Maritime Union of Australia, The v Flinders Logistics Pty Ltd
[2018] FWC 1340
•14 MARCH 2018
| [2018] FWC 1340 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Maritime Union of Australia, The
v
Flinders Logistics Pty Ltd
(C2017/6699)
Flinders Logistics Port Adelaide Operations Enterprise Agreement 2016-2019
[AE424305]
| Stevedoring industry | |
| COMMISSIONER HAMPTON | ADELAIDE, 14 MARCH 2018 |
Dispute about a matter arising under the enterprise agreement – payment of 4 hour minimum – whether only for late cancellations – whether differentiation of Sunday and Public Holiday shifts from other shifts – principles discussed and applied – ordinary and natural meaning of enterprise agreement is that differentiation intended – determination made – liberty to apply for further determination on one aspect.
The dispute and the agreed facts
This decision concerns the determination of a dispute about the proper application of the Flinders Logistics Port Adelaide Operations Enterprise Agreement 2016-2019 (the EBA). That instrument is an enterprise agreement approved by the Commission[1] under the Fair Work Act 2009 (the FW Act). The matter is before the Commission as a result of an application by the Maritime Union of Australia (MUA) under s.739 of the FW Act and relies upon clause 1.10 Grievance and Dispute Settling Procedure of the EBA. The employer party to the EBA, and the respondent in this matter, is Flinders Logistics Pty Ltd (Flinders Logistics).
The parties have agreed to the following facts for the purposes of this matter:
· Flinders Logistics operates a stevedoring operation at Port Adelaide, employing approximately 60 employees.
· Flinders Logistics, its employees at Port Adelaide, and the MUA are covered by the Flinders Logistics Port Adelaide Operations Enterprise Agreement 2016-2019 (the EBA).
· On 4 December 2017 the MUA filed an application pursuant to section 739 of the FW Act for the Fair Work Commission (the Commission) to deal with a dispute in accordance with the Dispute Settlement Procedure at clause 1.10 of the EBA.
· The dispute affects permanent employees who perform stevedoring work at Port Adelaide, and concerns the interpretation of subclause 7.5.2 of the EBA.
· The Parties agree that the Dispute Settlement Procedure, set out in clause 1.10 of the EBA, has been followed, and that the Commission has jurisdiction to exercise its powers or functions to arbitrate the dispute.[2]
The parties have also agreed that the resolution of the dispute involves the determination of the following question:
“Pursuant to clause 7.5.2 of the Flinders Logistics Port Adelaide Operations Enterprise Agreement 2016-2019, are employees entitled to be paid 4 hours’ pay, calculated at normal time, for any shift cancellations after an employee is allocated to work the following shifts:
a. Sunday day shift;
b. Sunday afternoon shift;
c. Sunday night shift; or
d. Public Holiday that has not been allocated the day before?”
The relevant terms of the Enterprise Agreement
Without detracting from the terms of the EBA more generally, the following elements are relied upon by the parties and/or are apposite for present purposes:
“1.6 Aims & Objectives
The aims and objectives of this Agreement are to:
· Provide for continuous service improvement through a process of consultation and co-operation to ensure that the Company is able to offer a quality service and compete with other Port Services and logistics providers.
· Ensure stability of service during the term of the Agreement.
· Increase employee productivity at all levels through the introduction and development of greater skill levels and flexibility and supported by appropriate training programmes.
· Support the changing nature of industrial and management relations resulting in a consultative culture based on mutual trust, co-operation and a more informed workforce.
· Provide an environment that will maintain a workplace free from industrial disputation.
… …
7. Operational Matters
7.1 Introduction
The Company is involved in delivering logistics solutions to clients that involve receival of cargo by rail, road or sea, and then loading or unloading cargo from rail, road or sea using specifically designed logistics solutions. These are currently focused upon bulk products, but are not limited to this scope into the future.
These solutions can be delivered using a combination of internal labour and service providers or inter hire where appropriate.
This involves operation of a yard and stevedoring function.
The following describes the arrangements for Flinders Logistics employees who work in this operation:
7.2 Definitions
7.2.1 Walk Up Start
A walk up start is defined as when an employee reports for work but is sent home before commencing any work.
… …
7.3 Allocation of Labour
All employees will be allocated on the job, or best endeavours to be made to complete allocation by 16:00 the day prior, or by 16:00 Friday for the weekend.
Flinders Logistics will notify employees by SMS.
If possible, the shift duration will also be notified at the time of allocation. The duration of this shift shall be the minimum payment unless Clause 7.5.1 Cancellations of Weekday Allocations or Clause 7.5.2 Cancellation of Weekend and Public Holiday Allocations are applicable. i.e. if a 12 hour shift is ordered and a vessel completes 9 hours into the shift, the 12 hours payment shall apply.
To replace an employee not reporting for duty, or an increase in employee requirements, Flinders Logistics shall be able to call another employee, to ensure adequate staff are available for the task being performed.
Work shall continue while positions are being filled, as long as it is safe to do so.
… …
7.5 Cancellations
7.5.1 Cancellation of Weekday Allocations
Weekdays - Afternoon and Night shifts during the week, may be subject to confirmation. This confirmation will be via phone, to cancel or confirm the shift by 11:00. Employees will be informed of this requirement at the time of allocation (16:00 the day prior).
Cancellations under these conditions attract no payment.
7.5.2 Cancellation of Weekend and Public Holiday Allocations
Weekends – best endeavours shall be made to notify employees by 16:00 Friday the weekends allocation until (but not including) Monday dayshift.
Saturday afternoon and/or night shift allocation is as per 7.5.1 Weekdays.
Sunday dayshift employees may be required to ring the duty phone or the designated allocator for confirmation, variation of start time or cancellation by 16:00 on Saturday.
Sunday afternoon and night shift may be contacted by 11:00 on Sunday for confirmation, variation of start time or cancellation of shift.
Arrangements would be the same for a public holiday, which is not allocated the day before. (i.e. the Monday of a long weekend).
Variation of shift start time may include being allocated to a different shift, on the same day. i.e. day to eve etc., but moving to the next day shift will be a shift cancellation i.e. Saturday eve to Sunday day.
Cancellations under these conditions attract 4 hours payment at normal time.
7.6 4-Hour Minimums
Can be used for
· training and meetings,
· walk up starts or late cancellations
· trimming of bulk cargo
· cleaning of hatches after cargo operations have completed
· Yard and rail operations.
· Allocations
· Wash down or clean down of berth, conveyors, hoppers or other required equipment
· Weighbridge set up
· Rig tenders
· Vessel set up (not loading /unloading)
and will be notified at the time of allocation.
If the work is considered stevedoring and it exceeds 4 hours, a minimum of 8 hours shall be paid at the appropriate rate.
This clause is not enforceable if working on interstate / intrastate transfer.”
Given the joint position of the parties about the Commission’s jurisdiction to determine this matter, it is not necessary for me to set out the terms of clause 1.10 of the EBA. I note that this procedure includes an express empowerment of the Commission to arbitrate disputes, including those in relation to the interpretation or application of the EBA, and that any decision of the Commission is, subject to appeal to a Full Bench, agreed to be binding and final.
The positions of the parties
3.1The Maritime Union of Australia
The MUA contends that subclause 7.5.2, when read in context, has a plain and ordinary meaning which should be applied. That is, employees who are allocated to work on Sunday day, afternoon or night shift, or a Public Holiday shift, and that allocated shift is then cancelled, are entitled to be paid 4 hours’ pay, calculated at normal time for the cancellation. This applies even if the time of the cancellation is prior to the nominated contact times.
The basis for that proposition can be summarised as follows:
· Subclauses 7.5.1 and 7.5.2 are directed at different scenarios and different outcomes in terms of the 4 hour payment are intended.
· Subclause 7.5.1 relates to the cancellation of Monday to Friday afternoon and night shifts that have been allocated to employees.
· Subclause 7.5.2 relates to the cancellation of Saturday, Sunday, and Public Holiday Monday shifts that have been allocated to employees.
· Under subclause 7.5.2 once a Sunday or Public Holiday shift is allocated, any subsequent cancellation of the shift (apart from a variation) attracts a payment of 4 hours calculated at normal time as specified in the last sentence of that provision.
· Consideration of context and purpose, as set out in Golden Cockerel,[3] reinforces the plain meaning of subclause 7.5.2. The ordinary meaning of the words used in the “Weekday” Cancellation Scenario and the “Sunday” Cancellation Scenario clearly distinguishes between cancellations made on weekdays and Saturdays, and cancellations made on Sunday and Public Holiday shifts.
The MUA also contend that the reference in clause 7.6 to “late cancellations” is intended to apply to scenarios other than those contemplated in subclause 7.5.2.
The MUA relied upon the witness statement of Mr Todd Stennett,[4] a Guaranteed Wage Employee engaged as a Stevedore within the Port Adelaide operations of Flinders Logistics. This statement was not contested by the respondent.
3.2Flinders Logistics Pty Ltd
Flinders Logistics contend that the EBA distinguishes between late and other cancellations and only late cancellations attract the 4 hour minimum payment. That is, under subclause 7.5.2, the 4 hour payment applies only when the cancellations occur after 16:00 hours on Saturday for the Sunday dayshift employees, and after 11:00 hours on Sunday for the Sunday afternoon and night shifts and (Monday) Public Holiday shifts.
The basis of Flinders Logistics’ contentions may be summarised as follows:
· The 4 hour payment is only applicable under subclause 7.5.2 where all of the conditions have been complied with. This includes the condition that employees on Sunday dayshift ring the duty phone to confirm the shift by 16:00 hours on Saturday.
· The intention that the 4 hour payment applies only to late cancellations is confirmed in clause 7.6, which refers to the 4 hour minimums being used for “late cancellations”.
· There is no payment for a week day cancellation made prior to 11:00 hours and this is consistent with the reference in clause 7.6 to a “late cancellation”.
The proper application of the Enterprise Agreement to the dispute
4.1The approach to be applied
A number of Full Benches of the Commission have outlined the approach that should be adopted in considering the construction and meaning of an enterprise agreement. The most recent statement of the principles was set out in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[5] (AMWU v Berri) in the following terms:
“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:
1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i) the text of the agreement viewed as a whole;
(ii) the disputed provision’s place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which it operates.
2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common assumption.
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”
This is a non-exhaustive statement of the principles to be adopted[6] and I have applied this approach in determining this dispute.
In Geo A Bond & Co Ltd (In Liq) v McKenzie,[7] (Geo A Bond) Street J said:
"...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."
In Re Aurora Energy Enterprise Partnership Agreement 2002 – 2005 Lacy SDP observed that:
“It is a widely accepted principle of statutory interpretation that the rules of construction are rules of common sense. Where the choice is between an interpretation that will result in inconvenience, injustice or absurdity and another which avoids such a result, then the latter ought to be adopted.”[8]
The importance of context was emphasised by Burchett J in Short v Hercus Pty Ltd[9] in the following terms:
“6. No one doubts you must read any expression in its context. And if, for example, an expression was first created by a particularly respected draftsman for the purpose of stating the substance of a suggested term of an award, was then adopted in a number of subsequent clauses of awards dealing with the same general subject, and finally was adopted as a clause dealing with that same general subject in the award to be construed, the circumstances of the origin and use of the clause are plainly relevant to an understanding of what is likely to have been intended by its use. It is in those circumstances that the author of the award has inserted this particular clause into it, and they may fairly be regarded as having shaped his decision to do so. The rules of construction, Mason and Wilson JJ. said in Cooper Brookes (Wollongong) Proprietary Limited v. The Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 26; (1981) 147 CLR 297 at 320, are really rules of common sense. Common sense would be much offended by a refusal to look at the facts I have summarized. As Isaacs J. said in Australian Agricultural Company v. Federated Engine-Drivers and Firemen's Association of Australasia [1913] HCA 41; (1913) 17 CLR 261 at 272, citing Lord Halsbury L.C.: "The time when, and the circumstances under which, an instrument is made, supply the best and surest mode of expounding it.
… …
8. That much is fairly clear. Where there is seen to be a difficulty, the court can often go to the history of the matter. A number of illustrations will be found in Nurses (South Australia) Award (Interpretation) Case (ubi supra). But an ambiguity or obscurity may not be immediately seen on the face of a document. Both the problem and its solution may appear only when the wider context from which an expression first sprang is brought to notice. Is the court then forbidden to look past the document itself that is before it? The respondent says the instant award is clear, and we must shut our eyes to what went before. I think there are two answers to this argument. On the one hand, I do not accept that the award is clear on its face. The fact that I have given it a meaning by a process of construction (as it happens, contrary to the respondent's contention) cannot disguise the possibility of understanding the language, as the learned judge understood it, differently. (Cf. Pickard v. John Heine and Son Limited [1924] HCA 38; (1924) 35 CLR 1 at 9, per Isaacs A.C.J.) That is certainly sufficient to justify a reference to its source. Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history, and to prefer to peer unaided at some obscurity in the language. "Sometimes", McHugh J. said in Saraswati v. R [1991] HCA 21; (1991) 172 CLR 1 at 21, the purpose of legislation "can be discerned only by reference to the history of the legislation and the state of the law when it was enacted". Awards must be in the same position.”
The nature of the present task has also been emphasised by the Full Bench in DP World Brisbane Pty Ltd v The Maritime Union of Australia[10] in the following terms:
“[31] Importantly, the task of interpreting an enterprise agreement does not involve re-writing a provision in order to give effect to the Commission’s view of what would be fair and just, without regard to the terms of the agreement. As Madgwick J observed in Kucks v CSR Limited:
‘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.’”
However, there may be circumstances where a provision is so badly drafted that there is no objectively clear intention. In Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd[11] Gageler J said:
“[51] Clause 4 can only be so construed for what it is: a clumsily tailored variation of an ill-fitting off-the-shelf precedent. To bring linguistic and grammatical precision to its construction would be to burden the clause with more weight than its jumble of words will bear.
[52] The competing constructions of cl 4 being open on its language, and the textual indications in favour of each being at best equivocal and at worst conjectural, the choice between them comes down to deciding which is more reasonable considered as matter of ‘commercial efficacy or common sense’.”
All of the above observations are consistent with the approach taken in AMWU v Berri. In the end, my present task is to ascertain the objective intention based upon the language and terms of the EBA, when read as a whole, and considered having regard to its context and purpose.
4.2The context and factual findings
The agreed facts set some of the context for this matter. In addition, the factual operation of the shift allocations and cancellations is set out in the statement of Mr Stennett. Based upon that uncontested evidence the following applies:
· Employees allocated to work on day, afternoon or night shift between Tuesday and Saturday receive a text message and an email around 15:00 to 16:00 hours the day before notifying them of their shift for the following day;
· For allocations of Monday shifts, that are not Public Holidays, employees are notified by text message and email on either the Friday, or the Sunday afternoon, immediately before their shift;
· Shifts can be cancelled due to operational error where too many people are allocated to the shift, or where the previous shifts are ahead of schedule;
· An employee allocated to an afternoon or night shift between Monday to Saturday whose shift is cancelled after 11:00 hours currently receives 4 hours’ pay at normal time for what is referred to as a “walk up start”;[12]
· An employee allocated to an afternoon or night shift between Monday to Saturday whose shift is cancelled before 11:00 hours receives no payment;
· For Sunday and Public Holiday Monday allocations, employees who are allocated to work receive a text message and an email on the Friday beforehand at around 16:00 hours to notify them of the rostering for the shift. If the Sunday afternoon or night shift is cancelled before 11:00 hours on Sunday, no payment is currently made to employees for the cancellation. This is the substance of the dispute in this matter.
The parties have not relied upon the general history of the provision and nothing in particular about the surrounding circumstances has been put to me. It is clear from the EBA that the provisions contemplate a business that regularly operates at all times considered in clause 7.5 and that the nature of the business is such that the exact staffing requirements may change on a regular basis, and potentially at relatively short notice, having regard to shipping and other operational contingencies. This is reflected in various provisions including the adoption of notions that Flinders Logistics will use “best endeavours” to notify employees of allocations (subclauses 7.3 and 7.5.2) and that allocations “may’ be subject to confirmation (clause 7.5).
4.3The terms of clause 7.5 when read as a whole and in context
At one level the provisions are susceptible to more than one meaning. In that regard, the parties have not referred to surrounding circumstances beyond those set out above, or to any extrinsic material that might assist the present task. In any event, the ordinary and natural meaning of the provisions when read in context and as a whole, leads to a clear objective intention as outlined below.
The starting point for consideration of clause 7.5 is to consider the provision in context. This includes clause 7.3 which provides that all employees will be allocated on the job, with best endeavours to complete the allocations by 16:00 hours on the day prior (Friday for the weekend days). Flinders Logistics are to notify the employees of the allocations and this will include, if possible, the shift duration.
The (notified) duration of any allocated shift will be the minimum payment unless subclause 7.5.1 and subclause 7.5.2 apply. Accordingly, the provisions of subclauses 7.5.1 and 7.5.2 are intended to operate as exceptions to this general rule.
Clause 7.5 is directed to cancellations of allocated shifts, but also contemplates procedures to confirm or vary the allocations. It is also evident that subclauses 7.5.1 and 7.5.2 must be considered together in context and that each contemplates a different approach to the consequences of cancellations. That is, the apparent objective intention of the two subclauses is to provide for different outcomes to apply on certain days. This arises from the structure and terms of the provisions themselves.
Subclause 7.5.1 applies to afternoon and night shifts during the week (weekdays not being a Public Holiday). The provision contemplates that these allocations may be subject to confirmation. Where confirmation is to be required, the employees will be informed of this requirement at the time of allocation (16:00 on the day prior – consistent with the stated intention of clause 7.3) and is to involve the cancellation or confirmation by 11:00 hours. Where a cancellation is made under these conditions, no payment is required. This outcome applies even when the confirmation practice is not undertaken by phone and the strict adherence to the literal provision is not intended. This aspect is agreed in the context of subclause 7.5.1.[13]
Where a cancellation does not take place within these parameters, such as after 11:00 hours, a payment in relation to the shift is required. This latter example was also agreed by the parties to be both current practice and the proper application of the EBA.
Subclause 7.5.2 is directed to weekend and Public Holiday allocations. In respect of weekend shifts, Flinders Logistics will use its best endeavours to notify employees of their allocations by 16:00 hours on the preceding Friday. Beyond that ‘requirement’, Saturday afternoon and/or night shift allocations are dealt with separately and the provision adopts the terms of subclause 7.5.1 and the arrangements set out above apply to those allocations.
Subclause 7.5.2 then sets out provisions dealing with Sunday dayshift employees where they may be required to seek confirmation (including variation of start time or cancellation) by 16:00 hours on Saturday. In relation to Sunday afternoon and night shift employees, and those allocated to work on a Public Holiday (except where they are allocated to that shift on the day before the Public Holiday), they may be contacted by 11:00 hours on the Sunday for confirmation.
Where cancellations occur under the conditions set out in subclause 7.5.2, a 4 hour payment at normal time applies. Given the structure of the provisions and the fact that subclause 7.5.2 refers to the payment being made when cancellations occur “under these conditions”, it is apparent that this does not operate as Flinders Logistics contends. That is, the final part of the provision does not say (as does subclause 7.5.1) that no payment will be made (where the conditions have been met) and it also does not say that cancellations, except those made under the conditions set out in the subclause, will attract the 4 hour payment.
Consistent with the agreed approach to subclause 7.5.1, reference to “cancellations (which) occur under these conditions” is to be applied having regard to the general intention of the parties and not by applying a strict literal adherence.[14] This is to be contrasted with the evident intent of subclauses 7.5.1 and 7.5.2 to expressly provide for different outcomes in relation to the 4 hour payment entitlement.
The reference in clause 7.6 to late cancellations may be indicative of an intention to have that concept apply in the above circumstances; however, it does not necessarily follow that this is the (only) intended application. Further, there are specific provisions dealing with the 4 hour payment in clause 7.5 and the potential implications of clause 7.6 do not provide sufficient justification to read words into subclause 7.5.2 that are not there. This is particularly so, given the structure of clause 7.5 and the expressly different approach adopted to the 4 hour payment in each subclause of that provision.
For reasons set out earlier it is not appropriate for the Commission to attempt to rewrite the EBA. Further, this is not a case where the provisions are so badly drafted that an objectively clear intention cannot be ascertained. The approach outlined above also gives appropriate latitude to the drafting without overlooking the clear import of the express provisions.
I leave aside the potential consequences of cancellations that are not made in accordance with subclause 7.5.2 (that is, cancellations occurring beyond the designated contact times) as this issue has not been addressed by the parties. To the extent that this leads to some continuing uncertainty about the application of the provisions, the parties should consult about this aspect in light of the determination made by the Commission in this decision. I grant leave to the parties to seek that the Commission also deal with this aspect if required.
The answer to the question below contains a caveat which reflects this aspect.
Conclusions
For reasons set out above, the ordinary and natural meaning of clause 7.5 when read in context leads to the proper application of the EBA being as follows:
Pursuant to subclause 7.5.2 of the Flinders Logistics Port Adelaide Operations Enterprise Agreement 2016-2019, employees are entitled to be paid 4 hours’ pay, calculated at normal time, for any shift cancellations made in accordance with the provision after an employee is allocated to work the following shifts:
a. Sunday day shift;
b. Sunday afternoon shift;
c. Sunday night shift; or
d. Public Holiday that has not been allocated the day before.
Leave has been granted as outlined above.
COMMISSIONER
Appearances:
S Danalis of the Maritime Union of Australia.
B Jackson of Flinders Logistics Pty Ltd.
Hearing details:
2018
Adelaide
6 March.
<AE424305 PR600908>
[1] [2017] FWC 1340, on 11 May 2017.
[2] Drawn for a Statement of Agreed Facts filed by the parties.
[3] This is a reference to Australian Meat Industry Employees Union, The v Golden Cockerel Pty Limited[2014] FWCFB 7447.
[4] Exhibit MUA2.
[5] [2017] FWCFB 3005. This decision was handed down after the hearing of this matter and both parties were given an opportunity to make supplementary submissions.
[6] See also Paper Australia Pty Ltd t/a Australian Paper v Australian Manufacturing Workers’ Union [2017] FECFB 1621 at [21].
[7] [1929] AR (NSW) 498 at 503; See also City of Wanneroo v Holmes (1989) 30 IR 362 (at 378-379) and Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2].
[8] Re Aurora Energy Enterprise Partnership Agreement 2002 – 2005, [2008] AIRC 1074, at para 17; See also National Union of Workers v Plexicor Australia [2008] AIRC 1134.
[9] (1993) 40 FCR 511.
[10] [2013] FWCFB 8557.
[11][2017] HCA 12.
[12] I note that this may be the application of clause 7.6 as a “late cancellation” given that both options are contained in that provision.
[13] Confirmed during the course of the hearing.
[14] See Geo A Bond.
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