New South Wales Nurses and Midwives' Association v Bupa Care Services Pty Limited

[2016] FWC 8508

[2016] FWC 8508 [Note: An appeal pursuant to s.604 (C2016/7380) was lodged against this decision - refer to Full Bench decision dated 20 April 2017 [[2017] FWCFB 1093] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

New South Wales Nurses and Midwives' Association
v
BUPA Care Services Pty Limited
(C2016/4647), (C2016/4648)

Aged care industry
COMMISSIONER JOHNS	MELBOURNE, 25 NOVEMBER 2016

Applications to deal with a dispute.

[1] This decision involves applications brought by the New South Wales Nurses and Midwives’ Association (NSWNMA/applicant) under section 739 of the Fair Work Act 2009 (FW Act). The NSWNMA brought the applications in support of its members, Catherine Puata and Sukanya West. Both are Assistants in Nursing at Bupa Banora Point.
[2] The Respondent is BUPA Care Services Pty Limited (Bupa/respondent).
[3] The parties are covered by the Bupa Care Services, NSWNMA, ANMF (NSW Branch) and HSU NSW Branch, New South Wales Enterprise Agreement 2013 (Agreement). The Agreement was approved by the Commission on 31 January 2013. It passed its nominal expiry date on 31 August 2016.
[4] In or around January 2016 BUPA decided to introduce a new model of care called the Bupa Model of Care (BMoC). The introduction of the BMoC was said to be:

“… consistent with Bupa’s goal of taking a “person first” approach to aged care (that is, ensuring that the resident is at the centre of everything we do). As part of this person first approach, BMoC sought to divide care homes into smaller communities with staff members (where possible) rostered to work in the same community each shift to help build a greater connection with residents and provide more personalised care.” 1

[5] This dispute does not involve an assessment of the BMoC or the right of Bupa to implement it. That is entirely a matter for the prerogative of the management of the respondent.
[6] Bupa has 28 care homes across NSW. The implementation of the BMoC impacted upon staffing and rostering arrangements of 2,272 employees. 2 Bupa discussed the changes with the employees impacted by the implementation of the BMoC. Issues arose, but most were resolved between Bupa and employees directly or with the assistance of the Fair Work Commission (Commission).
[7] Discrete issues involving Ms Puata and Ms West remained unresolved. In the context of the factual matters relating only to Ms Puata and Ms West, the subject of the present disputes are about the operation of various terms of the Agreement concerning the rights of part-time employees, roster arrangements, the introduction of major change and consultation. The resolution of those matters does not give rise to principles of general application applying beyond the circumstances of Ms Puata and Ms West.
[8] The following is a summary of the background to the issues in dispute:

a) Ms Puata,

i. In March 2014 Bupa provided Ms Puata with a confirmation of her permanent part-time shifts in respect of 56 hours per fortnight. Her then current allocated permanent shifts occurred on Monday, Tuesday Wednesday and Sunday.

ii. The confirmation stated “please note you are contracted to permanent hours not shifts-the shifts and areas may change”. 3

iii. In October 2014 Ms Puata forfeited her Wednesday shift.

iv. Consequently,

a. from 20 October 2014 Ms Puata has worked:

i. 2.30 pm – 10.30 pm Sunday,

ii. 2.30 pm – 9.30 pm Monday,

iii. 2.30 pm – 9.30 pm Tuesday. 4

b. Ms Puata is presently contracted to work forty-one hours per fortnight.

v. Ms Puata wants to continue with the shift pattern she has worked since October 2014. In particular she relies upon the penalty rates paid in respect of the shift on Sunday. The shift pattern income earned suits her financial situation and her lifestyle in semi-retirement.

vi. Because of the BMoC, Bupa want to change Ms Puata’s shifts. Proposed changes would result in less income for Ms Puata and an increase in the number of shifts she has to work (to maintain the same income).

vii. Ms Puata’s preferred shift pattern does not suit Bupa’s operations because it overlaps with other employees’ rosters. It is not considered to be the most efficient use of Bupa’s resources.

b) Ms West,

i. The BMoC has also caused a change in Ms West’s hours and shift pattern.

ii. Ms West has accepted a change in her hours but is not satisfied with how the change has been documented.

iii. On 4 August 2016 Bupa issued a letter to Ms West (West Letter) in the following terms,

“Further to recent discussions, from 4 August 2016, it will work the fortnightly roster discussed with you during the Fair Work Commission conciliation conference on 3 August 2016. This will be a temporary arrangement and further hours, as mentioned below will be added to your shifts as they become available. This means you’re contracted fortnightly hours will reduce from 45 hours to 37 hours per fortnight during this temporary arrangement.

When a further two hours becomes available to extend your shifts on a Saturday and-Monday, you will be the “first cab off the rank” to obtain those extra hours and increase your fortnightly hours accordingly.

As always, any further changes to your roster we made after consultation with you under clause 7.11 of the enterprise agreement (or the equivalent provision of any agreement which replaces this enterprise agreement).”

iv. Ms West is concerned that the West Letter does not record the days and the shifts on which the contracted number of hours will be worked (currently, Saturdays, Sundays and Mondays).

v. She wants the “days and shifts put in writing” 5 so that she can confidently plan the rest of her life around a set work pattern. Ms West’s evidence under cross-examination was “what I want is a contract between me and Bupa that says the number of hours and days and shifts like, I work Saturday, Sunday and Monday, just like that.”6

[9] At the hearing on 5 September 2016:

a) the applicant was represented by Mr M Gibian of counsel, with permission pursuant to section 596(2)(a) of the FW Act; and
b) the respondent was represented by Mr C Cook, Deputy General Counsel for BUPA.

[10] Submissions and evidence had been filed prior to the hearing. Consequently, in addition to the evidence elicited and submissions made at the hearing, the Commission, as presently constituted, has also had regard to the following in coming to its decision in this matter:

a) Outline of Applicant’s submissions (Exhibit A1);

b) Witness Statement of Nicholas Blake (Exhibit A2) (who was not required for cross-examination);

c) Witness Statement of Katherine Puata (Exhibit A3) (who gave evidence at the hearing and was made available for cross-examination);

d) Supplementary Statement of Katherine Puata (Exhibit A4);

e) Witness Statement of Christopher Blair (Exhibit A5) (who gave evidence at the hearing and was made available for cross-examination);

f) Supplementary Witness Statement of Christopher Blair (Exhibit A6);

g) Respondent’s Outline of Submissions (Exhibit R1);

h) Witness Statement of Letitia Quirk (Exhibit R2) (who was not required for cross-examination); and

i) Second Witness Statement of Marie Carigliano (Exhibit R3) (who gave evidence at the hearing and was made available for cross-examination).

Issue in dispute

[11] Most of the factual matrix is uncontroversial. For example, it cannot be disputed that the respondent undertook extensive consultation with its employees. There can be little complaint about the time, energy and resources that Bupa deployed to consultation. The real dispute is about whether, having engaged in certain post-consultation conduct, Bupa has complied with the requirements of the Agreement.
[12] The issues can be summarised as follows:

a) Is the respondent entitled to give notice to Ms Puata of a change to her roster without reaching agreement in writing with her?
b) Do the terms of the West Letter comply with the requirements of the Agreement?

[13] However, it seems that there is a broader historical issue about whether Bupa has been complying with part 9.3 of the Agreement, in particular the obligation to “agree in writing … the rostering arrangements” which are to apply to the guaranteed minimum number of hours to be worked by a part-time employee. The NSWNMA says Bupa has not been complying with the Agreement. Bupa disputes this. Part of the submissions filed in this matter went to this issue of compliance. The Commission is not the proper venue to ventilate these issues. This is not a case involving an alleged breach of an enterprise agreement. The Commission has no jurisdiction to determine the same.
[14] In the context of the matters which are properly to be decided by the Commission, the NSWNMA and Bupa do not agree on the meaning of “rostering arrangements”. Consequently, it is useful to first focus on part 9.3 of the Agreement, in the context of the Agreement as a whole, before attempting to decide the specific matters involving Ms Puata and Ms West.
Principles of construction of agreements
[15] In October 2014 a Full Bench of the Commission heard an appeal in The Australian Meat Industry Employees Union v Golden Cockerel Pty Limited (Golden Cockerel). 7 In summary the appeal concerned the principles relevant to the interpretation of an agreement. The Full Bench went to great lengths to set out the relevant principles and relevant authorities. The principles can be summarised as follows:

[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.

[16] In coming to this decision the Commission, as presently constituted, has had regard to the authorities referred to by the Full Bench and has adopted the relevant principles.

What does the Agreement provide?

[17] The relevant parts of the Agreement that give rise to the disputes are as follows:

Part-time employment

9.3 Part-time employment

(a) A part-time employee is an employee who is engaged to work less than an average of 38 ordinary hours per week and whose hours of work are reasonably predictable.

(b) Before commencing part-time employment, Bupa and a part time employee will agree in writing the guaranteed minimum number of hours to be worked and the rostering arrangements which will apply to those hours. The minimum hours which a part time employee will be required to work on a rostered day or shift is 3 hours.

(c) The terms of the agreement may be varied by agreement and recorded in writing.

(emphasis added)

Rostering

24.1 This clause applies to all employees covered by this Agreement.

24.2 Employees will work in accordance with a weekly or fortnightly roster fixed by Bupa.

24.3 The roster will set out employees’ daily ordinary working hours and starting and finishing times and will be displayed in a place conveniently accessible to employees at least 14 days before the commencement of the roster period.

24.4 Unless Bupa otherwise agrees, an employee desiring a roster change will give seven days’ notice except where the employee is ill or in an emergency.

24.5 Seven days’ notice of a change of roster will be given by Bupa to an employee. Except that, a roster may be altered at any time to enable the functions of the facility to be carried out where another employee is absent from work due to illness or an emergency. Where any such alternation requires an employee working on a day which would otherwise have been the employee’s day off, the day off instead will be mutually arranged.

Submissions

[18] It is to be observed that:

a) the part-time employment clause, self-evidently, applies to part-time employees; but that,
b) the rostering clause applies to “all employees”.

Applicant

[19] The NSWNMA submitted that the two clauses conflict with each other and that, consequently, the specific part-time employment clause should prevail over the general rostering clause to the extent there is any inconsistency between the two. The NSWNMA submitted that,

27. … on the plain wording of the Agreement, [it] is not open to Bupa to alter the terms of an agreement reached under clause 9.3(b) by simply giving notice of a roster change in accordance with clause 24 or following a process of consultation under clause 7 of the Agreement. Clause 9.3(b) requires Bupa to reach agreement with a part-time employee not only in relation to the total hours of work but also the “rostering arrangements which will apply to those hours.” Both the minimum number of hours of work and the rostering arrangements cannot be altered except with the written agreement of the employee in accordance with clause 9.3(c).

28. A number of considerations support that conclusion. Firstly, clause 9.3 of the Agreement is a provision with specific application to part-time employment. Applying the generalia specialibus non derogant principle of interpretation, the specific provisions of clause 9.3 would be held to prevail over other general provisions in the case of any inconsistency. 8 If Bupa is able to alter the agreed minimum hours of work and rostering arrangements by giving notice of a roster change or through a process of consultation, the purpose of clause 9.3(b) and the requirement for written agreement for any variation under clause 9.3(c) would be destroyed. Reading the Agreement as a whole, it is most unlikely the parties intended the specific provision dealing with part-time employment be rendered of no value by Bupa otherwise having the capacity to change a part-time employee’s hours of work without agreement.

29. …, the purpose of clause 9.3 supports the conclusion. The purpose of the limitation imposed by clause 9.3(c) is clearly to ensure the hours of work of a part-time employee are “reasonably predictable” as required by clause 9.3(a) and to ensure that part-time employees have the certainty as to their hours of work that is frequently of critical importance to those employees as a result of family, carer’s or study commitments. The purpose of ensuring part-time employees have “reasonably predictable hours of work” would be defeated if Bupa could nonetheless require an employee change his or her hours of work without agreement.

[20] In relation to part-time work agreements the NSWNMA submitted that,

39. The second issue which arises in these disputes concerns whether documents proposed to be executed by Bupa with its part-time employees comply with the requirement in clause 9.3(b) of the Agreement for there to be agreement in writing in relation to the “guaranteed minimum number of hours to be worked and the rostering arrangements which will apply to those hours.”

40. The evidence indicates that Bupa has purported to direct Ms Puata and Ms West to change their hours of work by means of correspondence dated 12 July 2016. Both letters purports to state the “permanent hours per fortnight” of the employee, but do not record the days of work or starting and finishing times of the employee. The correspondence also asserts as follows:

Please note that this roster is subject to change. Any change will be in accordance with the Bupa Care Services, NSWNMA, ANMF (NSW Branch) and NSU NSW Branch, New South Wales Enterprise Agreement 2013 ([Agreement]), or the enterprise agreement which replaces the [Agreement].

41. …, clause 9.3(b) and (c) of the Agreement are, like the equivalent provisions in the Nursing Award 2010, intended to ensure that part-time employees have reasonably predictable hours of work and pattern of work. The requirement in clause 9.3(b) of the Agreement that an employer and employee agree in writing the guaranteed minimum and rostering arrangements must be given content consistent with that purpose.

Respondent

[21] In answer to the argument that it cannot unilaterally direct an employee to change their guaranteed minimum hours (but, rather must reach agreement with the employee in writing) Bupa submitted that,

• The issue of Bupa’s ability (or inability) to change an employee’s roster does not arise under clause 9.3(c) at all. It arises under clause 24 and under the employee’s contract of employment – and, in this case, neither restricts Bupa’s ability to make a change to the roster after appropriate consultation.

• Bupa agrees that, under clause 9.3(c) of the [Agreement], the company needs to reach agreement with an employee about any change to their agreement made at the commencement of their employment under clause 9.3(b). This change must be recorded in writing. Clause 9.3(c) merely requires agreement to vary the terms of whatever agreement was initially reached under clause 9.3(b) – it does not contain a separate requirement to agree on any variation to the roster. If the roster was not set out in the initial agreement, then it is not the subject of variation under clause 9.3(c).

• In any event, the initial written agreement made pursuant to clause 9.3(b) must address the guaranteed minimum hours and the rostering arrangements which apply to those hours.

• Guaranteed minimum hours are the minimum number of hours guaranteed to an employee per week or fortnight.

• “Rostering arrangements”, as a plain reading suggests, are the arrangements surrounding the roster such as whether the roster is a weekly or fortnightly roster, where the roster will be displayed, that an employee may be required to work reasonable additional hours on top of their guaranteed hours and that the employee’s roster may change from time to time (this distinction is made clear in Bupa’s current template letter of offer: “MC-3” to Second Witness Statement of Marie Carigliano).

• A “roster” is a schedule of working hours, set out on a day by day basis over a fortnight or week. The roster and Bupa’s ability to change the roster are dealt with in clause 24 of the [Agreement].

• The Commission has made clear that s.739 is not a mechanism to be used by employees to seek an order where they disagree with management’s decision as to their roster. In Roberts and Collins v Coles Group Supply Chain Pty Ltd[2016] FWC 4898, Sams DP stressed that the Commission’s role is not to arbitrate where a person is unhappy with the outcome of a roster change and seek to override managerial prerogative to make changes under an enterprise agreement (pars [97], [98] and [101] and cases referred to therein). Further, the Deputy President noted that the practical corollary of making such an order would be to displace other employees in the roster (par [105]), which would be the case if the Commission were to make the order sought in these matters.

• In the Coles matter, the applicants were seeking the Commission’s intervention on the basis of a set of selection criteria in the relevant enterprise agreement used to select employees for various shifts. Arguably, such a provision would give the Commission more scope to arbitrate than in the current matter (where clause 24 of the [Agreement] allows roster changes to be made on 7 days’ notice, with no selection criteria).

[22] In answer to the argument that there is an inconsistency in the relevant provisions of the Agreement that needs to be reconciled Bupa submitted that,

• There is no inconsistency in the relevant provisions of the [Agreement] or their application.

• Clause 2(i) makes clear that a key objective of the [Agreement] is to enable flexibility in rostering to meet the needs of our residents.

• Clause 7.11 requires Bupa to consult with employees about changes to their regular roster or ordinary hours of work.

• Clause 9.3(c) requires agreement between Bupa and an employee about a change to the agreement reached with the employee on commencement of their employment (and this initial agreement does not set out the “roster” - see above).

• Clause 24 says that employees will work “in accordance with a weekly or fortnightly roster fixed by Bupa” and employees will be given 7 days’ notice of a roster change.

[23] In answer to the purposive argument advanced by the NSWNMA, Bupa submitted that,

• Clause 9.3(c) is clear – agreement needs to be reached regarding any change to an employee’s initial agreement.

• Equally, clause 24 makes clear that Bupa can fix a roster and provide 7 days’ notice of a roster change.

• The reference to the Full Bench decision in Leading Aged Care Services [2014] FWCFB 129 makes clear that the operative provisions of the clause hold sway (“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” – par [19]). And in that case, the relevant award provision, in contrast to clause 9.3(b) of the [Agreement], provides that:

“Before commencing employment, the employer and employee will agree in writing on a regular pattern of work including the number of hours to be worked each week, the days of the week the employee will work and the starting and finishing times each day.”

• The parties to the [Agreement] have chosen entirely different words in clause 9.3(b) of the [Agreement].

• In any event, employees’ hours of work are still “reasonably predictable” under the terms of the [Agreement] – clause 9.3(a) does not say that hours or rosters need to be set indefinitely. In line with the [Agreement], rosters are fixed with appropriate notice and then, if necessary, changed after fulsome consultation with the relevant employee.

Consideration
[24] The Agreement operates to the exclusion of the Nurses Award 2010, Aged Care Award 2010 and the Health Professionals and Support Services Award 2010. However, the NSWNMA submitted that proceedings relating to those modern awards are relevant in understanding the proper construction of the Agreement.
[25] The NSWNMA led evidence from Nicholas Blake, a Senior Federal Industrial Officer. Mr Blake was not called to give expert evidence, but it is apparent that he brings a high degree of expertise and specialist knowledge to an understanding of industrial instruments that apply to nurses. His evidence about the development of the Nursing Award was instructive. Mr Blake was not required for cross-examination.
[26] The NSWNMA submitted that,

30. In Leading Age Services Australia NSW – ACT [2014] FWCFB 129, the Full Bench of the Commission observed by reference to the part-time employment provisions of the Aged Care Award 2010 (at [19]) that:

… 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.

31. …, clause 9.3 is in relevantly identical terms to clause 10.3 of the Nurses Award 2010. In those circumstances, it can be inferred that clause 9.3 of the Agreement was intended to have the same operation as equivalent clause of the Award. It is clear from the award modernisation proceedings which resulted in the making of the Nurses Award 2010, and other awards, including the Aged Care Award 2010, that the Commission intended clause 10.3 of the Award to constrain the capacity of an employer to change either total hours of work or the pattern of working hours without agreement by an individual employee.

32. In the award modernisation proceedings, employer groups specifically sought inclusion of provisions in relevant awards permitting an employer to employ change an employee’s days of work or starting and finishing times by given notice under the roster provisions. The Full Bench did not adopt that position. In Re Award Modernisation (2009) 181 IR 19, a seven member Full Bench expressly considered that issue in relation to the Aged Care Award 2010, the Nurses Award 2010 and the Health Professionals and Support Services Award 2010. The Full Bench said (at [147]-[148]):

[147] There were a number of key factors which the parties raised which require comment in this decision. 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.

33. In making the modern award, the Full Bench rejected the form of part-time provision sought by employers and adopted the terms proposed by the Australian Nursing Federation. The Federation’s submissions made clear that it understood and intended that the provision required agreement for alterations to the number of hours of work, days of work or starting and finishing times of a part-time employee.

34. …, the construction put forward by the Association is consistent with the decision of the Full Bench in Leading Age Services Australia NSW – ACT [2014] FWCFB 129 dealing with the Aged Care Award 2010. In that decision, the Full Bench found that an agreement with a part-time employee as to the number of hours worked, the days the employee will work and the starting and finishing times each day could only be varied by further written agreement with the employee. It was not possible, under the Aged Care Award 2010, for the employer to alter the working hours of a part-time employee by simply giving notice of a roster change. The Full Bench concluded (at [18]):

[18] Insofar as there is an interpretational contest as to how clauses 10.3(c) and 22.6(c) interrelate with each other, we consider it appropriate to express our views on the subject. Our conclusion is that the effect of clause 10.3(c) is to require any changes to the agreement entered into before the commencement of employment pursuant to clause 10.3(b), including any changes to the number of hours worked each week, the days of the week the employee will work and the starting and finishing times each day, to be by further written agreement, and that clause 22.6(c) does not permit the employer to make unilateral changes in respect of any of these matters for part-time employees by use of its right to change the roster on the provision of the requisite notice …

35. The Aged Care Award 2010 was made by the Commission at the same time as the Nursing Award 2010 and the Full Bench gave consideration to part-time provisions with respect to both awards together. The reasoning and conclusion in Leading Age Services is compelling when it comes to the interpretation of clause 10.3 of the Nursing Award.

[27] In answer to the argument that some reliance can made to the terms of the modern awards, Bupa submitted that,

• This inference cannot be drawn. First, in order for the Commission to look behind the words of the [Agreement], those words must contain ambiguity or not have a plain meaning (City of Wanneroo v ASU (2006) 153 IR 426) – for the reasons set out above, this prerequisite does not apply. Second, even if there is ambiguity or a lack of plain meaning, the history of the modern award is of limited (if any) relevance. The parties’ intentions as to the operation of the provisions of the [Agreement] would be of more relevance.

• The Full Bench decision is Re Award Modernisation takes the matter no further. The Full Bench expressed a desire to ensure part time employees’ hours are “reasonably predictable” (which they are at Bupa – see above), expressed concern about notice periods for roster changes not being utilised for part time employees meaning part timers’ hours change on a daily basis (which is not the case at Bupa) and that “any amendment to the roster be in writing” to avoid ad hoc changes to the roster at short notice (the roster is a written document at Bupa, provided with advanced notice in accordance with clause 24.5, so this requirement is fulfilled).

• The decision in Leading Aged Care Services relates to the Aged Care Award 2010, which has far more prescriptive requirements around what is to be included in a part time agreement (namely, “the number of hours to be worked each week, the days of the week the employee will work and the starting and finishing times each day.”)

• The parties to the [Agreement] have elected to use entirely different language and therefore no weight should be given to this submission.

[28] As experienced industrial parties, the Agreement would not have been drafted in a vacuum. Consequently, it can reasonably be assumed that the parties were aware of and had an understanding of like provisions in modern awards. Such an assumption is consistent with established principles of construction. In Re Andrew John Short v FW Hercus Pty Ltd 9 Burchett J colourfully explained,

Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read. 10

[29] An understanding of those like provisions has assisted the Commission, as presently constituted, in construing the Agreement. It has led me to conclude that the Agreement, and in particular clause 9.3, has a plain meaning and contains no ambiguity.
[30] Consequently, I adopt the submissions of the NSWNMA that,

42. If it were permissible for a part-time work agreement to do no more than record the guaranteed minimum hours of work of a part-time employee, the provision would not achieve its obvious objective of ensuring predictability and certainty in the working pattern of the employee. Such an agreement records no “rostering arrangements” at all. Neither would it be sufficient for an employer to enter an agreement which purports to permit it to change the hours of work of a part-time employee at any time.

43. The documents proposed to Ms Puata and Ms West to record their hours of work do no more than set out the guaranteed minimum number of hours of work. The documents do not record any rostering arrangements, including days of work or starting and finishing times. The documents provided to Ms Puata and Ms West do not satisfy the requirements of clause 9.3(b) of the Agreement.

[31] In adopting the construction advanced by the NSWNMA, I reject Bupa’s submission that “rostering arrangements” are confined to “arrangements surrounding the roster such as whether the roster is a weekly or fortnightly roster, where the roster will be displayed, that an employee may be required to work reasonable additional hours on top of their guaranteed hours and that the employee’s roster may change from time to time.” To adopt the construction advanced by Bupa would defeat the purpose of clause 9.3 which is to provide some predictability and certainty to part-time employees about their pattern of work. I am satisfied that the objective intention of the parties to the Agreement must have been to infuse part-time working arrangements with predictability and certainty. This objective intention is consistent with how like clauses in modern awards have properly been understood to apply.

[32] Although it is not immediately relevant to the resolution of the individual disputes presently before the Commission, it follows that, the better view is that, the initial agreement between Bupa and a part-time employee should set out the relevant roster. Any variation is also then to be in writing. That is the only way a part-time employee will be able to predict, with some certainty, when they are going to work and when they are going to have time to balance the other demands placed on them in their lives.

Conclusion

[33] Having regard to the these reasons, the two questions posed above can be answered as follows:

a) Is the respondent entitled to give notice to Ms Puata of a change to her roster without reaching agreement in writing with her?

Answer: No. 11

b) Do the terms of the West Letter comply with the requirements of the Agreement?

Answer: No.

COMMISSIONER

Appearances:

M, Gibian, of counsel, for the New South Wales Nurses and Midwives’ Association

C, Cook for BUPA Care Services Pty Limited

Hearing details:

Sydney

5 September, 2016

Final written submissions:

Applicant’s final submissions filed 12 August 2016

Respondent’s final submissions filed 23 August 2016

 1   Exhibit R3, para. 3.

 2   Ibid, para. 5.

 3   Annexure D to Exhibit A3.

 4   Annexure E to Exhibit A3.

 5   PN158.

 6   PN180.

 7   [2014] FWCFB 7447.

 8   Transport Workers’ Union of Australia v Qantas Airways Limited [2008] AIRC 1198 at [14]; Leading Age Services Australia NSW – ACT [2014] FWCFB 129 at [19]; Australian Workers’ Union v Bluescope Steel (AIS) Port Kembla [2015] FWCFB 1798 at [13]-[15].

 9 [1993] FCA 51; (1993) 40 FCR 511 (23 February 1993).

 10   Ibid, [7] per Burchett J.

 11   In making this finding it should not be considered an impediment to Bupa implementing the BMoC. As stated earlier in this decision, Bupa’s decision to implement the BMoC is entirely within the prerogative of the management of the respondent.

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