D&D Traffic Management Pty Ltd

[2021] FWC 1017

[2021] FWC 1017

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

D&D Traffic Management Pty Ltd
(AG2020/3491)

D&D TRAFFIC MANAGEMENT & OTHER WORK ENTERPRISE AGREEMENT 2020

Traffic Management
DEPUTY PRESIDENT CROSS	SYDNEY, 24 FEBRUARY 2021

Application for approval of the D&D Traffic Management & Other Work Enterprise Agreement 2020 – interim decision.

[1] An application has been made for the approval of an enterprise agreement known as the D&D Traffic Management & Other Work Enterprise Agreement 2020 (the Agreement). The application was made by D&D Traffic Management Pty Ltd (the Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single-enterprise agreement.

[2] The Agreement will cover 271 employees of the Applicant. On 16 November 2020, a Form F16 Application for approval of the Agreement was made, and filed together with a Form F17 Statutory Declaration.

[3] On 14 December 2020, the Australian Workers Union (the AWU), wrote to the Fair Work Commission (the Commission) enclosing a Form F18 Declaration. The AWU’s correspondence outlined certain undertakings proposed by the Applicant that it considered appropriate, but outlined a number of issues that resulted in the AWU opposing approval of the Agreement.

[4] On 18 December 2020, the Commission conducted a hearing to attempt to resolve the outstanding issues between the parties. Arising from that hearing, the Applicant was directed to advise the Commission and the AWU by 13 January 2020, as to whether it pressed the Application. If the Applicant was to press the Application it was directed to file further materials by 13 January 2020, and the AWU was to respond to those materials by 20 January 2020.

[5] On 13 January 2021, the Applicant filed:

(a) an outline of Submissions of the Applicant (the Applicant’s Submission);

(b) an Affidavit of William MacNamara dated 13 January, 2021, dealing with the Agreement voting process;

(c) an Affidavit of Ranko Stanojlovic dated 13 January, 2021, also dealing with the Agreement voting process;

(d) various documents relating to voting; and

(e) an undertakings document that provided 15 undertakings, many of which resolved issues raised at the hearing on 18 December 2020. That Undertaking document was, insofar as it specified undertakings, as follows:

UNDERTAKINGS

D & D Traffic Management & Other Work - Enterprise Agreement 2020 AG2020/3491

On behalf of D & D Traffic Management Pty Ltd undertakings are hereby given as follows:

1. With respect to Clause 5 of the Agreement, the commencement date will be on the first Saturday to occur on or after 14 days from the date of approval of the Agreement by the Fair Work Commission.

2. In relation to the additional week of annual leave under the National Employment Standards (NES) for certain shiftworkers, the following definition of shiftworker shall apply to employees other than those within the coverage of the Building & Construction General On Site Award 2010 as amended, in lieu of the definition at cl. 11 of the Agreement:

For the purpose of the additional week of annual leave for shiftworkers under the NES, a shiftworker is an employee who works ordinary hours over 7 days of the week and is regularly rostered to work on Sundays and public holidays.

3. The Agreement is subject to the NES. Where the NES provides a greater benefit than the Agreement in a particular respect, the NES provision will prevail in that respect.

4. The wage rates set out on Annexure 1 to these undertakings will be taken to have applied at the time the Agreement was made, and shall apply under the Agreement in substitution for those set out at A2 of the Agreement.

5. Where the employer has given notice of termination to a non-casual employee, rather than payment in lieu thereof, the employee must be allowed time off without loss of pay of up to one day for the purpose of seeking other employment.

6. Where an employee (other than a casual employee) is engaged within the coverage of the Building & Construction General On Site Award 2010 as amended, the industry- specific redundancy scheme set out in that Award shall apply to them in lieu of cl. 21 and the NES redundancy provisions, provided that where the NES would have provided a better outcome in a particular case the NES redundancy provision will apply.

7. In relation to Clause 8 c. the third paragraph shall be taken to read:

Where five consecutive night shifts are not worked across the business, or where work on night shift does not form part of a system of work in which operations are being continued by the employment of a group of employees upon work on which another group had been engaged previously across the business, then employees on Traffic Management work will be paid the applicable time & a half rate, specified in Annexure A, for all ordinary time during such a shift.

8. In relation to cl. 12 b., this shall be taken to read:

Any employee whose work continues more than 1.5 hours beyond and continuous with their rostered ordinary hours will be paid a meal allowance as specified in Appendix A.

9. The minimum engagement provisions of cl. 13 of the Agreement shall apply to full- time and part time employees as well as casual employees.

10. In relation to clause 18 (h), the words A weekly employee … at the beginning of the first sentence shall be taken to read An employee…

11. In relation to clause 25, the first sentence of the clause shall be taken to read:

Employees shall be paid at their appropriate rate for time spent in undertaking training which they have been directed to undertake by the Employer.

12. For the avoidance of uncertainty, cl. 27 a) `shall be taken to read:

The Employer shall have the right to stand down employees (without pay) during a period in which the employees cannot usefully be employed because of one of the following reasons:

i) Industrial action, or

ii) A breakdown of plant machinery or equipment, or

iii) Any stoppage of work

for which the employer cannot be held reasonably responsible

13. For the avoidance of uncertainty, in relation to cl. 30 of the Agreement the term “average traffic management ordinary hour weekly earnings” includes, in the case of shift workers, shift loadings.

14. In relation to requests for flexible work arrangements, the provisions set out on Annexure 2 shall apply.

15. In circumstances where employees are working in general building and construction, or in metal and engineering construction, as those terms are defined at cl. 4.10 of the Building and Construction General On-site Award 2010, the provisions relating to ight shift work set out on Annexure 3 of these undertakings will apply in lieu of those set out at cl. 8 c of the Agreement.

Signed for D & D Traffic Management Pty Ltd: ………………………………………

Article I. Geoff Hogbin

Manager Industrial Relations

[6] On 21 January 2021, the AWU filed an Outline of Further Submissions for the AWU (the AWU Submission).

[7] On 4 February 2021, the Commission conducted a further hearing to determine whether the Agreement could be approved.

Issues between the Parties

[8] The issues between the parties have significantly narrowed, and the only outstanding issues between the parties are:

(a) The definition of “Shiftwork” under the Building and Construction General On-Site Award 2010 (the Award), at Clause 34.2(a), and how it interacts with Clause 8 of the Agreement: and

(b) The Overtime Meal Allowance provided by Clause 12(b) of the Agreement.

Shiftwork

[9] The Award defines “shiftwork” in clause 34.2(a), as follows:

shiftwork means any system of work in which operations are being continued by the employment of a group of employees upon work on which another group had been engaged previously

[10] Clause 8 of the Agreement provides:

8. HOURS OF WORK, OVERTIME AND SHIFT LOADINGS

a. Ordinary hours of work

i. The ordinary hours for all employees under this agreement shall be 38 hours per week to be worked from Monday to Friday between the hours of 6am and 6pm with a maximum of 8 ordinary hours per day.

ii. The nominal ordinary hours for weekly full-time employees shall be eight (8) per day, with 0.4 of an hour each day accruing towards a rostered day off (RDO). Accrued RDO’s can be taken at any time by agreement between the individual employee and the company, with a maximum of 2 days’ RDO accrued before they must be used.

iii. Due to the nature of their engagement RDO’s will not apply nor will they be accrued by Casual employees. Ordinary hours will be paid up to 8 hours per day, with hours in excess on a given day, or 38 hours in any given week, paid as overtime

iv. There will be no penalty for working on construction industry RDOs

v. Time worked is only paid for time spent from start to finish of traffic management or other work duties at work sites and times must be identified on an authorized time sheet/hire docket

vi. For the purpose of this clause travel between work sites on the same shift is to be counted as time worked. Travel time from home or pick up point, to and from the work site, is not counted as time worked.

b. Overtime

i. All employees shall be paid overtime for time worked in excess of their 8 ordinary hours set out in sub-clause 8.a.i. of this Agreement at the rates specified in Annexure A.

Casual employees will be paid overtime in line with clause 8 a iii above

ii. Traffic Management employees on Night Shift who have not received notice of their shift 48 hours prior to starting work will be paid overtime at the applicable rate in Annexure A.

Such payment shall not be made to employees identified as permanent night shift workers or casual employees where:

(a) they are notified of a shift, but the location, start or finish time is altered

(b) the shift is cancelled & the employee is allocated to an alternative shift

(c) they are a casual employee & replace a person who was originally allocated that shift

Reasonable Overtime

iii. Subject to this clause, the company may require an employee to work reasonable overtime

iv. An employee may refuse to work overtime in circumstances where the working of such overtime would result in the employee working hours which are unreasonable.

v. For the purposes of this clause, what is unreasonable or otherwise will be determined having regard to:

•  Any risk to employee health and safety.

•  The employee’s personal circumstances including any family and career responsibilities.

•  The needs of the workplace or enterprise.

•  The notice (if any) given by the company of the overtime and by the employee of his/ her intention to refuse it; and

•  Any other reasonable matter.

c. Night Shift

Any employee who works on shifts starting on or after 6 pm and finishing on or before 6am, Monday to Saturday, shall be classified as a night shift for the purpose of this clause and shall be paid at the rate specified in Annexure A All hours worked in excess of 8 hours on such shifts shall be paid at the applicable double time rates specified in Annexure A.

Night shift workers shall be entitled to Crib breaks in accordance with clause 12 of this Agreement.

Where five consecutive night shifts are not worked across the business, then employees on Traffic Management work will be paid the applicable time & a half rate, specified in Annexure A for all ordinary time during such shift.

d. Rest period after overtime duty

When overtime work is necessary it shall, wherever reasonably practicable, be so arranged that employees have a specified rest period after finishing work without loss of ordinary pay. If the company requires an employee to resume work after completing overtime without having had 10 consecutive hours off duty before Traffic Management work or 8 consecutive hours after Other Work they shall be paid at applicable overtime rates in Annexure A, from the time of resumption of work until the employee is released from duty For the purpose of this clause, travel time to and from the work site or depot is not included for measurement of hours worked.

e. Notification of Shift Start Times

It is understood that the company is active in an industry where constant change and flexibility is required to ensure service delivery to meet clients demand. Therefore, flexibility is paramount in ensuring competitiveness within the Traffic Control Industry. Therefore, it is agreed that:

(i) Casual Employees shall be given as much notice as is practical but may be notified up to no later than one (1) hour prior to starting of their next shift start time where client requirements change, or as work requires.

(ii) There may be occasions where shorter notice (emergency) response is required.

f. Hours worked across the Span of Hours

(i) Casual employees shall be paid at the rate applicable for the span of hours in which time is worked, as specified in this clause and Annexure A.

g. Payment

Payment into nominated accounts will be made weekly within four normal working days of the conclusion of the operating pay period. Depending upon Xmas/ New Year close down period, the weekly pay period at that time may be altered or delayed due to the to the business close down

h. Call Back

An employee who is called back to work the same day after having returned home having completed a shift, shall be paid a minimum 3 hours at the applicable double time rate as specified in Annexure A

[11] The issue regarding the interaction between the Agreement and the Award arises from competing positions of the Applicant and the AWU. The AWU asserts that shiftwork clearly requires a specific system of shifts at a single project or site in which there is a rotation of workers. The AWU submits the Agreement allows the Applicant to pay shiftwork loadings instead of overtime rates to employees who would not be considered shiftworkers under the Award, and so is an issue regarding the BOOT test. I understand the AWU contend that the Applicant should give an undertaking to ensure that where a site or project is not operating on a roster system with two consecutive (defined) shifts, overtime is payable for all work undertaken outside the span of day work.

[12] The Applicant on the other hand asserts that the nature of work under the Award is that it is project based. In traffic control the work moves with civil projects, as roads are closed, or construction takes place on roads or bridges or other civil works. Nothing in the Award speaks of the shiftwork being carried out at a single location.

[13] There are two recent single member decisions of the Commission that have considered the correct interpretation of clause 34.2(a) of the Award in relation to traffic management enterprise agreements. They are Re: Retro Traffic Enterprise Agreement 2018 [2019] FWC 2062 (Retro), and Re: Altus Traffic (NSW & Act) Enterprise Agreement 2019 [2019] FWCA 5941 (Altus). In Retro, Commissioner Hampton found clause 34.2(a) of the Award was capable of contemplating various systems of work where there are one or more shifts are supplied across multiple worksites or projects. In Altus, Deputy President Saunders concluded that the continuation of work that is required to satisfy the definition of shiftwork under clause 34.2(a) of the Award is shiftwork at one site, or one project, or (possibly) for one client.

Retro

[14] In Retro, Commissioner Hampton, on remittal from a Full Bench, 1 of which the Commissioner was a member, gave detailed consideration to the proper construction of clause 34.2 of the Award, and the shiftwork objection as raised in the matter at hand, at paragraphs [36] to [61] of his decision as follows (footnotes omitted):

“4. Consideration of the shiftwork objection

[36] The BOOT requires a global comparison between the Agreement and the Award, when applied in the context of the operations of Retro. This is the limited context in which the dispute about the proper application of the shiftwork provisions of the Award has arisen, rather than a direct dispute about whether the approach to hours of work and shiftwork in the Agreement, or Retro’s operations, are of themselves consistent with the Award.

[37] It is common ground between the parties that the Commission should apply the approach to construction of the Award by applying the principles outlined for the interpretation of industrial agreements as recently set out by a Full Court of the Federal Court in WorkPac Pty Ltd v Skene:

“The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”. The words are not to be interpreted in a vacuum divorced from industrial realities; 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. 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.” (citations omitted)

[38] These principles were cited with approval by Rangiah J with regard to awards in Swissport Australia Pty Ltd v Australian Municipal Administrative Clerical and Services Union (No 3).

[39] As a result, it is important to consider the entire shiftwork provisions of the Award (and the Agreement) when ascertaining the objective intention. The analysis of the individual provisions, and their placement and context, are elements of that overall consideration.

[40] I add that to the extent that Retro seeks to rely upon previous enterprise agreements in which the AWU was a party (or at least covered by the instrument) apparently applying the approach evident in this Agreement, I do not consider that such carries any weight for present purposes. Unless the Commission has expressly considered the issue, these are no assistance in the proper application of the Award or this Agreement for present purposes.

[41] The industrial context for the Award includes that it applies to building construction and maintenance, engineering construction, and civil construction sectors. Retro operates in the civil construction sector and traffic control operations of that kind are expressly included in the relevant scope. There are different shiftwork provisions in the Award and the civil construction provisions in clause 34.2 of the Award are fundamentally drawn from the former Australian Workers’ Union Construction and Maintenance Award 2002. The civil construction sector includes coverage of a wide variety of businesses and operations and includes construction, repair, maintenance and demolition of civil and/or mechanical engineering projects and other structures and facilities, and the associated activities.

[42] It is also notorious that the civil construction sector includes major projects and smaller works and that each is likely to involve multiple employers who may come and go from the project as the various stages are undertaken. This includes certain contactors, including testers, batch plants and, relevantly, traffic maintenance. These, and many other trades and services, are also likely to involve employees who are allocated to a variety of projects and jobs at any one time. Retro is a good example of this. The provisions of the Award must in my view be assessed having regard to the nature of the industry that it seeks to cover.

[43] The evident purpose of the shiftwork provisions of the Award is to provide a system of work (rostering and payments) outside of the normal parameters of the ordinary hours specified in clause 33. That is, a system whereby employees may be rostered to work at various times in ordinary time, with additional payments and some other parameters which reflect the disutility of that work.

[44] I turn to consider the ordinary meaning of the words of the Award in that context. These have been set out earlier in this decision. This includes a definition of shiftwork and definition of day, afternoon and night shifts (clause 34.2(a)) and various entitlements and parameters.

[45] Shiftwork is defined in clause 34.2(a) as being “any system of work in which the operations are being continued by a group of employees.”(emphasis added) Unless there are contextual or express reasons to read this expression narrowly, I do not consider that I should do so. Indeed, these considerations support a broad reading of the provisions and for reasons outlined below, it would seem to me that this definition is capable of contemplating various systems of work where there are one or more shifts (as defined) and other systems where the operations in a general sense are continued by or from a group of employees who are not shiftworkers as defined.

[46] In AMWU v CBI, the Deputy President was dealing with the proper interpretation of an enterprise agreement which contained the following shift work definitions:

“18.13 Shift Work

18.13.1 Definitions:

18.13.1.1 “Shift work” means any system of work in which operations are being continued by a group of Employees upon work on which another group had been engaged previously and where Employees work either a Day shift, Afternoon shift or Night shift.

18.13.1.2 “Day shift” means any shift starting on or after 6.00am and before 10.00am.

18.13.1.3 “Afternoon shift” means any shift starting at or after 10.00am and before 8.00pm.

18.13.1.4 “Night shift” means any shift starting at or after 8.00pm and finishing at or after 8.00am.

18.13.2 Employees (other than those under the age of 18 years) agree to work shift work when required by the Company.

18.13.2.1 The Company must give an Employee 48 hours’ notice of its intention to introduce shift work. The notice will include the intended start and finish times of each shift. Less than 48 hours’ notice may be given if there are safety or emergency requirements.

18.13.2.2 The Company may vary shift rosters. Subject to providing Employees with 48 hours’ notice of its intention, the Company may transfer shift work to or from non-shift work to shift work, and from one shift cycle to another.

18.13.3 Other than for work on a public holiday, the rate of pay for shift work (afternoon or night) shall be as follows:

18.13.3.1 200% of the applicable Ordinary Rate for that Employee’s classification.”

[47] One of the two issues determined by the Commission in that case concerned whether the introduction of an afternoon shift meant that some day workers became “Day Shift” workers for the purposes of clause 18.13 of that enterprise agreement. The Deputy President found:

“[44] The proposition advanced by the AMWU is not supported by the text of clause 18.13. To begin with clause 18.13 makes no reference to one class of worker interfacing with another. Clause 18.13.1.1 defines ‘shift work’ as:

‘…any system of work in which operations are being continued by a group of Employees upon work on which another group had been engaged previously and where Employees work either a Day shift, Afternoon shift or Night shift’.

[45] That a day worker interfaces with an afternoon shift worker is beside the point and has no bearing on whether an employee is properly described as a day shift worker. To state the obvious, before there can be shift work, shift work must be required by CBI. That CBI has introduced an afternoon shift does not mean it requires a day shift instead of or in addition to day work. Secondly, though not free from doubt, it seems to me that the reference to ‘Employees’ where last appearing, is a reference to the ‘group of Employees’ first mentioned in the definition and not ‘another group’ who had been engaged previously on work. Thirdly, the reference in the definition to ‘operations are being continued’ is equally able to apply to a situation where the employer operates only an afternoon shift in conjunction with day work, as it is to a situation where three shifts, namely day, afternoon and night, are in operation.

[46] With the introduction of the afternoon shift, the group of employees who work the afternoon shift are participating in a system of work in which CBI’s operations at the construction site are being continued by that group of employees on work on which day workers have been engaged previously. That this is so does not result in the day workers either generally or those whose work might interface with an afternoon shift worker, becoming a day shift worker.”

[48] I consider that this approach is applicable to the present controversy. Of course, the full context and different terms of the enterprise agreement must be considered. However, if anything, the definition of shiftwork under the agreement being considered in AMWU v CBI, with its reference to “Day”, “Afternoon” and “Night” shift directly within the definition of shiftwork itself (which is not present in the Award), is more consistent with approach urged upon the Commission by the AWU in this matter.

[49] I accept that clause 34.2(b)(i) of the Award contemplates that the roster must provide for the rotation of shifts unless all of the employees concerned agree otherwise, is more consistent with the notion that the system of work in intended to involve defined shifts of work. However, the shiftwork provisions also expressly contemplate non-rotational shiftwork (clause 34.2(n)) and I note that the Agreement adopts the higher penalty specified by the Award (30 %) for all of its night shift work. The loss of an individual right to elect for the non-rotational shift system under the Agreement is however an issue relevant to the BOOT.

[50] I consider that it is possible for a night shift to be worked under the shiftwork provisions of the Award where the system of work involves operations that are being continued by a group of workers who may be shift or day workers.

[51] For many of the employees covered by the Agreement performing night shift where their worksites involve the continued operations of work by Retro employees at that same site, the above finding is sufficient to mean that the appropriate comparison from the Award for the night shift/work employees is the night shift provisions of the Award. However, there are some sites and projects where the night shift under the Agreement is performed without, in each case, following the work of other Retro employees at that particular work site.

[52] This leads to the second and related aspect; namely, whether the system of work contemplated by clause 34.2 of the Award must have only a site or project focus as contended by the AWU, or a broader operational “enterprise” focus as contended by Retro.

[53] The evidence reveals that at any one point in time during the working week, Retro has employees allocated to various work sites conducting the operations of traffic control. Given the involvement in many major projects, it is likely to always be the case that Retro employees are undertaking work on operations at times that follow the work of others, albeit sometimes at a different work site. Employees may also be sent from one site or project to another (with the appropriate notice or an additional penalty under the Agreement). The question is whether this can be considered to be a system of work in which the operations are being continued by a group of employees in the sense contemplated by clause 34.2(a) of the Award?

[54] Although the Award covers on-site construction work it applies to the employers and employees award in that industry and given the nature of the industry and its express coverage of traffic control operations, the very nature of those operations should be taken into account. That is, the operations of Retro are to supply services and employees across multiple worksites and projects. I consider that the Award contemplates that coverage and those circumstances, and the assessment of clause 34.2 must be made in that context.

[55] Subject to one point of clarification, it is also tolerably clear from the terms of the Agreement and the revised undertakings that there is a roster system in place for the night shift employees. This includes the requirement to roster night shift/work employees and the other roster parameters in clause 8.2 of the Agreement and in the undertakings.

[56] As a result, in the context of the particular operations of Retro, I consider that the night shift/work contemplated by the Agreement should be assessed for the purposes of the BOOT in the context of the (night) shiftwork provisions of the Award.

[57] I note that in the event that an afternoon shift was introduced by Retro under the terms of the Agreement, clause 8.1.3 of the Agreement calls up the relevant provisions of the Award. Employees in that context would be better off overall due to the other more beneficial provision of the Agreement that would continue to operate in conjunction with those shift provisions.

5. Conclusions and disposition of the matter

[58] It is common ground that all of the other requirements of the FW Act for the approval of the Agreement have been met. The remaining issue was satisfaction of the BOOT. It is also common ground that the shift notice and shift pattern objections that arise as part of the BOOT have been adequately dealt with by the revised undertakings. The shiftwork objection however remains a significant potential hurdle to the approval of the Agreement.

[59] For reasons outlined above, I consider that night shift/work contemplated by the Agreement should be assessed for the purposes of the BOOT in the context of the (night) shiftwork provisions of the Award. In that context, the indication given by Retro during the hearing of this matter - that where a day work employee was rostered to work on a night shift/work, they would be paid at overtime rates - is an important confirmation that a proper shift roster system will be in place so as to mean that the Award shift provisions remain the appropriate comparator and that the employees concerned are better off overall with the approval of the Agreement. My provisional view is that an additional undertaking confirming Retro’s intention in that regard, when considered in the context of the existing revised undertakings and the terms of the Agreement more generally, would not result in substantial changes to the Agreement and no employee would be disadvantaged or suffer financial detriment.

[60] Subject to receiving an undertaking addressing that issue, and having regard to all of the remuneration and conditions of the Agreement and the Award, I would be satisfied that all employees (including those working on night shift/work) will be better off overall with the approval of the Agreement. This includes the various features of the Agreement as identified (in summary form) in the Appeal Decision and the additional factors identified in this decision concerning the night shift/work arrangements under the Agreement, including the defined non-rotational basis for the shiftwork.

[61] It is appropriate that I provide Retro with an opportunity to provide the additional undertaking (in the required form) and to allow the AWU and the other employee bargaining representative to comment on any such undertaking. Subject to consideration of those matters, I would intend to finally determine this application as a matter of some priority.”

Altus

[15] In Altus, Deputy President Saunders, considered a similar factual scenario to that which occurred in Retro, which he summarised as follows: 2

•  Retro had some sites and projects where its employees worked a single shift (night shift) and no other Retro employees worked on that site or project at any other time of the day (ie before night shift started or after night shift concluded);

•  Retro had other sites and projects where its employees worked across 24 hours of the day, with one shift of employees immediately followed on the work of other Retro employees on the same site or project; and

•  looking across the whole of its enterprise, it was likely to always be the case that Retro employees would be undertaking work on operations at times that follow the work of others, albeit sometimes at a different work site. 

A similar factual scenario pertains to the matter at hand.

[16] Deputy President Saunders agreed with Commissioner Hampton’s decision in Retro insofar as it concerned the principles which must be applied in construing the Award, the industrial context for the Award including the nature of the industry it covers, the purpose of the shiftwork provisions of the Award, and the fact that it was possible for a night shift to be worked under the shiftwork provisions of the Award where the system of work involves operations that are being continued by a group of workers who may be a shift of day workers. The Deputy President, however, came to a different conclusion regarding the proper construction of the word “work” in the definition of shiftwork found in clause 34.2(a) of the Award. The Deputy President held (footnotes omitted):

“[25] Applying this whole of “enterprise” focus to the meaning of “work”, Commissioner Hampton concluded that Retro’s employees working on night shift were working shiftwork within the meaning of clause 34.2(a) of the BCG Award, even though they may be working on sites or projects where the activities they were undertaking at the site or project were not continued, either by them on night shift or by another group of Retro employees on day work following their night work.

[26] Part of definition of shiftwork in clause 34.2(a) of the BCG Award requires that there be a “system of work in which operations are being continued”. There is no doubt that both Retro and Altus have a system of work, which involves contracts with clients for the provision of traffic management services and the offering and acceptance of shifts by employees to work on those contracts. Further, both Retro and Altus have a “system of work in which operations are being continued”, because their operations consist of the provision of traffic management services and those operations continue, across their enterprises, throughout 24 hours of the day. However, the definition of shiftwork is not satisfied merely by having a “system of work in which operations are being continued”. The operations must be continued “by the employment of a group of employees upon work on which another group had been engaged previously” [emphasis added]. It follows that the “work” which one group of employees undertakes must be the same “work” as the other group of employees had been engaged in previously.

[27] The word “work” has a variety of ordinary meanings, including “a task or undertaking”, “productive or operative activity”, and “employment; a job, especially that by which one earns a living”. The context in which the word “work” is used in the definition of shiftwork in clause 34.2(a) of the BCG Award is, as always, significant. In particular, the reference to “a group of employees” having “been engaged” “upon work” which “another group” of employees is then engaged in order to continue the employer’s operations suggests that the “work” contemplated by the definition is “a task or undertaking”, as opposed to the general activity of performing traffic control services or the general job of a traffic controller.

[28] The point may be demonstrated by way of an example. If on any given day Altus had one group of traffic controllers working on a particular project for one of its clients in, say, Canberra on day work only and another group of traffic controllers working on a particular project for another client in, say, Byron Bay on afternoon or night shift only, then (assuming Altus did not have any other employees working different shifts on either the Canberra project or the Byron Bay project), would it be correct to say that the Altus traffic controllers working on the Byron Bay project were engaged on the same work as the Altus traffic controllers working on the Canberra project. I think not. If the work is undertaken on the same site, the same project, or possibly on different sites but for the same client under the same contract, then the definition of shiftwork may be satisfied, but work on different sites and projects, for different clients, could not, in my view, properly be regarded as the continuation of operations “by the employment of a group of employees upon work on which another group had been engaged previously.”

[29] There are two further points which tell in favour of this construction of the definition of shiftwork in clause 34.2(a) of the BCG Award. First, clause 34.2(b) of the BCG Award provides that “shifts must be worked according to a roster which will provide for rotation of shifts unless all the employees concerned agree otherwise”. The requirement for there to be a rotation of shifts, absent agreement by all employees concerned, suggests the shiftwork being contemplated by clause 34.2 of the BCG Award is shiftwork at one site, on one project, or (possibly) for one client. Further, the requirement that there be a roster which, absent agreement by all employees concerned, provides for rotation of shifts must be viewed in the context of a relatively low shift allowance of 15% for shiftworkers “whilst on afternoon or night shift other than on a Saturday, Sunday or holiday”. The purpose of a shiftwork allowance is to compensate an employee for the disutility associated with working afternoon or night shift. The level of disutility associated with shiftwork is, at least on one view, lower when the shiftworker has a right to work according to a roster which provides for rotation of shifts (absent agreement otherwise), because the shiftworker is not “stuck” on the one shift. By comparison to the 15% shift allowance for shiftworkers in the civil construction sector, the shiftwork allowance for employees covered by the BCG Award but who work in the general and building construction and metal and engineering sectors is 50% for afternoon and night shift from Monday to Friday and 25% for morning and early afternoon shifts from Monday to Friday. There is no requirement in the BCG Award for the roster applicable to shiftworkers in the general and building construction and metal and engineering sectors to provide for the rotation of shifts.

[30] Secondly, if the interpretation of the definition of shiftwork in clause 34.2(a) of the BCG Award for which Altus contends were correct, there would be odd outcomes. Such a construction would provide a major competitive advantage to large and medium sized employers in the civil construction sector over smaller operators. For example, if large and medium sized employers in the traffic control industry were able to rely on work performed across the whole of their enterprise to demonstrate the continuation of traffic control services by different groups of employees at different sites across the country for different clients, they would be able to employ traffic controllers on afternoon shift or night shift and pay them the 15% shiftwork allowance (from Monday to Friday) provided for in clause 34.2(j) of the BCG Award. In contrast, a small employer in the traffic control industry, with only one crew of employees working one shift on one project, would be required to pay those employees overtime under the BCG Award if they worked after 6pm. An award is to be interpreted in light of the commercial and legislative context in which it applies. The objects of the Act form part of the legislative context. Those objects include providing a balanced framework for cooperative and productive workplace relations that promote national economic prosperity and social inclusion for all Australians by acknowledging the special circumstances of small and medium-sized businesses.

[31] I am cognisant of the fact that the relevant “context” to be considered in interpreting an award extends to the origins of a particular clause. The Full Bench in the Retro Appeal was also interested in the origin of clause 34.2 of the BCG Award, as is apparent from the following observations:

“[39] This is a significant issue with potentially wide ramifications for the parties. Despite the additional evidence before the Commission, there is insufficient evidence to allow us to make any findings as to whether Retro conducts a roster system as would appear to be contemplated by clause 34.2 of the Award. Further, whether the definition of shiftwork in the Award requires the roster system to involve consecutive “shifts” at the same work location rather than in the employer’s enterprise more generally, particularly in the context of the modern traffic control industry, necessitates a detailed consideration of the history of the Award and its apparent objective intent beyond the scope of materials presently before us.

[40] We do note that clause 34.2 is fundamentally drawn from the former Australian Workers’ Union Construction and Maintenance Award 2002, and that the definition of shiftwork in clause 34.2(a) refers to any system of work in which the operations are being continued by a group of employees. Whether this provision requires that each of the consecutive groups be working shifts (one of the defined shifts - rather than day work), and whether the consideration of the operations must be focused on each site, requires further and more detailed consideration.”

[32] The AWU was involved in both the Retro proceedings (on appeal and on remittal) and these proceedings. Apart from confirming that clause 34.2 of the BCG Award is drawn from the Australian Workers’ Union Construction and Maintenance Award 2002, neither the AWU nor Altus was able to provide the Commission with any assistance in these proceedings in relation to the history of the provision or its apparent objective intent. My research did not advance the matter further either. It may well be the case that the definition of shiftwork in clause 34.2(a) of the BCG Award is not well suited to the civil construction sector in which, as Commissioner Hampton pointed out in Retro, there are major projects as well as smaller works which are likely to involve multiple employers of different sizes coming and going from one or more sites or projects as the various stages of work are undertaken. It is open to an interested person to make an application under s 158 of the Act to vary the BCG Award if they believe that such a variation is necessary to meet the modern awards objective.

[33] My task in determining this part of the application for approval of the Agreement involves construing the BCG Award in its current terms. While the context and purpose of an award are relevant, ultimately the task of interpretation is to give effect to the meaning of the award as expressed in its words, objectively construed. For the reasons given above, I am not satisfied that Altus conducts a roster system, as is contemplated by clause 34.2 of the BCG Award, for all the Employees. Accordingly, I invited Altus to provide an undertaking and I am satisfied that Undertaking 5 resolves my concern about some of the Employees not being better off overall, for it adopts the definition of shiftwork in clause 34.2(a) of the BCG Award.”

The Applicant’s Submission

[17] The Applicant essentially sought to provide the Commission with the assistance in relation to the history of Clause 34.2(a) of the Award, and its apparent objective intent, that was identified by Deputy President Saunders in Altus at [32]. The Applicant undertook a review of the history of the development of clause 34.2(a) of the Award. From its analysis, the Applicant submitted the following:

“(a) It is correct, as was referenced in Altus, to identify that the definition of shiftwork within the BCG Award has its most recent origins in the terms of the Australian Workers Union Construction and Maintenance Award 20027 (AWU Award 2002);

(b) The adoption of this definition from the AWU Award 2002 occurred as a result of the Part 10A Award Modernisation proceedings conducted under the Workplace Relations Act 1996 and the Award Modernisation Request issued by the Minister for Employment and Workplace Relations (Award Modernisation Request);

(c) The genesis of the term however was not born from the AWU Award 2002 but instead was as a result of a variation to the Australian Workers Union Construction and Maintenance (Consolidated) Award 1987 (AWU Award 1987). The variation does not appear to be the subject of a reported decision, however its introduction in this iteration of the Award is revealed by:

(i) Firstly, that AWU Award 1987 when made by the Australian Conciliation and Arbitration Commission on 3 August 19879, whilst containing a shiftwork clause, did not contain any term equivalent to clause 34.2(a). A copy of the AWU 1987 Award as made is provided as Annexure B to these submissions;

(ii) Secondly, that the Award which was created to replace the AWU Award 1987, the Australian Workers Union Construction and Maintenance Award 1989 (AWU Award 1989) by the Australian Industrial Relations Commission (AIRC) on 4 December 1989, did include a term equivalent to clause 34.2(a). This Award was made as part of the structural efficiency variations which occurred to the Federal Award system during this period. A copy of the AWU Award 1989 as made is provided as Annexure C to these submissions;

(iii) Thirdly, the proceedings which resulted in the making of the AWU Award 1989, indicate that the drafting of the shiftwork clause in the proposed Award was drawn directly from the existing terms of the AWU Award 1987. This is reflected in the written submissions of the AWU in that matter. A copy of those submissions is provided as Annexure D to these submissions.

(iv) Fourthly, that the version of the proposed Award which reflected the consent document negotiated by the AWU and employer parties to advance the making of the AWU Award 1989, contained a clause which was equivalent to clause 34.2(a). A copy of the negotiated proposed consent Award which was tendered as an exhibit in the proceedings to make the AWU Award 1989 is provided as Annexure E to these submissions.”

[18] The Applicant noted that it was not in a position to further advance a dissection of the history of the relevant provision from the AWU Award 1987, as the relevant file concerning the making of the AWU Award 1987 is not in the possession of the Fair Work Commission and instead is held by the National Archive of Australia (NAA). In the hearing on 4 February 2021, the Applicant informed the Commission that its further enquiries had not produced any further results. The Applicant, while conceding it had not been able to identify with absolute precision the proceedings that resulted in the introduction of the pre-cursor to clause 34.2(a), submitted that a number of matters arose from the history that had been disclosed. It submitted:

“(a) Firstly, that the assistance that DP Saunders found for his construction of clause 34.2(a) in the terms of clause 34.2(b) – that is that the requirement in clause 34.2(b) for there to be a rotation of shifts, absent agreement by all employees concerned “suggests the shiftwork being contemplated by clause 34.2 is shiftwork at one site, or one project or (possibly) for one client” is misplaced. The requirement for such an agreement predates the inclusion of the definition of shiftwork in the AWU Award 1987 and was a feature of the Award when it was made (per clause 16(c)(i) of Print G6898). The Applicant therefore submits that this requirement cannot be a textual indicator for the definition of shiftwork as suggested by the Deputy President;

(b) Secondly, that the connection between the rotation of shifts and the relative lower shift loadings which apply to civil work under the BCG Award as against those that apply in the general building and construction sectors is also misplaced. This is revealed by:

(i) The submissions of the AWU made in the Award Modernisation proceedings which indicate that the lower loadings in the civil and maintenance sector have their genesis in the fact that civil construction was performed by public sector employees;

(c) Thirdly, that any submission which seeks to connect the more restrictive definition of shiftwork as determined in Altus with the lower shift loadings that are reflected for civil construction work as compared to general construction does not align with the historical disparity between the loadings for shiftwork in the civil construction sector as against the general construction sector. This disparity in loadings (which are equivalent to the disparity that presently exists between the sectors under the BCG Award) was reflected in the relevant Federal Construction Awards prior to the introduction of the shiftwork definition in the AWU 1987 Award. A copy of the shiftwork terms of the National Building and Construction Industry (FEDFA) Award 1987, the National Building and Construction Award 1975, and the National building and Construction Industry Labourers (On Site) Award 1986 (the Historical Building and Construction Awards) is provided as Annexure F to these submissions;

(d) Fourthly, that notwithstanding the inclusion of the shiftwork definition in the AWU Award 1987, there remained a claim advance by the AWU in the context of the making of the AWU Award 1989 for an equalization of shift loadings between the AWU Award 1989 and the Historical Building and Construction Awards. This Application was ultimately joined with the application which created the AWU Award 1989, although the AWU’s equalization of shift loadings claims was not ultimately resolved and instead became a issue on which leave was reserved to make application in future for variation to those loadings. A copy of the Application to equalize the shift loadings is provided as Annexure G to these submissions The Applicant submits that this reflects that there had been not alteration or elevation of the Award safety net as a result of the inclusion of the shiftwork definition into the AWU Award 1987.

(e) Fifthly, that the “odd outcomes” and “competitive advantage to large and medium employers” that the Deputy President in Altus identified as further supporting his construction of clause 34.2(a), whilst potentially true when considered in the context of a common rule award as the BCG Award is, inappropriately and incorrectly superimposes that context to a term that was created under a different Award making structure and system, including:

(i) That the legislative context for the making of the BCG Award was the Part 10A process and the Award Modernisation Request. The Award Modernisation Request articulated as an objective of the Award Modernisation process that it would not “disadvantage employees” or “increase costs for employers”. This led the AIRC to rely on the terms of the principle Federal Award which applied in a particular industry sector as the basis for the drafting of the Modern Awards;

(ii) That the AWU Award 1987 was made under a system which was based upon named respondency to the Award and the making of an Award in resolution of an industrial dispute. Issues of competitive advantage or disadvantage created by an Award system which was a mechanism for resolving industrial disputes is in our submission an irrelevant consideration. It is noteworthy in this regard, that the objects of the Conciliation and Arbitration Act 1904 which was the legislation under which the AWU Award 1987 was created, contain no reference to types of considerations which the Deputy President in Altus referred;

(f) Sixthly, that the interpretation of the BCG Award and its terms in the context of the objects of the Fair Work Act 2009, as was undertaken by the Deputy President in Altus, led the Deputy President to error. The objects to provide “a balanced framework for cooperative and productive workplace relations that promote national economic prosperity and social inclusion for all Australians by acknowledging the special circumstances of small and medium-sized businesses” were not the relevant considerations to have been applied given the limitations and approach that was required by the Part 10A Award Modernisation proceedings that created the BCG Award and saw the inclusion of clause 34.2(a) as one of its terms.

(g) Seventhly, the observation by the Deputy President in Altus that the definition of shiftwork in clause 34.2(a) of the BCG Award, may not be “well suited to the civil construction sector” is difficult to sustain as a matter of logic given that the provision has its genesis in an Award that was solely directed towards the terms and conditions that should apply in civil construction and maintenance contexts.

(h) Eighthly, in the context of operations like that of the Applicant’s, one that is clearly contemplated in the coverage of the AWU Award 1987, the AWU Award 1989 and the AWU Award 2002 (collectively the Historical AWU Awards) the impractical consequences of the Altus interpretation are most stark than when one considers the ability for an operation like the Applicant’s to roster ordinary hours at all. Based upon the narrow construction of the definition of shiftwork, the Applicant, and any traffic control business which operates at times which are outside of the ordinary hours for day work without successive shifts at the same site or project – which it is contended is a common time of operation for this type of work, would not have available any hours which under the Award would be regarded as ordinary hours as all hours that don’t meet the narrow definition of shiftwork must be regarded as overtime hours. Given that the Historical AWU Awards operate under the presumption of weekly employment (unless specifically engaged as a casual employee), this would mean that the narrow definition of shiftwork would have required payment of both overtime penalties for the hours worked outside of day work, together with a full weeks wages at ordinary time (even though those hours were not worked and indeed might be incapable of being worked). Such a reality tells strongly against the interpretation adopted in Altus, and it is not an answer to that reality to contend that the definition may be “ill-suited” to that sector when its genesis is purely for the regulation of that sector of work.

18. Having regard to these matters, the Applicant respectfully submits that virtually all of the contextual matters which the Deputy President in Altus relied upon are misplaced or incorrect. It is important also to note however, that none of the historical lineage that has been identified above appears to have been put before the Deputy President in Altus (or indeed to the Full Bench or Commissioner Hampton in Retro).

19. The Applicant further submits that the above contextual considerations better support a reading of clause 34.2(a) that is consistent with that determined by Commissioner Hampton in Retro.”

[19] The Applicant further submitted that the conclusions arrived at in Retro as to the nature of the civil construction industry were also supportive of the broader interpretation of the shiftwork definition as found in that matter. The Applicant accordingly submitted that the Commission should find that the correct interpretation of clause 34.2(a) is as determined in Retro and permits consideration of the totality of the employers operations in identifying whether they meet the definition of shiftwork, as opposed to a narrow consideration of the particular site or project where the employees may be performing work.

The AWU Submission

[20] The AWU submitted that the fact the definition of “shiftwork” contained in clause 34.2(a) post-dates the rule in clause 34.2(b) that there be a rotation of shifts does not mean that the two provisions should not be read harmoniously and consistently. The AWU pointed to the conclusion of Deputy President Saunders at [29] of Altus, which was:

There are two further points which tell in favour of this construction of the definition of shiftwork in clause 34.2(a) of the BCG Award. First, clause 34.2(b) of the BCG Award provides that “shifts must be worked according to a roster which will provide for rotation of shifts unless all the employees concerned agree otherwise”. The requirement for there to be a rotation of shifts, absent agreement by all employees concerned, suggests the shiftwork being contemplated by clause 34.2 of the BCG Award is shiftwork at one site, on one project, or (possibly) for one client.

[21] The AWU submitted that the opposite inference should in fact be drawn, and the express insertion of the shiftwork definition now found in cl 34.2(a) plainly modified the operation of the pre-existing shiftwork provisions of the 1987 AWU Award. The only sensible inference to be drawn is that it was intended to restrict utilisation of the shiftwork provision by employers outside of a “system of work” as defined.

[22] The AWU noted that fact that civil construction was previously performed by public sector employees is not a reason to suggest that the inclusion of the specific “shiftwork” definition in clause 34.2 and predecessor provisions was not a protective term for the benefit of employees.

[23] As to the historical disparity between the pre-modern building and general construction awards and those in the civil construction award, the AWU submitted it was unclear how that disparity lends support to the view that the Altus interpretation is incorrect. The AWU and the Commission, including Deputy President Saunders, were well aware of the historical disparity in those rates. That disparity did not tell in favour of the Retro construction over the Altus construction.

[24] Regarding the AWU’s historical attempts to ‘equalise’ shift loadings across the broader construction industry, the AWU submitted that the fact that a party makes a claim for a benefit in arbitration proceedings, which is rejected by the Commission in favour of an alternative amendment to the provisions in question, should not be seen as evidence that the alternative amendment was intended not to alter or elevate the safety net. The AWU submitted that in the absence of evidence the opposite inference should be drawn.

[25] The AWU submitted that the submission regarding the prior AWU Awards being respondency awards was misguided. There were a significant number of such respondents, and there was no evidence to suggest that the employer respondents did not include small, medium and large enterprises.

[26] The AWU submitted there was no error in relying on the objects of the Act in interpreting the provisions of the General On-site Award. Such reliance was merely a passing reference in Deputy President Saunders’ reasoning (at [30] of Altus), and the Deputy President was clearly aware of the need to consider the original context of an award provision, as he went on to say so in the very next paragraph ([31]). There is nothing in the further historical materials relied upon by the Applicant which casts doubt upon those conclusions.

[27] Regarding the Applicant’s argument that Deputy President Saunders’ observation that the current civil construction shiftwork provisions may not be “well suited to the civil construction sector” is “difficult to sustain,” the AWU submitted that argument would only have force if it were assumed that the civil construction had undergone no significant industrial changes between 1989, 2002 and 2020, and if it were thought that provisions which were “well suited” to an industry in 1989 necessarily remained so in 2020. It submitted that is not the case.

[28] Finally, regarding Applicant’s observation that the historical context suggests that an operation such as the applicant’s was “clearly contemplated in the coverage of the AWU Award 1987, the AWU Award 1989 and the AWU Award 2002,” the AWU submitted there is no evidence for that claim and it is far more likely that an operation such as the applicant’s was not at all within the contemplation of the drafters of those pre-modern awards. It is not clear that any of the employer respondents to the 2002 AWU Award were wholly or predominantly traffic control companies, as opposed to broader civil contracting enterprises.

Consideration Regarding Shiftwork

[29] In Metal Trades (Engineering) Board of Reference Appeal, 3Dethridge CJ considered a ruling that work commencing at 9.30am and finishing at 6.15pm was shift work and should be paid for at the appropriate shift work rate. In upholding the Appeal, Dethridge CJ observed:

“Ordinarily the idea of shift work connotes men working in relays; that is to say one man or relay or squad of men does a spell of work upon a process and upon that same process is immediately followed by another man or relay or squad of men doing a spell of work for something like a similar number of hours, but not necessarily for the same number. Nothing like that existed here. There was no shift of work from one man or squad to another successive man or squad.”

[30] The above observation is entirely consistent with the definition of shiftwork in Clause 34(2)(a) of the Award. As Deputy President Saunders found, 4 the “operations” must be continued “by the employment of a group of employees upon work on which another group had been engaged previously” [emphasis added].

[31] I agree with, and adopt as correct for the disposition of the Application, the conclusions of Deputy President Saunders at paragraphs [26], [27], [28], [29] and [30] in Altus. I particularly note the example highlighted by Deputy President Saunders at paragraphs [28]. But for the localities mentioned, that is exactly the scenario that the Applicant presses should be allowed to apply in the matter at hand. That course of conduct, based on my conclusion as to the definition of shiftwork in the Award, would result in employees being not better off overall pursuant to the terms of the Agreement.

[32] Ultimately, the question before the Commission now is a narrow one. Does the meaning of “work” in the clause 34.2(a) definition include any work within an enterprise, regardless of how remote, or whether it is required to be work within the same jobsite or project.

[33] I do not consider that any of the submissions of the Applicant can support a different interpretation of the definition in Clause 34.2(a). The definition of shiftwork is clear and unambiguous. The text of clause 34.2 operates on an assumption that there will be a rotation of shifts unless agreed otherwise by employees. There cannot be a rotation of shifts across an entire enterprise that engages workers at various different worksites in different cities and regions.

[34] For the reasons given above, I am not satisfied that the Agreement, as amended by the existing undertakings referred to above, would result in the employees being better off overall due to the interpretation of Clause 34(2)(a) of the Award relied upon by the Applicant. Accordingly, I invite the Applicant to provide an undertaking, in the form of Undertaking 5 identified in Altus, to resolve my concern about employees not being better off overall.

(b) Meal Allowance

[35] The Applicant has advanced an undertaking which addresses the concern identified by the Commission and the AWU concerning the requirement to work a continuous eight ordinary hour shift prior to being eligible to access the overtime meal allowance contained in clause 12(b) of the Agreement and Appendix A. The Applicant contends that this undertaking brings the Agreement on this matter in line with the terms of the Award.

[36] A further issue was identified by the AWU, being whether the language reflected in the Agreement that requires an employee to continue for “more than 1.5 hours” as compared to the Award entitlement which crystalizes where “an employee (is) required to work for at least one and a half hours,” results in the Agreement failing the BOOT test..

[37] I note the Applicant has, by the undertakings provided, resolved many BOOT issues. Those resolved issues include the D&D Special Allowance, a higher rate for the Trainee Traffic Controller classification, payment of training course costs for casual employees, accident pay, overtime meal allowance, Team Leaders allowance and minimum engagement periods.

[38] I agree with the Applicant’s submission that the reduction provided by the different wording is “miniscule”, and in the overall balance I do not see that such miniscule effect would result in the Agreement otherwise failing the BOOT test.

Conclusion

[39] Subject to the provision of the Undertaking referred at paragraph [34] above, and the undertakings already provided, I would be satisfied that the relevant requirements of ss 186, 187, 188 and 190 of the Act concerning the application for approval have been met.

[40] It is appropriate that I provide the Applicant with an opportunity to provide the additional undertaking, and to allow the AWU to respond to such undertaking. Subject to consideration of those matters, I would intend to finally determine this application as a matter of urgency.

[41] The Applicant is directed to file, should it wish to do so, the identified additional undertaking by 4.00pm on 26 February 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR727269>

 1   [2019] FWCFB 1068.

 2   Altus at [24].

 3 (1936) 36 CAR 534, at P. 535.

 4   Altus at [26].