United Firefighters' Union of Australia v Airservices (UFU v ASA)
[2016] FCCA 2450
•22 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| UNITED FIREFIGHTERS' UNION OF AUSTRALIA v AIRSERVICES AUSTRALIA | [2016] FCCA 2450 |
| Catchwords: INDUSTRIAL LAW – Alleged contravention of ss.50 and 323 of the Fair Work Act 2009 arising from breaches of clauses of an Enterprise Agreement – principles applicable to the construction of industrial instruments – application dismissed. |
| Legislation: Fair Work Act 2009, ss.50, 51, 271, 323, 324, 539, 540, 546 Workplace Relations Act 1996 (Cth), s.178 |
| Cases cited: AFMEPKIU v Qantas Airways Limited (2001) 106 IR 307 CFMEU v Lend Lease Project Management and Construction (Aust) Pty Ltd [2012] FMCA 1094 |
| Applicant: | UNITED FIREFIGHTERS' UNION OF AUSTRALIA |
| Respondent: | AIRSERVICES AUSTRALIA |
| File Number: | MLG 1434 of 2015 |
| Judgment of: | Judge Jones |
| Hearing date: | 29 July 2016 |
| Date of Last Submission: | 29 July 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 22 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Langmead |
| Solicitors for the Applicant: | Davies Lawyers |
| Counsel for the Respondent: | Mr O'Grady QC |
| Solicitors for the Respondent: | Ashurst Australia |
ORDERS
The application filed on 25 June 2015 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1434 of 2015
| UNITED FIREFIGHTERS' UNION OF AUSTRALIA |
Applicant
And
| AIRSERVICES AUSTRALIA |
Respondent
REASONS FOR JUDGMENT
Introduction and Background
The United Firefighters’ Union of Australia (“the Applicant”) claims contraventions of ss.50 and 323 of the Fair Work Act 2009 (“the Act”) by Airservices Australia (“the Respondent”), because of breaches of certain clauses of the Airservices Australia (Aviation Rescue and Fire Fighting) Enterprise Agreement 2013-2017 (“the Agreement”), resulting in alleged underpayments to five named employees of the Respondent.
Section 50 of the Act provides that, a person must not contravene a term of an enterprise agreement. The application of s.50 of the Act is affected by s.51(1) of the Act, which provides that an enterprise agreement does not impose obligations on a person, and a person does not contravene a term of an enterprise agreement, unless the agreement applies to the person. There is no doubt that the Agreement applied to the Respondent. Section 323 of the Act provides, amongst other things, that amounts payable to an employee, in relation to the performance of their work, must be paid in full, subject to s.324 of the Act, which prescribes circumstances in which amounts may be deducted.
The Applicant seeks Orders that the Respondent pay pecuniary penalties under s.546 of the Act for the alleged contraventions of ss. 50 and 323 of the Act, and that the pecuniary penalties be paid to the Applicant. By s.539(1) of the Act, ss. 50 and 323 of the Act are “civil remedy provisions”. The Applicant has, by sub-ss. 539(2) and 540(2) of the Act, the requisite standing to institute an application for the imposition of a penalty for a contravention. The Applicant also seeks Orders that the Respondent pay any underpayments (with interest) arising from the alleged contraventions to each of the five employees. The Respondent denies it breached any clause of the Agreement.
The Agreement covers the Respondent and employees, who are engaged by the Respondent to provide airport fire-fighting services and who are engaged in classifications ranging from Recruit, Trainee Fire Fighter Levels 1 and 2, Leading Fire Fighter, Sub Station Officer, Station Officer and Fire Commander: Attachment 1 to the Agreement: cl.1.4.1 of the Agreement.
The clauses of the Agreement, which the Applicant alleges the Respondent has breached and the employees whom the Applicant alleges have been underpaid as a consequence of said breaches are as follows.
Clause 4.7 – Rest Relief provides that:
4.7.1 If you are required to work additional hours or emergency duty and there is less than eight (8) hours break to your next regular shift commencement time, you will not be required to attend for ordinary duty until you have been absent for eight (8) hours (plus reasonable travelling time). Your pay will not be reduced for the period of such absence.
4.7.2 If you are required to work without eight (8) consecutive hours off duty (plus reasonable travelling time), you will be paid at the additional hours rate (refer Clause 4.4) for all hours worked until the required break is taken.
4.7.3 The rest relief provisions do not apply where the period of emergency duty is less than three (3) hours, or less than three (3) hours additional hours is worked immediately prior to the commencement of a normal shift.
The Applicant alleges that Mr John Ring (“Ring”), and Mr Lance Lopdell (“Lopdell”), who worked additional hours immediately prior to their rostered shift without an eight hour break, were entitled to be paid the additional hours rate specified in cl.4.4 of the Agreement, and in accordance with sub-cl.4.7.2 of the Agreement for the additional hours worked immediately prior to their rostered shift and for all hours worked on their rostered shift. The Respondent submits that the employees were entitled to be paid for the additional hours worked immediately prior to the commencement of their rostered shift.
Clause 4.4 - Additional Hours and Emergency Duty relevantly provides:
4.4.1 You have an obligation to work a reasonable amount of additional hours (including emergency duty) where it is necessary to meet operational requirements. Additional hours may be necessary to cover approved leave and absences where insufficient relief is available. This obligation is subject to the provisions in the remainder of this clause 4.4.
…
4.4.6 All additional hours and emergency duty will be paid at the rate of 1.5 for all additional hours or emergency duty hours worked.
There is no dispute that Mr Lloyd Skeet (“Skeet”) and Mr Neil Pooley (“Pooley”), who were Fly In Fly Out (FIFO) employees working at remote airports, attended the Learning Academy for training during a period which would normally be an off duty period. The Applicant alleges Skeet and Pooley were entitled to be paid for all additional hours worked during the time they spent at the training course (the 7.6 hours the employees attended each day from Monday to Friday, as well as travelling time). The Respondent submits that Skeet and Pooley were entitled to be paid the additional hourly rate for all hours worked over a four-week period (including attendance at training and travelling time), which exceeded 152 hours: see cl.4.8.3(f) of the Agreement below.
Clause 4.12.1 – Higher Duties provides relevantly:
a) You are eligible for the payment of higher duties allowance when you temporarily perform duties at a higher classification for a cumulative period greater than forty (40) hours.
b) When performing higher duties, you will be paid at the substantive salary of the higher classification.
c) When you temporarily perform the duties of a classification for which the conditions of service differ from the conditions of service of your usual classification, you will be subject to the conditions of the classification pertaining to the higher duties.
…
Mr Andrew Stenhouse (“Stenhouse”), whose substantive classification was Fire Commander, was temporarily appointed to the position of Fire Station Manager and performed duties associated with that position.
The Applicant alleges that Stenhouse should have been paid in accordance with cl.4.12.1(b) of the Agreement; that is, at all times he performed the duties of the Fire Station Manager he should have been paid at the substantive salary of the Fire Station Manager. The Respondent submits cl.4.12.1 has no application to circumstances where an employee performs higher duties in a classification which does not fall within the scope of the Agreement. In such circumstances, the performance of higher duties is covered by a common-law agreement, as was the case with Stenhouse when he temporarily performed the duties of a Fire Station Manager.
Construction of Industrial Instruments – Principles
Save for one issue, which I will deal with shortly, the parties are agreed on the relevant applicable principles to the construction of industrial instruments, such as this Agreement. The Applicant agreed with the Respondent’s submissions, which were as follows at [6] to [7] of the Respondent’s Outline of Submissions filed on 22 July 2016:
6. In the recent decision of Polan v Goulburn Valley Health [2016] FCA 440 Mortimer J endorsed the following summary of the applicable principles of construction in relation to industrial instruments by Tracey J in Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829; 318 ALR 54 at [29]- [41] where His Honour said:
29. As is often the case with industrial awards and agreements which have been drafted by non-lawyers, the drafting of the instruments presently under consideration lack the precision and clarity which one would expect to find in a commercial contract. As a result it has been necessary for courts to develop principles to guide the construction of such instruments when, as happens all too often, their meaning and application are in dispute.
30. In dealing with the construction of awards in Kucks v CSR Limited (1996) 66 IR 182 at 184 Madgwick J observed that:
“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.”
31. This passage was quoted with approval by two members of the High Court in Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at 271 (Kirby J), 282-3 (Callinan J). Shortly afterwards these principles were restated by French J in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 at 440 [57]:
“It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities – City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 378–379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned – see eg George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):
Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.”
32. In Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208 at 212 Northrop J expressly agreed with what had been said by Madgwick J in Kucks and held that Madgwick J’s observations had even stronger application to certified agreements than they did to awards.
33. In my view, these principles have application to the construction of the instruments which are presently in dispute.
34. Guidance as to the construction of industrial instruments may also be obtained by reference to principles which courts apply to the construction of commercial contracts. Commercial contracts should, as Kirby J held in Pan Foods Company Importers & Distributors Pty Ltd v Australia and New Zealand Banking Group Ltd [2000] HCA 20; (2000) 170 ALR 579 at 584 “be construed practically, so as to give effect to their presumed commercial purposes and so as not to defeat the achievement of such purposes by an excessively narrow and artificially restricted construction.” An interpretation which accords with business common sense will be preferred to one which does not: see Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8; (1968) 118 CLR 429 at 437.
35. In determining whether a commercial document imposes contractual obligations regard is had to the intention of the parties: would a reasonable person conclude that the person making the alleged binding promise intend to be contractually bound by that promise. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 179 the High Court summarised the position as follows:
“It is not the subjective beliefs or understanding of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe ... That, normally requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.”
36. A further aid to construction was referred to in submissions. It related to the possibility that the parties had, historically, adopted a common understanding as to the meaning and effect of disputed provisions in the relevant instruments.
37. Decisions of the Court accept that, in some circumstances, resort may be had to the manner in which a particular industrial instrument or provision in it, has evolved. Differences, however, have emerged as to matters such as whether such an approach is permissible only in order to resolve ambiguity and as to how willing the Court should be to enter this field.
38. In Short v FW Hercus Pty Ltd [1993] FCA 51; (1993) 40 FCR 511 Burchett J (with whom Drummond J agreed on this point) affirmed that any provision appearing in an industrial instrument had to be read “in its context”. He cited the example of “an expression [that] was first created by a particularly respected draftsman for the purpose of stating the substance of a suggested term of an award, [which] was then adopted in a number of subsequent clauses of awards dealing with the same general subject, and finally was adopted as a clause dealing with that same general subject in the award ...”. In construing such a provision, his Honour said, “the circumstances of the origin and use of the clause are plainly relevant to an understanding of what is likely to have been intended by its use.” (at 517). In supporting this proposition his Honour referred to the dictum of Isaacs J in Australian Agricultural Company Limited v Federated Engine-driver’s and Firemen’s Association of Australasia [1913] HCA 41; (1913) 17 CLR 261 at 272 in which Isaacs J cited Lord Halsbury LC as saying: “The time when, and the circumstances under which, an instrument is made, supply the best and surest mode of expounding it.” His Honour concluded (at 518) that:
“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, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history, and to prefer to peer unaided at some obscurity in the language. ‘Sometimes’, McHugh J said in Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1 at 21, the purpose of legislation ‘can be discerned only by reference to the history of the legislation and the state of the law when it was enacted.’ Awards must be in the same position.”
39. Gray J addressed the issue in Australian Liquor, Hospitality and Miscellaneous Workers’ Union v Prestige Property Services Pty Ltd [2006] FCA 11; (2006) 149 FCR 209, and Shop Distributive and Allied Employees’ Association v Woolworths Limited [2006] FCA 616; (2006) 151 FCR 513.
40. In ALHMWU his Honour was concerned to determine whether the Victorian Arts Centre Trust was an “instrumentality” within the meaning of two awards. The respondent had argued that it was not. His Honour said (at 222) that:
“For present purposes, I am prepared to accept that the construction of an award can be affected by a common understanding of the parties to it about a particular state of affairs. If such a common understanding existed when the award was made, it should not be departed from when the Court comes to construe the award at a subsequent time. Care must be taken, however, to distinguish a common understanding from common inadvertence. If the only reason why the government instrumentality rates were not paid at the Centre was that neither the union nor the employer adverted to the possibility that there was an obligation to pay them, no common understanding results. In order to have an understanding, it is necessary that there be a meeting of minds, a consensus. There can be no meeting of mind, no consensus, if no-one has thought about the issue.”
41. His Honour expressed similar caution in the SDAEA case. He there said (at 520) that:
“Counsel for the applicant contended that the past conduct of the parties could be relied upon as an aid in the construction of the Certified Agreement. There is authority that, if a provision has appeared in a series of agreements between the same parties, and if they can be shown to have conducted themselves according to a common understanding of the meaning of that provision, then it can be taken that they have agreed that the term should continue to have the commonly understood meaning in the current agreement. See Merchant Service Guild of Australia v Sydney Steam Collier Owners and Coal Stevedores Assn (1958) 1 FLR 248 at 251 per Spicer CJ, 254 per Dunphy J and 257 per Morgan J, and Printing and Kindred Industries Union v Davies Bros Ltd (1986) 18 IR 444 at 452-453. It is necessary to take great care in the application of this limited principle, to avoid infringing the general principle that the conduct of parties to an agreement cannot be taken into account in construing the agreement. For the limited principle to operate, there must be clear evidence that the parties have acted upon a common understanding as to the meaning of the relevant provision and not for other reasons, such as common inadvertence to its true meaning.” (emphasis added)
7. Mortimer J then continued:
32. Like other instruments creating normative rules, such as statutes and regulations, industrial instruments are to be construed in accordance with their language (or text), taking into account their context in the wider scheme or structure of the instrument, and the purpose of the provisions, again as seen in the wider scheme or structure of the instrument: see generally Lacey v Attorney-General (Qld) [2011] HCA 10; 242 CLR 573; Certain Lloyd’s Underwriters v Cross [2012] HCA 56; 293 ALR 412 at [24]–[25]. In the latter case, French CJ and Hayne J said at [25]:
Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials.
33. Having made that statement, their Honours then reaffirmed that, ultimately, the purpose of a statute “resides in its text and structure”. Subsequent decisions have confirmed this emphasis, while making it clear that extrinsic materials may also be consulted: see Lee v NSW Crime Commission [2013] HCA 39; 251 CLR 196 at [45]; Akiba v Commonwealth [2013] HCA 33; 250 CLR 209 at [31]; Independent Commission Against Corruption (NSW) v Cunneen [2015] HCA 14; 89 ALJR 475 at [57].
34. In relation to industrial instruments, considerations of context include the wider industrial circumstances in which a particular agreement has been negotiated and concluded, taking particular account of the “practical frame of mind” that might often be brought to its drafting and of the “industrial realities” in which such instruments are drafted: see Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Madgwick J); City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 at [57] (French J). Examination of the history of industrial instruments is as justified as examination of legislative history: see Short v FW Hercus Pty Ltd [1993] FCA 72; 40 FCR 511 at 518 (Burchett J). It is critical that construction of industrial instruments should contribute to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the industrial instrument: Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 at [96] (Kirby J), and – to similar effect – at [2] (Gleeson CJ and McHugh J). Although it has been held that ss 15AA and 46 of the Acts Interpretation Act 1901 (Cth) do not impose obligations to construe the instrument in a way which would best achieve the objective of the instrument (those provisions having been held to be inapplicable to enterprise agreements: Toyota Motor Corp Australia Ltd v Marmara [2014] FCAFC 84; 222 FCR 152 at [68]), it is nevertheless clear from the authorities to which I have referred that a purposive approach to the construction of the terms of an industrial instrument is required just as much as it is required in construing a statute.” (emphasis added)
The Applicant disputes the Respondent’s submission that “in applications for a penalty for breach of an Enterprise Agreement, the Applicants bear the burden of establishing the correctness of the construction for which they contend. Where the Court does not come to a definite view as to the meaning of the clause in issue the proceeding should be dismissed: AFMEPKIU v Qantas Airways Limited (2001) 106 IR 307 at [65] - [71] per North J.”[1]
[1] Respondent’s Outline of Submissions filed on 22 July 2016 at [8](b).
In AFMEPKIU v Qantas Airways Limited (2001) 106 IR 307 (“AFMEPKIU”), the Applicant sought Orders for the imposition of penalties under s.178 of the then Workplace Relations Act 1996 (Cth) on Qantas, because of alleged breaches of two Enterprise Agreements. Both parties agreed that the clauses in question were ambiguous and evidence was adduced regarding the background circumstances in which the agreements were reached. Justice North found that each of the clauses relied on by the Applicant were ambiguous and that there were cogent arguments in favour of the construction of the clauses proposed by both parties at [65]. His Honour said that the Applicant bore the onus of showing that the construction for which they contend is correct at [66]. In circumstances where, having considered the analysis and evidence provided by both parties, the Court was, on the balance of probabilities, not satisfied as to the construction of the clauses urged by the Applicant, then the application should be dismissed.
Counsel for the Applicant submitted that the view of Justice North in AFMEPKIU was not correct and relied on the judgment of White J in National Tertiary Education Union v La Trobe University [2015] FCAFC 142 (“La Trobe University”). In this decision a majority of the Full Court (Bromberg and White JJ, with Jessup J dissenting) upheld an appeal against a decision of the primary judge, regarding the construction of a clause of an Enterprise Agreement. Each member of the Full Court gave separate judgments. In the course of his Honours judgement, White J said as follows:
103. It is appropriate to commence by reference to the University’s submission with respect to onus. The University submitted that the appellant had borne the onus at first instance of establishing that its construction of cl 74 was correct and, accordingly, that the issue raised on the appeal was whether it had discharged that onus.
104. In my opinion, it is inappropriate to approach the determination of the appeal on that basis. As the primary Judge recognised, the question before him was one of construction, that is, the determination of the proper meaning and effect of cl 74. Questions of that kind do not involve an onus in the sense of the moving party having to discharge an evidentiary or persuasive burden. That is because there is but one correct construction of cl 74. That construction does not vary according to which of the parties to the litigation is the moving party. To hold that the moving party has an onus is to suppose that there is an available meaning for the moving party to displace. That is an erroneous view.
105. The respondent sought to support its submission on the question of onus by reference to AFMEPKIU v Qantas Airways Limited [2001] FCA 547; (2001) 106 IR 307 at [65]‑[68]. In that case, North J held that a disputed clause in an enterprise bargaining agreement was ambiguous and capable of multiple interpretations. Each party had adduced evidence of background facts which they had submitted demonstrated the proper construction of the clause for which they contended. It was in that context that North J held that the AFMEPKIU had not established on the balance of probabilities that the parties intended the agreement to operate in the manner for which it contended. Likewise, North J held that the construction advanced by Qantas was not established by its evidence of the background facts.
106. When parties seek to place before the Court evidence as to background circumstances bearing upon the proper construction of a clause in an enterprise bargaining agreement, it is natural to speak of them having a burden of proof to establish those facts and a persuasive burden of showing that those facts support the construction for which they contend. However, the AFMEPKIU case is not, on my understanding, authority for the proposition that, in a case like the present in which the Court is construing a document in accordance with its own terms, the moving party has an onus of establishing the correctness of the construction for which it contends.
107. Accordingly, I do not regard the question for this Court as being that of whether the appellant has discharged an onus.
Neither Jessup J, nor Bromberg J considered the question of onus in their judgments.
In CFMEU v Lend Lease Project Management and Construction (Aust) Pty Ltd [2012] FMCA 1094, a decision issued before the Full Court decision in La Trobe University, Federal Magistrate Jarrett (as his Honour then was) accepted the Respondent’s submission that (at [14]):
…ultimately the Applicant bears the onus of establishing that the construction for which it contends is correct. If it does not establish on the balance of probabilities as a matter of fact that the parties to the agreement intended the relevant clause to operate in the way contended for by the Applicant, the application must be dismissed: (AFMEPKIU).
This Court is of course bound by decisions of a superior Court. It may be said that there are two directly conflicting views expressed by single judges of the Federal Court of Australia. Having considered the matter, I am of the view that this apparent conflict can be resolved in the following way.
The circumstances before Justice North in AFMEPKIU were unusual. Both parties agreed the clauses in question were ambiguous. In these circumstances, evidence was adduced regarding background matters surrounding the making of the agreements. Notwithstanding this, his Honour formed the view that the clauses remained ambiguous and that the arguments in favour of the constructions proffered by both parties were cogent. It was in this context that his Honour dealt with the question of onus. By contrast, no question of ambiguity arose in La Trobe University, nor was evidence adduced as to the background circumstances surrounding the making of the agreement. All judges (even though they differed on the proper construction) construed the relevant clause in accordance with ordinary principles.
In the absence of an authoritative decision regarding the question of onus in the construction of industrial instruments by a Full Court, I am satisfied that in the usual case, where provisions of industrial instruments are not so ambiguous, that they are susceptible to multiple interpretations, and the Court can satisfy itself as to the proper construction of the provisions, the question of onus does not arise. This is so, because, as observed by Justice White, the Court will arrive at a construction of the relevant provisions of an industrial instrument, which is a correct construction and this will not be dependent on which party to the litigation is the moving party. It is only in confined circumstances, such as those which confronted Justice North, where it could be said the moving party bears the onus of satisfying the Court as to the proper construction of the provision in question. This is because, where there are competing, but cogent arguments, which cannot be readily resolved one way or the other, even with recourse to admissible extrinsic evidence, the onus must fall on the party, which seeks the imposition of a penalty for contravention of an industrial agreement, to satisfy a Court that their construction is the correct one.
The Agreement – Context
In accordance with settled principles, I will first have regard to the context in which the clauses, which the Applicant alleges have been contravened by the Respondent, are located.
The Agreement commences with Pt.1 - Agreement Administration, which sets out familiar provisions found in industrial instruments, including definitions, the commencement period of operation, the scope of the Agreement, parties bound and the relationship to the relevant award.
Clause 1.4 - Scope and Parties Bound relevantly provides at 1.4.1:
“1.4.1 This agreement is between:
(a) Airservices and its subsidiaries;
(b) The Union; and
(c) All employees in classifications set out in attachment 1 of this Agreement.
Clause 1.8 - Service Obligation refers to the obligations on the Respondent to “continuously provide safe and efficient airport firefighting services” in accordance with Commonwealth legislation.
It is evident from clause 4.2 – Hours of Work, located in Pt.4 - Working Conditions of the Agreement, that employees covered by the Agreement are employed only as shift workers. Subclause 4.2.1 of the Agreement commences with the words, “As a shift worker, …”. It then proceeds to provide that employees will be consulted about and the Respondent “will endeavour” to achieve a balance between employees’ family and work life and the needs of the business. This Hours of Work clause is immediately followed by lengthy provisions dealing with the making, scope and implementation of shift rosters.
Clause 4.3 – Rostering contains the following relevant provisions:
Definitions
4.3.1 A 10/14 roster consists of:
(a) two (2) 10 hour day shifts;
(b) followed by two (2) 14 hour night shifts;
(c) followed by four (4) days off.
4.3.2 A sympathetic 10/14 roster will feature a fixed roster cycle (e.g. 2 on 4 off).
Rostering Principles
4.3.3 All rosters should average thirty eight (38) hours per week.
4.3.4 Roster hours may be averaged over a 12 month period where it is necessary to meet rostering arrangements at those locations that have fluctuations in summer to winter aircraft activity.
4.3.5 All 24 hour locations (including Sydney) will work a 10/14 roster based on rostering principles contained herein subject only to the exceptions referred to in clauses 4.3.6 and 4.3.7
…
4.3.11 When a new roster has been decided a minimum of seven (7) days notice is required before commencement.
(a) Where this notice period is not given, you will be paid the additional hours rate for each changed shift until you receive seven (7) days notice.
(b) You will not be entitled to this penalty payment in circumstances where you are required to change shift to cover another employee's unplanned absence (e.g. sick or special leave).
4.3.12 Rosters with shifts exceeding fourteen (14) hours will have no more than two (2) “back to back” shifts in succession.
4.3.13 Back to back shifts greater than fourteen (14) hours in duration shall not attract the “no eight (8) hour break provisions”.
4.3.14 No roster shall contain a “quick change around”. Any break between shifts should not be less than eight (8) hours.
…
Other Roster requirements
4.3.16 All rosters must provide maximum operational efficiency, ensure economy of resource utilisation and meet applicable regulatory requirements.
…
4.3.18 Fire Station Managers have responsibility for the requirements of all fire station rosters.
…
4.3.22 Daily Work Programs prescribe ACTIVE, PASSIVE and RECLINING periods which are defined for rostering purposes as follows:
(a) “ACTIVE”, means training, maintenance, administrative and physical training.
(b) “PASSIVE”, means meals and workplace studies.
(c) “RECLINE”, means recreational and sleeping. It is your and the Fire Station Manager's responsibility to ensure you can respond immediately to calls. Where 10/14 rosters are worked recline time is between 2200 and 0600.
Clause 4.8 – FLY IN FLY OUT (FIFO) sets out the conditions under which FIFO arrangements work and relevantly provides at sub-cl.4.8.3 f) of the Agreement:
4.8.3 When working under FIFO arrangements, the following standard conditions will apply:
…
f) FIFO working arrangements will be a designated rotational period of fourteen (14) days. You will be required to work the equivalent of one hundred and fifty two (152) hours (based on a thirty eight (38) hour week × four (4) weeks) in the designated rotational period, which will include travel time from your place of residence to your FIFO post.
In the Agreement, the ordinary hours or ordinary duty are rostered shifts. All rosters are to average 38 hours per week. Other than FIFO employees, in any roster period there are two 10 hour shifts and two 14 hour shifts and four days off. Ideally, the four days off is rostered between the ten-hour and 14-hour shifts. In addition, employees are entitled to Recline periods between 10.00pm and 6.00am whilst working the rostered shifts.
There is no “overtime clause” in this Agreement. However, it is reasonable to assume that in this Agreement, sub-cls. 4.4.1 and 4.4.6 of the Agreement (see [8] above) perform this function. Under those clauses employees are to work reasonable “additional hours” and if an employee works such, then they are paid an “additional rate” or penalty rate.
The evident purpose of Pt.4 of the Agreement is, amongst other things, to establish shift rosters for employees, including FIFO employees, so that the obligation to provide efficient firefighting services, which protect safety at Australian airports, can be served. The Agreement is also designed to strike a balance between meeting these obligations and ensuring that employees’ interests are dealt with fairly and with regard to their interests.
Employees work long shifts, up to ten and 14 hour shifts twice each roster. This is balanced with a four day absence and Recline periods. Employees are required to work reasonable additional hours (sub-cl.4.4.1 of the Agreement), which attract the additional hours rate (sub-cl.4.4.6 of the Agreement) or a penalty. It is in this context that the terms of cl.4.7 of the Agreement are to be construed.
Clause 4.12.1 of the Agreement entitles an employee to be paid a higher duties allowance, where they temporarily perform duties at a higher classification. Part 5 – Remuneration contains detailed provisions setting out the classification structure under the Agreement and progression through the classification structure. Part 5 begins with the following subclauses:
“5.1.1 The Aviation Fire Fighting classification structure and base salary points can be found at Attachment 1 to this Agreement.
5.1.2 Your classification within the structure is dependent on achieving the required qualifications and competencies for that level.”
Clause 5.2 – Progression includes various subclauses, which set out for each classification, the qualifications required and the criteria for progression from one classification to another. Clause 5.4 – Work Level Descriptors sets out the functions, duties and responsibilities for each classification.
Attachment 1 to the Agreement is headed, Classification Structure and Base Salaries. It is in tabular form and specifies, for each classification, the current salary and increases in each salary up to a period of 42 months hence. The classifications listed in the table are those also identified in sub-cl.5.2.1 of the Agreement. The classifications are as follows: Recruit, Trainee Fire Fighter Level 1, Trainee Fire Fighter Level 2, Leading Fire Fighter, Substation Officer, Station Officer and Fire Commander.
Clause 4.7 - Rest Relief
In its written submissions, the Applicant says, regarding the construction of this clause, at [2]:
The plain language of the Agreement is that if an employee does not have 8 consecutive hours off duty before his/her next regular shift, then he/she is entitled to be paid at the rate for additional hours prescribed in clause 4.4.6 ie 1.5 of the ordinary hourly rate.
Thus, the Applicant argues, in circumstances where an employee did not have eight consecutive hours break between his additional hours and the commencement of his next rostered shift, the employee is entitled to be paid for the additional hours and the rostered shift at the additional hours rate.
The Applicant argues that, as Ring and Lopdell did not have eight hours consecutive absence from work between the additional hours they worked and the commencement of their next rostered shift, they were entitled to be paid at the additional hours rate for both the additional hours and the period of their next rostered shift.
The Respondent says in its Outline of Submissions filed on 22 July 2016 at [10] to [15]:
10. The relevant industrial context and purpose of clause 4.7 is the necessity to provide workers who work overtime with adequate rest between the conclusion of a rostered shift as extended by any additional hours or emergency duty and the commencement of their next rostered shift or alternatively the conclusion of a rostered shift and the commencement of any additional hours or emergency duty. It provides, relevantly, two mechanisms to deal with this issue.
11. Part of this context is that the clause appears in an agreement that contemplates that commonly employees will be in “Recline” (which means recreation and sleeping) for a large proportion of the shifts worked under the normal 10/14 roster (see clause 4.3.22).
12. Subclause 4.7.1 addresses the scenario where a worker has completed additional hours and, as a result, there would be less than eight hours break (plus reasonable travelling time) to the worker's next rostered shift. The subclause provides that the worker will not be required to attend for ordinary duties until an eight hour break plus reasonable travelling time is taken and the worker's pay is not to be reduced during the absence. It deals with the scenario where additional hours are worked at the end of a shift reducing the break between the completion of that work (plus reasonable travelling time) and the commencement of the next rostered shift, below eight hours. The mechanism it puts in place is that the worker is relieved of his obligation to attend for work at the commencement of his next rostered shift, without loss of pay.
13. Clause 4.7.1 may broadly be described as dealing with the “work late” scenario. It has the following features:
a. it does not result in extra payment;
b. the effect of the clause is that an employee can absent themselves from their next rostered shift without loss of pay;
c. the focus is on additional time/emergency duty worked at the end of a rostered shift that reduces the gap to the next rostered shift below eight hours; and
d. it does not prevent an employee from attending for work at the commencement of their next rostered shift it merely provides that they cannot be required to do so.
14. As clause 4.7.1 does not provide for extra payment it cannot support the claims brought by Mr Ring or Mr Lopdell.
15. Subclause 4.7.2 may broadly be described as the “called in early” scenario. It addresses the scenario where an employee is required to commence work without eight consecutive hours off duty since the conclusion of their last rostered shift. It has the following features:
a. as it deals with an employee being required to work it cannot be dealing with the scenario provided for in clause 4.7.1. Clause 4.7.1 makes clear that in the scenario it covers no requirement to attend work can be imposed;
b. it deals with the scenario of a person being “called in” and required to perform additional hours of work, where less than eight hours have elapsed between the conclusion of their ordinary roster and the commencement of the additional work;
c. the gap against which the eight hours is measured is between the conclusion of the previous ordinary shift and the commencement of the additional hours; and
d. it provides that in this circumstance, the worker is to be paid at the additional hours rate for all hours worked until the required break is taken.
Consideration
The context in which cl.4.7 of the Agreement operates is an Agreement covering only shift workers under which ordinary hours of work are worked over rostered shifts. In circumstances where the regulation of the roster system and the conditions under which shift work is worked, is established by detailed provisions, I am satisfied that the clause must be construed so that it operates harmoniously and not arbitrarily or capriciously. Further, the Agreement must be construed so that each provision is effective and not rendered otiose.
Each of sub-cls.4.7.1 and 4.7.2 of the Agreement, commence with the phrase, “If you are required to work”. Clearly, this conditions the operation of those clauses. They come into effect where an employee is required to work by the Respondent.
Subclause 4.7.1 of the Agreement is expressed in the nature of a prohibition, in that it can be said to crystallise when an employee decides not to work until the employee has had eight hours absence from work. This emerges from the use of the phrase “you will not be required to attend for ordinary duty”. The clause is clearly concerned to ensure that an employee is entitled to an eight hour break from one rostered shift to the next rostered shift. In my opinion, this is apparent from the reference in sub-cl.4.7.1 of the Agreement, “to your next regular shift commencement time” and the further reference “to attend for ordinary duty”. In the context of an Agreement which regulates the conditions of shift workers by the inclusion of detailed provisions relating to rostering, the reference to a “regular shift” and “ordinary duty” can only be construed as a reference to an employee’s rostered shift. The word “next”, is forward-looking and presumes the existence of something earlier. The ordinary meaning of the word “next” can be ascertained by reference to Dictionary definitions. The Macquarie dictionary (on-line) defines “next” as, “adjective 1. immediately following in time”. In this subclause, that which is immediately being followed can only be the previous rostered shift.
It is evident that sub-cl.4.7.1 of the Agreement is directed to relieving employees, who have completed their rostered shift, who are then required to work additional hours after the completion of that shift, with the consequence that there would not be a break of at least eight hours until the commencement of the next regular rostered shift, from working until they have an eight-hour break, without any reduction in pay. Unambiguously, it establishes a mechanism by which an employee, who has completed his/her rostered shift and is then required to work additional hours, from being required to work at the commencement of the next rostered shift, if this requirement has the effect that there will not be an eight hour break between those shifts. It is, in my opinion, significant that the subclause does not concern itself with the payment of a penalty to the employees, who do not exercise their right not to work ordinary duty, until they have had an eight hour break. The clause only requires that the employee be paid his/her ordinary pay during the period he/she does not work, until he/she has had an eight hour break.
In my opinion, sub-cl.4.7.2 of the Agreement is directed to different circumstances to those which the preceding sub-cl.4.7.1 of the Agreement applies.
It must be recalled that sub-cl.4.7.1 of the Agreement does not simply establish boundaries or parameters within which additional hours may be worked between regular shifts or rostered duty, on pain of penalty. It goes further and directs that “you”, an employee, “will not be required” to attend for ordinary duty until the employee has been absent from work for eight hours. The subclause makes it plain that an employee who takes the benefit of this entitlement not to attend work, will not suffer a reduction in pay they would have earned at the next regular shift. In direct contrast, sub-cl.4.7.2 of the Agreement provides that a penalty is to be paid, where an employee is required to work additional hours without an eight hour break. It does not accord with common sense to treat sub-cl.4.7.2 of the Agreement as one which has effect when an employee does not exercise a right (which is expressed in unambiguous terms) under cl.4.7.1 of the Agreement.
Having found that sub-cl.4.7.2 of the Agreement is to be construed as having effect in circumstances different to those contemplated in sub-cl.4.7.1 of the Agreement, the next question to decide is what are those circumstances. In other words, what is intended by the opening words, “If you are required to work without eight (8) consecutive hours off duty”. I am satisfied that the ordinary meaning of these opening words, in the context of a shift work rostering system established by the Agreement, is that the subclause applies where an employee has completed a rostered shift and before the commencement of the next regular shift, he/she is required or called in to work additional hours. If this has the effect that they would not be absent from duty for eight hours from the end of their last rostered shift to the commencement of the additional hours, the employee is entitled to be paid the additional rate until they enjoy an eight hour break.
So construed, it can be seen that cls. 4.7.1 and 4.7.2 of the Agreement operate harmoniously. Where an employee has completed a rostered shift and is required to work further additional hours, he/she is entitled to absent themselves from work until they have enjoyed an eight hour break. If they do so, they will still receive their ordinary pay up until the time they have had an eight-hour break: cl.4.7.1 of the Agreement. On the other hand, where an employee has completed a rostered shift, has not yet had an eight-hour break and is required to work additional hours before the commencement of the next rostered shift, then they are paid the additional hours rate in accordance with cl.4.7.2 of the Agreement. The integrity of the system, which provides for eight-hour breaks between one rostered shift to another, is thereby secured.
As I have determined the correct meaning of sub-cls. 4.7.1 and 4.7.2 of the Agreement, it is unnecessary to deal with the issue of onus.
Turning to the alleged contraventions in relation to Lopdell and Ring.
The circumstances in which Lopdell worked additional hours are described in the Agreed Statement of Facts filed on 31 March 2016 as follows:
Lance Lopdell
12. On 5 June 2014 Lance Lopdell was rostered off for the night shift.
13. Mr Lopdell worked additional hours from 2200 hrs on 5 June 2014 until 0700 hrs on 6 June 2014. He commenced his rostered day shift at 0700 hrs on 6 June 2014 and worked until 1700 hrs on that day.
14. Mr Lopdell did not have a break from duty between the additional hours worked and the commencement of his rostered shift on 6 June 2014.
15. Mr Lopdell had:
a. four days off duty prior to commencing the additional hours on 5 June 2014; and
b. eight consecutive hours off duty (plus reasonable travelling time) between the conclusion of his rostered shift on 6 June 2014 and the commencement of his next shift at 0700 hours on 7 June 2014.
16. Mr Lopdell was paid the additional hours rate (1.5 × base rate) for the additional hours commenced on 5 June 2014. He was paid at his base rate of pay for his rostered shift on 6 June 2014.
The Applicant claims that Lopdell was entitled to be paid in accordance with cl.4.7.2 of the Agreement, the additional rate for the duration of his rostered shift on 6 June 2014; from 7.00am to 5.00pm, as well as the additional hours worked.
As Lopdell was absent from work for at least eight hours from the end of his last shift to commencing the additional hours at 10.00pm on 5 June 2014, cl.4.7.2 of the Agreement has no application. Lopdell was entitled, under cl.4.4.6 of the Agreement, to be paid at the additional rate for the additional hours that he worked and was paid as such. Accordingly, there was no breach of cl.4.7.2 of the Agreement.
The circumstances in which the Applicant alleges Ring was entitled to be paid the additional hours rate for additional hours worked are described in the Agreed Statement of Fact filed on 31 March 2016 as follows:
John Ring
7. On 8 September 2014 John Ring was rostered off for the day shift.
8. On 8 September 2014 Mr Ring attended a training course from 0900 hrs to 1500 hrs, for which he was paid on the basis of the time being additional hours. Airservices’ position is that Mr Ring volunteered to attend the course. Mr Ring disputes this. He commenced his rostered night shift at 1700 hrs and worked until 0700 hrs on 9 September 2014.
9. Mr Ring did not have a break from duty of 8 hours (plus reasonable travelling time) between the additional hours worked on 8 September 2014 and the commencement of his rostered shift.
10. Mr Ring had eight consecutive hours off duty (plus reasonable travelling time) between:
a. the conclusion of his shift on 7 September 2014 and the commencement of the additional hours on 8 September 2014; and
b. the conclusion of his rostered shift on 8 September 2014 and the commencement of his next shift at 1700 hrs on 9 September 2015.
11. Mr Ring was paid the additional hours rate (1.5 × base rate) for the additional hours worked on 8 September 2014. He was paid at his base rate of pay for his rostered shift on 8 September 2014.
The Applicant claims that Ring was entitled to be paid, under cl.4.7.2 of the Agreement, the additional rate for his rostered shift commencing 5.00pm on 8 September 2014 and ending at 7.00am on 9 September 2014, as well as the additional hours worked.
As Ring was absent from work for at least eight hours from the end of his last shift to commencing the additional hours on 8 September 2014, cl.4.7.2 of the Agreement has no application. Accordingly, there was no breach of cl.4.7.2 of the Agreement.
A controversy, which arises from the pleadings, was the subject of cross-examination and submissions by the parties. In the Applicant’s Amended Statement of Claim filed on 21 August 2015, it was pleaded at [18] that Ring was “required to work additional hours from 0900 hrs to 1500 hrs” on 8 September 2014.
In its Amended Defence filed on 27 August 2015, the Respondent pleaded at [18] that:
… save that it admits that on 8 September 2014 John Ring attended a voluntary training course from 0900 hrs to 1500 hrs and was paid the additional hours rate in respect of those hours it denies the allegations in paragraph 18.”
The controversy between the parties was whether Ring was required by the Respondent to attend a training course held on that day or whether his attendance was voluntary. In light of my findings as to the proper construction of cl.4.7.2 of the Agreement and its application to the circumstances in which Ring worked additional hours, it seems to me that this controversy has no application to the question of whether Ring was entitled to be paid the additional rate for his rostered shift commencing 5.00pm on 8 September 2014 and ending at 7.00am on 9 September 2014. There is no dispute that he was paid the additional rate for the hours spent at training.
Notwithstanding this, I will briefly deal with this controversy.
By way of background, the Learning Academy is a division of Airservices that provides workplace training to firefighters and air traffic controllers. It is a registered training organisation, which runs courses that include the nationally accredited firefighting qualifications, as well as mandatory qualifications required by the Civil Aviation Safety Authority (“CASA”). The Applicant claimed Ring was required to attend the relevant training course on the following basis:
a)firstly, undertaking the training at the Learning Academy was necessary for Ring to maintain his present CASA 127 licence. Ring’s evidence is that undertaking training in Language, Literacy and Numeracy (“LNN”) was necessary for him to maintain his Certificate IV in Training and Assessment (“Certificate IV”). As a prerequisite to maintaining the CASA 127 licence is holding a current Certificate IV, his attendance at the LNN course in September 2014 was required; and
b)secondly, a copy of a roster for the Townsville Fire Station for September 2014, where Ring worked at the relevant time, discloses that Ring was rostered to train in the LNN course that day (Exhibit A2). The roster is colour-coded, with ordinary shift worked coloured in red and black. Whereas, on the day in question, Ring’s shift was coloured in green, as were other attendees at the course.
Ring was cross-examined. He said that he was advised by the Respondent that the course in question was available to those working at the Townsville Fire Station and would be the only opportunity for him to attend the course. He was also informed he would not be entitled to a nine hour break. He agreed that his current certification, TAE40110 Certificate IV in Training and Assessment, dated 23 August 2012 (Exhibit R1), included, as an elective, completion of the LNN unit. He further agreed that the present Qualification Details TAE40110, Certificate IV in Training and Assessment (Exhibit R2), has, as an elective, the LNN unit.
Ring gave evidence that his roster on 8 September 2014 was coloured green on the roster for the Townsville Fire station (Exhibit A2), as compared to the other days he was rostered to work, which were coloured red. He said this demonstrated he was rostered to attend the training course and consequently required to do so by the Respondent.
Gary Steven Browning, Acting Fire Station Manager, Brisbane, who was in September 2014, the Fire Station Manager at Townsville Airport, was called to give viva voce evidence. He said that although he did not prepare the roster, he approved the roster in question in his position of Fire Station Manager. His evidence was that, given Ring’s then qualifications, it was not compulsory for him to attend the LNN unit. It was compulsory for employees in some other classifications to attend, but not Ring. He said that employees who were designated on the roster by the letters “LNN” or “TAE” and colour-coded green were required to undertake the “up skilling”. He said the LNN unit is part of training and assessment for TAE courses. He said that on the day in question the rostered shifts for all employees, whether or not their attendance at the course was compulsory for the purpose of acquiring the requisite qualifications, was colour-coded green, so as to inform employees that it was a training day.
The Applicant argues that as Mr Browning did not prepare the roster, his evidence should be disregarded.
On the undisputed facts, it is apparent that Ring was not required to attend and complete the LNN unit in order to maintain his Certificate IV. He had clearly completed the unit when he obtained his Certificate IV in 2012, which was still current or valid in September 2014.
I do not find the evidence of the roster of shifts on 8 September 2014 (Exhibit A2) convincing either way. It is apparent that the shifts that day were colour-coded green for some, but not all employees. Those employees with LNN or TAE marked against their name were all colour-coded green. Some of the employees who were designated as rostered for day or night shift were colour-coded green. On the other hand, some employees who were rostered for dayshift were colour-coded black and some who were rostered for nightshift were colour-coded red.
On the balance of probabilities, given Ring’s then qualifications included the completion of the LNN unit as an elective, I am satisfied that Ring’s attendance at the course was voluntary.
Clause 4.4.6 and the Learning Academy
The Agreement is silent regarding the conditions and/or remuneration which apply where employees attend training at the Learning Academy.
At the relevant time both Skeet and Pooley were FIFO employees. There is no dispute that their attendance at the particular courses conducted by the Learning Academy was voluntary. There is also no dispute that the training at the Learning Academy was conducted, Monday to Friday, for a period of 7.6 hours each day. Both parties agree that where an employee attends training, the travel time to and time spent at the Learning Academy is to be treated as hours worked.[2]
[2] Agreed Statement of Facts filed on 31 March 2016 at [21].
The dispute between the parties is about the application of sub-cl.4.4.6 of the Agreement to circumstance where employees spend time training at the Learning Academy. The Applicant claims that an employee should be paid at the additional rate for all hours the employee spends training at the Learning Academy (the total of travelling time and actual training of 7.6 hours each day of training). Thus, in the case of Skeet, during the period of 26 June 2014 to 23 July 2014, where it is agreed that as a result of attendance at the Learning Academy, he worked 68.3 hours, the Applicant argues that Skeet was entitled to be paid the additional rate for 68.3 hours. The Respondent submits that each of the employees should have been paid for the total of their rostered hours worked, plus hours in attendance at the training course (including travel time), which exceeded 152 hours over the particular four-week period. Thus, in the example earlier referred to, where it is agreed Skeet worked 68.3 hours in time spent at training, he should be paid the difference between the hours the employee worked his ordinary roster over the relevant four-week period; that is, the difference between time spent at training, rostered hours of duty and any recreation leave and 152 hours. In this particular example, the difference is calculated at 48.98 overtime hours at the additional rate.
I have considered whether, given the Agreement is silent in relation to the attendance by employees at the Learning Academy, I should find that cl.4.4.6 of the Agreement is so ambiguous it is not susceptible to a definitive view as to the construction of this clause, in circumstances where employees attend for training at the Learning Academy. The dispute between the parties regarding the application of this subclause seems, to me, one better resolved by dealing with the dispute through the Agreement’s provisions, 3.4 – Disputes Avoidance and Settlement Process. Section 271 of the Act provides that the Fair Work Commission may vary an Enterprise Agreement to remove ambiguity or uncertainty: see AFMEPKIU at [69].
Were it not for the agreement between the parties that, where an employee attends training, the travel time to and time spent at the Learning Academy is to be treated as hours worked, I may well have dismissed the application in respect of the alleged contraventions of this clause for the reasons set out in [21] above. However, I have taken the view that the Agreement provides a basis for the Court, in the context of the Agreement itself, to arrive at a definitive view regarding the operation of cl.4.4.6 of the Agreement, where employees attend training at the Learning Academy.
The Applicant’s submission in support of their claim is as follows:[3]
6. Employees from time to time attend the employer’s training academy for courses. When doing so they are required to attend that course.
7. Whilst at such courses an employee attending the academy is directed/required to work 7.6 hours but only those hours.
8. An employee attending a course may do so on a day on which he/she is rostered off-duty. When that is the case the employee is working additional hours within the meaning of the Agreement, and that is how it is regarded by the Respondent.
9. If the training occurs during their normal shift, they are only required to attend for a 7.6 hour day.
10. When, in a cycle, an employee attends a course, works rostered shifts and works additional hours outside his/her rostered shifts, the Respondent has been paying the employee on the basis that the employee is only entitled to be paid for the number of hours attending the course outside rostered hours (considered by the parties to be additional hours) plus any other additional hours, less 152 hours. If attendance at a course falls within rostered hours, the Respondent has treated the difference between the7.6 attended at the course and the employee’s ordinary rostered hours as a “shortfall”.
11. Employees who are not required to work out hours of a shift do not thereby acquire an “hours debt” to the Respondent. They have been willing and able to work the hours that they were rostered to perform; it is the employer who has not required them to work all of those hours.
12. The interpretation can be tested by considering the hypothetical situation where an employee was directed to attend the Academy for training on a rostered shift, was not required to attend for more than 7.6 hours on that day, but was not required to attend the Academy on a non-rostered day in that pay period. In that situation the Respondent would not in fact and could not lawfully reduce, or deduct from, the employee’s salary in relation to the “shortfall”, unless it were subject to a lawful entitlement under a doctrine such as no work no pay.
13. Accordingly an employee who works additional hours when rostered off-duty outside his/her rostered shifts, when attending a course, is entitled to be paid for those additional hours regardless of whether he/she has or has not otherwise completed 152 hours non-additional hours within the cycle.
[3] Outline of Argument of UFU filed on 19 July 2016 at [6] to [13].
The Respondent’s submission, in relation to the treatment of employees who attend the Learning Academy and who are FIFO employees, is as follows:[4]
[4] Respondent’s Outline of Submissions filed on 22 July 2016 at [36] to [37], [39] to [42] and [44].
36. Clause 4.3.3 and 4.3.16 guide the construction of the rostering provisions. When read in combination they call for a common sense and practical approach to rostering subject to the overriding requirement that the roster average 38 hours per week. As discussed above, this approach is consistent with the approach to the construction of enterprise agreements more generally. Clause 4.8.3 puts in place “standard conditions” “when working under FIFO arrangements”. It does not purport to override clause 4.3.3 or clause 4.3.16. Indeed the fly-in fly-out (FIFO) roster, when applied to employees performing operational duties as FIFO workers, is consistent with these clauses.
37. FIFO workers, including Messrs Skeet and Pooley below, were at the relevant time ordinarily rostered to work 152.3 hours split over 12 X 11.33 hour shifts and 2 X 8.17 shifts on Sundays.
…
39. Training courses at the Learning Academy in Melbourne were run for 7.6 hours per day Monday to Friday. Attendees remained in Melbourne on weekends, but were not required to attend training or perform work on those days. Attendees at the Learning Academy were aware that the courses ran for 7.6 hours per day Monday to Friday when they volunteered for the course. They were also aware that they were not rostered for or required to attend work beyond the 7.6 hours Monday to Friday whilst attending the course.
40. In these circumstances it is a nonsense to assert that employees who attended the Learning Academy were willing and able to work the hours they would have been rostered to work under the normal FIFO roster. In volunteering to attend and then attending the Learning Academy the employees had (with the consent of Airservices) made themselves unavailable to perform the work they were rostered to perform.
41. The 2013 Agreement does not expressly address the scenario of workers attending the Learning Academy to complete courses. Necessarily attendance at such courses requires a departure from the ordinary FIFO roster. The 2013 Agreement contemplates such a departure by confining clause 4.8.3 to those “working under FIFO arrangements“. Alternatively because the conditions it puts in place are “standard conditions” they are capable of being modified when anomalous (or non-standard) circumstances (such as Learning Academy attendance) arise. When they attended the Learning Academy Messrs Skeet and Pooley were not working under FIFO arrangements. They were not performing their standard work. They were attending training in Melbourne which they had volunteered for. They did so in full knowledge of the hours that they would be required to attend the course.
42. Steven Davies is the Western Operations Manager for ARFF. Mr Davies will give evidence that to allow FIFO staff to participate in courses staff undertake the shifts that they can with their usual crew at the fire station and then travel to Melbourne to undertake the course on the scheduled dates. In order to determine how many additional hours to pay a staff member undertaking a course Airservices:
a. calculated the total number of hours worked both at the fire station and at the Learning Academy during what would normally be off and on duty periods for the person;
b. if the number was more than 152.3 hours, then the number of additional hours are paid at the additional hours rate; and
c. if the number was less than 152.3 hours, no additional hours are paid.
…
44. Airservices did not pay a FIFO worker the additional hours rate for every hour worked during a period that would normally have been an off duty period since the worker was required to work 152 hours over four weeks. Only where the worker worked more than 152 hours was the worker entitled to an additional hours payment under clause 4.4.6.
Consideration
In the absence of express provisions in the Agreement dealing with the treatment of employees who attend training at the Learning Academy, the approach to be adopted in construing the application of sub-cl.4.4.6 of the Agreement to time spent at training by FIFO employees, must be in the context of relevant provisions of the Agreement. These are the Rostering Principles: in particular sub-cl.4.3.3 of the Agreement, together with the provisions relating to FIFO employees in sub-cl.4.8.3 f) of the Agreement. This context is summarised in the Agreed Statement of Facts filed on 31 March 2016, as follows at [17]:
Lloyd Skeet and Neil Pooley ordinarily worked under FIFO arrangements which included:
a. a designated rotational period of fourteen (14) days; and
b. a requirement to work the equivalent of one hundred and fifty-two (152) hours (based on a thirty-eight (38) hour week × four (4) weeks) in the designated rotational period.
At the relevant time Skeet and Pooley were ordinarily rostered to work 152.3 hours (consisting of 12 × 11.33 hour shifts and 2 × 8.17 hour shifts) during a 14 day period, followed by 14 days off duty.
It is, in my opinion, significant that cl.4.8 – Fly In Fly Out (FIFO) of the Agreement stands alone and does not fall within the general provisions covering rostering: cl.4.3 of the Agreement. Furthermore, the commencing words of cl.4.8.3 of the Agreement are as follows, “When working under FIFO arrangements, the following standard conditions will apply:”. The standard conditions include sub-cl.4.8.3 f) of the Agreement, which provides that FIFO employees work rotational rosters – 14 days on and 14 days off – equivalent to the 152 hours (including travel time) over a four-week period. It is clear from that clause that the roster arrangement is in conformity with sub-cl.4.3.3 of the Agreement, which requires that all rosters average 38 hours a week. It achieves this by the specific roster arrangement, under which time worked during the four-week period is to be the equivalent of 152 hours.
It is apparent, from the structure of the Agreement dealing with rostering, that these standard conditions apply only to FIFO workers. I am satisfied, that read fairly, the ordinary meaning of sub-cl.4.8.3 f) of the Agreement, is that hours worked in excess of 152 hours in a four-week period should be treated as additional hours or overtime under the Agreement.
In my opinion, where a FIFO employee spends time attending a training course at the Learning Academy, which time both parties treat as time worked, then consistently with the standard conditions that apply to their employment, the following approach is to be adopted in calculating which hours worked by the employee should be paid at the additional rate under sub-cl.4.4.6 of the Agreement.
First, the relevant four-week period; that is, the designated rotational roster of 14 days on and 14 days off, during which the FIFO employee is training at the Learning Academy, is identified. Second, the hours worked over the four-week period is calculated. These hours include the hours the employee would ordinarily have been rostered for duty or worked (including travel time), any recreational leave hours and the hours which the employee attended at the training course, together with any travel time taken to attend training.
Second, the difference between the hours worked over the four-week period, calculated in accordance with [80] above, and 152 hours becomes the additional hours during that four-week period, which are to be paid at the additional rate under cl.4.4.6 of the Agreement.
It is appropriate to deal with some anomalies the Applicant has raised with respect to the Respondent’s approach. The Applicant argues that “If attendance at a course falls within rostered hours, the Respondent has treated the difference between the 7.6 attended at the course and the employee’s ordinary rostered hours as a “shortfall”. No evidence was adduced in support of this assertion. I note, from the Agreed Statement of Facts filed on 31 March 2016, that in each of the circumstances in which the Applicant alleges a contravention of cl.4.4.6 of the Agreement, neither Skeet, nor Pooley spent time training at the Learning Academy, when they were rostered to perform their ordinary duties. In any event, under the construction I have given to the operation of cl.4.4.6 of the Agreement, together with sub-cl.4.8.3 f) of the Agreement, this circumstance would not arise.
I now turn to the circumstances of Skeet and Pooley, as set out in the Agreed Statement of Facts 31 March 2016. The circumstances are extracted below:
Lloyd Skeet: 26 June – 23 July 2014
22. Mr Skeet travelled to Melbourne and attended training from 29 June 2014 to 18 July 2014. He was not rostered to perform his ordinary duties during the training period.
23. As a result of attendance at the Learning Academy Mr Skeet worked 68.3 hours during a period that he would ordinarily have been rostered off duty.
24. Mr Skeet took recreation leave from 19 to 23 July 2014.
25. During the period of 26 June – 23 July 2014 Mr Skeet:
a. worked or took recreation leave for a total of 179.32 hours;
b. if he had not undertaken Learning Academy training, would have worked or taken recreation leave for 152.3 hours;
c. was paid in respect of 48.98 overtime hours at the additional hours rate.
Lloyd Skeet: 18 September – 15 October 2014
26. Mr Skeet travelled to Melbourne and attended training from 28 September to 10 October 2014. He was not rostered to perform his ordinary duties during the training period.
27. As a result of attendance at the Learning Academy Mr Skeet worked 56.7 hours during a period that he would ordinarily have been rostered off duty.
28. During the period 18 September – 15 October 2014 Mr Skeet:
a. worked a total of 194.56 hours;
b. if he had not undertaken Learning Academy training, would have worked for 152.3 hours;
c. was paid in respect of 49.50 overtime hours at the additional hours rate.
Lloyd Skeet: 8 January – 4 February 2015
29. Mr Skeet travelled to Melbourne and attended training from 18 January to 30 January 2015. He was not rostered to perform his ordinary duties during the training period.
30. As a result of attendance at the Learning Academy Mr Skeet worked 57.37 hours during a period that he would ordinarily have been rostered off duty.
31. During the period 8 January – 4 February 2015 Mr Skeet:
a. worked a total of 196.89 hours;
b. if he had not undertaken Learning Academy training, would have worked for 152.3 hours;
c. was paid in respect of 51.50 overtime hours.
Neil Pooley: 12 June – 9 July 2014
32. Mr Pooley travelled to Melbourne and attended training from 22 June to 4 July 2014. He was not rostered to perform his ordinary duties during the training period.
33. As a result of attendance at the Learning Academy Mr Pooley worked 58.2 hours during a period that he would ordinarily have been rostered off duty.
34. During the relevant roster period Mr Pooley:
a. worked a total of 196.14 hours;
b. if he had not undertaken Learning Academy training, would have worked for 152.3 hours;
c. was paid in respect of 45.50 overtime hours.
Neil Pooley: 30 October – 26 November 2014
35. Mr Pooley travelled to Melbourne and attended training from 9 to 26 November 2014. He was not rostered to perform his ordinary duties during the training period.
36. As a result of attendance at the Learning Academy Mr Pooley worked 30.38 hours during a period that he would ordinarily have been rostered off duty.
37. During the relevant roster period Mr Pooley:
a. worked a total of 109.55 hours;
b. if he had not undertaken Learning Academy training, would have worked for 152.3 hours;
c. was paid in respect of 7.58 overtime hours.
For the period 26 June 2014 to 23 July 2014, Skeet worked or took recreational leave for a total of 179.32 hours. The difference between this and 152 hours is 27.32 hours. Skeet was therefore entitled to be paid the additional rate under sub-cl.4.4.6 of the Agreement for 27.32 hours. The Respondent paid Skeet 48.98 hours at the additional rate. Thus, the Respondent did not breach the Agreement.
For the period 18 September 2014 to 15 October 2014, Skeet worked a total of 194.56 hours. The difference between this and 152 hours is 42.56 hours. Skeet was therefore entitled to be paid the additional rate under sub-cl.4.4.6 of the Agreement for 42.56 hours. The Respondent paid Skeet 49.50 hours at the additional rate. Thus, the Respondent did not breach the Agreement.
For the period 8 January 2015 to 4 February 2015, Skeet worked 196.89 hours. The difference between this and 152 hours is 44.89 hours. Skeet was therefore entitled to be paid the additional rate under sub-cl.4.4.6 of the Agreement for 44.89 hours. The Respondent paid Skeet 51.50 hours at the additional rate. Thus, the Respondent did not breach the Agreement.
For the period 12 June 2014 to 9 July 2014, Pooley worked 196.14 hours. The difference between this and 152 hours is 44.14 hours. Pooley was therefore entitled to be paid the additional rate under sub-cl.4.4.6 of the Agreement for 44.14 hours. The Respondent paid Pooley 45.50 hours at the additional rate. Thus, the Respondent did not breach the Agreement.
For the period 30 October 2014 to 26 November 2014, Pooley worked 109.55 hours. This estimate of hours worked arises because, for the period 30 October 2014 to 26 November 2014, Pooley was not rostered for duty. Prior to commencing his time spent at training, Pooley had 10 days off duty. He then attended the course for two weeks and three days, following which he had 14 days off duty.[5]
[5] Affidavit of Steven Neil Davies affirmed 20 May 2016 at [38] to [40].
The difference between 109.55 hours and 152 hours is 42.45 hours less than the standard. Pooley was therefore not entitled to be paid the additional rate under sub-cl.4.4.6 of the Agreement. The Respondent paid Pooley 7.58 hours at the additional rate. Thus, the Respondent did not breach the Agreement.
Accordingly, I find there has been no breach of sub-cl.4.4.6 of the Agreement.
Clause 4.12.1
The circumstances in relation to Stenhouse are described in the Agreed Statement of Facts filed on 31 March 2016, as follows at [38] to [42]:
Higher duties allowance: contravention of clause 4.12.1
38. At all relevant times Andrew Stenhouse held the substantive classification of Fire Commander.
39. Between 17 December 2013 and 8 January 2014 Mr Stenhouse performed the duties of Fire Station Manager.
40. The classification of Fire Commander is the highest classification covered by the Agreement. Attachment 1 of the Agreement does not contain the classifications of Fire Station Manager or Senior Fire Commander.
41. The temporary appointment of Andrew Stenhouse to the position of Fire Station Manager was effected through a common law agreement made on 16 December 2013, which provided that Mr Stenhouse would receive a higher duties allowance of 18% of his base salary, but would not be eligible for allowances that he would normally receive in his substantive role.
42. During the period when Andrew Stenhouse was performing the duties of Fire Station Manager he was paid at the rate of $58.16 per hour. He continued to receive his superannuation entitlements under the Agreement in addition to the hourly rate.
Subclause 4.12.1 of the Agreement provides as follows:
4.12.1 Higher duties
(a) You are eligible for the payment of higher duties allowance when you temporarily perform duties at a higher classification for a cumulative period greater than forty (40) hours.
(b) When performing higher duties, you will be paid at the substantive salary of the higher classification.
(c) When you temporarily perform the duties of a classification for which the conditions of service differ from the conditions of service of your usual classification, you will be subject to the conditions of the classification pertaining to the higher duties.
(d) Where you are not required to perform the full duties of the higher classification, we may agree to an appropriate part performance allowance.
(e) If you are granted leave with pay while receiving higher duties allowance, you will continue to receive the allowance as if you would have continued to perform the duties, provided that where the leave is half pay leave, the payment of the allowance will be made on a pro rata basis.
The issue in dispute is whether sub-cl.4.12.1 of the Agreement applies in circumstances where an employee performs the higher duties of a classification not identified in Attachment 1 of the Agreement.
The Applicant’s submissions in its Outline of Argument filed on 19 July 2016 in support of its claim that Stenhouse should have been paid at the substantive salary of a Fire Station Manager, is as follows:
15. Clause 4.12.1 of the Agreement provides that an employee is eligible for the payment of higher duties allowance when temporarily performing duties at a higher classification. It further provides that when performing higher duties, the employee will be paid at the substantive salary of the higher classification, and if the conditions of service differ from the conditions of service of the employee’s usual classification, the conditions of the classification pertaining to the higher duties will apply.
16. All classifications covered by the Agreement have the same conditions of employment under the Agreement.
17. The classification of Fire Station Manager is a higher classification than Fire Commander.
18. Alternatively the position of Fire Station Manager is usually filled by an employee classified as Senior Fire Commander, which is a higher classification than Fire Commander.
19. Fire Station Manager is not a classification in the Agreement; however the role of a Fire Station Manager is substantively performed by a Senior Fire Commander.
20. There is no rate of pay or classification description of Senior Fire Commander in the Agreement, although the existence of such a classification is acknowledged in clauses 5.2.9, and 5.4.7.
21. Under clause 4.12.1(c) conditions of service can only be different for an employee performing higher duties when that employee’s higher duties are as a Senior Fire Commander because all other classifications have the same conditions of service. The provision specifically envisaged the higher duties clause applying to Fire Commanders acting as Senior Fire Commanders.
22. In accordance with sub-clause 4.12.1 of the Agreement, during the period when Andrew Stenhouse was performing the duties of Fire Station Manager he was entitled to be paid at the substantive salary of the higher classification.
The Applicant’s argument that sub-cl.4.12.1(b) of the Agreement should be construed so that it applies to an employee (Fire Commander) temporarily performing the duties of Fire Station Manager is threefold:
a)subclause 4.12.1(c) of the Agreement regulates circumstances where an employee is temporarily performing the duties of a classification, “for which the conditions of service differ from the conditions of service of your usual classification.” It is argued, that this subclause must be assumed to have some work to do. All classifications listed in Attachment 1 of the Agreement enjoy the same conditions of service. Thus, it is submitted, this subclause can only apply to classifications, such as the classification of Fire Station Manager, which have different conditions of service. Thus, read in context, sub-cl.4.12.1 of the Agreement must be construed to apply to classifications other than those identified in Attachment 1 of the Agreement;
b)as a matter of practice, the duties of Fire Station Manager are usually filled by a Senior Fire Commander of the Station and the duties of Fire Station Manager are substantively performed by a Senior Fire Commander; and
c)Attachment 1 of the Agreement does not cover the field of classifications referred to in the Agreement: see sub-cls. 5.2.9 and 5.4.7 of the Agreement. For example, sub-cl.5.2.9 of the Agreement refers to a classification of Senior Fire Commander, which is not identified in Attachment 1 of the Agreement.
Subclause 5.2.9 of the Agreement is located in Pt.5 of the Agreement, which deals with progression from one classification to another. Subclause 5.2.1 of the Agreement sets out, in tabular form, the required qualifications and minimum time period criteria for each classification identified in Attachment 1 of the Agreement. Subclause 5.2.9 of the Agreement describes the progression, including the requisite qualifications from one classification to another. Subclause 5.2.9 of the Agreement provides:
Subject to your suitability, as a FC you will be encouraged to continue studies toward an Advanced Diploma in Public Safety (Fire Fighting Management). On successful completion of all competency units you will be qualified for promotion to the classification of Senior Fire Commander (SFC), subject to position availability. Appointments will be on the basis of merit in accordance with Clause 5.7 of the Agreement.
Subclause 5.4.7 of the Agreement, which falls within clause 5.4 – Work Level Descriptions, provides:
“As a Fire Commander you will take charge of a team of fire fighters and as a supervisor be responsible for the operational effectiveness and administrative functioning of the team. At Category 5 Fire Stations you may be responsible as the Fire Station Manager for the operation of that Fire Station. …”
The Respondent’s written submission, in their Outline of Submissions filed on 22 July 2016, in support of its argument that Stenhouse was not required, under the Agreement, to be paid at the substantive salary of Fire Station Manager is as follows:
57. The clause needs to be read in combination with clause 1.4.1 of the 2013 Agreement which makes clear that the 2013 Agreement only applies to employees employed in the classifications set out in Attachment 1 of the 2013 Agreement.
58. The key phrases in the clause are “higher classification” in subclauses (a) and (b) and “the classification” in subclause (c). In the context of an agreement that contains a classification structure, these phrases should be read as referring to the classifications provided for within that structure. They do not refer to position titles that fall outside that structure.
59. The classification structure at Attachment 1 of the 2013 Agreement covers employees working in classifications from Recruit through to Fire Commander. Fire Commander is the highest classification covered by the 2013 Agreement.
60. The role of Fire Station Manager is not a classification covered by the 2013 Agreement.
61. Where a worker covered by the 2013 Agreement agrees to temporarily act in the role of Fire Station Manager the person is not covered by the 2013 Agreement during the period of the appointment. Rather they are covered by the common-law arrangements that pertain to that appointment.
Consideration
I reject the construction of sub-cl.4.12.1 of the Agreement proffered by the Applicant for the following reasons:
a)first, sub-cl.1.4.1 of the Agreement expressly provides that the Agreement applies to employees employed in classifications set out in Attachment 1 of the Agreement. There is no room to extend the scope of the provisions of the Agreement beyond the reach of sub-cl.1.4.1 of the Agreement. In my opinion the provisions of sub-cl.4.12.1 of the Agreement cannot be construed so it operates beyond the reach of sub-cl.1.4.1 of the Agreement;
b)second, the position of classification of Fire Station Manager is not specified in Attachment 1 of the Agreement. The classification of Fire Commander is the highest classification referred to in Attachment 1 of the Agreement; and
c)third, the resort to the words “higher classification” in sub-cl.4.12.1 a) of the Agreement must be understood in the context of the Agreement as a whole. The Agreement provides for an Aviation Fire Fighting classification structure. This structure is set out in detailed provisions in Pt.5 of the Agreement. This Part regulates the classifications of firefighters within the structure:
i)subclause 5.1.1 of the Agreement expressly provides the classification structure is found at Attachment 1 of the Agreement;
ii)clause 5.2 of the Agreement describes the minimum qualifications and progression criteria to be met for progression through the classification structure, as detailed in Attachment 1 of the Agreement; and
iii)clause 5.4 of the Agreement sets out the work descriptors for each classification identified in Attachment 1 of the Agreement.
It is evident, in my opinion, having regard to the provisions which deal with classifications in the Agreement, that any reference to a classification within the Agreement must be construed as a reference to a classification specified in Attachment 1 of the Agreement.
It follows, therefore, that the reference to a “higher classification” in sub-cl.4.12.1(b) of the Agreement can only be construed as a reference to a classification which is provided for within the classification structure identified in Attachment 1 of the Agreement and in respect of which the detailed provisions contained in cls. 5.2 and 5.4 of the Agreement govern its integrity.
I do not accept the Applicant’s submission relying on sub-cl.4.12.1 (c) of the Agreement to support their construction. In my opinion, that subclause does not condition the eligibility for a higher duties payment. It operates to ensure that employees receive the same conditions as those which the higher classification may be entitled to. It operates to ensure there is no injustice to an employee who performs higher duties. The fact that there are no differences in conditions in the classifications specified in Attachment 1 of the Agreement is, in my view, irrelevant.
Nor do I accept that the provisions of sub-cls. 5.2.9 and 5.4.7 of the Agreement assist the Applicant. Properly read each subclause is peripheral to the classification structure that the Agreement is intended to cover. Subclause 5.2.9 of the Agreement simply provides for when a Fire Commander would be qualified for promotion to a classification of Senior Fire Commander. Subclause 5.4.7 of the Agreement merely states that a Fire Commander will be responsible to the Fire Station Manager. The fact that these two subclauses referred to classifications not identified in Attachment 1 of the Agreement is not a persuasive reason for departing from the analysis in [99] to [101] above.
Accordingly, I find that Stenhouse was not entitled to be paid at the substantive salary of Fire Station Manager and the Respondent did not breach sub-cl.4.12.1(b) of the Agreement.
Conclusion
For the reasons set out in this judgment, the application will be dismissed.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 22 September 2016
2