Mr David John McLeod v Forest Coach Lines Pty Ltd T/A Forest Coach Lines
[2022] FWC 469
| [2022] FWC 469 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Mr David John McLeod
v
Forest Coach Lines Pty Ltd T/A Forest Coach Lines
(C2021/4571)
| COMMISSIONER P RYAN | SYDNEY, 2 MARCH 2022 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] - Dispute about a matter arising under the enterprise agreement – dispute determined
Introduction
This decision concerns an application by Mr David McLeod (Mr McLeod Applicant) pursuant to s.739 of the Fair Work Act 2009 (FW Act) in respect of a dispute with Forest Coach Lines Pty Ltd (Respondent) (Application).
The Application was made in accordance with clause 23 of the Forest Coach Lines Passenger Vehicle Drivers Enterprise Agreement 2019 (Enterprise Agreement) which came into operation from 27 December 2019[1] and has a nominal expiry date of 30 June 2022.[2]
Clause 23 of the Enterprise Agreement contains a dispute resolution procedure and, following compliance with the steps set out in clauses 23(a)–(e), confers jurisdiction on the Commission to resolve disputes by conciliation, and if conciliation is not successful, by arbitration.
The Application referred to a range of matters in dispute and was subject to conferences on 17 August 2021, 7 September 2021, 21 September 2021 and 12 October 2021.
Following the conferences referred to above, there was one matter which the parties were unable to resolve through conciliation – whether an employee who is otherwise classified as a Trainee and entitled to be paid the Provisional Rate, is entitled to be paid the (higher) Charter Rate when engaged to do charter work.
This matter proceeded to arbitration. There is no dispute between the parties as to jurisdiction, and I am satisfied on the materials before the Commission that I have jurisdiction to arbitrate the dispute.
The parties agreed on the following questions to be determined by arbitration:
(a) Are employees who are paid provisional rates entitled to be paid charter rates in accordance with clause 15 (a) when engaged to do charter work?
(b) If the answer to question (a) is yes, does clause 16 mixed functions apply to charter work which exceeds two hours in a day so that the employee is paid charter rates for the whole day’s work?
The matter was listed for arbitration via Microsoft Teams on 8 December 2021.
I exercised my discretion to grant permission to the Respondent to be represented by a lawyer, as I was satisfied as to the matters set out in s.596 (2) (a) of the FW Act. The Applicant was self-represented. The Respondent was represented by Mr B Avallone.
Witness statements were tendered from the following persons, who also gave evidence at the hearing:
·The Applicant (Exhibits A1 and A2);
·Mr Mark Deayton, the Respondent’s general manager of people and culture (Exhibit R1).
Background and Facts
The background and factual matters relevant to the determination of the Application are predominantly undisputed and can be summarised as follows.
The Respondent operates a bus transportation business which provides transportation pursuant to service contracts with the New South Wales Government, as well as charter work for private clients.[3]
To be employed as a qualified bus driver for the Respondent, the Respondent requires the following accreditations, experience and qualifications to be obtained[4]:
· A Heavy Vehicle (Medium Rigid (MR) or higher level) Licence;
· A Transport for NSW Driver Authority, including Working with Children Check;
· At least 18 month’s bus driving experience after the driver has been assessed by the Respondent as capable of driving unaccompanied (or 2 years if the experience was with another employer); and
· A Certificate III in Driving operations.
If an Employee has not obtained the required accreditations, experience or qualifications, the Employee will be designated as a provisional driver for at least 18 months after they are able to drive unaccompanied, or until the Employee has obtained their Certificate III in Driving Operations, whichever occurs later.[5]
The Applicant was employed by the Respondent on 4 November 2019 as a trainee bus driver.[6]
The Applicant’s contract of employment stated that he was employed under the terms and conditions of the Forest Coach Lines Passenger Vehicle Drivers Enterprise Agreement 2016, which was the antecedent agreement to the Enterprise Agreement.[7]
From the commencement of his employment until 6 January 2020, the date he was able to drive a bus unaccompanied, the Applicant was paid in accordance with the Training Rate in Table 3 of Schedule 1 to the Enterprise Agreement.[8]
From 6 January 2020 until 20 September 2021, the Applicant was paid in accordance with the Provisional Rate in Table 3 of Schedule 1 to the Enterprise Agreement, while he was completing a Certificate III in Driving Operations. [9]
From 1 February 2020, the Applicant was assigned private school runs for Newington College, which operated between St Ives and Newington College located in Stanmore.[10]
On 20 September 2021, the Applicant attained a Certificate III in Driving Operations and from that date, was paid in accordance with the wage rates in Table 1 of Schedule 1 to the Enterprise Agreement.[11]
The Dispute
As set out above, the dispute in effect is whether an employee who is otherwise classified as a Trainee and entitled to be paid the Provisional Rate, is entitled to be paid the (higher) Charter Rate when engaged to do charter work.
And if so, if the charter work exceeds 2 hours on any day, whether the employee is entitled to be paid the Charter Rate for the whole day’s work in accordance with the mixed functions provision (clause 16) in the Enterprise Agreement.
In the context of the Applicant, the dispute relates to charter work the Applicant performed in the period prior to 20 September 2021.
As the background and factual matters are largely undisputed, the determination of this matter will turn on the interpretation of the Enterprise Agreement.
Before turning to the relevant provisions of the Enterprise Agreement, it is important to note that the parties are also in dispute about the extent to which the Applicant performed charter work prior to 20 September 2021 and whether the private school runs for Newington College constitute charter work. However, this aspect falls outside the scope of the Application before the Commission, and therefore cannot be determined as part of this matter.[12]
Relevant Provisions of the Enterprise Agreement
Clause 2 of the Enterprise Agreement states:
2. PARTIES BOUND BYTHE ENTERPRISE AGREEMENT
The parties bound by this EA are:
a) Forest Coach Lines Pty Ltd of 335 Mona Vale Road, Terrey Hills, NSW 2084 (Employer).
b) Persons employed wholly or principally as Passenger Vehicle Drivers (Employees).
c) An employee organisation that has been granted an Order by Fair Work Commission pursuant to section 183 of the Fair Work Act 2009.
Clause 6 of the Enterprise Agreement adopts various definitions for the purpose of the Enterprise Agreement. The following definitions are relevant:
Bus Service Drivers Shall be those Employees who are not subject to the Training Rate, or the Provisional Rate and who are paid in accordance with Schedule 1, Monetary Rates, Table 1-Wage Rates (Passenger Vehicle Driver).
Charter Rate Applies to work undertaken by Employees, which shall include day charters, overnight and long-distance tours, railway work, and special events and work undertaken outside of the Bus Service Contract. The rates of pay are set out in Schedule 1, Monetary Rates, Table 2 -Wage Rates (Charter).
Employees Shall mean those persons who work under the direction of the Employer at the Terrey Hills depot as Passenger Vehicle Drivers and receive payment within the terms of this EA and who are parties thereto.
Engagement The rostered daily shift for a passenger transport driver and includes a Broken Shift.
Passenger Vehicle Driver Includes drivers of Passenger Vehicles, with skills engaged in driving passengers on scheduled route and school services or between fixed terminals as part of a Bus Service Contract. It excludes all employees who are employed solely for the purposes of driving Passenger Vehicles for charter or coach work.
Provisional Rate Applies to an Employee who is capable of driving unaccompanied and who has not been employed by the Employer for more than eighteen (18) months from the time that the Employee can drive unaccompanied. The Provisional Rate also applies to a driver undertaking a Traineeship for a period of eighteen (18) months from the time that they are able to drive unaccompanied. The Provisional Rate shall not apply to an Employee who has previously completed at least two years services with an accredited bus operator/ operators and who is not undertaking a Traineeship.
Traineeships Provided by the Department of Education and Training, or equivalent agency, in which the employer and employee agree to a fixed period of training on specific employment terms.
Training Rate Applies to an Employee who has commenced employment with the Employer and is undergoing training at the direction of and under the supervision of the Employer and does not have sufficient skills to drive a Passenger Vehicle unaccompanied. The Training Rate is set out in Schedule 1, Monetary Rates, Table 3, Wage Rates (Provisional Rate).
Clauses 8 (a) and (f) of the Enterprise Agreement state:
8. RATES OF PAY & ALLOWANCES
a) The wages and allowances, which shall apply to the relevant Employees as defined in Clause 6 (Definitions) according to the work undertaken, are set out in Monetary Rates, Tables 1 to 3 and Table 4, (Other Rates and Allowances) and no other wages or allowances shall apply. Employees will receive back pay for the period from 1 July 2019 to when the EA is approved to reflect this increase.
…
f) Traineeships
(i)Employees who enter into Traineeships will, during the period of their Traineeship, be required to be employed, either as permanent part time Employees on fixed hours, in accordance with the Traineeship conditions or permanent full time Employees. In the event that an Employee is a permanent part time Employee the Employer will have the right to require the Employee to revert back to casual employment at the completion of the Traineeship.
(ii)The following further provision will apply to Traineeships - a permanent full time Employee or permanent part time Employee shall be paid at the rate of pay set out in Schedule 1, Monetary Rates, Table 3 -Wage Rates (Provisional Rate).
Clause 15 of the Enterprise Agreement states:
15. CHARTER
a) Notwithstanding any other clause within this EA, Employees engaged to do charter work will be paid for all hours worked the wages and allowances as set out in Monetary Rates Table 2, Wages (Charter) and Table 4 (Other Rates and Allowances).
b)Subject to the Mixed Functions clause (Clause 16), the following further provisions set out in subclauses (c) to (i) apply to charter work.
c) An Employee who is engaged on a day charter, in which the Employee will return to the depot, may be engaged to work a Broken Shift divided into two working periods.
d)In circumstances where an Employee during a day charter does not return to the depot for the day the Employee shall be paid for all hours worked, including waiting time or such maximum hours as agreed to by the Employer or Employee prior to the commencement of the charter.
e) An Employee who is engaged to work on a charter in which the Employee does not return to the depot overnight will, subject to The Award (clause 9 (d), 8 hours minimum), whilst away overnight from the depot, be paid for all hours actually worked, excluding waiting time.
f)In the circumstances of an extended tour, being of duration of three or more days the maximum payment for the Employee will be for ten (10) hours, not including any meal break, at 100% of the Prescribed Rate of pay.
g) Work shall be deemed to commence when the Employee enters the depot, garage or arranged picking up place at the appointed time to commence his or her shift, and shall finish on his or her leaving such depot, garage or picking up place at the completion of such shift.
h) Employees may be required to work at any location or place of business operated by the Employer. Whilst Employees may be engaged initially to work at one location, during their employment they may be directed on a temporary or permanent basis to work at another location and will be given two (2) days' notice of any requirement to change work location.
i) In circumstances where an Employee agrees to undertake a charter on a non-rostered day and the charter is cancelled less than 1 hours prior to the commencement of the charter the employee shall be entitled to be paid for 50% of the non-commenced charter.
Clause 16 of the Enterprise Agreement states:
16. MIXED FUNCTIONS
a) An Employee required by the Employer to work for less than two hours a day on work carrying a higher rate of pay shall be paid at the higher rate for the actual time so worked and when required to work for more than two hours a day on such work he/she shall be paid as for a whole day's work at the higher rate which shall include payment of all penalties and loadings.
b) This clause shall not apply to actual periods of one hour or less or to interchange of work arranged between Employees to meet their personal convenience.
Applicant’s Submissions
In summary, the Applicant submitted that clauses 15 and 16 of the Enterprise Agreement apply to ‘provisional drivers’ when engaged to carry out charter work, and that the words “Notwithstanding any other clause within this EA” at the beginning of clause 15, clearly encompass the application of the rates of pay in Table 2 of Schedule 1 to any Employee who is engaged in charter work.[13]
Respondent’s Submissions
The Respondent submitted that neither clause 15 or clause 16 overrides the effect of clause 8(f)(ii) of the Enterprise Agreement.[14]
The Respondent submitted the task for the Commission is to identify the objective meaning of the language of the relevant clauses, understood by their textual and industrial context[15], and that the starting point for interpretation of an enterprise agreement is the “ordinary meaning of the words, read as whole and in context”, citing the principles outlined in Workpac Pty Ltd v Skene[16] (Skene).
The Respondent submitted that narrow or pedantic approaches are misplaced and that it is justifiable to read an agreement to give effect to its evident purposes having regard to the context, despite inconsistencies or infelicities.[17]
The Respondent submitted industrial context and the intention or purpose of the makers of the instrument should be paramount, notwithstanding the strict wording of the instrument and taking into account the surrounding circumstances,[18]
The Respondent submitted that at all material times the Applicant was completing a traineeship and the clear and unambiguous meaning of clause 8(f)(ii) of the Enterprise Agreement is that the Applicant was only entitled to be paid the rates of pay in Table 3 (Provisional Rate).[19]
The Respondent submitted that clause 15 was subject to the limitation, modification or qualification in clause 8 (f), and that clause 8(f) should be given effect.[20]
In the alternative, the Respondent submitted the dispute be resolved by the application of the generalia specialibus non derogant principle of interpretation, such that the specific provision in clause 8(f) should be read as prevailing over the general provision in clause 15.[21]
In written submission prior to the hearing, the Respondent submitted that the wording in clause 15(a): “Employees engaged to do charter work” refers to employees specifically hired, contracted or employed to perform charter work, and as the Applicant performed both bus service contract work and charter work, he was not an employee within the meaning of the phrase “Employees engaged to do charter work.” [22] However, during the course of the hearing, counsel for the Respondent conceded that an employee engaged solely to perform charter work was excluded from the coverage of the Enterprise Agreement.
The Respondent submitted that the words “Notwithstanding any other clause within this EA” do not assist in the resolution of the dispute, as clause 8(f) and clause 15(a) are not inconsistent with each other, and that the opening words deal with the interaction between clause 15 and clauses 10, 11, and 12, and “do not deal with the interaction between clauses 8(f) and 15(a) at all.”[23]
In relation to clause 16 of the Enterprise Agreement, and in submissions the Respondent filed prior to the hearing, the Respondent referred to historical provisions dealing with mixed functions and that submitted as the rates of pay in Table 1 and Table 2 were identical, and as the Applicant was entitled to be paid in accordance with Table 3, clause 16 had no work to do.[24]
During the course of the hearing, counsel for the Respondent conceded that if the answer to question (a) is yes, then the answer to question (b) is yes.
Applicant’s Submissions in reply
In reply, the Applicant referred to the principles set out in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd[25] (Berri) and submitted that upon a plain reading of the Enterprise Agreement, clause 15(a) overrides clause 8(f).[26]
The Applicant referred to the definition of Passenger Vehicle Driver in clause 6 of the Enterprise Agreement and that it specifically excludes all employees who are employed solely for the purposes of driving Passenger Vehicles for charter or coach work.[27]
The Applicant submitted that clause 8(a) of the Enterprise Agreement entitles an Employee to be paid according to the work undertaken, and that the definition of Charter Rate applies to charter work undertaken by Employees.[28]
The Applicant submitted that properly construed clauses 8(f)(ii) and 15 are not inconsistent with one another, they deal with different subject matter and that clause 8(f) deals with trainees doing bus service contract work unless overridden by subsequent clauses.[29]
In relation to clause 16, the Applicant submitted that the clause is based on work carrying a higher rate of pay and as the Charter Rate is higher than the Provisional Rate, that Charter Rate will apply to all work on days when more than 2 hours of charter work was completed.[30]
Principles of construction of enterprise agreements
The dispute before the Commission concerns the proper construction of clauses in the Enterprise Agreement.
The principles relevant to the approach that the Commission should take to the construction of enterprise agreements was set out in the decision of a Full Bench of the Commission in Berri as follows:
The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from: (i) the text of the agreement viewed as a whole; (ii) the disputed provision’s place and arrangement in the agreement; (iii) the legislative context under which the agreement was made and in which it operates.
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.
The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10.If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
11.The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12.Evidence of objective background facts will include: (i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement; (ii) notorious facts of which knowledge is to be presumed; and (iii) evidence of matters in common contemplation and constituting a common assumption.
13.The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14.Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
15.In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.
More recently, the Full Court of the Federal Court in Skene succinctly restated the principles as follows:
“The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation “…turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”. The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.”[31]
[references omitted]
I have applied these principles in determining this dispute.
Consideration
I have taken into account all of the evidence and submissions of the parties. The fact that an issue is not mentioned in this decision does not mean that it has not been taken into account.
The matter in dispute is an interpretational contest as to how clauses 8(f)(ii) and 15(a) interrelate with each other.
The effect of clause 8(f)(ii), when read in conjunction with clause 8(f)(i), is that an Employee completing a Traineeship will be paid in accordance with Table 3 of Schedule 1 (Provisional Rate). Whereas clause 15(a) provides that an Employee engaged to do charter work will be paid in accordance with Table 2 of Schedule 1, which provides for higher wage rates than Table 3.
However, clause 15(a) is not a standalone provision dealing the payment of wage rates. Rather, clause 15(a) is part of clause 15 which establishes a scheme of arrangements for Employees engaged to do charter work and modifies the effect of clauses dealing with hours of work, breaks and overtime arrangements that would otherwise apply.
The Respondent contends that clause 8(f)(ii) is a specific provision dealing with the subject matter of Traineeships, whereas clause 15 is a more general provision which is subject to modification by clause 8(f)(ii).
I do not accept that contention, as to do so, ignores the context of the Enterprise Agreement when viewed as a whole, and the place and arrangement of the disputed provisions within it.
In this respect, it is relevant to read the disputed provisions in the context of the coverage and wage rate provisions, along with any applicable defined terms.
The Enterprise Agreement covers persons employed wholly or principally as Passenger Vehicle Drivers (Employees).[32]
Clause 6 of the Enterprise Agreement defines “Employees” as “those persons who work under the direction of the Employer at the Terrey Hills depot as Passenger Vehicle Drivers”.
Passenger Vehicle Driver “includes drivers of Passenger Vehicles, with skills engaged in driving passengers on scheduled route and school services or between fixed terminals as part of a Bus Service Contract. It excludes all employees who are employed solely for the purposes of driving Passenger Vehicles for charter or coach work.”[33] (emphasis added)
It is clear from the coverage clause and the above definitions that the Enterprise Agreement does not cover employees who are employed solely for the purposes of charter or coach work, notwithstanding the Enterprise Agreement contemplates that Passenger Vehicle Drivers may be engaged to do charter work as part of their duties.[34]
The wage rates and allowances which apply to the Employees is set by clause 8(a) of the Enterprise Agreement, according to the work undertaken.
As set out at [12] above, the Respondent operates a bus transportation business which provides transportation pursuant to service contracts with the New South Wales Government, as well as charter work for private clients. The distinction between this work in the Enterprise Agreement is borne out in the definitions of Passenger Vehicle Driver – which applies to scheduled route and school services or between fixed terminals as part of a Bus Service Contract, and Charter Rate – which applies to charter, overnight and long-distance tours, railway work and special events and work undertaken outside of a Bus Service Contract.
The terms ‘Bus Service Contract’ and ‘Bus Service Drivers’ are defined for the purposes of the Enterprise Agreement.[35] It is abundantly clear on a plain reading of those terms (and neither party contended otherwise) that an Employee who is undertaking work pursuant to a Bus Service Contract, will be paid in accordance with Table 1 of Schedule 1, unless that Employee is subject to the Provisional Rate or the Training Rate.
However, where an Employee is undertaking work that falls outside a Bus Service Contract, or work that comprises charter, long-distance tours, special events or railway work, the Charter Rate set out in the Table 2 of Schedule 1 applies. Unlike the definition of Bus Service Driver, and consistent with clause 15(a), the definition of Charter Rate applies to “Employees” and does not exclude those Employees who are subject to the Provisional Rate or Training Rate.
In Skene, the Full Court of the Federal Court of Australia held that “[I]ndustrial agreements (such as enterprise agreements) will commonly differentiate between groups of employees covered by the agreement because some terms and conditions provided for by the agreement will be applicable to some groups but not others or, if applicable to all, may provide that different rates or conditions apply to different groups. In those circumstances, an enterprise agreement must assign the employees covered by it into different categories and provide a definition, or identify some other mechanism, for allocating employees into those categories.”[36] (emphasis added)
In my view, and applying the principles in Berri, it is clear on a plain reading of the Enterprise Agreement that it sets out a mechanism through defined categories for the application of different wage rate tables to Employees relevant to the work undertaken.
That mechanism provides that Employees undertaking work pursuant to a Bus Service Contract to be paid in accordance with Table 1 of Schedule 1, unless the Employee is paid the Provisional Rate or Training Rate.
The mechanism also provides that Employees engaged to do charter work will be paid the Charter Rate and will be subject to the modified arrangements relevant to hours of work, breaks and overtime. In this respect, the Enterprise Agreement does not differentiate between Employees paid pursuant to Table 1 or Table 3 – all Employees are entitled to be paid in accordance with Table 2.
During the course of the hearing, the Respondent submitted in response to a question from the Commission, that an Employee completing a Traineeship engaged to do charter work would have their wage rates determined by clause 8(f)(ii), while their hours of work, breaks and overtime arrangements are determined by clauses 15 (b)-(i). In my view that submission is inconsistent with the principles set out in Berri in that it ‘re-writes’ the Enterprise Agreement by cherry-picking the more favourable provisions to achieve an outcome. I do not accept it.
Generalia specialibus non derogant
In the alternative, the Respondent contends the dispute could be resolved by the application of the generalia specialibus non derogant principle of interpretation, such that the specific provision in clause 8(f) should be read as prevailing over the general provision in clause 15(a).[37]
I do not accept that contention. The presumption that where there is a conflict between general and specific provisions, the specific provision will prevail, is not of general application. It is one that applies only if the provisions are in conflict.[38]
If I am wrong in my conclusion that the meaning of the provisions is clear on a plain reading of the Enterprise Agreement, any application of generalia specialibus non derogant raises the question as to which provision is the general and the specific. On one view, both provisions are specific with regard to their subject matter and to that extent, the utility of the principle would be limited.[39]
However, in my view the totality of the modified arrangements for charter work set out in clause 15 are more specific for that subject matter when read as a whole, than clause 8(f) – a provision which is limited to the matter of wage rates for Employees completing a Traineeship.
Accordingly, if applied, the principle of generalia specialibus non derogant would result in clause 15(a) prevailing over clause 8(f).
Notwithstanding any other clause within this EA
The Respondent’s submission that the words “Notwithstanding any other clause within this EA” do not assist in the resolution of the dispute as clause 8(f) and clause 15(a) are not inconsistent with each other, and that the opening words deal with the interaction between clause 15 and clauses 10, 11, and 12, and “do not deal with the interaction between clauses 8(f) and 15(a) at all”[40] cannot be accepted.
Where a provision contains a prefatory phrase such as “Notwithstanding any other clause…” the correct approach is to construe the clause without the prefatory phrase, and then if there is inconsistency, the prefatory phrase will determine which provision shall prevail.[41]
Accordingly, if I am wrong in my conclusion that the meaning of the provisions is clear on a plain reading of the Enterprise Agreement, and there is conflict between clauses 8(f) and 15(a), the prefatory phrase in clause 15(a) has the effect that clause 15(a) prevails over clause (8)(f).
Clause 16 Mixed Functions
The mixed function clause is based on work ‘carrying a higher rate of pay’, rather than ‘duties’ being of a higher level, standard or skill. As noted earlier, the Charter Rate applies to charter work and carries higher rates of pay than the Provisional Rate and Training Rate.
It follows that if the answer to question (a) is yes, the answer to question (b) must be yes.
Conclusion
In conclusion, the answer to the agreed questions for arbitration are as follows:
(a) Are employees who are paid provisional rates entitled to be paid charter rates in accordance with clause 15 (a) when engaged to do charter work?
Yes.
(b) If the answer to question (a) is yes, does clause 16 mixed functions apply to charter work which exceeds two hours in a day so that the employee is paid charter rates for the whole day’s work?
Yes.
COMMISSIONER
Appearances:
D McLeod, Applicant.
B Avallone, of counsel for the Respondent.
Hearing details:
2021.
Sydney (via Microsoft Teams video-link):
8 December.
[1] [2019] FWCA 8650 at [7].
[2] Clause 3(b) of the Enterprise Agreement.
[3] Exhibit R1 at [5].
[4] Ibid at [9].
[5] Ibid at [10]-[11].
[6] Exhibit A1 at [2]; Exhibit R1 at [24].
[7] Exhibit A1, Annexure DJM1.
[8] Exhibit R1 at [26].
[9] Ibid.
[10] Exhibit A1 at [8]-[11]; Exhibit R1 at [27], [35].
[11] Exhibit A1 at [58]; Exhibit R1 at [29]-[30].
[12] See s.739(6) of the FW Act.
[13] Applicant’s Outline of Submissions dated 31 October 2021 at [13]-[16].
[14] Respondent’s Outline of Submissions dated 23 November at 1.10.
[15] Ibid at 2.1.
[16] [2018] FCFCA 131 at [197].
[17] Ibid at 2.2.
[18] Ibid at 2.3.
[19] Ibid at 4.1-4.7.
[20] Ibid at 4.8.
[21] Ibid at 4.9-4.4.11.
[22] Ibid at 5.5-5.9.
[23] Ibid at 5.15-5.16.
[24] Ibid at 6.6.
[25] 2017 FWCFB 3005 at [114].
[26] Exhibit A2 at 3.1-3.4.
[27] Ibid at 2.6-2.8.
[28] Ibid at 3.5.
[29] Ibid at 3.22-3.23.
[30] Ibid at 4.1.
[31] Skene at [197].
[32] Enterprise Agreement at clause 2(b).
[33] Ibid at clause 6.
[34] Ibid at clause 6 and clause 15.
[35] Ibid at clause 6.
[36] Skene at [198].
[37] Ibid at 4.9-4.4.11.
Section 1.01 [38] Tsiftelidis v Crown Melbourne Limited[2016] FWCFB 3345 at [11].
[39] The Trust Company (Nominees) Ltd v Banksia Securities Ltd (recs and mgrs apptd) (in liq) VSCA 324 at [46].
[40] Ibid at 5.15-5.16.
Section 1.02 [41] Hadgkiss v Aldin [2006] FCA 1638 at [8]; Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 754 at [12]-[15].
Section 1.03
Section 1.04
Section 1.05
Printed by authority of the Commonwealth Government Printer
<PR738950>
0
4
0