Transport Workers' Union of Australia v dnata Airport Services Australia t/a dnata Airport Services Australia Pty Ltd

[2020] FWC 6720

[2020] FWC 6720

FAIR WORK COMMISSION

DECISION

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

Transport Workers' Union of Australia
v
dnata Airport Services Australia t/a dnata Airport Services Australia Pty Ltd
(C2020/6406)

Airline operations
DEPUTY PRESIDENT SAMS	SYDNEY, 17 DECEMBER 2020

Application to have the Commission deal with a dispute under the dispute settlement procedure (‘DSP’) of an agreement – airport ramp and ground handling services – part time employees who volunteer to work additional hours or shifts – difference between volunteering for overtime work and being directed to work overtime – principles of agreement construction – Berri Principles – words have plain, ordinary meaning – words to be read in context of the clause in which they appear and context and purpose of the Agreement as a whole – surrounding circumstances – custom and practice – words not ambiguous, uncertain or susceptible to more than one meaning – distinction between employee changing a shift of own volition and being required or directed to work overtime in excess of certain hours –– 10% loading only payable in the latter circumstances – dispute determined and resolved.

BACKGROUND

[1] On 19 August 2020, the Transport Workers’ Union of Australia (NSW Branch) (the ‘TWU’ or the ‘Union’) filed an application, pursuant to s 739 of the Fair Work Act 2009 (the ‘Act’) seeking to have the Fair Work Commission (the ‘Commission’) deal with a dispute in accordance with the dispute settlement procedure in the dnata Airport Service Ramp & Cargo Enterprise Agreement 2018 (the ‘2018 Agreement’) and its predecessor, the 2015 Agreement of the same name (together, the ‘Agreements’). The dispute is with dnata Airport Services Pty Ltd t/a dnata (‘dnata’ or the ‘respondent’). dnata is engaged in the provision of ground handling services for airports across Australia.

[2] Shortly stated, the dispute concerns a Union claim made by one of its members, Mr Gary Robinson, who as a part time employee, has worked outside of his normal hours as overtime, but was not paid a 10% loading and meal allowance for doing so. Mr Robinson claims he was underpaid an amount of $11,469.92 for such overtime during 2016-18 and $2,462.01 for such overtime during 2018-20.

[3] dnata agrees that when an employee is directed or requested to work additional hours on shift or additional shifts, the 10% payment is payable in accordance with the Agreements’ overtime provisions. However, when an employee at their own volition, elects to work additional hours, such as picking up a vacant shift or swapping a shift, the 10% overtime payment is payable at the ordinary loaded rate of pay.

[4] It may be accepted that this case, through Mr Robinson’s example, may have wider ramifications than his specific circumstances and claims. It is common ground that the Commission has the power to determine the dispute, at least in respect to the 2018 Agreement. For reasons which follow, the recent narrowing of issues in dispute means no jurisdictional issue was required to be determined about the application being relevant to the 2015 Agreement.

[5] In accordance with my usual practice, I convened a conciliation conference of the parties on 4 September 2020. The dispute was unable to be resolved and directions were issued for a hearing at the TWU’s request for a determination that Mr Robinson was entitled to receive a 10% loading for all hours worked as overtime according to the relevant clauses in the Agreements. The parties disagreed as to the questions to be answered in this case, which I will come to later.

[6] Statement evidence was tendered from Mr Gary Robinson, Part Time Baggage Handler, and Mr Samuel Maybury, HR Business Partner (Sydney Port). Neither witnesses were required for cross examination.

[7] At the hearing on 28 October 2020, Mr B Rauf of Counsel with Ms J Phillips appeared for dnata and Ms A Owens-Strauss appeared for the Union, with the respondent being granted permission to be represented by a lawyer pursuant to s 596 of the Act.

Relevant clauses in the Agreements

The 2015 Agreement

[8] Clause 16 deals with rostering and sub-Cl 16.7 is relevant:

‘16.7 Without limiting clause 16.6, Employees will not be entitled to receive any overtime payments or meal allowances for any shift where Employees have changed shifts through shift swaps or any other means outside the immediate control of the Company and of their own volition, where their original shift would not have attracted such payments.’

[9] Overtime is found at Cl 21 and Cl 21.7(c) is also relevant:

‘21.7 A meal allowance and a paid meal break will be provided for any period of overtime in any one shift as follows:

…

(c) the meal allowance will be paid at the rate prescribed in the Award’.

[10] Clause 21.4 reads:

‘21.4 If an Employee is required to work overtime, they will be entitled to be paid for any overtime hours at the appropriate hourly rate set out in clause 18.2, plus an overtime loading of 10%.’

[11] Clause 21.8 is consistent with Cl 16.7 and reads:

‘21.8 An Employee will not be entitled to be paid the overtime loading referred to in clause 20.4 or to receive the meal allowance in clause 20.7 if the Employee comes to work overtime as a result of swapping a shift or shifts with another Employee and not as a result of being requested by the Company to work the overtime.’

The 2018 Agreement

[12] It is common ground that the 2018 Agreement totally restructured the 2015 Agreement in that it moved from a ‘loaded rate’ and pay structure to a base plus penalty rate structure for all new employees.

[13] Minimum hours and opportunities for part time employees to pick up more hours if they wish are found at Cl 2.3:

‘2.3 Part Time Employees

(a) A part time employee will be rostered to work a minimum of 24 hours per week and less than 152 hours per week per 4 week cycle.

(b) dnata will use all reasonable endeavours to ensure that all available part time hours, and additional available part time hours, are equitably and transparently distributed between part time employees.

(c) Unless otherwise stated, a part time employee will receive on a pro rata basis equivalent pay and conditions to full time employees who perform the same work.

(d) Where an employee seeks to work less than their rostered hours in week they must receive approval from dnata to swap or give-away their shift to another employee of the same status, classification and experience. Where the employee is not able to swap or give away their shift they can make a request to dnata for annual leave or unpaid leave.’

[14] Rostering is found in the Hours of Work clause and sub-ss (e)–(h) in Cl 5.1 are relevant:

‘5.1 Rostering

…

Shift Changes

(e) Where dnata initiates a change to an employee’s shift, the employee must be given at least 48 hours notice of the change. If 48 hours notice is not given, the employee must be paid for the shifts worked during the 48 hour period at the rate of double time.

Shift Extensions

(f) Where a part time employee agrees, once they have attended work, to extend a shift, double time (clause 5.1(e)) or overtime will not apply until or unless the employee works more than 8 hours on that shift.

Shift Pick-Up

(g) Where a part time employee elects but is not required to pick-up a shift, double time (clause 5.1(e)) or overtime will not apply unless the picked up shift results in the part time employee working more than 8 hours in a day, more than 38 hours in a week or more than 5 shifts in a working week.

Shift Swap and Shift Give-Away

(h) An employee will not be entitled to receive double time (clause 5.1(e)) or any overtime payments or meal allowances for any shift where the employee has changed shifts through shift swaps, shift give-away or any other means outside the immediate control of dnata and of their own volition, where their original shift would not have attracted such payments.’

[15] The overtime clause is found at Cl 5.5 and reads:

‘5.5 Overtime

(a) dnata may request employees to work reasonable overtime. For the purpose of this Enterprise Agreement, overtime refers to:

(i) A full time employee working outside their rostered hours; or

(ii) A part time employee working more than 8 hours in a day, more than 38 hours in a week or more than 5 shifts in a working week.

(b) Overtime will be paid at double time.

(c) dnata’s intention is to minimise the extent to which any employee is requested to work overtime.

(d) dnata will use all reasonable endeavours to ensure that available overtime is equitably and transparently distributed between employees, with full time and part time employees having precedence for overtime over casual employees and labour hire workers.

(e) Employees may be required to respond to call-ins for unforeseen circumstances. dnata will establish a voluntary availability roster for the purpose of ensuring that there is a quick response time to call-ins. If an employee is required by dnata to work a call-in after leaving work following a shift or on a day off, the employee must be paid for a minimum of 4 hours at double time.

(f) A meal allowance and a paid meal break will be provided for any period of overtime in any one shift in accordance with clause 4.5(o) herein.

(g) An employee will not be entitled to be paid an overtime loading or receive the meal allowance if the employee comes to work overtime as a result of swapping a shift or shifts with another employee and not as a result of being requested by dnata to work the overtime.’

[16] The undertaking in Cl 5.5(a) is also relevant and reads:

‘5.5(a) dnata may request employees to work reasonable overtime. For the purpose of this Enterprise Agreement, overtime refers to:

(i) A full time employee working outside their rostered hours; or

(ii) A part time employee working in excess of rostered daily hours (excluding where at least 48 hours notice is provided as outlined in shift changes clause 5.1(e)), more than 8 hours in a day, more than 38 hours in a week or more than 5 shifts in a working week.’

THE EVIDENCE

Mr Gary Robinson

[17] Mr Robinson has worked for dnata since 16 August 2016 as a part time baggage handler. He is currently a ‘loaded rate’ employee under the 2018 Agreement. As a shift worker he works between 24 and 60 hours a week, with a roster posted 28 days in advance.

[18] Mr Robinson understood from the 2015 Agreement, that any hours worked in excess of 10 hours a day, 40 hours a week or outside his rostered hours were regarded as overtime and recorded as such on his payslips. He further understood that for any such overtime hours he was entitled to a 10% loading and meal allowance, unless he swapped shifts and dnata had not requested, through his supervisor, to work the overtime. He was not aware of any other way he could work overtime.

[19] Similarly, Mr Robinson understood that under the 2018 Agreement, any hours in excess of 8 hours a day, 38 hours a week or more than 5 shifts a week were overtime hours with a 10% loading and meal allowance, unless he swapped shifts and dnata has not requested he work the extra hours.

[20] Mr Robinson said he has swapped shifts about 20 times during his employment and the process is:

‘a. the employees swapping shifts are to complete the ‘Swap Shifts’ form by filling in the dates and the start and finish times of the proposed swap shifts;

b. both employees sign the bottom of the ‘Swap Shifts’ form;

c. the hard copy of ‘Swap Shifts’ form is given to a supervisor or duty manager to sign/approve and record the swap shift.’

[21] Mr Robinson said he is regularly asked by supervisors to pick up additional shifts outside his rostered hours and he mostly agrees. He assumed he is paid the 10% loading and meal allowance because he has been requested by dnata, rather than swapping a shift directly with another employee. When he works an additional shift, he is required to fill in a Variation Sheet to record the shift as a ‘pick up’ shift.

[22] It was Mr Robinson’s evidence that after a couple of months of working for dnata, he noticed his payslips referred to ‘overtime’ hours, but the rate paid was ordinary time, even though he had been accepting shifts after a supervisor asked him to work. He raised this with his supervisor and escalated it to his Manager and the payroll team. In November 2017, he was told he would only receive overtime if dnata had requested him to work as an operational requirement. He was told he was not entitled to any loading in accordance with the modern award, even though he was covered by the 2015 Agreement. Mr Robinson said that in a meeting with Mr Maybury, he was told that he had been paid correctly under Cl 16.7 of the 2015 Agreement. He claimed Mr Maybury had said words to the effect of:

‘As you said “yes” to those shifts, you volunteered and, therefore, are not entitled to the 10% loading or meal allowance”.’

[23] Mr Robinson said the same situation continued under the 2018 Agreement. He has raised his concerns with management numerous times since August 2018. The TWU raised similar concerns on behalf of employees regarding the non-payment of overtime on 22 March 2019. Mr Maybury has required proof that he had not volunteered to work the hours claimed.

Mr Samuel Maybury

[24] Mr Maybury said that dnata has approximately 1800 employees throughout Australia with 850 employees covered by the 2018 Agreement. The Company has three categories of services at Sydney:

‘(a) passenger services – these services relate to ‘above wing’ services such as checking in customers, welcoming customers at the gate and on-boarding;

(b) ramp and baggage services – these services relate to ‘below wing’ services such as receiving bags and load / off-loading them from the aircraft, pushing back aircrafts from the gate and moving cargo on / off aircrafts to cargo business; and

(c) cargo services – these services relate to moving in-bound and out-bound cargo from freight forwarders to aircrafts and warehouses located at the Sydney Airport and at Matraville.’

[25] Mr Maybury said that at Sydney Airport there are peaks in arrivals and departures between 8-10am and 5-7pm and regular flight schedule changes at short notice. This means the workforce must be able to work as shift workers and have flexible rosters and work shifts to meet operational requirements. To this end, there is an agreement with the Unions that casual employees would only supplement the permanent workforce and permanent employment is preferred over casual employment and labour hire.

[26] Mr Maybury said that the predominantly part time workforce has:

‘(a) an agreed minimum number of ordinary hours per week, which has been 24 hours under the 2015 Agreement and 2018 Agreement;

(b) a system in place whereby part-time employees have the opportunity to work additional hours and shifts through a number of different situations with preference given to them to work the additional hours. This system allows part-time employees to increase earnings without the company incurring additional costs; and

(c) part-time employees have first preference on available shifts over casual and labour hire employees.’

[27] It was Mr Maybury’s evidence that this has been custom and practice since the 2015 Agreement and carried over to the 2018 Agreement (Cl 16.7). Mr Maybury referred to Cl 5.1(g) of the 2015 Agreement which stated:

‘(a) where a part-time employee, at their own volition, elected to work an additional shift that it would be processed at the ordinary (loaded) rate of pay; and

(b) where a part-time employee, at dnata’s direction, is required to work an additional shift because the shift could not be filled voluntarily that it would be processed at the overtime rate of pay (i.e. the ordinary (loaded) rate of pay + 10% loading).’

[28] Mr Maybury said the custom and practice is essentially the difference between being required to work an additional shift and the employee electing to do so at their own volition. This interpretation has been historically accepted by the TWU.

[29] Mr Maybury said that this custom and practice was reinforced during bargaining for the 2018 Agreement which resulted in:

‘(a) the total restructuring of the 2018 Agreement to move from a loaded rate of pay structure to a base rate of pay plus penalty rate structure for all new Employees recruited under the new Agreement (as requested by the TWU);

(b) the maintenance of existing conditions and practices for its existing loaded rate workforce (or the opportunity to move to a base plus penalty rate structure); and

(c) the inclusion of new provisions (clauses 5.1(e)-(h) of the 2018 Agreement) confirming the flexibilities for dnata and part-time employees to work additional shifts and hours and change shifts with other employees.’

[30] The 2018 Agreement commenced on 7 August 2018 and remains in force. It replaced the 2015 Agreement. Prior to the COVID-19 pandemic, dnata published rosters 28 days in advance. However, since late March 2020, and the significant disruption to air services, it was agreed to publish weekly rosters on the previous Friday.

[31] Mr Maybury described a number of different scenarios covered by the 2018 Agreement clauses where rosters and hours may change:

‘(a) Shift Changes – the employee’s rostered hours may change by dnata:

(i) providing the required minimum notice period of the change; or

(ii) because of exceptional circumstances beyond dnata’s control such as airlines notifying dnata of flight changes less than the required minimum notice period;

(b) Shift Extensions - the employee agreeing to work additional hours either immediately before the start of, of following the end of, their rostered shift;

(c) Shift Pick-Up – the employee agreeing to work an additional shift outside their rostered shifts either:

(i) after the employee being asked by dnata if they want to pick-up the shift and the employee electing to accept the additional shift offered; or

(ii) after the employee asking dnata that they want to work an additional shift that is available. These additional shifts are highlighted yellow in the roster sent to all employees and in the supervisor/manager’s daily worksheet;

(d) Shift Swaps – the employee agreeing with another employee to swap their rostered shifts;

(e) Shift Give-Aways – the employee agreeing with another employee to work that employee’s rostered shift; and

(f) Call-Ins – the employee being directed by dnata to work an additional shift outside their rostered shifts.’

[32] Mr Maybury set out a table reflecting when overtime and overtime loading apply:

Situation		Clauses of 2018 Agreement	Minimum notice period for shift change	Over 8 hours per shift, 38 hours or 5 shifts per week	Overtime hours	Overtime loading
1	Shift Change (non- exceptional)	5.1(e)	Yes	No	No	No
2			No	No	Yes	Yes
3	Shift Change (exceptional)	5.1(e)	Yes	No	No	No
4			No	No	Yes	No
5	Shift Extensions	5.1(f)	N/A	No	Yes	No
6		5.1(f), 5.5(a)(ii)- (b)	N/A	Yes	Yes	Yes
7	Shift Pick- Ups	5.1(g)	N/A	No	Yes	No
8		5.1(g), 5.5(a)(ii)- (b)	N/A	Yes	Yes	Yes
9	Shift Swaps	5.1(h), 5.5(g)	N/A	No	No	No
10			N/A	Yes	Yes	No
11	Shift Give- Aways	5.1(h), 5.5(g)	N/A	No	No	No
12			N/A	Yes	Yes	No
13	Call-Ins	5.5(a)(ii)- (b)	N/A	No	Yes	Yes
14			N/A	Yes	Yes	Yes

[33] Mr Maybury said that based on the information provided by Mr Robinson to date, dnata believes that he has been paid in accordance with the relevant provisions of the 2018 Agreement. To demonstrate this, he provided details of Mr Robinson’s claims and responses for 7 weeks from weeks ending 6 January 2019 – 4 August 2019.

SUBMISSIONS

[34] Both parties relied on their written submissions which were supplemented orally as follows.

Submissions for the TWU

[35] In opening the Union’s case, Ms Owens-Strauss said that as a result of the parties’ discussions about the dispute, it is now accepted that the shift swap issue had been resolved and this question was the issue under the 2015 Agreement. Accordingly, the claims under the 2015 Agreement had fallen away. Ms Owens-Strauss said the TWU pursued the application on the basis that dnata had ‘misinterpreted and misapplied a number of clauses under the 2018 Agreement’. It is disputed as to what constitutes ‘overtime’ under the 2018 Agreement (see Clause 5.5). The dispute is the meaning of the exceptions in Cl 5.1 (see: [14] above), in particular sub-Cl 5.1(h). The Union submitted that the only exemption is limited to circumstances where an employee changes their original shift with another employee. It does not include circumstances where dnata contacts the employee and asks them to work a shift or offers them to work a shift which is available, and the employee picks up the shift. Ms Owens-Strauss said the critical words are ‘the employee has changed shifts’. In other words, the original shift is exchanged for a new shift and these circumstances are outside the control of the respondent.

[36] Ms Owens-Strauss submitted that the second issue is Cl 5.1(g) which only relates to circumstances outside of an employee’s rostered shift. It was the respondent’s position that this means circumstances where the employee has the choice to accept, or not to pick up a shift, but is not operationally required to do so at short notice. This is plainly wrong and is an incorrect meaning of the word ‘required’ in the subclause. Ms Owens-Strauss said there is no obligation to accept additional shifts outside of rostered hours. The key is that the exemption is where that employee directly swaps with another employee, where there is no involvement from the employer.

[37] Ms Owens-Strauss maintained there is no ambiguity with the words in dispute and by giving them their plain and ordinary meaning; see: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005, the Commission would reject dnata’s interpretation.

Submissions for dnata

[38] Mr Rauf said that notwithstanding the significant confinement of the issues in dispute, it is contextually relevant to refer to the relevant provisions of the 2015 Agreement, from which many of the practices in the 2018 Agreement came from. In this respect, Cl 14.1 as to the guarantee of 24 hours for part time employees, is to be read with Cl 21.1 being a two-step process for determining overtime entitlements read together with Cl 21.4 which deals with the 10% loading by reference to dnata ‘requiring’ the employee to work overtime.

[39] Turning to the 2018 Agreement, Mr Rauf observed Cl 2.3(a) retains the 24-hour minimum weekly hours. Clause 21.3(h) now ensures part-time employees have an opportunity to pick up more hours. The rostering clause (Cl 5.1) provides the guiding principles as to rostering. Counsel submitted the exemptions in sub-Cls 5.1(e)-(h) provide certainty as to the circumstances where an employee can pick up additional hours in addition to the ‘loaded rate’, which is Mr Robinson’s rate.

[40] Clause 5.1 (g), as to an employees’ election to work, but not being required to pick up a shift, is referable to the 8 hour a day or 38 in a week, if not exceeded, then overtime does not arise, even if the employee is required. For example, if you are rostered for 6 hours, but a flight delay requires another 2 hours, overtime does not apply, but the loaded rate is maintained. This is consistent with preference and opportunity to work additional hours, rather than using casuals or labour hire.

[41] As to shift swap and shift give away, where there is immediate control of dnata, Counsel referred to Mr Maybury’s evidence as to how it has been understood to work. If the employee says they cannot work the shift, it is effectively given away to the pool of employees who might not have reached the minimum hours and anyone who might want it. If there is no one volunteering, the employer then may direct a person to do so. What the Union says conflates a shift swap with a shift give away, which is something different and must be given work to do.

[42] Mr Rauf submitted that when viewed in this way the provisions conform to the objective of facilitating flexibility and opportunity for employees to work more hours, if they want, without incurring additional costs for dnata. The employer could just have easily called in casuals or labour hire. Mr Rauf relied on the interpretation principles recently reaffirmed in James Cook University v Ridd [2020] FCAFC 123; Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association [2020] FCA 682 (‘Qantas v ALAEA’); the Full Federal Court’s judgement in WorkPac Pty Ltd v Skene [2018] FCAFC 13; Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829; and Chapmans Ltd v Australian Stock Exchange Ltd (1996) FCR 402.

[43] Counsel put that the construction to be preferred is one which gives work to do to all the provisions of the Agreement, consistent with context and flows from the plain, ordinary meaning of the words. Mr Rauf added that this was consistent with Mr Robinson’s queries in 2017 and November 2018 when he asked:

(a) ‘Why aren’t staff getting a 10% loading on hours exceeding 40 hours?’ and

(b) ‘Can you explain to me why I wasn’t paid for my overtime loading 10% for working more than 8 hours in a shift?’

Submissions for the TWU in reply

[44] Ms Owens-Strauss said that the TWU believed the respondent has used an interpretation to its benefit and to disadvantage part time employees by circumventing its obligations to pay overtime by framing the ‘shift give away’ arrangement inconsistent with the 2018 Agreement.

[45] Ms Owens-Strauss noted that Mr Robinson has been escalating this issue for some time, including under the 2015 Agreement. She highlighted Cl 21.1(c) which refers to overtime applying where any shift other than a rostered shift, is worked and Cl 10.3 in the modern award which provides for any hours worked outside of rostered hours to constitute overtime.

[46] In respect to custom and practice, Ms Owens-Strauss relied on Australian Municipal, Administrative, Clerical and Services Union v Gladstone Ports Corporation Limited[2020] FWC 1187 to observe that such a consideration only arises if the words do not have a plain and ordinary meaning. In any event, there was no common understanding as Mr Robinson’s agitation of the issue, as far back as 2017, demonstrates.

CONSIDERATION

[47] The issues in dispute have narrowed significantly by the time of the hearing of the application on 28 October 2020 and I welcome and appreciate the parties’ cooperation in that regard. Nevertheless, there remains a disagreement about the meaning of the words in a number of clauses of the 2018 Agreement, as they apply to whether overtime and meal allowances are payable in the circumstances described in the evidence and the parties’ submissions.

[48] Unsurprisingly, the parties are ad idem as to the principles to be applied by the Commission when undertaking the exercise of interpreting the words in an enterprise agreement. These principles, now notoriously known as the Berri Principles, were established in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[2017] FWCFB 3005 (‘Berri’). I set out the Berri Principles below:

‘1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision’s place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide (sic) the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.’

[49] The Full Bench of the Commission in Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd T/A Appin Mine[2017] FWCFB 4487 (‘Endeavour Coal’), considered Golden Cockerel and Berri in the following terms:

‘[42] In Golden Cockerel, the Full Bench set out authorities which make it clear that while the task of construction begins with consideration of the ordinary meaning of the words of the agreement, regard must be paid to the context and purpose of the provision or expression being construed. Those authorities make clear that context and purpose are relevant to construction and must be considered even where the words of the provision being construed appear, on their face, to have a clear and unambiguous meaning.

[43] In this regard, the Full Bench in Golden Cockerel had set out at [29] the explanation of this point by the NSW Court of Appeal in Mainteck Services Pty Ltd v Stein Heurtey SA.Relevantly, that explanation emphasises the following matters:

•  Until a word or phrase is understood in the light of the surrounding circumstances, it is rarely possible to know what it means and there is always some context to any statement;

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

•  To state that a legal text is clear reflects the outcome of an interpretation process and means that there is nothing in the context that detracts from the ordinary literal meaning and cannot mean that context can be put to one side;

•  The phrase used by Mason J in Codelfa “if the language is ambiguous or susceptible of more than one meaning” does not mean that the susceptibility of the language to more than one meaning must be assessed without reference to the surrounding circumstances and in order to determine whether more than one meaning is available it may be necessary to turn to context; and

•  Context has also been described as surrounding circumstances and the meaning of terms normally requires consideration not only of the text, but of the surrounding circumstances known to the parties and the purpose and object of the transaction.’ (footnotes omitted)

[50] Further, the Full Bench of the Commission in United Firefighters Union of Australia v Emergency Services Telecommunications Authority T/A ESTA[2017] FWCFB 4537, stated:

‘[35] As stipulated in Berri, the starting point for interpreting an enterprise agreement is to have regard to the ordinary meaning of the words used. Further, the text must be interpreted in the context of the agreement as a whole. Principles 7 and 10 elicited in Berri emphasise that ambiguity in a provision within an enterprise agreement must be identified before one is to have regard to evidence of the surrounding circumstances. However, principle 8 makes it clear that, in determining whether ambiguity exists, one may have regard to evidence of the surrounding circumstances. That is, such evidence can be used to identify and resolve any ambiguity.’

[51] The principles applying to the interpretation of an enterprise agreement have also been the subject of much Federal Court exegesis. The Full Court of the Federal Court in WorkPac Pty Ltd v Skene [2018] FCAFC 131 (‘Workpac’) said at para 197:

‘The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context:  City of Wanneroo v Holmes (1989) 30 IR 362 at 378 (French J). The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378–9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)).  To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced:  see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).’ (citations omitted)

[52] It may be accepted that the general legal principles applicable to the interpretation of enterprise agreements are the same as those which have traditionally applied to Awards. In a judgement of the Federal Court of Australia, Rangiah J in Swissport Australia Pty Ltd v Australian Municipal Administrative Clerical and Services Union (No 3) [2019] FCA 37 provided a helpful summary by reference to the frequently cited authorities. At para 52, His Honour said:

‘52. The principles of construction of awards are well-settled and include the following:

(1) The canons of construction found in the Acts Interpretation Act 1901 (Cth) apply to awards of the Commission: City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [52]; Construction, Forestry, Mining and Energy Union (Construction and General Division) v Master Builders’ Group Training Scheme Inc (2007) 161 IR 86 at [33]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638 at [29]; Sydney Night Patrol and Inquiry Company Limited trading as SNP Security v Pulleine [2014] FCA 385 at [26].

(2) The task of construction begins with the natural and ordinary meaning of the words used: City of Wanneroo at [53]; Kucks v CSR Limited (1996) 66 IR 182 at 184; Australian Workers’ Union v Cleanevent Australia Pty Ltd [2015] FCA 1477 at [13].

(3) An award is to be interpreted in light of its industrial context and purpose: City of Wanneroo at [53]; Zader v Truck Moves Australia Pty Ltd [2016] FCAFC 83 at [27]; Prestige Property Services Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2007) 161 FCR 95 at [56] and [109]; Soliman v University of Technology, Sydney (2008) 176 IR 183 at [82]

(4) An award is also to be interpreted in light of the commercial and legislative context in which it applies: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2] and [13]; Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2010) 186 FCR 88 at [90]; Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [14]-[18]; Zader at [27].

(5) An award “must not be interpreted in a vacuum divorced from industrial realities”: City of Wanneroo at [57]; Australian Workers’ Union v Cleanevent Australia Pty Ltd at [14].

(6) The relevant “context” to be considered in interpreting an award extends to the origins of a particular clause. However, most often the immediate context, being the clause, section or part of the award in which the words to be interpreted appear, will be the clearest guide: Short v FW Hercus Pty Limited (1993) 40 FCR 511 at 517-19.

(7) The Court should not make too much of infelicitous expression in the drafting of an award. Ultimately, as awards bind the parties on pain of pecuniary penalties, they should make sense according to the basic conventions of the English language: City of Wanneroo at [57]. Narrow or pedantic approaches to the construction task are misplaced, but a court is not free to give effect to some anteriorly derived notion of what is fair or just regardless of what has been written in the award: Kucks at 184; Excelior Pty Ltd at [30].

(8) While context and purpose of an award will be relevant, ultimately the Court’s task is to give effect to the meaning of the award as expressed in its words, objectively construed: Amcor Limited at [70], [77]–[114].’ (citations omitted)

[53] In Qantas v ALAEA, Katzman J, after referring to the judgement in WorkPac said at para 70:

‘70. Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 related to a certified agreement under the Workplace Relations Act 1996 (Cth). In that part of the judgment to which the Full Court referred in WorkPac, Kirby J said that, in combination, “the nature of the [agreement in question], the manner of its expression, the context in which it operated and the industrial purpose it served” suggested that the relevant clause should not be strictly construed but construed in a way “that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the [a]greement”. His Honour observed that that was the proper approach to interpreting clauses in certified agreements, expressing agreement with the oft-cited passage from the judgment of Madgwick J in Kucks v CSR Ltd (1996) 66 IR 182 at 184. His Honour emphasised two remarks in that passage, one of which was that “meanings which avoid inconvenience or injustice may reasonably be strained for”.’

[54] In summary, it is well accepted that the construction of an enterprise agreement begins with the ordinary meaning of the words used; see: Berri at [114]. Where there is a dispute about the construction of an enterprise agreement, its resolution will turn on the language of the agreement, having regard to its context and purpose; see also: Golden Cockerel. Context might appear from the text of the agreement when viewed as a whole, the disputed provision’s place and arrangement in the agreement and the legislative framework under which the agreement was made; see: Berri Principle 1 at [114] and Golden Cockerel Principle 8 at [41]. However, the task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome; see: Berri Principle 2 at [114].

[55] Ms Owens-Strauss and Mr Rauf both submitted that the words in contention are not ambiguous, uncertain or susceptible to more than one meaning, but of course result in different interpretation, leading to a different outcome. Obviously, they both cannot be right, although they might both be wrong and the Commission might form a view that the language in the 2018 Agreement is ambiguous, in which case resort to surrounding circumstances is permitted; see Berri Principles 8-11. It is also important to note that resort may be had to surrounding circumstances to establish whether any ambiguity exists. However, in my opinion, the words in contention are not ambiguous and lead to only one outcome.

[56] In unpacking the various cross-referencing of clauses in the 2018 Agreement, it seems to me that the starting point is sub-Cls 5.1(e)-(h) and Cl 5.5(a), and the undertaking given by dnata on 30 July 2018; see: [16] above.

[57] Part 5, Cl 5.1 and Cl 5.5 are carefully constructed provisions dealing with rostering, hours of work and overtime and different arrangements for full time, part time and casual employees, underpinned by the principle of flexibility. Sections (e)-(h) of 5.1 set out a number of exemptions to overtime for part time employees. In my view, by the use of the words, ‘where a part time employee agrees’ in sub-s (f) – Shift extensions – and ‘where a part time employee elects’ in sub-s (g) – Shift pickups – when read together with sub-s (h), which provides that ‘double time or overtime payment are not paid where the employee has changed shifts through shift swaps, shift give away or any other means outside the immediate control of dnata and of their own volition…’, can leave no room to doubt that the distinction in this case is really between the employee’s voluntary choice or option, and where dnata directs an employee to work additional hours. Such an interpretation is consistent with the principle of reading the words in a clause having regard to their context and purpose, and when viewed in the context and purpose of the 2018 Agreement when read as a whole.

[58] It is obvious that Cl 5.5 – Overtime – reflects a change in emphasis from the employer directing to requesting reasonable overtime. However, for present purposes, this is a distinction without a difference. Clause 5.5(g) also reinforces the voluntary arrangements between two employees to swap a shift which is not the result of dnata requesting an employee to work reasonable overtime. It reads:

‘(g) An employee will not be entitled to be paid an overtime loading or receive the meal allowance if the employee comes to work overtime as a result of swapping a shift or shifts with another employee and not as a result of being requested by dnata to work the overtime.’

[59] To the extent ‘surrounding circumstances’ (namely, custom and practice) can be considered to determine whether any ambiguity exists, I accept the evidence, even from the TWU in 2017, that the inquiries at the time related to additional hours required to be worked beyond the spans of 8 hours a day or 38 hours a week; see: [43] above. In my opinion, this evidence demonstrates that the requirement to work beyond those limitations can only be at the voluntary choice of the employee, or where a direction from dnata is necessary (which is rare) and overtime is then payable. The fact the process involves dnata offering a shift to a cohort of employees, does not detract from the notion that anyone in that cohort can refuse the offer and in the unlikely event of no volunteers, a direction may be necessary.

[60] In my view, these circumstances do not arise from the immediate control of the employer because it relies on the employee to have sought the change ‘of their own volition’; again, reinforcing the voluntary notion of working additional hours.

[61] Lest there be any doubt, and applying the principle of the disputed words being read in the context and purpose of the 2018 Agreement when viewed as a whole, a number of other of the 2018 Agreement clauses are apposite in this regard.

[62] Clause 2.3 introduces a number of protections for part time employees as to the equitable distribution of additional hours which has a corresponding, but different provision in the 2015 Agreement.

[63] Attachment C provides for existing employees on a ‘loaded rate’ as distinct to an employee on base rate and penalties. The seventh exemption in the chart for employees on a ‘loaded rate’ reads:

‘Clause 5.5(b) Overtime for an existing employee on a loaded rate will not be paid at double time. Instead it will be paid at the employee’s ordinary hourly rate of pay plus an overtime loading of 10%.’

[64] In my opinion, the disputed words have a plain, ordinary meaning which is consistent with the overall objectives and purpose of the clause in which they appear and the 2018 Agreement when read as a whole. The overall objectives and purpose are:

1. To facilitate flexibility in the specific work and environment of providing ramp and ground services at the airport arising from the vagaries of aircraft operations; and

2. To provide opportunities for permanent part time employees to work more hours if they want to, arising from the employee’s voluntary acceptance of such additional work, which would otherwise not arise, without dnata incurring additional costs.

[65] I refer in particular to the references of Katzman J in Qantas v ALAEA at [70]. Accordingly, I generally accept the interpretation of dnata in respect to the circumstances of this case. The result I prefer might be summarised as overtime and meal allowances are not paid where the employees voluntarily accept a change of shift or additional hours, which does not exceed more than 8 hours in a day, 38 hours in a week or more than 5 shifts in a working week. Where dnata requires or directs a part time employee to work in excess of these boundaries, a 10% loading and meal allowance should be paid.

[66] One final observation – Berri Principle 2 does not permit the interpretation of the words in an agreement in order to achieve a fair or just result. I note that the 2018 Agreement passed its nominal expiry date on 30 June 2020, and it would appear the parties are anxious to bargain for a new enterprise agreement (and may have already commenced). If there is a view of the Union that the payment of overtime to part time employees in the circumstances of this case is unfair and unjustified, then obviously it is entirely open for the negotiations to include a claim for such an entitlement.

[67] These proceedings are concluded and the dispute is resolved.

DEPUTY PRESIDENT

Appearances:

Ms A Owens-Strauss appeared for the Union.

Mr B Rauf of Counsel, instructed by Ms J Phillips, Associate, Sparke Helmore Lawyers, appeared for dnata.

Hearing details:

2020.

Sydney:

28 October.

Printed by authority of the Commonwealth Government Printer

<AE414740  PR725401>