Transport Workers' Union of Australia v Transpacific Industries Pty Ltd

[2014] FWC 339

[2014] FWC 339

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Transport Workers’ Union of Australia
v
Transpacific Industries Pty Ltd
(C2013/4000)

COMMISSIONER ROBERTS SYDNEY, 20 JANUARY 2014

Application pursuant to s.739 - hours of work and shift work - whether shift allowance varied in error - whether clause ambiguous or uncertain.

[1] This decision concerns an application made by the Transport Workers’ Union of Australia (TWU or the Union) made on 8 April 2013, pursuant to s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with a dispute between it and Transpacific Industries Pty Ltd (Transpacific or the Company). The dispute was referred to the Commission pursuant to clause 11 (Disputes Resolution Procedure) of the Transpacific Industries Padstow Enterprise Agreement 2011 (the Agreement). That clause sets out a number of steps to be followed when a dispute arises as to matters covered by the Agreement. Where a dispute is not resolved between the parties, either party may refer the matter to Fair Work Australia (now the Fair Work Commission) to firstly deal with the dispute by mediation, conciliation, the expression of an opinion or the making of a recommendation and if such efforts are not successful then to arbitrate the dispute and make a determination that is binding on the parties to the Agreement. Those parties are the TWU and Transpacific.

[2] Unsuccessful conciliation was conducted by her Honour Senior Deputy President Drake during May and June 2013. It was then referred to me to decide the dispute by arbitration.

[3] The Commission’s file in this matter contains a copy of form F1, which form was apparently put before Senior Deputy President Drake by the Company during the conciliation phase. The form was never officially lodged. The form F1 seeks to vary the Agreement to remove an alleged ambiguity or uncertainty by deleting the word ‘commence’ from clause 26.1(b) of the Agreement and replacing it with the word ‘finish’. The form sets out the following grounds:

“1. The Company seeks to vary clause 26.1(b) of the Agreement to remove ambiguity or uncertainty with regard to the interpretation of clause 26.1(b) and clause 23.2 - Hours of Work.

2. Currently, clause 26.1(b) of the Agreement contradicts clause 23.2 of the Agreement and therefore makes these clauses susceptible to more than one meaning.

3. The variation sort for clause 26.1(b) of the Agreement is to confirm when the night shift loading is payable to employees working night shift.

4. The intention of clause 26.1(b) of the Agreement is that it is to apply to employees who finish (not commence) work between 12am and 8am.

5. It is not the intention that employees working within the ordinary span of hours (1am to 5pm) in accordance with clause 23.2 are to receive a night shift loading.

6. The night shift definition in the previous Agreement (Cleanaway Padstow Collective Agreement 2009) was, ‘”Night Shift” shall refer to the rostered ordinary hours of an employee where the shift finishes after 12.00am and at or before 8.00am inclusive on any day Monday to Sunday.’

7. The ordinary span of hours in the previous (Cleanaway Padstow Collective Agreement 2009) was 1.00am to 5.00pm, the same as the Agreement.

8. Evidence of the negotiations (refer to attached minutes) for the Agreement clearly reflects that the Company did not agree to employee’s claim of an early morning shift allowance. It is clear that the intention of the parties at the time was that a shift loading would not be paid to employees that undertake early morning work which falls within the ordinary span of hours (1am to 5pm). Instead employees’ base rates are loaded to compensate them for all hours worked during the span of hours (1am to 5pm).

9. The surrounding circumstances of points 6-8 above are relevant in the interpretation of clauses 23.2 and 26.1(b) of the Agreement and on this basis the Company asserts that ambiguity or uncertainty exists and that the Agreement should be varied in order to remove such ambiguity or uncertainty.”

[4] Although the above ‘application’ is not formally before me, the context of the dispute over the application of the Agreement will necessarily involve an examination of the mutual intentions, if any, of the parties in the negotiations which led to the making of the current Agreement. I will return to this matter later in my decision.

[5] Directions were issued on 9 August 2013 for the filing and service of outlines of submissions, witness statements and other materials. Those directions were complied with and the matter proceeded to hearing in Sydney on 13 September 2013. At the hearing before me, the TWU was represented by Mr T Warnes with Ms J Cindric. Transpacific was represented by Ms Z Noble. Sworn evidence for the TWU was given by Ms Cindric, Mr R King and Mr G Cairns. Sworn evidence for Transpacific was given by Ms S McKell, Mr A Taylor and Mr M Lequesne.

What is the dispute about?

[6] In its form F10 (Application for FWA to Deal with a Dispute in Accordance with a Dispute Settlement Procedure), the TWU characterises the dispute between the parties in the following terms:

“At the Padstow yard, several employees’ shifts commence at 1am and 3am. This has been the case since around September 2012 when Transpacific changed the employee’s shifts. These are the regular shifts for these employees and are performed on a weekly basis. In or around September 2012, when Transpacific made these changes, Mr Robin King and Mr Gregory Cairns (TWU Delegates) contended to management that this new shift structure would attract a 30% loading as per the Agreement. Mr Josh Richter (Business Unit Manager) denied this claim. In around December 2012, Ms Jelena Cindric (TWU Official) contacted Transpacific about this issue, as the TWU Delegates on site had not yet received a response. Mr Richter referred Ms Cindric to Ms Zara Noble (Employee Relations Advisor). To this date, no resolution has been reached. ... Transpacific contends that clause 23 of the Agreement nullifies its obligation to pay employees who commence work between 12am and 8am a 30% shift loading. It contends that these employees are in fact “day workers” as the hours that they work are ordinary hours. The TWU’s position is that employees whose shifts commence after 12am and at or before 8am are entitled to a night shift allowance of 30% as per clause 26.3(b) of the Agreement. The TWU contends that the fact that the hours worked fall within ordinary hours does not exclude the operation of clause 26. In fact the Agreement clearly contemplates that the shiftwork can fall within the ordinary hours defined in clause 23. The definition of “Night Shift” in clause 26.1(b) and also the also the provision for overtime in clause 26.5 demonstrate this.”

The relevant Agreement provisions

[7] Clause 23 (Hours of work) of the Agreement provides:

“23. HOURS OF WORK

23.1 The ordinary hours of work for full-time employees shall be an average of 38 hours per week to be worked within a work cycle not exceeding 28 consecutive days.

23.2 Subject to the exemption hereinafter contained the ordinary hours of work shall be worked on any day Monday to Friday between the hours of 1.00 a.m. and 5.00 p.m.

23.3 To enable maximum operational flexibility, the starting time for any day may be varied without penalty, by giving employees notice before the employee leaves the depot the previous day.

23.4 For public holidays only, the spread of hours (i.e. 1.00 a.m. to 5.00 p.m.) may be altered by up to one hour at either end of the spread, by agreement between the Employer and the majority of employees concerned or in appropriate circumstances, between the Employer and an individual employee.

23.5 Where the Company desires to vary or change the regular starting time of an employee he/she shall give one week’s notice of such variation or change to the employee concerned and post a notice of the intended change at the depot or yard.”

[8] Clause 26 (Shiftwork) relevantly provides:

“26.1 Definitions

...

(b) Night Shift means a shift where ordinary hours of an employee where such hours commence after 12.00 a.m. and at or before 8.00 a.m.

...

(e) Shiftwork means work extending for at least five consecutive days and performed either in daily recurrent periods or in regular rotating periods falling within the limits defined for afternoon shift or night shift.

...

26.3 Shift loadings

...

(b) For working on night shift an employee must be paid a loading of 30% of the relevant minimum wage.

...

26.5 Shiftwork-overtime

An employee engaged on shiftwork must be paid at overtime rates as provided for in clause 25-overtime instead of the shift loading in clause 26.3 if:

...

(c) the shiftwork is performed outside ordinary hours or in excess of eight hours per shift.”

Evidence

Ms Cindric

[9] Ms Cindric gave sworn evidence and submitted a witness statement 1. It was her statement that she has been a TWU official since September 2011 and had the role of finalising negotiations for the Agreement. In those negotiations she dealt with Ms Noble (Human Resources Manager), Ms S McKell (Site Manager) and Mr A Taylor (Area Manager).

[10] Ms Cindric went on to say that on 23 December 2011 she attended a negotiating meeting where she stated to company representatives that clause 26.1 of the Agreement confers an entitlement to a 30% shift loading on many of the drivers.

[11] In her supporting oral evidence, Ms Cindric clarified her witness statement in relation to the meeting held on 23 December 2011 by saying that it was not a negotiating meeting but an enterprise agreement meeting subsequent to prior negotiations. 2

[12] In cross-examination, Ms Cindric maintained that she raised the issue of a shift loading at the 23 December 2011 meeting. 3

Mr King

[13] Mr King gave sworn evidence and submitted a witness statement 4. It was Mr King’s statement that he has been the TWU delegate at the Padstow site since 2008 and has worked there since August 2004. He is a driver of garbage trucks.

[14] Mr King went on to say that he was involved in the negotiations for the Agreement and also involved in formulating a log of claims to commence enterprise bargaining.

[15] “An issue that arose in the creation of the log of claims was an early start allowance for those employees that began work on the 3am and 5am shifts. The reason that this issue arose was due to drivers at Padstow communicating with drivers from Wollongong who were receiving an early start allowance. I do not recall what the drivers at Wollongong received, but I believe it was less than 30%.

[16] “During the negotiations, a 30% shift allowance for early starters was discussed and Transpacific consistently rejected the claim saying that it was too expensive for their business. Despite this, we continued to push for an allowance to be included because we felt that we should be compensated for the unsociable hours we worked and the toll that it took on our lives. The hours I worked were having an impact on my family and I believed it was time for compensation for this. The other drivers at Padstow concurred with me.”

[17] “In December 2011, [Ms Cindric] (TWU Official) held a yard meeting to discuss the proposed enterprise agreement with the drivers. During this meeting, [Ms Cindric] pointed out that clause 26 of the Agreement as it was worded conferred on us a night shift allowance. She also pointed several inconsistencies within the Agreement. She told the drivers that she would bring these up with Transpacific.”

[18] Mr King went on to corroborate Ms Cindric’s evidence in relation to the meeting of 23 December 2011.

[19] “Sometime after this meeting, the agreement was distributed for a vote with the same wording in clause 26 as [Ms Cindric] had pointed out to Transpacific in the meeting. I recall that [Ms Cindric] informed me that we should be voting ‘Yes’ for the Agreement, and I called around the drivers in the yard and told them they should be voting to approve the Agreement.

[20] “In around August 2012, the Padstow site got a new manager named [Mr Richter]. When [Mr Richter] became manager, he decided to implement a 1am shift for us. This brought attention to the fact that we were not being paid a shift allowance for starting early in the morning. After that, I called [Ms Cindric] and asked her what we could do about the situation. This was when we remembered that clause 26 of the Agreement entitled us to a night shift allowance.”

[21] “I believe that a 30% night shift allowance would compensate for the impact that such an early start time has on my life.”

[22] In cross-examination, Mr King:

● Was asked: “Were you paid any shift loading for starting at 3.00 and 5.00 ever?” and said: “No, we haven’t.” 5
● Was asked: “Did you ever receive any notice verbally or written that you were required to work shift work when you started at 3.00 and 5.00?” and said: “No.” 6
● Agreed that Transpacific did not agree to the claim for a 30% shift allowance during negotiations leading up to the making of the Agreement. 7
● Recalled that Transpacific had said that a 30% loading would have a large financial impact on the Company.
● Did not recall whether a shift loading was mentioned at the meeting of 23 December 2011. 8

Mr Cairns

[23] Mr Cairns gave sworn evidence and submitted a witness statement 9. It was Mr Cairns’ statement that since December 2011 he has been the TWU co-delegate at the Padstow site where he is employed as a liquid waste driver. He has worked at Padstow since May 2008.

[24] Mr Cairns went on to say that he participated in the bargaining for the Agreement and the TWU’s log of claims included a claim for an early start allowance. “This was intended to capture employees who began early in the morning, at that time, the 3am and 5am starters.” It was included in the log of claims as drivers at the Wollongong yard received an allowance for starting work in the early hours of the morning.

[25] “In or around December 2011, [Ms Cindric] held a yard meeting with all of the drivers at Padstow. At this meeting we discussed the draft enterprise agreement that Transpacific had produced for all employees to inspect. [Ms Cindric] pointed out to the meeting that clause 26 that dealt with night shift allowance read as to confer an entitlement of 30% loading for those who began in the early morning.”

[26] “Some time after that, [Ms Cindric] reported back to [Mr King] (TWU Delegate) and I that she had consulted with Transpacific about the clause and they said that they would look at it and come back to her.”

[27] “When the Agreement was put to the vote, [Ms Cindric] informed us that the night shift allowance clause had not changed from the draft that we had inspected earlier. She told us that even thought she pointed it out to Transpacific they had not changed the wording of the draft. With this in mind [Ms Cindric] advised us to vote ‘yes’ for the agreement.”

[28] Mr Cairns went on to say that around the end of 2012, a new manager changed the start times for all of the drivers at Padstow. “The new start time was 1am. After that Transpacific changed the start time back to 3am and 5am for several drivers. This change drew attention to the fact that we were not being compensated for starting so early in the morning.”

[29] In cross-examination, Mr Cairns agreed that a 3 am start was within his ordinary span of hours. 10 Mr Cairns went on to say that he attended only one negotiation meeting and recalled a discussion concerning an early start allowance.11

[30] Mr Cairns went on to say that he recalled Ms Cindric telling TWU members before the Agreement was made that they were entitled to a night shift allowance. 12

Ms McKell

[31] Ms McKell gave sworn evidence and submitted a witness statement 13. It was Ms McKell’s statement that she worked for Transpacific at Padstow from July 2010 to May 2012, lastly as the Business Unit Manager. She now works for SITA Australia.

[32] At Padstow, she was responsible for managing the day to day operations of the site and attended all negotiation meetings leading up to the making of the Agreement. She went on to say that the Company’s constant intention during negotiations was to maintain the ordinary spread of hours of 1 am to 5 pm worked on any day Monday to Friday. During the negotiations for the Agreement, the TWU put forward a claim for an early start allowance for employees who commenced before 5 am. This claim was repeatedly rejected by the Company.

[33] On 23 December 2011, she met with employees to explain the terms of the Agreement and the voting process. “There were no discussions regarding the alleged 30% shift loading entitlement in this meeting or on the day of 23rd December 2011. There was certainly not a negotiations meeting held on 23rd December 2011 as the negotiations had concluded a week or so prior.”

[34] “At Transpacific, it is normal process that any negotiations meetings are held in the presence of a member of Transpacific’s Employment Relations (ER) team so as to provide management with advice and guidance. [Ms Noble] from ER was working on the Agreement with management. I did not have a need to contact [Ms Noble] at any time in relation to the alleged entitlement to a 30% night shift loading for employees working between the ordinary span of hours because the issue was never raised with me. I learned of the claim that employees were seeking a 30% night shift loading that were working between the ordinary spread of hours after May 2012 when I transferred to another job within Transpacific.”

[35] Ms McKell further said that she did not recall talking with Ms Cindric in January 2012 or having any discussions with her or employees “regarding the alleged entitlement to a 30% night shift loading or for any other matter relating to the Agreement …” She went on to say that she did not recall seeing Ms Cindric at Padstow at any time after the Agreement was voted on.

[36] In cross-examination, Ms McKell agreed that the ordinary spread of hours had changed between the 2009 and 2011 Agreements. 14 She further agreed that the change to a 1 am start time in the 2011 Agreement was not part of negotiations and was not brought up by either the Company or the employees.15

[37] Ms McKell went on to say that the TWU raised a claim for a 30% shift allowance in its log of claims and that such allowance would apply to drivers who start at 3 am to 5 am. The TWU persisted with the claim throughout the negotiations. 16

[38] In relation to the meeting of 23 December 2011, Ms McKell said that the clauses in the Agreement were explained to the employees, who raised no concerns about the Agreement. 17 Ms Cindric did not raise any issue with the wording of clause 26.1(b).18 Ms McKell went on to say that she did not recall speaking to Ms Cindric on 6 January 2012 as there would be no reason for them to be in contact “regarding clauses in the Agreement that was already voted on”.19

Mr Talyor

[39] Mr Taylor gave sworn evidence and submitted a witness statement 20. It was Mr Taylor’s statement that he is Transpacific’s Area Manager for the Technical Services Business in Queensland, NSW, Victoria and South Australia and has worked for Transpacific for some six years. During the period October 2010 to June 2012 he worked at Padstow as NSW Regional Manager. In that role, he took part in negotiations for the Agreement.

[40] Mr Taylor went on to say: “During the negotiations it was always the Company’s intention to maintain the ordinary spread of hours of 1am to 5pm worked on any day Monday to Friday. I represented this position on behalf of the company during the negotiations. The ordinary spread of hours clause for the previous enterprise agreement was also from 1am to 5pm worked on any day Monday to Friday. This covered the primary hours of work required in the undertaking of the grease trap collections. As part of the TWU’s log of claims for the Agreement, which were outlined in the meeting on 14th June 2011, a claim was made for a 30% early start allowance to replace the transport allowance.” The Company did not agree to any allowance for an early start on the basis that the current span of hours already compensates employees.

[41] “The final agreement was endorsed by a valid majority of employees based on these early start conditions not being agreed to by the Company and that the span of ordinary hours remaining (as it had with the previous Agreement) between 1am and 5pm. On this basis, I have never asked an employee to commence work between the ordinary hours of 1am and 5pm with the expectation that this would be shift work or would attract a shift loading.”

[42] In cross-examination, Mr Taylor agreed that there was no mention in negotiations that ordinary hours would change from those contained in the 2009 Agreement. 21 Mr Taylor went on to say that he believed that the hourly rate in the Agreement compensates employees for early morning starts.22 He went on to agree that a higher hourly rate is paid to employees regardless of what hours they work.23

Mr LeQuesne

[43] Mr LeQuesne gave sworn evidence and submitted a witness statement 24. It was Mr LeQuesne’s statement that he has been employed by Transpacific for some 19 years and has worked at Padstow since October 1994. His current position is Plant Operations Scheduler and he is responsible for the scheduling of the operators at Padstow. Mr LeQuesne is employed pursuant to the Agreement and was an employee bargaining representative during agreement negotiations, attending approximately three of the five negotiation meetings.

[44] “I recall from the negotiations that employees working between the ordinary span of hours of 1am to 5pm were requesting an early morning shift allowance for starting early in the morning as part of their log of claims. I do not recall there being a claim for a night shift loading to be paid to employees that start work early in the morning as part of the negotiations or at any time before we voted on the Agreement on 29 December 2011. Throughout the negotiations, Transpacific never agreed to pay an additional shift loading to the day shift employees working within the ordinary span of hours of 1am to 5pm. In fact, Transpacific consistently rejected the claim for an early start allowance.”

[45] Mr LeQuesne went on to say that he has commenced work around 3 am for some 14 years and has never been paid an additional shift loading under the Agreement or its predecessor.

[46] “I do not recall anything about employees that work between the ordinary span of hours receiving a 30% night shift loading before the vote on 29 December 2011. I heard about the TWU pursuing the 30% night shift loading for employees that work between 1am and 5pm shortly after the 1am shift was introduced in August 2012.”

[47] Mr LeQuesne went on to say that when he voted on the Agreement, he believed “that employees including myself who commence work in the early morning and work within the ordinary span of hours would not receive a 30% night shift loading.”

[48] In cross-examination, Mr LeQuesne agreed that his knowledge of agreement negotiations was limited to those meetings which he attended. 25 He went on to reiterate his statement evidence that when he voted for the Agreement he did not believe that he would receive a 30% night shift loading if he worked during the normal span of hours.26

Written submissions

The TWU

[49] In accordance with Directions, the TWU filed a written outline of submissions prior to the hearing 27. The submissions argued that the Agreement “is clear and unambiguous in its treatment of the entitlement to a night shift loading”. An employee who commences work between the hours of 12 midnight and 8 am is entitled to a 30% loading in addition to their ordinary hours.

[50] “The primary submission of the TWU is that the entitlement to a night shift loading is clear and unambiguous. The clause as it currently reads does not offend any other clause in the Agreement. The terms in the relevant clauses should be given their ordinary meaning.”

[51] “The TWU submits that the Commission has to be satisfied that a high threshold has been met in terms of evidence to establish that something different is meant by the express terms in the Agreement for it to rule that the words mean something entirely different.”

[52] The TWU went on to argue that the predecessor agreement (the Transpacific Cleanaway Padstow Collective Agreement 2009 (the 2009 Agreement)) was used as a working template during negotiations for the current Agreement.

[53] “Despite the use of the 2009 Agreement as a template, there seems to be an absolute change in the way that shifts are defined in the Agreement as opposed to the 2009 Agreement. Not only has the definition of night shift changed to ‘commence’, but so has the afternoon shift definition. How this could occur without an intentional change to the wording is a mystery.”

[54] “Even if the word ‘finish’ was changed to ‘commence’ by mistake, Transpacific cannot hide behind the guise of mistake as it was aware that this wording existed and the ramifications of the wording prior to putting the Agreement to the vote. Even if it was not aware of the wording, it ought to have been and it is its responsibility to be aware.”

[55] “It is clear from the evidence that Transpacific was aware of the wording in clause 26.1(b) prior to the Agreement being put to the vote. Ms Cindric advised Ms McKell in a meeting on 23 December 2011 that clause 26.1(b) in operation with the other relevant clauses created an entitlement to a 30% night shift allowance for the affected employees.”

[56] “The Agreement is abundantly clear on its terms. If a driver commences work between the hours of 12am and 8am, they are entitled to be paid an additional 30% loading. The alleged mistake by Transpacific holds no weight as they were on notice that the wording of clause 26.1(b) conferred the above entitlement.”

Transpacific

[57] In accordance with Directions, Transpacific filed a written outline of submissions prior to the hearing 28. Those submissions argued that the word ‘commence’ in clause 26.1(b) should be replaced with the word ‘finish’, as that clause was drafted in error.

[58] “Transpacific used its base agreement template to draft the Agreement which is based on the Waste Management Award 2010. This base agreement template is consistent with several other TWU agreements that Transpacific currently has in operation across Australia. Clause 28.1(b) (Night Shift) of the Waste Management Award 2010 states: ‘Night shift means a shift where the ordinary hours worked finish after 12.30 am and at or before 8.30 am.”

[59] Transpacific denied using the 2009 Agreement as a base for drafting the current Agreement. It argued that if it had done so, the alleged error would not have occurred. “Further, it can also be demonstrated that this was a genuine error that occurred by the fact that Transpacific changed the ours of the night shift clause (‘after 12.30am and at or before 8.30am’) from the base agreement template to be consistent with the night shift clause of the previous Agreement but failed to change the word ‘commence’ to ‘finish’ as per the previous Agreement.”

[60] The submissions went on to say that the intention of clause 26.1(b) of the Agreement was that it should apply to employees who are employed as night shift workers and who finish work between 12 am and 8 am, it is not the intention that employees working within their ordinary span of hours would receive a night shift loading. The Company did not agree to a claim for an additional loading or early morning shift allowance as sought in the TWU’s log of claims. “Employees and the TWU certainly did not request a night shift loading as part of their log of claims or at any time throughout the negotiations for the Agreement.”

[61] The Company said that the meeting which Ms Cindric attended on 23 December 2011 occurred some two days after the Agreement was put to all employees for their consideration. The meeting itself involved Ms Cindric and employees only. The first occasion on which the TWU alleged that employees were entitled to a night shift loading was on 19 December 2012 when Ms Cindric contacted Ms Noble after a 1 am shift was introduced at Padstow. “To that end, Transpacific finds it difficult to understand why this dispute was raised some 12 months following the approval of the Agreement if the TWU maintain that there was an alleged entitlement that was raised in December 2011.”

[62] Transpacific went on to argue that the word ‘commence’ in clause 26.1(b) of the Agreement is both erroneous and susceptible to more than one meaning when read in conjunction with clause 23.2. Accordingly, evidence of surrounding circumstances is admissible to assist in the interpretation of the Agreement.

[63] “Transpacific held a toolbox meeting on 23 December 2011 to explain the terms of the Agreement and the effect of those terms to the employees. In this toolbox meeting, a 30% shift loading for employees starting in the morning was not raised by Transpacific or the employees. If it were Transpacific’s intention to agree to pay employees an additional 30% loading for commencing work within the ordinary span of hours, this would have been highlighted in the toolbox meeting as a new entitlement.”

[64] The Company seeks to vary clause 26.1(b) in the manner earlier described and further seeks the dismissal of the TWU’s s.739 application. The Company also foreshadows an application for costs.

[65] Attached to the Company’s submissions are copies of two draft agreements produced during the period of negotiations for the current Agreement. Those draft agreements bear the dates of 29 March 2011 and 20 December 2011 respectively. In both documents, the word ‘commence’ is used in relation to night shift work after 12 am and before 8 am.

[66] Also attached to the Company’s written submissions are Meeting Minutes relating to enterprise agreement negotiations. The Company asserts that those Minutes support its contention that there was never any agreement to amend clause 26.1(b) to provide a night shift allowance to employees commencing after 12 am and before 8 am. The Company further asserts that the Minutes show its consistent refusal to countenance an early morning shift allowance.

Final oral submissions

The TWU

[67] The TWU conceded that the change from the word ‘finish’ to ‘commence’ in clause 26.1(b) of the Agreement did not arise from any claim made by the Union. However, the Union consistently claimed an early start allowance of 30% throughout negotiations. Mr Warnes went on to say: “we don’t contend that during the negotiations the TWU and the Transpacific negotiators sat down and said, ‘Here’s a 30 per cent shift and you’re going to pay it,’ and Transpacific said, ‘Yes.’ We don’t contend that happened. That’s not clear on the evidence..” 29

[68] Mr Warnes went on to argue that: “so without some deliberate change to ‘commence’, we don’t understand how it changed …” 30 He went on to say that Ms Cindric alerted Ms McKell to the import of clause 26.1(b) on two occasions prior to the approval of the Agreement by the Commission: “Now, Transpacific had two opportunities to amend the clause. On both occasions they didn’t do so. The TWU submits that this is either down to a deliberate leaving of the words as they were or to some degree of incompetence. Now, Transpacific has an experienced HR department and management who are experienced in the making of enterprise agreements. To have left the clause as it is despite prior notice of the fact that the clause was the way it is, we say, demonstrates, if not a express intention, an in implied intention to leave the clause as it read, as it currently stands in the agreement. We say Transpacific have agreed to the wording in the clause as is by way of their conduct in leaving the clause as it currently is, despite notice being given by the TWU. In that respect, the respondent has waived its right to complain about the agreement containing some kind of mistake.”31

[69] Mr Warnes went on to draw my attention to the Full Bench decision in CJ Manfield Pty Ltd v CEPU 32 (Manfield) where, at paragraph 53, the Bench said: “An employer who wishes to propose an agreement to its employees has a responsibility to ensure that the agreement reflects its intentions. If it proposes an agreement which contains a mistake of one type or another then we think it must take responsibility for that situation. We do not believe that the employer can subsequently say that the document it distributed to employees and requested its employees to approve is not something it agreed to. By its very actions it was.

[70] Mr Warnes continued by saying that the Agreement which was ‘voted up’ by employees on or about 29 December 2011 followed an earlier rejection of a proposed agreement. Both documents voted on by employees contain the word ‘commence’ in clause 26.1(b). In that context Mr Warnes referred me again to Manfield, where at paragraph 54, the Bench said: “The error was made well before the vote for the agreement. Indeed the relevant clause was contained in three previous versions of the agreement submitted to the workforce for approval and rejected. On the fourth occasion it formed part of a proposed agreement a majority of the employees voted to accept the agreement put to it.”

[71] Mr Warnes went on to argue that even if I found that Ms Cindric did not alert Ms McKell, the principle set out in Manfield would still apply. “The clause as it is written is, in a technical sense, enforceable as it is unless a variation is made by the commission.” 33

Transpacific

[72] In her oral submissions, Ms Noble said: “I’m not going to dress this up any more than it needs to be. This issue is no more than a drafting issue. I’m not going to make it more complicated than that.” 34

[73] Ms Noble went on to say that the evidence of Mr Cairns and Mr King did not specifically say that the issue of the night shift allowance was raised with the Company on 23 December 2011. In addition, Ms McKell’s evidence was that she did not have any discussions with Ms Cindric during January 2012.

[74] Ms Noble went on to say that the change in wording from ‘finish’ to ‘commence’ was a genuine error and she conceded that the incorrect wording was put before employees on several occasions. Ms Noble went on to argue that the error gives rise to an ambiguity which can be cured by the Commission amending the clause to reflect the true intention of the parties.

Conclusions and determination

[75] The argument from the TWU in this matter essentially boils down to the proposition that although the current wording of clause 26.1(b) does not arise out of any claim by the TWU or concession by the Company, the meaning of the clause is clear on its face and the Company must comply with its provisions. The Company’s position is that the wording results from a drafting error and that therefore it should not be bound by it. In this respect, I respectfully agree with the reasoning of the Full Bench in Manfield.

[76] The wording of clause 26.1(b) in my view clearly arose from an error on the Company’s part. The clause itself does not give rise to any ambiguity or uncertainty. The identification of an ambiguity or uncertainty requires the determination of a jurisdictional fact. 35 Section 217 of the Act is not designed to cure errors, even bizarre errors such as the one before me. As an application pursuant to s.217 is not formally before me, I will limit my comments on the ambiguity/uncertainty issue to those made above. If I am wrong in my attitude to the proper lodgement of the Company’s s.217 application, and it was properly filed by way of transmission to Senior Deputy President Drake’s Chambers, then I would dismiss it on its merits.

[77] In the s.739 application before me, there is, as noted above, no conflict between the parties that an error crept into clause 26.1(b) and remained there during a long negotiating period and was eventually enshrined in the Agreement and approved by the Commission. There was certainly no common intent between the parties.

[78] I am extremely sceptical of the evidence of Ms Cindric as to her allegedly alerting the Company on two occasions of the import of the change in wording from ‘finish’ to ‘commence’. Ms Cindric would have me believe that the granting of a 30% pay rise to a majority of drivers at Padstow was known to her, and she told the Company, on 23 December 2011, before the Agreement was voted on but took no action to claim the loading until almost 12 months later. I prefer the evidence of Ms McKell, Mr Taylor and Mr LeQuesne where it conflicts with that of Ms Cindric, Mr King and Mr Cairns. It is my belief, on the balance of probabilities, that the error in the wording of clause 26.1(b) did not come to light until late in 2012. Why the Company did not then take urgent action to deal with this problem mystifies me.

[79] In short, clause 26.1(b) says what it says and what it says is pellucidly clear. I therefore determine that the terms of clause 26.1(b) bestow an entitlement on employees who commence their shifts after 12 midnight and before 8 am, of a shift allowance of 30%.

[80] I wish to clearly state that I believe that the TWU’s approach in this matter has been entirely opportunistic in the context of the factual matrix of the clause being re-worded in error. Any argument that the existence of the change from ‘finish’ to ‘commence’ shows an implicit acceptance of the change by Transpacific is patently false. However, the onus for this situation occurring lies firmly on Transpacific.

COMMISSIONER

Appearances:

T Warnes with J Cindric for the Transport Workers’ Union of Australia.

Z Noble for Transpacific Industries Pty Ltd.

Hearing details:

2013.

Sydney:

September 13.

 1   Exhibit TWU 2.

 2   Transcript PN12.

 3   Transcript PN34.

 4   Exhibit TWU 3.

 5   Transcript PN77.

 6   Transcript PN78.

 7   Transcript PN89.

 8   Transcript PN100.

 9   Exhibit TWU 4.

 10   Transcript PNs141-142.

 11   Transcript PNs152-153.

 12   Transcript PNs163-164.

 13   Exhibit Transpacific 2.

 14   Transcript PN236.

 15   Transcript PNs237-239.

 16   Transcript PNs242-245.

 17   Transcript PNs246-257.

 18   Transcript PN258 and following.

 19   Transcript PN280.

 20   Exhibit Transpacific 3.

 21   Transcript PN334.

 22   Transcript PN361.

 23   Transcript PN362.

 24   Exhibit Transpacific 4.

 25   Transcript PN436.

 26   Transcript PNs444-445.

 27   Exhibit TWU 1.

 28   Exhibit Transpacific 1.

 29   Transcript PN498.

 30   Transcript PN512.

 31   Transcript PN515.

 32   [2012] FWAFB 3534.

 33   Transcript PN564.

 34   Transcript PN635.

 35   See Re Tennix Defence Pty Limited, PR917548.

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