Paul Jardine v Goulburn-Murray Rural Water Corporation T/A Goulburn-Murray Water
[2023] FWC 2494
•23 NOVEMBER 2023
| [2023] FWC 2494 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Paul Jardine
v
Goulburn-Murray Rural Water Corporation T/A Goulburn-Murray Water
(C2022/2409)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 23 NOVEMBER 2023 |
Dispute about matters arising under an enterprise agreement – residual dispute arising after dispute arbitrated – whether Commission retains jurisdiction to determine residual dispute – interpretation of enterprise agreement.
On 14 April 2022, Mr Paul Jardine made an application under s 739 of the Fair Work Act 2009 (Cth) (Act) for the Commission to deal with a dispute in accordance with the dispute settlement procedure at clause 2.7 of the Goulburn-Murray Rural Water Corporation Enterprise Agreement 2020 (Agreement). The dispute relates to employees of Goulburn-Murray Rural Water Corporation T/A Goulburn-Murray Water (Corporation) engaged as automation technicians and electricians in the Electrical Automation group (Electrical Automation employees).
On 17 January 2023, the Commission issued a decision in which it made findings with respect to an agreed question for determination by arbitration (first decision).[1] The question was whether Electrical Automation employees who received an allowance pursuant to clause 6.1 of the Appendix to the Agreement were entitled to a day in lieu pursuant to clause 4.6.4 of Part 4 of the Agreement for undertaking Immediate Standby on a public holiday on a day when not rostered on duty. The answer to that question was “yes.”
Following the first decision, a subsequent dispute emerged from the Corporation’s attempt to give effect to the finding in the first decision. This led to the identification of a residual component of the dispute between the parties (residual dispute). This decision concerns the residual dispute.
Jurisdiction and the question for determination
The effect of the finding made in the first decision was that the receipt of an annualised salary pursuant to clause 6.1 of the Agreement’s Appendix did not satisfy clause 4.6.4 of the Agreement. In other words, the entitlement to a day in lieu was not reflected in the annualised salary. Accordingly, the relevant employees had been denied the entitlement in clause 4.6.4 of the Agreement on the Corporation’s erroneous belief that the entitlement formed part of the annualised salary paid to them pursuant to clause 6 of the Appendix. The Corporation sought to give effect to the first decision, however, the parties did not agree on the circumstances in which the conditions to the entitlement in clause 4.6.4 of the Agreement would be satisfied.
On 20 April 2023, Mr Jardine sought that the Commission deal with the issue pertaining to the proper interpretation of clause 4.6.4 of the Agreement as a secondary determination to the proceedings commenced on 14 April 2022. This was presumably because the Agreement no longer operated and the disputed provisions were no longer contained in any industrial instrument applying to employees, such that the Commission would not have jurisdiction to deal with the dispute were it the subject of a fresh application pursuant to s 739 of the Act.[2]
Mr Jardine’s position was that the Commission retains jurisdiction to determine the residual dispute. The Corporation opposed Mr Jardine’s request, contending that the dispute was determined by the first decision. On 25 May 2023 I advised the parties that I was of the view the Commission retained discretion to continue dealing with the dispute, including by way of further arbitration. The reasons for this decision are explained briefly below.
Section 739 of the Act provides that the Commission may deal with a dispute in accordance with a dispute resolution term of an enterprise agreement. Sections 739(2)-(3) and (5)-(6) provide conditions to the Commission dealing with a dispute. Section 739(4) of the Act provides as follows:
“If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.”
A Full Bench has held that s 595(3) is the source of the Commission’s power to arbitrate disputes if expressly authorised under or in accordance with another provision of the Act, and that s 739(4) is a provision of the Act that meets that description.[3] It is therefore the case that the arbitral powers of the Commission in s 595(3) may be exercised only after an engaging provision of the kind identified in s 739(4) is satisfied.
Section 595(3), when engaged by s 739(4), affords the Commission the power to arbitrate the “dispute.” In a different statutory context, the High Court has held that the Commission’s jurisdiction to deal with “the dispute” persists where the dispute is fragmented, and those separate elements are dealt with separately.[4] I consider that this dictum is apposite to the present statutory context, there being no material difference to the contextual meaning of the relevant jurisdictional condition, “the dispute,” and no express indication in the Act that an exercise of arbitral power prevents the Commission from further dealing with the dispute. The power to arbitrate the same “dispute” referred to in s 739(4) must be occasioned by the re-exercise of the s 595(3) power. In my view, where the occasion arises there is no impediment to the re-exercise of the power to arbitrate pursuant to s 595(3) when engaged by s 739(4).[5]
There is also no express or implied condition in the dispute resolution term of the Agreement which gives rise to an argument that a dispute being dealt with by the Commission may be the subject of an arbitration only once. Rather, the dispute resolution term states that either party to a dispute may refer the matter to the Commission for arbitration.[6]
The positions of the parties in relation to the residual dispute are considered in greater depth later in this decision. However, it is necessary to briefly outline the parties’ respective positions for the purpose of canvassing my reasons on the issue of jurisdiction. Clause 4.6.4 is in full as follows:
“A day in lieu will be granted to compensate for undertaking Immediate Standby on a public holiday when not rostered on duty.”
The Corporation initially preferred an interpretation that employees were only entitled to a day in lieu when they undertook Immediate Standby on a public holiday which fell on a Saturday or a Sunday, because they are the only days on which an Electrical Automation employee could possibly not be “rostered on duty.” Mr Jardine’s position is that the entitlement in clause 4.6.4 arises on any day on which an employee undertakes Immediate Standby on a public holiday while not rostered on duty. Determining this contest will not directly bear upon any aspect of the first decision, which pertained to the question of whether the entitlement in clause 4.6.4 is satisfied by the receipt of an annualised salary. Accordingly, I am satisfied that a binding finding of fact made in relation to the subject of the residual dispute will not necessarily re-determine any aspect of the first decision.
Significantly, the Corporation’s interpretation that an entitlement to a day in lieu arose only when an employee undertook Immediate Standby on a public holiday falling on a weekend was raised by the Corporation as early as 24 March 2022, prior to the filing of this application in the Commission on 14 April 2022.[7] The Corporation also sought to raise this as a question for determination in the first decision but the parties, with the assistance of the Commission following conciliation, agreed to arbitrate only the primary issue concerning whether the entitlement in clause 4.6.4 was satisfied by the receipt of the annualised salary.
It is not in contest between the parties that, while the Agreement was replaced by the Goulburn-Murray Rural Water Corporation Enterprise Agreement 2021 with effect from 26 April 2022,[8] the Commission retains jurisdiction to arbitrate the matter under the dispute resolution procedure of the Agreement on the basis that the application to the Commission was made prior to the Agreement ceasing operation.[9]
I am satisfied that the Commission remains seized of jurisdiction to deal with the residual dispute on the basis that (a) the dispute resolution term does not prohibit a secondary arbitration, (b) the re-exercise of the power will not necessarily re-determine any aspect of the first decision (above at [12]), (c) the residual dispute forms part of the “dispute” raised pursuant to s 739(4) (above at [13]), and (d) the jurisdictional prerequisites for the dispute to be arbitrated are satisfied (above at [14]).
The residual dispute was not resolved following a further conference. Consequently, directions dated 3 August 2023 required the parties to file and serve proposed questions for determination of the residual dispute. There was substantial correspondence between Chambers and the parties to finalise the questions for determination. On 11 August 2023, Mr Jardine filed submissions in accordance with the 3 August 2023 directions but prior to the resolution of the questions. Upon the questions being finalised, Mr Jardine was invited to resubmit his submissions. Mr Jardine elected not to do so on the basis that his answers remained the same.
The parties agreed that the question for determination of the residual dispute is as follows:
(1)With respect to clause 4.6.4 of Part 4 of the Goulburn Murray Rural Water Corporation Enterprise Agreement 2020 as the clause applies to Electrical/Automation employees covered by the Agreement:
(a)Is the entitlement engaged when an employee has undertaken immediate standby on a public holiday which falls on a Saturday or a Sunday when not rostered on duty, or, when an employee has undertaken immediate standby on a public holiday which falls on any day when not rostered on duty?
(b) For the purposes of the phrase “when not rostered on duty,” is an employee “not rostered on duty” when the employee is not rostered on their ordinary hours roster, or, is an employee “not rostered on duty” when the employee is not rostered on the “Standby Rosters” identified in clause 4.6.2?
Question (1)(a) reflects the issue as it arose from the Corporation’s initial interpretation discussed at [12]-[13] of this decision. Question (1)(b) reflects the issue as it was advanced during submissions for the residual dispute.
The Agreement
Clause 4.6 of the Agreement provides as follows:
4.6 STANDBY – IMMEDIATE
4.6.1Where the Corporation requires an Employee to be on Immediate Standby, the Employee will be immediately contactable and ensure they can respond to any event in the most appropriate manner within 10 minutes.
4.6.2Employees must be available to work in Standby Rosters established by their individual work units.
4.6.3Employees not in receipt of an Allowance pursuant to the Appendix to this Agreement, or an Employee in receipt of an Allowance which does not include Immediate Standby, and who agrees to undertake Immediate Standby or Employees required to undertake more Immediate Standby events than the agreed Roster shall be paid:
(a) Overnight until the commencement of work the next day shall be paid for one and one half hours at the rate of Band C3 in clause 6.1.1 of this Agreement.
(b) Overnight and the next day shall be paid for three hours at the rate of Band C3 in clause 6.1.1 of this Agreement.
(c) Overnight and the next day and night until the commencement of work after the next day shall be paid for four and one half hours at the rate of Band C3 in clause 6.1.1 of this Agreement.
4.6.4A day in lieu will be granted to compensate for undertaking Immediate Standby on a public holiday when not rostered on duty.
Principles of interpretation
The Full Court in James Cook University v Ridd[10] said as follows in relation to the proper approach to the interpretation of the Agreement:
(i) The starting point is the ordinary meaning of the words, read as a whole and in context (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362 at 378 (City of Wanneroo v Holmes); City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 at [53] (City of Wanneroo v AMACSU); WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 at [197] (WorkPac v Skene)).
(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” (Kucks v CSR Limited [1996] 66 IR 182 at 184 (Kucks v CSR); Shop Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16]; WorkPac v Skene at [197]). The interpretation “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose” (Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 at [2]).
(iii) Context is not confined to the words of the instrument surrounding the expression to be construed (City of Wanneroo v AMACSU at [53]). It may extend to “ … the entire document of which it is a part, or to other documents with which there is an association” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511 at 518 (Short v FW Hercus); Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth of Australia [1998] FCA 249; 82 FCR 175 at 178).
(iv) Context may include “ … ideas that gave rise to an expression in a document from which it has been taken” (Short v FW Hercus at 518).
(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 … ” (Short v FW Hercus at 518).
(vi) A generous construction is preferred over a strictly literal approach (Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499 at 503-504; City of Wanneroo v AMACSU at [57]), 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” (City of Wanneroo v Holmes at 380).
(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 (City of Wanneroo v Holmes at 378-379; WorkPac v Skene at [197]).
In addition, the Commission may be guided by the principle that the construction which gives all of the words work to do should be preferred.[11] However, enterprise agreements are not typically given the careful attention to form of an Act of Parliament and may express an intention understood in the relevant industry.[12]
Question 1(b)
It is useful to consider the questions in reverse. I therefore commence by considering the phrase “when not rostered on duty” in clause 4.6.4 (question 1(b)) before addressing when the entitlement to a day in lieu in that clause is engaged (question 1(a)).
Mr Jardine contends that, for the purposes of clause 4.6.4 of the Agreement, an employee is “not rostered on duty” when not rostered on their ordinary hours roster. In summary, Mr Jardine observes a distinction in the Agreement between “Standby” and “duty.” Standby is defined in the Agreement[13] and involves availability and readiness. Duty, it is submitted, refers to the attendance by the worker at a workplace to perform work.
Mr Jardine submits that Standby is not to be regarded as attendance for duty within the terms of the Agreement. Accordingly, for the purposes of constructing clause 4.6.4, an employee who is rostered to perform Standby is not rostered for duty. It therefore follows, on this interpretation, that the condition in clause 4.6.4 of being “not rostered for duty” does not refer to an employee who is not rostered on the Standby Roster. Rather, it refers to an employee who was not rostered to attend and perform their ordinary (or rostered) overtime hours of work.
The Corporation submits that it has historically interpreted and applied the words “when not rostered on duty” in clause 4.6.4 as meaning any roster, whether an ordinary hours roster or a Standby Roster. For the purposes of the residual dispute, the focus of the Corporation’s submissions is that the entitlement to a day in lieu conferred by clause 4.6.4 arises only where a relevant employee undertakes Immediate Standby on a public holiday when they not on the Immediate Standby Roster; that is, “on a different day than their Standby Roster or an additional day to backfill a colleague not able to undertake their rostered Immediate Standby.”
The Corporation relies upon the Goulburn-Murray Rural Water Authority Enterprise Agreement 2004 (2004 Agreement) in support of its position. The Corporation points specifically to clause 3.4 of Attachment 7 of the 2004 Agreement from which it says that it is evident that a day in lieu applied only to employees who undertook Immediate Standby as “one off” events.
Consideration
Standby is defined in clause 1.2.17 of the Agreement. The term refers to “the responsibility to be immediately contactable and to initiate the appropriate response and proactively monitor the Corporation's operational systems.” The Agreement contemplates two categories of Standby – general (clause 4.5) and immediate (clause 4.6) with conditions attaching to each type of Standby for certain groups of employees.
With the exception of specific obligations applying to particular groups of employees in the Appendix of the Agreement, employees undertaking Standby have the responsibility to (a) be immediately contactable, (b) initiate the appropriate response, and (c) “proactively monitor” the Corporation’s operational systems.[14]
The responsibility to be immediately contactable is taken to mean what it says and is not in dispute. The “appropriate response” will vary depending on the type of employee and the type of Standby. Relevantly, employees undertaking Immediate Standby must respond to an event within 10 minutes and employees undertaking General Standby must respond to an event within 60 minutes.[15] Both types of Standby require an employee to be capable of addressing issues, which may involve moving to a particular location, within a short timeframe. The responsibility of the employee to “proactively monitor” operational systems establishes an ongoing proactive responsibility. There was no evidence or submissions advanced which address what proactively monitoring of the systems entails. However, it is apparent that Immediate Standby in particular involves a significant level of intrusion on an employee’s liberty to arrange their time.
Pursuant to clauses 4.5.1 and 4.6.2, Standby Rosters are established for both immediate and general Standby. Consistent with the view expressed in the first decision,[16] as a matter of interpretation and on the evidence,[17] Standby Rosters may be contrasted with the manner in which a relevant employee’s ordinary hours or rostered overtime hours (ordinary/rostered overtime hours of work) are allocated or performed pursuant to the Agreement.
Clause 4.1 concerns “maximum weekly hours of work.” The chapeau of clause 4.1.1 provides that an employee’s ordinary weekly hours of work are as set out in (a) to (d) of that sub-clause, unless varied by the Appendix to the Agreement. For an employee who is in receipt of an allowance that incorporates penalties, loading and overtime as outlined in the Agreement’s Appendix, clause 4.1.1(c) provides that ordinary weekly hours of work are “hours as rostered for relevant work group.” It is noted that, unlike some employees addressed in the Appendix to the Agreement, the Appendix for Electrical Automation employees does not specify a roster.[18]
In the context of the first decision, it was submitted by Mr Jardine that the Electrical Automation employees do not work “to any fixed roster imposed by the [Corporation]” but rather “work a regular 38-hour week in accordance with clause 4.1 of the Agreement plus one-hour extra overtime each week day.”[19] This aligns with Mr Jardine’s evidence that when he commenced employment, he was told to “manage his work” on the basis that he worked one hour of overtime a day.[20] The Corporation submitted that the employees’ “standard roster is 38 hours Monday to Friday plus standby for overnight and weekend emergency repairs over a 7 day period…”[21]
Consistent with Mr Jardine’s evidence that he worked one hour of overtime each weekday, clause 4.2.1 provides that “[a]ll Employees covered by this Agreement must reasonably be available to work both rostered and unplanned overtime in accordance with the requirements of his or her work unit.” I also note that clause 4.8.2, and clause 6.3 of the Appendix, assume the rostering of Electrical Automation employees for afternoon shifts. There is no evidence of a recorded ordinary hours/rostered overtime hours roster for Electrical Automation employees.
The absence of a recorded roster applicable to Electrical Automation employees in the Appendix is immaterial to the determination of the residual dispute. Clause 4.1.1(c) of the Agreement classifies any employee who is in receipt of an allowance that incorporates penalties, loading and overtime, as outlined in the Appendix, as working “hours as rostered.” I consider that where an Electrical Automation employee in receipt of an allowance performs work which constitutes their ordinary weekly hours of work in accordance with clause 4.1.1(c), then the employee is rostered on duty for the purposes of their ordinary weekly hours of work.
Having regard to the above matters, I find that the Standby Roster referred to in question 1(b) is a roster which allocates Standby, a type of work under the Agreement which is mutually exclusive to an employee’s ordinary/rostered overtime hours of work. Both types of work are separately allocated to Electrical Automation employees by the Corporation. Electrical Automation employees in receipt of an allowance are taken by the Agreement to be rostered on their “ordinary hours roster” as that term is used in question 1(b) when they perform their ordinary/rostered overtime hours of work, regardless of the Corporation’s actual practices.
Against this background, I turn to consider the clause in contest. On Mr Jardine’s construction, the qualifying condition in clause 4.6.4 of being “not rostered on duty” refers to an employee not rostered to attend and perform their ordinary/rostered overtime hours of work. From the Corporation’s perspective, the term “not rostered on duty” means an employee not rostered on the Immediate Standby Roster.
Mr Jardine emphasises that the purpose of clause 4.6.4 is to preserve the entitlement in the National Employment Standards (NES) to be absent on a public holiday. However, noting that the NES does not contemplate the performance out of hours duties, I regard the evident purpose of the entitlement in clause 4.6.4 to provide compensation for the performance of Immediate Standby on a public holiday when not rostered on duty. Clause 4.6.4 recognises that in undertaking Immediate Standby on a public holiday, an employee is carrying out responsibilities that interfere with their entitlement to be absent from work.
For the reasons that follow, I do not consider the Corporation’s construction is to be preferred. At the outset, I note that the Corporation’s historical application of the clause is not relevant to the construction task.
The Corporation’s contention that clause 4.6.4 should be read as providing that “a day in lieu will be granted to compensate for undertaking Immediate Standby on a public holiday when not rostered on an Immediate Standby roster” is not arrived at by any meaningful construction of the phrase “when not rostered on duty” in clause 4.6.4.
To the extent that the Corporation relies upon the 2004 Agreement in support of its position, I do not accept that the relied on provisions of the 2004 Agreement should inform the interpretation of the Agreement before me. In any case, the Corporation’s contention that clause 3.4 of Attachment 7 of the 2004 Agreement limits the entitlement to a day in lieu to employees performing “one off” events of Immediate Standby is not borne out. I observe that clause 3.4 of Attachment 7 corresponds with clause 4.6.4 of the Agreement and grants a day in lieu “to compensate for undertaking Immediate Standby on a public holiday when not rostered on duty” (emphasis added). A separate provision, clause 3.3 of Attachment 7, refers to employees who work Immediate Standby as one off events. The category of employees entitled to a day off in lieu pursuant to clause 3.4 are not described in the same terms as the employees who work “one off events” in clause 3.3. This appears to tell against the Corporation’s construction.
Further, the Corporation’s contextual argument that clause 4.6.4 proceeds clause 4.6.2 (which refers to “Standby Rosters”) and clause 4.6.3 (which refers to undertaking more Immediate Standby events than “the agreed Roster”) fails to resolve the specific reference in clause 4.6.4 to an employee not being rostered “on duty.”
Plainly, there is nothing in the text of clause 4.6.4 which confines the phrase “when not rostered on duty” to the Immediate Standby Roster. A more limited reading of the clause as urged by the Corporation would not be consistent with the evident purpose of the clause identified at [37] above. Employees performing Immediate Standby on a public holiday when not rostered to perform their ordinary/rostered overtime hours of work suffer the same incursion upon their public holiday absence as employees who backfill an Immediate Standby shift when not on the Immediate Standby Roster.
Moreover, the Corporation’s construction fails to resolve a key practical scenario capable of arising under the Agreement: where, on a public holiday, an employee is rostered to perform ordinary/rostered overtime hours of work and is also requested to backfill an Immediate Standby shift when not on the Immediate Standby Roster. The Corporation accepts in its written submissions that an employee may undertake Standby in addition to their ordinary hours of work on a day. The Corporation’s construction would result in such an employee being entitled to a day in lieu, regardless of the fact that the employee performed ordinary/rostered overtime hours on that day. However, such an employee would have foregone their right to be absent on the public holiday as a consequence of the performance of ordinary/rostered overtime hours, undermining the basis for the entitlement in clause 4.6.4 having regard to its evident purpose. In such a case, the employee has foregone their right to be absent on the public holiday by the performance of ordinary/rostered overtime work, such that they cannot be said to be “not rostered on duty.” In my view, this practical illogicality is the most significant indicator of a constructional preference with respect to the language “when not rostered on duty” and tells against the Corporation’s construction. No such deficiency can be identified on Mr Jardine’s construction.
The answer to question 1(b) is that for the purposes of the phrase “when not rostered on duty,” an employee is not rostered on duty when not rostered on their ordinary hours roster.
Question (1)(a)
Mr Jardine submits that question 1(a) poses two alternative constructions of clause 4.6.4: firstly, the day in lieu is given when the employee has performed an Immediate Standby shift, on a public holiday, when they are not rostered on duty, and the day is a Saturday or Sunday; secondly, the day in lieu is given when the employee has performed an Immediate Standby shift, on a public holiday, when they are not rostered on duty, regardless of the day of the week on which the public holiday falls. Mr Jardine’s position is that the second of these constructions is correct. Mr Jardine says that there is no basis in the language of the clause to read in an additional condition or restriction upon the entitlement.
Mr Jardine relies on his uncontested evidence that, as an Electrical Automation employee, he was not ordinarily required to perform ordinary/rostered overtime hours of work either on weekends or on public holidays falling during the week, but was entitled to be absent on those days. Mr Jardine submits that he could not have been “rostered” on duty on public holidays. His roster cycle did not require the performance of his ordinary duties on those days.
The Corporation submits that Standby, including Immediate Standby, would be undertaken by employees on weekdays (when the employees also performed ordinary hours) and on weekends (when the employees did not perform ordinary hours).
The Corporation considers that the intention of clause 4.6.4 is to provide a day in lieu to an employee who undertakes Immediate Standby on a day on which the employee does not perform ordinary hours and would otherwise be entitled to pay under clause 7.3.6 of the Agreement or the concurrent NES entitlement in s 116. This intention, it is submitted, addresses the case where an employee performs Immediate Standby on a public holiday which falls on a weekend as the employee would suffer the inconvenience of performing Immediate Standby without the benefit of the public holiday pay.
The Corporation contends that an employee who performs Immediate Standby on a public holiday that falls on a weekday already enjoys the benefit of ordinary pay for that day. The provision of a day in lieu would require a double payment to the employee.
The Corporation rejects Mr Jardine’s position that the Agreement protects the entitlement to absence from work which cannot be compensated in monetary terms. The Corporation submits that Mr Jardine’s position in this respect is not sustainable, noting clause 7.1.9 of the Agreement, which provides for annual leave to be cashed out. Further, the Corporation relies on the General Standby clause in 4.5 of the Agreement which does not provide for a day in lieu including when recalled to duty on a public holiday. Rather, where there is recall, clause 4.5.5(c) provides for financial compensation. The Corporation further relies on the definition of “Roster” in clause 1.2.16 and submits that clause 4.6.4 should be “interpreted accordingly.”
Mr Jardine rejects the Corporation’s characterisation of the entitlement as one which seeks to compensate employees for the absence of public holiday pay. Mr Jardine suggests that clause 4.6.4 could have been framed so as to provide a monetary entitlement for undertaking Immediate Standby on a public holiday, but it does not. Further, Mr Jardine submits that there is nothing extraordinary or undesirable about employees being compensated with something other than ordinary rates or an allowance.
Consideration
Public holidays may fall on a particular date each year. Public holidays may also fall on a particular day (i.e., Monday, first Friday of a month etc.) each year which may not be the same date. Certain public holidays are given the meaning of a public holiday under the NES by express inclusion in s 115(a) of the Act, and certain public holidays are given the meaning of a public holiday under the NES through the operation of s 115(b). Section 115(b) provides that State or Territory declared public holidays are public holidays for the purposes of the NES.
The Agreement covers employees performing work in Victoria. In Victoria, New Year’s Day, Australia Day, Easter Saturday, Easter Sunday, ANZAC Day, Christmas Day and Boxing Day are the public holidays which are capable of falling on a weekend. Labour Day, Good Friday, Easter Monday, the King’s Birthday, the Friday before the AFL Grand Final and Melbourne Cup Day fall on either a Monday, Tuesday or a Friday. There may also be supplementary public holidays which arise where the public holidays which may fall on a weekend day do fall on a weekend day. These supplementary public holidays are typically taken on the next working day after the weekend the public holiday falls.[22] Further, in the case of Australia Day, where 26 January falls on a weekend the public holiday is taken to fall on the next Monday and there is no supplementary public holiday.[23]
Clause 7.3.2(a) of the Agreement mostly reflects the meaning of public holiday provided for in the NES where Victorian law operates. However, the meaning of “public holiday” under clause 4.6.4 has not been in dispute between the parties and was not agitated in the proceedings. It suffices to observe that the “public holidays” in clause 7.3.2(a) largely reflect the NES and, as such, are capable of falling on a weekend, or not, as per the list identified above at [53].
There are three conditions to the entitlement in clause 4.6.4. An employee must be (a) undertaking Immediate Standby, (b) on a public holiday, and (c) when not rostered on duty.
The Corporation’s contention that an employee is only capable of being “not rostered on duty” on a weekend because they ordinarily work Monday to Friday is rejected. There is no support for such an understanding of the Agreement. Rather, as discussed in respect of question 1(b) above, clause 4.1.1(c) unambiguously identifies that Electrical Automation employees in receipt of an allowance pursuant to the Appendix work “hours as rostered.” They may also work rostered or unplanned overtime (clause 4.2.1), or rostered shift work (clause 4.8.2 and the Appendix, clause 6.3). The fact that the Corporation’s practice may be that these employees work their ordinary weekly hours and rostered overtime within a span of hours between Monday to Friday excluding public holidays is irrelevant to the proper interpretation of the Agreement. An employee is “not rostered on duty” when they are not performing ordinary/rostered overtime work because that work is assumed by the Agreement to be work that is “rostered.”
To the extent the Corporation contends that the word “rostered” in clause 4.6.4 when read against the definition of “roster” in clause 1.2.16 establishes that an employee is only capable of being “not rostered on duty” on weekends, it is rejected. The word “roster” is defined in clause 1.2.16 to mean “a fixed ordinary work cycle.” However, the actual word used in clause 4.6.4 is “rostered.” There is no basis to ascribe the meaning of the word “roster” in clause 1.2.16 to the verb “rostered” in clause 4.6.4.
If the Immediate Standby is undertaken on a public holiday identified in clause 7.3.2 of the Agreement or the NES, where relevant, the condition is met. Public holidays may fall on a weekend or on a weekday. The answer to question (1)(a) is that the entitlement in clause 4.6.4 is engaged when an employee undertakes Immediate Standby on a public holiday which falls on any day when not rostered on duty.
DEPUTY PRESIDENT
Hearing details:
Matter determined on the papers
Final submissions:
Applicant, 1 September 2023
Respondent, 30 August 2023
[1] [2023] FWC 127
[2] Construction, Forestry, Maritime, Mining and Energy Union & others v Falcon Mining Pty Ltd[2022] FWCFB 93
[3] Ibid at [37]
[4] R v Isaac; Ex parte State Electricity Commission (Vic) (1978) 140 CLR 615 at CLR, 619 and 627; however, it must be the case that a dispute is a single dispute and not a series of disputes, see, Re Australian Education Union; Ex parte Victoria [1995] HCA 71 at [17] of the reasons of Dawson J
[5] Acts Interpretation Act 1901 (Cth) s 33(1); Minister for Immigration and Border Protection v Makasa [2021] HCA 1 at [45]-[47] and the cases cited therein
[6] Agreement, cl 2.6.5(d)
[7] Form F10 at 2.1, [7] referring to email from Ms Glenda Smith, General Manager, People Culture and Safety Goulburn-Murray Water dated 24 March 2022
[8] AE515729; [2022] FWCA 1338 at [4]
[9] Construction, Forestry, Maritime, Mining and Energy Union & others v Falcon Mining Pty Ltd[2022] FWCFB 93
[10] [2020] FCAFC 123 at [65]
[11] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71]; Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (MV Portland Case) (No 2) [2020] FCA 1138 at [33]
[12] WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [197]
[13] Clause 1.2.17
[14] Agreement, cl 1.2.17
[15] Agreement, cll 4.5.2 and 4.6.1
[16] [2023] FWC 127 at [43]
[17] Court Book (CB) 241-253
[18] See for example Part 8 of the Appendix to the Agreement regarding Dams employees
[19] CB 214
[20] CB 153 at [11]
[21] CB 229
[22] Noting, however, Boxing Day may give rise to a supplementary public holiday on a Tuesday if Christmas falls on a Saturday
[23] Public Holidays Act 1993 (Vic) s 6
Printed by authority of the Commonwealth Government Printer
<PR766635>
0
17
0