshift is ‘rostered’. AGL contended that the Agreement uses the term ‘roster cycle’ to describe roster arrangements for the workplace generally, without reference to any individual employee’s allocation within that roster cycle, whereas the word ‘rostered’ is used to describe the allocation of employees to work within that cycle. That may be so, but clause 7.1 is concerned with the words ‘rostered shift’, and each of the clauses referred to by the company has a meaning determined by the relevant context.

[24] The parties also made submissions as to the purpose of the last paragraph of clause 7.1. The union contends that the purpose of the clause is apparent from the work it says the clause does: it is appropriate that, if an employee takes personal leave on a shift immediately preceding a shift on which the employee is to work overtime, AGL may require the employee to provide a medical certificate.

[25] AGL said the purpose of the last paragraph in clause 7.1 is to address a potential unacceptable leave practice. Where an employee takes personal leave on their last rostered shift before the five day break, he or she is paid for that shift at ordinary time. If the employee then works overtime on a full shift during the five day break, the worker will be paid double time for that shift. The employee will have worked one shift, but have been paid in effect for three shifts (albeit with a relevant deduction from the employee’s personal leave balance). AGL points to clause 16.5(f), which says that medical certificates may be required where an employee displays a ‘consistent pattern of absenteeism or chronic absenteeism’, and contends that its construction of clause 7.1 is compatible with the concern at which clause 16.5(f) is directed.

[26] Clause 7.1 does not say what its purpose is. In my view it would be wrong to impute to the clause a concern with the possibility of some ‘unacceptable practice’. Clause 7.1 does not deem unacceptable or otherwise impugn the failure to provide a medical certificate; it simply specifies the consequence of this for an employee’s eligibility for overtime. It can reasonably be inferred that the clause encourages employees to obtain medical certificates in order to be fully eligible for overtime. However, that purpose does not have any significant bearing on the resolution of the interpretative dispute. Such a purpose would also be served by the union’s interpretation of the provision. The field of application of the clause (the period of ineligibility for overtime) is simply smaller under the union’s construction.

[27] The CFMMEU contended that the company’s interpretation disregarded the significance of clause 7.9, which establishes an ‘overtime equalisation system’ used to determine the order in which employees are offered overtime. The agreed process that applies to the employees whose employment is subject to this dispute is the AGL Loy Yang Stations Operations Overtime Policy Document. 7 This is the ‘overtime allocation system policy document’ referred to in clause 7.9. The union says that this document does not exclude employees from working overtime in the circumstances that would be affected by the company’s interpretation of clause 7.1, and that this cannot be reconciled with the company’s position. However, there is no need for the incorporated policy document to repeat an exclusion that is expressly provided for in the body of the Agreement.

[28] The parties filed witness statements in support of their respective positions. AGL submitted a statement from Russell James, Acting Head of Generation, who attested to the background to the making of the Agreement, the shift patterns used by the company, and the overtime arrangements under the Agreement and its predecessor. In particular, he stated that AGL has never had a practice of allocating overtime to employees on a shift after having been rostered to work a 12 hour shift. The CFMMEU submitted a witness statement of Stuart Caines, Lodge President of the Loy Yang A Power Station Lodge. He cited a number of examples where employees had been rostered to work a 12 hour overtime shift in circumstances where the employee had been rostered on the immediate prior shift, but had been absent on personal leave. Mr Caines attended the hearing and was cross-examined.

[29] Mr Caines’ evidence was led in response to the statement of Mr James. The union’s primary position was that the statement of Mr Jamesshould not be admitted, on the basis that the Agreement has a plain meaning, that evidence of the surrounding circumstances is not admissible to contradict the plain language, and that admissible evidence is limited to that tending to establish objective background facts known to both parties. These propositions properly reflect the decision of the Full Bench in Berri. To the extent that Mr James’ statement was produced for the purpose of establishing the surrounding circumstances of the making of the Agreement, I disregard it. No recourse to extrinsic materials or evidence of surrounding circumstances is necessary, because the relevant provision that is the subject of this dispute is not ambiguous.

Conclusion

[30] I consider that the last paragraph in clause 7.1 of the Agreement has a plain meaning. Taking into account the ordinary meaning of the text of clause 7.1, in the context of clause 7 and the Agreement as a whole, it is clear that the provision is concerned with an employee’s eligibility for overtime in circumstances where the employee has taken personal leave without a medical certificate on his or her last rostered shift.

[31] For the above reasons, the answer to the question posed by the parties for determination by the Commission is as follows: the words ‘the immediately preceding rostered shift’ in the last paragraph of clause 7.1 of the AGL Loy Yang Enterprise Agreement 2017 mean the last shift on the roster that the employee was rostered to work. The dispute is determined accordingly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR610291>

Appearances:

A. Walkaden for the CFMMEU

D. Williams for AGL Loy Yang Pty Ltd

Hearing details:

2018

Melbourne

26 July

1 AE424736

 2   Clause 6.2(a)

 3   [2017] FWCFB 3005

 4   [2014] FWCFB 7447

 5   See point 1 in paragraph 114 of Berri; and point 8 of paragraph 41 of Golden Cockerel

 6   Note the decision of the Full Bench in CFMMEU and Ors v CBI Constructors Pty Ltd [2018] FWCFB 2732, in which the words ‘immediately before the start of the voting process’ in s 180(4) were held to mean the day before the start of the voting process

 7   CFMMEU reply submissions, paragraph 9; witness statement of Mr Caines, paragraph 6, attachment SC-1