CPSU, the Community and Public Sector Union v The Australian Capital Territory T/A Act Corrective Services
[2020] FWC 351
•23 JANUARY 2020
| [2020] FWC 351 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
CPSU, the Community and Public Sector Union
v
The Australian Capital Territory T/A ACT Corrective Services
(C2018/6158)
DEPUTY PRESIDENT KOVACIC | CANBERRA, 23 JANUARY 2020 |
Application to deal with a dispute regarding the application of clause C17 of the ACT Public Sector Correctional Officers Enterprise Agreement 2013-2017.
[1] On 1 November 2018 the Community and Public Sector Union (CPSU – the Applicant) made an application under s.739 of the Fair Work Act 2009 (the Act) and in accordance with the dispute resolution process of the ACT Public Sector Correctional Officers Enterprise Agreement 2013-2017 (the Agreement) 1. The dispute concerns the application of clause C17 – Emergency Duty of the Agreement.
[2] The application was the subject of a conference on 22 November 2018 which failed to resolve the dispute. It was not disputed that in those circumstances the Fair Work Commission (the Commission) was empowered by the dispute settlement procedure in the Agreement to determine the dispute.
[3] The application was heard on 8 April and 24 May 2019. At the hearing, Mr Michael Cornthwaite (a CPSU Industrial Officer) appeared for the CPSU, while Ms Prue Bindon of Counsel appeared with permission for the Australian Capital Territory T/A ACT Corrective Services (the Respondent).
[4] Evidence for the CPSU was given by Mr Brenton Higgins, a Lead Organiser with the CPSU, Mr Ian Ryall, a former Organiser with the CPSU, and Mr Wayne Baynham, a Correctional Officer Grade 3 with ACT Corrective Services.
[5] Evidence for the Respondent was given by Mr Jon Peach, Executive Director – ACT Corrective Services.
[6] For the reasons set out below, I find that Correctional Officers employed by the Respondent are not entitled to be paid emergency duty as per clause C17 of the Agreement in circumstances where they are not on duty and are offered and accept the offer of an additional shift to fill vacancies created by staff absences in circumstances where they had no notice of such an offer prior to ceasing ordinary duty.
The Agreement provisions
[7] The relevant clauses of the Agreement are set out below.
“Section A – Scope of Agreement
A2 MAIN PURPOSE
A2.1 The main purpose of this Agreement is to provide common terms and conditions that apply across the Australian Capital Territory Public Service (ACTPS) and terms and conditions that reflect the operational and business requirements of particular business units and occupational groups.
Section C – Rates of Pay and Allowances
C9 OVERTIME
C9.1 An employee may be required or requested to work reasonable additional hours of duty at any time that the employee is required, subject to the payment for overtime in accordance with the conditions set out in this clause, and the reasonable additional hours provisions of the FW Act.
C9.2 …
Minimum Attendance for Overtime
C9.7 Where an employee is required to perform overtime duty that is not continuous with ordinary duty the minimum period of overtime payable for each separate overtime attendance is four hours.
C9.8 …
C17 EMERGENCY DUTY
C17.1 Where an employee is called on duty to meet an emergency at a time when the employee would not ordinarily have been on duty, and no notice of such call was given to the employee prior to ceasing ordinary duty, the employee will be paid for such emergency duty.
C17.2 The time for which payment will be made under this clause will include time necessarily spent in travelling to and from duty.
C17.3 The minimum payment under this clause will be two hours.
C17.4 The rate of payment for emergency duty will be double time at the employee’s ordinary hourly rate of pay.
C17.5 This clause does not apply to employees whose duty for the day is varied by alteration of the commencement of the scheduled shift to meet an emergency.
Section M – ACT Corrective Services Correctional Officers
M1 APPLICATION
M1.1 Section M applies to all Correctional officers in ACT Corrective Services unless specified.
…
M29 FATIGUE MANAGEMENT
M29.1 …
M29.4 The Head of Service or delegate may approve hours additional to those specified in subclause M29.3 for urgent operational requirements.
M29.5 …
M29.6 Subject to clause M30, where the General Manager determines that exceptional operational requirements exist, the General Manager, or their delegate, will consult with affected employees to ensure each employee is agreeable to remaining on duty beyond the end of their shift. Employees will only agree to remaining on duty where they feel they are able to continue performing their duties at an effective level.
M30 EMERGENCY DUTY
M30.1 In an emergency - such as, but not limited to, riot, fire, escape, hostage or emergency escorts - the Head of Service, taking into consideration the personal circumstances of the employee, may direct an employee to report for duty or to remain on duty.
Section P - Alexander Maconochie Centre Arrangements
P1 KEY PRINCIPLES FOR AMC OPERATIONS
P1.1 Staffing arrangements at the AMC will be based on health, safety and security considerations for employees and detainees and the completion of activities outside the accommodation areas such as visits, programs, and education.
P1.2 The minimum staffing for the AMC will be the number of COs required to operate the basic daily routine of the AMC. The basic routine is that of releasing detainees from cells into association areas, maintaining supervision and returning detainees to cells. The Directorate and union acknowledge that the memorandum of understanding covering the AMC 12 hour roster trial remains in force and does not cease operation on the commencement of this agreement.
P1.3 Staffing levels are based on the present detainee capacity of the AMC. In the event of any infrastructure of accommodation changes and increase in detainee numbers in any particular area the parties will consult on any possible additional staffing numbers.
P1.4 The Directorate and union(s) acknowledge that where a post is in use on the day they will be filled, otherwise they will not be filled, and agree that the following CO1 posts are categorised as follows:
…
P1.5 Where insufficient employees are available to fill the posts required on any given day the General Manager or Deputy General Manager, after consultation with employee representatives, may scale down operations or activities for the duration of the shortfall. Reduction in activities will usually occur in non-essential posts initially.
P1.6 …
P2 STRATEGIES TO ADDRESS STAFF SHORTFALLS
P2.1 The General Manager has the delegated authority to fill vacant posts by using the list provided by the roster clerk in accordance with clause P7 in the event that the post needs to be filled.
P2.2 …
P7 FILLING OF TEMPORARY VACANCIES
P7.1 Wherever possible a temporary vacancy, at the CO1 level, of 28 days or greater will be filled on a temporary contract.
P7.2 The filling of all other CO1 vacancies will occur in the following order:
(a) By relief employees not being utilised.
(b) By casual employees.
(c) By employees not on shift called in on overtime.
(d) An employee already on shift being offered a double shift subject to clause M29.
P7.3 In the event that the available shift would take a casual employee over the allowable hours in accordance with clause M29 then another casual will be contacted. If the last available casual employee would also exceed these hours, or none are available, then overtime will be used to fill the vacancy.
P7.4 The filling of all short term vacancies at levels other than CO1 will be as per the following order:
(a) By employees on shift considered suitable for higher duties.
(b) By employees at level on overtime.
(c) By employees considered suitable for higher duties on overtime.
(d) By an employee already on shift being offered a double shift subject to the restrictions re fatigue management.
Long term higher duties will be filled on the basis of merit.”
The Applicant’s case
[8] The CPSU in its submissions set out the background to the dispute, stating that on 16 October 2018 Mr Peach gave notice to custodial operational employees that travel allowance and double time rates provided for in clause C17 of the Agreement would no longer be paid to staff undertaking overtime unless they were directed to report for duty. The CPSU wrote to Mr Peach on 24 October 2018 notifying him of a potential dispute regarding the issue, with Mr Peach responding on 26 October 2018 reiterating that clause C17 would only be invoked in circumstances where the employee had no option but to return to their place of work in circumstances similar to those set out in clause M30 of the Agreement.
[9] The CPSU submitted that the approach outlined in Mr Peach’s letter of 26 October 2018 was inconsistent with the requirements of the Agreement, positing that clause C17 did not require the circumstances anticipated in clause M30 to have arisen.
[10] Key aspects of the CPSU’s submissions included that:
• the Cambridge Dictionary defined the term ‘called on’ which appeared in clause C17 to mean ‘ask to do’;
• to qualify for ‘emergency duty’ an employee must be called on at a time they would not ordinarily have been on duty with no notice of such call having been given to them prior to ceasing ordinary duty, adding that it was characteristically an emergency or a serious situation by virtue of the fact that the employee was called on unexpectedly without notice;
• an emergency as anticipated by clause M30 was a situation of sufficient danger or seriousness as to empower the employer to direct an employee to return to work or remain on duty;
• clause M30 did not constrain the interpretation of clause C17 as it did not reference the latter, appeared in a different section of the Agreement and did not make any stipulation relating to rates of pay;
• if there was ambiguity in the matter, drawing on the decision in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited (Berri) 2, evidence of surrounding circumstances was admissible to aid in the interpretation of the clauses, highlighting that between the introduction of clause M30 and the present dispute there had been a mutual understanding between the Respondent, employees and unions that the provision was not required to enliven clause C17;
• the evidence of Messrs Ryall and Higgins was that during bargaining for the Agreement, the CPSU, employees and the ACT Government all understood that the terms negotiated contained no loss of conditions, positing that the employer now sought to achieve an outcome that it did not address in bargaining and that the outcome sought required an interpretation of the Agreement that was not supported by the wording of the Agreement; and
• the relevant principles in WorkPac Pty Ltd v Skene (WorkPac) 3militated in favour of its interpretation of clause C17.
[11] The CPSU’s oral submissions largely reiterated its written submissions. Beyond that, the CPSU submitted inter alia that:
• the framers of the Agreement did not discuss the interaction of clauses C17 and M30, adding that the material distributed to employees explaining the terms of the Agreement made no reference to any change in respect of the operation of clause C17;
• the common understanding for a long period of time, i.e. the first three years of the Agreement’s operation, was that emergency duty was a form of overtime, positing in response to a question from the Commission that Section P of the Agreement provided context to clause C17 and was not at odds with its interpretation of the provision;
• the wording of clause M30 was not new, drawing as it did on clause R21.7 of the predecessor agreement;
• prior to Mr Peach’s commencement as Executive Director no link had been made between clauses C17 and M30;
• very limited weight should be given to Mr Peach’s evidence as much of it was based on what had been reported to him, i.e. his evidence was hearsay in nature;
• prior to 16 October 2018 nobody from the Respondent had taken steps to apply the correct interpretation of clause C17;
• as neither Ms Smith nor Ms Beattie had been called to give evidence it was open to the Commission to conclude as per Jones v Dunkel 4 that their evidence would not have supported the Respondent’s position;
• clause C17 in providing for travel time and payment at double time did something not done elsewhere in the Agreement; and
• because it was commonplace for people to be called in to fill a staffing vacancy did not mean that the situation was not an emergency, pointing to the principles regarding minimum staffing set out in Section P of the Agreement.
[12] Mr Higgins provided two witness statements 5.
[13] In his first witness statement Mr Higgins deposed inter alia that clause C17 was a core clause in the enterprise agreements which cover a range of ACT Government workplaces, adding that the core agreement also contained provisions relating to close call and on-call rosters. Mr Higgins further deposed that the interaction between these provisions had always been well understood and that the most recent round of negotiations had clarified the interaction of these provisions in the Emergency Services Agency, which is part of the ACT Government’s Justice and Community Safety Directorate. More particularly, Mr Higgins deposed that in those negotiations it was reiterated that staff were either receiving an on-call or close call allowance or, if they were called in unexpectedly, received an emergency duty payment. Mr Higgins also referred to an incident involving employees of the Environmental Protection Agency where they were paid under the emergency duty provision. In addition, Mr Higgins stated in his witness statement that clause M30 did not exist prior to the Agreement, with clause C17 the only clause relating to emergency duty under previous ACT Government enterprise agreements.
[14] In his second witness statement Mr Higgins refuted aspects of the Respondent’s submissions, drawing on April 2017 correspondence between the Deputy Director-General of the ACT Government’s Chief Minister, Treasury and Economic Development Directorate and the CPSU setting out the ACT Government’s wages policy for the 2017-2018 bargaining round and minutes from the 2011 ACT Government bargaining round. Also attached to Mr Higgins second statement were letters from 41 CPSU members who voted on the Agreement stating that it was their understanding at the time they voted on the Agreement that it did not entail any reduction to their entitlements. The letters which were in identical terms but for the signatory’s personal details were all dated either 25, 26 or 27 March 2019 (except for one letter which was unsigned and undated).
[15] Key aspects of Mr Higgins oral evidence included that:
• he had no involvement in the negotiations for the Agreement;
• the 41 letters from CPSU members attached to his second statement had been prepared by the CPSU for the purposes of these proceedings, acknowledging that the letters had not been prepared contemporaneously with negotiations for the Agreement;
• the reference to ‘urgent operational reasons” in clause M29.4 of the Agreement may include a situation where the Alexander Maconochie Centre did not have enough staff, noting that clause M29.4 did not deal with what remuneration applied in these circumstances;
• it was rare for ACT Corrective Services to use clause M30, adding that clause M30 concerned those situations where there was a threat to life; and
• it was confusing for the Agreement to have two provisions relating to emergency duty.
[16] Mr Ryall in his witness statement 6 stated that he led the CPSU bargaining team for the negotiation of a number of ACT Government agreements in the 2013-2017 bargaining round and that the underlying premise of the negotiations was “no loss of conditions”. Among other things, Mr Ryall deposed that:
• during discussions in the 2013-2017 bargaining round neither party proposed changes to clause C17 nor was there any discussion about how clauses C17 and M30 would interact or that clause M30 would limit the operation of clause C17; and
• as evidenced by the explanatory material prepared by both parties regarding the Agreement, the introduction of clause M30 was only intended to be an edit of a technical nature and not intended to reduce current conditions or practice.
[17] Attached to Mr Ryall’s witness statement was a copy of a document 7 produced by the employer to track the progress of bargaining in relation to specific clauses. While the document does not refer to clause C17, it includes the following reference to what is clause M30 (referred to as clause M29 in the table below). I note that the document appears to be limited to those sections of the ACT Public Service Justice and Community Safety Directorate Enterprise Agreement 2011-2013 (the 2011 Agreement)8 which apply to specific business units/organisations groups.
Clause (2011-13 EA) | CPSU Claim | ACTCS Claim/Response to CPSU | Status | Action |
R21 and U11 – Fatigue Management | Consolidate two clauses dealing with the same issue; crate specific headings for the different organisational areas | Agree, subject to keeping a reference to the SCC | New Clause M28 created | |
R21.7 – Fatigue Management | Clause should stand alone as it is [sic] relates to a different issue (emergency situations) | Agreed | New Clause M29 created (Emergency Duty) |
[18] Also attached to Mr Ryall’s witness statement were copies of the explanatory material produced by the CPSU 9 and the Respondent10 regarding the Agreement. Neither document refers to clauses C17 or M30.
[19] Mr Ryall’s oral evidence was consistent with his witness statement, though he did attest that the CPSU had the opportunity to correct any errors in the document produced by the employer to track the progress of bargaining and that the document was not produced right through until the end of the negotiations.
[20] Mr Baynham in his witness statement 11 deposed that it was part of his duties and responsibilities to contact staff to come in and assist with staffing deficiencies. Among other things Mr Baynham deposed that when deciding who to call on to try and fill unscheduled absences the common approach was to first attempt to contact those employees who had made themselves available via an informal ‘voluntary list’ and that when that list was exhausted without getting the required number of people to agree to work he commenced cold calling other employees. Mr Baynham also deposed that as a CPSU delegate he had been involved in various fora in 2004 and on at least two other occasions at which the application of emergency duty had been questioned, adding that on each occasion the decision had been to maintain the application of emergency duty as it had been applied up until 1 November 2018. Mr Baynham also stated in his witness statement that he understood from all the information available to him regarding the Agreement during the consideration period for the Agreement that it would not negatively affect his entitlement to emergency duty payments.
[21] Under cross-examination Mr Baynham was questioned about the process for filling unscheduled absences. Key aspects of Mr Baynham’s evidence in that regard were that people nominated to be on the ‘voluntary overtime list’, when he contacted people on the list they were not directed to attend work, when he called others who were not on the list they did not have to accept the offer of an additional shift and staff calling in sick was an everyday occurrence. In response to questions from the Commission, Mr Baynham stated that he could not recall a situation where anyone had been directed to come to work to backfill an unscheduled absence and that safety concerns were the reason why backfilling an unscheduled absence constituted an emergency. Mr Baynham also stated that the process set out in clause P7.2 of the Agreement was the process followed at the moment to fill temporary vacancies and acknowledged that clauses P2 and P7 of the Agreement did not refer either to staffing shortfalls as an emergency or to clauses M30 or C17. Beyond that, Mr Baynham attested that he asked CPSU delegates involved in the negotiation of the Agreement why clause M30 had been introduced given clause C17 of the Agreement, adding that their response was that clause M30 was intended to clarify the power of the Executive Director – ACT Corrective Services to override the Agreement’s fatigue management provisions.
The Respondent’s case
[22] The Respondent contended that payment for emergency duty only arose under clause C17 of the Agreement where an employee was directed to attend for duty to meet an emergency in circumstances where the employee would not ordinarily have been on duty at that time and was not given notice of the need to attend prior to ceasing his or her ordinary duty.
[23] The Respondent noted that the applicable principles for interpreting an enterprise agreement were recounted by the Full Court of the Federal Court in WorkPac. The Respondent further noted that the Agreement did not define the term ‘emergency’. As such the Respondent drew on the ordinary modern use definition of ‘emergency’ in the Oxford English Dictionary 12, contending that while the definition was different from the Cambridge Dictionary definition cited by the CPSU it was clear that both definitions connoted the idea of something pressing or out of the ordinary. This, the Respondent posited, supported its interpretation of the Agreement in so far as it meant that emergency duty was payable when an employee had been called on duty without prior notice as a result of an event that had created a situation that was ‘dangerous’, ‘serious’ or ‘urgently demanding immediate action’, adding that such a situation was not satisfied when an employee was simply asked and agreed to perform overtime without notice. The Respondent further submitted that the phrase ‘to meet an emergency’ plainly had work to do in clause C17.1, positing that it required there to be an emergency as the reason for calling the employee to duty unexpectedly.
[24] The Respondent also canvassed the meaning of the term ‘called’ in clause C17.1 in its submissions as the Agreement did not define the term. Drawing on the definition of ‘called’ in the Oxford English Dictionary (under “III. Senses in which summoning, invoking, or requesting is the primary meaning), the Respondent submitted that the ordinary meaning of the term carried both an imperative sense (i.e. summon, command) as well as an optional sense (i.e. ask, invite) and that as such the dictionary meanings did little to resolve the issue in dispute. The Respondent further submitted that, when one had regard to the purpose of clause C17.1, there was a strong indication that the relevant ordinary meaning was the imperative sense as opposed to the optional sense, i.e. the term ‘called’ meant ‘commanded’ in the sense that there was no option involved as to whether to attend and that emergency duty was therefore be payable.
[25] Beyond that, the Respondent submitted inter alia that:
• having regard to clause M30 and its placement in the Agreement indicated that the clause was about giving it the power to direct an employee to attend for duty in an emergency whereas clause C17 was about prescribing the entitlement that the employee would receive once it had exercised that power;
• clause C17.1 was not concerned with the process of directing an employee to attend for duty but rather with the entitlement that post-dates that process where no prior notice was given, adding that clauses C17 and M30 had the same title because they were concerned with two aspects of the same thing;
• the non-exhaustive set of examples of emergencies given in clause M30 provided a strong indication of what situations were intended to qualify as an ‘emergency’ for the purposes of clause C17;
• in the light of s.26 of the Corrections Management Act 2007 (ACT), which deals with the declaration of emergency in relation to a correctional centre, the concept of an ‘emergency’ referred to a situation involving a threat or likely threat to security or safety;
• the CPSU’s interpretation of clause C17.1 did not accord with the notion of ‘emergency’ as it was understood in the above context;
• the Emergencies Act 2004 (ACT) defined an emergency as “an actual or imminent event that requires a significant and coordinated response”, with examples of events including fire, flood, storm or earthquake, accident or explosion, epidemic or animal disease, shortage of electricity, gas, fuel or water, adding that this accorded with its interpretation of clause C17;
• the CPSU’s reliance on evidence about practices in the Emergency Services Agency and Environmental Protection Agency was misplaced as the examples cited by Mr Higgins in his witness statement plainly referred to emergencies as opposed to examples of a practice in which the offer without prior notice and acceptance of overtime in of itself entitled an employee to be paid for emergency duty;
• there was no occasion to resolve any ambiguity regarding clause C17 by resorting to extrinsic material demonstrating the surrounding circumstances at the time of making the Agreement; and
• the CPSU’s contention that the evidence of Messrs Ryall and Higgins demonstrated that until the present dispute there had been a mutual understanding between the parties that clause M30 was not required to enliven the provisions of clause C17 alluded to what the “parties” purported subjective intentions were, noting that the notion that there was an “agreed” or “mutually understood” interpretation was plainly contradicted by the process which led to the present dispute.
[26] The Respondent drew on the decision in Health Services Union v Ballarat Health Services 13 in support of its submissions.
[27] The Respondent’s oral submissions largely elaborated on its written submissions. As to the CPSU’s evidence, the Respondent submitted inter alia that:
• Berri and WorkPac were relevant authorities regarding the interpretation of agreements;
• Section P of the Agreement, which did not reference emergency duty, described the process for dealing with staff shortages at the Alexander Maconochie Centre in a way that by and large mirrored the evidence of Messrs Peach and Baynham;
• Mr Higgins’ evidence was not helpful given that he had not been involved in the negotiations for the Agreement;
• the letters from CPSU members attached to Mr Higgins’ second witness statement should be rejected because they were subjective, not contemporaneous and were self-serving in that they were produced solely for the purpose of these proceedings;
• Mr Ryall’s evidence confirmed that there was no discussion regarding clause C17 in the negotiations for the Agreement, adding that he was unable to give evidence as to what the parties to the negotiations understood;
• in respect of clause M30, the document attached to Mr Ryall’s witness statement (see paragraph [17] above) indicated that the CPSU considered that having the provision as part of the clause dealing with fatigue management was odd on the basis that it related to something other than fatigue management;
• Mr Baynham’s evidence made it clear that calling people in as a result of staff absences was an everyday occurrence; and
• Mr Baynham’s evidence that he had in the past been paid emergency duty was merely evidence of a practice that was now in dispute.
[28] Mr Peach provided two witness statements 14 in which he deposed among other things that:
• he was not involved in the negotiations for the Agreement, though based on briefings he received from Ms Elizabeth Beattie, the Respondent’s Senior Manager, HR Operations, he was aware that the correct interpretation of clause C17 was not given any attention during those negotiations;
• a potential issue regarding the incorrect interpretation and application of clause C17 only came to his attention around December 2017 as a result of a discussion with CPSU Organiser, Mr Bill Irvine;
• in September 2018 Ms Beattie advised him that the Respondent’s practice regarding the payment of emergency duty had been confirmed as being erroneous and not in compliance with the Agreement, with the issue identified as a result of a review of the business rules of Kronos (the Respondent’s workforce management system);
• he had been advised by Ms Louise Smith, a Kronos Project Officer, who was involved in the 2016 upgrade of Kronos that at the time she noticed inconsistencies and irregularities in the application of emergency duty payments and that she raised her concerns with managers, including Ms Beattie, with that ultimately resulting in Ms Beattie raising the issue with him in September 2018;
• a key consideration for him regarding the payment of emergency duty was the expenditure of public monies in accordance with the Agreement and his responsibilities under the Financial Management Act 1996 (ACT);
• he disagreed with Mr Baynham’s description of the process for filling shifts caused by staff absences within ACT Corrective Services, adding that there was no direction or requirement for staff to attend duty and that the acceptance of overtime was entirely voluntary;
• he had been advised by the Respondent’s senior human resources staff, including Ms Donna Burns (Acting Senior Manager, HR Operations) that the Respondent did not have any records or corporate knowledge to substantiate Mr Baynham’s statement that the Respondent had agreed to the payment of emergency duty in accordance with its previous practice;
• he had been advised that there had been instances in the past when Payroll Services had queried the application of emergency duty in particular cases with ACT Corrective Service’s roster clerks, adding that to the best of his knowledge and according to advice he had received from his staff any apparent systemic issue with the application of emergency duty had not been elevated to the Respondent’s managers; and
• he did not consider that clause C17 or M30 related to matters of staffing as part of usual workplace rostering at the Alexander Maconochie Centre as the clauses anticipated exceptional circumstances outside those already provided for by the availability of overtime in accordance with clause C9 of the Agreement, noting that Section P of the Agreement set out key principles for Alexander Maconochie Centre operations regarding issues such as minimum staffing and essential posts.
[29] Mr Peach’s oral evidence largely reflected his witness statements. Beyond that, Mr Peach attested that:
• Payroll Services just processed payment requests based on information entered into Kronos by the Respondent’s Roster Clerks;
• he was aware that Ms Smith had spoken to Ms Beattie about emergency duty payments but was not aware of the other managers she had spoken to regarding the issue;
• with regard to Section P of the Agreement, the Alexander Maconochie Centre never operated at minimum staffing level as there were other staff who were reallocated to perform essential duties;
• if the Alexander Maconochie Centre got to the minimum staffing level he would call people in on emergency duty, adding this had not yet occurred;
• those staff who nominated to be included on the voluntary overtime list were not directed to return to work when contacted regarding additional shifts;
• other staff who were contacted to fill short term vacancies (i.e. those staff not on the voluntary overtime list) performed additional work on a voluntary basis, adding that those staff were not asked to come in to work but rather were asked if they would like to come in to work; and
• prisoner lock-ins were used to mitigate the danger for staff and did not constitute an emergency because the prison remained safe and secure.
Consideration of the issues
[30] The Full Court in WorkPac summarised the principles applicable to the interpretation of enterprise agreements as follows:
“The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 at 378 (French J). The interpretation “ … turns on the language of the particular agreement, understood in the light of its industrial context and purpose … ”: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378-9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).” 15
[31] The principles relating to the interpretation of enterprise agreements were also set out in Berri. The principles are set out below:
“[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.” 16
[32] As noted in both WorkPac and Berri the resolution of a disputed construction of an agreement turns on the language of the agreement having regard to its context and purpose. In this case, clause C17 of the Agreement appears in that section of the Agreement dealing with rates of pay and allowances whereas clause M30 appears in the section of the Agreement dealing with ACT Corrective Services Correctional Officers. Both provisions need to be read in the context of clause A2.1 of the Agreement which sets out the ‘Main Purpose’ of the Agreement. When read in that context, clause C17 appears in that part of the Agreement which reflects “common terms and conditions that apply across the Australian Capital Territory Public Service” as per clause A2.1, while clause M30 appears in the first of four Sections which provide “terms and conditions that reflect the operational and business requirements of particular business units or organisational groups” as per clause A2.1. Also relevant is clause M1 of the Agreement which provides that “Section M applies to all Correctional officers in ACT Corrective Services unless specified” (underlining added). I note that there is nothing in either clause C17 or clause M30 that excludes the operation of either provision in respect of Correctional Officers in ACT Corrective Services, nor is there a provision in the Agreement which indicates that the ACT Public Service wide terms and conditions prevail over business unit/organisational group specific provisions or vice-versa. Taken together, the above analysis points to clauses C17 and M30 having to be read together and therefore operating in tandem in respect of Correctional Officers covered by the Agreement.
[33] It is clear from reading clauses C17 and M30 together that they use different terminology, i.e. ‘called on duty’ in clause C17 as opposed to ‘direct an employee to report for duty’ in clause M30. A key issue in this matter is whether those terms mean the same thing or alternatively have different meanings. In considering that issue I note that both WorkPac and Berri state that the starting point in interpreting an enterprise agreement is the ordinary meaning of the words. However, before exploring that issue I wish to set out some key points which can be distilled from the evidence in this case and a reading of the Agreement. Those key points are that:
• clauses C17 and M30 both concern emergency duty and do not cross-reference each other;
• the Agreement does not define the term ‘emergency’ nor does clause C17 provide any guidance as to what might constitute an emergency, however clause M30 includes a non-exhaustive set of examples of emergencies;
• the set of examples of emergencies in clause M30 does not include the need to fill vacancies arising from staff absences;
• clause C17 sets out the payments applicable in circumstances where an employee performs emergency duty;
• clause M30 makes no mention of the payments that apply when an employee is directed to perform emergency duty in accordance with the provision;
• having to fill vacancies arising from staff absences is an everyday occurrence within ACT Corrective Services;
• Correctional Officers who are contacted while not on duty and asked to work an additional shift due to a staff absence are not directed “to report for duty” as per clause M30 and can say “no” to the offer of an additional shift, i.e. they either agree to perform such work or refuse the offer of additional work;
• the approach outlined in the previous point to filling vacancies arising from staff absences is consistent with the approach set out in clause P7.2 of the Agreement;
• issues as to the interaction of clauses C17 and M30 were identified as a result a review of the business rules of Kronos, with Mr Peach receiving advice from Ms Beattie in September 2018 that the Respondent’s application of clause C17 was erroneous and not in compliance with the Agreement;
• issues regarding the interaction of clauses C17 and M30 were first identified some two and a half to three years after the Agreement commenced operation and after the Agreement had passed its nominal expiry date on 30 June 2017, with up until then the Respondent paying emergency duty in accordance with clause C17 in circumstances where Correctional Officers not on duty and who had not been advised of the likelihood of being contacted before they ceased duty accepted the offer of an additional shift as a result of a vacancy arising from staff absences; and
• clause C9.7 which sets out the minimum attendance for overtime that is not continuous with ordinary duty does not refer to clause C17.
[34] Against that background, what then is the ordinary meaning of the term ‘called on’ in clause C17? As posited by the Respondent the conflicting dictionary definitions cited by the CPSU and it do not assist in resolving the meaning of the term. However, some guidance can be drawn from clauses P7.2(c) and (d) which use the terms ‘called in on overtime’ and ‘offered a double shift’ respectively. These provisions suggest that the term ‘called in’ means more than simply being asked to perform overtime to fill a temporary vacancy. If not, the clause would refer to employees not on duty being ‘offered’ overtime shifts consistent with the terminology used in clause P7.2(d). This in turn supports a finding that the term ‘called on’ in clause C17 requires an employee who is not on duty to be directed or required to return to duty to be eligible for emergency duty payments, i.e. ‘called on duty’ entails more than simply being asked to and agreeing to perform an additional shift to fill vacancies created by staff absences. Mr Baynham’s evidence that the process set out in clause P7.2 of the Agreement was the process currently followed by the Respondent to fill temporary vacancies provides further support for that interpretation.
[35] As to the ordinary meaning of the term ‘emergency’, the Respondent drawing on the dictionary definitions cited by both the CPSU and it posited that the term involved a situation that was ‘dangerous’, ‘serious’ or ‘urgently demanding immediate action’. Such a definition is consistent with the examples of emergencies cited in clause M30 of the Agreement and would commonly be considered as the ordinary meaning of the term. The situation where an employee not on duty accepts an offer of an additional shift to fill a vacancy arising from staff absences does not in my view come within the ordinary meaning of the term ‘emergency’ as used in clause M30 and by extension clause C17 of the Agreement. I further note that clause P7.2(c) of the Agreement which sets out the process for filling temporary vacancies at the Alexander Maconochie Centre refers to ‘employees called in on overtime’ (underlining added) as opposed to ‘employees called in on emergency duty’. This latter point in my view does not support the CPSU’s interpretation of clause C17 of the Agreement.
[36] In summary and for the reasons outlined above, the material before the Commission supports the following findings:
• clauses C17 and M30 need to be read together given clause A2.1 of the Agreement;
• the term ‘called on duty’ in clause C17 means being directed or required to return to duty as opposed to agreeing to return to work;
• the term ‘emergency’ in clauses C17 and M30 means a situation that is ‘dangerous’, ‘serious’ or ‘urgently demanding immediate action’, with that meaning consistent with the set of examples of emergencies included in clause M30;
• to be eligible for emergency duty payments as per clause C17 an employee must be directed or required to return to duty to meet and emergency at a time when they would not normally be on duty and in circumstances where no notice of this requirement was given to the employee prior to ceasing ordinary duty; and
• being asked and agreeing to perform an additional shift to fill a vacancy arising from staff absences does not constitute an emergency for the purposes of clauses C17 and M30, meaning that an employee is not entitled to emergency duty payments in accordance with clause C17 in these circumstances.
[37] I would also observe that it is arguable in respect of those employees who put their name forward for inclusion on the voluntary overtime list that they might anticipate being called as to whether they wish to accept an additional shift in circumstances where staff absences are an every-day occurrence in ACT Corrective Services. In other words, it is arguable that these employees do not satisfy one of the requirements in clause C17.1 as to eligibility for the payment of emergency duty.
[38] Before concluding I wish to briefly deal with several aspects of the CPSU’s submissions.
[39] With regard to the CPSU’s contention regarding post-Agreement conduct, in circumstances where the evidence indicates that clause C17 was not canvassed in the negotiations for the Agreement and the negotiations resulted in clause M30 being introduced as a stand-alone provision (rather than a subclause in the provision relating to fatigue management), it is perhaps not surprising that issues regarding the interaction of clauses C17 and M30 were not identified for some time. In short, it appears that no one really thought about the consequences of establishing clause M30 as a stand-alone provision when negotiating the Agreement. Drawing on the language of principle 15 in Berri, such post-agreement conduct appears to amount to little more than the absence of a complaint or common inadvertence and as such is insufficient to establish a common understanding. The CPSU also contended that the Commission should infer from the Respondent’s failure to call either Ms Beattie or Ms Smith that their evidence would not have supported the Respondent’s position. However, in circumstances where I consider Mr Peach to be a credible witness and in the absence of any probative material contradicting Mr Peach’s evidence, I do not consider that such an inference can be drawn in this case.
[40] As noted above, Mr Higgins evidence referred to the approach adopted by both the Emergency Services Agency and Environmental Protections Agency. While I note Mr Higgins’ evidence, no evidence was put before the Commission as to the terms of the relevant enterprise agreement operating in respect of those agencies beyond the existence of an equivalent provision to clause C17 of the Agreement, i.e. it is not known if the relevant agreement(s) includes an equivalent provision to clause M30 of the Agreement and if so whether that provision applies to either agency. Accordingly, I have attached no weight to the evidence regarding the practice in respect of emergency duty which applies in those agencies not only for that reason but more importantly because to do so would be inconsistent with clause A2.1 of the Agreement which provides inter alia that the purpose of the Agreement “is to provide … and terms and conditions that reflect the operational and business requirements of particular business units and occupational groups.”
[41] Finally, while I note the 41 letters from CPSU members attached to Mr Higgin’s second witness statement 17, in so far as those letters set out what the signatory’s understanding of the effect of the Agreement that amounts to little more than their subjective understanding. As such, the letters are of little, if any, value in interpreting the Agreement. Similarly, I have had no regard to the other documents attached to Mr Higgin’s second witness statement, primarily because those documents either relate to negotiations for the 2011 Agreement18 or the ACT Public Service 2017-2018 bargaining round (i.e. the bargaining round after the round which resulted in the Agreement).19
Conclusion
[42] For all the above reasons, I find that Correctional Officers employed by the Respondent are not entitled to be paid emergency duty as per clause C17 of the Agreement in circumstances where they are not on duty and are offered and accept the offer of an additional shift to fill vacancies created by staff absences in circumstances where had no notice of such an offer prior to ceasing ordinary duty. In other words, to be eligible for emergency duty an employee who is not on duty must be directed to return to duty as a result of an emergency of the sought set out in clause M30 of the Agreement without having been forewarned of that possibility.
Appearances:
M. Cornthwaite for the Applicant.
P. Bindon of Counselfor the Respondent.
Hearing details:
Canberra.
2019
April 8 and May 24.
Printed by authority of the Commonwealth Government Printer
<PR716115>
1 AE414649
2 [2017] FWCFB 3005
3 [2018] FCAFC 131
4 (1959) 101 CLR 298
5 Exhibits 1 and 2
6 Exhibit 3
7 Ibid at “IR-1”
8 AE891006 and ibid at “IR-2”
9 Ibid at “IR-3”
10 Ibid at “IR-4”
11 Exhibit 4
12 “(a) (The ordinary modern use.) A juncture that arises or ‘turns up’; esp. a state of things unexpectedly arising, and urgently demanding immediate action.”
13 [2011] FCA 1256
14 Exhibits 5 and 6
15 [2018] FCAFC 131 at [197]
16 [2017] FWCFB 3005 at [114]
17 Exhibit 2 at “BH2-3”
18 Ibid at “BH2-2”
19 Ibid at “BH2-3”
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