Transport Workers' Union of Australia-New South Wales Branch v Busways Gosford North Pty Ltd trading as Busways Group

[2014] FWC 409

[2014] FWC 409

FAIR WORK COMMISSION

DECISION

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

Transport Workers' Union of Australia-New South Wales Branch
v
Busways Gosford North Pty Ltd trading as Busways Group
(C2013/5379)

COMMISSIONER STANTON NEWCASTLE, 15 JANUARY 2014

Section 739 - Application to deal with a dispute - alleged dispute concerning application of enterprise agreement - approach to interpretation of enterprise agreements - ss738 and 739 Fair Work Act 2009 (Cth) - requirement to deal with dispute in accordance with Dispute Resolution Procedure - enterprise agreement affords employees penalty rates of pay - employee compensated and to be paid in accordance with the provisions of the enterprise agreement..

[1] On 31 July 2013, Transport Workers' Union of Australia-New South Wales Branch (the Union) made application for the Fair Work Commission to deal with a dispute between the Union and Busways Gosford North Pty Ltd trading as Busways Group (Busways) pursuant to s.739 of the Fair Work Act 2009 (the Act).

[2] The relevant industrial instrument is the Busways Group (Sydney) and the Transport Workers’ Union of Australia Fair Work Agreement 2012 1 (the Enterprise Agreement). The application was listed for Conference proceedings on 6 August 2013. However, that conference was vacated by consent at the request of the respondent. The application was subsequently listed for conference on 12 August 2013. The dispute remained unresolved and the parties subsequently agreed the application should proceed to arbitration in accordance with s.739 of the Act and clause 31, Dispute Resolution Procedure under the Enterprise Agreement.

[3] Shortly stated, the dispute concerns the application of the Enterprise Agreement in circumstances where an employee performs work on a scheduled rostered day off.

[4] Relevantly, the Disputes Resolution Procedure provides for the following procedures to apply where disputes submitted to the Commission remain unresolved following conciliation:

31. Dispute Resolution Procedure

...

(f) If the matter is not resolved in conciliation conducted by FWC, the parties agree that FWC shall proceed to arbitrate the dispute and/or otherwise determine the rights and/or obligations of the parties to the dispute. In relation to such an arbitration, the parties agree that:

(i) FWC may give all directions and do all such things as are necessary for that just resolution of the dispute, including but not limited to those things set out in Division 3 of Chapter 5 of the Fair Work Act 2009.

(ii) Before making a determination FWC will give the parties an opportunity to be heard formally on the matter(s) in dispute.

(iii) In making its determination FWC will only have regard to the materials, including witness evidence and submissions, put before it at the hearing and will disregard any submissions, concessions, offers or claims made in conciliation.

(g) The decision of FWC will be binding on the parties subject to the following agreed matters:

(i) There shall be a right of appeal to a Full Bench of FWC against the decision, which must be exercised within 21 days of the decision being issued or within such further time as the Full Bench may allow.

(ii) The appeal will be conducted in accordance with the legal principles applying to an appeal in the strict sense.

(iii) The Full Bench (or a nominated member of the Full Bench) shall have the power to stay the decision pending the hearing and determination of the appeal.

(iv) The decision of the Full Bench in the appeal will be binding upon the parties.

(h) ...

(i) The parties to the dispute agree to be bound by any decision made by the Fair Work Commission in accordance with this term. The parties undertake to resolve any disputes in a timely manner in accordance with the procedure set out in this clause and will co-operate to ensure that these procedures are carried out expeditiously.

In consideration of the material before the Commission concerning this dispute, I am satisfied there has been compliance with the requirements of clause 31, Dispute Resolution Procedure.

[5] Directions for arbitration of the dispute were subsequently issued with an agreed timetable for the filing of evidentiary materials and a hearing date of 21 November 2013.

[6] Mr Armstrong's normal work roster is Tuesday to Saturday inclusive. He was scheduled to have a rostered day off work on Monday, 11 March 2013. On that day, another employee phoned in sick and Mr Armstrong was asked to work in his place. Mr Armstrong contended he reluctantly agreed.

[7] Before the commencement of that shift, Mr Armstrong contended he was instructed to take the next day off to make up for the rostered day off he had missed. Mr Armstrong further contended he did not want to take that day off. However, he felt that this was an instruction of management and was therefore obligated. Mr Armstrong maintained he was not aware of his ability under the Enterprise Agreement to refuse this request nor was he aware of his rights under the Enterprise Agreement in respect to working on a rostered day off and the appropriate rate of pay to which he was entitled.

[8] Subsequently, Mr Armstrong later discovered that he was entitled to be paid penalty rates for the day he was called into work unless he agreed to take an alternate day off.

[9] Mr Armstrong made several unsuccessful attempts to resolve the matter, both by himself and with the assistance of the Union.

Witnesses

For the Union

Mr K Armstrong, bus driver.

Mr G Tsolakis, bus driver.

Mr A Dalglish, bus driver.

For Busways

Mr A Turner, Operations Controller.

Mr M Verheyden, (formerly) Operations Controller.

Mr M Rizzardo, Group Operations Support Manager.

Mr A Kendall, Kincumber Depot Manager

Evidence - the Union

Mr Kevin Armstrong

[10] Mr Armstrong was employed by Busways for approximately three and a half years. As part of his regular work roster he has every Sunday and Monday off work each week.

[11] Mr Armstrong received a phone call on Monday, 11 March 2013 from Mr Adam Turner, requesting that he come to work to cover Shift 342K. It was Mr Armstrong’s evidence that he normally played golf on Monday’s and was generally unable to cover such shift requests. The following exchange ensued:

Turner: “Can you come in to work?”

Armstrong: “I don’t really want to, only if you’re stuck.”

Turner: “Yes we are”

Armstrong: “Okay”. 2

[12] Mr Armstrong subsequently reported for work and prior to the shift commencing he was told by Mr Turner to take the next day off. Mr Armstrong was not happy about the situation and “did what I was told.” Mr Armstrong stated the following exchange subsequently ensued:

Turner: “Just take tomorrow off.”

Armstrong: “Okay”. 3

[13] Mr Armstrong confirmed that at the time he agreed to take Tuesday, 12 March 2013 off in lieu of the previous day, he was unaware that the Enterprise Agreement provided that he would be paid that day at the rate of time and one-half. Had he been given a choice, Mr Armstrong said he would have requested the Saturday off so as to give him a three-day weekend.

[14] Mr Armstrong also confirmed he had never been required to work on a rostered day off prior to this particular request.

[15] Shortly thereafter, Mr Armstrong received his pay slip for the period which showed he was only paid single time for working on 11 March 2013. He raised the “mistake” with Mr Turner who he believed was apologetic and agreed the rate would be rectified. Mr Armstrong subsequently raised the issue again with Mr Turner following the next pay cycle due to the mistake not being rectified. Mr Turner could not provide an adequate response.

[16] On 4 May 2013, Mr Armstrong approached Mr Marcel Verheyden, concerning his pay issue. Mr Verheyden stated “Charlie, if you want to carry on about this (Day off cancelled) ...if the drivers want to behave like this we’ll make them sign shift swap forms.” 4 Shortly thereafter Mr Armstrong raised the issue during a meeting with Mr Andrew Kendall and management staff. He informed Mr Kendall his main concerns regarding the issue of pay for the “Day off Cancelled” (DOC). Mr Kendall subsequently asked him, “Are you unhappy with the day you got off in lieu?”5

[17] Mr Kendall subsequently told Mr Armstrong to approach the receptionist, Helen, to “type me up a letter” which stated that he was happy with the day off in lieu. It was Mr Armstrong’s evidence that the receptionist did not know what to write and he was unable instruct her because “I did not know either.” 6

[18] Mr Armstrong stated that after signing the letter, he felt intimidated and frustrated at “being pressed into a position.” 7

[19] In cross-examination, Mr Armstrong denied that he had “swapped” shifts on the day in which he worked on his rostered day off. 8 He further maintained that Busways should have allowed him to work on 12 March 2013.9 He was not cognisant of the relevant provisions of the Enterprise Agreement at the time.10

[20] Mr Armstrong was emphatic that when he met with Mr Turner and later, Mr Kendall, neither informed him that at the time, he had the option of being paid at the rate of time and one-half or, taking the following day off. 11 He later agreed that Mr Kendall had offered to pay him time and one-half.12

[21] Mr Armstrong further denied that when Mr Turner first contacted him to work on 11 March 2013, Mr Turner put to him the option of being paid overtime or taking another day off. Rather, Mr Turner simply stated, “Have the next day off.” 13

[22] Mr Armstrong stated that while he was aware of the practice of drivers swapping shifts, he had not personally swapped a shift with another driver. 14 He was also unaware that in situations where a driver swaps a shift, overtime is not applicable.15 Mr Armstrong contended that he was seeking overtime payments for the working on his rostered day off plus single time for the following day he was told to take off.16

Mr Gregory Tsolakis

[23] Mr Tsolakis’ evidence was that on 12 March 2013, he was rostered to have a day off work. At approximately 10.30 am, he received a phone call from Mr Turner who asked him whether he was available to come into work to cover Shift 342K. He agreed to the request and when he arrived at work that day, Mr Turner thanked him for coming in at short notice.

Turner: “Thanks for coming in on short notice, have tomorrow off.” 17

[24] Mr Tsolakis stated that when he received his pay on 19 March 2013, he was only paid at the single time rate for the rostered day off, or DOC worked on 12 March 2013. He later approached Mr Turner and asked him what was going on. The following conversation ensued:

Turner: “This is correct because you had the following day off in lieu of that day.”

Tsolakis: “I only did that because you told me to.” 18

[25] Mr Tsolakis later read the Enterprise Agreement. After reading the Agreement it became clear to him that Mr Turner had no right to tell him to take the next day off in lieu as he did not consent to his request.

[26] Mr Tsolakis conferred again with Mr Turner at approximately 7.00 am on 21 March 2013 when he told Mr Turner about his rights under the Agreement:

Tsolakis: “I have not been paid the penalty rates for my DOC. I was doing you a favour and helping out the company. In return, I’ve lost a day’s work on your say so.” 19

[27] Mr Tsolakis stated that when he agreed to cover the shift on 11 March 2013, Mr Turner did not advise him that he could refuse to take the following day off as requested or that in the event he did take the day off, he would not be paid the relevant penalty rates for the day in question. Meanwhile, Mr Turner refused to assist Mr Tsolakis any further. Shortly thereafter, he spoke to Mr Mark Rizzardo who was visiting the Kincumber Depot from the Pymble Head Office. He explained what had occurred and Mr Rizzardo told him:

You should have been paid the appropriate penalty rates and you shouldn’t have been told to take the next day off. Leave it with me, I’ll deal with it. 20

[28] On 25 March 2013, the Regional Manager, Mr Bob Mason, called into the Kincumber Depot to discuss the matter. The following conversation ensued:

Tsolakis: “I’m concerned that the people in the office don’t know about the EA. If it was put to me that I was entitled to have a day off during the week but if I did I would lose my penalty rates and a days pay, then it would be my choice what I do. As it stands I have lost on both fronts, I should have been given a choice.

Mason: “Yes, that’s how it should have happened.”

Tsolakis: “You can’t change my RDO without me requesting it.”

Mason: “In the future, we will have to get employees to sign forms confirming that they requested to change their RDO to stop this happening.” 21

[29] Mr Tsolakis stated that on 26 March 2013 he was paid the correct penalty rates for working on 11 March 2013 and a full day’s pay for the following day which Mr Turner had previously told him to take off.

[30] Mr Tsolakis’ statement filed in this matter was supported by a number of contemporaneous diary entries made between 4 and 31 March 2011.

[31] In cross-examination, Mr Tsolakis denied he had embellished comments attributed to Mr Mason. 22 Mr Tsolakis further stated that in relation to his conversation with Mr Rizzardo he had agreed that he would not speak about the matter.23 However no such caveat was placed on his conversation with Mr Mason.

[32] Mr Tsolakis stated that in his four years with Busways he was not aware of any situation where the company might ring a driver to cover a shift at short notice and simultaneously inform the driver that he could take the following day off. 24

[33] It was also Mr Tsolakis evidence that when the Enterprise Agreement was put to a vote in January 2013, only one copy was made available to drivers at the Kincumber Depot and that copy was placed in the office area. He subsequently confirmed that he was not given a personal copy of the Enterprise Agreement. 25

Mr Andrew Dalglish

[34] Mr Dalglish was not required for cross-examination.

[35] Mr Dalglish deposed that he was required to take sick leave on Monday, 11 March 2013 to care for his sick children. He also stated that Mr Armstrong performed his 342K Shift that day. However, it was Mr Dalglish’s evidence that at no time did he make contact or confer with Mr Armstrong regarding him covering his shift.

Evidence - Busways

Mr Adam Turner

[36] Mr Turner stated that part of his role as Operations Controller was to fill shifts to ensure a continuity of bus services. On 11 March 2013, he noticed there was a shortage of bus drivers. He also noticed that the Mr Armstrong had a rostered day off that day. Whilst he was aware the applicant usually played golf on his day off, he decided to call him in any event. Mr Turner subsequently telephoned Mr Armstrong and the following conversation ensued:

Turner: “We are short of drivers. What are you doing today?” 26

Armstrong: “For the first time in years I am not playing golf.” 27

During the course of the conversation, Mr Turner considered Mr Armstrong showed an interest in working that day. Accordingly the following conversation ensued:

Turner: “You can come in and work overtime or you can take another day off.”

Armstrong: “I would prefer to have another day off.” 28

[37] Mr Turner subsequently suggested to Mr Armstrong that he work on the Monday and take the next day off. In that regard he contended Mr Armstrong was happy with the arrangement.

[38] Mr Turner referred to the meeting on 24 March 2013 between Mr Kendall and Mr Armstrong where the issue concerning his payment for 11 March 2013 arose. Mr Turner stated Mr Kendall offered to pay Mr Armstrong at the rate of time and one-half if he wanted to be paid penalty rates rather than have the extra day off. In that regard he recalled Mr Armstrong saying words to the effect:

Don’t worry about the extra money, I was happy to help. 29

[39] It was Mr Turner’s evidence that at all times he and Mr Kendall reassured Mr Armstrong that if he wanted to be paid at the higher rate, that could occur without any ramifications. Further, during the course of the meeting Mr Armstrong was asked to confirm his position and he subsequently wrote the following note addressed to Busways:

I, Kevin Charles Armstrong, do not wish to claim extra earnings for the RDO I exchanged during March. 30

[40] It was also Mr Turner’s evidence that on 11 March 2013 he did not inform Mr Armstrong that he had to work on that day nor did he tell him to take the next day off. He also contended that it was common practice within the Kincumber Deport for drivers to swap shifts to suit their convenience.

[41] In cross-examination, Mr Turner stated there was a practice within the Kincumber Deport for drivers to swap their shifts on weekends. 31 He also confirmed his view that when a driver calls in sick and another driver is allocated that shift, it is not a shift swap.32 Mr Turner confirmed that the situation concerning Mr Armstrong on 11 March 2013 was not a shift swap.33

[42] It was Mr Turner’s evidence that Mr Armstrong did not tell him that he really did not want to work on 11 March 2013. With reference to the Enterprise Agreement, it was Mr Turner’s understanding that the DOC provisions allowed for a driver to work on a day off and then have another day off in lieu. 34 He also confirmed that had Mr Armstrong worked on the Tuesday then he would have accrued overtime during that week on the grounds that he had worked six days.35

[43] Mr Turner could not recall or remember Mr Armstrong approaching him concerning payment for the day he worked on 11 March 2013 nor could he recall whether Mr Tsolakis approached him concerning the alleged wrongful payment for his DOC or, whether he had any conversation with Mr Tsolakis about such matters. 36 However he did agree that the circumstances surrounding Mr Tsolakis being called in to fill in for a sick driver were identical to those concerning Mr Armstrong.37

Mr Marcel Verheyden

[44] The substance of Mr Verheyden’s evidence was that he denied that he spoke to Mr Armstrong on 4 May 2013 in the manner described by Mr Armstrong in his written statement. He further stated:

At no time whilst I occupied the position of Operations Controller did I comment to Mr Armstrong regarding issues of overtime or if he didn’t sign a letter stating he didn’t wish to be paid at the higher rate.” 38

[45] In cross-examination, Mr Verheyden stated it was his view that Mr Armstrong worked on Monday, 11 March 2013 and took the following day off by mutual agreement. 39 He understood Mr Armstrong was approached about swapping his shift.40 Mr Verheyden further qualified his evidence by agreeing that if a driver calls in sick and another driver is called into work in his or her place, that situation is not a “shift swap”. However, where a driver responds favourably to a question, “Are you willing to swap?”, then the prerequisites for a “shift swap” would be met.41

[46] With reference to Mr Tsolakis’ pay issues concerning his DOC, Mr Verheyden stated he may have been involved in addressing those issues. 42 Moreover, he could not recall a meeting involving Mr Mason and Mr Tsolakis convened on 25 March 2013. He later agreed that given his position at the time of Operations Controller, it was possible that he may have been involved in that meeting.

[47] It was also Mr Verheyden’s evidence that during the week, Monday to Friday, shift swaps occurred “fairly seldom.” 43

[48] In re-examination, Mr McDonald referred Mr Verheyden to the procedures that applied with Mr Armstrong and Mr Tsolakis who were asked to work on their rostered days off and were offered days off in lieu. Mr Verheyden’s response was that Busways offered days off in lieu, but while that practice is in place it does not happen regularly. 44

Mr Mark Rizzardo

[49] Mr Rizzardo deposed he was the Group Operations Support Manager with Busways. Shortly stated, Mr Rizzardo’s evidence sought to refute the evidence of Mr Tsolakis concerning the conversation that allegedly occurred between Mr Tsolakis and himself on or about 21 March 2013. It was Mr Rizzardo’s evidence that he told Mr Tsolakis to discuss his pay issue with the then acting Manager, Mr Kendall. Further he denied expressing any opinion about the matter to Mr Tsolakis. He was also unaware of the outcome of Mr Tsolakis’ claim until he read his statement filed in favour of the applicant in this matter. 45

[50] It was also Mr Rizzardo’s evidence that he was aware of the practice within the Kincumber Depot that drivers swapped shifts to suit their convenience and in some instances, those drivers preferred to take a day off in lieu of payment or changing their shift. 46

[51] In cross-examination, Mr Rizzardo was emphatic that he told Mr Tsolakis to talk about his pay issue with Mr Kendall. In that regard, he was also adamant that following the approach from Mr Tsolakis, he did not return to the Busways office and discuss the matter with Mr Kendall. Rather he continued to drive through the gate towards his home. It was also Mr Rizzardo’s evidence that he wasn’t personally involved in assisting drivers with swapping shifts or with DOC by Busways. 47

Mr Andrew Kendall

[52] Mr Kendall is the Kincumber Depot Manager. It was Mr Kendall’s evidence that a practice existed within the Depot for drivers to swap shifts to suit their convenience or for Busways to request changes to suit its operational requirements. In that regard, where a driver works on his rostered day off, he or she is entitled under the Enterprise Agreement to time and one-half unless some other arrangement, such as taking time of lieu or swapping of shifts occurs. It was his understanding that Mr Armstrong agreed to work on 11 March 2013 and would subsequently take another day off in lieu. 48

[53] During the course of a meeting involving Mr Armstrong and Mr Turner convened on 24 April 2013, Mr Kendall recalled the following conversation ensued:

Kendall: “You work for us on the 11th to fill in for us. How do you want to be paid? You can be paid at time and a half for the day you worked or at single time and have the extra day off you took the next day.”

Armstrong: “I don’t want to cause an issue with Busways Management by being paid at time and a half as I may be labelled a scab.”

Kendall: “I assure you that you can choose either method of pay and it won’t change our relationship at all.” 49

[54] It was also Mr Kendall’s evidence:

The applicant decided to accept the payment at single time and half (sic) the day off as occurred. The applicant also agreed to confirm his position in writing and I ask (sic) him to see one of our secretarial staff to draft a small confirmatory note. 50

[55] In relation to Mr Armstrong’s statement filed as part of these proceedings, Mr Kendall denied stating to Mr Armstrong, “Are you unhappy with the day you got off in lieu?” In that regard Mr Kendall denied any pressure was applied to Mr Armstrong to make any decision and he further denied that Mr Armstrong was subjected to any pressure or intimidation to sign the letter stating that he was happy with the day off in lieu. 51

[56] Mr Kendall also stated that he understood Mr Armstrong was advised by the Union about what he should make a claim and on 6 May 2013, he received a letter from Mr Armstrong in the following terms:

After careful consideration, I am requesting payment of the correct wage, including penalty rates, for the 11th March 2013 when I was asked by Busways to work on my RDO. I also believe after reading the EBA I am entitled to be paid for the following day of in lieu of my DOC, that Busways asked me to take (12 March 2013). This was a day where I could’ve worked but didn’t know my rights to refuse at the time. 52

[57] In cross-examination, Mr Kendall confirmed that he was the appropriate Busways Management representative to authorise driver shift swaps. 53

[58] Mr Kendall stated there were two types of shift swaps. Firstly, the shift swap may occur where one driver swaps his or her shift with another driver. The other circumstance is where Busways requires a driver to work on a particular day which falls on his or her rostered day off:

We want him to come in and work, so I’m just giving the option of working that day and then if he wants another day off in the week, to take another day off in - so he has done a shift swap from one day to another, but not with another driver. 54

Shift swaps can occur the day before the scheduled shift, or in some circumstances, on the morning of that shift. 55 Mr Kendall agreed that in circumstances where a driver calls in sick and another driver takes his or her place, then that situation is not a shift swap.56 Mr Kendall was also emphatic that Mr Armstrong was happy with the arrangement and did not wish to be paid any extra monies for working on his rostered day off.57

[59] Mr Kendall stated that he sought Mr Armstrong to commit his acceptance in writing so as to be clear that it was his choice not to be paid the additional amounts that apply under the Enterprise Agreement. 58 Mr Kendall stated that he was not completely familiar with the Enterprise Agreement and agreed that Mr Armstrong may not have known about his rights to be paid on his day off cancelled.59

[60] Mr Kendall could not recall attending a meeting with Mr Tsolakis and Mr Rizzardo on 21 March 2013. 60

Submissions

The Union

[61] The Union submitted the dispute concerned the payment for Mr Armstrong performing work on a rostered day off and the subsequent day he was instructed to have off. The parties participated in a conciliation conference on 13 August 2013. However, the matter was not resolved.

[62] Mr Armstrong was due to have a rostered day off work on Monday, 11 March 2013. On that day, another employee phoned in sick and Mr Armstrong was required to work in his place. Mr Armstrong reluctantly agreed.

[63] Before the commencement of that shift, Mr Armstrong was instructed to take the next day off to compensate for the rostered day off he had missed. Although Mr Armstrong did not want to take that day off, he felt that this was an instruction of management and therefore was obliged to accept the direction. Mr Armstrong was not aware of his ability under the Enterprise Agreement to refuse this request. He was also unaware of his rights under the Enterprise Agreement in respect to working on a rostered day off and the appropriate rate of pay to which he was entitled.

[64] Subsequently, Mr Armstrong discovered that he was entitled to be paid penalty rates for the day he was called into work on his rostered day off, also known in the industry as a “Day off cancelled”. He also found that he was not required to take the next day off and could have refused that request.

[65] Mr Armstrong attempted to resolve the matter. He was met with firm opposition from Busways and was forced to sign a letter under duress, which he did not write himself, that stated he was happy to take the additional day off in lieu of his rostered day.

[66] The Enterprise Agreement contemplates a situation where an employee is required by Busways to perform work on a rostered day off. Subclause 18(b) states that:

Where an employee is required to work on any day rostered off, time worked thereon shall stand alone and shall be paid for at the rate of double time if worked on a Sunday, or at the rate of time and three-quarters if worked on a Saturday, or at the rates of time an (sic) one-half if worked on any other day.

Relevantly, subclause 18(d) states:

This subclause shall override any application of clause 9 in this Agreement.

[67] Subclause 9(c) states:

Employers and employees may, by agreement, defer “time off” for up to a maximum of five days with such deferred time off to be taken within a period of six months from the date on which agreement to defer was reached.

[68] Subclause 9(o) states:

Employees may be permitted to interchange work to meet their personal convenience, provided that such change is with the consent of the employer.

[69] The Union further submitted the dispute concerned the interaction between clause 18 and clause 9 and that subclause 18(d) extinguished the right contained in clause 9, namely to swap the shift to avoid the obligation to pay penalty rates under clause 18. In this matter, Mr Armstrong was subject to a request from Busways to attend work on 11 March 2013. There was no element of shift swapping that occurred. In fact, Mr Armstrong was unaware of the identity of the driver that had called in sick, until his name was raised in evidence. 61

[70] There is no doubt that Mr Armstrong was required to work on a rostered day off. Accordingly, Busways was liable to pay him time and one-half, as the day worked was a Monday, his rostered day off.

[71] Moreover, on 11 March 2013, Mr Armstrong was told by Mr Turner to take the next day off work. This day would be taken off instead of the Monday, his normal day off. Busways did not make it clear to Mr Armstrong that the default position was that he could work the next day and therefore forfeit his day off. He was instead instructed by Mr Turner to stay at home the next day.

[72] The Union submitted that it must follow from the imposition of a penalty rate for DOCs that the intention of the parties in the making of the Enterprise Agreement was that if an employee is required to work on a DOC, then they would suffer some detriment - thus the additional pay. If the Commission finds that penalty rates were payable on 11 March 2013, then logically Mr Armstrong would have been required to work the next day. An instruction to stay at home does not eliminate Busways obligation to pay Mr Armstrong as he was a full-time employee.

[73] The Union further submitted that pursuant to s.578(b) of the Act, the Commission is required to perform its functions taking into account “equity, good conscience and the merits of the matter.” The Union asked the Commission to decide:

a) Whether Mr Armstrong was entitled to penalty rates in accordance with clause 18 of the Agreement for working on a DOC; and

b) Whether Mr Armstrong was entitled to payment for a day in which he was instructed to stay at home.

[74] In conclusion, the Union urged the Commission to find in favour of Mr Armstrong. Further equity dictates that Mr Armstrong should be treated no differently to other employees such as Mr Tsolakis.

Busways

[75] Shortly stated, Busways contended Mr Armstrong willingly agreed to swap his normal daily rostered shift on Tuesday, 12 March 2013 with a similar shift on Monday, 11 March 2013, which was normally his rostered day off. In support of that proposition, Busways submitted that with some three and a half years of service, Mr Armstrong knew the practice undertaken from time to time to cover shifts that were required to be filled so as to ensure operational efficiency.

[76] Busways submitted it relied on the evidence of Mr Turner in support of the contention that Mr Armstrong willingly agreed to cover the shift on 11 March 2013 in return for an alternate day off being the next day, 12 March 2013. In that regard this practice is supported by the Statement of Mr Tsolakis, dated 11 October 2013, an employee and Union member, who in recanting a similar circumstance to Mr Armstrong, stated the following in paragraph 8 of his Statement:

After I left, I read the Busways Group (Sydney) and the Transport Workers’ Union of Australia Fair Work Agreement. After reading the Agreement it became clear to me that Adam had no right to tell me to take the next day off in lieu. He can only authorize that with my consent and I certainly did not do that. 62

[77] Busways relied upon subclause 9(o) of the Enterprise Agreement which relevantly states:

Employees may be permitted to interchange work to meet their personal convenience, provided that such change is with the consent of the employer.

[78] In this particular regard, Busways sought to rely on the correspondence Mr Armstrong signed following his meeting with Messrs Kendall and Turner on 24 April 2013 which stated he was happy with the day off in lieu of his rostered day off, as evidence of Mr Armstrong’s consent to swap his shift.

[79] Further, Busways also relied on the evidence of Messrs Kendall, Verheyden, Rizzardo and Turner in support of the contention that Mr Armstrong accepted willing the request to work on his day off and to take an alternate day off the next day. Busways also relied upon their evidence to refute the evidence of Mr Armstrong and challenge the veracity of his statements.

[80] Busways contended Mr Armstrong changed his mind and decided to press his claim subject to these proceedings following discussions with the Union.

[81] Busways further submitted that notwithstanding any payment to Mr Armstrong for 11 March 2013, there was no obligation to pay an additional day’s wages for the rostered day off on 12 March 2013 as he was afforded at least 24 hours notice in accordance with subclause 9(q)(i) of the Enterprise Agreement which states:

The employer shall fix the starting and finishing time of each employee for each shift and also shall show all work to be performed during the shift and shall post rosters showing such times in a prominent place in the depot, but once fixed, the start and finish time shall not be altered unless at least three days’ notice (in the case of basic route rosters) or one days notice (in all other cases) has been posted in a prominent place in the depot for employees to see.

[82] Busways submitted that the circumstances of the flexible and agreed change of shift falls outside of clause 18 of the Enterprise Agreement and the required notice is 24 hours for such a roster change. Busways relied upon the approach to interpretation of an Enterprise Agreement taken by Senior Deputy President Kaufman in United Voice v. Schweppes Australia Pty Ltd 63 which also concerned a s.739 dispute relating to an Enterprise Agreement:

[37] Fair Work Australia is charged with the responsibility of settling disputes in relation to matters arising under the Agreement. In doing so it is not constrained to giving effect to the precise meaning of the clause, as would be a court dealing with an application for, say, interpretation, or enforcement, of the Agreement.

[38] Whilst, ordinarily, one would give effect to the clear meaning of the agreement in settling a dispute arising under it, that need not necessarily be the case.

[39] In this case, regard to equity, good conscience and the merits of the matter, compel me to the conclusion that, whatever be the true meaning of clause 48.1, Schweppes, having had regard to the spirit and intent of the clause, ought be permitted to retain and operate the security cameras. In any event, as I have indicated, in my view, clause 48.1, properly interpreted, does not preclude Schweppes from installing additional security cameras.

[83] Busways drew the Commission’s attention to a reference by Kaufman SDP to a decision of Lawler VP in Pulle v. Commonwealth of Australia 64 where his Honour considered the powers that could be exercised by the then Fair Work Australia with respect to settlement of disputes under dispute settling clauses in Enterprise Agreements:

I conclude that the powers available to me as a private arbitrator under a dispute resolution procedure in a certified agreement, when arbitrating a dispute that is within jurisdiction, are limited to the making of determinations that are substantially involved in or connected with the dispute in the sense of being rationally and reasonably adapted to resolving the dispute fairly and effectively. That is, in a manner that is consistent with ‘equity, good conscience and the merits of the matter’ (s.578(b). 65

[84] In conclusion, Busways submitted that consistent with s.578(b) of the Act, it would be unfair if Busways was required to pay Mr Armstrong time and one-half for working on 11 March 2013 and single time for his day off in lieu taken on 12 March 2013, a day which Mr Armstrong would not normally be paid, particularly in circumstances where Busways was required to allocate another driver to fill Mr Armstrong’s normal shift on 12 March 2013. Accordingly, the Commission should determine Mr Armstrong was entitled to single time only for working on 11 March and was not entitled to payment for the rostered day off taken on 12 March 2013.

Reply

[85] In reply, the Union drew the Commission’s attention to the decision of Kucks v. CSR Limited 66 where Madgwick J stated at [184]:

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

[86] In that regard, the Union submitted the Commission should give close consideration to the intent of the Enterprise Agreement and the notions underlying clause 18 that penalty payments apply as an incentive or reward for employees to work on their rostered day off. 67

Consideration and Findings

[87] Central to this particular dispute is a consideration of the obligations upon Busways that apply under the Enterprise Agreement in circumstances where an employee is required to work on his or her rostered day off. Specifically, the Commission is required to determine whether Busways has complied with its respective obligations under subclause (o) of clause 9, Hours of Employment which concerns 'shift swaps' to meet the personal convenience of the relevant employees subject to the consent of Busways and, subclause (b) of clause 18, Days Off which sets out the penalty rates that apply in circumstances where an employee works on a scheduled rostered day off.

Statutory Context

[88] The Commission's jurisdiction to determine disputes is contained in sections 738 and 739 of the Act:

s.738 Application of this Division

This Division applies if:

(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or

(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or

(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.

s739 Disputes dealt with by FWC

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

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

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

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

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

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

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

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

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

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

Approach to the Construction of Enterprise Agreements

[89] The general approach to the construction of enterprise agreements was considered by the Full Bench in Cape Australia Holdings Pty Ltd T/A Total Corrosion Control Pty Ltd v Construction, Forestry, Mining and Energy Union 68 The Full Bench made the following observations concerning the construction of enterprise agreements:

[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) 69 are opposite:

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) 70 (Burchett J); Australian Municipal, Clerical and Services union v Treasurer of the Commonwealth of Australia (1998)71 (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. 72 For example, similar observations were made by their Honours Gummow, Hayne and Heydon JJ in Amcor v CFMEU:73

“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 74 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned - see eg Geo A Bond and Co. Ltd (in liq) v McKenzie75 (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:76

“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.”

Relevant Enterprise Agreement Provisions

9. Hours of Employment

(o) Employees may be permitted to interchange work to meet their personal convenience, provided that such change is with the consent of the employer. (emphasis added)

18. Days Off

(a) All full time employees shall be allowed at least one day off in each week and shall not be worked on such day off, except in the case of an emergency.

(b) Where an employee is required to work on any day rostered off, time worked thereon shall stand alone and shall be paid for at the rate of double time if worked on a Sunday, or at the rate of time and three-quarters if worked on a Saturday, or at the rates of time an (sic) one-half if worked on any other day. (emphasis added)

(c) An employee required to work on any day rostered off shall be guaranteed and/or paid for not less than four hours work at the appropriate rate Monday to Saturday and for not less than five hours work at the appropriate rate on a Sunday.

(d) This clause shall override any application of clause 9 in this Agreement.

[90] It is clear from the authorities that the guiding principle to interpretation of an enterprise agreement must take into consideration the plain and ordinary meaning of the actual words used in the Enterprise Agreement.

[91] Clauses 9 and 18 are drafted in plain English. In my view, there is nothing controversial about the construction of these provisions. The plain and ordinary meaning of the words set out in subclause 18(b) make it clear that the Enterprise Agreement affords an employee who is required to work on his or her rostered day off penalty rates as prescribed in the subclause. That benefit must, of course been a clear intention of the parties when the Enterprise Agreement was made.

[92] The evidence in this matter was relatively straightforward and was by no means complex. At the outset, I agree with the evidence of Messrs Turner, 77 Verheyden78 and Kendall79 for Busways that subclause 9(o) of the Enterprise Agreement that deals with shift swaps between employees to meet their respective mutual convenience is irrelevant to the determination of this matter.

[93] The various accounts of what actually occurred on 11 March 2013 differ markedly and having considered all evidence before the Commission, it is not possible to accept one account without entirely rejecting the other.

[94] Where the evidence of Mr Armstrong and Mt Tsolakis conflicts with the evidence presented for Busways, I prefer the evidence of Mr Armstrong and Mt Tsolakis. Despite intensive cross-examination, Mr Armstrong provided a truthful account of what occurred on 11 March 2011.

[95] On the balance of probabilities, I am persuaded by the evidence of Mr Armstrong that he was unaware of the governing provisions of the Enterprise Agreement nor did he consent to taking 12 March 2013 off in lieu of working the previous day. He presented as a credible and competent witness. I also find on the balance of probabilities, that Mr Turner did not afford Mr Armstrong the opportunity to decide whether he would prefer to be paid penalty rates for working on his rostered day off consistent with the provisions of clause 18 of the Enterprise Agreement.

[96] Similarly, Mt Tsolakis provided an account of the various events that finally caused Busways to pay him penalty rates for working on his rostered day off scheduled on 12 March 2013 and, a full day's pay for the following day Mr Turner had previously told him to take off in lieu. Mr Tsolakis also presented as a competent and credible witness.

[97] Against that backdrop, the Commission makes the following findings in resolution of the dispute:

(i) I find that Busways did not act in accordance with clause 18 of the Enterprise Agreement. Accordingly, I have determined that Mr Armstrong should have been paid at the rate of time and one-half in accordance with the provisions of subclause 18(b) of the Enterprise Agreement for all hours worked on 11 March 2013.

(ii) The Enterprise Agreement did not afford Busways the opportunity to “stand-down” Mr Armstrong on 12 March 2013 without his express consent. Accordingly, it must follow that Busways is required to pay Mr Armstrong his normal rate of pay for 12 March 2013.

[98] I have considered the fairness and equity of this determination. In my view, it does no more than afford Mr Armstrong the benefits prescribed under clause 18 had they been complied with by Busways in March 2013 and is consistent with the intent of the Enterprise Agreement. It is also consistent with the importance accorded to the commitment of the parties to abide by the Enterprise Agreement, which of course is an enforceable industrial instrument. In that regard, it is the Commission’s view that the parties should know their respective responsibilities and obligations under the relevant enterprise agreement and not simply the benefits that are afforded to them.

[99] This particular dispute highlights the obligations upon bargaining representatives to ensure the enterprise agreement is distributed widely amongst both management and employees alike so that all parties clearly understand its terms and conditions.

COMMISSIONER

Appearances:

For the applicant, Mr T Warnes for the Transport Workers' Union of Australia-New South Wales Branch.

For the respondent, Mr I McDonald, Australian Public Transport Industrial Association for Busways Gosford North Pty Ltd trading as Busways Group

Hearing details:

2013

Newcastle

21 November

 1   [2013] FWCA 2849

 2   Exhibit #2 - Statement of Kevin Armstrong at para 6

 3   Ibid at para 7

 4   Ibid at para 10

 5   Ibid at para 12

 6   Ibid at para 13

 7   Ibid at para 14

 8   Transcript at PN40

 9   Ibid at PN44

 10   Ibid at PN46-48

 11   Ibid at PN68

 12   Ibid at PN73

 13   Ibid at PN104

 14   Ibid at PN120

 15   Ibid at PN122 & 123

 16   Ibid at PN129-131

 17   Exhibit #3 - Statement of Gregory Tsolakis at para 6

 18   Ibid at para 7

 19   Ibid at para 9

 20   Ibid at para 11

 21   Ibid at para 12

 22   Transcript at PN252

 23   Ibid at PN246

 24   Ibid at PN287-289

 25   Ibid at PN297

 26   Exhibit #5 - Statement of Adam Turner at para 3

 27   Ibid at para 4

 28   Ibid at para 5

 29   Ibid at para 7

 30   Annexure A to Exhibit #5

 31   Transcript at PN381

 32   Ibid at PN391

 33   Ibid at PN394

 34   Ibid at PN421

 35   Ibid at PN425-428

 36   Ibid at PN490-493

 37   Ibid at PN494

 38   Exhibit #7 - Statement of Marcel Verheyden at para 3

 39   Transcript PN 534

 40   Ibid PN538

 41   Ibid at PN544-546

 42   Ibid at PN577

 43   Ibid at PN590

 44   Ibid at PN593

 45   Exhibit #8 - Statement of Mark Rizzardo at para 2

 46   Ibid at para 3

 47   Transcript at PN658

 48   Exhibit #9 - Statement of Andrew Kendall at para 2 & 3

 49   Ibid at para 5-7

 50   Ibid at para 8

 51   Ibid at para 9

 52   Annexure A to Exhibit #9

 53   Transcript at PN679

 54   Ibid at PN683

 55   Ibid at PN689

 56   Ibid at PN690

 57   Ibid at PN717-718

 58   Ibid at PN726

 59   Ibid at PN768

 60   Ibid at PN769

 61   Exhibit #4 - Statutory Declaration of Andrew Dalglish

 62   Exhibit #3 - Statement of Gregory Tsolakis at para 8

 63   [2012] FWA 46

 64   [2011] FWA 7462

 65   Ibid at para [198]

 66 (1996) 66 IR 182 at [184]

 67   Ibid at PN858-859

 68   [2012] FWAFB 3994

 69 (2006) 153 IR 426 at [53]

 70 40 FCR 511 at 518

 71 80 IR 345

 72   See Swire Cold Storage Pty Ltd v TWU [2008] AIRCFB 397 at [29] and AMWU v Silcar Pty Ltd[2011] FWAFB 2555 at [11]

 73 (2005) 222 CLR 241 at [30]

 74 (1989) 30 IR 362 at 378-379

 75 [1929] AR (NSW) 498 at 503-504

 76 (1989) 30 IR 362 at 380

 77   Transcript at PN394

 78   Ibid at PN544-546

 79   Ibid at PN690

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