Tarakci v KDR Victoria Pty Ltd T/A Yarra Trams
[2023] FWCFB 119
•23 OCTOBER 2023
| [2023] FWCFB 119 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Tarakci & Ors
v
KDR Victoria Pty Ltd T/A Yarra Trams
(C2023/948)
| VICE PRESIDENT CATANZARITI DEPUTY PRESIDENT GOSTENCNIK DEPUTY PRESIDENT CLANCY | SYDNEY, 23 OCTOBER 2023 |
Appeal against decision [2023] FWC 252 of Deputy President O’Neill at Melbourne on 2 February 2023 in matter number C2022/6141 – permission to appeal refused.
The Appellants are employed by the Respondent, KDR Victoria Pty Ltd T/A Yarra Trams, as tram drivers. They have lodged an appeal against a decision of Deputy President O’Neill made on 2 February 2023 (Decision)[1] in which the Deputy President determined a dispute that had been referred to the Commission for determination under clause 11 of Part One of the Yarra Trams Enterprise Agreement 2019 – Operations (the Agreement). [2] The subject of the dispute concerned the content and structure of a new roster system known as the graduated roster, which replaced a rostering system that had been in place since the 1980s, described as the alternate roster.
The Deputy President was required to answer the following two questions:
Question 1: Would the implementation of the graduated rosters breach clause 19.2 of Appendix One of the Yarra Trams Enterprise Agreement 2019 - Operations?
Question 2: Should the Commission make an order enjoining the Respondent from implementing the graduated rosters?
The Deputy President answered both questions in the negative. The Appellant contends that the Deputy President misconstrued the Agreement and misdirected herself, and having erred in this construction task, thereby erroneously denied the Appellants relief. They ask the Full Bench to grant permission to appeal, quash the Decision and make a further decision pursuant to s.607(3)(b) of the Fair Work Act 2009 (the FW Act) answering “yes” to questions 1 and 2. The Appellants also contend the Full Bench should make an order in the terms of the enjoinder order sought by them at first instance that would require the Respondent to implement an alternating roster of shifts in accordance with clause 19.2 of Appendix One of the Agreement.
It is necessary at the outset to say a few things about the standard of appeal applicable. The answer to the first question given by the Deputy President turned on the proper construction of the Agreement. The answer was either correct or it was not. Decisions of this kind involve no discretion and appeals from such decisions are determined by the correctness standard.[3] It is not sufficient in an appeal to which the correctness standard applies for an appellant merely to point to alleged errors in the reasoning process or findings of subsidiary facts in the decision under appeal. Rather, an appellant must advance a positive case that a different answer to the question posed for determination is the legally correct answer.[4] So much is not in dispute.
Whether the answer given by the Deputy President to the second question involved an evaluative exercise tolerating a range of outcomes or allowed for only one correct answer or unique outcome is in contest. The Appellants accept question 2 tolerates more than one deliberative outcome.
However, the Deputy President had earlier accepted that “shift swapping is more difficult and complex under the graduated roster” but could still be done.[5] In answering the second question the Deputy President reasoned that “the introduction of the graduated roster structure provides substantial improvements in managing the risk of driver fatigue for those employees who work to the graduated roster, and for those who engage in substantial shift-swapping, results in a low impact because they can continue [to] do so”.[6] The Appellants say the Deputy President’s dispositive reasons, set out in the previous sentence, for rejecting this part of the Appellants’ case for an affirmative answer was either correct or not.
The Appellants contend that reasoning error, together with the Deputy President’s own finding that shift swapping was more difficult and complex under the graduated roster, demonstrates that the disposition was incorrect. Accordingly, they contend the correctness standard of appeal applies to this error.
The identification of appealable error is integral to an appeal, but that which amounts to "appealable error" in a decision cannot be properly understood without reference to a standard of appellate review.[7] Relevantly, appellate review of decisions may involve the application of the correctness standard, earlier described, or a review through the lens of House v The King.[8] The line between conclusions of a decision maker which attract the standard of appellate review applicable to an exercise of a discretion articulated in House v The King and conclusions of a decision maker attracting the correctness standard of appellate review is not bright, but it is said to be “tolerably clear and workable”.[9] It is not drawn by reference to whether the process of reasoning to reach a conclusion may be characterised as evaluative or is on a subject about which reasonable minds might differ. The line is drawn by reference to whether the legal criterion applied or purportedly applied by the decision maker to reach the conclusion demands a unique outcome, in which case the correctness standard applies, or it tolerates a range of outcomes, in which case the House v The King standard applies.[10]
We consider the standard of appellate review in relation to the Deputy President’s answer to question 2 is as articulated in House v The King. Question 2 was framed in broad and unqualified terms and the source of the Commission’s power to arbitrate the dispute underpinning question 2 is clause 11(c) of Part One of the Agreement, which permits any dispute in relation to any industrial matter to be dealt with under the procedure. The Deputy President’s finding that shift swapping was more difficult and complex under the graduated roster was plainly a product of evaluative judgment as was her conclusion that the graduated roster results in a low impact on those involved in shift swapping because they can continue to do so. Both conclusions can be correct, and they are not necessarily inconsistent. In substance, the Appellants’ complaint about the “dispositive” reasons for rejecting their case about the answer to question 2 is a complaint that the Deputy President made some error in exercising the discretion - taking into account irrelevant or extraneous considerations and failing to take into account other relevant considerations; and that she mistook the facts. The question posed required the Deputy President to assess whether, as a matter of industrial merit, the Respondent should be restrained from implementing the graduated roster. That assessment plainly tolerated a range of outcomes, as did the assessment of the impact on shift swapping of the graduated roster.
Decision under appeal
The Deputy President commenced by outlining that the current roster structure for the more than 1000 tram drivers employed by the Respondent has been in place since the 1980s and has comprised morning and afternoon shifts alternating on a weekly basis. Having observed that rostering is complex and time consuming because it must align with a Government-approved tram schedule and Master timetable, the Deputy President noted there had been a consultation process regarding the proposal to change to a graduated roster structure and following formal approval of a new Master timetable, the new graduated roster structure was developed.
The Deputy President noted the Respondent’s rationale for the change was to better manage the health and safety risk of driver fatigue and that it had assessed the graduated roster structure as superior to the alternating roster on the basis that it optimises fatigue management and avoids rotating from late shifts to early shifts and back, with little time to rest in between. The Deputy President observed that over a 20-week roster cycle, a tram driver would gradually commence work later each week, with the average starting time of each position progressing each week over the cycle. The tram driver would start from early position and then move through the day, middle and late positions and at the end of the 20-week cycle there would be a week of programmed days off before moving into the next 20-week cycle. The Deputy President also observed that the graduating roster structure introduced by the Respondent would allow for forward rotation in more cases than the alternating roster structure and a greater number of consecutive days off to recover from blocks of shifts. In relation to breaks between shifts, the Deputy President noted the graduating roster structure would enable an 11-hour break between shifts which was unachievable under the alternating roster, which only allows for a 10-hour break between shifts.
The Deputy President observed that neither form of shift structure accurately reflected actual work patterns because it was common practice amongst full-time tram drivers to swap shifts. The Deputy President noted that a paper-based system facilitated shift-swaps under the alternating roster structure, while a ‘self service platform’ had been introduced with the graduated roster structure, whereby a driver could post a broadcast ‘notice’ requesting a swap. Noting that shift swapping was and remains subject to rostering rules and management approval, which was generally forthcoming, the Deputy President found that while the evidence regarding the extent of shift swapping was not uniform, many of the shift swapping arrangements were permanent for the particular drivers concerned and driven by individual preferences for particular patterns of work. The Deputy President also concluded there had been “a relatively unremarkable reduction” in the number of shifts swapped under the new graduated roster structure. A summary of evidence about the impact of the implementation of the graduated roster on eight tram drivers and their families was outlined, including the Deputy President’s observation that only three drivers testified as to their experience swapping shifts under the new arrangements. Reference was also made to the survey of Rail Tram and Bus Union (RTBU) members conducted in July 2022, which had put the question “based on the information you have so far, do you support your roster changing to a graduated roster?” and generated 337 responses, of which 279 responses were in the negative, 21 were positive and 38 disclosed no answer. Having reproduced relevant provisions of the Agreement, the Deputy President proceeded to deal with the two questions in turn.
The Deputy President summarised the submissions of the parties in relation to the first question and rejected the interpretation of clause 19.2 of Appendix One advanced by the Appellants. The Deputy President answered “no” to the first question, reasoning that:
Read as a whole, clause 19.2 is directed at imposing obligations on employees rather than conferring rights or entitlements upon them (or imposing corresponding obligations on the Respondent);
The first sentence of clause 19.2 imposes an obligation on employees to work such shifts as they are allocated; the second sentence provides further details, obliging them to work morning and afternoon shifts on alternate weeks, as far as practicable, and to equally share broken shifts;
Clause 19.2 is directed at how shifts are worked, and not to how rosters are structured and in the context where shift swapping commonly occurs, the shifts that are worked and the roster structure are not the same;
Whilst clause 19.2 and clause 8.18 of Part Two are to be read together and clause 19.2 contains terms and conditions of employment for employees, they do not establish an entitlement for the tram drivers. Rather, the tram drivers’ terms and conditions include an obligation to work shifts allotted to them, and as far as practicable work morning and afternoon shifts on alternate weeks, and equally share the broken shifts;
Clause 19.2 assumes that an alternating roster is in place, but it imposes no obligation on the Respondent to maintain such a roster system;
Clause 19.2 does not deal with rostering at all. Rather it deals with how tram drivers work;
Clause 8.18 is directed at a commitment by tram drivers to flexible rostering and their agreement that no other rostering restrictions nor restrictive work practices will apply. The reference to restrictions does not extend to clause 19.2 but rather, the other provisions in clause 8, which impose various restrictions on the rosters that the Respondent can put in place, such as the restriction in clause 8.1(a) of Part Two that a rostered shift can provide for work periods of up to 8 hours 15 minutes per day;
The reference to ‘initiatives’ in the second sentence of clause 8.18, when read in its context, i.e., following immediately after a commitment by tram drivers to flexible rostering, is a statement confirming that the Respondent will roster tram drivers in accordance with its obligations in the Agreement, noting that clause 19.2 does not impose any such obligations;
Clause 8.1(b) of Part One of the Agreement permits the Respondent to propose changes to the regular roster, including the change to the graduated roster and the mere fact that the alternating roster is a longstanding practice is not a basis to conclude that it cannot be changed. Whilst clause 19.2 may assume an alternating roster is in place, the Agreement does not confer an entitlement to such a roster structure;
Clause 19.2 is left with more limited work to do under a graduated roster than the alternating roster structure. The first sentence of clause 19.2 was not impacted and there remained the obligation for an employee to work allocated shifts . Although clause 19.2 does not require the Respondent to maintain an alternating roster, it also does not preclude them from doing so;
Where an alternating roster is in place, the second sentence of clause 19.2 operates and in that sense, has work to do. The obligation thereunder to work morning and afternoon shifts on alternate weeks is qualified by the words ’as far as practicable,’ which would alleviate the obligation to work where the graduated roster structure does not require it, especially where it is changed to better manage fatigue.
As to question 2, the Deputy President outlined the Appellants’ contention that if the Commission does not find that the Agreement requires work under an alternating roster, it has a discretion to settle the dispute because it relates to an ‘industrial matter’. The Deputy President noted that while the Appellants contended the dispute is whether the Respondent is entitled to replace the alternating shift structure referred to in clause 19.2 with a graduated shift structure, the Respondent contended that the dispute is about shift-swapping and the Commission should not interfere with its management of shift allocations and rostering unless they could be shown to be unjust and unreasonable. The Deputy President determined it was clear that a dispute existed between the Appellant tram drivers and the Respondent over the implementation of the graduated roster and further, that it involved a significant change to long-established systems of work in which the employees had a legitimate interest. As such, the Deputy President was satisfied the dispute related to an industrial matter.
The Deputy President characterised the Appellants’ submissions as being largely premised on the contention, which she had not accepted, that implementing the graduated roster contravenes clause 19.2 of the Agreement and that the Respondent should be held to the bargain they struck with the tram drivers. The Deputy President found the bargain under the terms of the Agreement was that subject to consultation, the Respondent was entitled to introduce the graduated roster and there was therefore no need to bargain specifically for the proposed change. The Deputy President then turned to the merits of the matter and whether the Respondent should nonetheless be enjoined from implementing the graduated roster.
The Deputy President found driver fatigue is clearly a risk and the introduction of a graduated roster structure that experts and regulators advise is better, was a reasonably practicable step for the Respondent to take to manage this risk. The Deputy President considered the question whether the graduated roster structure addresses the risk of driver fatigue better than the longstanding alternating structure was highly relevant to the merits of the change. The Deputy President concluded that the graduated roster is a superior structure to manage driver fatigue to the alternating roster but also noted that due to the prevalence of shift swapping, the rostered shifts bear little resemblance to the actual shifts worked by many drivers. While the Deputy President considered the Appellants’ submissions that the hypothetical benefits of the graduated roster may not be realised because shift swapping is more complex and difficult under the graduated roster, and that introducing a graduated roster that impairs shift swapping could make fatigue worse, she also made the observations that not all drivers swap shifts, the drivers that did could continue to do so and that the Appellants’ evidence was limited to eight tram drivers out of more than one thousand. The Deputy President noted the evidence about the concerns that the graduated roster structure would impair the utilisation of shift swapping to manage fatigue and achieve a good work/life balance but was not persuaded it is so much more difficult that tram drivers will be unable to swap shifts under the new graduated roster or that permanent shift swapping is not possible, even though it was more complex.
While the Appellants contended that the Commission should settle the dispute by making an order enjoining the Respondent from implementing the graduated roster on the basis that the graduated roster fails on the fatigue management criterion, the Deputy President was satisfied the introduction of the graduated roster structure provides substantial improvements in managing the risk of tram driver fatigue for those employees who work the graduated roster, and for those who engage in substantial shift-swapping, the Deputy President concluded it would result in a low impact because they can continue do so. The Deputy President concluded the answer to question 2 was ‘no’ because she was satisfied, as a matter of industrial merit, that the Respondent should not be prevented from implementing the graduated roster.
The appeal grounds
Six grounds of appeal are advanced by the Appellants in their Notice of Appeal. These contend that the Deputy President:
misconstrued the Agreement and so erroneously denied the Appellants relief by failing to correctly answer question 1 of the agreed questions for arbitration to conclude that implementation of graduated rosters by the Respondent would breach clause 19.2 of Appendix One of the Agreement;
misdirected herself, and so erroneously denied the Appellants relief, by concluding that clause 19.2 of Appendix One of the Agreement is directed at imposing obligations on employees rather than conferring rights upon them or imposing corresponding obligations on the Respondent;
misdirected herself, and so erroneously denied the Appellants relief, by concluding that the words “Employees will be rostered in accordance with the initiatives outlined in this Agreement” in the second sentence of clause 8.18 of Part Two of the Agreement did not oblige the Respondent to roster employees on shifts to work morning and afternoon shifts on alternate weeks in accordance with clause 19.2 of Appendix One;
misconstrued the Agreement, and so erroneously denied the Appellants relief, by concluding that clause 19.2 of Appendix One of the Agreement deals with how shifts are to be worked, and not how rosters are structured;
misdirected herself, and so erroneously denied the Appellants relief, by concluding that clause 19.2 of Appendix One of the Agreement established no more than an assumption of an alternating roster that the Respondent was not obliged to apply when rostering work and shifts;
erred, and thereby erroneously denied the Appellants relief, by concluding that for employees who engage in shift swapping between themselves, the implementation of the graduated roster had a low impact in circumstances where:
oshe found that shift swapping was more difficult and complex under the graduated roster; and
othe dominant mode of shift allocation was by employees engaging in shift swapping, which would continue under the graduated roster.
Consideration
Grounds 1 – 5
It is convenient to deal with grounds 1 to 5 of the notice of appeal together. Ground 1 is described by the Appellants as addressing the Deputy President’s “dispositive” conclusion in [57] of the Decision. And that conclusion serves as, in effect, the Commission’s dispositive order in respect of the first aspect of the dispute. In truth Ground 1 is, as the Respondent correctly notes, a compendium of the constructional arguments advanced under Grounds 2 to 5. Grounds 2 to 5 set out the substance of the constructional arguments, which are said to disclose error in that conclusion agitated by Ground 1 and why the proper construction of the Agreement, the opposite answer to the one given by the Deputy President is correct.
The relevant provisions of the Agreement which inform the constructional exercise required by Question 1 are set out in Appendix A to the Decision and need not be reproduced. The Appellants’ constructional arguments may be summarised as follows:
Appendix One of the Agreement contains further terms and conditions of employment applying, inter alia, to tram drivers as clause 1.2 of Part Two makes clear. Appendix One and Part Two are to be read together;
Clause 2.3 of Part One of the Agreement provides that when reading the various Parts and Appendices subject to clause 2.5, to the extent of any inconsistency:
othe provisions of Part Two and Part Three prevail over the provisions of Part One; and
othe provisions of a Part prevail over the provisions of an Appendix;
Clause 8 of Part Two of the Agreement is concerned with tram driver rostering and relevantly provides:
othat the practice by which employees may alter their rostered duty is in accordance with local depot arrangements (clause 8.14); and
othat employees will be rostered in accordance with “the initiatives outlined in [the] Agreement”;
These provisions make clear that the Agreement is to be read as a whole, in context (consistent with principle) and with a view to construing its provisions as giving effect to harmonious goals;
Clause 11.6 of Appendix One provides that subject to approval of and in the manner directed by the Depot Manager, employees may exchange shifts and days off;
Clause 19.1 of Appendix One is headed “Hours of Duty” and by clause 19.1 fixes ordinary hours and how those hours shall be worked;
Clause 19.2 is comprised of two sentences providing for two terms. The first sentence imposes an obligation on employees to work the shifts that are allotted. The second sentence deals with two matters. Relevantly, that as “far as practicable” tram drivers shall work morning and afternoon shifts on alternate weeks;
The last sentence of clause 8.18 of Part Two is logically read with clause 19 of Appendix One. It is the Respondent that schedules work through its roster. The roster allocates “shifts.” Clause 8.18 says how this must be done - mandatory language is deployed – “Employees will be rostered in accordance with the initiatives outlined in the Agreement;
“Initiatives” include clause 19.2 of Appendix One;
A roster which relevantly “accords” (as required by clause 8.18) is one that schedules work in a way that aligns with the other terms and conditions of employment referred to in clause 19 of Appendix One. One implicitly facilitates the other, subject to the Agreement;
The words “[a]s far as practicable” in clause 19.2 qualify performance of the alternate roster, but only to the extent stated - a permanent, global change that replaces this shift pattern embodied in the alternate roster does not engage with the qualification;
Consequently, when the Respondent introduced the graduated roster, it made it impossible for tram drivers to comply with clause 19.2 because the Respondent ceased to roster shifts in that way. Expressed in terms of clause 8.18 of Part Two, the Respondent stopped rostering shifts that accorded with the initiatives outlined in the Agreement;
Part Two of the Agreement allows a tram driver to change allocated rostered shifts by recourse to the shift practice recognised by clause 8.14. The practice consists of an approval given by the Depot Manager under clause 11.6 of Appendix One for employees to exchange shifts and days off. The practice is “shift swapping”;
The premise of clauses 8.14 of Part Two and 11.6 of Appendix One is that an employee has allocated shifts to exchange. It follows the Respondent’s published roster serves as the structured base, or default, for shift swapping. It structures the swap;
Clause 8.14 of Part Two read with clause 2.3(b) of Part One adjusts the otherwise mandatory operation of clause 19.2 to ensure these clauses may be read harmoniously and without conflict. This gives all of them work to do and accords with the uncontroversial evidence of actual work practice;
the Deputy President’s finding that clause 19.2 imposes obligations on employees, but not upon the Respondent, reads clause 19.2 too narrowly and in isolation because:
oFirst, the employee obligation is to, as far as it is practicable, work the alternating structure. But the Respondent is free to roster without regard to how employees must work their allotted shifts and so the Respondent’s obligations under clause 19.2 is to structure drivers work according to the alternating structure so that “as far as practicable” employees can work it, subject to the Agreement;
oSecond, as clause 19.2 is a term (engaging thereby section 50 of the FW Act), the Respondent was obliged to roster drivers’ ordinary hours of work to accord with the shift pattern employees were obliged to work to the extent stated, subject to the Agreement;
oThird, and without concession, if clause 19.2 only imposes an obligation on drivers the Respondent was obliged by the Agreement to do all that is necessary to enable drivers to comply with this obligation;
It is contrary to industrial reality and purpose to construe clause 19.2 as only dealing with the working of shifts, and not roster structures as the Deputy President concluded. There would be no need for the last sentence of clause 8.18 of Part Two if that were so. Rosters come first (clause 22.1 of Appendix One). A change to the roster requires advanced notice (clause 8.3 of Part Two). A roster consists of the shifts an employee is to work according to the pattern the roster promulgates;
The finding that clause 19.2 assumes that an alternating roster is in place but does not oblige the Respondent to maintain it, reads down clause 19.2 and is at odds with its status as a term, even if viewed as directed only at employees.
The proper construction and effect of several provisions of the Agreement is in dispute. The applicable principles in construing an enterprise agreement are not in dispute and may be briefly stated. The task of construing an industrial instrument begins with a consideration of the ordinary meaning of the words, read in context, and taking into account the evident purpose of the provisions or expressions being construed. Relevant context will include other provisions of the industrial instrument, read as a whole, and the disputed provision’s place and arrangement in the instrument. The statutory framework under which the industrial instrument is made, or in which it operates may also provide relevant context, as might an antecedent instrument or instruments from which a particular provision has been derived. Regard may be had to relevant context and surrounding circumstances to determine whether there is any ambiguity in a provision of an industrial instrument. The language of an industrial instrument is to be understood in the light of its industrial context and purpose, not in a vacuum or divorced from industrial realities. But context is not itself an end, and a consideration of the language contained in the text of the relevant parts of the instrument remains the starting point and the end point in the task of construction. A purposive approach to interpretation is appropriate, not a narrow or pedantic approach.[11]
Clause 2.3 of Part One of the Agreement establishes hierarchical rules in respect of provisions in the various parts and appendices that form the Agreement - to the extent of any inconsistency the provisions of Part Two and Part Three prevail over the provisions of Part One and the provisions of a Part prevail over the provisions of an Appendix.
Clause 8 of Part One deals with consultation and requires consultation, inter alia, when the Respondent proposes to introduce a change to the regular roster or ordinary hours of work of employees.
Part Two of the Agreement applies, inter alia, to tram drivers (clause 1.1).
Clause 8 of Part Two outlines an extensive range of provisions governing the rostering arrangements for tram drivers, including:
Clause 8.1 - rostered shift lengths and certain payment requirements;
Clause 8.3 - notice arrangements for roster changes;
Clause 8.8 - spare shift arrangements and adherence to the “Rostering Guidelines”;
Clause 8.10- the manner in which a late broken shift may be rostered;
Clause 8.13 - allowing the Respondent to roster or require any shift or line to perform any 5 days’ work of the seven day week without restriction, regardless of the weekday work rostered or times of duty rostered, provided a 10 hour break is permitted between shifts and morning weekday shifts will not be rostered on Sunday afternoon shift; and
Clause 8.14 – setting out that the practice by which employees may alter their rostered duty is to be in accordance with the local arrangements at each depot.
Clause 8.18 - confirming tram drivers’ “commitment to flexible Rostering and no other rostering restrictions, nor will restrictive work practices apply”. Tram drivers “will be rostered in accordance with the initiatives outlined in this Agreement”.
Appendix One of the Agreement also applies to tram drivers (clause 1.2 of Part Two and “Application of Appendix” in Appendix One). The Appendix provides for additional terms and conditions of employment (clause 1.2 of Part Two) and contains provisions, inter alia, for:
Broken shifts payments (clause 7);
Shift allowances (clause 8);
Payments for weekend work (clause 9) and overtime (clause 10);
Clause 11 of Appendix One deals with working on a rostered day off, notice of alterations to rostered duty and exchanges between employees of shifts and days off. Relevantly, subject to the approval of, and in the manner directed by the Depot Manager, tram drivers may exchange shifts and days off.
Clause 19 of Appendix One deals with hours of work and provides:
19. Hours of duty
19.1 Thirty-eight hours divided into not more than five shifts shall constitute the weekly hours of duty to be paid at ordinary time. Daily ordinary hours of duty shall not exceed 8 hours 15 minutes on any day excluding Sundays and all days which are paid at double rate.
19.2 An employee shall work such shifts as may be allotted to him/her. As far as practicable traffic employees shall work morning and afternoon shifts on alternate weeks, and shall equally share the broken shifts.
19.3 Except to meet emergencies, special traffic, or on the day following a holiday, no traffic employee shall be called upon to begin a new shift without having been off duty for 10 consecutive hours.
Clause 22 of Appendix One deals with the arrangement of rosters and the posting or notice requirements when “[s]ubstantial alterations to existing rosters” are made.
Clause 19.1 of Appendix One sets out the weekly ordinary hours of work (38) and their arrangement into no more than five shifts with a ceiling on the number of ordinary hours that may be worked in a day (not more than 8 hours 15 minutes). The arrangement of shifts required by clause 19.1 involves rostering. Relevantly, rostering of full-time tram drivers is determined by clause 8 of Part Two. Clause 8.1(a) reinforces the restriction on daily ordinary hours found in clause 19.1 by specifying that “[s]hifts may be rostered to provide for work periods of up to 8 hours 15 minutes per day”. It allows for weekly hours of work to be rostered of up to 41 hours and 15 minutes, but as clause 8.1(b) makes clear, hours in excess of 40 in a week attract double time payments, and the hours between 38 and 40 are overtime payable in accordance with Part One.
Shifts in a roster will be allocated to tram drivers and the roster will be posted. Once shifts are allocated, clause 19.2 of Appendix One makes clear that the tram driver shall work the allocated shifts. But the mandate to work allocated shifts is tempered by the capacity under clause 8.14 of Part Two for a tram driver to alter rostered duty in accordance with the local arrangements at each depot and the capacity under clause 11.6 of Appendix One to exchange shifts with other drivers, subject to the approval of, and in the manner directed by the Depot Manager.
The second sentence of clause 19.2 contemplates the existence of a particular roster pattern of shift allocation (the alternate roster), because absent such a pattern the requirement that as far as practicable, tram drivers shall work morning and afternoon shifts on alternate weeks is otiose. This is hardly surprising since the alternate roster has been in place since the 1980s.
The principal obligation to work is set out in the first sentence of clause 19.2 - such shifts as may be allotted. The second sentence sets out how that obligation is discharged by reference to an existing rostered shift pattern - morning and afternoon shifts on alternate weeks. The words of qualification “[a]s far as practicable” recognise that factors may arise which will mean a particular driver might not work morning and afternoon shifts on alternate weeks – for example because of rostered shift swaps under clause 11.6 of Appendix One; or altering rostered duty in accordance with the local arrangements at a depot under clause 8.14 of Part Two; or ‘substantial alterations to existing rosters’ as contemplated by clause 22 of the Appendix. Thus, the content of a driver’s obligation under the second sentence is not stringent or absolute and depends on these exigencies (and doubtless others) and the roster the Respondent implements at any given time.
To this extent we do not agree with the Deputy President that clause 19.2 deals with how ‘shifts’ are to be worked, and not how rosters are structured (at [51] of the Decision). By necessity the second sentence can only sensibly be understood as proceeding on a basis that an existing roster setting out a shift pattern the drivers are, as far as practical, required to work is in place. To that extent it deals with how a roster is structured. But it does not follow that such a roster is locked in for the operational life of the Agreement. The provision does not operate as a restriction on rostering, rather it merely recognises the operation of an existing rostering pattern. It does not fix the alternate roster as the only roster. It does not provide nor does it have the effect that employees may only be required to work the alternate roster. The principal obligation remains – that tram drivers work such shifts as may be allotted. Shifts are allocated in accordance with the roster arrangements the Respondent puts in place in compliance with clause 8 of Part Two while ensuring that notice is given as required by clause 22.2 of the Appendix and requisite consultation pursuant to clause 8 of Part One is undertaken.
Clause 19.2 does not operate in a vacuum. Clause 19.1 requires that ordinary working hours be organised or arranged into shifts of not more than five per week comprised of not more than 8 hours 15 minutes each. The arrangement is contained in a roster regulated by clause 8 of Part Two. The roster when posted is how shifts are allocated, which in turn engages with the principal obligation to work allocated shifts found in clause 19.2.
Clause 8.18 of Part Two, titled “Flexible Rostering”, confirms a commitment by tram drivers to flexible rostering and that no other rostering restrictions nor restrictive work practices will apply. Here we also disagree with the Deputy President’s view that “no other rostering restrictions” is confined to other provisions in clause 8, which impose various restrictions on the rosters – in other words only the restrictions in clause 8 will operate (at [54] of the Decision). We consider the reference is to any rostering restrictions contained in the Agreement, for example, clause 22.2 of Appendix One dealing with posting of substantial roster alteration, is properly a restriction as is the requirement in 11.1 that drivers have two rostered days off in each rostered week, as is the arrangement of ordinary hours in clause 19.1. The commitment is to flexible rostering by not imposing rostering restrictions not imposed by the Agreement. But this disagreement is of no moment since we do not consider clause 19.2 is a rostering restriction. Once that is clear the principal obligation to work allocated shifts sits comfortably with the drivers’ commitment to flexible rostering.
The corresponding obligation imposed on the Respondent because of the drivers’ commitment to flexible rostering without restrictions that are not imposed by the Agreement, is to roster drivers in accordance with the ‘initiatives’ in the Agreement found in the second sentence of clause 8.18 of Part Two.
In this context, we consider “initiatives” means “measures” in the Agreement pertaining to rostering. The word “initiative” read in context is not to be construed so broadly as to encompass every term of the Agreement, including clause 19.2. The first sentence of clause 8.18 deals specifically with rostering flexibility and preserves the commitment to rostering flexibility in clear terms. The flexible rostering commitment unencumbered by additional restrictions cannot be unwound or rendered inutile by relying on the general “initiatives” by giving it a broader meaning than the context permits.
But clause 19.2 of the Appendix contains no initiatives or measures pertaining to rostering. It compels tram drivers to work shifts that are allocated and recognises that a particular roster pattern is in operation in setting out the obligation in the second sentence, but it does not thereby compel the Respondent to maintain that roster pattern. Such an outcome is not expressed in clause 19.2 and would be inconsistent with clause 8.1(b) read with clause 8.13 of Part Two which together provide that:
·Shifts may be rostered to provide for work periods of up to 8 hours 15 minutes per day, and up to 41 hours and 15 minutes of work for the week (clause 8.1(b)); and
·The Respondent may roster or require any shift or line to perform any 5 days’ work of the seven-day week without restriction. This will occur regardless of the weekday work rostered or times of duty rostered provided a 10-hour break is permitted between shifts and morning weekday shifts will not be rostered on Sunday afternoon shift (clause 8.13).
In which event the provisions in Part Two prevail over the inconsistent provisions in the Appendix (clause 2.3(b) of Part One).
For the reasons explained above there is nothing in the Agreement which compels the Respondent to only roster tram drivers and allocate shifts according to the alternate roster. Nor is there anything which sounds to be an entitlement of tram drivers to only be so rostered. Such an “entitlement” would denude the first sentence of clause 19.2 of the Appendix of any practical meaning or effect because all that needs to be said is said in the second sentence. Moreover, such a reading would render meaningless the commitment to flexible rostering – a fixed pattern embedded in the alternate roster, incapable of alteration is antithetical to flexible rostering.
Contrary to the Appellants’ contention, clause 19.2 cannot be read in a way that gives effect to mutual obligations – to work a particular pattern of shifts and roster accordingly. Employee performance of the second sentence obligation is plainly conditional on the existence of the alternate roster. For so long as it was in operation both the first and second sentence required tram drivers to work the shifts allocated to them under the roster. But when the alternate roster is replaced by the graduated roster, the second sentence compels nothing since it is not practical to work a pattern of shifts the roster does not allocate. The only relevant operative obligation is in the first sentence – to work allocated shifts. It is, as the Respondent’s correctly point out, open to those making an enterprise agreement to indicate through the use of terms such as “practicability”, that the stringency of an obligation will depend upon the circumstances in which it is imposed. Here, the introduction of the graduated roster essentially relieved the tram drivers from the secondary obligation in clause 19.2 to work shifts according to the alternate roster.
Put another way, a tram driver’s compliance with clause 19.2 of Appendix One does not simply depend on the Respondent providing and scheduling work in the manner the second sentence of the clause describes. The content of an employee’s obligation - its stringency - depends on the roster the Respondent implements at any given time. If the roster is different to the pattern of shifts in the second sentence, the content of the obligation is dictated only by the first sentence subject to the drivers’ capacity to exchange shifts and alter rostered duty as earlier described.
The fact that the second sentence of clause 19.2 is a term of the Agreement imposing obligations on tram drivers, breach of which may give rise to civil penalty exposure, does not warrant the reading for which the Appellants contend. For the reasons we have earlier explained, the stringency of the obligation clause 19.2 imposes depends on the roster the Respondent has implemented which in turn allocates the shifts required to be worked. The implementation of the graduated roster by the Respondent renders compliance with the second sentence not practicable. Tram drivers must work the shifts allocated under the graduated roster as the first sentence of clause 19.2 requires.
It follows from the forgoing that implementation of the graduated roster would not breach clause 19.2 of Appendix One of the Agreement. The Deputy President was correct in her answer to question one. Appeal grounds 1 to 5 fail.
Given the terms of s.29(2)(b) of the FW Act, which provide that the terms of an enterprise agreement apply subject to (relevantly) occupational health and safety laws of a State, during the appeal hearing we asked the parties if a reasonably practical step to ensure that the working arrangements or system of work is safe is to implement a roster change to manage fatigue, ought the Agreement be read in a way that does not operate to prohibit the implementation of the reasonably practical step?[12] The parties were invited to address this question with short written submissions, which they have done – albeit with an understanding different to ours of the meaning of ‘short’.
Given our conclusion as to the proper construction of the terms of the Agreement in issue set out above it is now not necessary to deal with that question.
Ground 6
By ground 6 of the notice of appeal the Appellants contend the Deputy President erred, and erroneously denied them relief, by concluding that for employees who engage in shift swapping, the implementation of the graduated roster had a low impact in circumstances where: the Deputy President found that shift swapping was more difficult and complex under the graduated roster; and the dominant mode of shift allocation was by employees engaging in shift swapping, which would continue under the graduated roster.
The Appellants do not cavil with the Deputy President’s observation that if the dispute was confined to a consideration of the fatigue management merits of the two rostering structures, the graduated structure would be superior. However, they suggest the prevalence of shift swapping denies this conclusion determinative force because answering question 2 required the Deputy President to give an opinion that resolved ‘the real disagreement’. The Appellants contend that ‘the real disagreement’ is whether shift swapping under the graduated roster is more difficult and complex. They contend that the resolution of ‘the real disagreement’ is brought about by the Deputy President’s acceptance that shift swapping under the graduated roster is more difficult and complex and requires a finding that the alternating roster is superior.
In this regard, the Appellants submit the evidence revealed that under the graduated roster structure, a driver with a preference for a particular shift pattern would need to repeatedly find multiple drivers with whom they could swap shifts in order to maintain that pattern, whereas under the alternating roster, they could enter into ‘standing swap’ arrangements with one driver whereby each driver’s entire week of shifts would be directly swapped. The Appellants note that the Deputy President made findings that the graduated roster structure made swapping more difficult and complex, but not so much more difficult that drivers would be unable to swap shifts and further, that permanent shift swapping would not be rendered impossible under the graduated roster structure. The Appellants submit these conclusions (and the focus on those who did not shift swap) were a diversion from the real issue posed for resolution and are appealable errors of law because they posed the wrong question or issue and were extraneous to the resolution of the real disagreement.
The Appellants argue the Deputy President purported to settle the dispute on an incorrect basis because the disagreement which was the subject of dispute did not turn on whether it was merely possible for employees to shift swap under the graduated roster. The Appellants submit that the Deputy President’s reasoning error, together with her finding that shift swapping was more difficult and complex under the graduated roster, demonstrates that the disposition was incorrect. They argue there was not a “low impact” on shift swapping simply because it could still be done under the graduated roster, and this is sufficient to demonstrate that the correct answer to Question 2 is “yes.”
In substance the Appellant’s complain that the Deputy President disposed of question 2 solely by reference to extraneous or irrelevant considerations. We do not accept the Appellants’ contentions.
Under the Agreement’s dispute settlement term, the Commission was authorised to arbitrate the disputed question whether it should make an order enjoining the Respondent from implementing the graduated rosters. Clause 11.1(c) of Part One of the Agreement extends to disputes in relation to an industrial matter. Answering question 2 requires the formation of an informed value-judgment or, as the Appellants described below, whether as a matter of industrial merit the order should be made. Before the Deputy President, the Appellants’ contended that the dispute would be resolved by answering the two questions posed (at [3] of the Decision). Question 2 is broadly expressed, consistent with an examination of the industrial merit of the order sought. It was not confined to seeking an order if the Deputy President was satisfied that shift swapping under the graduated roster was more difficult and complex with the consequence that the alternating roster was superior.
In reading the Decision as a whole, it is plain the Deputy President took into account a range of matters. At [66]-[67], the Deputy President noted that graduated rosters aim to reduce driver fatigue, that driver fatigue is clearly a risk to driver health and safety and the Respondent’s duty to take all reasonably practicable steps to eliminate or minimise risks to driver health and safety. The last two matters are plainly correct, and the aim of the graduated roster is not controversial. The Deputy President found the “safety assessment concluded that while the graduated roster was not a panacea for all fatigue issues, it provided considerable benefits for those who work it, and for those who engage in shift-swapping, [and] results in a low impact because they can continue to do so”. This conclusion was open on the evidence. The Deputy President observed the question whether the graduated roster addresses the risk of driver fatigue better than the longstanding structure is highly relevant to the merits of the change.
At [68] of the Decision the Deputy President noted that if the merits were confined to whether the graduated roster is a superior structure to the alternating roster in manage driver fatigue, the answer is clearly yes and unequivocally so.
At [69] the Deputy President observed that because of the prevalence of shift swapping, the rostered shifts bear little resemblance to the actual shifts worked by many drivers and noted the Appellants’ contentions that introducing a graduated roster that impairs shift swapping, may not have the anticipated benefits of this roster arrangement realised and in fact, may make fatigue worse as a result. The Deputy Present rejected the underpinning of these contentions. At [75] the Deputy President accepted the Appellants’ evidence that shift swapping is more difficult and complex under the graduated roster, but not so much more difficult that drivers will be unable to swap shifts. Similarly, the Deputy President found that permanent shift swaps are clearly more complex than the system drivers were used to but not so as to render permanent shift swapping not possible under a graduated roster.
The Deputy President’s evaluation of the impact of the graduated roster on shift swapping was made having regard to the evidence including that:
The Respondent employs over 1,000 tram drivers;
The dispute appears to exist between the four Applicant tram drivers and the Respondent;
Not all tram drivers engage in swapping shifts;
The ‘best evidence’ before the Deputy President was that somewhere between 8% and 60% of drivers do not swap shifts;
The Appellants’ evidence was confined to eight individual tram drivers giving evidence about their own circumstances and indirectly, the views of others because of their representative capacity;
The graduated roster had only been in place for a few days;
Three of the eight tram drivers had successfully swapped shifts under the graduated roster;
The remaining five gave no evidence of unsuccessful attempts to swap shifts under the graduated roster; and
The evidence about the extent of shift swaps under the graduated roster structure suggested there had been a relatively unremarkable reduction in the number of shifts swapped following its introduction;
It is in this evidentiary context, the Deputy President concluded that the introduction of the graduated roster results in a low impact for those drivers engaged in substantial shift swapping because they can continue to do so. This was a conclusion plainly open. That shift swapping may be more complex does not mean that the added complexity results in a high negative impact. Ultimately, this was an evaluation the Deputy President had to make weighing the evidence about the prevalence of shift swapping and the limited evidence about impact.
The Deputy President also took into account that the Respondent has a duty to take all reasonably practicable steps to eliminate or minimise risks to health and safety (at [78] of the Decision) and that the introduction of the graduated roster structure provides substantial improvements in managing the risk of driver fatigue for those employees who work to the graduated roster (at [78] of the Decision). The Deputy President had earlier indicated this latter matter “was highly relevant to the merits of the change” (at [67] of the Decision) and we agree.
The findings made by the Deputy President about the various matters she took into account in assessing the industrial merits of the question posed where either plainly correct or open on the evidence. Each matter was relevant to the evaluative exercise the Deputy President was required to undertake. No error of the kind articulated in House v The King is disclosed. Ground 6 of the notice of appeal fails.
Permission to appeal
We agree with the Respondent that permission to appeal should be refused for several reasons. First, none of the Appellants’ constructional arguments show appealable error. Second, the question of the proper construction of the Agreement in the context of the dispute is not one of general importance and has no general application beyond the disputants. Third, the Appellants have not shown that substantial injustice would result if permission to appeal were refused. Fourth, the Appellants have not shown that the Decision is attended by sufficient doubt to warrant reconsideration. The constructional arguments do not disclose error, and the Appellants have not shown discretionary error in the Deputy President’s answer to question 2.
In any event, even if permission to appeal were granted, for the reasons we have set out, the appeal would be dismissed.
Orders
We order that permission to appeal is refused.
VICE PRESIDENT
Appearances:
M Harding SC and Y Bakri of counsel for the appellant.
C O’Grady QC and A Pollock of counsel for the respondent.
Hearing details:
2023.
Melbourne.
24 May.
[1] [2023] FWC 252
[2] AE508084
[3] See Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, 264 CLR 541 at [46]-[49] per Gageler J; Rail Commissioner v Rogers[2021] FWCFB 371 at [61]; Health Services Union v DPG Services Pty Ltd [2023] FWCFB 81 at [12]; Fonterra Brands (Australia) Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union [2015] FWCFB 3423 at [11]; AMA (Victoria) Ltd v Monash Health [2022] FWCFB 82 at [25]
[4] AMA (Victoria) Ltd v Monash Health [2022] FWCFB 82 at [25]
[5] [2023] FWC 252 at [75]
[6] Ibid at [78]
[7] Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [31] (per Gageler J)
[8] (1936) 55 CLR 499 at 504-505; [1936] HCA 40
[9] Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [49] (per Gageler J)
[10] Ibid
[11] Australian Workers’ Union v Orica Australia Pty Ltd[2022] FWCFB 90 at [18] and the authorities referred to therein; See also James Cook University v Ridd [2020] FCAFC 123, 298 IR 50 at [65] and the authorities referred to therein; Workpac Pty Ltd v Skene (2018) FCAFC 131, 264 FCR 536 at [197]
[12] Transcript 24 May 2023 at PN207-209.
Printed by authority of the Commonwealth Government Printer
<PR763989>
0
10
0