Mr David Stingel v Ambulance Victoria
[2022] FWC 3241
•12 DECEMBER 2022
| [2022] FWC 3241 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Mr David Stingel
v
Ambulance Victoria
(C2022/5923)
| DEPUTY PRESIDENT O'NEILL | MELBOURNE, 12 DECEMBER 2022 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
Mr David Stingel has applied to the Commission to deal with a dispute under section 739 of the Fair Work Act 2009 (Cth) (Act) with Ambulance Victoria. The dispute is brought under the Ambulance Victoria Enterprise Agreement 2020 (the Agreement).
The parties agree that the dispute resolution procedure in the Agreement has been followed and the Commission has the power to arbitrate the dispute.
The matter was dealt with at a hearing on 11 November 2022, and permission was granted to both parties to be legally represented.
The parties agreed that the dispute will be resolved by determining the question:
“Can Ambulance Victoria amend the Applicant’s start/finish times under subclause 43.3 of the Ambulance Victoria Enterprise Agreement 2020 on 28 days’ notice to, and consultation with, the Applicant without first obtaining his agreement to do so under subclause 18.4 of the Agreement?”
I have determined that the answer to the question is No, and these are my reasons.
Factual context
Mr Stingel has been employed since 2016 as a part-time Patient Transport Officer. Throughout his employment he has worked day and afternoon shifts and has not been rostered to work night shifts.
In 2021, Ambulance Victoria decided to transition to a 24-hour operation and proposed to move to two 12-hour shifts. Mr Stingel has not agreed to work night shifts due to his family and personal circumstances. Ambulance Victoria maintains that it is entitled to require him to do so, subject to notice and consultation obligations.
Relevant provisions in the Agreement
Clause 18 is in Part 3 of the Agreement titled ‘Employment Relationship and Duties’. Clause 18 deals with part-time employment and provides:
“18. PART TIME EMPLOYMENT
18.1 An employee may make a request to work part time in accordance with this clause. The Employer will determine the request on the basis of the operational needs of the Employer but will not unreasonably refuse to accommodate a request for part time employment.
18.2 A part-time employee is an employee:
(a) who works less than full-time hours of 38 per week or less than an average of 38 hours per week over an agreed Roster Pattern;
(b) who has a regular pattern of work specifying the hours and days of the week to be worked; and
(c) whose daily commencement and finishing times will be specified.
18.3 The minimum daily engagement for a part time employee is four hours. A lesser period of engagement can be agreed between the Employer and an Employee Representative. The Employee Representative will not unreasonably withhold its agreement.
18.4 A written agreement specifying the hours to be worked each day, days to be worked and commencement and finishing times will be provided on commencement of part-time employment. Any variation to the regular pattern of work must be agreed and recorded in writing.
18.5 A part-time employee is entitled to receive remuneration, leave and other paid entitlements, on a pro rata basis to a full-time employee employed for 38 hours per week for that classification (1/38th), according to the number of hours worked. A part-time employee is not entitled to accrued days off.
18.6 All time worked in excess of the hours specified in accordance with subclause 18.4 above will be paid as overtime in accordance with clause 45 of this Agreement.
18.7 Where a public holiday occurs on a day a part time employee would be required to work under their regular pattern of work but the employee is not required to work, the employee is entitled to a day off without loss of pay.
18.8 Where a public holiday occurs on a day a part time employee is not rostered to work, regardless of whether the employee would ever work on that particular day of the week, the employee is entitled to be paid the public holiday on a pro rata basis by averaging the employee’s ordinary weekly hours worked over the previous six months.
18.9 A part time operational employee may be entitled to leave in lieu of public holiday penalty payments in accordance with the provisions of clause 64.”
Clause 43 is in Part 5 of the Agreement titled ‘Hours of Work, Shift Work, Overtime and Meal Breaks’. Clause 43 is titled ‘Arranging Hours of Work’ and provides:
“43. ARRANGING HOURS OF WORK
43.1The Employer requires flexible work arrangements to meet service and operational requirements. Employees may be required to work other shift patterns or shift rosters. These shifts include shifts of varying lengths up to a maximum of 14 hours, overlapping shifts and shifts with different start and finish times.
43.2The Employer can change a roster on 28 days’ notice to the affected employees or a lesser period by agreement with the employee or in the case of an unforeseen or urgent circumstance.
43.3The Employer can change start and finish times, without agreement subject to 28 days’ notice to the affected employees and consultation so employees have the opportunity to raise issues with their personal and family circumstances.
43.4 The Employer can introduce a roster other than the 10/14 roster without agreement subject to 28 days’ notice to the affected employees and consultation so employees have the opportunity to raise any issues with their personal and family circumstances.
43.5 Where an individual employee has a grievance about whether a proposed change of starting or finishing time, or the introduction of a new roster, is unreasonable having regard to the employee's personal and family circumstances, that employee has access to the procedure in clause 11.
43.6 Employees are required to commence their shift at the starting time for their shift and at the location at which they are rostered to work and are responsible for arranging transport to their rostered branch location.
43.7 Where practicable, the Employer will publish rosters that display an employee’s rostered days and hours on a continuing basis, branch station postings, alteration and leave periods aside.”
In essence, the dispute relates to whether the entitlement in clause 43 to change employees’ start and finish times operates in respect of part-time employees, who under subclause 18.4 are to have any variation to their regular pattern of work being agreed.
Submissions
Mr Stingel submits that under subclause 18.4 of the Agreement, Ambulance Victoria is not able to change his regular pattern of work and require him to work night shifts without his agreement, which he is not prepared to give. He submits that the new roster is a variation to his regular pattern of work and must therefore be agreed and recorded in writing.
Mr Stingel submits that ‘regular pattern of work’ means the ‘hours to be worked each day, days to be worked and commencing and finishing times’ of the employee. This submission is based on the ordinary meaning of the words ‘regular’ and ‘pattern’, read as a phrase and in light of the preceding sentence in subclause 18.4.[1] ‘Regular’ refers to something that is ‘usual, normal, customary’ and ‘pattern’ refers to ‘a regular and intelligible form or sequence discernible in the way in which something happens or is done’, and submits that the use of the words together in the phrase ‘regular pattern of work’ reinforces each word’s meaning.[2]
Ambulance Victoria submits that subclause 43.3 enables it to change the start and finish times of employees, including part-time employees, without their agreement subject to providing 28 days’ notice and consultation so employees have the opportunity to raise any issues about their personal and family circumstances. Employees also have access to the grievance procedure in relation to any disputes about the proposed change.
In relation to the meaning of the phrase ‘regular pattern of work’, Ambulance Victoria submits that it pertains to the specific hours and days of the week to be worked, with specified daily start and finishing times, and centres on the need for predictability of the days and times of a week that a part-time employee works.[3]
Ambulance Victoria makes four main submissions. First, there is no indication in subclause 43.3 that it only operates in relation to full-time employees and doesn’t apply to part-time employees. Second, there is no other direct or contextual indication that subclause 43.3 does not apply to part-time employees. Third, that to construe the provisions in clause 18 as not permitting any variation to the start and finish times of part-time employees without individual agreement could give rise to considerable operational difficulties, and such a construction should not be preferred unless there is a discernible purpose in subclause 43.3 not applying to part-time employment. Fourth, that on its construction, subclause 18.4 still has work to do, in that Ambulance Victoria is not permitted to change a part-time employee’s ‘regular pattern of work’ within a 28-day Roster Cycle. In this case, Ambulance Victoria has only sought to change the start and finish times as they apply to Mr Stingel in any given 24 hours, not the number of hours worked on a weekly basis or the number of days in a week the Applicant works.
Mr Stingel submits that subclause 43.3 cannot override subclause 18.4 in the way argued by Ambulance Victoria for three reasons. First, it contradicts the plain meaning of subclause 18.4 which refers to “any variation” to the regular pattern of work. Second, he submits that it leaves subclause 18.4 with no work to do and would mean that the benefits part-time employees enjoy which enable them to control their working hours would evaporate, and this cannot have been what was intended.
Mr Stingel’s third submission is that Ambulance Victoria’s construction is inconsistent with the industrial context and history of the part-time provisions in the Agreement. He points out that the terms relating to part-time employment in the Agreement are substantially the same as the equivalent terms in the underpinning modern award (and most others), the ancestry of which is found in the 1995 Personal Carer’s Leave Test Case – Stage 2.[4] That industrial history is explained in the Full Bench decision relating to casual and part-time employment as part of the 4 yearly review of modern awards:[5]
“2.2 Part-time employment
[86] Part-time employment is, ostensibly, a simple concept, namely weekly employment for a number of hours of work per week (or per roster cycle) which is less than full-time hours. It is usually conceived as involving all of the benefits of full-time employment paid on a pro-rata basis. Certainly that is the case under the FW Act with respect to NES entitlements and unfair dismissal rights. However modern award part-time clauses typically have certain features which do not apply to full-time employment provisions. These have arisen as a result of the historical rationale for the introduction of part-time employment in awards.
…
[92] A significant expansion of award part-time employment provisions occurred as a result of the 1995 Personal Carer’s Leave Test Case - Stage 2. The AIRC Full Bench made the following finding in that matter:
“It is apparent from the evidence that part-time employees are an integral part of the labour force. Part-time employment is one of the ways in which families reconcile their work and family commitments. The evidence shows an employee preference for part-time work, particularly among women.”
[93] The Full Bench went on to determine that, first, part-time work provisions should, on application, be introduced into awards which did not already have them and, second, that the adequacy and relevance of existing provisions should be reviewed against the characteristics of the particular industry or enterprise covered by the award. The Full Bench determined that 2 matters needed to be taken into account in the development of “fair and equitable” part-time work provisions. The first was that it was necessary to ensure that part-time employees were provided with pro-rata entitlements to the benefits available to full-time employees, including equitable access to training and career path opportunities. The second was:
“Secondly, part-time work needs to be clearly distinguished from casual employment. While the provision of pro rata benefits is one means of providing such a distinction other measures are also needed. In particular part-time work provisions should specify the minimum number of weekly hours to be worked and provide some regularity in the manner in which those hours are worked.
Regularity in relation to hours worked is an important feature of part-time employment. In the absence of such regularity reduced hours of work may not be conducive to reconciling work and family responsibilities. For example, if hours of work are subject to change at short notice it can create problems for organising child care as these arrangements generally require stable hours and predictable timing...”
[94] Part-time employment provisions awarded after the Personal Carer’s Leave Test Case - Stage 2 Decision did not contain express restrictions limiting their operation to persons with family responsibilities, but provisions drafted in accordance with the principles established in that decision tended to be structured in a way which facilitated their utilisation by employees with family responsibilities. The part-time employment provision established for the Hospitality Industry - Accommodation, Hotels, Resorts and Gaming Award 1995 as a result of the Award Simplification Decision became a model clause adopted in many awards. Its features were described in a Full Bench decision issued as part of the award modernisation process conducted pursuant to Part 10A of the WR Act as follows:
“[136] ...The provision characterises a regular part-time employee as an employee who works less than full-time hours of 38 per week, has reasonably predictable hours of work and receives, on a pro rata basis, equivalent pay and conditions to those of full-time employees who do the same kind of work. It requires a written agreement on a regular pattern of work, specifying at least the hours worked each day, which days of the week the employee will work and the actual starting and finishing times each day, with variation in writing being permissible. All time worked in excess of mutually arranged hours is overtime.” (emphasis added)
[95] In many modern awards this means that part-time employees, unlike full-time employees, may not have their rostered hours changed by the employer on the provision of a specified period of notice, but must consent in writing to any change. For example, in relation to the establishment of 3 modern awards as part of the award modernisation process, the Aged Care Award, the Nurses Award 2010 and the Health Professionals and Support Services Award 2010, the Full Bench said:
“[147] ... One matter which was raised in all but the Medical Practitioners Award 2010 related to the use of part-time employees. There are a number of common features for the use of part-time employees. To begin, they must have reasonably predictable hours of duty. Underlying provisions vary but generally there is a requirement to provide certainty when employing part-timers. We have included a relevant provision. The next issue is in relation to changes to working hours of part-timers. There are of course notice periods for roster changes contained in the underlying awards but these seem not to be used in relation to part-timers. Instead, part-time hours appear to be changed regularly on a daily basis where the employee consents. Many employers saw this as a necessary flexibility. The private hospital industry employer associations estimated that, on average, part-timers would work an extra six hours per week. The impact of this consent is that the employee does not receive overtime for working in excess of the rostered hours when requested but is paid at the ordinary time rate.
[148] We have some reservations about the nature of the consent in circumstances where a supervisor directly requests a change in hours on a day where the part-timer had otherwise planned to cease work at a particular time. Existing provisions require that any amendment to the roster be in writing and we have retained this provision. We also have no doubt that many part-time employees would welcome the opportunity to earn additional income. However, there may also be part-timers who would be concerned to ensure that their employment is not jeopardised by declining a direct request from a supervisor to work additional non-rostered hours at ordinary rates. From the submissions of the employers this is a major cost saving and used widely.
[149] Whilst all the relevant underlying awards have different provisions there is a general opportunity for part-time employees to consent to working additional hours at ordinary rates within an average of less than a 38 hour week. We have sought to provide some common provisions which retain cost savings for employers in the knowledge that any change requires written consent. There was never any suggestion that asking part-timers to work additional hours did not relate to unforeseen circumstances on the day.”
[96] In relation to the Aged Care Award, the Full Bench in Appeal by Leading Age Services Australia NSW - ACT confirmed that the provisions of the award allowing unilateral change to rosters without the consent of the employee were not available in the case of part-time employees, to whom a specific scheme of provisions applied which required the employee’s written consent to any change in hours. The Full Bench pointed to the requirement in the award for part-time employees to have “reasonably predictable hours of work” and said:
“[19] ... This requirement for reasonable predictability in hours of work stems, we consider, from the originating concept of part-time employment as being suitable for and attractive to persons who have other significant and reasonably predictable family, employment and/or educational commitments and therefore require some certainty as to the days upon which they work and the times they start and finish work. It follows that the other provisions of the Award applying to part-time employees must so far as the language permits be read as giving content to the definitional requirement of reasonable predictability in hours of work.”
[97] Thus the typically distinctive features of the award regulation of part-time work – the requirement for written agreement specifying the number of hours to be worked and the days and times in the week when these hours are to be worked, alterable by written agreement only – reflect the original rationale for part-time employment to which we have earlier referred. Part-time employment has been treated as peculiarly suitable for those with major family or other personal commitments in their lives, and award provisions have not been constructed simply to allow any person to be employed on any number of hours below full-time hours.”
Mr Stingel contends that the above industrial history and context reveals that part-time employment is more than simply working less than full-time hours of 38 per week. Part-time employment is a form of employment designed to be suitable for, and attractive to, people with personal and family commitments, to enable them to participate in the workforce by providing a level of predictability.
Mr Stingel also submits that arguments similar to those made by Ambulance Victoria in this case have been rejected in previous Full Bench decisions involving a conflict between a general hours of work or roster provision in an agreement and similar part-time provisions: Transport Workers’ Union of Australia v Qantas Airways Limited (‘Qantas’)[6] and in Appeal by Leading Age Services Australia NSW-ACT (‘Leading Age Services’).[7] In each case, the Full Bench found that a general hours of work provision cannot be used to override conflicting provisions in the part-time employment clause.
Principles
The principles of enterprise agreement construction are well established and I have applied them here. They were summarised in “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd[8](‘Berri’)as follows:
“1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i) the text of the agreement viewed as a whole;
(ii) the disputed provision’s place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which it operates.
2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aid the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common assumption.
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
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 of Australia stated the principles applicable to the interpretation of an enterprise agreement in James Cook University v Ridd:[9]
“(i) The starting point is the ordinary meaning of the words, read as a whole and in context.
(ii) A purposive approach is preferred to a narrow or pedantic approach — the framers of such documents were likely to be of a “practical bent of mind”. The interpretation “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose”.
(iii) Context is not confined to the words of the instrument surrounding the expression to be construed. It may extend to “... the entire document of which it is a part, or to other documents with which there is an association”.
(iv) Context may include “... ideas that gave rise to an expression in a document from which it has been taken”.
(v) Recourse may be had to the history of a particular clause “Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form...”
(vi) A generous construction is preferred over a strictly literal approach, but “Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties”.
(vii) Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry.” [references omitted]
These principles were not disturbed on appeal, but the High Court did make the following observation in relation to the interpretation of enterprise agreements:[10]
“…In that process of interpretation, an important matter of context is the industrial nature of the instrument. Industrial instruments are not always drafted carefully by lawyers or professional drafters, and hence the literal words of a provision might more readily be understood to have a meaning other than their ordinary meaning if the context so suggests.”
Consideration
The starting point for construing the Agreement is the ordinary meaning of the words, read as a whole and in context.
Clause 18 of the Agreement includes a definition of part-time employee in subclause 18.2 and in subclause 18.4 requires that a written agreement be provided to the employee upon commencement of the part-time employment that specifies the hours to be worked each day, the days to be worked and the employee’s starting and finishing times. Any variation to the regular pattern of work must be agreed and recorded in writing.
‘Regular pattern of work’ is not defined in the Agreement. It first appears in the definition of a part-time employee in paragraph (b) of subclause 18.2. In the context of subclause 18.4 where the phrase appears, I consider it is a reference to the elements required to be included in the written agreement required to be given upon the commencement of part-time employment, namely the hours to be worked each day, the days to be worked and the part-time employee’s starting and finishing times. I do so for several reasons.
First, it is consistent with the plain meaning of the words ‘regular’ and ‘pattern’ and the composite phrase ‘regular pattern of work’, which connotes a usual, normal, customary form or sequence discernible in the way in which the employee’s work is performed. Each of these elements working together constitutes and forms a regular pattern of work.
Further, the phrase ‘regular pattern of work’ also appears in the extract of the Full Bench decision set out in paragraph 17 above, issued as part of the award modernisation process conducted pursuant to Part 10A of the Workplace Relations Act 1996. That Full Bench referred to a ‘regular pattern of work’ as “specifying at least the hours worked each day, which days of the week the employee will work and the actual starting and finishing times each day, with variation in writing being permissible.”[11] Interpreting the phrase in the Agreement as including each of these elements, is consistent with the history of the meaning of the phrase.
I also note that Ambulance Victoria does not submit the phrase has a narrower meaning and does not contend that night shifts have ever been a part of Mr Stingel’s regular pattern of work.
Turning to consideration of the construction of subclause 18.4, on its face the subclause requires any variation or change in any of the components of the regular pattern of work (hours, days, or start and finishing times) to only occur with the agreement of the part-time employee.
However, clause 43 confers on Ambulance Victoria the right to change a roster (cl 43.2), change start and finish times (cl 43.3) and/or introduce a different roster (cl 43.4) subject to 28 days’ notice to and consultation with affected employees, so that employees can raise any issues with their personal and family circumstances.
Clause 43 does not expressly confine its operation to full-time employees, and at least some subclauses, such as subclause 43.5 and subclause 43.6, can on their face apply to part-time employees as well as full-time employees.
Viewing clause 43 in its context in Part 5 of the Agreement more broadly, it follows immediately after clause 42. Clause 42 provides for the ordinary hours of work for full-time employees but not part-time employees. Subclause 42.4 provides that ordinary hours of work (of full-time employees) may be averaged over a Roster Pattern. This stands in contrast with the provisions applying to part-time employees in subclause 18.2 which provides in the definition of a part-time employee that they work less than full-time hours of 38 per week or less than an average of 38 hours per week over an agreed Roster Pattern. ‘Roster Pattern’ is defined as meaning a sequence of shifts and rostered days off, the configuration of which may vary between Roster Patterns. The location of clause 43 and its content – arranging ordinary and rostered hours of work - immediately following the ordinary hours of work for full-time employees, together with the distinction between the requirement for a Roster Pattern to be agreed for part-time but not full-time employees provides some, albeit limited and qualified textual support for a construction that subclause 43.4 does not apply in respect of part-time employees.
Several other clauses in Part 5 deal with matters that clause 18 of the Agreement does not, and can apply to part-time employees. Examples include terms relating to unsociable shift incentives in clause 46, meal and other breaks in clause 51, daylight saving in clause 53 and unusual hours in clause 54. As they deal with terms that are not dealt with by clause 18 of the Agreement, there is no tension or conflict between them.
As noted above in paragraph [15], Ambulance Victoria’s primary submission is that both clauses can be construed in a way that enables them to work together. It contends that if subclause 18.4 is construed to mean within a 28 day Roster Cycle, it works conformably with clause 43 and still has work to do. However, for the two provisions to be construed to preserve a role for subclause 18.4, essentially requires reading into the clause the additional words “within a Roster Cycle”. The subclause would, in effect, read: Any variation to the regular pattern of work within a Roster Cycle must be agreed and recorded in writing. There is, in my view, no basis to do so. Without clear language evincing such an intention, it would have the effect of reading down the entitlement in subclause 18.4 significantly and diminish the entitlements of part-time employees under the Agreement. The provisions which on their face (and consistent with industrial history) provide a level of predictability greater than that of full-time employees, would instead mean that part-time employees would be entitled to no greater predictability than a full-time employee if their starting and finishing times could be changed upon 28 days’ notice, consultation, and access to a grievance procedure. Ambulance Victoria’s claim that Mr Stingel would retain substantial predictability as to the number of days in a week worked, and the number of hours worked in a week would remain unchanged, is not to the point. The question is what does the Agreement permit.
Contrary to Ambulance Victoria’s submission, in my view there is a direct conflict between the right conferred on Ambulance Victoria in subclause 43.3 to change the start and finish times of employees without requiring agreement of the affected employees on the one hand, and the plain meaning of subclause 18.4 that requires that any variation to the regular pattern of work, which I consider includes start and finishing times, to be by agreement. That conflict should be resolved by affording primacy to the specific provisions dealing with changes to the hours of part-time employees in subclause 18.4, in accordance with the generalia specialibus non derogant principle of construction.
I consider that the construction of the terms of the Agreement advanced by Mr Stingel accords with the plain and ordinary meaning of the words within subclause 18.4 and the context of clause 18 as a whole.
I accept that this construction may well give rise to considerable operational difficulties for Ambulance Victoria and potential inequitable rostering of unpopular shifts to other employees. However, while a narrow or pedantic approach to interpretation of an enterprise agreement is to be avoided, the Commission is not free to give effect to some anteriorly derived notion of what would be fair and just regardless of what is written in the agreement.[12] The same principle appears in Berri: the task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome.
Disputes about the correct construction of an enterprise agreement depend on the language in the relevant agreement and decisions in other cases have limited relevance. Nonetheless, I note that the conclusions I have reached are consistent with the decisions in Qantas and Leading Age Services. Whilst Ambulance Victoria pointed to several factual differences between the provisions in the Agreement and the provisions considered in the Full Bench decisions, including significantly shorter notice periods compared to the 28-day notice period required under the Agreement to change start and finish times, such factual differences do not disturb the underpinning rationale of applying the generalia specialibus non derogant principle where there is a conflict between the general change to hours provisions and more constrained provisions relating to part-time employment.
Finally, out of completeness, Ambulance Victoria also drew attention to the Commission’s Statement in Award flexibility - General Retail Award 2020.[13] In that Statement, a Full Bench was considering the General Retail Industry Award 2020 which included provisions within the part-time employment clause (clause 10), enabling an employer to vary the roster of part-time employees. The Full Bench expressed a provisional view that Qantas and Leading Age Services do not support the view that a part-time employee’s regular pattern of work can only be changed by agreement but did support the view that clause 10 of the Award ‘covered the field’ as to how a part-time employee’s hours could be changed. The Bench went on to express a provisional view that the clause providing for general roster changes (cl 15.9) should be amended to make it clear that it does not apply to part-time employees. I do not consider that my conclusion is contrary to the provisional views expressed in the Full Bench Statement, and which were considering significantly different provisions.
In my view, the correct construction of the Agreement is that clause 18, including subclause 18.4, prescribes the circumstances in which a part-time employee’s hours can be varied, and that subclause 43.3 does not apply in respect of part-time employees. Any variation of a part-time employee’s regular pattern of work must be by agreement and recorded in writing. In other words, Ambulance Victoria is not permitted to utilise the mechanism in subclause 43.3 to change a part-time employee’s start and finish times.
Conclusion
Accordingly, I determine the dispute as follows:
Question: “Can Ambulance Victoria amend the Applicant’s start/finish times under subclause 43.3 of the Ambulance Victoria Enterprise Agreement 2020 on 28 days’ notice to, and consultation with, the Applicant without first obtaining his agreement to do so under subclause 18.4 of the Agreement?”
Answer: No
DEPUTY PRESIDENT
Appearances:
P Lettau of counsel for the Applicant.
C McDermott of counsel for the Respondent.
Hearing details:
2022.
Melbourne (by video):
November 11.
[1] Applicant’s outline of submissions at [44]-[49].
[2] Ibid at [45]-[46]
[3] Respondent’s outline of submissions at [56].
[4] (1995) 62 IR 48.
[5] 4 yearly review of modern awards - Casual employment and Part-time employment [2017] FWCFB 3541 at [86], [92]-[97].
[6] [2008] AIRCFB 1198.
[7] [2014] FWCFB 129.
[8] [2017] FWCFB 3005 at [114].
[9] [2020] FCAFC 123 at [65].
[10] Ridd v James Cook University [2021] HCA 32 at [17].
[11] Award Modernisation Decision [2009] AIRCFB 826 at [136].
[12] Kucks v CSR Limited [1996] IRCA 166.
[13] [2021] FWCFB 2820.
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