Transport Workers' Union of Australia v Glen Cameron Nominees Pty Ltd T/A Glen Cameron Trucking
[2017] FWC 911
•28 FEBRUARY 2017
| [2017] FWC 911 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Transport Workers' Union of Australia
v
Glen Cameron Nominees Pty Ltd T/A Glen Cameron Trucking
(C2016/5290)
DEPUTY PRESIDENT BULL | PERTH, 28 FEBRUARY 2017 |
Alleged dispute about any matters arising under the enterprise agreement and the NES; s186(6). Interpretation of meal break provisions in the Agreement and their application to shift workers. Inconsistency with award considered.
[1] The Transport Workers’ Union of Australia, NSW Branch (the Union) has filed an application with the Fair Work Commission (Commission) to deal with a dispute arising under an enterprise agreement, the Glen Cameron Nominees Pty Ltd NSW EBA 2015-2019 (the Agreement). The award which underpins the Agreement is the Road Transport and Distribution Award 2010 (the Award).
[2] The issue in dispute is whether employees are entitled to a paid meal break when working afternoon and/or night shifts under the Agreement.
Agreement provisions
[3] Clause 2 of the Agreement - Parties to the Agreement, states that the parties to the Agreement are:
● Glen Cameron Nominees (the Company)(the respondent)
● The Transport Workers’ Union of Australia and
● All employees of the Company which fall within the jurisdiction of the Award other than employees covered by the Glen Cameron Huntington Warehouse Employees Enterprise Agreement 2009-2012
[4] Clause 2 of the Agreement also states at the second paragraph:
“It is further agreed that all of the terms of the Award, as amended from time to time, shall apply to employees covered by this Agreement provided however that where a clause of this Agreement is inconsistent with a clause of the Award in part or in whole, the clause in this Agreement shall prevail to the complete exclusion of the Award clause.”
[5] Clause 18 of the Agreement - Meal & Rest Breaks, refers to a meal break at subclause 18.1 in the following terms:
“An employee shall be allowed a 30 minute unpaid meal break, for every five hours of work performed. The employee shall use their discretion to take the meal break but it may not be taken within the first 4 hours of commencing work and shall not be taken later than 5 hours after commencing work. The meal break shall be taken as directed by the Supervisor, only where it would otherwise cause a disruption to the on-going performance of work.”
(My underline)
[6] Reference to employees receiving an unpaid meal break is also contained at clause 15, Rostering, of the Agreement where it states the methods by which employees may be required to work their ordinary hours.
[7] Subclause 18.2 - Crib Break of the Agreementprovides that an employee required to work overtime for two hours or more after working ordinary hours must be allowed a paid break of 20 minutes before commencing overtime or as soon as practicable thereafter.
Award Provisions
[8] The Award at clause 26 - Breaks, provides that an employee must be allowed a regular meal break during the ordinary hours of work except where unforeseen extraordinary circumstances arise. The meal break must be of a regular duration of not more than one hour or less than 30 minutes.
[9] The Award provision does not refer to the meal break being paid or unpaid, 1 however reference is made at subclause 26.2(a) to a paid meal break of 20 minutes to be taken before commencing overtime, where an employee is required to work overtime for two hours or more.
[10] Clause 24 - Shiftwork of the Award provides at subclause 24.9 - Meal Breaks the following:
“All shiftworkers while working on day, afternoon or nightshift will be entitled to a paid meal break of 20 minutes. An employee must not be required to work more than five hours without a meal break.”
(My underline)
[11] It is not disputed between the parties that the respondent engages employees who perform work which satisfies the definition of shift work under the Award.
The Dispute
[12] Section 739 of the Act authorises the Commission to arbitrate a dispute in accordance with a term of an enterprise agreement providing for a dispute settlement procedure.
[13] The Agreement’s Dispute Settling Procedures at clause 21 states that an employee may raise a grievance or dispute about the operation of the Agreement and following unsuccessful attempts to resolve the grievance or dispute, any party may seek the assistance of the Commission in resolving the dispute by further conciliation or arbitration.
[14] The Agreement makes no specific reference to shift work and the Union argue that pursuant to clause 2 of the Agreement, the shift work provisions of the Award operate including its meal break provision.
[15] The employer argues that in the absence of a provision in the Agreement providing for a paid meal break when working shift work, no such entitlement applies or is envisaged under the Agreement.
[16] The employer submits that the Agreement does not default to the Award shift work paid meal provisions as the Agreement contains a provision relating to meal breaks at clause 18 - Meal and Rest Breaks, which states that an employee shall be allowed a 30 minute unpaid break for every 5 hours of work performed.
[17] The Union application for the Commission to deal with the dispute states that the dispute concerns employees at the respondent’s Minchinbury and Yennora sites. A similar dispute is said to have arisen at the St Mary’s site and was initially resolved with shift workers receiving a paid meal break. The issue was placed back into dispute with the respondent ceasing the practice of paying for meal breaks as of 24 July 2016, and requesting employees pay back the monies received for meal breaks.
[18] A conciliation conference was held before the Commission on 17 October 2016. It was resolved at the conciliation that the respondent would reconsider its position and advise the Union of its final view, following which the Union would advise the Commission whether it wished to have the dispute arbitrated. Following an enquiry from the Commission, the Union advised on 8 November 2016 that the parties had not been able to resolve their dispute and requested that the matter proceed to arbitration.
[19] The Commission duly issued directions requesting the parties to file and serve any written submissions and witness statements in support of their respective positions.
[20] At the hearing Mr Adam Grumley, an Industrial Officer for the Union, appeared on behalf of the Union. Mr Maurice Baroni, a solicitor, was granted leave to appear on behalf of the respondent pursuant to s.596(2)(a) of the Fair Work Act 2009 (the Act).
Submissions on behalf of the Union
[21] The Union submitted that the respondent employs a number of shift work employees who work outside the ordinary hours of work provided for under the Agreement. The ordinary hours of work for a full-time employee under the Agreement are stated at clause 14 - Ordinary Hours of Work. It was submitted that shift work employees are not full-time employees as defined under the Agreement, as they not rostered between the hours of 4.00am and 7.00pm.
[22] For shift workers to be engaged under the Agreement, the provisions contained in the Award must be relied upon as the Agreement does not contain a definition or provisions to determine how shift workers are engaged.
[23] The respondent pays the shift work allowance, prescribed under the Award at subclause 24.3, to its shift workers for hours worked outside the prescribed ordinary hours under the Agreement. This allowance is not prescribed under the Agreement. As the Award also provides for a paid meal break of 20 minutes, it is the Union’s submission that this entitlement should also be paid to the respondent’s shift workers.
[24] On behalf of the Union, Mr Liam Searle, who is employed as a PM Shunt Driver by the respondent, stated that he had worked for the employer for nearly three years performing shift work but has never been paid for his meal break. Mr Searle acknowledged that he had only raised the issue of payment for the meal break with the respondent’s management after the Agreement had been made and after being informed that shift workers were entitled to a paid meal break.
[25] Mr John Cini, another employee of the respondent, also gave evidence on behalf of the Union. Mr Cini had, until recently, been employed as a fork lift operator working from 8.00pm until 4.00am, Sunday through to Thursday. Mr Cini was the Union delegate at the respondent’s site at St Mary’s.
[26] Mr Cini stated that the issue concerning paid meal breaks was raised in October 2015 during discussions between employees, management and the Union. Following these discussions the respondent commenced paying for the meal breaks, and around April 2016 employees received back pay for all paid meal breaks from August 2015 to April 2016.
[27] In August 2016, Mr Cini met with Mr Glenn Rohan, the Group Human Resources and Industrial Relations Manager for the respondent. Mr Rohan informed Mr Cini that the respondent had received further legal advice and that the meal break payments would cease in late August and that the respondent would attempt to recoup all payments that had already been made. At this time the Union advised that they were in dispute with the respondent regarding its interpretation of the Agreement.
[28] Under cross examination Mr Cini agreed that the payment of the shift work meal break was not raised during the Agreement negotiations.
Submissions on behalf of the Employer
[29] The employer submitted that the words in the Agreement should be given their plain meaning. Clause 18 of the Agreement places an obligation on the employer to provide an employee with a 30 minute unpaid meal break for each 5 hours of work performed. The clause further provides that the meal break shall be taken as directed by the Supervisor only where it would otherwise cause a disruption to the on-going performance of work.
[30] The Agreement also provides for a paid crib break to be taken after an employee has worked two or more hours of overtime. The respondent submitted that when reading the provisions in the Agreement together with the meal break provision, it is clear the Agreement has contemplated the totality of conditions applying to meal breaks. 2
[31] The respondent submitted that the requirement under the Award to pay employees engaged on shift work a 20 minute paid meal break, pursuant to clause 24.9, is inconsistent with the obligation to provide all employees under the Agreement with a 30 minute unpaid meal break.
[32] The respondent submitted that the Agreement meal break provisions cover all employees including those engaged on shift work. Further, as the Agreement expressly stipulates that employees will receive an unpaid meal break of 30 minutes, the reference to ‘employees’ is to include those engaged on shift work.
[33] At the time the Agreement was made and during the operation of its predecessor, a paid meal break was not provided to shift workers. This was the respondent’s evidence of the surrounding circumstances to be used as an aid to interpreting the Agreement for the purposes of determining whether an ambiguity exists. 3
[34] The respondent argues that clause 18.1 of the Agreement, which provides for a 30 minute unpaid meal break for all employees, is inconsistent with clause 24.9 of the Award, which provides for a 20 minute meal break for employees engaged in shift work. The Respondent contends that, as there is an inconsistency, the Agreement provision prevails pursuant to clause 2 of the Agreement.
[35] It was submitted that once an inconsistency has been identified, whether that be in whole or in part, the clause in the Agreement must prevail to the complete exclusion of the Award clause.
[36] The Commission brought to the attention of the employer that the Form F17 -Statutory declaration in support of an application for approval of an enterprise agreement - filed in November 2015 requesting approval of the Agreement stated [NO] in answer to the question at 2.16 as to whether shift workers could be employed under the Agreement. In response to question 3.5 whether any terms of the agreement are less beneficial than the Award; the Statutory Declaration did not identify shift workers not receiving a 20 minute paid meal break as a less beneficial term under the Agreement.
[37] The employer submitted that the statutory declaration completed by the employer’s representative was in error in stating that shift workers would not be employed under the Agreement and having been filed after the Agreement was made, it is not admissible in resolving any ambiguity that may arise in its interpretation.
[38] While the respondent acknowledges that employees engaged on shift work had for a period been paid a 20 minute meal break, it was submitted that this was paid erroneously and is not admissible in resolving any ambiguity that may arise in the interpretation of the Agreement because it is conduct that occurred after the Agreement was made.
[39] The respondent’s Group Human Resources and Industrial Relations Manager, Mr Glenn Rohan, gave evidence and provided a witness statement. Mr Rohan stated that the Agreement was negotiated over approximately five months during which there were seven meetings. Mr Rohan stated that at the time the Agreement was made (24 November 2015) employees were performing shift work at the relevant sites and received an unpaid meal break of 30 minutes for each five hours of work performed.
[40] Mr Rohan advised that the respondent had fourteen employees engaged in shift work as defined under clause 24 of the Award. Subsequent to the Agreement’s approval by the Commission and commencement on 13 January 2016, the respondent, in Mr Rohan’s evidence, incorrectly interpreted the terms of the Agreement by providing shift workers with a 20 minute paid meal break. This occurred on or around 15 March 2016. Three months later, on or around 15 June 2016, Mr Rohan formed the view that the respondent was not required to make the 20 minute meal break payment and that it had mistakenly interpreted the terms of the Agreement. Mr Rohan did not agree with the evidence provided by Mr Cini as to when the meal break payments ceased. Mr Rohan’s evidence was that the meal break payments ceased on or about 24 July 2016, after employees were provided with notice on 24 June 2016 that this would occur.
[41] Mr Rohan was unable to advise the Commission whether employees were told during the Agreement negotiations that the meal break payment entitlement for shift workers under the Award was not an entitlement under the proposed Agreement.
Consideration and Determination
Interpretation of industrial agreements
[42] The approach to be taken in interpreting industrial instruments was set out in the Full Bench decision of Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited4 (Golden Cockerel), which stated that the general approach to the construction of enterprise agreements was as explained in the judgment of French J, as he then was, in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union 5 (City of Wanneroo).
[43] In City of Wanneroo French J, observed:
“The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘...the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘....ideas that gave rise to an expression in a document from which it has been taken’ - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J).”6
[44] The Full Bench in Golden Cockerel then drew on other authorities to expand on the approach to be taken at paragraphs 20 to 22 of their decision, including the decision in Kucks v CSR Limited7 (Kucks).
[45] In Kucks, a matter relating to the interpretation of an industrial award, Madgwick J held that that a narrow pedantic approach to interpretation of awards should be avoided and meanings which avoid inconvenience or injustice may reasonably be strained for:
“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
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 mean 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.”8
[46] At paragraph [41] of Golden Cockerel; 10 principles are listed in what the Full Bench described as being distilled from the authorities:
“1. The AI Act9 does not apply to the construction of an enterprise agreement made under the Act.
2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.
3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:
(a) 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;
(b) notorious facts of which knowledge is to be presumed;
(c) evidence of matters in common contemplation and constituting a common assumption.
7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.
8. Context might appear from:
(a) the text of the agreement viewed as a whole;
(b) the disputed provision’s place and arrangement in the agreement;
(c) the legislative context under which the agreement was made and in which it operates.
9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is 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.
10. 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.”
[47] Based on the above, the interpretation of an industrial agreement begins with a consideration of the natural and ordinary meaning of the words in question. The words are to be read as a whole and in context. Ambiguity and uncertainty, if any, may be resolved by a consideration of the history and subject matter of an agreement.
[48] I do not find that the relevant words in the Agreement concerning meal breaks and the incorporation of and operation of the Award where it is not inconsistent in whole or in part with the Agreement, are either ambiguous or uncertain. In interpreting the Agreement, the relevant clauses are capable of being given their plain meaning, thus there is no need to look to any surrounding circumstances to contradict the plain meaning of the relevant clauses.
[49] The dispute over the construction of the Agreement can be resolved by considering the text of the Agreement viewed as a whole; the language of the Agreement having regard to its context and purpose and the location in the Agreement where the disputed clause exits.
[50] While clause 15, Rostering, of the Agreement refers to the working of shifts, the Agreement does not contain any specific provisions relating to the performance of shift work outside the ordinary hours of work provided for in clause 14 of the Agreement. As such the Award must be relied upon to allow shift work to occur. The Award clause amongst other things provides:
● a definition for shift work;
● how shift work can be worked;
● shift work allowances payable; and
● meal breaks payable when working shift work.
[51] Unless, as per clause 2 of the Agreement, the Agreement contains terms inconsistent in part or in whole with the Award, the Award shift work provisions, including payment of a 20 minute meal break, will have application. The respondent’s submission is that pursuant to clauses 15 and 18 of the Agreement, all employees are entitled to an unpaid meal break of 30 minutes. The respondent submits that, by virtue of the Agreement provision, the Award entitlement for shift workers of a 20 minute paid meal break is inconsistent with the Agreement and therefore the Award provision does not operate.
[52] The respondent acknowledges that while it engages shift workers as defined under the Award, the Agreement makes no specific reference to the engagement of employees as shift workers. 10 Mr Rohan, in cross examination, stated that the respondent applied the shift penalties to its shift workers as prescribed under the Award.
[53] Inconsistency has been examined on multiple occasions by the High Court. Section 109 of the Constitution provides that “when a law of a state is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.” The High Court has generally formulated three approaches to ascertaining the existence of inconsistency. Inconsistency is present where it is impossible to obey both laws, 11 where one law purports to confer a legal right which the other law purports to take away,12 or where one law evinces an intention to cover the field, that is, it shall be the law on the topic whether or not there is a direct contradiction, this can be express or implied.13
[54] There is no argument that the Agreement and the Award are consistent in respect to an employee’s entitlement to a 30 minute unpaid meal break, at least in respect of non-shift workers. The Agreement and the Award are also consistent in respect to an employee’s entitlement to a 20 minute paid meal break where they work two hours or more of overtime following the ordinary hours.
[55] If, as put by the respondent, clause 18.1 of the Agreement has application to shift workers, I accept that the meal break provisions of the Award are inconsistent with the meal break provisions in the Agreement, and the Agreement meal break provision must prevail.
[56] However I do not accept that it is a logical reading of the Agreement to maintain that the unpaid meal break provisions have application to shift workers. This is because the Agreement does not deal with the engagement of shift workers and their separate entitlements e.g. shift penalties, whereas the Award makes separate provision for shift workers and their various entitlements.
[57] Clause 14 of the Agreement, Ordinary Hours of Work, provides that full time employees must be rostered to work their ordinary hours between the hours of 4.00am and 7.00pm, Monday to Sunday. The Agreement does not specifically address the working hours for shift workers.
[58] Clause 22.3 of the Award prescribes the ordinary hours for employees as 5:30am – 6:30pm, Monday to Friday. 14 At clause 24.1(d) of the Award, shift work is defined as work extending for at least 2 weeks and performed wholly or partly between the hours of 6:30pm and 8:30am but does not include work performed by day workers employed under clause 22 - Ordinary hours of work.
[59] As the Agreement is silent on the engagement of shift workers, it is entirely appropriate to examine the Award which applies as per clause 2 of the Agreement to ascertain the terms under which shift workers may be engaged. The respondent acknowledges that it engages shift workers as per the definition under the Award. 15 This at least is applied by the respondent in respect to the Award shift penalties. While the Agreement provides for employees to receive an unpaid 30 minute meal break, I do not see this as being inconsistent with the specific provision for shift workers to receive a paid meal break under the Award.
[60] As a matter of legal interpretation, specific provisions will ordinarily override those which are general in nature. 16 A common sense reading of the Agreement leads to the conclusion that the provisions regarding the engagement of shift workers have been left to those which exist in the Award, which is incorporated into the Agreement.
[61] The ability to engage shift workers derives from the shift work provisions of the Award; it is therefore highly artificial to rely on the general meal break provision under the Agreement as being inconsistent with the specific meal break provisions under the Award.
[62] There is nothing in the Agreement that suggests that the meal break provisions were to be exhaustive or the exclusive provisions applying to both shift and non-shift workers, other than the reference to ‘an employee’, which the respondent submitted should be interpreted as an intention to exclude the specific shift work meal break provisions of the Award.
[63] This, in my view, is to take what is often criticised as a narrow or pedantic approach to interpretation.
[64] The Union have sought a determination stating that the provisions of clause 24 Shiftwork of the Award apply to employees of the respondent performing shift work and covered by the Agreement. A determination 17 shall issue in the terms sought by the Union.
DEPUTY PRESIDENT
Appearances:
Mr A Grumley for the Transport Workers’ Union of NSW
Mr M Baroni Solicitor for Glen Cameron Nominees Pty Ltd
Hearing details:
Sydney
16 December 2016
1 It is not suggested by any party that the award meal break is paid
2 See decision of Wilcox J in Duncans Holdings Ltd v Cross and others at 76 IR 261 at 262
3 Outline of Submissions Exhibit R3 at [29]
4 [2014] FWCFB 7447
5 (2006) 153 IR 426
6 Ibid at 438
7 (1996) 66 IR 182
8 Ibid at 184
9 Acts Interpretation Act1901
10 Written Submission Exhibit R3 at [25]
11 This was held by Barwick CJ in Telstra Corporation Limited v Worthing 197 CLR 61 (1999) to include where it was possible to obey both laws but one would provide a greater obligation than the other.
12 Colvin v Bradley Bros Pty Ltd (1943) 68 CLR 151
13 Viskauskas v Niland (1983) 153 CLR 280
14 The Award allows these hours to be altered by agreement
15 Written submissions at [9] Exhibit R3 and evidence of Mr Rohan
16 The statutory interpretation rule known as ‘generalia specialibus non derogant’
17 See Metropolitan Fire and Emergency Services Board v United Firefighters’ Union of Australia; Garth Duggan [2016] FWCFB 8120 at [60]
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