Shane Johnson v CSBP Limited
[2019] FWCFB 90
•18 JANUARY 2019
| [2019] FWCFB 90 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Shane Johnson
v
CSBP Limited
(C2018/5555)
VICE PRESIDENT CATANZARITI | SYDNEY, 18 JANUARY 2019 |
Appeal against decision [2018] FWC 5780 of Deputy President Beaumont at Perth on 14 September 2018 in matter number C2018/1067.
[1] Mr Shane Johnson (Appellant) has filed an application pursuant to s.739 of the Fair Work Act 2009 (Cth) (Act) for the Fair Work Commission (Commission) to deal with a dispute with CSBP Limited (Respondent) under the CSBP Limited Enterprise Agreement 2016 (2016 Agreement). The dispute related to whether the Respondent was required to provide a “continuous shift worker” who provides “Shift Cover” with a meal or voucher when requested.
[2] On 14 September 2018, Deputy President Beaumont answered that question in the negative. 1 The Appellant now seeks to appeal that Decision.
[3] On 28 November 2018, Mr A Kentish of the Construction, Forestry, Maritime, Mining and Energy Union, Mining and Energy Division appeared for the Appellant and Ms L Saunders, of counsel, appeared for the Respondent. Both representatives appeared by way of right pursuant to clause 20.1(e)(iii) of the 2016 Agreement:
“The employee(s) and/or the Employer may authorise an organisation or another representative of their choice to refer the matter to the [Commission] in accordance with sub-clauses i. or ii. and/or to represent their interests in any proceedings before the [Commission]”.
Background
[4] At paragraphs [8]-[16] of the Decision, the Deputy President sets out the surrounding circumstances of the dispute. For the purposes of this appeal we need not repeat those matters but we note that:
• Prior to the 2016 Agreement, there had been a “long standing practice for approximately 18 years” that employees who worked relief shifts (whether falling within the meaning of Shift Cover or not), were provided with two meal vouchers on request.
• Following the commencement of the 2016 Agreement, a review of the above practice took place, and in 2017 the Respondent advised that this practice will no longer continue. As a compromise, the Respondent agreed to supply one meal voucher instead.
The clauses in dispute
[5] At paragraphs [17]-[21] of the Decision, the Deputy President details the context in which the Shift Cover clause appears in the 2016 Agreement. For the purposes of this appeal, it is suffice to mention that employees receive an annual salary in exchange for working a certain number of “Agreed Hours” per year, which are effectively ordinary hours. This can be increased if employees choose to accept blocks of Additional Hours offered by the Respondent. For shiftworkers, these Additional Hours are incorporated in their ordinary rosters and are paid at a premium. Employees can also be required to work “Unexpected Hours” for which they will ordinarily receive time in lieu but, may by agreement, be paid at the Unexpected Hours rate. Shift Cover sits outside these provisions and is, in short, said to mean the provision of relief cover by a continuous shiftworker where another continuous shiftworker is ill or injured. 2
[6] The Deputy President focused on one central point of contention, that is, whether the Respondent was required under clauses 10.13 (the Meal Breaks clause) and 10.14 (the Meal Vouchers/Allowance clause), to provide meal vouchers to continuous shift worker employees who provided “Shift Cover”, or was this requirement excluded by sub-clause 10.9(f) (under the Shift Cover clause). These clauses are set out below:
“10.9 Shift Cover
a) Shift Cover will be provided as requested (within reason) to meet the business needs of the Employer. Each team will formulate the methods that are required to meet this cover and these will be reviewed periodically during each year.
Note: In order to meet business needs and to ensure that production continues, the total hours needed to cover a four-crew continuous shift roster is 2176. This does not necessarily mean each Continuous Shift employee is required to work 2176 hours.
Where a Shift Cover is completed, the following shall apply:
b) Where a Designated Continuous Shift Worker is rostered off, but provides Shift Cover, the employee will receive a payment in accordance with the Additional Hours rate multiplied by the number of hours worked. Where this occurs, the employee will not receive any hours off their Agreed Hours.
c) Where a Designated Continuous Shift Worker is rostered off on a public holiday, but provides a Shift Cover on a public holiday, the employee will receive a payment in accordance with the Unexpected Hours rate multiplied by the number of hours worked. Where this occurs, the employee will not receive any hours off their Agreed Hours.
d) Team members of Continuous Shift teams are obliged to provide coverage such that the completion of Shift Covers occurs equitably across the team, with all members being required to perform their reasonable share and no single team member being unreasonably inconvenienced by other team members.
e) As part of this Shift Cover arrangement, all Continuous Shift Workers are obliged to work at least their Agreed Hours each year.
f) Where a Shift Cover is worked, no additional payments or entitlements are applicable.
g) Nothing in this sub-clause shall prevent the Employer from applying the provisions in clause 10.15 (Notice of Roster)
…
10.13 Meal Breaks
a) Employees are to be provided with appropriate and reasonable meals and/or breaks as outlined below. Any employee required to work outside of their rostered hours will be provided with a meal or voucher when requested. It is the responsibility of each team to organise within their team the necessary arrangements to accommodate employees with a meal, voucher or a receipted claim for the cost of a meal up to the value of $25.70 (indexed annually in accordance with Perth CPI average for Food).
b) Day Workers will have an unpaid 30 minute meal break at an agreed time.
c) Day Workers will be allowed a rest period of 15 minutes, without loss of pay, between commencement time and he meal break.
d) Continuous and Non-Continuous Shift Workers will receive a paid meal break of 20 minutes after each five (5) hours worked.
10.14 Meal Vouchers / Allowance
a) Employees who are called into work prior to their rostered commencement time will be provided with a meal or a voucher by the Employer if requested.
b) Day Workers required to work more than two (2) hours past their rostered hours will be provided with a meal voucher by the Employer if requested.
c) Continuous Shift Workers required to work more than 12 consecutive hours will be provided with a meal by the Employer if requested.
d) Maintenance Employees who attend a call out as per Clause 10.8, and work for more than four (4) hours will be provided with a meal or a voucher by the Employer if requested.” (Emphasis added).
Findings at first instance
[7] Having considered the principles applicable to agreement interpretation, 3 the Deputy President made the following findings;
• The Appellant accepted in cross-examination that a meal voucher is an entitlement. 4
• It is not the case that no entitlements are applicable under sub-clause 10.9(f). This would “strain any sensible reading of the word entitlement”. However, it is the case that sub-clause 10.9(f) precludes the provision of additional entitlements, as “payments or entitlements” are prefaced with the words “no additional”. 5
• Clause 10.13 provides for appropriate and reasonable meals and/or breaks as outlined in the remainder of the clause. It is not apparent that a meal break is an “additional entitlement”. 6
• Clause 10.13 includes the provision of a meal or voucher when an employee is required to work outside of their rostered hours. Unlike the provision of meal breaks, which are not contingent on a particular action but is rather mandatory given the use of the word “will”, the provision of a meal or voucher is dependent on the employee making a “request”. 7
• Clause 10.14 sets out the circumstances where a meal or voucher will be provided subject to a request having been made. 8
• The ordinary meaning of the words in clause 10 shows that a meal or meal voucher is an entitlement over and above that of the provision of a meal break. 9
• There is not consistent reference to the word “meal voucher(s)” in the various iterations of clause 10 in past Agreements. Both “meal voucher” and the more general word “entitlements” have been used in past Agreements. 10
• The practice of providing two meal vouchers for a 12 hour Shift Cover had been unquestioningly accepted. While this was the practice, this does not reflect the correct interpretation of the 2016 Agreement. Those covered by the 2016 Agreement had not turned their mind to the issue. 11
• Sub-clause 10.9(f) has a plain meaning, even when regard is had to evidence of surrounding circumstances in determining whether ambiguity exists. It is not ambiguous or susceptible to more than one meaning when considered in isolation or within clause 10 of the 2016 Agreement. 12
• Sub-clause 10.9(f) is not inconsistent or otherwise in conflict with the remainder of clause 10. Sub-clauses 10.13 and 10.14 are not solely and wholly devoted to Shift Cover. It is not the case that if Shift Cover is exclusive of the entitlements provided in sub-clauses 10.13 and 10.14 that such clauses have no further work to do. 13
The Appeal
[8] The Appellant advanced four grounds of appeal.
[9] Firstly, the Deputy President erred in finding that sub-clause 10.9(f) has a “plain meaning” and that the 2016 Agreement was not ambiguous. It was not open for the Deputy President to make such finding. As a result the Deputy President failed to give sufficient weight to relevant extrinsic evidence. The Respondent submits that while in theory “entitlement” is capable of holding more than one meaning, this does not mean that ambiguity arises in clause 10.9(f). The meaning of the word “entitlement” is limited to “monetary benefit”, as “entitlement” is linked to “payment” following the eiusdem generis principle, and because “entitlement” is consistently used throughout the 2016 Agreement to refer to entitlements with a monetary value. In any event, matters raised in negotiations go to the subjective intentions of the parties and would be an impermissible consideration.
[10] Secondly, the Deputy President erred in finding that the Respondent is not obliged to provide meal vouchers to employees working “Shift Cover”. In particular, “entitlement” and “additional” in sub-clause 10.9(f) should not be construed as the provision of meal vouchers upon request in the context of the Agreement. The clause is intended to exclude overtime and shift penalties from Shift Cover. Moreover, clauses 10.13 and 10.14 provide a general right to a meal voucher and are specific provisions dealing with meal breaks and vouchers. The fact that clauses 10.13 and 10.14 apply to other circumstances in addition to Shift Cover does not mean that the clauses were not intended to apply to Shift Cover. The Respondent submits that even if the Appellant is correct, clauses 10.13 and 10.14 are subject to the specific provisions of sub-clause 10.9(f). Alternately, even if sub-clause 10.9(f) does not exclude meal vouchers, clauses 10.13 and 10.14 do not provide for any meal vouchers where Shift Cover is worked. The term “as outlined below” in sub-clause 10.13(a) and the fact that 10.14 would be wholly otiose if the Appellant’s interpretation was accepted, indicates that 10.13 is conditioned by 10.14. Clauses 10.13 and 10.14 do not provide a general right to a meal voucher for work outside of rostered hours and there is no support for the contention that sub-clause 10.9(f) prevents double dipping of overtime and shift penalties.
[11] Thirdly, the Deputy President erred in finding that the parties had not considered the matter during bargaining. He mistook the facts or had otherwise erred by taking this into account. The Respondent contends that not only was this finding open to her, but this was urged by the Appellant at first instance. 14
[12] Fourthly, the Deputy President erred in failing to find that the removal of meal vouchers was an extra claim prohibited by clause 2.2 of the 2016 Agreement. The Respondent asserts that whether a matter is an extra claim or not depends on whether the matter the subject of the claim is dealt with in different terms by the relevant industrial instrument. 15 The removal of meal vouchers for Shift Cover can only be an extra claim if the Appellant’s interpretation is correct. There is no suggestion that, if this is found, the Respondent will nevertheless continue to withhold meal vouchers. Accordingly, there is no extra claim.
Consideration
[13] Foremost, we note that permission to appeal is not required in this matter. A right of appeal is conferred under clause 20.2(b) of the 2016 Agreement as follows:
“If, following conciliation, the matter still remains unresolved, then either party may refer the matter to the FWC for arbitration. The decision of the FWC will bind the parties, subject to either party exercising a right of appeal against the decision to a Full Bench.”
[14] We also note that the Decision under appeal is not a discretionary decision. The Deputy President at first instance was resolving a dispute by arbitration, namely, by answering questions that involved the interpretation of the Agreement. There is no discretion involved in such a task. Accordingly, the task that is before us is to determine whether the interpretation adopted by the Deputy President is correct. 16 Relevantly, did the Deputy President err in concluding that sub-clause 10.9(f) has a plain meaning and that it is not ambiguous or susceptible to more than one meaning when considered in isolation or within clause 10 of the 2016 Agreement. For the reasons below we have determined that the Deputy President did fall into such error.
[15] It seems to us that there is an ambiguity in the 2016 Agreement, at least with respect to the operation of clause 10.13 on Meal Breaks and clause 10.14 on Meal Vouchers/Allowances. It is unclear to us as to how the two clauses operate together and how the two clauses operate with sub-clause 10.9(f). Whilst the Deputy President found that sub-clause 10.9(f) is not “inconsistent or otherwise in conflict with the remainder of clause 10”, that clauses 10.13 and 10.14 “are not solely and wholly devoted to Shift Cover”, and that if Shift Cover is exclusive of clauses 10.13 and 10.14 it is not the case that the clauses have no further work to do, such findings do not support the conclusion that no ambiguity exists. This is so because:
• Sub-clause 10.13(a) under the “Meal Breaks” clause is uncertain to the extent that it does not deal with meal breaks at all, but rather it appears to be related to the substantive matters set out in clause 10.14 on “Meal Allowances/Allowances”. The rest of clause 10.13 however clearly deals with meal breaks.
• Given the uncertainty noted in (i), it is unclear as to whether the term “outlined below” in sub-clause 10.13(a) refers to clause 10.13(b)-(d), clause 10.14 or both.
iii. It is reasonably arguable that any employee (including shiftworkers) will be provided on request with a meal or meal voucher in circumstances where they are required to work outside of their rostered hours under sub-clause 10.13(a) and when called into work prior to their rostered commencement time under sub-clause 10.14(a). Conversely, it is reasonably arguable that neither sub-clause could provide shiftworkers meal vouchers upon request as it does not specify the type of worker such as in 10.14(b)-(d). Therefore it is arguably the case that sub-clause 10.9(f) operates to exclude 10.13(a) and 10.14(a).
[16] While the above examples are not an exhaustive list of the uncertainty surrounding clause 10.13, 10.14 and 10.9(f), it certainly supports a finding that the 2016 Agreement is ambiguous with respect to the provision of meal vouchers for shiftworkers. The Decision at first instance does not consider how the three clauses operate together in the context of the Agreement as a whole. We are of the view that the Deputy President could not have reasonably concluded that no ambiguity exists, without having first considered such matters. The Deputy President followed one line of enquiry, namely whether the term “entitlement” is ambiguous in sub-clause 10.9(f) and whether 10.9(f) in the absence of ambiguity operated to exclude clauses 10.13 and 10.14. This in our view led the Deputy President into error.
[17] In any event, the Deputy President erred in concluding that sub-clause 10.9(f) has a plain meaning and that it is not ambiguous or susceptible to more than one meaning. This is so because it was not open to the Deputy President to find that the words “no additional payments or entitlements” were not ambiguous in circumstances where, in the context of the Agreement as a whole and as noted by the Deputy President, other payments and entitlements ought not be excluded, 17 for example life insurance (clause 18); access to copies of the 2016 Agreement and protective equipment (clause 17); and access to the disputes procedure (clause 20). While the Deputy President did distinguish between the entitlement to a meal break and the provision of a meal voucher on the basis that the latter was contingent upon a request being made and the former was mandatory18 and therefore not additional, the Deputy President did not go through a similar textual analysis in respect of the other entitlements mentioned. Without doing so, the Deputy President failed to consider the context of the Agreement as a whole in determining whether an ambiguity can be said to exist in sub-clause 10.9(f).
[18] In our view, as we have found ambiguity in this matter, we do not consider it necessary to consider whether the Deputy President erred in respect of recourse to extrinsic materials. This is so because following Berri, recourse to extrinsic materials is permissible in the next stages of interpretation - that is to resolve ambiguity. To that end we have determined to uphold the appeal in respect of ground one (in part), and that matter (C2018/1067) be referred to Deputy President Beaumont to rehear in accordance with this decision.
Conclusion
[19] We order as follows:
(1) The appeal is upheld.
(2) Decision [2018] FWC 5780 is quashed.
(3) Matter (C2018/1067) is referred to Deputy President Beaumont to rehear in accordance with this decision.
VICE PRESIDENT
Appearances:
Mr A. Kentish of the Construction, Forestry, Maritime, Mining and Energy Union, Mining and Energy Division for the Appellant.
Ms L. Saunders,of Counsel, instructed by Mr M. Vallence (Heelan & Co) for the Respondent.
Hearing details:
2018
Melbourne with video-link to Perth
28 November
Printed by authority of the Commonwealth Government Printer
<PR703667>
1 [2018] FWC 5780 (Decision).
2 2016 Agreement, sub-clause 5.1(ee). Sub-clause 5(i) also provides that ‘Continuous Shift Worker’ is any employee who is rostered to work as part of a rotating roster covering twenty-four hours per day on seven days of the week.
3 Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd[2014] FWCFB 7447 (Golden Cockerel); Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Berri Limited[2017] FWCFB 3005 (Berri).
4 Decision at [47].
5 Decision at [51]-[52].
6 Decision at [53].
7 Decision at [53].
8 Decision at [54].
9 Decision at [54].
10 Decision at [59].
11 Decision at [61].
12 Decision at [64].
13 Decision at [64].
14 Appeal Book tab 5 p.87; tab 3 p.63 at PN414.
15 Maramara v Toyota Motor Corporation Australia Pty Ltd [2013] FCA 1351, endorsed by the Full Court in Marmara v Toyota Motor Corporation Australia Pty Ltd [2014] FCAFC 84 at [38]; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) v Nestle Australia Limited [2005] FCA 488.
16 Golden Cockerel at [7]; Australian Municipal, Administrative, Clerical and Services Union & Another v Australian Tax Office[2013] FWCFB 4752 at [11] – [13]; RACV Road Service Pty Ltd [2014] FWCFB 1629 at [4] – [6].
17 Decision at [51].
18 Decision at [53].
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