Maritime Union of Australia, The v Qube Ports Pty Ltd
[2015] FWCFB 3164
•13 MAY 2015
| [2015] FWCFB 3164 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Qube Ports Pty Ltd
(C2015/2176)
Stevedoring industry | |
SENIOR DEPUTY PRESIDENT HAMBERGER | SYDNEY, 13 MAY 2015 |
Appeal against decision [2015] FWC 912 of Commissioner Hampton at Adelaide on 27 February 2015 in matter number C2014/730.
[1] The Maritime Union of Australia (MUA, the appellant) has applied for permission to appeal a decision issued by Commissioner Hampton on 27 February 2015 (Decision) 1. The Decision was made in the exercise of arbitration powers conferred by the dispute resolution procedure in the Qube Ports Pty Ltd and the Maritime Union of Australia Enterprise Agreement 2011 (the Port of Adelaide EA).
[2] The Decision dealt with the determination of a dispute concerning the proper application of the Port of Adelaide EA as it relates to the entitlements of Full-Time Salaried Employees (FSEs) with regard to public holidays and ‘Closed Port Days’ (CPDs). The Commissioner described the dispute thus:
‘[5] It is common ground that Closed Port Days (CPDs) have been a tradition in stevedoring industry agreements for many years. Originally, CPDs represented particular days of the year where a port would actually close and no work would be undertaken.
[6] Over time, whilst reference is still made to CPDs and they are treated as special days, ports now do not generally close.
[7] Under the relevant instruments applying in this workplace at least since 2008, public holidays have operated on the basis that where a FSE is not required to work on such a day, the normal hours of work are credited as being worked for the purposes of the employees’ annual working hours commitments. The provisions attaching to this benefit were subject to further change in 2011.
[8] CPD arrangements under the Port Adelaide EA, and previous collective agreements applying to this workplace, nominated specific days which were also in practice declared or prescribed public holidays. In addition, the various provisions provided that one of the days would fall on a date to be agreed between the (local) parties. Generally that day was considered to be a union picnic day and coincided with a public holiday (Adelaide Cup Day in May or the equivalent public holiday when that day was moved to the second Monday in March).
[9] In negotiating changes leading to the current Port Adelaide EA some additional words were included in the general provision dealing with public holidays. Further, the date of the (locally) agreed CPD at Port Adelaide was resolved to be the third Sunday in March in each year. In 2014, that day fell on 16 March and it is common ground that this was not a public holiday in South Australia. I have proceeded on that basis.
[10] Qube called for volunteers amongst the FSEs to work on 16 March 2014 and referred to the particular CPD provision in clause 4.8 of Part B of the Port Adelaide EA in doing so. There were no volunteers notified to Qube (no responses were provided) and in the end result no FSE’s worked on 16 March 2014. Other Qube employees were utilised on that day.
[11] The dispute concerns whether the FSE employees should have had the normal hours on that day (seven hours) credited to their accumulated annual hours requirement and/or been paid for work that exceeded their nominated annual hours if that time had been included. In essence, this involves resolving a dispute about the construction of a number of the provisions of the Port Adelaide EA that go directly or indirectly to CPDs and requires consideration of the intention of the agreement when a CPD does not fall on a public holiday.’
The relevant provisions of the Port Adelaide EA
[3] The Port Adelaide EA was negotiated between the parties in 2011 and approved by the Fair Work Commission in 2012. The negotiations and the structure of the Port Adelaide EA reflect both a national agreement common to all Qube/MUA agreements that is set out as Part A and a local agreement with provisions applying just to the Port of Adelaide in Part B.
[4] Clause 5.5 in Part A provides as follows:
‘5.5 In the event of any inconsistency between Part A and Part B of this Agreement, Part B will prevail to the extent of the inconsistency.’
[5] The FSEs are engaged on the basis of Annual Accumulated Hours and an annual salary associated with their classification and the accumulated hours.
[6] Clause 9.1 Full Time salaried Employees (FSEs) includes the following:
‘9.1.1 Terms of Engagement:-
(a) An FSE has an Annual Accumulated Hours requirement of 1820 hours, inclusive of all forms of approved leave.
...
9.1.2 Planned Time Off:-
(a) Planned time off for non-rostered FSEs will be provided subject to the provisions below:-
(i) A non-rostered FSE may apply for up to 42 (non-accruable) days planned time off in a 12 month period. Planned time off is non-accruable and will not contribute towards Annual Accumulated Hours.
(ii) Planned time off can be applied for seven (7) days in advance or earlier and will be approved subject to the following conditions:-
- An FSE is on track with Accumulated Hours by being within 36 hours of pro rata requirements.
- Employees with sufficient skills are available.
- Planned days off can be taken in conjunction with other leave periods as described herein.
(b) When an application for planned time off is received, the Company will respond within seven (7) days of the application.
(c) Planned time off may be taken in a manner to include no more than two (2) non consecutive seven (7) day periods, one of which will be taken in each six (6) month period, unless otherwise agreed. The remaining days will be taken in periods no greater than two (2) days unless otherwise agreed, such days will not be unreasonably withheld.
(d) Once approval has been given, the employee will not be required to work regardless of changed circumstances, unless the employee chooses to do so.’
[7] Clause 4.0 Hours of Work is contained in Part B and clause 4.1 provides the accumulated hours of permanent employees as follows:
‘4.1 Permanent Operational Employees ~ Annual Accumulated Hours
4.1.1 Permanent operational employees are required to work 1645 Annual Accumulated Hours exclusive of annual leave in each 12 month period from the commencement date of this Agreement.
4.1.2 Work periods (including shift extensions) may vary between seven (7) and 12 hours, other than where specified in this Agreement. Shifts of four (4) hours duration or less are detailed in Clause 4.5.
4.1.3 Work periods (including shift extensions) will count towards Annual Accumulated Hours other than where specified in this Agreement.
4.1.4 Permanent operational employees shall not be placed in roster panels and shall be available for totally irregular allocation in accordance with the notification procedures of this Agreement.
4.1.5 An employee who is absent on personal leave will have seven (7) hours deducted from the Accumulated Hours for each day of leave.
4.1.6 Each yearly Annual Accumulated Hours requirement shall standalone. In the event that it is obvious that the designated hours will not be reached in particular year, the parties shall confer not later than three (3) months prior to the conclusion of that year to consider the situation and where agreed, shall implement measures to avert the likely shortfall. Once the agreed measures have been implemented, any remaining shortfall will be rolled over and must be utilised within the term of this Agreement.’
[8] Accordingly, the accumulated hours of 1820 operate on a financial year basis and involve the FSEs being required to work 1645 hours with a period of five weeks annual leave (175 hours).
[9] Clause 30 Public Holidays is set out in Part A and provides as follows:
‘30. PUBLIC HOLIDAYS
30.1 Public Holidays - Other Than Closed Port Days
(a) An FSE when working on a public holiday specified within the Award, as part of ordinary hours, shall be paid at the salary rate.
(b) Where an FSE is available to work but not allocated to work on a public holiday (including Closed Port Days) as specified in the Award, that employee will be credited with seven (7) hours to be deducted from their accumulated hours.
(c) During period of annual leave when a public holiday falls, an FSE will be credited with seven (7) hours to be deducted from his/her annual accumulated hours.
(d) VSEs [Variable Salaried Employees], GWEs [Guaranteed Wage Employees] and Supplementary Employees are required to be reasonably available for work on public holidays, and if worked, shall be paid the composite rate.
(e) A VSE will be paid seven (7) ordinary hours at the Clause 11, Grade 2 rate for any public holiday (Including Closed Port Day), not worked.
30.2 Closed Port Days
(a) The following days will be identified as Closed Port Days when certain employees are required to work:-
(i) Good Friday;
(ii) ANZAC Day;
(iii) Labour Day; and
(iv) Another day agreed between the parties.
(b) Nothing prevents an employee from initially declining or volunteering to work on Closed Port Days, provided that employees rostered to work on Closed Port Days, will be required to work where insufficient employees with the necessary skills as required to meet customer requirements volunteer to work the day.
(c) The Company will call for volunteers on a “to be confirmed” basis one (1) month in advance of the applicable day.
(d) The Company will provide four (4) days’ notice of the final requirement to work on the Closed Port Days.
30.3 The above arrangements will not apply to Christmas Eve and Christmas Day, in which circumstance no rostered employee will be compelled to work. The Company may, however, conduct operations between the end of Day Shift on Christmas Eve and the nominal commencement of the Day Shift on Boxing Day, calling for volunteers, as required.’
[10] Clause 31 Christmas and New Year’s Eve Working Arrangements in Part A further provides as follows:
‘31. CHRISTMAS AND NEW YEAR’S EVE WORKING ARRANGEMENTS
31.1 It is the intention of the Company that work will cease at the conclusion of Day Shift being 1500 hours on both Christmas Eve and New Year’s Eve and work shall resume on the Day Shift of the following day. In the event of unforeseen circumstances where the completion is delayed beyond 1500 hours, to the maximum of 12 hours, employees will make themselves available to extend and complete the vessel.
31.2 The application of this clause is intended to be applied where the vessel would be completed inside the extension period. Parties to this Agreement acknowledge the spirit and intent of this arrangement.
31.3 An FSE on an annual accumulated hours arrangement, and who works the Closed Port Day, shall be paid two and a half (2.5) times the ordinary rates as specified in Clause 11 for any shift worked with no day in lieu, unless the employee elects to be paid one and a half (1.5) times the ordinary rate as specified in Clause 11, plus a day in lieu.
31.4 VSEs, GWEs and Supplementary Employees will be paid the appropriate composite rate as defined in the relevant section of the Agreement, plus a payment equivalent to single time at the appropriate Clause 11 rate.
31.5 For the avoidance of doubt, and for the purposes of crediting of annual accumulated hours, a public holiday/Closed Port Day falls or the substituted day, but not both. Notwithstanding the foregoing, any hours worked shall be credited towards annual accumulated hours.’
[11] Despite the heading and the layout of clauses 30 and 31 of the Port Adelaide EA, it was common ground before the Commissioner that (only) clauses 31.1 and 31.2 apply to Christmas and New Year’s Eve. It was also common ground that clauses 31.3, 31.4 and 31.5 apply to CPDs, in effect, as if they had been included in clause 30. This was explained by the history of the provisions and represented a drafting oversight. The Commissioner dealt with the dispute on the basis of this common understanding of those particular provisions.
[12] Part B contains a procedure for CPDs in the Port of Adelaide in the following terms:
‘4.8 Procedures for Closed Port Days
4.8.1 Notwithstanding Clause 30.2 of Part A of this Agreement, the following procedures will apply in respect to the calling for volunteers and locking in employees to work on Closed Port Days:-
(a) Volunteers will be called for (2) weeks in advance of the Closed Port Day.
(b) The Company will confirm which employees are required to work two (2) days in advance of the Closed Port Day (e.g. for a Friday Closed Port Day, the Company will lock in employees on Wednesday at the normal allocation time).
(c) Allocation of shift and shift commencement time will be made at the normal allocation time the day prior.
4.8.2 The application of the Closed Port Day, for Adelaide port only, will be from 0800 hours on the Closed Port Day to 0800 hours on the following day. This means that the Night Shift on the day of the Closed Port Day, that is the first shift, will not be part of the Closed Port Day but the Night Shift of the day following, that is the first shift of the day following, will be part of the Closed Port Day. This application shall apply only on the basis that the Closed Port Day does not extend past 24 hours in total. This does not apply to the Christmas or New Years Closed Port Day/period. Anzac Day arrangements will be by agreement between the employee wanting to attend the dawn service and management.
4.8.3 In all other respects, Clause 30.2 of Part A applies.
4.8.4 The Closed Port Day of choice or picnic day will be taken on the 3rd Sunday of March in each year of this agreement.’
The Decision
[13] The Commissioner indicated that he had applied the approach to the construction and meaning of an enterprise agreement summarised by the Full Bench in The Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd 2:
‘[41] From the foregoing, the following principles may be distilled:
1. The AI Act does not apply to the construction of an enterprise agreement made under the Act.
2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.
3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:
(a) 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;
(b) notorious facts of which knowledge is to be presumed;
(c) evidence of matters in common contemplation and constituting a common assumption.
7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.
8. Context might appear from:
(a) the text of the agreement viewed as a whole;
(b) the disputed provision’s place and arrangement in the agreement;
(c) the legislative context under which the agreement was made and in which it operates.
9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is 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.
10. 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.’
[14] The Commissioner also made reference to the following comment made by the authors of Halsbury’s Laws of Australia:
‘A written instrument must be construed as a whole and not by reference to parts of it alone. An instrument must be read as a whole in order to ascertain the true meaning of its several clauses, and the words of each clause should be interpreted so as to bring them into harmony with the other provisions of the deed, provided that interpretation does no violence to their natural meaning. An instrument must not be construed in such a way that one part would contradict another part, and effect must be given to each and every word and clause within the instrument.’ 3
[15] The Commissioner found that the terms of the Port Adelaide EA are susceptible to more than one meaning, particularly as regard to the operation of clause 30.1(b). He therefore considered that evidence of surrounding circumstances is relevant as an aide to help establish ‘the common objective intention based upon the language and terms of the agreement, when read as a whole and considered having regard to its context and purpose’.
[16] The Commissioner observed that the relevant clauses of the Port Adelaide EA were negotiated in the context of ‘previous industry awards and collective agreements’and that ‘the negotiations for the agreement took the form of changes that were to be made to the then extant agreement’.
[17] The Commissioner noted that:
‘[51] FSEs are paid a guaranteed composite salary based upon the required accumulated hours (1645 hours of work plus leave provisions taking the total to 1820 hours) which operate on a financial year basis. Days worked and days taken as leave all count towards those hours and are credited. Subject to the FSEs being available, public holidays which are not worked are also credited in that manner.
[52] Public Holidays are defined in the Port Adelaide EA by reference to the Stevedoring Award 2010 (the modern award) and this in turn relies upon the NES in s.115 of the Act. The NES definition includes nominated days and, in general terms, other days, or part-days, declared or prescribed by or under a law of a State or Territory to be observed generally within the State or Territory, or a region of the State or Territory, as a public holiday.
[53] An (additional) union picnic day is not provided by the modern award and it is common ground between the parties that the third Sunday in March is not a nominated public holiday under the NES (or the award).
[54] The provision that is now clause 30.1(b) in the Port Adelaide EA was first inserted into the P&O Automotive and General Stevedoring and The Maritime Union of Australia Union Collective Agreement (Port Adelaide) 2008 (the 2008 EA). It is clear from the evidence that this arose from a claim about arrangements to apply on public holidays. At the time, the provision referred to public holidays in the Stevedoring Industry Award 1991 and public holidays were defined in that award to include a picnic day in each State and Territory. That is, the picnic day was a “public holiday”. I am also satisfied that the inclusion of the words “including CPDs” was undertaken by the parties to confirm that the provisions would apply to CPDs that were also public holidays.
[55] Prior to the 2008 EA, FSEs that did not work on a public holiday were not credited with any hours on that day.
[56] The change to clause 30.1(b) to include the words “available for work” occurred in the 2011 agreement as a result of a (national) claim made by Qube to seek to ensure that employees would not be credited for a public holiday when they were not available to work on any such day.
[57] During the course of the Part B negotiations the MUA sought an alteration in the CPD arrangements at the Port of Adelaide such that the MUA picnic day would change from the March public holiday to the third Sunday to allow a family picnic day to occur.’
[18] The Commissioner found that:
‘[58] ... there was little discussion about the implications of the change to the CPD at the Port of Adelaide and the direct impact upon the crediting of hours or related arrangements was not discussed. There was an exchange between the negotiators as part of the Part B discussions to the effect that the change in day would mean that the day would be paid in the same way that the public holiday CPD had been. The difficulty is that what this meant was not articulated and the (now) apparent dispute about how the provisions operated more generally was not evident.’
[19] The Commissioner noted that:
‘[64] The structure of clause 30 itself creates some uncertainty. The clause is directed, according to its name, to public holidays, however it is evident from clause 30.2 that one of the CPDs may not necessarily be a public holiday (clause 30.2(a) (iv)) and this has now occurred in the Port of Adelaide. Further, the title of Clause 30.1 appears on face value to imply that the provision only applies to public holidays that are not CPDs (i.e. other than CPDs), however, clause 30.1 makes specific reference to CPDs in clauses (b) and (e).’
[20] The Commissioner found that:
‘[66] When considered as a whole, it is apparent that the Port Adelaide EA establishes four different, but related, special classes of days. Namely, public holidays, CPDs, Christmas Day, and Christmas and New Year’s Eve.’
[21] The Commissioner continued:
‘[67] ... Based upon the plain and ordinary meaning of the provisions, the common understanding about clause 31, and the history and largely uncontroversial operation of these provisions, the following emerges.
[68] Public Holidays, other than CPDs, Christmas Day, and Christmas and New Year’s Eve - for which different arrangements are made, are in general terms normal working days. That is, if an FSE works, they are paid their ordinary salary that has already been loaded for work on (normal) public holidays. However, there is an exception to the general rule in that an FSE who does not work on a public holiday and is available to work, will be credited 7 hours towards the annual accumulated hours.
[69] Subject to the overriding operation of clause 4.8 in Part B of the agreement, CPDs operate under the specific provisions of clause 30.2 and clauses 31.3, 31.4 and 31.5. This means that Qube must apply the process of seeking volunteers and then subsequently confirm which of the employees is required (including potentially those who have not volunteered) depending upon skill deficiencies. If an FSE does work on a CPD, they are paid double time and a half (or time and a half plus a day in lieu).
[70] Clause 30.3 applies to Christmas Day and in general terms work on that day relies upon volunteers.
[71] Christmas and New Year’s Eve arrangements contemplate work ceasing at the conclusion of the Day Shift, being 1500 hours, with some flexibility in the event of unforeseen circumstances as set out in clauses 31.1 and 31.2. Clauses 31.1 and 31.2 do not apply to CPDs and apply only to Christmas and New Year’s Eve.
[72] Annual leave arrangements are provided by clause 32 of the Port Adelaide EA and the relationship between such leave and public holidays is confirmed in clause 32.10.
[73] On the above basis, there are significant differences between public holidays and CPDs including in relation to payment if worked and the normal expectation that the FSEs will be required to work. The provisions of clause 30 are intended to establish those different arrangements and it is against that understanding that the present dispute should be considered.
[74] Clauses 30.1(b) and (e) expressly include CPDs and this must mean at least that, despite the heading of clause 30.1, CPDs that are also public holidays are covered by those provisions. The heading of clause 30.1 and the inclusion of the words “including a CPD” should be seen in that light. Further, for reasons referred to earlier, given the drafting of the agreement and the broader context, some care needs to be exercised in placing too much emphasis upon the structure of the individual provisions in this agreement.
[75] The precondition to Clause 30.1(b) relevantly states “Where an FSE is available to work but not allocated to work on a public holiday (including Closed Port Days) as specified in the Award, ...” This phrase is to be read as a whole. It is common ground between the parties that the new picnic day is not a public holiday as specified in the modern award. It is apparent from the history and context that the provision was originally intended to apply to public holidays. As outlined earlier, the definition of a public holiday has changed since that time. As with others issues, the parties may well not have sufficiently turned their minds to the implications of that change in definition when negotiating the terms of the Port Adelaide EA.
[76] The natural meaning of the provision, when read as a whole and in context, is that clause 30.1(b) applies to public holidays as specified in the modern award, including CPDs that are also public holidays. That is, the inclusion of the phrase “(including CPDs)” is to confirm that a CPD that is a public holiday remains a public holiday and is covered by that provision. This is consistent with the context and history of the provision, recognising that the definition of a public holiday has changed since it was first negotiated.’
[22] The Commissioner found that there was nothing else in the text of the agreement that required clause 30.1 (b) to be read as including CPDs that are not public holidays. He discounted evidence concerning the understandings of the parties to the negotiations around Part B.
‘... each of the parties made assumptions about those matters but a common intention on the combined effect of changes to Parts A and B of the Port Adelaide EA was not fully articulated. It is also evident to me that the potential implications of the CPD not falling on a public holiday were not fully considered by the parties at that time. That is, there is an absence of common contemplation constituting a common assumption about these issues as discussed in Golden Cockerel.’
[23] He concluded that clause 30.1 (b) only applies to CPDs that are also public holidays. It was not in dispute that 16 March 2014 was not a public holiday. The Commissioner concluded:
‘[97] As clause 30.1(b) does not apply to a CPD that is not a public holiday, including the local picnic day that occurred on 16 March 2014, the FSEs that did not work on that day (other than where leave arrangements applied) are not entitled to have hours credited for that day. That is, no other basis for the crediting of hours for 16 March 2014, outside of clause 30.1(b), has been advanced in this case or would appear to arise from the terms of the Port Adelaide EA.’
[24] Even though - given his finding that clause 30.1(b) only applies to CPDs that are public holidays - it was not necessary for him to do so to resolve the dispute before him, the Commissioner went on to consider the meaning of the expression ‘is available to work’. He took the view that the terms of the provision and the Port Adelaide EA more generally would mean that in order to be considered to be available for work on the CPD, the employees must volunteer and/or otherwise confirm their availability to work.
[25] The Commissioner noted that:
‘[87] The insertion of the phrase “if available to work” in clause 30.1(b) must clearly be taken into account and should be considered in the context of the provisions more generally as discussed earlier in this decision. The difference between (normal) public holidays and CPDs is that in general terms the FSEs are not expected to work on a CPD. This is the normal practice and forms some of the context for the provision. This is also confirmed in the wording of clause 30.2(a) which refers to the fact that on CPDs “certain employees are required to work”.
[88] The reference to the “certain employees” is made by clear by a consideration of the process in clause 30.2 which operates subject to the overriding provisions of clause 4.8 in Part B. That is:
● Qube must call for volunteers to work on a CPD two weeks in advance before locking in employees to work on such a day;
● Nothing prevents an employee from initially declining or volunteering to work;
● Qube may then roster employees to work on the CPD and provide two days notice; and
● Employees who did not volunteer can be required to work on the CPD but only if there are insufficient volunteers with the necessary skills to meet the customer requirements for work on that day.’
[26] The Commissioner rejected the MUA’s contention that as all of the FSEs can ultimately be compelled to attend, they are all ‘available’ for present purposes. He did so on the grounds that only where there is a skill shortage, can those employees who have not volunteered be compelled to work. He also considered that the MUA’s contention would virtually render the words ‘if available to work’ obsolete.
The appeal
[27] The MUA is appealing the Decision on the following grounds:
1. The Commissioner erred by failing to find that the Closed Port Day to be taken on the third Sunday in March as provided for in clause 4.8.4 of Part B of the Port of Adelaide EA was a public holiday, being a day substituted by that clause for the Adelaide Cup Day public holiday, in accordance with the terms of s.115 (3) of the Fair Work Act 2009 (the FW Act).
2. Alternatively, the Commissioner erred in construing clause 30.1 (b) of Part A and clause 4.8.4 of Part B of the Port of Adelaide EA by determining that clause 30.1 (b) had no application to a CPD which was not also a public holiday in that the Commissioner failed to give proper regard to the industrial context and purpose of the additional CPD picnic day, being the conferral of an additional day with the same benefits of a public holiday.
3. The Commissioner erred in construing the term ‘available’ in clause 30.1 (b) of the Port of Adelaide EA to mean that the employee must volunteer or otherwise confirm their availability to work on the day in question in that on a proper reading of the agreement, the clause indicates a period when the employee is not on another form of leave.
Consideration
[28] The application for permission to appeal is made under s.604 of the FW Act 2009. Section 604 states:
‘604 Appeal of decisions
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).
(3) A person may appeal the decision by applying to the FWC.’
[29] The Fair Work Commission must grant permission to appeal if it is satisfied it is in the public interest to do so. In GlaxoSmithKline Australia Pty Ltd v Colin Makin, 4 a Full Bench summarised the concept of public interest in the following terms:
“Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...”
[30] The Decision is not a discretionary one. Thus, if permission to appeal is granted, we must determine whether the Commissioner’s decision was correct, not whether it was reasonably open to him. 5 The only circumstance in which we can interfere with the Decision is where that decision has been attended by error.6
[31] In relation to the first ground of appeal, the MUA contends that the day nominated in clause 4.8.4 of the Port Adelaide EA was a day substituted for the Adelaide Cup Day public holiday, and should have been found, on that basis, to have been a day substituted within the meaning of subsection 115(3) of the FW Act. The MUA acknowledges that this was not part of its case at first instance. However it contends that the issue, concerning as it does the proper application of the National Employment Standards, should still be considered and determined by the Full Bench.
[32] We consider that the issue can be disposed of quite simply. Subsection 115 (3) of the FW Act provides that:
‘(3) A modern award or enterprise agreement may include terms providing for an employer and employee to agree on the substitution of a day or part-day for a day or part-day that would otherwise be a public holiday because of subsection (1) or (2).’
[33] The subsection envisages that an industrial instrument can contain a facilitative provision that would enable an individual employer and an individual employee to agree on an alternative day (or part-day) as a holiday in substitution for the days provided in s.115 (1) of the FW Act. Clause 4.8.4 of the Port Adelaide EA, by contrast, determines that the third Sunday of March will be a ‘Closed Port Day of Choice’ for the purposes of the agreement. The Adelaide Cup Day public holiday is still treated as a public holiday under the agreement and still attracts the operation of clause 30.1. In particular, when an FSE is available to work the Adelaide Cup public holiday but is not allocated to do so, that FSE will still be credited with seven hours to be deducted from their accumulated hours.
[34] Accordingly, we consider the first ground of appeal to be without foundation.
[35] With regard to the second (and more substantive) ground of appeal, the MUA contends that the Commissioner erred in concluding that clause 30.1(b) only applies to Closed Ports Days that are also public holidays under the Stevedoring Industry Award 2010. It submitted that the words ‘including Closed Port Days’ in clause 30.1(b) had served a function and purpose in the predecessor to the Port Adelaide EA, the P&O Automotive and General Stevedoring and The Maritime Union of Australia Union Collective Agreement (Port Adelaide) 2008, that was to make it clear that the provisions in respect of payment for public holidays also applied to Closed Port Days. There was no need, and thus, no intention, when the words were drafted, that they had any operation to distinguish between different classes of Closed Port Day, and to exclude any particular Closed Port Days.
[36] Clause 30 of the Port Adelaide EA, which falls in Part A, is headed Public Holidays. It has two sub-headings. The first is Clause 30.1 Public Holidays – Other Than Closed Port Days. The second is Clause 30.2 Closed Port Days. Thus, the MUA submits, the grouping of the provisions and the headings make clear that the latter are regarded as a subset of the former. In other words, CPDs are a subset of public holidays.
[37] The MUA submits that, considered in the context of the agreement where FSEs are required to acquit an annual total of 1820 hours (inclusive of annual leave), and may be rostered for work on public holidays, Clause 30.1(b) provides a benefit attached to public holidays; namely, the entitlement to payment as if at work for a day off work.
[38] It is important to appreciate that the FSEs under the Port Adelaide EA are in effect paid an annualised salary. Since at least 2002 the relevant industrial instruments have provided that permanent operation employees are required to work 1645 annual accumulated hours in each 12 month period. Under the 2002 and 2005 agreements, an employee who did not work on a public holiday (or a CPD) would not have any hours credited to their annual accumulated hours. Qube Ports Pty Ltd (Qube, the respondent) emphasise that while in the past CPDs typically coincided with public holidays:
‘it is clear from the evidence at first instance that they were treated as very different things. The expectation was that you would work public holidays. That wasn’t the expectation in respect of closed port days and that was a clear difference between the two categories of days. In fact, in respect of closed port days you were released from the expectation that you would work and, in fact, you wouldn’t be required to work unless you had a necessary skill shortage in relation to FSEs.’ 7
[39] Qube submits that in the past what has occurred has been that certain days, that have been agreed to be CPDs, have also been public holidays in their own right - but CPDs are not a subset of public holidays.
[40] In 2008 the MUA made a claim on behalf of FSEs to have seven hours credited towards the annual accumulated hours if they were not required to work on a public holiday. This was agreed to by Qube and a clause was inserted into the 2008 agreement which became clause 30.1 (b) in the Port of Adelaide EA. The evidence before the Commissioner from both the respondent’s and the appellant’s witnesses was that the words ‘including closed port days’ was designed to address the scenario of closed port days that were also public holidays. Without the inclusion of those words, the MUA was concerned that seven hours would not be added to the annual accumulated hours on closed port days that fell on a public holiday. 8
[41] We consider that the Commissioner correctly considered clause 30 as a whole and in its context. The construction he adopted was consistent both with the history and context of the provision. We find that he was correct to find that the inclusion of the phrase ‘including CPDs’ was to confirm that the provision would apply to CPDs that were also public holidays. Conversely it has no application to CPDs that are not public holidays. Accordingly we dismiss the second ground of appeal. Thus we find no error in the Commissioner’s conclusion that FSEs who did not work on 16 March 2014 are not entitled to have hours credited for that day.
[42] Finally, we turn to the proper construction of the term ‘available’ in clause 30.1 (b). The appellant contends that the term ‘available ‘should have been interpreted to mean: both not actually working and not unavailable for work by reason of being on a form of approved leave.
[43] Any paid leave forms part of the hours requirement: if an employee under the Port Adelaide EA is on a form of paid leave, they are nonetheless entitled to be credited with seven hours towards their accrued annual hours total. The appellant contends that the 10 days of public holidays (whether CPDs or not) must be included within the 1645 hours that are to be ‘worked’.
[44] The appellant noted - correctly - that the only evidence of the purpose behind the inclusion of the words “if available to work” was from the respondent’s witnesses, and was directed towards what the respondent subjectively wanted to achieve. As described by them, the words were intended to require employees to make themselves available in order for clause 30.1(b) to operate. That subjective intention of the Respondent was, essentially, the only factor consistent with the conclusion ultimately accepted by the Commissioner: that appears to have been “the purpose” contemplated by the Commissioner. 9
[45] The words “is available to work” must be considered objectively, and in the context of the agreement as a whole. Clause 30.1(b) applies to all public holidays, not merely those that are also CPDs. The conclusion that positive steps are required in order to be considered ‘available’, was inconsistent with the common position otherwise adopted by the parties, and accepted by the Commissioner: public holidays (other than Closed Port Days) are treated as normal working days. On the construction adopted by the Commissioner, employees will not be credited with the accrued hours for the public holiday, unless they actually work or take steps to positively confirm that they are available to work. There is nothing in the agreement that provides for such a process for public holidays.
[46] Under the terms of the Port of Adelaide EA there is a general presumption that FSEs are available to work. Under the terms of clause 4.1.4 they ‘shall be available for totally irregular allocation in accordance with the notification procedures of this Agreement.’ However under clause 9.1.2 these employees may make themselves unavailable for work on up to 42 days within a 12 month period.
[47] FSEs can be required to work on any day other than when they are on approved leave or on approved time off under clause 9.1.2. The most natural reading is that an FSE is ‘available to work’ at any other time. We do not see anything in the context or purpose of the clause to give it any other reading. Accordingly, we consider that the Commissioner was in error in finding that the term ‘available to work’ in clause 30.1(b) requires the employee to volunteer or otherwise confirm their availability to work.
Conclusion
[48] The issues raised in the appeal have implications for how one construes a number of other enterprise agreements between the parties. Accordingly we grant permission to appeal. We have found that the Decision was correct insofar as it found that clause 30.1(b) applies only to CPDs that are also public holidays.
[49] However we find the Decision was in error insofar as it found that the words ‘is available to work’ in clause 30.1(b) mean that the employees in question must volunteer and/or otherwise confirm their availability to work on the day in question. We uphold that part of the appeal. We find that FSEs are ‘available to work’ as long as they are not at work, and are not unavailable to work by reason of being on a form of approved leave or approved time off in accordance with clause 9.1.2 of the agreement.
SENIOR DEPUTY PRESIDENT
Appearances:
L Doust Counsel with A Neal for the Maritime Union of Australia
S Millen Solicitorwith B Milne Solicitor for Qube Ports Pty Ltd
Hearing details:
2015
Sydney
23 April
1 [2015] FWC 912
2 [2014] FWCB 7447
3 LexisNexis, Halsbury’s Laws of Australia (at 7 February 2012) 140 Deeds and Other Instruments, ‘Interpretation of Deeds and Other Instruments Under Hand [140-530]’
4 [2010] FWAFB 5343 at [27]
5 ASU & CPSU v Australian Taxation Office [2013] FWCFB 4752 at [13]; Pawel v Australian Industrial Relations Commission (1999) 97 IR 392 at [14] to [16]
6 Coal & Allied Operations Pty Ltd v Australian industrial Relations Commission (2000) 203 CLR 194 at [17]
7 PN288
8 PN152, 155
9 Decision at [89]
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