Transport Workers' Union of Australia v Toll Transport Pty Ltd t/a Toll Transport
[2020] FWC 9
•17 JANUARY 2020
| [2020] FWC 9 |
| 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 Transport; Toll Personnel Pty Ltd t/a Toll People
(C2019/2438)
| Deputy President Sams | SYDNEY, 17 JANUARY 2020 |
Alleged dispute about matters arising under an enterprise agreement – road transport industry – disputes about overtime payments for casual and part time employees – principles of agreement interpretation – interpretation of relevant clauses – whether words ambiguous, uncertain or susceptible to more than one meaning – different provisions in New South Wales – whether New South Wales provisions carried over into successive agreements – words not ambiguous – words to be read in the context and purpose of the clause and the Agreement – ‘surrounding circumstances’ support no ambiguity – documents are the preferred evidence – questions for interpretation answered.
On 12 April 2019, the Transport Workers’ Union of Australia (the ‘Union’) filed an application, pursuant to s 739 of the Fair Work Act 2009 (the ‘Act’), in which it seeks to have the Fair Work Commission (the ‘Commission’) deal with two disputes under a dispute settlement procedure (‘DSP’) in an Agreement. The disputes are with Toll Transport Pty Ltd t/a Toll Transport (‘Toll Transport’ or the ‘first respondent) and Toll Personnel Pty Ltd t/a Toll People (‘Toll People’ or the ‘second respondent’) (both wholly owned by Toll Holdings Limited, and referred to collectively as ‘Toll’). The disputes arise under the Toll – TWU Enterprise Agreement 2017-2020 (the ‘Agreement’ or the ‘2017 Agreement’). I shall refer to the two disputes as the Casual Overtime Dispute and the Part Time Overtime Dispute respectively.
The Agreement provisions under consideration in this case are Clause 22(b) – Casual Transport Workers (Annexure B), and Clause 23(b) – Permanent Part Time Transport Workers (Annexure B). Clauses 22 and 23 read as follows:
‘22. Casual Transport Workers
(a) Casual Transport Workers, other than those employed in New South Wales, will receive a 25% loading on all ordinary hours worked and a 10% loading on all overtime worked.
(b) Casual Transport Workers in New South Wales will receive a 15% loading on all hours worked plus a further one twelfth (1/12) of their ordinary rate of pay for all ordinary time hours worked.
(c) The casual loading on overtime hours is to be paid in addition to any overtime loading to which the Transport Worker is entitled.
(d) Casual Transport Workers will not be entitled to the benefits of clauses 25, 26, 27, 29 and 31. The casual loading is paid in lieu of and to compensate for these benefits.
(e) Subject to clause 22(f), where a casual Transport Worker has been directly employed by Toll or engaged through a labour hire company to perform work for Toll on a regular and systematic basis for more than 6 months, the Transport Worker may elect to become a permanent Transport Worker, on a like for like basis, within the specific business unit at which the Transport Worker is engaged.
(f) Toll will only decline a Transport Worker's election under clause 22(e) in exceptional circumstances and for legitimate business reasons. In such a case the casual Transport Worker will not lose the right to exercise the election referred to in clause 22(e) when the exceptional circumstances precluding conversion no longer apply.
(g) Clause 22(e) does not allow a Transport Worker to elect to become a permanent employee of Toll People.’
23. Permanent Part-time Transport Workers
(a) A Permanent Part-Time Transport Worker is one who is rostered to work:
(i) less than 7.6 hours on a given shift; or
(ii) less than 38 hours in a week.
(b) On commencement of employment, Toll and a Permanent Part-Time Transport Worker will agree on the hours and days in each week that the Transport Worker will work.
(c) Any hours which a Permanent Part-Time Transport Worker is required to work in excess of those agreed under clause 23(b) will be paid at overtime rates.
(d) Toll and a Permanent Part-Time Transport Worker may agree to vary the Transport Worker's hours and days of work, provided that this may not be used as a device to avoid Toll's responsibilities under clause 23(c), for example by making ad hoc or regular changes.
Other related provisions will be set out later in the body of this decision.
The Union contends that:
(a)casuals employed by Toll Personnel who engage in work at Minchinbury are not paid the correct overtime rate when working overtime; and
(b)permanent part-time employees employed by Toll Transport who work at the Minchinbury site, are not paid correct overtime rates when working outside of their ordinary hours of work.
The Union seeks the following relief as a determination of the Commission:
1.That casual transport workers engaged by Toll People in NSW are entitled to 15% loading on all hours worked, including overtime.
2.That permanent part-time transport workers engaged by Toll Transport are entitled to overtime rates for all hours worked outside of their agreed hours and days.
The matter was listed for conference and directions on 7 May 2019. The disputes remained unresolved, and the parties engaged in further direct negotiations in order to seek a resolution of the disputed issues. However, on 4 June 2019, the Union advised that the negotiations were unsuccessful and sought directions for an arbitration of the disputes under Clause 15(d) of the DSP. At this juncture, I note that there were no jurisdictional issues raised by Toll with respect to the disputes. I proceeded to issue directions on 6 June 2019 for a hearing on 1 August 2019. By consent, new directions were issued twice more, and the hearing was adjourned from 26 September 2019 to 3 October 2019. Due to the unavailability of Counsel for both parties, the matter was finally relisted for 17 October 2019.
At the hearing, Mr A Slevin of Counsel appeared with Mr G Webb for the Union, and Mr S Prince of Senior Counsel appeared with Ms F James for both Toll entities, with permission having been granted for both parties to be represented by Counsel, pursuant to s 596 of the Act. Statement evidence was tendered from:
·Mr Richard Olsen – the Union’s State Secretary;
·Mr Brian Moylan – Permanent part time employee;
·Mr Craig Merriman – Permanent part time employee;
·Mr Syrous Tavakoli – Permanent part time employee; and
·Mr Dean John Annetts – Shift Manager, Woolworths Distribution Centre, Minchinbury for Toll.
None of the witnesses were required for cross examination and their statements were admitted into evidence, subject to agreed amendments and the usual caveats as to opinion, hearsay and relevance, referred to in the transcript of 17 October 2019.
Witness statements for the Union
Mr Richard Olsen
Mr Olsen’s statement dealt primarily with his role and involvement in bargaining for the two predecessor Agreements to the current 2017 Agreement, being the 2011 and 2013 Agreements. Mr Olsen said that following negotiations in 2011 with the major national road transport companies, including Toll, Linfox, TNT and Ceva Logistics, the 2011 Toll Agreement maintained a 15% loading for casual employees in NSW when working overtime, which had formerly applied under the NSW Transport Industry (State) Award (the ‘NSW State Award’). He noted that around the same time (2011), after the Road Transport and Distribution Award 2010 (the ‘RTD Award’) had been introduced, it did not include loadings for casual transport workers, but it did include a 25% casual loading for all ordinary hours worked by casual employees.
Mr Olsen said that the 2013 Agreement included revised Cls 6(c) and (d) which read as follows:
‘(c)For the avoidance of doubt Toll will ensure that no Transport Worker will lose any entitlements that they may currently have arising out of any Instrument.
(d)In particular in relation to Transport Workers employed by Toll in New South Wales as at the Operative Date:
(i)the commitment in clause 6(c) extends to entitlements including:
A. their classification;
B. allowances (including meal allowances);
C. overtime; or
D. shift work loadings; and
(ii)to the extent that any Transport Workers have such entitlements as at the Operative Date, Toll will continue to apply these entitlements at the sites where those Transport Workers work, and will extend those entitlements to Transport Workers who are employed by Toll at those sites after the Operative Date; and
(iii)the obligation by Toll to apply or offer those entitlements will not apply in relation to any new site or business established by Toll in New South Wales after the Operative Date.’
It was Mr Olsen’s belief that these changes were intended to make clear that no transport worker would lose any entitlements under any earlier industrial instrument, meaning NSW employees would maintain their overtime entitlements from the NSW State Award. He understood that Cl 22(c) was added to remove any doubt that the casual loading on overtime hours was paid in addition to any overtime loading otherwise payable. These provisions were carried over to the 2017 Agreement.
Mr Olsen believed that Toll Transport has, and is currently, remunerating its casual employees (numbering around 15) with a 15% loading on the overtime rate of pay for all overtime hours worked. This was demonstrated by employees’ payslips, which revealed the following formula:
(a)For the first two hours of overtime:
$32.1805 x 1.5 = $48.27075 x 1.15 (being 15% loading) = $55.5113; and
(b)For overtime thereafter:
$32.1805 x 2 = $64.361 x 1.15 (15% loading) = $74.0515.
Mr Olsen further understood that Toll Personnel (numbering a pool of up to 40 employees) was not applying the above formula, resulting in these employees being incorrectly paid.
Messrs Moylan, Berriman and Tavakoli are all permanent part time employees with part time contracts. They have worked for Toll for 8 years, 10 years and 5 years respectively. Their agreed hours of work are:
·Mr Moylan – 2am-10am Saturday and Sunday
5am-1:30pm Monday, Tuesday and Wednesday;
·Mr Merriman – 6am-2:30pm Wednesday, Thursday and Saturday
·Mr Tavakoli – 5am starting Monday, 5am to 1:30pm Saturdays and Sundays.
Each driver gave evidence that they can request work on additional days and regularly do so. When working extra days, they receive ordinary hours for the first 7.6 hours.
For the respondents
Mr Dean John Annetts
Mr Annetts described Toll’s operations in transporting goods for Woolworths from its Minchinbury Distribution Centre in New South Wales. In conducting this 24/7 business, Toll engages a mix of driver employees, labour hire casual employees from Toll Personnel, contract carriers and fleet operators. The employee drivers are employed under the Agreement. Mr Annetts is responsible for rostering all drivers, including allocating additional hours and days of work to any driver who requests it. This is a common practice; drivers are not required to work additional hours or days. The request is usually initiated by the driver filling out a Work Request Form (‘WRF’). Mr Annetts said that if there are not enough employee drivers to work additional hours or days, arrangements are made for casual employees, labour hire casuals or ad hoc fleet operators to cover the work. There is always enough labour for the work to be performed using this arrangement.
Mr Annetts said that Messrs Moylan, Merriman and Tavakoli are employed by Toll as part time drivers at Minchinbury. The workers’ normal hours of work are:
·Mr Moylan – Saturday and Sunday starting at 2:00am; Monday and Tuesday starting at 5:00am;
·Mr Merriman – Wednesday, Thursday and Saturday starting at 5:00am; and
·Mr Tavakoli – Monday, Saturday and Sunday starting at 5:00am.
Mr Annetts understood that these employees have requested to work additional hours and days, but they have never been required to do so.
SUBMISSIONS
The Union’s written submissions
The Union crystallised the disputes to three questions as follows:
1.Are casual Transport Workers employed by Toll People in New South Wales entitled to be paid a 15 per cent loading on the overtime rate of pay for all overtime hours worked pursuant to clause 22(b) of the 2017 EA, in the following manner:
For the first two (2) hours of overtime:
([Base rate] x 1.5) x 1.15 (being the 15% casual loading); and
For all hours thereafter:
([Base rate] x 2) x 1.15 (being the 15% casual loading).’
2.Are part-time Transport Workers employed by Toll Transport who agree to work a particular number of hours and days per week, but work in excess of those agreed hours and days, entitled to be paid overtime rates of pay after working in excess of their agreed hours and days pursuant to clause 23(c) of the 2017 EA?
3.If yes:
a. Are the agreed hours and days for Brian Moylan for the period of 11 April 2011 until the present day as follows:
i.2:00am – 10:00am Saturday;
ii.2:00am – 10:00am Sunday;
iii.5:00am – 1:30pm Monday; and
iv.5:00am – 1:30pm Tuesday?
b. Were the agreed hours and days for Craig Merriman for the period of 28 May 2012 – 21 December 2014 as follows:
i.5:00am start Wednesday;
ii.5:00am start Thursday; and
iii.1:00pm start Saturday?
c. Are the agreed hours and days for Craig Merriman for the period of 22 December 2014 until the present day as follows:
i.6:00am – 2:30pm Wednesday;
ii.6:00am – 2:30pm Thursday; and
iii.6:00am – 2:30pm Saturday?
d. Are the agreed hours and days for Syrous Tavakoli for the period 7 July 2014 until the present day as follows:
i.2:00am – 10:00am Monday;
ii.5:00am – 1:30pm Saturday; and
iii.5:00am – 1:30pm Sunday?
It was put that the first two questions should be answered in the affirmative by reference to the legal principles the Commission must apply to the proper construction of the relevant clauses in the 2017 Agreement; see: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[2017] FWCFB 3005 (‘Berri’); The Australian Meat Industry Employees Union v Golden Cockerel Pty Limited[2014] FWCFB 7447 (‘Golden Cockerel’); City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426, Kucks v CSR Limited [1996] IRCA 1966; Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337; and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v EnergyAustralia Yallourn Pty Ltd (2017) 262 IR 300.
Casual overtime dispute
It was the Union’s primary submission that the meaning of Cl 22(b) is plain and unambiguous and is not susceptible to more than one meaning. Casual transport workers in New South Wales are referenced in Cl 22(b) as being entitled to ‘a 15% loading on all hours worked’. This clearly distinguishes the arrangements for casual workers outside New South Wales, who are referenced in Cl 22(a), as being entitled to a 25% loading on ordinary hours and a 10% loading ‘on all overtime work’. Further, it was submitted that Cl 22(c) provides that the casual loading on overtime hours is to be ‘in addition to any overtime loading’. Further, by reading Cls 22(b) and (c) together, the effect is that a 15% loading on overtime hours is to be paid, in addition to any overtime loadings.
The Union described this arrangement as ‘carve out’ for New South Wales, when the 2017 Agreement carried over the same loadings from the NSW State Award. This was clear from Cl 6(c) of the 2017 Agreement which reads as follows:
‘For the avoidance of doubt Toll will ensure that no Transport Worker will lose any entitlements that they may currently have arising out of any Instrument.’
It was put that the word ‘instrument’ above, must include the NSW State Award and Cl 6(d) was specifically directed to Toll in NSW and to the then existing entitlements in NSW, including ‘overtime’. This produces the calculations referred to in [9] above.
While the formulas are slightly different, they produce the same result, namely that a 15% loading is to be paid on the overtime rate for all hours of overtime hours worked. The Union calculated a shortfall for casual employees at Minchinbury of:
·$2.3382 per hour for the first two hours of overtime; and
·$4.6748 per hour for all overtime thereafter.
The Union claimed that Toll People’s approach produced an error, as it ignored the clear language at Cl 22(b) of the 2017 Agreement.
The Union also relied on Cl 17(c) of the 2017 Agreement in which Toll commits as follows:
‘to ensure that wages and conditions applicable to third party agency workers and to casual Transport Workers placed in a business by Toll People (or any other agency controlled by Toll) are no less than those of Transport Workers in the same position in that business unit’.
However, it was observed that Toll Transport is applying the correct calculation for casual overtime work. Accordingly, and consistently, Cl 17(c) expressly and plainly requires Toll People to treat its casual employees in the same way. In the alternative, if the Commission found uncertainty or ambiguity with the language in Cl 22, the Union’s construction is supported by ‘surrounding circumstances’, being the history of negotiations for enterprise agreements with Toll, particularly since 2011, when the parties agreed to negotiate a national agreement.
It was suggested that an ambiguity may have arisen as the two relevant modern Awards, (the RTD Award and the Road Transport (Long Distance Operations) Award 2010), did not provide for a casual loading of 25% when an employee worked overtime. What followed was the 2013 Agreement, which used the expression ‘for the avoidance of doubt’ at Cls 6(c), 6(d) and 21(c), as follows:
‘6(c) For the avoidance of doubt Toll will ensure that no Transport Worker will lose any entitlements that they may currently have arising out of any Instrument.
6(d) In particular in relation to Transport Workers employed by Toll in New South Wales as at the Operative Date:
(i) the commitment in clause 6(c) extends to entitlements including: A. their classification; B. allowances (including meal allowances); C. overtime; or D. shift work loadings; and
(ii) to the extent that any Transport Workers have such entitlements as at the Operative Date, Toll will continue to apply these entitlements at the sites where those Transport Workers work, and will extend those entitlements to Transport Workers who are employed by Toll at those sites after the Operative Date; and
(iii) the obligation by Toll to apply or offer those entitlements will not apply in relation to any new site or business established by Toll in New South Wales after the Operative Date.’
‘21(c) For the avoidance of doubt, the casual loading on overtime hours is to be paid in addition to any overtime loading to which the Transport Worker is entitled.’ (my emphasis)
It was put that the use of the words ‘any instrument’, rather than ‘Modern Award’, clarified the parties’ intention to capture the existing provisions of the NSW State Award and preserved them. The same provisions were carried over in the 2017 Agreement.
Part time overtime dispute
The Union relied on Cl 23 of the 2017 Agreement, in particular, sub-Cls (b) and (c). The three employees who gave evidence, all have agreed hours in accordance with Cl 23(b) but have regularly worked more than their agreed hours and days, for a number of years. When working on additional days they receive ordinary rates for the first 7.6 hours on any day or hours they work. However, they should be paid overtime rates for any additional hours or days worked.
It was contended that the language that Cl 23 was clear and unambiguous. The words ‘in excess’ of agreed hours and days, means such hours should be paid at overtime rates. Reliance for this construction can be found at Cl 12.4 of the RTD Award which provides:
‘(a) A part-time employee is an employee who is engaged to work less than 38 ordinary hours per week.
(b) Before commencing part-time employment, the employee and employer must agree upon:
(i) the hours to be worked by the employee, the days upon which they will be worked and the commencing and finishing times for the work; and
(ii) the classification applying to the work to be performed.
(c) Except as otherwise provided in this award, a part-time employee is entitled to be paid for the hours agreed upon in accordance with clause 12.4(b)(i).’
‘(h) All time worked in excess of the agreed hours referred to in clause 12.4(b)(i) will be paid at the appropriate overtime rate.’
This approach is also consistent with the Commission’s Award Modernisation Decision; see: Award Modernisation [2009] AIRCFB 826 at [136].
The Union contended that the clear purpose of Cl 23 was for a scheme similar to the RTD Award, such that part time employees could agree on hours and days which were naturally convenient, but for any hours worked over that agreement they should be paid at overtime rates. Further, the Union put that the Commission should make clear what the agreed hours are, by reference to the employee’s letters of offer/appointment and Mr Annett’s acceptance of those agreed hours.
Finally, the Union submitted that if the language of the disputed clauses is found to be ambiguous, or susceptible to more than one meaning, the Union’s original relief sought should be adopted.
Respondent’s written submissions
The respondents accept the Commission has jurisdiction to deal with the two disputes by answering the questions posed by the Union and similarly relied on the ‘Berri Principles’ for the correct construction of the disputed clauses. Unsurprisingly, the respondents propose that the Commission answer both questions in the negative.
Casual overtime dispute
The respondents agreed that the language of Cl 22(b) has a plain, unambiguous meaning and is not susceptible to more than one meaning. However, when the Agreement is read as a whole, by particular reference to Cl 3 – Definitions, Clause 6 – Relationship to the Award and the National Employment Standards (‘NES’) and Cl 22 – Casual Transport Workers, the result does not require the employers to calculate overtime on the casual rate of pay.
The respondents submitted that Cls 22(b) and (c) have the legal effect of modifying Cl 12.5(d) of the RTD Award, so that a casual employee must be paid 15%, instead of 10% of 1/38th of the minimum weekly wage. However, the legal effect of Cl 22(c) is that the method for calculating the casual loading on overtime, is the same that applies under the RTD Award. This requires 15% of the base hourly rate of pay and adding the overtime loading. This method is demonstrated by the following example – assuming a base rate of $10.00 an hour on one hour of overtime:
(a)casual loading 1.5 base rate;
(b)overtime loading is $5 (half of base rate); and
(c)add (a) and (b) = $16.50.
The respondents rejected the Union’s submission that the purpose of Cls 22(b) and (c) and Cls 6(c) and (d); see: [2] and [7] above, was to carry over the casual loading formula from the NSW State Award. It was submitted that the words in Cl 5.3 of the State Award ‘in the case of casual employees, the overtime rate shall be calculated on the casual rate of pay’ (which is not replicated in the 2017 Agreement), provides a clear basis to conclude that the parties intended to deviate from the provisions of the NSW State Award. Further, given the 2013 Agreement did not provide for the provisions of the NSW State Award, it cannot be said that the 2017 Agreement ‘carried over’ the former NSW State Award. Moreover, reliance could not be had on the fact that Toll Transport applies the Union’s construction to its casual employees, because it has told the Union, on a number of occasions, that this was an ‘error’.
Finally, the Union’s evidence does not establish agreed objective background facts; rather, it is no higher than the subjective intentions of the Union during prior negotiations.
Part time overtime dispute
The respondents relied on the full terms of Cl 23 to submit that the words used have a plain, unambiguous meaning and are not susceptible to more than one meaning. When read as a whole, there is no requirement to pay overtime rates to Messrs Merriman, Tavakoli and Moylan when they request to work additional hours or days. The Union’s approach ignores the words ‘is required to work in excess of agreed hours’. The evidence of the Union’s witnesses is that they request work for additional hours or days. They are not ‘required’ to do so. It was accepted (similar to the RTD Award), that if a part time worker is required to work additional hours outside of agreed hours, overtime would be paid for all additional hours worked. In any event, Cl 12.4 of the RTD Award does not replicate the entitlement under Cl 23(c) of the 2017 Agreement.
Further oral submissions
For the Union
Mr Slevin emphasised that Cl 22(b) of the Agreement provides for the separate regulation of transport workers in NSW in relation to casual employment, compared with other casual workers in other states and territories. The language is unambiguous and provides for a 15% loading on all hours worked whether ordinary hours (which has a 1/12th loading) or overtime hours. The construction preferred by Toll produces a ‘hybrid’ calculation, which ignores the ordinary meaning of the words and the context of the subclause when the full clause is read as a whole, in particular by reference to Cl 22(c).
Mr Slevin submitted the subjective intention of the parties can be put aside because the objective intention is reflected in the documents and agreements which preserved the entitlements of NSW transport workers under the former NSW State Award. The starting point is the words in Cls 6(c) and (d) which have been repeated in agreement after agreement; see: [7] and [19] above. Mr Slevin also relied on the wording of Cl 5.3 in the NSW State Award which states:
‘5.3 Casuals - In the case of casual employees, the overtime rate shall be calculated on the casual rate of pay.’
Mr Slevin referred to Mr Olsen’s evidence which described the history of the industrial instruments from 2011, which included a shift from the NSW State Award to a national agreement. Cls 23(a) and (b) of the 2011 Agreement are in the same terms as the current Cls 22(a) and (b). Acknowledging Cl 8(e) is worded differently to current Cls 6(c) and (d), Mr Slevin said it has the same effect of providing entitlements to overtime provisions. Cl 8(e) states:
‘(e) For the avoidance of doubt, whether or not a Local Agreement applies, it is the intention of the Parties that:
(i) by entering into. this Agreement no Employee who is employed by Toll in New South Wales as at the Operative Date will lose any entitlements that they may currently have, arising out of any Instrument, in relation to:
A. their classification;
B. allowances (including meal allowances);
C. annual leave loading;
D. overtime; or
E. shift work loadings; and
(ii) to the extent that any Employees have such entitlements as at the Operative Date, Toll will continue to apply these entitlements at the sites where those Employees work, and will extend those entitlements to Employees who are employed by Toll at those sites after the Operative Date; and
(iii) the obligation by Toll to apply or offer those entitlements will not apply in relation to any new site or business established by Toll in New South Wales after the Operative Date.’
Mr Slevin noted that ‘instrument’ is defined as:
‘any instrument originally made as an award whether current, expired, displaced by force of legislation or otherwise, and can include the Award.’
Mr Slevin submitted that ‘Award’ means any Federal or State Award.
Turning then to the 2013 Agreement Mr Slevin referred to Cl 21(c); which provides:
‘For the avoidance of doubt, the casual loading on overtime hours is to be paid in addition to any overtime loading to which the Transport Worker is entitled.’
The same savings provision carried through into the 2017 Agreement.
Mr Slevin identified that one of the respondents, Toll Transport, has applied the construction for which the Union contends, but now asserts this was a mistake. As there is no evidence of what the mistake is, or how it arose, the submission rises no higher than an assertion which the Commission should give little weight to. Further, simply stating that the other respondent, Toll People, has adopted a different approach, fails to take the argument any further.
Toll’s submissions refer to the RTD Award and this must be seen in the context of Cl 6(a) of the 2017 Agreement which reads:
‘This Agreement incorporates the Award, provided that Part A of this Agreement and the Local Agreements will prevail over the Award to the extent of any inconsistency. An inconsistency will not arise simply because the Award provides a more beneficial entitlement to a Transport Worker than that contained in Part A of this Agreement.’
Mr Slevin said that in any event, the regime for overtime payments in the RTD Award, is irrelevant to the regime of overtime payments in the Agreement; see: Metal Trades Industry Association v Amalgamated Metal Workers’ and Shipwrights’ Union (1983) 152 CLR 632.
Mr Slevin also noted that the Award covers all employees Australia-wide, whereas Toll’s Agreements draw a clear distinction between the entitlements for NSW employees (15% loading on overtime) and employees in other States and Territories (10% loading on overtime). This analysis supports the proposition that there is no ambiguity in the words used in Cl 22.
In the alternative, Mr Slevin said that if ambiguity is found, an examination of the objective intention of the parties is reflected in the documents themselves, including from the 2011 Agreement onwards. Mr Slevin submitted that the ordinary meaning of the words would be that which the employees who voted for the Agreement/s understood at the time. When an employee read that a 15% loading applied for all hours worked, it was reasonable to conclude that this meant ‘if I work overtime, I get a 15% loading on that overtime rate’.
In questions from me as to why it had taken so long for employees to realise they were being allegedly underpaid, Mr Slevin said that the issue came to light about 12 months ago when an employee who worked for Toll People moved over to Toll Transport, where he was now paid according to the Union’s construction of this clause.
As to the Part Time Overtime dispute, Mr Slevin rejected Toll’s reliance on the fact that the practice is for employees to request additional work; not for Toll to require it. This submission misconstrues Cl 23 of the 2017 Agreement. Mr Slevin submitted that the evidence of the three part time employees’ hours, means that for any work performed outside of the agreed hours, as might vary from time to time, should be paid for at the overtime rate; see: Telstra Corporation Limited v Peisley [2006] FCAFC 79 (‘Peisley’).
For the respondents
Mr Prince submitted that reliance Peisley on does not assist the Union’s case in respect to the part time overtime dispute, as in Peisley, the employer initiated the extra work in respect to its right to require employees to work reasonable overtime. That is not the case here, where the witness evidence makes clear the employees volunteer for extra work. If the Union’s proposition was accepted, an untenable situation could arise where a part time employee could end up being paid substantially more than a full-time employee for the same hours.
As to the casual overtime dispute, Mr Prince said that Toll neither accepts that the NSW State Award was carried over into the 2017 Agreement in relation to this site, nor that Cl 6 of the 2017 Agreement is to the same effect as Cl 8 in the 2013 Agreement. Further, the Union did not deal with the concept of ‘Local Agreements’. This feeds into the ambit of the dispute – what are the instruments that are carried over, what gets carried over and what does not.
Mr Prince analysed the wording in Cls 22(a) and (b) and their effect; namely, a 23% loading applies to ordinary time hours but drops to 15% when the hours are overtime hours. This approach is consistent with the RTD Award, which also provides a lower casual rate for overtime hours. This is recognised by Cl 6(d) of the 2017 Agreement. The Union’s approach would result in ‘a loading on a loading’, both of which are directed to different purposes. This is inconsistent with the text, context and purpose of the Agreement. Mr Prince relied on the Macquarie Dictionary as to the definition of a loading; namely, ‘an extra rate paid to employees in recognition of a particular aspect of their employment, as shiftwork …’. He said that it makes perfect sense that one loading does not displace the other.
Mr Prince submitted that Cl 22(b) does not differentiate the rate of pay to all hours worked. The 1/12th makes sense because it is dealing with annual leave and ordinary hours worked in a year. Mr Prince put that the Union cannot say, on the one hand, you should have regard to the NSW State Award, but on the other, disregard the RTD Award provisions.
Mr Prince then dealt with Cl 8 in the 2011 Agreement, headed ‘Local Agreements’. The 2011 Agreement was an overarching agreement, which consolidated some agreements which had expired, and others which had not. An expired agreement would not be applicable by its own force. There is no proposition that any of the ‘Local Agreements’ applied, nor would it/they have applied at the Minchinbury site. While he agreed the word ‘instrument’ is broadly defined, ‘instruments’ get brought in via a ‘Local Agreement’, and no ‘Local Agreement’ was relevant to Minchinbury. Therefore, no former instruments are brought into the 2017 Agreement, as it applies at Minchinbury.
Further, Mr Prince put that because the 2011 Agreement commenced on 16 September 2011 which is after the NSW State Award ceased to operate. Therefore, the casual employees could not be said to have any entitlements from an instrument that no longer had any force, or effect. Mr Prince submitted that the use of the upper case in (A)ward in the definitions, was a reference to the Modern Award.
Mr Prince added that the fact Toll Transport has paid, and/or continues to pay employees according to the Union’s construction, does not assist in ascertaining the true legal obligation on Toll which can only be found in the language used in the 2017 Agreement.
In reply
Mr Slevin rejected the description of the Union’s case as seeking a ‘loading on a loading’. It is a loading on a payment, with this later word coming from the Overtime provisions in the RTD Award at Cl 27.1 which reads:
‘For all work done outside ordinary hours the rate of pay will be time and a half for the first two hours and double time thereafter, such double time to continue until the completion of the overtime work.’
As to Cl 8 in the 2011 Agreement, Mr Slevin submitted that the clause goes beyond the ‘Local Agreements’. In any event, the transitional arrangements in the Workplace Relations Act 1996, ‘preserved collective state agreements’ at Schedule 8. Further, the definition of ‘instrument’, includes any instrument, including one which is ‘displaced by force of legislation or otherwise’. The intention of Cl 8 is abundantly clear – to preserve existing entitlements, including ‘overtime’ provisions.
Finally, Mr Prince added that the problem for the Union’s case is it is trying to bypass the Toll Heads of Agreement 2005-2007 IRC5/1255 (Toll Heads of Agreement’), which did not cover the Minchinbury site.
CONSIDERATION
Relevant principles
Both parties appropriately relied on the ‘Berri Principles’ as being applicable to this matter. The ‘Berri Principles’ are 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 (sic) the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common assumption.
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.’
There is no doubt the ‘Berri Principles’ have as their foundation the long line of historic authority as to the approach to be applied by the Courts, Commissions and Tribunals when called upon to interpret the words in an industrial instrument. Prior to the preponderance of collective agreements and enterprise agreements, this was usually applied to Awards. Recent iterations of the legislative framework necessitated a refinement of these principles in Golden Cockerel; but some of the basic fundamentals remain. I refer to some of these cases to make good this proposition.
I refer back to some of the early well-known cases which dealt with the construction of Awards. In City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426, French J said at [53]:
‘53 The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘... the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘... ideas that gave rise to an expression in a document from which it has been taken’ – Short v FW Hercus Pty Ltd [1993] FCA 51; (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services Union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J).’
Then at paragraph 57, His Honour observed:
‘57 It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities – City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned – see eg Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499 at 503-4 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):
‘Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.’’
Madgwick J in Kucks v CSR Limited [1996] IRCA 1966 opined that a narrow, pedantic approach to interpretation should be avoided; a search of the evident purpose is permissible and meanings which avoid inconvenience or injustice may reasonably be strained for, but:
‘... the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.’ (my emphasis)
For a useful recent summary of the principles of Award construction see: Swissport Australia Pty Ltd v Australian Municipal Administrative Clerical and Services Union (No 3) [2019] FCA 37 per Rangiah J.
As the legislative focus shifted towards agreement making, the same principles were recognised to apply to the interpretation of enterprise agreements. In Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 (‘Amcor’), the High Court (Gummow, Hayne and Heydon JJ) said:
‘Clause 55.1.1 must be read in context. It is necessary, therefore, to have regard not only to the text of cl 55.1.1, but also to a number of other matters: first, the other provisions made by cl 55; secondly, the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it; and, thirdly, the legislative background against which the Agreement was made and in which it was to operate.’
In Amcor, His Honour Kirby J said:
‘However, certified agreements such as this commonly lack the precise drafting of legislation. As appears from a scrutiny of the provisions of the Agreement, it bears the common hallmarks of colloquial language and a measure of imprecision. Doubtless this is a result of the background of the drafters, the circumstances and possibly the urging of the preparation, the process of negotiation and the omission to hammer out every detail - including possibly because such an endeavour would endanger the accord necessary to consensus and certification by the Commission.
. . .
The nature of the document, the manner of its expression, the context in which it operated and the industrial purpose it served combine to suggest that the construction to be given to cl 55.1.1 should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement. Approaching the interpretation of the clause in that way accords with the proper way, adopted by this Court, of interpreting industrial instruments and especially certified agreements. I agree with the following passage in the reasons of Madgwick J in Kucks v CSR Ltd, where his Honour observed:‘It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.’ (references omitted)
Again, in Amcor, His Honour Callinan J said there was substance in the observations of Madgwick J in Kucks. His Honour then said:
‘An industrial agreement has a number of purposes, to settle disputes, to anticipate and make provision for the resolution of future disputes, to ensure fair and just treatment of both employer and employees, and generally to promote harmony in the workplace. It is with the third of these that cl 55 of the Agreement is particularly concerned. It is important to keep in mind therefore the desirability of a construction, if it is reasonably available, that will operate fairly towards both parties.’
In Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 (‘Codelfa’) Mason J, as he then was, (and with whom Stephen, Aickin and Wilson JJ agreed) said:
‘The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.
It is here that a difficulty arises with respect to the evidence of prior negotiations. Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable. The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They are superseded by, and merged in, the contract itself. The object of the parol evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction, though admissible in an action for rectification.
Consequently when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of the contract, except in so far as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties’ presumed intention in this setting. We do not take into account the actual intentions of the parties and for the very good reason that an investigation of those matters would not only be time consuming but it would also be unrewarding as it would tend to give too much weight to these factors at the expense of the actual language of the written contract.’
In Re Aurora Energy Enterprise Partnership Agreement 2002 – 2005[2008] AIRC 1074 at [17], Lacy SDP observed that:
‘It is a widely accepted principle of statutory interpretation that the rules of construction are rules of common sense. Where the choice is between an interpretation that will result in inconvenience, injustice or absurdity and another which avoids such a result, then the latter ought to be adopted.’
The nature of the present task was emphasised by the Full Bench in DP World Brisbane Pty Ltd v The Maritime Union of Australia[2013] FWCFB 8557 in the following terms:
‘[31] Importantly, the task of interpreting an enterprise agreement does not involve re-writing a provision in order to give effect to the Commission’s view of what would be fair and just, without regard to the terms of the agreement. As Madgwick J observed in Kucks v CSR Limited:
‘But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.’
All of the above observations are concordant with the approach taken in Golden Cockerel and Berri. In short, the Commission’s task is to ascertain the objective intention of the contested words, based upon the language and terms of the 2017 Agreement, when read as a whole, having regard to its context and purpose.
Applying the principles to the Casual Overtime Dispute
Both parties contend that the words in Cl 22 of the 2017 Agreement are plain, clear, certain and unambiguous, and are not susceptible to more than one meaning. I agree with this contention. However, it is important to note that even if there is no ambiguity apparent on the face of the language used, it is permissible to have regard to evidence of surrounding circumstances to aid in determining whether ambiguity exists; see: Berri at [114] sub-para (8). Obviously, the parties’ respective constructions are diametrically in conflict. Of course, they cannot both be right, or perhaps they might both be wrong. That said, however, I consider the Union’s construction of Cl 22 of the 2017 Agreement must be accepted. Further, the Union’s arguments are both compelling and consistent with the principles applying to the construction of enterprise agreements, earlier referred to.
The construction of words in an enterprise agreement are ascertained by the context and purpose of the clause in which they appear and within the context and purpose of the agreement when viewed as a whole. When examined in this way, in my opinion, it seems unarguable, by reference to:
(a)the express language used in Cl 22; and
(b)a number of clauses separate, but related to Cl 22; and
(c)to the objective history of agreement making,
that the Union’s construction is correct. These are my reasons.
Firstly, the clear and specific purpose of Cl 22 is to provide different and more beneficial arrangements for casual transport workers in New South Wales, than casual transport workers employed elsewhere in the Commonwealth. Even putting aside the substance of this dispute, this distinction is further demonstrated by the fact that under the Modern Award, applying Australia-wide, a 10% loading applies on overtime, while under the 2017 Agreement, New South Wales casual workers are paid a 15% loading on overtime.
Secondly, the subjective evidence of the words used in the predecessor Agreements in 2011 and 2013, and the words and language carried over to the 2017 Agreement, established the parties’ clear and unequivocal intention to ensure that the terms and conditions enjoyed by NSW transport workers generally prior to 2011 were to be preserved and carried over into subsequent agreements.
On any view, these circumstances are objective background, notorious facts, known and accepted by the same parties who are now parties to the 2017 Agreement. Such objective facts whether known, or presumed to be known, can be used as an aid to construction; see: Berri at [110] sub-para (12). They are not necessarily evidence of the subjective intentions of the parties, although those objective facts are consistent with Mr Olsen’s subjective evidence; see: Berri at [110] sub-para (11). In Codelfa, Mason J, as he then was, said at p 352:
‘… when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of the contract, except in so far as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties' presumed intention in this setting.’
In my view, there could hardly be a more unequivocal and continuing intention – almost to the point of overstatement – when words are used such as ‘for the avoidance of doubt Toll will ensure that no transport worker will lose any entitlement they may currently have arising out of any instrument’ (my emphasis) and which then expressly identifies ‘overtime’ as one of those entitlements at Cl 6(d).
Further, I reject Toll’s submission that ‘instrument’ and the reference to ‘Award’, is limited to the RTD Award. Again, when words are used defining an instrument as one expired, replaced by force of legislation, there can be no doubt that ‘instrument’ and ‘Award’ includes the NSW State Award, and hence, includes the benefits which had applied under that Award.
In addition, I reject the references to the terms and conditions of the RTD Award as being relevant to the interpretation of the words in the 2017 Agreement. The construction of words in the 2017 Agreement are not ambiguous or unclear and sit entirely independently and separate to what are essentially minimum terms and conditions under a modern award.
Further, I do not accept that the Toll Heads of Agreement should be limited, or was intended to exclude a particular site, such as Minchinbury, where it was not expressly stated that any site was to be excluded from the overarching intention expressly set out in Cl 22(c) of the 2017 Agreement. I note the Objects and Application of the Toll Heads of Agreement which at Cls 6 and 7 reads:
‘6. Objects
The objects of the Agreement are to:
(a) enhance the productivity and efficiency of the Company's operations;
(i) promote job security for transport workers and provide them with access to more varied, fulfilling and better paid jobs; and,
(ii) provide transport workers with a just measure of income and entitlements protection.
7. Application of This Agreement
(a) This Agreement shall apply to following business units:
(i) Toll Networks
A. Toll SPD
B. Toll Express
C. Toll Tasmania
D. TollIpec
E. Toll Fleet
F. Toll Refrigerated
G. Toll Priority
H. Toll Regional
I. Toll Local
(ii) Toll Logistics
A. Toll Auto Logistics
B. Toll Food and Beverage
C. Toll Personnel
D. In2store
E. Toll Liquids
F. Toll Industrial
G. Toll Ports
(iii) Toll North
A. NQX
B. Toll Refrigerated
C. R & H Transport
(b) The parties will discuss the applicability of this Agreement to future acquisitions made by Toll with respect to employees that would fall within the jurisdiction of this Agreement’
In summary, the correct construction of Cl 22 of the 2017 Agreement is that casual transport workers employed by Toll in NSW are entitled to a 15% loading on all hours worked, including overtime hours.
Part time Overtime Dispute
Notwithstanding the only statement evidence of Toll employees related to this dispute, the consideration and determination of the disputed clause (Cl 23) is narrower than the casual overtime dispute. Seemingly, this was also reflected, perhaps understandably, with a lesser focus on this issue in the parties’ submissions. Applying the principles of construction to Cl 23, I cannot accept the Union’s interpretation that part time employees who work in excess of their agreed days or hours should be paid overtime rates for such days or hours. These are my reasons.
Clause 23 (as also set out at [2] above) provides as follows:
‘23. Permanent Part-time Transport Workers
(a) A Permanent Part-Time Transport Worker is one who is rostered to work:
(i) less than 7.6 hours on a given shift; or
(ii) less than 38 hours in a week.
(b) On commencement of employment, Toll and a Permanent Part-Time Transport Worker will agree on the hours and days in each week that the Transport Worker will work.
(c) Any hours which a Permanent Part-Time Transport Worker is required to work in excess of those agreed under clause 23(b) will be paid at overtime rates.
(d) Toll and a Permanent Part-Time Transport Worker may agree to vary the Transport Worker's hours and days of work, provided that this may not be used as a device to avoid Toll's responsibilities under clause 23(c), for example by making ad hoc or regular changes.’ (my emphasis)
The Union’s focus was on the words ‘work in excess of agreed hours’. Standing on their own, these words are clear and unambiguous and might ordinarily support the Union’s argument. However, the context and purpose of the whole clause being, in my view, clear and unambiguous, means the Union’s argument cannot be sustained. It ignores the functional and operative words preceding ‘work in excess of’ agreed hours, being ‘is required to work in excess of agreed hours’ (my emphasis). The Macquarie Dictionary variously defines ‘required’ as ‘to call on authoritatively, or enjoin a person to do something; to call for or exact as obligatory; to make demand; impose obligation or need.’
It is beyond doubt, that the trigger for overtime is that Toll requires the employee to work in excess of agreed hours and not otherwise, such as where the part time employee requests or volunteers for such work. The uncontested evidence of the three employees, corroborated by Mr Annetts, is that Toll does not require a part time employee to work beyond their agreed hours. Indeed, an employee must expressly nominate their availability to work excess hours through a WRF. It is voluntary and optional. It is not obligatory, mandatory or demanded by Toll; let alone requested by Toll. If the work is not able to be covered by permanent employees, which does not happen, Toll can offer such work to casuals, labour hire, or fleet operators.
Moreover, there are no adverse ramifications if a part time employee does not volunteer or offer oneself for additional work. The fact a part time employee regularly works extra days or hours and may have done so for years, is not the point. It is entirely their choice. Clause 23 does not contemplate the payment of overtime for work in excess of agreed hours unless required by Toll. Mr Annetts’ evidence was that if Toll required a part time employee to work in excess of their agreed hours then most certainly overtime would be paid. The fact these circumstances have not arisen is, again, not the point.
Moreover, although not determinative, I note there is no reference to being ‘required to work’ in the RTD Award. The corresponding provision in the Award is found at Cl 12.4(h) and reads:
‘All time worked in excess of the agreed hours referred to in Cl 12.4(b)(i) will be paid at the appropriate overtime rate.’
In summary then, the correct construction of Cl 23 in the 2017 Agreement does not mean Toll must pay overtime to part time employees where Toll does not require such employees to work in excess of agreed hours.
CONCLUSION
For the foregoing reasons, I answer the questions in [13] above as:
(a)Question (1) is answered in the affirmative.
(b)Question (2) is answered in the negative.
(c)An answer to Question (3) is unnecessary.
The dispute is determined accordingly, and these proceedings are thereby concluded.
DEPUTY PRESIDENT
Appearances:
Mr A Slevin, of Counsel, and Mr G Webb, Chief Legal Officer for the Union.
Mr S Prince, of Senior Counsel, and Ms F James, Senior Manager – Employee and Industrial Relations, for Toll.
Hearing details:
2019.
Sydney:
17 October.
Printed by authority of the Commonwealth Government Printer
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