Scatchard v Metro Tasmania Pty Ltd
[2022] FedCFamC2G 53
•7 February 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Scatchard v Metro Tasmania Pty Ltd [2022] FedCFamC2G 53
File number(s): LNG 36 of 2021 Judgment of: JUDGE TAGLIERI Date of judgment: 7 February 2022 Catchwords: INDUSTRIAL LAW – Review of decision of Registrar – small claim for underpayment, Fair Work Act 2009 (Cth) – whether payment for Saturday work was to be at 200% of ordinary time – operation and interpretation of clause 21.9 of industrial agreement – hearing de novo – application allowed – respondent to pay the applicant $1,524.98. Legislation: Fair Work Act 2009 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Div 21.2, r.21.01Cases cited: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241
Australian Workers’ Union v Murrumbidgee Irrigation Ltd [2011] FWA 5306
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2011] FCA 1294
Construction, Forestry, Mining and Energy Union v State of Victoria [2013] FCA 445
CPB Contractors Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 70
Kucks v CSR Limited (1996) 66 IR 182
Royal Melbourne Institute of Technology v National Tertiary Education Industry Union (2011) 203 IR 294Division: Division 2 General Federal Law Number of paragraphs: 72 Date of last submission/s: 9 December 2021 Date of hearing: 2 December 2021 Place: Hobart Counsel for the Applicant: Ms Davis Solicitor for the Applicant: Office of the Australian Rail, Tram And Bus Industry Union Counsel for the Respondent: Ms Masters Solicitor for the Respondent: Edge Legal ORDERS
LNG 36 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JOHN SCATCHARD
Applicant
AND: METRO TASMANIA PTY LTD
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
7 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The Application for Review dated 19 November 2021 is allowed.
2.The Respondent pay the sum of $1,524.98 to the Applicant.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
INTRODUCTION
On 14 September 2021, John Scatchard (“the applicant”) filed an application for a small claim under the Fair Work Act 2009 (Cth) against his employer Metro Tasmania Proprietary Limited (“the respondent”).
The applicant's claim was that, by virtue of a breach of terms of the Enterprise Agreement (“EA”) applicable to his employment with the respondent, he was paid the incorrect rate of pay for certain hours of work he performed. The total of his claim was for $1,524.98.
On 8 October 2021 the respondent filed a Response. In effect, it contended that there had not been an underpayment and that the correct rate of pay had been used for the hours of work in question.
Ultimately, the dispute between the parties relates to whether certain hours of work undertaken on Saturdays by the applicant should be paid at 150% or 200% of the ordinary rate of pay.
Resolution of the ultimate issue depends on the interpretation to be given to the applicable EA.
ORIGINAL DETERMINATION AND ORDER
As this was a small claim, it was initially heard and determined by a Registrar on 12 November 2021, pursuant to delegations provided for in Rule 21.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (“the Rules”). The Registrar dismissed the claim on the basis that she preferred the interpretation of clause 21.9 of the EA which was advanced by the respondent.
THE REVIEW
On 19 November 2021, the applicant filed an Application for Review, pursuant to Division 21.2 of the Rules.
On 2 December 2021, the Application for Review proceeded to a hearing before me, at which each of the parties was represented. Ms Davis appeared for the applicant and Ms Masters for the respondent.
There were some matters that were agreed or not disputed. In particular that:
(a)The applicable EAs were the Metro Tasmania Bus Operators Enterprise Agreement 2013 and Metro Tasmania Bus Operators Enterprise Agreement 2016, and the relevant operative clause was clause 21.9. There had been no significant change to the terms of this clause in the relevant period to which the claim related which spanned the 2013 and 2016 versions of the EA.
(b)The claim related to 24 days of work undertaken by the applicant on Saturdays between 4 October 2015 and 15 March 2020.
(c)A memorandum of understanding was created between the employer and the Australian Rail, Tram And Bus Industry Union (“RTBU”) dated 12 December 2012, which related to weekend work at the respondent’s Burnie depot. It provided that bus operators such as the applicant could volunteer to work on Saturdays and that, if they did, pay would be at 150% of the ordinary rate for hours worked.
The parties’ affidavits were read into evidence unopposed, being:
·Affidavit of the applicant, affirmed 19 November 2021;
·Affidavit of David Snook, an employee of the respondent, affirmed 19 November 2021;
·Affidavit of Greg Swain, an Operations Officer of the respondent, affirmed 11 October 2021; and
·Affidavit of Greg Swain affirmed 2 December 2021.
The applicant had prepared a written outline of submissions dated 19 November 2021, which I have read. Ms Davis also made oral submissions expanding upon the applicant’s outline of submissions.
Ms Masters made oral submissions and referred to the contentions for the respondent set out in some detail in the Response filed 8 October 2021.
CLAUSE TO BE INTERPRETED
Clause 21.9 of the EAs were effectively identical in each of the 2013 and 2016 instruments with one exception, being that “(DOC)” does not appear in the 2013 version. Clause 21.9 of the 2016 version of the EA provides:
21.9 Working on a rostered day off (DOC)
Where a Bus Operator works on a rostered day off (DOC), the actual time worked shall be paid at:
•Saturday and Sunday or the second portion of any shift - double time;
•Public holiday - double time and a half;
•Any other day - time and a half for the first 3 hours and double time thereafter.
THE PARTIES’ CONTENTIONS
The Applicant
The applicant contended that the starting point of interpreting clause 21.9 was that the ordinary grammatical meaning of the words that should be given to the clause, but sight ought not be lost of of the fact that the task simply involves a search of what those who drafted the enterprise agreement intended.
The Court was referred to Madgwick J and the reasons in Kucks v CSR Limited (1996) 66 IR 182 at [184] (“Kucks Case”) relating to guiding principles for interpretation of awards. The applicant contended that the principles applied equally to interpretation of industrial agreements.[1]
[1] Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241.
The applicant argued the following sequential propositions that:
·If an employee had a rostered day off on a Saturday and they work that day, then the actual time worked is to be paid at double time pursuant to the terms of clause 21.9;
·The applicant was rostered to work five days a week Monday to Friday on what was referred to as the rolling roster;
·The Saturday and Sunday of each week were his allocated rostered days off and were marked as “off” on the roster; and
·The applicant worked on 24 Saturdays when he was rostered off by voluntarily signing up to work those days on a signup sheet placed next to his roster.
Accordingly, based on the propositions above, if a bus operator works on a rostered day off (DOC), then the actual time worked on Saturdays ought to be paid at double time.
I was referred to the meaning of “DOC” which is defined by clause 4 of the EAs as “day of cancelled”. It was argued that nothing in clause 21.9 distinguishes between a Saturday rostered day off due to cancelling occurring by agreement or at the employer's direction. Accordingly, the entitlement to 200% of the ordinary rate arises wherever there is a Saturday “off” and the bus operator works on that day whether by direction or voluntarily.
The applicant also made submissions as to why the Registrar’s decision at first instance was incorrect where she found that Saturdays were not a rostered day off, because the applicant had been rostered on.
As this is a hearing de novo, I do not need to be satisfied that the Registrar fell into error in some specific way. Rather, I must consider and determine the claim. In any event, I do not know the reasoning adopted by the Registrar as there was no transcript or written reasons for decision put before me.
Finally, the applicant pointed to the terms of the 2020 EA as reinforcing the contention argued concerning the interpretation of clause 21.9 of the 2013 and 2016 EAs. The 2020 EA provides that employees are now paid at double time for work on Saturdays which is routinely rostered and provided for pursuant to clause 26.
The Respondent
Paragraphs 3 to 21 of the Response include various contentions asserted as facts about establishment of a weekend roster for Saturday and Sunday work in Burnie for employees who volunteered to work on those days. Some of the assertions are consistent with the applicant’s case, namely that there was no compulsion or direction to work by the employer on the relevant 24 Saturdays the applicant worked. This is also consistent with the evidence of Mr Swain in his affidavits which were read for the purposes of the hearing.
The respondent specifically rejects the contention that the correct rate of pay was 200% of the ordinary rate when the applicant worked on the Saturdays in question. It argues that those Saturdays were not “rostered days off” as the applicant was rostered and marked as on.
It says that as the applicant voluntarily worked on each of the Saturdays, this did not amount to working on a rostered day off or day off cancelled as contemplated by clause 21.9. Further, the meaning of “rostered day off” in clause 4 is specifically defined as “a day off provided for in a roster”, clause 21.9 was not engaged. To be engaged, the employee’s roster had to show that the employee has that day “off."
The interpretation contended was said to be supported by the following reasoning process:
(a)The words used in clause 21.9, that suggest a present temporal element through the term “works on a rostered day off”;[2]
(b)“Roster” having a plain meaning in the Oxford English dictionary, meaning a list or plan showing the names of individuals or groups in any organisation, frequently including the rotation of their duties;[3]
(c)There were documents for the weekday rosters and separate documents for the weekend rosters showing names of employees when they perform duties, and neither roster showed the applicant as having a “day off" on the relevant Saturdays;[4]
(d)Two rosters were applicable at the relevant time, the weekday roster and weekend roster, and for the purposes of determining whether an employee is on a rostered day off when working on a Saturday, the weekend roster is the relevant roster for the purposes of clause 21.9;[5] and
(e)As the applicant was not “off” on the weekend roster, he was not on a rostered day off and was not entitled to be paid at 200%.[6]
[2] Response filed 8 October 2021 at [28].
[3] Response filed 8 October 2021 at [29]; Respondent’s Outline of Submissions filed 9 December 2021 at [6].
[4] Response filed 8 October 2021 at [30].
[5] Response filed 8 October 2021 at [31].
[6] Response filed 8 October 2021 at [34].
The respondent also rejected the contention by the applicant that when the applicant worked on a Saturday, that invoked “day off cancelled" within the meaning of the term in the EA. It was argued that DOC within the meaning of clause 4 of the EAs only meant when the employer unilaterally cancels the day off, as an employee cannot “cancel” their own day off. This interpretation of “cancelled” was said to be supported by two factors:
(1)the plain meaning of the word “cancelled" in the Oxford English dictionary; and
(2)that the EAs specifically provide for cancellation of a rostered day off in clause 22.4, which states:
Cancellation of Rostered days off
Whenever practicable, at least 12 hours (sic) notice of the cancellation of a Rostered day off shall be given. In order to meet unexpected emergencies or unforeseen circumstances, Metro, however, may call upon Bus Operators to work without such notice.
It was contended that the second sentence of this provision conveys that unilateral cancellation at the instigation of the employer is implicit in the meaning of “day off cancelled” under the EA.
The respondent also made submissions about the memorandum of understanding (“MOU”). Those submissions provide useful context to the lead up to the current claim and what had been informally agreed between the applicant’s union and the employer.
THE EVIDENCE
The applicant’s unchallenged evidence is as follows:
·At [13] – [14] of his affidavit affirmed 19 November 2021:[7]
[7] Affidavit of the applicant affirmed 19 November 2021.
13.From June 2008 to February 2021, I worked a five-day roster between Monday and Friday. During this time Saturday and Sundays were displayed on the roster with the words 'OFF' written against my name. Saturday and Sunday's (sic) were my two clear days off each week.
14.From June 2008 until the end of December 2012, I volunteered to work on a various Saturday shift. When I volunteered to work on a Saturday during this time, I was paid double time (200%) for all hours worked.
·He and other employees at the Burnie depot were not consulted about and did not agree to the terms of the MOU;[8]
[8] Affidavit of the applicant affirmed 19 November 2021 at [16].
·After the MOU was created:[9]
Greg Swain, Operations Manager at Burnie Depot posted a document on the noticeboard at the Burnie Depot next to the roster. This document allowed employees to write their name against Saturday shifts that they were willing to work. A new sheet would get posted next to the roster every 6 months for this to occur.
·From time to time he volunteered for shifts by writing his name on that document against the Saturdays he was willing to work, and this document would remain alongside the current roster on which he was marked ‘OFF;[10]
·He was only paid at 150% for 24 Saturdays he worked between 4 October 2014 and 15 March 2021;[11]
·He has tried to get copies of his rosters but has been told by the respondent that they have been destroyed in accordance with the employer’s document retention policy;[12]
·In September 2020, the employer stopped the voluntary sign up arrangement for Saturdays in Burnie and he was paid pursuant to clause 24.6 of the 2020 EA;[13] and
·From February 2021, he has worked a seven day roster, a sample of which is annexure JS-5 to his affidavit affirmed 19 November 2021.[14]
[9] Affidavit of the applicant affirmed 19 November 2021 at [18].
[10] Affidavit of the applicant affirmed 19 November 2021 at [19]
[11] Affidavit of the applicant affirmed 19 November 2021 at [21].
[12] Affidavit of the applicant affirmed 19 November 2021 at 22] to [25].
[13] Affidavit of the applicant affirmed 19 November 2021 at [26].
[14] Affidavit of the applicant affirmed 19 November 2021 at [27] and Annexure JS-5.
The evidence of Mr David Snook largely corroborates what the applicant says. Importantly, that:
(a)Before the MOU, the roster provided for a 5 day working week with Saturdays and Sundays being the “days off” and that when he volunteered to work on a Saturday he was paid at 200% of the ordinary rate; but
(b)After the time of the MOU, when he volunteered for Saturday work he was paid at 150% until the new arrangements in around 2020.
The evidence of Mr Swain is largely consistent with that of the applicant and Mr Snook about what occurred after the MOU was created until 2020, when the RTBU withdrew from their agreement under the MOU.
Mr Swain confirms that for a period in 2020, after the withdrawal from the MOU, they paid employees who worked on Saturdays at 200%.[15] Further, that the normal roster from 2021 provides for Saturday services in Burnie to be covered in the one “normal” rolling roster and samples are provided of that at GS-2 and GS-3 of his affidavit.[16]
[15] Affidavit of Greg Swain affirmed 11 October 2021 at [24].
[16] Affidavit of Greg Swain affirmed 12 December 2021 at [25] and [26].
It is of significance that Mr Swain does not address what rate of pay was paid to employees between 2007 and 2012 for Saturday work in either affidavit read by the respondent. This means that the evidence of the applicant and Mr Snook that employees were paid at 200% prior to 2012 is to be accepted as it is undisputed.
Also unexplained is why Mr Swain was able to produce as annexure GS-4, to his affidavit affirmed 2 December 2021, the document he refers to at [9] to [11] of his affidavit of 10 November 2021, when the employer claimed to be unable to provide the rosters sought on behalf of the applicant for the same period, being between 4 October 2014 and 15 March 2021.
ISSUE ARISING
During the hearing, I raised with both representatives whether for the purposes of the interpreting the meaning of clause 21.9, the term “a roster” was of any significance. In particular:
·Whether there could be more than one roster?
·How the principles of contextual interpretation of instruments applied in this case, noting that “roster” was not defined in the EA, but clause 4 did define the term “special roster”; and
·Was the arrangement for work on Saturdays a “special roster”?
As the questions posed had not been considered, I gave the parties leave to file a written submission limited to the issues raised. Their submissions, each filed on 9 December 2021, have been considered.
The applicant submitted that the reference to “a roster” in clause 21.9 was to the rolling roster.
The respondent contended that nothing in the EA suggested that the reference to “the regular roster” in the definition of “special roster” in clause 4, meant that the regular roster was restricted to being in one document. This logically involves a concession that for the purposes of clause 21.9, the reference to “a roster” is to be construed as meaning the regular roster or what the applicant referred to as the rolling roster.
However, the respondent also contends that the object in this case, being “the regular roster” has two parts, being the two documents described by the evidence referred to in these reasons above at [25(d)]. The argument is expanded upon at [9] to [15] of the respondent’s written submission filed 9 December 2021.
IMPORTANT TERMS USED IN THE EAS
The dispute between the parties, centred on the meaning of “rostered day off” and “DOC” which both appear in clause 21.9 of the 2016 EA.
“DOC” does not expressly appear in the 2013 version of the EA, although a meaning is given to DOC in both versions of the EA. Clause 4 provides:
DOC means day off cancelled
“rostered day off” is defined in each version of the EA at clause 4 as follows:
Rostered day off means a day off provided for in a roster
EVALUATION OF EVIDENCE AND DETERMINATION
The applicant’s evidence is that during the period in question he worked his spread of hours required under the EA as a full-time employee between Monday to Friday on a roster which showed his rostered days off as Saturday and Sunday.[17]
[17] Affidavit of the applicant filed 26 November 2021 at [13].
The evidence of the applicant is consistent with the requirements of the EA for rostering of work pursuant to clause 21 and in particular 21.1.1 and 21.1.4.
The evidence of the applicant and Mr Swain establishes what occurred to cover the operational needs for Saturday bus services. It is not in dispute that a regular or rolling roster existed at all times for Monday to Friday.
In determining which of the competing contentions ought to be preferred, it is apparent that the meaning of “works on a rostered day off (DOC)” in clause 21.9 is critically important.
The unchallenged evidence on behalf of the respondent is that to give practical effect to the MOU, Mr Swain placed a document on the notice board asking for bus operators to express interest about how many and which Saturdays they were willing to work.[18]
[18] Affidavit of Greg Swain affirmed 11 October 2021 at [10].
It is clear in my view, and I find, that the document described in the previous paragraph is not of itself a separate roster or part of the rolling roster, as it did not allocate particular bus operators to work at particular or scheduled dates and times.[19]
[19] Affidavit of Greg Swain affirmed 11 October 2021 at Annexure GS1.
In arriving at the above view and finding, I largely accept the submission made on behalf of the employer that “roster” has its ordinary meaning as provided at [7] of their written submission filed 9 December 2021. However I consider the reasoning in the Federal Court decision in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2011] FCA 1294 more instructive. At [16] to [18], Logan J stated:
16.Read in isolation, it is by no means impossible to construe clause 17.3 as admitting of application to starting and finishing times of workers. Why that is so emerges from the ordinary meaning of the word “roster”. As defined in the New Shorter Oxford Dictionary “Roster” materially means “a list or plan showing the rotation of duties and leave for individuals or groups in any organisation originally a military force”. The definition of the word in the Macquarie Dictionary is not materially different, namely “a list of persons or groups with their turns or periods of duty”. In the industrial instrument context in which it appeared in Royal Melbourne Institute of Technology v National Tertiary Education Industry Union (2011) 203 IR 294 at [89] (Royal Melbourne Institute Case), Lander J was of the opinion that the word bore just that ordinary meaning.
17.It is necessary, though to remind oneself of what Madgwick J observed in Kucks Case as to how words may have different meanings depending on the context in which they are used in particular industrial instruments. That “roster” bore its ordinary meaning in the circumstances of the Royal Melbourne Institute Case is by no means determinative of whether it carries with it in all of its uses in the Agreement here the ordinary meaning of the word. What is clear is that there is no special industrial meaning to give to the word. There was no evidence of any such meaning offered by either party.
18.The ordinary meaning of the word “roster” is apt to embrace starting and finishing times. One feature of an arrangement which lists terms or periods of duty is the delineation of when a period of duty starts and when a period of duty finishes. That is achieved not just by specifying a particular day, week and month, but also by a time to start and a time to finish on a particular day.
The effect of Logan J’s reasoning, with which I agree, is that the reference to roster where it appears in an industrial agreement, will be informed by the context in which the term is used and may vary.
Mr Swain’s evidence at [11] and [12] of his affidavit affirmed 11 October 2021 establishes that he created another document at about six month intervals, which unlike the document referred to at [46] and [47] above, did allocate which operators were to work on particular Saturdays at scheduled times from those operators who had expressed interest in so working. Samples of this document appear as annexures GS-3 and GS-4 to Mr Swain’s affidavit.
Further, Mr Swain’s unchallenged evidence is that he created updating documents which allocated operators to work on particular Saturdays at scheduled times, fortnightly in advance.[20] The Court does not appear to have samples of these fortnightly created documents in evidence before it for the period relevant to this claim.
[20] Affidavit of Greg Swain affirmed 11 October 2021 at [11].
Part 3 of the EA specifically provides for hours of work, what number of ordinary hours are to be worked for full-time employees, how shift work rosters are to be constructed, including providing for spread of hours, breaks, a requirement for 2 rostered days off, limits on consecutive shifts, penalties and allowances, calculation of overtime, changes to shifts and overtime in addition to ordinary time. Within Part 3 of the EA, provision is expressly made for payment to an operator when he or she “works on a rostered day off”[21] and notice to be given of cancellation of a rostered day off.[22]
[21] Clause 21.9.
[22] Clause 22.4.
In my view, it is apparent from the overall context of the multitude of circumstances provided for in Part 3 of the EA, that there is a distinction between:
(a)Overtime which occurs because a full-time employee is rostered to work beyond their normal spread of 76 hours of work per fortnight from the outset for the purpose of the rolling or normal roster, and the pay it attracts as overtime; and
(b)Where outside of or separate to the rostered normal spread of 76 hours per fortnight, a full-time employee subsequently works on a day described in clause 21.9 and is to be paid double time or double time and half.
The disposition of this claim is therefore in my view dependent on whether the factual situation that existed and is not particularly in dispute, falls within scenario (a) or (b) in the previous paragraph.
The respondent urges the Court to accept that the factual situation and the existence of the MOU and that its terms demonstrates that the scheduling of employees by the documents Mr Swain created and displayed, establishes that when the applicant worked on Saturdays, it was because he had been scheduled as part of his normal roster to work and the normal roster was comprised of two documents or two parts. Consequently, clause 21.9 is not engaged.
This seems to me to be an artificial construct and is rejected for a number of reasons:
(1)The work the applicant did on Saturdays was, on the unchallenged evidence, on days initially marked as “off” on the regular roster.[23] Although it was asserted that the applicant was “on” for Saturdays on both documents, there is no evidence of that before the court.
(2)The two days that were required to be “off” pursuant to 21.1.4 on the roster applying to the applicant as a full-time employee, became days he in fact worked in the temporal sense used in clause 21.9 as the respondent submits, whether that was by agreement or otherwise;
(3)On occasions the fortnightly document had gaps and this required Mr Swain to find employees to work within the 14 days’ notice and an amendment of the third document then allocated or assigned who would work on particular Saturdays.
[23] Affidavit of the applicant affirmed 19 November 2021 at [13] and [14].
It is notable that the employer’s contentions in its Response at [31] to [34] and at the hearing initially, were in contradiction to the written submissions filed on 9 December 2021. That is, initially the factual situation was portrayed to be two rosters, weekday and Saturday roster, but the written submissions contend one roster in two parts.
I find that there was a process of varying the normal or rolling roster, which was fluid and not finalised until the employer published the third or amended third document. Logically, I do not accept the contention by the respondent that two documents collectively comprised the normal or rolling roster in this situation.[24] This is particularly so, when the MOU refers to the arrangement in some aspects “standing alone” from the EA and being identified as “the Saturday roster”, which suggests it is separate and distinct from the normal or regular roster.
[24] Noting the employer contended there were two rosters in its Response.
The evidence in my view establishes what is consistent with alteration of existing rosters as provided for in clause 21.1.5.
The applicant contends that the arrangement under the MOU, as described in the evidence, still involved a requirement on the applicant’s part to work on a “day off”, although he may have indicated a willingness to volunteer. I agree.
The employer had the final prerogative of determining which of the persons who had volunteered would work and when. It is, in my view, hard to escape the fact that there was a requirement to work on a day, which on the evidence, was marked as “off” on the rolling/normal roster.
By analogy, where a part-time or full-time employee is prepared to work and accepts a position for the minimum number of prescribed hours of work under an award or agreement, it is only when they are rostered to work at particular times and days that they are required to attend to do the work.
In any event, whether the applicant was “required” to work, the terms of clause 21.9 are not dependent on such a requirement for the double time to be payable. Rather, double time is to be paid simply when in actual fact the work is done on a rostered day off.
I also understood the respondent’s submissions to involve the contention that the inclusion of “(DOC)” in clause 21.9 operates to qualify the meaning of “works on a rostered day off” or treat it as if the two terms mean the same. However, that construction is not meritorious when informed by the established principles relating to interpreting industrial agreements,[25] for the following reasons:
(a)As (DOC) appears in brackets, it more likely connotes an example of when a person is taken to work on a rostered day off, otherwise the clause would simply have been expressed as “where a bus operator has a day off cancelled, the actual time worked etc…”;
(b)If the clause was intended to operate only for a DOC, it would be unnecessary to refer to rostered day off. The presence of both terms suggests a different meaning and purpose for including them particularly when well established principles of interpretation are applied and to give words used meaning; and
(c)It would be contrary to logic for the clause to provide that double time is payable when the employer cancels a rostered day off at its instigation but not when an employee agrees to work on a rostered day off to assist the employer’s operational needs.
[25] Usefully summarised in Australian Workers’ Union v Murrumbidgee Irrigation Ltd [2011] FWA 5306 at [125]; and also Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 at [69] to [71]; and CPB Contractors Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 70 at [44] to [60].
Much of the respondent’s case relied upon the meaning of day off cancelled under the EA and the emphasis given to the meaning of “cancel” involving a unilateral act on the part of one party, namely the employer.
I do not accept that DOC is necessarily and only to be taken to refer to cancellation at the instigation of the employer. Cancellations can occur by consensus or frustration beyond the terms of what parties may have initially determined would occur.
It is clear that the respondent could have incorporated the work required to be done for the Saturday services by building it into the regular/normal roster and scheduling employees to work within the constructs of Part 3.1 of the EA, so that they only incurred the cost output equivalent to 150% for the hours worked on Saturdays.
However, on their own evidence they did not do that until 2021. Instead, they chose an informal MOU with the union, but this cannot replace the operation at law of clause 21.9.[26]
[26] Construction, Forestry, Mining and Energy Union v State of Victoria [2013] FCA 445 at [236] and authorities cited.
The fact that the respondent subsequently incorporated Saturday work into the rolling roster in 2021 is telling. It reflects what the employer reserved its right to do at the time it entered the MOU. However, this tends to reinforce the construction of clause 21.9 that I have arrived at in this particular case given the evidence before me.
In my view, the facts in evidence establish that what occurred when the applicant worked on Saturdays comprised of a variation or alteration in his regular roster. The regular roster on the evidence had him marked as “off” on the 24 Saturdays he subsequently worked. As he worked on the 24 Saturdays that were marked as “off” and that were his rostered days off under clause 21.1.4 initially, clause 21.9 is invoked.
CONCLUSION
As it was common ground that the applicant had not been paid at 200% for the 24 Saturdays to which his claim for underpayment pursuant to clause 21.9 relates and I have found in effect that there has been breach of the clause, the application for review should succeed.
The respondent is ordered to pay the sum of $1,524.98 to the applicant.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Dated: 7 February 2022