Shane Johnson v CSBP Ltd

[2018] FWC 5780

[2018] FWC 5780

FAIR WORK COMMISSION

DECISION

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

Shane Johnson
v
CSBP Ltd
(C2018/1067)

DEPUTY PRESIDENT BEAUMONT PERTH, 14 SEPTEMBER 2018

Application to deal with a dispute in accordance with the dispute resolution procedure in an enterprise agreement – interpretation of agreement – meal vouchers

[1] Mr Shane Johnson (Mr Johnson) applied to the Fair Work Commission (Commission) for it to deal with a dispute in accordance with the dispute settlement procedure in the CSBP Limited Enterprise Agreement 2016 (2016 Agreement). 1 The dispute concerned a claim by Mr Johnson that under the 2016 Agreement, CSBP Limited (CSBP) is required to provide continuous shift worker employees who work a ‘Shift Cover’ shift with two meal vouchers. CSBP considers there is no such requirement.

[2] The central issue in the resolution of the dispute was the competing constructions and the effect of subclauses at 10.9(f), 10.13 and 10.14 of the 2016 Agreement. Those subclauses are set out below inclusive of bold font for emphasis:

10.9(f) Where a Shift Cover is worked, no additional payments or entitlements are applicable.

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.

[3] The parties agreed, subject to some points of clarification, the dispute could be resolved by the Commission determining the following question:

Is there an obligation under the 2016 Agreement to provide a continuous shift worker employee who provides ‘Shift Cover’ with a meal or voucher when requested.

[4] Mr Kentish, Counsel for the Applicant (Mr Kentish), submitted a point of clarification. That point was that if the Shift Cover shift was 12 hours in duration then CSBP would be obliged to provide two meal vouchers. Mr Vallence, Counsel for CSBP (Mr Vallence), reiterated that the question arose pursuant to the 2016 Agreement.

[5] The application was listed before me for conference pursuant to the steps in the dispute resolution procedure of the 2016 Agreement. 2 The matter was unresolved and Mr Johnson sought to have his application proceed to arbitration.

[6] It was common ground, and I agree, that the Commission is authorised by the terms of the 2016 Agreement to arbitrate the dispute and neither party contended that the dispute resolution procedure had not been complied with. The parties asked that I determine the matter by way of a hearing, and after reviewing the material filed, I considered that it was appropriate for me to do so.

[7] Having heard the matter and after considering all of the evidence and submissions of the parties, I have determined that CSBP is not obliged under the 2016 Agreement to provide a continuous shift worker employee who provides ‘Shift Cover’ with a meal or voucher when requested. Further, if it is the case that the continuous shift worker employee is working a 12 hour shift, CSBP is not obliged under the 2016 Agreement to provide two meals or two meal vouchers. My reasons for this decision follow.

Background

[8] CSBP manufactures and supplies chemicals and fertilisers. It is organised into three business units, namely Fertiliser, Ammonia and Sodium Cyanide. 3

[9] Mr Johnson is a Process Technician in the Sodium Cyanide Unit. He works on a roster that rotates between day and night shifts. 4 He said that in addition to working this roster there are times when he and other employees are required to work shifts outside of the roster. These extra shifts are referred to as ‘Shift Cover’,5 and are used to cover absences where a Process Technician is absent because they are taking sick leave or carer’s leave.6

[10] It was common ground between the parties that there had been a practice of providing two meal vouchers to employees when performing a 12 hour Shift Cover shift. Mr Johnson submitted that it had been a long standing practice for approximately 18 years and that the vouchers had been provided before and after the commencement of the 2016 Agreement. 7

[11] Mr Edward Mizara, Production Manager Sodium Cyanide (Mr Mizara), who had been with CSBP for a relatively short period when compared to Mr Johnson, said that Shift Cover was contemplated in the CSBP Limited Enterprise Agreement 2013 (2013 Agreement) and subsequently in the 2016 Agreement. 8

[12] Ms Katherine Reid, Human Resources Manager Chemicals, gave evidence that Shift Cover had not been utilised in the Fertilisers Business Unit before the operation of the 2016 Agreement because the definition of Shift Cover in subclause 5(cc) of the 2013 Agreement only recognised its use in the Sodium Cyanide and Ammonia/Ammonium Nitrate Business Units.

[13] However Mr Johnson’s evidence was such that although the Fertiliser Unit was not covered in the definition of ‘Shift Cover’ in the 2013 Agreement, to the best of his knowledgeShift Cover was still used across all business units. Whilst not paid for such shifts, the Process Technicians in the Fertiliser Unit had received time off in lieu when working such shifts. 9 Mr Johnson observed that Shift Cover was not confined to use in circumstances of illness or injury.10 Similar to his other shifts, he said that the ‘Shift Cover’ shifts were 12 hours long.11 It followed that two paid meal breaks were provided during a Shift Cover shift.12

[14] Mr Mizara said until early 2017 he had simply assumed that the provision of meal vouchers on Shift Cover was the way things were done and had not reviewed whether there was an entitlement to the vouchers under the 2016 Agreement. 13 However come early 2017, a Fertiliser Production Superintendent had approached the Fertiliser Operations Manager to ask why two meal vouchers were being provided to employees performing Shift Cover.14 A meeting was subsequently held between the Fertiliser Operations Manager, Mr Mizara and the Nitrates Operations Manager. The outcome of that meeting was that having read the 2016 Agreement the three gentlemen decided that there was no entitlement to a meal voucher when working Shift Cover.15

[15] The group of Managers raised the issue of the meal vouchers at the Enterprise Bargaining Agreement Committee (Committee), which included employees, on 9 May 2017. The Managers advised the Committee that two meal vouchers would no longer be provided when working Shift Cover, but by way of compromise they would still provide one. 16 In the meantime, the Human Resources department of CSBP endorsed the view formed by its Managers.17

[16] Mr Mizara said that initially there was no objection to the proposed change and Shift Supervisors were instructed to implement it. 18 However, on 23 May 2017, Mr Johnson sent an email to a group of management representatives advising that he disagreed with CSBP’s view,19 and while discussions occurred a resolution could not be reached.

Terms of the 2016 Agreement

[17] Clause 10 of the 2016 Agreement sets out the ‘Hours of Work’ and includes reference to ‘Ordinary Hours’, ‘Additional Hours, ‘Agreed Hours’, ‘Unexpected Hours’, ‘Stand by’, ‘Call out’ and ‘Shift Cover’, amongst other matters.

[18] It is said at subclause 10.1 that:

…the salary package is offered and accepted on the understanding that employees are required to attend to planned and unplanned demands that meet the operational and maintenance needs of the Employer.

[19] The ‘Ordinary Hours’ extend to a maximum of 1976 per annum and CSBP reserves the right to authorise or not authorise any request by an employee to increase their hours above Ordinary Hours. 20 Subclause 10.2(d) of the 2016 Agreement provides:

The Employer undertakes to provide sufficient resources to ensure that employees are generally not required to work hours which are in excess of their Agreed Hours. However, employees can agree to work Additional Hours as outlined in sub-clause 10.3.

[20] ‘Agreed Hours’ are defined in subclause 5.1 of the 2016 Agreement as meaning ‘all Ordinary Hours and Additional Hours’. ‘Additional Hours’ are also defined in subclause 5.1 as ‘hours in excess of 1976 per year in accordance with subclause 10.3’. Subclause 10.3 sets out:

a) Where required by the Employer, employees may agree to work more than their Ordinary Hours known as ‘Additional Hours’.

b) Blocks of Additional Hours will be in increments of 50 hours.

c) The first block of Additional Hours must be offered no later than 30 June

d) Additional Hours may be offered by the Employer from the commencement of the Hours Planning Process (as per subclause 10.5 until 31 December of the same calendar year.

e) An employee commencing employment part way through a year may be offered Additional Hours based on the needs of the team at that time.

f) Consistent with team needs, by agreement with the Employer, and to meet changed personal circumstances individuals may change the number of Additional Hours they had previously agreed to.

….

[21] In addition to Ordinary Hours and Agreed Hours, the 2016 Agreement contemplates ‘Unexpected Hours’. At subclause 10.4 it is stated:

a) Subject to sub-clause 10.3 (h) the Employer may require employees to work hours above their Agreed Hours known as ‘Unexpected hours’.

b) Where the Employer requires the employee to work Unexpected Hours, the intention is for the Employer to roster the employee off work providing for time off in lieu.

c) The Employer and the employee may agree to pay out any Unexpected Hours at the Unexpected Hours rate.

d) The calculation of the Unexpected Hours are rate is as follows:

2 x (Annual Base Salary + Skills Development Allowance where applicable space (as per clause 13.6 of this agreement) + Additional Field Allowance where applicable (as per clause 13.8 of this agreement) space + Trade Allowance where applicable (as per clause 13.13 of this Agreement)/1976).

e) The Unexpected Hours payment may be made monthly at the end of April, May and/or June of the financial year or otherwise at the discretion of the Business Unit Manager.

[22] At subclause 10.7 of the 2016 Agreement the matter of ‘Standby’ is dealt with and sets out the requirement on each team of maintenance employees to organise a Standby roster with their Supervisor as part of the Hours Planning Process each year. Subclause 10.7(g) provides that the Standby rates include a component to compensate the employee for the cost of a meal.

[23] The 2016 Agreement makes provision for maintenance employees to be called out when rostered on Standby. 21 For example, subclause 10.8(a) in short, sets out that where a maintenance employee is rostered on Standby for up to 18 hours during a specified period, and is recalled to work and performs work, the employee will receive hours off their Agreed Hours.

[24] At times where an employee may be required to cover the absence of another employee the 2016 Agreement refers to this as ‘Shift Cover’. At subclause 5.1(ee) the concept of ‘Shift Cover’ is described and defined:

5.1 ee) Shift cover

Means where a Continuous Shift Worker is requested to and provides coverage as part of the continuous shift roster for another Continuous Shift Worker who is ill or injured; as per the following:

i. Working within their rostered shift block – are requested to provide coverage on their upcoming rostered days off;

ii. During their rostered days off – are requested to provide coverage within the same block of rostered days off.

[25] A ‘Continuous Shift Worker’ is referred to as 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. 22

[26] Subclause 10.9 of the 2016 Agreement sets out the requirements and entitlements of the Shift Cover clause, which relevantly states:

10.9 Shift Cover

f) 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:

g) 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.

h) 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.

i) 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.

j) As part of this Shift Cover arrangement, all Continuous Shift Workers are obliged to work at least their Agreed Hours each year.

k) Where a Shift Cover is worked, no additional payments or entitlements are applicable.

l) Nothing in this sub-clause shall prevent the Employer from applying the provisions in clause 10.15 (Notice of Roster)

[27] Apposite to the dispute is the Shift Cover clause at 10.9(g), which states ‘[W]here a Shift Cover is worked, no additional payments or entitlements are applicable’.

[28] The 2016 Agreement sets out the circumstances where employees may be entitled to the provision of meal vouchers. The 2016 Agreement refers to the provision of meal vouchers in two of its subclauses, namely subclause 10.13 and 10.14. Subclause 10.13 states:

10.13 Meal Breaks

e) 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).

f) Day Workers will have an unpaid 30 minute meal break at an agreed time.

g) Day Workers will be allowed a rest period of 15 minutes, without loss of pay, between commencement time and he meal break.

h) Continuous and Non-Continuous Shift Workers will receive a paid meal break of 20 minutes after each five (5) hours worked.

[29] Subclause 10.14, titled ‘Meal Vouchers / Allowance’, provides:

e) 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.

f) 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.

g) Continuous Shift Workers required to work more than 12 consecutive hours will be provided with a meal by the Employer if requested.

h) 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.

[30] It is the case that if a maintenance employee attends a Call Out (subclause 10.8) for more than four hours then a meal or meal voucher is provided on request.

Submissions of CSBP

[31] Mr Vallence submitted that when regard was had to the terms of the 2016 Agreement as relevant to the dispute and the 2016 Agreement as a whole, it was clear, on the ordinary meaning of the words that an employee was only entitled to the compensation under cl 10.9 for providing Shift Cover.

[32] Subclause 5.1(ee) of the 2016 Agreement defined the circumstances where work would be classed as ‘Shift Cover’. Mr Vallence continued that subclause 10.9 (b) and (c) made clear the entitlements to be provided to an employee when they worked Shift Cover, with subclause 10.9(c) specifically addressing circumstances where Shift Cover was provided on a public holiday.

[33] Mr Vallence said that subclause 10.9(f) set out that no additional payment or entitlements are applicable when Shift Cover is worked.

[34] It was therefore the submission of CSBP that the relevant terms of the 2016 Agreement were not ambiguous. It followed there was no need for the Commission as constituted to consider extrinsic material for the purposes of interpreting the 2016 Agreement. Mr Vallence said that the position of CSBP was that subclauses 10.13 and 10.14 did not apply to Shift Cover, but nevertheless these clauses still had work to do.

[35] However, Mr Vallence advanced that if there were a need to ascertain the common intention of the parties from extrinsic material, it could be derived from the background to the relevant provisions to the 2016 Agreement. In this respect, Mr Vallence directed the Commission’s attention to the 2007 Agreement with particular reference to subclause 10(ix).

[36] This subclause was said to have been the first to introduce the concept of Shift Cover and the conditions applicable when such a shift was worked. Subclause 10(ix) was introduced subsequent to a clause dealing with meal vouchers which was initially introduced no later than 2003 in the CSBP Limited Enterprise Agreement 2003 (2003 Agreement). Subclause 10(ix) provided for specified compensation for Shift Cover and made clear, according to Mr Vallence, the collective intention that no additional payments or entitlements would apply.

Submissions of Mr Johnson

[37] Mr Kentish submitted that meal vouchers were dealt with in subclauses 10.13 and 10.14 of the 2016 Agreement. He advanced that the intent of those subclauses were that a Continuous Shift Worker who was required to work outside of their normal shift roster would be entitled to a paid meal break of 20 minutes for each 5 hours worked and a meal, or meal voucher, would be provided, if requested.

[38] While the Shift Cover clause at subclause 10.9(f) stated that no additional payments or entitlements are applicable where a Shift Cover is worked, at hearing Mr Kentish said that if one were to read the word ‘entitlement’ contained in subclause 10.9(f), in the way proposed by CSBP, it would have the effect of negating every other term and condition of the enterprise agreement and, specifically, it would have the effect of taking away any right to meal breaks. 23

[39] Mr Kentish continued that it would be absurd to interpret subclause 10.9(f), in a way that meant that people were not entitled to meal breaks. 24  Further, he said, it would have to mean if the 2016 Agreement was interpreted in that way that it would negate any rights to representation during a dispute which occurred on a Shift Cover shift because that is an entitlement under clause 20.3.25 Mr Kentish submitted that this could not be right as the Act did not permit it. Enterprise agreements must contain disputes clauses which allow for representation and entitlement to representation.26

[40] Mr Kentish continued with this line of reasoning advancing if ‘entitlement’ is read as negating every other part of the 2016 Agreement this would mean that the entitlement to be provided with protective equipment in clause 17.2, would be negated and of no effect for that Shift Cover clause. 27 While citing another example, Mr Kentish surmised that it strained any sensible reading of those words to read ‘entitlement’ as necessarily providing some kind of forced pact where employees had agreed that if they work a Shift Cover arrangement that they are not entitled to anything else.28

[41] It was the submission on behalf of Mr Johnson that the conduct of CSBP had been to provide meal vouchers for Shift Cover. 29 Mr Kentish said that the subclause ‘where a shift cover is worked, no additional payment or entitlements are applicable’, had been in every generation of agreements within CSBP and yet the vouchers had continued to be supplied.30 Mr Kentish said meal vouchers had continued to be supplied because of what was in subclauses 10.13 and 10.14.31  It was the case, said Mr Kentish, that when subclauses 10.13 and 10.14 were considered in the context of the 2016 Agreement, and specifically in the context of subclause 10.9(f), there was an ambiguity.  Mr Kentish continued that there was no ambiguity arising in relation to subclauses 10.13 and 10.14 if just those clauses were considered.32

[42] Mr Kentish surmised that when read in the way that CSBP contended, it would be the case that if an employee worked Shift Cover, she or he would get what is in clause 10 and nothing else. 33

Consideration

[43] The principles that apply to the interpretation of an enterprise agreement were initially summarised by a Full Bench of the Commission in AMIEU v Golden Cockerel Pty Ltd 34 and thereafter were modified by the Full Bench of the Commission in AMWU v Berri Pty Ltd (Berri).35

[44] The Full Bench in Berri affirmed that the interpretation of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a dispute over the interpretation of an enterprise agreement will turn on the language of the agreement, having regard to its context and purpose. 36 Context might appear from the text of the agreement as a whole, the disputed provision’s place and arrangement in the agreement, and the legislative framework under which the agreement was made.37

[45] In Berri it was said that some principles of statutory construction have less force in the context of construing an enterprise agreement. 38 The Full Bench referred to the decision in Shop, Distributive and Allied Employees’ Association v Woolworths Limited39(Woolworths), where it was held that the presumption that a word used in one provision of a statute has the same meaning when it is used in another provision of the same statute, applied with less force in the context of an enterprise agreement.40 The Full Bench quoted Gray ACJ in Woolworths41:

[T]ypically such agreements are the product of hard negotiations, in which wording of particular clauses is often agreed without reference to other provisions of the same document. Provisions are commonly transmitted from one agreement to the next in a series, without regard to whether their terminology sits well with the words use in newly adopted terms. The use of other agreements, and awards, as precedents can often result in the borrowing of provisions, again without regard to whether the words used in them are consistent with the rest of the agreement under consideration. For these and other reasons, consistency will often be absent. It is easy to see that the same word can be used in different provisions with different meanings.

[46] The Shift Cover clause at 10.9 of the 2016 Agreement provides that where a Shift Cover is worked no additional payments or entitlements are applicable. Mr Johnson advanced that CSBP is obliged to provide two meal vouchers when a Shift Cover shift is worked because subclause 10.13 states that ‘any employee required to work outside of their rostered hours will be provided with a meal or voucher when requested’.

[47] Clause 10.9 refers to the word ‘entitlements’. When asked whether a meal voucher was an entitlement, Mr Johnson said ‘it's an entitlement because it's written into an EBA document that was ratified by law’ 42 and when asked again by Mr Vallence in cross examination, ‘Yes, so it’s an entitlement?’, he replied ‘yes’.43

[48] The word entitlement is used on several occasions within the 2016 Agreement:

cl 2.2(d) This Agreement covers the field in relation to employee’s salaries and entitlements and there shall be no further claims by the parties to this Agreement for the term of this Agreement and no industrial action taken for the term of this Agreement.

cl 9.1(f) In the event of serious misconduct an employee’s employment may be terminated by the Employer without notice, whereby, the employee’s salary shall only be paid for the period up to the dismissal, plus any accrued leave entitlements.

cl 9.2(d)(i) Employees who have had their employment terminated as a consequence of their position be [sic] made redundant will be advised in writing and provided with information concerning their entitlements.

cl 9.2(h) Subject to sub-clause 9.2(i) where an employee’s employment has been terminated as a result of their position being made redundant they will receive the following payments:

i. Annual Leave – accrued and pro rata Agreement entitlements to be paid.

ii. Long Service Leave – accrued and pro rata Agreement entitlements subject to a minimum of five (5) years service.

cl 10.9(f) Where a Shift Cover is worked, no additional payments or entitlements are applicable.

cl 11.1 The Annual Base Salaries include all entitlements including but not limited to annual leave loading, and any other allowances except as prescribed by this Agreement.

[49] At times ‘entitlement’ is qualified by reference to ‘leave entitlements’ or ‘Agreement entitlements’. On other occasions there is a simple reference to ‘entitlements’. For example, it is said at subclause 11.1 that the Annual Base Salaries include all entitlements including but not limited to annual leave loading, and any other allowances except as prescribed by this Agreement. This particular subclause is positioned under clause 11 Annual Salaries. Therefore, when consideration is given to the meaning of the word ‘entitlement’ in this clause it is not the case that an entitlement to representation under a dispute resolution clause comes to mind, as is provided for in subclause 20.1(e)(iii). This is because interpretation of an enterprise agreement will turn on the language of the agreement, having regard to its context and purpose. 44 Context can be ascertained from the text of the agreement as a whole and also from the placement of the provision.45 In the circumstances of this example, the reason why it would be absurd to extend the word ‘entitlement’ to mean ‘representation’ under a dispute resolution clause is because clearly the meaning of ‘entitlement’ is elucidated when thought is given to its proximal position to ‘Annual Base Salaries’.

[50] When one considers subclause 10.9(f) there is the requisite appreciation for the placement of this clause within the 2016 Agreement. The subclause forms part of a Shift Cover clause that in turn falls within the confines of an ‘Hours of Work’ clause. Within that ‘Hours of Work’ clause the various types of hours of work are traversed, as are particular formulae for calculating the amount of payment that some of these hours attract and the meal breaks that are to be taken while working the hours. Further, it is the case that meal vouchers are traversed at both subclauses 10.13 and 10.14.

[51] Subclause 10.9(f) provides in effect that except where provided for in the Shift Cover clause (namely 10.9), no additional payments or entitlements are applicable. It is not the case that no entitlements are applicable. As Mr Kentish acknowledges it would be illogical to interpret this to mean that employees to whom the 2016 Agreement applies were not entitled to be provided with protective equipment (cl 17.2). Further, I concur with Mr Kentish that it would strain any sensible reading of the word ‘entitlement’ if the meaning were such that where employees have agreed to work Shift Cover they are not entitled to anything else. 46

[52] However, it is the case that subclause 10.9(f) precludes the provision of additional entitlements. In the context of the subclause 10.9(f) ‘payments or entitlements’ are prefaced with the words ‘no additional’.

[53] Subclause 10.13 sets out employees are to be provided with appropriate and reasonable meals and/or breaks as outlined in the remainder of the clause. There is nothing particularly remarkable about the entitlement and subclauses 10.3(b)-(c) step through the length of such breaks and whether they are paid or unpaid. It is not apparent that a meal break as such is an additional entitlement. However, subclause 10.3 also 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 from the language of the subclause, are not contingent on a particular action but rather are mandatory given the use of the word ‘will’, the provision of a meal or voucher is dependent on the employee making a ‘request’. Subclause 10.13, with the exception of referencing ‘work outside of their rostered hours’, does not further illuminate the circumstances where an entitlement to a meal voucher or allowance arises.

[54] However, subclause 10.14, which is relevantly titled ‘Meal Vouchers/Allowances’ and follows subclause 10.13, then sets out the circumstances where a meal or voucher will be provided subject to a request having been made. These circumstances include where an employee has been called into work prior to their rostered commencement time, 47 where Day Workers are required to work more than two hours past their rostered hours,48 and where Continuous Shift Workers are required to work more than 12 consecutive hours.49 Further, subclause 10.14(d) provides that maintenance employees who attend a Call Out as per subclause 10.8 and work for more than four hours will be provided with a meal voucher by CSBP, if requested. Subclause 10.8, titled ‘Call Out’, is silent with regards to meal breaks, meal vouchers and meals, therefore the subclause 10.14(d) appears a relevant insertion in circumstances where it was determined to provide this entitlement in the event of a Call Out. It is evident from the ordinary meaning of the words in clause 10 that a meal or meal voucher is an entitlement over and above that of the provision of a meal break.

[55] At subclause 10.7 it is detailed that the Standby rates set out in that section include a component to compensate the employee for a cost of a meal. While subclause 10.7 refers to compensation for the cost of a meal and subclause 10.14(d) speaks of a meal voucher specifically, in my view I do not consider that because these clauses specifically refer to the word ‘meal’, that the more general term ‘entitlements’ as referred to in clause 10.9(f) does not capture the entitlement of a meal voucher.

[56] From my review of the evidence it is discernible that there have been various iterations of clauses within CSBP Agreements that have provided for a meal or meal voucher when working outside of rostered hours. Over time there has been the addition of various subclauses.

[57] According to CSBP the capacity for an employee to request a meal voucher as a result of being required to work outside of their rostered hours was initially included in the CSBP Limited Enterprise Agreement 2003 (2003 Agreement), at subclause 9(xii). However, in this particular agreement there was no mention of ‘Shift Cover’.

[58] Come 2007-2010 a meal voucher was subsequently provided in both the CSBP Limited Enterprise Agreement 2007 (2007 Agreement)and CSBP Limited Enterprise Agreement 2010 (2010 Agreement) and the concept of ‘Shift Cover’ had become established. 50

[59] In light of the various iterations of the CSBP Agreements and their terms, it is, as acknowledged in Woolworths, understandable that there is not consistent reference to the word ‘meal voucher(s)’ in clause 10 and that both ‘meal voucher’ and the more general word ‘entitlements’ are used. While subclause 10.14(d) refers to a ‘meal voucher’, subclause 10.9(f) speaks of ‘entitlements’. However, it is the case that a meal voucher is an ‘entitlement’.

[60] Mr Johnson has submitted that the interpretation advanced by CSBP was not sustainable for reasons which included that the meal vouchers had been provided before and after the commencement of the 2016 Agreement.

[61] Prior to the Fertiliser Production Superintendent approaching the Fertiliser Operations Manager to ask why meal vouchers were being provided on Shift Cover, the practice of providing two meal vouchers for a 12 hour Shift Cover had been unquestioningly accepted. However, while this was the practice, it does not in turn mean that the practice reflected what the correct interpretation of the 2016 Agreement was. Simply put, those covered by the 2016 Agreement had simply not turned their mind to the issue.

[62] It is true that subsequent conduct may be relevant to the interpretation of an industrial instrument but such post-agreement conduct must be such to show that there has been a meeting of the minds, a consensus. 51 However, there cannot be a meeting of the minds when the minds have not considered the basis on which their practice operates. The evidence was such that the provision of meal vouchers arose in circumstances that extended past any obligation set out in the 2016 Agreement. It was accepted that in the Fertiliser Unit there may have been some discretionary arrangements in place outside of the Shift Cover clause, where in effect shift coverage was provided but the compensation was by way of time in lieu.52

[63] Gleaning interpretative significance from the historical conduct of an employer should be approached with caution. 53 It has been said that the mere fact successive agreements may have contained the same provision and no claim was made under an earlier instrument will not sustain an assertion that the parties had a common understanding as to the meaning of a provision.54 Mr Johnson’s evidence was such that in negotiations for the 2016 Agreement there was no mention of a proposal to reduce or remove the provision of meal vouchers. However, the common intention of the parties is derived from considering what a reasonable person would understand by the language the parties have used to express their agreement without regard to the subjective intentions or expectations of the parties.

Conclusion

[64] In the present matter I consider that subclause 10.9(f) has a plain meaning. While I have had regard to evidence of surrounding circumstances to assist in determining whether an ambiguity exists, I have found that it does not. Subclause 10.9(f) is not ambiguous or susceptible to more than one meaning when considered in isolation or when considered within clause 10 of the 2016 Agreement. Further, I do not consider that subclause 10.9(f) is inconsistent or is otherwise in conflict with the remainder of clause 10, particularly subclauses 10.13 and 10.14. Subclauses 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 subclauses 10.13 and 10.14 that such clauses have no further work to do.

[65] While there are clearly circumstances whereby the 2016 Agreement provides for the provision of meal vouchers, the working of a Shift Cover shift under the 2016 Agreement is not one.

DEPUTY PRESIDENT

Appearances:

A. Kentish on behalf of the Applicant.

M. Vallence on behalf of the Respondent.

Hearing details:

Perth:

2018.

August 28.

Final written submissions:

Applicant, 1 August 2018.

Respondent, 25 July 2018.

Printed by authority of the Commonwealth Government Printer

<PR700388>

 1 Section 739 of the Fair Work Act 2009 (Cth).

 2   Clause 20 of the 2016 Agreement.

 3 Statement of Katherine Jane Reid [4].

 4 Statement of Shane Rohan Johnson [4].

 5   Statement of Shane Rohan Johnson.

 6 Ibid [4].

 7   Outline of Submissions in Reply Shane Johnson [2(b)].

 8   Statement of Edward Robert Mizera (Exhibit R3) [7]; Outline of Submissions in Reply Shane Johnson [2(b)(i)].

 9 Supplementary Witness Statement of Shane Rohan Johsnon [3].

 10 Statement of Shane Rohan Johnson [5].

 11   Statement of Shane Rohan Johnson.

 12   Ibid.

 13 Statement of Edward Robert Mizera [9].

 14   Ibid [12a].

 15   Ibid [12b] and [13b].

 16   Ibid [13c].

 17 Ibid [14].

 18 Ibid [15].

 19 Ibid [16].

 20   Subclauses 10.2(a) and (c) of the 2016 Agreement.

 21   Subclause 10.8 of the 2016 Agreement.

 22   Subclause 5(i) of the 2016 Agreement.

 23   Transcript PN400.

 24   Transcript PN401.

 25   Transcript PN401.

 26   Transcript PN401.

 27   Transcript PN402.

 28   Transcript PN402.

 29   Transcript PN406.

 30   Transcript PN406.

 31   Transcript PN406.

 32   Transcript PN406.

 33   Transcript PN406.

 34   [2014] FWCFB 7447 [41].

 35   AMWU v Berri[2017] FWCFB 3005 [114].

 36   Ibid; National Union of Workers v CHEP Australia Limited[2018] FWC 3797 [20].

 37   AMWU v Berri[2017] FWCFB 3005 [114].

 38 Ibid [46].

 39 [2006] FCA 616.

 40   AMWU v Berri[2017] FWCFB 3005 [46].

 41   Ibid.

 42   Transcript PN174.

 43   Transcript PN175.

 44   AMWU v Berri[2017] FWCFB 3005 [114]; National Union of Workers v CHEP Australia Limited[2018] FWC 3797 [20].

 45   AMWU v Berri[2017] FWCFB 3005 [114].

 46   Transcript PN402.

 47   Subclause 10.14(a) of the 2016 Agreement.

 48   Subclause 10.14(b) of the 2016 Agreement.

 49   Subclause 10.14(c) of the 2016 Agreement.

 50 Respondent's outline of submissions [10].

 51   AMWU v Berri[2017] FWCFB 3005 [114].

 52   Transcript PN119 and PN423.

 53   National Union of Workers v CHEP Australia Limited[2018] FWC 3797 [43].

 54   Glen Cameron Nominees Pty Ltd (t/a Glen Cameron Trucking) v Transport Workers’ Union of Australia[2018] FWCFB 3744 [46]; Australian Manufacturing Workers’ Union v Energy Australia Yallourn Pty Ltd (2017) 262 IR 300.