Maritime Union of Australia v Qube Ports Pty Ltd

[2015] FWC 912

[2015] FWC 912 [Note: An appeal pursuant to s.604 (C2015/2176) was lodged against this decision - refer to Full Bench decision dated 13 May 2015 [[2015] FWCFB 3164] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Maritime Union of Australia
v
Qube Ports Pty Ltd
(C2014/730)

QUBE PORTS PTY LTD AND THE MARITIME UNION OF AUSTRALIA ENTERPRISE AGREEMENT 2011 (THE PORT OF ADELAIDE)

[AE898476]

Stevedoring industry
COMMISSIONER HAMPTON	ADELAIDE, 27 FEBRUARY 2015

Dispute concerning public holidays and procedures for closed port days - whether employees entitled to be credited hours for CPDs not worked where the day is not a public holiday - approach to construction considered - provision is ambiguous - objective intention determined in context - construction of agreement does not lead to an entitlement for additional crediting of hours - application dismissed.

1. The context for the dispute

[1] This decision deals with the determination of a dispute concerning the proper application of the Qube Ports Pty Ltd and The Maritime Union of Australia Enterprise Agreement 2011 (The Port of Adelaide) (the Port Adelaide EA). In particular, the dispute arises from the application of the provisions of that instrument that deal with public holidays and what are known as “Closed Port Days”.

[2] The Maritime Union of Australia (MUA) has made the application utilising clause 45 Dispute Resolution of the Port Adelaide EA and it is common ground between the parties that this provision, in conjunction with s.739 of the Fair Work Act 2009, gives the Commission the power to arbitrate this dispute. There is one qualification to that position which I will address shortly.

[3] its name suggests, the Port Adelaide EA applies to Qube Ports Pty Ltd (Qube) and its employees undertaking stevedoring and related work at the Port of Adelaide. The MUA is covered by the instrument and represents employees who are subject to the dispute.

[4] The Port Adelaide EA applies to various categories of employees including Full-time Salaried Employees (FSEs), Guaranteed Wage Employees (GWEs), Variable Salaried Employees (VSEs) and supplementary employees. This decision concerns only the entitlements of the FSEs.

2. What the dispute is about

[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.

[12] In their written outline the MUA also raised, and sought findings about, the circumstances of the CPD that fell on Anzac Day, 25 April 2014. Qube opposed the determination of that issue as part of this matter on the basis that such had not been considered under the various stages of the dispute resolution process provided in the Port Adelaide EA.

[13] I do not consider that it is appropriate for the Commission to directly deal with the circumstances of Anzac Day 2014 as part of this decision. The issue that was the subject to the application, and the process required by the agreement’s dispute resolution process, involved the circumstances of 16 March 2014. The circumstances of Anzac Day 2014 are different in that Anzac Day was both a public holiday and a CPD. However, it is necessary in this case to consider the operation of the provisions more broadly as they bear upon the present dispute. In that light, some of the observations made in this decision would assist the parties to advance their discussions in relation to the Anzac Day issue in due course.

3. The relevant provisions of the Port Adelaide EA

[14] The enterprise agreement 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.

[15] Clause 5.5 in Part A provides as follows:

“5.5 In the event of any inconsistency between Part A and Part 8 of this Agreement, Part B will prevail to the extent of the inconsistency.”

[16] The FSEs are engaged on the basis of Annual Accumulated Hours and an annual salary associated with their classification and the accumulated hours. 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.”

[17] Accordingly, the accumulated hours of 1820 operate on a financial year basis and involve the FSE’s working 1645 hours with a period of five weeks annual leave (175 hours). 1

[18] 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, GWEs 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.”

[19] I note that the phrase “available to work” was inserted into clause 30.1(b) of the current Port Adelaide EA for the first time.

[20] 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.”

[21] Despite the heading and the layout of clauses 30 and 31 of the Port Adelaide EA, it is common ground between the parties that (only) clauses 31.1 and 31.2 apply to Christmas and New Year’s Eve. It is 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. 2 This is explained by the history of the provisions and represents a drafting oversight. I have dealt with this matter on the basis of the common understanding of those particular provisions.

[22] Part B contains a procedure for closed port days 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.”

4. The position contended by the MUA

[23] The MUA contend that the inclusion of the words “(including Closed Port Days)” in clause 30.1(b) and (e) means that CPDs are specifically included within the provision so as to be treated as public holidays under the Port Adelaide EA for the purposes of crediting hours. “Including” in that context is to be applied as enlarging the ordinary meaning of the provision. 3

[24] Further, the MUA argue that the heading of clause 30.1 should not be taken to reflect the content and operation of the provision and it points to the agreed application of clause 31 as a further example of the need to adopt that approach.

[25] Clause 30.2(b) of the Port Adelaide EA (and its predecessors) does not require employees to initially decline or volunteer to work and the FSEs could make no response to a request for volunteers without sanction. According to the MUA, this was to be contrasted with the approach to Christmas and New Year’s Eve where the employees could not be compelled to work. Further, the MUA point out that clause 30.1 does not contain the requirement that the FSEs “make themselves available”, and contend that the approach urged by Qube required that term to be read into the provision, which should not be done.

[26] Accordingly, the MUA contends that in these circumstances the FSEs were available to work on 16 March 2014 and were entitled to be credited for the seven hours falling on the CPD when they were not required to work.

[27] The MUA also referred to the previous provisions of the Stevedoring Industry Award 1999 and its inclusion of a picnic day as a prescribed public holiday prior to the removal of that provision in the award modernisation process leading to the Stevedoring Industry Award 2010.

[28] The MUA also contends that its representatives in negotiating the 2011 agreement understood that the change to the third Sunday in March would see the continuation of the crediting of the hours that had taken place when that CPD was scheduled for Adelaide Cup Day. That is, the change of agreed date was undertaken on the basis that the new date would, in effect, continue to be treated as a public holiday, and the CPD crediting of hours not worked, would also continue. The MUA contend that Qube agreed that the employees would be “paid” for the picnic day and that this must mean that they were to be credited for the hours not worked.

[29] In that respect, the MUA contends that the approach urged upon the Commission by Qube leads to a reduction in benefits that would not have been, and was not, agreed by its members.

[30] Further, the MUA relies upon the crediting of seven hours to employees in relation to the CPD on 17 March 2013 that occurred as part of the resolution of an earlier dispute.

[31] The MUA sought orders to the effect that Qube had breached the terms of the Port Adelaide EA and that each of the relevant employees should be credited seven hours for the CPD on 16 March 2014 and be paid seven hours of overtime for the work ultimately performed beyond their required annual hours.

[32] The MUA led evidence from:

● Mr Jamie Newlyn - South Australian Branch Secretary of the MUA, who had an involvement in the negotiation of relevant agreements both at a national and local level;
● Mr Mark Scutella, FSE with Qube and MUA delegate during negotiations for the 2011 Enterprise Agreement;
● Mr Robert Russo, FSE with Qube; and
● Mr Mark Egel, FSE with Qube.

5. The position contended by Qube

[33] In essence, Qube contends that clause 30.1 does not apply to CPDs that are not nominated public holidays. That is, the plain and ordinary meaning of the provision is that the clause only applies to public holidays and CPDs that are also public holidays. The reference to “(including closed port days)” merely confirms that the provision operates on that basis.

[34] Further, Qube contends that even if clause 30.1 is taken to be relevant to 16 March 2014, the FSEs were not available to work because they had not nominated to do so in accordance with clause 4.8 of Part B. As such, the FSEs were not entitled to be credited for the hours normally worked on that day.

[35] Qube argues that clause 4.8 of Part B establishes a procedure that has to be followed in the event of a CPD and the purpose of calling for volunteers was to ascertain whether the employees were available. That is, a positive indication of availability was required in order for the FSEs to be considered as being available for the purposes of clause 30.1(b) and to be accredited hours if they do not work.

[36] Qube’s approach was said to be consistent with the negotiations at the time of the 2011 agreement and the inclusion of the words “is available to work” in clause 30.1(b) of Part A of the Port Adelaide EA.

[37] Qube also contends that the (agreed) application of clause 31.3 to CPDs does not have any implications for the present dispute. That is, there is a distinction between CPDs and Public Holidays for the purposes of pay and other entitlements.

[38] In relation to the crediting of hours for the CPD in March 2013, Qube contends that the Commission was not permitted to have regard to subsequent conduct in ascertaining the objective intention of the parties. It also argued that this occurred as part of the settlement of a dispute and was not a concession as to the meaning of the agreement.

[39] Qube led evidence from two senior managers, both of whom had been involved in the negotiation of relevant agreements and the operations at the Port of Adelaide, namely:

● Mr Steven Egel, State Manager - South Australia and Portland; and
● Mr Michael Sousa, a Director of Qube.

6. Observations on the evidence

[40] A reasonable proportion of the evidence concerned the subjective views of the witnesses as to how the various provisions of the enterprise agreement were intended to operate. For reasons outlined below, where such evidence does not reveal a common intention or set some of the relevant context, I have placed no weight upon those elements.

[41] Mr Scutella’s evidence was criticised by Qube, based largely upon testimony associated with some notes of the negotiations concerning Part B of the Port Adelaide EA that were appended to his statement and were apparently subsequently mislaid or taken from the locker in which they were stored. I accept that Mr Scutella was confused and unconvincing about when the notes of the negotiations went missing and the associated circumstances. This does lead me to be cautious about the associated evidence particularly in the absence of agreed minutes of the negotiations that confirm the detail of the relevant discussions. I do not however discount Mr Scutella’s evidence completely as sought by Qube. I also observe that the hand written notes (as opposed to the more detailed exchange set out in the witness statement) indicate a discussion to the effect that the picnic day would be moved from Adelaide Cup Day and that another day for a CPD would be used and paid for. That and some related elements are not in dispute. 4 I will return to the detail of those discussions in due course.

[42] Subject to caveats mentioned above, I find that each of the witnesses gave their evidence as to the facts in a genuine fashion and did not seek to mislead the Commission.

[43] There is evidence that Mr Scutella, and potentially other employees, were credited hours for the March 2013 CPD in similar circumstances to the events of 2014. This took place in the context of the resolution of an industrial dispute and there is evidence that this did not involve a formal concession of liability by Qube. 5 As a result, I place no weight on that event for the purposes of ascertaining the proper application of the Port Adelaide EA.

7. The approach to be taken to the construction of an enterprise agreement

[44] Recently a Full Bench of the Commission outlined the approach that should be adopted in considering the construction and meaning of an enterprise agreement. In The Australasian Meat Industry Employees Union v Golden Cockeral Pty Limited 6 the Full Bench summarised the position in the following terms:

“[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.” 7

[45] I have applied this approach in determining this dispute.

[46] In Geo A Bond & Co Ltd (In Liq) v McKenzie, 8 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."

[47] These observations are also apt in the present matter and consistent with the approach taken in Golden Cockeral.

[48] The following summary of the approach as provided by the authors of Halsbury's Laws of Australia is also apposite to the present task:

“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.” 9 (References omitted)

8. The proper application of the Port Adelaide EA to the dispute

8.1 The surrounding circumstances

[49] Both parties accept that the wording of the instrument is less than ideal. The terms of the Port Adelaide EA are susceptible to more than one meaning, particularly in terms of the operation of clause 30.1(b), if applicable. Evidence of the surrounding circumstances is relevant as an aide in that regard and more generally. However, it is 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, which is being sought. 10

[50] The relevant clauses of the Port Adelaide EA were negotiated in the context of previous industry awards and collective agreements and the negotiations for the agreement took the form of changes that were to be made to the then extant agreement.

[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. 11

[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. 12 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.13

[55] Prior to the 2008 EA, FSEs that did not work on a public holiday were not credited with any hours on that day. 14

[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. 15

[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.

[58] In reality, 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. This is explained in part by the fact that the change to clause 30 of Part A occurred as part of the national negotiations and the change to Part B occurred as part of the local negotiations.

[59] I find that Mr Steve Egel considered that under the then existing picnic day arrangements the employees were effectively exhausting an entitlement to have a day off as a CPD (the Adelaide Cup Day holiday) which was already a public holiday and that utilising another day would, in effect, provide a further day off. He also conceived that Qube could more easily utilise employees on the Adelaide Cup day holiday without going through the CPD procedure. Other than the notion of a further day off, the rationale was not communicated to the MUA at that time.

[60] Mr Scutella genuinely understood that the notion of being paid in the same way meant that nothing would change with the proposed move. This was in general terms confirmed by Mr Steven Egel. However, I am not persuaded that the detail of what that meant for the potential crediting of hours was discussed between the parties.

[61] I will return to the implications of these events shortly.

[62] The evidence reveals that rarely, if ever, have the FSEs been required to work on CPDs. 16 This means that in terms of having a picnic day that the majority of employees could attend with their families, it was important that the picnic day be a CPD and not merely a (normal) public holiday. It is also clear that the MUA considered that having a Sunday for the picnic day, rather than a public holiday, was more likely to facilitate the families attending.

8.2 Does clause 30.1 only apply to a CPD that is not a public holiday?

[63] This question requires consideration of clause 30 as a whole, clause 30.1, and the implications of the agreement more generally.

[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 (ie other than CPDs), however, clause 30.1 makes specific reference to CPDs in clauses (b) and (e).

[65] I observe that when considered in the context of previous practice where all of the CPDs were in fact also public holidays, some of this uncertainty disappears and this might well explain why the parties did not sufficiently turn their mind to the implications of the change made in the Port of Adelaide. However, this does not of itself directly assist with the proper application of the provisions.

[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. I also note that special provisions operate for Anzac Day Dawn Services however I need not canvass them further for present purposes. 17

[67] It is appropriate to initially consider the context set by the provisions whilst leaving aside the immediate issues in dispute. 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. 18

[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.

[77] Further, the CPD provisions are certainly capable of being read in their own light and there is no necessity to apply the provisions of clause 30.1 to CPDs that are not public holidays. The provisions applicable to the CPDs in clause 30.2 and clause 31 can also be applied to all CPDs without the need for clause 30.1(b) and (e) to include CPDs that are not public holidays.

[78] In addition, clause 4.8 in Part B refers only to clause 30.2 of Part A. Whilst this is not in itself conclusive, there is also nothing in that provision that suggests or requires that clause 30.1(b) is to be applied to all CPDs, including those that are not a public holiday.

[79] What then to make of the various statements made during the negotiations of the Part B provisions?

[80] As outlined earlier, Mr Steven Egel directly participated in the Part B negotiations on behalf of Qube. It is apparent that he was (and is) of the understanding that under the new arrangements where the CPD was not a public holiday, an FSE who indicated that they were available to work by nominating to work on the CPD, would be credited with 7 hours where there were ultimately not required to work. 19 This is more consistent with the view that the provisions of clause 30.1(b) applied in those circumstances. This is not the position advanced by Qube, but more relevantly, it is not in my view the natural meaning of the provisions when read as a whole and in context.

[81] The evidence reveals that the details of Mr Steven Egel’s understanding were not discussed during the Part B negotiations, however the indication given to Mr Scutella that the normal (public holiday) arrangements would apply is consistent with this understanding. The implications of having a CPD on a non-public holiday were not discussed at all during the Part A negotiations and there is no evidence of the issue being dealt with at any previous negotiations.

[82] As a result, 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 Cockeral.

[83] In any event, in determining this matter, it is the common intention viewed objectively that is being sought, not the subjective views and expectations of the parties. 20

[84] For reasons set out above, I consider that clause 30.1(b) is objectively intended by the Port Adelaide EA to apply only to the CPDs that are also public holidays.

8.3 The application of clause 30.1(b) to 16 March 2014

[85] Given my finding in relation to the scope of clause 30.1(b), it is not necessary to determine this aspect of the matter. The issue was however fully argued and some observations about the operation of clause 30.1(b) are appropriate.

[86] If, contrary to the above view, clause 30.1 applies to a CPD that is not a public holiday (such as 16 March 2014), the issue becomes whether the relevant employees were available for present purposes. The FSEs were invited to volunteer for the work on the day in question and did not respond. They were ultimately not required to work.

[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.

[89] The MUA contend that as all of the FSEs can ultimately be compelled to attend, they are all “available” for present purposes. In my view, this does not sufficiently reflect the reality in that not all employees can be compelled to work. Only where there is a skill shortage can those employees who have not volunteered be required to work. In any event, the words “if available to work” were inserted into clause 30.1(b) for a purpose and would be rendered virtually obsolete if the MUA’s approach was adopted in connection with a CPD. This is particularly so given that the amendment was made against the background of the FSE’s not generally being required to work on a CPD in the Port of Adelaide.

[90] This means that something, beyond the fact that the employees may (depending upon skill deficiencies) ultimately be required to work on the CPD, is contemplated in clause 30.1(b). Given the overall import of the relevant provisions I consider that in order to be considered to be relevantly available on the CPD, the employees must volunteer and/or otherwise confirm their availability to work on the day in question.

[91] I have considered the impact of the phrase “Nothing prevents an employee from initially declining or volunteering to work on Closed Port Days” as set out in clause 30.2(b). This does not mean that the employees must be credited hours even if they do not volunteer. Its meaning is clear from the plain and ordinary application of the full clause when read in context. That is, the employees do not need to (initially) decline to work or volunteer and except where they may be required due to skill shortages, they will not be required to work on a CPD. Further, where the FSEs volunteer but are not required to work, they will be credited the seven hours for that day.

[92] I observe that both parties have argued their positions, in part, on what may be described as being the probability that the change in the March CPD would have been agreed and the impact of that upon what the agreement should be taken to mean.

[93] These considerations cannot be decisive given the required approach to the determination of a dispute of this kind outlined earlier in this decision. I would accept the history surrounding their positions forms part of the context and I have considered such in determining this matter.

[94] The MUA contend that if they were aware that they were not to be credited for the day (if not worked) they would not have agreed to the change. This may well be so but does not take account of underlying difference of view as to operation of those arrangements more generally. Further, the MUA in the Port of Adelaide was keen for a picnic day to be conducted on a Sunday when families would be more readily available and the change of March CPD arrangements did not reduce the number of public holidays and means that most, if not all, of the FSE’s (and their families) can attend what has become the picnic day.

[95] It is the case that those FSEs that do not work on that particular CPD will be not be credited the seven hours on that day and will need to work those hours somewhere through the balance of the financial year. However, this of itself does not mean that the application of the enterprise agreement as determined was not objectively intended to operate in that manner. The Commission cannot, in effect, rewrite the Port Adelaide EA to change its operation on that basis. 21

9. Conclusions

[96] I consider that clause 30.1(b) applies only to CPDs that are also public holidays. The parties agree that 16 March 2014 was not a public holiday.

[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.

[98] If I am wrong about the scope of clause 30.1(b) and were to assume that it applies to a CPD that is not a public holiday, my view is that that provision and the terms of 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.

[99] On the alternative approach, as none of the FSEs were available, within the meaning of clause 30.1(b), to work on the CPD in question, they would not be entitled to be credited for the seven hours or to have additional payments made because of their total hours in the financial year concerned.

[100] On the basis of my findings, there are no grounds to make the orders sought by the MUA.

[101] I would observe that the provisions of the Port Adelaide EA are poorly drafted and the result that I have determined may leave open some related questions as to the operation of the instrument. I would encourage the parties to consider a comprehensive re-write of the provisions as part of the next round of negotiations or as part of a variation to the existing instrument. In so doing, a more comprehensive and creative consideration of the interests of the employees, Qube and their clients, may lead to a different and mutually beneficial approach to the CPD arrangements. The services of the Commission would be available given the appropriate application at that time.

Appearances:

M Burns of W. G. McNally Jones Staff Lawyers, with permission, with J Newlyn for The Maritime Union of Australia.

S Millen with B Milne of Herbert Smith Freehills, with permission, for Qube Ports Pty Ltd.

Hearing details:

2014

Adelaide

December 8

Final written submissions:

2014

February 13.

<Price code C, AE898476  PR560819>

 1   Clause 32.2 in Pat A of the agreement.

 2   Witten submission of both parties, 13 February 2015.

 3   Pearce and Geddes Statutory Interpretation in Australia at [6.34].

 4   See the evidence of Steven Egel - PN633 to PN638.

 5   Sousa at 43 of exhibit Q2.

 6   [2014] FWCFB 7447.

 7   Reference to the AI Act is to the Acts Interpretation Act 1901 (Cth).

 8 [1929] AR (NSW) 498 at 503 See also City of Wanneroo v Holmes (1989) 30 IR 362 (at 378-379) and Amcor Limited v CFMEU (2005) 222 CLR 241 at [2].

 9   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].

 10   See also Codeflda Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352.

 11   S.115(1) of the Act.

 12   Clause 28.1.3.

 13   Sousa at 40 of exhibit Q2 and Newlyn at PN154 and PN155.

 14   The evidence of Sousa and Newlyn.

 15   MS-3 attached to exhibit Q2.

 16   Steven Egel.

 17   Clause 4.8.2.

 18   Clause 32.10 provides that where a public holiday, however described, falls during a period of annual leave, an extra day’s leave is added to the period of leave. There an exception to that approach that is not presently relevant.

 19   Statement of Steven Egel at 21 and transcript PN534 and PN654.

 20   Golden Cockeral at [41] point 9.

 21   Kucks v CSR Ltd (1996) 66 IR 182 at 184.

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