Paul Jardine v Goulburn-Murray Rural Water Corporation T/A Goulburn-Murray Water
[2023] FWC 127
•17 JANUARY 2023
| [2023] FWC 127 |
| 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, 17 JANUARY 2023 |
Application to deal with a dispute arising under an enterprise agreement.
This decision concerns an application by Mr Paul Jardine 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).
Goulburn-Murray Rural Water Corporation T/A Goulburn-Murray Water (Corporation), Mr Jardine’s employer, is established pursuant to s 85(1) of the Water Act 1989 (Vic). The Corporation is Australia’s largest rural water corporation, and it manages Australia’s largest irrigation delivery network. It operates over an area of approximately 68 thousand square kilometres from Dartmouth to Mildura (East to West) and Mildura to Newlyn (North to South).
The dispute relates to employees of the Corporation engaged as automation technicians and electricians in the Electrical Automation group. The issue concerns whether clause 6.1 of the Appendix to the Agreement, which provides for the payment of an annualised allowance, includes the entitlement to a day off lieu provided to employees undertaking immediate standby on a public holiday when not rostered on duty pursuant to clause 4.6.4 of the Agreement.
Jurisdiction and the issue for determination
Following two attempts at conciliation, the was no resolution to the dispute. The parties agreed that the Commission should determine the following question in resolution of the application:
On a proper construction of the Goulburn-Murray Rural Water Corporation Enterprise Agreement 2020 (Agreement), were workers employed as Electrical/Automation employees who received an allowance pursuant to clause 6.1 of the Appendix to the Agreement 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.
While the Agreement was replaced by the Goulburn-Murray Rural Water Corporation Enterprise Agreement 2021 with effect from 26 April 2022,[1] the parties do not dispute that the Commission has jurisdiction to arbitrate the matter under the dispute resolution procedure of the Agreement, notwithstanding that the Agreement ceased to operate upon the approval of the successor agreement. I accept that this reflects the prominent interpretation of s 739 of the Act.[2]
Accordingly, the pre-requisites to the Commission’s involvement having been followed, I am satisfied that the Commission is empowered to resolve the dispute by determination of the agreed question in accordance with the dispute settling procedures at clause 2.7 of the Agreement and s 739 of the Act.
The Agreement
The Agreement commenced operation on 9 November 2020 and passed its nominal expiry date on 15 June 2021.[3] The Agreement operates to the exclusion of any award that would otherwise apply to the work covered by the Agreement.[4]
The Agreement covers and is binding upon the Corporation, its employees (excluding those that are subject to Victorian Public Entity Executive employment contracts), the Australian Workers’ Union and the Community and Public Sector Union. In these proceedings, Mr Jardine is represented by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (CEPU). Although not covered by the Agreement, the CEPU represents the interests of Mr Jardine and other members of the Electrical Automation group.
Clause 4.6 of the Agreement, of which disputed clause 4.6.4 forms part, 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.
Clause 4.6.3 refers to the “Appendix to this Agreement.” It is not in dispute that the relevant part of the Appendix is clause 6.1. Clause 6.1 of the Appendix is set out below:
6. ELECTRICAL/ AUTOMATION EMPLOYEES ALLOWANCE PROVISIONS
6.1The Allowance rates include all entitlements to additional hours loading, roster days off time loading, out of hours standby,(which includes immediate standby during the period 15 August to 15 May and general standby for the period 16 May to 14 August) weekend or public holiday, additional hours, including attendance at meetings or functions outside usual hours of duty but does not include Extraordinary Events for Electrical / Automation Employees as described in sub clause 6.5.1 of this Appendix.
The successor to the Agreement does not contain a provision in terms such as at clauses 4.6.4 of the Agreement and 6.1 of the Appendix to the Agreement.
Background
The Corporation employs three teams totalling approximately 19 electricians and automation technicians. These employees provide electrical and mechanical services to the Corporation’s water delivery teams, who are accountable for irrigation services and associated assets.[5] The dispute concerns these electrician and automation technicians employed in the Electrical Automation group.
Mr Jardine is a qualified A grade mechanic and qualified A grade electrician. He commenced employment with the Corporation in 2008 as an Electrical Technical Officer (electrician)[6] and has worked in the Electrical Automation Group since about 2010. He is a permanent full-time employee. In 2020, Mr Jardine commenced performing the role of Electrical Team Lead.[7] He is a CEPU delegate for the Electrical Automation workers employed by the Corporation.
The parties refer to the allowance interchangeably as an “annualised salary,” “allowance” or “annualised allowance.”[8] This is consistent with clause 6.1 of the Appendix to the Agreement which refers to the “Allowance provisions” for Electrical Automation employees.
During negotiations for the successor enterprise agreement referred to at [5] of this decision, Mr Jardine raised that the Electrical Automation group had not received the benefit said to be provided by clause 4.6.4 of the Agreement to a “day in lieu.” By email dated 18 February 2022, Mr Jardine enquired whether the Electrical Automation group qualified for the benefit and if so, whether application of the clause to the group should be backdated.[9]
The Corporation’s People, Culture and Safety General Manager, Ms Glenda Smith responded to Mr Jardine on 16 March 2022. For relevant purposes it is sufficient to note that Ms Smith advised that the day in lieu referred to in clause 4.6.4 of the Agreement was covered by the annualised allowance received by the Electrical Automation group.[10]
It is apparent that Mr Jardine did not accept the response provided by Ms Smith and the matter was escalated to CEPU official, Mr Aaron Douglass. However, the question of whether Electrical Automation employees were entitled to receive a day in lieu, in the circumstances prescribed by clause 4.6.4, remained unresolved.
Contentions
Mr Jardine’s position is that the answer to the question posed for determination is “yes;” the Electrical Automation employees who received an allowance pursuant to clause 6.1 of the Appendix to the Agreement are entitled to a day in lieu pursuant to clause 4.6.4 for undertaking immediate standby on a public holiday on a day when not rostered on duty.
Mr Jardine contends that on its proper construction, clause 6.1 of the Appendix provides for the payment of an allowance in respect of monetary entitlements only and leaves undisturbed other substantive entitlements such as the day in lieu. Mr Jardine submits that the allowance is not designed to extinguish non-monetary entitlements employees otherwise enjoy. Mr Jardine says that this interpretation is (a) consistent with the plain words of clause 4.6.4, (b) supported by a reading of clause 4.6.4 in the context in which the clause operates, (c) consistent with the language of clause 6.1 of the Appendix, (d) supported by the use of language elsewhere of the Appendix, (e) consistent with the overall content and operation of clause 6.1 of the Appendix, and (f) provides for harmonious operation of the Agreement, consistently with the protections in the National Employment Standards (NES).
The Corporation’s position is that “…all entitlements to…” “out of hours standby,” “…weekend or public holiday, additional hours” must mean just that; that the allowance compensates the relevant employees for all entitlements – whether these are of a monetary or non-monetary nature, including any entitlement to a day in lieu as provided for in clause 4.6.4 of the Agreement. In this sense, the Corporation describes the annualised allowance as "all purpose.”
The Corporation submits that there is no basis or justification for distinguishing between monetary and non-monetary entitlements as Mr Jardine has purported to do. The Corporation contends that Mr Jardine is seeking to import words into a provision in the Agreement where they do not exist and where such a provision is not ambiguous.
The Corporation submits that there is only one exception to the allowance not including all entitlements, namely in respect of “Extraordinary Events.” The Corporation points to clause 6.1 of the Appendix which provides “The Allowance rates include all entitlements to additional hours loading, rostered days off time loading, out of hours standby…but does not include Extraordinary Events for Electrical/Automation Employees as described in subclause 6.5.1 of this Appendix.” Clause 6.5.1 of the Appendix provides as follows:
6.5.1Extraordinary Events for Electrical/Automation Employees shall include major faults or repair works, such as radio communication breakdown or failure of a major offtake, where extended and repeated hours of repair are required during a weekend. During the week, it may also include continuous or repeated activities requiring extended hours of repair work throughout the night to minimise major business disruptions.
The Corporation further submits that there are eight different employee groups and where the allowance does not include a particular entitlement, the entitlement is specifically excluded. The Corporation points to the following in support of this position:
(a) Clause 1.7.6 of the Appendix, which relates to Water Services Operations employees. These employees receive an allowance, but remain entitled to a day in lieu for public holidays.
(b) Clause 6.5.1 of the Appendix – as noted at [23] above, this provides for additional payments for overtime for Extraordinary Events for Electrical Automation employees.
(c) Clause 8 of the Appendix concerning Dams employees includes the phrase “weekend or public holiday,” but this is not the case in respect of all categories of employees.
The Corporation contends that the differences set out above can be seen in the different dollar values for the allowance. For instance, a C1 electrician receives an allowance of $24,565.86 (for a 3-man roster) which includes all entitlements except the “Extraordinary Events” overtime provided for in clause 6.5. By comparison, Dams employees receive an allowance of $19,553.00 for equivalent hours, but there are different criteria for claiming Extraordinary Events on top and the allowance does not include the separated delineated phrase “weekend or public holidays.”
Principles of interpretation
The parties each rely upon the decision of the Full Court in James Cook University v Ridd[11] 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 Corporation points to the principles of construction set out in AMWU v Berri[12] and the summary of that decision set out in United Firefighters Union of Australia v Emergency Services Telecommunications Authority T/A ESTA.[13]
Consideration
I commence by first considering the structure of the Agreement and by making the following general observations.
First, the application of particular entitlements to employees who are in receipt of an allowance in accordance with the Appendix to the Agreement is not dealt with in a consistent manner across the different employee cohorts covered by the Agreement. With respect to the Electrical Automation group, the text of clause 6.1 of the Appendix specifies that the “Allowance rates” are inclusive of the entitlements to which clause 6.1 refers, but not exhaustive. The effect of this structure is that the allowance operates in the following manner for Electrical Automation employees:
(a) an identified entitlement may be excluded from or included in the allowance pursuant to clause 6.1 of the Appendix;
(b) an identified entitlement may be included in the allowance by operation of a particular clause in the body of the Agreement; or
(c) an identified entitlement may be excluded from applying at all to an employee in receipt of an allowance by operation of a particular provision in the body of the Agreement.
The application of some entitlements to employees in receipt of an allowance is addressed simultaneously in both the Agreement and clause 6 of the Appendix. This is demonstrated, for instance, by the entitlement to additional hours loading (or overtime) which is expressly included in the allowance pursuant to clause 6.1 of the Appendix. It is also expressly “built into” the allowance for all employees in receipt of an allowance, pursuant to clause 4.2.2 of the Agreement.
Conversely, clause 4.7.1 of the Agreement expressly excludes the entitlement to payment for recall to duty when not on “Standby” from applying to any employee in receipt of an allowance. Notwithstanding this, the exclusion of the entitlement is not dealt with at all in respect of the Electrical Automation employees in clause 6 of the Appendix.
Second, the body of the Agreement and the Appendix are not drafted harmoniously. In this respect, it is useful to note the following examples:
(a) clause 4.8.1 of the Agreement provides that employees in receipt of an allowance pursuant to the Appendix are not entitled to a shift allowance. Despite this, clause 6 of the Appendix provides Electrical Automation employees with an entitlement to afternoon shift penalties (but is otherwise silent on night shift penalties which the Agreement otherwise provides for); and
(b) clause 4.3.7 of the Agreement provides that “[a]ny additional Recall events shall be compensated in accordance with the provisions of the Appendix to this Agreement.” However, clause 6 of the Appendix does not deal with compensation for recall whilst on standby in respect of Electrical and Automation employees.
The inconsistency issue is made more significant by the ambiguities in the drafting of the Agreement. The language used in clause 6.1 of the Appendix to describe what is included in the allowance rate is not specific and does not directly refer to any particular provision in the body of the Agreement. Further, certain entitlements in the body of the Agreement may not fall neatly within any one category in clause 6.1 of the Appendix. In this respect the Corporation submits that clause 4.6.4 is an entitlement that might be characterised as “out of hours standby,” “weekend or public holiday” and “additional hours.”[14]
Further, the drafting of the Agreement does not accurately organise entitlements. For example, the entitlement to be compensated for being recalled to duty while on standby is dealt with under the heading “Breaks” in clause 4.3.7.
There is no provision in the Agreement or Appendix which deals generally with inconsistencies between the body of the Agreement and the terms of the Appendix. The only clause which purports to address such inconsistencies is clause 8.1.2 of the Appendix which provides that “terms and conditions in this clause 8 shall prevail to the extent of any inconsistency over the remainder of this Agreement.” Clause 8.1.2 is confined in its scope to apply only to the Dams employees to whom clause 8 of the Appendix has application.
It follows that in order to give full effect to the terms of the Agreement,[15] the provisions in both the body of the Agreement and the Appendix must be considered simultaneously to correctly determine how the relevant allowance provision applies to the different cohorts of employees covered by the Agreement. It is also necessary to characterise a provision accurately with respect to the conditions and rights it maintains, as the organisation of the Agreement is apt to mislead.
To the extent that the Corporation contends that the Appendix is not ambiguous, that contention is rejected on a reading of the Agreement as a whole.
I also reject the Corporation’s submission that clause 6 of the Appendix is the sole reference necessary in the determination of what is included in and excluded from the allowance in clause 6 of the Appendix.[16] To read the Agreement in the manner contended by the Corporation would significantly diminish or negate the operation of a number of terms in the body of the Agreement and their application to the Electrical Automation employees.
Relatedly, the Corporation also made submissions at the hearing that the Appendix should be read as overruling the Agreement in the event of an inconsistency (or generally) because it was separately bargained for by the discrete employee cohorts. While I do not consider that there is such an inconsistency in the dispute before me, I do not accept the Corporation’s submission in this respect. There is significant specific text in the body of the Agreement which is relevant in the determination of whether employees in receipt of an allowance pursuant to the Appendix retain the benefit of certain entitlements. This extends to entitlements not otherwise expressly included in clause 6.1 of the Appendix, such as the entitlement to recall to duty when not on standby in clause 4.7.1 of the Agreement. The Agreement provides no basis for reading down or ignoring this text.
For completeness, I also do not consider that the absence of an express clause dealing with inconsistencies (such as clause 8.1.2 of the Appendix for Dams employees) in clause 6 of the Appendix allows for an inference to be drawn that the body of the Agreement should be given primacy in the event of any inconsistency.
Against these observations, I turn now to consider the application of clause 4.6.4 of the Agreement to Electrical Automation employees in receipt of an allowance pursuant to clause 6 of the Appendix.
Clause 1.2.17 of the Agreement defines “Standby.” It provides that 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). The scope and conditions of both categories of Standby are delineated by clauses 4.5 and 4.6 of the Agreement.
Clause 4.6 of the Agreement is titled “Standby – Immediate.” By clause 4.6.1, an employee is on immediate standby when the Corporation requires the employee to be “immediately contactable” and available to “respond to any event in the most appropriate manner within 10 minutes.” This can be contrasted with clause 4.5 which is titled “Standby – General”. By clause 4.5.2, “[w]hen on general Standby, an Employee will be immediately contactable and ensure they can respond to an event and/or return to the work location within 60 minutes.”
Clause 4.6.2 establishes an obligation on employees to be available to work in Standby Rosters established by their individual work units. The Agreement defines “Roster” at clause 1.2.16 as a “fixed ordinary work cycle.” It appears both as a matter of interpretation and on the evidence that the Standby Rosters are different to an employee’s usual roster under the Agreement.[17] For the purposes of this decision, noting the issue is not in contest, I am satisfied that “Standby Rosters” in clause 4.6.2 means the rosters in which immediate standby work is allocated to employees and that this is not in unreconcilable opposition to the definitions of “Standby” and “Roster” in clauses 1.2.16-1.2.17.
There is an entitlement to be paid an amount for undertaking immediate standby in clause 4.6.3(a)-(c) of the Agreement, but the entitlement is only provided to certain employees. I accept Mr Jardine’s submission that clause 4.6.3 identifies three categories of employees who are entitled to be paid an amount in accordance with the provision.
The first category is employees not in receipt of any sort of allowance under the Appendix to the Agreement (category 1 employees).
The second category is employees who are in receipt of an allowance which does “not include immediate standby” (category 2 employees). An example of a category 2 employee is a Water Services employee referred to in clause 1.9 of the Appendix, or a Construction and Maintenance employee referred to in clause 3.1 of the Appendix.
The third category, is “employees required to undertake more Immediate Standby events than the agreed Roster.” Mr Jardine submits that this must be read as a reference to employees who, unlike the earlier two categories, are in receipt of an allowance which includes immediate standby (category 3 employees). I accept this proposition, together with Mr Jardine’s submission that the term “events” in the context of category 3 employees is really a reference to “shifts.”[18]
It appears that a person may be a category 1 and a category 2 employee or a category 3 employee at the same time. However, I do not consider that the Agreement operates in such a way so as to provide a double-benefit to employees satisfying both categories. This is because such a benefit would be arbitrary and the construction irrational. In this respect, I consider the word “or” in clause 4.6.3 to be disjunctive.
Further, clause 4.5.5 of the Agreement, provides an entitlement to be paid an amount for undertaking a general standby shift but does not extend such entitlement to employees who undertake more general standby shifts than the “agreed Roster” in the manner contemplated by clause 4.6.3. Rather, clause 4.5.5 applies to “[e]mployees not in receipt of an Allowance pursuant to the Appendix of this Agreement who have completed their ordinary hours and are required to be on General Standby.” I note clause 4.5.4 expressly provides “[w]here an Employee is in receipt of an Allowance, provision for general Standby… has been built into the Allowance.”
I consider that the inclusion of category 3 employees in clause 4.6.3 of the Agreement operates to provide a mechanism for employees in receipt of an allowance pursuant to the Appendix which includes immediate standby to be paid an additional amount where those employees undertake more immediate standby shifts than the agreed roster. As a matter of construction, the allowance rates which include immediate standby must be read against clause 4.6.3 of the Agreement. It follows that the allowance rates which include immediate standby only reflect the amount of immediate standby in the agreed roster. I note that the Corporation did not make submissions as to the obvious inconsistency between its preferred construction of clause 6.1 of the Appendix and the entitlement of category 3 employees in clause 4.6.3 of the Agreement. Nevertheless, as observed above at [34]-[36], I do not consider that the Appendix should necessarily be given primacy over any provision in the body of the Agreement.
Clause 4.6.4 of the Agreement provides:
4.6.4A day in lieu will be granted to compensate for undertaking Immediate Standby on a public holiday when not rostered on duty.
Clause 4.6.4 contains three conditions. Firstly, the employee needs to be “not rostered on duty;” secondly, the immediate standby work must be undertaken on public holiday; and thirdly, the employee needs to undertake immediate standby (not general standby duties). If these three conditions are satisfied, then the employee is entitled to a day in lieu.
Plainly, there is nothing in the text of clause 4.6.4 which limits its application to any class of employee, including employees in receipt of an allowance pursuant to the Appendix. I am satisfied that the body of the Agreement does not exclude clause 4.6.4 from applying to Electrical Automation employees in receipt of an allowance pursuant to clause 6 of the Appendix. I note that it is uncontested that the Electrical Automation group actually perform immediate standby.
Clause 6 of the Appendix provides the specific allowance payable to Electrical Automation employees at clause 6.4.2.
Clause 6.1 of the Appendix establishes what is included in the “Allowance rates” payable. The drafting of clause 6.1 does not expressly refer to clause 4.6 of the Agreement. Rather, clause 6.1 relevantly provides that:
The Allowance rates include all entitlements to additional hours loading roster days off time loading, out of hours standby,(which includes immediate standby during the period 15 August to 15 May and general standby for the period 16 May to 14 August) weekend or public holiday, additional hours…
This drafting can be contrasted with, for instance, clause 2.1.1 of the Appendix in respect of Diversions Inspectors, and clause 8.3.1 of the Appendix in respect of Dams employees, both of which exclude the entitlement to general standby and immediate standby in clauses 4.5 and 4.6 in clear terms.
Having regard to the language of clause 6.1 of the Appendix, it is necessary to consider whether the entitlement in clause 4.6.4 of the Agreement is included in the allowance. The parties’ arguments at the hearing turned on what is meant by “include all entitlements to…out of hours standby.” The Corporation’s written submissions also highlight the words “weekend or public holiday” and “additional hours” in clause 6.1 of the Appendix.[19] It is necessary to consider these textual bases for the Corporation’s construction.
In my view, the “additional hours” basis can be readily disposed of. Clause 4.2 deals with “overtime/additional hours” and clause 4.2.2 provides an entitlement to additional hours which is appropriately characterised as an entitlement to the matter. The provision of a “day in lieu” for undertaking immediate standby is not sufficiently connected to “additional hours.”
In relation to “out of hours standby,” as discussed above at [41], the Agreement contemplates two types of “Standby”: immediate and general. It is not in contest, and I find, that both types of Standby are appropriately characterised as “out of hours standby” for the purposes of clause 6.1 of the Appendix. However, neither general standby nor immediate standby are “entitlements.” They are a type of shift involving the monitoring by an employee of operations and a requirement to be available to respond to events. There are rights and obligations which collectively give effect to these types of shifts under the Agreement.
In this respect, the language “all entitlements to” in clause 6.1 is significant. In my view, contrary to the Corporation’s submissions, it is inappropriate to read an entitlement “to” a particular matter as extending to any entitlement which has a connection with the matter. I accept that it is possible for more than one employee right to constitute the same type of “entitlement” for the purposes of clause 6.1 of the Appendix. Nevertheless, as earlier discussed, the appropriate manner to read clause 6.1 of the Appendix is against the Agreement as a whole, not as the sole source of the scope of the allowance provision. It is therefore necessary to characterise clause 4.6.4 to ascertain whether it falls within the scope of clause 6.1 of the Appendix.
While clause 4.6.4 of the Agreement falls within the immediate standby provision, it is not readily characterisable as an entitlement to out of hours standby. As raised by the Corporation, the entitlement may be characterised as an entitlement to “public holiday.” It is useful to make some general remarks in relation to “public holiday” before returning to out of hours standby.
Clause 7.3.1 of the Agreement provides an “[e]ntitlement to be absent from employment” on a public holiday. By clause 7.3.6, employees are entitled to be paid for such an absence. Collectively, the entitlement to be absent on a public holiday with pay has the same effect as ss 114-116 of the Act which represents part of the NES with respect to public holidays.[20] While these provisions are capable of being permitted in the Agreement by operation of s 55(4)-(5) of the Act,[21] the NES cannot be displaced or excluded. A provision of an enterprise agreement is invalid to the extent it excludes the NES.
As a matter of statutory context, the reference to “all entitlements to…public holiday” in clause 6.1 of the Appendix cannot be read as a reference to the entitlements in clause 7.3 of the Agreement, because this would amount to a prohibited exclusion of provisions of the NES.[22] Instead, it can be sensibly read as reflecting the rates payable to employees undertaking work on public holidays, such as clauses 4.2.2(c) and 4.5.5(c) of the Agreement. This is consistent with the framing of the matter as “weekend or public holiday” in clause 6.1 of the Appendix, as weekend rates are similarly dealt with in clauses 4.2.2 and 4.5.5.
In relation to the use of the phrase “out of hours standby” in clause 6.1 of the Appendix, clause 4.6.3 of the Agreement establishes a monetary entitlement which is payable to category 1, category 2 and category 3 employees in return for the performance of an immediate standby shift. Similarly, clause 4.5.5 provides an entitlement to be paid an amount for undertaking a general standby shift. In my view, these two provisions are all that is intended to be included by the words “all entitlements to… out of hours standby” in clause 6.1 of the Appendix. This is so because the two provisions establish the amounts which an employee working pursuant to the immediate standby or general standby rosters is entitled to be paid. Accordingly, they comfortably fall within the language all entitlements to out of hours standby. It is noted that both clauses 4.5.5 and 4.6.3 similarly exclude those in receipt of an allowance from the scope of the provision.
I do not consider that clause 4.6.4 is an “entitlement to… out of hours standby” or “public holiday” for the purposes of clause 6.1 of the Appendix. The entitlement to a “day in lieu” in clause 4.6.4 suggests a preservation of the day of absence from work ordinarily provided by a public holiday where an employee undertakes an immediate standby shift when not rostered on duty. The right obtained by an employee satisfying the conditions in clause 4.6.4 is therefore concerned with maintaining the employee’s public holiday absences, which is significant in the proper characterisation of the entitlement.
Clause 7.3 of the Agreement (Public Holidays) is therefore relevant to the proper characterisation of clause 4.6.4. Clause 7.3.2 defines public holidays for the purposes of the Agreement. Clause 7.3.1 provides an entitlement to be absent on public holidays except where the employee’s roster and the Corporations’ normal operations require the work. Clause 4.6.4 can therefore be read as an extension of the clause 7.3.1 provisions in this respect. It provides for an entitlement to a day in lieu where an employee agrees to undertake an immediate standby shift when they would normally be entitled to be absent in accordance with clause 7.3.1.
Clause 4.6.4 is an entitlement which relates to out of hours standby, but it is not an entitlement to out of hours standby. Rather, it is more appropriately characterised as a concomitant entitlement to the NES entitlement to be absent on a public holiday. As Mr Jardine argues, clause 4.6.4 might sensibly be read as being directed towards the reasonableness requirement in s 114(4) of the Act.[23] In any event, the entitlement, properly characterised, is to a day in lieu to compensate for the sacrifice of NES public holiday entitlements included in clause 7.3 of the Agreement. The public holiday entitlements in clause 7.3 are not capable of being included in the annualised allowance. It is for these reasons that clause 4.6.4 cannot be interpreted as being an entitlement to “out of hours standby” or “public holiday” in the context of clause 6 of the Appendix.
The Corporation submits that the employees remain entitled to refuse to work an additional immediate standby shift on a public holiday, but that the allowance rates appropriately compensate for the entitlement in clause 4.6.4 in any event. Insufficient evidence was provided to satisfy me of this proposition. Further, for the reasons expressed above at [50], category 3 employees in receipt of an allowance pursuant to the Appendix are entitled to be paid an amount for undertaking more immediate standby shifts than the agreed roster. It is open to infer that the allowance rates only incorporate the immediate standby shifts on the agreed roster. Any additional shifts must be compensated in accordance with clause 4.6.3. It follows that the entitlement in clause 4.6.4 which necessarily arises in circumstances where an employee is not rostered on duty is not reflected in the allowance rates.
Finally, the use of the word “all” in clause 6.1 of the Appendix means little other than to clarify that the group of entitlements referred to in clause 6.1 are captured by the allowance provision. The term “all” does not extend the meaning of the word “entitlements” such that clause 6.1 of the Appendix applies to any and all clauses related to that entitlement in the Agreement. The Corporation’s contention in this respect is rejected.
Conclusion
For the foregoing reasons, the answer to the agreed question is “yes.” On a proper construction of the Agreement, Electrical Automation employees who received an allowance pursuant to clause 6.1 of the Appendix were entitled to a day in lieu pursuant to clause 4.6.4 of that Agreement for undertaking immediate standby on a public holiday when not rostered on duty.
DEPUTY PRESIDENT
Appearances:
Ms L. Doust, of counsel, for the applicant
Mr G Katz, on behalf of the Corporation
Hearing details:
25 October 2022.
Melbourne (by Microsoft Teams)
[1] AE515729; [2022] FWCA 1338 at [4]
[2] Construction, Forestry, Maritime, Mining and Energy Union & others v Falcon Mining Pty Ltd[2022] FWCFB 93
[3] AE509427; [2020] FWCA 5860 at [6]
[4] Agreement, cl. 1.4.2
[5] Court Book (CB) 229 at [1]
[6] CB 152-153 at [5]
[7] CB 153 at [8]
[8] CB 233 at [7] and [9]
[9] CB 162
[10] CB 163
[11] [2020] FCAFC 123 at [65]
[12] [2017] FWCFB 3005; 268 IR 285 at [114]
[13] [2017] FWCFB 4537; 272 IR 384 at [35]
[14] CB 226 at [8]
[15] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381-82 (McHugh, Gummow, Kirby and Hayne JJ); Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (MV Portland Case) (No 2) [2020] FCA 1138 at [33]
[16] CB 226-227 at [8]-[10]
[17] CB 241-253
[18] See eg, clause 2.1.1(a) of the Appendix
[19] CB 226-227 at [7]-[10]
[20] Fair Work Act 2009 (Cth), ss 114-116
[21] It is noted that this is not intended to represent a view on the whether these provisions of the Agreement contravene the Act
[22] Re Canavan Building Pty Ltd[2014] FWCFB 3202 at [36]
[23] Fair Work Act 2009 (Cth), s 114
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