Construction, Forestry, Maritime, Mining and Energy Union v Great Southern Energy Pty Ltd T/A Delta Coal

[2020] FWC 5851

[2020] FWC 5851

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Construction, Forestry, Maritime, Mining and Energy Union
v
Great Southern Energy Pty Ltd T/A Delta Coal
(C2020/3843)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 2 NOVEMBER 2020

Application to deal with a dispute in accordance with a dispute settlement procedure in an enterprise agreement – interpretation of public holidays provision in an enterprise agreement.

Introduction and background

[1] This decision concerns yet another dispute about whether an employer has an obligation to make a payment to employees who are not required to work on a public holiday.

[2] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and Great Southern Energy Pty Ltd T/A Delta Coal (Delta) are in dispute about the proper construction of clause 4.1 (public holidays) of the Delta Coal Enterprise Agreement 2019 (Agreement) (Dispute).

[3] On 22 May 2020 the CFMMEU filed an application pursuant to s 739 of the Fair Work Act 2009 (Cth) (Act) in the Fair Work Commission (Commission) for the Commission to deal with the Dispute.

[4] Following an unsuccessful conciliation conference, I made directions and listed the Dispute for arbitration. Both parties filed and served witness statements and submissions in accordance with my directions. A hearing was conducted, by video conference, on 21 October 2020. The CFMMEU adduced evidence from Mr Robin Williams, a Vice President of the Northern Mining & NSW Energy District of the Mining & Energy Division of the CFMMEU. Mr Williams commenced work in the coal mining industry in May 1986. He was employed as a coal miner in the Hunter Valley until May 2008, at which time he became a full-time official of the CFMMEU. Delta adduced evidence from Mr David McLean, Mine Manager.

[5] There is no dispute between the parties, and I am satisfied on the evidence, that I have jurisdiction to arbitrate the Dispute.

A brief outline of the Dispute

[6] On 1 April 2019 Delta acquired the Chain Valley coal mine by way of an asset purchase from LakeCoal Pty Ltd (LakeCoal). At that time, the employees working in the Chain Valley mine were covered by the LakeCoal Pty Ltd – Chain Valley Operations Enterprise Agreement 2016 (2016 Agreement).

[7] Bargaining for an enterprise agreement to replace the 2016 Agreement commenced in May 2019. The Agreement was made in December 2019 and commenced operation on 13 March 2020. It has a nominal expiry date of 30 November 2022.

[8] Relevantly for this Dispute, Delta has four rosters in operation for the employees who work in the Chain Valley mine and who are covered by the Agreement:

•  Weekday Day Shift roster where employees work Monday to Thursday, 6:30am to 4pm. This Monday to Thursday roster was introduced on 13 October 2019; 1

•  Weekday Rotating Afternoon/Night Shift roster where employees work Monday to Thursday one week and Tuesday to Friday the next week. Afternoon shift commences at 2:30pm and concludes at 12:00am;

•  Weekend Day Shift roster where employees work 7am to 7pm only on Friday, Saturday and Sunday; and

•  Weekend Night Shift roster where employees work at 5:30pm to 5:30am, Saturday, Sunday and Monday.

[9] From 2011 until after Delta purchased the Chain Valley mine, weekend roster employees who worked:

•  day shift on Friday, Saturday and Sunday were paid for a public holiday that fell on a Monday; and

•  night shift on Saturday, Sunday and Monday were paid for a public holiday that fell on a Friday. It is the practice in coal mining industry to refer to a night shift by the day the shift finishes, not the day it commences. 2 For example, a Saturday night shift commences on Friday evening and finishes on Saturday morning.

[10] After Delta purchased the Chain Valley mine, it ceased paying employees in these circumstances, notwithstanding the fact that there had been no amendment to the Agreement and the rosters had not changed in any material way. The change was made by Delta because it contended, and contends, that it had a right to do so under the terms of the 2016 Agreement and the Agreement. There is no materially relevant difference between the public holiday provisions in the 2016 Agreement and the Agreement.

Questions for determination

[11] The questions posed by the CFMMEU for resolution in this Dispute are as follows:

First Question to be Determined

Weekend roster employees work either 12-hour Friday, Saturday, and Sunday day shifts, or 12-hour Saturday, Sunday and Monday night shifts.

Question 1(a):

On a proper construction of the Agreement, are these weekend roster employees entitled to payment for a public holiday that is observed on a Monday or Friday where they are not scheduled to perform work?

Question 1(b):

And, if so, what payment are they entitled to?

Second Question to be Determined

Monday to Friday roster employees who work the rotating fortnightly 9.5-hour Monday to Thursday afternoon shift and Tuesday to Friday 9.5-hour night shift roster.

Question 2(a):

On a proper construction of the Agreement, are these employees entitled to payment for a public holiday that is observed on the Friday where they are not scheduled to perform work?

Question 2(b):

And, if so, what payment are they entitled to?

Relevant provisions of the Agreement

[12] The following provisions of the Agreement are relevant to the Dispute:

"1.5 Objective of Agreement

This agreement represents the agreed conditions of employment and site specific conditions that apply to Delta Coal employees at the mines.

The objective of this agreement is to provide a safe, low cost and efficient mine operation. This agreement is designed to enable the following:

a) a work environment with fully flexible work arrangements.

b) a work environment with high standards and one which promotes a positive safety culture where safety comes first and high standards of safety and productivity are the norm.

c) continuous improvement in all aspects of the operation.

d) a commitment from all employees to minimise damage, reduce waste and take actions to assist wherever possible in minimising costs of the operation.

e) develop and maintain relationships based on trust, open communication, mutual respect, commitment and teamwork.

f) job satisfaction with fair and reasonable employment conditions.

g) recognition that the parties have a responsibility for delivering a safe and sustainable business within the community and environment in which we operate

1.6 Relationship with Award

This agreement contains all terms and conditions of employment and is intended to cover the field in that regard. This agreement overrides and operates to the exclusion of all provisions of the Black Coal Mining Industry Award 2010 or any replacement Award.

…

3.1 Hours of Work

a) The ordinary hours of work shall be an average of thirty-five hours per week over the roster cycle.

b) The rostered hours of work shall be ordinary hours and any compulsory overtime included in the rosters which are reasonable additional hours based on all operational circumstances.

c) Delta Coal will provide employees with two week’s notice for variation to roster arrangements or payment at overtime rates until notice has taken effect and shall ensure that the employee receives payment within each pay period during the transition of not less than that payable under the current roster or the new roster, whichever is the lesser.

d) The mine’s operations are based on a continuous process, and as such, Delta Coal may carry out operations on all available hours each day on any day of the year, with the exception of Christmas Day and Boxing Day, and after consultation with employees affected, implement roster systems including start and finish times that, in the view of Delta Coal, meet the needs of the operation. Working on Christmas Day and Boxing Day may be carried out on a voluntary basis.

e) Any change in rosters that involves the introduction of shift lengths over 10.5 hours will only be introduced following agreement between the Company and the majority of the affected employees.

f) Payment for rosters will be on the basis of:

(i) All hours in excess of ordinary hours in the Monday to Friday period of any roster cycle will be paid at double time.

(ii) The rostered hours in the Saturday to Sunday period of the roster cycle will be paid at double time.

(iii) All overtime included in the roster will be paid at double time.

g) Employees may be required to work reasonable overtime beyond the rostered hours of work and will be paid at double time.

h) Trade employees will be required to undertake up to 15 minutes pre and post shift inspections/consultations and will be paid the appropriate overtime rates. Operators who perform both the pre and post checks on equipment remotes will be paid up to 15 minutes per shift at the appropriate overtime rates.

i) Shift starting and finishing place shall be at a designated muster area. Wherever a hot seat changeover is applicable, it is agreed the changeover will be completed effectively.

j) A period of 30 minutes must be allowed each shift for crib. This period will be counted as time worked.

Delta Coal requires employees to assist in maximising production time including staggering crib breaks where possible or taking crib breaks during breakdowns to ensure continuity of production. Crib breaks are to be taken as close as possible to the middle of the shift whilst maintaining production if possible. Payment for staggered cribs is included in the hourly rates.

Employees will not be unreasonably required to work without a crib break.

Where rostered shift lengths of greater than 10.5 hours apply, two thirty minute breaks or one sixty minute break for crib will be allowed.

k) Where Delta Coal requires employees to attend training:

(i) The employee will be paid as if at work if training occurs during normal rostered shift.

(ii) The employee will be paid as if at work if training occurs on a shift in lieu of their normal shift.

(iii) The employee will be paid overtime if training occurs outside of normal roster arrangement.

l) Rest Period after overtime – Employees are required to have a 10 hour break between the finish of an overtime shift and the commencement of their normal rostered shift.

Where overtime has been worked on the preceding shift such that a 10 hour break is not possible prior to the commencement of their next rostered shift, employees will still have the 10 hour break and resume work on the next shift after such a break.

Employees will not incur any loss of pay for ordinary hours of work occurring during such absences. In a situation, where people have to return to work on Delta Coal's instructions without a 10 hour break, they will be paid double time until released from duty.

m) Call Back-Where an employee is recalled to work after leaving the mine they will be paid a minimum of 4 hours at overtime rates.

Where the call back or any subsequent call-back is less than 4 hours, this time will not be regarded as overtime for the purpose of the rest period set down in 3(1)(k).

n) Working past finishing time - Where an employee is required to work on for more than one and half hours after their usual finishing time they will be provided with a meal break of 30 minutes.

…

4.1 Public Holidays

a) The recognised public holidays are:

(i) New year’s Day;

(ii) Australia Day;

(iii) Good Friday;

(iv) Easter Saturday;

(v) Easter Sunday;

(vi) Easter Monday;

(vii) Miners Picnic Day;

(viii) ANZAC Day;

(ix) Labour Day;

(x) Queens Birthday;

(xi) Christmas Day;

(xii) Boxing Day;

(xiii) or any other day observed by the public in the particular region in lieu of one of the above days and all other public holidays gazetted for the particular region.

b) Christmas Day and Boxing Day are nonworking days for all employees. For weekend roster employees, if Christmas Day and/or Boxing Day fall on a non-rostered day, the employer and the majority of the employees affected will agree to observe other day/s in lieu and will be paid as if the employee was at work.

c) If a public holiday falls on a rostered workday, but the employee is not required to work, employee will be paid for that day at their ordinary rate for the number of hours they are ordinarily rostered to work that day at single time.

d) If the public holiday does not fall on a rostered work day for a particular roster there will be no pay for the day, those days are as follows; for employees who work Monday to Friday this will be any public holiday that falls on a Saturday or Sunday, and for employees who work weekend roster this will be any public holiday that falls on a Tuesday, Wednesday or Thursday.

e) If the employee is required to work on a public holiday, they will be paid for that day at their ordinary rate for the number of hours they are ordinarily rostered to work that day at single time, and in addition they will be paid a double their ordinary rate for the ordinarily rostered hours worked on the day. Any hours worked beyond their normal rostered hours will be paid at triple time.”

Principles of construction

[13] There is no dispute between the parties as to the principles that I must apply in properly construing the Agreement. Those principles were summarised by the Full Bench in AMWU v Berri Pty Ltd 3 (Berri) as follows:

“1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision’s place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aid the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”

[14] More recently, the Full Court of the Federal Court of Australia stated the principles applicable to the interpretation of an enterprise agreements in James Cook University v Ridd: 4

“(i) The starting point is the ordinary meaning of the words, read as a whole and in context.

(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”. The interpretation “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose”.

(iii) Context is not confined to the words of the instrument surrounding the expression to be construed. It may extend to “... the entire document of which it is a part, or to other documents with which there is an association”.

(iv) Context may include “... ideas that gave rise to an expression in a document from which it has been taken”.

(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...”

(vi) A generous construction is preferred over a strictly literal approach, 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”.

(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.” [references omitted]

[15] In light of their significance to the current Dispute, the following observations made by Justice Burchett in Short v FW Hercus Pty Ltd 5 concerning an examination of the history of a particular provision are worth setting out in full:

“The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read.”

[16] In addition, because of their relevance to the submissions advanced by the CFMMEU, the following observations by Gray ACJ in Shop Distributive and Allied Employees’ Association v Woolworths Ltd 6in relation to post-agreement conduct are worth repeating:

“There is authority that, if a provision has appeared in a series of agreements between the same parties, and if they can be shown to have conducted themselves according to a common understanding of the meaning of that provision, then it can be taken that they have agreed that the term should continue to have the commonly understood meaning in the current agreement. It is necessary to take great care in the application of this limited principle, to avoid infringing the general principle that the conduct of parties to an agreement cannot be taken into account in construing the agreement. For the limited principle to operate, there must be clear evidence that the parties have acted upon a common understanding as to the meaning of the relevant provision and not for other reasons, such as common inadvertence as to its true meaning.” [references omitted]

Relevant history

[17] The terms and conditions of employees at the Chain Valley mine have been regulated by the following industrial instruments since 2005:

(a) Chain Valley Colliery – CFMEU Certified Agreement 2005 (2005 Agreement);

(b) Chain Valley Colliery Collective Agreement 2008 (2008 Agreement);

(c) LakeCoal Pty Ltd (LakeCoal) - Chain Valley Operations Enterprise Agreement 2011 (2011 Agreement);

(d) 2016 Agreement; and

(e) the Agreement.

[18] Clause 9.4 of the 2005 Agreement governed public holidays. It provides:

“Employees who are rostered off or not required to work on a public holiday will be paid for that day at their ordinary rate for the number of hours for which they are ordinarily rostered to work per day.”

[19] In addition, clause 3.2 of the 2005 Agreement provides:

“The following clauses of the Coal Mining Industry (Production and Engineering) Consolidated Award 1997, as amended from time to time, continue to apply or apply as otherwise amended by this Agreement.

Award clause	Title
…	…

Part 7 (clauses 29 – 37 inclusive) Leave of absence and public holidays”

[20] Clause 9.4.1 of the 2008 Agreement is in the same terms as clause 9.4 of the 2005 Agreement. Clause 3 of the 2008 Agreement excluded the operation of all awards and other industrial instruments in their entirety.

[21] Prior to 2010, the Chain Valley mine operated a weekday roster but did not have employees working on a weekend roster. In 2010 a weekend roster was introduced at the Chain Valley mine. At that time, the 2008 Agreement was in operation. The employer at the time of the introduction of a weekend roster, LakeCoal, produced a document entitled “Agreed Introduction of 12 Hour Shifts on Weekends” (Agreed Document), in the following terms:

“AGREED INTRODUCTION OF 12 HOUR SHIFTS WEEKENDS

LakeCoal Pty Ltd intends to introduce a weekend roster at its Chain Valley Mine. As the intended shift lengths are 12 hours, LakeCoal has consulted with the affected employees at the mine as agreed upon the following conditions relating to the introduction of the roster, as per the requirements of Clause 11.3 of the Chain Valley Colliery Collective Agreement 2008.

1. Shifts and Shift lengths

a. Shift lengths will be of 12 hour duration.

b. Roster will consist of 3 shifts, being either Friday, Saturday, Sunday or Saturday, Sunday, Monday.

2. Payment

Payment will be at the classification rates detailed in Clause 8.2 of the Collective Agreement 2008.

3. Allowances and penalties

a. Hours worked on Weekends shall be paid at double time.

b. All hours in excess of 11 ordinary hours on the Monday or Friday to be paid at double time.

c. All other overtime to be paid at double time.

4. Public Holidays

All Public holidays will be paid as follows:

a. Public holiday falls on a rostered work day an employee required to work – treble time.

b. Public holiday falls on a rostered work day and employee not required to work – 11 Ordinary hours at a single time.

c. Public Holiday falls on a non-rostered work day – no payment.

d. Week end roster employees shall be entitled to 2 days leave per annum in lieu of working other nominated public holidays. These two days shall dominantly be Christmas day and Boxing Day, unless these fall on a non-rostered day. Employee shall be paid as if at work for these two days.

…

Initially, volunteers will be sought for the weekend roster. All new starters will be offered employment, where a weekend roster of 12 hours 3 days per week it will be included in the offer.

No member of the current LakeCoal workforce will be forced to work a 12 hour weekend roster.

The mine management team will determine who will be offered positions on the weekend roster. This decision will be based on the skills base required to meet the needs of the mine.

Signed for and on behalf of the employees engaged at Chain Valley by the Representative…”

[22] Spaces were provided on the Agreed Document for it to be signed on behalf of the CFMEU, AMWU, ETU and LakeCoal. The copy of the Agreed Document produced by Mr Williams is signed by David McConnell (General Manager), on behalf of LakeCoal, on 19 October 2010, but is not signed by or behalf of the CFMEU, AMWU or ETU. Mr Williams gave evidence, which I accept, that the Agreed Document was not signed by the CFMEU to his knowledge and it was referred to by LakeCoal as the “Agreed” document.

[23] Mr Williams has been responsible for representing the industrial interests of CFMMEU members working at the Chain Valley mine since 2010. Mr Williams was involved in the negotiations for the 2011 Agreement. Mr Williams gave unchallenged evidence, which I accept, that during the time the 2011 Agreement was negotiated and voted on there were two panels of employees working a weekend roster at the Chain Valley mine. Negotiations for the 2011 Agreement commenced in October 2011 and the successful vote took place on 21 December 2011. The first panel of employees working a weekend roster worked a 12-hour day shift on Friday, Saturday and Sunday and never worked on a Monday. The second panel of employees working a weekend roster worked a 12-hour night shift on Saturday, Sunday and Monday. The night shifts commenced between 5pm and 7pm on each of Friday, Saturday and Sunday and finished between 5am and 7am on Saturday, Sunday and Monday respectively.

[24] Mr Williams was the principal negotiator for employees to be covered by the 2011 Agreement. The majority of employees to be covered by the 2011 Agreement were members of the CFMMEU. Other employees covered by the 2011 Agreement were members of the ETU or AMWU. Negotiations for the 2011 Agreement principally occurred with Mr David McConnell, who was the General Manager of the employer, LakeCoal, at the time. 7 Mr David Walker also attended the majority of bargaining meetings and represented LakeCoal.

[25] During bargaining for the 2011 Agreement, the original clause proposed by LakeCoal (on 7 December 2011) in relation to public holidays was in the following terms:

“2.9 Public Holidays

2.9.1 The recognised public holidays are New Year’s Day; Australia Day; Good Friday; Easter Saturday, Easter Sunday, Easter Monday and Easter Tuesday; ANZAC Day; May Day or Labour Day; Queen’s Birthday; Christmas Day; Boxing Day or any other day observed by the public in the particular region in lieu of one of the above days and all other public holidays gazetted for the particular region.

2.9.2 If a public holiday falls on a rostered day, but the employee is not required to work, employees will be paid for that day at the ordinary rate for the number of hours they are ordinarily rostered to work on that day at single time.

2.9.3 If the public holiday does not fall on a rostered day there will be no pay for the day.

2.9.4 For employees who normally work on the weekend roster and the public holiday falls on the weekend, they will be paid at their normal rate of pay. If the public holiday falls on another rostered day they will be paid at the ordinary rate for the day.

2.9.5 If the employee is required to work on a public holiday, they will be paid at double their ordinary rate for the hours worked on the day in addition to the ordinary payment for the public holiday.”

[26] Mr Williams gave evidence that he attended a bargaining meeting with Mr McConnell, Mr Walker, two other LakeCoal employees, Mr Gary Northey and Mr Geoff Armstrong, an ETU delegate, an AMWU delegate, and two employees of LDO Operations, Mr Aspland and Mr Peter Hemphill. LDO Operations provided contract labour to LakeCoal. At the meeting Mr Williams says there was discussion about what a rostered day was, whether it was a day rostered for the individual or a day rostered for the roster. According to Mr Williams, Mr McConnell said words to the effect, “I don’t mind paying weekend roster workers the public holiday. They don’t work under their roster on the Monday or the Friday but I ain’t going to have it included that they are paid otherwise.” Mr Williams then said words to the effect, “They should be paid for all Public holidays like as they cover seven days. That is how they pay them at North Wambo.” There was then discussion about employees working on a weekday roster. Mr Williams said words to the effect, “I accept that for Monday to Friday workers, if you are not working on the Easter Sunday, then you don’t get paid for that public holiday. That should not be the case for the four day weekend roster.” After setting out these conversations in direct speech, Mr Williams’ witness statement includes the following paragraphs: 8

“66. The discussions on this point concluded to the effect of, the persons who work a Weekend roster that their non-working days are Tuesday, Wednesday and Thursday and they would be paid for all public holidays that fell from the Friday to the Monday. For people working the roster that covered Monday to Friday, their non-working days would be the Saturday and Sunday.

67. Mr McConnell, who would do the drafting, indicated he wanted to include a clause surrounding what were the rostered workdays for a particular roster that the employees, on the different types of rosters, would not be paid for if a public holiday fell in those days.”

[27] After this meeting, Mr Williams received a copy of a draft enterprise agreement. Clauses 2.9.2 and 2.9.3 in that draft of the enterprise agreement were in the same terms as the final version of the 2011 Agreement, which was voted on and approved by the Commission. Clauses 2.9.2 and 2.9.3 of the 2011 Agreement provide:

“2.9.2 If a public holiday falls on a rostered work day, but the employee is not required to work, employees will be paid for that day at their ordinary rate for the number of hours they are ordinarily rostered to work that day at single time.

2.9.3 If the public holiday does not fall on a rostered work day for a particular roster there will be no pay for the day. For employees who work Monday to Friday this will be any public holiday that falls on a Saturday or Sunday, and for employees who work weekend roster this will be any public holiday that falls on a Tuesday, Wednesday or Thursday.”

[28] It is apparent from the foregoing that the public holiday provisions in the 2011 Agreement are materially different from the 2008 Agreement.

[29] The differences between the public holiday provisions in the 2011 Agreement and the 2016 Agreement are shown by the following underlining in clauses 2.10.2 to 2.10.4 of the 2016 Agreement:

“2.10.2 Christmas Day and Boxing Day are nonworking days for all employees, for weekend roster employees, if these nonworking days fall on a rostered day off, the employer and the majority of employees affected will agree to observe other day/s in lieu. If this occurs, the day/s agreed upon will be paid as if the employee was at work.

2.10.3 If a public holiday falls on a rostered work day, but the employee is not required to work, employees will be paid for that day at their ordinary rate for the number of hours they are ordinarily rostered to work that day at single time.

2.10.4 If the public holiday does not fall on a rostered work day for a particular roster there will be no pay for the day, those days are as follows; for employees who work Monday to Friday this will be any public holiday that falls on a Saturday or Sunday, and for employees who work weekend roster this will be any public holiday that falls on a Tuesday, Wednesday or Thursday.”

[30] Clauses 2.10.3 and 2.10.4 of the 2016 Agreement are in identical terms to clauses 4.1(c) and (d) of the Agreement. There are some differences in language between clause 2.10.2 of the 2016 Agreement and clause 4.1(b) of the Agreement, in addition to other differences such as to the identification of particular public holidays, but they are not materially relevant to the Dispute.

[31] Mr Williams gave evidence that, based on his experience in the coal mining industry, it is common for enterprise agreements to provide for the payment of public holidays to employees who are not rostered to work, or required to work, on the public holiday.

Submissions

CFMMEU’s submissions

[32] The CFMMEU contends that the Commission should answer the questions for arbitration as follows:

•  Question 1(a) – yes

•  Question 1(b) – 12 hours

•  Question 2(a) – yes

•  Question 2(b) – 9.5 hours

[33] The CFMMEU submits that answering the questions in this manner would be consistent with the wording of the Agreement, the history of its incorporation into the relevant enterprise agreements, the entitlements that fall to coal mining industry workers, and how the clause has been applied and paid in the period from when it was inserted (in materially similar terms) into the 2011 Agreement until the Chain Valley mine was purchased by Delta.

[34] The CFMMEU submits that the Agreed Document contains a public holiday clause that reads differently to the relevant provision that existed at the time in the 2008 Agreement. The Agreed Document used the expression “rostered work day” rather than “who are rostered off”. The CFMMEU points to the fact that the public holiday provision in the 2011 Agreement uses the expression “rostered work day” and is materially different from the public holiday provision in the 2008 Agreement.

[35] The CFMMEU submits that the public holiday provisions in the Black Coal Mining Industry Award 2010 (Award) have the public holiday entitlement attaching to the roster, not to a particular employee. In essence, it is contended that an employee’s entitlement to a public holiday under the Award is based on a rostered operation and not on the days being worked by the particular employee. It is in this context that the CFMMEU relies on the decision of Deputy President Asbury in CFMEU v Wilson Mining Pty Ltd, 9 where the Deputy President observed (at [60]-[63]) that “rostered days off are days when some employees are working and someone not … In short a working day does not attached to particular employees but to a roster which stipulates that work will be performed on that day … effect is that employees who are rostered off get the benefit of the public holidays without losing the benefits of the days off…”

[36] Although the Award does not apply because it has been replaced by the Agreement, the CFMMEU contends that if Delta’s interpretation of clause 4.1 of the Agreement were correct then employees covered by the Agreement would receive less generous public holiday entitlements than employees covered by the Award. The CFMMEU also points to the statutory declarations filed by LakeCoal in the Commission in support of the application for approval of the 2011 and 2016 Agreement respectively. The CFMMEU submitted (mistakenly) that in each statutory declaration, Mr McConnell and Mr Shales declared that the 2011 and 2016 Agreement respectively, did not contain any terms or conditions of employment that were more beneficial than equivalent terms and conditions in the relevant award. Mr McConnell in fact answered “yes” to the question dealing with more beneficial terms and “no” to whether the relevant agreement contained any terms or conditions less beneficial than the reference instrument. Mr Shales also answered “yes” to the former question but unlike Mr McConnel identified “Public Holidays” as a more beneficial term in the 2016 Agreement and answered “yes” to the question about less beneficial terms, but only identified that the 2016 Agreement (unlike the award) did not provide for CPI indexation of the tool & meal allowances. Nonetheless, I understand their submission to be that if Delta’s interpretation is correct then Mr McConnell and Mr Shales should have each identified that the relevant agreement provided less beneficial terms and conditions in relation to public holidays, but they did not do so.

[37] The CFMMEU contends that the reference to a rostered work day in the coal mining industry is a reference to a day that is worked by the roster and not the employees’ work day.

[38] The number of hours worked by an employee on a particular shift at the Chain Valley mine does not vary, and has not varied in the relevant period, from one day to another. Having regard to this context, the CFMMEU submits that the expression “number of hours they are ordinarily rostered to work that day” in clauses 4.1(b) and (e) of the Agreement is a reference to the ordinary rostered hours of work for the employee, not their ordinary hours (i.e. rostered hours less rostered overtime = ordinary hours). It is submitted that the word “ordinary” should be given his natural meaning of customary or normal.

[39] The CFMMEU submits that a rostered work day for an employee working the rotating afternoon/night shift roster is each Monday to Friday. Clause 4.1(c) of the Agreement makes it clear that if a public holiday falls on a rostered work day but the employee is not required to work, then they are to be paid their ordinary rate for the “hours they are ordinarily rostered to work”. The CFMMEU further contends that clause 4.1(d) ensures there can be no confusion as to which days are rostered work days and which days are not. Pursuant to clause 4.1(d), for Monday to Friday workers, Saturdays and Sundays are not rostered work days; for employees who “work weekend roster”, Tuesdays, Wednesdays and Thursdays are not rostered work days. The CFMMEU also says that the employees’ payslips evidence which days of the week are rostered work days and which are not for a particular roster.

[40] Finally, the CFMMEU submits that in arbitrating the Dispute the Commission must perform its functions and exercise its powers in a manner that is “fair and just”, and “promotes harmonious and co-operative working relations”, and by taking into account “equity, good conscience and the merits of the matter”. 10

Delta’s submissions

[41] In summary, Delta contends:

(a) the CFMMEU’s interpretation of clause 4.1 of the Agreement is not harmonious with the Agreement as a whole;

(b) the CFMMEU’s interpretation leads to absurd and anomalous results;

(c) clause 4.1(d) of the Agreement does not provide an entitlement to be paid for a day an employee is never rostered to and never works;

(d) the expression “rostered workday” in clause 4.1(c) means a day that an employee is rostered to work; and

(e) clause 4.1(c) makes it clear that an employee that is never rostered to and never works the day on which the public holiday falls is not paid for that day as they are not ordinarily rostered to work any number of hours that day.

[42] Delta submits that its interpretation of clause 4.1 of the Agreement is consistent with the Agreement as a whole and consistent with the treatment of public holidays under the National Employment Standards in the Act. Such an interpretation, so Delta contends, results in logical outcomes that are easy to understand.

[43] Delta submits that the CFMMEU’s reliance on the Award is misplaced because the Agreement explicitly excludes the operation of the Award. Delta also submits that the decision in CFMMEU v Wilson Mining is distinguishable because it concerns a different enterprise agreement with different provisions concerning public holidays, the enterprise agreement in that case, unlike the present case, must be read in conjunction with the Award, and the mine in that case operated a different roster system.

[44] Delta contends that the Dispute turns solely on the proper interpretation of clause 4.1 of the Agreement. As a relevant contextual matter, Delta points to the fact that the Agreement does not prescribe any particular roster system and provides flexibility for different roster systems to be introduced. Clause 4.1 needs to be interpreted, according to Delta, with this flexibility in mind.

[45] It is submitted by Delta that clause 4.1(b) contains a special provision for Christmas Day and Boxing Day and this special benefit only applies to “the employees affected” from the weekend roster, which indicates that the focus of the provision is not on the roster (as suggested by the CFMMEU) but on the specific employees who are affected. Delta submits that this is consistent with the entitlement to public holidays typically being individually focussed.

[46] Delta submits that clause 4.1(c) is the provision that confers an entitlement to payment to an employee who is not required to work a particular public holiday and it is focused on the individual employee’s circumstances.

[47] Pursuant to clause 4.1(c) of the Agreement, payment for a public holiday is made if “a public holiday falls on a rostered workday, but the employee is not required to work”. Delta submits that an employee is not required to work in the circumstances where they are otherwise rostered to work that day. Delta contends that so much is consistent with the ordinary meaning of the word “workday”, which means “a working day”, 11 “a day on which work is performed as distinguished from a day off”12 and “a day on which work is ordinarily performed”.13

[48] Delta points to the use of the expression “that day” (twice) and the longer expression “ordinarily rostered to work that day” in clause 4.1(c) of the Agreement to submit that the entitlement to payment is specific to the particular day (“that day”), being the individual employee’s rostered workday.

[49] Delta submits that a weekend day shift employee is never rostered to work on a Monday. Monday is not their workday. They are not ordinarily rostered to work that day. They have no entitlement under clause 4.1(c) to payment. This outcome is not changed by clause 4.1(d).

[50] It is submitted by Delta that clause 4.1(d) does not prescribe a payment. Rather it prescribes a circumstance when “there will be no pay for the day”. Clause 4.1(c) must be satisfied for the payment obligation to arise.

[51] Clause 4.1(e) sets out how an employee is paid “if the employee is required to work on a public holiday” and is linked to the employee being “ordinarily rostered to work that day”. Delta contends that clause 4.1(e) reinforces the interpretation given to clause 4.1(c).

[52] Delta submits that, when considered in context, the CFMMEU’s contention that a “rostered work day [in the coal mining industry] is a reference to a day that is worked by the roster and not the employees’ work day” cannot be sustained. Delta contends that such a construction is inconsistent with the particular words and expressions in the Agreement. Notably, Delta submits that if it was intended that employees who are never rostered to, and never work, on the day that happens to be a public holiday, be paid for that day regardless, the Agreement could have said so easily. It does not.

[53] Delta contends that even if the CFMMEU is correct, the consequence would be that any payment under clause 4.1(c) would be zero anyway because the employee has zero ordinary hours on the day in question as they are never rostered to work on that day.

[54] It is submitted by Delta that the Commission should answer the questions for arbitration as follows:

•  Question 1(a): No

•  Question 1(b): Does not arise

•  Question 2(a): No

•  Question 2(b): Does not arise

Consideration

[55] Both parties accept, rightly in my view, that there is ambiguity in clause 4.1 of the Agreement. The ambiguity arises primarily because the expression “rostered workday” is susceptible of more than one meaning. 14 First, it is arguable that the expression has its ordinary meaning such that it is a day on which a particular employee is rostered to work. Secondly, it is arguable that the expression has a particular meaning defined by clauses 4.1(c) and (d), which is different from the ordinary meaning and may include days on which a particular employee never works.

[56] In this case, there is evidence of particular surrounding circumstances which provides some assistance to the task of interpreting the relevant provisions of the Agreement. In particular:

(a) First, there are material differences between the public holiday provisions in the 2008 Agreement and the 2011 Agreement. There are no materially relevant differences, for the purpose of this Dispute, between the public holiday provisions of the 2011 Agreement, the 2016 Agreement and the Agreement. An objective background fact which was known to all parties when the 2011 Agreement was made is that weekend rosters were introduced in 2010. In light of this fact and having regard to the inclusion of the expression “weekend roster” in clause 2.9.3 of the 2011 Agreement, it is clear that the changes made to the public holiday provisions of the 2011 Agreement, as compared with the 2008 Agreement, were objectively intended, at least in part, to address the new circumstance of weekend rosters being introduced into the workplace.

(b) Secondly, it is an objective background fact known to all parties that when the 2011 Agreement was negotiated and made, employees working the weekend day shift roster were working on a Friday, Saturday and Sunday, but never on a Monday. This fact has some significance because it dispels any argument to the effect that when the relevant public holiday provisions were negotiated and agreed upon, all employees working on a weekend roster always, or sometimes, actually worked on a Friday, Saturday, Sunday and Monday. Had this been this case, it would have provided some support for the contention that a “rostered workday” within the meaning of clause 4.1 is a day on which an employee is actually rostered to work.

(c) Thirdly, a relevant objective background fact known to all parties at all times since at least when weekend shifts were introduced in the Chain Valley mine in 2010 is that the number of hours an employee on a particular roster is rostered to work each day on that roster is the same. For example, employees working the weekend roster have always worked 12-hour shifts. Employees working a weekday roster work 9.5 hours each day. The significance of this fact is explained below.

[57] I have not taken into account the following matters in construing clause 4.1 of the Agreement:

•  the discussions between Mr Williams and representatives of LakeCoal in the negotiations for the 2011 Agreement. 15 First, there is no suggestion in the evidence that the content or outcome of the discussions was communicated to the employees who voted on the 2011 Agreement. Secondly, there were other bargaining representatives involved in the negotiations (ETU and AMWU) and their views are unknown. Thirdly, in paragraph [66] of his witness statement in chief, Mr Williams stated that the “discussions on this point concluded” with a particular effect.16 I accept that paragraph [66] is Mr Williams’ subjective understanding of the outcome of the negotiations, but the evidence does not reveal the full basis of his understanding, nor does it reveal any meeting of the minds. The common intention of the parties must be identified objectively, not by reference to the subjective intentions or expectations of one or more parties;17

•  the earlier draft of the public holiday provision put forward by LakeCoal in the negotiations for the 2011 Agreement. 18 It is not clear what was meant by the expression “another rostered day” in clause 2.9.4 in that draft. All that can be said is that the parties sought to give the expression “rostered day” a clearer meaning when they drafted and agreed on clauses 2.9.2 and 2.9.3 of the 2011 Agreement;

•  the statutory declaration made and filed in support of the 2011 Agreement. It sets out the views of the maker of the declaration as to matters such as whether the 2011 Agreement contained terms and conditions of employment that were less beneficial than the underlying award. However, those subjective views are not relevant to the proper construction of the 2011 Agreement; 19

•  post-agreement conduct in the form of making payments under the public holiday provisions of the 2011 Agreement, 2016 Agreement and the Agreement before Delta made changes to those practices after it acquired the Chain Valley mine. There is no clear evidence to support a finding that the parties acted upon a common understanding as to the meaning of the relevant provisions and not for other reasons, such as common inadvertence as to its true meaning; 20

•  the payslips of employees which show the days on which they were rostered to work at various times after the making of the 2011 Agreement, 2016 Agreement and the Agreement. The payslips set out the employer’s understanding of each employee’s rostered workdays but do not assist in the proper construction of the expression “rostered workday”. Further, the making and distribution of these payslips is another form of post-agreement conduct and there is no clear evidence to support a finding that the parties acted upon a common understanding as to the meaning of the relevant provisions and not for other reasons, such as common inadvertence as to its true meaning;

•  even where an enterprise agreement such as the Agreement excludes the operation of the underlying award, 21 I accept that there are some circumstances where the underlying award can be a relevant contextual consideration to the task of interpreting the enterprise agreement.22 However, this is not such a case. The Award uses materially different expressions from the Agreement to determine an employee’s entitlement to payment for a public holiday on which they do not work. Parties to an enterprise agreement are free to bargain for better, the same or worse conditions than an underlying award, provided all employees are better off overall under the agreement compared to the award. Whether or not they have done so turns primarily on the language used in the agreement; and

•  terms and conditions of employment in the coal mining industry. Although it is quite common for enterprise agreements that apply in the coal mining industry, particularly in the Hunter Valley, to confer on employees more generous entitlements on the question of public holidays than the National Employment Standards (NES), there are other enterprise agreements in the same industry which do not do so. 23 Further, although the expressions “rostered day off” and “non-working day” are defined in the Award and commonly used in the coal mining industry, the Agreement uses different expressions, (“rostered workday” and “not … a rostered work day”) and contains particular provisions which are directed to the meaning of those expression. In those circumstances, the text used in the Agreement, construed in context and having regard to its purpose, is a surer guide to the proper construction of the provisions in question in this Dispute.

[58] I agree with Delta’s submission that the decision in CFMMEU v Wilson Mining 24 is distinguishable from the present case because it concerns a different enterprise agreement with different provisions concerning public holidays, the enterprise agreement in that case, unlike the present case, must be read in conjunction with the Award, and the mine in that case operated a different roster system.

[59] In construing clause 4.1 of the Agreement, there is no doubt that the Act is a relevant contextual consideration, because it provides the legislative framework pursuant to which the Agreement was made and in which it operates. 25 Further, there is no doubt that part of that legislative framework includes the NES and, relevantly for the purposes of this case, if an employee does not have ordinary hours of work on a particular public holiday, the employee is not entitled to payment under the NES.26 Pursuant to section 55(4)(b) of the Act, an enterprise agreement may include a term that supplements the NES (but only to the extent that the effect of the term is not detrimental to an employee in any respect, when compared to the NES). Thus, if, on the proper construction of clause 4.1 of the Agreement, employees have an entitlement to be paid for a public holiday on which they do not have ordinary hours of work, then the Agreement will supplement the NES in a manner that is not detrimental to an employee. Ultimately, it is a question of interpreting the words of the Agreement, in context and having regard to relevant and admissible surrounding circumstances, to determine whether the bargain made by the parties confers on employees a public holiday benefit which exceeds the minimum standard required by the Act.

[60] I accept, as submitted by Delta, that a relevant contextual matter is the fact that the Agreement does not prescribe any particular roster system and provides flexibility for different roster systems to be introduced. Clause 4.1 needs to be interpreted with this flexibility in mind.

[61] Turning next to the text of clause 4.1(a) of the Agreement. It “recognises” particular public holidays. Clause 4.1(b) establishes a special rule for Christmas Day and Boxing Day. They are “nonworking days for all employees”. The clause then distinguishes between “weekend roster employees” and other (weekday roster) employees: “For weekend roster employees, if Christmas Day and/or Boxing Day fall on a non-rostered day, the employer and the majority of the employees affected will agree to observe other day/s in lieu and will be paid as if the employee was at work”. Contrary to Delta’s submissions, this part of clause 4.1(b) focuses on the type of roster an employee is working, namely a weekend roster or a weekday roster, not the circumstances of the particular employee.

[62] The purpose of clause 4.1(c) of the Agreement is to confer an entitlement on employees to be paid, in particular circumstances, for a public holiday on which they are not required to work. In order for the entitlement to arise, the public holiday must fall on a “rostered workday”. Clause 4.1(c) does not define or describe what is meant by a “rostered workday”. For that, one must read on to clause 4.1(d). That provision does two things; first, it makes clear what is implied by clause 4.1(c), namely that an employee is not entitled to payment for a public holiday if the public holiday “does not fall on a rostered work day”; secondly, it defines what is not a “rostered workday”, as is apparent from the words “those days are as follows” and “this will be” in clause 4.1(d). Clause 4.1(e) sets out the payment rule that applies if an “employee is required to work on a public holiday”.

[63] For the purpose of determining whether an employee who is not required to work on a public holiday is entitled to payment for that day, it is clear that clause 4.1 of the Agreement establishes two categories of days – “rostered workdays” and not rostered workdays. The entitlement to payment only arises if the public holiday falls on a “rostered workday”. Given that clause 4.1(d) defines what are not rostered workdays for a particular roster, the remainder of the days in a week must be the “rostered workdays” for that particular roster. It follows that:

•  the expression “rostered workday” in clause 4.1 has a particular meaning defined by paragraphs (c) and, in particular, (d), as opposed to its ordinary meaning of a day on which an employee is actually rostered to work;

•  for employees who work a Monday to Friday roster, their not rostered workdays are Saturday and Sunday and their “rostered workdays” are Monday, Tuesday, Wednesday, Thursday and Friday; and

•  for employees who work a weekend roster, their not rostered workdays are Tuesday, Wednesday and Thursday and their “rostered workdays” are Friday, Saturday, Sunday and Monday.

[64] Clause 4.1 does not define the expression “weekend roster”. Its ordinary meaning is a roster on which an employee customarily or normally works on a weekend. I see no reason to give the expression “weekend roster” anything but its ordinary meaning in clause 4.1 of the Agreement. Accordingly, employees who work either the weekend day shift roster on Friday, Saturday and Sunday or the weekend night shift roster on Saturday, Sunday and Monday nights work a “weekend roster” within the meaning of clause 4.1 of the Agreement. It follows that, within the meaning of clause 4.1 of the Agreement, the “rostered workdays” for those weekend roster employees are Friday, Saturday, Sunday and Monday. It is also apparent from this analysis of the scheme of clause 4.1 that it focuses on the “particular roster” an employee works, rather than the days a particular employee works on a particular roster. The “particular roster” is either a Monday to Friday roster or a weekend roster. I accept that if Delta implements some new roster arrangements in accordance with the Agreement in the future, that it may be a difficult task to determine how those new roster arrangements interact with clause 4.1, however, that is a hypothetical controversy and not one which could not be overcome by a proper analysis of the circumstances, if they arise.

[65] The next point to consider is whether particular circumstances give rise to a payment obligation under clause 4.1(c). For example, consider a weekend day shift employee who works day shift each Friday, Saturday and Sunday, but never works on a Monday. If there is a public holiday on a Monday, according to the reasoning set out above that day falls within the definition of a “rostered workday” for such an employee. Pursuant to clause 4.1(c), if the employee in question is not required to work on the Monday, they are entitled to “be paid for that day at their ordinary rate for the number of hours they are ordinarily rostered to work that day at single time”. Delta contends that for such an employee the “number of hours they are ordinarily rostered to work that day” is zero because they never work on a Monday. Whether that argument is correct turns on the proper construction of the expression “that day” in clause 4.1(c). It may mean, as Delta contends, the particular “rostered workday” on which the “public holiday falls” or, as the CFMMEU contends, “a rostered workday” (as defined) in a particular type of roster. The constructional choice is not straightforward. Each argument has some merit. In my view, the CFMMEU’s contention is the preferable construction for the following reasons:

•  As set out above, clauses 4.1(c) and, in particular, (d) define the expression “rostered workday” in a particular way which is both different from the ordinary meaning of that expression and focuses on the type of roster an employee works, rather than the particular days on which an individual employee works in a particular roster. This suggests that the focus is on “a rostered workday” in a particular type of roster, as distinct from the particular day on which the “public holiday falls”.

•  Having regard to the fact that the Agreement defines the expression “rostered workday” in such a way as to include a day on which a particular employee never works (for example, a Monday for a weekend roster employee working 12 hour shifts on Friday, Saturday and Sunday) and then imposes an obligation in clause 4.1(c) that the “employee will be paid for that day”, it would be an odd outcome to conclude that the employee was not entitled to any payment for “that day” because they never actually work on a day which is, by definition, one of their “rostered workdays”. Such an outcome would be contrary to the overall scheme put in place by clause 4.1.

•  In circumstances where each employee on a particular roster is, and at all materially times always has been, rostered to work the same number of hours on each day of their roster, there is no difficulty in working out the “number of hours they are ordinarily rostered to work” on “a rostered workday”. The situation may have been quite different if the workplace had been one in which the number of hours an employee was rostered to work on a roster varied from day to day, in which case it would either be impossible or problematic to determine the “number of hours they are ordinarily rostered to work” on “a rostered workday”.

•  The task of determining the number of hours an employee is “ordinarily rostered to work” on a rostered workday pursuant to clause 4.1(c) of the Agreement cannot be answered by simply looking at the roster for that employee. So much is clear because clause 4.1(c) is dealing with a circumstance in which the employee is not actually required to work on the public holiday in question. Clause 4.1(c) grapples with this difficulty by focusing the inquiry on the number of hours the employee is “ordinarily rostered to work that day”. The number of hours a weekend roster employee is ordinarily rostered to work on “a [or any] rostered workday” is 12. The number of hours a weekday roster employee is ordinarily rostered to work on “a [or any] rostered workday” is 9.5.

[66] Drawing this analysis together and applying it to the issues in dispute in this case:

(a) for an employee who works a weekend day shift roster, if a public holiday falls on a Monday, that day is a “rostered workday” within the meaning of clause 4.1, even though the employee never actually works on a Monday. Assuming the employee is not required to work the Monday in question, clause 4.1(c) requires them to be paid for that day at their ordinary rate for the number of hours they are ordinarily rostered to work on a rostered workday. Weekend roster employees are always rostered to work 12 hours on their rostered workdays. Accordingly, the employee is entitled to 12 hours’ pay at their ordinary rate;

(b) for an employee who works a weekend night shift roster, if a public holiday falls on a Friday or a Monday, that day is a “rostered workday” within the meaning of clause 4.1, even though the employee only works part of a night shift each week on a Friday and a Monday. Assuming the employee is not required to work the Friday or Monday in question, clause 4.1(c) requires them to be paid for that day at their ordinary rate for the number of hours they are ordinarily rostered to work on a rostered workday. Weekend roster employees are always rostered to work 12 hours on their rostered workdays. Accordingly, the employee is entitled to 12 hours’ pay at their ordinary rate; and

(c) for an employee who works a rotating fortnightly Monday to Thursday afternoon shift and Tuesday to Friday night shift roster, if a public holiday falls on a Friday of the first week of their fortnightly roster, that day is a “rostered workday” within the meaning of clause 4.1, even though the employee does not work on that Friday. Assuming the employee is not required to work the Friday in question, clause 4.1(c) requires them to be paid for that day at their ordinary rate for the number of hours they are ordinarily rostered to work on a rostered workday. Weekday roster employees are always rostered to work 9.5 hours on their rostered workdays. Accordingly, the employee is entitled to 9.5 hours’ pay at their ordinary rate.

[67] As is apparent from the foregoing reasoning, I do not accept Delta’s contention that the CFMMEU’s interpretation of clause 4.1 of the Agreement is not harmonious with the Agreement as a whole, nor would it lead to absurd and anomalous results.

Conclusion

[68] For the reasons given, I determine the questions for arbitration as follows:

•  Question 1(a) – yes

•  Question 1(b) – 12 hours

•  Question 2(a) – yes

•  Question 2(b) – 9.5 hours

DEPUTY PRESIDENT

Appearances:

Mr K Endacott, Industrial Officer of the CFMMEU,for the Applicant
Mr J Mattson, solicitor, for the Respondent

Hearing details:

2020.
Newcastle (by videoconference):
21 October.

Printed by authority of the Commonwealth Government Printer

<PR724180>

 1   Ex A1 at [29]

 2   Ex A1 at [30]

 3   [2017] FWCFB 3005

 4 [2020] FCAFC 123 at [65]

 5   [1993] FCA 51

 6   [2006] FCA 616; (2006) 151 FCR 513 at 520 [31]

 7   Ex A2 at pp 5 & 49

 8   Ex A1 at [66]-[67]

 9   [2019] FWC 100

 10 ss 577(a) and (d) & 578(b) of the Act

 11   Macquarie Dictionary, 5th edition

 12   Merriam-Webster Dictionary

 13   Oxford Shorter Dictionary

 14   Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1981-1982) 149 CLR 337 at 350 per Mason J; Grocon Constructors Pty Ltd v Construction, Forestry, Mining and Energy Union AG812496 PR924146 at [20] per Ross VP citing Re: Victorian Public Transport Enterprise Agreement 1994, Print M2454, 7 June 1995 per Ross VP, Polites SDP and Grimshaw C at p. 4; Re CFMEU Appeal, Print R2431, 25 February 1999 per Harrison SDP, Drake DP and Larkin C at para 13; Re Tenix Defence Systems Pty Limited Certified Agreement 2001-2004, Print PR917548, 9 May 2002 per Ross VP, O'Callaghan SDP and Foggo C

 15   See paragraph [26] above

 16   Ibid

 17   Berri at [114(3)]

 18   See paragraph [25] above

 19   Berri at [114(3)]

 20   Shop Distributive and Allied Employees’ Association v Woolworths Ltd [2006] FCA 616; (2006) 151 FCR 513 at 520 [31]

 21   Clause 1.6 of the Agreement

 22   See, for example, CFMMEU v North Wambo[2019] FWC 4732 at [31]-[34]

 23   Ex R1 at [13]-[14]

 24   [2019] FWC 100

 25   AWU v MC Labour Services Pty Ltd[2017] FWCFB 5032 at [38]; applying Berri at [114(1)(iii)]

 26 s 116 of the Act