Construction, Forestry, Maritime, Mining and Energy Union v DP World Melbourne Ltd
[2023] FWC 457
•24 FEBRUARY 2023
| [2023] FWC 457 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Construction, Forestry, Maritime, Mining and Energy Union
v
DP World Melbourne Ltd
(C2022/6749)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 24 FEBRUARY 2023 |
Application to deal with a dispute under an enterprise agreement.
On 6 October 2022, the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU) applied to the Fair Work Commission (the Commission) to deal with a dispute pursuant to s 739 of the Fair Work Act 2009 (the Act) under the dispute resolution procedure at clause 29 of the DP World Melbourne Enterprise Agreement 2020[1] (the 2020 Agreement). The Respondent in the matter is DP World Melbourne Ltd (DP World).
The dispute is in relation to the application of clause 1.9 of Part B of the 2020 Agreement which deals with Rest Periods. The MUA contend that the 2020 Agreement does not permit DP World to stagger rest periods of Vessel Operations team members and that one common 45 minute break must be taken together by all Vessel Operations team members unless agreed by employees. DP World dispute the CFMMEU’s construction of the terms of the 2020 Agreement.
Jurisdiction
Section 739 of the Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms. The 2020 Agreement contains such a term, which is clause 29 Dispute Resolution (the DRP).
It was not contested that the questions to be determined by the Commission, which are set out below, are capable of constituting a dispute “arising in the workplace in regard to the application” of the 2020 Agreement. Nor was it in dispute that the steps taken by the parties to resolve the dispute constituted compliance with the DRP of the 2020 Agreement. Having regard to the information in the Form F10 application and the views of the parties, I am satisfied that the Commission has jurisdiction to deal with the dispute, including by arbitration as provided by clause 29.2.7 of the 2020 Agreement.
The matter was subject to conciliation before the Commission on 19 October 2022 as provided by clause 29.2.6 of the 2022 Agreement. The matter was not resolved at the conference and after granting an adjournment to allow the parties an opportunity to hold further direct discussions, my Chambers were advised by the CFMMEU on 28 November 2022 that the matter had not been resolved. The CFMMEU requested the matter be programmed for arbitration pursuant to clause 29.2.7 of the 2020 Agreement.
The hearing
The matter was listed for hearing before me on Monday 20 February 2023 in advance of which the parties filed statements and material on which they intended to rely in accordance with directions issued.
At the hearing, the CFMMEU was represented by its Legal Officer Pedram Mohseni who called Robert Patchett to give evidence. Mr Patchett is the Divisional Assistant Branch Secretary of the Victorian Branch of the Maritime Union of Australia Division of the CFMMEU.
The Respondent was represented at the hearing by Darren Perry of Seyfarth Shaw Australia, who was granted permission to appear pursuant to s 596(2)(a) of the Act. Mr Perry called the following witnesses to give evidence;
· Ben Crosky – General Manager Operations, West Swanson Dock, Melbourne
· Matthew Azzopardi – Supervisor, West Swanson Dock, Melbourne
· Sean Jefferies – General Manager Operations, Fremantle Dock, Perth
Issues for determination
The following questions arise for determination by the Commission;
- Does the 2020 Agreement permit DP World to operate its cranes continuously by staggering rest breaks of Employees in Vessel Operations crane gangs, other than by agreement of those Employees.
- Does the 2020 Agreement require DP World to provide all Employees in Vessel Operations crane gangs with a 45 minute rest break to be taken at the same time, unless agreed otherwise by those Employees.
Agreement and Award provisions
As earlier stated, the dispute in this matter relates to clause 1.9 of the 2020 Agreement and specifically the meaning and effect of clause 1.9.2e) of that agreement. Clause 1.9 is found in a similar form in previous agreements including the DP World Melbourne Enterprise Agreement 2008 (the 2008 Agreement), the DP World Melbourne Enterprise Agreement 2011[2] (the 2011 Agreement) and the DP World Melbourne Enterprise Agreement 2016[3] (the 2016 Agreement). It is useful to set out the clauses from each of the predecessor agreements as well as the 2020 Agreement.
The 2008 Agreement included a provision in Part B that dealt with Rest Periods. After setting out in Table form at clause 1.9.1 the Standard Rest Periods that applied according to shift length, the balance of clause 1.9 provided as follows;
“……………….
1.9.2Vessel Operation Rest Periods
1.9.2.1 An Employee appointed to vessel operations will be entitled to one rest period of 45 minutes inclusive of walking and washing time.
1.9.2.2 At the commencement of this Agreement a crane gang will consist of; one foreman, two crane operators, one Straddle driver and one multi skilled operator.
1.9.3Straddle Pool Operation Rest Periods
1.9.3.1 An Employee appointed to straddle pool operations will be entitled to two rest periods totalling 45 minutes inclusive of walking and washing time. (Parking Bays will be provided in the vicinity of amenities).
1.9.3.2 Rolling breaks will be introduced where an Employee will not be required to start a rest period earlier than 1.5 hours after the commencement of the shift or later than 1.5 hours before the conclusion of the shift.
1.9.3.3 No operator will be required to drive a straddle for more than 3 hours.
1.9.3.4 Pool straddle operators will be advised of intended rest period times at the commencement of shift, which may be adjusted 1 hour after the commencement of shift.
1.9.4 Each Employee shall take rest periods at times to suit operational and maintenance requirements. Changes to rest periods may be advised one hour after the commencement of shift.”
The 2011 Agreement relevantly included Rest Period terms in Part B of the agreement that were in substance the same as those contained in the 2008 Agreement, albeit formatting of clause numbering to letter changes were made to sub-clauses. That can be seen by the following;
“……………..
1.9.2 Vessel Operation Rest Periods
(a) An Employee appointed to vessel operations will be entitled to one rest period of 45 minutes inclusive of walking and washing time.
(b) At the commencement of this Agreement a crane gang will consist of: one foreman, two crane operators, one Straddle driver and one multi skilled operator.
1.9.3 Straddle Pool Operation Rest Periods
(a) An Employee appointed to straddle pool operations will be entitled to two rest periods totalling 45 minutes inclusive of walking and washing time (Parking Bays will be provided in the vicinity of amenities).
(b) Rolling breaks will be introduced where an Employee will not be required to start a rest period earlier than 1.5 hours after the commencement of the shift or later than 1.5 hours before the conclusion of the shift.
(c) No operator will be required to drive a straddle for more than 3 hours.
(d)Pool straddle operators will be advised of intended rest period times at the commencement of shift, which may be adjusted one hour after the commencement of shift.
1.9.4 Each Employee shall take rest periods at times to suit operational and maintenance requirements. Changes to rest periods may be advised one hour after the commencement of shift.”
The 2016 Agreement again included the Rest Period clause in Part B of the agreement in terms that were unchanged in structure from the 2011 Agreement although some wording changes were made to sub-clauses which are highlighted in the following;
“……………..
1.9.2 Vessel Operation Rest Periods
(a) An Employee appointed to vessel operations will be entitled to one rest period of 45 minutes inclusive of walking and washing time in a shift of 7 or 8 hour duration.
(b) At the commencement of this Agreement a crane gang will consist of: one foreman, two crane operators, one Straddle driver and one multi skilled operator.
1.9.3 Straddle Pool Operation Rest Periods
(a) An Employee appointed to straddle pool operations will be entitled to two rest periods totalling 45 minutes inclusive of walking and washing time in a shift of 7 or 8 hour duration (Parking Bays will be provided in the vicinity of amenities).
(b) Rolling breaks will be introduced where an Employee will not be required to start a rest period earlier than 1.5 hours after the commencement of the shift or later than 1.5 hours before the conclusion of the shift.
(c) No operator will be required to drive a straddle for more than 3 hours.
(d)Pool straddle operators will be advised of intended rest period times at the commencement of shift, which may be adjusted one hour after the commencement of shift.
1.9.4 Each Employee shall take rest periods at times to suit operational and maintenance requirements. Changes to rest periods may be advised one hour after the commencement of shift.”
The 2020 Agreement retained the Rest Period clause in Part B of the agreement and while some wording of the clause was changed, a more significant change was made resulting in the subsuming of clause 1.9.4 contained in previous agreements into clause 1.9.2 of the 2020 Agreement. That change is highlighted below;
“1.9 Rest Periods
The following standard rest periods shall apply other than where specified below in these subclauses.
Worked Hours Break Time 4 hours of less 15 minutes 7-8 hours 45 minutes in total (No more than 2 rest periods) 9 to 10 hours 60 minutes in total (no more than 3 rest periods) 11 to 12 hours 75 minutes in total (No more than 3 rest periods) 1.9.1Vessel Operations Rest Periods
a)An Employee appointed to vessel operations will be entitled to one (1) rest period of 45 minutes inclusive of walking and washing time in any seven (7) or eight (8) hours worked in the shift. Parking bays will be provided in the vicinity of the amenities.
1.9.2 Straddle Pool Operations Rest Periods
a)An Employee appointed to straddle pool operations, will be entitled to two (2), 30 minute breaks from driving the straddle in any seven (7) or eight (8) hours worked in the shift.
b)Rolling breaks will be introduced where an Employee will not be required to start a rest period earlier than 1.5 hours after commencement of the shift or later than 1.5 hours before the conclusion of the shift;
c)No operator will be required to drive a straddle for more than three (3) consecutive hours.
d)Straddle pool operators will be advised of intended rest period times at the commencement of shift, which may be adjusted one hour after commencement of shift.
e)Each Employee shall take rest periods at times to suit operational and maintenance requirements. Changes to rest periods may be advised up to one hour after the commencement of shift.”
As will be seen by a review of clause 1.9 of Part B of the 2020 Agreement above, the term “Employee” is used in the clause. The term “Employee” is relevantly defined at clause 7.0 of the 2020 Agreement as follows;
“Employee means an employee of the Company covered by this Agreement.”
As will be elaborated on later in this decision, the CFMMEU contend it is necessary by its construction of clause 1.9 of Part B of the 2020 Agreement to incorporate into the 2020 Agreement clause 15.2(c) of the Stevedoring Industry Award 2020 (the Award). That clause deals with the timing, manner and staggering of rest breaks for shiftworkers. Clause 15.2 of the Award provides as follows;
“15.2 Paid rest breaks—shiftworkers
(a)A paid rest break (or breaks) must be provided as follows during the ordinary hours of work:
Length of shift Length of breaks 7 hours 45 minutes 8 hours 60 minutes
(b)Where an employee who is working shiftwork is required to work more than one hour’s overtime prior to the commencement, or following the conclusion, of their normal starting or finishing time, the employee is entitled to an additional 15 minute paid rest break.
(c)Meal and rest breaks will be taken at a time and manner agreed between the employer and the employee and may be staggered.
(d)An employee required to continue working during a rest break will be paid overtime at 100% of the ordinary hourly rate in addition to the rate applicable to the shift worked. The employee will continue to be paid overtime until the break is taken.”
Background and evidence
A number of factual matters were not in contest. These may be summarised as follows;
DP World operates a container terminal at West Swanson Dock in West Melbourne (the Terminal) which is operated on a 24 hour basis with three shifts of eight hours in each 24 hour period, referred to as Night Shift (2200 – 0600), Day Shift (0600 – 1400) and Afternoon Shift (14000 – 2200).[4]
Stevedoring employees engaged by DP World at the Terminal are covered by the 2020 Agreement[5].
Within the ‘quayside’ stevedoring operation, staff are deployed in either the Vessel Operations or in Straddle Pool Operations. There are several quayside cranes to which crane gangs may be deployed in Vessel Operations[6].
In Vessel Operations, each shift has historically been conducted on the basis of either ‘continuous operations’ or ‘non-continuous operations’ depending on operational and/or maintenance requirements[7].
Continuous operations require the deployment of a sufficient number of staff to crane gangs so as to allow for continuous container loading/unloading operations throughout a shift, which requires the staggering of rest breaks of crane gang members across the shift[8].
Non-continuous operations require reduced staffing of a crane gang and the crew takes a common 45 minute rest break at the same time, resulting in the cessation of container loading/unloading for the duration of the rest break[9].
While there are other means of increasing container loading/unloading productivity including by scheduling shift ‘extensions’, vessel movement planning and load planning, a key productivity lever historically used by DP World is that of implementing continuous operations which can yield an additional 30 containers per shift.
Up until mid-2019, the vast majority of shifts (approximately 95%) in Vessel Operations were worked on a continuous operations basis, this having been a feature of the Terminal operations since the early 1990s[10].
While the cost of running shifts is on average greater in continuous operations due to the additional crew numbers required, the Terminal is required to run continuous operations from time to time to meet customer service needs and targets[11].
Since mid-2019, a combination of factors has led to a reduced reliance on continuous operations at the Terminal including COVID 19 demand and supply chain impacts, increased competition and reduced demand for Terminal services. This has meant continuous operations are only used approximately 5% of the time now[12].
Continuous operations in Vessel Operations are generally more beneficial for employees in respect of the hours worked and aggregate length of breaks per shift and it was of concern to employees in mid-2019 when the Terminal moved away from continuous operations as the normal operating mode[13].
It was uncontroversial that continuous operations and the staggering of rest breaks was raised as an issue by the CFMMEU in March 2022. It was indicated by an on-site delegate to Mr Crosky at that time that the CFMMEU believed that continuous operations and the staggering of rest breaks of Vessel Operations crews was not permitted under the 2020 Agreement. What then followed were attempts over the ensuing months to resolve the dispute between the parties, which included Mr Crosky proposing and implementing an alternate continuous operations roster[14]. Those efforts were unsuccessful and as earlier stated the CFMMEU notified a dispute to the Commission on 6 October 2022. It is also noted that the issue of the CFMMEU’s opposition to staggered rest breaks that emerged in March 2022 also appears on the evidence of both Mr Patchett and witnesses for DP World to have been raised in the context of a number of other matters of concern to the CFMMEU including staffing levels, public holidays and cancellation of idle time.
The issues of rest breaks and rosters were also raised by the CFMMEU with Worksafe in or about August 2022, resulting in a Worksafe Inspector visiting the Terminal on 24 August 2022, arising from which it was recommended that the DP World revert to the original rest break pattern to allow the conduct of a risk assessment. Terminal HSR’s subsequently declined to participate in the recommended risk assessment and did not make themselves available to meet with the Worksafe Inspector when he returned to the site on 21 October 2022[15]. That lack of engagement by HSR delegates was said by Mr Patchett to be due to the HSR’s not being afforded an opportunity to be supported in discussions with Worksafe by CFMMEU officials, a claim rejected by the Respondent.
DP World witnesses gave consistent evidence that up until March 2022, continuous operations and staggered rest breaks in Vessel Operations (and Straddle Pool Operations) had been an accepted feature of Terminal operations for at least 30 years and had previously not been the subject of union challenge. Mr Patchett disputed during his cross-examination that the CFMMEU had not previously raised the issue of staggered rest breaks and continuous operations and claimed that disputes had been raised at a site level at various times. Mr Patchett was unable to identify when this had occurred, in what circumstances those ‘disputes’ arose or how those ‘disputes’ had been resolved. He conceded however that the issue of staggered rest breaks and/or continuous operations had not been escalated as a dispute to the Commission.
At the core of the dispute over continuous operations and the use of staggered rest breaks in Vessel Operations at the Terminal was the change made to clause 1.9 in Part B of the 2020 Agreement. As described above at [14], the former ‘standalone’ sub-clause 1.9.4 as it appeared in previous agreements was subsumed into clause 1.9.2 in the 2020 Agreement. This subsuming of the former clause 1.9.4 into the sub-clause dealing with rest breaks for Straddle Pool Operations was said by the CFMMEU to confine the effect of what is now clause 1.9.2e) of Part B of the 2020 Agreement to Straddle Pool Operations only, thus depriving DP World of the ability to stagger rest breaks in Vessel Operations in the absence of agreement of the relevant Employees.
As a result of the above-described change to clause 1.9 of Part B of the 2020 Agreement, there was necessarily evidence led that went to bargaining for the 2020 Agreement. Evidence of DP World witnesses may be summarised as follows;
Clause 1.9.2e) as it appears in the 2020 Agreement had always been a standalone clause in prior agreements and operated in respect of both Vessel Operations and Straddle Pool Operations[16].
A claim to change the established rest break and continuous operations arrangements as it applied to Vessel Operations was not raised by the CFMMEU in bargaining[17].
A review of bargaining records by Mr Jeffries failed to identify any documents or references that established that continuous operations and staggered rest breaks, and their removal in Vessel Operations other than by agreement of employees, formed part of the CFMMEU’s claims.
Mr Jeffries agreed that the merging of Vessel Operations and Straddle Pool operations into one crew for the purpose of rest break arrangements under clause 1.9 of Part B of the Agreement was raised, and rejected by DP World.
Mr Jefferies also agreed that the clause 1.9.2 in the 2020 Agreement which deals with Straddle Pool Operations rest breaks, was amended to increase the rest break entitlements from two breaks totalling 45 minutes as provided in prior agreements to two breaks of 30 minutes totalling 60 minutes.
The written explanation document provided to employees as part of the ballot approval process for the 2020 Agreement did not identify any change in rest break arrangements other than the above-described increase in the Straddle Pool Operations break entitlement[18].
Mr Jefferies was cross-examined in relation to his evidence. He conceded that he was not involved in negotiations for the 2020 Agreement, which commenced in 2018, prior to March 2019 when he took up the role of General Manager at the Terminal, a role he remained in until May 2022. He variously confirmed that he had only produced a copy of one set of minutes from the 2020 Agreement negotiations in support of his claim that the issue of continuous operations was not raised by the CFMMEU and that he did not prepare those minutes. He confirmed when pressed that while the Straddle Pool Operations break duration was in the CFMMEU’s log of claims, the issue of continuous operations and staggered breaks in Vessel Operations was not. He also agreed that the merging of Vessel Operations and Straddle Operations for the purpose of rest breaks in clause 1.9 of Part B was raised by the CFMMEU and rejected, yet was not referred to in the minutes of the meeting he produced in evidence.
When further pressed regarding bargaining, Mr Jeffries agreed that clause 1.9.2e) was amended to include the word “up” in the sub-clause which he says was not a significant change to the wording or effect of the clause. He confirmed that the renumbering of the clause had the apparent though unintended effect of subsuming the former standalone clause 1.9.4 into clause 1.9.2 dealing with Straddle Pool Operations. He was adamant this was a formatting error that arose in drafting, and was never raised, discussed or agreed in bargaining for the 2020 Agreement.
Despite evidence having been filed by DP World in relation to bargaining for the 2020 Agreement and the CFMMEU having an opportunity to file material in reply in accordance with directions, no evidence was produced in response that sought to rebut Mr Jeffries’ evidence. That is beyond Mr Patchett filing a supplementary statement referring to Part B provisions in the DP World Fremantle Enterprise Agreement 2020 (the Fremantle Agreement).
Mr Patchett was cross-examined on bargaining for the 2020 Agreement during which he agreed that the issue of merging Vessel Operations and Straddle Pool Operations was raised along with increasing the Straddle Pool Operations rest break entitlement. He also agreed that the wording of clause 1.9.2e) was largely the same as previous agreements, accepted that it had previously been a standalone clause and that the only difference in the 2020 Agreement is that of a change in the numbering that brought it within clause 1.9.2 of Part B. He was evasive on whether the intention of the parties was to rollover the clause and replied that some clauses were rolled over. Notwithstanding the concessions made by Mr Patchett, he rejected that the subsuming of 1.9.2e) into clause 1.9.2 was a formatting error. He was unable to reconcile the subsuming of sub-clause 1.9.2e) into clause 1.9.2 when that clause already had, and retained, a separate sub-clause dealing with Straddle Pool Operations rest breaks, that of clause 1.9.2d).
Mr Jefferies also states that following commencement of operation of the 2020 Agreement in March 2021, continuous operations and staggered rest breaks in Vessel Operations continued to be utilised on an as needs basis. He says that between March 2021 and when he left the role of General Manager at the Terminal to take up a similar role in Fremantle, he recalls continuous operations being used on 40 occasions.
Consideration
The case for the CFMMEU may be shortly stated. It contends that by reason of clause 1.9.2e) being subsumed into clause 1.9.2 in Part B in the 2020 Agreement, DP World is no longer able to rely on that sub-clause for the purpose of scheduling the time and manner of the taking of rest breaks in respect of the Vessel Operations crane gangs at the Terminal. On the CFMMEU’s construction of clause 1.9 of Part B of the 2020 Agreement, the agreement is silent on the timing and manner of scheduling of rest breaks in respect of Vessel Operations therefore reliance must be placed on the relevant incorporated terms of the Award. The relevant clause in the Award is that of clause 15.2(c) which requires the timing and manner of rest breaks to be agreed. It follows on the CFMMEU’s construction that staggering of rest breaks which is necessary for continuous operations at the Terminal is only permitted by agreement of employees.
In support of its construction the CFMMEU submit that there is insufficient evidence that there was a formatting error in drafting the 2020 Agreement as claimed by DP World or that there is sufficient uncertainty or ambiguity in the clause to enable the Commission to depart from the plain meaning of the words of the clause. While not denying the long history of the clause or that clause 1.9.2e) previously operated as a ‘standalone clause’, the CFMMEU cast doubt on Mr Jefferies evidence on bargaining for the 2020 Agreement, noting that he was not involved until bargaining had been underway for at least 12 months. They also refer to evidence conceded by Mr Jeffries that the wording of clause 1.9.2e) was amended by inclusion of the word “up” which put into doubt his claim that the issues of continuous operations and staggered breaks had not been dealt with in bargaining. As regards the apparent overlap of clauses 1.9.2d) and 1.9.2e) the CFMMEU explained that as perhaps due to clumsy drafting.
The CFMMEU concede that if the Commission found that clause 1.9.2e) was to be construed as a standalone clause as per prior agreements and not subsumed as part of clause 1.9.2 of the 2020 Agreement, DP World would be permitted to schedule continuous operations and stagger rest breaks in Vessel Operations.
DP World contend that a formatting error was made in drafting the 2020 Agreement which had the effect of subsuming the disputed clause into clause 1.9.2 of the agreement. They refer to the long history of continuous operations and staggered rest breaks at the Terminal, that there was a common understanding on those arrangements, those arrangements are essential to managing productivity and that there is no evidence that the CFMMEU has ever disputed the right of DP World to conduct continuous operations or stagger rest breaks to accommodate operations and maintenance requirements. They also refer to prior agreements going back to at least the 2008 Agreement in which the disputed clause was always a standalone clause that applied to both Vessel Operations and Straddle Pool Operations. They also rely on evidence of bargaining for the 2020 Agreement and that no claim was raised, discussed or agreed that went to fettering DP World’s right to schedule rest breaks in Vessel Operations having regard to operational and maintenance requirements.
DP World point to other matters that provide a context to the disputed construction of clause 1.9.2e). Those matters include the circumstances in which the dispute arose, that being there were a number of other matters the CFMMEU were seeking to negotiate on at the time including crew levels and public holidays. Also, despite the CFMMEU citing health and safety concerns which prompted them to refer the matter to Worksafe, their HSR representatives failed to participate in a recommended risk assessment or engage with the Worksafe Inspector when he returned to site in October 2022. Further, continuous operations and staggered rest breaks continued to be used from time to time after the 2020 Agreement came into operation in March 2021.
In resolving the dispute over the construction of clause 1.9 of Part B of the 2020 Agreement it is necessary for me to apply the normal principles of construction of enterprise agreement terms. Those principles are well established and were considered at length in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd[19] (Berri) and need not be re-stated, save for summarising what I understand the key principles enunciated by the Full Bench in that matter to be;
· construction of the disputed clause begins with a consideration of the ordinary meaning of the relevant words, having regard to its context and purpose;
· it is first necessary to determine whether the agreement has a plain meaning or if it is ambiguous;
· if the agreement has a plain meaning, evidence of surrounding circumstances will not be admitted to contradict the plain meaning;
· if the language is ambiguous or susceptible of more than one meaning, evidence of surrounding circumstances will be admissible to aid interpretation;
· evidence of surrounding circumstances is limited to that establishing objective background facts which were known to both parties and may include;
§ evidence of prior negotiations;
§ notorious facts known to both parties; and
§ evidence of matters in common contemplation and constituting a common assumption;
· admissible extrinsic material may not be used to disregard or re-write the provision to give effect to an externally derived conception of what the parties’ intention or purpose was; and
· in some circumstances, subsequent conduct may be relevant.[20]
More recently, the Full Court of the Federal Court set out the relevant principles applicable to the interpretation of an enterprise agreement in James Cook University v Ridd[21] (Ridd) when they said as follows;
“[65] The relevant principles applicable to the interpretation of an enterprise agreement may be stated as follows:
(i) The starting point is the ordinary meaning of the words, read as a whole and in context (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]).
(ii)A purposive approach is preferred to a narrow or pedantic approach — the framers of such documents were likely to be of a “practical bent of mind” (Kucks v CSR Limited [1996] 66 IR 182, 184; Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 [16]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]). The interpretation “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose” (Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 [2]).
(iii) Context is not confined to the words of the instrument surrounding the expression to be construed (City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]). It may extend to “… the entire document of which it is a part, or to other documents with which there is an association” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518; Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth of Australia [1998] FCA 249; 82 FCR 175, 178).
(iv) Context may include “… ideas that gave rise to an expression in a document from which it has been taken” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518).
(v) Recourse may be had to the history of a particular clause “Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form…” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518).
(vi) A generous construction is preferred over a strictly literal approach (Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499, 503-4; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [57]), but “Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties” (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 380).
(vii) Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378-9; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]).”
In turning to construction of the disputed clause 1.9.2e) it is necessary to say something about the structure of the 2020 Agreement. It contains two parts, Part A and Part B. Part A includes common conditions negotiated to apply across all of DP World’s stevedoring operations around Australia. That means that the Part A terms and conditions are replicated in agreements that apply in Sydney and Fremantle for example. Part B of the 2020 Agreement include terms and conditions negotiated to apply at the Melbourne Terminal only. The same approach is adopted with respect to agreements applying at each of the other DP World operations.
Relevantly, clause 5 of Part A of the Agreement incorporates the Award subject to the following;
“5.1 This Agreement shall be read in conjunction with the following awards:
5.1.1. Stevedoring Industry Award 2020 as varied; and
5.1.2. Stevedoring Industry (long Service Leave) Award 1992,
(Collectively referred to as “the Awards”)
5.2Where there is any inconsistency between this Agreement and any provision of the Awards, the Agreement shall apply to the extent of the inconsistency. Provided however that the Award provisions shall cease to apply only to the extent and for the period necessary to permit the operation of the Agreement.
……………”
The disputed clause 1.9.2e) is found in clause 1.9 Rest Periods of Part B of the 2020 Agreement. As set out above at [14], clause 1.9 includes a table which sets out the general rest period entitlements. It is stated that those general rest period entitlements “apply other than where specified below in these sub-clauses”. Two sub-clauses then follow, clause 1.9.1 which is headed Vessel Operations Rest Periods and clause 1.9.2 headed Straddle Pool Operations Rest Periods. The disputed sub-clause 1.9.2e) falls within the Straddle Pool Operations Rest Periods clause.
In applying a “strict literal approach” to interpretation of clause 1.9.2 of the 2020 Agreement, it would appear that that the subsuming of clause 1.9.2e) into clause 1.9.2 in the 2020 Agreement means that the requirement for rest periods to be taken at a time to suit operational and maintenance requirements only applies to Straddle Pool Operations and not to Vessel Operations. Absent any other provision in the 2020 Agreement dealing with the timing and manner of taking rest periods in Vessel Operations, clause 15.2(c) of the incorporated Award would arguably have work to do. That construction advanced by the CFMMEU is however rejected for the reasons that follow.
Within clause 1.9.2, there are two sub-clauses that deal with rest periods in respect of Straddle Pool Operations, those being sub-clause 1.9.2d) and 1.9.2e). Sub-clause 1.9.2d) states as follows;
d) Straddle pool operators will be advised of intended rest period times at the commencement of shift, which may be adjusted one hour after commencement of shift.
Immediately following sub-clause d) is sub-clause e) which states as follows;
e) Each Employee shall take rest periods at times to suit operational and maintenance requirements. Changes to rest periods may be advised up to one hour after the commencement of shift.
Both sub-clauses d) and e) on their face deal with rest periods in Straddle Pool Operations. Given that d) confers a clear authority to DP World to set the time for rest periods, the utility of e) being subsumed into clause 1.9.2 is unclear as it largely overlaps in effect what is already provided by d). The CFMMEU were unable to identify the utility of subsuming e) into clause 1.9.2 and explained it as perhaps being due to clumsy drafting.
Further, the language used in e) may be contrasted with the language used elsewhere in clause 1.9.2. Sub-clause e) refers to “Each Employee shall take rest periods” whereas sub-clause clause a) appears to narrow the class of persons captured by the clause where it relevantly states “An Employee appointed to straddle pool operations….”. The focus of clause 1.9.2 on Straddle Pool Operations is reinforced by the language in sub-clause d) where it refers to “Straddle pool operators….”. That focussed language is absent in sub-clause e) where it simply refers to “Each Employee” with no reference to Straddle Pool Operations. That difference in language is significant where, as previously stated, the term Employee is defined at clause 7 of the 2020 Agreement as “Employee means an employee of the Company covered by this Agreement”, that being the entire cohort of employees covered by the 2020 Agreement.
The inclusion of sub-clause e) in clause 1.9.2 cannot be easily reconciled with sub-clause d) which deals with the same issue, that of the timing of rest breaks for Straddle Pool Operations. Added to that tension is the above-referred language differences within clause 1.9.2 whereby e) appears to have a broader import than just Straddle Pool Operations. In my view there is sufficient ambiguity in the meaning of the cluses such as to permit consideration of the surrounding circumstances. Such an approach would be consistent with the principles set out in Ridd.
A number of factors provide important context that assists construction of clause 1.9.2. Firstly, the history of the clause may be seen in the prior agreements as set out above at [11]-[13] and is uncontroversial. As clear from the 2008, 2011 and 2016 Agreements, clause 1.9.2e) was a standalone sub-clause within clause 1.9 in each of those prior agreements, the effect of which was to permit rest periods to be scheduled by DP World at times having regard to operational and maintenance requirements in both Vessel Operations and Straddle Pool Operations. While contended by Mr Patchett that the clause had been disputed at times in the past, there is no evidence beyond that assertion. To the contrary, it appears that continuous operations and staggered rest breaks have been a feature of Terminal operations for up to thirty years. At the very least, it has been a feature of enterprise agreements going back to at least 2008.
I am satisfied that there was a common understanding between the parties that clause 1.9.2e), as it appeared in agreements prior to the 2020 Agreement, permitted DP World to implement continuous operations and staggered rest breaks in both Vessel Operations and Straddle Pool Operations without requiring agreement of employees to such arrangements.
Against the above history and the parties’ common understanding of the operation of the predecessor clauses to sub-clause 1.9.2e), bargaining was initiated for the 2020 Agreement in 2018. While the CFMMEU strove to suggest that the issue of continuous operations and staggered rest breaks was raised in bargaining, there is no evidence whatsoever that it was raised in bargaining nor agreed that clause 1.9 would be amended to remove the requirement to take into account the operational and maintenance requirements when scheduling rest breaks in Vessel Operations. Nor was the substantive change in the effect of the clause contended by the CFMMEU, explained to employees as part of the explanation of the terms of the 2020 Agreement in advance of the ballot for approval of the agreement.
I am satisfied that no claim was made by the CFMMEU nor agreement reached with DP World for clause 1.9 of Part B of the 2020 Agreement to be amended to remove the right of DP World to implement continuous operations and staggered rest breaks in Vessel Operations other than by agreement of Employees. The change to the clause resulting in sub-clause 1.9.2e) being subsumed into clause 1.9.2 was unarguably a formatting error as contended by DP World, and the CFMMEU have failed to advance any probative evidence that would rebut that conclusion. My conclusion is supported by the history of the clause, the parties’ common understanding of the history and effect of predecessor clauses, the issue of continuous operations and staggered rest breaks was not raised in bargaining for the 2020 Agreement and the parties continued to work on the basis of the 2020 Agreement permitting continuous operations and staggered rest breaks in Vessel Operations following its approval in March 2021.
The above leads me to conclude that clause 1.9.2e) is to be construed as operating as a standalone clause within clause 1.9 of the 2020 Agreement such that it applies to “Employees” deployed in either Vessel Operations or Straddle Operations. On that construction, DP World is permitted to conduct continuous operations and stagger rest breaks of Employees to accommodate operational and maintenance requirements in both Vessel Operations and Straddle Pool Operations without requiring agreement of employees.
As conceded by the CFMMEU, if it is found that clause 1.9.2e) operates as a standalone clause within clause 1.9 of Part B of the Agreement, the CFMMEU’s case must fail. I have found that the disputed clause operates as a standalone clause and applies to both Vessel Operations and Straddle Pool Operations. Consequently, DP World can, at its discretion, schedule continuous operations and stagger rest breaks in both of these areas of its operations. Nor is it is compelled to allow employees in Vessel Operations to take a common 45 minute rest period in the absence of agreement of employees to do otherwise.
Conclusion
It follows from the foregoing that the answers to the questions posed for determination are as follows;
1.Does the 2020 Agreement permit DP World to operate its cranes continuously by staggering rest breaks of Employees in Vessel Operations crane gangs, other than by agreement of those Employees.
The answer is “Yes”.
2.Does the 2020 Agreement require DP World to provide all Employees in Vessel Operations crane gangs with a 45 minute rest break to be taken at the same time, unless agreed otherwise by those Employees.
The answer is “No”.
The matter is determined accordingly.
DEPUTY PRESIDENT
Appearances:
P Mohseni for the Applicant.
D Perry for the Respondent.
Hearing details:
2023.
Melbourne:
February 20.
[1]AE510700
[2] AE893717
[3] AE418296
[4] Exhibit R2, Witness Statement of Ben Crosky, dated 10 February 2023 at [13]
[5] Ibid at [13]
[6] Ibid at [9]-[10]
[7] Ibid at [19]-[20]
[8] Ibid at [15]
[9] Ibid
[10] Exhibit R3, Witness Statement of Sean Jeffries, dated 10 February 2023, at [8]
[11] Exhibit R2 at [31]
[12] Ibid at [22]
[13] Exhibit R3 at [10]
[14] Exhibit R2 at [35]-[42]
[15] Ibid at [48]-[51]
[16] Exhibit R3 at [20]
[17] Ibid at [17]
[18] Exhibit R4, Information about the terms and effect of the DP World Enterprise Agreement 2020
[19] [2017] FWCFB 3005
[20] Ibid at [114]
[21] [2020] FCAFC 123
Printed by authority of the Commonwealth Government Printer
<PR751125>
0
7
0