CPSU, the Community and Public Sector Union v Commonwealth of Australia (Department of Home Affairs)
[2022] FWC 289
•11 FEBRUARY 2022
[2022] FWC 289
The attached document wholly replaces the document previously issued with the code [2021] FWC 6528 on 11 February 2022 to correct document referencing.
Associate to Commissioner Johns
Dated 14 February 2022
| [2022] FWC 289 |
| FAIR WORK COMMISSION |
| RECOMMENDATION |
Fair Work Act 2009
s.739—Dispute resolution
CPSU, the Community and Public Sector Union
v
Commonwealth of Australia (Department of Home Affairs)
(C2021/6987)
| COMMISSIONER JOHNS | MELBOURNE, 11 FEBRUARY 2022 |
Dispute about a matter arising under a workplace determination, application for leave accrual provisions
Introduction
This recommendation deals with a dispute about whether the Department of Home Affairs’ (Department) procedural instruction entitled the Marine Unit Leave Arrangements Procedural Instruction (PI) is consistent with provisions of the Department of Home Affairs Workplace Determination 2019[1] (Workplace Determination) relating to leave for sea-going marine employees (Marine Employees).
The dispute was initiated by the Community and Public Sector Union (CPSU) on 18 October 2021 under section 739 of the Fair Work Act 2009 (FW Act). The Respondent is the Commonwealth of Australia (as represented by the Department of Home Affairs).
In short, the CPSU contends that provisions of the PI which provide for the accrual of certain categories of leave by marine employees at 7.5 hours per day is inconsistent with clause 10.19 of the Workplace Determination. The CPSU contends that clause 10.19 of the Workplace Determination which regards a day as 10 hours, relates to both the entitlement to take leave and to the rate at which leave is accrued.
The Department disagrees. The Department contends that clause 10.19 is limited only to the entitlement to take leave and that marine employees accrue leave at the same rate as all other employees, being 7.5 hours per day.
Essentially, the CPSU seeks a recommendation from the Fair Work Commission (Commission) as to whether clauses 4.1, 4.2 and 4.3 of the PI comply with clause 10.19 as well as clauses 4.8, 4.12, 4.13 and 4.88 of the Workplace Determination.
The Workplace Determination allows for a party to refer a dispute to the Commission for the making of a recommendation.[2] Because the parties have, by consent, asked me to make a recommendation about the operation of clause 10.19 of the Workplace Determination it is not necessary for me to be further satisfied that I otherwise have jurisdiction to deal with the matter.
The Workplace Determination
The Workplace Determination was determined by a Full Bench of the Commission constituted by Vice President Catanzariti, the late Deputy President Kovacic and me on 8 February 2019 following a decision of the Full Bench published on 11 January 2019 (Decision).[3]
By order[4] of the Full Bench the Workplace Determination commenced operation on 8 February 2019.[5] The nominal expiry date of the Workplace Determination was 2 years after the date of commencement (i.e. 7 February 2021).[6] That is to say, the Workplace Determination has passed its nominal expiry date.
The Workplace Determination covers[7]:
a) the Secretary of the Department of Home Affairs on behalf of the Commonwealth,
b) all Employees of the Department, with the exception of any Senior Executive Service (SES) Employees,
c) the CPSU, and
d) the AIMPE.
The Department is the employer of each employee covered by the Workplace Determination.
The CPSU is:
a) an association of employees registered under s 26 of the Fair Work (Registered Organisations) Act 2009 (Cth) (FW(RO) Act); and
b) eligible to represent the industrial interests of employees to whom the Workplace Determination applies.
As the dispute is about whether the Department’s PI is inconsistent with the Workplace Determination, it is useful to set out the relevant clauses of both instruments:
a)Marine Unit Leave Arrangements Procedural Instruction
4.1. Leave accruals
4.1.1 In accordance with clauses 10.11 and 10.19 of the WD, full time sea-going marine employees are required to work 195 x 10 hour duty days each year, which equals 1950 hours. This is the same number of hours each year that other full-time departmental employees work i.e. 37.5 hours x 52 weeks per year = 1950 hours.
4.1.2. This means that the following leave entitlements are calculated based on the standard working hours of 7.5 hours per day or 37.5 hours per week:
· annual leave
· personal leave
· war service sick leave
· purchased leave, and
· supporting partner leave.
4.1.3. Other leave entitlements are provided as either calendar days or full duty days to ensure consistency with how leave is provided to other departmental employees and/or compliance with legislation.
4.1.4. Consistent with clause 10.19 of the WD, for the purposes of taking leave, a day equals 10 hours. This means that when a sea-going marine employee takes annual leave or personal leave, 10 hours is deducted from their leave balance. This is similar to full-time shift employees whose annual leave is deducted based on the number of shift hours scheduled for the day they have taken annual or personal leave.
4.2. Planned leave
4.2.1. The Marine Unit operates in a dynamic environment. It is important that managers ensure sea-going marine employees are taking leave for work/life balance while managing operational requirements. While sea-going marine employees are entitled to request leave, there is no automatic right for employees to take planned leave at a particular time.
4.2.2. Requests for planned leave from sea-going marine employees should not be unreasonably refused where they can be accommodated from an operational perspective.
4.2.3 Sea-going marine employees are provided with the following paid planned leave, providing if the relevant eligibility criteria set out in the WD and the Planned Leave - Procedural Instruction (HR- 4570) are met:
Leave type WD entitlement Marine Unit equivalent Annual 4 WEEKS @ 37.5 HOURS = 150 HOURS 150 hours ÷ 10 hours = 15 duty days Additional annual leave for Sunday duty (clause 10.33 and 10.34 of the WD) 1 week @ 37.5 hours*
*The full week of additional annual leave is provided to sea-going marine employees who receive CMA for more than 26 weeks in a calendar year.
Where sea-going marine employees receive less than CMA for 26 weeks, they will accrue additional annual leave on a pro-rata basis.37.5 hours ÷ 10 hours = 3.75 duty days Purchased leave Up to 8 weeks @ 37.5 hours = 300 hours 300 hours ÷ 10 hours = 30 duty days Defence Reserve leave (clause 4.31 of the WD) 20 days @ 10 hours = 200 hours 200 hours ÷ 10 hours = 20 duty days Supporting partner leave (clause 4.58 of the WD) 4 weeks 4 calendar weeks or 28 days Long service leave (LSL) (clause 4.41 of the WD) In accordance with the Long Service Leave (Commonwealth Employees) Act 1976 Based on calendar days irrespective of hours worked Maternity leave (clause 4.52 and 4.54 of the WD) 14 weeks paid 14 calendar weeks irrespective of rostered duty days Adoption/foster leave (clause 4.49 of the WD) 14 weeks paid 14 calendar weeks irrespective of rostered duty days Jury service leave (clause 4.21 of the WD) As required As required NAIDOC leave (clause 4.46 of the WD0) One day One duty day
4.3. Unplanned leave
4.3.1. Sea-going marine employees are provided with paid unplanned leave as follows:
Leave Type WD Entitlement Marine Unit equivalent Personal leave (clause 4.62 of the WD) 18 days @ 7.5 hours = 135 hours 135 hours ÷ 10 hours = 13.5 duty days Compassionate leave (clause 4.27 of the WD) Two days on each occasion Up to two duty days on each occasion Bereavement leave (clause 4.28 of the WD) Three days on each occasion
Up to three duty days on each occasion
b)Workplace determination
Annual leave
4.8 Employees accrue 4 weeks paid annual leave for each completed year of service, accruing daily and credited monthly.
Shift workers additional annual leave
4.12 Continuous shift workers who:
(a)are employed in a part of the Department where shifts are continuously rostered over the 7 days each week, and
(b)are regularly rostered to work those shifts, and
(c) regularly work on Sundays and public holidays are entitled to an additional week of annual leave.
4.13 Employees who work shifts other than as described in the preceding clause accrue an additional half day of annual leave for every Sunday worked in the previous calendar year, to a maximum accrual of 5 days of annual leave per calendar year.
Purchased leave (44/52)
4.88 The Secretary may approve an application from an Employee to purchase up to 8 weeks of additional leave per year.
Application
10.1 The working arrangements and conditions in this Part apply to Sea-going marine employees and Temporary sea-going marine employees and displace all other provisions of this Determination to the extent of any inconsistency.
Hours of duty
10.19 For the purpose of leave and shore-based duty, a day shall be regarded as 10 hours.
Submissions
The CPSU submitted that,
1.“The Community and Public Sector Union (“CPSU”) has brought a dispute under s 739 of the fair Work Act 2009 (Cth) and Part 12 of the Department of Home Affairs Workplace Determination 2019 (“the Workplace Determination”) for the Fair Work Commission to deal with a dispute about whether the Department of Home Affairs’ Marine Unit Leave Arrangements Procedural Instruction (“the Marine Leave PI”) is consistent with the provisions of the Workplace Determination relating to leave for sea-going marine employees.
2.The Marine Leave PI applies to sea-going employees of the Australian Border Force Marine Unit. It creates an arrangement whereby sea-going employees accrue certain categories of leave at 7.5 hours per day, but must take leave at 10 hours per day. The CPSU says that, in doing so, the Marine Leave PI creates an arrangement which is inconsistent with the Workplace Determination, read in accordance with the well-established principles for interpreting industrial instruments.
3.More specifically, the CPSU says that clauses 4.1, 4.2 and 4.3 of the Marine Leave PI do not comply with clause 10.19 as well as clauses 4.8, 4.12, 4.13, 4.62 and 4.88 of the Workplace Determination.
4.In accordance with clause 12.6(a) of the Workplace Determination, the CPSU seeks that the Commission resolve this dispute by making a recommendation as to whether clauses 4.1, 4.2 and 4.3 of the Marine Leave PI comply with clause 10.19 as well as clauses 4.8, 4.12, 4.13 and 4.88 of the Workplace Determination.
5.The CPSU makes these submissions to assist the Commission in making that recommendation. These submissions provide an overview of the relevant provisions of the Workplace Determination (at [6} – [16]), and the provisions of the Marine Leave PI which the CPSU says are inconsistent with the Workplace Determination (at [17] – [19]). We then outline the proper interpretation of the relevant provisions of the Workplace Determination (at [20] – {30]) and the reasons why the Marine Leave PI is inconsistent with the Workplace Determination (at [31] – [43]).
Relevant clauses of the Workplace Determination
Part 10 – Conditions Specific to Marine Unit Employees
6.Part 10 of the Workplace Determination creates specific terms and conditions of employment for the ABF Marine Unit, which prevail over the general terms of employment for other employees of the Department who do not work in sea-going roles. This is provided by clause 10.1 of the Workplace Determination, which states:
10.1 The working arrangements and conditions in this Part apply to Sea-going marine employees and Temporary sea-going marine employees and displace all other provisions of this Determination to the extent of any inconsistency.
Part 4 – Leave Entitlements
7.Part 4 of the Workplace Determination sets out the entitlements of all employees of the Department to various types of leave, including annual and personal leave. The entitlements to annual leave, additional annual leave for shift workers, personal leave and purchased leave in Part 4 apply to sea-going employees of the Marine Unit, as they are not displaced by any specific provisions in Part 10.
8.The Workplace Determination provides that employees are entitled to four weeks of annual leave for each year of service (accruing daily), with an additional week of annual leave available for shift workers. The relevant clauses are:
Annual Leave
4.8 Employees accrue 4 weeks paid annual leave for each completed year of service, accruing daily and credited monthly.
Shift workers additional annual leave
4.12 Continuous shift workers who:
(a) are employed in a part of the Department where shifts are continuously rostered over the 7 days each week, and
(b) are regularly rostered to work those shifts, and
(c) regularly work on Sundays and public holidays
are entitled to an additional week of annual leave.
9.The Workplace Determination provides that employees of the Department are entitled to 18 working days of personal / carer’s leave for each year of service, accruing daily. The relevant clause is clause 4.62, which provides:
Crediting and accrual of personal leave
4.62 Employees other than those specified in clause 4.63 accrue 18 working days of paid personal leave for each completed year of service with the Department, accruing daily and credited monthly.
10.The Workplace Determination also provides employees of the Department with the option to purchase additional leave. The relevant clause of the Workplace Determination is clause 4.88, which provides:
Purchased leave
Purchased leave (44/52)
4.88 The Secretary may approve an application from an Employee to purchase up to 8 weeks of additional leave per year.
Specific Leave Provisions for Marine Unit Employees under Part 10 of the Workplace Determination
11.Part 10 of the Workplace Determination contains two clauses which make specific leave arrangements for sea-going employees. In accordance with clause 10.1, these clauses prevail over any other provisions of the Workplace Determination to the extent of any inconsistency.
12.The first is clause 10.19, which provides:
10.19 For the purpose of leave and shore-based duty, a day shall be regarded as 10 hours.
13.Clause 10.19 was included in the Workplace Determination following the Full Bench’s decision in B2016/1232 – Department of Home Affairs Workplace Determination. A clause in the same or similar terms as clause 10.19 did not appear in the Australian Customs and Border Force Agreement 2014 (the previous industrial instrument covering Marine Unit employees).
14.The second clause in Part 10 relating to leave arrangements for Marine Unit employees is clause 10.53, which applies to temporary sea-going employees only. It provides:
10.53 For the purposes of leave accrual, a day shall be regarded as 7 hours and 30 minutes.
Specific Working Hours Provisions for Sea-Going Employees under Part 10 of the Workplace Determination
15.Clause 10.17 of the Workplace Determination relates to working hours for sea-going employees. It provides that:
For the purposes of Sea duty, Sea-going marine employees shall work such hours as are considered necessary for the efficient and safe operations of the vessel.
16.By virtue of clause 10.1, clause 10.17 prevails over the standard working hours provisions of the Workplace Determination which apply to non-sea-going employees of the Department, specifically clause 3.9 which provides for these employees to work a standard 7.5-hour day. Clause 10.17 reflects that sea-going employees, during the period in which they are deployed to sea, do not work a standard day of 7.5 hours or any other specific duration, but must be available at all times to perform duties that are required for the operation of the vessel and the performance of law enforcement functions at sea.
17.The Marine Leave PI provides guidance to the Department on implementing the leave entitlements of sea-going employees under the Workplace Determination. The Marine Leave PI is therefore a policy which supports the operation of the Workplace Determination (Workplace Determination, clause 1.5) and which must be consistent with the Workplace Determination (Workplace Determination, clause 1.6). The Workplace Determination prevails over the Marine Leave PI to the extent of any inconsistency (clause 1.6).
18.With respect to leave accrual and the entitlement to take leave, the Marine Leave PI provides that:
4.1. Leave accruals
4.1.1. In accordance with clauses 10.11 and 10.19 of the WD, full time sea-going marine employees are required to work 195 x 10 hour duty days each year, which equals 1950 hours. This is the same number of hours each year that other full-time departmental employees work i.e. 37.5 hours x 52 weeks per year = 1950 hours.
4.1.2. This means that the following leave entitlements are calculated based on the standard working hours of 7.5 hours per day or 37.5 hours per week:
• annual leave
• personal leave
• war service sick leave
• purchased leave, and
• supporting partner leave.
4.1.3. Other leave entitlements are provided as either calendar days or full duty days to ensure consistency with how leave is provided to other departmental employees and/or compliance with legislation.
4.1.4. Consistent with clause 10.19 of the WD, for the purposes of taking leave, a day equals 10 hours. This means that when a sea-going marine employee takes annual leave or personal leave, 10 hours is deducted from their leave balance. This is similar to full-time shift employees whose annual leave is deducted based on the number of shift hours scheduled for the day they have taken annual or personal leave.
19.With respect to specific leave entitlements, the Marine Leave PI provides that:
4.2. Planned leave
4.2.1. The Marine Unit operates in a dynamic environment. It is important that managers ensure sea-going marine employees are taking leave for work/life balance while managing operational requirements. While sea-going marine employees are entitled to request leave, there is no automatic right for employees to take planned leave at a particular time.
4.2.2. Requests for planned leave from sea-going marine employees should not be unreasonably refused where they can be accommodated from an operational perspective. Sea-going marine employees are provided with the following paid planned leave, providing if the relevant eligibility criteria set out in the WD and the Planned Leave - Procedural Instruction (HR- 4570) are met:
Leave type WD entitlement Marine Unit equivalent Annual 4 weeks @ 37.5 hours = 150 hours 150 hours ÷ 10 hours = 15 duty days Additional annual leave for Sunday duty (clause 10.33 and 10.34 of the WD) 1 week @ 37.5 hours*
*The full week of additional annual leave is provided to sea-going marine employees who receive CMA for more than 26 weeks in a calendar year.
Where sea-going marine employees receive less than CMA for 26 weeks, they will accrue additional annual leave on a pro-rata basis.37.5 hours ÷ 10 hours = 3.75 duty days Purchased leave Up to 8 weeks @ 37.5 hours = 300 hours 300 hours ÷ 10 hours = 30 duty days Defence Reserve leave (clause 4.31 of the WD) 20 days @ 10 hours = 200 hours 200 hours ÷ 10 hours = 20 duty days Supporting partner leave (clause 4.58 of the WD) 4 weeks 4 calendar weeks or 28 days Long service leave (LSL) (clause 4.41 of the WD) In accordance with the Long Service Leave (Commonwealth Employees) Act 1976 Based on calendar days irrespective of hours worked Maternity leave (clause 4.52 and 4.54 of the WD) 14 weeks paid 14 calendar weeks irrespective of rostered duty days Adoption/foster leave (clause 4.49 of the WD) 14 weeks paid 14 calendar weeks irrespective of rostered duty days Jury service leave (clause 4.21 of the WD) As required As required NAIDOC leave (clause 4.46 of the WD0) One day One duty day
4.3. Unplanned leave
4.3.1. Sea-going marine employees are provided with paid unplanned leave as follows:
Leave Type WD Entitlement Marine Unit equivalent Personal leave (clause 4.62 of the WD) 18 days @ 7.5 hours = 135 hours 135 hours ÷ 10 hours = 13.5 duty days Compassionate leave (clause 4.27 of the WD) Two days on each occasion Up to two duty days on each occasion Bereavement leave (clause 4.28 of the WD) Three days on each occasion
Up to three duty days on each occasion
20.With respect to excess annual leave credits, the Workplace Determination provides:
Excess annual leave credits
4.2.18. For sea-going marine employees, the additional annual leave accrued in accordance with clauses 10.33 and 10.34 of the WD will be taken into account when calculating the equivalent of two years annual leave credits; sea-going marine employees will be considered to have in excess of two years of annual leave credits with a balance in excess of 375 hours.
Interpretation of the Workplace Determination Applied in the Marine Leave PI
21.The interpretation of clause 10.19 of the Workplace Determination applied in clause 4.1 of the Marine Leave PI (which the CPSU disputes) is that clause 10.19 is limited to the entitlement to take leave only, and does not relate to the rate at which leave is accrued. Some types of leave are said to accrue on the basis of a 7.5 hour day, based on “the standard working hours of 7.5 hours per day or 37.5 hours per week”. Other types of leave are said to accrue on the basis of a “calendar day” or on the basis of a “full duty day” (i.e. a 10 hour day).
22.As a consequence, clauses 4.2 and 4.3 of the Marine Leave PI provides that sea-going employees entitlement to take annual leave, additional annual leave for shift workers, personal leave and purchased leave differs from the entitlements of other employees in the Department. This is because Marine Unit employees alone accrue leave at the rate of 7.5 hours per day but must take leave at 10 hours per day, resulting in their overall entitlements differing from what is provided across the rest of the Department (for example, the 18 working days of personal / carer’s leave to which employees of the Department are entitled under clause 4.62 of the Workplace Determination becomes 13.5 days for Marine Unit employees).
23.The CPSU submits that the interpretation of clause 10.19 of the Workplace Determination reflected in clause 4.1 of the Marine Leave PI is inconsistent with the proper meaning of that clause. To the extent that they apply the incorrect interpretation of clause 10.19 of the Workplace Determination, clauses 4.2 and 4.3 of the Marine Leave PI are also inconsistent with the Workplace Determination because they result in sea-going employees being denied their correct entitlements to annual leave, additional annual leave, personal / carer’s leave and purchased leave under clauses 4.8, 4.13, 4.62 and 4.88.
Proper Interpretation of Clause 10.19
24.Clause 10.19 should be interpreted in accordance with well-established principles of interpretation of industrial instruments, established in Veolia Transport Sydney Pty Ltd v Misfud [2012] FCA 1472 at [16], City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813 at [53], Manildra Flour Mills (Manufacturing) Pty Ltd v National Union of Workers [2012] FCA 1010 at [50], Australian Workers’ Union v Cleanevent Australia Pty Ltd [2015] FCA 1477 at [13] and Kucks v CSR Pty Ltd (1996) 66 IR 182 at [184]. Specifically, it should be interpreted in accordance with the natural and ordinary meaning of its words, bearing in mind its industrial context and its purpose. Words should not be added which alter its meaning (Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 and Taylor v The Owners – Strata Plan 11564 (2014) 253 CLR 531).
Natural and Ordinary Meaning of Clause 10.19
25.The natural and ordinary meaning of the words of clause 10.19 of the Workplace Determination is extremely clear. Clause 10.19 clearly and unambiguously states that, for the purposes of leave, a day shall be regarded as 10 hours.
Purpose of Clause 10.19
26.The purpose of clause 10.19 of the Workplace Determination is also clear. It is to provide a nominal “day” for the purpose of calculating leave entitlements (and shore-duty) for sea-going employees. This was necessary because of the unique working arrangements of sea-going employees. While non-sea-going employees work a standard 7.5 hour day (Workplace Determination, clause 3.9), sea-going employees do not have standard hours at all but work “such hours as may be necessary for the efficient and safe operations and maintenance of the vessel” (clause 10.17). Shore duty and leave entitlements for sea-going employees could therefore not be calculated on the basis of a standard 7.5 hour day, because sea-going employees do not work a standard day. Hence, the Workplace Determination needed to include a provision for a nominal “day” for the purposes of calculating leave and shore duty, namely, clause 10.19. As stated at [24] above, the plain meaning of clause 10.19 is that the nominal “day” for sea-going employees’ leave (and shore duty) is 10 hours.
Industrial Context of Clause 10.19
Full Bench Decision in B2016/1232
27.The industrial context of clause 10.19 is the decision of the Full Bench in B2016/1232. In that decision, the Full Bench accepted the Department’s submission that working hours for sea-going employees should be increased from 191 to 195 duty days per financial year, to reflect that all employees formerly covered by the Australian Customs and Border Force Agreement were to have their hours of work increased from 7 hours and 21 minutes per day to 7 hours and 30 minutes per day (B2016/1232 at [473]. However, this did not entail the introduction of a standard 7.5 hour working day for sea-going employees. Rather, the Full Bench also accepted that the proposed workplace determinations of both the CPSU and the Department were “predicated on a nominal 10 hour day for Marine Unit employees” and “the performance of work for the safe operation and maintenance of the vessel may require more or less than 10 hours on any given day” ((B2016/1232 at [473]). The Full Bench did not make a specific decision in relation to the matter of leave accrual and leave entitlements for Marine Unit employees, but included clause 10.19 in the Workplace Determination that it made, which reflected the agreement between the CPSU and the Department that the workplace determination was to be “predicated on a nominal 10 hour day for Marine Unit employees”. As stated above at [25], it was necessary for sea-going employees to have a nominal day for leave purposes because they do not work the standard 7.5 hour day worked by non-sea-going employees and reflected in clause 3.9 of the Workplace Determination.
Related Clauses in Part 10 of the Workplace Determination.
28.A further important aspect of the industrial context of clause 10.19 is clause 10.53, which in direct contrast to clause 10.19, provides that:
For the purpose of leave accrual, a day shall be regarded as 7 hours and 30 minutes.
Temporary sea-going employees are “employees who are required to perform marine training, marine compliance or humanitarian claims assessments on board a Sea-going vessel at sea” (clause 10.10). They are distinct from sea-going marine employees, “whose primary role is to perform duty as a member of a crew on a Sea-going vessel” (clause 10.4). The fact that the Workplace Determination includes a specific provision about leave accrual for employees whose primary role is not sea duty, which differs from the provision for employees whose primary role is sea duty, indicates that the framers of the Workplace Determination did not intend that leave for sea-going employees would be based on a nominal 7.5 hour day (consistent with the standard hours for non-sea-going employees in clause 3.9 of the Workplace Determination). Had it been so intended, it would either have been unnecessary to include clause 10.53, or clause 10.53 would have been expressed as applying to sea-going employees (as well as the temporary sea-going employees).
Related Clauses in Marine Unit Procedural Instructions
29.Clause 10.19 applies not only to sea-going employees’ leave, but also their shore duty. The Department’s ABF Marine Unit Working Arrangements and Conditions Procedural Instruction deals with shore-based duty, and provides:
4.10.7 For the purpose of shore-based duty, a duty day is considered 10 hours (see clause 10.19 of the WD). Where a work area is unable to accommodate this requirement, the sea-going marine employee will be advised in writing.
4.10.8 Sea-going marine employees will not be required to work more than 10 hours per day while performing shore duty.
30.For shore-based duty, a “day” in clause 10.19 is regarded as 10 hours. It should be treated consistently for the purposes of leave.
Conclusion on Clause 10.19
31.Reading clause 10.19 as meaning that, for the purposes of leave, a day shall be regarded as 10 hours is consistent with the natural and ordinary meaning of the words of that clause. It reflects the purpose of the clause, which is to create a nominal day for the purpose of calculating leave for sea-going employees, given that they do not work a standard 7.5 hour day and this cannot therefore be the basis on which leave is calculated. It is consistent with the industrial context of the clause, in the Full Bench’s decision in B2016/1232 and the Workplace Determination, particularly in clause 10.53. Reading clause 10.19 as meaning that, for the purposes of leave, a day shall be regarded as 10 hours is therefore consistent with the established principles for the interpretation of industrial instruments.
Department’s Interpretation of Clause 10.19 of the Workplace Determination
32.The interpretation of clause 10.19 which the Department has applied in clause 4.1 of the Marine Leave PI is, by contrast, inconsistent with the natural and ordinary meaning of the words of that clause, its purpose and its industrial context
Words of Clause 10.19
33.The Department’s interpretation of clause 10.19 (reflected in clause 4.1 of the Marine Leave PI) involves reading that clause as applying to the entitlement to take leave only, and not to the accrual of leave. This interpretation is not consistent with the natural and ordinary meaning of the words of clause 10.19, which do not distinguish between leave accrual and the entitlement to take leave. Clause 10.19 simply does not say that a day is to be regarded as 7.5 hours (or a calendar day, or a full duty day, depending on the leave type) for the purposes of leave accrual but is to be regarded as 10 hours for the purpose of taking leave. The Department’s interpretation of clause 10.19 involves adding entire phrases into clause 10.19 which alter its meaning (contrary to the principles in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation and Taylor v The Owners – Strata Plan 11564). The alteration to the natural and ordinary meaning of the words of clause 10.19 is significant, as it completely changes the way in which sea-going employees accrue leave and hence their leave entitlements.
Purpose of Clause 10.19
34.The Department’s interpretation of clause 10.19 does not reflect the purpose or the industrial context of that clause. The Department justifies its reading of clause 10.19 as providing for leave to be accrued on the basis of a 7.5 hour day in part because it considers that this approach would create consistency between sea-going employees and other employees of the Department (who work a standard 7.5 hour day in accordance with clause 3.9). This is misconceived, for the following reasons:
1.The Workplace Determination does not reflect an intention for the conditions of sea-going employees to be precisely consistent with those of non-sea-going employees of the Department. Rather, it reflects that the employment conditions for sea-going employees must necessarily differ in certain respects from the arrangements for other employees of the Department, given the unique conditions under which they work. This is why the Workplace Determination includes specific provisions for these employees in Part 10, and why clause 10.1 provides that Part 10 is to displace other provisions of the Workplace Determination to the extent of any inconsistency. There is no basis for reading into the Workplace Determination a requirement for leave accrual for non-sea-going employees to be the same as leave accrual for non-sea-going employees of the Department.
2.The Full Bench in B2016/1232 considered working hours for sea-going employees (at [473]). It accepted into the Workplace Determination it made a clause predicated on a nominal 10 hour day for sea-going employees. There is no basis for reading into the decision in B2016/1232 an intention that leave for sea-going employees should be based on a nominal 7.5 hour day, or reflect arrangements for non-sea-going employees of the Department.
3.The Workplace Determination at clause 10.53 specifically provides that temporary sea- going employees (i.e. those employees who do not deploy to sea as a regular part of their work in the Marine Unit) accrue leave at 7.5 hours per day. Clause 10.53 contrasts with clause 10.19. The fact that it was considered necessary to clarify in clause 10.53 that temporary sea-going employees would accrue leave at 7.5 hours indicates that this arrangement differed from the arrangement for sea-going employees: i.e. that sea-going employees would not accrue leave at 7.5 hours per day, but would be based on a nominal 10 hour day.
Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) [2020] HCA 29
35.Part of the Department’s rationale for its interpretation of clause 10.19 is that it purports to apply the decision in Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) [2020] HCA 29 (“Mondelez”). In Mondelez, the High Court declared that, “The expression ‘10 days’ in s 96(1) of the Fair Work Act 2009 (Cth) means an amount of paid personal / carer’s leave accruing for every year of service equivalent to an employee’s ordinary hours of work in a week over a two-week (fortnightly) period, or 1/26 of the employee’s ordinary hours of work in a year. A ‘day’ for the purpose of s 96(1) refers to a ‘notional day’ consisting of one-tenth of the equivalent of an employee’s ordinary hours of work in a two week (fortnightly) period” (at [43]).
36.Mondelez therefore explains the accrual of personal / carer’s leave entitlements under s 96(1) of the Fair Work Act (the NES). Specifically, it relates to the meaning of a “day” for the purpose of calculating personal / carer’s leave entitlements under that provision. This dispute, however, concerns the meaning of a “day” under clause 10.19 of the Workplace Determination, as it applies to not only to personal / carer’s leave but to all other leave entitlements under the Workplace Determination, many of which are not calculated in days but in weeks (such as annual leave). The Workplace Determination provides leave entitlements for sea-going employees of the Department (and others) which are not equivalent to the NES, but supplementary to and more favourable than the NES.
37.Under s 279, the Fair Work Act applies to the Workplace Determination as though it were an enterprise agreement. Section 55 of the Fair Work Act deals with the interaction of the provisions of an enterprise agreement with the NES, and applies to the Workplace Determination by virtue of s 279 of the Fair Work Act. Section 55(3) provides that the NES have effect subject to the terms of an enterprise agreement (in this case, a Workplace Determination). Under s 55(4) of the Fair Work Act, an enterprise agreement (or in this case, a Workplace Determination) may contain terms that are supplementary to the NES, to the extent that they are not detrimental to any employee as compared with the NES.
38.Clause 10.19 is a supplementary clause to the NES. Reading clause 10.19 as subject to the NES at s 96(1) of the Fair Work Act and applying the NES interpretation principles in Mondelez (as the Department purports to do) is contrary to ss 55(3) and 279 of the Fair Work Act. Such an approach should be rejected.
Implications of the Department’s Approach – Leave Entitlements
39.As outlined above, the Department’s interpretation of clause 10.19 results in sea-going employees being required to take leave at a faster rate than they accrue that leave (i.e. to accrue leave at a rate of 7.5 hours while being required to take it at a rate of 10 hours). No other employees of the Department are subject to this requirement.
40.The Department’s approach results in a significant derogation of the leave entitlements of sea-going employees over the course of a financial year. This is apparent in the table of leave entitlements extracted from the Marine Leave PI at [15]. It indicates that:
1. Sea-going employees are to be given 15 duty days of annual leave per financial year. Because sea-going employees work every day during periods in which they are rostered on to deploy to sea, 15 duty days represents a period of approximately two weeks. For a sea-going employee deployed on a large hulled vessel (for example), this would enable to employee to take less than half a 31 day patrol on annual leave each year (see clause 10.13 of the Workplace Determination). This is contrary to clause 4.8 of the Workplace Determination, which provides that all employees of the Department are entitled to four weeks of annual leave per financial year, accruing daily.
2. Sea-going employees are to be given 3.75 duty days of additional annual leave for Sunday duty each financial year. This is contrary to clauses 4.12 and 4.13 of the Workplace Determination, which provides that workers rostered to undertake Sunday duty are entitled to an additional half day of annual leave each year, up to five days of annual leave per calendar year.
3. Sea-going employees are to be given 13.5 duty days of personal / carer’s leave each financial year. This is contrary to clause 4.62 of the Workplace Determination, which provides that workers are entitled to 18 working days of personal / carer’s leave each financial year.
4. Sea-going employees are to be given the option to purchase 30 additional leave days each year. Because sea-going employees work every day during the period in which they are deployed to sea, this represents a period of approximately four weeks. This is contrary to clause 4.88 of the Workplace Determination, which provides that workers are entitled to the option to purchase up to 8 weeks of additional leave each year.
41.The Department’s interpretation of clause 10.19 of the Workplace Determination as applied in clauses 4.2 and 4.3 of the Marine Leave Pi therefore results in sea-going employees being denied their leave entitlements under clauses 4.8, 4.12, 4.13, 4.62 and 4.88 of the Workplace Determination.
42.The Department’s interpretation of clause 10.19 also has implications for the directions that the Department can give sea-going employees about taking leave. Clause 4.18 of the Workplace Determination provides that the Department can direct employees to take annual leave once they have two years’ accrual. For most employees of the Department, this means an accrual of eight weeks’ annual leave. Applying the Department’s interpretation of clause 10.19, it means an accrual of 375 hours.
Conclusion
43.The Department’s interpretation of clause 10.19 of the Workplace Determination reflected in clause 4.1 of the Marine Leave PI should be rejected. It is predicated on a complete re-wording of that clause, and a complete misunderstanding of the purpose and the industrial context of the clause, which is not to create consistency between sea-going and non-sea-going employees of the Department but rather to recognise the unique conditions under which Marine Unit employees work. It results in a significant derogation of the leave entitlements of Marine Unit employees.
44.The Commission’s recommendation should be that:
1. Clauses 4.1, 4.2 and 4.3 of the Marine Leave PI are not consistent with clauses 10.19 and clauses 4.8, 4.12, 4.13, 4.62 and 4.88 of the Workplace Determination.
2. Clauses 4.1, 4.2 and 4.3 of the Marine Leave PI should be amended to reflect the proper interpretation of clause 10.19 of the Workplace Determination, which is that, for the purposes of leave, a day shall be regarded as 10 hours.”
The Department submitted that,
1.“The issue in dispute is the interpretation of clause 10.19 of the WD. We set the clause out in full, in context, below.
2.The parties are in agreement that clause 10.19 has the effect that when a ‘sea-going marine employee’ (marine employee) takes a day of leave, 10 hours of accrued leave are deducted. The CPSU contend the clause has an additional effect, such that when a marine employee accrues leave, they accrue leave at the rate of 10 hours per day, or 50 hours per week. The Department disagrees with this contention, and says that marine employees accrue leave at the same rate as all other employees, being 7.5 hours per day or 37.5 hours per week (the standard full-time working day and week set out in clause 3.1).
Principles of interpretation
3.The Department respectfully adopts and agrees with the Commission’s summary of the principles and authorities regarding interpreting the WD in paragraphs [17]–[22] of CPSU v Commonwealth of Australia (as represented by the Department of Home Affairs) [2021] FWC 2199.
4.These principles may be briefly summarised as:
1.The construction of the WD begins with consideration of the ordinary meaning of the words of the WD.
2.The words of the WD must not be read in a vacuum. Rather, regard must be had to their context and purpose. Context, in this regard, has a wide meaning.
3.Having regard to such context, it is justifiable to read the WD to give effect to its evident purpose. Meanings which avoid inconvenience or injustice may be reasonably strained for.
4.The principles and rules of the Acts Interpretation Act 1901 (Cth) must also be applied.
5.The CPSU’s application asserts that the Department’s interpretation relies on reading words into the WD. The Department disagrees. As set out below, it submits that its interpretation is a natural reading of clause 10.19, by application of the above principles.
Submissions on interpretation
Read in context, clause 10.19 relates to hours of duty during leave
6.Clause 10.19 appears in Part 10 of the WD, which is titled ‘Conditions specific to marine employees’. Part 10 applies to marine employees, and displaces all other provisions of the WD to the extent of any inconsistency (clause 10.1). In other words, marine employees are covered by the provisions in Part 1-9 and 11-12 of the WD, including the provisions in Part 4 about leave, unless those provisions are inconsistent with provisions in Part 10. Other provisions are displaced only to the extent of any inconsistency with provisions in Part 10.
7.Clause 10.19 is part of a set of three clauses under the heading ‘Hours of duty’:
Hours of duty
10.17 For the purposes of sea duty, Sea-going marine employees shall work such hours as may be necessary for the efficient and safe operations and maintenance of the vessel.
10.18 Sea-going marine employees will be required to perform work in a scheduled rest period for the duration of a Tactical response or Emergency response. Work in a scheduled rest period will be allocated taking into account the management of crew fatigue.
10.19 For the purpose of leave and shore-based duty, a day shall be regarded as 10 hours.
8.‘Sea duty’ is duty performed on a ‘Sea-going vessel’ ie, a Marine Unit vessel responsible for off shore maritime operations: see the definitions in clauses 10.2 and 10.5. A day on which sea duty or shore-based duty are performed are examples of Duty days: see the definition in clauses 10.2. The standard roster cycle for marine employees equates to 195 Duty days each financial year: clause 10.11.
9.Starting with the words of clause 10.19 itself, the clause uses the phrase ‘For the purpose of leave’. A task of interpretation is required to give practical meaning to what ‘for the purpose of’ encompasses. Giving practical meaning and effect to these words is orthodox interpretation and should not be regarded as reading words into the WD.
10.The heading (‘Hours of duty’) and clauses 10.17 and 10.18 give immediate context for the interpretation of the phrase ‘for the purposes of’ in clause 10.19:
1.First, the heading establishes that this set of three clauses relate to hours of duty. This indicates the purpose or subject of these clauses.
2.Second, the both clauses 10.17 and 10.19 commence with the words ‘for the purposes of’. This indicates that both clauses are regulating the same subject matter (hours of duty) in two different contexts. The use of ‘for the purposes of’ followed by different circumstances in the two clauses establishes a clear division in how these provisions regulate the hours of duty for marine employees. Clause 10.17 (together with clause 10.18) regulates hours of duty during sea duty and clause 10.19 regulates hours of duty during leave and shore-based duty.
3.Third, the need for clause 10.19 is made clear by clauses 10.17 and 10.18. Clauses 10.17 and 10.18 establish that during sea duty a marine employee does not have fixed hours of duty; they work such hours as may be necessary for the vessel. This creates a practical issue in administering leave entitlements. Namely, if an employee has no fixed hours of duty, how many hours of leave should be deducted when they take leave? Clause 10.19, as the immediately following clause, provides the answer: 10 hours.
11.Taking this context into account, it is clear that the phrase ‘for the purposes of leave and shore-based duty’ refers to two circumstances: when a marine employee is taking leave or when they perform shore based duty (rather than sea duty or other Duty day duties). The balance of the clause ‘a day shall be regarded as 10 hours’ establishes that in these circumstances a day is 10 hours. This has the effect that when a marine employee takes a day of leave, 10 hours of leave are deducted from their accrued entitlement.
12.The clause also has the effect that when an employee performs a day of shore-based duty, they are required to work for 10 hours (consistent with cl 10.11(b)).
13.This interpretation is consistent with the Department’s long-standing practices with respect to leave accruals for marine employees.
The context does not support clause 10.19 relating to leave accrual
14.Nothing in the wording or context of clause 10.19 indicates that it is directed to leave accrual. As set out above, the context of the clause indicates that its subject matter is hours of duty. Other clauses in Part 10, which are directed to leave entitlements are clearly labelled as such. For example:
1.Clause 10.30 relates to a particular manner in which marine employees can take annual leave and appears under the heading ‘Planned leave’.
2.Clauses 10.33 and 10.34 provide additional annual leave for marine employees who work on a Sunday and appear under the heading ‘Additional annual leave for Sunday duty’.
3.Clause 10.53 deals with leave accrual for temporary sea-going marine employees. It expressly refers to leave accrual, making clear that it is directed to the amount of leave a temporary marine employee accrues, whether performing sea duty as referred to in cl 10.51 (which is a 10 hour Duty day) or other duty as referred to in cl 10.52 (which is ordinary work hours of 7 hours and 30 minutes). This is in clear contrast to clause 10.19, which makes no reference to leave accrual.
15.If clause 10.19 was intended to provide a special rule for how marine employees accrue leave, this would be clearly identified by the heading or wording of the clause. Instead, there is no reference to leave accrual either in the clause or its surrounding context.
16.Again, this interpretation is consistent with the Department’s long-standing practices with respect to leave accruals for marine employees.
Most leave entitlements under the WD are not specified in days
17.The leave entitlements under the WD which accrue, and so are the subject of this dispute, are annual leave (clause 4.8), additional annual leave for Sunday duty (cls 4.12-4.15 and 10.33-10.34), purchased leave (clause 4.88) and personal leave (cls 4.62 and 4.63). Of these, only personal leave and some aspects of additional annual leave for Sunday duty are specified in days. The remainder are specified in weeks.
18.The CPSU’s application asserts that clause 10.19 affects the amount of leave that marine employees accrue in relation to entitlements which are specified in weeks. In applying their interpretation of clause 10.19 to these entitlements, they seek to maintain a 5 day week, such that a week equals 50 hours. This requires reading into clause 10.19 not only the specification that marine employees accrue leave on the basis of a 10 hour day, but also that marine employees accrue leave on the basis of a 50 hour week (of 5 days of 10 hours each).
19.There is no basis in the WD to read this into clause 10.19. It is at odds with the actual working patterns of marine employees, which are principally set out in clauses 10.11 to 10.13. These clauses establish that marine employees clearly do not work a five day week. Rather, depending on the point in their roster cycle the week falls, a marine employee could work anywhere from 1 to 7 days in a particular week. It is also at odds with the standard roster cycle for marine employees which equates to
1. 195 Duty days each financial year, or
2. 1950 hours each financial year based on the notional 10 hour Duty day, or
3. 37.5 hours per week or 7 hours and 30 minutes per day if the 1950 hours are averaged over the year.
20.As such, to any extent that clause 10.19 did apply to leave accrual, it would have no application to leave entitlements which accrue in weeks, such as annual leave. It could only apply to the accrual of leave entitlements which accrue in days, such as personal leave. The Department’s primary submission is that clause 10.19 has no effect on leave accrual at all. However, if the Fair Work Commission opines or recommends that clause 10.19 does affect leave accruals, that affect must be limited to leave entitlements specified in days, given clause 10.19 says nothing about the length of a week. For entitlements which accrue in weeks, there is nothing in clause 10.19 which displaces the standard working week in clause 3.1.
The Full Bench, in making the WD, premised Part 10 on a 10 hour day
21.The decision of the Full Bench in making the WD ([2019] FWCFB 143), forms part of the circumstances surrounding the making of the Determination, and so is part of the context which should be taken into account in interpreting the WD.
22.The Full Bench did not directly address clause 10.19 in their decision. However, in paragraphs [473] to [476], the Full Bench considered the Department’s claim for an increase in annual duty days for marine employee from 191 to 195 to reflect the increase in working hours to 7 hours and 30 minutes for other former Australian Customs and Border Protection Service employees.
23.The Full Bench noted the Department’s submission that its (and the CPSU’s) proposed determination was premised on a ‘nominal 10 hour day’ for marine employees. They noted the CPSU’s alternative proposal to increase the length of a day by 12 or 12.5 minutes. The Full Bench then rejected the CPSU’s alternative and adopted the Department’s approach, which was premised on a ‘nominal’ 10 hour day.
24.In adopting the increase to 195 duty days, the Full Bench maintained equality between marine employees and other employees in respect of the total number of hours worked per year. A non-marine employee is required to work 1,950 hours per year (37.5 hours * 52 weeks or 7.5 hours * 260 days). Equally, a marine employee is required to work 1,950 hours per year (195 days * 10 hours). This intention to maintain equal working hours between the two categories of employees is important when considering the implications of the two interpretations of clause 10.19 being contended for, as set out below.
The CPSU interpretation results in inequality between employees under the WD
25.The outcome of the two interpretations being contended for is set out below, using annual leave (without the additional leave for Sunday duty) as an example.
| Hours of annual leave per year | Required work hours per year | Annual leave as a percentage of required attendance | |
| Non-Marine Employee | 150 | 1950 | 150 out of 1950 or 7.7% |
| Marine Employee (Dept position) | 150 | 1950 | 150 out of 1950 or 7.7% |
| Marine Employee (CPSU position) | 200 | 1950 | 200 out of 1950 or 10.3% |
26.As can be seen from the table, the Department position results in both categories of employee receiving an equal entitlement. By contrast, the CPSU position results in marine employees receiving a higher entitlement than any other employee under the WD, allowing them to be absent from a duty day with pay for a higher proportion of their required work hours than all other employees under the WD. Put another way, the CPSU position is that marine employees receive an additional 2.5 hours of leave for each day of leave entitlement, which is a one third increase on the leave entitlements of all other employees under the WD.
27.It is important to note that this would be additional to the specific and express entitlements in the WD which recognise the nature of marine employees’ work. In particular, additional annual leave for Sunday duty and the sea-going commuted allowance.
Fair interpretation is preferable
28.The Department submits that its interpretation accords with the terms of cl 10.19 in its context. Also, this practical outcome of the competing interpretations provides a sound basis to reject the strained interpretation of the CPSU and to prefer the Department’s interpretation. This is particularly noting the evident intent of the Full Bench to provide equality of working hours between marine employees and other employees, as set out above.
29.It is in this context that the Department relies on Mondelez Australia Pty Ltd v Australian Manufacturing Workers Union (2020) 297 IR 338 (Mondelez). In Mondelez, the AMWU contended for, and the High Court majority rejected, an interpretation of s 96(1) of the FW Act such that an entitlement to ‘10 days’ of personal leave was an entitlement for employees to be absent for 10 days per year, regardless of their pattern of work. This interpretation (referred to as the ‘working day’ construction) would have led to an ‘employee whose hours are spread over fewer days with longer shifts [being] entitled to more paid personal/carer’s leave than an employee working the same number of hours per week spread over more days’ (at [41]). This outcome is directly analogous with the outcome the CPSU seek in this matter: marine employees, who work a smaller number of longer days, would receive more hours of leave than other employees.
30.The Department accepts that the outcome in Mondelez is not directly applicable or binding: the provisions of the WD are different to the terms of the FW Act. However, it submits that the reasoning of the High Court is of significant relevance, on the following basis:
1. In considering the matter, the joint majority judgment (Kiefel CJ, Nettle and Gordon JJ) considered the objectives of the FW Act. Given the WD is an instrument made under the FW Act, these objectives are relevant to interpreting the WD, and form part of its industrial context. Their Honours considered that the objectives of the FW Act showed that it was intended to provide ‘fairness, flexibility, certainty and stability for employers and their employees’. The joint majority judgment considered that ‘fairness’ has a number of aspects including fairness between employees, elaborating that:
The notion of fairness encompasses fair treatment as between employees according to their ordinary hours of work, regardless of the pattern in which those hours are worked
2. In rejecting the working day interpretation of s 96(1), their Honours relied on the working day interpretation being at odds with this aspect of fairness, stating:
The “working day” constructions … is not consistent with the purpose of s 96 or the stated objectives of the Fair Work Act of fairness, flexibility, certainty and stability. The “working day” construction would lead to inequalities between employees with different work patterns, and so would be unfair. An employee whose hours are spread over fewer days with longer shifts would be entitled to more paid personal/carer’s leave than an employee working the same number of hours per week spread over more days.
3. The aspect of fairness identified by the joint majority judgment, fairness between employees, is equally relevant to interpreting the WD. The CPSU’s interpretation of clause 10.19 is contrary to this aspect of fairness just as the ‘working day’ construction of s 96(1) was. As such, the reasoning of the joint majority judgment, and their Honours’ articulation of what fairness means in this context, provides a compelling basis to prefer the Department’s interpretation of clause 10.19 over the CPSU’s interpretation.
4. Finally, the CPSU have asserted that the Department’s interpretation results in unfairness, because it results in marine employees using their leave entitlements ‘faster’. This concern is inconsistent with the joint majority judgment, as set out above. It was also addressed in Edelman J’s judgment (at [94]). His Honour observed that the Mondelez interpretation (as with the Department’s interpretation) resulted in a small number of full days absences of paid leave entitlement. However, Edelman J considered this ‘apparent anomaly’ was lessened once it is recognised that workers with longer working days work less days in total, going on to state:
Hence a shift worker with the same ordinary hours of work will need fewer days of leave but the same number of hours of leave to ensure the same “safety net” protection of income as a day worker.
This reasoning is equally applicable to the CPSU’s concern with the effect of the Department’s interpretation. As marine employees work the same number of hours over a smaller number of days, fairness dictates that they would accrue the same number of hours of leave, but that this will equate to a smaller number of full day absences.”
Principles of interpretation
A Workplace Determination is not an enterprise agreement. It is not the result of a bargain. Consequently, the principles relevant to the task of construing an enterprise agreement as distilled in The Australasian Meat Industry Employees Union v Golden Cockerel[8] and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (known as the Australian Manufacturers Workers Union (AMWU) v Berri Pty Limited[9] do not apply.
However, as the Full Bench (still relevant for present purposes) observed in Berri,
[46] There is a long line of authority in support of the proposition that a ‘narrow or pedantic’ approach to the interpretation of industrial instruments (such as enterprise agreements) is to be avoided,[10] and that ‘fractured and illogical prose may be met by a generous and liberal approach to construction’.[11]
A Workplace Determination is a creation of the Commission. Consequently, the principles applicable to interpreting a Workplace Determination are the same as those applicable to interpreting other industrial instruments, like industrial awards.
The general approach to the construction of industrial instruments was set out by Flick J in Australian Workers’ Union v Cleanevent Australia Pty Ltd,[12]
13When construing the terms of an award, it is well-settled that a “narrow or pedantic approach” is to be shunned and that the “search is for the meaning intended by the framer(s)”: Kucks v CSR Ltd (1996) 66 IR 182 at 184. Madgwick J there observed:
Legal principles
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.
See also: Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829 at [30], (2014) 318 ALR 54 at 58 per Tracey J; Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd [2015] FCA 532 at [6] per Logan J; Construction, Forestry, Mining and Energy Union v Port Kembla Coal Terminal Ltd (No 2) [2015] FCA 1088 at [240] per Murphy J. The words used in an agreement or an award are to be given their “natural and ordinary meaning”: Veolia Transport Sydney Pty Ltd v Mifsud [2012] FCA 1472 at [16].
14It is also well-settled that the words of an award are not to be construed “in a vacuum divorced from industrial realities”: City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813 at [57], (2006) 153 IR 426 at 440. French J (as his Honour then was) there observed:
[53] The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or 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’. It may also include ‘… ideas that gave rise to an expression in a document from which it has been taken’ — Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518; 46 IR 128 at 134 (Burchett J); Australian Municipal, Clerical and Services Union v Treasurer of Commonwealth (1998) 82 FCR 175; 80 IR 345 (Marshall J).
His Honour continued on to observe:
[57] It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities — City of Wanneroo v Holmes (1989) 30 IR 362 at 378–379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned — see eg Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):
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.
15There is repeated reference in the authorities to the need to take into account the “context” in which an industrial agreement or award emerges. Thus, by way of example, in Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10 at [2], (2005) 222 CLR 241 at 246 Gleeson CJ and McHugh J observed:
The resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose …
Kirby J there also observed:
[66] … In the interpretation of the Constitution and of legislation, Australian courts have passed beyond the age of the magnifying glass. No longer do courts (or industrial tribunals) seek to give meaning to contested language considered in isolation from the context in which the words are used and the purpose for which the words were apparently chosen. Nowadays, the same insistence on context, as well as text, permeates the approach to interpretation that is taken to legally binding agreements. Indeed, before this approach became normal in the courts, in the interpretation of contested instruments it was often the approach adopted for the construction of industrial texts. This was in keeping with an inclination of such tribunals towards practical, as distinct from purely verbal, constructions in that area of the law’s operation.
[67] In the present case, the Union’s submission was that these generalities were all very well, but that in the end, the Court had to give effect to the language of the Agreement. Clearly, this is correct. Interpretation is always a text-based activity …
In Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148, (2014) 245 IR 449 at 455 Siopis, Buchanan and Flick JJ similarly stated:
[22] The test that should be applied is to discern the objective meaning of the words used bearing in mind the context in which they appear and the purpose they are intended to serve. Here, the definition in question expressly extended to work ancillary to the principal business. That was the true question for examination.
Their Honours continued:
[46] … giving primacy to the text does not deny the importance of understanding the context in which an instrument is made, and which it is intended to address, nor the utility of bearing in mind the facts as they are known at the time the instrument is drafted.”
With respect, I adopt the above principles of construction.
I note also that I must apply the Acts Interpretation Act 1901 (Cth) in interpreting the Workplace Determination.[13]
Consideration
The first observation to make is that clause 10.19 of the WD does not expressly state what either the CPSU or the Department contend it means. It is within the power of the parties to make the clause less ambiguous.
Clause 10.19 could more clearly reflect either position as follows:
| Wording | |
| Current | For the purpose of leave and shore-based duty, a day shall be regarded as 10 hours. |
| CPSU contention | For the purpose of the accrual and taking of leave and shore-based duty, a day shall be regarded as 10 hours. |
| Department contention | For the purpose of taking leave and shore-based duty, a day shall be regarded as 10 hours. |
The Full Bench did not directly address clause 10.19 in its decision. However, faced with inexactitude in the drafting of clause 10.19, meaning must be given to it in its current form.
There is agreement between the parties about the principles of interpretation to be applied. I set them out in [2021] FWC 2199.
The starting point is a consideration of the ordinary meaning of the words of the WD. In the present matter the question is “What does “leave” mean”? Does it mean only the taking of leave (as the Department contends), or does it mean the taking and accrual of leave (as the CPSU contends)?
The Macquarie Dictionary defines the verb “leave” to include “to go away from …”. That definition is suggestive that the ordinary meaning refers only to the taking of leave.
However, context is also important.
For present purposes, relevant context includes the following:
a) Part 10 of the WD was intended to address conditions specific to marine employees.
b) However, Part 10 only displaces other provisions of the WD to the extent of any inconsistency (clause 10.1).
c) The heading “Hours of Duty”, that sits above clauses 10.17, 10.18 and 10.19, is a relevant contextual matter. Otherwise unspecified “hours” of duty are intended to align with hours of leave (i.e. the taking of leave).
d) The Full Bench was concerned to ensure that:
i.the particularities of the work of marine employees (i.e. the fact that marine employees do not work a standard 7.5 hour day or a 5 day week could be accommodated in the WD).
ii.leave entitlements could be administered in a sensible way.
iii.the standard roster cycle for a marine employee would equate to 195 duty days each financial year (or 1950 hours each financial year based on a notional 10 hour duty day).
iv.there would be equality between the hours worked by marine employees and non-marine employees (who work either 37.5 hours x 52 weeks or 7.5 hours x 260 days).
The intention of the Full Bench to have an equality of hours as between marine and non-marine employees supports a finding that there was a like intention that leave should accrue at the same rate as between the two sets of employees. The “working day/10 hour accrual” construction advanced by the CPSU would defeat that intention.
The “working day/10 hour accrual” construction advanced by the CPSU would also fail to recognise that marine employees have a 195 day year as opposed to a 260 day year for non-marine employees. It was not the intention of the Full Bench to provide for lesser working days and also a higher accrual rate for leave. Nothing in the WD supports a finding that there was intended to be a “double” benefit to marine employees.
To the extent that there is a difference in the rate at which the accrual and taking of leave occurs, that anomaly, of sorts, for marine employees is compensated by the fact that their work year is only 195 days. Marine employees have longer working days, but they work less days in total. That fact evens out the apparent anomaly caused by leave accrual (clause 4.8) occurring at a lesser rate than leave use (clause 10.19). The spread of hours is different, but the rate of accrual of leave does not differ.
The CPSU complains that “no other employee of the Department are subject to [a] requirement”, that they are “required to take leave at a faster rate than they accrue leave”. That is correct. But, that submission fails to recognise that marine employees work less days than other employees of the Department. It is a matter of “swings and roundabouts.”
Nothing in the WD evinces an intention, on behalf of the Full Bench, to afford marine employees a greater accrual rate for leave than for non-marine employees. If that had been the intention, it would have been expressly stated.
As I have observed, Part 10 only displaces other provisions of the WD to the extent of any inconsistency (clause 10.1). Consequently, if clause 10.19 and clause 4.8 can coexist there is no inconsistency. It seems to me that they can. There is no reason why the WD cannot have the accrual of leave and the taking of leave occur at different rates.
What is clear from the contextual consideration of clause 10.19 is that the reference to “10 hours” is a reference to actual shore-based duty and leave. That is the actual performance of shore-based duty and the actual taking of leave.
The CPSU makes a good argument about how clause 10.53 should be read in the context of the operation of clause 10.19. It is an attractive argument (its most difficult to rebut) that, if the Department’s interpretation of clause 10.19 is correct, clause 10.53 is otiose. Noting that every clause of a WD should have work to do, if an interpretation renders a clause otiose, that interpretation should not be preferred.
However, it seems to me that the work that clause 10.53 has to do is to make certain the arrangements that apply to “Temporary sea-going marine employees”. Clauses 10.51 – 10.58 are aimed at that purpose. Consequently, clause 10.53 is intended to operate as a “for the avoidance of doubt” like provision. It makes clear that the accrual for temporary employees is the same as for non-temporary employees. In this context clause 10.53 performs a useful function.
It is also relevant that clause 4.8 provides for “4 weeks paid annual leave”. A week for a marine employee is 195 hours/52 weeks. That equals 3.75 days per week. 3.75 days x 4 weeks = 15 days per annum (in addition to marine employees working 195 days as opposed to 260 days).
Conclusion
For the reasons set out above I make no recommendation that the Department amend the Marine Unit Leave Arrangements Procedural Instruction.
COMMISSIONER
<PR738322>
[1] AG501682.
[2] Clause 12.6(a), the Workplace Determination.
[3] [2019] FWCFB 143.
[4] AG501682 PR704687
[5] Clause 1.3, the Workplace Determination.
[6] Ibid
[7] Clause 1.2, the Workplace Determination.
[8] [2014] FWCFB 7447 (‘Golden Cockerel’).
[9] [2017] FWCFB 3005 (‘Berri’).
[10] Kucks v CSR Limited (1996) 66 IR 182 at 184.
[11] City of Wanneroo v Australian, Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at 440.
[12] [2015] FCA 1477.
[13] City of Wanneroo v Australian, Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426.
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