United Workers' Union v Toll Transport Pty Ltd T/A Toll Global Logistics
[2023] FWC 1715
•21 JULY 2023
| [2023] FWC 1715 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
United Workers’ Union
v
Toll Transport Pty Ltd T/A Toll Global Logistics
(C2022/7494)
| COMMISSIONER BISSETT | MELBOURNE, 21 JULY 2023 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
On 14 November 2022 the United Workers’ Union (UWU) made an application pursuant to s.739 of the Fair Work Act 2009 (FW Act) in accordance with the dispute resolution procedure of the Toll Logistics and United Workers Union (RCA Victoria) Enterprise Agreement 2021 (Agreement) for the Commission to deal with a dispute. Toll Transport Pty Ltd T/A Toll Logistics (Toll) is the employer covered by the Agreement.
The dispute notified is threefold. First, a dispute in relation to permanent employment and job security, second a dispute in relation to notice of and access to Accrued Days Off (ADOs) and third, a dispute in relation to the number of employees who may be absent over the restricted period in December/January each year. Each part of the dispute relates to matters at the Toll Altona site (also referred to as the Toll Nike Distribution Centre site).
The dispute in relation to ADOs has been subject to an earlier decision of the Commission.[1] The UWU now seeks determination of the dispute as it relates to permanent employment and job security. The determination of this matter is without prejudice to other matters covered in the dispute notification for which determination may be sought or the matter discontinued, at a later date.
Directions were therefore issued for the hearing of the dispute in relation to the permanent employment matters that encompass the operation of clauses 8.1 and 9 of the Agreement.
The UWU proposed that the questions for the Commission to answer in respect to this aspect of its application are:
1.Whether there is a binding obligation on the Respondent to maintain a minimum permanent headcount of 175 employees at the site;
2. Whether there is a binding obligation on the Respondent to offer permanent employment to labour hire workers who are engaged on a regular and systematic basis for 9 continuous months at the Altona facility; and
3. Whether the Respondent is permitted to offer outer limits contracts of employment to prospective employees at the Altona facility: a. At all; and/or b. In satisfaction of its obligation to offer permanent employment to labour hire workers (if the obligation exists).
During the hearing of the application and, on the basis of Toll’s advice that labour hire workers working at the Altona site were not employees of Toll and that Toll would not be offering those workers outer limit contracts (the employer of the labour hire workers would do this), the UWU determined not to press question 3.
Prior to the hearing of the application I granted Toll permission to be represented by a lawyer pursuant to s.596(2)(a) of the FW Act.
SUBMISSIONS AND EVIDENCE
The UWU filed an outline of submissions and witness statements of Mr Greg Morrell (Toll employee and UWU site delegate) and Mr Jonathon Dixon (UWU Coordinator in the Logistics Team) on 5 May 2023. The UWU also filed submissions in reply on 6 June 2023.
Toll filed an outline of submissions and witness statement of James Vidot (Site Manager for Toll at the Altona site) on 1 June 2023.
None of the witnesses were required for cross examination. The witness statements were admitted into evidence as filed.
The application was heard on 13 June 2023.
JURISDICTION
In its application for the Commission to deal with a dispute the UWU said the following:
Outer limits contracts of employment
6.The Toll Nike workforce is composed of approximately 150 direct permanent employees, and approximately 100 workers engaged through Toll’s wholly owned labour hire agency, Toll People.
7. As part of agreement negotiations in November 2021, the Respondent agreed to increase the minimum number of permanent jobs on the site to 175. The negotiated outcome is reflected in Schedule A, clause 9.
8. Clause 8.1.2 provides that casual workers, whether directly or indirectly employed, will be eligible for permanent positions after 9 months regular, systematic and continuous service at the site.
9. In or around March 2022, the Respondent notified the workforce that Toll would lose the Nike contract in or around mid 2024.
10. In or around July 2022 [the] Respondent notified the workforce that the Nike contract was extended until 2025.
11. Clause 9.3 of Schedule provides that the employer shall undertake quarterly recruitment intakes to replace available roles, however no permanent employment offers have been made since mid 2021, and there continues to be a large number of regular and long serving agency workers employed by Toll People at the site.
12. Toll began advertising for outer limits contracts at the site in or around June 2022.
13. Clause 8 Employment categories stipulates that employees may be employed on a casual or weekly (ongoing) basis. The agreement does not provide for out[er] limits contracts of employment.
The dispute in this respect could not be resolved by discussion at the workplace.
The aspects of the dispute currently before the Commission for resolution are in relation to whether there is a binding obligation on Toll to maintain a minimum staffing level, whether there is a binding obligation on Toll to offer permanent employment to labour hire employees who have been engaged on a regular and systematic basis for at least nine months and if Toll can, under the terms of the Agreement, offer outer limit contracts.
I am satisfied that the matters in dispute are matters which arise pursuant to the Agreement. Further, I am satisfied that the matters have been raised and sought to be addressed in accordance with the dispute settlement procedure of the Agreement and have been referred to the Commission in accordance with that procedure.
I am therefore satisfied that I have jurisdiction to deal with the dispute.
THE AGREEMENT
The Agreement consists of Part A which records ‘common terms’ and Part B which provides four site specific schedules and a further schedule for ‘greenfield operations’. Schedule A applies at Toll Altona, the site subject to the dispute before the Commission.
Clauses 8 and 9 of Schedule A of the Agreement are relevant to the dispute before the Commission and provide as follows:
8. Employment Categories
8.1. Casual Employee
8.1.1. A Casual Employee whether directly or indirectly employed, will be paid at the Level 1 base rate of pay for all ordinary hours worked, plus 25 per cent casual loading.
8.1.2. In the event that a permanent Employee vacancy arises a casual Employee, whether employed directly or indirectly, on a systematic, consistent and continuous basis for a period of not less than 9 months will be eligible for conversion to permanent status subject to screening criteria being met. Such screening criteria may include:
• Length of service / length of assignment
• Attendance levels
• Toll Way values and behaviours
…
9. Maintaining permanent employment and job security
9.1. It is the intention of all parties to maximise the opportunity for permanent employment. The Employer agrees to meet with the Union and delegates on a quarterly basis to discuss the potential for creation of permanent employment opportunities.
9.2. During the life of this Agreement, it is the intention of the Employer to have no less than 175 permanent Employees. In the event that significant operational matters arise preventing this number from being maintained, the Employer shall first discuss with the Union and delegates as to the reasons for this.
9.3. The Employer shall undertake quarterly recruitment intakes to replace any available roles. The first of these intakes will commence no later than four (4) weeks after the Operative Date. As per clause 8.1.2, length of service/length of assignment shall be considered as part of the selection criteria for permanency. All permanent vacancies will be posted on the site noticeboard at first instance.
PRINCIPLES OF INTERPRETATION
The parties agree that the principles applicable to the interpretation of an agreement were set out by the Full Bench in AMWU v Berri Pty Ltd.[2]
The Respondent submits that, more recently, the Federal Court in Workpac Pty Ltd v Skene[3] set out the approach to be taken in interpreting an enterprise agreement as follows:
[197] The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”. The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced. [citations omitted]
I have taken into account the principles in AMWU v Berri and Workpac v Skene in the determination of the dispute before me.
IS THERE A BINDING OBLIGATION ON TOLL TO MAINTAIN A MINIMUM PERMANENT HEADCOUNT OF 175 EMPLOYEES AT THE SITE?
The UWU submits that the purpose of clause 9 is expressed in its heading and the first sentence of clause 9.1, that is to maximise the opportunity for, and to maintain, permanent employment. That purpose is then realised through the obligations imposed on the employer in clauses 9.1-9.3 – that is to hold quarterly discussions, to have a minimum head count of 175 permanent employees except where significant operational barriers prevent it, to have a quarterly intake to fill permanent positions, to consider the length of employment of labour hire workers as part of the selection process and to post notices of vacancies on notice boards.
The UWU agrees that the ‘intention to maximise job security’ is aspirational in nature but argues that the ‘intention to have no less than 175 permanent employees’ is not. It submits that, if the staffing level of 175 permanent employees was only intended to be aspirational, it is not clear why it would be necessary to provide for an exception (of significant operational matters).
The UWU relies on the decision of the Full Court of the Federal Court in National Tertiary Education Union v La Trobe University[4] (NTEU v La Trobe) in support of its submissions. In that matter the Full Court was concerned with the operation of the job security clause. The clause stated:
The University is committed to job security. Wherever possible redundancies are to be avoided and compulsory retrenchment used as a last resort. The University reserves the right to use the agreed redundancy procedures and provisions set out in this Agreement when all reasonable attempts to mitigate against such action and to avoid job loss have been unsuccessful.
The UWU said that the Full Court found the first sentence of the clause was aspirational but the second sentence imposed binding obligations. This was explained by Bromberg J:
The second sentence deals with method. It identifies the means or mechanism by which the overarching goal is to be effected or carried into practice. The context is prescriptive. The words specify what is to be done (redundancies are to be avoided) and what is not to be done (compulsory retrenchment is only to be used as a last resort) and when and in what circumstances that is to occur (“wherever possible”). In that context, there is nothing aspirational conveyed by the word “are” in the phrase “are to be avoided”. Nor does a direction made in that context that something only be done as “a last resort” connote an aspiration. Whilst not an absolute prohibition, such a stipulation is nevertheless injunctive. It imposes a stringent limitation upon action otherwise available.
The context includes that the reservation of La Trobe’s rights in the third sentence would be unnecessary if the second sentence left those rights unaffected. The third sentence reflects that the second sentence contains a limitation upon at least some of La Trobe’s rights. It would not have been necessary for La Trobe to have reserved its rights as against something that was merely aspirational. The qualified nature of the reservation in the third sentence is also couched in prescriptive rather than aspirational terms, and, in the context of its close connection with the second sentence, gives colour to the obligational nature of the second sentence. In that context, the words of the second sentence of cl 74 are words of obligation.
The UWU draws parallels between the reasoning of Bromberg J and the clause currently before the Commission.
The UWU submits that the prescriptive language (‘have no less than’, ‘shall’, ‘replace’) of clause 9.1 is designed to give effect to the aspiration. For this reason the UWU says that there is a binding obligation on Toll to maintain a headcount of 175 permanent employees at the site.
Toll submits that clause 9.2 of the Agreement does no more than express an intention of Toll to maintain a headcount of 175 permanent employees and, while the clause expresses a desire of the parties to maximise permanent employment opportunities, it does not impose any binding obligations on Toll.
In support of its submissions Toll distinguishes clauses 9.1 and 9.2 which establish clear ‘intentions’ and clause 9.3 which, it says, uses ‘promissory language that clearly imposes an obligation’ on Toll.
Toll also relies on the decision in NTEU v La Trobe but says that it supports a distinction between terms of an enterprise agreement that connote a binding obligation and those which are merely aspirational in nature where it states:
[30]…There is every reason to approach the reading of such an instrument with a disposition to finding a binding obligation, or the establishment of a substantive entitlement, in each of the operative provisions thereof. Enterprise agreements, by contrast, are the doings of the parties themselves (here using the term “parties” in the loose sense of the employer and those of its employees who, through their bargaining representatives, were involved in the relevant negotiations). Although the content of enterprise agreements is heavily regulated by the provisions of Divs 4 and 5 of Pt 2-4 of the FW Act, there is nothing, so far as I can see, to prevent the parties from including in their agreement provisions or expressions which involve no obligations at all. Indeed, the admixture in industrial agreements of provisions which give rise to obligations and those which are merely “aspirational” is a practice of long standing: see, by way of a well-known example, the argument advanced on behalf of the defendant union in Ford Motor Co Ltd v Amalgamated Union of Engineering and Foundry Workers [1969] 2 QB 303, 330. That the parties to an enterprise agreement have included aspirational or hortatory provisions in their document should be no source of surprise. Neither should there be any a priori assumption that the parties are unlikely to have included a provision which involved the establishment of no concrete entitlement or binding obligation.
Toll submits that, contrary to the submissions of the UWU in relation to NTEU v La Trobe, the effect of that decision is to draw a distinction between binding obligations, ‘being prescribed actions to be taken by the employer in pursuit of the clauses’ objectives, and those which are ‘merely aspirational.’
Toll says that the decision in NTEU v La Trobe can be distinguished as Clause 9 does not deal with a prescriptive means of achieving a headcount of 175 permanent employees nor does it provide a means to put the aspiration into place.
Toll submits that, having regard to the purpose of the Agreement, it was not intended that clause 9 would impede the operation of the warehouse (at Altona). This, it says, is why the qualification in relation to Toll’s operation needs is included in clause 9.2. Toll says that, in circumstances where its operational needs are such that it cannot maintain a headcount of 175 permanent employees, the Agreement cannot be read to override such circumstances.
Given this, Toll submits that there is no binding obligation on Toll to maintain a headcount of 175 permanent employees.
Consideration of question 1
While it might be arguable that the statement found in clause 9.2 that ‘it is the intention of the Employer to have no less than 175 permanent Employees’ is no more than aspirational, read in conjunction with the next sentence that the Employer will discuss with Employees ‘in the event of a significant operational matters [which arise] preventing the number from being maintained’ strongly supports a conclusion that 175 permanent employees is not just an aspirational outcome but is a commitment which can only be derogated from in specific circumstances.
If the maintenance of a headcount of 175 permanent employees was only aspirational there would be no need for any mechanism by which matters that might impinge on this would need to be noted – in this case ‘significant operational matters’.
In NTEU v La Trobe Jessup J observed that the ‘admixture in industrial agreements of provisions which give rise to obligations and those that are merely “aspirational” is a practice of long standing’ and that
parties to an enterprise agreement have included aspirational or hortatory provisions in their document should be no source of surprise. Neither should there be any a priori assumption that the parties are unlikely to have included a provision which involved the establishment of no concrete entitlement or binding obligation.[5]
In his decision Bromberg J accepted that the first sentence in the impugned paragraph did not impose a binding obligation on La Trobe University (this was not a matter in dispute). However, he found that the second sentence dealt with the method by which the ‘overarching goal is to be affected or carried into practice.’ He found that ‘[t]he context is prescriptive. The words specify what is to be done…and what is not to be done…and when and in what circumstances that is to occur’.[6] Importantly, his Honour found that ‘in that context, there is nothing aspirational conveyed by the word ‘are’ in the phrase “are to be avoided”. Nor does a direction in that context that something only to be done as “a last resort” connote an aspiration.’[7]
Bromberg J also found that the ‘context includes that the reservation of La Trobe’s rights in the third sentence would be unnecessary if the second sentence left those rights unaffected. The third sentence reflects that the second sentence contains a limitation upon at least some of La Trobe’s rights.’[8]
It can be accepted that clause 9 of the Agreement may contain aspirational goals and also impose obligations on Toll. While it should not be assumed that the parties have not included aspirational statements which impose no obligations, likewise it should not be assumed that a clause cannot contain both aspirations and obligations. It is clearly aspirational (the goal) that the parties wish to ‘maximise the opportunity for permanent employment.’ There are things to be done in striving to achieve this goal – to have no less that 175 permanent employees, quarterly meetings with the UWU and delegates to discuss the potential for creation of permanent employment opportunities, quarterly recruitment – with the first to commence within 4 weeks of the operative date of the agreement – and the posting of permanent vacancies on the notice board. These are positive obligations imposed on Toll by the operation of clause 9 as a whole. An argument that clauses 9.1 and 9.2 are purely aspirational with the only promise contained in clause 9.3 must therefore be rejected.
The statement in the first sentence of clause 9.2 must be viewed in the context of the clause as a whole (and in conjunction with the second sentence in clause 9.2 which I discuss further below). If the first sentence of clause 9.2 is purely aspirational and imposes no obligation on Toll then to what purpose are the obligations that clearly exist in other parts of clause 9? If clause 9.2 imposes no obligation on Toll what is the purpose of commencing a recruitment program? There is nowhere else in the Agreement where the objective of that recruitment is spelt out. If there exists no numerical purpose (ie the number of permanent employees) it seems the rest of the clause has no work to do. This, in my view, strongly supports a finding that the intention of ‘no less than 175 permanent employees’ is more than aspirational.
The second sentence, as Bromberg J described it, is a reservation of Toll’s rights that would be ‘unnecessary if the [first] sentence left those rights unaffected.’ That is, the second sentence in clause 9.2 provides circumstances where the obligation on Toll which is present in the first sentence (no less than 175 permanent employees) may well be reserved. If there was no obligation on Toll by virtue of the first sentence the second sentence would be unnecessary.
I would also observe that the first sentence of clause 9.2 sets a lower limit on the number of permanent employees – ‘no less than 175’ permanent employees. It places no obligation on Toll beyond this number. If it is aspirational it is not clear why any lower limit would need to be spelt out as is clearly the case.
I do not accept the submissions of Toll that the current circumstances are distinguishable from those in NTEU v La Trobe because I do not accept that clause 9 does not contain prescriptive means for maximising permanent employment. Firstly, in clause 9.1 Toll is required to meet with the UWU and the Delegates on a quarterly basis to discuss the potential for the creation of permanent employment opportunities. Just because the Agreement does not describe the content of these discussions does not make the requirement to meet and hold such discussions any less prescriptive but, in any event, the agenda for such meetings is set by the words of the clause – the potential for the creation of permanent employment opportunities.
Secondly, clause 9.2 sets a minimum permanent staffing level of 175 employees. That this is Toll’s ‘intention’ does not, in my view, detract from the obligatory nature of intention. Further, the ‘intention’ must also be read in the context of achieving a minimum staffing level and not be confined to the number alone. To paraphrase what was said in NTEU v La Trobe, the context is prescriptive (a minimum staffing level of 175 permanent employees) and, in that context, there is nothing aspirational conveyed by the word ‘intention’.
Thirdly, clause 9.3 states that Toll shall undertake quarterly recruitment to replace available roles, the first to commence within four weeks of the operative date of the Agreement. Criteria for selection of non-permanent employees (with reference to a process outlined in clause 8.1.2) for permanent roles is indicated.
These three matters indicate a prescription that Toll, incorrectly in my view, claims does not exist.
I see no conflict between Toll’s claim that the framers of the Agreement did not intend that the Agreement would impede operations of the warehouse and an intention to have 175 permanent employees on the site. It may well be argued that permanent employees improve operations and productivity of the warehouse although I do not need to make any finding of such. Certainly Toll’s intention that the operations not be impeded by the Agreement does not, in and of itself, mean that there are no obligations placed on Toll by clause 9 or any other clause in the Agreement.
I am therefore satisfied that clause 9 creates a binding obligation on Toll to have no less than 175 permanent employees.
IS THERE A BINDING OBLIGATION ON TOLL TO OFFER PERMANENT EMPLOYMENT TO LABOUR HIRE WORKERS WHO ARE ENGAGED ON A REGULAR AND SYSTEMATIC BASIS FOR 9 CONTINUOUS MONTHS AT THE ALTONA SITE?
The UWU submits that clause 9.3 sets out the procedure by which Toll is to meet the minimum permanent headcount, that is, it will undertake quarterly recruitment, and, as per clause 8.1.2, length of service shall be considered as part of selection criteria.
Clause 8.1 of the Agreement is headed ‘Casual Employee’. Clause 8.1.2 is in relation to conversion of ‘causal Employees’ to permanent status where a permanent vacancy arises.
The UWU submits that the reference to clause 8.1.2 within clause 9.3 suggests that the framers of the document intended that the quarterly recruitment intake referred to in clause 9.3 should be drawn from the pool of casual or labour hire employees.
As to the reference to ‘available roles’ in clause 9.3 the UWU submits that this should be determined by reference to the 175 permanent headcount in clause 9.2.
The UWU submits that
the use of the words ‘replace’ in 9.3 and ‘maintain’ in the heading of clause 9 and the second sentence of clause 9.2 supports the interpretation that permanent roles become available through attrition when the total number of permanent employees falls below 175.
The UWU further notes that there is no explicit language in the Agreement setting out how a permanent position would become available. It is therefore necessary, it submits, to look at the broader context of the document to resolve this uncertainty. In this respect the UWU relies on the history of the clause including the 2013 agreement, the 2016 agreement and the 2019 agreements which each applied at the Altona site and preceded the current agreement.
The UWU submits that a consistent thread running through these agreements is the objective of maintaining specified levels of permanent employees by replacing those who leave with new permanent employees recruited from the labour hire pool.
Having regard to the history and context as well as past practice at the site – as set out in the uncontested evidence of Mr Morrell – a permanent role ‘becomes available’ when the headcount of permanent employees falls below the otherwise agreed level.
The UWU submits that clauses 8.1 and 9 do not create an absolute right of a labour hire worker to conversion to permanent employment, rather the labour hire worker becomes eligible for conversion if a permanent vacancy arises and they meet the criteria.
Toll submits that the obligation on Toll to convert a casual employee who has at least 9 months service on a regular and systematic basis to permanent employment is subject to three qualifications:
1. That the worker is employed as contemplated by the Agreement
2. That the applicable employee meets the criteria in clause 8.1.12
3. That there is a permanent employee vacancy.
Toll rejects that a permanent vacancy arises when the permanent head count falls below 175 as posited by the UWU, particularly, it says, as the permanent headcount of 175 is only aspirational and not binding.
Further, Toll submits that, while clause 9.3 imposes certain obligations in relation to quarterly recruitment, that obligation only arises if it is necessary to ‘replace any available roles.’ That is, for recruitment to occur there must be an ‘available role’. It cannot be inferred from the terms of the Agreement that a role is ‘available’ just because the permanent headcount falls below 175.
Toll also submits that there is no binding obligation on the Respondent to offer permanent employment to labour hire workers in circumstances where there is no operational requirement for such. In this respect Toll submits that the existence of a vacancy must be read in the context of the operational requirements of Toll.
Toll contends that, in accordance with the principals in AMWU v Berri, the construction of the Agreement must have regard to the industrial context. In circumstances where the Agreement does not expressly identify what an ‘employee vacancy’ means, the clause should be read to give effect to the Agreement’s evident purpose. In this case that supports a conclusion that ‘vacancy’ means a vacancy that meets the operational needs of Toll.
Toll cautions against reliance on previous agreements and prior negotiations but, in any event, submits that such matters cannot be used to rewrite a provision to give effect to an intention different to that of the parties.
Finally, Toll submits that this aspect of the dispute relates to employees not employed by Toll but rather, employed by Toll People (a separate legal entity). It says that the capitalised ‘E’ in the phrase casual Employees in clause 8.1.2, refers to Employees as defined in the Agreement. ‘Employee’ is defined in the Agreement as ‘an individual employed by Toll Transport Pty Limited and who is covered by the Agreement’. As the labour hire employees are employed by Toll People they are not covered by the Agreement and hence cannot be subject to the dispute under the Agreement.
Consideration of question 2
Is a casual Employee an Employee to whom the Agreement applies?
Clause 8.1 of the Agreement is referable to ‘casual Employees’. It appears that Toll does not directly employee any supplementary, non-permanent workers so that there are no ‘casual employees’ as that term is commonly understood, who are covered by the Agreement (the Agreement applying to employees of Toll Altona (and other specified sites) only). Rather, the permanent workforce is supplemented by labour hire workers provided by Toll People. Toll People is not an employer covered by the Agreement such that those employees of Toll People are not covered by the Agreement. On a strict interpretation clause 8.1 appears to have no work to do.
The employment status of the labour hire workers engaged through Toll People is not a matter before the Commission. It may well be that such workers are engaged by Toll People on a casual basis. If this is the case such workers will be captured by clause 8.1 as they are casual employees employed on a ‘direct or indirect’ basis as that phrase is used in clause 8.1.1 and 8.1.2. The Agreement therefore would appear to have work to do for such workers. Clause 8.1.1 and clause 8.1.2 certainly impose some obligation on Toll and the UWU, as a party covered by the Agreement (and to whom the Agreement is expressed to apply in clause 3.1), with respect to casual employees directly employed by Toll. In this respect not a lot should be read into the capitalised ‘E’ in Employee. If the Agreement only applies to Employees as defining the word ‘indirect’ in reference to casual employees would have no work to do. I consider the Agreement should be beneficially read in this respect so that employees engaged through Toll People are ‘indirect casual Employees’ for the purposes of clause 8.1.
Whilst Toll is correct that the Commission does not have jurisdiction in relation to workers engaged by Toll People, the Commission’s jurisdiction does extend to the process by which permanent vacancies may be filled and any order of preference in doing this. To this extent the provisions of clause 8.1 are highly relevant to the dispute before me.
This dispute is about the operation of clause 9. Clause 9.3 relates to recruitment to replace available roles. It is not about the conversion of casual employees employed by Toll People. Clause 8.1 is brought within the scope of the dispute because of its reference in clause 9.3 but also because clause 8.1.2 suggests that the pool of direct and indirect casual employees is the pool from which permanent vacancies are to be filled. When the requirements of clause 9.3 are considered it is not possible to escape clause 8.1.2.
While I acknowledge that clause 9.3 does not explicitly state that ‘available roles’ under clause 9.3 are to be filled by directly or indirectly employed casual employees (or employees of Toll People), it would be a highly technical and pedantic approach, and one which ignored the context and language of the Agreement, to ignore clause 8.1 in considering any recruitment obligation in relation to permanent employment as contemplated in clause 9.3.
What are the ‘available roles’ to be filled in clause 9.3?
The UWU says that I can determine what is meant by the term ‘available roles’ by a consideration of predecessors to the current Agreement and by a consideration of past practices of Toll in filling vacant permanent positions. Toll says that caution should be taken in such an approach.
I agree that caution must be exercised in relying on previous agreements and/or workplace practices. While I agree that ‘the way in which a workgroup…conducts itself under successive [agreements] remains a permissible aid to the construction of a successor’ agreement[9] it is also the case that ‘great care must be taken in drawing upon a suggested common understanding as an aide to construction.’[10] This is because it is the terms of the agreement that must be construed and ‘parties cannot contract out of, or waive the terms of an enterprise agreement’ by some alternative practice that is not is accord with the terms of the relevant agreement.
As I have found above I consider it appropriate, in considering the operation of clause 9.3 to have regard to clause 8.1.2. The reference in clause 9.3 to clause 8.1.2 suggests that some context for clause 9.3 should be drawn from the earlier clause.
Clause 8.1.2 talks to the occurrence of a ‘permanent Employee vacancy’. As an Employee is a person (by definition in clause 2) covered by the Agreement, a permanent Employee vacancy must relate to a vacancy caused by a permanent Employee (for reasons of resignation, promotion or some other reason) no longer occupying the position.
I am satisfied that ‘available roles’, when considered in the context of clause 9 (which relates to opportunities for permanent employment) and clause 8.1.2 (which establishes those matters to consider in appointment to a permanent Employee vacancy), relates to vacancies for permanent employment defined within clause 9. As I have found above that there is a binding commitment to have 175 permanent employees it follows that the ‘available roles’ are those within the minimum level of 175 permanent employees.
Toll argues that the ‘available roles’ should be considered to be that number determined by the operational requirements of Toll Altona. Whilst, ordinarily, that might be the case, such an interpretation of this Agreement would be to ignore what was agreed and committed to by the parties in the Agreement.
As to the reliance placed on previous Agreements by the UWU, I do not consider it necessary to rely on those Agreements but, in any event, do not consider that they support the conclusions sought by the UWU. This is because the wording of the clauses has changed very little over its various iterations and the term ‘available roles’ does not appear to be defined in any predecessor agreement. Rather, the conclusion above can be drawn from the words of the Agreement, read in context.
I would note that my conclusion appears to be supported by (although does not rely on) the past conduct of the parties as detailed in the evidence of Mr Morrell[11] which broadly aligns with that of Mr Vidot.[12]
Is the means by which the available roles are to be filled that specified in clause 8.1.2?
There is no doubt that the selection criteria by which non-permanent employees are to be selected to fill available permanent Employee positions must include their length of service/assignment at the Toll Altona site.
I would observe that it is not apparent that labour hire workers with more than 9 months service at Toll automatically gain selection for Permanent employee vacancies as clause 9.2 only states that length of service/length of assignment shall be considered as part of the selection criteria. However, a reading of clause 8.1.2 in conjunction with clause 9.3 would suggest that each of the requirements in these two clauses can be met by Toll considering labour hire employees with more than 9 months length of service/assignment for permanent vacancies that may arise in maintaining a headcount of 175 permanent employees.
Conclusion
Labour hire workers (‘casual Employees’) with more than 9 months service are eligible for conversion should a vacancy for permanent employment arise.
Available roles are permanent positions which are vacant. The number of permanent vacancies is referable to the minimum permanent staffing levels committed to by the Respondent pursuant to clause 9 of the Agreement.
Whilst there is no mandatory obligation to offer ‘available roles’ under clause 9 to labour hire employees who meet the requirements of clause 8.1.2, length of service/length of assignment is a relevant consideration in filling available roles under clause 9.3 and to offer such roles to labour hire workers would also ensure that Toll is meeting its obligations under clause 8.1.2.
MUST TOLL MAINTAIN A STAFFING LEVEL OF 175 PERMANENT EMPLOYEES?
Despite what is set out above there is an exception found in clause 9.2 to the maintenance of a staffing level of 175 permanent employees.
Clause 9.2 of the Agreement, while mandating a permanent staffing level of 175 employees, does allow for Toll to enter into discussions with the UWU if there are ‘significant operational matters’ that may limit Toll from maintaining the mandated staffing numbers.
There are accepted changes occurring at Toll Altona, although with a changing implementation date, which would appear, on their face, to come within ‘significant operational issues’. Just as the parties met and worked through the challenges of the COVID-19 pandemic, it is appropriate that discussions occur as soon as possible (without making judgement as to whether these have commenced or have occurred) to respond to what is known to be coming.
DISPOSITION
In accordance with my findings above I answer the questions asked as follows:
1.Whether there is a binding obligation on the Respondent to maintain a minimum permanent headcount of 175 employees at the site?
Answer: yes there is such an obligation
2.Whether there is a binding obligation on the Respondent to offer permanent employment to labour hire workers who are engaged on a regular and systematic basis for 9 continuous months at the Altona facility?
Answer: while clause 9.3 of the Agreement does not specify that it is the employees contemplated by clause 8.1.2, a reading of the clauses in context suggests that, to the extent that Toll is required to comply with both clauses, the recruitment necessary to comply with clause 9 should be that contemplated by clause 8.1.2.
COMMISSIONER
Appearances:
N Pefanis for the United Workers’ Union
K Sweatman of Kingston Reid for the Respondent
Hearing details:
2023.
Melbourne:
13 June
[1] [2023] FWC 1308
[2] [2017] FWCFB 3005, [114]
[3] [2018] FCAFC 131
[4] (2015) 254 IR 238
[5] NTEU v La Trobe, [30]
[6] NTEU v La Trobe, [67]
[7] Ibid
[8] NTEU v La Trobe, [68]
[9] Transport Workers Union v Linfox [2014] FCA 829, cited in Australian Tram and Bus Industry Union v KDR Victoria Pty Ltd T/A Yarra Trams [2021] FCA 1377, [62]
[10] Australian Liquor, Hospitality and Miscellaneous Workers’ Union v Prestige Property Services Pty Ltd [2006] FCA 11, [44] cited in Australian Tram and Bus Industry Union v KDR Victoria Pty Ltd T/A Yarra Trams [2021] FCA 1377, [63]
[11] Exhibit UWU 1, paragraph 17
[12] Exhibit Toll 1, paragraph 10
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