Transport Workers' Union of Australia v Torrens Transit Services Pty Ltd

[2021] FWC 662

[2021] FWC 662

FAIR WORK COMMISSION

DECISION

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

Transport Workers' Union of Australia
v
Torrens Transit Services Pty Ltd
(C2020/8361)

Passenger vehicle transport (non-rail) industry
DEPUTY PRESIDENT ANDERSON	ADELAIDE, 16 FEBRUARY 2021

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]- bus drivers – transferrable instrument - broken shift penalties – overtime rates – principles of interpretation – common intention – penalty and overtime rate operate cumulatively – dispute determined

[1] On 13 November 2020 the Transport Workers’ Union of Australia (TWU or the Applicant Union) filed a dispute in the Commission under section 739 of the Fair Work Act 2009 (the FW Act). The application was made by a South Australian-based official, Matthew Burnell.

[2] The Respondent to the dispute is Torrens Transit Services Pty Ltd (Torrens Transit or the Respondent Employer).

[3] The subject matter of the dispute is the SouthLink Bus Drivers 2017 Enterprise Agreement (the Agreement) and in particular the application of Part 3 clause 20 Shift Penalty Rates and clause 21 Overtime in circumstances where rostered overtime is worked whilst a driver performs a broken shift with a spread of more than ten hours.

[4] The Agreement binds the Respondent Employer and persons it employs performing bus driver duties in certain regions of Adelaide, South Australia.

[5] The Applicant Union is an employee organisation covered by the Agreement.

[6] The dispute came before the Commission under the Dispute Settlement Procedure of the Agreement (Part 1 clause 9). The dispute arose at the workplace level but did not resolve. It was referred to the Commission by the TWU under clause 9.4 of the Agreement. 1

[7] The application was conciliated on 27 November 2020. Following conciliation, the TWU and Torrens Transit engaged in further private discussion. Notwithstanding the good faith nature of that process, the dispute remained unresolved.

[8] The TWU sought arbitration under clause 9.5(b).

[9] On 16 December 2020 I issued directions requiring the filing of materials and the preparation of agreed facts.

[10] I granted permission 2 for Torrens Transit to access historical records of the Commission concerning applications for approval of antecedent agreements made by a predecessor employer, SouthLink Pty Ltd (SouthLink).

[11] I heard the matter by telephone on 9 February 2021. Both the TWU and Torrens Transit were represented by counsel, with permission. 3

[12] I received into evidence, by consent, witness statements of two persons called by the TWU – neither of whom were required for examination⁴:

•  Matthew Burnell (Senior Branch Official, Transport Workers’ Union SA Branch); and

•  John Kilyen (Bus Driver, SouthLink and Torrens Transit).

[13] Other documents were admitted by consent.

[14] In determining this matter I have regard to all material before me, including the documentary evidence, the Agreement and the written submissions 5.

Agreed Facts

[15] The TWU and Torrens Transit submitted the following agreed facts:

“1. Effective from 5 July 2020, Torrens commenced operation of a public bus service in the Outer North contract area in the Adelaide Metro public bus network, under a contract with the South Australian Government.

2. The TWU represents the industrial interests of its members employed by Torrens Transit who perform bus driving duties in the Outer North contract area.

3. Southlink Pty Ltd (Southlink) was responsible for operating the Outer North contract region, under a contract with the South Australian Government that ended on 30 June 2020.

4. Employees formerly employed by Southlink commenced employment with Torrens within three months of the termination, to perform the same work. The employees are 'transferring employees' in accordance with s 311 (2) of the Fair Work Act 2009 (FW Act)

5. Torrens acquired the beneficial use of Southlink assets. The acquisition of the assets creates a connection between Southlink and Torrens for the purposes of s 311 (3) of the FW Act.

6. There was a transfer of business between Southlink and Torrens.

7. The Southlink Bus Drivers 2017 Enterprise Agreement (2017 Agreement) covers and applies to the bus drivers who are the subject of this dispute as well as Torrens. The 2017 Agreement is a transferring instrument for the purposes of Division 2 of Part 2-8 of the FW Act.

8. The TWU is covered by the 2017 Agreement in accordance with ss 201(2) and 315(3) of the FW Act. Accordingly, the 2017 Agreement applies to the TWU and the (Union) is able to notify a dispute under the dispute settlement procedure contained at Clause 9 of the Agreement.

9. Torrens and the TWU have satisfied the obligations of Clause 9 prior to bringing the dispute to the Fair Work Commission (Commission) and the Commission has jurisdiction to determine the dispute.

10. Prior to the 2017 Agreement, Southlink had made four (4) enterprise agreements that applied in the Outer North contract area with its employees. These enterprise agreements are the SouthLink Outer North Enterprise Agreement 2005, SouthLink Collective Agreement 2006, SouthLink Bus Drivers 2010 Enterprise Agreement and the SouthLink Bus Drivers 2014 Enterprise Agreement.

11. The parties are in dispute as to what an employee is to be paid when they work a broken shift on a weekday, where the duty is performed outside a spread of 10 consecutive hours and is not voluntary overtime.

Issue to be determined

[16] The TWU identify the following issue requiring determination:

“In circumstances where employees to whom the 2017 Agreement covers and applies are rostered to perform duty on a broken shift that is outside a spread of ten consecutive hours and in excess of 7.6 hours of rostered duty on a weekday, is Torrens required to pay such employees the penalty applicable under clause 21.2.1 in relation to overtime in addition to the penalty applicable for broken shifts outside a spread of ten consecutive hours under clause 20.1.2(a)?”

[17] Torrens Transit do not take issue with the question posed, though point out that the question could be framed in a number of different ways.

[18] Having heard the parties, the issue in dispute is clear. In practical terms, it is whether, in the relevant circumstances, Torrens Transit is only obligated to pay the higher of the broken shift penalty or the overtime rate, or (conversely) whether it is obligated to pay both rates cumulatively.

[19] The relevant circumstance is where, on a Monday to Friday, a bus driver under the Agreement is rostered to work overtime (and works the overtime) on a day when the driver also works a broken shift and the spread of hours worked from the commencement of that shift until the completion of that day’s work is more than ten hours.

[20] Equally the question could be posed as, where a driver is entitled to a broken shift penalty and an overtime rate on the same Monday to Friday shift, then are both amounts payable, or one only (and if so, which one)?

[21] I am satisfied that answering the question as posed by the TWU, which I will do, will answer these other formulations of the issue in dispute.

Facts

[22] Aside from the agreed facts, a number of other facts emerge from the evidence and are relevant to determination of this matter. They are largely not in dispute and I make the following further findings.

[23] The Agreement was made on 7 March 2017 between SouthLink Pty Ltd and employees covered by the Agreement. 6 It was submitted by SouthLink for approval by the Commission shortly thereafter, accompanied by an employer’s statutory declaration (F17) signed by an officer of SouthLink (Mr Conlon).7

[24] The Agreement was approved by the Commission on 4 April 2017 and operated from 11 April 2017. 8

[25] The Agreement has not reached its nominal expiry date (10 April 2021). 9

[26] Torrens Transit became the operator of the relevant bus operations (and the employer of drivers under the Agreement) from 1 July 2020, part way into the life of the Agreement.

[27] Torrens Transit became bound by the Agreement by force of law (the FW Act).

[28] Torrens Transit and SouthLink are not associated entities.

[29] It was the predecessor employer, SouthLink and not Torrens Transit, who negotiated the Agreement (and its antecedent agreements) with employees and employee representatives (the TWU).

[30] From time to time, Torrens Transit roster a driver to work a broken shift on a Monday to Friday. A broken shift occurs where a driver commences work twice in the one shift. From time to time (but not always) the commencement of the broken shift and the completion of the broken shift spans more than ten hours. From time to time (but not always) the number of hours of driving undertaken on a broken shift exceeds 7.6 hours.

[31] One such driver who has worked broken shifts of this type is Mr Kilyn. Mr Kilyn has worked such shifts for both Torrens Transit and formerly, for SouthLink.

[32] An indicative shift of this type is that which was worked by Mr Kilyn for Torrens Transit on 14 October 2020. His roster that day was as follows:

•  start driving 6.08am

•  finish driving 10.52am

•  break (3 hours 13 minutes)

•  recommence driving 2.05pm

•  finish driving 6.57pm.

[33] On this day, 14 October 2020, Mr Kilyn’s total spread of hours was 12 hours 49 minutes (6.08am to 6.57pm).

[34] On this day, 14 October 2020, at 4.08pm Mr Kilyn’s workday reached a spread of ten consecutive hours. He then drove for 2 hours 49 minutes beyond that ten hour spread.

[35] At 4.57pm on this day, 14 October 2020, Mr Kilyn had driven for 7.6 hours (7 hours 36 minutes). 10 Mr Kilyn then worked two further hours (exactly) after 4.57pm before ceasing work on the day.

[36] Torrens Transit did not pay Mr Kilyn the cumulative sum of both the broken shift penalty and the overtime rate on 14 October 2020. Torrens Transit paid the higher of either sum (in this instance, it paid the broken shift penalty).

[37] This has been the practice of Torrens Transit since it commenced employing drivers under the Agreement on 1 July 2020.

[38] On 9 November 2020 Mr Kilyn raised a payroll query with Torrens Transit concerning the non-payment of the cumulative sums. 11

[39] In contrast, from the commencement of the Agreement and until 1 July 2020, the previous employer (SouthLink) paid drivers working this (or a comparable roster) the cumulative sum of both the broken shift penalty and the overtime rate.

[40] SouthLink had applied a similar approach under the three immediately preceding agreements – the 2014 Agreement 12, the 2010 Agreement13 and the 2006 Agreement14.

[41] The evidence is less clear, and I do not make a finding, as to whether SouthLink applied a similar or different approach under the two further preceding Agreements – the 2005 Agreement 15 and the 2000 Agreement16. Nor are the relevant terms of the 2005 Agreement comparable to the 2006, 2010, 2014 and 2017 Agreement.17

Relevant provisions of the Agreement

[42] Clause 20.1 of the Agreement relevantly provides:

20. SHIFT PENALTY RATES

20.1 The following shift penalty rates shall apply and be calculated on the base hourly rate

20.1.1 Monday to Friday

Except for voluntary overtime, Public Holiday, Saturday, Sunday and Broken shift duty, all duty worked before 7:00a.m. and after 7:00p.m. shall be paid 15 per cent more than ordinary rates and shall stand alone.

20.1.2 Broken Shifts

20.1.2(a) Employees may be required to work broken shifts provided that all duty performed outside a spread of ten consecutive hours shall be paid at the rate of time and one-half and shall stand alone.

20.1.2(b) When any broken shift is worked as voluntary overtime the broken shift penalties of this clause shall not apply.

[43] Clause 21 of the Agreement relevantly provides:

21. OVERTIME

21.1 General principles

21.1.1 The employer may require any employee to work reasonable overtime provided that where an employee works a combination of rostered driving duty and voluntary overtime, the total duty will not exceed twelve hours driving duty in any one day.

21.2 Daily overtime rates

21.2.1 Rostered duty in excess of 7.6 hours per day (Monday to Friday excluding Public Holidays) performed by an employee shall stand alone and be paid at the rate of time and one half and be calculated on the employees base hourly rate.

21.3 Voluntary overtime register

21.3.1 A register of employees who agree to be available to perform duty other than what appears on their roster shall be maintained by the employer.

21.4 Overtime rates

21.4.1 Monday to Saturday.

All duty rostered as overtime shall be paid at the rate of time and one-half for time worked.

CLAUSE 22. MAXIMUM OF SHIFT AND OVERTIME RATES

Shift rate and overtime rates contained in clauses 20.1.3, 20.1.4, 20.1.5, 20.1.6 and clause 21.2 shall not be cumulative, however the employee shall be paid at the highest rate in respect of the duty worked for that day.

Submissions

TWU

[44] The TWU submit that the proper interpretation of the Agreement, read as a whole and in context, is that the employer is required to pay both the broken shift penalty and the overtime rates in the relevant circumstances.

[45] The TWU says that this is the proper textual application of the language of clauses 20 and 21 in particular.

[46] The TWU further submit that contextual factors support such an interpretation. It says that the purpose of the payments are to deal with different and distinct disabilities. It says that, unlike certain other circumstances, the cumulative application of the broken shift penalty and the overtime penalty is not excluded by the specific language of the Agreement.

[47] Finally, the TWU submit that custom and practice since at least 2005, in which the employer has applied comparable clauses in a cumulative manner to the relevant circumstances, constitute evidence of a common mutual intention which should be taken into account in interpreting the Agreement.

[48] The TWU submit that Torrens Transit, by virtue of the Agreement being a transferring instrument under the FW Act, inherited and cannot abrogate the common intention that existed between the former employer and its employees.

[49] The question should, according to the TWU, be answered in the affirmative.

Torrens Transit

[50] Torrens Transit submit that the Agreement is ambiguous and poorly drafted. It submits that this notwithstanding, the proper interpretation of the Agreement, read as a whole and in context, is that the employer is only required to pay the higher of the broken shift penalty or the overtime rate in the relevant circumstances, but not both.

[51] Torrens Transit further submit that its approach is consistent with the long-standing industrial principle that a penalty should not be paid upon a penalty.

[52] Torrens Transit submit that it is not an associated entity of SouthLink and is not bound to apply the Agreement in a particular way, even if SouthLink did so as claimed by the TWU. It further submits that if SouthLink’s custom and practice was to apply the rates cumulatively as claimed, there is no evidence that it did so because it held a legal obligation to do so.

[53] Torrens Transit submit that if there was a common intention to apply the Agreement in the manner claimed, this would have been disclosed to the Commission by its officer when Mr Conlon made the statutory declaration in support of the Agreement’s approval in 2017. No such assertion is made in that declaration.

[54] Finally, Torrens Transit submit that clause 22 of the Agreement should be read as containing a typographical error and that the reference in that clause to clauses 20.1.3 and 20.1.4 should instead be understood as references to clauses 20.1.1 and 20.1.2.

[55] The question should, according to Torrens Transit, be answered in the negative.

Consideration

[56] Principles for construction of enterprise agreements are well established. Interpretation of the instrument should be founded on language used in light of the Agreement read as a whole and its industrial, commercial and legislative context and purpose. 18

[57] These principles reject “narrow or pedantic approaches” and recognise that those who draft such provisions are likely to have “a practical bent of mind” and 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.” 19 As more recently stated by the Full Court of the Federal Court:20

“Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry.”

[58] Surrounding circumstances (drawn from objective background facts including the industrial context known to the ‘parties’) can inform the interpretation of an Agreement; for example, where there are equally open alternate interpretations of its terms or where the language used is ambiguous. 21 Surrounding circumstances may include relevant history of the disputed provision:22

“Recourse may be had to the history of a particular clause “where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form …”

[59] Further, all words in an enterprise agreement must prima facie be given some meaning and effect. 23 The construction should “contribute to a sensible industrial outcome” and one “that will operate fairly towards both parties.”24

[60] However, the task of the Commission is not to rewrite or reframe the policy intent of an industrial instrument. 25 It is a narrower undertaking: to interpret an Agreement according to its language consistent with these canons of construction.

[61] For the following reasons, and having regard to these principles, I consider that the construction of the Agreement advanced by the TWU is the correct construction, and the basis upon which this dispute is to be determined.

Textual – language

[62] Both of the clauses under which the payment obligation exists are expressed in mandatory terms.

[63] Clause 20.1.2(a) provides that where there is a requirement to work a broken shift, all duty performed outside the ten hour spread “shall be paid at the rate of time and one half and shall stand alone” (my emphasis).

[64] Similarly, clause 21.2 provides that rostered duty performed in excess of 7.6 hours Monday to Friday “shall stand alone and be paid” at the relevant overtime rate (time and a half) (my emphasis).

[65] Further, the express language used in these mandatory provisions supports an interpretation whereby the application of these provisions is cumulative. Each provision independently and expressly provides that it “shall stand alone” (my emphasis). This phrase must be given work to do. The ordinary meaning of the phrase “shall stand alone” is that each clause establishes a separate and distinct condition of employment to be applied independently of other conditions of employment provided for by the Agreement.

Contextual – cumulative application not excluded

[66] The interpretation of the language of the provisions in dispute must be made in the context of the Agreement read as a whole.

[67] A clear insight into the meaning and intended interaction of the broken shift penalty and the rostered overtime rate arises from the fact that, unlike other rates in the Agreement, the cumulative application of both rates is not excluded.

[68] Three provisions are pertinent.

[69] Clause 22, which immediately follows the Shift Penalties Rates clause (clause 20) and the Overtime Clause (clause 21) provides:

“22. MAXIMUM OF SHIFT AND OVERTIME RATES

Shift rate and overtime rates contained in clauses 20.1.3, 20.1.4, 20.1.5, 20.1.6 and clause 21.2 shall not be cumulative, however the employee shall be paid at the highest rate in respect of the duty worked for that day.”

[70] Clause 22 is an express clause setting out that certain shift rates and overtime rates are NOT cumulative. The shift rate clauses referred to are clauses 20.1.3 (Saturday shift), 20.1.4 (Sunday shift), 20.1.5 (Public Holiday shift) and 20.1.6 (part day Public Holiday shift). There is no reference to clause 20.1.1 or 20.1.2. It is from clause 20.1.2 that the obligation to pay the broken shift penalty rate on Monday to Friday arises.

[71] The effect of clause 22 in the context of this dispute is two-fold.

[72] Firstly, it cannot be relied upon by Torrens Transit to pay the higher (in lieu of both) of the shift penalty and the overtime rate with respect to broken shifts worked Monday to Friday. This is only specified as permissible with respect to broken shifts worked on Saturdays, Sundays and Public Holidays.

[73] Secondly, a clear inference can be drawn that the Agreement, by expressly providing that certain shift penalties only are not cumulatively payable with overtime, has intended other shift penalty rates to be cumulatively payable if the relevant broken shift and overtime circumstances arise.

[74] I do not accept the employer’s submission that clause 22 of the Agreement should be read as containing a typographical error such that the reference to “clauses 20.1.3 and 20.1.4” should instead be read as a reference to clauses 20.1.1 and 20.1.2. The reference to “clause 21.2” has obvious work to do – it is the clause that sources the “overtime rates” referred to in the opening phrase of clause 22. The opening phrase “shift rate and overtime rates” is then logically followed by a recitation of the specific clauses intended to be captured; four of which are shift rates and one of which is an overtime rate. There is no illogicality reflective of a typographical error. The employer’s submission involves rewriting the Agreement to suit its contention. Absent the proper application of the slip rule, it is impermissible to re-write an Agreement when interpreting it.

[75] Clause 20.1.2(b) is also relevant. It deals specifically with the interaction between one form of overtime (voluntary overtime) and the broken shift penalties. It provides:

“20.1.2(b) When any broken shift is worked as voluntary overtime the broken shift penalties of this clause shall not apply.”

[76] The overtime in dispute in this matter is not voluntary overtime. It is rostered overtime. The distinction between the two is plain on the face of the Agreement. Clause 21 is replete with contrasting references between “voluntary overtime” (and a register of voluntary overtime) and “rostered driving duty” “rostered duty” and “duty other than what appears on their roster”.

[77] The Agreement expressly provides that broken shift penalties do not apply when worked as voluntary overtime, and only voluntary overtime is carved out in this manner by clause 20.1.2(b).

[78] Similarly, it is only voluntary, and not rostered, overtime that is carved out from the shift penalty rate of 15% that applies for hours worked before 7am and after 7pm under clause 20.1.1.

[79] Unlike provisions of the Agreement excluding the cumulative operation of other rates and penalties in the Agreement, the cumulative operation of the broken shift penalty and the rostered overtime rate is not excluded by those provisions. This is a strong contextual factor supporting an interpretation whereby broken shift penalties and rostered overtime rates operate in conjunction with the other and are payable cumulatively.

Contextual - purpose

[80] It is readily apparent, as with Mr Kilyn’s roster on 14 October 2020, that an overlap can occur where a driver is working hours beyond ten hours in the one day and doing so during a broken shift (triggering the broken shift penalty) and, at the same time, those driving hours are in excess of 7.6 hours on that day (triggering the overtime rate).

[81] There is no irrational consequence arising from the cumulative application of these clauses in instances of overlap.

[82] Firstly, the circumstance where a broken shift is worked under clause 20.1.1 and, at the same time, rostered overtime is worked under clause 21.2.1 is a consequence of rostering. Neither clause necessarily overlaps. The overlap is not a necessary consequence of the fact of a broken shift or the fact of rostered overtime. It is a consequence only of the fact that a particular roster with this effect has been set by the employer and required of the employee.

[83] Secondly, each clause has its own purpose such that the penalties are directed at different disabilities. This is readily apparent from the fact that the broken shift penalty applies even in circumstances where rostered overtime is not worked, and vice versa. A rostering principle expressly provided for in the Agreement is:

“19.2.1 Duty shall be arranged:

(…)

(g) So as to avoid duty on any shift exceeding ten hours driving.”

[84] Given that the broken shift penalty becomes payable only once a spread of ten hours has been worked, it can reasonably be concluded that the broken shift penalty is designed to “avoid’ (or deter) such a roster being set.

[85] Conversely, the rostered overtime rate arises after 7.6 hours are worked (not ten) and this rate only applies to rostered overtime (not voluntary overtime). In contrast to clause 19.2.1, the overtime rostering principle in clause 21.1.1 is that:

“the employer may require any employee to work reasonable overtime…”

[86] It cannot thus be said that the overtime penalty exists to deter overtime being rostered. Rather than to be avoided, overtime can be rostered where reasonably required. The overtime rate is not set as a deterrent. The clear inference is that the overtime rate compensates for something else – such as the fact that the standard (or ordinary) length of a daily shift has already been reached once required overtime is worked.

[87] Given the different purposes of the two payments, and given that a cumulative obligation arises only where there is rostering overlap and not as a natural consequence of the very existence of these clauses, I conclude that each clause has its independent work to do and each is capable of operating sensibly alongside the other in the context of the Agreement read as a whole.

[88] These contextual considerations support an interpretation whereby the clauses have cumulative application.

Contextual – surrounding circumstances

[89] The history of antecedent agreements governing the work of the relevant drivers are relevant surrounding circumstances. This history provides assistance to the interpretation of the disputed provisions.

[90] Of relevance is the fact that each of the three antecedent agreements (2014, 2010 and 2006) contain comparable provisions to the 2017 Agreement whereby both broken shift penalties and rostered overtime rates are provided for, and are not excluded from having cumulative operation. Clauses in these antecedent Agreements comparable to clause 22 exist in similar terms.

[91] Also of relevance is that since at least 2006, the then employer (SouthLink) and drivers (represented by the TWU) have applied the comparable terms of then operating agreements in the same manner now contended by the TWU.

[92] In view of the fact that the 2017 Agreement is in comparably the same terms, this custom and practice constitutes evidence of a common mutual intention having existed between those that made the 2017 Agreement that the broken shift penalty in clause 20.1.2 and rostered overtime rate in clause 21 apply cumulatively.

[93] The submission by Torrens Transit that this common intention, if it had existed, would have been referred to by the then employer in its 2017 statutory declaration to the Commission is unconvincing.

[94] Firstly, whilst Torrens Transit correctly identify that the statutory declaration made no reference to the Agreement being more beneficial than the underpinning Award in these respects, the declaration is simply the product of what the relevant officer considered appropriate to reference. No evidence is before me as to why Mr Conlon of SouthLink attested to what he did, or why he didn’t address the broken shift / overtime issue.

[95] Secondly, clause 5 of the Agreement expressly provides that the Passenger Vehicle Transportation Award 2010 is “completely excluded” from application to drivers under the Agreement. Given that, the operation of the Award (whatever its terms may be) does not provide assistance to discerning the common intention of the parties to the Agreement.

[96] Thirdly, Mr Kilyn’s evidence 26 is that nothing was said to drivers during the course of bargaining for the 2014 or 2017 Agreements which suggested an intention to change the language of the relevant provisions or the then practice of paying the broken shift rate and overtime rate cumulatively.

[97] The further submission by Torrens Transit that SouthLink’s previous custom and practice may be attributable to a voluntary ‘over-Agreement’ payment on the part of the employer is far-fetched. The evidence is that this was SouthLink’s consistent practice whenever the overlap of rostering arrangements arose in the fifteen years that preceded 1 July 2020. It is entirely implausible that these provisions would have been renegotiated on three occasions in formal collective bargaining with no reference being made by the employer to its practice being nothing more than an ex gratia and discretionary method of calculation.

[98] For these reasons, the evidence in this matter together with the textual and contextual considerations, leads me to conclude that the principle of a penalty not being paid upon a penalty is neither what this Agreement says nor what was commonly intended by reference to language or practice.

[99] For the sake of completeness, I observe that this decision is not a determination of what the Agreement should provide, or whether what it provides is fair and reasonable. The dispute did not concern those questions. Those are matters entirely for those who made (or inherited) the instrument and are covered by it.

[100] It is also worthy of note that whilst the Commission (not being a court) cannot determine the correct meaning of an instrument to finality or in a manner that provides a legally binding determination of rights and obligations, it has been necessary to express an opinion on that question in order to determine this dispute.

Conclusion

[101] The question posed for determination was as follows:

“In circumstances where employees to whom the 2017 Agreement covers and applies are rostered to perform duty on a broken shift that is outside a spread of ten consecutive hours and in excess of 7.6 hours of rostered duty on a weekday, is Torrens required to pay such employees the penalty applicable under clause 21.2.1 in relation to overtime in addition to the penalty applicable for broken shifts outside a spread of ten consecutive hours under clause 20.1.2(a)?”

[102] For the foregoing reasons, the answer to the question is “yes”.

[103] The dispute as notified is determined on the aforementioned basis.

DEPUTY PRESIDENT

Appearances:

P. Boncardo, with permission, with J Boughey for the Transport Workers’ Union of Australia
S. Wellard, with permission, for Torrens Transit Services Pty Ltd

Hearing details:

2021.
Adelaide; telephone.
9 February.

Printed by authority of the Commonwealth Government Printer

<AE423900  PR726811>

 1   Initially allocated to Hampton C, then re-allocated to Anderson DP

 2   Email Chambers – Anderson DP 21 January 2021

 3   Email Chambers - Anderson DP 1 February 2021

4 Statement of Mr Kilyen, as amended, was admitted by consent

 5   Written Submission of the TWU 19 January 2021; Written Submission of Torrens Transit 29 January 2021; Written Submission in Reply of the TWU 4 February 2021

 6   MB6 page 26

 7   R2

 8   [2017] FWCA 1885 Lee C

 9   Ibid [4]

 10   4 hours 44 minutes in the first period and then 2 hours 52 minutes in the second period between 2.05pm and 4.57pm

 11   JK6

 12   MB5 SouthLink Bus Drivers 2014 Enterprise Agreement (the 2014 Agreement)

 13   MB4 SouthLink Bus Drivers 2010 Enterprise Agreement (the 2010 Agreement)

 14   MB3 SouthLink Collective Agreement 2006 (the 2006 Agreement)

 15   MB2 SouthLink Outer North Enterprise Agreement 2005 (the 2005 Agreement)

 16   MB1 SouthLink Agreement 2000 (the 2000 Agreement)

 17   For example, clause 18 of the 2005 Agreement ‘Maximum of Shift and Overtime Rates’ is materially different to clause 18 of the 2006 Agreement, clause 20 of the 2010 Agreement, clause 22 of the 2014 Agreement and clause 22 of the 2017 Agreement

 18   Berri at [114]; AMIEU v Golden Cockerel Pty Ltd[2014] FWCFB 7447; Kucks v CSR Limited (1996) 66 IR 182; Short v Hercus (1993) 40 FCR 511; Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (No 3) [2020] FCA 1428

 19   Kucks v CSR Ltd 66 IR 182 at 184; see also Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at 270 per Kirby J

 20   James Cook University v Ridd [2020] FCAFC 123 at [65] (vii) citing City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and WorkPac v Skene (2018) 280 IR 191 at [197]; see also Australian rail Tram and Bus Industry Union v Qube Logistics (Rail) Pty Ltd [2020] FCA 1520 at 11

 21   Berri at [114] principles 10, 11 and 12; Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 at [35]

 22   James Cook University v Ridd [2020] FCAFC 123 at [65] (v) citing Short v FW Hercus Pty Ltd (1993) 46 IR 128 at 135

 23   Berri at [44]

 24   Amcor Limited v CFMEU (2005) 222 CLR 241 at 270 per Kirby J

 25   Berri at [114] principle 2

 26   A3 paragraph 16