Transport Workers' Union of Australia v Smith Bros Trade and Transport Terminal Pty Ltd T/A P&O Trans Australia (Qld) Pty Ltd

[2013] FWC 4600

[2013] FWC 4600

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Transport Workers’ Union of Australia
v
Smith Bros Trade and Transport Terminal Pty Ltd T/A P&O Trans Australia (QLD) Pty Ltd
(C2012/5688)

DEPUTY PRESIDENT ASBURY BRISBANE, 18 JULY 2013

Alleged dispute in relation to protected award conditions.

BACKGROUND

[1] This decision concerns an application by the Transport Workers’ Union of Australia (TWU) under s. 739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute with Qube Logistics (Qld) Pty Ltd (formerly Smith Bros Trade and Transport Terminal Pty Ltd T/A P&O Trans Australia (QLD) Pty Ltd) (Qube Logistics), in accordance with a dispute procedure under the P&O Trans Australia (Qld) Pty Ltd FCL Container Park and Transport Enterprise Agreement 2011 (the 2011 Agreement).

[2] Qube Logistics is in the business of transporting import and export containerised freight through the Port of Brisbane Wharf Terminals. The 2011 Agreement covers employees performing a range of work as defined in the classifications in the Road Transport and Distribution Award 2010 1 (the 2010 Award) including employees driving vehicles used to transport freight and operating fork lifts or container handlers.

[3] The application as it was filed, stated that the dispute related to start times; rostered days off and superannuation; and annual leave loading for night shift employees. The matter was the subject of a conciliation conference. The dispute in relation to rostered days off and superannuation and annual leave loading for night shift employees was resolved by
agreement. The dispute in relation to start times was not resolved and was listed for arbitration in accordance with the dispute procedure in the 2011 Agreement.

[4] The parties agreed that the question for arbitration is: Are employees of Qube Logistics Pty Ltd working under the P&O Trans Australia (QLD) Pty Ltd - FCL Container Park and Transport Enterprise Agreement 2011 entitled to a set start time? The relief sought by the TWU is an order of the Commission that the Respondent fix regular start times for its employees (other than Linehaul Laminex Gympie drivers).

INTERPRETATION OF INDUSTRIAL INSTRUMENTS

[5] The general principles to be followed in the interpretation of industrial instruments such as awards and agreements were conveniently summarised by Federal Magistrate Emmet in the 2011 case of NSW Nurses Association v SOS Nursing & Home Care Service Pty Ltd & Anor. 2

[6] Those principles are as follows: 3

• If the terms of an industrial instrument are clear and unambiguous, then the industrial instrument must be interpreted in accordance with that clear and unambiguous meaning. 4



• The words used in an industrial instrument should not be interpreted in a strict, technical fashion, because those who framed the industrial instrument are often non-lawyers drafting words in the context of custom and practice in an industry or particular enterprise. 5



• Each clause should be interpreted within its context, that is, the meaning of particular words should be read in the context of the industrial instrument as a whole, 6 and in the context of the clause/section in which it falls.7



• The court or tribunal should strive to give effect to the intention of the authority which made the award (or, presumably, in the case of an agreement, the intent of the parties to the agreement), provided that the words appearing in the instrument can reasonably be interpreted to mean that which the authority/parties intended them to mean. 8



• The court or tribunal’s recourse to extrinsic material in the interpretation of industrial instruments is not dependent upon the existence of ambiguity in the industrial instrument. 9



• Industrial instruments are not to be interpreted narrowly or pedantically. 10



• The aim is to determine what meaning was intended by the framers, keeping in mind that they “were likely of a practical bent of mind”. 11



• It is necessary to have regard to the practical purpose of the instrument intended to be served by the parties and the context in which it was made. 12



• Generally, ordinary or well-understood words should be given their ordinary or usual meaning. 13



• A strict literal interpretation is to be avoided. Clauses must be viewed broadly and in context. 14



• The agreement must be construed in relation to the matrix of facts that existed at the time the agreement was made. 15



• Whether the clause in question accords with business common sense is a relevant consideration. 16



• Where a clause in an award (or an agreement) is the “product of a history”, regard can be had to that history. 17

[7] In the present case, the history of the 2011 Agreement is a significant matter. As Justice Burchett observed in Short v FW Hercus Pty Ltd 18:

‘The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped if every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used.”

RELEVANT PROVISIONS OF THE 2011 AGREEMENT

[8] Clause 4 of the 2011 Agreement incorporates the 2010 Award and provides as follows:

“PROTECTED AWARD CONDITIONS

The parties acknowledge that where the Agreement is not inconsistent with or does not deal with a matter contained in the Road Transport and Distribution Award 2010 (‘the Award’) (as amended or replaced) and attached as Part C to this document, the Award will continue to apply.”

[9] Clause 25 of the Award (attached to the 2011 Agreement as Part C) provides as follows:

Start times

25.1 A regular starting time for each employee is to be fixed by the employer. Where an employer varies or changes the regular starting time of an employee the employer must give one week’s notice of such variation or change to the employee concerned.

[10] Clause 11.2.1 of the Agreement provides:

11.2.1 Employees performing pick-up and delivery work for Laminex at Gympie will be designated as Grade 8 - ‘L/Haul Laminex Gympie’ drivers. These drivers will be required to work shifts of irregular house and start and finish times. The parties agree that these employees are paid a higher rate of pay than the standard grade 8 to compensate for these irregularities and that no ‘pre start time’ penalties shall apply.

[11] Clause 8.7 of the Agreement under the heading ‘Contract of Employment’ provides:

Employees are required to be ready to commence work at the commencement time directed by the Company and work till the cessation time of the work period. Absence from work may be authorised in accordance with the Company’s procedures.

[12] Under the heading “Service Levels/Productivity” the 2011 Agreement provides:

9.1 It is the intention of the Enterprise Agreement to focus on the object to provide service levels and equipment sufficient to ensure competitiveness so that the Company can provide its client’s satisfactory efficiency levels.

Accordingly, the following are the objectives of the parties over the progressive implementation of the Enterprise Agreement.

...

9.1.2 To ensure that the Company operations are managed efficiently and effectively.

9.1.3 To satisfy the requirements of customers through the provision of reliable, efficient and competitive service levels.

...

9.1.7 To provide job satisfaction for Employees through the acquisition of skills and more flexible work practices in keeping with the operational requirements of the Company.

9.1.8 For the Company and its Employees to observe the agreed Work and Management practices set out in Clause 10 of this agreement.

[13] Under the heading “Work and Management Practices” the 2011 Agreement provides:

10.1 The planning, direction and control of the Company operations is the function of management.

10.2 Operations and equipment level shall be determined by Management to meet demands.

[14] Clause 13.2 B defines “day shift” as a shift which commences at 5.30 am or later, but finishes at or before 6.30 pm. The 2011 Agreement deals with the subject of Overtime at clause 13.6 in the following terms:

“The Company may require an Employee to work reasonable overtime. The Overtime rate will apply to any hours worked in excess of 8 hours in any one shift or in excess of 40 hours in any one week (Monday to Friday), except where the overtime hours fall on a Saturday or Sunday (in which cast the Saturday or Sunday rate will apply instead). The overtime rate shall be time and a half for the first two hours and double time thereafter (Based on the ordinary rate of pay). The Company will ensure that all overtime commitments (when overtime is available), will be operationally restricted to a reasonable maximum acceptable number of working hours per day.”

HISTORY OF THE 2011 AGREEMENT

[15] The 2011 Agreement is the last in a series of five enterprise agreements, the previous four enterprise agreements being:

• Smith Bros Certified Agreement (2001 Agreement);



• P&O Trans Australia (QLD) Pty Ltd – FCL Container Park and Transport Enterprise Agreement 2003 (2003 Agreement);



• P&O Trans Australia (QLD) Pty Ltd – FCL Container Park and Transport Enterprise Agreement 2005 (2005 Agreement); and



• P&O Trans Australia (QLD) Pty Ltd – FCL Container Park and Transport Enterprise Agreement 2008 (2008 Agreement).

[16] As such the 2011 Agreement is a product of history and it is permissible as an aid to its construction to consider that history 19. The manner in which start times and related provisions were dealt with in previous versions of the Agreement is as follows. All Agreements have provided for the incorporation of the Award which would otherwise have applied to employees. The relevant clauses in the 2001 and 2003 Agreements provided that those Agreements prevailed over the Award to the extent of any inconsistency. The 2005 and 2008 Agreements contained clauses incorporating the relevant award in almost identical terms to clause 4 of the 2011 Agreement. For each of the Agreements, the relevant aAwards were said to be as follows:

• 2001 Agreement - “Transport, Courier and Distribution Industrial Award (Southern Division)”



• 2003, 2005 and 2008 Agreement - “Transport Workers Award 1998”

[17] I assume that the Award referred to in the 2001 Agreement is the Transport, Distribution and Courier Industry - Southern Division (Qld) and not the Transport Workers’ Award 1998 as submitted by Qube Logistics.

[18] The 2001, 2003 and 2005 Agreements contained clauses setting starting times within the body of each Agreement (rather than in the appended Award). Each of the 2001, 2003 and 2005 Agreements provided for a starting time for day shift of 7.00 am, described as the “usual starting time” in the 2001 and 2003 Agreements and the “nominal starting time” in the 2005 Agreement.

[19] Because those clauses dealt with starting times the clauses prevailed over the terms of the Award dealing with the same subject matter. With respect to changes to the usual starting time, the 2001 Agreement did not deal with this matter, and the provisions of the Award requiring notice of one week to be given with respect to such changes, prevailed in the absence of a term in the Agreement.

[20] Unlike the 2001 Agreement, the 2003 Agreement contained, within its body, a clause allowing variations to be made to the usual starting time by agreement with the site Consultative Committee (clause 10.7). The 2005 Agreement also contained a clause within its body, which allowed variation to the nominal starting time by midday on the day prior to the change, without payment of penalty, provided that the new starting time was between the hours of 5.30 am and 7.30 am. Terms within the body of the 2005 Agreement also specifically gave the Company the additional ability to change starting times in accordance with the Award, which required one week’s notice of a change to nominated starting times.

[21] The 2001, 2003 and 2005 Agreements each contained a specified starting time for “day shift”. Those agreements did not contain definitions for afternoon or night shift. The Transport, Distribution and Courier Industry - Southern Division (Qld) appended to the 2001 Agreement, provided that the ordinary hours of work for “day workers” could be worked between 5.30 am and 6.30 pm and that the commencing time within that spread could be altered with one weeks’ notice, provided that starting times could be staggered or altered with the agreement of groups of employees or individuals concerned. The 2005 Agreement provided for shift work to be worked and paid in accordance with the Award - then the Transport Workers Award 1998.

[22] In contrast with the earlier Agreements, the 2008 Agreement did not contain a set starting time within the body of the Agreement, and nor did it contain a clause dealing with variations to starting times. However, in 2008, clause 8.7 was inserted into the Agreement in virtually identical terms to clause 8.7 in the 2011 Agreement. The 2008 Agreement had as an attachment, the Transport Workers Award 1998, which provided for the employer to set a start time, and deemed that 7.15 am was the set start time if the employer did not set a start time. That Award also required notice of one week to be given if the set start time was changed.

[23] Unlike earlier Agreements, the 2008 Agreement and later the 2011 Agreement did contain definitions of day, afternoon and night shift (clause 13.2). Relevantly, the definition of day shift in clause 13.2.1 is as follows:

“Day shift means a shift which commences at 05.30 am or later, but finishes at or before 18.30 pm.”

[24] All versions of the Agreement have contained higher rates within the body of each Agreement for certain categories of drivers, in recognition of the fact that they have varying start or finishing times. The 2001, 2003 and 2005 Agreements, which specified starting times for other employees, provided in relation to employees designated as “line haul drivers” that they would be paid additional amounts recognising the varying starting/finishing times which differed from those specified for other employees. These provisions remained in the body of the 2008 and 2011 Agreements, notwithstanding the removal of specified starting times for other employees.

[25] Each of the previous Agreements had overtime provisions in the body of the Agreement which differed in various respects from those found in the body of the attached Awards. The 2001 Agreement provided that overtime may be required to be worked outside the specified shift lengths, and the starting and finishing times. The 2003 Agreement provided that overtime could be worked prior to the usual starting time (clause 10.2). The 2005 Agreement, which provided that start and finish times could be varied within a window between 5.30 am to 7.30 am, defined overtime as time worked before 5.30 am. The 2008 Agreement, which does not contain a specified start time within the body of the Agreement, provided that overtime rates applied to hours in excess of 8 per shift or in excess of 40 hours in one week. The 2008 Agreement also specifies overtime rates for overtime worked Monday to Friday and on Saturdays and Sundays. This definition was maintained in the 2011 Agreement.

[26] The various iterations of the Agreement have contained terms similar to those found in clauses 10.1 and 10.2 of the Agreement, except that the earlier versions of those clauses provided for employees to make contributions to decisions affecting them, and to be consulted (see clause 8.1 and 8.2 of the 2001 Agreement; clause 8.1 and 8.2 of the 2003 Agreement; clauses 11.2 and 11.2 of the 2005 Agreement; and 10.1 and 10.2 of the Agreement.

EVIDENCE AND SUBMISSIONS OF THE TWU

[27] The TWU relies on its written submissions filed on 6 February 2013 and submissions filed in reply, received by the Commission on 28 March 2013. The following witness statements were also filed on behalf of the TWU:

• Witness statement of Mr Peter Ferguson, Organiser, dated 5 February 2013;



• Witness statement of Mr Alan Nightingale, Delegate, dated 5 February 2013; and



• Witness statement in reply of Mr Peter Ferguson dated 27 March 2013.

[28] Mr Ferguson’s evidence was that he was one of the officials responsible for bargaining for the 2011 Agreement. According to Mr Ferguson, in one of the first meetings, it was agreed that the Agreement would be updated to include the Award. 20 Mr Ferguson’s evidence is that employees covered by the 2011 Agreement want a start time set by the Qube Logistics, in accordance with the Agreement. His evidence is that being advised the day before of their starting time is causing hardship to employees of the Respondent particularly in relation to family and carer responsibilities.21

[29] The TWU also relied on the evidence of Mr Alan Nightingale, who has worked as a truck driver for the Qube Logistics since 2007. Mr Nightingale’s evidence is that he normally starts work at 6.00 am and occasionally his starting time varies between 5.00 am and 7.00 am. Mr Nightingale said that variations in his start time are only occasional because he works on the customs contract, and that other employees have far greater variations in start time.

[30] Mr Nightingale also said that up until 2008, employees had a set starting time of 7.00 am. He states that members of the TWU working for Qube Logistics have consistently raised the issue that Qube Logistics changes starting times on a daily basis without proper notice. Mr Nightingale asserts that at no time have employees agreed to not have a set starting time. 22 He states that the overwhelming majority of employees wish to have a set starting time, and the issue has been repeatedly raised with the Respondent. Mr Nightingale also states that employees find it difficult to make arrangements with family including caring responsibilities for their children. He also points to the difficulty managing of fatigue with irregular sleep patterns.

[31] The TWU contends that the terms of the Agreement are not ambiguous. Members of the TWU, (other than Linehaul Laminex Gympie drivers) employed by Qube Logistics, are advised at the end of each shift of their starting time the following day. The TWU contends that employees originally had a set starting time of 7.00 am, and have not agreed to remove the set starting time.

[32] In support of the contention that the 2011 Agreement entitles employees to a set starting time, the TWU points to the provisions relating to Linehaul Laminex Gympie drivers, which provide for a higher rate of pay in exchange for flexible hours, and submits that it is clear that the starting time provisions of the Award apply to all other employees covered by the Agreement.

[33] The TWU tendered the earlier versions of the Agreement, and referred to the history of enterprise agreements preceding the current Agreement, in support of its contention. The TWU submits that 2008 Agreement contained a similar provision providing higher wage rates for Gympie Laminex drivers due to irregular hours. The 2008 Agreement incorporated the Transport Workers’ Award 1998 which provided for the employer to set a starting time and for a default starting time of 7.15 am.

[34] In evidence and submissions in reply, the TWU referred to three other Agreements which cover employees working for Respondent in container parks in Queensland. Those Agreements are as follows:

• P & O Trans Australia (Qld) Pty Ltd - Container Park Agreement 2011.



• P & O Trans Australia (Qld) Pty Ltd - Repairers and Inspectors Agreement 2011.



• Qube Logistics Toowoomba Freight Terminal Container Division Enterprise Agreement 2012.

[35] Each of the other Agreements contains the same first sentence found in clause 8.7 of the 2011 Agreement and each contains provisions which regulate starting times. It is submitted by the TWU that in the other Agreements, the disputed clause is a general “Contract of Employment” clause, and does not override the provisions relating to starting times. The TWU submits that the Contract of Employment clause merely states the general obligations of employees and cannot override a specific provision requiring starting times to be set.

[36] In reply to the contention of Qube Logistics in relation to clauses 9.1.2, 9.1.3, 10.1 and 10.2, the TWU states that none of the clauses specifically relate to set starting times. It is submitted by the TWU that the provisions relating to set starting times were removed from the 2008 Agreement, because the provisions were incorporated as an appendix to the Agreement.

[37] The evidence of Mr Ferguson in reply was that the TWU delegates who were involved in the negotiations for the 2008 Agreement are no longer employed by the Respondent. He states that the current employees of the Respondent have no recollection of an agreement being reached in relation to removing the set starting time provision.

[38] In oral submissions for the TWU, Ms Cerrato pointed to the fact that the provision said by Qube Logistics to over-ride the provisions of the Award with respect to set starting times, are found in all other agreements covering employees of the Company working in container divisions in Queensland. Those other agreements also contain provisions that regulate starting times and those provisions are not inconsistent with clause 8.7 in each of the agreements.

[39] The TWU agrees that up until 2008, there was provision in the Agreements that where the starting time was varied without notice, penalty rates would apply. However the union submits that penalty rates where the starting time was varied were removed from the 2008 Agreement, but the set starting time was not kept in the Agreement because it existed in Appendix A as part of the incorporation of the Award. In response to a question from the Commission, Ms Cerrato, on behalf of the TWU, said that there is no penalty under the Award for not providing a set starting time, and that was part of the reason for the deletion of penalty payments associated with variation of the start time from the Agreement.

[40] It was submitted that TWU members raised the issue of the removal of set starting times before the introduction of the 2008 Agreement or at least at the point it was introduced. It was further submitted that the provisions about line haul drivers in the 2008 Agreement were specifically negotiated for that Agreement, as evidenced by the fact that the arrangements relating to line haul drivers were said to apply specifically to Laminex Gympie rather than Big W and Nestle as specifically referred to in the 2005 Agreement.

[41] The submission for Qube Logistics that the interpretation pressed by the TWU would involve removing flexibility is incorrect, because the employer gained the ability in the 2008 Agreement not to pay penalty rates in circumstances where employees were not given the prescribed notice for change of starting times. Starting time provisions were removed from the 2008 Agreement at the same time as the penalty rates for varying start times.

EVIDENCE AND SUBMISSIONS ON BEHALF OF QUBE LOGISTICS

[42] Mr Fuller’s evidence was that part of his role is to represent the Qube Logistics at negotiations for enterprise agreements. In respect of the 2008 Agreement negotiations, agreement was reached between the parties to remove the set starting time clause and insert a new clause 8.7. It was also agreed that no overtime rates would be payable to employees as a result of the change. The purpose for the change was to retain flexibility in Qube Logistics’ operations in order to remain operationally viable. 23

[43] In respect of the 2011 Agreement, Mr Fuller’s evidence is that the issue of set starting times was raised in the bargaining process. He states that he reinforced that it continued to be unrealistic for the Respondent to have set starting times as market conditions had not changed. His evidence is that it was again agreed that there would be no set starting time, and that clause 8.7 would be “rolled over”. 24

[44] During cross examination, Mr Fuller stated that the Respondent did not have set starting times. He stated that there was a “gentleman’s agreement” that the Company never started drivers after 7.00 am. 25 Mr Fuller also indicated that he thought that prior to the 2008 Agreement commencing, there was requirement for the Respondent to pay penalty rates if drivers were required to start work before 5.00 am.26 Further, Mr Fuller rejected the proposition that it was not specifically agreed in 2008 that starting times would be removed, and said that there were tradeoffs in return for that additional flexibility, involving the Company paying for pre-departure checks conducted by drivers.

[45] Qube Logistics submits that there is no ambiguity in respect of Clause 4 of the Agreement and Clause 25.1 of the Award, and there is no need to refer to extrinsic material in the interpretation of those clauses. Rather, the clauses must be interpreted in accordance with their clear and unambiguous meaning.

[46] It is submitted that clause 25.1 of the Award does not apply to employees of Qube Logistics subject of this dispute, because neither of the following prerequisite conditions set out in Clause 4 of the 2011 Agreement, arise in this case - namely that:

• The 2011 Agreement is not inconsistent with a matter contained in the Award; or



• The 2011 Agreement does not deal with a matter in the Award.

[47] Clause 25.1 of the Award does not continue to apply because it is inconsistent with the intentional flexibilities maintained by the respondent pursuant to clauses 8.7, 9.1.2, 9.1.3, 10.1 and 10.2 of the Agreement, to deliver appropriate service levels and achieve maximum productivity, by not having a set starting time for employees. 27

[48] It is further submitted that the 25.1Award does not apply because clause 8.7 of the 2011 Agreement deals with the matter of set start times and by implication, variations to start times. Clause 8.7 of the 2011Agreement gives Qube Logistics the power to determine the starting time of employees by reference to operational requirements. In this regard it is submitted that clause 8.7 is intended to have the effect that Qube Logistics could retain flexibility in directing employees as to their starting time, and was purposely drafted to retain flexibility.

[49] Qube Logistics also pointed to the facts in existence at the time negotiations for the 2011 Agreement were taking place. Qube Logistics was operating in an extremely competitive environment. The Company’s business revolves around vessel availability and is driven by consumer demand. As such it is essential to maintain flexibility in the Company’s operations.

[50] In oral submissions, Mr Williams on behalf of Qube Logistics pointed to the “evolution of flexibility” evident in the predecessor Agreements as an important part of the context of the 2011 Agreement. The 2001 Agreement was highly inflexible, providing as it did for ordinary hours to be worked between 7.00 am and 3.30 pm. In 2004, the focus was on particular runs and specific hours arrangements for line haul drivers and there was a general statement of principal in clause 10.7 of the 2004 Agreement allowing starting times to be varied by agreement after consultation with employees through the site consultative committee.

[51] In the 2005 Agreement, further flexibility was negotiated which allowed the Company to change starting times by lunch time the day before, within a window of 5.30 am to 7.30 am. There was also a continuation of previous arrangements for specific runs for line haul drivers. It was submitted that by virtue of these arrangements, the issue of starting times no longer existed at this particular operation.

[52] It was further submitted that the negotiations for the 2008 Agreement were critical, because of the inclusion of the new clause 8.7. It was also significant that there is an absence of a clause restricting the operation of clause 8.7, which is a feature of some other agreements covering some of the related businesses of the Respondent. It was further submitted that the parties had deliberately inserted clause 8.7 and removed any reference to notice to change starting times. The 2008 Agreement is also “bristling” with statements of intent in relation to productivity, managerial prerogative and the requirements of customers.

[53] Accordingly, a narrative could be constructed of an employer facing an increasingly competitive environment, and patiently and determinedly negotiating additional flexibility in an area that made a difference to its bottom line - the elimination of downtime. It was submitted that Mr Nightingale’s evidence supported this proposition, in that Mr Nightingale states that there is a general rule that delivery and pick-up times are determined by customer needs and that he has to check each day to determine what his starting time will be the following day. Under the 2005 Agreement Mr Nightingale would have been required to check his starting time at lunch time on the previous day and now has to check his starting time at the end of each shift. That is the only additional flexibility negotiated by Qube Logistics since 2005.

[54] It was also submitted that Mr Nightingale’s evidence on behalf of the TWU establishes that from 2008, the employer started to use the flexibility it had negotiated. Further it was submitted that if the lack of set starting times was a significant issue from 2008, it is unlikely that employees would simply have agreed to roll over clause 8.7 of the 2008 Agreement into the 2011 Agreement. The TWU’s case depends on establishing that somewhere in 2008 or 2011, Qube Logistics gave back all the flexibility it had negotiated since 2001 with respect to starting times, and went back to a position that was less flexible than those it had negotiated in 2005 and 2008.

[55] In 2011, the parties were left with clause 8.7, which provides Qube Logistics with an unqualified right to set starting times. While this provision may appear in other Agreements tendered by the TWU applicable to related operations, those Agreements contain qualifications on the right in clause 8.7 and are not relevant.

[56] In response to a question from the Commission about why it was necessary to leave specific provisions to deal with line haul drivers in the Agreement if Qube Logistics had an unqualified right to change starting times, Mr Williams said that it appeared to be a clause that had been maintained over time, and provided a monetary entitlement rather than dealing with starting times.

[57] According to Qube Logistics, there is no inconsistency between the Award and the 2011 Agreement. The Award requires that the employer set a starting time for each employee rather than a standard starting time for all employees, and goes on to deal with how starting times may be varied. Clause 8.7 of the Agreement deals with the same matter, and does so in a way that is inconsistent with clause 25 of the Award, because it does not contain the same constraint on the employer’s ability to change a starting time.

[58] It was submitted that it would be completely unjust for a finding to be made that in 2008, against all of the flow of history, Qube Logistics surrendered the flexibility it had gained in 2001 to 2005, without even knowing it had done so. This would also be contrary to the unchallenged evidence of Mr Fuller. The outcome sought by Qube Logistics is a sensible one within the overall context of the negotiations for the 2011 Agreement.

CONSIDERATION

[59] The parties submit that notwithstanding that they disagree about the proper construction of the relevant provisions of the 2011 Agreement, those provisions are not ambiguous. I have some difficulty with the assertion that the terms of the 2011 Agreement are not ambiguous, given that the present dispute relates to which of two competing arguments about the effect of those terms should be accepted. However, for the purposes of determining this matter, I accept that submission.

[60] The TWU essentially asserts that the 2011 Agreement is silent in relation to start times, and that clause 25 of the Award (Appended to the Agreement) operates so that the employer is required to fix a regular starting time for each employee, and to give one weeks’ notice of a variation to such starting time.

[61] The following considerations support the construction of the 2011 Agreement asserted by the TWU. There are no provisions in the body of the 2011 Agreement specifying particular starting times for employees, or requiring starting times to be specified. In the absence of such provisions, clause 25 of the Award, appended to the Agreement, operates and requires starting times to be fixed, unless another provision in the body of the Agreement deals with the matter of starting times.

[62] It is arguable that clause 10.7 is a general provision, and consistent with well established principles of construction, a general provision does not derogate from a specific provision such as clause 25 of the Award, appended to the 2011 Agreement.

[63] It is also the case that there are provisions in the body of the 2011 Agreement relating to line haul drivers performing certain work, requiring that higher rates are paid, to recognise that those drivers have irregular start and finish times. These provisions suggest that the same flexibility does not apply with respect to other drivers.

[64] On the other hand, to accept the argument advanced by the TWU, is to ignore the history of the 2011 Agreement. As the fifth agreement in a series of agreements, the 2011 Agreement is a product of history, and regard can be had to that history in the construction of the Agreement. 28

[65] A consideration of the 2011 Agreement in the context of the Agreements that preceded it, favours the interpretation advanced by Qube Logistics. To accept the interpretation advanced by the TWU would require acceptance of the proposition that Qube agreed to a provision in 2008, which wound back flexibility it had negotiated from 2001 to 2005.

[66] The 2005 Agreement contained a provision that allowed the Company to vary starting times within a 5.30 am to 7.30 am window, provided that notice was given by midday on the preceding day. If the contention advanced by the TWU is accepted, the 2008 Agreement removed that flexibility and replaced it with a provision that requires starting times to be fixed for each employee, which can only be changed with one week’s notice.

[67] Such a change would have been significant for Qube Logistics in the context of the terms of the 2005 Agreement with respect to starting times. If the contention advanced by Qube Logistics is accepted, the change for employees was simply that they agreed to remove the set starting time in the 2005 Agreement and to reduce the required notice period to change that starting time so that notice could be given by the conclusion of ordinary work on the preceding day rather than by 12.00 midday on the preceding day. In the context of the 2005 Agreement, such a change for employees brought about by the 2008 Agreement, was not significant, particularly when it is compared to the change the TWU contends was agreed by the Company.

[68] Further, the change contended for by Qube Logistics can be viewed as a natural progression in terms of increasing flexibility for the company from 2005 to 2008, in return for wage increases paid to employees under successive Agreements. Viewed in this way the 2011 Agreement simply maintained the flexibility negotiated as part of the 2008 Agreement.

[69] The interpretation contended for by Qube Logistics is also consistent with the terms of the Agreement read as a whole. It is of significance that clause 4 is framed in a negative rather than a positive way so that the Award appended to the Agreement applies to the extent that the Agreement is not inconsistent or does not deal with a matter. The provision is not framed so that the Award operates to the extent of any inconsistency with the Agreement.

[70] I am also of the view that it is significant that definitions of day shift, afternoon shift and night shift were included in the 2008 Agreement at the same time as the previous 7.00 am starting time was removed. The 2008 and 2011 Agreements do not distinguish between day work and shift work, and the shift definitions in those Agreements are the only parameters they contain with respect to starting and finishing times. In my view, the inclusion of the shift work definitions lends support to the proposition that the parties agreed in the negotiations for the 2008 Agreement to increased flexibility with respect to starting times and that this was one of the matters that they were negotiating about.

[71] Further, I am of the view that the way that overtime provisions are framed in the 2008 and 2011 Agreements is consistent with the flexibility in relation to starting times that Qube Logistics maintains was agreed to in 2008, and continued in 2011. It is significant that both the 2008 and 2011 Agreements do not include time worked before the ordinary starting time within the definition of overtime. Rather overtime is defined by reference to the length of the shift.

[72] Mr Fuller’s evidence of the “gentleman’s agreement” that drivers are not required to start work after 7.00 am, and that there was a practice, prior to the 2008 Agreement, whereby overtime was paid for work before 5.00 am, is also consistent with the proposition that the parties were negotiating about flexible start times. Under the 2005 Agreement, Qube Logistics was entitled to change starting times or give employees a new starting time, provided that this occurred within a window between 5.30 and 7.30. The inclusion of the shift work definitions in the 2008 and 2011 Agreements, and particularly the day shift definition, is consistent with the flexibility with respect to starting times which Qube Logistics maintains that the 2008 and 2011 Agreements provide for.

[73] I raised the proposition with the parties during the hearing that the definition of day shift in the 2011 Agreement, may prevent employees from being required to start work before 5.30 am. In response to this question, Mr Williams for Qube Logistics said that his instructions were that the instances of employees being required to start work before 5.30 am were very rare. Mr Williams also pointed out that this issue travelled beyond the parameters of the dispute before the Commission, and submitted that it was an issue about payment for such work rather than an issue relating to starting times. I accept that submission.

[74] I am also of the view that the continued inclusion in the 2008 and 2011 Agreements of the specific provisions in relation to line haul drivers, is not a determinative factor in favour of the interpretation advanced by the TWU. While the specific provisions about flexible start times for line haul drivers suggest that no such flexibility exists for other employees, it is equally probable that those provisions were simply rolled over from previous agreements, after flexible start times had been negotiated for other employees, because they provided for higher rates for line haul drivers. It was submitted for Qube Logistics that the work performed by line haul drivers is more onerous than that performed by other drivers, and involves closing twist locks on containers and using dogs and chains. No issue was taken by the TWU with this submission notwithstanding an invitation during the hearing to ask further questions and/or comment on the matter.

[75] There is also direct evidence and uncontested evidence from Mr Fuller, that the issue of set starting times was raised in the negotiations for the 2011 Agreement, and that Qube Logistics took the position that it was unrealistic to have set start times because market conditions had not changed since set start times were removed in the negotiations for the 2008 Agreement. Mr Fuller also said that it was agreed in the negotiations for the 2011 Agreement that there would be no set starting times, and the provisions of the 2008 Agreement, including clause 8.7 were simply rolled over to give effect to that agreement. Further, Mr Fuller said that there were tradeoffs for the additional flexibility, in that the Company commenced to pay for pre-departure checks conducted by drivers.

[76] Mr Fuller’s evidence is not relevant to the extent that it goes to the intent of Qube Logistics in removing the set start time provisions from the 2005 Agreement. However, that evidence is relevant to establish what the parties were negotiating about in the negotiations for the 2008 and 2011 Agreements.

[77] There was also evidence from Mr Nightingale that Qube Logistics commenced to use the flexibility it had negotiated with respect to start times, at or around the time that the 2008 Agreement came into operation. As Mr Williams points out, if the provisions about flexible start times negotiated in 2008 were causing disputation or concern during the period of operation of the 2008 Agreement, it is improbable that the same provision would have simply been rolled into the 2011 Agreement, and that practices started in 2008 would have continued into the period of operation of the 2011 Agreement.

[78] The proposition that the parties were negotiating about flexibility with respect to starting times in 2008, is also supported by the evidence of Mr Nightingale, who accepted that delivery and pick up times are determined by customer requirements.

[79] I accept that there are agreements relating to other operations of Qube Logistics which contain a provision in identical terms to clause 8.7 of the 2011 Agreement subject of these proceedings. However, in my view, the terms of other Agreements are of limited relevance in this case because it turns on the specific circumstances applying to the employer and employees covered by the 2011 Agreement, and the context and history of that Agreement.

CONCLUSIONS

[80] For the reasons set out above, I am satisfied, on balance that the 2011 Agreement provides for flexible start times for employees, and that the Agreement deals with this matter to the exclusion of the Award. In my view such an interpretation is consistent with the principles applicable to construction of industrial instruments.

[81] This dispute illustrates the unfortunate result of the practice of rolling the provisions of earlier agreements over, without considering the interaction of those provisions with other terms of the agreement. It also illustrates the difficulties which can arise when the terms of Awards are incorporated into agreements without consideration of the interaction between the agreement and the incorporated provisions. These difficulties are heightened in circumstances such as those applying in the present case, when the Agreements and the incorporated awards have themselves undergone significant change.

[82] The interpretation I favour considers the disputed clauses within the context of the Agreement as a whole and is consistent with the practical purpose of the clause. I am also of the view that when the competing arguments about the construction of the clause are considered, it is more probable than not that the parties who negotiated the 2011 Agreement were negotiating about enhancement and maintenance of flexibility with respect to starting times that they had been implementing since 2001.

[83] The context in which the Agreement was negotiated and the matrix of facts established by the evidence, is also consistent with the intention of maintaining and enhancing flexibility. It is clear that the disputed clause is a product of history, and to adopt the narrow and literal meaning contended for by the TWU would be contrary to that history.

[84] Accordingly, I have concluded that the answer to the question - Are employees of Qube Logistics Pty Ltd working under the P&O Trans Australia (QLD) Pty Ltd - FCL Container Park and Transport Enterprise Agreement 2011 entitled to a set start time? - is No.

DEPUTY PRESIDENT

Appearances:

M. Cerrato for the Applicant.

D. Williams for the Respondent.

Hearing details:

2013.

8 April.

Brisbane.

 1   MA000038

 2 [2011] FMCA 225. See also the decision of Ives DP in The Australian Workers’ Union v Visy Board Pty Ltd t/as Visy Specialities 4 October 2005 PR963418.

 3   Ibid at [40], [42].

 4   Re Clothing Trades Award (1950) 68 CAR 597.

 5   Bond & Co Ltd (in liq) v McKenzie (1929) 28 AR (NSW) 499; Hancock SDP in Public Transport Corporation of Victoria v Australian Rail, Tram and Bus Industry Union (Hancock SDP, 16 February 1995, Print L9550].

 6   Australian Workers’ Union v Abbey (1939) 40 CAR 494.

 7   Avondale Motors (Parts) Pty Ltd v Federal Commissioner of Taxation [1971] HCA 17; (1971) 45 ALJR 280 at 283.

 8   Australian Timber Workers’ Union v W Angliss and Co Pty Ltd (1924) 19 CAR 172.

 9   Australian Municipal, Administrative, Clerical & Services Union v Treasurer (Cth) (1998) 82 FCR 175 ; 80 IR 345.

 10   Kucks v CSR Ltd (1996) 66 IR 182 at 184 per Madgwick J.

 11   Ibid.

 12   Ibid.

 13   Ibid.

 14   Australasian Meat Industry Employees Union (WA Branch) v Woolworths Ltd [2007] FCAFC 201; (2007) 164 FCR 420;] [2007] FCAFC 201 at [21] per Siopis J.

 15   Finance Sector Union v Commonwealth Bank (2001) 106 IR 172; [2001] FCA 335.

 16   Australasian Meat Industry Employees Union (WA Branch) v Woolworths Ltd (2007) 164 FCR 420] ; [2007] FCAFC 201 at [19]–[21] per Siopis J; Van Efferen v CMA Corporation Ltd [2009] FCA 597 at [37].

 17   Short v F W Hercus Pty Ltd, (1992-193) [1993] FCA 51 ; (1993) 40 FCR 511 at 518.

 18   Ibid at [7]

 19   Short v Hercus op. cit.

 20 Witness Statement of Mr Peter Ferguson dated 5 February 2013, Exhibit 1, at [9].

 21   Ibid at [15]

 22 Witness Statement of Mr Alan Nightingale dated 5 February 2013, Exhibit 2, at [15].

 23   Witness statement of Darren William Fuller, Exhibit 4, at [10]-[11].

 24 Ibid at [16].

 25   PN53

 26   Ibid.

 27 Respondent submissions dated 1 March 2013, at [52].

 28   Short v Hercus op. cit.

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