Construction, Forestry, Maritime, Mining and Energy Union v Port Kembla Coal Terminal Limited

[2021] FWC 5626

[2021] FWC 5626

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Maritime, Mining and Energy Union
v
Port Kembla Coal Terminal Limited
(C2021/1801)

COMMISSIONER RIORDAN SYDNEY, 13 OCTOBER 2021

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

[1] On 31 March 2021, the Mining and Energy Division of the Construction, Forestry, Maritime, Mining and Energy Union (the Applicant) lodged an application (the Application) pursuant to s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute with Port Kembla Coal Terminal Limited (the Respondent). The dispute relates to the interpretation and application of clause 14.3 of the Port Kembla Coal Terminal Limited Enterprise Agreement 2019 (the Agreement).

[2] A number of unsuccessful Conferences were conducted in this matter. The Telephone Hearing took place on 6 September 2021.

[3] The parties agreed that the Question for Arbitration was:

In respect of Flexible Dayworkers, do the Respondent’s current rostering practices comply with the Respondent’s obligations under clause 14.3.1 of the Agreement?

[4] At the hearing the Applicant was represented by Mr J Patrick, National Legal Officer for the Applicant. Leave was granted to allow Mr S Woodbury, Partner, at Ashurst Australia, to appear for the Respondent.

[5] Mr Daniel Owen, an Electrical Tradesman in the Flexible Dayworker Trades Workgroup, gave evidence for the Applicant at the Hearing. Mr Matthew Handicott, Maintenance Superintendent, and Ms Rebecca Nasta, Human Resources Lead, gave evidence for the Respondent.

Relevant Provisions of the Agreement

[6] Clause 14.1 sets the ordinary hours of work for employees, as follows:

“14.1 Ordinary Hours

14.1.1 The Ordinary Hours of work of Employees shall be worked over the four week roster cycle and are listed below. Such hours shall be worked according to rosters.

(a) Flexible Dayworker 35 hours per week

…

(d) Flexible Dayworkers Ordinary Hours worked in accordance with the notional roster of the Employee. As adjusted between the starting time of 6.00am and finishing time of 10.00pm Monday to Friday with approval by Line Manager.”

(My emphasis)

[7] Clause 14.3 - Roster Arrangements - sets out matters pertaining to the Roster Arrangements of Flexible Dayworkers. Relevantly, it provides:

“14.3 Roster Arrangements

14.3.1 Flexible Dayworkers

(a) Notional days for Flexible Dayworkers are 7 hours resulting in a notional 35 hour, 5 day week. Notional hours will also apply for payment purposes.

(b) Flexible Day workers will be entitled to a 30-minute unpaid meal break.

(c) Where the Company requests the Flexible Dayworker to work through their meal break, the meal break will be paid.

(d) On any day on which he or she works, a Flexible Dayworker may work between a minimum of four hours to a maximum of sixteen hours with approval of their Line Manager. Exceptions to the length of any work day may be approved for specific approved projects or tasks.

(e) A Flexible Dayworker must work between a minimum of three and maximum of five notional days per week.

(f) Each Employee will roster their working days in conjunction with their workgroup and approved by their Line Manager.

(g) The Line Manager will approve the rosters of Flexible Dayworkers considering the operational needs of the business as well as family and caring responsibilities of the Employee.

(h) Rosters will be entered into the timekeeping system a week in advance and will be approved by the Line Manager.

(i) Management of Additional Hours will be in accordance with VERA as outlined in Clause 14.7 of this Agreement. Accordingly, there is no payment for Additional Hours worked, nor any entitlement to meal payments or penalty rates.

(j) The Ordinary Hours worked by a Flexible Dayworker will be reconciled over every four week cycle.

(k) For the purpose of reconciling the four week roster cycle (140 hours), full shifts for which the Flexible Dayworker is entitled to paid leave will count as 7 hours.”

(My emphasis)

[8] Clause 7.3 provides for Consultation about changes to rosters or hours of work:

“7.3 Consultation about changes to rosters or hours of work

7.3.1 Where the Company proposes to change an Employee’s regular roster or ordinary hours of work, the Company must consult with the Employee or Employees affected and their Employee / Union Representatives, if any, about the proposed change. The Company must:

(a) Provide to the Employee or Employees affected and their Employee / Union Representatives, if any, all relevant information about the proposed change, including any adjustment to the Annualised Rates, provided that the Company is not required to disclose confidential information the disclosure of which would be contrary to the Company’s interests;

(b) Invite the Employee or Employees affected and their Employee / Union Representatives, if any, to give their views about the impact of the proposed change (including any impact in relation to their family or caring responsibilities);

(c) Commence the consultation as early as practicable; and

(d) Give prompt consideration to any views about the impact of the proposed change that are given by the Employee or Employees concerned and/or their Employee / Union representatives.

7.3.2 The requirement to consult under this clause does not apply where an Employee has irregular, sporadic or unpredictable working hours.

7.3.3 These provisions are to be read in conjunction with other provisions of this Agreement concerning the scheduling or work and notice requirements.”

(My emphasis)

Background

[9] The Respondent operates a coal export facility in the Illawarra Region of New South Wales, which services coal mining clients exporting coking and steaming coal to international customers. Coal is transported to the port facility by both road and rail and then stockpiled before being loaded for shipping. The facility currently operates 24 hours per day, seven days per week. 1

[10] To meet the operational requirements of the facility, the Respondent undertakes long-term planning of its preventive maintenance calendar, 2 including planning the necessary labour to support the maintenance program. The Respondent’s major equipment maintenance days are programmed on Tuesdays, Wednesdays and Thursdays, creating a maintenance workload peak between Tuesday and Thursday. Relevantly, the Respondent requires its workforce to be rostered to work on those days to meet its operational requirements.3

[11] Customer schedules can also be altered at short notice due to external factors. The Respondent therefore requires flexibility to plan and roster its workforce to meet these contingencies.

[12] The majority of the Respondent’s employees are covered by the Agreement. Employees covered by the Agreement are engaged as either Flexible Dayworkers (the subject of this dispute) or as Shiftworkers. The Respondent annexed to its submissions rosters currently worked by the Flexible Dayworkers, which it stated were developed after extensive consultation with employees and the CFMMEU following trials of a number of other roster patterns.

[13] The process by which the current rosters were developed is summarised as follows:

(a) The Respondent engaged in extensive consultation with employees as to their individual family and caring responsibilities and views on a default roster to be applied for Flexible Dayworkers;

(b) The Respondent then developed a default four week, 140 hour roster cycle to align the facility's capacity with the maintenance outage pattern, operational needs and to optimise Flexible Dayworker productivity (ie ensuring that the bulk work hours occur during operational peaks);

(c) the default roster described in (b) is capable of being varied by request on an individual employee basis by a Flexible Dayworker. To do this, they must complete an Absence Request Form (which if granted allows for variations to the default roster). The Flexible Dayworker's Line Manager will assess the request and determine whether or not it is to be granted, based on the balance of the operational needs and the family and caring responsibilities of the employee;

(d) if a Line Manager approves the roster variation, the variation to the default roster is entered into the timekeeping system one week in advance. The employee will then receive confirmation of the outcome of the request.

[14] It is not in dispute that the Respondent has accommodated requests for variations to the Current Rosters, but could not advise the Commission how many variation requests had been refused and for what reason.

[15] The Respondent submitted that their rostering practices are in compliance with their obligations under the Agreement.

Applicant’s Submissions

[16] For context, the Applicant provided the following summary of the Respondent’s rostering practices.

[17] The Applicant noted that it is common for an enterprise agreement to provide different terms and conditions of employment for different groups of employees and submitted that, in these circumstances, an enterprise agreement must assign the employees into different categories and identify some mechanism for allocating the employees into those categories. 4 The Applicant submitted that the Agreement provides for two modes of rostering; and the mode relevant to this dispute, applies to Flexible Dayworkers. The Applicant submitted that for the purposes of rostering, the Agreement does not differentiate between Flexible Dayworkers, therefore, the process for rostering all Flexible Dayworkers must be the same.

[18] The Applicant submitted that there are five Flexible Dayworker workgroups at Port Kembla Coal Terminal Limited (Company):

a. Flexible Dayworker Trades; and,

b. Flexible Dayworker Operators; and,

c. Flexible Dayworker Reliability Trade; and,

d. Flexible Dayworker Store Controller; and,

e. Flexible Dayworker Administration Assistance. 5

[19] The Applicant submitted that the Company has assigned employees who work in the Flexible Dayworker Trades Workgroup and the Flexible Dayworker Operators Workgroup to work either a nine-day fortnight or a four day week. 6 If an employee who works in the Flexible Dayworker Trades Workgroup and the Flexible Dayworker Operators Workgroup wants to vary their roster, they must complete an Absence Request Form7 and submit it to their supervisor for approval.8

[20] The Applicant submitted that, in accordance with the Agreement, employees in the Flexible Dayworker Reliability Trades Workgroup would complete an excel spreadsheet outlining their roster for the coming week. The Applicant provided a sample excel spreadsheet which had been distributed by the Company to employees in the Flexible Dayworker Reliability Trades Workgroup at the commencement of the Agreement. 9 Once completed, the Flexible Dayworker Reliability Trades Workgroup submitted their roster to their supervisor for approval.10

The Respondent’s obligations under clause 14.3.1 of the Agreement

[21] The Applicant submitted that the correct construction of clause 14.3.1 must be established. In this regard, the Applicant cited the principles of construction outlined by a Full Bench of the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited (Berri). 11

[22] The Applicant submitted that in accordance with Berri, it is first necessary to determine whether the Agreement has a plain meaning or whether it is susceptible to more than one meaning. The Applicant submitted that to determine the Agreement’s plain meaning, one must look to the ordinary meaning of the words, read as a whole and in its industrial context and purpose. 12

The text of clause 14.3.1

[23] The Applicant submitted that in plain language, clause 14.3.1 of the Agreement outlines the permissible rostering process concerning all Flexible Dayworkers, which is as follows:

a. Weekly and in conjunction with their workgroup, Flexible Dayworkers are to develop their roster.

b. The Flexible Dayworkers’ roster will provide that the employee will work three to five days a week and may work between four and sixteen hours per workday.

c. The Flexible Dayworker is to submit their roster to their manager.

d. The Flexible Dayworkers’ manager will determine whether the roster is satisfactory based on the Company’s operational requirements and the Flexible Dayworkers’ family and caring responsibilities.

[24] The Applicant submitted that clause 14.3.1 exhibits no ambiguity. It submitted that clauses 14.3.1 d), f), g) and h) establish a ‘bottom-up’ rostering process, whereby employees develop a roster with their workgroup on a weekly basis and submit that roster to their manager for approval. The Applicant submitted that in equally unambiguous language, clauses 14.3.1 e) and j) place limits on the employees’ right to roster themselves.

[25] The Applicant submitted the employees’ ability to roster themselves is clarified by contrasting the language used in clauses 14.3.1 d) and 14.3.1 e). The Applicant submitted that clause 14.3.1 d) contains the ‘permissive model verb’, “may”, and is beneficial to Flexible Dayworkers as it allows the Flexible Dayworker to choose how many hours they want to work on a given workday. However, the Applicant submitted this flexibility is tempered, as the Agreement recognises that the right for employees to roster themselves is qualified by the ultimate approval of the proposed roster by the manager. The Applicant submitted that the use of the ‘restrictive model verb’ “must” in clause 14.3.1 e) mandates that Flexible Dayworkers will work between three and five days a week. Clause 14.3.1 e) is therefore not beneficial to employees and has not been tempered by managerial oversight.

[26] The Applicant submitted that clause 14.3.1 a) provides for a notional daywork roster. The Macquarie Dictionary defines notional as relating to or expressing a notion or idea. 13 The Applicant submitted therefore, the ordinary meaning of ‘notional’ suggests that the roster contained in clause 14.3.1 a) is the starting point for developing the Flexible Dayworker’s actual roster. It submitted that when read as a whole, clause 14.3.1 provides a Flexible Dayworker with a qualified right to roster themselves. In conjunction with their workgroup, a Flexible Dayworker is to create a roster that will apply to the Flexible Dayworker, subject to the approval of their manager.

The context of clause 14.3.1

[27] The Applicant submitted that in accordance with Berri, when interpreting an enterprise agreement, the relevant contextual considerations include:

a. the text of the enterprise agreement viewed as a whole; and,

b. the disputed provision’s place and arrangement in the agreement; and,

c. the legislative context under which the agreement was made and in which it operates.

[28] The Applicant submitted that in the Agreement, ‘Flexible Dayworker’ is a “term of art”. 14 Clause 1 of the Agreement defines Flexible Dayworker as:

“…an employee who works the notional Daywork roster but can adjust their starting or finishing times and the duration of the shift to meet individual and operational requirements with line manager approval.” 15

[29] The Applicant submitted that the Agreement’s definition of Flexible Dayworker reinforces the plain language interpretation of clause 14.3.1, as provided above. It submitted that the definition provides that a Flexible Dayworker is to work the notional daywork roster but that they have the right to vary that roster, which the Applicant submitted reinforces that the notional daywork roster is the starting point for a Flexible Dayworker to develop their roster.

[30] However, the definition does not clarify the process by which a roster is to be developed. In this regard, the Applicant referred to clause 14.3.1 of the Agreement.

[31] The Applicant submitted that Berri provides the Agreement’s framework as a relevant contextual consideration when interpreting an enterprise agreement. The Applicant submitted that a ‘consultation clause’ is a mandatory term in an enterprise agreement; and as a mandatory term, the Commission should give it minimal weight when interpreting clause 14.3.1.

[32] The Applicant submitted that consultation clauses are beneficial to employees 16 and that it would be illogical for a beneficial clause of an agreement to be used to read down another beneficial clause of that agreement.

[33] The consultation term is provided at clause 7 of the Agreement. The Applicant highlighted that clause 7.3 provides “where the Company proposes to change an Employee’s regular roster or ordinary hours of work, the Company must consult with the employee.” The Applicant submitted that clause 14.3.1 provides a rostering process by which an employee initiates the change of their roster, and therefore clause 7 has no work to do.

[34] The Applicant submitted that clause 7.3.3 provides that the consultation obligation is to be read with other provisions of the Agreement that deal with the ‘scheduling of work.’ As the Company cannot change the employee’s roster, the Applicant submitted that the consultation obligation has little bearing on the correct construction of clause 14.3.1.

[35] For the purposes of interpretation, the Applicant submitted that if the Agreement has a plain meaning, the Commission should not consider evidence of the surrounding circumstances that contradict the plain language of the Agreement. 17 It submitted that the admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which both parties knew and the subject matter of the contract. The Applicant submitted that the Commission should distinguish evidence of objective facts from the evidence of the parties’ subjective intentions, such as the parties’ statements and actions, which reflect their actual intentions and expectations.18 Further, the Applicant noted that in Berri, the Full Bench accepted that evidence of objective background facts would include evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties.19

[36] In this regard, the Applicant submitted that on 16 April 2019, the Agreement was endorsed by a majority of the Company’s workforce. On 8 April 2019, the Company provided to the workforce a document titled “Explanatory Note”, which the Applicant submitted, in the words of the Company’s former General Manager, was provided “to ensure that they were able to make an informed decision on the Agreement”. 20 The Applicant submitted that the Explanatory Note explains that under the Agreement, Line Managers are to take on several matters previously managed by the team, including approving roster arrangements. The Explanatory Note of clause 14.3 outlines that a Flexible Dayworker’s roster is to be organised

in conjunction with their workgroup, approved by their Line Manager and entered in the timekeeping system a week in advance by the Line Manager. 21 The Applicant submitted that it is clear from the Explanatory Note that the Line Manager approves but does not author a Flexible Dayworker’s roster. The Applicant submitted that per the plain language meaning of clause 14.3.1 the Flexible Dayworker develops their roster, and the Line Manager approves that roster.

[37] The Explanatory Note stated:

“EXPLANATORY NOTE

Port Kembla Coal Terminal Limited

Port Kembla Coal Terminal Limited (Company) and employee bargaining representatives have negotiated a new proposed Port Kembla Coal Terminal Limited Enterprise Agreement 2019 (2019 Agreement). A copy of the proposed 2019 Agreement is available to all employees.

An explanation of the terms contained in the proposed 2019 Agreement is set out at Annexure A to this note.

A summary of the key features of the proposed 2019 Agreement is set out below.

KEY AGREEMENT FEATURES

Period of Operation: The 2019 Agreement will come into effect seven days after it is approved by the Fair Work Commission (FWC), with a nominal expiry date four years after this date.

Scope: The 2019 Agreement has the same scope as the predecessor Port Kembla Coal Terminal Limited Enterprise Agreement 2012 - 2015 (2012 Agreement). The roles covered by the 2019 Agreement are classified in three streams:

• Operator

• Trade

• Technical/Support

Annualised Rates of Pay: Permanent and fixed-term Employees will be paid an Annualised Rate of pay, as was the case under the 2012 Agreement. The Annualised Rate of pay includes compensation for all applicable allowances, annual leave loading, Rostered Overtime, Additional Hours, shift penalties and public holiday penalties (except public holiday penalties for operations on Christmas Day). The Annualised Rate for each Grade has been calculated by adding the applicable allowances, loadings, overtime and penalty rates to the Special Purpose Rate, which is the base rate for the Employee's Grade. The Special Purpose Rates for each Grade greatly exceed the minimum wages under the relevant modern awards.

Pay Increases: The 2019 Agreement includes a total 10% pay increase over the life of the Agreement. The parties agreed that the pay increases will become effective as follows:

(a) 5% - from the first full pay period after the approval of the 2019 Agreement by FWC, backdated to the date the 2019 Agreement was made (being the date on which a majority of the Employees who cast a valid vote approved the 2019 Agreement)

(b) 3% - from the first full pay period 12 months after the approval of the 2019 Agreement by FWC

(c) 2% - from the first full pay period 24 months after the approval of the 2019 Agreement by FWC

(d) No increase applying in the last year of the nominal term of the 2019 Agreement

Payment of Wages: Wages will be paid on a fortnightly basis. On the first full pay period after the approval of the 2019 Agreement by the FWC, the Company will pay Employees, other than casuals, a one-off payment of one week's pay at the relevant Annualised Rate to assist with the transition to fortnightly pay.

Workplace Change and Consultation: The Company will consult workers where a decision has been made to introduce a major change that is likely to have significant effects on employees, and where a change is proposed to an Employee's regular roster or ordinary hours of work.

Employment Security: The Company will not terminate the employment of an Employee classified as a Trade or Operator on the ground of redundancy in order to replace the Employee with a contractor in the same position, except to perform landscaping and non-core cleaning work.

The Company will not terminate the employment of an Employee in a role which is not a Trade or Operator role in order to replace the Employee with a contractor unless it has taken all reasonable steps to redeploy the Employee. These include calling for volunteers for redundancy, firstly within the Employee's own classification stream, and then within the Trade and Operator stream. If a vacancy arises as a result, the Company will redeploy the Employee to the vacant role, provided they can perform the role competently and safely with reasonable training.

Role of Line Managers: With the removal of the team system, the Leave Review Group the Training Review Committee and the Team Management Committee, Line Managers are now responsible for a range of matters that were previously managed by the team. These include approving leave, roster and step up arrangements, and unplanned absence coverage, administering, coordinating and approving VERA, authorising training and monitoring the induction of new Employees. The Line Managers are also responsible for conducting performance management and disciplinary procedures in accordance with Company policy. The Discipline procedure in the 2012 Agreement has not been included in the 2019 Agreement as it now forms part of Company policy.

Family and Domestic Violence Leave: All Employees (including casuals) are entitled to up to 5 days unpaid leave per year to deal with family and domestic violence. This is a new entitlement, which is similar to provisions in the relevant modern awards.

Right to Request Casual Conversion: Casual Employees engaged by the Company on a regular basis are entitled to request that their employment be converted to full-time or part-time employment. The Company may only refuse the request on reasonable business grounds and after there has been consultation with the casual Employee. This is a new entitlement, which is similar to provisions in the relevant modern awards.

Unplanned Absence Coverage: This new clause sets out the process for selecting and compensating Employees who attend for work to assist with unplanned leave coverage. Employees who perform unplanned absence coverage may elect to take either:

• the appropriate VERA and receive an incentive payment of $300 per full or part shift

worked; or

• a payment of $800 for an Operator or $900 for a Tradesperson for a 12 hour shift (prorate if part of a shift is worked).

PROCESS AND NEXT STEPS

Employees will be asked to consider and approve the 2019 Agreement in a ballot conducted by the Company. The ballot will be conducted as a secret ballot by attendance at the PKCT site. The ballot will open on Tuesday, 16 April 2019 at 5.30am and close at 9.30am. Further details concerning the ballot will be provided separately. Representatives for the Company and the CFMMEU will act as scrutineers for the counting of the ballot.

Where a majority of employees who participate in the ballot approve the 2019 Agreement being made, the Company will file the 2019 Agreement with the FWC for approval. The FWC will then assess whether the 2019 Agreement passes the "better off overall test" (BOOT) and other approval requirements.

If the 2019 Agreement passes the BOOT, it means that the FWC is satisfied that Employees would be better of overall if the 2019 Agreement applied to the Employees than if the relevant modern award applied to the Employees. For the majority of Employees covered by the proposed 2019 Agreement, the Coal Export Terminals Award 2010 (CET Award) is the relevant modern award. For a smaller number of Employees, the Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award) or the Clerks – Private Sector Award 2010 (Clerks Award) is the relevant award. There is also a small number of Employees who are award free.

If the FWC is satisfied that the 2019 Agreement passes the BOOT, and other approval requirements, it will approve the 2019 Agreement. The 2019 Agreement will then commence operation seven days after it is approved by the FWC.

Further information

The Company will be holding an information session about the 2019 Agreement on Tuesday

9 April 2019 commencing at 9am in the Westcliff room- PKCT Project Office. You are encouraged to attend this session.

Should you have any questions or comments about the 2019 Agreement, please contact Rebecca Nasta, Human Resources Superintendent on [details redacted].

Please also let Rebecca Nasta know if you require any of this information translated into another language.

Yours sincerely

Kurt Baumgart
General Manager
Port Kembla Coal Terminal Limited”

(Employer’s emphasis bold, my emphasis underlined)

[38] The Agreement was approved by the Commission on 18 April 2019. The Applicant submitted that on that date, the Company sent a timesheet to Flexible Dayworkers by email, outlining that the timesheet was to be used to record the employees’ planned and actual hours. The Applicant submitted that the email outlined that planned hours should be discussed and approved in advance with the employee’s line leader. 22

[39] The email of 18 April 2021 stated:

“Subject: ACTION | Timesheet
Date: Thursday, 18 April 2019 at 10:13:45 am Australian Eastern Standard Time
From: Rebecca Nasta
To: [employees’ names redacted]
CC: Superintendents, Supervisors
Attachments: image002.jpg, Timesheet.xlsx

All

See attached timesheet for recording of hours of work in lieu of timekeeping.

The intention is that this will be an interim solution whilst we work towards a database or web based tool to capture and workflow this information.

In the time sheet you will see:

- There is a section to record your planned and actual hours. Planned hours should be discussed and approved in advance with your line leader.

- The timesheet frequency as fortnightly to align with payroll processing. The first fortnight date we ask you to use is 15/04/2019.

- There is a section to capture leave. This has been included to assist with reconciling hours worked which should be an average of 35 hours per week (140 over a 4 week cycle), the expectation is leave forms must still be completed and submitted for approval in advance of leave being taken.

At the end of each fortnight you will need to have your line leader approve the timesheet and it is to be sent to payroll/ [email address redacted] by 10am of the Monday of the next fortnight.

If you have any questions or need any assistance with the timesheet please do not hesitate to contact myself

Thanks
Bec

Rebecca Nasta
Human Resources Superintendent | Port Kembla Coal Terminal”

(My emphasis in bold underlined)

[40] The Applicant submitted that the email sent to Flexible Dayworkers on 18 April 2019 is akin to post-contractual conduct, which may in some circumstances be relevant to the interpretation of an industrial instrument. However, the Applicant noted that the post-contractual conduct must be such as to establish a settled interpretation accepted by the parties. 23 In this regard, the Applicant submitted that the 18 April 2019 email indicates that there was a settled interpretation between the parties on the day the Commission approved the Agreement. Therefore, the email and attached timesheet are admissible and support the plain-language construction of clause 14.3.1 outlined above.

The purpose of clause 14.3.1

[41] The Applicant submitted that the Agreement does not express a purpose for clause 14. Clause 14.3 of the Agreement is titled Roster Arrangements. The Applicant referred to the Macquarie Dictionary definition of ‘arrangements’, being “preparatory measures, previous plans, preparations”. 24 The Applicant submitted that the ordinary meaning of arrangements indicates that the purpose of Clause 14.3 is to provide the process which a Flexible Dayworker follows to develop a roster.

[42] The Applicant submitted that the plain language interpretation of clause 14.3.1 advanced above is supported by clause 14.3’s procedural purpose.

Clause 14.3.1 is unambiguous

[43] The Applicant submitted that the ordinary meaning of clause 14.3.1, read as a whole and in its industrial context and purpose, reveals the unambiguous plain-language construction of clause 14.3.1 outlined in paragraph [23] of this decision. The Applicant submitted that if the Commission forms the view that clause 14.3.1 is, or potentially is, ambiguous or susceptible to more than one meaning, then the Commission would be entitled to rely upon the 18 April 2019 email as constituting relevant extrinsic material that can be admitted for the purpose of determining whether an ambiguity exists; or determining the meaning of the ambiguous clause.

[44] The Applicant submitted that the Commission should prevent the Company from unjustly departing from a representation that reflected the shared understanding of the parties as to the Agreement’s roster provisions. The Applicant submitted that fairness is a key objective of the Act. 25 Relevantly, the Explanatory Memorandum of the Fair Work Bill 2008 (Bill) provides that the Bill was implemented to “promote productivity and fairness through enterprise agreements”.26 The Applicant also cited the Second Reading Speech of the Hon. Julia Gillard M.P, in which it was emphasised that the Bill ensures balance and fairness in Australian workplaces.27 The Applicant also referenced the legal doctrine of estoppel, as a remedy against unconscionable or unfair conduct.28

[45] In the present dispute, the Applicant submitted that Mr Baumgart, General Manager of the Company, caused the workforce to assume that the Agreement included a bottom-up rostering practice to which the Company voluntarily acquiesced. The Applicant submitted that the Commission should be guided by the doctrine of ‘evidentiary estoppel’, and should place no weight on any evidence adduced by the Company that would allow it to unjustly depart from the assumption it caused the workforce to adopt.

[46] The Applicant submitted that the Commission often looks to the common law for guidance in the performance of its functions 29 and further noted that the Commission is statutorily directed to consider “equity, good conscience and the merits of the matter” in proceedings before it. Noting that the rules of evidence do not bind the Commission, the Applicant submitted that the Act does not exclude the Commission from being guided by the rules of evidence. Relevantly, section 591 of the Act allows the Commission to select which rules of evidence assist it to best perform its functions.30 As to the present dispute, the Applicant submitted that common law estoppel is not an abstract or complex principle and is “the legal equivalent of holding someone to their word”. The Applicant submitted that in Australia’s industrial relations system, parties must be held to their pre-agreement representations.

[47] The Applicant submitted that the answer to the Question for Arbitration is ‘no’ on the basis that the Company’s current rostering practice does not permit a Flexible Dayworker to develop their roster on a weekly basis (in conjunction with their workgroup) and submit that roster to their line manager for approval.

Respondent’s Submissions

[48] The Respondent submitted that the Commission must have regard to the text of the Enterprise Agreement as a whole, including, most relevantly, the interaction between clause 14.3.1 and clause 7.3. The Respondent also submitted that the Commission is empowered to decide the dispute in accordance with clause 6.4.2 of the dispute resolution procedure in the Agreement and by virtue of s.739 of the Act; however, the Commission must not make a decision that is inconsistent with the Agreement. 31

[49] The Respondent submitted that the answer to the Question for Arbitration is ‘yes’, on the basis that its current rostering practices are compliant with its obligations under clause 14.3.1 of the Enterprise Agreement.

[50] Having regard to the matters outlined in the ‘Background’ of this decision, the Respondent submitted that the rosters have been set in accordance with the Agreement, taking the following matters into consideration:

(a) the availability of adequate supervision for the full duration of rosters;

(b) individual requirements of employees communicated either through consultation or roster change requests made to Line Managers (eg carer's responsibilities);

(c) workload requirements, including preventive maintenance and shiploading schedules; and

(d) the requirement to have a set start time to ensure that all employees are in attendance at pre-start safety meetings delivered by Line Managers, in line with the Company’s work health and safety obligations.

[51] The Respondent submitted that in contrast, the Applicant contends the following roster practice should be followed:

(a) the default position for setting a roster should be the notional roster, being five days comprised of seven hours (Notional Roster);

(b) employees will, in conjunction with their workgroups, create a proposed roster each week;

(c) each week the roster described in (b) will be submitted to the Company for approval;

(d) The Company will approve the roster in line with operational needs as well as family and caring responsibilities;

(e) if the Company refuses the proposed roster, an employee can, in conjunction with their workgroup, create a further proposed roster and submit it to the company for approval; and

(f) if the Company still rejects the proposed roster, the employee will work the Notional Roster.

[52] The Respondent noted that it is not in contest that the Company has the ultimate discretion to approve rosters of Flexible Dayworkers and to change regular rosters in accordance with clause 7.3 of the Agreement. The Respondent noted it is also not contested that Flexible Dayworkers may have input into changes to their regular roster and have a right to request changes to it. The Respondent stated the dispute appears to be what the default roster is and how it is set if agreement cannot be reached. In this regard, the Respondent summarised as follows:

(a) the Applicant submits that, in the absence of agreement, the Notional Roster is the default roster and that the Enterprise Agreement does not permit the Company to implement some other roster pattern as the default roster;

(b) the Company submits that:

(i) there is nothing in the Enterprise Agreement prescribing the Notional Roster as a default roster;

(ii) there is nothing in the Enterprise Agreement preventing the Respondent from setting a default roster which differs from the Notional Roster;

(iii) the Enterprise Agreement includes the right for the Respondent to set a default roster provided it complies with the requirements in clause 7.3;

(iv) if the Respondent sets a default roster, employees may request to roster their particular working days in conjunction with their workgroup and as approved by their Line Manager in accordance with clause 14.3.1.

[53] The Respondent submitted that on the evidence, it is established that the Respondent has set a roster as a default roster which complies with its obligations under the Agreement, under both clause 7.3 and clause 14.3.1. The Respondent submitted, therefore, the evidence establishes that the Respondent’s current rostering practices comply with the Respondent's obligations under clause 14.3.1 of the Agreement.

[54] The Respondent submitted that ‘Flexible Dayworker’ is defined in clause 1:

“Flexible Dayworker means an Employee who works the notional Daywork roster but can adjust their starting or finishing times and the duration of the shift to meet individual and operational requirements with Line Manager approval.”

[55] ‘Roster’ is defined at clause 1 as:

“Roster means the arrangement of rostered hours worked by an Employee.”

[56] The Respondent submitted that the following provisions are also relevant to the interpretation and application of clause 14.3.1:

“Clause 7.3

7.3 Consultation about changes to rosters or hours of work

7.3.1 Where the Company proposes to change an Employee's regular roster or ordinary hours of work, the Company must consult with the Employee or Employees affected and their Employee/Union Representatives, if any, about the proposed change. The Company must:

(a) provide to the Employee or Employees affected and their Employee/Union Representatives, if any, all relevant information about the proposed change, including any adjustment to the Annualised Rates, provided that the Company is not required to disclose confidential information the disclosure of which would be contrary to the Company's interests;

(b) invite the Employee or Employees affected and their Employee/Union Representatives, if any, to give their views about the impact of the proposed change (including any impact in relation to their family or caring responsibilities);

(c) commence the consultation as early as practicable; and

(d) give prompt consideration to any views about the impact of the proposed change that are given by the Employee or Employees concerned and/or their Employee/Union representatives.

7.3.2 The requirement to consult under this clause does not apply where an Employee has irregular, sporadic or unpredictable working hours.

7.3.3 These provisions are to be read in conjunction with other provisions of this Agreement concerning the scheduling of work and notice requirements.”

…

“Clause 14.7:

14.7 Variable Employee Rostering Arrangements (VERA)

14.7.1 Variable Employee Rostering Arrangements (VERA) provides a mechanism by which Employees' hours and work arrangements are adjusted in response to the operational needs of the business and to best position our customers in the market place.

…

14.7.3 VERA also provides flexibility to the PKCT workforce to accommodate extra business through diversification of cargoes and delivers a 365 day, 24hr level of customer service without the overtime constraints of the traditional and restrictive 5 day 3 panel shift roster arrangements.

…

14.7.5 Through this process, the Company is able to cover peaks and troughs and meet operational needs by:

(a) Allocating labour from a "rostered on" shift to an alternate shift on the same day.

(b) Allocating labour from the normal rostered shift to the same shift on an alternate day.

(c) Rostering Employees such that they finish a normal shift early or start late and transfer those hours not worked to an alternative day.

(d) Rostering Employees such that their normal shift is extended by working Additional Hours and deducting hours worked from an alternative "rostered on" day.”

Interpretation of the Agreement

[57] The Respondent cited the principles for construing an enterprise agreement as outlined in Berri. The Respondent submitted that where the meaning of a provision of an enterprise agreement is unclear, a construction which tends to promote the objectives of the agreement is to be preferred. 32

[58] The Respondent submitted it is not in dispute that in interpreting the Agreement, the Commission must look at the language of the Agreement, having regard to its context and purpose. In the present case, the Respondent submitted that having regard to the text of the Agreement, and reading the provisions extracted above together, and in context, a number of matters are apparent. Firstly, the notional roster is not the roster that is worked in practice by Flexible Dayworkers:

“(a) clause 14.3.1(a) sets up the framework for rostering based on a notional number of days and hours which equal 35 hours per week;

(b) the Applicant refers to the Macquarie Dictionary's definition of 'notional' as "relating to or expressing a notion or idea".7 The Macquarie Dictionary also offers the following definitions of the word 'notional': "abstract or speculative" and "ideal or imaginary; not real". From the plain and ordinary meaning of the word 'notional', it can be understood that the notional working week is not the roster that is implemented in practice. Clause 14.1.3(d) and the definition of 'Flexible Dayworker' is consistent with this;

(c) clauses 14.3.1(d) and 14.3.1(e) set limits on the rostered hours which may be worked being:

(i) a minimum of four hours and a maximum of sixteen hours on any day; and

(ii) a minimum of three and a maximum of five 'notional' days per week.

Those provisions are also consistent with the submission that the notional number of days and hours may not be the roster that is actually worked.

(d) the definition of 'Flexible Dayworker' contemplates that the start and finishing times of Flexible Dayworkers may be "adjusted" such that they are different to the "notional roster".”

[59] The Respondent submitted that the purpose of the Notional Roster is to reconcile a Flexible Dayworker’s ordinary hours such that they notionally equal to 35 hours per week, and to assist with the annualisation of pay, noting that Flexible Dayworkers are paid an annualised rate.

[60] Secondly, rosters are set pursuant to the Agreement as follows:

“(a) a base or regular roster (ie a default roster) may be developed and implemented by PKCT which involves a change to the current regular roster applying to employees, provided the requirements of clause 7.3.1 are met;

(b) Flexible Dayworkers can request variations to the default roster on a weekly basis, but the requested roster must be in line with the working days of their workgroup (cl 14.3.1(f));

(c) Line Managers have responsibility for considering requests to vary the base roster (cl 14.3.1(f)) and, when determining whether to approve the varied roster, will consider the operational needs of the business as well as the family and caring responsibilities of the Flexible Dayworker (cl 14.3.1(g));

(d) the roster is then entered into the timekeeping system by the Line Manager a week in advance, which has the effect of formally recording and approving the request (cl 14.3.1(h)).”

[61] Thirdly, the Company has discretion to set and approve rosters in line with operational needs, in accordance with clauses 7.3.1 and 14.3.1(g). The Respondent submitted that the consultation clause is instructive in this regard and has work to do. The Respondent submitted that clause 7.3.1 expressly provides that the Company may change an employee’s roster, provided that its consultation obligations are met. The Respondent highlighted that the parties did not simply incorporate the Model Consultation Term in the Agreement and that they therefore turned their minds to the wording of that clause.

[62] The Respondent submitted that the language of clause 7.3.1 is consistent with clause 14.3.1, including reference to considerations of “family or caring responsibilities”. The Respondent submitted that clause 7.3.1, when read consistently with 14.3.1, provides the Respondent a right to develop and set a default roster and does not diminish the benefit to employees provided by clause 7.3.1. The Respondent submitted the benefit intended by that clause is that employees will be consulted and given an opportunity to provide submissions on the impact that changes may have on them; however, it does not follow that the Company is prevented from implementing changes, including changes to rosters, for operational reasons by a narrow and impermissibly restrictive and unworkable reading of clause 14.3.1.

[63] The Respondent submitted that clause 7.3.3 is instructive, providing that “These provisions are to be read in conjunction with other provisions of this Agreement concerning the scheduling of work and notice requirements”. It submitted that the Company’s right to change an employee's regular roster, subject to meeting the requirements of clause 7.3.1, has to be read in conjunction with, not subject to, the other provisions of the Agreement. The Respondent submitted that this ‘critical subclause’ requires an interpretation of clause 14.3.1 which enables it to sit alongside, and not defeat, the “clear purpose” of clause 7.3.

[64] The Respondent submitted the fact that it has the flexibility to resource its operations appropriately is also expressly contemplated in other parts of the Agreement. The Respondent submitted as an example, that VERA can be utilised to adjust work arrangements “in response to the operational needs of the business”. The Respondent submitted that this flexibility of resourcing and rostering is a critical element of the Agreement and clause 14.3.1 should be read consistently with the other clauses of the Agreement.

[65] The Respondent submitted that if the Commission considers the Agreement contains an ambiguity or is susceptible to more than one meaning, including as to whether clauses 7.3.1 and 14.3.1 can be read consistently, the Respondent relies on the principles in Berri, such that evidence of surrounding circumstances may be admitted. The Respondent relied on the evidence of Ms Rebecca Nasta, in relation to the bargaining negotiations for the Enterprise Agreement. 33 The Respondent submitted that on the evidence, clause 7.3.1 was deliberately included by the bargaining representatives to provide flexibility to the Company in its rostering practices.

Respondent’s Roster Obligations

[66] The Respondent submitted that the obligations which must be complied with when rostering Flexible Dayworkers can be distilled into two limbs:

(a) where the Company proposes to develop and/or change a default roster, it must comply with consultation obligations under clause 7.3. The Company must provide to employees / the Union all relevant information about the proposed change, invite their views about the impact of the change, consult as early as practicable and give prompt consideration to any views raised; or

(b) where a Flexible Dayworker requests a change to the default roster, the Line Manager must consider the reasons for the request, being the family or caring responsibilities of the Flexible Dayworker and the operational needs of the Company. Line Managers will determine the varied roster which suits the Flexible Dayworker, the workgroup and the Company. That roster must then be entered into the timekeeping system.

[67] The Respondent submitted that it has complied with these obligations in setting the current rosters. It submitted that the submissions advanced by the Applicant “would result in the absurd position of a notional roster, being five days comprised of seven hours per day, being applied to all Flexible Dayworkers which neither meets operational requirements, nor individual employee needs, as the default position is unable to be changed other than by agreement, an interpretation which is contrary to the express provisions of the Enterprise Agreement”.

[68] For the reasons outlined, the Respondent submitted that the Commission should find the Respondent is meeting its obligations in respect of clause 14.3.1, that its current rostering practices are compliant with the provisions of the Enterprise Agreement, and that the answer to the Question for Arbitration is ‘yes’.

Applicant’s Submissions in Reply

[69] The Applicant submitted in reply that the Respondent mischaracterised the correct approach to agreement interpretation. The Applicant submitted that the Respondent had also misrepresented the Applicant’s contention regarding the rostering practice permitted by the Agreement. The Applicant submitted it did not contend that the Notional Roster outlined in clause 14.3.1 of the Agreement is a default roster. The Applicant restated its submission that the Macquarie Dictionary defines ‘notional’ as relating to or expressing a notion or idea; and as provided in the Respondent’s submissions, the Macquarie Dictionary defines notional as “abstract or speculative, as reflective of thought”, and “ideal or imaginary; not real”. The Applicant submitted that none of these definitions indicate that the drafters of the Agreement intended the Notional Roster to be a default roster. The Applicant relied on its earlier submissions that the Notional Roster is the starting point for developing a Flexible Dayworker's actual roster.

[70] The Applicant submitted that the Notional Roster is “intentionally unpalatable to both employee and employer” and is intended to facilitate the development of a roster using the process outlined in 14.3.1 of the Agreement.

[71] The Applicant agreed with the Respondent at [17]b(i) of the Respondent’s submissions (as extracted at paragraph [52] of this decision). However, the Applicant opposed the assertion at [17]b(ii)-(iv) of the Respondent's submissions (as extracted at paragraph [52] of this decision). The Applicant submitted that the Agreement prescribes a ‘bottom up’ process for the development of Flexible Dayworkers’ rosters, and the Applicant rejected the contention that clause 7.3 should be used to read down the express right to roster themselves provided to Flexible Dayworkers by clause 14.3.1.

[72] The Applicant disputed the Respondent’s contention that clause 7.3.1 provides the Company the right to change employees’ rosters. The Applicant submitted that clause 7.3.1 compels the Respondent to consult with employees where “the company proposes to change an Employees regular roster”. It submitted that the Respondent has bargained away an absolute right to roster their employees and has included in the Agreement a ‘compromised method’.

[73] The Applicant submitted that the Respondent has asserted the consultation clause is ‘instructive’, in that the Respondent has the ‘discretion to set and approve roster’. The Applicant submitted that the consultation clause is a mandatory clause, which is beneficial to employees, that cannot be utilized to support an argument that the Agreement provides the Respondent with the ability to set an employee’s roster. The Applicant submitted that if the Agreement provided the Respondent the right to set a roster, it would be unnecessary for the Agreement to also provide the Respondent with the right to approve that roster.

[74] As to the Respondent’s submissions regarding inclusion of the Consultation Clause over the model term, the Applicant again relied on the Explanatory Note as provided to employees ‘to ensure that they were able to make an informed decision on the Agreement’, and which stated:

“As compared to the 2012 Agreement, clause 7 has been amended for consistency with the requirements of the Act and to more closely reflect the model consultation clause in the Act and the relevant modern awards”. 34

[75] The Applicant submitted that the Respondent’s reliance on clause 7.3.3 is, “at best, aspirational”. The Applicant submitted that contrasting the explanation provided to employees concerning the rostering practices of Flexible Dayworkers and Flexible Shiftworkers, it is clear that clause 7 has no work to do when interpreting clause 14.3.1.

[76] The Applicant relied on the Explanatory Note which states the following concerning Flexible Shiftworkers:

“Clause 14.3.2 regarding roster arrangements for Flexible Shiftworkers contains the following key changes as compared to the 2012 Agreement:

various rosters and roster cycles may be developed and implemented by the Company over time, to meet the needs of the business, in accordance with clause 7;…” 35

(Applicant’s emphasis)

[77] The Applicant relied on its earlier submissions that clause 7 is only engaged when the Company can author a roster for an employee. Clause 14.3.1 provides a Flexible Dayworker with the right to roster themselves, therefore the Applicant submitted clause 7 is not engaged.

[78] The Applicant rejected the Respondent’s contention that ‘clause 7.3.1 was deliberately included by the bargaining representatives to provide flexibility to the Company in its rostering practices’. The Applicant maintained its position that the Question for Arbitration should be answered in the negative.

Consideration

[79] I have taken into account all of the submissions and evidence that has been submitted by the parties. The fact that an issue is not mentioned in this decision does not mean that it has not been taken into account.

[80] Whilst the courts have recently reinforced the relevant principles that a Court and Tribunal should follow when interpreting enterprise agreements, the most concise and comprehensive decision which collated all of the historical precedent was the Commission’s Full Bench decision in Berri. 36 Relevantly, in Berri the Full Bench enunciated 15 principles:

“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

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

i. the text of the agreement viewed as a whole;

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

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

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

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

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

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

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

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

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

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

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

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

Determination

[81] Clause 14 of the Agreement identifies the ordinary hours of work, roster arrangements and other matters associated with the hours of work of employees.

[82] The definition of a ‘flexible dayworker’ is contained in clause 1 of the Agreement. This definition identifies that flexible dayworkers work the notional daywork roster but that they can adjust their start and finishing times to meet their individual needs and the operational needs of the business but that the change must be approved by the Line Manager.

[83] The notional daywork roster as identified in clause 14 is a 35-hour week, 7-hour day, 5 days a week roster with a span of hours between 6am and 10pm. It is evident from the provisions of the Agreement that the notional roster is the roster that is worked if agreement cannot be reached for any proposed changes to the roster.

[84] Clause 14.3.1(f) of the Agreement requires each employee to roster their working days along with their colleagues. This is undoubtedly to ensure that the required hours of operation of the business are covered. This roster requires the approval of the relevant Line Manager. In approving the roster, the Line Manager is required to take into account the operational needs of the business and the family and caring responsibilities of the employee.

[85] I can find no ambiguity in this provision of the Agreement. An employee is required to roster their own hours, but this roster, as per the definition of flexible dayworker, must be in line with the operational requirements of the business, otherwise the notional roster will apply.

[86] The Respondent has undertaken an extensive and comprehensive consultation process with the employees in relation to rostering.

[87] The evidence of Mr Handicott is compelling. I regard Mr Handicott to be a witness of credit. Mr Handicott testified that prior to March 2021, employees worked the notional roster (ie 5 days x 7 hours). This notional roster was actually a default roster. There is nothing abstract, imaginary or speculative about the notional roster, because it was actually being worked.

[88] As a result of the need to keep employees safe but operational during COVID-19, the parties held discussions in relation to a number of different shift patterns, such as 3 x 12 hours, 4 day week and a 9 day fortnight. These options were all trialled and assessed. Following further discussions between the Union, employees and the Respondent, a majority of employees agreed to implement a 4-day week and a 9-day fortnight roster for the two groups of employees.

[89] What transpired during these discussions is that the parties participated in consultation in accordance with clause 7.3.1 of the Agreement to change the notional roster. It has been widely held that consultation does not require agreement but must be genuine and undertaken before a final decision has been made. In this instance, 75 percent of affected employees (six out of eight) support the new roster. The Respondent has agreed to implement a 9-day fortnight for one group of the employees, even though the 4-day week provided for greater productivity improvement. Such an outcome is a perfect example of the consultation process working for the benefit of the Respondent and the majority of employees. This modification has resulted in an increase in leisure time for employees whilst providing an improvement in productivity for the Respondent.

[90] I do not accept the submissions of the Applicant that if agreement cannot be reached on next weeks roster, then the parties can use the disputes procedure contained in the Agreement to resolve the dispute. It is not the role of the Commission, nor the intention of the parties, for the Commission to determine the roster arrangements of the Respondent on a weekly basis. Such a proposition is unworkable.

[91] The practice of having daily safety toolbox discussions at the commencement of an employee’s shift is a welcomed development in industries which are inherently dangerous, such as coal loading. It is important that all employees receive the same safety briefing so that there is a common explanation and understanding of the safety issues at hand. I do not accept that it is either practical or beneficial for the Respondent to conduct 2 or 3 toolbox meetings on the same shift, such a scenario risks the important safety message of the day being inadvertently missed or misunderstood.

Conclusion

[92] I am satisfied and find that the words of the Agreement are not ambiguous.

[93] The current practice of the Respondent is contrary to the Agreement. The notional roster is the default roster. The Flexible Dayworkers are required to work the notional roster (clause 14.3.1(a)) but they are able to roster their own workdays (clause 14.3.1(f)). The Respondent has reversed this process, which is contrary to the provisions of the Agreement, but delivers the same outcome. It is undoubtedly more efficient for the Respondent to set the roster and allow for individuals to submit changes to that roster. However, the provisions of the Agreement reversed this process and require the employees to submit their proposed roster and have the Respondent accept or reject the proposal based on the relevant criteria. At the end of the day, the same outcome will eventuate.

[94] I so Order.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR733684>

 1 Statement of Matthew Wayne Handicott at [10].

 2 Ibid at [12].

 3 Ibid at [13].

 4   WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [198].

 5 Witness Statement of Daniel Owen at [3].

 6   Ibid at [4], [7].

 7   Ibid at [5], Annexure DO-3.

 8 Ibid at [6].

 9   Witness Statement of Daniel Owen, Annexure ‘Note 6’.

 10 Witness Statement of Daniel Owen at [10].

 11   [2017] FWCFB 3005 at [114].

 12   City of Wanneroo v Holmes (1989) 30 IR 362, 378; Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2].

 13   Macquarie Dictionary (online at 29 July 2021) 'notional’ (def 1).

 14 Applicant’s Outline of Submissions at [20].

 15   Port Kembla Coal Terminal Limited Enterprise Agreement 2019, clause 1.

 16   Construction, Forestry, Maritime, Mining and Energy Union-Mining and Energy Division v BHP Coal Pty Ltd[2020] FWC 3788 at [157].

 17   Australian Meat Industry Employees Union v Golden Cockerel Pty Ltd[2014] FWCFB 7447 at [30].

 18   Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[2017] FWCFB 3005 at [62]; Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337.

 19   Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[2017] FWCFB 3005 at [114].

 20   Witness Statement of Daniel Owen, Annexure DO-6.

 21   Ibid at Annexure DO-7.

 22   Ibid at Annexure DO-4.

 23   Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[2017] FWCFB 3005 at [106].

 24   Macquarie Dictionary (online at 29 July 2021) 'arrangement’ (def 5 applicable to plural arrangements).

 25   Fair Work Act 2009 (Cth), s.3.; s.577.

 26   Explanatory Memorandum of the Fair Work Bill 2008, Outline.

 27   Commonwealth, Parliamentary Debates, House of Representatives, 25 November 2008,11197, (Hon. Julia Gillard).

 28   Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641.

 29   See for example Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005, [61]-[64] adopting Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337; Barber v Commonwealth of Australia as represented by the Department of Parliamentary Services[2011] FWA 4092, [31] adopting Briginshaw v Briginshaw [1938] HCA 34.

 30   See for example, Mr Glen Mackie v BHP Coal Pty Limited [2013] FWCFB 8210.

 31   Fair Work Act 2009 (Cth), s 739(5).

 32   Toyota Motor Corporation Australia Ltd v Marmara and Others (2014) 222 FCR 152, 173.

 33   Statement of Rebecca Ann Nasta at [7]-[16] and "RAN-1", "RAN-2", "RAN-3", "RAN-4" and "RAN-5".

 34   Witness Statement of Daniel Owen, at Annexure DO-7.

 35   Ibid.

 36   [2017] FWCFB 3005.