Stewart Clarke v Broadspectrum (Australia) Pty Ltd T/A Broadspectrum

[2018] FWC 3638

[2018] FWC 3638

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Stewart Clarke
v
Broadspectrum (Australia) Pty Ltd T/A Broadspectrum
(C2017/7002)

DEPUTY PRESIDENT CLANCY MELBOURNE, 20 JUNE 2018

Application to deal with a dispute.

[1] On 18 December 2017, Mr Stewart Clarke filed an application under s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with a dispute. Mr Clarke purported to bring the application under clause 33 of the TS (Australia) and The AWU Victoria Garrison Lifestyle Services Collective Agreement 2013 to 2016 (the Agreement). The Agreement had been approved by the Commission on 28 October 2013, commenced operation on 31 October 2013 and had a nominal expiry date of 1 March 2016.

[2] Mr Clarke has been employed on a casual basis as a chef at the RAAF Base Williams in Laverton since approximately July 2007. The order he seeks the Commission to make is that Broadspectrum offer him a permanent part-time role as a chef, dependent on the pattern of hours worked based on the six months preceding the filing of this application. 1

[3] The dispute was the subject of a conference on 2 February 2018, however the matter could not be resolved. Following a mention on 14 February 2018, directions were issued for the filing of material ahead of a hearing on 4 April 2018. Submissions were filed on behalf of Mr Clarke and two witness statements each for Mr Clarke and Mr Rami Fernando were also filed. For Broadspectrum, an outline of submissions was filed and witness statements of Mr John Parisella and Ms Melinda Fuller.

[4] At the hearing, Ms Monika Paszkiewicz of Counsel was granted permission to represent Mr Clarke, while Mr Danny Klepac, Senior Employment Lawyer, appeared for Broadspectrum. All witnesses gave evidence at the hearing and were the subject of cross-examination, noting Ms Fuller was questioned via telephone due to illness. Both parties filed final written submissions following the hearing.

The Agreement

[5] The Commission’s jurisdiction to arbitrate the dispute arises out of clause 33.3(e) of the Agreement.

[6] The dispute concerns the interpretation and application of clause 10.9 of the Agreement which provides:

“Where a casual employee has been working systematic and regular hours of work for a period exceeding six months they shall be offered either a full time or part time role depending on their pattern of work and the operational requirements. Where a casual employee declines the offer the position may be converted to a part-time or full-time role by the Company upon giving the employee 4 weeks’ notice.”

Applicant’s Submissions and Evidence

[7] Mr Clarke submitted that clause 10.9 confers a right upon a casual employee, who has been working systematic and regular hours of work in excess of six months, to be offered a full-time or part-time role. He put this is not a right to apply for conversion, nor is it a right constrained by considerations of reasonableness (in as much as the employer may not unreasonably refuse an application for conversion). Rather, it was submitted the right conferred upon a casual employee in the circumstances described by clause 10.9 is an absolute one and ought not be constrained by that which Broadspectrum is prepared to offer.

[8] It was submitted the condition imposed by the phrase “depending on their pattern of work and the operational requirements” is limited only to the decision of whether the permanent role offered is on a full-time or part-time basis. It was said it ought not be read as allowing Broadspectrum to not offer a permanent role at all on the basis of “operational requirements”.

[9] Mr Clarke submitted his interpretation is not ‘narrow or pedantic’ and is rather a construction that accords ordinary words their usual meaning. Further, he submitted his interpretation of clause 10.9 accords with the stated commitment of Broadspectrum in the Agreement, which provides at clause 5.3 that Broadspectrum “is committed to the employment of permanent employees on either a full-time or part-time basis.”

Casual employment

[10] Mr Clarke submitted that despite the 12 July 2007 offer of full-time employment, which he accepted, a few days after signing the offer, both he and Broadspectrum made an oral agreement that Mr Clarke would be employed on a casual basis. He said this was because in 2007, the flat wages for permanent employees were very low. There was no amended employment contract which reflected this agreement, however Mr Clarke said since 2007, he has been paid a casual rate, has not taken paid annual leave or paid sick leave and has described his employment as ‘permanent casual.’ He further submitted his hours, until approximately 2014, were inconsistent.

Mr Clarke worked systematic and regular hours for a period exceeding six months

[11] It was submitted that for a casual employee to have the benefit of clause 10.9 of the Agreement, it is the hours worked that must be regular and systematic, not the employment itself. It was put the terms ‘regular’ and ‘systematic’ were considered in Yaraka Holdings Pty Ltd v Giljevic, 2 where it was held that:

•  The term ‘regular’ implies a repetitive pattern and does not mean frequent, often, uniform or constant; and

•  The term ‘systematic’ requires something that could fairly be called a system, method or plan.

[12] Mr Clarke said between 2007 and 2014, he worked 30-40 hours per week and despite some variations, he always was rostered to work on Sundays. Mr Fernando said over the past 10 years, Mr Clarke has been “working consistent morning shifts and with myself on Sundays.” 3

[13] Mr Clarke submitted between 2014 and April 2016, his hours of work were regular and systematic in that:

•  They were repetitive – he worked morning shifts on Monday, Thursday and Friday, and the whole day on Sunday;

•  They were methodical – he always worked morning shifts, never afternoon shifts; and

•  There appeared to be a system – he could reliably count on being offered the same hours of work such that he was able to organise other long-standing commitments.

[14] Some pay slips from August 2014 were annexed to Mr Clarke’s statement which he submitted show a pattern of work that is regular and systematic as much as they are similar hours, similar days. 4

[15] It was submitted from April 2016, Mr Clarke’s hours were reduced, though there was still systematic work with some variations, but the hours were relatively regular and systematic. 5 It was put that the hours were not the same long hours Mr Clarke worked up until April 2016.

[16] Mr Clarke said because his hours of work were so regular over the last three years, he has organised other commitments in the afternoons, including working on a casual basis for another employer on Wednesday and Friday afternoons and volunteering to cook for the homeless in Geelong on Thursday evenings. He said he wishes to work those hours ‘or somewhere around about those hours.’ 6

[17] Mr Clarke submitted he has far exceeded the eligibility criteria for conversion pursuant to clause 10.9 of the Agreement, as his hours of work have been regular and systematic for at least two years.

Organisational change

[18] Mr Clarke said in April 2016, he was advised that the arrangements regarding kitchen staff would be changing as of 18 April 2016. Mr Clarke was told only one staff member would be required per shift, regardless of the number of diners. He said because there was another permanent full-time employee already rostered on his usual shifts, his hours were reduced to approximately 20 hours per week. Mr Clarke said he was rostered on days which he did not usually work and/or would be offered four hour shifts in the middle of the day which meant it was impossible for him to work elsewhere.

[19] On 11 April 2016, Mr Clarke said he contacted Broadspectrum’s HR department to ask whether he was entitled to a redundancy pay-out. He said he was advised to contact his manager and ask him to contact HR for such matters. Mr Clarke said he again contacted Broadspectrum’s HR department on or around 4 May 2016 requesting them to advise what his current contract said in relation to his hours. He followed up on 8 May 2016 and was advised ‘Alex’ (Zubiri) would be in contact with him to discuss the matter further, though said no response was provided by Mr Zubiri or Broadspectrum.

[20] Mr Fernando acknowledged that in mid-2016 there were significant changes happening in the catering functions. 7 He said, however, that there were no changes to his hours at that time and the only change occurred from 7 April 2018 when his hours were reduced from 41 hours to 38 hours.8

[21] When asked in cross-examination whether he had previously been asked to adjust his hours to accommodate the hours Mr Clarke wanted to work, Mr Fernando said he was asked if he would be happy to change some of the shifts he does, and no particular date or time were given. He said he was told the reason for the request was to accommodate Mr Clarke’s hours. 9 Mr Fernando said he declined the request because he was the only one being asked.10

[22] Mr Fernando said he understood changes should happen in any business, however the changes in the kitchen have been happening since January 2018, after Mr Clarke had come to the Commission. 11

Meetings with management

[23] Mr Clarke said in mid-2016 he attended a meeting with Mr Zubiri, Mr Bourke (Head Chef) and Mr Fernando. Mr Clarke said Mr Zubiri told him at that meeting that HR had asked him to advise Mr Clarke that they were not going to be issuing a contract and they did not give a reason for this decision. Mr Clarke said Mr Zubiri told him he did not need to worry because his hours would be ongoing and safe as he was definitely required at the RAAF Base Williams. Mr Fernando gave similar evidence as to what occurred at this meeting. Mr Clarke said no permanent position was offered to him in that meeting.

[24] Mr Clarke said in late-2016, he had a meeting with Mr Franco Tedesco, his direct manager at the time, and Mr Tedesco said Mr Clarke was required for 30 hours per week, so he would organise for Mr Clarke to be made permanent part-time. Mr Clarke said this was the extent of the discussion regarding his contract.

[25] In November 2016, Mr Clarke said he had a meeting with Mr Daniel Tootsell, Regional Manager, and Ms Alicia Gowler, Supervisor. He said he again asked for a permanent position to which Mr Tootell said he would have a look at the requirements. Mr Clarke said he has had no response from Mr Tootell.

[26] Mr Clarke said shortly after Mr Paul Mason took over from Mr Zubiri as Catering Manager in mid-2017, he advised staff in a meeting that he agreed casuals should be made permanent.

[27] In September 2017, Mr Clarke said he met with Mr Tim King, Area Manager, who advised Mr Clarke that he would look into making him a permanent part-time employee. Mr Clarke said no offer of permanent employment was made to him subsequent to that meeting.

Full-time or part-time role to be offered

[28] Mr Clarke submitted it was incumbent upon Broadspectrum, upon him exceeding six months of regular and systematic hours worked, to offer him a full-time or part-time role. He submitted the word ‘shall’ is to be accorded its usual and ordinary meaning, namely, ‘must.’ It was submitted Broadspectrum did not offer Mr Clarke a full-time or part-time position, despite repeated assurances to him that it would do so.

[29] Mr Clarke said he can be flexible with his hours, though can be rostered to finish only as late as 2.30pm. 12 Mr Clarke also said he understood under the Agreement, hours can be changed on notice.13

Conclusion

[30] It was submitted that for the above reasons Mr Clarke has, since at least April 2016 (if not earlier), had a legitimate expectation of conversion to a permanent role, with the only issue for Broadspectrum being the decision as to whether the role offered was a full-time or part-time role dependent on hours worked and operational requirements.

[31] Mr Clarke submitted it is incumbent upon Broadspectrum to offer him a permanent role that is dependent on the hours worked. He said it is not for Broadspectrum to offer anything less than the right that clause 10.9 of the Agreement confers. It was submitted the Commission should convert Mr Clarke’s status to a permanent part-time role.

Closing submissions relating to interpretation of clause 10.9

[32] In closing submissions at the hearing, it was submitted on Mr Clarke’s behalf that the approach the Commission is required to take in relation to interpretation of enterprise agreements has been summarised in The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited (Golden Cockerel), 14 which outlines a three-step process.

[33] It was submitted it is necessary for the Commission to determine whether an agreement or the clause has a plain meaning or contains ambiguity. It was asserted clause 10.9 has a plain meaning and there is no ambiguity evident from the words. It was further submitted the words ‘systematic and regular’ is a phrase regularly dealt with by the Commission, and though has evidentiary issues, the terms of the phrase itself are not particularly ambiguous. It was submitted the words ‘shall be offered’ should be accorded their usual ordinary meaning. Further, it was asserted there is no evidence of any surrounding circumstances that support any conclusion there is an ambiguity in relation to the clause.

[34] It was submitted in substance, what the issue appears to boil down to, is that Broadspectrum has taken issue or failed to offer a permanent position because in its view, Mr Clarke has imposed certain conditions that it does not consider are necessary for clause 10.9 to apply. It was submitted what conditions Mr Clarke has decided he shall or shall not impose does not bear any relevance to the question to be determined, that is, whether it is incumbent on Broadspectrum to offer Mr Clarke a permanent position after six months of regular and systematic hours of work.

[35] As to when the six months should be measured from, it was submitted this should be from at least August 2014. It was submitted there is nothing in clause 10.9 which requires it be the six months preceding the lodgement of any application and it does not provide a ‘starting date.’ It was further submitted once the six months requirement has been met, it is incumbent on Broadspectrum to offer employment. 15 It was conceded that ‘has been working’ as opposed to ‘has worked’ might possibly suggest something closer to the time in which the dispute is raised, however Mr Clarke’s evidence is his hours have been systematic and regular as he has been working mornings and Sundays. It was said it has only been since January 2018 that Mr Clarke’s hours have been significantly reduced and he has only been working half days on Sundays.

[36] It was submitted in April 2016, when Mr Clarke had a discussion with Mr Zubiri when he had worked regular and systematic hours for the six months preceding, the discussion ought to have resulted in an offer of permanent or part-time employment. 16

[37] Regarding ‘systematic and regular’, the submissions referred to at [11]-[17] are relied upon. It was submitted Mr Clarke would have brought himself within the benefit of clause 10.9 from February 2015, however no offer was made then or as a result of various discussions Mr Clarke had with various area managers, nor around May 2017 when there is an operational requirement for a permanent part-time chef. Further, it was submitted in the discussion in September 2017 with Mr Clarke, there was still no offer of permanent part-time employment.

[38] As to ‘shall be offered’, it was submitted it is not as other conversion clauses might appear where there is discretion given to the employer not to, or to refuse an application for conversion and not to do so unreasonably, taking into account the operational requirements and pattern of work as to whether the rejection is unreasonable or not. Rather, it was submitted this clause requires that employment shall be offered.

[39] As regards the words ‘depending on their pattern of work’, it was submitted these go to whether the role offered is full-time or part-time. It was submitted ‘pattern of work’ should be given a broad reading and would probably be reflective of the fact that the hours are systematic in regular hours of work.

[40] As to ‘the operational requirements’, it was submitted this is also dependant on whether the role was full-time or part-time, but there is a requirement that the employer offer either a full-time or part-time role. It was submitted the pattern of work and the operational requirements are considered and then it is a decision as to when the role offered is full-time or part-time. It was further submitted the operational requirements suggest that there is work for a permanent part-time chef, as Mr Parisella was unable to give any evidence as to whether or not that position had been filled and Mr Fernando’s evidence was the position had not been filled.

[41] It was submitted that clause 10.8 of the Agreement refers to ‘ongoing business needs’ and this, it was submitted, provides some discretion, however the ‘operational requirements’ in clause 10.9 do not provide the same sort of discretion. It was submitted there are qualifiers and discretions in clause 10.8 which do not apply in clause 10.9. It was submitted that it is perhaps easier for an employee to bring themselves within the benefit of clause 10.8 than 10.9 as an entry requirement of ‘regular shifts’ might not be as high a hurdle (though is a longer time period) as ‘systematic and regular hours.’

[42] It was submitted Broadspectrum was required to offer Mr Clarke a permanent part-time role after six months of regular and systematic work. It was asserted clause 10.9 is in line with the commitment in clause 5.3 of the Agreement, that Broadspectrum ‘is committed to the employment of permanent employees on either a full-time or part-time basis’, and that after working six months casual employees will become or will be offered a permanent role. It was said the operational requirements and the pattern of work provides reference as to whether the role offered is full-time or part-time, but once that pattern of six months of regular and systematic hours has been satisfied, then a permanent role is to be offered.

[43] It was concluded that ultimately, the onus on Broadspectrum provided by clause 10.9 might not seem particularly fair, however that is not the task of the Commission. It was submitted the Commission’s task is to interpret the Agreement and this does not involve rewriting the Agreement or any considerations of fairness or just outcomes.

Respondent’s Submissions and Evidence

Submissions

[44] Broadspectrum submitted Mr Clarke is engaged as a casual employee and has been engaged in this capacity since 23 July 2007. It submitted in the last 12 months, Mr Clarke has worked an average of 26.49 hours per week, varying from seven hours to 52.25 hours in a week. It put that Mr Clarke has worked 36 Sundays over the 52 week period between 6 February 2017 and 6 February 2018.

[45] Broadspectrum submitted it has offered Mr Clarke a permanent role consistent with its current work requirements, with an offer being made in January 2018 to choose from any of the following shifts:

•  Monday 11.30 to 19.30

•  Tuesday 11.30 to 19.30

•  Wednesday 11.30 to 19.30

•  Thursday 11.30 to 19.30

•  Friday 05.30 to 13.30 or 11.30 to 19.30

•  Saturday 06.00 to 15.30 or 15.00 to 19.15

•  Sunday 13.30 to 19.15

[46] Broadspectrum said Mr Clarke has rejected that offer of permanent employment because “it does not include morning shifts on weekdays and does not include a 13.15 hour shift on Sunday.” 17

[47] Broadspectrum acknowledged that on occasion throughout his employment, Mr Clarke has raised permanent employment with it. It submitted he has previously rejected permanent employment because of the reduction in income which it would entail, wanting flexibility over the Summer season to work another job and wanting fixed shifts outside the Summer period.

Hours of work

[48] Broadspectrum submitted its understanding of the key reason for Mr Clarke rejecting its offer is that he expects to continue undertaking hours of work which he previously undertook as a casual employee. It put Mr Clarke’s insistence on working these hours has extended to him presenting to work at 6.00am on a Sunday when he has been requested to start work at 1.00pm. Broadspectrum submitted Mr Clarke believes he has an entitlement to work set hours and those hours cannot be changed by Broadspectrum without his consent. Broadspectrum submitted it has a right to manage its operations rationally and effectively subject to its obligations to the client, including optimising the hours of work.

[49] Broadspectrum submitted even if Mr Clarke’s request to become a permanent employee was granted, this does not resolve the fundamental issue which is Mr Clarke’s belief that he must be able to continue working the same hours, irrespective of any changes in Broadspectrum’s operational requirements.

Broadspectrum’s operational management

[50] Broadspectrum submitted it has overhauled its catering operations at RAAF Williams. It asserted that in 2017, it moved from a model where food was re-heated at RAAF Williams, to food being prepared at RAAF Williams. It put that as part of this change, it established a Catering Manager and a Head Chef role to be based onsite on a permanent basis. It submitted those roles were advertised in August 2017 and all staff were aware of the vacancies through toolbox talks and could apply. Broadspectrum submitted that Mr Clarke did not apply for any of the positions.

[51] Broadspectrum submitted on review of the catering operations, it was identified that having more than one catering staff member on a shift was uneconomical, particularly on weekends. It submitted the change meant the hours of work previously undertaken by Mr Clarke were no longer feasible.

[52] Broadspectrum submitted it has offered other hours of work to Mr Clarke and permanent part-time employment which he has refused. It submitted it has an overriding right to manage its business efficiently which is recognised in clause 5.4 of the Agreement which provides:

“The parties are committed to the willingness of employees to recognise the need to be flexible within the jobs, duties and classification structure of this Agreement and the recognition that improving work Organisation means working towards a flexible and interchangeable ethos.”

Evidence of Mr John Parisella and Mr Clarke’s responses

[53] Mr Parisella has been employed with Broadspectrum since 2004 and is currently the General Manager South East Defence Zone Defence Base Services Contract. Mr Parisella said he had involvement with the Defence contract, which includes RAAF Base Williams, from 2010 to 2014 and then again since November 2017.

[54] Mr Parisella said up to approximately mid-July 2017, meals for catering operations were cooked at Simpson Barracks and driven to RAAF Williams. He said at the time Broadspectrum moved to preparing food at RAAF Williams, it also put in place a structure for catering operations, including the positions of Catering Manager and Head Chef. Mr Parisella said on 7 May 2017, the RAAF Williams permanent part-time chef resigned and consequently advertising for that role commenced in August 2017. He said Broadspectrum’s move to having permanent roles onsite gave it better visibility of staffing needs for catering.

[55] Mr Clarke said his recollection was that food was cooked and delivered from Simpson Barracks to RAAF Base Williams until mid-2016, not July 2017. He said until 2015, the food was always prepared and cooked fresh at RAAF Base Williams and that food being bulk cooked was ceased after approximately a year in mid-2016. Mr Clarke further said that he was not approached to apply for the position of permanent part-time chef in August 2017, nor was there any discussion with him between May 2017 and August 2017 regarding his role being converted to permanent part-time.

[56] Mr Parisella said it became apparent that with the permanent roles, Broadspectrum did not need to have as many casual or outsourced labour working shifts and it did not need two staff members, especially on weekends. Mr Parisella said the impact of the changes has been that Mr Clarke has been required for less work on the pattern of hours he currently works. Mr Clarke said that he believes the hours he has previously worked have been passed on to another casual chef.

[57] Mr Parisella said Broadspectrum receives a lower rate of payment for weekend catering which reflects the Department of Defence’s requirement for less catering on weekends.

[58] Mr Parisella said he was aware of a proposal put by Mr Darren Johns to Mr Clarke on 25 and 30 January 2018 to become a permanent part-time employee. He said he understands Mr Clarke declined this proposal because he wanted to continue working his preferred shifts as a condition of becoming a permanent part-time employee. Mr Clarke said he denies that it was a condition of becoming a permanent part-time employee that he work his preferred shifts. He said the proposal from Mr Johns was on a ‘take it or leave it basis’ and there were no other negotiations. He said he could not complete the hours which were offered to him in January 2018. 18

Evidence of Ms Melinda Fuller and Mr Clarke’s responses

[59] Ms Fuller, National HR Manager, Defence, outlined Mr Clarke’s employment history with Broadspectrum and its predecessor. She said on 21 October 2014, Mr Clarke was issued with a letter confirming changes to the contract that he would be working on. Ms Fuller said the change transferred him to the Defence Base Services Contract as a casual cook with an effective date of 1 November 2014. Mr Clarke said he did not receive a letter to the effect alleged by Ms Fuller, though he recalls he did ask HR around that time to become a permanent employee.

[60] Ms Fuller said Broadspectrum operates a leader led HR model and so the leader of each business is responsible for the business, including HR issues. She said the Human Resources Service Centre (HRSC) purpose is to support leaders in relation to HR matters, however the HRSC is not intended as an employee call centre. Ms Fuller said in circumstances where an employee, such as Mr Clarke, contacts the HRSC directly, the practice is to advise the relevant business leader, which is what occurred.

[61] Ms Fuller said she understands the issues for Mr Clarke were that he only wished to work set hours each week, but did not want to have a reduction in remuneration arising from becoming a permanent employee. Mr Clarke said he denies there was any discussion with HR in 2016 regarding a reduction in remuneration or having set hours to work each week. He said his reason for wanting to become permanent part-time is not that he wants to work set hours each week, but that he wants to be able to access things like bank loans, which are currently denied to him being a casual employee.

[62] Ms Fuller said she was aware that on a number of occasions Mr Clarke had discussions with Mr Zubiri and Mr Tootell about becoming a permanent employee. She said these discussions did not result in a formal offer because Broadspectrum could not agree with Mr Clarke’s personal requirement as to set hours and no reduction in income. Mr Clarke said there was no outcome to these discussions, though Mr Tootell had confirmed he would pass onto HR Mr Clarke’s request to be made permanent part-time at 25-30 hours per week.

Closing submissions relating to interpretation of clause 10.9

[63] It was submitted clauses 10.8 and 10.9 provide for two categories of situations in relation to casual employees. It was said clause 10.8 precedes 10.9 in terms of the history of the enterprise agreement and clause 10.8 is intended to address long-term employees and to provide for them to become full-time or part-time employees. It was submitted clause 10.9 deals with casual employees who have been working systematic and regular hours of work.

[64] In terms of ‘systematic and regular hours of work’, it was submitted the onus is on Mr Clarke to demonstrate he has been working systematic and regular hours of work, and the only evidence in relation to the hours of work is annexed to Mr Parisella’s statement. It was submitted there is no basis for arguing Mr Clarke has worked systematic and regular hours, as there is a variation which is clearly apparent in the annexure to Mr Parisella’s statement.

[65] Broadspectrum submitted ‘depending on their pattern of work’ and ‘the operational requirements’ are qualifiers in clause 10.9. It was submitted “the proper operation of that clause is you must meet that test of systematic and regular hours and then you will be offered a full-time or part-time role depending on the pattern of work and the operational requirements.” 19

[66] Broadspectrum conceded that ‘shall’ has a mandatory aspect to it, but submitted it is then qualified. It was submitted for there to be an offer, there must be parameters and terms, such as hours and days, which can only be answered by reference to the qualifiers.

[67] As to ‘operational requirements’, Broadspectrum submitted it is the operational requirements of the employer. It was submitted there has been a period of reliability of hours where Mr Clarke has organised his life, but changes have been made with meals being prepared on site together with new hiring and the operational requirements have changed, as well as the needs of the business.

[68] Broadspectrum submitted it is an illogical interpretation of clause 10.9 20 to say having worked regular hours in 2014 to 2016, you have met the requirement, and then at any time can say ‘you need to make me an offer.’ It was further submitted that “there is a dispute about hours and the hours worked or the hours that Mr Clarke wants to work”21 and therefore there is a question as to whether there is capability of an offer being made.

[69] Broadspectrum submitted an offer was made to Mr Clarke in January 2018 and that was declined. It was further submitted that it is logical that having declined an offer, “the clock would…in effect reset.” 22 It was asserted the next conceivable period to then be offered permanent employment would be in July 2018.

Submissions of the parties regarding ‘systematic and regular hours’ as contained in clause 10.9 of the Agreement

[70] On 12 April 2018, Broadspectrum produced material indicating the hours worked each day by Mr Clarke for the period 3 December 2016 to 22 December 2017. The material encompassed raw payroll data, payslips and timesheets. Parties then filed submissions regarding ‘systematic and regular hours’ as contained in clause 10.9 of the Agreement, having regard to the material produced.

Mr Clarke’s submissions

[71] Mr Clarke submitted the payroll report shows that his hours are systematic and regular. He asserted the data shows he was employed, on average, 32 hours per week in the 12 months to December 2017. Mr Clarke further said that material provided by him and Broadspectrum shows that he was employed on regular shifts in the 12 months to 12 December 2017 as follows:

•  Sunday double shift 06.15 to 13.15 and 15.00 to 19.00

•  Monday 08.00 to 14.00

•  Thursday 08.00 to 14.00

•  Friday 05.00 to 13.00

[72] Mr Clarke submitted there are only three pay periods which do not show regular hours:

•  The period 22 December 2016 to 12 January 2017 – this period is a regular stand down period because the mess is closed for business;

•  The period 12 May 2017 to 28 May 2017 – Mr Clarke was on vacation; and

•  The period 14 November 2017 to 23 November 2017 – Mr Clarke was recovering from surgery.

[73] Mr Clarke submitted clause 10.9 of the Agreement does not define the term “systematic and regular hours.” He submitted the criteria the Commission will consider when determining whether a casual employee’s employment was on a regular and systematic basis was outlined in Ponce v DJT Staff Management Services Pty Ltd (Ponce). 23 It was submitted the Applicant’s witness statements and documentation from Broadspectrum shows the following criteria have been met during the period:

•  Mr Clarke was offered work regularly and generally accepted work when offered;

•  The total hours worked were roughly similar to the total ordinary hours that would be expected for a full-time employee;

•  A pattern or system has clearly been established where Mr Clarke was offered work regularly when there were client demands and Mr Clarke would accept that work;

•  Mr Clarke has worked as part of a regular crew and had a reasonable expectation of work on particular days of the week. The work was planned in advance and the labour requirements were known in advance but subject to the occasional change for circumstances beyond Broadspectrum’s control;

•  There was a clear pattern of work being offered with reasonable frequency and of the work being generally accepted;

•  Broadspectrum had a reasonable expectation that Mr Clarke would work when work was offered;

•  During the period under review there was a reasonable expectation of on-going employment; and

•  The evidence of what actually happened supports the finding that there was a reasonable expectation of on-going employment on the same basis as had been occurring during the period of employment.

[74] It was submitted that from the material filed in the matter, Mr Clarke worked systematic and regular hours as contained in clause 10.9 of the Agreement in excess of a period of six months. It was submitted that the Commission should order that Mr Clarke be employed on a permanent basis for the shifts referred to at [71] above.

Broadspectrum’s submissions

[75] Broadspectrum submitted in total across the 52 weeks, Mr Clarke worked 1,301.25 hours, at an average of 25.02 hours per week. Broadspectrum submitted Mr Clarke did not work during the following periods:

a) 24 to 30 December 2016;

b) 31 December 2016 to 6 January 2017;

c) 13 to 19 May 2017;

d) 20 to 26 May 2017;

e) 22 to 28 July 2017; and

f) 16 to 22 December 2017.

[76] As to the above periods, Mr Clarke submitted the periods at items ‘a’, ‘b’ and ‘f’ all occurred when the mess was closed and it was not possible for him to be rostered to work. As to items ‘c’ and ‘d’, Mr Clarke said he was on vacation from 12 May 2017 to 28 May 2017.

[77] In response to Mr Clarke’s submissions around when the mess was closed, Broadspectrum submitted this was ‘a representation that those weeks should be excluded from any calculation to determine average hours’ 24 and ignores two key points:

•  Operational Requirements – these change periodically arising from variations in client demands, including where no work is required to be performed. The fact there was a reduction in the requirement for these weeks is immaterial, as it relates to the overall operational requirements as determined by the client and the company; and

•  Casual Employment – Mr Clarke is a casual employee and paid accordingly, including appropriate loadings and penalties. Mr Clarke’s engagement is subject to being offered hours and shifts based on operational requirements across 52 weeks of the year.

[78] Broadspectrum submitted if the Commission was to accept the closure periods should be excluded from the calculation for determining average hours per week, being that the operational requirements dictated that no hours would (or could) be provided to Mr Clarke, then the Commission should also accept that every day that operational requirements meant that Mr Clarke was not provided with work should also be excluded from the calculation. Broadspectrum submitted this would be manifestly incorrect and unjust.

[79] Broadspectrum submitted at no stage did Mr Clarke work consecutive weeks of the same hours or days in the week, or with any regular crew. It submitted Mr Clarke did not work, on average or in total, roughly similar to the ordinary hours that would be expected for a full-time employee, but rather on only five occasions, he worked hours that were roughly similar, met or exceeded the ordinary hours.

[80] Broadspectrum further submitted that two offers of permanent part-time employment were made to Mr Clarke since his application to be classified as such in January 2018, being on 25 and 30 January 2018. It submitted Mr Clarke rejected both offers.

[81] Broadspectrum submitted Mr Clarke has been non-compliant with adhering to his rostered shifts during the period 6 January to 30 March 2018. It asserted:

•  on 12 occasions Mr Clarke has gone home early without notifying his shift supervisor;

•  on six occasions he has altered his finishing time;

•  on five occasions Mr Clarke has started work seven hours earlier than rostered; and

•  despite an undertaking given by Mr Clarke’s legal representative on 21 March 2018 that he would work the shifts as notified, on 27 March 2018, Mr Clarke commenced work two hours prior to his rostered shift and left 30 minutes early without notification to a supervisor.

[82] Broadspectrum submitted the above demonstrates a lack of regard for the rosters set by the company, the operational requirements of the company or reasonable management instruction.

[83] Broadspectrum submitted it has provided Mr Clarke with considerable consultation regarding the operational requirements of the business and he has been provided with the permanent shifts available. It submitted he attended a toolbox meeting on 14 August 2017 where all attendees were advised Broadspectrum was creating a new position of Head Chef and qualified employees were encouraged to apply. Broadspectrum submitted at a toolbox meeting on 24 October 2017, Mr Clarke was provided with an update on the then current vacant permanent positions of Supervisor, Head Chef and Chef, none of which Mr Clarke applied for. Broadspectrum submitted the permanent full-time Chef is rostered to work morning shifts Sunday to Thursday and the permanent Head Chef works morning shifts Monday to Friday. It asserted that following the conference on 2 February 2018, enquiries were made with the full-time chef regarding whether he would be willing to alter his current shifts from morning to afternoon to accommodate Mr Clarke’s request. The full-time chef was not willing to alter his current shift arrangement.

[84] Broadspectrum submitted its operational requirements require that two chefs be rostered on the morning shifts Monday to Friday and there is no requirement to have a third resource by way of a third chef on the morning shift Monday to Friday. It submitted it does have a vacancy for a permanent part-time chef to work late morning to early evening Monday to Thursday, morning and/or evening on Friday and Saturday and afternoon on Sunday.

[85] Clause 11.4 of the Agreement provides ‘the Roster shall be alterable at any time by agreement between the employee and the employer or by the employer giving fourteen days’ notice of such change or 7 days’ notice when the client cancels a requirement.’ Broadspectrum submitted it does not wish to enter into a permanent working arrangement with Mr Clarke then act on clause 11.4 of the Agreement by providing him with 14 days’ notice of a change to his rostered hours.

Relevant Principles

[86] The Full Bench of the Commission in AMWU v Berri Pty Limited (Berri) 25 concluded as follows in relation to the interpretation of a single enterprise agreement:

“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

1. The construction 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 disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision’s place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which 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.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”

[87] The Full Bench of the Commission in CFMEU v Endeavour Coal Pty Ltd (Endeavour Coal), 26 considered Golden Cockerel and Berri in the following terms:

“[42] In Golden Cockerel, the Full Bench set out authorities which make it clear that while the task of construction begins with consideration of the ordinary meaning of the words of the agreement, regard must be paid to the context and purpose of the provision or expression being construed. Those authorities make clear that context and purpose are relevant to construction and must be considered even where the words of the provision being construed appear, on their face, to have a clear and unambiguous meaning.

[43] In this regard, the Full Bench in Golden Cockerel set out at [29] the explanation of this point by the NSW Court of Appeal in Mainteck Services Pty Ltd v Stein Heurtey SA.Relevantly, that explanation emphasises the following matters:

•  Until a word or phrase is understood in the light of the surrounding circumstances, it is rarely possible to know what it means and there is always some context to any statement;

•  Language considered in its context will often have a clear meaning and context will often not displace that meaning – “but not always”;

•  To state that a legal text is clear reflects the outcome of an interpretation process and means that there is nothing in the context that detracts from the ordinary literal meaning and cannot mean that context can be put to one side;

•  The phrase used by Mason J in Codelfa “if the language is ambiguous or susceptible of more than one meaning” does not mean that the susceptibility of the language to more than one meaning must be assessed without reference to the surrounding circumstances and in order to determine whether more than one meaning is available it may be necessary to turn to context; and

•  Context has also been described as surrounding circumstances and the meaning of terms normally requires consideration not only of the text, but of the surrounding circumstances known to the parties and the purpose and object of the transaction.

[44] Further, the significance of context and purpose in the construction of an enterprise agreement was emphasised by a Full Bench of the Commission in Berri, where the relevant principle was summarised at [114] as follows:

“The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

1. The construction 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 disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision’s place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates …” 27 (references omitted)

[88] Further, the Full Bench of the Commission in United Firefighters Union of Australia v Emergency Services Telecommunications Authority T/A ESTA 28 stated:

“[35] As stipulated in Berri, the starting point for interpreting an enterprise agreement is to have regard to the ordinary meaning of the words used. Further, the text must be interpreted in the context of the agreement as a whole. Principles 7 and 10 elicited in Berri emphasise that ambiguity in a provision within an enterprise agreement must be identified before one is to have regard to evidence of the surrounding circumstances. However, principle 8 makes it clear that, in determining whether ambiguity exists, one may have regard to evidence of the surrounding circumstances. That is, such evidence can be used to identify and resolve any ambiguity.”

Consideration

[89] As outlined in Endeavour Coal,the decisions in Golden Cockerel and Berri make it clear that context and purpose are relevant to the construction of an agreement and must be considered even where the words of the provision being construed appear, on their face, to have a clear and unambiguous meaning.

[90] Turning therefore to the text of the Agreement, the following clauses provide context as to how Clause 10.9 should be interpreted:

•  Clause 5.2 of the Agreement – “the parties agree that this agreement constitutes the beginning of a process of continuous performance improvement to ensure that services are provided to HMAS Cerberus and RAAF Williams at the required standard and on the most cost effective basis and so enhance future security of employment.”

•  Clause 5.3 of the Agreement – “The Company is committed to the employment of permanent employees on either a full-time or part-time basis.”

•  Clause 5.4 of the Agreement – “The parties are committed to the willingness of employees to recognise the need to be flexible within the jobs, duties and classification structure of this Agreement and the recognition that improving work Organisation means working towards a flexible and interchangeable ethos.”

•  Clause 5.6 of the Agreement – “The Company is committed to moving all employees engaged at level 1 to level 2 after completing 6 months of service with the Company, subject to satisfactory performance.”

•  Clause 10.8 of the Agreement – “The consultative committee will discuss, on an as required basis, individual cases of casual employees working regular shifts over a long term. Where it is deemed appropriate, and the ongoing business needs support it, these employees will be offered the opportunity to move to either permanent full-time or part-time employment as deemed applicable.” (my emphasis)

•  Clause 11.4 of the Agreement – “The Roster shall be alterable at any time by agreement between the employee and the employer or by the employer giving fourteen days’ notice of such change or 7 days’ notice when the client cancels a requirement.”

[91] It is apparent from the provisions in the body of the Agreement that:

•  Broadspectrum is committed to employing on either a full-time or part-time basis (Clause 5.3).

•  The parties recognise the role continuous improvement has in delivering a standard of service that meets client expectations while being cost effective, so as to enhance future security of employment (Clause 5.2).

•  The employees are committed to recognising the need to be flexible within jobs, duties and classifications and that improving work organisation means working towards a flexible and interchangeable ethos(Clause 5.4).

•  The commitment for movement to level 2 is enlivened after an entry level employee completes six months of service but is subject to satisfactory performance and it would seem logical that the six month period is measured from the commencement of employment (Clause 5.6).

•  Long-term casual employees are provided with an opportunity to become a permanent full-time or part-time employee at the discretion of Broadspectrum, only where “it is deemed appropriate” and “the ongoing business needs support it” (Clause 10.8).

•  Broadspectrum can unilaterally change an employee’s roster without being required to consult or obtain consent. It simply has to provide 14 days’ notice (Clause 11.4).

[92] It is worth re-stating Clause 10.9 of the Agreement:

“Where a casual employee has been working systematic and regular hours of work for a period exceeding six months they shall be offered either a full time or part time role depending on their pattern of work and the operational requirements. Where a casual employee declines the offer the position may be converted to a part-time or full-time role by the Company upon giving the employee 4 weeks’ notice.”

[93] There is no dispute as to meaning or fact and I find that Mr Clarke is a ‘casual employee.’

[94] As to the meaning of ‘has been working systematic and regular hours of work for a period exceeding six months’, there is a factual dispute between the parties as to whether Mr Clarke has been working systematic and regular hours of work for a period exceeding six months and there is no consensus as to when the six month period is measured from and to.

[95] The final phrase of the first sentence in Clause 10.9 is ‘depending on their pattern of work and the operational requirements’ and there is a dispute between the parties as to the meaning of this.

[96] The meaning of the second sentence of Clause 10.9 (“Where a casual employee declines the offer the position may be converted to a part-time or full-time role by the Company upon giving the employee 4 weeks’ notice.”) was not the subject of argument.

[97] Clause 10.9 appears to have commenced application when the Agreement commenced operation on 31 October 2013. It did not form part of the previous agreement that covered the parties. 29 There was no evidence from the parties as to what lay behind the inclusion of Clause 10.9, nor any evidence tending to establish objective background facts known to the parties.

[98] Turning then to the wording of Clause 10.9 and firstly, to the phrase “Where a casual employee has been working systematic and regular hours of work for a period exceeding six months”, I note the word ‘after’ is not used. Instead, the phraseis expressed in the present perfect progressive tense, which denotes a continuous action that has been finished at some point in the past or that was initiated in the past and continues to happen. It therefore seems to me:

a) a casual employee who works systematic and regular hours of work from the commencement of his or her employment could seek to invoke Clause 10.9 once his or her employment exceeds six months; or (equally)

b) if a casual employee’s hours of work become systematic and regular during the course of his or her employment and this persists for over six months and remains continuing, he or she could seek to invoke Clause 10.9.

[99] The phrase ‘regular and systematic’ was examined by Commissioner Roe in Ponce, albeit in different circumstances, and the Commissioner held:

“[66] It is the employment which must be on a regular and systematic basis. This does not mean that the hours or days of work must be regular and systematic…The previous authorities have also established that employment or engagement can be regular and systematic even…where the times and dates of work are quite irregular or are not rostered, or where there are breaks due to school holidays or other needs of the employee. In Summerton v Jabiru Golf, the hours worked varied from 3 to 39 in a week but it did not stop SDP Duncan finding that the employment was regular and systematic. It is clear that to establish “regular and systematic” there must be sufficient evidence to establish that a continuing relationship between the employer and the employee has been established. ...” (footnotes omitted)

[100] On reviewing the timesheets from week ending 9 June 2017 to week ending 15 December 2017 (a period exceeding six months), it is clear Mr Clarke worked double shifts the overwhelming majority of Sundays, early morning to approximately 2.00pm most Thursdays and Fridays, with similar hours again on Mondays, though on a slightly less number of occasions. Mr Clarke occasionally worked on Tuesdays and Wednesdays. It is clear that Mr Clarke was offered work regularly and accepted work, with a reasonable expectation of work on particular days and at particular times.

[101] I am persuaded this evidence establishes a “continuing relationship” between Broadspectrum and Mr Clarke and therefore, I am satisfied that for a period greater than six months prior to the lodgement of this Application, Mr Clarke was working systematic and regular hours of work.

[102] I am satisfied the meaning of the words ‘shall be offered either a full time or part time role’ is that the offer of a full-time or part-time role ‘will’ or ‘must’ be offered, as opposed to ‘might’ or ‘may’ be offered. Broadspectrum conceded that ‘shall’ has a mandatory aspect to it (but submitted it is then qualified).

[103] On 25 January 2018, Mr Darren Johns, EMOS Manager RAAF Williams, sent an email to Mr Clarke in the following terms: 30

“…

I have been advised that you are seeking to move from casual to a permanent part time position (PPT) in your current role of Chef with Broadspectrum.

As you are aware we are currently recruiting for a PPT [permanent part-time] Chef based at RAAF Williams.

The RAAF Williams PPT Chef will be working either 31.5 or 32.5 hours per week under the following roster arrangement:

… [email sets out two rostering options]

We wish to offer you a position.

Please confirm your acceptance via email, by no later than 5pm this Monday 29 January 2018.” (my emphasis)

[104] Despite subsequent email correspondence from Mr Clarke to Mr Johns in which he appears to be seeking to negotiate with respect to the offer, I am satisfied that Mr Clarke, having worked systematic and regular hours for a period exceeding six months, was offered a permanent part-time role on 25 January 2018.

[105] I turn next to the phrase ‘depending on their pattern of work and the operational requirements’ in Clause 10.9 of the Agreement.

[106] The Oxford English Dictionary defines ‘depending’ as:

“that depends on something else; contingent, conditioned, etc”

[107] The Macquarie Dictionary defines:

•  ‘depend’ as “to be conditioned or contingent”; and

•  ‘dependent’ as “conditioned; contingent” and “subordinate, subject.”

[108] The Australian Concise Oxford Dictionary defines ‘dependent’ as:

•  “depending (on), contingent, subordinate, subject…”

[109] Having regard to these definitions, I regard an offer of a full-time or part-time position required to be made pursuant to Clause 10.9 as being subject to the two conditions which follow, being:

1) the employee’s pattern of work; and

2) the operational requirements.

[110] I am not persuaded that Clause 10.9 obliges Broadspectrum to make an offer of permanent employment with a roster pattern which simply replicates the hours Mr Clarke had previously been working. This is because the clause also requires Broadspectrum to have regard to its operational requirements when making an offer of permanent employment.

[111] In this regard and notwithstanding Mr Clarke’s evidence of changes occurring in 2016, I am satisfied there were changes to the structure of Broadspectrum’s catering operations at RAAF Williams in 2017. I accept the evidence of Mr Parisella that a position of Catering Manager was filled on 26 April 2017. It is also apparent that from at least August 2017, Broadspectrum was recruiting for a Head Chef and permanent part time Chef and this was communicated at prestart meetings at which Mr Clarke was present. 31 That the operational requirements appear to suggest there is work for a permanent part-time Chef was acknowledged in closing submissions for Mr Clarke.32

[112] Mr Parisella said since November 2017, he has reviewed the Defence Base Services Contract in terms of operations and delivery and this has included reviewing all salary and wages, positions and rosters. He also gave evidence that Broadspectrum receives a lower rate of payment for weekend catering, reflecting the Department of Defence’s requirement for less catering on weekends.

[113] Broadspectrum has asserted its operational requirements required that two chefs be rostered on the morning shifts Monday to Friday and there is no requirement to have a third chef on the morning shift Monday to Friday. It further submitted the review of its catering operations had identified that it was uneconomical to have more than one catering staff member on a shift, particularly on weekends.

[114] Broadspectrum submits its operational requirements require:

•  One permanent full-time Chef to work a roster of morning shifts from Sunday to Thursday;

•  One permanent full-time Head Chef to work a roster of morning shifts from Monday to Friday;

•  a permanent part-time chef to work late morning to early evening Monday to Thursday, morning and or evening on Friday and Saturday and afternoon on Sunday.

[115] Mr Clarke maintains the operational requirements are such that there is work available during times that reflect his pattern of work.

[116] In terms of the context of the Agreement, I note that while there is the broad commitment by Broadspectrum to employ permanent employees, the Agreement also contains some fetters.

[117] Firstly, services provided to RAAF Williams are to be provided at the required standard and on the most cost effective basis and employees are committed to recognising the need to be flexible within jobs and duties. The notions encapsulate how and when labour might be deployed. Secondly, in the case of long-term casual employees, the opportunity to become a permanent full-time or part-time employee will only materialise where “it is deemed appropriate” and “the ongoing business needs support it.” Thirdly, Broadspectrum can unilaterally change an employee’s roster without being required to consult or obtain consent, provided 14 days’ notice is given.

[118] Therefore, having regard to the wording of Clause 10.9, together with the context of the Agreement, I am satisfied that when it fulfilled the requirement to offer Mr Clarke a permanent role via the email from Mr Johns to Mr Clarke on 25 January 2018, Broadspectrum was entitled to do so having regard to the operational requirements and more specifically, on terms that would fulfil its contractual requirements to RAAF Williams on the most cost effective basis.

Conclusion

[119] In light of the evidence and submissions before me, I am satisfied that Broadspectrum has complied with clause 10.9 of the Agreement.

DEPUTY PRESIDENT

Appearances:

Ms M Paszkiewicz of Counsel on behalf of Mr Clarke.

Mr D Klepac on behalf of Broadspectrum.

Hearing details:

2018.

Melbourne:

4 April.

Printed by authority of the Commonwealth Government Printer

<PR608290>

 1   Transcript PN 752-757.

 2 (2006) 149 IR 399 at [68] and [91].

 3 Exhibit A4 at [2].

 4   Exhibit A2 – Attachment K.

 5   Transcript PN 726.

 6   Transcript PN 49.

 7   Transcript PN 313.

 8   Transcript PN 328-329.

 9   Transcript PN 336-337.

 10   Transcript PN 271-272.

 11   Transcript PN 277-278.

 12   Transcript PN 69 and PN 75.

 13   Transcript PN 81.

 14   [2014] FWCFB 7447.

 15   Transcript PN 719.

 16   Transcript PN 720.

 17   Respondent’s Outline of Submissions dated 15 March 2018 at (6).

 18   Transcript PN 142.

 19   Transcript PN 672.

 20   Despite Transcript at PN 681, review of audio recording of hearing suggests submission was that it is an “illogical” interpretation.

 21   Transcript PN 682.

 22   Ibid.

 23   [2010] FWA 2078.

 24   Email to Chambers of Deputy President Clancy, 4.12pm on 23 April 2018.

 25   [2017] FWCFB 3005.

 26   [2017] FWCFB 4487.

 27   Ibid at [42]-[44].

 28   [2017] FWCFB 4537.

 29   Exhibit A5: TS (Australia) and The AWU Victoria Garrison Lifestyle Services Collective Agreement 2010-2013, [2010] FWAA 10044.

 30   Exhibit R1 – Attachment 2.

 31   Exhibit R2.

 32   Transcript PN 575.