Liquor, Hospitality and Miscellaneous Union v MSS Security Pty Ltd

[2011] FWA 1692

[2011] FWA 1692

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Liquor, Hospitality and Miscellaneous Union
v
MSS Security Pty Ltd
(C2010/4935)

COMMISSIONER BISSETT MELBOURNE, 29 MARCH 2011

Alleged dispute about matters arising under the enterprise agreement.

[1] The Liquor, Hospitality and Miscellaneous Union (LHMU) notified Fair Work Australia of a dispute in accordance with the dispute settling procedures of the MSS Security - LHMU Victorian Aviation Security Employees Enterprise Agreement 2009 (the Agreement).

[2] The subject of the dispute is the application of clause 17.4 of the Agreement. It is appropriate to set out clause 17 of the Agreement in full:

17. VOLUNTARY ADDITIONAL HOURS

17.1 The parties recognise that employees covered by this Agreement (excepting for casual employees) working additional hours beyond those provided for on their rosters (“Voluntary Additional Hours”) is an integral requirement to the achievement of flexible and efficient work practices at the site.

17.2 Employees may therefore request to work Voluntary Additional Hours. For example, where an employee’s rostered hours of work for a day/shift was nine (9) hours, and that employee has volunteered to and does remain at work for an hour in excess of the nine (9) hours shown on the roster, the additional time worked by the employee will be paid as Voluntary Additional Hours.

17.3 Subject to sub-clause 17.6 below, the Company will develop and implement a system of rotation to ensure that as far as is practicably possible to do so, an even distribution of additional hours is achieved amongst those employees who nominate to participate in the scheme.

17.4 The Company will generally determine the allocation of such additional hours having regard to availability of employees and the system of rotation in place. If any additional hours become available in a particular work area, the Company will give preference to permanent employees who have requested to work Voluntary Additional Hours and who perform their ordinary shifts in that work area.

17.5 In the case of extended shifts, selection will be made from volunteers already on duty. Where agreement cannot be reached as to who will perform the additional hours, the Company will select the employee(s) concerned having regard to the system of rotation and other normal selection processes, and in accordance with sub-clause 17.3.

17.6 Where there are no or insufficient employee participants in the voluntary scheme on duty, the Company may utilise the services of a casual employee, or alternatively allocate the additional hours as involuntary overtime in accordance with the provisions of this Agreement.

17.7 An Employee may request to work Voluntary Additional Hours and the Company may agree to such a request, provided that:

17.7.1 such hours are available;

17.7.2 the Voluntary Additional Hours worked by an Employee will be paid at the rates specified in Part B of this Agreement.

17.7.3 all other overtime which is not voluntary is involuntary overtime and will be paid in accordance with clause 16 of this Agreement.

17.8 Any Voluntary Additional Hours performed by an employee in accordance with this clause will not result in the accrual of leave of any kind.

17.9 Work Limits

17.9.1 An employee must not work:

(a) more than seven (7) consecutive rostered shifts and Voluntary Additional Hours shifts in anyone fortnight (being a pay fortnight);

(b) the maximum number of Voluntary Additional Hours that may be worked in accordance with the Agreement shall not exceed an average of sixteen (16) hours per week over the relevant roster cycle.

17.9.2 The provisions of sub-clause 17.9.1(a) do not apply to Voluntary Additional Hours worked either immediately before or immediately after a rostered shift or a Voluntary Additional Hours shift.

[3] This clause, in essentially the same form, has been in agreements covering this security work from 2002 (the first agreement operated from 2002 but was certified in 2003).

Hours of Work, Rosters and Staffing

[4] MSS employees covered by the Agreement at Melbourne Airport work in a number of defined, and relatively discrete, areas. These are:

(i) Qantas Control Room and Maintenance Base (‘Control Room’);

(ii) Qantas Freight;

(iii) Qantas Catering

(iv) Qantas Domestic Screening Point;

(v) Qantas Loading Dock;

(vi) Aircraft Ground Support Equipment (‘AGSE’); and

(vii) Zulu Exit Points.

[5] MSS has approximately 120 permanent employees and about 120 casual employees working at the Airport. Of the 120 permanent employees there are, at the time of decision, seven relieving guards (‘Relievers’). The total number of relievers varies from time to time.

[6] Skill requirements vary for different areas of the airport. Employees are rostered to work in a specific area and not across the airport as a whole although the Relievers may work across different areas.

[7] Employees (at least in the Control Room) work 12 hour shifts.

[8] The Control Room has 14 employees working a 12 hour shift roster over a 12 week period. The pattern of the roster does not change. Two of these guards are rostered to the maintenance base only. The other 12 employees are rostered to the control room and maintenance base (‘permanent Control Room guards’).

[9] The Control Room, across the 12 week roster, has an addition roster line of 288 hours (the ‘spare line’) necessary to meet the service standards of the client. This 288 hours is less than a full time position (averaged at 38 hours per week).

[10] Permanent guards in the Control Room indicate by way of an overtime availability roster their availability to work voluntary additional hours on those days they are not rostered to work. (A guard working 12 hour shifts cannot volunteer to work an additional shift on a day they are already rostered to work.)

[11] In addition to the hours covered by the 12 permanent Control Room guards, there are additional hours that also need to be covered in the Control Room:

1. 288 hours (the ‘spare line’); and

2. Annual leave or other projected leave taken by one of the permanent Control Room guards (‘projected leave’ shifts); and

3. Personal or other unplanned leave taken at short notice (‘dropped shifts’).

[12] The total hours required to be worked at the airport are covered by permanent employees, including Relievers, and casual employees.

[13] Relievers are full time permanent employees of MSS covered by the Agreement. They are entitled to an allowance of $30.09 per week in year 1 of the Agreement increasing to $32.85 per week in year 3. The purpose of the allowance is set out in the Agreement:

20.9 Relieving Officer Allowance

20.9.1 Where the Company and an employee are in agreement, a weekly employee may be appointed as a Relieving officer. A Relieving officer will be paid an additional weekly allowance as contained in Part B of this Agreement for all purposes of this Agreement.

20.9.2 This allowance is not in substitution for any shift or weekend penalties earned for working ordinary hours, nor is it in substitution for any overtime payments.

20.9.3 Relieving officer is engaged for the purpose of relieving at short notice any other Security Officer and for whom a display of roster is not required; where possible, twenty four (24) hours notice of shift will be given.

[14] Permanent Control Room guards cannot cover all of the shifts that need to be covered in the Control Room.

[15] Employees working voluntary additional hours are not paid in accordance with the Agreement’s overtime rates of pay but rather are paid rates similar to the casual rate of pay in the Agreement.

[16] The Agreement provides for two categories of employees - permanent and casual.

The scope of the dispute

[17] The Agreement in this instance applies to MSS and employees of MSS engaged in the provision of security services in the aviation industry at the Tullamarine precinct, the Qantas Flight Training Centre and the Qantas Avalon Airbase. 1

[18] The application for Fair Work Australia to deal with the dispute identifies the dispute as relating ‘to MSS employees who work at the Melbourne Airport. In particular it relates to our members who work in the Melbourne Airport Control Room.’ 2 The application then identifies two breaches of clause 17 of the Agreement ‘in the Melbourne Airport Control Room.’3

[19] During the hearing, extensive evidence was given with respect to operations in the Control Room. Whilst limited evidence and statements were made about the arrangements in other parts of the Airport there was no such evidence of any probative value.

[20] The LHMU sought to limit the matter for consideration to the operation of sub-clause 17.4 of the Agreement. For reasons given below I consider such an approach too narrow.

[21] The scope of the dispute subject to this decision is therefore the operation of clause 17 of the Agreement in the Control Room at Melbourne Airport.

[22] In particular the dispute relates to how shifts on the spare line, dropped shifts and projected leave shifts in the Control Room are filled. In essence the LHMU claims that all of these vacant shifts should be offered first to permanent Control Room guards who have indicated availability to work voluntary additional hours and only after those guards have not taken a shift should it be offered to a Reliever or casual employee.

[23] The matter in dispute is a matter arising under the Agreement in accordance with the dispute settling procedure of the Agreement. The dispute settling procedure allows for the matter to be arbitrated if it is not resolved in conciliation. 4

[24] The dispute has been subject to the dispute settling procedure in the Agreement but has failed to settle.

Principles relevant to interpreting the Agreement

[25] The principles governing interpretation of an agreement are well established.

[26] Madgwick J in Kuck’s Case stated that:

It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.

But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning. 5

[27] In considering how a redundancy provision of an agreement should operate Kirby J found in Amcor that:

The nature of the document, the manner of its expression, the context in which it operated and the industrial purpose it served combine to suggest that the construction to be given to cl 55.1.1 should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement.⁶

[28] In Re City of Wanneroo French J considered the principles for ascertaining the correct meaning of an award:

The interpretation of an award begins with a consideration of the natural and ordinary meaning of its words: Re Clothing Trades Award (1950) 68 CAR 597 (Aust Indus Ct, Full Ct). The words are to be read as a whole and in context: Australian Timber Workers Union v W Angliss & Co. Pty Ltd (1924) 19 CAR 172. Ambiguity if any, may be resolved by a consideration, inter alia, of the history and subject matter of the award: Picard v John Heine & Son Ltd (1924) 35 CLR 1. Resort to such matters as prefatory statements and negotiations is of dubious assistance if admissible at all: Seymour v Stawell Timber Industries Pty Ltd(1985) 13 IR 289 at 290; 9 FCR 241 at 244 (Northrop J) (13 IR at 299; 9 FCR at 254) (Keely J) cf 13 IR at 309; 9 FCR at 265 (Gray J). The logs of claim and arbitrator’s reasons for decision may be referred to to determine the ambit of the dispute which led to the making of the award so that where there are two possible interpretations, one within the ambit and one without, the former may be preferred. Evidence of the conduct of the parties subsequent to the making of the award however, cannot be relied upon to construe it: Seamen’s Union of Australia v Adelaide Steamship Co Limited (1976) 46 FLR 444, 446, disapproving Merchant Seamen’s Guild of Australia v Sydney Steam Collier Owners and Coal Stevedores Association (1958) 1 FLR 248. That is not to say the words must be interpreted in a vacuum divorced from industry realities. As Street J said in Geo A Bond & Co. Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503:

“...it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result...from an agreement between the parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award.” – See also Re Crown Employees (Overtime) Award [1969] AR(NSW) 60 at 63; Re Hospital Employees Administrative and Clerical (State) Award (1982) 2 IR 123.

It is of course no part of the court’s task to assign a meaning in order that the award may provide what the Court thinks is appropriate – Australian Workers Union v Graziers Association (NSW) (1939) 40 CAR 494. Indeed it has been said that a tribunal interpreting an award must attribute to the words used their true meaning even if satisfied that so construed they would not carry out the intention of the award making authority – Re Health Administration Corporation; Re Public Hospital Nurses (State) Award (1985) 12 IR 122; Rogers Meat Co Pty Ltd v Howarth [1960] AR(NSW) 291; Re Government Railways and Tramways (Engineers etc) Award [1928] AR 53 at 58 (Cantor J). 7

[29] Whilst the decision in Re City of Wanneroo dealt with award interpretation, the principles remain relevant to considering an agreement.

Approach to the matter in dispute

[30] Whilst the LHMU application seeks resolution of the operation of sub-clause 17.4 it would be wrong, and certainly not in accordance with established principles, to consider that sub-clause in isolation to the rest of the clause and, indeed, the Agreement as a whole. The determination of the application of sub-clause 17.4 requires that regard be had in particular to sub-clause 17.3, 17.6 and 17.7.

[31] Sub-clause 17.3 enables MSS to develop and implement a system that ensures to the extent possible an even distribution of voluntary additional hours amongst those employees who volunteer.

[32] Sub-clause 17.4 allows MSS to determine the allocation of voluntary additional hours, with preference in the allocation of such hours in a particular area given to employees who normally work in that area.

[33] Sub-clause 17.6 allows MSS to utilise casuals or involuntary overtime if there are not enough volunteers to work voluntary additional hours. Sub-clause 17.7 allows (but does not require) MSS to agree to a request to work voluntary additional hours provided the hours are available and the employee is paid in accordance with the Agreement.

[34] It is relevant to note that, apart from sub-clause 20.9 which provides for the Relieving Officer Allowance, Relieving Officers are not specifically mentioned elsewhere in the Agreement.

LHMU Evidence

[35] Mr Greenaway and Mr Casey were called by the LHMU to give evidence. Both work in the Control Room and are LHMU workplace delegates.

[36] Mr Greenaway has worked in the Control Room since 1997. He is a shift supervisor. He gave evidence that from at least 1997 until 2009 it was common practice to offer projected leave shifts arising in the Control Room to permanent Control Room guards as voluntary additional hours. Shifts that could not be filled this way were then filled with Relievers and casual employees.  8

[37] Mr Greenaway gave evidence of a letter he received from Mr Richardson (in about February 2008) in response to a complaint he raised (although this piece of correspondence was not in evidence) with respect to the uneven allocation of four overtime shifts in the Control Room. 9 In this instance it appears the complaint was that one permanent Control Room guard had received all of the overtime shifts and they had not been offered to other permanent Control Room guards.10

[38] Mr Greenaway also stated that until 2009 it was common practice to offer the additional 288 hours to permanent Control Room guards as voluntary additional hours. Any shifts that could not be filled this way were offered to Relievers and then casual employees. 11 Since 2009 Relievers have been rostered to these hours without the shifts being offered in the first instance to permanent Control Room guards. Mr Greenaway’s evidence is that in 2009 members started to complain to him that they were no longer receiving such shifts.12 Mr Greenaway, in his written evidence, said he met with Mr Richardson from MSS on or around 14 August 201013 (although under cross examination he said the year was 200914) where the issue was not resolved. The matter was then escalated through the disputes resolution process of the Agreement.

[39] Mr Greenaway gave evidence of two annual leave shifts not being offered to permanent Control Room guards and two additional shifts in the Control Room not being offered in the first instance to permanent guards. 15 Apart from these four instances there is no evidence of any shifts not offered in the way the LHMU contends they should be. There is also no evidence of how many shifts generally are required to be filled because of the 288 hours, projected leave or dropped shifts and the ratio of these to the number of shifts permanent Control Room guards indicated they were available for through the availability sheets.

[40] Mr Casey’s evidence is that an initial agreement was reached on voluntary additional hours in 1998 or 1999 16 and that the arrangements negotiated for the Control Room were reflected in the Chubb Protective Services (Melbourne Airport - Checked Baggage and Baggage Screening) Enterprise Agreement 200017although later in his evidence he suggested that there was no agreement on voluntary additional hours until 2003.18

[41] Mr Casey gave evidence of a meeting between the LHMU and management in 2004. The meeting was held at the request of the LHMU in response to concerns raised by members that voluntary additional hours were being offered to casual employees and Relievers ahead of permanent Control Room guards. 19 Mr Casey’s evidence is that the outcome of that meeting was:

(a) The 288 hours would be first offered to a permanent reliever.

(b) Any other hours that became available for any reason were then offered first to permanent staff in the Control Room and Maintenance Base.

(c) Any hours left over after step (b) were then assigned to the Permanent Reliever or a casual as the company saw fit.

(d) Only one permanent reliever at a time would be used on the Control Room and Maintenance Base Roster. 20

[42] Mr Casey claims that this process continued until a new Operations Coordinator (Mr Singh) took over. Mr Singh used a voluntary overtime sheet where people indicated their availability but changed this to an individual sheet submitted to him when the general sheet was tampered with. 21

[43] Mr Casey gave evidence that the arrangement arising from the 2004 discussions operated for a couple of years before it started to waver. 22

[44] There is no suggestion that MSS or LHMU implemented a voluntary additional hours scheme other than in accordance with the relevant award or agreement that applied at the time.

MSS Evidence

[45] Mr Trevor Richardson is the Aviation Services Manager for MSS and gave evidence for the company.

[46] Mr Richardson’s evidence is that the Control Room has 12 permanent guards on a 12 week rotating roster. However, the service requirements of the client require an additional 288 hours each 12 weeks. Mr Richardson’s evidence is that:

• The 288 hours on the roster is generally rostered to Relievers and it is only when Relievers are not available that the time is offered as voluntary additional hours to permanent guards in the Control Room; 23



• Dropped shifts are made available as voluntary additional hours; 24



• Projected leave is first rostered to Relievers and, depending on the work area, casuals. These shifts are generally not available for voluntary additional hours although if there are shifts remaining after the Relievers have been rostered these will be made available as voluntary additional hours. 25

[47] Mr Richardson says that this is how the voluntary additional hours scheme has operated since the approval of the 2002 Agreement by the AIRC. 26

[48] In 2008 Mr Singh took over as the Operations Coordinator and started to agree to oral requests by Control Room guards to work projected leave shifts as voluntary additional hours. Mr Singh apparently agreed to these requests when there were more shifts available to be filled than the Relievers could cover. This process, on Mr Richardson’s evidence, gave rise to problems and in July 2010 Mr Singh returned to the previous system (of a written availability roster). 27

[49] Mr Richardson provided evidence of the availability of Control Room guards to work voluntary additional hours for the period 13 September 2010 to 2 January 2011. 28 He suggested that, if Control Room guards were to be given first pick of the projected leave shifts as voluntary additional hours, the evidence suggests they may only take the ‘prime’ weekend shifts that attract additional penalties. Relievers would only then get residual hours.29 He also gave evidence that Control Room guards have been offered voluntary additional hours in other parts of the airport but have refused these.

[50] According to Mr Richardson it is essential that Relievers and casual employees maintain their skill levels in the Control Room and that only having guaranteed access to the 288 hours spare line is not enough hours for Relievers to do so. 30 Further he stated that if Relievers only had access to the residual shifts it may be difficult for MSS to meet other conditions - such as the number and pattern of rostered days off.

[51] Mr MacLeod was the Operations Coordinator responsible for rostering employees at Melbourne Airport until September 2008. His evidence is that:

From when the agreement came in, from about 2003 I think it was, that the vacancies that were created by annual leave and so on, I use the full-time officers on voluntary overtime and the relieving officers to cover those vacancies. What I’d do was I’d roster the relieving officers up to their maximum hours for the fortnight, I’d use an availability sheet that was prepared by the control room staff who made themselves available for voluntary overtime, I’d use that list in conjunction with the relievers and I’d fill the vacant shifts as required, making sure that the relievers got their hours and that the - anything that was left over then went to the people that were available on the specific days that were left according to the voluntary overtime sheet. 31

(underlining added)

[52] Mr MacLeod’s evidence is that he was consistent in how he filled the roster until he left the position in 2008. 32

[53] Mr MacLeod was present at the meeting with the LHMU in 2004. His evidence is that following that meeting one Reliever was removed from the Control Room, although increased demands of the client in later years made this unworkable. As a result a second Reliever was allocated to the Control Room. He also says that shifts vacated as a result of projected leave and the 288 hours spare line on the roster were first allocated to Relievers to get them up to 76 hours per fortnight. Any remaining shifts following this would be allocated to Control Room guards who had indicated availability to work voluntary additional hours. If this process did not result in enough hours for the Relievers they would be allocated duties elsewhere in the airport. 33

[54] Mr MacLeod agreed that voluntary additional hours are paid at a higher rate than a Reliever would receive although disagreed that his decisions on rostering were driven by budgetary considerations. 34

[55] Mr Carey for MSS gave evidence that the ‘cost’ of a Reliever working their ordinary hours and the cost of a permanent guard working voluntary additional hours are not markedly different when you consider the costs of annual leave, superannuation etc for the Reliever that do not accrue on voluntary additional hours. 35

[56] Mr Carey also gave evidence that he was not aware of any practice at the airport where permanent guards were given access to voluntary additional hours prior to Relievers being given their hours. 36

[57] Mr Carey also gave evidence that the Voluntary Additional Hours clause subject to these proceedings is in identical terms in a number of other MSS (previously Chubb) Agreements. His evidence is that there would be similar logistical issues at sites covered by those Agreements should the LHMU interpretation of this Agreement succeed. 37

Submissions - LHMU

[58] The LHMU in its submissions took me to sub-clause 17.4 of the Agreement in some detail and sought that I should give particular attention to five key phrases it submits are in sub-clause 17.4. Those phrases are:

• ‘additional hours’



• ‘become available’



• ‘particular work area’



• ‘permanent employees who have requested to work Voluntary Additional Hours’



• ‘permanent employees who perform their ordinary shifts in that work area’

[59] The LHMU says ‘particular work area’ refers to the distinct work groups identified in [4] above. 38

[60] The LHMU submits that ‘permanent employees who perform their ordinary shifts in that work area’ means those employees who do their ordinary shifts in the ‘particular work area’ as defined. 39 In the LHMU’s submission Relievers do not work in a particular work area but rather across the airport and hence are not employees who perform their ordinary shifts in a particular work area.40 In that respect they can be distinguished from permanent employees in, for example, the Control Room who do not work in other areas of the airport. The LHMU submits that the phrase should be read as ‘permanent employees who perform all their ordinary shifts in that work area.’41

[61] The LHMU submits that sub-clause 17.4 allows a permanent employee who works all of their ordinary hours in a particular area to be given preference in accessing any additional hours and that it prevents an employee from receiving preference for additional hours if they don’t work all their ordinary hours in the area in which the additional hours become available. 42

[62] The LHMU submits that the ‘additional hours’ referred to is any hours that are available in the Control Room that are not the rostered hours of the permanent Control Room guards and includes hours arising from a permanent Control Room guard accessing any type of leave. It submits that the clause requires that the permanent Control Room guards should have access to projected leave shifts, dropped shifts and the 288 hours before they are otherwise allocated and that they are not is evidence that the employer has not been applying the Agreement correctly. 43

[63] The union contends that additional hours have ‘become available’ if they are hours that are required to be worked in a particular area (eg the Control Room) that have not been rostered to a permanent guard who works all his or her ordinary hours in that area. It argues that this phrase should not be read down to limit it to circumstances where MSS makes the hours available. 44

[64] The LHMU also sought that I distinguish between permanent Control Room guards and permanent employees who are Relievers. It was submitted that I should consider permanent relievers as ‘essentially similar to casuals.’ 45

[65] The LHMU submitted that there are ample additional hours for Relievers at the airport because of the number of staff and amount of leave that needs to be covered.

[66] The LHMU portrays the dispute as one about equitable access to all voluntary additional hours in the Control Room. When questioned with respect to who the Control Room employees wanted to be equal to, the LHMU said it was about ‘equitable access amongst themselves.’ 46 It was also put by the LHMU that this dispute was not just about the Control Room but that the evidence indicated there were issues about the allocation of voluntary additional hours provisions in Catering and AGSE.47

[67] Further, it was submitted that this matter is about the tension between paying Relievers at ordinary rates and having to pay a loading to permanent guards. 48

[68] The LHMU says that there is no evidence to support an argument that the provision has been uniformly applied since 2002 when the first collective agreement for the area was approved. It says this contention is supported by the meeting in 2004 (on which there is no agreement on outcomes) and the letter to Mr Greenaway in 2008 and this hearing, all of which evidence dispute and inconsistency in application of the clause. 49 On this basis it submits that there is no ‘mutual intention’ of the parties that can assist the Tribunal in resolving how the clause should be applied.50

[69] The LHMU considers that this matter should be determined without reference to what may or may not occur in the future at other workplaces with respect to agreements that have the same provision.

Submissions - MSS

[70] MSS concedes that the clause is not clear. 51

[71] MSS submits that this dispute is not about the general application of clause 17 of the Agreement but is rather a dispute generated by ‘a few disaffected employees trying to hijack the whole process’ of allocation of shifts. 52 In particular MSS submits that the dispute is about access to the ‘golden’ or weekend shifts when additional penalties are payable. There is no evidence, in its submission, of a broader issue at the airport about the operation of the clause.53

[72] MSS submits that I should accept the evidence of Mr MacLeod and Mr Richardson on how rostering occurred for the Control Room as they were responsible for it. Further it submits, the evidence of Mr Greenaway and Mr Casey for the LHMU is contradictory and Mr Casey admits to having no concern on what occurs outside the Control Room and Mr Greenaway gives no evidence of knowing the rostering practices outside the Control Room. 54

[73] Custom and practice has been that projected leave and the 288 hours have always been allocated to Relievers in the first instance with left over shifts being made available for voluntary additional hours. This was the situation until challenged in August 2010, and is indicative of the intent of the parties. 55

[74] MSS argues that, while this dispute is about this Agreement, collective agreements containing the same clause at other workplaces are relevant because there is no evidence of this being an issue elsewhere. If the company was applying the clause incorrectly the expectation is that it would have been raised by the union at other MSS workplaces. From this it should be taken that this is a very limited issue.

[75] MSS submits that the ‘additional hours’ referred to in sub-clause 17.4 is hours that it makes available after the rosters are completed. It submits that there is discretion available to MSS in sub-clause 17.7 to agree to a request to work voluntary additional hours. 56 If sub-clause 17.4 conferred a right on employees to work voluntary additional hours whenever they put their name on the availability roster, the discretion conferred on MSS by sub-clause 17.7 would have no work to do. If permanent guards could pick the shifts that became available through projected leave, MSS argues that it would not have the flexibility that is envisaged by clause 17.

Consideration

[76] There is little agreement between the parties on how the voluntary additional hours provisions of the Agreement (and its predecessors) has or should operate. The evidence of the LHMU is that since voluntary additional hours was introduced in 2002 there have been at least three instances (including this matter) of disagreement over their operation. It relies on the evidence of Mr Greenaway and Mr Casey for this. MSS says that the evidence of Mr Macleod and Mr Richardson as to how the voluntary additional hours provisions have been applied should be preferred.

[77] The very fact that these proceedings are taking place indicates disagreement on how the provisions should be applied. The meeting of 2004 demonstrates at least a dispute over access to additional hours. The removal of a Reliever freed up some additional hours that permanent Control Room guards might then have been able to access via the availability roster and voluntary additional hours. The second incident evidenced by the LHMU is the letter to Mr Greenaway from Mr Richardson. I understand that matter to have related to a request to work voluntary additional hours (assuming no-one had indicated availability on the availability sheets) being made of only one particular Control Room guard. It appears that this relates to how some shifts are allocated if no-one has indicated availability on the availability sheets provided. It is not clear if this letter was written in the context of some changes Mr Singh made in offering the voluntary additional hours which, on the evidence, are not in place anymore.

[78] On considering the evidence of the witnesses I find the evidence of Mr MacLeod and Mr Richardson on the approach to rostering more credible than that of Mr Greenaway and Mr Casey. Mr Greenaway and Mr Casey gave contradictory evidence on the issue including when it first arose, how rostering is conducted, in particular for dropped shifts, and the extent of disputation over the matter. During his evidence Mr Greenaway made an assertion that employees had withdrawn support for the union application in this matter after being threatened via email with roster changes. Despite the seriousness of this claim no further evidence was adduced on it. There is nothing before me to suggest that employees were threatened or coerced with respect to this matter. Should that occur it would be viewed seriously and, of course, if proven, would make MSS liable to civil penalties. There is no basis to give any credence to the claims of the witness on this matter. MSS further provided an assurance during submissions that no such action had taken place.

[79] The principles relating to the interpretation of an agreement make it clear that the conduct of the LHMU and MSS subsequent to the making of the Agreement cannot be used to construe the Agreement.

[80] No evidence was given as to what the intention of the parties was in inserting the clause in the Agreement, beyond a need to balance work being given to casual employees against the desire of permanent employees to access overtime and the cost of ‘traditional’ overtime arrangements and payments.

[81] This matter has been brought as a dispute over the application of the Agreement. It is appropriate that the matter in dispute is resolved. Sub-clause 17.4 is the cause of the dispute and, on its face, is open to claims of uncertainty.

[82] In determining the application of sub-clause 17.4 however, it is necessary that it be considered in the context of the entire clause. The LHMU would have me consider sub-clause 17.4 in isolation but this would be a wrong approach to determining the intention of the clause.

[83] Whilst the LHMU has argued why the clause means as it contends, it achieves this by taking a narrow and pedantic approach to the sub-clause and by ignoring the context within which the sub-clause sits. The LHMU breaks the sub-clause down into smaller groups of words, attributes meanings to these smaller phrases, re-packages them and then argues the sub-clause says as it claims. Such an approach in my view is at odds with the principles applicable to determining this matter as outlined in Kuck’s Case, Amcor and Re City of Wanneroo. It fails to consider the sub-clause in the context of the clause as a whole and of the Agreement and it fails to consider if its approach contributes to a sensible industrial outcome. The approach of the LHMU cannot, on any reasonable analysis, result in a meaning for the clause that could be attributed to the parties at the time they negotiated the existing Agreement.

[84] In determining the proper application of the sub-clause it is relevant to consider the purpose of the voluntary additional hours clause. This clause is an overtime clause by any other name. It appears to have been called ‘voluntary additional hours’ to distinguish the method of payment for the hours worked from what would otherwise be traditional overtime rates. I find on the basis of the evidence and submissions that the voluntary additional hours clause was designed to ensure that permanent employees of MSS had access to overtime in preference to the use of casual employees. It can be reasonably inferred that the casual rate of pay is applied to voluntary additional hours so as not to create a cost disincentive to offering such overtime to permanent employees. 57

[85] The voluntary additional hours provision of the Agreement should therefore be seen for what it is - overtime. It is not a scheme designed to give any particular group of employees access to hours over and above their rostered (average) of 38 hours per week at the expense of the capacity of other employees to be rostered for their full 38 hours per week.

[86] The Control Room appears to be the most highly skilled area of security work at the airport. Control Room employees can work almost anywhere at the airport but it is difficult for employees outside the Control Room to work in the Control Room. Employees working in the Control Room maintain their skills by doing Control Room work. Relievers therefore trained to work in the Control Room need to be given sufficient work in the Control Room to maintain their skills.

[87] MSS has a certain number of permanent employees at the airport and a specific number of hours that must be covered on the basis of the requirements of the client. Constraints exist in rostering employees based on the skills which are necessary to work in particular areas and the requirement for employees to be rostered off. Within these constraints, until all permanent employees are placed into the roster it is difficult to see how additional hours could be available to be worked as overtime on a voluntary or involuntary basis or offered to casual employees.

[88] Once hours on the roster are identified as not being able to be covered by the available workforce they become available as voluntary additional hours. This much is clear from the wording of sub-clause 17.7 which states that:

17.7 An Employee may request to work Voluntary Additional Hours and the Company may agree to such a request, provided that:

17.7.1 such hours are available...

(underlining added)

[89] Sub-clause 17.4 itself states, in part:

If any additional hours become available in a particular work area...

(underlining added)

[90] It is only once hours become available that they are allocated on the basis of preference to employees who perform their ordinary shifts in the work area. It is at this point that the Control Room guards have priority access to the shifts that have not been filled in the Control Room.

[91] Clause 17.6 of the Agreement allows MSS to utilise involuntary overtime or casual employees to fill required hours if there are not enough participants in the voluntary additional hours scheme. Whilst nothing was put about this sub-clause it can be inferred that it is not intended that Relievers be given their hours after other permanent guards have taken their preferred additional hours. Otherwise sub-clause 17.6 would make it clear that the next step to be taken where there are not enough participants in the voluntary additional hours is to roster Relievers.

[92] Further, clause 17 must be seen in the context of the Agreement as a whole. The Agreement covers all employees at the airport. If it were intended that parts of the Agreement should operate for a select group of people it is reasonable to assume it would say so or be clear in the clause.

[93] Clause 17 of the Agreement does not operate to confer a right on employees to work voluntary additional hours but rather establishes a system of allocation of those hours once they become available. Any other interpretation of the clause would not contribute to a sensible industrial outcome.

[94] MSS has utilised a system of allocation of additional hours once they become available in the Control Room. This involves permanent guards indicating availability on a roster. That system comes into play after all employees have been rostered their (average) 38 hours per week. Any shifts available following this initial allocation or dropped shifts in the Control Room which become available are offered to permanent Control Room guards as voluntary additional hours. This is the system sought by the LHMU. The key difference is the point in time at which the hours are deemed to become available. To suggest, as the LHMU does, that the permanent guards in the Control Room should get to select the additional (overtime) shifts they want to work as voluntary additional hours before other permanent employees are given their normal shifts is neither supportable on a reading of the clause nor would it lead to a sensible industrial outcome.

[95] The LHMU suggests that Relievers (who are permanent employees) should be treated the same as casual employees - used to fill gaps after the Control Room guards have had their pick of the additional shifts. Such an outcome is to deny permanent employees their right to 38 hours per week and their right to be rostered in advance. Certainly Relievers are paid an allowance. In exchange for this allowance the Relievers agree to a greater degree of flexibility in their rostering and a willingness to change rosters at shorter notice than would otherwise be required under the Agreement. 58

[96] There is no evidence to suggest that rostering Relievers for their 38 hours prior to the identification of additional hours will deny permanent guards in the Control Room access to additional hours. The number of casual employees utilised at the airport suggests there are additional hours available after the rostering of permanent guards.

[97] The LHMU contends that this case is about equitable access amongst the permanent Control Room guards to voluntary additional hours. There is no evidence before the Tribunal that there is some inequity in how permanent Control Room guards who have indicated a willingness to work voluntary additional hours on the availability roster are given access to the additional hours once they become available. The only evidence presented indicated that some hours (shifts) that the Control Room guards believed should have been offered as voluntary additional hours actually were not available.

Finding

[98] For the reasons outlined above I reject the meaning the LHMU would have me give to the operation of sub-clause 17.4 and therefore clause 17 of the Agreement.

[99] The evidence in this matter deals with the rostering arrangements and the history of those arrangements in the Control Room. Whilst submissions were made that the same dispute exists in other areas of the airport there was no evidence to support this. As such the findings are restricted to the Control Room.

[100] Considered as a whole I find that clause 17, and in particular sub-clause 17.4 of the Agreement, does not apply such that permanent Control Room guards should receive access to voluntary additional hours before all permanent guards, including Relievers, have been allocated their full shifts - subject of course to skill and rostering requirements.

[101] The exception to this is dropped shifts which should, as is current practice, be allocated first to permanent Control Room guards who have indicated a willingness to work voluntary additional hours on an availability roster in accordance with sub-clause 17.4 of the Agreement. Any shifts dropped by Relievers rostered to the Control Room should be considered dropped shifts (including where a Reliever is re-rostered on short notice to another area). A failure by a permanent guard to indicate availability on the availability roster relieves MSS of the requirement to offer voluntary additional hours to that person. Despite this MSS should monitor the offering of voluntary additional hours where no guard has indicated availability to ensure no favouritism or bias enters the system.

[102] Given that no evidence was adduced with respect to the operation of clause 17 (in particular sub-clause 17.4) in other areas to which the Agreement applies, this decision should not affect any areas other than the Control Room at the airport.

COMMISSIONER

Appearances:

P. Sutton for the Applicant.

G. Katz for the Respondent.

Hearing details:

2011.

Melbourne:

23 & 24 February.

 1   Agreement clause 2.2.

 2   Application to Fair Work Australia paragraph 4.1.

 3   Application to Fair Work Australia paragraph 4.4.

 4   Agreement clause 9.

 5   Kucks v CSR Ltd (1996) 66 IR 182, 184.

⁶ Amcor v Construction, Forestry, Mining and Energy Union and Ors [2005] 222 CLR 241, 270.

 7   Re City of Wanneroo v Holmes 30 IR 362, 378-9.

 8   Transcript PN129; 135.

 9   Transcript PN57; Exhibit LHMU3.

 10   Transcript PN117.

 11   Exhibit LHMU2 paragraph 46.

 12   Transcript PN162; Exhibit LHMU2 paragraphs 48-50.

 13   Exhibit LHMU2 paragraph 53.

 14   Transcript PN183.

 15   Exhibit LHMU2 paragraphs 62-77 & Attachment CG9-12.

 16   Exhibit LHMU4 paragraph 14.

 17   Transcript PN646; Exhibit LHMU4 paragraph 12.

 18   Transcript PN671.

 19   Exhibit LHMU4 paragraphs 15-16.

 20   Exhibit LHMU4 paragraph 18.

 21   Exhibit LHMU4 paragraphs 21-23.

 22   Transcript PN722.

 23   Exhibit MSS1 paragraph 11.

 24   Exhibit MSS1 paragraph 15.

 25   Exhibit MSS1 paragraph 16.

 26   Exhibit MSS1 paragraph 17.

 27   Exhibit MSS1 paragraphs 18-19.

 28   Exhibit MSS1 attachment TR8.

 29   Exhibit MSS1 paragraphs 30-31.

 30   Exhibit MSS1 paragraph 33.

 31   Transcript PN1025.

 32   Exhibit MSS2 paragraph 7.

 33   Exhibit MSS3.

 34   Transcript PN1080.

 35   Transcript PN1142-3.

 36   Transcript PN1126.

 37   Exhibit MSS4 paragraph 10.

 38   Transcript PN1197.

 39   Transcript PN1203-4.

 40   Transcript PN1215.

 41   Transcript PN1217.

 42   Transcript PN1263-4.

 43   Transcript PN1270-1274.

 44   Transcript PN1327.

 45   Transcript PN1223.

 46   Transcript PN1252.

 47   Transcript PN1297.

 48   Transcript PN1242.

 49   Transcript PN1302-5.

 50   Transcript PN1321.

 51   Transcript PN1409.

 52   Transcript PN1375.

 53   Transcript PN1384.

 54   Transcript PN1394.

 55   Transcript PN1449.

 56   Transcript PN1410.

 57   See generally transcript PN1066-7. There was no argument that this was not the rate intended to be paid when permanent employees work voluntary additional hours (as opposed to involuntary hours when ‘traditional’ overtime rates are paid).

 58   See sub-clauses 13.5 - Variation to rosters and 20.9 - Relieving Officer Allowance.

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