Syntech Resources Pty Ltd T/A Cameby Downs Mine v Construction, Forestry, Maritime, Mining and Energy Union

[2019] FWC 439

[2019] FWC 439

FAIR WORK COMMISSION

DECISION

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

Syntech Resources Pty Ltd T/A Cameby Downs Mine
v
Construction, Forestry, Maritime, Mining and Energy Union
(C2018/5343)

DEPUTY PRESIDENT ASBURY BRISBANE, 6 MARCH 2019

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

OVERVIEW

[1] This Decision concerns an application made on 25 September 2018 under s. 739 of the Fair Work Act 2009 (the Act) by Syntech Resources Pty Ltd T/A Cameby Downs Mine (Syntech) for the Fair Work Commission to deal with a dispute that arises under the Cameby Downs Mine Enterprise Agreement 2014 1(the Agreement). The dispute relates to whether payment for attendances at pre-start meetings for certain employees engaged in the mining and maintenance operational areas at the Cameby Downs Mine is included in annual salaries prescribed by the Agreement. The application named the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU) as the Respondent to the dispute. The CFMMEU is covered by the Agreement and opposed the application on behalf of its members employed at the Mine.

[2] A conciliation conference was held in relation to the dispute, but the matter remained unresolved. The parties subsequently agreed on a question for arbitration and a statement of agreed facts. Directions were issued for the filing of written submissions and witness statements on which the parties intended to rely in support of their respective positions. A hearing was held on 6 December 2018 to give the parties an opportunity make oral submissions in support of their respective arguments. Neither party filed witness evidence and the matter has proceeded on the basis of the statement of agreed facts, outlines of submissions and oral submissions made at the hearing.

[3] The parties have agreed that the question for arbitration is:

“In the event that an employee is required to attend a pre-start meeting of up to 30 minutes outside of rostered hours, are they entitled to additional payment for that attendance?”

[4] Permission for Syntech to be represented by a paid agent was granted on the basis that the Agreement provides for such permission in clause 24 and in any event, I was satisfied that representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter. Ms Sarlos represented the CFMMEU with Mr Brunker and Mr Drinnen.

THE AGREED STATEMENT OF FACTS

[5] It is convenient to extract the full statement of agreed facts, which is as follows:

“Background

1. Cameby Downs Mine (the Mine) is situated in the Surat Basin, in the State of Queensland.

2. The Mine is owned by Syntech Resources Pty Ltd (the Applicant).

3. From [on] or about December 2010 to December 2013, the Mine was operated by McMahon Contractors Pty Ltd (McMahon).

4. On 25 August 2010, the Fair Work Commission approved the Cameby Downs Greenfields Agreement 2010 (the Greenfields Agreement).

5. The parties to the Greenfields Agreement were McMahon and the Construction, Forestry, Mining and Energy Union, now known as the Construction, Forestry, Maritime, Mining and Energy Union (the Respondent).

6. The nominal expiry date of the Greenfields Agreement was 6 December 2013.

7. In August 2011, Yancoal acquired the Applicant. McMahons continued operating the mine until December 2013, when Yancoal took over as owner operator.

8. The Greenfields Agreement and transferring employees transferred to the Applicant under a transfer of business.

9. The Applicant engages employees in three distinct operational areas. Those operational areas are Mining, Maintenance and Coal Handling and Processing Plant (CHPP).

10. On 9 October 2014, the Fair Work Commission approved [the Agreement], with a nominal expiry date of 16 October 2017.

11. The Enterprise Agreement is made between the Applicant and its employees. The Enterprise Agreement also covers the Respondent.

12. Appendix 1 of the Enterprise Agreement provides for 12 and 10.5 hour shift arrangements.

13. Employees are remunerated by way of annual salaries as set out in Appendix 1.

14. Annual salaries are defined in clause 11 of the Enterprise Agreement to mean:

…an employee’s remuneration for 52 weeks consisting of compensation for all hours worked including rostered hours, time taken to travel between the site entrance and the designated start place for work including a maximum 30 minutes for pre-start meetings and hot seat changeovers, weekend work, public holidays worked and not worked, shift work and all other payments and allowances other than those separately and specifically provided for in this Agreement.

15. The Applicant currently employs:

a. 51 employees in its mining operations;

b. 27 employees in its maintenance operations; and

c. 14 employees in the CHPP.

16. The current roster arrangements are:

Mining

a. 6 on, 4 off (10.5 hour day and night shifts)

Maintenance

b. 7 on, 7 off (12 hour day and night shift, or day shift only)

c. Monday to Friday (10 hour day shift)

CHPP

d. 6 on, 4 off, 6 on 5 off (12 hour day and night shift)

e. 4 on, 3 off (12 hour day shift)

Current Enterprise Bargaining Negotiations

17. The Applicant, the Respondent and a number of employee bargaining agents commenced negotiating a further enterprise agreement in or around October 2017.

Pre-start Meeting

18. During enterprise bargaining negotiations the Applicant identified that it was considering implementing pre-start meetings for employees engaged in Mining operational areas outside of rostered hours. The Applicant advised the other parties that it was of the view that no further payment was required to be made to its employees for attendance at the proposed pre-start meetings.

19. The Applicant did not, and does not currently, require employees engaged in its mining operations to attend pre-start meetings.

20. The Applicant did not, and does not currently, require employees (other than two leading hands) engaged in its maintenance operations to attend pre-start meetings.

Dispute Procedure

21. The parties have complied with the Disputes Procedure contained in the Enterprise Agreement.

22. The parties consent to the Fair Work Commission hearing and determining the Dispute.”

[6] In response to questions from the Commission, Mr Drinnen said that the employees work a 10.5 hour day. Generally they stop their machines and prepare for a changeover with the incoming shift after that shift has attended a pre-start meeting. Occasionally the change of shift is delayed if the incoming shift has a longer than normal pre-start meeting although this is not a regular occurrence and as a rule the shift does not extend beyond 10.5 hours. It was also confirmed that employees working on either of the two rosters set out in Appendix 1 of the Agreement have been required to attend for an additional period to participate in a pre-start meeting. Neither party objected to or contradicted Mr Drinnen’s oral statement and I accept it on this basis.

RELEVANT CLAUSES OF THE AGREEMENT

[7] The Agreement was approved by Senior Deputy President Harrison by a Decision dated 9 October 2014. 2 The CFMEU (now the CFMMEU) was noted as being covered by the Agreement. The Agreement came into operation on 16 October 2014 and nominally expired on 16 October 2017. The ‘parties’ to the Agreement are Syntech Resources Pty Ltd and employees engaged at the Cameby Downs Mine in one of the classifications contained in the Agreement. The Agreement “overrides and replaces in its entirety” the Black Coal Mining Industry Award 2010.

[8] Clause 5 provides that the company may direct employees to carry out any duties within their skills, competence and authorisation and may be required to acquire new skills and undertake training as required. Hours of Work and Rosters are dealt with in clause 6 as follows:

“6 Hours of Work and Rosters

Ordinary hours of work shall be a maximum of 35 hours per week, with ten hours being the maximum ordinary hours applied to any one shift and averaged over the roster cycle.

The Company may carry out all operations 24 hours per day, 7 days per week in shift lengths up to 12.5 hours and implement rosters to meet the needs of the business after consideration of the health and safety of employees and consultation in accordance with clause 23.

Employees will be required to work the rostered hours as notified to them, which may include rostered overtime hours and the requirements to work week-ends, nightshifts and public holidays in accordance with their roster.

With appropriate notice, the Company may require employees to work other rosters or roster patterns or to change start and finish times or change shift panels on a roster.”

[9] Clause 7 provides:

“7 Designated Work Locations

Work will start and finish at the employee’s designated work location within the Company’s area of the operations. The designated work locations shall be:

• Mining administration area adjacent to the car part;

• CHPP muster point;

• Maintenance workshop muster point.

Travel to and from the employee’s designated work location prior to commencement and at the conclusion of an employee’s daily shift shall be in the employee’s own time.”

[10] Base hourly rates are provided for in clause 10. Annual Salary and related matters are dealt with in clause 11 as follows:

“11 Annual Salary

‘Annual Salary’ means an employee’s remuneration for 52 weeks consisting of compensation for all hours worked including rostered hours, time taken to travel between the site entrance and the designated start place for work including a maximum 30 minutes for pre-start meetings and hot seat changeovers, weekend work, public holidays worked and not worked, shift and all other payments and allowances other than those separately and specifically provided for in this Agreement.

The Annual Salaries which apply to a range of rosters are included in Appendix 1.

Annual Salaries for other rosters will be determined by applying the Base Hourly Rate for the Employee’s classification level in clause 10 and the penalty rates contained in Clause 12, to the number and spread of hours of work contained in the roster including overtime hours, weekend and shiftwork penalties and public holidays applicable to the roster.

‘Annual Salary rate’ means the employee’s Annual Salary prorated for the relevant period of time.

Aggregate Hourly Rate is the Annual Salary divided by 52 weeks divided by the average number of rostered hours per week over the roster cycles. See table in 12.6.

For the purpose of safety related training, employees will be required to attend at least 1 scheduled training day per annum outside of their normal Rostered Hours at a place specified by the Company. Payment for this day is deemed to be included in the employee’s Annual Salary.

[11] Clause 12 provides, in part:

“12 Calculation of Annual Salaries – New Rosters

The following penalty rates applied to the Base Hourly Rate and the number and spread of rostered hours are used to calculate Annual Salaries for rosters not included in Appendix 1. These rates are not used to calculate overtime payments for hours worked in excess of rostered hours of work, which are outlined in clause 12.6.

The clause goes on to provide for: ordinary hours of 35 per week averaged over the roster cycle; penalty rates for rostered overtime; penalty rates for ordinary hours worked on weekends; shift loadings; and public holiday rates. The effect is that those rates are used to calculate Annual Salaries for rosters not included in Appendix 1 of the Agreement. As set out in clause 12, sub-clause 12.6 prescribes payments for hours worked in excess of rostered hours or work. Sub-clause 12.6 provides:

“12.6 Training & Communication Days

The Company may require employees to work reasonable additional hours outside their rostered hours of work including for the purposes of training and communication.

Payment for each hour worked in addition to rostered hours is outlined for each classification level in the table below…”

[12] Under sub-clause 12.6 there is a table of Aggregate Hourly Rates for each classification of employee which increases annually throughout the operative term of the Agreement. Those rates are said to apply to “each hour worked in addition to rostered hours”.

[13] Clause 24 of the Agreement provides as follows:

“24 Dispute Resolution Procedure

In the event of any dispute arising about matters in this Agreement, or matters pertaining to the employment relationship or in relation to the National Employment Standards, it shall be dealt with in accordance with the following procedure:

• The matter in the first instance will be discussed between the employee and their immediate Supervisor.

• If the matter remains unresolved, it may be referred for discussion to successively higher levels of site management.

• If the matter remains unresolved it may be referred by either the employee or the Company to the Fair Work Commission or an independent facilitator acceptable to the employee and Company for conciliation, or if the employee and the Company agree, to settle the dispute.

Whilst the above procedure is being followed, work shall proceed in accordance with the reasonable directly of the Company.

The employee and/or the Company may choose to be represented while participating in this procedure.”

[14] Appendix 1 to the Agreement contains 2 Rosters described as follows:

• 4 Panel 7 Day/Night 12 Hr (+HSC) Roster;
• 3 Panel 6 Day/Afternoon 10.5 hr Roster

[15] The pattern of each roster is set out in Appendix 1. Below the two rosters set out in Appendix 1 is an annual salary for each classification level for each roster and increases to that salary in the three year operative term of the Agreement. Appendix 1 is as follows:

4 Panel 7 Day/ Night 12 hr (+HSC) Roster

Week	Mon	Tues	Wed	Thur	Fri	Sat	Sun
1	D	D	D	D
2	N	N	N	N	N
3	D	D	D
4	D	D
5	N	N	N	N
6	D	D	D	D	D
7	N	N	N
8	N	N

Annual Salaries
Level	Commencement	After 1 Year	After 2 Years	After 3 Years
Developing	$79,135	$80,718	$82,332	$83,979
Classification A	$104,414	$106,502	$108,632	$110,805
Classification B	$114,306	$116,592	$118,924	$121,302
Classification C	$117,603	$119,955	$122,354	$124,801

3 Panel 6 Day/ Afternoon 10.5hr Roster

Roster Pattern

Week Week	Mon Mon	Tues	Wed	Thur	Fri	Sat	Sun
1	A	A	A	A	A	A
2	D	D	D
3	D	D	D

Annual Salaries
Level	Commencement	After 1 Year	After 2 Years	After 3 Years
Developing	$73,498	$74,968	$76,467	$77,997
Classification A	$96,976	$98,916	$100,894	$102,912
Classification B	$106,164	$108,287	$110,453	$112,662
Classification C	$109,226	$111,410	$113,639	$115,911

APPROACH TO CONSTRUCTION OF ENTERPRISE AGREEMENTS

[16] The approach to the construction of industrial instruments such as enterprise agreements was most recently summarised in a Decision of a Full Bench of the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd 3 (Berri) 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 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.”

[17] In CFMEU v Endeavour Coal Pty Ltd T/A Appin Mine 4 the Full Bench of the Commission held that the context of an agreement provision is significant. In this regard, the Full Bench set out the explanation of this point by the NSW Court of Appeal in Mainteck Services Pty Ltd v Stein Heurtey SA5 emphasising 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 6 and there is always some context to any statement;7

• Language considered in its context will often have a clear meaning and context will often not displace that meaning – “but not always”; 8

• 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; 9

• 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; 10 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 11

[18] The case law in relation to the approach to the construction of enterprise agreements makes it clear that context and purpose are relevant to the construction of provisions in an enterprise 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. The following observations of Madgwick J in Kucks v CSR are also apposite in the present case:

“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.

But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.” 12

LEGISLATIVE PROVISIONS

[19] The Legislative provisions in relation to the jurisdiction of the Commission to deal with a dispute pursuant to dispute settlement procedures in enterprise agreements are s. 595 and s. 739 of the Act. Section 595 states:

“595 FWC’s power to deal with disputes

(1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:

(a) by mediation or conciliation;

(b) by making a recommendation or expressing an opinion.

(2) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

Example: Parties may consent to the FWC arbitrating a bargaining dispute (see subsection 240(4)).

(3) In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.

Example: The FWC could direct a person to attend a conference under section 592.

(5) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section.”

[20] Section 739 states:

“739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

[21] The Commission’s powers to deal with disputes derive, in the case of an enterprise agreement, from the terms of the disputes settlement procedure contained in the enterprise agreement. As a Full Bench of the Commission concisely observed in CFMEU v North Goonyella Coal Mines Pty Ltd: 13 the Commission may deal with a dispute only on application of a party to the dispute (s.739(6)); is prohibited from exercising any powers limited by the dispute settlement procedure (s.739(3)); may arbitrate only if the agreed dispute settlement procedure permits it to do so (s.739(4)); and must not make a decision that is inconsistent with the Act, the enterprise agreement and any other applicable Fair Work instrument (s.739(5)).

[22] I am satisfied that an application for the Commission to deal with the dispute has been made by a party to the dispute; Syntech. The dispute settlement procedure does not explicitly provide that the Commission is permitted to arbitrate in those words but I accept that the words “to settle the dispute” must mean to settle by means other than conciliation, if the employee and Company agree, which I take to mean arbitration. The parties accept that the Commission is arbitrating the dispute and that a determination will be made in relation to the question they have agreed upon for arbitration.

SUBMISSIONS

Syntech

[23] Syntech submits that the starting point is to determine if the Agreement has a plain meaning or is ambiguous or susceptible of more than one meaning. The principal entitlement of employees to remuneration under the Agreement is contained in clause 11 which defines specific salary arrangements for employees engaged on rosters contained in Appendix 1 and a mechanism under clause 12 for determining salary arrangements for other rosters. Syntech submits that clause 11 of the Agreement is plain; the Annual Salary compensates for all hours worked, including a maximum of 30 minutes for pre-start meetings.

[24] According to Syntech, support for this proposition, beyond the definition of “Annual Salary”, is to be found in the absence of penalty or overtime provisions in the Agreement for employees engaged on an Annual Salary. The calculation or mechanism in clause 12 is for the prospective determination of Annual Salaries for rosters other than those contained in Appendix 1. In its written submissions Syntech contended that the 12 mechanism is not a pseudo penalty rates clause for work performed beyond a roster in Appendix 1. The third paragraph in clause 11 indicates that the clause 12 mechanism operates by reference to the additional roster alone.

[25] In oral submissions, Syntech conceded that clause 12.6 of the Agreement is a mechanism that is treated by the parties as a general overtime provision. 14 Syntech further submitted that clause 12 has two purposes: a mechanism by which new rosters can be established and that subclauses 12.5 – 12.8 provide additional benefits to employees working outside of the rosters in Appendix 1 or otherwise established in accordance with the Agreement. Syntech also contended that the CFMMEU’s submission that work can only be performed within rostered hours should not be accepted and pointed to a number of provisions in the Agreement which contemplate work outside rosters including clause 12.6, the final paragraph of clause 11 and most relevantly, clause 7. Clause 7 provides that work will start and finish in the employee’s designated work location and then establishes locations relevant to the individual operational areas of the Mine.

[26] The clause goes on to state that travel to and from the designated work location prior to the commencement and at the conclusion of work, is in the employee’s own time. According to the submissions of Syntech, the distance from the car park to designated work locations is short and it would take no more than five minutes for employees to travel to such locations. Accordingly, the reference to thirty minutes for pre-start meetings and hot seat changeover indicates that more would happen in that time and that the thirty minutes includes travel time and time spent in pre-start meetings.

[27] Syntech contends that a thirty minute period including travel time between the Mine entrance and the work location and a pre-start meeting is included in the salary and employees are receiving the benefit of that time which they are not being required to work. Syntech also contends that the Agreement was approved and found to pass the Better Off Overall Test on the basis that the additional half an hour was built into the salary.

CFMMEU

[28] The CFMMEU submits that clause 11 does not incorporate payment for a pre-start meeting of up to 30 minutes in addition to the rosters contained in Appendix 1. Should employees be required to attend such a meeting, the CFMMEU submits that they are entitled to additional remuneration, in addition to the Annual Salary.

[29] The CFMMEU bases its case on the following matters:

1. Where attendance at a pre-start meeting is required it is plainly an attendance within rostered hours; and

2. Syntech does not have the authority to require attendance at a pre-start meeting outside of rostered hours; or

3. In the event that Syntech is able to require attendance at a pre-start meeting outside of rostered hours, that attendance will attract additional remuneration; or

4. If it is determined that attendance at pre-start meetings is to attract no additional remuneration, that finding is limited to meetings which occur during the time taken to travel between the site entrance and the designated start place of work.

[30] The CFMMEU also submits that clause 11, having regard to its context and purpose, is clear. The Annual Salary is paid to remunerate employees for hours worked. Attendance at pre-start meetings is included as part of hours worked. Up to this point the CFMMEU submits that the parties are in agreement that the dispute arises when considering what is included in rostered hours and, depending upon the answer to that question, whether additional work attracts additional remuneration.

[31] As to the first contention on which the CFMMEU bases its case, the CFMMEU submits that the definition of Annual Salary should be interpreted in a way that “all hours worked” includes pre-start meetings, weekend work, public holidays worked and shift work. However, the specific reference to each of these as being included in “all hours worked” does not exclude them from the meaning of “rostered hours” and they are merely examples of hours worked that are both rostered hours and included in the annual salary. Ultimately the CFMMEU submitted that this interpretation was to the effect that these types of work or hours are both “hours worked” and “rostered hours”.

[32] To interpret the provision otherwise would mean that working in accordance with the roster was “somehow not working rostered hours” and contrary to the specific terms of the Agreement. In addition, this would enable Syntech to require its employees to work, un-rostered and without additional payment, on weekends, public holidays and on other shifts.

[33] Syntech’s position, it is submitted, does not deal with the “practical challenges” of requiring attendance for work outside of a roster. Additionally, Syntech’s position does not deal with the fairness of Syntech’s interpretation which has the effect that Syntech retains the sole discretion to require attendance at work outside a roster and without additional remuneration. It submitted that this interpretation is plainly absurd and cannot have been the intention of the drafters of the Agreement. An alternative – and in the CFMMEU’s submission – a more favourable interpretation, is one that treats pre-start meetings in exactly the same way as weekends, public holidays and shift work – as part of the hours worked and rostered hours. According to the CFMMEU such attendances do not attract additional remuneration because they are already remunerated as part of those rostered hours.

[34] In relation to attendance outside of rostered hours, the CFMMEU accepts that the Agreement allows Syntech to require employees to attend a pre-start meeting but only as a part of their rostered hours, being hours that are remunerated as part of the Annual Salary. Where attendance is required outside of rostered hours, the dispute is to whether additional remuneration is required for those hours. The CFMMEU submits that there are two questions: can Syntech require attendance outside of rostered hours and, if so, are employees entitled to additional remuneration for such attendance?

[35] As “rostered hours” is not defined in the Agreement, the CFMMEU submits that reference should be made to the Oxford Dictionary which defines “roster” as a “list or plan showing turns of duty or leave for individuals or groups in an organisation”. Similarly, “hour” is defined as “a period set aside for some purpose (lunch hour; keep regular hours)” or “a fixed period of time for work, use of a building, etc (office hours; opening hours)”. Taking these two definitions together, the CFMMEU submits that the term “rostered hours” has its plain meaning; the period of time for work or duty as shown on a list or plan – the hours in which a person is requested or required to attend for work. In oral submissions the CFMMEU also referred to the Black Coal Mining Industry Award 2010 as part of the context in which the Agreement was made and pointed to the manner in which that Award deals with rostered hours defining them as ordinary hours of work and rostered overtime.

[36] The CFMMEU submits that clause 11 of the Agreement characterises attendance at a pre-start meeting as part of “all hours worked” and so attendance at a pre-start meeting is work. Work is required according to the rostered hours. It follows that there cannot be a requirement to work hours outside of rostered hours without the payment of additional remuneration. For Syntech’s interpretation to be preferred, the CFMMEU submits that it is necessary to interpret work at a pre-start meeting as being un-rostered and/or not required. A pre-start meeting is intrinsically linked to the performance of work and is, understandably, “required”. It is also temporally linked to the performance of work in that it occurs immediately before work.

[37] The Agreement cannot be interpreted in a manner that gives Syntech the sole discretion to require attendance outside of rostered hours. Where the Agreement intends to grant such discretion to Syntech it explicitly does so (for example clause 6). The Agreement does not explicitly allow Syntech to require attendance for a pre-start meeting outside of rostered hours so therefore an interpretation consistent with such discretion is not preferred. Should it be determined that Syntech is permitted to require attendance at a pre-start meeting outside of rostered hours, the CFMMEU submits that such attendance attracts additional remuneration.

[38] According to the CFMMEU, a fundamental component of the employment relationship is the wages/work bargain. Where work is required, payment is required, unless the wages/work bargain is displaced. The Agreement does displace the wages/work bargain in some instances, for example at clause 7. The interpretation advanced by Syntech would permit an additional 104 hours of work, presumably per year, without additional payment. An interpretation consistent with maintaining the wages/work bargain unless a specific intention to the contract is evidence should be favoured.

[39] The CFMMEU submits that Syntech’s position in relation to the absence of penalty or overtime provisions should not be accepted. Firstly, the Agreement does provide for penalty and overtime rates in clause 12.6 and that mechanism is not limited to new rosters. Secondly, even if the Agreement was totally devoid of any penalty or overtime provision, this does not support an interpretation that would result in additional work for no additional remuneration.

[40] Should the Commission find that employees can be required to work the CFMMEU submits the Commission should find it must be remuneration “at the very least” of the aggregate hourly rates in clause 12.6 of the Agreement. In the alternative and if the Commission’s interpretation is against each of those propositions, the CFMMEU submits that a distinction should be drawn in relation to which pre-start meetings do not require additional remuneration. The CFMMEU submits that an unpaid pre-start meeting can only occur in the time taken to travel between the site entrance and the designated start place for work. This interpretation arises from the wording in clause 11 of the definition of “Annual Salary” where the phrase includes:

“...time taken to travel between the site entrance and the designated start place for work including a maximum 30 minutes for pre-start meetings and hot seat changeovers…”

[41] As the designated start place for work is set out in clause 7 of the Agreement, where a pre-start meeting occurs during travel it will fall within the scope of travel time which the Agreement provides is unpaid. I put to the CFMMEU at the hearing that if this interpretation was correct, employees would be participating in a pre-start meeting whilst walking or driving to the point at which they would start work. Ms Sarlos for the CFMMEU accepted that this may be “a little absurd” 15 given that the short distances employees are travelling to their starting points.16

[42] In submissions in reply, the CFMMEU contended that if Syntech wishes to introduce a pre-start meeting for employees the annual salary provisions in the Agreement permit the Company to do so without any additional payment, provided that the total hours of work remain within the roster the employees are required to work as set out in Appendix 1 to the Agreement. The CFMMEU further contends that if Syntech’s interpretation of the Agreement was accepted, the requirement would be for employees to attend work for 11 hours and be paid for a 10.5 hour shift. Such an interpretation could not be correct as it would result in employees performing work without remuneration. If Syntech wishes to introduce a pre-start meeting outside the hours provided for in the roster, then the Company must extend the hours in the roster and provide additional payment for such hours in accordance with clause 12 of the Agreement.

[43] In oral submissions the CFMMEU also said that the idea that a regular, required and scheduled component of hours worked would not be considered to be part of ordinary hours is absurd and as Ms Sarlos for the Union put it:

“Notwithstanding all of the above, simply on a practical level, it's difficult to comprehend how a required attendance of up to 30 minutes, can be unrostered.  If it's up to 30 minutes, are we allowed to turn up with 27 minutes to come?  Are we allowed to turn up with eight minutes to come?  How is it determined?  How is it communicated?  Is non-attendance disciplined?  How does it work with the meal break requirements of clause 8?  It can hardly be that the applicant seeks to have employees that work up to half an early on their own time, only to then provide them with an extra 30 minutes meal break on site.

Construction of industrial instruments should contribute to a sensible industrial outcome.  Where an absurdity arises, one should see whether any other meaning capable of operating would see a more reasonable result.  In our submission, a more reasonable result would be that where pre-start meetings are required, they are to form part of rostered hours.  Not only is this reasonable, but it would also adhere to industry standards where that is generally how pre-start meetings are dealt with.” 17

CONSIDERATION

[44] The issue in dispute is whether the Agreement permits or provides for Syntech to require employees to attend a pre-start meeting so that they will be at work for a period in excess of the hours of work provided for in either of the rosters in Appendix 1 while still paying the annual salary for the particular roster or whether the annual salary incorporates a period of work of up to 30 minutes per shift in addition to the rostered hours for the relevant shift, for the purposes of employees attending pre-start meetings.

[45] The starting point for the construction of an enterprise agreement is the text of the disputed term which is found in the first paragraph of clause 11 of the Agreement. The disputed term which is the first paragraph of clause 11 is a definition of “annual salary” and what it comprises. That paragraph provides that “annual salary” means an employee’s remuneration for 52 weeks consisting of compensation for “all hours worked including rostered hours, time taken to travel between the site entrance and the designated start place for work including a maximum of 30 minutes for pre-start meetings and hot seat changeovers, weekend work, public holidays worked and not worked, shift work and all other payments and allowances other than those separately and specifically provided for in this Agreement.” (emphasis added)

[46] On a plain reading of the words of the first paragraph of clause 11 of the Agreement, the use of the term “including” after the term “worked” has the effect of deeming the periods of time or activities listed as work. The effect is that pre-start meetings are deemed to be work for the purposes of the clause. This is consistent with the ordinary meaning of the term “worked” when used as a verb as it is in the paragraph in dispute. Accordingly a pre-start meeting is a period of time that is “worked” for the purposes of the clause. Employees are required to be at their starting point for the purposes of attending such meeting at a particular time and are performing work while in attendance. The parties accept that this is so but simply disagree on how this work is remunerated.

[47] It is also apparent that all of the tasks or matters listed in the paragraph in question are included in the salary. The use of the term “including” before the tasks or matters is consistent with the fact that time taken for some of those tasks or matters would not automatically be deemed to be work if work is given its usual meaning – for example travel between the site entrance and the dedicated start place for work. I can see no basis for finding that the second use of the term “including” in the paragraph should be given a different meaning. Accordingly, the intention of the clause is to make clear that the annual salary includes a maximum of thirty minutes which may be used for pre-start meetings and hot seat changeovers and which includes travel between the site entrance and the designated start place for work. The reference to the inclusion of these specified matters is because the ordinary meaning of “hours worked” may not include such matters.

[48] It is arguable that the provision in dispute is ambiguous on the basis that it is not clear from the wording whether the pre-start meeting and/or hot seat changeover is included in the salary to the extent that employees can be required to work additional hours to those contained in the rosters, to a maximum of 30 minutes per shift to undertake some or all of those activities. However, even if the clause is unambiguous on its face, it is permissible to consider contextual matters as an aide in the construction of the Agreement. Accordingly, I turn to consider the disputed provision in the context of the Agreement as a whole.

[49] As previously noted, the disputed provision is essentially a definition of annual salary and what is encompassed in the annual salary. The second paragraph of clause 11 which appears directly under the disputed provision states that annual salaries apply to a range of rosters which are set out in Appendix 1 to the Agreement. This paragraph makes clear that annual salaries relate to particular rosters. The third paragraph of clause 11 makes clear that if a roster other than the rosters in Appendix 1 is developed then an annual salary for that roster will be determined using the formula set out in that paragraph and the penalty rates in clause 12 and applying them to the number and spread of hours in such roster.

[50] Further, the next paragraphs of clause 11 define “Annual Salary rate” and “Aggregate Hourly Rate” respectively. Relevantly, the definition of “Aggregate Hourly Rate” provides that such rate is established by dividing the Annual Salary by 52 weeks and further dividing by the average number of rostered hours per week over the roster cycle. There are only two rosters set out in Appendix 1 to the Agreement. The first roster set out in Appendix 1 is worked over a roster cycle of eight weeks with 4 panels of employees working 12 hour shifts rotating between day and night shifts. The second roster is worked over a cycle of three weeks with 3 panels of employees working 10.5 hour day and afternoon shifts. There are specified salaries for each of these rosters for each classification of employees which increase annually over the period of operation of the Agreement.

[51] As previously stated the salaries relate to particular rosters with maximum shift lengths of 12 hours and 10.5 hours respectively. It is clear from the terms of Appendix 1, read in conjunction with clause 11, that the salaries and the rosters are linked. If the salaries include compensation for time spent by employees undertaking a range of tasks and activities deemed to be hours worked, then it follows that all work including those activities and tasks, must be undertaken in the time frame covered by the roster to which the salary relates.

[52] To require employees to attend at work for longer than the specified shift duration on all or any days of the roster would in effect be establishing a new roster. For example, if employees working the Roster described in the Schedule as “3 Panel 6 Day/Afternoon 10.5 hr Roster” were required to attend for work for an additional period on each day or afternoon they were rostered to work the roster would cease to be a 10.5 hour roster. Further, the salaries specified in Schedule 1 in relation to that roster would not be applicable and as provided for in the third paragraph of clause 11 they would be required to be determined by reference to the formula set out in that paragraph. The annual salaries relate to the rosters and there is no basis to construe the Agreement so that – using the 10.5 hour roster as an example – employees can be required to attend for work for up to 11 hours on each shift in that roster and be paid a salary based on a roster which prescribes shifts with a length of 10.5 hours.

[53] This construction of the Agreement is also supported by the fact that the sixth paragraph of clause 11 makes clear that where employees are required to engage in a training day that is outside their rostered hours, such day is included in the annual salary. This indicates that where an additional attendance for the purposes of undertaking a work activity is required by the employer it is deemed to be included in the annual salary only where specifically stated. Further, clause 12.6 of the Agreement provides that: “The Company may require employees to work reasonable hours outside their rostered hours of work including for the purposes of training and communication.” The reference to “rostered hours” in this clause can only relate to rosters set out in Appendix 1 or to other rosters for which annual salaries have been calculated in accordance with clauses 11 and 12 of the Agreement.

[54] Further, the use of the term “includes” indicates that training and communication are not the only matters for which reasonable additional hours may be worked and would cover additional hours associated with a pre-start meeting. The fact that the Agreement does contain an additional rate for hours outside rostered hours of work also supports the construction of the Agreement that I favour.

[55] It is arguable that there is some tension between 7 of the Agreement which provides that travel to and from designated work locations which are specified in the clause at the commencement and conclusion of a shift is in the employee’s own time and clause 11 which provides that the annual salary compensates for a range of activities or matters including travel between the site entrance and the designated start place. It may be that the “designated start place” is different from the “designated work location” or that the distinction is because of the fact that the annual salary includes hot seat changeovers and pre-start meetings which may be conducted at a designated start place (which are specified in the Agreement) and then employees are required to travel further to get on machinery and conduct a changeover. Regardless, there is no basis for construing the Agreement so that Syntech has the right to require employees to work time that is additional to their rostered hours for the purpose of attending a pre-start meeting while paying the salary that relates to a roster which does not encompass that additional work time.

[56] The distinction between rostered hours and other hours is also apparent in clause 12.6 which establishes an uplifted rate for hours worked by employees in addition to rostered hours. This clause further emphasises the relationship between the rosters in Appendix 1 and the annual salaries. I also consider that the fact that the first paragraph of clause 11 refers to a maximum of 30 minutes for the listed activities does no more than establish the maximum time that may be spent on those activities within the shift lengths established by the roster. It is not an indication that Syntech is permitted to add a maximum 30 minute period of additional working time to each shift in the rosters in Appendix 1 while maintaining salaries which clearly relate to shift lengths of a shorter duration. There are no other relevant contextual matters which support the interpretation advanced by Syntech. To the contrary, the uncontested submissions from the bar table at the hearing establish that Syntech has not applied the Agreement in the manner for which it contends.

[57] To the extent that it has required employees to attend work for pre-start meetings it has done so by developing rosters other than the two rosters in Appendix 1 of the Agreement. As a result, by virtue of the third paragraph of clause 11 of the Agreement, if Syntech intends to require employees who are working one of the rosters in Appendix 1 of the Agreement to attend for work outside of their rostered hours, notwithstanding that the attendance is for the purposes of attending a pre-start meeting or undertaking one of the activities in the first paragraph of clause 11 of the Agreement, then it is required to either determine an annual salary for what is in effect a new roster, by reference to the formula in clauses 11 and 12 of the Agreement or pay employees for such time at the rate in clause 12.6 of the Agreement. In either circumstance the employee would be entitled to an additional payment either by virtue of the rates in clause 12.6 or because a new roster would be established requiring the determination of a new annual salary for that roster.

CONCLUSION

[58] For these reasons I answer the question for arbitration as follows:

“In the event that an employee is required to attend a pre-start meeting of up to 30 minutes outside of rostered hours, are they entitled to additional payment for that attendance?”

Yes.

DEPUTY PRESIDENT

Appearances:

Mr B Cooper of Livingstones on behalf of Syntech.

Ms E Sarlos on behalf of the CFMMEU.

Hearing details:

6 December.

2018.

Brisbane.

Printed by authority of the Commonwealth Government Printer

<PR704275>

 1   AE410567.

 2   [2014] FWCA 7132.

 3   [2017] FWCFB 3005 at [14].

 4   [2017] FWCFB 4487.

 5 [2014] NSWCA 184 at [71] – [85].

 6   Manufacturers’ Mutual Insurance Ltd v Withers (1988) 5 ANZ Ins Cas 60-853 at 75-343.

 7   Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2004] UKPC 6; [2005] 1 All ER 667 at [64].

 8   Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [78].

 9   Charter Reinsurance Co Ltd v Fagan [1997] AC 313 at 391 per Lord Hoffman, approved in Campbell v R [2008] NSWCCA 214; 73 NSWLR 272 at [48] (Spiegelman CJ, Weinberg AJA and Simpson J agreeing)

 10   Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; 76 NSWLR 603 at [17] cited in Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 310 ALR at [71] – [85].

 11   Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [40].

 12 Kucks v CSR Limited (1996) 66 IR 182 at 184.

 13   [2015] FWCFB 5619.

 14   PN74.

 15   PN40.

 16   PN41 to PN42.

 17   PN141 to PN142.