The Australian Workers' Union v EDL Group Operations Pty Ltd T/A Energy Developments Limited

[2013] FWC 6733

[2013] FWC 6733

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

Fair Work Act 2009
s.739—Dispute resolution

The Australian Workers’ Union
v
EDL Group Operations Pty Ltd T/A Energy Developments Limited
(C2013/4181)

COMMISSIONER CLOGHAN PERTH, 1 OCTOBER 2013

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

[1] This is an application by the Australian Workers’ Union seeking the resolution of a dispute regarding the action by EDL Group Operations Pty Ltd to change the roster for its West Kimberley power station operators from “8 (days) on, 6 (days) off” to “5 (days) on, 2 (days) off”.

[2] The Australian Workers’ Union contends that the roster can only be changed by agreement of the majority of the affected employees. The employer asserts that its preferred position is to change the roster by agreement of the majority of employees but where it is a reasonable request to change the roster arrangement, the employees must comply with the new arrangements.

PROCEDURAL BACKGROUND

[3] On 2 May 2013, the Australian Workers’ Union (Applicant or AWU) made application to the Fair Work Commission (Commission) to deal with a dispute in accordance with a dispute settlement procedure (DSP).

[4] The AWU is in dispute with EDL Group Operations Pty Ltd T/A Energy Development Limited (Employer).

[5] The application is made pursuant to s.739 of the Fair Work Act 2009 (FW Act) and the DSP is contained in the EDL Group Operations Pty Ltd - AWU Agreement 2011 (2011 Agreement).

[6] The dispute relates to whether the Employer can change the roster at the West Kimberley power stations without the agreement of the majority of the employees who work the roster.

[7] The application was the subject of a conference on 15 May 2013. Further discussions occurred, however, the AWU advised the Commission on 30 May 2013 that the matter remained unresolved and sought for the dispute to be resolved by arbitration.

[8] Procedural directions were issued on 20 June 2013. The procedural directions addressed the Employer’s jurisdictional objection that the matter could not proceed to arbitration without the parties’ agreement, or alternatively, arbitration was not necessary.

[9] At the hearing on 29 July 2013, the AWU was represented by Ms Emma Douglas, Solicitor. Evidence was given on behalf of the AWU by Messrs Les Wood and Gavin Wann who are employees of the Employer, and Mr Daniel Conners, Organiser, AWU.

[10] The Employer was represented by Ms Nadia Taylor of counsel. Evidence was given on behalf of the Employer by Ms Taylor and:

● Mr Shane McLaughlin, Executive General Manager;
● Mr Gavin Blakeman, Manager Operations and Maintenance, Remote Energy Operation; and
● Mr Hayden Smith, Human Resources Manager

[11] Having considered the evidence and submissions of the parties, this is my decision and reasons for decision.

PRELIMINARY JURISDICTIONAL OBJECTIONS

Can the AWU make application to the Commission

[12] The application has been made by the AWU. The first preliminary matter for determination is whether the AWU has standing to make the application and, if not, whether I should exercise the general powers of the Commission in paragraph 586(a) of the FW Act, to correct or amend the application.

[13] The 2011 Agreement relevantly provides at Part 4, Clause 29.0 Settlement of Disputes as follows:

“29.1 Dispute Settlement Procedure

29.1.1 Disputes pertaining to the relationship between the employer and employees, the employer and the union, deductions of union fees from wages, the operation of the Agreement, or relating to the National Employment Standards will be resolved according to this procedure.

29.1.2 In the first instances the parties will attempt to resolve the matter at the workplace by discussions between the employee or employees concerned and the relevant supervisor. If such discussions do not resolve the dispute, the dispute is to be referred to more senior levels of management as appropriate.

29.1.3 A party to the dispute may appoint another person, organisation or association to accompany or represent them in relation to the dispute.

29.1.4 If a dispute in relation to a matter arising under the agreement is unable to be resolved at the workplace, and all agreed steps for resolving it have been taken, the dispute may be referred to Fair Work Australia (the Tribunal) and/or other party for resolution by mediation and/or conciliation and, where the matter in dispute remains unresolved, arbitration. If arbitration is necessary the Tribunal may exercise such procedural powers in relation to hearings, witnesses, evidence and submissions that are necessary to make the arbitration effective.”

[14] The AWU submits that it has standing to make the application as a representative of the employees involved in the dispute.

[15] The Employer acknowledges that the AWU is a representative of the employees in dispute, however, asserts that the dispute is between the employees and the Employer. Accordingly, the Employer submits that the AWU has no standing pursuant to the DSP to make the application. Further, the Commission should not exercise its general powers under the FW Act to amend the application as there is a three (3) month trial roster in place and the Commission should wait until the trial is completed.

[16] The circumstances under which the DSP takes effect are disputes which relate to the relationship between the Employer/employee, Employer/AWU, deduction of union fees, operation of the 2011 Agreement or the National Employment Standards.

[17] The primary circumstances of this dispute, as set out in the application, is “the Respondent [Employer] has made employees aware that they intend to take all possible steps to significantly alter the roster and working arrangements set out in the Agreement”. The circumstances clearly relate to the relationship between the Employer and employees. The Employer’s action to change the roster may have secondary effect on its relationship with the AWU, but this is not the primary cause of the dispute. Accordingly, the “parties” to this dispute are the Employer and its employees.

[18] Subclause 29.1.2 of the 2011 Agreement requires the parties, in the first instance, to discuss the issue in dispute at the workplace in an endeavour to resolve the dispute. In the event the dispute remains unresolved, the matter is referred to more senior levels. Where the dispute still remains unresolved, the DSP provides for the matter to be referred to the Commission or another party.

[19] It is clear in subclause 29.1.4 of the 2011 Agreement that the condition for referring the matter to the Commission is that the dispute remains unresolved. However, subclause 29.1.4 is not explicit as to who can refer the matter to the Commission and therefore, I am unable to apply the “plain and ordinary” meaning to the relevant words in subclause 29.1.4.

[20] In the absence of words stating who can refer the dispute to the Commission in subclause 29.1.4, it is necessary to consider the surrounding provisions. In 29.1.2, it states, “in the first instance, the parties will attempt to resolve the matter at the workplace by discussions between the employee or employees concerned and the relevant supervisor” (my emphasis). From that text, I draw the conclusion that the “parties” to the dispute are the employee(s) and the Employer. If that was the only surrounding provision, it would appear, in the absence of the explicit provisions as to who can refer a matter to the Commission, it could only be an employee or the Employer. However, it is necessary to consider subclause 29.1.3.

[21] Subclause 29.1.3 of the 2011 Agreement provides that “a party to the dispute may appoint another person, organisation or association to accompany or represent them in relation to the dispute”. In this dispute, the affected employees are represented by the AWU.

[22] The Australian Concise Oxford Dictionary defines “represent” as “fill place of”, “be substitute” and “be entitled to act or speak for”.

[23] In the absence of specific words as to who can refer the dispute to the Commission, in my view, the default position has to be one of the “parties” to the dispute - which in this case is the Employer and employees.

[24] However, having considered the ability of employees to be represented by the AWU and the plain and ordinary meaning of “represent”, I am satisfied that the AWU, acting on behalf of the employees, has standing to make the application in accordance with subsection 739(6) of the FW Act.

[25] I now turn to the second preliminary matter, and that is whether the dispute can proceed to arbitration without the agreement of both parties, and further, arbitration is not necessary.

Arbitration requires the agreement of the parties

[26] The Employer submits that pursuant to subclause 29.1.4 of the 2011 Agreement, disputes “may” be referred to the Commission. The use of the word “may” according to the Employer requires the parties to agree for the dispute to be referred to the Commission.

[27] The Employer submits that in subclause 29.1.4 of the 2011 Agreement the word “may’ rather than ‘will’ denotes discretion. Therefore there is no direct impetus for either party to participate in arbitration within the terms of the Agreement” of both parties. 1 “The apparent intention of the parties in constructing the Agreement in this manner, having regard to the terms of the Agreement as a whole, was not to extend arbitration power to the Fair Work Commission unless it was agreed by both parties”.2 The Employer relies upon Woolworths Ltd trading as Produce and Recycling Distribution Centre [2010] FWAFB 1464 (Woolworths) in support of its submission in particular, upon paragraph [23] and the words “in the absence of agreement Fair Work Australia has no power to arbitrate”.

[28] In my view, the statements of the Full bench at paragraph [23] of Woolworths are not of assistance to the Employer. The Full Bench was concerned with the issue of whether arbitration was a mandatory component of a dispute settlement procedure in an enterprise agreement in accordance with paragraph 186(6)(a) of the FW Act. The decision did not address the issue being relied upon by the Employer.

[29] In subclause 29.1.4 of the 2011 Agreement, the Employer and the employees have expressly agreed that the “dispute may be referred to [the Commission] and/or other party for resolution by mediation/or conciliation and where the matter remains unresolved, arbitration”. The term continues by setting out the procedural powers which can be exercise to make the arbitration effective. In my view, there can be no argument that the parties to the 2011 Agreement agreed, subject to attempting to resolve the dispute at the workplace in the first instance, that the dispute could eventually be referred to the Commission for arbitration.

[30] Finally, with respect to the word “may”, I agree with the Employer’s submission that it is discretionary. However, I am of the view that the discretion lies with the party which seeks to have the dispute resolved by way of arbitration, rather than, as contemplated by the Employer, an option which comes into effect when both parties agree to arbitration.

[31] I am not persuaded to calibrate the term in 29.1.4 to the extent that the parties intended for arbitration to only occur with the agreement of both the Employer and the AWU. While it can be reasonably inferred that the term intended for the Employer, its employee’s or their representatives to make application to the Commission for arbitration - to submit that the substantial issue of arbitration by the Commission could only occur with the agreement of both parties to the dispute is, without the express words, something which I am not prepared to sanction.

[32] While arbitration by consent of both parties is a matter which can be agreed in an enterprise agreement, it is not a position supported by the text of subclause 29.1.4 of the 2011 Agreement.

[33] The interpretation put on the term by the Employer usurps the ordinary meaning of “may” when applying the discretionary action available to parties when making the application or referring a dispute to the Commission for arbitration.

[34] I find that it was not the intention of the parties to extend to the Commission the power to arbitrate “unless it was agreed by both parties” 3. I find that the parties gave power to the Commission to arbitrate at the discretion of a party to the dispute or their representative.

Arbitration is not necessary

[35] The Employer submits that the affected employees are no longer in dispute and arbitration is not necessary. Alternatively, the roster has been implemented on the basis of a three (3) month trial during which consultation with the affected employees will continue. In these circumstances, the Employer submits that arbitration is unnecessary.

[36] The AWU submits that although the affected employees have not refused to work in accordance with the trial roster, the original dispute remains, and its introduction was contrary to provisions of the 2011 Agreement. In short, the substantive cause of the dispute remains.

[37] I am satisfied, for the reasons set out by the AWU, that the substantive reasons for the dispute remain notwithstanding the introduction of the trial roster. I am satisfied that arbitration is necessary to resolve the dispute. I am also mindful, given the conflicting views of the parties, of the provisions of paragraph 576(2)(aa) of the FW Act of “promoting cooperative and productive workplace relations and preventing disputes”.

APPLICANT’S CASE

[38] The AWU submits that, pursuant to subclause 2.1.4 of Appendix A-7 of the 2011 Agreement, a variation of the roster for West Kimberley power station operators can only be effected following consultation and agreement between the Employer and majority of employees affected by the change.

[39] While the AWU concedes “there has been some discussion between employees and EDL, the AWU does not accept that the discussion satisfies the criteria for consultation”. Further, there has been no agreement by the majority of employees affected by the variation to the roster.

[40] The AWU submits that the provisions of subclause 2.1.4 of Appendix A-7 of the 2011 Agreement are clear and unambiguous.

[41] According to the AWU, the “industrial context and purpose of the hours of work provisions...is to balance reasonable certainty for employees in terms of the hours of work they will be rostered to perform and EDL having the ability to make variations to the roster to suit organisational requirements” 4 (my emphasis).

[42] The operators in the West Kimberley are the only employees in the 2011 Agreement who specifically have a precise roster set out and “there would be no point to have the parties agree on a precise roster to apply while the agreement remained in force, if that roster could be unilaterally replaced on a whim without further agreement” 5.

[43] The AWU submits that the provisions in subclause 2.1.6 of Appendix A-7 of the 2011 Agreement is a general provision and “cannot derogate from a specific provision where there is a conflict between those provisions”.

[44] If the Commission finds Clause 2.0 Hours of Work of Appendix A-7 of the 2011 Agreement ambiguous or capable of more than one meaning, the AWU submits “that evidence of the surrounding circumstances is admissible to assist in its interpretation” 6.

[45] The AWU submits that the surrounding evidence demonstrates that the mutual intention of the parties was that the Employer would not have the “absolute power to change the roster or implement a new roster”. Further, “the mutual intention of the parties when negotiating the 2011 Agreement was to balance employee certainty with operational flexibility in relation to rosters” 7.

[46] Overall, the AWU submits that if there is ambiguity the subclauses “ought to be interpreted to provide EDL can make reasonable requests of the West Kimberley operators in relation to arrangements within the agreed roster set out in 2.1.2.1 with which the operators must comply. Any variation beyond “reasonable requests” within the roster requires agreement of the majority of the operators” 8.

EMPLOYER’S CASE

[47] The Employer submits that the implementation of the “5 on, 2 off” roster on 3 July 2013 was permitted by the plain and ordinary meaning of subclause 2.1.6 of Appendix A-7 of the 2011 Agreement. The Employer rejects the AWU’s contention “that clauses 2.1.4 and 2.1.6 impose an unwritten demarcation between minor and significant roster changes” 9.

[48] The Employer acknowledges that while it prefers to implement roster changes by majority agreement in accordance to subclause 2.1.4 of Appendix A-7 of the 2011 Agreement, it is not the only mechanism to effect changes to the roster. On this occasion, the Employer has chosen to implement the roster changes by utilising the provisions of subclause 2.1.6 of Appendix A-7 of the 2011 Agreement.

[49] With respect to subclause 2.1.6 of Appendix A-7 of the 2011 Agreement, the Employer submits that it is unambiguous and the plain and ordinary meaning “requires the operators to comply with any reasonable request with regard to rostering arrangements, which may include a request to work a different arrangement to that set out in clause 2.1.2.1” 10.

[50] The Employer submits that with respect to subclause 2.1.6 of Appendix A-7 of the 2011 Agreement, “rostering arrangements cannot solely refer to minor changes within the fixed panel roster” 11. To confine the subclause as suggested by the AWU would be contrary to its plain and ordinary meaning.

[51] The Employer contends that the words “roster arrangements” in subclause 2.1.6 in Appendix A-7 of the 2011 Agreement extend to the “structure of the roster” and can be compared to s.139 of the FW Act in which “arrangements for when work is performed” includes “hours of work, rostering, notice periods, rest breaks and variations to working hours”. Accordingly, the Employer contends that, “a reasonable request with regard to roster arrangements does not preclude a request to work under new or different rostering conditions” 12.

[52] The Employer submits that its interpretation of subclause 2.1.6 of Appendix A-7 of the 2011 Agreement does not render subclause 2.1.4 meaningless or ineffectual. Subclause 2.1.4 enables a roster change “where a majority of employees agree to the change”. Whereas 2.1.6 is “broader in its application and permits changes that have been permitted by any “reasonable request” whether directed at an individual operator or a group of operators” 13.

[53] However, the Employer submits that, if it is necessary to have regard to extrinsic matters, the underlying intention in inserting subclause 2.1.6 of Appendix A-7 supports its interpretation. The intention is supported by the witness evidence of Ms Taylor and Mr Smith.

CONSIDERATION

[54] The 2011 Agreement replaced the EDL Group Operations Pty Ltd - AWU Agreement 2008 (2008 Agreement). The 2008 Agreement replaced both the EDL Group Operations Pty Ltd - AWU Agreement 2006 (2006 Agreement) and the EDL Group Operations Pty Ltd West Kimberley Operations Greenfields Agreement 2006 (West Kimberley 2006 Agreement). The predecessor of the 2006 Agreement and the West Kimberley 2006 Agreement was the EDL Group Operations Pty Ltd - AWU Agreement 2004 (2004 Agreement).

Relevant Enterprise Agreement Provisions

[55] 2004 Agreement

“18.3 Operators

18.3.1 The Normal Hours of work shall be in accordance with the roster and will include rostered weekends and scheduled overtime...

18.3.2 ...

18.3.3 Changes to the roster will be subject to consultation between the site management and employees and any variation will be by agreement between the Company and the majority of the employees affected by the change.

18.3.4 Operators shall comply with the Company’s reasonable requests with regard to roster arrangements. Operators shall be required On-call outside of normal working hours to respond to operational upsets and shutdowns at the Company’s operating facilities”. (my emphasis)

[56] 2006 Agreement

● Appendix B-1 Landfill Gas (LFG)
● Appendix B-2 Coal Mine Methane (CMM)
● Appendix B-3 Remote Schedule

[57] All appendices have the following identical subclauses in Clause 2: Hours of Work:

“2.1.5 Changes to the roster will be subject to consultation between the site management and employee and any variation will be by agreement between the Company and the majority of the employees affected by the change.

2.1.6 Operators shall comply with the Company’s reasonable requests with regard to roster arrangements. Operators shall be required On-call outside of normal working hours to respond to operational upsets and shutdowns at the Company’s operating facilities” (my emphasis)

[58] West Kimberley 2006 Agreement

[59] While the West Kimberley 2006 Agreement is a separate enterprise agreement to the 2006 Agreement, it contains the above identical provisions.

[60] 2008 Agreement

[61] The 2008 Agreement collapses the 2006 Agreement and the West Kimberley 2006 Agreement into one document. With respect to:

● Appendix A-1 Landfill Gas (LFG);
● Appendix A-2 Coal Mine Methane (CMM);
● Appendix A-3 Remote Schedule;

the provisions are identical to that contained in the 2006 Agreement outlined above. However, the provisions for the West Kimberley power station operators are different and contain the following subclauses at Appendix A-7:

“2.1.4 Changes to the roster will be subject to consultation between the site management and employee and any variation will be by agreement between the Company and the majority of the employees affected by the change.

2.1.5 The Company will allow personnel who have commitments in their home town, to negotiate with other members of their crew to swap time rostered away. This must be conducted in the following manner.

• The change must be by mutual agreement between operators, and;



• The person wanting to swap is responsible for finding a swap partner, and;



• The skill set must be maintained to ensure operations requirements are maintained, and;



• All changes need to be approved prior to the event by the Supervisor; and



• The person working the swapped roster is entitled to all allowances applicable to that roster being worked.

2.1.6 Operators shall comply with the Company’s reasonable requests with regard to roster arrangements...

2.1.7 A shift changeover may occur by mutual agreement with the Company and the employee...

2.1.8 ...” (my emphasis)

[62] 2011 Agreement

[63] The 2011 Agreement maintains the provisions contained in the 2008 Agreement in Appendices A-1 to A-3 and Appendix A-7.

[64] The history of the enterprise agreements demonstrates that since 2004, two terms relating to rosters have lived “side by side” without any apparent disputation. One term states that change to the roster will be subject to consultation and any variation is by agreement between the Employer and the majority of employees affected by the change. The second term is that the employees have to comply with the Employer’s reasonable request with regard to roster arrangements.

[65] Both terms continue to exist in the 2011 Agreement. Neither party denies the existence of the terms, however, each party takes a different view as to the meaning and application of each subclause.

[66] With respect to both terms, the subject matter is the roster.

[67] The AWU submits that the roster is immutable and can only be varied by consultation and agreement with the majority of affected employees.

[68] The Employer submits that subclause 2.1.6 of Appendix A-7 of the 2011 Agreement requires employees to comply with any reasonable request with regard to roster arrangements, including the “5 on, 2 off” arrangement.

[69] Clause 2: Hours of Work in Appendix A-7 of the 2011 Agreement contains terms which, despite the appearance of being contrary to one another, each party submits actually complements one another.

[70] The AWU submits that the “8 on, 6 off’ roster should exist untouched (except by agreement) and that the Employer’s “reasonable request” relates only to minor matters such as start and finish times of shifts or temporary variations. In short, the primacy of the roster remains intact and the provisions of subclause 2.1.6 of Appendix A-7 is complementary, but subservient, and relate to “minor” matters only.

[71] The Employer’s submission is that its preferred position is to change the roster arrangements by consultation and agreement but, on this occasion, has chosen the alternative route of requiring operator compliance with its reasonable request. In short, while both subclauses “stand alone”, the terms are complementary in that if the Employer does not wish to choose the more consultative approach, it can adopt the more instructive option.

[72] Clearly, the parties have a different view on how the 2011 Agreement should be interpreted and applied to a change in rosters for employees covered by the enterprise agreement. In view of the contrasting positions, it is necessary to consider the principles of the interpretation of industrial agreements.

Interpretation of Enterprise Agreements

[73] The Full Bench in Cape Australia Holdings Pty Ltd T/A Total Corrosion Control Pty Ltd v Construction, Forestry, Mining and Energy Union [2012] FWAFB 3994 (Cape Australia Holdings) set out under the heading “The Interpretation of Enterprise Agreements” the following:

“[7] As to the general approach to the construction of enterprise agreements the observations of French J, as he then was, in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (Wanneroo) are apposite:

“[53] The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘...the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘....ideas that gave rise to an expression in a document from which it has been taken’ - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services Union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J).”

[8] While his Honour’s observations were made in the context of interpreting an award the same principles apply to the interpretation of enterprise agreements. For example, similar observations were made by their Honours Gummow, Hayne and Heydon JJ in Amcor v CFMEU:

“Clause 55.1.1 must be read in context. It is necessary, therefore, to have regard not only to the text of cl 55.1.1, but also to a number of other matters: first, the other provisions made by cl 55; secondly, the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it; and, thirdly, the legislative background against which the Agreement was made and in which it was to operate.”

[9] The fact that the instrument being construed is an enterprise agreement is itself an important contextual consideration. As French J observed in Wanneroo, at paragraph [57]:

“It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities - City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned - see eg GeoA Bond and Co. Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):

“Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.”

[10] None of these principles were matters of contention in these proceedings and we have applied them in the determination of the appeal. The issue on appeal is the application of the principles to clause 5 of the Total Corrosion Control Agreement.”

[74] I have adopted the approach of the Full Bench in Cape Australia Holdings.

[75] Subclause 2.1.4 of Appendix A-7 of the 2011 Agreement can be broken into two parts. The first part is a process by which changes to the roster are subject to consultation. Simply put, the parties have agreed to confer and deliberate on any proposed change to the roster.

[76] Having consulted, the parties have agreed to make any variation subject to agreement between the Employer and majority of employees affected. Consequently, subclause 2.1.4 of Appendix A-7 of the 2011 Agreement, results in uncertainty where the Employer, or a majority of employees, may veto a variation to the roster for whatever reason.

[77] On one reading of subclause 2.1.4 of Appendix A-7 of the 2011 Agreement, the parties have agreed to a process by which a change of rosters is, in the absence of agreement, uncertain or unworkable. By unworkable, I mean that no resolution can be reached within subclause 2.1.4.

[78] Accordingly, the question has to be asked whether the parties would have sensibly committed themselves to a term in the 2011 Agreement that, if there was no consensus with respect to varying the rosters, an impasse exists from which there was no resolution. This is the view put by the AWU.

[79] The other option put by the Employer is that subclause 2.1.6 of Appendix A-7 of the 2011 Agreement is the alternative process of varying the roster. In the absence of agreement with the majority of employees, the resolution to the impasse in subclause 2.1.4 can be found in subclause 2.1.6 of Appendix A-7 in which the employees shall comply with the Employer’s reasonable requests with regard to the roster arrangements. This subclause becomes the “safety valve” when the parties fail to agree.

[80] Evidence was given of the parties’ intention at the hearing, as to the meaning of subclause 2.1.6 of Appendix A-7.

[81] Ms Taylor gave evidence that she was appointed as the bargaining representative for the Employer in May 2011 and was directly involved in bargaining for the 2011 Agreement until it was made in February 2012 14.

[82] A key issue for the Employer in bargaining for the 2011 Agreement was roster flexibility throughout its operations. This need for roster flexibility was documented in a paper dated 18 August 2011 and reads as follows:

“Roster flexibility

Introduce absolute roster flexibility as determined by EDL, including travel in the employee’s time.” 15

[83] Ms Taylor’s uncontested evidence was that:

“During the meeting on 20 December 2011, the bargaining representatives agreed that the effect of clause 3.1.5 [of the 2008 Agreement] was to permit EDL to change the roster where operational requirements presented no other viable alternative. On the basis of this understanding, EDL accepted that it was not necessary to include a more specific clause that expressly enabled unilateral changes to rosters in the Agreement.” 16

[84] The minutes of the 20 December 2011 bargaining meeting record, under the heading “Roster Flexibility” that the issue for the Employer is location specific and “rosters would depend on operational requirements.” The employee representative responded that the “current arrangement is not broken so don’t fix it.” Further, the “employees [are] concerned that employer will just change roster without agreement. No need to change when worked fine for 10 years”. The discussion ends with Ms Taylor stating, “Most important issue for company [and] we understand that staff want certainty around rosters. We have listened to employees, prepared to withdraw claim, provided staff will be fair and reasonable in relation to roster changes. That employee’s will not unreasonably refuse roster change where there is an operational requirement” 17.

[85] Ms Taylor recalls an AWU representative at the meeting making the comment, “This clause allows you to do what you are asking for” 18. This evidence was not challenged at the hearing, however, it follows from an earlier discussion concerning operators ceasing work early on the eighth day of a roster.

[86] Mr Smith’s evidence corroborates the evidence of Ms Taylor. Mr Smith, on behalf of the Employer, nominated Ms Taylor as the bargaining representative and was present at the 20 December 2011 bargaining meeting 19.

[87] Mr Wood gave evidence on behalf of the AWU that he was employed by the Employer from January 2008 and a union delegate for negotiations of the 2008 Agreement. Towards the end of negotiations, there was a “car park meeting” to discuss circumstances where an operator was rostered to “work away but needed to be home for personal reasons like their wife’s birthday.” When subclause 2.1.5 of Appendix A-7 was agreed to by the Employer and put into the 2008 Agreement, it finalised the proposed 2008 Agreement. Mr Wood’s understanding of the 2008 Agreement was that if the Employer “wanted to make a permanent change to the roster..., then EDL would need a majority of the work group to agree.” Further, “if one of the guys needed to swap their shift rostered away with someone else, they could do that under clause 2.1.5” and finally, “if EDL wanted to make minor changes within the roster then we need to follow reasonable requests from EDL for those types of changes”. 20

[88] Mr Wood’s evidence goes to the introduction of subclause 2.1.5 but not subclause 2.1.6 of Appendix A-7. Mr Wood could not give evidence in relation to subclause 2.1.6 simply because it was introduced into the 2004 Agreement when he was not an employee of the Employer.

[89] Mr Wood confirms that the Employer sought “full flexibility to change the roster without agreement from employees”. When the AWU put to the Employer to provide examples where a work group had refused a reasonable request “for a variation to the roster”, it could not. Mr Wood gave an example where a work group changed “the start and finish times of a shift for a short time” 21.

[90] Mr Wood confirms that the Employer “dropped its request for full flexibility from negotiations”. 22

[91] Mr Wood concedes that during negotiations, the Employer indicated that it was “looking” at arrangements for a South Australian work group to move to a “5 on, 2 off” roster but that it was not mentioned in the context of the West Kimberley.

[92] Mr Wood concluded his evidence on the basis that his understanding of the 2011 Agreement is that it did not allow major changes to the shift patterns unless a majority of employees agreed. Further, his understanding of subclause 2.1.6 of Appendix A-7 is that employees could not resist “temporary variations within the specified roster or specified shift pattern” 23.

[93] Having considered both subclauses 2.1.4 and 2.1.6 of Appendix A-7 of the 2011 Agreement, there is tension or uncertainty as to their application. However, when following the Full Bench in Cape Australia Holdings, “regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument as a whole...”.

[94] Subclauses 2.1.4 and 2.1.6 of Appendix A-7 of the 2011 Agreement can be construed both as “complementary” or “stand alone”.

[95] Finally, in case there is any misunderstanding of whether the Employer has a reasonable request in moving to a “5 on, 2 off” roster arrangement, this was set out in the unchallenged evidence of Mr McLaughlin. The Employer has sought to change the roster for efficiency, reliability and safety reasons. I am satisfied that the detailed reasons given by Mr McLaughlin are reasonable for the purposes of subclause 2.1.6 of Appendix A-7 of the 2011 Agreement. However, this is not on point for the purposes of this decision.

[96] I consider that in the process of creating the enterprise agreements, the parties intended for certainty of meaning and application of the roster. The certainty of the roster was essentially “locked in” and only could be changed by consensus.

[97] While it may seem strange that an employer would want to lock itself into an agreed roster, it is notable that with the 2008 Agreement, the Employer made an application to exempt the agreement from publication. In doing so, it made the statement:

“EDL has developed innovative work rosters for its remote WA operations that it wishes to keep protected from its competitors.

This roster is a competitive advantage that assists EDL to attract and retain employees in a difficult employment market.

EDL has invested considerable funds, time and intellectual resources in the development of this roster.”

[98] The difficulty I have with Ms Taylor’s documentary evidence, and I do not doubt its veracity, is that it can be read two ways. Firstly, the Employer’s claim for “roster flexibility” is what it says - a roster which can “bend without breaking”, “supple” or “adaptable” - the Australian Concise Oxford English Dictionary definition of “flexible”. That is, an agreed roster which can be adapted to particular operational circumstances as they arise. I find support for this view in the second sentence of subclause 2.1.6 of Appendix A-7. The entire subclause is repeated again with my emphasis.

“Operators shall comply with the Company’s reasonable requests with regard to roster arrangements. Operators shall be required On-call outside of normal working hours to respond to operational upsets and shutdowns at the Company’s operating facilities.” (my emphasis)

[99] The second sentence appears to give an indication of the sort of “reasonable request” envisaged in the first sentence.

[100] The second difficulty I have with the documentary evidence is that the minutes states “we understand that staff want certainty around rosters. We have listened to employees, prepared to withdraw claim...” The minutes are constructed in such a way as to infer that the Employer realises the importance of certainty of agreed rosters for employees and retreats from its claim, save to say, “provided staff will be fair and reasonable in relation to roster changes” - that is changes occasioned by operational requirements.

[101] The AWU representative’s comment at the meeting may have been nothing more than the Employer having absolute flexibility with making changes to the agreed roster for operational requirements.

[102] Finally, it is difficult to avoid consideration of why the Employer would set out in its list of matters for discussion with the AWU (essentially the Employer’s log of claims) the introduction of absolute roster flexibility, if it was already of the view that it had the ability to change the roster on reasonable grounds anyway. The word “introduce” connotes bringing into use something that was not there in the first instance. I also note, for comparison purposes, the Employer uses the word “clarify” in relation to other items for discussion with the AWU. “Clarify” infers that something is already in existence as compared to “introduce” which presumes something not already in existence. The Employer distinguished in its log of claims between matters for clarification and introduction - in this case, it was seeking to introduce roster flexibility and not clarifying what it considered to be its right to change the roster in the absence of agreement pursuant to subclause 2.1.4 of Appendix A-7.

CONCLUSION

[103] For the reasons set out above, I am satisfied that the specific provisions in subclause 2.1.4 of Appendix A-7 of the 2011 Agreement require consultation and the specific agreement of both the majority of employees at the workplace and the Employer, before there is any variation to the agreed roster.

[104] Secondly, I am satisfied that the general provisions in subclause 2.1.6 of Appendix A-7 of the 2011 Agreement do not diminish, or detract, from the specific provisions in subclause 2.1.5.

[105] Thirdly, I am satisfied that the meaning and application of subclause 2.1.4 of Appendix A-7 of the 2011 Agreement only applies to changes within the agreed roster in subclause 2.1.6 which are reasonable and primarily relate to day to day operational needs.

[106] Further, in view of the uncertainty of meaning and application of subclauses 2.1.4 and 2.1.6 of Appendix A-7 of the 2011 Agreement, I am satisfied that the extrinsic evidence does not demonstrate that the general words in subclause 2.1.6 in the 2011 Agreement, and its predecessors, was intended to be derogatory to the specific words in subclause 2.1.4.

[107] Finally, in view of the trial roster currently in place, I recommend the parties confer on an appropriate course of action, which takes into account the needs of the Employer and affected employees.

COMMISSIONER

Appearances:

E Douglas, on behalf of the Applicant.

N Taylor of counsel on behalf of the Respondent.

Hearing details:

2013:

Perth,

29 July.

 1   Exhibit R1

 2   Exhibit R1

 3   Exhibit R1

 4   Applicant’s written submission - paragraph 11

 5   Applicant’s written submission - paragraph 12

 6   Applicant’s written submission - paragraph 16

 7   Applicant’s written submission - paragraph 18

 8   Applicant’s written submission - paragraph 20

 9   Employer’s written submission - paragraph 2.3

 10   Employer’s written submission - paragraph 2.8

 11   Employer’s written submission - paragraph 2.9

 12   Employer’s written submission - paragraph 2.11

 13   Employer’s written submission - paragraph 2.13

 14   Exhibit R3

 15   Exhibit R3(1)

 16   Exhibit R3

 17   Exhibit R3(2)

 18   Exhibit R3

 19   Exhibit R4

 20   Exhibit A4

 21   Exhibit A4

 22   Exhibit A4

 23   Exhibit A4

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