United Voice v Schweppes Australia Pty Ltd

[2013] FWC 2338

[2013] FWC 2338

FAIR WORK COMMISSION

DECISION

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

United Voice
v
Schweppes Australia Pty Ltd
(C2012/6706)

VICE PRESIDENT WATSON SYDNEY, 16 APRIL 2013

Dispute under a workplace determination - Schweppes Australia (Tullamarine) Production and Warehouse Employees Workplace Determination 2012 - 6 day shift pattern - whether public holiday falling on a non working day gives rise to an entitlement to take another day of leave or be paid an amount in lieu - Fair Work Act 2009 - ss. 423, 596, 739.

Introduction

[1] This decision concerns a dispute between United Voice and Schweppes Australia Pty Ltd (Schweppes) under the Schweppes Australia (Tullamarine) Production and Warehouse Employees Workplace Determination 2012 1(the Workplace Determination). The dispute primarily relates to the interpretation of Clause 32.1 of the Workplace Determination which deals with public holidays that fall on designated non working days.

[2] Clause 16 of the Workplace Determination authorises Fair Work Australia to conduct arbitration to settle disputes over the application of the Workplace Determination.

[3] The matter was originally listed for conference on 21 January 2013. No resolution was reached. The arbitration of the dispute was listed on 10 April 2013 in Melbourne. Mr S. Kemppi appeared for United Voice. Ms S. Millen, of Herbert Smith Freehills, was granted permission to appear for Schweppes.

[4] The issue in dispute is whether employees who work a six day shift roster pattern are entitled to a benefit, of either an extra day’s annual leave entitlement or an extra day’s pay, for public holidays that fall on a day on which they are not rostered to work. United Voice contends that the employees are entitled to the benefit. Schweppes contends that they are not. The dispute involves the interpretation of relevant provisions of the Workplace Determination. It is accepted by both parties that the dispute should be resolved by applying the correct interpretation of the Workplace Determination.

Background

[5] Schweppes manufactures soft drinks at its factory at Tullamarine in Melbourne’s northern suburbs. The site also has extensive warehousing facilities and is the base for distribution of its products.

[6] The work of production and warehousing employees has been covered by a succession of enterprise agreements for many years, the most recent being approved by Fair Work Australia in June 2010. Its nominal expiry date was 23 September 2011.

[7] Prior to the making of the 2010 Agreement, an agreement applied from 2008. During the period of the 2008 Agreement a dispute arose as to the entitlement of 5 day shift workers to payment with respect to Anzac Day 2009, which fell that year on a Saturday. The dispute was referred to Fair Work Australia and Commissioner Whelan issued a statement on the matter on 5 August 2009. As with the matter now before me, the central provision of the Agreement was the then equivalent of clause 32.2, which had a minor difference in wording. The Commissioner expressed her conclusions on the matter as follows:

“[9] The term ‘designated non-working day’ is not defined in the Agreement or the Award. Its meaning must therefore be derived from the context in which it is used. In this case that context is clause 20 of the Agreement, clause 37 of the Award and the Agreement read as a whole.

[10] First, the phrase used is ‘designated non-working day, RDO’. The fact that there is no ‘and’ or ‘or’ between ‘designated non-working day’ and RDO lends support to the company’s argument that a ‘designated non-working day’ is an RDO.

[11] Second, clause 19 suggests that while a particular day may be an RDO on the site, it may only be a ‘designated non-working day’ for some employees and not others. If clause 29 is read in conjunction with clause 19 it suggests that the intention was that employees who had a ‘designated non-working day’ on the day on which a public holiday fell, because it was their RDO, were entitled to the benefit of clause 29.

[12] As neither Saturday nor Sunday are normally rostered as working days there would be no need to ‘designate’ them as non-working days. A Monday or Friday, on the other hand, would normally be a working day unless ‘designated’ to be otherwise.

[13] I am therefore of the view that clause 29 would not entitle employees to claim a day off paid at ordinary rates or to be paid one day’s pay because in 2009 Anzac Day fell on a Saturday.”

[8] The renegotiation of the 2010 agreement gave rise to a bitter and lengthy dispute which was ultimately ended by Fair Work Australia making an order under s. 423 of the Fair Work Act 2009 (the Act) terminating all industrial action associated with the dispute 2. One of the significant matters in dispute was the working of 6 and 7 day 12 hour shift patterns at the Tullamarine facility.

[9] The Workplace Determination was made after Full Bench proceedings in April, June and July 2012 and is the subject of three Full bench decisions. 3 In its first decision the Full bench said:

“[206] We are prepared to include in the Workplace determination a provision authorising a trial of 6 day shift patterns (12 hours per day). We think a trial basis is appropriate to ensure that the first introduction of extended shifts is attended by proper planning and monitoring. The trial would be on the following basis:

(i) Stage 1: immediately following necessary preparation after the commencement of the Workplace determination (see below):

Authority to commence, on a trial basis, 6 day 12 hour shift patterns (Monday- Wednesday and Thursday to Saturday (fixed) in any production or support area between the months of November to March inclusive.

(ii) Stage 2: 12 months after the commencement of the Stage 1 trial:

Continued authority to operate, on a trial basis, 6 day 12 hour shift patterns (Monday- Wednesday and Thursday to Saturday (fixed) in any production or support area between the months of November to March inclusive.

Authority to commence, on a trial basis, 6 day 12 hour shift patterns (Monday- Wednesday and Thursday to Saturday (fixed) in B1, B3 and directly related support functions, at any time of the year.”

[10] The Workplace Determination was made by the Full Bench on 17 October 2012. It operates from that date and is due to expire on 16 October 2014. The wording of the determination was ultimately settled in conference before Senior Deputy President Watson. As might be expected, the wording of the Determination borrows heavily from the previous agreement and the draft variations sought by the parties.

[11] During the course of the Full Bench proceedings, United Voice sought to have a clause inserted into the Appendix that dealt with the 6 day shift roster to the effect that where employees are not rostered to work on a public holiday, they may elect to receive 7.6 hours pay or have an additional day credited to their annual leave balance. The Full Bench declined to award such a clause but gave no reasons for doing so.

[12] Prior to the Workplace Determination, production and distribution employees traditionally worked a 35 hour week averaged over 2 weeks, by working 9 days of 7 hours and 47 minutes per fortnight, Monday to Friday. The 10th weekday in the fortnight was regarded as a rostered day off.

[13] Pursuant to the terms of the determination, since October 2012, relevant employees have been working a six day non-rotating roster whereby they either work Mondays to Wednesdays or Thursdays to Saturdays every week. Several public holidays have occurred in that period. Employees who were not rostered to work on the public holidays did not receive a day’s leave or payment in lieu for any of those public holidays.

[14] The parties are in dispute as to whether the practice of not providing this benefit is consistent with the Workplace Determination. United Voice seeks relief with respect to public holidays that have occurred, and future public holidays, in the form of the provision of the benefit it says arises from clause 32.2 of the Workplace Determination.

Relevant Provisions of the Workplace Determination

[15] The Workplace determination contains various provisions dealing with the issue in dispute. The source of the alleged entitlement claimed by United Voice is clause 32.2. It provides:

“32.2. If any of the holidays referred to in clause 32.1 fall on a designated non-working day (i.e. RDO), an employee who is not required to work on that day shall, by agreement between the employee and Company, be allowed a day off at a mutually agreed time to be paid at ordinary rates. If agreement cannot be reached, the employee shall be paid one day’s pay at ordinary time in lieu thereof.”

[16] Schweppes contends that the meaning of the clause is dependent on the provisions of the Workplace Determination dealing with Hours of Work, Shift Rosters and Rostered Days Off Arrangements. In this regard, Clause 21 provides:

“21. Hours of Work

21.1. Hours of work are as set out in Appendices D, E, and F.

21.2. Changing Ordinary Hours of Work

Ordinary hours of work may be changed in accordance with Appendix D (subject to clauses 21.2.1 and 21.2.2 which apply to movements within the 5 day shift pattern only – e.g. a movement from day shift to night shift within the 5 day shift pattern).

21.2.1. Each employee shall have a fixed starting and finishing time alterable at a weeks’ notice except in cases of emergency when 48 hours’ notice may be given provided that a change in the weather cannot be considered as an emergency.

21.2.2. Where the emergency provisions are applied the wage rates for such employees concerned shall be increased by 10 per cent from the date of the alteration until the expiration of one (1) week after the initial notice was given.

21.3. Convenience Breaks

21.3.1. A convenience break is a short break taken when relief is required. Such a break is additional to “meal breaks” and “rest breaks” as defined in this Workplace Determination.

21.3.2. Prior to taking a convenience break, the employee shall take all reasonable steps to inform the Team Leader and the Team Leader shall take steps to provide the necessary relief to facilitate the break and to ensure the continuous running of the process area.”

[17] Clause 22 provides:

“22. Rostered Days Arrangement (RDO’s)

22.2. Rostered Days Arrangements are as set out in Appendices D and E.

22.3. Rostered days off will not apply to 6 day shift patterns.”

[18] Appendix F, clauses 1 and 2 provide:

“1. Overview of 6 Day Shift Pattern

Crew	Shift	Mon	Tue	Wed	Thurs	Fri	Sat	Sun
1	Day	12	12	12	Off	Off	Off	Off
2	Night	12	12	12	Off	Off	Off	Off
3	Day	Off	Off	Off	12	12	12	Off
4	Night	Off	Off	Off	12	12	12	Off

2. Hours of Work

2.1. Employees will work 36 hours per week (including unpaid breaks), either on day shift or night shift.

2.2. The maximum ordinary working hours each day will be 11 hours and 40 minutes (excluding unpaid breaks of 20 minutes).

2.3. Day shift will commence at 06h00 and finish at 18h00.

2.4. Night shift will commence at 18h00 and finish at 06h00 the following day.

2.5. RDO’s will not occur or accrue under the 6 day shift pattern.”

Principles of Interpretation

[19] The principles of interpretation are not in dispute. Both parties accepted that the following approach articulated by Madgwick J in Kucks v CSR Limited 4 applies:

“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.

But the task remains on of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.”

[20] Schweppes also relies on the case of Re Andrew John Short v FW Hercus Pty Ltd 5 for the proposition that the history of a relevant provision will be an aid in its interpretation. In that case Burchett J said:

“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. R [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.”

[21] Insofar as the Workplace Determination is the product of the combined effect of the previous agreement, the drafts variations proposed by the parties and the decision of the Full Bench, Schweppes also relies on the following approach adopted by the High Court to the interpretation of Agreements:

“This Court, in Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451, has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings 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. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement,. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the test, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.” 6

Entitlements of 6 day shift workers when a Public Holiday falls on a non-working day

[22] United Voice contends, in essence, that the plain meaning of clause 32.2 leads to the conclusion that a benefit arises when a six day shift worker is not rostered to work on a public holiday. It submits that the day in question will self-evidently be a “designated non-working day” under the roster, which phrase includes, but is not confined to, a rostered day off, and the benefit under clause 32.2 therefore applies.

[23] Schweppes contends that the Workplace Determination needs to be read as a whole, clause 22 and Appendix F make it clear that there are no RDOs for employees who work under the six day roster, and an interpretation consistent with the history of the clause 32.2 and previous decisions in relation to it, is that it has no application beyond RDOs. Consequently the clause has no application to 6 day shift workers.

[24] It is not uncommon for awards and agreements to provide for a payment of one day’s pay when a public holiday falls on a Rostered Day Off. For example the Manufacturing and Associated Industries and Occupations Award provides:

“44.3 Rostered day off falling on public holiday
(a) Except as provided for in clauses 44.3(b) and (c) and except where the rostered day off falls on a Saturday or a Sunday, where a full-time employee’s ordinary hours of work are structured to include a day off and such day off falls on a public holiday, the employee is entitled, at the discretion of the employer, to either:

(i) 7.6 hours of pay at the ordinary time rate; or
(ii) 7.6 hours of extra annual leave; or
(iii) a substitute day off on an alternative week day.”

[25] Provisions of this nature arose from the introduction of Rostered Days Off as part of working an average shorter working week on the basis of a nine day fortnight or 19 day month.

[26] The central question in this case is the meaning of the phrase “designated non-working day (i.e. RDO)” in clause 32.2 of the Workplace Determination. In my view the phrase needs to be interpreted in view of the history of its interpretation, its application, and in the context of other provisions of the Workplace Determination.

[27] The equivalent of clause 32.2 in the previous 2008 enterprise agreement was interpreted by Commissioner Whelan as referable to Rostered Days Off as such, not simply a day on which work is not scheduled to be performed. Following that decision the phrase in the relevant provision was altered from “designated non-working day, RDO” to “designated non-working day (i.e. RDO)” as now appears in the Workplace Determination. In my view the change reflects the meaning adopted by Commissioner Whelan that only public holidays falling on an RDO are covered by the phrase. The change makes it clearer that the meaning adopted by Commissioner Whelan applies in the future.

[28] During the Full Bench proceedings leading to the making of the Workplace Determination, United Voice sought to include a provision of the Appendix dealing with 6 day shift rosters which would have altered that position, with the consequence that a public holiday falling on any day not worked would give rise to the additional benefit. The Full Bench did not grant such a clause, but gave no reasons for not doing so. United Voice submits that the reason for not inserting the clause is because there was no need for the provision in the light of clause 32.2. Schweppes contends that the reason must have been that the Full Bench did not consider that the clause had merit.

[29] Although this issue involves an element of speculation I consider that the most likely reason why the clause sought by United Voice was not adopted by the Full Bench was that it was not considered to have merit. As the Appendix in which the clause was to be inserted, and clause 22 of the Determination, expressly stated that RDOs do not apply under the 6 day shift system, there was a real issue as to the entitlement to a benefit under clause 32.2 for employees working the 6 day roster. It is highly unlikely that the Full Bench would have found the clause unnecessary to clarify such an ambiguity. It is more likely that the Full Bench did not support the creation of such a benefit.

[30] Construing the terms of the Workplace Determination I am of the view that clause 32.2 creates a benefit only for public holidays falling on an RDO. An RDO is designated as a specific type of non-working day in work rosters. If the parties to the original wording had intended to extend the provision beyond RDOs to all non-working days, there would be no point in using the word ‘designated’ and no point in making a reference to RDOs at all. The reference that now exists, including the abbreviation “i.e.”, means that the concept “designated non-working day” has the same meaning as “RDO.” If RDOs were intended as merely an example of the concept “designated non-working day” it would be expected that the abbreviation “e.g.” would have been used.

[31] It is then a matter of determining whether there are any RDOs for employees working the 6 day roster. In this respect the Workplace Determination is very clear. Employees regularly work the same three days of every week, in one of four crews. The Determination states that RDOs do not accrue or occur under the 6 day shift pattern (Appendix F) and apparently to the same effect, Rostered Days Off will not apply under the 6 day shift patterns.

[32] In my view the true meaning of the Workplace Determination is that 6 day shift workers have no entitlement to payment or leave for a public holiday that falls on a day on which they are not required to work because such a day does not fall within the description of a “designated non-working day (i.e. RDO)” in clause 32.2. The claim for relief by United Voice is therefore dismissed.

VICE PRESIDENT WATSON

Appearances:

Mr S. Kemppi for United Voice

Ms S. Millen, of Herbert Smith Freehills, for Schweppes Australia Pty Ltd.

Hearing details:

2013

Melbourne

April

10

 1   AG897585

 2   PR520061.

 3   [2012] FWAFB 7858, [2012] FWAFB 8599 and [2012] FWAFB 8837.

 4 [1996] IRCA 166.

 5 [1993] FCA 51

 6   Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165.

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