[2019] FWC 6201

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Transport Workers’ Union of Australia
v
Toll Transport Pty Ltd T/A Toll Global Express
(C2019/2937)

DEPUTY PRESIDENT BEAUMONT

PERTH, 23 DECEMBER 2019

Alleged dispute in relation to Toll Global Express Services

[1] This decision concerns an application made by the Transport Workers’ Union of Australia (TWU) under s 739 of the Fair Work Act 2009 (Cth) (Act) for the Commission to deal with a dispute in accordance with the dispute settlement procedure in cl 15 of the Toll-TWU Enterprise Agreement 2017-2020 (Agreement). 1 Toll Transport Pty Ltd T/A Toll Global Express (Toll) is the named respondent.

[2] Toll operates a depot in Hazelmere, Western Australia, that receives and dispatches freight (the Hazelmere Depot). The employees that are covered by the Agreement include a range of Transport Workers, namely - pick up and delivery drivers (drivers), freight handlers, and forklift drivers. 2 It appears that the majority of freight handlers on the morning shift are employed on a casual basis and, for the most part, drivers are employed on a full-time permanent basis.

[3] Before February 2016, the drivers and freight handlers commenced work around 5:00 am and the drivers, alongside the freight handlers, would pick, pull or sort boxes and parcels as they came off the conveyor (referred to at hearing as the automated sortation system, sortation system or conveyor system), sorting the boxes into the adjacent bays of the various vehicles. This work was overtime work for the drivers, who were primarily engaged to drive. There was dispute over whether the drivers were undertaking this work practice on a permanent or trial basis.

[4] Effective February 2017, there was a roster change that resulted in the drivers starting work later than the freight handlers. This change did not impact the ordinary hours of the drivers, but it did mean that the drivers would no longer pick and sort the boxes and parcels from the sortation system. Consequently, the drivers saw a reduction in their rostered overtime (from three to five hours a shift to two to three hours a shift).

[5] The dispute between the parties turns on the interpretation of cl 18(a) of the Agreement. The Agreement came into operation on 15 December 2017, and included the contentious clause titled ‘Full utilisation of permanent Transport Workers’; that clause states:

(a) Permanent Part-time Transport Workers/Owner-Drivers, Casual Transport Workers/Owner Drivers and Outside Hire will not be engaged to reduce the overtime hours available for full-time permanent Transport Workers/Owner Drivers.

[6] The parties agreed that the dispute could be resolved by the Commission determining the following question:

Whether the engagement of casual Transport Workers to undertake handling duties at the Hazelmere dept was ‘to reduce the overtime hours available’ for full-time drivers, in contravention of clause 18(a) of the 2017 Agreement.

[7] In effect, the dispute can be characterised as, and is reducible to, a dispute about the interpretation of cl 18(a) and the extent of the constraint which is imposed upon Toll in relation to its engagement of persons falling within three categories of worker, namely: permanent part-time workers, casual workers or outside hire, where those workers are engaged to reduce overtime hours available for full-time permanent Transport Workers.

The dispute and power of the Commission to arbitrate the dispute

[8] In its written submissions, Toll submitted that the Commission should not proceed to arbitrate the dispute. Its reasoning was that the Commission could determine whether there was a breach of cl 18(a) as part of the exercise of arbitrating the dispute, but its role could not be to determine that question as an exercise of judicial power. This issue was not ventilated further at hearing, notwithstanding that I expressed that it was common ground that the Commission was authorised by the terms of the Agreement to arbitrate the ‘dispute’.

[9] The Agreement states that the word ‘Dispute’ means:

… any dispute or grievance that arises at the workplace between a Transport Worker or Transport Workers and Toll, or between the Union and Toll, about the NES or the interpretation or application of this Agreement or in relation to any matters pertaining to the relationship between Toll and a Transport Worker (or Transport Workers), or that between Toll and the Union, including but not limited to a dispute about any condition of employment or industrial matter.

[10] It was not contended by either party that there was not a ‘dispute’, and it was agreed that the matter was unable to be resolved through conciliation. Consequently, the TWU pressed to have its application proceed to arbitration. Clause 15(d) is therefore relevant, and provides:

[I]f the Dispute is not resolved in conciliation conducted by the FWC, the FWC will proceed to arbitrate the Dispute and/or otherwise determine the rights and/or obligations of the parties to the Dispute. In relation to such an arbitration:

(i) The FWC may give all such directions and do all such things as are necessary for the just resolution of the Dispute. The FWC may exercise powers of conciliation, arbitration and declaratory relief in relation to the Dispute, including all related procedural powers such as those in relation to hearings, witnesses, evidence and submissions.

(ii) The FWC should apply the rules of evidence that would ordinarily apply to a hearing before the FWC under the Act.

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

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

[11] Toll’s written submissions referred to the High Court decision in Re Cram and Others, 3 (Cram) in which the High Court distinguished between arbitral and judicial power. To explain the difference between the two, the High Court initially referred to a claim for the payment of wages, which was pertinent in the circumstances of Cram. It was said that a claim for the payment of wages due and payable by an employer to an employee is a claim for the enforcement of an existing legal right. Likewise, a claim for the enforcement of a provision in an award for the payment of wages to an employee is also a claim for the enforcement of an existing legal right which necessarily involve the exercise of judicial power.4

[12] The High Court in Cram expressed that the power of judicial determination includes ‘the giving of decision in the nature of adjudications upon disputes as to rights or obligations arising from the operation of the law upon past events or conduct’. 5 It continued:

[T]he making of a binding declaration of right is an instance of the exercise of judicial power. It stands outside the arbitral function. But there is no substance in the suggestion that an industrial tribunal cannot interpret laws, awards and other legal instruments. A tribunal could not discharge its arbitral functions if it were unable to form an opinion on a matter of interpretation. The formation of views and opinions on matters of interpretation in arbitral proceedings does not in itself amount to a usurpation of judicial power. 6

[13] It should be clarified that an arbitral function includes the determination of a dispute relating to past transactions, events and conduct. 7

[14] The Agreement, through its dispute procedure set out above, vests a power of dispute resolution in the Commission by way of private arbitration. The powers of the Commission with respect to private arbitration have been the subject of several decisions. In Maritime Union of Australia and Australian Plant Services 8 the powers of the Commission under s170LW of the Workplace Relations Act 1996 were discussed by Lacy SDP. His discussion was in the context of the High Court judgment in Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission (and Ors)9 (known as ‘the Private Arbitration Case’). Lacy SDP stated:

[56] Section 170LW is essentially a replication of s 170MH of the Industrial Relations Act 1988 (IR Act) as inserted by the Industrial Relations Act Reform Act 1993. It authorises the Commission to `settle disputes over the application of [an] agreement'. [Private Arbitration Case, par. 22] And, like its IR Act predecessor, it authorises the Commission, under agreed dispute resolution provisions that have been incorporated into a certified agreement, to exercise a power of private arbitration and make decisions as to the legal rights and liabilities of the parties to the agreement. [Private Arbitration Case, par.32] There is an important distinction between a power of private arbitration to make decisions as to the legal rights and liabilities of parties to an agreement and judicial power to determine rights and liabilities. In making decisions as to the legal rights and liabilities of the parties, where parties agree to submit their differences for decision by a third party, the decision maker does not exercise judicial power, but a power of private arbitration. The High Court emphasised this distinction in the Private Arbitration Case in the following way:

`Where parties agree to submit their differences for decision by a third party, the decision maker does not exercise judicial power, but a power of private arbitration. Of its nature, judicial power is a power that is exercised independently of the consent of the person against whom the proceedings are brought and results in a judgment or order that is binding of its own force. In the case of private arbitration, however, the arbitrator's powers depend on the agreement of the parties, usually embodied in a contract, and the arbitrator's award is not binding of its own force. Rather, its effect, if any, depends on the law which operates with respect to it.' [Private Arbitration Case, par 31]

[57] An important limitation on the Commission's powers under s 170LW is the kind of disputes that may be subject to resolution by the Commission. Parliament has authorised the Commission to exercise powers under an agreement `to settle disputes over the application of the agreement' and, accordingly, its powers are limited to disputes of that kind. Therefore it is necessary for the Commission, in each case where it is asked to deal with a matter arising under the dispute settling procedure in an agreement, to ascertain the character of the dispute that is before it in order determine whether the matter is a dispute over the application of the agreement. [Qantas Airways Limited v Australian Municipal, Administrative, Clerical and Services Union, Print T0301, par.24] And, importantly, the character of the dispute is distinguishable from the orders that may be made in settlement of the dispute. [ibid, par 25, see also the Private Arbitration Case at par 36.]

[58] In exercising its powers under s 170LW as authorised by an agreement, the Commission is performing a function that is conferred on it by the Act. As such it falls within the functions identified in s 89(b) of the Act and described as `such other functions as are conferred on the Commission by this or any other Act'. This is in contrast to the functions of the Commission under s 89(a)(i) and (ii), namely `to prevent and settle industrial disputes ... by conciliation and ... arbitration.' The procedures encompassed by s 170LW, in conjunction with appropriate relevant grievance procedures, are designed to ensure that the agreement made in settlement of the dispute is effective and enduring [see R v Hegarty; Ex parte City of Salisbury (1981) 147 CLR 617, 629; and the Private Arbitration Case, at par 32]. [My emphasis]

[15] The opinion of Lacy SDP remains apposite in respect of the approach reflected in other decisions of the Commission. 10

[16] The dispute before me is confined under the terms of the Agreement to a controversy between the proper application of the Agreement in certain circumstances. In this respect, I am not required to rectify a past breach of the Agreement itself, but am required to interpret cl 18(a). The Agreement empowers me to do that which the Agreement prescribes in relation to the dispute clause. That the power is not one that goes beyond the constitutional limitations of the power of an administrative tribunal, for the purposes of the current dispute.

The Agreement

[17] The Agreement applies and is binding on Toll, all ‘Transport Workers’ and the Union. 11 The definitions clause of the Agreement explains that a ‘Transport Worker’ means any person who is eligible to be a member of the Union and who is employed by Toll in Australia in any of the classifications contained in the ‘Award’ or in the ‘Local Agreements’ that apply at the site at which the person is, or is to be, employed.12

[18] The word ‘Award’ is defined as: (i) the Road Transport and Distribution Award 2010 (RTD); 13 and (ii) the Road Transport (Long Distance Operations) Award 2010 (RTLD).14 Regarding the definition of Transport Worker, Schedule C of the RDA and Schedule A of the RTLD elucidate the classification structure for Transport Workers, delineating the various grades by reference to duties performed or ‘position title’.

[19] Schedule C of the RTD consists of ten grades of ‘Transport Worker’ as follows:

Transport worker grade	Classification
1	General hand:
greaser and cleaner, yardperson, vehicle washer and detailer, motor driver’s assistant/furniture removers’ assistant
Loader—other than freight forwarder
Courier—foot or bicycle
2	Loader—freight forwarder
Tow motor driver
Driver of a rigid vehicle (including a motor cycle) not exceeding 4.5 tonnes gross vehicle mass (GVM)
3	Driver of a fork-lift up to and including five tonnes lifting capacity
Driver of a two—axle rigid vehicle on any other rigid vehicle exceeding 4.5 tonnes, but not exceeding 13.9 tonnes gross vehicle mass (GVM) unless by special permit or registration such vehicle may be up to 15 tonnes gross vehicle mass (GVM)
Driver of a concrete mixer up to and including two cubic metre bowl
Distribution facility employee level 1
4	Driver of a three—axle rigid vehicle exceeding 13.9 tonnes gross vehicle mass (GVM)
Driver oil tractor
Radio operator
Driver of fork-lift with a lifting capacity in excess of five tonnes and up to and including 10 tonnes
Weighbridge attendant
Driver of a straddle truck
Driver of a concrete mixer over two cubic metre bowl and up to 4.9 cubic metre bowl
Crane chaser/dogger
Distribution facility employee level 2
5	Driver of a fork-lift with a lifting capacity in excess of 10 tonnes and up to 34 tonnes
Driver of a rigid vehicle with four or more axles and a GVM exceeding 13.9 tonnes
Driver of a rigid vehicle and heavy trailer combination with three axles and a GCM of 22.4 tonnes or less
Driver of a concrete mixer with five cubic metre bowl and over
6	Driver of a rigid vehicle and a heavy trailer combination with more than three axles and a GCM greater than 22.4 tonnes up to and including 53.4 tonnes
Driver of a mobile crane lifting up to and including 25 tonnes
Driver of an articulated vehicle with more than three axles and a GCM greater than 22.4 tonnes
Driver of a low loader with a GCM up to and including 43 tonnes
Driver of a fork-lift with a lifting capacity over 34 tonnes
Transport rigger
7	Driver of a double articulated vehicle up to and including 53.4 tonnes GCM—including B—Doubles
Driver of a low loader with a GCM exceeding 43 tonnes
When driving a low loader for each additional complete tonne over 43 tonnes GCM an extra 0.18% of the standard rate (as part of the weekly rate for all purposes) will be payable
Provide that no load will exceed the limit prescribed by or under any State or Territory Act
Distribution facility employee level 3
8	Driver of a mobile crane with a lifting capacity in excess of 25 tonnes and up to 50 tonnes
Driver of a rigid vehicle and trailer(s) or double articulated vehicle exceeding 53.4 tonnes GCM including B—Doubles
Driver of multi-axle platform trailing equipment with a carrying capacity up to and including 70 tonnes capacity
9	Driver of a mobile crane with a lifting capacity in excess of 50 tonnes
Driver of a gantry crane
Driver of a rigid vehicle with trailer combinations or articulated vehicle with trailer combinations exceeding 94 tonnes GCM
Distribution facility employee level 4
Aerodrome attendant
10	Driver of a multi-axle platform trailing equipment with a carrying capacity in excess of 70 tonnes and up to and including 100 tonnes or each additional 10 tonnes or part thereof in excess of 100 tonnes an extra 2.18% of the standard rate (as part of the weekly wage rate for all purposes) up to 150 tonnes will be payable
For each additional 10 tonnes or part thereof in excess of 150 tonnes an extra 2.09% of the standard rate (as part of the weekly wage rate for all purposes) up to 200 tonnes will be payable
For work performed in excess of 200 tonnes and up to 300 tonnes an additional payment of 2.04% of the standard rate (as part of the weekly wage rate for all purposes) to be added to the 200 tonnes rate

[20] Schedule A sets out the classification structure for the RTLD. It provides:

Grade	Description
1	Driver of two axle rigid vehicle up to 13.9 tonnes GVM. Capacity up to eight tonnes.
2	Driver of three axle rigid vehicle over 13.9 tonnes GVM. Capacity over eight and up to 12 tonnes.
3	Driver of four axle rigid vehicle over 13.9 tonnes GVM. Driver of rigid vehicle and heavy trailer combination with GCM of 22.4 tonnes or less. Driver of articulated vehicle with GCM of 22.4 tonnes or less. Capacity over 12 tonnes.
4	Driver of rigid vehicle and heavy trailer combination with GCM over 22.4 tonnes but not more than 42.5 tonnes. Driver of articulated vehicle with GCM over 22.4 tonnes. Driver of low loader (as defined) with GCM of 43 tonnes or less. Capacity up to 24 tonnes.
5	Driver of rigid vehicle and heavy trailer combination with GCM over 42.5 tonnes but not more than 53.4 tonnes. Driver of double articulated vehicle with GCM 53.4 tonnes or less (includes B-doubles). Driver of low loader (as defined) with GCM over 43 tonnes.
6	Driver of rigid vehicle and trailer(s) or double articulated vehicle with GCM over 53.4 tonnes (includes B-doubles). Multi-axle trailing equipment up to 70 tonnes capacity.
7	Driver of road train or triple articulated vehicle exceeding 94 tonnes GCM.
8	Multi-axle trailing equipment.

[21] The term ‘Local Agreement’ is defined as the enterprise agreements, workplace agreements, certified agreements and other arrangements listed in Part B, together with any agreement made pursuant to cl 8.3. A copy of the relevant Local Agreement was not provided during the hearing. However, the parties confirmed that the content of the Local Agreement had no bearing on the definition of full-time permanent Transport Worker. Further, Toll submitted that the Local Agreement did not enshrine a right to rostered overtime.

[22] Section 1 of the Agreement, titled ‘Application and Operation’, includes an ‘Objects’ clause. That clause reads that the objects of the Agreement include:

a) enhancing the safety and fairness of Toll’s operations;

b) promoting job security, skills development and recognition, effective workplace representation and training for Transport Workers;

c) maintaining the safety net and enhancing fair working conditions for Transport Workers;

d) enhancing the productivity, efficiency, profitability, viability and sustainability of Toll’s operations; and

e) subject to reasonable practical requirements, such as adequately servicing industry peaks, promoting job security through the full utilisation of full-time permanent Transport Workers before the engagement of part-time, casual, labour hire or outside hire workers;

f) enhancing job security and the sustainability of Toll’s operations by promoting safe and fair conditions for all workers in the industry;

g) supporting diversity in the workplace; and

h) ensuring that Transport Workers are protected from the importation of substandard labour practices by establishing a cooperative framework to discuss, among other things, international labour standards in Toll operations.

[23] Section 3 of the Agreement is titled ‘Employment Relationship’. It commences with the Toll Values which are:

a) integrity and trust;

b) safety;

c) continuous improvement;

d) teamwork; and

e) being open and transparent.

[24] Following the Values is Toll’s commitment to job security in cl 17. At hearing, the TWU referred to clauses 17(a) and (b), which read:

The Parties recognise that job security is an important issue for Transport Workers. For its part, Toll commits:

(a) to the full-time engagement of its Transport Workers wherever possible;

(b) subject to reasonable practical requirements, such as adequately servicing industry peaks, to promote job security through the full utilisation of full-time permanent Transport Workers/Owner-Drivers before the engagement of part-time Transport Workers/Owner Drivers, or casual Transport Workers/Owner-Driers or Outside Hire…

[25] The contentious clause, cl 18(a) borrows the wording of cl 17(b) and is titled ‘Full utilisation of permanent Transport Workers’, it states:

(b) On Saturday and Sunday Toll will offer overtime hours to full-time permanent Transport Workers/Owner-Drivers before engaging Permanent Part-Time Transport Workers/Owner-Drivers, casual Transport Workers/Owner-Drivers or Outside hire to perform that work.

Background

Employment

[26] Mr Wayne Warwick, Branch Manager of Toll Express Parcels, explained that freight handlers were classified as level 2 under the RTD. 15 The drivers and forklift drivers were a level 3 classification under that same award.16

[27] Mr Warwick confirmed that at the time of preparing his witness statement there were three full-time freight handlers, two part-time and 11 casual. 17

[28] According to Toll the dispute between the parties was the sequel to an earlier dispute arising out of the same subject matter. That earlier dispute came about because of a change to the roster for drivers at the Hazelmere Depot. This change was announced in 2016. The impact of the proposed change was that there would be a separation between the start times of the drivers and the freight handlers, such that the drivers would start later than the freight handlers.

[29] The later start meant the drivers would no longer be involved in the sorting duties, namely the picking of the boxes and parcels from the conveyor or sorting system, into the bays of the vehicles. Their duties would be to undertake loading and driving, and the casual freight handlers would continue to perform the sorting duties from 5:00 am until 9:00 am. The impact of the change was a reduction in overtime for the full-time permanent drivers, albeit full-time ordinary hours would not change.

[30] Attached to Mr Warwick’s witness statement was a de-identified letter of offer and job description for a full-time driver. The job description identified that the overall purpose of the job of driver is:

To represent Toll IPEC in a professional manner while picking up freight from customers and delivering to customers. To ensure freight is securely loaded and unloaded, and lifted/transported in accordance with depot safety regulations. To optimise the productivity of the fleet for deliveries and pick-up in a manner that ensures we meet our customers’ expectations of a quality service, both with time expectations and vehicle size. The role requires strict adherence to scanning and Proof of Delivery procedures and safe and law abiding driving practices. The PUD driver is expected to understand and respect Toll IPEC’s OH&S policies and procedures. 18

[31] The parties acknowledged that there was no dispute that the drivers were able to undertake that picking and sorting work. Toll acknowledged that the drivers had the requisite skills and capabilities to do so.

[32] Similarly, Mr Warwick’s witness statement included an attached de-identified letter of offer, and job description, for a casual freight handler. 19 The job description identified that the overall purpose of the job is:

[T]his position is critical to the quality of service offered by Toll IPEC. Freight handlers play a key role in making sure freight is sorted, loaded, unloaded or held in a manner that ensures efficient and effective service to customers and other staff within Toll IPEC’s network. 20

The general process of handling and loading of freight

[33] Mr Warwick’s evidence was to the effect that most freight arriving at the Hazelmere Depot came from the Eastern States via rail. 21 That freight consisted of cartons, palletised freight, unsortables and garment on hanger (fashion).22 While most of the descriptors are self-explanatory, the term ‘unsortables’ referred to freight unable to be sorted through the automated sortation system.23 It was therefore delivered to the drivers’ bays by hand or by forklift.24 The palletised freight also arrived to the drivers’ bays by forklift.25

[34] Sortable cartons made up the majority of the freight volume. 26 This freight is processed through the sortation system which delivers it to the drivers’ area of the depot.27 Here freight is removed from the sortation system and placed in the individual driver’s bay for loading onto the vehicle.28

[35] The sortation system allows Toll to sort approximately 5000 cartons per hour. 29 The freight handlers unload the parcels or containers that have arrived to the Hazelmere Depot and place them on one end of the sortation system.30 Each parcel or carton has a label on it with a barcode, which the sortation system reads and then dispatches the parcel to the relevant part of the Hazelmere Depot.31

[36] According to Mr Warwick, when Toll moved to the Hazelmere Depot in 2011, the daily average volumes were as many as 25,000 items through the sortation system during the morning sorting shift whereas now the figure sat around 15,000 items. 32

Developments regarding work organisation at the Hazelmere Depot

MrWarwick’s evidence

[37] In 2013, Toll introduced a night shift for the purpose of having available workers to unload pallets. Two permanent full-time employees were engaged. 33 Mr Warwick’s evidence was that with more freight arriving to the Hazelmere Depot by rail, Toll was able to make the night shift larger and more palletised work was done on that shift to get the freight to drivers earlier in order to improve efficiency and service.34 He continued that with the additional staff on the night shift, the additional hours allowed the freight to be sorted and presented to the drivers earlier than if there was no night shift.35

[38] Mr Warwick stated that in the morning the sortation system ran for 3-4 hours based on inbound volume. 36 The majority of freight handlers would finish their shift immediately after morning sortation, while a minority would stay back for specific tasks such as palletising freight to be moved to the bulk area.37

[39] Before August 2016, both freight handlers and drivers started work at 5:00 am, albeit start times would vary according to the volume of freight on a particular day. 38 The majority of drivers would depart the depot between 8:00 am-9:00 am to perform their driving duties.39

[40] Mr Warwick said that before August 2016, the freight handlers were primarily responsible for loading parcels and cartons onto the sortation system, sorting garment on hanger, sorting the unsortables, and taking freight of the sortation system to be placed and sorted into the drivers’ bays. 40 Mr Warwick stated that the primary responsibility of drivers in the morning, in addition to driving, was to load the freight from their bay into their truck.41

[41] Mr Warwick acknowledged that on occasion drivers assisted by taking freight off the sortation system if they were waiting for freight to load into their trucks. 42 However, according to Mr Warwick this was not a core part of their duties and only represented a minor part of the freight handling work.43

[42] An observation was made by Mr Warwick that ‘we had noticed for some time that this was an unproductive system, for at least two reasons’. 44 It is not clear from the reference to ‘we’ who Mr Warwick was referring to. Nevertheless, Mr Warwick stated that the driver assistance regarding the pulling of parcels and boxes from the sortation system was not uniform, meaning not all the drivers dedicated their time between signing on and commencing driving, to this task.45 The second reason Mr Warwick referred to was the point that the handling duties did not end by the time the drivers commenced their driving duties.46

[43] According to Mr Warwick, at one stage there was a trial to utilise drivers to do freight handling work in order to reduce the handling workforce. 47 The trial was short lived due to, what Mr Warwick described as, a reluctance on behalf of the drivers to do the handling work.48 However, Mr Warwick did observe that the main issue was that when drivers left for their primary driving duties, there were insufficient freight handlers to run the sortation system and finish the shift.49

Mr Nichol’s evidence

[44] The TWU’s account differed in respect of the role of drivers regarding pulling from the sortation system. Mr Nichols, a previous employee of Toll and now an organiser with the TWU, gave a detailed account of his own pulling and sorting experience. Mr Nichols said that he worked for Toll at the Hazelmere Depot from 2011 until resigning from his position in December 2018. He had been employed as a Transport Worker Grade 3 – a driver.

[45] Mr Nichols stated that as a driver he generally commenced his working day at 5:00 am. 50 This was the case, he said, for approximately 110 full time Transport Workers who commenced work between 5:00 am and 6:00 am.51 The purpose of starting at that time was to complete relevant sorting, unpacking and unloading duties prior to commencing driving duties.52

[46] Mr Nichols acknowledged that when he commenced his shift there were also casual Transport Workers whose duties were to generally unload containers and assist in the containers being placed on the ‘belt’, presumedly the sortation system, for sorting and unload. 53

[47] According to Mr Nichols, all full-time drivers were required to pull freight from the conveyor belt in 20-minute rotations. A typical rotation would be:

a) 20 minutes at the conveyor belt pulling freight;

b) 20 minutes loading your own vehicle; and

c) 20 minutes assisting other drivers in the sorting of their freight into their delivery bays for loading into their vehicles. 54

At the end of each rotation, a driver would then return to the first task and start the rotation again.

[48] The rotation would continue, stated Mr Nichols, until 9:00 am or until the conveyor belt stopped, which ever occurred first. 55 After this occurred, the drivers would commence their driving duties.56

Dispute notification to the Commission

[49] Mr Nichol’s gave evidence that on 30 August 2016, he received correspondence from Toll advising of a planned separation of start times for Transport Workers with different primary duties. 57 The reason provided for the change was cited as ‘the operational requirements of the business’.58 Mr Nichol’s evidence was that the matter was escalated to relevant management personnel of Toll, who were notified that they were in breach of the full utilisation clause (cl 17(b)) of the Toll-Group-TWU Enterprise Agreement 2013-2017 (2013 Agreement). Whilst there appears to have been correspondence from the TWU to Toll concerning the issue, and discussions between the TWU and Toll, the issue remained unresolved and the matter was formally placed in dispute with the Commission (2017 Dispute Application).

[50] Mr Nichol’s evidence was that, with regard to the 2017 Dispute Application, a conference was held between the parties. 59 During the course of discussions in February 2017, an agreement was reached that the TWU representatives who were present at the conference would commit to a trial of the change in start time for the drivers commencing on 20 February 2017.60

[51] Come 29 March 2017, Mr Nichols participated in the first TWU caucus meeting for the negotiation of the 2017 Agreement as the Toll IPEC WA representative. 61 He said that at the meeting, he advised the then National Assistant Secretary of the National Office of the TWU of matters concerning the Hazelmere Depot in respect of the full utilisation clause of the 2017 Agreement and the change in start time for drivers.62 Mr Nichol’s evidence was that it was agreed that the TWU would attempt to deal with the full utilisation issue by way of negotiation of appropriate provisions in the 2017 Agreement.63

The negotiation of the 2017 Agreement

[52] Mr McIntosh, the National Assistant Secretary of the TWU, gave evidence regarding his involvement in the negotiations for the 2013 Agreement and the 2017 Agreement. Concerning the negotiations for the two agreements, Mr McIntosh noted that the negotiations were led by the then National Assistant Secretary, a Mr Kaine, and his role was to assist Mr Kaine in the negotiation process. 64

[53] Mr McIntosh gave evidence along the lines of Mr Nichols that during the TWU caucus meeting on 29 March 2017, at which he was present, it was agreed that the matter, namely the full utilisation provisions, would be raised during the course of negotiation for the 2017 Agreement. 65 Consequently, the issue was included in the TWU’s log of claims for the 2017 Agreement.66

[54] Mr McIntosh gave detailed evidence regarding the negotiation of the 2017 Agreement with particular reference to the full utilisation clause. By 3 August 2017, Mr McIntosh said that Mr Wilks, Head of Human Resources and Industrial Relations, provided a response to the full utilisation claim made by the TWU. 67 Mr McIntosh recalled that Mr Wilks said words to the effect of ‘Overtime management plus access for fulltime and we still have the right and ability to manage our business’.68 Mr McIntosh said that he was provided with a draft clause which he assumed had been prepared by Mr Sloan, an internal legal adviser to Toll.69

[55] Admitted into evidence was a document which included the draft clause and what Mr McIntosh stated were his handwritten notes. 70 That document was not provided to Toll at the time it was authored. However, Mr McIntosh said that during the evening of 3 August 2017 he and Mr Kaine worked on a draft clause that would be suitable to the TWU.71 An email was subsequently sent to Mr Sloan setting out the TWU’s draft working for inclusion in the 2017 Agreement in respect of full utilisation:72

(i) Part-time Transport Workers/owner drivers, casual, labour hire and outside hire workers will not be engaged to reduce the overtime hours available for full time permanent Transport Workers/Owner Drivers; and

(ii) On Saturday and Sunday, the company will offer overtime hours to full time permanent Transport Workers/Owner Drivers before engaging of Part-time Transport Workers/owner drivers, casual, labour hire or outside workers to perform that work.

[56] According to Mr McIntosh’s evidence, Toll responded to the matter of full utilisation advising that they accepted the proposed wording that had been provided by the TWU as per the email referred to above. 73 Following the negotiations over 3-4 August 2017, Mr McIntosh stated that he met with Mr Sloan on a number of additional occasions for the purpose of finalising the wording of the 2017 Agreement.74 It was during the discussions with Mr Sloan that the parties decided to cause the new full utilisation provision to stand alone, as opposed to it being incorporated into cl 17 as was the case in the 2013 Agreement.75 It is observed that the 2013 Agreement provided:

17. Toll commitment to job security

The parties recognise that job security is an important issue for Employees. For its part, Toll commits:

(a) to the full-time engagement of its Transport Workers wherever possible;

The TWU’s submissions

[57] In its submissions, the TWU observed that the contentious area of work was the picking of freight from the conveyor and the sorting of the freight into the bays before loading it onto vehicles. According to the TWU it was uncontroversial that the conveyor system operated for a limited period of three to four hours between 5:00 am and 9:00 am. The drivers historically were and could be present at the workplace to undertake those duties at that time - logically preceding them leaving the Hazlemere Depot in their vehicles in order to make the deliveries, which occurred around 9:00 am.

[58] Regarding the type of work, the TWU said that there is no dispute that the drivers could undertake that work in the sense of having the skills and capabilities to do so, as they had performed the work historically.

[59] The TWU submitted that the term Transport Worker was a common and ordinary term used to describe workers engaged in a broad range of activities in Toll’s operation. The activities relevantly included: (a) sorting; (b) loading; (c) unloading; and (d) driving. As such, a Transport Worker was capable, pursuant to the definitions found in cl 3 of the Agreement, of completing all or any activity as set out in Schedule C of the RTD.

[60] The relevance of this point is elucidated by the TWU’s contention that any operational distinction between duties completed did not change the reference to the relevant employee, or group of employees, as Transport Workers for the purpose of the dispute. The TWU submitted that cl 18 did not draw any distinction between the range of duties that might be completed by any Transport Worker with respect to the offer of overtime. According to the TWU, Toll was required by cl 18 of the Agreement to offer all available overtime to the full-time Transport Workers irrespective of the primary duties to be undertaken when engaging in the overtime work as no such distinction was drawn in the clause.

[61] Turning to cl 18(a), the TWU submitted that in respect of full utilisation, the clause had a plain and ordinary meaning which was unambiguous. The TWU continued that its evidence clearly demonstrated that in the context of the negotiation of the 2017 Agreement the dispute at the Hazelmere Depot had been addressed and the provisions of cl 18 were intended to remedy the dispute about the proper interpretation of cl 17(b) of the 2013 Agreement, as well as ensure that casual Transport Workers and outside hire workers were not engaged for the purpose of reducing available overtime to full-time permanent Transport Workers.

[62] In the dispute before the Commission, the TWU submitted that the engagement of casual Transport Workers and outside hire to complete the named freight handling duties, previously completed by permanent full-time Transport Workers, was a failure on the part of Toll to properly apply to its operations the provisions of cl 18. The TWU contended that as cl 18(a) had an ordinary meaning, it followed that Toll was required to offer all available overtime to full-time permanent Transport Workers prior to the engagement of causal Transport Workers and outside hire.

[63] The TWU submitted that when one considered the evidence of the TWU in respect of the negotiations for the 2017 Agreement, it was evident that all parties were aware that the negotiation of the provisions in cl 18 were intended to remedy the change in start time for permanent full-time Transport Workers engaged at the Hazelmere Depot. This was to ensure that casual Transport Workers and outside hire were not engaged in a manner which would reduce the volume of overtime available to permanent full-time Transport Workers.

[64] The TWU submitted an alternative argument. It argued that the proper operation of cl 17(b) of the 2013 Agreement was that Toll engage in the full utilisation of full-time Transport Workers by way of offering those full-time Transport Workers any available overtime for the purpose of promoting job security amongst them, before engaging any causals, outside hire or labour hire.

Toll’s submissions

[65] Toll submitted that cl 18(a) had a number of elements including:

a) utilisation rights attach to full-time permanent Transport Workers;

b) the restriction applies (relevantly) to the engagement of casual Transport Workers; and

c) the restriction applies if the engagement is ‘to reduce the overtime hours available’.

[66] Toll highlighted that the TWU had premised its argument on a series of assumptions that misunderstood the purpose and effect of award classification. Those assumptions were:

a) a Transport Worker is a class of employee picked up by the definition in the underlying parent award; and

b) once an employee is classed as a Transport Worker, the employee is indistinguishable for all purposes from any other Transport Worker; and

c) ‘overtime hours available’ must therefore mean any overtime hours relating to work which falls within the classification of Transport Worker.

[67] In its view the role of the award, said Toll, was to fix safety net terms for employees, according to a range of award classifications. Toll submitted that, by reference to the primary purpose test, 76 an employee’s role (determined according to the employee’s employment contract) may well fall within an award classification. However, Toll stated, this did not mean that all employees falling within the same award classification were indistinguishable in terms of what their role required of them. Unless there was something express to that effect in the award, the award merely determined the minimum set of terms which underpinned their employment.

[68] Toll submitted that the classifications in the relevant award, whether the RTD or the RTLD, offered examples of its proposition by setting out the various functions caught by the grades. The activities caught within specific grades were said to be varied and diverse. Toll stated that it was not difficult to identify circumstances where an employee would be a Transport Worker provided that the primary purpose of their role was captured (perhaps even a single activity) in the schedule to the award. The example Toll provided was that of a grade 2 Transport Worker whose primary purpose was ‘Loader – freight forwarder’ – whether or not they ever performed, or were even qualified to perform, work as a Driver of a rigid vehicle.

[69] Toll advanced that it clearly engaged its Transport Workers with specific purposes in mind, whether a driver, forklift driver or freight handler. It was within this context, Toll stated, the TWU had made the fatal error of categorising employees as falling within the Transport Worker classification, and then treating all work within that classification as capable of being ‘overtime hours available’. Toll held the view that ‘overtime hours available’ cannot mean any hours relating to work which fell within the scope of a Transport Worker. That proposition did not follow from the fact the award classified a number of different roles as Transport Workers.

[70] The Agreement’s operation at a national level was another reason that led Toll to assert that the TWU’s proposition concerning ‘overtime hours available’ was unsound. Toll referred to the TWU’s specific reference to the Hazelmere Depot regarding the dispute about full utilisation, and its claim that full utilisation had been an issue relating to other depots and groups of workers and the current full utilisation provisions. 77 Toll advanced that the intended operation of the clause was not narrowed to the dispute at the Hazelmere Depot.

[71] Further, the adoption of the TWU’s interpretation of clause would mean that ‘overtime hours available’ would apply to all work within a classification and without geographical limit. Toll acknowledged that, while not advanced by the TWU, it would follow from such interpretation that Toll would be obliged to roster available overtime to a full time Transport Worker, even work of a character entirely different from their full time role, rather than use casual labour. Toll continued that if the TWU interpretation was preferred, the overtime hours could involve any work within the Transport Worker classification, and it would not only require Toll to allocate the work to a full time driver, but also that the driver would be obliged to do it.

[72] According to Toll, the logical interpretation was to read cl 18(a) by reference to the employment of the relevant Transport worker, and ask – what is the employee employed to do? Having answered that question, one would then ask – what overtime work attaching to that role is available? This interpretation, said Toll, aligned better with cl 17(b) which restricted the engagement of casuals on the basis of job security. It did this by requiring full utilisation of full time permanents first. However, the restriction was qualified by ‘reasonable practical requirements’, i.e. the restriction was not absolute.

[73] Toll submitted that full utilisation related to overtime, given the restriction in cl 17(b) attached only to full time employees. Toll continued that it was difficult to see what was left for cl 17(b) to do if cl 18(a) provided a blanket ban on casuals taking any overtime hours for tasks within the employee’s award classification. The proper interpretation, said Toll, sensibly looked to give all clauses some work to do.

[74] If read according to Toll’s interpretation, cl 18(a) and cl 17(b) worked together. Clause 18(a) obliged Toll to roster full time employees for available tasks, when those tasks fell within their role. Clause 17(b) required Toll to promote job security by fully utilising employees (which was not restricted in the way of cl 18(a)) but was subject to reasonable practical requirements.

[75] Toll observed that the TWU’s argument ignored the stated objective, that was, to reduce the overtime hours available. Toll submitted that it did not engage the casuals to reduce the overtime hours available. Such casuals were already engaged and had been there to perform handling work both before and after the drivers left the Hazelmere Depot.

[76] It was highlighted by Toll that cl 18(a) referred to a ‘reduction’ in the overtime hours available and this was not the same thing as the prospective allocation of all hours, which were already being allocated to casuals. Toll submitted that the former was about maintaining a certain level of hours and the latter about reallocating hours which otherwise would be available. In other words, said Toll, the ‘hours available’ (after the Agreement was made), could only be those hours which were not at that time already being allocated to casual freight handlers, when the Agreement commenced in December 2017. Toll argued that if the intent was to ‘vacate’ all hours which were already being performed by casual freight handlers (and had been for some time, including before the change announced in August 2016), much clearer language could have been used. As it was, Toll opined that there was no retrospective intent evinced in cl 18(a).

Principles of interpretation

[77] The principles that govern the interpretation of enterprise agreements are well-established. In WorkPac Pty Ltd v Skene, 78 (Workpac) the Full Federal Court elucidated the following principles:

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 (Holmes) 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 Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 (Amcor) 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 378-379, citing George A Bond & Company 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 Ltd (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). 79

[78] In that same decision, the Full Federal Court voiced that where a term is undefined, unless there is a contrary indication, it ought to be presumed that the draftsperson intended that the term have its ordinary meaning. 80 And so, despite the broad purposive approach to be adopted when interpreting industrial agreements, that cannon of construction regarding the ‘ordinary meaning’ remains applicable as a starting point.81

[79] The Full Bench of the Commission in AMWU v Berri Pty Ltd 82(Berri), and the earlier decision in AMIEU v Golden Cockerel Pty Ltd,83embraced such principles. Berri affirmed that the interpretation of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words.

[80] Where there is a dispute over the interpretation of an enterprise agreement, the resolution will turn on the language of the agreement, having regard to its context and purpose. 84 Context might appear from the text of the agreement as a whole, the disputed provision’s place and arrangement in the agreement, and the legislative framework under which the agreement was made.85 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.86

[81] In Berri, the Full Bench summarised the principles relevant to the task of construing a single enterprise agreement as follows:

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 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.

Consideration

[82] 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. Consideration turns to the meaning of ‘will not be engaged to reduce the overtime hours available’.

Will not be engaged to reduce the overtime hours available

[83] The plain language of a clause in question may reveal its meaning when duly considered – in light of the words used and syntax. Toll advanced that part of the TWU’s argument ignored the stated objective of the clause, which was, to reduce the overtime hours available. Toll submitted that it did not engage the casual freight handlers to reduce the overtime hours available for the full-time permanent Transport Workers. The freight handlers were already engaged and had been performing handling work both before and after the drivers left the Hazelmere Depot for the remainder of their day’s work.

[84] At this point, we will not descend into the murky waters, to wade through the consideration of the timing around the freight handlers’ engagement. My focus rests on the phrase ‘will not be engaged to reduce’, and its plain meaning. ‘Be’ in this sentence is the active verb, and ‘engaged’ is a verb modifier of the word ‘be’. The word ‘to’ precedes the infinitive verb ‘reduce’. The Macquarie Dictionary 87 informs that the word ‘engage’ has several meanings, three of the most relevant in the current context appear to be:

1. To occupy the attention or efforts of (a person, etc)…

2. To secure aid, employment, use, etc.; hire: to engage a worker…
…

14. To take employment.

[85] It is evident from the submissions of the parties that they have attributed to the word ‘engage’, or its past tense ‘engaged’, the meaning ‘employed’, in the sense that the worker is able to be employed, or otherwise ‘hired’ where, for example, the worker is an Owner Driver. The meaning attributed is not misplaced when one considers cl 18 which speaks of ‘engaged’ in subparagraph (a) and ‘engaging’ in subparagraph (b) in a context where the objective is the full utilisation of permanent Transport Workers rather than other types of Transport Worker (part-time, casual, outside hire or owner drivers). The placement of ‘engaging’ and ‘engaged’ in cl 18 denotes, in my view, employment or ‘hiring’ – but also extends to an occupying of efforts or attention. For example, a ‘Casual Transport Workers/Owner Drivers’ may already be working for Toll, yet the clause precludes an extension of her or his existing engagement (i.e. the provision of further hours) to reduce the overtime hours available for full-time permanent Transport Workers/Owner Drivers.

[86] Clause 18(a) does not expressly refer to the word ‘intent’. Yet one grapples with whether such words in cl 18(a) demonstrate tacit deference to the intent of the decision maker. For example, the clause does not read ‘will not be engaged with the intention of reducing the overtime hours’, or for example ‘for the reason’, as in ‘will not be engaged for the reason of reducing overtime hours’. Nevertheless, the clause reads implicitly that the prohibition on engaging specified workers only arises if the purpose for the engagement is to reduce the overtime hours. So much is clear from the words ‘will not be engaged to reduce’.

[87] While the wording of the cl 18(a) appears to import a subjective test, that test would not be satisfied insofar as it would be sufficient for Toll to simply purport that it ‘did not engage the casuals to reduce the overtime hours available’, and that would bring the issue to rest. The requisite purpose for the engagement is established by knowledge of the circumstances which gave rise to the act in question. The act in this case is said to be the engagement of casual freight handlers. It requires an examination of the factual matrix to determine the ‘why’ behind the engagement of specified workers.

[88] The TWU submitted that where casuals or outside hire are engaged to perform work that could be ‘undertaken in the practical sense’ by permanent Transport Workers, then they will be engaged to reduce the overtime hours available for those employees. The TWU’s conclusion was premised on the fact that, that work could be undertaken by those Transport Workers, and to do so would be on an overtime basis. However, this assumption is not captured in the wording of the clause.

[89] This interpretation of cl 18(a) does not align with the phrase ‘will not be engaged to reduce’. The drafters of the Agreement made no reference to ‘engaged to perform work that could be undertaken in the practical sense’. The clause requires an examination of the reason for the engagement of the specified types of workers, hence the langue ‘will not be engaged to reduce’ and then consideration of whether the engagement is to reduce ‘the overtime hours available’.

Will not be engaged to reduce the overtime hours available

[90] Turning to the remainder of the clause, cl 18(a) specifically refers to the word ‘available’. The Macquarie Dictionary informs the reader that the word ‘available’ is an adjective that means ‘suitable or ready for use; at hand; of use or service: available resources’. 88 The overtime hours must, in the first instance, be available. Further, the overtime hours must be hours that would be available for full-time permanent Transport Workers/Owner Drivers.

[91] Although not expressly stated in the cl 18(a), it is implicit that the employer determines whether there are, or not, overtime hours available. It, after all, develops its workforce planning, and understands the headcount required for each shift dependent on peaks and troughs in activity. Further, it is abundantly clear that the obligation in cl 18(a) is Toll’s obligation, although the clause does not expressly reference Toll. While the reference to Toll is omitted, the reader understands from the language used where the obligation rests, just as the reader comprehends it is the employer who determines whether there are, or not, available overtime hours.

[92] Toll referred to the TWU’s specific reference to the Hazelmere Depot regarding the dispute about full utilisation, and its claim that full utilisation had been an issue relating to other depots and groups of workers, and the current full utilisation provisions. 89 It advanced that the intended operation of the clause was not narrowed to the dispute at the Hazelmere Depot. Toll’s submission about the intended operation of the clause is uncontroversial. Evidently, the language of the Agreement does not confine the operation of cl 18(a) to one dispute. However, while unstated, there is a geographical limitation to the operation of cl 18(a).

[93] We know that the common intention of the parties is identified objectively, because Berri tells us this. Reference is had to that which a reasonable person would understand by the language the parties have used to express their agreement. The language of the Agreement tells us that it operates at a national level. Yet, evidently it would be unfeasible if the term ‘available overtime hours’ was of broad import such that the employer was required to consider the overtime hours available at other depots or sites. We understand from the language used in the Agreement that while national in its coverage, the Agreement contemplates operation at a site or depot level. Hence the reference to ‘site inductions’ and the incorporation of Local Agreements. The text of the Agreement after all must be viewed as a whole.

[94] The TWU contended that as cl 18 had an ordinary meaning, it followed that Toll was required to offer all available overtime to full-time permanent Transport Workers prior to the engagement of causal Transport Workers and outside hire. I am unable to agree with this contention. In short, Toll is obliged not to engage specified types of workers to reduce the available overtime hours of permanent full-time Transport Workers/Owner Drivers. Clause 18(a) is silent on a requirement to offer available overtime to the full-time permanent Transport Workers. Where the Agreement contemplates an offer of hours it expressly refers to the same, hence the wording of cl 18(b) – ‘On Saturday and Sunday Toll will offer overtime hours to full-time permanent Transport Workers/Owner Drivers before engaging Permanent Part-Time Transpower Workers/Owner Drivers…’.

[95] Clause 18(a) is included in a ‘Section’ within the Agreement titled ‘Employment Relationship’. At cl 17, the parties have taken the time to reduce to writing Toll’s commitment to job security. The parties drew my attention to cl 17(b), the wording of which I have covered at paragraph [24] of this decision. Clause 17 acknowledges that job security is an important issue for Transport Workers and therefore Toll has committed, ‘subject to reasonable practical requirements, such as adequately servicing industry peaks, to promote job security through the full utilisation of full-time permanent Transport Workers/Owner drivers before the engagement…’ of other specified types of workers.

[96] Clause 17(b) cannot be ignored, its relevance to resolving the disputed construction of cl 18(a) is established by the direct use of the words ‘full utilisation of full-time permanent Transport Workers/Owner Drivers’ – a turn of phrase used in the header to cl 18. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose.

[97] Toll submitted that cl 17(b) restricted the engagement of casual Transport Workers/Owner Drivers on the basis of job security. It did this by requiring full utilisation of ‘full-time permanents’ first. However, cl 17(b) included a restriction which was not absolute, because the obligation was qualified by ‘reasonable practical requirements’. Toll submitted that full utilisation related to overtime, given the restriction in cl 17(b) attached only to full time permanent Transport Workers/Owner Drivers. Toll continued that it was difficult to see what was left for cl 17(b) to do if cl 18(a) provided a blanket ban on casual Transport Workers/Owner Drivers taking any overtime hours for tasks within permanent full-time Transport Workers’ award classifications. The proper interpretation, said Toll, sensibly looked to give all clauses some work to do.

[98] Clause 18(a) and cl 17(b) work together. By this, I do not mean that the restriction in cl 17(b) is somehow incorporated into cl 18(a). But, the two provisions are not disharmonious with each other, and both focus on full utilisation of full-time permanent Transport Workers/Owner Drivers. Clause 17(b) achieves this by articulating its commitment to the full utilisation of such Workers/Drivers subject to reasonable practical requirements. Clause 18(a) then places a specific restriction or obligation upon Toll not to engage specified workers to reduce the overtime hours available for the full-time permanent Transport Workers/Owner Drivers. That restriction in cl 18(a) is not, as Toll correctly identified, a blanket ban on the use of specified workers within the clause. As I have observed, cl 18(a) implicitly prohibits the engagement of specified workers if the purpose for the engagement is to reduce the overtime hours.

A Transport Worker/Owner Driver

[99] The TWU submitted that the term ‘Transport Worker’ was a common and ordinary term used to describe workers engaged in a broad range of activities in Toll’s operation. The activities relevantly included: (a) sorting; (b) loading; (c) unloading; and (d) driving. As such, a Transport Worker was capable, pursuant to the definitions found in cl 3 of the Agreement, of completing all or any activity as set out in Schedule C of the RTD.

[100] The Agreement has incorporated a definition of the term ‘Transport Worker’. It specifically defines the term by reference to the classifications within two specified Awards, the RTD and the RTLD. Schedule C to the RTD consists of ten grades of Transport Worker, and then outlines the classification. For example, General Hand is the first classification in Schedule C of the RTD, and that classification slots within Grade 1. Stating the obvious, whilst acknowledging my own dearth of expertise in the truck driving arena, a General Hand would not on face value appear to have the skills, expertise or competence that a Transport Worker would require, to fall under the classification of, for example, a ‘Driver of a rigid vehicle and a heavy trailer combination with more than three axles and a GCM greater than 22.4 tonnes up to and including 53.4 tonnes’, which sits at Grade 6. Hence the differential in ‘Grades’. To therefore propose that the term ‘Transport Worker’, as used in the Agreement, encompasses all classifications or descriptions in the RTD and RTLD respectively without limitation cannot stand.

[101] It might be proposed that a limitation in this respect, is that the Transport Worker is able to perform all work in her or his requisite Grade or those Grades preceding. It does appear that the classifications, at least in the RTD, appear to escalate in terms of the requisite complexity of the classification. However, the Agreement’s definition of ‘Transport Worker’, refers to union eligibility and ‘who is employed by Toll in Australia in any of the classifications contained in the Award or in a Local Agreement that applies at the site at which the person is, or is to be, employed’. The definition’s wording states that the person is employed in any of the classifications. The RTD lists the classifications, which are specific, as are the descriptions in the RTLD, of the positions or activities. It is difficult to comprehend that a Driver of a rigid vehicle and a heavy trailer combination with more than three axles and a GCM greater than 22.4 tonnes up to and including 53.4 tonnes can also perform the work of Transport Rigger, albeit both classifications sit at Grade 6.

[102] The relevance of this point is elucidated by the TWU’s contention that any operational distinction between duties completed, does not change the reference to the relevant employee or group of employees as Transport Workers for the purpose of the dispute. The TWU submitted that cl 18(a) did not draw any distinction between the range of duties that might be completed by any Transport Worker with respect to the offer of overtime.

[103] Toll advanced that it clearly engaged its Transport Workers with specific purposes in mind, whether a driver, forklift driver or freight handler. It was within this context, Toll stated, the TWU had made the fatal error of categorising employees as falling within the Transport Worker classification, and then treating all work within that classification as capable of being ‘overtime hours available’.

[104] There has not been a proper appreciation that ‘Transport Worker’ is a defined term, and that definition refers to any person ‘employed by Toll in Australia in any of the classifications contained in the Award’. The classifications are those set out in the two relevant awards – the RTD and the RTLD, and it is Toll that employs the person in any of the classifications. For example, Toll may employ a person as a: (a) driver of a mobile crane; (b) a driver of a rigid vehicle; (c) distribution facility employee level 4; or (d) an aerodrome attendant. All of these classifications are graded at Grade 9. However, it is evident that the classifications are distinguishable notwithstanding that they are all the same grade. Clearly the classifications refer to either different jobs or activities. While the Agreement uniformly refers to the term ‘Transport Worker’, the use of this nomenclature is understandable as it avoids having to refer to the approximately 41 classifications in the RTD alone.

[105] The adoption of the TWU’s interpretation of cl 18(a) would mean that ‘overtime hours available’ would apply to all work performed by approximately 41 classifications in the RTD alone (and similarly numerous grades in the RTLD). When referring to the obligation not to engage specified workers to reduce the overtime available for full-time permanent Transport Workers/Owner Drivers, the overtime available is that which is referable to the particular classification under the RTD or description in the RTLD. However, this does not mean that a Transport Worker, who for example is classified as a driver, is unable to perform overtime work that is freight handling. As it is, Toll determines the overtime hours available, and it follows therefore that Toll can determine whether the overtime hours are suitable or ready to be worked, or at hand, for the permanent full-time Transport Workers/Owners Drivers to perform. This means that a driver can still perform overtime hours notwithstanding the work or activities fall under a different award classification, if that work is ‘available’.

[106] I agree with the TWU’s contention that cl 18(a) is clear in its meaning and the text is unambiguous. If the language of the clause was ambiguous or susceptible of more than one meaning, then I would have considered the evidence of the enterprise agreement negotiations in 2017 as an aide to interpret the Agreement. I have not referred to such evidence when interpreting the Agreement because this aide was not required. However, it remains the case that the evidence of the agreement negotiations in 2017 would not have changed the conclusion reached.

Was the engagement of casual Transport Workers to undertake handling duties at the Hazelmere Depot ‘to reduce the overtime hours available’ for full-time drivers, in contravention of clause 18(a) of the 2017 Agreement

[107] The Agreement came into operation on 15 December 2017. Toll introduced the use of casual Transport Workers to undertake ‘contentious’ handling duties in or around February 2017, and the use of these casual workers for this type of work has been uninterrupted since.

[108] By the time the Agreement came into operation the casual freight handlers had been performing the work that the drivers historically performed between 5:00 am and 9:00 am. Unmistakably, the drivers could undertake the freight handling work in the sense that they had the skills and capacity to do so, and historically had performed the overtime hours prior to the Agreement coming into operation. However, under the Agreement, Toll can determine the overtime hours available. When the Agreement came into operation, up until the time of hearing, those four hours between 5:00 am and 9:00 am, were not overtime hours available for full-time permanent Transport Workers/Owner Drivers. The work was already being performed.

[109] Had the Agreement been in operation at the time the casual freight handlers were engaged to perform the contentious area of work (circa 2016-2017), namely the picking of freight from the conveyor and the sorting of the freight into the bays before loading it onto vehicles, the conclusion may have differed. At that time the overtime hours available for permanent full-time Transport Workers were the four hours between 5:00 am and 9:00 am, performing freight handling work. The change in the start time for the permanent full-time Transport Workers in early 2017, reduced the rostered overtime for these employees.

[110] Earlier in this decision I observed that cl 18(a) does not expressly refer to the word ‘intent’. However, it was perceptible that a consideration of intent or the purpose for the engagement of the specified workers was implicit in the language of the clause. That language being - ‘will not be engaged to reduce’. I added that it would not be enough for Toll to simply purport that it ‘did not engage the casuals to reduce the overtime hours available’. The requisite purpose for the engagement, was discerned from the knowledge of the circumstances which gave rise to the act in question. The act in this case is said to be the engagement of casual freight handlers.

[111] In the cross-examination of Mr Warwick, Counsel referred Mr Warwick to Exhibit R1 Attachment WW5. That exhibit was an email dated 9 February 2017 from the HR Business Partner at the time, to representatives of the TWU. Mr Warwick was copied to the email. The topic of the email was the changes to start times for the permanent full-time drivers. It appeared that Toll was responding to issues raised by the TWU regarding a dispute about the change. I have italicised the response of Toll, the email stated:

‘What are your operational changes when nothing has changed, I question the company’s integrity to compromise safety for financial gain’.

This issue has been raised by national for some time, what has changed is the financial position of IPEC, and the financial viability of paying overtime to drivers to assist with sortation duties in the morning. As in all other IPEC depots, the fright can be presented to drivers with adequate time for drivers to safely load their vehicles with the handlers starting earlier than the drivers.

[112] In response to some of the questions asked of him in cross examination, Mr Warwick provided the following oral testimony:

It's indicated that what has changed is the financial position of IPEC. Do you see that?---Yes.

And the financial viability of paying overtime to drivers to assist with sortation duties in the morning. Do you see that?---Mm-hm.

So part of the concern was the cost and financial viability of paying overtime to drivers to do sortation duties; correct?---That's what it says here. I didn't write it.

Yes, well, it's correct as well, isn't it?---That's what's written. You want me to verify what's written, do you?

I'm not asking you to verify what's written, I'm asking you that that was what - part of the decision, that is you didn't want to keep on paying overtime for drivers to do sortation duties; correct?---We didn't want to pay drivers to do overtime to be there in the morning, yes. 90

[113] While I am not required to arrive at a finding whether the casual freight handlers were engaged in early 2017 to reduce the overtime hours available for full-time permanent Transport Workers/Owner Drivers at that time, I observe that it was challenging to discern from the evidence as to whether additional casual freight handlers were employed, or existing casual freight handlers at the time, had their number of hours increased, to reduce the overtime hours available for the drivers.

[114] In respect of the TWU’s alternative argument, there are observations to be made. First, the parties did not agree that this was the issue to be resolved, as is evinced by the question they posed. Second, the dispute raised concerns the interpretation of this Agreement, not the 2013 Agreement. Third, there are, evidently, jurisdictional hurdles that arise regarding the alternative argument.

[115] I have reiterated that cl 18(a) of the Agreement refers to a ‘reduction’ in the ‘overtime hours available’. This is not the same thing as the prospective allocation of all hours, which were already being allocated to casual freight handlers. In other words, the ‘hours available’ (after the Agreement was made), can only be those hours which were not at that time already being allocated to casual freight handlers when the Agreement commenced in December 2017. In this respect, I agree with Toll’s argument that if the intent was to ‘vacate’ all hours which were already being performed by casual freight handlers (and had been for some time, including before the change announced in August 2016), much clearer language could have been used. It was not, and the language of cl 18(a) does not lend itself to the interpretation that it operates retrospectively.

Conclusion

[116] My conclusion therefore is that the engagement of casual Transport Workers to undertake handling duties at the Hazelmere Depot was not so as ‘to reduce the overtime hours available’ for full-time drivers in contravention of clause 18(a) of the Agreement.

DEPUTY PRESIDENT

Appearances:

M Gibian SC of Counsel for the Applicant

R French of Counsel for the Respondent

Hearing details:

2019.

Perth:

September 9.

Printed by authority of the Commonwealth Government Printer

1 AE426430.

2 Witness Statement of Wayne Warwick (Warwick Statement) [11].

3 (1987) 163 CLR 140 (‘Cram’).

4 Ibid, 148.

5 Ibid, 148 – 149 citing Reg v Gallagher; Ex parte Aberdare Collieries Pty Ltd (1963) 37 ALJR 40, 43.

6 Ibid, 149.

7 Ibid.

8 PR908236.

9 (2001) 203 CLR 645 (‘Private Arbitration Case’).

10 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Zinfra Group[2015] FWC 5025.

11 Clause 4.1 of the Agreement.

12 Clause 3 of the Agreement.

13 MA000038.

14 MA000039.

15 Ibid [12].

16 Ibid [12].

17 Ibid [13].

18 Ibid [17]; Attachment WW3.

19 Ibid [15].

20 Ibid [15].

21 Ibid [24] – [25].

22 Ibid [20].

23 Ibid [22].

24 Ibid [22].

25 Ibid [21].

26 Ibid [23].

27 Ibid [23].

28 Ibid [23].

29 Ibid [29].

30 Ibid [30].

31 Ibid [31].

32 Ibid [33].

33 Ibid [35].

34 Ibid [36].

35 Ibid [36].

36 Ibid [38].

37 Ibid [38].

38 Ibid [39].

39 Ibid [39].

40 Ibid [40].

41 Ibid [41].

42 Ibid [42].

43 Ibid [42].

44 Ibid [43].

45 Ibid [43].

46 Ibid [43].

47 Ibid [48].

48 Ibid [48].

49 Ibid [48].

50 Witness Statement of Charles Nichols (Nichols Statement) [9].

51 Ibid [9].

52 Ibid [9].

53 Ibid [11].

54 Ibid [15].

55 Ibid [18].

56 Ibid [18].

57 Ibid [21].

58 Ibid [21]; Annexure CN-1.

59 Ibid [32].

60 Ibid [32].

61 Ibid [35].

62 Ibid [36].

63 Ibid [37].

64 Witness Statement of Nicholas McIntosh (McIntosh Statement) [7]-[9].

65 Ibid [4].

66 Ibid [25] Annexure NMM-4.

67 Ibid [66].

68 Ibid [66].

69 Ibid [66].

70 Ibid [67] – [68].

71 Ibid [73].

72 Ibid [73] Annexure NMM-11.

73 Ibid [74].

74 Ibid [76].

75 Ibid [76].

76 Carpenter v Corona Manufacturing PR925731 [9].

77 McIntosh Statement [24].

78 [2018] FCAFC 131.

79 Ibid [197].

80 Ibid [202].

81 Ibid [202].

82 [2017] FWCFB 3005.

83 [2014] FWCFB 7447.

84 Ibid.

85 Berri point 1 [114]; Golden Cockerel point 8 [41].

86 Berri point 2[114].

87 Macquarie Dictionary (online ed, 20 December 2019) ‘engage’.

88 Macquarie Dictionary (online ed, at 20 December 2019) ‘available’.

89 McIntosh Statement [24].

90 Transcript PN415-419.

Transport Workers' Union of Australia v Toll Transport Pty Ltd T/A Toll Global Express

[2019] FWC 6201

23 DECEMBER 2019

DECISION