No judgment structure available for this case.

[2014] FWC 8234 [Note: An appeal pursuant to s.604 (C2014/8179) was lodged against this decision - refer to Full Bench decision dated 10 April 2015 [[2015] FWCFB 1868] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Transport Workers’ Union of Australia
v
ACT Government as represented by the Territory and Municipal Services Directorate T/A ACTION (Australian Capital Territory Internal Omnibus Network)
(C2014/5608)

DEPUTY PRESIDENT KOVACIC

MELBOURNE, 20 NOVEMBER 2014

Application to deal with a dispute.

[1] This matter concerns an application made by the Transport Workers’ Union of Australia (TWU - the Applicant) pursuant to s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute in relation to the ACTION Enterprise Agreement 2013-2017 1 (the 2013 Agreement) in accordance with the agreement’s dispute avoidance/settlement procedure.

[2] In its application, made on 29 July 2014, the TWU identified the issues in dispute as relating to driver breaks and whether the 2013 Agreement permitted the Australian Capital Territory (ACT) Government as represented by the Territory and Municipal Services Directorate T/A ACTION (Australian Capital Territory Internal Omnibus Network) ACTION - the Respondent) to increase the number of broken shifts in the ACT bus network without the TWU’s agreement. The dispute arose in the context of ACTION’s intention to introduce a new bus network, Network 14, on 1 September 2014.

[3] In dealing with the dispute, the Commission convened a number of conferences and also undertook an inspection at the request of the TWU. While some progress was made in those conferences and ensuing discussions between the parties, the dispute was not resolved. Against that background, the Commission was asked to determine the dispute in accordance with the 2013 Agreement’s dispute avoidance/settlement procedure.

[4] The dispute was heard on 9 September 2014. The issue of driver breaks was not pressed at that hearing and was the subject of a further conference at the conclusion of the hearing. Arising from that conference, the parties reached in-principle agreement with ACTION subsequently providing undertakings on the issues in dispute relating to driver breaks. Accordingly, the hearing on 9 September 2014 dealt solely with the issue of broken shifts.

[5] Mr Klaus Pinkas appeared for the TWU and Mr Max Kimber SC appeared with permission on behalf of ACTION. Messrs William Carters, Matthew Lewkowics, Nick Vardos and Dennis Wright all gave evidence on behalf of the TWU. Mr Ian McGlinn, ACTION’s Senior Manager - Network Planning and Business Development Public Transport, gave evidence on behalf of the Respondent.

[6] For the reasons outlined below, I find that the relevant provisions of the 2013 Agreement require agreement before ACTION can vary the number of broken shifts included in Network 14.

Background

[7] ACTION provides public transport bus services in the ACT and regularly reviews its bus network (the Network). Network 14 is the product of a review of its predecessor, Network 12. Such Network reviews consider a range of factors, including existing patronage, urban development and renewal, costing and resource availability and feedback from community and union consultation and engagement. Network 14 commenced on 1 September 2014. The roll out of Network 14 is characterised as a major change to the Network for the purposes of the 2013 Agreement. The Network can also be subject to minor changes to its operation. Such minor changes may be necessary to address issues, such as timetabling issues, which arise in the course of the Network’s operation.

[8] As noted above, the dispute concerns the number of broken shifts associated with the introduction of Network 14 which was originally scheduled to commence in late July 2014. Discussions between ACTION and the TWU regarding the issue occurred over several months commencing in May 2014 but did not result in agreement on the issue. On 16 July 2014, ACTION provided the TWU with a new set of shifts, advising that the shifts and Network 14 would commence on 1 September 2014 with or without the TWU’s agreement.

[9] Of particular concern to the TWU and its members is the increase in the number of full-time and part-time broken shifts associated with Network 14. The TWU submits that this contravenes the relevant provisions of 2013 Agreement which it contends require the TWU’s agreement to any increase in the number of broken shifts.

The Relevant Provisions of the 2013 Agreement

[10] Given that this dispute relates to various provisions of the 2013 Agreement, the relevant provisions are set out below in their entirety to provide context to the outline of the parties’ submissions and evidence. Clauses 19, 20, 21 and 27 (hereafter simply referred to as the relevant provisions) below are drawn from Schedule 2 of the Agreement.

“Section G - Communication and Consultation

G1 Consultation

G1.1 There should be effective consultation and employee participation in decisions that affect an employee’s employment. This is essential to the successful management of change.

G1.2 Where there are proposals by the ACTPS to introduce changes in the organisation or to existing work practices, the head of service will consult with affected employees and the union(s).

G1.3 The head of service will provide relevant information to assist the employees and the union(s) to understand the reasons for the proposed changes and the likely impact of these changes so that the employees and union(s) are able to contribute to the decision making process.

G1.4 For the purpose of providing effective consultation:

a) adequate time will be provided to employees and the union(s) to consult with the relevant Directorate;

b) DCC’s will be established, with membership to be agreed by the head of service and the union(s) following commencement of this Agreement; and

c) additional levels of consultation, such as a Workplace Consultative Committee (WCC), may be established with the agreement of the relevant DCC to operate at the local level. Where established these levels of consultation will deal with workplace specific issues before such issues may be raised with the DCC and have membership agreed by the DCC.

G1.5 A Directorate Consultative Committee will:

a) monitor the operation and implementation of this Agreement;

b) consider any proposed new or proposed significant changes to Directorate policy statements and guidelines that relate to the provisions of this Agreement; and

c) exchange information about workplace issues affecting employees; and

d) consult on any existing performance management schemes, and on the development of any new performance management schemes, in the Directorate;

e) meet at least quarterly, unless otherwise agreed; and

f) have terms of reference agreed to by the members of the DCC.

G1.6 The Chief Minister and Treasury Directorate will consult with the union(s) and employees prior to the finalisation of any significant changes or any new provisions in the PSM Act and the PSM Standards and any new service wide policy statements or guidelines that relate to the provisions of this Agreement.

Consultation on Changes to Regular Rosters or Ordinary Hours of Work

G1.7 Where the ACTPS proposes to introduce a change to the regular roster or ordinary hours of work of employees, the following will apply:

a) the head of service must notify the relevant employees of the proposed change;

b) the head of service must recognise the affected employee(s) union or other representative;

c) as soon as practicable after proposing to introduce the change, the head of service must:

i. discuss with the relevant employees the introduction of the change; and

ii. for the purposes of the discussion,-provide to the relevant employees:

all relevant information about the change, including the nature of the change; and

information about what the head of service reasonably believes will be the effects of the change on the employees; and

information about any other matters that the head of service reasonably believes are likely to affect the employees; and

iii. invite the relevant employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities).

G1.8 However, the head of service is not required to disclose confidential or commercially sensitive information to the relevant employees.

G1.9 The head of service must give prompt and genuine consideration to matters raised about the change by the relevant employees.

G1.10 These provisions are to be read in conjunction with other consultative obligations detailed in the Agreement.

Note: In this term “relevant employees” means the employees who may be affected by a change referred to in subclause G1.7.

G1.11 In addition, the employer undertakes that, for the purposes of subclause G1.2, the head of service will recognise and consult with the affected employee(s), their union or other representative.

G2 Dispute Avoidance/Settlement Procedures

G2.1 The objective of these procedures is the prevention and resolution of disputes about:

a) matters arising in the workplace, including disputes about the interpretation or implementation of the Agreement; and

b) the application of the National Employment Standards

...

G2.9 The FWC may deal with the dispute in two stages:

a) the FWC will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and

b) if the FWC is unable to resolve the dispute at this first stage, the FWC may then:

i. arbitrate the dispute; and
ii. make a determination that is binding on the parties.

G2.10 The FWC may exercise any powers it has under the FW Act as are necessary for the just resolution or determination of the dispute.

19. Full-time Broken Shifts

19.1 These will be of a duration of 8 hours with 24 minutes banked for rostered days off. Broken shifts will operate over a twelve hour spread, with a minimum break of two hours, finishing no later than 8pm. Full-time broken shifts will attract a 12.5% penalty for all rostered shift hours.

19.2 Broken shift time that accrues towards rostered days off will receive a 12.5% split penalty at the time the shift is performed. No penalty is payable when rostered days off are taken.

19.3 Full-time permanent ACTION employees employed as at 1 November 1998 will only be required to work full- time broken shifts on a voluntary basis.

19.4 The number of full-time broken shifts may vary by agreement from time to time according to the needs of the network.

20. Part-time Straight Shift Employees

20.1 Part-time employees may be employed to perform driving duties comprising of part-time straight shifts, comprising either one piece exclusive of meal breaks or two pieces with a minimum unpaid meal break of thirty minutes up to one hour exclusive of five minutes sign on/ sign off time.

20.2 Part-time straight shift employees shall be paid for a minimum of four hours per period of engagement. Only one rostered period of engagement may be entered into on any day.

20.3 The ordinary hours of work for part-time straight employees shall be based on 20 hours minimum per week and 30 hours maximum per week.

20.4 Part-time drivers shall be paid the same composite hourly wage as full- time employees of equivalent classification. Conditions of employment, as outlined in this Agreement, shall apply on a pro-rata basis.

20.5 Part-time shifts shall be non-rotating. Provisions in Section A – L as they relate to working a permanent night shift shall not apply to part-time shifts.

20.6 The number of part-time straight shifts may vary as agreed from time to time by the parties according to the needs of the network.

20.7 Part-time employees will accrue leave based on their rostered shifts.

21. Part-time Broken Shift Employees

21.1 Part-time broken shifts, will have a maximum span of twelve hours, with a finishing time no later than 8 pm.

21.2 Part-time broken shift employees shall be paid for a minimum of five hours and a maximum of six hours with a 12.5% penalty on the rostered shift hours only.

21.3 The ordinary hours of work for part-time broken shift employees shall be based on 25 hours minimum per week and 30 hours maximum per week.

21.4 Part-time broken shift drivers shall be paid the same composite hourly wage as full- time employees of equivalent classification. Conditions of employment, as outlined in this Agreement, shall apply on a pro-rata basis.

21.5 The number of part-time broken shifts may vary as agreed from time to time by the WSC according to the needs of the network.

21.6 Part-time broken shift employees will accrue leave based on their rostered shifts.

27. Shift Allocation Procedures

27.1.1 Shifts will be allocated in a manner which does not result in unlawful direct or indirect discrimination. The roster of shifts will be constructed based on ACTION’S operational requirements and incorporate standards that will be reviewed by the relevant WSC.

27.1.2 Shifts will be allocated having regard to the following principles:

(a) ACTION’S operational requirements;
(b) recognition of the continuous years of service and experience as an ACTION driver;
(c) the responsibilities of employees as primary care givers; and
(d) the objectives of this collective agreement and in particular the promotion of a balance between work and personal commitments.

27.1.3 Where disputes concerning the allocation of shifts arise the persons in dispute will attempt, in good faith, to resolve the dispute having regard to these principles.

27.1.4 In instances where issues regarding shift allocations cannot be resolved, the changes will be implemented and operate on an interim basis while the matter is processed through the Dispute Resolution Process.

The only exception to this is a harsh and unreasonable change that is confirmed by medical evidence to affect the health of the operator.

27.2 Major Changes to the Network

27.2.1 A network services Workplace Steering Committee (WSC) will assess changes to route services and timetables for annual and significant reviews of network services, as well as major service improvement programs, that may occur up to three times annually. Impact statements will be developed with regard to client service standards and staff conditions prior to implementation, including turnaround times and restart times.

27.2.2 Correct Timings will be ascertained and used in any future network changes.

27.2.3 Shift changes and spills resulting from major or significant changes to route services will be displayed for driver feedback for two weeks prior to shift allocation. Feedback will be documented and special shift allocation processes undertaken through the WSC. Final shifts will be allocated to drivers through the WSC within a two week period.

27.3 Minor Changes to the Network

27.3.1 It is recognised that minor changes sometimes need to be made after networks are introduced in order to provide better customer service. At least two days notice shall be given about minor shift changes.

27.3.2 New shifts shall be provided to the WSC within 2 days of printing, even if the implementation date has not been set. Unresolved minor shift changes will operate and be referred to the WSC for resolution.

27.3.3 The WSC will review shifts for compliance with this agreement, and consult with drivers and regional managers about any concerns they wish to raise on the impact of the proposed changes including:

(a) shift start/finish time - if changed by more than 10 minutes
(b) school runs - if not on shift when selected- 300 series runs - if not on shift
(c) when selected; and
(d) the bus allocated where possible

27.3.4 No change to allocated shift will reduce paid hours. Hours will only be reduced if a shift is vacant or at the time of the shift spill.

27.3.5 If agreement is not reached in regard to a change the dispute resolution process will be followed in accordance with Clause 27.1.4 of this Schedule.” [Underlining added]

The Applicant’s Submissions

[11] The TWU submitted that the increase in the number of broken shifts, both full-time and part-time, under Network 14 is contrary to clauses 19.4 and 21.5 of the 2013 Agreement for several reasons, including its effect on drivers and because the changes do not reflect the needs of the Network. By way of background, the number of full-time broken shifts increased from 105 to 126 and the number of part-time broken shifts increased from 95 to 113 under Network 14 2.

[12] The TWU further submitted that while ACTION may vary the number of broken shifts in accordance with the needs of the Network, it may only do so with the TWU’s agreement as per clauses 19.4 and 21.5 of the 2013 Agreement.

[13] In support of that view, the TWU outlined the history of the relevant provisions, submitting that clause 19.6 of the Action (Enterprise Bargaining) Agreement 1998-2001 3 (the 1998 Agreement - see paragraph [39] below) allowed the parties to vary the number of broken shifts by agreement according to the needs of the Network. Further, clause 19.4 of the 2013 Agreement is in substantially the same form as clause 19.6 of the 1998 Agreement. The TWU further contended that clause 19.6 of the 1998 Agreement was originally negotiated in circumstances where the Respondent sought to introduce broken shifts and was intended to provide a mechanism to prevent the erosion of the number of full-time shifts offered to employees and their replacement with broken shifts.

[14] As to the needs of the Network, the TWU contended that the current Network requirements of the Respondent were not sufficient to give rise to the increase in the number of full-time broken shifts.

[15] In short, the TWU characterised its argument as being that the plain meaning of clause 19.4 of the 2013 Agreement is that “by agreement” means by agreement, this being consistent with the intent of the drafters of the equivalent provision in the 1998 Agreement 4.

[16] As to the Respondent’s submissions regarding clause 27.2 of the 2013 Agreement, the TWU indicated that it agreed with ACTION’s submissions regarding the provision but argued that the provision was part of the process of developing a Network along with other clauses in the 2013 Agreement 5. Specifically, the TWU submitted that clauses 19, 20 and 21 of the 2013 Agreement should be read in conjunction with clause 27.2 of the agreement rather than separately from that provision6.

[17] The TWU sought an order which prohibited ACTION from increasing the number of broken shifts until agreement was reached on the issue.

The Applicant’s Evidence

[18] As previously alluded to, Messrs Carters, Lewkowics, Vardos and Wright all gave evidence on behalf of the TWU. Their witness statements were not challenged and accordingly none of the witnesses were cross examined.

[19] In their witness statements, Mr Carters 7 and Mr Wright8 both attested that they were members of the TWU negotiating team which negotiated the 1998 Agreement. They further attested that:

(a) the TWU’s intention was for clause 19.4 of the 1998 Agreement to initially limit the number of full-time broken shifts to 89 and they understood this to be ACTION’s intention as well;

(b) similarly, the TWU’s intention was for clause 19.6 of the 1998 Agreement to allow for an increase in the number of broken shifts only when both parties agreed to do so and, again, they understood this to be ACTION’s intention as well; and

(c) the TWU’s intention was for clauses 19.4 and 19.6 of the 1998 Agreement to maintain a minimum number of unbroken shifts by requiring agreement in circumstances where ACTION sought to replace unbroken shifts with broken shifts.

[20] Beyond this, Mr Wright also attested that the words “according to the needs of the network”, which were included in clause 19.6 of the 1998 Agreement, were inserted to deal with those circumstances where there was an increase in services in a Network. Further, it was the TWU’s intention that these words not be used to replace straight or unbroken shifts with broken shifts and that he understood this to also be ACTION’s intention.

[21] Mr Lewkowics 9 and Mr Vardos10 both attested in their witness statements that because of the reduction in the number of straight shifts in Network 14, neither was allocated a straight shift through the shift allocation process. Further, the broken shifts each were allocated will result in a considerable reduction in their pay and would also impact negatively on their ability to spend time with their respective families.

The Respondent’s Submissions

[22] ACTION’s submissions focussed heavily on clause 27 of the 2013 Agreement. Specifically, ACTION contended that clause 27.2 of the 2013 Agreement should be regarded as a specific/purpose built consultation provision which applies in respect of major changes to the Network 11. It was further contended that clause 27.2 does not countenance changes to shifts only being implemented if the TWU agrees with the proposed changes and, unlike clauses 19.4, 20.6, 21.5, 27.1.4, 27.3.2 and 27.3.5 of the agreement, does not countenance agreement or resort to the agreement’s dispute resolution process12.

[23] It was further contended by ACTION that if agreement was a prerequisite to major changes to the Network being introduced this would have been reflected in the ACTION Union Collective Agreement 2007-2010 13 (the 2007 Agreement) when the major changes to the Network component of clause 27 was first introduced14. ACTION also submitted that the absence of any reference to dispute resolution in the major changes to the Network component of clause 27 was deliberate and was a distinguishing factor between the major and minor changes to the Network provisions of the clause15.

[24] In response to questions from the Commission, ACTION submitted that clause 27.2 of the 2013 Agreement is not limited to the shift allocation procedure 16.

[25] ACTION also submitted that clauses 19, 20 and 21 of the 2013 Agreement only operate in respect of changes in the context of an existing Network, i.e. the Network in place at the time an enterprise agreement commenced operation, and not in circumstances where major changes to the Network are proposed during the operation of an agreement. As such, ACTION contended that these provisions only have work to do in respect of minor changes to the Network 17.

[26] Against that background, ACTION contended that the Commission had no jurisdiction to consider or rule on the merit of the specific shift changes associated with the introduction of Network 14.

[27] Beyond this, ACTION outlined the major changes to the Network which had occurred since 1998. In doing so, it acknowledged that on each occasion prior to the introduction of Network 14 it had been able to secure the TWU’s agreement to the proposed shift changes associated with the new Network 18.

[28] In response to the TWU’s submission that agreement was a necessary prerequisite, ACTION submitted that such an approach “defeats the whole purpose of consultation provisions in enterprise agreements which are a recognition of a deference to managerial prerogative with respect to major change.” 19

[29] ACTION also outlined in its submissions the evolution of the relevant provisions, focusing on the period since 2004.

The Respondent’s Evidence

[30] Mr McGlinn gave evidence on behalf of ACTION. In his witness statement 20, Mr McGlinn, inter alia,outlined the steps and considerations involved in starting a new Network. In respect of Network 14, Mr McGlinn attested that it involved an increase of 300 individual services, bringing the total number of services to 3,400 per day. Further, Network 14 was designed to operate within ACTION’s existing budget and vehicle constraints and involved the employment of an additional 29 part-time drivers to cover the increased level of service.

[31] Key aspects of Mr McGlinn’s evidence under cross examination were that:

there is a finite step between the development of the Network and the development of shifts 21;

resource availability is taken into account at every stage of the development of the Network 22;

clauses 18, 19.1, 20.2 and 27.2 of the 2013 Agreement, among other clauses, were all within the parameters of the shift build for Network 14 23;

in building a new Network, ACTION tries to work with the TWU and get its agreement 24;

with regard to Network 14, ACTION met with the TWU at least ten times but, unlike in the past, was ultimately unable to reach agreement with the TWU 25;

Network 14 involves 1031 services (including school services) being delivered in the morning peak period, compared to 885 services under Network 12, and 1180 in the evening peak period, compared 1050 under Network 12 26;

the increase in these peak period services necessitated an increase in the number of broken shifts 27; and

a spill of shifts, where drivers forego the shift they previously “owned” and are allocated new shifts through a seniority order which takes into account drivers’ preferences, is the mark of a new Network 28.

Consideration of the issues

[32] The dispute requires the Commission to interpret the relevant provisions of the 2013 Agreement to determine whether or not they require the agreement of the TWU before ACTION can increase the number of broken shifts when compared to the predecessor Network.

[33] On the issue of interpretation of industrial instruments, the TWU relied on a number of authorities which deal with the issue, including Kucks v CSR Limited 29and Short v F W Hercus Pty Limited30. ACTION relied on Transport Workers’ Union of Australia v Linfox Australia Pty Ltd31, adding that “the parties were at one about the principles” of interpretation32. ACTION also relied on the following two related authorities which deal with the issue of consultation - Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Others v QR Ltd33 and QR Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia34.

[34] The approach to the interpretation and construction of enterprise agreements was considered by a Full Bench in DP World Brisbane Pty Ltd v The Maritime Union of Australia 35 where the Full Bench reviewed the authorities as follows:

“[28] The task of construing an expression in an enterprise agreement (such as the expression ‘subject to any appeal rights’ in clause 24.1.1(e)) begins with a consideration of the ordinary meaning of the words having regard to their context and purpose. As Gleeson CJ and McHugh J observed in Amcor Limited v CFMEU:

‘The resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose ...’

[29] Context may appear from the text of the agreement taken as a whole, its arrangement and the place in it of the provision under construction. The legislative context against which the agreement was made and in which it was to operate is also a relevant contextual consideration.

[30] The task is to identify the common intention of the parties as expressed in the terms of their agreement, the subjective intentions or expectations of the parties are irrelevant. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd the High Court described the task, in the context of commercial contracts, as follows:

‘It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.’

[31] Importantly, the task of interpreting an enterprise agreement does not involve re-writing a provision in order to give effect to the Commission’s view of what would be fair and just, without regard to the terms of the agreement. As Madgwick J observed in Kucks v CSR Limited:

‘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.’

[32] The Acts Interpretation Act1901 (Cth) may also be applicable to the construction of agreements approved under Division 4 of Part 2-4 of the Act, as if the agreement were an act. This may be so because of the operation of s.46 of the Acts Interpretation Act 1901 (Cth) …

[36] A consequence of the application of the Acts Interpretation Act 1901 (Cth) to enterprise agreements would be that extrinsic materials may be used as an aid to construction, as provided for in s.15AB of that act.

[37] While the parties before us accepted that the Acts Interpretation Act 1901 (Cth) applied to enterprise agreements, it is unnecessary for us to decide this issue because in the circumstances of this case there is no relevant extrinsic material as to the parties’ mutual intentions in respect of clause 24.1.1(e).” [Citations not included]

[35] More recently a Full Bench of the Commission in DP World Brisbane Pty Ltd and DP World (Fremantle) Limited and Others v Maritime Union of Australia, The 36 (DP World) set out the key elements which can be distilled from these authorities in the following terms:

“[34] The key elements which can be distilled from the above authorities regarding the construction or interpretation of agreements are:

(i) the construction task begins with considering the ordinary meaning of the words having regard to their context and purpose - ordinary or well-understood words should generally be accorded their ordinary or usual meaning;
(ii) where the language is ambiguous or open to differing interpretations it is permissible to have regard to surrounding circumstances or context to assist in the interpretation of an agreement;
(iii) regard should not be had to the subjective beliefs or understandings of the parties about their rights and liabilities;.
(iv) the meaning of the provision is to be determined with regard to what a reasonable person would have understood it to mean, with this usually requiring consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction; and
(v) a court or tribunal 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 industrial instrument.”

[36] Clearly in this case, the parties have differing interpretations of the relevant provisions of the 2013 Agreement. Accordingly, it is appropriate to follow the key elements set out in DP World in interpreting those provisions.

[37] On their face, clauses 19.4 and 21.6 of the 2013 Agreement are clear that agreement is required before ACTION can vary the number of broken shifts. Similarly, on its face, clause 27 of the 2013 Agreement appears to deal primarily with the shift allocation procedure once Network changes are settled. Further, based on an examination of the provisions, it is clear that there is no cross referencing between these provisions.

[38] To assist in clarifying whether clauses 19, 20, 21 and 27 of the 2013 Agreement operate in tandem (as submitted by the TWU) or whether clause 27.2 solely governs major changes to the Network (as advocated by ACTION), it is appropriate to consider the evolution of the relevant provisions as part of the surrounding circumstances and context to the development of the provisions in the 2013 Agreement. For reasons of brevity, the relevant provisions relating to part-time broken shifts are not set out below.

[39] I start with the 1998 Agreement which provided:

“Clause 19 - Full time broken shifts

19.1 It is agreed to implement full time broken shifts. These will be of a duration of 8 hours with 24 minutes banked for leisure leave. Shifts will operate over a twelve hour spread, with a minimum break of two hours, finishing no later than 8pm. Full time broken shifts will attract a 12.5% penalty for all rostered shift hours.

19.2 Leisure leave will be paid inclusive of the 12.5% penalty.

19.3 Full time permanent ACTION employees employed as at 1 November 1998 will only be required to work full time broken shifts on a voluntary basis.

19.4 The number of drivers required to work full time broken shifts in the new ACTION Network to be introduced in January 1999 is 89.

19.5 These shifts will be offered firstly to full time permanent ACTION employees on a voluntary basis. They may then be offered to current multiskilled driver/mechanics and special needs transport (SNT) drivers, then other ACTION staff including current contract drivers.

19.6 The number of full time broken shifts may vary as agreed from time to time by the parties according to the needs of the network. In the event of disagreement the matter shall be referred to the AIRC for determination.

Clause 30 - Shift Allocation

30.1 Shifts will be displayed on notice boards for three weeks and allocated in three weeks or less by staff representatives using pre-determined appointment times and the seniority list.

30.2 The objective in any shift spill is that the relevant network is able to be implemented six weeks after shifts are made available for display to drivers. This six week period includes display, selection, allocation and rostering.

30.3 It is recognised by the parties that minor changes sometimes need to be made after networks are introduced in order to provide better customer service. The process to be followed in the event of such shift changes will be as defined by the AIRC hearing in September 1996, which is detailed in clauses 30.4 to 30.9.

30.4 As much notice as possible shall be given of shift changes. New shifts shall be provided to delegates within 2 days of printing, even if the implementation date has not been set.

30.5 Delegates will review shifts for compliance with the award and this agreement, and consult with drivers and regional managers about any concerns they wish to raise.

30.6 Concerns of drivers will be addressed if possible, but these will be limited to:
- shift start/finish time - if changed by more than 10 minutes
- school runs - if not on shift when selected
- 300 series runs - if not on shift when selected.

30.7 No change to the allocated shift will reduce the paid hours. Hours will only be reduced if a shift is vacant or at the time of a shift spill.

30.8 If agreement is not reached in regard to a change the dispute resolution process will be followed and this may include conciliation by an AIRC Board of reference.

30.9 Changed shifts will be operated on an interim basis until the dispute is resolved. The only exception to this is a harsh and unreasonable change that is confirmed by medical evidence to affect the health of the operator.

30.10 There will be a secret ballot no later than six months after registration of this agreement regarding proposals for a revised method of shift allocation. The proposals to be put to this ballot will be agreed between those parties directly affected beforehand. Only employees directly affected will be eligible to vote in the ballot.”

[40] The Action (Enterprise Bargaining) Agreement 2002 37 (the 2002 Agreement) provided:

“Clause 19 - Full time broken shifts

19.1 It is agreed to implement full time broken shifts. These will be of a duration of 8 hours with 24 minutes banked for leisure leave. Shifts will operate over a twelve hour spread, with a minimum break of two hours, finishing no later than 8pm. Full time broken shifts will attract a 12.5% penalty for all rostered shift hours.

19.2 Leisure leave will be paid inclusive of the 12.5% penalty.

19.3 Full time permanent ACTION employees employed as at 1 November 1998 will only be required to work full time broken shifts on a voluntary basis.

19.4 The number of drivers required to work full time broken shifts in the new ACTION Network is 89.