Transport Workers' Union of Australia v Transit (NSW) Services Pty Ltd
[2022] FWC 2334
•2 SEPTEMBER 2022
| [2022] FWC 2334 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Transport Workers’ Union of Australia
v
Transit (NSW) Services Pty Ltd
(C2022/814)
| COMMISSIONER P RYAN | SYDNEY, 2 SEPTEMBER 2022 |
Dispute about a matter arising under the enterprise agreement – dispute determined
Introduction
This decision concerns an application by the Transport Workers’ Union of Australia (TWU/Applicant) pursuant to s.739 of the Fair Work Act 2009 (FW Act) in respect of a dispute with Transit (NSW) Services Pty Ltd (Transit/Respondent) (Application).
The Application was made in accordance with clause 31 of the Transit (NSW) Services Pty Ltd, Transport Workers Union and Bus Drivers Enterprise Agreement 2017 (Agreement) which came into operation from 29 May 2017[1] and has a nominal expiry date of 21 May 2021.[2]
Clause 31 of the Agreement contains a dispute resolution procedure and, following compliance with the steps set out in clauses 31(a)–(e), confers jurisdiction on the Commission to resolve disputes by conciliation, and if conciliation is not successful, by arbitration.
Clause 9(b) of the Agreement provides that an employee who drives a bus in service carrying fare paying passengers will be paid an allowance per day as set out in Schedule 1.
The issue in dispute is whether the allowance is payable in circumstances where the employees did not activate the ticketing machines and other fare collection devices as part of industrial action, meaning those passengers who travelled on buses at times the industrial action was taken, did not pay a fare.
The matter was unable to be resolved at conciliation and proceeded to arbitration. There is no dispute between the parties as to jurisdiction, and I am satisfied on the materials before the Commission that I have jurisdiction to arbitrate the dispute.
The parties agreed on the following question to be determined by arbitration:
Are employees entitled to the allowance under clause 9(b) of the Agreement in circumstances where they have engaged in industrial action, being a ban on the use of ticketing machines and other fare collection devices?
The matter was heard via Microsoft Teams on 1 April 2022.
I exercised my discretion to grant permission to the Respondent to be represented by a lawyer, as I was satisfied as to the matters set out in s.596 (2) (a) of the FW Act. The Applicant was represented by Ms A Owens-Strauss. The Respondent was represented by Ms S Wellard.
Witness statements were tendered from the following persons:
·Mr Gavin Webb, chief legal officer for the Applicant’s New South Wales Branch (Exhibit A1);
·Mr Nimrod Nyols, former lead official for the Applicant’s New South Wales Branch (Exhibit A2);
·Mr Michael Kent, general counsel for the Respondent (Exhibit R1);
·Mr Douglas Lamont, formerly employed by the Respondent (Exhibit R2);
·Mr Clinton Feuerherdt, the chief executive officer of the Kelsian Group. The Respondent is part of the Kelsian Group, (Exhibit R3).
Mr Nyols and Mr Lamont also gave evidence at the hearing.
Background to the Dispute
On 16 November 2021, the Applicant gave notice to the Respondent that its members intended to take industrial action on and from 22 November 2021, which included a ban on the use of ticketing machines or other fare collecting devices.
On 19 November 2021, the Respondent issued notices to the employees pursuant to s.471 of the FW Act that it intended to reduce the pay by a proportion specified in the notices.
The Respondent’s notices included the statement:
We will not pay you the allowance of $16.3689 specified in Clause 9(b) of the Transit (NSW) Services Pty Ltd, Transport Workers Union and Bus Drivers Enterprise Agreement 2017 as the ban on the use of ticketing machines and other fare collection devices results in you not carrying fare paying passengers.[3]
The Applicant then made an application to the Commission pursuant to s.472 of the FW Act, seeking an order varying the proportion by which the employee’s payments will be reduced.
On 9 December 2021, Deputy President Easton issued orders varying the proportions deducted by the Respondent. In the reasons for the decision, the Deputy President referred to the statement in the notices issued by the Respondent concerning the allowance in clause 9(b) and stated:
…the notices issued by [the Respondent] to its employees included a statement that employees would not receive a certain allowance on each day in which they applied the partial work ban. In the course of the hearing it was agreed by all parties that the payment or non-payment of the allowance was not a matter that engages s.471 of the FW Act and therefore not a matter about which the Commission can make any orders under s.472.[4]
On 10 December 2021, the Applicant gave notice to the Respondent that its members intended to take industrial action on and from 16 December 2021, which included a ban on the use of ticketing machines or other fare collecting devices.
On 15 December 2021, the Respondent issued further notices to the employees pursuant to s.471 of the FW Act that it intended to reduce the pay by a proportion specified in the notices. The notices also included the statement that employees will not receive payment for the clause 9(b) allowance.[5]
The Applicant contends the non-payment of the clause 9(b) allowance is not permitted by the Agreement. The Respondent contends that the ban on the use of ticketing machines or other fare collecting devices resulted in the drivers not carrying fare paying passengers and, it follows, there is no entitlement to the allowance.
The dispute therefore turns on the interpretation of clause 9(b) of the Agreement.
Relevant Provisions of the Enterprise Agreement
Clause 2 of the Agreement states:
2. Parties Bound by EA
The parties bound by this EA are:
(a) Transit (NSW) Services Pty Ltd in the State of NSW, (The Company or Employer).
(b) Persons employed by the Company who are partly, wholly or principally employed as Bus Drivers, and who perform bus driving work in New South Wales (Employees).
(c) The Transport Workers’ Union of Australian (the Union).
Clause 9 (a) of the Agreement states:
The wages and allowances of all Employees are set out in Schedule 1 and no other wages shall apply.
Clause 9 (b) of the Agreement states:
An Employee who drives a bus in service carrying fare paying passengers or where a person is employed as a driver and conducts yard duties for the Company, shall be paid an allowance per day as set out in Schedule 1.
Schedule 1 of the Agreement states:
ALLOWANCES
CLAUSE 9(B)
Drive a bus in service with fare paying passengers or conduct Yard Duties $15.0658 per day
Applicant’s Evidence
Mr Nimrod Nyols
Mr Nyols was formerly employed by the Applicant’s New South Wales Branch as a Lead Official.[6]
Mr Nyols stated that he led negotiations on behalf of the TWU for the Agreement[7] and that he was also involved in the negotiations for the previous enterprise agreement, the Transit (NSW) Services Pty Ltd and the Transport Worker’s Union of Australia Fair Work Agreement 2013 (2013 Agreement).[8]
Mr Nyols said that during bargaining for the Agreement which was particularly difficult and prolonged, he represented the TWU and Mr Lamont represented the Respondent.[9]
Mr Nyols stated that clause 7(b) of the 2013 Agreement included, a ‘Dual Capacity Allowance’ (DC Allowance), which was an amount paid daily to an employee called upon to check and validate boardings.[10]
Mr Nyols stated that it was his understanding that the DC Allowance originated from a former state award, where an amount each was paid to an employee who was called upon to issue tickets or collect fares.[11]
Mr Nyols stated that at the time of bargaining for the Agreement, there was a general understanding within the TWU membership that the Respondent was interpreting and applying clause 7(b) of the 2013 Agreement where drivers engaged in fare collection duties, irrespective of whether that interpterion was correct.[12]
Mr Nyols stated that one of the TWU’s claims during bargaining for the Agreement was to remove the wording “to check and validate boardings” and replace it with wording that indicated the allowance would be paid as a customer service or passenger allowance and that there were two particular considerations which influenced this claim. First, Mr Nyols stated that there was a growing fear amongst TWU members that the increase in contactless payments through opal card usage, rather than cash payments, may result in the Respondent ceasing to pay an allowance which was premised on checking and validating boardings. Second, the contracts between the Respondent’s related entities and the New South Wales Government contain key performance indictors relating to customer service and satisfaction.[13]
Mr Nyols stated that he explained the TWU’s claim and its rationale to the Respondent during bargaining, and as a result of those discussions, the Respondent agreed to continue to pay the allowance irrespective of drivers engaging in fare collecting duties[14], and that amendments to the wording should reflect an understanding that the allowance was being paid because the driver was expected to provide a particular level of customer service for passengers under the contracts with the New South Wales Government.[15]
Mr Nyols stated that he cannot recall who specifically drafted the wording in clause 9(b) of the Agreement, but recalls the purpose was to distinguish between bus services that were undertaken to a contract with the New South Wales Government and charter services.[16]
Mr Nyols stated he recalls that ‘towards the end’ of bargaining Mr Feuerherdt referred to the allowance being paid to acknowledge that drivers are servicing fare paying passengers, rather than receiving or handling payment.
Mr Gavin Webb
Mr Webb is the chief legal officer for the Applicant’s New South Wales Branch.[17]
Mr Webb stated as Mr Nyols was no longer an employee, he conducted a search of the email account that used by Mr Nyols during his employment during the period of 2015 to 2017 for any correspondence to or from Mr Lamont.[18]
Mr Webb stated the search located three documents below, each of which were annexed to his statement:
(i)an email from Mr Nyols to Mr Lamont and others dated 26 October attached to which was a document with file name “TWO – TSA log of claims 2015”;
(ii)an email dated 20 November 2015 from the Respondent to Mr Nyols and others, including Mr Lamont, attached to which was a document with the file “Transit NSW EA 2015 Meeting Minutes 17-11-2015”; and
(iii)an email dated 27 February 2107 from the Respondent to Mr Nyols and others, including Mr Lamont, attached to which was a document with the file “Transit NSW EA 2015 Meeting Minutes #19 25-01-2017”.[19]
Exhibit A3
The Applicant also tendered an email dated 30 October 2015 from Mr Nyols to Mr Toby Warnes (a colleague at the TWU). The email stated that Mr Nyols’ notes from a meeting earlier that day as well as a template agreement from previous negotiations were attached.
In relation to Mr Nyols’ notes, the document was a copy of the Applicant’s log of claims which had some handwritten markings and notations.
Respondent’s Evidence
Mr Doug Lamont
Mr Lamont was formerly employed by the Respondent in various roles.[20]
Mr Lamont stated that he led negotiations on behalf of the Respondent for the Agreement, in which the Respondent was seeking to move away from the TWU template agreement with the aim to achieve a rolled up ordinary rate incorporating most allowances and some penalties and wage increases to be in line with the Wage Cost Index.[21]
Mr Lamont stated that bargaining took place through a consultative committee which included management representatives, employee bargaining representatives, and the TWU. The consultative committee met on more than 20 occasions from mid-2015 to mid-2017.[22]
Mr Lamont stated that in the first or one of the early consultative committee meetings in 2015, there was industrywide concern that drivers will not be paid the DC Allowance following the completion of the rollout of opal card readers in all buses.[23]
Mr Lamont stated that if the Respondent could have stopped paying the DC Allowance it would have. However, despite the introduction of opal card readers, the driver still had to ensure it was operational and remained involved in the checking and validation of passenger boardings. Accordingly, the Respondent paid the DC Allowance regardless of the method used by a passenger to pay their fare.[24]
Mr Lamont stated that the TWU’s log of claims included a claim that the “issue and collect” allowance be replaced with a “passenger service” allowance, but no other detail was provided.[25]
Mr Lamont stated that he drafted clause 9(b) of the Agreement to allay the concerns of drivers that the Respondent might stop paying the DC Allowance when opal card readers were in use. Mr Lamont stated that clause 9(b) was drafted to apply when the bus was carrying ‘fare paying passengers’ regardless of whether the fare was paid to the driver, through the insertion of a ticket into a machine, by tapping an opal card reader, or by any other method that might be introduced. The allowance would simply be payable when fares were paid.[26]
Mr Lamont stated that clause 9(b) was extended to apply when a driver was performing yard duties. This was because the Respondent was constructing bus depots at Hoxton Park and Smithfield and drivers were needed in the yard or depot to move buses and the Respondent did not want any of those drivers to lose payment for the allowance when they assisted in keeping services running.[27]
Mr Lamont stated that when he presented a draft of the Agreement that included the wording in clause 9(b), he explained that by using the words ‘fare paying passengers’ the allowance would apply regardless of how a fare was paid including by opal card readers. Mr Lamont stated that his drafting of the clause was accepted by the consultative committee and that no amendment or further clarification was requested.[28]
Mr Lamont stated that the DC Allowance has never applied to charter buses and that the wording of clause 9(b) maintained that position, as drivers of charter buses are not required to operate opal card readers or otherwise have any involvement in fare collection.[29]
Mr Lamont denies that Mr Nyols requested that the wording of clause 9(b) should be changed or linked to customer service. Mr Lamont stated that customer service is an inherent part of the job of a public bus driver and also undertaken by a driver on a charter bus. Mr Lamont stated the DC Allowance originated when drivers carried a cash box and issued tickets and that it has been adapted over time to account for different payment methods.[30]
Mr Lamont agrees that the contracts with the New South Wales Government deal with issues such as complaints and customer satisfaction surveys but stated that those matters were not a new issue in bargaining for the Agreement and not something for which the clause 9(b) allowance is paid.[31]
Mr Michael Kent
Mr Kent is the general counsel for the Respondent.[32]
Mr Kent stated that:
· He was not consulted on, or involved in the drafting of the Agreement;[33]
· He did not attend any of the bargaining meetings;[34] and
· The drafting of the Agreement was undertaking by Mr Lamont.[35]
Mr Clinton Feuerherdt
Mr Feuerherdt is the chief executive officer of the Kelsian Group. The Respondent is part of the Kelsian Group.[36]
Mr Feuerherdt stated that:
· A related entity operates public bus services pursuant to a contract with the New South Wales Government. The Respondent supplies bus drivers and other workers to the related entity;[37]
· The bus services are not free to the public and that passengers must pay a fee set by the New South Wales Government. The revenue from the bus services is New South Wales Government revenue and it is a critical obligation to protect that revenue, which includes ensuring the opal card readers are turned on;[38]
· Mr Lamont led the negotiations on behalf of the Respondent for the Agreement;[39]
· He does not recall any discussions regarding the introduction of a customer service allowance or similar;[40]
· He recalls being advised by Mr Lamont that the bargaining committee were concerned that bus drivers would lose the dual capacity allowance with the transition from ticket machines to opal car readers and that he agreed with Mr Lamont that the allowance clause be updated to reflect the introduction of opal card readers and be extended to drivers undertaking yard duties.[41]
· The dual capacity allowance has never applied to charter bus services, as drivers on those buses do not have a role in revenue collection;[42] and
· He attended some bargaining meetings towards the ‘tail end’ of bargaining, during the meetings he attended there was no discussion regarding the dual capacity allowance or any change to it, and that he does recall not any discussion with Mr Nyols regarding the allowance.[43]
Summary of Applicant’s Submissions
Applicant’s Written Submissions
The Applicant submitted that the task of the Commission is to interpret the words “drives a bus in service carrying fare paying passengers”.[44]
The Applicant submitted that the clause 9(b) allowance does not apply to duties performed by drivers in order to allow fares to be collected but, rather, applies to work performed by drivers associated with the boarding and deboarding of passengers regardless of whether passengers pay or are charged a fare.[45]
The Applicant submitted that the principles to be applied concerning the proper construction of the Agreement are well established and were set out by a Full Bench of the Commission in “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Berry Pty Ltd[46] (Berri).
The Applicant further submitted with reference to applicable authorities that regard must be had to the context and purpose of a provision or expression, and that in determining whether ambiguity exists, one may have regard to the evidence of the surrounding circumstances.[47]
The Applicant submitted that it is well accepted that the interpretation of a provision of an enterprise agreement begins with the ordinary meaning of the words used having regard to the context and purpose.[48]
The Applicant submitted that clause 9(b) of Agreement is clear and unambiguous and that the ordinary meaning of ‘carrying fare paying passengers’ requires the bus to be driven “in service” for the purposes of moving or transporting individuals accessing a bus service which is provided to the fare paying public. The Applicant submits that a bus in service refers to a bus being available for use by passengers rather than a bus ‘not in service’ that is not available for use by passengers.[49]
In relation to the words, fare paying passengers, passengers and fare paying, the Applicant submitted:
19. “Fare paying passengers” refers to persons belonging to a group of persons who share a characteristic or feature - the group being passengers and the characteristic being that they are fare-paying.
20. “Passengers” simply means, in the context of the respondent’s operations, individuals accessing a bus service provided by the respondent. Under the EA, this could mean a regular bus service, provided to the general public for a fare according to regular routes and timetables, or a charter bus service, hired by individuals (or their agents) for a specific trip or route for a fee.
21. “Fare paying” is a general characteristic used in these circumstances to differentiate between individuals accessing these different types of bus services. It is not incumbent on the individual having actually paid to access a particular bus service. This is because employees driving charter buses, properly, do not receive the allowance despite the fact that individuals pay a fee to access such a service. The only difference between a regular bus service and a charter bus service in this regard is in the method and timing of the payment being either upon boarding the bus and through the ticketing machines (a regular bus service) or prior to boarding the bus and directly to the operator or through an agent (a charter bus service). For “fare paying” to have been intended to refer to the method and timing of the payment would require writing words into the clause that are simply not there, which is impermissible. It would also ignore the conceivable notion that passengers may refuse to pay a fare upon boarding the bus and that there is no obligation on a bus driver to enforce payment of a fare. This circumstance would render the entitlement to the allowance entirely dependent on the bus driver ensuring passengers have paid a fare upon boarding (an obligation they do not have).
22. Rather, “fare paying” appropriately describes passengers accessing a regular bus service, being a service provided to the general public for a fare according to regular routes and timetables. In other words, it describes individuals accessing a bus service which is provided to the fare-paying public (whether or not such individuals have actually paid to access that service).
(emphasis added)
The Applicant submitted that to interpret “carrying fare paying passengers” so narrowly as requiring the bus to be physically carrying fare paying passengers, rather than for the purpose of carrying fare paying passengers would result in employees not being entitled to the allowance in circumstances where the bus remains empty because there were no passengers on that particular service.[50]
Therefore, the Applicant submitted, the meaning of “drives a bus in service carrying fare paying passengers” in the context of the Agreement can be summarised as entitling employees to an allowance where they drive a bus in operation and available for use and driven for the purposes of providing a regular bus service to the fare-paying public.[51]
In support of its submission that clause 9(b) is clear and unambiguous the Applicant referred to:
(i)previous wording in clause 7(b) of the 2013 Agreement and that it is clear there was a change to the wording during bargaining for the Agreement;
(ii)Mr Nyols’ evidence as to the surrounding circumstances known to the parties at the time of bargaining for the agreement.[52]
The Applicant submitted that Mr Nyols’ evidence establishes
·The clause was amended to move away from fare collection and acknowledge the obligations on bus drivers to provide a level of customer service;
·The TWU claim was an industry wide claim;
·The TWU communicated the claim to the Respondent during bargaining and it was agreed;
·The words “drives a bus in service carrying fare paying passengers” was understood to by the TWU, its members and the Respondent to be a reflection of the intention of clause 9(b) being paid where a driver is required to provide a level of customer service as required by the Contract; and
·Those surrounding circumstances establish that there is no ambiguity to the meaning of clause 9(b).[53]
The Applicant submitted in the alternative, that if the Commission finds there is ambiguity, the evidence of Mr Nyols establishes the common understanding of the parties as to the meaning of the clause.[54]
Applicant’s Written Submissions in Reply
In reply, the Applicant submitted:
· That the Respondent’s submissions do not differentiate between regular services and charters;[55]
· That Mr Webb’s evidence establishes the purpose of the amendments was to remove the allowance being associated with issuing and collecting fares, to establish a new allowance associated with providing customer service, and that the parties agreed to that;[56] and
· That the Respondent’s evidence of the surrounding circumstances cannot be accepted.[57]
Applicant’s Oral Submissions
The Applicant’s primary submission is that there is no ambiguity in clause 9(b) of the Agreement and that is informed by Mr Nyols’ evidence. In the alternative, the Applicant submitted that if the Commission finds there is ambiguity, Mr Nyol’s evidence also resolves the ambiguity.
The Applicant made submissions about the evidence of the surrounding circumstances and whose evidence should be preferred. In this respect, the Applicant submitted that the consultative meeting minutes drafted by the Respondent, support the Applicant’s position.
The Applicant submitted that the Respondent’s position that it amended a clause in the Agreement so that it would continue to mean the same thing is unconvincing.
Summary of Respondent’s Submissions
The Respondent submitted that the fare allowance clause is not ambiguous, is not susceptible to more than one meaning, and should be construed having regard to its natural ordinary meeting.[58]
The Respondent submitted that the words mean what they say:
Fare – is the price for a trip;
Paying – means making the payment;
Passenger – a person travelling on the bus;
and that a bus can only be carrying fare paying passengers if the passengers have paid a fare.[59]
The Respondent submitted that it is not in dispute that the drivers did not turn the opal card readers on when engaging in industrial action and therefore, any passengers carried on a bus when a driver was taking part in the ban did not pay a fare. Therefore, the drivers were not entitled to be paid the ‘Fare Allowance’.[60]
The Respondent agrees with the submission of the Applicant that the principles set out in Berri are relevant to the proper construction of an enterprise agreement. The Respondent emphasised that if an agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement (Principle 9), and that only if the language is ambiguous or susceptible of more than one meaning, that evidence of this training circumstances will be admissible to aid the interpretation of the agreement (Principle 10).[61]
The Respondent submitted that clause 9(b) has a clear and unambiguous meaning and evidence of the surrounding circumstances need not be considered.[62]
The Respondent submits that if the Commission does take into account evidence of the surrounding circumstances, its evidence should be preferred, as it supports the context and purpose of the clause and establishes:
· Mr Lamont drafted the clause;
· Mr Nyols or the Applicant did not seek to change the drafting;
· The clause was modernised to reflect the change in payment methods as a result of concern from drivers that they would lose the existing ticketing allowance;
· The clause was drafted so the status quo is maintained; and
· Customer service is part of the job of a bus driver.[63]
The Respondent submitted that the Applicant’s submissions concerning an empty bus or all passengers refusing to pay their fee scenarios when the allowance would not be paid are absurd.[64]
The Respondent submitted that on a proper application, clause 9(b) is not payable to a driver when a bus is in service and not carrying fare paying passengers.[65]
Respondent’s Oral Submissions
The Respondent submitted there is no need to look to the extrinsic evidence or materials as both parties agree that there is no ambiguity in clause 9(b).
The Respondent submitted that the words in Schedule 1 are also relevant.
The Respondent submitted that the Applicant’s submission that a passenger does not actually have to pay a fare to be a fare paying passenger contorts the words in clause 9(b).
The Respondent made submissions about the evidence of the surrounding circumstances and whose evidence should be preferred. In this respect, the Respondent submitted that the common understanding was to preserve the allowance for drivers.
The Respondent submitted that Mr Feuerherdt’s evidence should be accepted as he wasn’t required for cross examination.
Principles of construction of enterprise agreements
The dispute before the Commission concerns the proper construction of clauses in the Enterprise Agreement.
The principles relevant to the approach that the Commission should take to the construction of enterprise agreements was set out in the decision of a Full Bench of the Commission in Berri as follows:
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.
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.
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.
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.
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.
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.
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.
Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10.If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
11.The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform 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.
More recently, in Workpac Pty Ltd v Skene[66], the Full Court of the Federal Court in Skene succinctly restated the principles as follows:
“The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation “…turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”. The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.”
[references omitted]
I have applied these principles in determining this dispute.
Consideration
As stated above, the dispute turns on the interpretation of clause 9(b) of the Agreement, and in particular, the meaning of the words “an Employee who drives a bus in service carrying fare paying passengers”.
The dispute does not concern the other qualifying limb for the allowance in clause 9(b), that is where a driver conducts yard duties, and therefore I do not need to consider the meaning of those words.
Although the Agreement contains a definitions clause, it does not contain a definition of any of the relevant words in clause 9(b).
Therefore, the starting point is to consider the ordinary meaning of the words in the context of which they appear, and whether the Agreement has a plain meaning or if it is ambiguous or susceptible of more than one meaning.
In my view, in considering the plain and ordinary meaning of the relevant words in clause 9(b) and the context in which they appear, there is no ambiguity for the following reasons.
First, the clause requires that an employee is driving a bus “in service”. In my opinion, that refers to a bus being driven according to a particular route and timetable, and is distinct from driving a charter bus or driving a bus not in service, for example moving the bus to another location. In coming to this view, I note there is no dispute between the parties that the clause 9(b) allowance does not apply to driving a charter bus. Furthermore, the Agreement contains clauses which differentiate between entitlements or conditions applying to employees when a bus is being driven as a bus in service[67] and when a bus is being driven as a charter.[68]
Second, I agree with the Respondent’s submission as to the plain and ordinary meaning of “fare paying passengers”. The Respondent submitted the ordinary meanings of the words are: fare: is the price for a trip; paying: means making the payment; and passenger: a person travelling on the bus.[69]
In my view the words are not encumbered by any doubt or uncertainty, nor are they susceptible to more than one meaning. Furthermore, the Respondent’s submission as to the plain and ordinary meaning is consistent with the ordinary dictionary meaning of the words[70]:
Fare means “the price of conveyance or passage”;
Paying means “to give money as in discharge of debt or obligation; to give money etc due to pay for goods”;Passenger means “someone who travels by some form of conveyance”.
I do not accept the Applicant’s submission that the words “fare paying passengers” do not actually mean that a passenger is required to have actually paid a fare to travel on a bus in service. The effect of that submission is to incorporate into the Agreement a meaning of “fare paying” which is clearly inconsistent with its plain and ordinary meaning. Furthermore, that submission raises the question as to the purpose of the words “carrying fare paying passengers”. The Applicant’s contention that the allowance in clause 9(b) is payable upon an employee driving a bus in service, irrespective of whether the passengers have paid a fare or not, means those words would have no work to do and serve no purpose.
Accordingly, there can be no doubt that ‘fare paying passengers’ refers to passengers who have paid a fare.
I am also of the view that the interpretation I have arrived at will apply in circumstances where an employee drives a bus in service for the purpose of carrying fare paying passengers. Therefore, if in the remote circumstances there were no passengers on a particular day or the passengers refused to pay the fare or tap on the opal card reader, that would not mean the driver was not entitled to the allowance. However, if a bus in service was operated in a way that there could not be any fare paying passengers, whether that was because of industrial action taken by the employees, a ‘free travel day’ instigated by the Respondent or the New South Wales Government, or for any other reason, the employees would not be entitled to the allowance.
Third, I do not consider that the interpretation I have arrived at is narrow or pedantic. The effect of a bus in service being driven with passengers not required to pay a fare is akin to an employee driving a charter bus insofar as passenger embarking, disembarking and interaction is concerned. As stated above, the parties agree that clause 9(b) does not apply where a bus is being driven for charter.
For these reasons, the words “an employee who drives a bus in service carrying fare paying passengers” in clause 9(b) of the Agreement are not ambiguous, uncertain or capable of more than one meaning. It is therefore impermissible to call in aid of interpretation, evidence of the ‘surrounding circumstances’.
Conclusion
In conclusion, the answer to the agreed question for arbitration is:
Are employees entitled to the allowance under clause 9(b) of the Agreement in circumstances where they have engaged in industrial action, being a ban on the use of ticketing machines and other fare collection devices?
No.
COMMISSIONER
Appearances:
Ms A Owens-Strauss for the Applicant.
Ms S Wellard, solicitor for the Respondent.
Hearing details:
2022.
Sydney (via Microsoft Teams video-link):
1 April.
[1] [2017] FWCA 2774 at [5].
[2] Ibid; Clause 3 of the Agreement.
[3] Application, Annexures C and D.
[4] Transport Workers’ Union of Australia v Transit (NSW) Services T/A Transit Systems[2021] FWC 6561 at [83].
[5] Application, Annexure E.
[6] Exhibit A2 at [2].
[7] Exhibit A2 at [2] and [7].
[8] Exhibit A2 at [8].
[9] Exhibit A2 at [14]-[15].
[10] Exhibit A2 at [17].
[11] Exhibit A2 at [18].
[12] Exhibit A2 at [19].
[13] Exhibit A2 at [20]-[23].
[14] Exhibit A2 at [24]-[25].
[15] Exhibit A2 at [27].
[16] Exhibit A2 at [28]-[29].
[17] Exhibit A1 at [1].
[18] Exhibit A1 at [6].
[19] Exhibit A1 at [7], Annexures GW1, GW2 and GW3.
[20] Exhibit R2 at [1].
[21] Exhibit R2 at [4]-[6].
[22] Exhibit R2 at [7]-[8].
[23] Exhibit R2 at [9]-[11].
[24] Exhibit R2 at [12]-[14].
[25] Exhibit R2 at [9].
[26] Exhibit R2 at [17] and [21].
[27] Exhibit R2 at [15]-[16] and [18].
[28] Exhibit R2 at [21]-[22].
[29] Exhibit R2 at [19] and [33].
[30] Exhibit R2 at [24]-[28].
[31] Exhibit R2 at [29]-[32].
[32] Exhibit R1 at [1].
[33] Exhibit R1 at [3].
[34] Exhibit R1 at [4].
[35] Exhibit R1 at [5].
[36] Exhibit R3 at [1].
[37] Exhibit R3 at [2].
[38] Exhibit R3 at [3]-[4].
[39] Exhibit R3 at [5].
[40] Exhibit R3 at [7].
[41] Exhibit R3 at [8]-[9].
[42] Exhibit R3 at [10].
[43] Exhibit R3 at [12]-[16].
[44] Applicant’s Written Submissions at [13].
[45] Applicant’s Written Submissions at [6].
[46] [2017] FWCFB 3005 at [114].
[47] Applicant’s Written Submissions at [8]-[12].
[48] Applicant’s Written Submissions at [15].
[49] Applicant’s Written Submissions at [16]-[17].
[50] Applicant’s Written Submissions at [18].
[51] Applicant’s Written Submissions at [23].
[52] Applicant’s Written Submissions at [24].
[53] Applicant’s Written Submissions at [25]-[26].
[54] Applicant’s Written Submissions at [27].
[55] Applications Written Submissions in Reply at [2]-[3].
[56] Applications Written Submissions in Reply at [6b].
[57] Applications Written Submissions in Reply at [5]-[6].
[58] Respondent’s Written Submissions at [3].
[59] Respondent’s Written Submissions at [4]-[5].
[60] Respondent’s Written Submissions at [6]-[10].
[61] Respondent’s Written Submissions at [11]-[13].
[62] Respondent’s Written Submissions at [14].
[63] Respondent’s Written Submissions at [15].
[64] Respondent’s Written Submissions at [16].
[65] Respondent’s Written Submissions at [18].
[66] [2018] FCAFC 131 at [97].
[67] See clause 9(b) of the Agreement.
[68] See clause 13 of the Agreement.
[69] Respondent’s Written Submissions at [4].
[70] Macquarie Dictionary.
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